United States District Court, W.D. North Carolina, Charlotte Division
CASEY L. JONES, a/k/a STEPHANIE HESS, and TODD M. HESS, Plaintiffs,
UNION COUNTY SHERIFF'S OFFICE, EDDIE CATHEY, in his official capacity and capacity as Sheriff of Union County, North Carolina, STEPHEN EASON, in his individual capacity and capacity as an employee of the United County Sheriff's Office, MENDEL MILES, in his individual capacity and capacity as an employee of the Union County Sheriff's Office, JOHN JULIAN ALDRIDGE, in his individual capacity and capacity as an employee of the Union County Sheriff's Office, JOHN DOES 1-4, in their individual capacities and capacities as employees of the Union County Sheriff's Office, DISTRICT ATTORNEY'S OFFICE OF UNION COUNTY, NORTH CAROLINA, TREY ROBISON, in his individual capacity and capacity as District Attorney of Union County, North Carolina, and KERRI FREDHEIM, in her individual capacity and capacity as Assistant District Attorney of Union County, North Carolina Defendants.
MEMORANDUM AND RECOMMENDATION
C. KEESLER UNITED STATES MAGISTRATE JUDGE
MATTER IS BEFORE THE COURT on the “Motion To
Dismiss By Defendants Cathey, Eason, Miles, Aldridge, And
Union County Sheriff's Office” (Document No. 5);
and the “Motion To Dismiss On Behalf Of Defendants
Robison, Fredheim, And District Attorney's Office Of
Union County, North Carolina” (Document No. 9). These
motions have been referred to the undersigned Magistrate
Judge pursuant to 28 U.S.C. §636(b), and are now ripe
for disposition. Having carefully considered the arguments,
the record, and the applicable authority, the undersigned
will respectfully recommend that the motions be
have provided thorough summaries of Plaintiffs' factual
allegations as set forth in the “Complaint”
(Document No. 1). See (Document No. 6, pp. 2-6 and
Document No. 10, pp. 2-10) (citing Document No. 1, pp. 7-33).
It does not appear that Plaintiffs object to Defendants'
summaries of the facts. (Document Nos. 12 and 13). As such,
the undersigned will largely incorporate those summaries
Casey L. Jones (“Jones”), also known as Stephanie
Hess, was designated as male at birth; however, the male
gender designation assigned to her at birth does not conform
to her female gender identity. (Document 1, ¶ 19). In
October 2015, Jones was diagnosed with Gender Identity
Disorder, a medical condition where the person's gender
identity does not conform to their anatomical sex at birth.
(Document 1, ¶¶ 20-21). Gender Dysphoria or Gender
Identity Disorder is recognized as a serious medical
condition by the American Psychiatric Association in the
Fifth Edition of the Diagnostic and Statistical Manual of
Mental Disorders. (Document No. 1, ¶ 21). Jones treats
her Gender Dysphoria with prescribed estrogen therapy and by
living full time as a member of the gender corresponding with
her gender identity, a treatment known as the
“real-life experience.” (Document No. 1,
¶¶ 27, 36). Jones has altered her physical
appearance to conform to her female gender identity by
growing her hair long and dressing in feminine clothing.
(Document No. 1, ¶ 38). Jones also elected to undergo an
orchiectomy in November 2015. (Document No. 1, ¶ 37).
2016, Jones lived in South Carolina. (Document No. 1, ¶
42). Jones petitioned the South Carolina Ninth Judicial
Circuit Family Court for an order granting her a gender
change from male to female, which the court granted.
(Document No. 1, ¶¶ 42-43). Jones then had her
South Carolina driver's license and her Oklahoma birth
certificate “changed to indicate she is female.”
(Document No. 1, ¶ 44).
and Plaintiff Todd M. Hess (“Hess”) (together
“Plaintiffs”) were legally married on August 16,
2017. (Document No. 1, ¶ 40). Plaintiffs' marriage
license lists Stephanie Hess as a female. (Document No. 1,
has been diagnosed with bipolar disorder and anxiety disorder
and has drug and alcohol addictions. (Document No. 1, ¶
46). When Jones becomes inebriated due to her alcohol
addiction, she can become out of control. (Document No. 1,
¶ 47). In November 2017, Jones “called 911 to
report herself” and was arrested for possession of
“what was believed to be four pills of ecstasy.”
(Document No. 1, ¶ 52).
had been involuntarily committed five times for treatment.
(Document No. 1, ¶ 50). On January 29, 2018, Plaintiff
Jones was admitted to a treatment center in Florida where she
remained until March 14, 2018. (Document No. 1, ¶ 54).
March 15, 2018, Jones returned to North Carolina to the
residence she shares with Plaintiff Hess. Jones planned to
enter treatment at Dove's Nest, but there was not a bed
available for her until March 19, 2018. Jones moved her
Dove's Nest admission date to March 20, 2018, in order to
have some dental work performed on March 19, 2018. (Document
No. 1, ¶ 56)
the evening of March 19, 2018, Jones acquired alcohol and
drank it until she became inebriated. (Document No. 1, ¶
57). Jones then called 911 on Hess. Id. Union County
Sheriff's Deputies arrived at Plaintiffs' residence
where they recognized that Jones was inebriated while Hess
was not, “which was the way these calls would routinely
play themselves out.” (Document No. 1, ¶ 58).
Deputies had been out to Plaintiffs' residence on
“at least ten, if not more occasions, over the course
of the past year, and they always found that Plaintiff Jones
was in an inebriated state . . . Jones would routinely make
the calls to 911 while in her drunken state.” (Document
No. 1, ¶ 102).
March 19, 2018, the deputies allegedly advised Hess that they
could not do anything and that his only option was to go to a
Union County magistrate and seek an Order to involuntarily
commit Plaintiff Jones. (Document No. 1, ¶ 59). Hess
told the deputies that Jones was scheduled to go into
treatment the next morning so he would not go to the
magistrate that evening. (Document No. 1, ¶ 60).
next morning, March 20, 2018, Jones woke up early and began
to drink heavily. (Document No. 1, ¶ 61). Jones told
Hess that she did not intend to go to Dove's Nest that
morning. Id. Hess told her that if she did not go to
Dove's Nest he had no other choice but to have her
involuntarily committed. (Document No. 1, ¶ 62). In
response, Jones took one of Plaintiffs' cars and fled
from the residence. (Document No. 1, ¶ 63).
then went to a Union County magistrate who issued an Order to
have Jones involuntarily committed. (Document No. 1, ¶
64). When Hess returned from the magistrate, a sheriff's
deputy and Defendants Doe 3 and 4 were waiting at
Plaintiffs' residence. (Document No. 1, ¶ 65). Hess
approached the deputies assuming they were at the residence
to involuntarily commit Plaintiff Jones into the local
hospital pursuant to the magistrate's order. (Document
No. 1, ¶ 66). Instead, the deputies told Hess that Jones
had called 911 “as she regularly did whenever she
became inebriated.” Id. The deputies did not
know about the involuntarily commitment order. (Document No.
1, ¶ 67). As they were leaving Plaintiffs'
residence, Defendant Doe 3 allegedly indicated, as he had
regularly done in the past, that Jones was a male and not a
female, to which Defendant Doe 4 allegedly agreed. (Document
No. 1, ¶ 68).
March 21, 2018, Hess picked up Jones from the hospital where
she was involuntarily committed. (Document No. 1,
¶¶ 71-72, 74). Plaintiff Jones was to be admitted
to Dove's Nest later that day. (Document No. 1, ¶
73). On the way to Dove's Nest, Plaintiffs stopped by
their residence in order for Jones to shower and pack items
she would need while at Dove's Nest. (Document No. 1,
¶ 74). At Dove's Nest, the admissions coordinator
determined Jones had alcohol on her breath and could not be
admitted that day. (Document No. 1, ¶ 75). Instead,
Jones was to return to Dove's Nest for admission the
morning of March 23, 2018. (Document No. 1, ¶ 80).
returned to their residence that evening where Hess noticed
that Jones was drinking alcohol. (Document No. 1,
¶¶ 88-89). Hess reminded Jones that she could not
be admitted to Dove's Nest if she had alcohol in her
system. (Document No. 1, ¶ 91). At about 9:00 pm, Hess
went to bed. (Document No. 1, ¶ 90). Later, Jones woke
up Hess in a drunken rage and took Hess' cell phone.
(Document No. 1, ¶ 92). Hess went downstairs to retrieve
his cell phone from Jones believing that he may need to call
911. (Document No. 1, ¶ 93). As Hess tried to grab his
cell phone from Jones's hand, Jones threw the cellphone
to the floor causing the screen to break. (Document No. 1,
¶ 94). Hess immediately called 911 for assistance.
(Document No. 1, ¶ 96).
Eason and Defendants Does 1 and 2, all employees of the Union
County Sheriff's office, arrived at Plaintiffs'
residence. (Document No. 1, ¶ 97). Defendant Doe 2
remained outside with Plaintiff Hess while Defendants Eason
and Doe 1 went inside Plaintiffs' residence to question
Plaintiff Jones. (Document No. 1, ¶ 98). Defendants
Eason and Doe 1 noticed red marks surrounding Jones's
neck and asked her if Plaintiff Hess choked her; however,
Jones does not recall her response to their question.
(Document No. 1, ¶¶ 99-100). Defendant Eason wrote
in his report that Hess admitted to choking his wife, Jones.
(Document No. 1, ¶ 120). Hess asserts that he did not
choke or harm Jones the evening of March 22, 2018, and that
he did not admit to doing so to Defendant Eason. (Document
No. 1, ¶¶ 101, 121).
Eason then went outside to question Hess. (Document No. 1,
¶ 106). Hess tried to tell Defendant Eason that Jones
suffers from alcohol addiction, that she had been
involuntarily committed by a Union County Magistrate two days
earlier, on March 20, 2018, and that she was scheduled to go
to Dove's Nest for treatment the next morning. (Document
No. 1, ¶¶ 106, 108). Defendant Eason then told Hess
that he was placing him and Plaintiff Jones under arrest.
(Document No. 1, ¶ 109). Todd Hess was charged with
“assault on a woman” in Union
County File No. 18 CR 051508 and Casey Jones was charged with
“simple assault” in Union County
File No. 18 CR 051509. (Document No. 1, ¶ 113) (emphasis
added). Plaintiffs assert that Defendant Eason did not have
probable cause to arrest Hess for assault. (Document No. 1,
Eason transported Hess to the Union County Jail, while either
Defendant Doe 1 or Defendant Doe 2 transported Jones to the
jail. (Document No. 1, ¶ 114). Jones was taken inside
the Union County Jail for processing first, while Hess
remained in the back of a patrol car. (Document No. 1, ¶
117). Defendant Eason exited the patrol car and went inside
the jail. (Document No. 1, ¶ 118). When Defendant Eason
returned to the patrol car, he exclaimed to Hess that Jones
“has a penis.” (Document No. 1, ¶ 119).
jail, Jones was placed in solitary confinement instead of
being placed in the women's section of the jail.
(Document No. 1, ¶ 31). Defendants Miles and Aldridge
required Jones to be secluded from the other female inmates
in one area of the jail. (Document No. 1, ¶ 147).
Plaintiffs contend that placing Jones “in the
woman's section of the jail would have been the best
approach given her Gender Dysphoria and desires to be
recognized as female.” (Document No. 1, ¶ 32).
Defendants treated Jones differently than other females taken
into custody and held at the Union County Jail despite
knowing that she was legally a female by the information on
her driver's license or by being told by Hess of her
female gender. (Document No. 1, ¶ 146). Plaintiffs
assert that Defendant Miles stated the jail determines an
inmate's sex based on the “the parts they
have” and not on their legal status. (Document No. 1,
¶ 149). Plaintiffs further assert that Defendant Eason
discriminated against Jones by taking her to jail instead of
to a treatment center. (Document No. 1, ¶¶
Hess submitted a public records request to Union County
Government Emergency Services for the 911 call information
from the evening of March 22, 2018. (Document No. 1, ¶
166). On March 29, 2018, Susan Farr, Operations Manager for
Union County Government Emergency Services, responded to
Plaintiff Hess's public records request via email stating
that she “provided all that  [she could] without a
subpoena.” (Document No. 1, ¶ 167).
April 25, 2018, Plaintiff Jones “committed herself to a
long term, in patient treatment program” for drug and
alcohol addiction at Dove's Nest “where she
remained through the duration of the program before filing
this Complaint.” (Document No. 1, ¶ 49).
10, 2018, Hess issued a subpoena to Defendant Cathey and
Defendant Union County Sheriff's Office (hereinafter
known as “UCSO”) to produce evidence, documents,
and 911 call transcripts. (Document No. 1, ¶ 168).
Defendant Aldridge responded to the subpoena indicating that
Defendant Cathey would not produce any such evidence, and
filed a Motion to Expunge Subpoena on behalf of Defendants
Cathey and UCSO in Union County Court File No. 18 CR 051508.
(Document No. 1, ¶¶ 169-170).
4, 2018, Hess also issued a subpoena to Defendants Kerri
Fredheim (“Fredheim”) and the District
Attorney's Office of Union County, North Carolina
(“DAO”) for evidence, documents, and 911
transcripts. (Document No. 1, ¶ 180) Defendant Fredheim
responded by filing a Motion to Expunge Subpoena in Union
County File No. 18 CR 051508. (Document No. 1, ¶ 181).
In her motion, Fredheim acknowledged that exculpatory
evidence, or Brady evidence, would have to be
produced to Hess. (Document No. 1, ¶ 182). Hess asserts
that it was unclear to him whether Defendant Fredheim
intended to give him exculpatory evidence. Id.
hearing was held in Union County District Court on June 12,
2018 regarding the motion filed by Defendant Aldridge on
behalf of Defendants Cathey and UCSO. (Document No. 1,
¶¶ 171, 174, 177). Purportedly, Defendant Aldridge
stated to the Court that Defendant UCSO had no controlling
oversight regarding the distribution of content from 911
calls. (Document No. 1, ¶177). The presiding District
Court Judge entered an Order granting the Motion to Quash the
Subpoena filed on behalf of Defendants Cathey and UCSO on the
basis that discovery is not allowed while a matter is pending
in District Court. (Document No. 1, ¶ 171). In entering
the Order, the District Court Judge allegedly
“emphasized that no such subpoena was needed since
Defendants were constitutionally obligated to produce
exculpatory evidence to Plaintiff Hess.” (Document No.
1, ¶ 171).
or about June 12, 2018, the presiding District Court Judge
entered an Order granting the Motion to Quash the Subpoena
filed on behalf of Defendants Fredheim and the DAO. (Document
No. 1, ¶ 183). Again, the District Court Judge allegedly
“emphasized that no such subpoena was needed since
Defendants were constitutionally obligated to produce
exculpatory evidence to Plaintiff Hess.” (Document No.
1, ¶ 183). Plaintiffs contend that Defendants failed to
produce exculpatory evidence. (Document No. 1, ¶ 184,
further allege that during the June 12, 2018 District Court
hearing “Defendant Fredheim stated in Court that
Plaintiff Hess and Plaintiff Jones were ‘estranged'
without having definitive proof to support the
statement.” (Document No. 1, ¶ 191). Plaintiffs
assert that the legal definition of estrangement includes
abandonment or alienation, and suggest that the legal
definition leads to an implication that Plaintiffs were
“unchaste.” (Document No. 1, ¶¶
192-193). Plaintiffs further assert that Fredheim's
statement in court that Hess and Jones were
“estranged” was false and malicious, slanderous,
and evidence of “her discriminatory belief that
Plaintiff Hess as a straight male married to a transgender
female cannot be in an unchaste relationship.”
(Document No. 1, ¶¶ 195, 197). Plaintiffs also
assert that Fredheim's statement characterizing her
voluntary commitment for treatment as estrangement from her
husband “invidiously discriminated against Plaintiff
Jones' disability.” (Document No. 1, ¶ 198).
Jones and Hess, appearing pro se, initiated the
instant action with the filing of their
“Complaint” (Document No. 1) on September 19,
2018. The Complaint is brought against twelve
(12) Defendants and includes seventeen (17) causes of action.
(Document No. 1). Defendants include the Union County
Sheriff's Office (“UCSO”), Sheriff Eddie
Cathey (“Cathey”), Deputy Stephen Eason
(“Eason”), Captain Mendel Miles
(“Miles”), Attorney John Julian Aldridge
(“Aldridge”) and four (4) unnamed deputy John Doe
employees of the UCSO (“Defendant Doe 1-4”), (all
together, the “Sheriff Defendants”). Id.
Defendants also include the District Attorney's Office of
Union County, North Carolina (“DAO”), District
Attorney Trey Robison (“Robison”), and Assistant
District Attorney Kerri Fredheim (“Fredheim”)
(all together, “State Judicial Defendants”).
state court action pending against Plaintiff Todd Hess,
charging him with assault on a female - his wife Casey Lee
Jones, a/k/a Stephanie Hess - was dismissed on November 7,
2018. (Document No. 6, p. 6; Document No. 6-1, p. 3); see
also (Document No. 10, p. 10; Document No. 10-2, p. 2).
The state prosecutor dismissed the action, noting that
“[v]ictim has recanted and refuses to testify.”
Id. (citing Document No. 6-1, pp. 4-5); see
also (Document No. 10-1, p. 2). Specifically, Plaintiff
Jones provided an “Affidavit” after listening to
the 911 call she made on March 22, 2018. (Document No. 6-1,
p. 4). Jones stated in part that she did not remember:
stating to the 911 operator that my husband had attempted to
choke or strangle me. Furthermore, I do not remember my
husband attempting to choke or strangle me on the night in
question. These statements were likely said due to my
No. 6-1, p. 5). Jones' Affidavit further provides they
she refuses to testify against her husband, Todd Hess, and
that she requests that the charges against her husband
“in which I am the alleged victim be dismissed.”
Id. The pending state charge against Jones for
simple assault on Hess was also dismissed by the state
prosecutor on November 7, 2018. (Document No. 6, p. 6;
Document No. 6-2, p. 4); see also (Document No. 10,
December 19, 2018, the pending “Motion To Dismiss By
Defendants Cathey, Eason, Miles, Aldridge, And The Union
County Sheriff's Office” (Document No. 5) and
“Motion To Dismiss On Behalf Of Defendants Robison,
Fredheim, and District Attorney's Office Of Union County,
North Carolina” (Document No. 9) were filed by the
Sheriff Defendants and State Judicial Defendants (together,
“Defendants”) in this Court. Sheriff Defendants
seek dismissal pursuant to Fed.R.Civ.P. 12(b)(6) and the
State Judicial Defendants seek dismissal pursuant to
Fed.R.Civ.P. 12(b)(1), (2), and (6) of the instant lawsuit
before this Court for alleged civil rights violations.
pending motions have been briefed and are now ripe for review
and a recommended disposition to the Honorable Kenneth D.
STANDARD OF REVIEW
motion to dismiss under Rule 12(b)(1) seeks to dismiss a
complaint for lack of subject matter jurisdiction. Fed.
R. Civ. P. 12(b)(1). The plaintiff has the burden of
proving that subject matter jurisdiction exists. See
Richmond, Fredericksburg & Potomac R.R. Co. v. United
States, 945 F.2d 765, 768 (4th Cir. 1991). The existence
of subject matter jurisdiction is a threshold issue the court
must address before considering the merits of the case.
Jones v. Am. Postal Workers Union, 192 F.3d 417, 422
(4th Cir. 1999). “The subject matter jurisdiction of
federal courts is limited and the federal courts may exercise
only that jurisdiction which Congress has prescribed.”
Chris v. Tenet, 221 F.3d 648, 655 (4th Cir. 2000)
(citing Kokkonen v. Guardian Life Ins. Co. of Am.,
511 U.S. 375, 377 (1994)).
defendant challenges subject matter jurisdiction pursuant to
Fed.R.Civ.P. 12(b)(1), “the district court is to regard
the pleadings as mere evidence on the issue, and may consider
evidence outside the pleadings without converting the
proceeding to one for summary judgment.”
Richmond, 945 F.2d at 768. The district court should
grant the Rule 12(b)(1) motion to dismiss “only if the
material jurisdictional facts are not in dispute and the
moving party is entitled to prevail as a matter of
law.” Id. See also, Evans v. B.F. Perkins
Co., 166 F.3d 642, 647 (4th Cir. 1999).
motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) tests the
“legal sufficiency of the complaint” but
“does not resolve contests surrounding the facts, the
merits of a claim, or the applicability of defenses.”
Republican Party of N.C. v. Martin, 980 F.2d 943,
952 (4th Cir. 1992); Eastern Shore Markets, Inc. v. J.D.
Assoc. Ltd. Partnership, 213 F.3d 175, 180 (4th Cir.
2000). A complaint attacked by a Rule 12(b)(6) motion to
dismiss will survive if it contains “enough facts to
state a claim to relief that is plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007)); see also, Robinson v. American Honda
Motor Co., Inc., 551 F.3d 218, 222 (4th Cir. 2009).
“A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the