LaBreche v. Chambers

Decision Date16 February 2022
Docket Number1:21-cv-271-MOC-WCM
CourtU.S. District Court — Western District of North Carolina
PartiesANDREW LABRECHE, Plaintiff, v. DAVID CHAMBERS, et al., Defendants.
ORDER

Max O Cogburn, Jr., United States District Judge

THIS MATTER comes before the Court on the following Motions to Dismiss: a Motion to Dismiss filed by Defendant David Chambers, (Doc. No.7); a Motion to Dismiss filed by Defendants Wilmer Chavez-Perez, Chris Francis, Tyler Greene Jamie Mode, and the Rutherford County's Sheriff's Office, (Doc. No. 9); a Motion to Dismiss filed by Defendant Chad Murray, (Doc. No. 14); and a Motion to Dismiss for Failure to State a Claim and for Lack of Jurisdiction, (Doc No. 19), filed by Defendants Ted Bell, Tommy Davis, Robert Martelle, Michelle McEntire, and Ellen Shelley.

I. BACKGROUND

Plaintiff Andrew LaBreche, a licensed North Carolina attorney, filed this action under 42 U.S.C. 1983 along with supplemental state claims. Plaintiff originally filed the action in Rutherford County state court, but Defendants removed the action to this Court based on federal question jurisdiction under 28 U.S.C. 1331.

In a 131-page Complaint, Plaintiff alleges that Rutherford County Sheriff's Deputy Chadd Murray, along with Rutherford County judicial officials and other employees of the Rutherford County Sheriff's Office engaged in a conspiracy against him in retaliation for his investigation of allegedly wrongful conduct by all Defendants. (Doc. No. 1-1). Plaintiff has also sued the Rutherford County Sheriff's Office (“RCSO”), Rutherford County Sheriff Chris Francis, and RCSO deputies Jamie Mode, Wilmer Chavez-Perez, and Tyler Greene in their individual and official capacities (along with Murray, referred in the Complaint as the “Police Defendants). (Id. at pp. 1-2).

Plaintiff has also sued the following North Carolina Judges in their individual and official capacities: Tommy Davis, Robert Martelle, Ellen Shelley, and Michelle McEntire. All of these judges work in North Carolina Judicial District 29A. Plaintiff has also sued David Chambers, an attorney, and Ted Bell, the District Attorney for North Carolina Judicial District 29A. Chambers filed a motion to dismiss on October 15, 2021. (Doc. No. 7). RCSO, Sheriff Francis, Mode, Chavez-Perez, and Greene filed a motion to dismiss on October 28, 2021. (Doc. No. 9, 10).

Plaintiff is investigating the Judicial Council, ” which according to Plaintiff consists of at least all sitting judges (except for Judge Corey McKinnon), the District Attorney, the Clerks of Court of Rutherford and McDowell Counties, and the District 29A Public Defender. (Doc. No. 11 ¶¶ 22, 26, 41). Plaintiff contends the Judicial Council is violating North Carolina's open meetings laws, public records laws, due process, unspecified court rules and procedures, and unspecified public corruption statutes that constitute criminal offenses. (Id. ¶ 29). Pursuant to his independent investigation, Plaintiff directed third parties to conduct surveillance on the State Defendants and intercept the State Defendants' communications. (Id. ¶¶ 32, 39-41).

Plaintiff alleges that, in response to his independent investigations, the Police Defendants obtained a search warrant, signed by Defendant Davis upon “false assertions” made by the Police 2 Defendants, to search electronic devices of Trevor Pittman, a bail bondsman (hereinafter “the Pittman warrant”). (Id. ¶¶ 50-55, 196). On July 31, 2020, the Police Defendants seized Pittman's computer, phone, and paper files pursuant to the search warrant. (Id. ¶¶ 56, 66). Throughout the search, Pittman spoke freely with law enforcement officers and did not inform anyone he was represented by Plaintiff, nor did he assert attorney-client privilege. (Id. ¶¶ 50-66). After the search was complete, Plaintiff instructed the Police Defendants not to review any communications, asserting they were protected by attorney-client privilege between Plaintiff and Pittman and Plaintiff and another attorney. (Id. ¶ 67).

Plaintiff alleges the Police Defendants then “distributed electronic communications between Plaintiff and Pittman to all Defendants.” (Id. ¶¶ 72-73). Among the materials seized pursuant to the Pittman warrant were evidence of Plaintiff's directed surveillance of the State Defendants, the intercepted text messages of the State Defendants, and a text message from Plaintiff to Pittman instructing him to “immediately” send the information to “two outside investigatory agencies . . . .” (Id. ¶ 75). The materials seized from Pittman also included interviews between Plaintiff and Tina VanBuskirk, another alleged client of Plaintiff's, wherein VanBuskirk “detailed pervasive corruption and unlawful practices of previous and current government officials and attorneys, including members of the Judicial Council and Defendant Chambers. . .” (Id. ¶ 74). Media outlet RC Catalyst published this information in a series of articles, accusing the State Defendants of unlawful and corrupt conduct. (Id. ¶ 231-33).

Plaintiff alleges the State Defendants then retaliated against Plaintiff for his investigations by “recusing, threatening Plaintiff's clients, threatening Plaintiff directly, etc.” (Id. ¶ 234). On or about August 10, 2020, Defendants Davis, Martelle, and Shelley sent individual letters to Plaintiff, Defendant Bell, the Rutherford and McDowell County Clerks of Court, and the Department of Social Services, stating that each judge was recusing themselves from hearing cases in which Plaintiff appeared or was a party. (Id. ¶ 95-96, Ex. S). Additionally, Defendant McEntire informed Plaintiff that she was also recusing from all of Plaintiff's cases. (Id., Ex. S). Judge Corey McKinnon, a recently elected district court judge in District 29A, has not recused from Plaintiff's cases. (Id. ¶ 136(ss)). Plaintiff alleges the State Defendants have “refused to secure visiting judges” to hear Plaintiff's cases. (Id. ¶136(rr), Ex. S). Plaintiff asserts that he cannot practice law, has been forced to expend time and resources working for his clients, and is forced to repeatedly perform work for free due to the judicial recusals. (Id. ¶ 137, 145).

Plaintiff brings the following claims for relief: (1) declaratory judgment and/or injunctive relief pursuant to N.C. Gen. Stat. 143-318.16-143-318.16A, alleging the Judicial Council violated the North Carolina Open Meetings Act, against Defendants Davis, Martelle, Shelley, McEntire, and Bell; (2) North Carolina Constitutional claims alleging violation of Article I, Secs. 1, 14, 18 and 19 of the North Carolina Declaration of Rights of the North Carolina Constitution by judicial recusal from presiding over Plaintiff's cases, denying him access to the courts, freedom of speech and press, due process and the fruits of his labor, against Defendants Davis, Martelle, Shelley, McEntire, and Bell; (3) a state tort claim for tortious interference with Plaintiff's contractual relationship with his clients, against Defendants Davis, Martelle, Shelley, McEntire, and Bell; (4) a violation of N.C. Gen. Stat. 15A-286 et seq., by unlawfully listening to recordings seized pursuant to a search warrant, against all Defendants; (5) a state law claim for civil conspiracy, alleging the State Defendants conspired with each other and the other Defendants to determine the content of Plaintiff's independent investigations and to retaliate against Plaintiff for his independent investigations, against all Defendants; (6) a state law claim for abuse of process related to the Pittman warrant and another warrant, against Police Defendants and State Defendants Davis and Bell; (7) a state tort claim for invasion of privacy, against all Defendants; (8) a 42 U.S.C. 1983 claim, alleging Fourth and Fourteenth Amendment violations related to materials seized pursuant to a search warrant, against all Defendants; (9) a 42 U.S.C. 1983 claim, alleging First and Fourteenth Amendment violations related to alleged retaliatory actions done for the purpose of censoring and punishing Plaintiff, against all Defendants; (10) a Monell liability claim against Defendant Rutherford County Sheriff's Office and Defendant Francis based on failure to train and supervise and under Article 19 of the North Carolina Declaration of Rights. For relief, Plaintiff seeks compensatory damages, punitive damages, attorney fees and costs, and a declaration that the recusals by the named Defendant judges are violating Plaintiff's state and federal constitutional rights and an order mandating relief so that the courts are open and available to hear Plaintiff's and his client's cases.

The Court held a hearing on the motions to dismiss on January 31, 2022. This matter is ripe for disposition.

II. STANDARD OF REVIEW

Defendants have filed motions to dismiss, pursuant to Rule 12(b)(1), 12(b)(2), and Rule 12(b)(6) of the Federal Rules of Civil Procedure.

This Court must dismiss all or part of a complaint over which it lacks subject matter and personal jurisdiction. Fed.R.Civ.P. 12(b)(1) and (2). This threshold question shall be addressed by the court before considering the merits of the case. Jones v. Am. Postal Workers Union, 192 F.3d 417, 422 (4th Cir. 1999). Plaintiff has the burden of proving that jurisdiction exists. Richmond, Fredericksburg &Potomac R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991).

A motion to dismiss based on sovereign immunity is a jurisdictional issue; whether sovereign immunity is grounded in a lack of subject matter jurisdiction or personal jurisdiction is unsettled in North Carolina. See M Series Rebuild, LLC v. Town of Mount Pleasant, Inc., 222 N.C.App. 59, 59 (2012). Likewise, Eleventh Amendment immunity has attributes of both subject-matter and personal jurisdiction.” Constantine v. Rectors...

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