United States District Court, E.D. North Carolina, Western Division
TERRENCE W. BOYLE, UNITED STATES DISTRICT JUDGE.
matter comes before the court on defendants' motion for
judgment on the pleadings (DE 16), and motion to dismiss (DE
17) pursuant to Federal Rules of Civil Procedure 12(b)(6) and
(c). Also before the court is plaintiffs motion for partial
voluntary dismissal (DE 27). The issues raised have been
fully briefed and are ripe for adjudication. For the
following reasons, the court grants plaintiffs partial motion
for voluntary dismissal and denies defendants' motions.
OF THE CASE
September 29, 2016, plaintiff, a pretrial detainee,
filed this civil rights action pro se pursuant to 42
U.S.C. § 1983. In his complaint, plaintiff raised claims
related to an alleged use of excessive force in violation of
the Fourteenth Amendment to the United States Constitution
against defendants the New Hanover County Sheriffs
Department, New Hanover County Sheriff Ed McMahon
("McMahon"), Officer Stafford Brister
("Blister"), Wilmington Police Chief Ralph
Evangelous ("Evangelous"), and the Wilmington
subsequently filed both a motion to dismiss and for judgment
on the pleadings pursuant to Federal Rules of Civil Procedure
12(b)(6) and (c). In their motions, defendants argue that
plaintiff executed a prior release agreement which
relinquished all rights to pursue any further legal remedy
with respect to the instant action, that the Wilmington
Police Department is not an entity capable of being sued, and
that plaintiff has not alleged any misconduct on behalf of
defendants McMahon or Evangelous. Plaintiff responded to
defendants' motions. As part of his response to
defendants' motions, plaintiff moves the court to dismiss
this action against all parties except defendant McMahon, the
New Hanover County Sheriff, and their agencies.
facts as viewed in the light most favorable to plaintiff are
as follows. On November 1, 2013, at approximately 1:30 a.m.,
plaintiff was detained while traveling in a car by both the
Wilmington and the New Hanover County Police Departments.
(Compl. ¶ V). At some point, plaintiff raised his hands
in the air as a sign of surrender. (Id.) However,
defendant Brister, a canine officer with the Wilmington
Police Department, "lif[t]ed his canine and angrily
forced the canine through [plaintiffs] driver side
window." (Id.) Plaintiff states that defendant
McMahon and five or six officers from the New Hanover County
Sheriffs Department stood around and watched the attack
without providing plaintiff assistance. ((DE 27), p. 2). As a
result of the incident, plaintiff suffered a separated left
shoulder. (Compl. ¶ V). Plaintiff also states that he
suffered "extensive damage" to the left side of his
face which required surgery. (Id.)
Motion for Voluntary Dismissal
seeks to voluntarily dismiss, pursuant to Federal Rule of
Civil Procedure 41 (a), each of the named defendants except
defendants McMahon and the New Hanover County Sheriffs
Department. An action may be dismissed voluntarily by a
plaintiff without order of the court by filing a notice of
dismissal at any time before service by the adverse party of
an answer or a motion for summary judgment. See
Fed.R.Civ.P. 41(a)(1). Otherwise an action shall not be
dismissed on the plaintiffs' request except upon an order
of the court. See Fed.R.Civ.P. 41(a)(2). Defendants
have answered plaintiff s complaint. Accordingly, they may
only be voluntarily dismissed from this action pursuant to
Rule 41(a)(2), which permits voluntary dismissal "on
terms that the court considers proper." A plaintiff s
motion under Rule 41 (a)(2) should not be denied absent
substantial prejudice to the respondent. S.A. Andes v.
Versant Corp., 788 F.2d 1033, 1036 (4th Cir. 1986). To
establish plain legal prejudice, a defendant must show some
harm other than the mere prospect of a second lawsuit.
See Ellett Bros., Inc. v. United States Fidelity &
Guar. Co., 275 F.3d 384, 387-389 (4th Cir. 2001).
no prejudice to defendants and for good cause shown, the
court GRANTS plaintiffs motion to voluntarily dismiss.
Accordingly, defendants Brister, Evangelous, and the
Wilmington Police Department are DISMISSED from this action
without prejudice. While the court's docket does not
reflect that the New Hanover County Sheriffs Department is a
party to this action, it appears from the complaint that
plaintiff intended to include the Sheriff s Department as a
defendant in this action. (See (DE 1), p. 1). Thus,
the clerk of court is DIRECTED to add the New Hanover County
Sheriffs Department as a party to this action.
Standards of Review
before the court are a motion to dismiss pursuant to Rule
12(b)(6) and a motion for judgment on the pleadings pursuant
to Rule 12(c). Beginning with the standard for a motion to
dismiss, a motion to dismiss under Rule 12(b)(6) determines
only whether a claim is stated; "it does not resolve
contests surrounding the facts, the merits of a claim, or the
applicability of defenses." Republican Party v.
Martin,980 F.2d 943, 952 (4th Cir. 1992). A claim is
stated if the complaint contains "sufficient factual
matter, accepted as true, to 'state a claim to relief
that is plausible on its face.'" Ashcroft v.
Iqbal,556 U.S. 662, 677 (2009) (quoting Bell
Atlantic Corp. v. Twombly,550 U.S. 544, 570 (2007)). In
evaluating whether a claim is stated, "[the] court
accepts all well-pled facts as true and construes these facts
in the light most favorable to the plaintiff, " but does
not consider "legal conclusions, elements of a cause of
action, . . . bare assertions devoid of further factual
enhancement[, ] . . . unwarranted inferences, unreasonable
conclusions, or arguments." Nemet Chevrolet. Ltd. v.
Consumeraffairs.com. Inc.,591 F.3d 250, 255 (4th Cir.
2009) (citations omitted). In other words, ...