The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
EASTERN DIVISION
No. 4:20-CV-33-D
ERIC CENTENO, ) □
)
Plaintiff, )
)
v. ) ORDER
)
WES TRIPP, WARREN AARON )
SMITH, and THE OHIO CASUALTY )
INSURANCE COMPANY, .)
)
Defendants. )
On January 14, 2020, Eric Centeno (“Centeno” or “plaintiff’) filed a complaint against
Halifax County Sheriff Wes Tripp (“Tripp”), Warren Aaron Smith (“Smith”), and The Ohio Casualty
Insurance Company as surety on the official bond of the Sheriff of Halifax County (“surety”) [D.E.
1-2]. Centeno alleges an excessive force claim under 42 U.S.C. § 1983 against Smith in his
individual capacity, an assault claim under North Carolina law against Smith in his individual
capacity and Tripp in his individual and official capacities, and a battery claim under North Carolina
law against Smith in his individual capacity and Tripp in both his individual and official capacities.
See id. at 29-37, 38-44, 45-51.! On February 25, 2020, Tripp removed the action to this court
[D.E. 1, 1-2]. On May 16, 2020, Tripp moved for judgment on the pleadings concerning Centeno’s
claims against him in his individual capacity [D.E. 11] and filed a memorandum in support [D.E.
12]. On April 6, 2020, Centeno responded in opposition [D.E. 14]. On April 10, 2020, Tripp replied
1 On June 11, 2020, Centeno amended his complaint. See [D.E. 18]. In his amended
complaint, Centeno replaced defendant John Doe Corporation with The Ohio Casualty Insurance
Company as surety, and Centeno alleged assault and battery claims against Tripp in his individual
capacity. See id. at J] 38-44, 45-51. .
[D.E. 15]. As explained below, the court grants Tripp’s motion for judgment on the pleadings
concerning Centeno’s assault and battery claims against Tripp in his individual capacity.
In 2013, Tripp began serving as Halifax County Sheriff. See Am. Compl. [D.E. 18] { 10.
On June 12, 2017, Smith—a deputy sheriff for Halifax County—responded to call concerning a
domestic incident at Centeno’s home. See id. at Jf 16-17. Earlier that day, Centeno and his wife
got into an argument, and Centeno’s stepdaughter called 91 1. Seeid. When Smith arrived, Centeno
and his wife were not arguing. See id. at { 17. After speaking with Centeno’s wife and
stepdaughter, Smith handcuffed Centeno’s wife. See id. at { 18. Centeno approached Smith and
attempted to explain the domestic dispute. See id. at { 19. Smith responded by telling Centeno to
“shut [his] mouth” or he would “beat” Centeno. See id. Smith also told Centeno that he was not
having a good day and would arrest Centeno if he did not stop talking. See id. at { 20. Centeno
asked on what basis Smith would arrest Centeno. See id. Smith then pulled Centeno down the front
porch steps, forcibly put Centeno on the ground with his arm behind his back, and handcuffed
Centeno with his face on the concrete walkway. See id. at During the arrest, Centeno hit his
head on the ground. See id.
Smith led Centeno to the back seat of his police car and told Centeno that he would close the
door on his legs if Centeno did not quickly get into the car. See id. at 22. Smith took Centeno to
a jail, but was told to take Centeno to a hospital. See id. at 124. At the Halifax Regional Medical
Center, Centeno received treatment in the hospital’s emergency room. See id. Centeno was released
from the hospital, taken to jail, and charged with resisting arrest and assault on a female. See id. at
25. Later, Centeno was admitted to the hospital for treatment for his injuries. See id.
2 □
Centeno suffered injuries to his shoulder, arm, and eye. See id. at { 27. Centeno also
suffered from post-traumatic stress disorder symptoms. See id. at { 28. The Halifax County
Sheriff's Office fired Smith because of his arrest of Centeno. See id. at | 26. The county also
dropped all criminal charges against Centeno. See id.
I.
Federal Rule of Civil Procedure 12(c) permits a party to move for judgment on the pleadings
“Talfter the pleadings are closed—but early enough not to delay trial.” Fed. R. Civ. P. 12(¢). A
motion for judgment on the pleadings should be granted if “the moving party has clearly established
that no material issue of fact remains to be resolved and the party is entitled to judgment as a matter
of law.” Park Univ. Enters. v. Am. Cas. Co. of Reading, 442 F.3d 1239, 1244 (10th Cir. 2006) .
(quotation omitted), abrogated on other grounds by Magnus, Inc. v. Diamond State Ins. Co., 545 F.
App’x 750 (10th Cir. 2013) (unpublished); we Mayfield v. Nat] Ass’n for Stock Car Auto Racing,
Inc., 674 F.3d 369, 375 (4th Cir. 2012); Burbach Broad. Co. of Del. v. Elkins Radio Corp., 278 F.3d
401, 405-06 (4th Cir. 2002). The same standard controls a motion for judgment on the pleadings
as a motion to dismiss under Rule 12(b)(6). See Burbach Broad. Co., 278 F.3d at 405-06.
A motion to dismiss under Rule 12(b)(6) tests the complaint’s legal and factual sufficiency.
See Ashcroft v. Iqbal, 556 U.S. 662, 677-80 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 554—
63 (2007); Coleman v. Md. Court of Appeals, 626 F.3d 187, 190 (4th Cir. 2010), aff'd, 566 U.S. 30
(2012); Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir. 2009);
Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008). To withstand a Rule 12(b)(6) motion, a
pleading “must contain sufficient factual matter, accepted as true, to state a claim to relief that is
plausible on its face.” Iqbal, 556 U.S. at 678 (quotation omitted); see Twombly, 550 U.S. at 570;
Giarratano, 521 F.3d at 302. In considering the motion, the court must construe the facts and
_ reasonable inferences “in the light most favorable to the [nonmoving party].” Massey v. Ojaniit, 759
F.3d 343, 352 (4th Cir. 2014) (quotation omitted); see Clatterbuck v. City of Charlottesville, 708
F.3d 549, 557 (4th Cir. 2013), abrogated on other grounds by Reed v. Town of Gilbert, 135 S. Ct.
2218 (2015). A court need not accept as true a complaint’s legal conclusions, “unwarranted
inferences, unreasonable conclusions, or arguments.” Giarratano, 521 F.3d at 302 (quotation
omitted); see Iqbal, 556 U.S. at 678-79. Rather, a plaintiffs allegations must “nudge[ ] [his]
claims,” Twombly, 550 U.S. at 570, beyond the realm of “mere possibility” into “plausibility.”
Iqbal, 556 U.S. at 678-79.
The motion to dismiss requires the court to consider Centeno’s state-law claims against
Tripp, and the parties agree that North Carolina law applies. Accordingly, this court must predict
how the Supreme Court of North Carolina would rule on any disputed state law issues. See Twin
City Fire Ins. Co. v. Ben Arnold-Sunbelt Beverage Co. of S.C., 433 F.3d 365, 369 (4th Cir. 2005).
In doing so, the court must look first to opinions of the Supreme Court of North Carolina. See id.;
Stahle v. CTS Corp., 817 F.3d 96, 100 (4th Cir. 2016). If there are no governing opinions from that
court, this court may consider the opinions of the North Carolina Court of Appeals, treatises, and
“the practices of other states.” Twin City Fire Ins. Co., 433 F.3d at 369 (quotation omitted).” In
predicting how the highest court of a state would address an issue, this court must “follow the
decision of an intermediate state appellate court unless there [are] persuasive data that the highest
court would decide differently.” Toloczko, 728 F.3d at 398 (quotation omitted); see Hicks v. Feiock,
485 U.S. 624, 630 & n.3 (1988). Moreover, in predicting how the highest court of a state would
pases an issue, this court “should not create or expand a [s]tate’s public policy.” Time Warner
2 North Carolina does not have a mechanism to certify questions of state law to its Supreme
Court. See Town of Nags Head v. Toloczko, 728 F.3d 391, 397-98 (4th Cir. 2013).
Entm’t-Advance/Newhouse P’ ship v. Carteret-Craven Elec. Membership Corp., 506 F.3d 304, 314
(4th Cir. 2007) (alteration and quotation omitted); see Day & Zimmerman, Inc. v. Challoner, 423
US. 3, 4 (1975) (per curiam); Wade v. Danek Med.., Inc., 182 F.3d 281, 286 (4th Cir. 1999).
Centeno argues that Tripp is individually liable for Smith’s assault and battery.’ In support,
Centeno contends that under North Carolina law, a sheriff is liable for the acts and omissions of his
deputy, and that this principle implicitly means that a sheriff is individually liable for a deputy’s
official acts. Accordingly, Centeno asserts that he has plausibly alleged assault and battery claims _
against Smith. See [D.E. 14] 4-6.
The North Carolina Constitution creates the office of the sheriff, and the sheriff is “alone
responsible for carrying out his or her duties.” Young v. Bailey, 368 N.C. 665, 671, 781 S.E.2d 277,
280 (2016); see N.C. Gen. Stat. § 162-24. In North Carolina, “the sheriff has singular authority over
his or her deputies . . . and is responsible for their actions.” Bailey, 368 N.C. at 669, 781 S.E.2d at
280. The Supreme Court of North Carolina has stated that “[a] sheriff is liable for the acts or
omissions of his deputy as he is for his own.” State ex rel. Cain v. Corbett, 235 N.C. 33, 38, 69
S.E.2d 20, 23 (1952) (quotation omitted); see Bailey, 368 N.C. at 671, 781 S.E.2d at 281; Styers v.
Forsyth Cty., 212 N.C. 558, 564, 194 S.E. 305, 309 (1937); Prior v. Pruett, 143 N.C. App. 612, 621,
550 S.E.2d 166, 172 (2001); cf. Jenkins v. Medford, 119 F.3d 1156, 1163-64 (4th Cir. 1997);
McCollum v. Stahl, 579 F.2d 869, 872 (4th Cir. 1978); Bass v. Bunn, No. 7:08-cv-71-BR, 2009 WL
10705552, at *9 (E.D.N.C. June 17, 2009) (unpublished).
3 Initially, Tripp argues that if Centeno alleges a claim under 42 US.C. § 1983, the claim
fails because respondeat superior does not apply under section 1983, and Centeno did not plead
Tripp’s personal involvement in Smith’s arrest of Centeno. See [D.E. 12] 5-6. The amended
complaint, however, does not name Tripp in Centeno’s section 1983 claim. See Compl. [D.E. 1-2]
q{ 29-37; Am. Compl. [D.E. 18] {J 29-37.
Centeno does not identify—and this court’s extensive research did not reveal—a North
Carolina appellate court that held a sheriff individually liable for a deputy’s intentional torts. Thus,
it appears that Centeno is asking the court to expand North Carolina’s public policy concerning a
sheriff's individual liability for the intentional torts of a deputy. The court declines the invitation.
See, e.g., Carteret-Craven Elec. Membership Corp., 506 F.3d at 314; Danek Med., Inc., 182 F.3d at
286.
Under North Carolina law, a sheriff may be liable for the sheriff's deputy’s intentional torts
only in the sheriff's official capacity. fn Styers, the Supreme Court of North Carolina expounded
on the common law principles concerning a sheriff's liabilities for a deputy’s actions. The Styers
court held that “[t]he acts of the deputy are the acts of the sheriff’ and that “the sheriff is held liable
on his official bond for the acts of his deputy.” Styers, 212 N.C. at 564, 194 S.E. at 308. In its
holding, the Styers court first noted a consensus among sister state courts concerning the principle
of a sheriff's liability on the official bond for the deputy’s official conduct. See id., 212 NC. at 562,
194 S.E. at 307-08. The Styers court went on to explain that “for what [the deputy] does the sheriff —
is made responsible the same as ifhe had officially done the same thing,” and that the sheriffis liable
“for the official acts of the deputy ...asif they had been done by himself.” Id., 212 N.C. at 564, 194
S.E. at 308 (quotation omitted). The court then summarized its holding, stating that “the
responsibility of a sheriff for the acts of his deputy, done colore officii, rests upon the principle that
the hand that does or procures the act is liable.” Id., 212 N.C. at 564, 194 S.E. at 309.
The Supreme Court of North Carolina reiterated Styers’s holding in Cain. The Cain court
held that a “the Sheriff and the surety on his bond” were “proper and necessary parties” to a
plaintiffs claims against a sheriff's deputy concerning false arrest and assault claims. Cain, 235
N.C. at 39, 69 S.E.2d at 24. The Cain court reasoned that this conclusion followed necessarily from
the court’s discussion in Styers, an opinion from which the Cain court quoted extensively. See id.,
235 N.C. at 38, 69 S.E.2d at 23; see also Prior, 143 N.C. App. at 621, 550 S.E.2d at 172.
In light of Styers and Cain, this court predicts that the Supreme Court of North Carolina
would hold that a sheriffis liable for a deputy’s official actions only in the sheriff s official capacity.
As discussed, no North Carolina appellate court has held that a sheriff is individually liable for the
intentional torts of that sheriff's deputy. To the contrary, Styers and Cain discuss the sheriff's
liability in the context of the sheriff's surety or official bond, i.e., liability insurance for harms
resulting from the sheriff's official acts. This conclusion makes sense. North Carolina law abrogates
public official immunity for sheriffs when a plaintiff names a sheriff in his official capacity and adds
the sheriff's surety as a party to the action, but not when the sheriff is named individually. See N.C.
Gen. Stat. § 58-76—5; Thomas v. Sellers, 142 N.C. App. 310, 314, 542 S.E.2d 283, 286 (2001).
Accordingly, the court grants Tripp’s motion for judgment on the pleadings concerning Centeno’s
assault and battery claims against Tripp in his individual capacity.
Il.
In sum, the court GRANTS Tripp’s motion for judgment on the pleadings concerning
Centeno’s claims against Tripp in his individual capacity.
SO ORDERED. This go day of June 2020.
United States District Judge
7 .