Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Tate v. Smith

United States District Court, M.D. North Carolina

May 5, 2017

HERMAN V. TATE, Plaintiff,
v.
LEWIS SMITH, et al., Defendants.

          MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          L. Patrick Auld United States Magistrate Judge

         This case comes before the undersigned United States Magistrate Judge for a recommendation on “Defendants' Motion for Summary Judgment” (Docket Entry 89) (the “Summary Judgment Motion”). For the reasons that follow, the Court should grant the Summary Judgment Motion.

         BACKGROUND

         I. Procedural History

         In February 2014, Plaintiff Herman V. Tate (“Plaintiff”) commenced this action against three Albemarle Correctional officers, Lewis Smith (occasionally, “Smith”), Richard Russell (occasionally, “Russell”), and Wendy Brewton (“Brewton”), alleging that they illegally destroyed his personal photographs. (Docket Entry 2; see also Docket Entries 11, 66.) In September 2014, Russell and Brewton moved to stay this action pending final resolution of related North Carolina Industrial Commission (the “NCIC”) proceedings. (Docket Entry 34 (the “Stay Motion”).)[1] In support of their Stay Motion, Russell and Brewton submitted various materials from those proceedings (see Docket Entries 35-1 to 35-34), including the NCIC's final decision and order in Plaintiff's action against the North Carolina Department of Public Safety (the “NCDPS”) regarding the destruction of his photographs (see Docket Entry 35-29 (the “NCIC Opinion”)).[2] The Court (per United States District Judge Catherine C. Eagles) granted the Stay Motion. (Docket Entry 40.) The stay remained in place until March 2016, at which time, in accordance with the Court's order (see Docket Entry 65 at 2), Plaintiff filed an amended complaint (Docket Entry 66) (the “Second Amended Complaint”). (See Text Order dated Mar. 11, 2016.)

         The following month, Smith, Brewton, and Russell (collectively, the “Defendants”) filed their Answer. (Docket Entry 70.)[3] In so doing, Smith waived his insufficiency of service of process defense. (See generally Docket Entry 81; see also Docket Entry 83.) Shortly thereafter, Plaintiff filed a motion for summary judgment (Docket Entry 71), which the Court denied for failure to adduce sufficient supporting evidence (see Docket Entry 77 at 1 (explaining that “[Plaintiff] has not offered any evidence in support of his motion, other than some pieces of paper as to which the purpose and meaning is not clear”)). In January 2017, Defendants filed their Summary Judgment Motion. (See Docket Entry 89.) Plaintiff sought an extension of time to respond to the Summary Judgment Motion, on the grounds that he will “be release[d] from pri[so]n[] ¶ 2-1-2017, ” and desired “30 days to seek counsel” following his release. (Docket Entry 97 at 1.) The Court (per the undersigned) extended Plaintiff's response deadline to March 14, 2017 (see Text Order dated Feb. 21, 2017), but Plaintiff failed to file a response to the Summary Judgment Motion (see Docket Entries dated Jan. 4, 2017, to the present).

         II. Factual History

         This matter arises from Russell's destruction of Plaintiff's photographs on January 27, 2012. (See Docket Entry 11-2 at 9; see also Docket Entry 90, ¶ 12.) Based on the record before the Court, the following facts qualify as undisputed:

         Albemarle Correctional officers seized the photographs from Plaintiff during a scheduled visitation on January 15, 2012. (See, e.g., Docket Entry 35-2 at 2; Docket Entry 35-13 at 3-4; Docket Entry 90, ¶¶ 6-7; see also Docket Entry 2 at 3.) On January 25, 2012, an Albemarle Correctional Disciplinary Hearing Officer (occasionally, the “DHO”) conducted a hearing regarding the seizure of Plaintiff's photographs and ordered their return to Plaintiff (the “DHO Order”). (See, e.g., Docket Entry 35-11 at 10; Docket Entry 35-13 at 4; Docket Entry 71-2 at 1; Docket Entry 90, ¶¶ 9-10; see also Docket Entry 35-2 at 2; Docket Entry 66 at 3.) Russell knew of, but declined to comply with, the DHO Order when he destroyed Plaintiff's photographs. (See, e.g., Docket Entry 11-2 at 1-2, 9; Docket Entry 90, ¶ 12; see also Docket Entry 35-2 at 5; Docket Entry 66 at 3.)

         In contrast to the foregoing undisputed matters, the record presents diverging accounts of both the circumstances surrounding the introduction of the photographs into the visitation area and Defendants' duty to abide by the DHO Order. In that regard, the record reflects the following:

         A. DHO Order

         The DHO Order states that

DHO reviewed the evidence and felt that there were procedur[al] errors made at the scene of the incident. DHO request[s] that this case be addressed at the unit level through counseling with any reoccurr[e]nces to be addressed through Disciplinary. Confiscated items to be returned to [Plaintiff].

(Docket Entry 35-11 at 10.)[4] The DHO Order also dismissed the disciplinary charge against Plaintiff regarding this incident. (Id.)

         B. NCIC Deputy Commissioner's Decision

         Following an evidentiary hearing, NCIC Deputy Commissioner George T. Glenn, II, rendered a decision and order in Plaintiff's suit against the NCDPS (Docket Entry 35-13) (the “Deputy's Decision”). The Deputy's Decision contains the following findings of fact:

1. All the parties are properly before the North Carolina Industrial Commission and the Industrial Commission has jurisdiction of the parties and of the subject matter of this case. All parties are bound by and subject to the North Carolina Tort Claims Act. All parties have been correctly designated and there is no question as to the misjoinder or nonjoinder of any party.
2. On January 15, 2012 [P]laintiff was a prison inmate incarcerated in the custody and control of [the NCDPS] being housed at Albemarle Correctional Institution.
3. Plaintiff was scheduled for a visitor on January 15, 2012 and as he was entering the visiting area he brought with him 17 pictures of what he described as pictures of his family to show to his visitor. Plaintiff was searched prior to being allowed into the visiting area at which time he showed the officer the pictures, and he also showed the pictures to the officer working on the entry way into the area where he was searched. Both allowed him to go through with the pictures and [P]laintiff indicated that the reason he was allowed to go through their area with pictures is that they were new on the job.
4. When [P]laintiff got into the visiting area Officer Watkins noticed the pictures and asked [P]laintiff how he had gotten them into the visiting area and [P]laintiff told her that he had showed them to the officers working the area of entry into the visiting area and they had allowed him to keep the pictures and bring them into the visiting area.
5. Officer Watkins told [P]laintiff to put the pictures away but later returned to take the pictures after she had received a call over the radio instructing her to take the pictures because [P]laintiff was not allowed to have them in the visiting area in that it was against policy.
6. It is [the NCDPS's] policy that neither inmates nor visitors are allowed to bring or have pictures or mostly anything else in the visiting area and if anything is brought into the visiting area without prior approval it is considered contraband and is to be immediately taken and this includes pictures.
7. The inmates at Albemarle Correctional Institute are informed that they are not allowed to take anything into the visiting area unless it has been previously approved. Visitors are advised that they are not allowed to take anything into the visiting area unless it has been previously approved, including pictures.
8. Officer Watkins took the 17 pictures from [P]laintiff and the pictures were placed in the contraband safe in Lt. Richard Russell's office.
9. Plaintiff was charged with having contraband in the visiting area, the 17 pictures, and when his case was heard before the Disciplinary Hearing Officer, the hearing officer determined that there was procedur[al] error when the officers allowed [P]laintiff to take the pictures into the visiting area. He indicated that the matter needed to be addressed at the unit level through counseling with any reoccurrences to be addressed through disciplinary action . . . and that the confiscated items are to be returned.
10. Lt. Russell's duties at the time of this incident included the disposition of contraband. Lt. Russell reviewed the [DHO's] decision and when he noted that [the DHO] had recommended that the pictures be returned to [P]laintiff, he did not agree with that decision but felt that the pictures should be destroyed and because [sic] he was uncertain of how the pictures had gotten into the visiting area.
11. Lt. Russell contacted the Superintend[e]nt of Albemarle Correctional and explained his concern and asked what should happen to the pictures and he was told to destroy the same, therefore he destroyed the pictures.
12. Plaintiff is alleging that the [NCDPS] was negligent in destroying the 17 pictures and not either returning them to him or sending them to his home address given that he was not found guilty of the charges against him. It is clear that [P]laintiff is in disagreement with the Superintend[e]nt's decision to cause the pictures to be destroyed but he does not point to any policy the [NCDPS] may have breached which could possibly give rise to any negligence. The act that he complains of was an intentional act i.e. the decision to destroy the pictures.
13. Plaintiff has failed to prove that any employee/agent of [the NCDPS] was negligent and that if negligent that he is entitled to any relief.

(Id. at 3-5 (ellipsis in original).) Plaintiff appealed this decision. (See Docket Entry 35-29 at 2.)

         C. NCIC Opinion

         On July 31, 2014, the Full Commission of the NCIC reversed the Deputy's Decision and awarded Plaintiff $200 from NCDPS. (Id. at 2, 7.) In so doing, the NCIC made the following findings of fact:

1. All the parties are properly before the North Carolina Industrial Commission and the Industrial Commission has jurisdiction of the parties and of the subject matter of this case. All parties are bound by and subject to the North Carolina Tort Claims Act. All parties have been correctly designated and there is no question as to the misjoinder or nonjoinder of any party.
2. Plaintiff filed a claim for damages under the Tort Claims Act alleging that [the NCDPS's] employees and agents, including Captain Richard Russell, were negligent in destroying his personal property, specifically 17 family photographs, and that ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.