WALL v. GULLEDGE

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

FELISHA WALL, )

)

Plaintiff, )

)

v. )

)

MARK GULLEDGE, individually and )

in his official capacity; J.R. )

DENNIS SMITH, individually and ) 1:22-cv-31

in his official capacity; JAMES )

P. DAVIS, individually and in )

his official capacity; DUSTIN )

CAIN, individually and in his )

official capacity; NORVIN L. )

FORRESTER, individually; )

HOLLY SMITH, individually and )

in her official capacity; and )

OHIO CASUALTY INSURANCE COMPANY,)

)

Defendants. )

MEMORANDUM OPINION AND ORDER

OSTEEN, JR., District Judge

Before this court is a Motion for Partial Summary Judgment

filed by Defendants J.R. Dennis Smith, James Davis, Dustin Cain,

and Norvin Forrester, (Doc. 39). For the reasons stated herein,

Defendants’ motion will be granted in part and denied in part.

I. FACTUAL BACKGROUND

This court “view[s] the evidence in the light most

favorable to the nonmoving party and refrain[s] from weighing

the evidence or making credibility determinations.” Sedar v.

Reston Town Ctr. Prop., LLC, 988 F.3d 756, 761 (4th Cir. 2021)

(citation omitted). “The evidence of the non-movant is . . .

believed, and all justifiable inferences are . . . drawn in

[her] favor.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255

(1986).

Plaintiff’s claims for relief against Defendants J.R.

Smith, Davis, Cain, and Forrester (collectively the “Deputy

Defendants”) arise from events that occurred in the Richmond

County Magistrate’s office, parking lot, and nearby jail on

December 2, 2018. (Pl.’s Ex. 1, Shamica Wall Decl. (Doc. 43-1)

¶¶ 3–4, 7; Pl.’s Ex. 4, Felisha Wall Dep. (Doc. 43-4) at 29.)1

On this date, Plaintiff Felisha Wall and three of her

sisters accompanied their father, William Wall, to the

magistrate’s office for him “to turn himself in” on outstanding

charges. (Pl.’s Ex. 4, Felisha Wall Dep. (Doc. 43-4) at 29;

Pl.’s Ex. 1, Shamica Wall Decl. (Doc. 43-1) ¶ 4.) Believing that

“things can be unfair in Richmond County,” the sisters “all

wanted to kind of take him and be witnesses and make sure

anything [sic] happened to him.” (Pl.’s Ex. 4, Felisha Wall Dep.

(Doc. 43-4) at 29.)

1 All citations in this Memorandum Opinion and Order to

documents filed within the court refer to the page numbers

located at the bottom right-hand corner of the documents as they

appear on CM/ECF.

When they arrived at the magistrate’s office, the

magistrate — Defendant Holly Smith2 — was not present, so one of

Plaintiff’s sisters “called the sheriff to let him know that we

were down there.” (Id. at 30.) Soon after, Holly Smith and “a

bunch of sheriffs” — including Defendants J.R. Smith, Cain,

Forrester,3 and Davis — “pulled up.” (Id. at 32; see also Pl.’s

Ex. 10, J.R. Smith Dep. (Doc. 43-10) at 25–26.)

Defendant J.R. Smith attests that when Holly Smith arrived,

Plaintiff and her sisters began yelling at Holly Smith and

calling her “a scared bitch,” “intend[ing] to intimidate and

belittle [her].” (Defs.’ Ex. 1B, J.R. Smith Dep. Excerpts (Doc.

40-4) at 3.) Plaintiff expressly denies that she called Holly

Smith names or threatened her at any point and does not recall

her sisters doing so either. (See Pl.’s Ex. 4, Felisha Wall Dep.

2 Plaintiff’s claims against Defendant Holly Smith are not

the subject of this Motion for Partial Summary Judgment. (See

generally Doc. 39.)

3 Plaintiff states in her deposition that Defendant

Forrester arrived alongside this initial group of officers.

(Pl.’s Ex. 4, Felisha Wall Dep. (Doc. 43-4) at 32.) In his

deposition, Defendant J.R. Smith could not recall whether

Defendant Forrester was there at that time or showed up later.

(Defs.’ Ex. 1B, J.R. Smith Dep. Excerpts (Doc. 40-4) at 4.)

Defendant Forrester himself attests that he showed up later —

around the same time those officers escorted Mr. Wall over to

the jail from the magistrate’s office. (Pl.’s Ex. 9, Forrester

Dep. (Doc. 43-9) at 40.) Regardless, it is undisputed that

Defendant Forrester was present on the scene at the times

relevant to the claims that have been brought against him.

(Doc. 43-4) at 65–66, 107-110; see also Pl.’s Ex. 1, Shamica

Wall Decl. (Doc. 43-1) ¶¶ 5, 7.)

After Holly Smith and the officers arrived, Plaintiff, her

sisters, and her father, accompanied them into the magistrate

building; Holly Smith entered her office and called Mr. Wall in

to join her, while Plaintiff, her sisters, and the officers

waited outside Holly Smith’s office in a common area. (Pl.’s Ex.

4, Felisha Wall Dep. (Doc. 43-4) at 35–37; Defs.’ Ex. 1B, J.R.

Smith Dep. Excerpts (Doc. 40-4) at 3.) Defendant J.R. Smith

attests that Plaintiff and her sisters were “cursing and getting

irate” in the waiting room, (Defs.’ Ex. 1B, J.R. Smith Dep.

Excerpts (Doc. 40-4 at 3), and “were told numerous times to

lower their voices,” (id. at 5). Plaintiff disputes these facts,

contending that for “approximately 15 minutes,” while Mr. Wall

was inside the office with Holly Smith, Plaintiff and her

sisters sat in the common area and “engaged in a conversation

with the officers.” (Pl.’s Ex. 4, Felisha Wall Dep. (Doc. 43-4)

at 38–39.) Plaintiff avers that the conversations were

“friendly” and just “general talk.” (Id. at 39–40.)

After 15 minutes, the officers escorted Mr. Wall out of

Holly Smith’s office in handcuffs and walked him “across the

street to the jail.” (Id. at 40–41.) Plaintiff and her sisters

followed behind to “get his items, his wallet, his keys, because

he drove his truck up there,” (id. at 42), and were permitted to

go inside the jail’s lobby to retrieve these items, (id. at 43).

While Plaintiff and her sister Shamica entered the lobby of

the jail to retrieve Mr. Wall’s items, two of Plaintiff’s other

sisters, Diamond and Shaneequah Wall, remained outside. (Id. at

43.) Plaintiff “heard [Diamond] scream [and] went outside to see

what was going on.” (Id. at 44.) Diamond told Plaintiff that an

officer “just put his hands on me.” (Id.) Plaintiff remembers

that Diamond “was like, really, really upset.” (Id.) At this

point, Defendant J.R. Smith “told [the sisters] to leave.”

(Id. at 45.)4 Around this time, Plaintiff also began filming the

events with her phone. (Id. at 46.) The video recording she

produced was offered as an exhibit, (see Pl.’s Ex. 8, Video

(Doc. 43-8)), and manually filed with this court, (see Doc. 42).

4 The parties offer disputed accounts of how many times the

sisters were asked to leave, which officers — if more than one —

made the request, and how expeditiously the sisters complied

with the request(s). For example, Defendant Forrester states

that “[a]ll the deputies that were there asked them to leave on

several occasions.” (Defs.’ Ex. 1C, Forrester Dep. Excerpts

(Doc. 40-5) at 8.) The officers “wanted them to the leave [the]

magistrate’s office and leave the parking lot because they were

yelling and screaming.” (Id.) The officers “gave [the sisters]

an opportunity to leave,” (Pl.’s Ex. 9, Forrester Dep. (Doc. 43-

9) at 43), and then arrested them as “[t]hey were walking

towards the street,” (id. at 97). In accord with Defendant

Forrester’s deposition, Defendant J.R. Smith attests that while

Mr. Wall was being “walked across to the jail and processed,”

the “Wall girls stood between the Magistrate's Office and the

jail cursing, hollering, screaming, and was told at that point

multiple times to leave, that their business there was done.”

(Defs.’ Ex. 1B, J.R. Smith Dep. Excerpts (Doc. 40-4) at 5; see

also id. at 9–10.)

However, Plaintiff’s sister, Shamica, states in her

declaration that Deputy Smith was “the only officer to ask us to

leave, and he only asked once.” (Pl.’s Ex. 1, Shamica Wall Decl.

(Doc. 43-1) ¶ 9.) She also states that when the sisters were

asked to leave, they “complied and start[ed] walking towards our

cars.” (Id. ¶ 10.) Likewise, Plaintiff remembers that only

“Deputy Smith” told the sisters to leave and states that “when

he asked us to leave, we were on the sidewalk . . . [and]

already walking out towards our cars.” (Pl.’s Ex. 4, Felisha

Wall Dep. (Doc. 43-4) at 45–46.)

For the purposes of summary judgment, this court credits

the version of events proffered by Plaintiff. See Anderson, 477

U.S. at 255 (1986). These disputes of fact will require

resolution by a jury at trial.

In the light most favorable to Plaintiff, the video

recording shows the following:

At the start of the video, Plaintiff and her sisters are

standing in a parking lot, (Pl.’s Ex. 8, Video (Doc. 43-8) at

00:00-00:03), and a group of law enforcement officers stand

nearby, facing the sisters. (Id. at 00:05-00:06.) Plaintiff can

be heard telling her sisters, “Come on, let’s go.” (Id. at

00:03-00:04.) She also states, apparently directed at the

officers, “We going, but we going to bail our daddy out

tomorrow.” (Id. at 00:05-00:06.)

As the sisters start to walk away from the officers and

toward the edge of the parking lot, Plaintiff repeats to her

sisters “come on” and “let’s go” several times, as well as

“don’t give them a reason to lock you up.” (Id. at 00:06-00:21.)

After a few seconds, Shamica stops and tells Plaintiff she needs

to go back inside because she still needs to retrieve their

father’s keys. (Id. at 00:30-00:34.) Shamica then turns around

and walks past the officers back into the jail,5 while Plaintiff

and her other two sisters continue to walk away from the

5 Shamica states in her declaration that when she turned

around to reenter the jail, the officers gave her permission to

reenter. (Pl.’s Ex. 1, Shamica Wall Decl. (Doc. 43-1) ¶ 14.) The

Deputy Defendants do not appear to dispute that they provided

Shamica this permission to reenter.

officers, toward the edge of the parking lot and public street.

(Id.)

Plaintiff and her two sisters walk just beyond the

perimeter of the asphalt-paved parking lot and stand on the

sidewalk and street, respectively, next to several parked cars.

(Id. at 00:35-01:14.) Plaintiff calls out, “Hurry up [Sha]mica,”

while the officers look on. (Id. at 00:43.) Plaintiff and her

two sisters appear to remain standing on the sidewalk and

street, just beyond the paved portion of the parking lot,

through the moment that the officers walk forward and place

Plaintiff and her two sisters under arrest. (Id. at 00:35-

01:14.) As one officer approaches Plaintiff, Plaintiff exclaims,

“Oh listen, I’m just recording. I said I’m just recording.” (Id.

at 01:09-01:12.) The officer responds, “Put your hands behind

your back,” and repeats that command several times, while

Plaintiff protests, “I have not done anything.” (Id. at 01:16-

01:25.) At this point, Plaintiff’s phone appears to drop to the

ground and the recording goes dark, (id. at 01:25), although it

continues to capture audio for another thirty seconds. Included

in this audio are voices stating: “You were told to leave,” “I

was leaving,” “No you were just standing here,” “I was just

recording,” (id. at 01:27-01:31), and “I was the one that was

trying to keep the peace,” (id. at 01:42-01:45).

The parties dispute numerous additional facts about the

events that unfolded during and after Plaintiff’s arrest. Those

facts will require resolution at trial but are not relevant to

the motion that is presently before the court.

II. PROCEDURAL HISTORY

Plaintiff filed her Complaint on December 2, 2021, in

Richmond County Superior Court, asserting a total of thirteen

claims for relief against a variety of defendants. (See

generally Compl. (Doc. 2).) Defendants removed the case to

federal court on January 13, 2022. (Doc. 1.)

On January 20, 2022, the Deputy Defendants, Mark Gulledge,

and the Ohio Casualty Insurance Company filed a Partial Motion

to Dismiss. (Doc. 8.) This court issued a Memorandum Opinion on

February 16, 2023, granting in part and denying in part that

motion. (See Doc. 24.)

On January 17, 2024, the Deputy Defendants filed a Motion

for Partial Summary Judgment, (Doc. 39), asking this court to

grant summary judgment on the following claims:

Claim II – First Amendment retaliation brought against

Defendant J.R. Smith in his individual capacity pursuant to 42

U.S.C. § 1983.

Claim IV – Fourth Amendment malicious prosecution brought

against Defendant J.R. Smith in his individual capacity pursuant

to 42 U.S.C. § 1983.

Claim V – Common law malicious prosecution brought against

Defendant J.R. Smith in his individual and official capacity.

Claim VI – Common law battery brought against Defendants

J.R. Smith, Davis, and Cain in their official capacities.

Claim IX – Intentional infliction of emotional distress

brought against Defendant J.R. Smith in his individual and

official capacity.6

The Deputy Defendants also filed a brief in support of

their motion. (Defs.’ Br. (Doc. 40).) Plaintiff responded,

(Pl.’s Resp. (Doc. 43)), and Defendants replied, (Defs.’ Reply

(Doc. 44)).

6 Defendants do not include in their motion for partial

summary judgment a request that this court rule on Claim I,

Fourth Amendment excessive force against all Deputy Defendants

pursuant to 42 U.S.C. § 1984, nor Claim VI, common law battery

against all Deputy Defendants in their individual capacities.

(See Doc. 39 at 1.) These claims will advance to trial.

Additionally, Defendants initially asked this court to rule on

Claim IX, intentional infliction of emotional distress, as

brought against Defendant J.R. Smith in his individual capacity,

(see id.), but concede on reply that “summary judgment is not

appropriate on this claim,” (see Defs.’ Reply (Doc. 44) at 11).

This claim, too, will advance to trial.

III. STANDARD OF REVIEW

Summary judgment is appropriate when “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). See Celotex

Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). This court's

summary judgment inquiry is whether the evidence “is so one-

sided that one party must prevail as a matter of law.” Anderson,

477 U.S. at 251–52. The moving party bears the initial burden of

demonstrating “that there is an absence of evidence to support

the nonmoving party's case.” Celotex Corp., 477 U.S. at 325. If

the “moving party discharges its burden . . . , the nonmoving

party then must come forward with specific facts showing that

there is a genuine issue for trial.” McLean v. Patten Cmtys.,

Inc., 332 F.3d 714, 718–19 (4th Cir. 2003) (citing Matsushita

Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87

(1986)). “Conclusory or speculative allegations do not suffice”

to defeat a motion for summary judgment. Thompson v. Potomac

Elec. Power Co., 312 F.3d 645, 649 (4th Cir. 2002). Summary

judgment should be granted “unless a reasonable jury could

return a verdict for the nonmoving party on the evidence

presented.” McLean, 332 F.3d at 719.

IV. ANALYSIS

Two issues of law and fact underlie the Deputy Defendants’

Motion for Partial Summary Judgement: (1) whether Defendants had

probable cause to arrest Plaintiff; and (2) whether Defendants

are protected by sovereign immunity as to the state law claims

brought against them in their official capacities. (See Defs.’

Br. (Doc. 40) at 3.)

A. Disputes of fact exist regarding whether Defendants

had probable cause to arrest Plaintiff.

“Probable cause is determined by a ‘totality-of-the-

circumstances’ approach.” Hupp v. Cook, 931 F.3d 307, 318 (4th

Cir. 2019) (citation omitted). The Fourth Circuit instructs that

[t]he inquiry turns on two factors: the suspect's

conduct as known to the officer, and the contours of the

offense thought to be committed by that conduct. While

[a court] look[s] to the information available to the

officer on the scene at the time, [the court] appl[ies]

an objective test to determine whether a reasonably

prudent officer with that information would have thought

that probable cause existed for the arrest. Evidence

sufficient to secure a conviction is not required, but

probable cause exists only if there is sufficient

evidence on which a reasonable officer at the time could

have believed that probable cause existed for the

arrest.

Id. (internal quotation marks and citations omitted).

“An official is not entitled to qualified immunity if he or

she deprived an individual of a constitutional right and that

right was clearly established at the time of the violation.” Id.

at 317. Applying the qualified immunity standard to the question

of probable cause, if “a person is arrested when no reasonable

officer could believe . . . that probable cause exists to arrest

that person, a violation of a clearly established Fourth

Amendment right to be arrested only upon probable cause ensues.”

Id. at 318 (emphasis added) (citation omitted). But “[t]he

question of whether a reasonable officer would have known that

the conduct at issue violated that right . . . cannot be decided

on summary judgment if disputes of . . . historical facts

exist.” Id.

On December 2, 2018, the Deputy Defendants arrested

Plaintiff and charged her with disorderly conduct in a public

building, see N.C. Gen. Stat. § 14-132(a)(1), and resisting a

public officer, see N.C. Gen. Stat. § 14-223. (See Pl.’s Dep.

Ex. 5, Magistrate’s Order (Doc. 43-7) at 1; Pl.’s Ex. 11, Public

Records (Doc. 43-11) at 1.)7 Plaintiff argues that a jury could

reasonably conclude that Defendants lacked probable cause at the

7 Plaintiff was also charged with criminal contempt, but it

appears this charge was founded upon her alleged behavior after

she was arrested for disorderly conduct and resisting arrest and

thus is irrelevant to the probable cause inquiry at the time of

her arrest. (See Pl.’s Dep. Ex. 5, Magistrate’s Order (Doc. 43-

7) at 3; Pl.’s Ex. 10, J.R. Smith Dep. (Doc. 43-10) at 33.) To

the extent Plaintiff’s contempt charge arose from her behavior

before her arrest, Plaintiff disputes that she engaged in any

type of disruptive behavior that could give rise to a contempt

charge. (See Pl.’s Ex. 4, Felisha Wall Dep. (Doc. 43-4) at 107-

110; see also Pl.’s Ex. 1, Shamica Wall Decl. (Doc. 43-1) ¶¶ 5,

7.)

time of her arrest. (Pl.’s Resp. (Doc. 43) at 9.) Defendants

concede that genuine disputes of fact about Plaintiff’s behavior

inside and outside the magistrate’s building prevent this court

from finding, at this stage of the proceedings, that the

officers had probable cause to arrest Plaintiff for a disorderly

conduct offense. (See Defs.’ Br. (Doc. 40) at 13.) However,

Defendants argue that undisputed facts “demonstrate that there

was probable cause to arrest Plaintiff on two charges: 1) second

degree trespass, N.C.G.S. § 14-159.13; and 2) resisting a public

officer, N.C.G.S. § 14-223.” (Id.)8 This court will analyze each

argument in turn.

i. Second-Degree Trespass

A person commits second-degree trespass when the person

“remains . . . [o]n premises of another after the person has

been notified not to enter or remain there by . . . another

authorized person.” N.C. Gen. Stat. § 14-159.13(a)(1). “If . . .

the premises are open to the public, the occupants of those

premises have the implied consent of the owner/lessee/possessor

to be on the premises, and that consent can be revoked only upon

8 Although Plaintiff was not actually arrested for second

degree trespass, “[b]ecause probable cause is an objective

standard, an arrest is lawful if the officer had probable cause

to arrest for any offense, not just the offense cited at the

time of arrest or booking.” Dist. of Columbia v. Wesby, 583 U.S.

48, 54 n.2 (2018).

some showing the occupants have committed acts sufficient to

render the implied consent void.” State v. Marcoplos, 154 N.C.

App. 581, 582–83, 572 S.E.2d 820, 821–22 (2002), aff'd, 357 N.C.

245, 580 S.E.2d 691 (2003); see also State v. Nickens, 262 N.C.

App. 353, 365–68, 821 S.E.2d 864, 874–76 (2018) (upholding

second-degree trespass conviction of a defendant who refused to

leave the premises of a DMV after she “raised her voice and

began swearing at [a] DMV employee” and was “told . . . to

leave”). “It follows that one who remains on privately owned

property, without a legitimate purpose, after being asked to

leave by someone with authority, may be convicted of second-

degree trespass.” Marcoplos, 154 N.C. App. at 583, 572 S.E.2d at

822.

Defendants argue that there was probable cause to support a

second-degree trespass arrest because Plaintiff “was asked to

leave the premises,” “did not leave immediately,” and “when she

was arrested, she had not left the public area.” (Defs.’ Br.

(Doc. 40) at 13–15 (citing Defs.’ Ex. 1A, Felisha Wall Dep.

Excerpts (Doc. 40-3) at 16–17.) The Deputy Defendants testify

that “the Wall girls” stood “in the parking lot between the jail

and the Magistrate’s office, [and they] continued causing a

scene, cursing. They were asked to leave, told that their

business there was done. [They] refused to leave, were asked

multiple times to leave.” (Defs.’ Ex. 1B, J.R. Smith Dep.

Excerpts (Doc. 40-4) at 9–10; see also Defs.’ Ex. 1C, Forrester

Dep. Excerpts (Doc. 40-5) at 8.)

However, Plaintiff has come forward with evidence that

disputes several facts material to the second-degree trespass

probable cause inquiry. One, Plaintiff offered evidence that

only Defendant J.R. Smith asked the sisters to leave, and he

only asked once. (Pl.’s Ex. 1, Shamica Wall Decl. (Doc. 43-1) ¶

9; Pl.’s Ex. 4, Felisha Wall Dep. (Doc. 43-4) at 45–47.) Two,

Plaintiff offered evidence that when she received Defendant J.R.

Smith’s order to leave, she and her sisters started to walk, or

alternatively, were already walking, away from the officers and

toward their vehicles parked on the public street. (See Pl.’s

Ex. 1, Shamica Wall Decl. (Doc. 43-1) ¶ 10 (“We all complied and

start[ed] walking towards our cars.”); see Pl.’s Ex. 4, Felisha

Wall Dep. (Doc. 43-4) at 45–46 (“[W]hen he asked us to leave, we

were walking . . . out towards our cars.”).)

The video footage submitted by Plaintiff largely supports

this characterization of events. In this court’s review of the

footage, it can detect no audible request by an officer for the

sisters to leave. Thus, it is reasonable to infer that the order

for the sisters to leave (all parties agree that at least one

order was given) was given sometime before the events depicted

in the video. However, from the record, it is unclear how long

before the video footage that order was given. There is also a

genuine dispute about whether that order was given multiple

times (which would suggest that the sisters did not comply right

away) or only once.

Viewing the evidence in the light most favorable to

Plaintiff, Defendant J.R. Smith ordered the sisters “to leave

the premises” and then the sisters immediately started walking

away, exited the parking lot, and stood on the public sidewalk

and street next to their parked vehicles while they waited for

their sister Shamica (who had been authorized by the officers to

go back inside the jail) to join them. On these facts, “a

reasonably prudent officer” would not have believed that

Plaintiff “remain[ed] . . . [o]n premises of another” after

being notified not to remain there. See N.C. Gen. Stat. § 14-

159.13(a)(1); see also Hupp, 931 F.3d at 318.9

9 In her response brief, Plaintiff also questions whether

the Deputy Defendants had grounds “to revoke the implied consent

[Plaintiff] possessed to remain in [the parking lot].” (Pl.’s

Resp. (Doc. 43) at 10 (citing, inter alia, Marcoplos, 154 N.C.

App. at 582–83, 572 S.E.2d at 821–22)), and whether Defendant

J.R. Smith “‘rescinded’ his instruction for the sisters to

leave” when he permitted Shamica to re-enter the jail, (id. at

11). Plaintiff argues that there are genuine disputes of fact

relevant to both queries. (Id. at 10–11.) Having decided that

genuine disputes of other material fact prevent a finding as to

probable cause, this court will forgo addressing these arguments

at summary judgment.

Moreover, viewing the evidence in the light most favorable

to Plaintiff, no reasonable officer could believe that probable

cause for second-degree trespass existed. As a result, the

question of qualified immunity is premature at this stage. See

Hupp, 931 F.3d at 318 (“Although an actual lack of probable

cause is not dispositive for qualified immunity purposes, the

boundaries of the statute allegedly violated by the plaintiff

are extremely relevant to an assessment of whether an officer's

mistake was reasonable.” (emphasis in original) (cleaned up)).

ii. Resisting Arrest

Having found that disputes of fact prevent this court from

finding that the officers had probable cause to arrest Plaintiff

for a trespass offense, and Defendants having conceded the same

for Plaintiff’s disorderly conduct offense, the court likewise

finds that Plaintiff’s resistance to arrest — the conduct that

gave rise to her “resisting a public officer” offense — cannot

support a finding as to probable cause.

The elements of a “resisting a public officer” offense are:

1) that the victim was a public officer; 2) that the

defendant knew or had reasonable grounds to believe that

the victim was a public officer; 3) that the victim was

discharging or attempting to discharge a duty of his

office; 4) that the defendant resisted, delayed, or

obstructed the victim in discharging or attempting to

discharge a duty of his office; and 5) that the defendant

acted willfully and unlawfully, that is intentionally

and without justification or excuse.

Nickens, 262 N.C. App. at 364, 821 S.E.2d at 873; see also

N.C. Gen. Stat. § 14-223.

However, in the context of resisting arrest, the law is

well established that “every person has the right to resist

an unlawful arrest,” State v. Mobley, 240 N.C. 476, 478, 83

S.E.2d 100, 102 (1954); see also State v. Smith, 225 N.C.

App. 471, 476, 736 S.E.2d 847, 851 (2013) (“The offense of

resisting arrest . . . presupposes a lawful arrest.”), and

“may use such force as reasonably appears to be necessary to

prevent the unlawful arrest.” State v. Allen, 14 N.C. App.

485, 492, 188 S.E.2d 568, 573 (1972).

Because genuine disputes of material fact prevent a finding

at summary judgment that the Deputy Defendants had probable

cause to arrest Plaintiff for underlying trespass or disorderly

conduct offenses, it is an open question whether her arrest was

“lawful.” Depending on how these facts are resolved at trial, it

may well be that Plaintiff acted within her “right to resist an

unlawful arrest,” see Mobley, 240 N.C. at 478, 83 S.E.2d at 102,

when she verbally protested arrest, pulled away from the

officer, and refused to put her hand behind her back, (see Pl.’s

Ex. 10, J.R. Smith Dep. (Doc. 43-10) at 42–45; Pls.’ Ex. 4,

Felisha Wall Dep. (Doc. 43-4) at 50).

In their briefing to this court, Defendants argue that “a

[suspect] need not be under arrest to be guilty of resisting a

public officer,” (Defs.’ Br. (Doc. 40) at 16), and cite several

cases to support this proposition. However, each of the cases

cited by Defendants involves a suspect who resisted an officer’s

lawful request or order. See State v. Newman, 186 N.C. App. 382,

388–89, 651 S.E.2d. 584, 588–89 (2007) (officer called in to

investigate a “disruptive customer” and the customer “pulled

away” from the officer during that investigation); United States

v. Ruffin, 814 Fed. App’x 741, 749–50 (4th Cir. 2020) (officer

had reasonable suspicion to detain a suspect and that suspect

resisted detention, giving rise to probable cause for arrest);

State v. Lynch, 94 N.C. App. 330, 332–33, 380 S.E.2d 397, 398–99

(1989) (officer was “attempting to ascertain defendant’s

identity” but defendant refused to respond and fled).

By contrast, here, considering the facts in the light most

favorable to Plaintiff, Defendant J.R. Smith did not have any

apparent reason to investigate Plaintiff, did not have

constitutional grounds to temporarily detain Plaintiff, and did

not need to ascertain Plaintiff’s identity. Instead, the video

footage shows that Defendant J.R. Smith approached Plaintiff and

immediately instructed her to “put [her] hands behind [her]

back.” (Pl.’s Ex. 8, Video (Doc. 43-8) at 01:16). In other

words, the only order that Plaintiff resisted was the order

putting her under arrest, which, at this stage, has not been

found to be lawful.

In sum, at summary judgment, disputes of material fact

prevent a finding as to probable cause. These issues must be

resolved at trial.

B. Defendants are protected by sovereign and/or

governmental immunity as to the state law claims

brought against them in their official capacities.

“The doctrine of sovereign immunity bars actions against

public officials sued in their official capacities. Sheriffs and

deputy sheriffs are considered public officials for purposes of

sovereign immunity.” Phillips v. Gray, 163 N.C. App. 52, 56–57,

592 S.E.2d 229, 232 (2004) (internal citation omitted); see also

Butterfield v. Gray, 279 N.C. App. 549, 554, 866 S.E.2d 296, 301

(2021) (“Sheriffs, sheriff's deputies, and jailers have all been

recognized as public officials who may avail themselves of the

defense of governmental immunity.” (emphasis added)).

Under the doctrine of governmental immunity,10 a county’s

public officials sued in their official capacity are immune from

suit for intentional torts arising from the exercise of

governmental functions, “unless the plaintiff shows that the

county or county’s public officials waived immunity.” See

Butterfield, 279 N.C. App. at 554, 866 S.E.2d at 301. A county

waives immunity through the “purchase of liability insurance

pursuant to N.C. Gen. Stat. § 153A-435,” except to the extent

“the applicable liability insurance policy excludes a

plaintiff's claim from coverage.” Id. at 556, at 302.

Here, Defendants have introduced undisputed evidence that

Richmond County purchased liability insurance from the North

Carolina Association of County Commissioners (“NCACC”) during

the fiscal years relevant to this suit, (Defs.’ Ex. 2, Garner

Decl. (Doc. 40-6) at 2), which ordinarily would waive immunity.

10 In a 2021 opinion, the North Carolina Court of Appeals

acknowledged that the court had used the terms “sovereign

immunity” and “governmental immunity” interchangeably in its

previous decisions and explained that governmental immunity is a

subset of a state’s sovereign immunity and applies to local

governments. See Butterfield, 279 N.C. App. at 553 n.3, 866

S.E.2d at 301 n.3. It further explained that the distinction

between the two can be salient because “the more limited” of the

two doctrines, governmental immunity, covers only those acts

committed pursuant to “governmental functions.” Id. However, in

the present case, Plaintiff has not challenged that the Deputy

Defendants were acting pursuant to “governmental functions”

during the events of December 2, 2018, and thus, any distinction

is immaterial.

However, the policy purchased by Richmond County expressly

excludes “Claims or Suits to which a Covered Person is entitled

to sovereign immunity or governmental immunity under North

Carolina law.” (Defs.’ Ex. 2F, 18-19 Public Official Coverage

(Doc. 40-13) at 6; see also id. at 4 (explaining contracting

parties “inten[tion] for no coverage to exist . . . as to any

claim for which the Covered Person is protected by sovereign

immunity and/or governmental immunity”); Defs.’ Ex. 2G, 18-19

Law Enforcement Coverage (Doc. 40-14) at 4, 6.) Because of this

express exclusion, Richmond County’s insurance policy does not

waive their immunity and Plaintiff’s state law tort claims

against the law enforcement officers in their official

capacities are barred.

For her part, Plaintiff’s only argument on this issue is

that “the language of the policy does not expressly and

unambiguously exclude or limit coverage.” (Pl.’s Resp. (Doc. 43)

at 21 (emphasis added).) However, Defendants cite multiple

opinions where North Carolina courts have found that near

identically drafted policies were “unambiguous” and “did not

waive governmental immunity.” See, e.g., Est. of Earley ex rel.

Earley v. Haywood Cnty. Dep't of Soc. Servs., 204 N.C. App. 338,

342–43, 694 S.E.2d 405, 409 (2010). Following that precedent,

this court finds that Richmond County’s policy is likewise

unambiguous.

Accordingly, Claim VI against Defendants J.R. Smith, Davis,

and Cain in their official capacities will be dismissed; Claim V

against Defendant J.R. Smith in his official capacity will be

dismissed; and Claim IX against Defendant J.R. Smith in his

official capacity will be dismissed.

C. Plaintiff’s Remaining Claims

i. Claim II – First Amendment retaliation

pursuant to 42 U.S.C. § 1983 (Defendant J.R.

Smith in his individual capacity)

“A plaintiff claiming First Amendment retaliation must

demonstrate that: (1) [she] engaged in protected First Amendment

activity, (2) the defendants took some action that adversely

affected [her] First Amendment rights, and (3) there was a

causal relationship between [her] protected activity and the

defendants’ conduct.” Bhattacharya v. Murray, 93 F.4th 675, 687–

88 (4th Cir. 2024) (quotation marks and citation omitted), cert.

denied, 145 S. Ct. 443 (2024).

Plaintiff alleges that Defendant J.R. Smith arrested her in

retaliation for her exercising her First Amendment right to film

the officers. (See Compl. (Doc. 2) ¶¶ 174–87.) Defendants argue

that Plaintiff’s claim fails as a matter of law because there

was probable cause for her arrest, (see Defs.’ Br. (Doc. 40) at

11–12 (citing Nieves v. Bartlett, 587 U.S. 391, 408 (2019);

Hulbert v. Pope, 70 F.4th 726, 732 (4th Cir. 2023)), or

alternatively, that the officers are protected by qualified

immunity as to the probable cause determination. (Id. at 19–22.)

This court found that disputes of fact prevent findings as to

probable cause and qualified immunity at summary judgment.

Defendants additionally argue that Plaintiff has not

established a causal relationship between her filming and her

arrest, (Defs.’ Br. (Doc. 40) at 17–18), thereby failing to meet

the third element of a First Amendment retaliation claim. See

Bhattacharya, 93 F.4th at 688. For this argument, Defendants

rely on a case where a tenured university professor challenged

his transfer to a new academic department, alleging that he was

retaliated against for “‘blowing the whistle’ on an improper

business arrangement.” See Huang v. Bd. of Governors of Univ. of

N. Carolina, 902 F.2d 1134, 1139–40 (4th Cir. 1990); (see also

Defs.’ Br. (Doc. 40) at 17 (citing Huang)). In Huang, nearly six

years passed between when the professor “blew the whistle” and

when he was transferred to a new department. Huang, 902 F.2d at

1140. On those facts, the court found there was “not a scintilla

of evidence that the . . . decision [to transfer] was infected

with a retaliatory motive traceable to the alleged . . .

whistle-blowing incident.” Id. at 1141.

By contrast, when First Amendment retaliation claims are

based upon an alleged wrongful arrest, there is significant

overlap between the probable cause inquiry and the causation

element. See Nieves, 587 U.S. at 400–04 ("[B]ecause probable

cause speaks to the objective reasonableness of an arrest, its

absence will . . . generally provide weighty evidence that the

officer’s animus caused the arrest.") Here, in the absence of a

finding of probable cause, the causal link between Plaintiff’s

filming and her arrest is strong. Plaintiff was filming the

officers at the moment of her arrest and verbally announced to

the officers seconds prior to her arrest, “I’m just recording.”

(Pl.’s Ex. 8, Video (Doc. 43-8) at 01:09-01:12.) Moreover, she

has put forward evidence that Defendant J.R. Smith tried to

“snatch” and “break” her phone after they arrested her. (See

Pl.’s Ex. 4, Felisha Wall Dep. (Doc. 43-4) at 62; Pl.’s Ex. 1,

Shamica Wall Decl. (Doc. 43-1) ¶ 17.) At this stage, unlike

Huang, there is more than “a scintilla of evidence” that the

Defendant J.R. Smith’s decision to arrest Plaintiff was

“infected with a retaliatory motive traceable” to the exercise

of her First Amendment rights. See Huang, 902 F.2d at 1141. As a

result, Plaintiff’s § 1983 First Amendment retaliation claim

advances to trial.

ii. Claim IV – Fourth Amendment malicious

prosecution pursuant to 42 U.S.C. § 1983

(Defendant J.R. Smith in his individual

capacity)

Plaintiff alleges that Defendant J.R. Smith wrongfully

arrested her and “swore out the arrest warrant . . . for the

crime of disorderly conduct,” despite knowing he lacked probable

cause for her arrest. (See Compl. (Doc. 2) ¶¶ 208, 212.)

To establish a Fourth Amendment malicious prosecution

claim, “a plaintiff must show that the defendant (1) caused (2)

a seizure of the plaintiff pursuant to legal process unsupported

by probable cause, and (3) criminal proceedings terminated in

plaintiff's favor.” Hupp, 931 F.3d at 324 (internal citations

and quotation marks omitted).“To demonstrate a favorable

termination of a criminal prosecution for purposes of the Fourth

Amendment claim under § 1983 for malicious prosecution, a

plaintiff need only show that his prosecution ended without a

conviction.” Thompson v. Clark, 596 U.S. 36, 39 (2022).

Here, Plaintiff’s charges were dismissed, (Pl.’s Ex. 11,

Public Records (Doc. 43-11) at 1), thus establishing a

“favorable termination” for Plaintiff. See Thompson, 596 U.S. at

39. Defendants’ only argument at summary judgment is that

Plaintiff cannot meet the second element of a malicious

prosecution claim; that is, they argue her arrest was supported

by probable cause. (See Defs.’ Br. (Doc. 40) at 18–19.) However,

disputes of fact prevent a finding as to probable cause at this

stage. Plaintiff’s § 1983 malicious prosecution claim will

advance to trial.

iii. Claim V – Common law malicious prosecution

(Defendant J.R. Smith in his individual

capacity)

Plaintiff also alleges an identical malicious prosecution

claim against Defendant J.R. Smith under state common law.

(Compl. (Doc. 2) ¶¶ 215–227.)

To establish malicious prosecution under North Carolina law

“a plaintiff must show that the defendant (1) initiated or

participated in the earlier proceeding, (2) did so maliciously,

(3) without probable cause, and (4) the earlier proceeding ended

in favor of the plaintiff.” Turner v. Thomas, 369 N.C. 419, 425,

794 S.E.2d 439, 444 (2016).

Under North Carolina law, the dismissal of an action is

ordinarily sufficient to show the “proceeding terminated in

favor of the plaintiff.” See Chidnese v. Chidnese, 210 N.C. App.

299, 305, 708 S.E.2d 725, 731 (2011) (noting that termination in

favor of the plaintiff was not an element at issue when “the

criminal proceeding was dismissed” by the district attorney);

see also Moore v. Evans, 124 N.C. App. 35, 42–43, 476 S.E.2d

415, 421–22 (1996). However, unlike malicious prosecution under

federal law, the North Carolina Supreme Court has added that

“where the criminal action is withdrawn or terminated by

compromise brought about by the defendant, an action for

malicious prosecution based thereon will not lie.” Alexander v.

Lindsey, 230 N.C. 663, 671, 55 S.E.2d 470, 476 (1949). This

court is aware of no precedent overturning or seriously

questioning this holding of Alexander, nor have the parties

identified one.

Defendants argue that Plaintiff “cannot demonstrate that

there was a favorable termination,” (Defs.’ Br. (Doc. 40) at

24), because Plaintiff’s “resisting a public officer” charge was

dismissed by the district attorney in exchange for Plaintiff

performing community service, (see Defs.’ Ex. 3, Elkins Decl.

(Doc. 40-28) at 2), which, under Alexander, is a dismissal due

to “a compromise brought about by the defendant,” see Alexander,

230 N.C. at 671, 55 S.E.2d at 476.

Plaintiff concedes that her “resisting a public officer”

charge was dismissed due a comprise but argues that her

disorderly conduct charge survives because (1) it was “dismissed

favorably” and because (2) “the elements of that charge are

distinct and arise from different conduct than the [resist]

charge.” (See Pl.’s Resp. (Doc. 43) at 19–20.) Defendants reply

that because “there was one Magistrate’s Order charging

Plaintiff with both crimes,” Plaintiff cannot separate the two

offenses for the purposes of advancing a malicious prosecution

claim. (Defs.’ Reply (Doc. 44) at 9–10.)

This court agrees with Plaintiff that her “disorderly

conduct” charge appears to have been dismissed for different

reasons than her “resisting a public officer” charge. (See Pl.’s

Ex. 11, Public Records (Doc. 43-11) at 1 (resisting offense

“dismiss[ed] without leave by DA” while disorderly conduct

offense “dismissed by court”); Defs.’ Ex. 3, Elkins Decl. (Doc.

40-28) at 2 (emphasizing that Plaintiff’s performance of

community service was specific to the dismissal of her resisting

charge); Doc. 9-2 at 2, 6 (resisting offense dismissed for

“Other: Complied” while disorderly conduct offense dismissed “by

the court” because “court finds warrant is fatally defective on

this charge”).) Further, because there is no evidence of a

compromise, the grounds for dismissal of Plaintiff’s disorderly

conduct charge appears to qualify as a favorable termination.

See Turner, 369 N.C. at 425, 794 S.E.2d at 444.

Defendants cite no authority which supports their argument

that this court must treat multiple charges brought under one

warrant, dismissed on entirely distinct grounds, as one for the

purposes of a malicious prosecution claim. (See Defs.’ Br. (Doc.

40) at 25; Defs.’ Reply (Doc. 44) at 9–10.) On the contrary,

Plaintiff cites to a malicious prosecution case out of the

Western District of North Carolina that deals with this issue,

albeit collaterally. (See Pl.’s Resp. (Doc. 43) at 20 (citing

Cloaninger v. McDevitt, No. 106-cv-135, 2006 WL 2570586

(W.D.N.C. Sept. 3, 2006)).)11

While there appears to be an absence of binding authority

in North Carolina on this issue, the Second Circuit has reasoned

persuasively that when multiple charges are brought against one

defendant and are resolved by distinct dispositions – some that

qualify as “favorable termination” and some that do not — the

defendant may proceed with a malicious prosecution claim

regarding the charges that do qualify. See Janetka v. Dabe, 892

F.2d 187, 190. Otherwise, the Second Circuit reasons, “police

officers could add unsupported . . . charges to legitimate . . .

charges with impunity.” Id.

Here, where Plaintiff based her common law malicious

prosecution claim against Defendant J.R. Smith entirely on his

arrest “for the crime of disorderly conduct,” (Compl. (Doc. 2)

¶ 218), where Plaintiff’s alleged conduct underlying the

disorderly conduct charge is different from the conduct

11 In their reply brief, Defendants note, and this court

agrees, that there is a factual distinction between Cloaninger

and Plaintiff’s claim in that the charges in Cloaninger were

“procured as separate warrants,” Cloaninger, 2006 WL 2570586 at

*9, and a legal distinction in that the central issue in

Cloaninger was res judicata and not “favorable termination,” see

id. (See Defs.’ Reply (Doc. 44) at 9.)

underlying the resisting charge, and where Plaintiff’s

disorderly conduct charge was terminated favorably, this court

finds the Second Circuit’s reasoning persuasive and rules that

Plaintiff’s common law malicious prosecution claim as to her

disorderly conduct charge may proceed to trial.

Vv. CONCLUSION

For the foregoing reasons, IT IS THEREFORE ORDERED that

Defendant’s Motion for Partial Summary Judgment, (Doc. 39), is

GRANTED IN PART and DENIED IN PART.

It is GRANTED as to Claim V, Claim VI, and Claim IX insofar

as these claims are brought against Defendants in their official

capacity. Claims V, VI, and IX are DISMISSED against Defendants

in their official capacities only.

It is DENIED as to Claim II and Claim IV. It is further

DENIED as to Claim V and Claim IX insofar as these claims are

brought against Defendant in his individual capacity.

This the 31st day of March, 2025.

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United States District Judde

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