United States District Court, E.D. North Carolina, Northern Division
SUSAN W. VAUGHAN, an individual Plaintiff,
SHANNON FOLTZ an individual, SAMANTHA HURD an individual, KRISTEN HARRIS an individual, KATHLYN ROMM an individual, DOUG DOUGHTIE an individual, RAY MATUSKO an individual, STEPHANIE RYDER an individual, CHUCK LYCETT an individual, MELANIE CORPREW an individual, HON. ROBERT TRIVETTE a individual, JAY BURRIS an individual, HON. AMBER DAVIS an individual, OFFICER DOE an individual, HON. EULA REID an individual, DARE COUNTY, CURRITUCK COUNTY, KILL DEVIL HILLS, DOES 1-10 individuals, MELISSA TURNAGE an individual, and KATHERINE MCCARRON, an individual. Defendants.
W. Flanagan United States District Judge
matter comes before the court on frivolity review of
plaintiff's pro se complaint, pursuant to 28 U.S.C.
§ 1915(e)(2)(B). Pursuant to 28 U.S.C. §
636(b)(1)(B) and Federal Rule of Civil Procedure 72(b),
United States Magistrate Judge Kimberly A. Swank entered a
memorandum and recommendation (“M&R”) and
supplemental memorandum and recommendation
(“supplemental M&R”), wherein it is
recommended that the court dismiss in part plaintiff's
claims and allow certain claims to proceed. (DE 5; DE 10).
Plaintiff timely filed objections to the M&R and
supplemental M&R. (DE 6; DE 11). Thereafter, plaintiff
filed an amended complaint, seeking to add as plaintiff her
daughter, Jennifer Vaughan. (See Am. Compl. (DE
13)). In this posture, the issues raised are ripe for ruling.
The court adopts some of the recommendations of the
magistrate judge, albeit in part on different grounds, and
undertakes herein its own frivolity review of the amended
complaint, pursuant to 28 U.S.C. § 1915(e)(2)(B),
dismissing in part plaintiff's claims and allowing
certain claims to proceed.
initiated this action by filing motion for leave to proceed
in forma pauperis (“IFP”) on August 15, 2016,
accompanied by proposed complaint. All claims arise from
defendants' alleged involvement in removal of both
plaintiff's adult daughter, Jennifer Vaughan, and
plaintiff's granddaughter and the daughter of Jennifer
Vaughan, a minor child referred to as “EJV, ”
from plaintiff's home. Plaintiff asserts claims against
defendants for constitutional violations pursuant to 42
U.S.C. § 1983 as well as conspiracy to violate those
rights. Plaintiff seeks damages, attorneys fees, trial by
jury, and injunctive relief.
August 2013, plaintiff and her daughter, together with EJV,
were residing at plaintiff's home in Kill Devil Hills,
North Carolina. In August 2013, the Dare County Department
of Social Services (“DSS”) filed a petition
alleging that EJV was neglected, thereby initiating a child
welfare case involving Jennifer Vaughan and EJV. On August
13, 2013, Dare County DSS, accompanied by officers from Kill
Devil Hills Police Department, removed Jennifer Vaughan from
plaintiff's home pursuant to what plaintiff suggests was
an involuntary civil commitment order. (Am. Compl. (DE 13) at
29). The next day, Dare County DSS removed EJV from
plaintiff's physical custody and placed the child into
temporary foster care based on allegations that EJV was
neglected. Child welfare proceedings in North Carolina
district court ensued. It also appears that adult protective
services division of Dare County DSS obtained guardianship
over Jennifer Vaughan on or about this time. (Id. at
39). Plaintiff attended both sets of proceedings.
is dissatisfied with the state courts' decisions not to
return EJV to Jennifer Vaughan's custody or
plaintiff's home. Plaintiff is also dissatisfied with the
manner in which Jennifer Vaughan, sought to be added as
plaintiff, and EJV physically were removed from her home and
with the legal process that culminated in legal custody of
EJV being awarded to Currituck County DSS, EJV being adopted
by persons unknown, guardianship over Jennifer Vaughan being
awarded to Dare County DSS, and Jennifer Vaughan being
involuntarily committed multiple times.
8, 2017, the magistrate judge granted plaintiff's IFP
petition and issued a M&R, recommending that claims
against certain defendants alleging violations of
plaintiff's Fourth Amendment rights should proceed and
that plaintiff's remaining claims should be dismissed
without prejudice. Plaintiff filed objections to the M&R
on May 23, 2017, challenging the magistrate judge's
determinations concerning the dismissal recommendations. On
May 24, 2017, this court noted in a text order that plaintiff
had filed a 50 page objection, on the heels of a 92 page
complaint, seeking in part to clarify her operative pleading.
The court recommitted the matter to the magistrate judge
pursuant to Federal Rule of Civil Procedure 72(b)(3) to
review plaintiff's objections and address the same in
supplement to the M&R.
22, 2017, the magistrate judge issued a supplemental M&R,
recommending plaintiff's following claims proceed:
1) § 1983 and § 1985 conspiracy claims against DSS
defendants Burrus, Corprew, Foltz, Lycett, and Ryder and
defendants officer Does of the Kill Devil Hills police
department alleging violations of plaintiff's Fourth
Amendment rights and
2) § 1983 procedural due process claims against DSS
defendants Burrus, Corprew, Foltz, Harris, Hurd, Lycett,
Romm, and Ryder and defendant Matusko, clerk of superior
court for Dare County, alleging injury to reputation
regarding plaintiff's placement on the list of
“responsible individuals” pursuant to N.C. Gen.
Stat. § 7B-311.
magistrate judge recommended the following claims be
dismissed without prejudice:
1) §1983 substantive and procedural due process claims
and related § 1985 conspiracy claims against all DSS
defendants arising under the Fourteenth Amendment as it
pertains to child welfare proceedings of EJV and civil
commitment proceedings as it pertains to plaintiff's
daughter, Jennifer Vaughan;
2) claims against defendants Reid, Trivette, and Davis,
including a First Amendment claim against Reid;
3) claims against Doughtie, for “obstruction of
4) claims against Currituck County, Dare County, and Kill
Devil Hills; and
5) § 1983 procedural due process claims alleging injury
to reputation regarding a judicial finding that plaintiff, as
caretaker of her grandchild, was responsible for neglect.
10, 2017, plaintiff filed objections to the supplemental
M&R, again challenging the magistrate judge's
determinations concerning the dismissal recommendations.
Amended complaint then was filed on August 25, 2017, seeking
in part to add as plaintiff Jennifer Vaughan.
Standard of Review
district court reviews de novo those portions of a magistrate
judge's M&R to which specific objections are filed.
28 U.S.C. § 636(b). The court does not perform a de novo
review where a party makes only “general and conclusory
objections that do not direct the court to a specific error
in the magistrate's proposed findings and
recommendations.” Orpiano v. Johnson, 687 F.2d
44, 47 (4th Cir. 1982). Absent a specific and timely filed
objection, the court reviews only for “clear error,
” and need not give any explanation for adopting the
M&R. Diamond v. Colonial Life & Accident Ins.
Co., 416 F.3d 310, 315 (4th Cir. 2005); Camby v.
Davis, 718 F.2d 198, 200 (4th Cir.1983). Upon careful
review of the record, “the court may accept, reject, or
modify, in whole or in part, the findings or recommendations
made by the magistrate judge.” 28 U.S.C. §
636(b)(1). Under 28 U.S.C. § 1915(e)(2), the court may
dismiss an action that is frivolous or malicious, fails to
state a claim on which relief may be granted, or seeks
monetary relief against a defendant who is immune from such
complaint may be found frivolous if it “lacks an
arguable basis either in law or in fact.” Neitzke
v. Williams, 490 U.S. 319, 325 (1989). Additionally, a
complaint fails to state a claim if it does not
“contain sufficient factual matter, accepted as true,
to state a claim to relief that is plausible on its face,
” sufficient to “allow[ ] the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quotations omitted). In evaluating
whether a claim has been stated, “[the] court accepts
all well-pled facts as true and construes those facts in the
light most favorable to the plaintiff, ” but does not
consider “legal conclusions, elements of a cause of
action, . . . bare assertions devoid of further factual
enhancement [, ] . . . unwarranted inferences, unreasonable
conclusions, or arguments.” Nemet Chevrolet, Ltd.
v. Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th
Cir. 2009) (citations omitted).
court will first address Jennifer Vaughan's competency to
be joined as plaintiff. The court will then address immunity
concerns and thereafter address the merits of plaintiff's
due process, Fourth Amendment, and injury to reputation
claims. The court then will address plaintiff's claims
against defendants Doughtie, Currituck County, Dare County,
and Kill Devil Hills. Finally, the court will address
plaintiff's request for preliminary injunction.
Competency of Jennifer Vaughan
outset, the court must address plaintiff's request to add
her daughter Jennifer Vaughan as plaintiff. Plaintiff alleges
that defendants Turnage and McCarron are Jennifer
Vaughan's appointed guardians. Jennifer Vaughan