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Everette v. White

United States District Court, Eastern District of North Carolina, Eastern Division

February 26, 2015



LOUISE W. FLANAGAN, United States District Court Judge.

This matter is before the court on a plethora of motions in the case, initiated by the pro se plaintiff in complaint filed March 4, 2014. These include motions variously filed between May and July, 2014, including: 1) a motion to dismiss or, alternatively, a motion for a more definite statement by defendants Jesse Vann White (“White”) and White’s Wrecking Service, Inc. (“White’s Wrecking”) (DE 43); 2) a motion to dismiss by defendants Princeville Police Department (“Princeville PD”), Town of Princeville (“Town”) and William Anthony Barnes (“Barnes”) (DE 59); and 3) a motion to dismiss by defendant Donyell Weaver (“Weaver”) (DE 65). Collectively, these named defendants are referred to as the “Moving Defendants”. Pursuant to 28 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure 72(b), United States Magistrate Judge Robert B. Jones, Jr. entered a memorandum and recommendation (“M&R”), (DE 83), wherein it is recommended that Moving Defendants’ motions be granted under Rule 12(b)(6), to which plaintiff timely filed objections to the M&R. Two other later filed motions also are before the court, including: 1) plaintiff’s motion for summary judgment (DE 78); and 2) plaintiff’s motion to supplement his motion for summary judgment (DE 84). In this posture, the issues raised on the five motions now pending are deemed ripe for review.

For the reasons stated below, the court denies plaintiff’s motions, adopts the recommendation of the magistrate judge, and grants Moving Defendants’ motions to dismiss. In addition, the court addresses a service issue involving defendant Barnes, in his individual capacity.


Plaintiff, an inmate at Hyde Correctional Institution, commenced this action by filing a complaint March 3, 2014. Order issued April 1, 2014, holding that plaintiff’s complaint would survive frivolity review. A second order issued April 10, 2014, granting plaintiff’s motion to amend his complaint, and plaintiff timely filed an amended complaint alleging violations of the constitutions of the United States and North Carolina.

Plaintiff alleges that, on or around July 4, 2012, defendant White, the owner and operator of defendant White’s Wrecking, towed plaintiff’s 2003 BMW (the “Vehicle”). Plaintiff alleges that he had given consent to Brian L. Perry (“Perry”) to drive the Vehicle, and that the Vehicle was towed by order of the Tarboro Police Department after Perry “went thru a road block and didn’t have proof of Insurance. [sic]” (Am. Compl., 3). After the Vehicle was towed to defendant White’s Wrecking, defendant White did not attempt to notify plaintiff or the North Carolina Department of Motor Vehicles (“DMV”). Instead, on or around September 26, 2012, White sold the Vehicle to defendants Barnes and the Princeville PD. Plaintiff alleges that the sale did not follow the proper procedures set by the Commissioner of the DMV or the clerk of Edgecombe County Superior Court.

Plaintiff alleges that, on or around October 23, 2012, through November 5, 2012, defendant Barnes then obtained and forged a North Carolina Certificate of Title for plaintiff’s Vehicle, and submitted a forged application to complete the registration process to re-title plaintiff’s Vehicle. While the Vehicle was in the property of White or Barnes, it was further damaged when sugar, oil, and water were put in the gas tank and engine.

Plaintiff alleges that defendant Diana Lee Draughn (“Draughn”) conspired with defendant Barnes “who act[ed] under color of law.” (Id. 4). He alleges that defendant Draughn notarized a title application for defendant Barnes “without having witnessed [plaintiff’s] signature.” (Id.). Furthermore, defendants Barnes and Draughn conspired to “commit the felony of title fraud” against plaintiff. (Id.). On or around September 26, 2012, defendant Weaver conspired with defendant Barnes because, although defendant Weaver “did not participate in the crime, ” he “knew what was going on and fail[ed] to report or file a complaint.” (Id.).

Plaintiff seeks declaratory and injunctive relief and a constructive trust against the bank accounts and property of all defendants, along with compensatory damages of $75, 000 against each defendant, and punitive damages of $150, 000 against all defendants.

Defendants White and White’s Wrecking filed their motion to dismiss on May 28, 2014. Defendant Barnes, in his official capacity, along with defendants Princeville PD, and the Town, filed their motion on June 18, 2014. Defendant Weaver filed his motion on July 2, 2014. Plaintiff responded separately to each motion. Defendants Barnes, the Princeville PD, and the Town replied on July 22, 2014. That same day, the court issued order on a number of discovery motions that had been filed by both plaintiff and defendants, denying motions to compel filed by plaintiff, and staying “progress of the case including discovery pending decision on defendants’ motions to dismiss.” (DE 71, at 4) (“July 2014 Order”).

Draughn eventually was served and filed her answer August 18, 2014, the sum and substance of which is the statement “In regards to the complaint that the plaintiff Thomas Everette, Jr. filed on 04/01/2014, I Diana Lee Draughn at this time I am not at liberty to confirm of deny any involvement in this matter.” Service as to Barnes was complicated by the fact of representation being through counsel for the Town related defendants only in Barnes’s official capacity. There is not return in the record evidencing service ever was made on Barnes; however, counsel acted for Barnes in this matter in his official capacity.

The court referred the motions to dismiss to the magistrate judge and on January 16, 2015, the magistrate judge issued the M&R recommending dismissal. Following the court’s July 2014 Order and the issuance of the M&R, plaintiff filed a motion for summary judgment on December 18, 2014 (DE 78). Plaintiff submitted a motion to supplement that motion for summary judgment on January 26, 2015 (DE 84).


A. Motions for Summary Judgment and to Supplement Motion for ...

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