Wilkersonv.Thrift

United States District Court, W.D. North CarolinaApr 6, 2000
1:99cv127-T (W.D.N.C. Apr. 6, 2000)

1:99cv127-T

April 6, 2000


MEMORANDUM AND RECOMMENDATION


Max O. Cogburn, Jr., U.S.M.J.

THIS MATTER is before the court upon the Motion to Dismiss filed by defendants City of Spindale, Chief Jack Conner, and T. Eugene Mitchell Motion; the Motion to Strike and Motion for Judgment on the Pleadings filed by defendant Christopher Justice; and the Motion to Dismiss filed by defendants C. D. Thrift and the City of Rutherfordton. Plaintiffs have filed timely responses to all motions, and a hearing was conducted on April 4, 2000, at which oral arguments were presented. Having fully considered all arguments, the undersigned enters the following findings, conclusions, and recommendations.

FINDINGS AND CONCLUSIONS

I. Background

This matter is a companion to Sterling Wilkerson v. Hester, 1:99cv130 (W.D.N.C. 1999), and Simmons v. Justice, 1:99cv141 (W.D.N.C. 1999), wherein plaintiffs have alleged that various members of law enforcement in Rutherford County, North Carolina, have intentionally infringed the constitutional rights of African-American citizens through use of excessive force in effecting arrests, and through conspiring to further violate such rights by knowingly covering up exculpatory evidence, thereby interfering with plaintiffs' federal constitutional rights to due process and a fair trial. Plaintiffs have asserted federal causes of action pursuant to 42, United States Code, Sections 1983, 1985(2), 1985 (3), and 1986, and supplemental state causes of action for violation of protections afforded plaintiffs under the North Carolina Constitution and the North Carolina common law.

As shown in plaintiffs' responsive brief, the version of the facts provided by defendants is markedly different from the version of the facts submitted by plaintiffs. When considering motions to dismiss under Rule 12, Federal Rules of Civil Procedure, this court must construe all facts alleged by plaintiffs in the wellpleaded complaint as true. Inasmuch as plaintiffs have not offered a concise statement of the facts in their responsive brief (having, instead, offered a line-byline rebuttal of facts alleged by defendants), the undersigned has drawn the following factual summary directly from the Amended Complaint.

Plaintiffs herein are African-Americans. They allege that all individual defendants herein are white.

The genesis of this case is found in a roadside stop of plaintiffs' son, near his mother-in-law's home, on July 4, 1996. That day, plaintiff Richard Wilkerson loaned his 1992 Chevrolet pickup truck to his son, Sterling. Later that day, Mr. Wilkerson received word that his son had been stopped by the police in Spindale, North Carolina, at which time Mr. and Mrs. Wilkerson got in their other car and drove to the scene. Mr. Wilkerson got out of the vehicle, saw his truck, but did not see his son, and asked defendant C. D. Thrift, a Rutherfordton police officer, where his son was. Defendant Thrift responded to Mr. Wilkerson by instructing him "not to come up here with a smart attitude," and never answered the question which Mr. Wilkerson posed.

At that point, Mr. Wilkerson walked to the cab of his truck and looked inside. Defendant Thrift then told Mr. Wilkerson not to get inside, drive, or touch the truck, and Mr. Wilkerson responded that he was the owner of the truck. Mr. Wilkerson left the truck at that time and proceeded to walk back to his other car.

Plaintiffs further allege that while Mr. Wilkerson was walking back to the car, Defendant Thrift, without warning or justification, grabbed Mr. Wilkerson's right arm, forced it behind his back, and broke it. After having broken Mr. Wilkerson's arm, Defendant Thrift then sprayed him in the face with pepper spray. Despite this treatment, Mr. Wilkerson rubbed his eyes with his left hand and apologized to Defendant Thrift, although he knew not what for. At this point, with Mr. Wilkerson's arm broken and his eyes burning from pepper spray, defendant Christopher Justice, a Spindale police officer, arrived on the scene with his police dog and commanded the dog to attack Mr. Wilkerson. The dog bit him on his leg, arm, face, and several times on the head.

Plaintiffs next allege that after the initial dog attack caused Mr. Wilkerson to fall to the ground, defendant Robert Baker, another Rutherfordton officer, handcuffed him. Even though Mr. Wilkerson was prone on the ground with his hands cuffed behind his back, defendants Justice (the dog handler), Thrift (the offlcer who had just broken Mr. Wilkerson's arm), and Baker (who had effected the arrest and, therefore, had custody of Mr. Wilkerson), allowed the dog attack to continue.

As to Mrs. Wilkerson, plaintiffs allege that she saw all these events, but in the end was also not immune from attack. Mrs. Wilkerson alleges that Defendant Thrift, without justification, hit her so hard that she hit and bounced off the pickup truck and stumbled into the roadway. Plaintiffs, however, have not alleged that Mrs. Wilkerson sustained any physical injuries.

After allegedly assaulting plaintiffs without provocation or just cause, defendants arrested them, placed them in jail, and charged them with a number of offenses. Mr. Wilkerson was charged by these defendants with resisting an officer, assault on an officer, resisting an officer, and assault on a government official; Mrs. Wilkerson was charged with disorderly conduct-public disturbance, assault on a government official, and inciting a riot. Plaintiffs allege that these criminal charges were pursued by defendants in an attempt to cover up their own wrongdoing.

Plaintiffs also allege that defendants Jack Conner, Spindale's Chief of Police, and T. Eugene Mitchell, Spindale City Attorney, conspired with one another and with the other defendants herein to further cover up the officers' alleged wrongdoing. It is also plaintiffs' contention that defendants Conner and Mitchell committed perjury in state district court by failing to disclose, when compelled to do so by court order, the facts concerning a prior incident where Defendant Justice allegedly commanded his dog to attack another person, in that case an African-American child on a bicycle. In addition, plaintiffs contend that the alleged facts forming the basis of such conspiracy were not uncovered until November 4, 1996, during a hearing at which such facts surfaced. A reasonable inference that can be gleaned from plaintiffs' complaint is that the object of such alleged conspiracy was to interfere with plaintiffs' rights to a fair trial and to seek redress for grievances by securing convictions that would purportedly stand in bar to civil liability.

In state district court, plaintiffs were convicted of all charges, except assaults on government officials. On appeal to state superior court, defendants were acquitted by a jury on all charges upon which the state district court convicted.

II. Standards Applicable to Motions to Dismiss and Motions for Judgment on the Pleadings

Defendants have moved for dismissal pursuant to Rule 12(b), Federal Rules of Civil Procedure, contending that plaintiffs have failed to state cognizable claims. 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. Kina Spalding, 467 U.S. 69, 73 (1984);Conley v. Gibson, 355 U.S. 41 (1957). As the Court discussed in Neitzke:
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, 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.

A motion for judgment on the pleadings is appropriate where ultimate facts are not in dispute. A.S. Abell Co. v. Baltimore Typograhical Union Co., 338 F.2d 190, 193 (4th Cir. 1964). Under Rule 12(c), Federal Rules of Civil Procedure, judgment on the pleadings should be entered where it is apparent that there are no issues of material fact and that only questions of law exist. Moreno v. University of Maryland, 420 F. Supp. 541 (D.Md. 1970), aff'd 556 F.2d 573 (4th Cir. 1977). Where there are no factual issues, judgment on the pleadings should be granted where the moving party clearly is entitled to the judgment it seeks as a matter of law. Jadoff v. Gleason, 140 F.R.D. 330, 331 (M.D.N.C. 1991). As will be discussed below, the Motion for Judgment on the Pleadings should not be granted because substantive issues of material fact abound in this case.

III. Discussion

A. Introduction

This case is not unlike the case which serves as its factual predicate, Sterling Wilkerson v. Hester, supra ("Hester"). As in Hester, where an officer allegedly broke Sterling Wilkerson's finger while effecting his arrest, allegations are made herein that officers broke Richard Wilkerson's arm, pepper-sprayed him, and commanded a police dog to attack him, in what plaintiffs claim was an exercise of excessive force. Likewise, Mrs. Wilkerson contends that officers, without provocation or just cause, hit her so hard as to bounce her off a truck and into a roadway.

In considering the issues herein, the court has considered and attempted to follow the reasoning of the district court in Hester and inSimmons.

B. C.D. Thrift's, Robert Baker's, and the City of Rutherfordton's Motion to Dismiss

Defendants Thrift, Baker, and the City of Rutherfordton have filed a joint Motion to Dismiss and supported such their motion with a memorandum of law. The undersigned will address each reason why these defendants contend that they are entitled to the relief they seek.

1. Motion to Dismiss Punitive Damages Claim

These defendants, collectively referred to as the Rutherfordton defendants, contend that public officials sued in their official capacities, as well as local government entities, such as cities and towns, cannot be held liable for punitive damages. In support of that contention, they cite Brandon v. Hope, 469 U.S. 464 (1985), and Angell v. Leslie, 832 F.2d 817 (4th Cir. 1987). A municipality is immune from punitive damages, City of Newport v. Fact Concerts, Inc., 453 U.S. 247 (1981); and punitive damages are not available against a person sued in his or her official capacity, Biggs v. Meadows, 66 F.3d 56, 61 (4th Cir. 1995), because an official-capacity suit is, eo nominee, a suit against a municipality. The undersigned, therefore, will recommend dismissal of plaintiffs' claim for punitive damages, to the extent that it may have been asserted against the municipal defendants or the individual defendants sued in their official capacities.

2. Individual Capacity

The Rutherfordton defendants next contend that all personal-capacity claims against them should be dismissed and stricken because the complaint does not mention any acts other than those performed in their official capacities. For purposes of brevity, the undersigned will assume that all individual defendants have joined in that argument.

Defendants cite no federal authority for their proposition, and the United States Supreme Court has held contrary to their argument. Liability under Section 1983 turns on the capacity in which the state actor is sued, not the capacity in which they acted when injuring plaintiffs. Hafer v. Melo, ___ U.S.___, 60 U.S.L.W. 4001 (U.S. 1991). The applicable test to determine whether a defendant has been sued in his or her individual capacity is provided in Castle v. Wolford, 165 F.3d 17 (table), 1998 WL 766724 (4th Cir. 1998), which provides, as follows:

[A] litigant need not expressly plead that state officials are being sued in their individual, rather than official, capacities. Rule 9 does not require that a § 1983 plaintiff expressly plead capacity, and it also prohibits courts from imposing a more stringent standard.
Under the standard adopted by this court, when a plaintiff does not allege capacity specifically, the Court "must examine the nature of the plaintiff's claims, the relief sought, and the course of proceedings to determine whether a state official is being sued in a personal capacity." One factor indicating that suit has been filed against a state official in a personal capacity might be the plaintiff's failure to allege that the defendant acted in accordance with a governmental policy or custom, or the lack of indicia of such a policy or custom on the face of the complaint. Another indicator that suit has been brought against a state actor personally may be a plaintiff's request for compensatory or punitive damages because such relief is not available in official-capacity suits. The underlying inquiry is whether the plaintiff's intention to hold a defendant personally liable can be ascertained fairly.

1998 WL, at 3 (citations omitted; emphasis added; copy placed in court record).

At the hearing, respective counsel argued whether the individual defendants had been sued in their individual capacities. Applying the reasoning of the appellate court in Castle to the allegations in the Amended Complaint, the undersigned finds that the plaintiffs have sued these individual defendants not only in their official capacities, but also in their individual capacities. That is indicated by the caption of the amended complaint (albeit imperfect), the allegations contained in the Amended Complaint specifying plaintiffs' intent to sue defendants individually as well as officially, and plaintiffs' inclusion of claims for punitive damages, which may only be asserted against state actors sued in their individual capacities. To the extent all defendants have challenged whether plaintiffs have alleged personalcapacity suits, the undersigned finds that they have and that the claims for punitive damages, while not applicable to municipalities and individuals sued in their official capacities, as the Rutherfordton defendants point out, are applicable to defendants sued in their individual capacities.

3. Qualified Immunity

As to the claims against them in their individual capacities, defendants Thrift and Baker next argue that this action should be dismissed because they are entitled to the protections of qualified immunity. Public officials, sued in their individual capacities, 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 the case is erroneously permitted to go to trial." Id. at 526. Qualified immunity is a question of law.

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, 483 U.S. 635, 641 (1987). 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.

Where a plaintiff alleges that a police officer has used excessive force in violation of the fourth amendment, the qualified-immunity inquiry is the same as the inquiry made on the merits. Hopkins v. Andaya, 958 F.2d 881, 885 n. 3 (9th Cir. 1992); Quezada v. County of Bernalillo, 944 F.2d 710, 718 (10th Cir. 1991); Dixon v. Richer, 922 F.2d 1456 (10th Cir. 1991). The court in Quezada explained, as follows:

While qualified immunity is a powerful defense in other contexts, in excessive force cases the substantive inquiry that decides whether the force exerted by police was so excessive that it violated the Fourth Amendment is the same inquiry that decides whether the qualified immunity defense is available to the government actor.

The "objective-reasonableness standard" flows from the analysis the Supreme Court applied in Tennessee v. Garner, 471 U.S. 1 (1985), wherein it held that use of deadly force by police to prevent the escape of an apparently unarmed suspected felon violated the fourth amendment.

The qualified-immunity test necessitates three discrete determinations under Collinson v. Gott, 895 F.2d 994, 998 (4th Cir. 1990). First, the court must identify the specific right allegedly violated (in this case, the fourth-amendment right to be free from the use of excessive force). Second, the court must determine whether that right was clearly established (in this case, it was). Third, the court must make the ultimate determination of whether a reasonable officer could have believed his conduct was lawful.

In a case originating in this district, White v. Leonhardt, 46 F.3d 1130 (table case), 1995 WL 26696 (4th Cir. 1995), the Court of Appeals held that, regardless of a plaintiff's version of events, the qualified-immunity inquiry may be made as early as the initial-pleading stage. It need not wait for resolution of issues of fact, because the standard is based upon the officer's perception, not the plaintiff's, and how a reasonable officer would respond in such circumstances.

Officer Leonhardt is entitled to immunity from liability for his use of force if a reasonable officer could have believed that White posed a threat of harm to others when Leonhardt fired. Plaintiff argues that there are various issues of disputed fact in this case that foreclose summary judgment on qualified immunity grounds.

***

Plaintiff's contentions misconceive the law of qualified immunity. The immunity inquiry depends on the reasonableness of the officer's perceptions, not the plaintiff's.
Id., 1995 WL, at 2 (citation omitted). In this case, the court presently has no basis for making the fact-specific inquiry, inasmuch as no affidavit from the officer(s) asserting the privilege has been provided setting forth their perceptions.

The burden is on the officer asserting qualified immunity to come forward. Once a plaintiff proves that the asserted right was clearly established, Clark v. Link, 855 F.2d 156 (4th Cir. 1988); the defense of qualified immunity is for the defendant to prove, not for the plaintiff to disprove, Gomez v. Toledo, 446 U.S. 635 (1980). While the undersigned will recommend that the Motion to Dismiss be denied without prejudice as to the claim of qualified immunity of the officer(s), and the substance of such claim can be reasserted "at any time," in accordance with Rule 56, Federal Rules of Civil Procedure.

4. Motions to Dismiss Pursuant to Rules 12(b)(1),(2), (6)

A. Plaintiffs' Claims Generally

The Rutherfordton defendants claim that because of plaintiffs' convictions in state district court for resisting arrest, their claims for false arrest, unconstitutional seizure, and malicious prosecution should be dismissed. In support, defendants contend that collateral estoppel prevents the relitigation of the issue of lawful arrest, which is an essential element of the civil claims asserted herein and of the criminal charges of resisting arrest upon which the state district court convicted. See Burton v. City of Durham, 118 N.C. App. 676, 680 (1995). Once the element is established through conviction, even a later acquittal will not destroy the preclusive effect, unless a plaintiff can establish that such conviction was procured with perjured testimony. Hill v. Winn-Dixie Charlotte. Inc, 100 N.C. App. 518 (1990). Plaintiffs have alleged that such convictions were obtained by means of perjury and have provided particulars of such alleged misconduct in their complaint and exhibits annexed thereto. Taking those allegations as true, as this court is compelled to do on a Rule 12 motion, the undersigned must recommend denial of the motion to dismiss based on these claims. As to plaintiffs' excessive force claims, "lawful arrest" is not an essential element of such claims and, logically, officers do not have carte blanche to use excessive force in effecting even a lawful arrest.

At the hearing, defendants argues that the allegations concerning Defendant Baker were not sufficient to state claims under Section 1983. The pertinent allegations of the complaint concerning Defendant Baker are that he effected Mr. Wilkerson's arrest by placing handcuffs on him, at which point Mr. Wilkerson was in his custody, but that he failed to take any steps to end the dog attack, even though Mr. Wilkerson was prone, on the ground, and unable to defend himself. The undersigned finds such allegations to suffice. See Hafner v. Brown, 983 F.2d 570 (4th Cir. 1992) (allegations of acquiescence by fellow officers who witnessed the beating of the arrestee sufficient to state Section 1983 cause of action). The undersigned, therefore, will recommend dismissal of the motion to dismiss as to this claim.

B. Mrs. Wilkerson's Excessive Force Claims

The Rutherfordton defendants argue that not every push or shove violates the fourth amendment. Read in a light most favorable to this plaintiff, she has alleged that, without provocation, she was hit a blow that resulted in her being bounced off the parked pickup truck and into the road. These are very serious allegations; however, Mrs. Wilkerson has not alleged that such assault resulted in any injury. Where there is no more than an allegation of de minimis injury, a plaintiff cannot state a claim for excessive force. Riley v. Dorton, 115 F.3d 1159 (4th Cir.),cert. denied, 533 U.S. 1030 (1997). To that end, the undersigned will recommend that Mrs. Wilkerson's claim for excessive force be dismissed.

5. Motion to Dismiss Supplemental State-Law Claims

a. State Constitutional Claims

The Rutherfordton defendants next argue that the court should also dismiss the supplemental state-law claims. For cause, these defendants argue that state constitutional claims are only viable where an adequate remedy is not available at common law. Here, the Rutherfordton defendants point to common-law claims for assault and battery (and the Spindale defendants point to more), which plaintiffs chose not to pursue. Plaintiffs have not challenged such argument in their response, which is contained in their Motion for Judgment by Default. Docket Entry 43. (Plaintiffs' response to the other defendants' motions is contained in a separate pleading.) It appearing that defendants' argument is consistent with current state law, see Corum v. University of North Carolina, 330 N.C. 761 (1992), the undersigned will recommend dismissal of plaintiffs' supplemental state constitutional claims as barred as a matter of well-settled state law.

b. State Common-Law Claim

Plaintiffs have also asserted a supplemental common-law claim for malicious prosecution. Defendants again argue that such claim should be dismissed because probable cause has been found as an essential element of the state district court convictions entered against each plaintiff. Again, plaintiffs have properly challenged their convictions in state district court as having been obtained fraudulently through use of perjured testimony. Based upon the reasoning of the district court inHester, the undersigned finds defendants' Motion to Dismiss such supplemental common-law claim to be without merit and will recommend that it be denied.

6. Conspiracy Claims

The Rutherfordton defendants next argue that plaintiffs' Section 1985/1986 conspiracy claims should be dismissed. Unlike the alleged conspiracy in Hester, which the district court found to be deficient to state a claim, plaintiffs have alleged herein that the individual defendants conspired to cover up the alleged wrongful conduct of July 4, 1996, by unlawfully concealing evidence that was subject to disclosure under a court order and which likely would have resulted in no convictions at the district-court level.

Had plaintiffs alleged a civil conspiracy claim under Section 1983 rather than Section 1985, it could have succeeded upon a mere showing of acquiescence by fellow officers who witnessed the beating of the arrestee. See Hafner v. Brown, 983 F.2d 570 (4th Cir. 1992).

The undersigned has read the district court's decision in Hester carefully and must find that these causes of action for conspiracy also do not meet the Section 1985 test provided in Simmons v. Poe, 47 F.3d 1370, 1376-77 (4th Cir. 1995). The only element that is deficient is that of racial animus, which cannot be assumed simply because the officers and other state actors were white and the alleged victims were African-Americans. While clearly an inference of racial animus can be found as to Defendant Justice's alleged misuse of his police dog on African-Americans through a pattern and practice (which is discussed more thoroughly infra), that inference does not necessarily transfer to the alleged conduct of others who are accused of attempting to cover up the alleged wrongful conduct

This element of "racial motivation" is hard to allege and is not met by the allegations of a conspiracy to deprive plaintiffs of their rights to due process and a fair trial. Instead, a reasonable inference which arises from the pleadings is that the object of the alleged conspiracy was to shelter the town and the officers from civil liability through perjury. The economic motivation alleged is not necessarily a racial one, and the mere dichotomy of race between plaintiffs and defendants is not sufficient to bridge that gap. In accordance with Simmons v. Justice, the undersigned will recommend that plaintiffs' conspiracy claims be dismissed without prejudice in the event additional information is uncovered in discovery that would justify reinstatement of those claims.

The elimination of the conspiracy claims would in no way impact plaintiffs' Section 1983 claims, some of which depend upon a finding that the district-court convictions were obtained by fraud. Such fraud may be shown without the necessity of pursuing separate conspiracy claims.

7. Claims Against the City of Rutherfordton

Plaintiffs have alleged that the actions of the City of Rutherfordton's officer, Defendant Thrift, are attributable to inadequate training, insufficient policies, and the practice of Rutherfordton. Similar allegations have been made against the Town of Spindale concerning the actions of its K-9 officer, Defendant Justice.

In response to Rutherfordton's argument, plaintiffs substantively argue that they "allege facts that sufficiently covers the principal theory necessary for liability to attach to the City of Rutherfordton," and cite paragraph 16 of their complaint. Plaintiffs make a similar argument in their separate brief responsive to the City of Spindale's motion, but point to paragraph 18 and the decision of the district court in Simmons v. Justice, supra, which found that a claim had been stated.

As to the City of Rutherfordton, plaintiffs have made a number of very broad allegations, but have not alleged what training, policies, or practices were inadequate or that such inadequacy should b inferred from unfettered and unchecked misconduct by their police officers, Thrift and Baker. No allegation is made that defendants Thrift and Baker had committed similar acts in the past or that Rutherfordton had notice of any such misconduct.

As to the Town of Spindale, plaintiffs make similar allegations, but also provide the specificity missing as to Rutherfordton. In paragraph 18 (iv), plaintiffs contend that Spindale had been put on notice before July 4, 1996, of Defendant Justice's pattern and practice of misuse of his police dog against African-Americans and use of excessive force against law-abiding members of the public. In Simmons v. Justice, supra, the district court found similar allegations were sufficient to state a claim against the City of Spindale. (This case was cited by the court inSimmons as additional notice to the Town of Spindale).

Local governing bodies, such as counties, municipal corporations, and municipal officials sued in their official capacities, are "persons" that can be sued directly under Section 1983 for monetary, declaratory, or injunctive relief when alleged unconstitutional action executes a governmental policy or custom. Monell v. Department of Social Servs., 436 U.S. 658 (1978).

Two elements are required to establish municipal liability: (1) a plaintiff's harm was caused by a constitutional violation, and (2) the municipality is responsible for that violation. There is no requirement to prove an "abuse of governmental power" in order to state a claim.Collins v. City of Harker Heights, ___U.S.___, 60 U.S.L.W. 4182 (1992). A municipality is responsible only when the execution of the government's policy or custom, whether made by its lawmakers or by those whose acts may fairly be said to represent official policy, inflicts injury. Monell v. Department of Social Servs., supra, at 694; Spell v. McDaniel, 824 F.2d 1380 (4th Cir. 1987).

To avoid imposing vicarious municipal liability rejected by Monell, any theory of municipal liability must be carefully controlled at three critical points:

(1) identifying the specific policy or custom;

(2) fairly attributing the policy and the fault for its creation to the municipality; and
(3) finding the necessary affirmative link between identified policy or custom and the specific violation.
Spell v. McDaniel, supra, at 1389. Where a constitutional deprivation is not an official act of the municipality, the only recovery lies against the officer in his individual capacity. Hughes v. Blankenship, 672 F.2d 403, 405-06 (4th Cir. 1982). Deliberate indifference on the part of a city to a need for training may amount to a city policy or custom.City of Canton v. Harris, 489 U.S. 378 (1989). For liability to attach, the deficiency in training must actually have caused the officer's violation of the plaintiff's constitutional rights. Id., at 391. In addition, a municipality may be held liable where unconstitutional practices are part of the developed custom or usage and there is (1) actual or constructive knowledge of custom by policymakers and (2) failure as a matter of specific intent or deliberate indifference to correct the practice. Spell v. McDaniel, supra, at 1390-91; see Kopf v. Wing, 942 F.2d 265 (4th Cir. 1991), cert. denied, ___U.S.___, 60 U.S.L.W. 3578 (1992).

In this matter, plaintiffs have not made sufficient allegations that would support a claim of liability against the City of Rutherfordton. Plaintiffs, however, have alleged sufficient specific facts that tend to show that the Town of Spindale was on prior notice that Defendant Justice was abusing his office by unlawfully unleashing lethal force without just cause and took no steps to curtail such abuse. For these reasons, the undersigned will recommend dismissal of the City of Rutherfordton, but retention of the Town of Spindale due to allegations of (1) actual or constructive knowledge of custom by policymakers and (2) failure as matter of specific intent or deliberate indifference to correct the practice. Spell v. McDaniel, supra.

C. Christopher Justice's Motion for Judgment on the Pleadings

1. Introduction

As a procedural matter, Defendant Justice's Motion for Judgment on the Pleadings should be denied because, as discussed above in part II,supra, a motion for judgment on the pleadings is appropriate where ultimate facts are not in dispute. A. S. Abell Co. v. Baltimore Typographical Union Co., 338 F.2d 190, 193 (4th Cir. 1964). Judgment on the pleadings should only be entered where it is apparent that there are no issues of material fact and that only questions of law exist. Moreno v. University of Maryland, 420 F. Supp. 541 (D.Md. 1970), aff'd, 556 F.2d 573 (4th Cir. 1977). Based upon the facts as alleged in the complaint, Defendant Justice would be entitled to no relief as a matter of law.

2. Qualified Immunity

Defendant Justice's primary contention is that he is entitled to the protections of qualified immunity. Again, no affidavit has been filed by Defendant Justice indicating what he perceived. The undersigned has considered the determination of the district court in Simmons v. Justice, supra, wherein a similar claim of qualified immunity was made by Defendant Justice. As here, it was alleged in that case that Defendant Justice failed to issue a verbal warning before employing his police dog against an individual—in that case, a child.

Viewing Plaintiff's allegations in a light most favorable to him the conduct of the Defendant law enforcement officers was objectivly unreasonable and a violation of Omar Simmons' Fourth Amendment rights. These rights were clearly established in 1996 and a reasonable person in the officer's position should have known about them. Consequently, at this stage of the proceedings, Officers Justice and Connor do not have qualified immunity for their alleged actions.
Simmons v. Justice, supra, at 12. The undersigned can add little to such analysis. For the reasons discussed herein and the reasons more thoroughly discussed in Simmons v. Justice, the undersigned will recommend that Defendant Justice's Motion to Dismiss based on qualified immunity be denied.

3. Other Reasons Submitted for Dismissal

Defendant Justice also argues that the court should dismiss the federal claim of malicious prosecution, the federal claim of excessive force against Mrs. Wilkerson, the state constitutional claims, the state claims of malicious prosecution, and the conspiracy claims. For purposes of brevity, the undersigned hereby reincorporates its earlier findings and recommendations which recommend that such requests be denied in part and granted in part.

Neither the plaintiffs nor the defendants took the court's suggestion to file joint motions and briefs, which has created a morass of overlapping motions, arguments, and responses.

D. The Spindale Defendants' Motions to Dismiss

1. The Statute of Limitations

Defendants Conner and Mitchell first contend that the claims asserted against them must be dismissed as barred by the three-year period of limitations. While defendants correctly cite the applicable limitations period, the undersigned finds that the allegations of the complaint are sufficient to support a finding that the period did not commence, as to the alleged fraud, on the day of the alleged assaults, but on the day plaintiffs reasonably discovered the alleged fraud upon which their claims against these particular defendants are based, which was November 4, 1996, making their November 4, 1999, initial filing timely.

2. Defendants' Claim to Qualified Immunity

Defendants Mitchell and Conner also claim qualified immunity. Plaintiffs assert in their first cause of action that these defendants, in allegedly perjuring themselves and concealing court-ordered evidence, violated their due-process rights protected by Section 1983. The court cannot find any of the prongs of qualified immunity applicable to such alleged conduct, and no affidavit is submitted that would show conduct other than that alleged by plaintiffs.

Simply stated, qualified immunity is not available here because any reasonable public official, especially an attorney, would know that perjury and concealment of evidence was unlawful on the date these events allegedly occurred. As to the town's claim of qualified immunity, no case has been cited that a town is entitled to qualified immunity, which is a protection typically afforded officers sued in their individual capacities. Indeed, well-settled case law is contrary to the argument of these defendants. Municipal corporations are not entitled to qualified immunity, and towns may not rely upon the good faith of officers as a defense. Owen v. City of Independence, 445 U.S. 622 (1980); see Hummer v. Mayor of Ocean City, 632 F.2d 371 (4th Cir. 1980).

3. Town Attorney Not A Person Under Section 1983

Spindale defendants next contend that Mr. Mitchell is privately employed by the town to render legal advice. While town defendants have cited a number of cases which hold that appointed counsel and prosecutors are not liable under Section 1983, such defendants did not mention cases that hold that attorneys who allegedly conspire with state officials to violate constitutional rights act under color of state law. Tower v. Glover, 467 U.S. 914 (1984); Phillips v. Lashburn, 746 F.2d 782 (11th Cir. 1984). Here, plaintiffs have specifically alleged that Mr. Mitchell conspired with the Chief of Police to hide evidence and suborn perjury that, purportedly, was intended to deprive plaintiffs of their constitutional rights to due process. For these reasons, the undersigned will further recommend that Defendant Mitchell's motion to dismiss based on immunity be denied.

4. Probable Cause

Like the other defendants, Spindale defendants also claim that plaintiffs' Section 1983 claims should be dismissed based on the state district court's implicit finding of probable cause. As discussed above, such basis is without merit due to the allegations that such convictions were fraudulently secured. The undersigned reincorporates such discussion and recommendation.

5. Municipal Liability

In conjunction with the City of Rutherfordton's identical motion, this issue was discussed above. For the purposes of brevity, the undersigned reincorporates such discussion and ultimate recommendation that the Town of Spindale's motion be denied.

6. Section 1985/1986 Conspiracy Claims

As discussed above, the undersigned recommends dismissal of such claims based on insufficient allegations of racial animus.

7. State Constitutional claims

As discussed above, the undersigned recommends dismissal of such claims based on the presence of adequate state remedies.

8. Common-Law Claim for Malicious Prosecution

As discussed above, the undersigned recommends that such claim not be dismissed, inasmuch as plaintiffs have alleged that the underlying probable cause was founded upon fraud.

RECOMMENDATION

IT IS, THEREFORE, RESPECTFULLY RECOMMENDED that

(1) defendant Christopher Justice's Motion to Strike (#37), contained in his answer but not supported by a brief, be DENIED;
(2) defendants City of Spindale's, Jack Conner's, and T. Eugene Mitchell's Motion to Dismiss (#38) be GRANTED in part and DENIED in part, as more completely discussed above;
(3) defendants C. D. Thrift's, Robert Baker's, and the City of Rutherfordton's Motion to Dismiss (#39) be GRANTED in part and DENIED in part, as more completely discussed above;
(4) defendant City of Rutherfordton be DISMISSED from this action for the reasons discussed above; and
(5) defendant Christopher Justice's Motion for Judgment on the Pleadings (#46) be GRANTED in part and DENIED in part, as more completely 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.S. 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 defendant Christopher Justice's Motion to Strike (#37), defendants City of Spindale's, Jack Conner's, and T. Eugene Mitchell's Motion to Dismiss (#38), defendants C. D. Thrift's, Robert Baker's, and the City of Rutherfordton's Motion to Dismiss (#39), and defendant Christopher Justice's Motion for Judgment on the Pleadings (#46).

This 6th day of April, 2000.