Rhodes et al v. Ingram et al
Filing
69
ORDER granting in part and denying in part 53 Motion for Summary Judgment and denying 56 Motion for Summary Judgment. Signed by Senior Judge W. Earl Britt on 8/25/2015. (Marsh, K)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NORTH CAROLINA
SOUTHERN DIVISION
NO. 7:13-CV-00192-BR
DAVID RHODES and DARLENE
HOLLAND,
Plaintiffs,
v.
JOHN INGRAM, in his official capacity as
Sheriff of Brunswick County, TIMOTHY
CLEMMONS, TINA EDWARDS, and
WESTERN SURETY COMPANY,
ORDER
Defendants.
TIMOTHY CLEMMONS,
Counterclaim Plaintiff,
v.
DAVID RHODES,
Counterclaim Defendant.
This matter is before the court on defendants John Ingram, in his official capacity as
Sheriff of Brunswick County, Timothy Clemmons, Tina Edwards, and Western Surety
Company’s (collectively “defendants”) motion for summary judgment, (DE # 53), and
counterclaimant Clemmons’s motion for summary judgment, (DE # 56). These motions have
been fully briefed and are ripe for disposition.
I. BACKGROUND
Plaintiffs David Rhodes and Darlene Holland (collectively “plaintiffs”) filed this lawsuit
on 6 August 2013 in Brunswick County Superior Court, North Carolina. (DE # 1-2.) Plaintiffs
assert claims pursuant to 42 U.S.C. § 1983, (id. ¶ 84), as well as state law claims of false
imprisonment, (id. ¶¶ 91-97), intentional infliction of emotional distress, (id. ¶¶ 98-104), and
negligent infliction of emotional distress, (id. ¶¶ 105-113). Clemmons filed a counterclaim
against Rhodes alleging defamation. (DE # 11, at 18.) Defendants removed the case to this
court on 4 September 2013. (DE # 1-1.)
The undisputed, pertinent facts follow. Shortly prior to 12 February 2013, the Brunswick
County Sheriff’s Office and other nearby law enforcement agencies were investigating several
reports of property stolen from a business and homes in the area. In particular, defendant
Detective Tina Edwards with the Brunswick County Sheriff’s Office received information that
led her to believe that Timothy Vernon, Travis Priest, and Heather King may have been involved
in two of the thefts. (See Edwards Aff., DE # 54-5, ¶¶ 5, 7, 10.) Based on this belief, Detective
Edwards asked detectives with a local law enforcement task force to contact her if they
encountered any of the three individuals. (Id. ¶ 10.) Shortly thereafter, a detective on the task
force with the Shallotte Police Department notified Detective Edwards that King had been
talking with the detective about her involvement in a property theft ring. (Id. ¶ 11.) Detective
Edwards was informed that King told a police captain that she, Vernon, and Priest had disposed
of some of the property they had stolen. (Id.) King rode with the captain past a residence where
she stated the three of them had sold the stolen property. (Id.) The captain determined the
address for this residence was 1584 Holden Beach Road. (Id.)
On 12 February 2013, Detective Edwards interviewed King. (Id. ¶ 12.) King stated she
was waiting in a vehicle while Vernon broke into a home and stole a television. (Id.) They took
the television to a residence in Shallotte (which officers later confirmed to be 1584 Holden
Beach Road) where Vernon sold the television along with an air compressor and/or a generator
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stolen from his employer to a man at the residence named “Dave” for $340. (Id.) According to
King, Vernon also gave or sold “Dave” a shotgun. (Id.) King further stated that she sold to
“Dave” for cash Walmart gift cards she had illegally obtained through shoplifting merchandise.
(Id.) King told Detective Edwards that she had seen several other televisions at 1584 Holden
Beach Road. (Id.)
Believing the information she had established probable cause to believe
that there was stolen property at 1584 Holden Beach Road, on the evening of 12 February 2013,
Detective Edwards with the assistance of two other officers drafted an application for a search
warrant of the premises. (Id. ¶ 14.) Later that same evening, Chief Resident Superior Court
Judge Ola Lewis issued the search warrant. (Id. & Ex. A.) The warrant authorized the seizure of
a number of items, including power and lawn equipment, electronics including computers,
firearms, property described on attached incident reports related to thefts the local task force was
investigating, and “any other property discovered that is stolen property or evidence of a crime.”
(Id., Ex. A.)
Still later that same evening, law enforcement officers executed the search warrant.
Believing “that there was at least one stolen firearm in possession of the subject(s) at 1584
Holden Beach Road, and a high potential for more, [Detective Edwards and other officers
involved] were concerned that there was a significant risk to the safety of the law enforcement
officers executing the search warrant.” (Id. ¶ 15.) Accordingly, Detective Edwards’s supervisor
requested the Brunswick County Sheriff’s SWAT team to lead the execution of the search
warrant. (Id.)
Prior to executing the search warrant, the SWAT team met and was briefed “that stolen
firearms were believed to be present at 1584 Holden Beach Road and that the subjects at the
location, who were suspected of buying and possessing stolen high-dollar property, could
3
otherwise be armed and dangerous.” (Holman Aff., DE # 54-7, ¶ 4; Cherry Aff., DE # 54-8, ¶ 4;
Lentz Aff., DE # 54-9, ¶ 4.) The SWAT team entered the house at 1584 Holden Beach Road by
use of a hand-held battering ram. (Holman Aff., DE # 54-7, ¶ 7; Cherry Aff., DE # 54-8, ¶ 9;
Lentz Aff., DE # 54-9, ¶ 8.) Upon determining no danger existed inside the residence, the
SWAT team radioed the detectives waiting outside in their vehicles to advise them the scene was
clear. (Lentz Aff., DE # 54-9, ¶ 13; see also Cherry Aff., DE # 54-8, ¶ 16.) After a short
debriefing outside, the SWAT team left. (Cherry Aff., DE # 54-8, ¶ 17; Lentz Aff., DE # 54-9, ¶
14.)
After receiving the “all clear” radio call from the SWAT team, Detective Edwards, who
had been waiting outside in her vehicle, entered the house and found Rhodes seated on a couch
across from the front door with his hands bound by zip-tie cuffs. (Edwards Aff., DE # 54-5, ¶¶
16, 17.) Although Holland owned the residence, Rhodes stayed there occasionally, and, on this
evening, he was staying there to take care of Holland’s dogs while she was out of town. (Rhodes
Dep., DE # 54-11, at 41; Holland Dep., DE # 54-14, at 11.) 1 Detective Edwards advised Rhodes
of his Miranda rights, and he agreed to speak with officers. (Edwards Aff., DE # 54-5, ¶ 17.)
Detective Edwards and another detective questioned Rhodes, and the search of the premises took
place. (Id.) Forty-nine items were identified as having been seized during the search, including
a sawed-off shotgun and other firearms, two diamond rings, Walmart gift cards, computers and
other electronics, a generator, and an EBT card in King’s name in Rhodes’s wallet. (Id. & Ex.
N.)
Before the search of Holland’s residence concluded, Detective Edwards and another
detective escorted Rhodes to his residence at 1241 David L Street. (Id. ¶ 22; see also Rhodes
Dep., DE # 54-12, at 46-47.) The detectives searched his property and seized several items,
1
Page citations are to those generated by cm/ecf.
4
including items that Rhodes said he had bought from Priest—an air compressor, a transit, and
two compound miter saws—as well as a nail gun and a shotgun. (Edwards Aff., DE # 54-5, ¶
22 & Ex. E; see also Rhodes Dep., DE # 54-12, at 46-48.) After Rhodes informed officers that
he needed an insulin shot, he was returned to Holland’s residence where the medicine was
located. (Edwards Aff., DE # 54-5, ¶ 24; Rhodes Dep., DE # 54-12, at 50-51.) The search of
Holland’s residence concluded around 1:00 a.m. on 13 February 2013. (See Rhodes Dep., DE #
54-12, at 52, 54.) Rhodes was not charged with any crime. (See Edwards Aff., DE # 54-5, ¶ 31.)
In the meantime, at some point during the evening, Holland spoke on the telephone with
a male who identified himself as a member of the Brunswick County Sheriff’s Department, who
told her to bring back a television she had in her possession or else he would hold her dogs
hostage. (Holland Dep., DE # 54-14, at 91-92.) Holland returned from out of town, went
directly to the Shallotte Police Department, and turned over a 60-inch television, which she
admitted to Edwards she had purchased from Priest, King, and Vernon. (Edwards Aff., DE # 545, ¶ 28; Holland Dep., DE # 54-14, at 97, 99.) She then returned to her home. (Holland Dep.,
DE # 54-14, at 100-102.)
II. DISCUSSION
“The court 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). In determining whether a genuine issue of material fact exists, the court must
view all the facts and inferences therefrom in the light most favorable to the non-movant. Glynn
v. EDO Corp., 710 F.3d 209, 213 (4th Cir. 2013). The court considers the claims in turn.
A. Section 1983 Claims
Plaintiffs characterize their claims under 42 U.S.C. § 1983 as follows:
5
The first is Plaintiff Rhodes’ claim for a violation of his Fourth Amendment right
to be free from the government’s use of excessive and unnecessary force in the
context of a seizure. The second is a claim asserted by both Plaintiffs for
violations of their Fourth Amendment right to be free from unlawful searches and
seizures.
(Pls.’ Mem., DE # 61, at 15.) Defendants contend that qualified immunity applies to these
claims.
In determining whether an officer is entitled to summary judgment
on the basis of qualified immunity, courts engage in a two-pronged
inquiry. The first asks whether the facts, viewed in the light most
favorable to the plaintiff, show that the officer's conduct violated a federal
right. . . .
The second prong of the qualified-immunity inquiry asks whether the right
was clearly established at the time the violation occurred such that a reasonable
person would have known that his conduct was unconstitutional.
Smith v. Ray, 781 F.3d 95, 100 (4th Cir. 2015) (footnote and citations omitted). In analyzing the
second prong, a case directly on point is not required “in order to conclude that the law was
clearly established so long as ‘existing precedent [has] placed the statutory or constitutional
question beyond debate.’” Id. (citation omitted) (alteration in original). In the exercise of its
discretion, the court decides which of these two prongs to address first in light of the
circumstances of the case. Pearson v. Callahan, 555 U.S. 223, 236 (2009). A defendant is
entitled to summary judgment on qualified immunity grounds if the answer to either prong is
“no.” See, e.g., Miller v. Prince George’s Cty., Md., 475 F.3d 621, 627 (4th Cir. 2007).
i. Rhodes’s Excessive Force Claim
As the Fourth Circuit Court of Appeals had recognized:
A claim that a police officer employed excessive force is analyzed
under the Fourth Amendment under an “objective reasonableness”
standard. The officer's actions do not amount to excessive force if they
“are ‘objectively reasonable’ in light of the facts and circumstances
confronting [him], without regard to [his] underlying intent or
motivation.” In considering the reasonableness of an officer's actions, we
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must consider the facts at the moment that the challenged force was employed.
Evaluating the reasonableness of the officer's actions “requires a careful
balancing of the nature and quality of the intrusion on the individual's Fourth
Amendment interests against the countervailing governmental interests at stake.”
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. Artificial divisions in the sequence of events do not aid a
court's evaluation of objective reasonableness.” We also must give “careful
attention to the facts and circumstances of each particular case, including” three
factors in particular: “the severity of the crime at issue, whether the suspect poses
an immediate threat to the safety of the officers or others, and whether he is
actively resisting arrest or attempting to evade arrest by flight.” Ultimately, the
question to be decided is “whether the totality of the circumstances justifie[s] a
particular sort of . . . seizure.”
Smith, 781 F.3d at 100-101 (citations omitted) (alteration and omission in original).
According to Rhodes, on the evening of 12 February 2013, he fell asleep on the couch in
the front room of Holland’s residence. (Rhodes Dep., DE # 54-12, at 9, 24 & Ex. 3.) He was
awakened by two loud booms. (Id. at 9, 12.) He got up and went to look out the kitchen window
(facing out the front of the house). (Id. at 9, 13, 14, 24-25 & Ex 3.) Rhodes heard someone
outside say, “He’s running.” (Id. at 13.) Then, the front door flew open, and the officers entered
with guns drawn. (Id. at 9, 14.) Rhodes, who was not armed, asked, “What the hell are you all
doing in here?” (Id. at 9, 17.) Someone responded, “Well I’m the law,” and told Rhodes that
they had a search warrant. (Id.) Someone said they were going to handcuff Rhodes. (Id. at 10,
18.) Defendant Narcotics Agent Clemmons, who was wearing a mask, to whom Rhodes is
related, and who Rhodes identified by his voice, told Rhodes to “get in the floor.” (Id. at 10-11,
18, 29.) Rhodes told him that he (Rhodes) could not get on the floor because he has bad legs and
his shoulder and back had been broken. (Id. at 10, 18.) Agent Clemmons ordered Rhodes again
to get on the floor. (Id.) Rhodes responded, “I’ll try to.” (Id.) Rhodes got his right knee and
hand on the floor, when Agent Clemmons kicked him in the back and shoulder and caught his
hand and twisted his shoulder. (Id. at 10, 19, 27, 29.) Rhodes’s hands were then placed in front
7
with plastic zip cuffs, and he was brought up on his feet. (Id. at 30-31.) As a result of the force
used, Rhodes’s previously surgically implanted anchors in his shoulder were ripped out and he
suffered a torn rotator cuff and broken bone in his hand. (Verified Compl., DE # 1-2, ¶ 37.)
According to defendants, a member of the SWAT team knocked loudly on Holland’s
residence and shouted several times, “Sheriff’s Office! Search warrant!” (Holman Aff., DE #
54-7, ¶ 7; Cherry Aff., DE # 54-8, ¶ 8; Lentz Aff., DE # 54-9, ¶ 7.) No one responded. (Id.) As
the SWAT team entered the house, members yelled, “Sheriff!” and commanded, “Show your
hands!” and “Get down on the floor!” (Holman Aff., DE # 54-7, ¶ 9; Cherry Aff., DE # 54-8, ¶
10; Lentz Aff., DE # 54-9, ¶ 9.) Rhodes ignored the commands and went into the bedroom.
(Cherry Aff., DE # 54-8, ¶ 10; Lentz Aff., DE # 54-9, ¶ 10.) The officers commanded Rhodes
to come out of the bedroom, show his hands, and get down on the floor. (Cherry Aff., DE # 548, ¶ 12; Lentz Aff., DE # 54-9, ¶ 11.) By this time, the officers were in the kitchen. (Cherry
Aff., DE # 54-8, ¶ 11.) Rhodes came out of the bedroom and advanced towards the officers,
while they continued to command him to show them his hands and get on the floor, which
Rhodes continued to ignore. (Cherry Aff., DE # 54-8, ¶ 13; Lentz Aff., DE # 54-9, ¶ 11.) One
officer “attempted to stun [Rhodes] by employing a trained stun technique to his brachial plexus
with the outside edge of [the officer’s] hand.” (Cherry Aff., DE # 54-8, ¶ 13.) That effort was
not successful. (Id.) Another unidentified SWAT team member wrestled Rhodes to the floor
and secured his hands with plastic zip-tie cuffs. (Cherry Aff., DE # 54-8, ¶ 14; Lentz Aff., DE #
54-9, ¶ 12.) Other than the attempt to stun Rhodes, no one struck him at any time. (Cherry Aff.,
DE # 54-8, ¶ 14.)
Defendants maintain that Agent Clemmons did not enter Holland’s house with the SWAT
team. (Holman Aff., DE # 54-7, ¶ 13; Cherry Aff., DE # 54-8, ¶ 18; Lentz Aff., DE # 54-9, ¶
8
15.) Rather, Agent Clemmons was sitting outside Holland’s residence in the car of Agent Jeff
Beck while the SWAT team secured the premises. (Clemmons Aff., DE # 54-6, ¶ 7; Beck Aff.,
DE # 54-10, ¶ 7.) Agent Clemmons, who was wearing civilian clothes and nothing covering his
face, entered the house with Agent Beck to assist with the search. (Clemmons Aff., DE # 54-6,
¶¶ 5, 7; Beck Aff., DE # 54-10, ¶ 7.) He never saw, spoke to, or touched Rhodes. (Clemmons
Aff., DE # 54-6, ¶¶ 8, 11; see also Cherry Aff., DE # 54-8, ¶ 18; Lentz Aff., DE # 54-9, ¶ 15.)
Based on the foregoing, it is hotly contested whether any excessive force was used on
Rhodes and, if there was, whether Agent Clemmons was the person who inflicted that force.
When the facts are viewed in the light most favorable to plaintiffs, those facts show that Agent
Clemmons violated Rhodes’s Fourth Amendment right to be free from the use of excessive force
in the course of Rhodes’s seizure. As noted, Rhodes was unarmed. He told the officers why he
could not get down on the floor. In response to the continued command to get down on the floor,
he attempted to do so, but before he could fully comply, Agent Clemmons kicked him in the
back and shoulder and wrenched his arm. Rhodes posed no immediate threat to officer safety
nor did he actively resist arrest or attempt to flee. Based on this version of the facts, a reasonable
juror could conclude that Agent Clemmons’s actions were not objectively reasonable and that he
violated Rhodes’s Fourth Amendment right to be free from excessive force in the course of a
seizure.
Continuing the qualified immunity analysis, the court next examines whether that right
was clearly established on 12 February 2013. The court has no difficulty concluding that it was.
It has long been recognized that an officer cannot use “unnecessary, gratuitous, and
disproportionate force” to subdue an unarmed subject who poses no threat to the officer’s safety.
See Meyers v. Baltimore Cty., Md., 713 F.3d 723, 734-35 (4th Cir. 2013). A reasonable person
9
in Agent Clemmons’s position would have known that his conduct was unconstitutional.
Accordingly, he is not entitled to summary judgment on the ground of qualified immunity.
ii. Unreasonable Search and Seizure Claim
Plaintiffs assert two distinct theories of liability for their claim of violation of their Fourth
Amendment right to be free from unreasonable search and seizure. First, plaintiffs claim that
Detective Edwards exceeded the scope of the search warrant for Holland’s residence. 2 3 (Pls.’
Mem., DE # 61, at 19.)
“If the scope of the search exceeds that permitted by the terms of a validly issued
warrant or the character of the relevant exception from the warrant requirement,
the subsequent seizure is unconstitutional without more.” Horton v. California,
496 U.S. 128, 140, 110 S. Ct. 2301, 110 L. Ed. 2d 112 (1990). However, even
when a constitutional violation is found, qualified immunity may still attach if a
reasonable officer would not have realized that he was exceeding the scope of the
search warrant. Saucier v. Katz, 533 U.S. 194, 202, 121 S. Ct. 2151, 150 L. Ed.
2d 272 (2001). This inquiry “must be undertaken in light of the specific context
of the case, not as a broad general proposition.” Id. at 201, 121 S. Ct. 2151. To
put it more concisely “the unlawfulness must be apparent.” [Anderson v.
Creighton, 483 U.S. 635, 640-41, 107 S. Ct. 3034 (1987)].
Ark. Chronicle v. Murphy, 183 F. App’x 300, 311 (4th Cir. 2006).
The search warrant at issue here authorized the seizure of the following items:
1. Power and lawn equipment.
2. Electronic equipment, televisions, cell phones, to include but not limited
to computers.[] Additionally, computer software, tapes and discs, audio
tapes, and the aforementioned electronic equipment[.]
3. United States Currency, precious metals, jewelry, and financial
instruments.
4. Indicia of occupancy, residency, rental and or ownership of the premises
described herein, including but not limited to, utility and telephone bills,
cancelled envelopes, rental purchase, or lease agreements, and keys[.]
5. Firearms and ammunition, including but not limited to, handguns, pistols,
revolvers, rifles, shotguns, machine-guns, and other weapons.
2
For purposes of the motion, plaintiffs concede that the search warrant was validly issued. (Pls.’ Mem., DE # 61, at
19.)
3
Plaintiffs assert this claim against Agent Clemmons too. (See Compl., DE # 1-2, ¶¶ 45, 79-90.) However,
plaintiffs’ argument only addresses Detective Edwards’s conduct or refers generically to “Defendants.”
Furthermore, it is apparent Agent Clemmons’s role in the search was minimal. (See Clemmons Aff., DE # 54-6, ¶
9.) Therefore, the court restricts its analysis to Detective Edwards’s conduct.
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6. Property more specifically described on the attached incident reports
identified as Exhibit l, Exhibit 2 and Exhibit 3[,] and any other property
discovered that is stolen property or evidence of a crime[.]
(Edwards Aff., Ex. A., DE # 54-5, at 16, 18.) Plaintiffs point out that “Edwards . . . seized
dozens of items that were not found on th[e] incident reports” and identify several categories of
items which purportedly illustrate the “excessive seizures,” (Pls.’ Mem., DE # 61, at 20),
namely, Walmart gift cards, Gameboy Advance/Nintendo Wii, a generator, and Samsung
television/Gateway ZX computer, (id. at 21-23).
It is significant to note that by its plain terms, the search warrant did not limit the seizure
of items to those identified in the attached incident reports. Rather, it identifies several
categories of items. The Walmart gift cards fall within the category of “any other property
discovered that is stolen property or evidence of a crime.” Based on the information Detective
Edwards had obtained from King, that is, an individual at the residence named “Dave” had paid
her cash for Walmart gift cards that she obtained by shoplifting, a reasonable officer in Detective
Edwards’s position would have been warranted in believing that the gift cards were stolen and
could be seized. That the gift cards were ultimately returned to plaintiffs, suggesting that they
were not procured illegally, (Pls.’ Mem., DE # 61, at 21), is of no moment. The officer’s
conduct is judged from the moment in time as of the seizure, see Rowland v. Perry, 41 F.3d 167,
173 (4th Cir. 1994) (“[T]he immunity inquiry must be filtered through the lens of the officer's
perceptions at the time of the incident in question.” (citation omitted)), and a reasonable officer
in Detective Edwards’s position would not have realized she was exceeding the scope of the
warrant by seizing the gift cards which fall within a category of items specified in the warrant
and about which she had a reasonable belief were obtained illegally.
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Turning to the video gaming devices, they fit within the category of “electronic
equipment.” According to defendants, these items were seized based on the Shallotte Police
Department’s having received reports that such items had recently been stolen. (Pls.’ Ex. K, DE
# 61-12, at 17, 18.) Plaintiffs take issue with the fact that defendants did not produce the reports
to substantiate this sworn statement and argue that the items’ identifying characteristics, such as
serial numbers, could have been compared to those characteristics contained in any prior reports
of stolen property. (Pls.’ Mem., DE # 61, at 22.) It is enough that defendants have attested to the
statement. Further, that the officers could have executed the search differently (or even better)
does not necessarily make their conduct unreasonable. A reasonable officer in Detective
Edwards’s position, possessing the information that Gameboy Advance(s) and Nintendo Wii(s)
had recently been stolen in the area and possessing a warrant authorizing the seizure of electronic
equipment, would not have realized that she was exceeding the scope of the search warrant.
Plaintiffs also take issue with the seizure of a generator from Holland’s residence. The
generator falls within the category of “power equipment” on the search warrant. Plaintiffs
question defendants’ stated reason for the seizure: “it appeared to match the description of two
generators reported to have been stolen,” (Pls.’ Ex. K, DE # 61-12, at 23). Specifically, plaintiffs
point out that one generator that was reported stolen from William Schmidt was actually
recovered at a pawn shop 12 days prior to the search of Holland’s residence. (Pls.’ Mem., DE #
61, at 22.) They also cite defendants’ failure to provide a report or other information about the
other generator stolen. (Id.) Unlike for a number of other items seized, (see, e.g., Pls.’ Ex. K.,
DE # 61-12, at 16, 17, 18), defendants’ stated justification for seizure of the generator does not
rely on property reported stolen from Schmidt, (id. at 23). Like the video gaming devices, it is
enough that the search warrant authorized the seizure of power equipment; Detective Edwards
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possessed information that two generators had been stolen; and she acted on the belief that the
generator at issue appeared to match the description of the generators previously reported stolen.
A reasonable officer in her position would not have realized her conduct in seizing the generator
was unlawful.
Finally, plaintiffs contend that the seizure of a Samsung television and a Gateway
computer was unconstitutional. The search warrant specifically authorized the seizure of
televisions and computers. Defendants state that the particular television and computer were
seized because the item was either in close proximity to, or in a room containing, other items
which were believed to be stolen. (Id. at 18.) Also, the manner in which these electronic items
were stored led the officers to believe they may have been stolen. (Id.) Plaintiffs cast doubt on
defendants’ justification for the seizure, noting defendants’ failure to specifically describe the
manner in which the items were stored or explain why the manner is indicative of stolen
property. (Pls.’ Mem., DE # 61, at 22-23.) They also suggest that under defendants’ rationale,
all of Holland’s property could have been seized because of the proximity of supposedly stolen
items to one and other. (See id. at 23.) The court disagrees. Rather, with a warrant in hand
authorizing the seizure of televisions and computers and finding those items close to, and stored
like, other items believed to have been stolen, a reasonable officer in Detective Edward’s
position would not realize her conduct was unlawful.
In sum, to the extent plaintiffs claim that Detective Edwards exceeded the scope of the
search warrant, Detective Edwards is entitled to qualified immunity, and the entry of summary
judgment on this claim is appropriate.
Plaintiffs’ other theory of liability for the unreasonable search and seizure claim is based
upon defendants’ allegedly exceeding the scope of Rhodes’s consent to search his residence.
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(Pls.’ Mem., DE # 61, at 19.) “A suspect’s consent to search provides an exception to the Fourth
Amendment’s warrant and probable cause requirements. Once a [suspect] voluntarily gives
consent, a search that falls within the scope of that consent is constitutionally permissible.”
United States v. Ortiz, 669 F.3d 439, 445 (4th Cir. 2012) (citations omitted). “[T]he giver of
consent . . . controls the scope of consent. It is perfectly within a homeowner’s rights to give a
limited consent to search. As the Supreme Court has stated, an individual ‘may of course delimit
as he chooses the scope of the search to which he consents.’” United States v. Coleman, 588
F.3d 816, 820 (4th Cir. 2009) (quoting Florida v. Jimeno, 500 U.S. 248, 252 (1991)).
Neither side devotes much discussion to this aspect of plaintiffs’ search and seizure
claim. The facts that they each emphasize leads the court to conclude that a genuine issue of
material fact exists. Defendants rely on Rhodes’s consent to search his residence. According to
defendants, Rhodes gave Detective Edwards and other officers verbal and written permission “to
search his property at 1241 David L Street to retrieve items” he had bought from Priest.
(Edwards Aff., DE # 54-5, ¶ 19.) Edwards states, “The Consent to Search form was read aloud
to Mr. Rhodes before he signed it.” (Id. ¶ 20.) The signed form, which appears to bear a
signature of David L. Rhodes, permits a “complete search” of the property located at 1241 David
L Street, Supply, North Carolina, and authorizes officers to remove from the property any stolen
property and “any other materials of evidence of any crime which they may desire,” among other
things. (Id., Ex. D.) While plaintiffs do not appear to dispute that the consent form was read to
Rhodes and that he signed it, (see Pls.’ Mem., DE # 61, at 10 (“[A] general consent to search was
provided and read to [Rhodes]. Again, Plaintiff Rhodes was unable to read this document but
agreed to sign it.” (citations omitted))), they maintain that Rhodes limited his consent. Rhodes
testified,
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I said I’ll make a deal with you all now. I said, I’ll take you all to get—get that
stuff at my other place. Where is that other place, they said? I said, ya’ll [sic]
promise me, we’ll go to that one shed and I’ll give it to you when we get there.
And don’t mess with my young’uns over there. Said yes, sir.
(Rhodes Dep., DE # 54-12, at 32.) He testified further, “I said ya’ll [sic] promise you’ll just go
to one building I got. I’ll take you to it and you—I’ll give you these—these four items, and you
back out and leave.” (Id. at 46.)
Viewing the facts in the light most favorable to Rhodes, despite his written consent to
search his all property, he limited that consent to a search of one shed. When Edwards searched
beyond the confines of that shed, (see id. at 48 (Rhodes testifying that officers went in his
garage, house, and another shed)), she exceeded the scope of the limited consent given, thereby
violating Rhodes’s Fourth Amendment right to be free from an unreasonable search. 4
Furthermore, any reasonable officer would have known in 2013 that it would have been unlawful
for her to search outside of the one portion of the property to which consent was limited.
Accordingly, Detective Edwards is not entitled to summary judgment on the ground of qualified
immunity on this claim.
iii. Claims Against Sheriff Ingram
Plaintiffs assert their § 1983 claims not only against the individual officers involved,
Detective Edwards and Agent Clemmons, but also against John Ingram in his official capacity as
the Brunswick County Sheriff. A claim against a governmental officer in his official capacity is
deemed a claim against the governmental entity itself. Andrews v. Daw, 201 F.3d 521, 525 (4th
Cir. 2000).
Although a local government entity may be held liable under § 1983, it is
well settled that a local government entity cannot be held liable under § 1983 on a
respondeat superior theory. Rather, to establish liability of the entity, a plaintiff
4
While this claim is also asserted against Agent Clemmons, there is no evidence that he was involved in the search
of Rhodes’s property.
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must show that: (1) a government actor deprived the plaintiff of her
federal rights; and (2) the harm was the result of municipal policy or
custom. “This requirement limits municipal liability under section 1983 to
those actions for which the municipality is actually responsible by
distinguishing between acts attributable to the municipality and acts
attributable only to municipal employees.” . . . .
A policy or custom for which a local government entity may be held liable
may arise in four ways:
(1) through an express policy, such as 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 “manifest[s] 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.”
....
Johnson v. City of Fayetteville, No. 5:12-CV-456-F, 2015 WL 928772, at *24-25 (E.D.N.C.
Mar. 4, 2015) (citations omitted).
In support of their governmental liability claim, plaintiffs point to two alleged violations
of the Sheriff’s policies. First, plaintiffs claim the violation of the Sheriff’s use of force policy
by the failure to conduct an investigation into the use of force against Rhodes. (Pls.’ Mem., DE
# 61, at 24; see also Pls.’ Ex. O., DE # 61-16 (use of force policy).) Second, they claim a
violation of the Sheriff’s policy on searches by the failure to complete documentation required
by that policy. (Pls.’ Mem., DE # 61, at 24-25; see also Pls.’ Ex. P, DE # 61-17 (search and
seizure policy).) Even assuming that violations of these policies occurred, “municipal liability
will attach only for those policies or customs having a ‘specific deficiency or deficiencies . . .
such as to make the specific violation almost bound to happen, sooner or later, rather than merely
likely to happen in the long run,’” Carter v. Morris, 164 F.3d 215, 218 (4th Cir. 1999) (citation
omitted) (emphases in original). Plaintiffs do not rely on a particular deficiency with the
Sheriff’s policies nor can they show that the violations of the policies resulted in the violations of
their Fourth Amendment rights. The purported policy violations occurred after the alleged
16
constitutional violations. Under these circumstances, the violations of the Sheriff’s policies
cannot form a basis for the Sheriff’s liability in his official capacity. Cf. Salvato v. Miley, 790
F.3d 1286, 1295-96 (11th Cir. 2015) (holding that the sheriff was entitled to judgment as a
matter of law on excessive force claim based on the sheriff’s failure to investigate subject
incident of excessive force because the plaintiff could not show evidence of a policy approved by
the sheriff that led to the use of excessive force or show that he reviewed the officer’s decision to
engage in the conduct and approved it beforehand).
Plaintiffs also appear to rely on a failure-to-train theory in support of their § 1983 claim
against the Sheriff. (See Pls.’ Mem., DE # 61, at 25-26.) Official capacity liability under § 1983
may be premised on a failure to train. However,
[a] municipality's failure to train its officers can result in liability under section
1983 only when such failure reflects “deliberate indifference” to the rights of its
citizens. That is, “[o]nly where a failure to train reflects a ‘deliberate’ or
‘conscious' choice by a municipality—a ‘policy’ as defined by our prior cases—
can a city be liable for such failure under § 1983.”
Doe v. Broderick, 225 F.3d 440, 456 (4th Cir. 2000) (citations omitted). Plaintiffs simply
assume that because the Sheriff’s policies discussed above were (allegedly) violated, the officers
involved in the constitutional deprivations were not adequately trained and/or supervised.
Plaintiffs have come forward with no evidence regarding the lack of training. Also, even
accepting that there was a deficiency in training, that failure to train as to the policies supposedly
violated did not cause the constitutional deprivations. See Brown v. Mitchell, 308 F. Supp. 2d
682, 701 (E.D. Va. 2004) (“To impose [§ 1983] liability on a supervisor for the failure to train
subordinates, a plaintiff must plead and prove that: . . . this failure to train actually caused the
subordinates to violate the plaintiff's rights.” (citations omitted)).
17
Because plaintiffs cannot show any ground upon which to impose liability on Sheriff
Ingram in his official capacity, defendants are entitled to summary judgment on the § 1983 claim
against him. 5
B. State Law Claims
i. False Imprisonment Claim
Rhodes alleges a claim for false imprisonment. “‘False imprisonment’ has been defined
as ‘the illegal restraint of a person against his will.’ A restraint is illegal if it is unlawful or not
consented to.” Moore v. Evans, 476 S.E.2d 415, 421 (N.C. Ct. App. 1996) (citations omitted).
An officer executing a warrant directing a search of premises not generally open
to the public or of a vehicle other than a common carrier may detain any person
present for such time as is reasonably necessary to execute the warrant.
N.C. Gen. Stat. § 15A-256 (2007). “In executing a search warrant officers may
take reasonable action to secure the premises and to ensure their own safety and
the efficacy of the search.” L.A. Cty. v. Rettele, 550 U.S. 609, 614, 167 L. Ed. 2d
974, 979 (2007). “Such detentions are appropriate . . . because the character of
the additional intrusion caused by detention is slight and because the justifications
for detention are substantial.” Muehler v. Mena, 544 U.S. 93, 98, 161 L. Ed. 2d
299, 306 (2005). The detention of an occupant is less intrusive than the search
itself, and the presence of a warrant ensures that a neutral magistrate has
determined that probable cause exists to search the home. Id. In contrast to this
incremental intrusion, law enforcement has substantial justification for detaining
an occupant:
“preventing flight in the event that incriminating evidence is
found”; [sic] “minimizing the risk of harm to the officers”; [sic]
and facilitating “the orderly completion of the search,” as
detainees' “self-interest may induce them to open locked doors or
locked containers to avoid the use of force.”
Id. at 96, 161 L. Ed. 2d at 306-07 (quoting Michigan v. Summers, 452 U.S. 692,
702-03, 69 L. Ed. 2d 340, 349-50 (1981)).
. . . . Furthermore, the “safety risk inherent in executing a search warrant for
weapons [is] sufficient to justify the use of handcuffs[.]” Muehler, 544 U.S. at
100, 161 L. Ed. 2d at 308.
5
This same analysis applies to the extent plaintiffs assert their § 1983 claims against Detective Edwards and Agent
Clemmons in their official capacities.
18
Jackson v. Daniels, No. COA08-822, 2009 WL 1054002, at *6 (N.C. Ct. App. Apr. 21, 2009)
(alterations in original).
Here, the officers were executing a facially valid search warrant. Under North Carolina
law, they were authorized to detain Rhodes for a reasonable amount of time to execute the
search. Their use of handcuffs to detain Rhodes was not unreasonable given the information that
they possessed about stolen firearms being present in the residence. Also, Rhodes agreed to
accompany officers to his property. (Edwards Aff., DE # 54-5, ¶ 19; see also Rhodes Dep., DE #
54-12, at 46.) The entire episode lasted approximately three hours. (See Edwards Aff., Ex. A,
DE # 54-5 (search warrant executed at 10:23 p.m.); Rhodes Dep., DE # 54-12, at 52, 54 (officers
turned Rhodes “loose” around 1:00 a.m.).) Under these circumstances, the officers’ restraint of
Rhodes was lawful and, in part, consented to. Accordingly, defendants are entitled to summary
judgment on Rhodes’s false imprisonment claim. See Unus v. Kane, 565 F.3d 103, 119-21 (4th
Cir. 2009) (applying Virginia law and upholding summary judgment entered against the
plaintiffs on their false imprisonment and battery claims, where federal agents had detained the
plaintiffs in handcuffs for nearly four hours while executing warrant to search for evidence
related to money laundering in support of international terrorism); Jackson, 2009 WL 1054002,
at *5-7 (affirming entry of summary judgment against the plaintiff on her false imprisonment,
assault, and battery claims based on the execution of a search warrant for weapons and controlled
substances where the plaintiff was handcuffed).
ii. Emotional Distress Claims
Holland asserts claims for intentional infliction of emotional distress and negligent
infliction of emotional distress. With regard to these claims, Holland relies exclusively on
Detective Edwards’s exceeding the scope of the search warrant, threatening to auction Holland’s
19
property, and falsely accusing Holland of various crimes. 6 (See Pls.’ Mem., DE # 61, at 28, 29,
30.)
The essential elements of a claim for [intentional infliction of
emotional distress] are “(1) extreme and outrageous conduct, (2) which is
intended to cause and does cause (3) severe emotional distress to another.”
The liability clearly does not extend to mere insults,
indignities, threats, annoyances, petty oppressions, or other
trivialities. The rough edges of our society are still in need
of a good deal of filing down, and in the meantime
plaintiffs must necessarily be expected and required to be
hardened to a certain amount of rough language, and to
occasional acts that are definitely inconsiderate and unkind.
There is no occasion for the law to intervene in every case
where someone's feelings are hurt. There must still be
freedom to express an unflattering opinion . . . .
“‘Conduct is extreme and outrageous when it is so outrageous in character, and
so extreme in degree, as to go beyond all possible bounds of decency, and to be
regarded as atrocious, and utterly intolerable in a civilized community.’” “The
determination whether conduct rises to the level of extreme and outrageous
behavior is a question of law.”
Chidnese v. Chidnese, 708 S.E.2d 725, 738 (N.C. Ct. App. 2011) (citations omitted). North
Carolina courts “‘ha[ve] set a high threshold for a finding that conduct meets the standard’ of
extreme and outrageous conduct.” Id. (citation omitted).
Edwards’s conduct does not meet this standard. First, with regard to Detective
Edwards’s search of Holland’s residence and as recognized previously, a reasonable officer in
Detective Edwards’s position would not have realized she was exceeding the scope of the
warrant. Second, while Detective Edwards may have accused Holland of breaking into people’s
houses and safes and hiding Rhodes’s car because it was stolen, (see Holland Dep., DE # 54-15,
at 32), as well as threatened to auction Holland’s seized property, (id. at 44), and while her
statements may have been unnecessary, hurtful, rude, and even untrue, that conduct simply does
6
Although Holland asserts her emotional distress claims against Agent Clemmons too, (see Compl., DE # 1-2, ¶¶
99-104, 106-13), there is no evidence that Agent Clemmons engaged in the conduct of which Holland complains,
and her argument against summary judgment on these claims does not suggest otherwise.
20
not exceed all possible bounds of decency tolerated by society. Therefore, Holland cannot
satisfy this essential element of her claim, and defendants are entitled to summary judgment on
Holland’s intentional infliction of emotional distress claim.
Turning to Holland’s claim for negligent infliction of emotional distress, defendants
contend that the officers are entitled to public official immunity.
Under North Carolina law, police officers are public officials who may be entitled
to public official immunity. See, e.g., Prior v. Pruett, 143 N.C. App. 612, 623,
550 S.E.2d 166, 173–74 (2001); Schlossberg v. Goins, 141 N.C. App. 436, 445,
540 S.E.2d 49, 56 (2000). Under North Carolina law, a “[p]ublic official [ ]
cannot be held individually liable for damages caused by mere negligence in the
performance of [his] governmental or discretionary duties,” unless his conduct
“was corrupt or malicious, or . . . outside of and beyond the scope of his duties.”
Meyer v. Walls, 347 N.C. 97, 112, 489 S.E.2d 880, 888 (1997); Smith v. State, 289
N.C. 303, 331, 222 S.E.2d 412, 430 (1976); Prior, 143 N.C. App. at 623, 550
S.E.2d at 173–74. A public officer “acts with malice when he wantonly does that
which a man of reasonable intelligence would know to be contrary to his duty and
which he intends to be prejudicial or injurious to another.” Grad v. Kaasa, 312
N.C. 310, 313, 321 S.E.2d 888, 890 (1984). The act must be “done of wicked
purpose, or . . . done needlessly, manifesting a reckless indifference to the rights
of others.” Id. at 313, 321 S.E.2d at 891 (quotation omitted).
Smith v. Garcia, No. 5:08-CV-577-D, 2010 WL 3361653, at *3 (E.D.N.C. Aug. 20, 2010)
(alterations in original). “Malice and corruption are difficult to show because ‘it is presumed that
a public official in the performance of his official duties acts fairly, impartially, and in good faith
and in the exercise of sound judgment or discretion, for the purpose of promoting the public
good and protecting the public interest.’” Id. at *4 (quoting In re Annexation Ordinance No.
300–X, 284 S.E.2d 470, 472 (N.C. 1981)).
Plaintiffs have not come forward with evidence to show that Detective Edwards acted
with malice or corruption or beyond the scope of her duties in regards to her participation in the
search of Holland’s residence or her accusatory and threatening statements to Holland. Detective
Edwards possessed information from King to indicate that there was stolen property within
21
Holland’s residence; she was executing a facially valid search warrant; and, Holland had
admitted to Detective Edwards that she (Holland) had purchased a television from King, Priest,
and Vernon, which Detective Edwards knew to have been stolen. At best, Detective Edwards
may have been negligent, but negligent conduct is not enough to overcome the presumption that
she acted in good faith and in the exercise of sound judgment. Therefore, defendants are entitled
to summary judgment on Holland’s negligent infliction of emotional distress claim.
iii. Claims Against Sheriff Ingram
Plaintiffs have also alleged their state law claims against Sheriff Ingram in his official
capacity. Because the court has concluded that none of plaintiffs’ state law claims survive, there
is no basis upon which to hold Sheriff Ingram.
iv. Defamation Claim
Agent Clemmons asserts a counterclaim for defamation per se against Rhodes.
According to several of Agent Clemmons’s relatives, Rhodes told them that Agent Clemmons
had in engaged in police brutality against him. (J. Clemmons Aff., DE # 57-3, ¶ 4; Gay Aff., DE
# 57-4, ¶4; Lovett Aff., DE # 57-5, ¶4.) Rhodes acknowledges that he told another law
enforcement officer, Ashley Long, as well as Agent Clemmons’s aunts that Agent Clemmons
had used force against him. (See Rhodes Dep., DE # 54-12, at 99-101.) Agent Clemmons’s
argument in support of summary judgment is based on his version of the facts--that he did not
use any force whatsoever on Rhodes--and therefore, Rhodes’s statements to the contrary are
false. As discussed previously in conjunction with Rhodes’s excessive force claim, it is disputed
whether Agent Clemmons used force against Rhodes. Accordingly, Agent Clemmons’s motion
for summary judgment will be denied.
22
C. Liability on the Bond
Because it is not clear whether plaintiffs contend that their federal claims are covered by
the Sheriff’s bond issued by defendant Western Surety Company, the court will not dismiss the
company.
III. CONCLUSION
For the foregoing reasons, defendants’ motion for summary judgment is GRANTED IN
PART and DENIED IN PART. Defendant Timothy Clemmons’s motion for summary judgment
on his counterclaim is DENIED. Defendant John Ingram is DISMISSED. All of Holland’s
claims are DISMISSED. Rhodes’s § 1983 claim based on the search of Holland’s residence and
false imprisonment claim are DISMISSED. Rhodes’s § 1983 claims based on excessive force
and exceeding the scope of consent to search and Clemmons’s counterclaim remain.
This 25 August 2015.
__________________________________
W. Earl Britt
Senior U.S. District Judge
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