PETRISOR v. RODGERS

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

DAVID PETRISOR, )

)

Plaintiff, )

)

v. ) 1:23CV552

)

D. RODGERS, J. SWARINGEN, AND R. )

WALKER, )

)

Defendants. )

)

MEMORANDUM OPINION AND ORDER

LORETTA C. BIGGS, District Judge.

David Petrisor (“Plaintiff”), proceeding pro se1 brought this action pursuant to 42 U.S.C.

§1983, against D. Rodgers, J. Swaringen, and R. Walker (“Defendants”). (ECF No. 1 ¶ 7.)

Plaintiff alleges 12 causes of action against Defendants stemming from an alleged deprivation

of his Constitutional rights by oppressive police misconduct and the indifference of officials.

(Id. ¶ 1.) Before the Court is Defendants’ Motion to Dismiss and Motion to Strike. (ECF

Nos. 11, 20.) In addition, before the Court is Plaintiff’s Motion for Delayed Filing. (ECF No.

23.) For the reasons stated herein, Defendants’ Motion to Strike will be denied. Further,

Plaintiff’s Motion for Delayed Filing will be granted and Defendants Motion to Dismiss will

be granted in part and denied in part.

1 Petrisor is a pro se litigant, thus, the Court must construe his Complaint liberally, permitting a

potentially meritorious case to develop if one is present. Chrisp v. Univ. of N.C.-Chapel Hill, 471 F.

Supp. 3d 713, 715–16 (M.D.N.C. July 10, 2020) (citation omitted). “However, the liberal construction

I. BACKGROUND

Plaintiff is a citizen and resident of Guilford County, and a disabled veteran of the

United States Marine Corps. (ECF No. 1 ¶¶ 1-2.) During the time in question, Plaintiff

regularly visited the Guilford County Courthouse to file claims with and pay fees to the Clerk

of Court. (Id. ¶ 9.) According to Plaintiff’s Complaint, the Guilford County Courthouse

“adopted a court order prohibiting the entrance of cellular phones into courtrooms” which

was later amended to prohibit cellphones in the courthouse altogether. (Id. ¶¶ 10-11.)

Guilford County installed lockboxes for visitors to lock their cellphones in before entering the

courthouse. (Id. ¶ 13.) The charge for the use of the lockbox was $0.25 per lockbox. (Id.)

Plaintiff allegedly attempted multiple times to express his disagreement with the new policy.

(Id. ¶¶ 14-15.)

After repeated failed attempts to get the new policy changed, on December 8, 2020,

Plaintiff rented multiple lockboxes to protest the court’s policy. (Id. ¶ 16.) On December 14,

2020, again in protest, Plaintiff rented multiple lockboxes. (Id. ¶ 17.) It was on this day that

Defendant Swaringen arrested Plaintiff on charges of larceny for taking the keys to the

lockboxes outlined above. (Id. ¶ 20.) Plaintiff alleges that Defendant Swaringen applied “pain

techniques” during the arrest that subjected Plaintiff to pain and impacted his preexisting

medical conditions. (Id. ¶¶ 22-23, 27.) Once at the station, Plaintiff alleges that the officers

“began to debate if Plaintiff had even committed a larceny.” (Id. ¶ 38.) Plaintiff was detained

for nearly an hour and when released he resumed renting lockboxes without any interruption

from Defendants. (Id. ¶¶ 57-58.) The following day on December 16, 2020, Plaintiff was

arrested on two warrants for larceny and booked in the Durham County Jail. (Id. ¶¶ 60-61.)

Plaintiff was ultimately acquitted of all charges. (Id. ¶ 62.)

On July 3, 2023, Plaintiff filed the instant Complaint. (ECF No. 1.) He named Sheriff

D. Rodgers (Sheriff Rodgers), Deputy J. Swaringen (Defendant Swaringen), and Sergeant R.

Walker (Defendant Walker) as Defendants. (Id. ¶¶ 3-5.) On August 25, 2023, Defendants

filed a Motion to Dismiss for Failure to State a Claim. (ECF No. 11.) On October 23, 2023,

Plaintiff filed his Response in Opposition to the Motion to Dismiss. (ECF No. 19.)

In addition, the parties have each filed motions that may impact the Courts

consideration of Defendants’ Motion to Dismiss. On November 6, 2023, Defendants filed a

Motion to Strike Plaintiff’s Response in Opposition to Defendants’ Motion to Dismiss. (ECF

No. 20.) On November 27, 2023, Plaintiff filed his Motion for Delayed Filing seeking to have

his Response considered by the Court. (ECF No 23.) The Motion to Strike and Motion for

Delayed Filing are threshold issues that must be addressed before addressing the merits of

Defendants’ Motion to Dismiss. The Court therefore will next address these preliminary

issues.

II. PRELIMINARY MOTIONS

A. Motion to Strike

Defendants filed a Motion to Strike Plaintiff’s Response in Opposition to Defendants’

Motion to Dismiss arguing that Plaintiff cannot prove that his late filing was the result of

excusable neglect, pursuant to Rule 6(b)(1)(B). (ECF No. 21 at 4-5.) Plaintiff admits that his

filing was late but argues that his late filing should be accepted because it was due to an

“inadvertence of a calendaring issue” which he believes should be considered excusable

neglect. (ECF. No 25 at 1.)

Rule 6(b)(1)(B) allows a court to extend time for good cause “on motion made after

the time has expired if the party failed to act because of excusable neglect.” Fed. R. Civ. P.

within the time specified ... shall constitute a waiver of the right thereafter to file such brief or

response, except upon a showing of excusable neglect.” L.R. 7.3(k). Should this Court not

find excusable neglect, Plaintiff would be deemed to have waived his right to respond as

provided in Local Rule 7.3(k). Daye v. Potter, 380 F. Supp. 2d 718, 721 (M.D.N.C. Apr. 12,

2005) (determining that “fail[ing] to show ‘excusable neglect’ or any sufficient basis for failing

to timely file a Response [to defendant’s motion to dismiss] … Plaintiff will be deemed to

have waived his right to respond as provided in Local Rule 7.3(k)”).

Here, Defendants filed their Motion to Dismiss on August 25, 2023. (ECF No. 11.)

According to Local Rule 7.3(f) Plaintiff’s Response was due within 21 days after service of the

motion. L.R. 7.3(f). However, Plaintiff filed a timely Motion for Extension of Time to File a

Response on September 1, 2023. (ECF No. 17.) Plaintiff’s motion asked for a 28-day

extension which was granted. (Text Order dated Sept. 6, 2023.) Plaintiff’s new deadline to

file his Response was October 13, 2023; however, Plaintiff filed his response on October 23,

2023. (ECF No. 19 at 1.) Ultimately, Plaintiff’s Response was filed ten days later than the

October 13, 2023, extension deadline. It was not until after Defendants filed a Motion to

Strike Plaintiff’s late Response that Plaintiff filed his second Motion for Delayed Filing for the

Response that was already submitted. (See ECF No. 23.)

The issue before this Court is whether Plaintiff’s ten-day delay in filing is excusable

neglect under Rule 6(b)(1)(B). “[T]he determination of excusable neglect is an equitable one,

based on consideration of ‘[1] the danger of prejudice to the [non-movant], [2] the length of

the delay and its potential impact on judicial proceedings, [3] the reason for the delay, including

whether it was within the reasonable control of the movant, and [4] whether the movant acted

in good faith.’” Daye, 380 F. Supp. 2d at 720 (quoting Pioneer Inv. Serv. Co. v. Brunswick Assocs.

Ltd. P’ship, 507 U.S. 380, 395 (1993)).

Defendants concede that the excusable neglect factors one, two, and four weigh heavily

in Plaintiff’s favor. (ECF No. 26 at 5.) The first factor, the danger of prejudice to the non-

movant, supports a finding of excusable neglect. There is no evidence offered by either party

that Defendants suffered prejudice from Plaintiff’s delayed filing. (See ECF Nos. 21, 25, 26.)

Further, a “delay in and of itself does not constitute prejudice to the opposing party.” Colleton

Preparatory Acad. Inc. v. Hoover Universal, Inc., 616 F.3d 413, 418 (4th Cir. 2010). The second

factor weighing in Plaintiff’s favor is the length of delay and its potential impact on judicial

proceedings. Here, the delay was ten days late and this case is not yet set for trial. Nor does

Defendant contend that the delay interfered with other court proceedings. (See ECF Nos. 21,

26.)

Courts in this district have found excusable neglect in instances where the delay was

“fairly short.” See Terry v. Swift Transp., No. 1:16-cv-256, 2017 WL 4236923, at *2 (M.D.N.C.

Sept. 22, 2017) (finding seven days to be a “minimal delay” and in support of a finding of

excusable neglect). Here, Plaintiff’s Response was filed ten days (or five business days) late

which this Court does not deem per se is a substantial amount of time under the circumstances

of this case. Additionally, all briefing on the Motion to Dismiss is now complete and

consideration of each brief will not result in undue delay. In sum, there was very limited effect

on judicial proceedings. See also Symbionics Inc. v. Ortlieb, 432 F. App’x 216, 219 (4th Cir. 2011)

(finding that “[a]s a general rule, the first two Pioneer factors will favor the moving party”)

(citation omitted).

Further, Defendants concede that the fourth factor—whether the movant acted in

good faith—weighs in favor of the Plaintiff. (ECF No. 26 at 5.) Plaintiff states that his late

filing was due to a calendaring error where he “transposed the 13th of October to the 23rd of

October.” (ECF No. 25 at 1.) This Court does not find that Plaintiff acted in bad faith in

submitting his late filing. “[T]he fourth Pioneer factor is rarely material, as the absence of good

faith is seldom at issue in the excusable neglect cases.” Ortlieb, 432 F. App’x at 219.

The factor Defendants do not concede to is the third factor outlined above, the reason

for the delay and whether it was within the reasonable control of the movant. Defendants

assert that Plaintiff does not meet this factor because he committed a calendaring error and

his pro se status should not afford him extra protections since he specifically requested the

October 13, 2023, extended deadline. (ECF No. 26 at 6-7.)

The third Pioneer factor is the most important of the Pioneer factors. Thompson v. E.I.

DuPont de Nemours & Co., Inc., 76 F.3d 530, 534 (4th Cir. 1996). The Fourth Circuit has

routinely held that calendaring errors fail to be considered excusable neglect. See e.g., Agnew v.

United States Leasing Corp., 680 F’App’x 149, 155 (4th Cir. 2017) (affirming denial of a motion

to file an untimely brief based on claim that plaintiff’s counsel “mistakenly calendared the

wrong date”); Ortlieb, 432 F. App’x at 220 (finding no excusable neglect for a calendar error

made by plaintiff’s counsel causing filing to be one day late). However, courts do have

discretion to allow late filings even where the delay was the result of inadvertence. Pioneer, 507

U.S. at 392.

While Plaintiff’s late filing was the result of an inadvertent calendaring error, the other

factors weigh heavily in Plaintiff’s favor. Though Defendants argue that Plaintiff filing a

motion for extension of time specifically requesting October 13th, weighs against him, this

Court finds that it further shows that Plaintiff’s error was truly a calendaring issue. Even if

this Court were to find that the third factor weighs against Plaintiff, the other three factors

strongly support a finding of excusable neglect. See Terry, 2017 WL 4236923, at *2 (allowing

an untimely filing where “the record reflects a complete absence of any sign that anything

other than a good-faith mistake occurred.”); see also Pioneer, 507 US. at 398 (“the lack of any

prejudice to the [opposing party] or to the interests of efficient judicial administration,

combined with the good faith of respondents…weigh strongly in favor of permitting the tardy

claim.”).

“[A] district court should find excusable neglect only in the extraordinary cases where

injustice would otherwise result. Thompson, 76 F.3d at 534 (internal quotation marks omitted).

Here, the harsh result that would occur should the Court strike Plaintiff’s Response requires

that this Court does otherwise. See Williams v. Williams, No. 1:20-cv-904, 2021 WL 3679613,

at *4 (M.D.N.C. Aug. 19, 2021) (finding that because Defendant is proceeding pro se

“significant prejudice would result should the court not consider his filings in support of his

motion for summary judgment.”). Accordingly, the Court denies Defendants’ Motion to

Strike Plaintiff’s Response in Opposition to Defendants’ Motion to Dismiss, as it finds

excusable neglect exists.

B. Motion for Delayed Filing

After Defendants filed their Motion to Strike, Plaintiff filed a Motion for Delayed Filing

asking the Court to allow his late Response in Opposition to Defendants’ Motion to Dismiss.

(ECF No. 23 at 1.) Plaintiff argues that he filed his Response late due to a “simple calendaring

issue,” the same argument he made regarding Defendants’ Motion to Strike. (Id.) As the

Court has already found that it will consider Plaintiff’s Response in Opposition, his Motion

for Delayed Filing is granted. Therefore, in the interest of justice, based on the discussion

outlined above, this Court concludes that it will, in its discretion, consider each of the parties’

arguments with respect to Defendants’ Motion to Dismiss.

III. MOTION TO DISMISS

Defendants filed a Motion to Dismiss stating that all twelve of Plaintiff’s claims should

be dismissed as they fail to state a claim upon which relief may be granted under Federal or

State law. (ECF No. 11 at 1-2.) Plaintiff opposes this motion and argues that all his claims

sufficiently state a claim for relief. (See ECF No. 19.)

A. Standard of Review

A motion to dismiss under Rule 12(b)(6) “challenges the legal sufficiency of a

complaint,” including whether it meets the pleading standard of Rule 8(a)(2). See Francis v.

Giacomelli, 588 F.3d 186, 192 (4th Cir. 2009). Rule 8(a)(2) requires a complaint to contain “a

short and plain statement of the claim showing that the pleader is entitled to relief,” Fed. R.

Civ. P. 8(a)(2), thereby “giv[ing] the defendant fair notice of what the . . . claim is and the

grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 55 (2007) (quoting Conley

v. Gibson, 355 U.S. 41, 47 (1957)).

To survive a Rule 12(b)(6) motion to dismiss, “a complaint must contain sufficient

factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft

v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). In assessing a claim’s

plausibility, a court must draw all reasonable inferences in the plaintiff’s favor. Vitol, S.A. v.

Primerose Shipping Co., 708 F.3d 527, 539 (4th Cir. 2013). A claim is plausible when the

complaint alleges facts that allow the court “to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. However, “mere

F.3d 342, 350 (4th Cir. 2013), and a court “need not accept as true unwarranted inferences,

unreasonable conclusions, or arguments,” Vitol, 708 F.3d at 548 (quoting Jordan v. Alt. Res.

Corp., 458 F.3d 332, 338 (4th Cir. 2006)).

B. Extrinsic Evidence

Along with their briefs, both parties submitted exhibits that were not filed with

Plaintiff’s Complaint. Defendants submitted a thumb drive of Defendant Swaringen’s body

worn camera video on the day of the incident. (ECF No. 15.) Plaintiff also submitted a thumb

drive containing videos from cameras around the Guilford County Courthouse, along with

audio recordings from December 8, 2023. (ECF No. 19-1.) This Court finds that neither

thumb drive should be relied on in analyzing the instant motion to dismiss.

While extrinsic evidence is generally not considered when evaluating the sufficiency of

a complaint, documents attached to a motion to dismiss may typically be considered if they

are “integral to the complaint and authentic.” Phillips v. Pitt Cty. Mem. Hosp., 572 F.3d 176, 180

(4th Cir. 2009). However, the Fourth Circuit views videos submitted at the motion to dismiss

stage differently. Videos submitted at the motion to dismiss stage can only be considered by

district courts when the video is integral to the complaint and its authenticity is not challenged,

but also only when it “clearly depicts a set of facts contrary to those alleged in the complaint

or blatantly contradicts the plaintiff’s allegations, rendering the plaintiff’s allegations

implausible.” Doriety for Estate of Crenshaw v. Sletten, 109 F.4th 670, 679-80 (4th Cir. 2024)

(citation omitted).

While Plaintiff does not challenge the authenticity of the body worn camera footage

and it is likely integral to the Complaint, as he references parts of the footage in detail in his

pleadings, it will not be considered. Upon review of the body camera footage, the video does

not blatantly contradict Plaintiff’s allegations. The video captures the interaction between

Plaintiff and Defendant Swaringen, the arrest, and the events following the arrest. At no point

does the footage “utterly discredit” Plaintiff’s version of events. Lewis v. Caraballo, 98 F.4th

521, 529 (4th Cir. 2024) (citations omitted). Likewise, Plaintiff’s videos from the courthouse

and the audio recording do not contradict his Complaint, rather they support it. Therefore,

this Court takes neither party’s extrinsic evidence submissions into consideration in rendering

this decision.

C. Federal Claims for Relief

Plaintiff asserts twelve claims for relief in his Complaint. (ECF No. 1 ¶¶ 63-124.)

Claims 1-6, and 12 are § 1983 claims, and claims 7-11 are state law claims. (Id.) The Court

will now analyze each of Plaintiff’s claims, beginning with his § 1983 claims, and determine

whether they each state a claim for relief that is plausible on its face.

Under 42 U.S.C. § 1983, a plaintiff may file suit against any person who, acting under

color of state law, “subjects, or causes to be subjected, any citizen of the United States or other

person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities

secured by the Constitution and laws” of the United States. 42 U.S.C. § 1983. To state a claim

under §1983, a plaintiff must “[1] allege the violation of a right secured by the Constitution

and the laws of the United States, and [2] [] show that the alleged violation was committed by

a person acting under the color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988) (citations

omitted).

Regarding the second element of a §1983 claim—the alleged violation was committed

by a person acting under the color of state law—an individual acts under color of state law

when exercising or misusing power “possessed by virtue of state law and made possible only

because the wrongdoer is clothed with the authority of state law.” United States v. Classic, 313

U.S. 299, 326 (1941) (citations omitted). Further, “a public employee acts under color of state

law while acting in his official capacity or while exercising his responsibilities pursuant to state

law.” West, 487 U.S. at 50.

1. Plaintiff Fails to State Any § 1983 Claim Under the Fourteenth

Amendment

Plaintiff seeks to fulfill the first requirement by alleging violations of his rights secured

by the First, Fourth, and Fourteenth Amendments. (See ECF No. 1 ¶¶ 62, 69, 75, 80, 84.)

Five of Plaintiff’s federal claims state the Fourteenth Amendment as a basis for the claim along

with either the First or Fourth Amendment. Those claims are: (1) arrest without probable

cause in violation of the Fourth and Fourteenth Amendments; (2) excessive force in violation

of the Fourth and Fourteenth Amendments; (3) unreasonable search in violation of the Fourth

and Fourteenth Amendments; (4) retaliatory arrest in violation of the First and Fourteenth

Amendments; and (5) deliberately indifferent policies, practices, customs, hiring, and training

in violation of the Fourth and Fourteenth Amendments. (ECF No. 1 ¶¶ 62, 69, 75, 80, 84.)

While Plaintiff alleges a violation of the Fourteenth Amendment in all five claims, he only

articulates specific facts setting forth the basis and nature of the Fourteenth Amendment claim

for one of his five claims, arrest without probable cause. (See ECF No, 1 ¶¶ 63-69.)

In his Complaint under arrest without probable cause, Plaintiff states that his arrest

“was compounded when Defendant [Swaringen] not only continued the prosecution without

probable cause but added additional fabricated charges in an effort to justify his actions. This

is a distinct violation of the Fourth and Fourteenth Amendments.” (Id. ¶ 67.) Plaintiff’s

assertion that Defendant Swaringen “fabricated charges” leads this Court to believe that he is

attempting to articulate a basis for his Fourteenth Amendment claim under this cause of

action.

Under the Fourteenth Amendment, state actors shall not deprive any person of life,

liberty, or property without due process of law. U.S. Const. amend. XIV § 1. Plaintiff’s

Fourteenth Amendment claim begins after his arrest as “[a]t some point after a person is

arrested, the question whether his continued confinement or prosecution is unconstitutional

passes over from the Fourth Amendment to the due process clause.” Massey v. Ojaniit, 759

F.3d 343, 356 n. 6 (4th Cir. 2014) (quoting Jones v. City of Chicago, 856 F.2d 985, 994 (7th Cir.

1988)).

To sufficiently allege a Fourteenth Amendment claim based on alleged fabricated

charges, Plaintiff must plead adequate facts to establish that his loss of liberty resulted from

the fabrication, and that his conviction was a reasonably foreseeable result of the fabrication.

Massey, 759 F.3d at 354 (citations omitted). While Plaintiff states that fabricated charges were

added, he does not allege or state any facts pertaining to his conviction being a reasonably

foreseeable result. As such, his Fourteenth Amendment claim for arrest without probable

cause is dismissed.

Additionally, Plaintiff’s four other causes of action alleging Fourteenth Amendment

violations, claims two through five, are dismissed because Plaintiff does not articulate any facts

setting forth the basis and nature of his alleged Fourteenth Amendment claims. (See ECF No.

1 ¶¶ 70-97.) Although Plaintiff is pro se and his Complaint is to be “liberally construed,” Estelle

v. Gamble, 429 U.S. 97, 106 (1976), this Court is not required to “conjure up questions never

squarely presented to [it]. District Judges are not mind readers.” Beaudett v. City of Hampton,

775 F.2d 1274, 1278 (4th Cir. 1985).

Thus, the Court will dismiss all of Plaintiff’s Fourteenth Amendment claims for failure

to state a claim upon which relief may be granted. Because, however, Plaintiff has also alleged

a separate constitutional basis (either the First or Fourth Amendment) for claims one through

five, the Court will next determine whether Plaintiff has sufficiently stated a § 1983 claim, with

respect to his first five claims, on a basis other than the Fourteenth Amendment.

2. Plaintiff Fails to State a Claim of Arrest Without Probable Cause

With respect to Plaintiff’s first cause of action, the Court will only address whether

Plaintiff has sufficiently alleged whether he was arrested without probable cause under the

Fourth Amendment, in that the Fourteenth Amendment claim has previously been dismissed.

Plaintiff alleges that he was arrested without probable cause in violation of the Fourth

Amendment against Defendant Swaringen in his individual capacity. (ECF No. 1 ¶ 62.)

Defendants argue that Defendant Swaringen had probable cause to arrest Plaintiff because

Plaintiff satisfies all the elements of larceny, injury to personal property, and resisting,

obstructing, or delaying a public officer discharging an official duty (“RDO”). (ECF No. 12

at 10-16.) In the alternative they argue that even if there was no probable cause, Defendant

Swaringen is protected by qualified immunity. (Id. at 14-16.) Plaintiff counters that Defendant

Swaringen did not have probable cause to arrest him because he purchased the keys and

therefore committed none of the crimes for which he was charged. (See ECF No. 19 at 4, 7,

8.)

The Fourth Amendment protects individuals from unreasonable searches and seizures

by the government. U.S. Cont. amend. IV. A warrantless arrest by law enforcement is

reasonable under the Fourth Amendment when there is probable cause to believe that a

criminal offense has been or is being committed. United States v. Watson, 423 U.S. 411, 417

(1976); see also Brown v. Gilmore, 278 F.3d 362, 367 (4th Cir. 2002). The determination of

probable cause is considered using the “totality-of-the-circumstances” present in a case. Illinois

v. Gates, 462 U.S. 213, 230 (1983). “Whether probable cause exists depends upon the

reasonable conclusion to be drawn from the facts known to the arresting officer at the time

of the arrest.” Devenpeck v. Alford, 543 U.S. 146, 152 (2004).

The two inquiries for probable cause are the “suspect’s conduct as known to the

officer, and the contours of the offense thought to be committed by that conduct.” Pritchett

v. Alford, 973 F.2d 307, 314 (4th Cir. 1992). An arresting officer’s state of mind—except for

the facts that he has knowledge of—is irrelevant to probable cause. See Whren v. United States,

517 U.S. 806, 812-14 (1996). Upon his arrest, Plaintiff was made aware he was being arrested

for larceny and RDO. This Court will analyze whether Plaintiff’s Complaint states a claim

that Defendant Swaringen lacked probable cause for either of these offenses.

a. Plaintiff Sufficiently Alleges that Defendant Swaringen Lacked

Probable Cause to Arrest Him for Larceny

Under North Carolina law, to obtain a larceny conviction one must prove that the

individual “(1) took the property of another; (2) carried it away; (3) without the owner’s

consent, and (4) with the intent to deprive the owner of the property permanently.” U.S. v.

Jarmon, 596 F.3d 228, 230 (4th Cir. 2010) (quoting State v. Rawlinson, 679 S.E.2d 878, 882 (N.C.

Ct. App. 2007)).

In construing the allegations in Plaintiff’s Complaint in his favor, which this Court is

required to do, Plaintiff sufficiently alleges the first two elements of larceny. Regarding the

first element, — took the property of another — Plaintiff alleges in his Complaint that he took

the keys that belonged to Guilford County. The element of taking requires that the accused

Carswell, 249 S.E.2d 427, 429 (N.C. 1978). In his Complaint, Plaintiff states that “[o]n

December 14th, 2020, Plaintiff. . . .resumed his protest by renting multiple lockboxes.” (ECF

No. 1 ¶ 17.) In renting the lockboxes, Plaintiff took the keys belonging to Guilford County

as after his arrest he asked if Defendants “could return the rented keys to his person “and

even “requested a receipt for the keys taken from his person.” (Id. ¶ 56.)

Regarding the second element, — carried it away — Plaintiff’s Complaint alleges that

Plaintiff rented the keys and pocketed them during his protest. Although on December 14th

Plaintiff did not fully leave the premises with the keys, carrying away does not require that the

“property be completely removed from the premises of the owner.” State v. Gilbert, No.

COA06-16, 2006 WL 3490230, *3 (N.C. Ct. App. 2006). The property no longer being under

the control of the owner is sufficient for a carrying away to have occurred. Id. Thus, Plaintiff’s

Complaint alleges that he carried the keys away.

However, Plaintiff’s Complaint does not sufficiently allege that he took the keys

without the owner’s consent, the third element of larceny. Defendants argue that “common

sense requires” that the consent given to patrons renting the lockboxes is temporary for “the

specific purpose of safeguarding personal property while attending to Courthouse business.”

(ECF No. 12 at 11.) However, nothing in the Complaint alleges the existence of any signage

that placed rules on the use of the lockers. (See ECF No. 1.) In fact, the Complaint alleges

that Plaintiff questioned Defendant Swaringen about any signage stating that he had to return

the property to which Defendant replied, “there is no physical sign.” (ECF No. 1 ¶ 53.)

Additionally, while the manner in which lockboxes operate requires patrons to pocket the key

and walk away from the lockers, nothing in the Complaint supports an inference that Plaintiff

took the keys without the consent of the County.

Additionally, the Complaint does not sufficiently allege that Plaintiff intended to

permanently deprive the Courthouse of its property. The fourth element of larceny, intent to

permanently deprive, is often inferred from circumstantial evidence rather than direct proof;

however, “[s]omething more than the mere act of taking is necessary.” State v. Foy, 42 S.E.

934, 935 (N.C. 1902). Nothing in the Complaint leads this Court to believe that Plaintiff

intended to permanently keep the keys as Plaintiff states in his Complaint that “he was . . . still

renting those boxes,” therefore he would, by virtue of use of the lockers, still be in possession

of the keys. (ECF No. 1 ¶ 53.) Additionally, nothing in the Complaint supports a finding that

Plaintiff would never return the keys. (See ECF No. 1.)

Further, this Court does not find that a reasonable officer would believe a larceny was

committed when analyzing the totality of the circumstances. In viewing the Complaint,

Plaintiff’s objective in protesting was to inconvenience the County, not to commit a larceny,

as Plaintiff paid money for each key. According to the Complaint, Defendant Swaringen

observed Plaintiff paying to rent the lockboxes and he acknowledged that there was no signage

on or near the lockers outlining rules regarding the use of the lockboxes. Thus, the Court

concludes that the Complaint alleges sufficient facts to find that Defendant Swaringen lacked

probable cause to arrest Plaintiff on the charge of larceny.

b. Plaintiff Fails to Sufficiently Allege that Defendant Swaringen

Lacked Probable Cause to Arrest him for RDO

Although Plaintiff alleges that Defendant Swaringen lacked probable cause for the

charge of RDO, the Court finds otherwise. The elements of this offense are: (1) the victim

was a public officer; (2) the arrestee knew or had reasonable grounds to believe that the victim

was a public officer; (3) the victim was discharging or attempting to discharge a duty of his

to discharge a duty of his office; and (5) the arrestee acted willfully and unlawfully, that is

intentionally and without justification or excuse. State v. Harper, 877 S.E.2d 771, 776-77 (N.C.

Ct. App. 2022) (internal quotations omitted) (citations omitted).

The first two elements have been alleged as the Complaint alleges that Defendant

Swaringen approached Plaintiff and accused him of committing a crime. (ECF No. 1 ¶ 17.)

It is clear from the Complaint that Plaintiff knew that Defendant Swaringen was a public

officer, and Plaintiff does not dispute these elements in his Response. The third element is

met because conducting investigatory stops is a duty of a police officer. See Terry v. Ohio, 392

U.S. 1, 10 (1968) (finding that police should be “allowed to ‘stop’ a person and detain him

briefly for questioning upon suspicion that he may be connected with criminal activity.”).

Defendant Swaringen told Plaintiff that they “needed to talk” and that Plaintiff “was going to

come inside the courthouse” with him and informed Plaintiff that he was being detained.

(ECF No. 1 ¶ 19.) It is clear from the allegations in the Complaint that Defendant Swaringen

was conducting an investigatory stop because he believed Plaintiff was committing a larceny.

(See ECF No. 1 ¶ 17.)

The fourth element—that the arrestee resisted, delayed, or obstructed the victim in

discharging or attempting to discharge a duty of his office—is also met according to the

Complaint. During the encounter, Plaintiff states that he told Defendant Swaringen to back

away from him numerous times then moved away from Defendant Swaringen. (ECF No. 1 ¶

20.) Although refusing an officer’s commands alone is not enough, when it is accompanied

by disruption to the officer’s duties, RDO is met. State v. Leigh, 179 S.E.2d 708, 713 (N.C.

1971). Here, Plaintiff was aware that he was detained, and that Defendant Swaringen wanted

to ask him questions, and he physically moves away.

For the last element, the Complaint alleges sufficient facts that show that Plaintiff acted

willfully and unlawfully. To prove willfulness, evidence must be presented that the Plaintiff

acted “purposely and deliberately in violation of the law.” State v. Peters, 804 S.E.2d 811, 816

(N.C. Ct. App. 2017) (quoting State v. Arnold, 141 S.E.2d 473, 474 (N.C. 1965)). Willfulness is

defined as “a state of mind which is seldom capable of direct proof, but which must be inferred

from the circumstances of the particular case.” State v. Davis, 356 S.E.2d 607, 610 (N.C. App.

Ct. 1987) (citation omitted). Here, Plaintiff admits that he moved away from the officer. (ECF

No. 1 ¶ 19.) While moving away alone is not sufficient, Plaintiff did so after he was told he

was being detained. (See ECF No. 1 ¶ 20.) Further, an individual moving away from an officer

is evidence of flight. State v. Butler, 415 S.E.2d 719, 722 (N.C. 1992) (finding that defendant

making eye contact with officer and then walking away was evidence of flight giving the officer

reasonable suspicion to make a lawful stop).

Plaintiff argues that any movement he made to distance himself from Defendant

Swaringen was well within his rights because there was never a crime of larceny to investigate

in the first place. (ECF No. 19 at 7.) Plaintiff is correct that a person is entitled to resist an

illegal arrest. State v. McGowan, 90 S.E.2d 703, 704 (N.C. 1956); see also State v. White, 214 N.C.

App. 471, 479 (2011) (finding that an individual’s subsequent flight from a “consensual

encounter or from an unlawful investigatory stop [lacking reasonable suspicion] cannot be

used to justify his arrest for resisting, delaying, or obstructing a public officer.”). However,

flight from a lawful investigatory stop “may provide probable cause to arrest an individual for

violation of [RDO].” State v. Lynch, 380 S.E.2d 397, 399 (N.C. 1989). That is what we have

here, according to the Complaint Defendant Swaringin was conducting a lawful investigatory

stop when Plaintiff began moving away. Defendant Swaringen had suspicion that Plaintiff

may be connected with criminal activity because he previously took keys from the lockbox,

and he observed Plaintiff taking multiple keys on the day in question. (See ECF No. 1 ¶ 18.)

According to the allegations in the Complaint, the Court finds that Plaintiff’s flight

from Defendant Swaringen’s lawful investigatory stop provided probable cause for Plaintiff

to be arrested for RDO. As the facts in the Complaint show that Defendant Swaringen had

the necessary probable cause to arrest, this Court will not examine whether probable cause

existed for Plaintiff’s third criminal charge of injury to personal property. Further, as probable

cause was found, Plaintiff’s claims for malicious prosecution and false arrest fail as a matter of

law. See Allen v. City of Dunn, 708 F. Supp. 3d 743, 752 (E.D.N.C. Dec. 27, 2023) (“because

probable cause existed to arrest plaintiff for RDO, plaintiff’s claims for malicious prosecution

and false arrest fail as a matter of law.”).

c. Defendant Swaringen is Shielded by Qualified Immunity

Even if for the sake of argument Defendant Swaringen did not have probable cause to

arrest, Defendants contend that he is protected by qualified immunity. Qualified immunity

“shields government officials from civil damages liability unless the official violated a statutory

or constitutional right that was clearly established at the time of the challenged conduct.”

Reichle v. Howards, 566 U.S. 658, 664 (2012). The purpose of qualified immunity is to allow

some discretionary judgment in difficult circumstances and to not have the prospect of being

blind-sided in hindsight or discourage officers from the constructive tasks they can in fact

perform. Melgar ex rel. Melgar v. Greene, 593 F.3d 348, 357 (4th Cir. 2010). “Officers will not

be held liable, even if they violate a statutory or constitutional right, unless they had prior

guidance which would allow them to determine that their contemplated action was improper.”

Id.

In analyzing qualified immunity, courts must answer two questions: (1) has the plaintiff

established that, when viewing the evidence most favorable to him, the officers violated his

constitutional rights; and if the answer to the first inquiry is in favor of the Plaintiff, then (2)

have the officers shown that the asserted rights were not clearly established by law at the time

of the interaction. Stanton v. Elliot, 25 F.4th 227, 233 (4th Cir. 2022). The second inquiry really

analyzes whether Defendants established that it was not “clear to a reasonable officer that the

conduct in which [Defendant] allegedly engaged was unlawful in the situation he confronted.”

Merchant v Bauer, 677 F.3d 656, 662 (4th Cir. 2012) (quoting Figg v. Schroeder, 312 F.3d 625, 635

(4th Cir. 2002)) (internal quotations omitted). In the Fourth Circuit, the qualified immunity

defense has a split burden. Stanton, 25 F.4th at 233. Plaintiff bears the burden on the first

prong and Defendant Swaringen will bear the burden on the second prong. Id.

Defendants use qualified immunity as a defense to this cause of action. Using the

standards outlined, this Court must determine whether Defendant Swaringen, in arresting

Plaintiff, violated Plaintiff’s clearly established rights of which a reasonable person would have

known. The right implicated is Plaintiff’s Fourth Amendment right to be free from

unreasonable seizures, specifically an unlawful seizure of one’s person, or arrest.

As the Court found that Plaintiff did not sufficiently allege that Defendant Swaringen

violated Plaintiff’s rights under the Fourth Amendment, the first prong has not been satisfied,

thus the Court need not address the second prong, i.e., whether such rights were clearly

established as the time of the interaction.

The Court therefore concludes that, Plaintiff has failed to plausibly allege that

Defendant Swaringen lacked probable cause to arrest Plaintiff; and that Defendant Swaringen

is entitled to qualified immunity relating to this claim. Thus, Plaintiff’s first cause of action is

dismissed.

3. Plaintiff Sufficiently Alleges a Claim of Excessive Force

With respect to Plaintiff’s second cause of action, the Court will only address whether

Plaintiff has sufficiently alleged a claim of excessive force under the Fourth Amendment, in

that the Fourteenth Amendment claim has previously been dismissed. Plaintiff’s second §

1983 claim is excessive force in violation of the Fourth Amendment against Defendant

Swaringen in his individual capacity. Here Plaintiff alleges that Defendant Swaringen engaged

in excessive force when he “threw Plaintiff against a glass [] door,” “twisted his arm applying

a pain compliance technique,” and “struck Plaintiff’s feet off a table.” (ECF No. 1 ¶¶ 71-72.)

Defendants argue that some use of force was justified here because of the nature of

the crime, Plaintiff posing a potential threat because of his size and demeanor, and Plaintiff

allegedly attempting to leave the scene. (ECF No. 12 at 17.) Plaintiff counters that he posed

no threat to Defendant Swaringen. (ECF No. 19 at 11.)

Whether an officer exercised excessive force is judged by an objective standard. Elliot

v. Leavitt, 99 F.3d 640, 642 (4th Cir. 1996). Courts do not look into officer’s motives or

intentions, they look to determine “whether a reasonable officer in the same circumstances

would have concluded that a threat existed justifying the particular use of force.” Id. (quoting

Graham v. Connor, 490 U.S. 386, 396-97(1989)). This requires a careful look into the facts and

circumstances of each case. Graham, 490 U.S. at 396. Graham outlines three factors that

provide a useful framework for evaluating whether an officer’s conduct was objectively

reasonable; “[1] the severity of the crime at issue, [2] whether the suspect poses an immediate

threat to the safety of the officers or others, and [3] whether [the suspect] is actively resisting

arrest or attempting to evade arrest by flight.” Id.

The first two Graham factors weigh heavily in Plaintiff’s favor. In addressing the first

factor, Defendants argue that the crime here was minor but was compounded by its repeated

nature. (ECF No. 12 at 17.) This Court finds that the “severity” of the purported crime was

low according to the allegations in the Complaint. Plaintiff was arrested for larceny of keys,

and while larceny is a crime, its severity in this case appears minor. Although the Complaint

states that this was Plaintiff’s second time protesting in this manner, the Court is not convinced

that because it happened twice the alleged crime became more severe. See Jones v. Buchanan,

325 F.3d 520, 528 (4th Cir. 2003) (finding that “even in a case in which the plaintiff had

committed a crime, when the offense was a minor one…the first Graham factor weighed in

[the] plaintiff’s favor”) (internal quotations omitted).

The second factor also weighs in Plaintiff’s favor because Plaintiff’s form of protest

posed no safety threat. Defendants argue that Plaintiff is a large man and reacted angrily

toward Defendant Swaringen. (ECF No. 12 at 17.) Plaintiff counters that Defendant

Swaringen is “considerably larger” than him. (ECF No. 19 at 11.) Nothing in the Complaint

shows that Plaintiff posed a safety threat or supports that any safety threat may be based off

the size of either party. Further, the Complaint states that Plaintiff was detained in an area

with little to no people around and he was holding a quarter in his hand. (ECF No. 1 ¶ 20.)

The last factor weighs against Plaintiff. Although Plaintiff alleges that he moved away

from the officer because he was attempting to put space in between them, this Court finds

that even when viewing the facts in the Complaint as true, a reasonable officer in Defendant

Swaringen’s position could have assumed he was trying to evade arrest. Even in taking

Plaintiff’s motivations for moving away as true, he moved away after Defendant Swaringen

notified him that he was being detained.

Therefore, this Court finds that the first two Graham factors weigh in Plaintiff’s favor,

and the last one does not. However, the three Graham factors are not “exclusive.” Kingsley v.

Hendrickson, 576 U.S. 389, 397 (2015). Courts must consider “the amount of force that is

necessary in a particular situation.” Graham, 490 U.S. at 497. Accordingly, this Court will also

consider the other circumstance present in this case, Plaintiff’s preexisting medical condition.

Plaintiff alleges that Defendant Swaringen’s actions during the arrest caused him pain

due to his physical injury of torn tendons in his shoulders. (ECF No. 1 ¶¶ 26-27.) According

to the Complaint, Plaintiff repeatedly made Defendant Swaringen aware of his medical

condition, repeatedly told Defendant Swaringen that he was in pain, and requested to be

handcuffed in a different way. (Id. ¶ 28.) It is important to note that “the right to make an

arrest or investigatory stop necessarily carries with it the right to use some degree of physical

coercion or threat thereof to effect it.” Graham, 490 U.S. at 396. However here, the degree

of physical coercion continued after Plaintiff was already placed in handcuffs, as described

below.

Courts have found that handcuffing an arrestee behind their back can constitute a

constitutional violation if the handcuffing causes pain and injury as a result of a known medical

condition. See Stutzman v. Krenik, 350 F. Supp. 3d 366, 382 (D. Md. Oct. 10, 2018) (finding a

claim for excessive force where the Plaintiff had a visible medical condition, requested to be

handcuffed in front his body, and screamed in pain when handcuffed behind his back).

Defendants do not dispute that Defendant Swaringen not only handcuffed Plaintiff, but placed

his hands in a position that Defendant’s labelled as a “twist lock.”2 Given the two Graham

factors that weigh in Plaintiff’s favor, Plaintiff’s medical condition that he made known to

Defendant Swaringen, and the use of the twist lock, the Complaint sufficiently alleges a claim

of excessive force pertaining to the arrest.

Thus, on this claim, Plaintiff has sufficiently alleged a violation of a right secured by

the Constitution, which, as stated above, satisfies the first element of a § 1983 claim. The

Court will now determine whether Plaintiff’s Complaint sufficiently alleges the second element

of a § 1983 claim, that the violation was committed by a person acting under the color of state

law.

As previously stated, an individual acts under color of state law when exercising or

misusing power, “possessed by virtue of state law.” Classic, 313 U.S. at 326. Plaintiff in his

Complaint alleges Defendant Swaringen was employed by Gilford County during the relevant

time as a Deputy. (ECF No. 1 ¶ 4.) Therefore, the power Defendant Swaringen possessed

by virtue of state law is from his job as a Deputy of Guilford County Sheriff’s Office.

Further, “a public employee acts under color of state law while acting in his official

capacity or while exercising his responsibilities pursuant to state law.” West, 487 U.S. at 49.

Plaintiff alleges excessive force against Defendant Swaringen in his individual capacity;

therefore, this Court will examine whether he was “exercising his responsibilities pursuant to

state law.” See id. Under this claim, the Complaint details Defendant Swaringen’s alleged

actions during his arrest of Plaintiff. This meets the second element because the arrest of an

individual is a law enforcement officer’s exercise of a responsibility pursuant to state law. See

Pruitt v. Purnell, 360 F. Supp. 2d 738, 744 (E.D.N.C. Jan. 5, 2005) (finding that the threat of

arrest is one of the purest acts of state authority). Accordingly, Plaintiff has sufficiently alleged

the second element of his § 1983 claim.

In viewing the allegations in the Complaint in the light most favorable to Plaintiff, the

Court finds that he has stated a plausible claim of excessive force under the Fourth

Amendment.

4. Plaintiff Fails to State a Claim of Unreasonable Search

With respect to Plaintiff’s third cause of action, the Court will only address whether

Plaintiff has sufficiently alleged a claim of unreasonable search under the Fourth Amendment,

in that the Fourteenth Amendment claim has previously been dismissed. Plaintiff alleges that

Defendant Swaringen, in his individual capacity, conducted an unreasonable search in

violation of his Fourth Amendment rights. (ECF No. 1 ¶¶ 76-80.) Defendants argue that this

claim should be dismissed because the search was a constitutional search incident to arrest.

(ECF No. 12 at 18.)

The Fourth Amendment provides “[t]he right of the people to be secure in their

persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be

violated.” U.S. Const. amend. IV. A search under the Fourth Amendment occurs when the

government invades a person’s constitutionally protected reasonable expectation of privacy.

Katz v. United States, 389 U.S. 347, 351 (1967). A warrantless search is invalid unless it falls

within one of the exceptions to the Fourth Amendment’s warrant requirement. Flippo v. West

Virginia, 528 U.S. 11, 13 (1999) (citation omitted).

One of the exceptions to the warrant requirement is a “search incident to arrest.”

United States v. Robinson, 414 U.S. 218, 224 (1973). “When an arrest is made, it is reasonable

for the arresting officer to search the person arrested in order to remove any weapons that the

latter might seek to use in order to resist arrest or effect his escape.” Chimel v. California, 395

U.S. 752, 762-63 (1969). Additionally, officers can search for and seize any evidence on the

arrestee’s person to prevent its concealment or destruction. Id. at 763.

Here, Plaintiff alleges that Defendant Swaringen violated his Constitutional rights when

he searched his person after his arrest. (ECF No. 1 ¶ 79.) The Complaint alleges that this

search was unconstitutional because Defendant Swaringen did not have probable cause for

the arrest and had no search warrant. (Id.)

As the Court has concluded that the Complaint fails to state a claim that Defendant

Swaringen lacked probable cause to arrest Plaintiff, this search amounts to a search incident

to arrest. See United States v. Currence, 446 F.3d 554, 556 (4th Cir. 2006) (holding that “when

law enforcement officers have probable cause to make a lawful custodial arrest, they may —

incident to that arrest and without a warrant — search the arrestee’s person and the area within

his immediate control.”) (internal quotations omitted) (citations omitted).

Thus, the Court finds that Plaintiff does not allege sufficient facts to state a claim for

unlawful search.

5. Plaintiff Fails to State a Claim of Retaliatory Arrest

With respect to Plaintiff’s fourth cause of action, the Court will only address whether

Plaintiff has sufficiently alleged a claim of retaliatory arrest under the First Amendment, in

that the Fourteenth Amendment claim has previously been dismissed. Plaintiff alleges that

Defendant Swaringen in his individual capacity violated his First Amendment rights by

arresting him in retaliation of his protest. (ECF No 1 ¶¶ 81-84.) Defendants argue that

Plaintiff’s claim of retaliatory arrest should be dismissed because Plaintiff’s acts were not forms

of expression and his arrest is supported by probable cause. (ECF No. 12 at 19.) Plaintiff

counters that he was arrested while conducting a peaceful protest and there was no probable

cause to arrest. (ECF No. 19 at 13.)

“[T]he First Amendment prohibits government officials from subjecting an individual

to retaliatory actions” because they engaged in protected speech. Hartman v. Moore, 547 U.S.

250, 256 (2006). When an official takes adverse action against someone based on retaliation,

the injured person may seek relief by bringing a First Amendment claim. Id. To bring a

retaliatory arrest claim, Plaintiff must show (1) the subjective animus of an officer, (2) a

subsequent injury, and (3) that the decision to press charges was objectively unreasonable

because it was not supported by probable cause. Nives v. Bartlett, 587 U.S. 391, 400-01 (2019).

Regardless of Defendant Swaringen’s subjective animus or Plaintiff’s subsequent

injuries, Plaintiff failed to allege a lack of probable cause in this case, the third element of a

retaliatory arrest claim. Here, as the facts in the Complaint support that Defendant Swaringen

had probable cause to arrest Plaintiff, the retaliatory arrest charge fails as a matter of law. See

Hulbert v. Pope, 70 F.4th 726, 738 (4th Cir. 2023) (“[a] First Amendment retaliatory arrest claim

fails as a matter of law if there was probable cause for the arrest.”) (internal quotations omitted)

(citations omitted).

Therefore, Plaintiff fails to sufficiently allege a claim of retaliatory arrest.

6. Plaintiff Fails to State a Claim of Deliberately Indifferent Policies

With respect to Plaintiff’s fifth cause of action, the Court will only address whether

Plaintiff has sufficiently alleged a claim of deliberately indifferent policies under the Fourth

Amendment, in that the Fourteenth Amendment claim has previously been dismissed.

Plaintiff alleges that Sheriff Rodgers engaged in deliberately indifferent policies, practice,

customs, hiring, and training in violation of the Fourth Amendment. (ECF No. 1 ¶ 84.)

Plaintiff filed this claim against Sheriff Rodgers in his official capacity; therefore, this claim is

against the GCSO, as discussed above. Defendants argue that this claim should be dismissed

because Plaintiff has not alleged any policy attributable to Sheriff Rodgers, there is no

widespread pattern or practice of misconduct, and he fails to allege specific deficiencies in

training, among other things. (ECF No. 12 at 20-23.)

A claim for deliberately indifferent policies or practices against a municipality in

violation of one’s constitutional rights is analyzed as a ‘Monell claim.’ Under Monell, a

municipality is liable only for its own illegal actions. Monell v. Dep’t Soc. Servs. Of City of New

York, 436 U.S. 658, 691 (1978). Municipalities are liable under § 1983 based on

unconstitutional actions of individual defendants where those defendants were executing an

official policy or custom of the local government that violated plaintiff’s rights. Id. at 690-92.

Plaintiffs seeking to “impose liability on a municipality must…adequately plead and prove the

existence of an official policy or custom that is fairly attributable to the municipality and that

proximately caused the deprivation of their rights.” Jordan by Jordan v. Jackson, 15 F.3d 333, 338

(4th Cir. 1994).

Although the Complaint is full of instances that Plaintiff believes Sheriff Rodgers failed

to act, Plaintiff does not clearly allege any specific policies or customs that were the proximate

cause of the deprivation of his rights, as required for a Monell claim. A policy or custom for

which a municipality may be held liable for can be shown: “(1) through an express policy, such

as a written ordinance or regulation; (2) through the decisions of a person with final

policymaking authority; (3) through an omission, such as a failure to properly train officers,

that ‘manifest[s] deliberate indifference to the rights of citizens’; or (4) through a practice that

is so ‘persistent and widespread’ as to constitute a ‘custom or usage with the force of law.’”

Lytle v. Doyle, 326 F. 3d 463, 471 (4th Cir. 2003) (quoting Carter v. Morris, 164 F.3d 215, 218

(4th Cir. 1999)).

Plaintiff does not allege in his Complaint either of the first two examples of a policy or

custom. He does not allege any express policies or decisions of persons with policymaking

authority. (See ECF No 1 ¶¶ 85-97.) However, it does appear that Plaintiff has alleged the

other two examples of a policy or custom—that Defendants should be held liable through an

omission and through a widespread practice.

First, Plaintiff alleges that GCSO should be held liable through a widespread and

persistent practice. Plaintiff states that members of the GCSO violated city ordinances related

to parking. (ECF No. 1 ¶ 90.) Plaintiff has allegedly filed over fifty complaints against

employees of the GCSO for parking in no parking or tow away zones. (Id. ¶ 91.) He alleges

that he was informed that “no GCSO employees would be reprimanded as it was a company

wide violation, meaning the violations were so widespread amongst the GCSO, that

individuals caught on camera violating this state statue would not be disciplined.” (Id.)

Plaintiff also points to instances of questionable conduct or allegations of misconduct against

the GSCO that have appeared in lawsuits. (Id. ¶ 87.) During Sheriff Rodgers’ tenure, Plaintiff

alleges that there have been four federal lawsuits filed alleging various violations of civil rights.

(Id.) Prior to Sheriff Rodgers’ tenure, Plaintiff alleges that there have been at least twelve

lawsuits. (Id. ¶ 88.)

To state a claim of deliberately indifferent polices, Plaintiff cannot simply assert

violations, he must also allege a “close causal link” between the “training deficiency...and [the]

specific violation.” Spell v. McDaniel, 824 F.2d 1380, 1390 (4th Cir. 1987). The “affirmative

link” between the policy or custom and the violation “must be proximate, not merely but for

causation-in-fact.” Id. at 1388 (internal quotations omitted) (citations omitted).

Here, Plaintiff does not allege a causal connection between the alleged policies and

customs and his alleged constitutional violation. Plaintiff does not allege a close causal link

between the lawsuits he cites to and the instant matter. (ECF No. 1 ¶¶ 87-88.) He only states

that the lawsuits should have “put [Sheriff] Rodgers on notice of the need for different or

additional training.” (Id. ¶ 89.) Additionally, Plaintiff does not allege any link between the

fifty parking complaints and his injury. (See id. ¶¶ 85-97.)

Therefore, Plaintiff fails to allege a claim of deliberately indifferent policies in violation

of his rights under the Fourth Amendment.

7. Plaintiff Fails to State a Claim of Supervisory Liability

Plaintiff’s sixth cause of action is supervisory liability against Sheriff Rodgers in his

individual and official capacities, and his twelfth cause of action is supervisory liability against

Defendant Walker in his individual and official capacities. (ECF No. 1 ¶¶ 97, 120.)

Defendants argue that Plaintiff’s allegations toward Sheriff Rodgers fail for the same reasons

as his Monell claim, and that his claims against Defendant Walker fail because they are

redundant and qualified immunity should apply. (ECF No. 12 at 24, 28.)

Plaintiff’s claims against both Defendants in their official capacity fail because

supervisory liability claims are brought against Defendants in their individual capacity not their

official capacity. Simmons v. Corizon Health, Inc., 122 F. Supp. 3d 255, 267 (M.D.N.C. Aug. 4,

2015) ((citing Clay v. Conlee, 815 F.2d 1164, 1170 (8th Cir. 1987)). Therefore, both supervisory

liability claims in Defendants official capacity are dismissed. The Court will now analyze the

claim under each Defendants individual capacity.

Supervisory officials may be held liable for the constitutional injuries caused by their

subordinates. Slakan v. Porter, 737 F.2d 368, 372 (4th Cir. 1984). There are three elements

necessary to state a claim for supervisory liability under § 1983: “(1) that the supervisor had

actual or constructive knowledge that his subordinate was engaged in conduct that posed a

pervasive and unreasonable risk of constitutional injury to citizens like the plaintiff; (2) that

the supervisor’s response to that knowledge was so inadequate as to show deliberate

indifference to or tacit authorization of the alleged offensive practices; and (3) that there was

an affirmative causal link between the supervisors inaction and the particular constitutional

injury suffered by the plaintiff.” Shaw v. Stroud, 13 F.3d 791, 799 (4th Cir. 1994) (internal

quotations omitted) (citations omitted).

To establish the first element, Plaintiff must show the supervisors knowledge of the

conduct engaged in by a subordinate where the conduct poses a pervasive and unreasonable

risk of constitutional injury to plaintiff. Shaw, 13 F. 3d at 799 (citation omitted). To show that

the conduct posed a pervasive and unreasonable risk, plaintiff must show that the conduct is

“widespread, or at least has been used on several different occasions, and…the conduct

engaged in by the subordinate poses an unreasonable risk of harm of constitutional injury.”

Id. To establish the second element a plaintiff may demonstrate a “supervisor’s continued

inaction in the face of documented widespread abuses.” Slakan, 737 F. 2d at 373. For the last

element, causation can be established by proximate cause. Shaw, 13 F.3d at 799.

a. Plaintiff Does Not Sufficiently State a Claim for Supervisory

Liability Against Sheriff Rodgers

Regarding Sheriff Rodgers, Plaintiff’s basis for the supervisory liability charge is that

“employees of the GCSO had numerous allegations of misconduct, excessive force, and false

that Sheriff Rodgers knew about these allegations and took no action to prevent further

misconduct by employees. (Id. ¶ 101.)

Plaintiff fails to allege the first element of supervisory liability because the previous

lawsuits he alleges Sheriff Rodgers is named in do not pose a pervasive and unreasonable risk

of constitutional injury to Plaintiff. Plaintiff lists four lawsuits that took place during Sheriff

Rodgers tenure and states “[t]he nature of these lawsuits alleges numerous violations of civil

rights.” (ECF No. 1 ¶ 87.) Out of the four complaints, three of them have allegations relating

to incidents in Guilford County detention centers and jails, none of which is relevant here. See

Jones v. Alvarez, No. 1:19CV930, 2021 WL 796509, at *5 (M.D.N.C. Mar. 2, 2021) (finding that

plaintiff failed to meet the first element of supervisory liability against defendants, Greensboro

police officers, because he provided articles that were not relevant to his injuries and did not

establish a pattern around when the events in question took place). Plaintiff is unable to

establish that Sheriff Rodgers’ knowledge of any of these lawsuits posed a pervasive and

unreasonable risk of injury to Plaintiff.

Plaintiff also fails to sufficiently allege the second element, that Sheriff Rodgers

response was so inadequate that it shows deliberate indifference to or tacit authorization of

the allegations of misconduct excessive force, and false arrest. Plaintiff does not plausibly

assert any continued inaction that Sheriff Rodgers engaged in similar to Plaintiff’s injuries. See

Stafford v. Barnes, No. 1:14cv267, 2014 WL 5819380, at *6 (M.D.N.C. Nov. 10, 2014) (finding

that plaintiff failed to allege sufficiently deliberate indifference where “there [we]re simply no

allegation of documented abuse”).

Lastly, Plaintiff does not demonstrate a causal link between Sheriff Rodgers’ alleged

inaction and Defendant Swaringen’s conduct, the third element of his supervisory liability

claim. Plaintiff merely makes conclusions that Sheriff Rodgers “took no action, or no effective

action.” See Painter’s Mill Grille, LLC v. Brown, 716 F.3d 342, 350 (4th Cir. 2013) (finding that

“mere conclusory and speculative allegations” are insufficient to survive a Rule 12(b)(6)

motion to dismiss). Therefore, Plaintiff’s supervisory liability claim against Sheriff Rodgers is

dismissed.

b. Plaintiff Fails to State a Claim of Supervisory Liability Against

Defendant Walker

Regarding Defendant Walker, Plaintiff alleges that Defendant Walker was aware of

Defendant Swaringen’s violation of his constitutional rights and acquiesced by providing him

with an alternative charge to justify a violation of Plaintiff’s rights. (ECF No. 1 ¶ 122.) Plaintiff

fails to sufficiently allege the first element, actual or constructive knowledge. Plaintiff states

that Defendant Walker was told about Defendant Swaringen attempting to charge Plaintiff

with larceny, and Defendant Walker knew that the action did not constitute larceny. However,

Plaintiff does not allege that the conduct posed a pervasive and unreasonable risk. (See ECF

No. 1 ¶ 122.) Plaintiff does not show that the alleged conduct occurred on several different

occasions. See Shaw, 13 F. 3d at 799 (finding that to show a pervasive and unreasonable risk,

plaintiff must show that the conduct is “widespread, or at least has been used on several

different occasions”) (citation omitted).

Similarly, Plaintiff does not allege that Defendant Walker’s inadequate response

constitutes deliberate indifference, the second element, because this is only one instance of

Defendant Walker taking no action to stop the alleged violation of Plaintiff’s rights. To

sufficiently allege the second element Plaintiff would have to allege that there was “continued

inaction.” Slakan, 737 F. 2d at 373. Although Plaintiff has alleged previously in his Complaint

that there have been other civil rights lawsuits, nowhere in his Complaint does he associate

those lawsuits with Defendant Walker.

Lastly, Plaintiff fails to allege an affirmative causal link, the third element, between

Defendant Walker’s alleged inaction and Defendant Swaringen’s conduct. Plaintiff states that

Defendant Walker knew that larceny was not the correct charge and did not “attempt to

correct Defendant Swaringen.” (ECF No. 1 ¶ 122.) However, as stated this was only one

instance of inaction. As Plaintiff fails to sufficiently allege the elements of supervisory liability

pertaining to Defendant Walker, his supervisory liability claim is dismissed.

c. Defendant Walker is Entitled to Qualified Immunity

Defendants also argue that Defendant Walker is entitled to qualified immunity on this

claim. Although this Court has found that the claim should be dismissed, it will still analyze

whether qualified immunity exists.

As stated above, in analyzing qualified immunity courts must answer two questions: (1)

has the plaintiff established that, when viewing the evidence most favorable to him, the

officers violated his constitutional rights; and if the answer to the first inquiry is in favor of

the Plaintiff, then (2) have the officers shown that the asserted rights were not clearly

established by law at the time of the interaction. Stanton v. Elliot, 25 F.4th 227, 233 (4th Cir.

2022). Here, Plaintiff fails to meet the first prong because he failed to sufficiently allege that

Defendant Walker violated his constitutional rights. As Plaintiff cannot meet his burden on

the first element, the Court need not address the second, therefore, Defendant Walker is

entitled to qualified immunity on this claim.

Accordingly, this Court finds that Plaintiff’s federal claims for arrest without probable

cause, unreasonable search, retaliatory arrest, deliberately indifferent policies, and supervisory

liability are dismissed. Plaintiff’s claim for excessive force remains. The Court will now

analyze Plaintiff’s state law claims.

D. State Law Claims for Relief

Plaintiff alleges five claims under North Carolina state law. As the Court has found

that one of Plaintiff’s § 1983 claims survive, it will exercise supplemental jurisdiction over

Plaintiff’s claims under state law pursuant to 28 U.S.C. § 1367.

Further, as stated above, the Court has found that probable cause existed to arrest

Plaintiff, so his state law claims for false arrest and imprisonment, and malicious prosecution

are dismissed as a matter of law. See City of Dunn, 708 F. Supp. 3d at 752. Plaintiff’s remaining

state law claims are assault, battery, and negligence. (See ECF No. 1 at ¶¶ 109-120.) These

claims are asserted against Sheriff Rodgers in his official capacity, and Defendant Swaringen

in his individual capacity. (Id.)

Regarding Plaintiff’s claims against Sheriff Rodgers, governmental immunity shields

municipalities and their officers or employees thereof who are sued in their official capacities

from suits based on torts committed while performing governmental functions. Taylor v.

Ashburn, 436 S.E.2d 276, 278 (N.C. Ct. App. 1993) (citations omitted). Police services and the

supervision of police officers constitutes governmental functions in North Carolina. See

Coleman v. Cooper, 366 S.E.2d 2, 5 (N.C. Ct. App. 1988). Therefore, all state law claims against

Sheriff Rodgers in his official capacity are dismissed.

This Court will now analyze Plaintiff’s remaining claims against Defendant Swaringen

in his individual capacity.

1. Plaintiff Sufficiently Alleges a Claim of Assault and Battery

Plaintiff asserts claims of assault and battery against Defendant Swaringen in his

they contend that, “probable cause supported Plaintiff’s arrest and the amount of force used

by [Defendant] Swaringen was not only reasonable but quite limited.” (ECF No. 12 at 26.)

“An assault is an offer to show violence to another without striking him, and a battery

is the carrying of the threat into effect by the infliction of a blow.” Dickens v. Puryear, 276

S.E.2d 325, 330 (N.C. 1981) (citations omitted). To prove a claim of assault and battery against

a law enforcement officer, a plaintiff must “show that the officer used force against plaintiff

which was excessive under the given circumstances.” Glenn-Robinson v. Acker, 538 S.E.2d 601,

615 (N.C. Ct. App. 2000) (citations omitted). Although a law enforcement officer is privileged

to use lawful force, he is nevertheless liable for assault if he uses force greater than is reasonably

necessary under the circumstances. See Jenkins v. Averett, 424 F.2d 1228, 1231 (4th Cir. 1970)

(applying North Carolina law). The Fourth Circuit has recognized that “the jurisprudence

governing Fourth Amendment excessive force actions also controls a party’s actions for

battery and gross negligence.” Njang v. Montgomery Cnty., Md., 279 F. App’x 209, 216 (4th Cir.

2008) (quotations omitted) (citations omitted).

Plaintiff alleges that he endured “grabbing/slamming against a door, applying pain

compliance, and striking,” at the hands of Defendant Swaringen. (ECF No. 1 at ¶ 110.)

Plaintiff states that he was in a reasonable apprehension of immediate harm, and that

Defendant Swaringen’s actions “constituted harmful and offensive touching.” (Id. at ¶ 113.)

These factual allegations, which must be taken as true, Iqbal, 566 U.S. at 678, state a sufficient

claim that Defendant Swaringen used excessive force, supporting Plaintiff’s claims for assault

and battery. Defendants’ motion to dismiss, as it pertains to these claims, will be denied.

2. Plaintiff Fails to State a Claim of Negligence

Plaintiff’s Complaint alleges a claim of negligence against Defendant Swaringen in his

individual capacity. Defendants contend that this claim should be dismissed as public official

immunity bars this claim against Defendant Swaringen in his individual capacity. (ECF No.

12 at 27.) Defendants are correct.

For a Plaintiff to hold a public official liable for state common law claims, they must

allege and prove corruption or malice. Schlossberg v. Goins, 540 S.E.2d 49, 56 (N.C. Ct. App.

2000) (holding that as public officials, police officer, “enjoy absolute immunity from personal

liability for their discretionary acts done without corruption or malice.”) (citation omitted).

Allegations of negligence when the official is performing governmental duties involving the

exercise of discretion is insufficient. Campbell v. Anderson, 576 S.E.2d 726, 730 (N.C. Ct. App.

2003) (finding that public official immunity protects public officials from individual liability

for mere negligence in the performance of governmental or discretionary duties) (citation

omitted).

As Plaintiff’s Complaint alleges facts that occurred while Defendant Swaringen was

performing governmental duties, immunity applies. The Complaint states that Defendant

Swaringen owed Plaintiff a duty to perform the duties of Swaringen’s commands, “in a manner

that would not, directly, or indirectly, unlawfully assault, battery, harm, oppress, harass, and

otherwise subject Plaintiff to the conduct alleged in this complaint.” (ECF No. 1 at ¶ 116.)

Plaintiff fails to allege that Defendant Swaringen acted with corruption or malice.

For the reasons stated above, the Court finds that Plaintiff’s state law claim of

negligence is dismissed.

E. Punitive Damages

Finally, Defendants moved to dismiss Plaintiff’s request for punitive damages. While

Plaintiff requested punitive damages for all his claims, Plaintiff’s only surviving claims are

excessive force, assault, and battery. Therefore, these are the claims that will be analyzed for

punitive damages.

Punitive damages under § 1983 are available for conduct involving “reckless or callous

indifference to the federally protected rights of others, as well as for conduct motivated by evil

intent.” Cooper v. Dyke, 814 F.2d 941, 948 (4th Cir. 1987) (internal quotations omitted)

(citations omitted). “The callous indifference required for punitive damages is essentially the

same as the deliberate indifference required for a finding of liability on [a] § 1983 claim.” Id.

Under North Carolina law, punitive damages may be awarded when compensatory damages

are awarded and one or more of the following factors is present: (1) fraud; (2) malice; or (3)

willful or wanton conduct. N.C. Gen. Stat. § 1D-15(a) (2006).

For Plaintiff’s claims of excessive force, assault, and battery, this Court finds them

sufficient to support a claim for punitive damages. Plaintiff’s Complaint alleges facts sufficient

to support an inference of wanton conduct under North Carolina law. Wanton conduct is

one performed with a “wicked purpose or … done needlessly, manifesting a reckless

indifference to the rights of others.” Benton v. Hillcrest Foods, Inc., 524 S.E.2d 53, 60 (N.C. Ct.

App. 1999) (internal quotations omitted) (citations omitted). Plaintiff alleges that during his

arrest, Defendant Swaringen applied pain techniques “by hyper-extending Plaintiff’s wrist and

crushing Plaintiff’s hand with such force as to cause the fingers of the hand being bent to

collapse upon themselves.” (ECF No. 1 at ¶ 22.) Upon Plaintiff stating that he was in pain,

Plaintiff alleges that Defendant Swaringen stated “oh…that’s wonderful.” (Id. at ¶ 23.) Thus,

Plaintiff’s Complaint alleges sufficient conduct to grant punitive damages on his claims of

excessive force, assault, and battery.

IV. CONCLUSION

Accordingly, this Court finds that Plaintiff’s claims for arrest without probable cause,

unreasonable search, retaliatory arrest, deliberately indifferent policies, supervisory liability,

false arrest and imprisonment, malicious prosecution, and negligence should be dismissed.

Plaintiff’s claims for excessive force in violation of the Fourth Amendment against Defendant

Swaringen, assault against Defendant Swaringen, and battery against Defendant Swaringen

remain.

For the reasons stated herein, the Court enters the following:

ORDER

IT IS THEREFORE ORDERED that Defendants’ Motion to Strike, (ECF No. 20),

is DENIED.

IT IS FURTHER ORDERED that Plaintiff’s Motion to for Delayed Filing, (ECF No.

23), is GRANTED.

IT IS FURTHER ORDERED that Defendants’ Motion to Dismiss, (ECF No. 11),

is GRANTED in part and DENIED in part. The motion is GRANTED in that the

following claims are, and shall be, DISMISSED: arrest without probable cause, unreasonable

search, retaliatory arrest, deliberately indifferent policies, supervisory liability, false arrest and

imprisonment, malicious prosecution, and negligence. The motion is DENIED in that the

following claims shall survive: excessive force, assault, and battery.

This, the 11th day of February 2025.

/s/ Loretta C. Biggs