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Anderson v. Croley

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

July 2, 2019

ANTWAN MARQUEL ANDERSON, Plaintiff,
v.
SGT. JOHN CROLEY, DAVID CURRINGTON, Deputy Sheriff, and NEIL ELKS, Defendants.[1]

          ORDER

          LOUISE W. FLANAGAN United States District Judge.

         This 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.

         STATEMENT OF THE CASE

         On 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 injunctive relief.

         The 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.

         Defendants 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.

         STATEMENT OF FACTS

[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).

         DISCUSSION

         A. Standard of Review

         “To 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).

         Courts 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 ...


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