United States District Court, E.D. North Carolina, Western Division
W. FLANAGAN, UNITED STATES DISTRICT JUDGE
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). Also before the court is plaintiff's
motion to amend complaint. (DE 87). For the following
reasons, the court grants defendants' motions and denies
OF THE CASE
proceeding pro se, claims defendants violated her Fourth
Amendment rights by falsely arresting her multiple times over
a span of 19 years. 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.
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).
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.
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
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
[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).
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
(Compl. (DE 17-1) p. 91).
Standards of Review
Motion to ...