United States District Court, M.D. North Carolina
MEMORANDUM OPINION AND ORDER
CARLTON TILLEY, JR. SENIOR UNITED STATES DISTRICT JUDGE
se Plaintiff George Reynolds Evans originally filed this
§ 1983 action in the Eastern District of North Carolina,
alleging that his civil rights were violated when he was
unlawfully searched and arrested in Greensboro, North
Carolina. That Court dismissed in part Evans' claims as
frivolous, but allowed his claims against Officer J.K.
Griffin in his individual capacity and those against the City
of Greensboro (“the City”) to go forward. (Order
(Aug. 11, 2014) [Doc. #19].) Thereafter, the action was
transferred to this district. (Order (Dec. 30, 2014) [Doc.
February 6, 2017, this Court entered an Order on a Second
Motion to Dismiss [Doc. #66] filed by Griffin and the City
(collectively “Defendants”). [Doc. #74.] The
Court determined that, “[b]ased on [his] allegations
and the information presented, Plaintiff has not alleged
facts to show that Defendant Griffin lacked probable
cause” to arrest him. (Order at 6.) However, because
the Court considered various items that Evans had submitted,
including the police report of the incident in question
(see [Doc. #44-3]), it was determined prudent to
give the parties notice of the Court's intent to treat
the motion as one for summary judgment and additional time to
conduct discovery and submit supplemental briefing and any
additional evidence. (Order at 7.) Consideration of the
Motion to Dismiss was stayed until supplemental motions had
been fully briefed and the matter referred for further
consideration by the Court. (Id. at 7-8.)
the entry of that Order, Evans and Defendants have filed
additional briefing and materials with the Court, including
Defendants' Supplemental Summary Judgment Motion [Doc.
#81], and the matter has been referred for further
early November 2011, Griffin, a police officer with the City
of Greensboro Police Department, began surveilling an antique
store, Rhyne's Corner Cupboard, located at 603 S. Elm
Street, Greensboro, North Carolina. (Decl. of J.K. Griffin
¶¶ 1, 2, 4 (June 7, 2017) [Doc. #81-1].) He was
prompted to do so after learning from his sergeant, C.T.
Blaylock, that the owner of Rhyne's Corner Cupboard, Dick
Rhyne, reported that he had received a suspicious phone call
at the store during which the caller stated that he had
thirty of some kind of medication to sell. (Id.
¶¶ 2, 3.) This led Rhyne to believe store employees
were involved in buying prescription medications.
(Id. ¶ 3.)
conducted surveillance for five days over a two week period
for three to five hours at a time. (Id. ¶ 4.)
He noticed people who appeared to be between the ages of
fifty and sixty arrive at the store with handicapped
placards, park their vehicles, and enter the store without
hesitation. (Id.) Once inside, they did not look
around the store as if to shop, but seemed familiar with the
store and acted as though they had specific business there.
(Id.) They left the store a few minutes later.
(Id.) These activities were consistent with those
that Griffin had seen at other locations where illegal
narcotics transactions have taken place. (Id.)
November 22, 2011, Griffin learned from Blaylock that Rhyne
had reported a second phone call. (Id. ¶ 5.)
The caller told Rhyne that he “had 30 to bring”
to the store and described himself as a black male who would
be wearing black pants, a blue coat, and a blue toboggan or
knitted cap. (Id. ¶ 6.) Griffin believed the
“30 to bring” was a reference to selling thirty
pills of some kind of medication at the store. (Id.
¶ 7.) Rhyne then contacted Griffin directly and told him
that a man who matched the caller's self-description was
present outside the store. (Id. ¶ 8.) Griffin
arrived at the store and saw a black male standing outside
it. (Id. ¶ 9.) According to Griffin, the black
male was wearing the clothes the caller had described: black
pants, a blue coat, and a blue toboggan or knitted cap.
(Id.) Griffin avers that because the black male
matched the description that the caller gave of himself, he
believed the black male to be the caller. (Id.) The
black male outside the store was Evans.
to Evans, he was across the street from the entrance of
Rhyne's Corner Cupboard at this time. (Decl. of George R.
Evans ¶ 16 (Apr. 10, 2017)[Doc. #78-1].) He consistently
maintains that he was not wearing the clothing that Griffin
described. (Id. ¶ 5 (“I did not have on
the clothes Griffin described in his report of what the store
owner say.”), ¶ 16 (“I was not dress [sic]
the way Griffin stated[.]”); Decl. of George R. Evans
¶ 5 (June 20, 2017) [Doc. #86] (“I did not have on
the described clothing Griffin said in number 6 of
Officer K.M. Pope arrived on the scene, he and Griffin
approached Evans, and Griffin asked him what he was doing.
(Decl. of Griffin ¶¶ 10, 12.) Evans asked Griffin
what was going on, and Griffin explained he had received a
phone call that Evans was at the store attempting to sell
prescription medication. (Id. ¶ 12.) Griffin
asked Evans if he had anything illegal on him, and Evans said
no. (Id.) According to Griffin, he then asked Evans
whether he had any prescription medications with him, and
Evans said he had his own medication with him. (Id.)
Griffin then avers that he asked Evans if he could “pat
him down” and search his pockets to which Evans
responded that he did not want to be searched. (Id.
at ¶ 13.) Griffin contends that he then explained to
Evans that he was searching Evans with probable cause, after
which Evans said that he had four prescription bottles, three
in his pants pocket and one in his inner left coat pocket.
Griffin found the prescription bottles, one of which had been
filled that day with thirty hydrocodone pills, and two cell
phones, one of which showed the last number dialed to be
Rhyne's. (Id. ¶¶ 14-16.) According to
Griffin, he then arrested Evans. (Id. ¶ 18.) He
later charged Evans with possession with intent to
sell/distribute a Schedule III controlled substance.
(Id. ¶ 24.)
presents a different version of events. According to Evans,
Griffin asked him if he had any illegal drugs or weapons to
which he responded, “no.” (Decl. of Evans ¶
11 [Doc. #86].) When Griffin then asked Evans if he could
search him, Evans again said no. (Id.) It is
difficult to discern the precise chronology of what happened
next according to Evans. After he denied Griffin's
request to search, he did allow Griffin to frisk him,
(id.; see also Decl. of George K. Evans
¶ 14 (Dec. 30, 2015) [Doc. #60]), but Griffin went
beyond a frisk and into his pockets for a full search, (Decl.
of Evans ¶ 11 [Doc. #86]; Decl. of George R. Evans
¶ 4 (May 31, 2016) [Doc. #72]), which either happened
before his arrest, after his arrest, or both, (see
Decl. of Evans ¶ 14 (“I only gave Officer
permission to frisk me for weapons for their safety and they
decided to handcuff me and search me.”) [Doc. #60];
Decl. of Evans ¶ 1 (“Defendant J.K. Griffin
immeadiately [sic] placed me under arrest and searched me and
took my medication” [Doc. #70-1]). Evans contends that