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Xelup v. White

United States District Court, W.D. North Carolina, Asheville Division

October 4, 2019

TUSHKAHUMOC XELUP, Plaintiff,
v.
ROBERT TODD WHITE, MARK GERBINO, CHEROKEE COUNTY SHERIFF DEPARTMENT, DERRICK PALMER, CHEROKEE COUNTY, Defendants.

          MEMORANDUM AND RECOMMENDATION

          W. CARLETON METCALF UNITED STATES MAGISTRATE JUDGE.

         This matter is before the Court on Defendants' Motion to Dismiss (Doc. 5), which has been referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B). Having carefully considered the Motion, the parties' filings, and applicable authorities, the undersigned respectfully recommends that the Motion be granted.

         I. Factual Background

         Viewing the allegations in the light most favorable to Plaintiff, the Complaint alleges as follows:

Plaintiff Tushkahumoc Xelup and his spouse, Allison DeVante (“DeVante”) have four children. In early September 2015, they lived in Cherokee County but were planning to relocate to Rhode Island. At some point, they travelled to Rhode Island, returning home on September 6, 2015. Pl.'s Compl. (Doc. 1) at 8.

         Three days later, on September 9, 2015, DeVante left Plaintiff and their children at home in Cherokee County. Though DeVante claimed to be going to visit her sister in Asheville before the move to Rhode Island, Plaintiff alleges DeVante intended to abandon the family. Id.

         On September 15, 2019, while Plaintiff was at home packing for the move to Rhode Island, Robert Todd White (“White”) and Mark Gerbino (“Gerbino”), who Plaintiff appears to allege were law enforcement officers associated with the Cherokee County Sheriff's Office, came to Plaintiff's home. White informed Plaintiff that he had a temporary restraining order that required White to take custody of three of Plaintiff's children, ages 16, 14, and 4. Only two of the children were at home at the time; Plaintiff's 4-year-old daughter was visiting friends in Georgia with Plaintiff's eldest daughter, who was 18 years of age. Id. at 8-9. Plaintiff protested but did release the two children after being threatened with arrest. Id. at 9.

         Throughout that evening, White repeatedly called Plaintiff and instructed him to travel to Georgia and return with his 4-year-old daughter, to which Plaintiff responded by promising to deliver the child to her mother when the child returned. Id.

         Over the next several days, White continued to call Plaintiff's phone and threaten Plaintiff with arrest if Plaintiff did not bring the child back from Georgia. In addition, White repeatedly came to Plaintiff's house, “beating on the door, parking for long periods of time in the driveway and shinning [sic] the light at the house.” Id.

         On September 16, 2015, Plaintiff's 18-year-old daughter left Georgia with other family members (apparently including Plaintiff's 4-year-old daughter) and travelled to Tennessee. Id.

         On September 19, 2015, Plaintiff contacted his 18-year-old daughter and instructed her to bring his 4-year-old daughter home so that the child could be delivered to Plaintiff's wife in Asheville. Id.

         Plaintiff's 18-year-old and 4-year-old arrived home the next day, September 20, 2015, at which point Plaintiff drove his 4-year-old daughter to a police substation in Asheville near where DeVante was located. Id. at 10. Plaintiff informed the officers in Asheville that he was there to deliver the child and also advised that DeVante “had been declared mentally incompetent by the Veterans Administration.” Id. An officer responded by telling Plaintiff that the officers could not assist in delivering a child to an incompetent person and instructed Plaintiff to return to Cherokee County and to make “them” (presumably meaning Cherokee County authorities) aware of that information. Id.

         Plaintiff returned home with his daughter. Shortly thereafter, White came to Plaintiff's home and “told [Plaintiff] that he was going to jail” for transporting his daughter between states. Id.

         Plaintiff questioned White's authority to arrest him and White responded that he was “making the arrest on [his] own authority, because [he had] proof.” Id. Plaintiff cautioned White against this action and warned him that a “false arrest would bring repercussions.” Id. at 11. Nonetheless, Plaintiff was handcuffed by Gerbino and driven to the police station where he was fingerprinted and “given a $15, 000.00 bond for crossing state lines and kidnapping.” Id.

         On Monday, September 21, 2015, Plaintiff suffered severe medical issues while in custody. Id. Plaintiff alleges he was recovering from open heart surgery, began having kidney spasms and chest pains, and was rushed to the hospital where he was “forced to ingest heart medicine, blood pressure medicine and other unknown substances in violation of cultural and traditional rights.” Id.

         On September 25, 2015, Plaintiff made an appearance in court. A hearing was held, at which Plaintiff's 18-year-old daughter testified. Following her testimony, “the judge found White's proof of interstate kidnapping to be false and without merit … and dismissed all charges, including the [temporary restraining order]” and Plaintiff was released. Id.

         On September 29, 2015, a photo of Plaintiff and a description of his arrest were published in a local newspaper. Id. at 12.[1]

         II. Plaintiff's Other Actions and Relevant ...


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