HUMPHREYS v. ROWAN-SALISBURY BOARD OF EDUCATION

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

SUWANDA EVETTE HUMPHREYS, )

)

Plaintiff, )

)

v. ) 1:21-cv-432

)

ROWAN-SALISBURY BOARD OF )

EDUCATION and DEPUTY TOMMY )

CATO, )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

OSTEEN, JR., District Judge

Before this court are three cross-motions for summary

judgment filed by the three parties to this case. Defendants

Deputy Tommie Cato and Rowan-Salisbury Board of Education

(“RSBE”) each seek summary judgment in their favor on all counts

against them. (Docs. 28, 34.) Plaintiff, Suwanda Evette

Humphreys, seeks partial summary judgment. (See Doc. 30

This court will grant Defendant Tommie Cato’s Motion for

Summary Judgment, (Doc. 28), and Defendant Rowan-Salisbury Board

of Education’s Motion for Summary Judgment, (Doc. 34), thereby

dismissing these Defendants from this action. This court will

deny Plaintiff’s Motion for Partial Summary Judgment. (Doc. 30.)

I. FACTUAL BACKGROUND

The majority of the facts in this case are uncontested.

Because this court will address Defendants’ motions for summary

judgment first, the evidence is presented here in the light most

favorable to Plaintiff, the non-moving party.

Plaintiff’s claims arise out of an incident at East Rowan

High School on March 28, 2018. (See Pl.’s First Am. Compl.

(“FAC”) (Doc. 11) ¶ 5.)1 Sometime prior to the incident, Cato —

East Rowan’s School Resource Officer (SRO) — school

administrators, and the Rowan County Sheriff’s Office had agreed

to conduct canine sniffs at the school using a drug dog. (Dep.

of Tommie Cato (“Cato Dep.”) (Doc. 29–2) at 54–56.)

Sergeant Wes Smith of the Rowan Sheriff’s Office reported

to the school on the morning of March 28, 2018 with his K-9,

Kilo. (Dep. of Sgt. Wes Smith (“Smith Dep.”) (Doc. 29–3) at 32.)

At the time, Kilo was a thirteen-year-old chocolate labrador who

had been working with Smith since January 2009. (Id. at 8–9.)

Kilo was certified through the International Police Work Dog

Association (IPWDA), underwent yearly recertifications, and

received maintenance training twice a month. (Id. at 12–13, 15.)

1 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.

Kilo was trained to detect the odors of marijuana, cocaine,

methamphetamine, and heroin; he would alert his handler when he

detected these odors. (Id. at 13–14.)

Smith used Kilo to conduct random sniffs of a row of cars

in the East Rowan parking lot. (Id. at 51–52; Cato Dep.

(Doc. 29–2) at 93.) After sniffing eight to ten cars, Kilo

alerted his handler to a vehicle. (Cato Dep. (Doc. 29–2) at 93–

94; Smith Dep. (Doc. 29–3) at 51.) Students at East Rowan have

assigned parking spaces, and Cato has a list identifying the

student assigned to each spot. (Cato Dep. (Doc. 29–2) at 37–39.)

Cato referenced this list and determined that the car Kilo

alerted Smith to was driven by Unique Humphreys, (id. at 93–94),

an eighteen-year-old senior at East Rowan, (Dep. of Pl. Suwanda

Evette Humphreys (“Humphreys Dep.”) (Doc. 29–1) at 13, 91).

Unique was called to the parking lot and Cato informed her

that a dog had alerted on her car. (Cato Dep. (Doc. 29–2)

at 48.) Unique initially refused to allow them to search her car

and called Plaintiff, her mother. (Cato Dep. (Doc. 29–2) at

48–49; Humphreys Dep. (Doc. 29–1) at 17.) Plaintiff subsequently

arrived at the school and met her daughter in the parking lot.

(Humphreys Dep. (Doc. 29–1) at 21.) Plaintiff and Unique refused

to give permission to search the car. (Id. at 22.)

After her arrival at the school, Plaintiff was, according

to her counsel, “loud, impolite and used profanity.” (Pl.’s Mem.

in Opp’n to Def. Cato’s Mot. Summ. J. (“Pl.’s Resp. Cato MSJ”)

(Doc. 40) at 3.) Plaintiff insisted that the officers needed a

warrant to search her daughter’s car. (See Ex. F, Notice of

Lodging Video Evid. with Ct. in Supp. of Pl.’s. Mot. for Partial

Summ. J. (“Video”) (Doc. 31–6).) Officers informed Plaintiff and

Unique that they would tow the car to a secure location until a

warrant could be issued; Plaintiff then consented to the search.

(See FAC (Doc. 11) ¶ 43; Cato Dep. (Doc. 29–2) at 49–50;

Humphreys Dep. (Doc. 29–1) at 23.)2

Neither Unique nor Plaintiff were frisked prior to the

search of the vehicle. (Humphreys Dep. (Doc. 29–1) at 25; Cato

Dep. (Doc. 29–2) at 77–78.) Smith searched the interior of

Unique’s car by hand while Cato looked on. (See Smith Dep.

(Doc. 29–3) at 37–38; Cato Dep. (Doc. 29–2) at 50.) Cato stated

2 Plaintiff’s deposition testimony was that she did not

recall whether she gave consent to search the car. (Humphreys

Dep. (Doc. 29–1) at 23.) This somewhat contradicts the statement

in her amended complaint that “she consented to the search.”

(See FAC (Doc. 11) ¶ 43.) However, “[f]actual assertions in

pleadings and pretrial orders, unless amended, are considered

judicial admissions conclusively binding on the party who made

them.” Amgen Inc. v. Connecticut Ret. Plans & Tr. Funds, 568

U.S. 455, 470 n.6 (2013). Therefore, this court finds that

Plaintiff is bound by the factual allegations in her amended

complaint, even where they are contradicted by her deposition

testimony.

during his deposition that he believed his responsibility was to

ensure Smith’s safety while Smith carried out the search. (Cato

Dep. (Doc. 29–2) at 50.) During the search, Plaintiff

“repeatedly looked over Sergeant Smith’s shoulder while he was

attempting to search the car. Deputy Cato and Sergeant Smith

repeatedly asked Plaintiff to back up or back away from Sergeant

Smith.” (FAC (Doc. 11) ¶ 46.) Plaintiff refused to comply with

these requests. (Id. ¶ 47.) Plaintiff also told a group of

students walking to class through the parking lot that they were

“about to see a black woman — an unarmed black woman get shot.”

(Id.)

Smith moved around the vehicle to continue the search and

Plaintiff moved from the back of the car, where she had been

standing with Unique and Cato, to the front to continue

observing Smith. (See FAC (Doc. 11) ¶¶ 48–49.) Cato asked

Plaintiff “to ‘come on back’ to where he was because ‘he needed

to keep an eye on her.’” (Id. ¶ 49.) Plaintiff walked out of

Cato’s view for approximately three seconds and then returned to

his line of sight. (Id. ¶ 50.) Plaintiff refused to return to

the back of the car and told Cato, “you can keep an eye on me

from right here.” (Id.) Cato again asked Plaintiff to “come on

back over here.” (Id. ¶ 51.) Plaintiff again told Cato that “you

can keep an eye on me from right here.” (Id.) Plaintiff also

directed her daughter to record Cato because he “could see her,

she was not in [Smith’s] way[,] and she was not bothering

nobody[,] and she was not moving.” (Id.) Finally, Cato asked,

“are you refusing to come back here?” (Id. ¶ 52.) Plaintiff

responded that she was “breaking no law,” and Cato replied,

“you’re under arrest.” (Id.)3

Plaintiff was charged with disorderly conduct in violation

of N.C. Gen. Stat. § 14-288.4(a) and resisting a public officer

in violation of N.C. Gen. Stat. § 14-223. (Id.) Cato handcuffed

Plaintiff’s hands in front of her body, and she watched the

remainder of the search of Unique’s vehicle. (Video (Doc. 31–6);

see also Humphreys Dep. (Doc. 29–1) at 40.) Plaintiff does not

allege that force was used in her arrest other than the force

necessary to handcuff her. (See Humphreys Dep. (Doc. 29–1) at

41, 92 (agreeing Plaintiff was not hit or thrown during her

arrest and that she suffered no physical injuries from her

arrest).) Furthermore, in the video Plaintiff has filed, it

appears that the only force used against Plaintiff was the

application of handcuffs. (See Video (Doc. 31–6).)

3 Cato and Plaintiff’s interactions were also captured on a

video filed with this court. (Video (Doc. 31–6).)

No drugs were found in Smith’s search of Unique’s car. (FAC

(Doc. 11) ¶ 57.) However, a knife that belonged to Plaintiff was

discovered. (Humphreys Dep. (Doc. 29–1) at 43.)

Plaintiff was found guilty of disorderly conduct and

resisting a public officer in a bench trial. (FAC (Doc. 11)

¶ 72.) She appealed to the Rowan County Superior Court, and a

jury found her guilty of disorderly conduct and resisting a

public officer. (Id. ¶¶ 73, 75–76.) Plaintiff appealed her

convictions to the North Carolina Court of Appeals. That court

held that “the trial court erred in denying the motion[s] to

dismiss the disorderly conduct charge [and the resisting a

public officer charge] because there was not substantial

evidence to support Defendant’s violation[s]” of those statutes.

State v. Humphreys, 275 N.C. App. 788, 800, 853 S.E.2d 789, 797

(2020). The opinion does not discuss probable cause. See id.

Additional facts will be addressed hereafter as necessary.

II. PROCEDURAL HISTORY

Plaintiff originally filed her complaint in North Carolina

state court on April 19, 2021. (Doc. 1–1.) Defendants timely

removed the case to federal court. (See Doc. 1.) Plaintiff

subsequently filed an amended complaint, (FAC (Doc. 11)), which

Defendants answered, (Docs. 12, 16).

After discovery concluded, Cato filed a Motion for Summary

Judgment, (Doc. 28), and a brief in support, (Br. in Supp. of

Mot. for Summ. J. on Behalf of Def. Deputy Tommie Cato (“Cato

MSJ Br.”) (Doc. 29)). Plaintiff responded, (Pl.’s Resp. Cato MSJ

(Doc. 40)), and Cato replied, (Reply Br. in Supp. of Mot. for

Summ. J. on Behalf of Def. Deputy Tommie Cato (“Cato MSJ Reply”)

(Doc. 43)).

Defendant RSBE also filed a Motion for Summary Judgment,

(Doc. 34), and a brief in support, (Def. RSBE’s Mem. of Law in

Supp. of Mot. for Summ. J (“RSBE MSJ Br.”) (Doc. 35)). Plaintiff

responded, (Pl.’s Mem. in Opp’n to Def. RSBE’s Mot. for Summ. J.

(“Pl.’s Resp. RSBE MSJ”) (Doc. 42)), and RSBE replied, (Def.

RSBE’s Reply to Pl.’s Resp. in Opp’n to Def.’s Mot. for Summ. J.

(“RSBE MSJ Reply”) (Doc. 44)).

Plaintiff also filed a Notice of Motion stating she would

move for summary judgment, (Doc. 30),4 and a brief in support of

partial summary judgment, (Pl.’s Mem. in Supp. of Mot. for Summ.

J. (“Pl.’s MSJ Br.”) (Doc. 31)). Defendants Cato and RSBE

4 This court notes that Plaintiff failed to file a motion

for summary judgment in this case. Her motion states she “will

move . . . for an Order pursuant to Fed. Civ. R. 56 granting

Plaintiff’s motion for partial summary judgment.” (Doc. 30

at 1.) However, she failed to file such a motion with this

court. Plaintiff’s procedural failure has not impacted this

court’s consideration of her request.

responded separately. (Docs. 36, 39.) Plaintiff replied to each

response. (Docs. 37, 45.)

Plaintiff alleges one claim against Cato under 42 U.S.C.

§ 1983 for a violation of her Fourth Amendment rights. (FAC

(Doc. 11) at 16–20.) Plaintiff asserts three claims against

RSBE: (1) a Monell claim under 42 U.S.C. § 1983, (2) a

discrimination claim under Title VI, and (3) a claim for

negligent retention and supervision under North Carolina law.

(Id. at 20–23.)

III. STANDARD OF REVIEW

Summary judgment is appropriate when “there is no genuine

dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a); see Celotex

Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). This court’s

summary judgment inquiry is whether the evidence “is so one-

sided that one party must prevail as a matter of law.” Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). The moving

party bears the initial burden of demonstrating “that there is

an absence of evidence to support the nonmoving party’s case.”

Celotex Corp., 477 U.S. at 325. If the “moving party discharges

its burden . . ., the nonmoving party then must come forward

with specific facts showing that there is a genuine issue for

trial.” McLean v. Patten Cmtys., Inc., 332 F.3d 714, 719 (4th

Cir. 2003) (citing Matsushita Elec. Indus. Co. v. Zenith Radio

Corp., 475 U.S. 574, 586-87 (1986)). Summary judgment should be

granted “unless a reasonable jury could return a verdict for the

nonmoving party on the evidence presented.” McLean, 332 F.3d at

719 (citing Liberty Lobby, 477 U.S. at 247–48).

When facing cross-motions for summary judgment, this court

reviews “each motion separately on its own merits to determine

whether either of the parties deserves judgment as a matter of

law.” Rossignol v. Voorhaar, 316 F.3d 516, 523 (4th Cir. 2003)

(citation and internal quotation marks omitted). “When

considering each individual motion, the court must take care to

resolve all factual disputes and any competing, rational

inferences in the light most favorable to the party opposing

that motion.” Id. (citation and internal quotation marks

omitted).

IV. ANALYSIS

A. Cato’s Motion for Summary Judgment

Plaintiff has asserted a claim against Cato for an alleged

violation of her Fourth Amendment rights under 42 U.S.C. § 1983.

(FAC (Doc. 11) at 16–20.) Though Plaintiff’s amended complaint

fails to clearly specify the legal theories she relies on to

claim her rights were violated, this court interprets her

amended complaint as alleging claims of false arrest, malicious

prosecution, and excessive force.5

Cato argues he is entitled to summary judgment because he

did not violate Plaintiff’s constitutional rights, and any

constitutional right that was violated was not clearly

established at the time of the violation. (Cato MSJ Br.

(Doc. 29) at 8–23.) Plaintiff disagrees and contends that:

(1) Cato acted as an agent of RSBE and thus had no authority to

arrest her, (Pl.’s Resp. Cato MSJ (Doc. 40) at 4–10), (2) Cato

lacked probable cause to arrest her, (id. at 13–17), (3) the use

of handcuffs during her arrest qualified as excessive force,

(id. at 17–18), and (4) Cato is not entitled to qualified

immunity, (id. at 19–23).6

5 Plaintiff “asserts no claim against Defendant Cato for the

search of [her daughter’s] vehicle.” (Pl.’s Resp. Cato MSJ

(Doc. 40) at 4.) Therefore, this court will not address whether

Plaintiff’s Fourth Amendment rights were violated by Smith’s

search of Unique’s car.

6 Plaintiff also appears to assert official capacity claims

against Cato in her amended complaint. (See FAC (Doc. 11)

at 4–5.) These fail because “official-capacity suits generally

represent only another way of pleading an action against an

entity of which an officer is an agent.” Monell v. Dep’t of Soc.

Servs. of City of New York, 436 U.S. 658, 691 (1978). Thus, an

official capacity suit should be against the Office of the

Sheriff, which Plaintiff has not named as a defendant, not Cato.

1. Plaintiff’s false arrest and malicious

prosecution claims fail because Cato had probable

cause to arrest Plaintiff

To prevail on a § 1983 claim, Plaintiff must show that she

was deprived of a federal statutory or constitutional right and

that “deprivation was committed under color of state law.” Am.

Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999).

Plaintiff claims Cato violated her Fourth Amendment rights.

The Fourth Amendment protects the right “to be secure . . .

against unreasonable searches and seizures.” U.S. Const. amend.

IV.

Whether [an] arrest was constitutionally valid depends

. . . upon whether, at the moment the arrest was made,

the officers had probable cause to make it — whether

at that moment the facts and circumstances within

their knowledge and of which they had reasonably

trustworthy information were sufficient to warrant a

prudent man in believing that the petitioner had

committed or was committing an offense.

Beck v. Ohio, 379 U.S. 89, 91 (1964); see also Virginia v.

Moore, 553 U.S. 164, 171 (2008) (“[W]hen an officer has probable

cause to believe a person committed even a minor crime in his

presence, the balancing of private and public interests is not

in doubt. The arrest is constitutionally reasonable.”).

The default rule is that probable cause establishes

constitutionality; the Supreme Court has recognized exceptions

only when “searches or seizures [are] conducted in an

extraordinary manner, unusually harmful to an individual’s

privacy or even physical interests.” Whren v. United States, 517

U.S. 806, 818 (1996). The Supreme Court has not, however, held

that allegations of assault or excessive force alone abrogate

the default probable-cause rule.

False arrest is an “illegal restraint of the person of any

one against his will.” Fowler v. Valencourt, 334 N.C. 345, 348,

435 S.E.2d 530, 532 (1993). “Probable cause is an absolute bar

to a claim for false arrest.” Williams v. City of Jacksonville

Police Dep’t, 165 N.C. App. 587, 596, 599 S.E.2d 422, 430

(2004). Similarly, a claim for malicious prosecution requires a

showing “that the defendant (1) initiated or participated in the

earlier proceeding, (2) did so maliciously, (3) without probable

cause, and (4) the earlier proceeding ended in favor of the

plaintiff.” Turner v. Thomas, 369 N.C. 419, 425, 794 S.E.2d 439,

444 (2016) (emphasis added). Thus, a showing that an arrest was

made with probable cause will defeat a false arrest or malicious

prosecution claim arising from that arrest.

In Allen v. McCurry, 449 U.S. 90 (1980), the Supreme Court

“concluded that the doctrine of collateral estoppel . . .

applies to § 1983 suits against police officers to recover for

Fourth Amendment violations.” Haring v. Prosise, 462 U.S. 306,

313 (1983). The Court determined that “Congress has specifically

required all federal courts to give preclusive effect to state-

court judgments whenever the courts of the State from which the

judgments emerged would do so . . . .” Allen, 449 U.S. at 96.

“The question here, then, is whether, if the instant § 1983

action were pending in a North Carolina state court, the North

Carolina courts would give the earlier state court judgment”

preclusive effect. Davenport v. North Carolina Dep’t of Transp.,

3 F.3d 89, 92 (4th Cir. 1993); see also Hamstead v. Walker,

No. 20-1650, 2022 WL 5133569, at *3 (4th Cir. Oct. 5, 2022)

(affirming dismissal of the plaintiff’s § 1983 retaliatory

arrest claim because, under West Virginia law, the plaintiff’s

prior “nolo contendere plea precludes a civil rights plaintiff

from arguing her arrest was not supported by probable cause”).

Under North Carolina law, a conviction by a court of

competent jurisdiction establishes the existence of probable

cause, even if that conviction is later overturned. See Griffis

v. Sellars, 20 N.C. 315, 177 (1838) (“[P]robable cause is

judicially ascertained by the verdict of the jury and judgment

of the Court thereon, although upon an appeal, a contrary

verdict and judgment be given in a higher Court.”); Smith v.

Thomas, 149 N.C. 100, 62 S.E. 772, 773 (1908) (“[A] conviction

of the defendant in the criminal prosecution by a court of

competent jurisdiction is conclusive in an action by him for

malicious prosecution upon the question of probable cause.”);

Overton v. Combs, 182 N.C. 4, 108 S.E. 357, 358 (1921) (“[W]here

in a former suit a trial court having jurisdiction has decided

the essential issues in favor of the plaintiff on proper proof

or admission, that finding is conclusive in plaintiff’s favor on

this question of probable cause. . . .”). This finding of

probable cause “can only be rebutted by evidence that the

conviction was procured by fraud or other unfair means.” Hill v.

Winn-Dixie Charlotte, Inc., 100 N.C. App. 518, 521, 397 S.E.2d

347, 349 (1990).

Plaintiff argues the above-stated rule that a prior

conviction conclusively establishes probable cause “is not still

good law” in North Carolina. (Pl.’s Resp. Cato MSJ (Doc. 40) at

10.) However, Plaintiff’s own citation to Myrick v. Cooley, 91

N.C. App. 209, 371 S.E.2d 492 (1988), in support of this

contention undercuts her argument. (See Pl.’s Resp. Cato MSJ

(Doc. 40) at 11.) In Myrick, the North Carolina Court of Appeals

expressed “doubts about the wisdom of the rule” that “a District

Court judgment which is subsequently overturned upon a trial de

novo in Superior Court . . . insulate[s] the arresting officer

from liability.” Myrick, 91 N.C. App. at 213, 371 S.E.2d at 495.

However, those “doubts” did not carry the day because the court

went on to decide that it was “compelled by the established

precedent to conclude that . . . the [plaintiff’s] conviction

establishes, as a matter of law, the existence of probable cause

for his arrest . . . .” Id. Having located no case in North

Carolina overruling this precedent, this court finds it remains

good law.

Here, Cato arrested Plaintiff and she was charged with

disorderly conduct in violation of N.C. Gen. Stat. § 14-288.4(a)

and resisting a public officer in violation of N.C. Gen. Stat.

§ 14-223. (See FAC (Doc. 11) ¶ 52.) Plaintiff was found guilty

on both counts in a bench trial. (Id. ¶ 72.) In a subsequent

jury trial, she was again found guilty on both counts. (Id.

¶ 76.) Plaintiff appealed her convictions to the North Carolina

Court of Appeals, which reversed the lower court, finding there

was not substantial evidence to support either of Plaintiff’s

convictions. See Humphreys, 275 N.C. App. at 800, 853 S.E.2d at

797. The North Carolina Court of Appeals did not address whether

Cato had probable cause to arrest Plaintiff. See id.

“A federal court sitting in diversity has an obligation to

apply the law of the forum state as it is interpreted by the

state’s highest court.” Adamson v. Columbia Gas Transmission,

LLC, 579 F. App’x 175, 177 (4th Cir. 2014) (citing Erie R.R. Co.

v. Tompkins, 304 U.S. 64, 79 (1938)). Here, the North Carolina

state court precedent is clear, and this court is bound to

adhere to it.

Under North Carolina law, Plaintiff’s two prior convictions

for violations of N.C. Gen. Stat. §§ 14-288.4(a) and 14-233

establish that Cato had probable cause to arrest Plaintiff for

these offenses, notwithstanding the fact that her convictions

were reversed on appeal. Plaintiff argues this court should

reach the opposite conclusion for several reasons.

First, Plaintiff argues that her convictions were

“wrongfully procured.” (Pl.’s Resp. Cato MSJ (Doc. 40) at 11.)

While Plaintiff is correct that a prior conviction does not

conclusively establish probable cause where the “conviction was

procured by fraud or other unfair means,” Hill, 100 N.C. App. at

521, 397 S.E.2d at 349, there is no evidence fraud or unfairness

tainted Plaintiff’s convictions.

In Hill, the North Carolina Court of Appeals noted that a

conviction would be considered unfair where the plaintiff was

“convicted by perjured testimony that was procured by threats,

intimidation and promises of reward.” 100 N.C. App. at 521, 397

S.E.2d at 350. Likewise, an allegation that a written confession

introduced in the plaintiff’s initial trial was “false,

fictitious, fabricated, and fraudulent” “clearly alleged that

the verdict against [the plaintiff] in district court was

procured ‘fraudulently or unfairly.’” Simpson v. Sears, Roebuck

& Co., 231 N.C. App. 412, 416, 752 S.E.2d 508, 510 (2013). In

contrast, an initial conviction that is subsequently overturned

does not show an absence of probable cause for the arrest or

that the conviction was the result of fraud or unfairness. See

Hill, 100 N.C. App. at 521, 397 S.E.2d at 350.

Here, Plaintiff contends her conviction was unfair because

Cato was mistaken about the law. (Pl.’s Resp. Cato MSJ (Doc. 40)

at 11–12.) The basis for her opinion that Cato wrongfully

arrested her is the North Carolina Court of Appeals’ decision

overturning her convictions. (See id.) Even assuming that Cato

was incorrect about the law, an officer’s misunderstanding of

the law does not render a resulting conviction fraudulent. The

judge in Plaintiff’s bench trial was responsible for

“consider[ing] and weigh[ing] all the competent evidence before

him.” Matter of Est. of Trogdon, 330 N.C. 143, 148, 409 S.E.2d

897, 900 (1991) (emphasis omitted). Later, the judge in

Plaintiff’s jury trial “was required to consider the evidence”

and determine if there was “substantial evidence (1) of each

essential element of the offense charged and (2) that [the]

defendant is the perpetrator of the offense.” State v. Glasco,

160 N.C. App. 150, 156, 585 S.E.2d 257, 262 (2003). Cato’s

alleged misunderstanding of the law had no bearing on the two

trial judges’ evaluations of whether Plaintiff violated the law.

Therefore, this court is unpersuaded by Plaintiff’s argument

that her conviction was obtained by “fraud or unfair means.” See

Hill, 100 N.C. App. at 522, 397 S.E.2d at 350.

Second, Plaintiff argues that the Eastern District of North

Carolina considered “a similar situation” in Tarlton v. Sealey,

No. 5:15-CV-451-BO, 2018 WL 1129976, at *5 (E.D.N.C. Mar. 1,

2018), aff’d sub nom. Gilliam v. Sealey, 932 F.3d 216 (4th Cir.

2019), and determined that “the plaintiffs could pursue a claim

when their convictions and sentences were vacated by the North

Carolina Superior Court.” (Pl.’s Resp. Cato MSJ (Doc. 40) at

12.)

This court disagrees with Plaintiff’s reading of Tarlton.

There, the court acknowledged that, under North Carolina law, “a

prior conviction, even if reversed on appeal, is conclusive

evidence of probable cause for the arrest.” Tarlton, 2018 WL

1129976, at *5. The court noted that the plaintiff’s convictions

had been vacated, rather than reversed by the superior court,

but went on to reason that of “critical importance in this case

is that [the plaintiff’s] convictions were not merely overturned

or vacated based on a legal error; instead, both men ha[d] been

granted full pardons of innocence by the Governor of North

Carolina.” Id. at *6. This court finds that Tarlton is

distinguishable from the case at bar where Plaintiff did not

receive a pardon from the Governor.

Plaintiff’s convictions in the bench trial and jury trial

establish that Cato had probable cause to arrest Plaintiff. A

required element of false arrest and malicious prosecution is

that the arrest was made without probable cause. As Cato acted

with probable cause, these claims fail.

2. Plaintiff’s excessive force claim fails because

Cato used reasonable force

The use of excessive force during an arrest violates the

Fourth Amendment only when it is not objectively reasonable.

Graham v. Connor, 490 U.S. 386, 397 (1989). In other words, “the

question is whether the officers’ actions are ‘objectively

reasonable’ in light of the facts and circumstances confronting

them, without regard to their underlying intent or motivation.”

Id. “Under the common law, a law enforcement officer has the

right, in making an arrest and securing control of an offender,

to use only such force as may be reasonably necessary to

overcome any resistance and properly discharge his duties.”

Myrick, 91 N.C. App. at 215, 371 S.E.2d at 496 (citing State v.

Fain, 229 N.C. 644, 50 S.E.2d 904 (1948)). Relevant factors

include “the severity of the crime at issue, whether the suspect

poses an immediate threat to the safety of the officers or

others, and whether he is actively resisting arrest or

attempting to evade arrest by flight.” Graham, 490 U.S. at 396.

“[A] standard procedure such as handcuffing would rarely

constitute excessive force where the officers were justified . .

. in effecting the underlying arrest.” Brown v. Gilmore, 278

F.3d 362, 369 (4th Cir. 2002).

Here, Cato had probable cause to suspect that Plaintiff

violated two North Carolina statutes. (See supra Section

IV.A.1.) This provided him with legal justification to arrest

Plaintiff. Therefore, he was permitted to place her in handcuffs

— “a standard procedure.” See Brown, 278 F.3d at 369. Plaintiff

does not allege that any additional force was used other than

what was necessary to place her in handcuffs. Therefore, this

court finds that in the circumstances present here, placing

Plaintiff in handcuffs was reasonably necessary to accomplish

the arrest and did not constitute excessive force.

3. Plaintiff’s argument about Cato and RSBE’s

relationship also fails

Plaintiff’s response makes an additional, somewhat unclear,

argument for denying Cato’s motion for summary judgment. (Pl.’s

Resp. Cato MSJ (Doc. 40) at 4–10.) The gravamen of her claim

appears to be that Plaintiff was justifiably confused about

whether Cato was acting as a representative of RSBE or the

Sheriff’s Office during the search and that Cato, as a

representative of RSBE, lacked authority to arrest Plaintiff.

(Id.)

This court first notes that Plaintiff fails to cite any

legal authority in support of her argument. (See id.) Second,

Plaintiff’s argument is defeated by her own admission that “[a]s

a sworn law enforcement officer, Defendant Cato has the

authority to make an arrest.” (Id. at 8.) That conclusion is not

undermined merely because Cato was assigned to work in a school

or because Plaintiff may have been confused about Cato’s role

and powers during the arrest. Therefore, this court does not

find Plaintiff’s argument on this point persuasive.

Since Cato had probable cause to arrest Plaintiff, her

claims for malicious prosecution and false arrest must fail.

Furthermore, as Cato used only reasonable force in arresting

Plaintiff, her claims for excessive force likewise fail. Thus,

this court will grant Cato’s motion for summary judgment.

B. RSBE’s Motion for Summary Judgment

Defendant RSBE seeks dismissal of Plaintiff’s three claims

against it. Plaintiff’s claims are: (1) a Monell claim under 42

U.S.C. § 1983, (2) a Title VI claim for racial discrimination,

and (3) a claim for negligent retention and supervision. (See

FAC (Doc. 11) at 20–23.) This court finds that these three

claims fail.

1. Plaintiff’s Monell claim fails because her

constitutional rights were not violated

Plaintiff argues RSBE is not entitled to summary judgment

on her Monell claim because two school policies led to the

violation of Plaintiff’s Fourth Amendment rights. (Pl.’s Resp.

RSBE MSJ (Doc. 42) at 5–8.) Without reaching the issue of

whether RSBE had a policy or custom in place, this court finds

Plaintiff’s Monell claim fails because her constitutional rights

were not violated during her arrest.

Municipalities may be held liable under 42 U.S.C. § 1983

for constitutional torts caused by the municipality. City of

Canton v. Harris, 489 U.S. 378, 385 (1989). However, a

municipality cannot be held responsible for the conduct of its

officers on a theory of respondeat superior. Monell, 436 U.S. at

691-95. It is only when the execution of the government’s policy

or custom inflicts the injury that the municipality may be held

liable under § 1983.” City of Canton, 489 U.S. at 385 (cleaned

up). School boards are considered municipalities for purposes of

§ 1983 claims. Monell, 436 U.S. at 696.

To prove municipal liability, a plaintiff must plausibly

allege “(1) that the defendants acted under color of state law

and (2) that the plaintiff suffered a deprivation of a

constitutional right as a result of that action.” Davis v.

Durham Mental Health Developmental Disabilities Substance Abuse

Area Auth., 320 F. Supp. 2d 378, 403 (M.D.N.C. 2004) (citing

Gomez v. Toledo, 446 U.S. 635 (1980)). The first element — “that

the defendants acted under color of state law” requires a

plaintiff to plausibly allege that an official policy or custom

led to the alleged deprivation of a constitutional right. Id. A

custom, policy, or practice can be shown 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) (cleaned up).

Here, because Plaintiff’s constitutional rights have not

been violated, her Monell claim against RSBE fails as a matter

of law. “Plaintiff bases her Monell claim on the violation of

her Fourth Amendment rights to be free from unreasonable search

and seizure.” (Pl.’s Resp. RSBE MSJ (Doc. 42) at 7.) This court

has concluded that Plaintiff’s Fourth Amendment rights were not

violated during her arrest. Therefore, this court will grant

RSBE’s motion for summary judgment as to Plaintiff’s Monell

claim.

2. Plaintiff lacks standing to bring a Title VI

claim

RSBE contends Plaintiff’s Title VI claim is legally

deficient because she lacks standing and Plaintiff has failed to

provide evidence showing she was the victim of intentional

racial discrimination.7 (See RSBE MSJ Br. (Doc. 35) at 12–15.)

Plaintiff contends that she has standing because she was an

intended beneficiary of East Rowan High School. (See Pl.’s Resp.

RSBE MSJ (Doc. 42) at 9–10.) She claims to have acquired

intended beneficiary status because her daughter invited her to

the school. (Id.) Plaintiff also argues she was the victim of

racial discrimination because she believes race played a role in

her arrest and because Black students in the school system were

disproportionately impacted by school punishments. (See id. at

10–11.) This court agrees with RSBE that Plaintiff lacks

standing to bring a Title VI claim and has not proffered

evidence that she was the victim of intentional racial

discrimination.

The party seeking to invoke the federal courts’

jurisdiction has the burden of satisfying Article III’s standing

7 RSBE also contends that Cato was not an employee or agent

of the Board; therefore, the Board cannot be liable for any

alleged discrimination he committed. (RSBE MSJ Reply (Doc. 44)

at 7–8.) This court does not reach this issue and assumes

without deciding that RSBE could be liable for Cato’s actions.

requirement. Miller v. Brown, 462 F.3d, 312, 316 (4th Cir.

2006). To meet that burden, a plaintiff must demonstrate three

elements: (1) that the plaintiff has suffered an injury in fact

that is “concrete and particularized” and “actual or imminent”;

(2) that the injury is fairly traceable to the challenged

conduct of the defendant; and (3) that a favorable decision is

likely to redress the injury. Lujan v. Defs. of Wildlife, 504

U.S. 555, 560–61 (1992).

Title VI declares that: “[n]o person in the United States

shall, on the ground of race, color, or national origin, be

excluded from participation in, be denied the benefits of, or be

subjected to discrimination under any program or activity

receiving Federal financial assistance.” 42 U.S.C. § 2000d. The

goals of Title VI are “to avoid the use of federal funds to

support discriminatory practices” and “to provide individual

citizens with effective protection against those practices.”

Bogdan v. Hous. Auth. of the City of Winston-Salem, No.

1:05CV00568, 2006 WL 3848693, at *4 (M.D.N.C. Dec. 29, 2006)

(cleaned up). The terms “program or activity” and “program” in

the statute encompass “a local educational agency . . . or other

school system.” 42 U.S.C. § 2000d-4a(2)(B). “Title VI

essentially creates a contract between the Government and

recipient of the funds, ‘conditioning an offer of federal

funding on a promise by the recipient not to discriminate.’”

Bogdan, 2006 WL 3848693, at *4 (citing Gebser v. Lago Vista

Indep. Sch. Dist., 524 U.S. 274, 286 (1998)). Remedial action

under the statute is limited to instances of intentional

discrimination, not disparate impact claims. Alexander v.

Sandoval, 532 U.S. 275, 280 (2001).

For a plaintiff to assert a claim under Title VI, there

must “be a ‘logical nexus’ between the alleged discriminatory

practices . . . and the use of federal funds . . . .” Rogers v.

Bd. of Educ. of Prince George’s Cnty., 859 F. Supp. 2d 742, 747

(D. Md. 2012). To establish a logical nexus, the plaintiff must

be “either an intended beneficiary, an applicant, or a

participant” in the federally funded program. Bogdan, 2006 WL

3848693, at *6.

RSBE does not dispute that it received federal funding and

therefore is required to comply with Title VI. (See RSBE MSJ Br.

(Doc. 35) at 13.) Instead, it argues that Plaintiff lacks

standing to bring a Title VI claim because she is not an

intended beneficiary of the school. (Id. at 13–14.) This court

agrees.

While this court was unable to locate Fourth Circuit cases

addressing whether a parent is an intended beneficiary of their

child’s school, numerous courts in other circuits agree that

“[t]he intended beneficiaries of a federally funded public

school program are school children, not their parents.” Jackson

v. Katy Indep. Sch. Dist., 951 F. Supp. 1293, 1298 (S.D. Tex.

1996); accord I.G. by & through Grunspan v. Jefferson Cnty. Sch.

Dist. through Bd. of Educ. for Jefferson Cnty. Sch. Dist., 452

F. Supp. 3d 989, 998 (D. Colo. 2020) (“Courts have consistently

held parents are not the intended beneficiaries of school

programs and, therefore, may not assert Title VI claims on their

own behalf.”); Verrett v. Indep. Sch. Dist. #625, No. CV 18-

2513(DSD/BRT), 2019 WL 2870076, at *6 (D. Minn. July 3, 2019)

(“Courts have routinely denied standing under the theories of

relief raised here based solely on parental status.”); Murray v.

Lakeland Cent. Sch. Dist. Bd. of Educ., No. 16-CV-6795 (KMK),

2017 WL 4286658, at *8 (S.D.N.Y. Sept. 26, 2017) (holding that a

mother of a schoolchild “cannot maintain a Title VI claim

against the Lakeland Defendants because she is not the intended

beneficiary of th[e] federally funded school program.”);

Franklin v. Mansfield City Sch. Dist., No. 1:14CV1163, 2015 WL

7429046, at *10 n.119 (N.D. Ohio Oct. 30, 2015) (“Franklin, as

Brown’s mother, has no standing herself to bring an action under

Title VI, but may do so on behalf of her minor son.”) report and

recommendation adopted, No. 1:14CV1163, 2015 WL 7430053 (N.D.

Ohio Nov. 18, 2015); Price v. Louisiana Dep’t of Educ., No. CV

08-462 JJB, 2009 WL 10709923, at *3 (M.D. La. Jan. 6, 2009)

(holding an uncle lacked standing to sue his nephew’s school for

alleged discrimination against the uncle) aff’d sub nom. Price

v. Louisiana Dep’t of Educ., 329 F. App’x 559 (5th Cir. 2009);

R.W. ex rel. Williams v. Delaware Dep’t of Educ., No. CIV.A.05-

662-GMS/MPT, 2008 WL 4330461, at *3 (D. Del. Sept. 22, 2008)

(“[A child], and not [their parent], is the intended beneficiary

of the public school program, and thus, [a parent] lacks

standing to state a claim in her own right pursuant to Title

VI.”) report and recommendation adopted, No. CIVA 05-662 GMS-

MPT, 2008 WL 4547192 (D. Del. Oct. 9, 2008); Johnson v. Dodson

Pub. Sch., No. CV-05-39-GF-CSO, 2006 WL 8435827, at *4 (D. Mont.

May 4, 2006) (finding that the plaintiff, a grandmother and

custodian of a child, was “not an intended beneficiary, nor a

participant in the school”); Doe v. Woodridge Elementary Sch.

Dist. No. 68 Bd. of Educ., No. 04 C 8250, 2005 WL 910732, at *2

(N.D. Ill. Apr. 13, 2005) (“[A parent] personally lacks standing

to assert a claim for damages against the [d]efendants, but may

bring an action on behalf of her minor son, who, as an intended

beneficiary of the school, has standing to assert a claim for

discrimination under Title VI.”) As Plaintiff brings her Title

VI claim on her own behalf, and not on behalf of a minor child

who was an intended beneficiary of the school, (see generally

FAC (Doc. 11)), she lacks standing.

Plaintiff argues that because her daughter invited her to

the school, she became an intended beneficiary of the school.

(See Pl.’s Resp. RSBE MSJ (Doc. 42) at 9–10.) Plaintiff does not

cite any legal authority supporting this contention. (See id.)

This court does not agree that a student can transform another

individual into an intended beneficiary of a federally funded

program merely by inviting them onto a school’s campus.

Moreover, this court is guided by the findings of other district

courts that parents are not the intended beneficiaries of their

children’s schools. See, e.g., Jackson, 951 F. Supp. at 1298.

Thus, this court finds that Plaintiff’s novel and unsupported

argument is insufficient to meet her “burden of establishing

standing.” Miller, 462 F.3d at 316.

RSBE next contends that there is no evidence from which a

jury could infer that RSBE discriminated against Plaintiff based

on her race. (RSBE MSJ Br. (Doc. 35) at 7–8.) Plaintiff disputes

this and believes “her race played a role . . . in her arrest.”

(Pl.’s Resp. RSBE MSJ (Doc. 42) at 10—11.) Plaintiff cites

deposition testimony from the Superintendent of the Rowan County

School System, Dr. Lynn Moody, that “black students were . . .

disproportionately impacted by school punishments.” (Id. at 10.)

This court finds that Plaintiff’s evidence is insufficient

to make out a claim under Title VI against RSBE. First, where a

plaintiff “has failed, after having been afforded full

discovery, to produce any evidence of . . . discrimination,

[her] own naked opinion, without more, is not enough to

establish a prima facie case of . . . discrimination. Conclusory

assertions that [the defendant’s] state of mind and motivation

are in dispute are not enough to withstand summary judgment.”

Goldberg v. B. Green & Co., 836 F.2d 845, 848 (4th Cir. 1988)

(citations omitted). Thus, Plaintiff’s belief that racial animus

motivated her arrest does not create a genuine issue of material

fact such that the claim may survive summary judgment.

Second, Plaintiff’s other piece of evidence — that Black

students were disproportionately impacted by school punishment —

has little bearing on the present case for several reasons.

The evidence does not show that the initial search of

Unique Humphries’ car was the result of racial discrimination.

Instead, the evidence is that the car was flagged after a random

dog sniff in the student parking lot. (See supra Section I.) Per

Cato’s uncontradicted deposition testimony, he did not know who

the car belonged to when the car was initially flagged, only

when he consulted his list that matched students to their

parking spots was the car identified as Unique’s. (See Cato Dep.

(Doc. 29–2) at 48.)

Additionally, Cato testified he was not involved in

enforcing school rules, (see id. at 82–83 (“I never write up any

students for any violations. It’s only done through the school

system.”)), and his job description specifically stated he was

ordinarily not to be involved in school discipline, (see

Agreement for SRO Services (Doc. 35–6) at 2–4 (“The SRO shall

refrain from being involved in the enforcement of disciplinary

rules that do not constitute violations of the law, except to

support staff in maintaining a safe school environment.”). Even

if disparate treatment of Black students across the district

could somehow be attributed to each individual in the district

who meted out school discipline, it could not be attributed to

Cato since he was not involved in school punishments. Thus, this

court has no basis upon which to conclude that Cato had a

history of disparate treatment of students based on race, much

less that he intentionally discriminated against Plaintiff.

Therefore, RSBE’s motion for summary judgment will be

granted as to Plaintiff’s Title VI claim because Plaintiff lacks

standing and has not proffered evidence upon which a jury could

conclude that she was the victim of intentional racial

discrimination.

3. Plaintiff lacks evidence of negligent hiring

Finally, RSBE seeks summary judgment on Plaintiff’s claim

for negligent hiring8 on the grounds that: (1) Plaintiff failed

to allege a waiver of sovereign immunity, (2) Plaintiff failed

to proffer evidence that RSBE was on notice that Cato had

engaged in wrongful activity, and (3) Cato was not an employee

of RSBE. (See RSBE MSJ Br. (Doc. 35) at 15–17.) This court

agrees that Plaintiff’s amended complaint failed to allege a

waiver of sovereign immunity. This court also finds that

amending the complaint would be futile since Plaintiff has

failed to proffer evidence that RSBE had notice Cato was unfit

for the SRO position. As this court will grant RSBE’s motion for

summary judgment on this basis, this court need not determine

whether Cato was an employee or agent of RSBE.

“Under the doctrine of sovereign immunity, the State is

immune from suit absent waiver of immunity.” Evans v. Hous.

8 Plaintiff’s amended complaint says this claim is for

“negligent retention and supervision.” (See FAC (Doc. 11) at

22.) North Carolina Courts “use the shorthand ‘negligent hiring’

to refer to the doctrine that includes negligent hiring,

retention, and supervision for ease of reading.” Keith v.

Health-Pro Home Care Servs., Inc., 381 N.C. 442, 445 n.1, 873

S.E.2d 567, 571 n.1 (2022). This court will do the same.

Plaintiff also appears to argue that she asserts a claim

for “negligent training” against RSBE. (Pl.’s Resp. RSBE MSJ

(Doc. 42) at 13.) This court is unaware of any “negligent

training” claim under North Carolina law that is separate from a

negligent hiring, retention, and supervision claim.

Auth. of City of Raleigh, 359 N.C. 50, 53, 602 S.E.2d 668, 670

(2004) (quoting Meyer v. Walls, 347 N.C. 97, 104, 489 S.E.2d

880, 884 (1997)). “Governmental immunity is that portion of the

State’s sovereign immunity which extends to local governments.”

Wray v. City of Greensboro, 370 N.C. 41, 47, 802 S.E.2d 894, 898

(2017). “In order to overcome a defense of governmental

immunity, the complaint must specifically allege a waiver of

governmental immunity. Absent such an allegation, the complaint

fails to state a cause of action.” Id. (quoting Fabrikant v.

Currituck Cnty., 174 N.C. App. 30, 38, 621 S.E.2d 19, 25

(2005)). North Carolina courts have “consistently disallowed

claims based on tort against governmental entities when the

complaint failed to allege a waiver of immunity.” Paquette v.

Cnty. of Durham, 155 N.C. App. 415, 418, 573 S.E.2d 715, 717

(2002) (collecting cases). “This requirement does not, however,

mandate that a complaint use any particular language. Instead,

consistent with the concept of notice pleading, a complaint need

only allege facts that, if taken as true, are sufficient to

establish a waiver of immunity.” Wray, 370 N.C. at 48, 802

S.E.2d at 899 (cleaned up).

Plaintiff argues that three paragraphs in its original

complaint, two of which were replicated in its amended

complaint, “provide a reasonable forecast of waiver.” (Pl.’s

Resp. RSBE MSJ (Doc. 42) at 15 (citations omitted).) Plaintiff’s

counsel is reminded that an amended complaint replaces the

original complaint. See Young v. City of Mount Ranier, 238 F.3d

567, 572 (4th Cir. 2001) (“As a general rule, an amended

pleading ordinarily supersedes the original and renders it of no

legal effect.”) (citation and internal quotation marks omitted).

However, even when considering all three paragraphs, none would

have put RSBE on notice that Plaintiff alleged a waiver of

sovereign immunity.

Plaintiff directs this court’s attention to the following

statements:

22. To the extent, if at all, the Court finds

that Defendants are immune from state law claims,

Defendant Cato would then be liable in his official

capacity to Plaintiff under Article I, §§ 19 and 20 of

the North Carolina State Constitution.

23. To the extent, if at all, the Court find that

the Defendant the Board (referenced herein as RSBE) is

immune from the state law claim of Negligence[sic]

Retention and Supervision, Deputy Cato would then be

liable in his official capacities to Plaintiff under

Article I, § 20 of the North Carolina State

Constitution

. . . .

137. To the extent, if at all, the Court finds

that Defendant Rowan Salisbury Board of Education is

immune from the state law claim of Negligence[sic]

Retention and Supervision, Plaintiff will not have an

adequate remedy at law against Defendants. Thus,

Plaintiff brings this claim, in the alternative,

against the Board for their deficient, negligent

supervision of Defendant Deputy Cato; their failure to

correct and address the repeated unconstitutional,

excessive, and unreasonable use of force by Defendant

Deputy Cato; and because this lack of supervision

proximately caused the violation of Plaintiff’s

constitutional rights and the injuries described.

Plaintiff may bring that claim of negligent

supervision and retention directly under Article I,

§ 20 in the absence of any state law remedy against

Defendant Cato and Defendant Rowan Salisbury Board of

Education for their violation of Plaintiff’s rights.

(Pl.’s Resp. RSBE MSJ (Doc. 42) at 14 (citing Doc. 3 at ¶¶ 22,

23, 137).)

The first two paragraphs recite that if RSBE is immune,

then Plaintiff brings her claims against Cato in his official

capacity. (See id.) These statements do not plead that RSBE

waived sovereign immunity. Instead, they instruct the court on

how it should respond if the court finds that RSBE is in fact

immune from suit. Likewise, the third paragraph informs the

court that if RSBE is immune from Plaintiff’s excessive force

claim, then Plaintiff wishes to bring a claim for “negligent

supervision of Defendant Deputy Cato.” (Id.) This too does not

plead a waiver of sovereign immunity. Instead, it directs the

court on how to proceed should it find that an excessive force

claim cannot be maintained against RSBE. Thus, while these

paragraphs contemplate that various immunity doctrines exist and

that some of those doctrines may bar some of Plaintiff’s claims

against some Defendants, they do not contend that sovereign

immunity had been waived.

In the alternative, Plaintiff “ask[s], on equitable

grounds, to be permitted to make an amendment to her

Compliant[sic] to specifically allege the waiver of governmental

immunity by Defendant RSBE.” (Pl.’s Resp. RSBE MSJ (Doc. 42) at

15.) A district court must “freely give leave [to amend] when

justice so requires.” Fed. R. Civ. P. 15(a)(2). Despite this

liberal rule, “a district court may deny leave to amend if the

amendment ‘would be prejudicial to the opposing party, there has

been bad faith on the part of the moving party, or the amendment

would have been futile.’” United States ex rel. Nathan v. Takeda

Pharm. N. Am., Inc., 707 F.3d 451, 461 (4th Cir. 2013)

(quoting Laber v. Harvey, 438 F.3d 404, 426 (4th Cir. 2006) (en

banc)).

This court finds that amendment would be futile because

Plaintiff has failed to meet one of the elements for a negligent

hiring claim.9 To make out a claim for negligent hiring under

North Carolina law, the plaintiff must prove:

(1) the specific negligent act on which the action is

founded[;] (2) incompetency, by inherent unfitness or

previous specific acts of negligence, from which

incompetency may be inferred; and (3) either actual

notice to the master of such unfitness or bad habits,

or constructive notice, by showing that the master

could have known the facts had he used ordinary care

in oversight and supervision[;] and (4) that the

9 This court also notes that Plaintiff has failed to comply

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

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

injury complained of resulted from the incompetency

proved.

Keith, 381 N.C. at 451, 873 S.E.2d at 575 (emphasis added)

(cleaned up).

RSBE contends that Plaintiff has not established the third

element because “Plaintiff is unable to prove the Board knew or

should have known Deputy Cato was engaged in ‘police misconduct’

or any other type of wrongful act at issue in this case and

failed to address it.” (RSBE MSJ Br. (Doc. 35) at 16.) Plaintiff

does not directly respond to this argument. (See Pl.’s Resp.

RSBE MSJ (Doc. 42) at 11–13.)

This court finds, based on the evidence before it, that

RSBE lacked actual or constructive notice Cato was “unfit” or

had “bad habits” related to his employment as an SRO.

Charles Edwards, the Assistant Principal at East Rowan,

said he was not aware of formal or informal complaints that had

been made against Cato or any complaints by students of unfair

treatment. (See Doc. 31–9 at 6, 23–24, 36.) Likewise,

Superintendent Moody stated in her deposition that she was not

“aware of any complaints or actions brought against” Cato. (See

Doc. 31–2 at 6, 22.) Similarly, Sheriff Kevin Auten said that he

had never disciplined Cato and that the only issue he was aware

of regarding Cato was an operational one in which a computer was

not turned in on time. (See Doc. 31–3 at 29–30.)

Cato provided the most information on his own disciplinary

history. He stated he was written up while employed by the State

Highway Patrol for car wrecks, crossing the center line in a

chase, exceeding a safe speed in a crash, and turning in a

voluntary financial pledge a day late. (See Cato Dep.

(Doc. 29–2) at 13–15.) He also said that no complaints had been

lodged against him for excessive force or racial discrimination.

(Id. at 16.)

This court is skeptical that Cato’s history shows any

“unfitness or bad habits,” see Keith, 381 N.C. at 451, 873

S.E.2d at 575, and Plaintiff does not present any argument to

the contrary, (see Pl.’s Resp. RSBE MSJ (Doc. 42) at 11–13).

Additionally, to the extent bad habits could be inferred from

Cato’s disciplinary history, they appear largely confined to

driving — a task that was not implicated by Cato’s regular

duties as an SRO. (See Cato Dep. (Doc. 29–2) at 22–23, 28–29

(describing his job duties as, inter alia, handling student

parking passes, helping lost students, ensuring doors are

locked, monitoring for vaping, checking on teachers, assisting

in the office, and issuing referrals for diversion programs));

see also Agreement for SRO Services (Doc. 35–6) at 2–4)

(outlining “Duties of the SRO”).) Moreover, Cato’s driving

skills are not implicated by the current case — a parent

arrested during a search of her child’s car. Furthermore, as

noted above, Plaintiff has not argued that Cato’s disciplinary

history demonstrates “unfitness or bad habits,” see Keith, 381

N.C. at 451, 873 S.E.2d at 575, or that RSBE was or should have

been aware of Cato’s history, (see Pl.’s Resp. RSBE MSJ

(Doc. 42) at 11–13).

Therefore, this court finds that Plaintiff lacks evidence

from which a jury could find she met the third element of a

prima facie case of negligent hiring. Thus, this court will

grant RSBE’s motion for summary judgment as to Plaintiff’s

negligent hiring claim.

C. Plaintiff’s Motion for Summary Judgment

For the reasons previously stated, this court will grant

Defendant Cato’s motion for summary judgment and RSBE’s motion

for summary judgment. Both Defendants will be dismissed from

this action. Additionally, this court will deny Plaintiff’s

cross-motion for summary judgment. (Doc. 30.)

On a motion for summary judgment, the court is to resolve

all factual disputes in the non-movant’s favor. Rossignol, 316

F.3d at 523. Plaintiff seeks summary judgment against Cato for

an alleged deprivation of her Fourth Amendment rights. (Pl.’s

MSJ Br. (Doc. 31) at 7.) In doing so, she contends she has met

the elements for false arrest and malicious prosecution. (Id.

at 7–11.) However, as this court previously noted, Cato had

probable cause to arrest Plaintiff. (See supra Section IV.A.1.)

Therefore, Plaintiff’s claims for false arrest and malicious

prosecution fail as a matter of law.

Plaintiff also moves for summary judgment against RSBE on

her Monell claim. (See Pl.’s MSJ Br. (Doc. 31) at 11–22.) This

argument also fails. This court has already determined that

Plaintiff has failed to provide evidence that her constitutional

rights were violated during her arrest. (See supra Section

IV.B.1.) Therefore, Plaintiff’s motion for partial summary

judgment, (Doc. 30), will be denied.

V. CONCLUSION

This court will grant Cato’s motion for summary judgment.

(Doc. 28.) This court finds that Cato’s motion should be granted

because he had probable cause to arrest Plaintiff, so Plaintiff’s

Section 1983 claims for false arrest and malicious prosecution

must fail. Additionally, since Cato had probable cause and used

only the force necessary to place Plaintiff in handcuffs,

Plaintiff’s Section 1983 claim for excessive force fails.

This court will also grant Defendant Rowan-Salisbury Board

of Education’s Motion for Summary Judgment. (Doc. 34.)

Plaintiff’s Monell claim fails because she has not proven her

constitutional rights were violated, Plaintiff’s Title VI claim

fails because she lacks standing, and Plaintiff’s negligent

hiring claim fails because she failed to come forward with

evidence on one of the elements.

Finally, this court will deny Plaintiff’s cross-motion for

summary judgment, (Doc. 30), because Cato had probable cause to

arrest Plaintiff, and she has not demonstrated her constitutional

rights were violated.

For the foregoing reasons,

IT IS THEREFORE ORDERED that the Motion for Summary Judgment

of the Defendant Deputy Tommie Cato, (Doc. 28), is GRANTED.

Defendant Tommie Cato is DISMISSED from this action.

IT IS FURTHER ORDERED that Defendant Rowan-Salisbury Board

of Education’s Motion for Summary Judgment, (Doc. 34), is

GRANTED. Defendant Rowan-Salisbury Board of Education is

DISMISSED from this action.

IT IS FURTHER ORDERED that Plaintiff’s motion for partial

summary judgment, (Doc. 30), is DENIED.

This the 29th day of March, 2023.

Union 1. Olen. Me

United States District J e

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