United States District Court, E.D. North Carolina, Western Division
W. FLANAGAN United States District Judge
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.
OF THE CASE
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
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.
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.
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.
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”),  Thomas O'Connell
(“O'Connell”),  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.
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
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. The Sheriff's defendants' appendix
included the following: affidavits from defendants Blomgren,
Cornaire, and Harrison, as well as non-parties Jebediah
Yoakum,  Charles Timothy Blake
(“Blake”),  Wake County Sheriff's Deputy
Derrick Johnson (“Johnson”), Christian Fernando
Palma (“C. Palma”), Fernando Alexander Palma
(“A. Palma”),  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.
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.
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.
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).
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.
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.)
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).
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).
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).
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).
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. (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. (Mem. in Supp. of Compl. p. 20).
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).
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),
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.)
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).
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).
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.
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).
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.
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).
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.)
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).
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).
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).
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).
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).
Motion to Apply ...