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Norton v. High

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

May 9, 2019

BRIAN NICHOLAS HIGH, in his personal capacity and his official capacity as a Deputy Sheriff of Columbus County, North Carolina; LEWIS L. HATCHER, in his personal capacity and his official capacity as Sheriff of Columbus County, North Carolina; WESTERN SURETY CO. d/b/a/ CNA SURETY INSURANCE as the SURETY for the Columbus County Sheriff; TRACEY WARD also name “John Doe” in his personal capacity and his official capacity as Lieutenant of Columbus County Detention Center of the Sheriff; and RENE TREVINO, in his personal capacity and his official capacity as Deputy Sheriff of Columbus County, North Carolina, Defendants.



         This matter is before the court on the parties' cross motions for summary judgment, (DE 34, DE 56), as well as defendants' motion for sanctions, (DE 39), and plaintiff's motion to show cause, (DE 41). The matters have been fully briefed, and in this posture the issues raised are ripe for ruling. For the reasons that follow, the court grants defendants' motions and denies plaintiff's motions.


         Plaintiff, proceeding pro se, initiated this action by filing complaint on March 21, 2018, against individual defendants Brian Nicholas High (“High”), Lewis L. Hatcher (“Hatcher”), Tracey Ward (“Ward”), and Rene Trevino (“Trevino”), all law enforcement officers, as well as North Carolina Western Surety (“surety”). Plaintiff alleges violations of his Fourth Amendment rights and negligent infliction of emotional distress. He brings vicarious claims and claims for supervisor liability, based on three events transpiring on two different days: 1) defendant High's traffic stop of plaintiff conducted on March 8, 2018; 2) defendant Trevino's alleged assault of plaintiff on March 16, 2018, following plaintiff being held in civil contempt in child support proceedings at Columbus County courthouse (“courthouse”); and 3) defendant Ward's alleged responsibility for plaintiff being retained at the Columbus County detention center (“detention center”), also on March 16, 2018, following plaintiff's purge of the civil contempt charge.

         The parties have engaged in an ongoing and contentious discovery dispute regarding the March 16, 2018 security camera footage from both the courthouse and detention center, which is the subject of the plaintiff's instant motion to show cause filed October18, 2018, (DE 41), as well as plaintiff's previously filed September 10, 2018 motion to compel, which was denied October 25, 2018. Defendants maintain plaintiff has received the requested unedited footage in its entirety, stating the security camera footage disclosed

accounts for every single moment of the Plaintiff's whereabouts and actions (and the actions of Columbus County Sheriff's Deputies and Detention Officers with whom he interacted) from 10:00 a.m. until 3:04 p.m. on March 16, 2018, encompassing the period of time at issue in the Plaintiff's Complaint.

(DE 55 at 3-4).[1] Defendants have also submitted this footage to the court, (see courthouse footage (DE 28-13), detention center footage (DE 28-14), detention center footage (DE 28-15)), as well as cell phone footage created by plaintiff on March 8, 2018, (see cell phone footage (DE 28-13)).[2]

         On October 4, 2018, plaintiff filed instant motion for summary judgment. (DE 34). In support, plaintiff relies on previously-discussed footage as well as affidavits by plaintiff, Connie Robinson (“Robinson”), and Gerald Hemingway (“Hemingway”); plaintiff's medical records; and receipts signed by Magistrate Judge Gregory Greene (“Magistrate Judge Greene”) evincing plaintiff's civil contempt purge.[3]

         On October 16, 2018, defendants filed the instant motion for sanctions, seeking sanctions for plaintiff's failure to appear at his duly-noticed deposition scheduled for Monday, October 1, 2018 in Whiteville, North Carolina. (DE 39). On November 16, 2018, defendants filed instant motion for summary judgment, (DE 56), also relying on previously-discussed footage as well as affidavits of all individual defendants, Magistrate Judge Greene, detention officers Mitra Jenkins and Bernetta Crawford, attorney Michael Stephens, and Clementine Thompson (“Thompson”); court orders regarding plaintiff's civil contempt; and plaintiff's medical records.


         Except as otherwise noted, the undisputed facts may be summarized as follows.

         A. March 8, 2018 Traffic Stop Conducted by Defendant High

         On March 8, 2018, while driving in his marked Columbus County sheriff's patrol car near Whiteville, North Carolina, defendant High observed a vehicle, towing a trailer, pull out from a stop sign onto North Carolina Highway 701 without properly yielding to oncoming traffic, nearly causing a traffic accident. (High Affidavit (DE 52-2) ¶ 4). Defendant High initiated a traffic stop of the vehicle, which was operated by plaintiff.

         Defendant High advised plaintiff that he stopped plaintiff because he pulled out in front of oncoming traffic and almost caused a collision. After confirming the validity of the vehicle registration as well as plaintiff's driver's license, defendant High returned to the vehicle and observed plaintiff recording the interaction on plaintiff's cell phone. (See cell phone footage (DE 28-13)). Defendant High issued a warning to plaintiff. As confirmed by plaintiff's cell phone footage, defendant High remained professional throughout the incident, and plaintiff proceeded without citation. (See id.; see also High Affidavit (DE 52-2)).[4]

         The traffic stop lasted approximately six minutes.[5]

         B. March 16, 2018 Incident with Defendant Trevino

         On the morning of March 16, 2018, Judge William A. Fairley held plaintiff in civil contempt for plaintiff's failure to pay child support as ordered by the court, also ordering that plaintiff be taken into custody and detained in the detention center until such time as he paid the sum of $4, 150.00 to purge his civil contempt. (DE 36-8, DE 28-4, Travino affidavit (DE 52-3) ¶¶ 5-6)). Plaintiff was taken into custody by the bailiffs, including defendant Travino.

         Plaintiff was secured in a holding cell at the courthouse prior to being moved to the detention center. Prior to transporting plaintiff, security camera footage shows defendant Travino opened a locker in a adjoining room to the holding cells and retrieved a set of restraints. Defendant Travino then entered the area of the holding cells and opened the door to plaintiff's holding cell, entering the cell at approximately 10:41:15 a.m.[6] Less than a minute later, defendant Travino exits the cell at approximately 10:42:04 a.m., and plaintiff follows out of the cell at approximately 10:42:19 a.m., with his left hand in restraints, connected by a long chain to restraints on his ankle. (See courthouse footage (DE 28-13) at camera C-27 at 10:41:15-10:42:19). At 10:42:24 a.m., defendant Travino opened Hemingway's cell, located across from plaintiff's cell, and the three men rode an elevator to where the transport van was located.

         Plaintiff informed defendant Travino that he was physically unable to enter and ride in the transport van, which required plaintiff to walk up steps to enter the rear of the van, and asked for a personal transport by Sheriff Hatcher in his patrol car. (Travino affidavit (DE 52-3) ¶ 17; see also courthouse footage (DE 28-13) at camera C-8 at 10:46:14-10:48:12). Defendant Trevino told plaintiff this was not an option, instructed plaintiff to enter the van, and offered plaintiff his right arm for support, which plaintiff briefly accepted. (Travino affidavit (DE 52-3) ¶ 17; see also courthouse footage (DE 28-13) at camera C-8 at 10:46:14-10:48:12). Then plaintiff sat down on the floor of the transport van at the rear of the vehicle, and defendant Trevino removed the restraints from plaintiff's left wrist and ankles to allow plaintiff to maneuver. (Travino affidavit (DE 52-3) ¶ 17; see also courthouse footage (DE 28-13) at camera C-8 at 10:46:14-10:48:12). Plaintiff then scooted himself into the rear of the transport van unassisted. (Travino affidavit (DE 52-3) ¶ 17; see also courthouse footage (DE 28-13) at camera C-8 at 10:46:14-10:48:12). Defendant Trevino “advised [plaintiff] to sit on the bench in the rear prisoner section and fasten his seat belt, but [plaintiff] responded that he could not do so, ” to which defendant Trevino told plaintiff “to at least try.” (See Trevino affidavit (DE 52-3) ¶ 18; see also courthouse footage (DE 28-13) at camera C-8 at 10:46:14-10:48:12).

         Defendant Trevino drove the two prisoners to the detention center, located approximately a mile away. (Trevino affidavit (DE 52-3) ¶ 6). Upon arrival plaintiff exited the transport van of his own accord and walked inside the door to the detention center. (See detention center footage (DE 28-14) at reverse angle of CCDC Sally Port, at 10:53:00-10:53:20; see also id. at entry into CCDC booking area, at 10:53:00-10:53:39)).

         Plaintiff alleges that while being transported on the floor of the transport van to the jail, plaintiff suffered an injury to his left ear. (DE 65 at 16).

         C. March 16, 2018 Detention and Release

         Robinson, plaintiff's sister, appeared at the detention center on March 16, 2018, at 1:15 p.m. and delivered $4, 150.00 to purge plaintiff's civil contempt. (See Robinson Affidavit (DE 27-2) at 2) . A r eceipt was issued by Magistrate Judge Greene, indicating that plaintiff had paid the requisite amount. (See DE 36-8 at 1). Thereafter, Magistrate Judge Greene informed a detention officer that plaintiff's civil contempt had been purged and that he could be released after he received his release paperwork. (Greene Affidavit (DE 52-5) ¶ 6).

         Plaintiff went to Magistrate Judge Greene's window, located in the detention center, and received the receipt. (Id. ¶ 8). Plaintiff strenuously objected to this receipt as indicating that he paid the requisite amount; therefore, as alleged by plaintiff, “in an attempt to satisfy the Plaintiff, a replacement receipt” was issued, indicating it was a family member, not plaintiff, that paid this amount. (DE 65 at 5; Greene Affidavit (DE 52-5) ¶ 8; DE 36-8 at 2; DE 36-8 at 4).

         Plaintiff's demand was unusual. (Greene Affidavit (DE 52-5) ¶ 9 (“Mr. Norton's attitude and demands confused me. 1 did not understand why he did not want the receipt and other paperwork to indicate that he had paid the money necessary to purge his contempt . . . . When I asked him why he was not satisfied with the receipt, Mr. Norton advised me that the $4, 150.00 that was paid was not his money and he did not want anyone to think that it was.”)). While determining what to do about issuing a replacement receipt, Magistrate Judge Greene had plaintiff returned to the holding cell from 2:07 p.m. to 2:28 p.m., during which time Magistrate Judge Green spoke with a clerk from the courthouse for guidance. (Id. ¶ 10; detention center footage (DE 28-15) at 2:07-2:28).

         Defendant Ward arrived at the detention center at 2:26 p.m. (Ward Affidavit (DE 52-4) ¶ 6; detention center footage (DE 28-15) at 2:26:16); see also DE 65 at 10-11 (“when defendant Ward entered the Detention Center, Norton was still in a cell and not out of the booking area until at 14:27:57”)).

         After plaintiff was released from the holding cell at approximately 2:28 p.m., defendant Ward attempted to take plaintiff's picture for the detention center's database, which plaintiff attempted to prevent. (Ward Affidavit (DE 52-4) ¶¶ 7-8; id. ¶ 4 (“It is the policy of the Sheriff of Columbus County that all inmates detained in the Columbus County Detention Center, regardless of the reason for and length of their detention, be photographed for record keeping purposes.”)). After a picture was secured, plaintiff returned to Magistrate Judge Greene's window, was given the replacement receipt, and was against dissatisfied; however, at this point, Magistrate Judge Greene told plaintiff the conversation was over and plaintiff was free to leave. (Greene Affidavit (DE 52-5) ¶ 12).

         Around 2:56 p.m. plaintiff exited the detention center and left the premises. (DE 36 at 2; Robinson Affidavit (DE 27-2) at 2).


         A. Standard of Review

         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 the 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 ...

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