Kloepfer v. Cherokee County Sheriff's Department

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NORTH CAROLINA

ASHEVILLE DIVISION

1:23-cv-158-MOC-WCM

JASON H. KLOEPFER, )

ALISON M. MAHLER, )

)

Plaintiffs, )

)

vs. ) ORDER

)

CHEROKEE COUNTY SHERIFF’S )

DEP’T, ET AL., )

)

Defendant. )

THIS MATTER comes before the Court on a Partial Motion to Dismiss, filed by

Defendants Cherokee County Sheriff's Department, Dennis Dore, Adam Erickson, Paul Fry, J.T.

Gray, Jason Hall, Justin Jacobs, Don Latulipe, Mitchell Morgan, Drew Payne, Nolan Queen,

Dustin Smith, Jessica Stiles, Milton Teasdale, Cody Williams, David Williams, (Doc. No. 21),

and on a separate Motion to Dismiss, filed by Defendant Darryl Brown, (Doc. No. 24). Plaintiffs

responded in opposition to the motions, and Defendants replied. (Doc. Nos. 28, 29, 31, 32). For

the following reasons, the Partial Motion to Dismiss will be GRANTED IN PART and

DENIED IN PART, and Defendant Brown’s Motion to Dismiss will be GRANTED.

I. BACKGROUND

A. Summary and Procedural Background

Plaintiffs Jason Kloepfer and Alison Mahler bring this Complaint arising out of a

shooting on December 15, 2022, against various Defendants, including officers of the Eastern

Band of Cherokee Indian Police Department (“EBCIPD”); the Cherokee County Sheriff’s

Department (“CCSD”); Cherokee County Sheriff Dustin Smith, and CCSD deputies Justin

Jacobs, David Williams, Milton Teasdale, Mitchell Morgan, Drew Payne, Dennis Dore, Cody

Williams (collectively “CCSD Supervisors”); CCSD deputies Nolan Queen, Jessica Stiles, J.T.

Gray, Jason Hall, Don Latulipe, Adam Erickson, and Paul Fry (along with CCSD Supervisors,

“CCSD Defendants”); and former CCDS attorney Darryl Brown. Plaintiffs sue CCSD

Defendants in both their individual and official capacities.

Plaintiffs bring the following claims: (1) violation of 42 U.S.C. § 1983 against all CCSD

Defendants except CCSD itself (Claim One); violation of 42 U.S.C. § 1983 with Monell (435

U.S. 658 (1978)) liability against CCSD and CCSD Supervisors (Claim 2); negligence and

negligence per se against CCSD Defendants and CCSD itself (Claim 3); gross negligence against

CCSD and CCSD Defendants (Claim 4); abuse of process by CCSD, CCSD Supervisors, and Fry

(Claim 5); malicious prosecution by CCSD, CCSD Supervisors, and Fry (Claim 6); unlawful

detention against CCSD Defendants and CCSD itself (Claim 7); defamation against CCSD,

Sheriff Smith, and Brown (Claim 8); intrusion and invasion of privacy against CCSD Defendants

and CCSD itself (Claim 9); negligent infliction of emotional distress against CCSD Defendants

and CCSD itself (Claim 10); intentional infliction of emotional distress against CCSD

Defendants and CCSD itself (Claim 11); negligent hiring and supervision/retention by CCSD

and CCSD Supervisors (Claim 12); trespass against CCSD Defendants and CCSD itself (Claim

13); civil conspiracy endorsed and ratified after the fact against CCSD Defendants and CCSD

itself (Claim 14); assault and battery against CCSD, CCSD Supervisors, and Queen (Claim 15);

and punitive damages against CCSD Defendants and CCSD itself (Claim 25).

CCSD and CCSD Defendants have filed a partial motion to dismiss, arguing that: (1)

Defendant CCSD must be dismissed because it is not a sueable entity; (2) all Section 1983

official capacity claims against the individual Defendants must be dismissed as duplicative

except for the claim against Sheriff Smith; (3) the claim against Sheriff Smith is barred because

Smith has not waived governmental immunity; (4) the negligence-based state tort claims against

the individual Defendants must be dismissed based on public official immunity; (5) Defendants

Queen, Stiles, Gray, Hall, Latulipe, and Fry must be dismissed because Plaintiff does not allege

that any of these Defendants were present when Kloepfer was shot; and (6) the unlawful

detention claim should be dismissed as to all Defendants because Plaintiffs do not state a

cognizable claim for unlawful detention.

Defendant Brown, former CCDS attorney, has filed a separate motion to dismiss the

claims against him for defamation and punitive damages. Defendant Brown asserts that Plaintiff

Kloepfer’s1 claim should be dismissed based on (1) the defense of qualified immunity; (2) the

defense of sovereign immunity; (3) the doctrine of public official immunity; (4) absolute

privilege; (5) qualified privilege; (6) failure to plead the elements of defamation; (7) failure to

support the claim for joint and several liability; and (8) failure to state a claim for punitive

damages.

B. Plaintiff’s Allegations

On December 12, 2022, Plaintiffs’ neighbor (Ms. Floyd) called 911 and told the operator

that her neighbor, Plaintiff Jason Kloepfer, was setting off fireworks and threatening to kill the

entire neighborhood. (Doc. No. 1 ¶ 60). Ms. Floyd also informed the operator that Kloepfer fired

ten rounds from a gun. (Id. ¶ 77). CCSD deputies Dennis Dore, Adam Erickson, and Cody

Williams arrived at Plaintiffs’ property around 11:18 p.m. (Id. ¶ 91). Ms. Floyd also reported that

Kloepfer had been arguing with his girlfriend, Plaintiff Alison Mahler, and that argument had

ceased following the gunshots. (Id. ¶ 115).

CCSD deputies knocked on Plaintiffs’ door around 11:20 p.m. to no response. (Id. ¶¶

1 The defamation claim is brought only by Kloepfer.

123–27, 133–34). At 11:55 p.m., Dore, Erickson, and Cody Williams contacted CCSD

Lieutenant Mitch Morgan with their observations. (Id. ¶ 144). Shortly thereafter, Dore began

obstructing Plaintiffs’ surveillance cameras by “bagging” them with cloth. (Id. ¶ 146). At 11:58,

Morgan informed dispatch that the subject was barricaded and requested the EBCIPD SWAT

team. (Id. ¶ 148). Lieutenant Morgan also requested that the dispatcher contact the on-call

investigator to initiate a search warrant “to justify CCSD presence” on Plaintiffs’ property. (Id. ¶

159). CCSD Captain David Williams contacted Sheriff Smith, who agreed that CCSD should ask

the EBCIPD SWAT team to assist. (Id. ¶ 164).

CCSD Lieutenant Drew Payne arrived at Plaintiffs’ property at 12:45 a.m., and

Lieutenant Morgan arrived at 1:03 a.m. (Id. ¶¶ 177, 178). CCSD contacted ECBIPD SWAT team

commander Scott Buttery at 12:33 a.m. (Id. ¶ 179). Around 1:03 a.m., Buttery contacted dispatch

to initiate a new Mutual Aid Agreement (“MAA”) between ECBIPD and CCSD.2 (Id. ¶ 186). At

1:09 a.m., Captain David Williams arrived at Plaintiffs’ property. (Id. ¶ 192). Lieutenant Morgan

then instructed Erickson to walk to Ms. Floyd’s house and verify her accusations. (Id. ¶ 206).

Floyd played a video for Erickson around 2:00 a.m. (Id. ¶ 208). Plaintiffs contend that this video

disproved Floyd’s initial story that Kloepfer had been shooting his gun and threatening to kill his

neighbors. (Id. ¶ 217).

After Erickson viewed the video, CCSD Lieutenant Milton Teasdale applied for a

warrant to search Plaintiffs’ property. (Id. ¶¶ 238, 256). Plaintiff contends that Teasdale’s

affidavit supporting his search warrant was based on Ms. Floyd’s report, which Teasdale by then

knew to be false. (Id. ¶¶ 245–46).

Around 3:00 a.m. Sheriff Smith and ECBIPD officer Roger Neadeau, Jr., executed the

2 A mutual aid agreement allows cooperation between law enforcement agencies in different

jurisdictions. See N.C. GEN. STAT. §§ 1E-10, 160A-288.

MAA. (Id. ¶¶ 270–71). At 4:54 a.m. the ECBIPD SWAT team arrived at Plaintiffs’ property and

tossed a drone robot through the door of Plaintiffs’ home. (Id. ¶ 300). Several minutes later, at

4:57 a.m., the robot woke Plaintiffs, who were sleeping in their bed. (Id. ¶ 307). Plaintiffs heard

Sergeant Dore instruct Kloepfer to exit the house with his hands up. (Id. ¶ 309). Kloepfer picked

up the drone and a cigarette and opened the door. (Id. ¶¶ 316–17, 322). ECBIPD SWAT officers

Messer, Harris, and Ferguson fired 15 shots, two of which struck Kloepfer. (Id. ¶¶ 325–26).

Mahler was not hit. (Id. ¶ 332). CCSD deputies yelled at Mahler to walk down the ramp,

handcuffed her, and put her in the back of a patrol SUV. (Id. ¶ 339–40). Mahler was transported

to the Sheriff’s Office where she was kept for hours in a small room under locked guard. (Id. ¶

365). After answering questions, she was released several hours later. (Id. ¶¶ 365, 367).

After SWAT officers shot Kloepfer, Teasdale and Dore entered Plaintiffs’ home. (Id. ¶

355). Teasdale dropped the warrant on a table and announced, “search warrant.” (Id.). Sheriff

Smith issued a press release, stating that he was not at the scene and that Kloepfer argued with

officers before the shooting. (Id. ¶¶ 348, 375–80). Kloepfer was charged with communicating

threats and resisting a public officer, but the charges were dismissed on March 1, 2023. (Id. ¶¶

369, 373).

On January 18, 2023, Kloepfer released his home surveillance camera videos, proving

Defendants’ accounts false. (Id. ¶ 407). Sheriff Smith subsequently issued a new press release,

stating that the initial release relied on ECBIPD’s information. (Id. ¶ 408).

Plaintiff’s defamation claim pertains to the press release prepared by Defendant Brown,

former attorney for Cherokee County Sheriff’s Department. That release, prepared and published

by Brown on December 13, 2022, read in relevant part:

Recognizing there was an armed suspect present and the potential for a hostage

situation, CCSD obtained a search warrant and requested assistance from

EBCIPD SWAT. The suspected shooter engaged in a verbal altercation with

officers and emerged from a camper trailer and confronted officers. Members of

the SWAT team fired upon the suspect and wounded him. … After consultation

with the DA, Jason has been charged with Communicating Threats and Resist,

Obstruct, and Delay. The matter remains under investigation and more charges

may follow.

(Id. ¶ 377).

II. STANDARD OF REVIEW

Defendants move to dismiss under Federal Rules of Civil Procedure 12(b)(1), 12(b)(2)

and 12(b)(6).

Faced with a motion to dismiss challenging the Court's subject matter jurisdiction under

FED. R. CIV. P. 12(b)(1), Plaintiff bears the burden to show that federal jurisdiction is proper. See

Int’l Longshoremen’s Ass’n v. Va. Int’l Terminals, Inc., 914 F. Supp. 1335, 1338 (E.D. Va.

1996) (citing McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 189 (1936)).

Faced with a motion to dismiss challenging personal jurisdiction under FED. R. CIV. P.

12(b)(2), Plaintiff bears the burden to show by a preponderance of the evidence that this Court

has personal jurisdiction over Defendants. Combs v. Bakker, 886 F.2d 673, 676 (4th Cir. 1989).

A plaintiff need only “make a prima facie showing of a sufficient jurisdictional basis in order to

survive the jurisdictional challenge.” Id. (citation omitted).

Reviewing a motion to dismiss under FED. R. CIV. P. 12(b)(6), the Court must accept as

true all factual allegations in the Complaint and draw all reasonable inferences in the light most

favorable to the plaintiff. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555–56 (2007).

However, to survive a Rule 12(b)(6) motion, the plaintiff’s “[f]actual allegations must be enough

to raise a right to relief above the speculative level,” with the complaint having “enough facts to

state a claim to relief that is plausible on its face.” Id. at 570. “[T]he tenet that a court must

accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions,”

and “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory

statements” are insufficient. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550

U.S. at 555). A complaint may survive a motion to dismiss only if it “states a plausible claim for

relief” that “permit[s] the court to infer more than the mere possibility of misconduct” based

upon “its judicial experience and common sense.” Id. at 679 (citations omitted).

III. DISCUSSION

CCSD and CCSD Defendants have filed a partial motion to dismiss, arguing that: (1)

Defendant CCSD must be dismissed because it is not a sueable entity; (2) all Section 1983

official capacity claims against the individual Defendants must be dismissed as duplicative

except for the claim against Sheriff Smith; (3) the claim against Sheriff Smith is barred because

Smith has not waived governmental immunity; (4) the negligence-based state tort claims against

the individual Defendants must be dismissed based on public official immunity; (5) Defendants

Queen, Stiles, Gray, Hall, Latulipe, and Fry must be dismissed because Plaintiff does not allege

that any of these Defendants were present when Kloepfer was shot; (5) the claim for punitive

damages must be dismissed; and (6) the unlawful detention claim must be dismissed as to all

Defendants because Plaintiffs do not allege a cognizable unlawful detention claim.

Defendant Brown has filed a separate motion to dismiss, seeking dismissal of the claims

against him for defamation and punitive damages.

In their response to Defendants’ partial motion to dismiss, Plaintiffs concede that

dismissal is appropriate for the following CCSD Defendants and claims: (1) Cherokee County

Sheriff’s Department in its entirety; (2) all official capacity federal claims as to the Section 1983

claim for relief against all CCSD Defendants except Sheriff Smith, and all official capacity

federal claims as to the Section 1983 Monell claim against all CCSD Supervisors except Sheriff

Smith; (3) all individual capacity claims against all CCSD Supervisors as to the Section 1983

Monell claim; (4) all official capacity claims against all CCSD Defendants except Sheriff Smith

as to the claims for negligence, gross negligence, abuse of process, malicious prosecution,

unlawful detention, intrusion and invasion of privacy, negligent infliction of emotional distress,

negligent hiring and supervision/retention, trespass, civil conspiracy, and assault and battery; and

(5) all CCSD Defendants in their official capacity as to the punitive damages claim.

Thus, the only remaining issues are (1) whether Plaintiff states a claim against Queen,

Stiles, Gray, Hall, Latulipe, and Fry in their individual capacities for excessive force in violation

of Section 1983, as well as various state law claims3; (2) whether the insurance coverage

attached to the Defendants’ motion to dismiss waives immunity for Sheriff Smith in his official

capacity for the state tort claims; (3) whether Defendants are entitled to public official immunity

in their individual capacity on the claims for negligence, negligent infliction of emotional

distress, and negligent hiring and supervision/retention; and (4) whether Plaintiffs state a claim

for unlawful detention.

First, the Court finds that Sheriff Smith has not waived governmental immunity by virtue

of the North Carolina Association of County Commissioner (“NCACC”) liability insurance

policy attached to Defendants’ motion to dismiss.4 Plaintiffs acknowledge that the law supports

Defendants’ argument that sovereign immunity bars all official capacity claims against Sheriff

Smith. Plaintiffs ask the Court, however, to go against precedent because the “masequerade of

3 Defendants contend that Plaintiffs make no argument opposing the dismissal of the individual

capacity claims for civil conspiracy and this claim is therefore abandoned. The Court declines to

dismiss the civil conspiracy claim at this time.

4 Plaintiffs are correct that the Sheriff’s surety bond waives immunity only to the extent of the

bond. (Doc. No. 28, p. 4). See Summey v. Barker, 142 N.C. App. 688, 690 (2001). The presence

of the surety bond, however, does not prevent the Court from holding that there is no waiver of

governmental immunity on the liability policy. See McMahan v. Griffin, No. 1:22cv28 et al.,

2023 WL 5341285, at **25–26 (W.D.N.C. Aug. 17, 2023) (unpublished).

purchasing a policy that immediately cancels itself out violates the unambiguous language from

the statute” and “the law does not allow a county to buy meaningless insurance.” (Doc. No. 28 at

8). North Carolina appellate courts have rejected both arguments. In Estate of Earley v.

Haywood County Department of Social Services, 204 N.C. App. 338, 343 (2010), the Court

upheld an identical exclusion against the “masquerade” and “cancel…out” arguments advanced

by Plaintiffs:

We acknowledge the arguably circular nature of the logic employed in Patrick.

The facts are that the legislature explicitly provided that governmental immunity

is waived to the extent of insurance coverage, but the subject insurance contract

eliminates any potential waiver by excluding from coverage claims that would be

barred by sovereign immunity. Thus, the logic in Patrick boils down to:

Defendant retains immunity because the policy doesn’t cover his actions and the

policy doesn’t cover his actions because he explicitly retains immunity.

Nonetheless in this case, as in Patrick, where the language of both the applicable

statute and the exclusion clause in the insurance contract are clear, we must

decline Plaintiff’s invitation to implement “policy” in this matter. Any such policy

implementation is best left to the wisdom of our legislature.

In Magana v. Charlotte-Mecklenburg Bd. of Educ., 183 N.C. App. 146, 149 (2007), the North

Carolina Court of Appeals rejected the same argument Plaintiffs advance here, stating, “The

plaintiffs have argued that such a reading of the policy renders it meaningless, offering no

coverage for any eventuality. We cannot agree. There are several instances where immunity is

not available either because of federal or state statutes, or because of exceptions to the sovereign

immunity doctrine.” See also Russ v. Causey, 732 F. Supp. 2d 589, 611 (E.D.N.C. 2010)

(rejecting Plaintiff’s claim that exclusion in same policy at issue in this case was “illusory”).

Sheriff Smith has not waived sovereign immunity by operation of the NCACC liability policy.

Next, the Court finds that to the extent Defendants are sued in their individual capacities

they are entitled to public official immunity only as to claims sounding in negligence. A public

official is immune from personal liability for “mere negligence in the performance of his duties,

but he is not shielded from liability if his alleged actions were corrupt or malicious or if he acted

outside and beyond the scope of his duties.” Slade v. Vernon, 110 N.C. App. 422, 428 (1993).

Thus, Plaintiff’s claims for negligence, negligent infliction of emotional distress, and negligent

hiring against Defendants in their individual capacities must be dismissed. See McCullers v.

Lewis, 265 N.C. App. 216, 222 (2019) (“Since public official immunity may only insulate public

officials from allegations of mere negligence, only those of Plaintiffs’ causes of action sounding

in negligence come within the doctrine's reach.”); Shaw v. Stroud, 13 F.3d 791, 803 (4th Cir.

1994) (stating that “[a] negligent infliction of emotional distress claim, by its very definition,

necessarily alleges only negligence. Therefore, [defendant public official] is absolutely immune”

from this claim.); Hines v. Johnson, No. 1:19cv515, 2020 WL 1516397, at *21 (M.D.N.C. Mar.

20, 2020) (unpublished) (granting Defendants’ motion to dismiss negligent infliction of

emotional distress claim based on public official immunity). Plaintiffs’ negligence claims are

dismissed.

Next, Defendants seek dismissal of Defendants Queen, Stiles, Gray, Hall, Latulipe, and

Fry on the ground that Plaintiffs have not alleged that these defendants were present when

ECBIPD officers shot Plaintiff Jason Klopfoer. Defendants contend that Plaintiffs have alleged

only that these defendants were employed by the Sheriff’s Office, and Fry is only alleged to have

taken a warrant out against Kloepfer after the shooting. Nevertheless, given the liberal pleading

standards of Iqbal and Twombly, the Court will allow the claims against these Defendants to

proceed to discovery. If Plaintiffs learn through discovery that any of these Defendants were not

involved in the alleged conduct underlying Plaintiffs’ claims, Plaintiffs shall voluntarily dismiss

these Defendants. The Court denies Defendants’ motion to dismiss the claims against Defendants

Queen, Stiles, Gray, Hall, Latulipe, and Fry.

Next, Plaintiffs allege that CCSD Defendants detained Plaintiff Mahler against her will

after officers shot Kloepfer. This allegation gives Defendants “fair notice” of the claim and facts

supporting it. The Court will deny the motion to dismiss Plaintiffs’ unlawful detention claim at

this time.

As to the punitive damages claim against Defendants in their individual capacities, the

Court denies the motion to dismiss because the Court is allowing some substantive claims to go

forward. However, punitive damages based on any official capacity claims are dismissed. See

Newport v. Fact Concerts, 453 U.S. 247, 266–67 (1981) (holding that a municipality is immune

from punitive damages under 42 U.S.C. § 1983); Long v. City of Charlotte, 306 N.C. 187, 208

(1982) (holding that punitive damages are not allowed against governmental bodies).

Plaintiff’s defamation claim is based on a statement made in a press release that

Defendant Brown prepared and published on December 13, 2022:

Recognizing there was an armed suspect present and the potential for a hostage

situation, CCSD obtained a search warrant and requested assistance from

EBCIPD SWAT. The suspected shooter engaged in a verbal altercation with

officers and emerged from a camper trailer and confronted officers. Members of

the SWAT team fired upon the suspect and wounded him. … After consultation

with the DA, Jason has been charged with Communicating Threats and Resist,

Obstruct, and Delay. The matter remains under investigation and more charges

may follow.

(Doc. No. 1 ¶ 377). When he prepared and published the statement, Defendant Brown was the

County Attorney for Cherokee County, North Carolina and charged with providing legal advice

to CCSD. As such, he was a “public official.”

“The defense of public official immunity is a derivative form of governmental immunity.

Public official immunity precludes suits against public officials in their individual capacities and

protects them from liability as long as a public officer lawfully exercises the judgment and

discretion with which he is invested by virtue of his office, keeps within the scope of his official

authority, and acts without malice or corruption.” Mitchell v. Pruden, 251 N.C. App. 554, 559

(2017). “Thus, a public official is immune from suit unless the challenged action was (1) outside

the scope of official authority, (2) done with malice, or (3) corrupt.”5 Wilcox v. City of

Asheville, 222 N.C. App. 285, 288 (2012). “A defendant 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.” Mitchell, 251 N.C. App. at 559.

“It is well settled that absent evidence to the contrary, it will always be presumed that

public officials will discharge their duties in good faith and exercise their powers in accord with

the spirit and purpose of the law. This presumption places a heavy burden on the party

challenging the validity of public officials’ actions to overcome this presumption by competent

and substantial evidence.” Strickland v. Hedrick, 194 N.C. App. 1, 10 (2008). Evidence to rebut

this presumption “must be sufficient by virtue of its reasonableness, not by mere supposition. It

must be factual, not hypothetical; supported by fact, not by surmise.” Mitchell, 251 N.C. App. at

560 (citation omitted). A conclusory allegation that a public official acted maliciously or

corruptly is insufficient to withstand a motion to dismiss; the facts alleged must support such a

conclusion. Doe v. Wake Cnty., 264 N.C. App. 692, 695–96 (2019).

Plaintiff Kloepfer alleges two theories of defamation claims against Brown: (1) that he

“failed to exercise ordinary care in order to determine whether the statements were false” and

“should have known” the Subject Statement was false; or (2) that he “knew” the statements were

false. (Doc. No. 1 ¶¶ 560–61). The first category sounds in negligence. Because public officials

“cannot be held individually liable for damages caused by mere negligence in the performance of

their governmental or discretionary duties ....,” any negligence claim must be dismissed. Meyer

5 Public officer immunity extends to defamation claims. Dempsey v. Halford, 183 N.C. App. 637

(2007).

v. Walls, 347 N.C. 97, 112 (1997).

To the extent Plaintiff alleges Defendant Brown published the statement while knowing it

was false, Plaintiff does not sufficiently allege malice as to Defendant Brown. As a public

officer, Defendant Brown is entitled to the presumption that he discharged his duties on the

morning or day of December 13 in his role as the Sheriff’s Department attorney. Threadbare

recitals that Defendant Brown “knew” statements made on December 13 were false when made

are too conclusory to survive the Twombly and Iqbal standard. So too is the conclusory

allegation that his conduct was “illegal, reprehensible, egregiously wrongful, reckless and

willful.” (Doc. 1 ¶ 563). Thus, Defendant Brown is entitled to public official immunity against

the defamation claim.

Alternatively, absolute privilege bars Plaintiff Kloepfer’s claims against Defendant

Brown. Plaintiffs allege that on December 13, Lieutenant Tisdale appeared before Magistrate

Postell and presented information under oath that the Cherokee County Communications Center

received a 911 call from a neighbor regarding gun shots, arguing, screaming, and other details.

(Id. ¶ 245); (2) that a search warrant was issued at 2:14 a.m. (Doc. 1 at p. 4; ¶ 245); (3) that, later

on December 13, various CCSD officers appeared before Magistrate Postell and provided further

sworn statements to him regarding Plaintiff Kloepfer;6 (4) that on December 20, 2022, CCSD

6 The sworn statements alleged were (1) by Deputy Frye (that “Jason Kloepfer threatened to

physically injure the person of Emily Floyd on December 13, 2022” and that “such threat was

communicated to Emily Floyd by stating that he was going to kill the neighbors and the threat

was made in a manner and under circumstances which would cause a reasonable person to

believe that the threat was likely to be carried out and the person threatened believed that the

threat would be carried out” (Id. ¶¶ 509, 526); (2) by Sergeant Dore (that "on December 13,

Jason unlawfully and willfully did resist, delay, and obstruct Sergeant Dore, a public officer in

the CCSD, by refusing to comply with orders given to Jason, at the time the officer was

discharging and attempting to discharge an official duty by while investigating a disturbance call

located at Kloepfer’s residence” (Id. ¶ 512); and (3) by Sergeant Dore (that Jason “unlawfully

and willfully did resist, delay, and obstruct Sergeant Dore . . . by refusing to comply with orders

deputies arrested Plaintiff and served him with arrest warrants for Communicating Threats and

for Resisting a Public Officer and gave him an unsecured bond (Id. ¶ 371); and (5) the charges

were dismissed on March 1, 2023. (Id. ¶¶ 373, 518).

Plaintiff does not allege that Defendant Brown was involved in issuing search warrant or

arrest warrants. But even if Brown was involved, the criminal judicial process was underway

before the December 13 publication at issue and continued until the criminal charges were

dismissed on March 1, 2023. In North Carolina, “[t]he general rule is that a defamatory statement

made in the due course of a judicial proceeding is absolutely privileged and will not support a

civil action for defamation, even though it be made with express malice.” Jarman v. Offutt, 239

N.C. 468, 472 (1954). The privilege can apply to trial counsel as well as investigatory counsel.

See Topping v. Meyers, 270 N.C. App. 613, 621–22 (2020).

North Carolina courts apply the absolute privilege liberally, holding that to fall outside

the privilege, the matter “must be so palpably irrelevant to the subject matter of the controversy

that no reasonable man can doubt its irrelevancy or impropriety.” Scott v. Statesville Plywood &

Veneer Co., 240 N.C. 73, 76 (1954). “If it is so related to the subject matter of the controversy

that it may become the subject of inquiry in the course of the trial, the rule of absolute privilege

is controlling.” Id. In Scott, the court concluded the complaint failed to state a claim for libel

where it affirmatively appeared on the face of the complaint that the language used by the

defendant was from pleadings and other papers connected with and part of a judicial

proceedings. This was true regardless of whether the plaintiff’s complaint mirrored the judicial

proceeding materials or “mere[] innuendoes arising therefrom” and notwithstanding the fact that

the libelous statement about the judicial proceedings was published in a newspaper of wide

given to Jason . . . while investigating a disturbance call located at Kloepfer’s residence.” (Id. ¶

530).

circulation as a part of the proceedings. Id.; see also Wall v. Blalock, 245 N.C. 232, 233 (1956)

(affirming dismissal of complaint based on absolute judicial privilege).

The absolute privilege may apply to proposed or pending litigation. See, e.g., Burton v.

NCNB Nat’l Bank of North Carolina, 85 N.C. App. 702, 706–07 (N.C. App. 1987) (finding

absolute privilege where an attorney’s letter containing defamatory statements was relevant to

bank's action against alleged guarantor to recover on debt ); see also Pacific Furniture Mfg. Co.

v. Preview Furniture Corp. 626 F. Supp. 667, 678–79 (M.D.N.C. 1985) (citing Restatement

(Second) of Torts § 586 & comment a (1976); Hoover v. Van Stone, 540 F. Supp. 1118, 1122

(D. Del. 1982) (“the protection afforded by the privilege is absolute; so long as the statement is

pertinent to, and made in the course of, a judicial proceeding, even a showing of malice will not

divest the statement of its immune status”)). Moreover, where an attorney was allegedly involved

in a defamatory press release, courts have concluded that absolute immunity applies, even where

litigation was not yet filed. See, e.g., Yang v. Lee, 163 F. Supp. 2d 554, 561–62 (4th Cir. 2001)

(applying California law) (where the communication was made in serious contemplation of

litigation); Mosley v. Observer Pub. Co., 422 Pa. Super. 255 (1993) (applying absolute immunity

to attorney’s statements in application for search warrant and newspaper’s republication of

them); Johnson v Cartwright, 355 F.2d 32 (8th Cir. 1966) (applying Iowa law) (holding that an

attorney's statements to the press which related to a probable suit involving his client were

absolutely privileged).

Here, according to Plaintiffs’ allegations, when the statement at issue was allegedly

published, a search warrant had been issued by a magistrate, the district attorney had been

consulted, and charges were pending. The statement largely mirrors the information provided to

Magistrate Postell, which resulted in the issuance of the search order and arrest warrant.

Therefore, the statement is not “so palpably irrelevant to the subject matter of the controversy

that no reasonable man can doubt its irrelevancy or impropriety.” Scott, 240 N.C. at 76. As such,

the statement is protected by an absolute privilege. See, e.g., Jones v. William H. Coward, 193

N.C. App. 231 (2008) (affirming dismissal of defamation claim against attorney and law firm

based on statement made by attorney in judicial proceeding).

The Court further finds that Brown is alternatively entitled to qualified privilege.

Qualified privilege is a defense to defamatory publication. Clark v. Brown, 99 N.C. App. 255,

262 (1990). “A defamatory statement is qualifiedly privileged when made (1) on subject matter

(a) in which the declarant has an interest, or (b) in reference to which the declarant has a right or

duty, (2) to a person having a corresponding interest, right or duty, (3) on a privileged occasion,

and (4) in a manner and under circumstances fairly warranted by the occasion and duty, right or

interest. This duty may be public, personal, or private and of a legal, judicial, political, moral, or

social nature.” Id. (internal citations and quotations omitted). Boston v. Webb, 73 N.C. App. 457,

461 (1985). “If the court determines as a matter of law that the occasion is privileged, defendant

has ‘a presumption that the statement was made in good faith and without malice.’” Clark, 99

N.C. App. at 262. “To rebut this presumption, the plaintiff must show actual malice.” Phillips v.

Winston–Salem/Forsyth County Bd. of Educ., 117 N.C. App. 274, 278 (1994). As the Court has

already discussed, Plaintiff Kloepfer does not sufficiently allege actual malice by Brown. Thus,

the defamation claim against Brown is also barred by qualified immunity.

IV. CONCLUSION

In sum, the Cherokee County Sheriff’s Department is dismissed as a Defendant, the

official capacity claims against the individual Defendants are dismissed as redundant, and the

individually named Defendants enjoy public official immunity as to the claims for negligence,

negligent infliction of emotional distress, and negligent retention and hiring/supervision.

Moreover, as to the official capacity claims against Sheriff Smith, Sheriff Smith enjoys

governmental immunity and has not waived immunity through the purchase of liability

insurance. Furthermore, Plaintiff Kloepfer’s claims against Defendant Brown are dismissed. The

punitive damages claim against the Sheriffs Office in its official capacity is also dismissed.

At the time, the Court will deny the motion to dismiss the remaining claims as to all

remaining named Defendants so that the parties may proceed to discovery. The parties may re-

argue each claim as to each individual Defendant on summary judgment.

ORDER

IT IS, THEREFORE, ORDERED that the Motion to Dismiss, (Doc. No. 21), filed by

Defendants Cherokee County Sheriff's Department, Dennis Dore, Adam Erickson, Paul Fry, J.T.

Gray, Jason Hall, Justin Jacobs, Don Latulipe, Mitchell Morgan, Drew Payne, Nolan Queen,

Dustin Smith, Jessica Stiles, Milton Teasdale, Cody Williams, David Williams, is GRANTED

in PART and DENIED in PART. The Motion to Dismiss, (Doc. No. 24), filed by Defendant

Darryl Brown is GRANTED.

i )

ager

Max O. Cogburn i yg

United States District Judge Toa gt

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