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Biggs v. North Carolina Department of Public Safety

United States District Court, E.D. North Carolina, Western Division

June 8, 2018

RAY C. BIGGS, Plaintiff,
NORTH CAROLINA DEPARTMENT OF PUBLIC SAFETY and ERIK A. HOOKS, in His official capacity as Secretary for the North Carolina Department of Public Safety, Defendants.



         This cause comes before the Court on defendants' motion to dismiss. [DE 20]. Plaintiff has responded, defendant has replied, and the matter is ripe for ruling. A hearing was held before the undersigned on January 4, 2018 at Raleigh, North Carolina. For the following reasons, defendants' motion to dismiss is denied.


         Plaintiff, Ray C. Biggs, has been employed by the Department of Public Safety ("DPS") and its predecessor, the Department of Corrections, since 1991. He began as a correctional officer before being promoted to correctional sergeant and then correctional lieutenant. In 2012, he was promoted to correctional captain at Bertie Correctional Institution. As captain, plaintiff served as the officer-in-charge at Bertie Correctional and was responsible for overseeing its normal operation. Bertie Correctional was understaffed.

         He was demoted later that year, disciplined after an altercation between inmates and staff. When resolving the altercation, Biggs sought a written statement from certain inmates who claimed correctional officers had assaulted them. After being searched, the inmates were handcuffed and escorted across a hallway in order to write the statements. So that they could write, they were handcuffed in front, instead of the back. Three months later, DPS demoted Biggs from correctional captain to correctional officer, finding that by handcuffing the inmates as he did, he violated DPS policy.

         Plaintiff then filed an internal grievance challenging the demotion, which was upheld on February 14, 2013. Plaintiff learned no other staff were disciplined, including white prison staff who had also been found to violate the policy. On March 15, 2013, plaintiff filed a petition with the Office of Administrative Hearings ("OAH"), arguing DPS lacked just cause to demote him. After a hearing, the OAH affirmed the demotion on July 11, 2014, finding there was just cause. Plaintiff then filed the instant suit against DPS and its Secretary, Erik Hooks, alleging violations of 42 U.S.C. § 1981. Plaintiff alleges he was disciplined because he is black. Defendants have now moved to dismiss plaintiffs suit.


         Defendants move to dismiss on the following bases: statute of limitations, collateral estoppel, Eleventh Amendment and common law sovereign immunity, and failure to state a claim[1].

         I. Statute of Limitations

         Defendants first move to dismiss plaintiffs claims on the grounds that they were brought after the statute of limitations period had expired. There are two separate statute of limitations questions. The first is what period applies; the second is when that period began to run.

         Congress established a four-year statute of limitations when a cause of action is pursuant to a civil rights statute enacted or amended after December 1, 1990. 28 U.S.C. § 1658. Causes of action that existed prior to that deadline retained the catchall statute of limitations from state tort law, which in North Carolina is three years. Goodman v. Lukens Steel Co., 482 U.S. 656, 660-62 (1987); N.C. Gen. Stat. §l-52(s). The Civil Rights Act of 1991 modified § 1981, but not § 1983. This means § 1981 actions have a four year statute of limitations, but § 1983 actions only have three years.

         Plaintiff has brought his suit against public defendants-the North Carolina DPS and its secretary, Erik Hooks, in his official capacity. § 1981 was amended in 1991 to outlaw racial harassment related to the conditions of employment, overruling Patterson v. McLean Credit Union. 42 U.S.C. § 1981(b); 491 U.S. 164, 171 (1989). When suing state actors for violating § 1981, the remedy is through § 1983. Dennis v. Cnty. Of Fairfax, 55 F.3d 151, 156 (4th Cir. 1995); Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 733 (1989). This is not permissive; it is mandatory.

         However, that does not change the character of the actual claim at issue. § 1983 may be the mechanism, but § 1981 creates the underlying substantive right. Without § 1981, a plaintiff situated as here would have no case. Therefore, the claim here arises under § 1981, which was modified after the 1990 deadline. The four-year statute of limitations applies.

         The next question is when that period began to toll. Defendants, in their motion, argue that it began at the time of plaintiff s actual demotion, which occurred on November 26, 2012. A cause of action accrues, when a plaintiff "possesses sufficient facts about the harm done to him that reasonable inquiry will reveal his cause ...

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