United States District Court, E.D. North Carolina
TERRENCE W. BOYLE, JUDGE
cause comes before the Court on defendant Beaufort County
Sheriff s Office's motion to dismiss. Plaintiff has
failed to respond, and the time for doing so has expired. In
this posture, the motion is ripe for ruling and, for the
reasons that follow, the motion is granted.
filed this action against his former employer, the Beaufort
County Sheriffs Office, claiming that he was subjected to a
hostile work environment, racial harassment, and retaliation.
42 U.S.C. §§ 2000e, 1983, 1981. The Beaufort County
Sheriffs Office (BCSO) has moved to dismiss, arguing that it
lacks the capacity to be sued and is not a proper party in a
lawsuit under 42 U.S.C. § 1983. BCSO argues that
dismissal is appropriate under Rules 12(b)(1), 12(b)(2), arid
12(b)(6) of the Federal Rules of Civil Procedure.
Rule of Civil Procedure 12(b)(1) authorizes dismissal of a
claim for lack of subject matter jurisdiction. When subject
matter jurisdiction is challenged, the plaintiff has the
burden of proving jurisdiction to survive the motion.
Evans v. B.F. Perkins Co., 166 F.3d 642, 647-50 (4th
Cir. 1999). "In determining whether jurisdiction exists,
the district court is to regard the pleadings'
allegations as mere evidence on the issue, and may consider
evidence outside the pleadings without converting the
proceeding to one for summary judgment." Richmond,
Fredericksburg & Potomac R.R. Co. v. United States,
945 F.2d 765, 768 (4th Cir. 1991). To this end, "the
nonmoving party must set forth specific facts beyond the
pleadings to show that a genuine issue of material fact
exists." Id. (citing Trentacosta v.
Frontier Pacific Aircraft Indus., 813 F.2d 1553, 1558-59
(9th Cir. 1987)). The movant's motion to dismiss should
be granted if the material jurisdictional facts are not in
dispute and the movant is entitled to prevail as a matter of
12(b)(2) of the Federal Rules of Civil Procedure authorizes
dismissal for lack of personal jurisdiction. When personal
jurisdiction has been challenged on the papers alone, the
plaintiff must make a prima facie case showing that personal
jurisdiction exists, and a court construes all facts and
inferences in favor of finding jurisdiction. Combs v.
Bakker, 886 F.2d 673, 676 (4th Cir. 1989).
12(b)(6) motion tests the legal sufficiency of the complaint.
Papasan v. Allain, 478 U.S. 265, 283 (1986). When
acting on a motion to dismiss under Rule 12(b)(6), "the
court should accept as true all well-pleaded allegations and
should view the complaint in a light most favorable to the
plaintiff." Mylan Labs., Inc. v. Matkari, 7
F.3d 1130, 1134 (4th Cir. 1993). A complaint must allege
enough facts to state a claim for relief that is facially
plausible. Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 570 (2007).
determine whether a state governmental entity has the
capacity to be sued in federal court, the court applies the
law of the state in which it sits. Fed.R.Civ.P. 17(b)(3).
Under North Carolina law, unless a statute provides
otherwise, only a person in being may be sued. Coleman v.
Cooper, 89 N.C.App. 188, 192 (1988). The Court is
unaware of any North Carolina statute which permits a county
sheriffs office to be sued. On the contrary, numerous courts
have held that a North Carolina sheriffs office may not be
sued. See, e.g., Parker v. Bladen Cty., 583
F.Supp.2d 736, 740 (E.D. N.C. 2008); Hemingway v.
Columbus Cty. Sheriff's Office, No. 5:16-CT-3277-FL,
2018 WL 1403611, at *2 (E.D. N.C. Mar. 20, 2018). This is so
even in the context of an action alleging employment
discrimination. Efird v. Riley, 342 F.Supp.2d 413,
420 (M.D. N.C. 2004).
for the foregoing reasons and without opposition from
plaintiff, defendant Beaufort County Sheriffs ...