WALKER v. J.P. THOMAS & CO. INC. et al, No. 1:2014cv00738 - Document 51 (M.D.N.C. 2015)
Court Description: MEMORANDUM OPINION AND ORDER signed by MAG/JUDGE JOE L. WEBSTER on 09/29/2015. For the reasons stated herein, IT IS HEREBY ORDERED that Plaintiff's motion to compel discovery (Docket Entry 35 ), motion to compel witness fees (D ocket Entry 42 ), and motion to supplement the Complaint (Docket Entry 37 ) are all DENIED. FURTHER that Defendants' motion for summary judgment (Docket Entry 45 ) be GRANTED and Plaintiff's motion for summary judgment (Docket Entry 29 ) be DENIED, and this action be DISMISSED WITH PREJUDICE. A Judgment dismissing this action will be entered contemporaneously with this Order.(Taylor, Abby)
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WALKER v. J.P. THOMAS & CO. INC. et al Doc. 51 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA RUSSELL F. W,{LI3R, Plaintiff, V J.P. THOM,{S & CO., INC., et aI., Defendants ) ) ) ) ) ) ) ) ) 1,:1,4CY738 MEMORANDUM OPINION AND ORDER OF UNITED STATES MAGISTRATE JUDGE This mattet is before the Court upon Plaintiff Russell F. Walker's motion fot to compel discovery @ocket Entry 35), motion to supplement the complaint (Docket Entty 37), motion to compel witness fees srrrnmary judgment (Docket E.rtry 29), motion (Docket E.rtty 42), and Defendants Town of North Caroltna and Officer JJ '{.berdeen, Smith's motion for summary judgment (Docket Entry 45). All motions are ripe fot disposition.l For the reasons stated herein, the Court will gtant Defendants' motion for summary judgment and deny the temaining motions. I. Bacþround Plaintiff, pro se, filed this action against Defendants J.P. Thomas & Company, Inc ("Thomas Tire"), the Town of Ä.berdeen, Notth Catolina, and Officer JJ. Smith ("Offìcer Smith") alleging a violation of his civil rights due to the wtongful issuance of citations. I By Ordet of Reference, this mtter was referred to the Undersigned to conduct all proceedings in this case pursuant 28 U.S.C. $ 636(c). (Docket Enry 34.) I Dockets.Justia.com (Complaint, Docket Entty 2.) ccotding to the Complaint, on May 23, 201.4, Plaintiff backed his vehicle into a parked vehicle in the patking lot of Thomas Ti-te. (Id. n l.) Plaintiff inspected the other vehicle, did not notice any other darnage, and left the scene. (Id.) Ãn employee of Thomas Tire called the Aberdeen Police Department"in an attempt to insute that Thomas's customer was paid fot any damage to its customer's car." Qd.n 9.) Aftet Plaintiff atdved home, he received a phone call from Officer Smith who informed Plaintiff that he would be charged for violation of the "Hit-and-Run" statute after leaving the scene of an accident without noti$ring the owner of the other vehicle. (Id. 11 10.) Plaintiff immediately returned to Thomas Tite and gave Offìcer Smith his information, including Plaintiffls "driver's license number, date of birth, [and] insutance details . . . ." (Id. ï 11.) Officer Smith charged Plaintiff with two misdemeanors: N.C. Gen. Stat. $ 20-166 and N.C. Gen. Stat. S 20-154. (Id.11 1,2.) Plaintiff alleges that "[t]he issuing of citation was a violation of the Civil Rights of the plaintiff as there was no conduct which could be violation of p^tt." (Id. Noth a Caroltna law as there was no willfulness nor mens rea on fPlaintiffs] n 1,5.) Plaintiff seeks monetary damages, seeks to enjoin the berdeen Police Department ftom issuing any futher citations undet N.C. Gen. Stat. $ 20-1.66, and seeks to declare this statute unconstitutional as a violation States of the Fifth Amendment of the United Constitution. Qtl. 1l1l 1.7-1,9.) He also requests that the Coutt exetcise pendant judsdiction over his state law claims. Qd.1120.) On December 8, 12(bX1) and 12þ)(6) 201,4, Thomas Tke filed a motion to dismiss pursuant to Rules of the Federal Rules of Civil Procedure. (Docket Entty 1,7.) The it. (See Court theteafter gtanted Thomas Tire's motion dismissing PlaintifÎs claims against 2 Otder dated Jan. 8,201,5, Docket Etrtty 26.) OnJanuary 20,2015, Plaintiff filed the pending motion for summary judgment. (Docket E.ttty 29.) Plarnttff later fìled the pending motions to compel discovery, to supplement the complaint, and to compel witness fees. @ocket Entdes 35, 37, 42.) On July 15, 2015, Defendants filed a motion fot summary judgment. (Docket Entry 45.) II. Discussion Summary judgment is apptopriate when thete exists no genuine issue and the moving party is entided to judgment as a matter of Zabodnick u. of material fact law. Fed. R. Civ. P. 56(c); Int'l Bas. Mach¡. Corþ., 135 F.3d 91.'1,, 91.3 (4th Cir. 1997). The patty seeking summaty judgment beats the initial burden of coming forwatd and demonsttating the absence of a genuine issue of matetial fact. Tenkin u. Frederick Coanfl Comm'rs, 945 tr.2d 716, 71,8 (4th C1r. 1991) (citing Celotex u. CatreÍt,477 U.5.31,7,323 (1986). Once the moving patq has met its butden, the non-moving party must then affitr,rrau.vely demonstrate that thete is a genuine issue of matedal fact which requires tÅal. Mat¡ushita Elec. Indas. Co. Ltd. Zenith Radio Corþ., 475 U.S. 574, 587 (1986). Thete u. is no issue for tdal unless there is sufficient evidence favoting the non-moving p^fty for a fact finder to return a verdict for that party. Ander¡on u. Liber'fl I-^obþt, 1nc.,477 U.5.242,250 (1,986); Slluia Deu. Corp. u. Caluert Coanfl, Md.,48 F.3d 810, 81.7 (4th Cir. 1995). Thus, the movingpaLtq cant:,ear his burden either by ptesenting affrmative evidence or by demonsttating that the non-moving party's evidence is insuffìcient to establish his claim. Celotex,477 U.S. at331, (Btennan, dissenting). When making the summary judgment determination, the court must view the evidence, and all justifiable inferences ftom the evidence, in the light most favorable to the non-moving J p^try. Zahodnit'k,135 F.3d at 91.3; Haþerin u. Abam¡ Tech. Corp., 128 F.3d'191,, 1,96 (4th Cir. 1,997). Moreover, "once the moving patty has met his butden, the nonmoving party must come forwatd with some evidence beyond the mere allegations contained in the pleadings to show there is a genuine issue fot tital." Baber u. HoQ. Corp. of Am.,977 F.2d872,874-75 (4th Ctr. 1,992). The non-moving patry may not rely on beliefs, conjectute, speculation, or conclusory allegations to defeat a motion for summary judgment. Id. The non-movant's proof must meet the substantive evidentiary standard of ptoof that would apply at a tnal on the merits. Mitchell u. Data Gen. Corp., 12 tr.3d 131,0, 1,31,6 (4th C1r. 1.993), modified on other grounds, Sto,ke¡ u. Il/estinghoa¡e Sauannah Nuer Co., 420, 429-30 (4th Cit. 2000); DeL¿on u. St. Jo:eph Ho,p., Inc., 87 1. F.2d'',t229, 1233 n.7 (4th Cir. 1989). Defendants' Motior¿ to Di¡ mi¡¡ ,{.. Officer Smith Defendant Smith flrst asserts that he is entitled to surnmary judgment in his individual capacity based upon qualifìed immunity. The Coutt must considet two questions when ruling on qualified immunity' "(1) whether a constitutional or statutory dght would have been violated on the facts alleged by the plaintiff, anð (2) whether the dght assetted was clearþ established at the time of the alleged violation." Ander¡on a. Caldwell Cnry. Sherif : Office,524 F. App'* 854, 860 (4th Cir. 2013) (citing Saøùer u. Kat7,533 U.S. 1,94,200 (2001)). The Supreme Cout has held that qualified immunity protects "^f1 but the plainly incompetent or those who knowingly violate the (1986). Thus, if law." Mallry u. Brigs,475 U.S. 335,341 an offìcial's conduct is "objectionably teasonable," qualified immunity 4 applies. Torchinskl u. Siwinski,942 F.2d 257,261, (4th Cir. 1,991). Moreover, the Fourth Circuit in ComeT u. Atkia¡ states that "qualified immunity ptotects law officets ftom 'bad guesses in gray atea.s,' and it ensures that they may be held petsonally liable only 'for transgressing bdght lines."' GomeT u. Atkins, 296 F.3d 253, 261 (4th Cir. 2002) (citing Maùariello u. Sumnery 973 tr.2d 295,298 (4th Cu.1,992)). The burden of ptoof and persuasion äes with the defendant official under a clatm of qualified immunity. Il/ilson u. Kittoe,337 F.3d 392,397 (4th Cir. 2003). Defendant Smith asserts that he is entitled to qualified immunity based upon the existence of probable cause at the time the citation was issued. Under Notth Catolina law, "þ]tobable cause is defìned as the existence of facts and circumstances known to the decision maker which would induce a reasonable person to commence a prosecution." Mafün u. Parker, 150 N.C. App. 179, 182, 563 S.E.2d 21,6, 21,8 (2002) (citation omitted). Smith issued Plaintiff a citatton under North Catolina's hit-and-run statute, N.C. Gen. Stat. $ 20-166, which provides in patt: The drivet of any vehicle, when the ddvet knows or reasonably should know that the vehicle which the driver is operating is involved in a ctash which results: (1) Q) Only in damage to property; or In injury ot death to any person, but only if the operator of the vehicle did not know and did not have reason to know of the death or injury; shall immediately stop the vehicle at the scene of the crash. If the crash is a tepottable crash, the dtiver shall temain with the vehicle at the scerìe of the ctash until a law enforcement officer completes the investigation of the crash or authorizes the driver to leave and the vehicle to be removed, unless remaining at the scene places the ddvet or others at signifìcant risk of injury. 5 N.C. Gen. Stat. $ 20-1,66(c). ,\dditionally, for damaged property to a parked ot unattended vehicle, "the ddver shall furnish the þsted] officer, or, in the alternative, . information . shall immediately to the nearest avatlable peace place a paper-wtiting containing the informatio n in a conspicuous place upon or in the damaged vehicle." N.C. Gen. Stat. $ 201,66(c1). Based upon the uncontrovetted evidence in the tecotd, the Court concludes that Smith had probable cause to issue the citation to Plaintiff, and his actions were, at minimum, objectionably reasonable undet the circumstances. Plaintiff admits that he backed into patked vehicle which caused damage to the vehicle, and he left the scene without reporting issuance a of the incident it to law enforcement or leaving a note on the vehicle. Thus, Smith's of a citatton was based upon probable cause, and his actions were objectionably teasonable entitling him to qualified immunity. Plaintiff also asserts state law claims fot abuse of process, negligent infliction of emotional distress, intentional infliction of emotion distress, and outrage.2 Smith contends that Plaintiffls claims should be bared under the docrine of public immunity. Under this doctrine, "a public offìcial is fgenerally] immune ftom personal liability for mete negligence in the perfotmance of his duties, but he is not shielded from liability if his alleged actions were corrupt ot malicious or Schloxberg u. Goins, omitted.) "\X/here if he acted outside and beyond the scope of his duties." 141 N.C. Åpp. 436, 445, 540 S.E.2d 49, 56 (2000) (intemal quotation a complaint offers no allegations from which corruption ot malice might North Carohna does not rccogrize causes of action under the tort of outrage. Bargex u. Busby, L42 N.C. ,A.pp. 393,402-03,544 S.E .2d 4,8-9 Q001) (citing BeaslE u. Ilatìonal Sauings Lìfe Ins. C0.,75 N.C. ,\pp. 104, 330 S.E.2d 207(1,985) ("$Øe agree that the tort of outrage has not been tecognized in North Carolina."). 2 6 be inferred, the plaintiff has failed to show an essential [element] of his claim, and summary judgment is apptoptiate." Campbell u. Anderson, 156 N.C. App. 371., 377 , 576 S.F,.2d 726,730 (2003). Thus, to survive surnmary judgment, Plaintiff must make "aþrirnafatzT showing that the defendant-official's tortious conduct falls within one of the immunity exceptionsf.]" Eppt u. Dake Uniu., Inc., 1.22 N.C. App. 198, 205,468 S.E.2d 846, 852 (1,996) (citing Þ-aytteuille Srate Uniu.,102 L.ac'us u. N.C. App. 522,526,402 S.E.2d 862,865 (1991). Based upon the evidence viewed in the light most favorable to Plaintiff, the Court finds that there is no genuine issue of matenal fact ^s to whether Smith acted with malice or corruption. Smith's acts after receiving notifìcation of Plaintiffs conduct wete in fact teasonable, particulatly in light of PlaintifPs concession that he backed into a parked vehicle, that thete was damage to the patked vehicle,3 and that he left the scene without leaving contact information on the vehicle Docket Entty 45-1,.) Even if ot noti$ring Thomas Tire. (Pl.'s Dep. the Court were to conclude, which it ^t 1.4, 18, 22, does not, that Smith's conduct was negligent, Plaintiffs complaint fails to allege facts to infer corruption or malice. Thus, summary judgment is appropdate. B. Town of berdeen ,\lbeit unclear, Plaintiff also appears to assert claims against the Town of ,\berdeen and Officer Smith in his official capacity.a Defendants seek a favonble surnmary judgment ruling as to these claims by asserting that Plaintiff fails to allege unconstitutional policies, 3 Plaintiff states that he originally did not see the damage done to his cat nor the parked vehicle, but concedes that there is no drspute as to the damage incurred. (Pl.'s Dep. at 18, Docket Entry 45-1.) a Plaintiff s official capacity clatrn against Officet Smith is redundant and therefote dismis sed. Cantt u.ll/biraker,203F. S,rpp. 2d503,508 (X4.D.N.C.2002) ajld,57 F.,\pp'x 1,41, (4thCtr.2003). 7 customs or practices by the ,\berdeen Police Departments and its officers. The Court agrees. "Official liability will attach under S 1983 only if executjon of a govetnment's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fai-rly be said to represent oFfìcial policy, inflicts the injury." Id. at 509 (intemal quotations omitted). Section 1983 official capacrty claims may not be based upon the theory of re:pondeat superior. lf,/ellingon u. Daniels,7I7 F.2d 932, 935 (4th alleges one incident; there practices of the Town of Cir. 1983). Here, Plaintiffs Complaint only is no evidence of any unconstitutional policies, customs, or Ä.berdeen or its police depanment. Thus, surnmarT judgment should be gtanted in favot of Defendants. Plaintzfs Motions In his motion for sufiunary judgment, Plaintiff presents thtee "Statement of Questions," but addresses only one argument that he was not guilty o[ violating the hit-and- run statute for several reasons: (1) he went back to the scefle of the incident within 48 hours, Q) h, gave Officer Smith all of his contact infotmation, including insurance information, and (3) Thomas Tire and the car ov/ner had a l¡atIee/batlor relationship. (Pl.'s Pet. at 4, Docket Entty 29.) -Àlthough not fully clea4 Plaintiff appears to argue that thete is no genuine issue of material fact as to whether he violated N.C. Gen. Stat. $ 20-166, thus he is entitled to summary judgment on all claims. To this extent, it is unclear what Plaintiff seeks through this motion as he concedes that all chatges have been dismissed against him. (Itl.n 15.) Moreover, Plaintiff misinterprets N.C. Gen. Stat. S 20-166 to suggest that he did not violate it because he came back to the scene of this incident within 48 hours, complied with Offìcer Smith, and that the "bailment" status of the patked vehicle placed responsibility of 8 the car on Thomas Tire, which akeady had PlaintifPs contact information. The plain language of the statute requires Plaintiff to immediately furnish specifìc information to "the nearest available peace officer," or "place a paper-writing containing the infotmation in a conspicuous place upon or in the damaged vehicle." N.C. Gen. Stat. $ 20-166(c1). To the extent the statute allows repoting of a collision with an unattended vehicle within 48 hours of the incident, it does so only after a ddver leaves a note on the damaged vehicle. a\'o N.C. Gen. Stat. S 20-166.1(c) (The report may be made otally See id.; see ot in wtiting, must be within 48 hours of the accident . . . ."). Here, it is clear, and Plaintiff admits, that he left the scene of the incident without placing a note on the vehicle, and provided contact information only after his interaction with Officet Smith. Thus, Plaintiffls allegations ate simply without metit.s The Court also denies Plaintiffls motions to compel discovery. Plaintiff seeks a discovery order from the Court commanding the Town of Àberdeen to ptovide Officer Smith's personnel record including psychiatric reports. (Docket Er,try 35.) Plaintiff has not indicated why he seeks this information. Courts have recogrttzed strong policy concerns regarding public disclosure of petsonnel files; here, Plaintiff has not shown how these files or reports are "clearly relevant," or that "the need for disclosure is compelling" to the case. Plaintiff does not propedy addtess (in his surnmary iudgment motion) whether N.C. Gen. Stat. $ 20-166 is a violation of his Fifth Ämendment right to be ftee from self-incriminaûon, thus the Court need not address this issue any futher. In any event, the Court notes that the Supreme Court, the Fourth Circuit and the North Carohna Court of ,\ppeals pteviously reiected this argument undet similar hit-and-run statutes. Sæ Caliþrniø u. B1ers,402 U.S. 424, 432 (1,971) ('Disclosure of name and address is an essentially neutral act. Sühatever the collateral consequences of disclosing name and address, the statutory purpose is to implement the state police powef to regulate use of motof vehicles."); Burrell u. Virginia, 395 F'. 3d 508, 51,3 (4th Cncuit) (rejecting similar claims undet Virginia's hit-and-run statute); In re A.N.C., Jr.,225 N.C. Àpp. 3I5, 323,750 S.E.2d 835, 841. reuiew denied,367 N.C. 269,752 S.E.2d 151, Q01,3) (rejecting Fifth Ä.mendment challenge to N.C. Gen. Stat. s s 20-166.). 9 Janu u. Peter Pan Tran¡it Mgnt., lzr:, No. 5:97-CY-747-BO-1., 1,999 WI' 735173, ú x"1.1 (E,.D.N.C. Jan.20,1999) (unpublished); ve al¡o Brown a. SLS Int'/, Inc., No. 3:05 CV 203,2006 lxuT,3694535, at x1 flX/.D.N.C. Dec. 1,3,2006) (unpublished) þlaintiffs need fot disclosute not compelling). r\s to Plaintiffs motion to compel witness fees, Plaintiff cites no authodty for his argument. Other courts addressing this issue have routinely denied such a request. See Delehant u. United Stateq No. 3:10-CV-178-C,201,2 \XlL 6455808, at x3 (D. Ot. Dec. 13, 201,2) (denying request F.R.D. 211, 273 Pennslluania k p. fot witness fees to ^ p^rq plaintiffl; Gìllan u. A. Sfuman, Inc., 31 Alaska 1,962) (disallowing witness fees fot party v/itnesses); Pic,king u. C0.,11 F.R.D. 7'1.,72 (À4.D. Pa. 1951) (denying a party's request for witness fees and mileage). Hete, the Court also denies Plaintiffs request. Lastly, the Coutt denies Plaintiffs motion to supplement the Complaint. (Docket Entty 37.) Plaintiff add 42 U.S.C. S 19S5 as applied to J.P. Thomas & Co., Inc. This defendant seeks only to has been akeady been dismissed from this action. Plaintiffs amendment would be futile in that the allegations in Plaintiffs Complaint fail to allege avaltd S 1985 claim. Johnson u. OroweatFoods C0.,785 F.2d 503,510 (4th Cir. 1936) (Amendment should be denied as futile "when the proposed amendment is cleatly insufficient ot ftivolous on its face."). III. Conclusion For the reasons stated herein, IT IS HEREBY ORDERED that PlaintifFs motion to compel discovery (Docket Entty 35), motion to compel witness fees (DocketEntty and motion to supplement the Complaint (Docket Entry 37) arc all 10 DENIED. 42), IT IS FURTHER ORDERED that Defendants' motion for summary judgment @ocket E.rtty 45) be GRANTED and Plaintiffs morion for summary judgment (Docket Ent y 29) be DENIED, and this action be DISMISSED WITH PREJUDICE. A Judgment dismissing this action will be enteted contemporaneously with this Otdet SO ORDERED. This the 29th day of Septembe\201.5. U 11. L. nØebstet States Magisttate Judge
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