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Mallatere v. Town of Boone

United States District Court, W.D. North Carolina, Statesville Division

June 3, 2019

TOWN OF BOONE, Defendants.



         THIS 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.


         Plaintiff 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).

         In 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. ¶ 17).

         In 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. ¶ 24).

         In June 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.).

         Plaintiff 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. ¶ 35).

         Defendant 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).


         When 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)).


         Plaintiff 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.

         a. ...

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