Robinson v. City of Kinston

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NORTH CAROLINA

EASTERN DIVISION

No. 4:21-CV-44-D

STEFON ROBINSON, □ )

)

Plaintiff, )

) □

v. ) ' ORDER

)

KINSTON POLICE OFFICER )

JAMES BEST, in his individual )

capacity, CITY OF KINSTON, and ) ,

CITY OF KINSTON POLICE )

DEPARTMENT, )

- )

Defendants. )

On April 8, 2021, Stefon Robinson (“Robinson” or “plaintiff’) filed this action against

Kinston Police Officer James Best (“Officer Best”), in his individual capacity, the City of Kinston

(“Kinston”), and the City of Kinston Police Department (“KPD”) (collectively “defendants”) alleging

violations of 42 U.S.C. § 1983, assault, battery, intentional infliction of emotional distress, negligent

infliction of emotional distress, and negligence. [D.E. 1]. On December 22, 2022, defendants

moved for summary judgment [D.E. 38] and filed a memorandum [D.E. 39], statement of material

facts [D.E. 40], and appendices [D.E. 41-43] in support. On February 13, 2023, Robinson responded

in opposition [D.E. 46] and submitted a statement of material facts [D.E. 47] and appendix [D.E. 48]

in support. On March 13, 2023, defendants replied to Robinson’s statement of material facts [D.E.

51]. As explained below, the court grants defendants’ motion for summary judgment.

I.

On Sunday April 8, 2018, at approximately 9:00 a.m., Officer Best received a call from KPD

dispatch to respond to a domestic disturbance at an apartment complex at 912 East Highland Avenue

in Kinston, North Carolina. Defendants’ Statement of Material Facts ““DSMF”) [D.E. 40] 9;

Plaintiff's Statement of Material Facts (“PSMF”) [D.E. 47] ] 9. Dispatch informed Officer Best that

Tanequea Drake (“Drake”) called 911 to report a domestic disturbance at her apartment and said that

the suspect was still at Drake’s apartment. See DSMF ff 10, 11; PSMF ff 10, 11. Officer Best’s

normal patrol unit, a marked Dodge Charger sedan, was undergoing repairs. Thus, he responded to

the call in a marked Ford Explorer SUV vehicle (“Explorer”). See DSMF ff 7, 8; PSMF 7, 8.

Officer Best was wearing his KPD uniform. As Officer Best approached Drake’s apartment,

he heard “multiple people yelling, the loudest of which [Officer Best] identified as a male voice.”

DSMF q 17. Officer Best knocked on the door and five people exited the apartment, including Drake

and Robinson. See DSMF { 20; PSMF § 20; Officer Best Bodycam Footage (“Bodycam”) Ex. 11

[D.E. 44] 0:30-0:50. When Robinson saw Officer Best, Robinson turned to Drake, pointed at Drake,

and asked Drake in a very agitated tone multiple times if she called the police, “yes or no?” See

DSMF § 22; PSMF 4 22; Bodycam at 0:35-0:40. Officer Best told Drake and Robinson that Officer

Best needed to separate them so that he could speak with each of them individually and hear their

stories. See DSMF § 35; PSMF { 35; Bodycam at 0:47-0:52.

Officer Best moved away from the apartment and asked Drake to “come talk to me over

here.” See DSMF § 36; PSMF 36. Before talking to Drake, Officer Best explained to Robinson

multiple times that he was going to first talk to Drake and hear her story and then would talk to

Robinson and hear his story. See DSMF {J 37-40; PSMF 37-40. Officer Best instructed

Robinson multiple times to return inside the apartment so that Officer Best could speak to Drake

alone. See DSMF ff 37-41; PSMF {ff 37-41; Bodycam 0:47-1:30. Instead of complying with the

order, Robinson remained outside the apartment, exclaiming “[t]his is some bullshit” and “I’m being

cooperative.” See DSMF {J 44, 45; PSMF ff 44, 45; Bodycam 0:55-1:09. In response, Officer Best

again asked Robinson to go inside the apartment. See DSMF {J 46-48; PSMF {f 46-48; Bodycam

1:06-1:18. Officer Best then told Robinson that he would detain and handcuff Robinson if Robinson

did not go inside the apartment. See DSMF ff 49, 50; PSMF {7 49, 50; Bodycam 1:18-1 :21. In

response, Robinson indicated that he was going inside and began to move towards the apartment

door. See DSMF 56-58; PSMF {ff 56-58; Bodycam 1:21-1:30.

Once Robinson began moving towards the apartment door, Officer Best turned around,

walked back to Drake, and began speaking with Drake about the domestic disturbance call. See

DSMF ff 60, 61; PSMF ff 60, 61; Bodycam 1:30-1:39. Before Drake could tell Officer Best why

she called 911, Drake stopped talking and looked back towards the apartment building. See DSMF

62; PSMF 9 62; Bodycam 1:40. Officer Best looked back towards the apartment building and saw

Robinson standing outside, watching Officer Best talk to Drake. See DSMF ff 63, 64; PSMF □□ 63,

64; Bodycam 1:40-1:42. Officer Best walked back to Robinson, who was standing outside with his

arms crossed. See DSMF { 68; PSMF § 68; Bodycam 1:40-1:45.

Officer Best told Robinson that he was going to detain him and repeatedly told him to place

his hands behinds his back in order to be handcuffed, but Robinson did not comply. See Bodycam

1:45-2:00. Ultimately, Officer Best pushed Robinson against a railing in order to stop Robinson

from moving. See DSMF 7 85; PSMF § 85. Robinson still did not put his hands behind his back,

but instead grasped the railing with both hands. See DSMF § 92; PSMF 92; Bodycam 2:00-2:35.

Officer Best repeatedly commanded Robinson to let go of the railing and put his hands behind his

back. See DSMF J 100-06; PSMF {J 100-06; Bodycam 2:00-2:35. After repeated commands,

Officer Best struck Robinson’s body with his knee multiple times in an attempt to dislodge

Robinson’s hands from the railing. See DSMF 107; PSMF § 107; Bodycam 2:10-2:30. Once

Robinson let go of the railing, Officer Best placed Robinson’s hands behind his back and put

Robinson in handcuffs. See DSMF 115; PSMF { 115; Bodycam 2:40-3:00.

Officer Best then began walking with Robinson to the Explorer. See DSMF 117; PSMF

4117; Bodycam 3:44. During the walk, Robinson heckled Officer Best, calling Officer Best “weak,”

saying that he was “stronger” than Officer Best, and claiming that it was a “female voice,” and not

Officer Best, that led Robinson to let go of the railing. See DSMF { 126; PSMF { 126; Bodycam

3:48-4:31. Once at the Explorer, Officer Best held Robinson at the back of the Explorer. Officer

Best could not put Robinson in the back of the Explorer at that time because Officer Best’s canine

partner was in the back of the Explorer. See DSMF § 132; PSMF { 132.

The parties disagree about what happened next. Defendants contend that Robinson attempted

to pull away from Officer Best, requiring Officer Best to attempt and pull Robinson back towards

the Explorer. See DSMF J 134-140. Defendants contend that before pulling Robinson back,

Officer Best instructed Robinson to “[s]top walking, man!” See id. at [| 141. Defendants contend

that while attempting to pull Robinson back towards the Explorer in order to immobilize him,

Officer Best’s left elbow shattered the glass rear windshield of the Explorer thereby cutting Officer

Best’s left arm, and Robinson and Officer Best then fell to the ground. See id. at FJ 14446.

According to Officer Best, he had used this technique several times with his Dodge Charger to

immobilize a resisting detainee. See id. at ]219.

Robinson contends that he was cooperative while walking with Officer Best to the Explorer.

See [D.E. 46] 4. Once at the Explorer, Robinson testified that Officer Best paused, then “suddenly

slammed Mr. Robinson headfirst into the windshield, smashing the window to bits, and forcing Mr.

Robinson’s head into the space behind the glass.” Id. at 4—5. Robinson alleges that Officer Best told

Robinson to stop walking after slamming Robinson’s head through the rear window. See id. at 5.

Officer Best allegedly injured his left elbow on the broken glass as Officer Best was pulling

Robinson from the Explorer. See id. Robinson alleges that Officer Best then “took [him] to the

ground” where Robinson landed on glass shards. See id.

Consistent with Scott v. Harris, 550 U.S. 372, 378-81 (2007), and its progeny, this court has

reviewed Officer Best’s bodycam video.’ Officer Best’s bodycam video shows Officer Best walking

with Robinson towards the Explorer. Robinson is handcuffed with his hands behind his back, and

they are talking. Robinson is very agitated. As they arrive at the Explorer, the bodycam video shows

Robinson (who is facing away from Officer Best) pull away from Officer Best, and Officer Best pull

Robinson back towards Officer Best and the Explorer. The bodycam video then shows the glass of

the back of the Explorer breaking, Robinson and Officer Best falling to the ground, Officer Best

standing up with a bleeding left arm, and Robinson repeatedly saying “fuck you” to Officer Best.

Officer Best then repeatedly told Robinson to calm down and requested assistance.

The bodycam video does not show Officer Best slamming Robinson’s head through the rear

window of the Explorer or injuring his left elbow on the broken glass as he was pulling Robinson

from the Explorer. The bodycam video also does not show any injury to Robinson’s face or head.

The bodycam video does show cuts on Robinson’s right leg, which arose due to the fall to the ground

and the glass shards on the ground.

After KPD backup arrived, another KPD police officer drove Robinson to the police station,

and Officer Best received treatment for bleeding on his left elbow. See DSMF ff 180, 186; PSMF

180, 186; Bodycam 6:26-6:43. At the police station, Robinson voluntarily slammed his head

! In Harris v, Pittman, 927 F.3d 266 (4th Cir. 2019), the Fourth Circuit discussed Scott, and

held that “[s]ummary judgment is proper under Scott only when there is evidence—like the

videotape in Scott itself—of undisputed authenticity that shows some material element of the

plaintiff's account to be ‘blatanly and demonstrably false.” Id. at 276. This court has applied

Harris’s interpretation of Scott. ;

against a metal gate twice when speaking with Officer Harrison. See DSMF { 263; PSMF { 263;

Bodycam Footage (“Bodycam 2”) Exhibit 12 [D.E. 44] 11:44-11:46. KPD took Robinson to Lenoir

Memorial Hospital, where staff treated him for cuts on his right leg. See DSMF {f 269, 271; PSMF

269, 271; [D.E. 42-4] 1, 4, 6. Although Robinson reported head pain, a CT scan came back

normal and atraumatic, and Robinson had no major lacerations on his head or face. See DSMF □□

280, 283; PSMF {ff 280, 283. Hospital staff diagnosed Robinson with a concussion. See DSMF J

286; PSMF { 286. Robinson was charged with a class 2 misdemeanor of resist, obstruct, and delay

in violation of N.C. Gen. Stat. § 14-223.

Robinson was convicted in Lenoir County District Court of violating N.C. Gen. Stat. § 14-

223. See DSMF 7 320; PSMF 9 320. Robinson appealed to Lenoir County Superior Court, and the

Lenoir District Attorney dismissed the charge. See DSMF 4 321; PSMF { 321.

I.

Summary judgment is appropriate when, after reviewing the record as a whole, the court

determines that no genuine issue of material fact exists and the moving party is entitled to judgment

as matter of law. See Fed. R. Civ. P. 56(a); Scott, 550 U.S. at 378-86; Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 247-48 (1986). The party seeking summary judgment must initially demonstrate

the absence of a genuine issue of material fact or the absence of evidence to support the nonmoving

party’s case. See Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once the moving party has

met its burden, the nonmoving party may not rest on the allegations or denials in its pleading, see

Anderson, 477 U.S. at 248-49, but “must come forward with specific facts showing that there is a

genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587

(1986) (cleaned up). A trial court reviewing a motion for summary judgment should determine

whether a genuine issue of material fact exists for trial. See Anderson, 477 U.S. at 249. In making

this determination, the court must view the evidence and the inferences drawn therefrom in the light

most favorable to the nonmoving party. See Harris, 550 U.S. at 378.

A genuine issue of material fact exists if there is sufficient evidence favoring the nonmoving

party for a jury to.return a verdict for that party. See Anderson, 477 U.S. at 249. “The mere □

existence of a scintilla of evidence in support of the [nonmoving party’s] position [is]

insufficient ....” Id. at 252; see Beale v. Hardy, 769 F.2d 213, 214 (4th Cir. 1985) (“The

nonmoving party, however, cannot create a genuine issue of material fact through mere speculation

or the building of one inference upon another.”). Only factual disputes that affect the outcome under

substantive law properly preclude summary judgment. See Anderson, 477 U.S. at 248.

A.

Defendants move for summary judgment on Robinson’s unreasonable seizure claim under

U.S.C. § 1983. Defendants argue that no genuine issue of material fact exists concerning whether

Officer Best had probable cause to believe Robinson had violated N.C. Gen. Stat. § 14-223 when

Officer Best seized Robinson in order to put him in handcuffs. See [D.E. 39] 5-11. Robinson

responds that “any resistance, delay, or obstruction that took place after Officer Best decided to arrest

Mr. Robinson and place him in handcuffs is irrelevant” and that Robinson’s conduct before Officer

Best’s decision to arrest him does not satisfy N.C. Gen. Stat. § 14-223. See [D.E. 46] 8-12.

“A warrantless arrest of an individual in a public place for a felony, or a misdemeanor

committed in the officer’s presence, is consistent with the Fourth Amendment if the arrest is

supported by probable cause.” Maryland v. Pringle, 540 U.S. 366, 370 (2003). To prevail on a

section 1983 claim alleging a violation of the Fourth Amendment due to an unlawful arrest, a

plaintiff must demonstrate that the arrest was not supported by probable cause. See, e.g., Miller v.

Prince George’s Cnty., 475 F.3d 621, 627 (4th Cir. 2007).

. ,

“To determine whether an officer had probable cause for an arrest, we examine the events

leading up to the arrest and then decide whether these historical facts, viewed from the standpoint

of an objectively reasonable police officer, amount to probable cause.” Dist. of Columbia v. Wesby,

583 U.S. 48, 56-57 (2018) (quotations omitted); see Pringle, 540 U.S. at 371; Ornelas v. United

States, 417 U.S. 690, 696 (1996); Beck v. Ohio, 379 U.S. 89, 91 (1964); Wilson v. Kittoe, 337 F.3d

. 392, 398 (4th Cir. 2003). “Because probable cause deals with probabilities and depends on the

totality of the circumstances, it is a fluid concept that is not readily, or even usefully, reduced to a

neat set of legal rules.” Wesby, 583 U.S. at 57 (quotations omitted); see Pringle, 540 U.S. at 371;

Illinois v. Gates, 462 U.S. 213, 241-46 (1983); United States v. Dickey-Bey, 393 F.3d 449, 454 (4th

Cir. 2004); Porterfield v. Lott, 156 F.3d 563, 569 (4th Cir. 1998). “[T]he probable-cause standard

__ is a practical, nontechnical conception that deals with the factual and practical considerations of

everyday life on which reasonable and prudent men, not legal technicians, act.” Pringle, 540 U.S.

at 370 (quotations omitted); see Ornelas, 517 U.S. at 695; Dickey-Bey, 393 F.3d at 453-54; Gomez

v. Atkins, 296 F.3d 253, 262 (4th Cir. 2002). In evaluating objective reasonableness, what the police

officer observed is highly relevant; the police officer’s subjective beliefs are not. See, e.g.,

Devenpeck v. Alford, 543 U.S. 146, 153 (2004). Probable cause “requires only a probability or

substantial chance of criminal activity, not an actual showing of such activity.” Wesby, 583 U.S. at

57 (quotation omitted); Gates, 462 U.S. at 243-44, 243 n.13. “Probable cause is not a high bar.”

Wesby, 583 U.S. at 57 (quotation omitted).

Under section 14-223, “[i]fany person shall willfully and unlawfully resist, delay or obstruct

a public officer in discharging or attempting to discharge a duty of his office, he shall be guilty of

a Class 2 misdemeanor.” N.C. Gen. Stat. § 14-223. The elements of the offense are:

1) that the victim was a public officer;

2) that the [arrestee] knew or had reasonable grounds to believe that the victim was

a public officer;

3) that the victim was discharging or attempting to discharge a duty of his office;

4) that the [arrestee] resisted, delayed, or obstructed the victim in discharging or

attempting to discharge a duty of his office; and

5) that the [arrestee] acted willfully and unlawfully, that is intentionally and without

justification or excuse.

State v. Sinclair, 191 N.C. App. 485, 488-89, 663 S.E.2d 866, 870 (2008). Section 14-223 seeks

“to enforce orderly conduct in the important mission of preserving the peace . . . and upholding the

dignity of the law.” State v. Leigh, 278 N.C. 243, 251, 179 S.E.2d 708, 713 (1971). The statute “is

concerned with acts threatening a public officer with injury only insofar as they interfere with the

performance of his official duties.” State v. Hardy, 298 N.C. 191, 197, 257 S.E.2d 426, 430 (1979).

“[MJerely remonstrating with an officer . . . or criticizing or questioning an officer while he □

is performing his duty, when done in an orderly manner, does not amount to obstructing or delaying

an officer in the performance of his duties.” Leigh, 278 N.C. at 251, 179 S.E.2d at 713; see State

v. Singletary, 73 N.C. App. 612, 615, 327 S.E.2d 11, 13 (1985); State v. Allen, 14 N.C. App. 485,

491, 188 S.E.2d 568, 573 (1972). Section 14-223 does not apply to “communications simply

intended to assert rights, seek clarification or obtain information in a peaceful way.” Burton v. City

of Durham, 118 N.C. App. 676, 681, 457 S.E.2d 329, 332 (1995). “Only those communications

intended to hinder or prevent an officer from carrying out his duty are discouraged by [N.C. Gen. □□□

Stat. § 14-223].” Id., 457 S.E.2d at 332. An individual need not engage in physical violence or

permanently impede an officer’s duties in order to violate N.C. Gen. Stat. § 14-223. See State v.

Burton, 108 N.C. App. 219, 225, 423 S.E.2d 484, 488 (1992).

Robinson argues that he took “no action, willful or otherwise, to impede or obstruct Officer

Best’s investigation.” [D.E. 46] 1 1. Robinson contends that he simply asked Drake who called the

police, questioned Officer Best about what the problem was, questioned Officer Best’s authority to

order Robinson into the apartment, and stood outside attempting to watch Officer Best speak to

Drake. See id.

Even viewing the evidence in the light most favorable to Robinson, Officer Best’s bodycam

video shows that Robinson did much more than simply “assert rights, seek clarification or obtain

information in a peaceful way.” Burton, 118 N.C. App. at 681, 457 S.E.2d at 332. Robinson’s

conduct at Drake’s apartment gave Officer Best probable cause to believe that Robinson “resisted,

delayed, or obstructed [Officer Best] in discharging or attempting to discharge a duty of his office.”

N.C. Gen. Stat. § 14-223. Officer Best was a police officer, and Robinson had reasonable grounds

to believe that Officer Best was a police officer based on his uniform, Drake’s admission that she

had called the police, and Robinson’s statements that Officer Best was a police officer. Moreover,

Officer Best told Robinson and Drake that he needed to speak with them separately in order to

investigate the domestic disturbance call. See DSMF ff 37-40; PSMF {ff 37-40; Bodycam

0:47-1:31. Officer Best repeatedly told Robinson that he would speak with Drake alone first to hear

her story and then speak with Robinson alone to hear his story. Officer Best repeatedly instructed

Robinson to go back inside the apartment, but Robinson willfully refused the orders. See DSMF {ff

37-45; PSMF ff 37-45; Bodycam 0:47-1:44, Additionally, Robinson directly interfered with

Officer Best’s attempts to investigate the domestic disturbance call by speaking with Drake and

ignored Officer Best’s orders. Robinson’s willful and unlawful conduct delayed and obstructed

Officer Best’s attempt to discharge the duties of his office. See DSMF {| 60-68; PSMF 60-68;

Bodycam 0:47-1 :44. Even if Robinson simply wanted to hear what Drake was saying to Officer

10

Best, Robinson willfully and unlawfully ignored Officer Best’s orders and prevented Drake from

speaking with Officer Best as he investigated the domestic disturbance call and thereby created

probable cause to believe that Robinson violated N.C. Gen. Stat. § 14-223.

In opposition, Robinson argues that standing outside the apartment with his arms crossed and

listening to Officer Best and Drake discuss the domestic disturbance call did not interfere with the

investigation. Robinson’s argument, however, ignores the context. Given the domestic disturbance

call, the significant size difference between Drake and Robinson, and Robinson’s agitated state, it

was objectively reasonable for Officer Best to believe that Drake would not be as forthcoming with

Officer Best during the investigation if Robinson was in Drake’s line of sight or earshot. Given this

context, Robinson’s actions constituted not only a repeated violation of Officer Best’s orders, but

also interference with Officer Best’s attempts to speak with Drake as part of Officer Best’s

investigation. Even viewing the totality of the circumstances of Officer Best’s interaction with

Robinson in the light most favorable to Robinson, Officer Best had probable cause to arrest

Robinson for violating N.C. Gen. Stat. § 14-223 before he seized Robinson. See, e.g., Wesby, 583

U.S. at 57. Thus, the court grants defendants’ motion for summary judgment on Robinson’s section

1983 unreasonable seizure claim.

: B. . .

Defendants move for summary judgment on Robinson’s excessive force claim under 42

U.S.C. § 1983. Robinson contends that Officer Best’s knee strikes to Robinson’s body at Drake’s

apartment in order to place Robinson in handcuffs constitutes excessive force under the Fourth

Amendment. See [D.E. 1] ff 30-40. Robinson also contends that Officer Best used excessive force

under the Fourth Amendment at the Explorer. See id.; [D.E. 46] 13.

11

The Fourth Amendment protects citizens from excessive force during arrest. See, e.g.,

Graham v. Connor, 490 U.S. 386, 395 (1989); Valladares v. Cordero, 552 F.3d 384, 388 (4th Cir.

2009); Young v. Prince George’s Cnty -, 395 F.3d 751, 758 (4th Cir. 2004); Jones v. Buchanan, 325

F.3d 520, 527 (4th Cir. 2003). To determine whether an officer’s use of force was excessive, the

court employs a “reasonableness” test. See, e.g., Graham, 490 U.S. at 396; Valladares, 552 F.3d at

388. The court examines the objective reasonableness of the officer’s actions, rather than the

subjective motivations of the officer. See, e.g., Graham, 490 U.S. at 397; Young, 355 F.3d at

756-57; Jones, 325 F.3d at 527.

The reasonableness test under the Fourth Amendment is not “capable of precise definition”

or mechanical application. Bell v. Wolfish, 441 U.S. 520, 559 (1979). The court must balance “the

nature and quality of the intrusion on the individual’s Fourth Amendment interests against the

countervailing governmental interests at stake.” Unus v. Kane, 565 F.3d 103, 117 (4th Cir. 2009)

(quoting Young, 355 F.3d at 757). “The 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.” Graham, 490 U.S. at 396. The court must carefully examine “the facts and circumstances

of each particular case, including the severity of the crime at issue, whether the suspect poses an

immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or

attempting to evade arrest by flight.” Id. The court also may consider the extent of the plaintiff's

injury. See Jones, 325 F.3d at 527. In evaluating these factors, the court must not engage in

Monday-morning quarterbacking, but instead must assess the reasonableness of the officer’s actions

based on the information possessed by the officer “immediately prior to and at the very moment” that

the officer employed the force. Betton v. Belue, 942 F.3d 184, 191 (4th Cir. 2019) (quotation

12

omitted); see Graham, 490 U.S. at 396-97; Waterman v. Batton, 393 F.3d 471, 477 (4th Cir. 2005);

Park v. Shiflett, 250 F.3d 843, 853 (4th Cir. 2001); Bostic v. Rodriguez, 667 F. Supp. 2d 591, 613

(E.D.N.C. 2009).

In seeking summary judgment, defendants argue that Officer Best’s use of knee strikes on

Robinson’s body at Drake’s apartment was reasonable under the circumstances in order to arrest

Robinson. See [D.E. 39] 13. Robinson does not address the knee strikes in his memorandum in

opposition. Thus, Robinson appears to have abandoned this issue. Nonetheless, the court is

obligated to “review the motion, even if unopposed, and determine from what it has before it

whether the moving party is entitled to summary judgment as a matter of law.” Robinson v. Wix

Filtration Corp., 599 F.3d 403, 409 n.8 (4th Cir. 2010) (quotation omitted); Maryland v. Universal

Elections, Inc., 729 F.3d 370, 380 (4th Cir. 2013); Custer v. Pan Am. Life Ins. Co., 12 F.3d 410, 416

(4th Cir. 1993).

Even viewing the evidence in light most favorable to Robinson, Officer Best’s use of knee

strikes was reasonable under the circumstances. Robinson repeatedly and actively ignored Officer

Best’s orders to put his hands behind his back and resisted arrest by grabbing a nearby railing and

refusing to let go. See DSMF {J 79-85; PSMF J 79-85; Bodycam 1:45-2:35. Robinson also

ignored Officer Best’s oral commands to release the railing and put his hands behind his back. See

DSMF {J 100-06; PSMF 4f 100-06; Bodycam 1:45-2:35. Only after the knee strikes to Robinson’s

body did Robinson release the rail and submit to arrest. See DSMF { 107; PSMF { 107; Bodycam

2:33-2:44. Moreover, Robinson admitted that Officer Best used only light force when applying the

knee strikes, commenting that Officer Best was “weak.” See DSMF § 126; PSMF { 126; Bodycam

3:48-4:31. Robinson also noted that he was “stronger” than Officer Best and that a “female voice”

telling Robinson to act reasonably, not Officer Best’s use of force, made Robinson release the

13

railing. Bodycam 3:48-4:31. In light of the totality of the circumstances surrounding the knee

strikes, Officer Best’s use of force by applying knee strikes to Robinson’s body was reasonable under _

the circumstances. Thus, the court grants defendants’ motion for summary judgment on the

excessive force claim regarding the knee strikes. See, e.g., Graham, 490 U.S. at 396-97.

As for the use of force at the Explorer, the court proceeds directly to the parties’ arguments

about qualified immunity. See Wesby, 583 U.S. at 62 n.7; Camreta v. Greene, 563 U.S. 692, 707

(2011); Pearson v. Callahan, 555 U.S. 223, 236 (2009); King v. Riley, —-—sF 4th, 2023 WL

4982353, at *3 (4th Cir. Aug. 4, 2023). Under the doctrine of qualified immunity, “government

officials performing discretionary functions generally are shielded from liability for civil damages

insofar as their conduct does not violate clearly established statutory or constitutional rights of which

reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); see City

of Escondido v. Emmons, 139 S. Ct. 500, 503-04 (2019) (per curiam); Kisela v. Hughes, 138 S. Ct.

1148, 1152-55 (2018) (per curiam); Wesby, 583 U.S. at 63; Hernandez v. Mesa, 582 U.S. 548, 554

(2017); Ziglar v. Abbasi, 582 U.S. 120, 150-51 (2017); King, 2023 WL 4982353, at *4-6; Sharpe

v. Winterville Police Dep’t, 59 F.4th 674, 682-84 (4th Cir. 2023); Burns-Fisher v. Romero-Lehrer,

57 F.4th 421, 424 (4th Cir. 2023); Tobey v. Jones, 706 F.3d 379, 385 (4th Cir. 2013). Qualified

immunity protects “all but the plainly incompetent or those who knowingly violate the law.” Malley

v. Briggs, 475 U.S. 335, 341 (1986); see Kisela, 138 S. Ct at 1152.

In analyzing qualified immunity, the court asks (1) “whether the facts that a plaintiff has

alleged or shown make out a violation of a constitutional right,” and (2) “whether the right at issue

was Clearly established at the time of [the] defendant’s alleged misconduct.” Pearson, 555 U.S. at

> The court recognizes the current state of qualified immunity doctrine and the debate about

whether the Supreme Court or Congress should change it. See, e.g., Sharpe, 59 F.4th at 684 n.12.

As a lower court, however, this court must follow binding precedent. See id.

14

232 (quotations omitted); see Wood v. Moss, 572 U.S. 744, 757 (2014); Knibbs v. Momphard, 30

F.4th 200, 214 (4th Cir. 2022); Brockington v. Boykins, 637 F.3d 503, 506 (4th Cir. 2011); Doe ex

rel. Johnson v. S.C. Dep’t of Soc. Servs., 597 F.3d 163, 169 (4th Cir. 2010). “A Government

official’s conduct violates clearly established law when, at the time of the challenged conduct, the

contours of a right are sufficiently clear that every reasonable official would have understood that

what he is doing violates that right.” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011) (cleaned up);

see Rivas-Villegas v. Cortesluna, 142 S. Ct. 4, 7 (2021) (per curiam); King, 2023 WL 4982353, at

*3; Sharpe, 59 F.4th at 682-84. Although a case need not be directly controlling, “existing precedent

must have placed the statutory or constitutional question beyond debate.” al-Kidd, 563 U.S. at 741;

see Rivas-Villegas, 142 S. Ct. at 7-8; King, 2023 WL 4982353, at *4—6; Sharpe, 59 F.4th at 682-84.

To determine whether an officer’s conduct violates clearly established law, a court must first

specifically define the right. See, e.g., City of Tahlequah v. Bond, 142 s. Ct. 9, 11 (2021) (per

curiam). “Such specificity is especially important in the Fourth Amendment context where it is

sometimes difficult for an officer to determine how the relevant legal doctrine, here excessive force,

will apply to the factual situation the officer confronts.” Id. (quotation omitted). Then, based on that

specifically defined right, the court must determine whether existing precedent placed the statutory

or constitutional question “beyond debate.” Kisela, 138 S. Ct. at 1152. “It is not enough that the rule

be suggested by then-existing precedent; the rule’s contours must be so well defined that it is clear

to a reasonable officer that his conduct was unlawful in the situation he confronted.” Bond, 142 S.

Ct. at 11 (quotation omitted); Wesby, 583 U.S. at 63. An officer is entitled to qualified immunity

“unless existing precedent ‘squarely governs’ the specific facts at issue.” Kisela, 138 S. Ct. at 1152

(quoting Mullenix v. Luna, 577 U.S. 7, 13 (2015) (per curiam)); Wesby, 583 U.S. at 63-66.

15

The Supreme Court has “not yet decided what precedents—other than [its] own—qualify as

controlling authority for purposes of qualified immunity.” Wesby, 583 U.S. at 66 n.8; see Kisela,

138 S. Ct. at 1152-54; Taylor v. Barkes, 575 U.S. 822, 825-27 (2015) (per curiam); City & Cnty.

of S.F. v. Sheehan, 575 U.S. 600, 613-14 (2015); Carroll v. Carman, 574 U.S. 13, 16-17 (2014) (per

curiam). In the Fourth Circuit, “existing precedent” includes precedent of the United States Supreme

Court, the Fourth Circuit, and the highest court of the state in which the action arose. See Doe ex

rel. Johnson, 597 F.3d at 176. It also includes “a consensus of persuasive authority from other

jurisdictions.” Sharpe, 59 F.4th at 683.

In Pearson, the Supreme Court held that the qualified-immunity analysis need not proceed

in a particular sequence, and that “[t]he judges of the district courts and the courts of appeals [may]

exercise their sound discretion in deciding which of the two prongs . . . should be addressed first in

light of the circumstances in the particular case at hand.” Pearson, 555 U.S. at 236; King, 2023 WL

4982353, at *3. Qualified immunity shields a defendant if the answer to either prong is “no.” See

al-Kidd, 563 U.S. at 735; Miller, 475 F.3d at 627; Bostic, 667 F. Supp. 2d at 605-06.

Defendants argue that even if Officer Best incorrectly believed that Robinson was resisting

arrest, Robinson was a threat to Officer Best’s safety, or that Robinson was attempting to flee, that

“in light of the legal landscape with regard to the application of force to restrain uncooperative

subjects, it would not have been clear to a reasonable officer in Officer Best’s shoes [on April 8,

2018,] that his conduct was unconstitutional.” [D.E. 39] 25. Defendants also argue that Officer Best

“should not be held liable if he made ‘bad guesses in gray areas,’ and his conduct fell short of

‘transgressing bright lines.’” Id. (quoting Waterman, 393 F.3d at 476).

Robinson responds that qualified immunity does not apply because genuine issues of material

fact exist concerning whether Robinson was attempting to flee and whether Robinson’s head or

16

Officer Best’s elbow shattered the Explorer’s rear windshield. Robinson contends that on the day

of Robinson’s arrest, caselaw had clearly established that “it was unlawful for an officer to slam a

handcuffed arrestee headfirst through the back of an SUV windshield.” [D.E. 46] 15. In support,

Robinson cites Valladares, 552 F.3d at390—91, Buchanan, 325 F.3d at 520, Kane v. Hargis, 987 F.2d

1005, 1006-07 (4th Cir. 1993) (per curiam), and Dean v. Jones, 984 F.3d 295 (4th Cir. 2021). See

[D.E. 46] 15-16.

- Even viewing the evidence in light most favorable to Robinson, Officer Best’s conduct on

April 8, 2018, did not violate Robinson’s clearly established Fourth Amendment rights. As

discussed, Officer Best’s bodycam video shows Officer Best walking with Robinson towards the

Explorer. Robinson is handcuffed with his hands behind his back, and they are talking. Robinson

is very agitated. As they arrive at the Explorer, the bodycam video shows Robinson pull away from

Officer Best, and Officer Best pull Robinson back towards Officer Best and the Explorer. The

bodycam video then shows the glass of the back of the Explorer breaking, Robinson and Officer Best

falling to the ground, Officer Best standing up with a bleeding left arm, and Robinson repeatedly

saying “fuck you” to Officer Best. The bodycam video does not show any injury to Robinson’s face

head.° Officer Best did not apply any additional force, repeatedly told Robinson to calm down,

and requested assistance.

An officer enjoys qualified immunity and is not liable for excessive force unless he has

violated a “clearly established” right, such that “it would [have been] clear to a reasonable officer

that his conduct was unlawful in the situation he confronted.” Kingsley v. Hendrickson, 576 U.S.

Photographs of Robinson at the KPD police station taken immediately after the incident

show that Robinson had no cuts or bleeding on his face. See [D.E. 42-4] 1, 6. While photographs

show cuts on Robinson’s right leg, Robinson’s right leg did not go through the Explorer’s window.

See id. at 4. Robinson obviously sustained the cuts on his right leg due to the fall.

17

389, 400 (2015). Courts must evaluate qualified immunity knowing that officers “are often forced

to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving.”

Graham, 490 U.S. at 397. Given the undisputed facts in the bodycam video concerning the use of

force at the Explorer, a reasonable officer in Officer Best’s position would not have clearly known

that the force that Officer Best used against Robinson at that moment violated Robinson’s □□□□□□□

established Fourth Amendment rights.

' Officer Best was alone at the scene of a domestic disturbance call. Officer Best had just

detained Robinson, a man larger than Officer Best. Robinson was agitated about the domestic

disturbance call, had just physically resisted arrest for resisting, delaying, or obstructing an

investigation, and required knee strikes in order to place him in handcuffs. Although Robinson did

not resist Officer Best while walking to the Explorer, Robinson remained agitated during the walk.

When Officer Best paused at the Explorer, Robinson pulled away from the Explorer and Officer Best

and towards an unknown destination. Only after Robinson pulled away from Officer Best and the

Explorer did Officer Best apply force, and the force that he applied was reasonable under the

circumstances. The force involved pulling Robinson towards the Explorer and attempting to use the

Explorer to immobilize Robinson. As part of that process, the rear window of the Explorer broke,

Officer Best cut his left arm, and both men fell to the ground. Officer Best then stood up and called

for assistance. Officer Best applied no more force to Robinson after Officer Best stood up and

Robinson remained on the ground.

Under these circumstances, a reasonable officer on April 8, 2018, would not have known that

the amount and type of force that Officer Best used on Robinson violated Robinson’s clearly

established Fourth Amendment rights. Officer Best pulled Robinson eeoreny enough towards the

Explorer for the glass on the rear window to break and to cut Officer Best’s left arm, but Officer Best

18

had to act quickly when Robinson pulled away from him and the Explorer. In light of Robinson’s

prior resistance to arrest, larger size, and agitated state, Officer Best knew that gentle force would

not allow Officer Best to control Robinson. Indeed, Robinson explicitly told Officer Best that

Officer Best’s knee strikes at the apartment were ineffective and did not lead Robinson to submit to

arrest or to comply with Officer Best’s orders. See DSMF f 126; PSMF { 126; Bodycam 3:48-4:31.

Although Robinson was in handcuffs as they approached the Explorer, Robinson had full use of his

legs and was not stationary or secure. Therefore, even viewing the use of force and context in light

most favorable to Robinson, Officer Best’s use of force did not violate Robinson’s clearly

__ established rights under the Fourth Amendment. See, e.g., Bond, 142 S. Ct. at 11; Graham, 490 U.S.

at 396-97; Craig v. Martin, 49 F.4th 404, 411-12 (Sth Cir. 2022) (holding that a police officer who

took a resisting handcuffed suspect to the ground and then stood up and kicked her in the leg in order

to put her into a police car did not constitute excessive force); Mason v. Las Vegas Metro. Police

Dep’t, 754 F. App’x 559, 562 (9th Cir. 2019) (unpublished) (holding that a police officer’s use of

force against a handcuffed suspect who resisted arrest did not constitute excessive force where the

detainee appeared to the officer to attempt to head-butt the officer and kick the officer and the officer

responded by pushing the detainee back down on a table with sufficient force that the detainee

received mouth and facial injuries when her face hit and broke the glass on the table); Salway v.

Norris, No. 2:20-CV-115, 2021 WL 2953668, at *5-6 (D. Wyo. July 14, 2021), aff'd, No. 21-8055,

2023 WL 1155868 (10th Cir. Jan. 31, 2023) (holding that a police officer striking a handcuffed.

suspect twice in the face did not constitute excessive force where the detainee continued kicking and

screaming while detained); Devoe v. Rebant, No. 05—71863, 2006 WL 334297, at *6—7 (E.D. Mich.

Feb. 13, 2006) (unpublished) (holding that a police officer’s use of a single drive stun from his taser

19

to a handcuffed suspect’s lower back after the subject refused eleven times to get into the police car

did not constitute excessive force).

In opposition, Robinson argues that Officer Best used unnecessary, gratuitous, and

disproportionate force on a secured, unarmed citizen, and thereby violated Robinson’s clearly

established rights under the Fourth Amendment. In support, Robinson cites Buchanan, Valladares,

Kane, and Dean. See Buchanan, 325 F.3d at 527-32 (holding that an officer was not entitled to

qualified immunity when he knocked down and jumped on a detainee thereby breaking the detainee’s

nose, lacerating his face, and bruising his ribs where the detainee was “drunk and using foul

language, was unarmed, handcuffed, and alone in a secured room in the sheriff’s headquarters”);

Valladares, 552 F.3d at 390 (holding that a 250-pound officer was not entitled to qualified immunity

when the officer gained control of a 135-pound 15-year old boy, but then picked up the boy and

twice slammed the non-resisting boy onto the hood of a car and broke his jaw); Kane, 987 F.2d at

1006-08 (holding that a 200-pound male officer was not entitled to qualified immunity when he

pinned a 100-pound woman detainee to the ground, but then repeatedly slammed her face into the

pavement thereby cracking three of her teeth, cutting her nose, and bruising her face; the woman was

already detained and not resisting arrest when the officer used the additional force and repeatedly

slammed the woman’s face into the pavement); Dean, 984 F.3d at 306-08 (holding that a

correctional officer was not entitled to qualified immunity where the officer had his knee on the

inmate’s chest and directly blasted pepper spray into the face of the completely restrained and non-

resisting inmate who was on the ground with his hands cuffed behind him).

The facts of this case are distinguishable from Buchanan, Valladares, Kane, and Dean. As

for Buchanan, unlike in Buchanan, Robinson was not secured in a police station when Officer Best

20

applied force. See Buchanan, 325 F.3d at 527. Moreover, the injuries in this case are not similar.

See id.

As for Kane, unlike the male officer in Kane who pinned down a detained woman less than

half his size and then repeatedly slammed her face into the pavement thereby cracking three of her

teeth, cutting her nose, and bruising her face, Robinson was a larger and stronger man than Officer

Best, had just successfully resisted multiple knee strikes from Officer Best, and was not under

Officer Best’s control at the time Officer Best used force. See Kane, 987 F.2d at 1006-07.

Moreover, unlike in Kane, Officer Best used reasonable force to restrain Robinson and no additional

force on Robinson once they fell to the ground. Instead, Officer Best stood up and called for

assistance. See id. Furthermore, Robinson did not sustain similar injuries to those in Kane. See id.

As for Valladares, in that case a five-foot-three inches tall 15-year old boy, who weighed 130

pounds and was not handcuffed, shoved an officer while attempting to intervene in a dispute between

the officer and the boy’s drunk 25-year old brother. See Valladares, 552 F.3d at 387. The officer,

who was six-foot-two-inches tall and weighed 250 pounds, responded by swinging the 15-year old

boy into a car, resulting in the boy falling to the ground. See id. at 387, 390. That use of force was

not excessive and immobilized the boy. See id. at 390. The officer, however, then picked the boy

up off the ground, had the boy “under full control,” stood the boy on his feet, and slammed the boy’s

head into the car twice, eventually breaking his jaw. Id. That additional use of force was sufficient

to sustain a claim of excessive force. See id. at 390-91.

Unlike in Valladares, Robinson (a man larger than Officer Best) was not “under full control”

at the Explorer when he pulled away from Officer Best. In order to regain control, Officer Best then

pulled Robinson back towards Officer Best and the Explorer to immobilize Robinson. As part of

Officer Best’s use of force, the glass of the back of the Explorer broke, Officer Best cut his left arm,

21

Robinson and Officer Best fell to the ground, and Officer Best then stood up. Officer Best’s left arm

was bleeding, and Robinson was still on the ground repeatedly yelling “fuck you” to Officer Best.

The bodycam video does not show any injury to Robinson’s face or head. Officer Best then

repeatedly told Robinson to calm down and requested assistance. Unlike in Valladares, when

Robinson fell to the ground, fully surrendered, and stopped resisting, Officer Best stood up and did

not continue to apply force. Furthermore, Robinson’s injuries are not similar to those in Valladares.

Therefore, Valladares does not help Robinson. os

As for Dean, the inmate’s excessive force claim involved a correctional officer using

additional force in the form of directly blasting pepper spray into the inmates’s face after the inmate

was on the ground, the officer had his knee on the inmate’s chest, and the inmate was “completely

restrained and not resisting.” Dean, 984 F.3d at 306. In this case, however, Robinson was not

completely restrained, subdued, or on the ground when Officer Best used force to regain control of

Robinson. Moreover, in Dean, the Fourth Circuit observed that qualified immunity was not available

to the correctional officer who used the pepper spray because it was clearly established law under

the Eighth Amendment at that time that a “correctional officer uses excessive force ifhe maliciously

uses force against an inmate who has been subdued, even if force might have been justified to control

the inmate only a before.” Id. at 310. Here, assuming without deciding that Eighth

Amendment excessive force precedent applies to Robinson’s Fourth Amendment claim, qualified

immunity applies because the force that Officer Best applied was reasonable and proportionate and

designed to subdue and control Robinson, as evidenced by the body camera footage. Furthermore,

unlike the correctional officer in Dean, Officer Best applied no more force once Robinson was

subdued and not resisting on the ground.

22

Ultimately, even viewing the evidence in the light most favorable to Robinson, “existing

precedent” did not put the legality of Officer Best’s use of force on April 8, 2018, “beyond debate”

under the Fourth Amendment. See al-Kidd, 563 U.S. at 741; Bond, 142 S. Ct. at 11; Rivas-Villegas,

142 S. Ct. at 7-8. Therefore, qualified immunity bars Robinson’s excessive force claim regarding

Officer Best’s use of force near the Explorer. See, e.g., Bond, 142 S. Ct. at 11; Graham, 490 U.S.

at 396-97; Craig, 49 F.4th at 411—12; Mason, 754 F. App’x at 562; Salway, 2021 WL 2953668, at

*5—6; Devoe, 2006 WL 334297, at *6-7.

C.

Defendants move for summary judgment on Robinson’s claims against defendant KPD and

his section 1983 claim against the City of Kinston. Robinson did not respond in opposition to this

issue. Nonetheless, the court analyzes whether defendants are entitled to summary judgment. See

Robinson, 599 F.3d at 409 n.8.

As for the KPD, state law determines the capacity of a state governmental body to be sued

in federal court. See Avery v. Burke Cnty., 660 F.2d 111, 113-14 (4th Cir. 1981). Accordingly, this

court must predict how the Supreme Court of North Carolina would rule on such a state law issue.

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.

_id.; Stahle v. CTS Corp., 817 F.3d 96, 99-100 (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.” Town of Nags Head v. Toloczko, 728 F.3d 391, 398

23

(4th Cir. 2013) (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 address an issue, this court “should not create

or expand a [s]tate’s public policy.” Time Warner Ent.-Advance/Newhouse_P’ship □□

Carteret-Craven Elec. Membership Corp., 506 F.3d 304, 314 (4th Cir. 2007) (alteration and

quotation omitted); see Day & Zimmermann, Inc. v. Challoner, 423 U.S. 3, 4 (1975) (per curiam);

- Wade v. Danek Med., Inc., 182 F.3d 281, 286 (4th Cir. 1999).

A North Carolina county is a legal entity which may be sued under certain circumstances.

See N.C. Gen. Stat. § 153A-11. Likewise, a North Carolina city or town is a legal entity which may

be sued under certain circumstances. See N.C. Gen. Stat. § 160A-485; see also id. § 160A-1(2)

(noting that ““[cl]ity’ is interchangeable with the terms ‘town’” for purposes of section 160A). There

is no corresponding statute, however, authorizing suit against a North Carolina county police

department or town police department. See, e.g., Parker v. Bladen Cnty., 583 F. Supp. 2d 736, 740

(E.D.N.C. 2008); Moore v. City of Asheville, 290 F. Supp. 2d 664, 673 (W.D.N.C. 2003), aff'd, 396

F.3d 385 (4th Cir. 2005); Coleman v. Cooper, 89 N.C. App. 188, 192, 366 S.E.2d 2, 5, disc. review

denied, 322 N.C. 834, 371 S.E.2d 275 (1988), overruled in part on other grounds by Meyer v. Walls,

N.C. 97, 489 S.E.2d 880 (1997). Accordingly, the court grants summary judgmenttoKPD and □

dismisses KPD as a defendant.

As for the City of Kinston, municipal entities cannot be held liable under section 1983 solely

because they employed a tortfeasor. See Bd. of Cnty. Comm’rs v. Brown, 520 U.S. 397, 403 (1997);

Hafer v. Melo, 502 U.S. 21, 25 (1991); King, 2023 WL 4982353, at *7. Rather, when a plaintiff

sues amunicipal entity—directly or in an official-capacity suit—a plaintiff must plausibly allege that

a “policy or custom” attributable to the municipal entity caused the violation of the plaintiff's □

federally protected rights. Hafer, 502 U.S. at 25; Kentucky v. Graham, 473 U.S. 159, 166 (1985);

24

Monell v. Dep’t of Soc. Servs. oF N.Y., 436 U.S. 658, 691-92 (1978), King v. Rubenstein, 825 F.3d

206, 223 (4th Cir. 2016); Owens v. Balt. City State’s Att’ys Off., 767 F.3d 379, 402 (4th Cir. 2014);

Santos v. Frederick Cnty. Bd. of Comm’rs, 725 F.3d 45, 469—70 (4th Cir. 2013); Lytle v. Doyle, 326

F.3d 463, 471 (4th Cir. 2003); Carter v. Morris, 164 F.3d 215, 218 (4th Cir. 1999). There are four

ways in which a plaintiff can establish municipal liability for a policy or custom:

(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 manifests 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.

Lytle, 326 F.3d at 471 (cleaned up).

A violation results from a municipal entity’s policy or custom if the violation resulted from

“a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that

body’s officers,” Monell, 436 U.S. at 690; see City of St. Louis v. Praprotnik, 485 U.S. 112, 121-22

(1988). Even ifa section 1983 plaintiff can identify the requisite final policymaking authority under

state law, however, a municipality is not liable simply because a section 1983 plaintiff “is able to

identify conduct attributable to the municipality.” Riddick v. Sch. Bd., 238 F.3d 518, 524 (4th Cir.

2000). Instead, a section 1983 “plaintiff must also demonstrate that, through its deliberate conduct,

the municipality was the ‘moving force’ behind the injury alleged.” Id. (quoting Bryan Cnty., 520

U.S. at 404) (emphasis omitted); see City of Canton v. Harris, 489 U.S. 378, 389-90 (1989). Thus,

a section 1983 plaintiff must show that “a municipal decision reflects deliberate indifference to the

risk that a violation of a particular constitutional or statutory right will follow the decision.” Bryan

Cnty., 520 U.S. at 411; see Harris, 489 U.S. at 392; Riddick, 238 F.3d at 524; Carter, 164 F.3d at

218-19.

25

“Deliberate indifference is a very high standard—a showing of mere negligence will not

meet it.” Grayson v. Peed, 195 F.3d 692, 695 (4th Cir. 1999). Deliberate indifference requires

“proof that a municipal actor disregarded a known or obvious consequence of his action” or inaction.

Bryan Cnty., 520 U.S. at 410. Moreover, even if a section 1983 plaintiff can show the requisite

culpability, a section 1983 plaintiff also must show “a direct causal link between the municipal

action [or inaction] and the deprivation of federal rights.” Id. at 404. Thus, deliberate indifference

and causation are separate requirements. See id.

Not every municipal official’s action or inaction represents municipal policy. Rather, the

inquiry focuses on whether the municipal official possessed final policymaking authority under state

law concerning the action or inaction. See, e.g., McMillian v. Monroe Cnty., 520 U.S. 781, 785-86

(1997); Pembaur v. City of Cincinnati, 475 U.S. 469, 482 (1986); Riddick, 238 F.3d at 523.

Robinson’s section 1983 claims against the City of Kinston stem from Officer Best’s

conduct. Robinson, however, has failed to present evidence that the City of Kinston enacted a

“policy or custom” that led to the alleged constitutional violations against Robinson. Robinson also

has not produced evidence attributing alleged constitutional violations or toritous conduct to the City

of Kinston. See McMillian, 520 U.S. at 785-86; Pembaur, 475 U.S. at 482; Riddick, 238 F.3d at

523. Thus, the court grants summary judgment to the City of Kinston on Robinson’s section 1983

claims.

D.

Defendants move for summary judgment on Robinson’s state law tort claims based on the

North Carolina doctrine of public-officer immunity. The public-officer immunity standard under

North Carolina law diverges from the qualified-immunity standard under section 1983. See

Cloaninger ex rel. Est. of Cloaninger v. McDevitt, 555 F.3d 324, 335 (4th Cir. 2009); Bostic, 667

26

F. Supp. 2d at 605; Andrews v. Crump, 144 N.C. App. 68, 76, 547 S.E.2d 117, 123 (2001). Under

North Carolina law,

a public official, engaged in the performance of governmental duties involving the

exercise of judgment and discretion, may not be held personally liable for mere

negligence in respect thereto. The rule in such cases is that an official may not be

held liable unless it be alleged and proved that his act, or failure to act, was corrupt

or malicious, or that he acted outside of and beyond the scope of his duties.

Meyer v. Walls, 347 N.C. 97, 112, 489 S.E.2d 880, 888 (1997). “As long as a public officer lawfully

exercises the judgment and discretion with which he is invested by virtue of his office, keeps within

the scope of his official authority, and acts without malice or corruption, he is protected from

liability.” Smith v. State, 289 N.C. 303, 331, 222 S.E.2d 412, 430 (1976). A public officer “acts

with malice when he wantonly does that which a man of reasonable intelligence would know to be

contrary to his duty and which he intends to be prejudicial or injurious to another.” Grad v. Kaasa,

312 N.C. 310, 313, 321 S.E.2d 888, 890 (1984). The act must be “done of wicked purpose, □□□□□

done needlessly, manifesting a reckless indifference to the rights of others.” Id. at 313, 321 S.E.2d

at 891 (quotation omitted). Unlike the objective standard under section 1983, North Carolina’s

public-official-immunity analysis examines the officer’s subjective state of mind. See Andrews, 144

N.C. App. at 76, 547 S.E.2d at 123; see also Alford v. Cumberland Cnty., No. 06-1569, 2007 WL

2985297, at *7 (4th Cir. Oct. 15, 2007) (unpublished).

Viewing the evidence in the light most favorable to Robinson, no rational jury could find that

Officer Best acted with subjective malice as is required to overcome public-official immunity under

North Carolina law. In opposition to this conclusion, Robinson argues that Officer Best

demonstrated “a wanton and reckless indifference for the rights of others because he could have

seriously injured or even killed Robinson by his actions.” [D.E. 46] 17. Officer Best’s bodycam

video belies this argument. Moreover, Robinson’s argument fails to address Officer Best’s

27

subjective state of mind, and Robinson produced no evidence that Officer Best used force for any

reason other than to regain control of Robinson. See Alford, 2007 WL 2985297, at *7; Andrews,

144.N.C. App. at 76, 547 S.E.2d at 123.

Next, Robinson argues that Officer Best’s malice exists because “he clearly intended to batter

Mr. Robinson with the vehicle and intentionally threw Mr. Robinson head first at the SUV.” [D.E.

46] 17. Viewing the evidence in light most favorable to Robinson (particularly the bodycam video),

the evidence does not show that Officer Best acted with malice. Although the bodycam video shows

Officer Best applying force, the record does not demonstrate Officer Best’s subjective intent to injure

Robinson. See Wilcox v. City of Asheville, 222 N.C. App. 285, 289, 730 S.E.2d 226, 230 (2012).

If anything, the evidence shows that Officer Best did not have the subjective intent to injure

Robinson. As the bodycam footage demonstrates, after Robinson and Officer Best fell to the ground,

Officer Best immediately stood up and attempted to calm Robinson down and called for assistance.

When assistance arrived, Officer Best informed other officers that Robinson required medical

attention. See Bodycam 5:07-6:43. Even though Robinson aggressively yelled “fuck you” multiple

times at Officer Best after they fell to the ground, Officer Best did not continue to apply force,

attempt to aggressively restrain Robinson, or delay other officers from attending to Robinson upon

arrival. See id. Instead, Officer Best attempted to diffuse the situation. See id. On this record, the

court grants summary judgment to defendants on Robinson’s state law claims.

E.

As for Robinson’s request for punitive damages, the claim fails under North Carolina law.

See N.C. Gen. Stat. § 1D-15. As for section 1983, punitive damages can only arise from conduct

involving “reckless or callous indifference to the federally protected rights of others, as well as for

conduct motivated by evil intent.” Cooper v. Dyke, 814 F.2d 941, 948 (4th Cir. 1987); see Smith

28

v. Wade, 461 U.S. 30, 56 (1983). Because there is no evidence that Officer Best acted with

malicious intent to injure Robinson, the court grants summary judgment to defendants concerning

punitive damages.

IL.

In sum, the court GRANTS defendants’ motion for summary judgment [D.E. 38].

Defendants may file a motion for costs in accordance with the Federal Rules of Civil Procedure and

this court’s local rules. The clerk shall close the case.

SO ORDERED. This 30 day of August, 2023.

J S C. DEVER II

United States District Judge

29