WALKER v. J.P. THOMAS & CO. INC. et al
Filing
51
MEMORANDUM OPINION AND ORDER signed by MAG/JUDGE JOE L. WEBSTER on 09/29/2015. For the reasons stated herein, IT IS HEREBY ORDERED that Plaintiff's motion to compel discovery (Docket Entry 35 ), motion to compel witness fees (D ocket Entry 42 ), and motion to supplement the Complaint (Docket Entry 37 ) are all DENIED. FURTHER that Defendants' motion for summary judgment (Docket Entry 45 ) be GRANTED and Plaintiff's motion for summary judgment (Docket Entry 29 ) be DENIED, and this action be DISMISSED WITH PREJUDICE. A Judgment dismissing this action will be entered contemporaneously with this Order.(Taylor, Abby)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
RUSSELL F.
W,{LI3R,
Plaintiff,
V
J.P. THOM,{S
& CO., INC., et aI.,
Defendants
)
)
)
)
)
)
)
)
)
1,:1,4CY738
MEMORANDUM OPINION AND ORDER OF
UNITED STATES MAGISTRATE JUDGE
This mattet is before the Court upon Plaintiff Russell F. Walker's motion fot
to compel discovery @ocket Entry
35),
motion to supplement the complaint (Docket Entty 37), motion to compel witness
fees
srrrnmary judgment (Docket E.rtry 29), motion
(Docket E.rtty 42), and Defendants Town of '{.berdeen, North Caroltna and Officer JJ
Smith's motion
for
summary judgment (Docket Entry
45). All motions
are ripe fot
disposition.l For the reasons stated herein, the Court will gtant Defendants' motion for
summary judgment and deny the temaining motions.
I. Bacþround
Plaintiff, pro
se,
filed this action against Defendants J.P. Thomas
&
Company, Inc
("Thomas Tire"), the Town of Ä.berdeen, Notth Catolina, and Officer JJ. Smith ("Offìcer
Smith") alleging a violation of his civil rights due to the wtongful issuance of citations.
I
By Ordet of Reference, this mâtter was referred to the Undersigned to conduct all proceedings in
this case pursuant 28 U.S.C. $ 636(c). (Docket Enry 34.)
I
(Complaint, Docket Entty
2.)
Âccotding to the Complaint, on May 23, 201.4, Plaintiff
backed his vehicle into a parked vehicle
in the patking lot of Thomas Ti-te. (Id. n l.)
Plaintiff inspected the other vehicle, did not notice any other darnage, and left the
scene.
(Id.) Ãn employee of Thomas Tire called the Aberdeen Police Department"in an attempt to
insute that Thomas's customer was paid
fot any damage to its customer's car." Qd.n 9.)
Aftet Plaintiff atdved home, he received a phone call from Officer Smith who informed
Plaintiff that he would be charged for violation of the "Hit-and-Run" statute after leaving
the scene of an accident without noti$ring the owner of the other vehicle. (Id.
11 10.)
Plaintiff immediately returned to Thomas Tite and gave Offìcer Smith his information,
including Plaintiffls "driver's license number, date of birth, [and] insutance details . . . ." (Id.
ï
11.) Officer Smith charged Plaintiff with two misdemeanors: N.C. Gen. Stat. $ 20-166 and
N.C. Gen. Stat. S 20-154. (Id.11 1,2.) Plaintiff alleges that "[t]he issuing of citation was a
violation of the Civil Rights of the plaintiff as there was no conduct which could be
violation of
p^tt."
(Id.
Noth
a
Caroltna law as there was no willfulness nor mens rea on fPlaintiffs]
n 1,5.) Plaintiff
seeks monetary damages, seeks
to enjoin the Âberdeen Police
Department ftom issuing any futher citations undet N.C. Gen. Stat. $ 20-1.66, and seeks to
declare this statute unconstitutional as a violation
States
of the Fifth Amendment of the United
Constitution. Qtl. 1l1l 1.7-1,9.) He also requests that the Coutt exetcise pendant
judsdiction over his state law claims. Qd.1120.)
On December 8,
12(bX1) and 12þ)(6)
201,4, Thomas
Tke filed a motion to dismiss pursuant to
Rules
of the Federal Rules of Civil Procedure. (Docket Entty 1,7.)
The
it.
(See
Court theteafter gtanted Thomas Tire's motion dismissing PlaintifÎs claims against
2
Otder dated Jan. 8,201,5, Docket Etrtty 26.) OnJanuary 20,2015, Plaintiff filed the pending
motion for summary judgment. (Docket E.ttty 29.) Plarnttff later fìled the pending motions
to compel discovery, to supplement the complaint, and to compel witness fees. @ocket
Entdes 35, 37, 42.) On July 15, 2015, Defendants filed a motion fot summary judgment.
(Docket Entry 45.)
II.
Discussion
Summary judgment is apptopriate when thete exists no genuine issue
and the moving party is entided to judgment as a matter of
Zabodnick u.
of material fact
law. Fed. R. Civ. P. 56(c);
Int'l Bas. Mach¡. Corþ., 135 F.3d 91.'1,, 91.3 (4th Cir. 1997). The patty seeking
summaty judgment beats the initial burden
of coming forwatd and demonsttating the
absence of a genuine issue of matetial fact. Tenkin u. Frederick Coanfl Comm'rs, 945 tr.2d 716,
71,8 (4th C1r. 1991) (citing Celotex u. CatreÍt,477 U.5.31,7,323
(1986). Once the moving
patq has met its butden, the non-moving party must then affitr,rrau.vely demonstrate that
thete is a genuine issue of matedal fact which requires tÅal. Mat¡ushita Elec. Indas. Co. Ltd.
Zenith Radio Corþ., 475 U.S. 574, 587 (1986). Thete
u.
is no issue for tdal unless there is
sufficient evidence favoting the non-moving p^fty for a fact finder to return a verdict for
that party. Ander¡on
u.
Liber'fl I-^obþt, 1nc.,477 U.5.242,250 (1,986); Slluia Deu. Corp. u. Caluert
Coanfl, Md.,48 F.3d 810, 81.7 (4th Cir. 1995). Thus, the movingpaLtq cant:,ear his burden
either by ptesenting affrmative evidence or by demonsttating that the non-moving party's
evidence is insuffìcient to establish his claim. Celotex,477 U.S. at331, (Btennan, dissenting).
When making the summary judgment determination, the court must view the evidence, and
all justifiable inferences ftom the evidence, in the light most favorable to the non-moving
J
p^try. Zahodnit'k,135 F.3d at 91.3; Haþerin u. Abam¡
Tech. Corp., 128 F.3d'191,, 1,96
(4th Cir.
1,997).
Moreover, "once the moving patty has met his butden, the nonmoving party must
come forwatd with some evidence beyond the mere allegations contained in the pleadings to
show there is a genuine issue
fot tital."
Baber u. HoQ. Corp. of Am.,977
F.2d872,874-75 (4th
Ctr. 1,992). The non-moving patry may not rely on beliefs, conjectute, speculation, or
conclusory allegations to defeat a motion for summary judgment.
Id.
The non-movant's
proof must meet the substantive evidentiary standard of ptoof that would apply at a tnal on
the merits. Mitchell u. Data Gen. Corp., 12 tr.3d 131,0, 1,31,6 (4th C1r. 1.993), modified on other
grounds, Sto,ke¡ u. Il/estinghoa¡e Sauannah Nuer Co., 420, 429-30 (4th Cit. 2000); DeL¿on u. St.
Jo:eph Ho,p., Inc., 87
1.
F.2d'',t229, 1233 n.7 (4th Cir. 1989).
Defendants' Motior¿ to Di¡ mi¡¡
,{.. Officer Smith
Defendant Smith flrst asserts that he
is entitled to
surnmary judgment
in
his
individual capacity based upon qualifìed immunity. The Coutt must considet two questions
when ruling on qualified immunity' "(1) whether a constitutional or statutory dght would
have been violated on the facts alleged by the plaintiff, anð (2) whether the dght assetted was
clearþ established at the time of the alleged violation." Ander¡on a. Caldwell Cnry. Sherif :
Office,524 F.
App'* 854, 860 (4th Cir. 2013) (citing Saøùer u. Kat7,533 U.S. 1,94,200
(2001)).
The Supreme Cout has held that qualified immunity protects "^f1 but the plainly
incompetent or those who knowingly violate the
(1986). Thus,
if
law." Mallry
u. Brigs,475 U.S. 335,341
an offìcial's conduct is "objectionably teasonable," qualified immunity
4
applies. Torchinskl u. Siwinski,942 F.2d 257,261, (4th Cir. 1,991). Moreover, the Fourth
Circuit in ComeT u. Atkia¡ states that "qualified immunity ptotects law officets ftom 'bad
guesses
in
gray atea.s,' and
it
ensures that they may be held petsonally liable only 'for
transgressing bdght lines."' GomeT u. Atkins, 296 F.3d 253, 261 (4th
Cir. 2002) (citing
Maùariello u. Sumnery 973 tr.2d 295,298 (4th Cu.1,992)). The burden of ptoof and persuasion
äes
with the defendant official under a clatm of qualified immunity. Il/ilson
u.
Kittoe,337 F.3d
392,397 (4th Cir. 2003).
Defendant Smith asserts that he is entitled to qualified immunity based upon the
existence of probable cause at the time the citation was issued. Under Notth Catolina law,
"þ]tobable cause is defìned as the existence of facts and circumstances known to the
decision maker which would induce
a
reasonable person
to
commence a prosecution."
Mafün u. Parker, 150 N.C. App. 179, 182, 563 S.E.2d 21,6, 21,8 (2002) (citation omitted).
Smith issued Plaintiff a citatton under North Catolina's hit-and-run statute, N.C. Gen. Stat.
$ 20-166,
which provides in patt:
The drivet of any vehicle, when the ddvet knows or reasonably should know
that the vehicle which the driver is operating is involved in a ctash which
results:
(1)
Q)
Only in damage to property; or
In injury ot death to any person, but only if the operator of the
vehicle did not know and did not have reason to know of the
death or injury;
shall immediately stop the vehicle at the scene of the crash. If the crash is a
tepottable crash, the dtiver shall temain with the vehicle at the scerìe of the
ctash until a law enforcement officer completes the investigation of the crash
or authorizes the driver to leave and the vehicle to be removed, unless
remaining at the scene places the ddvet or others at signifìcant risk of injury.
5
N.C. Gen. Stat. $ 20-1,66(c). ,\dditionally, for damaged property to a parked ot unattended
vehicle, "the ddver shall furnish the þsted]
officer, or, in the alternative, .
information
. shall immediately
to the nearest avatlable
peace
place a paper-wtiting containing the
informatio n in a conspicuous place upon or in the damaged vehicle." N.C. Gen. Stat. $ 201,66(c1). Based upon the uncontrovetted evidence
in the tecotd, the Court concludes that
Smith had probable cause to issue the citation to Plaintiff, and his actions were, at minimum,
objectionably reasonable undet the circumstances. Plaintiff admits that he backed into
patked vehicle which caused damage to the vehicle, and he left the scene
without reporting
issuance
a
of the incident
it to law enforcement or leaving a note on the vehicle. Thus, Smith's
of a citatton was based upon probable
cause, and his actions were objectionably
teasonable entitling him to qualified immunity.
Plaintiff also asserts state law claims fot abuse of process, negligent infliction of
emotional distress, intentional infliction of emotion distress, and outrage.2 Smith contends
that Plaintiffls claims should be bared under the docrine of public immunity. Under this
doctrine, "a public offìcial is fgenerally] immune ftom personal liability for mete negligence
in the perfotmance of his duties, but he is not shielded from liability if his alleged actions
were corrupt
ot
malicious or
Schloxberg u. Goins,
omitted.) "\X/here
if
he acted outside and beyond the scope of his duties."
141 N.C. Åpp. 436, 445, 540 S.E.2d 49, 56 (2000) (intemal quotation
a complaint offers
no allegations from which corruption ot malice might
North Carohna does not rccogrize causes of action under the tort of outrage. Bargex u. Busby, L42
N.C. ,A.pp. 393,402-03,544 S.E .2d 4,8-9 Q001) (citing BeaslE u. Ilatìonal Sauings Lìfe Ins. C0.,75 N.C.
,\pp. 104, 330 S.E.2d 207(1,985) ("$Øe agree that the tort of outrage has not been tecognized in
North Carolina.").
2
6
be inferred, the plaintiff has failed to show an essential [element] of his claim, and summary
judgment is apptoptiate." Campbell
u.
Anderson, 156 N.C.
App.
371., 377 , 576 S.F,.2d
726,730
(2003). Thus, to survive surnmary judgment, Plaintiff must make "aþrirnafatzT showing that
the defendant-official's tortious conduct falls within one of the immunity exceptionsf.]"
Eppt
u.
Dake Uniu., Inc., 1.22 N.C. App. 198, 205,468 S.E.2d 846, 852 (1,996) (citing
Þ-aytteuille Srate Uniu.,102
L.ac'us
u.
N.C. App. 522,526,402 S.E.2d 862,865 (1991).
Based upon the evidence viewed
in the light most favorable to Plaintiff, the Court
finds that there is no genuine issue of matenal fact
^s
to whether Smith acted with malice or
corruption. Smith's acts after receiving notifìcation of Plaintiffs conduct wete in fact
teasonable, particulatly in light of PlaintifPs concession that he backed into a parked vehicle,
that thete was damage to the patked vehicle,3 and that he left the scene without leaving
contact information on the vehicle
Docket Entty 45-1,.) Even
if
ot noti$ring Thomas Tire. (Pl.'s Dep.
the Court were to conclude, which
it
^t
1.4, 18, 22,
does not, that Smith's
conduct was negligent, Plaintiffs complaint fails to allege facts to infer corruption or malice.
Thus, summary judgment is appropdate.
B. Town of Âberdeen
,\lbeit unclear, Plaintiff also appears to assert claims against the Town of ,\berdeen
and Officer Smith in his official capacity.a Defendants seek a favonble surnmary judgment
ruling as to these claims by asserting that Plaintiff fails to allege unconstitutional policies,
3 Plaintiff states that he originally did not see the damage done to his cat nor the parked vehicle, but
concedes that there is no drspute as to the damage incurred. (Pl.'s Dep. at 18, Docket Entry 45-1.)
a Plaintiff s official capacity clatrn against Officet Smith is redundant and therefote dismis sed. Cantt
u.ll/biraker,203F. S,rpp. 2d503,508 (X4.D.N.C.2002) ajld,57 F.,\pp'x 1,41, (4thCtr.2003).
7
customs or practices by the ,\berdeen Police Departments and its officers. The Court
agrees. "Official liability will attach under S 1983 only
if executjon of a govetnment's policy
or custom, whether made by its lawmakers or by those whose edicts or acts may fai-rly be
said to represent oFfìcial policy, inflicts the
injury." Id. at 509 (intemal quotations omitted).
Section 1983 official capacrty claims may not be based upon the theory of re:pondeat superior.
lf,/ellingon u. Daniels,7I7 F.2d 932, 935 (4th
alleges one incident; there
practices
of the Town of
Cir. 1983). Here, Plaintiffs Complaint only
is no evidence of any unconstitutional policies, customs, or
Ä.berdeen
or its police depanment. Thus, surnmarT judgment
should be gtanted in favot of Defendants.
Plaintzfs Motions
In his motion for sufiunary
judgment, Plaintiff presents thtee "Statement of
Questions," but addresses only one argument that he was not guilty o[ violating the hit-and-
run statute for several reasons: (1) he went back to the scefle of the incident within 48 hours,
Q) h, gave Officer Smith all of his contact infotmation, including insurance information,
and (3) Thomas Tire and the car ov/ner had a l¡atIee/batlor relationship. (Pl.'s Pet. at
4,
Docket Entty 29.) -Àlthough not fully clea4 Plaintiff appears to argue that thete is no
genuine issue of material fact as to whether he violated N.C. Gen. Stat. $ 20-166, thus he is
entitled to summary judgment on all claims. To this extent, it is unclear what Plaintiff seeks
through this motion as he concedes that all chatges have been dismissed against him. (Itl.n
15.) Moreover, Plaintiff misinterprets N.C. Gen. Stat. S 20-166 to
suggest that he did not
violate it because he came back to the scene of this incident within 48 hours, complied with
Offìcer Smith, and that the "bailment" status of the patked vehicle placed responsibility of
8
the car on Thomas Tire, which akeady had PlaintifPs contact information. The plain
language
of the statute requires Plaintiff to immediately furnish specifìc information to "the
nearest available peace officer,"
or "place a paper-writing containing the infotmation in
a
conspicuous place upon or in the damaged vehicle." N.C. Gen. Stat. $ 20-166(c1). To the
extent the statute allows repoting of a collision with an unattended vehicle within 48 hours
of the incident, it does so only after
a ddver leaves a note
on the damaged vehicle.
a\'o N.C. Gen. Stat. S 20-166.1(c) (The report may be made otally
See
id.;
see
ot in wtiting, must be
within 48 hours of the accident . . . ."). Here, it is clear, and Plaintiff admits, that he left the
scene
of the incident without placing a note on the vehicle, and provided
contact
information only after his interaction with Officet Smith. Thus, Plaintiffls allegations ate
simply without metit.s
The Court also denies Plaintiffls motions to compel discovery. Plaintiff seeks a
discovery order from the Court commanding the Town
of Àberdeen to ptovide Officer
Smith's personnel record including psychiatric reports. (Docket Er,try 35.) Plaintiff has not
indicated why he seeks this information. Courts have recogrttzed strong policy concerns
regarding public disclosure of petsonnel files; here, Plaintiff has not shown how these files
or reports are "clearly relevant," or that "the need for disclosure is compelling" to the
case.
Plaintiff does not propedy addtess (in his surnmary iudgment motion) whether N.C. Gen. Stat. $
20-166 is a violation of his Fifth Ämendment right to be ftee from self-incriminaûon, thus the Court
need not address this issue any futher. In any event, the Court notes that the Supreme Court, the
Fourth Circuit and the North Carohna Court of ,\ppeals pteviously reiected this argument undet
similar hit-and-run statutes. Sæ Caliþrniø u. B1ers,402 U.S. 424, 432 (1,971) ('Disclosure of name and
address is an essentially neutral act. Sühatever the collateral consequences of disclosing name and
address, the statutory purpose is to implement the state police powef to regulate use of motof
vehicles."); Burrell u. Virginia, 395 F'. 3d 508, 51,3 (4th Cncuit) (rejecting similar claims undet
Virginia's hit-and-run statute); In re A.N.C., Jr.,225 N.C. Àpp. 3I5, 323,750 S.E.2d 835, 841. reuiew
denied,367 N.C. 269,752 S.E.2d 151, Q01,3) (rejecting Fifth Ä.mendment challenge to N.C. Gen. Stat.
s
s 20-166.).
9
Janu u. Peter Pan Tran¡it Mgnt., lzr:, No. 5:97-CY-747-BO-1.,
1,999
WI'
735173,
ú
x"1.1
(E,.D.N.C. Jan.20,1999) (unpublished); ve al¡o Brown a. SLS Int'/, Inc., No. 3:05 CV 203,2006
lxuT,3694535, at x1 flX/.D.N.C. Dec. 1,3,2006) (unpublished)
þlaintiffs need fot disclosute
not compelling). r\s to Plaintiffs motion to compel witness fees, Plaintiff cites no authodty
for his argument. Other courts addressing this issue have routinely denied such a request.
See Delehant
u. United Stateq No. 3:10-CV-178-ÂC,201,2 \XlL 6455808, at x3 (D. Ot. Dec. 13,
201,2) (denying request
F.R.D. 211, 273
Pennslluania
k
p.
fot witness fees to
^
p^rq plaintiffl; Gìllan
u.
A. Sfuman, Inc., 31
Alaska 1,962) (disallowing witness fees fot party v/itnesses); Pic,king
u.
C0.,11 F.R.D. 7'1.,72 (À4.D. Pa. 1951) (denying a party's request for witness
fees and mileage). Hete, the Court also denies Plaintiffs request. Lastly, the Coutt denies
Plaintiffs motion to supplement the Complaint. (Docket Entty 37.) Plaintiff
add 42 U.S.C. S 19S5 as applied to J.P. Thomas
& Co., Inc. This defendant
seeks only
to
has been akeady
been dismissed from this action. Plaintiffs amendment would be futile
in that the
allegations in Plaintiffs Complaint fail to allege avaltd S 1985 claim. Johnson u. OroweatFoods
C0.,785 F.2d 503,510 (4th Cir. 1936) (Amendment should be denied as futile "when the
proposed amendment is cleatly insufficient ot ftivolous on its face.").
III.
Conclusion
For the reasons stated herein,
IT IS HEREBY ORDERED
that PlaintifFs motion
to compel discovery (Docket Entty 35), motion to compel witness fees (DocketEntty
and motion to supplement the Complaint (Docket Entry 37) arc all
10
DENIED.
42),
IT IS FURTHER ORDERED that Defendants'
motion for summary judgment
@ocket E.rtty 45) be GRANTED and Plaintiffs morion for summary judgment (Docket
Ent y 29) be DENIED, and this action be DISMISSED WITH PREJUDICE.
A Judgment
dismissing this action
will be enteted
contemporaneously
with this
Otdet
SO ORDERED. This the 29th day of Septembe\201.5.
U
11.
L. nØebstet
States Magisttate Judge
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