United States District Court, E.D. North Carolina, Southern Division
W. FLANAGAN United States District Judge.
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.
OF THE CASE
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.).
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).
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unpublished per curiam opinion, affirming the court's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).
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).
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).
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).
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.
OF THE FACTS
as otherwise noted below, the undisputed facts are as
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).
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. ¶
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,
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).
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,