# FREEMAN v. SANCHEZ

> District Court, M.D. North Carolina · August 20, 2025

URL: https://www.frixlaw.com/law-library/cases/11124328

## Case

- **Court:** District Court, M.D. North Carolina
- **Decided:** August 20, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11124328

## How later opinions describe it (automated extraction)

- 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”
- 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)
- explaining that the state law “man of reasonable intelligence standard” is “functionally identical” to federal “clearly established” standard
- noting that “the grant or denial of an opportunity to amend is within the discretion of the District Court”

## Opinion text

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:
Bret a Prarrry = oh
Oe ee ae i
——_——_—_- i een
Paik ee ie ie a
~

(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:

Se E □ i}
Se) = al
Se ee | me
———_
| i le oo
| ar a | ASS
a L |||
a Ai □
| ees hs = = ——— NP
A re | c= = |

a =e
a = —
en ee

i
————
(Doc. 26-8.)
An aerial photograph of the Freemans’ property submitted by
Plaintiffs is included here:

AL al ee EXHIBIT
a 7 ho

AN, : Apia re Sa
we Pad
eo
Tae? aS .

wee | a a ey.
oe a 4 7 S a a
a □□ 4 7 , □ oA Js c
oie Hei. oihs go
oie ae satellite

(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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11124328. Public record. Not legal advice.