Hogan v. Cherokee Cnty.

• Decision Date: 12 February 2021
• Docket Number: CIVIL CASE NO. 1:18-cv-00096-MR-WCM
• Citation: 519 F.Supp.3d 263
• Court: U.S. District Court — Western District of North Carolina
• Parties: Brian HOGAN, et al., Plaintiffs, v. CHEROKEE COUNTY, et al., Defendants.

519 F.Supp.3d 263

Brian HOGAN, et al., Plaintiffs,

v.CHEROKEE COUNTY, et al., Defendants.

CIVIL CASE NO. 1:18-cv-00096-MR-WCM

United States District Court, W.D. North Carolina, Asheville Division.

Signed February 12, 2021

D. Brandon Christian, Ncleag, PLLC, Monroe, NC, David A. Wijewickrama, Brown, Taylor & Wijewickrama, Melissa Ann Jackson, Melissa Jackson Attorney at Law, Waynesville, NC, Ronald L. Moore, Asheville, NC, for Plaintiffs.

Sean F. Perrin, Womble Bond Dickinson (US) LLP, Charlotte, NC, for Defendant Cherokee County.

Patrick Houghton Flanagan, Virginia Marie Wooten, Cranfill, Sumner & Hartzog, L.L.P., Sean F. Perrin, Womble Bond Dickinson (US) LLP, Charlotte, NC, for Defendant Scott Lindsay.

John L. Kubis, Jr., Teague Campbell Dennis & Gorham, LLP, Raleigh, NC, Sean F. Perrin, Womble Bond Dickinson (US) LLP, Charlotte, NC, for Defendant Cindy Palmer.

MEMORANDUM OF DECISION AND ORDER

Martin Reidinger, Chief United States District Judge THIS MATTER is before the Court on "Cherokee County, Scott Lindsay in His Official Capacity, and Cindy Palmer in Her Official and Individual Capacities’ Motion for Summary Judgment" [Doc. 56]; "Plaintiffs’ Motion for Partial Summary Judgment on the Issue of Liability" [Doc. 60], [Doc. 61 (sealed)]; and "Defendant Scott Lindsay's Motion for Summary Judgment" [Doc. 62].

I. PROCEDURAL BACKGROUND

On March 14, 2018, Plaintiff Brian Hogan ("Plaintiff Hogan" or "Hogan") filed this action in the Superior Court of Cherokee County, North Carolina, on behalf of himself and his minor daughter, H.H., (the "Plaintiffs") against Defendant Cherokee County (the "County"); Defendant Scott Lindsay ("Defendant Lindsay"), in both his individual capacity and his official capacity as the Cherokee County Attorney and attorney for Cherokee County Department of Social Services ("DSS"); and Cindy Palmer ("Defendant Palmer"), in both her individual capacity and her official capacity director of Cherokee County DSS. [Doc. 1-1 at 4] (collectively "the Defendants").¹ On April 13, 2018, the Defendants removed the case to this Court pursuant to 28 U.S.C. § 1444(b). [Doc. 1].

This action arises out of the Defendants’ use of an out-of-court agreement that resulted in the removal of Plaintiff H.H. from the custody of her father, Plaintiff Brian Hogan, without a court order. [Doc. 1-1 at 5]. Following a ruling on a partial motion to dismiss filed by the Defendants Cherokee County and Palmer and Lindsay in their official capacities [Doc. 22], the following claims remain in this lawsuit:

• Claims of negligence and gross negligence against Defendants Lindsay and Palmer in their official and individual capacities (Counts I, II, and III);

• Claims of negligent misrepresentation against Defendants Lindsay and Palmer in their official and individual capacities (Count IV);

• Claims of negligent and grossly negligent hiring and retention against the County (Counts V and VI);

• Claims of negligent and grossly negligent supervision against Defendant Palmer in her official and individual capacities (Counts VII and VIII);

• Claims of actual fraud against Defendants Lindsay and Palmer in their official and individual capacities (Count IX); • Claims of constructive fraud against Defendants Lindsay and Palmer in their individual capacities (Count X);

• Claims for deprivation of rights under 42 U.S.C. § 1983 against Defendants Lindsay and Palmer in their official and individual capacities (Count XI);

• Claims for deprivation of rights under 42 U.S.C. § 1983 ( Monell² liability) against the County (Count XII);

• Claims for violation of the Equal Protection Clause under 42 U.S.C. § 1983 against Defendants Lindsay and Palmer in their individual capacities (Count XIII);

• State law claims against the County for multiple actions of the County's employees under a theory of respondeat superior (Count XIV);

• Claims for civil obstruction of justice against all the Defendants (Count XV);

• Claims for violations of the North Carolina Constitution against Defendants Palmer and Lindsay in their individual capacities (Count XVI); and

• Claims for punitive damages against Defendants Palmer and Lindsay in their individual capacities (Count XVII).

[Doc. 1-1 at 24-61; Doc. 22 at 7-8].

The Defendants now move for summary judgment with respect to a number of these claims. [Doc. 56, Doc. 62]. The Plaintiffs, in turn, move for summary judgment on their § 1983 claims for due process violations against the Defendants. [Doc. 61 (sealed)]. These motions have been fully briefed and are now ripe for review.

II. STANDARD OF REVIEW

Summary judgment is appropriate if the pleadings, depositions, answers, admissions, stipulations, affidavits, and other materials on the record show "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) &(c). "As the Supreme Court has observed, ‘this standard provides that the 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.’ " Bouchat v. Baltimore Ravens Football Club, Inc., 346 F.3d 514, 519 (4th Cir. 2003) (emphasis in original) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ).

"Facts are material when they might affect the outcome of the case, and a genuine issue exists when the evidence would allow a reasonable jury to return a verdict for the nonmoving party." Ballengee v. CBS Broad., Inc., 968 F.3d 344, 349 (4th Cir. 2020) (quoting News & Observer Publ'g Co. v. Raleigh-Durham Airport Auth., 597 F.3d 570, 576 (4th Cir. 2010) ). In ruling on a motion for summary judgment, the Court does not make credibility determinations or weigh the evidence. Guessous v. Fairview Prop. Invs., LLC, 828 F.3d 208, 216 (4th Cir. 2016). "Regardless of whether he may ultimately be responsible for proof and persuasion, the party seeking summary judgment bears an initial burden of demonstrating the absence of a genuine issue of material fact." Bouchat, 346 F.3d at 522. If this showing is made, the burden then shifts to the nonmoving party who must convince the Court that a triable issue exists. Id.

Where, as here, the parties have filed cross-motions for summary judgment on some of the issues, the Court must consider "each motion separately on its own merits to determine whether either of the parties deserves judgment as a matter of law." Rossignol v. Voorhaar, 316 F.3d 516, 523 (4th Cir. 2003) (internal quotations and citation omitted). In considering the facts on a motion for summary judgment, the Court will view the pleadings and material presented in the light most favorable to the nonmoving party and must draw all reasonable inferences in the nonmoving party's favor. Smith v. Collins, 964 F.3d 266, 274 (4th Cir. 2020). In doing so, however, the Court may only consider admissible evidence. Fed. R. Civ. P. 56 ; Evans v. Techs Applications Serv. Co., 80 F.3d 954, 962 (4th Cir. 1996).

III. FACTUAL BACKGROUND

This factual recitation is presented for the purposes of addressing the Defendants’ Motions for Summary Judgment. Accordingly, the facts are presented in the light most favorable to the Plaintiffs.

Cherokee County is a political subdivision of North Carolina. [Doc. 1-1 at 6; Doc. 23 at 2]. At all times relevant to this action, Defendant Palmer was the Cherokee County DSS director, and Defendant Lindsay was the Cherokee County Attorney as well as attorney for Cherokee County DSS. [Doc. 1-1 at 7; Doc. 23 at 3; Doc. 59-3 at 6, 28]. At all times relevant to this action, Plaintiff Brian Hogan, his wife Amanda Edmondson ("Edmondson"), and Hogan's minor daughter H.H. were residents of Cherokee County. [Brian Hogan Dep., Doc. 59-3 at 13, 15].

On September 14, 2015, after receiving a report of neglect regarding H.H., Cherokee County DSS filed a juvenile petition alleging that H.H. was abused, neglected, and dependent. [Doc. 1-1 at 11; Doc. 59 at 3].³ After an investigation, North Carolina District Judge Tessa Sellers entered an order on April 1, 2016, placing H.H. back in Plaintiff Hogan's custody (the "2016 Custody Order"). [Doc. 8-3 at 3-4 (sealed document)].

In the fall of 2016, Edmondson had a heart attack and was hospitalized in Asheville, North Carolina. [Doc. 59-3 at 13; Doc. 66-1 at 2]. Plaintiff Hogan arranged to leave H.H. with neighbors because he could not care for H.H. while he was in Asheville with Edmondson. [Doc. 59-3 at 6, 13]. While H.H. was staying with the neighbors, her school made a report to DSS about a concern with H.H.’s care. [Brian Hogan Dep., Doc. 66-1 (sealed document)]. In November 2016, DSS worker Laurel Smith called Plaintiff Hogan, who was in Asheville, and told him that he had 24 hours to get back to Murphy to "sign papers to give [H.H.] to someone in [his] family or they were going to give her to the State and [he] would never see her again." [Id. at 13, 15]. Plaintiff Hogan asked his father, Warren Hogan ("Warren"), if he "would keep [H.H.] until [Edmondson] could get out of the hospital." [Id. at 4].

Plaintiff Hogan returned to Murphy and met with Laurel Smith, Warren, David Hughes, and a few other people whom he did not know. [Doc. 59-3 at 10-11]. Neither Defendant Palmer nor Defendant Lindsay was present for this meeting. [Doc. 59-3 at 26, 28]. Plaintiff Hogan was handed a Custody and Visitation Agreement ("CVA") and was told that if he did not sign it, H.H. would be "giv[en] to the State and [he would] never see her." [Id. at 15]. Hogan was not represented by counsel at this meeting and had not contacted an attorney about the situation. [Id. ]. He signed the CVA, which purported to give custody to Warren, and returned to Asheville to be with Edmondson for the next three and a half months. [Id. at 16].

Warren would not allow Plaintiff Hogan to talk to H.H. while H.H. was in his "custody." [Id. at 19]. Hogan had some concerns...