LOUISE W. FLANAGAN, District Judge.
This matter is before the court on plaintiff's motion for summary judgment (DE 63), defendant's motion for summary judgment (DE 61), and defendant's motion to strike (DE 71). The issues raised have been fully briefed and are ripe for adjudication. For the following reasons, this court denies plaintiff's motion, denies in part and grants in part defendant's motion for summary judgment, and denies defendant's motion to strike.
On November 10, 2014, plaintiff filed this civil rights action,
On December 11, 2014, former defendant City of Whiteville filed a motion to dismiss. (DE 11). On March 5, 2015, t he court granted former defendant City of Whiteville's motion to dismiss, dismissing the case in its entirety. (DE 16, 17). The court held, in relevant part, that the alleged traffic stop is "so
Plaintiff appealed the court's March 5, 2015, ruling, and the United States Court of Appeals for the Fourth Circuit affirmed in part, vacated in part, and remanded the case by unpublished per curiam opinion, affirming the court's dismissal of plaintiff's claim against former defendant City of Whiteville but holding that "[t]he temporary detention of an individual during a traffic stop, even if only for a limited time or purpose, constitutes a Fourth Amendment seizure," thereby reinstating plaintiff's § 1983 and pendant state law claims against defendant. (DE 22 at 3; DE 23).
On February 16, 2017, plaintiff filed the instant motion for summary judgment. (DE 63). In support of his motion, plaintiff filed defendants' responses to plaintiff's first set of interrogatories and request for production of documents (DE 63-2) and attachments to defendants' response to discovery requests (DE 63-3). On March 13, 2017, defendant filed a response in opposition to plaintiff's motion for summary judgment. In support of his response, defendant filed an amended declaration ("Rosier Amend. Decl.") (DE 64-1) and record on appeal in case no. 10-CVD-152,
In the mean time, on February 15, 2017, defendant filed his instantmotion for summary judgment. (DE 61). In support of his motion, defendant filed a declaration ("Rosier Decl.") (DE 61-1); Whiteville Police Department Complaint Report (DE 61-2); Letter Re: Departmental Complaint (DE 61-3); Letter to Investigator Kelley and attached documents (DE 61-4); Probationary Certification (DE 61-5); and General Certification (DE 61-6).
On April 20, 2017, plaintiff filed a response in opposition to defendant's motion for summary judgment. (DE 68). In support of his response, plaintiff filed a declaration. (DE 68-1). On May 4, 2017, defendant filed a reply to plaintiff's response, challenging in part the legal sufficiency of plaintiff's filed declaration, and in support of his motion, filed an affidavit declaration of Sally Mann (DE 69-1) and affidavit declaration of Jonathan Medford (DE 69-2). On May 16, 2017, plaintiff filed a sur-reply, entitled "plaintiff's reply response to Rosier's reply," and in support of his motion, filed a second declaration ("Norton Decl.") (DE 70-1), declaration of Connie Robinson ("Robinson Decl.") (DE 70-2), and emails (DE 70-3).
On May 25, 2017, defendant filed a motion to strike plaintiff's sur-reply (DE 71), and on June 5, 2017, plaintiff filed his response to defendant's motion to strike (DE 72). This matter was reassigned to the undersigned district judge on July 28, 2017.
Except as otherwise noted below, the undisputed facts are as follows.
Plaintiff's complaint relates to a traffic stop allegedly conducted by defendant of plaintiff's vehicle on September 4, 2014. Defendant is the Administrative Chief of Police for Whiteville, who at all relevant times, was not certified as a law enforcement officer in the state of North Carolina. (Rosier Decl.¶¶ 19-20; DE 61-5; DE 61-6; Norton Decl. ¶¶ 12, 17, 19). Defendant owns a condominium located in the Myrtle Beach area. (Rosier Decl. ¶ 13).
According to plaintiff, around 5:45 p.m. on the afternoon of September 4, 2014, defendant Rosier in a purple unmarked car followed plaintiff's car from the City of Whiteville towards Highway #9 in Loris, South Carolina, near North Myrtle Beach, when defendant Rosier turned on blue lights and pulled plaintiff over for an unlawful traffic stop. (
Defendant asserts, by contrast, that he was present and working at the Whiteville Police Department on the afternoon of September 4, 2014 until he left to attend a rotary club meeting in Whiteville in the late afternoon or early evening,
Following the alleged stop, plaintiff asserts that he went to the police department in Whiteville and confirmed the car that stopped him belonged to defendant and filed a complaint against defendant at the Whiteville police department. (Norton Decl. ¶¶ 14-16). The North Carolina Department of Justice, Training and Standards Division notified defendant of the complaint filed by plaintiff. (Rosier Amen. Decl. ¶ 2; DE 61-2). Defendant was contacted by Training and Standards Investigator Judy Kelly and requested to provide information to the division regarding his whereabouts on the date and time period of the alleged traffic stop, which defendant did, including letters from two witnesses, Sally Mann and Jonathan Medford, attesting that defendant was at a rotary club meeting starting at 6:00 p.m, and a rotary club attendance sheet indicating defendant was present. (Rosier Decl.¶¶ 11-12; DE 61-2; DE 61-4).
Plaintiff asserts that because defendant was not certified as a law enforcement officer in the state of North Carolina, defendant has impersonated a sworn officer multiple times. (Norton Decl. ¶¶ 10, 19). Defendant asserts that when he was initially hired in March 2014, he believed his education, training, experience, and certification as a law enforcement officer in the state of Maryland would allow him to be certified as a law enforcement officer in the state of North Carolina. (Rosier Decl. ¶ 3). Defendant then discovered he had to complete a state certified Basic Law Enforcement Training ("BLET") program, met with District Attorney Jonathan David for education and instruction on the proper exercise of duties, and thereafter complied with the applicable requirements and restrictions until he was certified, acting as Administrative Chief of Police during this time. (
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."
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."
"[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."
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."
Before reaching the merits of the case, the court will first address defendant's motion to strike plaintiff's sur-reply. Defendant filed motion for summary judgment, plaintiff responded in opposition including a personal declaration, and defendant submitted a reply, in part challenging the legal admissibility of the previously attached personal declaration of plaintiff. Plaintiff then submitted a sur-reply, comprising a second response in opposition and attaching another declaration by plaintiff and an additional declaration by Connie Robinson. Defendant moves to strike plaintiff's sur-reply, including attached declarations, arguing that plaintiff violated Local Rule 7.1 when he submitted the sur-reply without the court's permission.
Local Rule 7.1 discourages submission of replies and makes no provision for sur-replies. Courts generally allow a party to file a sur-reply "only when fairness dictates based on new arguments raised in the previous reply."
Although plaintiff did not ask leave of the court to file his sur-reply in violation of the local rules, in consideration of plaintiff's pro se status and defendant's challenge to admissibility of plaintiff's declaration, the court will consider the sur-reply and attached declarations in the court's decision.
Defendant argues that if the court does not strike plaintiff's sur-reply, the court "should allow [defendant] the opportunity to respond to the new issues raised therein." (DE 71-1 at 3). The court declines defendant's request to allow further response to the new issues raised in plaintiff's sur-reply, because plaintiff's sur-reply appears to restate previous arguments set forth by plaintiff and appears to have been submitted in an effort to address failures to meet plaintiff's burden of proof as pointed out by defendant in defendant's reply.
Plaintiff has failed to meet his burden of informing this court of the basis for his motion and identifying those portions of the evidence and record that he believes demonstrate there is no genuine issue of material fact. For example, plaintiff has failed to point to admissible evidence that demonstrates the essential elements of his claims. Rather, plaintiff relies on his own bare assertions and inapplicable or inconclusive answers from defendant to plaintiff's discovery inquiries. In sum, plaintiff has failed to show there is no genuine issue of material fact and that he is entitled to judgment as a matter of law. Consequently, plaintiff's motion for summary judgment must be DENIED.
The temporary detention of an individual during a traffic stop, even if only for a limited time or purpose, constitutes a Fourth Amendment seizure.
Defendant argues that "[a]ll probative evidence proffered in this case, including Rosier's own valid declarations, the Training and Standards Investigation, and the Declarations of Sally Mann and Jonathan Medford, support Rosier's contention that he was attending the meeting and could not have initiated a traffic stop in Horry County, South Carolina as alleged." (DE 69 at 3). However, on summary judgment, the court must accept as true plaintiff's first-hand account of events that defendant pulled plaintiff over for a traffic stop on September 4, 2014, around 5:45 p.m. and that plaintiff was not at that time violating any South Carolina laws that would have justified such a stop and that the stop lasted at most 6 minutes. If a fact-finder determines that defendant pulled plaintiff over for an unlawful traffic stop, without more, plaintiff will have established a technical violation of the Fourth Amendment.
However, even if true, the stop was not accompanied by actual injury. Consequently, plaintiff is entitled to, at most, an award of nominal damages for the violation.
Therefore, defendant is not entitled to summary judgment regarding plaintiff's claim against defendant for violation of his rights under the Fourth Amendment to the United States Constitution.
North Carolina Constitution, Article I, Section 19 states:
In
Here, plaintiff has alleged the intentional tort claim for false imprisonment under South Carolina common law, which serves to protect the same constitutional rights to be free from improper restraint plaintiff seeks to vindicate with his alternative North Carolina direct constitutional claim. Thus, this claim provides him "the possibility of relief under the circumstances" and "opportunity to enter the courthouse doors and present his claim."
In South Carolina, "[t]he essence of the tort of false imprisonment consists of depriving a person of his liberty without lawful justification."
Again, on summary judgment, the court must accept as true plaintiff's version of events that defendant pulled him over for a traffic stop on September 4, 2014 around 5:45 p.m. and that plaintiff was not at that time violating any South Carolina laws that would have justified such a stop. Therefore, defendant's motion for summary judgment regarding plaintiff's claim against defendant for violation of his rights under South Carolina common law false imprisonment is DENIED.
For the foregoing reasons, plaintiff's motion for summary judgment (DE 63) is DENIED, defendant's motion for summary judgment (DE 61) is DENIED IN PART and GRANTED IN PART, and defendant's motion to strike (DE 71) is DENIED. The parties are DIRECTED to confer and file within
SO ORDERED.