Evans v. City of Jacksonville

GEORGE R. EVANS, SR., Plaintiff, v. CITY OF JACKSONVILLE, NORTH CAROLINA,POLICE CHIEF MICHAEL YANIERO, CAPT. JASON BETTIS, SGT. J.N. KELLER,RICHARD WOODRUFF, CAPTAIN DORN, and BRIAN EDES, Defendants.

No. 5:16-CT-3092-FL

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

March 18, 2019

ORDER

This matter is before the court on defendants' motion for summary judgment (DE 77), filed pursuant to Federal Rule of Civil Procedure 56. The motion was fully briefed and thus the issues raised are ripe for decision. For the reasons stated below, the motion is granted and plaintiff's claims are dismissed with prejudice.

STATEMENT OF THE CASE

On April 18, 2016, plaintiff, a state inmate proceeding pro se, filed this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff primarily alleges defendants retaliated against him for filing civil lawsuits against members of the Jacksonville, N.C. police department ("Jacksonville police department") in violation of the First Amendment to the United States Constitution, and that defendants Keller and Edes disclosed that he was working as a confidential information. Plaintiff seeks compensatory and punitive damages, and an injunction directing defendants to stop disclosing the names of confidential informants.

On November 7, 2016, the court conducted its frivolity review of plaintiff's complaint and directed plaintiff to file amended complaint particularizing his claims. Plaintiff timely filed the amended complaint. On December 2, 2016, the court dismissed the action without prejudice because plaintiff had incurred three strikes under the Prison Litigation Reform Act ("PLRA"). See 28 U.S.C. § 1915(g).¹ Plaintiff thereafter filed motion to alter or amend judgment, requesting that the court vacate the judgment because he intended to pay the filing fee. On March 28, 2017, plaintiff paid the filing fee, and the court thereafter reinstated the action.

On May 8, 2017, the court conducted its frivolity review of plaintiff's amended complaint and allowed the matter to proceed as to the named defendants. The court, however, dismissed plaintiff's claims against defendants Dorn and Edes because plaintiff did not name them as defendants in the amended complaint. On May 17, 2017, plaintiff filed motion to amend the complaint seeking to reinstate claims against defendants Dorn and Edes, which the court subsequently granted. Defendants filed answers to plaintiff's amended complaint in July and September 2017. On October 5, 2017, the court entered case management order governing discovery and dispositive motions practice. The parties completed discovery, including written discovery and plaintiff's deposition, on or about February 20, 2018.

On April 16, 2018, defendants filed the instant motion for summary judgment, arguing they are entitled to judgment as a matter of law on each of plaintiff's claims. In support of the motion, defendants filed memorandum of law, statement of material facts, and affidavits of defendants Edesand Keller. Plaintiff filed response in opposition on June 1, 2018, which included memorandum of law, statement of undisputed material facts, plaintiff's declaration, excerpts from plaintiff's deposition, and defendants' responses to plaintiff's written discovery requests.

STATEMENT OF FACTS

The court recounts the facts in the light most favorable to plaintiff. In March 2013, officers with the Jacksonville police department arrested plaintiff for possession of cocaine, possession of drug paraphernalia, and carrying a concealed weapon. State v. Evans, ___ N.C. App. ___, 795 S.E.2d 444, 447-48 (2017). At the time, defendant Bettis was a captain with the Jacksonville police department. (Am. Compl. Ex. A (DE 12-1)). On June 27, 2013, defendant Bettis emailed the prosecutor and stated the following: "[plaintiff] has sued the department over civil rights issues in relationship to [the drug and weapon charges]. We respectfully request that you do NOT plea bargain with Mr. Evans and take the case to trial." (Id.) Defendant Dorn is a captain with the Jacksonville police department, and he allegedly sent similar emails to the prosecutor requesting that plaintiff not receive plea offers because he filed civil lawsuits against the department. (See Mot. Am. Compl. (DE 22) at 2-3).²

Defendant Keller is also an officer with the Jacksonville police department. (Am. Compl. (DE 12) § V). Plaintiff alleges defendant Keller "gave out confidential info[rmation] to several [Jacksonville police department] officers [including] that I gave up confidential info[rmation] about [a drug dealer] who was busted for drug sales." (Id.) Defendant Keller also disclosed that plaintiff was working as a confidential informant to various assistant district attorneys and other privateattorneys. (Id.; Pl.'s Decl. (DE 82-2) ¶¶ 8, 10-12, 25). Plaintiff alleges defendant Keller released this information "to intimidate me into not testifying against the police in [a lawsuit plaintiff filed against the Jacksonville police department.]" (Am. Compl. (DE 12) § V).

Defendant Yaniero is the Jacksonville police chief, and defendant Woodruff is the Jacksonville city manager. (Id.) Plaintiff informed both of these defendants about defendant Keller's disclosure that plaintiff was a confidential informant, but they did not investigate plaintiff's claims, discipline defendant Keller, or otherwise make any changes in policing policy. (Id.)

Defendant Edes is a private attorney who has represented Jacksonville police department officers in previous civil lawsuits plaintiff has filed against the officers. (Mot. Am. Compl. (DE 22) at 1-2). According to plaintiff, defendant Edes helped defendant Keller "cover up" Keller's criminal conduct, and instructed Jacksonville police officers to commit perjury in plaintiff's criminal prosecution and his civil lawsuits. (Id.; Pl.'s Decl. (DE 82-2) ¶¶ 15-17). Defendant Edes also allegedly attempted to intimidate plaintiff into not testifying against Jacksonville police officers in a civil lawsuit by asking him about his status as a confidential informant at a deposition. (Mot. Am. Compl. (DE 22) at 2-3; Pl.'s Dep. Tr. (DE 83-1) at 8:14-18).

DISCUSSION

A. Standard of Review

Summary judgment is appropriate when there exists no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Anderson v. Liberty Lobby, 477 U.S. 242, 247 (1986). The party seeking summary judgment bears the burden of initially coming forward and demonstrating an absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party has met its burden, thenonmoving party "may not rest upon the mere allegations or denials of his pleading" but "must set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 248-49; see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The nonmoving party thus "bears the burden of showing, by means of affidavits or other verified evidence, that [a] genuine dispute of material fact exists." Bouchat v. Baltimore Ravens Football Club, Inc., 346 F.3d 514, 522 (4th Cir. 2003). There is no issue for trial unless there is sufficient evidence favoring the non-moving party for a jury to return a verdict for that party. Anderson, 477 U.S. at 250.

B. Analysis

Defendants raise the affirmative defense of qualified immunity. Government officials are entitled to qualified immunity from civil damages so long as "their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). In other words, a government official is entitled to qualified immunity when 1) the plaintiff has not demonstrated a violation of a constitutional right, or 2) the court concludes that the right at issue was not clearly established at the time of the official's alleged misconduct. Pearson v. Callahan, 555 U.S. 223, 232, 236 (2009). The court may proceed directly to the clearly established prong without first resolving whether the plaintiff has established a constitutional violation. Id.

In determining whether the right at issue was clearly established, the court must define "the right allegedly violated ... at the appropriate level of specificity." Wilson v. Layne, 526 U.S. 603, 615 (1999). This does not mean that "the exact conduct at issue [must] have been held unlawful for the law governing an officer's actions to be clearly established." Amaechi v. West, 237 F.3d 356,362 (4th Cir. 2001). Rather, the court's analysis must take into consideration "not only already specifically adjudicated rights, but those manifestly included within more general applications of the core constitutional principle invoked." Id. at 362-63 (quotation marks). The right allegedly abridged is "clearly established" for qualified immunity purposes if

[t]he contours of the right [are] sufficiently clear that a reasonable official would understand that what he is doing violates that right. That is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, but it is to say that in light of pre-existing law the unlawfulness must be apparent.

Anderson v. Creighton, 483 U.S. 635, 640 (1987) (citation omitted).

1. Defendants Dorn and Bettis

Defendants Dorn and Bettis provided a recommendation to the assigned prosecutor that plaintiff not receive a plea offer in his then-pending prosecution for drug and weapon offenses because plaintiff filed a civil rights action against the Jacksonville police department. Plaintiff alleges these actions violated his First Amendment right to be free from retaliation for filing civil lawsuits.

Plaintiff has a First Amendment right "to appeal to courts and other forums established by the government for resolution of legal disputes."...