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Debruhl v. Buncombe Co. Sheriff's Dept.

United States District Court, W.D. North Carolina, Asheville Division

March 30, 2017

TRACEY N. DEBRUHL, Plaintiff,
v.
BUNCOMBE CO. SHERIFF'S DEPT. et al., Defendants.

          MEMORANDUM AND RECOMMENDATION AND ORDER

         THIS 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).

         This 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.

         Having 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 below.

         I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

         This 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 Natalie Bailey.

         The Complaint alleges that the events giving rise to this action occurred at Plaintiff's mother's home on December 27, 2012:

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 free nation.

Doc. 1 at 11.

         As 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.

         Superior Court Judge Gary Gavenus granted a Rule 12(b)(6) motion to dismiss the state case on May 16, 2016. See Doc. 7-2.

         Plaintiff's 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.

         On 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. ...


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