United States District Court, E.D. North Carolina, Western Division
GEORGE R. EVANS, SR., Plaintiff,
CITY OF JACKSONVILLE, NORTH CAROLINA, POLICE CHIEF MICHAEL YANIERO, CAPT. JASON BETTIS, SGT. J.N. KELLER, RICHARD WOODRUFF, CAPTAIN DORN, and BRIAN EDES, Defendants.
W. FLANAGAN, UNITED STATES DISTRICT JUDGE
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.
OF THE CASE
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.
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). 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.
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.
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.
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).
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)
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.)
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)
Standard of Review
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 ...