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Vaughan v. Foltz

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

March 19, 2019

SUSAN W. VAUGHAN, an individual Plaintiff,
SHANNON FOLTZ an individual, SAMANTHA HURD an individual, KRISTEN HARRIS an individual, KATHLYN ROMM an individual, RAY MATUSKO an individual, STEPHANIE RYDER an individual, CHUCK LYCETT an individual, MELANIE CORPREW an individual, JAY BURRUS an individual, DOES 1-10 individuals, MELISSA TURNAGE, KATHERINE MCCARRON, OFFICER MIKE SUDDUTH, and OFFICER CARL WHITE, Defendants.



         This matter comes before the court on motion for summary judgment filed by defendants Jay Burrus (“Burrus”), Melanie Corprew (“Corprew”), Shannon Foltz (“Foltz”), Kristen Harris (“Harris”), Samantha Hurd (“Hurd”), Chuck Lycett (“Lycett”), Katherine McCarron (“McCarron”), Kathlyn Romm (“Romm”), Stephanie Ryder (“Ryder”), and Melissa Turnage (“Turnage”) (collectively, “DSS defendants”) (DE 60); motion for summary judgment filed by defendant Ray Matusko (“Matusko”) (DE 65); motion to dismiss filed by defendant Matusko (DE 91); motion to dismiss filed by defendants Mike Sudduth (“Sudduth”) and Carl White (“White”) (DE 135); and plaintiff's motion for extension of time to serve defendants Sudduth and White with complaint (DE 141). The matters have been fully briefed, and in this posture the issue raised are ripe for ruling. For the reasons that follow, the court grants DSS defendants' motion for summary judgment, defendant Matusko's motion to dismiss, and defendants Sudduth and White's motion to dismiss; denies as moot defendant Matusko's motion for summary judgment; and denies as moot plaintiff's motion for extension of time.


         Plaintiff initiated this action by filing motion for leave to proceed in forma pauperis (“IFP”) on August 15, 2016, accompanied by proposed complaint.[1] Plaintiff's claims arise in part from defendants' alleged involvement in the removal of plaintiff's adult daughter, Jennifer Vaughan, from plaintiff's home. Plaintiff's claims also arise in part from defendants' alleged involvement in the removal of plaintiff's grandchild, and the child of Jennifer Vaughan, a minor child referred to as “EJV, ” from plaintiff's home. Plaintiff originally asserted claims against defendants for constitutional violations pursuant to 42 U.S.C. § 1983 as well as conspiracy to violate those rights.

         Pursuant to 28 U.S.C. § 636(b)(1)(B) and Federal Rule of Civil Procedure 72(b), United States Magistrate Judge Kimberly A. Swank entered memorandum and recommendation (“M&R”) on May 8, 2017, wherein she granted plaintiff's IFP petition and recommended claims against certain defendants alleging violations of plaintiff's Fourth Amendment rights should proceed and plaintiff's remaining claims should be dismissed without prejudice. Plaintiff filed objections to the M&R on May 23, 2017, challenging the magistrate judge's determinations concerning the dismissal recommendations. On May 24, 2017, this court noted that plaintiff had filed a 50-page objection, on the heels of a 92-page complaint, seeking in part to clarify her operative pleading. The court recommitted the matter to the magistrate judge pursuant to Rule 72(b)(3) to review plaintiff's objections and address the same.

         On July 10, 2017, plaintiff filed objections to the supplemental M&R, entered June 22, 2017, again challenging the magistrate judge's determinations concerning the dismissal recommendations. Amended complaint then was filed on August 25, 2017, wherein plaintiff sought in part to add her daughter, Jennifer Vaughan, as plaintiff.

         On October 27, 2017, the court adopted some recommendations of the M&R and supplemental M&R, undertook its own frivolity review of plaintiff's amended complaint, and allowed the following two claims to proceed:

1) §1983 claim against defendants Burrus, Coprew, Foltz, Lycett, Ryder, Turnage, McCarron, and Officer Does of the Kill Devil Hills police department arising under the Fourth Amendment and
2) §1983 procedural due process claim against defendants Burrus, Corprew, Foltz, Harris, Hurd, Lycett, Matusko, Romm, and Ryder arising under the Fourteenth Amendment alleging injury to reputation regarding plaintiff's placement on the list of “responsible individuals” pursuant to N.C. Gen. Stat. § 7B-311.

Vaughan v. Foltz, No. 2:16-CV-61-FL, 2017 WL 4872484, at *1 (E.D. N.C. Oct. 27, 2017), reconsideration denied, No. 2:16-CV-61-FL, 2018 WL 1801419 (E.D. N.C. Apr. 16, 2018). With regard to Jennifer Vaughan, the court noted that plaintiff “alleges that defendants Turnage and McCarron are Jennifer Vaughan's appointed guardians, ” that “Jennifer Vaughan involuntarily was committed, and apparently so remains” and that plaintiff's “attempt to add her daughter as a party plaintiff is a blatant effort to defeat the state authorized guardianship” and “it smacks of the unauthorized practice of law before this court, ” holding a nullity plaintiff's efforts to add Jennifer Vaughan to this case. Id. at *3.

         Plaintiff thereafter filed motion to amend complaint which the court also construed as motion for reconsideration. The court denied plaintiff's motion for reconsideration on November 22, 2017, and deemed plaintiff's motion to amend, to name “Officer Does” of the Kill Devil Hills police department, as premature and thus denied without prejudice to timely renewal where plaintiff stated she was then in the process of obtaining records which in the future would permit her to name those officers.

         On April 9, 2018, DSS defendants filed instant motion for summary judgment. (DE 60). DSS defendants rely upon sworn testimony of defendants Ryder, Burrus, Lycett, McCarron, Corprew, Foltz, Turnage, and Hull, along with the following documents from the state-court custody proceedings concerning EJV (“custody proceedings”): state-court juvenile petition filed by certain DSS defendants; written adjudication stipulation (“stipulation”) entered into by plaintiff, Jennifer Vaughan, and certain DSS defendants; and order of adjudication issued by the state court, adjudicating EJV neglected. In defense of the motion, plaintiff relies upon the following: sworn testimony of plaintiff, Jennifer Vaughan, and William D. Banks (“Banks”), plaintiff's neighbor; plaintiff's motion to dismiss filed in the custody proceedings; excerpts from the North Carolina Division of Social Services Family Services Manual; documentation from Center for Neurorehabilitation concerning Jennifer Vaughan; letter from plaintiff to defendants Lycett and McCarron; evaluations of Jennifer Vaughan from CorePsych and Leigh, Brain, &Spine; and excerpts from North Carolina Traumatic Brain Injury Advisory Counsel's 2009-2010 annual report.

         On April 11, 2018, defendant Matusko filed instant motion for summary judgment and in support submits statement of material facts. (DE 65). Plaintiff did not file opposition but on November 29, 2018, as directed by the court, [2] filed consolidated “supplemental response to DSS defendants' and defendant Matusko's motions for summary judgment, ” (DE 147), with reliance upon the following: email from Molly Harris confirming plaintiff requested pediatrician recommendation in mid-May 2013; various filings in the custody proceedings, including plaintiff's edits to a statement made in court; news article; affidavit of plaintiff; and various discovery responses submitted by defendants.[3]

         On May 15, 2018, plaintiff filed motion to amend complaint, in which plaintiff sought to add defendants Sudduth and White, as well as additional defendants, claims, and allegations. (DE 72). The court held, with regard to defendants Suddouth and White, that “[t]o the extent that plaintiff seeks to join these defendants who were previously identified as [“Officer Does”] and streamline allegations associated with this [Fourth Amendment] claim [as well as plaintiff's other remaining claim under the Fourteenth Amendment] . . . plaintiff's motion to amend is granted.” (DE 79 at 3-4). Plaintiff filed second amended complaint on June 20, 2018, which is the operative complaint in this case, to the extent allowed by the court.

         Following plaintiff's filing of the operative complaint, on July 11, 2018, defendant Matusko filed instant motion to dismiss for failure to state a claim. (DE 91). In defense of motion, plaintiff seeks to rely upon the following materials: select North Carolina General Statutes; plaintiff's petition for judicial review requesting the state court to not place plaintiff on the responsible individuals list (“RIL”); and email correspondence between plaintiff and her former attorney Meader Harriss.

         On July 24, 2018, plaintiff filed amended motion for reconsideration, which the court denied on August 23, 2018. (DE 111). On August 13, 2018, DSS defendants renewed their motion for summary judgment, stating “[s]ince the DSS [d]efendants filed their summary judgment motion, the plaintiff has filed a Second Amended Complaint” to which DSS defendants filed answer, but because the second amended complaint “makes the same allegations against the DSS [d]efendants as the First Amended Complaint, on which said defendants filed their summary judgment motion in April, ” defendants need not refile or submit new motion. (DE 107 at 2).

         On September 5, 2018, the court issued text order granting to a limited extent plaintiff's “urgent request for correction of August 28 order, ” filed September 4, 2018, stating as follows:

Plaintiff is reminded again that the following two claims have been allowed to proceed: 1) whether plaintiff's Fourth Amendment rights were violated when her home was entered by defendants and 2) whether her reputation was injured, and thus her Fourteenth Amendment rights violated, by allegations concerning her placement on the list of responsible individuals pursuant to N.C. Gen. Stat. § 7B-311. Regarding the latter, the court has dismissed plaintiff's injury to reputation claims except for plaintiff's claim resting upon allegations concerning plaintiff's placement on the list of responsible individuals under N.C. Gen. Stat. § 7B-311, which the court construes to include allegations of serious neglect. The court therefore grants plaintiff's motion requesting “to address how the threat of the RIL and prosecution of serious neglect were fraudulently misused in a way that violated [plaintiff's] due process rights injuring her and her family” only to the extent these allegations are related to plaintiff's surviving claim for injury to her reputation.

         On October 1, 2018, defendants Sudduth and White filed instant motion to dismiss complaint as barred by the applicable statute of limitations pursuant to Rule 12(b)(6).[4] On October 9, 2018, defendants Sudduth and White filed motion for protective order and stay of discovery. On October 22, 2018, plaintiff filed the instant motion for extension of time to serve defendants Sudduth and White with complaint. On November 6, 2018, the court granted defendants Sudduth and White's motion for protective order and stay of discovery and held in abeyance plaintiff's motion for extension for time to be addressed concurrently with defendants Sudduth and White's motion to dismiss.

         On March 8, 2019, the court directed submission of two state-court orders discussed by plaintiff and DSS defendants in various filings, which DSS defendants timely submitted to the court on March 11, 2019.


         Except as otherwise indicated below, the facts taken in light most favorable to plaintiff and relevant to the resolution of the instant motions are summarized below.[5]

         The DSS defendants were involved in the removal of the plaintiff's adult daughter, Jennifer Vaughan, and her minor grandson, EJV, who is Jennifer Vaughan's son, from the plaintiff's home in Kill Devil Hills, North Carolina in August 2013.[6] On August 13, 2013, officials from Dare County Department of Social Services (“Dare County DSS”), accompanied by Kill Devil Hills police officers, removed Jennifer Vaughan from the home, and, on the next day, removed EJV and placed him in foster care.[7] On September 18, 2013, Dare County DSS filed a petition alleging that plaintiff's grandson was dependent and neglected. (DE 108 at 2; DE 62 ¶ 2; DE 63-8 at 5-10 (petition alleging EJV dependent and neglected)). Dare County DSS obtained guardianship over Jennifer Vaughan.

         Although the parties disagree as to why, with DSS defendants alleging possible conflict of interest and plaintiff alleging “just another unlawful tactic DSS used, ” the parties agree that Dare County DSS thereafter transferred responsibility for EJV to Currituck County Department of Social Services (“Currituck County DSS”). (DE 108 at 3-4; DE 62 ¶ 5). After custody proceedings concluded, EJV was adopted by unnamed persons, and Jennifer Vaughan was involuntarily committed at least once. See Vaughan v. Vaughan, 806 S.E.2d 80 ( N.C. Ct. App. 2017), review denied sub nom. Matter of E.J.V., 370 N.C. 581, 809 S.E.2d 873 (2018), and cert. denied, 139 S.Ct. 252, 202 L.Ed.2d 168 (U.S. 2018), reh'g denied, 139 S.Ct. 589, 202 L.Ed.2d 422 (U.S. 2018).[8]

         A. Facts Related to Fourth Amendment Claims

         1. July 16, 2013, Incident In July 2013, social workers and Kill Devil Hills police officers came to plaintiff's house with a court order, which plaintiff only saw briefly; plaintiff allowed entry under duress. (See DE 80 ¶¶ 57-59 (“The following day what appeared to [p]laintiff to be a SWAT Team consisting of several Kill Devil Hills Police officers wearing padded vests and carrying guns, along with several DSS caseworkers, demanded entrance into [p]laintiff's home. They carried an order, a copy of which was NOT given, only shown, quickly, to PLAINTIFF, bearing the signature of then Dare County Clerk of Court . . . .”)). Plaintiff alleges, against plaintiff's instructions, defendant Ryder “interrogated” plaintiff concerning vitamins, defendants Ryder and Lycett “interrogated” Jennifer Vaughan, defendant Lycett walked into plaintiff's room, and defendant Ryder went through “cabinets, drawers and [the] refrigerator[.]” (See id. ¶¶ 58-59).[9]

         2. August 13, 2013, Incident Defendants Lycett and Foltz entered plaintiff's home on August 13, 2013, “without warrant or invitation, nevertheless finding EJV well and unharmed, clean and properly clothed and in no need of immediate or other agency assistance” and “seized” Jennifer Vaughan “based on false allegations submitted by DEFENDANT RYDER to fraudulently obtain an order . . . .” (See id. ¶¶ 6, 32).[10]

         3. August 14, 2013, Incident Defendant Foltz and a police officer came to plaintiff's home on August 14, 2013, and, pursuant to a court order, took custody of EJV. (See id. ¶ 82).[11]

         4. March 4, 2015, Incident On March 4, 2015, defendant Turnage and a police officer attempted to enter plaintiff's home, described by plaintiff as follows:

In March 2015 . . . Kill Devil Hills police officer who refused to identify himself came to PLAINTIFF'S home . . . with Dare DSS social worker MELISSA TURNAGE, demanding, after forcing his foot into [p]laintiff's doorway, preventing the door from closing, entrance into PLAINTIFF'S home to “see the mother.” . . . . one officer approached and rammed his foot in the door as the mother was closing it. PLAINTIFF moved quickly to assist the mother, requesting if the police bad papers. The officer answered “no, ” but refused to remove his foot, while PLAINTIFF managed to move a piece of furniture to help the mother keep the door closed and also helped her push against the officer who continued to try to enter . . . . PLAINTIFF stated numerous times that the officer was violating her constitutional rights, and was trespassing on her property insisting that he remove his foot from her doorway and leave her property.
When PLAINTIFF asked the officer his name, he responded only “What do you want it to be.”. . . . Finally, after pushing on the door for at least 10 minutes, long enough to argue with [p]laintiff and have the conversation stated above, and long enough for [p]laintiff to tell the Officer multiple times that he was violating her rights, OFFICER White or Sudduth or unnamed Officers Doe yelled that he'd be back with papers, and he would “break down” PLAINTIFF'S door. The mother and PLAINTIFF were both shaking violently as OFFICER DOE left, and the mother, already trying to recover from trauma, was traumatized all over again.
Next, PLAINTIFF called a neighbor and asked him to come over with his video camera . . . . Police officers did indeed return at dark, again traumatizing the mother. Unidentified Kill Devil Hills Officers came to the door and the neighbor began filming. He asked if the officers had papers, and they responded that they did. The neighbor asked to see the papers - to put them up to the door window and· when the officer did; the neighbor began filming, but the officers took it down and said he could not film the paper, which brings into question whether or not they actually had legal warrants . . . . soon thereafter [the officers] began descending the stairs to leave the premises.

         (See DE 80 ¶¶ 202-209; DE 108-2 (Jennifer Vaughan's affidavit); DE 108-9 (Banks's affidavit); DE 108-10 (plaintiff's affidavit); DE 62 ¶ 20 (DSS defendants stating “[o]n one occasion, [defendant Turnage] was with a police officer, who knocked on the door and stuck his foot in the doorway when the plaintiff answered but quickly withdrew it, and Turnage remained outside . . . . This incident occurred on March 4, 2015)).[12]

         In sum, although plaintiff alleges other DSS defendants had knowledge of or directed others to enter plaintiff's home illegally the above four times, the parties agree that only four Dare County DSS officials ever physically entered or tried to enter plaintiff's home: defendants Turnage, Lycett, Foltz, and Ryder. (See DE 108 at 13-16; DE 62 ¶¶ 12-15).

         B. Facts Related to Fourteenth Amendment Claims for Injury to Reputation

         Plaintiff was initially named in a petition alleging serious neglect of EJV. (See DE 63-8 at 5-10). Although plaintiff disputes DSS's authority to so allege and the legality of execution of the petition, the parties agree that after the Currituck County DSS took over EJV's case from Dare County DSS, it filed a petition on September 18, 2013, for a determination of custody of the child. (DE 108 at 23; DE 62 ¶ 26; DE 63-8 at 5-10). Based on her belief at that time, defendant Hull, the DSS attorney, checked a box on the petition form that said plaintiff had “abused or seriously neglected” the child, though it is clear from the form that only serious neglect was alleged, not abuse. (DE 108 at 23; DE 62 ¶ 26; DE 63-8 at 5-10).[13] Thereafter, plaintiff filed a petition for judicial review of the determination that she was a responsible individual. The clerk of superior court for Currituck County, defendant Matusko, did not calendar the petition for judicial review for hearing.

         Currituck County DSS never proceeded on the allegation of serious neglect against plaintiff. At court hearing on November 18, 2013, the parties entered into a stipulation in which it was agreed that DSS would not move forward on the allegation of serious neglect, although plaintiff alleges she was coerced into signing this stipulation. (DE 63-8 at 11-12; DE 108 at 25-26).


         A. Standard of Review

         1. Motion to Dismiss “To survive a motion to dismiss” under Rule 12(b)(6), “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Factual allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. In evaluating whether a claim is stated, “[the] court accepts all well-pled facts as true and construes these facts in the light most favorable to the plaintiff, ” but does not consider “legal conclusions, elements of a cause of action, . . . bare assertions devoid of further factual enhancement[, ] . . . unwarranted inferences, unreasonable conclusions, or arguments.” Nemet Chevrolet, Ltd. v., Inc., 591 F.3d 250, 255 (4th Cir. 2009) (citations omitted).

         2. Motion for Summary Judgment

         Summary judgment is appropriate where “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). The party seeking summary judgment “bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the 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 non-moving party must then “come forward with specific facts showing that there is a genuine issue for trial.” Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986) (internal quotation omitted). Only disputes between the parties over facts that might affect the outcome of the case properly preclude entry of summary judgment. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (holding that a factual dispute is “material” only if it might affect the outcome of the suit and “genuine” only if there is sufficient evidence for a reasonable jury to return a verdict for the non-moving party).

         “[A]t the summary judgment stage the [court's] function is not [itself] to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Id. at 249. In determining whether there is a genuine issue for trial, “evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in [non-movant's] favor.” Id. at 255; see United States v. Diebold, Inc., 369 U.S. 654, 655 (1962) (“On summary judgment the inferences to be drawn from the underlying facts contained in [affidavits, attached exhibits, and depositions] must be viewed in the light most favorable to the party opposing the motion.”).

         Nevertheless, “permissible inferences must still be within the range of reasonable probability, . . . and it is the duty of the court to withdraw the case from the [factfinder] when the necessary inference is so tenuous that it rests merely upon speculation and conjecture.” Lovelace v. Sherwin-Williams Co., 681 F.2d 230, 241 (4th Cir. 1982) (quotations omitted). Thus, judgment as a matter of law is warranted where “the verdict in favor of the non-moving party would necessarily be based on speculation and conjecture.” Myrick v. Prime Ins. Syndicate, Inc., 395 F.3d 485, 489 (4th Cir. 2005). By contrast, when “the evidence as a whole is susceptible of more than one reasonable inference, a [triable] issue is created, ” and judgment as a matter of law should be denied. Id. at 489-90.

         B. Analysis

         The court first addresses plaintiff's claims against defendant Sudduth and White, holding these claims are barred by the applicable statute of limitations. The court next turns to plaintiff's constitutional claims, finding the relevant DSS defendants are entitled to qualified immunity regarding plaintiff's Fourth Amendment and Fourteenth Amendment claims and that plaintiff's Fourteenth Amendment claim against defendant Matusko fails to state a claim upon which relief can be granted.

         1. Defendants Sudduth and White

         Plaintiff's claims against defendants Sudduth and White are dismissed as barred by the applicable statute of limitations. Plaintiff has been allowed to proceed on claims under § 1983, alleging these two defendants were involved in a March 4, 2015, incident that resulted in a violation of plaintiff's Fourth Amendment rights. (See DE 80 ...

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