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Vaughan v. Foltz

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

October 27, 2017

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.[1]


          Louise W. Flanagan United States District Judge

         This 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.


         Plaintiff 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.[2] 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.

         In August 2013, plaintiff and her daughter, together with EJV, were residing at plaintiff's home in Kill Devil Hills, North Carolina.[3] 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.

         Plaintiff 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.[4]

         On May 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.

         On June 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.

         The magistrate judge recommended the following claims be dismissed without prejudice:[5]

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 justice”;
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.

         On July 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.[6]


         A. Standard of Review

         The 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 relief.

         A 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., Inc., 591 F.3d 250, 255 (4th Cir. 2009) (citations omitted).

         B. Analysis

         The 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.

         1. Competency of Jennifer Vaughan

         At the 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 ...

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