Johnson v. Allen

• Decision Date: 07 September 2018
• Docket Number: No. 7:18-CV-14-D,7:18-CV-14-D
• Court: U.S. District Court — Eastern District of North Carolina
• Parties: Brad R. JOHNSON, Plaintiff, v. Rebecca ALLEN, et al., Defendant.

416 F.Supp.3d 550

Brad R. JOHNSON, Plaintiff,

v.Rebecca ALLEN, et al., Defendant.

No. 7:18-CV-14-D

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

Signed September 7, 2018

Brad R. Johnson, Oak Island, NC, pro se.

Christopher J. Geis, Loryn Ashley Buckner, Womble Bond Dickinson (US) LLP, Winston Salem, NC, Benton Louis Toups, Cranfill Sumner & Hartzog, LLP, Edwin L. West, III, Brooks, Pierce, McLendon, Humphrey & Leonard, LLP, Wilmington, NC, Elizabeth C. King, Cranfill Sumner & Hartzog, Raleigh, NC, Sarah M. Saint, Brooks, Pierce, McLendon, Humphrey & Leonard LLP, Greensboro, NC, for Defendant.

ORDER

JAMES C. DEVER III, Chief United States District Judge

On January 26, 2018, Brad R. Johnson ("Johnson" or "plaintiff") filed his first amended complaint ("complaint") asserting claims under 42 U.S.C. § 1983 against numerous defendants [D.E. 6]. Thereafter, defendants moved to dismiss Johnson's complaint for failure to state a claim upon which relief can be granted [D.E. 11, 29, 39, 42]. Johnson responded in opposition [D.E. 31, 48, 54, 55]. Defendants moved to strike Johnson's response [D.E. 50, 58, 60]. Johnson has twice moved for leave to file an amended complaint [D.E. 34, 64], and moved for leave to file a surreply [D.E. 52]. As explained below, the court grants defendants' motions to dismiss, dismisses the complaint, denies Johnson's motions for leave to amend as futile, denies Johnson's motion for leave to file a surreply, and denies defendants' motions to strike as moot.

I.

On December 5, 2017, Principal Michael Hodges ("Hodges") and Assistant Principal James Simmons ("Simmons") interviewed SMJ, Johnson's 16-year old daughter and student at South Brunswick High School, concerning SMJ's unwanted receipt of a pornographic image of another male student and SMJ's transmission of that image to other students. See Compl. [D.E. 6] ¶ 13(a)(1). Simmons and Hodges asked SMJ write and sign a statement detailing her knowledge of the image. See id. In her statement, SMJ wrote that she had received an unwanted picture of a male student, that she told her friends about the picture, and that she sent the picture to her friends after they requested to see the picture. See id.

Later that day, Rebecca Allen ("Allen") and Brandon Fuller ("Fuller"), detectives from the Brunswick County Sheriff's Department, came to the school to interview students concerning the image. See id. ¶ 13(a)(2). Hodges gave Allen and Fuller SMJ's signed written statement. See id. Allen and Fuller then interviewed several students, including SMJ, concerning their knowledge of the image. See id. Allen and Fuller interviewed SMJ in a meeting room at the school with the door closed. See id. ¶ 13(c)(1). During the interview, Allen and Fuller asked SMJ if they could search her tablet device. See id. ¶ 13(c)(2). SMJ agreed to the search. See id. Before the interview, Simmons called SMJ's home and left a message informing SMJ's parents that detectives would be speaking with SMJ. See id. ¶ 13(d)(1). SMJ's mother returned Simmons's phone call, but she did not consent to the interview. See id. Johnson also called Simmons and told Simmons that he did not consent to the interview, and that if SMJ's mother consented, that such consent was withdrawn. See id. ¶¶ 13(d)(2), (3).

On December 6, 2017, Johnson used complaint procedures on the Brunswick County Sheriff's Department website to complain about the interview. See id. ¶ 14(a). Captain Mose Highsmith ("Highsmith"), a staff attorney for the Brunswick County Sheriff's Office, responded to Johnson's complaint. See id.; [D.E. 6-3]. Highsmith told Johnson that: (1) detectives identified SMJ as a potential witness in a matter concerning pornographic images being transmitted via cellphones to students; (2) Allen and Fuller asked school officials to put them in contact with SMJ so they could ask SMJ if she had any information and to determine if SMJ had been a victim of a crime; (3) school officials requested permission from SMJ's mother to interview SMJ, and SMJ's mother granted permission; and (4) SMJ asked detectives to close the door and voluntarily provided detectives information concerning the image. See [D.E. 6-3] 7–8. Highsmith also told Johnson that SMJ was not in custody during the interview. Thus, the detectives were not required to obtain parental permission before speaking with SMJ. See id.

On January 17, 2018, Johnson filed his complaint, and the court issued six summonses. See [D.E. 1, 4]. Johnson delivered six sets of the complaint and summons to the Sheriff's Department Civil and Warrant Division. See Compl. ¶ 14(d). On January 18, 2018, Highsmith sent a letter to Johnson informing him that because sheriff's deputies were defendants in the case, the sheriff's office could not serve the complaint and summons. See id. ¶ 14(e); [D.E. 30-2]. On January 26, 2018, Johnson filed his first amended complaint, naming Highsmith as a defendant. See [D.E. 6]. Thereafter, defendants moved to dismiss Johnson's first amended complaint ("complaint"). See [D.E. 11, 29, 39, 42]; Fed. R. Civ. P. 12(b)(6).

II.

A motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure for "failure to state a claim upon which relief can be granted" tests whether the complaint is legally and factually sufficient. See Ashcroft v. Iqbal, 556 U.S. 662, 677–78, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ; Bell Atl. Corp. v. Twombly, 550 U.S. 544, 562-63, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ; Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008) ; accord Erickson v. Pardus, 551 U.S. 89, 93–94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (per curiam). In considering a motion to dismiss, a court need not accept a complaint's legal conclusions drawn from the facts. See, e.g., Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. Similarly, a court "need not accept as true unwarranted inferences, unreasonable conclusions, or arguments." Giarratano, 521 F.3d at 302 (quotation omitted); see Iqbal, 556 U.S. at 677–79, 129 S.Ct. 1937.

The standard used to evaluate the sufficiency of a pleading is flexible, "and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." Erickson, 551 U.S. at 94, 127 S.Ct. 2197 (emphasis and quotation omitted). Erickson, however, does not "undermine [the] requirement that a pleading contain ‘more than labels and conclusions.’ " Giarratano, 521 F.3d at 304 n.5 (quoting Twombly, 550 U.S. at 555, 127 S.Ct. 1955 ); see Iqbal, 556 U.S. at 677–83, 129 S.Ct. 1937 ; Coleman v. Md. Court of Appeals, 626 F.3d 187, 190 (4th Cir. 2010) ; Nemet Chevrolet Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 255–56 (4th Cir. 2009) ; Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009). Although a court must liberally construe a pro se plaintiff's allegations, it "cannot ignore a clear failure to allege facts" that set forth a cognizable claim. Johnson v. BAC Home Loans Servicing, LP, 867 F. Supp. 2d 766, 776 (E.D.N.C. 2011) ; see Giarratano, 521 F.3d at 304 n.5.

A.

Johnson names Brunswick County, Brunswick County Board of Education, Detective Rebecca Allen, Detective Brandon Fuller, Mose Highsmith, Principal Michael Hodges, and Assistant Principal James Simmons as defendants. Compl. ¶¶ 2–9. Johnson's complaint has four sections labeled as causes of action. See id. ¶¶ 15–77. In count one, Johnson seeks relief against all defendants under 42 U.S.C. § 1983 for a violation of SMJ's Fifth Amendment and Fourteenth Amendment protection against self-incrimination. See id. ¶¶ 18–30. In count two, Johnson seeks relief under section 1983 against all defendants for a conspiracy to violate SMJ's Fifth Amendment and Fourteenth Amendment protection against self-incrimination. See id. ¶¶ 31–44. In count three, Johnson seeks relief under section 1983 against Allen, Fuller, Brunswick County, and Brunswick County Board of Education for a violation of SMJ's and Johnson's Fourth Amendment protection against unreasonable searches and seizures. See id. ¶¶ 45–59. In count four, Johnson seeks relief under section 1983 against all defendants for a violation of Johnson's Fourteenth Amendment due process rights concerning his freedom of speech and the care, custody, and management of SMJ. See id. ¶¶ 60–77.

1.

Non-attorney pro se plaintiffs may not litigate their minor children's claims. See Myers v. Loudoun Cty. Pub. Sch., 418 F.3d 395, 400 (4th Cir. 2005) ; Oxendine v. Williams, 509 F.2d 1405, 1407 (4th Cir. 1975) (per curiam); Myers v. North Carolina, No. 5:12-CV-714-D, 2013 WL 4456848, at *1 (E.D.N.C. Aug. 16, 2013) (unpublished), aff'd sub nom. Myers v. Bizzell, 673 F. App'x 310 (4th Cir. 2016) (per curiam) (unpublished).¹ The policy animating the rule against allowing non-attorney pro se plaintiffs to litigate their children's claims is primarily "based on protection of the legal interests of the minor and the impropriety of a person who is not a member of the bar representing another person in court proceedings." Tindall v. Poultney High Sch. Dist., 414 F.3d 281, 284 (2d Cir. 2005) ; see Myers, 418 F.3d at 400. Thus, the court dismisses count one, count two, and any remaining claims that Johnson made on SMJ's behalf.²

2.

As for Johnson's Fourth Amendment claim in count three against Allen, Fuller, Brunswick County, and Brunswick County Board of Education ("Board of Education"), Johnson argues that defendants violated his Fourth Amendment rights because he had a reasonable expectation of privacy in the tablet that detectives searched. See Compl. ¶ 49.

Johnson names Brunswick County as a defendant because he alleges Brunswick County employs detectives Allen and Fuller. See id. ¶ 3. A county may be held liable under section 1983 only "for acts for which the county has final policymaking authority." Worrell v. Bedsole, No. 95-2816, 1997 WL 153830, at *5 (4th Cir. Apr. 3, 1997) (unpublished); see City of St. Louis v. Praprotnik, 485 U.S. 112, 124–25, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988)....