United States District Court, E.D. North Carolina, Southern Division
VIRGINIUS REECE PHIPPS, TRAVIS MITCHELL PHIPPS, and CHARLIE CAROLE PHIPPS, Plaintiffs,
BENJAMIN L. GRADY, BLAKE WALLACE, Individually and in His Official Capacity as the Sheriff of Duplin County, and DUPLIN COUNTY SHERIFF'S OFFICE, Defendants.
MALCOLM J. HOWARD, SENIOR UNITED STATES DISTRICT JUDGE.
matter is before the court on the motion to dismiss filed by
defendants' Sheriff Blake Wallace ("Sheriff
Wallace") and the entity identified as the Duplin County
Sheriff s Office ("Sheriff's Office") [DE #17]
as well as the motion to dismiss or for judgment on the
pleadings filed by defendant Benjamin L. Grady
("defendant Grady") [DE #26] . Plaintiffs have
responded to the motions in one filing [DE #31 and #32].
Defendants Sherriff Wallace and the Sheriff's Office
filed a reply [DE #33].
complaint arises from a long running property dispute between
plaintiff Virginius Phipps and defendant Grady.
Plaintiffs assert unconstitutional seizures of their
persons and property by all defendants based upon allegations
of trespass to land levied by defendant Grady against
plaintiffs. Plaintiffs also assert a claim of malicious
prosecution against defendant Grady. The complaint divides
the causes of action as follows: (1) § 1983 action
against Sheriff Wallace, the Sheriff's Office, and
defendant Grady; and (2) malicious prosecution against
defendant Grady. According to the complaint, on April 18,
2014, defendant Grady contacted the Sheriff's Office and
reported that plaintiffs were trespassing on his real
property. Deputies responded, met with both plaintiff(s) and
defendant Grady, and then subsequently presented the
allegations to a state magistrate, who in turn issued a
warrant for plaintiff(s)' arrest for criminal
trespassing. The deputies then served plaintiff(s) with the
warrant, and plaintiff(s) spent several hours in jail before
being released on bond. Plaintiff(s)' excavator and other
personal property were confiscated as a result of the arrest.
criminal charges against plaintiffs were dismissed on
November 18, 2016. On November 21, 2016, Duplin County
District Court Judge Henry L. Stevens, IV ordered the return
of all property seized in connection with the associated
court notes the facts presented in the instant complaint are
virtually identical to a prior suit filed by plaintiff
Virginius Phipps. On May 9, 2013, plaintiff Virginius Phipps
filed suit against defendant Grady, Sheriff Wallace, various
deputies, and Duplin County. See Phipps v. Grady,
No. 7:13-CV-95-BO (E.D. N.C. May 5, 2013) [D.E. #1] . In
response to defendant's motion to dismiss that matter,
plaintiff Phipps filed a voluntary dismissal pursuant to
Federal Rule of Civil Procedure 41. Plaintiff Phipps refiled
the action on May 14, 2015. See Phipps v. Grady, No.
7:15-CV-103-F (E.D. N.C. May 14, 2015) [DE #4]. In that
complaint, Plaintiff Phipps asserted a § 1983 claim for
unconstitutional seizures of his person and property
occurring on December 14, 2009 and April 30, 2011 regarding
the same land dispute as the instant matter. By order filed
August 31, 2016, Senior United States District Judge James C.
Fox dismissed Sheriff Wallace, his deputies and Duplin County
for plaintiff's failure to state a claim upon which
relief could be granted. Two other defendants were dismissed
for insufficient service. Finally, the court declined to
exercise supplemental .jurisdiction over the remaining claim
of malicious prosecution against defendant Grady, and the
case was dismissed. See Order DE #48, No.
7:15-CV-103-F, (E.D. N.C. October 25, 2016).
Standard of Review
federal district court confronted with a motion to dismiss
for failure to state a claim should view the allegations of
the complaint in the light most favorable to the plaintiff.
See Ibarra v. United States, 120 F.3d 472, 474 (4th
Cir. 1997). The intent of Rule 12(b) (6) is to test the
sufficiency of a complaint. Edwards v. City of
Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999). A Rule
12(b)(6) motion "'does not resolve contests
surrounding the facts, the merits of a claim, or the
applicability of defenses.'" Id. (quoting
Republican Party v. Martin, 980 F.2d 943, 952 (4th
Cir. 1992)). "[O]nce a claim has been stated adequately,
it may be supported by showing any set of facts consistent
with the allegations in the complaint." Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 563 (2007) .
complaint need not 'make a case' against a defendant
or 'forecast evidence sufficient to prove an element'
of the claim." Chao v. Rivendell Woods, Inc.,
415 F.3d 342, 349 (4th Cir. 2005) (quoting Iodice v.
United States, 289 F.3d 270, 281 (4th Cir. 2002)). Rule
8 of the Federal Rules of Civil Procedure provides "for
simplicity in pleading that intends to give little more than
notice to the defendant of the plaintiff s claims and that
defers until after discovery any challenge to those claims
insofar as they rely on facts." Teachers' Ret.
Sys. of La. v. Hunter, 477 F.3d 162, 170 (4th Cir.
2007). A complaint is generally sufficient if its
"'allegations are detailed and informative enough to
enable the defendant to respond.'" Chao, 415
F.3d at 349 (quoting 5 Charles Alan Wright & Arthur
R. Miller, Federal Practice and Procedure, §
1215 at 193 (3d ed. 2004)). Thus, a complaint satisfies the
Rules if it gives "fair notice" of the claim and
"the grounds upon which it rests."
Twombly, 550 U.S. at 554-55 (internal quotation
Duplin County Sheriff's Office
Sheriff's Office moves this court to dismiss it from this
suit because it is not a legal entity capable of being sued.
"The capacity of a governmental body to be sued in the
federal courts is governed by the law of the state in which
the district court is held." Avery v. County of
Burke, 660 F.2d 111, 113-14 (4th Cir. 1981). In North
Carolina, absent a statute, "the capacity to be sued
exists only in persons in being." McPherson v. First
Citizens National Bank, 240 N.C. 1, 18, 81 S.E.2d 386,
397 ( N.C. 1954). By statute, the city or county is the legal
entity which can sue and be sued, not the sheriff's
department or police department of a county or city.
See N.C. Gen. Stat. § 153A- 11; N.C. Gen. Stat.
§ 160A-11; Hughes v. Bedsole, 913 F.Supp. 420,
426 (E.D. N.C. 1994) (granting summary judgment for
Cumberland County Sheriff's Department because plaintiff
presented no authority to show department was legal entity);
Graham v. Golden Corral, No. 5:04-CV-541-H (E.D.
N.C. Jan. 7, 2005) (dismissing Fayetteville Police Department
because it is not a legal entity which can sue or be sued);
Phipps v. Grady, No. 7:15-CV-103-F, 2016 WL 4556763
(E.D. N.C. Aug. 31, 2016) (dismissing claims against Duplin
County Sheriff's Office for lack of capacity.) Therefore,
Duplin County Sheriff's Office is DISMISSED.
argues because there are no allegations of any direct
involvement by Sheriff Wallace and because a defendant cannot
be held liable vicariously for the conduct of his
subordinates, Sheriff Wallace, in his individual capacity,
should be dismissed. Plaintiff responded to the motion to
dismiss, but makes no response to this argument. It is well
settled that a supervisor may not be held liable under §
1983 under the doctrine of respondeat superior. Monell v.
Dep't. of Social Servs., 436 U.S. 658, 690-91
(1978); see also Vinnedge v. Gibbs, 550 F.2d 926,
928 (4th Cir. 1977) . While a supervisor may be held liable
in certain circumstances for constitutional injuries
inflicted by his subordinates, such facts have not been
alleged here. See Shaw v. Stroud, 13 F.3d 791, 799
(4th Cir. 1994) (laying out the elements of supervisor
Wallace argues plaintiffs have failed to allege sufficient
facts to support an official capacity claim against him. A
local government entity cannot be held liable under §
1983 on a respondeat superior theory of liability. Monell
v. Dep't of Soc. Servs., 436 U.S. 658, 690-91
(1978). Instead, to establish liability of the government
entity, a plaintiff must demonstrate that (1) a government
actor deprived the plaintiff of his federal rights, and (2)
the harm was the result of an official policy or custom of
the local entity. Lytle v. Doyle, 326 F.3d 463, 471
(4th Cir. 2003). Here, plaintiffs have not alleged the
existence of any official policy or custom. Plaintiffs do not