Allen v. City of Graham
| Decision Date | 02 June 2021 |
| Docket Number | 1:20-CV-997,1:20-CV-998 |
| Parties | SYLVESTER ALLEN, JR., et al., Plaintiffs, v. CITY OF GRAHAM, et al., Defendants. GREGORY DRUMWRIGHT, et al., Plaintiffs, v. TERRY JOHNSON, individually and in his official capacity as Alamance County Sheriff, et al., Defendants. |
| Court | U.S. District Court — Middle District of North Carolina |
These consolidated cases arise out of a political demonstration held on October 31, 2020, in Graham, North Carolina. The plaintiffs allege that the defendants—the City and various City and County law enforcement officers—used pepper spray and overly violent crowd-control tactics to disrupt a peaceful protest and prevent the plaintiffs and others from voting, violating numerous federal and state rights in the process.
After the defendants moved to dismiss, the Allen parties resolved their disputes, subject to certain conditions, and the Court has stayed that case. See Docs. 73, 76. This order resolves the motions to dismiss in the companion case, Drumwright v. Cole, 1:20-cv-998 (M.D.N.C.).1
The Court concludes that the Drumwright complaint states claims on which relief may be granted, except for the federal constitutional claims against the named City defendants in their official capacities. Those claims will be dismissed as redundant. Otherwise, the motions to dismiss will be denied.
The Drumwright plaintiffs include several individuals and two unincorporated entities. The individuals are Reverend Gregory Drumwright, Edith Ann Jones, Faith Cook, Janet Nesbitt, Quenclyn Ellison, Melanie Mitchell, Ernestine Lewis Ward, Edith Ward, Avery Harvey, and Ashley Reed Batten. Ms. Ellison and Ms. Mitchell bring claims on behalf of themselves and their minor children. The entities are Justice 4 The Next Generation and Alamance Alliance 4 Justice.
The amended complaint identifies seven causes of action. As named in the heading for each cause of action, they are:
In addition to the City of Graham, the plaintiffs bring claims against several named law enforcement officers as well as unidentified law enforcement "Doe" defendants. The defendants can usefully be divided into two groups: the City defendants and the County defendants.
The City defendants are the City of Graham; Mary Kristine Cole, individually and in her official capacity as Chief of the Graham Police Department; Joaquin Velez, individually and in his official capacity as Lieutenant of the Patrol Division of the GPD; Jonathan Franks, individually and in his official capacity as consultant to the Alamance County Sheriff and the Graham Police Chief; and John and Jane Does, presently unknown officers of the GPD.
The County defendants are Terry Johnson, individually and in his official capacity as Alamance County Sheriff; Cliff Parker, individually and in his official capacity as Alamance County Chief Deputy Sheriff; and John and Jane Does, presently unknown officers of the Alamance County Sheriff's Office.
Before settling with the Allen plaintiffs, the City defendants filed a single motion to dismiss directed at both the Allen and the Drumright complaints. Doc. 45. The County defendants filed separate dispositive motions directed towards each complaint. See Docs. 50 (directed at Allen), 52 (directed at Drumwright). The motions as to the complaint in Allen will be held in abeyance pending finalization of the settlement.
The pending motions to dismiss the Drumright complaint cite both Federal Rules of Civil Procedure 12(b) and 12(c). Doc. 45 at 1; Doc. 52 at 1. The briefing addresses only Rule 12(b)(6). The Court will assess the standing issues under the standards applicable to a Rule 12(b)(1) motion and the remaining issues under the standards applicable to a Rule 12(b)(6) motion.9
On the final day of early voting and voter registration for the 2020 general election in North Carolina, the individual defendants and other officers pepper-sprayed theplaintiffs while they were participating in the "I am Change March to the Polls," in the city of Graham. Doc. 25 at ¶ 1. The March was organized as a peaceful "march to the polls" that was "focused on racial justice issues," like raising awareness of police brutality, and it was intended to encourage members of the community who had not already voted to do so. Id. at ¶¶ 9-12, 68.
The March began at a local church and was scheduled to stop at Court Square, near the Confederate monument in front of the Alamance County courthouse where the organizers planned to speak from a small stage with sound amplifiers. Id. at ¶¶ 72, 88. Organizers then planned for the March to continue towards the Elm Street polling place, an early-voting site where attendees could register and vote in the 2020 general election. Id. at ¶¶ 9, 72, 80. The organizers had a permit for the March and rally, id. at ¶¶ 71-72, 75, 91, and a county attorney authorized the plaintiffs to erect a small stage on courthouse grounds. Id. at ¶ 82.
The March began and proceeded peacefully. Id. at ¶¶ 1, 88. The marchers complied with COVID-19 protocols. Id. at ¶¶ 86, 95. When the marchers arrived at Court Square, they were met by armed sheriff's deputies. Id. at ¶ 96. Counter-protestors were also present but left upon instruction from officers soon after the marchers arrived. Id. at ¶ 145.
Marchers knelt in silence for 8 minutes and 46 seconds in remembrance of George Floyd, who was killed by police a few months earlier. Id. at ¶ 95. Immediately after the remembrance, and before many could even get back up to their feet, officers began indiscriminately discharging pepper spray into the crowd, which included children, theelderly, and those with disabilities. Id. at ¶¶ 1, 99-109. The chemical spray irritated and burned the eyes and throats of some plaintiffs. See, e.g., id. at ¶¶ 101-08. Some March participants who were in a nearby park attempted to cross over to the courthouse grounds but were stopped and arrested by GPD officers. Id. at ¶ 110.
Despite the pepper spray, the rally continued, and Rev. Drumwright was able to set up the stage and a sound system. Id. at ¶¶ 99, 111. After several speakers had spoken, deputies attempted to disconnect the sound system without warning or explanation. Id. at ¶¶ 114-15. Shortly after that, Graham police officers and Alamance County deputy sheriffs worked in coordination to pepper spray the marchers a second time. Id. at ¶ 116. Several of the named plaintiffs and members of Alamance Alliance and Next Generation were hit by the second spray. Id. at ¶¶ 116-22.
GPD and ACSO officers ordered the marchers to leave the area. Id. at ¶ 123. Without providing time to disperse or instruction on where or how to leave the area, the officers began spraying a third round of pepper spray into the crowd. Id. at ¶ 124. Several of the named plaintiffs and members of Alamance Alliance and Next Generation were also hit by this third round of pepper spray. Id. at ¶ 126.
Some of the marchers continued to the Elm Street polling place as planned but took a longer route to avoid officers. Id. at ¶¶ 132-33. Many marchers who had intended to vote that day were unable to because of injuries from the defendants' pepper spray. Id. at ¶¶ 25, 144, 147. Members of Next Generation and Alamance Alliance, who were lawfully registered voters in Alamance County, were intimidated from voting by thedefendants' actions. Id. at ¶¶ 152-53. Multiple individual plaintiffs were fearful of attempting to vote on Election Day, three days after the March. Id. at ¶¶ 150-51.
Other factual allegations will be recited as necessary to address specific issues.
The City defendants contend that because the plaintiffs bring their claims against the City, the same claims against the individual City defendants in their official capacity are redundant and should be dismissed. Doc. 46 at 17-18; see Kentucky v. Graham, 473 U.S. 159, 166 (1985) (); Love-Lane v. Martin, 355 F.3d 766, 783 (4th Cir. 2004) (). The plaintiffs acknowledge the City defendants' argument but do not address it. Doc. 56 at 13.
The cases cited by the City defendants support dismissal of the § 1983 claims against the individual City defendants in their official capacities. Those claims are redundant to the § 1983 claims against the City and will be dismissed.
The City does not explicitly contend that any state claims or federal statutory claims are redundant, nor does it cite any cases addressing anything other than § 1983 claims. See infra note 12. To the extent the motion is directed to any state or federal statutory claims, it will be denied without prejudice.
Both the County and City defendants challenge the standing of entity-plaintiffs Alamance Alliance and Next Generation. Doc. 46 at 19; Doc. 53 at 5. The defendantsassert that these unincorporated associations cannot bring suit in North Carolina because they have not filed an assumed business name certification as required by N.C. Gen. Stat. § 1-69.1(a)(3). Doc. 46 at 20; Doc. 53 at 5-6. But "standing to sue in any Article III court is a federal question which does not depend on the party's standing in state court." Md. Shall Issue, Inc. v. Hogan, 971 F.3d 199, 219 (4th Cir. 2020) ...
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