United States District Court, W.D. North Carolina, Statesville Division
C. MULLEN, UNITED STATES DISTRICT JUDGE
MATTER COMES before this Court on Defendant Town of
Boone's (“Defendant”) Motion to Dismiss
Plaintiff's Amended Complaint. (Doc. No. 13). Plaintiff
Barry Mallatere (“Plaintiff”) responded (Doc. No.
15) to which Defendant replied. (Doc. No. 16). As such, this
matter is ripe for disposition.
at all times relevant to this case managed and operated
several hotels in Boone, North Carolina. (Compl. ¶ 5).
In 2011, Plaintiff served as President of Appalachian
Hospitality Management, Inc. (“Appalachian
Hospitality”). (Id. ¶ 6). In 2011, the
pool heater at one of the hotels operated by Appalachian
Hospitality malfunctioned. (Id. ¶ 8). Without
knowledge of Plaintiff, employees removed a pool heater from
another of the Appalachian Hospitality properties and
replaced the malfunctioned heater. (Id. ¶ 9,
10). The employees responsible for the change did not get the
necessary permits for the installation of the new pool
heater. (Id. ¶ 11).
2012, Appalachian Hospitality decided to convert its heaters
and furnaces from propane to natural gas. (Id.
¶ 12). Appalachian Hospitality contracted with a third
party to do the conversion. (Id. ¶ 13). The
third party inspected the employee installed pool heater and
determined the third party could safely convert the propane
heater to natural gas. (Id. ¶ 15). The third
party applied for and received the necessary permits to
complete the conversion from the Defendant's Planning and
Inspections Department. (Id. ¶ 16). After the
conversion, Defendant's inspector confirmed the
installation satisfied the local building code. (Id.
April of 2013, Daryl and Shirley Jenkins stayed in the hotel
room directly above the converted pool heater. (Id.
¶ 18). The Jenkins passed away in the room that night.
(Id. ¶ 19). Defendant's fire department
inspected the room after the Jenkins' deaths and
determined that nothing was wrong with the room itself.
(Id. ¶ 21). Plaintiff instructed Appalachian
Hospitality to not rent the room pending further tests.
(Id. ¶ 23). An outside contractor tested the
room and found no gas leaks present. (Id. ¶
of 2013, another couple stayed in the same room in which the
Jenkins had died. (Id. ¶ 26). That couple did
not report having any negative experiences. (Id.).
The following week, Jeffrey and Jeanie Williams spent the
night in the same room. (Id. ¶ 27). That night,
exhaust from the pool heater entered the room and caused the
Williams to suffer from carbon monoxide poisoning.
(Id. ¶ 28). Jeffrey Williams died, and Jeanie
Williams suffered serious injuries. (Id.).
did not have any knowledge that the room was susceptible to
carbon monoxide poisoning prior to either the death of
Jeffrey Williams or Daryl and Shirley Jenkins. (Id.
¶ 22, 24, 25, 30). However, Defendant launched an
intensive investigation into the three deaths. (Id.
¶ 31, 32). The first investigation concluded that no
crime had occurred. (Id. ¶ 33). Defendant,
however, opened a second investigation into the incidents.
(Id. ¶ 34). Plaintiff alleges in his Complaint
that Defendant did not “have any probable cause of [a]
crime being committed by Plaintiff.” (Id.
insisted the evidence from the second investigation be
presented to the Grand Jury in hopes that an indictment would
be issued against Plaintiff. (Id. ¶ 36). The
Grand Jury indicted Plaintiff on three counts of involuntary
manslaughter and one count of assault inflicting serious
bodily injury. (Id.). Plaintiff alleged that in
support of the indictment, Defendant required two of
Defendant's employees to appear and testify in front of
the Grand Jury. (Id. ¶ 37). Plaintiff further
alleged that these two witnesses provided false testimony
that served as the basis for the indictment. (Id.).
Ultimately, the District Attorney dropped all charges against
Plaintiff. (Id. ¶ 39).
STANDARD OF REVIEW
faced with a motion to dismiss under Rule 12(b)(6) of the
Federal Rules of Civil Procedure, the Court must
“accept as true all well-pleaded allegations and . . .
view the complaint in a light most favorable to the
plaintiff.” Mylan Labs, Inc. v. Matkari, 7
F.3d 1130, 1134 (4th Cir. 1993). The Court “assume[s]
the veracity” of these factual allegations, and
“determine[s] whether they plausibly give rise to an
entitlement to relief.” Ashcroft v. Iqbal, 556
U.S. 662, 679 (2009). However, the court “need not
accept as true unwarranted inferences, unreasonable
conclusions, or arguments.” E. Shore Mkts., Inc. v.
J.D. Assocs. LLP, 213 F.3d 175, 180 (4th Cir. 2000).
Thus, to survive a motion to dismiss, the plaintiff must
include within his complaint “sufficient factual
matter, accepted as true, to ‘state a claim to relief
that is plausible on its face.'” Iqbal,
556 U.S. at 678 (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)).
alleged three different causes of action against Defendant:
(1) Violation of §1983; (2) Malicious Prosecution; and
(3) Violation of Plaintiff's Fourth Amendment Rights pled
in the alternative to the first two causes of action.
Defendant moved to dismiss each of the claims. The Court will
discuss each below.