Simmons v. The City of Southport North Carolina

• Jurisdiction: United States,Federal,North Carolina
• Court: U.S. District Court — Eastern District of North Carolina
• Writing for the Court: TERRENCE W. BOYLE, UNITED STATES DISTRICT JUDGE
• Docket Number: 7:21-CV-130-BO
• Decision Date: 18 January 2024
• Citation: Simmons v. The City of Southport North Carolina, 7:21-CV-130-BO (E.D. N.C. Jan 18, 2024)
• Parties: MICHAEL CHRISTIAN SIMMONS, Plaintiff, v. THE CITY OF SOUTHPORT NORTH CAROLINA, BRANNON GRAY, in his individual capacity, and KEVIN LONG, in his individual capacity, Defendants.
• topic: Civil Rights,Employment Law,Public Sector Law

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MICHAEL CHRISTIAN SIMMONS, Plaintiff, v. THE CITY OF SOUTHPORT NORTH CAROLINA, BRANNON GRAY, in his individual capacity, and KEVIN LONG, in his individual capacity, Defendants.

No. 7:21-CV-130-BO

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

January 18, 2024

ORDER

TERRENCE W. BOYLE, UNITED STATES DISTRICT JUDGE

This cause comes before the Court on defendants' motion for summary judgment. Plaintiff has responded, defendants have replied, and a hearing on the matter was held before the undersigned on December 1, 2023, at Raleigh, North Carolina. In this posture, the motion is ripe for ruling. For the reasons that follow, the motion is granted.

BACKGROUND

Plaintiff is a former City of Southport police officer who filed a complaint alleging that the City of Southport and two of his police colleagues. Kevin Long and Brannon Gray, subjected him to unlawful discrimination, denial of his due process rights and wrongful termination when he was ultimately fired. Plaintiff s remaining claims in his second amended complaint are for racial discrimination under 42 U.S.C. § 1983 and wrongful termination and negligence under North Carolina law.

The undisputed facts are as follows. [DE 44 & 49], Plaintiff was employed as a sworn police officer with the police department for the City of Southport, North Carolina, from 2006 to October 2018. He was promoted three times, ultimately to the rank of lieutenant in 2016. When plaintiff was hired in 2006 Jerry Dove was the Chief of Police. Dove retired in 2016 and Kerry McDuffie, who was then city manager, promoted Gary Smith to chief of police and plaintiff to lieutenant. As lieutenant, plaintiff was the second-in-command under Chief Smith. Smith and plaintiff identify as African American, and plaintiff had a good relationship with both Smith and McDuffie. Plaintiff does not believe he was discriminated against by either Smith or McDuffie.

Defendants Long and Gray, who are both white men, were plaintiff s subordinates in the police department. Long was the first sergeant, directly under plaintiff in the chain of command, and Gray was not a supervisor. Plaintiff never personally witnessed either Long or Gray uttering racial slurs and plaintiff only learned of allegations regarding racial slurs after his employment was terminated.

In 2017 and 2018, plaintiff and Smith were engaged in secondary employment as part-time truck drivers for Oak Island Transport. In approximately September 2017 through early 2020 Bruce Oakley was the City Manager for the City of Southport. Oakley has testified that City of Southport police officers and other city employees were generally permitted to engage in secondary employment, so long as they did so while they were off duty from city employment and the other work did not interfere with their city employment.

In early 2018, a City of Southport police officer who is not a defendant, Jonathan Elliott, contacted a special agent with the North Carolina State Bureau of Investigations (SB1), Hunter Whitt, to report concerns that plaintiff was defrauding the City of Southport by engaging in truck driving for Oak Island Transport while he was "on the clock” for the police department. Officer Elliott put Special Agent Whitt in touch with Long, who, with Elliott, met with Special Agent Whitt and Federal Bureau of Investigation (FBI) Agent Clint Morris. Special Agent Whitt and Agent Morris then began investigating plaintiff s activities.

Defendant Gray voiced his concerns regarding plaintiff s secondary employment to Oakley. Oakley brought the issue to Chief Smith's attention; Smith confirmed that both he and plaintiff had second jobs but that their truck driving work was outside their work hours for the City.

During the course of the investigation by Special Agent Whitt and Agent Morris, Whitt discovered conflicts between plaintiff s clocked hours for the Southport Police Department and his driving logs for Oak Island Transport. On July 26, 2018, plaintiff and Chief Smith were arrested and charged with criminal offenses, including obtaining property by false pretenses, failure to discharge a duty, and obstruction of justice. The City of Southport was the alleged victim of the crimes. On July 31,2018, the entire Southport Police Department was suspended for three months due to the charges against Chief Smith and plaintiff. The day of plaintiffs arrest. City Manager Oakley placed plaintiff on administrative leave with pay. In August 2018, plaintiff s leave status was changed by Oakley to suspension without pay and he was indicted by a grand jury. Plaintiff s employment as a police officer for the City of Southport was terminated by Oakley on October 3, 2018. At the time of his termination, plaintiff s pay rate was $23.63 per hour, or $51,607.92 per year without overtime) and his year-to-date earnings were $42,133.30.

In January 2023, Smith pleaded guilty to one count of willful failure to discharge duties and one count of obstruction of justice; his remaining charges were dismissed. On February 1. 2023, plaintiff was convicted by a Brunswick County jury of willful failure to discharge duties and obstruction of justice, both misdemeanors. Plaintiff was acquitted of all felony charges, including obtaining property by false pretenses.

In January 2014, while McDuffie was city manager, another Southport police officer, Bryon Vassey, who is white, was charged with voluntary manslaughter after shooting and killing a suspect while responding to a mutual aid request from a neighboring town. Vassey was also initially suspended with pay while the incident was investigated, but his status was changed to suspended without pay after he was charged. Vassey was ultimately acquitted of all charges at trial.

In his response to defendants' Local Civil Rule 56.1 statement, plaintiff proffers the following additional material facts. The City of Southport hired its first African American police chief, George McCracken, in 1974 and he served in that position for six years. At his jury trial, plaintiff was acquitted of all felony charges, including three counts of obtaining property by false pretenses, and plaintiff has appealed his misdemeanor convictions. The City of Southport did not accuse plaintiff of stealing from the City or failing to discharge his duties. City Manager Oakley never reduced any complaints about plaintiff to writing. Following the jury trial, plaintiff filed a voluntary dismissal of the claims against Jonathan Elliott in this case because the testimony at trial established that the investigation into plaintiffs activities was based on statements from defendants Long and Gray.

DISCUSSION

Defendants have moved for summary judgment in their favor on all of plaintiff s claims. They have also raised the defense of qualified immunity for the individual defendants Long and Gray. A motion for summary judgment may not be granted unless there are no genuine issues of material fact for trial and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett. 477 U.S. 317, 323 (1986). If that burden has been met the non-moving party must then come forward and establish the specific material facts in dispute to survive summary judgment. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 588 (1986). In determining whether a genuine issue of material fact exists for trial, a trial court views the evidence and the inferences in the light most favorable to the nonmoving party. Scott v. Harris, 550 U.S. 372, 378 (2007). However, "[t]he mere existence of a scintilla of evidence” in support of the nonmoving party's position is not sufficient to defeat a motion for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). “A dispute is genuine if a reasonable jury could return a verdict for the nonmoving party. . . . and [a] fact is material if it might affect the outcome of the suit under the governing law.” Libertarian Party of Virginia v. Judd, 718 F.3d 308. 313 (4th Cir. 2013) (internal quotations and citations omitted). Speculative or conclusory allegations will not suffice. Thompson v. Potomac Elec. Power Co., 312 F.3d 645, 649 (4th Cir. 2002).

A. 1983 claim

Plaintiff brings a claim under 42 U.S.C. § 1983 alleging that the City of Southport violated his constitutional rights by (1) depriving him of the property interest he held in his job without due process and by failing to (2) fully compensate him or (3) treat him equally as compared to white officers. As plaintiff has alleged his § 1983 claim against the City of Southport, the Court addresses (4) whether he can support a claim against the City under Monell v. New York City Department of Social Services, 436 U.S. 658, 690-94 (1978). Plaintiff further alleges that (5) the individual defendants violated his constitutional rights by making baseless allegations of illegal activity, conducting unauthorized investigations of plaintiff, and conducting warrantless searches of his personal items.

(1) Property interest in employment

The Court first addresses plaintiff s claim that he was deprived of a property interest in his employment without due process. Plaintiff has not responded to defendants' arguments on this claim, and the Court may thus consider any arguments plaintiff may have made to have been waived. United Supreme Council w United Supreme Council of Ancient Accepted Scot. Rite for 33 Degree of Freemasonry, 329 F.Supp.3d 283, 292 (E.D. Va. 2018) ("Failure to respond to an argument made in a dispositive pleading results in a concession of that claim.''). Moreover, North Carolina has long recognized the doctrine of...