United States District Court, E.D. North Carolina, Western Division
W. FLANAGAN UNITED STATES DISTRICT JUDGE.
matter is before the court upon defendant's motion for
summary judgment (DE 34). Plaintiff was notified of the right
to respond and has not responded. In this posture, the issues
raised are ripe for ruling. For the following reasons, the
motion is granted.
OF THE CASE
commenced this action by motion to proceed in forma pauperis
on October 2, 2017, asserting that defendant, as a police
officer with the Raleigh Police Department, allegedly
arrested her and detained her without probable cause on
December 27, 2014. The court granted plaintiff's motion
to proceed in forma pauperis, on February 27, 2018. Upon
frivolity review pursuant to 28 U.S.C. § 1915(e)(2)(B),
the court allowed plaintiff to proceed with claims against
defendant in his individual capacity pursuant to 42 U.S.C.
§ 1983, on the basis of claims arising under the Fourth
and Fourteenth Amendment to the United States Constitution,
and the court dismissed claims against defendant in his
filed the instant motion for summary judgment on July 1,
2019, asserting that he was not on duty at the time of the
alleged incident. Defendant relies upon a statement of
material facts, as well as the following exhibits: 1) his
declaration; 2) time and payroll records; 3) declaration of
Denise Pickover (“Pickover”), payroll and
accounts payable manager for the City of Raleigh; and 4)
defendant's interrogatory responses. The court notified
plaintiff on July 2, 2019, of the right to respond to the
instant motion and consequences of failure to respond.
OF UNDISPUTED FACTS
was employed by the City of Raleigh Police Department
(“RPD”) from April 16, 2012 until June 26, 2016.
(Def's Stmt. of Material Facts ¶ 1). Defendant was
on duty on December 24 and December 25, 2014. (Id.
¶ 6). Defendant was not on duty on December 27, 2014.
(Id. ¶ 7). Rather, on December 26, 2014,
defendant traveled to Gastonia, North Carolina, where he
stayed overnight with family. (Id. ¶ 8). Then,
defendant traveled to Simpsonville, South Carolina, where he
stayed overnight on December 27, 2014. (Id.).
Accordingly, defendant had no contact or interaction with
plaintiff on the date of the alleged unlawful arrest of
plaintiff on December 27, 2014. (Id. ¶¶
17-18). Defendant has no knowledge regarding whether any RPD
officer interacted with plaintiff in any way on December 27,
2014. (Id. ¶ 16).
Standard of Review
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.”
Federal Rule of Civil Procedure 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,
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).
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.”).
“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 ...