ATKINSON v. CREDIT ACCEPTANCE CORPORATION

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

LESLIE ATKINSON, )

)

Plaintiff, )

)

v. ) 1:22-cv-369

)

WAYNE COATS, in his official )

capacity as Sheriff of )

Harnett County, North Carolina, )

)

Defendant. )

MEMORANDUM OPINION AND ORDER

OSTEEN, JR., District Judge

This case is before this court on remand following the

Fourth Circuit’s opinion in Atkinson v. Godfrey, 100 F.4th 498

(2024). In light of that opinion, this court directed the

parties to file their respective positions on the issue of

municipal liability. (Text Order 07/26/2024.) Both parties have

responded. (Docs. 54, 55, 56.) Upon reconsidering this court’s

Memorandum Opinion and Order denying Defendants’ Motion to

Dismiss, (Doc. 45), this court will vacate its previous denial

and will dismiss all claims as to Defendant Harnett County

Sheriff Wayne Coats (hereinafter “Coats”).

I. FACTUAL BACKGROUND

The facts of this case are more fully set forth in detail

in this court’s previous Memorandum Opinion and Order. (Mem. Op.

& Order (“MTD Order”) (Doc. 45) at 2–4.)1 Relevant facts will be

discussed as pertinent to Plaintiff’s claims against Coats.

In the course of an argument that arose during a disputed

vehicle repossession, Carolina Repo, LLC (hereinafter “CR”)

contacted the Harnett County Sheriff’s Office (hereinafter

“HCSO”) for assistance. (Compl. (Doc. 1) ¶ 73.) When Deputy

Brent Godfrey (hereinafter “Godfrey”) arrived, he saw Plaintiff

in her vehicle “lifted into the air” by a tow bar. (Id. ¶ 95.)

Godfrey then approached Plaintiff and ordered her to exit the

vehicle. (Id. ¶ 102.) Plaintiff exited the vehicle, and CR

completed the repossession. (Id. ¶ 103, 108.) Plaintiff explains

that HCSO, and thus Coats, should be liable for her injuries by

“act[ing] in concert” with CR to “accomplish the repossession.”

(Id. ¶ 106.) Plaintiff asserts that CR called HCSO because it

knew that HCSO “has a policy of assisting secured parties with

the self-help repossession of collateral.” (Id. ¶ 82.)

II. PROCEDURAL HISTORY

Coats and Godfrey moved to dismiss Plaintiff’s claims

against them pursuant to Federal Rules of Civil Procedure

12(b)(1) and 12(b)(6). (Mot. to Dismiss Defs. Brent Godfrey &

1 All citations in this Memorandum Opinion and Order to

documents filed with the court refer to the page numbers located

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

on CM/ECF.

Sheriff Wayne Coats (“Defs.’ Mot.”) (Doc. 18).) This court

denied Defendants’ motion, determining that Plaintiffs’ claims

against Godfrey in his individual capacity and Coats in his

official capacity could not be decided as a matter of law based

on the allegations of the complaint. (MTD Opinion (Doc. 45) at

14–15.) Defendants appealed this determination, (Defs.’ Notice

of Appeal (Doc. 46)), and the Fourth Circuit reversed this

court’s decision on qualified immunity, (Doc. 50), and issued

its formal mandate ordering a dismissal of all claims against

Godfrey, (Doc. 53).

In its opinion, the Fourth Circuit explained that Godfrey

was entitled to qualified immunity because “neither the Supreme

Court, our Court nor North Carolina’s high court has provided

fair warning that conduct like Godfrey’s was unconstitutional.”

Atkinson, 100 F.4th at 508. Additionally, there was no consensus

from “other courts of appeals that would have provided fair

warning to a reasonable officer standing in Godfrey’s shoes.”

Id.

Next, the Fourth Circuit “decline[d] to exercise

jurisdiction” over Plaintiff’s claims against Coats because the

municipal liability claims were “not inextricably intertwined

with [the] resolution of the qualified immunity issues.” Id. at

509. Despite “the rules of pendent jurisdiction” counseling the

court into “staying our hand,” the court noted that “it may be

less likely that a municipality may be found liable when the

constitutional terrain was as murky as that here.” Id. Judge

Wilkinson further articulated in a concurring opinion that “the

whole idea of fair notice that lies at the heart of qualified

immunity for individuals need not be wholly abandoned when

policymakers are concerned.” Id. at 510 (Wilkinson, J.,

concurring).

From the Fourth Circuit’s opinion, this court identified

that its decision as to Defendant Coats should be reconsidered.

See White v. City of Greensboro, 586 F. Supp. 3d 466, 491

(M.D.N.C. 2022) (citing Sewell Plastics Inc. v. Coca-Cola Co.,

912 F.2d 463, n.1 (4th Cir. 1990)). This court directed the

parties to file their respective positions on the issue of

municipal liability. (Text Order 07/26/2024.) As instructed,

both parties filed statements and briefs as to how this case

should proceed. (Pl.’s Position Statement (“Pl.’s Resp. to Text

Order”) (Doc. 54); Defs.’ Br. in Supp. of Recons. (“Defs.’ Resp.

to Text Order 1”) (Doc. 55); Defs.’ Suppl. Br. in Supp. of

Recons. (“Defs.’ Resp. to Text Order 2”) (Doc. 56).)

After considering the parties’ arguments, the Fourth

Circuit’s opinion, and recently established Fourth Circuit

precedent on municipal liability, this court vacates its denial

of Defendants’ motion to dismiss Plaintiff’s municipal liability

claims, (MTD Order (Doc. 45)). This court accordingly grants

Defendants’ motion to dismiss, (Defs.’ Mot. (Doc. 18)).

III. STANDARD OF REVIEW

To survive a Rule 12(b)(6) motion, “a complaint must

contain sufficient factual matter, accepted as true, to ‘state a

claim to relief that is plausible on its face.’” Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible on its

face if “the plaintiff pleads factual content that allows the

court to draw the reasonable inference that the defendant is

liable” and demonstrates “more than a sheer possibility that a

defendant has acted unlawfully.” Id. (citing Twombly, 550 U.S.

at 556–57).

When ruling on a motion to dismiss, this court accepts the

complaint’s factual allegations as true. Id. Further, this court

liberally construes “the complaint, including all reasonable

inferences therefrom, . . . in plaintiff’s favor.” Est. of

Williams-Moore v. All. One Receivables Mgmt., Inc., 335 F. Supp.

2d 636, 646 (M.D.N.C. 2004) (citation omitted). This court does

not, however, accept legal conclusions as true, and

“[t]hreadbare recitals of the elements of a cause of action,

supported by mere conclusory statements, do not suffice.” Iqbal,

556 U.S. at 678.

In the context of municipal liability, the Fourth Circuit

has explained that “[a]lthough prevailing on the merits of a

Monell claim is difficult, simply alleging such a claim is, by

definition, easier.” Owens v. Baltimore City State's Att'ys

Off., 767 F.3d 379, 403 (4th Cir. 2014). This is because, under

Twombly and Iqbal, “the recitation of facts need not be

particularly detailed, and the chance of success need not be

particularly high.” Id. (citing Iqbal, 556 U.S. at 678; Twombly,

550 U.S. at 570). However, a plaintiff fails to state a claim in

this context when the plaintiff “offers ‘labels and conclusions’

or formulaically recites the elements of his § 1983 cause of

action.” Id. (citing Iqbal, 556 U.S. at 678). “[M]erely stating

the legal conclusion” that an officer has, for example, “final

policymaking authority does not make it so.” Misjuns v. City of

Lynchburg, 139 F.4th 378, 385 (4th Cir. 2025).

IV. ANALYSIS

Plaintiff argues that her “case against Coats remains

unchanged” because the Fourth Circuit “declined to exercise

jurisdiction over Coats’s appeal” after establishing that “(1)

his appeal was not inextricably intertwined with Godfrey’s

qualified immunity defense; (2) qualified immunity does not

apply to [Plaintiff’s] claims against Coats in his official

capacity; and (3) the Fourth Circuit did not reverse this

Court’s finding that [Plaintiff] adequately pleaded a violation

of her constitutional rights.” (Pl.’s Resp. to Text Order (Doc.

54) at 1–2.) Conversely, Defendants contend that “in light of

the Fourth Circuit’s holding, Plaintiff cannot allege or argue

that the HCSO could have been on notice that any of its

training, policies, or practices were deficient or needed to be

changed.” (Defs.’ Resp. to Text Order 1 (Doc. 55) at 7–8.) This

court finds that while the Fourth Circuit declined to address

Plaintiff’s municipal liability claims, the Fourth Circuit’s

conclusions on Plaintiff’s qualified immunity claims inform this

court’s municipal liability analysis and support a dismissal of

the claims against Coats. Additionally, the Fourth Circuit’s

recent opinion in Misjuns further supports this conclusion. 139

F.4th at 384–86.

In Monell v. Department of Social Services, the Supreme

Court explained that a municipality “can be sued directly under

§ 1983 for monetary, declaratory, or injunctive relief

where . . . the action that is alleged to be unconstitutional

implements or executes a policy statement, ordinance,

regulation, or decision officially adopted and promulgated by

that body’s officers.” 436 U.S. 658, 690 (1978). The Fourth

Circuit has explained that “Monell permits suits against a

municipality for a federal constitutional deprivation only when

the municipality undertook the allegedly unconstitutional action

pursuant to an ‘official policy’ or ‘custom.’” Starbuck v.

Williamsburg James City Cnty. Sch. Bd., 28 F.4th 529, 532–33

(4th Cir. 2022) (quoting Monell, 436 U.S. at 690–91).

Recognizing that “not every deprivation of a constitutional

right will lead to municipal liability,” Lytle v. Doyle, 326

F.3d 463, 471 (4th Cir. 2003), the Fourth Circuit applied Monell

and its progeny and articulated that:

A policy or custom for which a municipality may be held

liable can arise in four ways: (1) through an express

policy, such as a written ordinance or regulation; (2)

through the decisions of a person with final

policymaking authority; (3) through an omission, such as

a failure to properly train officers, that “manifest[s]

deliberate indifference to the rights of citizens”; or

(4) through a practice that is so “persistent and

widespread” as to constitute a “custom or usage with the

force of law.”

Id. (quoting Carter v. Morris, 164 F.3d 215, 217 (4th Cir.

1999). These four “methods” continue to guide the Fourth

Circuit’s framework on municipal liability. See Howard v. City

of Durham, 68 F.4th 934, 952 (4th Cir. 2023); see also Misjuns,

139 F.4th at 384; Starbuck, 28 F.4th at 533.

Beyond recognizing instances of policies or customs, the

Fourth Circuit has also established the appropriate causal

standard for determining when an official is liable. Generally,

to state a claim for “Monell liability,” a plaintiff “must show

that the execution of a policy or custom of the municipality

caused the violation.” Misjuns, 139 F.4th at 384 (citing Hall v.

Marion Sch. Dist. No. 2, 31 F.3d 183, 195 (4th Cir. 1994).

But because the third theory contemplates a municipality’s

omissions instead of actions, the appropriate standard is

“deliberate indifference.” Est. of Jones v. City of Martinsburg,

961 F.3d 661, 672 (4th Cir. 2020), as amended (June 10, 2020)

(quoting City of Canton v. Harris, 489 U.S. 378, 388 (1989)).

Mindful that “[i]solated, unprecedented incidents” are

“insufficient to create municipal liability,” Doe v. Broderick,

225 F.3d 440, 456 (4th Cir. 2000), the Fourth Circuit explained

that “any deficiency in training” must be due to a “conscious

choice by a municipality.” Est. of Jones, 961 F.3d at 672

(quoting Broderick, 225 F.3d at 456). In other words, the

“strict Monell test asks for some level of notice” such that “a

municipality either knew or should have known about the

deficiency, so it could remedy that deficiency.” Id.

Here, this court finds that Plaintiff has failed to state a

claim for relief after considering both the Fourth Circuit’s

decision on Godfrey’s qualified immunity, Atkinson, 100 F.4th at

508, and another recent decision on municipal liability.

Misjuns, 138 F.4th at 384–87. This court is mindful of its

previous denial of Defendants’ motion to dismiss and its

decision that “this court is not able to find, as a matter of

law at this stage of the proceedings, that the claim against

Coats is subject to dismissal” because “discovery may or may not

disclose facts upon which Monell liability may be established.”

(MTD Opinion (Doc. 45) at 15.) However, the Fourth Circuit’s

determination that Plaintiff’s asserted constitutional right was

“too general to have clearly established that Godfrey’s conduct

was unconstitutional at the time of repossession” clarifies the

third recognized claim based on omissions and failure to train.

Atkinson, 100 F.4th at 506. Furthermore, Misjuns clarifies and

confirms, as suggested by the court in Atkinson, 100 F.4th at

508, that Plaintiff has not plead facts adequate to support the

fourth theory of widespread practices. 139 F.4th at 386.

Finally, the first and second theories cannot be established by

Plaintiff’s pleadings. Therefore, dismissal is appropriate.

A. Express Policy

Plaintiff argues that “[u]pon information and belief, HSCO

[sic] has a policy of assisting secured parties with the self-

help repossession of collateral.” (Compl. (Doc. 1) ¶ 82.)

Additionally, Plaintiff alleges that “[a]s a policy maker for

HCSO, Coats created, promulgated, and maintained policies which

deprived [Plaintiff] of her Constitutional right to be protected

from unlawful seizures and from being deprived of property

without due process.” (Id. ¶ 188.) Conversely, Defendants

contend that Plaintiff’s “multiple boilerplate averments about

HCSO” do not “point to any other actual incidents where HCSO

became actively involved in a repossession or assisted in an

unlawful repossession.” (Defs.’ Resp. to Text Order 1 (Doc. 55)

at 5–6.)

This court finds that Plaintiff has failed to plead facts

sufficient to plausibly infer that an express policy exists.

Under this first recognized theory of municipal liability,

Plaintiff “must point to an ‘express policy,’ that is, ‘formal

rules or understandings . . . that are intended to, and do,

establish fixed plans of action to be followed under similar

circumstances consistently and over time.” Howard, 68 F.4th at

952 (quoting Pembaur v. City of Cincinnati, 475 U.S. 469, 480–81

(1986)). A “foundational principle of Monell liability” is that

“municipalities are liable only for ‘acts which the municipality

has officially sanctioned or ordered.’” Id. at 954 (quoting

Pembaur, 475 U.S. at 480). Thus, Plaintiff must not only plead

facts sufficient to infer that an express policy existed and was

consistently followed, but also “provide proof it was approved

of” by the municipality. Id.

Here, Plaintiff has failed to create the plausible

inference that an express policy existed. This court agrees with

Defendants that “nearly all of” Plaintiff’s averments are

“[u]pon information and belief.” (Defs.’ Resp. to Text Order 1

(Doc. 55) at 5.) Such “conclusory allegations based solely ‘upon

information and belief’ are ‘insufficient to defeat a motion to

dismiss.’” Mystic Retreat Med Spa & Weight Loss Ctr. v.

Ascentium Cap. LLC, 615 F. Supp. 3d 379, 384 (M.D.N.C. 2022)

(quoting Harman v. Unisys Corp., 365 F. App’x 638, 640–41 (4th

Cir. 2009) (unpublished, per curiam opinion)). Plaintiff “cannot

merely plop ‘upon information and belief’ in front of a

conclusory allegation and thereby render it non-conclusory.” Id.

at 385 (quoting Citizens United v. Schneiderman, 882 F.3d 374,

384 (2d Cir. 2018)).

Not all of Plaintiff’s contentions are conclusions made

“[u]pon information and belief.” Plaintiff provides “facts

supporting the existence of that policy,” which include CR

calling HCSO “because it understood HCSO maintained a policy of

assisting with repossessions” and that “HCSO did not deny that

such a policy existed when CR mentioned it.” (Pl.’s Resp. to

Defs.’ Mot. to Dismiss (“Pl.’s Resp.”) (Doc. 27) at 21.) These

facts, taken as true, do not support that an unconstitutional

policy exists, that the policy was sanctioned by the

municipality, or that the policy was consistently followed.

“Assistance with repossessions” is very broad and supports only

an inference that the assistance extends to lawful support and

not unconstitutional conduct.

As explained by the Fourth Circuit in the context of

municipal liability, non-conclusory facts at the motion to

dismiss stage must “len[d] credence” to the argument that a

municipality “‘encouraged, or at least tolerated’ an

impermissible practice.” Owens, 767 F.3d at 403–04 (quoting

Haley v. City of Boston, 657 F.3d 39, 53 (1st Cir. 2014)).

Plaintiff must assert factual allegations, “the veracity of

which could plausibly support a Monell claim.” Id. at 403. This

additional support may include “reported and unreported cases,”

“successful motions,” or a “volume of cases” involving “similar

violations” by a municipality. Id. (quoting Haley, 657 F.3d at

53). Such support may not include, however, facts that allege

nothing “more than a municipality’s adherence to an

impermissible custom.” Id. at 403.

Plaintiff’s supporting facts reveal that CR called HCSO and

an officer from HCSO arrived at the scene. No independent facts

outside of the event in controversy support or “buttress”

Plaintiff’s “legal conclusion.” See id. Instead, Plaintiff’s

non-conclusory facts alleging an express policy are limited to

the facts arising from the disputed vehicle repossession. As

such, the allegation that the officer arrived pursuant to a

known policy is a legal conclusion appended to an

incontrovertible fact. Even assuming that Plaintiff was able to

plead supporting facts beyond the event in controversy,

Plaintiff has failed to articulate that HCSO consistently

followed this practice and that a policymaker both recognized

and approved that practice. Therefore, this court finds that

Plaintiff has failed to establish the first recognized claim

based on an express policy.

B. Final Policymaking Authority

Next, Plaintiff contends that “[a]t all relevant times,

Coats was a final policy maker with respect to HCSO’s law

enforcement activities.” (Compl. (Doc. 1) ¶ 186.) Plaintiff

explains that “[u]pon information and belief,” Godfrey’s actions

“were pursuant to the following customs, policies, practices,

and/or procedures of HCSO, which Coats created, promulgated,

and/or maintained, and/or which he directed, encouraged,

allowed, and/or ratified . . . as policy for HCSO.” (Id. ¶ 189.)

Defendants argue that municipal liability requires both

“specific policies and/or practices, and allege a direct causal

link between such practices and the underlying conduct.” (Defs.’

Br. in Supp. of Mot. to Dismiss (“Defs.’ Br.”) (Doc. 19) at 16.)

This second theory contains two elements: first, the

individual must be a person with final policymaking authority,

Misjuns, 139 F.4th at 385; second, the person with such

authority must make a decision, Starbuck, 28 F.4th at 535–36.

Under the first element, Plaintiff has failed to plead facts

sufficient to infer final policymaking authority. The Fourth

Circuit identified a “marked difference” between “the authority

to make final policy,” which “give[s] rise to municipal

liability based on an exercise of that discretion,” and merely

“the authority to make final implementing decisions.” Misjuns,

139 F.4th at 385 (first quoting Hunter v. Town of Mocksville,

N.C., 897 F.3d 538, 555 (4th Cir. 2018); then quoting Pembaur,

475 U.S. at 482). Determining final policymaking authority is

context specific. Where a “County Sheriff” can fire employees,

that Sheriff may not be “the county official responsible for

establishing county employment policy.” Id. (quoting Pembaur,

475 U.S. at 483 n.12). In other words, the ability to enforce

policies does not necessarily establish the authority to create

policies.

The facts here, taken as true, do not establish that Coats

has final policymaking authority. While Coats as Sheriff

certainly retains vested authority, Plaintiff has failed to

articulate the scope and extent of that authority. Plaintiff has

not explained how HCSO policy is created and enforced. Plaintiff

has also failed to identify which decisionmakers are responsible

for designing HCSO policy. Finally, Plaintiff has not

established whether the alleged policy was created by HSCO or

another municipal body responsible for administering training

and educational standards for law enforcement. See N.C. Gen.

Stat. § 17(E) et seq. While Plaintiff has stated that “Coats

created, promulgated, and/or maintained” the “customs, policies,

practices, and/or procedures of HCSO,” (Compl. (Doc. 1) ¶ 189),

the Fourth Circuit has recognized that “merely stating the legal

conclusion that [an official] had final policymaking authority

does not make it so.” Misjuns, 138 F.4th at 385.

Next, even assuming that Coats is a final policymaking

authority, Plaintiff has failed to establish that Coats made a

decision that constituted “the moving force behind the asserted

constitutional violation.” Starbuck, 28 F.4th at 535. In

Starbuck, the Fourth Circuit explained that either ratification

or independent action by a School Board could constitute a

decision “sufficient to hold the School Board liable.” Id. While

“initial involvement” is not required to hold officials liable,”

id., the Fourth Circuit maintained that the Board’s upholding a

student’s suspension was a decision that constituted a “moving

force” because the suspension “remain[s] on his permanent

record.” Id.

In this case, Plaintiff has failed to identify a specific

action, at any stage of the alleged constitutional violation,

that constitutes a decision by Coats. Plaintiff has not

established that Coats ratified Godfrey’s conduct, directed

Godfrey’s actions, or was ever made aware of the repossession in

controversy. Accordingly, Plaintiff has failed to create the

plausible inference that Coats made a decision as a person with

final policymaking authority.

C. Omission and Failure to Train

Plaintiff further argues that “Coats failed to properly

hire, train, instruct, monitor, supervise, evaluate,

investigate, and discipline officers of the HCSO, including

Godfrey, with deliberate indifference to Ms. Atkinson’s

Constitutional rights.” (Compl. (Doc. 1) ¶ 190.) Specifically,

Plaintiff contends that HCSO failed to train on “self-help

repossessions” or “civil standby.” (Id. ¶¶ 86–87.) Defendants

contend that “[i]n light of the Fourth Circuit’s holding,”

Plaintiff has not alleged facts sufficient to meet the

deliberate indifference standard because “there were no

ascertainable standards which would have guided the HCSO on how

to train officers, or how to enact policies in the context of

repossessions. Sheriff Coats was simply not on notice of any

potential constitutional violation.” (Defs.’ Resp. to Text Order

1 (Doc. 55) at 9.)

The Fourth Circuit explained that in this case, the

“constitutional terrain” was “murky.” Atkinson, 100 F.4th at

509. In other words, “the law” did not “fairly warn[]” Godfrey

“that his conduct violated the Constitution.” Id. at 508. While

this court recognizes that the second prong of qualified

immunity and Monell liability are distinct standards, this court

is also mindful that both standards require a similar

examination of government officials’ interaction with

individuals’ constitutional rights. Under the second prong of

qualified immunity, courts must consider whether “existing

precedent ‘must have placed the statutory or constitutional

question beyond debate.’” Atkinson, 100 F.4th at 505. Under the

deliberate indifference standard for the third theory of

municipal liability, courts must analyze whether a municipality

failed “to prohibit or discourage readily foreseeable conduct in

light of known exigencies of police duty.” Spell v. McDaniel,

824 F.2d 1380, 1390 (4th Cir. 1987). Just as qualified immunity

requires courts to examine whether law enforcement had “fair

warning” that the “conduct was unconstitutional,” Atkinson, 100

F.4th at 506 (quoting Booker v. S.C. Dep't of Corr., 855 F.3d

533, 538 (4th Cir. 2017)), deliberate indifference requires

courts to determine “that a municipality either knew or should

have known about the deficiency, so it could remedy that

deficiency.” Est. of Jones, 961 F.3d at 672. While not

congruent, the factual analysis and legal application in both

require consideration of notice of a duty or obligation.

This court agrees with Defendants that the Fourth Circuit’s

order clarifies the failure to train analysis. The “core” of

Monell liability for omissions is “some level of notice.” Est.

of Jones, 961 F.3d at 672. That level of notice need not rise to

the level of a clear constitutional violation, but it does

require some form of “deficiency” such that HCSO would have

“notice of the need to better train its officers.” Id. As the

Fourth Circuit established, courts “are not consistent at all

about when an officer's conduct constitutes assistance in the

repossession as opposed to peacekeeping.” Atkinson, 100 F.4th at

508. Because “there is no consensus on where to draw that line,”

id., there is no “risk of likely constitutional violations” and

therefore no “deficiency.” Est. of Jones, 961 F.3d at 672.

Without such deficiency, Plaintiff cannot meet the deliberate

indifference standard.

Plaintiff’s claim that HCSO “has a history of failing to

train its officers” is not limited to the events in controversy.

(Compl. (Doc. 1) ¶ 110). Instead, Plaintiff provided a report

that HCSO “unlawfully continued evicting individuals” during an

eviction moratorium. (Id. ¶ 111.) Additionally, Plaintiff argues

that HCSO “has a history of entering private property and

forcing individuals to do things against their rights—i.e.,

unlawful seizures” and cites Livingston v. Kehagias, 803 F.

App’x 673 (4th Cir. 2020). (Compl. (Doc. 1) ¶ 109.)

This court finds that the subject matter of Plaintiff’s

referred material is too abstracted from the alleged injuries to

establish that HCSO was on notice of the exigent need for

training on vehicle repossession disputes. Each claim in

Livingston examined law enforcement’s use of force during a

seizure or arrest upon arriving at an individual’s home. 803 F.

App’x at 679, 686, 688. The eviction moratorium “ordered that

eviction and foreclosure hearings be postponed 30 days.” (Compl.

(Doc. 1) ¶ 111.) While both instances may support the need for

some form of further training on arrest procedure or landlord-

tenant law, neither “have put [HCSO] on earlier notice of the

need to better train its officers” on automobile repossession

disputes. Est. of Jones, 961 F.3d at 672. As the Fourth Circuit

identified, evictions are factually “very different” than

automobile repossessions, and not all seizures of property are

analogous. Atkinson, 100 F.4th at 507 (recognizing that “Fuentes

does not even involve the same alleged unlawful seizure that we

consider here”) (citing Fuentes v. Shevin, 407 U.S. 67, 90–92

(1972)). Therefore, there was no ”deliberate or conscious

choice” by HCSO to fail to train its officers, see id. (quoting

Broderick, 225 F.3d at 456), and this court finds that Plaintiff

has failed to state a claim under the third theory of Monell

liability.

D. Custom

Finally, Plaintiff argues that “[u]pon information and

belief, based upon the similar incidents described above and

CR’s communications with HCSO, the HCSO maintains a policy or

custom of intervening in and assisting in contested

repossessions despite obvious breaches of the peace.” (Compl.

(Doc. 1) ¶ 184.) Additionally, “[u]pon information and belief,

it is custom for HSCO [sic] to assist secured parties with the

self-help repossession of collateral.” (Id. ¶ 84.) Defendants

contend that “Plaintiff has not plausibly alleged that the

Harnett County Sheriff’s policies or customs caused any

constitutional violation,” nor has Plaintiff alleged that “HCSO

could have acted deliberately via its policies, training, or

practices in the chaotic repossession context.” (Defs.’ Resp. to

Text Order 1 (Doc. 55) at 12.)

The Fourth Circuit has recognized that “[i]t is well

settled that ‘isolated incidents’ of unconstitutional conduct by

subordinate employees are not sufficient to establish a custom

or practice for § 1983 purposes.” Lytle, 326 F.3d at 473

(quoting Carter, 164 F.3d at 220). Instead, “there must be

‘numerous particular instances’ of unconstitutional conduct in

order to establish a custom or practice.” Id. (quoting Kopf v.

Wing, 942 F.2d 265, 269 (4th Cir. 1991)). Moreover, municipal

liability under this fourth theory requires more than mere

knowledge or “aware[ness] of that custom.” Howard, 68 F.4th at

954. Rather, the municipality “must have knowledge of the

unconstitutional behavior, not simply” the municipality’s

general practices. Id.

This court finds that Plaintiff has failed to create the

plausible inference that a custom existed. First, the facts,

taken as true, do not suggest that a practice existed that was

“so ‘persistent and widespread’ as to constitute a ‘custom or

usage with the force of law.’” Lytle, 326 F.3d at 471 (quoting

Carter, 164 F.3d at 217). As the Fourth Circuit recently

explained in Misjuns, “a ‘custom cannot be established “by proof

alone of the single violation charged.’” 139 F.4th at 386

(quoting Greensboro Pro. Fire Fighters Ass'n, Loc. 3157 v. City

of Greensboro, 64 F.3d 962, 966 (4th Cir. 1995)). Just as in

Misjuns, where “[t]he only facts that [plaintiff] alleged . . .

regard[ed] his own termination,” id. at 381, Plaintiff’s custom

claim is limited to the repossession in controversy. Plaintiff

has failed to articulate any facts independent of her

interaction with CR that would suggest that HCSO intervened in

the disputed repossession as part of a custom or widespread

practice. In other words, Plaintiff “has alleged none other than

[her] own experience.” Id. Thus, because of the Fourth Circuit’s

recent opinion, this court finds that Plaintiff has failed to

establish “‘numerous particular instances’ of unconstitutional

conduct.” Id. (quoting Kopf, 942 F.2d at 269).

Second, had Plaintiff asserted “numerous particular

instances,” Kopf, 942 F.2d at 269, the custom claim would remain

insufficiently plead because Plaintiff cannot establish that

HCSO “had knowledge of the unconstitutional behavior.” Howard,

68 F.4th at 934. Under this fourth theory, Plaintiff must plead

that a custom or widespread practice existed. Then, the facts

must establish that the municipality was aware of that practice.

Finally, the municipality must be aware of the unconstitutional

behavior arising during that practice, not simply the general

practice. Knowledge of general practices such as “secrecy

regarding confidential informants” do not alone implicate Monell

liability. Id. While HCSO may have had a practice of responding

to a tow company’s calls during vehicle repossessions, Plaintiff

is unable plead facts supporting a plausible finding that Coats

had knowledge of any unconstitutional behavior, particularly in

light of the Fourth Circuit’s opinion which held that there was

no “fair warning that conduct like Godfrey’s was

unconstitutional.” Atkinson, F.4th at 508. Thus, this court

finds that Plaintiff has failed to plead facts sufficient to

infer the existence of a custom. Plaintiff has therefore failed

to state a municipal liability claim upon which relief may be

granted.

V. CONCLUSION

For the foregoing reasons,

IT IS THEREFORE ORDERED that this court’s prior order, (Doc.

45), dismissing Defendants’ Motion to Dismiss, (Doc. 18), is

VACATED.

IT IS FURTHER ORDERED that Defendants’ Motion to Dismiss the

complaint against Sheriff Wayne Coats, (Doc. 18), is GRANTED.

Because all claims as to Defendant Godfrey have also been

dismissed, (Text Order 07/26/2024), this action is hereby

DISMISSED.

A Judgment dismissing this action will be filed

contemporaneously herewith.

This the 23rd day of September, 2025.

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United States District Judde

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