Phillips v. Mabe

367 F.Supp.2d 861

Dan PHILLIPS, Plaintiff, v. Larry MABE, in his personal and individual capacity; Donald Whitt, in his personal and individual capacity, Defendants.

No. 1:04 CV 00198.

United States District Court, M.D. North Carolina.

February 28, 2005.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Alan McSurely, Susan Ashley Osment, Chapel Hill, NC, for Plaintiff.

Donna R. Rascoe, Mark Allen Davis, Raleigh, NC, for Defendants.

MEMORANDUM OPINION

BEATY, District Judge.

I. INTRODUCTION

This matter is a civil rights action arising out of Plaintiff Dan Phillips' ("Plaintiff" or "Phillips") employment as a law enforcement officer who was stationed as a Student Resource Officer ("SRO") at two Chatham County High Schools. Plaintiff's term as SRO took place during the time that Defendant Larry Mabe ("Mabe") was Superintendent of the Chatham County Schools. Plaintiff served as a law enforcement officer under the command of Defendant Donald Whitt ("Whitt"), who was Sheriff of Chatham County until he resigned at the end of November 2000. Plaintiff was fired by Whitt's successor, Sheriff Ike Gray, on January 16, 2001. Plaintiff alleges that Mabe and Whitt violated Plaintiff's constitutional rights under the Fourteenth Amendment's guarantees of equal protection and due process brought pursuant to 42 U.S.C. §§ 1981, 1983, and 1985. Plaintiff further alleges that Mabe and Whitt established a conspiracy to punish Plaintiff, who is white, for wanting to participate in an investigation of a racially hostile environment against black students at Chatham Central High School. In response, Mabe and Whitt have each filed Motions to Dismiss [Document Nos. 8 and 2, respectively] Plaintiff's Complaint. Plaintiff has filed a Response to both of these Motions to Dismiss, and both Mabe and Whitt have filed a Reply. Plaintiff also has filed a Motion to Strike Defendant Whitt's Reply [Document # 17]. Thus, these Motions are ripe for review.

II. FACTUAL ALLEGATIONS

Taking the facts in a light most favorable to Plaintiff, as the Court must do when considering a Motion to Dismiss, the following is an abbreviated account of the record in this case. Plaintiff alleges that he was employed for four and a half years by the Chatham County Sheriff's Department prior to his firing on January 18, 2001. At some point, Plaintiff was assigned by Defendant Whitt to serve as an SRO at Chatham Central High School ("CCHS"), where he was expected to perform criminal law enforcement duties within the school. Just before the May 1999 graduation at CCHS, a series of racially hostile acts were allegedly committed at the school. Pictures of black students with nooses around their necks were drawn in school bathrooms, students celebrated a senior "slave day," and racially hostile pictures were allegedly published in the school yearbook. John Glover, then principal of CCHS, tried to discipline a group of white students. Those students appealed their discipline, and it was overturned. Subsequently, Defendant Mabe as Superintendent of Chatham County Schools demoted Glover from principal to teacher, and transferred him to another school. In response to these actions against Glover, black students and parents organized a county-wide organization called Correcting Racial Injustices for Success in Society ("CRISIS"). This group then complained about Defendant Mabe to the U.S. Department of Education's Office of Civil Rights ("OCR"), which began an investigation into the matter. Defendant Mabe appointed William J. Fowler ("Fowler") as the new principal at CCHS.

In August 1999, Fowler allegedly told Plaintiff that Defendant Mabe had assigned him to the school for the purpose of straightening out the school and not to "take anything off any of these Niggers, but be damn sure before I got rid of them that I built a good case." Plaintiff alleges that in subsequent months, Fowler continued to make racially discriminatory comments to him, which offended Plaintiff. In December 1999, Fowler told Plaintiff that "All Niggers Must Die" had been written on the wall at CCHS, but that he, Fowler, had already erased the statement prior to any photograph being taken. During the following months, Plaintiff told his supervisor, Defendant Whitt, about Fowler's statements and the other acts against black students at the High School. Defendant Whitt allegedly told Plaintiff that he didn't "want to hear a damn thing you have to say." (Pl.'s Compl., at 3.) Also during that winter, investigators from OCR visited CCHS to gather evidence as to the environment, and Plaintiff tried to provide evidence to them as to the environment at the school. Plaintiff alleges that Defendant Whitt learned of Plaintiff's desire to become involved with the OCR investigation and told him to "cease those activities" unless those activities related to law enforcement or investigating a crime. (Id.) Plaintiff alleges that Defendants Whitt and Mabe were aware of Fowler's allegedly racist attitude and did not want OCR to know of it. Plaintiff further alleges that Defendants Whitt and Mabe plotted together to cover up Fowler's actions. Defendants also targeted Plaintiff with a "campaign of intimidation" and ultimately they planned to discharge Plaintiff after OCR's investigation ended. (Id. at 4.)

In the spring of 2000, Defendant Whitt transferred Plaintiff to a different high school. Plaintiff was replaced by David Seagroves ("Seagroves") at the SRO position at CCHS. Fowler allegedly continued making racist comments, but said them to Seagroves and not to Plaintiff. In July 2000, an audiotape containing excerpts of Fowler's voice was given to Rick Givens ("Givens"), the Chair of the Chatham County Commissioners. This tape implicated Fowler in making racist statements. Givens wanted to ask Plaintiff questions about the tape, but was prevented from doing so by orders from Defendant Whitt, who allegedly told Plaintiff that he could not attend a meeting with the County School Board and the County Commissioners that was to discuss this matter. In any case, the result of that meeting was an order by the County School Board to Defendant Mabe to investigate the matter. Defendant Mabe allegedly conducted a superficial investigation, in which he failed to interview any black students, the Plaintiff, or the current SRO, Seagroves. Mabe reported back to the County School Board that there was nothing to the allegations against Fowler. Subsequently, Defendant Mabe learned that Givens had a secret audiotape of Fowler making racist statements. When Mabe failed to take action against Fowler, Givens told other School Board members about the tape and played it for them. Allegedly, on August 25, 2000, after receiving a letter from Defendant Mabe that the action had been fully investigated and appropriate action taken, Givens told Defendant Mabe he was going to involve N.C. Gov. Jim Hunt, N.C. Sen. Howard Lee, and CRISIS leaders in the problem. Defendant Mabe then met with Fowler and agreed that Fowler would request immediate retirement as of September 1, 2000. Defendant Mabe and Fowler also allegedly agreed that Plaintiff would be punished for allegedly making the audiotape of Fowler. This allegedly was accomplished by Defendant Mabe giving the audiotape of Fowler to Defendant Whitt. Mabe, however, but did not ever divulge the tape or its existence to the OCR investigators.

In October 2000, Defendant Whitt began an internal affairs investigation of Plaintiff, and also investigated Seagroves, to determine who had taped Fowler. Plaintiff was interviewed by internal affairs on November 8, 2000 about the audiotape and about Fowler's racist statements to him. Defendant Whitt resigned as Sheriff at the end of November 2000. He was succeeded by Ike Gray ("Gray") as Sheriff. In December 2000, Gray allegedly told a School Board member that he was under pressure to find out who had made the audiotape of Fowler, and that he would punish the responsible person. OCR continued its investigation of CCHS until December 21, 2000, when investigators stated in a letter that due to no more racial incidents at CCHS, there was insufficient evidence to find a violation of Title VI of the Civil Rights Act. OCR allegedly had never been informed of the existence of the audiotape or the disposition of former principal Fowler. On January 18, 2001, Plaintiff alleges that Gray fired Plaintiff for a "pretextual reason." (Id. at 8.)

Plaintiff alleges that Defendants Mabe and Whitt entered into a conspiracy with Gray to have Plaintiff fired, because Plaintiff wanted to speak out against racism at CCHS. Plaintiff alleges he was not fired by Defendant Whitt prior to Whitt's retirement because of Defendant Whitt's fear that Plaintiff would go to the OCR investigators with the audiotape while the investigation was still open. Therefore, Plaintiff alleges that Defendants Mabe and Whitt relied on Gray to finish the conspiracy they had started to punish Plaintiff.

III. MOTION TO STRIKE

Plaintiff has filed a Motion to Strike Defendant Whitt's Reply Brief [Document # 17]. Under Local Rule 7.3(h), a Reply brief must be filed within ten days after service of the Response, and is limited to "discussion of matters newly raised in the Response." In his Motion, Plaintiff argues that Defendant Whitt raised a new issue by titling his Reply Brief "In Support of Defendant Whitt's Motion for Summary Judgment" rather than referring to it as a Reply Brief in Support of Defendant Whitt's Motion to Dismiss. Specifically, Plaintiff objects to Defendant Whitt raising the issue of whether Plaintiff's claims are time-barred and the issue of whether Plaintiff's claims are "sufficient to give rise to a cause of action since they did not constitute a tangible deprivation of Plaintiff's rights." (Pl.'s Mot. Strike, at 3.)

Defendant Whitt filed a Memorandum [Document # 20] opposing Plaintiff's Motion to Strike. Whitt argues in that Memorandum that he inadvertently titled his...