Norton v. Columbus Cnty. Bd. of Elections

• Decision Date: 12 March 2020
• Docket Number: No. 7:19-CV-88-D,7:19-CV-88-D
• Citation: 493 F.Supp.3d 450
• Court: U.S. District Court — Eastern District of North Carolina
• Parties: Calvin Tyrone NORTON, Plaintiff, v. COLUMBUS COUNTY BOARD OF ELECTIONS, et al., Defendants.

493 F.Supp.3d 450

Calvin Tyrone NORTON, Plaintiff,

v.COLUMBUS COUNTY BOARD OF ELECTIONS, et al., Defendants.

No. 7:19-CV-88-D

United States District Court, E.D. North Carolina, Southern Division.

Signed March 12, 2020

Filed March 13, 2020

Calvin Tyrone Norton, Whiteville, NC, pro se.

Norwood P. Blanchard, III, Crossley McIntosh Collier Hanley & Edes, PLLC, Wilmington, NC, for Defendants Columbus County Board of Elections, Harold Fipps, Bonita Blakney, Joann Garrell, Tucker (Mack) Ward, Carla Strickland, Columbus County Board of Commissioners, Trent Burroughs, Jerome McMillian, James E. Prevatte, Giles E. Byrd, Edwin P. Russ, Ricky Bullard, Charles McDowell, Amanda Prince, Aaron Herring.

Oscar M. Blanks, III, The Law Office of Oscar M. Blanks III, PLLC, Whiteville, NC, for Defendant Lewis L. Hatcher.

Dan McCord Hartzog, Jr., Michael B. Cohen, Hartzog Law Group LLP, Cary, NC, for Defendant Jody Steadman Greene.

Jonathan Whitfield Gibson, Manning Fulton & Skinner, P.A., Raleigh, NC, for Defendant Western Surety Co.

Kathryn H. Shields, NC Department of Justice, Raleigh, NC, Anna M. Davis, City of Durham, Durham, NC, for Defendant Jess Hill.

Danny Earl Britt, Jr., The Britt Law Firm, PC, Lumberton, NC, for Defendants Brendan Jones, Danny Earl Britt, Jr.

Kevin G. Williams, Mark Andrew Jones, Bell, Davis & Pitt, P.A., Winston-Salem, NC, for Defendants Red Dome Group, Inc., Scott Andrew Yates.

David S. Coats, Bailey & Dixon, Raleigh, NC, for Defendant Boyd T. Worley.

Andrew Darrell Penny, Norwood P. Blanchard, III, Crossley McIntosh Collier Hanley & Edes, PLLC, Wilmington, NC, for Defendant Norwood P. Blanchard.

ORDER

JAMES C. DEVER III, United States District Judge On May 3, 2019, Calvin Tyrone Norton ("Norton" or "plaintiff"), proceeding pro se, filed this action challenging the November 2018 election for the office of Sheriff of Columbus County, North Carolina [D.E. 1]. Pursuant to Federal Rule of Civil Procedure 19, Norton moves for joinder of the North Carolina State Board of Elections and its members ("NCSBOE") as defendants [D.E. 11]. All defendants except Leslie Macrae Dowless and Lewis Hatcher move to dismiss the complaint. See [D.E. 22, 28, 36, 54, 66, 68, 70, 83, 96, 98, 106].¹ Norton moves for entry of default against defendant Dowless [D.E. 48], to strike certain defense pleadings and to disqualify defense counsel [D.E. 86], for a temporary restraining order or preliminary injunction and hearing [D.E. 50, 51], and for summary judgment or partial summary judgment against defendant Jody Steadman Greene [D.E. 114]. As explained below, the court dismisses the federal claims, denies plaintiff's motions, and declines to exercise jurisdiction over the state-law claims.

I.

Norton is a citizen and resident of Columbus County, North Carolina, and "a register[ed] and qualified voter[.]" Compl. [D.E. 1] ¶ 1. In February 2017, defendant Greene filed to run as a candidate in the 2018 election for the office of Sheriff of Columbus County. See id. at ¶¶ 17, 33. In February 2018, Greene amended his notice of candidacy "to certify his ‘nickname[.]’ " Id. at ¶ 34. Norton alleges that Greene is not a resident of Columbus County, and that Greene's notice of candidacy was " ‘VOID’ and improper" because it was "deface[d] ... in fraudulent intent" to indicate that it was filed in 2018 rather than in 2017. Id. at ¶¶ 17, 35, 37-38, 89-95. Norton also alleges that defendant Worley, an attorney in private practice, assisted Greene in fraudulently obtaining residency by "prepar[ing] a warrant deed" for real property with "knowledge that Greene ha[d] not exchange[d] his tax status with the Tax Assessment Office of Columbus County as ... required as a matter of law[.]" Id. at ¶¶ 27, 85-87. Norton also contends that the Columbus County Board of Commissioners "had a legal duty to investigate the matter of [Greene's] residency[.]" Id. at ¶ 140. Norton names the Columbus County Board of Commissioners, each of its members, and its legal counsel as defendants. See id. at ¶¶ 8-15, 24.

After winning the Republican primary in May 2018, Greene hired defendants Red Dome Group, Inc., Dowless, and Scott Andrew Yates. See id. at ¶ 42. Norton alleges that these defendants "collected absentee ballots illegally from numerous citizens of Columbus County by handling unsealed ballots, throwing ballots not favorable for defendant Greene in the trash belonging to a large percentage of AFRICAN American Citizens in the intent to derail the 2018 Columbus County's Election results to favor" Greene "and ultimately blocked the Plaintiff's fair right to vote in this election process." Id. at ¶¶ 49, 102, 210. Norton alleges that defendant Brendan Jones also hired these defendants to assist with his own 2018 campaign for a state legislative seat and, along with defendant Danny Earl Britt, Jr., "a NC State Senator representing Robeson and Columbus Counties ... [and] counsel of the record for defendant Brendan Jones ..., ran a joint campaign with" and "held campaign joint rallies for 2018 General Election on October 29, 2018, while knowing that Greene lack residency or domicile here in Columbus County to run for the office of the sheriff." Id. at ¶¶ 26, 50-51.

Defendant Hatcher was the incumbent sheriff and Democrat candidate on the November 2018 ballot. See id. at ¶¶ 16, 40. "Plaintiff did cast a ballot in the 2018 Election." Id. at ¶¶ 101, 209. The election between Greene and Hatcher was close. "[T]he vote tally fell less than 1% separating the candidates and" Hatcher requested a hand recount, which "showed [Greene] to be ahead by 37 votes." Id. at ¶¶ 52-53. Several Columbus County voters filed protests with the Columbus County Board of Elections ("CCBOE"),² which conducted a hearing on November 30, 2018. See id. at ¶¶ 54-57. Norton appeared at the hearing "to comment on this public matter and was refrained from speaking further by the CCBOE and its members in violation of NC. Gen. Stat. § 163 A-1178(c)(2)." Id. at ¶ 55. During the hearing, the CCBOE "dismissed most of the election protests for technicalities," and heard and rejected one protest. Id. at ¶¶ 58-60. "[A]t least 3 protests were appealed to the State Board of Elections to be heard after such board resumes on January 31, 2019[,]" and "the intentions of the protesters were made on the record as they informed the [CCBOE] that they were appealing the decisions made during that session." Id. at ¶ 62, 68. On December 10, 2018, the CCBOE issued an order dismissing the protests. See id. at ¶ 63. On December 18, 2018, Norton "filed an internal complaint still pending with the [NCSBOE], pertinently to the matter to ... stop the certifications of ... Greene[.]" Pl. Mot. Joinder [D.E. 11] 4.

On December 3, 2018, a state court judge administered the oath of office to Greene even though Greene "did not have a Certificate of the Election from the" CCBOE, and the judge refused to sign "the oath per NCGS § 11-7.1." Compl. at 63-64. Norton alleges that the CCBOE Director and legal counsel "told [Greene] to go and conduct a swear in [sic] ceremony, knowing[ ]" that there were questions about the election and Greene's residency and that the CCBOE had not yet certified the election results. Id. at ¶ 119. Defendant "Jones signed the Oath of Office ... knowingly that he did not administer the oath .... and cannot attest that [Greene] appeared before him to take the oath[.]" Id. at ¶¶ 63, 65-66, 121-122. But see Deft. Worley Mot. Dismiss, Ex. 3 [D.E. 55-4] 15 (oath of sheriff signed by Greene and Jones); Pl. Mot TRO, Ex. [D.E. 50-2]. Defendant Jess Hill, the Columbus County clerk of court, "knew the oath was void, [but] certified [the] oath as a True Copy, file[ ] stamped the oath being at 7:17 AM on December 3, 2018 before the Columbus County Courts opened at 8:30 AM and before the ceremony ever begun at 10:00 AM in bad faith." Compl. at ¶ 67; see Deft. Worley Mot. Dismiss, Ex. 3 [D.E. 55-4] 15; Pl. Mot. TRO, Ex. [D.E. 50-2]. Norton contends that Hill "had no lawful duty as the Clerk of Superior Court to maintain such records as ... the Oath of Sheriff pursuant to NC Gen Stat. § 153A-26." Compl. at ¶ 125.

After taking the oath of office, Greene "refuse[d] to ‘step aside’ and discharge his duties with criminal intent pending the appeals to the State Board of Elections in contravention to state law while placing the citizens of Columbus County at grave risk .... [of] potential civil unrest and increasing civil liability .... [and] chaos in the rule of law." Id. at ¶¶ 69-71. Hatcher filed suit "in a Columbus County Superior Court over the title ship of Sheriff per Chapter 41," but when both parties "reached ... confidential settlement to await the findings of the County and State Board of Elections," Hatcher dismissed his action. Id. at ¶¶ 72-73; see Deft. Worley Mot Dismiss, Ex. 3 [D.E. 55-4] 1-16.

On March 25, 2019, the NCSBOE remanded one protest to the CCBOE, which conducted a hearing on April 3-4, 2019. See Compl. at ¶¶ 74, 134; NCSBOE Defts.’ Resp. Opp'n Mot. Joinder, Ex. A [D.E. 58-1] 2. Norton alleges that Greene and Herring, Greene's chief deputy sheriff, "allowed numerous Greene supporters to threaten Plaintiff with verbal and physical assaults capture on video in the intent to criminally intimidate Plaintiff as a witness" during the first day of the hearing and that Greene, Herring, and Worley prohibited Norton from entering the hearing on the second day. Compl. at ¶¶ 134-37. On April 10, 2019, the CCBOE "decided that [Greene] lacks residency and domicile to run for the office of Columbus County Sheriff." Id. at ¶ 75; see NCSBOE Defts.’ Resp. Opp'n Mot. Joinder, Ex. A [D.E. 58-1] 4-5, 13-24. Hill and the protester appealed the CCBOE's decision to the NCSBOE. See NCSBOE Defts.’ Resp. Opp'n Mot. Joinder, Ex. A [D.E. 58-1] 1. On May 29, 2019, the NCSBOE reversed the CCBOE's determination as to Greene's residency and directed the CCBOE to "issue Greene a certificate of election ... unless otherwise ordered by a court of competent...