Alexander v. City of Greensboro (762 F. Supp. 2d 764, 2011)

MEMORANDUM OPINION AND ORDER

THOMAS D. SCHROEDER, District Judge.

TABLE OF CONTENTS

I. BACKGROUND...........................................................776

II. ANALYSIS ...............................................................779

A. Standard for Rule 12(b)(6) Motions.......................................780

B. Federal Claims.........................................................781

1. City of Greensboro..................................................781

a. 42 U.S.C. §§ 1981 and 1983 (Counts II, V)..........................781

i. Municipal Policy............................................781

ii. Municipal Custom...........................................783

iii. Proposed SAC..............................................783

b. Conspiracy and 42 U.S.C. § 1981 (Count III) .......................784

c. 42 U.S.C. § 1985(3) (CountV) ....................................785

2. Defendant Wade....................................................785

a. Official Capacity Claims..........................................785

b. 42 U.S.C. § 1983 (CountV)................................... 786

e. 42 U.S.C. § 1985(3) (Count V) ................................ 787

3. GPD Defendants (Wray, Brady, and Sanders) ...................... 788

a. Official Capacity Claims...................................... 788

b. 42 U.S.C. § 1981 (Count II) .................................. 789

i. Domino’s Pizza, Inc. v. McDonald......................... 789

ii. The “Plausibility” Standard.............................. 791

(a) . All Plaintiffs...................................... 792

(1) Disparate Treatment........................... 792

(2) Hostile Work Environment...................... 794

(b) . Plaintiff Steven A. Evans........................... 795

(e). Plaintiff Lawrence Alexander Jr..................... 796

(d) . Plaintiff Antuan Hinson............................ 797

(e) . Plaintiff Brian James.............................. 797

(f) . Plaintiffs Rankin and Patterson..................... 798

(1) Discussion of Personnel Information.............. 798

(2) Discriminatory Investigation .................... 799

(g) . Plaintiffs Cuthbertson and Rankin.................. 799

(1) Fake Investigations........................... 799

(2) Undercutting of Plaintiffs’ Investigation........... 799

(h) . Plaintiff Joseph Pryor.............................. 799

(1) Improper Administrative Pressure............... 799

(2) Potential Improper Investigation................ .801

(i) . Plaintiff William A. Phifer......................... 801

Cj). Plaintiff Stephen L. Hunter........................ 801

(1) Inappropriate Discipline........................ 801

(2) Retaliatory Investigation........................ 802

(k) . Plaintiff Steven Snipes............................. 802

(l) . “Assistant Chief Stevenson”....................... 803

(m) . Summary ....................................... ,803

c. Conspiracy and 42 U.S.C. § 1981 (Count III).................. ,803

d. 42 U.S.C. §§ 1983 and 1985(3) (Count V)...................... ,804

i. 42 U.S.C. § 1983 (CountV).............................. ,805

(a) . First and Fifth Amendments....................... ,805

(b) . Fourth Amendment .............................. ,806

(c) . Due Process..................................... .806

(d) . Equal Protection................................. .807

(e) . Summary ....................................... .808

ii. 42 U.S.C. § 1985(3) (CountV)........................... .808

C. State Claims...................................................... .809

1. Breach of Contract (Count I).................................... ,809

2. North Carolina Equal Employment Practices Act (Count IV)........ .810

3. Invasion of Privacy (Count VI)................................... .811

a. City of Greensboro......................................... .811

b. Defendant Wade........................................... .812

c. GPD Defendants........................................... .817

4. Tortious Interference with Prospective Economic Advantage (Count VII)........................................................ .818

5. Gross Negligence (Count VIII).................................. .822

a. City of Greensboro......................................... .822

b. Defendant Wade........................................... .822

c. Defendants Wray and Brady ................................ .823

6. Civil Conspiracy (Count IX)..................................... .824

D. Injunctive Relief (“Count IX [sic]”) .................................. .824

E. Summary......................................................... .825

III. CONCLUSION....................................................... .825

This matter is before the court on various motions to dismiss filed by Defendants Randall Brady (“Brady”) and Scott Sanders (“Sanders”) (Doc. 22), David Wray (“Wray”) (Doc. 24), the City of Greensboro (“the City”) (Doc. 27), and Trudy Wade (“Wade”) (Doc. 29). Plaintiffs oppose each motion. Additionally, Plaintiffs have filed a motion to amend the complaint again (Doc. 32), which all Defendants oppose. For the reasons below, the motions are granted in part and denied in part.

I. BACKGROUND

This action was originally commenced in the Superior Court for Guilford County (North Carolina) on January 9, 2009. Plaintiffs filed an amended complaint (“Amended Complaint”) dated March 13, 2009 (Doc. 5), and the City removed the case to this court on April 17, 2009.

The Amended Complaint sets forth certain allegations, which are supplemented and expanded on by the proposed Second Amended Complaint (“SAC”) (Doc. 32, Ex. 1). Because all allegations in the SAC must be considered to determine whether the proposed amendment would be futile, the court here will summarize all the factual allegations as contained in both complaints. For purposes of the motions to dismiss, the court will view all allegations in the light most favorable to Plaintiffs as the non-moving parties. Ibarra v. United States, 120 F.3d 472, 474 (4th Cir.1997).

Plaintiffs are all African-American/black police officers employed by the Greensboro Police Department (“GPD”) when Defendant Wray was promoted to Chief of Police and Defendant Brady to Deputy Chief. Defendant Sanders was assigned to GPD’s Special Investigation Division (“SID”), referred to as the Special Intelligence Section in the SAC. Wray, Brady and Sanders are white.

After their promotions, Wray and Brady allegedly directed subordinate officers to gather pictures of black GPD officers for line-up books and other visual aids that were sometimes referred to as the “Black Book.” Plaintiffs contend, upon information and belief, that their photographs, likenesses, or names were included in at least one version of the Black Book, which Sanders and other non-black officers showed on numerous occasions to the general public and criminal suspects in an effort to implicate black GPD officers in wrongdoing. Plaintiffs allege that the Black Book was not compiled or used for any legitimate investigatory purpose.

According to Plaintiffs, Defendants Wray, Brady, Sanders, and the City improperly used the SID, which was created to investigate groups like the Ku Klux Klan and street gangs, to investigate black GPD officers, including Plaintiffs, even though the GPD had a Criminal Investigation Division (“CID”) whose purpose was to investigate officer misconduct. Wray and Brady instructed Sanders and other non-black SID officers to investigate black GPD officers numerous times without following GPD standards. On several occasions, they allegedly investigated black GPD officers and their families despite no complaints having been made against the officers. When third parties alleged misconduct by GPD officers, moreover, Sanders and the SID unit targeted only the black officers involved. Upon instructions of Wray and Brady, and contrary to GPD policy, black officers were allegedly investigated without any reasonable suspicion of unlawful conduct in order to test the officers’ honesty and to entrap them. Plaintiffs claim that the actions of SID officers, under the direction of Wray and Brady, created an atmosphere of fear, distrust, and suspicion and undermined the morale of the GPD.

Plaintiffs allege generally that Wray, Brady, and the City “repeatedly, intentionally, and continuously” failed to promote black GPD officers to positions for which they were qualified and should have been promoted, although no instance of a Plaintiff being denied a promotion is alleged. (Doc. 5 ¶ 82; Doc. 32, Ex. 1 ¶ 106.) Plaintiffs allege that even in cases where black GPD officers were promoted (Plaintiffs identify two such officers), such promotions were made only to suggest the appearance of equal treatment. Plaintiffs also allege generally that black GPD officers were “frequently and typically denied opportunities and benefits afforded to other officers,” although Plaintiffs allege only facts relating to (1) a denial of reimbursement of expenses for Plaintiff Steven A. Evans (“Evans”) for his attendance at a marksmanship certification program and (2) Wray’s designation of white officers, instead of Evans, as marksmanship instructors at local community colleges and/or the Greensboro Police Academy. (Doc. 5 ¶ 85; Doc. 32, Ex. 1 ¶ 109.)

Plaintiffs allege that Wray and the City “on numerous occasions violated the North Carolina Personnel Privacy Act in an effort to embarrass, intimidate, and/or discredit” black GPD officers, citing a June 2005 meeting with the Greensboro Police Officers Association during which “Wray publicly discussed the details of investigations into allegations of criminal conduct, identifying by name various black officers of the [GPD] in connection with such investigations.” (Doc. 5 ¶ 90.) Even after their resignations, Wray and Brady allegedly routinely disclosed personnel information of black GPD officers to a news reporter. (Id.; see Doc. 5-2 ¶ 120; Doc. 34 at 7.) Plaintiffs also allege that Wray, Brady, and others in management positions within the GPD instituted, ratified, or approved of these discriminatory acts and that race “was at least a motivating factor for each of the unlawful employment practices described herein.” (Doc. 5 ¶¶ 86, 88.)

On or about November 11, 2005, the City retained Risk Management Associates (“RMA”), a consulting firm, to investigate allegations brought to the City’s attention about Wray, Brady, and Sanders. (Doc. 32, Ex. 1 ¶ 96.) RMA interviewed 52 GPD officers and law enforcement officials as part of its review and on December 11, 2005, issued a report (“RMA Report”) that allegedly found that “the GPD engaged in a number of illegal and or improper practices” that included “disparate treatment of African-Americans,” “the appearance of racial targeting/discrimination,” and “failure to follow procedures.” (Id. ¶¶ 98-99.)

Plaintiffs allege that at the direction of Wray and Brady, Sanders placed keystroke-monitoring devices on the computers “of numerous Plaintiffs and other African-American officers of the [GPD]” without just cause. (Id. ¶ 101.) Plaintiffs identify only Plaintiff Antuan Hinson (“Hinson”), however, as one whose computer was allegedly monitored for keystrokes to determine a password to allow Sanders to enter his email account and download around one year of his emails. (Id.)

Plaintiffs also allege that “on numerous occasions” Wray disparately disciplined black GPD officers and pressured subordinates to alter findings and evaluations “in order to make such determinations less favorable to African-American officers of the [GPD].” (Id. ¶¶ 92-93.) The SAC alleges as “examples,” however, only instances relating to Plaintiffs William A. Phifer (“Phifer”) and Stephen L. Hunter (“Hunter”). (Id. ¶¶ 93-94.) The SAC also alleges that Plaintiffs Brian James (“James”) and Lawrence Alexander Jr. (“Alexander”) were interrogated by Sanders as part of criminal investigations, although the conduct being investigated allegedly did not warrant criminal questioning. (Id. ¶ 95.)

Ultimately, the City accepted the resignations of Wray (sometime in January 2006) and Brady (date not alleged). (See id. ¶ 91.) Thereafter, the City Attorney’s office conducted its own review and issued a report (“City Legal Report”). (Id.) Pages two through forty-four are attached to the SAC. (Id. (City Legal Report) at 36-78.) The City Legal Report details the findings of the City Attorney’s office as to the circumstances alleged by the Plaintiffs herein and provides additional instances of alleged wrongful conduct directed toward certain GPD officers. Suffice it to say, however, the vast majority of the Plaintiffs are not mentioned in the City Legal Report (those few who are mentioned are addressed more specifically in the court’s analysis to follow).

On or about March 4, 2008, in an effort to resolve Plaintiffs’ complaints resulting from Defendants’ alleged racially motivated actions, the acting Greensboro City Attorney drafted and required Plaintiffs and the City to sign a Stipulation of Confidentiality (“Stipulation”). Plaintiffs and the City agreed that all discussions related to resolving their disputes would be held strictly confidential and would not be disclosed to third parties for any reason. The Stipulation was signed by Plaintiffs, the City Attorney, and the Mayor of Greensboro. On or about October 21, 2008, the City Council held a meeting in closed session to discuss Plaintiffs’ claims. No Plaintiff, representative of Plaintiffs, or media outlet was present. As a result of the meeting, the City submitted a written offer to settle Plaintiffs’ claims for a specific monetary amount.

Plaintiffs contend that, “in an effort to derail the settlement,” Defendant Wade, an elected member of the Greensboro City Council, invited and encouraged a reporter for the Rhino Times, a weekly newspaper with circulation in Greensboro, to submit a “purported” public records request for the settlement information, which the reporter did. (Doc. 5 ¶¶ 100-03.) Plaintiffs claim that Wade provided the reporter Plaintiffs’ names (received through Wade’s own “purported” public records request) and the monetary amount offered by the City, which was not publicly available but had been revealed to Wade in her capacity as a Greensboro City Council member. (Id. ¶ 102.) According to Plaintiffs, the City Attorney had refused to provide City Council members with Plaintiffs’ identities because they had filed a discrimination complaint with the EEOC, which allegedly constituted confidential personnel information under state law, and because such information was protected by the Stipulation. On November 13, 2008, the reporter published an article in the Rhino Times that identified all Plaintiffs by name and the monetary amount of the City’s offer.

Following the article’s publication, numerous constituents unhappy with the proposed offer contacted Greensboro City Council members. On or about November 18, 2008, the City Council held a scheduled meeting during which members of the public expressed disapproval of the monetary sum offered to Plaintiffs. Thereafter, the City Council met in closed session without the Mayor and allegedly voted to rescind the offer made to Plaintiffs. The next day, the City Attorney informed Plaintiffs’ counsel of the rescission.

Plaintiffs now bring the following claims: (Count I) breach of contract based on the Stipulation (against the City); (Count II) discrimination on the basis of race under 42 U.S.C. § 1981 (against the City, Wray, Brady, and Sanders); (Count III) conspiracy to discriminate on the basis of race under section 1981 (against the City, Wray, Brady, and Sanders); (Count IV) discrimination in employment under the N.C. Equal Employment Practices Act (against all Defendants); (Count V) violations of civil rights under 42 U.S.C. §§ 1983 and 1985(3) (against all Defendants); (Count VI) invasion of privacy (against all Defendants); (Count VII) tortious interference with prospective economic advantage (against Wade); (Count VIII) gross negligence (against the City, Wray, Brady, and Wade); and (Count IX) civil conspiracy (against Wray, Brady, Sanders, and Wade). Plaintiffs seek compensatory and punitive damages as well as injunctive relief (“Count IX [sic]”).

After all Defendants had filed motions to dismiss (and after four of the five Defendants had filed answers), Plaintiffs moved for leave to file the SAC. (Doc. 32.) Defendants oppose the motion to amend as futile.

II. ANALYSIS

Plaintiffs acknowledge that they may amend their complaint again “only with the opposing party’s written consent or the court’s leave.” Fed.R.Civ.P. 15(a)(2). “The court should freely give leave when justice so requires.” Id. Leave to amend will be denied only if (1) the amendment would prejudice the opposing party, (2) there is bad faith on the part of the moving party, or (3) the amendment would be futile. Laber v. Harvey, 438 F.3d 404, 426 (4th Cir.2006) (en banc).

Plaintiffs argue that they are entitled to file the SAC because the new allegations arise out of the same conduct and occurrences set forth in the original pleadings. Plaintiffs claim that the amendment will not prejudice Defendants, since discovery has not yet begun, no Local Rule 16.1(b) meeting of the parties has occurred, no initial disclosures have been made pursuant to Federal Rule of Civil Procedure 26, and no trial date has been set. Finally, Plaintiffs contend that the proposed amendment is neither futile nor made in bad faith.

Defendants oppose the amendment on grounds of futility. They contend that Plaintiffs’ Amended Complaint does not survive their motions to dismiss and that the proposed SAC contains nothing that will save it from those same motions. See Perkins v. United States, 55 F.3d 910, 917 (4th Cir.1995) (noting that “the district court was justified in denying [plaintiffs] motion to amend her complaint because the proposed amendments could not withstand a motion to dismiss”).

Because Defendants’ motions to dismiss are closely related to their futility arguments, and because the parties have fully briefed the motions to dismiss and Plaintiffs’ motion to amend, the court will consider all these motions together as it analyzes each of Plaintiffs’ claims.

A. Standard for Rule 12(b)(6) Motions

A motion to dismiss for failure to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6) “challenges the legal sufficiency of a complaint ... considered with the assumption that the facts alleged are true.” Francis v. Giacomelli, 588 F.3d 186, 192 (4th Cir.2009) (citations omitted). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, — U.S. -, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). This “plausibility standard” requires that the plaintiff “articulate facts ... that ‘show’ that the plaintiff has stated a claim entitling him to relief.” Francis, 588 F.3d at 193 (citing Iqbal, 129 S.Ct. at 1949). Legal conclusions in a complaint are not entitled to the assumption of truth. Iqbal, 129 S.Ct. at 1949-50. If the “well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged— but it has not ‘show[n]’ — ‘that the pleader is entitled to relief.’ ” Id. at 1950 (alteration in original) (quoting Fed.R.Civ.P. 8(a)(2)).

Employment discrimination claims carry no heightened pleading standard, see Twombly, 550 U.S. at 569-70, 127 S.Ct. 1955, nor must an employment discrimination complaint contain specific facts establishing a prima facie case, Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510-11, 515, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002). Yet the Fourth Circuit has not interpreted Swierkiewicz as removing the burden of a plaintiff to plead facts sufficient to state all the elements of his claim. Bass v. E.I. DuPont de Nemours & Co., 324 F.3d 761, 764-65 (4th Cir.2003) (holding that the plaintiff failed to allege facts sufficient to support all the elements of her hostile work environment claim); see also Jordan v. Alt. Res. Corp., 458 F.3d 332, 346-47 (4th Cir.2006) (affirming the dismissal of a 42 U.S.C. § 1981 discrimination claim because the complaint did not allege facts supporting the assertion that race was a motivating factor in the plaintiffs termination). As is seen below, the court’s task is made more difficult by the Amended Complaint’s (and SAC’s) inclusion of forty-apparent Plaintiffs under circumstances where most factual allegations, where they have any specificity, are related only generally or (as in most eases) not at all to any particular Plaintiff.

B. Federal Claims

Plaintiffs’ Amended Complaint and SAC both contain three counts under federal law: (1) discrimination on the basis of race under 42 U.S.C. § 1981 (Count II); (2) conspiracy to discriminate on the basis of race under section 1981 (Count III); and (3) violations of civil rights under 42 U.S.C. §§ 1983 and 1985(3) (Count V), which can be analyzed as two separate claims. The claims against each Defendant will be considered in turn: (a) Defendant City of Greensboro; (b) Defendant Wade; and (c) Defendants Wray, Brady, and Sanders (collectively “GPD Defendants”), who all present the same arguments.

1. City of Greensboro

a. 42 U.S.C. §§ 1981 and 1983 (Counts II, V)

Although Plaintiffs do not mention section 1983 in their section 1981 claim, “when suit is brought against a state actor, § 1983 is the ‘exclusive federal remedy for violation of the rights guaranteed in § 1981.’” Dennis v. Cnty. of Fairfax, 55 F.3d 151, 156 (4th Cir.1995) (quoting Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 733, 109 S.Ct. 2702, 105 L.Ed.2d 598 (1989)). Because the requirements of section 1983 must therefore be satisfied for a section 1981 claim to prevail, id., Plaintiffs’ section 1981 and 1983 claims will be considered together.

Both claims rest entirely upon the allegedly wrongful actions of Wray, Brady, Sanders, Wade, and unnamed non-black GPD employees. However, a municipality cannot be held liable under section 1983 on a respondeat superior theory. Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691-92, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Rather, “[t]o state a cause of action against a municipality, a section 1983 plaintiff must plead (1) the existence of an official policy or custom; (2) that the policy or custom is fairly attributable to the municipality; and (3) that the policy or custom proximately caused the deprivation of a constitutional right.” Pettiford v. City of Greensboro, 556 F.Supp.2d 512, 530 (M.D.N.C.2008) (citing Jodan ex rel. Jordan v. Jackson, 15 F.3d 333, 338 (4th Cir.1994)). Municipal policy can be found in (1) written ordinances and regulations, (2) affirmative decisions of policymaking officials, or (3) omissions by policymaking officials “that manifest deliberate indifference to the rights of citizens.” Carter v. Morris, 164 F.3d 215, 218 (4th Cir.1999). A municipal custom may arise “if a practice is so ‘persistent and widespread’ and ‘so permanent and well settled as to constitute a “custom or usage” with the force of law.’ ” Id. (quoting Monell, 436 U.S. at 691, 98 S.Ct. 2018).

Plaintiffs raise two arguments in favor of the existence of a municipal policy or custom: (1) that Wray, Brady, and Sanders had final policymaking authority in connection with the actions allegedly taken against Plaintiffs (see Doc. 5, ¶ 70; Doc. 5-2, ¶¶ 135, 144); and (2) that a municipal custom arose from a “persistent and widespread” practice.

i. Municipal Policy

Plaintiffs allege that Wray, Brady, and Sanders had “actual or de facto final policy-making authority in connection with the adverse personnel actions described” in the Amended Complaint. (Doc. 5-2, ¶ 144; see also id. ¶ 135.) However, in Greensboro Professional Fire Fighters Ass’n, Local 3157 v. City of Greensboro, 64 F.3d 962 (4th Cir.1995), the Fourth Circuit held that under the Greensboro City Ordinance “only the City Manager and the City Council possess the authority to fashion policy with regard to employer-employee relations in all city departments.” Id. at 965. The court further held that although the Greensboro Fire Chief had final decisionmaking authority to appoint captains and to establish procedures for those appointments, he did not have “policymaking” authority. Id. at 965-66. Rather, the Fire Chiefs powers were “always subject to the parameters established by the City.” Id. The court cautioned against confusing “the authority to make final policy with the authority to make final implementing decisions.” Id. at 966; see also Robinson v. Balog, 160 F.3d 183, 190 (4th Cir.1998) (“The fact that [the director of the Baltimore Department of Public Works] had the power to choose whom to hire, promote, discharge, and transfer within the department he directed simply cannot establish that he had the broader authority to craft municipal policy.”).

The Amended Complaint alleges facts showing that Wray, Brady, and Sanders had power to make many (perhaps most) decisions about the operation of the GPD and the SID. But it contains no factual allegations supporting a reasonable inference that this power rose to the level of municipal “policymaking.” Instead, it contains only the bare assertion (repeated for emphasis) that Wray, Brady, and Sanders had “final policy-making authority.” For example, Plaintiffs allege that Sanders was “in effect delegated with policy-making authority [by Wray and Brady] with respect to investigations of black officers.” (Doc. 5 ¶ 70.) Plaintiffs allege no facts to suggest why the holding in Fire Fighters Ass’n should not apply in this case. Importantly, there is no allegation that the Greensboro City Council or City Manager delegated final policymaking authority over employer-employee relations to Wray, Brady, or Sanders.

Plaintiffs seek to distinguish Fire Fighters Ass’n on the ground that it was decided on summary judgment, noting the court’s statement that “[t]here is no evidence in the record that the City Council or the City Manager had delegated any of its policymaking authority with regard to employer-employee relations to the Fire Chief.” 64 F.3d at 965. Plaintiffs argue that “[a]t the pleading stage, obviously, a plaintiff need not come forward with ‘evidence’ of anything.” (Doc. 45 at 5.)

While it is true that Plaintiffs need not establish a prima facie case at this stage, Iqbal and Twombly require more than claims from which mere possibility can be inferred; they require facts showing plausibility. Plaintiffs have not met this standard. See Yadin Co. v. City of Peoria, No. CV-06-1317-PHX-PGR, 2008 WL 906730, at *5 (D.Ariz. Mar. 25, 2008) (dismissing section 1983 claim for lack of factual allegations supporting plaintiffs assertion that a city official had final policymaking authority or had been delegated such authority); Lyttle v. Killackey, 528 F.Supp.2d 818, 828-29 (N.D.Ill.2007) (finding complaint defective for failure to plead facts supporting claim that final policymaking authority was delegated to police officers), reconsidered on other counts, 546 F.Supp.2d 583 (N.D.Ill.2008).

In fact, Plaintiffs’ pleadings and briefs demonstrate that the GPD Defendants did not have final policymaking authority. For example, Plaintiffs provide an excerpt from the Greensboro City Charter that provides in part: “The chief of police, acting under the city manager, shall have supervision and control of the police force and shall enforce discipline therein.” Greensboro, N.C., Charter § 4.31. If an official’s acts are subject to review or supervision by a municipal policymaker, that official does not have final policymaking authority. See Riddick v. Sch. Bd., 238 F.3d 518, 523-24 (4th Cir.2000).

ii. Municipal Custom

Plaintiffs plead that the allegedly wrongful actions of Wray, Brady, Sanders, and Wade were “pursuant to municipal policy or custom.” (See, e.g., Doc. 5-2 ¶¶ 148, 156.) Yet Plaintiffs focus primarily upon the “policy” and “policymakers” argument in their briefs, raising the “custom” argument only indirectly (see Doc. 35 at 13-15) or very briefly (see Doc. 45 at 7-8). To the extent they raise this argument, it is unsupported by the facts alleged in their Amended Complaint.

To establish municipal liability for a widespread, unconstitutional custom or practice among the City’s police force, Plaintiffs must show (1) that the City had “ ‘actual or constructive knowledge’ of the custom and usage by its responsible policymakers,” and (2) that there was a failure by those policymakers, “ ‘as a matter of specific intent or deliberate indifference,’ to correct or terminate the improper custom and usage.” Randall v. Prince George’s Cnty., Md., 302 F.3d 188, 210 (4th Cir.2002) (quoting Spell v. McDaniel, 824 F.2d 1380, 1391 (4th Cir.1987)).

Plaintiffs have failed to allege facts showing that the City Manager, the City Council, or any other responsible policymaker had actual or constructive knowledge of the allegedly wrongful acts of the other Defendants and that these policymakers deliberately failed to correct these wrongs. Plaintiffs’ Amended Complaint alleges that in January 2006 the City Manager publicly condemned the GPD Defendants’ actions and accepted Wray’s resignation as Chief of Police. (See Doc. 5 If 51-54, 56-57, 59-62.) At that time, he also announced that after reviewing one of the line-up books, he had confronted Wray about it in the summer of 2005, that Wray had denied knowledge of it, and that Wray had ordered Brady to hide it. (Id. ¶ 59.) The only other factual allegations involving municipal policymakers concern the Stipulation, signed when the City was attempting to negotiate a settlement with Plaintiffs. This hardly shows “deliberate indifference” by the City. Finally, Plaintiffs do not even attempt to argue that the allegedly wrongful action of Wade — an isolated incident of releasing information pursuant to a public records request — -constituted a “custom” under the Randall standard.

Plaintiffs have failed to allege facts showing a municipal policy or custom. Consequently, their section 1981 and section 1983 claims against the City, as stated in the Amended Complaint, must be dismissed.

iii. Proposed SAC

The new allegations of Plaintiffs’ proposed SAC fail to alter this holding.

The SAC alleges that Brady was “a person empowered by Defendant Greensboro to establish the Greensboro Police Department’s official policies and customs with regard to employment practices ... and to conduct of investigations ... in the absence of the Chief of Police.” (Doc. 32, Ex. 1 ¶ 71.) It also alleges that Brady was “empowered by Defendant Greensboro to establish ... official policies and customs with regard to the activities and functions of SID.” (Id. ¶ 72.) If this is an attempt to establish that Brady is a “policymaker,” it is no less conclusory and lacking in factual support than Plaintiffs’ original bald assertions that the GPD Defendants were “policymakers.”

Plaintiffs further allege that “Brady reported all substantive activities of SID directly to Defendant Wray” (id. ¶ 73) and that Sanders “answered only to Defendants Brady and Wray” rather than to the SID sergeant (id. ¶ 74). The same paragraph alleges that Brady, authorized by Wray, instructed Sanders to report directly to Brady and Wray “in contravention of established policy.” (Id.) These allegations do not cure the deficiencies in the Amended Complaint and, insofar as Plaintiffs claim that Brady and Sanders were final policymakers, undercut that claim.

The SAC also details the investigation conducted by the City Attorney’s office after Wray and Brady resigned (id. ¶¶ 91-95) and the City’s hiring of RMA in November 2005 to investigate allegations of wrongdoing by the GPD Defendants (id. ¶¶ 96-99). Plaintiffs attach nearly the entirety of the City Legal Report by the City Attorney’s office. None of this new material provides any factual support for the existence of a municipal policy or custom. To the contrary, the existence of these reports, which resulted from investigations initiated by the City, undercuts Plaintiffs’ argument that the City was “deliberately indifferent” to the alleged misconduct. The City Legal Report, which the SAC incorporates by reference, states that the City began an investigation once three African-American GPD officers raised concerns about Wray, Brady, and Sanders to the City Manager in early August 2005. (Id. (City Legal Report) at 37, 75.) The Report details that during the approximately three months following notice to the City in August 2005, the City’s investigation involved interviews of a ranking member of the State Bureau of Investigation, the U.S. Attorney for the Middle District of North Carolina, and over fifty GPD officers and related law enforcement personnel, as well as the retention of RMA for its independent analysis. (Id. at 37-38, 45 — 17, 75.)

Therefore, because Plaintiffs’ section 1981 and 1983 claims against the City would not survive the City’s motion to dismiss even if Plaintiffs were permitted to file the SAC, the court finds that Plaintiffs’ proposed amendment would be futile,

b. Conspiracy and 42 U.S.C. § 1981 (Count III)

The exact nature of Plaintiffs’ section 1981 conspiracy claim against the City is unclear, and Plaintiffs do not address it in their briefing. In any event, Plaintiffs’ claim fails.

To the extent Plaintiffs allege a conspiracy that violates section 1981, the claim fails because Plaintiffs have not alleged facts showing a municipal policy or custom, as discussed above. To the extent Plaintiffs seek to allege some sort of state law conspiracy to violate section 1981, they have provided no legal support for or explanation of such a theory. Even if they could do so, the claim would still fail for the following reasons. First, under North Carolina law a municipality generally may not be a party to a conspiracy. Houpe v. City of Statesville, 128 N.C.App. 334, 352, 497 S.E.2d 82, 93-94 (1998) (“[A] municipal corporation, which is limited by law to the purposes and objects of its creation ... cannot in its sovereign or municipal capacity be a party to a conspiracy.” (quoting Charlton v. City of Hialeah, 188 F.2d 421, 422 (5th Cir.1951))); see also Franklin v. Yancey Cnty., Civil No. 1:09cv199, 2010 WL 317804, at *5 (W.D.N.C. Jan. 19, 2010) (citing Howpe). Plaintiffs’ Amended Complaint does not allege that the asserted conspiracy falls outside this general rule. See Houpe, 128 N.C.App. at 352, 497 S.E.2d at 94. Second, a municipality generally cannot conspire with itself under the intracorporate conspiracy (or intracorporate immunity) doctrine. “[Sjince at least two persons must be present to form a conspiracy, a corporation cannot conspire with itself____An allegation that a corporation is conspiring with its agents, officers or employees is tantamount to accusing a corporation of conspiring with itself.” State ex rel. Cooper v. Ridgeway Brands Mfg., LLC, 184 N.C.App. 613, 625, 646 S.E.2d 790, 799 (2007) (citation omitted), aff'd in part and rev’d in part on other grounds, 362 N.C. 431, 666 S.E.2d 107 (2008). The doctrine is equally applicable to municipalities. See Iglesias v. Wolford, 539 F.Supp.2d 831, 835-36 (E.D.N.C.2008). Merely suing the agents, officers, or employees in their individual capacities does not change this result. Cooper, 184 N.C.App. at 625, 646 S.E.2d at 799. Thus, Plaintiffs’ conspiracy claim will be dismissed. The court finds nothing in the SAC that would save this claim, so the proposed amendment would be futile.

c. 42 U.S.C. § 1985(3) (Count V)

Plaintiffs’ final federal claim against the City is conspiracy to violate civil rights under section 1985(3). The City argues that this claim is barred by the intracorporate conspiracy doctrine. The Fourth Circuit has clearly held that the doctrine applies to federal civil-rights actions. See Buschi v. Kirven, 775 F.2d 1240, 1251-53 (4th Cir.1985). Plaintiffs have not responded to this argument.

Plaintiffs’ Amended Complaint alleges that “[a]ll of the activities referred to in the Complaint were performed by, or at the direction of the Defendants Wray and Brady, individually, together, and as part of a conspiracy involving them, Defendant Sanders, and other non-black [GPD] employees ... and while said Defendants were employed by the Defendant Greensboro.” (Doc. 5 ¶89 (emphasis added).) Also, Wade’s alleged actions were taken while she was “an elected member of the Greensboro City Council.” (Id. ¶ 102.) For the reasons noted above, because under the intracorporate conspiracy doctrine the City could not have conspired with the other Defendants, this claim will be dismissed. See Buschi, 775 F.2d at 1251-53; Iglesias, 539 F.Supp.2d at 835-36, 838. The court finds nothing in the SAC that would save this claim, so the proposed amendment would be futile.

2. Defendant Wade

Plaintiffs bring only two federal claims against Wade: (1) violation of civil rights under 42 U.S.C. § 1983 (Count V), and (2) conspiracy to violate civil rights under 42 U.S.C. § 1985(3) (Count V). Wade is sued in both her official and individual capacities.

a. Official Capacity Claims

Wade argues that Plaintiffs’ claims against her in her official capacity are merely another way of pleading those claims against the City, and she contends that they should be dismissed as unnecessary and redundant. See Kentucky v. Graham, 473 U.S. 159, 165, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985) (“Official-capacity suits ... ‘generally represent only another way of pleading an action against an entity of which an officer is an agent.’ ” (quoting Monell, 436 U.S. at 690 n. 55, 98 S.Ct. 2018)); Love-Lane v. Martin, 355 F.3d 766, 783 (4th Cir.2004) (“The district court correctly held that the § 1983 claim against [defendant] in his official capacity as Superintendent is essentially a claim against the Board and thus should be dismissed as duplicative.”).

Plaintiffs concede this point but argue that there is an exception to the extent injunctive relief is sought against the defendant. See Hafer v. Melo, 502 U.S. 21, 27, 112 S.Ct. 358, 116 L.Ed.2d 301 (1991) (“[A] state official in his or her official capacity, when sued for injunctive relief, would be a person under § 1983 because official-capacity actions for prospective relief are not treated as actions against the State.” (alteration in original) (quoting Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 n. 10, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989)) (internal quotation marks omitted)). Plaintiffs point out that they seek to enjoin all Defendants from “engaging in further disclosure of plaintiffs’ confidential and protected personnel information,” among other things. (Doc. 5-2 ¶¶ 182-85.)

Wade replies that Plaintiffs’ request for injunctive relief will not save their section 1983 claim, because they have failed to state a claim for relief under section 1983. This requires the court to proceed to the substance of Plaintiffs’ claims.

b. 42 U.S.C. § 1983 (Count V)

Plaintiffs’ section 1983 claims against Wade in her official and individual capacities are based on the same conduct and can be analyzed together.

To state a claim under section 1983, Plaintiffs must allege (1) that Wade “deprived [them] of a right secured by the Constitution and laws of the United States,” and (2) that the deprivation was performed under color of state law. Philips v. Pitt Cnty. Mem’l Hosp., 572 F.3d 176, 180 (4th Cir.2009). The Amended Complaint alleges generally that Plaintiffs “were deprived of their rights to equal protection of all the laws and to due process of law and of their right to their property.” (Doc. 5-2 ¶ 157.) Plaintiffs also allege that all Defendants deprived them of “rights, privileges, or immunities secured by the United States Constitution or by Federal law and guaranteed by the First, Fourth, Fifth, and Fourteenth Amendments to the Constitution of the United States.” (Id. ¶ 156.)

Plaintiffs’ specific allegations against Wade are that she ascertained Plaintiffs’ identities and the amount of the City’s settlement offer to them, that she encouraged a reporter to request this information through a public records request, that the reporter did so, that she revealed the information pursuant to the request and the reporter published it, that she did so to derail the settlement negotiations between Plaintiffs and the City, and that this information was released in violation of state confidentiality laws and/or the Stipulation. Wade argues that these alleged facts do not establish any federal constitutional violation and that a section 1983 claim cannot be based on a state constitutional violation. Plaintiffs do not respond to this argument but allege only that Wade acted with an improper motive, “intenfding] to cause Plaintiffs to suffer injury that would likely chill persons of ordinary firmness from continuing to engage in Constitutionally protected activity, including the pursuit of redress in the EEOC proceeding.” (Doc. 36 at 15.)

The court finds that Plaintiffs have failed to allege facts rising to the level of a federal constitutional or statutory violation. Plaintiffs allege multiple times that their identities and the City’s settlement offer were protected from disclosure by state law and/or the Stipulation. {See Doc. 5 ¶¶104, 106; Doc. 5-2 ¶ 121; Doc. 36 at 12, 14-15.) But sect ion 1983 requires factual allegations plausibly showing the deprivation of “a right secured by the Constitution and laws of the United States.” Philips, 572 F.3d at 180. It is unclear how Plaintiffs’ factual allegations against Wade show a deprivation of any federal constitutional or statutory right. To the extent Plaintiffs rely on an alleged breach of the Stipulation or state law, such grounds do not support a federal claim here. See Stewart v. Hunt, 598 F.Supp. 1342, 1353 (E.D.N.C.1984) (“ § 1983 imposes liability solely for violations of rights protected by the Constitution and federal law, not for violations arising simply out of state tort and contract law principles.... [W]hile some conduct may ... violate state law, it may not rise to the dimensions of constitutional injury.”) Therefore, Plaintiffs’ section 1983 claim against Wade in her official and individual capacities will be dismissed.

The proposed SAC contains no new allegations involving Wade, and Plaintiffs’ briefs in support of the amendment do not even mention Wade. Therefore, the court finds that the proposed amendment would be futile as to this claim.

c. 42 U.S.C. § 1985(3) (Count V)

Wade contends that Plaintiffs have failed to allege facts showing that she was involved in a conspiracy cognizable under section 1985(3). Plaintiffs do not respond to Wade’s arguments or provide any explanation for or justification of their section 1985(3) claim.

In order to prove a conspiracy in violation of 42 U.S.C. § 1985(3), a plaintiff must show, among other things, that “some racial, or perhaps otherwise class-based, invidiously discriminatory animus [lay] behind the conspirators’ action.” Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263, 267-68, 113 S.Ct. 753, 122 L.Ed.2d 34 (1993) (alteration in original) (quoting Griffin v. Breckenridge, 403 U.S. 88, 102, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971)). Here, Plaintiffs’ Amended Complaint provides absolutely no factual basis for an inference that Wade’s actions were part of a conspiracy motivated by racial or class-based invidiously discriminatory animus. Therefore, because Plaintiffs have failed to allege facts sufficient to render their section 1985(3) claim plausible, the claim will be dismissed against Wade in her official and individual capacities. The court finds nothing in the SAC that would save this claim, so the proposed amendment would be futile.

3. GPD Defendants (Wray, Brady, and Sanders)

Plaintiffs bring the same claims against the GPD Defendants as against the City: (1) discrimination on the basis of race under 42 U.S.C. § 1981 (Count II); (2) conspiracy to discriminate on the basis of race under § 1981 (Count III); and (3) violations of civil rights under 42 U.S.C. §§ 1983 and 1985(3) (Count V). The GPD Defendants are sued in both their official and individual capacities. Because these three Defendants allegedly acted in concert with one another and generally make the same arguments, the claims against them will be considered together.

a. Official Capacity Claims

Like Wade, the GPD Defendants argue that the official capacity claims against them should be dismissed as redundant and duplicative of the claims against the City. And as in Wade’s case, Plaintiffs respond that the claims must go forward because Plaintiffs have requested injunctive relief. Brady and Sanders contend that injunctive relief against them in their official capacities is impossible since Brady is no longer employed by the GPD (see Doc. 5-2 ¶ 120) and Sanders has been permanently reassigned out of the SID. (Doc. 41 at 6.) Wray points out that he is no longer the Chief of Police, as Plaintiffs’ Amended Complaint recognizes (see Doc. 5 ¶ 61; Doc. 5-2 ¶ 120). Plaintiffs offer no response to these arguments.

The court finds that the official capacity claims are indeed duplicative of those against the City (which are dismissed for the reasons noted). In addition, Plaintiffs have not alleged any ongoing discrimination or civil rights violations or alleged facts indicating that such harms may recur. To the contrary, Plaintiffs’ Amended Complaint admits that Wray and Brady are no longer employed by the GPD. (See Doc. 5 ¶ 61; Doc. 5-2 ¶ 120.) See Spencer v. Gen. Electric Co., 703 F.Supp. 466, 469 (E.D.Va.1989) (“Before granting injunctive relief, the court must ... conclude that a ‘cognizable danger of recurrent violation’ exists.” (quoting United States v. Hunter, 459 F.2d 205, 219 (4th Cir.1972))), aff'd, 894 F.2d 651 (4th Cir.1990), abrogated on other grounds by Farrar v. Hobby, 506 U.S. 103, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992); cf. Brown v. Lieutenant Governor’s Office on Aging, 697 F.Supp.2d 632, 634, 639-40 (D.S.C.2010) (adopting magistrate judge’s recommendation that “the claims for injunctive relief ... against [individual defendant] in her official capacity [are] moot because [she] is no longer employed by the employer”). Therefore, the official capacity claims against the GPD Defendants will be dismissed. Nothing in the SAC would change this result, so the proposed amendment would be futile.

The court turns now to Plaintiffs’ individual capacity claims.

b. 42 U.S.C. § 1981 (Count II)

The GPD Defendants raise two principal arguments against Plaintiffs’ section 1981 claim. First, they contend that because Plaintiffs did not have a direct contractual relationship with the GPD Defendants, this claim must fail as a matter of law under Domino’s Pizza, Inc. v. McDonald, 546 U.S. 470, 126 S.Ct. 1246, 163 L.Ed.2d 1069 (2006). Second, they argue that Plaintiffs’ allegations do not satisfy the “plausibility” standard of Iqbal.

i. Domino’s Pizza, Inc. v. McDonald

According to the GPD Defendants, Plaintiffs’ section 1981 claim is based upon alleged discrimination in employment, and Plaintiffs’ at-will employment contracts were with the City, not with the GPD Defendants. The GPD Defendants argue that Plaintiffs may not bring a section 1981 claim against Defendants in their individual capacities without alleging a contractual relationship between Plaintiffs and the individual Defendants.

As Plaintiffs point out, this court has addressed and rejected this very argument in Phillips v. Mabe, 367 F.Supp.2d 861 (M.D.N.C.2005):

[I]n the instant case, Plaintiff is a party to the contract between himself and the Sheriffs Department.... That Plaintiff does not have a contract with Defendant Mabe, the superintendent, and Defendant Whitt, the former Sheriff, is not important, because tortious interference by Defendants of Plaintiffs ability to contract with the Sheriffs Department satisfies the contract requirement of § 1981.

Id. at 869 (emphasis omitted) (citation omitted). Phillips concluded that “the Defendants’ argument as to the necessity of a contract between Plaintiff and Defendants is not valid.” Id. at 870. Phillips also noted that in Spriggs v. Diamond Auto Glass, 165 F.3d 1015 (4th Cir.1999), a plaintiff was permitted to sue his former employer, the employer’s president, and the plaintiffs former supervisor under section 1981 even though the plaintiff did not have a contract with the latter two parties. Phillips, 367 F.Supp.2d at 869 (citing Spriggs, 165 F.3d at 1020). Here, Plaintiffs allege that each of them had an employment contract with the GPD and that the GPD Defendants interfered with those employment contracts, thereby violating section 1981.

The GPD Defendants respond that Domino’s Pizza, Inc. v. McDonald, 546 U.S. 470, 126 S.Ct. 1246, 163 L.Ed.2d 1069 (2006), changed all this. In Domino’s, McDonald, a black man who was the sole shareholder and president of JWM Investments, Inc. (“JWM”), brought a section 1981 action against Domino’s, alleging that JWM and Domino’s had entered into several contracts, that Domino’s had breached those contracts because of racial animus toward McDonald, and that the breach had harmed McDonald personally. Id. at 472-73, 126 S.Ct. 1246. The Supreme Court held that McDonald had failed to state a claim, because “a plaintiff cannot state a claim under § 1981 unless he has (or would have) rights under the existing (or proposed) contract that he wishes ‘to make and enforce.’ ” Id. at 479-80, 126 S.Ct. 1246. The Court stated that “[s]ection 1981 plaintiffs must identify injuries flowing from a racially motivated breach of their own contractual relationship, not of someone else’s.” Id. at 480, 126 S.Ct. 1246. McDonald was not a party to and had no rights under the contracts between JWM and Domino’s and thus had no standing to raise a claim.

According to the GPD Defendants, Domino’s requires a contractual relationship between the plaintiff and the defendant in a section 1981 action. The Court required no such thing. Rather, it expressly required only that the plaintiff allege a contractual relationship “under which the plaintiff has rights” (declining even “to exclude the possibility that a third-party intended beneficiary of a contract may have rights under § 1981”). Id. at 476 & n. 3, 126 S.Ct. 1246. Here, Plaintiffs have rights under their at-will contracts for employment with the City.

The GPD Defendants’ only support for their position is Peters v. Molloy College of Rockville Centre, No. 07-CV-2553 (DRH)(ETB), 2008 WL 2704920 (E.D.N.Y. July 8, 2008). In Peters, a former nursing student sued Molloy College, one professor, and two associate deans under section 1981, among other bases. Id. at *1. The court stated that the plaintiff “may state a Section 1981 claim by alleging that Defendants breached a contract with her and the breach was motivated by racial prejudice.” Id. at *6 (emphasis added). Then the court cited Domino’s for the proposition that a section 1981 claim must identify “an impaired contractual relationship under which the plaintiff has rights.” Id. (quoting Domino’s, 546 U.S. at 476, 126 S.Ct. 1246) (internal quotation marks omitted). Without further analysis or explanation, the court concluded that to the extent the professor and deans “move to dismiss Plaintiffs Section 1981 claims against the individual defendants on the ground that Plaintiff does not allege that she had a contractual relationship with the individual defendants, the Court grants this motion.” Id. at *7. No other court has cited this opinion for this proposition.

No Fourth Circuit opinion has directly addressed this issue since Domino’s, but of the Fourth Circuit opinions that both cite Domino’s and address a section 1981 claim based on a contractual relationship, one allowed the claim to go forward against a nonparty to the contract. See Emory Utils., Inc. v. Time Warner Cable, Inc., No. 7:09-CV-169-BO, 2010 WL 2402888, at *2 (E.D.N.C. June 11, 2010). Three others rejected claims against nonparties to the contracts at the summary judgment stage, but on other grounds (the argument advanced by the GPD Defendants was not mentioned). See Orgain v. City of Salisbury, Md., 305 Fed.Appx. 90, 104-05 (4th Cir.2008) (unpublished per curiam opinion); Proa v. NRT Mid Atl., Inc., 618 F.Supp.2d 447, 460-72 (D.Md.2009), aff'd, Nos. 09-1727, 09-1816, 09-1969, 2010 WL 4137533 (4th Cir. Oct. 18, 2010) (unpublished per curiam opinion); Orgain v. City of Salisbury, 521 F.Supp.2d 465, 481-83, 498 (D.Md.2007), aff'd in part, 305 Fed.Appx. 90 (4th Cir.2008)(unpublished per curiam opinion). Consequently, the GPD Defendants’ interpretation of Domino's finds no support in any Fourth Circuit case law, and the court declines to adopt it now.

ii. The “Plausibility” Standard

The GPD Defendants argue alternatively that Plaintiffs have failed to plead facts plausibly showing that they may be entitled to relief under section 1981. Addressing this argument will require a careful examination of each of Plaintiffs’ allegations.

Plaintiffs’ “shotgun” complaint presents an array of generalized grievances and vague allegations. In Plaintiffs’ own words, it alleges “discriminatory investigations, targeting of Plaintiffs, disparate disciplinary practices, hostile work environment, failures to promote, and violations of the North Carolina Personnel Privacy Act.” (Doc. 34 at 4.) Notwithstanding, each Plaintiff individually must allege facts plausibly showing that he or she is entitled to relief. Because of this, many of Plaintiffs’ more general allegations are clearly inadequate. For example, Plaintiffs allege that Sanders “made numerous investigations of black officers” without following proper standards. (Doc. 5 ¶ 72.) Plaintiffs provide no other details about this allegation, so it is unknown which of the Plaintiffs were investigated or even whether any Plaintiffs were investigated at all. Similarly, Plaintiffs allege that Wray and Brady repeatedly “failed to promote black officers ... to positions for which such officers were qualified.” (Id. ¶ 82.) Again, the Amended Complaint does not indicate whether any individual Plaintiffs were among these officers, nor does it allege any specific instances in which a Plaintiff was qualified for and denied a particular promotion.

Even where the Amended Complaint names specific victims of the alleged discrimination, they are not always Plaintiffs. For example, the Amended Complaint alleges that Wray excluded two black Assistant Chiefs, Tim Bellamy and Annie Stevenson, from “the decision-making process.” (Id. ¶ 83.) Neither is a Plaintiff, however. Allegations like these do not show that any individual Plaintiff is entitled to relief.

To bring a section 1981 discrimination claim, each Plaintiff must allege that he or she is a member of a racial minority, that Defendants’ discriminatory actions against that Plaintiff were because of his or her race, and that the discrimination was intentional. Jordan, 458 F.3d at 345 (citing Mian v. Donaldson, Lufkin & Jenrette Sec. Corp., 7 F.3d 1085, 1087 (2d Cir.1993) (per curiam)). Each Plaintiff must also allege facts plausibly supporting these allegations. See Francis, 588 F.3d at 193, 195-96; Jordan, 458 F.3d at 346-47; see also Iqbal, 129 S.Ct. at 1949-50.

Fourth Circuit case law demonstrates that the framework of analysis for a section 1981 employment discrimination claim is generally the same as for a Title VII employment discrimination claim, and courts typically apply the same theoretical categories, such as disparate treatment, retaliation, or hostile work environment. See, e.g., Gairola v. Va. Dep’t of Gen. Servs., 753 F.2d 1281, 1285 (4th Cir.1985) (“Under Title VII and either § 1981 or § 1983, the elements of the required prima facie case are the same.”); see also, e.g., Patterson v. McLean Credit Union, 491 U.S. 164, 186, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989) (holding, “in the context of disparate treatment,” that the “scheme of proof’ designed for Title VII claims “should apply to claims of racial discrimination under § 1981”), superseded by statute on other grounds, Civil Rights Act of 1991, Pub.L. No. 102-166, 105 Stat. 1071; Bryant v. Aiken Reg’l Med. Ctrs. Inc., 333 F.3d 536, 543 (4th Cir.2003) (applying the same requirements to retaliation claims under section 1981 and Title VII); Spriggs v. Diamond Auto Glass, 242 F.3d 179, 184 (4th Cir.2001) (“The elements [of a hostile work environment claim] are the same under either § 1981 or Title VIL”). Consequently, the court will examine each of Plaintiffs’ specific factual allegations and determine under which, if any, of these theories Plaintiffs have pleaded a section 1981 claim.

(a). All Plaintiffs

Plaintiffs allege that Wray and Brady “directed subordinate officers to gather pictures of black officers of the Greensboro Police Department for the use of line-up books or other visuals [sic] aids ... for the purpose of framing, embarrassing, and wrongfully investigating and charging black officers.” (Doc. 5 ¶ 48.) Plaintiffs allege that upon information and belief, their “photographs, likenesses, and/or names were included in at least one version of the [l]ine-[u]p Books.” {Id. ¶ 49.) Sanders and other non-black officers allegedly “presented the [l]ine-[u]p Books to members of the general public, including known convicted criminals and criminal suspects,” to elicit false allegations against black GPD officers. {Id. ¶ 50; see id. ¶ 48, 56.)

(1) Disparate Treatment: Although Plaintiffs allege that non-black officers did not receive this treatment {id. ¶¶ 66, 87), these allegations do not successfully state a claim for disparate treatment under section 1981. The elements of a prima facie section 1981 disparate treatment claim in the employment setting are the same as those for a Title VII claim. See Gairola, 753 F.2d at 1285. Plaintiffs must establish that (1) they are members of a protected class, (2) they suffered an adverse employment action, (3) they were performing in a manner that satisfied their employer’s legitimate job expectations, and (4) the adverse employment action occurred “under circumstances which give rise to an inference of unlawful discrimination.” Jenkins v. Trs. of Sandhills Cmty. Coll., 259 F.Supp.2d 432, 443 (M.D.N.C.2003) (quoting EEOC v. Sears Roebuck & Co., 243 F.3d 846, 851 n. 2 (4th Cir.2001)), aff'd, 80 Fed.Appx. 819 (4th Cir.2003) (unpublished per curiam opinion); see Hol land v. Wash. Homes, Inc., 487 F.3d 208, 214 (4th Cir.2007); Julsaint v. Corning, Inc., 178 F.Supp.2d 610, 615-16 (M.D.N.C.2001).

While Plaintiffs need not allege facts that constitute a prima facie case, see Jordan, 458 F.3d at 346, they must still “allege facts sufficient to state all the elements of [their] claim,” id. (emphasis omitted) (quoting Bass, 324 F.3d at 765). A key element that Plaintiffs must allege is that they each suffered an “adverse employment action.” See Harman v. Unisys Corp., 356 Fed.Appx. 638, 641 (4th Cir.2009) (unpublished per curiam opinion) (citing Page v. Bolger, 645 F.2d 227, 233 (4th Cir.1981) (en banc)); Fletcher v. Philip Morris USA Inc., No. 3:09-CV-284 (HEH), 2009 WL 2067807, at *5-*6 (E.D.Va. July 14, 2009) (analyzing whether a section 1981 plaintiff sufficiently alleged an adverse employment action); cf. Hoffman v. Balt. Police Dep’t, 379 F.Supp.2d 778, 792 (D.Md.2005) (“It is well settled that to state a cause of action for disparate treatment under Title VII ... the plaintiff must allege that he suffered an ‘adverse employment action.’ ”).

An “adverse employment action” is “a discriminatory act that ‘adversely affect[s] the terms, conditions, or benefits of the plaintiffs employment.’ ” Holland, 487 F.3d at 219 (alteration in original) (quoting James v