VANG v. ASHBY

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

KENG VANG, )

)

Plaintiff, )

)

v. ) 1:18cv565

)

LAUREN ASHBY, et al., )

)

Defendants. )

MEMORANDUM OPINION AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

This case comes before the Court on Defendant Shannon

McClattie (“Defendant McClattie”)’s Motion for Summary Judgment

(Docket Entry 42) and Plaintiff’s Motion for Summary Judgment

(Docket Entry 49). For the reasons that follow, the Court should

grant Defendant McClattie’s summary judgment motion and should deny

Plaintiff’s summary judgment motion.

BACKGROUND

I. Procedural History

Keng Vang (the “Plaintiff”), commenced this action in forma

pauperis pursuant to 42 U.S.C. § 1983 in connection with

Defendants’ removal of his children from his home subsequent to a

child abuse investigation, in violation of the “4th, 5th, and 14th

[A]mendments” and “NC DHHS policy.” (Docket Entry 2 at 4.)1

1 Citations to Docket Entry pages utilize the CM/ECF footer’s

pagination. In addition, in quoting Plaintiff’s filings, this

Recommendation applies standard capitalization conventions for ease

(continued...)

Plaintiff pursued his claims against Defendants in both their

individual and official capacities. (See id. at 2-3.) At the

screening stage, the undersigned recommended dismissal of all

claims against Lauren Ashby (“Ms. Ashby”) and Detective Ryan

Barkley (Docket Entry 3 at 5), and further found that the

Complaint’s “allegation that [Defendant] McClattie entered

[Plaintiff’s] home without permission or a warrant [wa]s sufficient

to state a claim against her for violating [Plaintiff’s] rights

. . . [and] allow[ed] Plaintiff’s case against [her] to proceed

. . . as to that claim only” (id. at 3). The Honorable William L.

Osteen, Jr., United States District Court Judge, adopted that

recommendation. (Docket Entry 7.) As a result, the surviving

claim in the Complaint concerns Defendant McClattie, whom the

Complaint identifies as a “Supervisor” for the Rowan County

Department of Social Services (the “DSS”). (Docket Entry 2 at 3.)

In response, Defendant McClattie answered, denying any

improper actions and asserting immunity defenses. (Docket Entry

12.) Following a six-month period for discovery (see, e.g., Text

Order dated May 30, 2019), Defendant McClattie filed her summary

judgment motion (see Docket Entry 42; see also Docket Entry 43

(summary judgment brief); Docket Entry 43-1 (Affidavit of Defendant

McClattie); Docket Entry 43-2 (Affidavit of Ms. Ashby); Docket

1(...continued)

of reading.

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Entry 43-3 (Affidavit of Cynthia Dry); Docket Entry 43-4 (Affidavit

of Detective Cody Trexler); Docket Entry 43-5 (Deposition of

Plaintiff)).2 Plaintiff responded (Docket Entry 51) and Defendant

McClattie replied (Docket Entry 53). In addition, Plaintiff filed

his summary judgment motion (Docket Entry 49) and Defendant

McClattie responded (Docket Entry 50).

II. Factual History

As relevant to the summary judgment motions, the record

reflects the following:

A. Plaintiff’s Allegations

According to Plaintiff’s Complaint, “the events giving rise to

[his] claim arose . . . [a]t [his] home . . . . [The v]iolation

happened on . . . 03/09/2018.” (Docket Entry 2 at 4.) More

specifically as to Defendant McClattie, the Complaint alleges that

the following occurred on March 9, 2018:

[Defendant] McClattie in armo[red] vest led Rowan Police

Department, five officers to be exact, also in body

armo[]r with guns and tasers[, ] to the residen[ce] of

[Plaintiff] without a warrant or court order and that

evening[, ] apprehended [Plaintiff’s children].

[Defendant] McClattie and [an o]fficer forced their way

in without approval from [a j]udge or [m]agistrate under

2 Defendant McClattie filed her summary judgment brief and

related attachments in redacted form. (See Docket Entries 43, 43-

1, 43-2, 43-3, 43-4, 43-5.) She also filed a motion to seal along

with sealed unredacted versions of the summary judgment brief and

related attachments. (See Docket Entries 44, 47, 48, 48-1, 48-2,

48-3, 48-4, 48-5.) Formal resolution of that motion will occur via

separate order at a later date, but resolution of the parties’

competing summary judgment motions necessitated public disclosure

of some of the redacted material.

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oath to take actions that occurred that afternoon [which

v]iolated the 14th amendment [right] of [Plaintiff,

Plaintiff’s wife], and all four children. Deprived of

their life, liberty, and freedom instantly without proper

due process of law and procedur[e].

. . . .

[Defendant] McClattie was rude and f[or]ceful. She had

a strong attitude that was admirable, but [Plaintiff]

only ask[s] for one thing and that was a warrant from

Rowan County Sheriff’s and [DSS]. Their invest[i]gation

of the child abuse case [wa]s flawed and not thoroughly

conducted. They used scare tactic[s] and folly [sic]

actions on a natural born United State[s] citizen

. . . .

(Id. at 18-21.)3

B. Defendant McClattie’s Affidavit

In regard to these allegations, Defendant McClattie submitted

an affidavit (the “McClattie Affidavit”) (Docket Entry 48-1), which

reflects the following:

. . . . It is my understanding that [Plaintiff] contends

that I entered his home on March 9, 2018[,] unlawfully,

without his permission or a warrant. His contentions are

false, as I had his express permission to enter his home

on March 9, 2018. . . .

I currently serve as the Children’s Services Supervisor

for the Rowan County [DSS], a position that I have held

since October 2012. . . .

As [a] supervisor, I engaged in Two-Level Review with

[Ms.] Ashby, the Social Worker assigned to the [CPS]

investigation into allegations of physical abuse by

[Plaintiff] of his child. . . .

. . . .

3 As previously observed, Plaintiff, “acting as a pro se

party, cannot raise claims on behalf of others . . . .” (Docket

Entry 3 at 2-3.)

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I chose to accompany [Ms.] Ashby to assist her in taking

temporary custody of [Plaintiff’s] children. . . .

. . . . Consequently, we coordinated with the Rowan

County Sheriff’s Office for several Sheriff’s Deputies to

escort us to [Plaintiff’s] house to help maintain peace

and order. . . .

. . . .

Upon our arrival at [Plaintiff’s] residence, we all

parked our respective cars and slowly got out of them.

Per our plan, I took the lead in interacting with

[Plaintiff] while Ms. Ashby and the Deputies stayed in

the background by design. As I walked up the driveway of

the house toward a door located under a carport,

[Plaintiff] open[ed] the door. He stood in the doorway

and asked me who I was and why I was there. I identified

myself to [Plaintiff] and told him that Ms. Ashby and I

had come to take temporary custody of his children.

. . . . [Plaintiff] stated that we did not have

authority to take custody of his children. . . .

[Plaintiff] was loud and aggressive. However, I

maintained a calm, ‘matter of fact’ demeanor which seemed

to de-escalate his anger. I asked him to please come

outside of his house and speak with me, and he did so.

We continued talking face to face under the carport.

. . . .

After a few minutes, [Plaintiff] asked me if we could

discuss the matter further in private inside his house.

He invited me to come inside of his house, but told me

that [neither Ms. Ashby] nor any police officers were

allowed inside. . . . [Plaintiff] turned around and went

inside his house, and I followed him. Ms. Ashby and the

Sheriff’s Deputies remained outside. . . .

(Id., ¶¶ 1-12 (numbers omitted).)

C. Other Supporting Affidavits

Along with her summary judgment motion, Defendant McClattie

also submitted affidavits from Ms. Ashby (the “Ashby Affidavit”)

(Docket Entry 48-2) and Detective Cody Trexler (the “Trexler

Affidavit”) (Docket Entry 48-4), a “duly appointed and sworn Rowan

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County Deputy Sheriff, holding the rank of Detective Sergeant”

(id., ¶ 2), “detailed to accompany . . . [Ms.] Ashby and

[Defendant] McClattie” (id., ¶ 3). The Ashby Affidavit states that

the following occurred at Plaintiff’s house on the afternoon of

March 9, 2018:

. . . . [Defendant] McClattie took the lead, walking

toward the main door of the house, which opened out onto

a carport on the side of the house. Before [Defendant]

McClattie got to the door, [Plaintiff] opened the door

and stood in the open doorway. [Defendant] McClattie

stopped walking and stood still, while the Sheriff’s

Deputies and [Ms. Ashby] stood silent several yards

behind her.

[Defendant] McClattie began to talk with [Plaintiff]

advising him that she and [Defendant Ashby] had come to

take temporary custody of [Plaintiff’s] children. . . .

[Plaintiff] did not like what [Defendant McClattie] was

saying to him, and angrily responded that we could not

take custody of his children. [Defendant] McClattie

remained calm, but firm. . . .

[Plaintiff] eventually came outside to talk with

[Defendant] McClattie [and a]fter a short while, [he]

invited [Defendant] McClattie inside his home. . . . He

told [Defendant] McClattie that she could come inside

[of] his house, but that the rest of us had to stay

outside. At [Plaintiff’s] invitation, [Defendant]

McClattie followed [Plaintiff] inside of his home, while

the Sheriff’s Deputies and I remained outside.

(Docket Entry 48-2, ¶¶ 24-26 (numbers omitted).)

The Trexler Affidavit provided this similar account:

After we all exited our vehicles, [Defendant] McClattie

walked up the driveway toward the main door of the house,

which was located under a carport. The other Deputies

and I remained well behind [Defendant] McClattie in the

driveway . . . .

As [Defendant] McClattie approached the door of the

house, I saw an Asian male, whom I understand was

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[Plaintiff], come to the door. He spoke with [Defendant]

McClattie for a few minutes. [Plaintiff] opened the door

and eventually came outside, where he continued talking

with [Defendant] McClattie. I could not hear any

specific details of the conversation between [Plaintiff]

and [Defendant] McClattie, as I was standing

approximately thirty (30) feet behind [Defendant]

McClattie in the driveway. However, I did not hear

either of them raise their voice to one another, nor did

I perceive the interaction between [Plaintiff] and

[Defendant] McClattie as being overly hostile or

confrontational under the circumstances. Eventually,

[Plaintiff] turned around and went back inside of his

house, with [Defendant] McClattie following closely

behind him. I did not perceive or hear anything

suggesting to me that [Defendant] McClattie did not have

permission from [Plaintiff] to go inside of his house.

I, along with Ms. Ashby and the other four deputies,

remained outside of the house. . . .

(Docket Entry 48-4, ¶¶ 6-8 (numbers omitted).)

D. Plaintiff’s Deposition

In further support of her summary judgment motion, Defendant

McClattie submitted a transcript of Plaintiff’s deposition. (See

Docket Entry 48-5.) In his deposition, Plaintiff stated that, upon

the arrival of DSS employees and law enforcement officers on the

afternoon of March 9, 2018, Plaintiff “went straight to

. . . the door and . . . went at it [with Defendant McClattie].”

(Id. at 61.) Plaintiff explained that (i) he “was at the

threshold,” (ii) Defendant McClattie “was on the opposite side” and

(iii) Defendant McClattie “was very aggressive and wanted to take

the kids.” (Id. at 62.) Plaintiff then averred that he told

[Defendant] McClattie “to go get a warrant.” (Id.; see also id.

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(testifying that Defendant McClattie insisted that “social workers”

do not “need a warrant” to take temporary custody of children).)

At that point in the deposition, Plaintiff reported that

Defendant McClattie “forced her way in . . . the house” (id.), and

that he “gave in to the coercion, the bod[y] armor, the . . .

powerhouse[,] . . . . the detective, . . . the tactic” (id. at 63).

However, a short time later in the deposition, Plaintiff admitted

that he “didn’t want [Defendant McClattie] to take the kids[,] so

[he] told her [that he wanted to] talk to [her] in private . . . .

[He then] told [Defendant McClattie] to come in the house . . . but

[he didn’t] want the[] officers in the house. [He] told them to

stay outside.” (Id. at 67.) Plaintiff further confirmed that,

during his discussion with Defendant McClattie inside the house,

Ms. Ashby and the law enforcement officers remained outside, except

for a brief moment when a law enforcement officer “started coming

inside the house.” (Id. at 67-68.) Moreover, when Plaintiff “said

get out of the house” (id. at 68), that officer “stepped out”

(id.).

DISCUSSION

I. Summary Judgment Standards

“The [C]ourt shall grant summary judgment if the movant shows

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). A genuine dispute of material fact exists “if the

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evidence is such that a reasonable jury could return a verdict for

the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 248 (1986). The movant bears the burden of establishing the

absence of such dispute. Celotex Corp. v. Catrett, 477 U.S. 317,

323 (1986). In analyzing a summary judgment motion, the Court

“tak[es] the evidence and all reasonable inferences drawn therefrom

in the light most favorable to the nonmoving party.” Henry v.

Purnell, 652 F.3d 524, 531 (4th Cir. 2011) (en banc). In other

words, the nonmoving “party is entitled ‘to have the credibility of

his evidence as forecast assumed, his version of all that is in

dispute accepted, [and] all internal conflicts in it resolved

favorably to him.’” Miller v. Leathers, 913 F.2d 1085, 1087 (4th

Cir. 1990) (en banc) (brackets in original) (quoting Charbonnages

de France v. Smith, 597 F.2d 406, 414 (4th Cir. 1979)).

If, applying this standard, the Court “find[s] that a

reasonable jury could return a verdict for [the nonmoving party],

then a genuine factual dispute exists and summary judgment is

improper.” Evans v. Technologies Applications & Serv. Co., 80 F.3d

954, 959 (4th Cir. 1996). However, “[o]nly disputes over facts

that might affect the outcome of the suit under the governing law

will properly preclude the entry of summary judgment.” Anderson,

477 U.S. at 248. Additionally, “the non-moving party may not rely

on beliefs, conjecture, speculation, or conclusory allegations to

defeat a motion for summary judgment.” Lewis v. Eagleton,

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4:08-cv-2800, 2010 WL 755636, at *5 (D.S.C. Feb. 26, 2010) (citing

Barber v. Hospital Corp. of Am., 977 F.2d 872, 874-75 (4th Cir.

1992)), aff’d, 404 F. App’x 740 (4th Cir. 2010); see also Pronin v.

Johnson, 628 F. App’x 160, 161 (4th Cir. 2015) (explaining that

“[m]ere conclusory allegations and bare denials” or the nonmoving

party’s “self-serving allegations unsupported by any corroborating

evidence” cannot defeat summary judgment). Finally, factual

allegations in a complaint or court filing constitute evidence for

summary judgment purposes only if sworn or otherwise made under

penalty of perjury. See Reeves v. Hubbard, No. 1:08cv721, 2011 WL

4499099, at *5 n.14 (M.D.N.C. Sept. 27, 2011), recommendation

adopted, slip op. (M.D.N.C. Nov. 21, 2011).

II. Defendant McClattie’s Summary Judgment Motion

A. Individual Capacity Claim

In her brief supporting her summary judgment motion, Defendant

McClattie has argued that “the undisputed evidence in this matter

clearly demonstrates that there was no violation of Plaintiff’s

constitutional rights, as Plaintiff admits that he expressly

consented to [her] entry into his home.” (Docket Entry 43 at 14.)*

Plaintiff’s response does not dispute that he consented to

“Defendant McClattie’s sealed brief also contends that,

“pursuant to [a] North Carolina [statute], [she] was authorized to

enter Plaintiff’s home without a court order to take temporary

custody of Plaintiff’s children.” (Docket Entry 48 at 18 (all caps

and bold font omitted).) However, Plaintiff’s voluntary consent

allowing Defendant McClattie’s entry into his home renders

discussion of this North Carolina statute unnecessary.

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Defendant McClattie’s entrance into his home. (See Docket Entry 51

at 1-22.) Instead, it asserts the following:

Defendant McClattie used intimidating behavior and

coercive scare tactic[s] that put Plaintiff in immediate

fear of the consequences that compelled [] Plaintiff to

act against his will. Under duress[, P]laintiff

requested [] Defendant McClattie [] come in his house and

begged her not to take his children, that DSS had no

authorization, and that there was no child abused in the

household. It was a necessity to beseech with []

Defendant [McClattie] inside the house, leaving the

heavily armor[ed l]aw enforcement officers in the carport

. . . .”

(Id. at 13.)

“The Fourth Amendment protects ‘the right of the people to be

secure in their persons, houses, papers, and effects, against

unreasonable searches and seizures.’” Pratt v. Allbritton, No.

4:16CV198, 2018 WL 4610151, at *9 (E.D.N.C. Aug. 8, 2018)

(unpublished) (internal brackets omitted) (quoting U.S. Const.

amend. IV), aff’d, 764 F. App’x 343 (4th Cir. 2019)). However,

“[w]hen considering Fourth Amendment challenges to investigations

by DSS officials, the Fourth Circuit has explained that

‘investigative home visits by social workers are not subject to the

same scrutiny as searches in the criminal context.’” Id. (internal

bracket omitted) (quoting Wildauer v. Frederick Cty., 993 F.2d 369,

372 (4th Cir. 1993)); see also Parker v. Henry & William Evans Home

for Children, Inc., 762 F. App’x 147, 154 (4th Cir. 2019) (noting

that the Fourth Circuit has “not articulated the legal standard

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that applies to Fourth Amendment unlawful seizure claims in the

child removal context”).

In any event, even under the criminal standard, Plaintiff’s

claim ultimately fails. Of particular note, “‘[t]he Fourth

Amendment generally prohibits the warrantless entry of a person’s

home, whether to make an arrest or to search for specific objects.

The prohibition does not apply, however, to situations in which

voluntary consent has been obtained [] from the individual whose

property is searched . . . .’” United States v. Azua-Rinconada,

914 F.3d 319, 324 (4th Cir. 2019) (quoting Illinois v. Rodriguez,

497 U.S. 177, 181 (1990)). “The question whether consent to search

is voluntary — as distinct from being the product of duress or

coercion, express or implied — is one ‘of fact to be determined

from the totality of all the circumstances.’” Id. (quoting

Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973)).

Contrary to Plaintiff’s (unsworn) assertions, Defendant’s

supporting affidavits and Plaintiff’s own sworn testimony refute

any allegation of involuntary consent. In that regard, the

McClattie Affidavit, the Ashby Affidavit, and the Trexler Affidavit

show that, shortly after their arrival to Plaintiff’s residence,

(i) Defendant McClattie and Plaintiff engaged in conversation, (ii)

Plaintiff ultimately invited Defendant McClattie inside of his

residence and coupled that invitation with a directive that Ms.

Ashby and law enforcement officers remain outside, (iii) Ms. Ashby

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and law enforcement officers complied with that instruction and, at

a later point, (iv) when one or more law enforcement officers

briefly entered the residence, the officer(s) immediately exited

upon Plaintiff’s request. (See Docket Entry 48-1, ¶¶ 11-13; accord

Docket Entry 48-2, ¶¶ 25-27; Docket Entry 48-4, ¶¶ 7-9.)

Similarly, in his sworn testimony, Plaintiff stated that,

after conversing with Defendant McClattie from his doorway (see

Docket Entry 48-5 at 61-67), he “didn’t want her to take [his]

kids[,] so [he] told her well, let me talk to you in private” (id.

at 67). Plaintiff then confirmed that he “told [Defendant]

McClattie to come in the house . . . but [that he didn’t] want

the[] officers in [his] house. [He] told them to stay outside.”

(Id.) According to Plaintiff, at a later point in his conversation

with Defendant McClattie, “one of the officers started coming

inside [of his] house.” (Id. at 68.) Plaintiff “told all of

them[, including Defendant McClattie, to] step out of the house

. . . [a]nd they stepped out . . . .” (Id.)

This record conclusively establishes that Plaintiff not only

voluntarily consented to Defendant McClattie’s entry, but actually

invited her into his home because he believed doing so served his

interest, by giving him a better chance to talk her out of taking

temporary custody of his children. Plaintiff’s Fourth Amendment

claim therefore fails as a matter of law.

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Alternatively, Defendant McClattie has requested summary

judgment based on qualified immunity. (Docket Entry 43 at 14.)

“Qualified immunity from [Section] 1983 claims ‘protects government

officials from liability for civil damages insofar as their conduct

does not violate clearly established statutory or constitutional

rights of which a reasonable person would have known.’” Doe ex

rel. Johnson v. South Carolina Dep’t of Soc. Servs., 597 F.3d 163,

169 (4th Cir. 2010) (quoting Pearson v. Callahan, 555 U.S. 223, 231

(2009)). Put simply, qualified immunity “ensures that officials

are not unfairly strung up for money damages as a result of bad

guesses in gray areas [and] [i]t encourages capable citizens to

join the ranks of public servants by removing the threat of

constant litigation.” Braun v. Maynard, 652 F.3d 557, 560 (4th

Cir. 2011) (internal citation and quotation marks omitted).

“Determining whether qualified immunity applies involves a

two-prong inquiry: ‘whether the facts make out a violation of a

constitutional right’ and ‘whether the right at issue was ‘clearly

established’ at the time of defendant’s alleged misconduct.’” West

v. Murphy, 771 F.3d 209, 213 (4th Cir. 2014) (quoting Pearson, 555

U.S. at 232 (internal ellipsis omitted)).

For reasons discussed above, Defendant McClattie has

identified an absence of evidence to support Plaintiff’s claim of

unlawful deprivation of his constitutional rights and thus the

qualified immunity doctrine also defeats his claim.

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B. Official Capacity Claim

Lastly, Plaintiff’s official capacity claim against Defendant

McClattie constitutes a claim “against the governmental entity

employing [her],” Nivens v. Gilchrist, 444 F.3d 237, 249 (4th Cir.

2006), i.e., the Rowan County DSS. Assuming for purposes of

discussion only that the foregoing entity qualifies as a person

subject to suit under § 1983, “it must be shown that the actions of

[their employee] were unconstitutional and were taken pursuant to

a custom or policy of the entity.” Giancola v. State of W. Va.

Dep’t of Pub. Safety, 830 F.2d 547, 550 (4th Cir. 1987) (citing

Monell v. New York City Dep’t of Soc. Servs., 436 U.S. 658, 690–92,

(1978)). As detailed previously, the record does not support

Plaintiff’s allegations of unconstitutional actions taken by

Defendant McClattie. Further, the Complaint fails to allege facts

which (if accepted as true) would establish that any constitutional

violations occurred pursuant to a custom or policy of the Rowan

County DSS. (See Docket Entry 2 at 1-22.) Therefore, any official

capacity claim obviously fails as a matter of law.

III. Plaintiff’s Summary Judgment Motion

Plaintiff also moved for summary judgment. (See generally

Docket Entry 49.) For reasons discussed above, Defendant McClattie

has demonstrated entitlement to summary judgment. Further, as

Defendant McClattie correctly has contended, “Plaintiff d[id] not

offer any competent evidence in support of his motion for summary

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judgment. . . . [and he] completely ignore[d] his own sworn

deposition testimony . . . that is fatal to his case.” (Docket

Entry 50 at 3.) Simply put, Plaintiff’s motion does not alter the

record facts that establish Defendant McClattie’s entitlement to

summary judgment and that preclude entry of judgment in his favor.

CONCLUSION

The record compels the entry of judgment as a matter of law

for Defendant McClattie on Plaintiff’s individual and official

capacity claims.

IT IS RECOMMENDED that Defendant McClattie’s summary judgment

motion (Docket Entry 42) be granted and that Plaintiff’s summary

judgment motion (Docket Entry 49) be denied.

/s/ L. Patrick Auld

L. Patrick Auld

United States Magistrate Judge

July 17, 2020

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