Fordham v. Doe
| Decision Date | 20 October 2011 |
| Docket Number | No. 4:11-CV-32-D,4:11-CV-32-D |
| Parties | ANGELO FORDHAM, JR., Plaintiff, v. GREENVILLE POLICE OFFICER JOHN DOE, and THE CITY OF GREENVILLE, Defendants. |
| Court | U.S. District Court — Eastern District of North Carolina |
On February 25, 2011, Angelo Fordham, Jr. ("Fordham" or "plaintiff") filed this action pursuant to 42 U.S.C. sections 1983 and 1988, the Fourth and Fourteenth Amendments, and North Carolina law. Compl. ¶ 1 [D.E. 1]. Fordham names the city of Greenville, North Carolina (hereinafter "Greenville" or "city") and Greenville police officer John Doe (hereinafter "Doe" or defendant")1 as defendants. Id. ¶¶ 1-2. On March 23, 2011, defendants filed a motion to dismiss pursuant to Rules 12(b)(2) & (4)~(6) of the Federal Rules of Civil Procedure. Defs.' Mot. Dism. [D.E. 6]. On April 22, 2011, Fordham responded in opposition to defendants' motion. P1.'s Mem. Opp'n Mot. Dism. [D.E. 12]. On April 27, 2011, defendants replied. Defs.' Reply [D.E. 13]. As explained below, Fordham has failed to state a claim upon which relief can be granted; therefore, defendants' motion to dismiss pursuant to Rule 12(b)(6) is granted.
On February 26, 2009, Fordham and his friend, Monte Corey, were in Fordham's residence in Greenville, North Carolina when members of the Greenville Police Department and Pitt County Sheriffs Office Joint Drug Task Force (hereinafter "Task Force") knocked on his door. Compl. ¶¶ 6-9. Doe, an officer with the Greenville Police Department, was a Task Force member. Id.¶¶ 4-7. The Task Force was there to execute a search warrant. Id.
When Fordham heard the knock, Fordham told Corey to open the door. Id. ¶ 9. Corey complied, but upon seeing that there were numerous law enforcement officers seeking to enter, Corey immediately shut the door. Id. Corey then leaned on the door to prevent the officers' entrance. Id The Task Force officers used force to open the door. Id.
When the Task Force officers entered the home, Fordham was "approximately 10 to 15 feet from the door." Id. ¶ 10. He states that the officers entered his home shouting conflicting instructions. Some officers ordered him to "put his hands up" and others directed him to "get on the ground." Id. Fordham claims that he raised his hands and continued to stand near the door as the Task Force officers entered. Id. Fordham then alleges that Doe used his taser on Fordham. Id. The taser burned a hole in Fordham's shirt, and caused him to lose control of his bodily functions, soil himself, and fall to the floor. Id. ¶ 11. Fordham alleges that Doe later told him that he had used the taser because Fordham had not put his hands up. Id. ¶ 12. Fordham states that during the altercation, he was not intoxicated, disorderly, or "a threat to himself or others." Id. ¶ 18.
Fordham alleges that Doe used excessive force in violation of his Fourth Amendment right to be free from unreasonable seizure and committed an assault and battery. Id. ¶¶ 21-26; see also P1.'s Mem. Opp'n Mot. Dism. 4-8. As for the city, Fordham seeks to recover from the city under section 1983 and contends that the city, "by and through its police department, developed andmaintained policies or customs exhibiting deliberate indifference to the constitutional rights of persons in Greenville . . . ." Compl. ¶¶ 27-33. Fordham refers to the city's policies of failing to properly investigate citizen complaints of excessive force, failing to take corrective actions after internal investigations of excessive force allegations, and failing to adequately train officers on properly using tasers. Id. ¶¶ 15-17, 29-30, 33; see also P1.'s Mem. Opp'n Mot. Dism. 5-6.
The city and Doe seek dismissal. See Defs.' Mem. Supp. Mot. Dism [D.E. 7]. First, they contend that the complaint against the city must be dismissed pursuant to Rules 12(b)(4) & (5) because Fordham failed to properly serve the city. Id. 2-4. Next, defendants argue that the court does not have personal jurisdiction over defendant Doe because Doe was not served, and therefore seek dismissal pursuant to Rules 12(b)(2) & (5). Id. 4-5. Finally, defendants seek to dismiss all claims against the city and Doe under Rule 12(b)(6) and argue that Fordham has not alleged facts to support the city's municipal liability under section 1983 or Doe's personal liability under federal or state law. Id. 5-12.
Rule 4 of the Federal Rules of Civil Procedure describe the requirement of effective service and process. See Fed. R. Civ. P. 4(a)-(c). Within 120 days of filing a complaint, a plaintiff must serve all defendants with process, unless service is waived or plaintiff demonstrates good cause for the delay. Fed. R. Civ. P. 4(d) & (m). Process consists of a summons and a copy of the complaint. See Fed. R. Civ. P. 4(c).
Rule 4(j)(2) sets forth the specific requirements for service of all "state-created governmental organization[s]," including cities. See Fed. R. Civ. P. 4(j)(2). It provides that a state governmental entity may be served by either "delivering a copy of the summons and of the complaint to its chiefexecutive officer; or . . . serving a copy of each in the manner prescribed by that state's law for serving a summons or like process on such a defendant." Id Therefore, the court looks to North Carolina law to determine if Fordham properly served the city. See, e.g., Patterson v. Whitlock, 392 F. App'x 185, 188 n.7 (4th Cir. 2010) (per curiam) (unpublished).
Under North Carolina law, a plaintiff may serve a "city, town, or village . . . by mailing a copy of the summons and of the complaint, registered or certified mail, return receipt requested, addressed to its mayor, city manager or clerk . . . ." N.C. Gen. Stat. Ann. § 1 A-4(j)(5)(a). North Carolina strictly enforces this rule "to insure that a defendant receives actual notice of a claim against him," and does not provide for any exceptions to personal service, other than the specific procedure set forth in the statute. See, e.g., Crabtree v. City of Durham, 136 N.C. App. 816, 817, 526 S.E.2d 503, 505 (2000); Johnson v. City of Raleigh, 98 N.C. App. 147, 149, 389 S.E.2d 849, 851 (1990).
Here, Fordham mailed a copy of the complaint and summons to the office of Greenville's city manager, return receipt requested. See P1.'s Mem. Opp'n Mot. Dism. 2-3. The process arrived at the city manager's post office box on March 4, 2011, seven days after Fordham filed the complaint. See Aff. Serv. Proc. on City [D.E. 10] 2. On April 21, 2011, Fordham filed his affidavit of service pursuant to Rule 4(1) of the Federal Rules of Civil Procedure, and it shows that the process was addressed to "City Manager Wayne Bowers," but that Gordon Clark actually accepted delivery. Id 1-2. Clark is a city buildings and grounds employee. See Defs.' Mem. Supp. Mot. Dism., Art. 3 ("Clark Aff.")¶3.
The city seeks dismissal on two grounds. First, it seeks to dismiss the case pursuant to Rule 12(b)(4), alleging that "no summons has been issued." See Defs.' Mem. Supp. Mot. Dism. 2. However, the city presents no evidence to support this claim, and Fordham has demonstrated that a summons was issued against the city on February 28, 2011. See Summons [D.E. 5]; Aff. Serv.Proc. on City. Therefore, the court denies the Rule 12(b)(4) motion.
As for the city's Rule 12(b)(5) motion, the city alleges that Fordham's method of service failed to comply with Rule 4(j)(2) of the Federal Rules of Civil Procedure and applicable North Carolina law. See Defs.' Mem. Supp. Mot. Dism. 3-4. In support, defendants contend that Fordham's service was deficient because the city manager did not physically receive it. See id. 3-4.
When a defendant seeks dismissal under Rule 12(b)(5), plaintiff bears the burden of establishing that process complies with Rule 4. See, e.g., Tate v. Mail Contractors of Am., Inc., No. 3:10-CV-528, 2011 WL 1380016, at *2 (W.D.N.C. Apr. 12, 2011) (unpublished); Harry v. Commercial Net Lease LP Ltd., No. 5:09-CV-495-D, 2011 WL 807522, at *2 (E.D.N.C. Mar. 1, 2011) (unpublished). Fordham has met that burden. See Aff. Serv. Proc. on City. As for the city's argument that the city manager had to physically receive the mail, the argument lacks merit under North Carolina law. See, e.g., Steffey v. Mazza Constr. Grp., Inc., 113 N.C. App. 538, 539-41, 439 S.E.2d 241, 242-43 (1994); In re Annexation Ordinance. 62 N.C. App. 588, 592, 303 S.E.2d 380, 382 (1983). Thus, the court denies the city's motion to dismiss under Rule 12(b)(5).
As for Doe, he seeks to dismiss the claims pursuant to Rule 12(b)(2) for want of personal jurisdiction and pursuant to Rule 12(b)(5) for deficient service. See Defs.' Mem. Supp. Mot. Dism. 4. When a court's personal jurisdiction over a defendant is challenged under Rule 12(b)(2), "the plaintiff bears the burden [of] making a prima facie showing of a sufficient jurisdictional basis to survive the jurisdictional challenge." Consulting Eng'rs Corp. v. Geometric Ltd.. 561 F.3d 273, 276 (4th Cir. 2009). Failure to properly serve a defendant prevents a court from obtaining personal jurisdiction over the defendant and entitles the defendant to dismissal under Rule 12(b)(2). See, e.g., Koehler v. Dodwell, 152 F.3d 304, 306 (4th Cir. 1998); see also Thomas v. Green Point Mortg.Funding, No. 5:10-CV-365-D, 2011 WL 2457835, at *1 (E.D.N.C. June 16, 2011) (unpublished). Additionally, as stated, plaintiff must establish that service was adequate when a defendant seeks dismissal pursuant to Rule 12(b)(5). See, e.g., Harty, No. 5:09-CV-495-D, 2011 WL 807522, at *2. Therefore, dismissal is appropriate under both Rules 12(b)(2) and 12(b)(5) if the court determines that plaintiff failed to properly serve Doe. See, e.g., Mayberry v. United States. No. 5:11-CV-165, 2011 WL 3104666, at *2 (E.D.N.C. July 23, 2011) (unpublished); Taylor-Perkins v. Tyler, No. 2:10-CV-59-BO, 2011 WL 1705558, at *1 (unpublished).
Defendants claim that the summons failed to actually name the police officer who...
To continue reading
Request your trial