Spivey v. Norris et al

Filing 69

ORDER granting 49 Motion for Summary Judgment; granting 53 Motion to Seal Document 52 PROPOSED SEALED Exhibit; and granting 54 Motion for Summary Judgment. Signed by US District Judge Terrence W. Boyle on 3/28/2017. (Stouch, L.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
SOUTHERN DIVISION
No. 7:15-CV-160-BO
DANIELLE GORE SPIVEY,

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Plaintiff,

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DETECTIVE KEVIN NORRIS, in his
official and individual capacity; LEWIS L.
HATCHER, in his official capacity as
Columbus County Sheriff; and WESTERN
SURETY CO.,' as the SURETY for the
Columbus County Sheriff,
Defendants.

ORDER

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This cause comes before the court on defendants' motions for summary judgment
pursuant to Rule 56 of the Federal Rules of Civil Procedure. The appropriate responses and
replies have been filed and the matters are ripe for ruling. For the reasons discussed below,
defendants' motions are granted in their entirety.
BACKGROUND
Plaintiff filed this action on August 1, 2015, asserting seven claims arising out of alleged
h~rassment

by Detective Kevin Norris (Norris) of the Columbus County Sheriff's Office. On

January 11, 2016, the Court allowed plaintiff to file an amended complaint and granted in part a
motion to dismiss by Norris. Plaintiffs amended complaint asserts 42 U.S.C. § 1983 claims
against Norris individually and in his official capacity for violation of plaintiffs Fourth,
Fourteenth and First Amendment rights and malicious prosecution; against Sheriff Hatcher in his
official capacity for supervisory liability under 42 U.S.C. § 1983; against Norris individually and
in his official capacity for malicious prosecution, abuse of process, and intentional infliction of

emotional distress under state law; against Norris in his individual capacity and Sheriff Harris in
his official capacity for negligent infliction of emotional distress under state law; and a claim
against Western Surety upon bond under N.C. Gen. Stat. § 58-76-5. Defendants Norris in his
official capacity, Harris, and Western Surety have filed a motion for summary judgment on all
claims. Defendant Norris in his individual capacity has moved separately for summary judgment
on all claims.
Plaintiff alleges that Norris is married to a close friend of plaintiffs mother and took
advantage of this relationship to insert himself into plaintiffs life. Plaintiff further alleges that
she became the subject and victim of a personal vendetta held by Norris, who, after attempting
and failing to break up plaintiffs relationship with her husband, stopped plaintiffs husband on
suspicion of driving while intoxicated and had plaintiff arrested on felony and misdemeanor
charges involving an allegedly forged prescription for narcotic pain medication.
The facts as they relate to plaintiffs charge, arrest, and prosecution are as follows.
Plaintiff saw Dr. Lawson, a dentist, on August 17, 2012, to address swelling which had occurred
following a root canal performed by a different provider. Lawson Dep. at 40-42. Dr. Lawson
noted in his chart that he prescribed plaintiff penicillin and twenty tablets of Percocet 1 10/650
that day. Id at 42. Plaintiff returned to Dr. Lawson's office on August 20, 2012, for a tooth
extraction and was prescribed twenty tablets of Percocet. Id at 4 7.
In the fall of 2012, Norris received information that plaintiff had tried to fill a
prescription for narcotic pain medication at a CVS Pharmacy in Loris, South Carolina, and that
the pharmacist could not verify the prescription as being legitimate. [DE 52 at 8]. Norris further

The records reflect prescriptions either written or filled for Endocet or Percocet, both of which
are brand name drugs containing a mixture of acetaminophen and oxycodone. See
https://medlineplus.gov/druginfo/meds/a682132.htmlv (last visited 28 March 2017).
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became aware of an allegation that plaintiff had passed a forged prescription at the Rite Aid
Pharmacy in Whiteville, North Carolina in August 2012. Id. Norris referred the matter to State
Bureau oflnvestigation (SBI) Agent Cherry for further investigation due to Norris' marriage to a
close friend of plaintiffs mother. Norris Dep. 19; 39-40. Although Norris referred the matter to
Agent Cherry, Norris continued to participate in the investigation, accompanying Cherry to
interviews and meetings. See generally [DE 52].
Cherry reviewed plaintiffs pharmacy records and reviewed the original prescription from
Dr. Lawson which had been filled at the Rite Aid Pharmacy on August 17, 2012. Cherry Dep. at
36-37; 61. Cherry determined that it appeared to him the prescription had been altered to reflect
that thirty tablets of Endocet/Percocet had been prescribed as opposed to twenty tablets. Id at
100. On November 6, 2012, Cherry and Norris spoke to Dr. Lawson, who told the investigators
that his records reflected that twenty tablets of Percocet had been prescribed to plaintiff on
August 17, 2012. [DE 52 at 43]. Cherry's notes also reflect that he and Norris interviewed Dr.
Lawson a second time on November 29, 2012, at 11:10 a.m. regarding Dr. Lawson's general
procedures when writing prescriptions. [DE 52 at 11-12]. On November 7, 2012, Cherry and
Norris, along with an agent from the South Carolina Department of Health and Environmental
Control, interviewed plaintiff at her place of employment in South Carolina. [DE 52 at 15-16].
Plaintiff denied altering a prescription but stated that her husband frequently took her Percocet
pills for his own use without plaintiffs permission. Id; Spivey Dep. at 70.
On November 19, 2012, an order was filed in Columbus County Superior Court directing
Dr. Lawson to provide plaintiffs medical records to the Columbus County Sheriffs Office. [DE
52 at 18-19]. On November 29, 2012, Cherry and Norris met with Assistant District Attorney
(ADA) Nance who, after hearing the recitation of the case, found that there was probable cause

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to arrest plaintiff. ADA Nance told Cherry to seek warrants for plaintiffs arrest. Cherry Dep.
13, 24, 94-5. The same day, Cherry appeared before Magistrate G.L. Greene at 9:30 a.m. and
provided as the complaining witness sworn testimony regarding plaintiff. Magistrate Greene
determined that probable cause had been established and signed arrest warrants for plaintiff for
unlawfully obtaining possession of Percocet by altering a prescription, N.C. Gen. Stat. § 90108(a)(10), and unlawful possession of more than fourteen but less than twenty-eight grams of
opiates. N.C. Gen. Stat.§ 90-95(h)(4); [DE 52 at 57-58]. Also the same day, Cherry telephoned
plaintiff to inform her of the outstanding warrants for her arrest and plaintiff later turned herself
in. Spivey Dep. 74-76.
On January 15, 2013, plaintiff, represented by counsel, entered anAlfordplea2 to a
reduced charge of misdemeanor possession of a Schedule II controlled substance. [DE 63-3 at 817]. Plaintiff understood that this outcome would allow her to keep her nursing license and be
able to expunge her criminal record upon satisfaction of certain conditions under N.C. Gen. Stat.
§ 90-96. Spivey Dep. 80-81. Following entry of her plea plaintiff was sentenced to a term of
probation. On February 22, 2013, a dismissal notice ofreinstatement was filed dismissing
plaintiffs misdemeanor simple possession conviction "per compliance to 90-96 conditions."
[DE 63-3 at 6]. Plaintiff contends that, although the document does not indicate as much, her
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conviction was dismissed following production by her criminal defense attorney of the original

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"[A]n 'Alford plea' constitutes a guilty plea in the same way that a plea of nolo contendere or
no contest is a guilty plea." State v. Alston, 139 N.C. App. 787, 792 (2000) (internal quotation
and citation omitted); see also North Carolina v. Alford, 400 U.S. 25, 36 (1970).

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When asked for this case to review the prescription that he wrote on August 17, 2012, Dr.
Lawson stated that in his handwriting thirty tablets of Percocet 10/650 had been prescribed.
Lawson Dep. at 56-57. Dr. Lawson further stated that he had not been shown the August 17,
2012, prescription by Cherry or Norris when they interviewed him, and that ifhe had he would
have told them that it was in his handwriting and that he had written the prescription for thirty
tablets, not twenty as was reflected in his chart. Id. at 57-59. Dr. Lawson could not recall
whether when he spoke to Cherry and Norris they indicated that plaintiff was being investigated
for having altered Dr. Lawson's prescription, and that if they had he would have asked to see the
prescription from the pharmacy to ensure that there was not a mistake in his records. Id. at 6263.
The facts as they relate to the stop of plaintiffs husband's vehicle are as follows. Norris
has proffered evidence that while on patrol on November 8, 2012, the day after plaintiff was
interviewed by Norris and Cherry at her workplace, Norris witnessed a car travel left of center
and come close to hitting a bridge. Norris Dep. at 32. Norris initiated a vehicle stop, interacted
with Mr. Spivey who was driving the car, noticed the odor of alcohol, and contacted the traffic
team who then took control of the scene. Id. at 36. Plaintiff does not dispute that another deputy
completed the stop and transported her husband to the county jail where his alcohol level was
tested and he received a citation. Spivey Dep. at 28-9.
DISCUSSION
A motion for summary judgment may not be granted unless there are no genuine issues
of material fact for trial and the movant is entitled to judgment as a matter oflaw. Fed. R. Civ.
P. 56(a). The moving party bears the initial burden of demonstrating the absence of a genuine
issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If that burden has

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been met, the non-moving party must then come forward and establish the specific material facts
in dispute to survive summary judgment. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 588 (1986). 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). However, "[t]he mere existence of a scintilla
of evidence" in support of the nonmoving party's position is not sufficient to defeat a motion for
summary judgment; "there must be evidence on which the [fact finder] could reasonably find for
the [nonmoving party]." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).
Speculative or conclusory allegations will not suffice. Thompson v. Potomac Elec. Power Co.,
312 F.3d 645, 649 (4th Cir. 2002).

I.

Section 1983 claims against Norris in his officiai3 and individual capacity
Plaintiff claims that Norris in his individual and official capacity violated her Fourth,

First, and Fourteenth Amendment rights. In support of this claim, plaintiff alleges that Norris,
acting under color of state law and in an attempt to separate plaintiff from her husband, used
police action against plaintiffs husband to stop him for driving while intoxicated. Plaintiff
alleges that acting under color of state law Norris accessed plaintiffs prescription medicine
record without a bona fide investigation or court order, and that Norris used police action against
plaintiff to retaliate against her for communicating with her husband by causing her to be
arrested for felony and misdemeanor drug charges without probable cause.

Fourth Amendment claim 4
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Claims against government officials in their official capacities are in all respects suits against
the agency or government entity itself. Kentucky v. Graham, 473 U.S. 159, 166 (1985).
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The Fourth Amendment protects individuals from unreasonable searches and seizures.
U.S. Const. Amd. IV. Where, as here, an individual was arrested pursuant to an arrest warrant
issued by a neutral and detached magistrate, the seizure will be found to be unreasonable only if
the officer did not have probable cause to seek the warrant. Malley v. Briggs, 475 U.S. 335, 344
n. 7 (1986) (issuance of a warrant does not "break the causal" chain between the complaint and
the arrest). The question is then "whether a reasonably well-trained officer in [Cherry's] position
would have known that his affidavit failed to establish probable cause and that he should not
have applied for the warrant." Id. at 345. Probable cause is a result of a practical, commonsense consideration of all of the circumstances. Illinois v. Gates, 462 U.S. 213, 238 (1983);

Smith v. Munday, 848 F.3d 248, 253 (4th Cir. 2017). Probable cause "requires more than a bare
suspicion" but less than evidence sufficient to convict. United States v. Gray, 137 F.3d 765, 769
(4th Cir. 1998). It is an objective standard which "turns on two factors: the suspect's conduct as
known to the officer, and the contours of the offense thought to be committed by that conduct."

Smith, 848 F.3d at 253 (internal quotation marks and citation omitted); see also Graham v.
Gagnon, 831 F .3d 176, 183 (4th Cir. 2016) ("we have repeatedly held that arrest warrants do not
confer immunity if it was objectively unreasonable to conclude there was probable cause for the
arrest."). Only the information known to the officer at the time he sought the arrest warrant is
relevant. Smith, 848 F .3d at 253. Although the "shield of immunity" conferred by an arrest

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Plaintiffs second claim for relief against Norris alleges a claim for malicious prosecution and
seizure in violation of 42 U.S.C. § 1983. Plaintiffs malicious prosecution claim under§ 1983 is
properly understood as a Fourth Amendment claim for unreasonable seizure. See Lambert v.
Williams, 223 F.3d 257, 262 (4th Cir. 2000) ("there is no such thing as a'§ 1983 malicious
prosecution' claim.").

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warrant can be lost, "the threshold for establishing this ... is a high one, and it should be."
Messerschmidt v. Millender, 565 U.S. 535, 547 (2012).
The undisputed facts which were known to Cherry at the time that he appeared before the
magistrate are as follows. Cherry had been made aware of questionable circumstances involving
plaintiff related to filling prescriptions for narcotic pain medication, Cherry had reviewed
plaintiff's prescription history, Cherry had reviewed the original prescription presented by
plaintiff to the Rite Aid pharmacy in Whiteville and believed that it had been altered, thirty
tablets of Percocet/Endocet had been dispensed to plaintiff on August 17, 2012, by the Rite Aid
pharmacy in Whiteville, the prescriber, Dr. Lawson, had informed Cherry that he had
documented in plaintiff's chart that he (Lawson) had written plaintiff a prescription for twenty
tablets of Percocet, and Cherry had spoken to plaintiff who denied that she had altered Dr.
Lawson's prescription but had stated that her husband took her pain medication at times.
Even viewing the facts in the light most favorable to plaintiff, there is not a genuine issue
of material fact as to whether Cherry's probable cause determination was objectively reasonable.
Cherry had done sufficient investigation to form more than a bare suspicion that plaintiff had
altered Dr. Lawson's prescription for Percocet to dispense thirty instead of twenty pills as
prescribed. Although plaintiff takes issue with how the investigation began, and there is
conflicting testimony regarding the role of the participants in the investigation and in the
recollection of conversations which took place, Cherry's testimony and contemporaneous notes
provide sufficient support for his probable cause determination. It is undisputed that whatever
role Norris played in the investigation of plaintiff he was not the complaining witness who
presented an affidavit to Magistrate Greene. And, as discussed above, although the issuance of
the arrest warrant would not shield an officer if his proffered basis for the warrant was

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objectively unreasonable, that "a neutral magistrate has issued a warrant is the clearest indication
that the officers acted in an objectively reasonable manner .... " Messerschmidt, 565 U.S. at
546. That plaintiff contends that the ADA when presented with the original prescription deemed
the charge unsupported or that Dr. Lawson has stated in his deposition that if he had been shown
the original prescription he would have confirmed that it was written for thirty tablets not twenty
does not change this result. See Herring v. United States, 55.U.S. 135, 139 (2009) ("When a
probable-cause determination was based on reasonable but mistaken assumptions, the person
subjected to a search or seizure has not necessarily been the victim of a constitutional violation.
The very phrase' probable cause' confirms that the Fourth Amendment does not demand all
possible precision."); Pierson v. Ray, 386 U.S. 547, 555 (1967) ("[A] peace officer who arrests
someone with probable cause is not liable for false arrest simply because the innocence of the
suspect is later proved" ).
Norris proceeding in his individual capacity raises qualified immunity as a defense to
plaintiffs constitutional claims. Qualified immunity shields 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). It protects "all but the plainly incompetent or those who
knowingly violate the law." Malley, 475 U.S. at 341; see also Reichle v. Howards, 132 S. Ct.
2088, 2093 (2012). A court employs a two-step procedure for determining whether qualified
immunity applies that "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)).

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Because Cherry's probable cause for arrest determination was not objectively
unreasonable, Norris is entitled to qualified immunity in his individual capacity as plaintiff
cannot establish that a violation of her Fourth Amendment rights occurred. Summary judgment
in defendants' favor is therefore appropriate on plaintiffs Fourth Amendment unlawful seizure
and malicious prosecutions claims against Norris in both his official and individual capacities.
First Amendment and Fourteenth Amendment claim

Plaintiff contends that her First Amendment right to freedom of association and her
Fourteenth Amendment right to privacy, personal autonomy in her marriage, and equal
protection were violated by Norris. Insofar as this claim is derivative of her Fourth Amendment
unlawful seizure or malicious prosecution claim, it fails as summary judgment in favor of
defendants is appropriate and there is no genuine issue of material of fact as to whether
plaintiffs Fourth Amendment rights were violated. Insofar as this claim is based on Norris'
stop of plaintiffs husband for driving under the influence, it also fails. Plaintiff has failed to
proffer any evidence in response to the motion for summary judgment which would create a
genuine issue of material fact as to whether Norris interfered with plaintiffs right to privacy, free
association, or equal protection of the law when he stopped plaintiffs husband's vehicle on
suspicion of drunk driving. Norris in his individual capacity is entitled to qualified immunity
and summary judgment is appropriate in favor of defendants on this claim.
II.

Section 1983 supervisory liability claim against Sheriff Hatcher
A claim for supervisory liability under § 1983 requires a plaintiff to show
(1) that the supervisor had actual or constructive knowledge that his subordinate
was engaged in conduct that posed "a pervasive and unreasonable risk" of
constitutional injury to citizens like the plaintiff; (2) that the supervisor's response
to that knowledge was so inadequate as to show "deliberate indifference to or tacit
authorization of the alleged offensive practices,"; and (3) that there was an

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"affirmative causal link" between the supervisor's inaction and the particular
constitutional injury suffered by the plaintiff.

Shaw v. Stroud, 13 F.3d 791, 799 (4th Cir. 1994). Because summary judgment is appropriate in
favor of defendants on plaintiffs substantive constitutional claims, she also cannot proceed to
trial on a claim that Sheriff Hatcher is liable in his supervisory capacity for Norris' conduct.
Further, the record is devoid of evidence which would tend to show that Sheriff Hatcher acted
with deliberate indifference or an affirmative causal link between any action by Sheriff Hatcher
and an alleged constitutional injury. Nor has plaintiff come forward with any evidence which
would tend to show a pattern or practice of discrimination by the Sheriffs Office under Monell
and its progeny. See Monell v. New York City Dep 't ofSoc. Serv., 436 U.S. 658, 694 (1978); see

also Wilcoxson v. Buncombe Cty., 129 F. Supp. 3d 308, 317 (W.D.N.C. 2014) (North Carolina
sheriff is final law enforcement policymaker for county and subject to liability under Monell).
Summary judgment in favor of Sheriff Hatcher on this claim is therefore appropriate.
III.

State law claims
Plaintiff has alleged three state law claims against all defendants. In his individual

capacity, Norris raises the defense of public officer immunity. Public officer immunity protects
public officials performing discretionary acts unless their acts are found to be malicious, corrupt,
or outside the scope of their duties. Evans v. Chalmers, 703 F.3d 636, 657 (4th Cir. 2012).

Malicious prosecution
A state law claim for malicious prosecution requires that a plaintiff establish "( 1) the

defendant initiated the earlier proceeding; (2) malice on the part of the defendant in doing so; (3)

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lack of probable cause for the initiation of the earlier proceeding; and (4) termination of the
earlier proceeding in favor of the plaintiff." Beroth Oil Co. v. Whiteheart, 173 N.C. App. 89, 99
(2005). Because, as discussed above, probable cause supported Cherry's warrant application,
plaintiffs malicious prosecution claim fails. Public officer immunity further shields the claim
against Norris in his individual capacity as an arrest supported by probable cause is neither
malicious nor corrupt. See Anderson v. Caldwell Cty. Sheriff's Office, 524 F. App'x 854, 863
(4th Cir. 2013) (where probable cause existed to support arrest warrant individual capacity
defendants shielded from liability) (citing Beeson v. Palombo, 727 S.E.2d 343, 346 (N.C. App.
2012)).

Abuse ofprocess
"The distinction between an action for malicious prosecution and one for abuse of
process is that malicious prosecution is based upon malice in causing the process to issue, while
abuse of process lies for its improper use after it has been issued." Barnette v. Woody, 242 N.C.
424, 431 (1955). "Abuse of process requires both an ulterior motive and an act in the use of the
legal process not proper in the regular prosecution of the proceeding." Stanback v. Stanback,
297 N.C. 181, 200 (1979) (quotation omitted) overruled on other grounds by Dickens v. Puryear,
302 N.C. 437 (1981 ). "The ulterior motive requirement is satisfied when the plaintiff alleges that
the [] action was initiated by defendant or used by him to achieve a collateral purpose not within
the normal scope of the process used. The act requirement is satisfied when the plaintiff alleges
that once the [] proceeding was initiated, the defendant committed some wilful act whereby he
sought to use the existence of the proceeding to gain advantage of the plaintiff in respect to some
collateral matter." Id at 201 (citation omitted).

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Although plaintiff's deposition testimony, alone, supports her contention that defendant
Norris acted with an ulterior motive in his dealings with her and her husband, the record reflects
no genuine issue of material fact as to whether the criminal process involving either plaintiff or
her husband, who is not a party to this action, once initiated, involved some act by Norris which
was not proper in the regular prosecution of the proceeding. Public officer immunity therefore
applies and summary judgment in defendants' favor is appropriate on this claim.

Intentional and negligent infliction of emotional distress
A claim for intentional infliction of emotional distress requires a plaintiff to demonstrate
"(1) extreme and outrageous conduct, (2) which is intended to cause and does cause (3) severe
emotional distress to another." Dickens, 302 N.C. at 452. A claim for negligent infliction of
emotional distress requires a plaintiff to show "( 1) the defendant negligently engaged in conduct,
(2) it was reasonably foreseeable that such conduct would cause the plaintiff severe emotional
distress (often referred to as "mental anguish"), and (3) the conduct did in fact cause the plaintiff
severe emotional distress." Johnson v. Ruark Obstetrics & Gynecology Assocs., P.A., 327 N.C.
283, 304 (1990). Severe emotional distress under both theories ofrelief is defined as "any
emotional or mental disorder, such as, for example, neurosis, psychosis, chronic depression,
phobia, or any other type of severe and disabling emotional or mental condition which may be
generally recognized and diagnosed by professionals trained to do so." Id.; see also Waddle v.

Sparks, 331 N.C. 73, 83 (1992) (adopting same standard for intentional infliction claims).
Plaintiff alleges that she suffers from severe anxiety, trouble sleeping, muscle tension,
headaches, and feeling overwhelmed as a result of the criminal proceedings. Plaintiff referenced
in response to interrogatories her primary care physician, Dr. Armonio, who diagnosed her with
anxiety, [DE 63-9], but in response to the motion for summary judgment has failed to come

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forward with any forecast of medical evidence which would support her allegation that her
emotional distress has been severe. See Phillips v. Rest. Mgmt. of Carolina, L.P., 146 N.C. App.
203, 214 (2001) (citation omitted); Waddell, 331 N.C. at 82 (to survive motion for summary
judgment plaintiff must "forecast sufficient evidence of all essential elements of their claims.");
see also Byrd v. Hopson, 265 F. Supp. 2d 594, 605 (W.D.N.C. 2003) (medical records which fail
to disclose treatment for severe distress or consultation of mental health professionals
insufficient to resist summary judgment on intentional infliction of emotional distress claim).
Summary judgment is therefore appropriate in favor of each defendant on plaintiffs emotional
distress claims.
Claim on bond
Because the Court has determined that summary judgment in favor of defendants is
appropriate on each of plaintiffs claims for liability, plaintiffs claim against the surety is
properly dismissed.
CONCLUSION
For the foregoing reasons, defendants' motions for summary judgment [DE 49 & 54] are
GRANTED. Defendants' motion to seal [DE 53] is also GRANTED. The clerk is DIRECTED
to enter judgment and close the file.

SO ORDERED, this ~day of March, 2017.

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;fuNCE W. BOYLE

/J =r '
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UNITED STATES DISTRICT JUDGE

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