Thurston v. Avery Cnty. Sheriff's Office

DAVID M. THURSTON, Plaintiff, v. AVERY COUNTY SHERIFF'S OFFICE et al., Defendants.

1:19-cv-299-MOC-WCM

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NORTH CAROLINA ASHEVILLE DIVISION

March 22, 2021

ORDER

THIS MATTER comes before the Court on a Motion for Summary Judgment by Defendants Avery County Sheriff's Office, Avery County Sheriff Kevin Frye, and Avery County Sheriff's Lieutenant Lee Buchanan. (Doc. No. 13).

I. BACKGROUND

A. PROCEDURAL BACKGROUND

Plaintiff David M. Thurston filed this action on October 21, 2019, asserting claims against Defendants in connection with his arrest and prosecution for allegedly violating North Carolina sex offender laws. (Doc. No. 5). The charges were later dismissed in favor of Mr. Thurston. (Doc. No. 5 at ¶ 94). Plaintiff has named the following persons and entities as Defendants in this action: (1) Avery County Sheriff's Office ("ACSO"); (2) Avery County Sheriff Kevin Frye; and (3) Avery County Sheriff's Lieutenant Lee Buchanan ("Lt. Buchanan"). Sheriff Frye and Lt. Buchanan are sued in their official and individual capacities.

Mr. Thurston asserts a claim under 42 U.S.C. § 1983, alleging that Defendants violated his federal constitutional rights by way of his arrest and prosecution. (Doc. No. 5 at ¶¶ 81-92). Specifically, Mr. Thurston alleges that Defendants violated his Fourth Amendment right to be free from unreasonable seizure and false arrest.¹ Mr. Thurston asserts the following claims: First Claim, 42 U.S.C. § 1983 claim alleging procedural and substantive due process violations (Doc. No 5 at ¶¶ 81-92); Second Claim, Malicious Prosecution (Doc. No. 5 at ¶¶ 93-100); Third Claim, False Imprisonment and Actual Imprisonment (Doc. No. 5 at ¶¶ 101-107); Fourth Claim, Intentional Infliction of Emotional Distress (Doc. No. 5 at ¶¶ 108-113); Fifth Claim, Negligent Infliction of Emotional Distress (Doc. No. 5 at ¶¶ 114-120); and Sixth Claim, Assault and Battery (Doc. No. 5 at ¶¶ 121-168). Plaintiff seeks compensatory and punitive damages, as well as attorney's fees. (Doc. No. 5).

Defendants timely filed their Answer, (Doc. No. 7), denying Mr. Thurston's material allegations and asserting numerous affirmative defenses, including qualified immunity and governmental immunity. On November 25, 2020, Defendants filed their Motion for Summary Judgment. (Doc. No. 13). On December 23, 2020, Plaintiffs filed a Response in opposition (Doc. No. 19). Defendants filed a Reply on December 29, 2020. (Doc. No. 24). The Court held a hearing on the motion on February 9, 2021.

B. FACTS

i. Mr. Thurston's Sex Offender History and Move to Avery County

In 1992, Mr. Thurston pled guilty to two counts of sexual assault involving underagechildren in Montana. (DT 11:17-21; 12: 1-9).² He moved to Avery County, North Carolina in March 2015. (DT 17:15-18). Frye was the Avery County Sheriff, and Lt. Buchanan was employed as a Captain by the Sheriff's Office. (KF 6:11-15);³ (LB 6:22-25; 7:1-5).⁴ In 2016, Lt. Buchanan handled the Sheriff's Office sexual offender registrations. (LB 8:25; 9:1-2; 40:12-24).

Under North Carolina law, individuals with "reportable convictions" are subject to sex offender registration and verification requirements. See N.C.G.S. Ch. 14, Art. 27A. Mr. Thurston acknowledged that he was required to register as a sex offender in North Carolina based on his Montana conviction. (DT 34: 9- 13); N.C.G.S. § 14-208.6 (4)(b) (final conviction in another state "substantially similar to an offense against a minor" in North Carolina is a "reportable conviction").

When he arrived in Avery County, Mr. Thurston came to the Sheriff's Office on March 12, 2015, and was informed about the requirements for individuals on the North Carolina sex offender registry. (DT 20: 12-25; 22: 5-16; 23: 16-23). Mr. Thurston was informed that he had a duty to register with the Sheriff's Office every year and then every six months after the first year. (DT 21: 22-25; 22: 1-3; DT Exhibit 1); N.C.G.S. § 14-208.9A(a)(1) (noting that registration shall be verified on the "anniversary of a person's initial registration date, and again six months after that date."). He was also informed that the North Carolina Department of Public Safety ("NCDPS") would send him a verification letter that he was required to return to the Sheriff's Office within three days after receipt. (DT 22: 2-4; DT Exhibit 1); N.C.G.S. §§ 14-208.9A(a)(1)-(2) (person shall return verification form within three days of receipt). He was further notifiedthat he needed to inform the Sheriff's Office if he changed his address. (DT Exhibit 1).

ii. David Thurston seeks Sheriff Frye's permission to travel out-of-state for several weeks and receives permission to take the trip.

On August 9, 2016, Mr. Thurston contacted Sheriff Frye and informed him that he wanted to leave the state on August 11 to attend his nephew's wedding in Washington State and asked whether he would be able to go. (DT 107: 10-24; 108: 19-22); (KF 13: 17-24; 16: 23-25). Mr. Thurston sought permission to attend the wedding because traveling out west for a wedding scheduled for September 17, 2016, would prevent him from being able to submit his bi-annual verification form in person on September 12, 2016. (TA at ¶ 22).⁵ He also sought permission because he feared the ACSO, after experiencing threats and intimidation from several officers the prior year. (TA at ¶¶ 6-20).⁶ Mr. Thurston not only sought permission from Sheriff Frye before traveling, he also sought legal advice about the trip at the Appalachian Law Center and went in person to the Avery County District Attorney's Office. (TA at ¶ 22).

Following these inquiries, Sheriff Frye informed Mr. Thurston that he was looking into the request. (TA at ¶ 23). After several text messages were exchanged between Mr. Thurston and Sheriff Frye, the Sheriff responded to Mr. Thurston on August 11 granting him permission to take the trip. In response to a text from Mr. Thurston asking for an update on whether he could travel to the wedding, Sheriff Frye responded, "Go on, we are working on it." (KF 16: 3-6; 17: 1-8; KF Exhibit 3). Sheriff Frye also told Mr. Thurston to fill out a visitor registration form andemail a copy of that registration to him within 10 days of arriving in Spokane. (DT 111: 14-22). This was all Sheriff Frye told Mr. Thurston he needed to do to take the trip. The precise length of the trip was not discussed, but the context of the conversations indicates that it was clear that this trip would last several weeks. These conversations make clear that "Sheriff Frye gave express permission to Thurston to travel to Washington State, prior to his departure date." (See SC at ¶ 10).⁷

On August 15, while Mr. Thurston was on his way to Spokane, Sheriff Frye texted Mr. Thurston and asked him for the address where he would be staying. (TA at ¶ 25). Sheriff Frye told Mr. Thurston that he needed the address to put Mr. Thurston on "pending status" so that "it will not flag at SBI." (TA at ¶ 25). Mr. Thurston texted Frye the requested information. (TA at ¶ 25; KF, Exhibit 3). When Mr. Thurston arrived in Spokane, Mr. Thurston registered as a visitor as instructed and texted and emailed Sheriff Frye photographs of the paperwork. (Doc. No. 21, Exhibit 8). Sheriff Frye acknowledged receipt of these documents. (Id.).

Mr. Thurston left Avery County on August 11, 2016, and returned on October 19, 2016, with stops in Denver, Spokane, and Seattle. (DT 50: 25; 51: 1-2; 53: 7-17; 59: 2-24; 60: 1-10; 61: 13-16).

iii. David Thurston is mailed a verification form, requests further guidance, and is urged to return to Avery County by October 19.

Pursuant to N.C.G.S. § 14-208.9A(a)(1), Mr. Thurston's six-month registration date was September 12, 2016. (DT 22: 11-16). On September 9, Mr. Thurston's sister informed him that the NCDPS mailed a verification letter to him. (DT 29: 16-25). Mr. Thurston contacted SheriffFrye on September 9 about how to return the verification form, but he never responded. (DT 29: 24-25; 30: 1-10); (KF, Exhibit 3). Since Mr. Thurston received no response, he "let it lie" and candidly admitted that he failed to return the verification form by his six-month registration date. (DT 44: 12-21). However, it is important to note that one of the main reasons Mr. Thurston sought Sheriff Frye's permission to travel out west in the first place was he knew that taking the trip would mean that he would not be able to return the verification form in person as required.

On October 6, Mr. Thurston received a phone call from Detective Simmons with the Spokane County Sheriff's Office and was informed that Lt. Buchanan from Avery County was looking for him. (TA at ¶ 29). Detective Simmons relayed to Mr. Thurston that Lt. Buchanan was considering having the U.S. Marshal Service arrest him. (TA at ¶ 30). However, Detective Simmons advised that as long as Mr. Thurston was gone by October 10, there would be no problem. (TA at ¶ 30). Furthermore, Detective Simmons contacted the U.S. Marshal's Office and was informed that they considered Mr. Thurston in compliance with federal law. (TA at ¶ 31).

Confused by his conversation with Detective Simmons, Mr. Thurston reached out to Lt. Buchanan to seek clarification and guidance on how to proceed. (TA at ¶ 32). On that phone call, Lt. Buchanan told Mr. Thurston, without any legal support, that Mr. Thurston could not be out of state for more than 30 days. (TA at ¶ 32). He also told Mr. Thurston that Mr. Thurston's absence was causing trouble for Sheriff Frye. (TA at ¶ 32). On this call, Mr. Thurston informed Lt. Buchanan that he had received permission for the trip from Sheriff Frye. (TA at ¶ 34). Mr. Thurston then asked if would be able to drive back to Avery County or if he would be arrested on the way. (TA at ¶ 37). Lt. Buchanan noted that he had spoken to Sheriff Frye, and if Mr. Thurston was back in Avery County by October 19, then "there would be no problem" and he would not put out a national warrant for Mr....