King v. Jefferies

Decision Date25 November 2005
Docket NumberNo. 1:04 CV 00007.,1:04 CV 00007.
Citation402 F.Supp.2d 624
CourtU.S. District Court — Middle District of North Carolina
PartiesTitus H. KING, Sr., Plaintiff, v. Erma JEFFERIES, individually, in her official capacity as mayor and an agent for the Town of East Spencer, John H. Noble, III, individually, in his official capacity as Alderman and as agent for the Town of East Spencer, Deloris High, individually, in his official capacity as Alderman and as agent for the Town of East Spencer, Vernon Russell, individually, in his official capacity as Town Attorney and as agent for the Town of East Spencer, W. Ronald Hash, individually, in his official capacity as Alderman and as agent for the Town of East Spencer, John L. Rustin, individually, in his official capacity as Alderman and as agent for the Town of East Spencer, Phronice Johnson, individually, in his official capacity as Alderman and as agent for the Town of East Spencer, William Bassinger, individually, in his official capacity as a law enforcement officer and as agent for the Town of East Spencer, Officer Swearin, individually, in his official capacity as a law enforcement officer and as agent for the Town of East Spencer, Brett Bass, individually, in his official capacity as a law enforcement officer and as agent for the Town of East Spencer, John Doe # 1, individually, in his official capacity as a law enforcement officer and as agent for the Town of East Spencer, Town of East Spencer, North Carolina, James Schmierer, Officer, individually, in his official capacity as a law enforcement officer and as agent for the Town of East Spencer, Jeff Hooks, individually, in his official capacity as a law enforcement officer and as agent for the Town of East Spencer, Darrin Dearth, individually, in his official capacity as a law enforcement officer and as agent for the Town of East Spencer, Jeff Alley, individually, in his official capacity as a law enforcement officer and as agent for the Town of East Spencer, Defendants.

Michael Lee King, King & Stockton, E. Spencer, NC, for Plaintiff.

William A. Blancato, McCall Doughton & Blancato, P.L.L.C., Winston-Salem, NC, for Defendants.

MEMORANDUM OPINION AND ORDER

OSTEEN, District Judge.

Plaintiff Titus H. King, Sr. has filed suit against Erma Jefferies, John Noble, III, Deloris High, Vernon Russell, W. Ronald Hash, John L. Rustin, Phronice Johnson, William Bassinger, James Schmierer, Brett Bass, Jeff Hooks, Darrin Dearth, and Jeff Alley, all both individually and in their capacities as agents of the Town of East Spencer, and against the Town of East Spencer. Plaintiff brings claims under 42 U.S.C. § 1983, alleging that the actions of Defendants in removing him from a meeting of the East Spencer Board of Aldermen violated his right to be free from unreasonable search and seizure under the Fourth and Fourteenth Amendments, his rights to freedom of speech and association under the First and Fourteenth Amendments, and his right to Due Process under the Fourteenth Amendment. He also brings a claim alleging a conspiracy among Defendants in violation of 42 U.S.C. § 1985(2) and (3). Additionally, Plaintiff asserts state law claims for deprivation of rights under the North Carolina Constitution and for malicious prosecution under the common law. This matter is before the court on two motions by Defendants: (1) a motion to dismiss for lack of personal jurisdiction, insufficiency of process, and insufficiency of service of process; and (2) a motion for failure to state a claim on which relief can be granted. Additionally, in response to Defendants' motions, Plaintiff has made two motions: (1) a motion requesting permission to amend his complaint, and (2) a motion requesting an extension of time to complete service.

I. BACKGROUND

When considering a motion to dismiss, a court must construe the complaint in the light most favorable to the plaintiff, accepting as true all well-pleaded factual allegations. Randall v. United States, 30 F.3d 518, 522 (4th Cir.1994). The Amended Complaint sets out the following factual allegations.

On January 6, 2003, Plaintiff attended a meeting of the Town of East Spencer Board of Aldermen, a body of which he was a member. Also participating in the meeting as Aldermen were Defendants Jefferies, Noble, High, Hash, Rustin, and Johnson ("the Aldermen"); Defendant Russell was present in his capacity as attorney for the town. Defendant police officers Bassinger, Alley, Dearth, Bass, Hooks, and Schmierer ("the officers") were also at the meeting.

Around 9:30 p.m., the Board announced that it would enter into a closed session.1 Shortly before the closed session began, Jefferies and some of the other Aldermen asked at least some of the officers to "hang around," in case they were needed during the closed session. (Am.Compl.¶ 30.)

The Board began the closed session by discussing whether such sessions could be tape recorded by participants. On this topic, the Board heard from Chris Ford the town administrator, a report, which included the results of discussions with the North Carolina Attorney General's Office and the North Carolina Institute of Government. Following debate, the Board, on a vote of five to one, adopted a policy that "[e]xecutive sessions of the Board will not be permitted to be taped by anyone." (Id. ¶ 25.)

Until that point in the meeting, both Plaintiff and the town clerk had been tape recording the meeting. After the new policy was adopted, the Aldermen instructed Plaintiff to either turn off his tape recorder or leave the meeting; the town clerk was not so instructed. Plaintiff refused to comply with this instruction. At that time, Defendants Noble and Jefferies ordered the officers to enter the room in which the meeting was taking place. After further debate about the policy, the Aldermen ordered the officers to "forcibly remove [Plaintiff] from the meeting room." (Id. ¶ 33.) In response, the officers grabbed Plaintiff, lifted him from his seat and carried him out of the room, in the process "slamming him with great force on his head against a brick wall and upon a concrete floor." (Id. ¶ 34.) Plaintiff did not resist the officers during his removal.

Several events followed Plaintiff's removal from the meeting. Immediately following his removal, Plaintiff's tape recorder was seized, and he was arrested. He was charged with trespassing on town property, resisting a public officer, and injuring personal property. These charges were eventually dropped. Also, Plaintiff challenged the legitimacy of the Board's tape recording policy in North Carolina Superior Court. That court determined that closing the meeting had been unlawful under North Carolina law.

On January 7, 2004, Plaintiff filed suit against Defendants Jefferies, Noble, High, Russell, Hash, Rustin, Johnson, Bassinger, Bass, the Town of East Spencer, and Officer John Doe # 1.2 On February 26, 2004, Plaintiff filed an amended complaint, adding as defendants Officers Schmierer, Hooks, Dearth, and Alley. The latter four defendants were not served process at that time.

On March 14, 2004, Defendants filed a motion to dismiss for failure to state a claim as to all defendants, and a motion to dismiss for lack of personal jurisdiction, insufficiency of process, and insufficiency of service of process as to Defendants Bassinger, Schmierer, Hooks, Dearth, and Alley. In response to the motion to dismiss for failure to state a claim, Plaintiff sought the permission of the court to file a second amended complaint. Plaintiff has also requested an extension of time to serve process on certain specified defendants.

II. Defendants' Motions to Dismiss

Defendants have made motions to dismiss under Federal Rule of Civil Procedure 12(b)(6) and Rules 12(b)(2), (4), and (5). They seek dismissal of Plaintiff's claims under Fed.R.Civ.P. 12(b)(6) on a number of grounds. First, the Aldermen, along with Defendant Russell, claim absolute immunity from suit under § 1983 on the basis that, at the time of the events giving rise to the complaint, they were participating in a legislative activity. Second, the officers claim qualified immunity from suit under § 1983 based on their status as public officials. Third, as a defendant in its own capacity, the Town of East Spencer seeks dismissal on the grounds that the complaint does not state a claim against it. Fourth, all defendants assert that Plaintiff's allegations regarding violations of the Equal Protection Clause fail to state a claim on which relief can be granted. Fifth, all defendants seek to have the state law claims against them dismissed on the following grounds: (1) the court should not retain jurisdiction over those claims if it grants Defendants' motion as to the federal claims, (2) North Carolina does not recognize claims directly under its constitution against individual defendants, and (3) Defendants are entitled to public official immunity under state law. Sixth, Defendants request that the court abstain from deciding this case out of respect for the interest of the state of North Carolina in the matter. Finally, Defendants Bassinger, Schmierer, Hooks, Dearth, and Alley seek dismissal under Rules 12(b)(2), (4), and (5) on the grounds that they have not been served with process.

A. Defendants' Motion Under Rule 12(b)(6)

A defendant's motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure tests the legal sufficiency of the pleadings, but does not seek to resolve disputes surrounding the facts. Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir.1992). A court must determine only if the challenged pleading fails to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). The issue is not whether the plaintiff will ultimately prevail on his claim, but whether he is entitled to offer evidence to support the claim. Revene v. Charles County Comm'rs, 882 F.2d 870, 872 (4th Cir.1989). A pleading "should not...

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