Cybernet, LLC et al v. David et al
Filing
111
ORDER - Defendant David's motion for summary judgment [DE-87] and Defendants McVicker's and Deaver's motion for summary judgment [DE-91] are allowed as to the § 1983 claim, the declaratory judgment claim, and takings claim under the United States Constitution, and the state law claims are remanded to Bladen County Superior Court. The Clerk is directed to close the case. Signed by US Magistrate Judge Robert B. Jones, Jr. on 11/2/2018. (Grady, B.)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
SOUTHERN DIVISION
No. 7:16-CV-16-RJ
CYBERNET, LLC and
ALADDIN REAL ESTATE, LLC,
)
)
)
Plaintiffs,
)
)
v.
)
)
JONATHAN DAVID, in his personal
)
capacity and his official capacity as
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District Attorney for the 13th Prosecutorial )
District of North Carolina, JAMES
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MCVICKER, in his personal capacity and )
his official capacity as Sheriff of Bladen
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County, North Carolina, and TRAVIS
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DEAVER, in his personal capacity and his )
official capacity as a Deputy Sheriff of
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Bladen County, North Carolina,
)
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Defendants.
)
ORDER
This matter comes before the court on the motions for summary judgment of Defendant
Jonathan David [DE-87] and Defendants James McVicker and Travis Deaver [DE-91]. All
responsive briefing is complete, and the matters are ripe for disposition. For the reasons set forth
below, the motions for summary judgment are allowed as to the federal claims and the court
declines to exercise jurisdiction over the state law claims, which are remanded to Bladen County
Superior Court.
I. STATEMENT OF THE CASE
Cybernet, LLC (“Cybernet”) and Aladdin Real Estate, LLC (“Aladdin”) (collectively,
“Plaintiffs”) filed a verified complaint in the Superior Court of Bladen County against Jonathan
David, the District Attorney for the 13th Prosecutorial District of North Carolina (“David” or the
“District Attorney”), James McVicker, the Sheriff of Bladen County (“McVicker” or “Sheriff
McVicker”), and Travis Deaver (“Deaver”), a Deputy Sheriff of Bladen County, asserting claims
for conversion, declaratory judgment, takings under the United States and North Carolina
Constitutions, and deprivation of federal constitutional rights under 42 U.S.C. § 1983, all
stemming from the alleged destruction of Plaintiffs’ property during the execution of search
warrants by the Bladen County Sheriff’s Office (the “BCSO”). [DE-1-1]. Sheriff McVicker and
Deaver (collectively, the “Sheriff Defendants”) removed the action to this court [DE-1] and filed
an answer to the complaint [DE-5], and David filed a motion to dismiss [DE-12]. The parties
consented to the jurisdiction of a magistrate judge to conduct all proceedings in the case in
accordance with 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73. [DE-25 through -28].
The court allowed in part David’s motion to dismiss and dismissed Plaintiffs’ takings
claim under the United States Constitution and individual capacity takings claim under the North
Carolina Constitution but allowed to proceed Plaintiffs’ official capacity takings claim under the
North Carolina Constitution and individual capacity claims for conversion, declaratory judgment,
and violation of 42 U.S.C. § 1983. [DE-31]. David then filed a motion for summary judgment
[DE-32] and Plaintiffs filed a motion for entry of default against David [DE-42], both of which
were denied [DE-55].
The court entered a scheduling order providing for two phases of
discovery—Phase I focusing on Defendants’ liability and immunity defenses, and Phase II
focusing on all remaining issues should immunity not be case dispositive. [DE-58]. After the
completion of Phase I discovery, Defendants filed the instant motions seeking summary
judgment on all remaining claims.
2
II. STATEMENT OF FACTS
The undisputed facts, as well as the disputed facts viewed in the light most favorable to
Plaintiffs, are summarized as follows. Cybernet operated two stores, “Big Aladdin” and “Little
Aladdin” (collectively, the “stores”), that offered internet sweepstakes promotions to the public.
Compl. [DE-1-1] ¶¶ 9–11. The stores are located in in Dublin, Bladen County, North Carolina,
and are in separate buildings that are across the street from one another. Id. ¶¶ 9–10. Cybernet
leased the space for the stores from Aladdin, which owns the buildings. Id. ¶ 12. Jeffrey Smith
(“Smith”) owns Aladdin, Holly Smith (together with Jeffrey Smith, “the Smiths”) owns Cybernet,
and both have some role in operating the stores, with Holly Smith acting as an operations
manager and Jeffrey Smith maintaining the equipment and paying bills. Id. ¶¶ 12–14; Dep. of
Jeffrey Smith (“Smith Dep.”) [DE-94-2] at 32:16–33:13.
In the fall of 2014, James McVicker was running for sheriff of Bladen County and met
with Smith to discuss a potential campaign contribution. Dep. of James McVicker (“McVicker
Dep.”) [DE-94-4] at 30:25–31:15; Smith Dep. [DE-97-9] at 59:1–8, 90:8–20.
Smith gave
McVicker a campaign contribution that was later returned so that it could be resubmitted in
another manner not traceable to the Smiths. Smith Dep. [DE-97-9] at 90:21–93:17, 140:4–
142:14. Smith also explained to McVicker how the promotions at the stores worked and why he
believed they were legal, and Smith offered to allow McVicker to view the stores and to
demonstrate the promotions offered. McVicker Dep. [DE-97-8] at 38:9–41:17, Interrog. No. 14
& Answer [DE-97-26]. McVicker was ultimately elected sheriff and, after he took office, he
received complaints from some local residents about the stores. McVicker Dep. [DE-94-4] at
76:10–77:3.
3
The District Attorney for Bladen County also had concerns regarding the legality of the
sweepstakes promotions offered at the stores, and, in January 2013, he authored a memorandum
to law enforcement regarding the enactment of N.C. Gen. Stat. § 14-306.4, Electronic machines
and devices for sweepstakes prohibited, effective January 3, 2013.
[DE-95-15].
The
memorandum addressed the state of case law regarding the sweepstakes statute, the roles of the
various branches of government and law enforcement related to the statute, the duty of
prosecutors to advise law enforcement but to refrain from giving advisory opinions to gaming
establishments or their attorneys, potential remedies, and notice to video gaming businesses
regarding the new law. Id. The District Attorney’s Office subsequently prosecuted Smith in
2014, related to a sweepstakes promotion in Bladen County, resulting in a hung jury. 2d Decl. of
Jeffrey Smith (“2d Smith Decl.”) [DE-96-2] ¶ 13.
In March 2015, Sheriff McVicker and Captain Jeffery Tyler of the BCSO met with
members of the Cumberland County Sheriff’s Office (“CCSO”) and the Bladen County District
Attorney’s Office (the “District Attorney’s Office”), including David and Glenn Emery (an
Assistant District Attorney), regarding a potential investigation to determine whether the stores
were violating any gaming laws. June 10, 2015 Report of Jeffrey Tyler (“Tyler Report”) [DE-945]; Dep. of Jeffrey Tyler (“Tyler Dep.”) [DE-94-6] at 25:2–25. Sheriff McVicker appointed Tyler
to lead the investigation. McVicker Dep. [DE-94-4] at 73:20–75:12. Neither Sheriff McVicker,
nor anyone else involved in the investigation, including any member of the District Attorney’s
Office, informed Smith the stores were under investigation or ever took him up on his offer to
demonstrate how the promotions worked. Id. at 84:16–85:9; Tyler Dep. [DE-94-6] at 33:1–20.
Instead, Tyler utilized an undercover officer, David Borresen from the CCSO, to investigate
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because Borresen and the CCSO had specialized gambling training and experience with similar
investigations. Dep. of David Borresen (“Borresen Dep.”) [DE-94-7] at 20:17–23:18, 24:17–
25:4; Tyler Dep. [DE-94-6] at 23:25–24:16; McVicker Dep. [DE-94-4] at 75:17–76:9. Borresen
went to the stores in an undercover capacity on May 4 and 8, 2015 and played some of the games
offered. Borresen Reports [DE-94-8, -9]. At a May 18, 2015 meeting with members of the
BSCO, the CCSO, and Emery, it was decided that Borresen would visit the stores another time
before seeking search warrants [DE-97-15], and he did so on May 26, 2015 [DE-94-10].
After Borresen’s final undercover operation, Tyler decided to apply for search warrants
for both Big Aladdin and Little Aladdin. Tyler Dep. [DE-95-11] at 86:4–19. Tyler prepared
search warrant applications, incorporating some, but not all, of the information from Borresen’s
reports, and sought review of the applications from Borresen and Ronnie Mitchell, a Cumberland
County attorney who advised Sheriff McVicker, the BCSO, and the CCSO on legal matters. Id.
at 87:7–16; Tyler Dep. [DE-97-10] at 104:14–113:21. On May 28, 2015, a North Carolina
Superior Court judge issued search warrants for Big Aladdin and Little Aladdin, which
authorized the seizure of items including, but not limited to, gaming machines and other devices
as defined in N.C. Gen. Stat. § 14-306.1A, financial proceeds from the operations of illegal
gaming, related documents, photographs, videos, and electronic media, and other fruits or
instrumentalities of the crime. [DE-97-16, -18].
On the morning of May 29, 2015, the BCSO held an operational briefing prior to
executing the search warrants, at which Tyler distributed a memorandum containing, among
other things, a reminder to “*** Be professional, remember people are watching and cameras
will be everywhere. ***.” [DE-94-12]; Dep. of Morgan Johnson (“Johnson Dep.”) [DE-94-13]
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at 101:10–102:12, 114:23–115:5. Sheriff McVicker was present for a portion of the meeting,
reminded his deputies to be professional, McVicker Dep. [DE-94-4] at 111:14–113:6, but also
told them to “take every [f***ing] thing out,” Decl. of Randy Deaver (“Randy Deaver Decl.”)
[DE-98-2] ¶ 6.1 Subsequently, Tyler held a staging meeting near the stores, at which several
members of the BCSO, Emery, and Scott Pait (an investigator for the District Attorney’s Office)
were present, but Sheriff McVicker did not attend. McVicker Dep. [DE-94-4] at 117:18–118:1;
Dep. of Chad Britt (“Britt Dep.”) [DE-94-1] at 14:14–15:11; Dep. of Glenn Emery (“Emery
Dep.”) [DE-85-1] at 149:1–150:19. 2 The search warrants were then executed, with Tyler,
Morgan Johnson of the BCSO, Borresen, and Lieutenant Jenkins of the CCSO overseeing the
collection of evidence. Britt Dep. [DE-94-1] at 34: 1–10; Borresen Dep. [DE-94-7] at 155:12–25.
The stores were secured, security cameras were redirected upward and later seized, the scene was
1
Defendants contend Sheriff McVicker’s alleged statement to his deputies to “take every [f***ing] thing out” is
inadmissible double hearsay. Defs.’ Reply [DE-102] at 5 (citations omitted). Smith obtained Sheriff McVicker’s
alleged statement from Randy Deaver, who had worked for the Smiths at the stores and lived near Chad Britt, a
BCSO deputy involved in the search. Randy Deaver Decl. [DE-98-2] ¶¶ 3–4, 8. Randy Deaver’s declaration stated
that in the summer of 2017, he spoke with Britt, who began talking about the search at the stores and said Sheriff
McVicker directed the deputies present to “take every [f***ing] thing out” of the stores. Id. ¶ 6. Defendants argue
that Britt testified Sheriff McVicker never gave such direction and Britt did not attend the meeting where the
statement was allegedly made. Defs.’ Reply [DE-102] at 5. Plaintiffs argue that McVicker’s and Britt’s statements
are nonhearsay because they are admissions against a party opponent under Fed. R. Evid. 801(d)(2)(A), and the
statement from Britt to Randy Deaver is also admissible under Fed. R. Evid. 801(d)(2)(D) because Britt was an
employee of the Sheriff’s Office at all times relevant. Pls.’ Mem. [DE-97] at 9, n.3.
The court agrees with Plaintiffs that Sheriff McVicker’s statement to Britt is nonhearsay under Fed. R. Evid.
801(d)(2)(A), as a statement by a party opponent, and Britt’s statement to Randy Deaver is nonhearsay under Fed. R.
Evid. 801(d)(2)(D), because Britt was McVicker’s employee and the statement was on a matter within the scope of
their relationship. Therefore, the statements are not excluded pursuant to Fed. R. Evid. 805. See Yohay v. City of
Alexandria Emps. Credit Union, Inc., 827 F.2d 967, 970 (4th Cir. 1987) (finding “[t]he fact that Martin testified that
Hatton had told Martin what Filopovich had said provides no basis for exclusion” where the statements from Hatton
to Martin and from Filopovich to Hatton were not hearsay pursuant to Fed. R. Evid. 801(d)(2)(D)); Templeton v.
First Tenn. Bank, N.A., No. CIV. WDQ-09-3280, 2013 WL 3873180, at *4 n.23 (D. Md. July 24, 2013) (finding the
plaintiff’s hearsay within hearsay statement that “Reichhart had told O’Donnell-and O'Donnell told her” was not
excluded, pursuant to Rule 805, because each part of the statement fell under an exception to hearsay, specifically
Fed. R. Evid. 801(d)(2)(D)). It is immaterial for purposes of summary judgment that Defendants dispute Britt was
present at the meeting or that Sheriff McVicker made the statement, because at this stage “evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in [the non-movant’s] favor.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) (citation omitted).
2
The parties filed only excerpts rather than complete deposition transcripts in support of their briefing. Therefore,
the court references the complete transcripts filed elsewhere in the docket where necessary.
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cordoned off with crime scene tape, the customers were told to leave, and law enforcement
removed the items to be seized. Britt Dep. [DE-97-3] at 16:5–15, 28:1–29:10, 30:1–12, 20–
31:17; Smith Dep. [DE-97-9] at 16:7–18:8; Borresen Dep. [DE-94-7] at 162:3–25; Dep. of
Travis Deaver (“Deaver Dep.”) [DE-94-15] at 29:4–16. Neither of the Smiths was present during
the search. Smith Dep. [DE-97-9] at 148:5–8.
Sheriff McVicker was not present at the stores when the warrants were executed but later
drove a storage trailer to the stores, at the request of Tyler, because there was more equipment to
seize than originally anticipated. McVicker Dep. [DE-94-4] at 118:9–120:1; Tyler Dep. [DE-946] at 162:16–163:10. Scott Long, a contractor performing work for Smith in the space adjacent
to Little Aladdin at the time of the search, saw David with Sheriff McVicker walking across the
street to Little Aladdin while the two talked and looked at papers. Dep. of Scott Long (“Long
Dep.”) [DE-95-7] at 40:2–3, 42:19–43:18. Emery, Irene Riel (an Assistant District Attorney),
and Pait were present at various times during the search and spoke to BCSO members
conducting the search. Emery Dep. [DE-95-5] at 154:6–155:21; Dep. of Irene Riel (“Riel Dep.”)
[DE-95-9] at 55:6–56:14. Travis Deaver (a deputy sheriff with the BCSO) assisted with the
collection of evidence, but did not supervise or give orders. Deaver Dep. [DE-94-15] at 60:3–8.
Deaver, whose background includes electrical training and work as a volunteer fire fighter, was
directed to and did remove security cameras from the exterior and roof of Big Aladdin. Id. at
29:4–18, 57:23–25, 65:20–66:15. The rooftop cameras were mounted on two by fours, and
Deaver removed the cameras by pulling the two by fours from the roof. Id. at 60:9–18, 64:13–
65:5. Deaver also removed LED lighting from tracks attached to the roof, but the lighting was
not seized and was left on the ground. Id. at 36:24–39:2, 39:25–40:14. During the search,
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Johnson of the BCSO was attempting to remove a mounted television and stood on a table
causing the table to break. Johnson Dep. [DE-94-13] at 75:4–76:15. Additionally, two ATMs
and two safes containing cash were seized, and a locksmith opened them by drilling or picking
the locks. Pls.’ Disc. Resps. [DE-94-11] at 4 ¶¶ 15–17; Tyler Dep. [DE-94-6] at 211:6–214:9.
Among the other items seized were a neon “open” sign, remote controls for the HVAC units at
Little Aladdin, a wall clock, and two unopened boxes from an online store. Inventory of Items
Seized [DE-94-21]; Smith Dep. [DE-95-10] at 213:3–18, 218:2–22, 219:21–24, 227:22–11.
A helicopter owned by the BCSO took some aerial photographs and landed near the
stores during the search but left prior to the search’s conclusion. Britt Dep. [DE-94-1] at 44:5–24,
McVicker Dep. [DE-94-4] at 126:18–128:3, 129:18–25. David held a press conference later in
the day, praising the manner in which the raids were conducted and stating that “the last bet has
been placed and the game is over.” [DE-95-14] at 6 ¶ 6; 1st Decl. of Jeffery Smith (“Smith
Decl.”) [DE-47-2] ¶¶ 20–23. Sheriff McVicker did not believe a press conference was necessary
but attended at David’s request. McVicker Dep. [DE-94-4] at 146:10–147:3.
Smith arrived at the stores shortly after the search concluded and discovered the
following: 3500 feet of LED tract lighting had been removed from the roof line of Big Aladdin
and left behind the building; sections of LED track were pulled from the roof when the lighting
was removed; conduit was damaged from pulling on security camera wires, which later allowed
a water intrusion that damaged the ceiling above a bathroom; the pulling of wires also damaged
the power supply for the LED lights; the internal wiring was cut for magnetic locks on the front
door to Big Aladdin; stucco and conduit were damaged from the removal of security cameras; a
mural was torn from the window of Big Aladdin and left in a trash dumpster; computer wiring in
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both stores was cut; a coaxial cable to a television and a water hose to an ice machine in Big
Aladdin were cut; and a wooden table in Little Aladdin was broken. 2nd Smith Decl. [DE-96-2]
¶¶ 5–12. On the Monday following the search, Smith reported a fire at Big Aladdin. Smith Dep.
[DE-97-9] at 169:4–171:14.
When the fire marshal arrived, there was no active fire or
smoldering, and he observed “little damage . . . and very little soot on the ceiling in the store.”
Aff. of Kenneth Clark (“Clark Aff.”) [DE-94-18] ¶¶ 3–6. The fire marshal was unable to
determine the cause of the fire. Id. ¶ 7.
The Smiths were ultimately arrested and charged with 20 counts related to the operations
at Big Aladdin and Little Aladdin, and Riel sought high bond amounts from the magistrate. Decl.
of Sonya Silvas (“Silvas Decl.”) [DE-96-3]; Decl. of Alan Maynard (“Maynard Decl.”) [DE-96-4]
¶¶ 3–8. In August 2016, during the jury selection phase of a criminal trial unrelated to the events
at issue in this case, David pointed out to prospective jurors that Smith was in the gallery, asked
them if they knew him or had visited his businesses in Dublin, and stated that video sweepstakes
businesses are illegal. Maynard Decl. [DE-96-4] ¶¶ 12–13.
III. LEGAL STANDARD
Summary judgment is appropriate where “the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a). The party seeking summary judgment bears the initial burden of demonstrating the
absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
Once the movant has met its burden, the nonmoving party then must affirmatively demonstrate,
with specific evidence, that there exists a genuine issue of material fact requiring trial.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586–87 (1986). Only disputes
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between the parties over facts that might affect the outcome of the case properly preclude the
entry of summary judgment. Anderson, 477 U.S. at 247–48.
“[A]t the summary judgment stage the [court’s] function is not [itself] to weigh the
evidence and determine the truth of the matter but to determine whether there is a genuine issue
for trial.” Id. at 249. In determining whether there is a genuine issue for trial, “evidence of the
non-movant is to be believed, and all justifiable inferences are to be drawn in [the non-movant’s]
favor.” Id. at 255 (citation omitted); see also United States v. Diebold, Inc., 369 U.S. 654, 655
(1962) (“On summary judgment the inferences to be drawn from the underlying facts contained
in [affidavits, attached exhibits, and depositions] must be viewed in the light most favorable to
the party opposing the motion.”). “In qualified immunity cases, this usually means adopting . . .
the plaintiff's version of the facts.” Scott v. Harris, 550 U.S. 372, 378 (2007). Nevertheless,
“permissible inferences must still be within the range of reasonable probability, . . . and it is the
duty of the court to withdraw the case from the jury when the necessary inference is so tenuous
that it rests merely upon speculation and conjecture.” Lovelace v. Sherwin-Williams Co., 681
F.2d 230, 241 (4th Cir. 1982) (quotations omitted). Thus, judgment as a matter of law is
warranted where “a reasonable jury could reach only one conclusion based on the evidence,” or
when “the verdict in favor of the non-moving party would necessarily be based on speculation
and conjecture.” Myrick v. Prime Ins. Syndicate, Inc., 395 F.3d 485, 489 (4th Cir. 2005). By
contrast, when “the evidence as a whole is susceptible of more than one reasonable inference, a
jury issue is created” and summary judgment should be denied. Id. at 489–90.
IV. DISCUSSION
David contends there is no genuine issue of material fact and he is entitled to judgment as
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a matter of law because Plaintiffs (1) have produced no evidence that he was involved in the
drafting, review, or execution of the search warrants at issue in this case, or that he was directly
or indirectly involved in the destruction of Plaintiffs’ property; and (2) have not alleged action
pursuant to a policy or custom. Def.’s Mem. [DE-88] at 8–21. In support of the motion, David
filed a brief [DE-88], statement of material facts [DE-89], and appendix [DE-90] with 18
exhibits, which include, among other things, affidavits from David [DE-90-13], Sheriff
McVicker [DE-90-14], Major Larry Guyton [DE-90-15], Captain Jeff Bridgers [DE-90-16],
Captain Jeff Tyler [DE-90-17], and Lieutenant Morgan Johnson [DE-90-18].
Plaintiffs oppose David’s motion, asserting that material facts are in dispute regarding his
involvement in the search at issue and there is sufficient direct and circumstantial evidence from
which a jury could find that David instigated, directed, or supervised the search and the
destruction of Plaintiffs’ property. Pls.’ Mem. [DE-95] at 11–25. In support of their position,
Plaintiffs filed a memorandum in opposition [DE-95] with 17 exhibits, which include, among
other things, deposition excerpts from Smith [DE-95-10], Scott Long [DE-95-7], Emery [DE-955], Riel [DE-95-9], and several members of the BCSO [DE-95-3, -95-4, -95-6, -95-8, -95-11],
response to movant’s statement of material facts [DE-96], and appendix [DE-96-1] with
declarations from Smith [DE-96-2], Sonya Silvas [DE-96-3], and Alan Maynard [DE-96-4].
Sheriff McVicker and Deaver contend there is no genuine issue of material fact and they
are entitled to judgment as a matter of law because (1) they did not violate Plaintiffs’
constitutional rights and are entitled to qualified immunity; (2) Plaintiffs cannot show an
unconstitutional policy, practice, or custom of the Bladen County Sheriff’s Office, or a failure to
train; (3) Plaintiffs’ property was lawfully seized pursuant to a search warrant and has not been
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converted to the Sheriff Defendants’ use; (4) Plaintiffs are not entitled to declaratory judgment
because their underlying claim of a constitutional violation fails; (5) there can be no cognizable
Fifth Amendment takings claim because Plaintiffs’ property was seized pursuant to a lawful
search warrant and Plaintiffs failed to allege that no adequate state remedy exists; (6) they are
entitled to public officer’s immunity in their individual capacities from Plaintiffs’ state commonlaw claims because there is no evidence that they were malicious or corrupt; and (7) they are
entitled to governmental immunity in their official capacities from Plaintiffs’ state common-law
claims because the Bladen County insurance policy in effect for the Sheriff at the time of the
events alleged preserves this immunity. Defs.’ Mem. [DE-92] at 9–29. In support of the motion,
the Sheriff Defendants filed a memorandum [DE-92], statement of material facts [DE-93], and
appendix [DE-94] with 22 exhibits, which include, among other things, deposition excerpts from
Sheriff McVicker [DE-94-4] and several members of the BCSO [DE-94-1, -94-6, -94-13, -94-15],
and investigative reports from Tyler [DE-94-5] and Borresen [DE-94-8, -94-9, -94-10].
Plaintiffs oppose the Sheriff Defendants’ motion, asserting that material facts are in
dispute and summary judgment is not appropriate on the remaining claims with the exception of
the conversion claim against Sheriff McVicker in his official capacity. Pls.’ Mem. [DE-97] at
12–30. In support of their position, Plaintiffs filed a memorandum in opposition [DE-97] with
25 exhibits, which include, among other things, deposition excerpts from Smith [DE-97-9], Long
[DE-97-7], Emery [DE-97-5], Borresen [DE-97-2], Sheriff McVicker [DE-97-8], and several
members of the BCSO [DE-97-3, -97-4, -97-6, -95-10], response to movant’s statement of
material facts [DE-98], and appendix [DE-98-1] with a declaration by Randy Deaver [DE-98-2].
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A. Section 1983 Claims
Section 1983 imposes liability on anyone who, under the color of state law, deprives a
person “of any rights, privileges, or immunities secured by the Constitution and laws.” 42 U.S.C.
§ 1983. However, § 1983 is not a “source of substantive rights, but a method for vindicating
federal rights elsewhere conferred by those parts of the United States Constitution and federal
statutes that it describes.” Lambert v. Williams, 223 F.3d 257, 260 (4th Cir. 2000) (citations
omitted).
Thus, to state a claim under § 1983, a plaintiff must allege facts indicating a
deprivation of rights guaranteed by the Constitution and laws of the United States and that this
deprivation resulted from conduct committed by a person acting under color of state law. West v.
Atkins, 487 U.S. 42, 48 (1988) (citations omitted); Philips v. Pitt Cnty. Mem’l Hosp., 572 F.3d
176, 180 (4th Cir. 2009) (citations omitted).
“Generally, qualified immunity operates to protect law enforcement and other
government officials from civil damages liability for alleged constitutional violations stemming
from their discretionary functions.” Raub v. Campbell, 785 F.3d 876, 880–81 (4th Cir. 2015)
(citation omitted). “The protection extends to all but the plainly incompetent or those who
knowingly violate the law.” Id. at 881 (citation and internal quotation marks omitted). The
Fourth Circuit has “emphasized repeatedly, ‘[o]fficials are not liable for bad guesses in gray
areas; they are liable for transgressing bright lines.’” Id. (citations omitted). The qualified
immunity analysis considers “(1) whether the plaintiff has established the violation of a
constitutional right, and (2) whether that right was clearly established at the time of the alleged
violation.” Id. (citations omitted). However, the court need not address both inquiries and can
take them in “the order . . . that will best facilitate the fair and efficient disposition of each case.”
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Id. (citation omitted).
In United States v. Ramirez, the Supreme Court recognized that the use of excessive force
resulting in property damage, during an otherwise lawful search, may constitute a Constitutional
violation cognizable under § 1983.
523 U.S. 65, 71 (1998) (“Excessive or unnecessary
destruction of property in the course of a search may violate the Fourth Amendment . . . .”); see
Wood v. Se. Penn. Transp. Auth., No. CV 14-4183, 2016 WL 2619411, at *6 (E.D. Pa. May 6,
2016) (rejecting qualified immunity defense and denying summary judgment to defendants on
§ 1983 claim, where during a lawfully initiated automobile search the officers caused
unreasonable property damage); Koller v. Hilderbrand, 933 F. Supp. 2d 272, 278 (D. Conn. 2013)
(stating the standard of liability for a § 1983 claim under the Fourth Amendment for property
damage during a lawful search) (quoting Cody v. Mello, 59 F.3d 13, 16 (2d Cir. 1995)). However,
the “[d]estruction of property does not necessarily violate the Fourth Amendment; for instance,
‘officers executing search warrants on occasion must damage property in order to perform their
duty.’” Gary M. v. City of N. Charleston, No. 2:16-CV-01087-DCN, 2017 WL 4236542, at *4
(D.S.C. Sept. 25, 2017) (quoting Dalia v. United States, 441 U.S. 238, 258 (1979)). “The
touchstone . . . is reasonableness; destruction of property that is not reasonably necessary to
effectively execute a search warrant may violate the Fourth Amendment.” Id. (quoting Tarpley v.
Greene, 684 F.2d 1, 9 (D.C. Cir. 1982)). “Importantly, a ‘plaintiff has no cause of action under
§ 1983 for the alleged negligent conduct of defendants which could have resulted in the
destruction or deprivation of his personal property.’” Id. (quoting Ferrell v. Lewis, No. 5:12-CT3220-F, 2013 WL 12114471, at *2 (E.D.N.C. Apr. 9, 2013)).
14
1. District Attorney David
David presented the following evidence in support of his entitlement to qualified
immunity. No one involved with the investigation or search testified that David had any role in
instigating, directing, or supervising the search or the destruction of Plaintiffs’ property. David
claimed he was not present at and did not participate in, personally observe, or direct the
execution of the search warrants. Aff. of Jonathan David (“David Aff.”) [DE-90-13] ¶ 5. Sheriff
McVicker, as well as four members of his office who were present at and participated in the
search, all stated they did not see David at the stores and he had no role in directing the execution
of the search warrants. Aff. of James McVicker (“McVicker Aff.”) [DE-90-14] ¶¶ 2–3; Aff. of
Larry Guyton (“Guyton Aff.”) [DE-90-15] ¶ 2; Aff. of Jeff Bridgers (“Bridgers Aff.”) [DE-90-16]
¶ 2; Aff. of Jeff Tyler (“Tyler Aff.”) [DE-90-17] ¶ 2; Aff. of Morgan Johnson (“Johnson Aff.”)
[DE-90-18] ¶ 2. Other members of the BCSO search team testified they did not recall seeing
David at the stores on the day of the search. Dep. of Chad Britt (“Britt Dep.”) [DE-90-6] at
42:2–3; Deaver Dep. [DE-90-8] at 22:23–23:1. Riel and Emery also testified they did not see
David at the stores during the search. Riel Dep. [DE-90-11] at 57:13–16; Dep. of Glenn Emery
(“Emery Dep.”) [DE-90-12] at 288:8–289:4.
Sheriff McVicker stated the investigation of the stores and execution of the search
warrants were carried out and supervised by the BCSO, with assistance from the CCSO; he
sought and received legal counsel regarding the investigation from Ronnie Mitchell; and Tyler
was in charge of the investigation. McVicker Aff. [DE-90-14] ¶ 3; McVicker Dep. [DE-94-4] at
73:20–76:14, 100:18–111:11. Tyler testified he drafted the search warrant applications with no
input from David or anyone else in the District Attorney’s Office. Tyler Dep. [DE-95-11] at
15
86:4–87:20. Borresen, the CCSO officer who conducted the undercover visits to the stores,
testified he did not meet David until after the search, sometime in 2016, and Ronnie Mitchell was
the only person from whom he would seek legal advice. Borresen Dep. [DE-88-11] at 32:3–12,
37:1–16. Emery and Riel did not assist in the investigation or the application for and execution
of the search warrants, although Emery may have had some advisory role with reference to
which statutes to investigate, and the two were present as observers at certain pre-search
meetings and for a period of time during the search. Emery Dep. [DE-85-1] at 116:10–24,
146:1–17, 154:6–155:21, 164:2–6, 179:8–20, 192:2–7, 193:3–7; Riel Dep. [DE-85-2] at 31:12–
32:7, 33:1–34:12, 39:1–9, 43:23–44:3, 44:13–20, 46:24–48:14, 55:6–56:14.
In attempting to demonstrate a material question of fact to preclude summary judgment,
Plaintiffs suggest David and his office played a “central role” in the investigation, search, and
later events. Pls.’ Mem. [DE-95] at 5. Plaintiffs’ overarching theory is that David and members
of his office conspired with Sheriff McVicker, involving several members of the BCSO and
CCSO, to destroy Plaintiffs’ property in retribution for the prior failed prosecution. Id. at 12.
However, the evidence Plaintiffs present, summarized below and taken in the light most
favorable to them, fails to bear this out, as their theory is based on speculation and unreasonable
inferences that are insufficient to preclude summary judgment.
David believed all sweepstakes promotions were illegal, he authored a memorandum to
law enforcement espousing this position, and his office undertook a well-publicized, but
ultimately failed, prosecution of Smith for operating an electronic sweepstakes business. [DE95-15]; 2d Smith Decl. [DE-96-2] ¶ 13. Thereafter, Cybernet began doing business in Bladen
County. [DE-95-16]. David asked the Sheriff at that time, Prentis Benston, to investigate, and
16
David made a statement to the media that Smith faced criminal exposure if he was operating the
stores in Bladen County as he had previously done in Columbus County. Id. After Sheriff
McVicker took office, David and Emery were present at a meeting with members of the BCSO
and CCSO to discuss investigating the stores. [DE-95-7]; Emery Dep. [DE-95-5] at 127:20–
128:17. Emery was also present at another meeting just before Tyler applied for the search
warrants. Emery Dep. [DE-95-5] at 130:4–133:22. Scott Long, a contractor performing work
for Smith in the space adjacent to Little Aladdin during the search, saw David walk across the
street with Sheriff McVicker to Little Aladdin while the two talked and looked at papers. Dep. of
Scott Long (“Long Dep.”) [DE-95-7] at 40:2–3, 42:19–43:18. Emery, Riel, and Pait were also
present at the stores for a period of time during the search and spoke to members of the BCSO.
Emery Dep. [DE-95-5] at 154:6–155:21; Riel Dep. [DE-95-9] at 55:6–56:14. Riel, although an
experienced prosecutor, had never been on-site during a search before, and certain BCSO
members stated it was unusual for so many people from the District Attorney’s Office to be at a
search when it was not a high-profile case like a murder. Riel Dep. [85-2] at 62:13–63:12;
Johnson Dep. [DE-90-5] at 83:15–84:7; Tyler Dep. [95-11] at 155:18–157:18. As the search was
concluding, David held a press conference, praising the manner in which the search was
conducted and stating “the last bet has been placed and the game is over.” [DE-95-14] at 6 ¶ 6;
Smith Decl. [DE-47-2] ¶¶ 20–23. Sheriff McVicker did not believe the press conference was
necessary but was present at David’s request. McVicker Dep. [DE-94-4] at 146:10–147:3.
After the Smiths were arrested, Riel asked the magistrate to set unreasonably high bonds
for the Smiths but not for the other store employees. Decl. of Sonya Silvas (“Silvas Decl.”) [DE96-3]; Decl. of Alan Maynard (“Maynard Decl.”) [DE-96-4] ¶¶ 3–7. Emery was aggressive in
17
bringing 20 charges against the Smiths before examining the evidence collected during the
search, and the Smiths sought to dismiss the charges on the grounds of prosecutorial
vindictiveness. Maynard Decl. [DE-96-4] ¶¶ 3–4, 8–10. More than a year after the search,
during the jury selection phase of a criminal trial unrelated to the events at issue in this case,
David pointed out to prospective jurors that Smith was in the gallery, asked them if they knew
Smith or had visited his businesses in Dublin, and stated that video sweepstakes businesses are
illegal. Id. ¶¶ 12–13.
Plaintiffs argue David had motive and opportunity to engage in the conduct alleged.
They point to circumstantial evidence, such as the “seize and freeze” of the stores and Borresen’s
redirection of the cameras and his donning of a balaclava, as evidence of opportunity for
wrongdoing. Pls.’ Mem. [DE-95] at 12–13. Assuming that securing a scene during a search,
Britt Dep. [DE-97-3] at 28:5–23, and an undercover officer attempting to protect his identity,
Borresen Dep. [DE-103-6] at 151:1–153:14, are a prelude to nefarious conduct, there is nothing
directly or indirectly linking David or anyone in his office to these acts carried out by members
of the BCSO and CCSO.
The suggestion that David was motivated to destroy Smith’s
businesses because David was embarrassed by the failed prosecution of Smith, Pl.’s Mem. [DE95] at 13–14, is speculative. Plaintiffs’ evidence may demonstrate that David was a zealous
prosecutor, unbending in his belief that electronic sweepstakes violate North Carolina law, and
wanted Smith’s businesses shut down. Drawing the inference from this evidence, however, that
David played a role in damaging Plaintiffs’ property is unreasonable. See Petersen v. Midgett,
140 F. Supp. 3d 490, 507 (E.D.N.C. 2015) (“‘[I]t is the duty of the court to withdraw the case
from the jury when the necessary inference is so tenuous that it rests merely upon speculation
18
and conjecture’ in order to prevent the jury’s ‘impermissible but understandable resort to such
factors as sympathy and the like’ to draw inferences where sufficient evidentiary support is
absent.”) (quoting Lovelace v. Sherwin-Williams Co., 681 F.2d 230, 241 (4th Cir. 1982)).
Plaintiffs also claim that David was directly involved in the investigation based on
evidence that he asked the former sheriff to investigate the stores, attended a meeting to discuss
an investigation of Plaintiffs’ businesses by Sheriff McVicker’s office, and remained engaged
throughout the investigation. Pls.’ Mem. [DE-95] at 14–15. Evidence of minimal involvement,
however, does not support the inference that David, or members of his office, directed or were in
any way involved in the destruction of Plaintiffs’ property. Sheriff McVicker testified that
Emery was likely at the meetings because “he’s with the District Attorney’s Office” and “would
be the one prosecuting if we made any charges[.]” McVicker Dep. [DE-94-4] at 94:8–12.
McVicker also testified that it is routine for the District Attorney’s Office to have some
communication with detectives about the cases they will be prosecuting. Id. at 94:13–95:14.
The evidence shows that David and his office stayed apprised of the BCSO’s investigation, but
there is no evidence that David or anyone from his office played a substantial role. Thus, the
inference Plaintiffs ask the court to draw is unsupported and too speculative to create a genuine
issue of material fact. See Hicks v. Cassilly, 153 F.3d 720, 1998 WL 433299, at *4 (4th Cir. July
27, 1998) (Table) (reversing denial of qualified immunity where the plaintiff’s evidence was “too
remote and too tenuous to create a genuine issue of material fact.”) (quoting Ennis v. Nat’l Assoc.
of Bus. and Educ. Radio, Inc., 53 F.3d 55, 62 (4th Cir. 1995)).
Plaintiffs infer that David and his office oversaw the search based on evidence that David,
Emery, Riel, and Pait were present for some period of time during the search and spoke to
19
members of the BCSO and CCSO. Pls.’ Mem. [DE-95] at 15–16. However, when this evidence
is viewed in context of the full testimony given, it is insufficient to support the inference that
David or his staff oversaw the search. Plaintiffs cite the testimony of Emery, Riel, and Long in
support of their contention that they interacted and spoke with sheriff’s deputies during the
search. Emery’s testimony on this issue was as follows:
Q. So what role did you play in the raid itself?
A. Observer.
Q. Did you speak to anybody during the raid?
A. I’m sure I spoke to a lot of people. Hi, how are you. I believe Chad[] Britt was
-- is it Chad[]? Deputy Britt, a big guy. I think it’s Chad[]. I think he was keeping
the log, the crime scene log, if I’m not mistaken. So I’m sure I said hi to him. [] I
probably said hello to everybody who was in there. I probably knew everybody in
there or most everybody in the building.
Q. Okay. Did you speak to them about anything of substance?
A. No.
Q. Did you speak to anybody there about anything having to do with the raid itself?
A. No.
Q. Were you consulted in any way on the conduct of the raid?
A. You mean the conduct of the officers while they’re -- like inside the area you
mean?
Q. (Nods head.)
A. You don’t mean the actual --what do you mean by that?
Q. On the day of the raid while you were at the raid, did anybody come up to you
and ask your opinion about anything?
A. I don’t recall that happening.
Q. Were you asked to consult with them in the process of the raid I guess is what
I’m saying?
A. No, I would have if they had, but I don’t recall it.
Q. Okay.
A. If they would have asked me advice, I would have given it, but I don’t recall
being asked any advice.
Q. All right.
A. I recall walking around the first store, the big store and then leaving, walking
across the street and walking around the smaller store.
Emery Dep. [DE-95-5] at 154:6–155:21. Similarly, Riel testified that she “briefly talked with
some law enforcement officers that were in there,” but did not remember who they were, and
20
recalled that she “walked in one door, and . . . walked out another door” and the stores were
already empty. Riel Dep. [DE-95-9] at 55:6–56:14. Finally, Scott saw David walking across the
street to Little Aladdin while talking to Sheriff McVicker about some papers. Long Dep. [DE95-7] at 42:19–43:18. The only reasonable inference from this evidence is that David and the
members of his office were present as observers and did not oversee or provide direction to those
effectuating the search. See Griffin v. Hartford Life & Accident Ins. Co., No. 17-1251, 2018 WL
3624872, at *9 (4th Cir. July 31, 2018) (finding “a few statements plucked from [defendant’s]
records [], when given their appropriate context, do not support any reasonable inference of bias
or self-interest.”).
Plaintiffs additionally argue that the damage done occurred in plain sight and members of
the District Attorney’s Office did nothing to stop it. Pls.’ Mem. [DE-95] at 16. However, the
evidence presented indicates that these individuals were not present when the search warrants
were first executed and David was seen only briefly, Long Dep. [DE-95-7] at 42:19–43:18; the
stores were mostly empty by the time Riel arrived, and she did not see any destructive behavior
occurring, Riel Dep. [DE-95-9] at 55:15–56:11, 62:2–6; and Emery observed documents being
collected, photographs being taken, and electrical equipment being seized, but he did not see
anyone cutting cables, removing LED lights, drilling open a safe, opening an ATM, or being on
the roof, and he would have reported improper behavior, Emery Dep. [DE-85-1] at 177:4–178:20,
218:1–14, id. [DE-88-13] at 289:5–15. In sum, the evidence that David and others from his
office were present at the stores and spoke to members of law enforcement during the search is
insufficient to create an inference that they were involved in or witnessed any wrongdoing.
Finally, Plaintiffs repeatedly contend they were denied discovery that prevented them
21
from obtaining additional evidence to support their claims and “vehemently disagree with the
Court’s ruling and may be compelled to address it on appeal.” Pls.’ Mem. [DE-95] at 14 n.6, 15
n.7, 16 n.8, 19. During the discovery period, Plaintiffs sought to reopen the depositions of
Emery and Riel because they refused to answer certain questions and asserted a variety of
privileges Plaintiffs believed were improper. [DE-74]. The court denied Plaintiffs’ motion,
concluding that Emery and Riel, non-parties to this action, testified extensively regarding their
knowledge of, and the extent of any involvement in, the execution of the search warrants at issue
in this case, the BCSO’s investigation, the preparation of the search warrants, the press
conference, the Smiths’ criminal cases, and the bond issue. [DE-86]. The court, citing Rule
26(b)(2)(C)(i) and (iii), found the questions deponents refused to answer—on issues such as the
legality of sweepstakes games, the legality of the search warrants, prosecutorial decisions related
to Smith’s criminal case, and the inner workings of the District Attorney’s Office—to be either
not relevant to the claims and defenses at issue in this case, not proportional to the needs of the
case, or sufficiently addressed in response to other questions and, thus, cumulative or duplicative.
Id. at 15. The court has no cause to reconsider its ruling, and Plaintiffs are afforded a right of
appellate review under 28 U.S.C. § 636(c)(3). 3
In sum, Plaintiffs’ evidence fails to demonstrate a genuine issue that David, or any
member of the District Attorney’s Office, violated Plaintiffs’ constitutional rights by instigating,
directing, or supervising the search and the destruction of Plaintiffs’ property. At most, one
could reasonably conclude that David believed the internet sweepstakes offered at the stores
3
Plaintiffs also make the bald assertion that “[i]t is hard to imagine that such a ruling would have been issued had
the Defendants been anything other than the Sheriff and District Attorney.” Pls.’ Mem. [DE-95] at 19. While
disagreeing with a ruling and taking an appeal are commonplace in litigation, questioning the court’s integrity is not,
and counsel is cautioned against making such unsupported remarks. See N.C. Rev. R. Prof’l Conduct 0.1[5] (“A
lawyer should demonstrate respect for the legal system and for those who serve it[.]”).
22
were illegal, wanted the sheriff to investigate, stayed apprised of the investigation, was present
during a portion of the search, and prosecuted Smith for conduct he believed was illegal. No
reasonable jury could conclude, based on the evidence taken in the light most favorable to
Plaintiffs, that David or his staff had any part in violating Plaintiffs’ constitutional rights by
causing the destruction of their property. Accordingly, David is entitled to qualified immunity,
and his motion for summary judgment on the § 1983 claim is allowed.
2. Sheriff McVicker
i.
Individual Capacity Claim
Sheriff McVicker presented the following evidence in support of his entitlement to
qualified immunity. McVicker met with Smith during the campaign for sheriff, but did not cash
a campaign check from Smith or his wife. McVicker Dep. [DE-94-4] at 30:25–31:15, 44:5–
45:25.
After Sheriff McVicker took office, he received complaints about the stores and
subsequently initiated an investigation to determine if illegal gambling was taking place. Id. at
76:10–77:3; Tyler Report [DE-94-5].
investigation.
Sheriff McVicker tasked Tyler with leading the
McVicker Dep. [DE-94-4] at 73:20–75:12.
After conducting an undercover
investigation, Tyler decided to obtain search warrants, and Sheriff McVicker had no role in
preparing the search warrant applications. Tyler Dep. [DE-95-11] at 86:4–19; McVicker Dep.
[DE-94-4] at 96:15–18. Sheriff McVicker attended a pre-search briefing and reminded his
deputies to act professionally during the search, but was not present at the subsequent staging
meeting. McVicker Dep. [DE-94-4] at 111:14–113:21, 117:18–118:1. No instructions were
given to destroy property or to create a public spectacle. Johnson Dep. [DE-94-13] at 103:8–23;
Borresen Dep.[DE-94-7] at 199:24–200:7; Britt Dep. [DE-94-1] at 38:13–39:7.
23
Sheriff
McVicker was not present when the warrants were first executed but later drove a storage trailer
to the stores at the request of Tyler because there was more equipment to seize than originally
anticipated. McVicker Dep. [DE-94-4] at 118:9–120:1; Tyler Dep. [DE-94-6] at 162:16–163:10.
Sheriff McVicker did not personally oversee the execution of the search warrants, Britt Dep.
[DE-94-1] at 34:1–6; Johnson Dep. [DE-94-13] at 80:25–81:8; Deaver Dep. [DE-94-15] at
27:5–10, Borresen Dep. [DE-94-7] at 199:14–20, and shortly after dropping off the storage
trailer he left to eat lunch at a restaurant next door and did not return to the stores, Tyler Dep.
[DE-94-6] at 163:21–164:8. Sheriff McVicker attended a press conference later in the day at
David’s request, although McVicker believed that the press conference was unnecessary.
McVicker Dep. [DE-94-4] at 146:10–147:3.
Plaintiffs presented the following evidence that conflicts with Sheriff McVicker’s version
of events. McVicker’s campaign informed Smith that then Sheriff Benston was planning to raid
Plaintiffs’ businesses in Dublin, and during a subsequent meeting between Smith and McVicker,
Smith was told his businesses would not be a priority for McVicker and that he would not raid
his businesses without warning. Smith Dep. [DE-97-9] at 65:2–72:21, 108:12–21. Smith gave
McVicker a campaign contribution that was later returned so that it could be resubmitted in
another manner not traceable to the Smiths. Id. at 90:21–93:17, 140:4–142:14. After McVicker
was elected sheriff, he assigned Tyler to investigate the stores. McVicker Dep. [DE-97-8] at
73:20–75:12. At the pre-search meeting, Sheriff McVicker directed is deputies to “take every
[f***ing] thing out,” Randy Deaver Decl. [DE-98-2] ¶ 6, when conducting the search of the
stores. Sheriff McVicker was present during the search and spoke to members of the BCSO and
the District Attorney’s Office, and Britt indicated he had never before seen an elected sheriff
24
present when a search warrant was executed. Britt Dep. [DE-97-3] at 47:15–48:2. Substantial
damage was done to Plaintiffs’ property: 3500 feet of LED lighting was removed from the roof
line of Big Aladdin and left behind the building; sections of LED track were pulled from the roof
when the lighting was removed; conduit was damaged from pulling on security camera wires that
later resulted in a water intrusion damaging the ceiling above a bathroom; the power supply was
damaged for the LED lights; the internal wiring was cut for magnetic locks on the front door to
Big Aladdin; stucco and conduit were damaged from the removal of security cameras; a mural
was torn from the window of Big Aladdin and left in a trash dumpster; computer wiring in both
stores was cut; a coaxial cable to a television and a water hose to an ice machine in Big Aladdin
were cut; and a wooden table in Little Aladdin was broken. 2nd Smith Decl. [DE-96-2] ¶¶ 5–12.
During the search, Sheriff McVicker directed the BCSO’s helicopter to land near the search site
to make a public spectacle. McVicker Dep. [DE-97-8] at 127:2–128:3. Later, Sheriff McVicker
sent a notice advising the Smiths that their concealed weapons permits were subject to revocation.
Answer [DE-5] ¶ 122.
The Sheriff Defendants contend that Sheriff McVicker cannot be personally liable for the
alleged property destruction and is entitled to qualified immunity because he did not remove or
destroy any property during the search. Defs.’ Mem. [DE-92] at 11. Plaintiffs respond that the
BCSO excluded potential witnesses from observing the search by securing the scene with crime
scene tape, removing employees, preventing members of the public from entering the area, and
redirecting and disabling security cameras, and, therefore, it is appropriate to rely on
circumstantial evidence that Sheriff McVicker personally participated in damaging Plaintiffs’
property. Pls.’ Mem. [DE-97] at 14–16. The evidence, taken in the light most favorable to
25
Plaintiffs, does not support the inference that Sheriff McVicker was personally involved in
damaging Plaintiffs’ property. At most, one could reasonably conclude that McVicker initiated
an investigation, put Tyler in charge, stayed apprised of its progress, told his deputies at a presearch meeting to seize everything, came on the scene sometime after the search warrants were
executed for the purpose of delivering a storage trailer at the request of Tyler, and left shortly
thereafter. Judge Wilkinson’s observation in Evans v. Chalmers is instructive:
[T]he plaintiffs’ allegations here could be “consistent with” a scenario in which
the supervisory officials somehow participated in their subordinates’ allegedly
unconstitutional conduct. But the “obvious alternative explanation[]” for the
supervisors’ conduct in assigning the case to certain investigators and attending
meetings where the case was discussed is that they wanted to facilitate the
investigation, stay abreast of recent developments, and bring the case to closure
on a reasonable timeline. That, after all, is their job.
703 F.3d 636, 662 (4th Cir. 2012) (Wilkinson, J., concurring) (internal citations omitted) (citing
Ashcroft v. Iqbal, 556 U.S. 662, 678, 682 (2009)). Here, it is simply not reasonable to infer from
the evidence that Sheriff McVicker personally participated in the destruction of Plaintiffs’
property.
Plaintiffs’ claim of direct evidence demonstrating Sheriff McVicker “supervised and
directed the raids and the destruction of Plaintiffs’ property” is unsupported. Pls.’ Mem. [DE-97]
at 16. No one involved in the search indicated that Sheriff McVicker was in charge at the scene.
Morgan Johnson’s deposition testimony is typical of others as to McVicker’s lack of any
substantive role in the search:
Q.
A.
Q.
A.
Q.
A.
Did you talk to Sheriff McVicker while you were there?
I sure might have spoken to him, but I had my own duties to attend.
Did he give you any instructions while you while you were there?
No.
What do you recall that he was doing while he was there?
Being the sheriff.
26
Q.
A.
Was there any specific activities that he was engaged in that you recall?
No.
Johnson Dep. [DE-94-13] at 80:21–81:8. Chad Britt identified Tyler and Johnson as being in
charge of the search operation, Britt Dep. [DE-94-1] at 34: 1–10, and David Borresen indicated
he and Lieutenant Jenkins were providing direction as to what to seize, Borresen Dep. [DE-94-7]
at 155:12–25. For purposes of § 1983, Sheriff McVicker cannot be held personally responsible
simply because as “sheriff” he indirectly oversees all activities in his office. See Iqbal, 556 U.S.
at 676 (“Because vicarious liability is inapplicable to . . . § 1983 suits, a plaintiff must plead that
each Government-official defendant, through the official’s own individual actions, has violated
the Constitution.”); Koller, 933 F. Supp. 2d at 280 (“It is well established that the personal
involvement of a defendant-police officer is an essential prerequisite to money damages under 42
U.S.C. § 1983.”).
Plaintiffs also assert Sheriff McVicker’s direct involvement can be inferred from his
motive and opportunity:
McVicker’s motives for promising Mr. Smith that raids would not be conducted
without warning, and then turning around to plot raids against Mr. Smith and the
Plaintiffs are not entirely clear, but can be inferred from the circumstances[.]
Having accepted large sums of money and other assistance from Mr. Smith for his
campaign, which he either did not properly report, or at least handled in a very
questionable manner, McVicker then was confronted by David who insisted that
strong action be taken against Mr. Smith and the Plaintiffs. Had McVicker
resisted David’s pressure, David no doubt would have looked into the matter and
discovered that McVicker had financed his campaign through Mr. and Mrs. Smith.
Putting aside whether this would have led to a criminal investigation of McVicker
himself, it at least would have been very embarrassing to McVicker, whose
political position is not overly secure given the narrow margin by which he won
the election. Therefore, it is reasonable to infer that McVicker chose what he
thought was the lesser of two evils, threw in his lot with David, and decided to
launch a raid upon the Plaintiffs, in spite of the assurances he had given Mr. Smith.
Pls.’ Additional Mat. Facts in Dispute [DE-98] at 14 ¶ 6. This inference is pure conjecture, too
27
speculative to reach the jury, Petersen, 140 F. Supp. 3d at 507, and insufficient to establish the
requisite causation on the part of Sheriff McVicker, see Kane v. Lewis, 604 F. App’x 229, 234
(4th Cir. Mar. 13, 2015) (“A plaintiff asserting a constitutional tort under § 1983 must [] satisfy
the familiar element of proximate causation,” and “[s]ection 1983 tort defendants are certainly
‘responsible for the natural consequences of [their] actions.”) (citations omitted). Furthermore,
the case of Rodriguez v. Geradot, No. 1:12-CV-151-PPS, 2014 WL 1794560 (N.D. Ind. May 5,
2014), cited by Plaintiffs for the proposition that “a reasonable juror could find that [a] law
enforcement officer personally damaged the interior of a vehicle during a search even though
plaintiffs did not witness the officer damaging the vehicle,” is inapposite because defendant
Geradot was the only officer who entered the vehicle during the relevant time. Pls.’ Mem. [DE97] at 17; Rodriguez, 2014 WL 1794560, at *3. Here, there were several law enforcement
officers assisting in the search, making this case more akin to the Seventh Circuit’s decision in
Molina ex rel. Molina v. Cooper, 325 F.3d 963 (7th Cir. 2003), discussed in Rodriguez, in which
the court upheld the grant of summary judgment to the defendant “because the plaintiffs had no
evidence that the defendant, out of the seventeen police officers on the scene, was the one officer
who actually searched the truck.” Rodriguez, 2014 WL 1794560, at *4.
Plaintiffs also suggest that res ipsa loquitur “seems appropriate” at this juncture, because
Smith inspected the stores minutes after the search concluded and “was able to conclude that all
the damage was caused by the Defendants, and nobody else.” Pls.’ Mem. [DE-97] at 16 n.7.
“The doctrine of res ipsa loquitur applies when ‘(1) direct proof of the cause of an injury is not
available, (2) the instrumentality involved in the accident [was] under the defendant’s control,
and (3) the injury is of a type that does not ordinarily occur in the absence of some negligent act
28
or omission.’” Robinson v. Duke Univ. Health Sys., Inc., 229 N.C. App. 215, 224, 747 S.E.2d
321, 329 (2013) (citation omitted). Plaintiffs cite no case law applying the doctrine of res ipsa
loquitur to a § 1983 claim such as this, and the court has independently found none. See Ash v.
Boone Cty., Ky., No. CIV.A. 09-190-DLB, 2011 WL 4431820, at *6 (E.D. Ky. Sept. 22, 2011)
(“[I]t is well-settled that res ipsa loquitur does not apply to § 1983 excessive force claims,
because the standard of care is not negligence.”) (citing Clark–Murphy v. Foreback, 439 F.3d
280, 286 (6th Cir. 2006)); Ferrell, 2013 WL 12114471, at *2 (“[A] plaintiff has no cause of
action under § 1983 for the alleged negligent conduct of defendants which could have resulted in
the destruction or deprivation of his personal property.”). Accordingly, the court declines to
apply res ipsa loquitur in this case.
Likewise, Plaintiffs’ suggestion that the Restatement (Second) of Torts, § 433B(3) applies
to shift the burden to Sheriff McVicker to prove that he did not cause the damage lacks merit.
Pls.’ Mem. [DE-97] at 17–18. Even assuming § 433B(3) is appropriately applied to a § 1983
claim, and Plaintiffs cite no case law to suggest that it is, the Restatement only governs,
Where the conduct of two or more actors is tortious, and it is proved that harm
has been caused to the plaintiff by only one of them, but there is uncertainty as to
which one has caused it, the burden is upon each such actor to prove that he has
not caused the harm.
Restatement (Second) of Torts, § 433B(3) (emphasis added). Here, there were several law
enforcement officers present. With respect to the alleged roof damage, Deaver is the only officer
alleged to have been involved in removal of the cameras and lights, and there is no evidence he
did anything inside the stores. With respect to the alleged interior damage, Plaintiffs have no
evidence as to whether one actor or several caused the damage. Accordingly, by its own terms,
§ 433B(3) does not apply under the circumstances presented in this case.
29
Finally, Plaintiffs contend that supervisory liability attaches to Sheriff McVicker, not
because of supervisory indifference, tacit authorization, or inadequate supervision, but rather
because he personally directed his deputies to damage Plaintiffs’ property. Pls.’ Mem. [DE-97]
at 18–19. “In a § 1983 suit . . .—where masters do not answer for the torts of their servants—the
term “supervisory liability” is a misnomer. Absent vicarious liability, each Government official,
his or her title notwithstanding, is only liable for his or her own misconduct.” Iqbal, 556 U.S. at
677; see Danser v. Stansberry, 772 F.3d 340, 349 (4th Cir. 2014) (citing McWilliams v. Fairfax
Cnty. Bd. of Supervisors, 72 F.3d 1191, 1197 (4th Cir. 1996) (supervisors may not be held liable
under 42 U.S.C. § 1983 for actions of subordinate employees unless the supervisors have “direct
culpability” in causing the plaintiff’s injuries), overruled on other grounds by Oncale v.
Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998)).
As discussed above, the evidence
Plaintiffs suggest demonstrates Sheriff McVicker directed his deputies to damage Plaintiffs’
property is too speculative to support the inference.
In sum, there is insufficient evidence for a jury to reasonably conclude that Sheriff
McVicker played any material role in the investigation or the search and seizure of evidence, or
that he directed his deputies to damage Plaintiffs’ property. Accordingly, Sheriff McVicker is
entitled to qualified immunity, and summary judgment on the § 1983 individual capacity claim
against him is allowed.
ii. Official Capacity Claim
A plaintiff’s claim against a government official in his official capacity is treated as a
claim against the government entity of which the official is an agent. See Kentucky v. Graham,
473 U.S. 159, 165 (1985) (“[A]n official-capacity suit is, in all respects other than name, to be
30
treated as a suit against the entity.”).
government units.”
“In North Carolina, Sheriffs’ Departments are local
Howell v. Gagnon, No. 5:09-CT-3087-FL, 2010 WL 3239058, at *3
(E.D.N.C. Aug. 16, 2010) (citing S. Ry. Co. v. Mecklenburg Cnty., 56 S.E.2d 438, 440 (N.C. 1949)
(“The sheriff is the chief law enforcement officer of the county.”)). “Liability attaches to local
government units only if conduct directly causing the alleged deprivation is undertaken to
effectuate official policy or custom.” Id. (citing Monell v. Dep’t of Soc. Servs. of City of N.Y.,
436 U.S. 658, 694 (1978); see Jones v. Houston, No. 4:08-CV-121-F, 2010 WL 3835147, at *8
(E.D.N.C. Sept. 28, 2010) (citing Monell, 436 U.S. at 691). “A policy or custom for which a
local government entity may be held liable may arise in four ways: (1) through an express policy,
such as written ordinance or regulation; (2) through the decisions of a person with final
policymaking authority; (3) through an omission, such as a failure to properly train officers, that
‘manifest[s] deliberate indifference to the rights of citizens’; or (4) through a practice that is so
‘persistent and widespread’ as to constitute a ‘custom or usage with the force of law.’” Lytle v.
Doyle, 326 F.3d 463, 471 (4th Cir. 2003) (quoting Carter v. Morris, 164 F.3d 215, 218 (4th Cir.
1999)). An official capacity claim “fails as a matter of law where there is no underlying
constitutional violation.” Russ v. Causey, 732 F. Supp. 2d 589, 604 (E.D.N.C. 2010) (citing
Hinkle v. City of Clarksburg, 81 F.3d 416, 420–21 (4th Cir. 1996)).
Sheriff McVicker seeks summary judgment on the grounds that there is no allegation or
evidence of an unconstitutional policy, practice, or custom, or failure to train, on the part of the
BCSO. Defs.’ Mem. [DE-92] at 14–15. Plaintiffs indicate they are not pursuing an official
capacity claim against Deaver, only against Sheriff McVicker on the grounds that, as sheriff, he
directed and oversaw the destruction of Plaintiffs’ property. Pls.’ Mem. [DE-97] at 20–22. As
31
discussed above, the evidence indicates Sheriff McVicker had minimal involvement in the
investigation and search of the stores, and the evidence Plaintiffs rely on to infer that Sheriff
McVicker directed his deputies to damage Plaintiffs’ property is too speculative to create a
genuine issue of fact. Thus, assuming Sheriff McVicker is a “person with final policymaking
authority,” there is insufficient evidence to conclude that his decisions resulted in the destruction
of Plaintiffs’ property. Further, Plaintiffs point to no express policy, omission, or widespread and
persistent practice that could give rise to a policy or custom. Lytle, 326 F.3d at 471. Accordingly,
Plaintiffs have failed to create a genuine issue of material fact that the damage to their property
was the result of municipal policy or custom, and Sheriff McVicker is entitled to summary
judgment on this claim.
3.
Deputy Travis Deaver
Deaver presented the following evidence in support of his entitlement to qualified
immunity. Deaver did not supervise or give orders during the search but was instructed to
remove the security cameras from the roof of Big Aladdin, Deaver Dep. [DE-94-15] at 29:4–18,
60:3–8, and it is typical to seize security cameras in investigations such as this, Borresen Dep.
[DE-94-7] at 162:3–9. It was necessary for Deaver to get on Big Aladdin’s roof to remove the
security cameras because their wiring was entangled with other wires on the roof. Britt Dep.
[DE-94-1] at 49:1–50:12, 59:20–25. Deaver did not cut any cords while on the roof and was not
aware that cords were in fact cut, and he disconnected the cords from the security cameras before
removing them. Deaver Dep. [DE-94-15] at 47:15–48:6. Once on the roof, Deaver observed
stray cords and wires and, in order to unplug the cameras and remove them, Deaver had to first
disentangle a “big gum of wires” that were intertwined with the cords like “bird nests in a fishing
32
reel.” Id. at 62:18–24; Deaver Dep. [DE-97-4] at 29:25–30:2, 32:2–34:1. After unplugging the
cameras, Deaver removed them by pulling on the wood two-by-fours on which the cameras were
mounted. Deaver Dep. [DE-94-15] at 60:9–18. Deaver was able to remove the two-by-four by
simply picking it up because it was not well-secured to the building. Id. at 64:22–65:5. Deaver
also removed all of the LED lighting by unclipping it from tracks attached to the roof, which was
necessary because the lighting wires were entangled with the security camera wiring. Id. at
36:24–37:18, 38:20–39:20. The LED lighting wires were connected through the roof by a PVC
pipe. Pls.’ Resp. to RFA No. 27 [DE-94-11]. After removing the LED lighting, Deaver lowered
it from the roof onto the ground and left it there. Compl. [DE 1-1] ¶ 32; Deaver Dep. [DE-94-15]
at 39:21-40:11.
Deputy Deaver did not believe he damaged the LED lighting, which is
removable from the track without causing damage, and the lighting remains functional with a
working power supply. Deaver Dep. [DE-94-15] at 61:23–25; Pls.’ Resp. to RFA No. 29 [DE94-11]; Pls.’ Resp. Interrog. No. 24 [DE-94-17]. Deaver’s background includes completion of
basic electrical training classes at Bladen Community College and work as a volunteer firefighter
for the past seven years. Deaver Dep. [DE-94-15] at 29:4–18, 57:23–25, 65:20–66:15.
Plaintiffs presented the following evidence that conflicts with Deaver’s version of events.
Smith, who was familiar with the security camera and LED lighting wiring, indicated that the
wires were not, and could not have been, entangled because the wires for the security cameras
and LED lighting fed into separate conduits on the roof that are 10–15 feet apart from each other.
2d Smith Decl. [DE-96-2] ¶ 10. It was unnecessary to remove the LED lighting in order to seize
the security cameras, which could have been easily unplugged without pulling on or cutting any
wires. Id. Although the LED lighting could have been removed without causing damage,
33
Deaver removed the lighting in such a way to pull certain portions of the lighting track from the
building, damage the stucco, and damage the power supply to the LED lighting, which resulted
in a smoldering fire. Pls.’ Resp. to Interrog. Nos. 6, 8, 9 [DE-97-26]; Smith Dep. [DE-97-9] at
157:5–14, 168:21–172:6. Prior to the search, there were no leaks in the roof, but after the search,
the seal for the security camera conduit was damaged, resulting in a water intrusion and damage
in the ladies’ bathroom. 2d Smith Decl. [DE-96-2] ¶ 11.
The Sheriff Defendants contend that (1) the damage allegedly caused by Deaver is
“relatively minor” and “not unreasonable for purpose of the Fourth Amendment,” Defs.’ Mem.
[DE-92] at 13 (citing Neal v. Cal. City, No. 1:14-CV-269-AWI-JLT, 2015 WL 4227466, at *11
(E.D. Cal. July 10, 2015)); (2) Deaver is entitled to qualified immunity because any damage was
“reasonably necessary to effectuate” the removal of the security cameras pursuant to the search
warrant due to the wiring being entangled, id.; (3) leaving the LED lighting, which Deaver
believed was still functional, on the ground does not rise to a constitutional violation, id.; and (4)
Deaver’s actions amount to no more than negligence, which is insufficient to state a
constitutional claim under 42 U.S.C. § 1983, id. at 14 (citing Daniel v. Williams, 474 U.S. 327
(1986)). Taking the evidence in the light most favorable to Plaintiffs, the court finds that Deaver
is entitled to summary judgment on qualified immunity because his actions were, at most,
negligent and he did not violate a clearly established right.
First, there is no evidence that Deaver took any actions with respect to property other
than the removal of the LED lighting and cameras from the roof, and the court rejects Plaintiffs’
suggestion that it can be inferred he cut wires and cables inside the buildings. Pls.’ Mem. [DE97] at 19 n.8; see Chumley v. Miami Cty., Ohio, No. 3:14-CV-16, 2015 WL 859570, at *11 (S.D.
34
Ohio Feb. 27, 2015) (“Plaintiffs bear the burden of establishing that individual officers are
directly responsible for the alleged damage.”) (citing Gordon v. Louisville/Jefferson Cnty. Metro
Gov’t, 486 F. App’x 534, 541 (6th Cir. 2012) (affirming summary judgment in favor of officers
where plaintiff presented no evidence that any particular officer was responsible for the damage
alleged)); Koller, 933 F. Supp. 2d at 280 (“It is well established that the personal involvement of
a defendant-police officer is an essential prerequisite to money damages under 42 U.S.C.
§ 1983.”).
Next, although Plaintiffs contend Deaver removed the security cameras in an
unreasonable way by unnecessarily pulling on or cutting cords and causing damage to the
conduit, there is no requirement “that officers use the least possible destructive means to execute
a search warrant.” Johnson v. Manitowoc Cty., 635 F.3d 331, 335 (7th Cir. 2011) (finding the use
of a jackhammer rather than a saw that would have done less damage was not unreasonable).
“[S]o long as the officer’s conduct remains within the boundaries of reasonableness, an officer
has discretion over the details of how best to proceed with a search warrant’s execution.” Id.
(citing Lawmaster v. Ward, 125 F.3d 1341, 1349 (10th Cir. 1997)); see Dalia, 441 U.S. at 257
(“[I]t is generally left to the discretion of the executing officers to determine the details of how
best to proceed with the performance of a search authorized by warrant . . . .”). Moreover, “[t]he
reasonableness of the damage must be evaluated with reference to the target of the search.”
Koller, 933 F. Supp. 2d at 278.
The security cameras were within the scope of the search warrants, and while pulling on
or cutting cords in order to remove them may have been negligent, it was not sufficiently
unreasonable or malicious to state a constitutional claim under the Fourth Amendment. See Pac.
35
Marine Ctr., Inc. v. Silva, 809 F. Supp. 2d 1266, 1283 (E.D. Cal. 2011) (finding wiring ripped
from a panel during the seizure of a computer system was not unduly destructive where the
search included computer systems and a reasonable officer could have believed the actions were
necessary and constitutional), aff'd, 553 F. App’x 671 (9th Cir. 2014); see also Soichet v.
Toracinta, 111 F.3d 124 (2d Cir. 1997) (plaintiff failed to state a § 1983 claim where she alleged
the officers executing a search warrant related to drugs “ransacked” her apartment and destroyed
furniture, because “officers executing search warrants on occasion must damage property in
order to perform their duty.”) (citation omitted). Likewise, removal of the LED lighting and
leaving it on the ground, even if unnecessary as Plaintiffs contend, may have been negligent but
does not rise to the level of a constitutional violation where there is no evidence of anything
more than minimal damage to the lighting, track, and stucco. See United States v. Wyatt, No. 16CR-00057-MSK, 2016 WL 6956632, at *6 (D. Colo. Nov. 29, 2016) (finding property left on the
floor or in a pile was indicative of negligence, unlike the wholesale destruction of large numbers
of items or smashing of glass or other fragile items that are indicia of purposeful damage);
Chumley, 2015 WL 859570, at *11 (emptying the closets, dumping a coin collection onto the bed,
and leaving the house in disarray is insufficient to state a constitutional claim); Dockery v. Tucker,
No. 97-CV-3584 ARR RLM, 2008 WL 2673307, at *10 (E.D.N.Y. June 26, 2008) (finding
alleged destruction of two toilets and some electrical fixtures was “tangential destruction” that
did not state a claim of constitutional magnitude).
Finally, cases where courts have denied qualified immunity generally involve greater
levels of destruction of property than what is alleged here, and Plaintiffs have provided no
documentary evidence, such as pictures of the cut wires, damaged conduit, water or fire damage,
36
or any receipts from repairs, supporting that excessive destruction occurred. See Defs.’ Reply
[DE-102] at 2 (stating the Sheriff Defendants provided Plaintiffs with every photograph,
amounting to more than 300 pictures, taken by Lieutenant Johnson during the execution of the
search warrants); Clark Aff. [DE-94-18] ¶¶ 3–7 (the fire marshal found no active fire or
smoldering and observed “little damage . . . and very little soot on the ceiling in the store.”); see
also Gary M., 2017 WL 4236542 at *2 n.2, 5 (denying summary judgment where there was
evidence SWAT officers kicked in the television and needlessly destroyed a multitude of other
personal property, including laptops, a picture, a sofa, a washing machine, a bed and bedframe, a
CPAP machine, and the wooden frame surrounding the attic door); Jackson ex rel. Jackson v.
Suffolk Cty., 87 F. Supp. 3d 386, 402 (E.D.N.Y. 2015) (denying summary judgment where there
was evidence of significant damage, including “(1) that her kitchen was “totally destroyed,” (2)
that her living room furniture was flipped upside down and cut, (3) that Jeffrey’s clothes were
left in a bathtub, (4) that the basement carpet was ripped up, the basement furniture was cut open,
and basement doors were taken off their hinges, and (5) that dishes and other items were broken
and left in the driveway.”); Daniels v. City of New York, No. 16-CV-190 (PKC)(JO), 2018 WL
4119191, at *7 (E.D.N.Y. Aug. 29, 2018) (denying summary judgment on claim for an
unreasonably destructive search where the plaintiff took a video within hours of the search,
documenting and explaining the alleged damage to the apartment and personal property, and
distinguishing cases where no documentary evidence was produced to support the claim); Smith v.
City of New York, No. 04 CIV.3286 (TPG), 2010 WL 3397683, at *13 (S.D.N.Y. Aug. 27, 2010)
(allowing summary judgment on claim that law enforcement conducted an unduly destructive
search in executing a search warrant where the plaintiff failed to produce any documentary
37
evidence, such as photos of broken tools or any bills or receipts documenting repairs, to support
his testimony by declaration that the officers broke his tools and machines). Accordingly,
because Deaver acted no more than negligently and clearly established law allows for some
damage incidental to the execution of a search warrant, Deaver is entitled to qualified immunity
and summary judgment is allowed.
B.
Declaratory Judgment Claims
Plaintiffs’ declaratory judgment claim—seeking a declaration that “the actions of
Defendants with regard to the Plaintiffs’ property were excessive and unnecessary, and violated
Plaintiffs’ rights under the Fourth and Fourteenth Amendments to the United States Constitution,”
Compl. [DE-1-1] ¶ 154—fails as to all Defendants for the same reasons stated above with respect
to the § 1983 claim. In response to the motion for summary judgment filed by the Sheriff
Defendants, Plaintiffs note that their declaratory judgment claim was asserted to lay the
foundation for, and is factually subsumed in, the § 1983 claim. Pls.’ Mem. [DE-97] at 12–13 n.5.
Accordingly, summary judgment on this claim is allowed.
C.
Takings Claims - United States Constitution
The Sheriff Defendants contend they are entitled to summary judgment as a matter of law
because the Takings Clause does not apply when property is seized during a criminal
investigation or pursuant to a lawful search warrant. Defs.’ Mem. [DE-92] at 19–21. Plaintiffs
respond that their claim does not relate to the property seized but rather to the damage caused to
the buildings. Pls.’ Resp. [DE-97] at 23–24. The court agrees that the Sheriff Defendants are
entitled to summary judgment as a matter of law because the alleged damage was caused as a
result of the exercise of police power rather than eminent domain power.
38
The Fifth Amendment to the United States Constitution, applicable to the states through
the Fourteenth Amendment, prohibits the taking of private property without just compensation.
U.S. Const. amends. V. & XIV. “[T]he Takings Clause does not apply when property is retained
or damaged as the result of the government’s exercise of its authority pursuant to some power
other than the power of eminent domain.” Denby v. City of Casa Grande, No. CV-17-00119PHX-SPL, 2018 WL 1586650, at *3 (D. Ariz. Mar. 31, 2018) (citing AmeriSource Corp. v.
United States, 525 F.3d 1149, 1154 (Fed. Cir. 2008)). Here, the alleged damage to Aladdin’s
buildings was caused during the exercise of the government’s “police power” and did not occur
as a result of the government converting the property to a “public use” within the meaning the
Fifth Amendment. See Patty v. United States, 136 Fed. Cl. 211, 214 (2018) (“The distinction
between an exercise of the police power and a constitutional taking . . . [i]s ‘whether the
governmental action operates to secure a benefit for or to prevent a harm to the public.’”
(quoting Morton Thiokol, Inc. v. United States, 4 Cl. Ct. 625, 630 (1984)). In Patty v. United
States, the government, through a confidential informant who worked for plaintiffs, used the
plaintiffs’ truck without their consent in a DEA controlled drug delivery, and the truck was
damaged and then impounded by the government. 136 Fed. Cl. at 212–13. The Patty court
found that plaintiffs stated a claim under the Takings Clause because the plaintiffs’ interest in the
truck was infringed upon for public use in pursuing unrelated law enforcement, distinguishing
cases where the government’s action was directed toward property related to the law
enforcement activity. Id. at 214–15. Thus, whereas here, the damage to Plaintiffs’ property
occurred during the execution of a search warrant for the damaged premises, the Takings Clause
is not implicated and Plaintiffs’ claims are more appropriately analyzed under the Fourth
39
Amendment.
See Chumley, 2015 WL 859570, at *10–11 (analyzing claim that plaintiff’s
property was damaged during a search under the Fourth Amendment rather than the Takings
Clause). Accordingly, the Sheriff Defendants are entitled to summary judgment on the Fifth
Amendment Takings Clause claim as a matter of law.
D.
State Law Claims
Having allowed summary judgment on the federal claims, remaining against David and
the Sheriff Defendants are Plaintiffs’ takings claim under the North Carolina Constitution and
state law conversion claim. In removing this case from state court, Defendants invoked the
court’s federal question jurisdiction. [DE-1] ¶ 3 (citing 28 U.S.C. § 1331). “Pursuant to 28
U.S.C. § 1367(c)(3), this court has discretion to decline to exercise supplemental jurisdiction if
the court ‘has dismissed all claims over which it has original jurisdiction,’” and “[t]his statutory
authorization grants the court the power to ‘dismiss the claim or, if it was removed, remand it to
State court.’” Berry v. S. States Coop., Inc., No. 5:17-CV-635-FL, 2018 WL 4365499, at *3
(E.D.N.C. Sept. 13, 2018) (quoting Safar v. Tingle, 859 F.3d 241, 257 (4th Cir. 2017)); see
Nelson v. Nationstar Mortg. LLC, No. 7:16-CV-307-BR, 2017 WL 1167230, at *3 (E.D.N.C. Mar.
28, 2017) (dismissing plaintiff’s federal claims over which the court had original jurisdiction and
declining to exercise supplemental jurisdiction over plaintiff’s state law claims) (citing Hinson v.
Norwest Fin. S.C., Inc., 239 F.3d 611, 617 (4th Cir. 2001) (holding a district court’s power to
remand pendent state law claims to state court is inherent in statutory authorization to decline
supplemental jurisdiction under 28 U.S.C. § 1367(c)).
Remand is particularly appropriate here, where Plaintiffs’ takings claim under the North
Carolina Constitution appears to be a novel application of that law, which is generally not
40
applied when the damage results from an exercise of police power, but for some narrow
exceptions not at issue in this case. See Beroth Oil Co. v. N.C. Dep’t of Transp., 367 N.C. 333,
342, 757 S.E.2d 466, 474 (2014) (“[D]amages resulting from the exercise of police power are
noncompensable.”) (citation omitted); see also Kirby v. N.C. Dep’t of Transp., 368 N.C. 847, 854,
786 S.E.2d 919, 924 (2016) (recognizing “[p]olice power regulations must be enacted in good
faith, and ha[ve] appropriate and direct connection with that protection to life, health, and
property which each State owes to her citizens,” and “[a]n exercise of police power outside these
bounds may result in a taking.”) (emphasis added) (some citations and internal quotation marks
omitted) (citing Responsible Citizens in Opposition to Flood Plain Ordinance v. City of Asheville,
308 N.C. 255, 256, 302 S.E.2d 204, 205 (1983) (considering a takings claim in the context of “a
city ordinance setting forth land-use regulations on property designated a flood hazard area”));
Letendre v. Currituck Cty., — N.C. App. —, 817 S.E.2d 73, 78 (2018) (considering a takings
claim in the context of a county’s Unified Development Ordinance); Robinson v. N.C. Dep’t of
Transp., 89 N.C. App. 572, 574, 366 S.E.2d 492, 493 (1988) (considering a takings claim in the
context of a public construction project that damaged the plaintiffs’ property). Accordingly,
because there no longer exists an independent basis for federal jurisdiction, the court declines to
exercise supplemental jurisdiction over the remaining state law claims and they are remanded to
Bladen County Superior Court.
V. CONCLUSION
For the reasons stated herein, Defendant David’s motion for summary judgment [DE-87]
and Defendants McVicker’s and Deaver’s motion for summary judgment [DE-91] are allowed as
to the § 1983 claim, the declaratory judgment claim, and takings claim under the United States
41
Constitution, and the state law claims are remanded to Bladen County Superior Court. The Clerk
is directed to close the case.
SO ORDERED, the 2nd day of November 2018.
___________________________
Robert B. Jones, Jr.
United States Magistrate Judge
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