# HOLMAN v. WIGGS

> District Court, M.D. North Carolina · May 30, 2024

URL: https://www.frixlaw.com/law-library/cases/10254493

## Case

- **Court:** District Court, M.D. North Carolina
- **Decided:** May 30, 2024
- **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/10254493

## How later opinions describe it (automated extraction)

- explaining that “mere knowledge of such a deprivation does not suffice”
- 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)
- 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)

## Opinion text

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).
19
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

20

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10254493. Public record. Not legal advice.