Millsaps v. Iredell County District Attorney's Office et al

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION
CIVIL ACTION NO. 5:22-CV-095-KDB-DCK
THIS MATTER IS BEFORE THE COURT on the “Motion To Dismiss Plaintiff’s
Amended Complaint On Behalf [Of] Defendants Iredell County District Attorney’s Office, Burris,
Kirkland, Iredell County Clerk Of Superior Court, Nixon, John/Jane Does Unknown Employees
Of Clerk’s Office, Mahoney, And John/Jane Does Unknown Employees Of District Attorney’s
Office” (Document No. 21), “Defendants Adam Dillard, Iredell County, Iredell County Sheriff’s
GLENN S. MILLSAPS, JR., )
)
Plaintiff, )
)
v. ) MEMORANDUM AND
) RECOMMENDATION
IREDELL COUNTY DISTRICT
ATTORNEY’S OFFICE; KATHLEEN
BURRIS; SARA KIRKLAND; ADAM
DILLARD; IREDELL COUNTY CLERK
OF SUPERIOR OFFICE; JIM NIXON;
JOHN/JANE DOES, Unknown Employees
of the Iredell County Clerk of Superior
Court; REGINA MAHONEY;
JOHN/JANE DOES, Unknown Employees
of the Iredell County District Attorney’s
Office; WILSON SECURITY SERVICES;
DANNY LILES; PATSY ALLEN;
IREDELL COUNTY; IREDELL
COUNTY SHERIFF’S OFFICE; RON
HILLARD; DARREN CAMPBELL; CITY
OF STATESVILLE; STATESVILLE
POLICE DEPARTMENT; K. JOHNSON;
TOM SOUTHER; JOHN/JANE DOES,
Unknown Employees of the Statesville
Police Department; ERIC GREEN; MATT
CAMPBELL; GARY MYKINSEN; and
JOHN WILLIAMS,
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
Defendants. )
)
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Office, Ron Hillard, Darren Campbell, Eric Green, Matt Campbell, Gary Mykinsen, And John
Williams’ Motion To Dismiss Plaintiff’s Amended Complaint Pursuant To Rule 12(b)(6), And
Rules 12(b)(1), (2), (4) And (5), And Rules 4(c)(1) And 4(m)” (Document No. 24), the “Motion
To Dismiss By Defendants Statesville Police Department, Unknown Employees Of Statesville
Police Department, Officer K. Johnson, Captain Tom Souther, And City Of Statesville”
(Document No. 27), and the “Motion To Dismiss Plaintiff’s Amended Complaint On Behalf Of
Defendants Wilson Security Service, Inc., Patsy Allen And Danny Liles” (Document No. 31).
These motions have been referred to the undersigned Magistrate Judge pursuant to 28 U.S.C.
§636(b) and are now ripe for disposition. Having carefully considered the arguments, the record,
and applicable authority, the undersigned will respectfully recommend that Document No. 21 be
granted, and that the other motions to dismiss be granted in part and denied in part.
I. BACKGROUND
Plaintiff filed his “Complaint” (Document No. 1) on July 19, 2022 in this Court. Notably,
Plaintiff is pro se. On October 11, 2022, Plaintiff filed his “1st Amended Complaint” (Document
No. 3) (“Amended Complaint”) against Defendants Iredell County District Attorney’s Office
(“DA’s Office”), Kathleen Burris (“Burris”), Sara Kirkland (“Kirkland”), Adam Dillard
(“Dillard”), the Iredell County Clerk of Superior Office, Jim Nixon (“Nixon”), unknown
employees of the Iredell County Clerk of Superior Court, Regina Mahoney (“Mahoney”),
unknown employees of the Iredell County District Attorney’s Office, Wilson Security Service,
Danny Liles (“Liles”), Patsy Allen (“Allen”), Iredell County, the Iredell County Sheriff’s Office,
Ron Hillard (“Hillard”), Darren Campbell (“Campbell”), the City of Statesville, the Statesville
Police Department, K. Johnson (“Johnson”), Tom Souther (“Souther”), unknown employees of the
Statesville Police Department, Eric Green (“Green”), Matt Campbell, Gary Mykinsen
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(“Mykinsen”), and John Williams (“Williams”). Plaintiff’s Amended Complaint purports to allege
a variety of claims against various defendants – arising out of his arrest for second-degree trespass
at the Iredell County District Attorney’s Office and the resulting, subsequent criminal trials. See
(Document No. 3). Ultimately, Plaintiff was found not guilty by a jury of second-degree trespass.
Id. at p. 22.
The events giving rise to Plaintiff’s lawsuit began in July 2019 when Plaintiff “called the
Iredell County Clerk of Superior Court about rescheduling a hearing for a seatbelt ticket,” which
Plaintiff had missed. Id. at p. 8. The court employee “told Plaintiff he could not reschedule the
hearing because there was a 24 hour notice to reschedule.” Id. Instead, Plaintiff was directed to
contact the District Attorney’s Office “within [] 20 days.” Id. A few days after calling the
courthouse, on July 19, 2019, Plaintiff “went to the District Attorney’s Office to reschedule a
hearing for the traffic ticket.” Id. An employee at the DA’s Office, Kathleen Burris, “told Plaintiff
because he is not an attorney he was required to either pay the fine or hire an attorney.” Id. Burris
eventually told Plaintiff to leave or she would call security. Id. Plaintiff ultimately left, returning
to the DA’s Office five days later on July 24, 2019. Id.
After again unsuccessfully attempting to reschedule the traffic hearing with Defendant
Burris, “Plaintiff left the DA’s lobby and went to the Justice Hall annex lobby…and approached
[Defendant] Security Guard Danny Liles.” Id. at p. 10. “After a short discussion with Liles,
Plaintiff reentered the DA’s lobby[, and] Liles followed Plaintiff and grabbed him by his arm.” Id.
Liles told Plaintiff to leave or he would get a sheriff involved. Id. “Plaintiff heard Liles tell Patsy
Allen to get Deputy Hillard.” Id. According to Plaintiff’s Amended Complaint, Plaintiff “was
standing in the doorway which separated the DA’s lobby and the Justice hallway of the Annex
building” when Deputy Hillard approached Plaintiff. Id. Hillard and Plaintiff stepped into the
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hallway and had a conversation about what occurred. Id. at p. 11. Thereafter, even though “Hillard
had not spoken to Kathleen Burris nor had Hillard witnessed why he was placing Plaintiff under
arrest,” he arrested Plaintiff. Id. at p. 12.
Hillard apparently did not handcuff Plaintiff correctly, according to Plaintiff, and he
repeatedly told Hillard that he was in pain because “the handcuffs were not positioned correctly
and were not placed on his wrist properly.” Id. Plaintiff allegedly told Hillard to “double lock”
the handcuffs.” Id. Other deputies allegedly arrived, to whom Plaintiff directed the same
complaint about the handcuffs. Id. at p. 13. Plaintiff was put in a patrol car driven by Defendant
Johnson, who “did not inspect the handcuffs.” Id. at p. 14. Plaintiff alleges that he yelled out in
pain, and “Officer Johnson loosened the handcuffs.” Id.
Plaintiff was charged with second-degree trespass and found guilty at a bench trial on
November 5, 2019. Id. at p. 16. After the trial, Plaintiff claims that he “made a public records
request to the Sheriff’s Office for video, audio and or electronics surveillance which would have
depicted Plaintiff.” Id. at p. 18. He goes on to allege that “Adam Dillard falsely stated in a letter
that the recording sought did not exist,” and that the Sheriff’s Office “has no record.” Id. Plaintiff
claims that “on the day of the second trial, [he] was handed a copy of the July 24, 2019 [video]
footage [that he had earlier requested] that allegedly [he had been told] did not exist.” Id. at p. 2.
He claims, though, that the video was missing “24 minutes of footage” but nonetheless “showed
that Plaintiff did not have one foot in the DA’s doorway at the time Deputy Hillard approached
Plaintiff.” Id. Plaintiff contends that had Defendants not “suppressed the footage…the verdict of
the bench trial would have been favorable to Plaintiff and he would not have suffered three trials.”
Id. at p. 21. Ultimately, Plaintiff was found not guilty by a jury of the trespass charge at a third
trial. Id. at p. 1.
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Plaintiff’s Amended Complaint alleges eleven claims against various Defendants: (1) for
a First Amendment violation under 42 U.S.C. § 1983 (“§ 1983”) against all Defendants; (2) for
unlawful arrest and false imprisonment against all Defendants; (3) for Brady violations under §
1983 against all Defendants; (4) for excessive force in violation of the Fourth Amendment for
tight handcuffs under § 1983 against “[a]ll [i]nvolved [l]aw [e]nforcement official[s], and all
involved policy makers”; (5) for malicious prosecution against all Defendants; (6) for abuse of
process against all Defendants; (7) for assault against Defendant Liles; (8) for a Monell claim
against Defendants Johnson, Statesville Police Department, Deputy Hillard, and unknown
deputies; (9) for § 1985 conspiracy to interfere with civil rights against all Defendants; (10) for
fraud against all Defendants; and (11) for “[n]egligence or in the alternative [n]o dep[rivation] of
a liberty interest or privilege but by the law of the land” under the North Carolina Constitution.
See (Document No. 3).
The “Motion To Dismiss Plaintiff’s Amended Complaint On Behalf [Of] Defendants
Iredell County District Attorney’s Office, Burris, Kirkland, Iredell County Clerk Of Superior
Court, Nixon, John/Jane Does Unknown Employees Of Clerk’s Office, Mahoney, And John/Jane
Does Unknown Employees Of District Attorney’s Office” (Document No. 21) was filed March 3,
2023. “Defendants Adam Dillard, Iredell County, Iredell County Sheriff’s Office, Ron Hillard,
Darren Campbell, Eric Green, Matt Campbell, Gary Mykinsen, And John Williams’ Motion To
Dismiss Plaintiff’s Amended Complaint Pursuant To Rule 12(b)(6), And Rules 12(b)(1), (2), (4),
And (5), And Rules 4(c)(1) And 4(m)” (Document No. 24) was filed March 6, 2023. The “Motion
To Dismiss By Defendants Statesville Police Department, Unknown Employees Of Statesville
Police Department, Officer K. Johnson, Captain Tom Souther, And City Of Statesville”
(Document No. 27) was filed March 6, 2023. The “Motion To Dismiss Plaintiff’s Amended
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Complaint On Behalf Of Defendants Wilson Security Service, Inc., Patsy Allen And Danny Liles”
(Document No. 31) was filed March 27, 2023. “Plaintiff’s Opposition To Defendants’ Motions
To Dismiss And Motion For Leave To File Second Amended Complaint” (Document No. 35) was
filed April 12, 2023.1 Defendants Iredell County District Attorney’s Office, Burris, Kirkland,
Iredell County Clerk of Superior Court, Nixon, John/Jane Does Unknown Employees of Clerk’s
Office, and John/Jane Does Unknown Employees of the Iredell County District Attorney’s Office
filed a “Notice Of Non-Reply To Plaintiff’s Response To Defendant’s Motion To Dismiss”
(Document No. 40) on April 19, 2023. “Defendant Statesville Police Department, Unknown
Employees Of Statesville Police Department, Officer K. Johnson, Captain Tom Souther, And[]
City Of Statesville’s Notice Of No Reply To Plaintiff’s Response In Opposition To Defendants’
Motion To Dismiss” (Document No. 44) was filed April 28, 2023. Defendants Wilson Security
Services, Inc., Patsy Allen, and Danny Liles filed their “Notice Of Non-Reply To Plaintiff’s
Response To Defendants’ Motion To Dismiss” (Document No. 45) on April 28, 2023. The “Reply
Brief In Support Of Defendants Adam Dillard, Iredell County, Iredell County Sheriff’s Office,
Ron Hillard, Darren Campbell, Eric Green, Matt Campbell, Gary Mykinsen, And John Williams’
Motion To Dismiss Plaintiff’s Amended Complaint” (Document No. 46) was filed May 18, 2023.
The pending motions have been fully briefed and are ripe for review and a recommended
disposition to the Honorable Kenneth D. Bell.
II. STANDARD OF REVIEW
Motion To Dismiss Under Rule 12(b)(1)
A motion to dismiss under Rule 12(b)(1) seeks to dismiss a complaint for lack of subject-
matter jurisdiction. Fed.R.Civ.P. 12(b)(1). The plaintiff has the burden of proving that subject-
1 The undersigned denied the portion of Plaintiff’s response brief that sought leave to file a second amended complaint.
See (Document No. 43).
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matter jurisdiction exists. See Richmond, Fredericksburg & Potomac R.R. Co. v. United States,
945 F.2d 765, 768 (4th Cir. 1991). The existence of subject-matter jurisdiction is a threshold issue
the court must address before considering the merits of the case. Jones v. Am. Postal Workers
Union, 192 F.3d 417, 422 (4th Cir. 1999). “The subject matter jurisdiction of federal courts is
limited and the federal courts may exercise only that jurisdiction which Congress has prescribed.”
Chris v. Tenet, 221 F.3d 648, 655 (4th Cir. 2000) (citing Kokkonen v. Guardian Life Ins. Co. of
Am., 511 U.S. 375, 377 (1994)).
When a defendant challenges subject-matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1),
“the district court is to regard the pleadings as mere evidence on the issue, and may consider
evidence outside the pleadings without converting the proceeding to one for summary judgment.”
Richmond, 945 F.2d at 768. The district court should grant the Rule 12(b)(1) motion to dismiss
“only if the material jurisdictional facts are not in dispute and the moving party is entitled to prevail
as a matter of law.” Id.; see also Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir. 1999).
Motion To Dismiss Under Rule 12(b)(2)
A motion to dismiss under Rule 12(b)(2) seeks to dismiss a complaint for lack of personal
jurisdiction. Fed.R.Civ.P. 12(b)(2). A party invoking federal court jurisdiction has the burden of
establishing that personal jurisdiction exists over the defendant. New Wellington Fin. Corp. v.
Flagship Resort Dev. Corp., 416 F.3d 290, 294 (4th Cir. 2005); Combs v. Bakker, 886 F.2d 673,
676 (4th Cir. 1989).
When a court’s personal jurisdiction is properly challenged by a
Rule 12(b)(2) motion, the jurisdictional question thus raised is one
for the judge, with the burden on the plaintiff ultimately to prove the
existence of a ground for jurisdiction by a preponderance of the
evidence…[W]hen, as here, the court addresses the question on the
basis only of motion papers, supporting legal memoranda and the
relevant allegations of a complaint, the burden on the plaintiff is
simply to make a prima facie showing of a sufficient jurisdictional
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basis in order to survive the jurisdictional challenge. In considering
a challenge on such a record, the court must construe all relevant
pleading allegations in the light most favorable to the plaintiff,
assume credibility, and draw the most favorable inferences for the
existence of jurisdiction.
Combs, 886 F.2d at 676 (internal citations omitted). “Mere allegations of in personam jurisdiction
are sufficient for a party to make a prima facie showing.” Barclays Leasing, Inc. v. Nat’l Bus.
Sys., Inc., 750 F. Supp. 184, 186 (W.D.N.C. 1990). The plaintiff, however, “may not rest on mere
allegations where the defendant has countered those allegations with evidence that the requisite
minimum contacts do not exist.” IMO Indus., Inc. v. SEIM S.R.L., 2006 WL 3780422, at *1
(W.D.N.C. Dec. 20, 2006). “Rather, in such a case, the plaintiff must come forward with affidavits
or other evidence to counter that of the defendant…factual conflicts must be resolved in favor of
the party asserting jurisdiction…” Id. (internal citations omitted).
There are two varieties of personal jurisdiction, general and specific. General jurisdiction
requires “substantial” or “continuous and systematic” contacts or activities in the forum state.
Daimler AG v. Bauman, 571 U.S. 117, 119 (2014). Specific jurisdiction exists when a court
exercises personal jurisdiction over a defendant in a suit arising out of or related to the defendant’s
contacts with the forum. Helicopteros Nacionales de Columbia, S.A. v. Hall, 466 U.S. 408, 414
n.8 (1984).
Motion To Dismiss Under Rule 12(b)(6)
A motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) tests the “legal sufficiency of the
complaint” but “does not resolve contests surrounding the facts, the merits of a claim, or the
applicability of defenses.” Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992);
Eastern Shore Markets, Inc. v. J.D. Assoc. Ltd. Partnership, 213 F.3d 175, 180 (4th Cir. 2000). A
complaint attacked by a Rule 12(b)(6) motion to dismiss will survive if it contains “enough facts
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to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Robinson v.
American Honda Motor Co., Inc., 551 F.3d 218, 222 (4th Cir. 2009). “A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678.
“Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements,
do not suffice.” Id.
The Supreme Court has also opined that
Federal Rule of Civil Procedure 8(a)(2) requires only “a short
and plain statement of the claim showing that the pleader is entitled
to relief.” Specific facts are not necessary; the statement need only
“‘give the defendant fair notice of what the ... claim is and the
grounds upon which it rests.’” In addition, when ruling on a
defendant’s motion to dismiss, a judge must accept as true all of the
factual allegations contained in the complaint.
Erickson v. Pardus, 551 U.S. 89, 93-94 (2007) (quoting Twombly, 550 U.S. at 555-56).
“Although for the purposes of this motion to dismiss we must take all the factual allegations
in the complaint as true, we are not bound to accept as true a legal conclusion couched as a factual
allegation.” Papasan v. Allain, 478 U.S. 265, 286 (1986). The court “should view the complaint
in the light most favorable to the plaintiff.” Mylan Labs, Inc. v. Matkar, 7 F.3d 1130, 1134 (4th
Cir. 1993).
III. DISCUSSION
The undersigned begins the analysis by highlighting the standard of review applicable to
pro se complaints. Courts are to “liberally construe[]” pro se complaints, “however inartfully
pleaded,” and look upon such documents with “less stringent standards than formal pleadings
drafted by lawyers.” Estelle v. Gamble, 429 U.S. 97, 106 (1976) (internal quotations and citations
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omitted). However, while courts look upon pro se complaints with “special judicial solitude,” the
liberal perspective that a court must adopt in these cases “does not transform the court into an
advocate…[o]nly those questions which are squarely presented to a court may be properly
addressed.” Weller v. Dep’t of Soc. Servs. for City of Baltimore, 901 F.2d 387, 391 (4th Cir.
1990). Keeping those principles in mind, it is important to note at the outset the extraordinary
breadth of Plaintiff’s Amended Complaint, which appears to take a kitchen-sink approach to the
events alleged. Plaintiff states eleven claims, seven of which are alleged against all twenty-five
Defendants. The undersigned will examine the eleven claims in turn below.2 First, though, it is
necessary to discuss whether some of the twenty-five named Defendants are properly sued, at all.3
Parties Who Cannot Be Sued
a. Defendants Matt Campbell, Darren Campbell, Green, Mykinsen, and Williams
2 The undersigned recognizes that some of the motions to dismiss discuss timeliness and other issues with Plaintiff’s
attempt at service of process. See (Document Nos. 25, 28, 32). While the undersigned acknowledges such concerns,
in light of Plaintiff’s pro se status and the relevant standard, the undersigned will analyze the motions to dismiss
pursuant to Rule 12(b)(6). Pursuant to the relevant standard, courts are not required to dismiss a complaint if service
is untimely – dismissal is but one of two options. Fed.R.Civ.P. 4(m). Under Federal Rule of Civil Procedure 4, the
court can “order that service be made within a specified time,” even if “a defendant is not served within 90 days after
the complaint is filed.” Id. Therefore, the undersigned will not recommend dismissal of this action on the basis of
untimely or improper service. Clearly, all of the parties were on notice of the lawsuit given their respective motions,
and “while a litigant’s pro se status cannot be the sole factor in assessing whether good cause exists for non-compliance
with Rule 4(m), it is a relevant consideration.” Lane v. Lucent Techs., Inc., 388 F. Supp. 2d 590, 597 (M.D.N.C.
2005) (internal citations and quotations omitted). Similarly, the only Defendants for whom improper service of
process was argued include Defendants Liles, Allen, Souther, and Johnson. See (Document No. 28, p. 5); (Document
No. 32, p. 5). Still, it is clear these Defendants had actual notice. See Ancient Sun Nutrition, Inc. v. Lawlor, 2008
WL 1944235, at *2 (W.D.N.C. May 1, 2008) (“[g]enerally, ‘where actual notice of the commencement of the action
and the duty to defend has been received by the one served,’ Rule 4(e)(2) is liberally construed to effectuate service”
(quoting Karlsson v. Rabinowitz, 318 F.2d 666, 668 (4th Cir. 1963)). Thus, issues with service of process will not
serve as the basis for any recommended dismissal of Plaintiff’s Amended Complaint.
3 It appears that Plaintiff is attempting to sue each individual Defendant who is employed by a governmental body in
both their individual and official capacities. Importantly, the undersigned notes that “[o]fficial capacity
suits…‘generally represent only another way of pleading an action against an entity of which an officer is an agent.’”
Kentucky v. Graham, 473 U.S. 159, 165 (1985) (internal citations omitted). So long as “the government entity receives
notice and an opportunity to respond, an official-capacity suit is, in all respects other than name, to be treated as a suit
against the entity…[i]t is not a suit against the official personally, for the real party in interest is the entity.” Id. at
166.
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Plaintiff names as Defendants certain individuals for whom he does not outline any specific
factual allegations. For this reason, any claims purportedly alleged against Defendants Matt
Campbell, Darren Campbell, Green, Mykinsen, and Williams should be dismissed. There are no
specific factual allegations whatsoever against these Defendants, and thus, it is not at all clear how
they were involved. “Since Plaintiff has not pled facts showing wrongful or illegal acts by [] these
six defendants, these defendants have neither ‘fair notice’ of any claim against them nor notice of
the ‘grounds upon which [any] claim against [them] rests.’” (Document No. 25, p. 8) (citing
Twombly, 550 U.S. at 555). The undersigned thus respectfully recommends dismissal of all
purported claims alleged against these five Defendants.
b. Defendants Nixon, Kirkland, and Iredell County Clerk of Superior Office
The undersigned respectfully recommends that the claims against Defendants Nixon,
Kirkland, and the “Iredell County Clerk of Superior Office” suffer a similar fate – there simply are
insufficient or no factual allegations leveled specifically against these Defendants. See (Document
No. 3). Based on the same reasoning above, the undersigned respectfully recommends that all
claims purportedly alleged against these three Defendants be dismissed for failure to state a claim
– no factual basis has been provided that could plausibly support a claim to survive dismissal under
Rule 12(b)(6).
c. Defendants Burris and Mahoney
Regarding the claims against Defendants Burris and Mahoney, the undersigned
respectfully recommends that any purportedly alleged claims against these two Defendants be
dismissed. First, there is simply insufficient factual content that links these two Defendants to the
alleged claims. With respect to Defendant Burris, Plaintiff discusses both (1) testimony that
Defendant Burris gave at trial about his having “one foot in the doorway of the DA’s lobby and
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another foot in the hallway of the annex building when Hillard exited the courtroom,” and (2) her
role in telling Plaintiff that if he did not leave the DA’s Office “she would call security.” Id. at pp.
8, 16. Defendant Burris “is an employee of the District Attorney’s Office” in Iredell County.
(Document No. 22, p. 11). First, the allegation that Burris told Plaintiff to leave is insufficient to
state a claim against Burris – what is the alleged wrong, and to which claim does this fact relate?
Second, even if Plaintiff were attempting to allege a claim against Burris for allegedly incorrect
statements made as a witness at trial, Burris would be entitled to immunity on such claims. See
Rehberg v. Paulk, 566 U.S. 356, 367 (2012) (“the immunity of a trial witness sued under §
1983…[is] absolute…with respect to any claim based on the witness’ testimony”).
With respect to Defendant Mahoney, the problem is similarly twofold. First, there are
simply not enough factual allegations that tie Mahoney to the events at issue to state a plausible
claim against her. Second, any alleged argument that Mahoney’s conduct in allegedly intentionally
suppressing video evidence also fails. See (Document No. 3, p. 19). Defendant Mahoney is a
prosecutor with the Iredell County District Attorney’s Office. See (Document No. 22, p. 10).
Prosecutorial immunity bars suit against defendant prosecutors sued for activities “intimately
associated with the judicial phase of the criminal process.” Imbler v. Pachtman, 424 U.S. 409, 430
(1976). And, the Fourth Circuit has held that prosecutorial immunity covers allegations of
withholding of material, exculpatory evidence. See Carter v. Burch, 34 F.3d 257, 263 (4th Cir.
1994). Thus, any alleged claims against Defendants Burris and Mahoney are respectfully
recommended to be dismissed.
d. Defendants the DA’s Office, City of Statesville, the Statesville Police Department,
Iredell County, and the Iredell County Sheriff’s Office
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Plaintiff does not specifically allege facts regarding the DA’s Office and its liability apart
from the alleged failure “to properly train its employees as to the proper role of rescheduling non-
attorney’s who have missed a court date.” (Document No. 3, p. 19). Those allegations will be
discussed below in the section regarding Plaintiff’s first claim. Apart from that claim, however,
any other attempt to hold the DA’s Office liable under § 1983 would fail. The crux of Plaintiff’s
allegations seems to be, without more, that the DA’s Office should be held liable because it
employed individuals who allegedly violated Plaintiff’s constitutional rights. The other
governmental entities named as Defendants in this lawsuit – the City of Statesville, the Statesville
Police Department, Iredell County, and the Iredell County Sheriff’s Office – are seemingly sued
under a similar theory. The Supreme Court has squarely rejected this kind of vicarious liability
legal theory. Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658, 691 (1978) (“a
municipality cannot be held liable under § 1983 on a respondeat superior theory”).
Furthermore, with respect to the state law claims purportedly alleged against these
governmental entities, the DA’s Office and all other governmental entities sued here are also
immune. “Under North Carolina law, the doctrine of sovereign or governmental immunity bars
actions against municipalities and public officials sued in their official capacity.” Hogan v.
Cherokee Cty., 1:18-CV-096-MR-WCM, 519 F. Supp. 3d 263, 286 (W.D.N.C. 2021). While
immunity can be waived through the purchase of liability insurance covering a certain risk, the
presumption “is that immunity applies, absent some allegation about the purchase of liability
insurance.” Dean v. Campbell, 5:22-CV-167-KDB-DCK, 2023 WL 5281945, at *9 (W.D.N.C.
July 14, 2023), memorandum and recommendation adopted, 2023 WL 5281514. Here, Plaintiff
does not make any allegation about a waiver of governmental immunity, including any reference
to the purchase of liability insurance by any of the governmental entities named as Defendants.
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Thus, all claims against the DA’s Office,4 the City of Statesville, the Statesville Police
Department,5 Iredell County, and the Iredell County Sheriff’s Office are respectfully
recommended to be dismissed.
e. Defendants Wilson Security Services, Inc., Allen, and Liles
Furthermore, the claims purportedly alleged against Wilson Security Services, Inc. should
be dismissed. It seems that Plaintiff named the company as a Defendant solely on account of its
status as employer of Allen and Liles. “As a general rule, a principal will be liable for its agent’s
wrongful acts under the doctrine of respondeat superior when the agent’s act (1) is expressly
authorized by the principal; (2) is committed within the scope of the agent’s employment and in
furtherance of the principal’s business; or (3) is ratified by the principal. White v. Consolidated
Planning, Inc., 603 S.E.2d 147, 157 (N.C. Ct. App. 2004). As Defendant Wilson Security Services,
Inc. states in its motion to dismiss, “Plaintiff has failed to adequately plead that Defendants Liles
and Allen were acting within the scope of their employment during the alleged events…[and has
failed] to allege any facts demonstrating that Wilson Security authorized [their employees] to
perform the wrongful actions alleged.” (Document No. 32, p. 11).
With respect to Defendant Allen, there are simply insufficient factual allegations to state a
plausible claim against her. The only real factual allegations involving Allen are that she went “to
get Deputy Hillard,” who subsequently arrested Plaintiff. (Document No. 3, p. 10). Thus, the only
claim for which there is a possible link with Allen is the unlawful arrest claim. Still, as the arresting
officer was Deputy Hillard, and there is no real allegation of wrongdoing on Allen’s part, it is
4 Again, the first claim for a First Amendment violation pursuant to § 1983 will be specifically discussed below with
respect to the DA’s Office.
5 The undersigned will also discuss the Monell claim alleged against the Statesville Police Department in the relevant
section for that claim.
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unclear how Defendant Allen could possibly be held liable under any claim. Even if there was
some actual wrongdoing on Allen’s part, though, as a private party, she cannot be held liable under
§ 1983. “To state a claim under § 1983, a plaintiff must allege that he was deprived of a right
secured by the Constitution or laws of the United States, and that the alleged deprivation was
committed by a ‘person’ acting under color of state law.” Elmore v. Mecklenburg Cty.
Courthouse, 3:23-CV-036-MR, 2023 WL 5539023, at *2 (W.D.N.C. Aug. 28, 2023). And, private
parties are considered to be engaging in state action “only if the conduct at issue is ‘fairly
attributable to the State.’” Id. at *3 (quoting Lugar v. Edmondson Oil Co., 457 U.S. 922, 937
(1982)). Here, there is no plausible allegation that Allen was acting as an arm of the state. Plaintiff
conclusorily states that Allen and Liles were acting “under the color of state law,” without more.
(Document No. 3, p. 6). Such conclusory allegations are insufficient to withstand dismissal under
Rule 12(b)(6), and therefore all claims purportedly alleged against Defendant Allen are
respectfully recommended to be dismissed.
The analysis on the § 1983 claims purportedly alleged against Defendant Liles is the same.
Conclusory allegations about Liles acting “under the color of state law” without more do not
establish the requisite connection to state action that is required to state a plausible § 1983 claim
against Liles as a state actor. Elmore, 2023 WL 5539023, at *3; see (Document No. 3, p. 6). The
allegations related to the assault claim against Defendant Liles will be discussed in the section
addressing that claim in the section that follows. The only other factual allegations regarding Liles
are that he allegedly falsely testified “that Plaintiff had one foot in the doorway of the DA’s lobby
and another foot in the hallway of the annex building when Hillard exited” the courtroom and that
he told Patsy Allen to get the sheriff. (Document No. 3, pp. 10, 16). As already discussed,
witnesses are immune from claims under § 1983 seeking to hold them liable for testimony given
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in a former trial. Rehberg, 566 U.S. at 367. And, Plaintiff’s allegation about Liles asking Allen
to get a sheriff does not involve any wrongdoing, and therefore, any purportedly alleged claim
arising from this fact should fail. Thus, apart from the assault claim discussed in the next section,
all other claims purportedly alleged against Defendant Liles are also respectfully recommended to
be dismissed.
f. Defendants Souther and Dillard
Defendant Dillard is “an attorney employed by the [Iredell County] Sheriff’s Office.”
(Document No. 25, p. 5). The primary allegation in the Amended Complaint related to Dillard is
that he “falsely stated in a letter that [the video footage depicting the incident] did not exist” in
response to Plaintiff’s public records request to the Iredell County Sheriff’s Office. (Document
No. 3, p. 18). And, the Amended Complaint contains only one mention of Defendant Souther
specifically: that, in response to Plaintiff’s public records request for body and dash camera
footage to the Statesville Police Department, Souther responded that the footage did not exist.
(Document No. 3, p. 15). The only federal claim that these factual allegations possibly support is
the alleged Brady violation under § 1983, and thus, the allegations against Defendants Souther and
Dillard with respect to that claim will be discussed in that section.
With respect to any state law claims possibly alleged against Defendants Souther and
Dillard, they are entitled to public official immunity on such claims. In North Carolina, “[t]he
public immunity doctrine protects public officials from individual liability for negligence in the
performance of their governmental or discretionary duties.” Hogan, 519 F. Supp. 3d at 288
(internal quotations and citations omitted). Liability extends only to those state law claims for
which there is an allegation that the individual government official acted with “malice” or with the
state of mind with which “a man of reasonable intelligence would know to be contrary to his duty.”
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Id. (internal quotations and citations omitted). Here, there is no allegation that Defendants Souther
or Dillard maliciously withheld the body or dash camera footage or the video footage of the arrest
itself or that they knew that doing so would be contrary to their respective duties. In fact, with
respect to Defendant Dillard, Plaintiff suggests that the video may have been “inadvertently
suppressed.” (Document No. 3, p. 21).6 This allegation removes the element of malice that is
required to be stated with plausibility for immunity not to apply. Thus, all claims against
Defendants Souther and Dillard7 are respectfully recommended to be dismissed.
g. Unknown Employees of the Iredell County Clerk of Superior Court, the DA’s Office,
and the Statesville Police Department
Plaintiff also attempts to sue three sets of “unknown” employees of the Iredell County
Clerk of Superior Court, the DA’s Office, and the Statesville Police Department. There are no
allegations that are specific enough to warrant survival of any alleged claims against these
employees. It is not acceptable “to make scattergun claims against [unknown defendants] on a
mere possibility that they could have been involved in the alleged wrongful conduct.” Bailey v.
Polk Cty., N.C., 2011 WL 4565469, at *8 (W.D.N.C. Mar. 7, 2011). Thus, all claims against these
unknown Defendants are respectfully recommended to be dismissed.
Claim One: § 1983 Claim for First Amendment Violation
Plaintiff alleges in his first claim that “Defendants unlawfully deprived Plaintiff of his First
Amendment Right to represent himself in rescheduling a traffic citation when he was not allowed
to speak with a prosecutor and given a form to recalendar his case for a hearing.” (Document No.
6 Notably, this allegation that the evidence could have been “inadvertently suppressed” conflicts with other allegations
elsewhere in the Amended Complaint, which seem to describe the suppression as intentional. See (Document No. 3,
p. 19) (“Regina Mahoney, Adam Dillard, Ron Hillard, and other [] named defendants were aware that the video
excluded evidence needed for the Plaintiff[’s] defense”).
7 The Brady claim against both Defendants Souther and Dillard under § 1983 will be discussed in the following section.
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3, p. 19). Plaintiff goes on to allege that “Defendants acted pursuant to a policy or custom of the
Iredell County District Attorney’s Office of detaining and arresting Plaintiff without a court order
and without providing an opportunity to be heard on a traffic citation case.” Id. The undersigned
concludes that Plaintiff’s first claim is simply devoid of sufficient facts to state a plausible claim.
There are significant holes in factual detail – although Plaintiff purports to bring this claim against
all Defendants, no specific Defendant apart from the Iredell County District Attorney’s Office is
named in this section. Furthermore, if Plaintiff is attempting to state a claim for retaliatory arrest
for protected First Amendment activity, it is not clear what First Amendment right Plaintiff is
claiming he was exercising. There are no further details about the alleged “custom” or “policy”
of the DA’s Office, nor any attempt to allege how the twenty-five named Defendants were factually
involved in the events giving rise to this specific claim.
Therefore, the undersigned will respectfully recommend that Plaintiff’s first claim pursuant
to § 1983 for a First Amendment violation be dismissed. There simply is not sufficient factual
detail alleged to make out a plausible claim under 12(b)(6), nor is it clear exactly what Plaintiff is
claiming. The Court cannot play the role of attorney and attempt to define Plaintiff’s claim against
all twenty-five Defendants for him.
Claim Two: Unlawful Arrest and False Imprisonment
Plaintiff’s second claim is alleged against all Defendants for “unlawful arrest of Plaintiff.”
(Document No. 3, p. 20). Although Plaintiff does not state in the claim’s heading (as he seems to
have done for other alleged claims pursuant to § 1983) that it is brought under § 1983, in the
description of the claim, he states that his arrest was “in violation of the Fourth Amendment to the
Constitution…[and] the Fourteenth Amendment.” Id. Thus, it is not clear whether Plaintiff is
bringing a state law unlawful arrest claim or a claim pursuant to § 1983 for arrest in violation of
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his federal constitutional rights. The undersigned will not guess as to what claim Plaintiff was
attempting to bring given the lack of clarity. Under either standard, though – the federal or state
law claim for unlawful arrest – a plaintiff must plausibly allege that his arrest was made without
probable cause in order to state a valid claim. See Miller v. Prince George’s Cty., MD, 475 F.3d
621, 627 (4th Cir. 2007); Myrick v. Cooley, 371 S.E.2d 492, 495 (N.C. Ct. App. 1988). The only
Defendants for whom this claim makes any sense based on the factual allegations are Defendants
Johnson and Hillard, in their individual capacities.
Based on the allegations in Plaintiff’s Amended Complaint and the arguments in
Defendants’ briefing on the motions to dismiss, there appears to be a factual dispute even about
(1) what Defendant Hillard observed – that is, whether he observed Plaintiff standing in the DA’s
Office or only in the hallway; and (2) what Defendant Hillard knew prior in time to effectuating
Plaintiff’s arrest – i.e., to whom he had spoken and what information he had gathered from such
conversations. See (Document No. 25, pp. 11-12) (Defendant Hillard argues that “probable cause
existed to arrest Plaintiff for second degree trespassing”); (Document No. 3, p. 2) (Plaintiff alleges
that he was not standing in the DA’s Office but rather in the hallway and Defendant Hillard did
not speak to the DA’s Office employee – Burris – who had told him to leave prior to arresting
him). These facts are essential to determination of whether probable cause existed for Plaintiff’s
arrest. And, although Johnson was not the initial arresting officer, Plaintiff suggests that there was
some doubt in Johnson’s mind about the trespass charge, and yet he continued to effectuate the
arrest by transporting Plaintiff in his patrol car anyway. See (Document No. 3, p. 14) (“Plaintiff
noticed Officer Johnson was confused about the charge of trespassing”).
“Probable cause is determined from the totality of the circumstances known to the officer
at the time of the arrest.” Brown v. Gilmore, 278 F.3d 362, 367 (4th Cir. 2002). “Second-degree
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trespass occurs when a person ‘enters or remains on premises of another’ without authorization”
when one of two conditions are met: “(1) [a]fter he has been notified not to enter or remain there
by the owner, by a person in charge of the premises, by a lawful occupant, or by another authorized
person;” or “(2) [t]hat are posted, in a manner reasonably likely to come to the attention of
intruders, with notice not to enter the premises.” State v. Burwell, 808 S.E.2d 583, 593 (N.C. Ct.
App. 2017) (citing N.C. Gen. Stat. § 14-159.13)). Given that courts are not to “resolve contests
surrounding the facts” at the motion to dismiss stage, the undersigned will respectfully recommend
that Plaintiff’s unlawful arrest claim (the state law and the federal variety—whichever is intended
to be alleged) survive dismissal against Defendants Hillard and Johnson only.8 Martin, 980 F.2d
at 952.
Claim Three: § 1983 Claim for Brady Violation
Prosecutors who suppress material exculpatory evidence violate the Due Process clause.
Brady v. Maryland, 373 U.S. 83, 87 (1963). Here, however, the only defendants for which this
claim requires analysis are not prosecutors – they include Dillard, who worked for the Iredell
County Sheriff’s Office, and Souther, who worked for the Statesville Police Department. All
attorney Defendants associated with the Iredell County District Attorney’s Office are absolutely
8 The undersigned will not address qualified immunity at the motion to dismiss stage. “[Q]ualified immunity protects
government officials ‘from liability for civil damages insofar as their conduct does not violate clearly established
constitutional rights of which a reasonable person would have known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009)
(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Given that it is not clear whether or not a constitutional
violation occurred, the undersigned cannot determine at this early stage whether the officers are immune because the
threshold inquiry – whether a constitutional right has been violated – requires fact-specific inquiries inappropriate at
this stage of the litigation. See Laschober v. Ammons, 1:21-CV-107-MR-WCM, 2021 WL 8054170, at *7 (W.D.N.C.
Oct. 29, 2021) (“[w]hile the issue of qualified immunity should be addressed at the earliest stage possible, it can be
difficult to determine a defendant’s entitlement to qualified immunity at the pleading stage”).
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immune from this claim on account of prosecutorial immunity for alleged Brady violations under
§ 1983. See supra p. 12; and Carter, 34 F.3d at 263.9
The only individual Defendants for whom a Brady claim makes sense based on Plaintiff’s
alleged facts are Dillard and Souther in their individual capacities. All other Defendants are either
not liable for the reasons discussed above or there is insufficient factual content linking them to
this claim. With respect to Dillard, Plaintiff contends that “Adam Dillard, an attorney for the
Iredell County Sheriff’s Office, falsely denied a public record request and an answer to a subpoena
that a [video of the incident leading to the trespassing charge] did not exist.” (Document No. 3, p.
1). Plaintiff goes on to allege that Dillard “sent a courtesy copy of the denial letter to the Iredell
County District Attorney’s Office, knowing the footage existed and their office gave it to the DA’s
office at least five months prior.” Id.
“While the Fourth Circuit has not laid out the specific parameters of an officer’s duty to
disclose evidence, a plaintiff bringing a Section 1983 claim against an officer must, at a
minim[um], allege that the officer” did three things. Chapman v. Rhoney, 2011 WL 7971750, at
*8 (W.D.N.C. Aug. 3, 2011). One, a plaintiff must allege that the officer “intentionally withheld
exculpatory evidence from the prosecution.” Id. Two and three, a plaintiff must allege that this
“resulted in a wrongful criminal conviction” that was “subsequently overturned pursuant to a
Brady violation.” Id. And four, a plaintiff must allege that “the officers acted in bad faith.” Id.
Plaintiff fails on the first element. He cannot show that Dillard withheld evidence from the
prosecution, for in fact, he alleges that he “gave it to the DA’s office.” (Document No. 3, p. 1).
9 Plaintiff contends that 24 minutes of the relevant video were not played at his trial that would have “proved Plaintiff
was not trespassing before or at the time of his arrest.” (Document No. 3, p. 21). Since the prosecution played this
video at Plaintiff’s trial, and the prosecutors are absolutely immune from Brady claims under § 1983, any claim arising
out of this fact must fail.
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For this reason, the undersigned respectfully recommends that Plaintiff’s Brady claim under §
1983 against Dillard be dismissed.
The allegations against Defendant Souther are different in kind. Plaintiff alleges that
Souther stated in response to Plaintiff’s request for body camera or dash camera footage from
Officer Johnson that such footage did not exist. Id. at p. 16. Nowhere, though, does he allege that
Defendant Souther was lying or falsely representing that the evidence did not exist. Clearly, “there
can be no suppression of evidence that does not exist at the time of trial or sentencing.” Burgess
v. Terry, 478 F. App’x 597, 600 (11th Cir. 2012); see also Arizona v. Youngblood, 488 U.S. 51,
58 (1988) (“unless a criminal defendant can show bad faith on the part of the police, failure to
preserve potentially useful evidence does not constitute a denial of due process of law”). The
undersigned thus respectfully recommends that the Brady claim under § 1983 purportedly asserted
against Defendant Souther be dismissed.
Claim Four: § 1983 Claim for Excessive Force in Violation of the Fourth Amendment
Plaintiff’s fourth claim is alleged against “[a]ll [i]nvolved [l]aw [e]nforcement official[s],
and all involved policymakers” for a Fourth Amendment violation of Plaintiff’s alleged right to be
free from excessive force for “tight handcuffs.” (Document No. 3, p. 21). In reality, though, the
only Defendants who are potentially liable on this claim – both because they are the only logical
Defendants based on the factual allegations and because others are immune from suit for the
reasons described in the preceding sections – include Defendants Johnson and Hillard in their
individual capacities. Plaintiff alleges that “Defendant Hillard intentionally and unlawfully failed
to double lock the handcuffs to punish Plaintiff…which caused the handcuffs to tighten
unnecessarily against both of Plaintiff’s wrist[s] which eventually drew blood.” Id. at pp. 21-22.
With respect to Defendant Johnson, Plaintiff alleges that Johnson “failed to check if the handcuffs
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were double locked before Plaintiff was placed into the back seat of his patrol unit.” (Document
No. 3, p. 22). Nonetheless, Plaintiff also states that when he “yelled loudly in extreme pain,”
“Officer Johnson loosened the handcuffs.” Id. at p. 14.
“Excessive force claims in the context of an arrest are properly analyzed under the Fourth
Amendment’s ‘objective reasonableness’ standard.” Kitchen v. Miller, 1:14-CV-122-MR-DLH,
2016 WL 7478982, at *7 (W.D.N.C. Dec. 29, 2016) (citing Graham v. Connor, 490 U.S. 386, 394
(1989)). “Reasonableness must be evaluated ‘from the perspective of a reasonable officer on the
scene, rather than with the 20/20 vision of hindsight.’” Kitchen, 2016 WL 7478982, at *7 (citing
Graham, 490 U.S. at 396).
Considering Plaintiff’s factual allegations here, the undersigned will recommend “that
Plaintiff’s § 1983 claim based on excessive force be allowed to proceed to allow for further
development of the factual record.” Laschober v. Ammons, 1:21-CV-107-MR-WCM, 2021 WL
8054170, at *7 (W.D.N.C. Oct. 29, 2021). Indeed, the Eighth Circuit affirmed the denial of
summary judgment to defendants where the allegation supporting an excessive force claim was
that the handcuffs were too tight. See Kukla v. Hulm, 310 F.3d 1046, 1050 (8th Cir. 2002); see
also Sharnick v. D’Archangelo, 935 F. Supp. 2d 436, 448 (D. Conn. 2013) (denying summary
judgment on excessive force claim where officer failed to double lock handcuffs and ignored
arrestee’s complaints of pain and “pleas to loosen the handcuffs”). Therefore, the undersigned
will respectfully recommend that the motion to dismiss Plaintiff’s fourth claim for excessive force
pursuant to § 1983 be denied with respect to Defendants Johnson and Hillard only.10
Claim Five: State Law Claim for Malicious Prosecution
10 Again, for the reasons discussed in an earlier section, whether qualified immunity applies is not appropriate to
determine at this stage of the litigation. See supra p. 20, n.8.
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Plaintiff’s fifth claim is alleged against all Defendants for malicious prosecution.
(Document No. 3, p. 22). However, on account of either inability to be sued due to immunity or
lacking relevant factual detail (all described in the party-specific sections above), most of the
named Defendants cannot be sued for this claim. Nonetheless, Defendants Johnson and Hillard –
both law enforcement officers who participated in Plaintiff’s arrest – are proper Defendants for
this claim, which will be analyzed below.
The elements of malicious prosecution include: “(1) the initiation or maintenance of a
proceeding against the plaintiff by the defendant;” “(2) termination of that proceeding favorable
to the plaintiff;” “(3) lack of probable cause to support that proceeding;” “and (4) the defendant’s
malice.” Lambert v. Williams, 223 F.3d 257, 260 (4th Cir. 2000); see also Best v. Duke Univ.,
448 S.E.2d 506, 510 (N.C. 1994). Here, it seems evident that at least with respect to Defendants
Johnson (employed by the Statesville Police Department) and Hillard (employed by the Iredell
County Sheriff’s Office), this claim should proceed. Although it is a state law claim, given that
malice is an essential element, public official immunity does not apply. Hogan, 519 F. Supp. 3d
at 288.
The first element of a malicious prosecution claim is satisfied “[w]here it is unlikely there
would have been a criminal prosecution…except for the efforts of a defendant.” Lopp v.
Anderson, 795 S.E.2d 770, 780 (N.C. Ct. App. 2016) (citing Becker v. Pierce, 608 S.E.2d 825,
829 (N.C. Ct. App. 2005)) (internal quotations and citations omitted). As the officers effectuating
the arrest of Plaintiff Millsaps, their role was essential in initiating the criminal prosecution for the
second-degree trespass charge. Second, as Plaintiff states in his Amended Complaint, the second
element is satisfied because at the third trial, he was found not guilty by a jury. See (Document
No. 3, p. 1). With respect to the third element, the undersigned has already discussed probable
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cause in an earlier section of this document. See supra pp. 19-20. Whether probable cause existed
for Plaintiff’s arrest is contested at this point, and thus, Plaintiff has plausibly alleged the existence
of this element at this stage of the proceedings. And, finally, Plaintiff plausibly alleged the
existence of malice – the fourth element. Thus, the undersigned respectfully recommends that this
claim survive as to Defendants Johnson and Hillard only in their individual capacities.
Claim Six: State Law Claim for Abuse of Process
Plaintiff’s sixth claim is again alleged against all Defendants for the state law tort of abuse
of process. (Document No. 3, pp. 23-24). With respect to the tort of abuse of process under North
Carolina law, a Plaintiff must allege both (1) “the existence of an ulterior purpose”; and (2) “an
act in the use of the process not proper in the regular prosecution of the proceeding.” Shipp v.
Goldade, 5:19-CV-085-KDB-DCK, 2020 WL 1429248, at *6 (W.D.N.C. Mar. 19, 2020) (citing
Barnette v. Woody, 88 S.E.2d 223, 227-28 (N.C. 1955)). Here, Plaintiff does not allege that any
Defendant had an ulterior purpose. For this reason, Plaintiff’s abuse of process claim should fail
– the undersigned respectfully recommends that Defendants’ motion to dismiss Plaintiff’s abuse
of process claim be granted.
Claim Seven: State Law Claim for Assault
Plaintiff’s seventh claim is alleged only against Defendant Liles for state law assault. The
only description in Plaintiff’s Amended Complaint specific to this claim is that Liles “acted and
intended to make contact with the Defendant by grabbing him by his left arm,” after which
“Plaintiff told the Defendant not to touch him.” (Document No. 3, p. 25).
Importantly, “[a]n assault is an offer to show violence to another without striking him.”
Mazzariello v. Atlantic Coast Waterproofing, 3:16-CV-835-RJC-DCK, 2017 WL 9516604, at *7
(W.D.N.C. May 19, 2017) (internal quotations and citations omitted). Id. Thus, “the interest
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protected by the action for assault is freedom from apprehension of a harmful or offensive contact
with one’s person.” Id. Here, Plaintiff alleges that Defendant Liles actually made contact with
Plaintiff’s arm.
The undersigned finds that this is a close call. While Defendant Liles argues that there was
no apprehension of harmful or offensive contact because “Defendant Liles allegedly approached
Plaintiff from behind’ and “Plaintiff has not alleged that he was…even aware of the possibility of
[] contact,” the undersigned finds that further development of the record is necessary to elucidate
whether Plaintiff was aware of Liles’ presence. (Document No. 32, p. 7). Plaintiff states in his
response that he told Liles not to touch him “believing that Liles would touch him again after Liles
had already grabbed Plaintiff.” (Document No. 35, p. 10). In this respect, the undersigned could
understand how the act of grabbing Plaintiff’s arm was the apprehension of further harmful or
offensive contact. Respectfully, it is recommended that this claim survive Defendant Liles’ motion
to dismiss to allow for further discovery.
Claim Eight: Monell
Plaintiff’s eighth claim is a Monell claim alleged against Defendants Johnson, Hillard, and
the Statesville Police Department. Plaintiff’s allegations are that “[i]t is the policy or custom of
the Statesville Police Department and the Iredell County Sheriff’s Office to double lock handcuffs
prior to a person in their custody being placed in a patrol unit.” (Document No. 3, p. 25). He
alleges that Hillard incorrectly “positioned” the handcuffs, and Officer Johnson failed to “inspect
the handcuffs prior to Plaintiff being put in the patrol unit” despite policies that required double-
locking of handcuffs. Id. at pp. 13-14.
It is important to establish at the outset that Defendants Hillard and Johnson cannot be sued
in their individual capacities pursuant to a Monell theory of liability, which applies only to
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governmental entities. King v. Blackwood, 2023 WL 4163141, at *11 (M.D.N.C. June 23, 2023)
(“municipal liability [pursuant to Monell] applies only to local government entities, including local
governmental officials sued in their official capacity”); see also Gatchel v. Henry Cty., Georgia,
2023 WL 6216529, at *4 (N.D. Ga. June 20, 2023) (granting motion to dismiss where defendants
sued in individual capacity were sued pursuant to Monell). For this reason, the undersigned
respectfully recommends that any purportedly alleged Monell claim against Defendants Johnson
and Hillard in their individual capacities be dismissed.11
Given that the undersigned must treat any purportedly alleged official capacity claims
against both Defendants Johnson and Hillard as against the entities of which they are employed –
the Statesville Police Department and the Iredell County Sheriff’s Office, respectfully – an analysis
of whether a Monell claim is plausibly alleged is necessary. Monell liability applies when
“execution of a government’s policy or custom, whether made by its lawmakers or by those whose
edicts or acts may fairly be said to represent official policy, inflicts the [constitutional] injury.”
Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658, 694 (1978). Pursuant to Monell,
there are four theories that support liability pursuant to this claim:
(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 [employees], that ‘manifest[s] 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.’
Dean, 2023 WL 5281945, at *5 (quoting Bailey v. Campbell, 5:22-CV-052-KDB-DSC, 2022 WL
16849126, at *2 (W.D.N.C. Nov. 10, 2022) (internal citations omitted)).
11 As stated previously, claims against governmental officials in their official capacity are duplicative of claims
brought against the governmental entity by which they are employed. See Dean, 2023 WL 5281945, at *3 (“when a
lawsuit is brought against an individual in his or her official capacity, courts will treat the claim as effectively against
the entity to which that official belongs”).
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It is not clear what theory of Monell liability Plaintiff is alleging. Nonetheless, what is
evident is that he clearly states that both the Iredell County Sheriff’s Office and the Statesville
Police Department had policies or customs requiring “double lock[ing] of handcuffs prior to a
person in their custody being placed in a patrol unit.” (Document No. 3, p. 25). In this respect,
Plaintiff’s argument seems to be that the individual officers did not follow their employer’s
policies. This kind of argument amounts to a respondeat superior theory – one which is not tenable
under Monell. Individual officers’ alleged failure to double lock handcuffs was “not caused by a
policy of any governmental entity;” in fact, Plaintiff alleges the opposite – that the governmental
entities had a policy. (Document No. 25, p. 19); see also Estate of Jones v. City of Martinsburg,
West Virginia, 961 F.3d 661, 672 (4th Cir. 2020) (“Monell liability cannot be predicated on a
theory of respondeat superior”). Thus, the undersigned respectfully recommends that this claim
be dismissed.
Claim Nine: § 1985 Claim for Conspiracy to Interfere with Civil Rights
Plaintiff’s ninth claim is for conspiracy to interfere with civil rights pursuant to 42 U.S.C.
§ 1985 against all Defendants. In support, Plaintiff states the following allegations: “[e]ach
Defendant…made an agreement to act together by altering, destroying and excluding evidence of
written report and video footage and then testifying to the contents of the evidence they tampered
with and destroyed,” all to allegedly “accomplish[] a conviction against the Plaintiff.” (Document
No. 3, p. 26).
In order to state a claim under § 1985, “the conspiracy must be motivated by ‘some racial,
or perhaps otherwise class-based invidiously discriminatory animus behind the conspirators’
action.’” Trerice v. Summons, 755 F.2d 1081, 1085 (4th Cir. 1985) (quoting Griffin v.
Breckenridge, 403 U.S. 88, 91 (1971)). Here, Plaintiff does not allege any racial or class-based
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discriminatory animus that motivated Defendants’ conduct. For this reason, the undersigned
respectfully recommends that the § 1985 claim be dismissed.
Claim Ten: State Law Claim for Fraud
Plaintiff’s tenth claim for state law fraud seems to be alleged against Defendants Dillard,
Campbell, and the Iredell County Sheriff’s Office. For the reasons mentioned in the party-specific
section above, Defendants Campbell and the Iredell County Sheriff’s Office are not liable for this
claim. See supra pp. 10, 13. With respect to Campbell, there are simply insufficient factual
allegations against him to make him liable on any claim. Id. at p. 10. And, with respect to the
Iredell County Sheriff’s Office, Plaintiff has not alleged the requisite waiver of governmental
immunity on the fraud claim through any purchase by the Iredell County Sheriff’s Office of
liability insurance. Id. at p. 13.
With respect to Defendant Dillard in his individual capacity, though, the analysis is
different. The elements of a fraud claim in North Carolina are: (1) “[f]alse representation or
concealment of a material fact”; (2) “reasonably calculated to deceive”; (3) “made with intent to
deceive”; (4) “which does in fact deceive”; and (5) “resulting in damage to the injured party.”
Hogan, 519 F. Supp. at 289 (quoting Head v. Gould Killian CPA Grp., P.A., 812 S.E.2d 831, 837
(N.C. 2018)). As Dillard mentions in his brief, it is not clear what damage Plaintiff suffered, based
on the timeline of the representations. Indeed, as Dillard correctly points out, “Plaintiff did not
request footage from the Iredell County Sheriff’s Office until after the conclusion of the first trial
[the information was requested in 2020, and the first trial concluded in 2019].” (Document No.
25, p. 17); see (Document No. 3, p. 18). And, Plaintiff alleges that he received the footage on the
day the second trial began. (Document No. 3, p. 2). So, the damage that he alleges in support of
his fraud claim – that he “suffered through three separate criminal trials as a result of the
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misrepresentation by the Defendants” about whether the Iredell County Sheriff’s Office was in
possession of the footage – could not, based on the timeline, have affected the number of trials
Plaintiff endured. Id. at p. 27. Therefore, lacking the requisite allegation of damage, the
undersigned respectfully recommends that the fraud claim be dismissed.
Claim Eleven: North Carolina Constitutional Claim
It is not entirely clear what kind of claim Plaintiff is attempting to state in the section for
the eleventh claim. Nonetheless, the undersigned will construe this claim as a claim for violation
of the North Carolina Constitution against the “[l]aw [e]nforcement Defendants.” (Document No.
3, p. 27). The contours of this claim are not clear, nor are the specific Defendants that Plaintiff is
seeking to sue. “To assert a constitutional claim under the North Carolina Constitution, a plaintiff
must have no adequate state remedy…to provide relief for the injury.” Dean, 2023 WL 5281945,
at *13 (internal quotations and citations omitted). “[T]o be considered adequate in redressing a
constitutional wrong, a plaintiff must have at least the opportunity to enter the courthouse doors
and present his claim.” Id. (quoting Collum v. Charlotte-Mecklenburg Bd. of Educ., 2010 WL
702462, at *3 (W.D.N.C. Feb. 23, 2010)). Since the undersigned is recommending that the
malicious prosecution state law claim against Defendants Johnson and Hillard survive dismissal,
the undersigned respectfully recommends any purportedly alleged claim under the North Carolina
Constitution be dismissed.
IV. RECOMMENDATION
FOR THE FOREGOING REASONS, the undersigned respectfully recommends that the
“Motion To Dismiss Plaintiff’s Amended Complaint On Behalf [Of] Defendants Iredell County
District Attorney’s Office, Burris, Kirkland, Iredell County Clerk Of Superior Court, Nixon,
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John/Jane Does Unknown Employees Of Clerk’s Office, Mahoney, And John/Jane Does Unknown
Employees Of District Attorney’s Office” (Document No. 21) be GRANTED.
IT IS FURTHER RECOMMENDED that “Defendants Adam Dillard, Iredell County,
Iredell County Sheriff’s Office, Ron Hillard, Darren Campbell, Eric Green, Matt Campbell, Gary
Mykinsen, And John Williams’ Motion To Dismiss Plaintiff’s Amended Complaint Pursuant To
Rule 12(b)(6), And Rules 12(b)(1), (2), (4) And (5), And Rules 4(c)(1) And 4(m)” (Document No.
24), the “Motion To Dismiss By Defendants Statesville Police Department, Unknown Employees
Of Statesville Police Department, Officer K. Johnson, Captain Tom Souther, And City Of
Statesville” (Document No. 27), and “Motion To Dismiss Plaintiff’s Amended Complaint On
Behalf Of Defendants Wilson Security Service, Inc., Patsy Allen And Danny Liles” (Document
No. 31) be GRANTED in part and DENIED in part as follows:
 Count I: First Amendment § 1983 claim – grant dismissal
 Count II: Unlawful Arrest and False Imprisonment § 1983 claim – deny dismissal
only as to Hillard and Johnson in their individual capacities; grant dismissal as to
all other Defendants
 Count III: § 1983 Brady claim – grant dismissal
 Count IV: § 1983 Excessive force claim – deny dismissal only as to Hillard and
Johnson in their individual capacities; grant dismissal as to all other Defendants
 Count V: State law malicious prosecution claim -- deny dismissal only as to Hillard
and Johnson in their individual capacities; grant dismissal as to all other
Defendants
 Count VI: State law abuse of process claim – grant dismissal
 Count VII: Assault claim against Defendant Liles – deny dismissal
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 Count VIII: Monell claim – grant dismissal
 Count IX: § 1985 claim – grant dismissal
 Count X: State law fraud claim – grant dismissal
 Count XI: North Carolina Constitution claim – grant dismissal
V. TIME FOR OBJECTIONS
The parties are hereby advised that pursuant to 28 U.S.C. § 636(b)(1)(C), and Rule 72 of
the Federal Rules of Civil Procedure, written objections to the proposed findings of fact,
conclusions of law, and recommendation contained herein may be filed within fourteen (14) days
of service of same. Responses to objections may be filed within fourteen (14) days after service
of the objections. Fed.R.Civ.P. 72(b)(2). Failure to file objections to this Memorandum and
Recommendation with the District Court constitutes a waiver of the right to de novo review by the
District Court. Diamond v. Colonial Life, 416 F.3d 310, 315-16 (4th Cir. 2005); United States v.
Benton, 523 F.3d 424, 428 (4th Cir. 2008). Moreover, failure to file timely objections will preclude
the parties from raising such objections on appeal. Id. “In order ‘to preserve for appeal an issue
in a magistrate judge’s report, a party must object to the finding or recommendation on that issue
with sufficient specificity so as reasonably to alert the district court of the true ground for the
objection.’” Martin v. Duffy, 858 F.3d 239, 245 (4th Cir. 2017) (quoting United States v. Midgette,
478 F.3d 616, 622 (4th Cir. 2007)).
IT IS SO RECOMMENDED.
Signed: January 8, 2024
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