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Carias v. Harrison

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

March 27, 2017



          LOUISE W. FLANAGAN United States District Judge

         These consolidated cases are before the court on defendants' respective motions for summary judgment (DE 127, 132, 135). Also before the court is plaintiff's motion for the court to “apply the presumption test toward all defendants” (DE 182). The issues raised have been fully briefed and are ripe for adjudication. For the following reasons, the court denies plaintiff's motion to apply the presumption test and grants defendants' respective motions for summary judgment.


         On October 25, 2013, plaintiff, a state inmate, instituted this action pursuant to 42 U.S.C. § 1983, against defendants Wake County Sheriff Donnie Harrison (“Harrison”), Wake County Investigator E.A. Blomgren (“Blomgren”), and Wake County Deputy Sheriff James Michael Cornaire (“Cornaire”) (collectively referred to as the “Sheriff's defendants”). See Carias v. Harrison, 5:13-CT-3264-FL (E.D. N.C. Oct. 25, 2013) (“Carias I”). Then, on April 28, 2014, plaintiff instituted an action pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), against defendants the United States, Drug Enforcement Agency (“DEA”), DEA Agent William Atwell (“Atwell”), DEA Agent Lance Anthony (“Anthony”), Harnett County Investigator Michael Williams (“Williams”), DEA Agent D. Taylor (“Taylor”), and DEA Agent K. Manning (“Manning”). See Carias v. the Drug Enforcement Agency, 5:14-CT-3104-BO (E.D. N.C. Apr. 28, 2014) (“Carias II”). Plaintiff subsequently added Dwight Yokum (“Yokum”), a Wake County Sheriff's Office Investigator, as a defendant. The court, however, dismissed plaintiff's action against Yokum without prejudice on November 6, 2014. On May 11, 2015, the court consolidated the actions in Carias I and II, and directed plaintiff to file one particularized amended complaint.

         Plaintiff filed his particularized complaint alleging claims pursuant to 42 U.S.C. §§ 1983, 1981, and Bivens, and added the following new parties: Nardine Mary Guirguis (“Guirguis”), an attorney; the United States Immigration and Customs Enforcement (“ICE”) Director; United States Attorney General Eric Holder; the DEA Director; an unidentified ICE agent; ICE Special Agent Christopher Brant (“Brant”); and the unidentified indemnitor for Wake County. Specifically, plaintiff alleged the following claims against defendants: (1) excessive force and failure to protect in violation of the Eighth and Fourteenth Amendments to the United States Constitution; (2) due process claims pursuant to the Fifth and Fourteenth Amendments; (3) involuntary servitude in violation of the Thirteenth Amendment; (4) illegal search and seizure in violation of the Fourth Amendment; (5) extortion in violation of the Hobbs Act under 18 U.S.C. § 1951; (6) violations of the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1962; (7) violations of the Unfair and Deceptive Trade Practices Act (“UDTPA”), N.C. Gen. Stat. § 75-1; (8) violations of North Carolina's Constitution, Article I §§ 17, 19, 27; and violations of the Due Process Clause of the Fourteenth and Fifth Amendments to the United States Constitution. (Am. Compl. p. 9.) As relief, plaintiff sought monetary damages as well as declaratory and injunctive relief. (Id.) Defendant Manning, defendant Guirguis, and the federal defendants subsequently filed respective motions to dismiss.[1]

         On March 23, 2016, the court issued the following rulings: granted plaintiff a continuance to conduct discovery, and construed defendants' dispositive motions as motions to dismiss pursuant to Rules 12(b)(1) and (6); extended the case management deadlines to accommodate discovery; denied plaintiff's motion to appoint counsel; dismissed plaintiff's Hobbs Act claims and FTCA claims pursuant to 28 U.S.C. § 1915(e)(2)(B); denied defendant Manning's motion to dismiss; granted defendant Guirguis' motion to dismiss and dismissed Guirguis from this action; and directed the clerk to substitute Tom Halvas (“Halvas”) for the party plaintiff referred to as the “unidentified ICE agent” in his amended complaint. The court also granted in part and denied in part the remaining federal defendants' motion to dismiss. Specifically, the court denied the federal defendants' motion as to plaintiff's claims pursuant to the Eighth, Fifth, Thirteenth, and Fourth Amendments, as well as plaintiff's RICO and North Carolina State Constitutional claims. Plaintiff's official capacity claims for injunctive relief also remained pending against the federal defendants, but the court granted the federal defendants' motion to dismiss as to plaintiff's remaining claims.

         On the same date, plaintiff filed a motion to compel discovery. In response, the Sheriff's defendants requested additional time to respond to plaintiff's discovery requests because such requests were voluminous. On April 6, 2016, the federal defendants filed a motion for leave to depose plaintiff and a motion to shorten the time for plaintiff to respond to the federal defendants' motion. The court then granted the federal defendants' motions to depose plaintiff and to shorten the response time. The court also allowed the Sheriff's defendants additional time to respond to plaintiff's discovery requests, and denied as moot plaintiff's motion to compel.

         On June 9, 2016, plaintiff again filed a motion to compel, to which the federal defendants responded. Plaintiff then filed an additional motion to compel discovery. On July 28, 2016, the federal defendants filed the instant motion for summary judgement, arguing that plaintiff is unable to establish a constitutional violation, or, in the alternative, that they are entitled to the affirmative defense of qualified immunity. The federal defendants also submitted a statement of material facts and an appendix which included the following attachments: plaintiff's deposition transcript; responses to the federal defendants' interrogatories; declarations from non-parties Michael Troster (“Troster”), [2] Thomas O'Connell (“O'Connell”), [3] as well as defendants Halvas, Williams, and Taylor; crime scene entry report; power of attorney; motion for temporary restraining order; preliminary injunction; and the Last Will and Testament of Marisol Rojas (“Rojas”), an individual plaintiff describes as his common law wife. The federal defendants' motion for summary judgment was fully briefed.

         On July 29, 2016, defendant Manning filed the instant motion for summary judgment arguing that plaintiff failed to establish a constitutional violation, or in the alternative, that he is entitled to the affirmative defense of qualified immunity. Defendant Manning also submitted a statement of material facts and an appendix to which he attached the same exhibits the federal defendants attached to their motion for summary judgment.

         Also on July 29, 2016, the Sheriff's defendants filed the instant motion for summary judgment arguing that plaintiff failed to establish a constitutional violation, or in the alterative, that they are entitled to the affirmative defense of qualified immunity. The Sheriff's defendants attached to their motion a statement of material facts and an appendix.[4] The Sheriff's defendants' appendix included the following: affidavits from defendants Blomgren, Cornaire, and Harrison, as well as non-parties Jebediah Yoakum, [5] Charles Timothy Blake (“Blake”), [6] Wake County Sheriff's Deputy Derrick Johnson (“Johnson”), Christian Fernando Palma (“C. Palma”), Fernando Alexander Palma (“A. Palma”), [7] Raleigh Police Department Officer Eric Michael Vigeant (“Vigeant”), Wake County Sheriff's Major Charles West (“West”), plaintiff and Rojas' Last Will and Testament; plaintiff and Rojas' power of attorney; check number 1041; receipt for $5, 000.00; lottery ticket; order on foreclosure; child custody order; letters testamentary for Rojas; default judgment; preliminary injunction; memorandum of disbursement and checks; transcript of plea; Child Protection Services letter; civil complaint (case number 13CVS08801); motion for a temporary restraining order; order to sell real property; report of real estate sale; order confirming real property sale; final report of real estate sale; check number 1047; plaintiff's request for admissions in case number 13CVS08801; motion for a temporary restraining order in case number 13CVS08801; bank statement; BB&T account summary; repayment agreement; search report; hearing transcript in case number 13CVS08801; plaintiff's motion for appropriate relief; and order to dissolve receivership.

         On September 6, 2016, plaintiff filed motions to stay, for an extension of time, and to appoint counsel. On December 16, 2016, the court denied plaintiff's motion to appoint counsel, but granted in part and denied in part plaintiff's motions to compel. The court granted plaintiff's motions to compel to the extent plaintiff requested a copy of his deposition transcripts, but the remainder of the motions were denied. The court also denied plaintiff's motion to stay ruling on the pending motions for summary judgment, but allowed plaintiff an extension of time to supplement his response to the pending motions for summary judgment. Plaintiff subsequently filed his supplemental responses. Plaintiff attached voluminous exhibits in response to the respective dispositive motions and his supplemental responses.

         On January 10, 2017, plaintiff filed a motion to strike pursuant to Federal Rule of Civil Procedure 12(f) and then filed a second motion to stay ruling on the pending dispositive motions. The motions were fully briefed. On February 7, 2017, the court denied plaintiff's motions. After the court's ruling, plaintiff replied to his motion to strike. On February 16, 2017, plaintiff filed a motion requesting that the court “apply the presumption test toward all defendants.” The motion was fully briefed. On March 15, 2017, the court entered a text order notifying the federal defendants and defendant Manning that Exhibit 1 to the Michael Troster affidavit was missing and directed these defendants to file the missing exhibit. The exhibit was filed the following day.


         Plaintiff immigrated from Honduras to the United States in 1992. (Mem. in Supp. of Compl. p. 10). Plaintiff owned and operated several businesses under the names Mexico Lindo, Carias Properties, and Carias Construction. (Id.; Fed. Def. Appx. p. 205). The businesses operating under the Mexico Lindo name included a “money transfer service, ” a grocery store, and “another [] store.” (Mem. in Supp. of Compl. p. 15). Plaintiff also owned and operated Flamingo's Bar and Grill. (Fed. Def. Appx. p. 205). The DEA began investigating plaintiff for money laundering in October 2005. ((DE 96), Ex. T).

         In 2006, plaintiff met defendant Cornaire. (Cornaire Aff. ¶ 5). At that time, defendant Cornaire was employed as a Wake County Sheriff's Deputy, but also owned and operated a part- time vending machine business during his off duty time. (Id.) It was through defendant Cornaire's vending machine business that he and plaintiff became acquainted because defendant Cornaire purchased items for his vending machines from plaintiff's store. (Id.) Over time, the personal relationship between plaintiff and defendant Cornaire grew closer, and their families began to socialize together. (Id. ¶ 6). Through their social relationship, defendant Cornaire learned that plaintiff and Rojas were illegal aliens, but that their children were citizens of the United States. (Id.) On April 1, 2007, plaintiff loaned defendant Cornaire $10, 000.00 to use toward expanding defendant Cornaire's vending machine business. (Id. ¶ 11; Sheriff's Def. Appx. Ex. 15; Mem. in Supp. of Compl. p. 14). The parties dispute whether defendant Cornaire re-paid the loan. (Id. ¶ 11; Mem. in Supp. of Comp. p. 15).

         In 2007, plaintiff made contact with the DEA. The parties, however, dispute how plaintiff's contact with the DEA was initiated. According to plaintiff's version of events, defendant Cornaire approached plaintiff and informed plaintiff that he was under investigation by the DEA for money laundering. (Mem. in Supp. of Compl. pp. 12-13). Defendant Cornaire, however, states that plaintiff wanted to work for the DEA and asked defendant Cornaire to arrange a meeting between plaintiff and the DEA. (Cornaire Aff. ¶ 9). The parties agree that defendant Cornaire ultimately facilitated a meeting between plaintiff and the DEA, and that Cornaire accompanied plaintiff to the meeting. (Id.) Cornaire states that he was not acting in his official capacity as a Deputy Sheriff when he referred and accompanied plaintiff to the DEA. (Id.)

         At the Raleigh DEA office, plaintiff and defendant Cornaire met with DEA officer defendant Atwell, and plaintiff agreed to provide the DEA assistance in the investigation of drug targets. (Atwell Decl. (DE 89) ¶ 3). On July 16, 2014, plaintiff executed a statement indicating his desire to serve as a confidential informant (“CI”) for the United States Government. (Fed. Def. Appx. pp. 25-26; 123-125). Plaintiff states that the letter was coerced and that he only agreed to act as a CI for the DEA under threats of arrest and deportation. (Id. pp. 22-23). However, plaintiff later reported to a psychologist that he agreed to serve as a CI “because [plaintiff] felt it would be a way to help the United States.” ((DE 96), Ex. S-1). Plaintiff additionally states that defendants Cornaire and Atwell also told plaintiff that in exchange for serving as a CI for the DEA, plaintiff would receive immunity from prosecution “arising out of the investigation of the Mexican drug cartel, ” payment for his services, protection from “harms way, ” and American citizenship for himself and his family. (Mem. in Supp. of Compl. pp. 13, 14). The DEA defendants dispute that they coerced plaintiff into serving as a CI and that plaintiff was promised immunity, citizenship, or payment for his services. (Troster Decl. ¶ 10; O'Connell Decl. ¶ 8; Atwell Decl. (DE 89), ¶ 11; Williams Decl. ¶¶ 7-8).

         Due to the fact that plaintiff was an illegal alien, DEA policy prohibited plaintiff from being documented as a CI. (Atwell Decl. (DE 89), ¶ 4). As a result, defendant Atwell contacted ICE and requested assistance in documenting plaintiff as a CI. (Id. ¶ 5). On July 12, 2007, ICE provided plaintiff with a form captioned “Instructions to a Confidential Source, ” which included an instruction notifying plaintiff that his “assistance and the statements [plaintiff makes] to U.S. Immigration and Customs Enforcement are entirely voluntary.” (Fed. Def. Appx. p. 126). Plaintiff signed the document. (Id.) In August 2007, ICE documented plaintiff as a CI so that plaintiff could also provide assistance to both the DEA and ICE. (O'Connell Decl. ¶ 5). Defendant Brant, an ICE special agent, served as plaintiff's ICE handler. (Id.; Brant Decl. (DE 89), ¶ 4). While plaintiff served as a CI for the DEA and ICE, ICE provided plaintiff with documentation which allowed plaintiff to reside in the United States until July 14, 2009, and to work in the United States until September 8, 2009. ((DE 89), Ex. 2).

         Plaintiff states that after he began working for the DEA, defendant Cornaire “began to realize how much money [plaintiff] was transferring from [his] business to other designations via wire, and in consideration of other monies seized by the DEA through [his] assistance, [Cornaire] began to demand large sums of money from [plaintiff] on a regular basis” and asked plaintiff not to tell law enforcement. (Mem. in Supp. of Compl. p. 14). In particular, plaintiff asserts that he received a large sum of money from Serafin Castaneda (“Castenada”)-a DEA target. (Id. p. 16). Defendant Atwell instructed plaintiff to deposit the money from Castenada into plaintiff's business account “and to refuse the transfer and return [Castaneda's] money by a check from [plaintiff's] business account, and to forward a copy of that check to the DEA.” (Id.) Plaintiff states that when Cornaire learned about the money, Cornaire demanded that plaintiff give him the money and not report the exchange to the DEA. (Id.) Plaintiff states that he complied with Cornaire's allegd demands and replaced the missing funds with his own money. (Id.) Defendant Cornaire denies that he ever extorted money from plaintiff. (Cornaire Aff. ¶ 11). Cornaire, however, states that he did obtain a $5, 000.00 loan from plaintiff on July 26, 2008. (Id.; Ex. 16). During this time period, defendant Cornaire assisted in obtaining dismissals for two traffic tickets. (Cornaire Aff. ¶ 10).

         On September 10, 2008, Vigeant, a Raleigh Police Officer, responded to a call concerning an armed robbery and shooting at plaintiff's Mexico-Lindo store on Wake Forest Road in Raleigh, North Carolina. (Vigeant Aff. ¶ 3). Vigeant interviewed plaintiff, and plaintiff explained that he arrived at the scene after the robbery and that he had been the victim of a home invasion robbery approximately three weeks before the robbery Vigeant was investigating. (Id. ¶ 8). At some point in the investigation, Vigeant removed a handgun which had been kept in the store for security. (Id. ¶ 9). The handgun was a 9mm, P89 model with the serial number of 31477635, which was the same handgun plaintiff later used to kill Rojas. (Id. ¶ 10; Yoakum Aff. ¶ 10). Vigeant then returned the firearm to plaintiff on September 11, 2008. (Vigeant ¶ 12). Plaintiff's sons, additionally, attest that plaintiff had multiple handguns both at plaintiff's home and at his businesses. (Christian and Alex Palma Affs. ¶ 8).

         On January 14, 2009, plaintiff and Rojas asked defendant Cornaire to serve as the secondary executor of their respective wills and to serve as guardian and trustee of their two minor children in the event of the death of plaintiff and Rojas. (Cornaire Aff. ¶ 7; Sheriff's Def. Appx. Ex. 12). On the same date, defendant Cornaire signed documents agreeing to serve as power of attorney for plaintiff and Rojas.[8] (Id. ¶ 7; Sheriff's Def. Appx. Ex. 13). Plaintiff also states that Cornaire convinced him to take out life insurance policies on himself and Rojas.[9] (Mem. in Supp. of Compl. p. 20).

         At some point ICE determined that plaintiff no longer was providing substantial assistance with any ICE investigation and revoked plaintiff's immigration documentation on February 23, 2009. (Brant Decl. (DE 89), ¶7; Ex. 2). On the same date, ICE agents, defendants Brant and Halvas, arrested plaintiff on immigration violations and transported plaintiff to the Cary, North Carolina field office for immigration processing. (Id. ¶ 8; Ex. 3, 4; Halvas Decl. ¶ 5). Plaintiff states that as defendants Brant and Halvas were transporting plaintiff to the Cary field office, defendants Brant and Halvas became upset that plaintiff was providing the DEA assistance and called plaintiff a “Damn Immigrant” and stated “you work for ICE from now on.” (Mem in Supp. of Compl. p. 18). Plaintiff states that Brant became “livid” when he discovered plaintiff had signed a contract with the DEA and began punching [plaintiff] in the stomach and crotch . . . while [plaintiff] was in handcuffs.” (Id.) Plaintiff states Brant threatened to kill plaintiff and then both officers began punching plaintiff in the “back, stomach, and legs.” (Id.) Plaintiff states the officers threatened plaintiff with deportation and plaintiff ultimately agreed to cooperate with ICE. (Id.) Defendants Halvas and Brant deny assaulting plaintiff. (Halvas Decl. ¶ 7; Brant Decl. ¶ 10).

         After his arrest plaintiff called defendant Cornaire. (Mem. in Supp. of Compl. p. 18). Plaintiff states that defendants Cornaire and Atwell assisted him with obtaining the services of attorney Nardine Mary Guirguis to represent plaintiff in his immigration proceedings. (Fed. Def. Appx. pp. 62-63). Plaintiff states that he paid Cornaire $400.00 to secure plaintiff's release from ICE custody. (Mem. in Supp. of Compl. p. 18). On September 15, 2009, plaintiff signed a new agreement to act as a CI for the DEA. (Fed. Def. Appx. pp. 131-132). Plaintiff, however, was deactivated as a CI for the DEA on October 16, 2009, because plaintiff admitted that he had purchased a quantity of cocaine without law enforcement concurrence or participation. (Troster Decl. ¶ 6 and Ex. 1). Defendant Atwell, plaintiff's DEA handler, retired on January 15, 2010. (Atwell Decl. (DE 89), ¶ 1; (DE 150), p. 7).

         On November 14, 2009, plaintiff had a dispute with an individual, Juan Manuel Cardona, at plaintiff's residence. (Mem. in Supp. of Compl. p. 15). Plaintiff called both the police and defendant Cornaire for assistance, and Cornaire arrived at plaintiff's house first. (Id.) Plaintiff states that Cornaire conducted a search of plaintiff's residence before the police arrived and found a gun, which Cornaire insisted plaintiff keep. (Id.) Cornaire disputes that he provided plaintiff with a gun. (Cornaire Aff. ¶ 15). At some point, Johnson, a Wake County Sheriff's Deputy, arrived at plaintiff's residence. (Johnson Aff. ¶ 7). When Johnson arrived at plaintiff's residence, defendant Cornaire informed Johnson that Cornaire was a friend and business associate of plaintiff. (Id.) Cornaire also informed Johnson that plaintiff and Cardona were having an argument and that plaintiff wanted Cardona, who had been drinking, to leave. (Id.)

         After interviewing plaintiff and Cardona, Johnson discovered that Cardona had been staying with plaintiff for approximately four months and that Cardona worked for plaintiff. (Id. ¶ 8). Accordingly, Johnson determined that the issue was a landlord-tenant dispute and that he could not force Cardona to leave plaintiff's residence. (Id.) Johnson advised plaintiff to go to the Office of the Wake County Clerk of Court to institute a Summary Ejectment Action against Cardona. (Id.) After Johnson advised plaintiff and Cardona of the situation, Cardona told Johnson that plaintiff had pulled a gun on him, and plaintiff denied Cardona's allegation. (Id. ¶ 9). Plaintiff, in turn, told Johnson that Cardona had pushed him, which Cardona denied. (Id.) Plaintiff and Cardona then agreed to settle their dispute in court and Johnson left the scene. (Id. ¶ 11).

         In February and March of 2010, plaintiff hired defendant Cornaire to provide security at plaintiff's Flamingo Bar and Grill. (Cornaire Aff. ¶ 8). Plaintiff provided defendant Cornaire four separate checks as payment for Cornaire's security services. (Id.; Sheriff's Def. Appx. p. 203). Plaintiff states that he did not pay defendant Cornaire to provide security services, but that he paid the $400.00 checks to Cornaire in response to threats from Cornaire. (Sheriff's Def. Appx. p. 203; Mem. in Supp. of Compl. p. 14). The subject lines of the checks in question are labeled “security.” (Sheriff's Def. Appx. p. 203). In March of 2010, Rojas purchased a $5, 000.00 winning North Carolina State lottery ticket. (Cornaire Aff. ¶ 12 and Ex. 17). On April 16, 2010, Rojas asked defendant Cornaire to cash the lottery ticket and to give her the proceeds. (Id.) Rojas was concerned that, as an illegal alien, she would not be able to claim the prize and told Cornaire that she needed the money to post bond for plaintiff so that plaintiff could be released from ICE custody. (Id.) Cornaire then cashed the lottery ticket and received $4, 651.40 in net proceeds. (Id.; Yoakum Aff. ¶ 9). Cornaire paid the additional taxes owed for the lottery winnings on his 2010 income tax return. (Cornaire Aff. ¶ 12 and Ex. 17). The parties dispute whether defendant Cornaire gave the lottery proceeds to Rojas. (Id.; Mem. in Supp. of Compl. p. 21).

         On January 26, 2012, while Williams was conducting a drug surveillance operation, the Atlanta, Georgia DEA informed the Raleigh DEA that individuals, who were located at the Comfort Inn on South Saunders Street in Raleigh, North Carolina were in the process of searching for a warehouse in the Raleigh area to serve as a stash house for narcotics. (Williams Decl.¶ ¶ 3, 4). The surveillance team identified the participants, followed them to a warehouse, and took pictures of them. (Id. ¶ 4). DEA agents identified one of the participants as plaintiff. (Id.) DEA agent Donald Wimmer was familiar with plaintiff because plaintiff had served as a CI in the past. (Id.)

         In February 2012, defendants Anthony and Williams met with plaintiff at one of plaintiff's businesses and discussed plaintiff's involvement with the drug cartel. (Id. ¶ 5; Anthony Decl. (DE 89), ¶ 5). Plaintiff agreed to cooperate with the DEA, and defendants Anthony and Williams later met with plaintiff and plaintiff's attorney, at the attorney's office, and debriefed plaintiff regarding his knowledge of the drug cartel and the cartel's use of the warehouse in Raleigh as a stash house for narcotics. (Id.) Anthony and Williams served as plaintiff's primary handlers for the DEA. (Williams and Anthony Decls. ¶ 6). At that time, plaintiff again was an illegal alien. (Atwell Decl. (DE 89), ¶ 6). Accordingly, plaintiff registered as a confidential informant with the Harnett County Sheriff's Office. (Id.; (DE 171), Ex. F).

         Plaintiff states that DEA officers coerced him into serving as a CI through threats of arrest and deportation. (Mem. in Supp. of Compl. p. 17). Plaintiff additionally states that he expressed concerns to the DEA that it was putting plaintiff's life in danger because DEA officers forced plaintiff to be photographed with Castenada, a cartel member, outside of plaintiff's store. (Id.) Plaintiff also states that the DEA instructed plaintiff to accompany Francisco Texta-Palacios, a cartel member, on a drug-related delivery during which other cartel members threatened plaintiff and asked plaintiff if he was a snitch. (Id.) Plaintiff, however, also admitted that defendants Manning and Taylor were present outside of the warehouse each time plaintiff went inside and that the federal defendants planned to place plaintiff in the witness protection program for his safety. (Fed. Def. Appx. pp. 203-204).

         On March 15, 2012, Wake County Investigator Danny Wright (“Wright”) installed video recoding equipment inside the warehouse, and defendants Manning and Taylor installed a global positioning system (“GPS”) monitor on plaintiff's vehicle while plaintiff was present. (Williams Decl. ¶ 9; Taylor Decl. ¶ 3; Manning Decl. ¶ 14). On March 29, 2012, plaintiff signed an agreement to act as a CI for the DEA. (Fed. Def. Appx. pp. 133-134). Plaintiff's assistance led to two monetary seizures from the drug cartel. (Williams Decl. ¶ 9).

         In late April or early May, Wright removed the video equipment from the warehouse. (Id. ¶ 10). In June 2012, defendants Anthony and Williams minimized their use of plaintiff because plaintiff was unable to provide useful information. (Id.) Plaintiff states that, at some point, defendant Anthony informed plaintiff that Rojas was “sleeping with DEA target identified as Francisco-Texta Palacious.” (Mem. in Supp. of Compl. p. 21). Plaintiff informed Anthony that he “wanted to quit and take [his] children and move on.” (Id.) Plaintiff told Anthony that he was going to leave Rojas. (Id.) In response, Anthony told plaintiff that plaintiff had a contract and that if plaintiff did not befriend the target and collect information, plaintiff would lose his business, family, and face deportation. (Id.)

         At some point, Rojas confronted plaintiff and called him a snitch. (Id. p. 22.) Rojas informed plaintiff that defendant Cornaire had told her that plaintiff was working with the DEA and ICE, and that Rojas was “gonna one day lose everything.” (Id.) Plaintiff then called defendant Williams on July 3, 2012, at approximately 6:16 p.m. (Id. at 22; Sheriff's Def. Appx. p. 292). Plaintiff and Williams' accounts of the telephone call differ. Plaintiff states that he called Williams to inform Williams that Rojas knew about plaintiff's involvement with the DEA and to request protection. (Mem. in Supp. of Compl. p. 22). According to Williams' version of the telephone call, plaintiff told Williams that Rojas was cheating on plaintiff with a guy who worked as a mechanic. (Sheriff's Def. Appx. p. 292). Plaintiff told Williams that Rojas was planning to leave plaintiff and that Rojas had stolen $30, 000.00 from plaintiff's store and given it to her boyfriend. (Id.) Plaintiff asked Williams if Williams would tap Rojas' telephone, and Williams refused. (Id. p. 293). Plaintiff and defendant Williams ended the conversation when they agreed to meet, along with defendant Anthony, on July 5, 2012. (Id.) Plaintiff states that he then contacted defendant Anthony, and Anthony reassured plaintiff that everything would be fine and that he did not believe Cornaire told Rojas anything. (Mem. in Supp. of Compl. p. 22).

         Later on the evening of July 3, 2012, plaintiff went to the home he shared with Rojas and their 15-year old twin sons who also were at home that evening. (Christian and Alex Palma Affs. ¶ 9). Plaintiff states that Rojas began to argue with plaintiff and cut off the tip of plaintiff's finger with a machete. (Mem. in Supp. of Compl. pp. 22-23). One of plaintiff's sons, witnessed the altercation and attested that Rojas did not have a machete on the date of her murder and that plaintiff shot and killed Rojas. (Alex Aff. ¶ 9). Plaintiff, however, did sustain a minor injury to his finger. (DE 153, pp. 1-3). After plaintiff shot Rojas, defendants Manning and Taylor went to plaintiff's residence to remove the GPS tracking monitor from plaintiff's car. (Taylor Decl. ¶ 13). While plaintiff asserts that there was video surveillance available from video cameras the DEA installed in his home, the DEA denies that it installed surveillance equipment in plaintiff's home. (Manning Decl. ¶ 12; Taylor Decl. ¶ 12). The DEA terminated its relationship with plaintiff when plaintiff was arrested on July 3, 2012. (Williams Decl. ¶ 10). On August 6, 2012, defendant Cornaire was granted temporary custody of plaintiff's minor children pursuant to a consent order. (Cornaire Aff. ¶ 17 and Ex. 19).

         On June 14, 2013, plaintiff pleaded guilty to second-degree murder. (Blomgren Aff. ¶ 10 and Ex. 24). Plaintiff was sentenced to a term of 196-248 months imprisonment. (Id.) After plaintiff's conviction and sentence, defendant Cornaire hired Blake, an attorney, to represent the Estate of Rojas in a wrongful death action against plaintiff in the Wake County Superior Court. (Blake Aff. ¶ 4 and Ex. 26). On September 12, 2013, the Estate of Rojas filed a “Motion for a Temporary Restraining Order, Attachment Order, and/or Appointment of a Reciever” to prevent plaintiff from selling, encumbering, or otherwise disposing of his personal property, real estate holding or any stocks, bonds or other such securities in his possession, custody, and control. (Id. ¶ 5 and Ex. 27). Blake filed the motion because plaintiff, acting through a newly appointed power of attorney Molele Yves Kimbembe, was disposing of assets and secreting property. (Id. ¶ 5). Accordingly, Blake determined that intervention was necessary to prevent the liquidation of plaintiff's assets so that plaintiff could satisfy any judgment obtained in the wrongful death action. (Id.) The superior court granted the temporary restraining order on September 17, 2013, and then a preliminary injunction on October 7, 2013. (Id. ¶¶ 6, 7 and Exs. 23, 28). The superior court additionally appointed Brenda Martin as the Receiver for Carias Properties, LLC. (Id. ¶ 7 and Ex. 23).

         On June 4, 2014, the superior court entered judgment by default in the wrongful death action and awarded the Estate of Rojas $2, 000, 000.00 in compensatory damages and $6, 000, 000.00 in punitive damages. (Id. ¶ 8 and Ex. 21). Then on July 10, 2014, the superior court entered an order to sell plaintiff's property and directed the receiver, Brenda Martin, to employ a commercial realtor to sell the only asset of Carias Properties, L.L.C.-real property located at 4004 Capital Boulevard, Raleigh, North Carolina. (Id. ¶ 9 and Ex. 29). The property then was sold yielding net proceeds in the amount of $113, 233.74. (Id. ¶¶ 9-12 and Exs. 30-34). After the payment of attorneys fees and costs, the remaining net proceeds from the sale of plaintiff's property were distributed to plaintiff's sons. (Id. ¶¶ 15-19 and Ex. 23). The proceeds from the sale of plaintiff's property are the only funds which have been applied to the satisfaction of the judgment in the wrongful death action. (Id. ¶ 20).

         In 2014, defendant Harrison ordered a criminal and an internal investigation into plaintiff's allegations against defendant Cornaire. (Harrison Aff. ¶ 9). At the conclusion of the investigation, the Sheriff's Department determined that there was no criminal activity or conflict of interest with respect to defendant Cornaire. (Id. ¶ 10). Defendant Cornaire, however, was disciplined for his off-duty employment for plaintiff because it violated the Sheriff's Department's policies and procedures. (Id. ¶ 11). As a result of the policy violation, defendant Cornaire was demoted from Wake County Sheriff's Deputy to a detention officer on July 10, 2013. (Cornaire Aff. ¶ 23; (DE 170), Ex. A).


         A. Motion to Apply ...

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