VANG v. ASHBY et al
Filing
55
MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE L. PATRICK AULD signed on 7/17/2020. RECOMMENDED that Defendant McClattie's summary judgment motion (Docket Entry 42 ) be granted and that Plaintiff's summary judgment motion (Docket Entry 49 ) be denied. (Daniel, J)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
KENG VANG,
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
LAUREN ASHBY, et al.,
Defendants.
1:18cv565
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
This
case
comes
before
the
Court
on
Defendant
Shannon
McClattie (“Defendant McClattie”)’s Motion for Summary Judgment
(Docket Entry 42) and Plaintiff’s Motion for Summary Judgment
(Docket Entry 49).
For the reasons that follow, the Court should
grant Defendant McClattie’s summary judgment motion and should deny
Plaintiff’s summary judgment motion.
BACKGROUND
I. Procedural History
Keng Vang (the “Plaintiff”), commenced this action in forma
pauperis
pursuant
to
42
U.S.C.
§
1983
in
connection
with
Defendants’ removal of his children from his home subsequent to a
child abuse investigation, in violation of the “4th, 5th, and 14th
[A]mendments” and “NC DHHS policy.”
(Docket Entry 2 at 4.)1
1
Citations to Docket Entry pages utilize the CM/ECF footer’s
pagination.
In addition, in quoting Plaintiff’s filings, this
Recommendation applies standard capitalization conventions for ease
(continued...)
Case 1:18-cv-00565-WO-LPA Document 55 Filed 07/17/20 Page 1 of 16
Plaintiff pursued his claims against Defendants in both their
individual and official capacities.
(See id. at 2-3.)
At the
screening stage, the undersigned recommended dismissal of all
claims against Lauren Ashby (“Ms. Ashby”) and Detective Ryan
Barkley
(Docket
Complaint’s
Entry
3
“allegation
at
5),
that
and
further
[Defendant]
found
that
McClattie
the
entered
[Plaintiff’s] home without permission or a warrant [wa]s sufficient
to state a claim against her for violating [Plaintiff’s] rights
. . . [and] allow[ed] Plaintiff’s case against [her] to proceed
. . . as to that claim only” (id. at 3).
The Honorable William L.
Osteen, Jr., United States District Court Judge, adopted that
recommendation.
(Docket Entry 7.)
As a result, the surviving
claim in the Complaint concerns Defendant McClattie, whom the
Complaint
identifies
as
a
“Supervisor”
Department of Social Services (the “DSS”).
In
response,
Defendant
McClattie
for
the
County
(Docket Entry 2 at 3.)
answered,
improper actions and asserting immunity defenses.
12.)
Rowan
denying
any
(Docket Entry
Following a six-month period for discovery (see, e.g., Text
Order dated May 30, 2019), Defendant McClattie filed her summary
judgment motion (see Docket Entry 42; see also Docket Entry 43
(summary judgment brief); Docket Entry 43-1 (Affidavit of Defendant
McClattie); Docket Entry 43-2 (Affidavit of Ms. Ashby); Docket
1
(...continued)
of reading.
2
Case 1:18-cv-00565-WO-LPA Document 55 Filed 07/17/20 Page 2 of 16
Entry 43-3 (Affidavit of Cynthia Dry); Docket Entry 43-4 (Affidavit
of Detective Cody Trexler); Docket Entry 43-5 (Deposition of
Plaintiff)).2
Plaintiff responded (Docket Entry 51) and Defendant
McClattie replied (Docket Entry 53).
his
summary
judgment
motion
In addition, Plaintiff filed
(Docket
Entry
49)
and
Defendant
McClattie responded (Docket Entry 50).
II. Factual History
As relevant to the summary judgment motions, the record
reflects the following:
A.
Plaintiff’s Allegations
According to Plaintiff’s Complaint, “the events giving rise to
[his] claim arose . . . [a]t [his] home . . . .
happened on . . . 03/09/2018.”
[The v]iolation
(Docket Entry 2 at 4.)
More
specifically as to Defendant McClattie, the Complaint alleges that
the following occurred on March 9, 2018:
[Defendant] McClattie in armo[red] vest led Rowan Police
Department, five officers to be exact, also in body
armo[]r with guns and tasers[, ] to the residen[ce] of
[Plaintiff] without a warrant or court order and that
evening[,
]
apprehended
[Plaintiff’s
children].
[Defendant] McClattie and [an o]fficer forced their way
in without approval from [a j]udge or [m]agistrate under
2
Defendant McClattie filed her summary judgment brief and
related attachments in redacted form. (See Docket Entries 43, 431, 43-2, 43-3, 43-4, 43-5.) She also filed a motion to seal along
with sealed unredacted versions of the summary judgment brief and
related attachments. (See Docket Entries 44, 47, 48, 48-1, 48-2,
48-3, 48-4, 48-5.) Formal resolution of that motion will occur via
separate order at a later date, but resolution of the parties’
competing summary judgment motions necessitated public disclosure
of some of the redacted material.
3
Case 1:18-cv-00565-WO-LPA Document 55 Filed 07/17/20 Page 3 of 16
oath to take actions that occurred that afternoon [which
v]iolated the 14th amendment [right] of [Plaintiff,
Plaintiff’s wife], and all four children. Deprived of
their life, liberty, and freedom instantly without proper
due process of law and procedur[e].
. . . .
[Defendant] McClattie was rude and f[or]ceful. She had
a strong attitude that was admirable, but [Plaintiff]
only ask[s] for one thing and that was a warrant from
Rowan County Sheriff’s and [DSS]. Their invest[i]gation
of the child abuse case [wa]s flawed and not thoroughly
conducted.
They used scare tactic[s] and folly [sic]
actions on a natural born United State[s] citizen
. . . .
(Id. at 18-21.)3
B. Defendant McClattie’s Affidavit
In regard to these allegations, Defendant McClattie submitted
an affidavit (the “McClattie Affidavit”) (Docket Entry 48-1), which
reflects the following:
. . . . It is my understanding that [Plaintiff] contends
that I entered his home on March 9, 2018[,] unlawfully,
without his permission or a warrant. His contentions are
false, as I had his express permission to enter his home
on March 9, 2018. . . .
I currently serve as the Children’s Services Supervisor
for the Rowan County [DSS], a position that I have held
since October 2012. . . .
As [a] supervisor, I engaged in Two-Level Review with
[Ms.] Ashby, the Social Worker assigned to the [CPS]
investigation into allegations of physical abuse by
[Plaintiff] of his child. . . .
. . . .
3
As previously observed, Plaintiff, “acting as a pro se
party, cannot raise claims on behalf of others . . . .” (Docket
Entry 3 at 2-3.)
4
Case 1:18-cv-00565-WO-LPA Document 55 Filed 07/17/20 Page 4 of 16
I chose to accompany [Ms.] Ashby to assist her in taking
temporary custody of [Plaintiff’s] children. . . .
. . . .
Consequently, we coordinated with the Rowan
County Sheriff’s Office for several Sheriff’s Deputies to
escort us to [Plaintiff’s] house to help maintain peace
and order. . . .
. . . .
Upon our arrival
at [Plaintiff’s] residence, we all
parked our respective cars and slowly got out of them.
Per our plan, I took the lead in interacting with
[Plaintiff] while Ms. Ashby and the Deputies stayed in
the background by design. As I walked up the driveway of
the house toward a door located under a carport,
[Plaintiff] open[ed] the door. He stood in the doorway
and asked me who I was and why I was there. I identified
myself to [Plaintiff] and told him that Ms. Ashby and I
had come to take temporary custody of his children.
. . . .
[Plaintiff] stated that we did not have
authority to take custody of his children. . . .
[Plaintiff] was loud and aggressive.
However, I
maintained a calm, ‘matter of fact’ demeanor which seemed
to de-escalate his anger. I asked him to please come
outside of his house and speak with me, and he did so.
We continued talking face to face under the carport.
. . . .
After a few minutes, [Plaintiff] asked me if we could
discuss the matter further in private inside his house.
He invited me to come inside of his house, but told me
that [neither Ms. Ashby] nor any police officers were
allowed inside. . . . [Plaintiff] turned around and went
inside his house, and I followed him. Ms. Ashby and the
Sheriff’s Deputies remained outside. . . .
(Id., ¶¶ 1-12 (numbers omitted).)
C. Other Supporting Affidavits
Along with her summary judgment motion, Defendant McClattie
also submitted affidavits from Ms. Ashby (the “Ashby Affidavit”)
(Docket Entry 48-2) and Detective Cody Trexler (the “Trexler
Affidavit”) (Docket Entry 48-4), a “duly appointed and sworn Rowan
5
Case 1:18-cv-00565-WO-LPA Document 55 Filed 07/17/20 Page 5 of 16
County Deputy Sheriff, holding the rank of Detective Sergeant”
(id.,
¶
2),
“detailed
to
accompany
.
.
.
[Ms.]
Ashby
and
[Defendant] McClattie” (id., ¶ 3). The Ashby Affidavit states that
the following occurred at Plaintiff’s house on the afternoon of
March 9, 2018:
. . . . [Defendant] McClattie took the lead, walking
toward the main door of the house, which opened out onto
a carport on the side of the house. Before [Defendant]
McClattie got to the door, [Plaintiff] opened the door
and stood in the open doorway. [Defendant] McClattie
stopped walking and stood still, while the Sheriff’s
Deputies and [Ms. Ashby] stood silent several yards
behind her.
[Defendant] McClattie began to talk with [Plaintiff]
advising him that she and [Defendant Ashby] had come to
take temporary custody of [Plaintiff’s] children. . . .
[Plaintiff] did not like what [Defendant McClattie] was
saying to him, and angrily responded that we could not
take custody of his children. [Defendant] McClattie
remained calm, but firm. . . .
[Plaintiff] eventually came outside to talk with
[Defendant] McClattie [and a]fter a short while, [he]
invited [Defendant] McClattie inside his home. . . . He
told [Defendant] McClattie that she could come inside
[of] his house, but that the rest of us had to stay
outside.
At [Plaintiff’s] invitation, [Defendant]
McClattie followed [Plaintiff] inside of his home, while
the Sheriff’s Deputies and I remained outside.
(Docket Entry 48-2, ¶¶ 24-26 (numbers omitted).)
The Trexler Affidavit provided this similar account:
After we all exited our vehicles, [Defendant] McClattie
walked up the driveway toward the main door of the house,
which was located under a carport. The other Deputies
and I remained well behind [Defendant] McClattie in the
driveway . . . .
As [Defendant] McClattie approached the door of the
house, I saw an Asian male, whom I understand was
6
Case 1:18-cv-00565-WO-LPA Document 55 Filed 07/17/20 Page 6 of 16
[Plaintiff], come to the door. He spoke with [Defendant]
McClattie for a few minutes. [Plaintiff] opened the door
and eventually came outside, where he continued talking
with [Defendant] McClattie.
I could not hear any
specific details of the conversation between [Plaintiff]
and
[Defendant]
McClattie,
as
I
was
standing
approximately thirty (30) feet behind [Defendant]
McClattie in the driveway.
However, I did not hear
either of them raise their voice to one another, nor did
I perceive the interaction between [Plaintiff] and
[Defendant] McClattie as being overly hostile or
confrontational under the circumstances.
Eventually,
[Plaintiff] turned around and went back inside of his
house, with [Defendant] McClattie following closely
behind him.
I did not perceive or hear anything
suggesting to me that [Defendant] McClattie did not have
permission from [Plaintiff] to go inside of his house.
I, along with Ms. Ashby and the other four deputies,
remained outside of the house. . . .
(Docket Entry 48-4, ¶¶ 6-8 (numbers omitted).)
D. Plaintiff’s Deposition
In further support of her summary judgment motion, Defendant
McClattie submitted a transcript of Plaintiff’s deposition.
(See
Docket Entry 48-5.) In his deposition, Plaintiff stated that, upon
the arrival of DSS employees and law enforcement officers on the
afternoon
of
March
9,
2018,
Plaintiff
“went
straight
to
. . . the door and . . . went at it [with Defendant McClattie].”
(Id.
at
61.)
Plaintiff
explained
that
(i)
he
“was
at
the
threshold,” (ii) Defendant McClattie “was on the opposite side” and
(iii) Defendant McClattie “was very aggressive and wanted to take
the kids.”
(Id. at 62.)
Plaintiff then averred that he told
[Defendant] McClattie “to go get a warrant.”
(Id.; see also id.
7
Case 1:18-cv-00565-WO-LPA Document 55 Filed 07/17/20 Page 7 of 16
(testifying that Defendant McClattie insisted that “social workers”
do not “need a warrant” to take temporary custody of children).)
At that point in the deposition, Plaintiff reported that
Defendant McClattie “forced her way in . . . the house” (id.), and
that he “gave in to the coercion, the bod[y] armor, the . . .
powerhouse[,] . . . . the detective, . . . the tactic” (id. at 63).
However, a short time later in the deposition, Plaintiff admitted
that he “didn’t want [Defendant McClattie] to take the kids[,] so
[he] told her [that he wanted to] talk to [her] in private . . . .
[He then] told [Defendant McClattie] to come in the house . . . but
[he didn’t] want the[] officers in the house.
stay outside.”
(Id. at 67.)
[He] told them to
Plaintiff further confirmed that,
during his discussion with Defendant McClattie inside the house,
Ms. Ashby and the law enforcement officers remained outside, except
for a brief moment when a law enforcement officer “started coming
inside the house.” (Id. at 67-68.) Moreover, when Plaintiff “said
get out of the house” (id. at 68), that officer “stepped out”
(id.).
DISCUSSION
I. Summary Judgment Standards
“The [C]ourt 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.
A genuine dispute of material fact exists “if the
8
Case 1:18-cv-00565-WO-LPA Document 55 Filed 07/17/20 Page 8 of 16
evidence is such that a reasonable jury could return a verdict for
the nonmoving party.”
242, 248 (1986).
Anderson v. Liberty Lobby, Inc., 477 U.S.
The movant bears the burden of establishing the
absence of such dispute.
323 (1986).
Celotex Corp. v. Catrett, 477 U.S. 317,
In analyzing a summary judgment motion, the Court
“tak[es] the evidence and all reasonable inferences drawn therefrom
in the light most favorable to the nonmoving party.”
Henry v.
Purnell, 652 F.3d 524, 531 (4th Cir. 2011) (en banc).
In other
words, the nonmoving “party is entitled ‘to have the credibility of
his evidence as forecast assumed, his version of all that is in
dispute accepted, [and] all internal conflicts in it resolved
favorably to him.’”
Miller v. Leathers, 913 F.2d 1085, 1087 (4th
Cir. 1990) (en banc) (brackets in original) (quoting Charbonnages
de France v. Smith, 597 F.2d 406, 414 (4th Cir. 1979)).
If,
applying
this
standard,
the
Court
“find[s]
that
a
reasonable jury could return a verdict for [the nonmoving party],
then a genuine factual dispute exists and summary judgment is
improper.” Evans v. Technologies Applications & Serv. Co., 80 F.3d
954, 959 (4th Cir. 1996).
However, “[o]nly disputes over facts
that might affect the outcome of the suit under the governing law
will properly preclude the entry of summary judgment.”
477 U.S. at 248.
Anderson,
Additionally, “the non-moving party may not rely
on beliefs, conjecture, speculation, or conclusory allegations to
defeat
a
motion
for
summary
judgment.”
Lewis
v.
Eagleton,
9
Case 1:18-cv-00565-WO-LPA Document 55 Filed 07/17/20 Page 9 of 16
4:08-cv-2800, 2010 WL 755636, at *5 (D.S.C. Feb. 26, 2010) (citing
Barber v. Hospital Corp. of Am., 977 F.2d 872, 874-75 (4th Cir.
1992)), aff’d, 404 F. App’x 740 (4th Cir. 2010); see also Pronin v.
Johnson, 628 F. App’x 160, 161 (4th Cir. 2015) (explaining that
“[m]ere conclusory allegations and bare denials” or the nonmoving
party’s “self-serving allegations unsupported by any corroborating
evidence”
cannot
defeat
summary
judgment).
Finally,
factual
allegations in a complaint or court filing constitute evidence for
summary judgment purposes only if sworn or otherwise made under
penalty of perjury.
See Reeves v. Hubbard, No. 1:08cv721, 2011 WL
4499099, at *5 n.14 (M.D.N.C. Sept. 27, 2011), recommendation
adopted, slip op. (M.D.N.C. Nov. 21, 2011).
II. Defendant McClattie’s Summary Judgment Motion
A. Individual Capacity Claim
In her brief supporting her summary judgment motion, Defendant
McClattie has argued that “the undisputed evidence in this matter
clearly demonstrates that there was no violation of Plaintiff’s
constitutional
rights,
as
Plaintiff
admits
consented to [her] entry into his home.”
Plaintiff’s
response
does
not
dispute
that
he
expressly
(Docket Entry 43 at 14.)4
that
he
consented
4
to
Defendant McClattie’s sealed brief also contends that,
“pursuant to [a] North Carolina [statute], [she] was authorized to
enter Plaintiff’s home without a court order to take temporary
custody of Plaintiff’s children.” (Docket Entry 48 at 18 (all caps
and bold font omitted).) However, Plaintiff’s voluntary consent
allowing Defendant McClattie’s entry into his home renders
discussion of this North Carolina statute unnecessary.
10
Case 1:18-cv-00565-WO-LPA Document 55 Filed 07/17/20 Page 10 of 16
Defendant McClattie’s entrance into his home. (See Docket Entry 51
at 1-22.)
Instead, it asserts the following:
Defendant McClattie used intimidating behavior and
coercive scare tactic[s] that put Plaintiff in immediate
fear of the consequences that compelled [] Plaintiff to
act against his will.
Under duress[, P]laintiff
requested [] Defendant McClattie [] come in his house and
begged her not to take his children, that DSS had no
authorization, and that there was no child abused in the
household.
It was a necessity to beseech with []
Defendant [McClattie] inside the house, leaving the
heavily armor[ed l]aw enforcement officers in the carport
. . . .”
(Id. at 13.)
“The Fourth Amendment protects ‘the right of the people to be
secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures.’”
4:16CV198,
2018
WL
4610151,
at
*9
Pratt v. Allbritton, No.
(E.D.N.C.
Aug.
8,
2018)
(unpublished) (internal brackets omitted) (quoting U.S. Const.
amend. IV), aff’d, 764 F. App’x 343 (4th Cir. 2019)).
However,
“[w]hen considering Fourth Amendment challenges to investigations
by
DSS
officials,
the
Fourth
Circuit
has
explained
that
‘investigative home visits by social workers are not subject to the
same scrutiny as searches in the criminal context.’” Id. (internal
bracket omitted) (quoting Wildauer v. Frederick Cty., 993 F.2d 369,
372 (4th Cir. 1993)); see also Parker v. Henry & William Evans Home
for Children, Inc., 762 F. App’x 147, 154 (4th Cir. 2019) (noting
that the Fourth Circuit has “not articulated the legal standard
11
Case 1:18-cv-00565-WO-LPA Document 55 Filed 07/17/20 Page 11 of 16
that applies to Fourth Amendment unlawful seizure claims in the
child removal context”).
In any event, even under the criminal standard, Plaintiff’s
claim
ultimately
fails.
Of
particular
note,
“‘[t]he
Fourth
Amendment generally prohibits the warrantless entry of a person’s
home, whether to make an arrest or to search for specific objects.
The prohibition does not apply, however, to situations in which
voluntary consent has been obtained [] from the individual whose
property is searched . . . .’”
United States v. Azua-Rinconada,
914 F.3d 319, 324 (4th Cir. 2019) (quoting Illinois v. Rodriguez,
497 U.S. 177, 181 (1990)). “The question whether consent to search
is voluntary — as distinct from being the product of duress or
coercion, express or implied — is one ‘of fact to be determined
from
the
totality
of
all
the
circumstances.’”
Id.
(quoting
Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973)).
Contrary to Plaintiff’s (unsworn) assertions, Defendant’s
supporting affidavits and Plaintiff’s own sworn testimony refute
any allegation
of
involuntary
consent.
In
that
regard,
the
McClattie Affidavit, the Ashby Affidavit, and the Trexler Affidavit
show that, shortly after their arrival to Plaintiff’s residence,
(i) Defendant McClattie and Plaintiff engaged in conversation, (ii)
Plaintiff ultimately invited Defendant McClattie inside of his
residence and coupled that invitation with a directive that Ms.
Ashby and law enforcement officers remain outside, (iii) Ms. Ashby
12
Case 1:18-cv-00565-WO-LPA Document 55 Filed 07/17/20 Page 12 of 16
and law enforcement officers complied with that instruction and, at
a later point, (iv) when one or more law enforcement officers
briefly entered the residence, the officer(s) immediately exited
upon Plaintiff’s request. (See Docket Entry 48-1, ¶¶ 11-13; accord
Docket Entry 48-2, ¶¶ 25-27; Docket Entry 48-4, ¶¶ 7-9.)
Similarly, in his sworn testimony, Plaintiff stated that,
after conversing with Defendant McClattie from his doorway (see
Docket Entry 48-5 at 61-67), he “didn’t want her to take [his]
kids[,] so [he] told her well, let me talk to you in private” (id.
at
67).
Plaintiff
then
confirmed
that
he
“told
[Defendant]
McClattie to come in the house . . . but [that he didn’t] want
the[] officers in [his] house.
[He] told them to stay outside.”
(Id.) According to Plaintiff, at a later point in his conversation
with Defendant McClattie, “one of the officers started coming
inside [of his] house.”
(Id. at 68.)
Plaintiff “told all of
them[, including Defendant McClattie, to] step out of the house
. . . [a]nd they stepped out . . . .”
(Id.)
This record conclusively establishes that Plaintiff not only
voluntarily consented to Defendant McClattie’s entry, but actually
invited her into his home because he believed doing so served his
interest, by giving him a better chance to talk her out of taking
temporary custody of his children.
Plaintiff’s Fourth Amendment
claim therefore fails as a matter of law.
13
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Alternatively,
Defendant
McClattie
judgment based on qualified immunity.
has
requested
summary
(Docket Entry 43 at 14.)
“Qualified immunity from [Section] 1983 claims ‘protects government
officials from liability for civil damages insofar as their conduct
does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known.’”
Doe ex
rel. Johnson v. South Carolina Dep’t of Soc. Servs., 597 F.3d 163,
169 (4th Cir. 2010) (quoting Pearson v. Callahan, 555 U.S. 223, 231
(2009)).
Put simply, qualified immunity “ensures that officials
are not unfairly strung up for money damages as a result of bad
guesses in gray areas [and] [i]t encourages capable citizens to
join the ranks of public servants by removing the threat of
constant litigation.”
Braun v. Maynard, 652 F.3d 557, 560 (4th
Cir. 2011) (internal citation and
“Determining
whether
qualified
quotation marks omitted).
immunity
applies
involves
a
two-prong inquiry: ‘whether the facts make out a violation of a
constitutional right’ and ‘whether the right at issue was ‘clearly
established’ at the time of defendant’s alleged misconduct.’” West
v. Murphy, 771 F.3d 209, 213 (4th Cir. 2014) (quoting Pearson, 555
U.S. at 232 (internal ellipsis omitted)).
For
reasons
discussed
above,
Defendant
McClattie
has
identified an absence of evidence to support Plaintiff’s claim of
unlawful deprivation of his constitutional rights and thus the
qualified immunity doctrine also defeats his claim.
14
Case 1:18-cv-00565-WO-LPA Document 55 Filed 07/17/20 Page 14 of 16
B. Official Capacity Claim
Lastly, Plaintiff’s official capacity claim against Defendant
McClattie constitutes a claim “against the governmental entity
employing [her],” Nivens v. Gilchrist, 444 F.3d 237, 249 (4th Cir.
2006), i.e., the Rowan County DSS.
Assuming for purposes of
discussion only that the foregoing entity qualifies as a person
subject to suit under § 1983, “it must be shown that the actions of
[their employee] were unconstitutional and were taken pursuant to
a custom or policy of the entity.”
Giancola v. State of W. Va.
Dep’t of Pub. Safety, 830 F.2d 547, 550 (4th Cir. 1987) (citing
Monell v. New York City Dep’t of Soc. Servs., 436 U.S. 658, 690–92,
(1978)).
As detailed previously, the record does not support
Plaintiff’s
allegations
Defendant McClattie.
of
unconstitutional
actions
taken
by
Further, the Complaint fails to allege facts
which (if accepted as true) would establish that any constitutional
violations occurred pursuant to a custom or policy of the Rowan
County DSS.
(See Docket Entry 2 at 1-22.)
Therefore, any official
capacity claim obviously fails as a matter of law.
III. Plaintiff’s Summary Judgment Motion
Plaintiff also moved for summary judgment.
(See generally
Docket Entry 49.) For reasons discussed above, Defendant McClattie
has demonstrated entitlement to summary judgment.
Further, as
Defendant McClattie correctly has contended, “Plaintiff d[id] not
offer any competent evidence in support of his motion for summary
15
Case 1:18-cv-00565-WO-LPA Document 55 Filed 07/17/20 Page 15 of 16
judgment. . . . [and he] completely ignore[d] his own sworn
deposition testimony . . . that is fatal to his case.”
Entry 50 at 3.)
(Docket
Simply put, Plaintiff’s motion does not alter the
record facts that establish Defendant McClattie’s entitlement to
summary judgment and that preclude entry of judgment in his favor.
CONCLUSION
The record compels the entry of judgment as a matter of law
for Defendant McClattie on Plaintiff’s individual and official
capacity claims.
IT IS RECOMMENDED that Defendant McClattie’s summary judgment
motion (Docket Entry 42) be granted and that Plaintiff’s summary
judgment motion (Docket Entry 49) be denied.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
July 17, 2020
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Case 1:18-cv-00565-WO-LPA Document 55 Filed 07/17/20 Page 16 of 16
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