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Nackab v. Butler

United States District Court, E.D. North Carolina, Western Division

June 17, 2015

JOHN THOMAS NACKAB, Plaintiff,
v.
EARL R. BUTLER, Sheriff; SGT. TIM BRITT, Supervisor; C.L. HAMILTON; JOHN MCRAINEY; ROY COOPER, Attorney General; JOHN J. ALDRIDGE, III; ED GRANNIS, District Attorney; DEBRA K. PRICE; W. DAVID SMITH; SHARON R. SMITH, ADA; KARA HODGES, ADA; SUE GENRICH BERRY; BETH RUPP, Social Worker III; LELIA GOODE-EATMON, Supervisor; ROSEMARY ZIMBREMAN, Director; DR. LAURA GUTMAN; and JAMES FLOYD AMMONS, JR., Defendants.

ORDER

LOUISE W. FLANAGAN, District Judge.

This matter is before the court on the memorandum and recommendation ("M&R") of Magistrate Judge Kimberly A. Swank, pursuant to 28 U.S.C. § 636(b)(1)(C) and Fed.R.Civ.P. 72(b), wherein it is recommended that the court dismiss plaintiff's complaint on frivolity review pursuant to 28 U.S.C. § 1915A(b). Plaintiff filed objection to M&R. In this posture, the issues raised are ripe for ruling. For the reasons that follow, the court adopts the recommendation and dismisses the complaint.

BACKGROUND

Pro se plaintiff, who is currently incarcerated, filed complaint October 7, 2014. Plaintiff brings claims pursuant to 42 U.S.C. §§ 1983 and 1985(2), alleging that his Fourth, Sixth, and Fourteenth Amendment rights were violated in the course of his arrest, prosecution and convictions for the North Carolina offenses of first-degree child rape, N.C. Gen. Stat. § 14-27.2, first-degree sexual offense with a child, N.C. Gen. Stat. § 14-27.4, and indecent liberties with a child, N.C. Gen. Stat. § 14-202.1. Plaintiff seeks expungement of his name from all state maintained records, as well as compensatory and punitive damages.

In relevant part, the complaint alleges as follows. On March 4, 2008, a woman filed complaint with the sheriff's department in Cumberland County, North Carolina, alleging that plaintiff had sexually assaulted her daughters. Three days later, the investigation was assigned to defendant Detective C.L. Hamilton ("Hamilton") with the Cumberland County Sheriff's Department ("Sheriff's Department") and defendant Beth Rupp ("Rupp") with the Cumberland County Department of Social Service ("DSS"). Defendants Hamilton and Rupp interviewed the alleged victims. On April 8 and 15, 2008, defendant Laura Gutman, a doctor with the Southern Regional Area Health Education Center, performed a physical examination of the alleged victims. On June 11, 2008, arrest warrants issued for plaintiff. He was arrested the following day.

At the relevant times, defendant Rupp's supervisor was defendant Lelia Goode-Eatmon ("Goode-Eatmon"). Defendant Rosemary Breman ("Breman") was director of the DSS. Defendant Sgt. Tim Britt ("Britt") was immediate supervisor of defendant Hamilton, and defendant Earl R. Butler ("Butler") was the Sheriff of Cumberland County.

On August 25, 2008, defendant Sharon R. Smith ("Sharon Smith"), an assistant district attorney in Cumberland County, secured three indictments against plaintiff. Defendant Kara Hodges ("Hodges"), another Cumberland County assistant district attorney, subsequently conducted additional interviews and amended one of the indictments, extending the timeframe over which the alleged criminal acts occurred by an additional six months. In the months following plaintiff's indictment, twelve Cumberland County citizens wrote defendant Ed Grannis ("Grannis"), the District Attorney in Cumberland County, requesting a review of plaintiff's arrest and indictment. However, defendant Grannis ignored these requests.

On June 2, 2009, plaintiff wrote a letter to defendant Roy Cooper ("Cooper"), the Attorney General in North Carolina, requesting an investigation into his arrest and indictment. Special Deputy Attorney General John J. Aldridge, III ("Aldridge"), responded by letter dated June 10, 2009, explaining that the North Carolina Department of Justice does not have authority to supervise or direct the activities and operations of local law enforcement or other government officials, and could not investigate plaintiff's case on his behalf or represent him. See (DE 7-8). While incarcerated, plaintiff also wrote a letter to defendant John McRainey ("McRainey"), the chief jailer for the Cumberland County Sheriff's Office, "for reasonable access to help." (Compl. ¶ 64). Defendant McRainey did not respond.

Over the course of plaintiff's prosecution, plaintiff was represented by defendants Debra K. Price ("Price") and W. David Smith ("David Smith"), both court-appointed public defenders. Defendant Price did not follow plaintiff's instructions to demand a probable cause hearing or to petition the court for money to obtain a witness to refute the evidence. Defendant David Smith did not review the evidence file against plaintiff, did not petition the court to assert plaintiff's right to have compulsory process to obtain a witness, did not petition the court to assert plaintiff's speedy trial right, and asked for a continuance of trial without consulting plaintiff.

Trial was presided over by the Honorable James Floyd Ammons, Jr. ("Ammons"), a superior court judge in Cumberland County. On July 1, 2010, plaintiff was convicted and sentenced to 697-856 months imprisonment. He appealed, and defendant Sue Genrich Berry ("Berry") was appointed appellate counsel. However, defendant Berry did not follow plaintiff's instructions on what issues to raise on appeal. Plaintiff's conviction was affirmed by the North Carolina Court of Appeals and the North Carolina Supreme Court.

The M&R recommends the court dismiss plaintiff's claims pursuant to 28 U.S.C. § 1915A(b). Its analysis consists of three parts. The first part addresses claims asserted against particular defendants. The M&R recommends dismissal of plaintiff's claims against defendantAmmons under the doctrine of judicial immunity. The M&R similarly recommends dismissal of the claims against defendants Grannis, Hodges, and Sharon Smith under the doctrine of prosecutorial immunity, because the actions alleged involved prosecutorial functions. The M&R also recommends that plaintiff's § 1983 claims against defendants Price, David Smith, and Berry be dismissed because these defendants were all defense attorneys and did not act under color of state law.

The second and third parts of the M&R's analysis address particular claims. The second part addresses plaintiff's section 1985(2) claim, finding that plaintiff fails to allege facts sufficient to establish a conspiracy to violate plaintiff's rights. The third part of the M&R's analysis addresses plaintiff's section 1983 claim, construing it to consist of two separate claims premised in malicious prosecution and false arrest. The M&R recommends the court dismiss the malicious prosecution claim because plaintiff did not allege and prove that the prior criminal proceeding terminated in his favor, under Heck v. Humphrey, 512 U.S. 477 (1994). It recommends dismissal of the false arrest claim under Rooker-Feldman doctrine. See generally District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923).

DISCUSSION

The district court reviews de novo those portions of a magistrate judge's M&R to which specific objections are filed. 28 U.S.C. § 636(b). The court does not perform a de novo review where a party makes only "general and conclusory objections that do not direct the court to a specific error in the magistrate's proposed findings and recommendations." Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). Absent a specific and timely filed objection, the court reviews only for "clear error, " and need not give any explanation for adopting the M&R. Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005); Camby v. Davis, 718 F.2d 198, 200 (4th Cir.1983). Upon ...


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