HAYNES et al v. THE CITY OF DURHAM, N.C. et al

Filing 64

MEMORANDUM OPINION AND ORDER Signed by JUDGE THOMAS D. SCHROEDER on 2/5/2016. For the reasons stated herein, the Officer Defendants' 45 Motion for Partial Summary Judgment is GRANTED. All remaining claims against Defendant Yount are her eby DISMISSED WITH PREJUDICE. In addition, Count III of the Complaint is DISMISSED WITH PREJUDICE as against all Defendants. The City's 53 Motion for Summary Judgment is GRANTED. All claims against the City are hereby DISMISSED WITH PREJUDICE. Plaintiffs' 39 Motion to Exclude the Expert Testimony of Ann C. Hamlin is DENIED. (Engle, Anita)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

ROBYN HAYNES and ERIC JACKSON,
Plaintiffs,
v.
CITY OF DURHAM, N.C., MARK
WENDELL BROWN, JR.; DANNY
REAVES; TIMOTHY STANHOPE;
LAWRENCE VAN DEWATER; VINCENT
PEARSALL; and JERRY YOUNT,
Defendants.

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1:12cv1090

MEMORANDUM OPINION AND ORDER
THOMAS D. SCHROEDER, District Judge.
Plaintiffs Robyn Haynes and Eric Jackson bring this action
against

six

Durham

Police

Department

officers

(“the

Officer

Defendants”) and the City of Durham (“the City”) pursuant to 42
U.S.C.

§ 1983

for

various

alleged

federal constitutional rights.

violations

of

Plaintiffs’

Plaintiffs also allege several

causes of action under the common law and Constitution of North
Carolina.

Before the court are the Officer Defendants’ motion for

partial summary judgment (Doc. 45) and the City’s motion for
summary judgment on all claims against it (Doc. 53).
reasons

set

forth

below,

both

motions

will

be

For the

granted.

In

addition, Plaintiffs move to exclude testimony from an expert
witness.

(Doc. 39.)

For the reasons set forth below, Plaintiffs’

motion will be denied.

I.

BACKGROUND
The facts of the case, viewed in the light most favorable to

Plaintiffs as the nonmoving parties, are as follows:
On the morning of October 8, 2009, Jackson borrowed Haynes’
car and drove it from a convenience store to his nearby home in
Durham, North Carolina.

(Doc. 51 at 24:10–15, 36:9–14, 37:11–23,

38:24–39:9.) After Jackson parked the car and began walking toward
his home, Officer Mark Wendell Brown approached in his patrol car
and ordered Jackson back into Haynes’ car.

(Id. at 39:2–11.)

Jackson complied and produced his driver’s license and Haynes’
registration.

(Id. at 40:11–20.)

why he was being detained. 1

Brown refused to tell Jackson

(Id. at 40:11–41:6.)

Brown returned

to his patrol car to write a citation, leaving Officer Lawrence
Van Dewater with Jackson.

(Doc. 48 at 13:20–14:3.)

While Brown was writing the citation, he called a K-9 unit to
search for illegal drugs.

(Id. at 14:6–13, 19:2–9.)

The unit

arrived and a dog was deployed, but the dog did not alert to the
presence of illegal narcotics.

(Id. at 22:5–6.)

1

Brown then gave

According to Brown, Jackson was stopped for failing to maintain lane
control after Brown observed Jackson driving in the middle of the road.
(Doc. 48 at 12:1–8.)
Brown claims that he initially suspected that
Jackson might be drunk, but Jackson explained that he usually drove in
the middle of that road to avoid children playing in the street. (Id.
at 12:9–13:11.) Jackson denies that he drove in the middle of the road
or that this conversation took place. (Doc. 51 at 41:1-10.)

2

Jackson

a

citation

for

failing

terminated the encounter.

to

maintain

lane

(Id. at 24:15–25:4.)

control

and

Jackson went

inside his home (Doc. 51 at 48:9–24) 2 while the officers retreated
to a nearby side street and continued to monitor Jackson’s home
(Doc. 48 at 23:4–15).
Sometime later, Jackson emerged from his home and rolled a
trash can to the street.

(Doc. 51 at 48:9–24.)

Brown inspected

the contents of the trash can, finding loose tobacco shavings. 3
(Id.

at

53:1–11.)

Believing

this

to

be

evidence

paraphernalia, Brown left to get a search warrant.
53:1–11.)

of

drug

(Doc. 51 at

Corporal Vincent Pearsall approached Jackson’s home and

stood in the front doorway, preventing Jackson from closing the
door.

(Id.

at

26:4–10.)

Van

Dewater

and

several

other

unidentified officers congregated on the front steps and in the
street in front of Jackson’s driveway.

(Id. at 58:6–13.)

Jackson eventually tried to close the front door to his home.
(Id. at 18–19:3.)
(Id.)

This prompted Pearsall to yell, “Lock it down.”

Pearsall and Van Dewater entered Jackson’s living room,

2

Van Dewater allegedly told Brown that Jackson had stated that the dog
would not alert to any narcotics because his drugs were wrapped too
tightly, or something to that effect. (Doc. 48 at 22:17–21.) Because
Jackson denies making any such statement (Doc. 51 at 46:23–47:5), the
court does not consider it.

3

Brown claims that he found the “hollowed out insides of cigars,” as
well as empty sandwich bags with the corners cut off. (Doc. 48 at 27:4–
22.) Jackson admits that Brown found loose cigar tobacco in the trash
can, but Jackson did not observe any bag corners. (Doc. 51 at 53:1–
55:10.)

3

another officer used his cruiser to block Haynes’ car in the
driveway, and several other officers took up positions on Jackson’s
front porch.

(Id. at 59:4–60:9, 64:2–14.)

Feeling threatened,

Jackson went outside and called 911 from his cell phone.

(Id. at

61:3–9.)

(Id. at

The officers then placed Jackson in handcuffs.

61:10–12.)
At some point, 4 Officer Jerry Yount arrived in response to
Jackson’s 911 call and observed the other officers surrounding
Jackson’s house.

(Doc. 47 at 11:24–12:5.)

Pearsall informed him

that the officers were holding the house while they applied for a
search warrant.

(Id. at 17:6–12.)

Pearsall then stepped away so

that Jackson could speak freely with Yount.

(Id. at 12:16–13:14.)

Jackson told Yount that the officers were harassing him.
19:2–5.)

(Id. at

Yount responded that he would take Jackson’s complaint,

but that any report would need to be passed on to the district
commander. 5

(Id. at 12:16–13:14.)

Jackson replied that he did

not need to speak with Yount, and Yount left the scene. 6

(Id.)

4

Yount testified that Jackson was not in handcuffs when he arrived on
the scene. (Doc. 47 at 30:1–8.) Nevertheless, Yount got the impression
that Pearsall did not want Jackson to leave the scene. (Id. at 29:2125.)
5

Jackson does not remember speaking to Yount.

6

(Doc. 51 at 62:4–63:11.)

Yount testified that he was present at Jackson’s house for a total of
three minutes. (Doc. 47 at 7:17–8:5.) Jackson testified that Yount was
present for “[m]aybe 20, 30 minutes.” (Doc. 51 at 63:3–6.)

4

Eventually,

Brown

returned

Jackson’s home and vehicle.

with

a

search

(Doc. 51 at 64:21—65:5.)

warrant

for

Jackson was

placed in the backseat of a police car with the heat turned all
the way up and the radio at full volume.

(Id. at 65:11—66:3.)

The officers then searched Jackson’s home, finding a “tannish
powdery substance” on a shelf in an upstairs bedroom. 7
at 22:21—23:12.)

(Doc. 60

Meanwhile, other officers searched Haynes’ car,

disassembling

the

vehicle

as

needed

compartments.

(Doc. 49 at 21:13—24:6.)

to

search

for

hidden

Noticing a white powdery

substance in the air ducts and vents behind a door panel, the
officers removed the vents from the car for further testing. 8

(Id.

at 23:16—25:11.)
Jackson was arrested and transported to the Durham County
Jail.

(Doc. 51 at 76:23—77:2.)

He was ultimately charged with

possession of heroin and cocaine.

(Id. 78:1—3.)

Confirmatory

testing at the North Carolina State Crime Laboratory revealed that
the substances found in Haynes’ car was sugar, and that the
substance found in Jackson’s home was tergitol, a chemical used in
some detergents.

(Doc. 59 at 29:18—32:7.)

On January 12, 2010,

the State dropped the criminal charges against Jackson.

(Doc. 51

7

Pearsall testified that this substance tested positive in the field
for heroin. (Doc. 50 at 11:10—20.) Angela Thomas, a civilian present
in Jackson’s home that day, testified that the substance tested negative
in the field. (See Doc. 58 at 51:2–12.)
8

Officer Timothy Stanhope testified that this substance tested positive
in the field for cocaine. (Doc. 49 at 23:19—24:6.)

5

at 90:3—9.)
II.

This action followed.

ANALYSIS
A.

Standard of Review

“The court shall grant summary judgment if 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.”
P. 56(a).

Fed. R. Civ.

The moving party bears the burden of establishing that

no genuine dispute of material fact remains.

Where the nonmoving

party has the burden of proof, the moving party is entitled to
summary judgment if it demonstrates that the nonmoving party’s
evidence is insufficient to establish an essential element of her
claim.

Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986).

But summary judgment will not be granted where “the evidence is
such

that

a

reasonable

nonmoving party.”
248 (1986).

jury

could

return

a

verdict

for

the

Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

For the purposes of these motions, the court regards

statements of the nonmoving party as true and draws all justifiable
inferences in the nonmoving party’s favor.

Id. at 255.

But a

nonmoving party must establish more than the “mere existence of a
scintilla of evidence to support his position.”
the

evidence

probative,

is

“merely

summary

(citations omitted).

colorable,

judgment

may

be

or

is

Id. at 252.

not

granted.”

If

significantly
Id.

at

249–50

Ultimately, summary judgment is appropriate

where the nonmoving party fails to offer “evidence on which the
6

jury could reasonably find for the plaintiff.”
B.

Id. at 252.

Unopposed Motions

Plaintiffs

do

not

oppose

summary

judgment

in

Defendants on many of the counts in this case.

favor

of

For example,

Plaintiffs indicate that they do not intend to pursue claims
against the City with regard to Counts I through IV. 9
5.) 10

(Doc. 57 at

Similarly, Plaintiffs do not dispute that their claims

against the City in Counts VII through X are derivative of claims
against the Officer Defendants that were dismissed by a prior order
of this court.

(Id. at 4.)

Finally, Plaintiffs concede that their

claims against the City for common law malicious prosecution and
negligent

supervision

(Counts

doctrine of sovereign immunity.

XI

and

XII)

are

(Id. at 11—12.)

barred

by

the

Accordingly, the

court will enter summary judgment in favor of the City on Counts
I through IV and VII through XII.
Plaintiffs also do not oppose the Officer Defendants’ motion
for summary judgment on Plaintiffs’ § 1983 claim for concealment
of evidence (Count III).

(Id. at 8—9.)

Although Plaintiffs

disagree with the characterization of this claim as duplicative of

9

Plaintiffs contend that the City’s motion with regard to Counts I
through IV should be denied as moot because Plaintiffs did not bring
these claims against the City.
(Doc. 57 at 5.)
In a prior order,
however, the court substituted the City as the real party in interest
on all of Plaintiffs’ claims against the Officer Defendants in their
official capacity, including Counts I through IV. (Doc. 30 at 10.)
10

Plaintiffs’ response briefs inexplicably do not contain page numbers,
as required by Local Rule 7.1(a). (See Docs. 56, 57.)

7

the other § 1983 claims, they do not oppose a grant of summary
judgment in favor of the Officer Defendants on Count III so long
as they are permitted to present evidence regarding the Officer
Defendants’ alleged concealment.

(Id.)

Accordingly, the court

will enter summary judgment in favor of the Officer Defendants on
the concealment claim in Count III, 11 with the condition that doing
so

does

not

admissible

and

preclude
relevant

Plaintiffs
evidence

from
of

presenting

the

Officer

otherwise
Defendants’

alleged concealment of evidence or any damages flowing therefrom.
C.

Section 1983 Claims Against Yount

The

Officer

Defendants

move

for

summary

Plaintiffs’ remaining claims against Yount.

judgment

on

In a prior order, the

court dismissed most of the claims against Yount because the
complaint did not allege that he searched Jackson’s home or Haynes’
car

or

otherwise

injuries.

contributed

(Doc. 30 at 7—9.)

directly

to

Plaintiffs’

alleged

As a result, the court concluded

that Yount could only be liable on indirect theories, such as civil
conspiracy or bystander liability under § 1983.

(Id.)

After

discovery, the Officer Defendants now argue that Plaintiffs have
failed to produce sufficient evidence from which to infer that
Yount could be liable as a conspirator or bystander.

11

Count III also contains a claim for conspiracy to conceal evidence,
which the court dismissed against the Officer Defendants in a prior
ruling. (Doc. 30 at 19.)

8

An officer is liable for § 1983 violations committed by other
individuals if the officer conspired to do so.
Brown, 983 F.2d 570, 578 (4th Cir. 1992).

See Hafner v.

“To establish a civil

conspiracy under § 1983, [plaintiffs] must present evidence that
[the defendants] acted jointly in concert and that some overt act
was done in furtherance of the conspiracy.”

Hinkle v. City of

Clarksburg, 81 F.3d 416, 421 (4th Cir. 1996).

Although plaintiffs

“need not produce direct evidence of a meeting of the minds,” they
“must come forward with specific circumstantial evidence that each
member of the alleged conspiracy shared the same conspiratorial
objective.”

Id.

Absent evidence that a defendant knew that others planned to
engage in unlawful conduct, a defendant’s mere presence does not
justify an inference of a civil conspiracy.

See, e.g., Lewis v.

Gupta, 54 F. Supp. 2d 611, 619 (E.D. Va. 1999) (father not liable
for civil conspiracy when he was present at meetings in which his
daughter made false statements to the police but there was no
allegation that he knew his daughter was lying); see also Harding
v. United States, 182 F.2d 524, 526 (4th Cir. 1950) (holding, in
the criminal context, that “[m]ere presence is not enough to
justify an inference of a conspiracy”).

“Acquiescence can amount

to a conspiracy agreement,” however, when “one police officer
watches an open break of the law and does nothing to seek its
prevention.”

Hafner, 983 F.2d at 578 (holding a police officer
9

liable for conspiracy when he watched his fellow officers beat a
suspect who had already been subdued).

In the absence of such an

open violation of law, however, a conspiracy cannot be proved
simply through “speculation and the piling of inferences.”

See

Hinkle, 81 F.3d at 426.
Along similar lines, an officer may also be liable for § 1983
violations

committed

bystander liability.

by

other

individuals

under

a

theory

of

Randall v. Prince George’s Cty., 302 F.3d

188, 203 (4th Cir. 2002).

“The concept of bystander liability is

premised on a law officer’s duty to uphold the law and protect the
public from illegal acts, regardless of who commits them.”

Id.

Thus, an officer may be held liable as a bystander if he “(1) knows
that a fellow officer is violating an individual’s constitutional
rights; (2) has a reasonable opportunity to prevent the harm; and
(3) chooses not to act.”

Id.

Here, Plaintiffs have failed to produce evidence to support
a finding that Yount knew that his fellow officers were violating
Plaintiffs’ constitutional rights.

Yount testified that he did

not work directly with the other Officer Defendants (Doc. 47 at
9:6–10:25, 24:25–25:8), whom he believed were waiting for a search
warrant (id. at 11:24–12:11).

He did not ask them what they were

doing because he assumed they had probable cause and appeared to
be following standard procedures.

(Id. at 15:13–21, 19:22–20:8.)

Finally, he says that he left the scene before the other officers
10

began to search Jackson’s home and Haynes’ car.

(Id. at 16:7–12,

25:11–26—8.)
Plaintiffs
testimony.

have

offered

no

evidence

to

rebut

Yount’s

Instead, Plaintiffs argue that a reasonable jury could

infer that Yount shared a conspiratorial objective with the other
officers.

To support this assertion, Plaintiffs note that Yount

responded to a 9ll call requesting a police supervisor (id. at
18:3–12), was present on the scene for as long as thirty minutes
(Doc. 51 at 63:3–9), 12 saw the other officers locking down Jackson’s
home (Doc. 47 at 15:13–21), spoke briefly with at least one of the
officers (Doc. 51 at 63:3–9), and heard Jackson complain about
police harassment (Doc. 47 at 19:2–5).

If the other officers had

been engaged in an “open break of the law,” then perhaps a
reasonable jury could infer Yount’s knowledge of the violations,
and therefore a conspiratorial objective, from his acquiescence.
See Hafner, 983 F.2d at 578.
basis

from

which

Yount

But undisputed testimony reveals no

should

have

concluded

that

the

other

officers were engaged in an open break of the law while he was on
the scene, but rather indicates that they appeared to be following
the proper procedures and protocols.
20:8.)

(Doc. 47 at 15:13–21, 19:22–

Furthermore, Yount testified that civilians routinely ask

12 Jackson testified that Yount was present for “[m]aybe 20, 30 minutes.”
(Doc. 51 at 63:3–6). Yount testified that, based on his review of 911
records, he was only present at Jackson’s home for three minutes. (Doc.
47 at 7:17–8:5.)

11

to speak to a supervisor when they do not like what other officers
are telling them.

(Doc. 47 at 18:3–12.)

In the absence of any

evidence to suggest that Yount knew that the other officers had or
intended to violate the law, this circumstantial evidence is
“probative of a conspiracy only through speculation and the piling
of inferences.”
In

sum,

See Hinkle, 81 F.3d at 426.

undisputed

evidence

establishes

that

Yount

was

present at Jackson’s home for a limited period of time, engaged in
minimal

communication

with

Jackson

and

the

other

officers,

observed the officers behaving in a manner that appeared to be
consistent with proper police procedures, and left before the other
officers searched Jackson’s person, home, and car.

Thus, even

when viewed in the light most favorable to Plaintiffs, the evidence
is insufficient to support a finding that Yount knew that the other
officers were violating Jackson’s rights.

Such knowledge is

necessary to establish a claim for either civil conspiracy or
bystander liability under § 1983.
Randall, 302 F.3d at 203.

See Hinkle, 81 F.3d at 421;

Accordingly, the court will enter

summary judgment in favor of Yount on these claims.
D.

Section 1983 Claims Against the City

In addition to the claims against the Officer Defendants,
Plaintiffs also bring two § 1983 claims against the City for
“municipal liability” (Count V) and “supeervisory [sic] liability”
(Count VI).

(Doc. 1 at 20–21.)

“[A] municipality cannot be held
12

liable under § 1983 on a respondeat superior theory.”
Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978).

Monell v.
Rather, to

establish liability against a municipality, a § 1983 plaintiff
must show the existence of an official policy or custom that is
fairly

attributable

to

the

municipality

and

that

caused the deprivation of a constitutional right.

proximately
Pettiford v.

City of Greensboro, 556 F. Supp. 2d 512, 530 (M.D.N.C. 2008)
(quoting Jordan ex rel. Jordan v. Jackson, 15 F.3d 333, 338 (4th
Cir.

1994)).

ordinances

Municipal

and

policy

regulations,

can

(2)

be

found

affirmative

in

(1)

written

decisions

of

policymaking officials, or (3) omissions by policymaking officials
that manifest deliberate indifference to the rights of citizens.
Carter v. Morris, 164 F.3d 215, 218 (4th Cir. 1999).

In addition

to these formal decision-making channels, a municipal policy may
also arise “if a practice is so ‘persistent and widespread’ and
‘so permanent and well settled as to constitute a “custom or usage”
with the force of law.’”

Id. (quoting Monell, 436 U.S. at 691.)

Here, Plaintiffs have presented no evidence regarding an
improper
persistent

ordinance

or

widespread

regulation,
practice

nor

have

encouraging

they

police

alleged
officers

a
to

engage in illegal searches and seizures or to arrest citizens
without probable cause.
any

improper

actions

Instead, Plaintiffs primarily argue that
taken

by

the

Officer

Defendants

are

attributable to affirmative decisions by a policymaking official.
13

To support this assertion, Plaintiffs cite the following passage
from Van Dewater’s deposition:
Q: All right. How did you become aware of this call,
for lack of a better word? Were you dispatched to the
scene? Or did you just hear chatter over the radio?
A: No. As team members, we stay close to each other and
when it’s called out on the radio, we check in with each
other.
Because we’re all part of a team.
We don’t
answer dispatch calls so ...
Q: Say that again.
A: We don’t answer dispatch calls. We -- our unit is a
street-level unit where we work together. We actually,
basically, do whatever the captain wants us to do.
Q: Gotcha.
A: So ...
Q: And your unit was the HEAT unit?
A: Yes.
Q: Is that right? H-E-A-T?
A: Yes. High Enforcement Abatement Team it’s called.
Q: Right. And so that unit doesn’t -- isn’t dispatched
to calls?
A: No. What the High Enforcement Abatement Team’s
responsibilities are is we go to high-crime areas, and
we try to abate or lessen crime, whether by traffic stops
or citations, making arrests. Basically, like, if a
citizen complains about something in their area, maybe
drugs or -- like, anything that captain wants us to do
or what we’re assigned to do, that’s what we do. We work
together as a team.
(Doc. 60 at 10:13–11:14.)

Plaintiffs characterize this passage as

an

HEAT

“admission”

that

the

unit’s

14

“captain

was

the

City’s

official with final policymaking authority over the conduct giving
rise to Plaintiffs’ claims, and that Officer Van Dewater and his
co-defendants were doing what the City’s senior policy-making
official wanted them to do.”

(Doc. 57 at 6.)

Plaintiffs both mischaracterize and overstate Van Dewater’s
testimony.

Van Dewater did not state or imply that his captain

instructed or encouraged the Officer Defendants to do anything
improper.

And even if Van Dewater had, his testimony does not

provide any evidence to support Plaintiffs’ assertion that the
unidentified police captain had official policymaking authority on
behalf of the City.

See Pembaur v. City of Cincinnati, 475 U.S.

469, 482—83 (1986) (“The fact that a particular official — even a
policymaking

official

—

has

discretion

in

the

exercise

of

particular functions does not, without more, give rise to municipal
liability based on the exercise of that discretion.

The official

must also be responsible for establishing final government policy
respecting such activity before the municipality can be held
liable.”) (citations omitted); Spell v. McDaniel, 824 F.2d 1380,
1386

(4th

Cir.

1987)

(“‘[P]olicymaking

authority’

implies

authority to set and implement general goals and programs of
municipal government, as opposed to discretionary authority in
purely operational aspects of government.”). 13

13

Troubling, this is not the only instance of Plaintiffs plainly

15

Plaintiffs also argue that a reasonable jury could find that
the City was deliberately indifferent to the rights of its citizens
based on the Officer Defendants’ failure to report their alleged
constitutional violations and the City’s corresponding failure to
investigate complaints related to the incident.
Even

assuming

indifference,

that

this

however,

it

conduct

amounted

unquestionably

(Doc. 57 at 7.)
to

occurred

deliberate
after

Officer Defendants searched Haynes’ car and arrested Jackson.

the
As

a result, the City’s alleged indifference could not possibly have
been a proximate cause of Plaintiffs’ injuries.

See Pettiford,

mischaracterizing the parties’ testimony or positions in this case.
Plaintiffs claim that the Officer Defendants acknowledge “the absence
of probable cause,” “false statements and material omissions made to
mislead a magistrate into issuing the search warrant,” “the lack of
evidence of cocaine or heroin,” and that field testing “showed that the
suspected controlled substances were not controlled substances.” (Doc.
56 at 8.) The Officer Defendants deny such claims, and the court can
find no evidence that any officer testified that any such wrongdoing
took place. Plaintiffs appear to base this bold assertion on a single
statement from an argument regarding duplicative counts in the complaint.
Specifically, the Officer Defendants argued that Count III (conspiracy
to conceal evidence) is duplicative of Counts I and II because “Mr.
Jackson is already seeking relief, and already has a claim, arising out
of” the search of his home and vehicle. (Doc. 46 at 18.) This statement
cannot be fairly claimed to be an admission of wrongdoing. Similarly
troubling, Plaintiffs assert that the “universal understanding of every
officer involved . . . was that there was no probable cause” to search
or seize Jackson or Haynes’ car. (Doc. 57 at 7–8.) There is no evidence
any officer had such an understanding; it is only a contention. Finally,
Plaintiffs claim that the City suffers from “persistent and widespread
failures to document police use of force generally.” (Doc. 57 at 7.)
But apart from the accusations regarding Jackson and Haynes in this case,
Plaintiffs have not alleged, much less provided evidence to support, any
instance of wrongful conduct by the City or the Durham Police Department.
Such
statements
exceed
the
bounds
of
zealous
advocacy,
are
mischaracterizations of the record, and needlessly complicate the
court’s review of the record. Plaintiffs are admonished that any further
mischaracterization of the record will be addressed by the court. See
Fed. R. Civ. P. 11(b)(3).

16

556 F. Supp. 2d at 530 (explaining proximate cause as an element
of a cause of action against a municipality under § 1983).
In sum, Plaintiffs have failed to produce any evidence of an
improper official policy or custom of the City or evidence from
which a reasonable jury could find it to be a proximate cause of
Plaintiffs’ injuries.
judgment

to

the

As a result, the court will grant summary

City

on

Plaintiffs’

claims

for

Monell

and

supervisory liability (Counts V and VI).
E.

State Constitutional Claim Against the City

The City also moves for summary judgment on Plaintiffs’ claims
for alleged violations of the North Carolina Constitution (Count
XIII).
Officer

The complaint alleges that the City, acting through the
Defendants

in

their

official

capacities,

violated

Plaintiffs’ rights under Article I, §§ 19 and 21 of the North
Carolina Constitution.

(Doc. 1 ¶¶ 144—49.)

Those provisions

protect Plaintiffs’ rights to due process of law, equal protection
of the laws, and freedom from illegal restraint.

N.C. Const. art.

I, § 19 (“No person shall be . . . deprived of his life, liberty,
or property, but by the law of the land.

No person shall be denied

the equal protection of the laws.”), § 21 (“Every person restrained
of his liberty is entitled to a remedy to inquire into the
lawfulness thereof, and to remove the restraint if unlawful.”).
Plaintiffs specifically pleaded these claims as a backup “in the
event that their state law remedies are inadequate to compensate
17

them for the deprivation of their state constitutional rights.”
(Doc. 1 ¶ 148.)
The North Carolina Constitution does not provide an explicit
cause of action for citizens to enforce their rights.
Constitutional rights are self-executing, however.

State

See Midgett v.

N.C. State Highway Comm’n, 260 N.C. 241, 249–50, 132 S.E.2d 599,
608 (1963), overruled in part by Lea Co. v. N.C. Bd. of Transp.,
308 N.C. 603, 304 S.E.2d 164 (1983).

“Therefore, in the absence

of an adequate state remedy, one whose state constitutional rights
have been abridged has a direct claim against the State under our
Constitution.”

Corum v. Univ. of N.C. ex rel. Bd. of Governors,

330 N.C. 761, 782, 413 S.E.2d 276, 289 (1992).

Before allowing a

claim to proceed directly under the North Carolina Constitution,
a court “must bow to established claims and remedies where these
provide

an

alternative

to

the

extraordinary

exercise

of

its

inherent constitutional power.” Corum, 330 N.C. at 784, 413 S.E.2d
at 291.

If an adequate statutory or common law remedy exists at

state law, a plaintiff may not proceed with a direct constitutional
claim.

See Copper ex rel. Copper v. Denlinger, 363 N.C. 784, 788—

89, 688 S.E.2d 426, 428–29 (2010).
A state-law remedy is adequate when “assuming the plaintiff’s
claim is successful, the remedy would compensate the plaintiff for
the same injury alleged in the direct constitutional claim.”
Estate of Fennell ex rel. Fennell v. Stephenson, 137 N.C. App.
18

430, 437, 528 S.E.2d 911, 915–16 (2000), rev’d in part on other
grounds, 354 N.C. 327, 554 S.E.2d 629 (2001); see also Davis v.
Town of Southern Pines, 116 N.C. App. 663, 675–76, 449 S.E.2d 240,
248 (1994) (finding that a plaintiff’s false imprisonment claim,
if successful, would compensate for the injury the plaintiff
claimed

in

a

constitutional

claim

for

unlawful

restraint);

Googerdy v. N.C. Agric. & Tech. State Univ., 386 F. Supp. 2d 618,
629—30 (M.D.N.C. 2005) (collecting cases); Olvera v. Edmundson,
151 F. Supp. 2d 700, 705 (W.D.N.C. 2001) (“Because a wrongful death
claim could compensate Plaintiff for the same injuries (death) as
the

state

constitutional

law

claim,

the

latter

must

be

dismissed.”).
Accordingly, a state-law remedy is not inadequate simply
because the plaintiff must assert his claim against a public
official in his individual capacity, rather than against the State.
See Rousselo v. Starling, 128 N.C. App. 439, 448, 495 S.E.2d 725,
731 (1998) (holding that claims against a highway patrolman in his
individual

capacity

provided

adequate

state-law

remedies

to

preclude direct constitutional claims because “Corum did not hold
that there had to be a remedy against the State of North Carolina
in order to foreclose a direct constitutional claim.”); Phillips
v. Gray, 163 N.C. App. 52, 57–58, 592 S.E.2d 229, 233 (2004)
(affirming summary judgment on a plaintiff’s state constitutional
claim where the plaintiff also had a common law wrongful discharge
19

claim against a sheriff in his individual capacity); Johnson v.
Causey, No. COA09-1712, 701 S.E.2d 404, 2010 WL 4288511, at *10
(N.C. Ct. App. Nov. 2, 2010) (unpublished table opinion) (holding
that claims against a deputy sheriff in his individual capacity
provided an adequate state-law remedy to preclude a constitutional
claim against a sheriff in his official capacity). 14

This is true

even if the plaintiff’s burden of proof on his state-law claim may
be

different,

or

if

the

claim

may

be

subject

to

affirmative defenses, like public official immunity.

additional
See Debaun

v. Duszaj, --- N.C. App. ---, 767 S.E.2d 353, 357 (2014) (“[T]he
fact that plaintiff must overcome the affirmative defense of public
officer immunity to succeed on his tort claims does not negate
their adequacy as a remedy.”); Rousselo, 128 N.C. App. at 448–49,
495 S.E.2d at 731–32 (concluding that a common law trespass to
chattels claim was not inadequate “merely because [it] might
require more of” the plaintiff than a constitutional claim for
unlawful search).

Finally, a state-law remedy is not inadequate

simply because a plaintiff failed to comply with a procedural
hurdle, such as a statute of limitations.

See Craig ex rel. Craig

v. New Hanover Cty. Bd. of Educ., 363 N.C. 334, 340, 678 S.E.2d

14

Unpublished opinions of the North Carolina Court of Appeals are not
precedential but are cited for the persuasive value of their reasoning.
See In re Garvey, --- N.C. App. ---, 772 S.E.2d 747, 751 n.3 (2015)
(“[W]hile an unpublished opinion from a prior panel of this Court with
substantially similar facts may be persuasive on appeal, it nonetheless
carries no binding precedential weight.”) (citations omitted).

20

351, 355–56 (2009); Wilkins v. Good, No. Civ 4:98CV233, 1999 WL
3320960, at *8 (W.D.N.C. Jul. 29, 1999).
Here, Plaintiffs allege claims for obstruction of justice,
malicious prosecution, and negligent supervision under the North
Carolina

common

law.

Plaintiffs

argue

that

these

state-law

remedies are inadequate to address their injuries because they are
barred from bringing two of these claims against the City under
the doctrine of sovereign immunity. 15

True, a state-law remedy

cannot be adequate when it is “entirely precluded by the doctrine
of sovereign immunity.”
356–57. 16

Craig, 363 N.C. at 342, 678 S.E.2d at

If Plaintiffs’ claims against the City were the only

means of redressing their alleged injuries under state law, then
a direct constitutional claim might be appropriate.

But here,

North Carolina law provides numerous potential remedies for the
injuries

alleged

by

Plaintiffs,

including

claims

against

the

15

See supra Part II.B (dismissing Plaintiffs’ malicious prosecution and
negligent supervision claims against the City). Plaintiffs concede that
their obstruction of justice claim against the City is derivative of the
same claim against the officers, and thus did not oppose summary judgment
for the City on that claim. (Doc. 57 at 3—4.) As a result, the court
need not consider whether this claim would also be barred by sovereign
immunity.
16

The plaintiff in Craig also brought a negligent supervision claim
against a state employee in her individual capacity, but this claim was
dismissed early in the litigation and was not appealed. 363 N.C. at 335
& n.2, 678 S.E.2d at & 353 n.2.
Although the court held that the
plaintiff’s claims against the State did not provide an adequate statelaw remedy, it did not directly address whether the plaintiff’s claim
against the employee might provide such an adequate state-law remedy.

21

Officer Defendants in their individual capacities.

In fact,

Plaintiffs’ common law malicious prosecution claim is currently
proceeding to trial against most of the Officer Defendants in their
individual capacities. 17

Thus, Plaintiffs are not entitled to

bring a direct constitutional claim in this case.
This court considered a similar situation in Edwards v. City
of Concord, 827 F. Supp. 2d 517 (M.D.N.C. 2011).

In Edwards, a

tow truck operator sued a municipal police department after a
police

officer

wrongfully

accused

him

of

stealing

a

car

forcefully restrained him, seriously injuring his shoulder.
at 518—19.

and
Id.

The plaintiff brought claims for false arrest and

assault and battery against the officer in his individual capacity
and a constitutional claim against the officer in his official

17

As the City points out (see Doc. 63 at 8-9), Plaintiffs’ interests
could also be protected through other common law claims, such as trespass
to chattel and false imprisonment. See Rousselo, 128 N.C. App. at 448–
49, 495 S.E.2d at 731 (“[T]he common law action for trespass to chattel
provides a remedy for an unlawful search.”); Alt v. Parker, 112 N.C.
App. 307, 317–18, 435 S.E.2d 773, 779 (1993) (“[P]laintiff’s claim for
deprivation of due process is an attempt to vindicate his right to be
free from restraint, which is the same interest protected by his common
law claim for false imprisonment.
Plaintiff’s claim for false
imprisonment, if successful, would have compensated him for the same
injury he claims in his direct constitutional action.”). Such statelaw remedies are not rendered inadequate merely because Plaintiffs failed
to pursue them within the applicable statute of limitations. See Craig,
363 N.C. at 340, 678 S.E.2d at 355–56; Wilkins v. Good, No. Civ.
4:98CV233, 1999 WL 33320960, at *8 (W.D.N.C. July 29, 1999) (dismissing
direct constitutional claims when the plaintiff failed to file adequate
common law actions within the applicable statute of limitations); see
also LendingTree, LLC v. Anderson, 228 N.C. App. 403, 415, 747 S.E.2d
292, 301 (2013) (stating that actions for trespass to chattels are
subject to a three-year statute of limitations in North Carolina) (citing
N.C. Gen. Stat. § 1–52.).

22

capacity.

Id. at 518.

Assuming that any direct claim against the

officer in his official capacity would be barred by immunity, id.
at 522, this court nevertheless held that the plaintiff’s claims
against the officer in his individual capacity provided adequate
state-law remedies for his injuries, id. at 524.

In so holding,

this court rejected the argument that the plaintiff’s remaining
claims were inadequate simply because they had to be asserted
against

the

officer

individually

rather

against

than

the

municipality, or because those claims would require the plaintiff
to prove that the officer acted maliciously.

Id. at 522–24.

In sum, Plaintiffs’ various common law claims against the
Officer Defendants in their individual capacities provide adequate
state-law

remedies

for

their

alleged

injuries.

Although

Plaintiffs were not ultimately successful on two such claims, this
fact

alone

does

not

constitutional claim.
351 at 355–56.

permit

Plaintiffs

to

bring

a

direct

See Craig, 363 N.C. at 339–340, 678 S.E.2d

As a result, summary judgment will be entered in

favor of the City on Plaintiffs’ state constitutional claims.
F.

Expert Testimony of Ann C. Hamlin

Finally, Plaintiffs move to exclude the expert testimony of
Ann C. Hamlin. Plaintiffs claim that Defendants failed to disclose
Hamlin in a timely manner 18 and did not produce an expert report

18

In their initial brief, Plaintiffs rely only on the disclosure and

23

for her in accordance with Rule 26(a)(2) of the Federal Rules of
Civil Procedure.
Pursuant to the court’s initial scheduling order in this case,
Defendants were to produce any “[r]eports from retained experts
under Rule 26(a)(2)” by March 16, 2015, and to complete all
discovery by May 8, 2015.
the

parties’

proposed

(Doc. 32 at 3; Doc. 33 (order approving

Rule

26(f)

report).)

The

court

later

extended the discovery deadline to July 7, 2015, by consent of the
parties.

Trial was scheduled for April 4, 2016.

(Doc. 35.)

On June 17, 2015, Defendants informed Plaintiffs that they
planned to call Hamlin, a Forensic Scientist Manager at the North
Carolina State Crime Laboratory, as an expert witness at trial.
(Doc. 39-1.)

Defendants disclosed that Hamlin

is expected to testify that it is not uncommon for
samples of substances which were believed to be illegal
controlled substances based on positive field testing to
test negative for controlled substances under laboratory
conditions at the N.C. State Crime Laboratory. She is
further expected to testify that many substances which
are not illegal controlled substances may produce color
report requirements of Rule 26(a)(2)(B) and this court’s scheduling
orders. (See Doc. 40.) In their reply brief, however, Plaintiffs argue
for the first time that Defendants failed to comply with other disclosure
requirements, including Rule 26(a)(2)(C) and Local Rule 26.1(c). (Doc.
55 at 6–8.)
Per Local Rule 7.3(h), “A reply brief is limited to
discussion of matters newly raised in the response.” See also Tyndall
v. Maynor, 288 F.R.D. 103, 108 (M.D.N.C. 2013) (“Members of this Court,
however, have consistently held that ‘[r]eply briefs . . . may not inject
new grounds . . . [and that an] argument [that] was not contained in the
main brief . . . is not before the Court.’”) (quoting Triad Int’l Maint.
Corp. v. Aim Aviation, Inc., 473 F. Supp. 2d 666, 670 n.1 (M.D.N.C.
2006)).
The City’s response did not raise the issue of disclosure
requirements under Federal Rule 26(a)(2)(C) or Local Rule 26.1(c), and
the court will therefore not consider Plaintiffs’ newly raised grounds.

24

changes in field test kit materials which may be
interpreted as positive findings by law enforcement
officers due to their subjective appreciation of color
changes in the testing materials.
(Id. at 2.)

Defendants did not produce a Rule 26(a)(2)(B) report

for Hamlin.

Plaintiffs took Hamlin’s deposition on July 7, 2015.

(Doc. 59.)
Rule 26(a) requires a party relying on expert testimony to
disclose the expert’s identity.

In addition, if the expert is

“one retained or specially employed to provide expert testimony in
the case,” the party offering the expert must provide a detailed
written report containing various categories of information about
the expert and her opinions.

Fed. R. Civ. P. 26(a)(2)(B).

Failure

to provide the information required by Rule 26(a) in a timely
fashion may result in exclusion of the expert’s testimony.

See

Fed. R. Civ. P. 37(c)(1); Southern States Rack & Fixture, Inc. v.
Sherwin-Williams Co., 318 F.3d 592, 596–97 (4th Cir. 2003).
The parties disagree as to the proper test for determining
whether Hamlin qualifies as a “retained” expert subject to the
report requirement in Rule 26(a)(2)(B).

Plaintiffs cite authority

for the proposition that an expert is retained when she has no
personal

knowledge

underlying

dispute,

of

or
apart

involvement
from

her

with

the

facts

participation

of
in

the
the

litigation. See Stuart v. Loomis, No. 1:11-CV-804, 2014 WL 204214,
at *2 (M.D.N.C. Jan. 17, 2014) (concluding that expert witnesses

25

were retained for the purposes of Rule 26(a)(2)(B) because they
“are not and were never involved in the litigation”).

Defendants,

by contrast, cite authority for the position that an expert is
retained when she receives compensation from the offering party in
exchange for her services.

See, e.g., Downey v. Bob’s Discount

Furniture Holdings, Inc., 633 F.3d 1, 6 (1st Cir. 2011) (concluding
that an exterminator hired by the plaintiffs to eradicate bed bugs
from furniture sold by the defendants was not a retained expert in
subsequent litigation because he received no compensation and was
testifying from firsthand knowledge of the facts); BorgWarner,
Inc. v. Honeywell Intern., Inc., 750 F. Supp. 2d 596, 604–05
(W.D.N.C. 2010) (concluding that an expert witness was retained
when the defendant paid the witness $105,000 to develop a tool for
the purpose of using the expert’s testimony about that tool in a
preexisting patent dispute); McGuire v. Contemporary Developers,
Inc., No. 99-CV-172, 2000 WL 33654984, at *1 (W.D. Va. May 24,
2000) (concluding that a municipal property inspector was not a
retained expert in a dispute between a landlord and tenant when
the inspector volunteered to testify and there was no evidence
that the tenant had “any agreement with the expert concerning her
participation” in the case).
The
qualifies

court
as

finds
a

that,

retained

while
expert

it
for

is

unlikely

the

that

purposes

of

Hamlin
Rule

26(a)(2)(B), the question need not be definitively answered here.
26

That is because even when a party fails to “provide information or
identify a witness as required by Rule 26(a),” the exclusion that
ordinarily prevails is subject to an exception where “the failure
was substantially justified or is harmless.”
37(c)(1).

Fed. R. Civ. P.

District courts have “broad discretion to determine

whether a nondisclosure of evidence is substantially justified or
harmless.”
has

Southern States, 318 F.3d at 597.

articulated

five

factors

the

court

The Fourth Circuit

should

consider

when

exercising this discretion:
(1) the surprise to the party against whom the evidence
would be offered; (2) the ability of that party to cure
the surprise; (3) the extent to which allowing the
evidence would disrupt the trial; (4) the importance of
the evidence; and (5) the nondisclosing party’s
explanation for its failure to disclose the evidence.
Id.

The first four factors primarily relate to the question of

harmlessness, while the fifth factor relates primarily to a showing
of substantial justification.

Id.

Here, the first and fourth factors indicate that Plaintiffs
suffered no harm from the manner in which Defendants disclosed
Hamlin.

Hamlin’s testimony relates to a central issue in this

case: whether the Officer Defendants mistakenly believed that they
had discovered controlled substances in Jackson’s home, or whether
they knowingly and intentionally conspired to search Jackson’s
home and prosecute him without just cause.

It should have been

obvious to Plaintiffs that Defendants would seek to offer evidence

27

– whether from the Officer Defendants, other police officers, or
employees of the State Crime Laboratory – to show that a reasonable
police officer could honestly believe a substance to be illegal
based on field testing, even if later laboratory testing shows
otherwise.

Plaintiffs could not have predicted the identities of

the exact witnesses called to establish this point, but they cannot
claim to be surprised by the content of Hamlin’s testimony.

And

although other witnesses could potentially offer testimony on this
issue, Hamlin’s testimony is particularly important because of her
experience and expertise in a laboratory setting.
The second and third factors also indicate that Plaintiffs
suffered no harm from the manner in which Defendants disclosed
Hamlin. 19

Defendants disclosed Hamlin on June 7, 2015, almost ten

months before the scheduled trial date in this case.
1.)

(Doc. 39-

Plaintiffs were permitted to take Hamlin’s deposition on July

6, 2015, before the close of discovery and almost nine months
before the trial date.

(Doc. 59.)

At her deposition, Hamlin

provided essentially all of the information required by Rule
26(a)(2)(B).
considered

(See id. at 7:9–25 (opinions and the facts Hamlin
in

(qualifications,

forming
prior

them),

10:22–12:9

testimony,

19

and

(same),

19:22–21:12

compensation),

21:18–20

Apart from the report requirement, the scheduling order in this case
did not set a deadline for the disclosure of experts that would encompass
those who were not retained. See Doc. 32 at 3. Absent a stipulation,
court order, or specific discovery request, experts must be disclosed
at least 90 days before trial. See Fed. R. Civ. P. 26(a)(2)(d)(i).

28

(basis

for

opinion),

testimony).)

39:21–23

(publications),

43:8–16

(prior

Plaintiffs complain that they were unable to solicit

rebuttal witnesses by the close of discovery, but they have not
identified any rebuttal witness they would call or moved to reopen
discovery in the six months since they took Hamlin’s deposition. 20
In sum, after considering the factors enumerated by the Fourth
Circuit,

the

Defendants’

court

concludes

disclosure

that

regarding

any

potential

Hamlin

was

error

in

harmless.

Consequently, the court need not decide whether she qualifies as
a retained expert for the purposes of Rule 26(a)(2)(B), or whether
Defendants’ conduct was substantially justified.
III. CONCLUSION
For the reasons stated,
IT IS THEREFORE ORDERED that the Officer Defendants’ motion
for partial summary judgment (Doc. 45) is GRANTED.
claims

against

PREJUDICE.

Defendant

Yount

are

hereby

All remaining

DISMISSED

WITH

In addition, Count III of the complaint is DISMISSED

WITH PREJUDICE as against all Defendants.
IT IS FURTHER ORDERED that the City’s motion for summary

20

Plaintiffs also complain that Defendants did not disclose Hamlin in
time for her opinions to be effectively addressed at summary judgment.
This argument is moot, as Defendants did not cite Hamlin’s testimony in
their motions for summary judgment. In fact, the only mention of Hamlin
in the parties’ summary judgment briefs comes from Plaintiffs.
(See
Doc. 57 at 8—9 (citing Hamlin’s testimony as evidence that the Officer
Defendants knew that they substances they found did not contain cocaine
or heroin).)

29

judgment (Doc. 53) is GRANTED.

All claims against the City are

hereby DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that Plaintiffs’ motion to exclude the
expert testimony of Ann C. Hamlin (Doc. 39) is DENIED.

/s/
Thomas D. Schroeder
United States District Judge
February 5, 2016

30