United States District Court, M.D. North Carolina
LISA A. GREGORY, Plaintiff,
MONTE BRUCE, MONTE BRUCE d/b/a THE PACKAGING STORE, PENSKE TRUCK LEASING CO., LP, and MARK W. SHUE, Individual and in His Official Capacity as a Police Officer of the Salisbury Police Department, and CITY OF SALISBURY, Defendants.
MEMORANDUM OPINION AND ORDER
CARLTON TILLEY, JR. SENIOR UNITED STATES DISTRICT JUDGE
matter is before the Court on a Motion for Summary Judgment
by Defendants City of Salisbury (“the City”) and
Mark W. Shue [Doc. #56] and a Motion for Summary Judgment by
Defendants Monte Bruce and Monte Bruce d/b/a The Packaging
Store [Doc. #60]. For the reasons explained below, both
motions are granted.
following facts are undisputed. On June 5, 2008, pro
se Plaintiff Lisa A. Gregory signed an agreement with
Bruce, the owner of The Packaging Store in Salisbury, North
Carolina, to rent a Penske 26-foot SAD Medium Van for one
day. (Local Household Rental Agreement [Doc. #68-17]; Decl.
of Monte D. Bruce ¶¶ 3-6 (Oct. 12, 2017) [Doc.
#60-1]; Dep. of Lisa A. Gregory 39:5-25 (June 12, 2017) [Doc.
#60-2; Decl. of Lisa A. Gregory ¶¶ 6,
7 [Docs. #70 (Dec. 8, 2017), #74 (Dec. 16,
2017).) Gregory's husband requested a
one-day extension to June 7, which Bruce allowed, but that
day came and went without the truck's return. (Decl. of
Bruce ¶ 7; see Dep. of Gregory 70:7-11, 22-23,
77:9-13, 77:24-78:3, 78:14-23, 81:5-82:13 (admitting
possession of the truck as late as June 18, June 23, and the
early morning of June 24) [Doc. #60-2].) After having
unsuccessfully attempted to contact Gregory about the truck,
Bruce reported it stolen to the City's police department
on June 18. (Decl. of Bruce ¶¶ 9, 10; see
also Decl. of Gregory ¶ 9 [Doc. #74].)
day, Shue responded to The Packaging Store where he met Bruce
who explained that, on June 5, he had rented a 26-foot Penske
truck to Jay and Lisa Gregory, the latter of whom had signed
the rental receipt, for one day that was extended for another
day at Jay's request. (Decl. of Mark W. Shue ¶ 2
(Oct. 4, 2017) [Doc. #56-1].) Bruce described the truck as a
2007 International, model 4300 panel truck, valued at $50,
000. (Id.) After June 7 came and went, and Bruce had
not been able to reach Gregory, he concluded the truck had
been stolen and called the police. (Id. ¶ 3.)
no reason to doubt Bruce's credibility, Shue entered the
truck's license plate and VIN into the NCIC database as
stolen and completed an incident report. (Id. ¶
4; see Reporting Officer Narrative (stating the same
general information as in Shue's Declaration) [Doc.
#66-1].) That same day, Shue attempted to speak with and
locate Gregory to no avail. (Decl. of Shue ¶ 4.)
Meanwhile, Bruce was able to reach her at her work telephone
number and informed her that he had contacted the police and
that the truck needed to be returned. (Decl. of Bruce ¶
12; see also Dep. of Gregory 79:2-12 [Doc. #60-2].)
after June 7, the truck was returned to The Packaging Store.
(See Dep. of Gregory 70:7-11, 22-23, 77:9-13,
77:24-78:3, 78:14-23, 81:5-82:13 (admitting possession of the
truck as late as June 18, June 23, and the early morning of
June 24) [Doc. #60-2]; Decl. of Lisa A. Gregory ¶ 10
[Doc. #70], ¶ 11 [Doc. #74] (admitting returning the
truck “[o]n or after June 18”); Decl. of Bruce
¶ 13 (stating that “[o]n or about July 5, 2008,
the truck was found on my lot”); Local Household
Invoice #16622880 (noting return date and time as
“07/05/08” at “09:59 AM”) [Doc.
#68-17].) Bruce then called Shue to report the truck's
return. (See Decl. of Bruce ¶ 15 (explaining
that after finding the truck on his lot on or about July 5,
he “thereafter notified the Salisbury Police Dispatch
of the truck's return”).) After receiving notice
from Bruce that the truck was returned overnight, Shue
removed it from the NCIC database and issued a supplemental
case report noting that the truck had been returned.
(See Decl. of Shue ¶ 5; Case Suppl. Report
(July 11, 2008) (reflecting Bruce's report of the
truck's return, Shue's removal of the truck from the
NCIC database, and an Incident/Investigative Report updated
to show that the stolen truck had been recovered).) Sometime
after the truck was returned, Bruce called Gregory at work
and demanded that she pay $3, 000 or he was going to call the
police. (Dep. of Gregory 82:19-25 [Doc. #60-2].) There is no
evidence that he did. (See id. 122:13-123:4.)
conducted no further investigation, and the matter lay
dormant until February 2009 when one of Shue's
supervisors asked if he had ever presented the case to a
magistrate for possible criminal charges. (Decl. of Shue
¶ 6.) When Shue responded that he had not, he was
instructed to do so. (Id.) He pulled the police
reports and went before a magistrate at which time he
testified under oath about the initial call, what he learned
from Bruce, his own unsuccessful efforts to contact Gregory,
and the truck's return several weeks later.
(Id.) The magistrate issued arrest warrants for Lisa
and Jay Gregory for felony larceny in violation of N.C.
General Statute § 14-72(a). (Id.; Warrant for
Arrest (Feb. 5, 2009) [Doc. #2-1, Ex. 5].) Shue left the
warrants on his sergeant's desk, (Decl. of Shue ¶
6), after which Gregory was arrested on February 17, 2009,
and released on bond, (Decl. of Gregory ¶ 18 [Doc. #70],
¶ 13 [Doc. #74]). Shue did not participate in either of
the Gregorys' arrests. (Decl. of Shue ¶ 6.)
and Shue were then subpoenaed to appear before the grand
jury. (See M.W. Shue Subpoena (02/23/09) [Doc.
#70-2], (03/26/09) [Doc. #70-3], (06/22/09) [Doc. #70-4];
Monte Bruce Subpoena (02/23/09) and accompanying letter
(02/20/09) [Docs. #74-3, 74-4], (03/26/09) [Doc. #74-6],
(05/07/09) [Doc. #74-7]; Decl. of Bruce ¶ 17; Decl. of
Shue ¶ 7.) Bruce never appeared before a magistrate or
testified before the grand jury, (Decl. of Bruce ¶ 17),
but he did submit a Victim Impact Statement in March 2009
identifying the truck as having been stolen, but noting that
it was recovered, and that his company had suffered a loss of
$2, 995.09, plus his investigative time and research, as a
result, (id. ¶ 18; Victim Impact Statement
[Doc. #74-5]). In July 2009, Shue testified before the grand
jury to the exact same information he reported to the
magistrate, after which he heard nothing about the case until
the filing of the instant action. (Decl. of Shue ¶ 7.)
Gregory was indicted on July 6, 2009, for a violation of N.C.
General Statute § 14-72, a class H felony. (Indictment
(July 6, 2009) [Doc. #2-1, Ex. 14].) Over five years later,
on August 14, 2014, the charge against Gregory was dismissed.
(See Dismissal (Aug. 14, 2014) [Doc. #2-1, Ex. 20].)
November 12, 2015, Gregory instituted this action against
Bruce, Penske Truck Leasing Co., LP (“Penske”),
Shue, and the City. The Court granted Penske's motion to
dismiss all three claims against it and partially granted
Bruce's motion, dismissing two claims against him.
(See Order (Mar. 16, 2017) [Doc. #45] (adopting in
part Recommendation [Doc. #40]).) Shue, the City, and Bruce
have now filed motions for summary judgment on all remaining
claims - as against Shue and the City: unlawful arrest (Count
I), malicious prosecution (Count II), and violation of due
process rights and equal access to justice (Count IV) all in
violation of 42 U.S.C. § 1983, malicious prosecution in
violation of North Carolina law (Count III), and conspiracy
to interfere with civil rights in violation of 42 U.S.C.
§ 1985 (Count V), and as against Bruce: malicious
prosecution in violation of North Carolina law (Count III).
Throughout her responses to the motions for summary judgment,
Gregory refers to her then-pending Motions to Compel that she
filed after Defendants moved for summary judgment. (See
Pl.'s Resp. in Opp'n [Docs. #69, 73].) She believed
that, if her motion were granted, she would obtain
documentary and testimonial evidence to support her claims
and oppose the summary judgment motions. However, her Motion
to Compel was denied. (See Order (Jan. 22, 2018)
judgment is appropriate when, viewing the facts in the light
most favorable to the nonmoving party, ‘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).” Groves v. Commc'n Workers of Am.,
815 F.3d 177, 181 (4th Cir. 2016). The moving party bears the
initial burden of establishing “the basis for its
motion and identifying those portions of ‘the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,
' which it believes demonstrate the absence of a genuine
issue of material fact.” Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986) (citing Fed.R.Civ.P.
56(c)). The “mere existence of
some alleged factual dispute between the parties
will not defeat an otherwise properly supported motion for
summary judgment; the requirement is that there be no
genuine issue of material fact.”
Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 247-48 (1986). A dispute is genuine if a reasonable
jury, based on the evidence, could find in favor of the
non-moving party. Id. at 248. The materiality of a
fact depends on whether the existence of the fact could cause
a jury to reach different outcomes. Id.
and the City first argue that Count I is time-barred. (Mem.
of Law in Supp. of Mot. for Summ. J. at 6-7 [Doc. #59].) In
Count I, pursuant to 42 U.S.C. § 1983, Gregory alleges
that Shue and the City violated her Fourth and Fourteenth
Amendment rights “by fabricating false evidence to
manufacture probable cause, reckless conduct and with
malicious intent to harm and injure [her], seizing and
arresting [her] with no probable cause”. (Am. Compl.
¶ 46 [Doc. #2].)
essentially alleges that her arrest warrant was not supported
by probable cause, because Shue fabricated the evidence he
presented to the magistrate who issued the warrant. “At
common law, allegations that a warrantless arrest . . . was
not supported by probable cause advanced a claim of false
arrest . . .; [h]owever, allegations that an arrest made
pursuant to a warrant was not supported by probable cause . .
. are analogous to the common-law tort of malicious
prosecution.” Brooks v. City of Winston-Salem,
N.C. , 85 F.3d 178, 181-82 (4th Cir. 1996). Here,
Gregory was arrested pursuant to the warrant that the
magistrate issued based upon Shue's testimony, which
Gregory alleges was replete with fabricated evidence to
manufacture probable cause. These allegations align with
malicious prosecution, rather than false arrest, and are
addressed below, see infra § IV.
Gregory's allegations were properly considered
allegations of a false arrest, such a claim would be
time-barred. Courts look to state personal injury law to
determine the statute of limitations for a § 1983 claim.
Wallace v. Kato, 549 U.S. 384, 387 (2007). In North
Carolina, the applicable statute of limitations for personal
injury actions is three years. N.C. Gen. Stat. §
1-52(5). However, “the accrual date of a § 1983
cause of action is a question of federal law that is
not resolved by reference to state law.”
Wallace, 549 U.S. at 388. A § 1983 claim for
false arrest accrues when “the claimant becomes
detained pursuant to legal process.” Id. at
397. Here, the magistrate issued an arrest warrant for