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Gregory v. Bruce

United States District Court, M.D. North Carolina

March 9, 2018

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.



         This 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.


         The 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[1]; Decl. of Lisa A. Gregory ¶¶ 6, 7 [Docs. #70 (Dec. 8, 2017), #74 (Dec. 16, 2017)[2].) 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].)

         That 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.)

         Having 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].)

         Long 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.)

         Shue 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.)

         Bruce 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].)

         On 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) [Doc. #80].)


         “Summary 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)[3]). 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.


         Shue 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].)

         Gregory 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.

         Even if 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 ...

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