Reid v. Scarborough et al

Filing 22

ORDER adopting the Magistrate Judge's 19 Memorandum and Recommendations. Defendants' 14 Motion to Dismiss is GRANTED IN PART and DENIED IN PART as stated herein. Signed by Senior Judge Robert J. Conrad, Jr on 9/24/2024. (brl)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:23-cv-00146-RJC-SCR
THOMAS REID,

)
)
Plaintiff,
)
)
v.
)
)
OFFICER STEVEN SCARBOROUGH, )
in his official and individual capacity, )
and TOWN OF DALLAS,
)
)
Defendants.
)
)

ORDER

THIS MATTER is before the Court on Defendants’ Motion to Dismiss, (Doc.
No. 14), the Magistrate Judge’s Memorandum and Recommendation (“M&R”), (Doc.
No. 19), Defendants’ Objection to the M&R, (Doc. No. 20), and related pleadings. For
the reasons explained below, the Court ADOPTS the M&R and GRANTS in part
and DENIES in part Defendants’ Motion to Dismiss.
I.

BACKGROUND
Neither party has objected to the Magistrate Judge’s statement of the factual

and procedural background of this case. Therefore, the Court adopts the facts as set
forth in the M&R.
II.

STANDARD OF REVIEW
A district court may assign dispositive pretrial matters, including motions to

dismiss, to a magistrate judge for “proposed findings of fact and recommendations.”
28 U.S.C. § 636(b)(1)(A) & (B). The Federal Magistrate Act provides that a district

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court “shall make a de novo determination of those portions of the report or specified
proposed findings or recommendations to which objection is made.” Id. § 636(b)(1)(C);
Fed. R. Civ. P. 72(b)(3). However, “when objections to strictly legal issues are raised
and no factual issues are challenged, de novo review of the record may be dispensed
with.” Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). De novo review is also not
required “when a party makes general and conclusory objections that do not direct
the court to a specific error in the magistrate’s proposed findings and
recommendations.” Id. Likewise, merely reiterating the same arguments made in the
pleadings or motion submitted to the Magistrate Judge does not warrant de novo
review. See United States v. Midgette, 478 F.3d 616, 620–21 (4th Cir. 2007); Durkee
v. C.H. Robinson Worldwide, Inc., 765 F. Supp. 2d 742, 747 (W.D.N.C. 2011), aff’d sub
nom., Durkee v. Geologic Sols., Inc., 502 F. App’x 326 (4th Cir. 2013).
The standard of review for a motion to dismiss is well known. “A motion to
dismiss under Rule 12(b)(6) ‘challenges the legal sufficiency of a complaint,’ including
whether it meets the pleading standard of Rule 8(a)(2).” Fed. Nat’l Mortg. Ass’n v.
Quicksilver LLC, 155 F. Supp. 3d 535, 542 (M.D.N.C. 2015) (quoting Francis v.
Giacomelli, 588 F.3d 186, 192 (4th Cir. 2009)). A complaint attacked under Rule
12(b)(6) will survive if it contains enough factual matter “to state a claim to relief that
is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). An
allegation is facially plausible if it “allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged, but “[t]hreadbare recitals of

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the elements of a cause of action, supported by mere conclusory statements, do not
suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Rule 8(a)(2) requires “a short and plain statement of the claim showing that
the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Specific facts are not
necessary, and the statement need only “give the defendant fair notice of what the
claim is and the grounds upon which it rests.” Twombly, 550 U.S. at 555 (alteration
omitted). Additionally, when ruling on a motion to dismiss, a court must “view the
complaint in a light most favorable to the plaintiff,” Mylan Lab’ys, Inc. v. Matkari, 7
F.3d 1130, 1134 (4th Cir. 1993), accept the complaint’s factual allegations as true,
Erickson v. Pardus, 551 U.S. 89, 94 (2007), and refrain from weighing the facts or
assessing the evidence. Potomac Conf. Corp. of Seventh-Day Adventists v. Takoma
Acad. Alumni Ass’n, Inc., 2 F. Supp. 3d 758, 768 (D. Md. 2014). Nonetheless, a court
is “not bound to accept as true a legal conclusion couched as a factual allegation,”
Papasan v. Allain, 478 U.S. 265, 286 (1986), and though the Court views the facts in
the light most favorable to the plaintiff, a complaint tendering “naked assertions
devoid of further factual enhancement” cannot proceed. Iqbal, 556 U.S. at 678.
III.

DISCUSSION
Under Rule 72(b) of the Federal Rules of Civil Procedure, a district court judge

shall make a de novo determination of any portion of an M&R to which specific
written objection has been made. Defendants object to the M&R on grounds that:
(1) the Magistrate Judge erred in recommending that this Court deny Defendants’
Motion to Dismiss as to Plaintiff’s Fourth Amendment claims against Officer

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Scarborough in his individual capacity and in finding that the Amended Complaint
states factual allegations sufficient to overcome the doctrine of qualified immunity;
(2) the Magistrate Judge erred in recommending that this Court deny Defendants’
Motion to Dismiss as to Plaintiff’s claim for malicious prosecution against Officer
Scarborough and in finding that the Amended Complaint states factual allegations
sufficient to overcome the doctrine of public official immunity as to that claim; and
(3) the Magistrate Judge erred in recommending that this Court deny Defendants’
Motion to Dismiss as to Plaintiff’s state law claims against the Town of Dallas and in
finding that the Amended Complaint states factual allegations sufficient to overcome
the governmental immunity. (Doc. No. 20 at 8–21).
A. Plaintiff’s Fourth Amendment Claims Against Officer Scarborough
in his Individual Capacity
With respect to Plaintiff’s Fourth Amendment claims under theories of false
arrest and malicious prosecution, the Magistrate Judge determined that “[a]dditional
development is needed before the Court can rule as a matter of law whether a
reasonable officer would believe that probable cause existed to arrest Plaintiff under
N.C. Gen. Stat § 14-223.” (Doc. No. 19 at 12). The Magistrate Judge found that “the
Court is unable to determine whether constitutional violations occurred and whether
such alleged violations were clearly established.” (Id. (citing Hupp v. Cook, 931 F.3d
307, 320 (4th Cir. 2019) (finding questions of fact existed on Fourth Amendment false
arrest claim as to whether plaintiff failed to comply with officer’s order to step aside
and noting “[c]learly, there is a dispute as to whether Hupp refused to comply with
Trooper Cook’s orders or was even given the opportunity to comply with them before
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she was arrested mere seconds later”); Adams v. City of Graham, No. 1:22CV906,
2024 WL 888732, at *5–6 (M.D.N.C. Feb. 28, 2024) (recommending denial of motion
to dismiss Fourth Amendment claim without prejudice to be raised again at summary
judgment and noting “Defendant asks the Court to make factual determinations at
odds with what is pleaded in the Complaint in order to conclude that he had probable
cause to believe that disorderly conduct was occurring or about to occur”))).
Defendants, restating arguments already made, object on grounds that “[a]
review of Plaintiff’s Amended Complaint shows that the information known to Officer
Scarborough at the time of Plaintiff’s arrest would lead a reasonable officer to
conclude that probable cause existed to arrest Plaintiff for willful and unlawful
resistance, delay, or obstruction of a public officer.” (Doc. No. 20 at 8). Despite the
Magistrate Judge’s finding that questions of fact preclude the Court from ruling as a
matter of law whether a reasonable officer would believe that probable cause existed
to arrest Plaintiff under N.C. Gen. Stat § 14-223 at this stage, Defendants argue that
the totality of the circumstances known to Officer Scarborough establish that an
objective law enforcement officer reasonably could have believed that probable cause
to arrest Plaintiff existed. (Doc. No. 20 at 10). Defendants cite the following facts in
support of their objection:
•

Officer Scarborough, who was on scene to conduct the investigation
of the automobile accident, was asked to come over and speak to
Plaintiff. (Doc. No. 20 at 11 (citing Doc. No. 13 at ¶14)).

•

At that time, Officer Scarborough directed Plaintiff multiple times to
move over with him to discuss what was happening, which Plaintiff
refused to do. (Id. (citing Doc. No. 13 at ¶¶19-20)).

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•

While Plaintiff asked if he was being detained and if Officer
Scarborough’s direction was “a lawful order,” (Id. (citing Doc. No. 13
at ¶¶20–21)), such questions do not relieve Plaintiff from complying
with Officer Scarborough’s directions. To be sure, the Plaintiff could
have easily posed those questions and discussed the situation with
Officer Scarborough had he moved away with the Officer.

•

Failing to do so impeded the Officer’s ability to remedy the situation
and continue with his investigation. (Id.).

Defendants fail to state a specific objection directing the Court to a specific
error in the Magistrate Judge’s M&R or otherwise rebut its sound reasoning. The
Court agrees with the M&R’s conclusion that further factual development is needed
to evaluate whether a reasonable officer would believe that probable cause existed to
arrest Plaintiff under N.C. Gen. Stat § 14-223. As the M&R correctly notes, “there
are facts in dispute about what actually transpired.” (Doc. No. 19 at 11). For example,
Plaintiff alleges that the Officer did not have probable cause and that the underlying
probable cause finding was based on fraudulent statements. (Id.). Specifically,
Plaintiff contends that contrary to “false allegations,” Plaintiff was never ordered to
leave the scene of the accident by anybody, including officers and emergency
personnel. (Id. (citing Doc. No. 13 ¶¶ 63–66)). The Court agrees that at this early
stage, there is not yet a sufficient record to evaluate whether a reasonable officer
would believe that probable cause existed to arrest Plaintiff under N.C. Gen. Stat §
14-223. Therefore, the Court adopts the M&R’s recommendation to deny Defendants’
Motion to Dismiss as to Plaintiff’s Fourth Amendment false arrest and malicious
prosecution claims without prejudice to be re-raised at a later stage as appropriate.

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B. Plaintiff’s State Law Claim for Malicious Prosecution Against
Officer Scarborough
With respect to Plaintiff’s state law claim for malicious prosecution, the
Magistrate Judge similarly determined that “further development is needed to
determine the facts surrounding Plaintiff’s arrest and prosecution and whether
probable cause existed to initiate and participate in prosecuting Plaintiff under N.C.
Gen. Stat. § 14-223.” (Doc. No. 19 at 23). The Magistrate Judge further concluded
that “additional development is also required to determine if Plaintiff is entitled to
public official immunity on his malicious prosecution claim.” (Id. (citing Hupp, 931
F.3d at 326 (reversing district court’s grant of summary judgment on malicious
prosecution claim based on immunity grounds under West Virginia law where
questions of fact existed as to whether probable caused existed for plaintiff’s arrest
and prosecution))).
Despite the Magistrate Judge’s finding that the issue of public official
immunity in the context of Plaintiff’s state law claim for malicious prosecution is
premature, Defendants object on grounds that “Plaintiff cannot establish lack of
probable cause” and thus, “cannot state a prima facie case of state law malicious
prosecution.” (Doc. No. 20 at 15). Defendants fail to state a specific objection directing
the Court to a specific error in the Magistrate Judge’s M&R or otherwise rebut its
sound reasoning. The Court agrees with the M&R’s conclusion that further factual
development is needed and that the issue of public official immunity is premature.
The Court, therefore, adopts the M&R’s recommendation to deny Defendants’ Motion
to Dismiss as to Plaintiff’s state law claim for malicious prosecution without prejudice
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to be re-raised at a later stage as appropriate.
C. Plaintiff’s State Law Claims Against the Town of Dallas
Plaintiff brings various state law claims against the Town of Dallas for Officer
Scarborough’s actions. With respect to governmental immunity, the Magistrate
Judge found that the “Town is a municipality that is subject to governmental
immunity from claims arising out of its performance of governmental functions.” (Doc
No. 19 at 25). The Magistrate Judge further determined that “Plaintiff’s Complaint
alleges facts arising from police services provided by the Town, which is a
governmental function generally covered by governmental immunity.” (Id.).
The parties’ dispute concerns whether the Town waived its governmental
immunity from the state law tort claims either by participation in a government risk
pool or through the purchase of commercial insurance that will indemnify the Town
and its agents for any judgment against it or its agents named in this action.
Defendants argued that the Town did not waive governmental immunity for the state
law claims because its insurance policy contains non-waiver of immunity provisions.
(Id. (citing Doc. No. 18 at 6–8)). As the Magistrate Judge noted, Defendants attached
to their reply brief a General Liability/Professional Liability insurance policy listing
the Town of Dallas as the insured, effective July 1, 2021 and point to a provision and
condition stating that the Town did not waive governmental immunity through the
purchase of the policy. (Doc. No. 19 at 25–26).
In considering the provision’s applicability to this case, the Magistrate Judge
found that “[w]hile such anti-waiver provisions may be enforceable, that does not end

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the inquiry here.” (Id. at 26). The Magistrate Judge determined that “Plaintiff has
presented sufficient allegations at this stage, and Defendants have not presented all
necessary information that the Town has, in fact, not waived governmental
immunity.” (Id. at 27). For example, the Magistrate Judge noted that Defendants’
insurance policy was not accompanied by any affidavit or other document indicating
its authenticity. (Id. at 26). And the Magistrate Judge observed that it remained
unclear whether the insurance policy provided is the Town’s only insurance policy.
(Id.). The Magistrate Judge further pointed out that Defendants failed to address
Plaintiff’s allegation that the Town participates in a local government risk pool. (Id.
at 26 (citing (Doc. No. 13 ¶ 50); N.C. Gen. Stat. § 160A-485(a) (“Any city is authorized
to waive its immunity from civil liability in tort by the act of purchasing liability
insurance. Participation in a local government risk pool pursuant to Article 23 of
General Statute Chapter 58 shall be deemed to be the purchase of insurance for the
purposes of this section.”); McClure v. Charlotte-Mecklenburg Bd. Of Educ., No. 3:20CV-00005-KDB-DCK, 2022 WL 317641, at *3–4 (W.D.N.C. Feb. 2, 2022) (considering
affidavit submitted by school board’s insurance plan administrator to support
governmental immunity argument and denying motion to dismiss on governmental
immunity grounds where factual issues existed regarding insurance policy and court
was required to construe all reasonable inferences from disputed facts in favor of
plaintiff’s allegations))).
Defendants now object to the M&R on two grounds: (1) that the M&R’s
recommendations do not touch upon the substance of the policy, its anti-waiver

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provision, or its applicability to this case; (2) that no state claims remain against the
Town. (Doc. No. 20 at 17). Both objections lack merit. Contrary to Defendants’
objections, the Magistrate Judge considered the applicable provision of Defendants’
General Liability/Professional Liability insurance policy. In considering the antiwaiver provision and its applicability to this case, the Magistrate Judge correctly
noted that Defendants’ reply brief attaching the insurance policy was not
accompanied by any affidavit or other document indicating its authenticity or
whether the insurance policy is the Town’s only insurance policy. Thus, the
Magistrate Judge determined that “[w]hile such anti-waiver provisions may be
enforceable, that does not end the inquiry here.” (Doc. No. 19 at 26). Accordingly, the
Magistrate Judge recommended that Defendants’ Motion to Dismiss Plaintiff’s state
law claims against the Town be denied without prejudice to be re-raised as
appropriate. (Id. at 29). Given that the Magistrate Judge was unable to determine
from the record the insurance policy’s authenticity, whether it was the Town’s only
applicable insurance policy, or whether the Town participates in a local government
risk pool, the Court agrees that Defendants failed to provide all necessary
information that the Town has, in fact, not waived governmental immunity at this
stage.
The Court acknowledges that Defendants have since filed an affidavit
addressing the concerns identified by the Magistrate Judge. (Doc. No. 20-1). And the
Court observes that Plaintiff now disputes the sufficiency of Defendants’ affidavit in
its Reply to Defendants’ objections. (Doc. No. 21 at 6–8). “In reviewing a magistrate

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judge’s recommendations, a district court may consider new evidence from an
objecting party.” Hornsby v. United States, No. 2:22cv427, 2023 U.S. Dist. LEXIS
224002, at *6 (E.D. Va. Dec. 15, 2023) (citations omitted). “However, attempts to raise
new evidence during a district court’s review of an [M&R] are disfavored.” Id. Here,
Defendants fail to direct the Court to a specific error in the Magistrate Judge’s M&R
or otherwise rebut its sound reasoning. Further, Defendants fail to provide any
justification for their failure to present evidence sufficient to demonstrate that the
Town has not waived governmental immunity to the Magistrate Judge. Accordingly,
considering the record that was before the Magistrate Judge, the Court agrees with
the Magistrate Judge’s recommendation that Defendants’ Motion to Dismiss
Plaintiff’s state law claims against the Town based on governmental immunity be
denied without prejudice to be re-raised at a later stage.
IT IS, THEREFORE, ORDERED that:
1. The Magistrate Judge’s M&R, (Doc. No. 23), is ADOPTED;
2. Defendants’ Motion to Dismiss Plaintiff’s Complaint in Lieu of an Answer,
(Doc. No. 14), is GRANTED IN PART and DENIED IN PART.
3. Defendants’ Motion to Dismiss Plaintiff’s First Amendment claim and
Fourth Amendment excessive force claim against Officer Scarborough
individually is GRANTED;
4. Defendants’ Motion to Dismiss Plaintiff’s Fourth Amendment false arrest
and Fourth Amendment malicious prosecution claims against Officer

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Scarborough individually is DENIED WITHOUT PREJUDICE to be reraised at a later stage in this litigation as appropriate;
5. Defendants’ Motion to Dismiss Plaintiff’s constitutional claims against the
Town is GRANTED;
6. Defendants’ Motion to Dismiss Plaintiff’s state law claims against Officer
Scarborough individually is GRANTED as to all state law claims except
the malicious prosecution and DENIED WITHOUT PREJDUCE to be reraised at a later stage in this litigation as appropriate as to the malicious
prosecution state law claim;
7. Defendants’ Motion to Dismiss Plaintiff’s state law claims against the Town
is DENIED WITHOUT PREJUDCE to be re-raised as appropriate;
8. Defendants’ Motion to Dismiss Plaintiff’s direct claims under the North
Carolina Constitution is GRANTED;
9. Defendants’ Motion to Dismiss Plaintiff’s claims against the Officer
Scarborough in his official capacity is GRANTED.
Signed: September 24, 2024

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