# Laschober v. Ammons

> District Court, W.D. North Carolina · November 17, 2023

URL: https://www.frixlaw.com/law-library/cases/10260403

## Case

- **Court:** District Court, W.D. North Carolina
- **Decided:** November 17, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:21-cv-00107-MR-WCM

GERALD R. LASCHOBER, )
)
Plaintiff, )
)
vs. ) MEMORANDUM OF
) DECISION AND ORDER
AARON C. AMMONS )
and JOSHUA FREEMAN, )
)
Defendants. )
_______________________________ )

THIS MATTER is before the Court on the Defendant Aaron C.
Ammons’ Motion for Summary Judgment [Doc. 51].
I. PROCEDURAL BACKGROUND
On March 16, 2021, the Plaintiff Gerald R. Laschober (“Plaintiff”) filed
this action in Swain County Superior Court against Defendants Aaron C.
Ammons and Joshua Freeman. [Doc. 1]. On April 16, 2021, the Defendants
filed a Notice of Removal with this Court based on federal question
jurisdiction pursuant to 28 U.S.C. §§ 1331, 1441(a). [Id.]. This action arises
out of an incident that occurred on March 17, 2017, in Bryson City, North
Carolina, that ultimately led to the Plaintiff’s arrest. [Id.]. The Plaintiff alleges
several constitutional violations under 42 U.S.C. § 1983, specifically that the
Defendants deprived him

of his right to be free from unwarranted and
unreasonable attack, detention and seizures, as
guaranteed by the Fourteenth Amendment to the
United States Constitution, deprived plaintiff of his
due process rights as guaranteed by the Fifth and
Fourteenth Amendments to the Constitution of the
United States, deprived him of his right to be free
from cruel and unusual punishment under the Eighth
Amendment to the United States Constitution and
deprived the plaintiff of his right to liberty under the
Fourteenth Amendment to the Constitution of the
United States.

[Doc. 1-1 at 5]. The Plaintiff also alleges that the Defendants conspired
together for the purpose of depriving the Plaintiff of his civil rights in violation
of 42 U.S.C. § 1985. [Id.]. Finally, the Plaintiff alleges that the Defendants
committed an assault and battery upon him. [Id. at 6].
On March 18, 2022, this Court granted in part the Defendants’ Motion
to Dismiss pursuant to Federal Rule of Civil Procedure Rule 12(b)(6). [Doc.
19]. On October 30, 2023, the Plaintiff filed a notice of settlement of all claims
with Defendant Freeman. [Doc. 64]. Therefore, the only remaining claims
are those against Defendant Ammons: (1) claims under 42 U.S.C. § 1983 for
the violation of his Fourth Amendment rights to be free from unreasonable
seizure and excessive force in his individual capacity, and (2) state law
claims of assault and battery. [Docs. 1, 15].
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
Viewing the forecast of evidence in the light most favorable to the

Plaintiff, the following is a recitation of the relevant facts.
On March 17, 2017, the Plaintiff was driving east on SR19 out of
Bryson City, North Carolina, on the way to meet a business associate. [Doc.
55-1: Plaintiff’s Decl. at ¶ 6]. After turning onto Walker Woody Road, the

Plaintiff saw a group of vehicles blocking the road several hundred feet
ahead of him. [Id.] Hoping to catch up to his business associate, who was
on his way to Sylva, North Carolina, the Plaintiff executed a three-point turn

and returned to SR19 to avoid the blockage. [Id.].
Unbeknownst to the Plaintiff, the line of vehicles was a result of a
seatbelt enforcement checking station where every vehicle was being
stopped by law enforcement officers. [Doc. 52-2: Defendant’s Decl. at ¶¶ 5-

7]. Once vehicles were stopped, officers would ask each driver for their
driver’s license and registration. [Id. at ¶ 7]. After the Plaintiff had traveled
about a tenth of a mile back toward SR19, an unmarked law enforcement

vehicle approached the Plaintiff from behind with its lights and sirens
engaged. [Doc. 55-1: Plaintiff’s Decl. at ¶ 8]. The Plaintiff did not
immediately pull over, and passed a pawn shop, highway patrol station,

church, another road, and pull-off while the law enforcement vehicle followed
closely behind him. [Doc. 52-5: Plaintiff’s Dep. at 14-17]. The Plaintiff
continued to drive for a total of about 3.3 miles1 before pulling into a tire shop;

the law enforcement vehicle pulled in directly behind him. [Doc. 55-1:
Plaintiff’s Decl. at ¶¶ 8-11].
The Plaintiff stepped out of the vehicle and remained at the open door.
[Id. at ¶ 11]. A law enforcement officer, later identified as Defendant

Ammons, approached the Plaintiff and began to twist the Plaintiff’s arm
behind his back, yelling at him that he did not know “whether [the Plaintiff
was] drunk, high on drugs, or [was] going to run.” [Id. at ¶ 12]. The Plaintiff

emphatically said to Defendant Ammons, “Let go of my arm, or you’re going
to injure it.” [Id.]. Another vehicle approached and parked directly behind
Defendant Ammons, and another law enforcement officer, later identified as
Defendant Freeman, got out of the vehicle and started twisting the Plaintiff’s

1 While the Plaintiff’s Declaration states the total distance traveled was 3.3 miles, both the
Plaintiff’s and the Defendant’s briefs state the total distance as approximately 0.3 to 0.4
miles. [Docs. 52 at 6, 55 at 3]. Because it is undisputed that the Plaintiff had multiple
opportunities to pull over before he did, this discrepancy in the alleged distance travelled
does not affect the analysis of the Plaintiff’s claims.
arms “from the rear with both of his hands.” [Id. at ¶ 13]. The Plaintiff asked
the Defendants why he was being arrested, but neither replied. [Id.].

At this point, the Plaintiff observed that Defendant Ammons was a
North Carolina State Trooper, and that Defendant Freeman was a Bryson
City Police Officer. [Id. at ¶ 14]. Defendant Ammons asked the Plaintiff if he

lived in the area, to which the Plaintiff replied that he did, and Defendant
Ammons then said, “I heard about you.” [Id. at ¶ 15]. The Plaintiff repeatedly
asked the Defendants what they meant and why he was being searched and
arrested. [Id.]. The Plaintiff also asked Defendant Ammons to loosen the

handcuff on his left arm; Defendant Ammons replied, “It isn’t supposed to be
comfortable.” [Id. at ¶ 19]. The Plaintiff again asked what Defendant
Ammons had meant when he said he had heard about the Plaintiff. [Id.].

Defendant Ammons did not reply but told the Plaintiff that he was being
charged with (1) resisting, obstructing, and delaying an officer of the law by
not stopping at a checkpoint and producing his driver’s license, and (2) failure
to pull over for a law enforcement vehicle.2 [Id. at ¶ 20]. Defendant Ammons

2 The citation from the Plaintiff’s arrest indicate that he was charged with “operat[ing] a
motor vehicle on a street or highway by failing, upon the approach of a state highway
patrol vehicle that was giving warning signal by appropriate light and siren, audible under
normal conditions and stop the defendant’s vehicle” in violation of N.C. Gen. Stat. 20-
157(a) and “resist[ing], [delay[ing], and obstruct[ing] [Defendant] Ammons, a public officer
holding the office of State Trooper, by failing to stop at a drivers license checkpoint and
produce his drivers license” in violation of N.C. Gen. Stat. 14-223. [Doc. 52-7: Swain
County Citation at 2].
then removed the Plaintiff’s handcuffs; the Plaintiff again asked what he had
meant when he said he had heard about him, and Defendant Ammons swept

his right arm across the front of his body and said, “This,” before getting in
his vehicle and driving away. [Id. at ¶ 21].
Two days later, on March 19, 2017, the Plaintiff went to the emergency

room at Swain Hospital because of lingering pain in his right shoulder. [Id.
at ¶ 26]. The doctor on duty, Dr. Gerard Szytber, described his condition as
“traumatic right rotator cuff and incomplete tear,” and instructed the Plaintiff
to wear a sling for a week and take pain medication. [Id.]. The injury

interfered with the Plaintiff’s work to the point where he had to hire temporary
help to assist with lifting on his farm. [Id. at ¶ 27]. The pain persisted for
several months after the incident. [Id.].

The charges against the Plaintiff never went to trial and were
eventually dismissed in the Plaintiff’s favor. [Doc. 52-11: Swain County
Dismissal at 4].
IV. DISCUSSION

A. Federal § 1983 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).
Because this Court has already dismissed the claims against the
Defendant in his official capacity, the Plaintiff’s constitutional claims will be

analyzed only against the Defendant in his individual capacity.
1. Unreasonable Seizure Claim
The Fourth Amendment protects “[t]he right of the people to be secure

in their persons . . . against unreasonable . . . seizures.” U.S. Const. amend.
IV. Here, the Plaintiff asserts claims for unreasonable seizure on two
different theories: false arrest and malicious prosecution. [Doc. 1: Compl. at
¶ 19].

An arrest is a seizure under the Fourth Amendment, and such a seizure
is reasonable only if based on probable cause. Wilson v. Kittoe, 337 F.3d
392, 398 (4th Cir. 2003). Probable cause to justify an arrest means “facts

and circumstances within the officer’s knowledge that are sufficient to
warrant a prudent person, or one of reasonable caution, in believing, in the
circumstances shown, that the suspect has committed, is committing, or is

about to commit an offense.” Michigan v. DeFillippo, 443 U.S. 31, 37 (1979).
Whether probable cause exists must be determined “in the light of all of the
surrounding circumstances.” Porterfield v. Lott, 156 F.3d 563, 569 (4th Cir.

1998).
The Fourth Circuit has previously held that “when law enforcement
officers observe conduct suggesting that a driver is attempting to evade a
police roadblock—such as unsafe or erratic driving or behavior indicating the

driver is trying to hide from officers—police may take that behavior into
account in determining whether there is reasonable suspicion to stop the
vehicle and investigate the situation further.” U.S. v. Smith, 396 F.3d 579,

585 (4th Cir. 2005). This type of behavior, when considering the totality of
the circumstances, can contribute to a reasonable suspicion that a driver is
engaged in criminal activity. See id.
The forecasted evidence shows that the Plaintiff turned around before

reaching the officer checkpoint. [Doc. 55-1: Plaintiff’s Decl. at ¶ 6]. Although
the Plaintiff maintains that he did not see the checkpoint, and rather turned
around to avoid the line of traffic, it is undisputed that the Defendant

observed the Plaintiff turn around. [Id.]. The Defendant then followed the
Plaintiff in his car and activated his lights and sirens; the Plaintiff did not stop
driving for over three miles. [Id. at ¶¶ 8-9]. While the Plaintiff argues that he

was looking for a safe place to pull over, the uncontroverted evidence is that
Plaintiff passed a number of places where he could have pulled over. As
such, this delay in yielding to the lights and sirens reasonably added to the

Defendant’s suspicion that criminal activity was afoot, and in fact created
probable cause that the Plaintiff was failing to pull over for a law enforcement
vehicle in violation of state law. Therefore, even viewing the facts most
favorably to the Plaintiff, the Defendant was justified in his seizure of the

Plaintiff.
The Plaintiff also asserts a malicious prosecution claim. A malicious
prosecution claim under § 1983 is properly understood as a Fourth

Amendment claim for unreasonable seizure which incorporates certain
elements of the common law tort. Lambert v. Williams, 223 F.3d 257, 261
(4th Cir. 2000). To state a malicious prosecution claim, a plaintiff must allege
that the defendant caused a seizure of the plaintiff pursuant to legal process,

unsupported by probable cause, and the criminal proceedings terminated in
the plaintiff’s favor. Evans v. Chalmers, 703 F.3d 636, 647 (4th Cir. 2012).
Although the charges against the Plaintiff were ultimately dismissed,

the undisputed facts show that the Defendant had probable cause to believe
that the Plaintiff was both avoiding the checkpoint and evading an officer in
violation of state law. Therefore, both the arrest and the charges were

supported by probable clause, and the Plaintiff cannot succeed on either a
claim of false arrest or malicious prosecution.
2. Excessive Force Claim

“Whether an officer has used excessive force is judged by a standard
of objective reasonableness.” Clem v. Corbeau, 284 F.3d 543, 550 (4th Cir.
2002). Moreover, “recognizing that police officers are often forced to make
split-second judgments—in circumstances that are tense, uncertain, and

rapidly evolving—we take care to consider the facts from the perspective of
a reasonable officer on the scene and avoid judging the officer’s conduct with
the 20/20 vision of hindsight.” Id. (quoting Graham v. Connor, 490 U.S. 386,

396-97 (1989)); Stanton v. Elliott, 25 F.4th 227, 233 (4th Cir. 2022) (“In
questioning the split-second decisions of police officers, we must avoid
hindsight bias and try to place ourselves in the heat of the moment.”).
Therefore, to determine whether excessive force exists, the Court must

ask whether the Defendant’s use of force was objectively reasonable
considering the facts and circumstances confronting them, viewed in the light
most favorable to the Plaintiff, without regard to the Defendant’s underlying

intent or motivation. Knibbs v. Momphard, 30 F.4th 200, 214 (4th Cir. 2022);
Hensley on behalf of N. Carolina v. Price, 876 F.3d 573, 582 (4th Cir. 2017).
For this inquiry, Graham instructs courts to evaluate three factors: “the

severity of the crime at issue, whether the suspect poses an immediate threat
to the safety of the officers or others, and whether he is actively resisting
arrest or attempting to evade arrest by flight.” Graham, 490 U.S. at 396.

These factors are not “exclusive,” and courts may identify other “objective
circumstances potentially relevant to a determination of excessive force.”
Kingsley v. Hendrickson, 576 U.S. 389, 397 (2015).
Here, the forecasted evidence shows that Defendant Ammons

activated his lights and sirens and followed the Plaintiff in his car in attempt
to get him to pull over. Once the Plaintiff finally stopped his vehicle, the
Defendant approached the Plaintiff and twisted the Plaintiff’s hands behind

his back while hand cuffing him and placing him under arrest. Although the
Plaintiff has alleged injuries to his arm and shoulder, the undisputed facts
cannot support a finding of excessive force. “An efficient, lawful arrest of a
resisting suspect that causes the suspect to suffer only de minimis injuries

does not constitute excessive force.” Pegg v. Herrnberger, 845 F.3d 112,
120 (4th Cir. 2017).
Indeed, given the Plaintiff’s avoidance of the checkpoint and his

apparent failure to yield to the pursuing officer, the Defendant had reason to
believe that the Plaintiff was resisting arrest or that he had could have had
weapons or other dangerous materials in his car that he did not want the

officers to discover. Viewing the totality of the circumstances at the time of
the Plaintiff’s arrest, the Defendant used objectively reasonable force to
detain the Plaintiff and place him in handcuffs. As such, this claim cannot

survive summary judgment.
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 v. Katz, 533 U.S. 194, 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 Defendant is entitled to qualified
immunity.3

B. State Law Claims
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, 284 F.3d at 550).

3 Moreover, Plaintiff points to no authority clearly establishing that an arrestee who has
resisted as Plaintiff did here must be free of the treatment Plaintiff received.
Here, the Plaintiff’s assault and battery claims are resolved by this
Court’s previous determination in the context of the Plaintiff’s § 1983 claims

that the Defendant’s 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.

In addition to their substantive issues, the Plaintiff’s state tort law
claims against the Defendant in his individual capacity are barred under the
doctrine of public official immunity. Under North Carolina law, “[a] public
official can only be held individually liable for damages when the conduct

complained of is malicious, corrupt, or outside the scope of official authority.”
Hunter v. Transylvania Cty. Dep’t of Soc. Servs., 207 N.C. App. 735, 737,
701 S.E.2d 344, 346 (2010). A public official acts “with malice when he

wantonly does that which a man of reasonable intelligence would know to be
contrary to his duty and which he intends to be prejudicial or injurious to
another.” Grad v. Kaasa, 321 S.E.2d 888, 890 (1984); see also Bailey v.
Kennedy, 349 F.3d 731, 742 (4th Cir. 2003). “An act is wanton when it is

done of wicked purpose, or when done needlessly, manifesting a reckless
indifference to the rights of others.” Id.
Here, nothing in the forecasted evidence indicates that the Defendant

acted maliciously, corruptly, or outside the scope of his official authority. On
the contrary, as previously discussed, the Defendant acted reasonably under
the circumstances. Therefore, the Defendant is entitled to summary
judgment with respect to the Plaintiff's state law claims for assault and
battery.

ORDER
IT IS, THEREFORE, ORDERED that the Defendant Aaron C.
Ammons’ Motion for Summary Judgment [Doc. 51] is GRANTED, and the
Plaintiff's claims against Defendant Ammons are hereby DISMISSED WITH
PREJUDICE.
IT IS SO ORDERED.

Signed: November 17, 2023

5 wail
< Reidinger wey
Chief United States District Judge ely

16

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10260403. Public record. Not legal advice.