WHITE v. THE CITY OF GREENSBORO et al
MEMORANDUM OPINION AND ORDER signed by CHIEF JUDGE THOMAS D. SCHROEDER on 03/31/2021, that the pending motions are GRANTED IN PART and DENIED IN PART as set out herein. (Taylor, Abby)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
WILLIAM Z. WHITE,
THE CITY OF GREENSBORO, et al.,
MEMORANDUM OPINION AND ORDER
THOMAS D. SCHROEDER, Chief District Judge.
This lawsuit arises out of the arrest and firing of Plaintiff
William White, a former Greensboro Police Department officer,
after he was investigated for illegal activity stemming from the
theft of several commercial-grade lawn mowers.
After the criminal
charges against White were eventually dropped, he brought this
Before the court are motions for summary judgment by the
following remaining Defendants:
Officers from the Guilford County Sheriff’s Office (“GCSO”)
-- Sheriff B.J. Barnes, James Stalls, and Homer Wilkins -and Travelers Casualty & Surety Company of America as surety
for Sheriff Barnes (“GCSO Defendants”) (Doc. 128);
Officers from the Greensboro Police Department (“GPD”) -James Schwochow, Eric Sigmon, Johnny Raines, Jr., William
Barham, Brian Williamson, Jason Lowe, and Lindsay Albert
(Doc. 136) -- as well as a separate motion by GPD Deputy Chief
James Hinson, Jr. (Doc. 102) (“Greensboro Defendants”);
City of Reidsville and officers from the Reidsville Police
Hampshire, and Shannon Coates (“Reidsville Defendants”) (Doc.
City of Burlington (Doc. 126).
White responded to each motion (Docs. 111, 149-152), and
Defendants filed reply briefs (Docs. 112, 156, 157, 159).
before the court are four motions to seal various documents (Docs.
105, 130, 138, 153) and Defendants’ joint motion to exclude expert
testimony (Doc. 117), which are all fully briefed (Docs. 108, 123,
For the reasons set forth below, the motions will be granted
in part and denied in part.
The facts presented, taken in the light most favorable to
White as the non-moving party, show the following:
Theft of Lawn Mowers and Investigation
White was a police officer for the GPD from April 2009 until
March 6, 2017.
(Doc. 111-1 ¶ 3.) 1
During this time, he earned
additional money by buying and reselling houses and equipment,
including lawn equipment, during his off-duty hours.
(Id. ¶ 4.)
On August 22, 2016, the RPD received a report that several
commercial-grade lawn mowers were stolen from Scott’s Tractor, a
lawn mower dealer in Reidsville, North Carolina.
RPD Lieutenant Shannon Coates responded to the report and assigned
RPD Sergeant Lynwood Hampshire to investigate.
(Id., Doc. 140-2
Hampshire would serve as the lead investigator for
the duration of the investigation.
(Doc. 140-2 at 17:1-3.)
On August 24, White purchased a John Deere zero-turn lawn
mower from an individual in the parking lot of Sedgefield Lawn and
Garden in Jamestown, North Carolina.
(Doc. 151-1 at 16:10-14,
White viewed the mower on several occasions before
he purchased it.
(Doc. 128-6 at 27:20-28:17.)
He purchased the
mower for potential personal use, business use, and resale.
151-1 at 16:15-21.)
The seller was a white male who had multiple
mowers in a trailer that was towed by a pick-up truck.
6 at 17:3-20:17.)
White does not recall the type of truck, where
it was licensed, the seller’s name, or the time of day in which he
purchased the mower.
(Id. at 20:12-17.)
He did receive a pamphlet
All citations to the record are to the ECF docket page except for
testimony, which is cited to the deposition transcript page and line
(Id. at 31:3-7.)
On August 30, Hampshire inputted the serial numbers of the
stolen lawn mowers into the National Criminal Information Center
(“NCIC”), a national database that police agencies use to search
for missing persons or stolen items.
(Doc. 140-2 at 21:14-24.)
He also sent an email and pictures of the suspect’s vehicle that
he acquired from Scott’s Tractor’s video surveillance on the night
of the theft to the Property Investigator’s Group, a group of
information about criminal activity to assist in investigations.
(Id. at 24:2-10; Doc. 140-3 at 1.)
But this group could not
provide any helpful information about the theft.
(Doc. 140-2 at
White’s stepbrother is James (“Matt”) Stalls, a GCSO deputy. 2
(Doc. 128-2 at 14:13.)
They grew up together from approximately
the age of 5 to 18 years old.
(Id. at 14:22-25.)
In addition to
being stepbrothers, they are also brothers-in-law; their wives are
sisters. (Id. at 14:14-15.) The two families spent time together,
including for vacations, birthdays, special occasions, and weekly
(Id. at 17:10-19, 18:17-20:11.)
At a Sunday
Unless otherwise noted, Defendant Matt Stalls is referred to as “Stalls”
and his wife as “Brittany Stalls.” Similarly, Plaintiff William White
is referred to as “White” and his wife as “Christina White.”
dinner the week before Labor Day 2016, 3 White’s wife, Christina,
asked her sister, Brittany Stalls, to take care of her and her
husband’s dogs over Labor Day weekend while they were on vacation.
(Id. at 21:3-7; Doc. 128-4 at 18:18-22.)
Brittany Stalls had done
so previously (Docs. 128-4 at 15:22-16:2; 128-5 at 78:10-14), and
both Stalls contend that on occasion Matt Stalls would go by
himself to care for the dogs without any complaint or objection
from the Whites (Docs. 128-2 at 22:4-23:4; 128-4 at 17:16-18:22).
According to Christina White, however, she had previously told her
sister that she did not want Stalls to feed the dogs because he
played too roughly with them, and to her knowledge Stalls had never
been over to her house to care for them.
(Doc. 128-5 at 82:13-
On September 3, Matt and Brittany Stalls went to the Whites’
house to care for the dogs.
(Doc. 128-2 at 23:21-24:18.)
entered the garage where the dog food was kept, Stalls noticed a
John Deere mower in the garage with a sheet over the seat.
at 23:5-11, 25:25-26:5.)
He removed the sheet, sat on the seat,
and took a photograph of the mower’s vehicle identification number
(“VIN”), also known as the serial number.
128-3 at 5.)
(Id. at 26:6-27:8; Doc.
Stalls states he did this because he was interested
The parties do not provide the exact dates.
Day 2016 would have been August 28.
The Sunday before Labor
in purchasing a mower for himself.
(Doc. 128-2 at 26:11-17.)
Later that day, Stalls texted White asking about the mower.
(Id. at 28:17-24; Doc. 128-3 at 6-8.)
White told Stalls the mower
was not his and he was debating if he wanted to keep it. 4
days later, Stalls checked the mower’s model number against a
(Doc. 128-3 ¶ 7.)
Stalls says he did this
because he started to suspect the mower might be stolen because
White told him he got it from another police officer, the mower
looked brand new, and the asking price was half the mower’s value.
(Doc. 128-2 at 29:4-23.)
The search reflected that the mower had
been reported stolen by the RPD.
(Id. at 30:3-6.)
Because it is relevant to the remaining claims, the court sets out
their text message thread in full (Doc. 128-3 at 6-8) (errors in the
Stalls: Went by your house earlier to let the dogs out…where
did u steal that mower from?
White: haha nice isn’t it
Stalls: Do I need to run the vin number?
White: already did but it’s being sold
Stalls: Why are u selling it?
White: way to big, and it is a commercial, I just need a
Stalls: What’s ur asking price
White: it’s not mine it’s another officers, it’s an $11,000
mower he wants $5900 I think but not sure I will have to ask
again, I am just trying to see if I want it
Stalls: It looks brand new…u sure there ain’t an “insurance”
claim on it?
White: it is, but no there is not, I am still debating I may
keep but I doubt I can use one that big
Stalls: It will take longer for u to get it out of the garage
than to cut the grass. I would love to have one that big but
I can’t afford it. Will he take payments? Lol
White: I doubt, think the neighbors want it though, he was
drooling over it
called his stepmother, Anita Holder -- who is White’s mother and
was herself a former GPD police officer, including interim chief
of police -- for guidance.
(Id. at 30:8-9; Doc. 111-2 ¶¶ 7-10.)
Holder told Stalls to confront White about the mower, which Stalls
did via text message and a phone conversation on September 19.
(Docs. 128-2 at 30:11-31:5; 128-3 ¶¶ 7-9.)
Stalls also told at
least two other GCSO officers that White was in possession of a
(Doc. 128-2 at 31:10-24.)
By this point White had decided to sell the mower.
September 15, he posted an ad on Craigslist.
(Doc. 151-1 at 45:20-
In part, the ad read: “John Deere 930 commercial zero turn,
like new 18 hours . . . garage kept. mowed with 1 season, divorcing
and need gone NOW.”
(Doc. 140-6 at 1.)
On September 19 -- the
same day Stalls texted him asking to talk about the mower -- White
sold the mower to David and Dennie Terry (“the Terrys”) who picked
up the mower that night at White’s house.
(Doc. 151-1 at 50:13-
White gave the Terrys a bill of sale that he signed “Bill
(Doc. 140-6 at 2.)
The next day, September 20, the Terrys developed some concerns
with the mower.
First, the mower’s hour reading was in fact 1.8
(Doc. 128-8 ¶ 8.)
This was different from White’s
Craigslist ad that represented the mower had been used for 18 hours
or “one season.”
Second, the Terrys were unable to locate
the serial number for the mower.
(Doc. 140-10 at 4-6.)
spot where they expected the serial number to be, David Terry
observed “sticky residue (as if a sticker had been removed).
Etched in the glue residue was the word ‘void.’”
(Doc. 128-8 ¶ 9.)
The Terrys became concerned the mower was stolen.
They texted White to express their concerns.
(Id. ¶ 11.)
(Id.; Doc. 140-10.)
In response, White texted: “1TC930MCHGT042903., this is the number
I was given on bill of sale, not sure if it helps but I never
bought a warranty so not sure.”
(Doc. 140-10 at 6.)
requested a picture of the bill of sale that White said he had
received from the seller to confirm the serial number, but they
never received it.
(Id. at 8; Doc. 128-8 ¶ 6.)
Still concerned, the Terrys contacted a John Deere dealer in
Roxboro, North Carolina, and provided the serial number White had
(Doc. 128-8 ¶ 15.)
The dealer told the Terrys that
that particular serial number belonged to a mower that was sold in
New York the day before.
The same dealer also told the
Terrys that John Deere also attaches the serial number beneath the
(Id. ¶ 16.)
David Terry took a picture of the serial
number for the mower he had purchased from White.
actual VIN was 1TC930MCPGT043684.
(Id.; Doc. 140-7.)
provided this VIN to the John Deere dealer in Roxboro who told
them there was no record of a mower with that serial number having
(Doc. 128-8 ¶ 17.)
At this point the Terrys contacted White to request a refund.
(Id. ¶ 18.)
White responded that he had already spent the Terrys’
money to pay other debts.
(Id.; Doc. 140-10 at 9.)
then contacted a friend at the Durham County Sheriff’s Office
(“DCSO”), Deputy Peter Lilje.
(Doc. 128-8 ¶ 19.)
Lilje ran the
mower’s VIN on a police database and it returned a hit linking the
Terrys’ mower to one of the mowers stolen from Scott’s Tractor. 5
(Id.; Doc. 140-5 at 2.)
Lilje met with the Terrys that evening
and had the mower towed to a secure location.
(Doc. 128-8 ¶ 19.)
On September 20 and again several days later, the Terrys texted
White to inform him the mower was reported stolen and that they
had contacted the police, and they encouraged White to do the same.
(Id. ¶¶ 20-21.)
On September 26, the Terrys contacted the GCSO by phone
because White’s house -- where they bought the mower -- was located
in Guilford County, North Carolina.
(Id. ¶ 22.)
The Terrys spoke
to GCSO Detective Homer Wilkins who recommended they contact the
RPD because Reidsville was where the mowers were stolen.
It is not fully clear which VIN Deputy Lilje ran. His report lists
the VIN as 1TC915BAAET020866.
(Doc. 140-5 at 1.)
corresponds to a VIN for another mower that was reported stolen from
Scott’s Tractor, although it is not the VIN on the Terrys’ mower. (See
Docs. 140-1; 140-7.) White cites this difference as an example of a
discrepancy that “negate[s] probable cause” for the search warrant for
White’s house. (Doc. 151 at 8-9.) Hampshire says he did not find the
discrepancy curious and that he assumed Lilje copied it in error because
the VINs for all the stolen mowers were listed together on the police
(Doc. 140-2 at 60:3-11, 64:19-22.)
The court need not
determine what happened.
For reasons given infra, even with this
discrepancy there was probable cause for the search warrant.
Doc. 128-7 ¶¶ 3, 10.)
The Terrys did so and eventually spoke to
Hampshire, who was investigating the Scott’s Tractor theft, on
(Doc. 140-3 at 1.)
On November 2, Hampshire went to the GCSO office to meet
Wilkins so the two of them could conduct a “knock and talk” at
(Id. at 2.)
Wilkins had been directed by his
supervisor to accompany Hampshire.
(Doc. 128-7 ¶ 12.)
arriving at White’s house, Hampshire and Wilkins knocked on the
front door, but no one answered.
(Doc. 140-2 at 79:14-18.)
Hampshire noticed cobwebs on the front door and thought the door
might not be used, so he walked through an open garage door to
another door to the house, knocked on that door, and again no one
(Id. at 79:18-80:14.)
Hampshire left his business card
on the door inside the garage and left.
(Id. at 80:14.)
this time, Wilkins stayed on the driveway and did not enter the
(Id. at 134:18-22.)
According to White and his wife,
Christina White, the Whites do not ordinarily use the garage door
to enter or exit their home.
(Docs. 151-1 at 110:23-24; 151-2 at
Prior to going to White’s house for the knock and talk,
Hampshire learned that White was a GPD police officer.
140-2 at 18:3-9; 140-9 at 27:16-28:22.)
He later spoke with
Coates, his supervisor, who advised him to contact the North
Professional Standards Division.
(Doc. 140-2 at 18:3-9.)
was contacted because it is standard practice for the SBI to be
involved when a police officer is the suspect in an investigation.
Destinie Denny, who had worked with the RPD in the past.
On November 3, Hampshire and Wilkins met with the Terrys at
GCSO’s District 3 office in Jamestown.
(Doc. 128-8 ¶ 24.)
was again present, at Hampshire’s request.
(Doc. 128-7 ¶ 21.)
During this meeting the Terrys provided Hampshire with a copy of
their text messages with White and the bill of sale White had given
them, as well as the picture of the VIN David Terry took from the
(Doc. 140-3 at 1-2.)
The Terrys also told Hampshire about
the difference in hours the mower had actually been used versus
what was listed on White’s Craigslist ad (1.8 hours versus 18
(Docs. 140-2 at 28:10-16; 140-6 at 1.)
On November 9, Hampshire and Denny interviewed White at the
(Doc. 140-2 at 36:14-21.)
According to Hampshire,
White told them that he purchased the mower in the parking lot of
Sedgefield Lawn and Garden from a man with a black pick-up truck
and a black trailer that had three or four John Deere mowers
(Id. at 38:1-10.)
White said the seller was from a John
Deere “up North” that was closing, and they arranged for the mower
to be delivered to White’s house.
(Id. at 38:14-23.)
to Hampshire, White offered to look through his phone records to
help identify the seller but never did.
(Id. at 39:11-17, 139:7-
The next day, November 10, Hampshire spoke to the manager of
Sedgefield Lawn and Garden.
(Doc. 140-3 at 2.)
The manager told
Hampshire that no one had been in their lot selling John Deere
Hampshire concluded that the parking lot would not be a
suitable place to sell mowers because it would have impeded traffic
and been noticed by store staff.
(Id. at 3.)
At some point the mower was returned to Scott’s Tractor.
February 2017, Hampshire learned that Scott’s Tractor had taken
possession of the mower, and he went to take a picture of the
underside of the mower.
(Docs. 140-2 at 51:24-53:1; 140-3 at 3-
The mower was then re-sold, although the owners of Scott’s
Hampshire reported this development and discussed his concerns
about possible insurance fraud with Coates, Denny, a local district
attorney, and an investigator with the North Carolina Department
(Docs. 140-2 at 46:1-47:16; 140-3 at 4.)
Theft in Burlington
On January 16, 2017, Detective Cody Westmoreland of the
Burlington Police Department (“BPD”) was assigned to investigate
the theft of three John Deere Gators from Quality Equipment in
Burlington, North Carolina.
(Docs. 127-1; 127-2 at 22:11-23:17.)
That investigation led to a suspect, Jeffrey Strickland, Jr.
(Docs. 127-2 at 24:23-25:5; 127-13 ¶¶ 9-11.)
that Strickland was a sworn officer with High Point Parks and
Recreation and was previously a GPD police officer.
Accordingly, because the investigation centered on another
law enforcement officer and because Westmoreland would have to
travel outside his jurisdiction to investigate the thefts, he
requested the assistance of the SBI.
(Id. ¶ 13.)
The SBI agent
assigned to Westmoreland’s case informed Westmoreland that SBI
investigation into the theft of mowers from Scott’s Tractor.
¶¶ 14-15.) Westmoreland met with Denny and informed him that White
was a suspect in the RPD case.
(Id. ¶ 15.)
Denny believed that
the Quality Equipment and Scott’s Tractor thefts may have been
related because they occurred during a similar time frame, had
similar methods of operation, and both involved police officers.
(Docs. 127-2 at 30:25-31:4; 127-3 at 25:3-26:7.)
The SBI eventually obtained Strickland and White’s phone
records, which showed numerous calls with each other during the
relevant time period. 6
(Docs. 127-5 ¶ 3; 127-6 at 41:19-23.)
In addition, Strickland delivered the John Deere mower that White sold
to the Terrys to White’s house in August 2016. (Docs. 140-2 at 139:25140:14; 140-8 at 174:3-175:15; 128-5 at 88:25-89:5.) Christina White
was at home and observed Strickland deliver the mower. (Doc. 128-5 at
Ultimately, the SBI decided to execute search and arrest warrants
for Strickland and White at the same time. 7
(Doc. 127-5 ¶ 3.)
Search of White’s Residence
On March 5, 2017, Hampshire applied for and obtained a warrant
from a magistrate to search two of White’s residences.
establishing probable cause:
Nine riding lawn mowers were stolen from Scott’s Tractor on
August 21, 2016.
On September 19, White sold one of the mowers that had been
reported stolen from Scott’s Tractor to the Terrys, who picked
up the mower from White’s house.
When the Terrys inspected the lawn mower the next day, they
noted the VIN was missing and the mower displayed 2.0 hours,
which was fewer than the 18 hours White advertised.
87:16-89:5.) She knew it was Strickland because he had worked with White
and they were friends. (Id. at 89:6-8.) However, it does not appear
that any law enforcement officer was aware of this fact during the
investigation and prior to executing the search warrant on White’s house.
As Hampshire and Denny both testify, White did not tell them during their
November 9, 2016 interview that Strickland delivered the mower, even
though it would have been relevant for their investigation. (Docs. 1402 at 139:15-140:14; 140-8 at 173:25-174:7.) Accordingly, the court does
not consider this fact in its analysis.
Strickland ultimately pleaded guilty in July 2020 to felony obstruction
of justice, two counts of felony possession of stolen goods, and two
counts of felony obtaining property by false pretenses stemming from the
theft of the John Deere Gators from Quality Equipment. (Doc. 127-15.)
The VIN White provided the Terrys was connected to a mower
sold in New York “just days before” this sale.
The Terrys discovered the actual VIN for the mower which was
connected to one stolen from Scott’s Tractor.
White did not provide the Terrys a bill of sale from when he
originally purchased the mower.
White did not report the mower as stolen even after the Terrys
reported it to him as stolen.
Hampshire went to Sedgefield Lawn and Garden and verified
that the parking lot would not have fit a truck as described
by White, and that the manager would not have allowed any
(Id. at 7-9.) Hampshire also stated in the application that during
his interview with Denny, White said he “was here to talk about
the mower he stole” which he recanted “to say sold.”
Also on March 5, the investigating agencies informed GPD Chief
Wayne Scott that they had probable cause to arrest White for felony
possession of stolen property and felony obtaining property by
false pretenses, that the agencies were in the process of obtaining
search warrants for White’s residences, and that they planned to
arrest White on March 6. 8
(Doc. 103-1 ¶ 9.)
agencies had updated Scott during their investigation, and GPD’s
Chief Scott’s declaration does not identify which agencies informed
him that probable cause existed to arrest White.
Professional Standards Division was also investigating White’s
possible involvement in the mower thefts.
(Id. ¶ 6.)
that the agencies had probable cause to arrest White and decided
to terminate White’s employment with GPD.
(Id. ¶¶ 10-11.)
On the morning of March 6, Hampshire conducted a briefing at
SBI’s Greensboro office prior to executing the search warrants.
Present were members from the SBI, BPD, GCSO, and the Randolph
County Sheriff’s Office.
(Doc. 140-13 at 1.)
prepared an operations plan, which was reviewed by his supervisor
Coates, outlining the execution of the search warrants.
140-2 at 89:19-23; 139.)
(Doc. 103-1 ¶ 18.)
White was then arrested by Agent
Denny from the SBI and Lieutenant Coates from the RPD, and Coates
(Id. ¶ 19; Doc. 103-4 ¶¶ 4-5.)
During the arrest,
two GPD officers, including Deputy Chief James Hinson, placed their
hands on White’s arms to assist in the arrest.
(Doc. 103-1 ¶ 20.)
At about 8:00 a.m., after White was arrested, the RPD and SBI
executed the search warrant at White’s primary residence. 9 Present
at the start of the search were two agents from the RPD, including
A second warrant was executed simultaneously at another house owned by
White. However, this house was for sale and was essentially vacant.
(Doc. 140-13 at 5.)
No claims have been brought by White as to the
search of this house.
Hampshire as the officer in charge, and two agents from the SBI.
(Doc. 139 at 7.)
Detective Victoria Underwood of the BPD was
present as a BPD liaison officer because the BPD was conducting a
simultaneous arrest of Strickland as a result of its investigation
into the theft at Quality Equipment.
(Doc. 127-14 ¶¶ 5-6.)
Amanda Fleming of the GCSO was present as a GCSO liaison officer
since White’s house was in Guilford County.
2 at 136:12-137:21.)
(Docs. 139 at 7; 140-
Other officers arrived during the search,
including RPD Chief Robert Hassell.
(Doc. 140-2 at 91:25-92:4.)
When the officers arrived at White’s house, the only people
present were Christina White, the Whites’ daughter, and Anita
(Doc. 137-7 at 7:23-8:10.)
leave with the Whites’ daughter.
Hampshire allowed Holder to
(Id.; Doc. 140-2 at 95:22-96:9.)
The search officers proceeded to search the residence.
discovered a John Deere Gator and trailer in White’s garage.
Gator was reported as stolen from Wake County, North Carolina, in
(Doc. 140-13 at 2, 11.)
The officers were unable
to find a VIN for the trailer, which appeared to have been
Both the Gator and trailer were seized and
towed to the RPD impound lot. 10
Hampshire’s operations plan directed that, upon discovery of
Additional items seized include four cell phones, $60,000 in cash
wrapped in foil under the sink in the master bathroom, a hard drive and
two thumb drives, and several firearms.
This is in
addition to property identified as belonging to the GPD, discussed infra.
Lieutenant Coates who would in turn notify the GPD to come to
White’s house to retrieve the property.
This is what happened.
(Docs. 139 at 11; 140-2
The investigating officers
discovered GPD equipment at White’s house, Hampshire notified
Coates, and Coates notified the GPD to collect the property.
(Docs. 139-1 at 3; 140-2 at 87:13-18.)
At some point, two GPD
officers reviewed Hampshire’s search warrant and concluded it
would cover their equipment, although it is unclear when this
(Doc. 140-2 at 124:2-14.)
At about 10:00 a.m., GPD Lieutenant Johnny Raines was directed
to go to White’s house to pick up GPD-issued equipment.
137-10 at 15.)
Raines was a member of Resource Management, the
GPD division that keeps track of GPD equipment.
(Doc. 137-11 at
According to several GPD Defendants, it is standard
practice for GPD to attempt to collect issued equipment as soon as
possible after an officer leaves the department.
15; 137-12 at 3.)
(Docs. 137-10 at
Raines directed Sergeant William Barham to
accompany him to White’s house.
When they arrived, Raines
looked into an open garage and noticed what appeared to be GPD
equipment in the garage.
(Doc. 137-10 at 15.)
Officers from the
SBI and RPD escorted Raines and Barham to the master bedroom where
they both observed additional GPD equipment.
(Id.; Doc. 137-12 at
At this point, Raines went to the living room where Christina
White was sitting and asked her if they could collect GPD property.
(Doc. 137-10 at 16.)
While Raines says Christina White “stated
that we could collect and remove the property,” (id.), Christina
White says she never gave Raines permission to look for GPD
equipment and that he was already searching for the equipment
before he spoke to her (Doc. 152-2 at 17:21-18:3).
Shortly thereafter, GPD Sergeant Brian Williamson arrived at
(Docs. 137-10 at 16; 137-14 at 4.)
the team leader for GPD’s Special Response Team (“SRT”), of which
White was a member prior to his termination.
(Doc. 137-14 at 3.)
equipment, Williamson reported to White’s house to identify GPD’s
(Id. at 4.)
Williamson subsequently ordered GPD
Detective Jason Lowe, who was the sniper team lead on GPD’s SRT,
to come to White’s house to identify any SRT sniper equipment White
may have had.
(Doc. 137-15 at 4.)
During the search for GPD equipment, Williamson observed two
Rubbermaid bins in the master bedroom that were “full to the rim”
with ammunition that was the same type GPD SRT uses.
14 at 4.)
He reported this to Raines.
that White appeared to have more GPD equipment than an officer
would typically be issued, including about a dozen ballistic vests
in the master bedroom when an officer is usually only issued one
or two such vests.
(Doc. 137-10 at 16.)
Williamson and Barham
also noticed that one of these vests had the name of Raines’s wife
-- who was a former GPD officer -- inscribed on the inside of the
(Docs. 137-12 at 4; 137-14 at 4.)
that point, the situation changed.
According to Barham, “At
There was credible evidence
that [White] had GPD property that he should not possess.”
137-12 at 4.)
Raines informed the SBI and RPD and contacted his command
staff to notify them that he believed White may have stolen GPD
property. (Doc. 137-10 at 17.) In response, GPD’s Property Crimes
division ordered Sergeant Eric Sigmon to find the next available
GPD detective and report to White’s house.
(Doc. 137-18 at 3.)
Sigmon ordered Detective James Schwochow to accompany him.
Doc. 137-20 ¶ 5.) Sigmon was Schwochow’s direct supervisor. (Doc.
137-20 ¶ 5.)
Upon their arrival, there were several piles of
Schwochow to make an inventory of the property.
(Id. ¶ 7.)
some point GPD Detective Lindsay Albert was also ordered to go to
White’s house, where she helped organize and sort GPD property.
(Doc. 137-21 at 3.)
During this time, she observed a bicycle in
White’s garage that looked like a customized model the GPD used.
(Id. at 4.)
White states he was in lawful possession of all property found
at his house, either because he purchased it for personal use or
because he had permission to store it at his house.
at 166:17-22; see generally id. at 166:23-189:25.)
All told, there were at least seven GPD officers present at
White’s house on March 6: Raines, Barham, Williamson, Lowe, Sigmon,
Barham transported the seized property that the Greensboro
residence to two GPD locations: the SRT gear and ammunition went
to an SRT ammunition cage, and the remainder of the equipment went
to the GPD logistics armory.
(Docs. 137-10 at 4-5.; 137-20 ¶ 10.)
The search concluded in the evening of March 6.
After the Search
After the March 6 search, the SBI began investigating White
for possession of excessive GPD property.
(Doc. 137-4 at 162:21-
SBI Agent Denny was the charging officer for this aspect
of the investigation. (Id. at 163:10-12.) GPD Chief Scott decided
that GPD would not pursue any criminal charges against White for
possible theft of GPD property, but that GPD would cooperate in
any investigation the SBI decided to pursue. (Doc. 137-11 at 83:784:25.)
To that end, GPD Sergeant Sigmon directed Schwochow to
compile a list of items GPD collected from White’s residence,
including what had been issued to White and what had not been
issued as well as the value of that property.
(Docs. 137-19 at
43:3-14; 137-20 ¶ 12.)
On March 8, Schwochow began compiling this
(Doc. 137-20 ¶ 13.)
To do this, he spoke to multiple
individuals at GPD who had knowledge of or documentation about
what equipment had and had not been issued to White and the value
of the GPD property.
speak to White.
(Id. ¶ 14.)
In so doing, Schwochow did not
(Doc. 152-3 at 58:18-20.)
At the end of his investigation, Schwochow gave his report - which included spreadsheets documenting the GPD property and a
written summary -- to SBI Agent Denny.
(Docs. 137-20 ¶ 16; 137-
Schwochow did not make an express determination as to the
investigating, although he believed probable cause did exist.
(Doc. 137-20 ¶¶ 18-19.)
However, in his report Schwochow wrote,
“I determined that the ammunition, SRT gear and bicycle fell under
the category of larceny by employee . . . [and] the other equipment
and items . . .
fell under the category of embezzlement.”
137-24 at 59-60.)
Based on Schwochow’s report, Denny decided to pursue a felony
larceny charge against White for theft of GPD property.
137-4 at 163:24-164:1.)
She did not speak to other GPD officers
as part of her investigation.
(Doc. 154-1 at 103:14-104:23.)
Rather, she spoke to the Guilford County district attorney, who
decided to bring the felony larceny charge against White.
137-4 at 166:12-19.) On March 23, Denny discussed possible charges
with a Guilford County magistrate, who found probable cause to
arrest White for felony larceny.
(Id. at 169:2-7; Doc. 137-27.)
An arrest warrant was issued, and White was arrested that day.
Denny did not speak to Schwochow about which
charges, if any, to bring.
(Doc. 137-4 at 169:7-9.)
did not have any further involvement in the investigation after he
gave his report to Denny.
(Doc. 137-20 ¶ 20.)
charges were resolved in White’s favor.
(Doc. 81 ¶ 98.)
In addition to the state larceny charge, White was charged in
a two-count indictment with federal firearms violations based on
firearms and silencers seized during the search of his house.
United States v. White, No. 1:17-CR-94-1, 2017 WL 2633521 (M.D.N.C.
June 19, 2017).
On June 19, 2017, U.S. District Judge Loretta C.
Biggs of this court granted White’s motion to suppress evidence
obtained from the search of his house on March 6.
part, Judge Biggs’s opinion noted that in his search warrant
application, Hampshire had attributed misleading statements to
White from their November 9, 2016 interview. 11
See id. at *6
Specifically, Judge Biggs found that Hampshire had reported in the
warrant application: “During the interview William White made the comment
‘he was here to talk about the mower he stole[.]’ He immediately recanted
the stole to say sold.” Judge Biggs found that such representation failed
to acknowledge that White was responding to a question posed to
him. White, 2017 WL 2633521, at *6. However, White’s reliance on Judge
Biggs’s opinion is misplaced for at least two reasons.
finding that the statement was “material” does not address the legal
requirement of whether it was “necessary” to the finding of probable
cause (which it was not, as there was sufficient other evidence to
Hampshire characterizing his interview with White was intended to
mislead the judge into believing White had admitted to stealing a
tractor and further had recanted that admission.”).
(Doc. 81 ¶ 98.)
White initiated this action in November 2018 (Doc. 1) and
filed a first amended complaint in December 2018 (Doc. 21).
January 2019, Defendants GCSO, Greensboro, and Burlington moved to
dismiss for failure to state a claim upon which relief could be
(Docs. 36; 43; 45; 47.)
White responded but also moved
for leave to file a second amended complaint (Doc. 54), which the
Defendants opposed (Docs. 68-71).
Following a hearing on these
motions in September 2019, the court granted White’s motion for
leave to amend.
Subsequently, the court granted in
part and denied in part Defendants’ motions to dismiss.
support probable cause for the charges related to the mowers).
e.g., United States v. Akinkoye, 185 F.3d 192, 199 (4th Cir. 1999)
(finding that a Franks hearing was not required because probable cause
existed apart from the alleged inconsistencies in the warrant affidavit).
Second, Judge Biggs declined to hold a hearing under Franks v. Delaware,
438 U.S. 154 (1978), because, even assuming the warrant was valid, she
still granted the motion to suppress after rejecting the Government’s
contention that the firearms, which were not listed in the warrant
application, were found in plain view. White, 2017 WL 2633521, at *68.
Defendant Reidsville did not file a dispositive motion but instead
filed an Answer. (Doc. 39.)
v. City of Greensboro, 408 F. Supp. 3d 677 (M.D.N.C. 2019).
The current motions followed and are now
fully briefed and ready for decision.
Motion to Exclude Expert Testimony
All remaining Defendants have jointly moved to exclude expert
testimony or evidence from Anita Holder, White’s sole proffered
expert witness, on the grounds that White failed to serve an expert
report for Holder and she is an advocate for her son.
White opposes this motion.
Federal Rule of Civil Procedure 26(a)(2) governs pretrial
disclosure of expert testimony.
Rule 26(a)(2) requires a party to
disclose the identity of any expert witnesses and, if the expert
is retained, specially employed to provide expert testimony, or an
employee who regularly gives expert testimony, to provide a written
report identifying the expert’s opinions and the basis for them.
See Fed. R. Civ. Pro. 26(a)(2)(A) and (B). 13
All other expert
witnesses are subject to a limited disclosure and need not file a
See id. 26(a)(2)(C).
Here, the parties filed a joint Rule 26(f) report in December
In relevant part, subsection (a)(2)(B) provides: “Unless otherwise
stipulated or ordered by the court, this disclosure [of expert witnesses]
must be accompanied by a written report--prepared and signed by the
witness--if the witness is one retained or specially employed to provide
expert testimony in the case or one whose duties as the party’s employee
regularly involve giving expert testimony.”
2019, which provided that all expert witness disclosures and
reports were due by July 31, 2020, and that discovery would close
on September 30, 2020.
On July 30, 2020, White filed
“Plaintiff’s Expert Disclosure,” which identified Holder as an
The disclosure stated that Holder
“will offer testimony about Defendants [sic] actions and the
actions of their employers regarding their failure to properly
follow the usual and customary practices of the industry and to
follow their own policies and procedures” and would be “based upon
her education and experience in the industry, her interactions
with the Defendants and their relevant employers, as well as her
review of documents produced in discovery and produce[d] pursuant
to public records requests.”
Holder states she did not
receive compensation from White for her services as an expert
(Doc. 123-1 ¶ 14.)
Discovery closed September 30, 2020,
and Defendants’ motion to exclude followed on October 2.
There is no dispute that White did not file an expert report
The issue is whether he was required to and, if so,
what should be done about it.
Rule 26(a)(2) requires a report when, as relevant here, the
expert is “retained or specially employed” to provide expert
In construing this provision, courts distinguish
The report requirement also applies if the expert witness is “one
specifically for the litigation, with only the latter having to
provide a written report.
See, e.g., Downey v. Bob’s Disc.
Furniture Holdings, Inc., 633 F.3d 1, 6 (1st Cir. 2011) (“[A] court
must acknowledge the difference between a percipient witness who
happens to be an expert and an expert who without prior knowledge
of the facts giving rise to litigation is recruited to provide
expert opinion testimony.”); Stuart v. Loomis, No. 1:11-CV-804,
2014 WL 204214, at *2 (M.D.N.C. Jan. 17, 2014) (the expert report
requirement “distinguishes between retained and specially employed
underlying facts of a case”); Indem. Ins. Co. of N. Am. v. Am.
Eurocopter LLC, 227 F.R.D. 421, 424 (M.D.N.C. 2005) (“If the
witness has not provided a Rule 26(a)(2)(B) report, the Court will
only allow an individual to give an expert opinion . . . if that
individual has a connection with the case by being a participant
in the events.”).
The proverbial example of this distinction is the treating
physician, who is often testifying based on both 1) her role as a
first-hand participant in the diagnosis and treatment of the
whose duties as the party’s employee regularly involve giving expert
testimony.” Fed. R. Civ. Pro. 26(a)(2)(B). There is no question that
Holder is not White’s employee, so this provision does not apply.
patient and 2) her specialized knowledge and training.
generally hold that treating physicians must be disclosed as expert
witnesses, but they are not required to submit a Rule 26(a)(2)(B)
report if their opinions are formed as a part of the patient’s
treatment; however, they are required to file a report if their
opinions are formed outside the scope of the patient’s treatment.
See, e.g., Drennen v. United States, 375 F. App’x 299, 306 (4th
Cir. 2010) (per curiam); 15 Fielden v. CSX Transp., Inc., 482 F.3d
866, 871 (6th Cir. 2007); Goodman v. Staples, 644 F.3d 817, 819
(9th Cir. 2011) (noting that while “generally speaking” treating
physicians are excused from the report requirement, they are
required to provide a report when they are “asked to opine on
matters outside the scope of the treatment they rendered”). 16
Here, Holder is plainly a retained expert witness subject to
Rule 26(a)’s written report requirement.
The basis for Holder’s
opinion is “her education and experience in the industry, her
interactions with the Defendants and their relevant employers, as
Unpublished opinions of the Fourth Circuit are not precedential but
can be cited for their persuasive, but not controlling, authority. See
Collins v. Pond Creek Mining Co., 468 F.3d 213, 219 (4th Cir. 2006).
This specific example finds support in the Advisory Committee Notes
to the Federal Rules of Civil Procedure. See Fed. R. Civ. P. 26 advisory
committee’s note to 1993 Amendment (“A treating physician, for example,
can be deposed or called to testify at trial without any requirement for
a written report.”); Fed. R. Civ. P. 26 advisory committee’s note to
2010 Amendment (listing “physicians or other health care professionals”
as expert witnesses who generally are not required to provide a report).
produce[d] pursuant to public records requests.”
In other words, her expert opinion is based on her experience as
a police officer with GPD and her knowledge of police policies and
procedures, not from her being “directly involved in the underlying
facts” of the case.
Cf. Stuart, 2014 WL 204214, at *2.
physician and the examples White cites in his opposition brief,
who in each instance had personal involvement in the underlying
facts of each case.
See Goodman, 644 F.3d at 819 (noting that
treating physicians are “not specially hired to provide expert
testimony; rather, they are hired to treat the patient” and so
testimony stemming from their direct, personal involvement in the
requirement); Downey, 633 F.3d at 6 (exterminator who personally
inspected plaintiff’s home was a non-retained expert because his
testimony “arises not from his enlistment as an expert but, rather,
from his ground-level involvement in the events giving rise to the
White responds that Holder “contemporaneously observ[ed] and
(Doc. 123 at 5.)
This may be so, but the “events
giving rise to the ligation” are the actual investigation, firing,
and arrest of White and the search of his house, not his subsequent
“ground-level involvement” in these events.
Indeed, by her own
admission she came in afterwards, starting in 2017 by “actively
assisting [White’s] attorneys by reviewing discovery documents.” 17
(Doc. 123-1 ¶ 11.)
Again, her opinions are based on her prior
experience and reviewing documents after the operative events.
such, even though she is not being compensated by White, she is
still “retained” by him for Rule 26(a) purposes and was required
to file a written report.
This she did not do.
Cf. Sauers v.
Winston-Salem/Forsyth Cnty. Bd. of Educ., No. 1:15CV427, 2018 WL
1627160, at *4 (M.D.N.C. Mar. 30, 2018) (“Even if [the treating
doctor] was not compensated . . .
because she considered material
obtained outside of her treatment of [the patient] in offering her
Having determined that Holder is a retained expert witness
for whom a report should have been provided, the court now must
determine an appropriate remedy.
Defendants request that Holder’s
testimony be excluded, while White argues for the less severe
White does not address it, but the discovery provided with the pending
summary judgment motions suggests that Holder’s involvement in the case
from August 22, 2016, when the mowers were stolen from Scott’s Tractor,
until White’s arrest on March 6, 2017, was limited to speaking to Matt
Stalls about his suspicions that White had a stolen mower and being
present at the Whites’ house when the investigating officers arrived to
execute the search warrant, although she left before the search started.
(Docs. 128-2 at 30:8-13; 140-2 at 95:22-96:9.) This is far from the
kind of direct, active involvement in the underlying facts that, e.g.,
a treating physician has.
remedy of reopening discovery for issuance of a report and a
If a party does not comply with Rule 26(a), that party “is
not allowed to use that information or witness to supply evidence
on a motion, at a hearing, or at a trial, unless the failure was
substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1).
“[T]he basic purpose of Rule 37(c)(1) [is] preventing surprise and
prejudice to the opposing party.”
S. States Rack & Fixture, Inc.
v. Sherwin-Williams Co., 318 F.3d 592, 596 (4th Cir. 2003).
district court has broad discretion to determine whether to exclude
undisclosed expert evidence and should consider: “(1) the surprise
to the party against whom the evidence would be offered; (2) the
ability of that party to cure the surprise; (3) the extent to which
allowing the evidence would disrupt the trial; (4) the importance
of the evidence; and (5) the nondisclosing party’s explanation for
its failure to disclose the evidence.”
Stuart, 2014 WL 204214, at
*1 (quoting S. States, 318 F.3d at 597).
Here, the court will exercise its discretion and deny the
motion to exclude Holder’s testimony at this time, finding that
the failure to provide a written report, while unjustified, may be
harmless and subject to cure.
See Haynes v. City of Durham, N.C.,
No. 1:12CV1090, 2016 WL 469608, at *9 (M.D.N.C. Feb. 5, 2016)
(“[E]ven when a party fails to ‘provide information or identify a
witness as required by Rule 26(a),’ the exclusion that ordinarily
substantially justified or is harmless.’” (quoting Fed. R. Civ. P.
White argues that he “reasonably and in good faith believed”
that no report was required for Holder.
(Doc. 123 at 7.)
“Rule 37(c)(1) does not require a finding of bad faith or callous
disregard of the discovery rules.”
S. States, 318 F.3d at 596.
Nevertheless, while the court need not find bad faith, the “party’s
explanation for its failure to disclose the evidence” is a relevant
consideration, and courts look far more critically when it appears
the non-disclosing party is engaging in discovery gamesmanship.
See Tokai Corp. v. Easton Enters., Inc., 632 F.3d 1358, 1365-66
(Fed. Cir. 2011) (affirming district court’s exclusion of expert
when plaintiff made a “tactical decision not to submit written
reports from its experts” and admonishing, “Conclusory expert
reports, eleventh hour disclosures, and attempts to proffer expert
testimony without compliance with Rule 26 violate both the rules
and principles of discovery, and the obligations lawyers have to
Exclusion and forfeiture are appropriate consequences
In addition, the balance of relevant factors weighs in White’s
Holder is White’s sole expert witness, and he argues that
“his case will inevitably be weakened” if he cannot offer her
(Doc. 123 at 8.)
Defendants can hardly say they were
surprised, given that White timely disclosed Holder as an expert
and the general parameters and basis for her testimony.
a plain reading of Holder’s proposed testimony would have made
clear to Defendants, as they apparently concluded, that she should
be treated as a retained expert witness.
After the deadline for
expert disclosures on July 31, 2020 -- when it became clear that
White had identified Holder as an expert but was not providing a
written report -- Defendants did not inquire of White’s counsel as
to the report, nor did they indicate their intention to move to
exclude the witness on this ground.
They also declined to depose
her but waited two months until the close of discovery to seek her
While Defendants had no duty to inform their opposing
counsel of their position and intentions as to Holder, these facts
are relevant to the court’s exercise of its discretion to fashion
a remedy that is fair under the circumstances.
It is also
important that a trial date has not yet been set so there is no
trial to “disrupt.”
distinguishable, involving, for example, an expert attempting to
offer a new opinion during trial, see S. States, 318 F.3d at 593,
or one month before, see Campbell v. United States, 470 F. App’x
153, 157 (4th Cir. 2012); a party filing its expert disclosures
late, see Wilkins v. Montgomery, 751 F.3d 214, 219 (4th Cir. 2014);
or a party failing to adhere to the court’s prior orders regarding
expert disclosure, see Saudi v. Northrop Grumman Corp., 427 F.3d
271, 278 (4th Cir. 2005).
Because “the central purpose of Rule
37(c)(1) is to prevent last minute surprise to an opposing party,”
courts in the Fourth Circuit “generally deny motions to strike in
cases where the surprise is curable.”
SAS Inst. Inc. v. Akin Gump
Strauss Hauer & Feld, LLP, No. 5:10-CV-101-H, 2012 WL 12914641, at
*4 (E.D.N.C. Dec. 11, 2012) (citations omitted).
The court will
do likewise here.
It is difficult to determine, based on White’s limited expert
disclosure for Holder, whether she seeks to offer an opinion that
finding that probable cause is a legal question for the court, not
Holder, to decide. 18
Given this uncertainty, the court will permit
White to file an expert report for Holder within 30 days, should
he still desire to present her as an expert witness on a topic
within Holder’s Rule 26(e) disclosure which White contends is not
precluded by this court’s decision.
Defendants will be permitted
to either depose Holder within 45 days of the service of the
report, or challenge the scope of the report, should they so elect.
See GAVCO, Inc. v. Chem-Trend Inc., 81 F. Supp. 2d 633, 639
See Part II.C.3.
(W.D.N.C. 1999) (at the summary judgment stage, noting that while
defendant’s “complete failure” to provide an expert report was
“not justified,” plaintiff could have mitigated any alleged harm
by deposing the witness or moving to compel an expert report;
accordingly, court permitted plaintiff to depose the witness prior
Defendants argue they may suffer prejudice from reopening
discovery, given the pending summary judgment motions.
However, White has only offered evidence from Holder for
a single pending motion -- the summary judgment motion of GPD
Deputy Chief James Hinson -- and as explained infra, the court
need not consider Holder’s declaration to decide this motion.
Hinson points out, Holder’s opinion about the existence of probable
cause for that motion “is irrelevant to the sole question that
remained . . .
whether Deputy Chief Hinson had information
supporting probable cause for Plaintiff’s arrest.”
(Doc. 112 at
9 n.1.) The court will therefore not consider Holder’s declaration
in resolving Hinson’s motion for summary judgment. 19
Defendants also argue that Holder is an improper witness because “she
is [White’s] mother, and has been advocating for him every step of the
way.” (Doc. 118 at 14.) This argument is premature. When the nature
of Holder’s proposed testimony is more fully defined -- if and when White
files an expert report for Holder and if and when she is deposed -- the
court can consider this argument at a later time in accordance with its
gatekeeping role over expert testimony, which generally precludes the
court from making the kind of credibility assessments that are proper
for the factfinder.
See Fed. R. Evid. 702; Daubert v. Merrell Dow
Pharm., Inc., 509 U.S. 579 (1993); United States v. Lespier, 725 F.3d
testimony or evidence from Anita Holder is granted in part and
denied in part at this time, subject to Defendants’ right to
challenge any proposed testimony at a later date.
Motions to Seal
Also before the court are four separate motions to seal
documents filed by Defendants Hinson (Doc. 105), GCSO (Doc. 130),
and GPD (Doc. 138) and by Plaintiff White (Doc. 153).
filed a response to Hinson’s motion.
When a party makes a request to seal judicial records, a
procedural requirements.” Va. Dep’t of State Police v. Wash. Post,
386 F.3d 567, 576 (4th Cir. 2004).
Procedurally, the court must
alternatives to sealing”; and (3) if it decides to seal, make
specific findings and state the reasons for its decision to seal
over the alternatives.
“As to the substance, the district
court first must determine the source of the right of access with
respect to each document, because only then can it accurately weigh
437, 449 (4th Cir. 2013) (“The assessment of a witness’s credibility
. . . is usually within the jury’s exclusive purview.” (quoting United
States v. Dorsey, 45 F.3d 809, 815 (4th Cir. 1995))).
the competing interests at stake.”
Id. (quotations and alteration
“While the common law presumption in favor of access
Amendment guarantee of access has been extended only to particular
judicial records and documents.”
Stone v. Univ. of Md. Med. Sys.
Corp., 855 F.2d 178, 180 (4th Cir. 1988) (citation omitted).
Relevant here, it is unquestioned that the public has a First
Amendment right to access documents filed in connection with a
motion for summary judgment in a civil case.
Wash. Post, 386 F.3d
“Where the First Amendment guarantees access . . . access may
be denied only on the basis of a compelling governmental interest,
Stone, 855 F.2d at 180.
“The burden to overcome a
First Amendment right of access rests on the party seeking to
restrict access, and that party must present specific reasons in
support of its position.”
Wash. Post, 386 F.3d at 575; see Press–
Enterprise Co. v. Superior Court, 478 U.S. 1, 15 (1986) (“The First
Amendment right of access cannot be overcome by [a] conclusory
The public’s right of access “may be abrogated only
in unusual circumstances.”
Stone, 855 F.2d at 182.
whether these “unusual circumstances” exist in a particular case
is a fact-based inquiry conducted in light of the “specific facts
and circumstances” of the case at issue.
See Washington Post, 386
F.3d at 579.
With these standards in mind, the court turns to each motion.
First, Hinson moves to seal Docket Entries 103-5 and 103-6,
which are the RPD’s operations plan for the execution of the search
warrant and arrest of White and an audio recording of White’s
arrest and termination.
However, these documents are
not necessary to the court’s disposition of Hinson’s motion for
Further, the parties have now consented to the
audio recording being filed for public view (Docs. 105 ¶ 4; 108 at
2) and the court agrees that White has waived any confidentiality
he might have had in this record by virtue of bringing this
See Robinson v. Bowser, No. 1:12CV301, 2013 WL 3791770,
at *7 (M.D.N.C. July 19, 2013). Accordingly, the court will unseal
Docket Entry 103-6.
The court will also give Hinson 20 days to
withdraw Docket Entry 103-5, the operations plan, and his pending
motion to seal.
See United States v. Dunlap, 458 F. Supp. 3d 368,
372 (M.D.N.C. 2020) (permitting party to withdraw sealed documents
and refile with redactions).
Otherwise, the court will unseal
Next, the GPD moves to seal Docket Entries 137-5 and 137-8,
which is another copy of the RPD’s operations plan and a case
report from SBI Agent K.F. Cummings.
In Docket Entry
137-5, the RPD operations plan, GPD has redacted any identifying
information not relevant to the matter.
The court finds that these documents should be sealed.
cites to N.C. Gen. Stat. § 132-1.4, which provides that “[r]ecords
of criminal investigations conducted by public law enforcement
agencies . . . are not public records.”
As this court has noted,
§ 132-1.4 is “evidence of a strong public policy in North Carolina
in favor of privacy with respect to . . . criminal investigation
Alexander v. City of Greensboro, No. 1:09-CV-00293,
2013 WL 6687248, at *5 (M.D.N.C. Dec. 18, 2013).
extends to completed investigations involving past matters.
McCormick v. Hanson Aggregates Se., Inc., 596 S.E.2d 431, 436 (N.C.
Ct. App. 2004) (“As is clear from the plain words of the statute,
the criminal investigation exception does not apply solely to
ongoing violations of the law . . . [and] does not distinguish
(quotations and citation omitted); Gannett Pac. Corp. v. N.C. State
Bureau of Investigation, 595 S.E.2d 162, 166 (N.C. Ct. App. 2004)
protecting confidential informants and investigative techniques - “do not dissipate upon conclusion of an investigation”) (citing
News & Observer Pub. Co. v. State, 322 S.E.2d 133, 137-38 (N.C.
investigation conducted by the RPD and SBI, and both contain the
names of several non-party employees and others.
governmental interest exists to keep these documents confidential,
as evidenced by North Carolina’s strong policy promoting the
privacy of documents such as these.
See Alexander, 2013 WL
6687248, at *5; Stone, 855 F.2d at 181 (where state statute
should first determine if the records at issue are covered by the
statute, then determine whether the right of access nevertheless
outweighs the state’s public policy).
Further, the request to seal these documents is narrowly
tailored; both documents would be useless if redacted much further
to remove confidential information.
The motion is unopposed by
White or any other interested party.
And the motion has been
pending for over 90 days, yet no one has objected to the sealing
of any document during that time.
See Stone, 855 F.2d at 181
(public notice of a request to seal and an opportunity to challenge
can be done by docketing the request “reasonably in advance of
deciding the issue”). Therefore, the court will grant GPD’s motion
to seal Docket Entries 137-5 and 137-8.
Finally, GCSO moves to seal Docket Entries 128-10 and 132,
which are an excerpt from the deposition of SBI Agent Denny taken
for this case and portions of the GCSO brief in support of its
motion for summary judgment that cites to Denny’s deposition
White has also moved to seal an excerpt
from Denny’s deposition testimony and portions of his brief in
opposition to GPD’s motion for summary judgment that cites to that
testimony, Docket Entries 152-4 and 152.
The court finds that these documents should not be sealed.
Like the GPD, both the GCSO and White cite to N.C. Gen. Stat.
§ 132-1.4. 20
However, unlike GPD’s documents, Denny’s deposition
testimony is not itself a “record of [a] criminal investigation.”
North Carolina defines “records of criminal investigations” as
“all records or any information . . . that is compiled by public
law enforcement agencies for the purpose of attempting to prevent
or solve violations of the law.”
N.C. Gen. Stat. § 132-14(b)(1).
A deposition taken over three years after the relevant criminal
investigation has concluded cannot be fairly said to be “compiled
by public law enforcement agencies for the purpose of attempting
to prevent or solve violations of the law.”
Id. (emphasis added).
While Denny’s deposition details some steps she and the other
agencies took during the criminal investigation into White, it
identities, or other persons investigated but not charged.
Both parties also cite to N.C. Gen. Stat. § 153A-98 and § 160A-168.
(Docs. 130 ¶ 3; 153 ¶ 3.) However, both provisions deal with the privacy
of public employee personnel records, e.g., information relating to
hiring, firing, promotions, or disciplinary actions. Denny’s deposition
is not itself a personnel record, and nothing in it appears to implicate
McCormick, 596 S.E.2d at 436; Alexander, 2013 WL 6687248, at *5
(granting motion to seal at summary judgment stage when documents
included, in part, “information regarding police informants”);
7151147, at *11 n.6 (E.D.N.C. Dec. 11, 2014) (denying motion to
disclosure of the documents will jeopardize any ongoing criminal
investigations or reveal the names of confidential informants”).
Both GCSO and White state that they have discussed this matter
with counsel for the SBI who does not consent to the production of
Denny’s deposition. (Docs. 130 ¶ 4; 153 ¶ 4.) However, no specific
reasons are given to explain why the public’s First Amendment right
to access should be overcome in this particular circumstance.
Wash. Post, 386 F.3d at 575 (“The burden to overcome a First
Amendment right of access rests on the party seeking to restrict
access, and that party must present specific reasons in support of
its position.”); Press–Enterprise Co., 478 U.S. at 15 (“The First
Amendment right of access cannot be overcome by [a] conclusory
Accordingly, the court will deny both GCSO’s and
White’s motions to seal.
(Docs. 130; 153.)
Motions for Summary Judgment
Standard of Review
affidavits, and other discovery materials show that there is no
genuine dispute as to any material fact and the moving party is
56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
demonstrating the absence of a genuine dispute as to any material
Celotex, 477 U.S. at 323.
“Once the moving party meets its
allegations or denials contained in its pleadings, but must come
forward with some form of evidentiary material allowed by Rule 56
demonstrating the existence of a genuine issue of material fact
requiring a trial.”
Ruffin v. Shaw Indus., Inc., 149 F.3d 294,
301 (4th Cir. 1998) (per curiam) (citing Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248-49 (1986); Celotex, 477 U.S. at 324).
mere scintilla of evidence is insufficient to circumvent summary
judgment. Anderson, 477 U.S. at 252. Instead, the nonmoving party
must convince the court that, upon the record taken as a whole, a
rational trier of fact could find for the nonmoving party.
When considering a summary judgment motion, the court views
the evidence and draws all reasonable inferences in the light most
favorable to the non-moving party.
Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587-88 (1986).
The court is not
Jacobs v. N.C. Admin. Off. of the Cts., 780 F.3d
562, 568 (4th Cir. 2015).
There is no issue for trial unless
sufficient evidence favoring the non-moving party exists for a
reasonable factfinder to return a verdict in its favor.
477 U.S. at 249-50, 257.
Thus, the issue to be determined on a
unmistakably favors one side or the other, but whether a fairminded jury could return a verdict for the plaintiff on the
Id. at 252.
“If the evidence is merely
colorable, or is not significantly probative, summary judgment may
Id. at 249-50 (citations omitted).
Applying this standard, the court turns to the respective
motions of the Defendants.
White has three remaining claims against the GCSO Defendants:
a state-law trespass claim against Stalls, Wilkins, and Barnes (in
his official capacity via respondeat superior); 21 a state-law
conspiracy claim against Stalls and Wilkins; and a claim under 42
U.S.C. § 1983 for an unconstitutional search against Stalls and
Wilkins in their individual capacities.
As an initial matter, White does not contest Wilkins’s motion
for summary judgment.
(Doc. 150 at 1.)
Accordingly, the court
Travelers Casualty & Surety Company of America is also named as the
surety for Sheriff Barnes.
will grant Wilkins’s motion.
See Taylor v. Shreeji Swami, Inc.,
No. 5:17-CV-405-FL, 2019 WL 189815, at *5 (E.D.N.C. Jan. 14, 2019)
(“Plaintiff does not contest [defendant’s summary judgment] motion
motion.”); Tyree v. Bos. Sci. Corp., No. 2:12-CV-08633, 2014 WL
5320569, at *6 (S.D.W. Va. Oct. 17, 2014) (same).
White’s trespass claim is based on Stalls entering his garage
over Labor Day weekend in 2016 and discovering the mower that is
at the heart of this dispute.
A trespass claim under North Carolina law has three elements:
“(1) possession of the property by plaintiff when the alleged
trespass was committed; (2) an unauthorized entry by defendant;
Membership Corp., 588 S.E.2d 871, 874 (N.C. 2003) (quoting Fordham
v. Eason, 521 S.E.2d 701, 703 (N.C. 1999)).
At issue here is the
second element, an unauthorized entry.
Both sides present conflicting evidence as to whether Stalls
had permission from the Whites to be at their house on the day in
question, September 3, 2016.
According to Stalls, he and his wife
Brittany had taken care of the Whites’ dogs in the past, including
times when Stalls went by himself, and the Whites had never
expressly prohibited Stalls from entering their house.
128-2 at 22:4-23:4; 128-4 at 17:16-18:22.)
Stalls also points to
the text messages he exchanged with White that same day, in which
White does not challenge Stalls’s presence in his garage.
Docs. 128-3 at 6-8; 133 at 20.)
However, according to Christina
White, she had previously told her sister that she did not want
Stalls to come feed the dogs because he played too roughly with
the dogs, and to her knowledge Stalls had never been over to the
Whites’ house to care for their dogs. (Doc. 128-5 at 82:13-83:17.)
Specifically, Christina White says she told her sister, “I didn’t
like the way that Matt is around dogs and that when [Brittany
Stalls] does come and take care of the dogs I’d like for it to
just be her.”
(Id. at 83:7-9.)
At the summary judgment stage, the court is not permitted to
“weigh the evidence or make credibility determinations.”
780 F.3d at 568.
At this point, there is at least a genuine
dispute as to whether Christina White’s consent to Brittany Stalls
provided consent, express or implied, to Stalls to enter White’s
garage on this occasion.
Stalls also argues that he is protected by public official
immunity as to White’s trespass claim.
(Doc. 133 at 21.)
public officials from individual liability for negligence in the
Campbell v. Anderson, 576 S.E.2d 726, 730 (N.C. Ct. App. 2003).
Police officers are public officials who “enjoy absolute immunity
from personal liability for their discretionary acts done without
corruption or malice.”
Schlossberg v. Goins, 540 S.E.2d 49, 56
(N.C. Ct. App. 2000).
However, public official immunity only
applies if the officer is acting as a public official executing a
governmental function at the time of the incident giving rise to
See id.; Jones v. Kearns, 462 S.E.2d 245, 247-48 (N.C.
Ct. App. 1995) (officer “was on duty as a police officer when she
responded to a fellow officer’s radio call for assistance . . .
and therefore was a public official executing a governmental
discussed at length below in connection with White’s § 1983 claim
against Stalls, there are no facts showing that Stalls was on duty
when he entered White’s garage, and Stalls himself disputes that
he was acting with any law enforcement purpose.
(Doc. 156 at 8.)
If that is the case, there is no issue as to whether he was acting
in an official capacity and public official immunity does not
Accordingly, the court will deny Stalls’s motion for summary
judgment as to White’s trespass claim. 22
In his reply brief, Stalls argues for the first time that even if
there is a genuine dispute as to the trespass claim, it was nothing more
than a “technical trespass” and so the court should limit White’s
recovery to nominal damages. (Doc. 156 at 9.) Because this argument
was made for the first time in a reply brief, the court need not consider
it. See Triad Int’l Maint. Corp. v. Aim Aviation, Inc., 473 F. Supp.
2d 666, 670 n.1 (M.D.N.C. 2006) (“Reply briefs are limited to discussion
of matters newly raised in the response and may not inject new
White alleges that all Defendants, including Stalls, are
liable on a theory of civil conspiracy under North Carolina law.
(Doc. 81 ¶¶ 255-58.)
White alleges that all Defendants “entered
into an agreement and conspiracy whereby they would prosecute
Plaintiff for charges that lacked probable cause” because they
either held “personal ill will towards Plaintiff” or “desired to
advance their careers at all costs.”
(Id. ¶¶ 256-57.)
The elements of civil conspiracy are: “(1) an agreement
between two or more individuals; (2) to do an unlawful act or to
do a 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.”
Strickland v. Hedrick, 669 S.E.2d
61, 72 (N.C. Ct. App. 2008) (citation omitted).
that there is no evidence of any agreement between him and any
other Defendant to act in furtherance of the conspiracy.
133 at 18-19; 156 at 1-4.)
The court agrees.
Stalls has come forward with evidence that the other alleged
co-conspirators have either denied the existence of an agreement
or have denied speaking to (or even knowing) Stalls before White
grounds.”); Local Rule 7.3(h) (“A reply brief is limited to discussion
of matters newly raised in the response.”). Further, issues of proximate
cause are generally left to the jury. See Hampton v. Hearn, 838 S.E.2d
650, 655 (N.C. Ct. App. 2020) (citing Conley v. Pearce-Young-Angel Co.,
29 S.E.2d 740, 742 (N.C. 1944)). It will be for a jury to decide if
Stalls trespassed and, if so, if that trespass caused White any injury.
was arrested on March 6, 2017.
Specifically, the Terrys have
stated that they “have never spoken to nor [sic] communicated with
Deputy James Stalls of the Guilford County Sheriff’s Office.
fact, we had never even heard of Deputy Stalls’s name until his
attorney . . . contacted us in September 2020.” 23
GCSO Deputies Wilkins and Cook both deny the existence of
discussed with Deputy Stalls the criminal investigation” conducted
by the other agencies.
(Docs. 128-7 ¶¶ 24, 27; 128-14 ¶¶ 3-5.)
GPD Detective Schwochow testified that he does not know Stalls.
(Doc. 128-16 at 20:8-10.)
RPD Sergeant Hampshire -- the lead investigator into the theft
from Scott’s Tractor -- testified that the first time he ever met
or spoke to Stalls was in May 2017, after the search warrant was
executed at White’s house that March, and that the first time he
saw the photograph of the mower that Stalls took while in White’s
garage was when he was deposed for this case in September 2020.
(Doc. 140-2 at 52:8-12, 129:18-131:11.) Similarly, SBI Agent Denny
said she was not aware that Stalls went into White’s garage until
after the search warrant was executed, that she did not speak to
The Terrys further state, “At no time were we ever asked by anyone to
buy the mower from Mr. White. At no time were we asked by anyone to buy
the mower from Mr. White as part of a law enforcement ‘sting’ operation
or as part of a plan to help set-up Mr. White.” (Doc. 128-8 ¶ 30.)
investigation into White.
(Doc. 134 at 70:17-71:16, 145:13-21.)
Finally, BPD Detective Westmoreland -- the lead investigator into
the theft from Quality Equipment -- testified that he never spoke
to anyone at GCSO regarding his investigation, and that the first
time he heard Stalls’s name was during his deposition for this
(Doc. 128-11 at 49:16-50:4, 86:9-13.)
In response, White argues, “Circumstantial evidence may be
used to establish a claim for civil conspiracy.”
(Doc. 150 at 7
(citing Dickens v. Puryear, 276 S.E.2d 325, 337 (N.C. 1981)).)
The standard set out in Dickens, however, is more stringent than
White makes it out to be.
As the North Carolina Supreme Court put
it in that case: “Although civil liability for conspiracy may be
agreement must be sufficient to create more than a suspicion or
conjecture in order to justify submission of the issue to a jury.
An adequately supported motion for summary judgment triggers the
opposing party’s responsibility to come forward with facts, as
distinguished from allegations, sufficient to indicate he will be
able to sustain his claim at trial.”
Dickens, 276 S.E.2d at 337
Stalls does acknowledge that he spoke to several other current
and former law enforcement officers after he determined that the
mower he discovered in White’s garage had been reported as stolen.
In his deposition, Stalls states he spoke to at least two GCSO
deputies -- Phil Lowe and David Cook -- when he discovered that
the mower was stolen.
(Doc. 128-2 at 31:10-24.)
He also spoke to
Anita Holder, his stepmother and White’s mother, who had retired
from the GPD a year prior.
(Id. at 30:7-11, 38:24-39:4; Doc. 111-
2 ¶ 10.)
After these conversations, Stalls testifies, he did not speak
to anyone else and was not aware that White was under investigation
until Hampshire came to GCSO on November 2, 2016, for the knock
(Doc. 128-2 at 35:2-14.)
He further states that he did
not speak to anyone with the RPD, BPD, GPD, or SBI during the
course of their investigations (id. at 40:2-11), and White has not
Elizabeth Buskirk, also says that Stalls spoke to her on “a couple”
of occasions about White and the lawn mower, although Stalls never
told her the mower was stolen and she was not aware of that fact
until Hampshire came to GCSO for the knock and talk. 24
13 at 19:22-20:2, 30:7-13.)
These conversations, in the face of the other record evidence,
are insufficient to create “more than a suspicion or conjecture”
Stalls also spoke to members of the Pleasant Garden Fire Department,
including Todd Ross, about the case on the day White was arrested. (Doc.
128-2 at 65:12-66:20.)
White eventually filed a complaint in August
2017 with the GCSO against Stalls. (Doc. 128-12 at 4-5.) After a GCSO
internal affairs investigation, Stalls was disciplined for speaking to
Anita Holder and Todd Ross. (Doc. 128-2 at 85:3-15.)
of the existence of an agreement at this summary judgment stage.
See Dickens, 276 S.E.2d at 337.
Meanwhile, the rest of the
evidence generally shows that the investigation into White was
proceeding upon an independent basis separate from any actions
Stalls may have taken.
Because there is no genuine dispute as to
the lack of an agreement between Stalls and any other party, White
cannot sustain his conspiracy claim as to Stalls.
The court will
therefore grant Stalls’s motion for summary judgment as to this
Section 1983 Individual Capacity Claim
White’s federal § 1983 claim against Stalls is based on the
same underlying event as his state-law trespass claim -- Stalls
entering White’s garage on September 3, 2016 and taking a picture
“illegally entered [White’s] home and searched his garage without
a warrant in violation of his Fourth Amendment rights.”
To state a claim under § 1983, “a plaintiff must allege the
violation of a right secured by the Constitution and laws of the
United States, and must show that the alleged deprivation was
Further, White has specifically alleged that the “common scheme” for
the conspiracy was that Defendants “would prosecute Plaintiff for charges
that lacked probable cause.” (Doc. 81 ¶ 256.) This claim is precluded
by the court’s finding in Part II.C.4 infra, that probable cause existed
to believe White possessed stolen property and had obtained property by
committed by a person acting under color of state law.”
Atkins, 487 U.S. 42, 48 (1988).
The key issue here is the second
prong -- whether Stalls was “acting under color of state law” when
he entered White’s garage and viewed the mower. 26
contends this inquiry involves underlying factual disputes that
should be left for the factfinder, this is ultimately a legal
question that the court can resolve at the summary judgment stage.
See Goldstein v. Chestnut Ridge Volunteer Fire Co., 218 F.3d 337,
344 n.7 (4th Cir. 2000) (“[T]he ultimate resolution of whether an
actor was a state actor or functioning under color of law is a
question of law for the court.”).
The color of law requirement excludes from the reach of § 1983
all “merely private conduct, no matter how discriminatory or
Rossignol v. Voorhaar, 316 F.3d 516, 523 (4th Cir.
2003) (quoting Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40,
A defendant acts under color of state law for § 1983
purposes when he “exercise[s] power ‘possessed by virtue of state
The parties do not brief this issue particularly well. Outside of a
reference to the “under color of state law” standard in Stalls’s reply
brief (Doc. 156 at 5), the parties instead focus on whether Stalls’s
action was “motivated by a law enforcement purpose,” and neither side
cites to any case law regardless (see Docs. 133 at 22; 150 at 5-6). This
is not the operative question for a § 1983 claim. As will be seen, even
actions undertaken for private purposes can be “under color of state
law” if there is a sufficient nexus between the act and the officer’s
official status. See Rossignol, 316 F.3d at 524 (“[I]t is clear that
if a defendant’s purportedly private actions are linked to events which
arose out of his official status, the nexus between the two can play a
role in establishing that he acted under color of state law.”).
law and made possible only because the wrongdoer is clothed with
the authority of state law.’”
West, 487 U.S. at 49 (quoting United
States v. Classic, 313 U.S. 299, 326 (1941)).
situations in which an officer acts in his official capacity or
while exercising responsibilities pursuant to state law.
However, § 1983 also “includes within its scope apparently private
actions which have a ‘sufficiently close nexus’ with the State to
be ‘fairly treated as that of the State itself.’”
F.3d at 523 (quoting Jackson v. Metro. Edison Co., 419 U.S. 345,
“Acts of police officers in the ambit of their personal,
private pursuits fall outside of 42 U.S.C. § 1983.”
Fuller, 410 F. Supp. 187, 191 (M.D.N.C. 1976).
Indicia of state
authority -- such as an officer being on duty, wearing a uniform,
or driving a patrol car -- are important considerations, although
they are not dispositive.
Revene v. Charles Cnty. Comm’rs, 882
F.2d 870, 872 (4th Cir. 1989).
performed is controlling.”
“Rather, the nature of the act
Here, the evidence is insufficient for a finding that Stalls
was acting under color of state law when he entered White’s garage
and photographed the mower.
There is no evidence that Stalls was
on duty on the day in question, nor is there any indication that
he was wearing his uniform, driving his patrol car, or exhibiting
any other outward manifestation of state authority. Indeed, Stalls
has testified -- and White does not dispute -- that Stalls and his
wife stopped by the Whites’ house on their way home from a shopping
trip on a Saturday, with their kids in tow, because of Christina
White’s request to care for the Whites’ dogs.
(Docs. 128-2 at
23:21-24:16; 128-3 ¶ 3.)
The most important consideration is the nature of the act
Revene, 882 F.2d at 872.
Here, too, Stalls’s actions
do not suggest he was acting under color of state law.
entered the garage with his wife where the Whites kept their dog
food, noticed the mower partly covered by a sheet, removed the
sheet and sat on the mower, and then took a picture of the mower’s
(Doc. 128-2 at 23:5-11, 25:25-27:8.)
Such acts do not have
a “sufficiently close nexus” with the state to be “fairly treated
as that of the State itself.”
Rossignol, 316 F.3d at 523.
is no evidence of any sort of “systematic, carefully-organized
plan” by state officials.
Cf. id. at 523-25 (off-duty sheriff’s
deputies acted under color of state law when they organized a
coordinated effort to buy up newspapers with the sole intention to
suppress speech critical of the sheriff).
Nor did Stalls summon
other officers for assistance in searching White’s house. 27
United States v. Tarpley, 945 F.2d 806, 809 (5th Cir. 1991) (offIn his complaint, White alleges that multiple GSCO officers, including
Stalls, entered his house and searched it without a warrant. (Doc. 81
¶ 141.) He has come forward with no evidence for this allegation and
has abandoned it in his briefing.
duty deputy acted under color of state law in assaulting victim
when, in significant part, he called another police officer for
assistance and identified the officer as an ally because “[t]he
presence of police and the air of official authority pervaded the
garage because of his personal status as White’s brother-in-law
and stepbrother, not because of his status as a police officer.
In other words, the entry into the garage and actions therein were
not “misuse[s] of power [Stalls] possessed by virtue of state law”
but a “purely personal pursuit.”
Cf. Jones v. Prince George’s
Cnty., No. CIV.A. AW-04-1735, 2005 WL 1074353, at *3 (D. Md. Apr.
28, 2005) (emphasis added) (noting that it is only “the misuse of
power possessed by virtue of state law, as opposed to a ‘purely
personal pursuit,’ [that] falls within the scope of Section 1983”)
(quoting Revene, 882 F.2d at 872); Nexus Servs., Inc. v. Vance,
No. 5:17-CV-00072, 2018 WL 542977, at *4 (W.D. Va. Jan. 24, 2018)
(off-duty police officer’s trespass onto company property was
“purely private” and not because of her capacity as an officer).
As the Fourth Circuit has admonished, “where the action arises out
of purely personal circumstances, courts have not found state
action even where a defendant took advantage of his position as a
(collecting cases); see also Screws v. United States, 325 U.S. 91,
111 (1945) (“[A]cts of officers in the ambit of their personal
pursuits are plainly excluded” from § 1983 liability); Bonenberger
v. Plymouth Twp., 132 F.3d 20, 24 (3d Cir. 1997) (“[A] state
employee who pursues purely private motives and whose interaction
with the victim is unconnected with his execution of official
duties does not act under color of law.”).
White himself claims
that Stalls’s actions were motivated out of jealousy toward White.
(Doc. 81 ¶¶ 33, 103.)
But the fact that Stalls is
employed as a sheriff’s deputy does not render every action he
takes in his personal capacity one conducted under color of state
Such private, personal disputes, divorced from any nexus to
the state, are beyond the scope of § 1983.
Because Stalls was not acting under color of state law when
he entered White’s garage, White cannot sustain his § 1983 claim
against him. Stalls’s motion for summary judgment as to this claim
will therefore be granted.
Sheriff Barnes and Travelers
The sole remaining claim seeks to hold Sheriff Barnes liable
Travelers Casualty & Surety Company of America is also named as a
Defendant as the issuer of the Sheriff’s surety bond.
The doctrine of respondeat superior imposes liability on an
employer for torts committed by its employees who are acting within
the scope of their employment.
Matthews v. Food Lion, LLC, 695
S.E.2d 828, 830 (N.C. Ct. App. 2010).
For respondeat superior
liability to be imposed, the employee’s wrongful act must generally
be either (1) expressly authorized by the employer; (2) committed
within the scope of the employee’s employment and in furtherance
of the employer’s business; or (3) ratified by the employer.
In addition, the employee must have been
operating within the scope of his or her employment at the time of
Matthews, 695 S.E.2d at 831; Troxler v. Charter
Mandala Ctr., 365 S.E.2d 665, 668 (N.C. Ct. App. 1988) (“To be
within the scope of employment, an employee, at the time of the
incident, must be acting in furtherance of the principal’s business
employer when an employee is “engaged in some private matter of
Matthews, 695 S.E.2d at 831 (quoting Van Landingham v. Singer
Sewing Machine Co., 177 S.E. 126, 127 (N.C. 1934)).
In his complaint, White alleges that Stalls’s trespass was
“imputable to Defendant Sheriff Barnes as the trespass was done
during the course and scope of agency and done in furtherance of
Sheriff Barnes’ business.”
(Doc. 81 ¶ 200.)
However, for reasons
discussed in addressing White’s § 1983 claim against Stalls, there
is no evidence to support the contention that Stalls was acting
within the scope of his employment at the time he entered White’s
Nor is there any evidence that Sheriff Barnes expressly
authorized or ratified that act -- or, for that matter, that he
was even aware of it.
And, indeed, White seems to acknowledge as
entitled to public official immunity, White states “Defendant
Stalls is also not entitled to public officials’ immunity as to
the trespass claim because his actions were clearly outside the
scope of his official duties . . . and there was no investigation
into Plaintiff at this point pursuant to which Defendant Stalls
could be acting in any official capacity.”
(Doc. 150 at 4.)
“[b]ecause Plaintiff’s trespass claim against Defendant Stalls is
not subject to summary judgment, the respondeat superior claim
However, there is no evidence that Stalls was acting within the
scope of his employment, as must be shown for respondeat superior
liability to be imposed on Sheriff Barnes.
therefore cannot be not imputed to Sheriff Barnes, and Barnes’s
White argues elsewhere that trespass is an intentional tort. (See
Doc. 150 at 5.) This undermines his argument here, since an intentional
tort is rarely -- although not never -- considered to be within the scope
of employment for respondeat superior purposes. See Borneman v. United
States, 213 F.3d 819, 828 (4th Cir. 2000) (observing that under North
Carolina law “an intentional tort is rarely considered to be within the
scope of an employee’s employment,” although noting further that
“‘rarely’ does not mean ‘never’”) (citation omitted).
motion for summary judgment as to this claim will be granted.
Defendants: state-law trespass and conspiracy claims against all
Greensboro Search Officers who participated in the March 6 search
of White’s residence; a state-law malicious prosecution claim
against James Schwochow; and a § 1983 claim for unlawful seizure
against Deputy Chief James Hinson in his individual capacity.
White argues that the Greensboro Search Officers trespassed
when they entered his house to retrieve GPD property on March 6
while the search warrant was being executed by the SBI and RPD.
A North Carolina trespass claim has three elements: “(1)
possession of the property by plaintiff when the alleged trespass
was committed; (2) an unauthorized entry by defendant; and (3)
damage to plaintiff.”
Singleton, 588 S.E.2d at 874 (citation
At issue here is the second element, an unauthorized
The Greensboro Search Officers argue that they were at
White’s house with consent and legal privilege, and that they are
entitled to public official immunity.
(Doc. 137 at 27.)
As to consent, the Greensboro Search Officers first argue
that they had consent from the other law enforcement agencies to
collect GPD property while a search under a lawful warrant was
They cite no authority that an agency
executing a search warrant can give permission to officers from
another agency to enter the property, and the court is not aware
In North Carolina, a search warrant “may be executed by
jurisdiction, whose investigative authority encompasses the crime
or crimes involved.”
N.C. Gen. Stat. § 15A-247.
encompass the GCSO, as White’s house was in Guilford County, and
the SBI, which enjoys statewide jurisdiction, see N.C. Gen. Stat.
It would also cover the RPD, which applied for and
obtained the search warrant to search for items related to the
theft of lawn mowers.
However, it would not cover a different
agency that sought to enter and retrieve different property.
United States v. Sanchez, 509 F.2d 886, 889 (6th Cir. 1975) (search
warrant obtained by state officers to search for narcotics “could
not be used to validate the entrance of a federal officer having
both probable cause and the opportunity to obtain a separate
warrant to search for different items of property”).
The Greensboro Search Officers also argue that they had
consent from Christina White to collect GPD property.
“[C]onsent is a defense to a claim of trespass.”
Lion, Inc. v. Cap. Cities/ABC, Inc., 194 F.3d 505, 517 (4th Cir.
1999) (citing Miller v. Brooks, 472 S.E.2d 350, 355 (N.C. Ct. App.
GPD Lieutenant Raines says he “approached Plaintiff’s
wife and asked for her consent” and that Christina White “gave her
consent . . . for GPD to collect and remove the GPD property.”
(Doc. 157-1 at 4.)
However, Christina White testified in her
deposition that she never gave Raines, who was the first GPD
officer to arrive at the White’s house and the first to speak to
her, permission to look for GPD equipment.
(Doc. 152-2 at 17:21-
She further states that GPD officers were already looking
for GPD equipment in her house before they spoke to her.
This is seemingly confirmed by Raines himself, who
acknowledges that the SBI and RPD first escorted him to the master
bedroom where he saw GPD property, and then he asked Christina
White for consent to collect GPD property.
(Doc. 157-1 at 4.)
At this point there is at least a genuine dispute as to whether
the GPD had consent to enter White’s residence to collect GPD
The Greensboro Search Officers next argue that they had a
legal privilege to be at White’s house.
(Doc. 137 at 28-30.)
White contends that finding a legal privilege here would require
an extension of North Carolina law, and would not be appropriate
in any event on these facts.
“As an affirmative defense to trespass, a defendant may assert
that its entry onto plaintiff’s land ‘was lawful or under legal
CDC Pineville, LLC v. UDRT of N.C., LLC, 622 S.E.2d 512,
518 (N.C. Ct. App. 2005) (quoting Singleton, 588 S.E.2d at 874).
The Greensboro Search Officers acknowledge that finding a legal
privilege under these facts would require an extension of North
(See Doc. 137 at 28 (“North Carolina appellate
courts do not appear to have addressed a trespass under these
The court declines to do so at this time.
a federal court applying North Carolina law, this court is obliged
to apply the jurisprudence of North Carolina’s highest court, the
Supreme Court of North Carolina.
See Private Mortg. Inv. Servs.,
Inc. v. Hotel & Club Assocs., Inc., 296 F.3d 308, 312 (4th Cir.
When that court has not spoken directly on an issue, this
court must “predict how that court would rule if presented with
The decisions of the North Carolina Court of
Appeals are the “next best indicia” of what North Carolina’s law
is, though its decisions “may be disregarded if the federal court
is convinced by other persuasive data that the highest court of
the state would decide otherwise.”
Id. (quoting Liberty Mut. Ins.
Co. v. Triangle Indus., Inc., 957 F.2d 1153, 1156 (4th Cir. 1992)).
In predicting how the highest court of a state would address an
issue, this court “should not create or expand a [s]tate’s public
Time Warner Entm’t-Advance/Newhouse P’ship v. Carteret-
Craven Elec. Membership Corp., 506 F.3d 304, 314 (4th Cir. 2007)
(alteration and quotation omitted).
Here, prior North Carolina
cases that discuss whether a defendant’s trespass was “lawful or
Singleton, 588 S.E.2d at 874 (utility company lacked contractual
authorization to enter plaintiff’s land to repair power lines);
Dempsey v. Silver Creek Homeowners Ass’n, Inc., 647 S.E.2d 689
(N.C. Ct. App. 2007) (express easement in deed permitted homeowners
association to enter plaintiff’s land to landscape).
Defendants cite to the Restatement of Torts § 198 as well as
cases in other jurisdictions for the proposition that an actor has
a legal privilege to enter another’s land at a reasonable time and
manner to recover personal property.
(Doc. 137 at 28-29.)
§ 198 by its express terms applies to situations in which the
property “has come upon the land otherwise than with the actor’s
Restatement (Second) of Torts § 198 (1965). 29
therefore be the basis of any reason to enter White’s home -- was
White’s GPD-issued equipment, which the officers at the time
believed White possessed merely by virtue of his employment as a
They had no inkling that he may have possessed more
than what had been issued him.
The Greensboro Search Officers
surely were not authorized to enter White’s home without permission
to gather his work-related equipment merely because he had been
In full, § 198 reads: “One is privileged to enter land in the possession
of another, at a reasonable time and in a reasonable manner, for the
purpose of removing a chattel to the immediate possession of which the
actor is entitled, and which has come upon the land otherwise than with
the actor’s consent or by his tortious conduct or contributory
told moments before that his employment had been terminated.
Contrary to GPD’s argument (Doc. 157 at 3), the fact that the
Greensboro Search Officers eventually discovered allegedly stolen
GPD property, which would be present at White’s house without GPD
consent, does not change the analysis because that property was
discovered after GPD entered White’s house.
Thus, even were North
Carolina courts to adopt § 198, it would not apply to these facts.
The cases Defendants cite are similarly distinguishable. Cf. State
v. Logsdon, 827 N.E.2d 869, 872 (Ohio App. 2005) (overturning
criminal trespass conviction when protestor, after his sign was
stolen without his consent and reasonably concerned the sign would
be destroyed, entered a clinic and quickly and peaceably retrieved
Finally, the Greensboro Search Officers argue they enjoy
public official immunity against White’s trespass claim.
137 at 31-34.)
A public official is entitled to immunity from suit in his
individual capacity unless he “engaged in discretionary actions
which were allegedly: (1) corrupt; (2) malicious; (3) outside of
and beyond the scope of his duties; (4) in bad faith; or (5)
willful and deliberate.”
Smith v. Jackson Cnty. Bd. of Educ., 608
S.E.2d 399, 411 (N.C. Ct. App.
2005) (citation omitted).
As this court observed in its prior opinion, White does not
deliberately. Rather, he alleges that the officers knowingly acted
outside the scope of their duties by operating outside their
jurisdiction with no lawful basis to be present at White’s house.
White, 408 F. Supp. 3d at 705–06.
The Greensboro Search Officers
now argue that they did not participate in the search or “seize”
(Doc. 137 at 32-33.)
But that is beside the point.
White’s claim is for trespass. The issue is whether the Greensboro
Search Officers made an “unauthorized entry” into White’s house
for purposes of common law trespass, not what they did when they
See Singleton, 588 S.E.2d at 874.
For the reasons
discussed, there is at least a genuine dispute as to whether the
GPD had any lawful right to be present at White’s house.
Greensboro Search Officer’s motion for summary judgment as to
White’s trespass claim will therefore be denied.
The Greensboro Search Officers also argue that, even if they
appropriate on White’s damages claim because the trespass did not
cause White’s alleged damages. 30
(Doc. 137 at 44-46.)
“North Carolina courts have concluded that a trespasser ‘is
The Greensboro Defendants make the same argument about White’s
malicious prosecution claim against Schwochow.
Because the court is
granting the motion for summary judgment as to that claim, it need not
consider the alternative argument about causation.
liable for all damage proximately resulting from his wrongful
Food Lion, Inc. v. Cap. Cities/ABC, Inc., 964 F. Supp.
956, 960 (M.D.N.C. 1997) (quoting Smith v. VonCannon, 197 S.E.2d
524, 528 (N.C. 1973)). Nominal damages are available in a trespass
See VonCannon, 197 S.E.2d at 528.
As White points out
(Doc. 154 at 13), proximate cause is generally a question of fact
for the jury.
See Hampton, 838 S.E.2d at 655 (“‘[W]hat is the
proximate cause of an injury is ordinarily a question for the jury
. . . It is to be determined as a fact, in view of the circumstances
of fact attending it.’”) (quoting Conley, 29 S.E.2d at 742). Given
this, the court will deny the motion for summary judgment on this
It will be up to the jury to determine whether the
Greensboro Search Officers trespassed and, if so, what, if any,
injury was caused by it.
White’s other remaining claim against all the Greensboro
Search Officers is for civil conspiracy.
For a civil conspiracy under North Carolina law, White must
prove “(1) an agreement between two or more individuals; (2) to do
an unlawful act or to do a 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.”
669 S.E.2d at 72. Because a conspiracy claim alone is insufficient
to impose civil liability, the Defendants subject to the claim
must also have caused an injury pursuant to a wrongful act done in
furtherance of the conspiracy.
542, 550-51 (N.C. 2018).
See Krawiec v. Manly, 811 S.E.2d
In other words, “A claim for conspiracy
. . . cannot succeed without a successful underlying claim.”
Grp., Ltd. v. Glasgow, 534 S.E.2d 233, 236 (N.C. Ct. App. 2000).
Here, because the court is denying Defendants’ motion for summary
judgment as to the trespass claim against all Greensboro Search
Officers, that trespass claim is the necessary predicate.
However, a successful conspiracy claim also requires proof of
an agreement between two or more persons to do a wrongful act in
furtherance of the conspiracy.
As discussed in addressing the
liability for conspiracy may be established by circumstantial
evidence, the evidence of the agreement must be sufficient to
create more than a suspicion or conjecture in order to justify
submission of the issue to a jury.”
Dickens, 276 S.E.2d at 337.
The Greensboro Search Officers have put forward evidence that
they were present at White’s house almost entirely in response to
The one exception is Williamson, who seemingly reported to White’s
house on his own volition after speaking with Raines who needed
assistance identifying SRT gear. (Doc. 137-14 at 4.) The specific facts
are laid out in Part I.A, but to recap: Raines reports that he “was made
aware that Mr. White was terminated and instructed to respond to his
residence . . . to collect his gear.” (Doc. 137-10 at 15.) He instructed
Barham to come with him. (Id.; Doc. 137-12 at 3.) Similarly, Williamson
instructed Lowe to come to White’s house to identify SRT sniper
generally state that they were not aware that White had been fired
or that a search warrant was being executed until that day.
example, Schwochow states his supervisor, Sigmon, did not explain
to him that White was fired and arrested until they were on their
way to White’s house.
(Doc. 137-20 ¶ 5.)
Similarly, Raines states
that on March 6 he was “made aware” that White was terminated,
“instructed to respond to his residence,” and “informed” that
officers from other agencies would be present executing a search
(Doc. 137-10 at 15.)
In response, White points to two pieces of what he categorizes
as “circumstantial evidence” of a conspiracy.
(Doc. 154 at 12-
The first is the fact that Hampshire’s operations plan
states, on the penultimate page, “During the search any Greensboro
issued equipment located should be reported to Sgt. Hampshire, who
will notify Lt. Coates to have GPD personnel respond and collect
(Doc. 139 at 11.)
The second is Hampshire
testifying that, at some point, “two GPD officers” looked at his
search warrant and concluded that it covered GPD equipment.
140-2 at 124:2-14.)
On this record, there is no genuine dispute of material fact
equipment. (Docs. 137-14 at 5; 137-15 at 4.) Likewise, GPD’s Property
Crimes division ordered Sigmon to take the next available GPD detective
and report to White’s house. (Doc. 137-18 at 3.)
Schwochow to accompany him. (Id.; Doc. 137-20 ¶ 5.) Finally, Albert
was ordered by her supervisor to go to White’s house. (Doc. 137-21 at
agreement with Hampshire, the RPD, or anyone else to trespass on
Hampshire prepared the operations plans, and it
was reviewed by Coates, his supervisor.
(Id. at 89:19-23.)
is no evidence that anyone from GPD requested to be included or
was even aware that they were so included.
Nobody from GPD was
present during the March 6 meeting at the SBI office before the
search warrant was executed.
(Docs. 137-2 at 2; 137-4 at 84:21-
Nor was anyone present at the start of the search.
applied for the search warrant and was responsible for executing
(Docs. 140-2 at 89:24-90:1; 140-12.)
The GPD’s role in the
investigation of the theft of mowers from Scott’s Tractor was, on
the basis of the record before the court, seemingly minimal.
Hampshire recalls only having conversations with a single GPD
officer during the investigation.
(Doc. 140-2 at 73:4-13.)
Agent Denny recalls only asking GPD for White’s work schedule and
keeping Chief Scott up to date on the investigation.
GPD Chief Scott testified that it was on the basis
of the investigating agencies’ determination of probable cause to
arrest White that he decided to fire White.
(Doc. 137-6 ¶¶ 9-11.)
White’s circumstantial evidence does not create “more than a
suspicion or conjecture” that an agreement existed between the
Greensboro Search Officers and any other Defendant to trespass at
White’s house. 32
See Dickens, 276 S.E.2d at 337.
The court will
therefore grant the Greensboro Search Officers’ motion for summary
judgment as to the conspiracy claim against them.
White’s malicious prosecution claim against GPD Detective
James Schwochow centers on the investigation Schwochow performed
into White’s alleged theft of GPD equipment and the SBI’s decision
to pursue felony larceny charges against White, charges that were
eventually resolved in White’s favor. 33
To bring a claim for malicious prosecution in North Carolina,
participated in the criminal proceeding against the plaintiff; (2)
proceeding terminated in favor of the plaintiff.”
Moore v. Evans,
476 S.E.2d 415, 421 (N.C. Ct. App. 1996) (alterations and citation
In his complaint, White alleged that “all” Defendants either held
“personal ill will towards Plaintiff,” or “desired to advance their
careers at all costs . . . regardless of . . . evidence that Plaintiff
was not responsible for the crime.” (Doc. 81 ¶ 257.) White has produced
no evidence of such conclusory allegations.
The record reflects that the possession of stolen goods and obtaining
property by false pretenses charges related to the mower filed in
Alamance County were dismissed for improper venue. (Doc. 44-7.) The
dismissal contains the following note by the prosecutor: “[I]t has
recently been determined that this defendant’s criminal actions have an
insufficient connection to this county.
Although this defendant did
commit these crimes, the proper venue for these offenses is not in
Alamance County.” (Id.) There is no indication how the felony larceny
charge brought by the SBI in Guilford County was resolved other than the
unchallenged allegation in the complaint that it was eventually resolved
in White’s favor. (Doc. 81 ¶ 98.)
Schwochow argues that White’s malicious prosecution claim
fails because (1) the SBI made an independent decision to charge
White with felony larceny, (2) probable cause existed to charge
White with felony larceny, and (3) Schwochow did not have the
(Doc. 137 at 34-40.)
The court need not address
all three elements because, as Schwochow argues, there was probable
cause to support the arrest warrant of White for felony larceny.
State v. Benters, 766 S.E.2d 593, 598
“The test for whether probable cause exists is an
objective one—whether the facts and circumstances, known at the
time, were such as to induce a reasonable police officer to arrest,
imprison, and/or prosecute another.”
Moore, 476 S.E.2d at 422.
Probable cause requires only a “probability or substantial chance
of criminal activity, not an actual showing of such activity.”
Benters, 766 S.E.2d at 598 (citation omitted).
In the malicious
prosecution context, probable cause exists when the facts and
circumstances known to the officer “would induce a reasonable man
to commence a prosecution.”
Turner v. Thomas, 794 S.E.2d 439, 444
(N.C. 2016) (citing Best v. Duke Univ., 448 S.E.2d 506, 510 (N.C.
The fact that White’s criminal charges were eventually
dropped does not automatically “negate the existence of probable
cause at the time prosecution was commenced.” Id. at 445 (citation
White argues that “[a]lthough Defendant Schwochow may have
produced a lengthy investigatory file . . . he in fact performed
little to no independent investigation.”
is not clear what White means by this.
(Doc. 154 at 9-10.)
Schwochow was present at
the March 6 search of White’s house at which multiple GPD officers
equipment than a typical GPD officer would be assigned.
e.g., Docs. 137-10 at 16-21; 137-14 at 4-5.)
As part of his
subsequent investigation, Schwochow spoke to at least five GPD
officers who were knowledgeable or had documentation about what
equipment White had and had not been assigned, and the value of
(Doc. 137-20 ¶ 14.)
He concluded that the value
of the recovered GPD property was over $26,000.
2; 137-27 at 2.)
(Docs. 137-10 at
He also received a letter from the owner of the
store that sold custom-made bicycles to GPD, which stated, “These
bicycles were unique, not supplied to any other customers in their
The final case file of his investigation
totaled over 100 pages of notes, inventory, and supplemental
reports from the officers involved.
By time he completed his report, Schwochow would have known
Equipment of the same type as that used by GPD, including
trauma pates, was found at White’s house in excess of what
White had been issued.
(Doc. 137-20 ¶ 19.)
excessive equipment and not likely to be privately purchased.
(See, e.g., Doc. 137-10 at 16-17.)
ballistic vests with the names of former GPD officers on the
(Docs. 137-12 at 4; 137-25.)
The total value of the
unissued equipment was over $26,000.
The bicycle found in White’s garage was identical to those
custom-made for GPD and not supplied to any of the bicycle
dealer’s other customers.
White had been
assigned a GPD bicycle at one point but had returned it and
had not been reissued a new one.
(Doc. 137-10 at 11.)
For example, Williamson told Schwochow that White
volunteered to drive the SRT truck to training when he was
not required to, which would have given him the opportunity
to steal SRT ammunition.
(Id. at 5.)
White had also been
assigned to the GPD Logistics Department from October 31,
2016, until he was fired on March 6, 2017, where he had access
to several areas where GPD equipment was stored.
10 at 6, 22; 137-22 ¶ 9.)
White had been terminated and arrested for selling a stolen
commercial lawn mower.
A district attorney and magistrate later reviewed the evidence and
concluded that probable cause existed to arrest White for felony
(Docs. 137-4 at 166:12-19; 137-27.)
White does not appear to dispute these aspects of Schwochow’s
Rather, he argues about what Schwochow did not do
-- specifically, that Schwochow “ignored or failed to investigate
numerous areas that could or would have uncovered exculpatory
evidence,” including failing to interview White.
(Doc. 154 at
10.) However, even assuming that Schwochow -- or, for that matter,
investigation, that does not negate the probable cause established
exculpatory evidence known to him, a failure to pursue potentially
exculpatory leads does not negate probable cause.
See State v.
Memije, 737 S.E.2d 191 (N.C. Ct. App. 2013) (“Reasonable law
enforcement officers are not required to exhaust every potentially
exculpatory lead or resolve every doubt about a suspect’s guilt
before probable cause is established.” (quoting Wadkins v. Arnold,
Siwinski, 942 F.2d 257, 264 (4th Cir. 1991) (“It will, of course,
always be possible to contend in court that an arresting officer
might have gathered more evidence, but judges cannot pursue all
the steps a police officer might have taken that might have shaken
his belief in the existence of probable cause.”); Miller v. Prince
George’s Cnty., MD, 475 F.3d 621, 630 (4th Cir. 2007) (“It is also
plain that an officer is not required to exhaust every potentially
exculpatory lead or resolve every doubt about a suspect’s guilt
before probable cause is established.” (quotations and citation
Here, there is no evidence that Schwochow was aware of any
potentially exculpatory evidence. 34
It is also not necessary to
interview the suspect to establish probable cause.
v. Richland Cnty. Sheriff’s Dep’t, 431 F.3d 415, 418–19 (4th Cir.
2005) (probable cause existed to arrest teacher for assaulting a
student based on victim’s identification of the suspect, even
though officer did not visit crime scene, interview anyone besides
victim and her mother, or discuss the incident with the school’s
Finally, while not dispositive, the fact that
both a prosecutor and a neutral magistrate found probable cause
weighs in Schwochow’s favor here.
See Wadkins, 214 F.3d at 541
The single example of exculpatory evidence White cites is that GPD
Detective Lindsay Albert reviewed a log of White’s card swipe activity
from November 2016 to March 2017 and did not observe White using his
badge to enter a city building outside normal Monday to Friday business
hours. (Doc. 154 at 10.) It is not immediately clear how this evidence
is exculpatory; White could have stolen GPD equipment during these hours,
as the facts known to Schwochow suggest was possible given that White
was assigned to the GPD Logistics Division.
More importantly, while
this finding appears in Albert’s personal report and is contained in the
case file (see Doc. 137-24 at 73), it is not clear that Schwochow was
personally aware of this fact.
(in the context of a qualified immunity analysis, concluding that
an officer’s conference with a prosecutor and the “subsequent
issuance of the warrants by a neutral and detached magistrate weigh
heavily toward a finding that [the officer] is immune” from suit);
Smith v. Tilley, No. 2:17-CV-14-FL, 2019 WL 960602, at *6, report
and recommendation adopted, 2019 WL 942964 (E.D.N.C. Feb. 25, 2019)
(“[T]he fact that the officer possessed a warrant issued by a
Because probable cause existed to arrest White for felony
larceny for theft of GPD equipment, therefore, his North Carolina
malicious prosecution claim against Schwochow fails. 35
Finally, because there is no longer any underlying claim,
White is also unable to maintain his conspiracy claim against
Schwochow. See Krawiec, 811 S.E.2d at 550-51 (N.C. 2018); Glasgow,
White does not argue that Schwochow’s use of evidence obtained from a
possible trespass to establish probable cause is impermissible as fruit
of the poisonous tree so as to give rise to relief in this civil action.
To be sure, the “use of fruits of a past unlawful search or seizure
works no new Fourth Amendment wrong.” United States v. Leon, 468 U.S.
897, 906 (1984) (quotations and alteration omitted); see Lingo v. City
of Salem, 832 F.3d 953, 960 (9th Cir. 2016) (“[N]othing within the fruitof-the-poisonous-tree doctrine suggests that an officer must ignore
facts that would give him probable cause to arrest a person merely
because those facts were procured through an unlawful search.”); White,
408 F. Supp. 3d at 694 (“[I]t is clear that the exclusionary rule and
the fruit of the poisonous tree doctrine simply do not apply in civil
cases.”). Further, White also does not argue that Judge Biggs’s opinion
in the federal case, in which she held that the plain view doctrine did
not apply to firearms seized from White’s house during the March 6
search, has any bearing on the probable cause analysis here. Indeed,
that opinion dealt only with the firearms, not the rest of the GPD
equipment found at White’s residence.
534 S.E.2d at 236 (“A claim for conspiracy . . . cannot succeed
without a successful underlying claim.”). The court will therefore
grant Schwochow’s motion for summary judgment as to the conspiracy
claim as well.
Section 1983 Individual Capacity Claim
GPD Deputy Chief James Hinson moves for summary judgment as
to the sole remaining claim against him -- a § 1983 claim for
unconstitutional seizure in his individual capacity.
Specifically, Hinson argues that he is entitled to summary judgment
because the evidence shows he neither arrested nor handcuffed
White, that he merely assisted other officers in their lawful
determine there was probable cause to arrest White. Alternatively,
Hinson argues that even if he could be found liable for an
unconstitutional seizure, he is entitled to at least partial
summary judgment on White’s damages claim.
(Doc. 103 at 8-10.)
White contends that even if Hinson did not personally handcuff
him, he still “seized” him without probable cause.
(Doc. 111 at
To state a § 1983 claim for an unconstitutional seizure, an
officer must have “seized a plaintiff pursuant to legal process
that was not supported by probable cause and . . . the criminal
proceeding must have terminated in the plaintiff’s favor.”
408 F. Supp. 3d at 701 (quoting Burrell v. Virginia, 395 F.3d 508,
514 (4th Cir. 2005)) (alterations omitted).
The court can assume, without deciding, that White was seized
by Hinson for purposes of this claim, because White has failed to
satisfy the second element of an unconstitutional seizure -- lack
of probable cause.
supporting the arrest warrant of White gave rise to probable cause,
and thus granted a motion to dismiss the malicious prosecution
claim against BPD Detective Cody Westmoreland, who authored the
See id. at 713.
In other words, sufficient facts
existed for a reasonable person in Westmoreland’s position to
believe White had committed the crimes alleged.
importance were the facts provided by the Terrys, including how
the Terrys had purchased a mower from White, suspected it was
stolen, reported it to the Durham County Sheriff’s Office, and
identified White as the seller; how the VIN the Terrys provided
indicated that the mower was stolen; and how the location where
White reported he had purchased the mower was not large enough for
the sale he described and the retailer did not believe he would
have permitted such a sale.
Id. at 698, 713.
However, the court was unable to conclude at that time that
Officer Hinson had probable cause to arrest White.
Id. at 702.
At that point, the court only had a portion of the arrest warrant;
it did not have the full arrest warrant, including any affidavit
setting forth the factual basis for a determination of probable
Id. at 701.
This was not a problem for Westmoreland, who
personal knowledge of the facts giving rise to probable cause.
Id. at 713 n.27.
But Hinson was not involved in the investigation,
and the record did not reflect at that stage what facts were known
Hinson had apparently reviewed the unissued arrest
warrant, but he could not rely on it because White was arrested
before the magistrate signed the warrant and this court was not in
position to have independently reviewed the basis for the arrest
See id. at 702.
Accordingly, the court denied Hinson’s
motion to dismiss White’s malicious prosecution claim.
Specifically, it appears that there is no “full
arrest warrant” that would include an affidavit establishing the
factual basis for probable cause.
(See Doc. 103 at 20 n.3
magistrate for Plaintiff’s arrest.
Rather, the factual basis for
the arrest likely was presented orally to the magistrate.
the common practice for state crimes.”).)
As such, Hinson relies
on the facts developed in discovery.
agencies had probable cause to arrest White.
Hinson has now
established that the investigating agents from the RPD and SBI
informed GPD Chief Scott of the basis for their probable cause,
who in turn informed Hinson of the same and directed Hinson to be
present at the March 6 termination meeting after which the RPD and
SBI would arrest White.
(Doc. 103-1 ¶¶ 9, 14-16.)
on the date of the arrest, Hinson knew that nine lawn mowers had
been stolen from Scott’s Tractor in August 2016, that the Terrys
had purchased a mower from White in September 2016, that the VIN
was missing from the mower the Terrys purchased, that the VIN White
provided the Terrys belonged to a different mower, and that the
RPD had investigated the location where White said he purchased
the mower and concluded it could not accommodate the sale he
(Id. ¶ 7.)
In other words, Hinson was aware of the
same facts as the investigating agents that this court found
established probable cause to arrest White.
An arresting officer
is permitted to rely on the valid probable cause determination of
effectuating an arrest.
See United States v. Laughman, 618 F.2d
1067, 1072 (4th Cir. 1980) (“[S]o long as the officer who orders
an arrest or search has knowledge of facts establishing probable
cause, it is not necessary for the officers actually making the
arrest or conducting the search to be personally aware of those
facts.”); United States v. Ittenbach, No. 5:14-CR-268-FL, 2015 WL
6455354, at *1, *7 (E.D.N.C. Oct. 26, 2015) (no unlawful seizure
when, after a six-month investigation into the defendant, an FBI
agent directs a Highway Patrol trooper to effectuate a traffic
existence of his probable cause to the agency or officers that
effected the seizure”).
In response, White points to the declaration of Anita Holder,
a former GPD police officer, to argue that there remains an issue
of material fact as to the existence of probable cause.
111 at 9; 111-2.)
In relevant part, she concludes, upon a review
of some portion of the investigative materials, that, “In my
opinion based upon my extensive experience as a law enforcement
officer, a reasonable officer in Defendant Hinson’s position . . .
knew or should have known that probable cause did not exist to
arrest Plaintiff on March 6, 2017.”
(Doc. 111-2 ¶ 24.)
contention (Doc. 112 at 9-12), the fundamental problem is that
where the material facts are undisputed, whether probable cause
exists is ultimately a legal question, not one of expert opinion
to which a court would defer.
S.P. v. City of Takoma Park, Md.,
134 F.3d 260, 272 (4th Cir. 1998) (“When, as in this case, there
is no genuine issue of material fact, the existence of probable
cause becomes a purely legal question.”); Swick v. Wilde, No. 1:10CV-303, 2012 WL 3780350, at *7 (M.D.N.C. Aug. 31, 2012) (“In the
absence of factual disputes, the determination of probable cause
is a question of law.”); United States v. Barile, 286 F.3d 749,
760 (4th Cir. 2002) (“[T]estimony offering nothing more than a
legal conclusion -- i.e., testimony that does little more than
tell the jury what result to reach -- is properly excluded.”).
White does not dispute any of the underlying facts; he (and Holder)
simply argue that they do not amount to probable cause.
this court previously concluded that probable cause existed to
support the arrest warrant.
The evidence before the court now
shows that Hinson was aware of the same facts.
He therefore had
probable cause to justify White’s arrest.
Because the court has found that the arresting officers had
probable cause irrespective of their alleged failure to consider
the facts relied upon by Holder, Hinson is entitled to summary
judgment on this claim.
Hampshire, Coates, Chief Hassell, and the City of Reidsville.
White alleges that the Reidsville Defendants violated his Fourth
and Fifth Amendment rights in both their official and individual
property, and conspired against him.
Alternatively, he alleges
that the Reidsville Defendants violated his rights under the North
The claims will be considered in turn.
Section 1983 Official Capacity Claims
White alleges that all Reidsville Defendants, acting in their
official capacities, deprived him of his Fourth and Fifth Amendment
rights pursuant to § 1983. (Doc. 81 ¶¶ 119-125.)
Defendants respond that White cannot establish an unlawful custom,
policy, or practice to establish municipal liability; that White
cannot establish an underlying deprivation of his constitutional
rights; and that the claims against the individual Reidsville
Defendants in their official capacities are duplicative of those
alleged against the City of Reidsville.
(Doc. 140 at 16-26, 40-
White’s Fourth Amendment claim alleges that the Reidsville
information that resulted in unreasonable, illegal searches and
seizures of his person and his property.”
(Doc. 81 ¶ 120.)
from a general reference to a due process violation, White does
not further articulate his Fifth Amendment claim.
court observed in its prior opinion, “Due process claims under the
Fifth Amendment apply to federal actors, whereas due process claims
under the Fourteenth Amendment apply to state actors. The standard
of review for the two types of due process challenges does not
The court therefore construes White’s Fifth Amendment due
Amendment’s due process clause.”
White, 408 F. Supp. 3d at 691
(citing United States v. Al-Hamdi, 356 F.3d 564, 573 n.11 (4th
As a threshold matter, the claims against Hampshire, Coates,
and Hassell in their official capacities must be dismissed because
suits against governmental officers in their official capacity are
treated as suits against the government.
See Hafer v. Melo, 502
U.S. 21, 25 (1991) (“Because the real party in interest in an
official-capacity suit is the governmental entity and not the named
official, the entity’s ‘policy or custom’ must have played a part
in the violation of federal law.”) (quotation omitted).
duplicative of his claim against the City of Reidsville. (Doc. 151
It is to that claim the court now turns.
enacting § 1983,
liability on a municipality for a violation of a plaintiff’s
constitutional rights unless deliberate action attributable to the
municipality itself was the “moving force” behind the plaintiff’s
Brown, 520 U.S. 397 (1997) (citing Monell v. Dep’t of Soc. Servs.
of City of N.Y., 436 U.S. 658, 694 (1978)).
To succeed on a § 1983
claim against a municipality or municipal agency, a plaintiff must
demonstrate a constitutional violation as a result of an official
policy, practice, or custom.
Monell, 436 U.S. at 694.
practice, or custom for which a municipality may be held liable
can arise in four ways: “(1) through an express policy, such as a
written ordinance or regulation; (2) through the decisions of a
person with final policymaking authority; (3) through an omission,
such as a failure to properly train officers, that manifests
deliberate indifference to the rights of citizens; or (4) through
a practice that is so persistent and widespread as to constitute
a custom or usage with the force of law.”
Lytle v. Doyle, 326
F.3d 463, 471 (4th Cir. 2003) (alterations and quotations omitted).
There is no evidence of an express policy, omission, or
widespread practice amounting to a custom or usage with the force
Indeed, White’s claims arise out of
actions taken against him specifically; he has not alleged or
In his response in opposition to the Reidsville Defendants’
motion for summary judgment, White argues that Reidsville is liable
through the decisions of Hassell who, as chief of police of RPD,
is a person with “final policymaking authority.”
(Doc. 151 at 6-
Hassell, a person with final policymaking authority on behalf of
directly attributable to Defendant Reidsville.”
(Id. at 7.)
The court need not determine whether Hassell qualifies as a
person with “final policymaking authority” under relevant state
law or if his mere presence at the search of White’s house -absent
investigation, search, or arrest of White -- is sufficient for
municipal liability, because White cannot establish a violation of
his constitutional rights. See Lytle, 326 F.3d at 471 (“To prevail
on a § 1983 claim, [plaintiffs] must show that (1) they were
deprived of a federal statutory or constitutional right; and (2)
the deprivation was committed under color of state law.”).
The core issue -- for this, and, as will be seen, for several
other claims -- is whether probable cause existed to support
White’s arrest and the search of his house in connection with the
crimes of obtaining property by false pretenses and possession of
stolen goods. 36
See Evans v. Chalmers, 703 F.3d 636, 654 (4th Cir.
2012) (existence of probable cause forecloses unlawful search and
The elements of obtaining property by false pretenses are: “(1) a
false representation of a subsisting fact or a future fulfillment or
event, (2) which is calculated and intended to deceive, (3) which does
in fact deceive, and (4) by which one person obtains or attempts to
obtain value from another.” State v. Ricks, 781 S.E.2d 637, 643 (N.C.
Ct. App. 2016); N.C. Gen. Stat. § 14-100(a). The elements of possession
of stolen goods are: “(1) possession of personal property; (2) which has
been stolen; (3) the possessor knowing or having reasonable grounds to
believe the property to have been stolen; and (4) the possessor acting
with a dishonest purpose.” State v. Tanner, 695 S.E.2d 97, 100 (N.C.
2010); N.C. Gen. Stat. § 14-71.1.
probability that contraband or evidence of a crime will be found
in a particular place.”
Illinois v. Gates, 462 U.S. 213, 238
Probable cause to arrest exists “when the facts and
circumstances within the officer’s knowledge . . . are sufficient
to warrant a prudent person, or one of reasonable caution, in
committed . . . an offense.”
Wilson v. Kittoe, 337 F.3d 392, 398
(4th Cir. 2003) (citation omitted).
Smith v. Munday, 848 F.3d 248, 253 (4th
Cir. 2017) (quoting Gates, 462 U.S. at 230).
It is an objective
United States v. Gray, 137 F.3d 765, 769 (4th Cir. 1998)
A court must consider “the facts within the knowledge
of the arresting officers to determine whether they provide a
probability on which reasonable and prudent persons would act.”
“Probable cause is not a high bar.”
Ct. 577, 586 (2018) (citation omitted).
D.C. v. Wesby, 138 S.
It requires “more than
bare suspicion” but “less than that evidence necessary to convict.”
Gray, 137 F.3d at 769 (internal quotations omitted).
Hampshire listed the following “facts establishing probable
cause” in his search warrant application (Doc. 140-12 at 7-9):
Nine riding lawn mowers were reported stolen from Scott’s
Tractor on August 21, 2016.
On September 19, White sold one of the mowers that had been
reported stolen from Scott’s Tractor to the Terrys, who picked
up the mower from White’s house.
When the Terrys inspected the lawn mower the next day, they
noted the VIN was missing and the mower displayed 2.0 hours,
which was fewer than the 18 hours White advertised.
The VIN White provided to the Terrys was connected to a mower
sold in New York “just days before” this sale.
The Terrys discovered the actual VIN for the mower which
matched the VIN for one stolen from Scott’s Tractor.
White did not provide the Terrys a bill of sale from when he
purchased the mower.
White did not report the mower as stolen even after the Terrys
reported it to him as stolen.
Hampshire visited Sedgefield Lawn and Garden and verified
that the parking lot would not have fit a truck as described
by White, and that the manager would not have allowed any
such sales, thus negating the explanation offered by White.
During his interview with Hampshire and Denny and in response
to a question, White said he “was here to talk about the mower
he stole” which he recanted “to say sold.”
The Reidsville Defendants cite to several other facts that
would have been known to Hampshire and the other investigating
officers prior to seeking the search warrant.
These include the
inconsistent explanations White provided to both the Terrys and
Hampshire as to how he acquired the mower and why he was selling
For example, White told the Terrys he purchased the mower
from a police officer (Docs. 140-10 at 5; 128-8 ¶ 5) but he told
Hampshire and Denny that he purchased the mower from a man “from
a John Deere that was closing up North” (Docs. 140-2 at 38:1-23;
140-8 at 32:9-21).
White posted on a Craigslist ad that he was
selling the mower because he was going through a divorce (Doc.
140-6 at 1), he told the Terrys that he had used the proceeds from
the sale to pay off debts (Docs. 140-10 at 9; 128-8 ¶ 18), and he
told Hampshire and Denny he was selling because the mower was too
big for his needs (Doc. 140-2 at 44:23-45:1).
White texted the
Terrys a VIN that he said was from the bill of sale, but he did
not respond to their repeated requests for a copy.
Hampshire felt that White was “excruciatingly vague” during their
November 2016 interview about how he purchased the mower.
140-2 at 43:10-24.)
Although the Reidsville Defendants do not
discuss it, Hampshire knew from SBI Agent Denny that White had
surrounding the theft of the mowers from Scott’s Tractor and that
Strickland was under investigation by the SBI and BPD for a similar
theft in Burlington. (Id. at 41:16-42:9; Doc. 127-5 ¶ 3.) 37
In response, White makes a similar argument as he does with
GPD Detective Schwochow -- that the Reidsville Defendants “fail to
acknowledge the multiple exculpatory facts known by the Reidsville
Defendants pursuant to which no reasonable officer could have
believed probable cause existed.”
(Doc. 151 at 7.)
White argues that many of the facts that purport to establish
probable cause are either not suspicious or are inconsistent with
discrepancy with the VIN listed on DCSO Deputy Lilje’s report and
the actual VIN on the mower White sold the Terrys, and that there
(Id. at 8-10.)
White also repeats his argument
interview, which caused Judge Biggs to grant White’s motion to
suppress evidence in his federal case.
(Id. at 10-11.)
As to the first point, “probable cause does not require
See Wesby, 138 S. Ct. at 588 (rejecting such
a “divide-and-conquer approach” to probable cause).
Because Hampshire would not have been aware that it was Strickland who
delivered the mower to White’s house, as discussed in Part I.A., the
court will not consider Strickland’s delivery role for the probable cause
that any one fact . . . would not alone support a finding of
probable cause does not mean that probable cause was absent, since
an assessment of the presence of probable cause must be based on
the totality of the relevant circumstances.”
Sennett v. United
States, 667 F.3d 531, 536–37 (4th Cir. 2012) (alterations and
Here, even if White may have had an innocent
explanation for providing different reasons for selling the mower
or even if he “may” have misread the number of hours on the mower,
(see Doc. 151 at 8), these inconsistencies, combined with the other
facts known to the officers, more than suffice under the totality
of the circumstances approach the Supreme Court mandates for
See Wesby, 138 S. Ct. at 588-89.
As to the discrepancy between the VIN on Deputy Lilje’s report
and the actual VIN on the Terrys’ mower, it is not clear how that
Deputy Lilje simply copied the wrong VIN from the NCIC system onto
his report because the VINs for all eight lawn mowers reported
stolen from Scott’s Tractor were recorded together.
at 60:3-11, 64:19-22; 140-3 at 2.)
Regardless, Hampshire received
evidence of the mower’s actual VIN from the Terrys, that VIN was
connected to a stolen mower from Scott’s Tractor, and it was that
number that he listed in his search warrant application.
140-12 at 8.)
As to White’s suggestion about insurance fraud, as the court
observed in discussing his malicious prosecution claim against
Schwochow, the law does not require investigating officers to
exhaust every possible lead during an investigation.
848 F.3d at 254.
It is sufficient if the officers investigate and
establish facts that link a suspect to a crime.
Hampshire did investigate the possibility that Scott’s Tractor was
engaged in insurance fraud.
(Doc. 140-2 at 45:17-47:16.)
discussed the possibility with Coates and Denny, contacted the
attorney who declined to prosecute.
This is far from
ignoring exculpatory evidence that can negate probable cause.
Clipper v. Takoma Park, Md., 876 F.2d 17, 19-20 (4th Cir. 1989)
(affirming a jury award on a § 1983 unlawful arrest claim after
plaintiff was misidentified as a bank robber when police failed to
pursue multiple leads, including reviewing photographs of the
officer’s] failure to investigate the leads that Clipper provided
was, in itself, sufficient to negate probable cause”). 38
Clipper is the lone case White cites for the proposition that a failure
to investigate, when combined with other factors, can negate probable
cause. (Doc. 151 at 7.) This is true so far as it goes. However, this
court distinguished that case more fully in its prior opinion:
In Clipper, law enforcement mis-identified plaintiff as a
bank robber based on a witness description and the fact that
an accomplice was the plaintiff’s son-in-law who used a car
As to White’s final point, as the court previously stated,
“[e]ven excising [this] statement . . . probable cause still
existed for the warrant” for the reasons discussed at length
White, 408 F. Supp. 3d at 698.
In sum: It is undisputed that White sold the Terrys a lawn
mower that had been reported stolen.
The theft occurred on the
night of August 21 from Scott’s Tractor in Reidsville, and White
purchased the mower three days later and sold it on September 19.
When requested by the Terrys, White falsely provided a VIN that
did not match the mower he sold to them but in fact matched a mower
that had been sold in New York several days prior.
also substantial inconsistencies in White’s stories about the sale
with the Terrys, including who White purchased the mower from, and
registered to plaintiff.
However, the only officer who
observed the robbery failed to make a positive identification
to the arresting officer, and police failed to pursue and
follow up on multiple leads, including reviewing the bank
video of the robbery, that, taken together, provided ample
evidence that plaintiff was not the robber.
Circuit upheld the jury’s verdict, on a deferential
sufficiency of evidence standard, finding the police had
violated plaintiff's due process rights. Id. at 19 n.*. In
so doing, however, the court was careful to say that it “would
not suggest that [officer] Starkey’s failure to investigate
the leads that Clipper provided was, in itself, sufficient to
negate probable cause.” Id. at 20.
White, 408 F. Supp. 3d at 710–11. The court repeats its conclusion on
the facts as they related to the Reidsville Defendants at this juncture:
“Here, by contrast, there was ample probable cause to support the arrest
warrant that White knowingly possessed a stolen mower and sold it under
the false pretense that it was his. The search warrant affidavit,
including the information provided by the Terrys, provided probable
cause.” Id. at 711.
demonstrably false statements about why he was selling and how
long the mower had been used.
White further never provided a bill
of sale despite the Terrys’ several requests and despite claiming
to provide a VIN from a bill of sale.
White, a police officer,
did not report the mower as stolen when the Terrys alerted him to
The location where White claimed he purchased the
mower, in a retailer’s parking lot, was not large enough for the
sale he described, and the retailer, who Hampshire interviewed,
stated he would never have permitted such a sale.
Strickland, who was under investigation by the SBI and BPD for a
similar theft of John Deere equipment in Burlington.
incriminating facts provide more than ample probable cause to
support White’s arrest and the search of his residence for evidence
that he knowingly possessed a stolen mower and sold it under false
Because there was probable cause to support the Reidsville
Defendants’ investigation, White cannot establish a violation of
liability under § 1983.
The Reidsville Defendants’ motion for
summary judgment as to this claim will therefore be granted.
Section 1983 Individual Capacity Claims
White next alleges that Hampshire and Coates, acting in their
Amendment rights. 39
(Doc. 81 ¶¶ 146-158.)
White does not make clear the nature of the constitutional
violations he alleges occurred.
He captions this cause of action
“violation of 1983” but, as Defendants correctly point out (Doc.
140 at 17), “Section 1983 is not itself a source of substantive
rights, but merely provides a method for vindicating federal rights
elsewhere conferred.” Albright v. Oliver, 510 U.S. 266, 271 (1994)
(quotations and citation omitted).
White also makes numerous
references to “RPD policies and [North Carolina] statutes,” (e.g.,
Doc. 81 ¶ 149), but § 1983 is generally limited to vindicating
federal rights, not state and local policies.
See Lugar v.
Edmondson Oil Co., 457 U.S. 922, 924 (1982) (Section 1983 “provides
a remedy for deprivations of rights secured by the Constitution
and laws of the United States”) (emphasis added); Collins v. City
of Harker Heights, Tex., 503 U.S. 115, 119 (1992) (Section 1983
“does not provide a remedy for abuses that do not violate federal
The parties appear to interpret this claim as a violation of
White’s Fourth and Fourteenth Amendment rights stemming from an
allegedly unlawful search without probable cause, in part based on
the allegation that Hampshire, as approved by Coates, improperly
As with his official capacity § 1983 claims, White’s Fifth Amendment
due process claims will be construed as Fourteenth Amendment due process
included in his search warrant application the misrepresentation
that White admitted to stealing the mower.
(Docs. 81 ¶ 154; 140
at 27; 151 at 12.)
However, even viewing the facts in the light most favorable
to White and assuming Hampshire intentionally or recklessly misled
meeting, 40 that fact would not establish a constitutional violation
so long as probable cause otherwise existed for the search of
See Miller, 475 F.3d at 630–31 (construing Franks
v. Delaware, 438 U.S. 154 (1978), and concluding: “An investigation
need not be perfect, but an officer who intentionally or recklessly
puts lies before a magistrate, or hides facts from him, violates
the Constitution unless the untainted facts themselves provide
For reasons discussed at length in addressing
the official capacity § 1983 claims, the court finds that probable
cause existed for the search warrant even without the misleading
Seeing no other apparent basis for a § 1983 claim, the
court will grant the Reidsville Defendants’ motion for summary
White names Hampshire and the City of Reidsville in his
Both Hampshire and Denny continue to contend that they both construed
White’s statement as admitting he knew the mower was stolen.
140-2 at 38:1-3, 42:16-43:7; 140-8 at 171:12-172:22.)
malicious prosecution claim.
(Doc. 81 ¶¶ 183-93.)
White has indicated in the case caption that the Defendants
are sued in both their individual and official capacities, and he
seeks compensatory and punitive damages.
So, as it did in its
prior opinion regarding other Defendants, the court construes
White to have sued Hampshire in both his official and individual
See White, 408 F. Supp. 3d at 695-96.
An official-capacity state-law claim against an individual
officer, however, is construed as a claim against the municipality
and is subject to the same jurisdictional rules as the suit against
the governmental entity.
See Meyer v. Walls, 489 S.E.2d 880, 888
(N.C. 1997); Mullis v. Sechrest, 495 S.E.2d 721, 725 (N.C. 1998)
(“[O]fficial-capacity suits are merely another way of pleading an
governmental entity enjoys sovereign immunity and cannot be sued,
the state tort claims against the officers named in their official
capacities must likewise be dismissed.
Generally, a municipality
“is immune from torts committed by an employee carrying out a
governmental function” unless the municipality waives its immunity
by purchasing liability insurance.
Turner v. City of Greenville,
677 S.E.2d 480, 483 (N.C. Ct. App. 2009) (quotations omitted); see
also N.C. Gen. Stat. § 153A-435(a).
White has alleged that the
City of Reidsville has purchased liability insurance such that it
has waived sovereign immunity.
(Doc. 81 ¶ 29.)
The City of
Reidsville has not contested this assertion, for example, by
providing its insurance policy.
So the court will proceed to the
merits of White’s claim.
White’s malicious prosecution claim against the Reidsville
Defendants is subject to the same legal analysis as that described
previously for the same claim against the Greensboro Defendants,
and will not be repeated here.
An essential element of a malicious
prosecution claim is a want of probable cause, i.e., White must
criminal proceeding against White that lacked probable cause.
Moore, 476 S.E.2d at 421.
For reasons given above in addressing
White’s § 1983 claims, the court finds that probable cause existed
to support these Defendants’ search of White’s residence during
the investigation for felony charges of possession of stolen goods
and obtaining property under false pretenses. Therefore, the court
will grant the Reidsville Defendants’ motion for summary judgment
as to White’s malicious prosecution claim.
White’s trespass claim against Hampshire and the City of
Reidsville is based on Hampshire’s entry into White’s garage while
attempting to conduct the knock and talk with GCSO Detective
Wilkins on November 2, 2016.
(Doc. 81 ¶¶ 210-217.)
The Reidsville Defendants state, “Plaintiff does not specify
whether his trespass claim is brought against Sgt. Hampshire in
individual capacity claim.
(Doc. 140 at 34.)
However, as noted
previously, the court construes White to have sued Hampshire in
both his official and individual capacities.
Further, in his
response White reaffirms that he is suing each Reidsville Defendant
in their individual and official capacities.
(Doc. 151 at 1.)
Because a suit against an official in his official capacity is
considered a suit against the municipality, see Meyer, 489 S.E.2d
at 888, White in effect has alleged trespass claims against the
City of Reidsville and Hampshire in his individual capacity.
As to the individual capacity claim against Hampshire, the
Reidsville Defendants argue that Hampshire is entitled to public
(Doc. 140 at 34-35.)
As discussed, public
malicious; (3) outside of and beyond the scope of his duties; (4)
in bad faith; or (5) willful and deliberate.”
Smith, 608 S.E.2d
“The public immunity doctrine protects public officials
from individual liability for negligence in the performance of
their governmental or discretionary duties.”
Campbell, 576 S.E.2d
Police officers are public officials who “enjoy absolute
immunity from personal liability for their discretionary acts done
without corruption or malice.”
Schlossberg, 540 S.E.2d at 56.
White argues that public official immunity is “generally”
only available to torts alleging mere negligence, and because
trespass is an intentional tort Hampshire is not entitled to public
(Doc. 151 at 16.)
However, North Carolina
courts have applied public official immunity to trespass claims.
See, e.g., Campbell, 576 S.E.2d at 730; Hope v. Hope, 595 S.E.2d
238 (N.C. Ct. App. 2004) (trespass to the person); Lineberger v.
Yang, No. 514CV137, 2016 WL 5928816, at *8 (W.D.N.C. Oct. 11, 2016)
(interpreting North Carolina law and concluding, “The doctrine of
Carolina courts are split on whether public official immunity
applies to intentional torts and generally hold that the immunity
does not apply only in those intentional torts where “malice
Maney v. Fealy, 69 F. Supp. 3d 553, 564-65
This reading of the case law in North Carolina
reconciles the fact that North Carolina courts at times do apply
public official immunity to intentional torts and squares that
fact with the underlying justification for the doctrine: “As long
as a public officer lawfully exercises the judgment and discretion
with which he is invested by virtue of his office, keeps within
the scope of his official authority, and acts without malice or
corruption, he is protected from liability.”
Smith v. State, 222
S.E.2d 412, 430 (N.C. 1976).
maliciousness or corruption” by Hampshire.
See Campbell, 576
S.E.2d at 730.
The complaint does not allege any corrupt or
And the most that White argues is that this
trespass is “part and parcel” of White’s malicious prosecution
(Doc. 151 at 16.)
However, for the reasons given, the
court is dismissing that claim because Hampshire had probable cause
to obtain a warrant to search White’s house as part of his
investigation into the theft of the lawn mowers. “Mere allegations
of malice without more are insufficient to overcome a motion for
Hope, 595 S.E.2d at 238 (citation omitted).
maliciously in entering White’s open garage door and knocking on
the house door while attempting to conduct an otherwise lawful
knock and talk.
Accordingly, the court finds that Hampshire is
entitled to public official immunity, and Defendants’ motion will
be granted as to White’s trespass claim again Hampshire in his
As to the trespass claim against the City of Reidsville,
because White contends that the City of Reidsville has waived
assertion, the court will proceed to its merits.
North Carolina courts have upheld the use of knock and talks
as an appropriate investigative tool.
“Law enforcement officers
implicitly permit public access in order to conduct ‘knock and
State v. Welch, 803 S.E.2d 871 (N.C. Ct.
App. 2017) (citing State v. Grice, 767 S.E.2d 312, 317 (N.C.
During a knock and talk, the officer “is permitted to
approach any door that a ‘reasonably respectful citizen unfamiliar
with the home’ would believe appropriate.”
Id. (quoting State v.
Huddy, 799 S.E.2d 650, 654 (N.C. Ct. App. 2017) (citing Florida v.
Jardines, 569 U.S. 1, 8 n.2 (2013)).
Here, White raises no issue with Hampshire’s approach to the
front door of his house to conduct the knock and talk.
799 S.E.2d at 654 (“[O]fficers are permitted to approach the front
door of a home, knock, and engage in consensual conversation with
Put another way, law enforcement may do what
occupants of a home implicitly permit anyone to do, which is
‘approach the home by the front path, knock promptly, wait briefly
to be received, and then (absent invitation to linger longer)
leave.’”) (quoting Jardines, 569 U.S. at 8) (citation omitted).
White does contend that Hampshire trespassed in entering his
On this record, there is at least a disputed question of
fact as to whether a “reasonably respectful citizen unfamiliar
with the home” would believe it appropriate, upon no answer at the
front door, to walk through White’s open garage door and knock on
an interior door.
Cf. Grice, 767 S.E.2d at 314-15 (officers could
lawfully approach and knock on side door when front door was
inaccessible, covered with plastic, and obscured by furniture).
The closest example Defendants cite is Welch, an unpublished
opinion by the North Carolina Court of Appeals that upheld an
officer’s knocking on a door inside an open garage bay.
803 S.E.2d at 871.
But in that case, the officer had reason to
believe the occupant of the home had just arrived and had himself
accessed the home through that same door.
Further, as an
unpublished state appeals court case, Welch is not controlling
authority, see State v. Mabry, 720 S.E.2d 697, 702 (N.C. Ct. App.
2011), and this court “should not create or expand a state’s public
policy” in predicting how North Carolina courts would ultimately
decide this issue, see Time Warner, 506 F.3d at 314 (alterations
Hampshire says he entered the garage to knock on the door to
the house because he noticed cobwebs on the front door, in his
experience many people use a side door as their normal means of
entry, and he observed a “clear path to the door” inside the
(Doc. 140-2 at 79:18-80:5.)
According to the Whites,
they not ordinarily use the garage door to enter or exit their
(Docs. 151-1 at 110:23-24; 151-2 at 77:3-6.)
door that Hampshire entered did not face the street; it faced to
the side, away from the front door.
Doc. 140-12 at 3.)
(Doc. 140-2 at 78:5-11; see
While it is unclear how far back into the
garage the door to the house was, it was at least several feet
back and Hampshire had to pass “a lot of things” laying on the
garage floor to access the door.
(Doc. 140-2 at 82:23-83:13.)
Again, there is at least a genuine dispute, on the facts of
this case, as to whether a reasonable officer would believe it
Accordingly, the court will deny the motion for summary judgment
as to White’s trespass claim against the City of Reidsville.
Campbell, 576 S.E.2d at 729 (“If there are genuine issues of
reasonableness under the circumstances, summary judgment is not
appropriate, and the issue must be reserved for trial.”) (citation
North Carolina Constitutional Violations
“violated [his] rights under the North Carolina Constitution.”
(Doc. 81 ¶ 248.)
Specifically, he alleges that the City of
Article 1 § 19 by depriving him of his liberty and property,
statements, and causing search warrants to be issued based on false
The criminal cases the Reidsville Defendants rely on are
distinguishable, as the trial court is obliged to find certain facts by
a preponderance of evidence before making the legal determination whether
an officer’s conduct was reasonable under the Fourth Amendment.
Huddy, 799 S.E.2d at 654; United States v. Adkinson, 191 F. Supp. 3d
565, 568 (E.D. Va. 2016) (“In deciding a motion to suppress, the district
court is empowered to make findings of fact, and conclusions of law.”)
(Id. ¶ 249.)
He also alleges that Reidsville and
Hampshire violated his rights under Article I, § 27 by requiring
(Id. ¶ 252.)
“[A] direct cause of action under the State Constitution is
permitted only ‘in the absence of an adequate state remedy.’”
Davis v. Town of S. Pines, 449 S.E.2d 240, 247 (N.C. Ct. App. 1994)
(quoting Corum v. Univ. of N.C. ex rel. Bd. of Governors, 413
S.E.2d 276, 289 (N.C. 1992)).
Thus, the availability of a direct
cause of action under the North Carolina Constitution depends on
the injury White seeks to be remedied, and whether a state-law
claim is available to him.
Notably, an adequate state remedy
refers to the “possibility of relief,” and it is not necessary
that a plaintiff prevail on his other state-law claims.
rel. Craig v. New Hanover Cnty. Bd. of Educ., 678 S.E.2d 351, 355
Furthermore, “the affirmative defense of public
inadequate” for purposes of this consideration.
DeBaun v. Kuszaj,
767 S.E.2d 353, 357 (N.C. Ct. App. 2014).
Defendants for his injuries: malicious prosecution and trespass,
and conspiracy to commit the same.
Accordingly, White has an
adequate state remedy for the injuries he has suffered. Therefore,
his claims under the North Carolina Constitution against the
Reidsville Defendants will be dismissed.
See White, 408 F. Supp.
3d at 715 (dismissing the same North Carolina Constitution claims
against the Burlington Defendants because White had had an adequate
3644706, at *6 (E.D.N.C. July 22, 2014) (dismissing claims brought
under Article I, §§ 19 and 27 of the North Carolina Constitution
where plaintiff had adequate state remedies even though the statelaw claims were also dismissed).
Finally, White brings the same civil conspiracy claim against
the Reidsville Defendants as he does against the other Defendants.
Reidsville Defendants, “entered into an agreement and conspiracy
whereby they would prosecute Plaintiff for charges that lacked
probable cause” because they either held “personal ill will towards
Plaintiff” or “desired to advance their careers at all costs.”
(Doc. 81 ¶¶ 256-57.)
As discussed in addressing this same claim against the other
insufficient to impose civil liability, the Defendants subject to
a conspiracy claim must also have caused an injury pursuant to a
wrongful act in furtherance of the conspiracy. See Krawiec, 811
S.E.2d at 550-51.
Thus, the claims the court considers when
analyzing White’s conspiracy claims are the state claims that
survive Defendants’ motion for summary judgment.
Here, the only
remaining claim is a trespass claim against the City of Reidsville.
But under North Carolina law, municipalities cannot ordinarily be
a party to a conspiracy.
See White, 408 F. Supp. 3d at 715-16
(citing Houpe v. City of Statesville, 497 S.E.2d 82, 93–94 (N.C.
Ct. App. 1998)). For that reason, White’s conspiracy claim against
the City of Reidsville will be dismissed.
See id. at 716 & n.30
(dismissing conspiracy claim against City of Burlington and noting
that the City of Reidsville would likely benefit from the same
analysis). Because there are no remaining state-law claims against
against Hampshire and Coates will also be dismissed. 42
City of Burlington
Defendant City of Burlington moves for summary judgment as to
the sole remaining claim against it -- a North Carolina state-law
The gist of this claim is that BPD Officer
Victoria Underwood was unlawfully present during the March 6 search
of White’s home.
(Doc. 127-14 ¶¶ 5-6.)
Burlington argues that
this remaining claim is barred by the doctrine of governmental
(Doc. 127 at 9-12.)
White responds that “he does not
intend to file a response to the motion for summary judgment filed
As with the other Defendants, White has also not come forward with any
evidence for his allegations that the Reidsville Defendants pursued
charges against him due to “personal ill will” or out of a “desire to
advance their careers at all costs.” (Doc. 81 ¶ 256.)
While the court
can regard White to have conceded the issue, a review of the record
“In North Carolina, governmental immunity serves to protect
a municipality . . . from suits arising from torts committed while
the officers or employees are performing a governmental function.”
Schlossberg, 540 S.E.2d at 52.
Law enforcement is a governmental
This immunity is absolute unless a municipality
has consented to being sued or has otherwise waived its immunity.
A city may waive its governmental immunity by purchasing
liability insurance, but waiver is only to the extent that the
city is indemnified by its purchase of insurance.
Id. at 53; N.C.
Gen. Stat. § 160A-485(a).
Here, the undisputed facts show that Underwood was acting in
her official capacity as a law enforcement officer when she was
present during the search of White’s house, and her actions thereby
insurance policy during the relevant time states that it “applies
to the tort liability . . .
only to the extent that such tort
liability is not subject to any defense of governmental immunity
under North Carolina law” and the purchase of the policy “is not
a waiver, under North Carolina General Statutes Section 160A-485
amendments to those sections, of any governmental immunity that
would be available to any insured had you not purchased this
(Docs. 127-16 ¶¶ 9-10; 127-17 at 16.)
Accordingly, because the City of Burlington has not waived
its governmental immunity, that immunity serves to bar White’s
trespass claim against it.
The court will therefore grant the
City of Burlington’s unopposed motion for summary judgment.
For the reasons stated, White’s federal complaint -- which
alleged 17 causes of action against 24 defendants across four law
enforcement agencies – now proceeds as to only three state-law
trespass claims: against Stalls, the City of Reidsville, and the
Greensboro Search Officers.
IT IS THEREFORE ORDERED that the pending motions are GRANTED
IN PART and DENIED IN PART as follows:
testimony or evidence (Doc. 117) is GRANTED IN PART AND DENIED IN
PART, subject to Defendants’ right to challenge any proposed
testimony at a later date. White will be permitted the opportunity
to file an expert report for Anita Holder within 30 days in
compliance with the limitations set forth herein, after which
Defendants will have 45 days from the service of the report to
depose and/or challenge her proposed testimony.
Defendant James Hinson, Jr.’s motion to seal (Doc.
105) is DENIED.
Docket Entry 103-6 is unsealed.
Hinson has 20
days to withdraw Docket Entry 103-5 and his pending motion to seal,
otherwise, Docket Entry 103-5 will also be unsealed.
Defendant Guilford County Sheriff’s Office’s motion
to seal (Doc. 130) is DENIED.
Defendant Greensboro Police Department’s motion to
seal (Doc. 138) is GRANTED.
Plaintiff William Z. White’s motion to seal (Doc.
153) is DENIED.
Defendant Guilford County Sheriff’s Office’s motion
for summary judgment (Doc. 128) is DENIED as to the state-law
trespass claim against Defendant James Stalls (Tenth Cause of
Action), but is otherwise GRANTED as to all other remaining claims,
which are DISMISSED WITH PREJUDICT.
Defendant Greensboro Police Department’s motion for
summary judgment (Doc. 136) is DENIED as to the state-law trespass
claim against Defendants Raines, Barham, Williamson, Lowe, Sigmon,
Schwochow, and Albert (Eleventh Cause of Action), but is otherwise
GRANTED as to all other remaining claims, which are DISMISSED WITH
Defendant James Hinson, Jr.’s motion for summary
judgment (Doc. 102) is GRANTED, and White’s § 1983 unconstitutional
seizure claim against him is DISMISSED WITH PREJUDICE.
Defendant Reidsville Police Department’s motion for
summary judgment (Doc. 131) is DENIED as to the state-law trespass
claim against the City of Reidsville (Twelfth Cause of Action),
but is otherwise GRANTED as to all other remaining claims, which
are DISMISSED WITH PREJUDICE.
Defendant City of Burlington’s motion for summary
judgment (Doc. 126) is GRANTED, and White’s state-law trespass
claim against it is DISMISSED WITH PREJUDICE.
Thomas D. Schroeder
United States District Judge
March 31, 2021
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