United States District Court, E.D. North Carolina, Western Division
C. DEVER III CHIEF UNITED STATES DISTRICT JUDGE
March 16, 2016, in Wilson County Superior Court, Wesley Leon
Bethea ("Bethea" or "plaintiff') sued the
City of Wilson, the Wilson Police Department, and nine of its
officers. See [D.E. 3-1] 71-76. On April 15, 2016,
defendants removed the action to this court [D.E. 3]. On
April 4, 2016, in the United States District Court for the
Middle District of North Carolina, Bethea filed a complaint
against the City of Wilson, the Wilson Police Department, and
two officers, which that court transferred to this district
on May 16, 2016. See Compl. & Order, Bethea v.
Ellis. No. 5:16-CV-259-D, [D.E. 2, 6] (E.D. N.C. ); 28
U.S.C. § 1406(a).
September 16, 2016, the court consolidated the two cases and
directed Bethea to file a single amended complaint [D.E. 32].
On October 4, 2016, Bethea filed his amended complaint [D.E.
33]. On October 19, 2016, all defendants moved to dismiss the
complaint under Federal Rules of Civil Procedure 12(b)(2),
(5), and (6) [D.E. 36]. Pursuant to Roseboro v.
Garrison, 528 F.2d 309, 310 (4th Cir. 1975) (per
curiam), the court notified Bethea about the motion to
dismiss, the consequences of failing to respond, and the
response deadline [D.E. 38]. On November 7, 2016, Bethea
responded in opposition to the motion [D.E. 42]. Bethea has
also filed several discovery- related motions, including for
a protective order [D.E. 44, 45] and to compel [D.E. 51
The parties have also filed cross-motions for summary
judgment [D.E. 43, 57], and Bethea seeks an extension of time
to respond to defendants' motion for summary judgment and
for an "exemption from Local Civil Rule 56.1."
[D.E. 65]. As explained below, the court grants in part and
denies in part plaintiffs motions, and grants in part
defendants' motion to dismiss. The motions for summary
judgment remain pending.
complaint concerns a criminal prosecution against him in
Wilson County Superior Court. See Am. Compl. [D.E. 33] 8. On
August 5, 2010, defendant Ellis, a detective with the Wilson
Police Department ("WPD"), presented a search
warrant to a magistrate for Bethea's residence. See Am.
Compl. [D.E. 33] 8; Pl's Mot. Summ. J., Ex. D [D.E. 43-4]
4-5 (copy of search warrant). Ellis submitted an affidavit in
support of the search warrant, stating that he had used a
confidential informant to conduct "several controlled
purchases of cocaine . . . from [Bethea's]
residence." Pl's Mot. Summ. J., Ex. D [D.E. 43-4] 4.
Ellis also stated that Bethea's "reputation is poor
in that he is reported to violate the criminal law of our
state, particularly by selling controlled substances, "
noted previous criminal charges from 2008, 2004, and 1989,
and stated that Bethea was "convicted of several
felonies including breaking and entering and second degree
burglary in the 1990's and served several years in prison
as a result of those convictions." Id. 4-5. The
magistrate signed the search warrant. Id.
August 5, 2010, Ellis executed the search warrant on
Bethea's home with defendants Corprew, Emory, Branch,
Ruiz, Standi, Seagroves, Winstead, Stroud, "and other
various members of the Wilson Police Department." Am.
Compl. [D.E. 33] 8. On February 7, 2011, a grand jury
indicted Bethea for trafficking in cocaine by possession in
violation of N.C. Gen. Stat. § 90-95(h) based on
evidence seized from Bethea's home during the search. See
Am. Compl. [D.E. 33] 8; Pl's Mot. Summ. J., Ex. A [D.E.
43-1] 2 (copy of indictment indicating offense date of August
trial, Bethea moved to suppress the evidence on the ground
that Ellis's affidavit in support of the search warrant
contained false information. See PL's Mot. Summ. J., Ex.
D [D.E. 43-4] 2 (copy of state court order). The trial court
held a hearing and agreed with Bethea that certain statements
in Ellis's affidavit were false, but concluded that the
false statements "were not included in the affidavit
intentionally and knowingly, in bad faith, or with reckless
disregard for the truth, " and "were not necessary
to the finding of probable cause for the issuance of the
search warrant." Id. at 3. Thus, the trial
court denied the motion to suppress. Id. Bethea
"asserts that the entire warrant is a lie and not just
the 3 crucial points that the criminal court determined were
lies." Pl's Resp. Opp'n Mot. Dismiss [D.E. 42]
5. On March 5, 2013, after deliberating for "less than
an hour, " the jury found Bethea not guilty of the
indictment. Id.; see Pl's Mot. Summ. J., Ex. A
[D.E. 43-1] 3 (copy of verdict).
notes that he encountered Ellis and Corprew in 2008. See
Pl's Resp. Opp'n Mot. Dismiss [D.E. 42] 8, 10.
"In August 2008 Plaintiff was stopped by David Chad
Ellis and Det. Corprew for a traffic violation. Plaintiff was
taken to the local police station where he was subsequently
strip searched" under protest. Id. at 8. The
charges against Bethea arising out of the incident were
dismissed. Id.; see Pl's Mot. Summ. J., Ex. F
[D.E. 43-6] 2 (criminal information screen). Bethea
"filed a formal complaint" which defendant Branch
investigated "and found in favor of the officers."
Pl's Resp. Opp'n Mot. Dismiss [D.E. 42] 8-9. Bethea
asserts he "still had a year in which to file charges at
the time of his arrest for trafficking in cocaine."
Id. at 9. Bethea also contends that Ellis did not
comply with WPD policy requiring certain documentation for
confidential informants. See Id. at 4-5; see
also Pl's Mot. Summ. J., Ex. B [D.E. 43-2] (copy
of WPD policy on handling confidential sources of
information); c.f. Defts.' App'x, Ex. J [D.E. 46-2]
225-231 (redacted confidential informant documentation).
names as defendants the City of Wilson and its mayor (Rose),
the WPD, its chief (Hopkins), and nine of its officers. Am.
Compl. at 2-6. Bethea seeks monetary damages. Id. at
"vehemently objects to Defendants' scope of
Discovery in Defendants' proposed discovery plan"
and "proposes that Defendants' scope of discovery be
limited to any new evidence not presented at Plaintiffs
criminal trial/case, " [D.E. 45] 1, and seeks "to
exclude all testimony along the same narrative as given by
David Chad Ellis in the Defendants Motion to Dismiss and
Plaintiffs criminal trial." [D.E. 44] 1. Bethea also
seeks discovery concerning the identity of the confidential
informant [D.E. 51], although he has never served defendants
with any formal discovery. See Defts.' Resp. Opp'n
[D.E. 53] 4.
discovery motions fail to comply with Local Civil Rule
7.1(c)(2), which provides:
No discovery motion will be considered by the court unless
the motion sets forth or has attached thereto, by item, the
specific question, interrogatory, etc., with respect to which
the motion is filed, and any objection made along with the
grounds supporting or in opposition to the objection. Counsel
must also certify that there has been a good faith effort to
resolve discovery disputes prior to the filing of any
See also Fed.R.Civ.P. 37(a)(1) ("The motion
must include a certification that the movant has in good
faith conferred or attempted to confer with the person or
party failing to make disclosure or discovery in an effort to
obtain it without court action."). "When a party
fails to comply with Local Civil Rule 7.1, a court may deny
its motion." Higgins v. Spence & Spence.
PA. No. 5:07-CV-33-D(1), 2009 WL 536069, at *2 (E.D.
N.C. Mar. 3, 2009) (unpublished) (collecting cases); see
Laschkewitsch v. Legal & Gen. Am. Inc.d/h/a
Banner Life Ins. Co., No. 5:15-CV-251 -D, 2017 WL
1012996, at *2 (E.D. N.C. Mar. 14, 2017) ...