# RICHARDSON v. CITY OF DURHAM

> District Court, M.D. North Carolina · July 30, 2020

URL: https://www.frixlaw.com/law-library/cases/10253639

## Case

- **Court:** District Court, M.D. North Carolina
- **Decided:** July 30, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

DONALD RAY RICHARDSON, )
)
Plaintiff, )
)
v. )
)
N.C. STATE BUREAU OF )
INVESTIGATION, SBI DIRECTOR )
ROBERT SHURMEIER IN HIS )
OFFICIAL AND PERSONAL )
CAPACITY, FORMER SBI DEPUTY )
DIRECTOR GREGORY TART IN HIS )
OFFICIAL AND PERSONAL ) 1:20cv141
CAPACITY, ASSISTANT DIRECTOR )
KANAWHA PERRY IN HIS OFFICIAL )
AND PERSONAL CAPACITY, SBI )
AGENT DANNIE SCOTT FAIRCLOTH IN )
HIS OFFICIAL AND PERSONAL )
CAPACITY, CITY OF DURHAM, )
OFFICER JESUS SANDOVAL IN HIS )
OFFICIAL AND PERSONAL )
CAPACITY, and SAMANTHA ALEX )
BUCK, )
)
Defendants. )

MEMORANDUM OPINION AND ORDER

THOMAS D. SCHROEDER, Chief District Judge.
Upon removal from state court, this case came before this
court on the motions to dismiss of Defendants Jesus Sandoval and City
of Durham. (Docs. 7, 11.) After reviewing those motions, the court
directed the parties to brief whether subject matter jurisdiction
exists. (Doc. 28.) Plaintiff Donald Richardson filed a brief
arguing the lack of such jurisdiction and urging remand. (Doc.
32.) Defendants City of Durham and Sandoval filed a brief
supporting a finding of subject matter jurisdiction. (Doc. 31.)
For the reasons set forth below, the court finds that it lacks
subject matter jurisdiction and that remand to state court is
required.
I. BACKGROUND
Richardson brings claims against three groups: N.C. State

Bureau of Investigation (“SBI”), Robert Shurmeier, Gregory Tart,
Kanawha Perry, and Dannie Scott Faircloth (“SBI Defendants”); City
of Durham and Jesus Sandoval (“Durham Defendants”), and Samantha
Alex Buck. (Doc. 2 ¶¶ 2-8.) According to the complaint,
Richardson, worked as an agent for the North Carolina Alcohol Law
Enforcement (“ALE”) branch of the SBI. (Id. ¶ 23.) Buck falsely
accused him of rape after he and other ALE officers spoke with
Buck and searched her car in a gas station parking lot in January
2017. (Id. ¶¶ 27-51.)
Sandoval was a Durham Police Department (“DPD”) Officer
assigned to investigate Buck’s claims against Richardson and the

other ALE officers. (Id. ¶¶ 50-51.) DPD and SBI initiated a joint
criminal investigation into Plaintiff’s actions. (Id. ¶ 55.)
Pursuant to this investigation, Sandoval authored a search warrant
and in the application for it, falsely stated that security camera
footage from the gas station supported Buck’s claims. (Id. ¶ 59.)
Surveillance footage from the gas station clearly demonstrated
otherwise. (Id. ¶¶ 43, 61.) Nevertheless, because Sandoval
falsely misrepresented the contents of the video, a North Carolina
superior court judge issued the warrant (id. ¶ 59), which
Richardson claims was vague and overly broad (id. ¶ 73). SBI
Defendant Faircloth executed the warrant on Richardson at SBI
Headquarters. (Id. ¶ 60.) Richardson also claims that, subject
to the vague search warrant, his DNA and fingerprints were

collected, his state-owned work vehicle was searched, and his
personal property, including his personal phone, was seized. (Id.
¶¶ 65, 73, 76, 81-85, 89.)
After the search, SBI initiated an internal investigation of
Richardson’s conduct. (Id. ¶ 62.) Richardson alleges that all of
the officers who investigated him had viewed the security camera
footage that exonerated him, yet the officers intentionally
continued their investigation. (Id. ¶¶ 57, 69.) In conducting
the SBI internal investigation, Richardson claims, Defendants did
not follow ALE policy. (Id. ¶¶ 101-11.) The internal
investigation ultimately concluded that Richardson had improperly

refused to turn over his cell phone pursuant to the search warrant
and that he had failed to document the seizure of evidence during
the search of Buck’s vehicle. (Id. ¶ 116.) As a result,
Richardson received a 10-day unpaid suspension, was required to
partake in search and seizure training, and was prohibited from
working in Durham County. (Id. ¶¶ 130, 146).
On January 9, 2020, Richardson filed the instant complaint in
Durham County Superior Court. (Doc. 1 ¶ 5; Doc. 2.) On February
13, the City of Durham timely removed the case to this court.1
(Doc. 1.) The City argued that Richardson had alleged that
Defendants had violated his federal constitutional rights
sufficient to establish federal arising under jurisdiction. (Id.
¶¶ 10-13, 17-18.) The City and Sandoval filed separate motions to

dismiss (Docs. 7, 11.) Richardson filed a consolidated response
brief (Doc. 22), and Sandoval filed a reply (Doc. 23). On June
30, this court directed the parties to file briefs addressing the
issue of whether this court has subject matter jurisdiction over
the case. (Doc. 28.) While this issue was being briefed, SBI
Defendants filed a motion to dismiss. (Doc. 29.)
II. ANALYSIS
Defendants bear the burden of demonstrating that subject
matter exists, as they removed this action from state court. Steel
Co. v. Citizens for a Better Env’t, 523 U.S. 83, 103-04 (1998)
(“[T]he party invoking federal jurisdiction bears the burden of

establishing its existence.”).
A defendant may remove a case from state court only if “the
district courts of the United States have original jurisdiction”
over the case. 28 U.S.C. § 1441(a). A federal court will have
subject matter jurisdiction in a removed action if: (1) there is

1 Removal was timely because the City of Durham was served with the
complaint on January 14. (Doc. 2 ¶ 19.)
diversity jurisdiction, see 28 U.S.C. § 1332; (2) the face of the
“well-pleaded” complaint raises a federal question, see 28 U.S.C.
§§ 1331, 1338; or (3) the state law claims are completely preempted
by federal law. Lontz v. Tharp, 413 F.3d 435, 439-40 (4th Cir.
2005). If none of these is present, remand is proper. “Because
the lack of subject matter jurisdiction may be noticed by the

district court sua sponte . . . the court may enter a remand order
sua sponte.” Ellenburg v. Spartan Motors Chassis, Inc., 519 F.3d
192, 196 (4th Cir. 2008) (internal citations omitted).
Defendants do not argue, nor is it the case, that diversity
jurisdiction is present here. Thus, the court may exercise
jurisdiction only if the face of Richardson’s complaint raises a
federal question, or if his state law claims are completely
preempted by federal law.
Under the well-pleaded complaint rule, “federal jurisdiction
exists only when a federal question is presented on the face of
the plaintiff’s properly pleaded complaint. The rule makes the

plaintiff the master of the claim; he . . . may avoid federal
jurisdiction by exclusive reliance on state law.” Caterpillar,
Inc. v. Williams, 482 U.S. 386, 392 (1987) (internal citation
omitted).2 The most direct and clear example of a case arising

2 The “artful pleading” exception allows removal of a case when “federal
law completely preempts a plaintiff’s state-law claim” despite the fact
that “no federal question appears on the face of the plaintiff’s
complaint.” Rivet v. Regions Bank of La., 522 U.S. 470, 475 (1998)
(emphasis added). Although Defendants invoke Rivet here, federal law
under federal law occurs “when federal law creates the cause of
action asserted.” Gunn v. Minton, 568 U.S. 251, 257 (2013). As
the City noted, Richardson’s complaint seeks claims for relief
arising under state law. (Doc. 1 ¶ 16.)3
Defendants argue that Richardson’s complaint falls under the
“special and small category” of cases in which federal question

jurisdiction may still exist even when claims find their origins
in state law. Gunn, 568 U.S. at 258 (quoting Empire Healthchoice
Assurance, Inc. v. McVeigh, 547 U.S. 677, 699 (2006)). In this
narrow category of cases, “federal jurisdiction over a state law
claim will lie if a federal issue is (1) necessarily raised, (2)
actually disputed, (3) substantial, and (4) capable of resolution
in federal court without disrupting the federal-state balance
approved by Congress.” Id. A failure to satisfy any of these
four elements requires remand. Burrell v. Bayer Corp., 918 F.3d
372, 386 (4th Cir. 2019).
Defendants argue that Richardson’s complaint meets the first

element because Richardson alleges that Defendants violated his
federal constitutional rights. To be sure, Richardson does claim

does not completely preempt Richardson’s state claims, so the artful
pleading exception does not apply.

3 Specifically, Richardson brings claims for civil conspiracy (Doc. 2
¶¶ 149-60); malicious prosecution (Id. ¶¶ 161-73); punitive damages
(Id. ¶¶ 174-80.); violations of N.C. Const. Art. I § 1 (Id. ¶¶ 181-
86); violations of N.C. Const. Art. I § 19 (Id. ¶¶ 187-200.); and
defamation (Id. ¶¶ 201-20).
that Defendants violated his rights under the Fourth and Fourteenth
Amendments. (Doc. 2 ¶¶ 21, 153.) Defendants further argue that
the second element is satisfied because they dispute Richardson’s
constitutional rights were actually violated.
Assuming Defendants satisfy these first two elements, they
have not satisfied the third. The Supreme Court has stated that

the “substantial” element refers to “the importance of the issue
to the federal system as a whole.” Gunn, 568 U.S. at 260. A
substantial question “generally will involve a pure issue of law,
rather than being fact bound and situation-specific because the
crux of what makes a question substantial . . . is that it is
importan[t] to the federal system as a whole and not just to the
particular parties in the immediate suit.” Burrell, 918 F.3d at
385. (alteration in original) (internal citations and quotation
marks omitted). This element is a “high bar” for Defendants to
meet. Id. Defendants argue that the federal right at issue here
-– the right to be free from unreasonable search and seizure –

qualifies in this case. It does not.
Although the Fourth Amendment right to be free from
unreasonable searches and seizures is indeed significant, it is
not fundamentally important to the federal system as a whole. The
Supreme Court has found that a quintessential “substantial” issue
concerns the “constitutionality or construction of a federal
statute.” Id. Resolution of the federal question here does not
address a federal statute, nor have Defendants shown how resolution
of the federal issue here “would be controlling in numerous other
cases.” Empire Healthchoice Assurance, Inc. v. McVeigh, 547 U.S.
677, 700 (2006). Other district courts addressing similar
arguments have found that when a plaintiff brings state law tort
claims that encompass violations of federal constitutional rights,

a substantial federal question is not invoked. Rather, such claims
are the types of fact-bound and situation-specific issues that the
Supreme Court has found insufficient to establish federal “arising
under” jurisdiction. See, e.g., Torres v. City of Trenton, Civil
Action No. 19-18368 (MAS) (ZNQ), 2020 WL 2767316, at *2 (D.N.J.
May 27, 2020); Fitzgerald v. New Mexico, No. 17-CV-00365-MCA-LF,
2018 WL 671183, at *3-4 (D.N.M. Jan. 31, 2018).
Defendants also note that a companion case, arising out of
the same set of facts, is before this court. The plaintiff in
that case, Jack Cates, was one of the other ALE officers who, along
with Richardson, interacted with Buck that night. Cates brings

claims arising out of an illegal search and seizure by Defendant
Sandoval. Defendants argue that a remand of Richardson’s case
here would “jeopardize the uniformity of decisions.” (Doc. 31 at
10.) However, a critical fact distinguishes Cates’s case from
Richardson’s: Cates has brought a claim under 42 U.S.C. § 1983 for
violations of his rights under the First, Fourth, Fifth, and
Fourteenth Amendments. (1:20cv00200, Doc. 3 ¶¶ 25-29.) Cates’s
complaint presents a federal question on its face such that the
court may exercise jurisdiction. Grable & Sons Metal Prods., Inc.
v. Darue Eng’g & Mfg., 545 U.S. 308, 312 (2005) (“[The] provision
for federal-question jurisdiction is invoked by and large by
plaintiff[] pleading a cause of action created by federal law
(e.g., claims under 42 U.S.C. § 1983).”). Richardson, on the other

hand, has not alleged any federal causes of action; such is his
right as the master of his claims. He confirms that in his briefing
to this court. Defendants’ argument that a remand here would
create disparate results is therefore unpersuasive, as “even a
strong interest in uniformity of results is not enough to make a
federal question ‘substantial’ so that it may be heard in federal
courts.” Burrell, 918 F.3d at 386. State courts are fully capable
of deciding federal issues that accompany state claims. Id.; see
also Merrell Dow Pharm. Inc. v. Thompson, 478 U.S. 804, 816 (1986)
(“Petitioner’s concern about the uniformity of interpretation,
moreover, is considerably mitigated by the fact that, even if there

is no original district court jurisdiction for these kinds of
actions, [the Supreme Court] retains power to review the decision
of a federal issue in a state cause of action.”).
Thus, Defendants have failed to show that any federal issue
underlying Richardson’s state claims is so substantial as to
establish federal subject matter jurisdiction. This renders
consideration of the remaining final factor unnecessary. Burrell,
918 F.3d at 386.
III. CONCLUSION
For the reasons stated, the court finds subject matter
jurisdiction wanting.
IT IS THEREFORE ORDERED that this action is REMANDED to the
General Court of Justice, Superior Court Division, of Durham

County, North Carolina, for further proceedings. Defendants’
various motions to dismiss (Docs. 7, 11, 29) are DENIED as moot.
The Clerk of Court is directed to close this case.

/s/ Thomas D. Schroeder
United States District Judge

July 30, 2020

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10253639. Public record. Not legal advice.