Norton v. Tabron

CALVIN TYRONE NORTON, Plaintiff, v. KEVIN TABRON, in his personal capacityand his official capacity as S.B.I. Special Agentfor the Coastal District of North Carolina;BRENNAN REGNER, in his personal capacityand his official capacity as S.B.I. Special Agentfor the Coastal District of North Carolina;JONATHAN DAVID aka JOHN DAVID, in his personal capacityand his official capacity as District Attorneyfor the 13th Prosecutorial District of North Carolina;DANIEL THURSTON, in his personal capacityand his official capacity as Assistant District Attorneyfor the 13th Prosecutorial District of North Carolina;LEWIS HATCHER, in his personal capacityand his official capacity as Sheriff of Columbus County,North Carolina; ROBBIE SELLERS, in his personal capacityand his official capacity as Lieutenant of Columbus Detention Center;JEFFREY ROSIER, in his personal capacity and his official capacityas Chief of Police of the Whiteville Police Department;AARON HERRING in his personal capacity and his official capacityas Sergeant Detective for the Criminal Divisionof the Whiteville Police Department; STEVEN STRICKLAND,in his personal capacity and his official capacityas Police Officer of the Whiteville Police Department; Defendants.

NO. 7:16-CV-56-BO

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

October 6, 2016

ORDER

This matter is before the Court on motions to dismiss filed by defendants and plaintiff's motions for sanctions. The appropriate responses and replies have been filed and the motions are ripe for ruling.

BACKGROUND

Plaintiff, proceeding in this matter pro se, alleges that on December 5, 2013, an incident investigation report named him as a suspect related to fraud on the estate of Carlos Sutton. Plaintiff claims the incident report was false and not supported by sufficient evidence. Plaintiff alleges that a private forensic analyst was hired by the State Bureau of Investigation (SBI) who opined that a last will and testament was not signed by the decedent but he could not say who signed the document. The District Attorney's Office ultimately determined that there was insufficient evidence to charge plaintiff.

Plaintiff alleges that in October 2014 District Attorney Jon David in an email accused plaintiff of committing forgeries, noting that plaintiff always used the same notary public, and inquired as to whether the State Bureau of Investigation (SBI) could identify a case to prosecute against plaintiff. Plaintiff alleges that on April 20, 2014,¹ defendants Tabron and Regner appeared before a magistrate and misled and gave false testimony in order to obtain six felony warrants against plaintiff for forgery, obtaining property by false pretense, uttering a forgery, and exploitation of an adult with a disability. Plaintiff was arrested on April 22, 2015, and alleges that Detective Ted Dixon of the Whiteville Police Department met with plaintiff after his release and revealed that defendant Rosier was involved in the plot against plaintiff; plaintiff alleges that defendants Rosier, Herring, Strickland, David, Thurston, Hatcher, Sellers, and Regner acted outof bad faith to victimize plaintiff for an improper purpose by tampering with evidence and by removing Detective Dixon's notes and other evidence favorable to plaintiff from the file. Plaintiff alleges that in June 2015 defendants Rosier, Herring, Strickland, David, Thurston, Tabron, Hatcher, Sellers, and Regner gave false testimony to a secret grand jury to cause six felonious indictments to issue. The charges against plaintiff were dismissed by Assistant District Attorney Thurston due to insufficient evidence on December 15, 2015. [DE 1-6].

Plaintiff has alleged causes of action under 42 U.S.C. § 1983 for violation of his rights under the Fourth Amendment, Fifth Amendment, Sixth Amendment, and Fourteenth Amendment to the United States Constitution, and has further alleged claims under North Carolina law for prosecutorial misconduct, defamation, slander, slander per se, libel, and infliction of emotional distress. Plaintiff seeks damages to exceed $10 million. Defendants have each moved to dismiss, separately arguing that the Court lacks subject matter and personal jurisdiction and that plaintiff has failed to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(1); 12(b)(2); 12(b)(6). Defendants have further raised immunity defenses, including absolute prosecutorial immunity, qualified immunity, and public official immunity.

DISCUSSION

Federal Rule of Civil Procedure 12(b)(1) authorizes dismissal of a claim for lack of subject matter jurisdiction. When subject matter jurisdiction is challenged, the plaintiff has the burden of proving jurisdiction to survive the motion. Evans v. B.F. Perkins Co., 166 F.3d 642, 647-50 (4th Cir. 1999). "In determining whether jurisdiction exists, the district court is to regard the pleadings' allegations as mere evidence on the issue, and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment." Richmond, Fredericksburg & Potomac R.R Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991). To thisend, "the nonmoving party must set forth specific facts beyond the pleadings to show that a genuine issue of material fact exists." Id. (citing Trentacosta v. Frontier Pacific Aircraft Indus., 813 F.2d 1553, 1558-59 (9th Cir. 1987)). The movant's motion to dismiss should be granted if the material jurisdictional facts are not in dispute and the movant is entitled to prevail as a matter of law. Id.

Rule 12(b)(2) of the Federal Rules of Civil Procedure authorizes dismissal for lack of personal jurisdiction. When personal jurisdiction has been challenged on the papers alone, the plaintiff must make a prima facie case showing that personal jurisdiction exists, and a court construes all facts and inference in favor of finding jurisdiction. Combs v. Bakker, 886 F.2d 673, 676 (4th Cir. 1989).

A Rule 12(b)(6) motion tests the legal sufficiency of the complaint. Papasan v. Allain, 478 U.S. 265, 283 (1986). When acting on a motion to dismiss under Rule 12(b)(6), "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). A complaint must allege enough facts to state a claim for relief that is facially plausible. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). Facial plausibility means that the facts pled "allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged," and mere recitals of the elements of a cause of action supported by conclusory statements do not suffice. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A complaint must be dismissed if the factual allegations do not nudge the plaintiff's claims "across the line from conceivable to plausible." Twombly, 550 U.S. at 570. Because plaintiff is proceeding pro se, his complaint, "however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam)(quotation omitted). This does not, "however, . . . dispense with the requirement that a pleading contain more than labels and conclusions." Giarratano v. Johnson, 521 F.3d 298, 304 n.5 (4th Cir. 2008)(internal quotation and citation omitted).

I. MOTION TO DISMISS BY DAVID AND THURSTON

District Attorney Jonathan David and Assistant District Attorney Daniel Thurston have moved to dismiss plaintiff's complaint, arguing that the Eleventh Amendment bars any damages action against them as acting in their official capacities and that absolute prosecutorial immunity and qualified immunity further shield them from suit for claims against them in their individual capacities. The Court agrees.

"The Eleventh Amendment bars suit against non-consenting states by private individuals in federal court." Bd. of Trustees of the Univ. of Ala. v. Garrett, 531 U.S. 356, 363 (2001). State officials sued in their official capacity for damages are also protected by Eleventh Amendment immunity. Ballenger v. Owens, 352 F.3d 842, 845 (4th Cir. 2003). Claims against North Carolina district attorneys in their official capacities are plainly claims against state officials and are barred by the Eleventh Amendment. See Nivens v. Gilchrist, 444 F.3d 237, 249 (4th Cir. 2006).

Insofar as plaintiff has alleged claims against defendants David and Thurston in their individual capacities, such claims are barred by absolute prosecutorial immunity. Id. "[I]n initiating a prosecution and in presenting the State's case, the prosecutor is immune from a civil suit for damages under [§] 1983." Imbler v. Pachtman, 424 U.S. 409, 431 (1976); see also State ex rel. Jacobs v. Sherard, 36 N.C. App. 60, 65 (1978). Plaintiff's claims specifically related to defendants David and Thurston concern their investigation of the sufficiency of evidence, their presentation during grand jury proceedings, and plaintiff's right to a speedy trial. [DE 1 ¶ ¶ 29,42, 100]. These actions are protected by absolute immunity. Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993); see also Carter v. Burch, 34 F.3d 257, 263 (4th Cir. 1994) ("presentation of false testimony in court is a charge for which the prosecutor is afforded absolute immunity."); Smith v. McCarthy, 349 Fed. App'x 851, 859 (4th Cir. 2009) (conspiring with police officers to present false testimony protected by absolute prosecutorial immunity); Barefoot v. Goulian, No. 5:08-CT-3162-D, 2010 WL 2696760, at *5 (E.D.N.C. July 7, 2010) (prosecutor absolutely immune from Sixth Amendment speedy trial claim). David and Thurston's actions regarding any alleged exculpatory evidence is further protected by absolute immunity. [DE 1 ¶ 75]; Burns v. Reed, 500 U.S. 478, 486 (1991). David and Thurston's actions are also protected where plaintiff has alleged that the decision to charge...