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Everette v. Barnes

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

June 26, 2017

THOMAS EVERETTE, JR., Plaintiff,
v.
WILLIAM ANTHONY BARNES in his individual capacity; and DIANA LEE DRAUGHN in her individual capacity, Defendants.

          ORDER

          LOUISE W. FLANAGAN United States District Judge.

         This matter is before the court on its consideration of summary judgment in favor of defendants[1] based upon the record presented. Plaintiff has responded to the court's order identifying grounds for summary judgment (DE 139). Also pending is plaintiff's motion for entry of default against defendant Diana Lee Draughn (“Draughn”) (DE 145). In this posture the issues raised are ripe for ruling. For the following reasons, the court grants summary judgment in favor of defendants, and denies as moot plaintiff's motion for entry of default.

         STATEMENT OF THE CASE

         Plaintiff commenced this action pro se on March 4, 2014, and filed amended complaint on April 29, 2014, asserting state and federal constitutional violations based upon alleged deprivation of his personal property, a 2003 BMW (“the BMW”), without due process of law. As pertinent to the instant motion, plaintiff asserts that on September 26, 2012, defendant William Anthony Barnes (“Barnes”), then a police officer for the town of Princeville, North Carolina, purchased the BMW without plaintiff's permission from a wrecker company, which previously had towed the BMW after it was seized in a traffic stop by the Tarboro Police Department. Plaintiff contends that defendant Draughn, then a notary public, assisted Barnes with creating a forged application of title. Plaintiff seeks compensatory and punitive damages.

         On February 16, 2015, this court denied a motion for summary judgment filed by plaintiff as untimely. In the same order, the court dismissed several former defendants in this action. The court dismissed former defendants Jesse Vann White (“White”) and White's Wrecking Service, Inc. (“White's Wrecking”) on the basis that they were not acting under color of state law. The court dismissed former defendant Princeville Police Department because that entity cannot be sued under North Carolina law. The court dismissed former defendant Town of Princeville and defendant Barnes in his official capacity because plaintiff failed to allege any basis for municipal liability. The court dismissed former defendant Donyell Weaver because plaintiff had failed to allege a claim of bystander liability. Finally, the court dismissed plaintiff's claims under the North Carolina Constitution because plaintiff had adequate remedies under state law.

         Upon service, defendant Barnes filed a motion to dismiss for failure to state a claim, which the court denied by text order entered May 26, 2015, noting inter alia that the memorandum in support thereof was “fact dependent.” Defendant Barnes filed an answer to the complaint, and case management order entered July 1, 2015, requiring discovery to be completed by December 1, 2015, and dispositive motions filed by January 4, 2015, later extended to March 2, 2016. On September 21, 2015, pro bono counsel entered an appearance for plaintiff.

         Although defendant Draughn was served on July 25, 2014, and filed an answer pro se on August 18, 2014, the court struck defendant Draughn's answer on May 10, 2016, due to her failure to update her mailing address. On September 23, 2016, the court directed plaintiff in text order to file affidavit or otherwise upon which the clerk may enter default as to defendant Draughn.

         That same date, the court notified the parties of the court's intention to consider summary judgment of its own initiative, and directed the parties to file statements of material facts, appendix of evidence or other documentation. In response to the court's order, plaintiff filed a motion for summary judgment against defendant Barnes, accompanied by a memorandum of law in support thereof and a statement of material facts. In support of summary judgment, plaintiff relied upon the following evidence: 1) deposition of White; 2) deposition of defendant Barnes; 3) a July 26, 2012, letter from the North Carolina Division of Motor Vehicles (“DMV”) to Antonio Denard McClendon (hereinafter the “July 26, 2012, DMV notice”); 4) a DMV form report of unclaimed motor vehicles completed by White (hereinafter “Unclaimed Vehicle Report”); 5) a bill of sale of the BMW from White to defendant Barnes; 6) criminal indictment of White; 7) a DMV Form MVR-4, Application for Duplicate Certificate of Title and Removal of Lien (hereinafter, the “MVR-4 form”); 8) a July 10, 2012, letter from DMV to White's Wrecking (hereinafter, the “July 10, 2012, DMV letter”); 9) criminal indictment of defendant Barnes; and 10) criminal jury verdict against defendant Barnes. (See DE 130). Plaintiff also relied upon materials filed in support of plaintiff's prior motion for summary judgment, including a certificate of title for the BMW issued to plaintiff on June 12, 2013. (DE 78-4).

         Defendant Barnes filed a response to the motion for summary judgment accompanied by a memorandum of law in opposition and statement of material facts. In opposition to summary judgment, defendant Barnes directed the court to much of the same evidence relied upon by plaintiff, including the depositions of White and defendant Barnes, the Unclaimed Vehicle Report, and bill of sale of the BMW from White to defendant Barnes. (See DE 136). Plaintiff then replied in support of summary judgment.

         On February 28, 2017, this court denied plaintiff's motion for summary judgment. In addition, the court gave notice to plaintiff that it was considering entry of summary judgment in favor of defendant Barnes and defendant Draughn for the reasons stated in the court's order. The court gave plaintiff an opportunity to file a response to the order. Plaintiff filed a response to the court's order on April 6, 2017. In his response, plaintiff relies upon his verified complaint, as well as a new declaration in support of his claims, accompanied by exhibits, including estimates for repair and sale of the BMW, photographs of parts of the BMW, and a state court document from a criminal case against defendant White.

         That same date, plaintiff also filed a motion for entry of default as to defendant Draughn. The court has held in abeyance consideration of the motion for entry of default until the court has addressed the issues raised in response to the court's order on summary judgment.

         STATEMENT OF FACTS

         The undisputed facts may be summarized as follows. Plaintiff is the owner of the BMW according to a certificate of title issued by DMV on June 12, 2013. (DE 129 ¶ 1; DE 78-4). Plaintiff purchased the BMW in October 2010 in Charlotte for $25, 500.00, and has had an ownership interest in the BMW from that date to present. (DE 146-1 ¶1).

         The Tarboro Police seized the BMW in connection with a traffic stop on July 4, 2012. (DE 129 ¶2). Brian Perry, plaintiff's stepson, was driving the BMW at the time of the traffic stop. (Id. ¶¶ 3-4). The BMW was in good working condition at the time of the traffic stop.

         Tarboro Police contacted White, doing business as White's Wrecking, to tow the BMW. (Id. ¶ 5). Law enforcement agencies frequently contacted White to tow vehicles that had been seized by the police. (Id. ¶ 6). White towed the BMW to a lot at his business location. (Id. ¶ 7). On two or three prior occasions, White sold a vehicle he had towed at the request of law enforcement. (Id. ¶ 8).

         On July 6, 2012, White completed an “Unclaimed Vehicle Report” form, which states that the BMW was left for storage on July 4, 2012, by Tarboro Police Department, because the “Police had stop check on people driving”; that a bill was left in the car identifying “Brian Perry 300 Woodcroft Ln Tarboro NC 2788[]”; and there was no key or license plate with the BMV. (DE 130-4). On July 10, 2012, DMV sent White's Wrecking a letter acknowledging receipt of the Unclaimed Vehicle Report, stating that DMV “has sent notice to the below listed person(s) and lienholders (if applicable)”:

OWNER: ANTONIO DENARD MCCLENDON 100 SPRING RUN DR APT D5 100 SPRING RUN DR WINSTON SALEM NC 27106-6412
cc: UNIVERSAL FINANCE INC - 106 PO BOX 1087 MOCKSVILLE NC 27028-1087 Lien Dated: 1/12/2009
cc: BRIAN PERRY 300 WOODCROFT LN TARBORO NC 27886 Lien Dated: [blank]

(DE 130-8).

         On July 26, 2012, DMV sent a notice to McClendon, at the address listed in the July 10, ...


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