Sullivan v. McCrory

LTC DONALD SULLIVAN, Plaintiff, v. PAT MCCRORY, et al., Defendants.

No. 7:16-CV-46-D

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

December 15, 2016

ORDER

On March 18, 2016, Lt. Col. Donald Sullivan ("plaintiff" or "Sullivan"), proceeding pro se, filed a complaint under 42 U.S.C. §§ 1983 and 1985 and North Carolina law against twelve defendants, including North Carolina Governor Pat McCrory, North Carolina Attorney General Roy Cooper, New Hanover County District Attorney Ben David and Assistant District Attorney Lindsay Roberson, New Hanover County Sheriff Ed McMahon, Wake County District Attorney Lorrin Freeman, and several members of the North Carolina Highway Patrol. Compl. [D.E. 1]. All defendants have filed motions to dismiss the complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and/or (6) [D.E. 7, 16, 20]. Pursuant to Roseboro v. Garrison, 528 F.2d 309, 310 (4th Cir. 1975) (per curiam), the court notified Sullivan about the motions, the consequences of failing to respond, and the response deadlines [D.E. 9, 22]. Sullivan moved to amend his complaint and requested a stay on responding to defendants' motions until the court ruled on the motion to amend [D.E. 19]. On October 11, 2016, me court granted Sullivan's motion to amend, and directed Sullivan to file any response in opposition to the motions on or before October 24, 2016 [D.E. 35]. Sullivan chose to file a second motion to amend in lieu of any response in opposition [D.E. 36]. Defendants responded in opposition to that motion [D.E. 37-38], and Sullivan replied [D.E. 39-40]. As explained below, the court grants plaintiff's second motion to amend and grants defendants' motions to dismiss.

I.

As for Sullivan's second motion to amend, Sullivan seeks: "1) [t]o correct an oversight in the caption [to include an additional member of the State Highway Patrol, Major J.A. Cotton, as a defendant]; 2) to eliminate the claims for damages; and 3) to replace said damage claims with administrative remedies." Pl.'s Replies in Supp. 2d Mot. to Amend [D.E. 39-40] 1-2; see Compl. ¶ 12 (naming Cotton as a defendant); 2d Mot. to Amend [D.E. 36] 1. Thus, Sullivan's proposed amendment does not materially change either his factual allegations or the pending motions. See [D.E. 16] 1; [D.E. 38] 2. The court therefore grants Sullivan's second motion to amend.

Sullivan's complaint arises out of a traffic stop and citation which occurred on March 20, 2013. Compl. ¶ 23. Sullivan was driving "on a sparsely traveled country road" when he "approached flashing blue lights from three State Highway Patrol units[.]" Id. Sullivan did "not see[] any signs of a license checking station;" therefore he did not stop until "one of the troopers yelled for" him to do so. Id.

Defendant Phillips, a North Carolina Highway Patrolman, approached Sullivan's vehicle and asked for his driver's license, which Sullivan produced. Compl. ¶ 23. Phillips recognized Sullivan "from a previous incident years earlier" and asked whether Sullivan was a "sovereign" and had a gun in the vehicle. Id. ¶¶ 23-24. Sullivan indicated that he had a gun in a holster on his hip and "made the apparent mistake of tapping [his] thigh and looking toward the sidearm." Id. ¶ 24. Phillips "then went ballistic, pulled out his sidearm and pointed it at [Sullivan's] face through the open window" while commanding Sullivan to place his hands outside the window and "began yelling in a veryfrightened voice to the other officers" for assistance and informed the other officers that Sullivan had a gun and was "a 'sovereign.'"¹ Id.

Sullivan contends that he "remained very still" and compliant with all of Phillips's orders, while Phillips "looked really out of control. His hand was shaking like a leaf, and his finger was on the trigger." Compl. ¶ 26. Defendants Maness and Kirk "ran to assist Phillips who apparently thought he needed help." Id. ¶ 27. All three defendants kept their guns pointed at Sullivan's face while ultimately removing Sullivan from his vehicle, handcuffing him, confiscating his "seven hundred dollar sidearm, magazines and ammunition[,]" and searching Sullivan's vehicle without requesting Sullivan's consent and over his objections. Id. ¶¶ 28-33.

Phillips issued Sullivan a misdemeanor citation for carrying a concealed weapon. Compl. ¶ 35. On September 17, 2013, the New Hanover County District Court dismissed the charge "due to [Sullivan's] objection to a trial on a citation[.]" Id. ¶ 36. An assistant district attorney issued "a 'Statement of Charges'" to retry the case, and on October 14, 2013, "the charge was again dismissed by the court after [defendant] Assistant District Attorney Roberson had presented her entire case; and [Sullivan] had cross-examined her witness[,]" defendant Phillips. Id. Defendants Roberson and David again refiled the charge against Sullivan "on a 'Misdemeanor Criminal Summons[.]'" Compl. ¶ 37. The court rescheduled the hearing several times between December 2013 and November 2014.Id. ¶¶ 37, 40. "In the meantime, unknown to [Sullivan] and for reasons unknown to [Sullivan], upon information and belief, David had presented the charge to the grand jury, with Phillips again allowed to testify. The grand jury issued an indictment based upon Phillips's perjured testimony, which moved the case to superior court." Id. ¶ 40. After several motions hearings and other court appearances, and further continuances of the trial between November 2014 and July 2015, an assistant district attorney other than defendant Roberson informed Sullivan that she had "decided to dismiss [the] case having determined that the state was barred from prosecuting [Sullivan] due to double jeopardy having attached." Id. ¶¶ 41-48. On July 9, 2015, defendant Pope returned Sullivan's property seized during Sullivan's arrest. Id. ¶ 50.

Sullivan contends that defendant Phillips "committed . . . several acts of criminal perjury by repeatedly lying about the events of 3-20-13 under direct and cross examination." Compl. ¶ 36. Between October 2013 and January 2016, Sullivan repeatedly and unsuccessfully attempted to pursue criminal perjury charges against Phillips. See id. ¶¶ 36-39, 50-67. Sullivan's efforts included meetings with defendants David, Pope, and a deputy sheriff in defendant McMahon's office, a written complaint "to the DPS-State Highway Patrol Internal Affairs . . . office[,]" and extensive correspondence with the offices of defendants David, McCrory, Cooper, and Freeman. Id. & Exs. [D.E. 1-1 through -7] (copies of letters Sullivan sent to various defendants and others). Defendants Cotton and Pope closed their investigations. Id. ¶¶ 38, 50. Defendants David and Freeman declined to proceed with any criminal charges against Phillips. See id. ¶¶ 53-55, 66. A captain in the New Hanover County Sheriff's Department, under the supervision of defendant McMahon, met with Sullivan but declined to "investigate another state agency" and "said his office would not take [Sullivan's] report, an obvious denial of [Sullivan's] right to the due process of the law and equal treatment under the law." Id. ¶ 51. A representative from McCrory's office informedSullivan "that the governor's office lacked jurisdiction to do anything to help." Id. ¶ 52. Defendant Cooper did not respond to Sullivan's letters. Id. ¶¶ 39.

Sullivan asserts violations of 42 U.S.C. §§ 1983 and 1985 and the North Carolina Constitution. Compl. ¶¶ 71-80. Sullivan sues all defendants in their individual and official capacities and seeks "sanctions" and injunctive relief. Compare Compl. ¶¶ 59-60, 76, 81 with Pl.'s 2d Mot. to Amend [D.E. 36] 2-3.

II.

A motion to dismiss under Rule 12(b)(1) of the Federal Rules of Civil Procedure tests subject-matter jurisdiction, which is the court's "statutory or constitutional power to adjudicate the case." Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 89 (1998) (emphasis omitted); see Holloway v. Pagan River Dockside Seafood, Inc., 669 F.3d 448, 453 (4th Cir. 2012). A federal court "must determine that it has subject-matter jurisdiction over [a claim] before it can pass on the merits of that [claim]." Constantine v. Rectors & Visitors of George Mason Univ., 411 F.3d 474, 479-80 (4th Cir. 2005). Sullivan, as the party asserting that this court has subject-matter jurisdiction, must prove that subject-matter jurisdiction exists. See, e.g., Steel Co., 523 U.S. at 104; Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir. 1999); Richmond, Fredericksburg & Potomac R.R. v. United States, 945 F.2d 765, 768 (4th Cir. 1991). In considering a motion to dismiss for lack of subject-matter jurisdiction, the court may consider evidence outside the pleadings without converting the motion into one for summary judgment. Evans, 166 F.3d at 647.

A motion to dismiss under Rule 12(b)(6) for "failure to state a claim upon which relief can be granted" tests whether the complaint is legally and factually sufficient. See Fed. R. Civ. P. 12(b)(6); Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); Coleman v. Md. Ct. of Appeals, 626 F.3d 187, 190 (4th Cir. 2010), aff'd, 132 S. Ct.1327 (2012); Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008); accord Erickson v. Pardus, 551 U.S. 89, 93-94 (2007) (per curiam). In considering a motion to dismiss, a court need not accept a complaint's legal conclusions drawn from the facts. See, e.g., Iqbal, 556 U.S. at 678. A court also "need not accept as true unwarranted inferences, unreasonable conclusions, or arguments." Giarratano, 521 F.3d at 302 (quotation omitted); see Iqbal, 556 U.S. at 678-79. Moreover, a court may take judicial notice of public records without converting a motion to dismiss into a motion for summary judgment. See, e.g., Fed. R. Evid. 201; Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007); Philips v. Pitt Cty. Mem'l Hosp., 572 F.3d 176, 180 (4th Cir. 2009).

A.

Defendants assert...