ROBERT B. JONES, JR., Magistrate Judge.
This matter comes before the court on motions for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure filed by Robert Mills ("Mills") [DE-254] and James N. Keller ("Keller") [DE-259]. Plaintiff filed responses to the motions. [DE-266, -267, -268, -269, -270]. For the reasons set forth below, it is recommended that the motions for summary judgment be allowed.
On November 30, 2015, pro se Plaintiff filed a civil rights action under 42 U.S.C. §§ 1983, 1985, and 1988 alleging that officers of the Jacksonville Police Department, the Columbus County Sheriffs Department, and the North Carolina State Highway Patrol violated his civil rights by using excessive force and discriminating against him based on his race. [DE-1]. In an order filed June 26, 2017, the court consolidated the instant case with a subsequent complaint Plaintiff filed in state court that was removed to this court. [DE-129]. On September 29, 2017, Plaintiff amended his complaint to add defendants Mills and Keller. [DE-166]. Plaintiff asserts claims pursuant to 42 U.S.C. § 1983, the United States Constitution, the North Carolina Constitution, and North Carolina criminal statutes. Id. at 2.
The following facts are undisputed.
Groom obtained arrest warrants for Plaintiff at 8:00 a.m. on March 30, 2014 issued by a North Carolina Magistrate. Groom Aff. [DE-192-2] ¶ 9; see Exs. A, B, C [DE-192-4, -5, -6]. Further, Defendant Keller, a detective with the JPD, obtained an order pursuant to 18 U.S.C. § 3122 et seq. from a state Superior Court Judge authorizing the installation and monitoring of a pen register and/or trap and trace device and for the production of records and other information with respect to Plaintiff's cellular phone. [DE-260] ¶ 3; [DE-260-3]. After obtaining the warrants, Groom was informed by another JPD officer that Mrs. Evans had stated her vehicle was equipped with a GPS tracking device that had been installed in the car by the seller, Bob's Bargain Center in Jacksonville. Groom Aff. [DE-192-2] ¶ 14. Groom contacted the owner of Bob's Bargain Center, Defendant Mills, and informed Mills of the shooting and Plaintiff's subsequent use of Mrs. Evans' car to flee the scene. Id ¶ 15; Aff. of Robert Mills ("Mills Aff.") [DE-192-3] ¶ 8. Mills met with Groom at approximately noon on March 30, 2014, and informed Groom that while the vehicle was originally jointly owned by Plaintiff and Mrs. Evans, Mrs. Evans had subsequently purchased the vehicle in her name after the car had been repossessed by Mills. Groom Aff. [DE-192-2] ¶ 16; Mills Aff. [DE-192-3] ¶¶ 4-9. Groom reviewed the temporary registration receipt for the vehicle, and confirmed that Mrs. Evans was the sole owner of the vehicle. Groom Aff. [DE-192-2] ¶ 16. Subsequently, Groom asked Mills to activate the GPS tracking system, and, after having done so, Mills was able to locate the vehicle in Horry County, South Carolina. Id. ¶ 16; Mills Aff. [DE-192-3] ¶ 9. Groom relayed the vehicle's location information to the JPD Communications Division, confirming the location that had already been identified by the JPD Special Operations Division by tracking Plaintiff's cellular phone, in accordance with the order authorizing such. Groom. Aff. [DE-192-2] ¶¶ 17-18.
Thereafter, on March 30, 2014, Plaintiff was located in Horry County, South Carolina and was pursued by South Carolina law enforcement into North Carolina, where officers from the Columbus County Sheriff's Department and the North Carolina State Highway Patrol engaged in a high speed pursuit of Plaintiff. Compl. [DE-1] at 3-4; Aff. of Christopher B. Capps ("Capps Aff.") [DE-178-1] ¶ 3; Aff. of William A. Richardson ("Richardson Aff.") [DE-178-6] ¶ 3; Aff. of Jason P. Weissinger ("Weissinger Aff.") [DE-178-7] ¶ 3. As Plaintiff approached Lake Waccamaw, North Carolina, Plaintiffs car came to a complete stop in the median between the eastbound and westbound lanes of Highway 74. B534-13-05 Dashcam [DE-178-4] at 5:35;
On March 10, 2017, Plaintiff was convicted by a jury in Onslow County Superior Court of the following criminal offenses in connection with the shooting of Mrs. Evans: (1) assault with a deadly weapon with intent to kill or inflict serious injury; (2) discharging a firearm into occupied property; (3) assault by pointing a gun; (4) possession of a firearm by a felon; and (5) two counts of violation of a protective order. Ex. D [DE-192-7] at 1, 5, 9. Plaintiff was also indicted by a Columbus County grand jury for (1) assault with a firearm on a law enforcement officer and (2) fleeing/eluding arrest with a motor vehicle, [DE-239-1] at 2, and on December 14, 2017, Plaintiff entered an Alford plea to these charges, [DE-239-1] at 3-11.
There are two separate motions for summary judgment before the court: Mills filed his motion on July 2, 2018 [DE-254], and Keller filed his motion on July 9, 2018 [DE-259]. Plaintiff has responded to these motions in numerous filings. [DE-266, -267, -268, -269, -270].
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 burden of demonstrating the absence of any genuine issues of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the movant has met its burden, the nonmoving party then must affirmatively demonstrate, with specific evidence, that there exists a genuine issue of material fact requiring trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). Only disputes between the parties over facts that might affect the outcome of the case properly preclude the entry of summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). Here, Plaintiff is proceeding pro se. Pleadings drafted by a pro se litigant are held to a less stringent standard than those drafted by attorneys. See Haines v. Kerner, 404 U.S. 519, 520 (1972) (holding that writings by pro se complainants are held to "less stringent standards than formal pleadings drafted by lawyers"). The court is charged `with liberally construing a pleading filed by a pro se litigant to allow for the development of a potentially meritorious claim. See id.; Noble v. Barnett, 24 F.3d 582, 587 n.6 (4th Cir. 1994); Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978).
"[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." Anderson, 477 U.S. 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 [the non-movant's] favor." Id. at 255 (citation Omitted); see also 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.").
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 jury 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 "a reasonable jury could reach only one conclusion based on the evidence," or when "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 evidence as a whole is susceptible of more than one reasonable inference, a jury issue is created" and judgment as a matter of law should be denied. Id. at 489-90.
Although § 1983 is not a source of substantive rights, it provides a method for vindicating federal rights elsewhere conferred by the United States Constitution and federal statutes that it describes. Lambert v. Williams, 223 F.3d 257, 260 (4th Cir. 2000); see also Albright v. Oliver, 510 U.S. 266, 271 (1994). Accordingly, to demonstrate a cause of action under § 1983, a plaintiff must show that (1) the defendant was acting under color of state law in the actions complained of; and (2) the defendant deprived plaintiff of a right, privilege, or immunity secured by the Constitution or laws of the United States. Clark v. Link, 855 F.2d 156, 161 (4th Cir. 1988); see also West v. Atkins, 487 U.S. 42, 49-50 (1988).
Plaintiff asserts that both Mills and Keller violated his Fourth Amendment protection from unreasonable searches and seizes with respect to the utilization of GPS tracking and the pen register on Plaintiff's cellular phone, respectively, during the March 29-30, 2014 investigation. The Fourth Amendment to the United States Constitution provides that "[t]he right of the people to be secure . . . against unreasonable searches and seizures, shall not be violated." U.S. Const. amend. IV. The "touchstone of the Fourth Amendment is reasonableness." Florida v. Jimeno, 500 U.S. 248, 250 (1991) (citing Katz v. United States, 389 U.S. 347, 360 (1967)).
Before considering the merits of a Fourth Amendment claim, the court must first determine the threshold issue of whether Plaintiff has standing, or a legitimate expectation of privacy, in the item searched (Mrs. Evans' vehicle), which the Defendant was using without permission to avoid apprehension. Fourth Amendment rights are personal, and to challenge a search, a defendant must present evidence that he "has a legitimate expectation of privacy in the invaded place." Rakas v. Illinois, 439 U.S. 128, 143 (1978). While an individual using a vehicle with the owner's permission has a reasonable expectation of privacy in the vehicle, United States v. Rusher, 966 F.2d 868, 874 (4th Cir. 1992), an occupant of a stolen vehicle cannot claim a legitimate expectation of privacy in either the vehicle or containers found in that vehicle, United
States v. Hargrove, 647 F.2d 411, 412 (4th Cir. 1981). A non-owner driver may be presumed to have permission to use the vehicle unless there is evidence "tending to show that he was illegitimately in possession of [the vehicle]." Rusher, 966 F.2d at 874. Here, the record makes clear that Plaintiff was illegitimately in possession of Mrs. Evans' vehicle. After completing her shift at Olive Garden restaurant, Mrs. Evans was escorted to her car by a co-worker due to concerns arising from prior instances of domestic violence involving Plaintiff.
Plaintiff contends the car was "marital property" and therefore it was not stolen. Pl.'s Opp'n [DE-219] at 1-3. However, Mrs. Evans was the sole owner listed for the vehicle and refused him entry into her vehicle, and even if Plaintiff had some cognizable marital property interest in the vehicle, cases have found that an ownership interest alone is insufficient to give a defendant a reasonable expectation of privacy. See United States v. Metzger, 778 F.2d 1195, 1200 (6th Cir. 1985) ("We fail to see how defendant, absent more than an ownership interest, had a reasonable expectation of privacy in his wife's personal vehicle."). Accordingly, the court finds Plaintiff has no standing to bring a claim pursuant to the Fourth Amendment for an unconstitutional search of the car using GPS tracking where he had no reasonable expectation of privacy in the car.
Even assuming arguendo that Plaintiff had standing to bring such suit, Plaintiff has failed to show that Mills, a private citizen, was acting under color of state law thereby subjecting him to suit pursuant to § 1983. Clark, 855 F.2d at 161. Mills is not a government actor, but rather the president and co-owner of Bob's Bargain Center, the car dealership from which Mrs. Evans purchased her car, and 3B Financial, Inc., Mrs. Evans' car loan lender. "[T]he under-color-of-state-law element of § 1983 excludes from its reach merely private conduct, no matter how . . . wrongful." Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999) (quotation omitted); see Armstrong v. Medlin Motors, Inc., 5:12-CV-806-FL, 2013 WL 1912590, at *2 (E.D.N.C. Apr. 15, 2013) ("Although Plaintiff asserts that `Wile conduct complained of was engaged in under color of state law,' . . . he alleges no facts demonstrating any delegation of state authority."); Rodgers v. Waste Indus., Inc., No. 4:12-CV-294-FL, 2013 WL 4460265, at *4 (E.D.N.C. Aug. 19, 2013) (explaining that private action may be found to constitute state action "(1) when the state has coerced the private actor to commit an act that would be unconstitutional if done by the state; (2) when the state has sought to evade a clear constitutional duty through delegation to a private actor; (3) when the state has delegated a traditionally and exclusively public function to a private actor; or (4) when the state has committed an unconstitutional act in the course of enforcing a right of a private citizen.") (quoting Andrews v. Fed Home Loan Bank of Atlanta, 998 F.2d 214, 217 (4th Cir. June 28, 1993)), aff'd, 553 F. App'x 332 (4th Cir. Jan 31, 2014). Further, private citizens can act under the color of state law when they conspire with public officials or are jointly engaged with state officials in a prohibited action. Adickes v. S. H Kress & Co., 389 U.S. 144, 152 (1970). Plaintiff contends Mills acted under color of state law where he "participated in the crime venture because the police had no warrants and [Mills] should have known he was invading [Plaintiff's] privacy." Pl.'s Opp'n [DE-267] at 2. Plaintiff argues that Mills operated in bad faith when he did not require a search warrant before activating the GPS at Grooms' request upon receiving Mrs. Evans' consent. Id. Plaintiff further argues that Mrs. Evans' consent was invalid where it was not in writing. Id. at 3. Plaintiff however offers nothing beyond his bald assertions to support these arguments. To the extent Plaintiff contends otherwise or posits the existence of a conspiracy between Mills and Groom, the record shows that Mills is a private citizen who, in his capacity as the president and co-owner of Bob's Bargain Center, Inc. and 3B Financial, Inc., installed a GPS tracking device in Mrs. Evans' vehicle as a condition of sale on April 29, 2013. On March 30, 2014, Mills was contacted by Grooms, a JPD detective, who informed him of the investigation and verified that Mrs. Evans was the sole owner of the vehicle. After Grooms informed Mills that Mrs. Evans had consented to the use of the previously installed GPS to track her vehicle, Mills activated the GPS. These facts do not support a conclusion that Mills conspired with Groom to deprive Plaintiff of his constitutional right, particularly where Plaintiff did not have a reasonable expectation of privacy in a car he had stolen. See Hinkle v. City of Clarksburg, W. Va., 81 F.3d 416, 421 (4th Cir. 1996) (holding that a plaintiff "must come forward with specific circumstantial evidence that each member of the alleged conspiracy shared the same conspiratorial objective."). Therefore, Plaintiff has failed to offer evidence tending to show that Mills was acting under color of state law, and thus he is not subject to suit pursuant to § 1983. Accordingly, the court recommends that summary judgment be allowed with respect to any claims asserted against Mills.
Plaintiff contends the following issues are disputed, thereby defeating summary judgment: (1) whether the victim's name is Audrey Evans or Dora Evans; (2) whether Plaintiff hid in the bushes outside Mrs. Evans' work on March 29, 2014; (3) whether Plaintiff fired three shots into Mrs. Evans' vehicle; (4) whether a male came out of the building and Plaintiff chased him; and (5) whether Plaintiff stole the vehicle, which he contends was marital property. [D269].
The specific factual issues listed by Plaintiff are not material to the claims asserted in this civil case, where even if the disputes were resolved in Plaintiff's favor, the outcome would not change. Anderson, 477 U.S. at 248 ("[T]he substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment."). Such allegations appear to the court to be an attempt to create a factual dispute in order to defeat summary judgment. See id. at 247-48 ("[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.") (emphasis in original). Accordingly, the court finds that there are no genuine issues of material fact, and therefore disposition on summary judgment is appropriate at this juncture.
Plaintiff also asserts that Keller committed perjury in his application to the state superior court judge seeking authorization for the pen register device regarding Plaintiff's cellular phone. Am. Compl. [DE-161] at 5-7. A court order authorizing the use of a pen register or other means of tracking a phone is equivalent in this purpose to a search warrant. United States v. Giordano, 416 U.S. 505, 554 (1974) ("In this case the Government secured a court order, the equivalent for this purpose of a search warrant, for each of the two extensions of its authorization to use a pen register."). An officer "contravenes the Fourth Amendment when he procures a search warrant through the use of false statements, whereby a magistrate would not have otherwise found probable cause." Unus v. Kane, 565 F.3d 103, 124 (4th Cir. 2009) (citing Franks v. Delaware, 438 U.S. 154, 155-56 (1978)). The party challenging the warrant must make a "substantial preliminary showing that the false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit." Franks, 438 U.S. at 155-56.
Plaintiff argues the application contained certain details that were untrue, such as inaccurately stating the victim's first name, how many shots were fired, where Plaintiff was hiding before he shot his wife, and whether he chased a man after shooting his wife, thereby invalidating the resulting order. Pl.'s Opp'n [DE-268]. Additionally, Plaintiff contends Keller knowingly lied in the application in contravention of the Fourth Amendment. Id. at 2-3. Aside from Plaintiff's bald statements, the only evidence proffered by Plaintiff to support these allegations is two pages
For the foregoing reasons, it is recommended that Mills' motion for summary judgment [DE-254] and Keller's motion for summary judgment [DE-259] be ALLOWED.
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on Plaintiff. You shall have until
