Fox v. City of Greenville

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NORTH CAROLINA

EASTERN DIVISION

Civil Action No: 4:23-CV-00133-M

DEMARCUS FOX,

Plaintiff,

V. ORDER

CITY OF GREENVILLE et al.,

Defendants.

This matter comes before the court on Defendants’ Motion for Partial Judgment on the

Pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure (the “Motion”) [DE 17]

and Plaintiff's Motion for Leave to Amend [DE 25]. For the reasons that follow, Plaintiff's Motion

is DENIED and Defendant’s Motion is GRANTED IN PART.

I. Background

a. Plaintiff's Statement of Facts!

Plaintiff is a resident of Greenville, North Carolina. DE 1 at 2,4. Defendants are the City

of Greenville (the “City”) and five of its police officers (the “Officers”), Officer Keith Knox,

Officer Brice Wordsworth, Officer Justin White, Officer Kurt Puerto, and Officer Justin Wooten.

Id. at 3. On the evening of October 7, 2022, Plaintiff was driving in Greenville and obeying all

traffic laws. Id. at 5. Officers were following Plaintiff in both marked and unmarked vehicles. Id.

They did not activate their dashboard cameras, but reported over their radios that Plaintiff was not

! For purposes of this order, the court will “assume the facts alleged in the complaint are true and draw all reasonable

in [Plaintiff's] favor.” Burbach Broad. Co. of Delaware v. Elkins Radio Corp., 278 F.3d 401, 406

committing any traffic infractions. Jd. Nevertheless, Officers attempted to initiate a traffic stop of

Plaintiff, at which point Plaintiff drove to his home and parked in the driveway. Jd. at 5-6

(allegation that Plaintiff “pulled into the driveway” “[s]hortly after” the Officers “activated their

lights”).

Officers then approached Plaintiff’s vehicle with guns drawn and ordered Plaintiff to exit

the vehicle. Jd. at 6. Plaintiff had his hands up inside his vehicle. Jd. Officers did not give Plaintiff

time to comply with their orders; Officer Knox grabbed Plaintiff by his dreadlocks and ripped him

from the vehicle with such force that several dreadlocks were torn from Plaintiff’s scalp. Jd. at 6-

7. Officer Knox, Officer White, and other Officers then slammed Plaintiff to the ground, and

punched and kicked him. /d. at 7. One Officer placed a knee on Plaintiff’s neck. Jd. Officer

Puerto joined in the beating. Jd. Officers Wordsworth and Wooten failed to activate their body-

worn cameras. /d. at 8. Officer Wooten assisted in the arrest and failed to intervene during the

beating. /d. Plaintiff never resisted. /d. at 7.

Plaintiff was arrested and charged with Fleeing/Eluding Arrest and Resisting a Public

Officer. Jd. at 10. Officers told him the charges would go away if he worked for them as a

confidential informant. /d. at 11. Plaintiff declined the Officers’ overture. /d. The charges were

still dismissed. /d.

The City has a de facto policy that approves the deactivation or covering of dashboard and

body-worn cameras during traffic stops and arrest. Jd. at 9, 14. The City also has “an established

practice” whereby its officers initiate contact with members of the public and then attempt to

provoke a response by subjecting those individuals to excessive force. Jd. at 14-15. The City also

failed to discipline the Officers for their role in Plaintiff's arrest, establishing a de facto policy that

approves of excessive force and unlawful arrests. /d. at 12-13.

Plaintiff brings several claims for relief:

1) A Fourth Amendment unlawful stop claim against all Defendants;

2) A Fourth Amendment excessive force claim against all Defendants;

3) A Fourth Amendment unlawful arrest claim against all Defendants;

4) A Fourth Amendment malicious prosecution claim against all Defendants;

5) common law battery claim against the Officers;

6) A common law claim for intentional infliction of emotional distress (“ITED”) against all

Defendants;

7) A“claim” for punitive damages against the Officers; and

8) A “claim” for injunctive relief against all Defendants.

Id. at 15-21. Plaintiff seeks damages, injunctive relief, attorney’s fees, and other relief. Jd. at 22.

b. Procedural History

Plaintiff initiated this action on August 8, 2023. DE 1. Defendants answered the Complaint

on October 17, 2023. DE 15. Defendants then moved for partial judgment on the pleadings on

November 28, 2023. DE 17; see also DE 18 (Memorandum in Support). Defendants seek

dismissal of (1) all claims against the City, (2) Plaintiff’s (ED claim, and (3) Plaintiffs battery

claim against Officer Wooten. DE 17 at 2.

Plaintiff did not respond to Defendants’ Motion. See Docket Entries dated Nov. 28, 2023,

to present. A Scheduling Order was entered in this case on December 4, 2023. DE 20. That Order

provides tthat “[m]otions to amend the pleadings . . . shall be made by Plaintiff no later than April

2, 2024,” and that the Order did not “relieve a party of any requirement to obtain court approval

prior to... . amending its pleadings.” Jd. at 1.

On April 2, 2024, Plaintiff filed a motion requesting leave of court to file an amended

complaint. DE 23 at 1. After receipt of a deficiency notice from the Clerk of Court, Plaintiff re-

filed the motion for leave on April 6. DE 24. After receipt of a second deficiency notice, Plaintiff

re-filed the motion for leave on April 12. DE 25; see also DE 26 (Supporting Memorandum).

Defendants oppose the motion for leave. DE 31. Defendants’ Motion and Plaintiff’s Motion are

now fully briefed and ready for decision.

Il. Legal Standards

a. Pleading Standards

A complaint must contain “a short and plain statement of the claim showing that the pleader

is entitled to relief.” Fed. R. Civ. P. 8(a)(2). This Rule does not require “detailed factual

allegations,” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), but the allegations must cross the

threshold “between possibility and plausibility of entitlement to relief,” Bell Atl. Corp. v. Twombly,

550 U.S. 544, 557 (2007) (internal brackets and quotation marks omitted). Put another way,

although the /gbal Court made clear that “Rule 8 marks a notable and generous departure from the

hypertechnical, code-pleading regime of a prior era, [the Rule] does not unlock the doors of

discovery for a plaintiff armed with nothing more than conclusions.” Jqbal, 556 U.S. at 678-79.

“After the pleadings are closed--but early enough not to delay trial--a party may move for

judgment on the pleadings.” Fed. R. Civ. P. 12(c).* “A motion for judgment o[n] the pleadings

pursuant to Rule 12(c) is analyzed under the same standard as a Federal Rule of Civil Procedure

12(b)(6) motion to dismiss.” Mendenhall v. Hanesbrands, Inc., 856 F. Supp. 2d 717, 723

2 “Failure to state a claim upon which relief can be granted, .. . or . . . a legal defense to a claim may be raised... by

a motion under Rule 12(c).” Fed. R. Civ. P. 12(h)(2)(B); Shelton v. Safeway, Inc., No. 10-CV-2358, 2011 WL

1869827, at *3 (D. Md. May 16, 2011) (explaining that “‘a failure to submit a 12(b)(6) defense before pleading is not

fatal because a defendant retains the right to raise [that] defense . . . after the pleadings are closed by filing a motion

for judgment on the pleadings”).

(M.D.N.C. 2012). That standard requires the court to accept as true all of the well-pleaded factual

allegations contained within the Complaint and draw all reasonable inferences in the plaintiff's

favor. Hall vy. DIRECTV, LLC, 846 F.3d 757, 765 (4th Cir. 2017).

In that regard, a motion for judgment on the pleadings, just like ‘“[a] motion to dismiss

under Rule 12(b)(6)[,] tests the sufficiency of a complaint; importantly, it does not resolve contests

surrounding the facts, the merits of a claim, or the applicability of defenses.” Republican Party of

N. Carolina vy. Martin, 980 F.2d 943, 952 (4th Cir. 1992); accord Edwards v. City of Goldsboro,

178 F.3d 231, 243 (4th Cir. 1999). “In the limited circumstances where the allegations of the

complaint give rise to an affirmative defense, the defense may be raised under Rule 12(b)(6), but

only if it clearly appears on the face of the complaint.” Richmond, Fredericksburg & Potomac R.

Co. v. Forst, 4 F.3d 244, 250 (4th Cir. 1993). As a result, motions to dismiss “generally cannot

reach the merits of an affirmative defense.” Goodman v. Praxair, Inc., 494 F.3d 458, 464 (4th Cir.

2007).

Further, when faced with a Rule 12(b)(6) motion to dismiss, the court typically limits its

review to “the allegations of the complaint itself.” Goines v. Valley Cmty. Servs. Bd., 822 F.3d

159, 165-66 (4th Cir. 2016). Beyond those allegations, the court may also consider “documents

incorporated into the complaint by reference, and matters of which a court may take judicial

notice.” Tellabs, Inc. vy. Makor Issues & Rts., Ltd., 551 U.S. 308, 322 (2007).

However, “[u]nlike on a Rule 12(b)(6) motion, . .. on a Rule 12(c) motion the court may

consider the Answer as well.” Alexander v. City of Greensboro, No. 1:09-CV-293, 2011 WL

3360644, at *2 (M.D.N.C. Aug. 3, 2011). The court therefore accepts as true the allegations in the

answer “to the extent they have not been denied or do not conflict with the complaint.” Farmer v.

Wilson Hous. Auth., 393 F. Supp. 2d 384, 386 (E.D.N.C. 2004) (internal quotation mark omitted).

Further, the court “may consider documents incorporated by reference in the [answer].” Parks v.

Alteon, Inc., 161 F. Supp. 2d 645, 649 n.1 (M.D.N.C. 2001). The court may also consider exhibits

attached to a defendant’s Rule 12(c) motion. Massey v. Ojaniit, 759 F.3d 343, 353 (4th Cir. 2014).

Although the court is authorized to consider some extrinsic evidence when considering a

motion for judgment on the pleadings, that evidence must be “central to one of the claims [in the

complaint] and [its] authenticity [must be] undisputed.” Horsley v. Feldt, 304 F.3d 1125, 1135

(11th Cir. 2002). If the court fails to exclude a document that does not fit that rubric, “the motion

must be treated as one for summary judgment under Rule 56.” Fed. R. Civ. P. 12(d). On the other

hand, “[w]here plaintiff has actual notice of all the information in the [defendant’s] papers and has

relied upon these documents in framing the complaint the necessity of translating a Rule 12[(c)]

motion into one under Rule 56 is largely dissipated.” Cortec Indus., Inc. v. Sum Holding L.P., 949

F.2d 42, 48 (2d Cir. 1991).

b. Amendments to Pleadings

“Generally, motions to amend a pleading are governed by Federal Rule of Civil Procedure

15(a).” 360 Mortg. Grp., LLC v. Stonegate Mortg. Corp., No. 5:14-CV-00310, 2016 WL 9805217,

at *1 (E.D.N.C. June 30, 2016). Ifa party can no longer amend its pleading as a matter of course,

it “may amend its pleading only with the opposing party’s written consent or the court’s leave.”

Fed. R. Civ. P. 15(a)(2). “The court should freely give leave when justice so requires.” Id.

However, entry of a scheduling order in a case makes Federal Rule of Civil Procedure

16(b)(4) conditionally relevant to the amendment analysis. If a party tails to amend its pleading,

within the time prescribed by the scheduling order, “a party must first demonstrate ‘good cause’ to

modify the scheduling order deadlines, before also satisfying the Rule 15(a)(2) standard for

amendment.” Cook v. Howard, 484 F. App’x 805, 814-15 (4th Cir. 2012) (quoting Fed. R □□□□ P.

16(b)(4) (“A schedule may be modified only for good cause and with the judge’s consent.”)); see

also Montgomery v. Anne Arundel Cnty., Maryland, 182 F. App’x 156, 162 (4th Cir. 2006) (holding

that where plaintiff “filed her motion to amend the complaint after the deadline set by the

scheduling order for amending pleadings, Federal Rule of Civil Procedure 16(b) applies”); Wright

& Miller, 6A FED. PRAC. & PROc. Civ. § 1522.2 (3d ed.) (explaining that, “to the extent [] other

federal rules, such as Rule 15 governing pleading amendments, contain a more lenient standard

than good cause, the Rule 16(b) standard controls any decisions to alter a scheduling order for

purposes of making pleading amendments and it must be satisfied before determining whether an

amendment should be permitted under Rule 15”).

“In deciding whether good cause exists under Rule 16(b), the court focuses on the movant’s

diligence.” 360 Mortg. Grp., 2016 WL 9805217, at *2. In other words, the movant must “show

that the deadline[] cannot reasonably be met despite [its] diligence.” Cook, 484 F. App’x at 815.

Demonstrating good cause requires some explanation as to the “reasons for [a party’s] tardy

submission.” Montgomery, 182 F. App’x at 162.

Hii. Analysis

a. Plaintiff's Motion to Amend

Plaintiff seeks leave of court to file an amended complaint that includes additional details

about the emotional distress he suffered as a result of his encounter with the Officers. DE 25 at 2.

These details are important to support his IIED claim; without them, Defendants contend that the

Complaint fails to state a claim for IED. DE 18 at 23-24. But Plaintiff did not properly move to

amend his Complaint until after the deadline in the Scheduling Order, and his untimely Motion

does not attempt to establish good cause.

Plaintiff first asserts that he filed the “motion to amend the Complaint on April 2, 2024,

prior to the expiration of the deadline,” and so therefore “Plaintiff submits that Plaintiff’s motion

to Amend the Complaint did not amount to undue delay.” DE 26 at 6. But Plaintiff’s initial motion

requesting leave did not comply with this court’s local rules, in that it was not “filed with an

accompanying supporting memorandum.” Local Civil Rule 7.1(e).? Motions that fail to comply

. with the Local Rules are subject to summary denial, so the court disagrees that Plaintiff timely

filed his motion for leave. See, e.g., Dykstra v. Temple, No. 4:18-CV-145, 2019 WL 96217, at *2

(E.D.N.C. Jan. 3, 2019) (summarily denying motion that failed to comply with local rule); Mills v.

Thomas, No. 5:12-CT-3007, 2013 WL 1163794, at *3 (E.D.N.C. Mar. 20, 2013) (same); Dozier v.

Champion, No. 5:06-CT-3041, 2007 WL 9760428, at *1 (E.D.N.C. Aug. 2, 2007) (same).

Plaintiff further argues that Defendants would not be prejudiced by the amendment, and

that the amendment is not sought in bad faith. DE 26 at 7-9. But neither of these arguments

materially bear on the court’s good cause inquiry under Rule 16(b)(4), which trains on “the

movant’s diligence” in seeking to meet a deadline. 360 Mortg. Grp., 2016 WL 9805217, at *2. A

party needs to satisfy Rule 16(b)(4) before the court considers Rule 15(a)(2). Cook, 484 F. App’x

at 814-15; Montgomery, 182 F. App’x at 162.

As Defendants point out in opposition to Plaintiff's Motion, they identified pleading

deficiencies in Plaintiff’s IED claim when they filed their Motion for partial judgment on the

pleadings on November 28, 2023. DE 31 at 2-3. At that point, Plaintiff “was on notice” of a

potential deficiency in his Complaint. Odyssey Travel Ctr, Inc. v. RO Cruises, Inc., 262 F. Supp.

2d 618, 632 (D. Md. 2003) (denying motion to amend filed one week after deadline in scheduling

order). Plaintiff then waited over four months before filing the initial motion for leave which, as

3 The initial motion also did not comply with this court’s practice preferences because it did not contain any statement

reflecting prior consultation with opposing counsel and the views of the opposing party on the motion.

the court has explained, did not comply with the Local Rules. DE 23. Plaintiff did not file a

compliant motion until April 12, ten days after the deadline in the Scheduling Order. DE 25; see

also DE 20 at 1. In addition, the information Plaintiff seeks to add to his Complaint was known

to him at the time he instituted this action. DE 31 at 6; see also DE 25 at 2.

Taken together, the court does not find good cause to be met where a party waits several

months to move to amend a complaint with information that the party has possessed since

commencement of a lawsuit, and then does not properly do so until after the deadline prescribed

by a scheduling order has passed. See Rassoull v. Maximus, Inc., 209 F.R.D. 372, 374 (D. Md.

2002) (explaining that a “[l]ack of diligence and carelessness are hallmarks of failure to meet the

good cause standard’) (internal quotation mark omitted). Because Plaintiff has not demonstrated

good cause, the court does not reach the Rule 15(a)(2) analysis. See Marcum v. Zimmer, 163 F.R.D.

250, 254 (S.D.W. Va. 1995) (emphasizing that, for Rule 16(b)(4) analysis, if the “party was not

diligent, the inquiry should end”). Plaintiff’s Motion for leave is denied.*

4 To the extent relevant, the court also disagrees with the contention that permitting Plaintiff's amendment would not

prejudice Defendants. The filing of an amended complaint would render moot Defendants’ Motion. See Henderson

v. Wells Fargo Bank, No. 3:09-CV-01, 2009 WL 1259355, at *4 n.4 (W.D.N.C. May 5, 2009) (advising plaintiff “that

if his Motion to Amend were allowed, the Motion for Judgment on the pleadings would have been moot, and defendant

would then be required to file either an answer or other response to the Amended Compiaint, which could include a

new Motion for Judgment on the Pleadings based on the allegations in that amended peading.”); see also Young v.

City of Mount Ranier, 238 F.3d 567, 573 (4th Cir. 2001) (‘an amended pleading supersedes the original pfeading,

rendering the original pleading of no effect”). Because Defendants would have to refile an Answer and their □□□□□□□

Plaintiff could then take advantage of a new briefing schedule and file a response in opposition, which he previously

failed to do. Granting Plaintiff's Motion would, in effect then, both authorze Plaintiff to file an amended pleadling

and give him a second chance to oppose a partially dispositive motion. Unde the circumstances, that would prejuciice

Defendants.

At bottom, the court can discern no prejudice to either party that would result from denying Plaintiff's motion.

Plaintiffs IIED claim is based on identical facts as his excessive force claim. See DE | at 14, 19-20. “[C]ompiensatory

damages for emotional distress are compensable under § 1983.” Price v. City of Charlotte, N.C., 93 F.3a 1241, 1250

(4th Cir. 1996). And a party may not recover twice for the same injury. Gordon v. Pete’s Auto Serv. of Denbizn, inc.,

637 F.3d 454, 460 (4th Cir. 2011) (explaining that the Fourth Circuit recognizes “the widely accepted p-oh itition on

duplicative damages”). Therefore, if Plaintiff ultimately prevails on his excessive force claim, he may recover

damages for his emotional distress, rendering his IIED claim duplicative and unnecessary.

b. Defendant’s Motion

i. Section 1983 Claims against the City

Defendants contend that the Complaint fails to state a Section 1983 claim against the City

because his allegations as to certain de facto policies of the City are conclusory and based only

“upon information and belief.” DE 18 at 4-5. Defendants further assert that municipal liability

under Section 1983 cannot be based on one instance of a failure to punish. /d. at 12-14. Defendants

finally argue that Plaintiff’s state law claims are barred by governmental immunity. Jd. at 19-22.

As noted, Plaintiff did not respond in opposition to Defendants.

Municipalities such as the City are “to be included among those persons to whom § 1983

applies.” Monell v. Dept of Soc. Servs. of City of New York, 436 U.S. 658, 690 (1978). But

“municipal liability” cannot “be premised on the mere fact that the municipality employed the

offending official.” City of Oklahoma City v. Tuttle, 471 U.S. 808, 810 (1985). Rather, a

municipality’s liability under Section 1983 must be derived from an “action [taken] pursuant to

official municipal policy” that “caused a constitutional tort.” Monell, 436 U.S. at 691; see also id.

(“a municipality cannot be held liable under § 1983 on a respondeat superior theory”) (italics in

original).

“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 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 v. Doyle, 326 F.3d 463, 471 (4th Cir. 2003) (internal brackets and quotation marks

omitted). Plaintiff’s claims against the City proceed under theory (2), in that he alleges the City’s

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Chief of Police decided to turn a “blind eye” to the unlawful arrest and excessive force that Plaintiff

suffered by failing to discipline the Officers, DE 1 at 12-13, and theory (4), in that Plaintiff alleges

the City has unofficial policies sanctioning the obstruction of cameras and use of excessive force

during traffic stops and arrests, id. at 9, 14-15. Neither theory states a plausible claim for relief.

First, as to the theory that the City established de facto policy by failing to discipline the

Officers, “the mere fact that a supervisor failed to discipline a subordinate . . . does not a municipal

policy make.” Monfils v. Taylor, 165 F.3d 511, 517 (7th Cir. 1998). Courts have tried but failed

to identify “a single case in which municipal inaction against an officer’s alleged unconstitutional

conduct constitutes a policy or custom under the law.” Jones v. Town of Ashland, Virginia, No.

3:07-CV-462, 2007 WL 9808158, at *5 (E.D. Va. Nov. 15, 2007). In short, “a municipal policy

of authorizing or encouraging police misconduct . . . cannot be inferred from a municipality’s

isolated decision not to discipline a single officer for a single incident of illegality.” Berry v.

McLemore, 670 F.2d 30, 33 (Sth Cir. 1982); accord Santiago v. Fenton, 891 F.2d 373, 382 (1st

Cir. 1989) (declining to “hold that the failure of a police department to discipline in a specific

instance is an adequate basis for municipal liability under Monell’).

In certain circumstances, such as “when a final policymaker has the authority to review the

decision of a subordinate, its approval of that allegedly unconstitutional decision can [] give rise

to liability under Section 1983.” Starbuck v. Williamsburg James City Cnty. Sch. Bd., 28 F.Ath

529, 534 (4th Cir. 2022) (emphasis added). But this ratification theory of municipal liability

requires that the final policymaker have an opportunity to either halt or unwind a prior

unconstitutional act by a subordinate. E.g., Hall v. Marion Sch. Dist. No. 2,31 F.3d 183, 196 (4th

Cir. 1994) (school district could face Monell liability for school board’s dismissal of teacher

because board supported school superintendent’s efforts to retaliate against teacher after she wrote

11

letter that was critical of board’s handling of funds); Starbuck, 28 F.4th at 535 (school board could

be liable where it upheld student’s suspension based on comments he made about school shooting).

Without the opportunity to reverse a prior unconstitutional act, subsequent municipal inaction

cannot fairly be described as “the moving force behind the injury of which the plaintiff complains.”

Board of Cnty. Comm’rs of Bryan Cnty., Okl. v. Brown, 520 U.S. 397, 405 (1997).° As such,

declining to discipline a subordinate is not tantamount to ratifying the underlying conduct of that

subordinate.

Failing to punish a completed (alleged) constitutional violation does not give rise to

municipal liability under a ratification theory for the related reason that “post-facto approval . . .

cannot possibly have caused the constitutional violation.” Franklin v. City of Charlotte, 64 F.4th

519, 537 (4th Cir. 2023). Claims for municipal liability entail “rigorous requirements of

culpability and causation,” Brown, 520 U.S. at 415, because “a municipality cannot be held liable

under § 1983 on arespondeat superior theory,” Monell, 436 U.S. at 691 (1978) (italics in original).

See also Tuttle, 471 U.S. at 823-24 (“Proof of a single incident of unconstitutional activity is not

sufficient to impose liability under Monell, unless proof of the incident includes proof that it was

caused by an existing, unconstitutional municipal policy, which policy can be attributed to a

municipal policymaker.”) The City, by deciding not to discipline the Officers, did not ratify their

conduct because the City had no opportunity to halt or reverse their alleged use of excessive force.

See Starbuck, 28 F.4th at 535; Franklin, 64 F.4th at 537. Because the City did not ratify the

Officers’ actions, it was not the moving force behind the alleged constitutional violation, and did

5 In other circumstances, “a city’s complete failure to maintain an adequate system of disciplining officers who act

unconstitutionally might also ‘fairly be said to represent a policy for which the city is responsible.’” Cox v. D.C., 821

Supp. 1, 12 (D.D.C. 1993) (quoting Bielevicz v. Dubinon, 915 F.2d 845, 852 (3d Cir. 1990)), aff'd, 40 F.3d 475

(D.C. Cir. 1994); see also Leach v. Shelby Cnty. Sheriff, 891 F.2d 1241, 1248 (6th Cir. 1989); Harris v. City of

Pagedale, 821 F.2d 499, 504 (8th Cir. 1987). But “a policy of failing to take action,” id., cannot be demonstrated by

one example, such as that alleged here, see City of Canton, Ohio v. Harris, 489 U.S. 378, 390-91 (1989).

12

not cause it. See Brown, 520 U.S. at 405; Monell, 436 U.S. at 691. The City therefore cannot face

municipal liability for its failure to punish the Officers.

Plaintiff's other theory, that the City has unofficial policies sanctioning the obstruction of

cameras and use of excessive force during traffic stops and arrests, fares no better because it is

solely based on conclusory allegations. See DE 1 at 9, 14-15. “[{C]onclusory allegations ‘upon

information and belief? are insufficient to establish a Monell claim because Plaintiff does not

explain which facts, other than [his own experience], support [his] belief that his alleged

deprivation of rights is part of the [City’s] existing ‘customs, patterns, or practices.’” Fleming v.

City of New York, No. 18-CV-4866, 2019 WL 4392522, at *8 (S.D.N.Y. Aug. 27, 2019) (quoting

D'Alessandro v. City of New York, 713 F. App’x 1, 10 (2d Cir. 2017)). “Plaintiff must do more

than allege in a conclusory fashion that the [City] maintains an unwritten policy or custom of

permitting the types of wrongs Plaintiff experienced.” Segura v. City of La Mesa, 647 F. Supp. 3d

926, 936 (S.D. Cal. 2022) (collecting cases).

The Complaint alleges “[u]pon information and belief” (1) that the Officers’ failure to

activate body-worn cameras “was in line with a de facto policy and practice of the City,” and (2)

that the City also “has an established practice having it[s] law enforcement officers stop suspects

without reasonable articulable suspicion and then having their law enforcement officers apply

excessive force.” DE 1 at 9, 14-15. But “merely plop[ping] ‘upon information and belief? in front

ofaconclusory allegation” does not “render it non-conclusory.” Mystic Retreat Med Spa & Weight

Loss Ctr. v. Ascentium Cap. LLC, 615 F. Supp. 3d 379, 385 (M.D.N.C. 2022) (quoting Citizens

United v. Schneiderman, 882 F.3d 374, 384 (2d Cir. 2018)). Put another way, deploying “upon

information and belief” in front of an element of a cause of action is “‘an inadequate substitute for

providing detail as to why” a particular “element is present in an action.” Malibu Media, LLC v.

13

Doe, No. 13-CV-365, 2014 WL 7188822, at *4 (D. Md. Dec. 16, 2014). Or, to paraphrase

Twombly and Iqbal, Plaintiff's “bare assertion” that the City has certain de facto policies

authorizing unconstitutional conduct by its law enforcement officers “amount[s] to nothing more

than a ‘formulaic recitation of the elements’” of a Monell claim. Iqbal, 556 U.S. at 681 (quoting

Twombly, 550 U.S. at 555).

Plaintiff has not alleged any factual matter, apart from the circumstances of his own

encounter with the Officers, that would suggest the existence of unofficial City policy related to

use of cameras or force during traffic stops and arrests. See generally DE 1. The Complaint’s

analytical leap to allege the existence of policy based on an isolated example of alleged misconduct

is the sort of “unreasonable conclusion[]” that the court need not accept as true. Nemet Chevrolet,

Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir. 2009). Because Rule 8 “does not

unlock the doors of discovery for a plaintiff armed with nothing more than conclusions,” Jqbal,

556 U.S. at 678-79, the court finds that Plaintiff has failed to state a Monell claim against the City.

Defendant’s Motion will be granted as to Plaintiff's Section 1983 claims against the City.

ii. State Law Claims against the City

Defendants also contend that Plaintiff’s state law claims against the City are subject to

dismissal because “the City has not waived its governmental immunity,” which acts as “a complete

bar” to those claims. DE 18 at 19. The court agrees: governmental immunity, an affirmative

defense, “is a complete immunity from being sued in court.” Ballard v. Shelley, 257 N.C. App.

561, 564, 811 S.E.2d 603, 605 (2018) (internal quotation mark omitted). This immunity extends

to municipalities in their “provision of police services.” Evans v. Chalmers, 703 F.3d 636, 655

(4th Cir. 2012). Although motions for judgment on the pleadings “generally cannot reach the

merits of an affirmative defense,” Goodman, 494 F.3d at 464, here the “allegations . . . giv[ing]

14

rise to [the] affirmative defense . . . clearly appear[] on the face of the complaint,” Richmond,

Fredericksburg & Potomac, 4 F.3d at 250.

A city may waive governmental immunity by purchasing liability insurance. N.C.G.S. §

160A-485(a). The Complaint alleges “[u]pon information and belief” that the City “has waived

its governmental immunity through the purchase of liability insurance.” DE 1 at 3. However,

“[t]he City has presented uncontroverted evidence that it does not have liability insurance for the

conduct alleged here.” Doriety v. Sletten, No. 1:23-CV-211, 2023 WL 4872570, at *1 (M.D.N.C.

July 28, 2023); see also DE 17-3 at 14 (City’s insurance policy, which “applies to the tort liability

of any insured only to the extent that such tort liability is not subject to any defense of

governmental immunity under North Carolina law”); DE 17-2 at 1 (affidavit that City did not have

any other “liability insurance policies or agreements with any local government risk pool” at the

time of the events giving rise to this action).

Because governmental immunity implicates the court’s jurisdiction, the court does not

accept as true the Complaint’s allegations where there are directly contradicted by evidence. See

D.P. Riggins & Assocs., Inc. v. Am. Bd. Companies, Inc., 796 F. Supp. 205, 208 (W.D.N.C. 1992);

see also Evans, 703 F.3d at 655 (reminding that “courts may not lightly infer a waiver of

immunity”); Doriety, 2023 WL 4872570, at *1 (“When the defendant submits evidence .. .

directed to jurisdiction along with the motion to dismiss, the complaint’s allegations can no longer

be taken as true or controlling”) (internal quotation mark omitted). Plaintiff offered no response

to Defendants’ evidence, which establishes that the City has not waived its governmental immunity

through the purchase of liability insurance. Government immunity therefore applies, and bars

Plaintiffs state law claims against the City. See Ballard, 257 N.C. App. at 564, 811 S.E.2d at 605.

Defendants’ Motion will be granted as to those claims.

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iii WED Claim

As perhaps forecast by the court’s treatment of Plaintiff’s Motion, the court further finds

that the Complaint “fail[s] to plausibly allege that Defendants’ alleged actions caused [Plaintiff]

severe emotional distress.” DE 18 at 23. Under North Carolina law, the tort of “[i]ntentional

infliction of emotional distress requires outrageous conduct that is intended to cause and does

cause severe emotional distress.” Clark v. Clark, 280 N.C. App. 403, 415, 867 S.E.2d 704, 715

(2021). Severe emotional distress “means any emotional or mental disorder, such as, for example,

neurosis, psychosis, chronic depression, phobia, or any other type of severe and disabling

emotional or mental condition which may be generally recognized and diagnosed by professionals

trained to do so.” Johnson v. Ruark Obstetrics & Gynecology Assocs., P.A., 327 N.C. 283, 304,

395 S.E.2d 85, 97 (1990). A complaint’s “[a]llegations that fail to identify a severe and disabling

emotional or mental condition which may be generally recognized and diagnosed by professionals

trained to do so are not sufficient.” Moschos v. Moschos, 287 N.C. App. 162, 166, 882 S.E.2d 401,

404 (2022).

Here, the Complaint merely alleges that “Plaintiff has suffered severe emotional distress.”

DE 1 at 14, 20. “These allegations fail to identify a severe and disabling emotional or mental

condition which may be generally recognized and diagnosed by professionals trained to do so, and

fail to allege sufficient facts concerning the type, manner, or degree of severe emotional distress

Plaintiff claims to have experienced.” Moschos, 287 N.C. App. at 167, 882 S.E.2d at 404. “[S]uch

failure is fatal to [Plaintiff’s] claim for intentional infliction of emotional distress.” Redman v. Am.

Airlines, Inc., No. 3:22-CV-00515, 2023 WL 4768696, at *6 (W.D.N.C. July 26, 2023); see also

McFadyen v. Duke Univ., 786 F. Supp. 2d 887, 980 (M.D.N.C. 2011) (dismissing HED claim where

complaint did “not include any specific identification of any particular Plaintiff's mental or

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emotional condition or the nature of his emotional distress”). Defendants’ Motion is granted as to

Plaintiff’s IED claim.

iv. Battery Claim against Officer Wooten

Lastly, Defendants argue that Plaintiff “fails to state a plausible claim for battery against

[Officer] Wooten, because he does not allege an offensive touching committed by Wooten.” DE

18 at 24. Accepting as true the factual allegations contained within the Complaint and drawing all

reasonable inferences in Plaintiff's favor, the court cannot agree. Hall, 846 F.3d at 765.

True, a battery requires some “harmful or offensive contact.” Hawkins v. Hawkins, 101

N.C. App. 529, 533, 400 S.E.2d 472, 475 (1991), aff'd, 331 N.C. 743, 417 S.E.2d 447 (1992). But

the Complaint specifies that its use of the term “Defendant Officers” means all Officers,

“individually and collectively.” DE 1 at 3. And the Complaint further alleges that “Defendant

Officers [applied] excessive force against Plaintiff by pushing and pulling him in multiple

directions, slamming him to the ground, placing a knee on Plaintiff's neck, repeatedly punching

and kneeing Plaintiff, continuously pulling Plaintiff by his hair, and needlessly grinding Plaintiff's

face into the ground,” and that “Defendant Officers . . . violently punched, kicked and kneed

Plaintiff.” Jd. at 7. The Complaint adds that “Defendant Wooten[] assisted with the arrest [and]

did nothing to intervene.” Jd. at 8. At this stage of the proceedings, those allegations are sufficient

to state a battery claim against Officer Wooten. Defendants’ Motion is therefore denied as to this

claim.

IV. Conclusion

Plaintiff's Motion for leave to amend is DENIED. Defendant’s Motion for partial

judgment on the pleadings is GRANTED IN PART and DENIED IN PART. The City is

DISMISSED as a Defendant, and Plaintiff's TED claim is DISMISSED.

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Plaintiff's Section 1983 claims and state law battery claim will proceed against the Officer

Defendants.

SO ORDERED this_2 ot day of June, 2024.

aa Pus uu

RICHARD E. MYERS II

CHIEF UNITED STATES DISTRICT JUDGE

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