United States District Court, E.D. North Carolina, Western Division
GEORGE R. EVANS, Plaintiff,
OFFICER STEPHEN CASHWELL BRITT and LANKFORD PROTECTIVE SERVICES,  Defendants.
LOUISE W. FLANAGAN, District Judge.
The matter is before the court on the parties' cross-motions for summary judgment (DE 46, 51). Also before the court is plaintiff's "final motion and preparation for court trial, " which the court construes as a motion to expedite (DE 58). The cross-motions for summary judgment were fully briefed, but defendants did not respond to plaintiff's motion to expedite. In this posture, the issues raised are ripe for adjudication. For the following reasons, the court grants defendants' motion for summary judgment, denies plaintiff's motion for summary judgment, and denies as moot plaintiff's motion to expedite.
STATEMENT OF THE CASE
On June 17, 2013, plaintiff, currently a pretrial detainee pending charges in an un-related action, filed this action pro se pursuant to 42 U.S.C. §§ 1983, 1988 and sought leave to proceed in forma pauperis pursuant to 28 U.S.C.§ 1915(a)(1). Plaintiff named the following as defendants in this action: (1) Lankford Protective Service ("LPS") Officer Stephen Cashwell Britt ("Britt"); (2) LPS owner Sam Lankford ("S. Lankford"); (3) LPS Vice President Jeff Mitchell ("Mitchell"); (4) LPS; (5) the Greensboro Transit Authority; (6) Greensboro Police Officer J.K. Griffin ("Officer Griffin"); (7) Chief Greensboro Police Officer Ken Miller ("Miller"); (8) the Greensboro Police Department; and (9) the City of Greensboro. Plaintiff sued these defendants in both their individual and official capacities. Plaintiff sought compensatory and punitive damages, as well as costs, attorney's fees, and any other relief deemed appropriate and just by the court. (Compl. pp. 4-5.)
On June 20, 2013, the action was referred to Magistrate Judge James E. Gates pursuant to 28 U.S.C. § 636(b)(1)(A) and (B) for ruling on plaintiff's motion to proceed in forma pauperis and for a frivolity review pursuant to 28 U.S.C. § 1915(e)(2)(B). On May 21, 2014, the magistrate judge entered an order granting plaintiff's motion to proceed in forma pauperis, and the complaint was filed. The magistrate judge's order also provided a memorandum and recommendation on frivolity review in which the magistrate judge recommended that the court dismiss plaintiff's claims against all defendants except for Britt and LPS. Specifically, the magistrate judge recommended that plaintiff be permitted to proceed with his § 1983 claims against Britt individually arising from Britt's alleged detention and arrest of plaintiff. Likewise, the magistrate judge recommended that plaintiff be permitted to proceed with his allegation that Britt's wrongful detention and arrest were pursuant to LPS' unconstitutional policy and custom of racial prejudice, harassment, and intimidation. The court adopted the magistrate judge's memorandum and recommendation, on July 23, 2014, and at that time dismissed (a) all claims based on Britt's return of medication to plaintiff, and all claims against Britt in his official capacity; and (b) all claims against Griffin, Miller, Sam Lanksford, Mitchell, the Greensboro Police Department, the City of Greensboro, and Greensboro Transit Authority.
On September 29, 2014, plaintiff filed a motion for summary judgment pursuant to Federal Rule of Civil Procedure 56. In response, defendants filed a motion pursuant to Federal Rule of Civil Procedure 56(d) requesting plaintiff's motion be denied or deferred to allow defendants the opportunity to conduct discovery. In the interim, the court entered a case management order which provided, inter alia, a discovery deadline of April 6, 2015. The court denied without prejudice plaintiff's motion for summary judgment subject to re-filing.
On January 8, 2015, plaintiff filed a second motion for summary judgment, and attached investigation reports, his citation for possession of a controlled substance, an LKS evidence control form, a letter from plaintiff to Jeff Mitchell, and the June 25, 2012, Guilford County General Court of Justice order disposing of plaintiff's property. Plaintiff subsequently filed a motion to introduce evidence on a flash drive. On March 2, 2015, the court entered a text order stating that the flash drive tendered by plaintiff was found defective and its contents were unreadable. The clerk of court returned the flash drive to plaintiff.
On March 26, 2015, attorney Ronald Dean Ingle, Jr., who represented plaintiff in a North Carolina state court matter, sent to the court a letter and enclosed a digital versatile disc ("DVD") containing two videos which plaintiff believes are pertinent to the instant case. Plaintiff notified defendants that he submitted the DVD to the court, but was unable to provide defendants with a copy of the DVD due to plaintiff's incarceration. Defendants subsequently objected to the court's consideration of the DVD on the grounds that plaintiff's former attorney had not entered a notice of appearance in this case and because defendants had not had an opportunity to view the video. The following day, the court entered a text order directing the clerk to send a copy of the DVD to defendants, and a copy of the DVD was mailed to defendants that day.
In the interim, defendants filed a cross-motion for summary judgment, to which defendants attached affidavits from defendant Britt, Officer Jason Bolen ("Officer Bolen"), Officer Clarence Schoolfield ("Officer Schoolfield"), and Officer Griffin. Plaintiff responded to defendants' motion and attached to his response excerpts from Officer Griffin's affidavit, an excerpt from defendants' motion for summary judgment, and investigation reports. Plaintiff, additionally, filed a motion to expedite to which he attached a personal affidavit.
STATEMENT OF THE FACTS
Except as otherwise noted below, the undisputed facts are as follows. At approximately 8:30 p.m. on September 21, 2011, LPS security officer Bolen was monitoring the security cameras at the City of Greensboro Greyhound bus station. (Bolen Aff. ¶¶ 6-7.) Officer Bolen observed two black males sitting behind the bus station on a bench. (Id. ¶ 7.) Officer Bolen then observed a white male, later identified as Richard Smith, come out of the bus station and sit on the bench next to the older of the two black males, who later was identified as plaintiff. (Id. ¶ 8.) Officer Bolen watched Richard Smith hand plaintiff a small, round, metallic-looking object. (Id.) Plaintiff, then, examined the metal object, dropped it, and picked it back up. (Id.) After examining the object again, plaintiff pulled what appeared to be a prescription pill bottle from his right pant pocket, took out a single pill from the bottle, and gave the pill to Richard Smith. (Id.) Richard Smith took the pill and went into the bus station lobby. (Id.)
Immediately after observing the transaction, Officer Bolen used his radio to contact LPS officers Jones and Mohoney and informed the officers that Officer Bolen had observed a hand-to-hand illegal drug transaction between an older black male sitting on the left side of the bench behind the bus station and a white male. (Id. ¶ 11.) Defendant Britt heard Officer Bolen's radio transmission and decided to investigate. (Britt Aff. ¶ 9.) Britt then confirmed with Officer Bolen, over the radio, that the suspect remained on the bus station bench. (Bolen Aff. ¶ 12.)
Prior to approaching plaintiff, Britt first made contact with Richard Smith. (Britt Aff. ¶ 10.) Britt briefly questioned Smith, and Smith informed Britt that he gave plaintiff a friendship ring so that plaintiff could pawn it for some money. (Id.) Smith also told Britt that plaintiff gave him a white pill in exchange for the friendship ring, but that Smith had flushed the pill down the toilet because Smith did not take pills. (Id.)
Britt next approached plaintiff at the bench and asked plaintiff for identification. (Id. ¶ 11.) The parties dispute the series of events that transpired subsequent to the parties exchange regarding plaintiff's identification. According to Britt, Britt explained to plaintiff that plaintiff was under investigation for possession of pills and again asked plaintiff to stand up and provide identification. (Id.) In response, plaintiff stated: "I don't have to give you shit." (Id.) Britt then leaned down and touched plaintiff's elbow to encourage plaintiff to stand, but plaintiff immediately pulled away and began backing away. (Id.) Given Britt's experience that weapons typically are involved with illegal drug transactions and the fact that plaintiff refused to cooperate, Britt decided to handcuff plaintiff in order to protect those involved. (Id. ¶¶ 11, 13.) LPS officer Brandon Ellison ("Ellison") assisted Britt in placing plaintiff in handcuffs. (Id. ¶ 11.) According to Britt, plaintiff then flexed his arms and attempted to avoid being handcuffed. (Id.) The officers were able to place plaintiff in handcuffs. (Id.)
Accordingly to plaintiff's version of the events, Britt told plaintiff to stand up and put his hands behind his back when Britt initially approached plaintiff. (Compl. p. 3.) In response, plaintiff asked "what for" and Britt responded "because I say so." (Id.); (Pl.'s Aff. (DE 58), p. 1.) The officers then grabbed plaintiff's hands and arms and twisted them behind plaintiff's back, placing plaintiff in handcuffs. (Id.) According to plaintiff's version of the facts, Britt then "took plaintiff before some white guy and Britt asked the person whether plaintiff had sold him any drugs. The person stated that plaintiff was not the person." (Compl. p. 3; (DE 46) Ex. 4; (Pl.'s Aff. (DE 58), p. 1.)
It is undisputed that, after placing plaintiff in handcuffs, Britt then performed a frisk of plaintiff's person. (Britt Aff. ¶ 14.) During the frisk, Britt felt what he believed to be a pill bottle in plaintiff's right front pocket. (Id.) Britt then asked plaintiff what was in his pocket and plaintiff responded: "My medicine." (Id.) Britt retrieved the pill bottle, opened it, and found 60 small white pills and two larger pills. (Id.) Plaintiff also produced identification which reflected his name as being George Reynold Evans. (Id. ¶ 15.) Britt then took plaintiff to the LPS security office for an interview. (Id.)
At the security office, Britt contacted Greensboro Police Department Detective Officer Schoolfield, a member of the department's narcotics unit. (Id. ¶ 16 and Schoolfield Aff. ¶ 5.) Britt advised Officer Schoolfield of what had occurred at the bus station, and Officer Schoolfield came to the scene and identified the smaller pills found on plaintiff's person as Lorazepam, a schedule III narcotic, and the two larger pills as Vicodin, a schedule IV narcotic. (Schoolfield Aff. ¶¶ 5-6.) (Id.) Plaintiff does not dispute the classification of the medication. ((DE 46), Ex. 4.) After identifying the medication, Schoolfield advised Britt to allow plaintiff to keep a two-day supply of the Lorazepam because it appeared that plaintiff had a prescription for that medication. (Britt Aff. ¶ 16 and Schoolfield Aff. ¶ 7.) Plaintiff states that, during this time period, Officer Schoolfield stated that Britt did not have a criminal case against plaintiff or that Britt could not charge plaintiff with a crime. (Compl. p. 3.) Officer Schoolfield denies making any such statement. (Schoolfield Aff. ¶ 8.)
Britt followed Officer Schoolfield's advice and permitted plaintiff to keep a two-day supply of the Lorazepam, and seized the remaining pills. (Britt Aff. ¶ 16.) After confiscating plaintiff's pills, Britt informed plaintiff that he could not give, sell, or hand out his medication and that plaintiff needed to visit plaintiff's physician within two days to replace his medication. (Britt Aff. ¶ 17.) Britt also cited plaintiff for possession of less than 100 units of a schedule III and IV narcotic and with resisting, obstructing, and delaying an officer. (Id.; Pl's Mot. for S.J. Attach. 2.) Plaintiff then was released and the confiscated pills were delivered to property control. (Id.; Pl.'s Mot. Attach. 3.) Britt states that plaintiff continuously cursed at Britt, accused Britt of being a racist, and stated that Britt did not like black people throughout the period of investigation and detention. (Britt Aff. ¶ 18.)
On October 5, 2011, plaintiff sent a letter to defendant Mitchell, the vice president of LPS, complaining about the incident with Britt at the Greyhound bus station. ((DE 46) Ex. 4.; (DE 59), p. 7.) LPS staff did not respond to plaintiff's letter or telephone calls regarding the incident. ((DE 59), p. 7.) The charges against plaintiff ultimately were dismissed and ...