# ATKINSON v. CREDIT ACCEPTANCE CORPORATION

> District Court, M.D. North Carolina · September 23, 2025

URL: https://www.frixlaw.com/law-library/cases/11143063

## Case

- **Court:** District Court, M.D. North Carolina
- **Decided:** September 23, 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/11143063

## How later opinions describe it (automated extraction)

- recognizing that “Fuentes does not even involve the same alleged unlawful seizure that we consider here”

## Opinion text

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.

\,
□□ un L. abe ~
United States District Judde

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11143063. Public record. Not legal advice.