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Howie v. McGhee

United States District Court, M.D. North Carolina

March 30, 2015



JOI ELIZABETH PEAKE, Magistrate Judge.

This matter comes before the Court on a Motion for Summary Judgment [Doc. # 50] filed by the remaining Defendants[1] in this action: Concord, North Carolina, police officers Sgt. McGhee, Officer Merritt, Captain Greene, Officer Overcash, Officer Ramos, Officer Medlin, and Officer Price. Plaintiff Joshua Howie, proceeding pro se, has responded to Defendants' Motion. Defendants have also filed a Motion to Strike [Doc. # 72], seeking to strike two of Plaintiff's submissions. For the reasons that follow, the Court denies Defendants' Motion to Strike, but recommends that Defendants' Motion for Summary Judgment be granted, and that this action be dismissed.


This is a civil rights action filed pursuant to 42 U.S.C. § 1983. (Pl.'s Compl. [Doc. # 2].)[2] Plaintiff Joshua Howie is a resident of Concord, North Carolina. (Id.) He alleges that the Concord Police Department and several of its officers "framed" him for drug charges which were later dismissed, and further harassed him in various ways. Plaintiff's allegations as to each of the individual officers is set out in sequence below.

A. Plaintiff's Claims

With respect to Defendant Sgt. Todd McGhee, Plaintiff alleges that on March 28, 2011, Sgt. McGhee falsified police reports in a malicious attempt to charge Plaintiff with four drug offenses, including a felony conspiracy offense. (Id. at 2.) These allegedly false charges resulted in Plaintiff being arrested and imprisoned twice. (Id.) Plaintiff claims that these charges arose from Sgt. McGhee's apprehension of Sebastian Rojas Hernandez on March 28, 2011, with ten individually wrapped marijuana bags in his possession. (Id. at 3.) Plaintiff claims that Hernandez was used as a "pawn" by Sgt. McGhee to "frame" Plaintiff for drug charges related to the marijuana seized from Hernandez, while Hernandez was not charged until several weeks later. (Id.) Plaintiff claims that Sgt. McGhee sought to frame Plaintiff because Plaintiff had refused his offer to become a drug informant following Plaintiff's arrest on separate drug charges in January 2011. Plaintiff further alleges that no drugs were found at his residence, on his scooter, or on his person when he was arrested on March 28, 2011. (Id.)

With respect to Defendant Officer Patrick Merritt, Jr., Plaintiff alleges that Officer Merritt conspired with Sgt. McGhee to charge Plaintiff with the March 28 drug offenses. (Id. at 4.) He also contends that Officer Merritt falsified police reports "by pretending to be the arresting officer of Plaintiff... on March 28, 2011." (Id.) Finally, Plaintiff claims that Officer Merritt maliciously caused Plaintiff to have to post a $20, 000 bond and caused Plaintiff's mother to suffer heart attack symptoms. (Id. at 5.)

With respect to Defendant Officer Jason L. Overcash, Plaintiff alleges that Officer Overcash was the "true arresting officer" on his March 28, 2011 charges. (Id.) Plaintiff states that Officer Overcash swerved in front of Plaintiff while Plaintiff was riding his scooter, jumped out of his police car, and drew his gun when arresting Plaintiff on the allegedly false charges made by Officer Merritt and Sgt. McGhee. (Id. at 6.)

With respect to Defendant Officer S.C. Medlin, Plaintiff claims that Officer Medlin arrested him on April 13, 2011, "for a second false arrest and false imprisonment." (Id.) Plaintiff states that the April 13 arrest occurred because he missed an April 1, 2011 court date on a charge of having no operator's license. (Id.) However, Plaintiff states that he was in custody on April 1 as a result of the charges made by Officer Merritt and Sgt. McGhee, and that Officer Medlin should have known that Plaintiff was in jail on the court date. (Id. at 6-7.)

With respect to Defendant Officer Michael Price, Plaintiff alleges that Officer Price participated with Officer Medlin in the arrest of Plaintiff on April 13, 2011. (Id. at 7.) Plaintiff alleges that Officer Price "knew the same as Medlin that plaintiff was in jail" on the court date. (Id.) Plaintiff states that after being incarcerated about four hours for the failure to appear, the Clerk of Superior Court saw to Plaintiff's release after Plaintiff's father intervened on Plaintiff's behalf. (Id.)

With respect to Defendant Officer Gene Ramos, Plaintiff claims that Officer Ramos and other officers harassed Plaintiff on May 27, 2011. (Id.) Plaintiff claims that Officer Ramos brought an individual to inspect Plaintiff's scooter to see if it was the same scooter that the individual had reported as being stolen. Plaintiff says that the individual said that the scooter was not his stolen scooter, but Officer Ramos took photographs of Plaintiff's scooter anyway. (Id. at 7-8.) Plaintiff also claims that Officer Ramos was on the scene with his drug dog when Sebastian Hernandez was arrested on April 11, 2011. Plaintiff claims that the statements made by Hernandez at that time should have "cleared Plaintiff, " but that the police wanted a statement from Hernandez to frame Plaintiff. (Id. at 8.)

With respect to Defendant Captain M.P. Greene, Plaintiff alleges that Captain Greene "intentionally covered up for his mens' corruption in his police investigation." (Id.) Captain Green allegedly investigated his officers' conduct but found nothing wrong. (Id.)

Based on these facts, Plaintiff seeks to raise federal § 1983 claims based on alleged Fourteenth Amendment Due Process Clause and Equal Protection Clause violations, as well as Fourth Amendment and Eighth Amendment violations. (See Pl.'s Response [Doc. # 30].) Plaintiff also complains of malicious prosecution and false arrest or false imprisonment. (See Pl.'s Compl. [Doc. # 2].)

As relief, Plaintiff seeks a temporary and permanent restraining order against the Concord Police Department to prevent officers from harassing Plaintiff, and punitive and compensatory damages. (Id. at 9.)

B. Defendants' Evidence

Defendants have submitted documentary evidence, court records, video recordings, and affidavits in support of their Motion for Summary Judgment.

1. Officer Price's Affidavit

Defendant Officer Price submitted an affidavit in which he states that he "was not present for, nor did [he] play any part in the Plaintiff, Joshua Howie's arrest at 10:47 a.m. on the Order for Arrest for failure to appear. Further, I did not arrest Plaintiff at any time on April 13, 2011." (Price Aff. [Doc. # 53].) He attaches police department records to support his statement. Plaintiff now concedes [Doc. # 74 at 4] that he mistakenly identified Defendant Price and that all claims against him should be dismissed. Therefore, Defendant Price's Motion for Summary Judgment should be granted and all claims against him should be dismissed.

2. Officer Medlin's Affidavit

Defendant Officer Medlin submitted an affidavit [Doc. # 54] stating that on April 13, 2011, he was acting as field training officer for Officer Payne. They were patrolling when they saw Plaintiff Howie and recognized him as a suspect in multiple narcotics investigations. The officers ran a warrant check on Plaintiff and discovered that there was an Order for Arrest for him for failure to appear on a no operator's license charge. The Order for Arrest, a copy of which is attached to Officer Medlin's affidavit, was issued on April 1, 2011, for the failure to appear on the same date. The officers took Plaintiff into custody, transported him to the sheriff's office where the magistrate verified that the Order for Arrest was valid, and then turned Plaintiff over to the custody of the sheriff's office.

3. Sgt. McGhee's Affidavit

Defendant Sgt. McGhee states in his affidavit that he is a sergeant in the special investigations unit, which includes narcotics investigations. He has been involved in over 500 narcotics investigations. The investigation of Plaintiff began on January 20, 2011, after Sgt. McGhee's unit received information from an unknown citizen regarding drug activity and sales at Plaintiff's residence. From January 21 through January 28, 2011, Officers Gonzalez and Merritt conducted surveillance on Plaintiff's residence. On January 21, Officers Gonzalez and Merritt advised Sgt. McGhee that they had observed Plaintiff engage in a suspected drug transaction with a white male. Officer Smith located this white male, later identified as Frank Stuart. Based on a consent search, Sgt. McGhee located two rocks of crack cocaine in Stuart's pocket. He was charged with possession of crack cocaine.

On January 27, Officer Gonzalez applied for and obtained an arrest warrant for Plaintiff on the charges of possession with intent to sell or distribute crack cocaine and delivery of crack cocaine. On January 28, 2011, Officers Gonzalez and Merritt were conducting surveillance on Plaintiff's house when they saw him contact a black male, later identified as Arvin Stevenson. Plaintiff and Stevenson walked behind Plaintiff's house, but only Plaintiff returned to the front of the house. The officers provided Sgt. McGhee with a description of the black male, and Sgt. McGhee located Stevenson, conducted a consent search, and found five rocks of crack cocaine on Stevenson. Stevenson told Sgt. McGhee that he had just purchased the crack cocaine from Plaintiff. Sgt. McGhee advised Officers Gonzalez and Merritt of this information, and they arrested Plaintiff on the January 27 warrant.

On March 28, 2011, another drug investigation of Plaintiff began after Sgt. McGhee's unit received a complaint of a drug operation being conducted at Plaintiff's house. Officers Merritt and Corl began surveillance of Plaintiff's residence. They witnessed a suspected drug transaction between Plaintiff and a Hispanic male later identified as Sebastian Hernandez. Officer Merritt gave Sgt. McGhee a description of Hernandez as Hernandez left the house running. Sgt. McGhee and Defendant Overcash located Hernandez and observed him walk into the Acapulco Restaurant. Sgt. McGhee approached Hernandez, and while being questioned about why he was at Plaintiff's residence, Hernandez handed Sgt. McGhee ten bags of marijuana. Hernandez said, "I didn't buy it he [Plaintiff Joshua Howie] just gave it to me to make some money and told me to get him back when I was right." (Aff. [Doc. # 55] at 4 (bracketed addition in original).) Sgt. McGhee understood this to mean that Plaintiff had given Hernandez the marijuana to sell, and after the sale(s), Hernandez was to pay Plaintiff. Sgt. McGhee seized the drugs but told Hernandez he would not be going to jail at that time due to his cooperation and assistance. The ten individual bags of marijuana weighed out to a total of eighteen grams.

Sgt. McGhee went to a state court magistrate and applied for warrants for Plaintiff's arrest. The magistrate found probable cause and issued warrants for Plaintiff on charges of possession with intent to sell/deliver marijuana and sale of marijuana. Sgt. McGhee notified Officers Merritt and Corl of the issuance of the warrants and advised them to notify him when Plaintiff left his residence so that he could serve the warrants. Around 7 p.m. that evening, the officers advised Sgt. McGhee that Plaintiff was leaving his house with another person on his moped. Officer Overcash located the moped and performed a felony stop of it, which is department policy when arresting a felony suspect. After placing Plaintiff under arrest, he was transported to the police department.

At the police station, Sgt. McGhee and Officer Merritt interviewed Plaintiff. He denied selling marijuana to Hernandez. The interview is recorded on a CD which is part of the record. Based upon the interview of Plaintiff and the statements of Hernandez, Sgt. McGhee and Officer Merritt believed that Plaintiff had conspired with Hernandez to buy and sell marijuana, but that Plaintiff had not sold the marijuana to Hernandez. Officer Merritt advised Plaintiff that he would be charged with conspiracy to sell/deliver marijuana, but that the warrants for possession with intent to sell/deliver marijuana and sale of marijuana would be rescinded, and those charges were eventually dismissed. Officer Merritt took Plaintiff to the magistrate who found probable cause to issue a Magistrate's Order for Plaintiff's arrest on the charge of conspiracy to sell/deliver marijuana and placed Plaintiff on a $30, 000 bond.

4. Officer Rummage's Affidavit

Officer Rummage submitted an affidavit [Doc. # 56] stating that he is the official custodian of records for the entire Concord Police Department. He certifies that the CDs and documents submitted in the case are those kept ...

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