Opinion
4:98CV233-T
May 14, 1999
MEMORANDUM AND RECOMMENDATION
THIS MATTER is before the court upon defendants' motions to dismiss and Motion for Sanctions. After the matters were fully briefed, a hearing was conducted on April 20, 1999, in Asheville, at which counsel for plaintiffs failed to appear. For the reasons discussed below, the undersigned will recommend that the Motions for Sanctions be granted and that this action be dismissed in its entirety with prejudice as untimely filed and for failure to state a cause of action upon which relief could be granted.
I. The Conduct of Counsel for Plaintiffs and His Failure to Appear
On March 17, 1999, this court considered a motion by plaintiffs to enlarge the time to respond to defendants' dispositive motions. For cause, plaintiffs' counsel, Michael Lee King, contended that he never received pleadings from defendants and never received orders from this court. Rather than require Mr. King to drive to the courthouse to pick up orders and pleadings, the court directed that all correspondence from defendants or the court would be by way of certified mail with the costs assessed to counsel for plaintiff at the termination of this litigation.
This court was mistaken in its belief that certified mail would remedy the problem. That measure had little impact on plaintiffs' counsel because he failed to pick up certified mail that was sent by this court to his post office box, and intervention by court personnel with postal authorities was again required to determine whether plaintiff had signed for and picked up his mail.
While requiring service by certified mail, the court allowed plaintiffs until March 22, 1999, to respond to defendants' motions to dismiss and the Motion for Sanctions. On March 23, 1999, plaintiffs filed their response to the motion for sanctions. Despite the deadlines, plaintiffs filed on March 25, 1999, a Motion to Amend Complaint and a proposed Amended Complaint and filed on March 26, 1999, their response to defendants' motions to dismiss — 4 days out of time and without requesting leave of court as required by Rule 6(b), Federal Rules of Civil Procedure.
Even though counsel for plaintiffs disregarded this court's Order, plaintiffs were allowed to file their Amended Complaint. In order to afford the plaintiffs every opportunity to explain why this action is not time barred and argue why their claim, which appears to be frivolous on its face, should be allowed to go forward, this court scheduled a hearing for April 20, 1999, in Asheville.
At 8 a.m. on the morning of the hearing scheduled for 11 a.m., and with defense counsel coming from as far away as Charlotte, counsel for plaintiffs phoned the Clerk of this court and announced that he would not appear because of a hearing in an unspecified state "trial" in Cumberland County at 9 a.m. that same day. Counsel for plaintiffs left six different messages with the Clerk of this court, none of which either sought permission for the absence or advised this court of the name and nature of the conflicting case or the judge in whose court he was appearing. No telephone number for the state court was provided. After much time was spent by this court's staff (and the staff of the state Trial Court Administrator, the state District Attorney, state Clerk of Court, the secretary to the state Superior Court Judge, and the secretary for the District Court Judges in Cumberland County, all assisting in the attempt to find Mr. King), counsel for plaintiffs was finally tracked down. Honorable C. E. Donaldson, North Carolina District Court Judge, informed this court, upon inquiry, that counsel for plaintiffs was scheduled to appear in his court at 9:30 a.m., but had failed to appear. In addition, Judge Donaldson informed this court that the reason that the hearing on motions in a domestic matter had run long the day before was not attributable to opposing counsel (as counsel for plaintiffs herein had indicated to this court via his phone messages), but due to counsel for plaintiffs herein having only requested three hours for a hearing and then calling nine witnesses. Due to the tardiness of counsel for plaintiffs in Cumberland County (he showed up several hours late), Judge Donaldson imposed a $300 sanction against him.
At the time of the hearing in this case, the court had received no motion to continue, no notification in accordance with the "Guidelines For Resolving Scheduling Conflicts," and counsel for the county defendants (who was also not notified) had traveled to Asheville and appeared in accordance with the notice. The court proceeded with the hearing.
At the beginning of the hearing, the court electronically transferred counsel for plaintiffs' six voice messages to the electronic record. The deputy clerk to whom the calls were directed and who had very properly handled the certified mail issues was sworn and voir dire was conducted by the court. At the conclusion of such voir dire, it was clear to the court that counsel for plaintiffs had consistently neglected his obligations as an officer of this court, ignored court orders, foregone his obligation to his clients in this matter, and failed in the most fundamental obligation of every officer of this court to avoid the incurrence of unnecessary costs, expenses, and delay.
On May 6, 1999, a hearing was conducted on the issue of whether Mr. King should be certified to the district court as being in civil contempt. Mr. King's Motion for Continuance of that hearing, which was handed to the court after the hearing had started, was denied. Mr. King was afforded an opportunity to present evidence and arguments as to why civil contempt should not be certified. At the end of the evidentiary hearing the court concluded that counsel's failure to appear was occasioned by (1) failure to promptly pick up certified mail from this court and (2) failure to timely or properly notify the state court or this court of a possible scheduling conflict.
As to the first finding, this court sent Mr. King notice of the April 20, 1999, hearing via certified mail on April 6, 1999. Mr. King failed to sign for this mail until April 15, 1999. According to the green card returned by the United States Postal Service showing a return to this court the following day, the mail takes about one day to run between Asheville and Salisbury. Counsel let his certified mail from this court sit for eight days — days in which he could have made some effort to inform the court of the potential conflict.
As to the second finding, motions to continue a hearing must be made well in advance of the hearing except in the case of an emergency involving the health of counsel or a close family member. Telephone calls on the morning of the hearing, made before posted business hours, and with opposing counsel traveling several hours, are not sufficient. Compounding the problem was counsel's failure to provide the court with vital information concerning the conflict: the name and docket number of the state case, the presiding judge, and a contact number. Mr. King's statement that he was in court in Cumberland County was simply insufficient.
Despite these amazing lapses in judgment from an attorney who has been admitted to the Bar of this court since 1986, the court finds that Mr. King's conduct was neither willful nor malicious. Inasmuch as he an his client(s) are likely subject to the full range of sanctions under Rule 11 for filing a patently frivolous lawsuit, the court finds that further imposition of costs would not be appropriate. Instead, the court will reprimand counsel for professional conduct unbefitting a member of the Bar of this court based on his having failed to timely review official mail from this court and failed to notify the court of a scheduling conflict. This court is genuinely concerned with Mr. King's professional well being and hopes that this incident serves as a wake-up call.
As to the Rule 11 motion(s) of record, it appears for the reasons discussed below that this action was not warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law, or the establishment of new law. Beyond not finding a basis in law, a cold reading of the spurious allegations of the complaint reveal that while Mr. King has made any number of allegations which impugn the character of many defendants, he has not alleged any specific facts supporting those claims. It appearing tha counsel for defendants provided Mr. King with an opportunity to correct the public record, i.e., a "safe harbor," and that he failed to do so, the undersigned will recommend that the district court, in its sound discretion, consider the imposition of sanctions under Rule 11.
II. Substantive Issues
A. Defendants Motions to Dismiss
1. Standard
Defendants have moved for dismissal pursuant to Rule 12(b), Federal Rules of Civil Procedure, contending that plaintiffs have failed to state a cognizable claim and that this court lacks jurisdiction to hear the claims because they are time barred. Rule 12(b) authorizes dismissal based upon a dispositive issue of law. Neitzke v. Williams, 490 U.S. 319, 109 S.Ct. 1827, 1832 (1989); Hishon v. King Spalding, 467 U.S. 69, 73 (1984); Conley v. Gibson, 355 U.S. 41 (1957). As the Court discussed inNeitzke:
This procedure [for dismissal], operating on the assumption that the factual allegations in the complaint are true, streamlines litigation by dispensing with needless discovery and fact finding. Nothing in Rule 12(b)(6) confines its sweep to claims of law which are obviously insupportable. On the contrary, if as a matter of law "it is clear that no relief could be granted under any set of facts . . . a claim must be dismissed, without regard to whether it is based on outlandish legal theory. . . . What Rule 12(b)(6) does not countenance are dismissals based on a judge's disbelief of a complaint's factual allegations."Id., at 1832 (citation omitted). For the limited purpose of making a recommendation as to disposition of defendants' motions to dismiss, the undersigned has accepted as true the facts alleged by plaintiffs in the Amended Complaint and viewed them in a light most favorable to plaintiffs.
2. Background
The facts of this case are relatively clear and simple. On September 15, 1991, plaintiffs' decedent, a pedestrian, was tragically killed when struck by a Rutherford County Sheriff's Department vehicle being driven by Deputy Sheriff Floyd Laughter. At the time of her demise, the decedent was attempting to cross U.S. Highway 74 at 1:30 a.m., not at a corner, but through the median which divided the eastbound and westbound lanes of the federal highway. The police report, referenced by plaintiffs in their amended complaint, indicates that the posted speed limit on that divided highway was 35 miles per hour and that the deputy was proceeding at the posted limit when the patrol vehicle struck decedent.
Plaintiffs allege that the police report was incorrect and base that allegation on a report created seven years later by an independent traffic accident investigator. The key factual basis of that report is that the lighting, in 1998, was excellent and that a person could have seen the decedent, even in dark clothes, from several hundred feet away, without burning headlamps, and could have avoided the accident. There is no statement in the report submitted by plaintiffs that those artificial lighting devices in place in 1998 when the private investigator visited the scene were also in place in 1991. Plaintiffs also attempt to paint the deputy driving the vehicle as an habitual drunk with a bad driving record. Even though plaintiffs were allowed to amend the complaint, they did not supplement their conclusory statement with any factual allegations concerning the driver. Finally, there is no contention by plaintiffs or the accident investigator that the death of the decedent was anything other than a simple motor vehicle accident.
Because the accident involving the county deputy occurred within the corporate limits of the Town of Forest City, a city police officer was dispatched to do an accident report that night. As plaintiffs mention in the complaint, an accident report was duly filed with the North Carolina Department of Motor Vehicles as a public record by the investigating officer, and it appears from the face of such record to have been filed on September 25, 1999— 10 days after the accident.
Although plaintiffs were concerned that their decedent's death was not based on her own negligence, but on the negligence of the deputy, they did not contact an attorney. Instead, they contacted the local chapter of the NAACP, which sent representatives to meet with local police officials. It is plaintiffs' contention that those representatives were told by the Forest City Chief of Police that no police report existed and that a black officer was investigating the matter. Relying upon those representations, they contend, plaintiffs failed to file an action within the two-year limitations period for wrongful death. They further contend that such alleged misrepresentations to members of the NAACP should be a basis for the equitable tolling of the limitations period. Plaintiffs point to their own failure to file as evidence of a conspiracy by defendants to deprive them of their constitutional right to access the courts. No allegation is made that any public official misled them as to applicable limitations period or in any way told them that they could not file a civil action or seek the advice of an attorney.
More than seven years after the death of their decedent, plaintiffs have attempted to assert claims under Sections 1983, 1985, and 1986 of Title 42 of the United States Code for denial of access to the courts and civil conspiracy, mirror claims under the North Carolina Constitution, and a supplemental common-law claim for wrongful death.
3. Statute of Limitations
Plaintiffs assert that their non-attorney representatives — members of the local chapter of the NAACP — were misled in 1991 by the Chief of Police of Forest City as to the existence of a police report and as to the race of the officer who conducted the investigation of the accident. Based upon such alleged misrepresentations, plaintiffs argue that they are entitled to equitable tolling and, therefore, that their 1998 film of this federal action is timely. The court has assumed that the statute of limitations for filing a Title 42 action is the same as for the underlying state tort and that the limitations period for a Title 42 conspiracy claim commences when the existence of the conspiracy was either discovered or should have been discovered. Equitable tolling is available in limited circumstances.
Traditionally, the doctrine of equitable tolling has been applied sparingly...and we have previously stated that the doctrine should be limited to circumstances in which a defendant has wrongfully acted to prevent a plaintiff from discovering the existence a cause of action.Follin v. Safeway, Inc., 166 F.3d 332 (up), 1998 WL 808374, 2 (4th Cir. 1998) (citation omitted).
To invoke equitable tolling, the plaintiff must. . . show that the defendant attempted to mislead him and that the plaintiff reasonably relied on the misrepresentation by neglecting to file a timely charge."English v. Pabst Brewing Co., 828 F.2d 1047, 1049 (4th Cir. 1987).
In accordance with Rule 12, the court has construed plaintiffs' allegations of misrepresentations as true for the limited purpose of making a recommendation as to disposition of the pending motions to dismiss. The mere presence of a misrepresentation, however, does not invoke equitable tolling. The inquiry under Follin is whether public officials "wrongfully acted [through misrepresentations] to prevent a plaintiff from discovering the existence of a cause of action" (emphasis added); under English, it is whether plaintiffs "reasonably relied' upon those alleged misrepresentations to their legal detriment.
Assuming, as this court must on a Rule 12 motion, that misrepresentations were made as alleged, there is no allegation that those misrepresentations prevented plaintiffs from "discovering the existence of a cause of action." Plaintiffs patently knew of the cause of action for wrongful death before the alleged misrepresentations occurred when they contacted the local chapter of the NAACP to meet with police officials
Equitable tolling is an exercise in judicial discretion. In this case, plaintiffs have asked the court to grant this extraordinary relief based upon defendants' alleged failure to fulfill a promise of having a black officer conduct an investigation and a "misrepresentation" that an accident report did not exist. The questions this court must ask are whether these alleged acts prevented plaintiffs from discovering a cause of action, whether it was reasonable for plaintiffs to forego their legal rights based upon such alleged misrepresentations, and whether plaintiffs, if allowed to proceed, have a viable cause of action.
Foremost, neither the alleged failure of public officials to fulfill a promise to have a black officer investigate the accident nor the alleged failure to provide the accident report prevented plaintiffs from discovering their cause of action. As previously discussed, they disbelieved the official determination of the decedent's negligence from the outset. Failure of public officials to follow through on promises can only provide a reasonable person with more impetus to file a lawsuit, not forego taking action for seven years. As to the accident report, it is a matter of record that the report was filed with the Department of Motor Vehicles 10 days after the accident. Clearly, the document could have been discovered, and a good-faith argument cannot be made that the report has been concealed. Indeed, review of the accident report would provide no plausible reason for its concealment, because it simply shows that a motor vehicle struck a pedestrian who was unlawfully crossing a four-lane highway at 1:30 a.m., in dark clothes, and that the vehicle was proceeding at a lawful speed and the driver was not impaired. Finally, there are no allegations of record that would support plaintiffs' conspiracy theory or underlying claim of negligence. The report of the private accident investigator is fatally flawed in that it does not describe the on-the-ground conditions as being substantially the same in 1998 as they were in 1991. The apparent assumption in the report that artificial lighting in 1998 was the same as it was in 1991 appears to be the linchpin to the private investigator's determination that the accident was avoidable. The court can find no reason to exercise its discretion to afford the equitable relief sought in these circumstances.
The facts giving rise to a cause of action — the death of a pedestrian when struck by a motor vehicle — were at all times known to plaintiffs. Indeed, it appears that plaintiffs believed that such death was wrongful before the meeting and nothing said at the meeting changed that view. There is no allegation that defendants misled plaintiffs as to any substantive matter, such as their constitutional right to file an action, the time for doing so, or their right to speak to an attorney.
The genesis of this action is apparent in the amended complaint, at paragraph 42(l) of which plaintiffs allege, as follows:
[W]ithout the request or knowledge of the plaintiffs a third party [whom the court assumes to be counsel for plaintiffs herein] heard of the events that occurred on September 15, 1991; independently began investigating the matters; hired experts in the field of Traffic Accident Investigation and Reconstruction . ." and concluded that a civil conspiracy had been forged to deny plaintiffs of their right to access the courts.
Under Follin, the focus is upon what barriers defendants placed to prevent plaintiffs from discovering the existence of a cause of action. In a traffic accident, even with a police officer, the cause of action is self-evident, and the phone book is filled with attorneys who will line up at the plaintiffs' home to review a wrongful- death case. As the plaintiffs make clear in their Amended Complaint, they were aware within days of the accident that a claim may have existed, and rather than call an attorney (who is the only person under North Carolina law who can lawfully represent the legal interests of another), plaintiffs brought in representatives from the NAACP to discuss the death of the decedent with public officials.
Finally, under the analysis prescribed by English, it would not be reasonable for the administrator of an estate to forego a wrongful-death action based upon the alleged misrepresentations asserted in this case. The undersigned will recommend that all claims asserted in the complaint be dismissed with prejudice as barred by the applicable limitations periods.
4. Conspiracy: Failure to State a Claim
Plaintiffs contend that defendants conspired with each other to cover up the deputy's alleged negligence, thereby depriving plaintiffs of their right under the first amendment to access the courts. Plaintiffs argue that the statute of limitations for such federal claim did not begin to run until they received the report from the private investigator which supposedly calls into question the police report filed seven years earlier. As discussed above, the statute of limitations bars this claim. Why the task of conducting an independent investigation was not undertaken earlier is not explained by counsel for plaintiffs. Plaintiffs have, however, asserted that this cover-up conspiracy violated Sections 1983, 1985, and 1986 of Title 42.
a. Negligence is Not Actionable Under Section 1983
In Temkin v. Frederick County Com'rs, 945 F.2d 716 (4th Cir. 1991)' the Court of Appeals for the Fourth Circuit adopted a "shocks-the-conscience" test to determine if negligence of public officials could rise to the level of a constitutional tort. Temkin and the litany of cases that preceded it were brought on by the growing number of instances where innocent bystanders were being killed or injured during police chases. The Temkin court held, as follows:
[C]onduct which "shocks the conscience," or conduct which "amount[s] to a brutal and inhumane abuse of official power literally shocking to the conscience," violates the substantive guarantees of the Due Process Clause independent of the absence or presence of post-deprivation remedies available through state tort law.
Thus, the question squarely before us is whether Deputy Selby's or the Commissioners' conduct in the instant case so shocks the conscience as to constitute an abuse of governmental power violative of Sharon Temkin's constitutional liberty interests despite the existence of state tort laws under which that conduct is otherwise clearly actionable.Id., at 720 (citations and footnotes omitted). Putting aside plaintiffs' conspiracy theory for this analysis, the death of a pedestrian, clad in dark clothing and unlawfully crossing a four-lane divided federal highway at 1:30 a.m., who was struck by a vehicle operated at an alleged-to-be lawful speed does not, however tragic, "shock the conscience.
b. Section 1983 Conspiracy
Plaintiffs' conspiracy theory is that defendants conspired to violate their civil rights by covering up the tortious nature of Defendant Laughter's actions on the night in question. The grounds for this conclusion are (1) a report generated by a private investigator hired seven years after the accident and (2) the fact that the decedent was black and the deputy driving the patrol car was white.
To state a conspiracy claim under Section 1983, it has long been held that a plaintiff must make something more than a naked assertion of conspiracy. Phillips v. Mashburn, 746 F.2d 782 (11th Cir. 1984). A discussed above, plaintiffs have absolutely no evidence of conspiracy, only their own speculation, which is, by definition, a "naked assertion" of conspiracy. In fact, plaintiffs' whole case is thinly hinged on an accident investigator's report of less than two pages that simply disputes the findings of the investigating officer and does so without explaining such basic things as whether the lighting, which appears to play the key role in his conclusion, was the same in 1998 as it was at the time of the accident in 1991. On top of all this, plaintiffs have cited no evidence of fabrication, collusion, or overt acts; have failed to allege what motivation these supposed conspirators would have to conceal a report that vindicates their actions; or even attempted to allege how the public filing of a report within days of the accident could be "concealment."
Beyond the requirement of properly alleging a conspiracy, a plaintiff must further allege that the purpose of the conspiracy was to deprive the plaintiff of some constitutional right and that an actual deprivation resulted.
To prove a conspiracy under Section 1983, "it is necessary that there have been, besides the agreement, an actual deprivation of a right secured by the Constitution and laws. "Mere proof of a conspiracy is insufficient to establish a section 1983 claim.'"Ritchie v. Jackson, 98 F.3d 1335 (up), 1996 WL 585152, at 2 (4th Cir. 1996) (citation omitted). In this case, plaintiffs contend that the alleged deprivation was of their right under the first amendment to access the courts which plaintiffs argue was contingent upon receipt of the police report. Similar theories have been soundly rejected by other federal courts in this state.
The very fact that they were able to institute this suit goes a long way toward proving that the conspiracy to prevent them from obtaining legal redress was unsuccessful, if indeed there was such a conspiracy. The plaintiffs, of course, were not entitled to have the defendants [police authorities] do investigatory work for them, nor to have the defendants notify them of the existence of a cause of action. Only affirmative acts of cover-up would be unlawful.Waller v. Butkovich, 584 F. Supp. 909, 941 (M.D.N.C. 1984). It simply is not unlawful or evidence of a conspiracy for public officials to maintain that a traffic accident was not their fault. Our whole adversary system of justice is based upon the premise of presumed innocence. To hold otherwise would be to require public officials to fall on their swords every time they committed (or someone believed they committed) an act of negligence. Beyond allegations based upon speculation, no fact has been alleged that would somehow convert this traffic accident into a civil conspiracy under Section 1983.
c. Section 1985 and Section 1986 Conspiracy
Plaintiffs have also attempted to assert a cause of action for civil conspiracy under Sections 1985 and 1986. In addition to the elements of a Section 1983 conspiracy, a claim under the second clause of Section 1985(2) must have racial animus as an essential element. Here, the only allegation is that the officer was white and the decedent was black and, in similar fashion to the conclusory allegations of conspiracy and cover up, plaintiffs allege that race was the motivation for withholding the report.
Again, plaintiffs' case is based upon speculation. There are no factual allegations pleaded that support race as a motivating factor; indeed, plaintiffs have assumed that because the officer was white, he must have been motivated by the race of plaintiffs' decedent. It is just such race-based presumptions (that a person will act in a certain way based on the color of a person's skin) that the Civil Rights Act was designed to eliminate.
There being no cognizable allegation as to the essential element of racial animus, the Section 1985 claim must be dismissed under Rule 12(b)(6) for failure to state a cause of action. Because a conspiracy claim under Section 1986 is only viable where there exists a proper Section 1985 claim, plaintiffs' Section 1986 claim should also be dismissed.
d. Supplemental Claims
Having found that equitable tolling is not available to plaintiffs on any of their federal claims, the undersigned will recommend that plaintiffs' supplemental claims for wrongful death under state law be dismissed with prejudice as time barred.
e. Improper Plaintiffs
Under North Carolina law, the only proper party to this action is Lula Wilkins, as administrator of the Estate of Sandra Marie Wilkins. The estate administrator is also the only proper party to the Title 42 actions, which are derivative of the wrongful death cause of action under North Carolina law and which would have enured to the benefit of the estate. All plaintiffs other than the estate administrator should be dismissed as improperly joined.
f. Qualified Immunity
Inasmuch as plaintiffs' claims are without merit, the need to address defendants' motions to dismiss on the issue of qualified immunity is minimal. It appears, however, that the individual defendants are entitled to qualified immunity from plaintiff's claims made against them in their individual capacities because objectively reasonable officers or public officials possessing identical information reasonably would have believed their conduct was lawful. Even if these officers' purported conduct had violated a clearly established rule of law, which it did not, they would still be entitled to immunity if they reasonably believed that their conduct was lawful. Anderson v. Creighton, 483 U.S. 635, 638 (1987). See also Malley v. Briggs, 475 U.S. 335 (1986).
Public officials are free from liability for monetary damages if they can plead and prove that their conduct did not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 800, 815-16 (1982). In Mitchell v. Forsyth, 472 U.S. 511 (1985), the Supreme Court held that qualified immunity is "immunity from suit rather than a mere defense to liability; and like an absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial" Id., at 526. Qualified immunity is a question of law. Adams v. St. Lucie County Sheriff's Dep't, 962 F.2d 1563, 1566-67 (11th Cir. 1992).
When a defendant moves to dismiss on the ground of qualified immunity, the court "considers in the light most favorable to the plaintiff all facts fairly inferable from the record — regardless of the existence of factual disputes — and decides whether, under those facts, defendant's conduct violated law clearly established at the time."Bennett v. Parker, 898 F.2d 1530, n. 2 (11th Cir. 1990). A plaintiff must produce evidence sufficient to create a genuine issue as to whether a defendant committed the acts alleged. As a matter of law those acts must be sufficient to generate liability under the Constitution. All inferences, including credibility of an affiant, are drawn in favor of a plaintiff for qualified-immunity purposes. Gordon v. Kidd, 971 F.2d 1087, 1093-94 (4th Cir. 1992).
If it is undisputed that the right allegedly violated was clearly established at the time, the defendant asserting a qualified-immunity defense may still be immune from damages for violation of that right if, under the circumstances, a reasonable officer could have believed that his particular conduct was lawful. A court must make an objective, although fact-specific, inquiry into the legal reasonableness of the conduct. Anderson v. Creighton, supra, at 641. The lawfulness of the action must be apparent when assessed from the perspective of an objectively reasonable officer charged with knowledge of established law; a defendant's motives are irrelevant to the qualified-immunity inquiry. Id. Inasmuch as there are no allegations which would support a conclusion that the officers engaged in conduct prohibited by the Constitution, the undersigned must recommend that defendants' motions to dismiss based upon qualified immunity be granted to the individual defendants, including the Chief of Police of Forest City, to the extent they have been sued in their individual capacities.
RECOMMENDATION
IT IS, THEREFORE, RESPECTFULLY RECOMMENDED that defendants' motions to dismiss and Motion for Sanctions be ALLOWED, that the imposition of Rule 11 sanctions be considered by the district court, and that this action be DISMISSED with prejudice for all of the reasons discussed above.
The parties are hereby advised that, pursuant to 28, United States Code, Section 636(b)(1)(C), written objections to the findings of fact, conclusions of law, and recommendation contained herein must be filed within ten (10) days of service of same. Failure to file objections to this Memorandum and Recommendation with the district court will preclude the parties from raising such objections on appeal. Thomas v. Arn, 474 U.E 140 (1985), reh'g denied, 474 U.S. 1111 (1986); United States v. Schronce, 727 F.2d 91 (4th Cir.), cert. denied 467 U.S. 1208 (1984).
This Memorandum and Recommendation is entered in response to defendants' motions to dismiss (#s. 6, 8, and 22) and Motion for Sanctions (#10).
This 14th day of May, 1999.