United States District Court, W.D. North Carolina, Asheville Division
MEMORANDUM AND RECOMMENDATION
CARLETON METCALF UNITED STATES MAGISTRATE JUDGE.
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.
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.
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.
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.
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
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
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
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.
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.
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.
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.
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.
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.
September 29, 2015, a photo of Plaintiff and a description of
his arrest were published in a local newspaper. Id.
Plaintiff's Other Actions and Relevant ...