Charles Nance, Andrea Nance, Carolina Shores Healthcare, PLLC v. Ingram
| Decision Date | 29 September 2015 |
| Docket Number | No. 7:14-CV-9-FL,7:14-CV-9-FL |
| Court | U.S. District Court — Eastern District of North Carolina |
| Parties | CHARLES NANCE, ANDREA NANCE, CAROLINA SHORES HEALTHCARE, PLLC, and all those similarly situated, Plaintiffs, v. JOHN INGRAM, in his individual and official capacity as Sheriff of Brunswick County, and WESTERN SURETY COMPANY, Defendants. |
This matter is before the court on defendants' motion for summary judgment, (DE 24), made pursuant to Federal Rule of Civil Procedure 56. Pursuant to 28 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure 72(b), United States Magistrate Judge Robert B. Jones, Jr., entered a memorandum and recommendation ("M&R"), (DE 36), wherein it is recommended that defendants' motion be granted. Plaintiffs timely filed objections to the M&R, and defendants have responded. In this posture, the issues raised are ripe for ruling. For the reasons stated below, the court adopts the recommendation of the magistrate judge as its own and grants defendants' motion for summary judgment.
On January 13, 2014, plaintiffs initiated this action in the Brunswick County, North Carolina,Superior Court, stating a claim under 42 U.S.C. § 1983 for alleged violations of the Hatch Act, 5 U.S.C. § 1501 et seq.; claims according to their right to freedom of speech, due process, and equal protection under the First, Fifth, and Fourteenth Amendments; and state law claims of defamation and slander per se, tortious interference with prospective economic advantage, intentional infliction of emotional distress, and negligent infliction of emotional distress for which plaintiffs sought compensatory and punitive damages. Plaintiffs since have conceded some claims in response to defendants' summary judgment motion. (Pls.' Resp., DE 32 at 8 9). Plaintiffs have not pursued claims or sought class certification on behalf of those plaintiffs named "All Those Similarly Situated." (Id. at 8 20). Also, plaintiffs have abandoned all claims by plaintiff Charles Nance, and accordingly this order addresses the remaining claims of plaintiff Andrea Nance and plaintiff Carolina Shores Healthcare, PLLC ("Carolina Shores") (collectively "plaintiffs"). Plaintiffs allege defendant John Ingram, the Sheriff of Brunswick County, North Carolina, violated plaintiff Nance's civil rights and interfered with plaintiff Nance's healthcare business, plaintiff Carolina Shores, after plaintiff Nance supported a candidate opposing defendant Ingram in the primary election for Brunswick County Sheriff. (Compl., DE 1-1).
Defendants removed this action to this court pursuant to 28 U.S.C. § 1441. (DE 1). On December 19, 2014, defendants moved for summary judgment based on arguments that plaintiffs failed to produce sufficient evidence to meet all elements of their claims and that defendants enjoyed qualified immunity. (DE 24). Plaintiffs responded and defendants replied to those arguments, (DE 32, 35), and M&R was entered on August 7, 2015, (DE 36). The magistrate judge recommends defendants' motion for summary judgment be granted because plaintiffs failed to show a § 1983 violation, especially where some facts were inadmissible, and related state law claims should fail forrelying on the same facts. On August 21, 2015, plaintiffs filed objections, and on September 3, 2015, defendants responded.
The court herein adopts by reference the facts as recited in the magistrate judge's M&R: The Nances are a married couple and have lived in Brunswick County, North Carolina for approximately 16 years. Charles Nance has been an officer with the North Carolina Highway Patrol for 20 years, and Andrea Nance has been a nurse practitioner for ten years, operating Carolina Shores since March 2005. In 2010, the Nances made a financial contribution to the campaign of Tim Daniels who was running against Sheriff Ingram in the 2010 Republican primary for Brunswick County sheriff. Sheriff Ingram had been initially appointed in May 2008 and ran as the incumbent in 2010. Daniels lost the primary, and Sheriff Ingram was elected in November 2010. (Compl., DE 1-1 ¶¶ 10 13, 15 16, 18; Defs.' Br., DE 25 at 2; Ingram Aff., DE 26 ¶ 1).
In April 2011, Ashli Daniels (at that time the wife of Tim Daniels) was arrested for forging prescriptions. (Basily Decl., DE 33 ¶¶ 6 7). Daniels had been a patient of Andrea Nance at Carolina Shores. (Id. ¶ 13). On April 19, 2011, Daniels spoke with Detective Israel West and Agent Joe Cherry of the Brunswick County Sheriff's Office ("BCSO") and Agent Kelly Eason of the North Carolina State Bureau of Investigation ("SBI"). (Id. ¶ 5). It is disputed whether Detective West initially asked Daniels to cooperate in an investigation of Nance (i.e., request a prescription or pain medication from Nance) in exchange for assistance on Daniels' charges, (id. ¶¶ 9 12), or whether when asked if there was anyone Daniels could get pills from, Daniels volunteered that she had received pills from Nance in the past when she was not a patient of Nance, (West Dep., DE 24-5 at 46 47). In any event, Daniels initially agreed to cooperate, but then later elected not to do so.(Daniels Decl., DE 33 ¶¶ 13, 20; West Dep., DE 24-5 at 51).
In March or April of 2011, Brunswick County Assistant Coroner David Crocker, who is also a part-time Deputy Sheriff in Brunswick County, initiated a meeting with Detective West and Agent Cherry after Crocker found six deaths in a little more than a year with a connection to Nance's prescriptions and became concerned. (Crocker Aff., DE 27 ¶¶ 4 6). Around this same time, Special Agent Mac Warner of the SBI received an inquiry from a coroner or sheriff's detective regarding Andrea Nance's prescription practices following a traffic accident involving multiple deaths in Brunswick County where the driver was in possession of drugs prescribed by Nance. (Warner Aff., DE 28 ¶ 7). Agent Warner requested the SBI's Diversion Unit review a statewide database for reporting controlled substances to see if there was anything out of the ordinary regarding Nance's prescribing practices and was informed nothing out of the ordinary was discovered. (Id. ¶ 8). On April 27, 2011, Detective West, Agent Cherry, and Crocker met with David Allen, an investigator from the North Carolina Board of Nursing (the "Nursing Board"), regarding Andrea Nance. (Crocker Aff. ¶ 6). Crocker provided the investigator with a copy of a log prepared by Crocker containing calls he responded to from January 2008 to February 2011, noting four deaths (not including the deaths from the traffic accident) between late 2009 and early 2011 where the victims were using prescription pain medications obtained from Nance at Carolina Shores. (Id. ¶ 5 6).
In May 2011, the Nursing Board informed Andrea Nance that a pharmacy had reported Nance was writing excessive prescriptions for methadone. An investigator from the Nursing Board, Donna Mooney, met with Nance and reviewed records from Carolina Shores. Nance told Mooney that she believed the complaint to the Nursing Board was made by Sheriff Ingram or his agent; however, Mooney's report indicates Nance's case was initiated in response to a report from a doctor in Supply,Brunswick County, North Carolina. The doctor reported inappropriate prescribing by Nance, which he discovered after he began treating one of Nance's former patients. Mooney recommended Nance's licence be suspended for one year. In August 2012, Nance attended a hearing with the Nursing Board, at the conclusion of which the Nursing Board deferred suspension of Nance's license for a period of one year conditioned upon compliance with a series of requirements. (Compl., DE 1-1 ¶¶ 35 36, 41, 43, 46; Defs' Mot., DE 24-1 at 10, 13; Defs.' Br., DE 25 at 2).
The events that followed Sheriff Ingram's election, including the circumstances surrounding the Nursing Board's investigation, are for the most part in dispute. According to Plaintiffs, Sheriff Ingram launched an investigation through the BCSO into Andrea Nance's prescribing practices at Carolina Shores and told BCSO employees to stop utilizing Carolina Shores for healthcare services. (Nance Decl., DE 34 ¶¶ 4, 8). According to Defendants, neither Sheriff Ingram nor the BCSO investigated Nance, filed a complaint with the Nursing Board, or was aware of the Nursing Board's investigation of Nance prior to receiving the complaint in this matter. (Ingram Aff., DE 26 ¶¶ 8, 12, 17).
The district court reviews de novo those portions of a magistrate judge's M&R to which specific objections are filed. 28 U.S.C. § 636(b). Absent a specific and timely filed objection, the court reviews only for "clear error," and need not give any explanation for adopting the M&R. Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005); Camby v. Davis, 718 F.2d 198, 200 (4th Cir.1983). Upon careful review of the record, "the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28U.S.C. § 636(b)(1).
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 issue 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. Ltd. 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).
"[A]t the summary judgment stage the [court's] function is not...
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