The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
SOUTHERN DIVISION
No. 7:20-CV-232-BO
GRAHAM KEITH HARDIN, )
Plaintiff, )
V. ORDER
RYAN FUQUA and
CITY OF LUMBERTON, )
Defendants. )
This cause comes before the Court on defendants’ motions to dismiss plaintiffs original
and amended complaints. Plaintiff has responded and the time for filing a reply has expired. In this
posture, the motions are ripe for ruling. For the reasons that follow, the motion to dismiss the
original complaint is denied as moot and the motion to dismiss the amended complaint and granted
in part and denied in part.
BACKGROUND
Plaintiff initiated this action by filing a complaint on November 25, 2020. The matter was
subsequently stayed while defendant Fuqua completed overseas United States Army military
deployment, and the stay was lifted on October 18, 2021. Defendants then moved to dismiss the
complaint after which plaintiff filed an amended complaint. As an amended complaint supersedes
the original complaint, Fawzy v. Wauquiez Boats SNC, 873 F.3d 451, 455 (4th Cir. 2017), the
motion to dismiss the original complaint [DE 19] is DENIED AS MOOT.
In his amended complaint, plaintiff alleges as follows. On April 20, 2020, plaintiff called
911 to report excessively loud music coming from a car or cars at a carwash next to his home in
Lumberton, North Carolina. Defendant Fuqua, a Lumberton police officer, responded to plaintiffs
call. Plaintiff alleges that Fuqua was angry at plaintiff for having reported the noise and that Fuqua,
without a warrant and in retaliation for plaintiff's 911 call, arrested plaintiff at his home for
misdemeanor misuse of the 911 system in violation of N.C. Gen. Stat. § 14-111.4.
While Fuqua was putting plaintiff, who was in handcuffs, into the patrol vehicle, plaintiff
fell and injured himself due in whole or in part to Fuqua’s actions or inactions. After plaintiff fell,
Fuqua roughly brought plaintiff up off the ground and roughly put him in the patrol vehicle,
causing plaintiff pain and ignoring plaintiff's pleas to stop treating him roughly due to plaintiff's
underlying physical disabilities.
Plaintiff was transported to the jail and released on bond. On October 1, 2020, plaintiff was
tried before the Court of General Justice, District Court Division, and was acquitted. The presiding
judge announced that because excessive noise is a crime in Lumberton, citizens have the right to
call 911 to report noise ordinance violations. At the trial immediately prior to plaintiffs trial, the
presiding judge dismissed another case where the defendant was the subject of a warrantless
misdemeanor arrest by Fuqua.
Plaintiff has alleged that Fuqua violated his First Amendment right to freedom of speech
and to petition the government for redress of grievances; his Fourth Amendment right to be free
from unreasonable seizure due to the lack of probable cause and/or exigent circumstances in
violation of Welsh v. Wisconsin, 466 U.S. 740, 750 (1984) and/or Fuqua’s use of excessive force;
that the City of Lumberton has failed to adopt policies and procedures and/or to supervise its police
officers to ensure that citizens’ rights are not violated (Monell claim); as well as state law claims
for false arrest, malicious prosecution, and negligence against the City of Lumberton.
DISCUSSION
Defendants have moved to dismiss the amended complaint pursuant to Rule 12(b)(6) of
the Federal Rules of Civil Procedure. A Rule 12(b)(6) motion tests the legal sufficiency of the
complaint. Papasan v. Allain, 478 U.S. 265, 283 (1986). A complaint must allege enough facts to
state a claim for relief that is facially plausible. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007). In other words, the facts alleged must allow a court, drawing on judicial experience and
common sense, to infer more than the mere possibility of misconduct. Nemet Chevrolet, Ltd. v.
Consumeraffairs.com, Inc., 591 F.3d 250, 256 (4th Cir. 2009). The court “need not accept the
plaintiff's legal conclusions drawn from the facts, nor need it accept as true unwarranted
inferences, unreasonable conclusions, or arguments.” Philips v. Pitt County Mem. Hosp., 572 F.3d
176, 180 (4th Cir. 2009) (internal alteration and citation omitted).
A. Federal claims
Plaintiff brings four claims under 42 U.S.C. § 1983 for violation of his rights under the
United States Constitution. Fuqua has argued that he is qualifiedly immune from plaintiff's § 1983
claims and that plaintiff otherwise fails to state a claim.
Qualified immunity shields government officials from liability for statutory or
constitutional violations so long as they can reasonably believe that their conduct does not violate
clearly established law. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); see also Henry v. Purnell,
652 F.3d 524, 531 (4th Cir. 2011) (en banc). A court employs a two-step procedure for determining
whether qualified immunity applies that “asks first whether a constitutional violation occurred and
second whether the right violated was clearly established.” Melgar v. Greene, 593 F.3d 348, 353
(4th Cir. 2010). A court may exercise its discretion to decide which step of the analysis to decide
first based on the circumstances presented. Pearson v. Callahan, 555 U.S. 223, 236 (2009).
(1) First Amendment
Plaintiff alleges that Fuqua violated his First Amendment rights when he arrested plaintiff
in retaliation for having reported an active violation of the Lumberton noise ordinance. The First
Amendment ““prohibits government officials from subjecting an individual to retaliatory actions’
for engaging in protected speech.” Nieves v. Bartlett, 139 S. Ct. 1715, 1722 (2019) (quoting
Hartman v. Moore, 547 U.S. 250, 256 (2006)). In order to establish retaliation in violation of the
First Amendment, a plaintiff must show that he engaged in protected speech, that the retaliatory
action adversely affected his protected speech, and that there is a causal connection between the
speech and the defendant’s retaliatory action. Suarez Corp. Indus. v. McGraw, 202 F.3d 676, 686
(4th Cir. 2000). The defendant’s “retaliatory animus” must be the “but for cause” of plaintiff's
injury. Nieves, 139 S. Ct. at 1722.
In their motion to dismiss, defendants argue only that plaintiff has failed to allege the
underlying speech and grievance was true and that he was arrested only because of Fuqua’s
retaliatory motive. The amended complaint does, however, allege that plaintiff truthfully reported
the noise on his 911 call and that, as Fuqua testified at plaintiff's criminal trial, Fuqua arrested
plaintiff's because of plaintiff's 911 call. Amd. Compl. §§ 13, 20. As the Court has found that
plaintiff has sufficiently alleged his First Amendment claim, and there has been no argument that
the right to be free from retaliation in violation of the First Amendment was not clearly established
at the time Fuqua arrested plaintiff, the Court declines to hold at this stage that Fuqua is entitled to
qualified immunity.
(2) Fourth Amendment
Plaintiff next alleges that his Fourth Amendment rights were violated when he was
subjected to an unlawful warrantless arrest and was subjected to excessive force.
“If an officer has probable cause to believe that an individual has committed even a very
minor criminal offense in his presence, he may, without violating the Fourth Amendment, arrest
the offender.” Atwater v. City of Lago Vista, 532 U.S. 318, 354 (2001). In support of the motion
to dismiss, defendants have filed, as a public record, the magistrate’s determination that probable
cause existed to arrest plaintiff. Hall v. Virginia, 385 F.3d 421, 424 n.3 (4th Cir. 2004) (court may
consider matter of public record without converting Rule 12(b)(6) motion to one for summary
Judgment).
Plaintiff has also alleged that he was arrested at his home. Though his allegation lacks
detail, a warrantless arrest in an individual’s home, which includes the surrounding curtilage,
violates the Fourth Amendment unless exigent circumstances or consent is present. Donovan v.
Dewey, 452 U.S. 594, 599 n.6 (1981); United States v. Love, 767 F.2d 1052, 1063 (4th Cir. 1985).
This is true even if an officer has probable cause. Collins v. Virginia, 138 S. Ct. 1663, 1672 (2018).
Although the recital of this cause of action is not robust, it is not, as defendants argue, threadbare.
Fuqua has not argued that plaintiff's Fourth Amendment right to be free from warrantless arrest
on a misdemeanor offense within his home or its curtilage was not clearly established at the time
of plaintiffs arrest, and the Court will thus defer its ruling on qualified immunity as to this claim
and allow it to proceed.
(3) Excessive force
Plaintiff further alleges that Fuqua used excessive force when effecting plaintiffs arrest.
Courts apply an objective reasonableness standard to determine whether the use of force by a
police officer violated the Fourth Amendment. Graham v. Connor, 490 U.S. 386, 397 (1989). The
reasonableness of the “force must be judged from the perspective of a reasonable officer on the
scene, rather than with the 20/20 vision of hindsight.” /d. at 396. “In considering whether an officer
used reasonable force, a court must focus on the moment that the force is employed.” Henry, 652
F.3d at 531.
Plaintiff has alleged that he is a disabled veteran and that, after falling and while still in
handcuffs, Fuqua roughly picked plaintiff up off the ground and roughly put plaintiff in the patrol
vehicle. Plaintiff further alleges that Fuqua continued to treat him roughly despite plaintiff's pleas
to stop and that Fuqua’s treatment caused plaintiff to experience pain and an exacerbation of his
underlying physical disabilities.
The Court deems these allegations, which at this stage must be taken as true, sufficient to
state an excessive force claim. As defendants have not argued that the right to be free from
excessive force under these circumstances was not clearly established at the time of plaintiff's
arrest, the Court will again defer a ruling on qualified immunity.
(4) Monell claim
Under Monell v. New York City Department of Social Services, 436 U.S. 658, 690-94
(1978), a local government can be held liable under 42 U.S.C. § 1983 for its unconstitutional
policies. Municipal liability only results “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 injury.” /d. at 694.
Plaintiff alleges that the City of Lumberton has failed to adopt policies and procedures
and/or to supervise its police officers to ensure they do not violate the Fourth Amendment rights
of citizens. While the failure to train officers may rise to the level of a policy or custom for which
a municipality may be liable under § 1983, Lytle v. Doyle, 326 F.3d 463, 471 (4th Cir. 2003),
plaintiff's allegations are insufficient to nudge his Monell claim against the city across the line
from conceivable to plausible. For example, plaintiff has not alleged facts which would tend to
show that the City of Lumberton was on notice, either actual or constructive, that the police
department’s training program caused the violation of citizens’ constitutional rights, Connick v.
Thompson, 563 U.S. 51, 61 (2011), or that the failure to supervise officers has resulted in “a history
of widespread abuse.” Wellington v. Daniels, 717 F.2d 932, 936 (4th Cir. 1983). This claim is
accordingly dismissed.
B. State law claims
(1) Governmental immunity
Defendants have raised the defense of governmental immunity in support of dismissal of
plaintiff's state law claims. “In North Carolina, governmental immunity serves to protect a
municipality, as well as its officers or employees who are sued in their official capacity, from suits
arising from torts committed while the officers or employees are performing a governmental
function.” Fullwood v. Barnes, 250 N.C. App. 31, 37 (2016) (internal quotation and citation
omitted). In North Carolina, it is “well-established that law enforcement constitutes a
governmental function.” Sellers v. Rodriguez, 149 N.C. App. 619, 623 (2002). A plaintiff must
allege and ultimately prove that defendants have waived their immunity or otherwise consented to
suit. see also Fullwood, 250 N.C. App. at 37. The failure to plead waiver of immunity or
consent to suit is a failure to state a cognizable claim. Jd.
Plaintiff has alleged that the City of Lumberton and Fuqua in his official capacity have
waived governmental immunity by purchasing insurance pursuant to N.C. Gen. Stat. § 160A-
485(a). This is sufficient at this stage of the proceeding, and dismissal pursuant to governmental
immunity is not appropriate.
(2) False arrest & malicious prosecution
A false arrest under North Carolina law is one which is without legal authority. Marlowe
v. Piner, 119 N.C. App. 125, 129 (1995). To prove malicious prosecution, “‘a plaintiff must show
that the defendant (1) initiated or participated in the earlier proceeding, (2) did so maliciously, (3)
without probable cause, and (4) the earlier proceeding ended in favor of the plaintiff.” Turner v.
Thomas, 369 N.C. 419, 425 (2016).
The magistrate’s probable cause finding is a sufficient basis on which to dismiss these
claims, as the existence of probable cause, determined just following plaintiff's warrantless arrest
by a neutral and detached magistrate, precludes a finding of false arrest or malicious prosecution.
See Painter v. City of Mt. Holly, 264.N.C. App. 249 (2019) (quoting Adams v. City of Raleigh, 245
N.C. App. 330, 338 (2016)). The probable cause finding is “presumed valid unless plaintiff
presents ‘allegations of deliberate falsehood or of reckless disregard for the truth, and those
allegations must be accompanied by an offer of proof.’” Beeson v. Palombo, 220 N.C. App. 274,
279 (2012). Plaintiff's complaint falls short of this threshold and these claims are appropriately
dismissed.!
(4) Punitive damages
“A punitive damages claim is not technically an independent cause of action, but is instead
dependent upon an award of compensatory damages on one of a plaintiff's other claims.” Taylor
v. Bettis, 976 F. Supp. 2d 721, 747 (E.D.N.C. 2013). Accordingly, there is no need to dismiss any
request for punitive damages.
C. Leave to amend
' Because the Court determines that plaintiff has failed it state a claim for false arrest or malicious
prosecution, it need not consider whether Fuqua is entitled to public official immunity for these
claims. See Moore v. Evans, 124 N.C. App. 35, 42 (1996).
Plaintiff requests leave to replead should the Court find one or more claims not sufficiently
stated. Without, however, a proposed pleading, the Court cannot determine whether granting leave
to amend would be futile. See Johnson v. Oroweat Food Co., 785 F.2d 503, 509 (4th Cir. 1986).
The request for leave to amend is therefore denied without prejudice.
CONCLUSION
Accordingly, for the foregoing reasons, defendants’ motion to dismiss the original
complaint [DE 19] is DENIED AS MOOT and defendants’ motion to dismiss the amended
complaint [DE 27] is GRANTED IN PART AND DENIED IN PART. Plaintiff's Monell, false
arrest, and malicious prosecution claims are DISMISSED. Plaintiffs remaining claims will
proceed.
SO ORDERED, this _77_ day of April 2022.
UNITED STATES DISTRICT JUDGE