Owen v. Goodwin

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF NORTH CAROLINA

ASHEVILLE DIVISION

CIVIL CASE NO. 1:21-cv-00217-MR-WCM

JAMES BRADLEY OWEN, )

)

Plaintiff, )

)

vs. ) MEMORANDUM OF

) DECISION AND ORDER

CHRISTOPHER M. GOODWIN, )

BENJAMIN HAWKINS, JACOB )

TIPTON, NICHOLAS A. NEWELL, )

LOWELL S. GRIFFIN, CHARLES S. )

MCDONALD, and HENDERSON )

COUNTY, NORTH CAROLINA, )

)

Defendants. )

_______________________________ )

THIS MATTER is before the Court on the Defendants’ Motion for

Summary Judgment Pursuant to Rule 56 of the Federal Rules of Civil

Procedure [Doc. 47] and the Defendants’ Motion to Exclude the Testimony

of Dr. Timothy Powers [Doc. 49].

I. PROCEDURAL BACKGROUND

On August 11, 2021, Plaintiff James Bradley Owen (“Plaintiff”) filed this

action in this Court against Defendant Christopher M. Goodwin in his

individual and official capacities, Defendant Benjamin Hawkins in his

individual and official capacities, Defendant Jacob Tipton in his individual

and official capacities, Defendant Nicholas A. Newell in his individual and

official capacities, Lowell S. Griffin in his official capacity, Charles S.

McDonald in his official capacity, and Henderson County, North Carolina.

[Doc. 1]. This action arises out of an incident that occurred on August 11,

2018, in Mills River, Henderson County, North Carolina, that ultimately led to

the Plaintiff’s arrest and conviction for three counts of assault with a firearm

on a law enforcement officer. [Doc. 1]. The Plaintiff alleges multiple federal

and state law claims: (1) violation of the Fourth Amendment to the United

States Constitution and/or violation of Article I § 19 of the North Carolina

Constitution; (2) assault and battery; (3) unlawful deprivation of property;

(4) trespass to chattel; (5) punitive damages; and (6) civil rights violations

under Monell v. Dept. of Social Servs., 436 U.S. 658 (1978). [Doc. 1].

On June 14, 2022, Defendants Jacob Tipton and Nicholas A. Newell

filed counterclaims for battery against the Plaintiff, and Defendant Goodwin

filed a counterclaim for assault against the Plaintiff. [Doc. 29]. All

Defendants now move for summary judgment on all the Plaintiff’s claims,

and Defendant Goodwin moves for summary judgment on his counterclaim.1

[Doc. 47]. In addition, the Defendants move to exclude the testimony of

1 Defendants Tipton and Newell have not moved for summary judgment with respect to

their counterclaims at this time.

Plaintiff’s expert, Dr. Timothy Powers. [Doc. 49]. Having been fully briefed,

this matter is now ripe for disposition.

II. STANDARD OF REVIEW

Summary judgment is proper “if the pleadings, the discovery and

disclosure materials on file, and any affidavits show that there is no genuine

issue as to any material fact and that the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(c). “As the Supreme Court has observed,

‘this standard provides that the mere existence of some alleged factual

dispute between the parties will not defeat an otherwise properly supported

motion for summary judgment; the requirement is that there be no genuine

issue of material fact.’” Bouchat v. Baltimore Ravens Football Club, Inc., 346

F.3d 514, 519 (4th Cir. 2003) (quoting Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 247–48 (1986)) (emphasis in original).

A genuine issue of fact exists if a reasonable jury considering the

evidence could return a verdict for the nonmoving party. Shaw v. Stroud, 13

F.3d 791, 798 (4th Cir. 1994), cert. denied, 513 U.S. 814 (1994).

“Regardless of whether he may ultimately be responsible for proof and

persuasion, the party seeking summary judgment bears an initial burden of

demonstrating the absence of a genuine issue of material fact.” Bouchat,

346 F.3d at 522. If this showing is made, the burden then shifts to the

nonmoving party who must convince the Court that a triable issue does exist.

Id. In considering the facts on a motion for summary judgment, the Court

will view the pleadings and material presented in the light most favorable to

the nonmoving party. Matsushita Elec. Industrial Co. v. Zenith Radio Corp.,

475 U.S. 574, 587–88 (1986).

III. FACTUAL BACKGROUND

As a preliminary matter, the Court addresses the forecasts of evidence

presented by the parties. In support of their motion for summary judgment,

Defendants present the following: excerpts from the Plaintiff’s state criminal

trial on the charge of assaulting a police officer with a firearm [Doc. 48-2];

excerpts from the Plaintiff’s deposition [Doc. 48-3]; excerpts from the

deposition of the Plaintiff’s expert, Tim Powers [Doc. 48-4]; and a report from

the Defendants’ expert, Mike Brave [Doc. 48-5]. The Defendants’ brief

contains a factual recitation with citations to this forecast of evidence. [Doc.

48]. In response, the Plaintiff has filed a brief that contains a “Summary of

Facts,” which consists of a three-and-a-half-page description of the alleged

incident with no citations to the record. Instead, Plaintiff’s counsel purports

to “verify” the contents of his brief with affidavits of truthfulness from the

Plaintiff and Plaintiff’s counsel [Doc. 54, 54-1, 54-2]. In his affidavit, the

Plaintiff confirms that he has read the Summary of Facts in the Brief and that

it is “a true and accurate recitation of the facts known to [him], [and] heard

by [him] in the criminal trial in [his] State Court criminal trial.” [Doc. 54-2].

The Plaintiff’s counsel’s affidavit similarly states that the Summary of Facts

“is an accurate recitation of the admissible facts and evidence.” [Doc. 54-1].

The Plaintiff also submitted photo and video exhibits documenting the

incident and the Plaintiff’s alleged injuries. [Docs. 54-3, 54-4, 54-5, 54-6 54-

7, 54-8, 54-9, 54-10, 54-11, 54-12, 54-13]. The Court has reviewed these

exhibits and finds them consistent with the facts as presented here.

In a motion for summary judgment, the movant has the “initial

responsibility of informing the district court of the basis for its motion, and

identifying those portions of the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any,

which it believes demonstrate the absence of a genuine issue of material

fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal citations

omitted). Once this initial burden is met, the burden shifts to the nonmoving

party, who then “must set forth specific facts showing that there is a genuine

issue for trial.” Id. at 322 n.3. The nonmoving party may not rely upon mere

allegations or denials of allegations in his pleadings to defeat a motion for

summary judgment. Id. at 324. Rather, the nonmoving party must oppose

a proper summary judgment motion with citation to “depositions, documents,

electronically stored information, affidavits or declarations, stipulations, . . .

admissions, interrogatory answers, or other materials in the record.” See id.;

Fed. R. Civ. P. 56(c)(1)(a). Namely, the nonmoving party must present

sufficient evidence from which “a reasonable jury could return a verdict for

the nonmoving party.” Anderson, 477 U.S. at 248. To that end, only

evidence admissible at trial may be considered by the Court on summary

judgment. Kennedy v. Joy Technologies, Inc., 269 F. App’x 302, 308 (4th

Cir. 2008) (citation omitted).

What Plaintiff’s counsel has done here entirely fails to comport with

these requirements. Given that submitting “verified” facts is not a recognized

or proscribed means of presenting facts to this Court, the Court cannot

consider the factual background as presented in the Plaintiff’s “verified” brief

and must instead rely on the only admissible evidence before it, i.e., that

presented by the Defendants and the photo and video exhibits presented by

the Plaintiff.

Viewing the forecast of evidence in the light most favorable to the

Plaintiff, the following is a recitation of the relevant facts. On August 11,

2018, Defendant Goodwin was patrolling in Mills River when he received a

call that shots had been fired from a vehicle towards a house on South Mills

River Road. [Doc. 48-2: Crim. Trans. at 4-5]. Upon arriving at the Mills River

Community Center, he found an empty pickup truck, saw no suspects in the

area, and then heard three gunshots. [Id. at 7-11]. Defendant Goodwin then

backed his patrol car down the dirt path next to the Community Center onto

the paved Mills River Road, and radioed dispatch to let them know that

someone was shooting at him, and that he needed backup. [Id. at 11]. A

few minutes later, Defendant Goodwin saw a person, later identified as the

Plaintiff, walk out of the woods in a non-aggressive manner, holding a rifle

by the center stock with the barrel pointing skyward. [Id. at 12-13]. As the

Plaintiff came out of the woods, the Plaintiff’s dog, which was unleashed, ran

alongside him. [Id. at 68]. The Plaintiff admittedly had been drinking prior to

Defendant Goodwin’s arrival on the scene and had called a friend to pick him

up due to his intoxication. [Doc. 48-3: Plaintiff’s Dep. at 5].

As the Plaintiff emerged from the woods, Defendant Goodwin began

repeatedly yelling commands for Plaintiff to drop the rifle and walk towards

him, but the Plaintiff did not initially follow Defendant Goodwin’s commands.

[Doc. 48-2: Crim. Trans. at 12-14]. At one point the Plaintiff turned the rifle

toward Defendant Goodwin, but then eventually put the rifle on the tailgate

of the pickup truck parked next to the Plaintiff. [Id. at 14]. The Plaintiff

informed Defendant Goodwin that his partner was in the woods with a scope

rifle. [Id. at 15]. The Plaintiff began coming down the driveway but stopped

right before the paved drive. [Id. at 18]. Defendant Goodwin continued to

command the Plaintiff to walk towards him, but the Plaintiff refused and

verbally confirmed that he would not come any closer to Defendant Goodwin.

[Id. at 17].

Upon the arrival of Defendants Hawkins, Newell, and Tipton, the

deputies began to approach the Plaintiff to try to detain him. [Id. at 19]. At

one point, the Plaintiff threw his hands into the air and then down into his

pockets and pulled out his cellphone. [Id.]. The Defendants were initially

unsure what the Plaintiff had pulled out of his pocket and were concerned it

might be a handgun. [Id. at 19, 100]. The Plaintiff continued to ignore the

officers’ commands to put his hands up or get down on the ground. [Id. at

97]. The Defendants at some points were giving the Plaintiff multiple

different commands. [Id. at 166].

The Defendant Hawkins made initial contact with the Plaintiff by

attempting to push him to the ground. [Id. at 100]. Defendant Hawkins

testified that because the Plaintiff was standing on a hill, he hopefully would

fall over once pushed, and the deputies would then more easily be able to

handcuff him. [Id.]. However, the Plaintiff did not “seem to be affected” by

the push and only stepped back. [Id.]. Defendants Newell and Tipton then

quickly pushed Defendant Hawkins out of the way and made contact with

the Plaintiff.2 [Id. at 23, 100]. At one point, the Plaintiff was hit with an elbow

on his upper torso and staggered backwards. [Id. at 73-74]. Defendant

Tipton and the Plaintiff were then both “throwing several punches.” [Id. at

127]. Once the Defendants got the Plaintiff on the ground, he continued to

fight, trying to hit and strike the Defendants who were detaining him, and

continued to resist arrest and ignore their commands. [Doc. 48-2 at 146].

Defendant Tipton hit the Plaintiff with the butt of his rifle multiple times in an

attempt to gain control of him. [Id. at 147]. One of the Defendants also hit

the Plaintiff in the face with a gun, and the Plaintiff testified that someone

was hitting him with something on the back of the head and kicking him once

he was face down on the ground. [Doc 48-3: Plaintiff’s Dep. at 6]. The

Defendants told the Plaintiff not to resist, and he repeatedly told the officers

that he was not resisting. [Id. at 6].

Although he was unsure exactly which Defendant was hitting or kicking

him, when asked if he pushed any of the police officers, the Plaintiff testified,

“I could have. I got hit in the face, and at that point, I’m sure natural instinct

just kind of kicked in.” [Id. at 7]. The Plaintiff and Defendant Tipton were at

one point fighting on the ground, and Defendant Tipton continued to give the

2 It is undisputed that only Hawkins, Newell, and Tipton made physical contact with the

Plaintiff. While Defendant Goodwin remained on the scene, he did not physically engage

with the Plaintiff.

Plaintiff commands with which he failed to comply. [Doc. 48-2: Crim. Trans.

at 148]. Defendant Newell was also on the ground and assisted Defendant

Tipton in handcuffing the Plaintiff by rolling him onto his stomach and

forcefully removing his hands from underneath him. [Id. at 148-49]. After a

one-to-two-minute struggle, the Defendants were able to handcuff Plaintiff

and arrest him. [Id. at 100-02]. They then called EMS to come treat the

Plaintiff’s head injury, but the Plaintiff refused treatment when EMS arrived.

[Id. at 149].

During the Plaintiff’s arrest, and while he was on the ground, his dog

was running in circles around the officers; the Plaintiff did not give his dog

any commands. [Doc. 48-3: Plaintiff’s Dep. at 7-8]. While the dog did not

bite any of the officers, it was nipping at the legs of everyone involved in the

altercation. [Doc. 48-2: Crim. Trans. at 75, 101]. Defendant Hawkins

testified that that he was concerned about the dog’s aggressive behavior and

was worried that once the Plaintiff and Defendants Tipton and Newell were

wresting on the ground, much more vulnerable areas, like faces, necks, and

hands, were going to be exposed for the dog to bite. [Id. at 101]. At that

point, worried about the dangerousness of the dog’s actions, Defendant

Hawkins shot it. [Id. at 101-103]. The dog appeared to be killed instantly.

[Id. at 103].

After Defendant Hawkins shot the dog, he and Defendant Goodwin

went up towards the woods to look for the Plaintiff’s partner. [Id. at 23]. The

officers then saw non-party Hunter Wright coming out of the woods with his

hands in the air. [Id. at 102]. Wright complied with Defendant Hawkins’s

commands to lay on the ground and was taken into custody with no force.

[Id.].

The Plaintiff alleges several injuries resulting from his arrest, including

cuts and scratches on his face and the back of his head, a swollen eye and

cheek, and bruises on his back and sides. [Doc. 48-3: Plaintiff’s Dep. at 9-

10]. The Plaintiff admitted that, except for a scar on his cheek, he suffered

no permanent physical injuries. [Id. at 10].

The Plaintiff was charged in North Carolina state court with three

counts of assault with a firearm on a law enforcement officer and assault on

a law enforcement officer with injury. State v. Owen, 2021-NCCOA-56, ¶ 7,

276 N.C. App. 147. The jury found the Plaintiff guilty on three counts of

assault with a firearm on a law enforcement officer; the assault on a law

enforcement officer with injury charge was dismissed. Id. The Plaintiff

appealed, and the North Carolina Court of Appeals affirmed, finding no error.

Id. at ¶ 29.

IV. DISCUSSION

A. Federal § 1983 Claims

1. Official Capacity/Government Entity Claims

The Federal Civil Rights Act, 42 U.S.C. § 1983, imposes civil liability

upon every person who, under color of law, deprives another of rights

secured by the Constitution and laws of the United States. 42 U.S.C. § 1983.

To prevail on a § 1983 claim, the plaintiff has the burden of establishing

(1) the deprivation of a right secured by the Constitution or laws of the United

States, and (2) that the alleged deprivation was committed under color of

state law. Austin v. Paramount Parks, Inc., 195 F.3d 715, 727 (4th Cir.

1999). By its terms, § 1983 “creates no substantive rights; it merely provides

remedies for deprivation of rights established elsewhere.” City of Okla. City

v. Tuttle, 471 U.S. 808, 816 (1985) (citation omitted).

As an initial matter, Defendants Goodwin, Hawkins, Tipton, and Newell

are entitled to summary judgment in their favor for all claims brought against

them in their official capacities. These claims are duplicative of the claims

against the governmental employer, Defendants Griffin and McDonald, the

current and former Sheriff of Henderson County, respectively, and should be

dismissed. Love-Lane v. Martin, 355 F.3d 766, 783 (4th Cir. 2004) (affirming

district court's dismissal of individual capacity § 1983 claim against

Superintendent as essentially a claim against the Board of Education);

Wright v. Town of Zebulon, 202 N.C. App. 540, 543-44, 688 S.E.2d 786, 789

(2010) (affirming dismissal of official capacity claims against the mayor, the

town manager, the police chief, and other officers as “duplicative” of claims

against the municipality). The Court now turns to the official capacity claims

brought against Defendant Henderson County and Defendants Griffin and

McDonald.3 Local governing bodies, such as Defendant Henderson County,

“can be sued directly under § 1983 for monetary, declaratory, or injunctive

relief where . . . the action that is alleged to be unconstitutional implements

or executes a policy statement, ordinance, regulation, or decision officially

adopted and promulgated by that body's officers.” Monell v. Dep’t of Social

Servs., 436 U.S. 658, 690 (1978). Further, “although the touchstone of the

§ 1983 action against a government body is an allegation that official policy

is responsible for a deprivation of rights protected by the Constitution, local

governments, like every other § 1983 ‘person,’ by the very terms of the

statute, may be sued for constitutional deprivations visited pursuant to

governmental ‘custom’ even though such a custom has not received formal

3 The Defendants argue that Defendant McDonald can no longer be sued in his official

capacity because he is no longer in the position of Sheriff of Henderson County. [Doc.

48 at 6-7]. However, Federal Rule of Civil Procedure 25(d) allows for the substitution of

parties in their official capacities in this instance, and, furthermore, given the Court’s

holding on this claim, the Court need not reach this issue.

approval through the body's official decisionmaking channels.” Id. at 690-

91. This second category of Monell liability cases are often referred to as

“pattern and practice” or “pattern and custom” cases. Further, it is said that

“the municipal policy must be ‘the moving force of the constitutional

violation.’” Id. (citing Polk County v. Dodson, 454 U.S. 312, 326 (1981)).

Proof of a single incident of unconstitutional activity, however, is not sufficient

to impose liability under Monell, “unless proof of the incident includes proof

that it was caused by an existing, unconstitutional municipal policy, which

policy can be attributed to a municipal policymaker.” Tuttle, 471 U.S. at 823-

24. In order to succeed on his official capacity claims, Plaintiff must not only

prove the deprivation of a constitutional right, but also that Defendant

County, through the acts of its final decisionmaker regarding law

enforcement issues (i.e., the Sheriff) caused the Plaintiff to be subjected to

such deprivation. Under Monell, the County may only be held accountable

if the deprivation was the result of municipal “custom or policy.” Tuttle, 471

U.S. at 817.

Here, the Plaintiff contends that policies or customs of Defendants

Henderson County and its Sheriff inflicted the Plaintiff's injuries, and

therefore “McDonald, Griffin, and/or Henderson County are jointly and

severally liable for the damages suffered by Mr. Owen as a result of the

violation of his civil rights.” [Doc. 15 at 1 (citing Monell, 436 U.S. at 691)].

The policies or customs on which Plaintiff relies are not official written

policies of the Sheriff's Office, but rather a “policy” of “promoting, facilitating,

and condoning aggressive, abusive, and assaultive behavior toward

arrestees and detainees.” [Doc. 1 at 15]. However, the Plaintiff has

forecasted no evidence that such policy, whether formal or informal, exists

or was implicated in his alleged deprivation of rights. As such, the Plaintiff's

theory of liability under Monell is not supported by the evidence.

In order to withstand summary judgment here, the Plaintiff must prove

more than a single incident of unconstitutional activity, “unless proof of the

incident includes proof that it was caused by an existing, unconstitutional

municipal policy, which policy can be attributed to a municipal policymaker.”

Tuttle, 471 U.S. at 823-24. The Plaintiff has not forecast evidence from

which a jury could find an existing, unconstitutional policy. Without

presenting evidence of a single other incident involving the use of excessive

force by a Sheriff's deputy, no reasonable juror could conclude that the

Henderson County Sheriff's Office operated with the custom and practice of

failing to adequately train its deputies on the use of force. See Tuttle, 471

U.S. at 823-24. And there is certainly no forecast of evidence that such

failure caused any deprivation of the Plaintiff’s constitutional rights.

As such, the Plaintiff has failed to forecast sufficient evidence of a

custom or practice upon which Monell liability could be based. The Court

will, therefore, grant summary judgment for the Defendants on the Plaintiff's

official capacity and governmental entity claims under § 1983.

2. Individual Capacity Claims Against Deputies

The Court now turns to the § 1983 claims alleged against Defendants

Goodwin, Hawkins, Tipton, and Newell (collectively, “Defendant Deputies”)

in their individual capacities.

Here, the Plaintiff alleges that Defendant Deputies used excessive

force to arrest him in violation of the Fourth Amendment. [Doc. 1 at 9]. The

Fourth Amendment prohibits police officers from using force that is

“excessive” or not “reasonable” in the course of making an arrest. Graham

v. Connor, 490 U.S. 386, 388 (1989); Meyers v. Baltimore Cnty., Md., 713

F.3d 723 (4th Cir. 2013). Whether an officer has used excessive force to

effect an arrest is based on “objective reasonableness,” taking into account

“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 or attempting to evade arrest by flight.” Graham, 490 U.S. at 396,

399. Objective reasonableness is the touchstone; “[a]n officer’s evil

intentions will not make a Fourth Amendment violation out of an objectively

reasonable use of force; nor will an officer’s good intentions make an

objectively unreasonable use of force constitutional.” Graham, 490 U.S. at

397; see also Stanton v. Elliott, 25 F.4th 227, 233 (4th Cir. 2022) (“Whether

an officer has used excessive force is judged by a standard of objective

reasonableness.”) (citation omitted). “In questioning the split-second

decisions of police officers, [the Court] must avoid hindsight bias and try to

place ourselves in the heat of the moment.” Stanton, 25 F.4th at 233.

Because each officer was facing a unique situation, the Court will evaluate

each officer individually.

a. Officer Goodwin

An officer does not seize an individual if the officer's show of force does

not either physically touch the individual or compel him to submit to the

officer's authority. See California v. Hodari D., 499 U.S. 621, 626-27 (1991).

Here, the facts are undisputed that Defendant Goodwin did not physically

touch the Plaintiff. While Goodwin was the first at the scene, the other three

Deputy Defendants were the ones who made physical contact with the

Plaintiff while Goodwin held back and then pursued non-party Wright. The

only alleged act of Defendant Goodwin that the Plaintiff contends was a

seizure was Goodwin’s pointing his weapon at the Plaintiff whilst

commanding him to put down his rifle and walk toward him. However, the

Plaintiff did not comply with Goodwin’s commands, and as such did not

submit to Goodwin’s authority and thus was not “seized.” Even if this act

were a seizure, the undisputed facts show that Defendant Goodwin was

pointing his weapon at the Plaintiff while the Plaintiff was holding his own

weapon, a rifle, and that Goodwin was uncertain whether the Plaintiff had

any additional weapons on him. As such, even if Defendant Goodwin had

seized the Plaintiff, no reasonable jury could find Goodwin’s actions under

the circumstances to be unreasonable or an excessive use of force.

Therefore, Defendant Goodwin is entitled to summary judgment on Plaintiff's

excessive force claim.

b. Officer Hawkins

Unlike Officer Goodwin, Officer Hawkins did make physical contact

with the Plaintiff, albeit briefly. There is evidence from which a reasonable

jury could find that Hawkins “seized” the Plaintiff when he attempted to push

him onto the ground. [Doc. 48-2: Crim. Trans. at 23, 100]. The question is

then whether the use of force was reasonable given the totality of the

circumstances. No facts in the record could lead a reasonable jury to find

that Hawkins’ conduct was objectively unreasonable, even viewing the

evidence in the light most favorable to the Plaintiff. The undisputed forecast

of evidence shows that at the time that Hawkins pushed the Plaintiff,

(1) Hawkins was aware shots had been fired towards Defendant Goodwin

from the woods where the Plaintiff appeared; (2) Hawkins was unsure if the

Plaintiff was still armed; (3) Hawkins knew there was another armed party

somewhere near the scene; (4) Hawkins knew the Plaintiff was ignoring his

and the other officers’ commands; (5) alongside two other officers, Hawkins

approached the Plaintiff and attempted to subdue him by pushing him, in

hopes that the Plaintiff would trip backwards and the officers would then be

able to detain him; (6) after his initial push did not take the Plaintiff down,

Hawkins backed off of the Plaintiff while the other officers moved in and

attempted to detain him. [Id. at 11, 15, 17, 19, 97, 100, 146].

Under these circumstances, it was objectively reasonable for Hawkins

to conclude that the Plaintiff posed an immediate threat to his safety or the

safety of others. See Anderson v. Russell, 247 F.3d 125 (4th Cir. 2001);

Slattery v. Rizzo, 939 F.2d 213 (4th Cir. 1991); Craven v. Novelli, No.

521CV00174KDBDSC, 2023 WL 2484825 (W.D.N.C. Mar. 13, 2023). This

conclusion stands even if the Plaintiff did not actually have an additional

weapon on his person. In Slattery and Anderson, the Fourth Circuit found

that despite an officers’ mistaken belief that an individual possessed a

firearm and was about to use it, a suspect's movements toward a perceived

firearm while disobeying the officer's command not to do so “would rightfully

cause a reasonable officer to fear that the suspect intended to cause

imminent deadly harm.” See Slattery, 939 F.2d at 215-16 (holding that an

officer reasonably feared for his life after he twice ordered the suspect to put

his hands up, but the suspect ignored those commands, instead reaching

down to an area out of the officer’s sight and grabbing an object that turned

out to be a beer bottle); Anderson, 247 F.3d at 128, 131 (holding that an

officer reasonably feared for his life during an investigation of a man thought

to be armed after the officer ordered the man to get down on his knees and

put his hands up, but the man began reaching in his back left pocket for what

turned out to be a Walkman radio).

Officers need not be absolutely sure of the nature of the threat or the

suspect's intent to cause them harm to act in self-defense, but rather need

only have a sound reason to believe that there is a serious threat to their

safety or the safety of others. See Slattery, 939 F.2d at 215-16; McLenagan

v. Karnes, 27 F.3d 1002, 1007 (4th Cir. 1994) (holding that officer had a right

to use deadly force when the officer had reason to believe the suspect was

armed, although the officer could not confirm that the suspect was armed);

Greenidge v. Ruffin, 927 F.2d 789, 792 (4th Cir. 1991) (affirming the entry of

judgment for the officer although he could not confirm the nature of the

weapon, which turned out to be a wooden nightstick, before using deadly

force); Elliott v. Leavitt, 99 F.3d 640, 644 (4th Cir. 1996) (“Before employing

deadly force, police must have sound reason to believe that the suspect

poses a serious threat to their safety or the safety of others . . . [but] need

not be absolutely sure . . . of the nature of the threat or the suspect's intent.”).

Here, even assuming Hawkins was mistaken in his belief that the

Plaintiff had another weapon, Hawkins had sound reason to fear for his

safety and the safety of others. See Saucier v. Katz, 533 U.S. 194, 206

(2001) (“Officers can have reasonable, but mistaken, beliefs as to the facts

establishing the existence of” an immediate threat, and “in those situations

courts will not hold that they have violated the Constitution.”). Hawkins knew

that shots had been fired before he arrived on the scene and had reason to

believe that the Plaintiff was still armed. Based on this information, a

reasonable officer would have had probable cause to believe the Plaintiff

posed an immediate threat to the safety of the officers on scene. Given that

Hawkins merely attempted to push the Plaintiff to the ground in order to place

him under arrest, his use of such minimal force was clearly reasonable under

the circumstances. No jury could find otherwise. Hawkins is therefore

entitled to summary judgment on the Plaintiff's excessive force claim.

c. Officers Tipton and Newell

After Defendant Hawkins tried to push the Plaintiff to the ground,

Officers Tipton and Newell both moved in to subdue the Plaintiff. [Doc. 48-

2: Crim. Trans. at 23,100]. Both the facts as presented at the Plaintiff’s

criminal trial and the dashboard camera video tend to suggest that Tipton

and Newell kicked, punched, and hit the Plaintiff, at times using the butts of

their guns. [Id. at 127, 147; Doc. 48-3: Plaintiff’s Dep. at 6]. The Defendants

do not dispute that their actions constitute a seizure of the Plaintiff. However,

as with Officer Hawkins, Officers Tipton and Newell were aware at the time

that they physically engaged with the Plaintiff that shots had been fired at the

scene before they arrived, the Plaintiff might still be armed, there was

another armed party nearby, the Plaintiff was ignoring the officers’

commands, and, additionally, that Officer Hawkins had unsuccessfully

attempted to subdue the Plaintiff with lesser force, but the Plaintiff continued

physically resisting. [Id. at 11, 15, 17, 19, 97, 100, 146].

While Officers Tipton’s and Newell’s use of force went beyond that of

Officer Hawkins, no reasonable jury could find that their use of force was

unreasonable. Again, based on the information available at the time, a

reasonable officer would have had probable cause to believe the Plaintiff

posed an immediate threat to the safety of the officers on scene and was

actively resisting their attempts to arrest him. Therefore, these two

Defendants’ actions in punching, hitting, kicking, and otherwise attempting

to restrain the Plaintiff through the use of force was undoubtedly reasonable,

and the Defendants are entitled to summary judgment on the individual

claims against them.

3. Qualified Immunity

Qualified immunity “is an entitlement not to stand trial or face the other

burdens of litigation.” Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). The

application of qualified immunity requires a two-part inquiry. First, the Court

must determine “whether a constitutional right would have been violated on

the facts alleged.” Saucier, 533 U.S. at 200 (2001), overruled in part by

Pearson v. Callahan, 555 U.S. 223 (2009). Second, the Court must

determine “whether the right at issue was ‘clearly established’ at the time of

defendant's alleged misconduct.” Pearson, 555 U.S. at 232 (citation

omitted). “In performing this analysis, however, a court is not required to

consider the above two steps in any particular order. A court may exercise

its discretion to determine which of the two steps of the qualified immunity

analysis ‘should be addressed first in light of the circumstances in the

particular case at hand.’” Williams v. Ozmint, 716 F.3d 801, 805-06 (4th Cir.

2013) (quoting in part Pearson, 555 U.S. at 236). “If no constitutional right

would have been violated were the allegations established, there is no

necessity for further inquiries concerning qualified immunity.” Saucier, 533

U.S. at 201. Because this Court has already determined that the undisputed

forecast of evidence does not show the Plaintiff’s constitutional rights were

violated, the Court concludes that the individual deputies are also entitled to

qualified immunity.

B. State Law Claims Against Defendants

1. Constitutional Claims

a. Excessive Force

In addition to his federal constitutional claim, the Plaintiff claims that

the Deputies’ use of excessive force amounted to an unlawful seizure under

Article I § 19 of the North Carolina Constitution. [Doc. 1 at 9]. Because the

North Carolina Constitution is co-extensive with the Constitution of the

United States on the issue of excessive force, the state constitutional claim

must fail for precisely the same reasons. See McNeill v. Harnett Cty., 398

S.E.2d 475, 481 (N.C. 1990) (stating that the “law of the land” clause of the

North Carolina Constitution is synonymous with the due process clause of

the Federal Constitution).

In addition, a plaintiff may pursue a direct action under the North

Carolina Constitution only where the plaintiff lacks a remedy under state law

adequate to redress the alleged violation. Craig ex rel. Craig v. New Hanover

Cty. Bd. of Educ., 678 S.E.2d 351, 354 (2009). The Plaintiff has available

an adequate remedy in the form of individual capacity claims such that

Plaintiff's state constitutional claim is barred. That these individual capacity

claims may be barred by public officer's immunity does not negate their

adequacy as a remedy. DeBaun v. Kuszaj, 228 N.C. App. 567 (2013)

(unpublished); Rousselo v. Starling, 495 S.E.2d 725, 731–32 (N.C. App.

1998). In sum, the Court concludes that the Defendants are entitled to

summary judgment as to the Plaintiff's North Carolina constitutional claim for

excessive force.

b. Unlawful Deprivation of Property

The Plaintiff also asserts a claim for unlawful deprivation of property

under Article I § 19 of the North Carolina Constitution for the shooting of his

dog. [Doc. 1 at 11]. As with the previous constitutional claim, under North

Carolina law, a cause of action under the state constitution exists only in the

absence of an adequate state remedy. Craig, 678 S.E.2d at 354. Because

the Plaintiff can, and indeed did, bring a claim for trespass to chattel for the

shooting of his dog, the Defendants are entitled to summary judgment on this

claim.

2. Assault and Battery

A civil action for assault and battery is available under North Carolina

law against one who uses force for the accomplishment of a legitimate

purpose (such as a justifiable arrest), but only if the force used is excessive

under the circumstances. Myrick v. Cooley, 371 S.E.2d 492, 496 (N.C. App.

1988). “The question of ‘[w]hether an officer has used excessive force is

judged by a standard of objective reasonableness.’” Jordan v. Civil Service

Bd., 570 S.E.2d 912, 918 (N.C. App. 2002) (quoting Clem v. Corbeau, 284

F.3d 543, 550 (4th Cir. 2002)).

Here, the Plaintiffs' assault and battery claims are resolved by this

Court's previous determination in the context of the Plaintiff’s Section 1983

claims that based on the undisputed facts the Defendants’ use of force was

objectively reasonable. In light of this determination, the assault and battery

claim too must fail as a matter of law. See Myrick, 371 S.E.2d at 496.

3. Trespass to Chattel

The Plaintiff asserts a state law claim for trespass to chattel against

Defendant Hawkins for the killing of his dog. [Doc. 1 at 12]. Under North

Carolina law, the elements of trespass to chattel are: (1) that the plaintiff had

“actual or constructive possession of the personalty or goods in question at

the time of the trespass,” and (2) that there was an “unauthorized, unlawful

interference or dispossession of the property.” Fordham v. Eason, 521

S.E.2d 701, 704 (N.C. 1999). It is settled law that the use of deadly force

against a household pet is reasonable only if the pet poses an immediate

danger and the use of force is unavoidable. Ray v. Roane, 948 F.3d 222,

230 (4th Cir. 2020).

Here, the undisputed forecast of evidence shows that the Defendant’s

use of deadly force against the Plaintiff’s dog was reasonable. As discussed

with regard to the § 1983 against Defendant Hawkins, the Deputies were

confronted with a situation where the Plaintiff was resisting arrest, had told

officers there was another armed person nearby, and was accompanied by

an unleashed dog who was frantically running around and nipping at the

officers. [Doc. 48-2: Crim. Trans. at 75, 101; [Doc. 48-3: Plaintiff’s Dep. at

7-8]. The dog indeed posed an immediate threat to Defendant Hawkins and

his fellow officers, as the dog’s behavior was disruptive to their efforts to

subdue the Plaintiff. The dog easily could have caused serious injury to one

of the officers. Moreover, the distraction presented by the dog caused the

Defendants’ assessment of the threat presented by the Plaintiff to be much

more difficult, dangerous, and potentially deadly. As the deputies testified at

the criminal trial against the Plaintiff, Defendant Hawkins felt he was left with

no other option but to shoot the dog in order to avoid the danger it posed.

[Doc. 48-2: Crim. Trans. at 101]. Therefore, no reasonable jury could find

that the Defendant was unjustified in subduing the Plaintiff’s dog or was

unauthorized to use deadly force in doing so.

4. Sovereign Immunity

In addition to their substantive issues, the Plaintiff’s state tort law

claims against the Defendants in their official capacities are barred under the

doctrine of sovereign immunity. In North Carolina, “[i]t is well settled that

pursuant to the doctrine of sovereign immunity, the State is immune from suit

absent waiver of immunity” and that a “suit against a public official in his

official capacity is a suit against the State.” White v. Trew, 363, 736 S.E.2d

166, 168 (N.C. 2013) (citation and internal quotation marks omitted).

“Sheriffs and deputy sheriffs are considered public officials for purposes of

sovereign immunity.” Morgan v. Spivey, No. 5:16-cv-00365-FL, 2017 WL

4399539, at *6 (E.D.N.C. Sept. 29, 2017). “However, a sheriff may waive

governmental immunity in at least two ways, by the purchase of a bond, N.C.

Gen. Stat. § 58-76-5, or by purchase of liability insurance, N.C. Gen. Stat. §

153A-435(a).” Id.

Here, the Plaintiff has not alleged any waiver of sovereign immunity,

nor presented any facts that would support such an allegation. Therefore,

the Defendants are entitled to summary judgment with respect to the

Plaintiff’s official capacity claims for assault and battery and trespass to

chattel.

C. Punitive Damages

Because all the Plaintiff’s substantive claims cannot withstand

summary judgment, his claim for punitive damages must fail as well.

Therefore, the Defendants are entitled to summary judgment on the

Plaintiff’s claim for punitive damages.

D. Counterclaim Against Plaintiff

The Defendant Goodwin has also moved for summary judgment for his

counterclaim of assault against the Plaintiff. [Doc. 47]. North Carolina looks

to the common law for the definition of the intentional tort of assault.

An assault is an offer to show violence to another

without striking him, and a battery is the carrying of

the threat into effect by the infliction of a blow. The

interest protected by the action for battery is freedom

from intentional and unpermitted contact with one's

person; the interest protected by the action for

assault is freedom from apprehension of a harmful or

offensive contact with one's person.

Dickens v. Puryear, 276 S.E.2d 325, 330 (N.C. 1981). The elements of

assault, therefore, are: (1) intent, (2) offer of injury, (3) reasonable

apprehension, (4) apparent ability, and (5) imminent threat of injury. Hawkins

v. Hawkins, 400 S.E.2d 472, 475 (N.C. App. 1991), aff'd, 417 S.E.2d 447

(N.C. 1992).

Here, the Plaintiff has already been charged and convicted in state

court of three counts of assault with a firearm on an officer. State v. Owen,

2021-NCCOA-56, ¶ 7, 276 N.C. App. 147. In the criminal context, “[t]he

elements of the offense of assault with a firearm on a law enforcement officer

are: (1) an assault; (2) with a firearm; (3) on a law enforcement officer; (4)

while the officer is engaged in the performance of his duties.” State v.

Dickens, 592 S.E.2d 567, 571 (N.C. App. 2004) (citation omitted); see N.C.

Gen. Stat. § 14-34.5(a) (2015). Under the applicable state law, “[a]n assault

is an overt act or attempt, with force and violence, to do some immediate

physical injury to the person of another, which show of force or violence must

be sufficient to put a person of reasonable firmness in fear of immediate

physical injury.” State v. Childers, 572 S.E.2d 207, 212 (N.C. App. 2002)

(citation and quotations omitted).

Furthermore, the undisputed facts show that the Plaintiff indeed did

intentionally fire three shots that resulted in the Defendant Goodwin’s

imminent fear of injury, as evidenced by his retreating behind his car and

radioing for backup. [Doc. 48-2: Crim. Trans. at 7-11]. Based on the

undisputed forecast of evidence presented by the parties here, the Court

concludes that no reasonable jury could find for the Plaintiff on the

Defendant’s counterclaim for assault. Therefore, the Court concludes that

Defendant Goodwin is entitled to summary judgment on this counterclaim as

to the issue of liability.

E. Motion to Exclude Testimony

Because all of the Plaintiff’s claims fail at this stage, the Court will not

reach the merits of the Defendants’ Motion to Exclude the Testimony of Dr.

Timothy Powers, the Plaintiff’s expert, and the motion will instead be denied

as moot.

ORDER

IT IS, THEREFORE, ORDERED that the Defendants' Motion for

Summary Judgment [Doc. 47] is GRANTED, and the Plaintiff's claims are

hereby DISMISSED WITH PREJUDICE.

IT IS FURTHER ORDERED that Defendant Goodwin is granted

summary judgment as to his counterclaim against the Plaintiff for assault as

to the issue of liability.

IT IS FURTHER ORDERED that Defendants’ Motion to Exclude the

Testimony of Dr. Timothy Powers [Doc. 49] is DISMISSED AS MOOT.

This matter shall proceed to trial for disposition of the counterclaims for

battery asserted by Defendants Tipton and Newell and for the determination

of damages for Defendant Goodwin’s counterclaim for assault.

IT IS SO ORDERED.

Signed: September 29, 2023

Martiff Reidinger ey,

Chief United States District Judge wally

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