United States District Court, W.D. North Carolina, Asheville Division
TRACEY N. DEBRUHL, Plaintiff,
BUNCOMBE CO. SHERIFF'S DEPT. et al., Defendants.
MEMORANDUM AND RECOMMENDATION AND ORDER
MATTER is before the Court on “Buncombe
County's Motion to Dismiss” (document #7) filed
February 8, 2017, Plaintiff's “Introduction of New
Evidence. Reply to Defendants [sic] RESPONSE TO NOT RESPOND.
Motion to resume case. Motion for Sheriffs Department to
produce PUBLIC RECORD!” (document #11) filed March 15,
2017, and the parties' associated briefs and exhibits
(documents ##7, 9-11).
matter was referred to the undersigned Magistrate Judge
pursuant to 28 U.S.C. § 636(b)(1), and these Motions are
now ripe for the Court's consideration.
fully considered the arguments, the record, and the
applicable authority, the undersigned respectfully recommends
that Defendants' Motion to Dismiss be granted
and Plaintiff's Motion be denied, as discussed
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
action arises from Plaintiff's alleged mistreatment by
the Buncombe County Sheriff's Department in 2012.
Defendants are Buncombe County, Buncombe County Sheriff's
Office, Sheriff Jack Van Duncan, Lieutenant Roney Hilliard,
Lieutenant Kevin Calhoun, and Public Information Officer
Complaint alleges that the events giving rise to this action
occurred at Plaintiff's mother's home on December 27,
On 12/27/12 Asheville City Police operating outside of City
Jurisdiction in what can only be viewed as a retaliatory act.
From where Plaintiff was solely doing as trained thru
Buncombe Schools & Federal Military training. To which
helped the FBI convict APD officers. To which lead up to
Buncombe County Sheriff Officers going to Plaintiff home.
Portraying themselves being there under false pretense. Where
country Officers committed Class C & Class F felonies
against Plaintiff leaving him with as defineded by VA Charles
George & Mission Hospital guest doctor Traumatic Brain
Injury &/or Post Traumatic Stress. Prior to the attack on
Plaintiff he was a 10 yr honorably discharge U.S. Marine
& Wounded Warrior Project Alumni Due to service related
back injury. Project Coordinator, Construction & business
owner w/ Shell, Pennzoil, Quaker State, Midas, Wachovia &
many other national cooperation. Since Plaintiff was attacked
he has had trouble with work, communication, relations &
most areas of survival. Plaintiff was honorably served &
doing as trained to speak up which should be encouraged to
promote Constitutional rights among the foundation to be a
Doc. 1 at 11.
Plaintiff acknowledges in his Complaint, he made the same
allegations in an earlier case filed in Buncombe County
Superior Court. In the Amended Complaint filed on March 10,
2016 he alleged:
DECEMBER 27, 2012 PLAINTIFF WAS ATTACKED AT HIS HOME AFTER
PUBLICALLY SPEAKING OUT ON FACEBOOK ABOUT AN ON GOING
INVESTIGATION UNBEKNOWNST TO PLAINTIFF MORE THAN THE DEGREE
HE EXPERIENCED. PLAINTIFFS MOTHER WAS THE VICTIM TO A ROBBERY
WHO'S CULPRIT CONFESSED & TURNED STATES EVIDENCE TO
WHAT OPENED ASHEVILLE CITY EVIDENCE ROOM AUDIT. TO THE
PLAINIFFS BEST UNDERSTANDING OFFICERS WERE IMPOSTERING
PLAINTIFFS FRIEND ON SAID NIGHT AS PLAINTIFF WAS ARGUING
PLAINTIFFS RELIGIOUS VIEWS THAT BAD THINGS DESERVE TO HAPPEN
TO BAD PEOPLE. WHEN OFFICERS KNOCKED ON THE DOOR STATING
PLAINTIFFS MOTHER HAD BEEN HARMED. WITH PLAINTIFF OPENING
DOOR IN COMPLIANCE 4 OFFICERS IMMEDIATELY DRUG HIM TO THE
GROUND WITH AN ARMBAR PROCEDURE. 2ND OFFICER GRABBING LEFT
ARM TRICEPT WHILE PINNING LOWER ARM WITH KNEE CHOKING/HOLDING
PLAINTIFFS CHEEK FIRMLY TO THE GROUND. OFFICER WHO KNOCKED
TAZING THE BACK WITH EXTENDED ARM TAZER DEVISE AND THE 4TH
LARGEST OF THE OFFICERS KICKING THE REAR "SOFT SPOT
REGION" OF PLAINTIFFS HEAD WHILE WEARING COMBAT STYLE
BOOTS. OFFICER KICKING SO HARD THAT AFTER THE 4TH KICK HE
LOST HIS BALANCE & FELL OF PLAINTIFFS MEAGER TRAILER
PORCH. PLAINTIFF WAS PINNED THE WHOLE TIME BEING KICKED.
OFFICER THAT FELL THEN PULLED PLAINTIFF OFF OF PORCH AS
OTHERS CAME AROUND & JOINED "CLUBBING" STYLE
HITS TO VICTIMS BACK. PLAINTIFF WAS ALREADY A WOUNDED
VETERAN. THE WHOLE TIME DURING ATTACK PLAINTIFF WAS YELLING
"I'm not Resisting until it became cries of Jesus
get these evil people off of me”
Doc. 7-1 at 2.
Court Judge Gary Gavenus granted a Rule 12(b)(6) motion to
dismiss the state case on May 16, 2016. See Doc. 7-2.
appeal to the North Carolina Court of Appeals was dismissed
on procedural grounds by Superior Court Judge Sharon Tracey
Barrett on November 29, 2016. See Doc. 7-3.
December 22, 2016, Plaintiff filed the instant Complaint.
Doc. 1. On February 8, 2017, Defendants filed their Motion to
Dismiss. On March 15, 2017, Plaintiff filed his Motion. ...