Naef v. Cnty. of New Hanover
| Docket Number | 7:22-CV-179-D |
| Decision Date | 31 August 2023 |
| Parties | CHRISTIAN NAEF, Plaintiff, v. COUNTY OF NEW HANOVER; DR. LESHONDA WALLACE, individually and in her official capacity as Chair at Large of NEW HANOVER COUNTY HEALTH AND HUMAN SERVICES; EDWARD J. MCMAHON, individually and in his official capacity as SHERIFF OF NEW HANOVER COUNTY; KENNETH W. SARVIS, individually and in his official capacity as DEPUTY SHERIFF; E.D. LONG, individually and in his official capacity as DEPUTY SHERIFF; and JEFFREY ROHENA, individually and in his official capacity as DEPUTY SHERIFF, Defendants. |
| Court | U.S. District Court — Eastern District of North Carolina |
On October 21, 2022, Christian Naef (“Naef' or “plaintiff”), then proceeding pro se filed a motion to proceed in forma pauperis and proposed complaint asserting claims under 42 U.S.C. § 1983 [D.E 1]. On November 21, 2022, after the court denied Naef s application to proceed in forma pauperis [D.E. 4], Naef paid the filing fee. On January 30, 2023, defendants moved to dismiss the complaint for failure to state a claim upon which relief can be granted [D.E. 19] and filed a memorandum in support [D.E. 20]. See Fed.R.Civ.P 12(b)(6).[1] On March 27, 2023, Naef, now represented by counsel [D.E. 22], responded in opposition [D.E. 24]. On April 6, 2023, defendants replied [D.E. 26]. As explained below, the court grants in part the motion to dismiss, but allows Naef to file an amended complaint.
Naef is a citizen and resident of New Hanover County, North Carolina (“NHC”). See Compl. [D.E. 1-1] ¶ 1. Naef s complaint concerns a policy which required anyone attending a public 1 meeting in an NHC building to wear a face mask during the COVID-19 pandemic. See Id. at ¶¶ 6-7.; Defendant Wallace was an NHC employee and instrumental in “the formation of the policy enforcing the mask requirement in her official capacity as Chair at Large for NHC HHS.” Id. at ¶¶ 3, 8. Wallace also presided over several public hearings Naef attended, where she established and enforced “the level of decorum under which the hearings would proceed, and she alone decided if and when an individual attending a hearing would be removed and the reasons therefore.” Id. at ¶ 11. Naef alleges that Wallace “both personally and as Chair, favored the mask requirement in public buildings,” and allowed supporters of the mask requirement to exceed their allotted speaking time and not to wear a face mask properly at all times, while “repeatedly disfavor[ing]” opponents of the mask requirement “by instructing deputies to remove such individuals from the hearings for failure to wear a mask, failure to wear a mask in a manner she deemed proper, or for speaking beyond the time limits provided for comment.” Id. at ¶¶ 11-13, 16, 23, 25, 27.
Defendants Sarvis, Long, and Rohena are NHC deputy sheriffs, and defendant McMahon is the NHC Sheriff. See Id. at ¶¶ 4-5. McMahon “assigned or otherwise directed” Sarvis, Long, Rohena, and “other un-named Deputy Sheriffs” to provide security at the public hearings, and “instruct[ed] them to not allow any individual into the NHC HHS Building who was not wearing a mask, to remove (upon the instruction of defendant Wallace) those individuals attending the hearings whom she desired to be removed, and/or to remove any attendee who die deputies otherwise singled out for failure to either wear a mask or to wear a mask properly.” Id. at ¶ 9.
On August 31, 2021, Naef attended a public hearing at die NHC HHS building “regarding, among other things, die revision, implementation and enforcement of rules governing mask requirements in public buildings in New Hanover County.” Id. at ¶ 8. Naef “was clearly among those expressing opposition to die mask requirement.” Id. at ¶ 15. Naef was scheduled to speak at die hearing. “[W]ithout warning, defendant Wallace directed deputies to remove Mr. Naef from die hearing by saying, ‘Get that man out of here; his mask slipped below his nose.'” Id. at ¶¶ 16, 19. At Wallace's direction, “several un-named deputies seized him, pulled his arm violently and dragged him to die ground.” Id. at ¶17. Naef did not resist, but “the deputies pulled him up forcefully from die ground and roughly ushered him from die hearing, using excessive and unwarranted force, bruising plaintiff and injuring his shoulder in doing so.” Id. Naef alleges that Wallace “calculated” Naef s removal to prevent him from speaking, “in keeping with defendant Wallace's general policy in favor of die mask requirement and her general inclination against those in opposition to it.” Id. at ¶19.
On October 6, 2021, Naef was entering an NHC Board of Education public meeting when defendant Sarvis confronted Naef for not wearing a mask and told Naef “not to ‘make any trouble.'” Id. at ¶ 21. Before Naef could comply with die mask mandate, Sarvis “physically picked plaintiff up to the point that his feet were literally off die ground and carried him forcefully out of the building where die BOE hearing was being held, preventing plaintiff from attending it altogether, and making it clear in die process that defendant Sarvis disapproved of plaintiff's opposition to the mask requirement and that plaintiff was being prevented from attending die hearing because of his opposition to die mask requirement.” Id. at ¶ 22.
On November 12, 2021, Naef “spoke in opposition to the mask requirement” at an NHC HHS public hearing. Defendant Wallace instructed deputies to remove Naef for exceeding his allotted speaking time. Id. at ¶ 27. Wallace, however, did not tell deputies to remove “several other people who spoke in favor of the mask requirement” Id.
Id. at ¶28. Wallace filed a criminal complaint for trespass against Naef. See id. at ¶ 29. At Naef s trial, Rohena testified “that plaintiff was arrested to make an example of him.” Id. at ¶ 30. Ultimately, “the charge against plaintiff was dismissed ... on grounds that no warning had been given to plaintiff prior to his arrest that he was trespassing upon state property during a hearing at which he was scheduled to speak.” Id.
Count one of Naef s complaint asserts a claim under 42 U.S.C. § 1983 against Wallace for violating his First Amendment right to freedom of speech when she ordered him removed from the public hearings, and against NHC for failing to train Wallace and for acquiescing “to defendant Wallace's repeated violation of the constitutional rights of those opposing the mask requirement so often that they became emblematic or a reflection of its general policy.” Id. at ¶¶ 33-40. Count two asserts a claim under 42 U.S.C. § 1983 against Sarvis, Long, and Rohena for violating the Fourth Amendment by removing Naef from the October 6 and November 12 hearings and using excessive force in arresting him on November 12, 2021, and against Sheriff McMahon as their supervisor. See id. at ¶¶ 41-47. Counts three through five assert state-law claims for malicious prosecution, battery, and gross negligence against Sarvis, Long, and Rohena. See id. at ¶¶48-56. Naef seeks unspecified monetary damages, costs, and attorney's fees.
A motion to dismiss under Rule 12(b)(6) tests the complaint's legal and factual sufficiency. See Ashcroft v. Iqbal, 556 U.S. 662, 677-80 (2009); Bell Atl. Corp, v. Twombly, 550 U.S. 544, 554-63 (2007); Coleman v. Md. Ct. of Appeals, 626 F.3d 187, 190 (4th Cir. 2010), aff'd, 566 U.S. 30 (2012); Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008). To withstand a Rule 12(b)(6) motion, a pleading “must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 678 (quotation omitted); see Twombly, 550 U.S. at 570; Giarratano, 521 F.3d at 302. In considering the motion, the court must construe the facts and' reasonable inferences “in the light most favorable to [the nonmoving party].” Massey v. Ojaniit, 759 F.3d 343, 352 (4th Cir. 2014) (quotation omitted); see Clatterbuck v. City of Charlottesville, 708 F.3d 549, 557 (4th Cir. 2013), abrogated on other grounds by Reed v. Town of Gilbert, 576 U.S. 155 (2015). A court need not accept as true a complaint's legal conclusions, “unwarranted inferences, unreasonable conclusions, or arguments.” Giarratano, 521 F.3d at 302 (quotation omitted); see Iqbal, 556 U.S. at 678-79. Rather, a plaintiff s factual allegations must “nudge[] [his] claims,” Twombly, 550 U.S. at 570, beyond the realm of “mere possibility” into “plausibility.” Iqbal, 556 U.S. at 678-79.
The standard used to evaluate the sufficiency of the pleading is flexible, “and a pro se complaint, however inartfiilly pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam) (quotation omitted). Erickson, however, does not “undermine [the] requirement that a pleading contain ‘more than labels and conclusions.'” Giarratano, 521 F.3d at 304 n5 (quoting Twombly, 550 U.S. at 555); see Iqbal, 556 U.S. at 677-83; Coleman. 626 F.3d at 190; Nemet Chevrolet, Ltd, v. Consumera.ffairs.com, Inc., 591 F.3d 250, 255-56 (4th Cir. 2009); Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009).
When evaluating a motion to dismiss, a court considers the pleadings and any materials “attached or incorporated into the complaint.” E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d, 435, 448 (4th Cir. 2011); see Fed.R.Civ.P. 10(c); Goines v. Valley Cmty. Servs. Bd., 822 F.3d 159, 165-66 (4th Cir. 2016); ...
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