Goodwin v. Furr

• Decision Date: 29 October 1998
• Docket Number: No. 1:97CV01309.,1:97CV01309.
• Citation: 25 F.Supp.2d 713
• Court: U.S. District Court — Middle District of North Carolina
• Parties: James Richard GOODWIN, Jr. and the State of North Carolina, ex rel. James Richard Goodwin, Jr., Plaintiffs, v. Dale FURR, Sheriff of Richmond, Deputy Sheriff Brian Thorpe and Deputy Sheriff Larry Harrelson individually and in his official capacity, the County of Richmond, and Western Surety Company as surety, Defendants.

25 F.Supp.2d 713

James Richard GOODWIN, Jr. and the State of North Carolina, ex rel. James Richard Goodwin, Jr., Plaintiffs, v. Dale FURR, Sheriff of Richmond, Deputy Sheriff Brian Thorpe and Deputy Sheriff Larry Harrelson individually and in his official capacity, the County of Richmond, and Western Surety Company as surety, Defendants.

No. 1:97CV01309.

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

October 29, 1998.

Henry T. Drake, Wadesboro, NC, J. Bryan Plumlee, Henry T. Drake & Associates, Wadesboro, NC, for Plaintiffs.

W. Clark Goodman, Womble Carlyle Sandridge & Rice, Charlotte, NC, for Defendants.

MEMORANDUM OPINION AND ORDER

ELIASON, United States Magistrate Judge.

This case comes before the Court on a motion to dismiss by defendant Richmond County (hereinafter the County), pursuant to Fed.R.Civ.P. 12(b)(6), for failure to state a claim upon which relief can be granted. Richmond County Deputy Sheriffs Brian Thorpe and Larry Harrelson seek dismissal, pursuant to Fed.R.Civ.P. 12(b)(2), and (5), for lack of jurisdiction over the person, and insufficiency of process. Richmond County claims that it is not a proper party to the action, while the deputies contend that no valid service has been made on them.

Facts and Procedural History

The following is a brief summary of the facts and procedural history of this case. Because these facts relate only tangentially to the motions to dismiss, a more detailed summary is not necessary at this point.

Plaintiff James Goodwin filed a complaint in Richmond County Superior Court alleging that two of his vehicles had been seized by the Richmond County Sheriff's Department. According to the complaint, these seizures were illegal, violated Goodwin's rights under the Fourth, Fifth, and Fourteenth Amendments of the United States Constitution, and consequently violated 42 U.S.C. § 1983. The complaint also alleged that the actions violated the Law of the Land Clause of the North Carolina Constitution, Article I, Section 19. Plaintiff made a claim upon the Sheriff's official bond under N.C. Gen.Stat. § 58-76-5 and joined the surety. He asserted a claim against the County upon its bond under N.C. Gen.Stat. § 153A-435, but it is not clear that the surety was joined as a party. Defendants removed the case to this Court pursuant to 28 U.S.C. §§ 1441, 1443, and 1446.

The complaint names the County as a defendant because it has allegedly established a custom which allows illegal property seizures, such as this one, to occur and because it has not taken measures to control the Sheriff's Department. As for the deputies, the complaint states that they were directly involved in one of the illegal seizures.

I. Richmond County

Only Richmond County seeks dismissal pursuant to Rule 12(b)(6) for failure to state a claim.¹ The County's argument is a simple one. The complaint states that all seizures of plaintiff's property were carried out by the Richmond County Sheriff's Department or its deputies or agents. The County asserts that the Sheriff and his deputies are completely separate from the County and that the County cannot hire, fire, supervise, control, or direct the actions of the Sheriff or his employees. Accordingly, the County claims that, as a matter of law, it cannot be liable for any allegedly illegal seizures performed by the Sheriff or his officers. Plaintiff challenges the County's claim of independence from the Sheriff's Department by pointing out that the complaint alleges that the County has purchased liability insurance which covers "armed employees who deal directly with the public and exercise general powers of arrest." (Complaint at ¶ 9)

A. State Law Claims

The question of whether the County is responsible for the acts of the Sheriff, not unsurprisingly, most often arises as a result of some controversy involving a deputy sheriff. Chief Justice Stacy found that decisions determining the status of a deputy sheriff did not always appear consistent. He reasoned that the factual context and specific issue may make some rationales less widely applicable than others. As he phrased it in this droll little metaphor:

Instead of controlling precedents, forsooth some are found to be only inns for the night, good enough for the time and purpose, but the law, like the traveler, was up and moving on the morrow.

Styers v. Forsyth County, 212 N.C. 558, 194 S.E. 305, 307 (1937). In Styers, the court determined that a fee deputy appointed by the sheriff was not a county employee. Later, in Clark v. Burke County, 117 N.C.App. 85, 450 S.E.2d 747 (1994), it was held that neither the sheriff nor deputies were employees of the county. The sheriff was said to be an independently elected official² and the deputies were his employees. Therefore, a county is not liable for the acts of the sheriff and deputies. Id. (high speed chase). This decision by the North Carolina Court of Appeals is consistent with the earlier North Carolina Supreme Court ruling that a county which erected and maintained a jail was not liable for injuries to inmates under the sheriff's control. State ex rel. Hayes v. Billings, 240 N.C. 78, 81 S.E.2d 150 (1954)(refusing to extend municipalities liability for persons in its jails to include counties).

Plaintiff argues for an exception to these decisions holding that a county is not responsible for the acts of the sheriff or deputies based on the fact that Richmond County supplies liability insurance coverage for sheriff's officers and because plaintiff's complaint alleges intentional conduct. The Court does not believe that the North Carolina courts would recognize those facts as creating an exception. With respect to liability insurance, plaintiff fails to explain why this would convert the Sheriff into a County employee or otherwise make the County liable for the Sheriff's acts. The gratuitous act of providing liability insurance does not give a County any more right to control a sheriff or deputy under North Carolina law.

A review of the origin and purpose of local governmental liability policies fails to support plaintiff's claim. Without any liability policy, the state doctrine of governmental or sovereign immunity bars actions against the State, its counties, and public officials sued in their official capacity for acts in the performance of a governmental function. Messick v. Catawba County, North Carolina, 110 N.C.App. 707, 431 S.E.2d 489, 493-94, rev. denied, 334 N.C. 621, 435 S.E.2d 336 (1993). It covers both intentional and negligent acts.³ Dickens v. Thorne, 110 N.C.App. 39, 429 S.E.2d 176 (1993). This immunity may be waived through the purchase of liability insurance. Messick, 110 N.C.App. at 714, 431 S.E.2d at 493-494. But the surety must be joined as a party. Id. Governmental immunity does not bar an action brought against the sheriff or deputies. Id.

A county may waive governmental immunity in accordance with the provisions of N.C. Gen.Stat. § 153A-435. The statute permits the county to insure its officers, agents or employees against negligent or intentional damages to person and property. The board of commissioners determines what, who, and the amount to be covered.⁴ Although the sheriff is not a county employee, the commissioners may even include the sheriff in the county's liability policy. Smith v. Phillips, 117 N.C.App. 378, 451 S.E.2d 309 (1994). Should that occur, a plaintiff may pursue recovery for tortious actions of the sheriff or his deputies against both the sheriff's bond pursuant to N.C. Gen.Stat. § 58-76-5 and under the county's liability policy pursuant to N.C. Gen.Stat. § 153A-435. Id. In that instance, the county is not a necessary party to this action. Id. Apparently, the county's purchasing of liability insurance for the sheriff is not viewed as a waiver of its own governmental immunity, but of the sheriff's official immunity. See n. 3, supra. Consequently, there is no reason to believe that the legislature, by enacting Section 153A-435, sought to alter the prior law that the county is not liable for the actions of the sheriff.⁵ See Braswell v. Ellis, 950 F.Supp. 145 (E.D.N.C. 1995), rev'd on other grounds, 139 F.3d 888 (1998)(unpub.).

For the above reasons, the Court finds that the inclusion of the Sheriff in the County's liability policy does not serve to make the County liable for the Sheriff's actions or a proper or necessary defendant. Therefore, the County may be dismissed as a defendant as to the state law claim.

B. Federal Claims

The County may also be dismissed as to the federal claims because the complaint fails to state a factual basis for a claim against the County. A review of the general factual allegations shows that only the Sheriff and his agents were alleged to have taken unconstitutional action. The County's only involvement is the allegation that it failed to correct the unconstitutional practice of the Sheriff and that this inaction resulted in a custom of tolerating illegal seizures. However nowhere does the complaint indicate that the County in some way had notice of these illegal seizures. Nor does it indicate that the County had a right to exercise control over the Sheriff.

The test under federal law is whether the Sheriff and deputies in this case were representing the official policy of the County through their actions. Monell v. Department of Social Services, 436 U.S. 658, 694, 98 S.Ct. 2018, 2037, 56 L.Ed.2d 611 (1978). Municipal liability can arise in this instance if (1) the acts were officially sanctioned or ordered (2) by officials with final policymaking authority in that area or as determined by state law. City of St. Louis v. Praprotnik, 485 U.S. 112, 123, 108 S.Ct. 915, 924, 99 L.Ed.2d 107 (1988).

A review of two recent Fourth Circuit cases will help focus the inquiry for this case. In one case, the defendant county was held not to be liable for its sheriff's employment decisions. Harter v. Vernon, 953 F.Supp. 685, 693-694 (M.D.N.C.), aff'd, 101 F.3d 334 (4th Cir.1996), ...