RICHARD L. VOORHEES, District Judge.
Walter Mark Houck (hereinafter, the "Decedent") lived in Ashe County, North Carolina on a fairly large piece of property with his wife, Ernestine Houck (hereinafter, the "Plaintiff" or "Mrs. Houck").
Because of his disabilities, the Decedent was unable to work. Id. at ¶ 9. His wife, the Plaintiff, in her representative capacity, maintained the household by working two jobs. During the day, Mrs. Houck worked in the cafeteria of a Tyson's poultry plant and, at night, she worked in the processing unit of the same plant. [Doc. No. 34] at ¶ 19. As a result of Mrs. Houck's schedule, the Decedent was frequently left alone at night. Id. at ¶ 20. While home alone, the Decedent would fire one of his two guns (either a shotgun or a rifle) on a regular basis. He exploited the gun's disquieting blast to frighten away animals whenever he let his dog out of the house. [Doc. No. 34] at ¶¶ 17-18.
On November 19, 2012, Decedent was home alone, had consumed alcohol, and was upset. [Doc. No. 34] at ¶ 21. At approximately 10:50 p.m., he discharged a shotgun twice from his front porch. Id. at ¶ 22. Defendant Howell, a detective with the Ashe County Sheriff's Office, heard these shots from his home, approximately 200 yards away from the Decedent. Id. at ¶¶ 5, 22-23. At approximately 11:00 p.m., Defendant Howell witnessed the Decedent discharge his shotgun four more times. Id. at ¶ 25. Thereafter, Defendant Howell telephoned the Ashe County dispatcher to report the Decedent's behavior. Id. at ¶ 26. He reported that the Decedent appeared to be discharging a weapon while intoxicated and requested that deputies respond in order to "check on" the Decedent. Id. at ¶ 26. Defendant Howell also requested that the authorities exercise caution while approaching the Decedent's residence. Id.
Defendant Deputy Hopkins, a deputy with the Ashe County Sheriff's Office, Officer Jake Howell (no relation to Defendant Detective Howell), an officer with the West Jefferson Police Department, and Deputy Jeremy Munday responded to Defendant Howell's complaint. See id. at ¶¶ 3, 27-28. Before the responding officers arrived, Defendant Howell again contacted the Ashe County dispatcher to report that the Decedent had discharged his weapon three more times. [Doc. No. 34] at ¶ 29. He reported to dispatch that he would meet law enforcement at the Decedent's home, and recommended that the responding officers approach the home "stealthily, without any sirens or flashing dome lights." Id. at ¶¶ 29-30. Before leaving his residence to join with the responding officers, Defendant Howell donned tactical gear and warned the Decedent's neighbors to stay inside their homes. Id. at ¶¶ 36-37.
Defendant Hopkins and Officer Jake Howell arrived at the Decedent's home before the others. It was dark and the Decedent was inside the residence when they arrived. Rather than immediately approach the home, the officers chose to wait and watch the house from a distance of approximately thirty-five yards. [Doc. No. 34] at ¶¶ 39-42. After a brief time, the Decedent emerged from his home with his dog — unaware of the officers' presence and carrying a loaded, single-shot, bolt-action rifle in a non-threatening position ("muzzle up"). Id. at ¶¶ 43-45. Defendant Hopkins ordered the Decedent to drop his rifle. Id. at ¶ 49. When the Decedent did not comply with the order, Defendant Deputy Hopkins and Officer Jake Howell shot him. [Doc. No. 34] at ¶ 53. Deputy Munday arrived just as the gunfire began and "joined in the gunfire" with his fellow officers. Id. at ¶¶ 55-56. The Decedent died after he was shot nine times. Id. at ¶¶ 59-60. Defendant Howell arrived on the scene after the fatal encounter. See id. at ¶ 63.
Plaintiff filed this lawsuit on November 18, 2014. In her Second Amended Complaint, the Plaintiff alleges that Defendants Howell and Hopkins violated the Decedent's Fourth Amendment right to be free from unreasonable seizures.
When reviewing a Rule 12(b)(6) motion to dismiss, this Court must examine the legal sufficiency of the complaint; it may not resolve factual disputes or weigh the claims and defenses against one another. See Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999). Rather, the court must accept as true all of the well-plead factual allegations contained in the complaint. See Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993). A court may, however, determine whether the facts alleged are sufficient, when taken at face-value, to reasonably imply liability on the part of the defendant. In order to survive such a motion, the complaint's "[f]actual allegations must be enough to raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Indeed, the "complaint must contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). A claim is facially plausible when the factual content allows for the reasonable inference that the defendant is liable for the misconduct alleged. Id.
However, a pleading that offers mere "labels and conclusions" or "a formulaic recitation of the elements of a cause of action will not do." Iqbal, 556 U.S. at 678. In order to assert a claim for relief, the complaint must allege facts that imply more than a "sheer possibility that a defendant has acted unlawfully" or "facts that are `merely consistent with' a defendant's liability[.]" Id. at 678 (quoting
Plaintiff alleges that Defendant Howell is liable to the Decedent's estate for depriving the Decedent of his constitutional right to be free from unreasonable seizures. Plaintiff asserts this claim pursuant to 42 U.S.C. § 1983. Section 1983 of Title 42 of the United States Code provides:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . ., subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. . . .
42 U.S.C. § 1983. Section 1983 creates only the right of action; it does not create any substantive rights; instead, substantive rights must come from either the Constitution or federal statute. See Spielman v. Hildebrand, 873 F.2d 1377, 1386 (10th Cir. 1989) ("Section 1983 does not provide a remedy if federal law does not create enforceable rights."); see also Sawyer v. Asbury, 537 Fed. App'x 283, 290 (4th Cir. 2013) ("Section 1983 `is not itself a source of substantive rights,' but merely provides `a method for vindicating federal rights elsewhere conferred.'" (quoting Albright v. Oliver, 510 U.S. 266, 271 (1994)). To state a claim upon which relief can be granted under Section 1983, a plaintiff must allege: (i) the deprivation of a federal right; (ii) that a person, both factually and legally, caused the deprivation of that right; and (iii) that the person who deprived the plaintiff of that right was acting under color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988); accord M. SCHWARTZ, SEC. 1983 LITIG. CLAIMS & DEFENSES, § 1.04.
Defendant Howell moves to dismiss the Plaintiff's Section 1983 claim on qualified immunity and proximate causation grounds.
"Qualified immunity, when found to apply, bars § 1983 suits against government officers in their individual capacity." Cloaninger v. McDevitt, 555 F.3d 324, 330 (4th Cir. 2009). Because the doctrine seeks to protect government officials from the burdens of trial and preparing for trial, the Supreme Court has "repeatedly . . . stressed the importance of resolving immunity questions at the earliest possible stage in litigation." Hunter v. Bryant, 502 U.S. 224, 227 (1991) (per curiam). "Unless the plaintiff's allegations state a claim [for the] violation of clearly established law, a defendant pleading qualified immunity is entitled to dismissal before the commencement of discovery." Mitchell v. Forsyth, 472 U.S. 511, 526 (1985).
Determining whether a case should be dismissed on qualified immunity grounds requires three inquiries: "First, [a court] must decide whether a constitutional right would have been violated on the facts alleged." Cloaninger, 555 F.3d at 330 (internal quotations and citations omitted). Next, a court must "ask whether the right was clearly established . . . in light of the specific context of the case." See Scott v. Harris, 550 U.S. 372, 377 (2007). Lastly, the Fourth Circuit has held that the third-step in the qualified immunity analysis requires a court to determine whether "a reasonable person in the officer's position would have known that his or her actions violated that right." See Gould v. Davis, 165 F.3d 265, 269-73 (4th Cir. 1998). This prong of the analysis basically asks whether prior precedent provided an officer with "fair notice" or "fair warning" that his or her actions would violate the constitutional rights of the harmed party. See, e.g., City & Cty. of San Francisco, Calif. v. Sheehan, ___ U.S. ___, ___, 135 S.Ct. 1765, 1777, 191 L. Ed. 2d 856 (2015); Hope v. Pelzer, 536 U.S. 730, 739 (2002); M.C. ex rel. Crawford v. Amrhein, 598 Fed. App'x 143, 147 (4th Cir. 2015) (acknowledging that an official can be held liable "`even in novel factual circumstances' so long as [the] official[] had `fair notice' that [his or her] conduct violated a constitutional right.").
Here, the Court need only proceed to the third prong of the analysis to resolve the Plaintiff's Section 1983 claim against Defendant Howell. In addressing the third prong of the qualified immunity analysis, the Court must assess whether Defendant Howell had "fair notice" or "fair warning" that his actions would result in Defendant Deputy Hopkins' alleged use of excessive force against the Decedent. See Sheehan, 135 S. Ct. at 1777; Hope, 536 U.S. at 739; Amrhein, 598 Fed. App'x at 147.
Defendant Howell argues that, at the time of the Decedent's death, it was not clear based on prior precedent that his specific actions, which he claims consisted of merely calling 911 and omitting his knowledge of the Decedent's medical infirmities, would result in the violation of the Decedent's constitutional rights. See [Doc. No. 36] at p. 13. While Defendant Howell's argument ignores the additional allegations, taken as true and in the light most favorable to Plaintiff, that he also falsely informed Defendant Hopkins, inter alia, that the Decedent was acting in a dangerous manner, was shooting at Defendant Howell's home, and had threatened to kill any police officers who dared to venture onto the Decedent's property; even assuming those allegations in Plaintiff's favor, the Court does not find that any Supreme Court or Fourth Circuit precedent placed Defendant Howell on "fair notice" that his false statements and omissions would result in the unreasonable seizure allegedly suffered by the Decedent.
In reaching this conclusion, the Court has considered the Supreme Court case Franks v. Delaware, 438 U.S. 154 (1978), and its progeny, on which the parties have based their arguments. In Franks, the Supreme Court recognized that an officer contravenes the Fourth Amendment when he procures a search warrant through the use of false statements, whereby a magistrate would not have otherwise found probable cause. See Franks, 438 U.S. at 155-56. In the case of Miller v. Prince George's Cnty, 475 F.3d 621 (4th Cir. 2007), the Fourth Circuit extended Franks to Section 1983 claims, and held that if an officer "deliberately or with a `reckless disregard for the truth' ma[kes] material[ly] false statements in his affidavit [in support of a warrant] . . . or omit[s] from that affidavit `material facts with the intent to make, or with reckless disregard of whether they thereby made, the affidavit misleading,'" then an arrest based on the warrant is unreasonable under the Fourth Amendment. See Miller, 475 F.3d at 627 (citation omitted).
Plaintiff asserts that Franks "covers the liability for an officer's deliberate, material misrepresentations" and that, somehow, Franks "combines" with the "collective knowledge doctrine" described in United States v. Massenburg, 654 F.3d 480 (4th Cir. 2011), to make Defendant Howell liable for the Decedent's death, based on the knowledge allegedly imputed to Defendant Hopkins and based on Defendant Hopkins' individual actions. [Doc. No. 40] at pp. 11. The Court is unconvinced by this argument. First, Franks and Miller concern circumstances where a warrant was procured from a magistrate based upon materially false or misleading information, and the execution of that warrant resulted in the violation of a complainant's constitutional rights. See Franks, 438 U.S. at 155-56; Miller, 475 F.3d at 624-33. Here, Defendant Howell did not apply for a warrant and did not seek to establish probable cause for the Decedent's arrest through his false statements. Instead, Defendant Howell merely requested that officers proceed to the Decedent's home to "check on" him. Assuming that the additional statements were made by Defendant Howell to Defendant Hopkins does not change the analysis. Accordingly, Franks and Miller are distinguishable. Further, Plaintiff has not cited the Court to any cases from the Fourth Circuit or the Supreme Court, and the Court has found none, that clearly establish that the specific actions taken by Defendant Howell violate the Fourth Amendment.
Additionally, Plaintiff's reliance on Massenburg is both perplexing and unconvincing. The "collective knowledge doctrine" recognized in Massenburg "simply directs [a court] to substitute the knowledge of the instructing officer or officers for the knowledge of the acting officer[.]" United States v. Patiutka, 804 F.3d 684, 691 (4th Cir. 2015). The doctrine does not (and has not been held to) impute liability to an instructing officer for the acts of an alleged subordinate officer. See Mattox v. City of Beaufort, 2015 WL 4488036, at *10 n.15 (D.S.C. July 22, 2015) ("There is no case law in the Fourth Circuit [applying] [Massenburg] to impute liability in a civil lawsuit."). Here, Plaintiff appears to be arguing that Massenburg directs an imputation of liability to Defendant Howell for Defendant Deputy Hopkins' actions. This is inappropriate because Massenburg does not extend that far. Additionally, extending Massenburg that far would require this Court to repudiate a basic tenet of Section 1983 litigation — the rule that vicarious liability is inapplicable in the constitutional tort context. See Iqbal, 556 U.S. at 676 ("Because vicarious liability is inapplicable to . . . § 1983 suits, a plaintiff must plead that each . . . defendant, through the official's own individual actions, has violated the Constitution."). Whether combined with Franks and Miller or not, it was not "clearly established" that Massenburg worked to impute such liability to Defendant Howell
Accordingly, Plaintiff has failed to demonstrate that, at the time he acted, Defendant Howell was on "fair notice" or had "fair warning" that his actions would violate the Decedent's constitutional right to be free from an unreasonable seizure. Therefore, Defendant's Motion to Dismiss the Plaintiff's Section 1983 claim against him is
Plaintiff also contends that Defendant Howell is liable based on the state law tort of wrongful death. Defendant Howell contests Plaintiff's claim on the grounds of state law "public official" immunity and on proximate cause grounds.
The Court first addresses Defendant Howell's state law immunity argument. Under North Carolina law, public official immunity is "a derivative form" of governmental immunity, Epps v. Duke Univ., 468 S.E.2d 846, 850, 122 N.C. App. 198, 203 (N.C. Ct. App. 1996), which precludes suits against public officials in their individual capacities as follows:
Smith v. State, 222 S.E.2d 412, 430, 289 N.C. 303, 331 (N.C. 1976). Thus, a public official is immune from suit unless the challenged action was (1) outside the scope of his or her official authority, (2) done with malice, or (3) corrupt. Id. Moreover, North Carolina recognizes the doctrine of "constructive" intent, which allows the inference of "malice" and an "intent to injure" where an actor's conduct is "so reckless or so manifestly indifferent to the consequences" of his or her actions so as to "justify a finding of [willfulness] and wantonness equivalent in spirit to an actual intent." Foster v. Hyman, 148 S.E. 36, 38, 197 N.C. 189, 192 (N.C. 1929).
Defendant argues that he is entitled to state law immunity because Plaintiff has done nothing more than make "bare-bones" allegations of either "implied malice" or that his false statements and omissions were outside the "scope of his authority." [Doc. No. 36] at pp. 17-18. Defendant argues that, at most, Plaintiff has alleged only negligence, and negligence itself is insufficient to overcome public official immunity. See id. (citing Wilcox v. City of Asheville, 730 S.E.2d 226, 222 N.C. App. 285 (N.C. Ct. App. 2012) and Slade v. Vernon, 429 S.E.2d. 744, 110 N.C. App. 422 (N.C. Ct. App. 1993)). Plaintiff argues that she has sufficiently alleged "implied malice" and that the Second Amended Complaint supports the inference that Defendant Howell "lied to [Defendant] Hopkins about Decedent's conduct and motives to portray him as a dangerous menace who would kill the police if provoked," and that these "lies" "gave false information about [the Decedent's] actions and state of mind . . . [so as to] provo[k]e and create[] such a risk of Decedent's injury and death . . . to amount to constructive intent to injure." [Doc. No. 40] at pp. 14-16.
Here, as will be discussed below, the Court has determined that Defendant Howell's alleged false statements concerning the Decedent's dangerousness, which allegedly provoked the contextual circumstances leading to the Decedent's death, are sufficient, at this juncture, to support the Plaintiff's allegation of "implied malice" and "willful and wanton disregard." See Section III.B.2.ii., infra. Therefore the Court will not dismiss Plaintiff's wrongful death claim on state law immunity grounds at this time. However, Defendant Howell is free to raise the issue of state law immunity at a later date.
The Court next addresses Defendant's proximate cause argument.
Plaintiff alleges that Defendant Howell had known the Decedent for most of Defendant Howell's life, and that Defendant Howell knew the Decedent was legally blind and deaf on the night of the fatal exchange. See [Doc. No. 34] at ¶¶ 6-7. Defendant Howell did not disclose these facts to dispatchers or to the responding officers when he reported the Decedent's conduct. Id. at ¶¶ 31-32, 73. Plaintiff also alleges, however, that Defendant Howell made certain other statements, namely that he falsely told Defendant Hopkins that the Decedent had shot a gun in the direction of his home, that Defendant Howell felt threatened by Decedent, that multiple neighbors had called him to complain about the Decedent's behavior that night, that the Decedent had threatened to kill the police if they ever came to his residence, and that the Decedent listened to the police scanner.
Defendant Howell challenges the Plaintiff's causation theory. He argues that he cannot be held liable for the Decedent's death because his actions, viewed separately and independently, but in context, were not the proximate cause of the Decedent's injury. In essence, Defendant Howell argues that, even if he failed to disclose the facts alleged by Plaintiff, and even if he made the alleged false statements prior to the deadly encounter, Defendant Deputy Hopkins' actions constituted an intervening and superseding cause of the Decedent's death, thereby breaking the causal chain between Defendant Howell's actions and the shooting. At this juncture, the Court disagrees with Defendant Howell's argument.
After Defendant Howell made the call to report Decedent to the authorities, Defendant went on to direct a method by which the responding officers might approach and confront the Decedent. Defendant Howell, however, allegedly omitted and falsified critical facts respecting the Decedent's dangerous propensities and his inability to utilize his senses of eyesight and hearing to distinguish between friendly law enforcement and hostile intruders. Defendant Deputy Hopkins and the others are alleged to have followed Defendant Howell's suggestions.
Based on the complaint's allegations, the Court must conclude that Plaintiff has plausibly alleged that Defendant Howell's alleged falsified statements and omissions acted to "prime" and catalyze the subsequent encounter between the Decedent and responding officers, thus establishing the context in which a deadly encounter could occur between (1) a man incapable of distinguishing between law enforcement and those that might do him harm, and (2) law enforcement officers "primed" to anticipate a confrontation with a dangerous, erratic, and armed individual, who had previously threatened to kill any police officer daring enough to step onto his property. Under these facts, the Court cannot say, at this time, that Defendant Howell (a detective with the Ashe County Sheriff's Department) could not "foresee" that a deadly encounter would result from his false and material misrepresentations.
Consequently, based on the complaint's allegations and the reasoning above, the Court finds that Defendant Howell's conduct is not so far removed from the Decedent's death as to require the dismissal of the Plaintiff's wrongful death claim at this time.
Plaintiff has also brought state law claims of obstruction of justice against Defendants Howell and Hopkins arising from their actions during the investigation of the Decedent's death. In North Carolina, there exists a common law claim for "obstruction of justice," which is used to deter and remedy "any act which prevents, obstructs, impedes or hinders public or legal justice." Broughton v. McClatchy Newspapers, Inc., 588 S.E.2d 20, 30, 161 N.C. App. 20 (N.C. Ct. App. 2003) (internal citations omitted). "The common law offense of obstructing public justice may take a variety of forms," Blackburn v. Carbone, 703 S.E.2d 788, 795, 208 N.C. App. 519, 526 (N.C. Ct. App. 2010), and is therefore very fact-specific and context-driven. See, e.g., Grant v. High Point Reg'l Health Sys., 645 S.E.2d 851, 853, 184 N.C. App. 250, 253 (N.C. Ct. App. 2007) ("The common law offense of obstructing public justice may take a variety of forms." (citation and quotation marks omitted)).
Here, Plaintiff has made various allegations that the Defendants individually made intentionally false and misrepresentative statements to investigating officers from the North Carolina State Bureau of Investigation (the "SBI") regarding the Decedent's death and the circumstances surrounding his death. See, generally, [Doc. No. 34] at ¶¶ 34, 74, 79-80, 84-85, 125-127. Plaintiff argues that the Defendants' statements support a claim for common law obstruction of justice.
Defendants seize on the argument that, even if they had made the alleged falsehoods to investigators, their misrepresentations did not prevent the Plaintiff from filing the instant suit, or otherwise prevent her from pursuing the estate's claims in this Court. See [Doc. No. 36] at pp. 19-21; [Doc. No. 39] at pp. 5-10. However, the Court is not persuaded by such arguments. As the Fourth Circuit has observed, North Carolina's cause of action for "obstruction of justice" not only seeks to remedy actual and successful acts of nefarious obstruction, but it also remedies attempts to "prevent, obstruct, impede, or hinder justice." See Reed v. Buckeye Fire Equip., 241 Fed. App'x 917, 928 (4th Cir. 2007) (collecting cases). Here, even if the Defendants' alleged false statements were unsuccessful in preventing the Plaintiff from pursuing the estate's claims, it is their alleged attempt to prevent her from doing so that is controlling.
Moreover, the Reed court relied on North Carolina's criminal obstruction of justice statutes to reach its holding in that case. See Reed, 241 Fed. App'x at 30-31 (citing N.C. Gen. Stat. § 14-226 for support in finding that it is the "acts or attempted acts of the alleged obstructor, rather than the reaction of the victim," that govern the viability of a common law "obstruction of justice" claim). Following Reed, the Court notes that North Carolina criminally penalizes an individual for "obstruction of justice" where such person
See N.C. Gen. Stat. § 14-225(a). Here, Plaintiff alleges that Defendants Howell and Hopkins made intentionally misleading and false statements to the SBI during the immediate aftermath of Defendant Hopkins' encounter with the Decedent. See [Doc. No. 34] at ¶¶ 34, 74, 79-80, 84-85, 125-127. Plaintiff further alleges that these false statements were made for the purpose of impeding the SBI's investigation and Plaintiff's ability to pursue any civil claims. Id. at ¶¶ 34, 74, 79-80, 84-85, 125-127. Such acts, if proven, would seem to fall within North Carolina's obstruction of justice statute, and would seemingly support the Plaintiff's claim.
Nevertheless, the Court is constrained by controlling Fourth Circuit case law to dismiss Plaintiff's obstruction of justice claims against the Defendants. In Evans v. Chalmers, 703 F.3d 636 (4th Cir. 2012), the Fourth Circuit was presented with a case in which it was alleged that certain police officers had fabricated evidence, tampered with evidence, and manipulated witnesses during the course of a criminal investigation. See Evans, 703 F.3d at 657-58. As a result of the officers' alleged transgressions, plaintiffs brought suit and asserted, inter alia, claims for state common-law obstruction of justice. Id. at 658. The district court held that, under such facts, the plaintiffs had stated viable claims for obstruction of justice because "it could not `rule out the possibility that a claim could exist for common law obstruction of justice for [the] creation of false evidence or destruction of evidence for the purpose of impeding the justice system, even if the conduct occurred as part of a criminal investigation.'" Evans, 703 F.3d at 658 (quoting McFadyen v. Duke Univ., 786 F.Supp.2d 887, 975 (M.D.N.C. 2011)). On appeal, the Fourth Circuit disagreed with the district court and reversed.
In reversing the district court, the Fourth Circuit held, succinctly, as follows:
Evans, 703 F.3d at 658 (internal citations omitted). In a later case, the Fourth Circuit noted that "an utter dearth" of North Carolina cases have interpreted the "obstruction of justice" claim since Evans, and none had changed its essential holding as it relates to this issue. See Massey v. Ojaniit, 759 F.3d 343, 358 (4th Cir. 2014). Plaintiff has directed this Court to no cases altering the Evans court's determination. Finding no materially distinguishable facts between this matter and Evans, the Court finds that the alleged false statements were made by the officer Defendants during the course of an official police investigation, and therefore, the Court is bound to apply Evans to the Plaintiff's state law claims for obstruction of justice.
Accordingly, the Court
