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Evans v. City of Jacksonville

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

March 18, 2019

GEORGE R. EVANS, SR., Plaintiff,



         This matter is before the court on defendants' motion for summary judgment (DE 77), filed pursuant to Federal Rule of Civil Procedure 56. The motion was fully briefed and thus the issues raised are ripe for decision. For the reasons stated below, the motion is granted and plaintiff's claims are dismissed with prejudice.


         On April 18, 2016, plaintiff, a state inmate proceeding pro se, filed this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff primarily alleges defendants retaliated against him for filing civil lawsuits against members of the Jacksonville, N.C. police department (“Jacksonville police department”) in violation of the First Amendment to the United States Constitution, and that defendants Keller and Edes disclosed that he was working as a confidential information. Plaintiff seeks compensatory and punitive damages, and an injunction directing defendants to stop disclosing the names of confidential informants.

         On November 7, 2016, the court conducted its frivolity review of plaintiff's complaint and directed plaintiff to file amended complaint particularizing his claims. Plaintiff timely filed the amended complaint. On December 2, 2016, the court dismissed the action without prejudice because plaintiff had incurred three strikes under the Prison Litigation Reform Act (“PLRA”). See 28 U.S.C. § 1915(g).[1] Plaintiff thereafter filed motion to alter or amend judgment, requesting that the court vacate the judgment because he intended to pay the filing fee. On March 28, 2017, plaintiff paid the filing fee, and the court thereafter reinstated the action.

         On May 8, 2017, the court conducted its frivolity review of plaintiff's amended complaint and allowed the matter to proceed as to the named defendants. The court, however, dismissed plaintiff's claims against defendants Dorn and Edes because plaintiff did not name them as defendants in the amended complaint. On May 17, 2017, plaintiff filed motion to amend the complaint seeking to reinstate claims against defendants Dorn and Edes, which the court subsequently granted. Defendants filed answers to plaintiff's amended complaint in July and September 2017. On October 5, 2017, the court entered case management order governing discovery and dispositive motions practice. The parties completed discovery, including written discovery and plaintiff's deposition, on or about February 20, 2018.

         On April 16, 2018, defendants filed the instant motion for summary judgment, arguing they are entitled to judgment as a matter of law on each of plaintiff's claims. In support of the motion, defendants filed memorandum of law, statement of material facts, and affidavits of defendants Edes and Keller. Plaintiff filed response in opposition on June 1, 2018, which included memorandum of law, statement of undisputed material facts, plaintiff's declaration, excerpts from plaintiff's deposition, and defendants' responses to plaintiff's written discovery requests.


         The court recounts the facts in the light most favorable to plaintiff. In March 2013, officers with the Jacksonville police department arrested plaintiff for possession of cocaine, possession of drug paraphernalia, and carrying a concealed weapon. State v. Evans, __ N.C.App. __, 795 S.E.2d 444, 447-48 (2017). At the time, defendant Bettis was a captain with the Jacksonville police department. (Am. Compl. Ex. A (DE 12-1)). On June 27, 2013, defendant Bettis emailed the prosecutor and stated the following: “[plaintiff] has sued the department over civil rights issues in relationship to [the drug and weapon charges]. We respectfully request that you do NOT plea bargain with Mr. Evans and take the case to trial.” (Id.) Defendant Dorn is a captain with the Jacksonville police department, and he allegedly sent similar emails to the prosecutor requesting that plaintiff not receive plea offers because he filed civil lawsuits against the department. (See Mot. Am. Compl. (DE 22) at 2-3).[2]

         Defendant Keller is also an officer with the Jacksonville police department. (Am. Compl. (DE 12) § V). Plaintiff alleges defendant Keller “gave out confidential info[rmation] to several [Jacksonville police department] officers [including] that I gave up confidential info[rmation] about [a drug dealer] who was busted for drug sales.” (Id.) Defendant Keller also disclosed that plaintiff was working as a confidential informant to various assistant district attorneys and other private attorneys. (Id.; Pl.'s Decl. (DE 82-2) ¶¶ 8, 10-12, 25). Plaintiff alleges defendant Keller released this information “to intimidate me into not testifying against the police in [a lawsuit plaintiff filed against the Jacksonville police department.]” (Am. Compl. (DE 12) § V).

         Defendant Yaniero is the Jacksonville police chief, and defendant Woodruff is the Jacksonville city manager. (Id.) Plaintiff informed both of these defendants about defendant Keller's disclosure that plaintiff was a confidential informant, but they did not investigate plaintiff's claims, discipline defendant Keller, or otherwise make any changes in policing policy. (Id.)

         Defendant Edes is a private attorney who has represented Jacksonville police department officers in previous civil lawsuits plaintiff has filed against the officers. (Mot. Am. Compl. (DE 22) at 1-2). According to plaintiff, defendant Edes helped defendant Keller “cover up” Keller's criminal conduct, and instructed Jacksonville police officers to commit perjury in plaintiff's criminal prosecution and his civil lawsuits. (Id.; Pl.'s Decl. (DE 82-2) ¶¶ 15-17). Defendant Edes also allegedly attempted to intimidate plaintiff into not testifying against Jacksonville police officers in a civil lawsuit by asking him about his status as a confidential informant at a deposition. (Mot. Am. Compl. (DE 22) at 2-3; Pl.'s Dep. Tr. (DE 83-1) at 8:14-18).


         A. Standard of Review

         Summary judgment is appropriate when there exists no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Anderson v. Liberty Lobby, 477 U.S. 242, 247 (1986). The party seeking summary judgment bears the burden of initially coming forward and demonstrating an absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party has met its burden, the nonmoving party “may not rest upon the mere allegations or denials of his pleading” but “must set forth specific facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 248-49; see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The nonmoving party thus “bears the burden of showing, by means of affidavits or other verified evidence, that [a] genuine dispute of material fact exists.” Bouchat ...

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