United States District Court, W.D. North Carolina, Charlotte Division
J. Conrad, Jr., United States District Judge.
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.
the allegations in the Complaint as true and stated in the
light most favorable to Plaintiff, the facts are as follows:
Arrest of Tyler Douglas Mosk
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.).
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).
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
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).
Agreement to Falsify Police Report
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).
Plaintiff's Criminal Conviction and Appeal
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).
filed his Complaint against Gaston County, and Officers
Ivester, Johnson, Rogers, Pilkington, and E. L. Johnson
(collectively “Defendants”) on March 31,
2017. (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”).
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).
STANDARD OF REVIEW
Review of Magistrate Judge's Memorandum and
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
Rule 12(b)(6) Standard of Review
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).
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).
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,
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.).
Plaintiff's Section 1983 Claim for False Arrest
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).
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 ...