WHITE v. THE CITY OF GREENSBORO et al

Filing 160

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,
Plaintiff,
v.
THE CITY OF GREENSBORO, et al.,
Defendants.

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1:18CV969

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
case

alleging

Carolina

law

numerous

violations

against

multiple

of

both

federal

Defendants

across

and
four

North
law

enforcement agencies.
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
Department

(“RPD”)

--

Chief

Robert

Hassell,

Lynwood

Hampshire, and Shannon Coates (“Reidsville Defendants”) (Doc.
131);
•

City of Burlington (Doc. 126).
White responded to each motion (Docs. 111, 149-152), and

Defendants filed reply briefs (Docs. 112, 156, 157, 159).

Also

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,
143).

For the reasons set forth below, the motions will be granted

in part and denied in part.
I.

BACKGROUND
A.

Facts

The facts presented, taken in the light most favorable to
White as the non-moving party, show the following:
1.

Theft of Lawn Mowers and Investigation

White was a police officer for the GPD from April 2009 until

2

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.

(Doc. 140-1.)

RPD Lieutenant Shannon Coates responded to the report and assigned
RPD Sergeant Lynwood Hampshire to investigate.
at 16:16-20.)

(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.
20:25-21:7.)

(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.)

(Doc.

(Doc. 128-

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
number.
1

3

with

serialized

purchase.

information

from

the

seller

at

the

time

of

(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
detectives

from

local

jurisdictions

that

meets

to

share

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

24:17-22.)
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
Sunday dinners.

(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.”

2

4

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-

83:17.)
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.)

As they

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.)

(Id.

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.
3

5

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

Several

days later, Stalls checked the mower’s model number against a
police database.

(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.)

Stalls then

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
original):
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?
And yes…its
beautiful
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
residential
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

4

6

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
stolen mower.

(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.
24.)

On

(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.
25.)

(Doc. 151-1 at 50:13-

White gave the Terrys a bill of sale that he signed “Bill

White.”

(Doc. 140-6 at 2.)

The next day, September 20, the Terrys developed some concerns
with the mower.
hours.

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.”

(Id.)

Second, the Terrys were unable to locate

the serial number for the mower.
7

(Doc. 140-10 at 4-6.)

In the

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.)

The Terrys

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
given them.

(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.

(Id.)

The same dealer also told the

Terrys that John Deere also attaches the serial number beneath the
mower.

(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.)

The mower’s
The Terrys

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
been sold.

(Doc. 128-8 ¶ 17.)

At this point the Terrys contacted White to request a refund.
8

(Id. ¶ 18.)

White responded that he had already spent the Terrys’

money to pay other debts.

(Id.; Doc. 140-10 at 9.)

The Terrys

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.

(Id.;

It is not fully clear which VIN Deputy Lilje ran. His report lists
the VIN as 1TC915BAAET020866.
(Doc. 140-5 at 1.)
This number
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
database.
(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.
5

9

Doc. 128-7 ¶¶ 3, 10.)

The Terrys did so and eventually spoke to

Hampshire, who was investigating the Scott’s Tractor theft, on
October 7.

(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
White’s house.

(Id. at 2.)

Wilkins had been directed by his

supervisor to accompany Hampshire.

(Doc. 128-7 ¶ 12.)

Upon

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
answered.

(Id. at 79:18-80:14.)

Hampshire left his business card

on the door inside the garage and left.

(Id. at 80:14.)

During

this time, Wilkins stayed on the driveway and did not enter the
garage.

(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

77:3-6.)
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.)

(Docs.

He later spoke with

Coates, his supervisor, who advised him to contact the North
Carolina

State

Bureau

of

Investigation
10

(“SBI”)

and

GPD’s

Professional Standards Division.

(Doc. 140-2 at 18:3-9.)

The SBI

was contacted because it is standard practice for the SBI to be
involved when a police officer is the suspect in an investigation.
(Doc.

140-8

at

170:5-171:3.)

Hampshire

contacted

SBI

Destinie Denny, who had worked with the RPD in the past.

Agent

(Id. at

21:15-22:10.)
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.

Wilkins

(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
mower.

(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
hours).

(Docs. 140-2 at 28:10-16; 140-6 at 1.)

On November 9, Hampshire and Denny interviewed White at the
RPD offices.

(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
inside.

(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.
11

(Id. at 38:14-23.)

According

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-

14.)
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
mowers.

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.

In

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.
4.)

(Docs. 140-2 at 51:24-53:1; 140-3 at 3-

The mower was then re-sold, although the owners of Scott’s

Tractor
proceeds

admitted
based

on

to

having

the

already

original

collected

theft.

(Doc.

the

insurance

140-3

at

4.)

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
of Insurance.
2.

(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
12

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.)

Westmoreland learned

that Strickland was a sworn officer with High Point Parks and
Recreation and was previously a GPD police officer.
¶ 12.)

(Doc. 127-13

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
Agent

Denny

was

working

on

a

similar

case

--

the

investigation into the theft of mowers from Scott’s Tractor.

RPD’s
(Id.

¶¶ 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
6

13

Ultimately, the SBI decided to execute search and arrest warrants
for Strickland and White at the same time. 7
3.

(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.
12.)

The

warrant

application

listed

the

(Doc. 140-

following

facts

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.)
7

14

•

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
such sales.

(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.”

(Id.)

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.)

The investigating

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.

8

15

Professional Standards Division was also investigating White’s
possible involvement in the mower thefts.

(Id. ¶ 6.)

Scott agreed

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.)

Hampshire had

prepared an operations plan, which was reviewed by his supervisor
Coates, outlining the execution of the search warrants.

(Docs.

140-2 at 89:19-23; 139.)
Later

that

headquarters.
immediately.

morning,

Scott

met

White
with

(Doc. 103-1 ¶ 18.)

arrived

White

and

for

work

fired

him

at

GPD

effective

White was then arrested by Agent

Denny from the SBI and Lieutenant Coates from the RPD, and Coates
handcuffed him.

(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.
9

16

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.)

Deputy

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
Holder.

(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.

They
The

Gator was reported as stolen from Wake County, North Carolina, in
November 2016.

(Doc. 140-13 at 2, 11.)

The officers were unable

to find a VIN for the trailer, which appeared to have been
scratched off.

(Id.)

Both the Gator and trailer were seized and

towed to the RPD impound lot. 10

(Id.)

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.
(Doc. 140-15.)
This is in
addition to property identified as belonging to the GPD, discussed infra.
10

17

any

GPD

equipment

or

property,

Hampshire

was

to

notify

RPD

Lieutenant Coates who would in turn notify the GPD to come to
White’s house to retrieve the property.
at 87:13-23.)

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
occurred.

(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.
79:3-9.)

(Doc.

(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.

(Id.)

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.
4.)

(Id.; Doc. 137-12 at

At this point, Raines went to the living room where Christina
18

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
White’s house.

(Docs. 137-10 at 16; 137-14 at 4.)

Williamson was

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.)

Because

could

it

was

unlikely

a

non-SRT

member

identify

SRT

equipment, Williamson reported to White’s house to identify GPD’s
SRT equipment.

(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.

(Id.)

(Doc. 137-

Raines observed

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.)
19

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
vest.

(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.”

(Doc.

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.

(Id.;

Doc. 137-20 ¶ 5.) Sigmon was Schwochow’s direct supervisor. (Doc.
137-20 ¶ 5.)
equipment

in

Upon their arrival, there were several piles of
White’s

driveway.

(Id.

¶

6.)

Schwochow to make an inventory of the property.

Sigmon

ordered

(Id. ¶ 7.)

At

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.
20

(Doc. 152-1

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,
Schwochow,

and

Albert

(collectively

“the

Greensboro

Search

Officers”).
Barham transported the seized property that the Greensboro
Search

Officers

had

identified

as

GPD

property

from

White’s

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.

(Doc. 140-2

at 95:16-18.)
4.

After the Search

After the March 6 search, the SBI began investigating White
for possession of excessive GPD property.
163:12.)

(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.
21

(Docs. 137-19 at

43:3-14; 137-20 ¶ 12.)
information.

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.
24.)

(Docs. 137-20 ¶ 16; 137-

Schwochow did not make an express determination as to the

existence

of

probable

cause

for

the

crimes

the

SBI

was

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.”

(Doc.

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.)

(Doc.

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.

(Doc.

137-4 at 166:12-19.) On March 23, Denny discussed possible charges
22

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.
(Doc. 137-27.)

Denny did not speak to Schwochow about which

charges, if any, to bring.

(Doc. 137-4 at 169:7-9.)

Schwochow

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.

Ultimately, the

(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.

See

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.

See id.

In

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.
First, her
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
11

23

(“There

is

little

question

that

the

statement

made

by

Sgt.

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.”).
this

decision,

against White.
B.

the

Government

dismissed

the

Following

federal

charges

(Doc. 81 ¶ 98.)

Procedural History

White initiated this action in November 2018 (Doc. 1) and
filed a first amended complaint in December 2018 (Doc. 21).

In

January 2019, Defendants GCSO, Greensboro, and Burlington moved to
dismiss for failure to state a claim upon which relief could be
granted. 12

(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.

(Doc. 80.)

Subsequently, the court granted in

part and denied in part Defendants’ motions to dismiss.

See White

support probable cause for the charges related to the mowers).
See,
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.)
12

24

v. City of Greensboro, 408 F. Supp. 3d 677 (M.D.N.C. 2019).
Discovery proceeded.

The current motions followed and are now

fully briefed and ready for decision.
II.

ANALYSIS
A.

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.

(Doc. 117.)

(Doc. 123.)

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
written report.

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.”
13

25

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.

(Doc. 94.)

On July 30, 2020, White filed

“Plaintiff’s Expert Disclosure,” which identified Holder as an
expert witness.

(Doc. 118-1.)

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.”

(Id.)

Holder states she did not

receive compensation from White for her services as an expert
witness.

(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
for Holder.

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
testimony. 14

14

In construing this provision, courts distinguish

The report requirement also applies if the expert witness is “one

26

between

expert

underlying

witnesses

facts

and

who

were

expert

directly

witnesses

who

involved
were

in

the

retained

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
experts

and

those

experts

who

were

directly

involved

in

the

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.

27

patient and 2) her specialized knowledge and training.

Courts

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
well

as

her

review

of

documents

produced

in

discovery

and

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).
15

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).
16

28

produce[d] pursuant to public records requests.”

(Doc. 118-1.)

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.
distinguishes

Holder

Cf. Stuart, 2014 WL 204214, at *2.
from

both

the

quintessential

This

treating

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
patient’s

treatment

is

not

subject

to

the

written

report

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
litigation”).
White responds that Holder “contemporaneously observ[ed] and
assist[ed]

in

prosecution.”

the

defense

of

(Doc. 123 at 5.)

Plaintiff’s

2017

criminal

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
criminal

prosecution.

There

is
29

no

evidence

that

Holder

had

“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.

As

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
opinion,

she

was

subject

to

Rule

26(a)(2)’s

written

report

requirement.”).
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.

17

30

remedy of reopening discovery for issuance of a report and a
deposition.
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).

The

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
31

prevails

is

subject

to

an

exception

where

‘the

failure

was

substantially justified or is harmless.’” (quoting Fed. R. Civ. P.
37(c)(1))).
White argues that he “reasonably and in good faith believed”
that no report was required for Holder.

(Doc. 123 at 7.)

However,

“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
the court.
to

avoid

litigation

Exclusion and forfeiture are appropriate consequences
repeated
process”

occurrences
(citation

of

such

omitted)).

manipulation
There

are

of
no

the
such

allegations here.
In addition, the balance of relevant factors weighs in White’s
favor.

Holder is White’s sole expert witness, and he argues that
32

“his case will inevitably be weakened” if he cannot offer her
testimony.

(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.

Indeed,

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
exclusion.

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.”
The

cases

Defendants

cite

favoring

exclusion

are

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
33

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
survives

this

court’s

rulings

dismissing

several

claims

and

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

18

See Part II.C.3.

34

(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
to trial).
Defendants argue they may suffer prejudice from reopening
discovery, given the pending summary judgment motions.
at 7.)

(Doc. 143

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.

As

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
19

35

Accordingly,

Defendants’

joint

motion

to

exclude

expert

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.
B.

(Doc. 117.)

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.

White also

(Doc. 108.)

When a party makes a request to seal judicial records, a
district

court

“must

comply

with

certain

substantive

and

procedural requirements.” Va. Dep’t of State Police v. Wash. Post,
386 F.3d 567, 576 (4th Cir. 2004).
(1)

give

the

challenge

the

public
request

notice
to

and

seal;

Procedurally, the court must
a

reasonable

(2)

“consider

opportunity
less

to

drastic

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.

Id.

“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))).

36

the competing interests at stake.”
omitted).
attaches

Id. (quotations and alteration

“While the common law presumption in favor of access
to

all

‘judicial

records

and

documents,’

the

First

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

at 578.
“Where the First Amendment guarantees access . . . access may
be denied only on the basis of a compelling governmental interest,
and

only

interest.”

if

the

denial

is

narrowly

Stone, 855 F.2d at 180.

tailored

to

serve

that

“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
assertion.”).

The public’s right of access “may be abrogated only

in unusual circumstances.”

Stone, 855 F.2d at 182.

Evaluating

whether these “unusual circumstances” exist in a particular case
is a fact-based inquiry conducted in light of the “specific facts

37

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.

(Doc. 105.)

However, these documents are

not necessary to the court’s disposition of Hinson’s motion for
summary judgment.

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
lawsuit.

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

that document.
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.

(Doc. 138.)

In Docket Entry

137-5, the RPD operations plan, GPD has redacted any identifying
38

information not relevant to the matter.
The court finds that these documents should be sealed.

GPD

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
records.”

Alexander v. City of Greensboro, No. 1:09-CV-00293,

2013 WL 6687248, at *5 (M.D.N.C. Dec. 18, 2013).

This protection

extends to completed investigations involving past matters.

See

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
between

active

and

inactive

or

closed

investigations.”)

(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)
(noting

that

investigation

the
records

justifications
from

for

public

excluding

disclosure

--

criminal
including

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.
1984)).
Here,

both

documents

are
39

records

from

a

criminal

investigation conducted by the RPD and SBI, and both contain the
names of several non-party employees and others.

A compelling

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
prohibits

discoverability

of

certain

records,

district

courts

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.

(Doc. 138.)

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
40

testimony.

(Doc. 130.)

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.

(Doc. 153.)

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
does

not

disclose

SBI

investigative

techniques,

informant

identities, or other persons investigated but not charged.

See

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
these provisions.
20

41

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”);
Johnson

v.

City

of

Fayetteville,

No.

5:12-CV-456-F,

2014

WL

7151147, at *11 n.6 (E.D.N.C. Dec. 11, 2014) (denying motion to
seal

police

documents

when

“[t]here

is

no

indication

that

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.

See

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
assertion.”).

Accordingly, the court will deny both GCSO’s and

White’s motions to seal.
C.

(Docs. 130; 153.)

Motions for Summary Judgment
1.

Summary

Standard of Review
judgment

is

appropriate

when

the

pleadings,

affidavits, and other discovery materials show that there is no
42

genuine dispute as to any material fact and the moving party is
entitled

to

judgment

as

a

matter

of

law.

Fed.

R.

Civ.

56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
party

seeking

summary

judgment

bears

the

initial

P.
The

burden

of

demonstrating the absence of a genuine dispute as to any material
fact.

Celotex, 477 U.S. at 323.

initial

burden,

the

“Once the moving party meets its

non-moving

party

may

not

rely

upon

mere

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).

A

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.

Id. at

248–49.
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).
permitted

to

determinations.”

“weigh

the

evidence

or

The court is not

make

credibility

Jacobs v. N.C. Admin. Off. of the Cts., 780 F.3d
43

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.
summary

judgment

motion

Anderson,

Thus, the issue to be determined on a
is

“not

whether

.

.

.

the

evidence

unmistakably favors one side or the other, but whether a fairminded jury could return a verdict for the plaintiff on the
evidence presented.”

Id. at 252.

“If the evidence is merely

colorable, or is not significantly probative, summary judgment may
be granted.”

Id. at 249-50 (citations omitted).

Applying this standard, the court turns to the respective
motions of the Defendants.
2.

GCSO 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.
a.

Defendant Wilkins

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.
21

44

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
concerning

this

claim.

Consequently,

the

court

grants

[the]

motion.”); Tyree v. Bos. Sci. Corp., No. 2:12-CV-08633, 2014 WL
5320569, at *6 (S.D.W. Va. Oct. 17, 2014) (same).
b.

Trespass

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;
and

(3)

damage

to

plaintiff.”

Singleton

v.

Haywood

Elec.

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.)
45

(Docs.

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.)

(See

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.

Jacobs,

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.
Carolina,

the

doctrine

of

public

(Doc. 133 at 21.)

official

immunity

In North
“protects

public officials from individual liability for negligence in the
performance

of

their

governmental

or

discretionary

duties.”

Campbell v. Anderson, 576 S.E.2d 726, 730 (N.C. Ct. App. 2003).
Police officers are public officials who “enjoy absolute immunity
46

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
the claim.

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
function

at

the

time

of

the

accident”).

Here,

for

reasons

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
apply.
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
22

47

c.

Conspiracy

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).

Stalls argues

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.)

(Docs.

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.

48

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.

In

fact, we had never even heard of Deputy Stalls’s name until his
attorney . . . contacted us in September 2020.” 23
¶ 27.)
any

(Doc. 128-8

GCSO Deputies Wilkins and Cook both deny the existence of

conspiracy

against

White,

with

Wilkins

saying

he

“never

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
Stalls

until

May

2017,

and

that

she

never

had

any

direct

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.)
23

49

conversations

with

anyone

investigation into White.

from

the

GCSO

regarding

the

(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
case.

(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
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.
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

(citations omitted).
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.
50

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
and talk.

(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
offered

any

evidence

to

the

contrary.

Another

GSCO

deputy,

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

(Doc. 128-

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.)
24

51

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
claim. 25
d.

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
of

the

lawn

mower.

Specifically,

White

alleges

that

Stalls

“illegally entered [White’s] home and searched his garage without
a warrant in violation of his Fourth Amendment rights.”

(Doc. 81

¶ 141.)
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
false pretenses.
25

52

committed by a person acting under color of state law.”
Atkins, 487 U.S. 42, 48 (1988).

West v.

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

While White

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
wrongful.”

Rossignol v. Voorhaar, 316 F.3d 516, 523 (4th Cir.

2003) (quoting Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40,
50 (1999)).

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.”).
26

53

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)).

This includes

situations in which an officer acts in his official capacity or
while exercising responsibilities pursuant to state law.

Id.

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.’”

Rossignol, 316

F.3d at 523 (quoting Jackson v. Metro. Edison Co., 419 U.S. 345,
351 (1974)).
“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).

Rogers v.

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

Id.

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
54

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
performed.

Revene, 882 F.2d at 872.

Here, too, Stalls’s actions

do not suggest he was acting under color of state law.

Stalls

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
VIN.

(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.

There

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

Cf.

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.
27

55

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
entire incident”).
Perhaps

most

importantly,

Stalls

was

present

in

White’s

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
public

officer

in

other

ways.”

Rossignol,

316

F.3d

at

524

(collecting cases); see also Screws v. United States, 325 U.S. 91,
56

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.)

Perhaps.

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
law.

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.
e.

Sheriff Barnes and Travelers

The sole remaining claim seeks to hold Sheriff Barnes liable
for

Stalls’s

actions

under

a

theory

of

respondeat

superior.

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
57

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.
BDM

Invs.

v.

Lenhil,

(citations omitted).

Inc.,

826

S.E.2d

746,

764

(N.C.

See
2019)

In addition, the employee must have been

operating within the scope of his or her employment at the time of
the incident.

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
and

for

the

employment.”).

purpose
In

of

accomplishing

contrast,

liability

the
is

duties

not

imposed

of
on

his
an

employer when an employee is “engaged in some private matter of
his

own

or

outside

the

legitimate

scope

of

his

employment.”

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
58

within the scope of his employment at the time he entered White’s
garage.

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.
much

in

his

response

And, indeed, White seems to acknowledge as
brief:

in

addressing

whether

Stalls

is

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.)

addressing

merely

this

specific

claim,

White

states

In
that

“[b]ecause Plaintiff’s trespass claim against Defendant Stalls is
not subject to summary judgment, the respondeat superior claim
against

Defendant

Barnes

must

also

survive.” 28

(Id.

at

7.)

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.

Stalls’s actions

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).
28

59

motion for summary judgment as to this claim will be granted.
3.
White

Greensboro Defendants

has

four

remaining

claims

against

the

Greensboro

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.
a.

Trespass

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.”
omitted).
entry.

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
being executed.

(Id.)

They cite no authority that an agency
60

executing a search warrant can give permission to officers from
another agency to enter the property, and the court is not aware
of any.
any

In North Carolina, a search warrant “may be executed by

law-enforcement

officer

acting

within

his

territorial

jurisdiction, whose investigative authority encompasses the crime
or crimes involved.”

N.C. Gen. Stat. § 15A-247.

This would

encompass the GCSO, as White’s house was in Guilford County, and
the SBI, which enjoys statewide jurisdiction, see N.C. Gen. Stat.
§ 143B-917.

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.

Cf.

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.
at 27-28.)

(Doc. 137

“[C]onsent is a defense to a claim of trespass.”

Food

Lion, Inc. v. Cap. Cities/ABC, Inc., 194 F.3d 505, 517 (4th Cir.
1999) (citing Miller v. Brooks, 472 S.E.2d 350, 355 (N.C. Ct. App.
1996)).

GPD Lieutenant Raines says he “approached Plaintiff’s

wife and asked for her consent” and that Christina White “gave her
61

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.
24.)

(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.
18:2-3.)

(Id. at

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
property.
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
right.’”

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
62

privilege under these facts would require an extension of North
Carolina law.

(See Doc. 137 at 28 (“North Carolina appellate

courts do not appear to have addressed a trespass under these
specific facts.”).)

The court declines to do so at this time.

As

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.
2002).

When that court has not spoken directly on an issue, this

court must “predict how that court would rule if presented with
the issue.”

Id.

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
policy.”

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
under

legal

contractual

right”

are

authorization

generally
or

limited

express
63

to

easements.

situations
See,

of

e.g.,

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.)

But

§ 198 by its express terms applies to situations in which the
property “has come upon the land otherwise than with the actor’s
consent.”
property

Restatement (Second) of Torts § 198 (1965). 29
GPD

initially

sought

to

recover

--

and

Here, the

which

could

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
GPD officer.

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
negligence.”

29

64

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
the sign).
Finally, the Greensboro Search Officers argue they enjoy
public official immunity against White’s trespass claim.

(Doc.

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
allege

that

the

Greensboro

Search
65

Officers

were

corrupt,

malicious,

acting

in

bad

faith,

or

acting

willfully

and

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”
any property.

(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
were there.

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.

The

Greensboro Search Officer’s motion for summary judgment as to
White’s trespass claim will therefore be denied.
b.

Causation

The Greensboro Search Officers also argue that, even if they
could

be

liable

for

trespass,

partial

summary

judgment

is

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.

30

66

liable for all damage proximately resulting from his wrongful
entry.’”

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
action.

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
ground.

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.
c.

Conspiracy

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.”

Strickland,

669 S.E.2d at 72. Because a conspiracy claim alone is insufficient
to impose civil liability, the Defendants subject to the claim
67

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.”

Jay

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.
GCSO

Defendants’

motion

for

As discussed in addressing the
summary

judgment,

while

“civil

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
direct

instructions

from

their

superiors. 31

These

officers

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
31

68

generally state that they were not aware that White had been fired
or that a search warrant was being executed until that day.

For

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
warrant.

(Doc. 137-10 at 15.)

In response, White points to two pieces of what he categorizes
as “circumstantial evidence” of a conspiracy.
13.)

(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
the equipment.”

(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.

(Doc.

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.)
Sigmon instructed
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
3.)

69

as

to

whether

any

Greensboro

Search

Officer

entered

into

an

agreement with Hampshire, the RPD, or anyone else to trespass on
White’s property.

Hampshire prepared the operations plans, and it

was reviewed by Coates, his supervisor.

(Id. at 89:19-23.)

There

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.
22.)

(Docs. 137-2 at 2; 137-4 at 84:21-

Nor was anyone present at the start of the search.

Hampshire

applied for the search warrant and was responsible for executing
it.

(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.)

SBI

Agent Denny recalls only asking GPD for White’s work schedule and
keeping Chief Scott up to date on the investigation.
at 73:5-23.)

(Doc. 137-4

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

70

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.
d.

Malicious Prosecution

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,
White

must

show

that

Schwochow

“(1)

instituted,

procured

or

participated in the criminal proceeding against the plaintiff; (2)
without

probable

cause;

(3)

with

malice;

and

proceeding terminated in favor of the plaintiff.”

(4)

the

prior

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.
32

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.)
33

71

omitted).
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
requisite malice.

(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.
Probable

cause

is

circumstances approach.
(N.C. 2014).

determined

by

a

totality

of

the

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.
1994)).

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
72

omitted).
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.)

It

Schwochow was present at

the March 6 search of White’s house at which multiple GPD officers
expressed

their

belief

that

White

appeared

to

have

more

equipment than a typical GPD officer would be assigned.
e.g., Docs. 137-10 at 16-21; 137-14 at 4-5.)

GPD

(See,

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
that equipment.

(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
make up.”

(Doc. 137-23.)

The final case file of his investigation

totaled over 100 pages of notes, inventory, and supplemental
reports from the officers involved.

(Doc. 137-24.)

By time he completed his report, Schwochow would have known
the following:
•

Equipment of the same type as that used by GPD, including
ammunition,

ballistic

vests,
73

a

specialized

bicycle,

and

trauma pates, was found at White’s house in excess of what
White had been issued.
officers

present

(Doc. 137-20 ¶ 19.)

during

the

search

Multiple GPD

believed

this

was

excessive equipment and not likely to be privately purchased.
(See, e.g., Doc. 137-10 at 16-17.)
•

The

equipment

included

GPD-branded

clothing,

as

well

as

ballistic vests with the names of former GPD officers on the
inside.

(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.

(Doc. 137-23.)

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.)

White

steal

had

equipment.

the

opportunity

to

the

excessive

GPD

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.)

74

(Docs. 137-

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
larceny.

(Docs. 137-4 at 166:12-19; 137-27.)

White does not appear to dispute these aspects of Schwochow’s
investigation.

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,
SBI

Agent

Denny

--

could

have

conducted

a

more

thorough

investigation, that does not negate the probable cause established
based

on

the

above

facts.

While

an

officer

cannot

ignore

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,
214

F.3d

535,

541

(4th

Cir.

2000));

see

also

Torchinsky

v.

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
75

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
omitted)).
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.

See McKinney

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
representatives).

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.
34

76

(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
magistrate

provides

additional

indicia

of

the

existence

of

probable cause.”).
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.
35

77

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.
e.

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.

(Doc. 102.)

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
arrest

of

White,

and

that

he

had

sufficient

information

to

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

4-9.)
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.”

White,

408 F. Supp. 3d at 701 (quoting Burrell v. Virginia, 395 F.3d 508,
78

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.
In

its

prior

opinion,

this

court

found

that

the

facts

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
arrest warrant.

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.

Of particular

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
79

setting forth the factual basis for a determination of probable
cause.
was

Id. at 701.

actively

This was not a problem for Westmoreland, who

involved

in

the

investigation

of

White

and

had

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
to him.

Id.

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
warrant.

See id. at 702.

Accordingly, the court denied Hinson’s

motion to dismiss White’s malicious prosecution claim.
The

record

limitations.

is

now

more

developed,

albeit

Id.
with

some

Specifically, it appears that there is no “full

arrest warrant” that would include an affidavit establishing the
factual basis for probable cause.
(“Discovery

has

not

revealed

any

(See Doc. 103 at 20 n.3

magistrate for Plaintiff’s arrest.

affidavit

provided

to

the

Rather, the factual basis for

the arrest likely was presented orally to the magistrate.
the common practice for state crimes.”).)

This is

As such, Hinson relies

on the facts developed in discovery.
The

court

has

already

determined

that

agencies had probable cause to arrest White.

the

investigating

Hinson has now

established that the investigating agents from the RPD and SBI
80

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.)

Accordingly,

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
described.

(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
an

instructing

officer

effectuating an arrest.

or

another

law

enforcement

agency

in

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
81

agent directs a Highway Patrol trooper to effectuate a traffic
stop,

because

“the

officer

with

probable

cause

relayed

the

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.)

(Docs.

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.)

But, while

Defendants

various

with

argue

that

there

are

problems

this

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,
82

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.

However,

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.
4.
White

Reidsville Defendants

has

six

claims

against

the

Reidsville

Defendants:

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
capacities,

maliciously

prosecuted

property, and conspired against him.

him,

trespassed

on

his

Alternatively, he alleges

that the Reidsville Defendants violated his rights under the North
Carolina Constitution.

The claims will be considered in turn.

83

a.

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.)

The Reidsville

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-

41.)
White’s Fourth Amendment claim alleges that the Reidsville
Defendants

“falsely

arrested

Plaintiff

and

provided

false

information that resulted in unreasonable, illegal searches and
seizures of his person and his property.”

(Doc. 81 ¶ 120.)

Apart

from a general reference to a due process violation, White does
not further articulate his Fifth Amendment claim.

(Id.)

As this

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
differ.
process

The court therefore construes White’s Fifth Amendment due
challenges

as

being

brought

Amendment’s due process clause.”
84

under

the

Fourteenth

White, 408 F. Supp. 3d at 691

(citing United States v. Al-Hamdi, 356 F.3d 564, 573 n.11 (4th
Cir. 2004)).
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).
acknowledges

that

his

official

capacity

§

1983

White

claims

are

duplicative of his claim against the City of Reidsville. (Doc. 151
at 5.)
In

It is to that claim the court now turns.
enacting § 1983,

Congress

did

not

intend

to

impose

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
deprivation.

Bd.

of

Cnty.

Comm’rs

of

Bryan

Cnty.,

Okla.

v.

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.

A policy,

practice, or custom for which a municipality may be held liable
85

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
of

law

on

the

part

of

the

constitutional violations.

City

of

Reidsville

to

commit

Indeed, White’s claims arise out of

actions taken against him specifically; he has not alleged or
produced
regularly

any

evidence

engaged

in

that

any

similarly

of

the

unlawful

Reidsville
conduct

as

Defendants
to

other

citizens.
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.”
7.)

Specifically,

White

argues,

“The

(Doc. 151 at 6-

presence

of

Defendant

Hassell, a person with final policymaking authority on behalf of
Defendant

Reidsville,

during

the

unlawful

directly attributable to Defendant Reidsville.”
86

search

should

(Id. at 7.)

be

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

any

other

evidence

that

he

participated

in

the

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
seizure claims).
Probable

cause

to

search

exists

when

there

is

“a

fair

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.
36

87

probability that contraband or evidence of a crime will be found
in a particular place.”
(1983).

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
believing,

in

the

circumstances

committed . . . an offense.”

shown,

that

the

suspect

has

Wilson v. Kittoe, 337 F.3d 392, 398

(4th Cir. 2003) (citation omitted).
“Probable

cause

is

circumstances’ approach.”

determined

by

a

Smith v. Munday, 848 F.3d 248, 253 (4th

Cir. 2017) (quoting Gates, 462 U.S. at 230).
standard.
(en banc).

‘totality-of-the

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.”
Id.

“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.

88

•

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
89

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
it.

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.
at

6-8;

128-8

¶

6.)

In

addition

to

these

(Docs. 140-10

inconsistencies,

Hampshire felt that White was “excruciatingly vague” during their
November 2016 interview about how he purchased the mower.
140-2 at 43:10-24.)

(Doc.

Although the Reidsville Defendants do not

discuss it, Hampshire knew from SBI Agent Denny that White had
frequent

communications

with

Jeffrey

Strickland

in

the

days

surrounding the theft of the mowers from Scott’s Tractor and that
Strickland was under investigation by the SBI and BPD for a similar

90

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.)

Specifically,

White argues that many of the facts that purport to establish
probable cause are either not suspicious or are inconsistent with
the

crimes

with

which

White

was

charged,

that

there

was

a

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
was

evidence

that

insurance fraud.
that

in

his

misleading

Scott’s

Tractor

(Id. at 8-10.)

search

warrant

statements

to

may

been

engaged

in

White also repeats his argument

application

White

have

from

Hampshire

their

attributed

November

9,

2016

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
officers

to

rule

suspicious facts.”

out

a

suspect’s

innocent

explanation

for

See Wesby, 138 S. Ct. at 588 (rejecting such

a “divide-and-conquer approach” to probable cause).

“[T]he fact

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
analysis.
37

91

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
citation omitted).

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
probable cause.

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
discrepancy

negates

probable

cause.

Hampshire

believed

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.)

(Docs. 140-2

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.

(Doc.

140-12 at 8.)
As to White’s suggestion about insurance fraud, as the court
92

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.

See Munday,

It is sufficient if the officers investigate and

establish facts that link a suspect to a crime.

See id.

In fact,

Hampshire did investigate the possibility that Scott’s Tractor was
engaged in insurance fraud.

(Doc. 140-2 at 45:17-47:16.)

He

discussed the possibility with Coates and Denny, contacted the
North

Carolina

investigation,

Department
and

contacted

of

Insurance,

the

which

Rockingham

attorney who declined to prosecute.

(Id.)

opened

County

an

district

This is far from

ignoring exculpatory evidence that can negate probable cause.

Cf.

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
robbery,

while

also

noting,

“We

would

not

suggest

that

[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:
38

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

93

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
already.

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.

There were

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.
The Fourth
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.

94

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
this fact.

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.
relevant

period,

White

had

also

communicated

During the

frequently

with

Strickland, who was under investigation by the SBI and BPD for a
similar theft of John Deere equipment in Burlington.

These highly

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
pretenses.
Because there was probable cause to support the Reidsville
Defendants’ investigation, White cannot establish a violation of
his

constitutional

rights

liability under § 1983.

to

sustain

a

claim

for

municipal

The Reidsville Defendants’ motion for

summary judgment as to this claim will therefore be granted.
b.

Section 1983 Individual Capacity Claims

White next alleges that Hampshire and Coates, acting in their
individual

capacities,

deprived
95

him

of

his

Fourth

and

Fifth

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
law”).
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
claims.
39

96

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
the

magistrate

about

what

White

said

at

their

November

2016

meeting, 40 that fact would not establish a constitutional violation
so long as probable cause otherwise existed for the search of
White’s house.

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
probable cause.”).

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
statement.

Seeing no other apparent basis for a § 1983 claim, the

court will grant the Reidsville Defendants’ motion for summary
judgment.
c.

Malicious Prosecution

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.
(Docs.
140-2 at 38:1-3, 42:16-43:7; 140-8 at 171:12-172:22.)
40

97

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
capacities.

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
action

against

the

governmental

entity.”).

Thus,

if

the

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.)
98

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
show

that

Hampshire

and

the

City

of

Reidsville

instituted

criminal proceeding against White that lacked probable cause.
Moore, 476 S.E.2d at 421.

a

See

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.
d.

Trespass

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
99

his

official

or

individual

individual capacity claim.

capacity”

and

address

(Doc. 140 at 34.)

only

the

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
official immunity.
official

immunity

discretionary

(Doc. 140 at 34-35.)
applies

actions

unless

which

were

the

As discussed, public
official

allegedly:

(1)

“engaged
corrupt;

in
(2)

malicious; (3) outside of and beyond the scope of his duties; (4)
in bad faith; or (5) willful and deliberate.”
at 411.

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.”
at 730.

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”
100

only available to torts alleging mere negligence, and because
trespass is an intentional tort Hampshire is not entitled to public
official immunity.

(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
public

official

trespass,

specifically

malicious

applies

prosecution,

and

to

torts

false

sounding

arrest”).

in

North

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
encompasses intent.”
(M.D.N.C. 2014).

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).
Here,

the

record

is

“devoid
101

of

any

evidence

showing

maliciousness or corruption” by Hampshire.

See Campbell, 576

S.E.2d at 730.

The complaint does not allege any corrupt or

malicious acts.

And the most that White argues is that this

trespass is “part and parcel” of White’s malicious prosecution
claim.

(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
summary judgment.”
There

is

no

Hope, 595 S.E.2d at 238 (citation omitted).

factual

basis

to

conclude

that

Hampshire

acted

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
individual capacity.
As to the trespass claim against the City of Reidsville,
because White contends that the City of Reidsville has waived
sovereign

immunity,

and

Reidsville

has

not

contested

this

assertion, the court will proceed to its merits.
North Carolina courts have upheld the use of knock and talks
as an appropriate investigative tool.
are

permitted

to

travel

wherever
102

“Law enforcement officers

the

occupants

of

the

home

implicitly permit public access in order to conduct ‘knock and
talk’ investigations.”

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.
2015)).

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.

See Huddy,

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
the occupants.

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
garage.

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
103

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.

Welch,

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.

Id.

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
omitted).
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
garage.

(Doc. 140-2 at 79:18-80:5.)

According to the Whites,

they not ordinarily use the garage door to enter or exit their
home.

(Docs. 151-1 at 110:23-24; 151-2 at 77:3-6.)

The garage

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
104

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
appropriate

to

knock

on

the

door

inside

White’s

garage.

Accordingly, the court will deny the motion for summary judgment
as to White’s trespass claim against the City of Reidsville.

See

Campbell, 576 S.E.2d at 729 (“If there are genuine issues of
historical

fact

respecting

the

officer’s

conduct

or

its

reasonableness under the circumstances, summary judgment is not
appropriate, and the issue must be reserved for trial.”) (citation
omitted). 41
e.
White

alleges

North Carolina Constitutional Violations
in

the

alternative

that

all

Defendants

“violated [his] rights under the North Carolina Constitution.”
(Doc. 81 ¶ 248.)
Reidsville,

Specifically, he alleges that the City of

Hampshire,

and

Coates

violated

his

rights

under

Article 1 § 19 by depriving him of his liberty and property,
arresting

him

without

cause

and

with

the

support

of

false

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.
See
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.”)
41

105

statements.

(Id. ¶ 249.)

He also alleges that Reidsville and

Hampshire violated his rights under Article I, § 27 by requiring
excessive bail.

(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.

Craig ex

rel. Craig v. New Hanover Cnty. Bd. of Educ., 678 S.E.2d 351, 355
(N.C. 2009).
official

Furthermore, “the affirmative defense of public

immunity

does

not

render

common

law

inadequate” for purposes of this consideration.

tort

claims

DeBaun v. Kuszaj,

767 S.E.2d 353, 357 (N.C. Ct. App. 2014).
White

has

alleged

state

claims

against

the

Reidsville

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.
106

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
state

remedy);

Jones

v.

Harrison,

No.

4:12-CV-90-D,

2014

WL

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).
f.

Conspiracy

Finally, White brings the same civil conspiracy claim against
the Reidsville Defendants as he does against the other Defendants.
Specifically,

he

alleges

that

all

Defendants,

including

all

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
remaining

Defendants,

because

a

conspiracy

claim

alone

is

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.
107

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
an

individual

Reidsville

Defendant,

White’s

conspiracy

claims

against Hampshire and Coates will also be dismissed. 42
5.

City of Burlington

Defendant City of Burlington moves for summary judgment as to
the sole remaining claim against it -- a North Carolina state-law
claim

for

liability.

civil

trespass

(Doc. 126.)

on

a

respondeat

superior

theory

of

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
immunity.

(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.)

42

108

by

Defendant

City

of

Burlington

sovereign/governmental immunity.”

based

on

its

(Doc. 149.)

defense

[of]

While the court

can regard White to have conceded the issue, a review of the record
confirms

the

appropriateness

of

judgment

for

the

City

of

Burlington.
“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.
function.

Id.

Law enforcement is a governmental

This immunity is absolute unless a municipality

has consented to being sued or has otherwise waived its immunity.
Id.

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
constitute

a

governmental

function.

Further,

Burlington’s

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
109

or

North

Carolina

General

Statute

Section

153A-435

or

any

amendments to those sections, of any governmental immunity that
would be available to any insured had you not purchased this
policy.”

(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.

(Doc.

127.)
III. CONCLUSION
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:
1.

Defendants’

joint

motion

to

exclude

expert

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

110

Defendants will have 45 days from the service of the report to
depose and/or challenge her proposed testimony.
2.

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.
3.

Defendant Guilford County Sheriff’s Office’s motion

to seal (Doc. 130) is DENIED.
4.

Defendant Greensboro Police Department’s motion to

seal (Doc. 138) is GRANTED.
5.

Plaintiff William Z. White’s motion to seal (Doc.

153) is DENIED.
6.

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.
7.

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
PREJUDICE.
8.

Defendant James Hinson, Jr.’s motion for summary
111

judgment (Doc. 102) is GRANTED, and White’s § 1983 unconstitutional
seizure claim against him is DISMISSED WITH PREJUDICE.
9.

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.
10.

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.

/s/
Thomas D. Schroeder
United States District Judge
March 31, 2021

112