Pickens v. Hendricks

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF NORTH CAROLINA

ASHEVILLE DIVISION

CIVIL CASE NO. 1:21-cv-00030-MR

BRANDON PICKENS, )

)

Plaintiff, )

) MEMORANDUM OF

vs. ) DECISION AND ORDER

)

STEVEN HENDRICKS, et al., )

)

Defendants. )

_______________________________ )

THIS MATTER is before the Court on Defendants Quentin Miller and

Western Surety’s Motion for Summary Judgment [Doc. 176]; Plaintiff

Brandon Pickens’ Motion for Summary Judgment [Doc. 228]; and J.D.

Lambert, Jeff May, and Katherine Lewis’s Motion for Partial Summary

Judgment [Doc. 245].

I. BACKGROUND

On January 19, 2021, the Plaintiff Brandon Pickens (“Pickens” or

simply, “the Plaintiff”), filed this pro se civil rights action pursuant to 42 U.S.C.

§ 1983 addressing a January 20, 2018 traffic stop and strip search involving

the Plaintiff and his passenger, Marcus Hyatt. At the time he filed this action,

the Plaintiff was incarcerated on habitual felon and drug charges that are

unrelated to the January 20, 2018 incidents.1

The unverified Complaint passed initial review on the Plaintiff’s § 1983

claims and the Court exercised supplemental jurisdiction over Plaintiff’s

related North Carolina claims against Buncombe County Sheriff’s Office

(“BCSO”) deputies J.D. Lambert, Jeff May, and Katherine Lewis (the “Deputy

Defendants”); against Quentin Miller in his official capacity as Buncombe

County Sheriff; and for recovery on BCSO’s surety bond against Western

Surety Company (“Western”).2 [Docs. 1, 13]. The Plaintiff seeks actual,

compensatory, and punitive damages; a jury trial; and other relief that the

Court deems just and proper. [Doc. 1 at 9].

On August 27, 2019, more than a year and four months before the

Plaintiff filed the instant lawsuit, Marcus Hyatt filed a counseled civil rights

action in this Court addressing the incidents of January 20, 2018.3 See Case

No. 1:19-cv-250-MR-WCM (“Hyatt”). Hyatt asserted claims for false

imprisonment, false arrest, and assault and battery under North Carolina law

1 The Plaintiff has now been released. [See Doc. 266 (Notice of Change of Address)].

2 The Complaint also passed initial review against Asheville Police Officer Steven

Hendricks, but the claims against him were later dismissed with prejudice. [Docs. 25, 34].

3 Hyatt’s girlfriend, Ashley Barrett, was detained in a separate vehicle stop on January 20,

2018, as part of the same investigation. Ms. Barrett was also a plaintiff in the Hyatt civil

rights action.

against the Deputy Defendants; claims under § 1983 for unreasonable

sexually invasive search against Defendants May and Lambert; claims under

§ 1983 for unlawful search and seizure against the Deputy Defendants; and

a claim for action under the Sheriff’s Bond against Sheriff Miller and Western.

Following a multi-day trial, a jury reached a unanimous verdict on

several questions, including:

Did Defendant Lambert see Brandon Pickens’ vehicle change

lanes without signaling and affect the operation of another

vehicle?

YES

Did Defendant Lambert have reasonable suspicion to stop

Brandon Pickens’ vehicle?

YES

Did Defendant Lambert’s canine alert to Brandon Pickens’

vehicle?

YES

…

Did Defendant May smell crack cocaine on … Hyatt?

NO

Did Defendant May find a substance in Brandon Pickens’ vehicle

that produced a positive field test for cocaine?

NO….

[Hyatt Docs. 132, 134]. The jury deadlocked on several other questions

which the Hyatt parties agreed that the Court could resolve without a jury.

Subsequently, the Court found inter alia that Defendant May included

materially false statements (i.e., that he smelled the odor of crack cocaine

and that a substance found inside Pickens’ vehicle field-tested positive for

cocaine) in a warrant application to strip search Hyatt; that May conducted

the strip search in a manner that violated Hyatt’s right to be free from an

unreasonable sexually invasive search; and that May committed these acts

outside the scope of his official authority. [See Hyatt Doc. 142]. The Court

found that Hyatt should recover $50,000 from Defendant May on his § 1983

claims for unreasonable search and seizure, and on his North Carolina

claims for false arrest/ false imprisonment, and assault and battery. [Id.].

Hyatt’s other claims, including his claims on the Sheriff’s Bond, were

dismissed with prejudice. [Id.]. A Judgment was entered the same day.

[Hyatt Doc. 143]. While post-judgment motions were pending in Hyatt, the

Plaintiff attempted to intervene in the case, which was denied. [See, e.g.,

Hyatt Docs. 152, 159].

The instant case was stayed while Hyatt was being resolved. [See

Docs. 50, 143]. Once the stay was lifted, the parties filed cross-Motions for

Summary Judgment. [Doc. 176: Miller/Western MSJ; Doc. 228: Plaintiff’s

MSJ; Doc. 245: BCSO Partial MSJ.]. Thereafter, the Court entered Orders

in accordance with Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975),

advising the Plaintiff of the requirements for filing responses to the summary

judgment motions and of the manner in which evidence could be submitted

to the Court. [Docs. 188, 254: Roseboro Orders]. The parties filed

Responses and supporting materials4 [see Docs. 216, 251, 258, 259:

Plaintiff’s Resp.; Doc. 248: Miller/Western Resp.; Doc. 249: BCSO Resp.]

and Replies5 [Doc. 260: Miller/Western Reply; Doc. 256: Plaintiff’s Reply].

Having been fully briefed, these matters are ripe for disposition.

II. STANDARD OF REVIEW

Summary judgment shall be granted “if the movant shows that there is

no genuine dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a). A factual dispute is

genuine “if the evidence is such that a reasonable jury could return a verdict

for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986). A fact is material only if it might affect the outcome of the suit under

governing law. Id.

The movant has the “initial responsibility of informing the district court

of the basis for its motion, and identifying those portions of the pleadings,

4 The Court has considered relevant portions of the record, including the Plaintiff’s verified

filings, save for those which have been stricken. [See, e.g., Doc. 181 (unauthorized

Amended Complaint), Doc. 210 (Response and Declaration that were that were stricken

at Plaintiff’s request)].

5 The Deputy Defendants did not file a reply, and the time to do so has expired.

depositions, answers to interrogatories, and admissions on file, together with

the affidavits, if any, which it believes demonstrate the absence of a genuine

issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)

(internal citations omitted).

Once this initial burden is met, the burden shifts to the nonmoving

party. The nonmoving party “must set forth specific facts showing that there

is a genuine issue for trial.” Id. at 322 n.3. The nonmoving party may not

rely upon mere allegations or denials of allegations in his pleadings to defeat

a motion for summary judgment. Id. at 324. Rather, the nonmoving party

must oppose a proper summary judgment motion with citation to

“depositions, documents, electronically stored information, affidavits or

declarations, stipulations …, admissions, interrogatory answers, or other

materials” in the record. See id.; Fed. R. Civ. P. 56(c)(1)(a). Namely, the

nonmoving party must present sufficient evidence from which “a reasonable

jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at

248. To that end, only evidence admissible at trial may be considered by the

Court on summary judgment. Kennedy v. Joy Technologies, Inc., 269 F.

App’x 302, 308 (4th Cir. 2008) (citation omitted).

When ruling on a summary judgment motion, a court must view the

evidence and any inferences from the evidence in the light most favorable to

the nonmoving party. Anderson, 477 U.S. at 255. Facts, however, “must be

viewed in the light most favorable to the nonmoving party only if there is a

‘genuine’ dispute as to those facts.” Scott v. Harris, 550 U.S. 372, 380

(2007). As the Supreme Court has emphasized,

“[w]hen the moving party has carried its burden under

Rule 56(c), the opponent must do more than simply

show there is some metaphysical doubt as to the

material facts …. Where the record taken as a whole

could not lead a rational trier of fact to find for the

nonmoving party, there is no ‘genuine issue for trial.’”

Matsushita Elec. Industrial Co. v. Zenith Radio Corp.,

475 U.S. 574, 586-87, 106 S. Ct. 1348 (1986)

(footnote omitted). “[T]he 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 genuine issue of material fact.” Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 247-28, 106 S. Ct.

2505 (1986). When opposing parties tell two

different stories, one of which is blatantly

contradicted by the record, so that no reasonable jury

could believe it, a court should not adopt that version

of the facts for purposes of ruling on a motion for

summary judgment.

Scott, 550 U.S. at 380.

III. FACTUAL BACKGROUND

The relevant forecast of evidence, viewed in the light most favorable to

the Plaintiff, shows the following.6

Prior to January 20, 2018, Marcus Hyatt and Ashley Barrett lived

together in Candler, North Carolina (the “Residence”), in what law

enforcement considered to be a high-crime area. [Doc. 245-3: May Tr. at 4].

Law enforcement received seven complaints of drug activity within a half-

mile of the Residence during the months leading up to January 2018. [Id. at

4-5]. Sometime prior to January 20, 2018, an individual contacted the BCSO

and spoke to Defendant May about increased vehicle and foot traffic at the

Residence. [Id. at 5]. In response to that tip, BCSO members began

surveilling the Residence to determine whether any illegal activity appeared

to be occurring there. [Id. at 5-6]. Defendant May observed a red car parked

outside the Residence; upon investigation, he determined that the license

plate on the car had been stolen. [Id. at 8-10]. May also learned that Hyatt

had taken the red car for repairs, and that he was once observed sitting in

the vehicle for about a minute when it was parked outside his Residence.

[Id.].

6 The Court highlights the relevant forecast of evidence and the factual discrepancies

between the parties’ accounts of the incidents. As for the Plaintiff’s Motion for Summary

Judgment, the forecasts are taken in the light most favorable to the Defendants.

On January 20, 2018, Defendant May was notified of a new car parked

outside the Residence. [Id. at 11]. May ran the new car’s tag information in

his records management system (“RMS”) and learned that the car was

registered to the Plaintiff, a “known drug dealer” with over 70 prior charges

in Buncombe County including “habitual felon status, a VCI [Violent Crimes

Initiative] offender notification,7 prior charges for robbery, trafficking,

possession with intent, cocaine, possession of cocaine, assault, resist/delay

or obstruct officers.” [Id. at 11]. Defendant May notified the rest of the

investigative team of the foregoing, and Defendants Lambert and May drove

to the Residence to conduct additional surveillance. [Id. at 12-13].

The Plaintiff and Hyatt left the Residence in the Plaintiff’s vehicle and

headed towards Asheville. [Doc. 230: Plaintiff’s Decl. at ¶ 1]. Defendants

May and Lambert followed, with May in a marked patrol car and Lambert in

an unmarked car. [Doc. 245-3: May Tr. at 14, 16]. As soon as May’s patrol

car turned onto the road behind the Plaintiff’s car, the Plaintiff slammed on

the brakes. [Id. at 14-16]. May turned off the road. [Id.]. Lambert initiated a

traffic stop of the Plaintiff’s car at a gas station at approximately 12:30 p.m.

[Doc. 230: Plaintiff’s Decl. at ¶ 2; Doc. 167-5: Lambert First Interrog. 3]. The

7 A VCI notification informs law enforcement of individuals who have committed violent

assaults. [Doc. 245-3: May Tr. at 12].

evidence is conflicting as to whether the Plaintiff commited any traffic

violation or offense on January 20, 2018.8 [Doc. 104-1: Plaintiff’s Aff. at ¶ 6;

Doc. 230: Plaintiff’s Decl. at ¶ 8]. Lambert’s vehicle was not equipped with

a dashcam and his body worn camera (“BWC”) was not activated. [Doc.

167-5: Lambert First Interrog. 13]. Even if the BWC were activated, it would

have been blocked by the dashboard of Lambert’s car. [Id.].

Defendants May and Lewis joined Lambert at the gas station after the

traffic stop. [Doc. 230: Plaintiff’s Decl. at ¶ 3]. Lewis looked up the Plaintiff

and Hyatt in her RMS and she saw “multiple priors” and drug investigations.

[Doc. 245-4: Lewis Tr. at 14-15]. Lewis stood at the passenger side of the

Plaintiff’s car where Hyatt was sitting, and Lambert was at the driver’s side.

[Id. at 14]. Lewis observed Hyatt “nervously and rapidly texting on his cell

phone.” [Doc. 167-4: Lewis Second Interrog. 14].

Lambert deployed his drug-detecting dog around the exterior of the

Plaintiff’s car. [Doc. 230: Plaintiff’s Ex at 8]. The Plaintiff watched the dog

and saw no “conspicuous indication” of an alert, although the dog was

admittedly sometimes out of the Plaintiff’s sight. [Doc. 245-2: Depo. Tr. at 1-

8 Defendant Lambert states that he saw the Plaintiff’s car make multiple unsafe lane

changes without signaling, and pull out directly in front of another vehicle, and that he

also stopped the Plaintiff’s car for these infractions. [Doc. 167-5: Lambert First Interrog.

3]. However, as the Plaintiff denies committing any traffic violations, and because there

is no dashcam or body camera evidence depicting the Plaintiff’s driving, the Court must

accept the Plaintiff’s version of the facts as true.

3]. Lambert saw the dog alert to the passenger door seam and to the driver’s

door handle by rapidly breathing through his nose in those areas. [Doc. 230:

Plaintiff’s Ex. at 12 (Second RFA 18); Doc. 245-5: Lambert Tr. at 79; see Doc.

245-1: Partial MSJ Memo at 13]. The dog did not perform its final trained

response (sitting or lying down) at that time. [Doc. 230: Plaintiff’s Ex. at 8

(First RFA 14)].

The Deputy Defendants detained the Plaintiff and Hyatt and

collectively searched the Plaintiff’s vehicle. [Id. at 6-7 (First RFA 7)].

Defendant Lambert’s dog alerted to the interior of Plaintiff’s car and

performed the final trained response by lying down in the front passenger

seat. [Id. at 12 (Second RFA 18)].

At some point during the detention, the Plaintiff was patted down for

weapons, but none were found. [Doc. 230: Plaintiff’s Decl. at ¶ 4]. The

Plaintiff was handcuffed during the vehicle search. [Doc. 245-4: Lewis Tr. at

19; Doc. 230: Plaintiff’s Ex at 12 (Second RFA 20)]. Defendant Lewis felt

that it would not have been safe for the Plaintiff to be released from handcuffs

during the vehicle search, as she observed Hyatt and the Plaintiff engaging

in several “preflight indicators,” such as looking nervous, shaking, “viciously

9 The transcript of Lambert’s trial testimony is uncertifiable because the court reporter is

deceased.

texting,” looking at places where they might run, bending over and tying

shoes, pulling up pants and tightening belts. [Doc. 167-3: Lewis First

Interrog. 10; see also Doc. 167-4: Lewis Second Interrog. 12, 14]. Lewis

was certain that there was a high probability that Plaintiff and Hyatt would

flee if she did not take precautions. [Doc. 245-4: Lewis Tr. at 18-19].

Officers began the process for obtaining a warrant to search the

Plaintiff and Hyatt. The warrant application includes the following

information:

While searching the vehicle Deputy May recovered a substance

he thought to be cocaine. May utilized a field test kit to test the

substance and the substance tested positive for cocaine.

…

While searching the person of Hyatt Deputy May stated [that] he

smelled the odor he knows to be cocaine base crack emitting

from Hyatt’s person.

[Doc. 230: Plaintiff’s Ex at 24-25 (Warrant Application)] (paragraph numbers

omitted). May’s statements that he smelled crack on Hyatt and that he found

a substance in Plaintiff’s vehicle that field-tested positive for cocaine are

false.10 [Doc. 63: Plaintiff’s Verified Motion at ¶ 9; Hyatt Doc. 132: First

Verdict Sheet at 3].

10 These facts were found by the jury to be false in the Hyatt trial.

A warrant was issued to search the Plaintiff at 4:00 p.m. [Doc. 230:

Plaintiff’s Ex. at 19 (Warrant)]. Defendant May and BCSO Sergeant Stockton

escorted the Plaintiff into the gas station’s convenience store bathroom and

strip searched him at 4:05 p.m. [Doc. 230: Plaintiff’s Decl. at ¶ 5]. The

officers did not discover any drugs or other contraband on the Plaintiff’s

person. [Id. at ¶ 3]. The Plaintiff was then allowed to leave, roughly 3 ½

hours after the initial stop. [Id. at ¶ 7]. Neither the Plaintiff nor Hyatt was

charged with a drug offense as a result of the traffic stop. [Id. at ¶ 3].

However, Defendant May gave the Plaintiff a traffic citation for committing

the following infractions at 2:00 p.m. on January 20, 2018:

OPERATE A MOTOR VEHICLE ON A STREET OR HIGHWAY

BY FAILING TO SEE BEFORE TURNING FROM A DIRECT

LINE THAT SUCH MOVEMENT COULD BE MADE IN SAFETY.

NOT USING A TURN SIGNAL FOR THREE DIFFRENT [sic]

LANE CHANGES, ONE OF WHICH WAS MADE IN FRONT OF

ANOTHER VEHICLE. (G.S. 20-154)

[Id. at ¶ 7; Doc. 230: Plaintiff’s Ex at 26 (Citation)]. The Plaintiff pleaded not

guilty and told the District Attorney that he had been detained by officers at

the time when the infractions allegedly occurred. [Doc. 230: Plaintiff’s Decl.

at ¶ 9]. The District Attorney subsequently dismissed the traffic citation. [Id.

at ¶ 10; see Doc. 230: Plaintiff’s Ex. at 27].

Jack Van Duncan was the Buncombe County Sheriff between

December 4, 2006 and November 30, 2018. [Doc. 176-2: Duncan Decl. at

¶ 1]. He was responsible for overseeing law enforcement operations,

personnel matters, and policies for the BCSO. [Id.]. While Duncan was

Sheriff, all sworn deputy sheriffs were required to successfully complete the

NC Basic Law Enforcement Training (“BLET”) curriculum promulgated by the

North Carolina Sheriff’s Education and Training Standards Commission. [Id.

at ¶ 4]. All sworn deputies also completed annual in-service training

mandated by the Commission. [Id. at ¶ 5]. The Deputy Defendants had

completed BLET and were up-to-date on their annual in-service training on

January 20, 2018. [Id. at ¶¶ 6-7].

Sheriff Duncan adopted numerous policies regarding law enforcement

operations to ensure compliance with federal and state laws and to provide

guidance when dealing with difficult situations. [Id. at ¶ 8]. These policies

address, inter alia: BWCs [Doc. 176-3]; vehicle stops [Doc. 176-4]; searches

[Doc. 176-5]; transporting prisoners [Doc. 176-6]; and K9 operations [Doc.

176-7]. All sworn deputies were required to review the policies and to follow

them; failure to do so could result in discipline, including termination. [Doc.

176-2: Duncan Decl. at ¶ 9]. On January 20, 2018, there was no policy,

custom or practice within the BCSO that permitted deputy sheriffs to violate

the constitutional rights of any person, and Duncan approved no such policy

while he was Sheriff. [Id. at ¶ 16]. Duncan was not aware of a problem

involving deputies making traffic stops without reasonable suspicion and

searches of individuals without probable cause except as authorized by

Policy regarding Terry11 searches and consent searches. [Id. at ¶ 15].

On January 20, 2018, a $20,000 Sheriff’s Bond with Western was in

effect. [Doc. 176-8: Houston Decl. at ¶¶ 4-5]. Buncombe County additionally

purchased law enforcement liability coverage for wrongful acts by BCSO with

a retained limit of $500,000. [Id. at ¶¶ 10, 13-14; see Doc. 176-10]. BCSO

has not waived governmental immunity for state claims for a judgment

exceeding $20,000 and under $500,000.01. [Doc. 176-8: Houston Decl. at

¶ 19].

The Plaintiff and Hyatt complained to BCSO about the January 20,

2018 incidents. [Doc. 249-2: Plaintiff’s Depo. at 5-6]. A BCSO administrative

investigation found no policy violations or illegal activity by any BCSO

employees. [Doc. 216-1 (March 13, 2018 Hilliard Letter)]. The Plaintiff and

Hyatt then considered suing in federal court. The Plaintiff was contemplated

as a plaintiff in the Hyatt case; however, Hyatt chose to proceed without him

due to concerns that the Plaintiff’s drug involvement and incarceration could

harm Hyatt’s case. [Doc. 249-3: Hyatt Depo. at 5-6]. The Plaintiff therefore

filed this action separately and pro se.

11 Terry v. Ohio, 392 U.S. 1 (1968).

IV. DISCUSSION

A. Deputy Defendants’ Motion for Partial Summary Judgment

The Plaintiff brings claims against the Deputy Defendants under §

1983 for violations of his Fourth Amendment rights, assault and battery, false

arrest and false imprisonment, and trespass to property with regard to the

traffic stop, his detention, the searches of the Plaintiff’s vehicle and personal

property, and ultimately his strip search. [Doc. 1]. The Deputy Defendants

move for summary judgment on all of these claims except for those arising

out of the strip search, i.e., whether the strip search was justified, whether it

was conducted in a reasonable manner, and whether the Plaintiff is entitled

to damages arising from it. [Doc. 245-1 at 2].

The Deputy Defendants first argue that the traffic stop of Plaintiff’s car

was justified – independent of the disputed traffic infractions – by: (1) a

reasonable suspicion of drug activity; and (2) probable cause to believe that

an occupant of the vehicle was in possession of stolen property, i.e., the red

car. [Doc. 245-1: Partial MSJ Memo at 2]. They further argue that only

Defendant Lambert, and not Defendants May and Lewis, were involved in

the initial stop of the Plaintiff’s vehicle.

A traffic stop constitutes a seizure under the Fourth Amendment and

must be justified by reasonable suspicion of criminal activity or some other

exception to the generally applicable warrant requirement. United States v.

Feliciana, 974 F.3d 519, 522 (4th Cir. 2020). “[A] police officer can,

consistent with the Fourth Amendment, conduct a brief, investigative stop

(i.e., a Terry stop) predicated on reasonable, articulable suspicion that

criminal activity may be afoot.” Milla v. Brown, 109 F.4th 222 (4th Cir. 2024)

(internal quotations and citations omitted). An officer with reasonable

suspicion has “a particularized and objective basis for suspecting the

particular person stopped of criminal activity.” Kansas v. Glover, 589 U.S.

376, 380 (2020) (citing United States v. Cortez, 449 U.S. 411, 417-18

(1981)). Reasonable suspicion is a “commonsense, nontechnical” standard

that relies on the judgment of experienced law enforcement officers, “not

legal technicians.” Ornelas v. United States, 517 U.S. 690, 695 (1996)

(citation and internal quotation marks omitted). To support a finding of

reasonable suspicion, the detaining officer must “either articulate why a

particular behavior is suspicious or logically demonstrate, given the

surrounding circumstances, that the behavior is likely to be indicative of

some more sinister activity than may appear at first glance.” United States

v. Foster, 634 F.3d 243, 248 (4th Cir. 2011). Accordingly, “an officer’s

articulated facts must in their totality serve to eliminate a substantial portion

of innocent travelers before reasonable suspicion will exist.” United States

v. McCoy, 513 F.3d 405, 413 (4th Cir. 2008). Courts look to the totality of

the circumstances in determining whether an officer had reasonable

suspicion of criminal activity. United States v. Arvizu, 534 U.S. 266, 273

(2002). When considering the totality of the circumstances, the Court “must

not overlook facts that tend to dispel reasonable suspicion.” United States

v. Drakeford, 992 F.3d 255, 258 (4th Cir. 2021).

An arrest is a seizure under the Fourth Amendment, and such a seizure

is reasonable only if based on probable cause. Wilson v. Kittoe, 337 F.3d

392, 398 (4th Cir. 2003). Probable cause requires a fair probability that

contraband or evidence of a crime will be found in a particular place. Illinois

v. Gates, 462 U.S. 213, 238 (1983). Whether probable cause exists must be

determined “in the light of all of the surrounding circumstances.” Porterfield

v. Lott, 156 F.3d 563, 569 (4th Cir. 1998).

Here, the Deputy Defendants have not provided any concrete

indication that the Plaintiff or Hyatt were engaged in criminal activity.

Although the deputies had received a tip about increased foot traffic and

unfamiliar vehicles at the residence, that tip provided no additional

indications of drug trafficking, such as the identity of those visitors, the length

of the stops at the Residence, or the presence of a drug odor. United States

v. Velazco-Duranzo, 372 F.Supp.2d 520, 529 (D. Ariz. 2005) (explaining that

police officers lacked reasonable suspicion based on a tip from neighbors

who “reported seeing only three or four different vehicles, and the police had

no information as to whether the people coming and going were residents,

family members, frequent visitors, or strangers.”). The Plaintiff’s application

of his brakes upon seeing a marked patrol car pull behind him also is no

indication of criminal activity, because that conduct is common among the

general law-abiding public. See McCoy, 513 F.3d at 413; see also United

States v. Massenburg, 654 F.3d 480, 491 (4th Cir. 2011) (explaining that if

“the ordinary response of the innocent … sufficed to create reasonable

suspicion, then [the] reasonable suspicion requirement would become

meaningless”).

The forecast of evidence that the Plaintiff’s passenger, Hyatt, may

have owned or otherwise possessed a red car with stolen tags does not add

appreciably to this analysis. The Plaintiff and Hyatt were not driving the red

car at the time of the traffic stop. See generally United States v. Foster, 634

F.3d 243, 247 (4th Cir. 2011) (a person’s Fourth Amendment rights cannot

be lessened simply because he is “under investigation” by police); compare

United States v. Wheeler, 317 F.App’x 298, 299 (4th Cir. 2008) (holding that

there was no constitutional error with stopping and searching a car when

officers had a reasonable suspicion that the car being driven at that time was

stolen); Wilkinson v. Maese, No. 1:20-cv-783-MIS, 2021 WL 5416250, at *5

(D.N.M. Nov. 19, 2021) (holding that possession of a stolen vehicle was

sufficient to establish probable cause because the vehicle was indisputedly

in the plaintiff’s sole possession and plaintiff admitted that he had been

driving it). Moreover, there is no forecast of evidence that the red car was

stolen, only that the tag had been reported stolen, and the Defendants had

no information to suggest that Hyatt himself was responsible for the stolen

tag.

Because there are genuine issues of material fact as to whether

Defendant Lambert had probable cause or a reasonable suspicion to stop

the Plaintiff’s vehicle, the Court cannot determine the legality of the traffic

stop on summary judgment. See Fridley v. Horrighs, 291 F.3d 867, 872 (6th

Cir. 2002) (“In general, the existence of probable cause in a § 1983 action

presents a jury question, unless there is only one reasonable determination

possible.”). Summary Judgment will, however, be granted to Defendants

May and Lewis on this claim because the undisputed forecast of evidence

demonstrates that it was Defendant Lambert alone who initiated the traffic

stop.

Even so, the Deputy Defendants argue that Defendant Lambert is

entitled to qualified immunity on the Plaintiff’s claims for initiating the traffic

stop and that all of the Deputy Defendants are all entitled to qualified

immunity for the claims arising from the detention and searches that

followed.

“Qualified immunity protects officers who commit constitutional

violations but who, in light of clearly established law, could reasonably

believe that their actions were lawful.” Henry v. Purnell, 652 F.3d 524, 531

(4th Cir. 2011) (en banc). “To determine whether an officer is entitled to

qualified immunity, the court must examine (1) whether the plaintiff has

demonstrated that the officer violated a constitutional right and (2) whether

that right was clearly established at the time of the alleged violation.” E.W.

ex rel. T.W. v. Dolgos, 884 F.3d 172, 178 (4th Cir. 2018) (internal quotation

marks omitted). The doctrine of qualified immunity “gives government

officials breathing room to make reasonable but mistaken judgments and

protects all but the plainly incompetent or those who knowingly violate the

law.” Smith v. Ray, 781 F.3d 95, 100 (4th Cir. 2015) (internal quotation

marks omitted). An award of qualified immunity is inappropriate if a question

of material fact exists that, when resolved, would amount to the violation of

a clearly established constitutional right. See Quinn v. Zerkle, __ F.4th __,

2024 WL 3610110, *4 (4th Cir. Aug. 1, 2024); Ray v. Roane, 948 F.3d 222,

228 (4th Cir. 2020) (citing Smith, 781 F.3d at 100).

It is clearly established under the Fourth Amendment that individuals

have the right to be free from unlawful searches and seizures, including

traffic stops that are not justified by probable cause or a reasonable

suspicion. Hicks v. Ferreyra, 965 F.3d 302, 307 (4th Cir. 2020). Because

the forecast of evidence presents genuine disputes regarding whether

Defendant Lambert had a reasonable suspicion or probable cause to support

the traffic stop, the Court cannot determine at the summary judgment stage

whether a constitutional violation occurred with regard to the traffic stop.

Accordingly, the Defendant Lambert’s request for summary judgment based

on qualified immunity in initiating the traffic stop must be denied. Christian

v. Payne, 748 F.App’x 504, 506 (4th Cir. 2018) (stating that a “genuine

question of material fact regarding whether the conduct allegedly violative of

the right actually occurred must be reserved for trial”) (citing Schultz v. Braga,

455 F.3d 470, 476 (4th Cir. 2006)).

The Court also cannot determine as a matter of law whether the Deputy

Defendants are entitled to qualified immunity as to the Plaintiff’s claims that

are based on incidents that followed the initial traffic stop. The parties

present conflicting forecasts of evidence regarding significant events leading

up to and during the traffic stop, including the reasonableness of the length

of the detention and the justification for handcuffing the Plaintiff and for

searching him and his vehicle. If Defendant Lambert’s initial stop was not

supported by probable cause or a reasonable suspicion, the Plaintiff’s

continued detention and the subsequent searches would also be unlawful.

See Johnson v. Anhorn, 416 F.Supp.2d 338, 359 (E.D. Pa. 2006); Muir v.

Danner, No. 2:19-cv-00013, 2020 WL 4727072, at *5 (M.D. Tenn. Aug. 14,

2020), appeal dismissed, No. 20-5937, 2020 WL 6742325 (6th Cir. Sept. 16,

2020).

Because there are numerous factual issues regarding the Deputy

Defendants’ actions during the traffic stop, the Court cannot grant them

summary judgment based on qualified immunity as to the Plaintiff’s claims

regarding the traffic stop, the Plaintiff’s detention, and the subsequent

searches.

The same genuine disputes of material fact that exist regarding the

Defendants’ alleged violations of the Plaintiff’s Fourth Amendment rights also

preclude the Court from granting summary judgment for the Deputy

Defendants on the Plaintiff’s North Carolina claims. See, e.g., Rowland v.

Perry, 41 F.3d 167, 174 (4th Cir. 1994) (the parallel state law claim of assault

and battery is subsumed within a federal excessive force claim and goes

forward as well if the federal claim survives summary judgment).

Accordingly, the Deputy Defendants’ Motion for Partial Summary

Judgment is granted for Defendants May and Lewis as to the initial traffic

stop, but it is denied in all other respects.

B. Miller/Western’s Motion for Summary Judgment

The Plaintiff asserts state law claims against Sheriff Miller in his official

capacity and a claim against Western Surety on the Sheriff’s surety bond, as

well as § 1983 claims under a theory of municipal liability. Defendants Miller

and Western seek summary judgment because the Plaintiff has failed to

forecast sufficient evidence to support a § 1983 claim, and because

Defendant Miller has not waived his governmental immunity for the North

Carolina tort claims exceeding $20,000.00 and under $500,000.01. [Doc.

176-1].

Suits against sheriffs in their official capacity are in substance claims

against the office of the sheriff itself. Gannt v. Whitaker, 203 F.Supp.2d 503,

508 (M.D.N.C. Feb. 26, 2002). To succeed on such a claim, a plaintiff must

allege that a Sheriff’s Office policy or custom resulted in the violation of

federal law. See Monell v. New York City Dep’t of Social Servs., 436 U.S.

658, 694 (1978) (holding that in an official capacity suit, the entity’s “policy

or custom” must have played a part in the violation of federal law); Oklahoma

City v. Tuttle, 471 U.S. 808, 818-20 (1985) (discussing same). A plaintiff can

establish the requisite “policy” through a failure to train, if it “reflects a

‘deliberate’ or ‘conscious’ choice” to not do so. City of Canton v. Harris, 489

U.S. 378, 389 (1989). Proof of a single incident of unconstitutional activity is

not sufficient to impose liability under Monell, “unless proof of the incident

includes proof that it was caused by an existing, unconstitutional municipal

policy, which policy can be attributed to a municipal policymaker.” Tuttle,

471 U.S. at 823-24. In order to succeed on his official capacity claims,

therefore, the Plaintiff must not only prove the deprivation of a constitutional

right, but also that acts of a final decisionmaker caused the Plaintiff to be

subjected to such deprivation.

Here, the forecast of evidence demonstrates that BCSO deputies were

required to successfully complete training before being hired, complete in-

service training annually, and comply with BCSO written policies; that the

Deputy Defendants completed BLET training and annual in-service training;

that there was no policy, custom or practice within BCSO that permitted

deputy sheriffs to violate the constitutional rights of any person; and that

Sheriff Duncan was not aware of deputies searching individuals without

probable cause (except pursuant to policies that do not apply here).

While the Plaintiff states in Declarations that the Defendant Deputies

implemented an unwritten BWC policy that allowed them to conceal their

violations of the Plaintiff’s rights on January 20, 2018, [Docs. 257-1, 258-1:

Plaintiff’s Decls.], the Plaintiff’s forecast of evidence that the Deputy

Defendants used the unwritten BWC policy to conceal misconduct on a

single occasion fails to show the existence of a municipal custom or policy.

See Tuttle, 471 U.S. at 823-24. Moreover, the Plaintiff has not presented a

forecast of evidence attributing the unwritten BWC policy to a final

policymaker. As noted previously, the forecast of evidence demonstrates

that Sheriff Duncan enacted no such policy and was unaware that deputies

were violating individuals’ constitutional rights.

The Plaintiff now argues that Sheriff Duncan ratified the Deputy

Defendants’ wrongdoing by approving Hilliard’s administrative investigation

finding that no policy violations or illegal activity occurred, and that this gives

rise to Monell liability. [See Docs. 216, 232]. Even if the Plaintiff had

presented a forecast that Sheriff Duncan had approved Hilliard’s finding,

such after-the-fact approval could not have caused the Plaintiff’s alleged

injury. See Franklin v. City of Charlotte, 64 F.4th 519 (4th Cir. 2023) (holding

that City Manger’s post-facto approval of an internal investigation finding no

wrongdoing in plaintiff’s shooting death could not “undo” a constitutional

violation and, thus, it was not traceable to a final policymaker’s action).

Defendant Miller will, therefore, be granted summary judgment on the

Plaintiff’s Monell claims.

Defendants Miller and Western further argue that Miller has not waived

governmental immunity for North Carolina tort claims exceeding $20,000 and

under $500,000.01. [Doc. 176-1: Miller/Western MSJ Memo at 14-17]. The

Plaintiff agrees. [Doc. 216: MSJ Response at 1]. Accordingly, summary

judgment is granted on the Plaintiff’s surviving official capacity state tort

claims exceeding $20,000 and less than $500,000.01.12

Finally, Defendants Miller and Western argue that the Plaintiff’s

recovery on any surviving claims should be limited to the amount of the bond,

without the ability to sue repeatedly on the bond. [Doc. 176-1: Miller/Western

MSJ Memo. at 17; see Doc. 1: Compl. at ¶ 76 (Plaintiff seeks to “sue

repeatedly on the bond until the judgment is paid”)]. North Carolina Gen.

Stat. § 58-76-5 states that “[e]very person injured by the neglect, misconduct,

or misbehavior in office of any ... sheriff ... may institute a suit or suits against

said officer or any of them and their sureties.” A plaintiff’s damages are

limited to the extent to which the claims are covered under the bond

purchased. White v. Cochran, 229 N.C. App. 183, 190, 748 S.E.2d 334, 339

12 Had the Plaintiff had not conceded this point, the Court would have granted summary

for the reasons discussed by the Defendants. [See Doc. 176-1 at 14-17].

(2013). To the extent that the Plaintiff may recover damages against the

Sheriff, his recovery will be limited to the amount of the bond. See Morgan

v. Spivey, No. 5:16-cv-365, 2019 WL 81480, at *22-23 (E.D.N.C. Jan. 2,

2019) (collecting cases).

For the foregoing reasons, the summary judgment is granted for

Defendants Miller and Western as discussed in this section.

C. Plaintiff’s Motion for Summary Judgment

The Plaintiff argues that he should be granted summary judgment on

all of his claims pursuant to collateral estoppel, and that the case should

proceed to trial solely on damages. [Doc. 228 Plaintiff’s MSJ; Doc. 229:

Plaintiff’s MSJ Memo at 15]. Specifically, he argues that the following

determinations in Hyatt are binding on the parties in the instant action: (1)

that the “entire traffic stop” was unconstitutional because no there was no

lawful basis for Lambert to stop him, as demonstrated by the time variance

between the alleged infraction (12:30 p.m.) and the time noted in the traffic

citation (2:00 p.m.) [Doc. 229 at 11-15] and (2) that Defendant May violated

the Fourth Amendment with regard to the strip search by including false

material statements in the search warrant application [id. at 9-11].

Issue preclusion, sometimes called collateral estoppel, precludes a

party from relitigating an issue actually decided in a prior case and necessary

to the judgment. Lucky Brand Dungarees, Inc. v. Marcel Fashions Grp., Inc.,

590 U.S. 405, 411 (2020). Issue preclusion applies when later litigation

arises from a different cause of action between the same parties. In re Varat

Enters., Inc., 81 F.3d 1310, 1315 (4th Cir. 1996) (citing Allen v. McCurry, 449

U.S. 90, 94 (1980)). Issue preclusion operates to bar a party from

“relitigating an issue actually decided in a prior case and necessary to the

judgment.” Lucky, 590 U.S. at 411. For issue preclusion to apply, the

proponent must establish that:

(1) the issue sought to be precluded is identical to

one previously litigated; (2) the issue must have been

actually determined in the prior proceeding; (3)

determination of the issue must have been a critical

and necessary part of the decision in the prior

proceeding; (4) the prior judgment must be final and

valid; and (5) the party against whom estoppel is

asserted must have had a full and fair opportunity to

litigate the issue in the previous forum.

Sedlack v. Braswell Servs. Grp., Inc., 134 F.3d 219, 224 (4th Cir. 1998).

Offensive collateral estoppel occurs when a plaintiff employs the doctrine of

collateral estoppel to foreclose a defendant from litigating an issue that the

defendant previously litigated in an action with another party. Parklane

Hosiery Co. v. Shore, 439 U.S. 322, 326 n.4 (1979). There is a greater

possibility for unfairness from the use of offensive collateral estoppel, and

district courts are granted “broad discretion to determine when it should be

applied.” In re Microsoft Corp. Antitrust Lit., 355 F.3d 322, 326 (4th Cir.

2004). This discretion should not be exercised to permit the use of offensive

collateral estoppel “where a plaintiff could easily have joined in the earlier

action or where … the application of offensive collateral estoppel would be

unfair to a defendant….” Id. (listing additional nonexclusive factors) (quoting

Parklane Hosiery Co., 439 U.S. at 326 n.4).

As to the traffic stop, collateral estoppel does not apply to Defendant

Lambert’s alleged lack of reasonable suspicion for the traffic stop or to the

alleged illegality of the Plaintiff’s entire detention because no such final

determinations were reached in Hyatt. In making this argument, rather than

trying to apply any final judgment in Hyatt, the Plaintiff attempts to apply the

Court’s summary judgment conclusions in that prior case that several issues

of material fact existed. [See Doc. 229 at 7, 8]. However, the ultimate

conclusions that were reached in the Hyatt case found, to the contrary, that

the traffic stop and detention were justified, as discussed supra. See Hyatt

v. Miller, No. 1:19-cv-00250-MR-WCM, 2022 WL 3130108, at *2 (W.D.N.C.

Aug. 3, 2022). Accordingly, the Plaintiff’s attempt to rely on collateral

estoppel with regard to the legality of the traffic stop is rejected.

As to the conclusion that Defendant May violated the Fourth

Amendment with regard to the strip search of Hyatt, this conclusion has no

bearing on the constitutionality of May’s actions with respect to the strip

search of the Plaintiff, as they were two separate searches. Even if the

Plaintiff had been a party to the Hyatt litigation, the issue of the

constitutionality of the search performed on him would have been submitted

to the jury separately, and the jury would have had to determine whether the

particular circumstances of the Plaintiff’s search were constitutionally

permissible. The Court, therefore, declines to permit the use of offensive

collateral estoppel against Defendant May in the instant case. The Plaintiff’s

collateral estoppel arguments are, therefore, denied.

Insofar as the Plaintiff seeks summary judgment on his remaining

claims, this is also denied. There are genuine disputes of material fact

regarding the legality of the initial traffic stop and of the detention and

searches that followed as discussed supra. Accordingly, the Plaintiff’s

Motion for Summary Judgment on those claims is also denied.

V. CONCLUSION

For the reasons stated herein, the Court grants in part and denies in

part the Deputy Defendants’ Motion for Partial Summary Judgment, grants

Defendants Miller and Western’s Motion for Summary Judgment, and denies

Plaintiff’s Motion for Summary Judgment. The parties will be required to

notify the Court whether they object to a judicial settlement conference in this

matter.

ORDER

IT IS, THEREFORE, ORDERED that:

1. Defendants Quentin Miller and Western Surety’s Motion for

Summary Judgment [Doc. 176] is GRANTED.

2. Plaintiff Brandon Pickens’ Motion for Summary Judgment [Doc.

228] is DENIED.

3. Defendants J.D. Lambert, Jeff May, and Katherine Lewis’s

Motion for Partial Summary Judgment [Doc. 245] is GRANTED

IN PART AND DENIED IN PART. Specifically, the Motion is

GRANTED as to Defendants May and Lewis with respect to the

basis for the initial traffic stop. The Motion is DENIED with

respect to the Plaintiff’s claims related to the initial traffic stop by

Defendant Lambert, as well as his continued detention and the

subsequent searches of his vehicle and his person by

Defendants Lambert, May, and Lewis.

4. The parties shall notify the Court within fourteen (14) days of

this Order whether they object to a judicial settlement

conference in this matter.

IT 1S SO ORDERED.

Signed: September 12, 2024

Martifi Reidinger ey

Chief United States District Judge “lly

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