# Fox v. City of Greenville

> District Court, E.D. North Carolina · June 21, 2024

URL: https://www.frixlaw.com/law-library/cases/10253309

## Case

- **Court:** District Court, E.D. North Carolina
- **Decided:** June 21, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10253309

## How later opinions describe it (automated extraction)

- 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”

## Opinion text

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

10

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]

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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

16

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10253309. Public record. Not legal advice.