EDWARDS v. CITY OF CONCORD, et al

Filing 23

MEMORANDUM OPINION and ORDER re 6 MOTION to Dismiss in Part Pursuant to Fed.R.Civ.P.12(b)(6) and 17 NOTICE to Renew Motion to Dismiss by DECKSTER BARLOWE, CITY OF CONCORD. IT IS THEREFORE ORDERED that the motion of Defendants the City and Barlow e to dismiss the third cause of action of the amended complaint (seeking a direct claim under the North Carolina Constitution) pursuant to Federal Rule of Civil Procedure 12(b)(6) (Docs. 6 & 17 ) is GRANTED. Signed by JUDGE THOMAS D. SCHROEDER on 12/7/2011. (Solomon, Dianne)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
RANDY EDWARDS,

)
)
)
)
)
)
)
)
)
)
)

Plaintiff,
v.
CITY OF CONCORD,
and DECKSTER BARLOWE,
Individually and Officially,
Defendants.

1:10CV782

MEMORANDUM OPINION AND ORDER
THOMAS D. SCHROEDER, District Judge.
This

case

arises

out

of

injury

Plaintiff

Randy

Edwards

(“Edwards”) allegedly suffered in connection with his arrest by
Defendant

Deckster

Barlowe

(“Barlowe”),

a

Sergeant

Concord (North Carolina) Police Department.
complaint
Barlowe

asserts

in

his

causes

of

individual

action

capacity

for

the

Edwards‟ amended

false

(first

with

arrest

cause

of

against
action),

assault and battery against Barlowe in his individual capacity
(second

cause

Constitution

of

action),

against

Barlowe

violation
in

his

of

the

official

North

Carolina

capacity

(third

cause of action), and violation of the Fourth and Fourteenth
Amendments

to

the

United

States

Constitution

pursuant

to

42

U.S.C. § 1983 against Barlowe in his individual capacity (fourth

cause of action).1

(Doc. 13-1 at 7-11.)

Before the court is the

motion of Defendants Barlowe and the City to dismiss Edwards‟
third cause of action under the North Carolina Constitution,
pursuant to Federal Rule of Civil Procedure 12(b)(6), on the
grounds

that

it

is

not

adequate remedy at law.

cognizable
(Doc. 6.)

because

Edwards

has

an

The motion has been fully

briefed and is ready for resolution.

For the reasons set forth

below, the motion will be granted.
I.

BACKGROUND
In considering a Rule 12(b)(6) motion, the court “accept[s]

as

true

all

complaint,”

of

the

Erickson

factual
v.

allegations

Pardus,

551

contained

U.S.

89,

94

in

the

(2007)

(citations omitted), which provides as follows:
Edwards operated Bubba‟s Towing service in the Concord area
and had contracts with several businesses that authorized him to
tow vehicles parked in a manner prohibited by the business or
property owner.

(Doc. 13-1 ¶¶ 4, 5.)

On August 4, 2008, after

9:00 p.m., Edwards drove his tow truck to Lock Mill Plaza, a
parking area covered by one of his contracts, and found several
vehicles

without

a

green

windshield

sticker

property owner to indicate permission to park.
1

provided

by

the

(Id. ¶¶ 7-11.)

The amended complaint contains inconsistent and duplicate paragraph
numbers. Unless otherwise indicated, the court‟s citations hereafter
will be to the numbering beginning on page 3 of the amended complaint
under “Facts,” i.e., paragraph number 4.

2

Signs

posted

at

the

parking

lot

provided

Bubba‟s Towing if a vehicle were towed.
towed

all

the

practice,

offending

contacted

vehicles

the

City

and,

police

notice

to

contact

(Id. ¶ 9.)
consistent

dispatcher

Edwards

with

to

prior

report

a

description of each towed vehicle, including the license tag
(Id. ¶ 12.)

number.

Jeffrey

Busey

(“Busey”),

a

tenant

of

Lock

Mill

Plaza,

realizing that his wife‟s vehicle he had driven (which did not
have the required window sticker) was missing from the Lock Mill
Plaza

lot,

stolen.2

called

City

(Id. ¶¶ 13-14.)

other officers.
home.

the

police

to

report

the

vehicle

as

Barlowe responded to the call with

The officers and Busey proceeded to Edwards‟
Edwards met Barlowe at his front door,

(Id. ¶¶ 15-16.)

where Barlowe accused Edwards of vehicle theft and Edwards tried
to

explain

that

he

had

a

contract

to

tow

the

vehicle

and

informed the Concord police dispatcher about each car towed.
Busey,

standing

in

the

street,

began

shouting

accusing him of taking the vehicle illegally.

at

Edwards,

(Id. ¶¶ 18-20.)

Barlowe ordered Edwards to disclose the location of the
towed vehicle, threatening to arrest him if he did not.
21.)

Edwards

stated

that

he

would

not

unless the owner paid the towing charges.
2

release

the

(Id. ¶
vehicle

Understanding that

Busey was identified and named a defendant in the first cause of
action (false arrest) in the amended complaint (Doc. 13-1) but was
dismissed thereafter.

3

Barlowe was about to arrest him, Edwards placed his keys and
wallet inside the front door.

(Id. ¶¶ 21-22.)

At that point,

Barlowe seized Edwards, forcibly twisting his arms and tearing
tendons

in

his

(Id. ¶¶ 23-24.)

shoulder,

causing

immediate

and

severe

pain.

Barlowe placed Edwards in another officer‟s car

with the direction that he be transported to the jail.
¶ 25.)

(Id.

Edwards was photographed and fingerprinted, held at the

jail for an unstated period, and released without being charged.
Busey was allowed to retrieve the automobile without paying the
towing fee.

(Id. ¶ 38.)

Edwards subsequently underwent surgery

and two years after the incident had not fully recovered.

(Id.

¶¶ 39-40.)
This action was initially filed in the Superior Court of
Cabarrus County, North Carolina, and was removed to this court
on

the

grounds

of

federal

Edwards‟ § 1983 claim.3
II.

question

jurisdiction

based

on

(Doc. 1.)

ANALYSIS
The purpose of a motion pursuant to Federal Rule of Civil

Procedure 12(b)(6) is to “test[] the sufficiency of a complaint”
and not to “resolve contests surrounding the facts, the merits
of a claim, or the applicability of defenses.”
3

Republican Party

Edwards claims that Concord removed this action to evade
Carolina state court which had denied a motion to dismiss by
and another officer on the same grounds in a similar lawsuit.
at 4.)
The court only concerns itself with whether federal
jurisdiction exists, which it does pursuant to Edwards‟ claim
U.S.C. § 1983.

4

a North
the City
(Doc. 9
question
under 42

of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992) (citation
omitted).

In considering a Rule 12(b)(6) motion, a court “must

accept as true all of the factual allegations contained in the
complaint,”

Erickson,

551

U.S.

at

94,

and

all

reasonable

inferences must be drawn in the plaintiff‟s favor, Ibarra v.
United States, 120 F.3d 472, 474 (4th Cir. 1997).

Whether the

facts alleged present a cognizable claim is a question of law
for the court.
176,

179-80

See Philips v. Pitt Cnty. Mem‟l Hosp., 572 F.3d

(4th

Cir.

2009)

(district

court‟s

dismissal

of

complaint under Rule 12(b)(6) reviewed de novo).
The subject of Defendants‟ motion -- Edwards‟ third cause
of action in which Barlowe is sued in his official capacity only
-- alleges excessive and unreasonable force in violation of the
Declaration of Rights contained in Article I, § 19 of the North
Carolina Constitution:
In the alternative, should it be determined that
Defendant Barlowe had probable cause to arrest
Plaintiff or that he did not intentionally or
maliciously
injure
Plaintiff,
but
was
merely
negligent, the level of force used was still excessive
and unreasonable.
Given the City of Concord‟s
preservation
of
governmental
immunity
against
a
negligence claim against Barlowe in his official
capacity, Plaintiff would not have an adequate remedy
at
law
should
it
be
determined
that
Barlowe
negligently injured Plaintiff.
Therefore, he alleges
this alternative claim for relief under the state
constitution, which is brought against Defendant
Barlowe in his official capacity only.

5

(Doc.

13-1

Carolina

¶

52.)

Supreme

The

Court

parties

has

held

acknowledge
that

“in

that

the

the

absence

North
of

an

adequate state remedy,” Craig v. New Hanover Cnty. Bd. of Educ.,
363 N.C. 334, 342, 678 S.E.2d 351, 356-57 (2009), one whose
state

constitutional

claim

under

direct

the

rights

North

constitutional

have

been

Carolina
claim

is

abridged

Constitution;
recognized.

has

a

direct

otherwise,
They

no

disagree,

however, on how to apply this principle to this case.
Defendants argue that the third cause of action must be
dismissed

because

Edwards‟

claims

against

Barlowe

for

false

arrest (first cause of action) and assault and battery (second
cause of action) constitute adequate remedies under state law.
(Doc. 7 at 5-6.)

Either claim, they assert, “could provide

Plaintiff with the same type of relief as his claim under the
North Carolina Constitution, that is, monetary damages for his
alleged injuries caused by the alleged arrest without probable
cause

and

arrest.”

alleged

use

(Id. at 6.)

of

excessive

force

pursuant

to

the

According to Defendants, an “adequate

remedy” need only provide Edwards “an opportunity to „enter the
Courthouse doors‟” to present his intentional tort claims for
damages,

and these two claims

provide

relief under the circumstances.”

him

a “possibility of

(Id. at 6-8.)

Edwards argues that his North Carolina constitutional claim
should be permitted at this stage because if he fails to recover
6

on his two intentional tort claims, he will have no adequate
state law remedy for any negligence claim against Barlowe under
North

Carolina

potential

law.

This

negligence

capacity

would

governmental
negligence

be

claim

he

contends,

against

Barlowe

Defendants‟

(Doc.

against

so,

by

barred

immunity

claim

is

the
9

at

Barlowe

in

7-11),
his

in

and

because

his

official

assertion
a

a

of

potential

individual

capacity

would be barred by public official immunity (which Barlowe has
not waived) (Id. at 11-12).
must

provide

“the

Because an adequate remedy at law

possibility

of

relief

under

the

circumstances,” Edwards contends, this may be frustrated should
both tort claims be denied because a jury finds that Barlowe
acted with probable cause and caused Edwards‟ injury without
intent or malice.
Article

I,

(Id. at 17.)
§

19

of

the

North

Carolina

Constitution

provides:
No person shall be taken, imprisoned, or disseized of
his freehold, liberties, or privileges, or outlawed,
or exiled, or in any manner deprived of his life,
liberty, or property, but by the law of the land. No
person shall be denied the equal protection of the
laws;
nor
shall
any
person
be
subjected
to
discrimination by the State because of race, color,
religion, or national origin.
A

claim

under

this

section

“is

self-executing,

and

neither

requires any law for its enforcement, nor is susceptible of
impairment by legislation.”

Amward Homes, Inc. v. Town of Cary,

7

__ N.C. App. __, __ 698 S.E.2d 404, 419 (2010) (quoting Sale v.
Highway Comm‟n, 242 N.C. 612, 617, 89 S.E.2d 290, 295 (1955)).
The North Carolina Supreme Court articulated the right in Corum
v. University of North Carolina, 330 N.C. 761, 413 S.E.2d 276
(1992), noting that because the common law provides a remedy for
every wrong, “in the absence of an adequate state remedy, one
whose
direct

state

constitutional

claim

against

the

rights
State

have

been

abridged

under

[the

North

has

a

Carolina]

Constitution.”

Id. at 782, 785-86, 413 S.E.2d at 289, 291-92

(holding

sovereign

that

immunity

could

not

bar

a

state

constitutional claim for violation of free speech rights where
no other adequate remedy at law existed); see Petroleum Traders
Corp. v. State, 190 N.C. App. 542, 547-48, 660 S.E.2d 662, 665
(2008) (agreeing with statement that “Corum articulated a waiver
of

sovereign

immunity

specifically

for

claims

under

the

Declaration of Rights” (i.e., Article I of the North Carolina
Constitution)).
claim

. . .

a

Thus,
plaintiff

“[t]o

assert

a

direct

must

allege

that

no

constitutional
adequate

remedy exists to provide relief for the injury.”

state

Copper v.

Denlinger, 363 N.C. 784, 788, 688 S.E.2d 426, 428 (2010) (citing
Corum and rejecting direct constitutional claim because a state
law remedy existed).

An adequate remedy is one that “provide[s]

the possibility of relief under the circumstances.”

Craig, 363

N.C. at 340, 678 S.E.2d at 355. It may be one existing at common
8

law or one created by statute.

See Hughes v. Bedsole, 48 F.3d

1376, 1383 n.6 (4th Cir. 1995) (citing Alt v. Parker, 112 N.C.
App. 307, 435 S.E.2d 773 (1993)).

Notably, the North Carolina

Supreme Court cautions that in making its assessment, a court
“must bow to established claims and remedies where these provide
an alternative to the extraordinary exercise of its inherent
constitutional power.”

Corum, 330 N.C. at 784, 413 S.E.2d at

291.
Apart from Corum, the only North Carolina Supreme Court
opinion to address the scope of a constitutional remedy in any
significant detail

is

Craig.

There, the plaintiff

sued

the

county board of education and school principal in her individual
and official capacities for negligence and three violations of
the North Carolina Constitution (including Article 1, § 19) for
their failure to adequately protect him from a sexual assault.
Craig, 363 N.C. at 336 & n.4, 678 S.E.2d at 352 & n.4.

The

defendants moved for summary judgment and asserted governmental
immunity.

The trial court granted the motion, and the court of

appeals affirmed.

The North Carolina Supreme Court reversed,

observing that because sovereign immunity would deny plaintiff
“the opportunity to enter the courthouse doors and present his
claim,”

he

would

be

precluded

from

pursuing

his

“direct

colorable constitutional claims” and be “left with no remedy for
his alleged constitutional injuries.”
9

Id. at 340, 678 S.E.2d at

356.

The Court held, therefore, that a plaintiff‟s common law

negligence claim is not an “adequate remedy at state law” when
“it

is

entirely

immunity.”

precluded

by

the

application

of

sovereign

Id. at 342, 678 S.E.2d at 356-57.

Defendants

do

not

dispute

Edwards‟

contention

that

any

negligence claim against Barlowe in his official capacity would
be barred by immunity.4

See Thompson v. Town of Dallas, 142 N.C.

App.

S.E.2d

651,

654-55,

543

901,

904

(2001)

(finding

that

governmental immunity, which extends to an officer sued in his
official capacity, bars a negligence claim absent consent to
suit or a waiver through the purchase of liability insurance).
Nor do Defendants contest that any negligence claim brought by
Edwards against Barlowe in his individual capacity may be barred
under the public officers‟ immunity doctrine.
Doc. 11.)
S.E.2d

166,

(Doc. 9 at 11-12;

See Prior v. Pruett, 143 N.C. App. 612, 623, 550
173

(2001)

(stating

that

a

public

official,

including a police officer, is “[generally] immune from personal
liability for mere negligence in the performance of his duties,
but he is not shielded from liability if his alleged actions
4

Edwards‟ amended complaint alleges that the City purchased insurance
that excludes coverage for claims subject to governmental immunity.
(Doc. 13-1 ¶ 3.)
Defendants also contemplate for purposes of this
motion that governmental immunity would bar any negligence claim.
(Doc. 7 at 7 n.1.)
While the court confines itself to the amended
complaint, it notes that Defendants‟ assertion of immunity comports
with their answer. (Doc. 18 ¶ 3 (admitting insurance policy and that
immunity has not been waived), Second Defense (qualified immunity),
Third Defense (governmental immunity), and Fourth Defense (public
officer immunity).)

10

were corrupt or malicious or if he acted outside and beyond the
scope of his duties” (alteration in original)); Thompson, 142
N.C. App. at 655, 543 S.E.2d at 904-05 (same).

Moreover, the

City does not challenge Edwards‟ assertion that he could not
pursue

it

and

Barlowe

in

his

official

capacity

for

the

intentional torts alleged in his first two causes of action
because such claims would be barred by governmental immunity in
light of the City‟s insurance policy provisions.

(Doc. 9 at 5-6

(citing admission in Doc. 8, Answer at 1-2 ¶ 3; see Doc. 18,
answer to amended complaint at 2 ¶ 3(same)).)

Thus, the court

assumes (without deciding) for purposes of Defendants‟ motion
that Edwards‟ potential claims against the City and Barlowe in
his official capacity would be barred by some form of immunity.5
The question, then, is whether Edwards‟ intentional tort claims
against Barlowe in his individual capacity fail to provide an
adequate remedy at law so as to render his state constitutional
claim cognizable.

5

The court proceeds with this assumption without deciding whether
Edwards was incapable of alleging a claim against Barlowe in his
individual capacity outside an immunity bar.
Edwards‟ amended
complaint alleges that Barlowe‟s actions in his individual capacity
were “intentional, deliberate, malicious, willful and wanton, and
exhibited a reckless disregard for Plaintiff‟s rights and safety.”
(Doc. 13-1 at 2 ¶ 4.)
This is evidence that Edwards believes the
alleged conduct may rise to a level under Thompson that survives the
immunity bar as to a claim against Barlowe in his individual capacity.
See Thompson, 142 N.C. App. at 655, 543 S.E.2d at 904-05 (requiring
malice, corruption, or conduct outside the scope of official
authority).

11

Edwards contends that his intentional tort claims may fail
as a factual matter if he is unable to prove that his arrest was
unlawful

or

willful.

that

Barlowe‟s

Because

each

of

use

of

force

his

state

was

law

malicious

claims

turns

or
on

“distinct fact finding about distinct legal questions” and “are
not different sides of the same proverbial coin, like the free
speech

and

wrongful

discharge

claims”

noted

in

Philips,

he

contends, he lacks a remedy comparable to his negligence claim.
(Doc.

9

at

19-20.)

Edwards

urges

the

court,

therefore,

to

compare his state constitutional claim to his barred negligence
claim rather than to his intentional tort claims.

The court

should do so, he contends, because in Craig the Court stated
that “an adequate remedy must provide the possibility of relief
under the circumstances,” and the plaintiff may bring his state
constitutional claims “based on the same facts that formed the
basis of his common law negligence claim.”

(Doc. 9 at 14, 17

(quoting Craig, 363 N.C. at 340, 678 S.E.2d at 355).)
according

to

Edwards,

Corum

and

its

progeny

prevent

Defendants from limiting his negligence-based remedy.
12.)

However,

North

Carolina

courts

have

Thus,

declined

the

(Id. at
to

be

persuaded by these arguments.
A plaintiff does not lack an adequate remedy merely because
his burden of proof on his available claim may be different.

In

Rousselo v. Starling, 128 N.C. App. 439, 448-49, 495 S.E.2d 725,
12

731-32 (1998), for example, the plaintiff argued that a false
imprisonment common law remedy was inadequate because in order
to recover against the officer in his individual capacity he
would

have

to

show

that

the

officer

acted

corruption, or beyond the scope of his duty.

with

malice,

The court noted

that it had previously held that “an attempt to vindicate [a
plaintiff‟s] right to be free from restraint . . . is the same
interest

protected

imprisonment.”

by

his

common

law

claim

for

false

Id. at 447, 495 S.E.2d at 730-31 (noting claim

of false imprisonment would compensate plaintiff for the “same
injury” claimed in his direct constitutional action).

The court

concluded that “merely because the existing common law claim
might require more of him” than the constitutional claim did not
render the former inadequate.

Id. at 448-49, 495 S.E.2d at 731-

32.
Nor

have

North

Carolina

courts

found

that

an

available

claim fails to provide an adequate remedy because a plaintiff
may not be able to meet his factual proof.

To the contrary, the

courts have emphasized that “[a]n adequate state remedy exists
if, assuming the plaintiff‟s claim is successful, the remedy
would compensate the plaintiff for the same injury alleged in

13

the direct constitutional claim.”6

Estate of Fennell ex rel.

Fennell v. Stephenson, 137 N.C. App. 430, 437, 528 S.E.2d 911,
915-16

(2000)

(finding

that

a

common

law

claim

of

false

imprisonment provides an adequate remedy for unlawful restraint
and that a common law claim for trespass to chattel provides an
adequate remedy for unlawful search), rev‟d in part on other
grounds, 354 N.C. 327, 554 S.E.2d 629 (2001); see Davis v. Town
of Southern Pines, 116 N.C. App. 663, 675-76, 449 S.E.2d 240,
248 (1994) (finding that plaintiff‟s false imprisonment claim,
if successful, would compensate for the injury plaintiff claimed
in

her

direct

state

constitutional

claim

for

unlawful

restraint); Googerdy v. N.C. Agric. & Technical State Univ., 386
F.

Supp.

2d

618,

629

(M.D.N.C.

2005)

(same,

and

cataloging

several North Carolina cases for this proposition); Olvera v.
Edmundson, 151 F. Supp. 2d 700, 705 (W.D.N.C. 2001) (concluding
that

“[b]ecause

Plaintiff

for

a
the

wrongful
same

death

injuries

claim

could

(death)

as

compensate
the

state

constitutional law claim, the latter must be dismissed” under
Rule

12(b)(6)).

As

the

Court

in

Craig

noted,

Corum

never

guaranteed a recovery; rather, it guarantees an opportunity to
seek redress for the constitutional wrong.
340, 678 S.E.2d at 355-56.

Craig, 363 N.C. at

Indeed, in finding the existence of

6

“Injury” is defined both as the “violation of another‟s legal right,
for which the law provides a remedy; a wrong or injustice” as well as
“[a]ny harm or damage.” Black‟s Law Dictionary 856 (9th ed. 2009).

14

a constitutional remedy, the Court

specifically

distinguished

situations where a plaintiff could not establish his common law
remedy because of the expiration of a statute of limitations.
Id.; Wilkins v. Good, No. Civ. 4:98CV233, 1999 WL 33320960, at
*8

(W.D.N.C.

Jul.

29,

1999)

(dismissing

alternative

constitutional claim where plaintiffs failed to comply with the
statute of limitations for their state law claim).7
Edwards‟ argument that a remedy is adequate only if it is
successful misconstrues what the North Carolina courts have held
and the meaning of “remedy.”

A “remedy” is “[t]he means of

enforcing a right or preventing or redressing a wrong; legal or
equitable relief.”

Black‟s Law Dictionary 1407 (9th ed. 2009).

A “remedy” is not synonymous with an actual recovery.
it

is

the

“possibility

of

relief

under

Craig, 363 N.C. at 340, 678 S.E.2d at 355.
7

the

Rather,

circumstances.”

Consistent with this

Nor does it matter that Edwards‟ intentional tort claims provide a
remedy against Barlowe only in his individual capacity.
A remedy is
not inadequate only because it fails to provide a remedy against the
state. See Rousselo, 128 N.C. App. at 448, 495 S.E.2d at 731 (noting
that “Corum did not hold that there had to be a remedy against the
State of North Carolina in order to foreclose a direct constitutional
claim”); Phillips v. Gray, 163 N.C. App. 52, 57-58, 592 S.E.2d 229,
232-33 (2004) (affirming summary judgment against the plaintiff‟s
claim of wrongful discharge in violation of free speech under the
North Carolina Constitution because the plaintiff‟s rights were
adequately protected by a common law wrongful discharge in violation
of public policy claim brought against a sheriff in his individual
capacity); Johnson v. Causey, No. COA09-1712, 701 S.E.2d 404, 2010 WL
4288511, at *10 (N.C. App. Nov. 10, 2010) (unpublished table opinion)
(adequate remedy existed when Sheriff entitled to judgment as matter
of law on negligence and other claims and where misconduct claims
against former Deputy Sheriff in his individual capacity remained
pending).

15

definition, the North Carolina courts have held that a remedy is
adequate if the constitutional right sought to be vindicated is
protected by an available state law claim.
116

N.C.

App.

at

“[p]laintiff‟s

675-76,

449

constitutional

S.E.2d
right

at
not

See, e.g., Davis,
248
to

(finding
be

that

unlawfully

imprisoned and deprived of her liberty are adequately protected
by her common law

claim

of false imprisonment”

because that

claim has the potential, if successful, to compensate her for
the

injury

she

claims

in

her

direct

constitutional

claim

(emphasis added)).8
Edwards also simply reads too much into Craig.

In Craig,

the Court only held that the plaintiff could not be prevented
from pursuing a colorable constitutional claim because sovereign
immunity

barred

altogether.

him

See

3608023, at *8

from

Gaddy

v.

entering
Yelton,

the
No.

courthouse
1:10CV214,

doors

2011

WL

(W.D.N.C. Aug. 16, 2011) (finding that where

governmental immunity did not bar plaintiff from “enter[ing] the
8

Edwards cites to an October 5, 2010, order in Ruiz v. City of
Concord, No. 10-CVS-1586 (Cabarrus Cnty., N.C. Super. Ct. Oct. 5,
2010), in which a North Carolina trial court denied a motion to
dismiss a claim against the City and the individual defendant officer
in his official capacity under Article I, § 19, of the North Carolina
Constitution.
(Doc. 9-1.)
The one and one-half page order states
only that “Plaintiff‟s claim against [the individual defendant]
individually for assault does not represent an adequate remedy at law.
If Plaintiff cannot prove [the officer] acted intentionally in
injuring her, she would still have a claim for Negligence – that the
level of force used in arresting her was unreasonable or excessive –
absent the assertion of sovereign or governmental immunity.” (Id. at
2.) This order is devoid of any citation to authority and, as a trial
court order, lacks any precedential effect.

16

courthouse doors” because his state law claims of false arrest
and assault and battery, among others, against the officer in
his individual capacity remained viable, an adequate remedy at
state law existed); cf. McFadyen v. Duke Univ., 786 F. Supp. 2d
887,

1010

(M.D.N.C.

constitutional

claim

remained unresolved).
Edwards

urges,

2011)

(denying

because

motion

viability

to

of

dismiss

immunity

direct
defense

To expand the definition of “remedy” as

therefore,

would

enlarge

the

constitutional

remedy beyond that authorized by the North Carolina courts.
Here, Edwards has alleged two intentional tort claims for
false arrest and assault and battery, which the

court finds

serve to protect the same constitutional rights to be free from
improper restraint and excessive force he seeks to vindicate
with his alternative direct constitutional claim.
claims

provide

him

“the

possibility

of

relief

Thus, these
under

the

circumstances” to vindicate his asserted constitutional injury.
Craig, 363 N.C. at 340, 495 S.E.2d at 355.

Edwards‟ direct

constitutional claim (third cause of action), therefore, will be
dismissed.
III. CONCLUSION
For the reasons stated above,
IT IS THEREFORE ORDERED that the motion of Defendants the
City and Barlowe to dismiss the third cause of action of the
amended

complaint

(seeking

a

direct
17

claim

under

the

North

Carolina

Constitution)

pursuant

to

Federal

Rule

of

Procedure 12(b)(6) (Docs. 6 & 17) is GRANTED.

/s/
Thomas D. Schroeder
United States District Judge
December 7, 2011

18

Civil