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Moran v. Polk County

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

September 3, 2019

LEAH MORAN, individually and as executrix for the ESTATE OF HEATHER GRACE BOONE LEVITSKY Plaintiff,
v.
POLK COUNTY, POLK COUNTY SHERIFF'S DEPARTMENT, TRANSYLVANIA COUNTY, TRANSYLVANIA COUNTY DETENTION CENTER, DONALD HILL, in his official and individual capacities, JOSHUA J. KUJAWA, in his individual capacity, SHELLEY STROUP, in her individual capacity, KYLE PASSMORE, in his individual capacity, JERRY MANN, in his individual capacity, MYLES B. MCCRARY, in his individual capacity, ROBBIE WORTHY, in his individual capacity, DAVID A. MAHONEY, in his official and individual capacities, NICHOLE BLACKWELL, in her individual capacity, UNKNOWN JOHN DOE EMPLOYEE OF TRANSYLVANIA COUNTY, in his individual capacity, and UNKNOWN EMPLOYEES OF TRANSYLVANIA COUNTY DETENTION CENTER, in their individual capacities, Defendants.

          MEMORANDUM AND RECOMMENDATION

          W. Carleton Metcalf, United States Magistrate Judge.

         This matter is before the Court on the following Motions:

1. Motion to Dismiss by Defendants Polk County, Transylvania County, Polk County Sheriff's Office, Transylvania County Detention Center, Donald Hill, David Mahoney, Joshua J, Kujawa, Shelley Stroup, Kyle Passmore, Jerry Mann, and Nichole Blackwell (Doc. 27) (“Sheriff and County Defendants”);
2. Motion to Dismiss by Defendant Myles B. McCrary (Doc. 29); and
3. Motion to Dismiss by Defendant Robbie Worthy (Doc. 36).

         These Motions have been referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B). The issues have been fully briefed, and the Motions are ripe for ruling.

         I. RELEVANT PROCEDURAL BACKGROUND

         Plaintiff filed her Complaint in this matter on October 29, 2018. (Doc. 1). All Defendants, except Defendant Worthy, filed motions to dismiss in response. (Docs. 16, 18).

         On January 2, 2019, Plaintiff filed an Amended Complaint (Doc. 24).

         The Sheriff and County Defendants filed their Motion to Dismiss, along with a supporting memorandum, on January 11, 2019 (Docs. 27, 28). Plaintiff subsequently filed a response in opposition (Doc. 33), and the Sheriff and County Defendants replied (Doc. 35).

         Defendant McCrary filed his Motion to Dismiss along with a supporting memorandum on January 15, 2019 (Docs. 29, 30), and Plaintiff later filed a response in opposition (Doc. 34). No reply has been filed by Defendant McCrary.

         Defendant Worthy filed his Motion to Dismiss along with a supporting memorandum on February 4, 2019 (Docs. 36, 37). Plaintiff responded in opposition (Doc. 38), and Defendant Worthy replied (Doc. 39).

         II. FACTUAL BACKGROUND

         Plaintiff's Amended Complaint alleges as follows:

         On November 27, 2016, Joshua J. Kujawa, an officer with the Polk County Sheriff's Office, arrested Heather Grace Boone Levitsky (“Levitsky”) and charged her with child abuse, driving while impaired, driving while impaired - careless and reckless, and resisting arrest. Officer Kujawa observed unstable behavior by Levitsky, including vomiting and attempted self-harm, and transported her to St. Luke's Hospital, where it was noted that she was in the midst of a situational crisis, hysterical, and suffering from depression. Doc. 24 ¶¶ 30 - 32.

         Levitsky was subsequently released from St. Luke's Hospital and transported to the Transylvania County Detention Center. Id. ¶ 34.

         On November 28, 2016, Shelley Stroup, an officer at the Transylvania County Detention Center, interviewed Levitsky in connection with her booking. Levitsky advised Officer Stroup that she was bipolar and suffered from depression. Officer Stroup noted these diagnoses, but when she conducted an initial custody assessment, she omitted information regarding Levitsky's mental health impairments. Id. ¶ 34.

         On December 2, 2016, the Polk County Department of Social Services informed Levitsky that she would be allowed to pick up her daughter from daycare.[1] However, while Levitsky was on the way, she observed the child in a vehicle driven by the child's father, Michael Nicholson. Levitsky also noticed that the child was not properly restrained. Id. ¶ 35.

         Levitsky then contacted the Columbus Police Department and requested a welfare check be performed for her child. She also followed Nicholson's car into the parking lot of the Polk County Sheriff's Office, where she was met by Officer Myles B. McCrary of the Columbus Police Department. Id. ¶ 36.

         As Officer McCrary was speaking with Levitsky, he was contacted by Polk County Magistrate Jodi E. Everts, who advised him that he should arrest Levitsky for breaking and entering a motor vehicle and advised him that, if he did not, Nicholson would be allowed to take out a warrant for Levitsky's arrest. Officer McCrary arrested Levitsky and charged her with first-degree trespass. Id. ¶ 38.

         At 6:03 PM that evening, Kyle Passmore, an officer with the Transylvania County Detention Center, interviewed Levitsky and completed a medical questionnaire, noting that Levitsky was bipolar and diagnosed with depression. Plaintiff alleges on information and belief that Officer Passmore ignored statements by Levitsky about her mental instability, did not pass along information about his assessment, and allowed Levitsky to be placed in unlawful solitary confinement. Id. ¶¶ 39 - 40.

         Shortly thereafter, at 6:24 PM, Officer Robbie Worthy of the Polk County Sheriff's Office interviewed Levitsky and completed a medical questionnaire. He noted that Levitsky was being treated by a psychiatrist. Levitsky informed him that she was taking certain medications and had been hospitalized for mental health problems. Plaintiff alleges upon information and belief that Officer Worthy ignored the results of her questionnaire, failed to provide information regarding Levitsky's conditions, and allowed her to be placed in unlawful solitary confinement. Id. ¶¶ 41 - 42.

         Plaintiff alleges that “at some point, upon information and belief, ” an unknown employee or contractor of the Transylvania County Detention Center or Transylvania County became aware of Levitsky's mental health condition and doubled her dose of the prescription drug Celexa, though that individual did not notify anyone of this action. Id. ¶¶ 43 - 44.

         On December 5, 2016, Officer Jerry Mann of the Transylvania County Detention Center conducted an initial custody assessment. He made no specific arrangements for Levitsky's care, did not note any “special managed concerns”, and personally allowed her to be placed in unlawful solitary confinement, even though, as Plaintiff alleges upon information and belief, Levitsky specifically advised him of her serious medical condition. Id. ¶¶ 45 - 46.

         The same day, the Polk County Department of Social Services advised Levitsky that her children were being removed from her custody. She also received a domestic violence protective order and a motion to adjust child support, which had been signed by Nicholson. Subsequently, Levitsky began to act erratically, and received an inmate citation at 2:30 PM that day. Id. ¶¶ 47 - 48.

         At NOON on December 6, 2016, Nichole Blackwell, a corrections officer with the Transylvania County Detention Center, issued a second citation to Levitsky, who was then placed in solitary confinement. Id. ¶ 48. Plaintiff alleges that Blackwell failed to follow jail policies requiring officers who are supervising inmates in solitary confinement to maintain audio and visual contact with the inmates and perform four cell checks per hour. Id. ¶¶ 49 - 50. While in solitary confinement, Levitsky also had little contact with other jail staff, who likewise failed to perform the required checks. In addition, Levitsky's cell was improperly equipped with metal shelves and a bedsheet. Id. ¶¶ 51 - 52.

         On December 8, 2016, Levitsky was found unresponsive in her cell, with one end of a bedsheet tied around her neck and the other tied to a metal shelf. Id. ¶ 62.

         Transylvania County Emergency Medical Services responded, and Levitsky was transported to Transylvania Regional Hospital. After further evaluation, Levitsky was transferred to Mission Hospital where she died on December 9, 2016. Id. ¶¶ 26 - 29.

         III. LEGAL STANDARD

         The central issue in a motion to dismiss made pursuant to Rule 12(b)(6) is whether the complaint states a plausible claim for relief. See Francis v. Giacomelli, 588 F.3d 186, 189 (4th Cir. 2009). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); accord Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir. 2009). That is, while “detailed factual allegations” are not required, a claim must contain sufficient factual allegations to support the required elements of a cause of action. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007); see Consumeraffairs.com, 591 F.3d at 256. The mere possibility that a defendant acted unlawfully is not sufficient for a claim to survive a motion to dismiss. Consumeraffairs.com, 591 F.3d at 256; Giacomelli, 588 F.3d at 193.

         In conducting this analysis, the court accepts the allegations in the complaint as true and construes them in the light most favorable to the plaintiff. Consumeraffairs.com, 591 F.3d at 253; Giacomelli, 588 F.3d at 192. The court, however, is not required to accept as true “legal conclusions, elements of a cause of action, and bare assertions devoid of further factual enhancement.” Consumeraffairs.com, 591 F.3d at 255; see Giacomelli, 588 F.3d at 192.

         IV. DISCUSSION

         The chart that follows represents an attempt to illustrate, in a succinct form, the various claims asserted in the Amended Complaint, taken in the light most favorable to Plaintiff.

         The pending Motions to Dismiss do not pertain to all of Plaintiff's claims. Defendants Hill, Mahoney, and Blackwell are not seeking dismissal of all claims against them. In addition, the unknown John Doe Employees of Transylvania County Detention Center and the unknown John Doe Employee of Transylvania County have not been identified or responded to the Amended Complaint.

         CHART OF CLAIMS

Cruel and Unusual Punishment/8th Amendment

Right to Familial Relationship

Monell Claim

Wrongful Death

Polk County

X

X

Transylvania County

X

X

Polk County Sheriff's Office

X

X

Transylvania County Detention Center

X

X

Donald Hill (official capacity)

X

X

Not Contested

Donald Hill

(individual

capacity)

X

X

X

David A. Mahoney (official capacity)

X

Not Contested

Not Contested

David A. Mahoney (individual capacity)

X

X

X

Joshua J. Kujawa

(individual

capacity)

X

X

X

Shelley Stroup

(individual

capacity)

X

X

X

Kyle Passmore

(individual

capacity)

X

X

X

Jerry Mann

(individual

capacity)

X

X

X

Myles B McCrary

(individual

capacity)

X

X

X

Nichole Blackwell

(individual

capacity)

Not Contested

X

Not Contested

Robbie Worthy

(individual capacity)

X

X

X

         “Not Contested” refers to a claim that appears to have been asserted by Plaintiff but is not challenged by the pending Motions.

         A. Motion to Dismiss by the Sheriff and County Defendants (Doc. 27)

         1. Polk County Sheriff's Office and Transylvania County Detention Center as Proper Parties.

         The Sheriff and County Defendants argue that dismissal of the claims against the Polk County Sheriff's Office and the Transylvania County Detention Center is required because those entities may not be sued under North Carolina law. Doc. 28 at 9 - 10.

         They are correct. Efird v. Riley, 342 F.Supp.2d 413, 420 (M.D. N.C. 2004) (“There is no North Carolina statute authorizing suit against a county's sheriff's department.”); Smith v. Cherokee Cty. Det. Ctr., No. 1:16-CV-39-FDW, 2016 WL 1420982, at *1 (W.D. N.C. Apr. 11, 2016) (Cherokee County Detention Center “is not a distinct legal entity capable of being sued. . .”).

         In addition, as Plaintiff's briefing does not address this issue, she is presumed to have abandoned these claims. See Sasser v. Safe Home Sec., Inc., No. 1:18CV746, 2019 WL 3858607, at *5 (M.D. N.C. Aug. 16, 2019) (failing to respond to an argument constitutes an abandonment of a claim)(collecting cases).

         Therefore, the undersigned will recommend dismissal of all claims against the Polk County Sheriff's Office and ...


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