FREEMAN v. SANCHEZ

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

)

KIMBERLY FREEMAN, in her )

individual capacity; and C.B., )

a minor, by and through his )

parent, Kimberly Freeman, )

)

Plaintiffs, )

v. )

) 1:24CV414

MARBELY SANCHEZ, in her )

individual capacity; GREGORY J. )

SEABOLT, in his official )

capacity as Sheriff of Randolph )

County; and CINCINNATI )

INSURANCE COMPANY, in its )

capacity as Surety on the )

Official Bond of the Sheriff of )

Randolph County, )

)

Defendants.

MEMORANDUM OPINION AND ORDER

THOMAS D. SCHROEDER, District Judge.

This case involves claims arising from a law enforcement

officer’s shooting of a dog on the owner’s property. Before the

court is Plaintiffs’ motion for leave to file an amended complaint

(Doc. 18), and Defendants’ motion for summary judgment (Doc. 23).

Both motions are fully briefed and ready for decision. For the

reasons stated below, Plaintiff’s motion for leave to amend will

be granted, and Defendants’ motion for summary judgment will be

granted in part and denied in part.

I. BACKGROUND

The facts presented, viewed in the light most favorable to

Plaintiffs as the non-movants as to Defendants’ motion for summary

judgment, show the following:

On April 1, 2022, Defendant Marbely Sanchez drove to a home

shared by Larry Freeman, Plaintiff Kimberly Freeman, and C.B.,

Kimberly Freeman’s minor son. (Doc. 26-3 at 14–15.) Sanchez, a

deputy with the Randolph County Sheriff’s Office, was attempting

to serve Larry Freeman with a show cause order for alleged

delinquent child support obligations. (Id. at 9, 15.) At the

time, the Freemans and C.B. lived in a double-wide mobile home

with their dog, Major, a 120-pound Rottweiler. (Doc. 24-4 at 3,

9.)

The Freeman home had a front door with steps, back deck with

steps, and carport. (Id. at 10.) Their property also had an

“outbuilding” behind the house that the family used to store

lawncare equipment. (Id.) The Freemans’ front porch bears the

street number address and a “Welcome” sign that hangs from the

front door:

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(Doc. 26-4.)

The Freemans’ back deck is offset from the street that leads

to their property by the carport and is not visible from their

driveway. (Doc. 24-4 at 11-12; Doc. 26-3 at 18.) There are two

doors on the back deck: a screened, sliding-glass door that leads

to the kitchen (Doc. 26-5 @ 6), and a separate door that leads to

a 550 square-foot addition to the home which serves as the

Freemans’ bedroom. (Doc. 24-4 at 9.) A dog door sits between the

sliding-glass door and the door to the bedroom. (Id. at 11.) The

back porch is pictured here:

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(Doc. 26-8.)

An aerial photograph of the Freemans’ property submitted by

Plaintiffs is included here:

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(Doc. 26-7.)

Sanchez parked on the front side of the Freeman home with the

front porch in view. (Doc. 26-3 at 17, 19.) She made her way to

the front door, intending to serve Larry Freeman with the show

cause order. (Id. at 15, 19.) She knocked on the front door.

(Id. at 25.) Sanchez heard Major barking inside. (Id. at 27.)

Freeman and C.B. were in the home (Doc. 24-4 at 16-17), but neither

answered (Doc. 26-3 at 28).

After waiting for “some amount of time,” Sanchez left the

front door and walked through the carport and to the back of the

home. (Id. at 26.) Unlike the front entrance, Sanchez could not

see the Freemans’ back deck from her parked patrol car. (Id. at

17–19.) At her deposition, Sanchez said that she had not seen

anyone in the home’s backyard, she did not have any indication

that someone was behind the home, and she did not hear anything

from the backyard that suggested the homeowners would be present

there. (Id. at 21.) But Sanchez surmised that the backyard was

the Freemans’ “main access point” because a path leading into the

backyard was well-worn.1 (Id.)

Sanchez says she ventured along the “worn path” through the

carport to the backyard. (Id. at 28.) Thus, she walked under the

carport and into the backyard. (Id. at 32.) She could see the

Freemans’ back deck from the backyard. (Id.) Sanchez scaled the

five deck steps, approached the sliding glass door to the kitchen,

and knocked again. (Id. at 33.) She says she did not notice the

dog door at this point. (Id. at 35.) After knocking, she

immediately returned to the deck stairs. (Id. at 33.)

As Sanchez neared the deck steps, Major came onto the deck

through his dog door and barked at her. (Id. at 41, 46.) According

to Sanchez, Major was “growling and barking and snarling.” (Id.

at 46.) The commotion roused Kimberly Freeman, who dressed in her

bedroom and made her way toward the back deck. (Doc. 24-4 at 17.)

1 At her deposition, Kimberly Freeman testified that the family “would

always use the front door” and never the back door. (Doc. 24-4 at 11.)

When she opened the door, she saw Sanchez draw her firearm and

shoot Major. (Id. at 18.) Ms. Freeman says that immediately

before the shooting Major was “standing still, barking” and that

he merely “appeared defensive, not aggressive.” (Doc. 26-5 ¶ 7.)

The parties dispute several key aspects of the incident.

Kimberly Freeman claims that Major was approximately ten feet away

from Sanchez when she shot him. (Id. at 19.) She also said that

although Major was barking at Sanchez and “appeared defensive,” he

did not seem aggressive and was “too far away from [Sanchez] to

bite her or jump on her when she shot him.” (Doc. 26-5 ¶¶ 7–8.)

Sanchez says that Major presented an imminent threat to her safety

and was preparing to “charge and maul” her. (Doc. 26-3 at 46.)

She testified that Major was approximately two feet away from her

when she shot him. (Id. at 49.) And because Major posed an

immediate threat, Sanchez said, she did not have the time to deploy

less lethal measures, such as her pepper spray. (Id. at 44, 50.)

C.B., who was then thirteen years old, also observed the

incident through the kitchen window. (Doc. 26-2 at 10.) At his

deposition, he said that Sanchez was on the middle of the stairs

leading up to the back deck when she shot Major. (Id. at 6.) He

did not have a clear view of Major’s position on the porch. (Id.

at 7, 10.) Major initially survived the shooting, but the Freemans

decided to euthanize him in December 2022 because he allegedly

became too aggressive as a result of the shooting. (Doc. 26-1 at

30.)

Sanchez had served hundreds of civil orders prior to April 1,

2022. (Doc. 26-3 at 7.) She had encountered dogs while doing so.

(Id. at 3–4.) When a dog threatened her, she had a practice of

deploying her pepper spray to repel the animal. (Id.) She

reported that she had done precisely that no fewer than 25 times.

(Id. at 4.) Pepper spray had successfully repelled the dog each

time. (Id. at 5, 8.) Although she was armed with her pepper spray

on the day in question, Sanchez did not use it. (Id. at 11, 44.)

On May 17, 2024, Kimberly Freeman and C.B. filed this action

against Sanchez in her individual capacity, Gregory J. Seabolt in

his official capacity as Sheriff of Randolph County, and Cincinnati

Insurance Company as surety on the official bond of the Sheriff of

Randolph County. (Doc. 1.) Plaintiffs asserted claims pursuant

to 42 U.S.C. § 1983 for deprivation of their rights under the

Fourth and Fourteenth Amendments to the United States

Constitution, and state law claims of trespass, trespass to

chattels, conversion, assault, intentional infliction of emotional

distress, and negligent infliction of emotional distress. (Id.

¶¶ 36–120.)

II. ANALYSIS

A. Motion to Amend

Plaintiffs first seek leave to file an amended complaint

pursuant to Federal Rule of Civil Procedure 15(a) and 16(b), as

well as this court’s local rule 15.1. (Doc. 18.) Their proposed

amended complaint seeks to add “two new parties and one new claim.”

(Doc. 19 at 1.) It adds two Randolph County Sheriff Office

employees, Neil Blackmon and David MacFayden, who allegedly

trained Sanchez to serve civil papers, as Defendants for

Plaintiffs’ first cause of action and asserts a Monell2 claim

against Seabolt and Cincinnati Insurance Company alleging that

Randolph County maintained a policy for serving legal papers that

violated the constitutional rights of Randolph County residents.

(Id. at 3.)

Defendants oppose amendment, arguing that any amendment is

untimely, Plaintiffs have not demonstrated good cause to amend the

case scheduling order as required by Federal Rule of Civil

Procedure 16, and the proposed amendment is futile. (Doc. 20 at

1.) Plaintiffs counter that the “facts underlying the present

amendment were not known when the deadline for amending pleadings

passed,” that they “have diligently pursued discovery,” and that

they promptly sought to amend the complaint after discovering the

basis for their new claim during Sanchez’s deposition. (Doc. 19

at 5.) Defendants respond that Plaintiffs could have discovered

the basis for their new claim earlier if they had been diligent

2 See Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978).

during discovery. (Doc. 20 at 4–5.) Specifically, they argue

that Defendants produced Sanchez’s training and personnel file and

the Randolph County Sheriff’s Office policies and procedures on

September 24, 2024, which could have led Plaintiffs to discover

their basis for any Monell claim over a month in advance of the

scheduling order’s deadline for adding parties. (Id. at 4.)

Defendants further argue that even if Plaintiffs had demonstrated

good cause for leave to amend, the motion should be denied because

the proposed amendment is futile. (Id. at 5.) Finally, Plaintiffs

respond that the documents Defendants produced discussing

Sanchez’s training and Randolph County’s policies did not indicate

that it was “standard practice to approach homes’ back doors.”

(Doc. 21 at 3.) They also point out that the documents did not

“identify Blackmon and MacFayden as Sanchez’s trainers, let alone

suggest that they trained her to approach homes’ back doors without

a warrant.” (Id.)

Federal Rule of Civil Procedure 15 provides that a plaintiff

may amend a complaint once as a matter of course within 21 days

after the earlier of (1) service of a responsive pleading or (2)

service of a motion under Federal Rule of Civil Procedure 12(b),

(e), or (f). After that period, a party may amend only with either

the opposing party’s written consent or leave of court. Fed. R.

Civ. P. 15(a)(2); Fomanv. Davis, 371 U.S. 178, 182 (1962) (noting

that “the grant or denial of an opportunity to amend is within the

discretion of the District Court”). While district courts have

discretion to grant or deny a motion to amend, the Fourth Circuit

has interpreted Rule 15(a) to provide that “leave to amend a

pleading should be denied only when the amendment would be

prejudicial to the opposing party, there has been bad faith on the

part of the moving party, or the amendment would have been

futile.” Laber v. Harvey, 438 F.3d 404, 426 (4th Cir. 2006)

(citation omitted); Foman, 371 U.S. at 182 (same). Rule 16, which

governs the court’s issuance of a scheduling order among other

matters, states that the court’s schedule “may be modified only

for good cause” and with the court’s consent. Fed. R. Civ. P.

16(b)(4).

If the proposed amendment “advances a claim or defense that

is legally insufficient on its face, the court may deny leave to

amend.” Williams v. Little Rock Mun. Water Works, 21 F.3d 218,

225 (8th Cir. 1994) (citation modified); see Joyner v. Abbott

Lab’ys., 674 F. Supp. 185, 190 (E.D.N.C. 1987) (same). “To

determine whether a proposed amended complaint would be futile,

the Court reviews the revised complaint under the standard used to

evaluate a motion to dismiss for failure to state a claim.” Amaya

v. DGS Constr., LLC, 326 F.R.D. 439, 451 (D. Md. 2018) (citing

Katyle v. Penn Nat’l Gaming, Inc., 637 F.3d 462, 471 (4th Cir.

2011)). Thus, “[a] motion to amend a complaint is futile ‘if the

proposed claim would not survive a motion to dismiss.’” Pugh v.

McDonald, 266 F. Supp. 3d 864, 866 (M.D.N.C. 2017) (quoting James

Madison Ltd. v. Ludwig, 82 F.3d 1085, 1099 (D.C. Cir. 1996)).

Plaintiffs have shown good cause for their proposed

amendment. To be sure, Defendants have not argued, much less

demonstrated, that amendment would be prejudicial to them or that

Plaintiffs sought to amend the complaint in bad faith. See Laber,

438F.3d at 426. At most, Defendants suggest that Plaintiffs could

have uncovered the basis for their new Monell claim and for adding

Blackmon and MacFayden as Defendants sooner if they had conducted

discovery more quickly. But Plaintiffs have persuasively argued

that the predicate for their Monell claim was not evident in the

documents Defendants produced prior to Sanchez’s deposition, and

that Defendants learned only during that deposition that Blackmon

and MacFayden trained Sanchez. Because Plaintiffs have diligently

conducted discovery and expeditiously moved for amendment once

they discovered a basis to add new defendants and a new claim,

they have shown good cause for leave to amend. See EEOC v. Hooters

of Am., LLC, 347 F.R.D. 445, 448 (M.D.N.C. 2024) (“The touchstone

of good cause under Rule 16(b) is diligence.” (citations omitted)).

Defendants’ arguments that the proposed amendment is futile

are unconvincing. Defendants first argue that the proposed claim

against Blackmon and MacFayden is not cognizable. (Doc. 20 at 6.)

They maintain that “failure to train is a theory of municipal

liability under Monell,” and that “Monell does not apply to

individual capacity claims.” (Id.) Defendants further contend

that because “there are no allegations that Blackmon and MacFayden

participated in the entry and search of Freeman’s property” and

section 1983 liability is personal, the claim against them must be

dismissed. (Id. at 7–8.) And they argue that Plaintiffs have

failed to allege an actionable supervisory liability claim under

section 1983. (Id. at 8–9.) On Plaintiff’s proposed Monell

failure to train claim against Sheriff Seabolt, Defendants argue

that Plaintiffs failed to allege that he was “deliberately

indifferent in training his officers.” (Id. at 11.) Because of

this, and because Plaintiffs did not allege “a pattern of similar

constitutional violations which could give rise to a failure to

train claim,” they suggest amendment is futile in this respect as

well. (Id.)

Defendants’ arguments are unpersuasive. Their contention

that Plaintiffs’ “failure to train” claim cannot be lodged against

Blackmon and MacFayden in their individual capacities is mistaken.

Plaintiffs have asserted a section 1983 claim against them under

a theory of supervisory liability, which the Fourth Circuit has

recognized as actionable. Shaw v. Stroud, 13 F.3d 791, 798 (4th

Cir. 1994). Moreover, predicates for liability under this theory,

such as whether Sanchez’s supervisors were deliberately

indifferent to or tacitly authorized her offending conduct, are

generally issues of fact, not questions of law. Id. at 799 (citing

Avery v. Cnty. of Burke, 660 F.2d 111, 114 (4th Cir. 1981)). The

amended complaint plausibly alleges that Blackmon and MacFayden

directed deputies to regularly trespass onto the curtilage of

private residences. (Doc. 18-1 ¶ 38 (alleging Blackmon and

MacFayden directed Sanchez “that if it appeared the residents of

a home regularly used a door to access a home, she should also

approach that door to serve papers, even if it was within the

home’s curtilage and was not the door used by members of the

general public.”); ¶ 39 (“As a result of Defendants Blackmon and

MacFayden’s training, Ms. Sanchez routinely entered homes’

backyards, side yards, and other areas not open to the general

public when serving papers,” as did other officers of the Randolph

County Sheriff’s Office).) The proposed amended complaint’s

allegations claim that “Blackmon and MacFayden directed, condoned,

and approved” of Sanchez’s actions. (Id. ¶ 47.) Because the merit

of this claim turns on issues of fact and Plaintiffs have alleged

that Blackmon and MacFayden endorsed Sanchez’s conduct that

allegedly violated the Fourth Amendment, this claim would survive

a motion to dismiss on this ground and is therefore not futile.

Defendants’ contention that Plaintiffs did not allege Blackmon and

MacFayden personally participated in the alleged deprivation of

Fourth Amendment rights is unavailing for similar reasons.

Plaintiffs’ claim that Blackmon and MacFayden directed Sanchez to

serve civil papers in a manner that violated the Fourth Amendment

rights of Randolph County citizens is sufficient at the pleading

stage.

Defendants’ argument that the amended complaint fails to

allege Monell liability based on supervisory liability or for

failure to train is also unpersuasive. The gravamen of the amended

complaint’s Monell claim is that the Randolph County Sheriff’s

Office “maintained an unconstitutional policy, pattern, and

practice of training, permitting, and directing officers to enter

private areas of residence without a warrant, consent, or exigent

circumstances.” (Doc. 18-1 ¶ 129.) Plaintiffs allege this

amounted to training officers to violate the Constitution and that

the challenged practice was “widespread and persistent.” (Id.)

Nevertheless, Plaintiffs allege, Seabolt and his office “approved”

of this “unconstitutional conduct” and were “deliberately

indifferent to the deficiencies within [their] policies,

practices, and customs; [were] deliberately indifferent to the

risks those deficiencies created; and [were] deliberately

indifferent to the Fourth Amendment rights of residents of Randolph

County.” (Id. ¶¶ 129–30.) The merit of this claim depends on

factual development. Yet, it cannot be said that it is futile.

Accordingly, Plaintiffs’ motion for leave to amend the complaint

will be granted.

Plaintiffs also request, without opposition from Defendants,

that the amended complaint be deemed filed on the date Plaintiffs

filed their motion to amend. (Doc. 19 at 6.) This is the standard

practice. Because Plaintiffs’ motion for leave will be granted,

the amended complaint will be deemed timely and filed as of March

28, 2025. See Brown v. Belt, No. 2:15-cv-11549, 2019 WL 1302627,

at *5 (S.D.W. Va. Mar. 21, 2019) (deeming amended complaint filed

as of the date of the motion to amend and citing cases).

B. Motion for Summary Judgment

Defendants offer multiple grounds in support of their motion

for summary judgment. First, they argue that Plaintiffs’ unlawful

search and seizure claim fails because Sanchez’s actions were a

lawful “knock and talk,” an exception to the Fourth Amendment

warrant requirement. (Doc. 24 at 2, 8–12.) Second, they argue

Sanchez’s use of force was reasonable and therefore lawful. (Id.

at 13–16.) Third, they contend that Plaintiffs cannot bring a due

process claim related to the shooting because it is properly

analyzed as an unlawful seizure claim. (Id. at 16.) Fourth, they

argue that Seabolt and Sanchez are entitled to immunity. (Id. at

16–24.) Fifth, they contend that the lawfulness of the search and

alleged seizure defeats Plaintiffs’ state tort claims. And

finally, they allege that Cincinnati Insurance Company has no

liability because the claims against Seabolt and Sanchez fail.

(Id. at 26.) Each is addressed below.

Summary judgment is appropriate “if the movant shows that

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

is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(a). “A genuine issue of material fact exists ‘if the evidence

is such that a reasonable jury could return a verdict for the

nonmoving party.’” Basnight v. Diamond Devs., Inc., 146 F. Supp.

2d 754, 760 (M.D.N.C. 2001) (quoting Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248 (1986)). In determining a motion for

summary judgment, the court views the “evidence in the light most

favorable to the non-moving party, according that party the benefit

of all reasonable inferences.” Id. (citation omitted). Summary

judgment should be denied “unless the entire record shows a right

to judgment with such clarity as to leave no room for controversy

and establishes affirmatively that the adverse party cannot

prevail under any circumstances.” Guessford v. Pa. Nat'l Mut.

Cas. Ins. Co., 983 F. Supp. 2d 652, 659 (M.D.N.C. 2013) (quoting

Campbell v. Hewitt, Coleman & Assocs., Inc., 21 F.3d 52, 55 (4th

Cir. 1994)). “Credibility determinations, the weighing of the

evidence, and the drawing of legitimate inferences from the facts

are [fact-finder] functions . . . .” Anderson, 477 U.S. at 255.

Therefore, on summary judgment, “[t]he evidence of the non-movant

is to be believed, and all justifiable inferences are to be drawn

in his favor.” Id. (citation omitted).

While the movant bears the initial burden of demonstrating

the absence of a genuine dispute of material fact, once that burden

has been met, the non-moving party must demonstrate the existence

of a genuine dispute of material fact. Bouchat v. Balt. Ravens

Football Club, Inc., 346 F.3d 514, 522 (4th Cir. 2003); Matsushita

Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586–

87 (1986). A mere scintilla of evidence is insufficient to avoid

summary judgment. Anderson, 477 U.S. at 252; Dash v. Mayweather,

731 F.3d 303, 311 (4th Cir. 2013) (“[T]he nonmoving party must

rely on more than conclusory allegations, mere speculation, the

building of one inference upon another, or the mere existence of

a scintilla of evidence.”); see also Felty v. Graves-Humphreys

Co., 818 F.2d 1126, 1128 (4th Cir. 1987) (noting that there is an

affirmative duty for “the trial judge to prevent factually

unsupported claims and defenses from proceeding to trial”

(citation and internal quotation marks omitted)). Instead, the

nonmoving party must convince the court that, upon the record taken

as a whole, a rational trier of fact could find for the nonmoving

party. Anderson, 477 U.S. at 248–49. Trial is unnecessary only

if “the facts are undisputed, or if disputed, the dispute is of no

consequence to the dispositive question.” Mitchell v. Data Gen.

Corp., 12 F.3d 1310, 1315–16 (4th Cir. 1993).

1. Whether Sanchez’s Search was a Knock and Talk

Defendants argue that Sanchez’s presence on the Freemans’

property was a lawful “knock and talk,” and so they are entitled

to judgment as to Plaintiffs’ unreasonable search claim. (Doc. 24

at 8–12.) Plaintiffs reply that Sanchez’s journey around the

Freeman property exceeded the scope of the knock and talk exception

to the Fourth Amendment warrant requirement. (Doc. 26 at 8–12.)

The Fourth Amendment guarantees “[t]he right of the people to

be secure in their persons, houses, papers, and effects, against

unreasonable searches and seizures.” U.S. Const. amend. IV.

“[T]he underlying command of the Fourth Amendment is always that

searches and seizures be reasonable.” Wilson v. Arkansas, 514

U.S. 927, 931 (1995) (citation and internal quotation marks

omitted). When a law enforcement officer physically enters a

home’s “curtilage to gather evidence, a search within the meaning

of the Fourth Amendment has occurred.” Collins v. Virginia, 584

U.S. 586, 593 (2018) (citing Florida v. Jardines, 569 U.S. 1, 11

(2013)). An intrusion into a home’s curtilage without a warrant

is “presumptively unreasonable under the Fourth Amendment.”

United States v. McNeil, 126 F.4th 935, 943 (4th Cir. 2025) (citing

Collins, 584 U.S. at 593).

Viewing the evidence in Plaintiffs’ favor reveals a genuine

dispute of material fact regarding whether Sanchez’s entry into

the Freemans’ backyard and onto the back deck placed her in the

area “immediately surrounding and associated with the home”

wherein “privacy expectations are most heightened.” Jardines, 569

U.S. at 6–7 (first quoting Oliver v. United States, 466 U.S. 170,

176 (1984); and then quoting California v. Ciraolo, 476 U.S. 207,

213 (1986)). Kimberly Freeman’s declaration states that the

family’s backyard was “obvious[ly]” a “private area that is not

open to the public.” (Doc. 26-5 ¶ 4.) Sanchez acknowledged that

she could not see the Freemans’ backyard from her parked car, (Doc.

26-3 at 17), and Kimberly Freeman reports that when Sanchez “walked

around the side of [her] house and entered [her] backyard, she

observed a number of items that people could not see from the road

or after parking in [the] driveway” including a lawnmower and a

four-wheeler. (Doc. 26-5 ¶ 5.) Moreover, the Supreme Court has

stated that “[t]he front porch is the classic exemplar” of a home’s

curtilage. Jardines, 569 U.S. at 7. It is impossible to imagine

that homeowners possess a lesser privacy interest in their back

porch and the yard that surrounds it. See also United States v.

Jackson, 728 F.3d 367, 374 (4th Cir. 2013) (holding that the back

patio of an apartment, but not the common area courtyard adjacent

to the patio, qualified as the apartment’s curtilage).

It is true, as Sanchez argues, that a valid “knock-and-talk”

represents an exception to the Fourth Amendment’s requirement that

an officer possess a warrant to enter a home’s curtilage. See

Jardines, 569 U.S. at 8. Broadly speaking, the knock-and-talk

exception permits a police officer not armed with a warrant to

“approach a home and knock, precisely because that is ‘no more

than any private citizen might do.’” Id. (quoting Kentucky v.

King, 563 U.S. 452, 469 (2011). And although modest extensions to

the scope and duration of an officer’s visit may be permitted where

he or she possesses a legitimate law enforcement purpose that

justifies the extension, Alvarez v. Montgomery Cnty., 147 F.3d

354, 358 (4th Cir. 1998), officers may not use a knock and talk as

justification for performing a “general investigation on a home’s

curtilage.” Covey v. Assessor of Ohio Cnty., 777 F.3d. 186, 193

(4th Cir. 2015) (citations omitted).

Determining whether Sanchez’s decision to enter the Freemans’

carport, walk through it and into their backyard, step onto their

back deck, and knock on their back door was a valid “knock-and-

talk” or an unlawful general investigation into the home’s

curtilage will require the court to resolve factual disputes that

are not amenable for summary judgment. On this record, Plaintiffs

have presented evidence that, if credited, would allow a factfinder

to determine that Sanchez exceeded the scope of the limited knock

and talk exception to the Fourth Amendment. Accordingly,

Defendants’ motion for summary judgment on this ground will be

denied.

2. Whether Shooting Major was Unreasonable

Defendants next argue that Sanchez’s decision to shoot Major

was not unreasonable and therefore she is entitled to summary

judgment on Plaintiffs’ unreasonable seizure claim. (Doc. 24 at

13–16.) Plaintiffs respond that the shooting was an unreasonable

seizure unless Major presented an imminent threat to Sanchez’s

safety, which they contend he did not. (Doc. 26 at 16–20.) They

also argue that there are disputed questions of fact that will

bear on the reasonableness of Sanchez’s decision to shoot the dog.

(Id. at 17.)

Here again, genuine disputes of material fact preclude

summary judgment for Defendants. The parties dispute where Major

and Sanchez were positioned when the shooting occurred. Plaintiffs

have offered evidence that Major was near the middle of the deck,

approximately ten feet away from Sanchez, and that Sanchez was on

the steps of the deck, but Sanchez claimed Major was fewer than

two feet away from her. (Doc. 24-4 at 19; Doc. 26-3 at 49.)

Kimberly Freeman also testified that when she first saw Sanchez,

the deputy was on the steps to the deck and already had her gun

out, pointing it at the dog. (Doc. 24-4 at 20-21.) The parties

have also offered competing accounts of Major’s demeanor, which

will bear on the reasonableness of Sanchez’s conclusion that he

posed a threat. Kimberly Freeman reports that Major was underneath

the kitchen window and was not charging or running at the deputy,

but rather standing still. (Doc. 26-5 ¶ 7.) According to her,

Major was “too far away from Deputy Sanchez to bite her or jump on

her when she shot him.” (Id. ¶ 8.) Sanchez testified that Major

was “snarling, growling, showing teeth” and though he jumped when

he came out of the dog door, he “stood there” and she felt “he was

getting ready to pounce” on her. (Doc. 26-3 at 45-46.) The

parties also contest the availability and feasibility of

alternative measures Sanchez could have employed to repel Major.

Sanchez was aware the household had a dog, based on the barking

she heard when she knocked on the front door, and in all prior

experiences she used pepper spray. (Id. at 3–4.) Each of these

disputed questions are material to the determination whether

Sanchez used reasonable force. Summary judgment for Defendants on

this issue is therefore unwarranted.

3. Plaintiffs’ Due Process Claim Related to the

Shooting

Defendants, citing Safar v. Tingle, 859 F.3d 241, 245 (4th

Cir. 2017), point out that “[t]he due process provisions of the

Fourteenth Amendment are inapplicable to a claim of seizure.”

(Doc. 24 at 16.) Plaintiffs did not respond to this argument,

therefore forfeiting any opposition. The court agrees with

Defendants that “the Due Process Clause is simply not implicated”

in this case. Safar, 859 F.3d at 245 (citation and internal

quotation marks omitted). Therefore, Defendants’ motion for

summary judgment will be granted on Plaintiffs’ due process claim

(Fourth Cause of Action).

4. Seabolt and Sanchez Immunity

Defendants contend that Sanchez and Seabolt are protected by

various forms of immunity. (Doc. 24 at 16–24.) Defendants assert

that Sanchez possesses qualified immunity from Plaintiffs’

constitutional claims and public official immunity from their state

tort claims. (Id. at 17–21, 23–24.) They also argue that Seabolt,

sued only in his official capacity as sheriff, is protected by

sovereign immunity. (Id. at 21–23.) Plaintiffs argue that Sanchez

is not entitled to qualified immunity for either constitutional

claim. (Doc. 26 at 12–15, 20–21.) They also contend that she

should be denied public official immunity for the same reasons she

is not entitled to qualified immunity or, alternatively, that a

reasonable juror could conclude she acted with malice. (Id. at 21–

23.) As for Seabolt, Plaintiffs argue he has “waived governmental

immunity in the amount of his surety bond—$25,000;” however, they

“agree with Defendants that [the] general liability policy supports

no further waiver.” (Id. at 21.) Defendants acknowledge that

“assuming any state tort claims survive summary judgment, [Seabolt]

has waived sovereign immunity up to $25,000 by purchase of his

bond.” (Doc. 27 at 11.)

a. Seabolt

There is no genuine dispute of material fact with respect to

Seabolt’s waiver of sovereign immunity. North Carolina sheriffs

“are immune from suit absent a waiver of immunity.” Simmons v.

Corizon Health, Inc., 122 F. Supp. 3d. 255, 268 (M.D.N.C. 2015)

(citing Phillips v. Gray, 592 S.E.2d 229, 232 (N.C. App. 2004)).

But this sovereign immunity may be waived by “by consenting to

suit, purchasing liability insurance, or purchasing a bond.”

Safford v. Barnes, 191 F. Supp. 3d 504, 506 (M.D.N.C. 2016) (citing

Sellers v. Rodriguez, 561 S.E.2d 336, 339 (N.C. App. 2002)). As

both parties agree, Seabolt has waived sovereign immunity to the

extent of his bond coverage — $25,000 — but no more.

b. Qualified Immunity

Qualified immunity shields government officials performing

discretionary functions from personal liability for civil damages

under section 1983, so long as “their conduct does not violate

clearly established statutory or constitutional rights of which a

reasonable person would have known.” Ridpath v. Bd. of Governors

Marshall Univ., 447 F.3d 292, 306 (4th Cir. 2006) (quoting Wilson

v. Layne, 526 U.S. 603, 609 (1999)) (internal quotation marks

omitted). Officials are entitled to immunity unless the section

1983 claim satisfies a two-pronged test: (1) the allegations, if

true, substantiate a violation of a federal statutory or

constitutional right, and (2) the right was “clearly established”

such that a reasonable officer would have known his acts or

omissions violated that right. Id. The court may consider the

prongs in either order, as a plaintiff’s failure to satisfy either

entitles the officer to immunity. Pearson v. Callahan, 555 U.S.

223, 236 (2009). “A Government official’s conduct violates clearly

established law when, at the time of the challenged conduct, the

contours of a right are sufficiently clear that every reasonable

official would have understood that what he is doing violates that

right.” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011) (citation

modified).

Because Plaintiffs have demonstrated genuine disputes of

material fact that bear on whether Sanchez’s conduct violated their

Fourth Amendment rights, the question is whether it was “clearly

established” at the time of the incident in 2022 that her conduct

would violate the Fourth Amendment. See Pearson, 555 U.S. at 236.

Citing Covey v. Assessor of Ohio County, 777 F.3d 186 (4th

Cir. 2015), Plaintiffs argue that at the time of the incident it

was clearly established that Sanchez’s entry into the backyard and

onto the back deck violated the Fourth Amendment. (Doc. 26 at 12–

13.) As Plaintiffs see it, the knock and talk exception is narrow:

it permits an officer to approach a dwelling by the front path and

knock on the front door, but if the officer does not receive a

response, she must “leave without anything more.” (Id. at 12.)

Plaintiffs rely heavily on the Supreme Court’s description of the

knock and talk exception as a license to “approach the home by the

front path, knock promptly, wait briefly to be received, and then

(absent invitation to linger longer) leave.” (Id. at 9 (quoting

Jardines, 569 U.S. at 8) (internal quotation marks omitted).)

Plaintiffs also parrot the Supreme Court’s observation that

compliance with the knock and talk exception is uncomplicated.

(Id.) As the Court majority put it, “[c]omplying with the terms

of that traditional invitation does not require fine-grained legal

knowledge; it is generally managed without incident by the Nation's

Girl Scouts and trick-or-treaters.” Jardines, 569 U.S. at 8. At

the most basic level, Plaintiffs contend, it was clearly

established that an officer who approached the front door of a

dwelling, knocked on it, and, despite not receiving a response,

traveled into the home’s backyard and knocked a second time on the

back door was conducting an unlawful warrantless search rather

than acting pursuant to the knock and talk exception.

Defendants argue that the law was not so cut and dried at the

time of the incident. They point to Alvarez v. Montgomery County,

147 F.3d 354 (4th Cir. 1998), to argue that it was not clearly

established that the knock and talk exception encompassed a single

knock at the front door of the residence, and nothing more. (Doc.

24 at 18.) Defendants also rely on United States v. McNeil, 126

F.4th 935 (4th Cir. 2025), in support of their argument that it

was not clearly established that Sanchez’s second knock at the

Freeman residence exceeded the scope of the knock and talk

exception.

Starting in reverse order, McNeil involved a drug conviction.

Id. at 940. There, the defendant contended on collateral review

that his counsel was ineffective for failing to move to suppress

evidence discovered during a purported knock and talk. Id. After

officers knocked at McNeil’s door, his children told the officers

that he was not home. Id. Evidently undaunted, the officers

proceeded into the backyard and knocked on a small shed behind the

home. Id. The officers discovered McNeil, firearms, and a

quantity of marijuana in the shed. Id. McNeil pleaded guilty to

drug and firearm offenses that were supported by evidence the

police discovered during their investigation of his property, and

his conviction was affirmed on direct review. Id. On collateral

review, the district court rejected McNeil’s claim that his counsel

rendered ineffective assistance by failing to move to suppress the

evidence seized from the shed, finding that the officers’ conduct

was a constitutional knock and talk. Id. at 941.

The Fourth Circuit reversed and directed the district court

to hold an evidentiary hearing on McNeil’s ineffective assistance

of counsel claim. Id. at 945, 947. The panel reasoned in part

that “[n]one of [the Fourth Circuit’s] cases applying Jardines has

approved a curtilage entry after an unsuccessful stop at the front

door, and it is not clear that the police officers here were

entitled to [a] second bite at the apple.” Id. at 944. Therefore,

the panel reasoned, a motion to suppress the evidence may have had

“some substance.” Id. at 943.

Defendants refer to the court’s equivocation that it was “not

clear that the police officers” in McNeil’s case “were entitled to

a second bite at the apple” to argue that it was not “clearly

established” prior to the decision that entering the backyard of

a home after knocking at the front door of a residence was beyond

the scope of the knock and talk exception. (Doc. 24 at 19.) They

also contend that the trial court’s conclusion that the officers’

conduct was a valid knock and talk demonstrates that it was not

“clearly established” that Sanchez’s actions violated the Fourth

Amendment. (Doc. 27 at 6.)

The Fourth Circuit applies a split burden of proof for the

affirmative defense of qualified immunity. Plaintiffs bear the

burden of showing a violation of their rights, and the defendant

bears the burden of proving that the right was not clearly

established. Stanton v. Elliott, 25 F.4th 227, 233 (4th Cir.

2022). For a right to be clearly established, “its contours ‘must

be sufficiently clear that a reasonable official would understand

that what he is doing violates that right.’” Hope v. Pelzer, 536

U.S. 730, 739 (2002) (citations omitted). However, it is not

necessary that the precise “action in question has previously been

held unlawful.” Id. Rather, “in light of pre-existing law the

unlawfulness must be apparent.” Id. (internal quotation marks

omitted). That is to say, an officer has a right to fair notice

of the unlawfulness of the conduct. Id. Where the underlying

facts upon which the qualified immunity question depends are

genuinely disputed, summary judgment should not be granted to a

defendant. Stanton, 25 F.4th at 234 (citing Henry v. Purnell, 652

F.3d 524, 531 (4th Cir. 2011) (en banc)).

Here, Plaintiffs have presented facts which, if believed,

would support a finding of a violation of their Fourth Amendment

rights, and Sanchez has not demonstrated that it was not clearly

established that she lacked the right to extend the license granted

by the knock and talk exception to enter the Freemans’ backyard

and onto the back deck which, under the Freemans’ version of the

disputed facts, led to her shooting the dog.

When Sanchez visited the Freeman home on April 1, 2022, it

was clearly established that a warrantless search of a home’s

curtilage violated the Fourth Amendment. See Collins, 584 U.S. at

593. It was also clearly established that a valid knock and talk,

which the Supreme Court has described as “approach[ing] the home

by the front path, knock[ing] promptly, wait[ing] briefly to be

received, and then (absent invitation to linger longer)

leav[ing],” is an exception to this general rule. Jardines, 569

U.S. at 8. Had this been all Sanchez did, she would have been

entitled to summary judgment on Plaintiffs’ claim for an

unreasonable search based on qualified immunity. But the record

instead contains material disputes that bear on whether Sanchez

violated Plaintiffs’ clearly established right to be free from

warrantless searches of the curtilage of their home; namely,

whether Sanchez entered the home’s curtilage without a warrant

and, if so, whether in doing so she exceeded the scope of her

authority under the Fourth Amendment. See Stanton, 25 F.4th at

237 (finding grant of summary judgment on qualified immunity in

officer’s favor improper where a genuine dispute of fact remained

“that might prove a violation of a clearly established right”).

Defendants’ reliance on Alvarez does not compel a different

result. Alvarez is factually distinguishable and, importantly,

predates the Supreme Court’s decision in Jardines by fifteen years.

In Alvarez, officers investigating a report of underage drinking

at a neighborhood party located a home with alcohol containers

strewn about the front yard and “several cars parked there in an

‘odd’ fashion.” 147 F.3d at 356. The officers “approached the

front door intending to notify the [homeowners] of the complaint

and to request that no one drive away from the party while

intoxicated.” Id. at 357. But once they arrived at the home’s

front stoop, they noticed a sign that read “Party In Back” and

displayed an arrow pointing towards the home’s backyard. Id.

After seeing the sign, the officers did not knock, and instead

proceeded directly to the backyard. Id. The homeowners sued

pursuant to section 1983, alleging in relevant part “that the

officers’ warrantless entry into their backyard violated the

Fourth Amendment.” Id. The Fourth Circuit found no Fourth

Amendment violation because the officers possessed a legitimate

reason for entering the backyard that was not connected to a desire

to search the premises: they believed they would be able to “speak

with the party’s host” there. Id. at 358–59. Therefore, “[i]t

was not unreasonable” for the officers “to enter the backyard when

circumstances indicated they might find the homeowner there.” Id.

at 359.

Here, the evidence, viewed in Plaintiffs’ favor, fails to

support any reason Sanchez would have believed she would find the

homeowners in their backyard or on the back deck. Sanchez admitted

as much in her deposition. (Doc. 26-3 at 21.) And to the extent

Alvarez could be read to sanction a broader understanding of the

knock and talk exception to the warrant requirement than the

Supreme Court endorsed in Jardines, it has been abrogated. See

also McNeil, 126 F.4th at 944 (“None of our cases applying Jardines

has approved a curtilage entry after an unsuccessful stop at the

front door, and it is not clear that the police officers here were

entitled to this second bite at the apple.”). A jury could find

that the evidence indicates that the Freemans’ back deck and doors

were not areas regularly used by the general public to access the

home, but were rather part of the home’s private curtilage.

Accordingly, Defendants’ motion for summary judgment on

Plaintiff’s unreasonable search claim based on qualified immunity

will be denied.

The parties’ briefing devoted considerably less attention to

whether it was clearly established that Sanchez’s decision to shoot

Major violated the Fourth Amendment. Nevertheless, to the extent

Defendants seek summary judgment on this basis as well based on

qualified immunity, it will be denied. In Ray v. Roane, the Fourth

Circuit concluded that “it is well-settled that privately owned

dogs are effects under the Fourth Amendment, and that the shooting

and killing of such a dog constitutes a seizure.” 948 F.3d 222,

227 (4th Cir. 2020) (citation modified). “The use of deadly force

against a household pet is reasonable only if the pet poses an

immediate danger and the use of force is unavoidable.” Id. at 230

(citation modified). And where there are questions of fact that

bear on whether an officer’s decision to shoot a privately-owned

dog was reasonable, summary judgment is inappropriate. See Ray v.

Roane, 93 F.4th 651, 652-53, 658 (4th Cir. 2024) (“Ray II”). Here,

as noted previously, Plaintiffs have produced evidence that

sufficiently disputes Sanchez’s claim that Major posed an

immediate threat to her and that her decision to fire her sidearm

was reasonable. See Ray II, 93 F.4th at 655 (“By the time of the

shooting in 2017 . . . it was clearly established . . . that ‘the

use of deadly force against a household pet is reasonable only if

the pet poses an immediate danger and the use of force is

unavoidable.” (citations omitted)). Consequently, Defendants’

motion for summary judgment on Plaintiff’s excessive force claim

based on qualified immunity will be denied.

c. Public Official Immunity

Defendants argue that even if Sanchez is not entitled to

qualified immunity, she is entitled to public official immunity

for the state law claims under North Carolina law. (Doc. 24 at

23–24; Doc. 27 at 11–12.) Plaintiffs contend that public official

immunity may be pierced if the plaintiff proffers evidence from

which “[a] jury could find Sanchez acted with malice.” (Doc. 26

at 21–23).

In North Carolina, the doctrine of public official immunity

“protects public officials from individual liability for

negligence in the performance of their governmental or

discretionary duties.” Campbell v. Anderson, 576 S.E.2d 726, 730

(N.C. App. 2003) (citing Harwood v. Johnson, 388 S.E.2d 439, 445

(N.C. 1990)). Police officers are public officials who “enjoy

absolute immunity from personal liability for their discretionary

acts done without corruption or malice.” Schlossberg v. Goins,

540 S.E.2d 49, 56 (N.C. App. 2000) (citation omitted). North

Carolina presumes that a public official in the performance of his

official duties “acts fairly, impartially, and in good faith and

in the exercise of sound judgment or discretion, for the purpose

of promoting the public good and protecting the public interest.”

Greene v. Town of Valdese, 291 S.E.2d 630, 632 (N.C.

1982) (citation modified). Thus, a public official is entitled to

immunity from suit in his individual capacity “unless he engaged

in discretionary actions which were allegedly: (1) corrupt; (2)

malicious; (3) outside of and beyond the scope of his duties; (4)

in bad faith; or (5) willful and deliberate.” Smith v. Jackson

Cnty. Bd. of Educ., 608 S.E.2d 399, 411 (N.C. App. 2005) (citations

and internal quotation marks omitted). “To survive a motion for

summary judgment based on public official immunity, a plaintiff

must make a prima facie showing that the defendant-official's

tortious conduct falls within one of the immunity exceptions.”

Bartley v. City of High Point, 873 S.E.2d 525, 534 (N.C. 2022)

(citing Dempsey v. Halford, 645 S.E.2d 201 (N.C. App. 2007)).

“A defendant acts with malice when he wantonly does that which

a man of reasonable intelligence would know to be contrary to his

duty and which he intends to be prejudicial or injurious to

another.” Thomas v. Sellers, 542 S.E.2d 283, 286 (N.C. App. 2001)

(quoting Grad v. Kaasa, 321 S.E.2d 888, 890 (N.C. 1984)). North

Carolina courts have explained that unlike the federal immunity

standard, which is an objective test, the North Carolina standard

(at least as to malice and corruption) is an inquiry into the

subjective state of mind of the government actor. Andrews v.

Crump, 547 S.E.2d 117, 123 (N.C. App. 2001); cf. Cooper v. Sheehan,

735 F.3d 153, 160 (4th Cir. 2013) (explaining that the state law

“man of reasonable intelligence standard” is “functionally

identical” to federal “clearly established” standard).

Here, Plaintiffs focus solely on the “malice” exception to

public official immunity.3 They have failed to produce or identify

3 Plaintiffs offer a passing remark that “Sanchez acting with such

disregard for the Freemans’ constitutional rights cannot square with her

duties as a law enforcement officer[,]” but they do not develop an

argument that she was acting outside of or beyond the scope of her duties

as an officer as grounds for piercing immunity. (Doc. 26 at 22.)

any evidence suggesting that Sanchez entered their backyard with

the subjective intent to prejudice or injure them or their

property. See Thomas, 542 S.E.2d at 286. Contrary to their

argument in opposition to summary judgment, Plaintiffs’ evidence

does not support an inference that Sanchez’s decision to enter the

backyard and knock on the back door was “plainly intended to

injure.” (Doc 26 at 22.) Instead, the evidence suggests she was

simply attempting serve Larry Freeman with the show cause order in

a manner consistent with her training even though, Plaintiffs

argue, that training was unconstitutional. That fails to

demonstrate that she “maliciously” violated the Fourth Amendment,

particularly where the law presumes “that public officials will

discharge their duties in good faith and exercise their powers in

accord with the spirit and purpose of the law” absent evidence to

the contrary. Bartley, 873 S.E.2d at 533 (citation modified).

Accordingly, Sanchez is entitled to public immunity with respect

to Plaintiffs’ trespass claim, and Defendants’ motion for summary

judgment will be granted on this claim.

There are, however, genuine disputes of material fact that

could allow a jury to conclude that Sanchez acted maliciously in

needlessly shooting Major. Viewed in the light most favorable to

Plaintiffs, the evidence suggests that Major was approximately ten

feet away from Sanchez when she fired her weapon and that he was

not behaving aggressively toward her. (Doc. 26-3 at 19; Doc. 26-

5 ¶¶ 7–8.) A jury might also infer malice from the evidence that

Sanchez had previously successfully repelled aggressive dogs on

numerous occasions using her pepper spray but elected to shoot

Major instead. (Doc. 26-3 at 3–8.) And while Sanchez did state

that she did not have time to resort to her pepper spray, it is up

to a jury whether to credit that explanation, especially in light

of the fact that Sanchez acknowledged awareness of a family dog

barking when she knocked at the front door. Defendants argue that

the fact that Sanchez was upset and crying after shooting Major,

and kept saying she was “sorry,” counters this conclusion. (Doc.

27 at 12.) While this may be persuasive to a jury, on summary

judgment, the court cannot weigh these facts. The Plaintiffs’

facts, if credited, would permit a jury to find that Sanchez’s

decision to shoot Major was malicious (even if she was thereafter

sorry to have done so), that an officer of reasonable intelligence

would have known it was contrary to her duty to do that, and that

the shooting was calculated to prejudice or injury Plaintiffs’

property. See Thomas, 542 S.E.2d at 286. Consequently, Sanchez

is not entitled to summary judgment on Plaintiffs’ remaining state

tort claims based on public official immunity.

5. Plaintiffs’ Remaining State Law Claims

Defendants argue for summary judgment as to Plaintiffs’ state

law claims for trespass to chattels, conversion, assault,

negligent infliction of emotional distress, and intentional

infliction of emotional distress on the ground that Sanchez’s

conduct was lawful. (Doc. 24 at 24–26.) Plaintiffs respond that

Sanchez’s conduct was unlawful and that a jury could find that by

“invading a private backyard and shooting a dog that had barked at

her,” Sanchez performed an act that can serve as the predicate for

each of these claims, including intentional infliction of

emotional distress. (Doc. 26 at 23–26.)

Defendants have not shown they are entitled to summary

judgment on Plaintiffs’ intentional tort claims. There are genuine

disputes of material fact as to each of them. As Defendants

concede: Trespass to chattel requires an “unauthorized, unlawful

interference or dispossession of the property.” Fordham v. Eason,

521 S.E.2d 701, 704 (N.C. 1999) (citations omitted). Conversion,

“in effect,” has two essential elements: “ownership in the

plaintiff and wrongful possession or conversion by the defendant.”

Variety Wholesalers, Inc. v. Salem Logistics Traffic Servs., LLC,

723 S.E.2d 744, 747 (N.C. 2012) (citation omitted). Proof of

assault requires “intent, offer of injury, reasonable

apprehension, apparent ability, and imminent threat of injury.”

Hawkins v. Hawkins, 400 S.E.2d 472, 475 (N.C. App. 1991) (citation

omitted). Here, Plaintiffs have provided evidence that, if

credited, would tend to establish that Sanchez’s use of force in

shooting Major was unlawful, wrongful, and caused Kimberly Freeman

and C.B. to fear imminent bodily injury. As to Plaintiffs’ claim

of intentional infliction of emotional distress, the gravamen of

that claim is proof that a defendant’s conduct was “so outrageous

in character, and so extreme in degree, as to go beyond all

possible bounds of decency, and to be regarded as atrocious, and

utterly intolerable in a civilized community.” Clark v. Clark,

867 S.E.2d 704, 715 (N.C. App. 2021) (citation and internal

quotation marks omitted). If a jury were to credit Kimberly

Freeman’s testimony, it could find that Sanchez’s shooting of the

dog under the circumstances was an overreaction and extreme and

outrageous. Thus, summary judgment on this claim will be denied

as well.

Finally, Defendants contend that Plaintiffs’ claim for

negligent infliction of emotional distress alleges only negligence

and is therefore barred by official immunity. (Doc. 24 at 25.)

Plaintiffs respond that because they have offered proof of malice,

as noted above, they are entitled to proceed on this claim. (Doc.

26 at 23.) At least at this stage, Plaintiffs are correct.

Plaintiffs’ proffer of evidence as to malice suffices to require

a jury to resolve this factual issue. See Russ v. Causey, 468 F.

App’x 267, 272-76 (4th Cir. 2012) (unpublished) (permitting claim

of negligent infliction of emotional distress to proceed based on

evidence of malice, and noting that “malice, for the purposes of

piercing the cloak of [a] public officer’s immunity” may be shown

“by conduct: (1) ‘when done needlessly, manifesting a reckless

indifference to the rights of others,’ (2) ‘which a person of

reasonable intelligence would know to be contrary to [her]

duty,’ and (3) ‘which is intended to be prejudicial or injurious

to another’) (original alterations adopted) (citations omitted).4

For this reason, Defendants’ motion for summary judgment with

respect to Plaintiffs’ this claim will be denied.

6. Cincinnati Insurance Company Liability

Defendants concede that Cincinnati Insurance Company’s

liability is derivative of the liability of Sanchez and Sheriff

Seabolt under North Carolina General Statute § 58-76-5. (Doc. 24

at 26.) Because the court has declined to grant Defendants’ motion

for summary judgment as to Seabolt (to the extent of coverage) and

Sanchez, entry of summary judgment in Cincinnati Insurance

Company’s favor is inappropriate. The motion will therefore be

denied.

III. CONCLUSION

For the reasons stated,

IT IS THEREFORE ORDERED that Plaintiff’s motion for leave to

file an amended complaint (Doc. 18) is GRANTED. Plaintiff shall

file the amended complaint (Doc. 18-1) as a separate pleading

within five (5) days of the date of this Order. The amended

4 Unpublished opinions of the Fourth Circuit are not precedential but

can be cited for their persuasive, but not controlling, authority. See

Collins v. Pond Creek Mining Co., 468 F.3d 213, 219 (4th Cir. 2006).

complaint will be deemed timely filed as of March 28, 2025.

IT IS FURTHER ORDERED that Defendants’ motion for summary

judgment (Doc. 23) is GRANTED as to Plaintiffs’ Second Cause of

Action (Trespass) and Fourth Cause of Action (U.S.C. § 1983 and

U.S. Const. Amend. XIV – Intentional Deprivation of Property

without Due Process of Law), and those claims are DISMISSED. The

motion is otherwise DENIED.

/s/ Thomas D. Schroeder

United States District Judge

August 20, 2025