Hammary v. Soles
| Decision Date | 22 March 2013 |
| Docket Number | 1:09-CV-781 |
| Court | U.S. District Court — Middle District of North Carolina |
| Parties | DYRON D. HAMMARY, Plaintiff, v. JERRY WAYNE SOLES, JR., ET AL., Defendants. |
Dyron Hammary has sued several law enforcement officers and a dog for civil rights violations arising out of a traffic stop and his subsequent arrest and imprisonment on later-dismissed cocaine charges. The complaint adequately alleges that the officer who stopped Mr. Hammary, searched his car, and arrested him discriminated against Mr. Hammary based on his race in violation of 42 U.S.C. § 1981 and committed Fourth Amendment violations actionable under 42 U.S.C. § 1983. The complaint also adequately alleges that another officer who interrogated Mr. Hammary after his arrest violated § 1981. As to those claims, Defendants' Rule 12(b)(6) motion to dismiss, (Doc. 16), should be denied; otherwise, the complaint fails to state a claim on which relief may be granted and the motion should be allowed. Defendants' motion for Rule 11 sanctions, (Doc. 22), should be granted to the extent it concerns Mr. Hammary's filing of claims against a police dog, but otherwise is taken under advisement pending a hearing.
As is appropriate in connection with a motion to dismiss for failure to state a claim, the Court will accept the factual matter pleaded in the complaint as true and view it in the light most favorable to the plaintiff. Ibarra v. United States, 120 F.3d 472, 474 (4th Cir. 1997). The factual recitation here is taken from Mr. Hammary's complaint.1
On September 10, 2008, Mr. Hammary, who is African-American, was driving along the interstate in a truck legally rented by his fiancée. (Doc. 2 at ¶¶ 12-13.) He was accompanied by a passenger, Kenneth Boothe. (Id. at ¶ 13.) Even though Mr. Hammary was obeying the speed limit and other traffic rules, defendant Detective Jerry Wayne Soles, Jr., of the Davidson County Sheriff's Office stopped Mr. Hammary. (Id. at ¶ 12.) After looking at Mr. Hammary's driver's license, Detective Soles asked, "Where are you colored boys coming from?" (Id.) Upon seeing that Mr. Hammary's name was not on the rental agreement, Detective Soles put Mr. Hammary in the back of his police vehicle. (Id. at ¶ 13.) Detective Soles then started asking questions about luggage he observed in the back of the truck, stating, "I know you Niggers' [sic] got fucken [sic] drugs in that car." (Id.)
Detective Soles asked for Mr. Hammary's consent to search the truck. (Id.) It is unclear whether Mr. Hammary gave such consent, though he did protest that there was nothing illegal inthe truck. (Id.) Detective Soles ordered Mr. Boothe to exit the truck and sit on the pavement, then approached the truck with defendant "Xena," a drug-sniffing dog. (Id. at ¶ 14.) In an allegation that is not completely clear, Mr. Hammary alleges that Detective Soles contends that he gave Xena a command to "find the dope," after which the dog alerted at the passenger side door. (Id. at ¶ 19.) One would infer from this that Mr. Hammary contends the dog did not in fact alert. Detective Soles removed luggage from the truck while stating, "I knew you Niggers' [sic] had drugs in that car." (Id. at ¶ 15.) Detective Soles opened the luggage and found milk formula for Mr. Hammary's fiancée's baby. (Id. at ¶ 15.) Without conducting a field test, Detective Soles assumed the substance was cocaine. (Id. at ¶¶ 15, 18.) He arrested both men and charged Mr. Hammary with possession of drug paraphernalia, maintaining a vehicle for a controlled substance, and two counts of trafficking in cocaine. (Id. at ¶ 16.)
After his arrest, Mr. Hammary was taken to a sheriff's office, where defendant Lieutenant M. Potter questioned him. (Id. at ¶ 26.) When Mr. Hammary complained about the conduct of Detective Soles, Lieutenant Potter responded, "Shut your black lying mouth," adding, "Only thing I want to hear from you is a confession, that you were bringing that cocaine to sale [sic] in my County." (Id.) Lieutenant Potter also made threatening physical gestures. (Id.) Mr. Hammary then refused to talk with Lieutenant Potter and requested a lawyer. (Id. at ¶ 27.)
On September 24, more than two weeks after Mr. Hammary's arrest, defendant Ricky Kilian submitted the substance seized during the traffic stop to a North Carolina State Bureau of Investigation ("SBI") lab. (Id. at ¶ 21.) On October 9, the lab informed Detective Soles that the seized substance was not a controlled substance. (Id. at ¶ 22.) A little over a month later, on November 17, Detective Soles offered testimony to a grand jury that contradicted the lab report, and the grand jury returned a two-count indictment against Mr. Hammary for trafficking cocaine.(Id. at ¶ 23.) Defendant Kevin Wallace also gave unspecified false information to the grand jury. (Id. at ¶ 25.)
While not alleged directly, it appears from the complaint that Mr. Hammary was unable to make bond. A month after he was indicted, and about three months after his traffic stop and arrest, the charges were apparently dismissed and Mr. Hammary was released. (Id. at ¶ 30.)
Mr. Hammary, acting pro se, filed a verified complaint against the following defendants in their individual and official capacities: (1) Detective Soles; (2) Lieutenant Potter; (3) Kevin Wallace of the Guilford County Sheriff's Office; (4) the police dog Xena; (5) Mr. Kilian; and (6) Davidson County Sheriff David Grice.2 The complaint alleges that Defendants deprived Mr. Hammary of his civil rights in violation of 42 U.S.C. §§ 1981, 1982, 1983, 1985, and 1986. Defendants filed a Rule 12(b)(6) motion to dismiss the complaint for failure to state a claim upon which relief can be granted, (Doc. 16), and a motion for Rule 11 sanctions, (Doc. 22).3
In deciding a motion to dismiss under Rule 12(b)(6), courts apply the well-known standard set forth in Ashcroft v. Iqbal, 556 U.S. 662 (2009), and Bell Atlantic Corp. v. Twombly,550 U.S. 544 (2007). A plaintiff must articulate facts that, when accepted as true, establish "a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570. "The plausibility standard requires a plaintiff to demonstrate more than 'a sheer possibility that a defendant has acted unlawfully.'" Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (quoting Iqbal, 556 U.S. at 678). "At bottom, determining whether a complaint states on its face a plausible claim for relief and therefore can survive a Rule 12(b)(6) motion will 'be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.'" Francis, 588 F.3d at 193 (quoting Iqbal, 556 U.S. at 679).
Mr. Hammary alleges that each of the defendants violated 42 U.S.C. § 1981, which states in relevant part:
All persons within the jurisdiction of the United States shall have the same right in every State and Territory . . . to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.
42 U.S.C. § 1981(a). A plaintiff asserting a § 1981 claim must demonstrate "(1) that he is a member of a racial minority, (2) that defendants had the intent to discriminate against him on the basis of his race, and (3) that defendants' discrimination concerned one of the statute's enumerated activities." Pena v. Porter, 316 F. App'x 303, 316 (4th Cir. 2009) (citing Brown v. City of Oneonta, 221 F.3d 329, 339 (2d Cir. 2000)); see generally Gen. Bldg. Contractors Ass'n, Inc. v. Pennsylvania, 458 U.S. 375, 391 (1982) ().
Mr. Hammary has sufficiently alleged facts establishing plausible claims for relief under § 1981 against Detective Soles and Lieutenant Potter in their individual capacities. Mr. Hammary is a member of a racial minority. He alleges that Detective Soles made a series of racially biased comments to him and that Lieutenant Potter made at least one similar comment. The context of those alleged comments suggests that discriminatory intent motivated Detective Soles's decisions to pull Mr. Hammary over, to conduct a search in which Detective Soles may have induced Xena to alert, to conclude that the seized substance was cocaine without conducting a field test, and to give grand jury testimony directly contradicting the SBI lab's analysis, and motivated Lieutenant Potter's threats and demand for a confession.
The Fourth Circuit "has never decided whether racially motivated searches and seizures fall within § 1981's enumerated activities and thus satisfy the third prong of a § 1981 claim." Pena, 316 F. App'x at 316. Other courts of appeal considering the question have held that "misuse of governmental power motivated by racial animus comes squarely within the 'equal benefit' and 'like punishment' clauses" of § 1981(a). Alexis v. McDonald's Rests. of Mass., Inc., 67 F.3d 341, 348 (1st Cir. 1995) (collecting cases). Here, the complaint asserts facts that, when taken as true, support the inference that Mr. Hammary would not have been pulled over, detained, searched, arrested, indicted, imprisoned, or threatened had he not been black. This alleged conduct of Detective Soles and Lieutenant Potter potentially falls within the scope of § 1981's prohibition against discrimination. See, e.g., Mahone v. Waddle, 564 F.2d 1018, 1027-28 (3d Cir. 1977) ().
Police officers sued in their individual capacities have qualified immunity from personal liability for...
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