SANTIAGO v. MCCLASKEY

Filing 37

MEMORANDUM OPINION AND ORDER signed by MAG/JUDGE L. PATRICK AULD on 3/11/2014; that Plaintiff's Motion for Leave to File Third Amended Complaint (Docket Entry 27 ) is GRANTED. FURTHER that the Clerk shall docket the proposed Thi rd Amended Complaint (Docket Entry 27-1) as a Third Amended Complaint, shall update the case caption accordingly, and shall send Plaintiff summons forms for Defendants Rios, Bacote, Davis, and Auten. FURTHER that Defendants' Motion to Dis miss (Docket Entry 14 ) is GRANTED IN PART and DENIED IN PART in that: (1) Plaintiff's individual capacity claims against Defendants McClaskey, Childers, Gonsalez, and Rios for excessive force (under federal law) and assault (unde r state law) may proceed; (2) Plaintiff's individual capacity claims against Defendants Seagraves, Love, Bacote, and Davis for failure to intervene (under federal law) may proceed; (3) Plaintiff's official capacity claim against Defendant A uten for negligence (under state law) based on a theory of respondeat superior for the inaction of Defendants Bacote and Davis may proceed, subject to the addition of Defendant Auten's surety; (4) all other claims against Defendants McClaskey, C hilders, Gonsalez, Rios, Seagraves, Love, Bacote, Davis, and Auten are dismissed; and (5) all claims against Defendants Smith, City of Concord, and Rowan County are dismissed. FURTHER that, on or before April 11, 2014, Plaintiff shall prepare and shall deliver to the Clerk properly completed summonses for service as to Defendants Rios, Bacote, Davis, and Auten. Failure by Plaintiff to comply with this Order will result in dismissal of these Defendants without prejudice pursuant to Federal Rule of Civil Procedure 41(b). FURTHER that, on or before March 25, 2014, counsel for Defendants McClaskey, Childers, and Gonsalez shall file a Notice stating whether said counsel will represent Defendants Seagraves and Love and will accept s ervice of process on their behalf, which the Court then will effect via the CM/ECF system. If said counsel will represent Defendants Seagraves and Love, the Notice should also indicate whether said Defendants consent to have a United States Magistrat e Judge conduct any and all further proceedings in this case pursuant to 28 U.S.C. § 636(c). FURTHER that, on or before March 25, 2014, Defendants McClaskey, Childers, and Gonsalez shall answer or otherwise respond to the Third Amended Co mplaint. FURTHER that Plaintiff's Motion for Subpoena or Order (Docket Entry 30 ) is DENIED WITHOUT PREJUDICE. FURTHER that Plaintiff's Letter Motion (Docket Entry 32 ) is DENIED AS MOOT. FURTHER that Plaintiff's Fourth Motion to Amend (Docket Entry 33 ) is DENIED AS MOOT. FURTHER that Plaintiff's Letter Motion (Docket Entry 36 ) is DENIED. (Sheets, Jamie)

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

GARCIA RAYMOND SANTIAGO,
Plaintiff,
v.
J.P. MCCLASKEY, DET. K.
CHILDERS, SIX UNKNOWN POLICE
OFFICERS, and DET. GONSALEZ,
Defendants.

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1:12CV93

MEMORANDUM OPINION AND ORDER
This case comes before the Court for rulings on Defendants’
Motion to Dismiss (Docket Entry 14), as well as Plaintiff’s Motion
for Leave to File Third Amended Complaint (Docket Entry 27), Motion
for Subpoena or Order (Docket Entry 30), Letter Motion seeking an
update on other filings (Docket Entry 32 at 1), Fourth Motion to
Amend Complaint (Docket Entry 33),1 and Letter Motion asking that
the Court “look at [Defendant J.P.] McCl[a]skey’s record and the
department’s record” (Docket Entry 36 at 1).

(See Docket Entries

dated Nov. 16, 2012, Jan. 3, 2013, Feb. 8, 2013, Apr. 1, 2013,
Sept. 13, 2013, and Dec. 31, 2013; see also Docket Entry dated Jan.
27, 2012 (assigning case to undersigned Magistrate Judge).)2

For

the reasons that follow, Plaintiff’s Motion for Leave to File Third

1

The Court refers to this untitled Motion as Plaintiff’s
Fourth Motion to Amend Complaint due to its content.
2

The Parties have consented to disposition of this case by
a United States Magistrate Judge. (Docket Entry 31.)

Amended Complaint will be granted, Defendants’ Motion to Dismiss
will be granted in part and denied in part, and Plaintiff’s other
Motions will be denied.
I.

Procedural Background

Plaintiff commenced this case by filing a pro se prisoner form
Complaint under 42 U.S.C. § 1983 alleging generally that Defendants
violated various of his constitutional rights in connection with a
search, seizure, and subsequent detention.
thereafter

filed

an

Amended

Complaint.

(Docket Entry 2.)
(Docket

Entry

He
4.)

Defendants answered the Amended Complaint (Docket Entry 13) and
filed the instant Motion to Dismiss (Docket Entry 14), to which
Plaintiff responded (Docket Entry 26).3

On the same day he made

that response, Plaintiff filed his instant Motion for Leave to File
Third Amended Complaint (Docket Entry 27), to which Defendants
responded (Docket Entry 28).
other instant Motions.

Plaintiff subsequently filed his

(Docket Entry 30, 32, 33, and 36.)

Plaintiff’s proposed Third Amended Complaint alleges the
following eight claims: (1) “Violation of Civil Rights Pursuant to
[T]itle 42 U.S.C. 1983 [(]General Allegations[)]” (Docket Entry 271 at 12-13); (2) “Violation of Civil Rights Pursuant to Title 42
U.S.C. 1983 (Failure to Implement Appropriate Policies Customs and
Practices)” (id. at 13-14); (3) “Violation of Civil Rights Pursuant

3

Before Defendants answered, Plaintiff filed a Second
Amended Complaint (Docket Entry 7), which the Court struck as
unauthorized (see Text Order dated Aug. 8, 2012).
2

to Title 42 U.S.C. 1983 [](Use of Excessive Force)[]” (id. at 1415); (4) “Violation of Civil Rights Pursuant to Title 42 U.S.C.
1983 Duty to Intervence [sic]” (id. at 15-16); (5) “North Carolina
Common Law [] Negligence []” (id. at 16); (6) “North Carolina
Common Law [] Negligent Supervision []” (id. at 16-17); (7) “North
Carolina

Common

Law

[]

Conspiracy

[]”

(id.

at

17-18);

and

(8) “North Carolina Common Law [] Assault []” (id. at 18-19).4
II.

Motion for Leave to File Third Amended Complaint

Given the procedural posture of this case, Plaintiff may
“amend [his] pleading only with [Defendants’] written consent or
the [C]ourt’s leave.”

Fed. R. Civ. P. 15(a)(2).

The applicable

Rule further directs that “[t]he [C]ourt should freely give leave
when justice so requires.” Id.

Under this standard, the Court has

some discretion, “but outright refusal to grant the leave without
any justifying reason appearing for the denial is not an exercise
of discretion . . . .”

Foman v. Davis, 371 U.S. 178, 182 (1962).

Reasons to deny leave to amend a pleading include “undue delay, bad
faith or dilatory motive on the part of the movant, repeated
failure to cure deficiencies by amendments previously allowed,
undue prejudice to the opposing party by virtue of allowance of the
amendment, [and] futility of amendment,” id.; accord Equal Rights

4

The hand-written portions of Plaintiff’s filings do not
use a consistent pattern of capitalization. (See, e.g., Docket
Entries 26, 27, 27-1, 30, 32.) For ease of reading, when quoting
Plaintiff’s filings, this Memorandum Opinion employs standard
capitalization conventions.
3

Ctr. v. Niles Bolton Assocs., 602 F.3d 597, 603 (4th Cir. 2010) (“A
district court may deny a motion to amend when the amendment would
be prejudicial to the opposing party, the moving party has acted in
bad faith, or the amendment would be futile.”).

“An amendment

would be futile if the amended claim would fail to survive a motion
to dismiss for failure to state a claim pursuant to Federal Rule of
Syngenta Crop Prot., Inc. v. EPA, 222

Civil Procedure 12(b)(6).”

F.R.D. 271, 278 (M.D.N.C. 2004).
Defendants have not asserted that Plaintiff seeks leave to
amend in bad faith or with a dilatory motive or that allowing the
amendment would cause undue prejudice.

(See Docket Entry 28.)

No

discovery has taken place and the Court neither has entered a
scheduling

order

nor

has

set

a

trial

date.

Accordingly,

Plaintiff’s Motion for Leave to File Third Amended Complaint
(Docket

Entry

27)

will

be

granted

and

Defendants’

arguments

regarding futility (Docket Entry 28 at 5-11) will be addressed in
conjunction with Defendants’ Motion to Dismiss, in light of the
facts as pled in the Third Amended Complaint (Docket Entry 27-1).5

5

Plaintiff’s instant Fourth Motion to Amend seeks to add
defendants, but indicates that the proposed additional Defendants
“are the same names that [Plaintiff] submitted earlier and they may
have already been added but [he] [had] not recived [sic] any
confirmation[.]” (Docket Entry 33 at 1.) Because the Court will
grant Plaintiff’s Motion for Leave to File Third Amended Complaint,
which reflects the changes Plaintiff requests in his Fourth Motion
to Amend, the Court will deny the latter Motion as moot.
4

III.
A.

Motion to Dismiss
Factual Background

Plaintiff’s Third Amended Complaint, read in a light most
favorable to Plaintiff,6 alleges the following:
On the evening of August 15, 2011, Plaintiff heard knocking at
the door of his home “followed by ‘Police open the door.’” (Docket
Entry 27-1 at 8.)

Before Plaintiff could reach the door, he

encountered “several police officers advancing in his direction
pointing weapons and flashlights” in the hallway outside his
bedroom. (Id.) Plaintiff “emmediatly [sic] raised his hands above
his head and froze,” but one of the advancing officers struck him
“with something long, black and cylendrical [sic] (believed by
Plaintiff to be a blackjack).”

(Id.)

The officers dragged

Plaintiff into the living room, where Defendants McClaskey, K.
Childers, and R. Gonsalez “landed a flurry of vicious kicks and
stomps to [] Plaintiff[’s] sid [sic], back, shoulders, neck and
head, causing severe pain, bruising and partially dislodging a
tooth that would later have to be removed.”

(Id. at 8-9.)7

At the

same time, Defendant Uvaldo Rios, while kicking Plaintiff’s legs

6

At this stage, “the [C]ourt should accept as true all
well-pleaded allegations and should view the complaint in a light
most favorable to the plaintiff.” Mylan Labs, Inc. v. Matakari, 7
F.3d 1130, 1134 (4th Cir. 1993).
7

The Third Amended Complaint identifies Defendants
McClaskey, Childers, and Gonsalez as police officers employed by
the City of Concord. (See Docket Entry 27-1 at 4.)
5

open, “landed a severe kick to the sensative [sic] area between the
scrotum and the anus causing Plaintiff excruciating pain and severe
damage.”

(Id. at 9.)8

Once the officers had Plaintiff handcuffed,

Defendant Rios “snatched Plaintiff to his feet by one arm[,]
dislocating

his

right

excruciating pain.”

shoulder

causing

severe

damage

and

(Id.)

During these events, Plaintiff “followed all instructions of
[Defendant] officers, possesed [sic] no weapon on his person or
otherwise
Further,

possed
the

[sic]

Third

any

Amended

threat

to

Complaint

the
adds

officers.”
Defendants

(Id.)
Kelly

Seagraves, Elizabeth Love, G. Bacote, and J. Davis (presumably,
along with Defendant Rios, in place of the “Six Unknown Police
Officer[s]” named in the Amended Complaint (see Docket Entry 4 at
2)), the four of whom it alleges “where [sic] present and witnessed
the [excessive force by] Defendants Childers, Rios, McClaskey and
Gonsalez but took no action to intervene or report the incident.”
(Docket Entry 27-1 at 9-10.)9

8

The Third Amended Complaint identifies Defendant Rios as
a police officer employed by the City of Concord.
(See Docket
Entry 27-1 at 5.) However, Defendants affiliated with the City of
Concord have stated that, “[u]pon information and belief, Defendant
‘Rios’ is Ubaldo Rios, a Special Agent employed by the United
States Department of Homeland Security.” (Docket Entry 28 at 2
n.1.)
9

The Third Amended Complaint identifies Defendants
Seagraves and Love as police officers employed by the City of
It further identifies
Concord.
(See Docket Entry 27-1 at 5.)
Defendants Bacote and Davis as Deputy Sheriffs employed in Rowan
County. (See id. at 6-7.)
6

The Third Amended Complaint asserts that Defendant officers
“had no adequate training regarding entering on [sic] occupied
dwelling to serve a warrent [sic] and make on [sic] arrest or
reasonable use of force.”

(Id. at 10.)

It also adds as Defendants

Chief Guy Smith (of the City of Concord Police Department), Sheriff
Kevin Auten (of Rowan County), the City of Concord, and Rowan
County,

and

promulgate

states
policies

that

they

required

failed
to

to

prevent

conduct

training

unnecessary

harm

or
to

suspects and that they failed to supervise Defendant officers.
(Id.)

Based on all the foregoing events, the Third Amended

Complaint alleges that Plaintiff suffered physical and emotional
trauma, including a decreased ability to perform normal everyday
activities, an ongoing testicular infection, erectile dysfunction,
as well as ongoing back and shoulder pain.
B.

(Id. at 11-12.)

Standard

Under Federal Rule of Civil Procedure 12(b)(6), a complaint
falls short if it does not “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) (emphasis

added) (internal citations omitted) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)).

This standard “demands more

than an unadorned, the-defendant-unlawfully-harmed-me accusation.”
Id.

In other words, “the tenet that a court must accept as true

all of the allegations contained in a complaint is inapplicable to

7

legal conclusions.
of

action,

suffice.”

Threadbare recitals of the elements of a cause

supported

by

mere

conclusory

statements,

do

not

Id.

“[D]etermining whether a complaint states on its face a
plausible claim for relief and therefore can survive a Rule
12(b)(6) motion . . . requires the reviewing court to draw on its
judicial experience and common sense.”
F.3d 186, 193 (4th Cir. 2009).

Francis v. Giacomelli, 588

Moreover, although the Supreme

Court has reiterated the importance of affording pro se litigants
the benefit of liberal construction, Erickson v. Pardus, 551 U.S.
89, 94 (2007), the United States Court of Appeals for the Fourth
Circuit has “not read Erickson to undermine Twombly’s requirement
that

a

pleading

contain

more

than

labels

and

conclusions,”

Giarratano v. Johnson, 521 F.3d 298, 304 n.5 (4th Cir. 2008)
(internal quotation marks omitted) (applying Twombly in dismissing
pro se complaint); accord Atherton v. District of Columbia Off. of
Mayor, 567 F.3d 672, 681-82 (D.C. Cir. 2009) (“A pro se complaint
. . . ‘must be held to less stringent standards than formal
pleadings drafted by lawyers.’

But even a pro se complainant must

plead ‘factual matter’ that permits the court to infer ‘more than
the mere possibility of misconduct.’” (quoting Erickson, 551 U.S.
at 94, and Iqbal, 556 U.S. at 679, respectively)).

8

C.

Excessive Force

Defendants do not contest that Plaintiff’s individual capacity
excessive force claims against Defendants McClaskey, Childers,
Gonsalez, and Rios survive a motion to dismiss.
15 at 5-12; Docket Entry 28 at 5-11.)

(See Docket Entry

Furthermore, the facts in

the Third Amended Complaint support a claim of excessive force
against said Defendants – in that, while in his home and not
engaging in criminal activity, Plaintiff neither threatened any
officers

nor

resisted

their

authority,

yet

said

Defendants

subjected him to serious physical injury (Docket Entry 27-1 at 89).

See Graham v. Connor, 490 U.S. 386, 396 (1989) (holding

factors relevant to assessment of reasonableness of force to
include “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”); see also Anderson v.
McCaleb, 480 F. App’x 768, 773 (5th Cir. 2012) (noting that
“reasonable use of force for purposes of the Fourth Amendment is
not capable of precise definition or mechanical application,” but
finding that officer “should have known that he could not beat [the
plaintiff] after he stopped resisting arrest” (internal quotation
marks omitted)); Kane v. Hargis, 987 F.2d 1005, 1008 (4th Cir.
1993) (upholding denial of summary judgment where heavier officer
pinned the plaintiff to the ground and pushed her face into
pavement, cracking teeth).

Plaintiff’s excessive force claims

9

against

Defendants

McClaskey,

Childers,

Gonsalez,

and

Rios

therefore may proceed.10
D.

Illegal Search/Seizure

The Third Amended Complaint’s claim for “General Allegations”
under

Section

1983

alleges

that,

“[i]n

committing

the

acts

complained of herein, Defendants acted under color of state law to
deprive Plaintiff of . . . the right to be free from unreasonable
searches and seizures . . . .”

(Docket Entry 27-1 at 12.)11

The

Fourth Amendment provides that “[t]he right of the people to be
secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated, and no
warrants shall issue, but upon probable cause, supported by oath or

10

This fact largely moots Plaintiff’s request for the Court
to “look at” Defendant McClaskey’s “record.” (Docket Entry 36 at
1.)
At any rate, the Court has no obligation to examine
information outside the filings in this case or to guess at how any
such information may or may not affect Plaintiff’s case.
See
generally Boomer v. Lewis, 541 F. App’x 186, 191 (3d Cir. 2013)
(observing that district court “had no obligation to sift through
[materials the plaintiff failed to submit] in deciding [the
plaintiff’s] motions”); Rivera-Gomez v. de Castro, 843 F.2d 631,
635 (1st Cir. 1988) (“Judges are not expected to be mindreaders.”).
11

The Third Amended Complaint abandons the claims in the
Amended Complaint for false arrest, illegal taking of personal
property, and slander. (Compare Docket Entry 4 at 3-4, with Docket
Entry 27-1 at 12-19; see also Docket Entry 15 at 5-10.)
Plaintiff’s Response to Defendants’ Motion to Dismiss also states
that “Plaintiff’s proposed Third Amended Complaint [] has withdraw
[sic] all claims of false arrest, unlaful [sic] search and illegal
taking of property in order to move forward with the claims
surrounding the excessive force.” (Docket Entry 26 at 3 (emphasis
added).) Regardless, for reasons set forth in the discussion that
follows, the Third Amended Complaint fails to state a plausible
claim for illegal search and/or seizure.
10

affirmation, and particularly describing the place to be searched,
and the persons or things to be seized.”
“Generally,

to

satisfy

the

Fourth

U.S. Const. amend. IV.

Amendment’s

reasonableness

requirement, a search or seizure must be ‘accomplished pursuant to
a judicial warrant issued upon probable cause.’”

Temple v.

Johnson, No. 3:09-2655-MBS-JRM, 2010 WL 5136217, at *3 (D.S.C. Nov.
8,

2010)

(unpublished)

Executives’

Ass’n,

489

(quoting
U.S.

602,

Skinner
619

v.

Railway

(1989)),

Labor

recommendation

adopted, 2010 WL 5136215 (D.S.C. Dec. 9, 2010) (unpublished).
The Third Amended Complaint does not allege that Defendants
lacked a warrant or that probable cause failed to support any
warrant.

(See Docket Entry 27-1 at 8-9.)

Furthermore, the Third

Amended Complaint concedes that Defendant officers knocked on
Plaintiff’s door and announced their presence.

(Id. at 8.)

In

addition, the Third Amended Complaint contains no allegations that
Defendant officers in fact searched Plaintiff’s home at all or
seized any of his property.

(See id. at 8-9.)

Under these

circumstances, Plaintiff’s unreasonable search and seizure claim
fails as a matter of law.
E.

Failure to Train/Supervise

Defendants contend that the Third Amended Complaint “makes
only conclusory allegations and fails to articulate any facts which
could plausibly demonstrate more than a ‘sheer possibility’ that
[Defendants Smith, Auten, City of Concord, or Rowan County] . . .

11

failed to properly train [their] Officers regarding excessive
force.”

(Docket Entry 28 at 8.)

“[T]he inadequacy of police

training may serve as the basis for § 1983 liability only where the
failure to train amounts to deliberate indifference to the rights
of persons with whom the police come in contact.”

City of Canton

v. Harris, 489 U.S. 378, 388 (1989). “[D]eliberate indifference in
the context of failure-to-train arises when ‘in light of the duties
assigned to specific officers . . . the need for more or different
training is so obvious, and the inadequacy [is] so likely to result
in the violation of constitutional rights.’”

Goodwin v. Beasley,

No. 1:09CV151, 2011 WL 238640, at *1 (M.D.N.C. Jan. 24, 2011)
(Tilley, S.J.) (unpublished). The Third Amended Complaint fails to
allege any facts regarding the training of Defendant officers or
any inadequacy as to such training.

Accordingly, Plaintiff’s

failure-to-train claim falls short.
Alternatively, “[s]upervisory officials may be liable under
§ 1983 if ‘(1) . . . the supervisor had actual or constructive
knowledge that his subordinate was engaged in conduct that posed “a
pervasive

and

unreasonable

risk”

of

constitutional

injury

to

citizens like the plaintiff; (2) . . . the supervisor’s response to
that

knowledge

was

so

inadequate

as

to

show

“deliberate

indifference to or tacit authorization of the alleged offensive
practices []”; and (3) . . . there was an “affirmative causal link”
between the supervisor’s inaction and the particular constitutional

12

injury suffered by the plaintiff.’” McFadyen v. Duke Univ., 786 F.
Supp. 2d 887, 963 (M.D.N.C. 2011) (Beaty, C.J.) (quoting Shaw v.
Stroud, 13 F.3d 791, 799 (4th Cir. 1994)) (alterations provided by
McFadyen), rev’d in part on other grounds, 703 F.3d 636 (4th Cir.
2012).

Other

recent

authority

has

further

fleshed

out

the

foregoing requirements:
To meet the first requirement, the plaintiff must proffer
evidence that the misconduct has occurred on other
occasions or is “widespread.” [Shaw, 13 F.3d at 799.]
Further, to establish that the supervisor’s response is
deliberately indifferent, the plaintiff must show the
supervisor’s “‘continued inaction in the face of
documented widespread abuses,’” which is a “heavy
burden.” Id. (quoting Slakan v. Porter, 737 F.2d 368,
372-73 (4th Cir. 1984)). Finally, the plaintiff may show
an affirmative causal link between the supervisor’s
response and the plaintiff’s injury when the injury is a
“natural consequence[ ]” of the supervisor’s inaction.
Id. at 800 (quoting Slakan, 737 [F.2d] at 376).
Goodwin, 2011 WL 238640, at *1.

The Third Amended Complaint does

not state any such claim because it fails to allege more than one
incident, much less “continued inaction in the face of documented
widespread abuses,” id.
F.

(See Docket Entry 27-1 at 10, 13-14.)

Excessive Force Against Defendants
City of Concord and Rowan County

To the extent the Third Amended Complaint purports to add a
claim of excessive force against Defendants City of Concord and
Rowan County (see id. at 14-15), such claim also cannot proceed.
In order to sustain a § 1983 claim against a local governmental
entity, “it must be shown that the actions of the officers were
unconstitutional and were taken pursuant to a custom or policy of
13

the entity.”

Giancola v. State of W. Va. Dep’t of Pub. Safety, 830

F.2d 547, 550 (4th Cir. 1987) (citing Monell v. Department of Soc.
Servs., 436 U.S. 658, 690-92 (1978)).12 The Third Amended Complaint
does

not

allege

any

facts

concerning

a

custom

or

policy

of

Defendants City of Concord and/or Rowan County, but instead merely
states conclusorily that they “have adopted policies, procedures,
practices or customes [sic] that allow among other things, the use
of excessive force when other more reasonable and less drastic
methods are available.”

(Docket Entry 27-1 at 15.)

Furthermore,

“[a] single act of the type here alleged cannot suffice, standing
alone, to establish the existence of such a policy.”

Revene v.

Charles Cnty. Com’rs, 882 F.2d 870, 875 (4th Cir. 1989) (citing
City of Oklahoma City v. Tuttle, 471 U.S. 808, 823-24 (1985)).
G.

Failure to Intervene

The Third Amended Complaint adds a claim against Defendants
Seagraves, Love, Bacote, and Davis for failure to intervene, in
support of which it alleges that said Defendants “were present at
the aforementioned incident [of excessive force] and failed to take
reasonable steps to protect [] Plaintiff from the other Defendant
officers [sic] excessive force.”

(Docket Entry 27-1 at 15.)

According to the Third Amended Complaint, “[a]s a direct and
proximate result of the inaction by Defendants Seagraves, Love,

12

This same requirement applies to (and requires dismissal
of) any official capacity claim against Defendants McClaskey,
Childers, Gonsalez, and Rios. See Giancola, 830 F.2d at 550.
14

Bacote, and Davis, Plaintiff suffered both physical and mental
injuries . . . .”

(Id. at 16.)

“As a general matter, a law officer may incur § 1983 liability
only through affirmative misconduct.”

Randall v. Prince George’s

Cnty., Md., 302 F.3d 188, 202 (4th Cir. 2002).

However,

it is well-established that an omission to act, when
coupled with a duty to act, may provide a basis for
liability. . . . The concept of bystander liability is
premised on a law officer’s duty to uphold the law and
protect the public from illegal acts, regardless of who
commits them. Therefore, if a bystanding officer (1) is
confronted with a fellow officer’s illegal act,
(2) possesses the power to prevent it, and (3) chooses
not to act, he may be deemed an accomplice and treated
accordingly.
Id. at 203 (internal citation omitted).

In other words, “an

officer may be liable under § 1983, on a theory of bystander
liability, if he:
individual’s

(1) knows that a fellow officer is violating an

constitutional

rights;

(2)

has

a

reasonable

opportunity to prevent the harm; and (3) chooses not to act.”

Id.

at 204 (internal footnote omitted).
As discussed above, see supra Section III.C., Plaintiff has
articulated a plausible claim of excessive force against Defendants
McClaskey, Childers, Gonzalez, and Rios.

The facts alleged in the

Third Amended Complaint also meet the standard set out in Randall,
namely that Defendants Seagraves, Love, Bacote, and Davis observed
fellow officers violating Plaintiff’s constitutional rights and,
despite the opportunity, chose not to intervene (see Docket Entry
27-1 at 9-10, 15-16). See Stevenson v. City of Seat Pleasant, Md.,
15

__ F.3d __, __, 2014 WL 660919, at *5-6 (4th Cir. 2014) (finding
allegations of bystander liability sufficient where the plaintiffs
alleged

the

defendants

“‘allow[ed]

to

be

committed

.

.

.

unreasonable seizure[s]’”). Plaintiff’s individual capacity § 1983
claim against Defendants Seagraves, Love, Bacote, and Davis for
failure to intervene therefore survives at this stage of the
proceedings.13
H.

State-Law Claims

The Third Amended Complaint includes state-law claims of
negligence (against all Defendants), negligent supervision (against
Defendants Smith, Auten, City of Concord, and Rowan County),
conspiracy (against Defendants McClaskey, Childers, Gonsalez, Rios,
Seagraves,

Love,

Bacote,

and

Davis),

and

assault

(presumably

against Defendants McClaskey, Childers, Gonsalez, and Rios).
id. at 16-19.)

(See

In support of certain aspects of those claims, the

Third Amended Complaint describes Defendant Rowan County as “the
political subdivision of the state of Nort[h] Carolina responsible
for the training and supervision of Defendants Auten, Bacote, and
Davis. [] Defendant Rowan County has established or delegated to
Defendant

Auten

the

responsibility

for

establishing

and

inplementing [sic] policies, practices, procedures and customs used

13

The absence of factual matter showing that any failure to
intervene occurred due to a policy or custom of the entities that
employed Defendants Seagraves, Love, Bacote, and Davis warrants
dismissal of any official capacity claim. See Giancola, 830 F.2d
at 550.
16

by deputy sheriffs employed by Rowan County regarding arrests and
use of force.”

(Id. at 7.)

However, North Carolina law does not vest such responsibility
in a county, but instead allocates authority over sheriff office
personnel to the sheriff. See N.C. Gen. Stat. § 153A-103(1) (“Each
sheriff . . . has the exclusive right to hire, discharge, and
supervise the employees in his office.”). As this Court (per Judge
William L. Osteen, Sr.) observed: “Because [the] County did not
have final policymaking authority . . ., it cannot be held liable
for the conduct of [the sheriff] or [his deputies].” State ex rel.
Wellington v. Antonelli, No. 1:01CV01088, 2002 WL 31875504, at *3
(M.D.N.C. Dec. 20, 2002) (unpublished); accord Wiley v. Buncombe
Cnty., 846 F. Supp. 2d 480, 486-87 (W.D.N.C.) (“Since Buncombe
County by law has no control over the Sheriff’s employees . . .,
Buncombe County cannot [] be liable for the actions of [the
Sheriff] or those of his detention officers . . . .”), aff’d, 474
F. App’x 285 (4th Cir. 2012). Plaintiff’s state-law claims against
Rowan County thus fail as a matter of law.
The Third Amended Complaint similarly targets Defendant City
of Concord as the entity responsible for the actions of its police
officers.

(See Docket Entry 27-1 at 5-6.)

Under North Carolina

law, “[i]t is a fundamental rule that sovereign immunity renders
this state, including counties and municipal corporations therein,
immune from suit absent express consent to be sued or waiver of the

17

right of sovereign immunity.” Data Gen. Corp. v. County of Durham,
143 N.C. App. 97, 100, 545 S.E.2d 243, 246 (2001).

Moreover, “a

failure to allege waiver of sovereign immunity against a government
entity for tort does not state a claim and should be dismissed.”
Collins v. Franklin Cnty., 861 F. Supp. 2d 670, 676 (E.D.N.C. 2012)
(citing Vest v. Easley, 145 N.C. App. 70, 74, 549 S.E.2d 568, 572
(2001), and Gunter v. Anders, 115 N.C. App. 331, 444 S.E.2d 685
(1994)).

In light of the fact that the Third Amended Complaint

does not allege that Defendant City of Concord (or, for that
matter, Defendant Rowan County) waived its sovereign governmental
immunity (see Docket Entry 27-1), Plaintiff’s state-law tort claims
against it (or them) cannot proceed.

Further, to the extent the

Third Amended Complaint raises state-law claims against Defendant
Smith (or any City of Concord police officer) in an official
capacity, such claims similarly fall short.

See Beck v. City of

Durham, 154 N.C. App. 221, 229-30, 573 S.E.2d 183, 190 (2002)
(“[T]he doctrine of governmental immunity also bars actions against
public officials sued in their official capacity.

The chief of

police . . . [is] considered [a] public official[].” (internal
citation and quotation marks omitted)).
Conversely, North Carolina law expressly permits tort actions
against a sheriff via the sheriff’s surety.
76-5.

N.C. Gen. Stat. § 58-

In other words, “[t]he statutory mandate that the sheriff

furnish a bond works to remove the sheriff from the protective

18

embrace of governmental immunity, . . . where the surety is joined
as a party to the action.”

Messick v. Catawba Cnty., N.C., 110

N.C. App. 707, 715, 431 S.E.2d 489, 494 (1993), not followed in
part on other grounds, Harter v. Vernon, 101 F.3d 334, 342-43 (4th
Cir. 1996).

Accordingly, to the extent principles of respondeat

superior would extend liability to Defendant Auten in his official
capacity for negligence of Defendants Bacote and Davis, such a
claim may proceed, upon the addition of Defendant Auten’s surety,
which Plaintiff should have an opportunity to seek.

See Clark v.

Burke Cnty., 117 N.C. App. 85, 89-90, 450 S.E.2d 747, 749 (1994).14
As to the individual capacity state-law claims, “it is settled
[under North Carolina law] that a public official, engaged in the
performance

of

governmental

duties

involving

the

exercise

of

judgment and discretion, may not be held personally liable for mere
negligence in respect thereto.”

Isenhour v. Hutto, 350 N.C. 601,

609, 517 S.E.2d 121, 127 (1999) (internal quotation marks omitted)
(emphasis

added).

Thus,

Plaintiff’s

negligence/negligent

supervision claim(s) against any individual Defendant in his or her
individual capacity fails as a matter of law.
On the other hand, Plaintiff’s individual capacity assault
claim against Defendants McClaskey, Childers, Gonsalez, and Rios

14

Any official capacity negligence claim against any deputy
employed by Sheriff Auten is dismissed as redundant. See Peterson
v. City of Hickory, No. 5:07-CV-0074-RLV, 2010 WL 4791901, at *4-5
(W.D.N.C. Nov. 17, 2010) (unpublished).
19

survives at this juncture because public official immunity does not
extend to intentional torts.

See Wells v. North Carolina Dep’t of

Corr.,

320,

152

N.C.

App.

307,

567

S.E.2d

803,

813

(2002).

However, the Third Amended Complaint does not identify, and the
Court has not found, any North Carolina authority that would
recognize a cause of action for bystander liability other than
possibly common law negligence.15
official

immunity

precludes

As previously discussed, public
individual

capacity

state-law

negligence claims, see Isenhour, 350 N.C. at 609, 517 S.E.2d at
127.

Under these circumstances, any individual capacity state-law

claim premised on bystander liability cannot proceed.
Finally, the Third Amended Complaint asserts a state-law
conspiracy claim against “Defendants present at the aforementioned
[excessive force] incident . . . .”

(Docket Entry 27-1 at 18.)

In

order to make out a claim for common law conspiracy, a plaintiff
must allege: “‘(1) an agreement between two or more individuals;
(2) to do an unlawful act or to do an [sic] lawful act in an
unlawful way; (3) resulting in injury to plaintiff inflicted by one
or more of the conspirators; and (4) pursuant to a common scheme.’”
Piraino Bros., LLC v. Atlantic Fin. Grp., Inc., 211 N.C. App. 343,
350, 712 S.E.2d 328, 333 (2011) (quoting Privette v. University of
N.C. at Chapel Hill, 96 N.C. App. 124, 139, 385 S.E.2d 185, 193

15

“Federal courts applying state laws should not create or
expand a state’s common law or public policy.” Myers v. Sessoms &
Rogers, P.A., 781 F. Supp. 2d 264, 269 (E.D.N.C. 2011).
20

(1989)).

The Third Amended Complaint offers no factual matter to

show the existence of any agreement or common scheme, but instead
alleges in conclusory fashion that Defendants “participated in a
common design through a concert of action to protect fellow
officers, by making false statements or no statements at all
regarding
incident”

the

circumstances

(Docket

Entry

27-1

surrounding
at

18).

the

aforementioned

Plaintiff’s

conspiracy claim therefore fails as a matter of law.

state-law
See, e.g.,

Iqbal, 556 U.S. at 678.
IV.

Plaintiff’s Motion for Subpoenas

Plaintiff requests that the Court issue subpoenas for various
of his medical records relevant to the injuries alleged in the
Third Amended Complaint. (Docket Entry 30.)16 The Court previously
denied an almost identical motion in which Plaintiff asked the
Court to compel production of his medical records (Docket Entry
18), “without prejudice to re-filing if appropriate after the Court
has

resolved

[the]

Scheduling Order.”

Motion

to

Dismiss

and

has

established

(Text Order dated Nov. 7, 2012.)

a

The Court

still has not established a Scheduling Order in this case and
therefore will again deny relief without prejudice.

16

Plaintiff made another filing docketed as a “PRO-SE
MOTION for medical records.”
(Docket Entry 32.)
That filing,
however, merely requests an update on other pending motions. (See
id. at 1.) This Order renders that request moot.
21

V.

Conclusion

No reason exists to warrant denying Plaintiff the opportunity
to file his Third Amended Complaint.

The Court further concludes

that said pleading sets out plausible claims of excessive force,
failure to intervene, negligence, and assault against certain
Defendants, but fails to make out any claim against Defendants
Smith, City of Concord, and Rowan County.
IT IS THEREFORE ORDERED that Plaintiff’s Motion for Leave to
File Third Amended Complaint (Docket Entry 27) is GRANTED.
IT IS FURTHER ORDERED that the Clerk shall docket the proposed
Third Amended Complaint (Docket Entry 27-1) as a Third Amended
Complaint, shall update the case caption accordingly, and shall
send Plaintiff summons forms for Defendants Rios, Bacote, Davis,
and Auten.
IT IS FURTHER ORDERED that Defendants’ Motion to Dismiss
(Docket Entry 14) is GRANTED IN PART and DENIED IN PART in that:
(1)

Plaintiff’s individual capacity claims against Defendants
McClaskey, Childers, Gonsalez, and Rios for excessive force
(under federal law) and assault (under state law) may proceed;

(2)

Plaintiff’s individual capacity claims against Defendants
Seagraves, Love, Bacote, and Davis for failure to intervene
(under federal law) may proceed;

(3)

Plaintiff’s official capacity claim against Defendant Auten
for

negligence

(under

state
22

law)

based

on

a

theory

of

respondeat superior for the inaction of Defendants Bacote and
Davis may proceed, subject to the addition of Defendant
Auten’s surety;
(4)

all other claims against Defendants McClaskey, Childers,
Gonsalez, Rios, Seagraves, Love, Bacote, Davis, and Auten are
dismissed; and

(5)

all claims against Defendants Smith, City of Concord, and
Rowan County are dismissed.
IT IS FURTHER ORDERED that, on or before April 11, 2014,

Plaintiff shall prepare and shall deliver to the Clerk properly
completed summonses for service as to Defendants Rios, Bacote,
Davis, and Auten.17

Failure by Plaintiff to comply with this Order

17

Plaintiff provided completed summons forms for all
proposed new Defendants. (See Docket Entry 33-2.) However, each
summons bears the same address (see id. at 1-10), despite the fact
that the Third Amended Complaint identifies some Defendants,
including Defendants Seagraves and Love, as members of the Concord
Police Department, while identifying Defendant Auten as the Sheriff
of Rowan County and Defendants Bacote and Davis as Deputy Sheriffs
in Rowan County (see Docket Entry 27-1 at 3-7). The Court further
takes judicial notice that the address provided by Plaintiff
belongs
to
the
Concord
Police
Department.
See
http://www.concordnc.gov/departments/police (address located on
left side of screen, last viewed Mar. 11, 2014).
Therefore,
Plaintiff must provide new summonses for Defendants Bacote, Davis,
and Auten. Furthermore, as previously noted, it does not appear
that Defendant Rios works for the Concord Police Department.
(Docket Entry 28 at 2 n.1.) Accordingly, Plaintiff must provide
either a new summons with a proper address for service as to
Defendant Rios or a notice stating the basis for belief that the
Concord Police Department represents a proper service address for
Defendant Rios.
23

will result in dismissal of these Defendants without prejudice
pursuant to Federal Rule of Civil Procedure 41(b).
IT IS FURTHER ORDERED that, on or before March 25, 2014,
counsel for Defendants McClaskey, Childers, and Gonsalez shall file
a Notice stating whether said counsel will represent Defendants
Seagraves and Love and will accept service of process on their
behalf, which the Court then will effect via the CM/ECF system. If
said counsel will represent Defendants Seagraves and Love, the
Notice should also indicate whether said Defendants consent to have
a United States Magistrate Judge conduct any and all further
proceedings in this case pursuant to 28 U.S.C. § 636(c).
IT IS FURTHER ORDERED that, on or before March 25, 2014,
Defendants

McClaskey,

Childers,

and

Gonsalez

shall

answer

or

otherwise respond to the Third Amended Complaint.
IT IS FURTHER ORDERED that Plaintiff’s Motion for Subpoena or
Order (Docket Entry 30) is DENIED WITHOUT PREJUDICE.
IT IS FURTHER ORDERED that Plaintiff’s Letter Motion (Docket
Entry 32) is DENIED AS MOOT.
IT IS FURTHER ORDERED that Plaintiff’s Fourth Motion to Amend
(Docket Entry 33) is DENIED AS MOOT.

24

IT IS FURTHER ORDERED that Plaintiff’s Letter Motion (Docket
Entry 36) is DENIED.

/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
March 11, 2014

25