Carias v. Harrison

FERNANDO PALMA CARIAS, Plaintiff, v. DONNIE HARRISON, Sheriff; E.A. BLOMGREN, Investigator;JAMES MICHAEL CORNAIRE, Deputy Sheriff;DWIGHT YOKUM; NARDINE MARY GUIRGUIS;DRUG ENFORCEMENT AGENCY DIRECTOR; UNITED STATES IMMIGRATIONAND CUSTOMS ENFORCEMENT AGENCY DIRECTOR; CHRISTOPHER BRANT;TOM HALVAS; ERIC HOLDER; UNIDENTIFIED INDEMNITOR FOR WAKE COUNTY;WILLIAM ATWELL; LANCE ANTHONY; MICHAEL WILLIAMS; D. TAYLOR;DRUG ENFORCEMENT ADMINISTRATION; THE UNITED STATES; and K. MANNING, Defendants.

NO. 5:13-CT-3264-FL

NO. 5:14-CT-3104-FL

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA WESTERN DIVISION

March 24, 2017

ORDER

These consolidated cases are before the court on defendants' respective motions for summary judgment (DE 127, 132, 135). Also before the court is plaintiff's motion for the court to "apply the presumption test toward all defendants" (DE 182). The issues raised have been fully briefed and are ripe for adjudication. For the following reasons, the court denies plaintiff's motion to apply the presumption test and grants defendants' respective motions for summary judgment.

STATEMENT OF THE CASE

On October 25, 2013, plaintiff, a state inmate, instituted this action pursuant to 42 U.S.C. § 1983, against defendants Wake County Sheriff Donnie Harrison ("Harrison"), Wake County Investigator E.A. Blomgren ("Blomgren"), and Wake County Deputy Sheriff James Michael Cornaire ("Cornaire") (collectively referred to as the "Sheriff's defendants"). See Carias v. Harrison, 5:13-CT-3264-FL (E.D.N.C. Oct. 25, 2013) ("Carias I"). Then, on April 28, 2014, plaintiff instituted an action pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), against defendants the United States, Drug Enforcement Agency ("DEA"), DEA Agent William Atwell ("Atwell"), DEA Agent Lance Anthony ("Anthony"), Harnett County Investigator Michael Williams ("Williams"), DEA Agent D. Taylor ("Taylor"), and DEA Agent K. Manning ("Manning"). See Carias v. the Drug Enforcement Agency, 5:14-CT-3104-BO (E.D.N.C. Apr. 28, 2014) ("Carias II"). Plaintiff subsequently added Dwight Yokum ("Yokum"), a Wake County Sheriff's Office Investigator, as a defendant. The court, however, dismissed plaintiff's action against Yokum without prejudice on November 6, 2014. On May 11, 2015, the court consolidated the actions in Carias I and II, and directed plaintiff to file one particularized amended complaint.

Plaintiff filed his particularized complaint alleging claims pursuant to 42 U.S.C. §§ 1983, 1981, and Bivens, and added the following new parties: Nardine Mary Guirguis ("Guirguis"), an attorney; the United States Immigration and Customs Enforcement ("ICE") Director; United States Attorney General Eric Holder; the DEA Director; an unidentified ICE agent; ICE Special Agent Christopher Brant ("Brant"); and the unidentified indemnitor for Wake County. Specifically, plaintiff alleged the following claims against defendants: (1) excessive force and failure to protectin violation of the Eighth and Fourteenth Amendments to the United States Constitution; (2) due process claims pursuant to the Fifth and Fourteenth Amendments; (3) involuntary servitude in violation of the Thirteenth Amendment; (4) illegal search and seizure in violation of the Fourth Amendment; (5) extortion in violation of the Hobbs Act under 18 U.S.C. § 1951; (6) violations of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1962; (7) violations of the Unfair and Deceptive Trade Practices Act ("UDTPA"), N.C. Gen. Stat. § 75-1; (8) violations of North Carolina's Constitution, Article I §§ 17, 19, 27; and violations of the Due Process Clause of the Fourteenth and Fifth Amendments to the United States Constitution. (Am. Compl. p. 9.) As relief, plaintiff sought monetary damages as well as declaratory and injunctive relief. (Id.) Defendant Manning, defendant Guirguis, and the federal defendants subsequently filed respective motions to dismiss.¹

On March 23, 2016, the court issued the following rulings: granted plaintiff a continuance to conduct discovery, and construed defendants' dispositive motions as motions to dismiss pursuant to Rules 12(b)(1) and (6); extended the case management deadlines to accommodate discovery; denied plaintiff's motion to appoint counsel; dismissed plaintiff's Hobbs Act claims and FTCA claims pursuant to 28 U.S.C. § 1915(e)(2)(B); denied defendant Manning's motion to dismiss; granted defendant Guirguis' motion to dismiss and dismissed Guirguis from this action; and directed the clerk to substitute Tom Halvas ("Halvas") for the party plaintiff referred to as the "unidentified ICE agent" in his amended complaint. The court also granted in part and denied in part theremaining federal defendants' motion to dismiss. Specifically, the court denied the federal defendants' motion as to plaintiff's claims pursuant to the Eighth, Fifth, Thirteenth, and Fourth Amendments, as well as plaintiff's RICO and North Carolina State Constitutional claims. Plaintiff's official capacity claims for injunctive relief also remained pending against the federal defendants, but the court granted the federal defendants' motion to dismiss as to plaintiff's remaining claims.

On the same date, plaintiff filed a motion to compel discovery. In response, the Sheriff's defendants requested additional time to respond to plaintiff's discovery requests because such requests were voluminous. On April 6, 2016, the federal defendants filed a motion for leave to depose plaintiff and a motion to shorten the time for plaintiff to respond to the federal defendants' motion. The court then granted the federal defendants' motions to depose plaintiff and to shorten the response time. The court also allowed the Sheriff's defendants additional time to respond to plaintiff's discovery requests, and denied as moot plaintiff's motion to compel.

On June 9, 2016, plaintiff again filed a motion to compel, to which the federal defendants responded. Plaintiff then filed an additional motion to compel discovery. On July 28, 2016, the federal defendants filed the instant motion for summary judgement, arguing that plaintiff is unable to establish a constitutional violation, or, in the alternative, that they are entitled to the affirmative defense of qualified immunity. The federal defendants also submitted a statement of material facts and an appendix which included the following attachments: plaintiff's deposition transcript; responses to the federal defendants' interrogatories; declarations from non-parties Michael Troster("Troster"),² Thomas O'Connell ("O'Connell"),³ as well as defendants Halvas, Williams, and Taylor; crime scene entry report; power of attorney; motion for temporary restraining order; preliminary injunction; and the Last Will and Testament of Marisol Rojas ("Rojas"), an individual plaintiff describes as his common law wife. The federal defendants' motion for summary judgment was fully briefed.

On July 29, 2016, defendant Manning filed the instant motion for summary judgment arguing that plaintiff failed to establish a constitutional violation, or in the alternative, that he is entitled to the affirmative defense of qualified immunity. Defendant Manning also submitted a statement of material facts and an appendix to which he attached the same exhibits the federal defendants attached to their motion for summary judgment.

Also on July 29, 2016, the Sheriff's defendants filed the instant motion for summary judgment arguing that plaintiff failed to establish a constitutional violation, or in the alterative, that they are entitled to the affirmative defense of qualified immunity. The Sheriff's defendants attached to their motion a statement of material facts and an appendix.⁴ The Sheriff's defendants' appendix included the following: affidavits from defendants Blomgren, Cornaire, and Harrison, as well asnon-parties Jebediah Yoakum,⁵ Charles Timothy Blake ("Blake"),⁶ Wake County Sheriff's Deputy Derrick Johnson ("Johnson"), Christian Fernando Palma ("C. Palma"), Fernando Alexander Palma ("A. Palma"),⁷ Raleigh Police Department Officer Eric Michael Vigeant ("Vigeant"), Wake County Sheriff's Major Charles West ("West"), plaintiff and Rojas' Last Will and Testament; plaintiff and Rojas' power of attorney; check number 1041; receipt for $5,000.00; lottery ticket; order on foreclosure; child custody order; letters testamentary for Rojas; default judgment; preliminary injunction; memorandum of disbursement and checks; transcript of plea; Child Protection Services letter; civil complaint (case number 13CVS08801); motion for a temporary restraining order; order to sell real property; report of real estate sale; order confirming real property sale; final report of real estate sale; check number 1047; plaintiff's request for admissions in case number 13CVS08801; motion for a temporary restraining order in case number 13CVS08801; bank statement; BB&T account summary; repayment agreement; search report; hearing transcript in case number 13CVS08801; plaintiff's motion for appropriate relief; and order to dissolve receivership.

On September 6, 2016, plaintiff filed motions to stay, for an extension of time, and to appoint counsel. On December 16, 2016, the court denied plaintiff's motion to appoint counsel, but granted in part and denied in part plaintiff's motions to compel. The court granted plaintiff's motions to compel to the extent plaintiff requested a copy of his deposition transcripts, but the remainder of the motions were denied. The court also denied plaintiff's motion to stay ruling on thepending motions for summary judgment, but allowed plaintiff an extension of time to supplement his response to the pending motions for summary judgment. Plaintiff subsequently filed his supplemental responses. Plaintiff attached voluminous exhibits in response to the respective dispositive motions and his supplemental responses.

On January 10, 2017, plaintiff filed...