United States District Court, E.D. North Carolina, Northern Division
MEMORANDUM AND RECOMMENDATION
E. Gates, United States Magistrate Judge
case comes before the court on the motion for partial summary
judgment, pursuant to Fed.R.Civ.P. 56, by defendants, Eric V.
Tilley ("Sheriff Tilley"), Preston Ward
("Ward"), and James Fowden ("Fowden")
(collectively "defendants") (D.E. 28). Plaintiff
Brian Timothy Smith ("plaintiff) opposes the motion. The
motion has been briefed and is ripe for adjudication. The
motion was referred to the undersigned magistrate judge for a
memorandum and recommendation pursuant to 28 U.S.C. §
636(b)(1)(B). See 9 Apr. 2018 Public D.E. For the
reasons set forth below, it will be recommended that the
motion be allowed.
case, brought pursuant to 42 U.S.C. § 1983, arises out
of plaintiff s 16 April 2014 arrest.
on 30 August 2010, a representative from East Coast
Equipment, LLC, ("East Coast Equipment") reported
to the Perquimans County (North Carolina) Sheriffs Office
that a John Deere X530 riding lawnmower still in its shipping
crate, valued at $6, 4000.00 and with the serial number
MOX53A053964, was missing from its inventory. Defs.' L.
R. 56.1(a)(1) Stmt. (of Undisputed Facts) (D.E. 29) ¶ 1;
Pl's Resp. to Defs.' L. R. 56.1(a)(1) Stmt. (of
Undisputed Facts) (D.E. 33) ¶ 1.
mid-April of 2014, the Perquimans County Sheriffs Office
received information from the Pasquotank County Sheriffs
Office that two stolen jet ski trailers were located on
plaintiffs property. Defs.' L.R. 56.1 Stmt. ¶ 2;
Pl's Resp. to Defs.' L.R. 56.1 Stmt. ¶ 2.
Sheriff Tilley, the Sheriff of Perquimans County, accompanied
officers to recover the jet ski trailers from plaintiffs
property. Defs.' L.R. 56.1 Stmt. ¶ 2; Pl's Resp.
to Defs.' L.R. 56.1 Stmt. ¶ 2.
Sheriff Tilley was informed by a Pasquotank County Sheriffs
Investigator that a Pasquotank County Deputy, who happened to
be plaintiffs stepson, Chris Terry, provided information that
plaintiff might be in possession of a stolen John Deere
lawnmower. Defs.' L.R. 56.1 Stmt. ¶ 3; Pl's
Resp. to Defs.' L.R. 56.1 Stmt. ¶ 3. Deputy Terry
reported that a few years earlier while living with plaintiff
he recalled waking up one morning and seeing a John Deere
riding lawnmower, still in its shipping crate, in plaintiffs
yard which had not been there the night before. Defs.'
L.R. 56.1 Stmt. ¶ 3; Pl's Resp. to Defs.' L.R.
56.1 Stmt. ¶ 3.
Tilley relayed this information to Ward, a Perquimans County
Sheriffs Investigator, and instructed Ward to go to
plaintiffs property to speak to him about the lawnmower.
Defs.' L.R. 56.1 Stmt. ¶ 4; Pl's Resp. to
Defs.' L.R. 56.1 Stmt. ¶ 4. On 16 April 2014, Ward
and Fowden, a Perquimans County Sheriffs Deputy, went to
plaintiffs home, but nobody was there. Defs.' L.R. 56.1
Stmt. ¶ 5; Pl's Resp. to Defs.' L.R. 56.1 Stmt.
¶ 5. Ward and Fowden saw a John Deere lawnmower on
plaintiffs property, took photos of it, and later contacted
East Coast Equipment for information about the lawnmower.
Defs.' L.R. 56.1 Stmt. ¶ 5; Pl's Resp. to
Defs.' L.R. 56.1 Stmt. ¶ 5; Am. Compl. ¶ 10.
Ward confirmed that the lawnmower on the plaintiffs property
was the same one reported stolen by East Coast Equipment.
Defs.' L.R. 56.1 Stmt. ¶ 6; Pl's Resp. to
Defs.' L.R. 56.1 Stmt. If 6. Later that same day, Sheriff
Tilley and Ward returned to plaintiffs property and seized
the lawnmower without a warrant or with consent from
plaintiff. Defs.' L.R. 56.1 Stmt. ¶ 7; Pl's
Resp. to Defs.' L.R. 56.1 Stmt. ¶ 7; Aff. of Brian
Timothy Smith (D.E. 32-1) ¶ 6; Am. Compl. ¶¶
the seizure of the lawnmower, Ward requested that plaintiff
come to the Perquimans County Sheriffs Office in order for
Ward and another deputy, Deputy Guy Cayton, to question him
about his possession of the lawnmower. Defs.' L.R. 56.1
Stmt. ¶ 8; Pl's Resp. to Defs.' L.R. 56.1 Stmt.
f 8; Smith Aff. ¶ 7; Am. Compl. If 13. It is disputed by
the parties whether plaintiff confessed to or denied having
stolen the lawnmower during this questioning, but for
purposes of this motion, it is presumed that plaintiff did
not confess. Defs.' L.R. 56.1 Stmt. ¶ 8 n. 1; Smith
Aff. ¶ 7. Immediately following this questioning, Ward
appeared before a magistrate to apply for a warrant for
plaintiffs arrest and the magistrate issued a warrant for the
felony offenses of larceny, in violation of N.C. Gen. Stat.
§ 14-72(a), and possession of the lawnmower, in
violation of N.C. Gen. Stat. § 14-71.1. Defs.' L.R.
56.1 Stmt. ¶ 9; Pl's Resp. to Defs.' L.R. 56.1
Stmt. ¶ 9 (disputing portions of this paragraph but not
the fact that a warrant was applied for and issued); Arrest
Warrant (comprising p. 2 of D.E. 30-6). Plaintiff was placed
under arrest by Deputy Cayton. Defs.' L.R. 56.1 Stmt.
¶ 10; Pl's Resp. to Defs.' L.R. 56.1 Stmt.
¶ 10. A grand jury later indicted plaintiff on the same
charges on 14 July 2014. Defs.' L.R. 56.1 Stmt. ¶
11; Pl's Resp. to Defs.' L.R. 56.1 Stmt. If 11; Am.
Compl. If 18.
July 2015, the Superior Court of Perquimans County allowed
plaintiffs motion to suppress information pertaining to the
search of his property and seizure of the lawnmower occurring
on 16 April 2014. Defs.' L.R. 56.1 Stmt. ¶ 13;
Pl's Resp. to Defs.' L.R. 56.1 Stmt. ¶ 13; Am.
Compl. ¶ 20. The charges against plaintiff were later
dismissed. Defs.' L.R. 56.1 Stmt. ¶ 14; Pl's
Resp. to Defs.' L.R. 56.1 Stmt. ¶ 14; Am. Compl.
amended complaint, plaintiff asserted seven claims, but
voluntarily dismissed two claims (D.E. 20), leaving five
claims for: (1) unlawful search in violation of the Fourth
Amendment against Sheriff Tilley, Ward, and Fowden in their
individual capacity (first claim) (¶¶ 22-28); (2)
unlawful arrest in violation of the Fourth Amendment (second
claim) (¶¶ 29-37) against Sheriff Tilley, Ward, and
Fowden individually; (3) punitive damages against Ward and
Sheriff Tilley in their individual capacities (fourth claim)
(¶¶ 47-51); (4) unlawful search in violation of the
Fourth Amendment against Sheriff Tilley in his official
capacity (fifth claim) (¶¶ 52-57); and (5) unlawful
arrest in violation of the Fourth Amendment (sixth claim)
(¶¶ 58-65) against Sheriff Tilley in his official
instant motion seeks summary judgment on plaintiffs second
and sixth claims, both of which, as indicated, are for false
arrest in violation of the Fourth Amendment.
STANDARD FOR SUMMARY JUDGMENT
motion for summary judgment pursuant to Rule 56 of the
Federal Rules of Civil Procedure should be granted "if
the movant shows that 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); Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986). In analyzing
whether there is a genuine issue of material fact, all facts
and inferences drawn from the facts must be viewed in the
light most favorable to the nonmoving party. Design
Resources, Inc. v. Leather Industries of America, 789
F.3d 495, 500 (4th Cir. 2015); Evans v. Techs.
Applications & Serv. Co., 80 F.3d 954, 958 (4th Cir.
burden is on the moving party to establish the absence of
genuine issues of material fact. Celotex, 477 U.S.
at 323. If the movant meets its burden, then the nonmoving
party must provide the court with specific facts
demonstrating a genuine issue for trial in order to survive
summary judgment. Id. at 323. The nonmoving party is
not permitted to rest on conclusory allegations or denials,
and a "mere scintilla of evidence" is not
sufficient to defeat a summary judgment motion. Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).
directs that a "party asserting that a fact cannot be or
is genuinely disputed must support the assertion by: (A)
citing to particular parts of materials in the record,
including depositions, documents, electronically stored
information, affidavits or declarations, stipulations
(including those made for purposes of the motion only),
admissions, interrogatory answers, or other materials; or (B)
showing that the materials cited do not establish the absence
or presence of a genuine dispute, or that an adverse party
cannot produce admissible evidence to support the fact."
Fed.R.Civ.P. 56(c)(1)(A), (B). "The summary judgment
inquiry thus scrutinizes the plaintiffs case to determine
whether the plaintiff has proffered sufficient proof, in the
form of admissible evidence, that could carry the burden of
proof of his claim at trial." Mitchell v. Data Gen.
Corp., 12 F.3d 1310, 1315-16 (4th Cir. 1993).