TERRY v. LAFAVE

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

ERIC TERRY, )

)

Plaintiff, )

)

v. ) 1:23CV208

)

SERGEANT JEFFREY LAFAVE, et al., )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

This case comes before the Court on the Motion for Summary

Judgment filed by Defendants Sergeant Jeffrey LaFave (“Defendant

LaFave”), Officer Anthony Monahan (“Defendant Monahan”), and

Officer Brandon Earl (“Defendant Earl”) (collectively,

“Defendants”) (Docket Entry 26). Because the record establishes

Defendants’ entitlement to judgment as a matter of law, the Court

will grant the instant Motion.1

BACKGROUND

On January 27, 2023, Plaintiff commenced this action by filing

a complaint against Defendants in state court. (See Docket Entry

2 (the “Complaint”).) According to the Complaint:

On or about January 28, 2020, at approximately 7:15 pm

Defendants LaFave and Monahan were conducting traffic

control after an accident occurred at the intersection of

Linden Road and Highway 5. . . . [Plaintiff] slowly

approached the intersection while in a single lane of

1 Pursuant to the parties’ consent, United States District

Judge Loretta C. Biggs referred this case to the undersigned United

States Magistrate Judge for all proceedings. (See Docket Entry 15

at 1.)

traffic, driving at a cautious and appropriate speed.

While approaching Defendants LaFave and Monahan,

Plaintiff was given separate directives and instructions

from each of the Defendants. . . . [O]nce [Plaintiff]

traveled beyond the scene and debris, he could hear

[Defendant] LaFave yelling and directing him to stop. As

instructed, [Plaintiff] promptly came to a safe stop.

(Docket Entry 2 at 2-3.)

The Complaint further alleges that Defendant LaFave approached

the driver’s side of the vehicle and asked Plaintiff, “[w]here’s

the weed?” (Id. at 3.) In response (per the Complaint):

Plaintiff immediately provided a container with small

bits of an unknown substance inside of it. . . .

[Defendant] Monahan while holding his service weapon and

pointing it downward, ordered [Plaintiff] to exit his

vehicle. [Plaintiff] respectfully complied. . . .

Defendant Earl . . . arrived on scene and placed

handcuffs on [Plaintiff] . . . . Subsequently,

[Plaintiff] was . . . charged with Felony Possession with

the Intent to Sell and/or Deliver Marijuana and three

misdemeanors.

(Id.) Lastly, the Complaint states: “On July 8, 2020, a [p]robable

[c]ause and [s]uppression hearing was held [in state court]” (id.),

“[Plaintiff]’s criminal charges were dismissed on August 26, 2021”

(id. at 4), “and all charges against [Plaintiff] were expunged on

November 28, 2021” (id.).

In reliance on the Complaint’s allegations, Plaintiff pleads

five claims for relief. First, he asserts that Defendant LaFave

unlawfully conducted a traffic stop violating Plaintiff’s Fourth

Amendment rights. (See id.) Next, Plaintiff asserts claims

against Defendants under state law for false imprisonment, assault

and battery, intentional infliction of emotional distress (“IIED”),

2

and malicious prosecution. (See id. at 5-7.) As relief, Plaintiff

seeks, inter alia, “compensatory damages in an amount in excess of

twenty-five thousand dollars” (id. at 7) and “punitive damages in

an amount to be determined by a jury” (id. at 8).

Defendants have filed a “mo[tion] for summary judgment on all

claims asserted in the Complaint on the grounds that there is no

genuine issue of material fact and Defendants are entitled to

judgment as a matter of law.” (Docket Entry 26 at 1.) In

particular, Defendants’ supporting memorandum asserts that, (i)

“summary judgment is appropriate on all of Plaintiff’s claims

without reaching the merits because each claim is barred by the

doctrine of collateral estoppel” (Docket Entry 27 at 11 (emphasis

omitted and standardized capitalization used); see also id. at □□□□□

15 (developing that argument)), (ii) “summary judgment is

appropriate on the merits because no reasonable jury could find for

Plaintiff on his Fourth Amendment and state law claims” (id. at 16

(emphasis omitted and standardized capitalization used); see also

id. at 16-22 (developing that argument)), (111) Plaintiff’s “Fourth

Amendment unlawful traffic stop claim is, at the very least, barred

by qualified immunity” (id. at 23 emphasis omitted and standardized

capitalization used); see also id. at 23-24 (developing that

argument)), and (iv) Plaintiff’s “state law claims are, at the very

least, barred by public official immunity”? (id. at 24; see also

id. at 24-25 (developing that argument)). Plaintiff has responded

in opposition to the instant Motion (see Docket Entry 30) and

Defendants have replied (see Docket Entry 31).

DISCUSSION

I. Relevant Standards

“The [C]ourt shall grant summary judgment if [Defendants]

show[ ] that there is no genuine dispute as to any material fact

and [they are] entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56(a). A material factual dispute exists “if the evidence

is such that a reasonable jury could return a verdict for

[Plaintiff].” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986). When considering summary judgment, the Court “tak[es] the

evidence and all reasonable inferences drawn therefrom in the light

most favorable to [Plaintiff].” Henry v. Purnell, 652 F.3d 524,

531 (4th Cir. 2011) (en banc). Put another way, Plaintiff “is

entitled to have the credibility of his evidence as forecast

assumed, his version of all that is in dispute accepted, and all

internal conflicts in it resolved favorably to him.” Miller v.

Leathers, 913 F.2d 1085, 1087 (4th Cir. 1990) (internal brackets

and quotation marks omitted). If, applying that standard, the

2 “North Carolina courts refer to this form of immunity as

‘oublic officer immunity’ and ‘oublic official immunity,’

interchangeably, though the trend seems to indicate that ‘public

official immunity’ is more common now.” Hines v. Johnson, No.

1:19cv515, 2020 WL 1516397, at *16 n.8 (M.D.N.C. Mar. 30, 2020).

Court “find[s] that a reasonable jury could return a verdict for

[Plaintiff], then a genuine factual dispute exists and summary

judgment is improper.” Evans v. Technologies Applications & Serv.

Co., 80 F.3d 954, 959 (4th Cir. 1996); see also Anderson, 477 U.S.

at 248 (“Only disputes over facts that might affect the outcome of

the suit under the governing law will properly preclude the entry

of summary jJudgment.”).

II. Analysis

Defendants advanced three main arguments for summary Judgment:

(i) collateral estoppel bars Plaintiff’s claims; (ii) Plaintiff’s

claims fail on the merits; and (iii) qualified and public official

immunity bar Plaintiff’s claims. Defendants have established

entitlement to summary judgment on the merits as to all claims and

collateral estoppel also bars Plaintiff’s lone federal claim.

A. Section 1983 Claim

To maintain a claim for relief under Section 1983, Plaintiff

must establish “that [he was] deprived of a right secured by the

Constitution or laws of the United States, and that the alleged

deprivation was committed under color of state law.” American

Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999); see

also Jones _v. Chandrasuwan, 820 F.3d 685, 691 (4th Cir. 2016)

(“Section 1983 is not itself a source of substantive rights, but

rather provides a method for vindicating federal constitutional and

statutory rights.”).

1. Individual Capacity Claim

To begin, the Complaint alleges Defendant LaFave (in his

official and individual capacity) conducted an unlawful traffic

stop in violation of Plaintiff’s Fourth Amendment right which he

asserts “protect[s him] from unreasonable and unlawful stop[s,]

searches[,] and seizures.” (Docket Entry 2 at 4.)

As relevant here, for individual liability, Plaintiff must

“show that [Defendants], acting under color of state law, caused

the deprivation of a federal right.” Kentucky v. Graham, 473 U.S.

159, 166 (1985). “As a general matter, a [state actor] may incur

[Section] 1983 liability only through affirmative misconduct.”

Randall v. Prince George’s County, 302 F.3d 188, 202 (4th Cir.

2002). “[Section] 1983 must be ‘read against the background of

tort liability that makes a man responsible for the natural

consequences of his actions.’” Vinnedge v. Gibbs, 550 F.2d 926,

928 (4th Cir. 1977) (quoting Monroe v. Pape, 365 U.S. 167, 187

(1961)). Accordingly, “it must be ‘affirmatively shown that the

official charged acted personally in the deprivation of the

plaintiff's rights.’” Wright v. Collins, 766 F.2d 841, 850 (4th

Cir. 1985) (quoting Vinnedge, 550 F.2d at 928).

“The Fourth Amendment protects ‘against unreasonable searches

and seizures’ of (among other things) the person.” Virginia v.

Moore, 553 U.S. 164, 168 (2008) (citing U.S. CONST. amend. IV).

“Temporary detention of individuals during the stop of an

6

automobile by the police, even if only for a brief period and for

a limited purpose, constitutes a seizure of persons within the

meaning of this provision.” Whren v. U.S., 517 U.S. 806, 809-10

(1996) (internal quotation marks omitted). “An automobile stop is

thus subject to the constitutional imperative that it not be

unreasonable under the circumstances. As a general matter, the

decision to stop an automobile is reasonable where the police have

probable cause to believe that a traffic violation has occurred.”

Id. at 810 (internal quotation marks omitted).

Consistent with the Fourth Amendment, North Carolina law

permits an officer to arrest without a warrant “any person who the

officer has probable cause to believe (1) has committed a criminal

offense in the officer’s presence, or (2) has committed a felony.”

State v. Hardy, 31 N.C. App. 67, 69 (1976); see also N.C. Gen.

Stat. § 15A-401(b)(1) (“An officer may arrest without a warrant any

person who the officer has probable cause to believe has committed

a criminal offense . . . in the officer’s presence.”). Further,

North Carolina law states “[n]o person shall willfully fail or

refuse to comply with any lawful order or direction of any law-

enforcement officer or traffic-control officer invested by law with

authority to direct, control or regulate traffic, which order or

direction related to the control of traffic.” N.C. Gen. Stat.

§ 20-114.1(a).

7

In this case, the Complaint alleges “Defendant[] LaFave and

[Defendant] Monahan . . . g[ave Plaintiff] separate directives and

instructions” (Docket Entry 2 at 3; see also Docket Entry 26-8 at

10 (setting out Plaintiff’s deposition testimony that “the

[officer] that [Plaintiff] saw closest to [him] was telling [him]

to come forward, and then the [second officer] . . . was telling

[Plaintiff] to turn”)). “[O]nce [Plaintiff] traveled beyond the

[intersection], he could hear [Defendant] LaFave yelling and

directing him to stop.” (Docket Entry 2 at 3.) According to

Defendant LaFave, “[he] gave [Plaintiff] the same directions that

[he] gave other vehicles, directing [Plaintiff] to turn

left . . . [however, Plaintiff] drove around [Defendant LaFave].”

(Docket Entry 26-4 at 4.) Then, “[b]ecause [Defendant LaFave]

believed that [Plaintiff] violated a traffic law by failing to

follow [his] directions as a traffic control officer, and

[Plaintiff] appeared to be heading south . . . toward the

accident . . ., [Defendant LaFave] gave verbal commands [to

Plaintiff] to stop.” (Id.; see also Docket Entry 26-1 at 3:41:25-

3:41:45 (recording Defendant LaFave’s testimony at the state motion

to suppress hearing that “[he] gave the vehicle a command to come

forward and they made a turn in a direction that [he] did not

command them to do”); Docket Entry 26-5 at 3 (setting forth

Defendant Monahan’s declaration that, “[b]ased on the vehicle’s

position and orientation, it appeared to [him] that

8

[Plaintiff] . . . was going to continue south on NC-5 toward the

accident”); Docket Entry 30-1 at 7 (memorializing Defendant

Monahan’s deposition testimony stating that “[Plaintiff] did not

follow the pattern [of other cars]”).) Taken “in the light most

favorable to [Plaintiff],” Henry, 652 F.3d at 531, even if

Defendant LaFave and Defendant Monahan had provided Plaintiff with

different instructions, Plaintiff does not dispute that he

disobeyed Defendant LaFave’s traffic instructions (compare Docket

Entry 26-8 at 10 (documenting Plaintiff’s deposition testimony that

he “saw an officer telling [him] to move forward and [he] saw an

officer telling [him] to turn”), with id. at 12 (admitting “I

turned left”)).

“[T]he probable cause standard . . . is a practical,

nontechnical conception,” Illinois v. Gates, 462 U.S. 213, 231

(1983) (internal quotation marks omitted), satisfied by an

officer’s observations of a traffic offense, see United States v.

Williams, 740 F.3d 308, 312 (4th Cir. 2014). As Plaintiff failed

to follow Defendant LaFave’s instructions, Defendant LaFave “had

probable cause to believe that [a] provision[] of the [North

Carolina] traffic code had been violated.” Whren, 517 U.S. at 810;

see also N.C. Gen. Stat. § 20-114.1(a) (“No person shall willfully

fail . . . to comply with any lawful order or direction of

any . . . traffic-control officer . . ., which order or direction

related to the control of traffic.). Accordingly, upon seeing

9

Plaintiff disobey his traffic order, Defendant LaFave did not

violate Plaintiff’s Fourth Amendment rights by stopping the

vehicle.3

In sum, “there is no genuine dispute as to any material fact

and [Defendant LaFave] is entitled to judgment as a matter of law,”

Fed. R. Civ. P. 56(a), regarding Plaintiff’s Fourth Amendment

individual-capacity claim and the Court will enter judgment for

Defendant LaFave on that claim.

2. Official Capacity Claim

Plaintiff’s official capacity claim against Defendant LaFave,

which constitutes a claim “against the governmental entity

employing [him],” Nivens v. Gilchrist, 444 F.3d 237, 249 (4th Cir.

2006), i.e., the Village of Pinehurst, falls short for an

additional reason. Specifically, “claims against the officers in

their official capacities are claims against the entities for which

3 Notably, Plaintiff has not shown that the record contains

any evidence that Defendant LaFave knew of any conflicting

instructions by Defendant Monahan that could have vitiated the

existence of probable cause. (See Docket Entry 30 at 2-4, 7-9.)

In his memorandum in opposition to the instant Motion, Plaintiff

states “Defendant LaFave acknowledged [there] was some confusion

regarding the directions given to [] Plaintiff” and cites minute

3:52 of the recording of the state motion to suppress hearing. Id.

at 3. However, per the recording, Defendant LaFave testified “Yes

it was” to a question posed to him by Plaintiff’s attorney asking

“if it was more like a confusion kind of thing.” (Docket Entry 26-

1 at 3:52.) That answer fails to establish that Defendant LaFave

knew at the time of the incident that Defendant Monahan had

provided contradictory or conflicting instructions to Plaintiff;

instead it reflects Defendant LaFave’s after-the-fact assessment of

Plaintiff’s decision to turn the wrong way.

10

the officers were acting. . . . [T]o establish liability on behalf

of the entity, it must be shown that the actions of the officers

were unconstitutional and were taken pursuant to a custom or policy

of the entity.” Giancola v. State of W. Va. Dep't of Pub. Safety,

830 F.2d 547, 550 (4th Cir. 1987). The Complaint alleges a Fourth

Amendment violation from the actions of Defendant LaFave (see

Docket Entry 2 at 4-5), but does not set out any factual

allegations showing that those actions resulted from any official

policy or custom of the Village of Pinehurst (or its Police

Department) (see id. at 1-8; see also Docket Entry 26-8 at 4-18

(lacking any such evidence)), and, as such, any official capacity

claim fails as a matter of law, see Mitchell v. Rountree, No.

1:16cv1352, 2018 WL 3626432, at *4 (M.D.N.C. July 30, 2018)

(recommending dismissal of Section 1983 official capacity claims

against police officers for the plaintiff’s failure to “identify a

municipal policy or custom that caused his injury”), recommendation

adopted, slip op. (M.D.N.C. Sept. 14, 2018).

Under these circumstances, the Court will grant the instant

Motion with respect to Plaintiff’s Section 1983 official-capacity

claim.

3. Collateral Estoppel

In the alternative, Defendant LaFave has established

entitlement to summary judgment on Plaintiff’s Fourth Amendment

claim under principles of collateral estoppel.

11

Collateral estoppel “operates to bar subsequent litigation of

those legal and factual issues common to both actions that were

actually and necessarily determined by a court of competent

jurisdiction in the first litigation.” In re Varat Enters., Inc.,

81 F.3d 1310, 1315 (4th Cir. 1996) (internal quotation marks

omitted). Moreover, “Congress has specifically required all

federal courts to give preclusive effect to state-court judgments

whenever the courts of the State from which the judgments emerged

would do so.” Allen v. McCurry, 449 U.S. 90, 96 (1980).

“In determining the preclusive effect of a state-court

judgment, the federal courts, must, as a matter of full faith and

credit, apply the forum state’s law of collateral estoppel.” In re

McNallen, 62 F.3d 619, 624 (4th Cir. 1995). In North Carolina,

collateral estoppel applies when:

(1) the issues are the same as those involved in the

prior action, (2) the issues have been raised and

actually litigated in the prior action, (3) the issues

were material and relevant to the disposition of the

prior action, and (4) the determination of the issues in

the prior action was necessary and essential to the

resulting judgment.

Sykes v. Blue Cross & Blue Shield of N.C., 372 N.C. 318, 325 (2019)

(internal brackets and ellipsis omitted). “A suppression hearing

in an earlier state criminal trial collaterally estops the

relitigation of the same issues in a [Section] 1983 action if the

elements of collateral estoppel are met.” Gray v. Farley, 13 F.3d

142, 146 (4th Cir. 1993).

12

In this case, the state court held a suppression and probable

cause hearing on July 8, 2020. (See Docket Entry 26-1.) At that

hearing, Defendants presented testimony and Plaintiff (through

counsel) cross examined Defendants. (See id. at 3:37-5:02.)

Plaintiff contends that “the issue[ of probable cause] w[as] never

‘actually litigated’ because the determination in the suppression

hearing was based only on the testimony of [] Defendants” (Docket

Entry 30 at 7) and “that [testimony] conflicted with [Defendants’]

incident reports and . . . depositions” (id.). However, Plaintiff

had a full and fair opportunity to present evidence and cross

examine Defendants at the hearing. (See Docket Entry 26-1 at 3:37-

5:02.) Further, the state court held that Defendant LaFave

lawfully stopped Plaintiff’s vehicle for failing to follow

Defendant LaFave’s traffic instructions. (See Docket Entry 26-1 at

4:11-4:12.)

Collateral estoppel principles thus provide an alternative

basis for entry of summary judgment against Plaintiff on his claim

under the Fourth Amendment.

B. State Law Claims

The Complaint also asserts state law claims against Defendants

for false imprisonment, assault and battery, IIED, and malicious

prosecution. (See Docket Entry 2 at 5-7.)4

4 The caption of the Complaint purports to bring claims

against Defendant LaFave and Defendant Monahan in their individual

(continued...)

13

1. False Imprisonment

“False imprisonment is the illegal restraint of a person

against his will. A restraint is illegal if it is not lawful or

consented to.” Marlowe v. Piner, 119 N.C. App. 125, 129 (1995)

(internal citation omitted). The Complaint alleges false

imprisonment against Defendants by contending that, “[a]fter an

unlawful stop, [Plaintiff] was not briefly detained, but was

ordered to exit his vehicle, searched and placed on the ground —

unfree to leave . . . [and later] placed in handcuffs while on the

roadside, restricting his movement and mobility.” (Docket Entry 2

at 5.)

The record reflects that, after stopping Plaintiff’s vehicle,

upon approach, Defendants LaFave and Monahan “noticed a strong odor

[of marijuana] coming from the vehicle.” (Docket Entry 26-5 at 4;

see also Docket Entry 26-4 at 5 (same).) Defendants LaFave and

4(...continued)

capacities, and “in the alternative, in [their] official

capacit[ies].” (Docket Entry 2 at 1 (italics omitted).) However,

for state law claims, Defendant LaFave and Defendant Monahan, “in

their official capacities, are generally immune from suit under the

doctrine of governmental immunity. That immunity is absolute

unless the [Village of Pinehurst] has consented to being sued or

otherwise waived its right to immunity.” Schlossberg v. Goins, 141

N.C. App. 436, 440 (2000); see also N.C. Gen. Stat. § 160A-485(a).

“[T]he record does not show that the [Village of Pinehurst] has

expressly consented to being sued,” and thus, Plaintiff’s state law

claims against Defendant LaFave and Defendant Monahan “may only be

maintained to the extent the [Village of Pinehurst] has waived its

governmental immunity.” Goins, 141 N.C. at 440. In this case, the

record lacks any evidence that establishes a waiver of governmental

immunity. Any official-capacity state-law claims against Defendant

LaFave and Defendant Monahan fail as a matter of law.

14

Monahan then “order[ed] the [vehicle] occupants to exit the vehicle

so it could be searched.” (Docket Entry 26-4 at 5; see also Docket

Entry 26-5 at 4 (setting out Defendant Monahan’s declaration that

he reported to Defendant LaFave that “[he] saw . . . marijuana in

the car”); Docket Entry 26-4 at 5 (setting out Defendant LaFave’s

declaration as follows: “[Defendant] Monahan told me that he saw

more marijuana in the vehicle. At that point, I believed that

there was probable cause to search the vehicle [and] I instructed

the occupants to exit the vehicle . . . so I could search the

[vehicle].”); Docket Entry 26-6 at 2 (setting out Defendant Earl’s

declaration that he “st[ood] with the three [vehicle] occupants

while [Defendant] LaFave searched the vehicle”).

As previously established, Defendant LaFave lawfully stopped

Plaintiff’s vehicle based on “probable cause to believe that [a]

provision[] of the [North Carolina] traffic code had been

violated,” Whren, 517 U.S. at 810. At that point, “a police

officer may . . . order the driver [and passengers] of a lawfully

stopped car to exit [the] vehicle.” Maryland v. Wilson, 519 U.S.

408, 410 (1997); see also Arizona v. Johnson, 555 U.S. 323, 331

(“[O]nce a motor vehicle has been lawfully detained for a traffic

violation, the police officers may order the driver to get out of

the vehicle . . . .”). Next, in North Carolina, “[a]n officer may

arrest without a warrant any person who the officer has probable

cause to believe[] has committed a felony[ or certain misdemeanors

15

outside of presence of the officer].” N.C. Gen. Stat.

§ 15A-401(b)(2)(a)-(e). “Probable cause for a warrantless arrest

is defined as facts and circumstances within the officer’s

knowledge that are sufficient to warrant a prudent person, or one

of reasonable caution, in believing, in that circumstances shown,

that the suspect has committed, is committing, or is about to

commit an offense.” United States v. Coleman, 100 F. App’x 202,

204 (4th Cir. 2004) (internal quotation marks omitted). The Fourth

Circuit “ha[s] repeatedly held that the odor of marijuana alone can

provide probable cause to believe that marijuana is present in a

particular place.” United States v. Price, 717 F. App’x 241, 244

(4th Cir. 2018) (internal quotation marks omitted). “Thus, if an

officer smells the odor of marijuana in circumstances where the

officer can localize its source to a person, the officer has

probable cause to believe that the person has committed or is

committing the crime of possession of marijuana.” Id. (internal

quotation marks omitted).

In this case, not only did Defendants LaFave and Monahan

detect the odor of marijuana, but, after stopping the vehicle, in

response to Defendant LaFave asking “Where’s the weed?” (Docket

Entry 2 at 3), “Plaintiff immediately provided [Defendant LaFave]

a container with small bits of an unknown substance inside of it”

(id.). Further, during the search of the vehicle, Defendant LaFave

recovered “a clear mason jar containing three individually wrapped

16

clear plastic bags of what appeared to be marijuana, a digital

scale . . . and a 9mm Taurus PT11 model G2 handgun with a factory

magazine and 8 rounds of ammunition.” (Docket Entry 26-4 at 6.)

“[Plaintiff] was [subsequently] placed under arrest.” (Docket

Entry 2 at 3.)

Accordingly, the record evidence, taken in a light most

favorable to Plaintiff, establishes that Defendants lawfully

stopped Plaintiff’s vehicle, directed Plaintiff to exit the

vehicle, and arrested Plaintiff after the search. Put another way,

“[b]ecause probable cause existed justifying [P]laintiff’s

[detention and] arrest, [P]laintiff cannot maintain any claims

against Defendants for . . . false imprisonment.” Rowell v. City

of Hickory, 5:97cv75, 2008 WL 11429435, at *9 (W.D.N.C. June 20,

2008); see also Wilkerson v. Hester, 114 F. Supp.2d 446, 451

(W.D.N.C. 2000) (noting that “[t]he fact that the [p]laintiff was

later acquitted of some of the charges made subsequent to his

arrest does not alter the determination of whether probable cause

existed at the time thereof”). As a result, the Court will grant

the instant Motion with respect to Plaintiff’s false imprisonment

claim.

2. Assault and Battery

Next, the Complaint asserts assault and battery claim(s)

against Defendant Monahan and Defendant Earl, on the grounds that

“Defendant[] Monahan’s behavior of motioning [Plaintiff] to exit

17

the vehicle with [Defendant Monahan’s] service weapon placed

[Plaintiff] in fear of imminent harm” and “Defendant Earl’s

behavior of unlawfully handcuffing and making [Plaintiff] sit on

the cold ground for an extended period of time placed [Plaintiff]

in fear of imminent harm.” (Docket Entry 2 at 6.)

“[A] civil action for damages for assault and battery is

available at common law against one who, for the accomplishment of

a legitimate purpose, such as justifiable arrest, uses force which

is excessive under the given circumstances.” Myrick v. Cooley, 91

N.C. App. 209, 215 (1988). “Under the common law, a law

enforcement officer has the right, in making an arrest and securing

control of an offender, to use only such force as may be reasonably

necessary to overcome any resistance and properly discharge his

duties.” Id. “[Officers] may not act maliciously in the wanton

abuse of [their] authority or use unnecessary and excessive force.”

Todd v. Creech, 23 N.C. App. 537, 539 (1974).

Here, the record evidence shows “that [Defendant Monahan] did

not physically participate in the arrest but merely [directed

Plaintiff to exit the vehicle while holding his gun towards the

ground],” Myrick, 91 N.C. App. at 215. (See Docket Entry 26-5 at

5 (setting out Defendant Monahan’s declaration that “[he] drew

[his] weapon briefly and pointed it at the ground”).) Then, after

Defendant LaFave recovered apparent narcotics and a firearm from

the vehicle (see Docket Entry 26-4 at 6), Defendant Earl

18

“handcuff[ed Plaintiff] and ma[de] him to sit on the [side of the

road]” (Docket Entry 2 at 6; see also Docket Entry 26-6 at 3

(setting out Defendant Earl’s declaration that “[he] then placed

[Plaintiff] in handcuffs . . . and [Defendant] Monahan then

instructed [Plaintiff] to sit on the ground”)). “[T]his evidence

is insufficient to support any claims against [Defendant Monahan

and Defendant Earl] of excessive use of force,” Myrick, 91 N.C.

App. at 215, as they did “not act maliciously in the wanton abuse

of [their] authority or use unnecessary and excessive force,” Todd,

23 N.C. App. at 539.

The Court therefore will grant the instant Motion with respect

to Plaintiff’s assault and battery claim(s).

3. IIED

The Complaint goes on to allege a claim of IIED against all

Defendants on the grounds that “[Defendants] engaged in extreme and

outrageous conduct by using a service weapon to give directives to

[Plaintiff] after [the traffic stop]” and “[Defendants] intended to

cause severe distress when they told [Plaintiff] he would receive

a citation, yet, ultimately placed him under arrest.” (Docket

Entry 2 at 6.) According to the Complaint, due to Defendants’

actions, Plaintiff “has suffered from bouts of depression,

hopelessness, insomnia and anxiety.” (Id.)

To prevail on a claim for IIED, Plaintiff must show

“(1) extreme and outrageous conduct, (2) which is intended to cause

19

and does cause[,] (3) severe emotional distress to another.”

Dickens v. Puryear, 302 N.C. 437, 449 (1981). Further, “[t]he tort

may also exist where [Defendants’] actions indicate a reckless

indifference to the likelihood that they will cause severe

emotional distress.” Hogan v. Forsyth Country Club Co., 79 N.C.

App. 483, 488 (1986). “Stated differently, a defendant is liable

for IIED when, ‘he desires to inflict serious severe emotional

distress or knows that such distress is certain, or substantially

certain, to result from his conduct or where he acts recklessly in

deliberate disregard of a high degree of probability that the

emotional distress will follow and the mental distress does in fact

follow.’” Clark v. Clark, 280 N.C. App. 403, 415-16 (2021)

(quoting Dickens, 302 N.C. at 449). “The initial determination of

whether conduct is extreme or outrageous is a question of law for

the court.” Norton v. Scotland Mem’l Hosp., Inc., 250 N.C. App.

392, 398 (2016) (internal brackets omitted).

“Extreme and outrageous conduct is defined as conduct that is

‘so outrageous in character, and so extreme in degree, as to go

beyond all possible bounds of decency, and to be regarded as

atrocious, and utterly intolerable in a civilized community.’” Id.

at 397 (quoting Smith-Price v. Charter Behav. Health Sys., 164 N.C.

App. 349, 354 (2004)). North Carolina courts “have set a high

threshold for finding that conducts meets th[is] standard.” Id. at

398 (internal quotation marks omitted). “[O]n the issue of what

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constitutes extreme and outrageous conduct,” Hensley v. Suttles,

167 F. Supp. 3d 753, at 767-68 (W.D.N.C. 2016), in other cases, the

facts recounted “exemplify the atrocious and utterly intolerable

acts necessary to satisfy the [standard],” id. at 768. See, e.g.,

Dickens, 302 N.C. at 439, 455 (finding extreme and outrageous

behavior where the defendants, inter alia, “handcuffed [the]

plaintiff,” “beat him into semi-consciousness,” “cut[ the]

plaintiff’s hair [with a knife while] threaten[ing the] plaintiff

with castration,” and, “within [the] plaintiff’s hearing, discussed

and took votes on whether [the] plaintiff should be killed or

castrated”); Watson v. Dixon, 130 N.C. App. 47, 53 (1998) (finding

extreme and outrageous behavior where the defendant frightened and

humiliated the plaintiff with cruel practical jokes, made obscene

comments and indecent physical suggestions to her, and threatened

her personal safety).

“In other words, conduct is deemed outrageous when a defendant

intends, knows, or deliberately disregards the high degree of

probability that his extreme threats and actions will strike fear

and anguish into the heart of the victim.” Hensley, 167 F. Supp.

at 768 (internal quotation marks omitted). The record in this

case, taken in a light most favorable to Plaintiff, fails as a

matter of law to establish such extreme and outrageous conduct.

Plaintiff has provided no evidence that Defendants sought to

threaten Plaintiff’s safety or subject him to harassment or harm.

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(See Docket Entry 2 at 1-8; Docket Entry 30-1 at 5-7; Docket Entry

30-2 at 5.) Defendants did not engage in any behavior “in a

particularly traumatizing manner with the intent to inflict severe

emotional distress.” Hensley, 167 F. Supp. at 768.

Based on those considerations, Plaintiff’s IIED claim fails as

a matter of law.

4. Malicious Prosecution

Finally, the Complaint alleges malicious prosecution against

Defendants because they “knowingly initiated a false felony charge

against [Plaintiff].” (Docket Entry 2 at 7.) In that regard, the

Complaint alleges that Defendants “provided information” to the

state prosecutor “maliciously because they knew or should have

known that [Plaintiff] was not responsible for the marijuana, gun

or other items [found] in the vehicle” and that “Defendants . . .

did not have probable cause to believe a crime was committed or

that [Plaintiff] committed a crime.” (Id.)

Under North Carolina law, Plaintiff must establish,

“(1) [ D]efendant[s] initiated the earlier proceeding; (2) malice

on the part of [ D]efendant[s] in doing so; (3) lack of probable

cause for the initiation of the earlier proceeding; and

(4) termination of the earlier proceeding in favor of [P]laintiff.”

Nguyen v. Burgerbusters, Inc., 182 N.C. App. 447, 450 (2007).

“Malice can be inferred from the want of probable cause alone.”

Moore v. Evans, 124 N.C. App. 35, 42 (1996) (internal brackets

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omitted). “[I]t is undisputed that [the actions of Defendants]

initiated the criminal prosecution against [Plaintiff] and that the

prosecution ended with a dismissal of the charges against him.”

Id. Accordingly, “the only issue as to [Plaintiff’s] claim for

malicious prosecution is whether [Defendants] had probable cause to

initial the criminal prosecution against him.” Id.

As previously established, Defendant LaFave possessed probable

cause to stop Plaintiff’s vehicle due to a traffic instruction

violation. Defendant LaFave and Defendant Monahan further

possessed probable cause to continue the stop and to search the

vehicle due to, inter alia, Plaintiff handing Defendant LaFave a

medicine jar containing an unknown substance in response to a

question asking for the location of marijuana after they detected

the smell of marijuana. Additionally, probable cause existed to

arrest and charge Plaintiff due to the suspected marijuana, scale,

and firearm found in the vehicle Plaintiff drove. See United

States v. Singleton, 441 F.3d 290, 296 (4th Cir. 2006) (“A person

has constructive possession over contraband when he

has . . . control over . . . [the] vehicle in which it [i]s

concealed.”); United States v. Armstrong, 187 F.3d 392, 396 (4th

Cir. 1999) (same); see also United States v. Myers, 986 F.3d 453,

454 (4th Cir. 2021) (“When a law enforcement officer finds illegal

drugs in an automobile that the officer has legally stopped and

searched . . ., it is entirely reasonable for the officer

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to . . . arrest [the vehicle occupants] on probable cause that they

are committing a crime.” (internal quotation marks omitted)).

Simply put, taken in the light most favorable to Plaintiff, his

claim for malicious prosecution cannot survive summary judgment.

CONCLUSION

Even when viewed in Plaintiff’s favor, the record establishes

that all claims against Defendants fail as a matter of law.

IT IS THEREFORE ORDERED that the instant Motion (Docket Entry

26) be granted and that summary judgment be entered in favor of

Defendants on all of Plaintiff’s claims against them.

/s/ L. Patrick Auld

L. Patrick Auld

United States Magistrate Judge

September 16, 2024

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