HOLMAN v. WIGGS

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

QUENTON D. HOLMAN, )

)

Plaintiff, )

)

v. ) 1:23cv618

)

A.T. WIGGS, et al., )

)

Defendants. )

MEMORANDUM OPINION AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

This case comes before the undersigned United States

Magistrate Judge for a recommendation on the “Motion to Dismiss”

(Docket Entry 16)1 (the “Motion”) filed by Kaleb Kluttz and Todd

Wiggs (collectively, the “Defendants”). For the reasons that

follow, the Court should deny the Motion.

BACKGROUND

Alleging that Defendants assaulted him during his arrest on

August 27, 2021, Quenton D. Holman (the “Plaintiff”) sued, among

others, an “Unidentified Duke Campus Police Officer” (Docket Entry

2 (the “Complaint”) at 4)2 and Defendants, agents with the North

Carolina Alcohol Law Enforcement Division (the “ALE”) (see id. at

1 For legibility reasons, this Opinion uses standardized

spelling, capitalization, and punctuation and omits the words

“Moving” and “the ALE” before “Defendants” in all quotations from

the parties’ materials.

2 Docket Entry page citations utilize the CM/ECF footer’s

pagination.

3), pursuant to 42 U.S.C. § 1983.3 (See id. at 1-9.) “Because

Plaintiff [wa]s a prisoner seeking redress from a governmental

entity or officer or employee of a governmental entity, this Court

ha[d] an obligation to review [his] Complaint” pursuant to 28

U.S.C. § 1915A. (Docket Entry 7 (the “Screening Order”) at 1

(brackets and internal quotation marks omitted).) In conducting

that review, the Court concluded “that Plaintiff’s individual

capacity claims against Defendants . . . and the Unidentified Duke

Campus Police Officer [should] be allowed to proceed, but that all

other claims [should] be dismissed.” (Id. at 7; see also Docket

Entry 13 at 3 (adopting Screening Order and “order[ing] that

Plaintiff’s individual capacity claims against Defendants . . . and

the Unidentified Duke Campus Police Officer are allowed to proceed

but that all other claims are dismissed pursuant to 28 U.S.C.

§ 1915A for failing to state a claim upon which relief may be

granted or seeking monetary relief against a defendant who is

immune from such relief” (bold and all-caps font omitted)).)4

As the Screening Order explains:

The Complaint alleges that Defendants . . . arrested

Plaintiff and that, while Plaintiff was handcuffed,

Kluttz pulled him to his knees, Wiggs delivered a forearm

3 “Section 1983 authorizes a plaintiff to sue for an alleged

deprivation of a federal constitutional right by an official acting

under color of state law.” Williamson v. Stirling, 912 F.3d 154,

171 (4th Cir. 2018) (internal quotation marks omitted).

4 This ruling moots Defendants’ official capacity dismissal

arguments (see Docket Entry 17 at 15).

2

blow that knocked Plaintiff to the ground and immobilized

him, and Kluttz then proceeded to repeatedly strike

Plaintiff’s torso with his knee, breaking several of

Plaintiff’s ribs. The Unidentified Officer allegedly

helped to subdue Plaintiff initially, but then backed off

and simply watched without intervening as Wiggs and

Kluttz assaulted Plaintiff. These allegations are

sufficient to state claims for relief against these three

[d]efendants in their individual capacities at this time.

(Docket Entry 7 at 3-4.)

Notwithstanding this analysis and conclusion, Defendants

“mov[ed] to dismiss [the] Complaint pursuant to Rules 12(b)(1),

(2), and (6) of the Federal Rules of Civil Procedure” (the “Rules”)

(Docket Entry 16 at 1 (citation omitted)), for, inter alia,

allegedly “fail[ing] to state a claim upon which relief can be

granted” (id.). In particular, Defendants’ supporting memorandum

asserts that qualified immunity and public official immunity5

protect them from Plaintiff’s claims. (See Docket Entry 17 at 7-

16.) Plaintiff responded in opposition to the Motion. (See Docket

Entries 23-25.) Defendants failed to reply to Plaintiff’s

opposition. (See Docket Entries dated Mar. 4, 2024, to present.)

5 “North Carolina courts refer to this form of immunity as

‘public officer immunity’ and ‘public official immunity,’

interchangeably, though the trend seems to indicate that ‘public

official immunity’ is more common now.” Hines v. Johnson, No.

1:19cv515, 2020 WL 1516397, at *16 n.8 (M.D.N.C. Mar. 30, 2020).

3

DISCUSSION

I. Relevant Standards

A. Rule 12(b) (6) Standards

A Rule 12 (b) (6) motion “tests the sufficiency of a complaint,”

but “does not resolve contests surrounding the facts, the merits of

a claim, or the applicability of defenses.” Republican Party of

N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992). Accordingly, in

reviewing a Rule 12(b) (6) motion, the Court must “accept the facts

alleged in the complaint as true and construe them in the light

most favorable to the plaintiff.” Coleman v. Maryland Ct. of App.,

626 F.3d 187, 189 (4th Cir. 2010), aff’d sub nom., Coleman v. Court

of App. of Md., 566 U.S. 30 (2012). The Court must also “draw all

reasonable inferences in favor of the plaintiff.” E.I. du Pont de

Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 440 (Ath Cir.

2011) (internal quotation marks omitted). Moreover, a pro se

complaint must “be liberally construed” and “held to less stringent

standards than formal pleadings drafted by lawyers.” Erickson v.

Pardus, 551 U.S. 89, 94 (2007) (internal quotation marks omitted);

but see Giarratano v. Johnson, 521 F.3d 298, 304 n.5 (4th Cir.

2008) (explaining that the United States Court of Appeals for the

Fourth Circuit has “not read Erickson to undermine [the]

requirement that a pleading contain more than labels and

conclusions” (internal quotation marks omitted)). Thus, although

qualified immunity defense can be presented in a Rule 12 (b) (6)

motion, . . . when asserted at this early stage in the proceedings,

the defense faces a formidable hurdle and is usually not

successful.” Owens v. Baltimore City State’s Att’ys Off., 767 F.3d

379, 396 (4th Cir. 2014) (internal quotation marks omitted).

To avoid Rule 12(b)(6) dismissal, a complaint must contain

sufficient factual allegations “to ‘state a claim to relief that is

plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

(2007)). A complaint need not contain detailed factual

recitations, but must provide “the defendant fair notice of what

the claim is and the grounds upon which it rests.” Twombly, 550

U.S. at 555 (internal quotation marks and ellipsis omitted). “At

bottom, determining whether a complaint states . . . a plausible

claim for relief . . . will ‘be a context-specific task that

requires the reviewing court to draw on its judicial experience and

common sense.’” Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir.

2009) (quoting Iqbal, 556 U.S. at 679).

B. Jurisdictional Standards

Under the Rules, a party may contest both the Court’s subject

matter jurisdiction, see Fed. R. Civ. P. 12(b)(1), and the Court’s

jurisdiction over that party, see Fed. R. Civ. P. 12(b)(2).6 When,

6 It remains unclear whether Defendants seek dismissal of

Plaintiff’s Complaint on both Rule 12(b)(1) and Rule 12(b)(2)

grounds, as their supporting memorandum cites only Rule 12(b)(1) in

arguing for dismissal of “Plaintiff’s state law claims” (Docket

Entry 17 at 16) and nowhere explicitly relies upon Rule 12(b)(2)

5

as here (see Docket Entry 17 at 16), a defendant asserts that “a

complaint simply fails to allege facts upon which subject matter

jurisdiction can be based,” Kerns v. United States, 585 F.3d 187,

192 (Ath Cir. 2009) (internal quotation marks omitted), “the

plaintiff, in effect, is afforded the same procedural protection as

he would receive under a Rule 12(b) (6) consideration,” id.

(internal quotation marks omitted). In other words, “the facts

alleged in the complaint are taken as true, and the motion must be

denied if the complaint alleges sufficient facts to invoke subject

matter jurisdiction.” Id.

Similarly, to survive a Rule 12(b) (2) challenge at this stage

of the proceedings, a plaintiff need only “mak[e] a prima facie

(see id. at 1-18). Likewise, some ambiguity exists regarding

whether public officer immunity more properly raises an issue of

personal jurisdiction, see Hines, 2020 WL 1516397, at *15 (“Public

official immunity is likewise considered a matter of personal

jurisdiction”), and/or of subject matter jurisdiction, see Green v.

Howell, 274 N.C. App. 158, 164, 851 S.E.2d 673, 678 (2020)

(“dismiss[ing the dJlefendant’s [interlocutory] appeal from the

trial court’s order denying his Rule 12(b) (1) motion based on the

defense of public official immunity,” on grounds that “den[ials of]

Rule 12(b6) (1) motions to dismiss based on sovereign immunity, and

therefore public official immunity, are not immediately appealable

because they neither affect a substantial right nor constitute an

adverse ruling as to personal jurisdiction,” but allowing

interlocutory “appeal from the trial court’s order denying

[defendant’s] Rule 12(b) (2) and 12(b) (6) motions to dismiss based

on public official immunity,” on grounds that “denial of a Rule

12(b) (2) motion premised on sovereign immunity constitutes an

adverse ruling on personal jurisdiction and is therefore

immediately appealable” (internal quotation marks omitted)).

Nevertheless, given the nature of the applicable standards and

Defendants’ contentions (as discussed herein), the Court need not

resolve whether Defendants’ challenges more properly implicate Rule

12(b) (1) or Rule 12(b) (2).

showing in support of [his] assertion of jurisdiction.” Universal

Leather, LLC v. Koro AR, S.A., 773 F.3d 553, 558 (4th Cir. 2014).

And, in analyzing the personal jurisdiction issue, the Court “must

construe all relevant pleading allegations in the light most

favorable to the plaintiff, assume credibility, and draw the most

favorable inferences for the existence of jurisdiction.” Id.

(internal quotation marks omitted).

C. Excessive Force Standards

The United States Supreme Court has held that:

Where, as here, [an] excessive force claim arises in

the context of an arrest or investigatory stop of a free

citizen, it is most properly characterized as one

invoking the protections of the Fourth Amendment, which

guarantees citizens the right “to be secure in their

persons . . . against unreasonable . . . seizures” of the

person.

Graham v. Connor, 490 U.S. 386, 394 (1989) (ellipses in original).

Accordingly, “all claims that law enforcement officers have used

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

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

analyzed under the Fourth Amendment and its ‘reasonableness’

standard.” Id. at 395 (emphasis omitted).

“Determining whether the force used to effect a particular

seizure is ‘reasonable’ under the Fourth Amendment requires a

careful balancing of ‘the nature and quality of the intrusion on

the individual’s Fourth Amendment interests’ against the

countervailing governmental interests at stake.” Id. at 396

7

(certain internal quotation marks omitted). Thus, although “the

right to make an arrest or investigatory stop necessarily carries

with it the right to use some degree of physical coercion or threat

thereof to effect it,” id., courts “have consistently held that

officers using unnecessary, gratuitous, and disproportionate force

to seize a secured, unarmed citizen, do not act in an objectively

reasonable manner,” Jones v. Buchanan, 325 F.3d 520, 532 (4th Cir.

2003).

Although an objective test, see Graham, 490 U.S. at 397, the

Fourth Amendment’s reasonableness standard “is not capable of

precise definition or mechanical application,” id. at 396 (internal

quotation marks omitted). Instead,

its proper application requires careful attention to the

facts and circumstances of each particular case,

including the severity of the crime at issue, whether the

suspect poses an immediate threat to the safety of the

officers or others, and whether he is actively resisting

arrest or attempting to evade arrest by flight.

Id. The Court conducts this inquiry “from the perspective of a

reasonable officer on the scene, rather than with the 20/20 vision

of hindsight,” id., recognizing “that police officers are often

forced to make split-second judgments — in circumstances that are

tense, uncertain, and rapidly evolving — about the amount of force

that is necessary in a particular situation,” id. at 397.

Ultimately, “the question is whether the officers’ actions are

‘objectively reasonable’ in light of the facts and circumstances

8

confronting them, without regard to their underlying intent or

motivation.” Id.7

In addition, “[t]o establish personal liability under § 1983,

. . . the plaintiff must affirmatively show that the official

charged acted personally in the deprivation of the plaintiff’s

rights. That is, the official’s own individual actions must have

violated the Constitution.” Williamson v. Stirling, 912 F.3d 154,

171 (4th Cir. 2018) (brackets, citation, and internal quotation

marks omitted); see also id. (explaining that “mere knowledge of

such a deprivation does not suffice”). As a general matter,

however, “an officer possesses an affirmative duty to intervene to

protect the constitutional rights of citizens from infringement by

other law enforcement officers.” Randall v. Prince George’s Cnty.,

302 F.3d 188, 203 (4th Cir. 2002) (internal quotation marks

omitted). “Therefore, an officer may be liable under § 1983, on a

theory of bystander liability, if he: (1) knows that a fellow

officer is violating an individual’s constitutional rights; (2) has

a reasonable opportunity to prevent the harm; and (3) chooses not

to act.” Id. at 204 (footnote omitted). “The rationale underlying

the bystander liability theory is that a bystanding officer, by

7 As such, Defendants’ contention that “[t]he Complaint is

deficient because it fails to allege that [they] lacked probable

cause based on the information they had at the time and what was

their state of mind” (Docket Entry 17 at 17) lacks merit. Neither

the existence of probable cause nor Defendants’ “state of mind”

(id.) bears any relevance to Plaintiff’s excessive force claim.

See Graham, 490 U.S. at 396-97.

9

choosing not to intervene, functionally participates in the

unconstitutional act of his fellow officer.” Id. at 204 n.24.

II. Analysis

A. Excessive Force Claim

Defendants contend that “any claims against [them] in their

individual capacity should be dismissed because they are entitled

to qualified immunity.” (Docket Entry 17 at 7 (emphasis omitted).)

This contention does not warrant dismissal.

To begin, Defendants have provided very limited substantive

argument regarding their entitlement to qualified immunity.

Initially, their supporting memorandum states:

“Plaintiff alleges that Defendants ‘accosted [him] on the

pretense that they saw [him] holding a bag of marijuana through a

pair of binoculars. In the altercation that followed[, Plaintiff]

was struck repeatedly in the neck and chest while in handcuffs by

the ALE agents.’” (Id. at 8; see also id. (repeating that

Plaintiff alleged “he was in handcuffs when the altercation

occurred”).) Then, after reviewing general authority regarding

qualified immunity (see id. at 8-11), they argued as follows:

Defendants are entitled to qualified immunity.

Defendants did not violate Plaintiff’s constitutional

rights. However, even assuming arguendo that Plaintiff’s

constitutional rights were violated, officers in the same

circumstances could have believed that their conduct was

lawful. Thus, the officers are entitled to qualified

immunity. Assuming arguendo that Plaintiff’s

constitutional rights were violated, Saucier [v. Katz,

533 U.S. 194 (2001), overruled in part by Pearson v.

Callahan, 555 U.S. 223 (2009)] instructs that a court

10

proceed to the second step of the qualified immunity

analysis. Saucier, 533 U.S. at 201.

Even assuming arguendo that the law applied to the

facts could possibly show a constitutional violation, no

existing precedent puts it “beyond debate” that the

officers’ actions violated the Constitution. See, e.g.,

Mullenix [v. Luna, 577 U.S. 7 (2015)8], supra. Thus,

because a reasonable officer could have believed that the

officers’ actions were lawful, Defendants are entitled to

qualified immunity.

(Docket Entry 17 at 11 (certain italicization added) (parallel

citations omitted).)

“A party waives an argument . . . by failing to develop its

argument — even if its brief takes a passing shot at the issue.”

Grayson O Co. v. Agadir Int’l LLC, 856 F.3d 307, 316 (4th Cir.

2017) (brackets and internal quotation marks omitted). Defendants’

“brief contains none of the development required” to advance its

qualified immunity contention. Hensley on behalf of N.C. v. Price,

876 F.3d 573, 580 n.5 (4th Cir. 2017). “It contains no argument on

[either] prong of the qualified immunity test. It contains no

citation to cases actually applying [either] prong of the qualified

8 Unlike here, where Plaintiff alleges that Defendants

assaulted him while handcuffed (see Docket Entry 2 at 4-9), the

case cited above involved the applicability of qualified immunity

for an officer who attempted to stop a fleeing suspect by shooting

at his car, in circumstances where the officer “confronted a

reportedly intoxicated fugitive, set on avoiding capture through

high-speed vehicular flight, who twice during his flight had

threatened to shoot police officers, and who was moments away from

encountering an[other] officer,” Mullenix, 577 U.S. at 13; see also

id. at 13-14 (explaining that “[t]he relevant inquiry is whether

existing precedent placed the conclusion that [the defendant

officer] acted unreasonably in these circumstances ‘beyond debate’”

(emphasis added)).

11

immunity test.” Id. at 580-81 n.5. Defendants thus waived their

qualified immunity argument, warranting its denial on this basis

alone. See id. at 580 & n.5; see also Hill v. Carvana, LLC, No.

1:22cv37, 2022 WL 1625020, at *5 (M.D.N.C. May 23, 2022) (“It is

not the Court’s job to undertake the analysis and legal research

needed to support a perfunctory argument, nor should a party expect

[the C]ourt to do the work that it elected not to do.” (citation

and internal quotation marks omitted)).

Moreover, at this stage of the proceedings, Defendants’

qualified immunity defense fails on the merits. “The doctrine of

qualified immunity protects government officials from liability for

civil damages insofar as their conduct does not violate clearly

established statutory or constitutional rights of which a

reasonable person would have known.” Pearson, 555 U.S. at 231

(internal quotation marks omitted). “The protection extends to all

but the plainly incompetent or those who knowingly violate the

law.” Raub v. Campbell, 785 F.3d 876, 881 (4th Cir. 2015)

(internal quotation marks omitted). Under this doctrine,

“[o]fficials are not liable for bad guesses in gray areas; they are

liable for transgressing bright lines.” Id. (brackets in original)

(internal quotation marks omitted).

In evaluating qualified immunity, courts consider “(1) whether

the plaintiff has established the violation of a constitutional

right, and (2) whether that right was clearly established at the

12

time of the alleged violation.” Id.9 A right qualifies as

“clearly established” if “it would be clear to a reasonable officer

that his conduct was unlawful in the situation he confronted.”

Saucier, 533 U.S. at 202. In other words, “[t]he unlawfulness of

the action must be apparent when assessed from the perspective of

an objectively reasonable official charged with knowledge of

established law.” Lopez v. Robinson, 914 F.2d 486, 489 (4th Cir.

1990). “This is not to say that an official action is protected by

qualified immunity unless the very action in question has

previously been held unlawful, but it is to say that in the light

of pre-existing law the unlawfulness must be apparent.” Anderson

v. Creighton, 483 U.S. 635, 640 (1987) (citation omitted).

In ascertaining whether a right qualified as clearly

established at the time of the challenged conduct, courts within

this circuit generally “need not look beyond the decisions of the

[United States] Supreme Court, th[e Fourth Circuit], and the

highest court of the state in which the case arose.” Edwards v.

City of Goldsboro, 178 F.3d 231, 251 (4th Cir. 1999) (internal

quotation marks omitted). However, in the absence of controlling

precedent, a right may qualify as clearly established (1) if it

appears “manifestly included within more general applications of

the core constitutional principles invoked” or (2) based on “a

9 The Court may address these prongs in whatever order “will

best facilitate the fair and efficient disposition of [the] case.”

Pearson, 555 U.S. at 242.

13

consensus of cases of persuasive authority from other

jurisdictions.” Booker v. South Carolina Dep’t of Corr., 855 F.3d

533, 538-39 (4th Cir. 2017) (emphasis and internal quotation marks

omitted). Conversely, in the absence of controlling authority,

decisions from other jurisdictions that decline to find

constitutional violations in similar circumstances can justify

application of qualified immunity. See Pearson, 555 U.S. at 244-

45.

Here, Plaintiff asserts that Defendants beat him “while

handcuffed, restrained, and posing no threat to [any] Defendants”

(Docket Entry 2 at 4; see also id. at 6, 8-9), thereby breaking his

ribs (see id. at 8-93). “[T]here is controlling precedent holding

that assaulting an unarmed, subdued suspect or arrestee violates

the Fourth Amendment.” Moore v. Peitzmeier, No. CV 18-2151, 2020

WL 94467, at *l11 (D. Md. Jan. 7, 2020). Indeed, long before

Plaintiff’s arrest in August 2021, courts, including the Fourth

Circuit, had repeatedly held that beating a non-resistant,

handcuffed individual violated the Fourth Amendment. See, e.g.,

Jones, 325 F.3d at 532-35 (discussing and collecting cases,

including Kane v. Hargis, 987 F.2d 1005 (4th Cir. 1993),

establishing principle, as of at least 1990, that using force

against secured individual who posed no threat “was unreasonable”

and “excessive,” thereby precluding award of qualified immunity to

officer). Put another way:

14

In conjunction with cases from a number of other circuits

that have held that using additional force after the

arrestee no longer poses a threat is unreasonable, see

[id.] at 533-34 (collecting cases), the[ Jones and Kane]

cases illustrate that at the time of [Plaintiff’s]

arrest, it was clearly established that striking an

arrestee who was already under control violates the

Fourth Amendment.

Moore, 2020 WL 94467, at *11. Thus, even if considered on the

merits, “the Court [should] deny [Defendants’] qualified immunity”

contentions at this stage of the proceedings. Id.

B. Battery Claim

The determination that Plaintiff’s Section 1983 excessive

force claim survives dismissal controls disposition of Plaintiff’s

battery claim. See, e.g., Wardlow v. Reyes, No. 1:22cv416, 2024 WL

1935908, at *13-14 (M.D.N.C. May 1, 2024) (explaining that survival

of Section 1983 excessive force claim against arresting officers

mandates survival of North Carolina battery claim against such

officers) (collecting cases). Under North Carolina law, an

individual may pursue “a civil action for damages for assault and

battery . . . against one who, for the accomplishment of a

legitimate purpose, such as justifiable arrest, uses force which is

excessive under the given circumstances.” Myrick v. Cooley, 91

N.C. App. 209, 215, 371 S.E.2d 492, 496 (1988) (citing 6 Am. Jur.

2d Assault and Battery § 122 (1963)). “Under the common law, a law

enforcement officer has the right, in making an arrest and securing

control of an offender, to use only such force as may be reasonably

necessary to overcome any resistance and properly discharge his

15

duties.” Id., 371 S.E.2d at 496. Accordingly, “[h]e may not act

maliciously in the wanton abuse of his authority or use unnecessary

and excessive force.” Id., 371 S.E.2d at 496 (internal quotation

marks omitted); see also N.C. Gen. Stat. § 15A-401(d) (specifying

circumstances under which “a law-enforcement officer is justified

in using force upon another person” and noting that “[n]othing in

this [provision] constitutes justification for willful, malicious

or criminally negligent conduct by any person which injures or

endangers any person or property, nor shall it be construed to

excuse or justify the use of unreasonable or excessive force”).

Importantly, “[t]he threshold for determining whether the

limits of privileged force have been exceeded for purposes of

liability under Section 1983 is higher than that for a normal tort

action.” Myrick, 91 N.C. App. at 215, 371 S.E.2d at 496. Thus,

“[w]here a plaintiff brings both a § 1983 excessive force claim and

a common law claim for assault and battery, the court’s

determination of the reasonableness of the force used with respect

to the § 1983 claim controls its assault and battery analysis,” 6

Am. Jur. 2d Assault and Battery § 96 (2024), at least insofar as

constitutionally excessive force will be deemed to constitute a

battery. See Main v. Wingler, No. 5:22cv157, 2024 WL 871384, at *9

(W.D.N.C. Feb. 29, 2024) (“The Fourth Circuit has recognized that[]

‘the jurisprudence governing Fourth Amendment excessive force

actions also controls a party’s actions for battery and gross

16

negligence.’”); Morgan v. City of Charlotte, No. 3:22cv3, 2023 WL

4002524, at *15 (W.D.N.C. June 14, 2023) (observing that the

plaintiff’s North Carolina “battery claim[] . . . rises and falls

with the excessive force claim”), appeal filed, No. 23-1748 (4th

Cir. July 13, 2023); see also Hensley, 876 F.3d at 586-87 & n.7

(explaining that, “because [the court’s] analysis of the

[plaintiffs’ North Carolina arrest-related] assault claim turns

entirely on [its] analysis of the [defendants’] qualified immunity

defense,” where Section 1983 fourth-amendment excessive force claim

survived summary judgment, the “plaintiffs’ assault claim could

proceed as a matter of law”).10

Nevertheless, Defendants maintain that public official

immunity shields them from Plaintiff’s battery claim. (See Docket

Entry 17 at 12-16.)11 Under North Carolina law, “a public official,

10 Given “the lower threshold [under] state law” for battery,

however, conduct that does not rise to the level required for a

viable Section 1983 excessive force claim can nonetheless

constitute a battery. Myrick, 91 N.C. App. at 216-17, 371 S.E.2d

at 497 (“conclud[ing] that a directed verdict was properly entered

against [the plaintiff] on his Section 1983 claim of an

unconstitutional use of excessive force by Officer Cooley,” but

determining “that the evidence . . . is sufficient, under the lower

threshold of state law, to raise a question for the jury as to

whether, considering the degree of resistance offered by [the

plaintiff], Officer Cooley used an amount of force beyond that

reasonably necessary to arrest and subdue [the plaintiff],” such

“that the issue of common law assault and battery should have gone

to the jury”).

11 To the extent that Defendants assert that public official

immunity protects them from Plaintiff’s fourth-amendment excessive

force claim (see id. at 12-15 (arguing that public official

immunity protects Defendants from “Plaintiff’s claims” and from

17

engaged in the performance of governmental duties involving the

exercise of judgment and discretion, may not be held personally

liable for mere negligence in respect thereto.” Smith v. State,

289 N.C. 303, 331, 222 S.E.2d 412, 430 (1976) (internal quotation

marks omitted). “The rule in such cases is that an official may

not be held liable [u]nless it be alleged and proved that his act,

or failure to act, was corrupt or malicious .. ., or that he acted

outside of and beyond the scope of his duties.” Id., 222 S.E.2d at

430 (internal quotation marks omitted). “As long as a public

officer lawfully exercises the judgment and discretion with which

he is invested by virtue of his office, keeps within the scope of

his official authority, and acts without malice or corruption, he

is protected from liability.” Id., 222 S.E.2d at 430.

However, “public officers’ immunity . . . is unavailable to

officers who violate clearly established rights because an officer

acts with malice when he does that which a man of reasonable

intelligence would know to be contrary to his duty.” Bailey v.

“liability to Plaintiff in this case”)), that contention lacks

merit. “[Plublic official immunity represents a state law defense

to claims arising under state law,” and thus does not impact

Plaintiff’s Section 1983 excessive force claim. Connell v. Adams,

No. 1:22cv935, 2023 WL 2914856, at *7 (M.D.N.C. Apr. 12, 2023)

(brackets, citation, and internal quotation marks omitted), report

and recommendation adopted sub nom. Connell v. Russell, No.

1:22-cv-935, 2023 WL 3229968 (M.D.N.C. May 3, 2023); see also id.

(“Because Plaintiff’s claim here arises under Section 1983 (a

federal law), public official immunity affords no relief to

Defendant[s].”).

18

Kennedy, 349 F.3d 731, 742 (4th Cir. 2003) (internal quotation

marks omitted); see also Hines v. Johnson, No. 1:19cv515, 2020 WL

1516397, at *17 (M.D.N.C. Mar. 30, 2020) (explaining that “[p]ublic

official immunity . . . is not available for intentional torts”).12

“Accepting the facts as [alleged in the Complaint], a man of

reasonable intelligence would have known that [beating Plaintiff

while handcuffed and posing no threat to others] was contrary to

his duty,” thereby “foreclos[ing] the availability of public

officers’ immunity on [Plaintiff’s battery claim]” at this stage of

the proceedings. Bailey, 349 F.3d at 742; see also id. at 742 n.6

(“Because we find that the acts at issue violated rights that were

clearly established, an officer of reasonable intelligence would

have known that the officers’ actions were contrary to their duty.

This is all that is required to support a finding of malice under

state law, and it is clear that there is no public officers’

immunity where the officers act with malice.” (citation omitted)).

12 As the North Carolina Supreme Court has explained:

“The term ‘malice,’ as applied to torts, does not

necessarily mean that which must proceed from a spiteful,

malignant, or revengeful disposition, but a conduct

injurious to another, though proceeding from an

ill-regulated mind not sufficiently cautious before it

occasions an injury to another. If the conduct of the

defendant was unjustifiable, and actually caused the

injury complained of by the plaintiff, . . ., malice in

law would be implied from such conduct . . . .”

Betts v. Jones, 208 N.C. 410, 181 S.E. 334, 335 (1935) (citation

omitted).

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Accordingly, the Court should deny Defendants’ request to

dismiss Plaintiff’s battery claim. See, e.g., Johnson v. City of

Fayetteville, 91 F. Supp. 3d 775, 816 (E.D.N.C. 2015) (rejecting

argument that public official immunity barred assault and battery

claims where the defendant lacked qualified immunity for Section

1983 excessive force claim, explaining that, “[w]here a defendant

has been denied qualified immunity as to § 1983 excessive force

. . . claims, the Fourth Circuit has found denial of public

official immunity on North Carolina common law assault and battery

. . . claims to be appropriate”).

CONCLUSION

At this stage of the proceedings, qualified immunity and

public official immunity afford Defendants no relief from

Plaintiff’s excessive force and battery claims.

IT IS THEREFORE RECOMMENDED that the Motion (Docket Entry 16)

be denied.

This 30th day of May, 2024.

/s/ L. Patrick Auld

L. Patrick Auld

United States Magistrate Judge

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