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Norton v. Tabron

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

October 11, 2017

KEVIN TABRON, in his personal capacity and his official capacity as S.B.I. Special Agent for the Coastal District of North Carolina, and BRENNAN REGNER, in his personal capacity and his official capacity as S.B.I. Special Agent for the Coastal District of North Carolina, Defendants. [1]



         This 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.


         On 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.[2] (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. (Id.).

         Following 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).

         The 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).

         On June 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).

         Defendants 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.

         On July 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, [3] was reassigned to the undersigned district judge.


         Except 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).

         Defendants 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.[4] (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.).[5] 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).[6] 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).

         On 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).


         A. Standard of Review

         Summary 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).

         Once 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).

         “[A]t 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 ...

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