MEMORANDUM OPINION AND ORDER
This matter comes before this court on the motion to dismiss Plaintiffs claims filed by Defendants City of Greensboro
I. BACKGROUND
A. Parties
Plaintiff is an individual who was previously imprisoned for a crime of which he was innocent. (Complaint (“Compl.”) (Doc. 1) ¶ 1.) Defendant City of Greensboro is a municipal corporation and the Greensboro Police Department (“GPD”) is a department of Defendant City of Greensboro: (Id. ¶ 10.) Defendants J.F. Whitt; and David Spagnola were police detectives employed by Defendant City of Greensboro at the time of the investigation, arrest, and prosecution of Plaintiff. (Id. ¶¶ 11-12.) Defendant Sylvester Daughtry, Jr., served as the Chief of Police of Defendant City of Greensboro at that time. .(Id. ¶ 13.)
B. Factual Allegations
The following facts are drawn from the Complaint and are presented in the light most favorable to Plaintiff. See Ashcroft v. Iqbal,
The underlying criminal case in this matter arose from the investigation of the murder of Ernestine Compton in ■ July 1988. (Compl. (Doc. 1) ¶¶ 1-2.) However, in December 2011, Plaintiff filed a Motion for Appropriate Relief in the Guilford County Superior Court that, after investigation, was consented to by the Guilford County District Attorney’s Office. (Id. ¶4.) On June 29, 2012, Plaintiffs conviction was vacated, (id. ¶ 5); on March 13, 2013, the first-degree murder charge against him was dismissed, (id. ¶ 6); and on December 23, 2013, Governor Pat McCrory granted Plaintiff a Pardon of Innocence. (Id. ¶ 7.)
1. Ernestine Compton’s Murder
In July 1988, Ernestine Compton was murdered in her home in Greensboro, North Carolina. (Id. ¶ 15.) Folio-wing the discovery of Compton’s body, Defendant Whitt was the lead detective assigned to the investigation and was assisted by Defendant Spagnola and various other GPD officers and detectives. (Id. ¶ 18.) Plaintiff alleges that Defendant Daughtry was responsible for the establishment of policies, procedures, and customs applicable to the GPD and used by the officers and detectives during the investigation. (Id.)
2. The Crime Scene Search
The GPD collected a significant amount of forensic evidence from the crime scene and these items were preserved for future processing and analysis and turned in to
3. Charles Blackwell Falsely Implicates Plaintiff
News stories recounting Compton’s murder include stories in the Greensboro News & Record. (Id. ¶22.) As Compton was well known in the black community in Greensboro at that time, the community also speculated about who might be responsible for her death. (Id, ¶ 24.) A July 26, 1988 story in the Greensboro News & Record indicated that the Governor’s office, the police, and Crime Stoppers were all offering monetary awards for information about her murder. (Id. ¶ 26.) The following day,, the GPD received a tip through Crime Stoppers that identified Plaintiff as a possible suspect in the murder. (Id. ¶ 26.) Plaintiff alleges that this tip came from Charles Blackwell, a street criminal who had been a GPD informant for a number of years and was well known to Defendants Whitt and Spagnola.' (Id. ¶¶26-28.)
Based on the Crime Stopper’s tip, Defendant Whitt spoke with Plaintiff over the telephone. (Id. ¶ 33.) Plaintiff alleges that Defendants Whitt and Spagnola did not find any evidence inconsistent with what Plaintiff said. in. this call. (Id.) For two weeks, Defendant Whitt interviewed other witnesses and suspects, but he received no other information implicating Plaintiff in the murder. (Id. ¶ 34.)
Plaintiff then alleges an extensive pattern of occurrences where Blackwell would speak with the detectives, provide inconsistent or non-specific information about the murder or fail to persuade Plaintiff to make incriminating statements or admissions, and nevertheless receive compensation or aid with criminal charges. (See, e.g., id. ¶¶ 35-39.) Plaintiff additionally alleges a pattern of the inconsistencies, associated recordings, or other pieces of information being withheld from the District Attorney’s Office and from the Prosecution Summary prepared by Defendant Whitt. (See, e.g., id ¶ 38.) Further, Plaintiff alleges that the detectives would make false or coercive statements to Blackwell, to induce his statements against Plaintiff, and that these statements, as well as some inconsistencies, were not included in the Prosecution Summary. (See, e.g., ¶¶ 53-65.) Other allegations by Plaintiff recount events or testimony by other individuals that should have borne on Blackwell’s credibility. (See, e.g„ ¶¶ 66-67.)
In February and May 1989, the FBI reported the results of its analysis of the physical evidence from the crime scene and none of the evidence matched Plaintiff. (Id. ¶ 75.) Thus, Plaintiff alleges that only Blackwell's uncorroborated and inconsistent statements linked him to the murder. (Id, ¶ 76.) Further, between 1988 and 1994, neither Blackwell nor Plaintiff was arrested for Compton’s murder. (Id.)
4. The GPD’s Policy and Practice with Respect to Informants
Plaintiff alleges that prior to Compton’s death and throughout the investigation, the GPD maintained an improper policy and practice of actively encouraging detectives to rely on information from infor
In furtherance of this, Plaintiff alleges that GPD informants were given money or favorable, treatment in exchange for cooperation and information, regardless of the information’s accuracy, allowing informants to initiate contact with the GPD and trade false information for money. (Id. ¶ 83.) Consequently, he alleges that Defendant Daughtry knew or reasonably should have known that on a frequent basis, GPD informants were studying local newspapers for crime details, incorporating those details into stories, and then offering the stories to the GPD, (id.), and that GPD officers were improperly cultivating and employing informants. (Id. ¶ 84.) Plaintiff further alleges that Defendant Daughtry implemented this policy and encouraged and condoned this conduct. (Id.)
Plaintiff alleges that Defendants Whitt and Spagnola provided Blackwell with the only factual details included in his statements, despite the fact that any reasonable detective would have known that this was improper and dangerous and would cause an informant’s later statements to be contaminated and unreliable. (Id. ¶ 86.)
5. The 1994 Investigation
Despite the lack of new evidence, Defendant Whitt decided to re-open the investigation in 1994, allegedly due to pressure to solve the crime. (Id. ¶ 88.) Blackwell was brought to the GPD and given a polygraph examination. (Id. ¶¶ 89-90.) In the pre-test interview, he said that the statements he gave in 1988 were not true and he did it because he wanted help from the officers. (Id. ¶ 90.) However, allegedly due to pressure, (id. ¶ 91), Blackwell changed course and then stated that his October 29, 1988 statement was the truth, although his new claim had some discrepancies from his pri- or statement. (Id.. ¶ 92.) Nevertheless, Whitt did not take a new statement and instead read the October 29, 1988 statement to Blackwell and had him say that it was true. (Id. ¶¶ 93-94.)
6. Whitt and the Arrest of Plaintiff
. On April 4, 1994, Defendant Whitt obtained an arrest warrant for Plaintiff for first-degree murder in Compton’s death based solely on the October 29,1988 stater ment from Blackwell. (Id. ¶ 97.) Plaintiff alleges that at this time, Defendant Whitt knew Blackwell’s statements were inconsistent with each other, provided for monetary benefit and favorable treatment, given under the threat of indictment, inconsistent with known facts and other witness statements, and not corroborated by independent facts. (Id ¶ 98.) Plaintiff alleges that Defendant Whitt did not inform the magistrate who issued the arrest warrant of these facts and thus, under these circumstances, there was no probable cause. (Id. ¶¶ 99-100.) •
Shortly after Plaintiff was charged, three other informants came forward: Timothy McCorkle, Dwight Blockem, and William Earl Davis. (Id. ¶ 101.) McCorkle wrote a letter on May 26,1994, alleging he saw what happened; at the same time of his first contact alleging to have informar tion, he had completed his first month of a twenty-five-year prison sentence and filed a motion for appropriate relief to shorten his sentence. (Id. ¶ 102.) When interviewed, McCorkle’s story was' inconsistent with the story Blackwell had recounted. (See id. ¶¶ 103-04.) Despite these inconsistencies, the fact that McCorkle had reason to have a strong personal bias against Plaintiff, and the timing of McCorkle’s letter and its supposed revelations, Defendant Whitt did not follow up on these issues. (Id. ¶¶ 105-09.) The two additional informants, Dwight Blockem and William Earl Davis, claimed to have heard Plaintiff make incriminating statements after his arrest in April 1994. (Id. ¶ 110.) Blockem first claimed to have' information and begged for help on August 15,1994, following his conviction as a habitual felon, fifteen-year sentence, and during his attempt to appeal. (Id. ¶ 111.) Although Blockem’s statement regarding what he had supposedly heard from Plaintiff was inconsistent with Blackwell’s statements, Defendant Whitt did not further investigate his credibility. (Id. ¶ 112.)
Davis was a regular offender and convicted criminal who first contacted Defendant Whitt after receiving a twenty-two-year sentence as a habitual offender for multiple offenses involving fraud. (Id. ¶ 113.) In addition to these markers of questionable reliability, his version of what Plaintiff said had significant discrepancies from Blackwell’s statement. (Id. ¶ 114.) Defendant Whitt again did not note the inconsistencies or seek to resolve them. (Id. ¶¶ 115-17.)
8.Pretrial Recantations
On May 17, 1994, Blackwell wrote a letter to Plaintiff in which he admitted to lying and telling the detectives that his statements had been false and stated that the detectives pressured him to testify anyway. (Id. ¶ 119.) Blackwell also wrote to the Chair of the Criminal Justice Committee of the NAACP in Greensboro and shared the same sentiments. (Id. ¶ 120.)
9.The Trial
Plaintiffs four-day-long criminal trial was in August 1995. (Id. ¶ 121.) Eleven of the State’s fifteen witnesses did not implicate Plaintiff in Compton’s murder; the four witnesses who did implicate him were Blackwell, Davis, McCorkle, and Blockem. (Id. ¶¶ 121-22.) Blackwell served as the State’s primary witness and was the only one to testify that he saw Plaintiff murder Compton. (Id. ¶ 123.) His version of events at trial differed from his previous statements, both in changed and new details. (See id. ¶¶ 123, 125.) However, despite being confronted on that ground, Blackwell indicated to the jury that his statement had been true and that his letters indicating that he had lied were instead attempts to get at Whitt, who had tried to threaten him some. (Id. ¶¶ 126-28.) Additionally, evidence that would have challenged Blackwell’s testimony was excluded from the list Defendant Whitt read at trial that purported to be a list of items of evidence collected at Compton’s house. (Id. ¶ 124.) Additionally, notes from Compton’s refrigerator were not produced at trial. (Id.)
Davis testified at trial to a version of events that was again inconsistent with Blackwell’s testimony. (Id. ¶ 129.) McCor-kle’s testimony was inconsistent with other facts as well as with Blackwell’s testimony. (Id. ¶¶ 130-32.) Blockem’s trial testimony
Additionally, during Plaintiffs testimony in his own defense, he was accused of lying about interactions or having lack of proof, when, he alleges, Defendant Whitt had withheld such evidence from the District Attorney’s Office and misrepresented that fact while on the stand. (Id. ¶¶ 136-38.)
10.Defendant Whitt and the Issue of Brady and Giglio Material Prior to and During Plaintiff’s Trial
Plaintiff specifically alleges that Defendant Whitt possessed evidence favorable to Plaintiff that could impeach testimony by the State’s witnesses but he did not provide this evidence to the District Attorney, mention it in the Prosecution Summary, or say anything during the inconsistent testimony that occurred at trial. (Id. ¶¶ 139-41.)
11.Post-Trial Recantations
On August 21, 1995, Blockem wrote a letter to Plaintiffs attorney stating that he was not truthful at Plaintiffs trial, supporting Blackwell’s earlier claim when he admitted he was not telling the truth, apologizing to Plaintiff, and claiming that Dé-fendant Whitt nevertheless forced him to testify. (Id. ¶ 142.) Blockem also said that Defendant Whitt made him a promise on the morning of his testimony to get him to testify. (Id.) Similarly, in March 1996, McCorkle wrote Plaintiff a letter indicating that he knew that others who testified were lying. (Id. ¶ 143.) Years later, in May 2010, Blackwell said that he called in the original tip for monetary gain and had lied at trial, even though the detectives knew he was lying and provided him with information about the murder and the crime scene, as they threatened him if he refused to testify. (Id. ¶¶ 144-48.)
12.Additional Potential Suspect
Plaintiff further alleges that another likely suspect, Christopher Bernard Caviness, was never interviewed about- this murder. (Id ¶¶ 149-53 (noting that Caviness later pled guilty to his father’s robbery and murder).) Later-analyzed physical evidence, after Plaintiffs Motion for Appropriate Relief, tied Caviness to the Compton murder scene. (Id. ¶¶ 154-55.)
II. LEGAL STANDARD
To survive a motion to dismiss, Plaintiffs must allege, “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal,
Nevertheless, sufficient factual allegations must “raise a right to relief above the speculative level” so as, to “nudge[ ] the[ ] claims across the line from conceivable to plausible.” Twombly,
III. ANALYSIS
A. Release
On December 23, 2013, Governor Pat McCrory granted Plaintiff a pardon of innocence. (Compl. (Doc. 1) ¶ 7.) Defendants contend that Plaintiff thereafter made a claim in the North Carolina Industrial Commission and received an award of compensation. (See Br. in Supp. of Defs. City of Greensboro and Sylvester Daugh-try, Jr.’s Mot. to Dismiss (“Greensboro and Daughtry’s Br.”) (Doc. 19) at 9; Ex. A (Doc. 19-1) at 2.)
Plaintiff further argues that the release “at most constitutes an affirmative defense, the applicability of which should be resolved only after discovery is completed.” (Id. at 15.) Defendants contend that the Complaint, by alleging the pardon of innocence, sufficiently raises the inference of a statutory remedy through the North Carolina Industrial Commission for wrongful imprisonment. (Greensboro and Daughtry’s Br. (Doc. 19) at 9 n.4.) However, substantive and procedural relief that may have been received is not raised in the Complaint. (See generally Compl. (Doc. 1).) For the following reasons, this court will not consider the release, (Greensboro and Daughtry’s Br., Ex. B (Doc. 19-2)), when ruling on the motions to dismiss.
“An affirmative defense is the ‘ “defendant’s assertion raising new facts and arguments that, if true, will defeat the plaintiffs or prosecution’s claim, even if all allegations in the complaint are true.’”” Emergency One, Inc. v. Am. Fire Eagle Engine Co.,
“Because the burden of establishing an affirmative defense rests on the defendant asserting it, a motion under Rule 12(b)(6) ... is generally not the appropriate vehicle to mount such a challenge.” McQuade v. Xerox Corp., No. 5:10-CV-149-FL,
in the relatively rare circumstances where facts sufficient to rule on an affirmative defense are alleged in the complaint, the defense may be reached by a motion to dismiss filed under Rule12(b)(6). This principle only applies, however, • if all facts necessary to the affirmative defense “clearly appear[ ] on the face of the complaint.”
Goodman v. Praxair, Inc., 494 F.Bd 458, 464 (4th Cir.2007) (en banc) (alteration in original) (citations omitted) (addressing the affirmative defense of a claim being time-barred).
Because “the defense may be reached by a motion to dismiss” in rare circumstances, id. if those circumstances are met, a defendant need not file defenses in the answer. Rather, in those circumstances, a defendant can raise the defense in his motion to dismiss. The defense can only be raised in a motion to dismiss, however, if a complaint contains all facts necessary to the defense. See id. (citation omitted); see also Brooks v. City of Winston-Salem,
McQuade v. Xerox Corp., No. 5:10-CV-149-FL,
. Further, and of particular note to this court is the fact that the release states that the released parties are “the State of North Carolina, its officers, employees, servants and agents —” (Greensboro and Daughtry’s Br., Ex. B (Doc. 19-2) at 2.) The Defendants in this case are identified in the Complaint as the “City of Greensboro[,] ... a municipal corporation,” (Compl. (Doc. 1) ¶ 10), “a department of the defendant City of Greensboro[,]” a municipal corporation, (id.), employees of the City of Greensboro, (see id. ¶¶ 11-12), and a “policymaker for the City of Greensboro[,]” (M. ¶ 13). It is not apparent from the face of the Complaint how these Defendants would be included within the language of the release agreement. Defendants’ arguments as to the intent of the parties for the release as reflected in the language of other releases, (see Reply Br. in Supp. of Defs. City of Greensboro and Sylvester Daughtry, Jr.’s Mot. to Dismiss (“Greensboro and Daughtry’s Reply Br.”) (Doc. 32) at 12), are not persuasive at this stage of the' proceedings. It may be that the release is determined to be controlling as a
Thus, as this is an affirmative contractual defense, this court does not find a Rule 12(b)(6) dismissal to be appropriate. To the extent Defendants’ motion to dismiss is predicated on the release, the motion will be denied.
B. Counts III and IV: Claims against Defendant Daughtry in his Official Capacity
In their joint motion to dismiss, Defendants City of Greensboro and Daughtry move to dismiss the official capacity claims against Defendant Daughtry as duplicative of the claims against Defendant City of Greensboro. (Defs. City of Greensboro and Sylvester Daughtry, Jr.’s Mot. to Dismiss (Doc. 18) at 2; Greensboro and Daughtry’s Br. (Doc. 19) at 13.) Specifically, Defendants assert that “a ‘§ 1983 claim against [Daughtry] in his official capacity as [Chief of Police] is essentially a claim against the [City] and thus should be dismissed as duplicative[,]’ ... [and because] [t]he official capacity part of Count III is essentially duplicative of Count IV,” both claims against Defendant Daughtry in his official capacity should be dismissed. (Greensboro and Daughtry’s Br. (Doc. 19) at 13 (citation omitted).)
Plaintiff concedes that Count III was only intended to be against Defendant Daughtry in his individual capacity. (PL’s Resp. to Defs.’ Mot. to Dismiss the Claim against Def. Spagnola for Concealing Exculpatory and Impeachment Evidence and the Official Capacity Claim against Def. Daughtry (Doc. 28) at 2.) However, Plaintiff argues that Count IV “alleges that defendant Daughtry had final policymaking authority ... with regard to law enforcement matters, and sets out an ‘official capacity’ claim[.]” (Id.) He argues that the fact that the City could be liable for Defendant Daughtry’s conduct in his official capacity does not justify dismissal at this point and “will in no way affect discovery,” instead advocating to reserve this matter for when it is submitted to a jury. (Id. at 3.) Defendants reply asserting that “[t]he law is clear that Section 1983 claims against an employee in his ... official capacity are duplicative of claims against the employer and therefore subject to dismissal.” (Greensboro and Daughtry’s Reply Br. (Doc. 32) at 14 (citations omitted).) They also assert that “Plaintiff cites no authority contrary to Love-Lane.” (Id.)
In Love-Lane v. Martin,
[o]fficial-capacity suits ... “generally represent only another way of pleading an action against an entity of which an officer is an agent.” As long as the government entity receives notice and an opportunity to respond, an official-capacity suit is, in all respects other than name, to be treated as a suit, against the entity.
Id. at 165-66,
Thus, duplicative claims against an individual in his official, capacity when the government entity is also sued may be dismissed. See W.E.T. v. Mitchell, No. 1:06CV487,
Given this precedent and noting that Count IV is against both the City of Greensboro and Defendant Daughtry in his official capacity, (Compl. (Doc. 1) at 58), and given Plaintiffs concession that including Defendant Daughtry in his official capacity in Count III was a drafting error, this court will dismiss Counts III and IV against Defendant Daughtry in his official capacity.
C. Count III against Defendant Daughtry in his Individual Capacity
1. Factual Allegations Specific to Counts III and IV
Plaintiffs allegations against Defendant Daughtry incorporate the informant policy allegations. (Compl. (Doc. 1) ¶ 194.) Further, for Count III, Plaintiff specifically alleges that Defendant Daughtry failed to adequately train, supervise, and discipline GPD detectivés or failed to ensure that adequate training, supervision, and discipline were provided by direct supervisors regarding both how to use informants and how to disclose exculpatory and impeachment material. (Id. ¶ 196.) Plaintiff additionally alleges that Daughtry failed to ensure reasonable behavior and proper use of informants and disclosure of evidence during this case and'that this failure to adequately train, supervise, and discipline Defendants amounted to gross indifference or intentional misconduct that directly caused violations of Plaintiffs constitutional rights and other injuries, (Id. ¶¶ 197-203.)
As to Count IV, Plaintiff specifically alleges that Daughtry had final policymak-ing authority for GPD and the City of Greensboro with respect to law enforcement and criminal investigations and that he knew or reasonably should have known about the detectives’ pattern and practice of fabricating and concealing evidence via systemic disregard of proper and accepted practices and procedures. (Id. ¶¶ 205-06.) He alleges further that Defendant Daugh-try agreed to, approved, condoned, or ratified this policy and custom of acting against general practices and causing violations of Plaintiffs constitutional rights and other damages. (Id. ¶¶ 207-212.)
2. Arguments and Analysis
Defendants City of Greensboro and Daughtry argue that Plaintiffs direct and supervisory liability allegations are merely con’clusory and lack sufficient factual matter to survive a Rule 12(b)(6) motion. (Greensboro and Daughtry’s Reply Br. (Doc. 32) at 15-18.) They also argue for
Plaintiff asserts that both individual direct liability and supervisory liability are alleged sufficiently, (Pl.’s Resp. in Opp’n to Defs. Daughtry and City of Greensboro’s Mots, to Dismiss Counts III and IV (“PL’s Resp, to Counts III and IV”) (Doc. 27) at 8-11.) He seeks to distinguish his Complaint from that at issue in Safford v. Barnes, No. 1:14cv267,
Defendants argue that “[tjhere are no allegations of actual involvement by Daughtry in the investigation of Plaintiff’ and instead “[t]he allegations of insufficient supervision, discipline, and training are, in essence, allegations of supervisory liability.” (Greensboro and Daughtry’s Br. (Doc. 19) at 17 (citation omitted)). They also argue that “Plaintiff has not alleged any conduct by Daughtry that deprived Plaintiff of a constitutional right” and “[t]he only allegations connecting Daugh-try to the ... investigation are that he was the Chief of Police at the time and signed a cover letter to the FBI in connection with a request for examination of forensic evidence.” (Greensboro and Daughtry’s Reply Br. (Doc. 32) at 15-16.)
To prevail on a direct liability theory, Plaintiff must “establish that [Defendant] committed a direct violation of [his] constitutional rights.” Mandsager v. Univ. of N.C. at Greensboro,
As an example, in Cranford v. Frick, No. 1:05CV00062,
Personal involvement and affirmative misconduct or tacit authorization are necessary to establish the,direct liability of a supervisor. Section 1983 liability does not arise “for mere negligence, or even gross negligence in ‘failing to detect and prevent subordinates’ misconduct.’ Instead, a supervisor ‘must know about the conduct and facilitate it, approve it, condone it, or turn a blind eye Id. (citations omitted) (observing that this element is required “because it is the ‘super
Consequently, in Goodwin v. Beasley, No. 1:09CV151,
As a contrast, however, Safford v. Barnes addressed liability in the context of a § 1983 claim. There, the plaintiff asserted that the defendant, “in his individual capacity- — failed to properly hire, train, educate, and supervise deputies under § 1983.”
Plaintiffs specific allegations focus on Defendant Daughtry’s role overseeing the GPD and Defendants Whitt and Spagnola in particular. Here, there is no allegation that Defendant Daughtry was involved specifically in or around the particular misconduct alleged against Plaintiff, The allegations are only that he generally encouraged them to use questionable informants — something that appears to have applied to the entire department. (See Compl. (Doc. 1) ¶¶ 78-79, 81, 84.) Instead, the allegations, specifically included under Count III (in contrast to those incorporated via, ¶ 194 of the Complaint) all focus on the lack of adequate training, supervision, and discipline — omissions on a departmental level, rather than specifically with Defendants Whitt and Spagnola or this investigation — and not on individual actions. Indeed, Count III is entitled “42 U.S.C, § 1983 Claim For Failing to Establish a Constitutionally Adequate Regime of Training, Supervision and/or Discipline Regarding the Appropriate Use of Informants and the Production of Brady and Giglio Material to Prosecutors.” (Id. at 56 (emphasis added).) Plaintiff merely points to Defendant Daughtry’s “encouragement” as the individual act, relying on “reasonable inferences” to support direct liability
While Plaintiff seeks to distinguish his case from Safford in part by emphasizing the difference in volume of allegedly unlawful behavior in his Complaint and in the Safford complaint, (see id. at 5-8), this contrast does not sufficiently distinguish his direct liability claim against Defendant Daughtry from the supervisory claim in Safford. Specifically, Plaintiffs direct liability claim emphasizes Defendant Daugh-try’s training, supervising, and disciplinary roles and he cites to prior allegations of “encouragement” of the police officers. (Id. at 8-9; Compl. (Doc. 1) ¶¶ 194-203.) However, the Safford allegations are sufficiently similar, as they focused on alleged inaction, lack of knowledge of prior misconduct, and did not articulate instructions or other actions by the supervisor causing the subordinate’s actions against the plaintiff. Safford,
Plaintiffs supervisory liability claim is discussed infra, but, for direct liability, Defendant Daughtry must have done something that draws a sufficient link between his actions and the constitutional injury to hold him directly and individually liable. Even Goodwin required “an affirmative link.” Goodwin,
Plaintiff and Defendants also address the question of Defendant Daugh-try’s supervisory liability under § 1983. Despite limits on supervisory liability in § 1983 actions, “supervisory officials may be held liable in certain circumstances for the constitutional injuries inflicted by them subordinates — premised upon ... ‘a recognition that supervisory indifference or tacit authorization of subordinates’ misconduct may be a causative factor in the constitutional injuries they inflict on those committed to their care.’ ” Shaw v. Stroud,
To establish supervisory liability under § 1983, a plaintiff must show:
(1) that the supervisor had actual or constructive knowledge that his subordinate was engaged in conduct that posed “a pervasive and unreasonable risk” of constitutional injury to citizens like the plaintiff; (2) that the supervisor’s response to that knowledge was so inadequate as to show “deliberate indifference to or tacit authorization of the alleged offensive practices,”; and (3) that there was an “affirmative causal link” between the supervisor’s inaction and the particular constitutional injury suffered by the plaintiff.
Id. at 799 (citations omitted); see also Wilkins v. Montgomery,
To establish the first element of actual or constructive knowledge, “a plaintiff must show the following: (1) the supervisor’s knowledge of (2) conduct'engaged in by a subordinate (3) where the conduct poses a pervasive and unreasonable risk of constitutional injury to the plaintiff.” Shaw,
Greene v. County of Durham Office of the Sheriff Department, No. 1:14-CV-153,
To establish the second element, a plaintiff must allege either tacit authorization or deliberate indifference. A “heavy burden” is required to prove deliberate indifference, requiring a plaintiff to “demonstrate] a supervisor’s ‘continued inaction in the face of docuipented widespread abuses.’” Shaw,
For this second element, the Fourth Circuit has determined that
[o]rdinarily, [the plaintiff] cannot satisfy his burden of proof by pointing to a single incident or isolated incidents, for a supervisor cannot be expected to promulgate rules and procedures covering every conceivable occurrence .... Nor can he reasonably be expected to guard against the deliberate criminal acts of his properly trained employees when he has no basis upon which to anticipate the misconduct. A supervisor’s continued inaction in the face of documented.widespread abuses, however, provides an independent basis for finding he either was deliberately indifferent or acquiesced in the constitutionally offensive conduct of his subordinates.
Slakan v. Porter,
In contrast, the plaintiffs in Shaw v. Stroud,
Finally, to establish the third element, a plaintiff must “demonstrate[ ] an ‘affirmative causal link’ between the supervisor’s inaction and the harm suffered by the plaintiff[,]” either through “cause in fact [or] proximate caus[ation].” Id. at 799 (citations omitted).
. As to the first element, Plaintiff alleges that detectives frequently engaged in questionable informant practices and that the “supervisors, including defendant Daughtry, encouraged and condoned this conduct, which most, if not all, GPD detectives engaged in on multiple occasions over a number of years.” (Compl. (Doc. 1) ¶ 81.) He also alleges that Defendant Daughtry “knew or reasonably should have known” that these questionable informant tactics occurred “on a frequent basis.” (Id. ¶ 83.) Defendants counter that “Plaintiff has made only broad, conclusory allegations” and that he failed to “allege that Daughtry had knowledge of the type of misconduct at issue.” (Greensboro and Daughtry’s Br. (Doc. 19) at 18-19 (citations omitted).) '
Plaintiff does allege general facts about the cultivation of informants and that Daughtry either knew or reasonably should have known about these practices. (Compl. (Doc. 1) ¶ 83.) However, Plaintiff fails to allege facts sufficient to show a widespread pattern or practice from which to derive Defendant Daughtry’s liability here. Specifically, Plaintiff only alleges one instance of the alleged pattern leading to a constitutional violation and wrongful conviction—the events at issue in his own case. There are no other sufficiently specific allegations of any other particular behavior (rather than broad allegations of a general practice) that would provide the foundation for knowledge, actual or constructive, as to other instances of constitutional violations or, more significantly, wrongful convictions arising from this conduct. Thus, Plaintiff fails to allege facts to draw the necessary connection to hold Defendant Daughtry liable.
Plaintiff also fails to allege sufficiently the second element of inadequate response and deliberate indifference. In Safford, the plaintiff failed to allege sufficiently deliberate indifference where “there [we]re simply no allegations of documented abuse.”
Because Plaintiff fails to ■ allege sufficiently the first two predicate elements, it follows that there can be no causation. Thus, Plaintiffs Complaint, while filled with conclusory allegations,- has no factual allegation connecting the facts regarding the informant cultivation process, (see Compl. (Doc. 1) ¶ 83), and their alleged use ■in investigations and prosecutions, (see id. ¶ 84), beyond Plaintiffs case. This absence results in a failure to allege sufficiently supervisory, liability against Defendant Daughtry in his individual capacity.
Further, Defendants contend that Defendant Daughtry is protected from liability for the individual capacity claim against him in- Count III through the doctrine of qualified immunity. (Greensboro and Daughtry’s Br. (Doc. 19) at 17.)
“The doctrine of qualified immunity protects government officials ‘from liability for civil damages insofar as their conduct does, not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’ ” Pearson v. Callahan,
The 'timing of a determination of qualified immunity is also significant: “[B]ecause ‘[t]he entitlement-is an immunity from suit rather than a mere defense to liability,’ we repeatedly have stressed the importance of resolving immunity questions at the earliest possible stage in litigation.” Hunter,
Elaboration as to the second prong establishes that the “focus must be narrower, as the determination of whether a given right was clearly established requires us to- define that right ‘at a high level of particularity.’ ” Campbell v. Galloway,
[t]o ring the “clearly established’ bell, there need not exist a case on all fours with the facts at hand .... [as] ‘the nonexistence of a case holding the defendant’s, identical conduct to be unlawful does not prevent the denial of qualified immunity.” “Rather, the unlawfulness must be apparent in light of preexisting law.”
Hunter v. Town of Mocksville,
In assessing the two prongs of the qualified immunity analysis, it is in the district court’s discretion to decide which prong to address first, “in light of the circumstances in the particular case at hand.” Pearson,
Donaggio v. Arlington Cty.,
Donaggio provides a useful parallel to the issue of Brady and Giglio violations raised in the case at hand. Plaintiff’s allegations against Defendant Daughtry with respect to these alleged violations is that he failed to properly train, superase, or discipline detectives with respect to “the
Plaintiff further alleges that Defendant Daughtry’s supervisory failings implicated “the appropriate use of informants and information provided to detectives by informants” and that the detectives would take “reasonable steps to test the credibility of information received from informants[.]” (Compl. (Doc. 1) ¶¶ 196, 198-99.) Plaintiff entitles Section F of his Complaint, “The Greensboro Police Had a Policy and Practice of Relying On Informants Regardless of Their Credibility.” (Id. at 23.) He conclusorily alleges that “the GPD maintained an improper and unconstitutional custom, policy and practice of actively encouraging detectives to rely upon information from informants without regard to whether those informants were reliable or their information was truthful, and of condoning such conduct when it occurred.” (Id. ¶ 78.) The factual tie alleged between his conclusion — the custom, policy, and practice of relying on information on informants without regard to truthfulness — is merely the existence of “a large board on the wall at the police station to keep track of the number of informants each detective cultivated[,]” that did not discriminate with regard to the reliability of the informants. (Id. ¶ 79.) Beyond this specific factual allegation, the other tie is that the “GPD detectives and supervisors, including defendant Daughtry, knew or reasonably should have known” that GPD informants frequently came up with stories, largely through the newspaper accounts of crimes, to exchange for monetary reward or favorable treatment by the GPD. (Id. ¶83.) Based on these two, rather flimsy, factual allegations as ties, Plaintiff goes on to allege that Defendant Daughtry “either
An officer is not entitled to qualified immunity if he has violated a clearly established constitutional right. See Pearson,
Given that Plaintiffs claims against Defendants Whitt and Spagnola will largely proceed, there is the potential that during discovery with those defendants, and not a mere fishing expedition, Plaintiff will uncover evidence specifically tying to Defendant Daughtry and establishing the missing link here. For all of these reasons, this court will dismiss Count III against Defendant Daughtry in his individual capacity, but, the dismissal against Defendant Daughtry in his individual capacity, as based on his supervisory liability, will be without prejudice. However, this court cautions that baring some sort of link sufficient to overcome qualified immunity, it is unlikely that a future claim against Defendant Daughtry would stand.
D. Count IV Against Defendant City of Greensboro
’ Plaintiff contends that the City of Greensboro is liable because “Defendant Daughtry ha[d] final policymaking authority for the GPD and ... City of Greensboro with respect to law enforcement and criminal investigations[.]” (Compl. (Doc. 1) ¶205.) He argues that the “delegation of law enforcement authority to the Chief of Police is reflected throughout the City Charier and Code,” (Pl.’s Resp, to Counts III and IV (Doc. 27) at 17), and that language indicating that the Chief acts “under” the City Manager at most “indicates that the City Charier delegates the authority of the City Manager to the Chief of Police for the purpose of supervising the police,” (Id. at 19 (emphasis removed).) Defendants argue that (1) “Plaintiff has not alleged any improper decisions by Daughtry” and (2) “the GPD Chief is not a final policymaker for purposes of Section 1983.” (Greensboro and Daughtry’s Bi\ (Doc. 19) at 21.) They argue further that “Plaintiff does not allege a delegation of final policymaking authority,” (Greensboro and Daughtry’s Reply Br. (Doc. 32) at 19), and thus the Complaint is insufficient on its face. (See id. at 21-22.) Finally, they assert that “the City Charter confirms that
Municipalities cannot be held vicariously liable under § 1983 solely on a respondeat superior theory. Monell v. Dep’t of Soc. Servs.,
There are four ways these policies or customs can arise:
(1) through an express policy, such as a written ordinance or regulation; (2) through the decisions of a person with final policymaking authority; (3) through an omission, such as a failure to properly train officers, that-“manifests] deliberate indifference to the rights of citizens”; or (4) through a practice that is so “persistent and widespread” as to constitute a “custom or usage with the force of .law.”
Lytle,
The Fourth Circuit explains further:
“Policy” in this context implies most obviously and narrowly a “course of action consciously chosen from among various alternatives” respecting basic governmental functions, as opposed to episodic exercises of discretion in the operational details of government. Correspondingly, “policymaking authority” implies authority to set and implement general goals and programs of municipal government, as opposed to discretionary authority in purely operational aspects of government.
Spell,
It is possible that “policymak-ing responsibility is shared among more than one official or body.” City of St. Louis v. Praprotnik,
“[T]he identification of policy-making officials is a question of state law.” Praprotnik,
Plaintiff advances Barnett v. Karpinos,
Defendants put forth two Middle District cases finding that the Greensboro police chief did not have final policymaking authority: Alexander v. City of Greensboro,
Alexander v. City of Greensboro involved a suit by black police officers who worked for the Greensboro Police Department.
Fulmore v. City of Greensboro also involved a black police officer’s suit against the Greensboro Police Department and related defendants.
By contrast, in Spell,
[i]f the agency and the city manager possessed exclusive authority in the critical matters here in issue, the evidence clearly established that it was only a paper, formal authority, never effectively exercised before [the plaintiffs] ’injury to curb or countermand the authority in fact being exercised by [the Chief] and his subordinates in the police department .... [Municipal liability may not be avoided by such purely formal reservations of “final” authority.
Id. at 1397 (addressing an argument about the verdict submission form). When testimony established that the Chief took on his policymaking role and no evidence existed showing that his role or authority had ever, in fact, been checked by the City Manager, despite the paper reservation of authority, id. at 1394-95, Spell determined that actual policymaking authority rested with the police department, not the city manager. Id. at 1397. Thus, while final authority is a key factor, it must be true final authority, rather than pro forma, to avoid incurring municipal liability;
In this case, Plaintiff argues that the Chief of Police is a delegated municipal policymaker with respect to law enforcement authority, (gee, e.g., Pl.’s Resp. to Counts III and IV (Doc. 27) at 17.) While the City of Greensboro cannot use a reservation of final authority to the City Manager as a procedural quirk to avoid municipal liability, any final policymaking authority delegated to another actor, such as the Chief, must be true final policy-making authority, rather than mere poli-cymaking authority or general decision-making or implementation authority. As argued by Defendants, the phrase “in consultation with,” from Barnett, implies a more cooperative process than that envisioned by the Greensboro City Charter, which uses the phrase “acting under the city manager.” Greensboro, N.C., Charter ch. IV, subch. A, art. 4, § 4.31 (1967); see also Barnett,
IV. CONCLUSION
For the reasons stated herein,
IT IS THEREFORE ORDERED that Defendants City of Greensboro and Daughtry’s motion to dismiss (Doc. 18) is GRANTED IN PART and Counts III and IV are DISMISSED WITHOUT PREJUDICE and DENIED IN PART with respect to Defendants’ arguments concerning the release.
Notes
. Further, this court held a telephone conference with the parties on May 12, 2016, regarding the current status of this case.
. Plaintiff alleges that Blackwell frequently called Defendant Spagnola to offer information about criminal activity, in exchange for which he sought money. (Id ¶ 28.)
. Plaintiff alleges that Defendants Whitt and Spagnola have admitted the existence of this practice in the years between July 1988 and August 1995. (Id. ¶ 80.)
. On March 31, 2016, this court issued a Memorandum Opinion and Order addressing Defendants Spagnola and Whitt's Motions to Dismiss (Docs. 20, 22). That Opinion and Order incorporated the reasoning with respect to the release analysis set forth in this Memorandum Opinion and Order.
. All citations in this Memorandum Opinion and Order to documents filed with the court refer to the page numbers located at the bottom right-hand corner of the documents as they appear on CM/ECF.
. Defendants argue that the Complaint does allege the pardon of innocence, which established Plaintiff's’ eligibility for the North Carolina Industrial Commission process, from which the release arose. (Greensboro and Daughtry's Br. (Doc, 19) at 9 n.4 (citations omitted),) Such an inferential basis does not satisfy the standard set out by the Fourth Circuit requiring "all facts necessary” to be "on the face of the complaint.” Goodman,
. In Spell v. McDaniel,
[t]he requisite causal connection can be established not only by direct personal participation, but also by failure to perform an act which is legally required or by "setting in motion a series of acts by others which the actor knows or reasonably should know would cause others to inflict the constitutional injury.”
Id, (citations omitted). Spell ruled on a motion to dismiss many years prior to Twombly and Iqbal. In the end, the court rejected the argument that the allegation óf "breach of their basic duties to properly train, supervise, investigate and discipline” constituted "a disguised respondeat superior claim,” Id. at 1109-10.
. This conclusion is further supported by Plaintiff's own Complaint, given the title and focus for Count III. (Compl. (Doc. 1) at 56 (alleging liability "For Failing to Establish a Constitutionally Adequate Regime of Training, Supervision, and/or Discipline .,. ”).)
. For purposes of illustration, in Campbell v. Galloway,
. There are no allegations of this sort beyond, as is alleged, in Plaintiffs own criminal case. (See Compl, (Doc. 1) ¶¶ 97-100.)
. As for the basic requirements of a § 1983 claim, plaintiffs
must show [or, at this stage, allege] that (1) they were deprived of a federal statutory or constitutional right; and (2) the deprivation was committed under color of state law.... However, not every deprivation of a constitutional right will lead to municipal liability. Only in cases where the municipality . causes the deprivation "through an official policy or custom" will liability attach.
Lytle, 326 F,3d at 471 (citations omitted).
. In Riddick v. School Board of City of Portsmouth,
[T]he key is the final policy making. The key here is final. It is not just policy making, the school board can say to the superintendent, develop a policy. But that policy still then has to be approved by the school board. In other words, it is -not just who can make policy .... [I]t is ultimately in the scheme of things who has the final say-so.
Id. at 524 (citation omitted) (alterations in original). The court then concluded that "[bje-cause the Board retained the final ‘say-so’ on personnel matters, Judge Smith correctly concluded that the Board cannot be subjected to municipal liability based on the decisions of the superintendent and principal.” Id.
. Spell is a Fourth Circuit decision with respect to 42 U.S.C. § 1983 that occurred after the plaintiff, Spell, had two trials against the City of Fayetteville and a City police officer for physical injuries he received while in custody. 824 F.2d at. 1383. The question of policymaking authority arose in context of the court’s discussion of the City of Fayetteville’s municipal liability. IcL at 1395-99 (in verdict form context).
. Additionally, to the extent Alexander and Fulmore may arguably be distinguished on their facts from the case at hand, as those two cases addressed employer-employee matters, the contrast with Spell shows that the requirement that an individual have actual poli-cymaking authority is meaningful, and thus these cases are, at the least, illustrative of situations where authority is insufficient, despite partial delegation. See Alexander,
. This court notes the quandary of dismissing the official capacity claim against Defendant Daughtry as duplicative of Plaintiff's claim against Defendant City of Greensboro and, then, dismissing the claim against Defendant City of Greensboro as well. While initially perplexing, the rationale is as follows: as explained above, a suit against Defendant Daughtry in his official capacity is in fact a suit against the municipality and thus appropriately dismissed as duplicative. The issues with’ the suit against Defendant City 'of Gréensboro derive from the failure allege an official policy as delineated in the four options under Lytle,