                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 11-6566


VINCENT JOHN HALL,

                Plaintiff - Appellant,

          v.

DURON BURNEY, Officer; MAXTON POLICE; TOWN OF MAXTON,

                Defendants - Appellees.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   Terrence W. Boyle,
District Judge. (7:10-cv-00184-BO)


Submitted:   October 31, 2011             Decided:   November 18, 2011


Before NIEMEYER, AGEE, and KEENAN, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.


Vincent John Hall, Appellant Pro Se.      Ronnie Monroe Mitchell,
MITCHELL,   BREWER,   RICHARDSON,   ADAMS,   BURGE   &  BOUGHMAN,
Fayetteville, North Carolina; Andrew James Santaniello, CLAWSON
& STAUBES, PLLC, Charlotte, North Carolina, for Appellees.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

           Pursuant to 42 U.S.C. § 1983 (2006), Vincent John Hall

filed a pro se complaint against Officer Duron Burney, the Town

of Maxton, North Carolina, and the Maxton Police Department,

alleging that he was shot by Burney on his own property. *                  He

claimed that the Town of Maxton had hired Burney part-time and

failed to properly train him.          Hall sought damages for medical

expenses and pain and suffering.             The district court granted

Defendants’ motion to dismiss, finding that Hall failed to state

a claim against any of the Defendants.             Hall timely appealed,

claiming that the district court erred by dismissing his action

and by denying his motion to amend his complaint.                 We affirm in

part, vacate in part, and remand for further proceedings.

           We review de novo the district court’s ruling on a

motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules

of Civil Procedure.      Simmons v. United Mortg. & Loan Inv., LLC,

634 F.3d 754, 768 (4th Cir. 2011).              “The purpose of a Rule

12(b)(6)   motion   is   to   test   the   sufficiency   of   a    complaint.”


     *
        Hall, a private citizen, filed his complaint on a
standardized form ordinarily used by prisoners filing civil
actions pursuant to § 1983 or Bivens v. Six Unknown Named Agents
of Federal Bureau of Narcotics, 403 U.S. 388 (1971).         The
district court found that Hall failed to state a claim under
Bivens. Because Hall clarified in his informal appellate brief
that his complaint sought relief under § 1983, we do not address
his claims under Bivens.



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Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999).

To survive a Rule 12(b)(6) motion, a complaint must give the

defendant      “fair       notice    of    what       the     .    .    .    claim      is    and    the

grounds upon which it rests.”                     Erickson v. Pardus, 551 U.S. 89,

93    (2007)    (internal       quotation             marks       and    citations           omitted).

While     a    pro    se     litigant’s          pleadings         are       “to       be    liberally

construed,” id. at 94, the facts alleged must “raise a right to

relief       above    the    speculative         level,”          and       the    complaint        must

contain       “enough       facts    to    state        a   claim        to       relief      that    is

plausible on its face.”                Bell Atl. Corp. v. Twombley, 550 U.S.

544,    555,    570     (2007).           This    plausibility              standard         does    not

equate to a probability requirement, but it requires “more than

a    sheer    possibility       that       a   defendant           has      acted       unlawfully.”

Ashcroft v. Iqbal, 556 U.S. 662, ___, 129 S. Ct. 1937, 1949

(2009).        Where the motion to dismiss involves “a civil rights

complaint,       we     must    be    especially            solicitous            of    the    wrongs

alleged and must not dismiss the complaint unless it appears to

a certainty that the plaintiff would not be entitled to relief

under any legal theory which might plausibly be suggested by the

facts alleged.”             Edwards, 178 F.3d at 244 (internal quotation

marks and citation omitted).

               As a preliminary matter, we agree with the district

court that the Maxton Police Department was not subject to suit

under § 1983.           Mt. Healthy City Sch. Dist. Bd. of Educ. v.

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Doyle,   429   U.S.     274,   280    (1977).          We   therefore        affirm    the

district     court’s    dismissal      of    the      claims    against      the    police

department.

             Turning to Hall’s claim against Burney, “[t]he Fourth

Amendment’s    prohibition      on    unreasonable          searches     and      seizures

includes the right to be free of ‘seizures effected by excessive

force.’”      Henry v. Purnell, 652 F.3d 524, 531 (4th Cir. 2011)

(quoting Schultz v. Braga, 455 F.3d 470, 476 (4th Cir. 2006)),

petition     for   cert.   filed     (Oct.      11,    2011)     (No.   11-458).        We

conclude that Hall’s allegations, albeit brief, that Burney, a

police officer, entered his property and shot him was adequate

to give Defendants notice of, and was sufficient to establish a

plausible claim of, excessive force.

             Regarding     Hall’s    claim       against       the   Town    of    Maxton,

“inadequacy of police training may serve as the basis for § 1983

liability,”    but     “only   where    the      failure       to    train   amounts    to

deliberate indifference to the rights of persons with whom the

police come in contact.”             City of Canton v. Harris, 489 U.S.

378,   388   (1989).       While     mere       negligence      is    insufficient      to

expose a municipality to liability under § 1983 for failure to

train, Jordan v. Jackson, 15 F.3d 333, 341 (4th Cir. 1994), a

local governing body’s failure to adequately train its officers

can be so egregious as to warrant a finding that it amounts to a



                                            4
policy   or     custom        for        which   the    municipality        should       be   held

responsible.         City of Canton, 489 U.S. at 389-90.

              On     the      record        before      us,      we     cannot        state    with

certainty     that       Hall       is    not    entitled     to      relief     on    his    claim

against the Town of Maxton under any plausible legal theory.                                    It

is at least possible that Hall can establish through discovery a

pattern of conduct by officers indicating a lack of training and

that   such     a    lack     of     training         resulted     in    the   injuries        Hall

alleges he sustained.

              Accordingly, we conclude that the district court erred

by granting Defendants’ motion to dismiss the claims against

Burney and the Town of Maxton and therefore vacate this portion

of the district court’s order.                         Ultimately, Hall’s claims may

not be successful, but the validity of his claims cannot be

determined         until      the    facts       surrounding          his   allegations         are

developed.          See Edwards, 178 F.3d at 243 (stating that “a Rule

12(b)(6) motion does not resolve contests surrounding the facts,

the    merits       of    a   claim,        or    the    applicability           of     defenses”

(internal quotation marks, citations, and alterations omitted)).

              In addition, Hall sought to amend his complaint to add

Maxton   Police          Captain         Tammy   Deese    and      Mayor    Gladys       Dean   as

Defendants.          His proposed amended pleading alleged that they

were liable for the inadequate police training.                                  The district

court denied the motion to amend as futile.

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            “A plaintiff may amend his complaint one time as a

matter    of    course     before      the       defendant     files     a    responsive

pleading.”      Laber v. Harvey, 438 F.3d 404, 426 (4th Cir. 2006)

(citing    Fed.    R.    Civ.    P.    15(a)).        We      review    for        abuse    of

discretion the denial of a motion to amend a complaint.                                   Pub.

Emps.’ Ret. Ass’n v. Deloitte & Touche LLP, 551 F.3d 305, 313

n.3 (4th Cir. 2009).

            “[T]he      doctrine       of    futility      only    applies         when    the

plaintiff seeks leave of court to amend and does not have a

right to amend.”           Galustian v. Peter, 591 F.3d 724, 730 (4th

Cir. 2010).       Because no responsive pleading had yet been filed.,

see Domino Sugar Corp. v. Sugar Workers Local Union 392, 10 F.3d

1064,    1068   n.1     (4th    Cir.    1993)      (motion      to    dismiss       is     not

considered a responsive pleading), Hall had the right to amend

his complaint with or without leave of court.                           Galustian, 591

F.3d at 730.          We therefore conclude that the district court

abused its discretion by denying Hall’s motion to amend.

            For    these    reasons,        we    affirm     the     dismissal       of    the

claim against the Maxton Police Department, vacate the dismissal

of the claims against Burney and the Town of Maxton, vacate the

denial    of    Hall’s     motion      to    amend,     and    remand        for    further

proceedings consistent with this opinion.                     We dispense with oral

argument because the facts and legal contentions are adequately



                                             6
presented in the materials before this court and argument would

not aid the decisional process.

                                              AFFIRMED IN PART,
                                               VACATED IN PART,
                                                   AND REMANDED




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