# GREEN v. JOHNSON

> District Court, M.D. North Carolina · June 11, 2024

URL: https://www.frixlaw.com/law-library/cases/10254552

## Case

- **Court:** District Court, M.D. North Carolina
- **Decided:** June 11, 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/10254552

## How later opinions describe it (automated extraction)

- noting the reasonableness of an officer’s actions requires evaluation of all the circumstances and finding that use of handcuffs on compliant 10-year-old during arrest made at school was excessive under the particular circumstances
- discussing guiding principles for deciding whether agent is policymaker or implemented an unconstitutional municipal policy
- noting that a “public official, 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”
- stating requirements for bringing a claim of malicious prosecution or unconstitutional conviction
- stating defendant’s conclusory argument with nothing more would not suffice

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

REGIS KISHON GREEN, )
)
Plaintiff, )
)
v. ) 1:23-CV-969
)
TERRY S. JOHNSON, individually )
and in his official capacity as Sheriff of )
Alamance County, et al., )
)
Defendants. )

MEMORANDUM OPINION AND ORDER
Catherine C. Eagles, District Judge.
The plaintiff, Regis Green, brings this civil rights action against Terry Johnson, the
Sheriff of Alamance County, and a number of deputy sheriffs, contending that they
violated his constitutional rights during and after a County Commissioners’ meeting on
November 16, 2020. He also asserts various state law claims against the defendants.
Defendant Alston filed a motion to dismiss, and the other defendants filed a joint motion
to dismiss. Those motions will be granted in part and denied in part.
I. Overview of Allegations
In brief overview and with no attempt to recite all of the detailed, material facts
alleged, the complaint alleges the following:
Mr. Green, a longtime Black activist, participated in a peaceful public protest on
October 31, 2020, in Alamance County where he and others were pepper-sprayed by law
enforcement. Doc. 1 at ¶¶ 1–2, 10, 23, 28 30–32. He was arrested for refusing to leave
the protest area. Id. at ¶ 33. These charges were later dismissed. Id. at ¶ 34.

Mr. Green attended a County Commissioners’ meeting on November 16, 2020, in
hopes of speaking about the use of force by county law enforcement officers during the
peaceful protest. Id. at ¶¶ 36, 39–40. During the meeting, he and many others had
difficulty finding seats in authorized areas because of COVID-19 social distancing rules.
Id. at ¶¶ 45–46. He was harassed by defendants Parker and Fortner, both deputy sheriffs,
while white attendees with similar difficulties were not. Id. at ¶¶ 47–48. Mr. Parker also

threatened him. Id. at ¶¶ 47, 49.
The meeting ended with no opportunity for the public to speak. Id. at ¶¶ 52–53.
Mr. Green and others voiced their displeasure. Id. at ¶¶ 53–54.
It was difficult for attendees to leave because of the crowd, which included many
sheriff’s deputies. Id. at ¶ 57. As Mr. Green approached the exit, Mr. Parker pointed at

Mr. Green, laughing and taunting him. Id. at ¶¶ 58–59. Mr. Green used colorful but not
violent language to tell Mr. Parker to leave him alone, id. at ¶ 60, but instead Mr. Parker
told other deputy sheriffs to “get him, F-ing get him.” Id. at ¶ 64.
As Mr. Green peacefully moved out of the meeting room, id. at ¶¶ 61–63, other
officers physically restrained him, without warning, without any order being given to Mr.

Green, and without any notification that he was under arrest. Id. at ¶¶ 68–73. He was
thrown to the floor, held down, punched repeatedly, and otherwise assaulted by various
deputy sheriffs while other deputies, including Mr. Parker, stood by and did not intervene.
Id. at ¶¶ 74–82. Defendants Ray and England, both deputies, moved Mr. Green to an
elevator, id. at ¶ 99, where Mr. Ray called him names, used a racial slur, threatened him,
and further assaulted him while Mr. England did nothing. Id. at ¶¶ 100–06. At no time

was Mr. Green a physical threat and he never intentionally disobeyed any order. See id.
at ¶¶ 103, 107–08; see also id. at ¶ 81 (Mr. Green was handcuffed).
Officers placed Mr. Green in a holding cell alone, id. at ¶ 115, while white
arrestees were held together not in a holding cell. Id. at ¶¶ 113, 132. The defendants also
arrested four other attendees, all white, on the same or similar charges. Id. at ¶¶ 110–13.
None were assaulted. Id. at ¶ 131. Mr. Green received physical injuries during these

assaults and has been treated for depression. Id. at ¶¶ 120–25.
Mr. Green was charged with violating N.C. Gen. Stat. § 14-223(a), id. at ¶ 142,
which makes it a misdemeanor to “willfully and unlawfully resist, delay or obstruct a
public officer in discharging or attempting to discharge an official duty.” Id. at ¶ 143. He
has been convicted of this charge. Id. at ¶ 148.

II. Claims
Mr. Green asserts five claims under 42 U.S.C. § 1983 for violations of his
constitutional rights. First, he asserts a violation of his First Amendment rights,
contending that the conduct of the various defendants before and after the November 16
meeting was undertaken to suppress and restrict his speech or to retaliate against him for

that speech. Id. at ¶¶ 156–72. Second, he contends that all the defendants used excessive
force against him. Id. at ¶¶ 173–85. Third, he asserts that the defendants violated his
Fourteenth Amendment Equal Protection rights because the defendants treated him
differently from other persons in the same situation, specifically, by harassing him and
other Black attendees but not white attendees during and after the hearing and by
assaulting him but not white arrestees during and after arrest, selectively targeting him

because of his race. Id. at ¶¶ 186–96. Fourth, he alleges that the defendants conspired
against him to violate all of these constitutional rights. Id. at ¶¶ 197–209. Finally, he
also contends that his conviction for resisting an officer is unconstitutional under the First
Amendment because the state statute is overbroad and because as applied to him it
punishes only speech. Id. at ¶¶ 210–15.
Mr. Green also brings a number of state claims associated with the assault and

physical violence directed towards him during and after arrest. These include claims for
assault, id. at ¶¶ 216–20; battery, id. at ¶¶ 221–26, negligence, id. at ¶¶ 227–32; negligent
infliction of emotional distress, id. at ¶¶ 233–39, and intentional infliction of emotional
distress. Id. at ¶¶ 240–45.
III. Discussion

A. Claims Based on the October Protest
The defendants note that any claims arising out of how Mr. Green was treated
during the October 31, 2020, protest are barred by the statute of limitations. While Mr.
Green’s complaint does not explicitly assert such a claim, it does allege that he was
injured that day, arguably as a result of unlawful conduct by unnamed law enforcement

officers. See, e.g., id. at ¶¶ 1–2. Mr. Green has not disagreed with the defendants that the
statute of limitations would bar any such claims. See Doc. 21 at 4 n.2 (Mr. Green’s brief
noting that the October 31 events are offered for context). Any such claims will be
dismissed, to the extent they are asserted.
Whether and to what extent evidence about the events of October 31 might be
relevant is a question for another day.

B. First Cause of Action: First Amendment
Mr. Green contends that by harassing, threatening, and arresting him, the
defendants restricted his right to speak and assemble and retaliated against him for use of
protected speech. See Doc. 1 at ¶¶ 156–72. He alleges that Mr. Parker ordered his arrest
while he was peacefully exiting the courtroom in retaliation for Mr. Green’s protected
speech. Id. at ¶ 165. He alleges that defendants Sykes, England, Ray, Alston, and other

Doe defendants arrested him with unnecessary force during and after the arrest to
suppress Mr. Green’s speech, and that Mr. Parker approved of and ratified their actions.
Id. at ¶¶ 166–67. The defendants move to dismiss this claim based on Heck v. Humphrey
and Rooker-Feldman, pointing out that Mr. Green’s complaint itself acknowledges that he
was convicted of the crime for which he was arrested, which shows probable cause. See

Doc. 16 at 6–8; Doc. 18 at 6–11.
As the defendants say, the existence of probable cause to arrest generally defeats a
§ 1983 retaliatory arrest claim. Nieves v. Bartlett, 587 U.S. 391, 405 (2019); Nazario v.
Gutierrez, --- F.4th ---, No. 23-CV-1620, 2024 WL 2787963, at *17 (4th Cir. May 31,
2024); see also Elkins v. Broome, 328 F. Supp. 2d 596, 599 (M.D.N.C. 2004) (noting that

“Plaintiff’s guilty verdict demonstrates that Defendant had probable cause to seek a
warrant”). The defendants also contend they are entitled to qualified immunity on the
wrongful arrest claim because there was probable cause to arrest, which is essentially the
same argument. While this rule may limit the plaintiff’s First Amendment claim, it does
not preclude it.

Mr. Green’s claim is not predicated solely on his arrest. His claim as pled relies on
numerous other facts plausibly constituting retaliation, including harassment, threats, and
physical force. To this extent, the claim is not a retaliatory arrest claim and is not barred
by Heck and its progeny. See 512 U.S. 477, 484–87 (1994) (stating requirements for
bringing a claim of malicious prosecution or unconstitutional conviction). Even as a
retaliatory arrest claim, it survives to the extent it is based on allegations that he was

treated differently from other similarly situated persons who did not engage in the kinds
of protected speech Mr. Parker allegedly did not like and who were not arrested; these
allegations potentially bring this claim within an exception to the usual rule that probable
cause to arrest defeats a § 1983 First Amendment retaliatory arrest claim. See Nieves,
587 U.S. at 407 (holding “that the no-probable-cause requirement should not apply when

a plaintiff presents objective evidence that he was arrested when otherwise similarly
situated individuals not engaged in the same sort of protected speech had not been”).1

1 The plaintiff says that “a First Amendment retaliation claim is not defeated by probable
cause to arrest where the retaliation was for prior protected speech,” Doc. 22 at 6, citing Lozman
v. City of Riviera Beach, 585 U.S. 87 (2018). Lozman was a case against a city, not individual
officers, and arose on facts not like those here. Moreover, the plaintiff’s assertion is inconsistent
with the Supreme Court’s decision a year later. Nieves, 587 U.S. at 404 (holding that absent a
showing of no probable cause or objective evidence of different treatment than others similarly
situated, a retaliatory arrest claim fails). The plaintiff did not mention the other narrow exception
identified in Nieves, which does not seem to apply here. See Nazario, 2024 WL 2787963, at *17
n.11 (stating that “in circumstances where the ‘officers have probable cause to make arrests, but
typically exercise their discretion not to do so,’ the existence of probable cause will not vitiate a
retaliatory arrest claim” and citing Nieves).
Similarly, as to this claim, Mr. Green is not seeking damages for injury caused by
the conviction, and he is not asking the Court to review and reject the state court

judgment, so Rooker-Feldman does not require dismissal for lack of subject matter
jurisdiction. See Lucas v. Henrico Cnty. Pub. Sch. Bd., 767 F. App’x 444, 447 (4th Cir.
2019). While there may well be some overlap in the issues presented in his criminal case
and those presented here, it is not yet apparent that this claim is “inextricably
intertwined” with an existing state court decision. See D.C. Ct. of Appeals v. Feldman,
460 US 462, 486–87 (1983). As the Fourth Circuit has noted, “where the federal

complaint presents an independent claim, even one that denies a legal conclusion that a
state court has reached in a case to which he was a party, then there is jurisdiction.”
Jonathan R. by Dixon v. Justice, 41 F.4th 316, 340 (4th Cir. 2022) (cleaned up).
As an additional basis for his motion to dismiss this claim, Mr. Alston contends
that the facts as alleged show that he was not present for the events that led to Mr.

Parker’s decision to arrest Mr. Green and so he cannot be liable for a retaliatory arrest in
violation of Mr. Green’s First Amendment rights. Doc. 16 at 11–12. That is a fair
reading of the complaint; Mr. Green alleges that his protected speech was uttered while
he was in the meeting room, Doc. 1 at ¶¶ 58–60, that Mr. Alston was outside the meeting
room, id. at ¶¶ 64, 66, and that Mr. Parker told Mr. Alston and others to arrest Mr. Green

as he stepped out of the meeting room. Id. at ¶ 66. There are no facts alleged tending to
indicate that Mr. Alston participated in the harassment or threats made while Mr. Green
was inside the meeting room.
“Generally, an assisting officer is entitled to rely on the probable cause
determination of the arresting officer and may receive qualified immunity as long as the

reliance is reasonable.” Wong v. Guilford Cnty. Sheriff Dep’t, No. 23-CV-223, 2024 WL
85548, at *12 (M.D.N.C. Jan. 8, 2024) (cleaned up and collecting cases); accord, e.g.,
Rose v. Centra Health, Inc., No. 17-CV-12, 2017 WL 3392494, at *4 (W.D. Va. Aug. 7,
2017) (collecting cases). Mr. Green does not address this argument or provide any case
law to the contrary. The motion to dismiss the retaliatory arrest claim against Mr. Alston
will be granted.

C. Second Cause of Action: Fourth Amendment (Excessive Force)
Mr. Green contends that by subjecting him to excessive force, or standing by while
others used obviously excessive force, defendants Sykes, England, Ray, Alston, and other
Doe defendants violated his Fourth Amendment rights, Doc. 1 at ¶¶ 175–80, and that by
approving and ratifying their conduct, Mr. Parker did the same. Id. at ¶ 181. He also

contends that Mr. Parker and Mr. Johnson are responsible for the violation because they
failed to investigate the deputies for the excessive force or to discipline any officers for it.
Id. at ¶¶ 181–84.
The defendants contend that Mr. Green’s state court conviction means that the
excessive force claim cannot proceed. Doc. 18 at 10–11. Neither probable cause to

arrest nor a conviction excuse the use of excessive force; it is and has been well-
established that during a lawful arrest the use of force must be reasonable and cannot be
excessive, viewed objectively. See Smith v. Ray, 781 F.3d 95, 100–01, 103 (4th Cir.
2015) (holding no reasonable officer could believe a person’s “initial act of pulling her
arm away when [the law enforcement officer] grabbed her without warning or
explanation justified [the officer’s] decision to throw her down, jam his leg into her back,
and wrench her arm behind her”).2 The right to arrest usually involves the right to use at

least a minimal degree of physical force, such as using handcuffs or taking hold of an
arm, but the degree of force allowed by the Fourth Amendment is dependent on the
circumstances. See, e.g., E.W. ex rel. T.W. v. Dolgos, 884 F.3d 172, 179, 183–84 (4th Cir.
2018) (noting the reasonableness of an officer’s actions requires evaluation of all the
circumstances and finding that use of handcuffs on compliant 10-year-old during arrest

made at school was excessive under the particular circumstances).
Here, Mr. Green has alleged that without giving him any instructions or directions
that he could physically meet, some of the defendants threw him to the ground, held him
down, repeatedly punched him, pressed his throat to the floor, and violently twisted his
arms, Doc. 1 at ¶¶ 73–80, all while other defendants stood by and did not intervene. Id.

at ¶ 82. He alleges no facts tending to indicate that he was not compliant during the
arrest, other than acknowledging he could not comply with Mr. Ray’s instruction to “put
his arms behind his back . . . because his arms were pinned beneath him.” Id. at ¶ 78. He
also alleges that thereafter, while he was handcuffed, Mr. Ray slammed him into an
elevator wall, id. at ¶ 103, while Mr. England stood by and did not intervene. Id. at

¶ 106. Then the defendants denied and ridiculed his requests for medical treatment. Id.

2 See also, e.g., Graham v. Connor, 490 U.S. 386, 397 (1989); Elliott v Leavitt, 99 F.3d 640,
642 (4th Cir. 1996); Bottom v. City of Salisbury, No. 21-CV-322, 2023 WL 5207983, at *11–13
(M.D.N.C. Aug. 14, 2023).
at ¶ 109. Some or all of this conduct, if true, could plausibly constitute a constitutional
violation for excessive force prohibited by the Fourth Amendment. Nothing about such a

finding would undermine his conviction for a crime that occurred before Mr. Green was
arrested and was the purported impetus for his arrest.
Mr. Alston contends he is entitled to qualified immunity because the facts alleged
show that Mr. Green was resisting arrest. That view of the allegations does not take the
facts in the light most favorable to the plaintiff, which is the standard at the motion to
dismiss stage. See Langford v. Joyner, 62 F.4th 122, 124 (4th Cir. 2023). Mr. Green

alleges he was compliant the entire time, and he alleges that the physical assaults by Mr.
Alston and those in Mr. Alston’s presence continued over time. Every reasonable officer
knew in 2020 that it was not constitutional to use excessive force when arresting someone
who was not resisting and who was compliant. See, e.g., Yates v. Terry, 817 F.3d 877,
885–86 (4th Cir. 2016); Jones v. Buchanan, 325 F.3d 520, 534 (4th Cir. 2003). Whether

it was possible or impossible for Mr. Green to comply raises a factual issue better
addressed on a more developed record. See generally Nazario, 2024 WL 2787963, at
*13, *15 (noting that when conflicting orders are given and it is impossible to comply
with both, a person is not necessarily refusing to comply).
D. Third Cause of Action: Fourteenth Amendment Equal Protection

Mr. Green alleges that Mr. Parker harassed him and threatened him during the
County Commissioners’ meeting and ordered his arrest based on his race. Doc. 1 at
¶¶ 186–90, 195. He alleges that defendants Sykes, England, Ray, Alston, and other Doe
defendants used unnecessary force during the arrest, assaulting him but not white
attendees who were also arrested. Id. at ¶¶ 192–93. The defendants contend this claim
should be dismissed based on Heck and Rooker-Feldman. This motion will be denied for

the same reasons discussed supra as to the First Amendment claim. See also Lucas, 767
F. App’x at 447.
Mr. Alston also contends that the complaint “does not allege any specific conduct”
by Mr. Alston that “was motivated by a discriminatory intent.” Doc. 16 at 17. He again
does not view the allegations in the light most favorable to the plaintiff. While the
allegations are thin as to Mr. Alston, viewed as a whole, they raise a plausible equal

protection claim against him. Whether Mr. Green can flesh this claim out with the
additional facts needed to prove it is a question for another day.
E. Fourth Cause of Action: Conspiracy to Deprive of Civil Rights
Mr. Green contends that the defendants conspired with each other to violate Mr.
Green’s First Amendment rights in the ways set forth in the first and third causes of

action with the intent to suppress and restrict his speech and that this conspiracy further
violated his constitutional rights under the First Amendment. Doc. 1 at ¶¶ 197–209. All
the defendants move to dismiss this claim on various grounds.
This claim will be dismissed because an entity cannot conspire with itself. See
Buschi v. Kirven, 775 F.2d 1240, 1251–52 (4th Cir. 1985). This precept applies in civil

rights cases. Id. at 1252–53. All the defendants are alleged to be county actors: the
county itself, the sheriff, and the deputy sheriffs. Doc. 1 at ¶¶ 11–18. All the individuals
are alleged to have acted within the scope of their employment with the county. Id. at
¶¶ 11–16 (named individual defendants); id. at ¶ 18 (Doe defendants). Mr. Green has not
addressed the defendants’ arguments or pointed to any reason why this rule should not
apply to his case. The Court is not obligated to conduct legal research to determine if

there might be a way around the defendants’ arguments.
F. Fifth Cause of Action: First Amendment
Mr. Green alleges that he was arrested for, charged with, and convicted of
violating N.C. Gen. Stat. § 14-223(a), which makes it a Class 2 misdemeanor to willfully
and unlawfully resist, delay, or obstruct a public officer in discharging or attempting to
discharge an official duty. Id. at ¶¶ 142–43, 148. He contends that this statute is facially

unconstitutional and unconstitutional as applied to him, and that his conviction is
unconstitutional. Id. at ¶¶ 211–12, 215.
This claim will be dismissed because “civil tort actions are not appropriate
vehicles for challenging the validity of outstanding criminal judgments.” Heck, 512 U.S.
at 486. To recover for an allegedly unconstitutional conviction, a § 1983 plaintiff must

plausibly allege that the conviction or sentence has been reversed on direct appeal,
expunged by executive order, declared invalid by a state tribunal authorized to make such
determination, or called into question by a federal court’s issuance of a writ of habeas
corpus. Id. at 486–87; see also, e.g., Sheridan v. Shekita, No. 16-CV-3085, 2016 WL
9083355, at *2 (E.D.N.C. Oct. 31, 2016) (quoting Heck, 512 U.S. at 487 (1994)), aff’d,

678 F. App’x 145 (4th Cir. 2017). In the absence of this invalidation, the claim “is not
cognizable under § 1983.” Heck, 512 U.S. at 487.
Here, Mr. Green explicitly alleges that he has been convicted of the crime, Doc. 1
at ¶ 148, and nowhere does he allege that the conviction has been invalidated. He
contends that his conviction is unconstitutional because the statute of conviction is
unconstitutional on its face and as applied to him. Id. at ¶ 212. He makes no strong

argument explaining why this cause of action can proceed in the face of clear case law to
the contrary. The Court need not reach the defendants’ other arguments in support of
dismissal of this claim.
G. Official Capacity Claims
Mr. Green sues all the defendants in their individual and official capacities.
Official capacity suits are a way of “pleading an action against an entity of which an

officer is an agent.” Kentucky v. Graham, 473 U.S. 159, 165 (1985). More than an
agency relationship is required, as there is no respondeat superior liability for § 1983
violations. See, e.g., Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978). For the
official capacity claims to proceed, there must be plausible allegations of a government’s
policy or custom. Id. at 694.

The defendants move to dismiss the official capacity claims, contending that as to
the § 1983 claims, the allegations of a policy or custom are insufficient. Doc. 18 at 20–
23. The plaintiff does not contend otherwise as to anyone other than Mr. Parker and Mr.
Johnson. Doc. 21 at 12–13. As to Mr. Parker and Mr. Johnson, the plaintiff contends that
those officers are officials for Monell purposes because their acts may fairly be said to

represent official policy, and he relies on his allegations that their ratification of the acts
of the other defendants subjects the defendants to official capacity liability. Id.
The official capacity claims will be dismissed. Among other reasons, there are no
facts plausibly suggesting a policy or custom, the allegations of ratification are so
conclusory as to not be plausible against Mr. Johnson, and the plaintiff points to no case
in which a deputy sheriff has been held to be a policymaker with final decision-making

authority as required for official capacity liability. See generally City of St. Louis v.
Praprotnik, 485 U.S. 112, 123–26 (1988) (discussing guiding principles for deciding
whether agent is policymaker or implemented an unconstitutional municipal policy).
North Carolina law suggests that in the sheriff’s office, only the sheriff fills that role. See
generally, e.g., S. Ry. Co. v. Mecklenburg County, 231 N.C. 148, 151, 56 S.E.2d 438, 440
(1949) (holding in another context that the “sheriff is the chief law enforcement officer of

the county”); Boyd v. Robeson County, 169 N.C. App. 460, 477, 621 S.E.2d 1, 11 (2005)
(noting, as part of deciding that a North Carolina sheriff is a person who can be sued
under § 1983, that “the control of the employees hired by the sheriff is vested exclusively
in the sheriff”); Wilcoxson v. Buncombe County, 129 F. Supp. 3d 308, 317 (W.D.N.C.
2014).

H. Sixth and Seventh Causes of Action: Assault and Battery

Mr. Green alleges that by blocking his path, descending upon him without warning
or provocation, and arresting him, defendants Sykes, England, Ray, Alston, and other Doe
defendants placed him in fear of imminent harmful contact and thus assaulted him. Doc.
1 at ¶ 217. He further alleges that Mr. England and Mr. Ray assaulted him in the elevator,
id. at ¶ 218, and that Mr. Johnson, Mr. Parker, and Alamance County are responsible and
liable for the assault by ordering it, authorizing it, or acquiescing in the actions of and by
employing defendants Sykes, England, Ray Alston, and Doe defendants. Id. at ¶ 220.
Mr. Green alleges that by slamming him to the ground and otherwise physically
attacking him without justification during the arrest, defendants Sykes, England, Ray,

Alston, and other Doe defendants caused harmful contact and thus committed a battery.
Id. at ¶ 222. He further alleges that Mr. England and Mr. Ray battered him in the
elevator, id. at ¶ 223, and that Mr. Johnson, Mr. Parker, and Alamance County are
responsible and liable for the battery by ordering it, authorizing it, or acquiescing in the
actions of and by employing defendants Sykes, England, Ray Alston, and Doe
defendants. Id. at ¶ 225.

As noted supra, law enforcement officers are entitled to use a reasonable amount
of force to arrest a person, but they cannot use excessive force. The plaintiff plausibly
alleges that the force threatened and used by the various defendants was excessive, to a
degree that malice can be inferred.3 Resolution of qualified immunity at this early stage
is not appropriate, viewing the allegations in the light most favorable to Mr. Green.

These claims may proceed.
I. Eighth Cause of Action: Negligence
Mr. Green contends that by arresting him, slamming him to the ground, and
otherwise physically attacking him without justification during the arrest, defendants

3 The defendants make a conclusory argument in a footnote about waiver of governmental
immunity, Doc. 18 at 11 n.7, but that is not sufficient to raise a question worthy of the Court’s
consideration. See Lab’y Corp. of Am. Holdings v. Kearns, 84 F. Supp. 3d 447 (M.D.N.C. 2015)
(stating defendant’s conclusory argument with nothing more would not suffice); Cross Med.
Prods., Inc. v. Medtronic Sofamor Danek, Inc., 424 F.3d 1293, 1320 n.3 (Fed. Cir. 2005)
(refusing to address an undeveloped argument raised in a footnote). The fact that the defendants
made a more substantial argument in their reply brief, Doc. 23 at 13, does not lead to a contrary
result, as the plaintiff has had no opportunity to respond to those arguments. The defendants can
raise this at summary judgment if they want.
Sykes, England, Ray, Alston, and other Doe defendants were negligent. Id. at ¶ 228. He
further contends that Mr. Johnson, Mr. Parker, and Alamance County are responsible and

liable for the negligence by ordering it, authorizing it, or acquiescing in the actions of and
by employing defendants Sykes, England, Ray Alston, and Doe defendants. Id. at ¶ 230.
Governmental immunity shields public officials like county law enforcement
officers4 from liability for mere negligence in performing governmental duties. See
Chastain v. Arndt, 253 N.C. App. 8, 16, 800 S.E.2d 68, 75 (2017) (noting that a “public
official, 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”); accord Shuping v. Barber, 89 N.C. App. 242, 248, 365 S.E.2d 712, 716 (1988);
Talley v. City of Charlotte, No. 14-CV-683, 2016 WL 8679235, at *12 (W.D.N.C. July 12,
2016). The negligence claims will be dismissed.
J. Tenth5 Cause of Action: Negligent Infliction of Emotional Distress

Mr. Green contends that by arresting him, slamming him to the ground, and
otherwise physically attacking him without justification during the arrest, defendants
Sykes, England, Ray, Alston, and other Doe defendants negligently inflicted emotional
distress. Doc. 1 at ¶¶ 234, 236. He further contends that Mr. Johnson, Mr. Parker, and
Alamance County are responsible and liable for the negligent infliction by ordering it,

4 It is well settled that police officers are public officials. Chastain v. Arndt, 253 N.C. App. 8,
16, 800 S.E.2d 68, 75 (2017).

5 The complaint skips from an eighth to a tenth cause of action. See Doc. 1 at 32–33. It
appears that a ninth cause of action was omitted as a clerical error.
authorizing it, or acquiescing in the actions of and by employing defendants Sykes,
England, Ray Alston, and Doe defendants. Id. at ¶ 237.

As this claim is based in negligence, it will be dismissed for the same reasons Mr.
Green’s eighth cause of action is dismissed: public official immunity.
K. Eleventh Cause of Action: Intentional Infliction of Emotional
Distress
Mr. Green contends that by arresting him, slamming him to the ground, and
otherwise physically attacking him without justification during the arrest, defendants
Sykes, England, Ray, Alston, and other Doe defendants intentionally inflicted emotional
distress. Id. at ¶¶ 241–42. He further contends that Mr. Johnson, Mr. Parker, and
Alamance County are responsible and liable for the intentional infliction by ordering it,

authorizing it, or acquiescing in the actions of and by employing defendants Sykes,
England, Ray Alston, and Doe defendants. Id. at ¶ 243. He has stated a plausible claim
for intentional infliction of emotional distress, and this claim may proceed.
It is ORDERED that:
1. The motion to dismiss by defendant Earl Alston, Doc. 15, is GRANTED as
to the plaintiff’s first cause of action to the extent it alleges a retaliatory

arrest by Mr. Alston, the plaintiff’s fourth, fifth, eighth, and tenth causes of
action, and the official capacity § 1983 claims against Mr. Alston. The
motion is otherwise DENIED.
2. The motion to dismiss by the defendants Terry S. Johnson, Cliff Parker,
David Sykes, Joseph England, Taylor Z. Ray, and Alamance County, Doc.
17, is GRANTED as to the plaintiff’s fourth, fifth, eighth, and tenth causes
of action, and the official capacity § 1983 claims against the defendants. It

is otherwise DENIED.
3. Stated another way, ONLY the following claims MAY PROCEED:
a. The First Amendment retaliation claim, Doc. 1 at ¶¶ 156–72, against
all defendants, except defendant Alston, in their individual
capacities;
b. The Fourth Amendment excessive force claim against all defendants

in their individual capacities, Doc. 1 at ¶¶ 173–85;
c. The Fourteenth Amendment Equal Protection claim against all
defendants in their individual capacities, Doc. 1 at ¶¶ 186–96; and
d. The state law claims for assault, Doc. 1 at ¶¶ 216–20; battery, Doc. 1
at ¶¶ 221–26; and intentional infliction of emotional distress. Doc.1

at ¶¶ 240–45.
4. The following claims are DISMISSED:
a. All § 1983 claims against all the defendants in their official
capacities;
b. To the extent they are asserted, any claims for violation of the

plaintiff’s constitutional rights on October 31, 2020;
c. The First Amendment retaliation claim against defendant Alston,
Doc. 1 at ¶¶ 156–72;
a. The claim that the defendants conspired against him to violate all of
these constitutional rights, Doc. 1 at Jj 197-209;
b. The claim that the plaintiff’s conviction for resisting an officer is
unconstitutional, Doc. 1 at 4] 210—15; and
c. The state law claims for negligence, Doc. 1 at §[§| 227-32, and
negligent infliction of emotional distress. Doc. 1 at 233-39.
This the 11th day of June, 2024.

UNITED STATES DIS : a JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10254552. Public record. Not legal advice.