Myers et al v. The State of North Carolina et al

Filing 312

ORDER denying 287 Motion to Disqualify Judge, denying 288 Motion to Alter Judgment, granting 295 Motion for Summary Judgment, denying 302 Motion for Summary Judgment, denying as moot 306 Motion for Default Judgment, and denying 308 Motion for Relief from Judgment pursuant to Rule 60(b) of the Federal Rules of Civil Procedure. Signed by District Judge Terrence W. Boyle on 1/15/2016. Copy mailed to pro se plaintiff via US Mail to 27 Wateree Trail, Georgetown, SC 29440. (Romine, L.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
NO. 5:12-CV-714-BO
LOUSHONDA MYERS, TYRE MYERS, and
DAMEON MYERS,
Plaintiffs,

)
)
)

v.

)
)
)
)

)

AT&T INC., et al.,
Defendants.

ORDER

This matter is before the Court on the parties' cross-motions for summary judgment. Also
before the Court are plaintiffs motions to disqualify and recuse, to alter or amend the judgment
pursuant to Rule 59 of the Federal Rules of Civil Procedure, for a default judgment, and for relief
for judgment pursuant to Rule 60 of the Federal Rules of Civil Procedure. All of these motions
are ripe for adjudication. For the reasons stated herein, defendants' motion for summary
judgment is granted and plaintiffs motion for summary judgment, motion to disqualify, and
Rule 50(e) and 60 motions are denied. Plaintiffs motion for default judgment is denied.
BACKGROUND
Plaintiff filed her complaint prose on November 19, 2012, alleging various violations of
federal law, state law, and her constitutional rights against 47 defendants. Plaintiffs claims
against many of the defendants were dismissed by order entered on August 16, 2013, by Chief
United States District Judge Dever, who originally had this case. That order also allowed
plaintiff to file an amended complaint, which was filed on March 31, 2014, and added several
new defendants. In an order dated December 2, 2014, this Court granted a number of motions to
dismiss, which had the effect of dismissing defendants BB&T, AT&T, Inc., AT&T Mobility
LLC, Unknown Agents/Employees of AT&T, Inc., United States Marshal Konig, and the

unknown agents/employees of the United States Marshal Service (USMS) in North and South
Carolina. Accordingly, the remaining defendants are Sheriff Steve Bizzell, Captain A.C. Fish,
Detective Kritch Allen, Detective Don Pate, Detective J. Creech, Detective J. Canady, Detective
A. Case, Captain D. Daughtry, Lieutenant Stewart, Lieutenant Danny Johnson, Deputy Gillis,

David Hildreth, James Gerrell, and Unknown Officers/Employees of the Johnston County
Sheriffs Office (collectively "the remaining defendants"). 1 The remaining claims arise out of a
search by the USMS for two fugitives from South Carolina: Damien L. Myers and Tyre Myers.
The pertinent facts presented in the light most favorable to plaintiff are as follows. Law
enforcement sources from South Carolina informed the USMS that both suspects might be
hiding in a residence at 19 Topsail Island Drive, Garner NC 27529. This turned out to be
plaintiffs residence. While conducting surveillance of the residence on October 12, 2010,
officers believed they observed Tyre Myers on the back porch. After seeing a woman leave the
residence in a car, the USMS conducted a traffic stop of the car. Plaintiff was identified as the
driver. She was asked to give permission for the USMS to walk through her house. She declined
to do so and was allowed to leave the traffic stop. Upon returning home, plaintiff was denied
entry into her home and was told that officers were in the process of obtaining a search warrant.
Marshal Konig requested that the Johnston County Sheriffs Office (JCSO) apply for a
search warrant. Detective Allen applied for and was granted the search warrant by a Johnston
County magistrate judge. After some delay, the search warrant was executed at approximately
3:25pm on October 12, 2010. Plaintiff was not allowed to enter her home prior to its execution.
No fugitives were found during execution of the search warrant, however, officers saw evidence

1

Plaintiff does not specify whether claims against the individual defendants are brought in their
individual or official capacities. Because the Court construes plaintiffs pro se complaint
liberally, Estelle v. Gamble, 49 U.S. 97, 106 (1976), the Court considers each claim as against
the defendants in both their individual and official capacities.
2

of a marijuana grow operation in the laundry room. The JCSO, via Detective Allen, sought and
was granted a second warrant to search for narcotics within the residence.
The search recovered 74. 9 grams of cocaine and money. Plaintiff was arrested upon
charges of possession with intent to sell or distribute marijuana, manufacture marijuana,
trafficking in cocaine by possessing and manufacturing, maintaining a dwelling for the purposes
of possessing or manufacturing a controlled substance, possession of drug paraphernalia, and
possession of pyrotechnics. She was taken before a magistrate who found probable cause, and
she was processed into the Johnston County Detention Center. Plaintiff spent two weeks in jail
before she was able to make bail, and she alleges that the criminal charges were dismissed in
April 2012.
DISCUSSION
As an initial matter, Rule 4(m) of the Federal Rules of Civil Procedure requires the court
to dismiss an action against a defendant who is not served within 120 days after the complaint is
filed. Fed. R. Civ. P. 4(m). However, Rule 4m further provides that "ifthe plaintiff shows good
cause for the failure, the court must extend the time for service for an appropriate period."
Id. There is no indication in the record that plaintiff has made an effort to discover the identities

and addresses of the unknown officers. Thus, the court dismisses plaintiffs claims against these
unnamed and unserved officers without prejudice.
Both parties seek entry of summary judgment in their favor as to all claims. Defendant
also raises as a defense the failure of the complaint to state a claim upon which relief can be
granted. Before the Court considers whether summary judgment should be granted in favor of
either party, therefore, the Court will consider whether any of plaintiffs claims fail as a matter of
law.

3

CLAIMS THAT FAIL AS A MATTER OF LAW
A Rule 12(b)(6) motion to dismiss for failure to state a claim for which relief can be
granted challenges the legal sufficiency of a plaintiff's complaint. Francis v. Giacomelli, 588
F.3d 186, 192 (4th Cir. 2009). When ruling on the motion, the court "must accept as true all of
the factual allegations contained in the complaint." Erickson v. Pardus, 551 U.S. 89, 93-94
(2007) (citing Bell At!. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007)). Although complete and
detailed factual allegations are not required, "a plaintiff's obligation to provide the 'grounds' of
his 'entitle[ment] to relief' requires more than labels and conclusions." Twombly, 550 U.S. at 555
(citations omitted). "Threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing

Twombly, 550 U.S. at 555). Similarly, a court need not accept as true a plaintiff's "unwarranted
inferences, unreasonable conclusions, or arguments." Eastern Shore Mkts. v. J.D. Assocs. Ltd,
213 FJd 175, 180 (4th Cir. 2000). A trial court is "not bound to accept as true a legal conclusion
couched as a factual allegation." Twombly, 550 U.S. at 555.

I.

RACKETEER INFLUENCED AND CORRUPT 0RGANIZATIONS ACT

Claims 1 and 2 of plaintiff's complaint allege violations of the Racketeer Influenced and
Corrupt Organizations Act (RICO). 18 U.S.C. §§ 1962 et seq. The essential elements of a federal
RICO cause of action are "(1) conduct (2) of an enterprise (3) through a pattern (4) of
racketeering activity." Sedima, S.P.R.L. v. Imrex Co., Inc., 473 U.S. 479, 496 (1985). In this
case, plaintiff's complaint fails to allege any plausible facts to support, at minimum, two of these
elements. Where, as here "the conduct [plaintiff] complains of is legitimate law enforcement
activity carried out in the course of the officers' employment," plaintiff fails to satisfy the
conduct element. Kahre v. Damm, 342 F. App'x 267, 268 (9th Cir. 2009). Similarly, the

4

enterprise element is not satisfied by "the cooperation between [a] federal agenc[y] and local
police in a [criminal] investigation." Id. Accordingly, plaintiffs claims 1 and 2 must be
dismissed.

11.

STATE LAW VIOLATIONS

Claim 4 of plaintiffs complaint lists eleven causes of action arising under various
provisions of the North Carolina criminal code which do not provide a civil remedy.
Accordingly, this claim must be dismissed.
Similarly, claims 6 through 12 all allege causes of action arising under the common law
of torts. These claims cannot be a basis for section 1983 liability. Spell v. McDaniel, 591 F.
Supp. 1090, 1100 (E.D.N.C. 1984) aff'd in part and reversed in part on other grounds, 824 F. 2d
1380 (4th Cir. 1987), cert. denied City of Fayetteville v. Spell, 484 U.S. 1027 (1988) ("However,

§ 1983 imposes liability solely for violations of rights protected by the constitution and federal
law, not for violations arising simply out of state tort law principles."). Moreover, "the doctrine
of governmental immunity also bars actions against public officials sued in their official
capacity." Beckv. City of Durham, 154 N.C. App. 221, 229-30 (2002). Law enforcement
officers, including sheriffs and deputy sheriffs, are covered by governmental immunity.
Richmond v. City ofAsheville, 775 S. E. 2d 925, 2015 WL 4081944, *3 (July 7, 2015); Summey
v. Barker, 142 N.C. App. 688, 691 (2001). While a governmental entity may waive immunity, a

plaintiff bringing claims against its employees acting in their official capacities must allege and
prove the capacity of the governmental unit to be sued, including whether the officials have
waived their sovereign immunity or otherwise consented to suit. Mellon v. Prosser, 126 N.C.
App. 620, 623 (rev'd in part on other grounds, 347 N.C. 568 (1998)). Here, plaintiff has not
demonstrated that defendants waived their immunity or otherwise consented to suit.

5

Accordingly, claims six, seven, eight, nine, ten, eleven, and twelve against the remaining
defendants in their official capacity are barred by governmental immunity. Sellers v. Rodriguez,
149 N.C. App. 619, 623 (2002). 2
III.

TREASON
Claim 13 asserts a claim for treason. The Fourth Circuit has specifically held that no

private right of action may be implied for treason. Rodriguez v. Doe, 549 F. App'x 141, 146 (4th
Cir. 2013). Accordingly, claim 13 must be dismissed as it fails to state a claim under which relief
may be granted.
IV.

STAND-ALONE CONSTITUTIONAL VIOLATIONS
In her fifth claim for relief, plaintiff lists six constitutional violations and a violation of

treaties. The proper vehicle with which to bring a claim for violation of one's constitutional
rights against a state actor is 42 U.S.C. § 1983. Plaintiff also alleges violations of various treaties
which, as far as the Court can tell, do not give rise to a private right of action and/or civil
remedies. Accordingly, plaintiffs fifth claim must be dismissed, but the Court will consider the
constitutional allegations made therein while addressing plaintiffs second claim for relief, in
which she alleges violations of§§ 1983 and 1985.
V.

SECTION 1985
Claim 2 alleges a violation of 42 U.S.C. § 1985. Section 1985(2) prohibits conspiracies to

obstruct justice with the intent to deny any citizen the equal protection of the laws. Section

2

As discussed, infra, because plaintiffs federal claims fail, the Court declines to exercise
supplemental jurisdiction over any state law claims against the remaining defendants in their
individual capacities.
6

1985(3) prohibits conspiracies to deprive a citizen of the equal protection of the laws. 3 To allege
a conspiracy under 42 U.S.C. § 1985, "a claimant must show an agreement or a 'meeting of the
minds' by defendants to violate the claimant's constitutional rights." Simmons v. Poe, 47 F.3d
1370, 1377 (4th Cir. 1995). Evidence ofracial or invidious class-based discriminatory animus is
required for a claim under either subsection. Griffin v. Breckinridge, 403 U.S. 88, 102 (1971).
The Fourth Circuit "has rarely, if ever, found that a plaintiff has set forth sufficient facts to
establish a section 1985 conspiracy, such that the claim can withstand a summary judgment
motion" and has "specifically rejected section 1985 claims whenever the purported conspiracy is
alleged in a merely conclusory manner, in the absence of concrete supporting facts." Simmons,
47 F.3d at 1377. Here, plaintiffs§ 1985 claim is conclusory and fails to allege any supporting
facts. Moreover, she has not presented any evidence of racial or invidious class-based
discriminatory animus. Accordingly, her claims under § 1985 are dismissed as a matter of law.
VI.

SECTION 1983
Plaintiff also a violation of 42 U.S.C. § 1983 alleges in Claim 2. "To state a claim under §

1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the
United States, and must show that the alleged deprivation was committed by a person acting
under color of state law." West v. Atkins, 487 U.S. 42, 48 (1988). "Section 1983 is not itself a
source of substantive rights, but merely provides a method for vindicating federal rights
elsewhere conferred." Albright v. Oliver, 510 U.S. 266, 271 (1984). Plaintiff alleges substantive
violations of the United States Constitution in Claim 5, which the Court will interpret as the

3

Section 1985(1) addresses conspiracies to prevent a person from holding an office or
discharging duties in an office. The Court does not see any way that § 1985(1) is implicated by
plaintiffs allegations.
7

predicate violations for her § 1983 claim. She argues that her Fourth, Fifth, Sixth, Eighth, Ninth,
and Fourteenth Amendment rights were violated.

A. Official-Capacity Claims
Insofar as plaintiff brings her claims against any of the remaining defendants in their
official capacities, such claims are in reality claims against the entity for which they were acting,
namely the JCSO. "A municipality cannot be held liable solely because it employs a tortfeasor,"

Monell v. Dep't ofSoc. Servs., 436 U.S. 658, 691 (1978), but rather it must be shown that the
municipality itself causes the constitutional violation through the execution of its policy or
custom, City of Canton v. Harris, 489 U.S. 378, 385 (1989). Plaintiff has proffered no evidence
or argument whatsoever regarding a policy or custom of the JCSO, but discusses only the actions
as they relate to her case. Thus, plaintiffs claims against the individual defendants acting in their
official capacity fail as a matter of law and are dismissed as such.

B. Constitutional Claims
Plaintiffs Fifth, Sixth, Eighth and Ninth Amendment Claims bear short shrift, as each
fails to state a claim under which relief can be granted.
1. Fifth Amendment
Plaintiff alleges that her Fifth Amendment rights were violated because her case was
never indicted or presented to the grand jury and she did not receive discovery. By plaintiffs
own admission, however, the charges against her were dismissed. Compl.

~

159. Moreover, the

Fifth Amendment's indictment requirement is not applicable to the states. See Alexander v.

Louisiana, 405 U.S. 625, 633 (1972) ("[T]he Court has never held that federal concepts of a
'grand jury', binding on the federal courts under the Fifth Amendment, are obligatory for the

8

States.") (citing Duncan v. Louisiana, 391 U.S. 145 (1968). Accordingly, her§ 1983 claim for
violation of her Fifth Amendment rights must be dismissed for failure to state a claim.
2. Sixth Amendment
Plaintiff further alleges that her Sixth Amendment rights were violated because she was
never able to confront the witnesses against her, was not informed of the nature of the charges,
was denied the ability to obtain witnesses, and was denied her discovery. Central to the
protections of the Sixth Amendment is the clause that limits its applicability to criminal
prosecutions. U.S. Const. amend. VI ("In all criminal prosecutions, the accused shall enjoy ...

.");Austin v. United States, 509 U.S. 602, 608 (1993) ("The protections provided by the Sixth
Amendment are explicitly confined to criminal prosecutions."'); see also Green v. Saenz, 812 F.
Supp. 798, 802 (7th Cir. 1992) (finding that there can be no § 1983 action for an unfair trial
where the charges were dropped). Because the purpose of the Sixth Amendment is to guarantee
that criminal defendants receive fair trials, a confrontation clause claim is properly raised in an
appeal from a criminal conviction, or in a petition for habeas corpus relief, not, as here, in a
freestanding § 1983 action. Plaintiffs § 1983 claim for violation of her Sixth Amendment rights
is dismissed.
3. Eighth Amendment
Plaintiff also argues that she was forced to pay excessive bail to be released. The Eighth
Amendment to the United States Constitution provides that "excessive bail shall not be required,
nor excessive fines imposed, nor cruel and unusual punishments inflicted." Courts have held that
the Eighth Amendment's prohibition against excessive bail applies to the states through the
Fourteenth Amendment. See, e.g., Roberts v. City of Forest Acres, 902 F. Supp. 662, 670 (D.
S.C. 1995). The test for determining whether bail is excessive is "whether bail is set at a figure

9

higher than an amount reasonably calculated to insure that the accused will stand trial and submit
to sentence if convicted." United States v. Radford, 361 F.2d 777, 781 (4th Cir.), cert. denied,
385 U.S. 877 (1966) (internal quotation omitted). Plaintiff does not allege the amount of her
bond, but merely alleges that she spent roughly two weeks in jail, Compl.
should have been able to use her word as her bond, Compl.

~

~

102, and that she

225. As other courts have pointed

out, although "policy of requiring a cash bond may have been inconvenient, such an allegation is
not sufficient to state a constitutional claim for purposes of§ 1983." Roberts, 902 F. Supp. at
670. Moreover, plaintiff does not allege that any the remaining defendants were involved in the
bail decision. Accordingly, plaintiff fails to state an Eighth Amendment claim as to these
defendants.
4. Ninth Amendment
The Ninth Amendment provides that "[t]he enumeration in the Constitution, of certain
rights, shall not be construed to deny or disparage others retained by the people." U.S. Const.
amend. IX. "[T]he Ninth Amendment is 'a rule of construction, not one that protects any specific
right,' and so '[n]o independent constitutional protection is recognized which derives from the
Ninth Amendment and which may support a§ 1983 cause of action." Diaz v. City ofNY., No.
99-CV-2944, 2006 WL 3833164 at *7 (E.D.N.Y. Dec. 29, 2006) (quotation and citation omitted)
(concluding that a§ 1983 claim based on the Ninth Amendment fails to state a claim); see also

Perry v. Jones, No. 3:14-CV-71, 2015 WL 7016519 at *3 (E.D. Va. Nov. 12, 2015).
5. Fourteenth Amendment
Plaintiff also alleges a violation of the Fourteenth Amendment, which prohibits the States
from "depriv[ing] any person of life, liberty or property without due process oflaw." U.S. Const.
amend. XIV. It is unclear whether this claim refers to the Fourteenth Amendment to the extent

10

that it incorporates the Fourth Amendment to the States, see Wolf v. Colorado, 338 U.S. 25
(1949) (overruled on other grounds by Mapp v. Ohio, 367 U.S. 643 (1961)), 4 whether plaintiff
asserts a freestanding claim via the Equal Protection Clause of the Fourteenth Amendment, or
whether plaintiff asserts simply a due process claim. Her entire allegation is that defendants
denied, restricted, and limited her due process rights because of her race, gender, and social
status. Compl.

if 230. In support of her claim, plaintiff merely alleges that she is not white and

"does not possess a substantial amount of wealth and/or political influence." Id.
To the extent that plaintiff intended to invoke the right to the equal protection of the laws
secured by the Fourteenth Amendment, she has not pled facts sufficient to sustain a claim. The
Equal Protection Clause provides that "[n]o state shall ... deny to any person within its
jurisdiction the equal protection of the laws." It is in essence "a direction that all persons
similarly situated should be treated alike." City of Cleburne v. Cleburne Living Ctr., 473 U.S.
432, 439 (1985). "[T]o survive a motion to dismiss on an equal protection claim, a plaintiff must
plead sufficient facts to demonstrate plausibly that he was treated differently from others who
were similarly situated and that unequal treatment was the result of discriminatory
animus." Equity in Athletics v. Dep 't of Educ., 639 F.3d 91, 108 (4th Cir. 2011) (citing Morrison
v. Garraghty, 239 F.3d 648, 654 (4th Cir. 2001)). Plaintiff has failed to plead sufficient facts

with respect to either element. She states only that the daughter of the Wake County Sheriff, who
also is a white female, was charged with similar crimes and received a favorable outcome.
Compl. if 230. Even if the Court were to consider such a person to be "similarly situated" to
plaintiff for purposes of her claim, the claim still would be dismissed pursuant to Rule 12(b)(6)

4

The Court will consider the Fourth Amendment claim infra, under the summary judgment
standard.
11

because plaintiff failed to plead any facts "plausibly identifying any discriminatory intent on the
part of the ... decision makers." Equity in Athletics, 639 F.3d at 108.
Procedural due process claims must show that plaintiff ( 1) had a liberty or property
interest, (2) of which defendants deprived her, (3) without due process. See Kendall v. Balcerzak,
650 F .3d 515, 528 (4th Cir. 2011 ). In this context, due process generally requires notice and an
opportunity to be heard. See id at 528-29. Here, plaintiff has not alleged facts to support any of
these requirements. She does not state specifically what the property or liberty interest is of
which defendants allegedly deprived her. This omission also dooms any substantive due process
claim, which requires not only allegation of a liberty right or property interest but also a
governmental deprivation thereof that shocks the conscience or bears no rational relation to a
valid state objective. See, e.g., Amward Homes Inc. v. Town ofCary, 206 N.C. App. 38, 64
(2010). Even if the Court were to assume she had adequately pled the deprivation of a liberty or
property interest, she does not state how she failed to receive due process. Consequently, there is
no genuine issue of material fact as to whether conscience-shockingly arbitrary government
action or deprivation of a liberty interest without due process occurred, so this claim, too, must
fail.
SUMMARY JUDGMENT
In sum, the only claim that does not fail against the remaining defendants is plaintiffs §
1983 claim based on the Fourth Amendment. Summary judgment is proper only when, viewing
the facts in the light most favorable to the non-moving party, there is no genuine issue of
material fact, and the movant is entitled to judgment as a matter oflaw. Fed. R. Civ. P. 56;

Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Cox v. Cnty. of Prince William, 249 F.3d
295, 299 (4th Cir. 2001). An issue is "genuine" if a reasonable jury, based on the evidence, could

12

find in favor of the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986); Cox, 249 F.3d at 299. When addressing cross-motions for summary judgment, the court
must ask "whether the evidence presents a sufficient disagreement to require submission to the
jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 477
U.S.

at 251. In determining whether a genuine issue of material fact exists for trial, a trial court

views the evidence and the inferences in the light most favorable to the nonmoving party. Scott v.
Harris, 550 U.S. 372, 378 (2007). The party seeking summary judgment "bears the initial

responsibility of informing the district court of the basis for its motion, and identifying those
portions of [the record] which it believes demonstrate the absence of a genuine issue of material
fact." Celotex. 477 U.S. at 323. Once the moving party has met its burden, the non-moving party
must then "set forth specific facts showing that there is a genuine issue for trial." Matsushita
Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986).

Plaintiff alleges that the remaining defendants, acting in their individual capacities,
violated her Fourth Amendment rights by securing and searching her home and by arresting her.
Compl. ii 218.

I.

SECURING AND SEARCH OF HOME

The privilege of qualified immunity protects government officials from liability so long
as they could reasonably believe that their conduct does not violate clearly established law.
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); see also Henry v. Purnell, 652 F.3d 524, 531

(4th Cir. 2011) (en bane). Qualified immunity is only available to government officials who have
been sued in their personal or individual capacities; it is not available as a defense to an official
capacity suit. Ridpath v. Bd. of Governors Marshall Univ., 447 F.3d 292, 306 (4th Cir. 2006)
(citing Kentucky v. Graham, 473 U.S. 159, 165-67 (1985)).

13

When determining whether qualified immunity applies, a court "asks first whether a
constitutional violation occurred and second whether the right violated was clearly established."

Melgar v. Greene, 593 F.3d 348, 353 (4th Cir. 2010) (citing Saucier v. Katz, 533 U.S. 194
(2001)). Judges are permitted to exercise their discretion in regard to which of the two prongs
should be addressed first in light of the facts and circumstances of the particular case, Pearson v.

Callahan, 555 U.S. 223, 236 (2009), but the analysis ends if it is found that the officer did not
violate any right as he will not need to be entitled to any immunity. Abney v. Coe, 493 F.3d 412,
415 (4th Cir. 2007).
In Segura v. United States, the Supreme Court held that "securing a dwelling, on the basis
of probable cause, to prevent the destruction or removal of evidence while a search warrant is
being sought is not itself an unreasonable seizure of either the dwelling or its contents." 468 U.S.
796, 810 (1984 ). Here, the officers secured plaintiffs residence while a search warrant was being
obtained. There is no dispute that defendants secured the premises and waited outside thereof,
until the warrant was signed several house later. In light of Segura, plaintiff has failed to
establish that a violation of her Fourth Amendment rights occurred while defendants secured
their dwelling. Furthermore, even in the event that the securing of plaintiffs dwelling could be
found unreasonable, because a reasonable officer could believe that such actions were lawful
under these circumstances based on the holding in Segura, the right violated would not be clearly
established and defendants would be entitled to qualified immunity.
Defendants also are entitled to qualified immunity as to plaintiffs claims regarding the
search of her residence pursuant to a search warrant. A warrant issued by a neutral magistrate is
normally sufficient to establish that an officer acted in good faith or an objectively reasonable
manner in conducting a search. United States v. Ross, 456 U.S. 798, 823 n.32 (1982). An officer

14

would not be entitled to qualified immunity, however, following a search pursuant to a warrant if
"it is obvious that no reasonably competent officer would have concluded that a warrant should
issue." Malley v. Briggs, 475 U.S. 335, 341 (1986).
Detective Allen's application for the first warrant reflects that he received information
from law enforcement sources stating that Tyre and Dameon Myers were residing at plaintiffs
house. [DE 297 at 12]. Surveillance indicated that an unknown black male resembling photos of
Tyre Myers was seen on the back porch of the residence. Id A black female (plaintiff) left the
house, and when stopped, stated no one was in the house. Id. After being told information
indicated that Tyre Myers was inside the house, plaintiff refused to provide additional
information and was released. Id. During the traffic stop, no one was seen entering or leaving the
residence, but an unknown black male was seen opening the blinds. Id. Based on Detective
Allen's affidavit, a search warrant for Tyre and Dameon Myers was issued by a Johnston County
magistrate and executed by a number of the remaining defendants. The application for the
second warrant reflected law enforcement observations, while executing the first search warrant,
of a marijuana grow operation, including high intensity grow lights, safes, fertilizer bags, and
growing pots containing marijuana seeds. Id. at 13. Based on that affidavit, a search warrant was
issued for the residence. Plaintiff has failed to offer any evidence suggesting that no reasonably
competent officer would conclude that a warrant to search her residence should not have issued
based on the information provided by Detective Allen. Accordingly, defendants would be
entitled to qualified immunity as they were objectively reasonable in relying on the magistrate's
issuance of the warrant.

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11.

VALIDITY OF WARRANT

To the extent that plaintiff argues that Detective Allen obtained the search warrant under
false pretenses, her claim fails. An officer "contravenes the Fourth Amendment when he
procures a search warrant through the use of false statements, whereby a magistrate would not
have otherwise found probable cause." Unus v. Kane, 565 F.3d 103, 124 (4th Cir. 2009) (citing

Franks v. Delaware, 438 U.S. 154, 155-56 (1978)). The party challenging the warrant must
make a "substantial preliminary showing that the false statement knowingly and intentionally, or
with reckless disregard for the truth, was included by the affiant in the warrant affidavit."

Franks, 438 U.S. at 155-56. Plaintiff has made no such showing here beyond the allegations in
her complaint.
Nor has plaintiff shown that her Fourth Amendment rights were violated by the search of
her dwelling pursuant to a search warrant. When issuing a warrant, a judge uses a "totality of the
circumstances analysis." Illinois v. Gates, 462 U.S. 123, 238 (1983). "[This] standard allows a
magistrate judge to review the facts and circumstances as a whole and make a common sense
determination of whether 'there is a fair probability that contraband or evidence of a crime will
be found in a particular place."' United States v. Williams, 974 F.2d 480, 481 (4th Cir. 1992)
(quoting Gates, 462 U.S. at 238). A magistrate's decision to issue a warrant is given great
deference, and it is reasonable to assume both that Tyre Myers was in the house and that further
evidence of drug dealing would be found in the house after officers' plain view sighting of drug
paraphernalia. United States v. Grossman, 400 F.3d 212, 217-18 (4th Cir. 2005). Though
plaintiff argues that issues of material fact remain regarding false or misleading statements made
by Detective Allen to the magistrate, she has failed to proffer any evidence to support such a
claim. Accordingly, the Court finds no basis to presume that the search warrant was not valid,

16

and defendants' search of plaintiffs residence pursuant to it was therefore not a violation of Ms.
Myers's Fourth Amendment rights.

Ill.

FALSE IMPRISONMENT

Following execution of the search warrant, plaintiff was arrested for, inter alia,
trafficking in cocaine by possess and manufacturing. "[A] warrantless arrest by a law officer is
reasonable under the Fourth Amendment where there is probable cause to believe that a criminal
offense has been or is being committed." Devenpeckv. Alford, 543 U.S. 146, 152 (2004).
"Probable cause exists when the facts and circumstances within an officer's knowledge-or of
which he possesses reasonably trustworthy information-are sufficient in themselves to convince
a person of reasonable caution that an offense has been or is being committed." Wadkins v.

Arnold, 214 F. 3d 535, 539 (4th Cir. 2000). To prove the absence of probable cause plaintiff
must introduce evidence that made it unjustifiable for a reasonable officer to conclude she was
involved in the charged offense. Brown v. Gilmore, 278 FJd 362, 368 (4th Cir. 2002).
Detective Allen's affidavit states that a search of the residence revealed "approximately
74.9 grams of cocaine," "a large amount of money," and "a press ... for the packaging of
narcotics." Allen Aff. 9i[ 12. Because these objects were found in plaintiffs residence, it was
objectively reasonable for officers to believe that plaintiff had committed the offense of drug
trafficking. Accordingly, there was probable cause to arrest for at least one charge. The Court
thus need not determine whether officers also had probable cause to arrest plaintiff for other
charges. See Barry v. Fowler, 902 F.2d 770, 773 n.5 (9th Cir. 1990); Edwards v. City of

Philadelphia, 860 F.2d 568, 575-76 (3d Cir. 1988). Any false arrest claim, therefore, fails, and
summary judgment in defendants' favor is appropriate.

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Given that the Court recommends dismissal of plaintiffs' federal claims and summary
judgment of the Fourth Amendment claims, it declines to exercise supplemental jurisdiction of
any state law claims for false imprisonment, emotional distress, loss of consortium, destruction
of property, malicious prosecution, fraud, and loss of earning capacity against the remaining
defendants in their individual capacity.
REMAINING MOTIONS
Plaintiff has filed several motions which the Court now addresses.

I.

MOTION TO DISQUALIFY AND RECUSE

The Court considers at the outset petitioner's motion to disqualify and for recusal of both
the undersigned and Magistrate Judge Jones. Petitioner contends that 28 U.S.C. § 455(a) requires
the undersigned's recusal because each has given the perception of impropriety, violated the
Code of Conduct for United States Judges, has ignored stare decisis, and has failed to uphold and
support the Constitution of the United States. The memorandum accompanying plaintiffs
motion lists a number of examples of bias, all of which relate to rulings which plaintiff perceives
as unfavorable.
Section 455(a) provides that a judge of the United States "shall disqualify himself in any
proceeding in which his impartiality might reasonably be questioned." 28 U.S.C. § 455(a).
However, "judicial rulings alone almost never constitute a valid basis for a bias or partiality
motion." Liteky v. United States, 510 U.S. 540, 551 (1994) (citation omitted). "Even remarks
made 'that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases,
ordinarily do not support a bias or partiality challenge.'" United States v. Lentz, 524 F .3d 501,
530 (4th Cir. 2008) (citing Liteky, 510 U.S. at 540). Moreover, "[t]he alleged bias must derive
from an extra-judicial source." In re Beard, 811F.2d818, 827 (4th Cir. 1987). "An extra-judicial

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source" is a basis "other than what the judge has learned or experienced from his participation in
the case." Sine v. Local No. 922 Int'/ Bhd. a/Teamsters, 882 F.2d 913, 914 (4th Cir. 1989).
Neither "opinions held by judges as a result of what they learned in earlier proceedings" nor
opinions "properly and necessarily acquired in the course of the proceedings" have been found to
be the basis of bias or prejudice that might require recusal. Liteky, 510 U.S. at 551.
In the present case, petitioner has failed to demonstrate any extra-judicial bias justifying
disqualification of either the undersigned or Magistrate Judge Jones. The Court's rulings during
petitioner's trial do not illustrate any sort of prejudice against plaintiff. In sum, there is no
reasonable factual basis for questioning the Court's impartiality and plaintiffs motion for recusal
is hereby denied.

II.

RULE 59(E) MOTION TO ALTER JUDGMENT

Plaintiff has filed a motion to alter or amend the Court's prior order denying plaintiffs
motions to compel and granting the USMS's motion to quash pursuant to Rule 59(e) of the
Federal Rules of Civil Procedure. A Rule 59(e) motion may be granted to accommodate an
intervening change in controlling law, to account for new evidence, or to correct a clear error of
law or prevent manifest injustice. Pac Ins. Co. v. Am. Nat'/ Fire Ins. Co., 148 F.3d 396, 403 (4th
Cir. 1998). Plaintiff fails to articulate any arguments that fall within these parameters, thus her
motion is denied.
Even if the Court were to consider her motion as an appeal of Magistrate Judge Jones's
decision pursuant to Rule 78(a) of the Federal Rules of Civil Procedure, the outcome would be
the same. Under Local Rule 72.4(a), Judge Jones's order should not be disturbed unless it is
"clearly erroneous or contrary to law." Local Rule 72.4(a). It is not.

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Judge Jones found that plaintiffs subpoena to the USMS was a "fishing expedition" and
explained why the information sought has no relevance to her claims. Most notably, there are no
claims remaining against either the USMS or the Columbus District Attorney's office pertaining
to the alleged electronic surveillance that was the subject of plaintiffs subpoenas. The only
remaining defendants are employees of the Johnston County Sheriffs Office, who did not rely
on any electronic surveillance to take any actions related to this case. Accordingly, the
information sought by plaintiff is not relevant to the remaining issues in this case, and Judge
Jones correctly concluded that her subpoenas must be quashed. Accordingly, plaintiffs Rule
59(e) motion is denied.

III.

MOTION FOR DEFAULT JUDGMENT

Plaintiff requests judgment as a matter of law on her Rule 59 motion and motion to
disqualify/recuse. As the Court has decided those motions, see supra, plaintiffs motion is moot
and is denied as such.

IV.

MOTION FOR RELIEF FROM JUDGMENT PURSUANT TO RULE 60(B)

Plaintiff requests that the Court reconsider its rulings in orders dated December 2, 2014,
January 20, 2015, and January 29, 2015, as well Magistrate Judge Jones's ruling in an order
dated July 28, 2015, pursuant to Rule 60 of the Federal Rules of Civil Procedure. Rule 60 of the
Federal Rules of Civil Procedure authorizes the Court to correct a clerical mistake or mistake
"whenever one is found in a judgment, order, or other part of the record." Fed. R. Civ. P. 60(a).
It also authorizes the Court to relieve a party from a final judgment, order, or proceeding for,

inter alia, mistake, excusable neglect, fraud, newly discovered evidence, or "any other reason
that justifies relief." Fed. R. Civ. P. 60(b). "[B]efore a party may seek relief under Rule 60(b), a
party first must show timeliness, a meritorious defense, a lack of unfair prejudice to the opposing

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party, and exceptional circumstances." Dowell v. State Farm Fire & Cas. Auto. Ins. Co., 993
F.2d 46, 48 (4th Cir. 1993) (internal quotation omitted). A motion under Rule 60(b) "must be
made within a reasonable time" after entry of the order being challenged. Fed. R. Civ. P.
60(b)(c)(1 ). He must then demonstrate that relief is appropriate based on one of the grounds
listed in Rule 60(b). Dowell, 993 F.2d at 48. A decision to grant or deny a Rule 60(b) motion lies
within the sound discretion of the Court. Id. at 47.
Plaintiffs motion requests that the Court reconsider all of the aforementioned prior
orders. Plaintiff points to neither a clerical mistake, nor any excusable neglect, inadvertence, or
surprise, nor does she point to any newly discovered evidence or fraud. Although plaintiff argues
that the orders are void, she presents no cogent argument in support of this contention. A
judgment "is void only ifthe court that rendered it lacked jurisdiction of the subject matter, or of
the parties, or if it acted in a manner inconsistent with due process of law." Schwartz v. United
States, 976 F.2d 213, 217 (4th Cir. 1992) (quoting 11 Wright & Miller, Federal Practice and
Procedure§ 2862 AT 198-200 (1973)). None of these circumstances are present. The Court has

jurisdiction over both the parties and the subject matter, and there has been no denial of
plaintiffs due process rights, as she had ample opportunity to assert her arguments and, indeed,
did assert her rights.
Instead, plaintiffs complaints about the Court's orders seem to fall within the category of
Rule 60(b)(6), which entitles a movant to relief based on "any other reason." Fed. R. Civ. P.
60(b)(6). "[C]ase law limits the reasons for which a court may grant relief under Rule 60(b)(6),"
however. Dowell, 993 F.2d at 48. "[I]ts context requires that it may be invoked only in
'extraordinary circumstances' when the reason for relief from judgment does not fall within the
list of enumerated reasons given in Rule 60(b)(l)-(5)." Aikens v. Ingram, 652 F.3d 496, 500 (4th

21

Cir. 2011) (en bane). Here, plaintiff offers no extraordinary circumstances that justify relief.
Instead, plaintiff merely reiterates the arguments previously before the Court. Accordingly,
plaintiffs motion for relief from judgment under Rule 60(b) is denied.
CONCLUSION
For the foregoing reasons, defendant's motion for summary judgment [DE 295] is
GRANTED and plaintiffs motion for summary judgment [DE 302] is correspondingly
DENIED. The Court DECLINES to exercise supplemental jurisdiction over any state law claims
against the remaining defendants in their individual capacities.
Plaintiffs motions to disqualify/recuse [DE 287], to alter judgment pursuant to Rule
59(e) of the Federal Rules of Civil Procedure [DE 288], and for relief from judgment pursuant to
Rule 60(b) of the Federal Rules of Civil Procedure [DE 308] are DENIED. Plaintiffs motion for
default judgment [DE 306] is DENIED AS MOOT. The Clerk of Court is DIRECTED to enter
judgment accordingly and to close the case.

SO ORDERED, this

/.r-day of January, 2016.

~¥
United States District Judge

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