SIDES v. KIMBROUGH

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

ANTHONY SIDES, )

)

Plaintiff, )

)

v. ) 1:23cv502

)

BOBBY KIMBROUGH, et al., )

)

Defendants. )

MEMORANDUM OPINION, ORDER, AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

This case comes before the Court on the “Motion to Dismiss”

filed by Forsyth County, Forsyth County Sheriff Bobby Kimbrough,

Dan Ricardo Didomizio, Jr., Sean Edwards Mukrdechian, Kela Marie

Spain, Joel Gregory Surratt, Damian Daniel McPherson, Kiam DeQuan

Holley, and Patrick Michael Morrissey (collectively, the

“Defendants”) (Docket Entry 8)1 (the “Dismissal Motion”) and

Defendants’ “Motion to Seal” (Docket Entry 12) (the “Sealing

Motion”). For the reasons that follow, the Court (i) should grant

the Dismissal Motion and (ii) will deny the Sealing Motion.

BACKGROUND

Asserting a litany of state and federal claims regarding his

intake at the Forsyth County Detention Center on May 23, 2020,

Anthony Sides (the “Plaintiff”), through counsel, sued Defendants

and “John Doe Corporation[,] . . . the Surety on the official bond

1 For legibility reasons, this Opinion omits all-cap and bold

font and the word “the” in front of Plaintiff and Defendant(s) in

all quotations from the parties’ materials.

of Defendant Kimbrough as Sheriff of Forsyth County” (Docket Entry

5 (the “Complaint”), ¶ 7), in state court. (See generally Docket

Entry 5.) Defendants removed the action to this Court based on

“federal question jurisdiction” regarding Plaintiff’s federal

claims and “supplemental jurisdiction” for Plaintiff’s state

claims. (Docket Entry 1 at 1-2.)2 According to the Complaint’s

“Facts” section (Docket Entry 5 at 6):

At all relevant times, Plaintiff resided in Forsyth County,

North Carolina. (Id., ¶ 20.) “On May 23, 2020, between

approximately the hours of 2:00 am and 4:00 am at the Forsyth

County Detention Center, Plaintiff was injured by several officers

that used excessive force.” (Id., ¶ 21.) “The video of the

encounter shows that Defendants used excessive force to remove

Plaintiff’s clothing and deposit Plaintiff into a cell.” (Id.,

¶ 22.) “Plaintiff was violently thrown against the cell walls and

the floor by Defendants.” (Id., ¶ 23.) “There is no evidence that

Plaintiff struck or was combative with the officers. There is also

no evidence that Plaintiff refused to comply with the officers’

verbal commands.” (Id., ¶ 24.) “The force used by the officers

resulted in Plaintiff suffering a broken jaw requiring surgery,

wrist pain, and permanent impairment of his vision.” (Id., ¶ 25.)

“The Forsyth County Detention Center failed to provide proper care

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

pagination.

2

and assessment for Plaintiff’s injury. Plaintiff was not assessed

and treated in a timely fashion.” (Id., ¶ 26.)

“Defendants’ use of excessive force has caused serious damage

to Plaintiff such that he has a permanent physical deformity and

incurred outstanding medical bills and expenses.” (Id., ¶ 27.)

“Defendants’ actions have interfered with Plaintiff’s income and

have resulted in great financial damage to Plaintiff, for which he

is entitled to damages from Defendants.” (Id., ¶ 28.) “As a

direct and proximate result of Defendants’ malicious, intentional,

and willful actions, Plaintiff has suffered serious and permanent

financial, physical, psychological, and emotional injury, for which

he has received and is continuing to receive medical,

psychological, and psychiatric attention, and as a result of which

he has incurred medical and other expenses, lost wages and other

financial losses.” (Id., ¶ 29.) “As a direct and proximate result

of Defendants’ malicious, intentional and willful actions,

Plaintiff has suffered permanent physical, psychological and

emotional injury.” (Id., ¶ 30.) “Also as a direct and proximate

result of Defendants’ malicious, intentional and willful actions,

Plaintiff has suffered severe emotional distress, severe

depression, panic disorders, post-traumatic stress disorder, and

other pecuniary and non-pecuniary losses.” (Id., ¶ 31.) “All

actions of Defendants were carried out in their capacities as

sheriff, deputy sheriffs, law enforcement, or corrections officers

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of and pursuant to policies and practices of Defendant Sheriff

Bobby Kimbrough.” (Id., {I 32.)

The Complaint contains twenty-two claims, including an

intentional infliction of emotional distress claim, a gross

negligence claim, a common-law battery claim, an “injury to

prisoner by jailer” claim, and “negligence/gross negligence” claims

against Forsyth Sheriff Deputies Didomizio, Mukrdechian, Spain,

Surratt, McPherson, Holley, and Morrissey (each individually, a

“Deputy Defendant,” and collectively, at times, the “Deputy

Defendants”) and Sheriff Kimbrough. (See id. at 10-26, 31-33.)

The Complaint further asserts claims for excessive force against

each Deputy Defendant. (See id. at 27-31.)° Finally, the

Complaint asserts claims against “Defendants” for “state created

danger” (id. at 26), failure to train, and punitive damages. (See

id. at 26-27, 33-34.)

As relevant to the Dismissal Motion, the “gross negligence”

claim asserts:

Plaintiff hereby incorporates the allegations

contained in prior paragraphs of this Complaint, but

[sic] reference thereto, as if herein fully set forth.

Defendants, Forsyth County Sheriff Kimbrough, and

the above-named Defendant Deputies owed a duty to

Plaintiff and the general public to ensure that its

agents, deputies, investigators and employees, performed

3 As the “Sixteenth Cause of Action” and “Eighteenth Cause of

Action,” the Complaint lodges identical excessive force claims

against Deputy Surratt. (See id. at 29-30.)

their duties in a manner as to avoid excessive force upon

Plaintiff by Officers.

Defendants breached these duties with regard to

Plaintiff in several ways, including but not limited to,

the following:

a. Forsyth County Sheriff Kimbrough failed to

ensure that Deputies Dan Ricardo Didomizio, Jr.,

Sean Edward Mukrdechian, Kela Marie Spain, Joel

Gregory Surratt, Damian Daniel McPherson, Kiam

Dequan Holley, and Patrick Michael Morrissey were

not [sic] adequately trained, supervised, and

instructed;

b. Sheriff Kimbrough failed to ensure that the

Forsyth County Sheriff’s Office established

reasonable and appropriate policies and procedures

governing Officer and detainee/arrestee

interactions;

c. Sheriff Kimbrough failed to ensure that the

Forsyth County Sheriff’s Office established

reasonable and appropriate policies regarding the

hiring, promotion, and retention of law enforcement

personnel;

d. Defendants failed to maintain appropriate use of

force with detainee/arrestee;

e. Defendants failed to comply with rules and

regulations of the Forsyth County She[r]iff’s

Office and[;]

f. Defendants were careless and negligent in such

other ways as may be identified during the course

of discovery and/or trial.

Defendants’ negligent acts and omissions are direct

and proximate cause[s] of the severe and permanent

injuries for which Plaintiff is entitled to recover

damages under North Carolina law.

At all times relevant to the incident alleged

herein, Deputies Dan Ricardo Didomizio, Jr., Sean Edward

Mukrdechian, Kela Marie Spain, Joel Gregory Surratt,

Damian Daniel McPherson, Kiam Dequan Holley, and Patrick

Michael Morrissey committed the negligent acts and

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omissions alleged while acting within the course and

scope of their employment and/or agency with the Forsyth

County Sheriff’s Office. As such, Defendant Kimbrough is

liable for the negligent acts and omissions of Defendant

Deputies and their negligence is imputed to Sheriff

Kimbrough through the doctrines of agency, vicarious

liability, and respondeat superior.

Plaintiff is entitled to recover from Defendants,

jointly and severally, an amount in excess of Twenty-five

Thousand Dollars ($25,000.00) as a result of Defendants’

negligence, gross negligence, and/or willful and wanton

negligence.

(Id., ¶¶ 53-58 (certain internal paragraph numbering omitted).)

As for its “negligence/gross negligence” claims, the Complaint

repeats the same allegations against each Deputy Defendant,

altering only the name and pronoun associated with each claim (see

id., ¶¶ 59-114):

The preceding paragraphs are hereby incorporated by

reference and re-alleged as if fully set forth herein.

Defendant Deputy [Name], individually and in

his[/her] official capacity as a Sheriff under the

supervision of Forsyth County Sheriff Kimbrough, was

negligent at the time and place alleged hereinabove, and

his[/her] acts and omissions of negligence include, but

are not limited to, the following:

a. He[/She] failed to possess the necessary

training and experience to serve as a sheriff in

the [sic] Forsyth County, and respond to an

arrestee/detainee with reasonable force;

b. He[/She] failed to use reasonable force with

Plaintiff when removing his clothes and depositing

him in his cell;

c. He[/She] failed to contact appropriate medical

personnel after Plaintiff sustained injuries caused

by Defendants;

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d. He[/She] failed to use less combative,

provocative, and aggressive methods of

communication with Plaintiff after his arrest; and

e. He[/She] was otherwise careless and negligent in

such other ways as may be revealed by discovery or

during the trial of this action.

Defendant’s actions were malicious, intentional,

unreasonable, willful and wanton, grossly negligent, and

Defendant acted outside the scope of his[/her] duties as

assigned by Forsyth County Sheriff Kimbrough and with

conscious and reckless disregard for the lives and safety

of others, including Plaintiff. Based on Defendant’s

conduct, Defendant is not entitled to immunity from

personal liability and may be sued in his[/her]

individual capacity.

The negligent acts and omissions of Defendant Deputy

[Name], as described hereinabove, were a proximate cause

of the injury to Plaintiff.

The acts and omissions of Defendant Deputy [Name],

as described hereinabove, were willful, wanton and/or

reckless, and amount to gross negligence.

Defendant Deputy [Name], was aware of the probable

consequences of his[/her] conduct due to the use of

excessive force against Plaintiff[,] which resulted in

severe injuries.

The negligence of Defendant Deputy [Name], is

imputed by law to the [sic] Forsyth County Sheriff

Kimbrough by reason of Defendant Deputy [Name’s] agency

relationship with, and employment by, the Forsyth County

Sheriff Kimbrough at the time and place that the incident

occurred, under the doctrine of respondeat superior.

Plaintiff is entitled to recover from Defendants,

jointly and severally, an amount in excess of Twenty-Five

Thousand Dollars ($25,000.00) as a result of Deputy

[Name’s] negligence, gross negligence, and/or willful and

wanton negligence.

(Id., ¶¶ 59-66 (certain internal paragraph numbering omitted);

accord id., ¶¶ 67-114.)

7

The Complaint employs the same approach in its excessive force

claims against Deputy Defendants:

Plaintiff restates the allegations contained in each

and every preceding paragraph as though fully set forth

here.

Defendant [Name] deprived Plaintiff of the rights,

privileges and immunities secure[d] by the Constitution

and laws of the United States by subjecting him to

excessive force under the Fourth Amendment.

Particularly, [Name] knew or should have known that

the application of excessive force would cause the

inflection [sic] of great pain.

Defendant [Name’s] use of force was also

unreasonable under the circumstances.

As a direct and proximate result of this use of

excessive force, Plaintiff suffered serious personal

injuries.

(Id., ¶¶ 131-35 (internal paragraph numbering omitted); accord id.,

¶¶ 136-70.)

Finally, the Complaint presents the following failure to train

claim:

Plaintiff restates the allegations contained in each

and every preceding paragraph as though fully set forth

here.

By their actions and inactions with respect to the

training, supervision, and discipline of the officers

removing Plaintiff’s clothing and placing him in a cell,

Defendants acted knowingly and with deliberate

indifference to the rights of Plaintiff.

Defendants, and each of them, individually and in

their official capacity, are liable to Plaintiff, for

damages both general and specific and for punitive

damages under 4[2] U.S.C.[] § 1983.

(Id., ¶ 128-30 (internal paragraph numbering omitted).)

8

Defendants moved to dismiss the Complaint. (See Docket Entry

8.) In so doing, Defendants relied upon videos of the incident.

(See, e.g., id. at 3 (“Most importantly, this case should be

dismissed because the recordings of the incident, relied upon by

Plaintiff in the [C]omplaint, show that Plaintiff’s core allegation

— that he was injured when thrown against the cell walls and floor

— simply did not occur.”); see also Docket Entry 13 (noting videos’

manual filing).) “Defendants [also] moved to seal the [video]

recordings out of an abundance of caution.” (Docket Entry 12 at 7;

see generally Docket Entry 12.) Plaintiff opposed both motions

(see Docket Entries 15-16), relying, in part, on the submitted

videos (see, e.g., Docket Entry 16 (the “Response”) at 2

(describing what “[t]he videos show” and what “[t]he videos do not

show”), 7 (“The video produced by the defendants makes clear that

the detention officers are specifically trained to engage in

excessive force and record their violations.”)). As relevant to

the Complaint, the videos show:

Between 2:56 a.m. and 2:59 a.m. on May 23, 2020, officers in

the detention center’s intake area searched Plaintiff, who remained

upright, handcuffed, and fully clothed throughout the encounter.

(See Video 1 at 2:56:53 AM to 2:59:08 AM; Video 5 at 2:58:44 AM to

2:59:00 AM.)4 Loud, boisterous, and seemingly intoxicated,

4 The timestamp on the bodyworn camera footage, videos two

through six (Docket Entry 11, ¶¶ 5-9), reflects “‘Zulu’ or

Universal Time Coordinated, which is four hours ahead of eastern

9

Plaintiff issued multiple expletives, racial and homophobic slurs,

and threats throughout his time in the intake area. (See Video 1

at 2:56:53 AM to 2:59:08 AM.) After removing the contents of

Plaintiff’s pockets, officers escorted Plaintiff through the

detention center’s hallway to an elevator. (See id. at 2:59:02 AM

to 2:59:36 AM; Video 5 at 2:59:00 AM to 2:59:48 AM; Video 7 at

00:00 to 00:52.) Plaintiff continued his loud, expletive-laden,

threatening, and racist commentary during this walk, with

additional officers joining the escort on the way to the elevator.

(See Video 1 at 2:59:02 AM to 2:59:36 AM; Video 5 at 2:59:00 AM to

2:59:48 AM; Video 7 at 00:00 to 00:52.)5

During the elevator ride, multiple officers restrained

Plaintiff in the elevator’s rear corner, holding him against the

elevator’s walls as he continued to threaten them, including

threatening to sue. (See Video 5 at 2:59:48 AM to 3:00:27 AM;

Video 7 at 00:52 to 01:34.) Plaintiff maintained his loud

commentary as the officers escorted him off the elevator, through

hallways, and into and across a cellblock, where they entered cell

8D04. (See Video 5 at 3:00:27 AM to 3:01:03 AM; Video 7 at 01:34

time” (id., ¶ 5).

5 Some of Plaintiff’s statements suggest familiarity with

certain of these officers. (See, e.g., Video 7 at 00:33 to 00:40

(“You see that boy back there behind you, he know who I am. What’s

up, Reese. These motherfuckers don’t know who they’re fucking

with.”).)

10

to 02:06.)6 In the interval between Plaintiff’s arrival in the

intake area and at the cell, another officer opened the cell and

transferred the mattress from the cell’s bed to its floor. (See

Video 2 at 3:00:26 AM to 3:01:05 AM.)

At officers’ direction, Plaintiff knelt down on the mattress

before officers shifted him into a prone position, face-down on the

mattress. (Id. at 3:01:05 AM to 3:01:14 AM; Video 5 at 3:01:03 AM

to 3:01:13 AM; Video 7 at 02:06 to 02:18.) Officers then stripped

him of his clothing, during which process Plaintiff repeatedly and

loudly exclaimed in pain, referencing his arm and repeatedly

telling the officers to remove his handcuffs. (Video 2 at

3:01:05 AM to 3:03:30 AM; Video 5 at 3:01:13 AM to 3:03:15 AM;

Video 7 at 02:18 to 04:37.) During this process, officers

restrained Plaintiff’s arms and hands behind his back, frequently

holding his hands in such a position that it visibly restricted

their bloodflow. (See Video 5 at 3:01:10 AM to 3:03:15 AM; Video

6 at 3:01:08 AM to 3:03:30 AM.) Officers removed Plaintiff’s

handcuffs (see Video 2 at 3:02:12 AM to 3:02:22 AM; Video 5 at

3:01:51 AM to 3:02:19 AM; Video 7 at 03:24), prior to removing

Plaintiff’s shirt and rolling his torso to the left and right to

check under him on the mattress for contraband (see Video 5 at

6 In the videos of this incident, however, Plaintiff did not

appear to actively resist officers’ directives or actions. (See,

e.g., Video 1 at 2:56:53 AM to 2:59:36 AM; Video 7 at 00:00 to

05:32.)

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3:02:19 AM to 3:03:10 AM; Video 7 at 03:24 to 04:14). Officers

thereafter exited the cell, directing Plaintiff to remain lying

down until he heard the cell door close. (See Video 7 at 04:14 to

04:37.) Plaintiff remained on the mattress throughout this

process. (See Video 2 at 3:01:10 AM to 3:03:30 AM; Video 3 at

3:01:10 AM to 3:03:31 AM; Video 5 at 3:01:03 AM to 3:03:15 AM;

Video 6 at 3:01:08 AM to 3:03:32 AM; Video 7 at 02:06 to 04:37.)

After officers closed and locked the cell door, a medical

provider knocked on the cell door and, looking through the door’s

window, asked Plaintiff, “Do you have any injuries?” (See Video 7

04:50 to 04:59.)7 After Plaintiff responded affirmatively, the

medical provider repeatedly asked, “What are your injuries,” to

which Plaintiff responded, “I want to see a nurse,” before

ultimately saying, “my arm.” (Video 7 at 04:59 to 05:15.) The

medical provider, in turn, asked, “Any thoughts of harming

yourself,” to which Plaintiff again responded, “I want to see a

nurse.” (Id. at 05:15 to 5:19.) The medical provider subsequently

turned away from the window and reported to the officer holding the

video camera, “[Plaintiff] reports no thoughts of harming himself.

He does report injury to his hand at this time, but no visible

injuries seen. We’ll continue to monitor. [Unintelligible.]”

7 An officer also reported to the handheld camera, “zero

three, three five, inmate [Plaintiff] brought from intake. Direct

deposit. Force was used [unintelligible] 8D04.” (Video 7 at 04:37

to 04:52.)

12

(Id. at 05:20 to 05:32.) As she did so, Plaintiff continued to

loudly exclaim and say he wanted to see a nurse. (Id.)

DISCUSSION

I. Dismissal Motion

A. Relevant Standards

In reviewing a motion to dismiss pursuant to Rule 12 (b) (6) of

the Federal Rules of Civil Procedure (the “Rules”), 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.1I. du Pont de Nemours & Co. v. Kolon Indus., Inc.,

637 F.3d 435, 440 (4th Cir. 2011) (internal quotation marks

omitted). However, the Court “will not accept legal conclusions

couched as facts or unwarranted inferences, unreasonable

conclusions, or arguments.” United States ex rel. Nathan v. Takeda

Pharms. N. Am., Inc., 707 F.3d 451, 455 (4th Cir. 2013) (internal

quotation marks omitted). The Court can also “put aside any naked

assertions devoid of further factual enhancement.” SD3, LLC v.

Black & Decker (U.S.) Inc., 801 F.3d 412, 422 (4th Cir. 2015), as

amended on reh’g in part (Oct. 29, 2015) (internal quotation marks

omitted).

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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)). To qualify as plausible, a claim needs sufficient factual

content to support a reasonable inference of the defendant’s

liability for the alleged misconduct. Id. “Where a complaint

pleads facts that are merely consistent with a defendant’s

liability, it stops short of the line between possibility and

plausibility of entitlement to relief.” Id. (internal quotation

marks omitted). This standard “demands more than an unadorned,

the-defendant-unlawfully-harmed-me accusation.” Id. In other

words, “the tenet that a court must accept as true all of the

allegations contained in a complaint is inapplicable to legal

conclusions. Threadbare recitals of the elements of a cause of

action, supported by mere conclusory statements, do not suffice.”

Id. Moreover, “where the well-pleaded facts do not permit the

court to infer more than the mere possibility of misconduct, the

complaint” cannot “survive a Rule 12(b)(6) motion.” Francis v.

Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009). “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.’” Id. (quoting Iqbal, 556 U.S. at 679).

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Finally, in ruling on a Rule 12(b)(6) motion, “a court

evaluates the complaint in its entirety, as well as documents

attached or incorporated into the complaint.” E.I. du Pont, 637

F.3d at 448. The Court may also consider materials “attached to

the motion to dismiss, so long as they are integral to the

complaint and authentic.” Philips v. Pitt Cnty. Mem’l Hosp., 572

F.3d 176, 180 (4th Cir. 2009).

B. Preliminary Matters

Defendants moved to dismiss all claims in the Complaint. (See

Docket Entry 8 at 1-3.) In so doing, Defendants asserted that

(i) “[t]he official-capacity claims against the Detention Officers

are duplicative of the official-capacity claims against the

Sheriff, and should be dismissed” (Docket Entry 9 at 7 (addressing

“Claims 1-12, 21-22”)); (ii) “Forsyth County should be dismissed”

because, inter alia, “Plaintiff does not allege any acts or

omissions by the County, or assert any claims against it” and

“North Carolina’s sheriffs, not counties, are responsible for jail

and other law enforcement operations” (id. at 8); (iii) the

Complaint’s “conclusory allegations about supervision and

discipline also fall short of plausibility and should be dismissed”

(id. at 14); (iv) Plaintiff’s eighth-amendment state-created danger

claim fails because “the Eighth Amendment . . . does not apply to

pretrial detainees” and, “[i]n any event, . . . Plaintiff does not

allege harm caused by a private actor” (id.); (v) public official

15

immunity requires dismissal of “[t]he individual-capacity state law

claims” (id. at 18; see id. at 16-18); (vi) Plaintiff’s intentional

infliction of emotional distress claim fails because, among other

reasons, “Plaintiff does not identify any particular act that any

particular person (allegedly) committed” (id. at 19; see also id.

at 18); (vii) Plaintiff’s negligence claims against “the Sheriff’s

Office” (id. at 19) fail, inter alia, due to the Complaint’s lack

of “allegations of a pattern of misconduct” (id. at 20);

(viii) various negligence allegations involving the “Detention

Officers’ interactions with Plaintiff . . . . are devoid of any

plausible support, such as the contention that the officers

negligently ‘failed to use less combative, provocative, and

aggressive methods of communication with Plaintiff after his

arrest’” (id.) and, regardless, “public official immunity bars

the[]” negligence claims against Deputy Defendants (id.); (ix) any

medical-related claim fails because, “as shown on the recordings,

Plaintiff was evaluated by a nurse immediately” and, “[t]o the

extent Plaintiff meant to assert that the jail’s medical staff did

not provide appropriate care, he has not plead a plausible medical

malpractice claim under applicable law” (id. at 21 (emphasis

omitted)); (x) Plaintiff’s injury to prisoner claim fails because

the relevant statute “does not create a free-standing cause of

action that could survive dismissal” of Plaintiff’s negligence

claims and the disputed incident does not satisfy the standard for

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the statute’s application (id. at 22); (xi) Plaintiff’s battery

claim fails because, inter alia, “[d]etention officers have a right

to touch a detainee” (id.) and, “[als a result of the group

pleading, Plaintiff has not plausibly alleged that any particular

Defendant offensively touched Plaintiff” (id. at 23);

(xii) Plaintiff’s individual-capacity “Section 1983 claims against

Sheriff Kimbrough” fail because (A) the Complaint “does not allege

he was directly involved,” (id.), (B) “[t]o the extent Plaintiff

asserts Section 1983 vicarious liability claims, that theory of

recovery does not exist” (id.), and (C) any supervisory liability

claims fail due to the isolated nature of the alleged incident and

the lack of allegations “‘that would provide the foundation for

knowledge, actual or constructive, as to other instances of

constitutional vioclations’” (id. at 24); and (xiii), given the

Complaint’s allegations, “[p]unitive damages are .. . unavailable

as a matter of law” (id. at 25).

Plaintiff did not respond to these arguments. (See Docket

Entry 16 at 1-8.) Instead, Plaintiff’s Response contends only that

(i) Plaintiff’s negligence and Section 1983 claims against Deputy

Defendants satisfy “the pleading requirements of Rule 8” (id. at

4); (11) Plaintiff’s “Complaint alleges facts necessary to overcome

qualified immunity” (id. at 5); (i111) Plaintiff “sufficiently pled

a claim based on failure to train” (id. at 7); and (iv) “Forsyth

[County] has waived governmental immunity” (id. at 8). As courts

17

have repeatedly recognized, “a party who fails to address an issue

has conceded the issue,” Kinetic Concepts, Inc. v. Convatec Inc.,

No. 1:08cv918, 2010 WL 1667285, at *8 (M.D.N.C. Apr. 23, 2010)

(collecting cases). See id. at *6-9; see also Grayson O Co. v.

Agadir Int’l LLC, 856 F.3d 307, 316 (4th Cir. 2017) (explaining

that “[a] party waives an argument by failing to present it in

[his] opening brief or by failing to develop [his] argument — even

if [his] brief takes a passing shot at the issue” (internal

quotation marks omitted)). Accordingly, the Court should grant

Defendants’ request to dismiss all claims other than Plaintiff’s

Section 1983 excessive force claim against Deputy Defendants,

Plaintiff’s official-capacity negligence claim against Sheriff

Kimbrough, and Plaintiff’s failure to train claim. See Grayson,

856 F.3d at 316; Kinetic, 2010 WL 1667285, *6-9.

C. Remaining Claims

Plaintiff’s remaining claims hinge on the Complaint’s

assertion that Deputy “Defendants used excessive force to remove

Plaintiff’s clothing and deposit Plaintiff into a cell” (Docket

Entry 5, FI 22), by “violently throw[ing him] against the cell walls

and the floor” (id., 7 23), causing him various injuries, including

a broken jaw, wrist pain, and vision damage (id., @ 25).°

8 Notably, the lawyer-drafted Complaint lacks any further

factual development regarding the alleged excessive force, instead

relying on conclusory assertions such as “[Deputy Defendant] failed

to use reasonable force with Plaintiff when removing his clothes

and depositing him in his cell” (Docket Entry 5, @ 60) and

18

Contending that “[t]he recordings of the intake process . . .

plainly show that Plaintiff was not thrown against the cell walls

or floor at all,” Defendants maintain that “Plaintiff’s [C]omplaint

should be dismissed.” (Docket Entry 9 at 2.) Defendants’ position

should prevail.

As discussed above, Plaintiff’s Complaint explicitly relies

upon the video recordings. (See Docket Entry 5, ¶ 22 (“The video

of the encounter shows that Defendants used excessive force to

remove Plaintiff’s clothing and deposit Plaintiff into a cell.”).)

The parties all rely on the submitted videos in support of their

positions on Defendants’ Dismissal Motion (see, e.g., Docket Entry

9 at 2 (arguing that videos debunk allegations of excessive force);

Docket Entry 16 at 4 (“From the[] facts” alleged “in paragraphs 20

through 25” of the Complaint “and the seven videos attached to

Defendants’ [Dismissal Motion], the Court can draw reasonable

inference of negligence and violation of [Plaintiff’s]

Constitutional Rights necessary to support a violation of Section

1983.”)), and Plaintiff does not dispute the authenticity of the

videos (see Docket Entry 16 at 1-8). Because the videos qualify as

“integral to the [C]omplaint and authentic,” the Court may properly

“Defendants failed to maintain appropriate use of force with

detainee/arrestee” (id., ¶ 55). In evaluating a Rule 12(b)(6)

motion, however, the Court disregards “naked assertions devoid of

further factual enhancement,” SD3, 801 F.3d at 422, and “legal

conclusions couched as facts,” Takeda Pharms., 707 F.3d at 455

(internal quotation marks omitted). Accordingly, those allegations

cannot salvage the Complaint.

19

consider them in resolving the Dismissal Motion. Philips, 572 at

180; see also, e.g., ZSigray v. County Comm’n of Lewis Cnty., 709

F. App’x 178, 179 (4th Cir. 2018) (concluding that, where “[the

plaintiff] stated several times in his complaint that a video

recording of the incident supported his version of the facts

. . .[,] the district court’s consideration of the video [in

connection with Rule 12(b) (6) motion] was permissible,” as “[t]he

video, to which [the plaintiff] referred several times to

authenticate his version of events, was integral to the complaint”

and “the authenticity of the video was not in question”).

The videos establish that Deputy Defendants did not throw

Plaintiff against the cell wall or the cell floor. (See, e€.g.,

Video 7 at 02:00 to 04:37.) Instead, after Plaintiff knelt down on

a mattress on the cell floor, various officers shifted him into a

prone position on the mattress, where he remained for the rest of

the encounter. (See, e.g., id.) The videos further establish that

a medical provider visually and verbally assessed Plaintiff as soon

as the officers exited his cell. (See id. at 04:50 to 05:32.)

Because the videos conclusively disprove the Complaint’s factual

allegations, the Court should grant the Dismissal Motion. See,

e.g., 4sigray, 709 F. App’x at 179 (affirming dismissal of

complaint where video disproved complaint’s allegations); see also

Scott v. Harris, 550 U.S. 372, 380-81 (2007) (explaining, in

assessing summary judgment ruling where video evidence “blatantly

20

contradicted” party’s allegations, that when a party’s “version of

events is so utterly discredited by the record that no reasonable

jury could have believed him,” a court “should not . . . rel[y] on

such visible fiction[, but should instead] view[] the facts in the

light depicted by the videotape”).

Plaintiff attempts to forestall this outcome by amending his

allegations in his Response. (See Docket Entry 16 at 2-3, 6-7.)

In particular, the Response (i) asserts that officers used improper

force against Plaintiff in the elevator, (ii) criticizes their use

of pressure point and pain-control techniques, and (iii) compares

Plaintiff’s encounter with officers to “several Forsyth deputies[’]

. . . use of force against John Neville, which resulted in his

death, due to positional and compressional asphyxia during a prone

restraint” in December 2019 (id. at 7). (See id. at 2-3, 6-7.)

This effort fails, however, because “[a plaintiff] is bound by the

allegations contained in [hi]s complaint and cannot, through the

use of motion briefs, amend the complaint,” Zachair, Ltd. v.

Driggs, 965 F. Supp. 741, 748 n.4 (D. Md. 1997), aff’d, 141 F.3d

1162 (4th Cir. 1998). See, e.g., Morgan Distrib. Co., Inc. v.

Unidynamic Corp., 868 F.2d 992, 995 (8th Cir. 1989) (“[I]t is

axiomatic that a complaint may not be amended by the briefs in

opposition to a motion to dismiss. To hold otherwise would mean

that a party could unilaterally amend a complaint at will, even

without filing an amendment, and simply by raising a point in a

21

brief.” (citations and internal quotation marks omitted)); see

also Days v. U.S. Bank Nat’l Ass’n, No. 3:18cv440, 2019 WL 8619628,

at *2 (W.D.N.C. June 4, 2019) (“In order to amend their complaint,

[the p]laintiffs may not simply add allegations to their already

existing complaint as they have done here. Rather, they must

submit a proposed amended complaint that contains all claims they

intend to bring in this action against all [the d]efendants they

intend to sue. That is, [the p]laintiffs may not amend their

complaint in piecemeal fashion.” (emphasis omitted)). Accordingly,

Plaintiff cannot stave off dismissal through the Response’s new

allegations.

The Court should thus grant Defendants’ Rule 12(b)(6) request

to dismiss the Complaint.9

II. Sealing Motion

“[O]ut of an abundance of caution” (Docket Entry 12 at 7),

Defendants also moved to seal the videos submitted in support of

the Dismissal Motion. (See generally Docket Entry 12.) Plaintiff

opposes such action, instead “request[ing] that the Court deny

Defendants’ [Sealing M]otion” (Docket Entry 15 at 5). (See id. at

1-5.)

“[T]he courts of this country recognize a general right to

inspect and copy . . . judicial records and documents.” Nixon v.

9 In light of this outcome, the Court need not determine the

extent to which, if any, the purchase of insurance waived

governmental immunity for Sheriff Kimbrough and Forsyth County.

22

Warner Commc’ns, Inc., 435 U.S. 589, 597 (1978). “The right of

public access to documents or materials filed in a district court

derives from two independent sources: the common law and the First

Amendment.” Virginia Dep’t of State Police v. Washington Post, 386

F.3d 567, 575 (4th Cir. 2004). “[T]he common law presumption in

favor of access attaches to all ‘judicial records and documents,’”

but “the First Amendment guarantee of access has been extended only

to particular judicial records and documents.” Stone v. University

of Md. Med. Sys. Corp., 855 F.2d 178, 180 (4th Cir. 1988) (quoting

Nixon, 435 U.S. at 597).

“When presented with a request to seal judicial records,” the

Court begins by “determin[ing] the source of the right of access

with respect to each document,” as “only then can it accurately

weigh the competing interests at stake.” Virginia Dep’t of State

Police, 386 F.3d at 576 (internal quotation marks and brackets

omitted). “Th[e common-law] presumption of access . . . can be

rebutted if countervailing interests heavily outweigh the public

interests in access.” Rushford v. New Yorker Mag., Inc., 846 F.2d

249, 253 (4th Cir. 1988). The relevant factors include “whether

the records are sought for improper purposes, such as promoting

public scandals or unfairly gaining a business advantage; whether

release would enhance the public’s understanding of an important

historical event; and whether the public has already had access to

the information contained in the records.” In re Knight Publ’g

23

Co., 743 F.2d 231, 235 (4th Cir. 1984). Under the more stringent

first-amendment standard, the Court may seal material “only on the

basis of a compelling governmental interest, and only if the denial

[of access] is narrowly tailored to serve that interest.” Stone,

855 F.2d at 180.

Under either standard, the Court must then evaluate the

competing interests via the following approach. First, “it must

give the public notice of the request to seal and a reasonable

opportunity to challenge the request.” Virginia Dep’t of State

Police, 386 F.3d at 576.'° Next, “it must consider less drastic

alternatives to sealing.” Id. Finally, “if it decides to seall[,]

it must state the reasons (and specific supporting findings) for

its decision and the reasons for rejecting alternatives to

sealing.” Id. “Adherence to this procedure serves to ensure that

the decision to seal materials will not be made lightly and that it

will be subject to meaningful appellate review.” Id. This

approach also reflects the reality that “[t]he operations of the

courts and the judicial conduct of judges are matters of utmost

public concern,” Landmark Commc’ns, Inc. v. Virginia, 435 U.S. 829,

839 (1978), as well as that “the public’s business is best done in

10 The Sealing Motion has appeared on the public docket since

July 2023. (See Docket Entry 12.) All interested persons thus

have received “notice of the request to seal and a reasonable

opportunity to challenge the request,” Virginia Dep’t of State

Police, 386 F.3d at 576, yet the Docket reflects no objections to

the Sealing Motion from any non-parties (see Docket Entries dated

July 31, 2023, to present).

24

public,” Cochran v. Volvo Grp. N. Am., LLC, 931 F. Supp. 2d 725,

727 (M.D.N.C. 2013).

Here, Defendants seek to seal exhibits in support of their

Dismissal Motion, a dispositive motion. (See Docket Entry 12 at 1-

3.) Accordingly, the more-rigorous first-amendment standard

applies to their request. see, _e.g., United States ex rel.

Johnston v. Bank of Am., N.A., No. 1:21cv273, 2023 WL 5320094, at

*3 (M.D.N.C. Aug. 18, 2023) (“Here, the Court applies the First

Amendment standard as the motion to seal has been filed in

connection with [a] motion to dismiss and relates to the

[complaint].”), report and recommendation adopted, 2023 WL 6314318

(M.D.N.C. Sept. 28, 2023); Kluttz v. North Carolina, No. 1:20cv647,

2021 WL 4170429, at *3 (M.D.N.C. Sept. 14, 2021) (“Turning to the

substance of the Sealing Motion, because the Court considered the

Petition and Respondent’s Proposed Exhibits in connection with its

ruling on Respondent’s Motion to Dismiss, the First Amendment

confers the public’s right of access to those documents.”), appeal

dismissed, No. 21-7361, 2022 WL 986678 (4th Cir. Mar. 31, 2022).

Therefore, the Court may grant Defendants’ request “only on the

basis of a compelling governmental interest and only if the denial

of access is narrowly tailored to serve that interest.” Robinson

v. Bowser, No. 1:12cv301, 2013 WL 3791770, at *3 (M.D.N.C. July 19,

2013) (internal quotation marks and brackets omitted); see

also Kluttz, 2021 WL 4170429, at *3 (explaining that, where first-

25

amendment standard applies, party requesting sealing “must show

that a ‘compelling governmental interest’ supports its Sealing

Motion, and that its request ‘is narrowly tailored to serve that

interest’”).

As grounds for their sealing request, Defendants argue that,

“[i]n the normal course, North Carolina’s General Statutes restrict

Defendants’ handling of the video recordings at issue here.”

(Docket Entry 12 at 5.) Defendants concede, however, that “[t]he

Middle District has held that the strict procedural requirements of

[the relevant state statute] do not apply to the handling of law

enforcement recordings in, at least, the formal portions of federal

litigation.” (Id. at 6.) Defendants further assert that “[t]he

Middle District has previously sealed [bodyworn camera footage]

submitted with a dispositive motion. See Smith[ v. City of

Greensboro, No. 1:19cv386], 2022 WL 18859223, at *3 [(M.D.N.C. Oct.

24, 2022)] (applying good cause standard).” (Docket Entry 12 at

8.) Notably, unlike here, in the case upon which Defendants rely

for that proposition, the Court did not consider the relevant

material in adjudicating any motions, let alone dispositive

motions. See Smith, 2022 WL 18859223, at *3 (“Here, the good cause

standard applies to each of the temporarily sealed documents at

issue, because the Court has not taken up and ruled upon the

motions to which they relate. Instead, the Court is denying those

motions as moot, as the parties agreed in their settlement. In

26

other words, the Court is not using the temporarily sealed

exhibits, or the temporarily sealed portions of pleadings, to

determine the litigants’ substantive rights, and the temporarily

sealed filings have not played a relevant and useful role in the

adjudicative process.”). In contrast, this case mirrors situations

where, as Defendants concede, the Court has refused to “seal[] law

enforcement recordings” (Docket Entry 12 at 8 (“recogniz[ing] that

the Court has also reached contrary decisions on the question of

sealing law enforcement recordings submitted with summary judgment

motions”)). See, e.g., Anderson v. Winston-Salem Police Dep’t, No.

1:20cv596, 2022 WL 3586022, at *16-17 (M.D.N.C. Aug. 22, 2022)

(denying motion to seal bodyworn camera footage considered in

evaluating summary judgment motion), report and recommendation

adopted sub nom., Anderson v. Ferguson, No. 1:20cv596, 2022 WL

4237518 (M.D.N.C. Sept. 14, 2022).

Finally, Defendants maintain that “[t]he privacy interests

associated with the nudity visible in the recordings, and a medical

assessment, unless waived by Plaintiff, constitute a compelling

governmental interest, particularly in conjunction with North

Carolina’s public policy interests as set out in the statute.”

(Docket Entry 12 at 7-8.)11 According to Plaintiff, however,

11 Defendants also identify as a “consideration for sealing”

that, “[m]ore generally, the videos depict operations within the

jail and the transport of Plaintiff through the facility.” (Id. at

6.) Defendants neither develop this point nor contend that this

aspect of the videos, by itself, creates a compelling government

27

“[t]hese matters do not cause Plaintiff concern. Nor are they a

valid basis for denying access to the footage in question.”

(Docket Entry 15 at 5.) Given Plaintiff’s position, these interest

do not warrant sealing the video footage. See Anderson, 2022 WL

3586022, at *17.

Under the circumstances, the Court will deny Defendants’

request to seal the video footage. See id.

CONCLUSION

Plaintiff failed to oppose many of Defendants’ dismissal

arguments and the video footage conclusively disproves Plaintiff’s

remaining claims. In turn, Defendants failed to justify sealing

the video footage.

IT IS THEREFORE RECOMMENDED that Defendants’ Dismissal Motion

(Docket Entry 8) be granted and Plaintiff’s Complaint be dismissed

under Rule 12(b)(6) for failure to state a claim upon which relief

can be granted.

IT IS FURTHER ORDERED that the Sealing Motion (Docket Entry

12) is DENIED. The Clerk shall unseal videos one through seven,

interest. (See id. at 1-9.) Accordingly, they fail to justify

sealing on this basis. See, e.g., Grayson, 856 F.3d at 316.

28

filed as exhibits to the Declaration of Joel Surratt. (See Docket

Entry 13 at 1 (noting manual filing under temporary seal).)

This 9th day of January, 2024.

/s/ L. Patrick Auld

L. Patrick Auld

United States Magistrate Judge

29