Reynolds v. City of Raleigh et al
Filing
38
ORDER finding as moot 25 Motion to Seal Document 21 Memorandum in Support, 23 Memorandum in Support; granting in part and denying in part 17 Motion to Dismiss for Failure to State a Claim; granting in part and denying in part 20 Motion to Dismiss for Failure to State a Claim. Counsel is reminded to read the order in its entirety for critical deadlines and information. Signed by District Judge Louise Wood Flanagan on 3/27/2024. (Collins, S)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
NO. 5:23-CV-207-FL
KRYSTAL D. REYNOLDS,
Plaintiff,
v.
M.M. SINGH, individually and in his
official capacity as Officer of Raleigh
Police Department; RICHARD A.
GERGANOUS, individually and in his
official capacity as Officer of Raleigh
Police Department; and CITY OF
RALEIGH,
Defendants.
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ORDER
Plaintiff commenced this civil rights action by complaint filed April 18, 2023, against
defendants M.M. Singh (“Singh”), Richard A. Gerganous (“Gerganous”), and the City of Raleigh
(“Raleigh”).
Defendants Raleigh, and Singh and Gerganous in their official capacities
(collectively, the “city defendants”) and defendants Singh and Gerganous in their individual
capacities, bring separate motions to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6).
(DE 17, DE 20). Also pending is defendants Singh and Gerganous’s motion to seal state
magistrate’s orders submitted in support of their motion to dismiss. (DE 25). For the following
reasons, the city defendants’ motion to dismiss is granted in part and denied in part. Motion to
dismiss separately made by defendants Singh and Gerganous similarly is granted in part and denied
in part. Defendants Singh and Gerganous’s motion to seal is dismissed as moot.
STATEMENT OF THE CASE
Plaintiff asserts in the operative amended complaint, filed June 8, 2023, constitutional
claims under 42 U.S.C. § 1983 for false arrest, illegal search, and use of excessive force (Counts
I, II, and III) against defendants Singh and Gerganous and claims under the North Carolina State
Constitution (Count IV) against city defendants. Plaintiff brings a claim for false imprisonment
against defendant Singh (Count V), and trespass to land against both defendants Singh and
Gerganous (Count VI). Plaintiff claims for battery by defendant Singh and other officers (Count
VII), assault against defendants Singh and Gerganous (Count VIII), and negligent infliction of
emotional distress (Count IX). Plaintiff seeks also to recover against defendant Raleigh under §
1983 on account of its own constitutional violations accruing from illegal policies and practices
(Count X), and on the theory of respondeat superior for the assault, battery, and false imprisonment
variously pleaded against defendants Singh and Gerganous (Count XI).
Plaintiff seeks
compensatory and punitive damages, attorneys’ fees, interest, and costs.
City defendants argue that plaintiff has failed sufficiently to allege any § 1983 claim against
them, and her claims under North Carolina’s Constitution must fail because she has adequate state
remedies. Plaintiff’s claim based on respondeat superior fails with reference to defendants Singh
and Gerganous’s motion to dismiss directed against her claims for assault, battery, and false
imprisonment against them, individually.
In defense, defendants Singh and Gerganous raise the shield of immunity with respect to
the § 1983 claims and underlying state law claims. Plaintiff’s § 1983 claims and state law claims
for false imprisonment, trespass, battery, and assault also should be dismissed for substantive
reasons where, it is contended, probable cause existed, reasonable force was necessary to be used,
and plaintiff voluntarily consented to search. Defendants Singh and Gerganous rely on certain
2
orders entered by a state magistrate judge finding probable cause for her arrest for resisting a public
officer, and three counts of assault on a government official, which are the subject of the pending
motion to seal. Reliance also is placed upon corresponding judgment in that criminal case where
plaintiff pleaded guilty to three counts of assault.
Plaintiff seeks in responses to the motions before the court to distinguish between
defendants’ actions towards her before she entered into any physical altercation with police, and
those associated with that altercation. She contends her § 1983 claims all arose before any
altercation. Any consent she gave, plaintiff contends, was not free and voluntary but, rather, the
result of coercion. Immunity does not apply under the facts of this case, plaintiff argues, to the §
1983 claims or underlying state law claims. Plaintiff argues the doctrine of respondeat superior
liability remains viable.
Defendants Singh and Gerganous, with consent of plaintiff, were allowed to file under seal
a video exhibit containing clips from defendant Singh’s body worn camera (“BWC”) capturing the
encounter with plaintiff (“video”), to which reference is made in their reply.
STATEMENT OF FACTS
The relevant facts alleged in the complaint 1 may be summarized as follows. On the evening
of February 15, 2022, defendants Singh and Gerganous, officers with the Raleigh Police
Department (“RPD”), (compl. ¶ 8), responded to “a tip that two persons suspected of felony drug
possession entered plaintiff’s residence.” (Id. ¶ 9). The officers’ body-worn cameras captured
1
Hereinafter, all references to the “complaint” (“compl.”) are to the operative amended complaint (DE 10).
3
“[t]he majority of the dialogue between” defendants Singh and Gerganous and plaintiff, (id. ¶ 10),
and plaintiff’s “doorbell camera [also captured a] portion of the encounter.” (Id. ¶ 11).
“[A]t approximately 9:11pm,” defendant “Singh questioned . . . plaintiff in the street” in
front of her house, “asking [plaintiff] what she was doing and whether two people entered her
home.” (Id. ¶ 12). Plaintiff told defendants Singh and Gerganous “that she was replacing her Ring
camera battery . . . on her front porch, that no one entered her home, and . . . she was the only one
who resided in the residence with her pets.” (Id. ¶ 13).
“[A]t approximately 9:28pm,” two officers with the RPD, including defendant Singh,
returned to “[p]laintiff’s home and knocked on her door.” (Id. ¶ 14). Plaintiff answered her door
and “primarily [defendant] Singh . . . began questioning” her. (Id. ¶ 15). Defendant Singh said to
plaintiff, “[w]ho were the two guys that came in here?” and “[w]e know two guys came in here.”
(Id.). Plaintiff “answered the officers and told them no one had entered her home.” (Id. ¶ 16).
The officers “then asked to enter the home,” and plaintiff asked whether she was “supposed to do
that[.]” (Id. ¶ 17). Defendant Singh replied, “it’s up to you, I’m not saying you do, I’m not saying
you don’t[.]” (Id.).
Plaintiff “then told the officers that they could look around outside but that [plaintiff] was
not comfortable with them entering her house.” (Id. ¶ 18). Defendant Singh “then repeatedly
demanded” for plaintiff to “step outside her house.” (Id. ¶ 19). “Plaintiff refused,” (id. ¶ 20), and
defendant Singh “reached into the house, breaking the threshold, and forcibly grabbed . . .
[p]laintiff by the arm.” (Id. ¶ 21). Plaintiff “repeatedly told [defendant Singh] not to touch her or
grab her and asked” defendant Singh “to let her go.” (Id. ¶ 22). Defendant Singh “refused . . .
and, while grasping and pulling on [plaintiff’s] arm, continually demanded that she step outside[.]”
(Id. ¶ 23). Defendant Singh “then stated that [the officers] were getting a search warrant and that
4
no one was allowed in the house[.]” (Id. ¶ 24). Plaintiff “continued to ask [defendant Singh] to
let her go,” but defendant Singh “forcibly pull[ed] plaintiff out of her house.” (Id. ¶ 25).
Once on the front porch, “the officers continue[d] demanding that . . . [p]laintiff allow the
officers to search the house,” (id. ¶ 27), “bombard[ing]” her until eventually she “acquiesce[d] and
allow[ed] them entry.” (Id. ¶ 32). While conducting their search, “the [RPD] officers found two
individuals in the house.” (Id. ¶ 33). “After discovering the individuals, [defendant] Singh then
told . . . [p]laintiff that she was going over to his police car, either in cuffs or out of cuffs.” (Id.).
Plaintiff refused defendant Singh’s directions, “an altercation between the parties erupted,” (id.),
and “[p]laintiff . . . attempt[ed] to prevent the officers from handcuffing her.” (Id. ¶ 34). Plaintiff
told the officers “to leave her alone, to not touch her, and repeatedly ask[ed] . . . why she was being
arrested.” (Id.). The RPD officers stated that “[p]laintiff was . . . being arrested for assaulting an
officer and delaying an investigation by not voluntarily interacting with the officers.” (Id. ¶ 35).
Plaintiff responded that “she only fought the officers because they had no right to arrest her and
were assaulting her.” (Id. ¶ 36).
After being arrested, plaintiff “informed the officers that they were hurting her, pressing
the handcuffs into her wrists, and . . . injuring her by kneeling on and pressing into her knee and
pulling on her neck.” (Id.). Plaintiff sustained “severe bruises on her left arm and wrists . . . cuts
[on] her wrist[,] and a black eye,” and eventually sought medical treatment for these injuries and
mental health issues stemming from the encounter. (Id. ¶ 37).
Hearings in North Carolina state court ensued, and defendant Singh “testified that
[plaintiff] ha[d] no legal obligation to tell [him] if the men were in her home, to interact with the
officers, [or to] allow the officers to search her home.” (Id. ¶ 38). A finding that defendant Singh
5
lacked sufficient grounds to enter plaintiff’s home was made, and associated resist, delay, and
obstruct charges against plaintiff were dismissed. (See id. ¶ 26).
COURT’S DISCUSSION
A.
Motion to Seal
Filing of this motion engendered the clerk who acted August 2, 2023, in regular docket
review, to bring to the attention of defendants Singh and Gerganous the fact that repetitive filings
made by them through counsel the prior month contained prohibited information, with reference
to Rule 5.2 of the Federal Rules of Civil Procedure. The form notice stated that a temporary seal
of information on the public docket had been put in place for a period of seven days which would
be removed absent filing of the appropriate motion and redacted copies within that time period.
Defendants moved within the seven day period on August 8, 2023, with plaintiff’s consent, to
permanently seal what is denominated as “Exhibit 1”, state court magistrate’s orders filed in
support of their motion to dismiss. (DE 25).
Congress has required the Supreme Court to “prescribe rules . . . to protect privacy and
security concerns related to electronic filing of documents.”
Pub. L. No. 107-347, §
205(c)(3)(A)(i), 116 Stat. 2899, (2913–15). “To the extent that such rules provide for the redaction
of certain categories of information in order to protect privacy and security concerns, such rules
shall provide that a party that wishes to file an otherwise proper document containing information
may file an unredacted document under seal, which shall be retained by the court as part of the
record, and which, at the discretion of the court . . . shall be either in lieu of, or in addition, to, a
redacted copy in the public file.” Id. § 205(c)(3)(A)(iv).
In compliance with this congressional directive, Federal Rule of Civil Procedure 5.2
provides that “in an electronic or paper filing with the court that contains an individual’s social-
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security number, taxpayer-identification number, or birth date . . . a party or nonparty making the
filing may include only: (1) the last four digits of the social-security number and taxpayeridentification number; [or] (2) the year of the individual’s birth.” Fed.R.Civ.P. 5.2(a).
Where as here, defendants Singh and Gerganous filed unredacted magistrate’s orders
containing plaintiff’s birth date in full (see, e.g., DE 23-1 at 2, 5), as well as her state driver’s
license number (see id.), Exhibit 1 falls under the purview of Rule 5.2(a) and the corresponding
statutory provision at § 205(c)(3)(A)(iv). “[T]he United States Code includes a myriad of statutes
where Congress has mandated the sealing of certain sensitive information filed with a court.” Am.
Civil Liberties Union v. Holder, 673 F.3d 245, 257–58 n.8 (4th Cir. 2011) (listing § 205 and Rule
5.2 as examples).
Thus, under this authority, the unredacted version of Exhibit 1 (DE 21-1, DE 23-1) filed in
support of defendants Singh and Gerganous’s motion to dismiss shall be maintained under seal.
The redacted version of Exhibit 1 (DE 24) is received in the record and made publicly available in
accord with Rule 5.2 and § 205(c)(3)(A)(iv). 2
In the redacted version plaintiff’s date and month of birth, together with her driver’s license
number repeatedly appearing have been removed. Also removed is the F.B.I. file number assigned,
the inclusion of which on the public docket the court assumes without deciding could be said also
to violate the rule.
The clerk’s August 2, 2023, notice of deficiency refers to a waiver by defendants of the
right to keep this information sealed if no motion was filed by August 9, 2023. Action was
The court previously granted defendant Singh and Gerganous’s motion to permanently seal the BWC footage
in its December 7, 2023, order. This was based on the recognition that the BWC footage includes images of witnesses
on the scene, including an informant, upon whose statements the RPD officers relied in conducting their investigation,
and potential subjects in other criminal investigations. Where the exhibit is a video not capable of redaction, the court
determined that no less drastic alternative to sealing exists.
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necessary to be taken by defendants Singh and Gerganous’s counsel to correct error made but it is
not correct to say these defendants could waive congressional edict codified by procedural rule
making private certain of plaintiff’s personal information. For this reason, motion to seal made by
defendants Singh and Gerganous is DISMISSED as MOOT.
B.
Motions to Dismiss
1.
Standard of Review
“To survive a motion to dismiss” under Rule 12(b)(6), “a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). 3 “Factual allegations must be enough to raise a right to relief above the speculative level.”
Twombly, 550 U.S. at 555. In evaluating whether a claim is stated, “[the] court accepts all wellpled facts as true and construes these facts in the light most favorable to the plaintiff,” but does not
consider “legal conclusions, elements of a cause of action, . . . bare assertions devoid of further
factual enhancement[,] . . . unwarranted inferences, unreasonable conclusions, or arguments.”
Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir. 2009).
2.
Analysis
The court starts with consideration of arguments made with reference to plaintiff’s claims
against defendants Singh and Gerganous.
a.
Claims Against Defendants Singh and Gerganous
Plaintiff brings Fourth Amendment claims under 42 U.S.C. § 1983 for false arrest, illegal
search, and use of excessive force against defendants Singh and Gerganous. Defendants Singh
3
Internal citations and quotation marks are omitted from all citations unless otherwise specified.
8
and Gerganous assert a defense of qualified immunity to all of plaintiff’s Fourth Amendment
claims. “To overcome an official’s claim of qualified immunity, the plaintiff must show: ‘1) that
the official violated a statutory or constitutional right, and 2) that the right was clearly established
at the time of the challenged conduct.’” Attkisson v. Holder, 925 F.3d 606, 623 (4th Cir. 2019)
(quoting Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011)). The court “may address these two
questions in the order . . . that will best facilitate the fair and efficient disposition of each case.”
Raub v. Campbell, 785 F.3d 876, 881 (4th Cir. 2015).
Plaintiff also brings state law claims for false imprisonment, trespass to land, battery,
assault, and negligent infliction of emotional distress variously pleaded against defendants Singh
and Gerganous. Defendants Singh and Gerganous assert that public official immunity bars all of
plaintiff’s state law claims, and alternatively, that plaintiff has failed to state a plausible claim for
relief under state law for the same reasons her claims under federal law fail.
i.
Claims against Defendant Gerganous
As a threshold matter, where none of the complaint’s allegations are proffered against
defendant Gerganous individually, all claims against defendant Gerganous must be dismissed.
“Courts have been critical of complaints that fail to isolate the allegedly unconstitutional acts of
each defendant, or that make only categorical references to defendants.” Langford v. Joyner, 62
F.4th 122, 125 (4th Cir. 2023); see also King v. Riley, 76 F.4th 259, 269 (4th Cir. 2023) (“As
liability here is personal, a complaint must contain specific allegations of each individual’s
conduct[.]”).
While plaintiff’s complaint mentions defendant Gerganous generally, it only asserts
specific factual allegations against defendant Singh. (See generally compl.); see also Langford,
62 F.4th at 125 (“The courts have reasoned that requiring specific factual allegations for each
9
defendant gives fair notice to that defendant of the plaintiff’s claim and the underlying factual
support.”). Accordingly, all claims against defendant Gerganous are dismissed.
ii.
Section 1983 Claim for False Arrest
Plaintiff alleges that defendant Singh violated the Fourth Amendment when he unlawfully
seized plaintiff by grabbing plaintiff’s arm while she stood in the doorway of her home and pulled
her outside. In response, defendant Singh asserts a defense of qualified immunity and argues that
his initial seizure of plaintiff does not provide a basis for a false arrest claim because the seizure
was supported by reasonable suspicion. The court disagrees.
The court first addresses whether plaintiff has pleaded facts plausibly alleging “that the
official violated a statutory or constitutional right.” Attkisson, 925 F.3d at 623. Section 1983
claims for false arrest properly are evaluated under the Fourth Amendment. See Rogers v.
Pendleton, 249 F.3d 279, 294 (4th Cir. 2001) (providing that claims of false arrest and false
imprisonment “are essentially claims alleging a seizure of the person in violation of the Fourth
Amendment”). To establish a § 1983 claim based on the Fourth Amendment for false arrest, a
plaintiff must show that the seizure was made without probable cause. See Massey v. Ojaniit, 759
F.3d 343, 356 (4th Cir. 2014). Probable cause exists when, under the totality of the circumstances,
there is a “fair probability” that criminal activity has taken place. Illinois v. Gates, 462 U.S. 213,
246 (1983).
Even when probable cause exists, however, “[i]t is a basic principle of Fourth Amendment
law . . . that searches and seizures inside a home without a warrant are presumptively
unreasonable.” Kentucky v. King, 563 U.S. 452, 459 (2011); see also Carroll v. United States,
267 U.S. 132, 153 (1925) (recognizing that a heightened standard for searches of and seizures
inside homes has existed “practically since the beginning of the government”). “[I]t is a settled
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rule that warrantless arrests in public places are valid, but, absent another exception such as exigent
circumstances, officers may not enter a home to make an arrest without a warrant, even when they
have probable cause.” Collins v. Virginia, 584 U.S. 586, 595–96 (2018). “[P]olice officers need
either a warrant or probable cause plus exigent circumstances in order to make a lawful entry into
a home.” Kirk v. Louisiana, 536 U.S. 635, 638 (2002) (emphasis added).
Plaintiff has alleged sufficient facts to plausibly infer that defendant Singh seized her from
her home in violation of the Fourth Amendment. The court has relied on the BWC footage “in the
event of conflict between the bare allegations of the complaint and” the footage. Goines v. Valley
Cmty. Servs. Bd., 822 F.3d 159, 166 (4th Cir. 2016). As for those portions of the complaint not
“clearly or blatantly contradicted” by the BWC footage, see Witt v. West Virginia, 633 F.3d 272,
277 (4th Cir. 2011), the court “accept[s] the complaint’s factual allegations as true and draw[s] all
reasonable inferences in favor of the plaintiff.” Starbuck v. Williamsburg James City Cnty. Sch.
Bd., 28 F.4th 529, 532 (4th Cir. 2022).
“[T]he common law consider[s] the application of force to the body of a person with intent
to restrain to be an arrest[.]” Torres v. Madrid, 592 U.S. 306, 311–12 (2021); see also California
v. Hodari D., 499 U.S. 621, 624 (1991) (“To constitute an arrest . . . the mere grasping or
application of physical force with lawful authority, whether or not it succeeded in subduing the
arrestee, was sufficient.”). And, “[c]ommon law arrests are Fourth Amendment seizures.” Torres,
592 U.S. at 311. Defendant Singh does not challenge that he effected a common law arrest when
he reached across plaintiff’s door and grabbed plaintiff by the arm. (See generally DE 23, DE 33).
Here, plaintiff alleges that defendant Singh returned to knock on plaintiff’s door and ring
her doorbell more than fifteen minutes after first arriving on the scene. (Compl. ¶¶ 12, 14). After
plaintiff answered her door and following a brief verbal exchange, plaintiff alleges that defendant
11
Singh “repeatedly demanded that . . . [p]laintiff step outside her house.” (Id. ¶¶ 16–19). Plaintiff
alleges that she refused to do so and defendant Singh proceeded to “reach[] into the house, break[]
the threshold, and forcibly grab[] . . . [p]laintiff by her arm.” (Id. ¶¶ 20–21). Plaintiff asserts that
she repeatedly “told the officer not to touch her or grab her and asked the officer to let her go.”
(Id. ¶ 22).
While plaintiff alleges that defendant Singh “refused to let . . . [p]laintiff go,” (id. ¶ 23),
the BWC footage shows that defendant Singh physically disengaged from plaintiff but repeatedly
told her to “step out real quick.” (Video 0:31:07–14). Defendant Singh then said to plaintiff, “if
we’re getting a search warrant, then no one is allowed in this house right now.” (Id. at 0:31:15–
18). While the footage is not clear, it appears that defendant Singh grasped plaintiff’s arm a second
time as she stood in the threshold of her doorway, twice stating, “let’s step out right here.” (Id. at
0:31:15–21). As defendant Singh made contact, plaintiff responded, “don’t grab me” and “please
don’t” before defendant Singh stated, “ok, if you don’t want me to grab you, then we’re stepping
out.” (Id. at 0:31:20–24).
In both instances where defendant Singh grabbed plaintiff’s arm, the complaint alleges,
and the BWC footage shows, that defendant Singh “by means of physical force or show of
authority, terminate[d] or restrain[ed] [plaintiff’s] freedom of movement.” Brendlin v. California,
551 U.S. 249, 254 (2007). Defendant Singh repeatedly directed plaintiff to “step out” and stated
that he would only cease “grabbing” plaintiff if she exited her home. See Torres, 592 U.S. at 317
(“A seizure requires the use of force with intent to restrain.”) (emphasis omitted). That defendant
Singh’s contact with plaintiff’s arm was relatively brief does not alter the analysis; “a mere touch
can be enough for a seizure.” Id.; see also Kaupp v. Texas, 538 U.S. 626, 629 (2003) (“A seizure
of the person within the meaning of the Fourth . . . Amendment occurs when, taking into account
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all of the circumstances surrounding the encounter, the police conduct would have communicated
to a reasonable person that he was not at liberty to ignore the police presence and go about his
business.” Thus, defendant Singh’s multiple contacts with plaintiff’s arm constituted a seizure.
Still, “[t]he Fourth Amendment does not forbid all or even most seizures – only
unreasonable ones.” Torres, 592 U.S. at 325. As the Supreme Court has remarked, “searches and
seizures inside a home without a warrant are presumptively unreasonable.” Brigham City, Utah
v. Stuart, 547 U.S. 398, 403 (2006). Here, when defendant Singh initially contacted plaintiff’s
right arm, plaintiff alleges that defendant Singh broke the threshold of her front doorway and
reached into her home. (See compl. ¶ 21). Additionally, immediately after grabbing plaintiff’s
arm the second time, defendant Singh states “I don’t want you in the house at this point.” (Video
0:31:28–29) (emphasis added). Thus, where plaintiff’s exact location within her front doorway is
unclear, and construing all well-pleaded allegations in plaintiff’s favor, the court infers that
plaintiff was standing in her house when defendant Singh grabbed her. 4
Defendant Singh asserts that he had reasonable suspicion “to justify a temporary detention
of [p]laintiff for investigative purposes,” (DE 33 at 5), and cites to cases that define the reasonable
suspicion standard and reference the circumstances where an informant’s tip can give rise to
reasonable suspicion. (See generally id. at 5–8). The cases defendant Singh relies upon do not
address the requirement that police officers obtain “either a warrant or probable cause plus exigent
circumstances in order to make a lawful entry into a home.” Kirk, 536 U.S. at 638; see also Payton
v. New York, 445 U.S. 573, 586 (1980) (“[T]he physical entry of the home is the chief evil against
To the extent that the front doorway of plaintiff’s home is better considered as “curtilage,” the analysis
remains the same. “[T]he curtilage . . . warrants the Fourth Amendment protections that attach to the home.” Oliver
v. United States, 466 U.S. 170, 180 (1984); see also Rogers, 249 F.3d at 287 (affirming the district court’s
determination that “searches of the curtilage are permissible only when probable cause plus either a warrant or exigent
circumstances exist.”).
4
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which the wording of the Fourth Amendment is directed.”); Silverman v. United States, 365 U.S.
505, 511 (1961) (“At the very core [of the Fourth Amendment] stands the right of a man to retreat
into his own home and there be free from unreasonable governmental intrusion.”). Therefore, in
the absence of a warrant and where defendant Singh does not assert exigent circumstances or some
other exception to the Fourth Amendment’s warrant requirement, the well-pleaded assertions in
plaintiff’s complaint and the BWC footage plausibly allege that defendant Singh violated
plaintiff’s Fourth Amendment right to be free from unreasonable seizures. 5
The court turns to the second prong of the qualified immunity analysis. Having found that
plaintiff has pleaded facts alleging a constitutional violation, defendant Singh bears the burden of
showing “that the right was not clearly established at the time [his] conduct occurred.” Wingate
v. Fulford, 987 F.3d 299, 311 (4th Cir. 2021). “The relevant, dispositive inquiry in determining
whether a right is clearly established is whether it would be clear to a reasonable officer that his
conduct was unlawful in the situation he confronted.” Goines, 822 F.3d at 170. “Because the
focus is on whether the officer had fair notice that her conduct was unlawful, reasonableness is
judged against the backdrop of the law at the time of the conduct.” Kisela v. Hughes, 584 U.S.
100, 104 (2018). This “do[es] not require a case directly on point, but existing precedent must
have placed the . . . constitutional question beyond debate.” Al-Kidd, 563 U.S. at 741.
While defendant Singh argues he had reasonable suspicion to temporarily detain plaintiff
based on an informant’s tip, “the Fourth Amendment has drawn a firm line at the entrance to the
house.” Payton, 445 U.S. at 590. “Absent exigent circumstances, that threshold may not
reasonably be crossed without a warrant.” Id. Here, seeking to remove plaintiff from her home,
The parties spend considerable time in their briefing assessing the reliability of the tip proffered by the
informant at the scene. However, in assessing plaintiff’s false arrest claim, the court need not decide whether the facts
alleged in the complaint and the BWC footage suggest that the informant’s tip supported the officers’ reasonable
suspicion or probable cause.
5
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defendant Singh reached across plaintiff’s front door and grabbed plaintiff’s right arm on two
occasions. Defendant Singh initially approached plaintiff in her front yard nearly 15 minutes after
arriving on scene and returned to plaintiff’s home almost 30 minutes into his investigation. While
defendant Singh may have had good reason to approach plaintiff, a reasonable officer in defendant
Singh’s position would have known that plaintiff “had a clearly established right to be free of the
officers’ [seizure in her] home, absent probable cause plus either a warrant or exigent
circumstances.” Rogers, 249 F.3d at 290.
Defendant Singh thus is not entitled to qualified immunity on his motion to dismiss with
regard to plaintiff’s false arrest claim arising from defendant Singh’s initial contacts with plaintiff. 6
iii.
Section 1983 Claim for Illegal Search
Plaintiff claims that defendant Singh violated the Fourth Amendment when he, alongside
other officers with the RPD, unlawfully searched plaintiff’s home after plaintiff involuntarily
consented. In response, defendant Singh argues that plaintiff voluntarily consented to the search
and, alternatively, asserts a defense of qualified immunity. The court agrees with defendant Singh.
The court’s analysis here turns on the second prong of the qualified immunity analysis.
While the court must accept all of plaintiff’s well-pleaded allegations as true and construe all
inferences in her favor, “the purely legal question of whether the constitutional right at issue was
clearly established is always capable of decision at the summary judgment stage or on a motion to
dismiss.” Ray v. Roane, 948 F.3d 222, 228 (4th Cir. 2020).
In that part where plaintiff’s complaint asserts a Fourth Amendment violation after the officers conducted a
search of plaintiff’s home and formally arrested plaintiff for resisting an officer, see N.C. Gen. Stat. § 14-223, and
three counts of assault on a government official, see N.C. Gen. Stat. § 14-33(C)(4), those claims have been abandoned
where plaintiff failed to address them in her response in opposition to defendant Singh and Gerganous’s motion to
dismiss. In any event, plaintiff has failed to allege facts that show it was “obvious no reasonably competent officer
would have concluded that a warrant should issue.” Malley v. Briggs, 475 U.S. 335, 341 (1986).
6
15
It is clearly established that the Fourth Amendment prohibits warrantless searches absent
voluntary consent. See United States v. Lattimore, 87 F.3d 647, 650 (4th Cir. 1996) (en banc); see
also Covey v. Assessor of Ohio Cnty., 777 F.3d 186, 196 (4th Cir. 2015) (quoting Groh v. Ramirez,
540 U.S. 551, 564 (2004) (“[T]he Supreme Court has held that no reasonable officer can ‘claim to
be unaware of the basic rule, well established by our cases, that, absent consent or exigency, a
warrantless search of the home is presumptively unconstitutional.’”). Procurement of voluntary
consent “from the individual whose property is searched,” however, renders such search lawful.
Illinois v. Rodriguez, 497 U.S. 177, 181 (1990). Consent to search is valid if it is (1) knowing and
voluntary, and (2) given by one with authority to consent.” United States v. Buckner, 473 F.3d
551, 554 (4th Cir. 2007). “[W]hether a consent to a search was in fact voluntary or was the product
of duress or coercion, express or implied, is a question of fact to be determined from the totality
of all the circumstances.” Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973). “Whether the
individual searched was informed of his right to decline the search is a highly relevant factor” in
determining whether consent to search is knowing and voluntary. United States v. Robertson, 736
F.3d 677, 680 (4th Cir. 2013); see also United States v. Mendenhall, 446 U.S. 544, 558–59 (1980)
(“Although the Constitution does not require proof of knowledge of a right to refuse as the sine
qua non of an effective consent to search, such knowledge was highly relevant to the determination
that there had been consent.”).
Here, the complaint alleges plaintiff allowed the officers to search her home. (See compl.
¶ 32); (see also Video 0:30:05–12 (after defendant Singh asked plaintiff if the officers could enter
and search her home, plaintiff asked if “she’s supposed to do that” to which defendant Singh
replied that “it’s up to you. I’m not saying you do. I’m not saying you don’t.”)).
16
Plaintiff suggests that her consent was not voluntary because officers allegedly “stated that
[the officers] were getting a search warrant and that no one was allowed in the house.” (Compl. ¶
24). But that allegation is contradicted by the BWC footage where defendant Singh told plaintiff,
“if we’re getting a search warrant, then no one is allowed in this house right now.” (Video 0:31:15–
18) (emphasis added). While consent is ineffective when given “only after the official conducting
the search has asserted that he possesses a warrant,” Bumper v. United States, 391 U.S. 543, 548
(1968), an officer’s truthful statement that officers may get a search warrant in the future is “not
the type of coercion that threatens to render [consent] involuntary.” United States v. Pelton, 835
F.2d 1067, 1073 (4th Cir. 1987); see also United States v. Elie, 111 F.3d 1135, 1146 (4th Cir.
1997) (“The police can give a defendant truthful information, even if that information forces the
defendant to make a choice between two unpleasant alternatives.”); United States v. Whitehead,
428 F.Supp.2d 447, 452 (E.D. Va. 2006) (finding that consent was voluntary where the defendant
provided it only after officers told her they could get a search warrant).
Plaintiff emphasizes that she was allegedly unlawfully seized from her home by defendant
Singh and then “bombarded” by defendant Singh and other officers outside her home, arguing that
these interactions rendered her consent involuntary. (See compl. ¶ 32 (“Despite already having
been forcefully removed from the house, refusing to allow the officers in areas of the home,
[d]efendants continue[d] to bombard [plaintiff] until she acquiesce[d] and allow[ed] them
entry.”)); (see also DE 27 at 9 (“Only after [p]laintiff’s will was overborne through violence,
seizure, intimidation, repeated accusations and demands for consent did . . . [p]laintiff give-in.”)).
In civil cases, however, unlawful detentions or seizures do not automatically make succeeding
statements of consent involuntary. See United States v. Boone, 245 F.3d 352, 363 (4th Cir. 2001)
(“These factors suggest that Boone’s will was not overborne and that his consent was voluntary,
17
even if the Terry stop exceeded permissible bounds.”); see also Hyatt, et al. v. Miller, et al., No.
1:19-cv-00250, 2021 WL 535856, at *17 n.11 (W.D.N.C. Feb. 12, 2021) (“The Fourth Circuit and
several other Courts of Appeals have held that consent can be voluntary even if it is procured
during an illegal detention, provided that the totality of the circumstances confirms that the consent
was not coerced.”).
Plaintiff’s attempt to distinguish her case from Lattimore, in which the United States Court
of Appeals for the Fourth Circuit found that the defendant’s consent was voluntary in significant
part because it was procured only “after the officer had issued the citations and returned
Lattimore’s driver’s license, indicating that all business with Lattimore was completed and that he
was free to leave,” is unsuccessful. 87 F.3d at 653. Plaintiff argues in effect that she did not feel
free to “decline the officer’s requests or otherwise terminate the encounter,” id., because “three
armed officers, including [defendant] Singh” repeatedly demanded to search the house and
defendant Singh himself “never allow[ed] [plaintiff] to disengage from the officers or return into
her home.” (Compl. ¶¶ 28, 30). However, the BWC footage shows that during the brief period
defendant Singh was with plaintiff outside her home, no officer requested permission to search
plaintiff’s residence. (Video 0:31:41–32:55). 7 Additionally, plaintiff asserts that she continued to
refuse the officers’ persistent requests to search her home once she was outside. (See compl. ¶¶
28, 29 (“Plaintiff [was] told to sit on a box on the front porch and . . . indicate[d] that she [was]
uncomfortable with allowing the officers into her home.”)); (see also DE 27 at 9 (“Plaintiff denied
requests for consent to search, but the officers remained headstrong.”)). Plaintiff’s refusal to
Just over a minute after plaintiff exited her home, defendant Singh walked away and instructed plaintiff to
“just hang tight with these officers.” (Video 0:32:54–56). By the time defendant Singh returned to plaintiff outside
her front door, other officers on the scene were escorting two individuals out of plaintiff’s home. (Id. at 0:39:55–
0:40:18). Thus, the BWC footage shows that defendant Singh was not present when plaintiff consented to the search
of her home, nor did he personally conduct the search of plaintiff’s home. (Id. at 0:32:57–0:39:51).
7
18
consent to a search of her home even after she was seized suggests that she was aware of her right
to refuse. See Elie, 111 F.3d at 1145 (revocation of consent demonstrated defendant knew of his
right to refuse consent); see also Boone, 245 F.3d at 362 (limitation of consent suggested defendant
knew he could refuse consent); see also Whitehead, 428 F.Supp.2d at 452 (“Such an initial refusal
to search is evidence that Mrs. Whitehead knew of her constitutional right to refuse consent.”).
Thus, this case bears some of the hallmarks in Lattimore where plaintiff “felt free to decline the
officer’s requests.” 87 F.3d at 653.
Plaintiff’s additional allegations that she was previously restrained by officers do not show
that defendant Singh violated plaintiff’s Fourth Amendment rights. See Elie, 111 F.3d at 1145
(“[A]s we previously noted, neither the drawing of a gun by an arresting officer, nor the
handcuffing of the accused establishes involuntariness in and of itself.”). Nor do plaintiff’s
assertions that she was unlawfully pressured where she was “towered over” by “three armed
officers” and “subjected to intimidation, repeated accusations[,] and demands for consent.”
(Compl. ¶ 28); (DE 27 at 9). Repeated demands to search or the presence of multiple armed
officers do not necessarily make out a Fourth Amendment violation. See United States v. AzuaRinconada, 914 F.3d 319, 324 (4th Cir. 2019) (concluding that the officer’s statement, “open the
door or we’re going to knock it down,” did not “fatally infect the voluntariness of the consent”);
see also Elie, 111 F.3d at 1145 (“Moreover, although there were at least six officers present when
Elie granted his consent to search, nothing in the record indicates an environment that was coercive
or intimidating.”). And other facts proffered by plaintiff, including that plaintiff is a woman who
was surrounded by an all-male group of officers and had PTSD stemming from prior police
interactions, are “not irrelevant, [but] neither [are] they decisive.” Mendenhall, 446 U.S. at 558.
19
Thus, viewing the facts in the light most favorable to plaintiff where not “clearly or
blatantly contradicted” by the BWC footage, the scenario facing defendant Singh when plaintiff
consented to the search of her home was not one that would cause a reasonable officer to
understand his conduct as violative of plaintiff’s Fourth Amendment right against an illegal search,
as clearly established by then-controlling law. “[I]f a reasonable officer possessing the same
particularized information as [defendant Singh] could have, in light of [then-controlling law],
believed that his conduct was lawful, then [defendant Singh] is entitled to qualified immunity.”
McLenagan v. Karnes, 27 F.3d 1002, 1007 (4th Cir. 1994) (emphasis omitted); see also Hyatt,
2021 WL 535856, at *18 (“Therefore, even if a jury could find the totality of these combined
circumstances sufficient to negate consent, it was not clearly established that employment of such
combination of actions in order to secure consent violated constitutional norms.”).
In sum, defendant Singh is entitled to qualified immunity as to plaintiff’s illegal search
claim pursuant to § 1983 on his motion to dismiss.
iv.
Section 1983 Claim for Excessive Force
Plaintiff next claims that defendant Singh violated the Fourth Amendment when 1) he
“forcibly grabbed” and “forcibly pull[ed],” plaintiff out of her home, and 2) formally arrested
plaintiff after the discovery of two individuals in her home. In response, defendant Singh argues
that plaintiff has failed plausibly to allege a Fourth Amendment violation for use of excessive
force, and thus, defendant Singh is entitled to qualified immunity. The court agrees with defendant
Singh, finding that plaintiff failed plausibly to allege a constitutional violation with regard to this
claim.
“[A]ll claims that law enforcement officers have used excessive force . . . in the course of
an arrest, investigatory stop, or other ‘seizure’ of a free citizen should be analyzed under the Fourth
20
Amendment and its ‘reasonableness’ standard.” Graham v. Connor, 490 U.S. 386, 395 (1989);
Hupp v. Cook, 931 F.3d 307, 321 (4th Cir. 2019) (“[P]olice officers are constitutionally permitted
to use only that force which is reasonable under the circumstances.”). “The ‘reasonableness’ of a
particular use of force must be judged from the perspective of a reasonable officer on the scene[.]”
Graham, 490 U.S. at 396; see also Kingsley v. Hendrickson, 576 U.S. 389, 399 (2015) (“[A] court
must judge the reasonableness of the force used from the perspective and with the knowledge of
the defendant officer.”).
The court must consider the following factors: “1) the severity of the crime at issue, 2)
whether the suspect poses an immediate threat to the safety of the officers or others, and 3) whether
he is actively resisting arrest or attempting to evade arrest by flight.” Graham, 490 U.S. at 396
(hereinafter, the “Graham factors”). In addition, the court may consider “[t]he relationship
between the need for the use of force and the amount of force used; the extent of the plaintiff’s
injury; any effort made by the officer to temper or to limit the amount of force.” Kingsley, 576
U.S. at 397. “Ultimately, [the court] must decide whether the totality of the circumstances
justifie[d] a particular sort of . . . seizure.” Hupp, 931 F.3d at 322.
The complaint does not allege facts permitting an inference that defendant Singh’s seizure
by reaching across plaintiff’s front door and grabbing her by the arm constituted excessive force.
As a threshold matter, the court rejects plaintiff’s argument that “because the seizure itself was
effected in violation of the Fourth Amendment, . . . any force used to effect that seizure was
unlawful (or excessive).” (DE 27 at 7); see Hupp, 931 F.3d at 322 (dispensing with the same
argument).
The Graham factors weigh in favor of plaintiff. On the first factor, while defendant Singh
asserts he had reasonable suspicion to detain plaintiff, his briefs fail to allege plaintiff’s suspected
21
crime at the time he grabbed plaintiff in her front doorway. See Turmon v. Jordan, 405 F.3d 202,
207 (4th Cir. 2005) (“[T]he severity of the crime cannot be taken into account because there was
no crime.”); see also Hupp, 931 F.3d at 322 (“[W]e may consider any lack of probable cause for
the arrest as we evaluate the reasonableness of the force used.”). Thus, where defendant Singh
allegedly seized plaintiff in violation of the Fourth Amendment despite plaintiff’s lack of criminal
activity, the first Graham factor “weighs heavily in [plaintiff]’s favor.” Est. of Armstrong ex rel.
Armstrong v. Vill. of Pinehurst, 810 F.3d 892, 899 (4th Cir. 2016). As to the second Graham
factor, defendant Singh does not argue that the suspect “pose[d] an immediate threat to the safety
of the officers or others,” nor are there facts that would support such a conclusion. Graham, 490
U.S. at 396. As for the third Graham factor, while plaintiff was not compliant with defendant
Singh’s instructions to “step out” of her house, plaintiff has plausibly alleged that defendant
Singh’s demands and actions in seizing plaintiff from her home were unlawful absent a warrant or
exigent circumstances. See Est. of Armstrong, 810 F.3d at 901 (“Noncompliance with lawful
orders justifies some use of force, but the level of justified force varies based on the risks posed
by the resistance.”) (emphasis added).
Still, these factors are not exclusive and serve “to illustrate the types of objective
circumstances potentially relevant to a determination of excessive force.” Kingsley, 576 U.S. at
397. “The nature of the intrusion on a plaintiff’s Fourth Amendment rights is generally measured
by the amount of force employed to effect the seizure.” Brockington v. Boykins, 637 F.3d 503,
506 (4th Cir. 2011); see also Smith v. Ray, 781 F.3d 95, 101 (4th Cir. 2015) (“To properly consider
the reasonableness of the force employed we must view it in full context, with an eye toward the
proportionality of the force in light of all the circumstances.”). Here, defendant Singh’s initial
contact with plaintiff’s right arm appears to have lasted for no more than three seconds, (see Video
22
0:31:02–05), and again, while the BWC footage is not clear, defendant Singh’s second contact
with plaintiff’s arm appears to have lasted for no more than a few seconds. (See id. at 0:31:15–
21). Nor does plaintiff specifically allege any physical injuries arising from this initial seizure.
See Buchanan v. Jones, 325 F.3d 520, 527 (4th Cir. 2003) (“The extent of the plaintiff’s injury is
also a relevant consideration.”).
Additionally, the Supreme Court has squarely addressed whether officers can “be held
liable for injuries caused by the seizure on the ground that they committed a separate Fourth
Amendment violation that contributed to their need to use force[.]” Cnty. of Los Angeles,
California v. Mendez, 581 U.S. 420, 422–23 (2017). There, the Supreme Court held that “[a]
different Fourth Amendment violation cannot transform a later, reasonable use of force into an
unreasonable seizure.” Id. at 423; see also Cortez v. McCauley, 478 F.3d 1108, 1126 (10th Cir.
2007) (“[I]n a case where police effect an arrest without probable cause or a detention without
reasonable suspicion, but use no more force than would have been reasonably necessary if the
arrest or detention were warranted, the plaintiff has a claim for unlawful arrest or detention but not
an additional claim for excessive force.”).
While the court accepts the complaint’s well-pleaded factual allegations where not “clearly
or blatantly contradicted” by the BWC footage, the footage does not support plaintiff’s allegations
that defendant Singh “refused to let . . . go, while grasping and pulling on [plaintiff’s] arm,”
(compl. ¶ 23) or that he “overpower[ed] . . . [p]laintiff, forcibly pulling [her] out of her house.”
(Id. ¶ 25). Effectively, plaintiff is attempting to graft an excessive force claim onto her false arrest
claim. See Mendez, 581 U.S. at 431 (“[T]here is no need to dress up every Fourth Amendment
claim as an excessive force claim.”). Plaintiff does not allege that defendant Singh’s contacts with
her arm would have been unconstitutional had “the arrest or the detention [been] warranted.”
23
Cortez, 478 F.3d at 1126. “An excessive force claim . . . is not a claim that an officer used
reasonable force after committing a distinct Fourth Amendment violation such as an unreasonable
entry.” Mendez, 581 U.S. at 431; see also Richmond v. Badia, 47 F.4th 1172, 1180 (11th Cir.
2022) (“Unlike a genuine excessive force claim, an artificial excessive force claim – that force was
excessive merely because another Fourth Amendment violation occurred – is subsumed in the
illegal stop or arrest claim and is not a discrete excessive force claim.”).
Thus, where plaintiff’s excessive force claim alleges that defendant Singh briefly grabbed
plaintiff in her home part and parcel with the allegedly unlawful seizure, plaintiff does not
plausibly allege a separate Fourth Amendment violation for excessive force.
The court also rejects plaintiff’s excessive force claim as it relates to plaintiff’s formal
arrest following the discovery of two individuals in her home. Plaintiff relies on State v. Mobley,
240 N.C. 476, 478 (1954), for the proposition that “every person has the right to resist an unlawful
arrest.” However, where the court has found that qualified immunity bars plaintiff’s illegal search
claim, that argument is unavailing. 8
Further, the Graham factors weigh in favor of defendant Singh. Turning to the severity of
the crime at issue, the court assumes without deciding that here, resisting a public officer, should
be considered minor because plaintiff did not act violently before the confrontation turned physical
when defendant Singh attempted to arrest her. However, defendant Singh also proffers state
magistrate’s orders as an exhibit to his motion to dismiss finding probable cause for both resisting
a public officer and assault on a government official, which is a severe offence under the Graham
factors. See Hicks v. City of Lynchburg, ––– F. Supp. 3d ––––, 2023 WL 6456488, at *8 (W.D.
Plaintiff argues that she had a right to resist her formal arrest under Mobley because defendant Singh was
“attempting to execute a formal arrest on the basis of an unlawful search.” (DE 27 at 11). In turn, the court addresses
this argument alone.
8
24
Va. 2023); Thompson v. Badgujar, No. 20-cv-1272, 2021 WL 3472130, at *7 (D. Md. Aug. 6,
2021); N.C. Gen. Stat. § 14-34.7 (establishing assault on a law enforcement officer as a felony).
“Artificial divisions in the sequence of events do not aid a court’s evaluation of objective
reasonableness.” Rowland v. Perry, 41 F.3d 167, 173 (4th Cir. 1994). Plaintiff submits that she
“fought the officers” (compl. ¶ 36), and the magistrate’s orders state that plaintiff “did assault and
strike” three officers on the scene. (See DE 23-1 at 2). This first factor therefore weighs against
a conclusion of excessive force.
Second, plaintiff posed a threat to the officers and others because she physically assaulted
defendant Singh and the other officers, for the same reasons discussed with reference to the first
Graham factor above.
Third, plaintiff actively resisted arrest. During the struggle between plaintiff and defendant
Singh, the magistrate found probable cause that plaintiff kicked officers multiple times and
“attempted to bite and picked up a rock and tried to swing it at” defendant Singh. (Id.). Plaintiff’s
complaint does not dispute that she “resisted” and although the BWC footage is ambiguous, it
shows a clear struggle where defendant Singh told plaintiff to “chill out” and “if you bite me,
you’re going on the ground.” (Video 0:40:45–0:41:54). Physically resisting arrest supports the
application of force, see e.g., Wilson v. Flynn, 429 F.3d 465, 468 (4th Cir. 2005); Brown v.
Gilmore, 278 F.3d 362, 369–70 (4th Cir. 2002), and so this factor cuts in defendant Singh’s favor.
Plaintiff alleges that she told the arresting officers that they “were hurting her, pressing
the handcuffs . . . [and] cutting [them] into her wrists,” and “injuring her by kneeling on and
pressing into her knee and pulling on her neck.” (Compl. ¶ 36). However, because plaintiff does
not dispute that she was “actively resisting arrest or attempting to evade arrest by flight,” Graham,
490 U.S. at 396, officers were justified in using force to a “degree reasonably calculated to prevent
25
[her] flight.” Est. of Armstrong, 810 F.3d at 901; see also Graham, 490 U.S. at 396–97 (“The
calculus of reasonableness must embody allowance for the fact that police officers are often forced
to make split-second judgments – in circumstances that are tense, uncertain, and rapidly evolving
– about the amount of force that is necessary in a particular situation.”).
Plaintiff also alleges that she sustained injuries, including “several severe bruises on her
left arm and wrists,” “several cuts to her wrist,” “a black eye,” and “mental health [issues] . . .
presenting with post-traumatic stress” after the arrest. (Compl. ¶ 37). While the court takes
seriously plaintiff’s alleged injuries, here, they do not tip the balance of the excessive force
analysis. See Hupp, 931 F.3d at 322 (finding the extent of injuries to be “slight” where the plaintiff
alleged “emotional trauma, including anxiety and an inability to sleep, as well as . . . middle and
lower back pain . . . a contusion[,] and [a] lumbosacral strain”).
Thus, plaintiff fails plausibly to allege a Fourth Amendment violation for excessive force.
v.
State Law Claims
The court next addresses plaintiff’s state law claims for false imprisonment, trespass to
land, battery, assault, and negligent infliction of emotional distress brought against defendant
Singh. Defendant Singh argues that the state law claims fail alongside their federal analogues, or
alternatively, that public official immunity bars the claims. The court agrees as to all claims except
false imprisonment.
“Under North Carolina’s public official immunity doctrine . . . a public official is immune
from suit unless the challenged action was (1) outside the scope of official authority, (2) done with
malice, or (3) corrupt.” Knibbs v. Momphard, 30 F.4th 200, 227 (4th Cir. 2022). “Elementally, a
malicious act is an act (1) done wantonly, (2) contrary to the actor’s duty, and (3) intended to be
injurious to another.” Id. “North Carolina law presumes that public officials will discharge their
26
duties in good faith and exercise their powers in accord with the spirit and purpose of the law, so
evidence of malice must be sufficient by virtue of its reasonableness, not by mere supposition.”
Id.
“False arrest is a form of false imprisonment.” Fowler v. Valencourt, 334 N.C. 345, 348
(1993); see also Williams v. City of Jacksonville Police Dep’t, 165 N.C.App. 587, 596 (2004) (“A
false arrest, . . . one without proper legal authority, is one means of committing a false
imprisonment.”). Thus, where plaintiff alleges a Fourth Amendment claim for false arrest, plaintiff
also plausibly alleges a false imprisonment claim under North Carolina law.
“[P]ublic officers’ immunity . . . is unavailable to officers who violate clearly established
rights because an officer acts with malice when he does that which a man of reasonable intelligence
would know to be contrary to his duty.” Bailey v. Kennedy, 349 F.3d 731, 742 (4th Cir. 2003);
see also Johnson v. City of Fayetteville, 91 F.Supp.3d 775, 816 (E.D.N.C. 2015) (“Where a
defendant has been denied qualified immunity as to § 1983 . . . false arrest claims, the Fourth
Circuit has found denial of public official immunity on North Carolina common law . . . false
imprisonment claims to be appropriate.”). Thus, because the court has concluded that qualified
immunity does not bar plaintiff’s § 1983 claim for false arrest, public official immunity does not
bar plaintiff’s parallel state law claim for false imprisonment.
Plaintiff’s remaining claims are barred by public official immunity. In particular, a “claim
of trespass requires: (1) possession of the property by plaintiff when the alleged trespass was
committed; (2) an unauthorized entry by defendant; and (3) damage to plaintiff.” Singleton v.
Haywood Elec. Membership Corp., 357 N.C. 623, 627 (2003). “[C]onsent is a defense to a claim
of trespass.” Food Lion, Inc. v. Cap. Cities/ABC Inc., 194 F.3d 505, 517 (4th Cir. 1999). Public
official immunity under North Carolina law is functionally identical to qualified immunity under
27
federal law. See Bailey, 349 F.3d at 742; Pritchard v. Mobley, 595 F. Supp. 3d 438, 452 (E.D.N.C.
2022). Thus, where the court has concluded that qualified immunity bars plaintiff’s § 1983 claim
for illegal search, public official immunity bars plaintiff’s parallel state law claim for the same
reasons.
Plaintiff’s claims for assault and battery under North Carolina law similarly are “subsumed
within the federal excessive force claim and so” track the outcome of the federal claim. Rowland,
41 F.3d at 174. Therefore, where the court concluded that plaintiff fails to state a § 1983 claim for
excessive force, her state law claims for assault and battery also fail.
“A negligent infliction of emotional distress claim, by its very definition, necessarily
alleges only negligence.” Shaw v. Stroud, 13 F.3d 791, 803 (4th Cir. 1994). North Carolina
officials are immune from individual liability for negligent conduct where “a public official does
not waive immunity unless it is alleged . . . that the officer’s actions were corrupt or malicious or
beyond the scope of the official’s duties.” Id. at 804. Thus, where plaintiff alleges that “[t]he
actions and behaviors [of] [d]efendant Singh . . . were negligent,” (compl. ¶ 95), without
allegations of corrupt or malicious conduct, public official immunity bars plaintiff’s state law
claim for negligent infliction of emotional distress.
b.
Claims Against City Defendants
Plaintiff brings claims under § 1983 for violations of the Fourth Amendment, violation of
the North Carolina State Constitution, and state law claims for assault, battery, and false
imprisonment against city defendants. Defendants argue that plaintiff has abandoned her claims
under § 1983 and the North Carolina State Constitution, and her remaining state law claims
premised on respondeat superior fall with her assault, battery, and false imprisonment claims
against defendants Singh and Gerganous in their individual capacities.
28
i.
Monell Claims
Plaintiff asserts § 1983 claims under Monell v. Dep’t of Soc. Servs. of City of New York,
436 U.S. 658 (1978) against city defendants for violation of her constitutional rights. Plaintiff
abandons her Monell claims by not addressing city defendants’ arguments in her response brief.
(See generally DE 28). In addition and in the alternative, plaintiff fails to plausibly allege a Monell
violation against city defendants. Under Monell, a local government entity may be sued under §
1983 “when execution of a government’s policy or custom, whether made by its lawmakers or by
those whose edicts or acts may fairly be said to represent official policy, inflicts the injury” to the
plaintiff. 436 U.S. at 694. “A policy or custom for which a municipality may be held liable can
arise in four ways: 1) through an express policy, such as a written ordinance or regulation; 2)
through the decisions of a person with final policymaking authority; 3) through an omission, such
as a failure to properly train officers, that manifests deliberate indifference to the rights of citizens;
or 4) through a practice that is so persistent and widespread as to constitute a custom or usage with
the force of law.” Lytle v. Doyle, 326 F.3d 463, 471 (4th Cir. 2003).
Plaintiff makes allegations falling under the third and fourth theories of liability. (See
compl. ¶ 46b (“The wrongful acts of [defendants] . . . include . . . [t]he failure of [defendant] City
of Raleigh . . . to adequately train the officers of the [RPD] in investigative techniques and
procedures.”)); (see also id. ¶ 102 (“Defendant City of Raleigh . . . maintained a policy, custom,
or pattern and practice of promoting, facilitating, and condoning improper, illegal, and
unconstitutional techniques . . . specifically promoting unconstitutional searches and seizures.”)).
To state a Monell claim based upon failure to train or custom or usage “[a] plaintiff must
point to a persistent and widespread practice of municipal officials, the duration and frequency of
which indicate[s] that policymakers 1) had actual or constructive knowledge of the conduct, and
29
2) failed to correct it due to their deliberate indifference.” Owens v. Baltimore City State’s Att’ys
Off., 767 F.3d 379, 402 (4th Cir. 2014). A plaintiff must allege “continued inaction in the face of
documented widespread abuses,” Grayson v. Peed, 195 F.3d 692, 697 (4th Cir. 1999), for example
through allegations of “the existence of reported and unreported cases and numerous successful
motions which, if true, would buttress” an assertion of a custom or usage. Owens, 767 F.3d at
403.
Here, plaintiff has not stated a Monell claim based upon failure to train or custom or usage.
Plaintiff has not alleged, for example, “continued inaction in the face of documented widespread
abuses,” Grayson, 195 F.3d at 697, or “the existence of reported and unreported cases and
numerous successful motions which, if true, would buttress” an assertion of a custom or usage.
Owens, 767 F.3d at 403. Plaintiff has asserted in only conclusory terms a “custom, or pattern and
practice of promoting, facilitating, and condoning improper, illegal, and unconstitutional
techniques,” where she fails to allege other instances or patterns of instances of omissions.
(Compl. ¶ 102). While plaintiff argues that “[t]here have been numerous civil rights lawsuits
against Raleigh, [RPD], and Raleigh Police officers over [the] past three years,” (id. ¶ 105),
plaintiff provides no other details of those purported lawsuits or whether they involve the same
constitutional issues in this case. Cf. Owens, 767 F.3d at 403 (finding sufficient the allegation that
“reported and unreported cases from the period of time before and during the events complained
of establish that [a police department] had a custom, policy, or practice of knowingly and
repeatedly suppressing exculpatory evidence in criminal prosecutions”).
Thus, plaintiff has not alleged a Monell claim pursuant to § 1983 against city defendants.
30
ii.
North Carolina State Constitution Claims
Plaintiff alleges claims for violation of her rights pursuant to Article I § 19 of the North
Carolina State Constitution against city defendants. In response, defendants argue that plaintiff
has abandoned her claims, and, alternatively, plaintiff failed plausibly to allege a North Carolina
constitutional claim because of the existence of adequate state remedies. The court agrees.
Plaintiff again abandons these claims by failing to address city defendants’ arguments in
her response brief. (See generally DE 28). In addition and in the alternative, plaintiff also fails to
plausibly allege a claim under the North Carolina State Constitution because of the existence of an
“adequate state remedy.” Corum v. Univ. of N. Carolina Through Bd. of Governors, 330 N.C.
761, 782 (1992). An adequate state law remedy exists where there is a cause of action, at common
law or created by statute, that provides plaintiff with “the possibility of relief for the same injury
alleged in the direct constitutional claim.” Craig ex rel. Craig v. New Hanover Cty. Bd. of Educ.,
363 N.C. 334, 340 (2009).
Here, plaintiff has adequately pleaded a state law claim for false imprisonment against
defendant Singh. Further, although public official immunity bars plaintiff’s tort claims for trespass
to land, assault, and battery, those claims still provided the opportunity for plaintiff “to enter the
courthouse doors and present [her] claim[s].” Id. In addition, an available remedy against a
defendant in his individual capacity is sufficient to preclude a claim under the North Carolina State
Constitution against the defendant in his official capacity. Therefore, plaintiff’s claims under the
North Carolina State Constitution are dismissed.
iii.
Respondeat Superior Claim
Plaintiff alleges state law claims for assault, battery, and false imprisonment premised on
a theory of respondeat superior against defendant Raleigh. Defendants assert that, under this
31
theory, plaintiff’s claims against defendant Raleigh must be dismissed where those state law claims
cannot be maintained against defendants Singh and Gerganous.
The doctrine of respondeat superior “imputes the negligence of the servant to the master
and makes the latter liable for the torts of the former.” Pavelka v. Carter, 996 F.2d 645, 651 (4th
Cir. 1993). “Moreover, the doctrine is one of vicarious liability, not vicarious immunity, so any
immunity the [City of Raleigh] may enjoy does not, absent the operation of some other principle
of law, protect” defendant Singh. Id.; see also Simms v. Prudential Life Ins. Co. of America, 140
N.C. App. 529, 535 (2000) (“[D]efendant employer’s liability is derivative of its employee’s
liability, and the primary claim against the employee must first be determined before any claim
against defendant employer is possible.”).
Where as here, the court has concluded the plaintiff has plausibly alleged a claim for false
imprisonment against defendant Singh in his individual capacity, the derivative claim under a
theory of respondeat superior can proceed against defendant Raleigh. Similarly, where the court
has concluded that plaintiff has not stated a claim for assault or battery against defendant Singh,
those derivative claims against defendant Raleigh are dismissed. See Pritchard, 595 F. Supp. 3d
at 453 (“The City’s liability under respondeat superior for Officer Mobley’s actions depends on
an underlying tort claim against him.”).
c.
Punitive Damages
Defendant Singh argues that plaintiff’s request for punitive damages must fail because of
the deficiencies in her underlying claims. “[D]amages are available in § 1983 actions for conduct
that involves reckless or callous indifference to the federally protected rights of others as well as
for conduct motivated by evil intent.” Cooper v. Dyke, 814 F.2d 941, 948 (4th Cir. 1987). Under
North Carolina law, “[p]unitive damages may be awarded only if the claimant proves that the
32
defendant is liable for compensatory damage.” N.C. Gen. Stat. § 1D-15(a); Watson v. Dixon, 352
N.C. 343, 348 (2000) (“If the complainant fails to plead or prove his cause of action, then he is not
allowed an award of punitive damages because he must establish his cause of action as a
prerequisite for a punitive damage award.”). Here, plaintiff’s false arrest claim under § 1983 and
false imprisonment claim under state law will proceed, providing the necessary underlying claim.
Accordingly, defendant Singh’s motion to dismiss plaintiff’s request for punitive damages is
denied as to him.
City defendants assert that plaintiff has abandoned her request for punitive damages as it
relates to her claims against city defendants, and, in the alternative, that punitive damages are
unavailable against municipalities, including municipal employees sued in the official capacities,
under § 1983. Where plaintiff fails to state a claim under § 1983 and the North Carolina State
Constitution against city defendants, plaintiff’s request for punitive damages with respect to those
claims is denied. As for plaintiff’s surviving respondeat superior claim, “in the absence of
statutory provisions to the contrary, municipal corporations are immune from punitive damages.”
Long v. City of Charlotte, 306 N.C. 187, 208 (1982); see also City of Newport v. Fact Concerts,
Inc., 453 U.S. 247, 271 (1981) (“[A] municipality is immune from punitive damages under 42
U.S.C. § 1983.”). Here, plaintiff cannot maintain her request for punitive damages pursuant to a
respondeat superior claim. See N.C. Gen. Stat. § 1D-15(c) (“Punitive damages shall not be
awarded against a person solely on the basis of vicarious liability for the acts or omissions of
another.”). Thus, plaintiff’s request for punitive damages against city defendants is dismissed.
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CONCLUSION
Based on the foregoing, defendants’ motions to dismiss (DE 17, DE 20) are GRANTED
IN PART and DENIED IN PART, as follows:
a. The clerk is DIRECTED to terminate defendant Gerganous as a party in this case where
all claims against him are dismissed;
b. Plaintiff’s claims against defendant Singh in his individual capacity under 42 U.S.C. §
1983 for false arrest in violation of the Fourth Amendment, and under North Carolina
common law for false imprisonment may proceed;
c. Plaintiff may pursue recovery from defendant Raleigh for her claim under a theory of
respondeat superior predicated upon false imprisonment; and
d. Plaintiff may pursue punitive damages against defendant Singh on these surviving
claims; and
e. All other claims are dismissed.
Also as set forth above, motion to seal (DE 25) is DISMISSED AS MOOT. The clerk is
DIRECTED to maintain docket entries 21-1 and 23-1 under seal.
Stay imposed August 2, 2023, now is LIFTED and the clerk is DIRECTED to issue the
court’s initial order on planning and scheduling.
SO ORDERED, this the 27th day of March, 2024.
__________________________________
LOUISE W. FLANAGAN
United States District Judge
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