DeBruhl v. Buncombe Co. Sheriff's Dept. et al

Filing 12

MEMORANDUM AND RECOMMENDATIONS and ORDER: ORDER staying all further proceedings in this action including all discovery pending District Judge's ruling on this M&R. RECO MMENDATION to the District Judge that the 7 MOTION to Dismiss for Lack of Jurisdiction filed by Roney Hilliard, Kevin Calhoun, Buncombe Co. Sheriff's Dept., Jack Van Duncan, Natalie Bailey be granted and this matter be dismissed with prejudice; and 11 MOTION for Sheriffs Department to produce PUBLIC RECORD! MOTION to Resume Case filed by Tracey N. DeBruhl, be denied. (Objections to M&R due by 4/13/2017 plus an additional 3 days if served by mail.). Signed by Magistrate Judge David S. Cayer on 03/30/2017. (Pro se litigant served by US Mail.) (ni)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL ACTION NO. 1:16-CV-00404-MR-DSC
TRACEY N. DEBRUHL,
Plaintiff,
v.
BUNCOMBE CO. SHERIFF'S DEPT. et
al.,
Defendants.

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MEMORANDUM AND
RECOMMENDATION AND ORDER

THIS MATTER is before the Court on “Buncombe County’s Motion to Dismiss”
(document #7) filed February 8, 2017, Plaintiff’s “Introduction of New Evidence. Reply to
Defendants [sic] RESPONSE TO NOT RESPOND. Motion to resume case. Motion for Sheriffs
Department to produce PUBLIC RECORD!” (document #11) filed March 15, 2017, and the
parties’ associated briefs and exhibits (documents ##7, 9-11).
This matter was referred to the undersigned Magistrate Judge pursuant to 28 U.S.C. §
636(b)(1), and these Motions are now ripe for the Court’s consideration.
Having fully considered the arguments, the record, and the applicable authority, the
undersigned respectfully recommends that Defendants’ Motion to Dismiss be granted and
Plaintiff’s Motion be denied, as discussed below.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
This action arises from Plaintiff’s alleged mistreatment by the Buncombe County Sheriff’s
Department in 2012. Defendants are Buncombe County, Buncombe County Sheriff’s Office,

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Sheriff Jack Van Duncan, Lieutenant Roney Hilliard, Lieutenant Kevin Calhoun, and Public
Information Officer Natalie Bailey.
The Complaint alleges that the events giving rise to this action occurred at Plaintiff’s
mother’s home on December 27, 2012:
On 12/27/12 Asheville City Police operating outside of City Jurisdiction in what
can only be viewed as a retaliatory act. From where Plaintiff was solely doing as
trained thru Buncombe Schools & Federal Military training. To which helped the
FBI convict APD officers. To which lead up to Buncombe County Sheriff Officers
going to Plaintiff home. Portraying themselves being there under false pretense.
Where country Officers committed Class C & Class F felonies against Plaintiff
leaving him with as defineded by VA Charles George & Mission Hospital guest
doctor Traumatic Brain Injury &/or Post Traumatic Stress. Prior to the attack on
Plaintiff he was a 10 yr honorably discharge US Marine & Wounded Warrior
Project Alumni Due to service related back injury. Project Coordinator,
Construction & business owner w/ Shell, Pennzoil, Quaker State, Midas, Wachovia
& many other national cooperation. Since Plaintiff was attacked he has had trouble
with work, communication, relations & most areas of survival. Plaintiff was
honorably served & doing as trained to speak up which should be encouraged to
promote Constitutional rights among the foundation to be a free nation.
Doc. 1 at 11.
As Plaintiff acknowledges in his Complaint, he made the same allegations in an earlier case
filed in Buncombe County Superior Court. In the Amended Complaint filed on March 10, 2016
he alleged:
DECEMBER 27, 2012 PLAINTIFF WAS ATTACKED AT HIS HOME AFTER
PUBLICALLY SPEAKING OUT ON FACEBOOK ABOUT AN ON GOING
INVESTIGATION UNBEKNOWNST TO PLAINTIFF MORE THAN THE
DEGREE HE EXPERIENCED. PLAINTIFFS MOTHER WAS THE VICTIM TO
A ROBBERY WHO'S CULPRIT CONFESSED & TURNED STATES
EVIDENCE TO WHAT OPENED ASHEVILLE CITY EVIDENCE ROOM
AUDIT. TO THE PLAINIFFS BEST UNDERSTANDING OFFICERS WERE
IMPOSTERING PLAINTIFFS FRIEND ON SAID NIGHT AS PLAINTIFF WAS
ARGUING PLAINTIFFS RELIGIOUS VIEWS THAT BAD THINGS DESERVE
TO HAPPEN TO BAD PEOPLE. WHEN OFFICERS KNOCKED ON THE
DOOR STATING PLAINTIFFS MOTHER HAD BEEN HARMED. WITH
PLAINTIFF OPENING DOOR IN COMPLIANCE 4 OFFICERS
IMMEDIATELY DRUG HIM TO THE GROUND WITH AN ARMBAR
PROCEDURE. 2ND OFFICER GRABBING LEFT ARM TRICEPT WHILE
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PINNING LOWER ARM WITH KNEE CHOKING/HOLDING PLAINTIFFS
CHEEK FIRMLY TO THE GROUND. OFFICER WHO KNOCKED TAZING
THE BACK WITH EXTENDED ARM TAZER DEVISE AND THE 4TH
LARGEST OF THE OFFICERS KICKING THE REAR "SOFT SPOT REGION"
OF PLAINTIFFS HEAD WHILE WEARING COMBAT STYLE BOOTS.
OFFICER KICKING SO HARD THAT AFTER THE 4TH KICK HE LOST HIS
BALANCE & FELL OF PLAINTIFFS MEAGER TRAILER PORCH.
PLAINTIFF WAS PINNED THE WHOLE TIME BEING KICKED. OFFICER
THAT FELL THEN PULLED PLAINTIFF OFF OF PORCH AS OTHERS CAME
AROUND & JOINED "CLUBBING" STYLE HITS TO VICTIMS BACK.
PLAINTIFF WAS ALREADY A WOUNDED VETERAN. THE WHOLE TIME
DURING ATTACK PLAINTIFF WAS YELLING "I'm not Resisting until it
became cries of Jesus get these evil people off of me”
Doc. 7-1 at 2.
Superior Court Judge Gary Gavenus granted a Rule 12(b)(6) motion to dismiss the state
case on May 16, 2016. See Doc. 7-2.
Plaintiff’s appeal to the North Carolina Court of Appeals was dismissed on procedural
grounds by Superior Court Judge Sharon Tracey Barrett on November 29, 2016. See Doc. 7-3.
On December 22, 2016, Plaintiff filed the instant Complaint. Doc. 1. On February 8, 2017,
Defendants filed their Motion to Dismiss. On March 15, 2017, Plaintiff filed his Motion. The
parties’ Motions are now ripe for disposition.
II. DISCUSSION
In reviewing a Rule 12(b)(6) motion, “the court should accept as true all well-pleaded
allegations and should view the complaint in a light most favorable to the plaintiff.” Mylan Labs.,
Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993). The plaintiff’s “[f]actual allegations must be
enough to raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 555 (2007). “[O]nce a claim has been stated adequately, it may be supported by showing
any set of facts consistent with the allegations in the complaint.” Id. at 563. A complaint attacked
by a Rule 12(b)(6) motion to dismiss will survive if it contains enough facts to “state a claim to
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relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly,
550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Id.
In Iqbal, the Supreme Court articulated a two-step process for determining whether a
complaint meets this plausibility standard. First, the court identifies allegations that, because they
are no more than conclusions, are not entitled to the assumption of truth. Id. “Threadbare recitals
of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id.
(citing Twombly, 550 U.S. at 555) (allegation that government officials adopted challenged policy
“because of” its adverse effects on protected group was conclusory and not assumed to be true).
Although the pleading requirements stated in “Rule 8 [of the Federal Rules of Civil Procedure]
mark[] a notable and generous departure from the hyper-technical, code-pleading regime of a prior
era ... it does not unlock the doors of discovery for a plaintiff armed with nothing more than
conclusions.” Id. at 678-79.
Second, to the extent there are well-pleaded factual allegations, the court should assume
their truth and then determine whether they plausibly give rise to an entitlement to relief. Id. at
679. “Determining whether a complaint contains sufficient facts to state a plausible claim for relief
“will ... be a context-specific task that requires the reviewing court to draw on its judicial
experience and common sense.” Id. “Where the well-pleaded facts do not permit the court to
infer more than the mere possibility of misconduct, the complaint has alleged-but it has not
‘show[n]’-‘that the pleader is entitled to relief,’” and therefore should be dismissed. Id. (quoting
Fed. R. Civ. P. 8(a)(2)).

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The Court is mindful of the latitude extended to the pleadings of pro se litigants. See
Haines v. Kerner, 404 U.S. 519, 520 (1972) (courts should “[c]onstru[e] [a pro se] petitioner’s
inartful pleading liberally”). However, courts cannot act as the pro se plaintiff’s advocate or
develop claims which the plaintiff failed to raise clearly on the face of his complaint. Gordon v.
Leeke, 574 F.2d 1147, 1152 (4th Cir. 1978) (recognizing that district courts are not expected to
assume the role of advocate for the pro se plaintiff). See also Brock v. Carroll, 107 F.3d 241, 243
(4th Cir. 1997) (Luttig, J., concurring); Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th
Cir. 1985).
Plaintiff’s Complaint is barred by the Rooker-Feldman doctrine which prohibits actions
attacking state court judgments in federal court. As the Fourth Circuit explained:
Under the Rooker–Feldman doctrine, a “party losing in state court is barred from
seeking what in substance would be appellate review of the state judgment in a
United States district court.” Johnson v. De Grandy, 512 U.S. 997, 1005–06, 114
S.Ct. 2647, 129 L.Ed.2d 775 (1994). We regard the doctrine as jurisdictional. See
Friedman's, Inc. v. Dunlap, 290 F.3d 191, 196 (4th Cir.2002) (“Because the
Rooker–Feldman doctrine is jurisdictional, we are obliged to address it before
proceeding further in our analysis.”); Plyler v. Moore, 129 F.3d 728, 731 (4th Cir.
1997) (“Under the Rooker–Feldman doctrine, lower federal courts do not have
jurisdiction to review state-court decisions.”); Jordahl v. Democratic Party of Va.,
122 F.3d 192, 197 n. 5 (4th Cir. 1997) (noting that the Rooker–Feldman doctrine is
a jurisdictional matter that a court is empowered to raise sua sponte ). The notion
that Rooker–Feldman is jurisdictional “rests on two basic propositions of federal
jurisdiction.” Brown & Root, Inc. v. Breckenridge, 211 F.3d 194, 198 (4th Cir.
2000). One is that “Congress ... vested the authority to review state court judgments
in the United States Supreme Court alone” under 28 U.S.C. § 1257(a). Id. at 198–
99. The other is that “Congress has empowered the federal district courts to exercise
only original jurisdiction.” Id. at 199. The Rooker–Feldman doctrine, therefore,
preserves a fundamental tenet in our system of federalism that, with the exception
of habeas cases, appellate review of state court decisions occurs first within the
state appellate system and then in the United States Supreme Court. See Plyler, 129
F.3d at 731. A litigant may not circumvent these jurisdictional mandates by
instituting a federal action which, although not styled as an appeal, “amounts to
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nothing more than an attempt to seek review of [the state court's] decision by a
lower federal court.” Id. at 733; see Jordahl v. Democratic Party of Va., 122 F.3d
192, 202 (4th Cir.1997) (explaining that a litigant “may not escape the jurisdictional
bar of Rooker–Feldman by merely refashioning its attack on the state court
judgment[ ] as a § 1983 claim”). For purposes of Rooker–Feldman, “[t]he
controlling question ... is whether a party seeks the federal district court to review
a state court decision and thus pass upon the merits of that state court decision.”
Jordahl, 122 F.3d at 202; see Brown & Root, 211 F.3d at 202 (“[T]he pivotal inquiry
is whether the federal plaintiff seeks to set aside a state court judgment or whether
he is, in fact, presenting an independent claim.” (alterations and internal quotation
marks omitted).
Am. Reliable Ins. Co. v. Stillwell, 336 F.3d 311, 316 (4th Cir. 2003). See also, District of
Columbia Court of Appeals v. Feldman, 460 U.S. 462, 482 (1983); Rooker v. Fidelity Trust
Company, 263 U.S. 413, 416 (1923).
Here, Plaintiff admits in his Complaint that he previously brought “a lawsuit in state or
federal court that dealt with the same facts that are involved in this action.” See Doc. 1 at 8. He
also acknowledges that the state court action was dismissed. Accordingly, this action is barred by
the Rooker-Feldman doctrine and the undersigned respectfully recommends dismissal.1
III. ORDER
IT IS HEREBY ORDERED that all further proceedings in this action, including all
discovery, are STAYED pending the District Judge’s ruling on this Memorandum and
Recommendation and Order.
IV. RECOMMENDATION
FOR THE FOREGOING REASONS, the undersigned respectfully recommends that
Defendants Buncombe County Sheriff’s Department, Sheriff Jack Van Duncan, Lt. Kevin

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the Court to construe the Complaint as alleging a claim under 42 U.S.C. § 1983, that claim accrued on
December 27, 2012. Accordingly, it would be barred by the applicable three-year statute of limitations. See
Wallace v. Kato, 549 U.S. 384, 387 (2007) (state statute of limitations for personal injury actions governs claims
brought under 42 U.S.C. § 1983).

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Calhoun, Lt. Roney Hilliard, and Officer Natalie Bailey’s “Motion to Dismiss” (document #7) be
GRANTED and this matter be DISMISSED WITH PREJUDICE. The undersigned further
recommends that Plaintiff’s “Introduction of New Evidence. Reply to Defendants [sic]
RESPONSE TO NOT RESPOND. Motion to resume case. Motion for Sheriffs (sic) Department
to produce PUBLIC RECORD!” (document #11) be DENIED.
V. NOTICE OF APPEAL RIGHTS
The parties are hereby advised that, pursuant to 28 U.S.C. §636(b)(1)(c), written objections
to the proposed findings of fact and conclusions of law and the recommendation contained in this
Memorandum must be filed within fourteen (14) days after service of same. Failure to file
objections to this Memorandum with the District Court constitutes a waiver of the right to de novo
review by the District Judge. Diamond v. Colonial Life, 416 F.3d 310, 315-16 (4th Cir. 2005);
Wells v. Shriners Hosp., 109 F.3d 198, 201 (4th Cir. 1997); Snyder v. Ridenour, 889 F.2d 1363,
1365 (4th Cir. 1989). Moreover, failure to file timely objections will also preclude the parties
from raising such objections on appeal. Thomas v. Arn, 474 U.S. 140, 147 (1985); Diamond, 416
F.3d at 316; Page v. Lee, 337 F.3d 411, 416 n.3 (4th Cir. 2003); Wells, 109 F.3d at 201; Wright v.
Collins, 766 F.2d 841, 845-46 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir.
1984).
The Clerk is directed to send copies of this Memorandum and Recommendation and Order
to the pro se Plaintiff; to defense counsel; and to the Honorable Martin Reidinger.
SO ORDERED AND RECOMMENDED.

Signed: March 30, 2017

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