# Shaw v. Town of Mint Hill

> District Court, W.D. North Carolina · May 14, 2024

URL: https://www.frixlaw.com/law-library/cases/10261075

## Case

- **Court:** District Court, W.D. North Carolina
- **Decided:** May 14, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:23-cv-624-MOC-SCR

WILLIE “WILL” SHAW, )
)
)
Plaintiff, )
)
vs. ) ORDER
)
)
TOWN OF MINT HILL, et al., )
)
)
Defendants. )
___________________________________ )

THIS MATTER comes before the Court on Defendants John D. White and Amanda B.
Nosalek’s motion to dismiss Plaintiff’s claims against them. (Doc. No. 16). Plaintiff opposes the
motion (Doc. No. 19). Defendants declined to reply to Plaintiff’s response. (Doc. No. 21). This
matter is now ripe for disposition.
I. BACKGROUND
This case is about the state and local law enforcement officers who investigated Plaintiff
in connection with the death of an elderly woman. As a result of Defendant officers’
investigation, Plaintiff was arrested, indicted, and entered an Alford plea to the North Carolina
crime of Felony Patient Abuse. Plaintiff spent more than five years incarcerated before his
eventual exoneration.
This motion to dismiss concerns Plaintiff’s allegations against state law enforcement
officers. Defendants John D. White and Amanda Nosalek, then agents with the North Carolina
State Bureau of Investigation (“SBI”), assisted local law enforcement’s investigation of Plaintiff.
1
Plaintiff sues White and Nosalek (hereinafter “SBI Defendants”) in their individual capacities
under 42 U.S.C. § 1983, alleging the SBI officers violated his Fourteenth Amendment rights by
(1) fabricating evidence; (2) initiating criminal proceedings without probable cause; and (3)
failing to investigate in good faith. Plaintiff further raises North Carolina state law claims of
malicious prosecution and gross negligence against both SBI Defendants.

The following recitation of the facts focuses on the conduct of the SBI Defendants and
Plaintiff’s related claims.
A. Factual Background
In May of 2015, Plaintiff was a Certified Nursing Assistant (“CNA”) at the Lawyers Glen
Retirement Living Center (“Lawyers Glen”) in Mint Hill, North Carolina. Plaintiff’s duties
included assisting residents with bathing and personal hygiene. Doris Starnes (“Starnes”), an 86-
year-old woman suffering from dementia among other ailments, was one such resident. Starnes
was incontinent and wheelchair dependent. She also took prescription blood thinner.
Shortly after 10:00 p.m. on the evening of May 14, 2015, Plaintiff entered Starnes’ room

to find her in a state of distress. Her bedsheets were soiled with blood, feces, and coffee-ground
emesis. Plaintiff sought help from other staff, who called EMS.
First responders transported Starnes to Novant Health Matthews Medical Center
(“Novant”), where an ER physician discovered a brisk, profound vaginal bleed. Physicians took
Starnes off a blood thinner and ordered a transfusion. Vaginal examination using a speculum
revealed two sources of bleeding: one 1.5cm laceration on Starnes’ perineum, and another 4.5cm
curved laceration in her vagina. Both lacerations were sutured, and photographs taken. Starnes
succumbed to complications from aspiration pneumonia on May 17, 2015.
A Novant Ob-Gyn physician noted Starnes’ vaginal laceration as unusual. She
2
consequently ordered a rape kit exam and notified the Mint Hill Police Department (“MHPD”)
on May 15. Upon receiving that notification, MHPD employees contacted Defendant White to
request SBI assistance with their investigation.
On May 18, 2015, investigators summoned Plaintiff to MHPD for questioning. Defendant
White falsely represented to Plaintiff that polygraph results were admissible at trial, and that

Starnes’ son was a Mecklenburg County judge. Plaintiff provided oral DNA swabs and agreed to
return for a polygraph test. During his questioning, Plaintiff informed Defendant White of
Starnes’ habit of “diaper digging,” a behavior common among dementia patients that can cause
self-injury.
After interviewing Plaintiff, Defendant Wedra spoke with Assistant Medical Director Dr.
Dawn Lajoie, who informed Wedra that Starnes had not suffered injuries consistent with a sexual
assault. On May 20, another Lawyers Glen CNA informed MHPD investigators that other staff
were aware of and concerned by Starnes “digging” habit. The next day, Starnes’ primary care
provider, Dr. James Benson, confirmed that habit to MHPD Defendant Wedra. Additional

Lawyers Glen personnel, as well as nursing records, confirmed that Starnes was a “digger” and
that staff sometimes had to clean feces from her hands and person.
Defendants’ investigation further revealed that (1) Plaintiff gave Starnes a shower at 2:50
p.m. the day she was admitted to Novant; (2) a medication technician administered medication to
Starnes at 4:20 p.m. and 7:50 p.m. that same day and observed that Starnes appeared
unremarkable; and (3) Plaintiff put on gloves before bathing Starnes to reduce the risk of injuring
her with a fingernail.
On May 26, Trevinia Graham, a Lawyers Glen housekeeper, made allegations against
Plaintiff to investigators. Specifically, Graham recounted that on the day of the incident (1) she
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spoke with Starnes at the doorway to her room; (2) at that time, Starnes had feces on her hands;
(3) Graham subsequently retrieved Plaintiff from another resident’s room; and (4) Graham then
observed Plaintiff place Starnes in a shower. Graham was certain that this episode occurred at
7:00 p.m. on May 14, 2015. Graham also made allegations against another CNA, Santiago.
Lawyers Glen surveillance video disproved Graham’s account. To the contrary, the

footage showed that (1) Graham was not present on Starnes’ wing after 6:00pm; (2) Starnes was
put to bed around 6:00 p.m.; and (3) Graham did not interact with either Plaintiff or Starnes near
Starnes’ room at 7:00 p.m..1
Following Graham’s allegations, investigators (including Defendant White) decided to
summon Plaintiff and Santiago for further interrogation and polygraph examination. Defendant
Nosalek, a licensed SBI polygraph examiner, was charged with administering the polygraph.
Defendants White and Nosalek were familiar with MHPD Defendants Wedra and Moberg, who
(along with Defendant White) decided to bring Plaintiff in for a polygraph.
Plaintiff contends that Defendants White, Wedra, and Moberg “enlisted” Defendant

Nosalek to ensure that the polygraph results would exonerate Santiago and incriminate Plaintiff.
Pursuant to that “agreement,” Defendant Nosalek chose to polygraph both suspects herself,
though standard forensic practice would require separate examiners. On May 28, Nosalek
polygraphed Santiago under Defendant Wedra’s observation. After clearing Santiago, Nosalek
unsuccessfully attempted to elicit incriminating statements regarding Plaintiff. Instead, Santiago
further confirmed Starnes’ “digging” habit, and told investigators that Starnes had long nails and

1 Plaintiff avers that Defendant Wedra subsequently convinced Graham to change her story.
Plaintiff further avers that Defendants ignored concerns regarding Graham’s credibility and
potential motive to lodge false allegations against Lawyers Glen, and evidence contradicting
Graham’s account offered by Lawyers Glen Senior Director of Operations & Clinical Services
Sandra Korzeniewski.
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fragile skin that would bleed when she scratched herself.
The next day, Defendants summoned Plaintiff for a polygraph exam and additional
questioning. Plaintiff contends that this meeting was part of a scheme, agreed upon by
Defendants, to coerce an incriminating statement or admission from Plaintiff. Defendants Wedra,
Moberg, and White observed Nosalek’s three-and-a-half-hour polygraph exam.

Minutes after the exam concluded, Nosalek purported to score the exam and told Plaintiff
that he failed. Defendant Nosalek failed to preserve the digital charts and data from her
polygraph exam. Plaintiff contends that Nosalek did not polygraph him at all, but instead
subjected him to “an improper custodial interrogation disguised as a polygraph and fabricated
evidence to wrongfully charge [Plaintiff] with a crime.” (Doc. No. 1 ¶ 152). Defendant Nosalek,
using her fabricated polygraph evidence, then attempted to elicit incriminating statements from
Plaintiff. Specifically, Plaintiff alleges that Defendant Nosalek told Plaintiff:
• “You are either a sexual predator or you made a mistake”;
• “In the course of cleaning her up, you caused these injuries”;

• “I do believe you caused the injuries”;
• “The only way you can fail a polygraph is if you know what you did”;
• “You cannot tell me positively that you did not do it”;
• “My expert opinion is that you cannot fail a polygraph because you are not sure.”
(Id. ¶ 153).
After Defendant Nosalek concluded her interrogation, Defendant Wedra picked up where
Defendant Nosalek left off. Like Defendant Nosalek, Defendant Wedra attempted to use the
polygraph results to elicit Plaintiff’s inculpating acknowledgement that he could have inserted a

finger or washcloth into Starnes’ vagina while helping her shower. Plaintiff contends that
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Defendant Wedra adopted this strategy “[i]n accordance with Defendants’ plan” to incriminate
Plaintiff, (Id. at 34 n.8), and supports this contention with excerpts from Defendant Wedra’s
questioning including the following:
I believe based on the polygraph and the Special Agent’s [i.e., Nosalek’s]
expertise in it … I believe you knew your fingers went up in there when you took
the test … I believe you knew that. At what point did you realize … you know
when I went up in there, I went up a little bit too rough?

(Id. at 34). Plaintiff eventually acknowledged he could have inadvertently injured Starnes:
If I did cause the injuries, I did not mean to. Because I was pretty much just doing
my job. I was giving her a shower. I just know that I went in [the shower] and did
my job. I didn’t mean the lady any harm if I did so called [sic] harm her. But I
don’t think I harmed her. I just gave her a shower.

(Id. ¶ 156).
Defendants Wedra, Moberg, and (as relevant here) White conferred, and deemed
Plaintiff’s statement an “oral admission” of guilt. Specifically, in a June 2, 2015, email
Defendant White noted that “[o]n Friday, May 29, 2015, Shaw acknowledged assaulting Starnes
following a polygraph test.” (Id. at 35 n.1). Defendant Wedra likewise wrote that “[Plaintiff]
made an oral admission that he either placed a washcloth or a finger into the vagina of Doris
Starnes while giving her a shower on 05/14/2015.” (Id. ¶ 158). Defendants then decided to arrest
Plaintiff and initiate criminal proceedings.
Defendant Wedra arrested Plaintiff on May 29, 2015. Plaintiff maintains that his arrest
was unsupported by probable cause. Based on Defendant Wedra’s allegation that Plaintiff “did
forcibly penetrate the vagina of Doris Starnes, an elderly patient in his care, with his fingers and
a rag,” Magistrate Judge M.L. Robinson charged Plaintiff with felony first-degree sexual offense.
Unable to post bond, Plaintiff was detained for thirteen months pending trial in the Mecklenburg
County Detention Center. On June 2, 2015, the Charlotte-Mecklenburg Police Department
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(“CMPD”) crime laboratory notified Defendant Wedra that no semen was detected in Starnes’
sexual assault evidence kit or her bedsheets.
On June 15, 2015, a grand jury indicted Plaintiff for first-degree sexual offense in
violation of N.C. GEN. STAT. § 14-27(a). The indictment alleged that Plaintiff “did unlawfully,
willfully, and feloniously with force and arms engage in a sexual act with Doris Starnes by force

and against that victim’s will, inflicting serious injury.” Detective Keith A. Mickovic was the
only witness who appeared before the grand jury. Plaintiff argues that Det. Mickovic presented
to the Grand Jury false and misleading information compiled for him by Defendants Wedra,
Moberg, White, and Nosalek.
On February 1, 2016, a grand jury indicted Plaintiff for felony patient abuse in violation
of N.C. GEN. STAT. § 14-32.2(b)(1). The indictment alleged that Plaintiff “did unlawfully,
willfully, and feloniously physically abuse Doris Starnes, a resident at a residential care facility
and the abuse was intentional and proximately caused the death of Doris Starnes.” Defendant
Wedra was the only witness who appeared before the grand jury. Plaintiff contends that

Defendant Wedra’s grand jury testimony included false and misleading information and failed to
disclose material exculpatory facts.
On June 2, 2016, the Assistant District Attorney offered Plaintiff a deal: plead guilty to
felony patient abuse and neglect or the state would indict for first-degree (felony) murder.
Lacking confidence in his public defender, Plaintiff entered an Alford plea to felony patient
abuse on June 30, 2016, and received a sentence of 104 to 137 months in prison. In exchange for
Plaintiff’s guilty plea, the state dismissed the first-degree sexual offense charge.
B. Procedural Background
On July 24, 2019, Plaintiff filed a motion, through attorneys at the Duke Wrongful
7
Convictions Clinic, asserting that his Alford plea was invalid because it lacked a sufficient
factual basis. The Court held an evidentiary hearing on Plaintiff’s motion, and after three days of
testimony the state requested a continuance so that prosecutors could review and reconsider
evidence of Plaintiff’s innocence. On January 19, 2021, Plaintiff filed a joint motion with the
state for appropriate relief by agreement. The Honorable Carla N. Archie, Superior Court Judge,

vacated Plaintiff’s conviction and ordered his immediate release from prison.
In October 2023, Plaintiff sued the Town of Mint Hill and Defendants Wedra, Moberg,
White, and Nosalek in this Court, alleging violations of his Fourth and Fourteenth Amendment
rights and several tort claims. Whereas Defendants Mint Hill, Wedra, and Moberg answered
Plaintiff’s complaint in December of 2023, Defendants White and Nosalek (the SBI Defendants)
filed a motion to dismiss in February 2024. Plaintiff responded in opposition, and SBI
Defendants declined to reply.
II. STANDARD OF REVIEW
Defendants move to dismiss under FED. R. CIV. P. 12(b)(1), (2), and (6). Assessing these

Defendant’s motion, the Court “must draw all reasonable inferences arising from the [plaintiff's]
proof, and resolve all factual disputes, in the plaintiff's favor.” Mylan Labs., Inc. v. Akzo, N.V.,
2 F.3d 56, 59–60 (4th Cir. 1993). Plaintiff aptly notes that “[a]lthough the SBI Defendants’
Motion also cites Rules 12(b)(1) and 12(b)(2), Defendants did not make any arguments
challenging subject matter jurisdiction or personal jurisdiction.” (Doc. No. 19 at 10 n.4).
A Rule 12(b)(1) motion requires the party asserting federal subject matter jurisdiction to
prove such jurisdiction is proper. In other words, a Rule 12(b)(1) motion questions whether the
plaintiff “has a right to be in the district at all and whether the court has the power to hear and
dispose of [plaintiff’s] claim.” Holloway v. Pagan River Dockside Seafood, Inc., 669 F.3d 448,
8
452 (4th Cir. 2012). Ruling on a motion to dismiss for lack of standing, the Court “must construe
the complaint in the plaintiff's favor, accepting as true the factual allegations in the complaint.”
Students for Fair Admissions, Inc. v. Univ. of N.C., 1:14CV954, 2018 WL 4688388, at *2
(M.D.N.C. Sept. 29, 2018). A district court should only grant a Rule 12(b)(1) motion to dismiss
“if the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as

a matter of law.” Richmond, Fredericksburg, & Potomac R. Co. v. United States, 945 F.2d 765,
768 (4th Cir. 1991). To determine whether subject matter jurisdiction is proper, the Court may
consider evidence beyond the pleadings. Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir.
1999).
A Rule 12(b)(2) motion requires the plaintiff to show that the Court may properly
exercise personal jurisdiction over the defendant(s). In response to a Rule 12(b)(1) motion, the
plaintiff bears the burden to allege specific facts showing that personal jurisdiction is proper.
Dean v. Motel 6 Operating L.P., 134 F.3d 1269, 1272 (6th Cir. 1988); Weller v. Cromwell Oil
Co., 504 F.2d 927, 930 (6th Cir. 1974).

A Rule 12(b)(6) motion tests whether the plaintiff “has stated a cognizable claim” and
thereby challenges the “sufficiency of the complaint.” Holloway v. Pagan River Dockside
Seafood, Inc., 669 F.3d 448, 452 (4th Cir. 2012). In reviewing a motion to dismiss pursuant to
FED. R. CIV. P. 12(b)(6), the Court must accept as true all of the 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, “[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
9
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
A. Fabrication of Evidence
The Fourteenth Amendment’s due process clause confers upon citizens a “right not to be
deprived of liberty as a result of the fabrication of evidence by a government officer acting in an
investigative capacity.” Washington v. Wilmore, 407 F.3d 274, 282 (4th Cir. 2005). A plaintiff
claiming violation of that right must prove that (1) defendant officers fabricated evidence and (2)
such fabrication resulted in deprivation of the plaintiff’s liberty. Id.; see Gilliam v. Sealey, 932
F.3d 216, 241 (4th Cir. 2019). Here, Plaintiff contends that Defendant Nosalek fabricated

Plaintiff’s polygraph results, and Defendant White approved Defendant Wedra’s decision to
fabricate evidence by filing a false investigation report. Defendants respond that Plaintiff’s
allegations are insufficient under Rule 12(b)(6).
To prevail on his evidence fabrication claim against Defendant Nosalek, Plaintiff must
show that Nosalek “deliberately or with a reckless disregard for the truth made material false
statements … or omitted … material facts with the intent to make, or with reckless disregard to
make it misleading.” Miller v. Prince George George’s Cnty., Md., 475 F.3d 621, 627 (4th Cir.
2007). Defendant Nosalek argues that Plaintiff fails to plead facts supporting the inference that
Defendant Nosalek’s evidenced “the requisite intent to mislead.” United States v. Colkly, 899
10
F.2d 297, 299–301 (4th Cir. 1990).
True, a complaint’s “bare assertion that [certain] statements were made with the requisite
intent” is insufficient to survive a motion to dismiss. Painter’s Mill Grille, LLC v. Brown, 715
F.3d 342, 354 (4th Cir. 2013); Mayfield v. Nat’l Ass’n for Stock Car Auto Racing, Inc., 674 F.3d
369, 378 (4th Cir. 2012). But that description hardly befits Plaintiff’s complaint here. While

Plaintiff admits that “[d]iscovery is needed to determine whether Defendant Nosalek
intentionally or recklessly fabricated the polygraph evidence,” (Doc. No. 19 at 19–20), Plaintiff
plausibly alleges that Nosalek “willingly participated in a scheme to use sham polygraphs of
Santiago and [Plaintiff] to exonerate the former and elicit some statement that could be
characterized as inculpatory” against the latter, all in violation of standard forensic practices.
(Doc. No. 19 at 20) (citing Doc. No. 1 ¶¶ 131, 132, 143, 146, 148–52). That is more than enough
to establish, at the deferential motion to dismiss standard, Defendant Nosalek’s intent to mislead.
Plaintiff raises another evidence fabrication claim against Defendant White under a
theory of bystander liability, alleging that White tacitly approved Defendant Wedra’s decision to

falsely report Plaintiffs “oral admission” arising from the May 29, 2015, interrogation. (Doc. No.
1 ¶ 230). In the Fourth Circuit, bystander liability attaches where an officer “(1) knows that a
fellow officer is violating an individual’s constitutional rights; (2) has a reasonable opportunity
to prevent the harm; and (3) chooses not to act.” Randall v. Prince George’s Cnty., 302 F.3d 188,
204 (4th Cir. 2002). Here, Plaintiff contends that Defendant White (1) watched Defendant Wedra
interrogate Plaintiff; (2) knew that Plaintiff had not made an admission of guilt during that
interrogation; (3) was therefore aware that Defendant Wedra’s false report would violate
Plaintiff’s constitutional rights; but (4) chose not to act to prevent Wedra’s unlawful conduct.
(Doc. No. 1 ¶¶ 145, 158, 230). SBI Defendants dispute that Defendant White approved of
11
Wedra’s false report. But even if the Court could discredit Plaintiff’s well-plead factual
allegations (which it cannot at the motion to dismiss stage), Defendant White’s purported lack of
approval is immaterial—the Fourth Circuit bystander liability test does not consider whether an
officer aware of a constitutional violation “approved” the violation, but whether, given that
awareness, they “[chose] not to act.” Randall, 302 F.3d at 204.

The Court will thus deny SBI Defendants’ motion to dismiss Plaintiff’s fabrication of
evidence claims.
B. Initiation of Criminal Proceedings without Probable Cause
“The Fourth Amendment prohibits law enforcement officers from making unreasonable
seizures, and seizure of an individual effected without probable cause is unreasonable.” Brooks
v. City of Winston–Salem, 85 F.3d 178, 183 (4th Cir. 1996). To state an unreasonable seizure
claim for lack of probable cause, Plaintiff must show that SBI Defendants (1) caused (2)
Plaintiff’s seizure pursuant to legal process but unsupported by probable cause, and (3) that the
resulting criminal proceedings terminated in Plaintiff’s favor. See Evans, 166 F.3d at 647 (citing

Durham v. Horner, 690 F.3d 183, 188 (4th Cir. 2012)). SBI Defendants attack the second prong
of Plaintiff’s unreasonable seizure claim, contending they had probable cause to initiate criminal
proceedings and therefore did not abrogate Plaintiff’s Fourth Amendment freedoms. (Doc. No.
16 at 9). Thus, Defendants contend, Plaintiff’s Fourth Amendment claim should be dismissed.
Probable cause is not a technical concept or term of art, but instead “deals with the
factual and practical considerations of everyday life on which reasonable and prudent men, not
legal technicians, act.” Ornelas v. United States, 517 U.S. 690, 695 (1996). The existence of
probable cause “is determined from the totality of the circumstances known to the officer.”
Brown v. Gilmore, 278 F.3d 362, 367 (4th Cir. 2002). Probable cause does not require that the
12
officer’s belief be more likely true than false. United States v. Humphries, 372 F.3d 653, 660
(4th Cir. 2004). Whether probable cause exists given a particular set of facts is an objective
question of law for the court. Devenpeck v. Alford, 543 U.S. 146, 153 (2004); Park v. Shiflett,
250 F.3d 843, 849–50 (4th Cir. 2001).
Defendants’ motion to dismiss Plaintiff’s Fourth Amendment claim relies heavily on the

Fourth Circuit’s conclusion in Durham that “an indictment, fair upon its face, returned by a
properly constituted grand jury, conclusively determines the existence of probable cause.” 690
F.3d at 188. But the question is not as simple as Defendants’ selective quotation suggests. In fact,
the Durham Court recognized on the very next page of its decision that a grand jury indictment
does not “shield a police officer who deliberately supplied misleading information” that
influenced the grand jury’s decision. Id. at 189; see also Gilliam, 932 F.3d at 240–41; Massey v.
Ojaniit, 759 F.3d 343, 357 (4th Cir. 2014); Miller, 475 F.3d at 632. Put simply, where probable
cause was supported by false statements attributable to law enforcement officers, a Fourth
Amendment claim will lie. Manuel v. City of Joliet, Ill., 580 U.S. 357, 359–60, 367–69 (2017).

Here, Plaintiff alleges that Defendants not only fabricated the evidence of probable cause
justifying Plaintiff’s arrest and indictment, but also concealed material exculpatory evidence that
would have (perhaps fatally) undermined Defendants’ finding of probable cause determination.
Withholding exculpatory information from a prosecutor—as the SBI Defendants arguably did
here—exposes officers to liability for Section 1983 and common law claims. Goodwin v. Metts,
885 F.2d 157, 162 (4th Cir. 1989). Further, Plaintiff contends that Defendants’ probable cause
determination improperly relied on Graham’s untrustworthy allegations, which were clearly
unreliable given the totality of circumstances under which they emerged. See (Doc. No. 19 at 13)
(citing Clipper v. Takoma Park, 876 F.2d 17, 19 (4th Cir. 1989)). Under the deferential motion to
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dismiss standard, Plaintiff has done enough to show that that grand jury indictments in this case
should not be taken as conclusive evidence of probable cause. Moreover, Plaintiff’s complaint
alleges sufficient facts that, if true, could lead a reasonable factfinder to conclude that the SBI
Defendants violated Plaintiff’s Fourth Amendment freedom from unreasonable seizure by
instituting criminal proceedings without probable cause.2

C. Bad Faith Failure to Investigate (Defendant White Only)
SBI Defendants apparently misinterpret Plaintiff’s failure to investigate claim against
Defendant White as a supervisory liability claim, which Defendants contend must be dismissed
because Defendant White was not Defendant Wedra’s supervisor when Wedra allegedly
submitted her false report. (Doc. No. 17 at 21). In fact, Plaintiff raises a bad faith failure to
investigate claim against Defendants White, Moberg, and Wedra individually at ¶¶ 254–63 of the
Complaint. A Fourteenth Amendment due process claim for bad faith failure to investigate will
lie “if an officer takes bad faith actions to shield his wrongful acts, including fabricating
testimony and failing to disclose exculpatory evidence.” Howard v. City of Durham, 487 F.

Supp. 3d 377, 426 (M.D.N.C. 2020) (citing Gilliam, 932 F.3d at 240–41); see also Livers v.
Schenck, 700 F.3d 340, 351 (8th Cir. 2012). Here, Plaintiff plausibly alleges that Defendants
White, Moberg, and Wedra refused to adequately investigate the reliability of Trevinia Graham’s
account and declined to disclose exculpatory evidence, all in service of their bad faith effort to
shield wrongful acts related to Plaintiff’s fabricated confession. See Gilliam, 932 F.3d at 241.
Defendant White’s motion to dismiss Plaintiff’s failure to investigate claim must be denied.

2 Specifically, Plaintiff alleges that Defendants agreed to (1) charge Plaintiff using a fabricated
“confession” obtained by SBI Defendant Nosalek’s feigned polygraph; (2) present false and
misleading to the grand jury; (3) refuse to disclose potentially exculpatory information; and (4)
rely on Trevinia Graham’s objectively unreliable allegations. See (Doc. No. 19 at 15–17).
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D. Civil Conspiracy to Violate Plaintiff’s Fourteenth Amendment Rights
Section 1983 provides a private right of action against state officials who conspired to
violate a plaintiff’s constitutional rights. Hinkle v. City of Clarksburg, W.Va., 81 F.3d 416, 421
(4th Cir. 1996). To state a civil conspiracy claim under Section 1983, Plaintiff must show that
Defendants “acted jointly in concert and that some overt act was done in furtherance of the

conspiracy” depriving Plaintiff of a constitutional right. Id. (citing Hafner v. Brown, 983 F.2d
570, 577 (4th Cir. 1992)); see North Carolina ex rel. Cooper v. Ridgeway Brands Mfg., 362 N.C.
431, 441 (2008). Defendants contend that Plaintiff’s conspiracy allegations “amount to nothing
more than mere speculation and conjecture.” (Doc. No. 17 at 18). Taking the facts and inferences
in the light most favorable to Plaintiff’s conspiracy claim, the Court cannot agree.
Plaintiff need not show that Defendants entered an explicit, overt agreement to violate his
constitutional rights. Hafner, 983 F.2d at 577–78. Indeed, mere acquiescence “can amount to a
conspiracy agreement” where a law enforcement officer “watches an open breach of the law and
does nothing to seek its prevention.” Id. at 578. Plaintiff may rely on circumstantial evidence to

show the existence of a conspiracy agreement. See Henderson v. LeBauer, 399 S.E.2d 142, 145
(N.C. Ct. App. 1991); Taylor v. Deaver, No. 5:11-cv-341, 2012 WL 12905868, at *5 (E.D.N.C.
Sept. 28, 2012). Here, Plaintiff plausibly alleges that the SBI Defendants agreed and conspired
“to use fabricated evidence to prosecute Plaintiff without probable cause.” (Doc. No. 19 at 17)
(quoting Doc. No. 1 ¶¶ 250, 271). More specifically, Plaintiff contends that Defendants Wedra,
Moberg, White, and Nosalek agreed that Nosalek would manipulate the results of her polygraph
examination to exonerate Santiago, incriminate Plaintiff, and subsequently institute criminal
charges. (Doc. No. 19 at 23) (citing Doc. No. 1 ¶¶ 128–29, 131, 138, 141–43).
Considering Plaintiff’s allegations under the highly deferential motion to dismiss
15
standard, Plaintiff has plausibly alleged the existence of a conspiracy agreement, to which SBI
Defendants at the very least acquiesced, to violate Plaintiff’s constitutional rights. SBI
Defendants’ motion to dismiss Plaintiff’s civil conspiracy claim must therefore be denied.
E. Malicious Prosecution
The Fourth Amendment’s protection from unreasonable seizures, as incorporated against

the states by the Fourteenth Amendment, does not create a private right of action to redress
malicious prosecution. In the Fourth Circuit, however, a malicious prosecution claim can be
brought under 42 U.S.C. § 1983 so long as that claim (1) “meets the common law standards for
malicious prosecution” and (2) “alleges violations of a plaintiff’s Fourth Amendment
constitutional rights.” Brooks, 85 F.3d at 184. Thus, “[w]hat is conventionally referred to as a
‘1983 malicious prosecution’ action is nothing more than a 1983 claim arising from a Fourth
Amendment violation.” Lambert v. Williams, 223 F.3d 257, 260 (4th Cir. 2000). To state a North
Carolina malicious prosecution claim, Plaintiff must show that the SBI Defendants “(1)
instituted, procured or participated in the criminal proceeding against [Plaintiff]; (2) without

probable cause; (3) with malice; and (4) the prior proceeding terminated in favor of [Plaintiff].”
Lopp v. Anderson, 795 S.E.2d 770, 779 (N.C. 2016) (citing Moore v. Evans, 476 S.E.2d 415
(N.C. App. 1996)). These are the same elements Plaintiff must establish for his Fourth
Amendment (probable cause) claim, with the addition that Plaintiff must also prove that
Defendants acted “with malice.” But under North Carolina law, “malice can be inferred from the
want of probable cause alone.” Id. Because the Court has already found plausible Plaintiff’s
allegations that Defendants instituted criminal proceedings against Plaintiff without probable
cause, and because those proceedings terminated in Plaintiff’s favor, the Court must deny
Defendants’ motion to dismiss Plaintiff’s malicious prosecution claim.
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F. Gross Negligence
Plaintiff purports to bring a gross negligence claim against SBI Defendants in this Court
while simultaneously pursuing a damages claim before the North Carolina Industrial
Commission. (Doc. No. 1 ¶ 75). Under the Tort Claims Act, the Industrial Commission is the
exclusive jurisdiction for negligence claims against North Carolina officials acting in their

official capacity. N.C. GEN. STAT. § 143-291; Estate of Long v. Fowler, 841 S.E.2d 290, 295–96
(N.C. Ct. App. 2020). North Carolina retains sovereign immunity against official capacity claims
brought before all courts besides the Industrial Commission. Id. Thus, Plaintiff cannot bring an
official capacity negligence claim against SBI Defendants before this Court.
Plaintiff may, however, bring before this Court a negligence claim against SBI
Defendants in their individual capacities. While North Carolina law endows public officers with
absolute immunity for their discretionary acts, that immunity does not withstand “a showing of
malice or corruption.” Young v. Woodall, 458 S.E.2d 225, 228 (N.C. Ct. App. 1995), rev’d on
other grounds, 471 S.E.2d 357 (1996). Put another way, to prevail on an individual capacity

negligence claim, Plaintiff must show that Defendants’ conduct was “corrupt or malicious,” or
that Defendants “acted outside of and beyond the scope” of their duties. Hobbs v. N.C. Dep’t
Human Res., 520 S.E.2d 595, 602–03 (N.C. Ct. App. 1999).
Plaintiff plausibly pleads several exceptions to public official immunity, requiring the
Court to deny SBI Defendants’ motion to dismiss Plaintiff’s individual capacity negligence
claims. Even if the Court had not already blessed the allegations supporting the malice element
of Plaintiff’s malicious prosecution claim, Plaintiff further alleges that SBI Defendants acted
corruptly and beyond the scope of their authority. (Doc. No. 1 ¶¶ 66, 74). What’s more, public
official immunity is unavailable to those who violate clearly established constitutional rights,
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such that North Carolina public official immunity is essentially coterminous with federal
qualified immunity. Bailey v. Kennedy, 349 F.3d 731, 742 (4th Cir. 2003). Because the Court
finds infra that SBI Defendants are not entitled to qualified immunity at the motion to dismiss
stage, the Court concludes that their public official immunity claim must likewise fail.
Defendants submit that Plaintiff’s individual capacity negligence claims are barred by

qualified immunity. (Doc. No. 17 at 23) (citing Ridpath v. Bd. of Governors Marshall Univ., 447
F.3d 292, 306 (4th Cir. 2006)). To overcome this affirmative defense, Plaintiff must show that
(1) the allegations underlying their claim “substantiate the violation of a federal statutory or
constitutional right” and (2) that the right violated was “clearly established.” Id. (quoting Mellen
v. Bunting, 327 F.3d 355, 365 (4th Cir. 2003)); see Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982); Pearson v. Callahan, 555 U.S. 227, 233 (2009). If Plaintiff cannot satisfy this two-part
test, then Defendants are immune from suit. Cloaninger v. McDevitt, 555 F.3d 324, 330 (4th Cir.
2009). Therefore, “[u]nless the plaintiff’s allegations state a claim of violation of clearly
established law, a defendant pleading qualified immunity is entitled to dismissal before the

commencement of discovery.” Id.
But qualified immunity does not protect “the plainly incompetent or those who
knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341 (1986). And while “[a]
qualified immunity defense can be presented in a Rule 12(b)(6) motion, . . . when asserted at this
early stage in the proceedings, ‘the defense faces a formidable hurdle’ and ‘is usually not
successful.’” Owens v. Baltimore City State’s Attorneys Office, 767 F.3d 379, 396 (4th Cir.
2014) (quoting Field Day, LLC v. City of Suffolk, 463 F.3d 167, 191–92 (2nd Cir. 2006)).
What’s more, qualified immunity is an affirmative defense, so the SBI defendants bear the
burden of proof and persuasion to show that they did not violate a clearly established
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constitutional right. See Stanton v. Elliott, 25 F.4th 227, 233 (4th Cir. 2022) (citing Henry v.
Purnell, 501 F.3d 374, 377-78 (4th Cir. 2007)).
The foregoing analysis of Plaintiff's constitutional claims confirms that, under the
deferential motion to dismiss standard, Plaintiff's allegations satisfy the first step of the qualified
immunity inquiry by “substantiat[ing] the violation of a federal . . . constitutional right.” Ridpath,
447 F.3d at 306. And Plaintiff's response to Defendants’ motion to dismiss supplies a bevy of in-
circuit authority establishing that the rights in question are clearly established. See (Doc. No. 19
at 11-12) (citing Washington v. Wilmore, 407 F.3d 274, 283 (4th Cir. 2005) (fabrication of
evidence); Brooks, 85 F.3d at 183-84 (arrest and prosecution without probable cause); Miller,
475 F.3d at 631-32 (false statements in service of probable cause); Gilliam, 932 F.3d at 240-41
(failure to investigate)). Because Plaintiff plausibly alleges that SBI Defendants violated his
clearly established constitutional rights, SBI Defendants’ motion to dismiss Plaintiff's
negligence claims on public official and qualified immunity grounds must be denied.
IV. CONCLUSION
For the foregoing reasons, the Court will deny SBI Defendants’ motion to dismiss in its
entirety.
ORDER
IT IS, THEREFORE, ORDERED that Defendants John D. White and Amanda B.
Nosalek’s motion to dismiss Plaintiff’s complaint, (Doc. No. 16), is DENIED.

i )
pr-ervrnca
Max O. Cogburn i yg
United States District Judge Hag Me of
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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10261075. Public record. Not legal advice.