United States District Court, E.D. North Carolina, Eastern Division
NORMAN H. SHACKLEY, JR., Plaintiff,
GREENVILLE POLICE CHIEF HASSAN ADEN, both in personal and official capacities, et al., Defendants.
JAMES C. FOX, Senior District Judge.
This matter is before the court upon the Motions to Dismiss [DE-12; DE-18] filed by Defendants Greenville Police Chief Hassan Aden, Greenville Police Officers Matthew McKnight, Grimsley, and LeCompte, and the City of Greenville (collectively, "the Greenville Defendants"). Also before the court is Plaintiff Norman H. Shackley, Jr.'s Motion to Dismiss his claims against Defendant Chris Fidler [DE-34]. For the reasons stated herein, the Motion to Dismiss the Original Complaint is DENIED as moot, the Motion to Dismiss the Amended Complaint is DENIED in part, and the Motion to Dismiss the claims against Chris Fidler is ALLOWED.
I. PROCEDURAL BACKGROUND
Plaintiff initiated this action by filing a Complaint [DE-1] in this court on March 22, 2013, alleging three claims under § 1983 arising from various actions of Greenville City police officers. The Greenville Defendants responded by filing a Motion to Dismiss [DE-12] the Complaint on the basis of lack of jurisdiction, insufficient process, insufficient service of process, and failure to state a claim.
Plaintiff promptly filed an Amended Complaint [DE-15], which reiterates much of the original Complaint, but adds a claim against Defendant Chris Fiddler, a North Carolina Department of Revenue Agent. The Greenville Defendants again moved to dismiss the Amended Complaint [DE-18].
Plaintiff thereafter responded to the motion to dismiss the original complaint [DE-28], and the Greenville Defendants filed their reply [DE-29]. Plaintiff then filed a response to the motion to dismiss the amended complaint [DE-30]. Plaintiff then filed a Motion to Dismiss [DE-34] his claims against Defendant Fidler.
On August 30, 2013, Plaintiffs counsel, David Sutton, filed a motion to withdraw as counsel in this matter [DE-34] which this court allowed [DE-36]. The court directed Plaintiff to file a notice of his intention to proceed prose, or cause new counsel to file a notice of appearance on or before October 4, 2013 [DE-36]. The record reflects that this order was sent by mail to Plaintiff, but was returned as undeliverable [DE-37]. Plaintiff did not file a response by October 4, 2013, although the Clerk of Court did advise the court that Plaintiff called the Clerk's office on November 1, 2013, inquiring about the case. Plaintiff filed a Notice of Change of Address on December 23, 2013 [DE-38], which this court interprets as his notice of intention to proceed pro se.
When the court was drafting the instant order, the Greenville Defendants filed a "Death Notification" [DE-39], stating that Plaintiff was found dead by law enforcement on February 10, 2014.
II. FACTUAL BACKGROUND
The facts alleged in the Amended Complaint, take in the light most favorable to Plaintiff, show the following.
Plaintiff alleges he was arrested on January 29, 2013 for the misdemeanor charge of impersonating a police officer and placed under a $100, 000 cash bond. Amend. Compl. [DE-15] ¶ 8. He asserts that his arrest was without probable cause, despite being made pursuant to a warrant. Id .; see also Defs. Exs. [DE-14-1] p. 3 (Warrant for Arrest 13CR050988). He subsequently was placed under a $100, 000 cash bond, although no written findings were entered. Id. As a condition for getting his bond reduced, Plaintiff caused his ex-wife, on January 31, 2013, to voluntarily surrender to the Greenville Police Department certain guns and ammunition belonging to him. Id. ¶ 9. A trial was held on the charge of impersonating a police officer on March 7, 2013, at which time Plaintiff asserts the bond become void. Id. Plaintiff was found guilty of the offense. See Defs. Ex. [DE-14-1] p. 4. Plaintiff asked the Greenville City Attorney, the District Attorney, and Aden to return the guns and ammunition. Id. He contends that the City of Greenville refused to release the property to his then-attorney, who presented a valid power of attorney. Id.
Plaintiff further alleges that on March 5 and 6, 2013, search warrants were executed for his property. He alleges the search warrants "are devoid of probable cause" and "were improperly executed." Id. ¶ 10. He contends Defendant McKnight "obtained the search warrants and.. executed them." Id.
Plaintiff also alleges that he was arrested on March 5, 2013, by Defendant Grimsley for the felony charge of intimidating a witness, extortion and common law obstruction of justice. Id. ¶ 11. Plaintiff again alleges that he was arrested without probable cause, despite being arrested pursuant to a warrant. See Defs. Exs. [DE-14-1] pp. 5, 9. Plaintiff alleges he "was given no bond on one charge and $100, 000 on another" with no written findings. Id.
A few days later, Plaintiff was arrested by Defendant McKnight for felony possession with intent to sell or distribute steroids, along with other crimes. Id. ¶ 12. Plaintiff alleges that "[t]he drugs' were never tested, had been seized pursuant to an illegal search warrant (that lacked probable cause) and the arrest was completely lacking in probable cause as well." Id. Again, the arrest was pursuant to a warrant. See Defs. Exs. [DE-14-1] p. 13. His bond was set at $100, 000, and he again asserts that no written findings were made. Id.
On March 7, 2013, Defendant LeCompte arrested Plaintiff for 17 misdemeanors dating from April of 2012. Id. ¶ 14. Plaintiff alleges that LeCompte had previously "obtained and executed an invalid search warrant (lacking in probable cause because it says a person in camouflage committed the vandalism)." Id. Plaintiff alleges that "LeCompte's personal distaste for [Plaintiff] ...