Fulmore v. City of Greensboro, 1:09–CV–373.

• Decision Date: 06 July 2011
• Docket Number: No. 1:09–CV–373.,1:09–CV–373.
• Citation: 834 F.Supp.2d 396
• Court: U.S. District Court — Middle District of North Carolina
• Parties: Julius FULMORE, Plaintiff, v. CITY OF GREENSBORO, Defendant.

834 F.Supp.2d 396

Julius FULMORE, Plaintiff,

v.CITY OF GREENSBORO, Defendant.

No. 1:09–CV–373.

United States District Court,

M.D. North Carolina.

July 6, 2011.

Amiel J. Rossabi, Forman Rossabi Black, P.A., Greensboro, NC, for Plaintiff.

Alan W. Duncan, Allison O. Van Laningham, Smith Moore LLP, Greensboro, NC, for Defendant.

MEMORANDUM OPINION AND ORDER

THOMAS D. SCHROEDER, District Judge.

Before the court is the motion to dismiss of Defendant City of Greensboro (“the City”) pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). (Doc. 27.) Plaintiff Julius Fulmore (“Fulmore”) opposes the motion. (Doc. 30.) The motion has been fully briefed, and a hearing was held on May 6, 2011. For the reasons set forth below, the motion will be granted in part and denied in part.

I. BACKGROUND

Fulmore commenced this action on May 21, 2009, and is proceeding currently on his Second Amended Complaint (“SAC”). (Doc. 23.) For purposes of the current motion, the court views all factual allegations in the light most favorable to Fulmore as the non-moving party. See Ibarra v. United States, 120 F.3d 472, 474 (4th Cir.1997).

Fulmore is an African–American/black police officer employed by the Greensboro Police Department (“GPD”) since 1984. He has worked in various GPD units, including the Vice and Narcotics Department, the Traffic Enforcement Department, the Violent Crime Organized Crime Drug Enforcement Task Force, and the Special Intelligence Division (“SID”).

In 2003, David Wray (“Wray”) became the GPD police chief. Fulmore alleges that Wray “created and developed a pattern and practice of investigating and disciplining black officers, including Officer Fulmore, more harshly, and paying and promoting black officers, including Officer Fulmore, less favorably, than white officers.” (Doc. 23 ¶ 38.)

Historically, criminal investigations of GPD officers were carried out by the Criminal Investigative Division (“CID”) pursuant to clear guidelines and standards, and administrative investigations of GPD officers were performed by the Internal Affairs Division (“IA”). Fulmore alleges that Wray continued these practices only for investigations of non-black officers and bypassed them for investigations of black officers, which he assigned to Officer Scott Sanders (“Sanders”), an SID investigator. Wray required SID officers to report directly to deputy chief Randall Brady (“Brady”), immediately below Wray. Brady allegedly authorized Sanders to report directly to him, instead of to the SID sergeant. Thus, Sanders effectively operated outside the normal chain of command. Wray, Brady, and Sanders are all white.

According to Fulmore, Sanders reinvestigated allegations against black GPD officers that previous investigations had shown to be false or unfounded. Fulmore alleges that such actions were not taken against non-black officers and that the GPD aimed “to destroy the reputations of black GPD officers,” “to prevent them from receiving promotions, meritorious assignments, pay raises and other [compensation],” and “to terminate and or [sic] imprison black GPD officers.” ( Id. ¶¶ 66–67.)

In or around 2003, Wray and Brady allegedly directed Sanders to create a photo lineup containing pictures of five black GPD officers, including Fulmore. The photos were shown to criminals or suspects from 2003 through 2005 in an effort to elicit false allegations of improper conduct by Fulmore. The GPD also allegedly created a digital photo array of all black GPD officers, which Sanders kept on his department-issued computer and showed to criminals or suspected criminals. Fulmore alleges that both photo arrays were used to facilitate discriminatory investigations against him from 2003 through 2005. ¹

In the fall of 2003, Pamela Williams (“Williams”), an inmate in the Guilford County Jail, accused Fulmore of involvement with a drug dealer. This led to an investigation by the GPD, the Guilford County Sheriff's Department, and the North Carolina State Bureau of Investigation (“SBI”). Allegedly due to Fulmore's race, Wray and Brady directed Sanders to conduct the GPD's investigation of Fulmore. The SBI quickly discredited Williams' allegations as baseless, but Sanders continued his investigation with the authorization of Wray and Brady, despite concerns expressed by the SBI.

Around December 2003, Sanders allegedly purchased a key catcher, which he secretly installed on Fulmore's GPD-issued computer to record all keystrokes by its user. The key catcher collected the passwords to Fulmore's official and personal email accounts, which Sanders then searched. Sanders also searched a laptop computer temporarily provided to Fulmore by the United States Department of Housing and Urban Development. These searches did not lead to any administrative or criminal charges against Fulmore, were allegedly in violation of preexisting policies of the City and the GPD, and were allegedly conducted because of Fulmore's race. Around January 2004, Wray, Brady, and Sanders placed a GPS tracking device on Fulmore's police vehicle, which also never led to any charges against Fulmore. Fulmore alleges that no non-black officer was treated in such a manner. Although an analysis of Fulmore's phone records by the SBI in early 2004 established that Williams' allegations were false, the GPD continued its investigation of Fulmore through the first half of 2004.

On June 2, 2004, Fulmore rented a hotel room for an acquaintance named Greg Lewis (“Lewis”), who spent the night there with an associate. After learning that Fulmore had rented the room, Sanders searched it, although he had no evidence of any criminal conduct by Fulmore at the hotel. Drug paraphernalia and a used condom were found in the room. Contrary to GPD protocol, Sanders did not treat the room as a crime scene, call the IA Commander or a CID officer to the scene, or take photographs of the location of the evidence. Fulmore alleges that these violations were due to his race. Sanders also searched an adjacent room rented by known drug user and prostitute Brenda Weidman (“Weidman”), discovered drug paraphernalia, and arrested her. Weidman first told the GPD that she was unaware Fulmore had rented the room next door, but she then changed her story to say that she had smoked crack and charges, and Lewis corroborated Fulmore's story by admitting possession of the drug paraphernalia and stating that Fulmore had no knowledge of the paraphernalia and did not smoke crack at the hotel.

Fulmore was suspended on administrative leave from early June 2004 to March 2005 and investigated criminally and administratively. When interviewed again by the GPD, Weidman contradicted her earlier statements concerning Fulmore, and a DNA test of the used condom found in Lewis' room corroborated Fulmore's earlier statements.

During his suspension, Fulmore worked at his auto body shop. The GPD allegedly directed various people to attempt to sell him stolen property at his shop, in an effort to frame him. The GPD's efforts, however, were unsuccessful.

When the investigations into Weidman's allegations were completed in March 2005, Fulmore was exonerated of all alleged crimes, although he was cited for the administrative violation of failing to document Weidman as an informant. As punishment for this violation, Fulmore was reassigned to patrol division. Fulmore alleges that no non-black GPD detective has ever been reassigned to patrol division from an investigative division for failure to document an informant, a common occurrence in the GPD, and that the true reason for his reassignment was his race. Thereafter, Brady directed Sanders to continue investigating Fulmore, even though all prior allegations against him had been resolved. This new round of investigation allegedly lasted from March 2005 through the rest of the year and involved the GPD's surveillance of Fulmore though a private detective.

On August 1, 2005, Fulmore submitted an Intake Questionnaire to the United States Equal Employment Opportunity Commission (“EEOC”), alleging racial discrimination by the City. (Doc. 24.) He “intended the EEOC to take prompt action against the City when he completed his [I]ntake [Q]uestionnaire.” (Doc. 23 ¶ 226.)

On November 11, 2005, the City hired law enforcement consultant Risk Management Associates of Raleigh (“RMA”) to evaluate problems within the GPD. Following an investigation that included fifty-two interviews of GPD officers and related personnel, RMA issued a report (“RMA Report”) on December 11, 2005, ² allegedly finding that “the GPD engaged in a number of illegal and or [sic] improper practices,” including “disparate treatment of African–Americans,” “the appearance of racial targeting/discrimination,” and “failure to follow procedures.” ( Id. ¶¶ 234–35.) The RMA Report is attached to the SAC and incorporated therein by reference. (Doc. 25.) In response to the RMA Report, the City allegedly accepted the resignations of Wray and Brady.

Fulmore alleges that the EEOC delayed in preparing his Charge of Discrimination (“Charge”) until June 1, 2006. Once the Charge was signed and filed, the EEOC conducted an investigation and determined that Fulmore had experienced discrimination. (Doc. 23 ¶ 249; see Doc. 26–3.) The EEOC referred his case to the United States Department of Justice, and Fulmore received a “Right to Sue Letter” (Doc. 26–5) on March 3, 2009. Within the required 90 days, Fulmore commenced this action against the City for discrimination on the basis of race in violation of Title VII of the Civil Rights Act of 1964 (as amended), 42 U.S.C. § 2000e et seq. (“Title VII”) (Count I) as well as 42 U.S.C. §§ 1981 and 1983 (Count II).

II. ANALYSISA. Standard for Rule 12(b)(6) Motions

The purpose of a motion under Federal Rule of Civil Procedure 12(b)(6) is to “test[ ] the sufficiency of a complaint” and not to “resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses.” Republican Party of N.C....