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Spivey v. Norris

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

March 29, 2017

DETECTIVE KEVIN NORRIS, in his official and individual capacity; LEWIS L. HATCHER, in his official capacity as Columbus County Sheriff; and WESTERN SURETY CO., as the SURETY for the Columbus County Sheriff, Defendants.



         This cause comes before the court on defendants' motions for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. The appropriate responses and replies have been filed and the matters are ripe for ruling. For the reasons discussed below, defendants' motions are granted in their entirety.


         Plaintiff filed this action on August 1, 2015, asserting seven claims arising out of alleged harassment by Detective Kevin Norris (Norris) of the Columbus County Sheriffs Office. On January 11, 2016, the Court allowed plaintiff to file an amended complaint and granted in part a motion to dismiss by Norris. Plaintiffs amended complaint asserts 42 U.S.C. § 1983 claims against Norris individually and in his official capacity for violation of plaintiff s Fourth, Fourteenth and First Amendment rights and malicious prosecution; against Sheriff Hatcher in his official capacity for supervisory liability under 42 U.S.C. § 1983; against Norris individually and in his official capacity for malicious prosecution, abuse of process, and intentional infliction of emotional distress under state law; against Norris in his individual capacity and Sheriff Harris in his official capacity for negligent infliction of emotional distress under state law; and a claim against Western Surety upon bond under N.C. Gen. Stat. § 58-76-5. Defendants Norris in his official capacity, Harris, and Western Surety have filed a motion for summary judgment on all claims. Defendant Norris in his individual capacity has moved separately for summary judgment on all claims.

         Plaintiff alleges that Norris is married to a close friend of plaintiff s mother and took advantage of this relationship to insert himself into plaintiffs life. Plaintiff further alleges that she became the subject and victim of a personal vendetta held by Norris, who, after attempting and failing to break up plaintiffs relationship with her husband, stopped plaintiffs husband on suspicion of driving while intoxicated and had plaintiff arrested on felony and misdemeanor charges involving an allegedly forged prescription for narcotic pain medication.

         The facts as they relate to plaintiffs charge, arrest, and prosecution are as follows. Plaintiff saw Dr. Lawson, a dentist, on August 17, 2012, to address swelling which had occurred following a root canal performed by a different provider. Lawson Dep. at 40-42. Dr. Lawson noted in his chart that he prescribed plaintiff penicillin and twenty tablets of Percocet[1] 10/650 that day. Id. at 42. Plaintiff returned to Dr. Lawson's office on August 20, 2012, for a tooth extraction and was prescribed twenty tablets of Percocet. Id. at 47.

         In the fall of 2012, Norris received information that plaintiff had tried to fill a prescription for narcotic pain medication at a CVS Pharmacy in Loris, South Carolina, and that the pharmacist could not verify the prescription as being legitimate. [DE 52 at 8]. Norris further became aware of an allegation that plaintiff had passed a forged prescription at the Rite Aid Pharmacy in Whiteville, North Carolina in August 2012. Id. Norris referred the matter to State Bureau of Investigation (SBI) Agent Cherry for further investigation due to Norris' marriage to a close friend of plaintiff s mother. Norris Dep. 19; 39-40. Although Norris referred the matter to Agent Cherry, Norris continued to participate in the investigation, accompanying Cherry to interviews and meetings. See generally [DE 52].

         Cherry reviewed plaintiffs pharmacy records and reviewed the original prescription from Dr. Lawson which had been filled at the Rite Aid Pharmacy on August 17, 2012. Cherry Dep. at 36-37; 61. Cherry determined that it appeared to him the prescription had been altered to reflect that thirty tablets of Endocet/Percocet had been prescribed as opposed to twenty tablets. Id. at 100. On November 6, 2012, Cherry and Norris spoke to Dr. Lawson, who told the investigators that his records reflected that twenty tablets of Percocet had been prescribed to plaintiff on August 17, 2012. [DE 52 at 43]. Cherry's notes also reflect that he and Norris interviewed Dr. Lawson a second time on November 29, 2012, at 11:10 a.m. regarding Dr. Lawson's general procedures when writing prescriptions. [DE 52 at 11-12]. On November 7, 2012, Cherry and Norris, along with an agent from the South Carolina Department of Health and Environmental Control, interviewed plaintiff at her place of employment in South Carolina. [DE 52 at 15-16]. Plaintiff denied altering a prescription but stated that her husband frequently took her Percocet pills for his own use without plaintiffs permission. Id; Spivey Dep. at 70.

         On November 19, 2012, an order was filed in Columbus County Superior Court directing Dr. Lawson to provide plaintiffs medical records to the Columbus County Sheriffs Office. [DE 52 at 18-19]. On November 29, 2012, Cherry and Norris met with Assistant District Attorney (ADA) Nance who, after hearing the recitation of the case, found that there was probable cause to arrest plaintiff. ADA Nance told Cherry to seek warrants for plaintiffs arrest. Cherry Dep. 13, 24, 94-5. The same day, Cherry appeared before Magistrate G.L. Greene at 9:30 a.m. and provided as the complaining witness sworn testimony regarding plaintiff. Magistrate Greene determined that probable cause had been established and signed arrest warrants for plaintiff for unlawfully obtaining possession of Percocet by altering a prescription, N.C. Gen. Stat. § 90-108(a)(10), and unlawful possession of more than fourteen but less than twenty-eight grams of opiates. N.C. Gen. Stat. § 90-95(h)(4); [DE 52 at 57-58]. Also the same day, Cherry telephoned plaintiff to inform her of the outstanding warrants for her arrest and plaintiff later turned herself in. Spivey Dep. 74-76.

         On January 15, 2013, plaintiff, represented by counsel, entered an Alford plea[2] to a reduced charge of misdemeanor possession of a Schedule II controlled substance. [DE 63-3 at 8-17]. Plaintiff understood that this outcome would allow her to keep her nursing license and be able to expunge her criminal record upon satisfaction of certain conditions under N.C. Gen. Stat. § 90-96. Spivey Dep. 80-81. Following entry of her plea plaintiff was sentenced to a term of probation. On February 22, 2013, a dismissal notice of reinstatement was filed dismissing plaintiffs misdemeanor simple possession conviction "per compliance to 90-96 conditions." [DE 63-3 at 6]. Plaintiff contends that, although the document does not indicate as much, her conviction was dismissed following production by her criminal defense attorney of the original.

         When asked for this case to review the prescription that he wrote on August 17, 2012, Dr. Lawson stated that in his handwriting thirty tablets of Percocet 10/650 had been prescribed. Lawson Dep. at 56-57. Dr. Lawson further stated that he had not been shown the August 17, 2012, prescription by Cherry or Norris when they interviewed him, and that if he had he would have told them that it was in his handwriting and that he had written the prescription for thirty tablets, not twenty as was reflected in his chart. Id. at 57-59. Dr. Lawson could not recall whether when he spoke to Cherry and Norris they indicated that plaintiff was being investigated for having altered Dr. Lawson's prescription, and that if they had he would have asked to see the prescription from the pharmacy to ensure that there was not a mistake in his records. Id. at 62-63.

         The facts as they relate to the stop of plaintiff s husband's vehicle are as follows. Norris has proffered evidence that while on patrol on November 8, 2012, the day after plaintiff was interviewed by Norris and Cherry at her workplace, Norris witnessed a car travel left of center and come close to hitting a bridge. Norris Dep. at 32. Norris initiated a vehicle stop, interacted with Mr. Spivey who was driving the car, noticed the odor of alcohol, and contacted the traffic team who then took control of the scene. Id. at 36. Plaintiff does not dispute that another deputy completed the stop and transported her husband to the county jail where his alcohol level was tested and he received a citation. Spivey Dep. at 28-9.


         A motion for summary judgment may not be granted unless there are no genuine issues of material fact for trial and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett,477 U.S. 317, 323 (1986). If that burden has been met, the non-moving party must then come forward and establish the specific material facts in dispute to survive summary judgment. Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,475 U.S. 574, 588 (1986). In determining whether a genuine issue of material fact exists for trial, a trial court views the evidence and the inferences in the light most favorable to the nonmoving party. Scott v. Harris,550 U.S. 372, 378 (2007). However, "[t]he mere existence of a scintilla of evidence" in support of the nonmoving party's position is not sufficient to defeat a motion for summary judgment; "there must be evidence on which the [fact ...

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