Fox v. City of Greensboro, 1:10–CV–229.

• Decision Date: 27 August 2011
• Docket Number: No. 1:10–CV–229.,1:10–CV–229.
• Citation: 807 F.Supp.2d 476
• Court: U.S. District Court — Middle District of North Carolina
• Parties: William Thomas FOX, and Scott Everett Sanders, Plaintiffs, v. The CITY OF GREENSBORO, a municipality, Timothy R. Bellamy individually and in his official capacity as the Chief of the Greensboro Police Department, Gary W. Hastings, individually and in his official capacity as Assistant Chief of the Greensboro Police Department, John D. Slone, individually and in his official capacity as an officer of the Greensboro Police Department, Ernest L. Cuthbertson, individually and in his official capacity as an officer of the Greensboro Police Department, Mitchell Johnson, individually and in his official capacity as the city manager of the City of Greensboro, Martha T. Kelly individually and in her official capacity as Internal Affairs Captain of the Greensboro Police Department, and Risk Management Associates, Inc., Defendants.

807 F.Supp.2d 476

William Thomas FOX, and Scott Everett Sanders, Plaintiffs,

v.The CITY OF GREENSBORO, a municipality, Timothy R. Bellamy individually and in his official capacity as the Chief of the Greensboro Police Department, Gary W. Hastings, individually and in his official capacity as Assistant Chief of the Greensboro Police Department, John D. Slone, individually and in his official capacity as an officer of the Greensboro Police Department, Ernest L. Cuthbertson, individually and in his official capacity as an officer of the Greensboro Police Department, Mitchell Johnson, individually and in his official capacity as the city manager of the City of Greensboro, Martha T. Kelly individually and in her official capacity as Internal Affairs Captain of the Greensboro Police Department, and Risk Management Associates, Inc., Defendants.

No. 1:10–CV–229.

United States District Court, M.D. North Carolina.

Aug. 27, 2011.

John C. Vermitsky, Morrow Porter Vermitsky & Fowler, PLLC, Winston–Salem, NC, for Plaintiffs.

Alan W. Duncan, Allison O. Van Laningham, Smith Moore LLP, Greensboro, NC, Grover Gray Wilson, Wilson Helms & Cartledge, L.L.P., Winston–Salem, NC, Elizabeth A. Sprenger, James William Pope, Golding Holden & Pope, LLP, Charlotte, NC, for Defendants.

MEMORANDUM OPINION AND ORDER

THOMAS D. SCHROEDER, District Judge.

This action is one of several filed in this court by both black and white officers of the Greensboro Police Department (“GPD”) alleging racial discrimination and other wrongdoing.¹ Before the court are various motions to dismiss filed by Defendants John D. Slone (“Slone”) ² and Ernest L. Cuthbertson (“Cuthbertson”) (Doc. 39), Timothy R. Bellamy (“Bellamy”), Gary W. Hastings (“Hastings”), and Martha T. Kelly (“Kelly”) (Doc. 40), Mitchell Johnson (“Johnson”) (Doc. 41), The City of Greensboro (“the City”) (Doc. 43), and Risk Management Associates, Inc. (“RMA”) (Doc. 45). Plaintiffs William Thomas Fox (“Fox”) and Scott Everett Sanders (“Sanders”) (collectively “Plaintiffs”) oppose each motion. (Docs. 48 to 55.) For the reasons below, the motions will be granted as to Plaintiffs' federal claims. The court will decline to exercise supplemental jurisdiction over Plaintiffs' state-law claims, which will be dismissed without prejudice.

I. BACKGROUND

Plaintiffs commenced this action on March 23, 2010. (Doc. 1.) Defendants responded with motions to dismiss the Complaint, largely on the ground that it contained conclusory contentions that failed to allege sufficient facts to state a claim upon which relief could be granted. (Docs. 11, 13, 15, 17; see Doc. 34.) In reaction to the motions, Plaintiffs sought and were granted leave of court to amend the Complaint to “add[ ] factual allegation[s] that clarify and amplify the factual basis for Plaintiffs' allegations.” (Doc. 20; see Doc. 36.) Plaintiffs' Amended Complaint was filed on April 1, 2011 (Doc. 37), and Defendants have restyled their motions to dismiss toward it (Docs. 39, 40, 41, 43, 45). For purposes of the current motions, the court views all factual allegations, which are stated below, in the light most favorable to Plaintiffs as the nonmoving parties. See Ibarra v. United States, 120 F.3d 472, 474 (4th Cir.1997).

Plaintiffs are employed by the City as GPD officers. At the time of the alleged events, Fox was a Sergeant with twenty-two years of police experience, and Sanders was a Detective with seventeen years of experience. Both are white.

In June 2005, certain black GPD officers accused GPD Chief David Wray (“Wray”) of maintaining a “secret police” unit of white officers within the GPD (also referred to as Wray's “good ole boys”) to racially target black officers. These complaining black officers contended that Wray's “secret police” unit was composed of officers from the Special Investigations Section (“SIS”) of the GPD's Special Investigations Division, to which Plaintiffs were assigned. Among the accusations against Wray and his “secret police” were claims that they compiled a “black book' that allegedly targeted minority officers.” (Doc. 37 ¶ 21.) The “secret police” also allegedly conducted improper investigations of several black officers, including Officers James Hinson (“Hinson”) and Julius Fulmore (“Fulmore”).

Plaintiffs contend that the SIS investigated only legitimate crimes, including allegations of criminal police misconduct. According to Plaintiffs, no “black book” ever existed, although they did have a black binder they contend was a proper investigative tool created in response to a complaint by an alleged victim of sexual assault by a black officer. The black binder contained photos of only those black officers on duty at the time of the alleged assault and was shown only to the alleged victim as part of a legitimate investigative effort.

Plaintiffs claim that despite Defendants' awareness that the black binder was a legitimate investigative tool, Defendants “continuously and maliciously have presented this photo array as the purported black book' in an effort to defame and discredit” Plaintiffs. ( Id. ¶ 23.) Moreover, although Defendants allegedly knew or should have known that the ongoing accusations that Plaintiffs acted with racial motivations were unfounded, Defendants “discriminated against Plaintiffs based on their race by helping to promulgate the allegations of racially motivated conduct in an attempt to garner support within a segment of the African American community and placate Hinson and the complaining African American officers.” ( Id. ¶ 25.)

“Upon information and belief,” Plaintiffs allege, Johnson, the Greensboro City Manager, “with racial animus” directed the City Attorney to meet secretly with the complaining black officers' lawyers. ( Id. ¶ 26.) While this meeting was purportedly to discuss the complaining officers' concerns, Plaintiffs surmise that its true purpose was to obtain information to use against Wray, Fox, and Sanders. Subsequently, “[u]pon information and belief” and “as part of an illegal plan,” Johnson allegedly directed the City Attorney's Office to conduct an investigation “for purposes of discrediting David Wray and his administration, including specifically [Plaintiffs].” ( Id. ¶ 27.) As part of this investigation, Johnson and the Greensboro City Council contracted with RMA, a third party, to provide a “purportedly objective overview of the investigation process,” yet the City Attorney's investigation and RMA's investigation both contained “numerous factual errors and unjustified conclusions” and were “manipulated and controlled” by Johnson, Bellamy (then Assistant Chief), and Hastings (then Captain) to justify removing Fox and Sanders. ( Id. ¶¶ 28–29.) As an example, Plaintiffs allege, RMA administered a polygraph examination in a manner that did not accord with the bylaws of the American Association of Police Polygraphists and N.C. Gen.Stat. § 74C–8(d)(2).

The City ultimately settled with Hinson. In exchange for his promise not to sue the City, it (through Johnson) agreed to return him to active duty, purge all records of his investigations, and advance his career within the GPD. Johnson also allegedly agreed to force Wray and his “good ole boys” in the SIS from the GPD. This specifically included Plaintiffs “because they were Caucasian[,] and Defendants[ ] wanted to make an example out of Caucasian officers.” ( Id. ¶ 31.)

On January 9, 2006, Wray was forced to resign, and the City appointed Bellamy as Acting Chief and then Chief. The Federal Bureau of Investigation (“FBI”) investigated possible violations of federal civil rights law by Wray, Fox, Sanders, and the SIS, but found no evidence of any violations of federal law. ( Id. ¶ 36.)

Subsequently, at Bellamy's direction and with Hastings' backing, the City requested the North Carolina State Bureau of Investigation (“SBI”) to investigate Fox, Sanders, and the SIS. Plaintiffs contend that Johnson knew or should have known that the SBI investigation was unfounded, but he backed Bellamy's decision by giving him the reports from the City Attorney and RMA, instructing Bellamy “to see if the issues in the report[s] were true and accurate and to report back to Johnson and tell him what he was going to do about it.” ( Id. ¶ 38.) When Bellamy “reported that the issues were true,” Johnson directed him to initiate an SBI investigation. ( Id.)

During its investigation, the SBI interviewed many GPD officers, including Bellamy, Hastings (who now commanded SIS and eventually became Assistant Chief), Slone, and Cuthbertson. Plaintiffs charge that Bellamy, Hastings, and Kelly (then a GPD Internal Affairs Captain) conspired “to deprive the Plaintiffs of their constitutionally protected rights and to maliciously and without probable cause, initiate and continue criminal charges against the Plaintiffs.” ( Id. ¶ 40.) At Hastings' request, Plaintiffs contend, Kelly destroyed a document—identified only as “Memorandum # 9”—which pertained (in an unstated way) to the SBI investigation.³ Also, Plaintiffs contend, Kelly “failed to notify the SBI of false criminal and administrative allegations brought forth by Gary Hastings which concerned Plaintiff Sanders.” ( Id.) “Upon information and belief,” Plaintiffs charge, Hastings, because of Wray's previous discipline of him, had a “personal vendetta” against Wray and his “good ole boys,” including Plaintiffs. ( Id. ¶ 42.)

Also “[u]pon information and belief,” Johnson, Bellamy, Hastings, Slone, and Cuthbertson “entered into an illegal agreement and discussed, created and implemented a plan to prevent information that would be favorable to the Plaintiffs from being given to the investigating SBI officers and provided the SBI with false, incomplete, and/or misleading statements and information in an attempt to discredit and bring charges against [Plaintiffs] because of their race.” ⁴ ( Id. ¶ 43.) Slone and Cuthbertson allegedly discussed with “Hastings and/or Bellamy and/or any other Defendant”...