Bobby Durelle Robinson v. Officer FNU McLamb et al.

Opinion

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

BOBBY DURELLE ROBINSON, ) ) Plaintiff, ) ) v. ) 1:24CV809 ) OFFICER FNU MCLAMB et al. , ) Defendants. )

MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

Officer FNU McLamb with the Mount and $400,000 in punitive damages Airy Police Department arrested against each defendant. Bobby Durelle Robinson on an outstanding warrant for failure to The defendants have moved to appear in October 2021. McLamb dismiss the complaint on two bases: placed Robinson in handcuffs behind failure to establish personal his back and transported him to the jurisdiction and failure to state a police station. Once there, Robinson claim. See Def. Mot. to Dismiss, refused to get out of the car. He alleges Docket Entry 10; Def. Mem. of Law in that McLamb then pulled him out of Support of Mot. to Dismiss (“Mem. in the car and threw him face first into Supp.”), Docket Entry 11. the asphalt, requiring ten stitches. The defendants are correct insofar Robinson has sued McLamb, that Robinson did not establish Sergeant FNU Evans, and the Mt. Airy personal jurisdiction.1 Accordingly, “Police Chief” in their individual and for the reasons set forth below, the official capacities related to this Court should grant the defendants’ incident, claiming a violation of his motion to dismiss but do so without Eight Amendment rights pursuant to prejudice. 42 U.S.C. § 1983. See generally Compl., Docket Entry 2. He seeks compensatory damages of $400,000

1 The defendants are correct that he has Fourteenth Amendment claim, and both not alleged an Eighth Amendment claim; sound in Section 1983 liability. however, he has alleged a viable I. FACTS Id. McLamb then transported Robinson to the Surry County Jail. Id. All well-pled facts are accepted as true and considered in the light most Robinson alleges that Sergeant Evans favorable to the plaintiff. See Nemet did not punish McLamb for his use of Chevrolet, Ltd. v. force and did not properly train Consumeraffairs.com, Inc., 591 F.3d McLamb on arrest procedures. See id. 250, 255 (4th Cir. 2009) (citation at 7. He further alleges that the MAPD modified). police chief did not punish Sergeant Evans or McLamb and that he failed On October 21 or 22, 2021,2 Officer to train both of them on proper arrest McLamb with the Mount Airy Police procedures. Id. Department (MAPD) approached Robinson on the street in Mount Airy Robinson alleges that, in addition to with an OFA “failure to appear” for the stitches he received, he suffers child support. See Compl. at 6. from depression, anxiety, and post- McLamb detained Robinson and a traumatic stress disorder arising from female officer arrived at the scene. See this encounter. See id. at 9. id. McLamb placed Robinson in the back seat of his car and drove to the II. PROCEDURAL Mount Airy police station. Id. HISTORY When they arrived, Robinson asked Robinson filed the complaint along McLamb why they were there, with an application to proceed in because the “jail is in Dobson.” See id. forma pauperis on September 19, McLamb responded that he had to get 2024. See Docket Entries 1, 2. After Robinson’s warrant from upstairs. Id. Robinson noticed his change of Robinson said, with his hands cuffed address, indicating he was no longer behind his back, “I don’t wanna go in in custody, the magistrate judge there.” See id. McLamb then “rip[ped granted the application with the Robinson] from the jeep face first into caveat that he file an updated the asfault [sic],” picked him up, and application and complete summons walked him into the station. Id. forms for each defendant mailed by the Clerk and return them thereto. See There, they saw Sergeant Evans, who Docket Entry 6. Robinson refiled the said that Robinson needed to go to the application and the magistrate judge hospital. See id. At the hospital, granted it, again with the directive Robinson received seven stitches to regarding completion of summons his forehead and three under his nose. with an address suitable for service. See Docket Entries 7, 8.

2 The Complaint alleges the events filed a supplement indicating that it took occurred on October 21 or 22 in 2001, see place in 2021, see Docket Entry 4. Compl. at 4; however, Robinson later Robinson completed the summons, summons and of the complaint, identifying Evans as “Officer Evans registered or certified mail, return (Sgt.?)” with an address of MAPD, 150 receipt requested, addressed to its Rockford Street, Mount Airy NC mayor, city manager or clerk; or by 27030. He identified McLamb as depositing with a designated delivery “Officer McLamb,” again with the service authorized pursuant to 26 same mailing address as Evans. U.S.C. § 7502(f)(2) a copy of the Finally, he identified the MAPD police summons and complaint, addressed chief as “Police Chief,” again with the to the mayor, city manager, or clerk”). same mailing address as Evans and McLamb. See Docket Entry 9. The burden lies with the plaintiff to establish personal jurisdiction. See III. MOTION TO DISMISS Bartholomew v. Va. Chiropractors FOR LACK OF Ass’n, Inc., 612 F.2d 812, 816 (4th PERSONAL Cir.1979), overruled on other JURISDICTION grounds by Union Labor Life Ins. Co. v. Pireno, 458 U.S. 119 (1982). Federal Rule of Civil Procedure 4(e) “Although the plaintiff must outlines the appropriate methods for ultimately demonstrate personal effecting service of process: following jurisdiction by a preponderance of the state law for serving a summons that evidence either at trial or in a pretrial governs in the location of the federal evidentiary hearing, New Wellington district court; delivering the Fin. Corp. v. Flagship Resort Dev. summons and complaint to party Corp., 416 F.3d 290, 294 n. 5 (4th Cir. personally; leaving a copy of the same 2005), when no evidentiary hearing is “at the individual’s dwelling or usual held, the plaintiff may satisfy its place of abode with someone of burden simply by making a prima suitable age and discretion who facie showing of personal jurisdiction, resides there”; or delivering a copy of Consulting Eng’rs Corp. v. Geometric the same to “an agent authorized by Ltd., 561 F.3d 273, 276 (4th Cir. appointment or by law to receive 2009).” IHFC Props., LLC v. APA service of process.” See id. Mktg., Inc., 850 F. Supp. 2d 604, 615 (M.D.N.C. 2012). Relevant here, Rule 4(j) provides for service on local government by The court, in making this delivering the items to the chief determination, must accept all facts executive officer or in a manner alleged in the complaint as true and otherwise prescribed by state law. See draw all reasonable inferences id.; see also N.C. R. Civ. P. 4(j)(5)(a) therefrom in the plaintiff’s favor. (service effected on a city, town, or village by “personally delivering a “Absent waiver or consent, a failure to copy of the summons and of the obtain proper service on the complaint to its mayor, city manager defendant deprives the court of or clerk; by mailing a copy of the personal jurisdiction over the defendant.” Koehler v. Dodwell, 152 2) Whitaker is not the chief executive F.3d 304, 306 (4th Cir. 1998) (citation officer, mayor, manager, or clerk for omitted). In North Carolina, “a return the City of Mount Airy; of service showing service on its face constitutes prima facie evidence of 3) None of the defendants were asked service. A defendant can overcome the to waive process, nor did they; and presumption of valid service with the 4) the MAPD station is not the ‘affidavits of more than one person dwelling or usual place of abode for showing unequivocally that proper McLamb, Evans, or the MAPD police service was not made upon the person chief. of the defendant.’” See Davis v. Jones, No. 5:12-CV-143-RJC, 2013 WL See Docket Entries 9, 11-1, 11-2, 11-3, 4494713, at *2 (W.D.N.C. Aug. 19, 11-4. 2013) (quoting and citing Grimsley v. Nelson, 467 S.E.2d 92, 94 (N.C. The defendants, through these 1996)). See also IHFC Props., LLC v. submissions, have rebutted the APA Mktg., Inc., 850 F. Supp. 2d 604, presumption of proper service. And, 616 (M.D.N.C. 2012) (the court may because Robinson has not served the also consider “matters outside the defendants “by any of the methods pleadings when assessing a motion to permitted under Rule 4 of either the dismiss for lack of personal Federal Rules of Civil Procedure or jurisdiction, although the court must the North Carolina Rules of Civil continue to draw all reasonable Procedure,” Davis v. Jones, No. 5:12- inferences in the light most favorable CV-143-RJC, 2013 WL 4494713, at *3 to the plaintiff”). (W.D.N.C. Aug. 19, 2013), it is recommended that the Complaint be Here, Robinson listed the MAPD dismissed without prejudice for lack street address as the service location of personal jurisdiction pursuant to for all defendants, in their official and Rule 12(b)(2) of the Federal Rules of individual capacities. See Docket Civil Procedure.” Entry 9. The defendants have appended to their motion to dismiss IV. MOTION TO DISMISS affidavits confirming that: FOR FAILURE TO STATE A CLAIM 1) on September 5, 2025, a deputy United States Marshal hand delivered The defendants argue, in the four packets of documents, one of alternative, that the motion should be which was a duplicate, to MAPD dismissed for failure to state a claim, Captain Travis Whitaker, comprising pursuant to Federal Rule of Civil of a civil summons, the Court’s July Procedure 12(b)(6). Here, the Court 15, 2025 order, and a copy of the already conducted an initial review of Complaint and the supplement Robinson’s complaint pursuant to 28 correcting the date of the alleged U.S.C. § 1915(e)(2) and determined incident; that his allegations survived initial review. See Docket Entries 6, 8. The standard of review for dismissal under Section 1915(e)(2) is the same as the standard under Rule 12(b)(6). De’Lonta v. Angelone, 330 F.3d 630, 633 (4th Cir. 2003). While the motion would be moot should the Court adopt the recommendation of the undersigned of dismissal based on_ insufficient service of process, the recommendation is dismissal without prejudice. Thus, should Robinson refile this complaint and properly serve the defendants, dismissal pursuant to Rule 12(b)(6) would not be warranted. V. CONCLUSION IT IS HEREBY RECOMMENDED that the Court GRANT the defendants’ Motion to Dismiss, without prejudice, based on lack of personal jurisdiction. SAUL na Gibs@n McFadden United States Magistrate Judge July 27, 2026