United States District Court, M.D. North Carolina
MEMORANDUM OPINION AND ORDER
D. SCHROEDER, District Judge.
Darryl Howard brings this action against the City of Durham
and various officers of the Durham Police Department
(“DPD”) and Durham Fire Department (collectively,
the “Individual Defendants”) for claims arising
out of his arrest, conviction, and imprisonment for over
twenty-three years until his exoneration and release in 2016.
Howard alleges violations of the Fourth and Fourteenth
Amendments pursuant to 42 U.S.C. § 1983; obstruction of
justice; negligence; intentional infliction of emotional
distress; malicious prosecution; and a violation of the North
Carolina Constitution. (Doc. 1 ¶¶ 120-75.) Before
the court is the motion to dismiss certain claims against the
Individual Defendants. (Doc. 13.) The motion has been fully
briefed and is ready for consideration. (Docs. 14, 19, 21.)
For the reasons set forth below, the motion will be granted
in part and denied in part.
in the light most favorable to Howard as the non-moving
party, the operative facts are as follows:
November 27, 1991, Doris Washington and her 13 year-old
daughter, Nishonda, were brutally raped, sexually assaulted,
strangled, beaten, and murdered, and their apartment was then
set on fire. (Doc. 1 ¶ 24.) Although there was evidence
implicating others, Howard was arrested and charged with
these murders on November 12, 1992. (Id. ¶ 65.)
From the beginning of the investigation, there was clear
evidence that both Doris and Nishonda were the victims of
sexual assault, and both bodies were tested with a rape kit.
(Id. ¶¶ 28, 69.) The results initially
revealed that sperm was found on Nishonda, but not on Doris.
(Id. ¶ 69.) The DNA found on Nishonda was not
tested before Howard was charged with both murders.
February of 1993, Howard's trial counsel requested DNA
testing of the rape kits. (Id. ¶ 70.) The
testing was conducted and conclusively excluded Howard as the
source of the sperm found on Nishonda. (Id. ¶
71.) Regardless, on March 31, 1995, Howard was convicted of
two counts of second-degree murder and one count of
first-degree arson, and he was sentenced to eighty years in
prison. (Id. ¶ 84.)
1997, Howard filed a pro se motion for appropriate relief in
North Carolina Superior Court. That motion was denied, as was
a petition for discretionary review to the North Carolina
Supreme Court. (Id. ¶ 87.)
2009, after North Carolina created a statutory right to
post-conviction DNA testing, N.C. Gen. Stat. § 15A-270,
Howard filed an unopposed motion for DNA testing on Doris and
Nishonda's rape kits, which was granted in 2010. (Doc. 1
¶ 88.) The testing of the rape kits confirmed that
Howard was properly ruled out as the source of the sperm
found on Nishonda's body but also found previously
unidentified sperm on Doris's body. (Id.
¶¶ 89-91.) Testing of this sperm also conclusively
ruled out Howard as the source but did identify Jermeck
Jones, a convicted felon, as a possible match. (Id.
August 25, 2011, the North Carolina State Bureau of
Investigation crime lab informed the DPD that Jones was a
possible match for the newly discovered DNA. (Id.
¶ 94.) On September 15, 2011, apparently upon
application by Howard, a North Carolina Superior Court judge
entered an order directing the DPD to “immediately
share with counsel for Mr. Howard any information it
possesses about the man whose DNA was detected in Doris
W.'s sexual assault kit.” (Id. ¶ 95.)
On December 14, 2011, Michele Soucie, as directed by her
sergeant, Scott Pennica, obtained a warrant to collect a DNA
sample from Jones. (Id. ¶ 96.)
taking Jones into custody but before collecting the DNA
sample from him, Soucie and Pennica met with him in an
interview room to question him about the Washington murders.
(Id. ¶ 97.) During and directly after this
interview, Jones made a number of incriminating,
contradictory, and inconsistent statements (some of which
were made to Soucie and Pennica and some of which were
recorded by a device that was hidden in the interview room).
(Id. ¶¶ 97-99.) These include: a statement
that Doris had been his girlfriend but that he did not kill
her; once he was informed that his DNA would be taken, his
contradictory statement that he did not know Doris (despite
the fact that his DNA was subsequently found on her); a
statement that he had consensual sex with Nishonda (despite
the fact that she was 13 years old and his DNA was not found
on her); the fact that when he was in the interview room
alone, he made a series of calls from his cell phone in which
he implicated himself in the crimes and indicated that he had
just lied to Soucie and Pennica, including statements that he
did not want to “rat on anybody, ” that “I
ain't said nothing, ” that “ain't nothing
they going to learn without my attorney”, and that he
had visited the Washington apartment. (Id. ¶
testing of the DNA sample from Jones found him to be a
conclusive match for the newly-discovered DNA. (Id.
alleges, and the court accepts as true for purposes of the
present motion, that in a written report on this encounter
Soucie misrepresented the interview she had with Jones and
intentionally failed to report Jones's contradictory
statements or disclose the recording. (Id. ¶
98.) Howard also alleges that although Soucie and Pennica
knew that Jones was not being truthful when they questioned
him, they did not conduct any follow-up investigation on
Jones's involvement in the crimes. (Id. ¶
March 19, 2014, Howard's defense counsel filed a motion
for appropriate relief in North Carolina Superior Court
requesting a new trial based on newly discovered evidence,
including, among other things, the new DNA evidence.
(Id. ¶ 105.) The Superior Court granted the
motion for appropriate relief and ordered a new trial, and
the state appealed. (Id. ¶ 106.) Howard's
counsel then filed a separate motion for a new trial, arguing
that North Carolina General Statute § 15A-270 entitled
Howard to a new trial. (Doc. 1 ¶ 108.) In August of
2016, the Superior Court held an evidentiary hearing on the
motion. (Id. ¶ 109.) At this hearing,
Howard's counsel presented the recording of Jones, which
had only been disclosed to counsel the month before.
(Id. ¶ 110.) Jones was called as a witness at
this hearing but refused to testify and invoked his Fifth
Amendment right against self-incrimination. (Id.) At
the end of the hearing, the Superior Court ruled from the
bench in favor of Howard. (Id. ¶ 111.) In a
subsequent written order, the Superior Court found that the
DNA test results showed that Howard was innocent of the
Washington murders. (Id.) On August 21, 2016, Howard
was released from prison.
March 24, 2017, Howard filed his complaint in this court.
(Doc. 1.) The Individual Defendants and the City of Durham
each filed an answer on August 29, 2017. (Docs. 12, 14.) On
the same day, the Individual Defendants, but not the City of
Durham, moved to dismiss many of Howard's claims. (Doc.
13.) Apparently persuaded by some of the Individual
Defendants' arguments, Howard stipulated to the dismissal
of several of his claims and responded to the arguments as to
remainder. (Doc. 20.) As a result of this stipulation, only
the following claims are challenged on substantive grounds:
third cause of action (§ 1983 claim under the Fourteenth
Amendment for falsifying and withholding evidence) against
Soucie and Pennica; fourth cause of action (common law
obstruction of justice) against Soucie and Pennica; and fifth
cause of action (negligence) against Soucie and Pennica. In
addition, the Individual Defendants contend that the fourth,
fifth, sixth (intentional infliction of emotional distress
against Darrel Dowdy and Milton Smith), and seventh
(common law malicious prosecution against Dowdy and Smith)
causes of action against the Individual Defendants in their
official capacity should be dismissed as duplicative of the
second cause of action against the City of Durham. (Docs. 13,
20.) Each claim is addressed below.
motion to dismiss pursuant to Federal Rule of Civil Procedure
12(b)(6) challenges the legal sufficiency of a complaint.
Francis v. Giacomelli, 588 F.3d 186, 192 (4th Cir.
2009). A complaint that does not contain “sufficient
factual matter, accepted as true, ‘to state a claim to
relief that is plausible on its face'” must be
dismissed. Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007)). “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.” Id. “The
plausibility standard requires a plaintiff to demonstrate
more than ‘a sheer possibility that a defendant has
acted unlawfully.'” Giacommelli, 588 F.3d
at 193 (quoting Iqbal, 556 U.S. at 678.) In
assessing the legal sufficiency of a complaint, the factual
allegations must be construed in the light most favorable to
the plaintiff. Smith v. Smith, 589 F.3d 736, 738
(4th Cir. 2009). However, “‘[t]he presence  of
a few conclusory legal terms does not ...