# MCDOUGALD v. KERSEY

> District Court, M.D. North Carolina · November 21, 2022

URL: https://www.frixlaw.com/law-library/cases/10254352

## Case

- **Court:** District Court, M.D. North Carolina
- **Decided:** November 21, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10254352

## How later opinions describe it (automated extraction)

- noting that “whether state law authorized” a search or seizure is “irrelevant” in the Fourth Amendment analysis

## Opinion text

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.
20

“[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
21

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
24

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
27

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

31

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10254352. Public record. Not legal advice.