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Norton v. Rosier

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

September 29, 2017

CALVIN TYRONE NORTON, Plaintiff,
v.
JEFFREY ROSIER, in his individual capacity, Defendant.[1]

          ORDER

          LOUISE W. FLANAGAN United States District Judge.

         This matter is before the court on plaintiff's motion for summary judgment (DE 63), defendant's motion for summary judgment (DE 61), and defendant's motion to strike (DE 71). The issues raised have been fully briefed and are ripe for adjudication. For the following reasons, this court denies plaintiff's motion, denies in part and grants in part defendant's motion for summary judgment, and denies defendant's motion to strike.

         STATEMENT OF THE CASE

         On November 10, 2014, plaintiff filed this civil rights action, pro se, against defendant, Administrative Chief of Police of the City of Whiteville, North Carolina, and against former defendant City of Whiteville, North Carolina. (DE 1). In his unverified complaint, plaintiff alleged that defendant conducted an illegal traffic stop of plaintiff in South Carolina, in violation of the Fourth Amendment to the United States Constitution, the Law of the Land Clause of the North Carolina Constitution, and the South Carolina common law prohibiting false imprisonment. (Id.).

         On December 11, 2014, former defendant City of Whiteville filed a motion to dismiss. (DE 11). On March 5, 2015, the court granted former defendant City of Whiteville's motion to dismiss, dismissing the case in its entirety. (DE 16, 17). The court held, in relevant part, that the alleged traffic stop is “so de minimus that it fails to amount to a constitutional violation or cognizable § 1983 claim against Chief Rosier individually”; that plaintiff does not allege “official policy, practice, or custom of the City of Whiteville such that it meets the requirements for bringing a cognizable § 1983 claim against a local government”; and that the court declines to exercise supplemental jurisdiction over plaintiff's remaining state-law claims. (DE 16 at 5).

         Plaintiff appealed the court's March 5, 2015, ruling, and the United States Court of Appeals for the Fourth Circuit affirmed in part, vacated in part, and remanded the case by unpublished per curiam opinion, affirming the court's dismissal of plaintiff's claim against former defendant City of Whiteville but holding that “[t]he temporary detention of an individual during a traffic stop, even if only for a limited time or purpose, constitutes a Fourth Amendment seizure, ” thereby reinstating plaintiff's § 1983 and pendant state law claims against defendant. (DE 22 at 3; DE 23).

         On February 16, 2017, plaintiff filed the instant motion for summary judgment. (DE 63). In support of his motion, plaintiff filed defendants' responses to plaintiff's first set of interrogatories and request for production of documents (DE 63-2) and attachments to defendants' response to discovery requests (DE 63-3). On March 13, 2017, defendant filed a response in opposition to plaintiff's motion for summary judgment. In support of his response, defendant filed an amended declaration (“Rosier Amend. Decl.”) (DE 64-1) and record on appeal in case no. 10-CVD-152, Tiffanee Annette Norton v. Calvin Tyrone Norton, ( N.C. Ct. App. 2017) (DE 64-2).

         In the mean time, on February 15, 2017, defendant filed his instantmotion for summary judgment. (DE 61). In support of his motion, defendant filed a declaration (“Rosier Decl.”) (DE 61-1); Whiteville Police Department Complaint Report (DE 61-2); Letter Re: Departmental Complaint (DE 61-3); Letter to Investigator Kelley and attached documents (DE 61-4); Probationary Certification (DE 61-5); and General Certification (DE 61-6).

         On April 20, 2017, plaintiff filed a response in opposition to defendant's motion for summary judgment. (DE 68). In support of his response, plaintiff filed a declaration. (DE 68-1). On May 4, 2017, defendant filed a reply to plaintiff's response, challenging in part the legal sufficiency of plaintiff's filed declaration, and in support of his motion, filed an affidavit declaration of Sally Mann (DE 69-1) and affidavit declaration of Jonathan Medford (DE 69-2). On May 16, 2017, plaintiff filed a sur-reply, entitled “plaintiff's reply response to Rosier's reply, ” and in support of his motion, filed a second declaration (“Norton Decl.”) (DE 70-1), declaration of Connie Robinson (“Robinson Decl.”) (DE 70-2), and emails (DE 70-3).

         On May 25, 2017, defendant filed a motion to strike plaintiff's sur-reply (DE 71), and on June 5, 2017, plaintiff filed his response to defendant's motion to strike (DE 72). This matter was reassigned to the undersigned district judge on July 28, 2017.

         STATEMENT OF THE FACTS

         Except as otherwise noted below, the undisputed facts are as follows.

         Plaintiff's complaint relates to a traffic stop allegedly conducted by defendant of plaintiff's vehicle on September 4, 2014. Defendant is the Administrative Chief of Police for Whiteville, who at all relevant times, was not certified as a law enforcement officer in the state of North Carolina. (Rosier Decl.¶¶ 19-20; DE 61-5; DE 61-6; Norton Decl. ¶¶ 12, 17, 19). Defendant owns a condominium located in the Myrtle Beach area. (Rosier Decl. ¶ 13).

         According to plaintiff, around 5:45 p.m. on the afternoon of September 4, 2014, defendant Rosier in a purple unmarked car followed plaintiff's car from the City of Whiteville towards Highway #9 in Loris, South Carolina, near North Myrtle Beach, when defendant Rosier turned on blue lights and pulled plaintiff over for an unlawful traffic stop. (Id. ¶¶ 3, 12). Plaintiff asserts at the time of the alleged incident plaintiff was violating no South Carolina laws, and there were two people in the car with him and two people following the car, including Connie Robinson, who witnessed the incident. (Id. ¶¶ 4-6). The stop allegedly lasted about 6 minutes. (Robinson Decl. ¶ 4).

         Defendant asserts, by contrast, that he was present and working at the Whiteville Police Department on the afternoon of September 4, 2014 until he left to attend a rotary club meeting in Whiteville in the late afternoon or early evening, [2] and he has not performed any traffic stop of any vehicle at any time during his service as Administrative Chief and Chief of Police for Whiteville, North Carolina. (Rosier Decl. ¶¶ 12, 17-19).

         Following the alleged stop, plaintiff asserts that he went to the police department in Whiteville and confirmed the car that stopped him belonged to defendant and filed a complaint against defendant at the Whiteville police department. (Norton Decl. ¶¶ 14-16). The North Carolina Department of Justice, Training and Standards Division notified defendant of the complaint filed by plaintiff. (Rosier Amen. Decl. ¶ 2; DE 61-2). Defendant was contacted by Training and Standards Investigator Judy Kelly and requested to provide information to the division regarding his whereabouts on the date and time period of the alleged traffic stop, which defendant did, including letters from two witnesses, Sally Mann and Jonathan Medford, ...


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