MCDOUGALD v. KERSEY

IN THE UNITED STATES DISTRICT COURT on

FOR THE MIDDLE DISTRICT OF NORTH CAROLIN i F IL ED

BARBARA MCDOUGALD, ) | NOV 2 □ 029

:

Plaintiff, ) ® oN

Vv. 1:20-CV-666 7] Ig 7

SHERIFF RALPH E. KERSEY, et al.,

Defendants. □

MEMORANDUM OPINION AND ORDER

Catherine C. Eagles, District Judge.

In 2017, defendant Jessica Sadovnikov,' a detective in the Scotland County

Sheriff’s Office, sought and obtained warrants for the arrest of plaintiff Barbara

McDougald for financial crimes Ms. McDougald allegedly committed against her mother

years earlier while in charge of her mother’s finances. These charges were eventually

dismissed. Ms. McDougald now brings suit against Detective Sadovnikov, Sheriff Ralph

Kersey, and Fidelity and Deposit Company of Maryland, alleging that she was arrested . .

without probable cause and asserting claims under state and federal law. The Magistrate

Judge recommended granting the defendants’ motions for summary judgment, primarily

because he found there was probable cause for Ms. McDougald’s arrest.

Ms. McDougald objects to the recommendation. Her evidence supports the

inference that that Detective Sadovnikov provided incomplete and misleading

1 Detective Jessica Sadovnikov has changed her name to Jessica Impson, see Doc. 29-19 at

{ 1, and some of the evidence refers to her by this name. For clarity and consistency, the Court

refers to her as Detective Sadovnikov.

information to the state court magistrate who issued the arrest warrants and that any

reasonable officer would have doubted the truth of the largely uncorroborated factual

assertions made by Ms. McDougald’s mother, who had been declared incompetent and

had dementia. Because her evidence raises disputed questions of material fact, summary

judgment on Ms. McDougald’s claims against Detective Sadovnikov based on unlawful

seizure and malicious prosecution is not appropriate.

For reasons explained infra, the Court will grant the summary judgment motion as

to Ms. McDougald’s substantive and procedural due process claim against Detective

Sadovnikov and her Mone// claim against Sheriff Kersey. Summary judgment is denied

as to all other claims.

I. Overview?

In January 2013, after a mental and physical decline, Jessie Terry moved in with

her daughter, the plaintiff Ms. McDougald, Doc. 35-1 at 9 3, 14-16, and executed a

power of attorney authorizing her daughter to act on her behalf. Id. at FJ 17-18; Doc. 29-

2. A week later, a physician in Virginia found Ms. Terry to be mentally incompetent.

Doc. 29-3. For the next two years, Ms. McDougald assisted her mother physically, with

living arrangements, and with financial management. Doc. 35-1 at ff 20-29.

In September 2015, Ms. Terry and Beulah Ross came to the Sheriffs office and

spoke with Detective Jessica Sadovnikov; they accused Ms. McDougald of stealing from

? The facts are stated in the light most favorable to the plaintiff, the non-moving party. They

are outlined in overview form here and in more detail elsewhere in this order as necessary for

resolution of a particular issue.

Ms. Terry and stealing her identity. Doc. 35-13 at 3. Detective Sadovnikov began an

investigation. /d. at 4.

After Detective Sadovnikov left the Sherif? s Office in November 2015, Doc. 29-

19 at { 16, Detective Annette Gooselin talked with Ms. Terry, Doc. 29-14 at J 12, and did

more work; she did not seek criminal charges. Doc. 35-13 at 5-6. Less than a month

after Detective Sadovnikov returned to the Sheriff's Office and after minimal additional

investigation, Doc. 29-19 at § 18; Doc. 35-13 at 6, she sought and obtained arrest

warrants for Ms. McDougald on July 21, 2017. Doc. 35-13 at 7; Docs. 29-10, 29-11, 29-

12, 29-13. After obtaining more additional financial records, she sought and obtained

additional warrants on July 28, 2017. Doc, 29-19 at § 28; Docs. 29-16, 29-17, 29-18.

Ms. McDougald was arrested in Virginia at a medical appointment. Doc. 35-1 at

Ms. McDougald remained in custody for several days in Virginia and then for

several more days in the Scotland County jail. /d. at {7 60-61. After eight days, she was

released on an unsecured bond. /d. at (62. She was later indicted, Doc. 29-22, but all

charges against her were dismissed in early 2020. Doc. 35-1 at 4] 64.

Ms. McDougald has sued defendants Detective Sadovnikov, Sheriff Ralph Kersey,

and Fidelity and Deposit Company of Maryland. Against Detective Sadovnikov, she

asserts § 1983 claims for unlawful search and seizure, malicious prosecution, and due

process violations, along with state law claims for trespass by a public officer, malicious

prosecution, abuse of process, intentional infliction of emotional distress, and a claim

upon bond. Against Sheriff Kersey, Ms. McDougald asserts a Monell claim, a claim of

intentional infliction of emotional distress, and a claim upon bond.

The defendants each moved for summary judgment. Docs. 29, 31. The United

States Magistrate Judge recommended granting the motions. Doc. 56. Ms. McDougald

and the defendants have filed objections to the recommendation. Docs. 59-60.

IJ. Legal Standard

District courts review de novo the portions of a Magistrate Judge’s

recommendation to which the parties object. See 28 U.S.C. § 636(b)(1); United States v.

De Leon-Ramirez, 925 F.3d 177, 181 (4th Cir. 2019). Otherwise, courts review for clear

error. Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005).

A court “shall grant summary judgment if the movant shows that 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). In analyzing a summary judgment motion, courts “tak[e]

the evidence and all reasonable inferences drawn therefrom in the light most favorable to

the nonmoving party.” Henry v. Purnell, 652 F.3d 524, 531 (4th Cir. 2011) (en banc).

But the nonmoving party must “go beyond the pleadings” and must by his “own

affidavits, or by the depositions, answers to interrogatories, and admissions on file,

designate specific facts showing that there is a genuine issue for trial.” Cefotex Corp. v.

Catrett, 477 U.S. 317, 324 (1986) (cleaned up).

Il. Analysis

A. Federal Claims

1. Unlawful Seizure Claim — Detective Sadovnikov

A person seized by law enforcement “pursuant to legal process that was not

supported by probable cause” and whose criminal proceedings terminate in her favor has

a valid claim that the seizure violates the Fourth Amendment. Miller v. Prince George □□

Cnty., 475 F.3d 621, 627 (4th Cir. 2007). It is undisputed that the criminal proceedings

here were terminated in Ms. McDougald’s favor. At issue, then, is whether Ms.

McDougald has offered sufficient evidence to show that Detective Sadovnikov

deliberately or with a reckless disregard for the truth made material false statements in

her testimony to the issuing magistrate, Franks v. Delaware, 438 U.S. 154, 171 (1978), or

omitted from her sworn testimony “material facts with the intent to make, or with

reckless disregard of whether they thereby made,” her testimony “misleading.” Miller,

475 F.3d at 627 (cleaned up).

“Reckless disregard can be established by evidence that an officer acted with a

high degree of awareness of a statement’s probable falsity.” Jd. (cleaned up). This

means that the officer, in light of all the evidence available to him, “must have

entertained serious doubts as to the truth of his statements or had obvious reasons to

doubt the accuracy of the information he reported.” Jd. (quoting Wilson v. Russo, 212

F.3d 781, 788 (3d Cir. 2000)). “With respect to omissions, reckless disregard can be

established by evidence that a police officer failed to inform the judicial officer of facts”

she knew “would negate probable cause.” Miller, 475 F.3d at 627 (cleaned up).

Negligence or innocent mistake does not provide a basis for a constitutional violation. Jd.

at 627-28.

Here, Detective Sadovnikov sought and received warrants on two different

occasions. On neither occasion did she provide the magistrate with a written affidavit;

instead, as allowed by North Carolina law, she gave her testimony orally. See N.C. Gen.

Stat. § 15A-304(d)(2). So there is no contemporaneous documentary evidence of what

Detective Sadovnikov told the magistrate who issued the warrant.

The only direct evidence comes from Detective Sadovnikov’s declaration and

testimony given in this case, some years after the events. There is also indirect evidence

from police reports written around the time and from an affidavit signed by Detective

Sadovnikov a few days after she obtained the first set of warrants and which she provided

to a Superior Court Judge for the purpose of obtaining financial records. Doc. 29-14.

If one only looks at Detective Sadovnikov’s post-hoc declaration, Doc. 29-19, then

there was, as the Magistrate Judge accurately found, probable cause for the arrest

warrant. Ms. McDougald does not seriously dispute this point.

But that point begs the actual questions presented here: Did Detective Sadovnikov

provide accurate and complete information to the magistrate, or did she offer testimony

containing material misrepresentations and omissions made deliberately or with reckless

disregard for whether they made her testimony misleading? See Miller, 475 F.3d at 629.

And would a reasonable officer knowing what Detective Sadovnikov knew “have

entertained serious doubts” as to the accuracy of the information from Ms. Terry and Ms.

Ross, such that if she had reported the reasons for those doubts to the magistrate there

would have been no probable cause? Jd. at 627-29.

On these points, even by Detective Sadovnikov’s account, almost all of the

evidence Detective Sadovnikov had that implicated Ms. McDougald in wrongdoing came

from Ms. Terry, whose ability to be an accurate witness was highly questionable. And,

more importantly, the evidence as summarized in the Recommendation was not, as Ms.

McDougald accurately points out, viewed in the light most favorable to the plaintiff.

According to Detective Sadovnikov, Ms. Ross, who was present with Ms. Terry at

the Sheriff's Office, did not purport to have firsthand knowledge of Ms. McDougald’s

actions. Detective Sadovnikov made no effort to obtain information from Ms.

McDougald before seeking the arrest warrants, Doc. 35-1 at 7 51, and she spoke with Ms.

Terry’s son, Robert Terry, about Ms. Terry’s financial affairs only briefly and only after

seeking the first set of warrants. Doc. 29-19 at § 24-25. A more experienced officer who

took over the investigation after Detective Sadovnikov left the Sheriff's Office in 2015

did not find the evidence sufficient to seek warrants. Doc. 35-13 at 5—6; Doc. 29-19 at

q 16; Doc. 35-40 at 12 (noting that after Detective Sadovnikov left, the case was assigned

to “a different detective” who mostly did financial crimes).

3 While the Magistrate Judge was correct in noting that courts generally do not make

credibility determinations when ruling on summary judgment motions, Doc. 56 at 28 n.4, that

does not mean that evidence undermining the credibility of a witness is absolutely and always

irrelevant at summary judgment. “[W]hen questions about the credibility of key witnesses loom

large and the evidence could permit the trier-of-fact to treat their testimony with skeptical

scrutiny,” summary judgment should be denied. Jacobs v. N.C. Admin, Off. of the Cts., 780 F.3d

562, 576-77 (4th Cir. 2015) (cleaned up) (quoting Deville v. Marcantel, 567 F.3d 156, 165 (Sth

Cir. 2009) (per curiam)); see also Deville, 567 F.3d at 165 (considering a false arrest claim and

holding that a defendant’s “uncontradicted testimony . . . could establish probable cause for the

arrest,” but summary judgment was improper when the plaintiffs “provided evidence that would

allow the jury to disbelieve” the defendant’s testimony). The court must still consider evidence

that goes to credibility and look at it in the light most favorable to the nonmovants when

deciding if there is any genuine issue of material fact. See J&J Sports Prods., Inc. v. Hernandez,

No. 11-CV-749, 2013 WL 5937909, at *4 (M.D.N.C. Nov, 5, 2013); cf Magill v. Gulf & W.

Indus., Inc., 736 F.2d 976, 979 (4th Cir. 1984) (“Summary judgment also is inappropriate if an

issue depends upon the credibility of witnesses, because such credibility can best be determined

after the trier of fact observes the witnesses’ demeanor.”).

There is also substantial evidence that Detective Sadovnikov knew Ms. Terry

remained cognitively impaired to a significant degree and either hid or deliberately

understated that information to the magistrate when she sought arrest warrants. For

example, in the police reports from the time, Detective Sadovnikov documented Ms.

Terry’s 2015 acknowledgement that she remained unable to handle her financial affairs

on her own, Doc. 35-13 at 3, yet the written affidavit she submitted to a Superior Court

Judge in between the two dates she sought arrest warrants mentioned only that Ms. Terry

had been incompetent in 2013, Doc. 29-14 at § 2, and made no mention of any ongoing

memory or cognitive difficulties. See generally id. Someone reading that affidavit

would not suspect that Ms. Terry had been unable to handle her financial affairs herself

during the two-year period she lived with Ms. McDougald. And contrary to Detective

Sadovnikov’s testimony now that in 2017 Ms. Terry “showed no signs of hesitation or

confusion as she related what had happened,” Doc. 29-19 at § 4, two witnesses have

testified that around this exact time Ms. Terry had severe problems answering even basic

questions. Doc. 35-1 at 45 (noting Ms. Terry’s confusion during a court hearing around

this time); Doc. 35-2 at | 19 (same); Doc. 35-1 at ] 42 (noting Ms. Terry had “severe

dementia” in 2015).‘ If those witnesses are believed at trial, a reasonable jury could

4 There is similar evidence undermining Detective Sadovnikov’s assertion that Ms. Ross did

not participate significantly in the interview. See Doc. 29-19 at 14. Witnesses have testified to

Ms. Ross’s tendency to answer questions for Ms. Terry and to assert as fact things related to Ms.

McDougald’s management of Ms. Terry’s financial affairs about which Ms. Ross had no

knowledge. See Doc. 35-1 at 945; Doc. 35-2 at § 19. There is also evidence, mentioned injra,

that Wells Fargo representatives told Detective Sadovnikov that Ms. Terry was confused about

her reverse mortgage.

§

conclude that Detective Sadovnikov falsely told the magistrate that Ms. Terry appeared

cognitively intact and that if she had accurately disclosed Ms. Terry’s degree of

impairment the magistrate would not have issued warrants for arrest based almost wholly

on Ms. Terry’s reports.

To the extent Detective Sadovnikov had documentary evidence tending to support

charges against Ms. McDougald at the time she sought either set of warrants, it was

weak. It is not entirely clear what financial records she obtained before seeking the

warrants versus after, but those records filed as evidence here reflect transactions, not

necessarily who made the transactions. See Doc. 29-4; Doc. 29-5. And they say nothing

about whether the transactions were undertaken for criminal purposes, as opposed to

meeting Ms. Terry’s needs and paying her debts. Detective Sadovnikov reports receiving

additional records from Wells Fargo and relying on these records in seeking the second

set of arrest warrants, Doc. 29-19 at § 28, but we only have her word for what these

records said.

The evidence further supports the inference that Detective Sadovnikov

exaggerated or misrepresented information when giving her probable cause testimony, as

she did in the affidavit to the Superior Court Judge submitted to obtain copies of financial

records. In that affidavit, for example, Detective Sadovnikov quotes a Wells Fargo

representative as saying that Ms. McDougald “took out a reverse mortgage on Terry’s

residence sometime in 2006,” Doc. 29-14 at 10, but the Wells Fargo record itself, which

Detective Sadovnikov appears to have had in her police file, shows that Ms. Terry’s

claims that she did not know about the reverse mortgage were unfounded. See Doc. 29-8

at 2 (“Contact with Ms. Terry throughout the life of the loan indicates that she was very

well aware that she has a reverse mortgage on her property.”). Detective Sadovnikov told

the Superior Court Judge that “investigators from Wells Fargo .. . have substantiated the

fraud and identity theft allegations against McDougald,” Doc. 29-14 at | 6, but a review

of the Wells Fargo documentation is significantly less incriminating. We only have

Detective Sadovnikov’s word for what the Wells Fargo investigator allegedly told her

beyond what is in the Wells Fargo reports. A reasonable jury could find that Detective

Sadovnikov similarly, or perhaps even to a larger extent, exaggerated the evidence

against Ms. McDougald when she testified in front of the magistrate to establish probable

cause the first time.

Aside from exaggerations, Ms. McDougald has also pointed to inaccuracies and

inconsistencies in the warrants, Docs. 29-10, 29-11, 29-12, 29-13, 29-16, 29-17, 29-18,

Detective Sadovnikov’s motion to compel disclosure of financial records, Doc. 29-14,

Detective Sadovnikov’s affidavit in support of a post-arrest search warrant, Doc. 35-27,

and her declaration, Doc. 29-19, all of which taken together further undermine Detective

Sadovnikov’s credibility. For example, several of the warrants stated that Ms. Terry had

been declared mentally incompetent or disabled by 2006 or 2007, see Docs. 29-10, 29-11,

29-12, but there is no evidence to support that claim, which appears to be false, and

Detective Sadovnikov had evidence that the incompetence finding came in January of

2013. Doc. 29-3. Detective Sadovnikov also inaccurately, or perhaps falsely, affirmed to

a Superior Court Judge that she had specialized training in financial crimes, Doc. 35-27 at

2, which she admits now that she did not. Doc. 35-40 at 6.

10

There is also evidence that Detective Sadovnikov lied to Ms. McDougald’s lawyer

soon after obtaining the warrants and before Ms. McDougald’s arrest. Detective

Sadovnikov learned during her investigation that Ms. McDougald was in Northern

Virginia recovering from breast cancer. Doc. 29-19 at 26. Detective Sadovnikov

contacted hospitals in Northern Virginia, sending them copies of the warrants if asked, in

an effort to locate Ms. McDougald. Doc. 35-13 at 8. Ms. McDougald learned of the

warrants and retained a lawyer. Doc. 35-1 at ¢ 58-59. That lawyer contacted Detective

Sadovnikov, and Detective Sadovnikov agreed to let Ms. McDougald turn herself in.

Doc. 42-1 at 9 7.° Despite this, when Detective Sadovnikov received a phone call from a

nurse at the Prince Williams County Medical Center, letting her know that Ms.

McDougald had arrived for her doctor’s appointment, Detective Sadovnikov told the

nurse to call “911 and to have the police respond.” Doc. 35-13 at 8. Ms. McDougald

was atrested at the hospital and spent several days in custody. Doc. 35-1 at 4] 60-62.

Finally, Ms. McDougald has offered substantial evidence that Detective

Sadovnikov has a history of making exaggerated and false claims in her work as a law

enforcement officer. See Doc. 1-2; Doc. 35-3 at | 37; Doc. 35-30; Does. 37-1, 37-2,

37-3, 37-4; Doc. 37-7 at 4; Doc. 37-8. This evidence undermines Detective □

> Ms. McDougald moved to file this additional evidence. Doc. 42. This evidence is relevant

to Detective Sadovnikov’s credibility and the defendants have not seriously contended otherwise.

See Doc. 44 (objecting to Ms. McDougald’s motion because she had no right to turn herself in).

The Court sustains Ms. McDougald’s objection, Doc. 60 at 23-24, to the Magistrate Judge’s

decision denying this motion. Doc. 56 at 27-28. As discussed supra page 7 note 2, the

Magistrate Judge misapplied the rule about a witness’s credibility. Ms. McDougald’s motion to

file additional evidence, Doc. 42, will be granted.

1]

Sadovnikov’s credibility. Her disciplinary history resulting from these acts of

misconduct further suggests a potential motive for her misconduct: an effort to impress

her current employer and overcome any doubts about her competence by “solving” a cold

case. Other evidence tends to support an inference that Detective Sadovnikov will

exaggerate and misstate facts when it makes her “look better.” See, e.g., Doc. 35-28

(May 1, 2018, email written by Detective Sadovnikoy exaggerating the number of

charges against Ms. McDougald and inaccurately or falsely stating Ms. McDougald faced

federal charges).

“Not every mix-up in the issuance of an arrest warrant .. . automatically

constitutes a constitutional violation for which a remedy may be sought.” Thompson v.

Prince William Cnty., 753 F.2d 363, 364 (4th Cir. 1985), Officers are not required to

“exhaust every potentially exculpatory lead or resolve every doubt about a suspect’s guilt

before probable cause is established.” Torchinsky v. Siwinski, 942 F.2d 257, 264 (4th Cir.

1991). However, the Supreme Court has made clear that police officers cannot

intentionally lie in warrant affidavits, nor can they recklessly exclude material

information. United States v. Leon, 468 U.S. 897, 922-23 (1984); Franks, 438 U.S. at

155-56. “An investigation need not be perfect, but an officer who intentionally or

recklessly puts lies before a magistrate, or hides facts from him, violates the Constitution

unless the untainted facts themselves provide probable cause.” Miller, 475 F.3d at

630-31.

Here, Ms. McDougald’s direct and circumstantial evidence shows or gives rise to

an inference that Detective Sadovnikov acted on largely uncorroborated claims by a

12

woman with significant cognitive impairments, that she failed to inform judicial officials

of those cognitive problems and overstated the evidence to judicial officials, and that she

had a history of making false assertions in her work as a law enforcement officer. Had

the magistrate been fully and accurately informed of the extent of the primary witness’s

memory issues, the undisputed fact that Ms. McDougald lived with Ms. Terry during

most of the relevant time and needed help with her finances which Ms. McDougald

provided, the ambivalence of the then-available documentary evidence as to whether that

help was appropriate or criminal, and the facts underlying the reverse mortgage, he would

not have found probable cause to issue the arrest warrants. In sum, viewing the evidence

in the light most favorable to Ms. McDougald, a reasonable jury could find that Ms.

McDougald’s arrest lacked probable cause and thus find for her on the unlawful seizure

claim.

Detective Sadovnikov contends that even if there is sufficient evidence for a jury

to find that she violated Ms. McDougald’s constitutional rights, she is entitled to

qualified immunity. Doc. 30 at 19-21. Government officials are protected from § 1983

liability by qualified immunity if their conduct does not violate clearly established

constitutional rights. Pearson v, Callahan, 555 U.S. 223, 231 (2009). To be clearly

established, “[t]he contours of the right must be sufficiently clear that a reasonable

official would understand that what he is doing violates that right.” Anderson v.

Creighton, 483 U.S. 635, 640 (1987). While a “case directly on point” is not required,

“existing precedent must have placed the . . . constitutional question beyond debate.”

13

Mullenix v. Luna, 377 U.S. 7, 12 (2015) (per curiam) (cleaned up). This is a question of

law. Hupp v. Cook, 931 F.3d 307, 317-18 (4th Cir. 2019).

As the Court just discussed, a reasonable jury could find that Detective

Sadovnikov violated Ms. McDougald’s Fourth Amendment rights. And those rights were

clearly established. “[T]he Supreme Court has long held that a police officer violates the

Fourth Amendment if, in order to obtain a warrant, he deliberately or with reckless

disregard for the truth makes material false statements or omits material facts.” Miller,

475 F.3d at 631 (cleaned up) (collecting cases).

Despite this, Detective Sadovnikov suggests that she is entitled to qualified

immunity because the magistrate found probable cause. See Doc. 30 at 20. A neutral

magistrate’s finding of probable cause does “weigh[] heavily toward a finding that [the

defendant] is immune from suit.” Hupp, 931 F.3d at 324. But applying that precept

when the facts support an inference that the probable cause finding was based on

misrepresentations and inaccuracies by Detective Sadovnikov makes no sense. A

defendant “is not absolved from liability when the magistrate’s probable-cause finding is

predicated solely on a police officer’s false statements.” Hupp, 931 F.3d at 324 (cleaned

up); see also Manuel v. City of Joliet, 580-U.S. 357, 137 S. Ct. 911, 918 (2017).

There are disputed questions of material fact as to whether Detective Sadovnikov

told the magistrate judge the truth or recklessly hid significantly material facts from the

magistrate. The constitutional right to a warrant based on probable cause, not false or

misleading statements by a law enforcement officer, is well-established. Detective

14

Sadovnikov is not entitled to summary judgment on the Fourth Amendment unreasonable

seizure claim.

2. Malicious Prosecution Claim — Detective Sadovnikov

Ms. McDougald’s second claim for relief is a § 1983 claim for malicious

prosecution. Under federal common law, malicious prosecution requires “that (1) the

defendant ha[s] seized plaintiff pursuant to legal process that was not supported by

probable cause and (2) that the criminal proceedings have terminated in plaintiff's favor.”

Massey v. Ojaniit, 759 F.3d 343, 356 (4th Cir. 2014) (cleaned up); see Hupp v. Cook, 931

F.3d 307, 324 (4th Cir. 2019).

As previously discussed, a reasonable jury could find that the arrest warrants for

Ms. McDougald were not supported by probable cause. There is no dispute that Ms.

McDougald was arrested and that the criminal proceedings terminated in her favor.

Detective Sadovnikov asserts that she is entitled to qualified immunity on this

claim because “there was no preexisting ‘clearly established’ case law prohibiting the

seeking of arrest warrants where a credible victim reports, at a minimum, financial

criminal activity that is corroborated by both public and private outside institutions.”

Doc, 30 at 20. But this argument ignores the disputes inherent in her characterization;

Ms. Terry was not necessarily credible, and the corroborating evidence was weak.

The Fourth Circuit has stated that in the context of a § 1983 malicious prosecution

claim that “the Fourth Amendment right to be seized only on probable cause” is “clearly

established.” Humbert v. Mayor & City Council of Balt. City, 866 F.3d 546, 561 (4th Cir,

2017). It is “clearly established that the Constitution [does] not permit a police officer

15

deliberately, or with reckless disregard for the truth, to make material misrepresentations

or omissions to seek a warrant that would otherwise be without probable cause.” Jd. at

562 (cleaned up). Summary judgment is denied on this claim.

3. Substantive and Procedural Due Process — Detective Sadovnikov

Ms. McDougald also brings a § 1983 claim against Detective Sadovnikov for

violations of substantive and procedural due process rights under the Fourteenth

Amendment. The Magistrate Judge recommended granting summary judgement on this"

claim because there was probable cause for the warrants even without any inaccurate

information Detective Sadovnikov may have supplied. Doc. 56 at 16. As this Court has

already explained, the Magistrate Judge was incorrect on this point. Nonetheless,

summary judgment for Detective Sadovnikov on this.claim is appropriate.

Because the charges against her were dismissed, and the alleged loss of liberty was

pretrial detention, Ms. McDougald cannot succeed on her due process claim. See

Albright v. Oliver, 510 U.S. 266, 273-74 (1994) (plurality opinion) (claims of pretrial

deprivations of liberty are properly brought under the Fourth Amendment, not substantive

due process); see also id. at 276 (Ginsburg, J., concurring); see also Manuel v. City of

Joliet, 580 US 357, 137 8. Ct. 911, 918 (2017) (noting five justices’ agreement); Wilkes

v. Young, 28 F.3d 1362, 1364 n.2 (4th Cir. 1994) (“[A]n individual alleging that he was

prosecuted in the absence of probable cause states no substantive due process claim.”).

And the Fourth Circuit has held that the “[flabrication of evidence alone is insufficient to

state a claim for a due process violation; a plaintiff must plead adequate facts to establish

that the loss of liberty—i.e., his conviction and subsequent incarceration—resulted from

16

the fabrication.” Massey v. Ojaniit, 759 F.3d 343, 354 (4th Cir. 2014). Courts

interpreting this language from Massey have persuasively held that plaintiffs cannot state

a claim for a due process violation when the charges against them were dismissed or they

were not convicted of any crime,° and when the alleged “loss of liberty” was pretrial

detention. See Osborne v. Georgiades, No. 14-CV-182, 2017 WL 39784835, at *6 (D.

Md. Sept. 11, 2017), aff'd, 778 F . App’x 220 (4th Cir 2019) (per curiam) (unpublished).

Summary judgment is granted on this claim.

4. Monell Claim — Sheriff Kersey

Ms. McDougald contends that Sheriff Kersey is liable to her under Monell v.

Department of Social Services, 436 U.S. 658 (1978), because Detective Sadovnikov

violated Ms. McDougald’s rights (1) “pursuant to an official adopted policy” of the

Scotland County Sheriff's Office, and (2) “pursuant to Sheriff Kersey’s failure to train

and screen his employees for hiring.” Doc. 38 at 13.

Sheriff Kersey asserts that this claim must fail “because there was no violation of

[Ms. McDougald’s] constitutional rights.” Doc. 32 at 19. The Magistrate Judge agreed.

Doc. 56 at 24. However, as previously explained, there is sufficient evidence for a jury to

find that Detective Sadovnikov violated Ms. McDougald’s Fourth Amendment rights.

Nonetheless, Ms. McDougald’s Mone// claim against Sheriff Kersey will be

dismissed. The bulk of her claim against Sheriff Kersey is based on Detective

6 See Willis v. Ruff, No. 20-CT-3202, 2022 WL 4181666, at *5 (E.D.N.C. Aug. 19, 2022),

Whitehurst v. Robb, No. 21-CV-76, 2022 WL 2760464, at *4 (E.D.N.C. July 14, 2022), Norton

v. Tabron, No. 16-CV-56, 2016 WL 5867045, at *6 (E.D.N.C. Oct. 6, 2016), aff'd, 727 F. App’x

762 (4th Cir. 2018) (per curiam) (unpublished).

17

Sadovnikov’s violation of North Carolina law when seeking financial records. See Doc.

38 at 14-18. But a constitutional violation cannot be premised solely on a violation of

state law. See California v. Greenwood, 486 U.S. 35, 43 (1988) (“We have never

intimated, however, that whether or not a search is reasonable within the meaning of the

Fourth Amendment depends on the law of the particular State in which the search

occurs.”); Virginia v. Moore, 553 U.S. 164, 171 (2008) (noting that “whether state law

authorized” a search or seizure is “irrelevant” in the Fourth Amendment analysis). Even

with the generous assumption that Detective Sadovnikov’s search of her financial records

violated state law, and that this violation was pursuant to Sheriff Kersey’s policy, Ms.

McDougald has not shown that this method of conducting the search of her financial

records amounts to a constitutional violation.

Ms. McDougald also claims that Sheriff Kersey is liable under Monel/ based on

his hiring and training of Detective Sadovnikov. But she has pointed to no particular

policy and has not identified any particular failure that specifically led to the misconduct

here. See Doc. 38 at 14 (contending that Sheriff Kersey “should have been aware” of

Detective Sadovnikov’s “checkered conduct” and was “deliberately indifferent”).

To survive summary judgment on these claims, Ms. McDougald must provide

evidence of more than “an instance of inadequate screening,” which, in this context, is

insufficient for a jury to find that Sheriff Kersey acted with “deliberate indifference” as to

how his hiring and training decisions could lead to a deprivation of constitutional rights.

See Bd. of Cnty. Comm’rs of Bryan Cnty. v. Brown, 520 U.S. 397, 411 (1967) (hereinafter

Bryan). Negligence is not enough. Daniels v. Williams, 474 U.S. 327, 335-36 (1986).

18

Sheriff Kersey did not call any of Detective Sadovnikov’s references before hiring

her. Doc. 35-41 at 8. Ms. McDougald’s expert testified that Detective Sadovnikov’s

record shows she was not competent to be a sworn law enforcement officer. Doc. 35-3 at

7417. But Sheriff Kersey’s office did run a background and he reviewed Detective

Sadovnikov’s personal history statement with her, page by page, asking her about some

of her past misconduct and discipline. See id. at 5-7,

Even viewing the facts in the light most favorable to Ms. McDougald, this

evidence shows a disagreement about competence, not deliberate indifference to

competence. “[A]n instance of inadequate screening is not enough to establish deliberate

indifference.” Bryan, 520 U.S. at 411 (cleaned up). “Only where adequate scrutiny of an

applicant's background would lead a reasonable policymaker to conclude that the plainly

obvious consequence of the decision to hire the applicant would be the deprivation of a

third party’s federally protected right can the official’s failure to adequately scrutinize the

applicant’s background constitute ‘deliberate tndifference.’” Jd. ‘‘The mere presence of

red flags on an application is not enough,” and more must be shown than “a mere failure

to follow every potential discrepancy on an application.” Tarashuk v. Orangeburg Cniy.,

No. 19-CV-2495, 2022 WL 867291, at *4 (D.S.C. Mar. 23, 2022); see also id. (“Section

1983 cannot be deployed to put routine hiring decisions by official actors under a

constitutional microscope.”).

Nor can Ms. McDougald show that Sheriff Kersey acted with deliberate

indifference in training Detective Sadovnikov. Inadequate training “may serve as the

basis for § 1983 liability only where the failure to train amounts to deliberate indifference

19

to the rights of persons with whom the police come into contact.” City of Canton, v.

Harris, 489 U.S. 378, 388 (1989).

Ms. McDougald claims that Sheriff Kersey acted with deliberate indifference in

failing to train his officers in “Fourth Amendment rights,” “investigating financial

crimes, elder abuses, or determining jurisdiction for crimes.” Doc. 38 at 20. But the

evidence in the record does not support this contention. While Sheriff Kersey did not

require Detective Sadovnikov “to receive any additional training prior to accepting

employment with the Scotland County Sheriffs office,” Doc. 35-41 at 8, he did require

that she have completed the Basic Law Enforcement Training Program curriculum from

the North Carolina Sheriffs’ Education and Training Standards Commission. Doc. 32-8

at 497. This curriculum currently involves over 600 hours of instruction, and

individuals must pass a comprehensive exam to complete the program. fd. Additionally,

all Scotland County Sheriff Deputies are required to undergo at least 30 hours of training

each year, also designed and directed by the Sheriffs’ Education and Training Standards

Commission. fd. at 4 { 8.

Detective Sadovnikov met these training requirements while employed by Sheriff

Kersey. Jd. at5 10. The fact that she was not trained specifically “in investigating

financial crimes, elder abuses, or determining jurisdiction for crimes,” see Doc. 38 at 20

(citing Doc. 35-40 at 42), is not enough to show deliberate indifference.

It is not enough to prove that Ms. McDougald’s arrest “could have been avoided

if’ Detective Sadovnikov “had better or more training,” because “[s]uch a claim could be

made about almost any encounter resulting in injury.” City of Canton, 489 U.S. at 391.

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“[A]dequately trained officers occasionally make mistakes; the fact that they do says little

about the training program or the legal basis for holding” Sheriff Kersey liable. Id.

The facts in the record may support an inference that Detective Sadovnikovy made

mistakes, that she was not a good officer, that she acted unreasonably or negligently in

her investigation of Ms. McDougald, or that she intentionally or recklessly misled the

magistrate when seeking arrest warrants. But this is not enough to find that Sheriff

Kersey was deliberately indifferent to Ms. McDougald’s constitutional rights when hiring

or training Detective Sadovnikov. For these reasons, summary judgment is granted on

Ms. McDougald’s Moneil/ claim against Sheriff Kersey.

B. State Law Claims

1. Public Official Immunity

The defendants assert that public official immunity bars all of Ms. McDougald’s

state law tort claims. “The doctrine of public official immunity is a derivative form of

governmental immunity.” Hart v. Brienza, 246 N.C. App. 426, 431, 784 S.E.2d 211, 215

(2016) (cleaned up). It “shields public officials from personal liability for claims arising

from discretionary acts or acts constituting mere negligence, by virtue of their office, and

within the scope of their governmental duties.” Bartley v. City of High Point, 381 N.C.

287, 294, 873 S.E.2d 525, 533 (2022). But “[a]n individual will not enjoy the

immunity’s protections if his action was (1) outside the scope of official authority, (2)

done with malice, or (3) corrupt.” Jd. at 533 (cleaned up).

“[A] malicious act is one which is (1) done wantonly, (2) contrary to the actor’s

duty, and (3) intended to be injurious to another.” /d. at 534 (cleaned up). “An act is

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wanton when it is done of wicked purpose or when done needlessly, manifesting a

reckless indifference to the rights of others.” Jd. (cleaned up). And “[g]ross violations of

generally accepted police practice and custom contributes to the finding that officers

acted contrary to their duty.” Jd. (cleaned up). ’

The North Carolina Supreme Court has held that to “survive a motion for

summary judgment based on public official immunity, a plaintiff must make a prima

facie showing that the defendant-official’s tortious conduct falls within one of the

immunity exceptions.” Jd. One of these is the “malice exception.” See id.; see also

Wilcox v. City of Asheville, 222 N.C. App. 285, 291, 730 S.E.2d 226, 232 (2012). If there

is a genuine dispute as to whether the officer acted with malice, summary judgment is

improper. See Bartley, 873 S.E.2d at 536-37.

There is a genuine issue of material fact as to whether Detective Sadovnikov acted

maliciously in submitting false and incomplete information to the magistrate who issued

the warrant. It cannot be denied that it is a gross violation of generally accepted police

practice to lie to a magistrate when seeking an arrest warrant, given that such acts are

well-established as unconstitutional. Beyond this, there is also evidence of actual malice.

7 The Magistrate Judge incorrectly stated that “[p]ublic official immunity does not shield

against an intentional tort.” Doc. 56 at 22. As noted by the defendants in their objection, Doc.

59, this is incorrect. The relevant distinction in this case is not whether the public official’s

action was an intentional tort or mere negligence. It is instead whether the act was done with

corruption or malice. See Bartley, 873 S.E.2d at 536-37. The Court sustains the defendants’

objection to this part of the Magistrate Judge’s recommendation, although it disagrees with the

defendants’ assertion that Ms. McDougald has failed to show malice. See infra page 23.

22

First, on the drive from Virginia to Scotland County Detective Sadovnikov refused

to stop smoking in the car even after Ms. McDougald told her she just left the hospital for

issues with her lungs and was having trouble breathing; Detective Sadovnikov also said

that she had seen to it that Ms. McDougald would be arrested in Virginia so she could

“take a road trip to Virginia and party.” See Doc. 35-1 at 61. Second, as summarized

earlier, Detective Sadovnikov made false statements to the Superior Court Judge who

issued the order for the bank records, see supra page 10, and to other law enforcement

officers about the scope of the charges Ms. McDougald faced. See Doc. 35-28. Finally,

she told Ms. McDougald’s lawyer that Ms. McDougald could turn herself in, Doc. 42-1 at

47, yet she very soon encouraged a Virginia health care provider to call law enforcement

to arrest Ms. McDougald at a doctor’s appointment for cancer. Doc. 35-13 at 8.

The evidence supports the inference that Detective Sadovnikov was acting

maliciously toward Ms. McDougald. Because there is a genuine dispute of material fact

as to whether Detective Sadovnikov acted maliciously, public official immunity does not

protect Detective Sadovnikov from a trial on the state law tort claims. See Bartley, 873

S.E.2d at 534.

2. Trespass by a Public Officer Claim — Detective Sadovnikov

Ms. McDougald has brought a state law claim for trespass by a public officer

against Detective Sadovnikov. Under North Carolina law, plaintiffs may bring claims

against public officers for trespass “under color of his office and constituting a wrongful

invasion of the rights of third persons by force shown or imputed.” Fowler v. Valencourt,

334 N.C. 345, 349, 435 §.E.2d 530, 532 (1993). Claims of false arrest and false

23

imprisonment against a public officer acting under the color of his or her office are

trespass by a public officer claims. See id. at 348-50 (holding that false arrest and

imprisonment claims brought against a police officer were trespass by a public officer

claims, even if not phrased that way by the plaintiff, in part because trespass “includes

assault, battery, false imprisonment, and false arrest’).

As Detective Sadovnikov accurately contends, the existence of probable cause

would bar these claims. Adams v. City of Raleigh, 245 N.C. App. 330, 335, 782 S.E.2d

108, 113 (2016); see also Moore v. Evans, 124.N.C. App. 35, 42-43, 476 S.E.2d 415,

421-22 (1996) (explaining that one element of the state claim of false imprisonment “‘is

the absence of probable cause”); Thomas v. Sellers, 142 N.C. App. 310, 315-16, 542

S.E.2d 283, 287 (2001). But, as previously discussed, a reasonable jury could find that

there was not probable cause for Ms. McDougald’s arrest.

3. Malicious Prosecution — Detective Sadovnikov

In addition to her federal claim of malicious prosecution, Ms. McDougald asserts a

state law malicious prosecution claim against Detective Sadovnikov. To establish

malicious prosecution under North Carolina state law, four elements must be met: “(1)

the defendant initiated the earlier proceeding; (2) malice on the part of the defendant in

doing so; (3) lack of probable cause for the initiation of the earlier proceeding; and (4)

termination of the earlier proceeding in favor of the plaintiff” Nguyen v. Burgerbusters,

Inc., 182 N.C. App. 447, 450, 642 S.E.2d 502, 505 (2007) (cleaned up).

Taking the evidence in the light most favorable to Ms. McDougald, all of these

elements are met here. It is undisputed that Detective Sadovnikov initiated the

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proceeding against Ms. McDougald. The Court has already discussed that a reasonable

jury could find that (1) Detective Sadovnikov acted with malice, supra page 23, and (2)

there was a lack of probable cause to arrest Ms. McDougald. Supra pages 7-13. Lastly,

it is undisputed that the proceedings terminated in favor of the plaintiff. For these

reasons, a reasonable jury could find for Ms. McDougald on this claim.

4. Abuse of Process — Detective Sadovnikov

Ms. McDougald’s third state law claim is for abuse of process. “Abuse of process

is the misapplication of civil or criminal process to accomplish some purpose not

warranted or commanded by the process.” Pinewood Homes, Inc. v. Harris, 184 N.C.

App. 597, 602, 646 S.E.2d 826, 831 (2007) (cleaned up). An abuse of process claim

requires the plaintiff to show “(1) that the defendant had an ulterior motive to achieve a

collateral purpose not within the normal scope of the process used, and (2) that the

defendant committed some act that is a malicious misuse or application of that process

after issuance to accomplish some purpose not warranted or commanded by the writ.”

Moch v. A.M. Pappas & Assoes., LLC, 251 N.C. App. 198, 210, 794 S.E.2d 898, 905

(2016) (cleaned up). “The ulterior motive requirement is satisfied when the plaintiff

alleges that the prior action was initiated by the defendant or used by him to achieve a

purpose not within the intended scope of the process used.” Hewes v. Wolfe, 74.N.C.

App. 610, 614, 330 S.E.2d 16, 19 (1985).

Beyond the probable cause arguments that the Court has already discussed at

length, the parties do not spend much time on this claim in their briefing. Ms.

McDougald contends that Detective Sadovnikov abused the arrest warrant process with

25

the ulterior motive of improving her reputation in the Sheriff's Office. Ms. McDougald

has offered evidence of Detective Sadovnikov’s past misconduct and resulting

disciplinary history, much of which was recent. Supra page 12. As discussed, this

evidence supports an inference that Detective Sadovnikov wanted to impress her current

employer and overcome any doubts about her competence by “solving” a cold case. Jd.

Other evidence tends to support an inference that Detective Sadovnikov will manipulate

facts and evidence when it makes her “look better.” See, e.g., Doc. 35-28 (May 1, 2018

email written by Detective Sadovnikov exaggerating the number of charges against Ms.

McDougald and inaccurately or falsely stating Ms. McDougald faced federal charges).

There is a genuine dispute of material fact about whether Detective Sadovnikov had an

ulterior motive for seeking arrest warrants for Ms. McDougald. Summary judgment is

denied on this claim.

5. Intentional Infliction of Emotional Distress — Detective Sadovnikov

and Sheriff Kersey

Ms. McDougald brings a claim of intentional infliction of emotional distress

against Detective Sadovnikov and Sheriff Kersey. She contends that Detective

8 Ms. McDougald also alleges that Detective Sadovnikov’s ulterior motive was to “to arrest a

person without probable cause and to allow Sadovnikov to search plaintiff after the arrest was

made,” and to “subvert the safeguards of the search warrant process and procedure.” Doc. 1 at

4114. She has not addressed these theories in the briefing and has not pointed to any evidence

supporting these theories; the Court treats these contentions as abandoned. See Doc. 38 at 43-44

(arguing that the ulterior motive was “to improve her reputation in the Sheriff's Office”); see

also Doc. 56 at 17 (Magistrate Judge’s recommendation noting that Ms. McDougald’s proffered

ulterior motive was “to improve her reputation in the Sheriff's Office”). In the alternative, there

is no evidence beyond the evidence of the violation itself to support her theory.

26

Sadovnikov is liable for the tort directly, and that Sheriff Kersey is vicariously liable, as

her employer.

“The essential elements of a claim for intentional infliction of emotional distress

are (1) extreme and outrageous conduct by the defendant (2) which is intended to and

does in fact cause (3) severe emotional distress.” Holloway v. Wachovia Bank & Tr. Co.,

N.A., 339 N.C. 338, 351, 452 S.E.2d 233, 240 (1994) (cleaned up). Extreme and

outrageous conduct is which “shocks the conscience or exceeds all bounds of decency

tolerated by society” and “must be so outrageous in character, and so extreme in degree,

to be regarded as atrocious, and utterly intolerable in a civilized community.” Russ v.

Causey, 732 F. Supp. 2d 589, 607 (E.D.N.C. 2010) (cleaned up), aff'd, 468 F. App’x 267

(4th Cir. 2012) (unpublished). An act that is performed with “reckless indifference to the

likelihood that emotional distress may result” is sufficient to satisfy the intent

requirement. Dickens v. Puryear, 302 N.C. 437, 449, 276 S.E.2d 325, 333 (1981).

The Magistrate Judge rejected this claim because he found probable cause for Ms.

McDougald’s arrest. See Doc. 56 at 18-19. But the evidence on this point is disputed,

for reasons already explained.

The Magistrate Judge also concluded that even absent probable cause, Ms.

McDougald’s evidence was insufficient to raise a genuine dispute as to whether Detective

Sadovnikov committed this tort. /d. at 19. But, viewing the evidence in the light most

favorable to Ms. McDougald, the Court reaches the opposite conclusion.

Beyond the submission of false, incomplete, and misleading information to the

magistrate, there is evidence of malice, as previously discussed. A jury could conclude

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that a law enforcement officer who (1) knew that an arrest warrant was based on false or

incomplete information, (2) repeatedly exaggerated the evidence and other matters

relevant to the accused, and (3) agreed to let the accused turn herself in but then

encouraged a health care provider to “call 911 and have the police respond” when the

accused was receiving medical care has acted outrageously. That same evidence

combined with the evidence about Detective Sadovnikov’s behavior on the car ride with

Ms. McDougald back to North Carolina, Doc. 35-1 at { 61, supports an inference of

intent to cause severe emotional distress.

There is also evidence that Ms. McDougald had suffered severe emotional

distress. Beyond the common-sense inference that a person with no criminal history who

is wrongfully accused of serious financial crimes and held in various jails for over a week

would suffer severe emotional distress, Ms. McDougald has pointed to her own testimony

about the resulting trauma, Doc. 35-1 at 61, 63, Doc. 64-2 at 5-6, as well as evidence

from her therapist.? Doc. 64-1 at 2.

Detective Sadovnikov’s motion for summary judgment is denied on this claim.

° Ms. McDougald recently moved to supplement the record to include this diagnosis and

treatment plan and related deposition testimony in support of her response to the defendants’

motion for summary judgment. Doc. 64. The Court grants the motion. See Fed. R. Civ. P.

56(e)(1) (“Ifa party fails to properly support an assertion of fact, ... the court may... give an

opportunity to properly support or address the fact.”); Fed. R. Civ. P. 72(b)(3) (when reviewing a

Magistrate Judge’s recommendation de novo, a District Court Judge may “receive further

evidence”). The evidence is relevant to Ms. McDougald’s intentional infliction of emotional

distress claim. The therapy record, Doc. 64-1, was produced in discovery, and Ms. McDougald

was questioned about the record and her emotional distress at her deposition. Doc. 64-2. The

defendants are not unfairly prejudiced by consideration of this evidence now, as they have been

on notice of this evidence for some time and as they only challenged this element in oral

argument, not in the initial briefing.

28

Ms. McDougald’s claim against Sheriff Kersey for intentional infliction of

emotional distress is based on respondeat superior. “Under the doctrine of respondeat

superior, an employer may be held vicariously liable for the torts of its employee who is

acting within the scope of his employment.” Griffith v. Glen Wood Co., 184 N.C. App.

206, 215, 646 S.E.2d 550, 557 (2007). Sheriff Kersey contends that he cannot be held

liable for this tort because Detective Sadovnikov cannot be held liable. Doc. 32 at 19.

But as has been noted supra, a jury could find Detective Sadovnikov liable.

Sheriff Kersey makes no other argument why this claim against him should be

dismissed. His motion for summary judgment is denied on this claim.

6. Claim Upon Bond — Detective Sadovnikov and Sheriff Kersey

Finally, Ms. McDougald brings an action on official bond against Fidelity. Under

North Carolina Law, “[i]t is well settled that pursuant to the doctrine of sovereign

immunity, the State is immune from suit absent waiver of immunity” and that a “suit

against a public official in his official capacity is a suit against the State.” White v. Trew,

366 N.C. 360, 363, 736 S.E.2d 166, 168 (2013). While sheriffs are typically entitled to

governmental immunity, “a sheriff may ... waive governmental immunity by purchasing

a bond.” Sellers v. Rodriguez, 149 N.C. App. 619, 624, 561 S.E.2d 336, 339 (2002).

N.C. Gen. Stat. § 58-76-5 provides a plaintiff with a statutory claim against a

sheriff's official bond in addition to any state common law cause of action that a plaintiff

might have. Stafford v. Barker, 129 N.C. App. 576, 585, 502 8.E.2d 1, 6 (1998). To

bring a cause of action on an official bond under § 58-76-5, a plaintiff must allege that

the bonded officer “either intentionally engaged in misconduct and misbehavior while

29

performing his custodial duties, or that he acted negligently in the performance of those

duties, despite his duty to do otherwise.” Id.

Fidelity argued, and the Magistrate Judge agreed, Doc. 56 at 25, that the claim on

official bond should be dismissed because all of Ms. McDougald’s claims against Sheriff

Kersey failed on the merits. Because there are disputed questions of material fact as to

his liability for intentional infliction of emotional distress, and in the absence of any

alternative argument, the Court denies summary judgment on this claim.

IV. Conclusion

The defendants’ motions for summary judgment are granted in part and denied in

part as set out in this Order. The plaintiffs motion for leave to file additional evidence

and motion to supplement the record are both granted. Two motions to seal are still

pending in this Court, with separate orders forthcoming as time permits.

It is ORDERED that:

1. The Recommendation, Doc. 56, is NOT ADOPTED for the reasons stated

in this Order.

2. The defendant Jessica Sadovnikov’s motion for summary judgment, Doc.

29, is GRANTED as to the plaintiff Barbara McDougald’s due process

claims but DENIED as to all other claims.

3. The defendants Sheriff Kersey and Fidelity and Deposit Company of

Maryland’s motion for summary judgment, Doc. 31, is GRANTED as to

the plaintiff Barbara McDougald’s Moned/ claim but DENIED as to all

other claims.

30

4. The plaintiff Barbara McDougald’s motion to file additional evidence,

Doc. 42, is GRANTED.

5. The plaintiff Barbara McDougald’s motion to supplement the record, Doc.

64, is GRANTED.

This the 21st day of November, 2022.

(yo Me

UNITED STATES DISTRICT JUDGE

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