United States District Court, E.D. North Carolina, Western Division
W. FLANAGAN United States District Judge.
matter is before the court on defendants' motion to
dismiss (DE 35) pursuant to Federal Rule of Civil Procedure
12(b)(6). The issues raised are ripe for adjudication. For
the reasons that follow, the court grants in part and denies
in part defendants' motion.
OF THE CASE
January 24, 2018, plaintiff, a state inmate proceeding pro
se, filed this civil rights action pursuant to 42 U.S.C.
§ 1983. Plaintiff alleges defendants John Croley
(“Croley”) and David Currington
(“Currington”), officers with the Pitt County
Sheriff's Department, used excessive force during the
course of plaintiff's arrest. Plaintiff seeks
compensatory and punitive damages, and various forms of
court conducted its frivolity review of plaintiff's
complaint on August 27, 2018, and allowed the matter to
proceed. On September 21, 2018, plaintiff filed motion to
appoint counsel, which the court denied. Plaintiff filed
amended complaint on October 5, 2018, which the court
construed as a motion to amend the complaint. On December 10,
2018, the court granted the motion to amend, and found the
amended complaint survived frivolity review.
filed the instant motion to dismiss the amended complaint on
December 31, 2018, arguing the complaint fails to state a
claim for relief against any of the named defendants.
Defendants also assert the defense of qualified immunity to
the extent plaintiff seeks monetary damages. Plaintiff timely
responded in opposition to the instant motion, and defendants
did not file reply.
[On] May 23[, ] 2017[, ] a call came [through] 911 due to a
[breaking and entering] that was being committed. The 911
caller name was Shariba Spencer. The call came [through] at
7:26:51 [a.m.] I . . . was coming off the back of the home .
. . . As I [was] walking I see one sheriff car pull up to the
front of the house so I take off running towards the back of
the house. That's when another sheriff car pull up in the
back yard so I cut towards the middle of a[n] open [field]. I
hear [defendant] Currington yell out stop before I shoot. I
try to throw the gun I had out my hand. I turn to see [where]
the sheriff was at. Next thing I [know] he yell[ed] gun and
tack[led] me to the ground[, ] kicked me in the chest[, ]
cuff me [and] then [defendant] Croley run up. [Defendant]
Currington [told defendant] Croley I pointed a gun at him so
[defendant] Croley shoots me [three] times while [I was] on
the ground in [handcuffs].
(Am. Compl. (DE 23) ¶ 8).
Standard of Review
survive a motion to dismiss” under Rule 12(b)(6),
“a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is
plausible on its face.'” Ashcroft v.
Iqbal, 556 U.S. 662, 663 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
“Factual allegations must be enough to raise a right to
relief above the speculative level.” Twombly,
550 U.S. at 555. In evaluating whether a claim is stated,
“[the] court accepts all well-pled facts as true and
construes these facts in the light most favorable to the
plaintiff, ” but does not consider “legal
conclusions, elements of a cause of action, . . . bare
assertions devoid of further factual enhancement[, ] . . .
unwarranted inferences, unreasonable conclusions, or
arguments.” Nemet Chevrolet, Ltd. v.
Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir.
2009) (citations omitted).
must liberally construe pro se complaints, and “a pro
se complaint, however inartfully pleaded, must be held to
less stringent standards than formal pleadings drafted by
lawyers.” Erickson v. Pardus, 551 U.S. 89, 94
(2007). However, “[t]he ‘special judicial
solicitude' with which a district court should view such
pro se complaints does not transform the court into an
advocate. Only those questions which are squarely presented
to a ...