United States District Court, E.D. North Carolina
HERBERT C. ELEY, Plaintiff,
STEVE HARDERS, et al., Defendants.
C. DEVER III CHIEF UNITED STATES DISTRICT JUDGE
November 28, 2017, Herbert Claude Eley ("plaintiff'
or "Eley"), proceeding pro se, filed a proposed
complaint alleging violations of his civil rights [D.E. 1-1],
along with an application to proceed in forma pauperis [D.E.
1] and proposed summonses for four defendants [D.E. 1-3]. On
December 20, 2017, Judge Numbers recommended denying the
application [D .E. 5]. On December 28, 2017, Eley paid the
filing fee and the clerk filed his complaint [D.E. 6] and
issued the four proposed summonses [D.E. 7]. On January 2,
2018, Eley filed an amended complaint naming two additional
defendants [D.E. 9]. On February 2, 2018, in response to a
notice from the clerk [D.E. 11], Eley presented incomplete
proposed summonses [D.E. 16]. On February 20, 2018, in
response to a notice from the clerk [D.E. 18], Eley presented
a summons for one new defendant, and a previously-named
defendant [D.E. 20], and the clerk issued the summonses as
presented by Eley [D.E. 21].
defendants have filed motions to dismiss the complaint
pursuant to Federal Rule of Civil Procedure 12(b) and (c)
[D.E. 14, 28]. Pursuant to Roseboro v. Garrison,
528 F.2d 309, 310 (4th Cir. 1975) (per curiam), the court
notified Eley about the motions, the consequences of failing
to respond, and the response deadlines [D.E. 17, 31]. Eley
responded in opposition to the motions [D.E. 19, 34]. As
explained below, the court grants the motions to dismiss and
dismisses the federal claims with prejudice and dismisses the
state-law claims without prejudice.
a citizen and resident of Ahoskie, North Carolina. See Compl.
[D.E. 6] 1; Am. Compl. [D.E. 9] 3. Eley's complaint
arises out of a trespass warning that the Chowan University
("Chowan") campus police chief, defendant Derek
Burke, issued to him on August 28, 2015. See Compl.
at 1-2; Am. Compl. at 2; White/Chowan Mot. Dismiss, Ex. 1
[D.E. 29-1] 2. "On the date of the action [defendant
Murfreesboro Police Department] Captain Sumner displayed
overly agressive actions and pattern of behavior that
increased assertively, overstepping the boundaries of
behavior of career lawmen." Pl's Resp. Opp'n
Sumner Mot. Dismiss [D.E. 19] 1.
trespass warning prohibits Eley from "enter[ing] or
remain[ing] on the property located at" Chowan,
threatens Eley with criminal prosecution if he enters the
property, and directs Eley to contact Burke with "[a]ny
further needs to communicate with any Chowan
employees[.]" White/Chowan Mot. Dismiss, Ex. 1 [D.E.
29-1] 2. Chowan University is in Murfreesboro, North
Carolina. See Compl. at 2; Am. Compl. at 1. Eley describes
the trespass warning as a "defamatory and malicious
attack on [his] personal / professional character" and
alleges that defendants issued the trespass warning to him
"for no probable cause or misconduct." Compl. at 2;
Am. Compl. at 2. Eley also alleges that all defendants
engaged in a "conspiracy... to give no redress to
[Eley]... to amicably resolve it" and "completely
ignored" a letter he sent requesting a meeting. Compl.
at 2; see Am. Compl. at 2.
contends that defendants' actions violated his
"civil and human rights." Am. Compl. at 2; see
Compl. at 2. In addition to Sumner, Chowan and Burke, Eley
names as defendants Chowan president Christopher White and
three Chowan employees. See Compl. at 1-2; Am. Compl. at 1.
Eley seeks injunctive relief "[t]o have the trespassing
stipulation removed and my good name restored" and
monetary damages of $15, 000, 000. Compl. at 3; Am. Compl. at
motion to dismiss under Rule 12(b)(6) for "failure to
state a claim upon which relief can be granted" tests
whether the complaint is legally and factually sufficient.
See Fed.R.Civ.P. 12(b)(6); Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009); Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007); Coleman v. Md. Ct. of
Appeals, 626 F.3d 187, 190 (4th Cir. 2010),
affd. 566 U.S. 30 (2012); 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. A
court also "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 678-79. Moreover, a court may
take judicial notice of public records without converting a
motion to dismiss into a motion for summary judgment.
See, e.g., Fed.R.Evid. 201; Tellabs,
Inc. v. Makor Issues & Rights. Ltd., 551 U.S. 308,
322 (2007); Philips v. Pitt Cty. Mem'l Hosp.,
572 F.3d 176, 180 (4th Cir. 2009).
apparently seeks relief under 42 U.S.C. § 1983. "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 a person acting under color of
state law." West v. Atkins, 487 U.S. 42, 48
(1988); see Philips, 572 F.3d at 180. Additionally,
a section 1983 plaintiff must 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). Negligence claims are generally not
actionable under section 1983. See, e.g..
Daniels v. Williams, 474 U.S. 327, 330-31 (1986);
Pink v. Lester, 52 F.3d 73, 77-78 (4th Cir. 1995).
the no trespass warning, Eley has not plausibly alleged the
violation of any right secured by the Constitution. See,
e.g.. Afrasiabi v. Harvard Univ., 39 Fed.Appx. 620, 623
(1st Cir. 2002) (per curiam) (unpublished); Thompson v.
Ashe, 250 F.3d 399, 406-08 (6th Cir. 2001); Uzoukwu
v. Prince George's Cmty. Coll. Bd. of Trs., No.
12-3228, 2013 WL 4442289, at *7-10(D. Md. Aug. 15, 2013)
(unpublished); Holbach v. Jenkins, No. 4:09-CV-026,
2009 WL 2382756, at *6 (D.N.D. July 30, 2009) (unpublished),
affd, 366 Fed.Appx. 703 (8th Cir. 2010) (per curiam)
(unpublished). Eley's allegations concerning Captain
Sumner's "[unbecoming" behavior do not alter
the court's conclusion. See, e.g., Fuson v.
City of Indianapolis, No. 1:14-CV-00817-RLY-DML, 2016 WL
1270203, at *13 (S.D. Ind. Mar. 31, 2016) (unpublished);
Bradford v. Currid, No. CIV-15-606-R, 2015 WL
6511681, at *5 (W.D. Okla. Sept. 29, 2015)
(unpublished"), report and recommendation
adopted. 2015 WL 6511692 (W.D. Okla. Oct. 28, 2015)
(unpublished). Furthermore, Eley has failed plausibly to
allege that Chowan and its employees acted under the color of
state law. See Klunder v. Brown Univ., 778 F.3d 24,
31-32 (1st Cir. 2015); Bvrne v. Whole Foods Mkt.
Inc., No. 17-1033, 2017 WL 1134120, at *2 (E.D. Pa. Mar.
27, 2017) (unpublished). Finally, to the extent Eley has
named the Murfreesboro Police Department as a defendant,
police departments in North Carolina do not have the legal
capacity to be sued. See, e.g., Owens v.
Baltimore City State's Attorneys Office, 767 F.3d
379, 393 (4th Cir. 2014); Cooper v. Brunswick Cty.
Sheriffs Dep't No. 7:10-CV-14-D, 2011 WL 738610, at
*4 n.2 (E.D. N.C. Feb. 7, 2011) (unpublished) (collecting
cases), report and recommendation adopted by, 2011
WL 736670 (E.D. N.C. Feb. 23, 2011) (unpublished); Hill
v. Robeson Cty., 733 F.Supp.2d 676, 690 (E.D. N.C.
2010). Thus, the court dismisses the Murrreesboro Police
Department as a defendant.
extent Eley alleges a conspiracy claim under 42 U.S.C. §
1985, to state a claim, Eley must plausibly allege "that
the [defendants] acted jointly in concert and that some overt
act was done in furtherance of the conspiracy which resulted
in [the plaintiffs] deprivation of a constitutional
right." Hinkle v. City of Clarksburg, 81 F.3d
416, 421 (4th Cir. 1996). To show joint, concerted action,
plaintiffs must, at mmimum, provide "specific
circumstantial evidence that each member of the alleged
conspiracy shared the same conspiratorial objective."
Id. Conclusory allegations of a conspiracy do not
satisfy this "meeting of the minds" element and
therefore fail to state a claim. See. e.g.,
Simmons v. Poe, 47 F.3d 1370, 1377 (4th Cir. 1995);
Gooden v. Howard Cty., 954 F.2d 960, 970 (4th Cir.
1992) (en banc). Eley fails plausibly to allege a
"meeting of the minds" between any of the named
defendants or any shared objective of violating his
constitutional rights. See Uzoukwu, 2013 WL 4442289,
at *6; Holbach, 2009 WL 2382756, at *7; cf
Iqbal, 556 U.S. at 677-84; Johnson v. City of
Fayetteville, 91F.Supp.3d 775, 796-98 (E.D. N.C. 2015).
Thus, Eley fails to state a claim under section 1985.
in light of the dismissal of Eley's federal claims, the
court declines to exercise supplemental jurisdiction over any
state-law claims, and dismisses those claims without
prejudice. 28 U.S.C. § 1367(cY3): see
Carnegie-Mellon Univ. v. Cohill,484 U.S. 343, 350
n.7 (1988); United Mine Workers of Am. v. Gibbs, 383
U.S. 715, 726 (1966); ESAB Grp., Inc. v. ...