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Shreve v. Limpert

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

November 15, 2019

KIMBERLY SHREVE, a/k/a Kimberly Ann Shreve, Plaintiff,
v.
OFFICER LIMPERT, OFFICER HOWELL, OFFICER WOLFE, OFFICER LOCKHART, OFFICER DAVIDSON, OFFICER MEYERS, B. JONES, R.M. PARRISH, G. JENKINS, A.S. ODETTE, B. SCIOLI, OFFICER LAYMAN, L.M. BUTCHER, B.H. WINSTON, OFFICER FRISBEE, OFFICER MCLEOD, OFFICER POWELL, OFFICER G.S. MARLO, OFFICER ASATO, OFFICER PETERSEN, OFFICER DUFAULT, OFFICER DAVIS, OFFICER MORGAN, J.R. MARX, OFFICER BRUNO, OFFICER SINGLETARY, S.M. INGERSOLL, J.B. WIGGS, OFFICER MICHAEL, T.K. CARROLL, B.M. STEPHENSON, J.R. CRITCHER, OFFICER WINKLE, and R.D. PARROTT, Defendants.

          ORDER

          LOUISE W. FLANAGAN, UNITED STATES DISTRICT JUDGE

         This matter comes before the court upon motions to dismiss brought by 26 defendants of the 34 named defendants variously working in law enforcement in Wake County, North Carolina, identified by plaintiff as employees of the Raleigh, Fuquay-Varina, and Wendell Police Departments, a law officer employed at North Carolina State University, and employees of the Wake County Sheriff's Office. (DE 31, 37, 53, 83). Plaintiff has responded in opposition to several of the motions. (DE 44, 45, 47, 49, 48).[1] Also before the court is plaintiff's motion to amend complaint. (DE 87). For the following reasons, the court grants defendants' motions and denies plaintiff's motion.

         STATEMENT OF THE CASE

         Plaintiff, proceeding pro se, claims defendants violated her Fourth Amendment rights by falsely arresting her multiple times over a span of 19 years.[2] She commenced this action by letter complaint filed March 20, 2019, in the United States District Court for the District of South Carolina. Upon its transfer April 12, 2019, to this district, the action was categorized incorrectly as a prisoner civil rights matter, and plaintiff was noticed to present her complaint on the district's approved prisoner complaint form. Plaintiff followed this direction, and on May 1, 2019, her complaint was taken into the record, alleging violations of her civil rights under 42 U.S.C. § 1983. Plaintiff attaches documentation of these alleged arrests, including grievances she filed against the arresting officers, to her complaint. For relief, plaintiff seeks expungement of her criminal record.

         The movants present in four separate motions filed between May 23, 2019, and July 29, 2019, similar reasons why plaintiff's case should not be allowed to proceed against each of these 26 defendants. In motion filed on behalf of defendant R.M. Parrish, (“Parrish”), asserted member of the Fuquay-Varina Police Department, defendant contends plaintiff's complaint about a 1999 arrest should be dismissed in accordance with Rule 12(b)(6), Fed. R. Civ. P., because the statute of limitations has expired. (DE 31). Motion filed on behalf of G. Jenkins (“Jenkins”), asserted member of the Wendell Police Department, promotes his dismissal on grounds this court is without personal jurisdiction, insufficiency of process and service of process, and failure to state a claim. (DE 37). Defendant J. B. Wiggs (“Wiggs”), an officer at North Carolina State University, also relies upon Rules 8(a), 12(b)(2), 12(b)(5), and 12(b)(6), in his motion for dismissal, on account of defects in process, and plaintiff's failure to state a claim based on insufficiency of allegations as well as expiration of the limitations period where the arrest at issue occurred in 2014. (DE 53). Finally, the many, asserted members of the Raleigh Police Department, including defendants Officer Asato (“Asato”), Officer Bruno (“Bruno”), Officer Davidson (“Davidson”), Officer Davis (“Davis”), Officer Dufault (“Dufault”), Officer Frisbee (“Frisbee”), Officer Howell (“Howell”), Officer Layman (“Layman”), Officer Limpert (“Limpert”), Officer Lockhart (“Lockhart”), J.R. Marx (“Marx”), Officer McLeod (“McLeod”), Officer Meyers (“Meyers”), Officer Michael (“Michael”), Officer Morgan (“Morgan”), A. S. Odette (“Odette”), Officer Petersen (“Petersen”), Officer Powell (“Powell”), B. Scioli (“Scioli”), Officer Singletary (“Singletary”), Officer Winkle (“Winkle”), B.H. Winston (“Winston”), and Officer Wolfe (“Wolfe”), who come before the court in a fourth motion to dismiss, add to the chorus of defendants who contend this court is without personal jurisdiction because of plaintiff's failure to properly serve them, plaintiff's complaint is time-barred (with respect to all but one of these 23 defendants), and so devoid of sufficient factual allegations against any member of the Raleigh Police Department as to compel dismissal. (DE 83).

         Plaintiff's responses in opposition, each entitled “Request for Withdrawal of a Motion, ” uniformly recognize the significance of her criminal history. She also lobs against any attempt by defendants Parrish, Jenkins, and Wiggs to raise the shield of qualified immunity, though not mentioned in movants' papers. Plaintiff protests against dismissal also on account of these defendants' separate, alleged negligent acts, causing her emotional distress. Furthermore, in plaintiff's instant motion entitled “motion to/for, ” which the court construes as a motion to amend complaint, plaintiff raises new allegations of harassment by police officers in Raleigh, claims she was deprived of her epilepsy medicine while housed in Wake County Jail, and asserts she was taken to Federal Correctional Complex, Butner (“Butner”) “for no apparent reason.” In support, plaintiff attaches a document chronicling her various arrests, which date back to 1998.

         The remaining eight defendants named in the complaint have not entered an appearance and, accordingly, did not join in the instant motions to dismiss. These include defendants B. Jones (“Jones”), L.M. Butcher (“Butcher”), GS Marlo (“Marlo”), SM Ingersoll (“Ingersoll”), TK Carroll (“Carroll”), BM Stephenson (“Stephenson”), J.R. Critcher (“Critcher”), and R.D. Parrott (“Parrott”).

         STATEMENT OF FACTS

         The facts alleged in plaintiff's complaint are set forth in relevant part below:

[Defendant] Limpert charged me with communicating threats . . . with Malcolm Huffman, my ex-boyfriend, the victim. I have a picture included where Malcolm hit me. Why would I communicate threats to Huffman when he would jerk me by my hair and I was terrified of him? I was taken to Wake County Jail and had a bond.
[Defendant] Howell charged me with assault simple (not aggravated) to Malcolm Huffman. Every time I needed help and called the cops, about [three to five] would appear out of nowhere, standing [five] feet away whispering. Many times I was handcuffed tight and thrown in the back of a car.
[Defendant] Wolfe charged me with mental commitment. I was not taken to a mental hospital. I was taken to Wake County Jail.
[Defendant Butcher] charged me with damage to property and Malcolm Huffman was the victim. [Defendant Butcher] wrote I lived at American Towing, 281 Brewton Place, Raleigh and Huffman lived at 120 Plainview (not true). [Defendant Butcher] also charged me Vandalism/Civilian . . . I do not understand why I had such a low bond, and it was dismissed after Wake County Jail.
[Defendant] B.H. Winston charged me with Felony/Larceny of a pug dog that had been missing for over one month and I had hung flyers to find the dog when Malcolm Huffman told [defendant B.H. Winston] I had stolen the dog. [Defendant B.H. Winston] turned without question, charged me with Felony/Larceny, and had taken me to Wake County Jail.
[Defendant] Asato charged me with Larceny/All others . . . and the victim was Malcolm Huffman. What would I steal from Huffman if I was living with him? I was taken to Wake County Jail and had a low bond.
[Defendant] Critcher charged me with Second Degree Trespass. By general procedures I was suppose[d] to be given an “oral warning” then a “written warning.” How could I be charged with Second Degree Trespass? I could not find a copy of the Incident Report . . . I was taken to Wake County Jail and had a bond.
[Defendant] Stephenson charged me [with] Resisting Public Officer, Intoxicated and Disorderly. How could I be charged [with] intoxicated when no drug/alcohol test was given? . . . . I could not find a copy of the Incident Report . . . I was taken to Wake County Jail and had a bond.

(Compl. (DE 17) p. 21-23).[3]

         In addition, with respect to defendant Winkle, plaintiff filed a document containing the following statements:

I am writing today to complain of the poor service I received from [d]efendant Winkle on November 29, 2016. The incident happened at 222 W. Hargett St. The Incident Report shows on that date, [defendant] Winkle charged me with All Other Non-Offense. Why was I not charged with Trespassing at 222 W. Hargett St. like in year 2009? Who is “victim” Jean Ballard Babson and what is a “victim” of all other non-offense?

(Compl. (DE 17-1) p. 91).

         DISCUSSION

         A. Standards of Review

         1. Motion to ...


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