CLOANINGER EX REL. EST. OF CLOANINGER v. McDevitt

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

MILLIE CLOANINGER, Administratrix 

of the Estate of Ralph H.

Cloaninger,

Plaintiff-Appellant,

v.

JOHN T. MCDEVITT, In his official

capacity as Sheriff of Burke

County, North Carolina; YONGLA

LO, a/k/a Joe Lo, Individually and  No. 07-2054

in his official capacity as Deputy

Sheriff of Burke County, North

Carolina; STEVEN PARLIER,

Individually and in his official

capacity as Deputy Sheriff of

Burke County, North Carolina;

LIBERTY MUTUAL INSURANCE

COMPANY, as surety,

Defendants-Appellees.



Appeal from the United States District Court

for the Western District of North Carolina, at Asheville.

Dennis L. Howell, Magistrate Judge.

(1:06-cv-00135-DLH)

Argued: December 3, 2008

Decided: February 9, 2009

Before WILKINSON, DUNCAN, and AGEE,

Circuit Judges.

2 CLOANINGER v. MCDEVITT

Affirmed by published opinion. Judge Agee wrote the opin-

ion, in which Judge Wilkinson and Judge Duncan concurred.

COUNSEL

ARGUED: Marc S. Gentile, KLEIN & FREEMAN,

P.L.L.C., Charlotte, North Carolina, for Appellant. Sean Fran-

cis Perrin, WOMBLE, CARLYLE, SANDRIDGE & RICE,

P.L.L.C., Charlotte, North Carolina, for Appellees. ON

BRIEF: Paul I. Klein, KLEIN & FREEMAN, P.L.L.C., Char-

lotte, North Carolina, for Appellant.

OPINION

AGEE, Circuit Judge:

Ralph H. Cloaninger ("Cloaninger") brought this appeal

from a magistrate judge’s award of summary judgment in

favor of the defendants to an action in which he alleged viola-

tions of the Fourth and Fourteenth Amendments under 42

U.S.C. § 1983 and presented several state tort claims.1

Because there is no genuine dispute of fact material to the

defendants’ qualified immunity to suit under § 1983 and

because Cloaninger’s state law claims have abated, are aban-

doned, or fail as a matter of law, we affirm the judgment of

the magistrate judge.

1

Cloaninger died on February 8, 2008, after filing his opening brief and

while this appeal was pending. Following her appointment as administra-

trix of Cloaninger’s estate, his widow (the "Administratrix"), filed a

Motion to Substitute Parties seeking leave to pursue this appeal on his

behalf, which the Court granted. Cloaninger v. McDevitt, No. 07-2054

(4th Cir. May 7, 2008). We attribute all arguments to Cloaninger except

where specifically made by the Administratrix.

CLOANINGER v. MCDEVITT 3

I.

This case arises from events that began on March 9, 2005,

at Cloaninger’s home in Morganton, North Carolina. The par-

ticipants offer varying versions of those events, but the mate-

rial facts are uncontroverted. Around 10:00 that morning,

Cloaninger began trembling and feeling nauseous and flighty,

which he attributed to an adverse reaction to his prescription

medication. Cloaninger attempted to contact his doctor at the

Veterans Administration ("VA") hospital in Asheville but was

unable to reach him. Instead, Cloaninger described his symp-

toms to an unidentified female at the hospital, who said she

would call back soon. While waiting for the return call,

Cloaninger drank several ounces of bourbon. The woman cal-

led back after about twenty minutes and told Cloaninger that

she was sending help to take him to nearby Grace Hospital

until he was stabilized, and that he would then be transferred

to the VA hospital.

A police dispatcher subsequently contacted Burke County

Deputies Steven Parlier and Yongla "Joe" Lo to report that

Cloaninger had threatened suicide and to request that they

conduct a welfare check at Cloaninger’s house.2 When Parlier

arrived on the scene Cloaninger asked him, through the par-

tially open doorway, whether he was taking Cloaninger to the

VA hospital. When Parlier answered that he was only check-

2

The deposition testimony and police reports indicate that a doctor from

the VA hospital called 911 and told the dispatcher that Cloaninger had

threatened suicide. Cloaninger denies that he threatened suicide but he

does not dispute that the dispatcher received the 911 call, that the call indi-

cated that Cloaninger had made such a threat, or that the dispatcher

relayed the information to Parlier and Lo.

On appeal, Cloaninger asserts that the content of the call was inadmissi-

ble hearsay. However, there is no record of any hearsay objection in the

record. In any event, the content was offered to explain the subsequent

conduct of the officers rather than to prove the matter asserted. Accord-

ingly, the content is not hearsay. Fed. R. Evid. 801(c); see, e.g., United

States v. Jenkins, 579 F.2d 840, 842 (4th Cir. 1978).

4 CLOANINGER v. MCDEVITT

ing to see whether Cloaninger was all right, Cloaninger

demanded Parlier get off his property and closed the door.

Lo then arrived and told Parlier that Cloaninger had made

previous suicide threats and that when other officers had

responded to those threats firearms had been found in the resi-

dence. Although Cloaninger claims that he voluntarily surren-

dered all of his firearms in 2004 and denies that he possessed

firearms on the date in question, he does not contradict the

information Lo conveyed to Parlier.3

When Parlier and Lo failed to make progress communicat-

ing with Cloaninger, Parlier called their supervisor, Sergeant

Craig Treadway, for additional assistance.4 When Treadway

arrived, he attempted to communicate with Cloaninger both

through the doorway and by telephone. According to the offi-

cers, Cloaninger again demanded to be taken to the VA hospi-

tal and, when they again refused, he ordered them off his

property or else he would kill them all and then kill himself.

Cloaninger denies the threats.

After his attempts to communicate with Cloaninger failed,

Treadway contacted the VA hospital but was unable to reach

Cloaninger’s doctor or the doctor who placed the 911 call. A

nurse told Treadway that she was familiar with Cloaninger

and that he had a history of calling the hospital and threaten-

ing suicide. Treadway discussed obtaining an emergency

commitment order and the nurse agreed with Treadway’s sug-

gestion. Because Treadway felt the circumstances were too

volatile for any of the officers to leave the scene to obtain the

order, he called the Burke County magistrate and conveyed

the information from the VA hospital nurse with the officers’

3

The officers also claim Cloaninger made threatening and racial

remarks to Lo based on Cloaninger’s inaccurate assumption that Lo was

Vietnamese. Cloaninger admits accusing Lo of being North Vietnamese

but denies making threats.

4

Treadway is not a party to this action.

CLOANINGER v. MCDEVITT 5

observations on the scene. The magistrate agreed that an

emergency commitment was appropriate.5

Soon thereafter, Cloaninger opened the front door a few

inches and stuck his arm through the opening, at which point

Treadway grabbed the arm and tried to pull Cloaninger out.

Trying to escape Treadway’s grip and shut the door, Cloan-

inger pulled his own arm back inside, which had the effect of

pulling Treadway partially through the doorway. Parlier then

helped Treadway push the door open and pull Cloaninger out

of the house. The three officers wrestled Cloaninger to the

ground and cuffed his hands behind him. At some point dur-

ing this process, Cloaninger’s right arm broke and he passed

out.

Cloaninger was taken to the magistrate’s office, where Par-

lier and Treadway obtained an emergency commitment order.

They then took Cloaninger to the Grace Hospital emergency

room. The examining doctor was unable to detect the arm

fracture and, determining that Cloaninger was too intoxicated

for psychological examination,6 refused to order his involun-

tary commitment. Cloaninger was then taken to the county jail

to sober up overnight.

The next day, March 10, officers brought Cloaninger back

to Grace Hospital where an x-ray confirmed that his arm was

broken. Cloaninger was treated and released from custody.

However, Cloaninger was charged with resisting arrest and

communicating threats.7 The resisting arrest charge was sub-

sequently dismissed but Cloaninger was convicted of commu-

nicating threats.

5

As with the original 911 call, Cloaninger asserts on appeal that the con-

tents of Treadway’s call to the VA nurse and the magistrate are inadmissi-

ble hearsay. As noted above, this assertion is without merit.

6

The hospital determined that Cloaninger had a blood-alcohol content

of 0.298 at the time of his examination.

7

The communicating threats charge related to Cloaninger’s behavior

after he was taken into custody, not when he was seized at his home.

6 CLOANINGER v. MCDEVITT

Cloaninger filed a complaint under 42 U.S.C. § 1983

against Parlier and Lo both individually and in their official

capacities as Burke County deputy sheriffs, alleging they had

violated his search and seizure rights under the Fourth and

Fourteenth Amendments and his due process and equal pro-

tection rights under the Fourteenth Amendment, specifically

claiming unlawful arrest, unlawful search, use of excessive

force, and indifference to medical needs. The complaint also

presented claims under state law for false arrest, false impris-

onment, assault and battery, and malicious prosecution of the

resisting arrest charge. In addition, Cloaninger included state

claims of negligent hiring, negligent supervision, and punitive

damages against John McDevitt in his official capacity as

sheriff of Burke County, and joined Liberty Mutual Insurance

Company as surety.8 The case was referred to the United

States Magistrate Judge under 28 U.S.C. § 636(c)(1).

The defendants moved for summary judgment arguing,

inter alia, that they had qualified immunity from suit. The

magistrate judge granted the motion and dismissed the case,

holding that the search and seizure was justified by exigent

circumstances; that the force used to effect arrest was not

unreasonable; that overnight detention after medical personnel

failed to detect the arm fracture did not offend due process;

that the officers had probable cause for arrest justifying the

seizure, detention, and prosecution; that the reasonableness of

the force used during the arrest precluded the assault and bat-

tery claim; that no evidence substantiated a claim of negligent

hiring or supervision; and that punitive damages are not a

cause of action. In addition, the magistrate judge found the

defendants "entitled to the fullest protections of qualified

immunity." (J.A. 321.) Cloaninger timely appeals the judg-

8

The Administratrix declares in the Motion to Substitute Parties that, as

a matter of state law, Cloaninger’s death abates the federal claim of

unlawful seizure and the state claims of false arrest and false imprison-

ment. In addition, Cloaninger expressly abandons in his opening brief the

negligent hiring claim.

CLOANINGER v. MCDEVITT 7

ment of the magistrate judge under 28 U.S.C. § 636(c)(3) and

we have jurisdiction under 28 U.S.C. § 1291.

II.

The magistrate judge awarded summary judgment under

Rule 56 by finding that the undisputed facts precluded Cloan-

inger’s recovery under any of the causes of action he pled.

Alternatively, the magistrate judge concluded that the defen-

dants were entitled to qualified immunity against all federal

claims. Cloaninger argues on appeal that the magistrate judge

incorrectly applied Rule 56 by awarding summary judgment

in the face of genuinely disputed material facts. Contending

the magistrate judge erroneously relied on the defendants’

version of the facts, Cloaninger also challenges the magistrate

judge’s finding of qualified immunity. We review an award

of summary judgment de novo. Hawkspere Shipping Co. v.

Intamex, S.A., 330 F.3d 225, 232 (4th Cir. 2003).

A. Federal Claims Under § 1983

Qualified immunity, when found to apply, bars § 1983 suits

against government officers in their individual capacity. Bran-

don v. Holt, 469 U.S. 464, 472-73 & 473 n.24 (1985); Owen

v. City of Independence, 445 U.S. 622, 638 & n.18 (1980).

Qualified immunity provides "an immunity from suit rather

than a mere defense to liability; and like an absolute immu-

nity, it is effectively lost if a case is erroneously permitted to

go to trial." Mitchell v. Forsyth, 472 U.S. 511, 526 (1985);

accord Pearson v. Callahan, No. 07-751, slip op. at 6 (Jan.

21, 2009). Because the doctrine seeks to protect government

officials from the burdens of trial and preparing for trial, the

Supreme Court has "repeatedly . . . stressed the importance of

resolving immunity questions at the earliest possible stage in

litigation." Hunter v. Bryant, 502 U.S. 224, 227 (1991) (per

curiam). "Unless the plaintiff’s allegations state a claim of

violation of clearly established law, a defendant pleading

8 CLOANINGER v. MCDEVITT

qualified immunity is entitled to dismissal before the com-

mencement of discovery." Mitchell, 472 U.S. at 526.

Relying on the Supreme Court’s instruction in Saucier v.

Katz, 533 U.S. 194 (2001), we have recognized that the reso-

lution of a qualified immunity defense is a two-pronged

inquiry:

First, we must decide whether a constitutional right

would have been violated on the facts alleged. Next,

assuming that the violation of the right is estab-

lished, courts must consider whether the right was

clearly established at the time such that it would be

clear to an objectively reasonable officer that his

conduct violated that right.

Bailey v. Kennedy, 349 F.3d 731, 739 (4th Cir. 2003) (internal

quotation marks and citations omitted).9 However, that a con-

stitutional right is "clearly established" means more than that

it is well-known or easily articulated.

Rather, . . . the right the official is alleged to have

violated must have been clearly established in a

more particularized, and hence more relevant, sense:

The contours of the right must be sufficiently clear

that a reasonable official would understand that what

he is doing violates that right. The relevant, disposi-

tive inquiry in determining whether a right is clearly

established is whether it would be clear to a reason-

able officer that his conduct was unlawful in the situ-

ation he confronted.

9

We note that the Supreme Court has now clarified that these two steps

need not be taken in the sequence set forth in Saucier, and that "[t]he

judges of the district courts and the courts of appeals should be permitted

to exercise their sound discretion in deciding which of the two prongs . . .

should be addressed first in light of the circumstances in the particular

case at hand." Pearson, slip op. at 10.

CLOANINGER v. MCDEVITT 9

[T]o deny summary judgment any time a material

issue of fact remains . . . could undermine the goal

of qualified immunity to avoid excessive disruption

of government and permit the resolution of many

insubstantial claims on summary judgment. If the

law did not put the officer on notice that his conduct

would be clearly unlawful, summary judgment based

on qualified immunity is appropriate.

Saucier, 533 U.S. at 202 (internal quotation marks and cita-

tions omitted).

Ordinarily, no factual findings are necessary to the analysis

of a qualified immunity claim because the "issue is a purely

legal one: whether the facts alleged (by the plaintiff, or, in

some cases, the defendant) support a claim of violation of

clearly established law." Mitchell, 472 U.S. at 528 n.9; accord

Elder v. Holloway, 510 U.S. 510, 516 (1994). However, the

defendants may still contest on a motion for summary judg-

ment the adequacy of the plaintiff’s evidence to support the

allegations in his complaint. "Even if the plaintiff’s complaint

adequately alleges the commission of acts that violated clearly

established law, the defendant is entitled to summary judg-

ment if discovery fails to uncover evidence sufficient to create

a genuine issue as to whether the defendant in fact committed

those acts." Mitchell, 472 U.S. at 526.

The procedural framework for evaluating a claim of quali-

fied immunity is therefore clear: when the defendant in a

§ 1983 action raises a qualified immunity defense, the court

ordinarily assesses whether the plaintiff’s complaint states

sufficient factual allegations that, if true, show a violation of

clearly established constitutional rights. To do so, the plain-

tiff’s complaint must allege conduct a reasonable officer

would know to be unlawful. However, when there has been

discovery and the defendants challenge through a motion for

summary judgment the sufficiency of the plaintiff’s evidence

to support the allegations of his complaint, including his

10 CLOANINGER v. MCDEVITT

description of their conduct, an evaluation of the complaint’s

sufficiency is unnecessary and may unduly prolong the defen-

dants’ entanglement in litigation if the court can determine

that the plaintiff’s evidence does not support his allegations.

In that circumstance, the familiar standard for summary judg-

ment under Rule 56 applies.

Summary judgment "should be rendered if the pleadings,

the discovery and disclosure materials on file, and any affida-

vits 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). Where a case is "decided on sum-

mary judgment, there have not yet been factual findings by a

judge or jury, and [the appellant’s] version of events . . . dif-

fers substantially from [the appellee’s,] . . . courts are required

to view the facts and draw reasonable inferences in the light

most favorable to the party opposing the . . . motion." Scott

v. Harris, 127 S. Ct. 1769, 1774 (2007) (internal quotation

marks and alterations omitted).

However, "[a]t the summary judgment stage, facts must be

viewed in the light most favorable to the nonmoving party

only if there is a ‘genuine’ dispute as to those facts." Id. at

1176 (quoting Fed. R. Civ. P. 56(c)). Moreover, "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 genu-

ine issue of material fact. . . . Factual disputes that are irrele-

vant or unnecessary will not be counted." Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in origi-

nal).

In the case before us, the defendants presented both the

legal claim of qualified immunity and an evidentiary chal-

lenge to Cloaninger’s allegations in the same motion for sum-

mary judgment.10 Despite Cloaninger’s contention to the

10

The burden of pleading qualified immunity lies on the defendants. Sie-

gert v. Gilley, 500 U.S. 226, 231 (1991). The defendants first presented

CLOANINGER v. MCDEVITT 11

contrary, there is no genuine dispute concerning the material

facts—the officers’ conduct—because we are able to establish

the relevant conduct from the uncontroverted facts.

Cloaninger had taken prescription medication, an adverse

reaction to that medication made him feel "flighty," and

Cloaninger compounded the effects of the medication by

drinking alcohol. He called the VA hospital and, regardless of

what he may have communicated in that call, it led a VA doc-

tor to call 911 and request police assistance for a suicide

threat. In response, Parlier and Lo were dispatched to Cloan-

inger’s residence under the belief that Cloaninger had threat-

ened suicide. Based on information from fellow officers, Lo

knew Cloaninger had previously made suicide threats and

believed Cloaninger had firearms in the house.

Whether Cloaninger was in fact abusive and threatened the

officers, as they allege and he denies, is not material. Even if

he was not belligerent, he admits that he was not responsive

to their concerns for his well-being. Prompted by Parlier and

Lo’s request for assistance, Treadway joined them and

attempted to communicate with Cloaninger, both through the

doorway and by telephone. When those attempts failed,

Treadway contacted the VA hospital and a nurse informed

him that she knew Cloaninger and confirmed that he had a

history of threatening suicide. Treadway and the nurse dis-

cussed emergency commitment and the nurse agreed that such

a measure would be appropriate. Treadway then contacted the

Burke County magistrate, who agreed to enter an emergency

qualified immunity in their answer and again in their motion for summary

judgment, but did not invoke the doctrine in either of their earlier motions

to dismiss under Rule 12(b)(6). Though the delay did not waive their

claim to immunity, see id. (allowing invocation of qualified immunity on

summary judgment); Gomez v. Toledo, 446 U.S. 635, 641 & 641 n.8

(1980) (suggesting qualified immunity is best raised in the defendant’s

answer), it did postpone the magistrate judge’s evaluation of the issue until

after discovery.

12 CLOANINGER v. MCDEVITT

commitment order. The officers physically seized Cloaninger

only after collecting all this information and professional

advice.

They then obtained the emergency commitment order from

the magistrate and transported Cloaninger to Grace Hospital

for medical evaluation. The physician who examined Cloan-

inger did not detect the broken arm. When he learned from the

hospital’s tests that Cloaninger’s blood-alcohol content was

0.289, the physician decided Cloaninger was too drunk to

complete a psychological evaluation and the officers then

took Cloaninger to jail until he sobered up. The following

day, they took him back to the hospital, where the extent of

his injury was determined and where he received the neces-

sary treatment.

The officers’ conduct is thus established beyond genuine

dispute. The only remaining question is whether that conduct

was objectively reasonable, which is a question of law, not

fact. See Willingham v. Crooke, 412 F.3d 553, 559-60 (4th

Cir. 2005).

Relying on Bailey, Cloaninger argues that the defendants’

conduct was not reasonable because they lacked probable

cause to seize him. In Bailey, we determined that a neighbor’s

911 call reporting that the plaintiff threatened to kill himself

was insufficient, "without more," to establish probable cause

for police to seize him for a psychological evaluation. 349

F.3d at 740. Cloaninger contends that the VA doctor’s call

reporting the suicide threat is therefore insufficient to create

probable cause for the defendants’ actions.

The defendants counter that the facts of this case are more

analogous to Gooden v. Howard County, 954 F.2d 960 (4th

Cir. 1992). There, officers responded to two 911 calls, about

one week apart, from a resident in an apartment complex

reporting screams in the apartment overhead. On the second

instance the responding officers themselves heard the

CLOANINGER v. MCDEVITT 13

screams, accompanied by loud banging noises, but the plain-

tiff, who was alone in the apartment, denied making them and

other residents of the apartment complex disagreed about their

source. Id. at 962-64. We held that the officers acted reason-

ably in seizing the plaintiff for psychological evaluation

because they had received both repeated citizen complaints

about violent screams and verified through multiple personal

observations that the screams appeared to come from the

vicinity of the plaintiff’s apartment. Id. at 965-66. The defen-

dants contend that Cloaninger’s threats to kill them and bel-

ligerent behavior similarly created exigent circumstances

justifying their conduct.

We believe neither of these arguments resolves the matter.

We cannot rely on the officers’ characterization of Cloan-

inger’s behavior because he denies it. On summary judgment

we must take the facts in the light most favorable to him.

Consequently, for the purpose of our analysis, we must

assume Cloaninger was not belligerent and did not threaten

the officers. However, we cannot ignore the undisputed evi-

dence that these defendants had much more information avail-

able to them than the mere 911 call in Bailey. We believe that

additional information known to the officers in this case

establishes probable cause for them to seize Cloaninger.

Indeed, as in Gooden, had "the officers done nothing"—and

had Cloaninger hurt himself or someone on the prem-

ises—"the consequences may have been irremediable." Cf.

954 F.2d at 967.

In the criminal arrest context, probable cause exists where

"the facts and circumstances within [the officers’] knowledge

and of which they had reasonably trustworthy information

were sufficient to warrant a prudent man in believing that the

[defendant] had committed or was committing an offense."

Beck v. Ohio, 379 U.S. 89, 91 (1964). While both Gooden,

954 F.2d at 968, and Bailey, 349 F.3d at 739, found a "lack

of clarity" in the law concerning the existence of probable

cause to justify a seizure for psychological evaluation, we

14 CLOANINGER v. MCDEVITT

believe officers have probable cause to seize a person for a

psychological evaluation when "the facts and circumstances

within their knowledge and of which they had reasonably

trustworthy information were sufficient to warrant a prudent

man" to believe that the person poses a danger to himself or

others. Cf. Beck, 379 U.S. at 91. This dual concern was evi-

dent in Gooden, where we stated that "the reasonableness of

[the officers’] response must be gauged against the reason-

ableness of their perceptions"—in that case, of a "genuine

danger" not only to the residents of the apartment complex

but to the plaintiff herself. 954 F.2d at 965-66.

Lo knew that Cloaninger had made prior suicide threats,

that police had responded to those threats, and that firearms

had been found in the home. Treadway called the VA hospi-

tal, where a nurse who knew Cloaninger confirmed that he

had made prior suicide threats. Treadway had no reason to

doubt the objectivity of the nurse or the veracity of her infor-

mation. Both the VA nurse and the Burke County magistrate

agreed that an emergency commitment was an appropriate

action. On these undisputed facts, we hold that the defendants

had probable cause to seize Cloaninger and detain him for the

purposes of a psychological evaluation. But this does not end

our inquiry into the reasonableness of their conduct.

While probable cause is sufficient to effect a seizure, the

unique qualities of the home prohibit seizures there without a

warrant or exigent circumstances. "[T]he Fourth Amendment

has drawn a firm line at the entrance to the house. Absent exi-

gent circumstances, that threshold may not reasonably be

crossed without a warrant." Payton v. New York, 445 U.S.

573, 590 (1980). Exigent circumstances exist when there is "a

risk of danger to the police or to other persons inside or out-

side the dwelling . . . ." United States v. Moses, 540 F.3d 263,

270 (4th Cir. 2008) (internal quotation marks omitted).

Regardless of Cloaninger’s disputed behavior, the initial

VA call, coupled with knowledge of Cloaninger’s prior sui-

CLOANINGER v. MCDEVITT 15

cide threats and the belief that he possessed firearms, estab-

lished to an objectively reasonable police officer that

Cloaninger was a danger to himself. Moreover, Treadway

concluded that the situation at the house was too unstable for

any of the three officers there to leave the premises to obtain

the emergency commitment order. Accordingly, the circum-

stances facing the defendants were exigent and we hold that

the undisputed facts in this case establish that the officers’

conduct was objectively reasonable.

Because Cloaninger’s evidence on summary judgment fails

to establish any objectively unreasonable conduct, he cannot

prove that the defendants violated a clearly established consti-

tutional right. Thus, qualified immunity bars Cloaninger’s suit

against Parlier and Lo individually and summary judgment

was properly awarded.11

B. Claims Under State Law

Qualified immunity against state law claims under North

Carolina law requires a substantively different analysis from

qualified immunity against a claim brought under 42 U.S.C.

§ 1983 alleging the violation of a federal right. Andrews v.

Crump, 547 S.E.2d 117, 123 (N.C. Ct. App. 2001). Accord-

ingly, we evaluate Cloaninger’s remaining state law claims

separately under applicable North Carolina law. The state law

claims presented in the complaint are false arrest, false

imprisonment, assault and battery, malicious prosecution,

negligent hiring, negligent supervision, and punitive damages.

11

Qualified immunity does not bar § 1983 actions brought against

defendants in their official capacity. Ridpath v. Bd. of Governors of Mar-

shall Univ., 447 F.3d 292, 307 n.13 (4th Cir. 2006). Although Cloan-

inger’s complaint names Parlier and Lo defendants both individually and

in their official capacity, his federal claims against them in their official

capacity must also fail because the complaint does not allege that they

acted pursuant to a regulation, policy, or practice authorizing unconstitu-

tional action against him. Jackson v. Long, 102 F.3d 722, 731 (4th Cir.

1996).

16 CLOANINGER v. MCDEVITT

For the reasons that follow, the Administratrix cannot prevail

on any of these claims because they are either abated, aban-

doned, or fail as a matter of law.

1. Abated Claims

Based on the concession in the Administratix’ Motion to

Substitute Parties, we disregard Cloaninger’s state law claims

of false arrest and false imprisonment because these claims

have been abated by his death. In addition, Cloaninger inextri-

cably linked his assault and battery claim to his abated claim

of false imprisonment. In his response to the defendants’

motion for summary judgment, Cloaninger declared that,

under North Carolina law, "[w]ith every false imprisonment

allegation, there is necessarily an allegation of assault." (J.A.

111.) Cloaninger renews this association on appeal by assert-

ing that the magistrate judge erred in finding no genuine issue

of material fact as to assault and battery because, he contends,

the issue of whether Parlier and Lo falsely imprisoned him

remains in dispute. (Br. Appellant 25.)

Cloaninger has correctly stated North Carolina law. In

Hoffman v. Clinic Hosp., Inc., 197 S.E. 161 (N.C. 1938) (per

curiam), the Supreme Court of North Carolina held that

"[f]alse imprisonment is the illegal restraint of one’s person

against his will. It generally includes an assault and battery,

and always, at least, a technical assault." Id. at 162. However,

because Cloaninger presents his assault and battery claim as

nothing more than the necessary implication, under state law,

of his false imprisonment claim, we consider it to be included

in the false imprisonment claim abated by his death.

2. Abandoned Claims

Cloaninger expressly abandoned his negligent supervision

claim, and we consider his malicious prosecution claim aban-

doned as well.

CLOANINGER v. MCDEVITT 17

Under North Carolina law, "[a] plaintiff must prove four

essential elements to establish a malicious prosecution

claim[:] (1) that defendant initiated the earlier proceeding, (2)

that he did so maliciously and (3) without probable cause, and

(4) that the earlier proceeding terminated in plaintiff’s favor."

Jones v. Gwynne, 323 S.E.2d 9, 11 (N.C. 1984) (internal quo-

tation marks omitted). However, Cloaninger directed his

claim of malicious prosecution against different proceedings

at different times. In his complaint, he clearly directs the

claim to the resisting arrest charge, which was ultimately dis-

missed:

53. Following the improper arrest of the Plaintiff . . .

he was charged with, inter alia, resisting arrest.

....

55. At the time said charges were made, [the] Defen-

dants knew, or should have known, that there had

been no lawful arrest of the Plaintiff, or any illegal

resistance thereof.

56. During the trial based on the false arrest warrant,

the charge of resisting arrest was dismissed.

(J.A. 18.)

At no point in his complaint does Cloaninger direct the

malicious prosecution claim to his involuntary commitment.

However, for the first time in his response to the defendants’

motion for summary judgment, Cloaninger asserts that the

malicious prosecution claim is based on Parlier and Lo’s

failed attempt to have him involuntarily committed: "[T]he

Defendants lacked probable cause to arrest [Cloaninger] as a

candidate for an Involuntary Commitment. . . . There is no

question that the Involuntary Commitment proceeding failed."

(J.A. 112.) It is this second position that Cloaninger maintains

on appeal by contending that the magistrate judge "considered

18 CLOANINGER v. MCDEVITT

this claim in light of the Communicating Threats and Resist-

ing Arrest charges against [Cloaninger], rather than in light of

the Involuntary Commitment Order. However, the Response

[to the defendants’ motion for summary judgment] makes

clear that this claim relates to the involuntary commitment

proceeding." (Br. Appellant 25) (citations omitted).

Cloaninger’s current malicious prosecution claim is there-

fore not the one presented in his complaint. We have previ-

ously held, along with the Fifth, Sixth, Seventh, and Eleventh

Circuits, that a plaintiff may not raise new claims after dis-

covery has begun without amending his complaint. Barclay

White Skanska, Inc. v. Battelle Mem’l Inst., 262 Fed. Appx.

556, 563 (4th Cir. 2008) (unpublished) (citing Tucker v.

Union of Needletrades, Indus., & Textile Employees, 407 F.3d

784, 788 (6th Cir. 2005); Gilmour v. Gates, McDonald & Co.,

382 F.3d 1312, 1315 (11th Cir. 2004); Shanahan v. City of

Chicago, 82 F.3d 776, 781 (7th Cir. 1996); and Fisher v.

Metro. Life Ins. Co., 895 F.2d 1073, 1078 (5th Cir. 1990)).

Therefore, we will not consider Cloaninger’s claim of mali-

cious prosecution based on the involuntary commitment pro-

ceeding. In addition, because Cloaninger did not argue his

claim of malicious prosecution based on the resisting arrest

charge below or on appeal, it is abandoned. See 11126 Balti-

more Boulevard, Inc. v. Prince George’s County, 58 F.3d

988, 993 n.7 (4th Cir. 1995) (en banc) (issue waived when not

argued on appeal).

3. Claims Failing as a Matter of Law

Both the punitive damages and negligent supervision

claims fail as a matter of state law. Punitive damages are not

a cause of action, Hawkins v. Hawkins, 400 S.E.2d 472, 474

(N.C. Ct. App. 1991), and Cloaninger has not presented facts

sufficient to support each of the elements necessary to estab-

lish negligent supervision.

To prevail on a claim for negligent supervision in North

Carolina, a plaintiff must prove:

CLOANINGER v. MCDEVITT 19

(1) the specific negligent act on which the action is

founded . . . (2) incompetency, by inherent unfitness

or previous specific acts of negligence, from which

incompetency may be inferred; and (3) either actual

notice to the [employer] of such unfitness or bad

habits, or constructive notice, by showing that the

[employer] could have known the facts had he used

ordinary care in oversight and supervision, . . .; and

(4) that the injury complained of resulted from the

incompetency proved.

Medlin v. Bass, 398 S.E.2d 460, 462 (N.C. 1990) (quoting

Walters v. Lumber Co., 80 S.E. 49, 51 (N.C. 1913)) (internal

quotation marks and emphasis omitted)). In order to prove the

third element, notice, "the plaintiff must prove . . . that prior

to the [employee’s tortious] act, the employer knew or had

reason to know of the employee’s incompetency." Barker v.

Kimberly-Clark Corp., 524 S.E.2d 821, 827 (N.C. Ct. App.

2000) (internal quotation marks omitted).

Cloaninger does not allege any basis upon which McDevitt

would know or have reason to know Parlier and Lo were

incompetent because the only acts of Parlier and Lo alleged

in the complaint are those which occurred on March 9 and 10,

2005. McDevitt, as the employer, obviously could not have

prior notice of his employees’ incompetence on the basis of

a present act, even if that act is incompetent as alleged.

Accordingly, Cloaninger has failed to allege or present any

evidence which could establish the required element of notice

for a claim of negligent supervision. His claim therefore fails

as a matter of law.

In summary, all of Cloaninger’s state law claims fail either

because they have abated, are abandoned, or cannot be sus-

tained as a matter of law.

III.

For the foregoing reasons, we therefore affirm the judg-

ment of the magistrate judge.

AFFIRMED