Rohrer v. City of Gastonia et al

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:23-CV-00396-RJC-SCR
THIS MATTER is before the Court on Defendants’ Partial Motion to Dismiss (Doc. No.
15) and Defendants’ Motion to Strike Portions of Plaintiff’s Notice of Supplemental Authority
(Doc. No. 23).
This matter has been referred to the undersigned Magistrate Judge pursuant to 28 U.S.C. §
636(b)(1), and the Motions are now ripe for the Court’s consideration.
For the reasons set forth below, the undersigned respectfully recommends that Defendants’
Partial Motion to Dismiss be granted in part and denied in part. Further, Defendants’ Motion to
Strike is denied as moot.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Procedural Background
Plaintiff filed this action on June 30, 2023. (Compl., Doc. No. 1). Plaintiff’s Complaint
brings claims against (1) the City of Gastonia (the “City”) (Doc. No. 1 ¶ 5); (2) Cierra Brooks
(“Brooks”), a police officer with the Gastonia Police Department, in her individual capacity only
JOSHUA G. ROHRER,
Plaintiffs,
v. MEMORANDUM AND
RECOMMENDATION AND
ORDER
CITY OF GASTONIA, RICK
GOODALE, CIERRA BROOKS
J. DOE, MAURICE TAYLOR III,
Defendants.
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(Id. ¶ 6); (3) Maurice Taylor III (“Taylor”), a former police officer with the Gastonia Police
Department, in his individual capacity only (Id. ¶ 7); (4) Rick Goodale (“Goodale”), an employee
of the Gastonia Police Department who, upon information and belief, administered the
Department’s official Facebook page since August 2021, in his individual and official capacities
(Id. ¶ 8); and (5) J. Doe (“Doe”), an employee or employees of the Gastonia Police Department
who, upon information and belief, “posts or authorizes posting of statements on behalf of the
Department under color of law,” in Doe’s individual and official capacities (Id. ¶ 9).
Plaintiff’s Complaint brings ten claims against these Defendants as follows: Count I –
claim under 42 U.S.C. § 1983 for Violation of Free Speech against the City, Brooks, and Taylor
(Id. ¶¶ 176-184); Count II – claim under 42 U.S.C. § 1983 for Excessive Force against the City,
Brooks, and Taylor (Id. ¶¶ 185-191); Count III – claim under 42 U.S.C. § 1983 for Unreasonable
Seizure against the City and Taylor (Id. ¶¶ 192-198); Count IV – Failure to Accommodate under
the Americans with Disabilities Act (“ADA”) against the City (Id. ¶¶ 199-219); Count V – Failure
to Accommodate under the ADA against the City (Id.); Count VI – Disability Based
Discrimination under the ADA against the City (Id. ¶¶ 220-228); Count VII – Disability Based
Discrimination under the ADA against the City (Id.); Count VIII – claim under 42 U.S.C. § 1983
for Retaliation for Protected Speech and Petitioning against the City, Goodale, and Doe (Id. ¶¶
229-233); Count IX – Defamation against the City, Goodale, and Doe (Id. ¶¶ 234-241); and Count
X – Intentional Infliction of Emotional Distress against the City, Goodale, and Doe (Id. ¶¶ 242-
245).
The City, Brooks, and Taylor filed the Partial Motion to Dismiss, requesting that the Court
dismiss: (a) Plaintiff’s 42 U.S.C. § 1983 against Brooks and Taylor in their individual capacities
for Violation of Free Speech (Count I), Excessive Force (Count II), and Unreasonable Seizure
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against Taylor (Count III), arguing they are entitled to qualified immunity; (b) Plaintiff’s claims
under 42 U.S.C. § 1983 against the City for Excessive Force (Count II), Unreasonable Seizure
(Count III), and Retaliation for Protected Speech and Petitioning (Count VIII), arguing the
Complaint fails to plead a sufficient policy or custom causing the alleged constitutional violations;
and (c) any request for emotional distress damages on Plaintiff’s ADA claims, arguing they are
not recoverable under the statute (Counts IV-VII). (Doc. No. 15 at 1). The Motion has been fully
briefed and is now ripe for disposition.
B. Factual Background
The Court accepts the facts in Plaintiff’s Complaint as true for the purposes of considering
Defendants’ Partial Motion to Dismiss.
1. Plaintiff and His Service Dog
Plaintiff is a disabled veteran who has post-traumatic stress disorder (“PTSD”), depression,
anxiety, a panic attack disorder, and a hiatal hernia. (Doc. No. 1 ¶¶ 1, 4, 13-15). The U.S.
Department of Veterans Affairs (“VA”) prescribed Plaintiff a service dog to remain with him at
all times to help him manage these conditions. Id. ¶¶ 16, 18-19.
In October 2021, Plaintiff was homeless and living in Gastonia, North Carolina. Id. ¶ 1.
Plaintiff’s service dog, which he had for almost three years, was Sunshine. Id. ¶¶ 4, 17-19.
Sunshine wore a vest indicating that she was a service animal and that she should not be separated
from Plaintiff. Id. ¶ 21.
Plaintiff could not work due to his disabilities, but spent time walking around the City with
Sunshine and interacting with members of the Gastonia community, including sometimes standing
or walking in medians of streets and smiling and waving at drivers. Id. ¶¶ 22-24. Community
members on occasion would bring Plaintiff or Sunshine food, water, or money, but Plaintiff did
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not ask for money or any other donation during these interactions. Id. ¶ 23. Nor did Plaintiff
obstruct traffic or cause any problems. Id. ¶¶ 24-25. However, Plaintiff alleges police officers
with the Gastonia Police Department were abusive and cruel to Plaintiff, “viewing him as a
problem, an eyesore, or a blemish on the community, and they routinely harassed and mistreated
him,” including during an interaction with Taylor days before the encounter at issue in this action.
Id. ¶¶ 25-32.
2. October 13, 2021 Arrest
On October 13, 2021, an anonymous caller contacted 911, reporting that “one or more
people were standing at intersections ‘using dog[s] to make people feel sorry for them to give them
money.’” Id. ¶ 33. Within minutes of the call, Brooks approached Plaintiff about the call. Id. ¶
35. Brooks saw Plaintiff accept a donation from a passing vehicle and wrote him up for violating
the City’s anti-panhandling ordinances. Id. ¶ 36. Plaintiff disagreed with Brooks’ characterization,
arguing he had not solicited donations from anyone, and that someone offered a donation to him
without Plaintiff asking. Id. ¶ 37. Brooks called in Taylor who arrived on the scene and told
Plaintiff “if he continued to insist that he did nothing wrong, Taylor would separate [Plaintiff] and
Sunshine and give Sunshine to animal control.” Id. ¶ 39. Taylor made this threat despite his
knowledge that Plaintiff was a disabled veteran, with severe PTSD, and that he needed his service
dog to function. Id.
Brooks and Taylor demanded that Plaintiff provide his identification, but did not specify
any particular identification. Id. ¶ 40. Brooks told Plaintiff if he did not “hand over his
identification he would go to jail” for resisting public officer. Id. Plaintiff handed the officers his
federal veteran identification card (“veteran ID”), which identified Plaintiff. Id. ¶ 41. Brooks and
Taylor “refused to accept [Plaintiff’s] valid veteran ID and demanded that [Plaintiff] produce his
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state identification (“state ID”) instead.” Id. ¶ 43. Plaintiff’s state ID was expired and did not
contain his correct address, which he tried to communicate of the officers. Id. ¶ 44. Plaintiff
attempted to comply with the demand for his state ID by opening his wallet, grabbing his state ID,
and started to give it to Brooks and Taylor while explaining that it was not currently valid. Id. ¶
48. After only a few seconds, and while Plaintiff was attempting to comply, Taylor grabbed
Plaintiff, told him he was under arrest for resisting an officer, and, with Brooks, forced Plaintiff
against the patrol car. Id. ¶ 49. Brooks then took over the arrest, first pressing Plaintiff into the
car and then throwing him onto the pavement. Id. ¶ 50. At no point did Plaintiff physically resist
Brooks’ and Taylor’s restraints, but begged witnesses to help. Id. ¶ 51.
During these events, Sunshine stayed close to Plaintiff, but did not interfere with Brooks
and Taylor. Id. ¶ 52. Sunshine paced calmly around Plaintiff’s feet and then jumped onto the car
to be closer to his face, in keeping with her training. Id. According to Plaintiff, Sunshine did not
pose a threat, but Taylor drew his taser gun and pointed it at Sunshine. Id. ¶ 53. At that time,
Brooks stated that she did not believe Sunshine would bite her. Id. ¶ 54. Then Taylor said for the
first time, “He just bit me,” despite Sunshine being several feet away and facing away from Taylor.
Id. ¶¶ 55-56. Plaintiff contends that Sunshine did not bite Taylor and his statement was false. Id.
While Taylor pointed his taser gun at Sunshine, she jumped off the car and began to walk away
from Taylor on the median, but Taylor fired his taser at Sunshine and hit her. Id. ¶¶ 57-58.
Sunshine, injured and in distress, ran away. Id. ¶ 59. In response, Plaintiff “howled in terror.” Id.
¶ 61. Plaintiff screamed for help, but remained compliant. Id. ¶ 62. Brooks continued to hold
Plaintiff’s face against the pavement and handcuff him; Taylor kneeled on Plaintiff’s body. Id.
Plaintiff continually stated that he needed his dog, who was his service dog and medical device.
Id. ¶¶ 64-66. Brooks and Taylor ignored Plaintiff’s requests for Sunshine. Id. ¶ 67.
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During the encounter, more than a dozen police cars arrived on the scene, completely
blocking lanes and disrupting the flow of traffic. Id. ¶ 68. Plaintiff continued to “weep, sob for
help, and beg for Sunshine as the officers milled around.” Id. ¶ 69. “People who witnessed the
incident were outraged,” and disputed the claims made by Brooks and Taylor that Sunshine bit
them or that Plaintiff did anything to justify his arrest. Id. ¶¶ 73-79. Sunshine was nonaggressive
throughout the encounter, did not bite Taylor or anybody else, and later in the day Taylor said
Sunshine was “a very well-trained dog.” Id. ¶ 56. Brooks allegedly later claimed Sunshine was
about to bite her before Taylor tased the dog, despite Brooks statements during the interaction in
real-time that she did not believe Sunshine was going to bite her. Id. ¶ 79.
Plaintiff was transported to the jail and, upon information and belief, was charged with
soliciting alms, soliciting from a highway, and two misdemeanor counts of resisting arrest (the
“States Charges”). Id. ¶ 80. A state magistrate (the “State Magistrate”) set a $3,000 bond with a
condition that Plaintiff could not use a bondsperson or support from the community to pay the
bond, and instead was required to pay it himself or with funds from immediate family. Id. ¶ 85.
The States Charges were dismissed in July 2022.1 Id. ¶ 87.
When Plaintiff was released from jail, he and members of the community searched for
Sunshine. Id. ¶ 90. Sunshine, who prior to the tasing was trained to cross the street safely on her
own, ran into traffic and was struck and killed by a vehicle. Id. ¶ 91. Upon learning of Sunshine’s
death, Plaintiff experienced a severe mental health episode and ran head-on into traffic, attempting
to end his life. Id. ¶ 92. Plaintiff also began seeing a therapist twice a week and taking a range of
psychiatric medications for depression and suicidality. Id. ¶ 93. Overall, Plaintiff states that he
1 Plaintiff pled guilty to an unrelated charge of driving with a suspended license that occurred on a different day. (Doc.
No. 1 ¶ 88).
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sustained multiple physical, mental, and emotional injuries as a result of the encounter on October
13, 2021. Id. ¶¶ 70-72.
3. Social Media Posts After October 13, 2021
After the October 13, 2021 encounter, and while the State Charges against Plaintiff
remained pending, Brooks and the non-party State Magistrate allegedly disparaged Plaintiff on
social media and commented publicly on Facebook about the incident and the State Charges. Id.
¶¶ 94-98.
Plaintiff began sharing his experience, attending rallies, giving press interviews, and
petitioning for the body-worn camera footage to be released. Id. ¶¶ 99-103. After the body-worn
camera footage was ultimately released, Plaintiff shared the footage and his experience on various
social media platforms, including YouTube, his personal Facebook page, and in a Facebook group
entitled, “Support Joshua Rohrer and Sunshine Rae.” Id. ¶¶ 104, 106-107.
In response to Plaintiff’s activities and the public support for Plaintiff, Plaintiff maintains
the City used the Gastonia Police Department’s official Facebook page to “harass, bully, and
defame” him. Id. ¶¶ 109-110. The Gastonia Police Department’s Facebook page posted hundreds
of statements visible to the public that belittled and disparaged Plaintiff and spread false and
misleading information about the incident, often in response to comments by visitors to the page.
Id. ¶ 111-146; (Doc. No. 1-1). Plaintiff alleges that the City’s “campaign of harassment” was a
direct response to Plaintiff’s First Amendment activities, including petitioning for release of the
body-worn camera footage, speaking with the news media, fundraising to help with his expenses,
speaking at rallies, and sharing his own Facebook posts about the incident. (Doc. No. 1 ¶¶ 147-
150). These statements were allegedly made or approved by Goodale and/or Doe, employees of
the City who, upon information and belief, are authorized to speak on behalf of the City and its
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Police Department through the Department’s official Facebook page. Id. ¶¶ 112-113. Below are
examples of the types of social media posts Plaintiff maintains are false, misleading, and
disparaging:
(Doc. No. 1 ¶¶ 116-126; Doc. No. 1-1, at 2).
The City, Goodale, and Doe’s “campaign of harassment and defamation” have prolonged
and exacerbated Plaintiff’s emotional distress arising out of the October 13, 2021 incident, and
caused him severe emotional distress and psychological injuries. (Doc. No. 1 ¶ 153). Plaintiff
became unable to sleep for extended periods, and became obsessed with correcting the record and
protecting himself and Sunshine. Id.
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II. STANDARD OF REVIEW
In reviewing a Rule 12(b)(6) motion, “the court should accept as true all well-pleaded
allegations and should view the complaint in a light most favorable to the plaintiff.” Mylan Labs.,
Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993). The plaintiffs’ “[f]actual allegations must be
enough to raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007). “[O]nce a claim has been stated adequately, it may be supported by showing any
set of facts consistent with the allegations in the complaint.” Id. at 563. A complaint attacked by
a Rule 12(b)(6) motion to dismiss will survive if it contains enough facts to “state a claim to relief
that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550
U.S. at 570). “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.”
Id.
In Iqbal, the Supreme Court articulated a two-step process for determining whether a
complaint meets this plausibility standard. Id. at 678-79. First, the court identifies allegations
that, because they are no more than conclusions, are not entitled to the assumption of truth. Id. at
679; see also Anand v. Ocwen Loan Serv., LLC, 754 F.3d 195, 198 (4th Cir. 2014) (recognizing
the court does not accept as true legal conclusions couched as factual allegations). “Threadbare
recitals of the elements of a cause of action, supported by mere conclusory statements, do not
suffice.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555). Although the pleading
requirements stated in Rule 8 of the Federal Rules of Civil Procedure mark “a notable and generous
departure from the hyper-technical, code-pleading regime of a prior era . . . it does not unlock the
doors of discovery for a plaintiff armed with nothing more than conclusions.” Id. at 678-79.
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Second, to the extent there are well-pleaded factual allegations, the court assumes their
truth and then determines whether they plausibly give rise to an entitlement to relief. Id.
“Determining whether a complaint contains sufficient facts to state a plausible claim for relief will
. . . be a context-specific task that requires the reviewing court to draw on its judicial experience
and common sense.” Id. at 679. “[W]here the well-pleaded facts do not permit the court to infer
more than the mere possibility of misconduct, the complaint has alleged–but it has not ‘show[n]’–
‘that the pleader is entitled to relief,’” and therefore should be dismissed. Id. (quoting Fed. R.
Civ. P. 8(a)(2)).
The sufficiency of the factual allegations aside, “Rule 12(b)(6) authorizes a court to dismiss
a claim on the basis of a dispositive issue of law.” Neitzke v. Williams, 490 U.S. 319, 326 (1989).
Indeed, where “it is clear that no relief could be granted under any set of facts that could be
prove[n] consistent with the allegations . . . a claim must be dismissed.” Id. at 327 (quoting Hishon
v. King & Spalding, 467 U.S. 69, 73 (1984)).
III. DISCUSSION
A. Section 1983 Claims Against Brooks and Taylor In Individual Capacities
Under 42 U.S.C. § 1983,
[e]very person who, under color of any statute, ordinance, regulation, custom, or
usage, of any State . . . subjects, or causes to be subjected, any citizen of the United
States or other person within the jurisdiction thereof to the deprivation of any rights,
privileges, or immunities secured by the Constitution and laws, shall be liable to
the party injured in an action at law, suit in equity, or other proper proceeding for
redress.
42 U.S.C. § 1983. Thus, “[t]o 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 committed by a person acting under color of state law.” Mauler v. Arlotto, 777
F. App’x 59, 60 (4th Cir. 2019) (per curiam).
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However, “[w]hen a government official is sued in their individual capacity, qualified
immunity protects them ‘insofar as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.’” Sharpe v. Winterville
Police Dep’t, 59 F.4th 674, 682-83 (4th Cir. 2023) (quoting Pearson v. Callahan, 555 U.S. 223,
231 (2009)). Thus, “[a]n officer is entitled to qualified immunity unless he (1) ‘violated a federal
statutory or constitutional right, and (2) the unlawfulness of [his] conduct was clearly established
at the time.’” Hulbert v. Pope, 70 F.4th 726, 732 (4th Cir. 2023) (quoting District of Columbia v.
Wesby, 138 S. Ct. 577, 589 (2018)). The Court may consider these two prongs in any order. See
Pearson, 555 U.S. at 236. “A right can be clearly established by cases of controlling authority in
this jurisdiction or by a consensus of persuasive authority from other jurisdictions.” Sharpe, 59
F.4th at 683 (citing Owens ex rel. Owens v. Lott, 372 F.3d 267, 280 (4th Cir. 2004)). “Either way,
these sources ‘must have placed the statutory or constitutional question beyond debate.’” Id.
(quoting Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018)). The right must be “‘sufficiently clear
that a reasonable official would understand that what he is doing violates that right.’” Id. (quoting
Cannon v. Vill. of Bald Head Island, 891 F.3d 489, 497 (4th Cir. 2018)). In considering qualified
immunity, “the nature of the right allegedly violated must be defined at a high level of
particularity.” Occupy Columbia v. Haley, 738 F.3d 107, 121 (4th Cir. 2013) (quoting Rogers v.
Pendleton, 249 F.3d 279, 286 (4th Cir. 2001)) (internal quotation marks omitted).
1. Section 1983 First Amendment Claim Against Brooks and Taylor (Count I)
Plaintiff brings a § 1983 claim alleging Defendants City, Brooks, and Taylor violated the
First Amendment by enforcing two allegedly unconstitutional City ordinances, specifically
Gastonia Ordinances §§ 5-17 and 6-228 (the “Ordinances”). (Doc. No. 1 ¶¶ 176-184). Defendants
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seek dismissal of Plaintiff’s § 1983 First Amendment claim against Brooks and Taylor only,
arguing that they are entitled to qualified immunity. The Court agrees.
“The First Amendment, applicable to the States through the Fourteenth Amendment,
prohibits the enactment of laws ‘abridging the freedom of speech.’” Reed v. Town of Gilbert
Ariz., 57 U.S. 155, 163 (2015) (quoting U.S. CONST. amend. I). The First Amendment protects
panhandling and solicitation of charitable contributions. Reynolds v. Middleton, 779 F.3d 222,
225 (4th Cir. 2015). Public streets and medians are traditional public forums. Id. The
government’s authority to regulate speech in a traditional public forum is “limited, though not
foreclosed,” and such limitations depend on whether speech regulation is content-neutral or
content-based. Id.; Reed, 57 U.S. at 162-173.
“Content-neutral time, place, and manner regulations of speech in traditional public forums
are subject to intermediate scrutiny—that is, the restrictions must be ‘narrowly tailored to serve a
significant government interest and leave open ample alternative channels of communication.’”
Id. at 225-26 (quoting Clatterbuck v. City of Charlottesville, 708 F.3d 549, 555 (4th Cir.2013),
abrogated by Reed, 576 U.S. 155); Occupy Columbia, 738 F.3d at 122. On the other hand, content-
based restrictions—those that limit speech based on its message, ideas, subject matter, or its
content—are presumptively unconstitutional. Reed, 576 U.S. at 163. Content-based restrictions
“can only stand if they survive strict scrutiny, which requires the Government to prove that the
restriction furthers a compelling interest and is narrowly tailored to achieve that interest.” Id. at
171 (quoting Ariz. Free Enter. Club’s Freedom Club PAC v. Bennett, 564 U.S. 721, 734 (2011))
(internal quotation marks omitted). In determining whether a law is content-neutral or content-
based, courts must consider the law on its face; a law that is facially content-based is subject to
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strict scrutiny. Id. at 165-66. A law may also be content-based if the purpose or justification of
the law is content-based. Id. at 166.
In this case, Plaintiff argues that the Ordinances are unconstitutional content-based
restrictions on speech and that Brooks and Taylor violated his First Amendment rights in enforcing
the allegedly unconstitutional Ordinances. The Ordinances at issue stated on October 13, 2021:
Sec. 5-17. - Begging and solicitation, prohibited conduct.
(a) It shall be unlawful for any person to ask, beg, solicit, or offer to work for money
or any other thing having value by (i) accosting another, or (ii) forcing oneself upon
the company of another.
(b) For purposes of this section, “ask, beg, solicit, or offer to work for” shall include,
without limitation, the spoken, written, or printed word or such other acts as are
conducted in furtherance of the permitted activity.
(c) For purposes of this section, “accosting” shall be defined as approaching or
speaking to an individual or individuals in such manner as would cause a reasonable
person to fear imminent bodily harm or the commission of a criminal act upon his
or her person, or upon property in his or her immediate possession.
(d) For purposes of this section, “forcing oneself upon the company of another”
shall be defined as (i) continuing to request, beg, solicit, or offer to work in close
proximity to the individual addressed after the person to whom the request is
directed has made a negative response; or (ii) blocking the passage of the individual
addressed whether such person be within or without a motor vehicle or upon any
other conveyance; or (iii) otherwise engaging in conduct which could reasonably
be construed as intended to compel or force a person to accede to such demands.2
Sec. 6-228. - Soliciting from the street or median strip prohibited.
(a) It shall be unlawful for any person to stand, sit or loiter in any street or highway,
including the shoulders or median strip but excluding sidewalks, and to stop or
attempt to stop any vehicle for the purpose of soliciting or accepting contributions
from the occupants of any vehicle, or for the purpose of selling or distributing
merchandise or literature to the occupants of any vehicle.
(b) It shall be unlawful for any person to stand, sit or loiter in any street or highway,
including the shoulders or median strip but excluding sidewalks, and to solicit or
accept contributions from the occupants of any stopped vehicle, or to sell or
distribute merchandise or literature to the occupants of any stopped vehicle.3
2 Gastonia, N.C. Ordinance § 5-17,
https://library.municode.com/nc/gastonia/codes/code_of_ordinances/388676?nodeId=PTIICOOR_CH5GEOF_S5-
17BESOPRCO.
3 Gastonia, N.C. Ordinance § 6-228,
https://library.municode.com/nc/gastonia/codes/code_of_ordinances/388676?nodeId=PTIICOOR_CH6VETRTR_A
RTVIMI_S6-228SOSTMESTPR.
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The parties disagree about whether these Ordinances are content-neutral or content-based
restrictions. However, at this time, the Court need not reach this issue or decide whether these
Ordinances are unconstitutional. The City does not move to dismiss the First Amendment claim
against it, and Brooks and Taylor argue the claim against them individually should be dismissed
because they have qualified immunity. The Court agrees after considering the second prong of
qualified immunity. Pearson, 555 U.S. at 236 (stating that courts may consider the qualified
immunity prongs in any order based on the circumstances of the case).
The Court assumes arguendo that the Ordinances are unconstitutional for the purpose of
considering the second prong of the qualified immunity analysis.4 Even assuming the Ordinances
are unconstitutional, the issue is whether on October 13, 2021, it was sufficiently clear to give fair
warning to a reasonable officer that the enacted Ordinances were unconstitutional restrictions on
speech in violation of the First Amendment. The answer here is no.
As the Supreme Court announced in Michigan v. DeFillippo, when there is no controlling
precedent that a specific law is or is not constitutional, “[t]he enactment of a law forecloses
speculation by enforcement officers concerning its constitutionality,” with one exception if the law
is “so grossly and flagrantly unconstitutional that any person of reasonable prudence would be
bound to see its flaws.” 443 U.S. 31, 38 (1979); Harrison v. Deane, 426 F. App’x 175, 179-181
(4th Cir. 2011). In other words, a prudent officer is not required to anticipate that a court would
hold an enacted ordinance is unconstitutional, unless is it so grossly and flagrantly unconstitutional
that a reasonable person would know. DeFillippo, 443 U.S. at 37-38. “Th[e] exception has been
employed sparingly,” and “does not apply merely because a person alleges a violation of his First
Amendment rights.” Harrison, 426 F. App’x at 179-80. This is because “[s]ociety would be ill-
4 The Court expresses no opinion on the constitutionality of the Ordinances at this time.
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served if its police officers took it upon themselves to determine which laws are and which are not
constitutionally entitled to enforcement.” DeFillippo, 443 U.S. at 38.
While DeFillippo addresses suppression of evidence, not qualified immunity, courts
regularly look to DeFillippo when deciding issues of qualified immunity. See e.g., Villarreal v.
City of Laredo, Tex., 94 F.4th 374 (5th Cir. 2024); Cooper v. Dillon, 403 F.3d 1208 (11th Cir.
2005); Citizens in Charge, Inc. v. Husted, 810 F.3d 437 (6th Cir. 2016) (“So far as the parties’
research has revealed and so far as our own research has uncovered, the Supreme Court has never
denied qualified immunity to a public official who enforced a properly enacted statute that no court
had invalidated. This indeed would seem to be the paradigmatic way of showing objectively
reasonable conduct by a public official” (emphasis in original)); Elabanjo v. Bellavance, No.
1:11CV349, 2014 WL 222097 (M.D.N.C. Jan. 21, 2024); Hetherington v. Madden, No. 3:21-cv-
671-MCR-EMT, 2021 WL 4958094 (N.D. Fla. Aug. 17, 2021); May v. Morgan Cnty., 499 F.
Supp. 3d 1294, 1301-06 (M.D. Ga. 2020).
The parties do not direct the Court to any authority declaring these specific Ordinances at
issue in this case to be unconstitutional nor is the Court aware of such authority. Since the
Ordinances had not previously been declared unconstitutional, Brooks and Taylor were able to
presume that the enacted Ordinances were constitutional unless the Ordinances were so grossly
and flagrantly unconstitutional that any reasonable officer would know.
Plaintiff points to Clatterbuck,5 Reynolds,6 and Reed,7 for his position that it was clearly
established that the Ordinances were unconstitutional content-based restrictions and unable to pass
strict scrutiny. However, Clatterbuck, a 2013 decision, applied a “pragmatic rather than formalistic
5 Clatterbuck v. City of Charlottesville, 708 F.3d 549 (4th Cir.2013), abrogated by Reed, 576 U.S. 155.
6 Reynolds v. Middleton, 779 F.3d 222 (4th Cir. 2015).
7 Reed v. Town of Gilbert Ariz., 57 U.S. 155 (2015).
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approach to evaluating content neutrality” to an anti-panhandling ordinance, which was later, in
effect, rejected in Reed. 708 F.3d at 551-58. In Reynolds, a 2015 decision issued before Reed,
the Fourth Circuit considered an anti-panhandling ordinance that the district court found was
content-neutral, a decision that was not challenged and expressly not considered by the Fourth
Circuit, while the Fourth Circuit also noted that the issue was before the Supreme Court in the yet
decided Reed. 779 F.3d 222, 226 & n.1 (4th Cir. 2015). Reed laid out the correct standards for
determining content-based restrictions, and Reed specifically addressed the constitutionality of an
ordinance restricting signage, not panhandling or solicitation. Reed provided clarity on
considering whether ordinances are content-based or content-neutral, but did not directly address
a similar anti-panhandling ordinance as those at issue in this case such that it would put a
reasonable officer on notice that the enacted Ordinances were grossly and flagrantly
unconstitutional that they should know of their unconstitutionality.
The Court recognizes that Reed changed the analysis in cases similar to Clatterbuck and
Reynolds, and in October 2021, it does not appear that the Fourth Circuit had directly addressed
whether such anti-panhandling or solicitation ordinances were content-based or content-neutral or
their constitutionality. Indeed, even the represented parties in this case dispute whether the
Ordinances are content-neutral or content-based restrictions. In light of the Supreme Court’s
directive in DeFillippo, a reasonable officer enforcing a presumptively constitutional ordinance
should not be required to complete the legal gymnastics needed to determine the constitutionality
of these Ordinances.8
8 Plaintiff’s Complaint alleges that the one of the City’s police department’s priorities was to enforce its anti-
panhandling ordinances and its officers “had ‘received directions’ and had been ‘told’ to prohibit homeless people
from panhandling.” (Doc. No. 1 ¶¶ 169, 174-175). As observed in DeFillippo, a police officer’s “lot is not so unhappy
that he must choose between being charged with dereliction of duty” if he does not enforce a presumptively
constitutional ordinance, or “being mulcted in damages if he does.” 443 U.S. at 38 (quoting Pierson v. Ray, 386 U.S.
547, 555 (1967)).
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Plaintiff also points to cases from other circuits and districts concluding that similar
ordinances are content-based and subject to strict scrutiny. (Doc. No. 19 at 15); see also Rodgers
v. Bryant, 942 F.3d 451 (8th Cir. 2019); Norton v. City of Springfield, 806 F.3d 411 (7th Cir.
2015); Planet Aid v. City of St. Johns, MI, 782 F.3d 318 (6th Cir. 2015). But these authorities do
not constitute a clear “consensus of persuasive authority” placing the question “beyond debate.”
Booker v. S.C. Dep’t of Corrs., 855 F.3d 533, 544-545 (4th Cir. 2017); Sharpe, 59 F.4th at 683.
Even if the Ordinances were content-based restrictions subject to strict scrutiny, it would still
require further legal analysis on the part of Brooks and Taylor as to whether the Ordinances would
pass strict scrutiny. Hetherington v. Madden, No. 3:21-cv-671-MCR-EMT, 2021 WL 4958094
(N.D. Fla. Aug. 17, 2021) (noting that defendants “were not required to speculate as to whether
this attempt at tailoring would survive strict scrutiny”). In Reynolds, while based on the evidence
before the Fourth Circuit it did not find anti-panhandling ordinances passed intermediate scrutiny,
ultimately the Fourth Circuit remanded the case for the county to gather and present evidence on
whether an anti-panhandling ordinance would pass intermediate scrutiny. 779 F.3d at 232 (“[W]e
believe the County should have an opportunity to gather and present evidence to satisfy
McCullen’s standard.” (citing McCullen v. Coakley, 134 S. Ct. 2518 (2014))).9
For these reasons, the Court finds that the enacted Ordinances were not so grossly and
flagrantly unconstitutional that any reasonable officer would know their flaws. As such, it was not
9 Plaintiff also cites to cases post-Reed denying qualified immunity to officers enforcing anti-panhandling laws.
Dumiak v. Vill. of Downers Grove, 475 F. Supp. 3d 851, 855 (N.D. Ill. 2020); Henagan v. City of Lafayette, No. 21-
CV-03946, 2022 WL 4553055, at *10 (W.D. La. Aug. 16, 2022), objections overruled, 2022 WL 4546721 (W.D. La.
Sept. 27, 2022). However, those cases are non-binding, and the undersigned has detailed herein the cases that it finds
persuasive based on the facts of this case. See also Vaduva v. City of Xenia, 780 F. App’x 331 (6th Cir. 2019) (finding
officers entitled to qualified immunity for enforcing an anti-panhandling law when relying on DeFillippo principles,
and also recognizing the facts occurred before Reed, but not stating how the court would rule if the events occurred
after Reed).
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clearly established that the Ordinances were unconstitutional in October 2021, and Brooks and
Taylor are entitled to qualified immunity on Plaintiff’s violation of free speech claim.
Accordingly, the undersigned respectfully recommends that Defendants’ Motion be
granted with respect to Plaintiff’s First Amendment claim (Count I) as to Brooks and Taylor only.
2. Section 1983 Excessive Force Claim Against Brooks and Taylor (Count II)
Plaintiff’s second cause of action alleges Defendants City, Brooks, and Taylor violated the
Fourth Amendment when they used excessive force during his arrest. (Doc. No. 1 ¶¶ 185-191).
Defendants’ Motion seeks dismissal of the excessive force claim against Brooks and Taylor,
arguing they are entitled to qualified immunity. The Court disagrees at this stage in the litigation.
“The Fourth Amendment prohibits police officers from ‘using excessive force to seize a
free citizen.’” Hupp v. Cook, 931 F.3d 307, 321 (4th Cir. 2019). “Rather, police officers are
constitutionally permitted to use only that force which is reasonable under the
circumstances.” Id. In considering excessive force, courts ask ‘whether a reasonable officer in
the same circumstances would have concluded that a threat existed justifying the particular use of
force.’” Id. at 321-22 (quoting Elliott v. Leavitt, 99 F.3d 640, 642 (4th Cir. 1996)). “In
determining whether excessive force was used, we consider the facts ‘from the perspective of a
reasonable officer on the scene,’ without the ‘20/20 vision of hindsight,’” and without considering
the officer’s intent or motivation. Id. (quoting Graham v. Connor, 490 U.S. 386, 397
(1989)). “That inquiry is dispositive: When an officer carries out a seizure that is reasonable,
taking into account all relevant circumstances, there is no valid excessive force claim.” Cnty. Of
Los Angeles, Calif. v. Mendez, 581 U.S. 420, 428 (2017).
The inquiry “is guided by the framework of Graham v. Connor, 490 U.S. 386
(1989).” Nazario v. Gutierrez, 103 F.4th 213, 234 (4th Cir. 2024). Under Graham, “there are three
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factors central to the inquiry: ‘the severity of the crime at issue, whether the suspect pose[d] an
immediate threat to the safety of the officers or others, and whether he [was] actively resisting
arrest or attempting to evade arrest by flight.’” Id. (quoting Graham, 490 U.S. at 396). In the
Fourth Circuit, courts also consider a fourth factor, “‘the extent of the plaintiff’s injuries.’” Id.
(quoting Hupp, 931 F.3d at 322)).
Accepting the facts in the Complaint as true, the severity of the crime here was minimal,
as Plaintiff was suspected of and charged with violating anti-panhandling ordinances. Plaintiff
was also allegedly charged with resisting officer, a misdemeanor. However, the facts surrounding
Plaintiff’s resistance are disputed, and further development is needed to determine what transpired.
For example, Plaintiff contends that he complied with Brooks and Taylor’s request for his
identification by providing his veteran ID. (Doc. No. 1 ¶ 41). When Brooks and Taylor would
not accept Plaintiff’s veteran ID, Plaintiff also attempted to comply with their request for his state
ID by taking it out of his wallet and explaining that it was not valid, but only seconds later Taylor
grabbed Plaintiff and forced him against the patrol car. Id. ¶¶ 43-49. Brooks then pressed Plaintiff
into the car and threw him onto the pavement. Id. ¶ 50. Brooks held Plaintiff’s face against the
pavement and handcuffed him while Taylor kneeled on his body. Id. ¶ 62. According to Plaintiff,
at no point did he physically resist Brooks and Taylor, only verbally questioning officers and
yelling for help and for his dog. Id. ¶¶ 50-51. Plaintiff alleges several different injuries caused by
the force used. Id. ¶¶ 70-72. Defendants may dispute these facts, but the Court cannot engage in
factual determination at this early stage.
Thus the Court concludes that Plaintiff has stated a claim for excessive force to overcome
qualified immunity at the motion to dismiss stage. Further development is needed to determine
whether a reasonable officer in the same circumstances would have concluded that a threat existed
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justifying the particular force used and whether the right was clearly established. Defendants’
argument discusses factual disputes erroneously claimed to not be in dispute and which are not
proper for the Court to consider at this stage.10 The cases that Defendants cites are also not to the
contrary because they were considered at the summary judgment stage applying a different
standard than the Court is bound to apply at this motion to dismiss stage and turn on the specific
facts of each case.
Accordingly, the undersigned respectfully recommends that Defendants’ Motion be denied
with respect to Plaintiff’s excessive force claim against Brooks and Taylor individually (Count II)
to be re-raised at a later stage as appropriate.
3. Section 1983 Unreasonable Seizure of Sunshine Against Taylor (Count III)
Plaintiff’s third cause of action alleges Defendants City and Taylor violated the Fourth
Amendment when Taylor unreasonably seized Plaintiff’s service dog Sunshine. Defendants move
to dismiss this claim against Taylor, arguing he is entitled to qualified immunity.
The Fourth Amendment protects “[t]he right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and seizures.” U.S. CONST. amend. IV.
Privately owned dogs are “effects” under the Fourth Amendment. Ray v. Roane, 948 F.3d 222,
227 (4th Cir. 2020) (citing Altman v. City of High Point, N.C., 330 F.3d 194, 203-05 (4th Cir.
2003)). Unreasonable force against a dog which interferes with an individual’s possessory interest
10 Throughout Plaintiff’s Complaint, he cites to and refers to the body-worn camera footage which is available online,
including providing the link to the footage. Defendants also discuss the body-worn camera footage throughout their
briefing. For purposes of the motion to dismiss, the Court accepts Plaintiff’s allegations in the Complaint as true.
However, even in viewing the body-worn camera footage, the Court concludes that factual questions remain. The
footage does not directly contradict the allegations at issue here nor is the footage entirely consistent with Defendants’
version of the facts as argued, leaving clear factual questions for another day and stage of litigation. Lawhon v. Mayes,
Nos. 20-1906, 20-1907, 20-1908, 2021 WL 5294931, at *1 (4th Cir. Nov. 15, 2021) (unpublished) (“In addition to the
facts as stated in the complaint, the district court correctly considered the body camera footage in deciding whether to
grant the motions to dismiss.”). The body-worn camera footage is available at:
https://gastonianc.gov/index.php?option=com_content&view=article&id=1876.
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can be a seizure under the Fourth Amendment. Altman, 330 F.3d at 204-05; Ray I, 948 F.3d at
227-230 (“[P]rivately owned dogs are protected under the Fourth Amendment, and . . . the
reasonableness of the seizure of a dog depends on whether the governmental interest in safety
outweighs the private interest in a particular case.”); Ray v. Roane, 93 F.4th 651, 654-58 (4th Cir.
2024).
“A claim that a law enforcement officer improperly used force to seize a plaintiff’s
effects—including a dog—is analyzed under the reasonableness standard of the Fourth
Amendment.” Lee v. Fort Mill, 725 F. App’x 214, 218 (4th Cir. 2018). “Under the basic
reasonableness calculus, a court must balance the nature and quality of the intrusion on the
individual’s Fourth Amendment interest against the importance of the governmental interests
alleged to justify the intrusion.” Id. (quoting Altman, 330 F.3d at 205). “[P]rivate interests in
dogs—and family pets especially—are highly significant.” Ray I, 948 F.3d at 227 (quoting
Altman, 330 F.3d at 205). “Likewise, the government undoubtedly has a strong public interest in
protecting citizens and officers from dogs that may be dangerous or otherwise a source of public
nuisance.” Id. (citing Altman, 330 F.3d at 205-06). “In the case of a household pet, ‘the use of
deadly force . . . is reasonable only if the pet poses an immediate danger and the use of force is
unavoidable.’” Lee, 725 F. App’x at 218 (quoting Viilo v. Eyre, 547 F.3d 707, 710 (7th Cir. 2008))
(alterations in original). “[T]he calculus of reasonableness must embody allowance for the fact
that police officers are often forced to make split-second judgments—in circumstances that are
tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular
situation.” Ray I, 948 F.3d at 227 (quoting Altman, 330 F.3d at 205). In weighing the competing
interests, courts must focus on the circumstances confronting the officer at the moment the force
is used. Id.
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Here, Plaintiff’s Complaint alleges, among other things, that Taylor tased Sunshine causing
Sunshine to run away and get struck and killed by a vehicle. (Doc. No. 12 ¶¶ 57-60, 91).
According to the Complaint, Taylor knew Sunshine was well-trained, Sunshine was nonaggressive
throughout the encounter, and did not otherwise behave in a threatening manner. Id. ¶¶ 52-58,
195. Brooks told Taylor that she did not believe Sunshine was going to bite her before Taylor
tased Sunshine. Id. ¶¶ 54, 195. Sunshine did not bite Taylor or anyone else, and neither Taylor
nor any other officers made any attempt to secure Sunshine after she was tased and ran away
toward a populated shopping center. Id. ¶¶ 56-59, 195. Based on these facts, Plaintiff’s Complaint
alleges sufficient facts to state an unreasonable seizure claim to overcome qualified immunity at
this stage.
Defendants’ argument that Taylor is entitled to qualified immunity relies entirely on
Defendants’ version of the facts, which contradict the facts in Plaintiff’s Complaint. For example,
Defendants contend Sunshine was a threat and allegedly bit Taylor before he tased her. Defendants
state, that bite “is evidenced in real-time by Taylor’s cry in response thereto” and “most fatal to
Plaintiff’s allegations is the very fact that Defendant Taylor exclaims that ‘[H]e bit me’ in reference
to Plaintiff’s service animal.” (Doc. No. 21, at 11-12). But Plaintiff’s Complaint alleges the
opposite, that “Sunshine was nonaggressive throughout the encounter and did not bite Defendant
Taylor or anyone else,” and that other people that witnessed the incident disputed the claims made
by Taylor that Sunshine bit him. (Doc. No. 12 ¶ 56, 73-79). The Court cannot disregard the facts
in Plaintiff’s Complaint and accept Defendants’ version of the facts when considering a motion to
dismiss.11 Ray I, 948 F.3d at 227-30 (reversing district court’s dismissal and grant of qualified
11 The body-worn camera footage also does not clearly contradict Plaintiff’s version of the facts in the Complaint on
this issue. Other than the statements made by Taylor, the body-worn camera footage does not clear up the factual
dispute of whether Sunshine actually bit Taylor or was otherwise aggressive. This Court cannot weigh evidence or
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immunity, noting “[t]he problem with Roane’s argument, and thus with the district court’s decision
adopting it, is that it requires us to ignore certain factual allegations in Ray’s complaint and to
draw reasonable inferences against Ray on a motion to dismiss . . . . The district court’s extensive
reliance on cases decided on summary judgment underscores our conclusion that the district court
did not fully credit the allegations in Ray’s complaint and the inferences arising therefrom.”).
Plaintiff’s unreasonable seizure claim and Taylor’s request for qualified immunity must be
considered under a reasonable analysis, considering competing interests, including what if any
threat or danger Sunshine posed during the interaction. Based on the facts alleged in the
Complaint, the Court concludes that Plaintiff stated a claim and further development is needed to
determine whether the officers are entitled to qualified immunity. For these reasons, the
undersigned respectfully recommends that Defendants’ Motion be denied with respect to
Plaintiff’s unreasonable seizure claim against Taylor individually (Count II) to be re-raised at a
later stage as appropriate.
B. Section 1983 Claims Against the City
Plaintiff brings, among others, claims against the City for excessive force, unreasonable
seizure, and First Amendment retaliation. Defendants ask the Court to dismiss these claims against
the City, arguing the Complaint fails to allege sufficient facts supporting an official policy or
custom attributable to the City causing the constitutional violations.
“Municipalities are ‘persons’ within the meaning of § 1983.” Franklin v. City of Charlotte,
64 F.4th 519, 535 (4th Cir. 2023) (quoting Monell v. Dep’t of Soc. Servs. of N.Y.C., 436 U.S. 658,
690 (1978)). Thus, a suit may be brought against a municipality for a federal constitutional
make a credibility determination as to Taylor’s statements made in body-worn camera footage that Sunshine bit him,
Plaintiff’s allegations, and other witnesses’ allegations, at the motion to dismiss stage. Lawhon, 2021 WL 5294931,
at *1.
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deprivation “when the municipality undertook the allegedly unconstitutional action pursuant to an
‘official policy’ or ‘custom.’” Starbuck v. Williamsburg James Cnty. Sch. Bd., 28 F.4th 529, 532-
33 (4th Cir. 2022) (quoting Monell, 436 U.S. at 690-91). Monell liability under § 1983 cannot be
predicated upon a respondeat superior theory. Franklin, 64 F.4th at 535. “Liability arises only
when the offensive acts are taken in furtherance of municipal policy or custom.” Jones v.
McComas, No. 1:23-cv-215-KDB, 2023 WL 7174240, at *2 (W.D.N.C. Oct. 31, 2023).
There are three elements for Monell liability. Id. “First, the plaintiff must plausibly allege
a constitutional harm that stems from the acts of a municipal employee ‘taken in furtherance of
some municipal policy or custom.’” Id. (quoting Milligan v. City of Newport News, 743 F.2d 227,
229 (4th Cir. 1984)). “Second, the plaintiff must allege facts showing that the policy’s creation is
fairly attributable to the municipality.” Jones, 2023 WL 7174240, at *2; Spell v. McDaniel, 824
F.2d 1380, 1389 (4th Cir. 1987). “Third, the plaintiff must allege an affirmative causal link
between the policy or custom, and the particular injury suffered by the plaintiff.” Jones, 2023 WL
7174240, at *2; Franklin, 64 F.4th at 536-37.
With respect to the first element,
[A] policy or custom for which a municipality may be held liable can arise in four
ways: (1) through an express policy, such as a written ordinance or regulation; (2)
through the decisions of a person with final policymaking authority; (3) through an
omission, such as a failure to properly train officers, that ‘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.’
Starbuck, 28 F.4th at 533 (quoting Lytle v. Doyle, 326 F.3d 463, 471 (4th Cir. 2003)). “No matter
which of these paths [to show a policy or custom that] a plaintiff takes, the ‘official policy’ itself
must ‘inflict’ the alleged injury for the municipality to be liable under § 1983.” Franklin, 64 F.4th
at 536 (quoting Monell, 436 U.S. at 694) (alterations in original omitted).
The existence of a custom or usage may be found in persistent and widespread practices,
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which although not authorized by written law, are so permanent and well-settled as to have the
force of law. Spell, 824 F.2d at 1387 (quoting Monell, 436 U.S. at 690-91). “Custom and usage,
in the sense of persistent and widespread . . . practices by municipal agents and employees, may
be attributed to a municipality when the duration and frequency of the practices warrants a finding
of either actual or constructive knowledge by the municipal governing body that the practices have
become customary among its employees” and “their failure, as a matter of specific intent or
deliberate indifference, thereafter to correct or stop the practices.” Id. at 1387, 1391. “Actual
knowledge may be evidenced by recorded reports to or discussions by a municipal governing
body.” Id. at 1387. “Constructive knowledge may be evidenced by the fact that the practices
have been so widespread or flagrant that in the proper exercise of its official responsibilities the
governing body should have known of them.” Id. Constructive knowledge may be inferred from
the widespread extent of the practices, general knowledge of their existence, manifest
opportunities and official duty of responsible policymakers to be informed, or combinations of
these. Id. at 1391. “The inculpating knowledge, whether actual or constructive, may be either that
of the municipal governing body itself, or of municipal officials having final policymaking
authority in municipal law enforcement matters.” Id. Sporadic or isolated violations will not give
rise to liability. Owens v. Balt. City State’s Att’ys Off., 767 F.3d 379, 403 (4th Cir. 2014).
“Rather, there must be ‘numerous particular instances’ of unconstitutional conduct in order to
establish a custom or practice.” Lytle v. Doyle, 326 F.3d 463, 473 (4th Cir. 2003) (quoting Kopf
v. Wing, 942 F.2d 265, 269 (4th Cir.1991)).
Plaintiff’s Complaint sufficiently alleges excessive force, unreasonable seizure, and First
Amendment retaliation claims attributable to the City with a causal link to the alleged violations,
based on the City’s alleged custom and usage of hostility towards and unwarranted force during
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interactions with people experiencing homelessness and condonation of social media posts. The
Complaint points to one of the City’s police department’s goals for the 2022 fiscal year involving
deterring “‘homeless from congregating in open areas that are visible’ to passing motorists and
businesses throughout the city.” (Doc. No. 12 ¶ 170). It further alleges the City’s police
department “aggressively arrests and seeks prolonged detention of people experiencing
homelessness for trivial or fabricated offenses,” and has successfully advocated for an increase of
the criminal penalty for the anti-panhandling ordinance. Id. ¶¶ 29-30, 157-164, 169, 171-175.
According to the Complaint, days before the October 13, 2021 incident, Plaintiff interacted with
Taylor during which Taylor allegedly told Plaintiff that the City’s “officers had ‘received
directions that we’re not supposed to have people in medians, like at the intersections of the
highways’ and asserted ‘I’m doing what I’m being told to do.’” Id. ¶ 29. At that time, Plaintiff
“said that other police officers would smile at him or offer him money, Taylor responded, ‘We’re
not even supposed to do that, because that’s against policy.’” Id. ¶ 30. In addition, Plaintiff’s
Complaint points to hundreds of social media posts visible to the public for over many months
made by the Gastonia Police Department’s official Facebook which Plaintiff contends are
belittling, disparaging, and provide false information about Plaintiff and the incident. Id. ¶¶ 109-
146, 229-233; (Doc. No. 1-1). These allegations, taken together and as true under the relevant
standard, are sufficient to allege a policy or custom attributable to the City and with a causal link
to the alleged First and Fourth Amendment constitutional violations to survive a motion to dismiss.
For these reasons, under the Rule 12(b)(6) standard the undersigned is tasked with
applying, Plaintiff has alleged sufficient facts to support his claims against the City, including an
official policy or custom attributable to the City causally linked to the alleged violations.
Accordingly, the undersigned respectfully recommends that Defendants’ Motion be denied with
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respect to Plaintiff’s excessive force (Count II), unreasonable seizure (Count III), and First
Amendment retaliation (Count VIII) claims against the City.12
C. ADA Claims For Emotional Distress Damages
Plaintiff’s fourth, fifth, sixth, and seventh causes of action bring claims against the City
under Title II of the ADA. Defendants move to dismiss any request for emotional distress damages
for these claims. The Court agrees emotional distress damages are unavailable on Plaintiff’s ADA
claims, but at this stage, the claims should not be dismissed in their entirety because Plaintiff may
have other compensable damages.
Defendants rely on Cummings v. Premier Rehab Keller, P.L.L.C., 596 U.S. 212 (2022). In
Cummings, the Supreme Court held that emotional distress damages are not recoverable in private
actions to enforce the antidiscrimination provisions of Spending Clause legislation, specifically
the Rehabilitation Act or the Affordable Care Act. Id. at 217-30. In so holding, the Supreme Court
reasoned that the relationship between the federal government and a recipient of federal funds is
analogous to a contractual relationship. Id. As such, in the face of a statute that is silent on the
issue of emotional distress damages, federal funding recipients do not have clear notice that they
would face emotional distress damages in a private action to enforce Spending Clause statutes
because emotional distress damages are not traditionally available in breach of contract actions.
12 To the extent Plaintiff attempts to attribute the excessive force and unreasonable seizure claims to the City by
claiming the City ratified the excessive force and unreasonable seizure in social media posts about the October 13,
2021 encounter after the encounter occurred, that theory fails as to those claims only. Franklin, 64 F.4th at 536-37
(concluding city was not liable under § 1983 for officer’s shooting of plaintiff where final policymaker’s “post-facto
approval of an internal shooting investigation cannot possibly have caused the constitutional violation” and observing
that reversing the decision “cannot undo what is done.”). Plaintiff’s Complaint does not allege a causal link between
the alleged constitutional violations of excessive force and unreasonable seizure that occurred on October 13, 2021,
and social media posts made about the encounter, after the encounter, because those social media posts “cannot
possibly have caused” the prior in time alleged excessive force and unreasonable seizure. Id. Plaintiff’s reliance on
Starbuck does not dictate a different result because Starbuck is factually distinguishable. 28 F.4th at 533-35 (finding
school board’s approval of student suspension was “the moving force behind the asserted constitutional violation,”
and caused the suspension to remain on the student’s permanent record but could be removed).
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Id. at 217-230. Since Cummings, the Honorable Robert J. Conrad has applied Cummings in the
Title IX context when ruling on a motion in limine, wherein the Court excluded evidence of
emotional distress damages as it related to the plaintiff’s Title IX claim only. See Doe v. Charlotte
Mecklenburg Bd. Of Educ., No. 3:18-cv-586-RJC-SCR (Doc. No 282 at 4) (W.D.N.C. Jan. 11,
2023).
The Cummings decision relied on the reasoning in Barnes v. Gorman, 536 U.S. 181 (2002),
for its contract analogy. The Barnes decision considered whether punitive damages may be
awarded under the ADA. Id. at 183. In reaching the conclusion that punitive damages may not be
awarded, the Supreme Court ultimately looked to the remedies available in a private cause of action
brought under Title VI of the Civil Rights Act of 1964 – Spending Clause legislation. Id. at 185.
It did so because the ADA “declares that the ‘remedies . . . set forth in [the Rehabilitation Act]
shall be the remedies . . . [the ADA] provides,’” and “the Rehabilitation Act, in turn, declares that
the ‘remedies . . . set forth in title VI of the Civil Rights Act of 1964 . . . shall be available’ for
violations of [the Rehabilitation Act].” Id. at 184-85 (quoting 42 U.S.C. § 12133 and 29 U.S.C. §
794a). “Thus, the remedies for violations of § 202 of the ADA and § 504 of the Rehabilitation Act
are coextensive with the remedies available in a private cause of action brought under Title VI of
the Civil Rights Act of 1964.” Barnes, 536 U.S. at 185. The Barnes court then characterized Title
VI of the Civil Rights Act, enacted under the Spending Clause, as contractual in nature. Id. at 185-
86. After considering remedies traditionally available in contract law, the Supreme Court held that
“[b]ecause punitive damages may not be awarded in private suits brought under Title VI of the
1964 Civil Rights Act, it follows that they may not be awarded in suits brought under § 202 of the
ADA and § 504 of the Rehabilitation Act.” Id. at 189. The Barnes decision found it “quite
irrelevant” that the ADA is a non-Spending Clause statute because Congress unequivocally said
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the remedies under the Spending Clause statute are the available remedies under the ADA. Id. at
89 n.3.
Applying Cummings and Barnes, the answer is clear that emotional distress damages are
unavailable for Plaintiff’s ADA claims. The ADA expressly incorporates only those remedies
available in the Rehabilitation Act, which is Spending Clause legislation. 42 U.S.C. § 12133; 29
U.S.C. § 794a. Emotional distress damages are not traditional contractual damages and are not
appropriate remedies under Spending Clause legislation, including the Rehabilitation Act.
Cummings., 596 U.S. 212; Barnes, 536 U.S. 181. In light of Cummings and Barnes, other courts
considering this issue have similarly concluded that emotional distress damages are not available
under the ADA. See e.g., Williams v. Colo. Dep’t of Corrs., No. 21-CV-02595-NYW-NRN, 2023
WL 3585210, at *4-7 (D. Colo. May 22, 2023) (dismissing plaintiff’s claims insofar as they seek
emotional distress damages and noting that “district courts substantively addressing this issue have
seemingly unanimously concluded that, post-Cummings, emotional distress damages are not
recoverable under Title II of the ADA” (collecting cases)); Montgomery v. District of Columbia,
No. CV 18-1928 (JDB), 2022 WL 1618741, at *24-28 (D.D.C. May 23, 2022) (“[I]f a certain
category of damages is not available under [the Rehabilitation Act], it is not available under Title
II either.”); Pennington v. Flora Cmty. Unit Sch. Dist. No. 35, No. 3:20-cv-11-MAB, 2023 WL
348320, at *2 (S.D. Ill. Jan. 20, 2023) (“Because Title II of the ADA incorporates the remedies set
forth in the [Rehabilitation Act] . . . it therefore follows that emotional distress damages are also
not available in suits brought under the ADA.”); Smith v. Kalamazoo Public Schs., 703 F. Supp.
3d 822, 828-29 (W.D. Mich. 2023) (considering Cummings and Barnes, “the Court concludes that
damages for mental anguish and emotional distress are not recoverable in actions brought under
Title II of the ADA.”); Matagrano v. N.Y. State Dep’t of Corrs. & Comm. Supervision, No. 9:19-
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cv-763 (BKS/DJS), 2023 WL 5932943, at *7-8 (N.D.N.Y. Sept. 12, 2023) (“[T]he Court holds
that Plaintiff may not recover emotional distress damages on his Rehabilitation Act and ADA
claims.”); Doherty v. Bice, No. 18-cv-10898 (NSR), 2023 WL 5103900, at *6 (S.D.N.Y. Aug. 9,
2023) (“It thereby follows that emotional distress damages are not available under the ADA if, as
the Cummings Court established, they are not available under the Rehabilitation Act.”); A.T. V.
Oley Valley Sch. Distr., No. 17-4983, 2023 WL 1453143, at *2-4 (E.D. Pa. Feb. 1, 2023)
(considering Cumming and Barnes to conclude that plaintiffs cannot seek emotional distress
damages under the ADA); Cesaire v. Tony, No. 20-CV-61169-RAR, 2023 WL 7291034, at *1-2
(S.D. Fla. Nov. 6, 2023).
For these reasons, the undersigned respectfully recommends Defendants’ Motion be
granted to the extent it generally seeks dismissal of Plaintiff’s request for emotional distress
damages on his ADA claims. However, the undersigned respectfully recommends Defendants’
Motion be denied without prejudice to the extent it requests dismissal of Plaintiff’s ADA claims
in their entirety because the parties dispute which damages may or may not be emotional distress
damages, which turns on factual issues, and Plaintiff may also have other compensable damages.
Pennington, 2023 WL 348320, at *2 (striking request for emotional distress damages but denying
request to dismiss ADA claims where plaintiffs alleged they had other types of compensatory
damages); Matagrano, 2023 WL 5932943, at *7-8 (concluding that plaintiff could not recover
emotional distress damages but denying summary judgment on ADA and Rehabilitation Act
claims because other damages may be available).
D. Defendants’ Motion to Strike
Finally, Defendants filed a Motion to Strike Plaintiff’s Notice of Supplemental Authority
(Doc. No. 22) to the extent Plaintiff provides arguments and case law that is not pertinent and
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significant to the case. Defendants ask the Court to “only review and consider the text of cases
cited within Plaintiff’s Notice that it determines is ‘pertinent and significant’ for purpose of Local
rule 7.1(j).” (Doc. No. 23-1). The Court has considered the text of the cases cited in Plaintiff’s
Notice of Supplemental authority and given such cases the appropriate weight based on their
precedential value to this Court. Accordingly, the Motion to Strike will be denied as moot.
IV. ORDER
IT IS, THEREFORE, ORDERED that Defendants’ Motion to Strike Portions of
Plaintiff’s Notice of Supplemental Authority (Doc. No. 23) is DENIED AS MOOT.
V. RECOMMENDATION
For the foregoing reasons, the undersigned respectfully recommends that Defendants’
Partial Motion to Dismiss (Doc. No. 15) be GRANTED IN PART and DENIED IN PART.
Specifically, the undersigned respectfully recommends:
1. Defendants’ Motion be GRANTED with respect to Plaintiff’s First Amendment Free
Speech claim (Count I) against Brooks and Taylor in their individual capacities only;
2. Defendants’ Motion be DENIED without prejudice to be raised at a later stage as
appropriate with respect to Plaintiff’s Fourth Amendment excessive force (Count II) claim
against Brooks and Taylor in their individual capacities only, and also with respect to
Plaintiff’s Fourth Amendment unreasonable seizure (Count III) claim against Taylor in his
individual capacity only;
3. Defendants’ Motion be DENIED with respect to Plaintiff’s Fourth Amendment excessive
force (Count II), Fourth Amendment unreasonable seizure (Count III), and First
Amendment retaliation (Count VIII) claims against the City;
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4. Defendants’ Motion be GRANTED to the extent it generally seeks dismissal of Plaintiff’s
request for emotional distress damages on his ADA claims but DENIED without prejudice
to the extent it requests dismissal of Plaintiff’s ADA claims in their entirety.
VI. 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 in this Memorandum must be filed within
fourteen days after service of same. Failure to file objections to this Memorandum with the Court
constitutes a waiver of the right to de novo review by the District Judge. Diamond v. Colonial
Life, 416 F.3d 310, 315-16 (4th Cir. 2005). 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)).
The Clerk is directed to send copies of this Memorandum and Recommendation and Order
to the parties’ counsel and to the Honorable Robert J. Conrad, Jr.
SO ORDERED AND RECOMMENDED.
Signed: August 26, 2024
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