United States District Court, E.D. North Carolina, Southern Division
W. FLANAGA, UNITED STATES DISTRICT JUDGE.
matter is before the court on plaintiff's motion for
summary judgment (DE 62), defendants' motion for summary
judgment (DE 66), plaintiff's motion to strike (DE 76),
defendants' motion to seal (DE 71) and a motion to
withdraw (DE 84). The issues raised have been fully briefed
and are ripe for adjudication. For the following reasons,
this court denies plaintiff's motions, grants
defendants' motion for summary judgment, grants the
motion to withdraw, and grants in part and denies in part
defendants' motion to seal.
OF THE CASE
March 30, 2016, plaintiff filed this civil rights action,
pro se, against defendants, employees of the State
Bureau of Investigation (“SBI”), and
previously-dismissed former defendants. (D E 1) . As is
currently relevant before this court, in his unverified
complaint, plaintiff alleges defendants participated in an
investigation of plaintiff and lied to a magistrate judge,
prosecutor, and grand jury in order to obtain an arrest
warrant and indictment against plaintiff in violation of the
Fourth Amendment to the United States Constitution.
multiple motions to dismiss from defendants and former
defendants, (DE 8, DE 16, DE 32, and DE 37), the court
determined on October 6, 2016, that plaintiff's only
remaining claims against defendants were against defendants
solely in their individual capacity and were for unreasonable
or unlawful seizure or malicious prosecution under the Fourth
Amendment. (DE 51 at 12, 14, and 15). Additionally, the court
“expressly reserve[d] its ruling on whether
[defendants] Tabron and Regner are entitled to qualified
immunity.” (Id. at 13).
court details here a somewhat involved procedural history as
it relates to the motions now pending. On June 22, 2017,
plaintiff filed the instant motion for summary judgment. (DE
62). In support of his motion, plaintiff relies upon
declaration of Lakeita Gause (DE 62-1); declaration of Calvin
Tyrone Norton (DE 62-2); declaration of Fredrick Foster
Chancey (DE 62-3); declaration of Tamekia Bellamy (DE 62-4);
Tamekia Bellamy notary license (DE 62-5); Emily Will document
examiner report (DE 62-6); transcript of recording of Carlos
Sutton (DE 62-7); investigation report (DE 62-8); certificate
of probate (DE 62-9); last will and testament of Carlos Dean
Sutton (DE 62-10); Durward Matheny document examiner report
(DE 62-11); defendant Regner's response to
plaintiff's interrogatories, request for admission, and
production of documents (DE 62-12); David Sutton power of
attorney (DE 62-13); David Sutton heath care power of
attorney (DE 62-14); David Sutton general power of attorney
(DE 62-15); David Sutton health care power of attorney (DE
62-16); Hugh Daniel interview report (DE 62-17); defendant
Tabron's responses to plaintiff's interrogatories,
requests for admissions, and production of documents (DE
62-18); and transcripts of conversations with Ted Dixon (DE
62-19, DE 62-20, and DE 62-21). On July 13, 2017, defendants
filed a response in opposition to plaintiff's motion for
summary judgment. (DE 77). On July 31, 2017, plaintiff filed
a reply to defendants' response. (DE 82).
30, 2017, defendants filed their instant motion for summary
judgment (DE 66). In support of the motion, defendants rely
upon affidavit of Wilton McBryde “Mac” Warner,
III (DE 70-1); defendants' affidavits (DE 70-2 and 70-4);
affidavit of Karen F. “Kaitlyn” Richards Toole
(DE 70-3), plaintiff's discovery responses (DE 70-5);
excerpts of interview reports from the SBI file (DE70-6, DE
70-7, DE 70-8, DE 70-10, DE 70-11, and DE 70-12), and
affidavit of Durward Matheny (DE 70-9).
additionally filed a statement of material undisputed
material facts pursuant to local rule 56.1. (DE 68). In
support of this motion, defendants filed in replica select
documents that defendants had filed in support of
defendants' motion for summary judgment. (See DE
69). Defendants additionally filed the instant motion to seal
documents, (DE 71), on June 30, 2017, which plaintiff opposed
in a brief entitled “motion to deny plaintiff's
motion to seal, ” (DE 74), on July 13, 2017.
13, 2017, plaintiff filed a response in opposition to
defendants' motion for summary judgment. (DE 75).
Plaintiff filed the instant motion to strike defendants'
motion for summary judgment on July 13, 2017, (DE 76), which
defendants opposed in responsive filing made July 25, 2017,
(DE 80). Finally, plaintiff filed a reply to defendants'
opposition to plaintiff's motion to strike on August 3,
2017. (DE 83). And in the meantime, on July 28, 2017, this
matter, the subject of a prior lawsuit voluntarily dismissed
March 28, 2016, by plaintiff, contained in court file no.
7:16-CV-21,  was reassigned to the undersigned district
OF THE FACTS
as otherwise noted below, the undisputed facts are as
follows. Jon David, district attorney, contacted the North
Carolina State Bureau of Investigation (“SBI”) on
October 17, 2014, requesting assistance in investigating
allegations made against plaintiff: “I am requesting an
investigation of Calvin Norton. My office has been contacted
by the Whiteville Police Department concerning allegations of
forgery of signatures of recently deceased or clearly
incapacitated persons. Evidently, at least two people have
executed power of attorney of their entire estate to Calvin
Norton.” (DE 1-1; DE 69-1; DE 70-1). The email goes on
to state that the documents at issue belong to two brothers,
David Sutton and Carlos Sutton. (Id.) A third
brother, Dennis Sutton, was the person who filed the above
report with the Whiteville police department containing the
allegations against plaintiff. (DE 63-8; DE 77 at 4).
were assigned to the investigation and interviewed 18 people,
including relatives of Carlos and David Sutton, their medical
care providers, and a forensic document examination expert.
(DE 68 ¶ 3-4; DE 69-1; DE 69-2; DE 70-1; DE 70-2).
Dennis Sutton told defendants that four months prior to
Carlos Sutton's death, plaintiff's trailer had been
repossessed and plaintiff had moved in with Carlos and David
Sutton. (DE 70-6). Dennis Sutton further informed
defendants that plaintiff had not allowed Carlos to speak
with anyone outside of plaintiff's presence and that
Dennis did not believe that Carlos signed the will at issue
that named plaintiff as executor and left Carlos' entire
estate to plaintiff, including David's social security
checks. (Id.). Medical providers interviewed by
defendants indicated that both David Sutton, due to autism,
and Carlos Sutton, in the days immediately proceeding his
death, were not mentally capable of understanding the legal
effect of power of attorney documents or a last will and
testament that they signed on November 11, 2013, making
plaintiff beneficiary of Carlos Sutton's estate and
making plaintiff David Sutton's power of attorney. (DE
63-10; DE 63-15; DE 63-17; DE 68 ¶ 5-6; DE 69-3; DE
70-10; DE 70-11). D u r w a r d Matheny, a retired forensic
document examiner, was hired by one of Carlos and David
Sutton's relatives and prepared two reports after
reviewing the documents at issue, and opined that the
signatures found on Carlos Sutton's last will and
testament and David Sutton's power of attorneys were not
those belonging to Carlos and David Sutton, respectively. (DE
63-11; DE 68 ¶ 8-11; DE 69-6; DE 70-9).
April 20, 2015, defendants obtained 6 felony arrest warrants
for plaintiff from a magistrate in Columbus County for
charges of uttering a forged instrument, forgery of an
instrument, obtaining property by false pretenses, and
exploitation of a disabled adult. (DE 1-4; DE 68 ¶ 15;
DE 69-7; DE 70-3). Plaintiff was indicted by a grand jury.
(DE 1 ¶¶ 42-43; DE 1-5; DE 68 ¶ 20).
Subsequently, all charges against plaintiff were dismissed.
(DE 1 ¶¶ 78-79; DE 68 ¶ 21).
Standard of Review
judgment is appropriate where “the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). The party seeking summary judgment
“bears the initial responsibility of informing the
district court of the basis for its motion, and identifying
those portions of [the record] which it believes demonstrate
the absence of a genuine issue of material fact.”
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
the moving party has met its burden, the non-moving party
must then “come forward with specific facts showing
that there is a genuine issue for trial.”
Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 586-87 (1986) (internal quotation
omitted). Only disputes between the parties over facts that
might affect the outcome of the case properly preclude the
entry of summary judgment. See Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247-48 (1986) (holding that a
factual dispute is “material” only if it might
affect the outcome of the suit and “genuine” only
if there is sufficient evidence for a reasonable jury to
return a verdict for the non-moving party).
the summary judgment stage the [court's] function is not
[itself] to weigh the evidence and determine the truth of the
matter but to determine whether there is a genuine issue for
trial.” Id. at 249. In determining whether
there is a genuine issue for trial, “evidence of the
non-movant is to be believed, and all justifiable inferences
are to be drawn in [non-movant's] favor.”
Id. at 255; see United States v. Diebold,
Inc., 369 U.S. 654, 655 (1962) (“On summary
judgment the inferences to be drawn from the underlying ...