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Mosk v. Gaston County

United States District Court, W.D. North Carolina, Charlotte Division

March 30, 2018



          Robert J. Conrad, Jr., United States District Judge.

         THIS MATTER comes before the Court on Defendants' Motion to Dismiss, (Doc. No. 10); their Memorandum in Support, (Doc. No. 11); Plaintiff's Response, (Doc. No. 12); Defendants' Reply, (Doc. No. 13); and the Magistrate Judge's Memorandum and Recommendation (“M&R”), (Doc. No. 18), recommending the Court grant in part and deny in part Defendant's Motion to Dismiss. Plaintiff has since filed timely objections to the M&R, (Doc. No. 19), and Defendants have filed a Response, (Doc. No. 20). This matter is now ripe for the Court's consideration. As such, for the reasons set forth below, Defendant's Motion is GRANTED in part and DENIED in part.

         I. BACKGROUND

         A. Factual Background

         Accepting the allegations in the Complaint as true and stated in the light most favorable to Plaintiff, the facts are as follows:

         1. Arrest of Tyler Douglas Mosk

         On April 2, 2016, Tyler Douglas Mosk (“Plaintiff”) attended a house party in Gastonia, North Carolina. (Doc. No. 1 ¶¶ 14-15). In the early morning hours of April 3, 2016, Gaston County Police Officers Gregory P. Ivester (“Ivester”), Matthew Johnson (“Johnson”), David Rogers (“Rogers”), and Timothy Pilkington (“Pilkington”), arrived at the house to investigate underage drinking. (Id. ¶¶ 15-16). Sometime after the officers began asking partygoers if there was underage drinking taking place at the house, Officer Ivester approached Plaintiff, who was seated in his chair. (Id. ¶ 17). Plaintiff asked Officer Ivester if he and the other partygoers were in trouble. (Id.). Officer Ivester reacted by shouting and physically and verbally threatening Plaintiff. (Id. ¶ 18). In response to all the shouting, Officers Johnson, Rogers, and Pilkington, came over to Plaintiff, grabbed him out of his chair, threw him across the room, pounced on him, and held him face-down. (Id. ¶ 19). Officer Timothy Pilkington then called for a Taser to be used. (Id.).

         Plaintiff was 20 years old at the time, 5 feet and 3 inches tall, and weighed 135 pounds. (Id. ¶ 14). Officer Ivester was 9 inches taller than Plaintiff and weighed at least twice as much as Plaintiff. (Id. ¶ 16). Prior to and during the altercation, Plaintiff did not attempt to flee, was not physically aggressive, and was not resisting the officers in any way. (Id. ¶ 19). All four officers handcuffed Plaintiff with his hands behind his back, placed him under arrest, and Officer Ivester proceeded to remove Plaintiff from the house. (Id. ¶ 20).

         As they walked towards a police car, Officer Ivester verbally abused and threatened Plaintiff. (Id. ¶ 21). Plaintiff complied with the officers and did not struggle, attempt to flee, or impede Officer Ivester. (Id. ¶ 22). Upon reaching the police car, Officer Ivester violently threw Plaintiff, who fell face-first onto the pavement. (Id. ¶ 23). Plaintiff lost consciousness as a result. (Id.).

         When Plaintiff regained consciousness, he was in excruciating pain and unable to move his head and neck without extreme discomfort. (Id. ¶ 24). Plaintiff implored Officer Ivester to call for an ambulance. (Id.). Officer Ivester refused Plaintiff's requests, alternating between ignoring his pleas for help and telling him to shut up. (Id. ¶ 25). After an extended period of time in the back of the police car, an ambulance was called and Plaintiff was taken to CaroMount Regional Medical Center's emergency room. (Id. ¶ 26). Plaintiff was diagnosed with injuries to his cervical spine, including several torn ligaments, a torn C3-C4 disc, moderate cervical spinal canal stenosis at the C3-C4 and C4-C5 discs, a bulging C5-C6 disc, and various soft tissue injuries. (Id. ¶ 27). Plaintiff underwent emergency surgery to prevent paralysis and death. (Id.). Plaintiff spent six days in the hospital recovering from surgery and ultimately suffered permanent damage to his body. (Id. ¶ 28).

         2. Agreement to Falsify Police Report

         On April 3, 2016, Officer Ivester and his supervisor, Officer Eric Lee Johnson (“E. L. Johnson”), created and subscribed a false police report concerning Plaintiff's arrest. (Id. ¶ 33). Officers Ivester and E. L. Johnson agreed to falsely report, and did falsely report, that Plaintiff was in possession of marijuana on April 3, 2016, in violation of state law. (Id. ¶ 34). Similarly, the officers agreed to falsely report, and did falsely report, that Plaintiff resisted, delayed, or obstructed the officers, in violation of state law. (Id.). At some point after, all five officers agreed to initiate criminal proceedings against Plaintiff in state district court. (Id. ¶ 35). After criminal proceedings were initiated, all five officers falsely reported to the Gaston County District Attorney that Plaintiff possessed marijuana and resisted the officers on April 3, 2016. (Id. ¶ 36).

         3. Plaintiff's Criminal Conviction and Appeal

         On December 9, 2016, a state district court judge convicted Plaintiff on charges of possession of marijuana and resisting, delaying, or obstructing the officers. (Doc. No. 10-3 at 1). On December 16, 2016, Plaintiff appealed his conviction to state superior court and invoked his right to a de novo trial with a jury. (Id.). Plaintiff's criminal case is still pending in state superior court. (Doc. No. 1 ¶ 37).

         B. Procedural Background

         Plaintiff filed his Complaint against Gaston County, and Officers Ivester, Johnson, Rogers, Pilkington, and E. L. Johnson (collectively “Defendants”) on March 31, 2017.[1] (Doc. No. 1). The Complaint asserts causes of action under 42 U.S.C. § 1983 for: (1) false arrest; (2) excessive force; (3) deprivation of due process; and (4) municipal liability. (Id.). The Complaint also asserts related state law claims for: (1) assault; (2) battery; (3) false imprisonment; and (4) intentional infliction of emotional distress (“IIED”). (Id.).

         On August 1, 2017, Defendants filed a Motion to Dismiss for failure to state a claim as to each cause of action alleged in Plaintiff's Complaint. (Doc. No. 10). On November 7, 2017, the Magistrate Judge filed an “M&R” recommending the Court grant Defendant's Motion to Dismiss with respect to the false arrest, deprivation of due process, false imprisonment, IIED, and municipal liability causes of action, but deny Defendant's Motion to Dismiss as to the excessive force, assault, and battery causes of action. (Doc. No. 18).


         A. Review of Magistrate Judge's Memorandum and Recommendation

         A district court may assign dispositive pretrial matters, including motions to dismiss, to a magistrate judge for “proposed findings of fact and recommendations.” 28 U.S.C. § 636(b)(1)(A) and (B). The Federal Magistrates Act provides that “a district court shall make a de novo determination of those portions of the report or specific proposed findings or recommendations to which objection is made.” Id. § 636(b)(1)(C); Fed.R.Civ.P. 72(b)(3); Camby v. Davis, 718 F.2d 198, 200 (4th Cir. 1983). De novo review is not required by the statute when an objecting party makes only general or conclusory objections that do not direct the court to a specific error in the magistrate judge's recommendations. Orpiano v. Johnson, 687 F.2d 44 (4th Cir. 1982). Furthermore, the statute does not on its face require any review at all of any issues that are not the subject of an objection. Thomas v. Arn, 474 U.S. 140, 149; Camby, 718 F.2d at 200. Nonetheless, a district court judge is responsible for the final determination and outcome of the case, and accordingly this Court has conducted a careful review of the Magistrate Judge's M&R.

         B. Rule 12(b)(6) Standard of Review

         The standard of review for a motion to dismiss is well-known and well-stated in the M&R. A motion to dismiss under Rule 12(b)(6) tests the sufficiency of the plaintiff's complaint. See Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999). Except in certain specified cases, a plaintiff's complaint need only satisfy the “simplified pleading standard” of Rule 8(a), Swierkiewicz v. Sorema N.A., 534 U.S. 506, 513 (2002), which requires a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). To satisfy the Rule 8 requirement, the showing must consist of at least “enough facts to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 697 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Robinson v. American Honda Motor Co., Inc., 551 F.3d 218, 222 (4th Cir. 2009). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, ” however, “do not suffice.” Id. Although the Court must consider all well-pled allegations in the complaint as true, Erickson v. Pardus, 551 U.S. 89, 94 (2007), and must construe all factual allegations in the light most favorable to the plaintiff, Harrison v. Westinghouse Savannah River Co., 176 F.3d 776, 783 (4th Cir. 1999), the Court is “not bound to accept as true a legal conclusion couched as a factual allegation.” Papasan v. Allain, 478 U.S. 265, 286 (1986). Although the court cannot weigh the facts or assess the evidence at this stage, a complaint entirely devoid of any facts supporting a given claim cannot proceed. Potomac Conference Corp. of Seventh-Day Adventists v. Takoma Acad. Alumni Ass'n, Inc., 2 F.Supp.3d 758, 767-68 (D. Md. 2014).


         Plaintiff interposed three broad objections to the Magistrate Judge's M&R. (Doc. No. 19). First, Plaintiff contends that the Magistrate Judge erred in concluding that Plaintiff's conviction in state district court for possession of marijuana and resisting, delaying, or obstructing the officers established that Plaintiff's arrest was supported by probable cause. (Id. ¶ 11). Plaintiff argues that his conviction had been appealed and is currently pending in state superior court, such that it is void for purposes of determining that there was probable cause for the arrest. (Id.). Second, Plaintiff contends that the Magistrate Judge erred in concluding that Plaintiff failed to include specific factual allegations to support the deprivation of due process, IIED, and municipal liability causes of action. (Id. ¶¶ 17, 21). Plaintiff alternatively argues that he should be permitted to amend his complaint to include the necessary factual allegations. (Id. ¶¶ 20, 23). Third, Plaintiff contends that the Magistrate Judge erred in concluding that the officers' conduct did not rise to the level of extremeness and outrageousness necessary to support an IIED claim. (Id. ¶¶ 18, 19).

         Defendants filed a Response to Plaintiff's Objections on December 4, 2017. (Doc. No. 20). Defendants counter that the causes of action were properly dismissed and that the remaining claims should be dismissed, as well, or in the alternative, stayed pending the outcome of Plaintiff's criminal case appeal. (Id. at 2-3). Defendants contend that the causes of action for false arrest, malicious prosecution, [2]and false imprisonment constitute an impermissive collateral attack on the state district court conviction and that Plaintiff's appeal does not negate the presumption that arises from the convictions that the arrest was supported by probable cause. (Id. at 3). Defendants also agree with the Magistrate Judge that Plaintiff failed to include specific factual allegations to support various causes of action, and that Defendants' conduct did not rise to the level of extremeness and outrageousness necessary to support an IIED claim. (Id.).

         A. Plaintiff's Section 1983 Claim for False Arrest

         Plaintiff's first cause of action is a constitutional claim of false arrest brought under § 1983 against Officers Ivester, Johnson, Rogers, and Pilkington, in their individual capacities. Plaintiff alleges that the four officers “placed Plaintiff under arrest without any probable cause.” (Doc. No. 1 ¶ 40).

         The Magistrate Judge concluded that Plaintiff's false arrest claim fails because Plaintiff was convicted of the crimes for which he was arrested, thus establishing the existence of probable cause for his arrest. Plaintiff objects on the grounds that his conviction was procured by fraud or ...

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