Naef

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NORTH CAROLINA

SOUTHERN DIVISION

No. 7:22-CV-179-BO

CHRISTIAN NAEF )

Plaintiff,

V. ORDER

COUNTY OF NEW HANOVER, et al.,

Defendants.

This cause comes before the Court on defendants’ motion for summary judgment [DE 65].

Plaintiff responded [DE 75] and defendant replied [DE 76]. In this posture, the motion is ripe for

ruling. For the following reasons, the motion is granted.

BACKGROUND

Doctor LeShonda Wallace served as chair of the New Hanover County Consolidated

Human Services Board. [DE 67, 4 6]; [DE 73, § 6]. In her position as chair, she moderated and

presided over the Board’s public meetings and hearings. [DE 67, § 8]; [DE 73, § 8]. This case

arises from plaintiff Christian Naef’s attendance at the Board’s hearings concerning a COVID-19-

era mask mandate.

On August 17, 2021, the New Hanover County Public Health Director issued an order

temporarily mandating the “[w]earing of a face covering over the nose and mouth while in indoor

public spaces,” which would remain effective until the Board decided whether to enact a more

permanent rule. [DE 68-5]. On August 31, 2021, Wallace presided over a public hearing to receive

information and public comment on whether the Board should implement a local health rule

mandating face coverings while occupying indoor public spaces. [DE 67, § 19-20]; [DE 73, 4 19-

20]. Defendant Deputies Jeffrey Rohena and E.D. Long provided security for the hearing. [DE 67,

4 23]; [DE 73, { 23].

Plaintiff attended the meeting and wore a bright red bandana as a face covering. [DE □□□

27); [DE 73, § 27]. The bandana would sometimes fall below plaintiff's nose, or sometimes

plaintiff would remove it to take a breath. [DE 67, J 30-31]; [DE 73, § 30-31]. After plaintiff's

bandana had remained below his mouth for four consecutive minutes, Wallace referred to plaintiff,

asking deputies to “remove the man in the third row with the red bandana who will not wear his

mask.” [DE 67, § 43-44]; [DE 73, § 43-44]. Plaintiff protested, explaining that he had signed up

to speak. [DE 67, J 45, 47]; [DE 73, 99 45, 47]. Wallace responded that he was not a speaker any

longer. [DE 68-1, § 64]. The deputies present had to grab and pull plaintiff to escort him out. [DE

67, 54-57]; [DE 73, J§] 54-57]. At the August 31 meeting, the Board passed the county-wide

mask mandate, which was in effect at the meeting plaintiff attended on November 12, 2021. [DE

67, § 72, 77); [DE 73, 4 72, 77].

The Board held its November 12, 2021 meeting to consider whether to continue or suspend

the mask mandate imposed at the August 31 meeting. [DE 67, § 78]; [DE 73, { 78]. As Wallace

moved to the public comment period of the meeting and invited the first speaker to the podium,

she reminded the attendees that each speaker was limited to three minutes. [DE 67, 89-90]; [DE

73, 89-90]. When plaintiff was invited to the podium, he began his remarks by saying that he

had a message which would take more than three minutes and that he would not be limited by

time. [DE 67, § 94]; [DE 73, 94]. Indeed, plaintiff continued to speak at the expiration of his

three minutes. [DE 67, J 98]; [DE 73, § 98]. Wallace informed him that his time was up, but he

continued to speak, so Wallace asked the deputies to remove him. [DE 67, 4 99-100]; [DE 73,

99-100]. The deputies had to lift plaintiff off the ground to remove him from the hearing. [DE 67,

q 109]; [DE 73, □ 109]. Deputy Rohena charged plaintiff with misdemeanor resist/delay/obstruct

and second-degree trespassing. [DE 67, 9 112]; [DE 73, § 112]. The deputies handcuffed plaintiff

and transported him to the New Hanover County Detention Facility to appear before a magistrate.

[DE 67, 112, 113, 120]; [DE 73, §§ 112, 113, 120]. The magistrate found probable cause for the

charges. Jd. The Board repealed the mask mandate and adjourned the meeting. [DE 67, J 131-

133]; [DE 73, 4 131-133].

Plaintiff filed this action on October 21, 2022. On August 31, 2023, the Court granted in

part and denied in part defendants’ motion to dismiss the complaint. Defendants moved for

summary judgment on all claims still pending after the Court’s order of August 31, 2023:

(1) § 1983 First Amendment retaliation asserted against defendants Wallace and New Hanover

County for the August 31, 2021 and November 12, 2021 meetings; (2) § 1983 Fourth Amendment

excessive force claims against Deputies Long, Sarvis, and Rohena; and (3) state law battery claims

against Deputies Long, Sarvis, and Rohena.

SUMMARY JUDGMENT STANDARD

A motion for summary judgment may not be granted unless there are no genuine issues of

material fact for trial and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P.

56(a). The moving party bears the initial burden of demonstrating the absence of a genuine issue

of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If that burden has been met,

the non-moving party must then come forward and establish the specific material facts in dispute

to survive summary judgment. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,

588 (1986). In determining whether a genuine issue of material fact exists for trial, a trial court

views the evidence and the inferences in the light most favorable to the nonmoving party. Scoft v.

Harris, 550 U.S. 372, 378 (2007). However, “[t]he mere existence of a scint □□□ of evidence” in

support of the nonmoving party’s position is not sufficient to defeat a motion for summary

judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). “A dispute is genuine if a

reasonable jury could return a verdict for the nonmoving party. A fact is material if it might affect

the outcome of the suit under the governing law.” Libertarian Party of Va. v. Judd, 718 F.3d 308,

313 (4th Cir. 2013) (internal quotation marks and citations omitted). Speculative or conclusory

allegations will not suffice. Thompson v. Potomac Elec. Power Co., 312 F.3d 645, 649 (4th Cir.

2002).

DISCUSSION

I. § 1983 First Amendment Retaliation

To establish a First Amendment § 1983 retaliation claim, a plaintiff must demonstrate that

“(1) he engaged in protected First Amendment activity, (2) the defendants took some action that

adversely affected his First Amendment rights, and (3) there was a causal relationship between his

protected activity and the defendants’ conduct.” Martin v. Duffy, 858 F.3d 239, 249 (4th Cir. 2017)

(cleaned up). To establish the causation element, “it is not enough that the protected expression

played a role or was a motivating factor in the retaliation; claimant must show that ‘but for’ the

protected expression the [state actor] would not have taken the alleged retaliatory action.” Huang

v. Bd. of Governors of Univ. of N. Carolina, 902 F.2d 1134, 1140 (4th Cir. 1990). So, to create a

genuine issue of material fact, plaintiff must point to evidence indicating that if he had not opposed

the mask mandate, Wallace would not have removed him from the hearings.

a. August 31, 202] Hearing

Given that plaintiff never actually took the podium at the August 31, 2021 hearing, it is

dubious that Wallace could have retaliated against plaintiff's expression in opposition to the mask

mandate. Even assuming arguendo that plaintiff engaged in a First Amendment protected activity,

he points to no evidence that Wallace removed him because of the protected activity. Rather, it

appears Wallace removed him because of his noncompliance with the mask mandate.

Plaintiff contends that other attendees violated the mask mandate when their masks slipped

below their noses or mouths, but they were not removed. [DE 74]. He alleges that the mask

mandate was enforced against attendees unequally and as a pretext to remove those opposing the

mask mandate. Plaintiff has not, however, identified any attendee in favor of the mask mandate

that Wallace treated more favorably. Defendants, on the other hand, purport that Wallace removed

him because his red, eye-catching bandana fell below his mouth and remained there for four

minutes. As Wallace explains in her affidavit, any unequal enforcement of the mandate arose from

what she could see, rather than what opinions the attendees apparently intended to express. [DE

68-1, 79-81]. Without any evidence to the contrary, other than plaintiff's speculation, there is

no genuine fact dispute, and this is not a triable issue for a jury.

b. Nevember 12, 202! fearing

While Wallace removed plaintiff from the August hearing for violating the mask mandate,

she removed him from the November hearing for exceeding his time and refusing to surrender the

podium. Plaintiff contends that this was retaliation for speaking in opposition to the mask mandate.

As with the August hearing, however, he identifies no attendee in favor of the mask mandate who

received more favorable treatment. Wallace allowed plaintiff to speak for three minutes, which

was the same amount of time allotted for all the speakers, including those in favor of the mask

mandate. The deputies removed plaintiff only after he refused to leave the podium. Plaintiff's

speculation that his removal was nevertheless retaliation for expressing his viewpoint is

insufficient to create a genuine issue of material fact.

II. § 1981 Fourth Amendment Excessive Force

The defendants have raised the defense of qualified immunity as to the § 1983 claim against

them. Because qualified immunity provides immunity from suit, and therefore a trial, the Court

considers this issue first. Qualified immunity shields government officials from liability for

statutory or constitutional violations so long as they can reasonably believe that their conduct does

not violate clearly established law. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). A court

employs a two-step procedure for determining whether qualified immunity applies that “asks first

whether a constitutional violation occurred and second whether the right violated was clearly

established.” Melgar v. Greene, 593 F.3d 348, 353 (4th Cir. 2010). Qualified immunity protects

“all but the plainly incompetent or those who knowingly violate the law.” Malley v. Briggs, 475

USS. 335, 341 (1986).

“The judges of the district courts and the courts of appeals should be permitted to exercise

their sound discretion in deciding which of the two prongs of the qualified immunity analysis

should be addressed first in light of the circumstances in the particular case at hand.” Pearson v.

Callahan, 555 U.S. 223, 236 (2009). When a court’s decision on one step is dispositive, it need

not reach the other. See Raub v. Campbell, 785 F.3d 876, 881 (4th Cir. 2015) (“we need not reach

both prongs of the analysis,” citing Pearson, 555 U.S. 223).

To determine whether the defendants acted with qualified immunity, the first question is

whether they violated plaintiff's Fourth Amendment rights. Law enforcement officers violate an

individual’s Fourth Amendment rights when they effect a seizure using excessive force. Schultz v.

Braga, 455 F.3d 470, 476 (4th Cir. 2006). “/A/l/ claims that law enforcement officers have used

excessive force—deadly or not—in the course of an arrest, investigatory stop, or other ‘seizure’ of

a free citizen should be analyzed under the Fourth Amendment and its ‘reasonableness’ standard.”

Graham v. Connor, 490 U.S. 386, 395 (1989) (emphasis in original). This standard is objective,

and thus without regard to the officer’s subjective intention or motivation. Schultz, 455 F.3d at

477.

A court does consider, however, the facts and circumstances confronting the officer, and it

must focus its attention on the moment the force was employed. Henry v. Purnell, 652 F.3d 524,

531 (4th Cir. 2011) (citations omitted). Specific factors to be considered are the severity of the

crime at issue, whether the suspect poses an immediate threat, and whether the suspect is actively

resisting or attempting to flee. Graham, 490 U.S. at 396. Additional considerations include “the

extent of the plaintiff's injury” and “any effort made by the officer to temper or to limit the amount

of force” used. Kingsley v. Hendrickson, 576 U.S. 389, 397 (2015). Whether the officer’s conduct

was reasonable is a question of law to be decided after determining “the relevant set of facts and

draw[ing] all inferences in favor of the nonmoving party to the extent supportable by the record.”

Scott, 550 U.S. at 381 n.8 (emphasis omitted).

The Fourth Circuit recently decided Somers v. Devine, 132 F.4th 689 (4th Cir. 2025), an

instructive COVID-era excessive force case. Plaintiff Somers refused to wear a mask and was

denied entry to a public school board meeting. /d. at 692-93. The defendant police officer Devine

asked the individuals in the lobby outside the meeting room to quiet down, as the noise from the

lobby disturbed the meeting. Somers responded, “no,” and refused to leave voluntarily. Jd. at 693.

Officer Devine forcibly removed her, brought her to the ground, “rolled her onto her chest, pushed

both hands behind her back, and applied pressure to her back for approximately one minute to keep

her still” as he handcuffed her. Jd. Somers indicated he was hurting her has he did so. The

Fourth Circuit affirmed the trial court in finding Devine’s use of force was minimal and he was

entitled to qualified immunity. Jd.

While plaintiff's actions in the instant case are not particularly severe and he posed no

immediate physical threat (although he may have posed a threat to the organization and decorum

of the Board’s proceedings), his refusal to leave voluntarily was the kind of resistance justifying a

use of force. See Somers, 132 F.4th at 699; Graham, 490 U.S. 386. Plaintiff describes the injuries

he sustained during his removal as “minor.” [DE 74, § 6]; see Kingsley, 576 U.S. at 397. The

deputies’ use of force is analogous to the force used by the defendant officer in Somers. As that

court said,

In [Somers’] case, the use of force was minimal and was made necessary by

Somers’ resistance. With regard to the lobby incident, Somers refused to stand up,

telling Officer Devine that he would “have to lift [her] out of this chair.” Officer

Devine then did so. Somers next refused to roll herself over onto her chest when

instructed, so the officer again did so. He applied enough pressure on Somers’ back

to keep her still while handcuffing her, and he loosened up in under a

minute. ... Viewed in their totality, these events are not an example of excessive

force. They are an example of an appropriate, proportional response to an individual

resisting lawful arrest and lawful orders to remain masked in accordance with

Maryland law. And even when crimes are not “severe,” we permit officers to apply

the degree of force “necessary to overcome that resistance.”

Somers, 132 F.4th at 699 (internal citations omitted). The force defendants used to remove plaintiff

from the Board meetings was not excessive.

Although plaintiff “contends that Deputy Walker struck [him] outside the camera view

while removing him from the meeting” [DE 73, | 67], Deputy Walker is not a defendant in this

case. Liability under § 1983 is “personal, based upon each defendant's own constitutional

violations.” Trulock v. Freeh, 275 F.3d 391, 402 (4th Cir. 2001). “A claim under § 1983 requires

factual details about each defendant’s personal involvement in the violation of the plaintiff's

rights.” Helton v. Owens, 2025 U.S. Dist. LEXIS 174627 at *9 (W.D. Va. Sep. 8, 2025) (citing

Wilcox v. Brown, 877 F.3d 161, 170 (4th Cir. 2017)).

Because the defendants’ use of force did not violate the Fourth Amendment, they acted

with qualified immunity. In addition to their qualified immunity defense, defendants are entitled

to judgment as a matter of law because no constitutional violation occurred.

III. State Law Battery Claim

Public official immunity precludes certain suits against public officials in their individual

capacities. “Police officers engaged in performing their duties are public officials for the purposes

of public official immunity.” Lopp v. Anderson, 251 N.C. App. 161, 168 (2016). “As long as a

public officer lawfully exercises the judgment and discretion with which he is invested by virtue

of his office, keeps within the scope of his official authority, and acts without malice or corruption,

he is protected from liability.” Wilcox v. City of Asheville, 222 N.C. App. 285, 288, 730 S.E.2d

226, 230 (2012) (citing Smith v. State, 289 N.C. 303, 331 (1976)). “A malicious act is one which

is: ‘(1) done wantonly, (2) contrary to the actor’s duty, and (3) intended to be injurious to another.”

Fullwood v. Barnes, 250 N.C. App. 31, 38 (2016).

“Absent evidence to the contrary, courts presume public officials ‘discharge their duties in

good faith and exercise their powers in accord with the spirit of the law.”’ /d. (cleaned up) (citing

Strickland v. Hedrick, 194 N.C. App. 1, 10 (2008)). ‘Any evidence presented to rebut this

presumption must be sufficient by virtue of its reasonableness, not by mere supposition. It must be

factual, not hypothetical; supported by fact, not by surmise.” Mitchell v. Pruden, 251 N.C. App.

554, 560 (2017) (quoting Fullwood, 250 N.C. App. at 38).

Plaintiff did not respond to defendants’ assertion of public official immunity in their

memorandum in support of summary judgment. Given there is no evidence the deputies acted

outside the scope of their authority, or with malice or corruption, they are entitled to public official

immunity.

CONCLUSION

For the foregoing reasons, defendants’ motion for summary judgment [DE 65] is

GRANTED,

SO ORDERED, this g day of January 2026.

Lé W. ae

UNITED STATES DISTRICT JUDGE

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