# Shaw v. Raleigh Police Department

> District Court, E.D. North Carolina · June 8, 2023

URL: https://www.frixlaw.com/law-library/cases/10653262

## Case

- **Court:** District Court, E.D. North Carolina
- **Decided:** June 8, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
No. 5:22-CV-476-D

COREY SHAW, )
)
Plaintiff, )

Vv. ) ORDER
RALEIGH POLICE DEPARTMENT, )
SHAWN THOMPSON, individually )
and in his official capacity, and )
CITY OF RALEIGH, )
Defendants. )

On November 23, 2022, Corey Shaw (“Shaw” or “plaintiff’) filed a complaint in this court
against the Raleigh Police Department (“RPD”), Officer Shawn Thompson (“Thompson”), in his
individual and official capacity, and the City of Raleigh (“Raleigh”) (collectively, “defendants”)
alleging a violation of the Fourth Amendment to the Constitution of the United States, a violation
of Article 1, Section 19 of the North Carolina Constitution, trespass to chattel (against Thompson
only), false imprisonment (against Thompson only), and requesting compensatory and punitive
damages [D.E. 1]. On February 3, 2023, Thompson moved to dismiss the complaint for failure to
state a claim upon which relief can be granted [D.E. 18]. See Fed. R. Civ. P. 12(b)(6).
On February 24, 2023, Shaw filed an amended complaint, alleging the same causes of action
as in the initial complaint and adding a section on malicious prosecution. See Am. Compl. [D.E.
20].! On March 6, 2023, the RPD moved to dismiss the amended complaint for failure to state a

1 In light of the amended complaint, the court dismisses as moot Thompson’s motion to
dismiss the complaint.

claim upon which relief can be granted [D.E. 21]. See Fed. R. Civ. P. 12(b)(6). Shaw did not
respond to the RPD’s motion to dismiss. The same day, Raleigh and Thompson in his official
capacity moved to dismiss the amended complaint for failure to state a claim upon which relief can
be granted [D.E. 23]. See Fed. R. Civ. P. 12(b)(6). On April 10, 2023, Shaw responded in
opposition [D.E. 30]. On May 1, 2023, Raleigh and Thompson in his official capacity replied [D.E.
32].
On April 10, 2023, Thompson in his individual capacity moved to dismiss the amended
complaint for failure to state a claim upon which relief can be granted [D.E. 27]. See Fed. R. Civ.
P. 12(b)(6). Shaw did not respond to Thompson’s motion to dismiss in his individual capacity. As
explained below, the court grants defendants’ motions to dismiss and dismisses without prejudice
Shaw’s amended complaint.
I,
On August 2, 2019, RPD Officers Thompson, Perrin, and Twiddy, were patrolling in an
unmarked police vehicle on New Bern Avenue. See Am. Compl. ff 6—7.2. While waiting at □□ red
light, Thompson saw Shaw in a vehicle on his right. See id. at ¢ 9. Thompson thought he saw the
passenger in Shaw’s car, Robert Banks (“Banks”) smoking something. See id. Based on this
observation, and an “odor of marijuana,” Thompson began to follow Shaw’s car. See id, at J 10.
Shaw was driving safely and obeying all applicable traffic laws at the time. See id. at ¥ 11.
Thompson initiated a traffic stop once Shaw turned onto New Hope Road. See id. at 12.
Thompson asked Shaw to exit the vehicle and began questioning Shaw about whether Shaw or
Banks possessed marijuana. See id. at J 14. During the questioning, Banks stated multiple times

2 Shaw does not name Officers Perrin and Twiddy as defendants.

that he was smoking CBD. See id. at § 16. Unlike marijuana, CBD is legal in North Carolina. See
id. at [J 16, 26. At no point during the stop did Shaw or Banks admit to eerie or smoking
marijuana. See id. at § 15.
In his written arrest report, Thompson stated that Banks admitted to possessing marijuana
and that Shaw admitted that it “was stupid that the passenger and he were smoking marijuana like
that.” Id. at Jf 17-18. Thompson also alleged that he found a black cannister with a plastic bag
inside containing marijuana without fully examining the cannister. See id. at J 19.
Thompson and the other officers then searched the vehicle based solely on the smell and
appearance of marijuana. See id. at 22. The vehicle’s glove box was locked, and Thompson used
Shaw’s keys to open it. See id. at {{] 23-24. Thompson found a Smith and Wesson firearm in the
glovebox. See id. at 725. Thompson then arrested Shaw for possession of a firearm by a felon. See
id. The RPD did not charge Banks or Shaw with a controlled substance offense. See id. at J 20.
A Wake County Superior Court judge suppressed evidence from the traffic stop, finding that
Thompson did not have probable cause to search Shaw’s vehicle. See id. at {J 32, 35. The court
found that Thompson did not have a warrant and that Shaw did not consent to the search. See id.
at 31-32. The court also found that Thompson “ignored reasonable indications that the substance
in possession by Plaintiff was hemp and included statements in his report which the Court found to
be untrue based on credible evidence presented at a hearing.” Id. at 33. Accordingly, the search
violated the Fourth Amendment, and Shaw was not convicted of possession of a firearm by a felon.
See id. at J] 32, 35, 71.27

3 The amended complaint does not state how the prosecution ended (i.e., dismissal, acquittal,
or some other resolution). Rather it simply states that the “North Carolina prosecution in Wake
County Case Number 19CRS214262 ended in plaintiffs favor.” Id. at § 71.

. I.
Shaw’s amended complaint concerns the traffic stop on August 2, 2019, and contains (1) a
claim under the Fourth Amendment and 42 U.S.C. § 1983; (2) a claim under Article I, section 19,
of the North Carolina Constitution; (3) a trespass to chattel claim against Thompson individually;
(4) a false imprisonment claim against Thompson individually; (5) a Monell ‘claim against Raleigh
and the RPD; and (6) a malicious prosecution claim. See Am. Compl. {J 37-71. Shaw seeks
compensatory and punitive damages of more than $1,000,000. .
A motion to dismiss under Rule 12(b)(6) tests the complaint’s legal and factual sufficiency.
See Ashcroft v. Iqbal, 556 U.S. 662, 677-80 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544,
554-63 (2007); Coleman v. Md. Court of Appeals, 626 F.3d 187, 190 (4th Cir. 2010), aff'd, 566
U.S. 30 (2012); Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008). To withstand a Rule
12(b)(6) motion, a pleading “must contain sufficient factual matter, accepted as true, to state a claim
to relief that is plausible on its face.” Iqbal, 556 U.S. at 678 (quotation omitted); see Twombly, 550
U.S. at 570; Giarratano, 521 F.3d at 302. In considering the motion, the court must construe the
facts and reasonable inferences “in the light most favorable to the [monmoving party].” Massey v.
Ojaniit, 759 F.3d 343, 352 (4th Cir. 2014) (quotation omitted); see Clatterbuck v. City of
Charlottesville, 708 F.3d 549, 557 (4th Cir. 2013), abrogated on other grounds by Reed v. Town of
Gilbert, 576 U.S. 155 (2015). A court need not accept as true a complaint’s legal conclusions,
“unwarranted inferences, unreasonable conclusions, or arguments.” Giarratano, 521 F.3d at 302
(quotation omitted); see Iqbal, 556 U.S. at 678-79. Rather, a plaintiff's factual allegations must
“nudge[ } [his] claims,” Twombly, 550 U.S. at 570, beyond the realm of “mere possibility” into

4 Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690-94 (1978).

“plausibility.” Iqbal, 556 U.S. at 678-79.
When evaluating a motion to dismiss, a court considers the pleadings and any materials
“attached or incorporated into the complaint.” E.L du Pont de Nemours & Co. v. Kolon Indus., Inc.,
637 F.3d 435, 448 (4th Cir. 2011); see Fed. R. Civ. P. 10(c); Goines v. Valley Cmty. Servs. Bd., 822
F.3d 159, 166 (4th Cir. 2016); Thompson v. Greene, 427 F.3d 263, 268 (4th Cir. 2005). A court may
also consider a document submitted by a moving party if it is “integral to the complaint and there
is no dispute about the document’s authenticity.” Goines, 822 F.3d at 166. Additionally, a court
may take judicial notice of public records without converting the motion to dismiss into a motion
for summary judgment. See, e.g., Fed. R. Evid. 201; Tellabs, Inc. v. Makor Issues & Rts., Ltd., 551
USS. 308, 322 (2007); Philips v. Pitt Cnty. Mem’] Hosp., 572 F.3d 176, 180 (4th Cir. 2009).
North Carolina law applies to some claims in this case. Accordingly, with respect to those
claims, this court must predict how the Supreme Court of North Carolina would rule on any disputed
state-law issue. See Twin City Fire Ins, Co, v. Ben Amold-Sunbelt Beverage Co. of §.C., 433 F.3d
365, 369 (4th Cir. 2005). In doing so, the court must look first to opinions of the Supreme Court of
North Carolina. See Stahle v. CTS Corp., 817 F.3d 96, 100 (4th Cir. 2016). If there are no
governing opinions from that court, this court may consider the opinions of North Carolina Court
of Appeals, treatises, and “the practices of other states.” Twin City Fire Ins. Co., 433 F.3d at 369
(quotation and citation omitted). In doing a this court “should not create or expand a [s]tate’s
public policy.” Time Warner Entm’t-Advance/Newhouse P’ship v. Carteret-Craven Elec.
Membership Corp., 506 F.3d 304, 314 (4th Cir. 2007) (alteration and quotation omitted); see Wade
v. Danek Med., Inc., 182 F.3d 281, 286 (4th Cir. 1999). Moreover, in predicting how the highest
court of a state would address an issue that it has not yet resolved, this court must “follow the
decision of an intermediate state appellate court unless there is persuasive data that the highest court

would decide differently.” Town of Nags Head v. Toloczko, 728 F.3d 391, 398 (4th Cir. 2013)
(quotation omitted).
A.
The RPD moves to dismiss the amended compliant and argues that the RPD lacks capacity
to be sued. See [D.E. 22] 3. “[A] governmental entity may only be sued if the law of the state in
which the court is located permits it” Smith v. Munday, 848 F.3d 248, 256 (4th Cir. 2017) (citing
cases); Fed. R. Civ. P. 17(b)(3). Under North Carolina law, “police departments cannot be sued as
entities.” Id.; see Ragland v. Doe, 811 F. App’x 177, 177 (4th Cir. 2020) (per curiam)
(unpublished); Parker v. Bladen Cnty., 583 F. Supp. 2d 736, 740 (EDN.C. 2008); Moore v. City
of Asheville, 290 F. Supp. 2d 664, 673 (W.D.N.C. 2003), aff'd, 396 F.3d 385 (4th Cir. 2005).
Therefore, the RPD lacks capacity to be sued under North Carolina law, and the court grants the
RPD’s motion to dismiss.
Shaw also failed to respond to the RPD’s motion to dismiss and Thompson’s motion to
dismiss in his individual capacity. Courts within the Fourth Circuit “agree that failing to respond
to an argument constitutes an abandonment of a claim.” Sawyers v. United Parcel Serv., Inc., No.
1:18CV1037, 2019 WL 4305771, at *3 (M.D.N.C. Sept. 11, 2019) (unpublished); see, e.g., Morgan
v. Ellis, No. 3:22-CV-3, 2023 WL 3361200, at *3 (W.D.N.C. May 10, 2023) (unpublished);
Ferdinand-Davenport v. Children’s Guild, 742 F. Supp. 2d 772, 783 (D. Md. 2010). Thus, Shaw has
abandoned his claims against the RPD and Thompson in his individual capacity. Accordingly, the
court dismisses Shaw’s claims against the RPD and Thompson in his individual capacity.
B.
Raleigh moves to dismiss the amended complaint and argues that the three-year statute of
limitations bars Shaw’s claims. See [D.E. 28] 6-8; [D.E. 32] 1-2. Shaw responds that his claims
6 □

are not time barred and focuses on his malicious prosecution claim. See [D.E. 30] 5—7; cf.
McDonough v. Smith, 139 S. Ct. 2149, 2154-55 (2019) (statute of limitations for a fabricated
evidence claim under 42 U.S.C. § 1983 doés not begin to run until the criminal proceeding against
the defendant terminated in defendant’s favor).
Initially, the court addresses Shaw’s malicious prosecution claim. Unfortunately, it is not
clear what Shaw is alleging in his malicious prosecution claim and against whom he is alleging it.
See Am. Compl. ff 68-71. Although Shaw argues in his memorandum in opposition to Raleigh’s
motion to dismiss that he is alleging a malicious prosecution claim under 42 U.S.C. § 1983 against
both Raleigh and Thompson, the amended complaint does not support the argument. Shaw does not
mention Raleigh in his malicious prosecution claim. See Am. Compl. {{] 68—71. Rather, Shaw
alleges that “Defendant Shawn Thompson instituted a criminal proceeding without probable cause.”
Id. at ] 69. Moreover, Shaw does not allege anything about Raleigh having a policy, custom, pattern,
or practice in a way that would impose municipal liability due to malicious prosecution. Cf. Bd. of
Cnty. Comm’rs v. Brown, 520 U.S. 397, 403-05 (1997); Hafer v. Melo, 502 U.S. 21, 25 (1991);
Kentucky v. Graham, 473 U.S. 159, 166 (1985); Monell, 436 U.S. at 690-94; King v. Rubenstein,
825 F.3d 206, 223 (4th Cir. 2016); Santos v. Frederick Cnty. Bd. of Comm’rs, 725 F.3d 451, 469-70
(4th Cir. 2013); Lytle v. Doyle, 326 F.3d 463, 471 (4th Cir. 2003); Carter v. Morris, 164 F.3d 215,
218-19 (4th Cir. 1999). Although the amended complaint attempts to make such policy allegations
about Shaw’s trespass to chattel claim against Thompson individually, see Am. Compl. 60-67,
nothing in Shaw’s Monell section mentions malicious prosecution.” Thus, the amended complaint

> Adding to the confusion, Shaw’s amended complaint includes “Count II: Trespass to
Chattel” against “Defendant Thompson Individually” on page 8 of the amended complaint, and also
includes a different “Count III: Monell v. Dep’t of Social Servs., 436 U.S. 658 (1977) - Defendants
City of Raleigh And Raleigh Police Department” on page 10. See Am. Compl. at 8, 10.

does not allege a malicious prosecution claim against Raleigh.
Additionally, the amended complaint does not clarify whether Shaw is alleging his malicious
prosecution claim under North Carolina law alone or as a 42 U.S.C. § 1983 claim. Accordingly, the
court cannot determine whether Shaw alleges this claim against Thompson in his official capacity,
individual capacity, or both. This distinction helps not only to identify the proper defendant, but also
to analyze the statute of limitations. Because Shaw’s discussion of malicious prosecution in his
amended complaint does not refer to the North Carolina Constitution or mention 42 U.S.C. § 1983,
Shaw may be alleging a states law malicious prosecution claim against Thompson in his individual
capacity. However, because Shaw has abandoned his claims against Thompson in his individual
capacity, he also abandoned such a malicious prosecution claim against Thompson.
Alternatively, even if Shaw’s amended complaint contains a malicious prosecution claim
against both Raleigh and Thompson under 42 U.S.C. § 1983 or state law alone, Shaw has failed to
plausibly allege malicious prosecution against either defendant. Under North Carolina law, “[t]o
establish malicious prosecution, a plaintiff must show that the defendant (1) initiated or participated
in the earlier proceeding, (2) did so maliciously, (3) without probable cause, and (4) the earlier
proceeding ended in favor of the plaintiff.” Turner v. Thomas, 369 N.C. 419, 425, 794 S.E.2d 439,
444 (2016); see N.C. Farm Bureau Mut. Ins. Co. v. Cully’s Motorcross Park, Inc., 366 N.C. 505,
512, 742 S.E.2d 781, 786-87 (2013). In a malicious prosecution claim, probable cause means “the
existence of such facts and circumstances, known to the defendant at the time, as would induce a
reasonable man to commence a prosecution.” Turner, 369 N.C. at 425, 794 S.E.2d at 444 (cleaned
up); see Best v. Duke Univ., 337 N.C. 742, 750, 448 S.E.2d 506, 510 (1994); Cook v. Lanier, 267
N.C. 166, 170, 147 S.E.2d 910, 914 (1966). The fact that the criminal proceeding ultimately ended
in Shaw’s favor does not “automatically negate the existence of probable cause at the time

prosecution was commenced” or establish malice. Turner, 369 N.C. at 425, 794 S.E.2d at 445.
“A plaintiff alleging malicious or intentional acts by a government official faces a high bar.”
Fox v. City of Greensboro, 279 N.C. App. 301, 316, 866 S.E.2d 270, 284 (2021). “[T]he malice
element may be satisfied by a showing of either actual or implied malice.” Kirschbaum v. McLaurin
Parking Co., 188 N.C. App. 782, 789, 656 S.E.2d 683, 688 (2008) (citation omitted). Malice
requires that the defendant “was motivated by personal spite and a desire for revenge” or that the
defendant acted with “reckless and wanton disregard” for the plaintiffs rights. Fox, 279 N.C. App.
at 316, 866 S.E.2d at 284 (cleaned up).
‘Shaw alleges that Thompson claims to have smelled and identified marijuana in Shaw and
Banks’s possession. See id. at Am. Compl. ff] 14, 16-18. Shaw admits that Banks told Thompson
“approximately six times” on camera that he was smoking CBD, and does not deny that CBD was
in the car during the traffic stop. See id. at § 16. Thompson did not believe Banks’s claim that the
substance was CBD and wrote in his arrest report that Banks “admitted to possessing marijuana.”
Id. at 17.

. But the amended complaint also explains that “CBD, Hemp, and Marijuana products are all
made from the cannabis sativa species, and they are indistinguishable from one another by sight and
smell.” Id. at § 27 (emphasis added). Moreover, “[t]here is currently no field test which may
distinguish CBD or hemp products from marijuana.” Id. at Furthermore, Shaw admits that the
legality of Thompson’s search had precedential support. See id. at | 29 (“prior cases have permitted
the warrantless searches of automobiles based on an odor of marijuana”)

□ The amended complaint notes that the state trial court’s decision to suppress the fruits of
the search was based, in part, on Thompson’s failure to preserve the cannister which Thompson □
claimed contained marijuana. See id. at | 30. Although Shaw alleges the state trial court did not
believe Shaw or Banks had marijuana, Shaw does not allege that the court found Thompson

With these facts giving context to the August 2, 2019 traffic stop, the amended complaint
does not plausibly allege that Thompson was intentionally spiteful or reckless when he thought he
smelled marijuana and assumed Banks admitted to possessing marijuana. The amended complaint
states that CBD and marijuana are identical in smell and appearance, meaning it was reasonable for
Thompson to believe that the CBD odor and any CBD found in the canister was, in fact, marijuana.
See id. at □□□ Thompson also could not confirm Banks’s statement that Banks was smoking CBD
because, as the amended complaint alleges, there is no field test that could have chemically proven
the substance was CBD and not marijuana. See id. at 28. Moreover, to the extent Shaw argues
Thompson was reckless for initiating the stop on odor alone, Shaw admits that such stops were not
Clearly illegal on August 2, 2019. Id. at§29. Although Shaw’s amended complaint plausibly alleges
that Thompson made a mistake in assuming the CBD was marijuana and assuming that Banks’s
admission of having CBD was an admission of possessing marijuana, Shaw does not plausibly allege
that Thompson made these mistakes out of spite or was otherwise acted with “reckless and wanton
disregard” of Shaw’s rights. Fox, 279 N.C. App. at 316, 866 S.E.2d at 284.
In light of the facts alleged in the amended complaint, Shaw’s bare, conclusory allegation that
Thompson “acted with malice” and a “reckless disregard” to Shaw’s rights is implausible. Am.
Compl. | 70. Accordingly, the court dismisses Shaw’s malicious prosecution claim.’
As for the remainder of Shaw’s claims, defendants argue that they arose from the August 2,
2019 traffic stop, accrued on that date, and are time barred by the applicable three-year statute of
limitations. A party may raise an affirmative defense based on the statute of limitations under

intentionally lied in his arrest report or otherwise maliciously misled the court.
7 Tn light of this conclusion, the court does not address the statute of limitations concerning
Shaw’s malicious prosecution claim. Cf. McDonough, 139 S. Ct. at 2154-55.
10

Federal Rule of Civil Procedure 12(b)(6) rather than Rule 8(c) if all facts necessary to the affirmative
defense “clearly appear[ ] on the face of the complaint.” Richmond, Fredericksburg & Potomac R.R.
v. Forst, 4 F.3d 244, 250 (4th Cir. 1993); see Goodman v. Praxair, Inc., 494 F.3d 458, 464 (4th Cir.
2007) (en banc).
“The limitations period for a [section] 1983 claim begins to run when the plaintiff has a
complete and present cause of action—in other words, when it could have file[d] suit and obtain[ed]
relief.” Tommy Davis Const., Inc. v. Cape Fear Pub. Util. Auth., 807 F.3d 62, 67 (4th Cir. 2015)
(quotation omitted); see Wallace v. Kato, 549 U.S. 384, 388 (2007). Section 1983 claims “arising
in North Carolina are limited by the three-year period for personal injury actions set forth in [N.C.
Gen.Stat.] § 1-52(5).” Tommy Davis Const., Inc., 807 F.3d at 67 (quoation omitted); see Nat’]
Advertising Co. v. City of Raleigh, 947 F.2d 1158, 1162 n. 2 (4th Cir. 1991). Shaw’s claims under
Article 1 section 19 of the North Carolina Constitution also are subject to a three-year statute of
limitations. See Morley v. N.C. Dep’t of Health & Hum. Servs./Broughton Hosp., 171 F. Supp. 2d
585, 592 (W.D.N.C. 2001) (collecting cases).
Putting aside Shaw's malicious prosecution claim, Shaw’s other claims arising from the
traffic stop accrued on August 2, 2019. The three-year statute of limitations period expired on
August 2, 2022. Shaw filed his complaint in this action on November 23, 2022. See [D.E. 1]. Thus,
the remainder of Shaw’s claims are untimely, and the court dismisses them as time barred.
Il.
In sum, the court DISMISSES AS MOOT Thompson’s first motion to dismiss [D.E. 18],
GRANTS defendants’ motions to dismiss [D.E. 21, 23, 27], and DISMISSES WITHOUT
PREJUDICE plaintiff's amended complaint [D.E. 20].

11

SO ORDERED. This _@ day of June, 2023.

fe C. DEVER III
United States District Judge

12

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10653262. Public record. Not legal advice.