United States District Court, E.D. North Carolina, Southern Division
JOHN D. MCALLISTER, Plaintiff,
TIM MALFITANO, et al., Defendants.
C. DEVER III Chief United States District Judge
April 3, 2017, plaintiff John D. McAllister
("McAllister" or "plaintiff'), appearing
pro se, filed his complaint alleging violations of 42 U.S.C.
§ 1983 [D.E. 1]. On November 27, 2017, McAllister
amended his complaint and added Interlocal Risk Financing
Fund ("Interlocal") as a defendant [D.E. 38]. On
December 11, 2017, Interlocal moved to dismiss the complaint
under Federal Rule of Civil Procedure 12(b)(1) for lack of
subject-matter jurisdiction and Rule 12(b)(6) for failure to
state a claim [D.E. 43]. On December 28, 2017, McAllister
responded in opposition [D.E. 48]. On February, 20, 2018,
McAllister moved to file a second amended complaint and add
additional defendants [D.E. 51]. As discussed below, the
court grants Interlocal's motion to dismiss and grants in
part McAllister's motion to amend his complaint.
motion to dismiss under Federal Rule of Civil Procedure
12(b)(1) tests subject-matter jurisdiction, which is the
court's "statutory or constitutional power to
adjudicate the case." Steel Co. v. Citizens for a
Better Env't 523 U.S. 83, 89 (1998) (emphasis
omitted); see Hollowav v. Pagan River Dockside Seafood.
Inc.. 669 F.3d 448, 453 (4th Cir. 2012). A federal court
"must determine that it has subject-matter jurisdiction
over the case before it can pass on the merits of that
case." Constantine v. Rectors & Visitors of
George Mason Univ.. 411 F.3d 474, 479-80 (4th Cir.
2005). Because McAllister asserts that this court has
subject-matter jurisdiction, he must prove that
subject-matter jurisdiction exists. See, e.g..
Steel Co.. 523 U.S. at 103-04; Evans v. B.F.
Perkins Co.. 166 F.3d 642, 647 (4th Cir. 1999). In
considering a motion to dismiss for lack of subject-matter
jurisdiction, the court may consider evidence outside the
pleadings without converting the motion into one for summary
judgment. See, e.g.. Evans. 166
F.3d at 647.
motion to dismiss under Rule 12(b)(6) of the Federal Rules of
Civil Procedure for "failure to state a claim upon which
relief can be granted" tests whether the complaint is
legally and factually sufficient. See Ashcroft v.
Iqbal. 556 U.S. 662, 677-78 (2009); Bell Atl. Corp.
v. Twomblv. 550 U.S. 544, 562-63, 570 (2007);
Giarratano v. Johnson. 521 F.3d 298, 302 (4th Cir.
2008); accord Erickson v. Pardus. 551 U.S. 89, 93-94
(2007) (per curiam). In considering a motion to dismiss, a
court need not accept a complaint's legal conclusions
drawn from the facts. See, e.g., Iqbal. 556
U.S. at 678. Similarly, a court "need not accept as true
unwarranted inferences, unreasonable conclusions, or
arguments." Giarratano. 521 F.3d at 302
(quotation omitted); see Iqbal. 556 U.S. at 677-79.
standard used to evaluate the sufficiency of a pleading is
flexible, "and a pro se complaint, however inartfully
pleaded, must be held to less stringent standards than formal
pleadings drafted by lawyers." Erickson. 551
U.S. at 94 (emphasis and quotation omitted).
Erickson, however, does not "undermine [the]
requirement that a pleading contain 'more than labels and
conclusions.'" Giarratano. 521 F.3d at 304
n.5 (quoting Twomblv. 550 U.S. at 555); see
Iqbal. 556 U.S. at 677-83; Coleman. 626
F.3d at 190; Nemet Chevrolet Ltd. v. Consumeraffairs.com.
Inc.. 591 F.3d 250, 255-56 (4th Cir. 2009); Francis
v. Giacomelli. 588 F.3d 186, 193 (4th Cir. 2009).
Although a court must liberally construe a pro se plaintiff s
allegations, it "cannot ignore a clear failure to allege
facts" that set forth a cognizable claim. Johnson v.
BAC Home Loans Servicing. LP. 867 F.Supp.2d 766, 776
(E.D. N.C. 2011); see Giarratano. 521 F.3d at 304
amended complaint alleges that various defendants violated
his rights under the Fourth Amendment and that the
Jacksonville Police Department "willfully,
intentionally, and maliciously falsely arrest[ed] and
wrongfully incarcarate[d]" him for 15 days. Am. Compl.
¶¶ 18-21. McAllister seeks "a
declaration" that defendants violated his constitutional
rights, a preliminary and permanent injunction "ordering
Police Chief Michael Yaniero, Detective Tim Malfitano,
Detective Steven A Selogy [sic], and IRFFNC to issue a public
apology for the wrongfully, willfully, intentionally, and
malicious arrest[, ]" and damages. Id.
¶¶ 23-31. McAllister's only specific and
non-conclusory allegation concerning Interlocal, however, is
that Interlocal "provides liability insurance to members
of the City of Jackonsville and [its] Police
Department." Am. Compl. ¶ 17.
extent McAllister argues that Interlocal violated his
constitutional rights, that claim fails. "To state a
claim under [section] 1983, a plaintiff must allege the
violation of a right secured by the Constitution and laws of
the United States, and must show that the alleged deprivation
was committed by aperson acting under color of state
law." West v. Atkins. 487 U.S. 42, 48 (1988);
see Philips v. Pitt Ctv. Mem'l Hosp.. 572 F.3d
176, 180 (4th Cir. 2009). Additionally, a section 1983
plaintiff must plausibly allege the personal involvement of a
defendant. See, e.g.. Iqbal. 556 U.S. at 676;
Monell v. Dep't of Soc. Servs.. 436 U.S. 658,
691-92 (1978); Wright v. Collins. 766 F.2d 841, 850
(4th Cir. 1985). First, McAllister has not plausibly alleged
that Interlocal is a state actor. Thus, any section 1983
claim against Interlocal is "dismissed for lack of
jurisdiction." Wiggins v. HKew Garden Court.
497 Fed.Appx. 262, 263 (4th Cir. 2012) (per curiam)
(unpublished). Second, and in any event, McAllister fails to
allege Interlocal's personal involvement. Thus, the court
dismisses McAllister's section 1983 claim against
extent McAllister seeks money damages, an injunction, or any
other form of relief from Interlocal, McAllister similarly
fails to state a claim. Ordinarily, a plaintiff "must
sue either the tortfeasor in tort, or perhaps his own
insurance company in contract[, ]" but the plaintiff
"cannot sue the tortfeasor's insurance company
directly." Donald v. Liberty Mut. Ins. Co.. 18
F.3d 474, 480 (7th Cir. 1994). A plaintiff may, however, sue
a third-party's insurance company if he can show he is a
direct beneficiary under the insurance contract.
See, e.g.. Woolard v. Davenport.
166 N.C. App. 129, 136, 601 S.E.2d 319, 324 (2004).
A plaintiff proceeding under a direct beneficiary theory must
allege: (1) the existence of an insurance contract between
two other persons; (2) that the contract was enforceable; and
(3) that the contract was "entered into for his direct,
and not incidental, benefit." Raritan River Steel
Co. v. Cherry. Bekaert & Holland. 79 N.C.App. 81,
85-86, 339 S.E.2d 62, 65 (1986). rev'd
on other grounds. 322 N.C. 200, 367 S.E.2d 609
(1988): see Hoots v. Prvor. 106 N.C.App.
397, 408, 417 S.E.2d 269, 276 (1992); Metric
Constructors. Inc. v. Indus. Risk Insurers. 102 N.C.App.
59, 63, 401 S.E.2d 126, 129 (1991). McAllister did not
plausibly allege that Interlocal and the Jacksonville Police
Department entered into the liability insurance contract for
his direct benefit. Thus, McAllister cannot sue Interlocal
extent McAllister seeks a declaration that Interlocal will be
liable to him if the Jacksonville Police Department is found
liable to him, the court lacks subject-matter jurisdiction to
adjudicate such claim. In order for a federal court to
adjudicate a claim for a declaratory judgment, both Article
HJ of the Constitution and the Federal Declaratory Judgment
Act require an "actual controversy." Steffel v.
Thompson. 415 U.S. 452, 458 (1974); 28 U.S.C. §
2201. A federal court has jurisdiction over a declaratory
judgment action when three elements are met: "(1) the
complaint alleges an 'actual controversy' between the
parties of sufficient immediacy and reality to warrant
issuance of a declaratory judgment; (2) the court possesses
an independent basis for jurisdiction over the parties (e.g.,
federal question or diversity jurisdiction); and (3) the
court does not abuse its discretion in its exercise of
jurisdiction." Volvo Constr. Equip. N. Am. Inc. v.
CLM Equip. Co.. 3 86 F.3d 581, 592 (4th Cir. 2004)
(quotation omitted). An actual controversy exists when the
dispute is "definite and concrete, touching the legal
relations of parties having adverse legal interests."
Aetna Life Ins. Co. v. Haworth. 300 U.S. 227, 240-41
Courts have found the case or controversy requirement lacking
when the plaintiff has no interest in the case, when the
defendant has no interest in the case, when no conflict
exists in the case, when there is no adverse claimant, when
there is no conflict in the case because of a defect in the
parties and when there is no legal relationship between the
Provident Life & Accident Ttis. Co. v.
Transamerica-Qccidental Life Ins. Co.. 850 F.2d 1489,
1491 (11th Cir. 1988). Here, McAllister has not plausibly
alleged any legal relationship between Interlocal and
McAllister. Thus, "there is no basis on which to rule
either party liable to the other." Id.
Accordingly, the court grants Interlocal's motion to
McAllister's motion to amend, under Federal Rule of Civil
Procedure 15(a)(1)(B), a plaintiff may amend his complaint
once as a matter of course within 21 days after the earlier
of (1) service of a responsive pleading or (2) service of a
motion under Rule 12(b), (e), or (f). After expiration of
this time period, a party may amend only with either the
opposing party's written consent or the court's
leave. See Fed.R.Civ.P. 15(a)(2). Under Rule 15, a
"motion to amend should be denied only where it would be
prejudicial, there has been bad faith, or the ...