WALL v. GULLEDGE

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

FELISHA WALL, )

)

Plaintiff, )

)

v. ) 1:22-cv-31

)

MARK GULLEDGE, individually )

and in his official capacity, )

J.R. DENNIS SMITH, individually )

and in his official capacity, )

JAMES P. DAVIS, individually )

and in his official capacity, )

DUSTIN CAIN, individually )

and in his official capacity, )

NORVIN L. FORRESTER, in his )

individual capacity, HOLLY )

SMITH, individually and in her )

official capacity, GREAT )

AMERICAN INSURANCE COMPANY )

and OHIO CASUALTY INSURANCE )

COMPANY, )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

OSTEEN, JR., District Judge

Before this court are three motions to dismiss Plaintiff

Felisha Wall’s complaint. First, a motion filed by Defendants

Richmond County Sheriff Mark Gulledge, Richmond County Sheriff’s

deputies J.R. Dennis Smith, James Davis, Dustin Cain, and Norvin

Forrester and Ohio Casualty Insurance Company (“Ohio Casualty”)

(collectively “Law Enforcement Defendants”). (Doc. 8.)1 Second,

former Magistrate Judge Holly Smith’s motion to dismiss.2 (Doc.

16.) Third, Great American Insurance Company’s (“Great

American”) motion to dismiss. (Doc. 14.)

This court will grant in part and deny in part Law

Enforcement Defendants’ motion to dismiss. (Doc. 8.) The motion

will be granted as to Counts Seven, Eight, Eleven, and Thirteen.

It will be denied as to Counts One, Four, and Five.

This court will stay the case as to Holly Smith and Great

American until the North Carolina Supreme Court issues its

opinion in Wynn v. Frederick. See 278 N.C. App. 596, 863 S.E.2d

790, review allowed in part, denied in part, 876 S.E.2d 273

(N.C. 2022).

I. FACTUAL BACKGROUND

On a motion to dismiss, a court must “accept as true all of

the factual allegations contained in the complaint . . . .” Ray

v. Roane, 948 F.3d 222, 226 (4th Cir. 2020). The facts, taken in

the light most favorable to Plaintiff, are as follows.

On the evening of December 2, 2019, Plaintiff’s father,

William Wall, arrived at the Richmond County Sheriff’s Office in

1 This court will refer to the individual defendants J.R.

Smith, Davis, Cain, and Forrester as “Deputy Defendants.”

2 This court will use “Smith” when referring to former

magistrate Holly Smith, and “J.R. Smith” when referring to J.R.

Dennis Smith.

Rockingham, North Carolina to turn himself in on an outstanding

warrant. (Compl. (Doc. 2) ¶¶ 41–43.)3 William was accompanied by

four of his children and two grandchildren. (Id. ¶ 44.) The Wall

family was worried that William might be mistreated while

turning himself in. (Id. ¶ 45.) The magistrate on duty, Holly

Smith, arrived sometime after the Wall family. (Id. ¶¶ 47–50.)

The complaint states that Smith was personally acquainted with

the Wall family, (id. ¶ 48), but the allegations do not explain

the extent or nature of that acquaintance. William entered the

magistrate’s office accompanied by Plaintiff (his daughter) and

two of her sisters. (Id. ¶ 53.) Uniformed Sheriff’s deputies

were present in the magistrate’s office and did not tell

Plaintiff or her relatives to remain outside. (Id. ¶ 55.)

Once he entered the office, William calmly waited for Smith

to see him. (Id. ¶ 56.) From the lobby, Sheriff’s deputies

ushered William into an adjacent room where he was taken into

custody on the outstanding warrant. (Id. ¶ 68.) Eventually,

William was moved from this adjoining room to the magistrate’s

workstation. (Id. ¶ 71.) Once in the magistrate’s office,

William spoke with Smith about obtaining a restraining order

3 All citations in this Memorandum Opinion and Order to

documents filed with the court refer to the page numbers located

at the bottom right-hand corner of the documents as they appear

on CM/ECF.

against a former romantic partner. (Id.) Smith declined to

entertain the request. (Id.) William was then placed in

handcuffs and escorted from the building. (Id. ¶ 75.)

Smith’s workstation in the magistrate’s office resembled a

traditional work office, not a courtroom. (Id. ¶ 59.) The

magistrate’s workstation was separated from the lobby by a block

wall and a thin plexiglass window that allowed someone standing

in the lobby to observe what happened in the office. (Id. ¶¶ 62–

63.) On the evening in question, Smith wore street clothes and

no robe. (Id. ¶ 57.)

While Plaintiff’s father was being processed, Plaintiff and

her sisters remained in the lobby. (Id. ¶¶ 69, 74.) From her

vantage point, Plaintiff used her cellphone to record Smith in

her office through the plexiglass window. (Id. ¶ 64.) Smith was

aware Plaintiff was recording her and never instructed Plaintiff

to stop recording. (See id. ¶¶ 64–65.) Plaintiff and her sisters

spoke amongst themselves and with the uniformed Sheriff’s

deputies. (Id. ¶ 70.) Smith did not instruct them to quiet down

or inform them that speaking could result in being found in

contempt of court. (Id. ¶ 66–67).

After William was led away, Sheriff’s deputies asked

Plaintiff and her sisters to leave the area. (Id. ¶ 77.) The

family set off in the direction of their vehicle, (id. ¶ 79),

while several Sheriff’s deputies stood in the parking lot, (id.

¶ 82). Plaintiff walked to her car backwards while filming on

her cellphone. (Id. ¶¶ 80–81, 83.) Although the complaint does

not clarify what the subject of her recording was, since she was

exiting the magistrate’s office and walking backwards, she was

presumably filming the Sheriff’s deputies standing outside. She

also told J.R. Smith that “I am just recording,” suggesting she

may have been filming him. (See id. ¶ 81.) As she was recording,

Plaintiff told her sisters: “don’t give them a reason to lock us

up.” (Id. ¶ 84.)

Suddenly, J.R. Smith ordered the other officers to arrest

Plaintiff and her sisters. (Id. ¶ 87.) J.R. Smith ordered

Plaintiff to place her hands behind her back; J.R. Smith,

Forrester, and Davis placed handcuffs on her while Cain assisted

with the arrest. (Id. ¶ 92–93.) At various points, Plaintiff was

forced to lie face down on the pavement with her hands behind

her back, (id. ¶ 94), and was pinned against her vehicle while

her two young sons in the car looked on, (id. ¶¶ 97–99).

Plaintiff was also punched in the face and struck multiple times

on the side of her body. (Id. ¶ 101.) J.R. Smith told Plaintiff

“I want to know how it feels,” grabbed her vaginal area and left

leg near her groin, grabbed her buttocks, and inserted a finger

into Plaintiff’s buttocks and vagina. (Id. ¶¶ 103–05.) Deputies

also grabbed Plaintiff’s breasts and choked her. (Id. ¶¶ 106–

07.)

While in handcuffs, Plaintiff was led across the parking

lot to the jail where she was booked. (Id. ¶¶ 109, 111.)

Plaintiff demanded to know what she was being charged with but

was not told. (Id. ¶ 110) No warrant had been issued for

Plaintiff’s arrest. (Id. ¶ 89.)

After Plaintiff’s arrest, Smith and several Sheriff’s

deputies conferred about what charges they should bring against

her. (Id. ¶ 112.) A second magistrate who had arrived on the

scene, Carrie Prelipp, issued an arrest warrant against

Plaintiff for disorderly conduct at a public building and for

resisting an officer. (Id. ¶¶ 113–14, 116.) Smith found

Plaintiff in criminal contempt of court for “interrupting the

court proceedings, raising her voice, using ‘crass’ language and

giving Holly Smith the finger.” (Id. ¶ 119.) Plaintiff alleges

that Smith held Plaintiff in contempt to punish her for

recording. (See id. ¶ 124.) After the incident, Smith recalled

that she found Plaintiff in contempt of court for being loud,

obnoxious, and videotaping her. (Id. ¶ 127.)

Magistrate Baxley set a $5,000 bond related to the criminal

contempt offense,4 and Magistrate Prelipp set a $15,000 bond for

disorderly conduct and resisting a public officer. (Id. ¶ 126.)

When Plaintiff arrived at the jail, she felt soreness in

her vaginal area and requested medical assistance. (Id. ¶¶ 128–

30.) Jail officials refused her request. (Id. ¶ 131.) After

Plaintiff was released from jail, she sought medical care. (Id.

¶ 134.) A sexual assault nurse examiner conducted a forensic

examination and confirmed that Plaintiff’s injuries in her

vaginal region were consistent with force. (Id. ¶ 135.) The

nurse reported the matter to the State Board of Investigations.

(Id. ¶ 136.) In addition to sexual assault, Plaintiff received

treatment for contusion of flank and preorbital hematoma of her

right eye — the deputies’ punch to her face caused a black eye.

(Id. ¶¶ 102, 137.)

After the incident, Plaintiff experienced difficulty

concentrating and sleeping, flashbacks, fear, anger, and

noticeable mood changes. (Id. ¶ 138.) She was diagnosed with

posttraumatic stress disorder (PTSD). (Id.)

As a result of her time in jail, Plaintiff missed her first

day at a new job and was fired. (Id. ¶ 133.) Due to the pending

4 Defendant Smith notes the $5,000 bond set by Magistrate

Baxley was for Plaintiff’s appeal of the criminal contempt

finding. (See Doc. 17 at 5 n.4.)

criminal charges, Plaintiff struggled to find other work in the

healthcare industry for two years and had to settle for

different jobs with lower pay. (Id. ¶ 140.) Additionally,

because of the incident, Plaintiff’s acceptance to Winston-Salem

State University was rescinded; while she later enrolled at a

different university, it charged a higher tuition. (Id. ¶ 142.)

Plaintiff was not convicted of a crime arising out of the

incident. (Id. ¶ 143.) By January 2021, all criminal charges

were dismissed. (Id.) The disorderly conduct in a public

building charge was dismissed on September 12, 2019 after the

court found the warrant was fatally defective on that charge.

(See Criminal File in State v. Felicia Wall, 18CR52957 (Doc. 9–

2) at 6.)5 The resisting a public officer charge was dismissed on

January 19, 2021 because Plaintiff “complied.” (See id. at 2.)

Presumably because Plaintiff completed eight community service

hours. (See id. at 2–4.)

5 Normally, when considering a motion to dismiss, a court

cannot look to matters beyond the complaint without converting

the motion into one for summary judgment. Fed. R. Civ. P. 12(d).

However, “a court may consider official public records,

documents central to plaintiff’s claim, and documents

sufficiently referred to in the complaint so long as the

authenticity of these documents is not disputed.” Witthohn v.

Fed. Ins., 164 F. App’x 395, 396 (4th Cir. 2006). Here, the

court is permitted to consider Plaintiff’s state court criminal

record without converting her motion to dismiss into a motion

for summary judgment.

Plaintiff claims that following the incident, Smith

periodically contacted the prosecutor’s office seeking updates

on the case pending against Plaintiff. (Compl. (Doc. 2) ¶ 146.)

On October 11, 2019, Smith attended an initial court appearance

on behalf of her husband, who had received a speeding ticket.

(Id. ¶¶ 149, 151.) While there, “Smith suggested to the on-duty

prosecutor that she would be amenable to dropping the contempt

of court charges against [Plaintiff] in exchange for the

prosecutor’s office dropping the traffic ticket against []

Smith’s husband.” (Id. ¶ 152.) The prosecutor reported Smith’s

comment up the chain of command. (Id. ¶ 153.) An evidentiary

proceeding was held to determine whether Smith should be removed

as a magistrate. (Id. ¶ 154.) While Smith denied any wrongdoing,

she later resigned. (Id. ¶ 155.) Despite the allegations against

Smith, the prosecutor assigned to Plaintiff’s case did not

dismiss the charges against Plaintiff. (Id. ¶¶ 156–59.)

II. PROCEDURAL HISTORY

Plaintiff filed her complaint in North Carolina state court

alleging thirteen claims against eight defendants. (Id.)

Defendants removed to federal court. (See Doc. 1.)

The counts in Plaintiff’s complaint are as follows:

(1) Excessive Force in violation of 42 U.S.C. § 1983

against J.R. Smith, Davis, Forrester, and Cain in their

individual capacities;

(2) First Amendment Retaliation in violation of 42 U.S.C.

§ 1983 against J.R. Smith and Holly Smith in their individual

capacities;

(3) Common Law Obstruction of Justice against Holly Smith

in her individual and official capacities;6

(4) Malicious Prosecution in violation of 42 U.S.C. § 1983

against Holly Smith and J.R. Smith in their individual

capacities;

(5) Common Law Malicious Prosecution against Holly Smith

and J.R. Smith in their individual and official capacities;

6 Plaintiff’s complaint is unclear on whether Smith is sued

in her official capacity alone or her individual and official

capacities as to Count Three. At one point, the complaint says,

“Smith is sued in her individual and official capacities as to

all state law claims where she is listed as a Defendant.”

(Compl. (Doc. 2) ¶ 25.) However, when describing Count Three,

Plaintiff says Smith is sued in her official capacity with

regard to this Count.” (Id. ¶ 189.) As the court will stay this

action as to Smith, this issue need not be resolved at this

time.

(6) Common Law Battery against J.R. Smith, Davis, and Cain

in their individual and official capacities and against

Forrester in his individual capacity;7

(7) Deliberate Indifference in violation of 42 U.S.C.

§ 1983 against J.R. Smith, Davis, Forrester, and Cain in their

individual capacities;

(8) Injury to Prisoner by Jailer in violation of N.C. Gen.

Stat. § 162–55 against J.R. Smith, Davis, and Cain, in their

individual and official capacities, and against Forrester in his

individual capacity;

(9) State Law Intentional Infliction of Emotional Distress

against J.R. Smith in his individual and official capacity;

(10) State Law Abuse of Process against Holly Smith in her

individual and official capacity;

(11) Civil Conspiracy in violation of 42 U.S.C. § 1983

against Holly Smith and J.R. Smith in their individual

capacities;

(12) Action on Surety Bond under N.C. Gen. Stat. § 58-76-5

against Holly Smith in her individual and official capacity and

Great American;

7 Unlike the other Deputy Defendants, Forrester is only sued

in his individual capacity. (Compare id. ¶ 20, with id. ¶¶ 11,

14, and 17.) This court has therefore amended its case caption

and directs the parties to do the same in subsequent filings to

this court.

(13) Action on Surety Bond under N.C. Gen. Stat. § 58-76-5

against Sheriff Gulledge and Ohio Casualty. (See Compl. (Doc. 2)

¶¶ 11, 14, 17, 20, 25, 160–292.)

The first motion to dismiss was filed by Defendants

Gulledge, J.R. Smith, Davis, Cain, Forrester, and Ohio Casualty.

(Doc. 8.) They seek to dismiss: (1) the “official capacity

claims” in Count One against J.R. Smith, Davis, Forrester, and

Cain; (2) the official and individual capacity claim against

J.R. Smith in Count Four; (3) the official and individual

capacity claims against J.R. Smith in Count Five; (4) the

official and individual capacity claims against J.R. Smith,

Davis, Forrester, and Cain in Count Seven; (5) the official and

individual capacity claims against J.R. Smith, Davis, Forrester,

and Cain in Count Eight; (6) the official and individual

capacity claims against J.R. Smith in Count Eleven; and (7) the

claim against Sherriff Gulledge and Ohio Casualty in Count

Thirteen. (Defs.’ Partial Mot. to Dismiss (“Partial Mot. to

Dismiss”) (Doc. 8) at 2–3.) Law Enforcement Defendants filed a

brief in support of their motion, (Br. in Supp. of Partial Mot.

to Dismiss (Doc. 9)). Plaintiff responded, (Pl.’s Resp. in Opp.

to the Mot. to Dismiss Filed by Defs. Gulledge, J.R. Smith,

Davis, Cain, Forrester, and Ohio Casualty (“Pl.’s Resp. to

Partial Mot. to Dismiss”) (Doc. 13)), and Law Enforcement

Defendants replied, (Reply to Pl.’s Resp. to Defs.’ Partial Mot.

to Dismiss (“Reply to Partial Mot. to Dismiss”) (Doc. 18)).

A second motion to dismiss was filed by Holly Smith, (Doc.

16), accompanied by a brief in support, (Doc. 17). Plaintiff

responded, (Doc. 20), and Smith replied, (Doc. 22).

Finally, a third motion to dismiss was filed by Defendant

Great American. (Doc. 14.) Great American filed a brief in

support of its motion. (Doc. 15.) Plaintiff responded. (Doc.

19.) Great American replied. (Doc. 21.)

III. STANDARD OF REVIEW

“To survive a motion to dismiss, a complaint must contain

sufficient factual matter, accepted as true, to ‘state a claim

to relief that is plausible on its face.’” Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,

550 U.S. 544, 570 (2007)). To be facially plausible, a claim

must “plead[] factual content that allows the court to draw the

reasonable inference that the defendant is liable” and must

demonstrate “more than a sheer possibility that a defendant has

acted unlawfully.” Id. (citing Twombly, 550 U.S. at 556). When

ruling on a motion to dismiss, a court must accept the

complaint’s factual allegations as true. Id. Further, “the

complaint, including all reasonable inferences therefrom, [is]

liberally construed in the plaintiff’s favor.” Estate of

Williams-Moore v. All. One Receivables Mgmt., Inc., 335 F. Supp.

2d 636, 646 (M.D.N.C. 2004) (citation omitted).

Nevertheless, sufficient factual allegations must “raise a

right to relief above the speculative level” so as to “nudge[]

the[] claims across the line from conceivable to plausible.”

Twombly, 500 U.S. at 555, 570; see Iqbal, 556 U.S. at 680. A

court cannot “ignore a clear failure in the pleadings to allege

any facts which set forth a claim.” Estate of Williams-Moore,

335 F. Supp. 2d at 646. Consequently, even given the deferential

standard allocated to pleadings at the motion to dismiss stage,

a court will not accept mere legal conclusions as true and

“[t]hreadbare recitals of the elements of a cause of action,

supported by mere conclusory statements, [will] not suffice.”

Iqbal, 556 U.S. at 678. The court is “not bound to accept as

true a legal conclusion couched as a factual allegation.” Id.

IV. ANALYSIS

A. Law Enforcement Defendants’ Motion to Dismiss

Law Enforcement Defendants have moved to dismiss seven

counts in the complaint for failure to state a claim pursuant to

Federal Rule of Civil Procedure 12(b)(6). Several of the claims

Law Enforcement Defendants moved to dismiss name fewer than all

Law Enforcement Defendants and some name additional Defendants.

(See, e.g., Compl. (Doc. 2) at 20–22.)

1. Count One: Excessive Force under § 1983

Law Enforcement Defendants seek to dismiss the “official

capacity claims against J.R. Smith, Davis, Forrester, and Cain

in the first claim for relief, excessive force under 42 U.S.C.

§ 1983[.]” (Br. in Supp. of Partial Mot. to Dismiss (Doc. 9)

at 2–3.) However, as Plaintiff notes, the complaint “does not

sue any Defendant in an official capacity under Section 1983.”

(Pl.’s Resp. to Partial Mot. to Dismiss (Doc. 13) at 2.) Based

on that statement, Law Enforcement Defendants “withdr[e]w their

request to dismiss the section 1983 official capacity claims

asserted in Counts I, IV, VII, and XI.” (Reply to Partial Mot.

to Dismiss (Doc. 18) at 2.) Therefore, Law Enforcement

Defendants’ request to dismiss the Section 1983 official

capacity claims in the complaint are not justiciable because the

facts alleged do not present a controversy as to any official

capacity claims made under Count One. As such, this court will

deny the motion to dismiss Plaintiff’s claims against Law

Enforcement Defendants in their official capacities under

Section 1983.

2. Count Four: Malicious Prosecution under § 1983

Law Enforcement Defendants next seek to dismiss Plaintiff’s

claim against J.R. Smith for malicious prosecution under § 1983.

(Compl. (Doc. 2) at 24–25.) “A ‘malicious prosecution claim

under § 1983 is properly understood as a Fourth Amendment claim

for unreasonable seizure which incorporates certain elements of

the common law tort.’” Evans v. Chalmers, 703 F.3d 636, 647 (4th

Cir. 2012) (citing Lambert v. Williams, 223 F.3d 257, 261 (4th

Cir. 2000)). To make out a claim, “a plaintiff must show ‘that

the defendant (1) caused (2) a seizure of the plaintiff pursuant

to legal process unsupported by probable cause, and (3) criminal

proceedings terminated in plaintiff’s favor.’” Hupp v. Cook, 931

F.3d 307, 324 (4th Cir. 2019) (citing Evans, 703 F.3d at 647).

Here, Defendants do not dispute that they caused a seizure

of Plaintiff; instead, they argue that she cannot make out the

third element of her claim because at least one of the criminal

charges was not favorably terminated. (See Br. in Supp. of

Partial Mot. to Dismiss (Doc. 9) at 12.) As a result of the

December 2 incident, Plaintiff was charged with misdemeanor

disorderly conduct and misdemeanor resisting a public officer.

(Pl.’s Criminal File (Doc. 9–2) at 10.) The disorderly conduct

charge was dismissed on September 2, 2019 after the judge found

that the “warrant is fatally defective on this charge.” (Id. at

6 (cleaned up).) The resisting a public officer charge was

dismissed after Plaintiff performed eight hours of community

service. (Id. at 2–4.)

The parties disagree when criminal proceedings can be said

to “terminate[] in [a] plaintiff’s favor.” Hupp, 931 F.3d at

324. However, the Supreme Court has since resolved the question.

“To demonstrate a favorable termination of a criminal

prosecution for purposes of the Fourth Amendment claim under

§ 1983 for malicious prosecution, a plaintiff need only show

that his prosecution ended without a conviction.” Thompson v.

Clark, 142 S. Ct. 1332, 1335 (2022). Both charges against

Plaintiff were dismissed without a conviction. (See Pl.’s

Criminal File (Doc. 9–2) at 2, 6.) Therefore, Plaintiff

satisfies the third element of a prima facie case of malicious

prosecution under § 1983 at this time and Law Enforcement

Defendants’ motion to dismiss Count Four will be denied.

3. Count Five: Common Law Malicious Prosecution

Next, Law Enforcement Defendants challenge Plaintiff’s

common law malicious prosecution claim. Again, they claim this

count is defective because “Plaintiff cannot show a favorable

termination. . . .” (Br. in Supp. of Partial Mot. to Dismiss

(Doc. 9) at 15.) Thus, this court must determine whether the

terminations of the two misdemeanor charges against Plaintiff

qualify as favorable terminations under North Carolina law.

A federal court exercising diversity jurisdiction must

apply the substantive law of the state in which it sits. See

Erie R.R. Co. v. Tompkins, 304 U.S. 64, 79 (1938); Klaxon Co. v.

Stentor Elec. Mfg. Co., Inc., 313 U.S. 487, 496 (1941). “In

order to state a common law claim for malicious prosecution

under North Carolina law, ‘the plaintiff must demonstrate that

the defendant (1) instituted, procured or participated in the

criminal proceeding against the plaintiff; (2) without probable

cause; (3) with malice; and (4) the prior proceeding terminated

in favor of the plaintiff.’” Braswell v. Medina, 255 N.C. App.

217, 228, 805 S.E.2d 498, 506 (2017) (citing Moore v. Evans, 124

N.C. App. 35, 42, 476 S.E.2d 415, 421 (1996) (cleaned up)).

Under North Carolina law, the dismissal of an action is

ordinarily sufficient to show the “proceeding terminated in

favor of the plaintiff.” See Chidnese v. Chidnese, 210 N.C. App.

299, 302, 305, 708 S.E.2d 725, 730–31 (2011) (noting that

termination in favor of the plaintiff was not an element at

issue when “the criminal proceeding was dismissed” by the

district attorney); see also Moore v. Evans, 124 N.C. App. 35,

42, 476 S.E.2d 415, 421 (1996). However, in Alexander v.

Lindsey, the North Carolina Supreme Court added that “where the

criminal action is withdrawn or terminated by compromise brought

about by the defendant, an action for malicious prosecution

based thereon will not lie.” 230 N.C. 663, 671, 55 S.E.2d 470,

476 (1949). This court is aware of no precedent overturning or

seriously questioning this holding of Alexander.

Here, Plaintiff’s disorderly conduct charge was dismissed

because the warrant was defective. (Pl.’s Criminal File (Doc. 9–

2) at 6.) Therefore, this charge may support a malicious

prosecution claim. However, Plaintiff’s resisting a public

officer charge appears to have been dismissed pursuant to a

“compromise” requiring her to perform community service. (See

id. at 2–4.) If this is true, this charge may not support

Plaintiff’s claim of common law malicious prosecution. However,

this court need not determine whether the resisting a public

officer charge was dismissed due to a compromise at this time

because the disorderly conduct charge may support Plaintiff’s

malicious prosecution claim.

A common law malicious prosecution claim may lie even when

the plaintiff was arrested for multiple charges and only one of

those charges supports her claim. See North Carolina ex rel.

Hailey v. Westmoreland, 267 F. Supp. 2d 497, 503 (M.D.N.C. 2003)

(finding that where the plaintiff was prosecuted for assaulting

an officer and for cocaine possession, he could make out a claim

for malicious prosecution as to the assault charge even though

he did not challenge the possession charge). Therefore,

Plaintiff will be permitted to proceed on her common law

malicious prosecution claim. Accordingly, Defendants’ motion to

dismiss will be denied as to Count Five.

4. Count Seven: Deliberate Indifference

Law Enforcement Defendants claim that Count Seven,

Plaintiff’s deliberate indifference claim, must fail because she

asserts a separate “Fourth Amendment claim based on the same

conduct.” (Br. in Supp. of Partial Mot. to Dismiss (Doc. 9) at

16.) Plaintiff does not respond to this argument. (See Pl.’s

Resp. to Partial Mot. to Dismiss (Doc. 13).) The court will

grant Law Enforcement Defendants’ motion to dismiss this claim.

When confronted with an excessive force claim under § 1983,

courts must:

[I]dentify[] the specific constitutional right

allegedly infringed by the challenged application of

force. In most instances, that will be either the

Fourth Amendment’s prohibition against unreasonable

seizures of the person, or the Eighth Amendment’s ban

on cruel and unusual punishments . . . . The validity

of the claim must then be judged by reference to the

specific constitutional standard which governs that

right, rather than to some generalized ‘excessive

force’ standard.

Graham v. Connor, 490 U.S. 386, 394 (1989) (citations omitted).

“All claims that law enforcement officers have used

excessive force—deadly or not—in the course of an arrest,

investigatory stop, or other seizure of a free citizen should be

analyzed under the Fourth Amendment and its reasonableness

standard.” Vathekan v. Prince George’s Cnty., 154 F.3d 173, 178

(4th Cir. 1998) (cleaned up) (citing Graham, 490 U.S. at 395

(1989)). A court is not permitted to “entertain a due process

claim where [the p]laintiffs allege a Fourth Amendment claim

arising from the same abusive government conduct.” Spry v. West

Virginia, No. 2:16-CV-01785, 2017 WL 440733, at *6 (S.D.W. Va.

Feb. 1, 2017). Likewise, where a plaintiff’s “claim is based on

the Eighth Amendment, no separate discussion of [her]

substantive due process claim . . . is necessary.” Love v.

Salinas, No. 2:11-CV-00361-MCE, 2013 WL 4012748, at *7 n.5 (E.D.

Cal. Aug. 6, 2013).

Count Seven of Plaintiff’s complaint begins with a series

of statements about her arrest. (See Compl. (Doc. 2) ¶ 239–44.)

These allegations echo the facts Plaintiff set out in Count One,

her excessive force claim. (Compare id. at 239–44 (describing

plaintiff being handcuffed, sexually assaulted, and struck in

her face and torso), with id. ¶¶ 160–73 (same).) In the absence

of a contrary argument from Plaintiff, this court finds that

this portion of Count Seven alleges a deliberate indifference

substantive due process claim arising from the same conduct as

Plaintiff’s Fourth Amendment excessive force claim.

The latter half of Count Seven is different as it deals not

with Plaintiff’s arrest, but her time in Richmond County Jail.

(See Compl. (Doc. 2) ¶¶ 245–52.) Plaintiff alleges that despite

presenting at the jail with a black eye and complaints of

vaginal soreness, she was not examined by medical staff in the

almost twenty-four hours she spent in custody. (See id.) Though

Plaintiff labels her arguments as a Fourteenth Amendment Claim,

the Eighth Amendment provides the proper standard to consider

her treatment while in jail. See Graham, 490 U.S. at 394.

However, it is unclear to this court who exactly Plaintiff

is bringing her Eighth Amendment claim against. As Deputy

Defendants are not alleged to have denied Plaintiff medical care

in the jail, (see Compl. (Doc. 2) ¶¶ 245–52), this claim cannot

be maintained as to them. Plaintiff mentions a “Defendant Doe”

in Count Seven who ignored her request for medical assistance

but does not otherwise reference that individual in the

complaint, (see id. ¶ 249), nor does she say Count Seven is

being brought against “Defendant Doe,” (see id. at 28). Given

these deficiencies, this court will grant Defendant’s Motion to

Dismiss Count Seven and dismiss this claim without prejudice.

5. Count Eight: Injury to Prisoner by Jailer

Defendants next seek dismissal of Count Eight, a claim

under North Carolina’s injury to prisoner by jailer statute. The

North Carolina statute provides: “[i]f the keeper of a jail . .

. cause[s] . . . any wrong or injury to the prisoners committed

to his custody, contrary to law,” the prisoner may recover

treble damages and the keeper of the jail will be guilty of a

Class 1 misdemeanor. N.C. Gen. Stat. § 162–55. Defendants argue

this claim must fail because they were not keepers of the jail

and because Plaintiff was not a prisoner while in their custody.

(Br. in Supp. of Partial Mot. to Dismiss (Doc. 9) at 18–19.)

The statute at issue, N.C. Gen. Stat. § 162–55, is over two

hundred years old, but has only been interpreted by the courts —

both state and federal — a handful of times. See Letchworth v.

Gay, 874 F. Supp. 107, 108 (E.D.N.C. 1995) (noting the statute

had only been cited three times prior to the court’s

consideration in 1995). It “provides damages to prison detainees

and inmates . . . for conduct by prison officials ‘intended by

the jailers’ to cause harm to them or where the jailor was

criminally negligent.” Layman v. Alexander, 343 F. Supp. 2d 483,

494 (W.D.N.C. 2004). Neither the parties nor this court located

a case factually akin the one at bar — where an individual

attempts to sue under the statute for injuries inflicted during

and immediately following an arrest, but prior to incarceration.

The parties make several arguments why Plaintiff is or is

not a “prisoner” and why Deputy Defendants are or are not

“keepers of the jail.” (See Br. in Supp. of Partial Mot. to

Dismiss (Doc. 9) at 18–19; Pl.’s Resp. to Partial Mot. to

Dismiss (Doc. 13) at 9–14; Reply to Partial Mot. to Dismiss

(Doc. 18) at 7–9.) Neither term is defined by the statute. See

N.C.G.S. § 162. However, this court is mindful of the need to

consider the whole text “in view of its structure and [the]

logical relation of its many parts.” Mont v. United States, 587

U.S. __, 139 S. Ct. 1826, 1833 (2019) (citing A. Scalia & B.

Garner, Reading Law 167 (2012)). As a result, the meaning of

“prisoner” and “keeper of the jail” in § 162–55 should be

informed by surrounding terms.

Black’s Law Dictionary provides three definitions of the

term prisoner:

1. Someone who is being confined in prison. 2. Someone

who has been apprehended by a law-enforcement officer

and is in custody, regardless of whether the person

has yet been put in prison; specif., a person who is

kept in prison as legal punishment or who is kept

there while awaiting trial as a criminal defendant.

3. Someone who is taken by force and kept somewhere.

Prisoner, Black’s Law Dictionary (11th ed. 2019). Though the

first definition explicitly requires an individual to be placed

in a prison to be a prisoner, the second definition encompasses

individuals who have been seized by police, prior to their

detention. See id. Notwithstanding the fact that the second

definition goes on to define prisoner as specifically “a person

who is kept in prison,” the second definition suggests potential

ambiguity in whether the General Assembly sought to include

arrested persons not yet incarcerated within its definition of

prisoner. See id. To resolve the ambiguity this court looks to

determine the meaning of “keeper of the jail.” This person has

duties to “prisoner[s]” under the statute, see N.C. Gen. Stat.

§ 162–55, so understanding who qualifies as a keeper of the jail

may inform who their prisoners are.

Plaintiff has not plead sufficient facts to show that the

Deputy Defendants who arrested Plaintiff were “keepers of the

jail.” Sheriffs have a common law right to appoint deputies to

assist them in the execution of their duties. See State v.

Jones, 41 N.C. App. 189, 190, 254 S.E.2d 234, 235 (1979). A

Sheriff in North Carolina is also responsible for “the care and

custody of the jail in his county; and shall be, or appoint, the

keeper thereof.” N.C. Gen. Stat. § 162-22. However, Sheriffs in

North Carolina have duties that extend well beyond maintaining

jails. See generally, N.C. Gen. Stat. Chapter 162 (describing

duties of the Office of the Sheriff). Courts have recognized a

distinction between law enforcement officers, with law

enforcement duties, and detention officers, with duties in the

jail. See McLaughlin v. Bailey, 240 N.C. App. 159, 175, 771

S.E.2d 570, 581 (2015), aff’d, 368 N.C. 618, 781 S.E.2d 23

(2016).

One duty specific to law enforcement officers and not held

by jailers is “the general power of arrest, a power that may be

exercised in North Carolina only by an officer who receives

extensive training in the enforcement of criminal law.” Knight

v. Vernon, 214 F.3d 544, 550 (4th Cir. 2000). “The authority of

a jailer, on the other hand, is much more circumscribed. . . .

Her duties are simply to supervise and care for inmates in the

county jail. Her training, which is much more limited than that

of a deputy, is concentrated on matters of custodial care and

supervision.” Id. (citations omitted).

Here, Plaintiff has plead that the Law Enforcement

Defendants arrested her — a power that only law enforcement

officers may exercise, see id. She pleads no facts indicating

they had any responsibilities for the keeping of jails. (See

Compl. (Doc. 2).) Thus, this court finds the Law Enforcement

Defendants are not keepers of the jail for purposes of N.C. Gen.

Stat. § 162-55.

Plaintiff reaches the opposite conclusion. She argues the

term “keeper of the jail” has been extended to similar

individuals and “the term prisoner has been [and now is]

synonymous with arrestee.” (Pl.’s Resp. to Partial Mot. to

Dismiss (Doc. 13) at 12.) This court finds both arguments

unpersuasive.

First, Plaintiff argues that a person can be a “keeper of

the jail” when they are “charged with the care custody, and

maintenance of prisoners,” regardless of their job title. (Id.

at 10 (citing State v. Shepherd, 156 N.C. App. 603, 605, 577

S.E.2d 341, 343 (2003))). However, Plaintiff cites no cases

extending that moniker to employees responsible for the care and

custody of arrested individuals before their incarceration. See

Letchworth, 874 F. Supp. at 108 (the plaintiff alleged the

defendant failed to protect against an assault by other

prisoners, implying the deputy had some control over

incarcerated individuals in the prison); Ramsey v. Schauble, 141

F. Supp. 2d 584, 586 (W.D.N.C. 2001) (the defendant, a Sheriff’s

deputy, closed a jail cell door on the plaintiff’s hand); White

v. Van Duncan, No. 1:10-CV-014, 2010 WL 2813492, at *1 (W.D.N.C.

July 15, 2010) (defendants were several “guards” in a county

detention center who tased and beat plaintiff in his cell);

Shepherd, 156 N.C. App. at 605, 577 S.E.2d at 343 (defendant was

a bailiff who was required to “go to the jail to pick up inmates

for transport to court” and who told one inmate to assault

another inmate in the jail).

Next, Plaintiff purports to present historical and modern

evidence to support her position. (See Pl.’s Resp. to Partial

Mot. to Dismiss (Doc. 13) at 12.) The historical cases Plaintiff

cites fail to support the argument that “prisoner” has been

understood to refer to individuals prior to their incarceration.8

Plaintiff also directs this court’s attention to two more

recent decisions by the North Carolina Court of Appeals, State

v. Ellis, 168 N.C. App. 651, 658, 608 S.E.2d 803, 807 (2005),

8 Plaintiff argues Degrand v. Hunnewell, 11 Mass. 160,

161–62 (1814), observed “that an individual’s status as a

prisoner depends on whether there was ‘a seizure or touching of

the person.’” (Pl.’s Resp. to Partial Mot. to Dismiss (Doc. 13)

at 12.) Degrand does not make this connection. Instead, the

court merely notes, “to constitute an arrest, there should be a

seizure or touching of the person.” Degrand, 11 Mass. at 161.

This statement of Fourth Amendment jurisprudence does not

support Plaintiff’s claim that an individual becomes a prisoner

upon arrest.

Plaintiff also argues that Whithead v. Keyes, 85 Mass. 495

(1862), supports her position. (See Pl.’s Resp. to Partial Mot.

to Dismiss (Doc. 13) at 12.) However, the word “prisoner” does

not even appear in the case. See Whithead, 85 Mass. 495.

Plaintiff’s citation to State v. Ritchie, 107 N.C. 857, 12

S.E. 251 (1890), is similarly unhelpful. No facts are provided

such that this court can determine whether the prisoner at issue

was incarcerated or whether he escaped custody prior to

incarceration. See id. In the absence of more information, this

case does not show that an individual becomes a prisoner upon

their arrest.

Most helpful to Plaintiff is Brady v. Hughes, 181 N.C. 234,

106 S.E. 829 (1921). However, this court is not confident that

the North Carolina Supreme Court was referring to the individual

in the Sheriff’s deputy’s custody as a “prisoner” because it

considered him to be a prisoner upon his arrest, or because he

was later incarcerated and it chose to refer to him based on

this ultimate status throughout the opinion. See id. Assuming

the North Carolina Supreme Court did consider the individual to

be a prisoner upon arrest, this is the only case Plaintiff

identified where an individual was considered a prisoner prior

to his arrival at the jail. Thus, Plaintiff’s historical

arguments do not provide persuasive evidence that “prisoner” in

N.C. Gen. Stat. § 162-55 included Plaintiff.

and State v. Noel, 202 N.C. App. 715, 719, 690 S.E.2d 10, 14

(2010). Neither support her argument. Both cases interpret N.C.

Gen. Stat. § 14-258.4, which criminalizes prisoners using bodily

fluids as projectiles directed at government employees. In Noel,

the statute was applied to an individual who spat on a police

officer while he was handcuffed and sitting on a curb. Noel, 202

N.C. App. at 719, 690 S.E.2d at 14. However, Noel does not

support Plaintiff’s argument because the statute stated it

applied to “[a]ny person in the custody of the Division of Adult

Correction of the Department of Public Safety, the Division of

Juvenile Justice of the Department of Public Safety, any law

enforcement officer, or any local confinement facility.” N.C.

Gen. Stat. § 14-258.4 (2012) (amended 2018) (emphasis added).9

The instant issue is not whether the term prisoner can be

defined to include individuals in the custody of law

enforcement, but whether “prisoner” as used in N.C. Gen. Stat.

§ 162-55 is so defined.

9 The statute was amended in 2018 and now reads “[a]ny

prisoner who knowingly and willfully throws, emits, or causes to

be used as a projectile, any bodily fluids, excrement, or

unknown substance at an employee, while the employee is in the

performance of the employee’s duties, is guilty of a Class F

felony.” N.C. Gen. Stat. § 14-258.4 (2018). However, “prisoner”

is defined elsewhere in the Article as “[a]ny person in the

custody of (i) the Division of Prisons of the Department of

Adult Correction, (ii) any law enforcement officer, or (iii) any

local confinement facility.” N.C. Gen. Stat. § 14-254.5. (2018).

Ultimately, this court finds that the injury to prisoner by

jailer statute does not apply to Plaintiff’s claims of

mistreatment by officers during and immediately after her arrest

because Plaintiff was not a prisoner and Deputy Defendants were

not keepers of the jail as those terms are used in the statute.10

As a result, this court will dismiss Count Eight of Plaintiff’s

complaint.

6. Count Eleven: Civil Conspiracy Under § 1983

Law Enforcement Defendants also move to dismiss the civil

conspiracy claim against J.R. Smith brought under § 1983. (Br.

in Supp. of Partial Mot. to Dismiss (Doc. 9) at 19–22.)

Plaintiff disagrees; she contends that “Holly Smith and J.R.

Smith acted in concert to cement [Plaintiff’s] arrest by

manufacturing probable cause afterward.” (Pl.’s Resp. to Partial

Mot. to Dismiss (Doc. 13) at 15.)

Evaluating this claim calls for a brief review of the

relevant facts as alleged by Plaintiff. After William was led

away in handcuffs, deputies asked Plaintiff and her sisters to

leave. (Compl. (Doc. 2) ¶¶ 76–77.) Deputies watched Plaintiff

10 Plaintiff’s complaint says she brings this claim against

“Richmond County” which is not otherwise named as a Defendant.

(See Compl. (Doc. 2) at 30.) It is not clear to this court

whether Plaintiff intended to name Richmond County as a

Defendant. Regardless, this court is unwilling to construe

Richmond County as a “keeper of the jail” against whom an action

under § 162-55 may be maintained.

and her family walk towards their car for about a minute and

then suddenly moved to arrest them. (Id. ¶¶ 79–87.) Plaintiff

does not allege that Holly Smith ordered Plaintiff’s arrest,

that she observed it, or that she was otherwise aware it was

happening. (See Id. ¶¶ 77–127, 278–82.) After Plaintiff’s arrest

“Smith and several Sheriff’s deputies conferred about the

appropriate charges to bring against” Plaintiff. (Id. ¶ 112.)

Plaintiff was held for two hours before she was informed of the

charges against her. (Id. ¶ 115.) Plaintiff also alleges “Smith

found [Plaintiff] in contempt of court not because [Plaintiff]

impaired the court proceedings or because [Plaintiff]

demonstrated disobedience to the court’s lawful directive but

because she desired to punish [Plaintiff] for exercising her

First Amendment right to record law enforcement officials.” (Id.

¶ 124.)

“To establish a civil conspiracy under § 1983, [a

plaintiff] must present evidence that the [defendants] acted

jointly in concert and that some overt act was done in

furtherance of the conspiracy which resulted in [the]

deprivation of a constitutional right . . . .” Hinkle v. City of

Clarksburg, 81 F.3d 416, 421 (4th Cir. 1996) (citing Hafner v.

Brown, 983 F.2d 570, 577 (4th Cir. 1992)). “[W]here direct

evidence of a meeting of the minds is lacking, the plaintiff

‘must come forward with specific circumstantial evidence that

each member . . . shared the same conspiratorial objective.’”

Willis v. Blevins, 966 F. Supp. 2d 646, 660 (E.D. Va. 2013)

(citing Hinkle, 81 F.3d at 421). When alleging a conspiracy has

occurred, “the plaintiff must plead facts amounting to more than

parallel conduct and a bare assertion of conspiracy.” Barrett v.

Pae Gov’t Servs., Inc., 975 F.3d 416, 434 (4th Cir. 2020)

(internal quotations omitted). Standing alone, “parallel conduct

does not suggest conspiracy, and a conclusory allegation of

agreement at some unidentified point does not supply facts

adequate to show illegality.” Id. Plaintiff’s “factual

allegations must plausibly suggest agreement, rather than being

merely consistent with agreement.” Id.

Plaintiff alleges that her arrest and subsequent

prosecution constituted deprivations of her constitutional

rights. (See Compl. (Doc. 2) ¶¶ 280.) First, considering

Plaintiff’s arrest, she has not alleged that “a meeting of the

minds” or a “shared . . . conspiratorial objective” existed

between Holly Smith and J.R. Smith before she was arrested. See

Hinkle, 81 F.3d at 421. She fails to allege that any

conversation occurred between Holly Smith and J.R. Smith prior

to Plaintiff’s arrest. Nor has she alleged they shared animus

towards Plaintiff that motivated them to manufacture charges

against her. See Barrett, 975 F.3d 416, 435 (4th Cir. 2020)

(“Even if an allegation of a specific motive might not be

required to state a claim for conspiracy, the Plaintiff was

still required to allege some facts that would plausibly suggest

that the police officers entered into an agreement with [other]

defendants to accomplish the same conspiratorial objective.”).

Though Plaintiff claims that “Defendants conspired to cause

Plaintiff to be arrested,” (id. ¶ 280), this is a legal

conclusion that the court is not bound to accept. See Iqbal, 556

U.S. at 678.11

Moreover, Plaintiff does not plead facts that suggest J.R.

Smith conspired to bring false charges against her. Plaintiff

claims “Defendants” participated in the conspiracy because they:

(1) “arrest[ed] Plaintiff without notifying her of the charges”;

(2) met with Magistrate Judges Baxley and Prelipp after

Plaintiff’s arrest; and (3) J.R. Smith assisted Holly Smith with

11 This court’s conclusion is further supported by

Plaintiff’s Response to Defendants’ Motion to Dismiss, which

focuses on post-arrest conduct to support her conspiracy claim,

(see Pl.’s Resp. to Partial Mot. to Dismiss (Doc. 13) at 15–16),

suggesting she is abandoning her argument that J.R. Smith and

Holly Smith conspired to arrest her.

charging and prosecuting Plaintiff with fabricated charges.12

(See Compl. (Doc. 2) ¶ 281.)

Unlike Plaintiff, this court does not find anything

suspicious about the first two facts Plaintiff alleges.

Plaintiff was arrested without a warrant, (id. ¶ 89), so the

arresting officers had to consult with magistrate judges who

would make a probable cause determination and issue a warrant,

as occurred here, (id. ¶ 116; see also Pl.’s Criminal File (Doc.

9–2) at 14). This court does not find that two hours is an

unreasonable amount of time for this process such that it

implies something nefarious occurred at that meeting. Moreover,

the complaint is devoid of allegations that the magistrate

judges who met with officers after Plaintiff’s arrest were

involved in the conspiracy. She alleges that Magistrate Judge

Prelipp “was a longtime colleague of Holly Smith,” (id. ¶¶ 113–

14), but that claim is insufficient to show that Magistrate

Judge Prelipp engaged in a conspiracy with Holly Smith or J.R.

Smith. See Penley v. McDowell Cnty. Bd. of Educ., 876 F.3d 646,

12 The complaint is confusing on this point, it states:

“Defendants . . . assist[ed] Holly Smith and J.R. Smith in

charging and prosecuting Plaintiffs with fabricated charges.”

(Compl. (Doc. 2) ¶ 281.) The only Defendants named in Count

Eleven are Holly Smith and J.R. Smith, (id. at 32), and there is

only one Plaintiff in this action, (id. ¶ 3). This court has

construed Plaintiff’s statement to allege that Holly Smith and

J.R. Smith assisted each other in prosecuting Plaintiff with

fabricated charges.

659 (4th Cir. 2017) (“Friendship or acquaintanceship, standing

alone, is insufficient to ‘reasonably lead to the inference that

[defendants] positively or tacitly came to a mutual

understanding to try to accomplish a common and unlawful

plan.’”) (citing Hinkle, 81 F.3d at 421).

This court also does not credit Plaintiff’s third

allegation that J.R. Smith assisted Holly Smith with charging

and prosecuting Plaintiff with fabricated charges. (Compl.

(Doc. 2) ¶ 281.) This statement is “a legal conclusion couched

as a factual allegation” that the court is “not bound to accept

as true.” See Iqbal, 556 U.S. at 678.

For these reasons, this court will grant Defendants’ motion

to dismiss Count Eleven alleging civil conspiracy under § 1983

against J.R. Smith.

7. Count Thirteen: Action on Surety Bond

Finally, Defendants ask this court to dismiss Count

Thirteen which alleges an action on surety bond pursuant to N.C.

Gen. Stat. § 58–76–5 against Sheriff Gulledge and Ohio Casualty.

(Compl. (Doc. 2) at 34.) Defendants claim Sheriff Gulledge’s

bond is with Western Surety, not Ohio Casualty, and Plaintiff

cannot maintain an action against Sheriff Gulledge or Ohio

Casualty. (Br. in Supp. of Partial Mot. to Dismiss (Doc. 9) at

22–23.)

The statute at issue states:

Every person injured by the neglect, misconduct, or

misbehavior in office of any . . . sheriff . . . or

other officer, may institute a suit or suits against

said officer or any of them and their sureties upon

their respective bonds for the due performance of

their duties in office in the name of the State,

without any assignment thereof; . . . and every such

officer and the sureties on the officer’s official

bond shall be liable to the person injured for all

acts done by said officer by virtue or under color of

that officer’s office.

N.C. Gen. Stat. § 58-76-5 (emphasis added). The arrest described

in Plaintiff’s complaint occurred on December 2, 2018 (Compl.

(Doc. 2) ¶ 43.) At the time, James Clemmons was the Richmond

County Sheriff. (Pl.’s Resp. to Partial Mot. to Dismiss (Doc.

13) at 16–17.) Sheriff Clemmons served in that role until his

death on August 5, 2021, at which time Chief Deputy Gulledge

succeeded him. (Id. at 17.) While Sheriff Clemmons was in

office, his surety company was Ohio Casualty. (Id.) When Sheriff

Gulledge took office, he contracted with a different surety

company. (Id.)

The parties agree that the statute allows an individual to

sue a Sheriff and his surety. (Compare Pl.’s Resp. to Partial

Mot. to Dismiss (Doc. 13) at 21 (“Plaintiff concedes that

Defendant Gulledge, as the current Sheriff, may not be the

proper defendant in conjunction with the former Sheriff’s surety

company.”), with Reply to Partial Mot. to Dismiss (Doc. 18) at

12 (noting that the statute requires Plaintiff “to name former

Sheriff Clemmons, not Sheriff Gulledge”).) This court concurs.

The statute contemplates that an individual injured by the

Sheriff “may institute a suit or suits against said officer or

any of them and their sureties.” N.C. Gen. Stat. § 58-76-5.

Thus, the officer and the surety must align. See Myers v.

Bryant, 188 N.C. App. 585, 588, 655 S.E.2d 882, 885 (2008)

(“[U]nder section 58–76–5, a plaintiff may sue a sheriff and the

surety on his official bond for acts of negligence in the

performance of official duties.”). Therefore, this court will

dismiss Count Thirteen of Plaintiff’s complaint against Sheriff

Gulledge and Ohio Casualty.

In her Reply, Plaintiff appears to request leave to amend

her complaint to substitute Sheriff Clemmons for Sheriff

Gulledge. (See Pl.’s Resp. to Partial Mot. to Dismiss (Doc. 13)

at 22.) However, Plaintiff fails to comply with the provisions

of Local Rule 7.3, which governs motions practice. See L.R.

7.3(a) (“Each motion shall be set out in a separate pleading.”);

L.R. 7.3(j) (“[A] motion . . . to amend the pleadings . . . must

state good cause therefor and cite any applicable rule, statute,

or other authority justifying the relief sought. These motions

must be accompanied by a proposed order.”). Considering this

failure, the court will deny Plaintiff’s motion to amend without

prejudice. Therefore, this court will grant Defendants’ motion

to dismiss Count Thirteen of Plaintiff’s complaint.

B. Holly Smith’s Motion to Dismiss

Holly Smith has filed a motion to dismiss Plaintiff’s

claims against her pursuant to Rules 12(b)(1), (b)(2), and

(b)(6) of the Federal Rules of Civil Procedure. (Doc. 17 at 2.)

Smith argues that Plaintiff’s federal claims against her are

barred by judicial immunity, the state claims are barred by

sovereign immunity and judicial immunity, and Plaintiff fails to

state a single claim upon which relief may be granted. (Id. at

6.) Due to a forthcoming opinion from the North Carolina Supreme

Court addressing the status of sovereign immunity for magistrate

judges, this court will stay the action as to Holly Smith.

Ordinarily, federal district courts sitting in diversity

apply the law as stated by intermediate state courts when the

highest state court has not ruled on the issue “absent

‘persuasive data’ that the highest court would rule

differently.” Hickerson v. Yamaha Motor Corp., 882 F.3d 476, 484

(4th Cir. 2018) (citing United States v. Little, 52 F.3d 495,

498 (4th Cir. 1995)). This sometimes requires courts “to

construe and apply various [state] statutes as to which there

[is] no definitive interpretation by the [state] [s]upreme

[c]ourt. . . .” Nature Conservancy v. Machipongo Club, Inc., 579

F.2d 873, 875 (4th Cir. 1978). Federal courts’ construction of

“such statutes is not definitive” and is, at most, persuasive.

Id. While federal courts normally do not abstain in diversity

cases, they may do so “where (1) state law is unsettled, and

(2) an incorrect federal decision might embarrass or disrupt

significant state policies.” Id.

Here, North Carolina law on sovereign immunity and judicial

immunity for magistrate judges is currently unsettled. In Wynn,

278 N.C. App. 596, 863 S.E.2d 790, the North Carolina Court of

Appeals held that N.C. Gen. Stat. § 58-76-5 waives sovereign

immunity as to magistrates and that judicial immunity is only

available as a defense “for judicial officers sued as

individuals,” not for suits against judicial officers in their

official capacity. The North Carolina Supreme Court has agreed

to hear an appeal on the sovereign immunity issue. See Wynn, 278

N.C. App. at 596, 863 S.E.2d at 795–96, review allowed in part,

denied in part, 876 S.E.2d 273 (N.C. 2022). The North Carolina

Supreme Court’s decision will likely clarify whether N.C. Gen.

Stat. § 58-76-5 abrogates sovereign immunity for magistrate

judges.

Additionally, a state’s waiver of its sovereign immunity

“raises fundamental questions of public policy that should be

resolved in the first instance by the state courts.” Nature

Conservancy, 579 F.2d at 876. Sovereign immunity prevents

“private parties [from] seeking to impose a liability which must

be paid from public funds in the state treasury.” Edelman v.

Jordan, 415 U.S. 651, 663 (1974). “[A] State’s sovereign

immunity is ‘a personal privilege which it may waive at

pleasure.’” Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ.

Expense Bd., 527 U.S. 666, 675 (1999) (internal citations

omitted). Waiving sovereign immunity subjects a state to a

judgment drawn from its coffers and the inconveniences of

litigation. Whether a state chooses to waive its sovereign

immunity depends how it balances competing priorities of

maintaining its state treasury while ensuring taxpayers may seek

redress for harms from the state. How the General Assembly of

North Carolina has balanced those priorities in general, and

specifically in § 58-76-5, is best decided by the Supreme Court

of North Carolina.

Since a definitive decision is forthcoming on whether

§ 58-76-5 waives sovereign immunity as to magistrate judges,

this court shall defer its ruling on Smith’s motion to dismiss.

Thus, this court shall stay this matter as to Smith until the

North Carolina Supreme Court issues its decision in Wynn. See

278 N.C. App. 596, 863 S.E.2d 790, review allowed in part,

denied in part, 876 S.E.2d 273 (N.C. 2022).

C. Great American’s Motion to Dismiss

Great American has also filed a motion to dismiss Count

Twelve, Plaintiff’s sole claim against it pursuant to Rule

12(b)(6). Plaintiff has sued Great American under N.C. Gen.

Stat. § 58-76-5 as the surety for Smith during the time she

served as a Magistrate Judge. (See Compl. (Doc. 2) at 33–34.) As

this court has explained, (see supra Section IV.B), the North

Carolina Supreme Court is set to determine whether § 58-76-5

abrogates sovereign immunity for magistrate judges in North

Carolina. This court finds, for the reasons outlined above, that

it would be prudent to wait until the North Carolina Supreme

Court has spoken on how § 58-76-5 impacts magistrate judges’

sovereign immunity in North Carolina before issuing an opinion

on Great American’s motion to dismiss. Therefore, the court will

stay this action as to Great American until the North Carolina

Supreme Court issues its opinion in Wynn. 278 N.C. App. 596, 863

S.E.2d 790, review allowed in part, denied in part, 876 S.E.2d

273 (N.C. 2022).

V. CONCLUSION

Law Enforcement Defendants’ motion to dismiss, (Doc. 8),

will be granted in part and denied in part. Specifically,

Defendants’ motion to dismiss Counts One, Four, and Five will be

denied. The motion is denied as to Count One because Plaintiff

does not sue any Defendants in their official capacities in her

42 U.S.C. § 1983 claims. The motion will be denied as to Count

Four because the prosecutions against Plaintiff terminated

without a conviction. The motion will be denied as to Count Five

because at least one of the charges against Plaintiff terminated

in her favor. Law Enforcement Defendants’ motion to dismiss will

be granted as to Counts Seven, Eight, Eleven, and Thirteen

because Plaintiff has failed to state a claim upon which relief

may be granted for these counts. Counts Seven, Eight, and

Thirteen will be dismissed as to all Defendants named in those

counts. Count Eleven will be dismissed as to J.R. Smith.

The case will be stayed as to Defendants Holly Smith and

Great American Insurance Company pending the North Carolina

Supreme Court’s decision in Wynn. 278 N.C. App. 596, 863 S.E.2d

790, review allowed in part, denied in part, 876 S.E.2d 273

(N.C. 2022).

For the foregoing reasons,

IT IS THEREFORE ORDERED that Defendants’ Motion to Dismiss,

(Doc. 8), is GRANTED IN PART AND DENIED IN PART. It is DENIED as

to Counts One, Four, and Five; it is GRANTED as to Counts Seven,

Eight, Eleven, and Thirteen.

IT IS FURTHER ORDERED that Counts Seven, Eight, and Thirteen

are DISMISSED WITHOUT PREJUDICE as to all parties. Count Eleven

is DISMISSED WITHOUT PREJUDICE as to J.R. Smith.

IT IS FURTHER ORDERED that this action is STAYED as to

Defendants Holly Smith and Great American Insurance Company until

the North Carolina Supreme Court issues its opinion in Wynn. The

parties shall notify this court every three months of the status

in Wynn. Further, the parties shall notify this court when the

North Carolina Supreme Court issues its ruling in Wynn.

This the 16th day of February, 2023.

Win 1. Galan Ve

United States District J e

=- 43 =-