FUJIWARA

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IN THE UNITED STATES DISTRICT COURT a

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA eI wEN = 2026

(ions US. □□□□□□□□ Court

KATHY FUJIWARA, as Administrator _ ) a mez

of the ESTATE of WARREN KENT ) □ □□ □

DAVIS, deceased )

)

Plaintiff, )

| )

v. ) 1:24-CV-00957

)

TERRY S. JOHNSON, Individually, )

and in his Official Capacity as )

Alamance County Sheriff, UNKNOWN _ )

JOHN DOE ALAMANCE COUNTY )

SHERIFF’S DEPUTIES 1-10, in their )

individual capacities, and UNKNOWN _ )

SURETY, as Surety, )

)

)

Defendants. )

MEMORANDUM OPINION AND ORDER

Lindsey A. Freeman, District Judge.

This litigation arises from the tragic shooting death of Warren Kent Davis

during an encounter with Alamance County sheriffs deputies. Defendant Terry S.

Johnson (“Johnson”), Alamance County Sheriff, filed a motion for judgment on the

pleadings pursuant to Federal Rule of Civil Procedure 12(c). See Dkt. 15. Johnson

moves to dismiss the complaint (“Complaint”) filed by the Estate of Warren Kent

Davis (the “Estate”) through its administrator and personal representative, Kathy

Fujiwara (“Fujiwara”), in its entirety and against all defendants. See Dkt. 1.

For the reasons outlined in more detail below, Johnson’s motion is GRANTED

in part and DENIED in part. It is granted in part because the Complaint does not

adequately allege a basis for holding Johnson liable pursuant to § 1983 in either his

individual or official capacities. As a result, there is no predicate wrongful act

pleaded against Johnson, so the Estate’s state law wrongful death claim, at least as

to him, must also fail. The Estate also erroneously asserts state-law intentional

infliction of emotional distress and negligent infliction of emotional distress claims

on behalf of Fujiwara, who is not a party to this action.

The motion is denied in part, however, because the Estate does adequately

allege—at this stage in the litigation—a deprivation of Warren Kent Davis's (“Davis”)

rights under the Fourth Amendment by the ten unidentified sheriffs deputies (the

“John Doe Deputies”). Also, at this juncture, when the deputies have not even

appeared, it is too early to adjudicate whether the wrongful death claims are time-

barred against them.

FACTS AND PROCEDURAL HISTORY

The Estate, through its administrator and personal representative, Fujiwara,

brings federal and state law claims arising from the shooting death of her son, Davis.

The Estate sues Alamance County Sheriff Johnson, the ten John Doe Deputies, and

an unknown surety providing insurance coverage to the Alamance County Sheriffs

Office (the “Unknown Surety,” and, collectively with the other defendants,

“Defendants’). See generally Dkt. 1. The Estate asserts that: (1) Johnson and the

John Doe Deputies deprived Davis of his rights under the Constitution by employing

excessive force (Count I); (2) Johnson and the John Doe Deputies should be held liable

for Davis’s injuries under the North Carolina wrongful death statute (Count II); and

(3) Johnson intentionally and/or negligently caused Fujiwara, Davis's mother,

extreme emotional distress (Count III and IV, respectively). See Dkt. 1 4] 55-86.

On May 8, 2028, Davis was shot and killed by Alamance County sheriffs

deputies following an encounter with police. See Dkt. 1 {J 19, 24, 48. Davis suffered

from mental health issues, experienced substance abuse problems, and had a

documented history of problems with his girlfriend. See id. 15-17. While the pair

were still living together, police were called to their residence several months earlier

following what appeared to be a domestic dispute that occurred while Davis and his

girlfriend were drinking. See id. 17. After that incident, Davis’s girlfriend took out

a domestic violence protective order (““DVPO”) against Davis which, among other

things, prohibited Davis from being physically present at the home. See id. {J 18,

20. The Complaint alleges Davis and his girlfriend nonetheless continued to stay in

contact while Davis sought treatment for substance abuse. See id. [J 21-23.

On May 8, 2023, the date of the encounter with the police, Davis’s girlfriend

picked up Davis and brought him to their former residence in violation of the DVPO.

See id. J 19-20. Sometime thereafter, police were called to remove Davis from the

home. Id. {| 24. Police appear to have spoken to Davis over the phone before

responding to the scene. See id. {| 26.

The Complaint alleges tensions grew after Sheriff Johnson arrived at the scene

with approximately ten John Doe Deputies. See id. 28-30. Although the

Complaint provides no reason why, Davis “was shot in the arm by law-enforcement”

at some point after their arrival. See id. § 30. After Davis was injured, Johnson

“communicat[ed] with” Davis and “tried to persuade [him] to turn himself in to get

arrested.” See id. [{ 31-33. Johnson never pulled his service weapon while he was

talking with Davis. See id. §] 33. According to the Complaint, while Johnson spoke

with Davis, all ten John Doe Deputies surrounded Davis, who then “ducked under a

truck” parked in front of his girlfriend’s home and “laid prone on his stomach.” See

id. 35-36. While Johnson continued to try and coax Davis into submitting to the

authorities, one of the John Doe Deputies allegedly threw a non-lethal flashbang

under the truck. Jd. 37-38. “[R]eact[ing] to the sound of the flash-bang,” the John

Doe Deputies allegedly opened fire on Davis, striking Davis repeatedly with bullets

and killing him. Id. {J 39-41, 43.

Although the Complaint acknowledges that the Alamance County Sheriffs

Office issued a press release to the contrary (see id. 4] 46-49), it alleges that Davis

was neither aggressive nor armed during the encounter with police (see td. 4] 50-51).

It further alleges that all the John Doe Deputies knew Davis was unarmed at the

time they employed lethal force. See id. | 42. The Complaint contends that body

camera footage, which has not been proffered for review, discredits the Sheriff's

Office’s press release, which stated Davis had a knife and lunged at officers twice

before he was fatally shot. See id. {J 47-49, 52.

The Estate filed its Complaint on behalf of Davis on November 19, 2024. See

generally Dkt. 1. It brought claims against the Defendants for excessive force under

the Federal Constitution, wrongful death under North Carolina law, and intentional

and negligent infliction of emotional distress under North Carolina law. See id. □□

55-86. The only identified Defendant, Johnson, filed an Answer on March 5, 2025.

See Dkt. 9. Thereafter, and before the parties had begun discovery, Johnson moved

this Court for judgment on the pleadings and filed a supporting memorandum of law.

See Dkts. 15-16. The motion is fully briefed (see Dkts. 16, 29-30), and, for the reasons

explained below, the Court denies the motion in part and grants the motion in part.

ANALYSIS

Johnson moves for judgment on the pleadings, contending that the Complaint

fails to allege a plausible claim for relief against any of the Defendants for all the

federal and state law claims. See generally Dkt. 15. “A motion for judgment on the

pleadings under Rule 12(c) is assessed under the same standards as a motion to

dismiss under Rule 12(b)(6).” Occupy Columbia v. Haley, 738 F.3d 107, 115 (4th Cir.

2013). Thus, for the Estate’s claims to survive, the complaint need only to allege

sufficient facts to “state a claim to relief that is plausible on its face.” Ashcroft v.

Igbal, 556 U.S. 662, 678 (2009). This Court must accept as true all well-pleaded

allegations (Vitol, S.A. v. Primerose Shipping Co., 708 F.3d 527, 539 (4th Cir. 2013)),

and view the allegations “in the light most favorable to” the Estate (Hpcon

Homestead, LLC v. Town of Chapel Hill, 62 F.4th 882, 885 (4th Cir. 2023) (quoting

United States ex rel. Oberg v. Pa. Higher Educ. Assistance Agency, 745 F.3d 131, 136

(4th Cir. 2014))).

As to the Estate’s federal claims, Johnson specifically contends that the Estate

has failed to raise a plausible § 1983 claim for three reasons: (1) the John Doe

Deputies—and thus, Johnson by extension—did not violate Davis’s constitutional

rights; (2) Johnson is not liable in his personal capacity; and (3) Johnson is not liable

in his official capacity. See Dkt. 16 at 8-16. At this stage in the litigation, although

the Estate has pleaded a plausible § 1983 claim against the John Doe Deputies, the

Estate has not adequately pleaded that Johnson should be liable for their actions,

even though he was on scene at the time of the incident. The federal law claims

against Johnson, therefore, must be dismissed.

For the Estate’s state law claims, Johnson asserts that: (1) Johnson cannot be

liable for wrongful death without a plausible predicate act and, moreover, the Estate

did not timely file its wrongful death claim against the John Doe Deputies; and (2)

the Estate failed to allege that Johnson intentionally or negligently inflicted

emotional distress on Davis. While the Court agrees that Johnson cannot be liable

for wrongful death without a viable predicate act, this is not the right procedural

posture to determine whether the claim is time-barred against the yet-to-be-

identified John Doe Deputies. The Court agrees that the Estate has improperly

pleaded intentional or negligent infliction of emotional distress claims on behalf of

Fujiwara, Davis’s mother, who is not a party to this action.

I. While the Complaint Fails to Allege a Plausible § 1983 Claim Against

Johnson, the Allegations Against the John Doe Deputies are Adequate at

this Stage.

Because the Complaint does not allege that Johnson shot Davis, the Estate’s

§ 1983 claims against Johnson are contingent on a finding that the John Doe

Deputies deployed excessive force and that Johnson is responsible for their actions.

To adequately plead a § 1983 claim, a plaintiff must plausibly allege: (1) the

defendants acted under color of state law; (2) the defendants’ actions deprived the

plaintiff of their constitutional rights; and (8) these actions caused injury to the

plaintiff. See Kentucky v. Graham, 473 U.S. 159, 166 (1985). In this case, the

viability of the Estate’s federal § 1988 claims depend upon whether the John Doe

Deputies unreasonably deployed lethal force in violation of Davis’s constitutional

rights. Considering the allegations in the light most favorable to the Estate, the

Estate has plausibly raised a claim that the John Doe Deputies violated Davis’s

Fourth Amendment rights. However, the Estate has failed to plausibly allege that

Johnson, despite being on scene, can be liable for the tragic shooting of Davis in any

respect.

A. The § 1983 Claims Against the John Doe Deputies, Taken in the

Light Most Favorable to the Estate, are Plausible.

At this stage in the litigation, the Estate adequately alleges that the John Doe

Deputies employed excessive force against Davis in violation of his constitutional

rights. The Fourth Amendment’s prohibition on unreasonable seizures also “bars

police officers from using excessive force to seize a free citizen.” Jones v. Buchanan,

325 F.3d 520, 527 (4th Cir. 2008).1 An officer’s use of force is excessive if it is

1 Although the Estate purports to bring claims on behalf of Davis for excessive force

under the Fifth Amendment’s Due Process Clause and the Equal Protection Clause

of the Fourteenth Amendment, “[a] claim that a law enforcement officer used

excessive force during a stop or arrest is ‘analyzed under the Fourth Amendment.”

Barnes v. Felix, 605 U.S. 78, 79 (2025) (quoting Graham v. Connor, 490 U.S. 386, 395

(1989)). Further, the Fourteenth Amendment’s Due Process Clause, not the Fifth

Amendment’s Due Process Clause, applies to state officers like the Defendants. Cf.

Starbuck v. Williamsburg James City Cnty. Sch. Bd., 28 F.4th 529, 537 (4th Cir. 2022)

(“The Fifth Amendment’s Due Process Clause does not apply to municipalities, but

only to federal actors.”). Count I is dismissed to the extent that it asserts violations

of Davis’s rights under the Fifth and Fourteenth Amendments.

objectively unreasonable. Jd. “The subjective intent or motivation of an officer is

irrelevant[.|” Yates v. Terry, 817 F.3d 877, 884 (4th Cir. 2017). As acknowledged in

Johnson's motion, determining whether an officer’s use of force is reasonable is a

“fact-dependent question” that “must be judged from the perspective of a reasonable

officer on the scene.” See Dkt. 16 at 9 (quoting Graham v. Connor, 490 U.S. 386, 396

(1989)); see also Jones, 325 F.3d at 527 (“[T]he question is whether a reasonable officer

in the same circumstances would have concluded that a threat existed justifying the

particular use of force.” (quoting Elliot v. Leavitt, 99 F.3d 640, 642 (4th Cir. 1996)).

A court must give “careful attention to the facts and circumstances of each particular

case” (see Graham, 490 U.S. at 398), including an assessment into “whether the

totality of the circumstances justified” the force employed (see Tennessee v. Garner,

471 U.S. 1, 8-9 (1985)).

To determine the reasonableness of the John Doe Deputies’ actions in this case,

the Court assesses the officers’ use of lethal force under the factors set forth in

Graham v. Connor, namely: (1) “the severity of the crime at issue,” (2) “whether the

suspect poses an immediate threat to the safety of officers or others,” and (8) “whether

[the suspect] is actively resisting arrest or attempting to evade arrest by flight.” See

490 U.S. at 396.2 The extent of the plaintiffs injuries is also relevant. See Nazario

2 The Estate’s argument that Graham should not apply at the motion to dismiss stage

(see Dkt 29 at 5-6) is meritless. The Fourth Circuit routinely assesses the Graham

factors when resolving a motion to dismiss. See, e.g., Brockington v. Boykins, 637

F.3d 503, 506-07 (4th Cir. 2011); Doriety for Est. of Crenshaw v. Sletten, 109 F.4th

670, 674-75 (4th Cir. 2024).

v. Gutierrez, 103 F.4th 218, 234 (4th Cir. 2024) (“[I]n the Fourth Circuit, we consider

a fourth factor—the extent of the plaintiffs injuries.” (internal quotations omitted)).

In this case and at this stage in the litigation, the second factor—whether

Davis could reasonably have been considered a threat—controls the analysis.

Although the Estate dismisses the severity of the crime as a “mere violation of a

domestic violence order” (see Dkt. 16 at 6), little is known about the situation the

officers may have found themselves in that night. According to the Complaint, Davis

was actively resisting arrest when lethal force was deployed because he was lying

underneath a car to evade turning himself □□ to authorities. See Dkt. 1 J 386, 38-39.3

And no one contests the extent of Davis's injuries, as the force employed, whether

excessive or not, resulted in the tragic loss of Davis's life. See id. {| 48.

At this stage of the proceedings, however, and considering the facts in the light

most favorable to the Estate, the Complaint plausibly alleges that Davis did not pose

a threat to Defendants when the John Doe Deputies employed lethal force. Cf.

Brockington v. Boykins, 687 F.3d 508, 507 (4th Cir. 2011) (plaintiff stated claim for

excessive force when he was repeatedly shot when he no longer posed threat to

defendant officer). According to allegations in the Complaint, which this Court must

accept as true at this juncture, Johnson spoke with the injured Davis—who was

3 Although Johnson suggests “the Estate makes no allegations as to whether Davis

was resisting arrest,” Dkt. 16 at 10-11, the Complaint states Johnson tried to

persuade Davis to turn himself in and that, at some point, Davis moved away from

Johnson and “ducked under a truck” while Johnson continued to coax him into

surrendering. See Dkt. 1 32, 36-37. Given these allegations, the reasonable

inference at this stage is that Davis was actively resisting arrest. See Iqbal, 556 U.S.

at 679 (court must accept all well-pleaded allegations as true).

previously shot by law enforcement during the encounter—and continued to try and

persuade Davis to turn himself over for arrest. See Dkt. 1 J 30, 31-32, 37. Johnson

never pulled his service weapon during this conversation. Id. { 33. Davis then moved

away from Johnson, ducked under a truck and lay prone on his stomach. Id. { 38.

While it is unclear whether Davis had a knife that night,4 the Complaint alleges he

was unarmed (see Dkt. 1 9] 50-51), and he likely would not have been able to threaten

the officers while lying under the truck and wounded, even if he had a knife.

Regardless, even if Davis was armed at some point before he was fatally shot, “force

justified at the beginning of an encounter is not justified even seconds later if the

justification for the initial force has been eliminated.” Waterman v. Batton, 393 F.3d

471, 481 (4th Cir. 2005). Thus, drawing all inferences in favor of the Estate, as the

Court must at this stage, it is plausible Davis did not pose a reasonable threat to the

officers when he was shot. See Brockington, 637 F.3d at 507.

4 Although the Complaint acknowledges that the Alamance County Sheriff's Office

issued a press release stating that Davis had twice lunged at the deputies with a knife

during the encounter (see Dkt. 1 |] 47-49), the Complaint alleges “[u]pon information

and belief’ that body-camera footage from the John Doe Deputies will demonstrate

that Davis neither lunged at any of the Deputies nor armed himself with a knife at

any point during his interaction with police (see Dkt. 1 51-54). The Estate may

plead facts based on information and belief, where, as here, they are not “wholly

conclusory” (see Kashdan v. Geo. Mason Univ., 70 F.4th 694, 701 (4th Cir. 2023))

because the underlying “facts are peculiarly within the possession and control of the

defendant” and the allegations “make[] the inference of culpability plausible” (see

Arista Records, LLC v. Doe 8, 604 F.3d 110, 120 (2d Cir. 2010)). It is at least plausible

that Davis did not pose a threat to the officers when he was first shot, especially since

Johnson continued to communicate with Davis to get him to surrender to police after

Davis was injured by a gunshot. See Dkt. 1 31-32, 37.

10

This analysis is admittedly complicated by the allegation that the John Doe

Deputies fatally shot Davis after they mistook for gunshots the non-lethal flashbang

tossed at Davis. See, e.g., Dkt. 1 4] 58 (describing the John Doe Deputies shooting

Davis as an “overreaction” to the flashbang). According to the Complaint, a John Doe

Deputy deployed the flashbang while Davis was lying on his stomach underneath the

truck. Id. 4 38. It further asserts that “immediately after the deployment of the

flash-bang round, several, if not all of the deputies, opened fire on [Davis].” Id. {| 39.

The analysis thus turns on whether the John Doe Deputies’ reaction to the tossed

flashbang was reasonable.

At this juncture, accepting the facts as they have been alleged in the

Complaint, it is plausible that the officers’ reaction and deployment of lethal force

was unreasonable. Importantly, “a mistaken understanding of the facts that is

reasonable in the circumstances can render a seizure based on that understanding

reasonable under the Fourth Amendment.” Milstead v. Kibler, 243 F.3d 157, 165 (4th

Cir. 2001). The mistake-of-fact doctrine is why, for instance, it may be reasonable for

an officer to employ lethal force on a suspect when that officer mistakenly believes

the suspect is reaching for a lethal weapon. See id.; Knibbs v. Momphard, 30 F.4th

200, 225 (4th Cir. 2022) (collecting cases). Indeed, the Fourth Circuit has observed

that lethal force may be reasonable if “the objective basis for the threat was real, even

if the gun was not.” Franklin v. City of Charlotte, 64 F.4th 519, 581 (4th Cir. 2023)

(internal quotations omitted and citation modified). But the entire analysis hinges

on whether the “mistake [of fact] was reasonable.” Id. at 532 (emphasis in original).

11

At this stage of the litigation, the Complaint alleges that the John Doe

Deputies made an unreasonable mistake of fact. The Complaint alleges that the

Deputies “knew [Davis] did not have a gun on his person.” See Dkt. 1 4 42. That

allegation is plausibly supported by allegations that Johnson tried to convince Davis

to cooperate with police without employing (or threatening) lethal force while the

John Doe Deputies surrounded Davis and watched. See id. 9 32-33, 35, 37.

“[V]iewing [the Complaint] in the light most favorable” to the Estate and “accepting

as true [its] well-pled facts,” these allegations are enough to survive a motion for

judgment on the pleadings. See Brockington, 637 F.3d at 505, 507; see also Tan Lam

v. City of Los Banos, 976 F.3d 986, 1002 (9th Cir. 2020) (collecting cases)

B. The Estate Fails to Plead that Johnson in His Individual Capacity

Deprived Davis of His Fourth Amendment Rights.

The Complaint fails to plausibly allege that Johnson personally deprived Davis

of his rights under the Fourth Amendment. “To establish personal liability under

§ 1983 ... the plaintiff must affirmatively show that the official charged acted

personally in the deprivation of plaintiffs rights.” Williamson v. Stirling, 912 F.3d

5 In one sentence in his motion, Johnson asserts he (and not the John Doe Deputies)

should be entitled to qualified immunity even if the Estate adequately pleaded

excessive force. See Dkt. 16 at 14. That is not sufficient to permit any of the

Defendants to raise the defense at this stage. Cf. Ridpath v. Bd. of Governors

Marshall Univ., 447 F.3d 292, 305 (4th Cir. 2006) (“qualified immunity is an

affirmative defense” and “the burden of pleading it rests with the defendant” (internal

quotations omitted)); see also Hammock v. Watts, 146 F.4th 349, 364 (4th Cir. 2025)

(state officials bear the burden of establishing their entitlement to qualified

immunity); Alvarado v. Litscher, 267 F.3d 648, 651-52 (7th Cir. 2001) (plaintiff does

not need to plead facts necessary to overcome anticipated qualified immunity

defense). The Court thus declines to rule on qualified immunity at this time.

12

154, 171 (4th Cir. 2017). The Complaint unambiguously alleges that Johnson never

drew his service weapon. See Dkt. 1 { 33 (“Johnson never pulled his service weapon

while having [a] conversation with [Davis].”). Nor does it allege that Johnson was

one of the officers who shot at Davis while he was under the truck. See id. § 41.

There is thus no basis for the Court to infer that Johnson directly caused a

deprivation of Davis’s Fourth Amendment rights.

The Estate instead alleges that Johnson as the supervisor present at the scene

should be held liable for the conduct of the John Doe Deputies. The Estate is correct

that while an official’s “own individual actions” must “violate[] the Constitution” to

establish liability under § 1988 (see Iqbal, 556 U.S. at 676), those actions “need not

be hands-on” (see Riddick v. Barber, 109 F.4th 639, 649 (4th Cir. 2024)). Indeed,

while “a law officer may [generally] incur § 1983 liability only through affirmative

misconduct,” the Fourth Circuit recognizes two instances where an officer's failure to

act can create liability: supervisory liability and bystander liability. See Randall v.

Prince George’s County, 302 F.3d 188, 202 (4th Cir. 2002); see also id. at 203-07

(applying both theories of liability). The Court addresses each basis in turn, rejecting

both.

The Estate has failed to plead a § 1983 claim under the Fourth Circuit’s three-

part test for supervisory liability outlined in Shaw v. Stroud, 13 F.3d 791 (4th Cir.

1994). Under that test, liability may be established if the Court answers all three of

the below factors in the affirmative:

(1) whether the supervisor had actual or constructive knowledge that

his subordinate was engaged in conduct that posed a pervasive and

13

unreasonable risk of constitutional injury; (2) whether the supervisor's

response to that knowledge was so inadequate as to show deliberate

indifference to or tacit authorization of the alleged offensive practices;

and (3) whether there was an affirmative causal link between the

supervisor's inaction and the particular constitutional injury suffered by

the plaintiff.

Younger v. Crowder, 79 F 4th 378, 384 n.16 (4th Cir. 2028) (citing Shaw, 13 F.3d at

799) Gnternal quotations omitted). Recently, however, the Fourth Circuit has noted

that a simpler question—whether the supervisor was deliberately indifferent—is

“more in line with the Supreme Court’s statement that supervisors can only be liable

for their own misconduct in § 1983 suits.” Id. (citing Iqbal, 556 U.S. at 677). On this

premise alone, the Estate’s supervisory liability theory against Johnson must fail.

The Estate does not offer sufficient allegations that Johnson was deliberately

indifferent. To show deliberate indifference, a plaintiff may allege “[a] supervisor's

continued inaction in the face of documented widespread abuses.” Slakan v. Porter,

737 F.2d 368, 373 (4th Cir. 1984). A plaintiff “ordinarily ... cannot satisfy his burden

of proof by pointing to a single incident or isolated incidents, for a supervisor cannot

be expected to promulgate rules and procedures covering every conceivable

occurrence within the area of his responsibilities.” Jd. (citation modified). Nothing

in the Complaint suggests that Johnson was on notice or should have anticipated the

tragic outcome that evening. With “no basis upon which to anticipate the misconduct”

(id.), Johnson cannot be said to have been deliberately indifferent under a supervisory

liability theory.®

6 For completeness, it is worth noting that the Estate also does not sufficiently allege

a “pervasive and unreasonable risk of constitutional injury to citizens like [Davis].”

14

Perhaps recognizing that the Estate cannot establish deliberate indifference

without any notice of prior conduct, the Estate instead argues such a requirement is

unnecessary because Johnson was on scene during the incident. See Dkt. 29 at 8

(noting Johnson was “personally present at the scene during all relevant times”

(emphasis in original)). The Estate would have the Court assign liability when an

officer’s “failure to act” sets in motion a series of events that causes another officer to

employ excessive force. Dkt. 29 at 8; see also id. (arguing “[t]here is no indication that

[Johnson] implemented any plan to safely apprehend [Davis]”). In doing so, the

Estate attempts to remove the touchstone of the supervisory liability analysis: the

“information known to a supervisor before an incident occurs.” Danser v. Stansberry,

772 F.3d 340, 350 (4th Cir. 2014) (emphasis in original) (citing Shaw, 13 F.3d at 798-

800)). That is not permissible under Fourth Circuit precedent. See Gandy v. Robey,

520 F. App’x 134, 141-42 (4th Cir. 2018) (vejecting effective causation theory against

sergeant alleging that he “formulat[ed] a plan that ‘set in motion’ a series of events

that [he] knew or should have known would cause the other officers to use

constitutionally excessive force against [the decedent]”); see also id. at 142-48

(rejecting supervisory liability claim where plaintiff made no allegations that

sergeant’s subordinates engaged in prior misconduct).

See Shaw, 13 F.3d at 799 Gnternal quotations omitted). “Establishing a ‘pervasive’

and ‘unreasonable’ risk of harm requires evidence that the conduct is widespread, or

at least has been used on several different occasions.” Wilkins v. Montgomery, 751

F.3d 214, 226 (4th Cir. 2014) (quoting Shaw, 13 F.3d at 799) (citation modified).

There are no non-conclusory allegations to that effect in the Complaint, so dismissal

on that basis is warranted as well.

15

The Estate also fails to plead a claim for bystander liability against Johnson.7

An officer may be liable under § 1983 pursuant to a bystander liability theory “if he:

(1) knows that a fellow officer is violating an individual's constitutional rights; (2) has

a reasonable opportunity to prevent the harm; and (3) chooses not to act.” Randall,

302 F.3d at 204 (quotation modified).

In this case, the Complaint fails to allege that Johnson had a reasonable

opportunity to prevent harm to Davis. For Johnson to be held liable, “there must

have been a realistic opportunity to intervene to prevent the harm from occurring,”

which typically requires a showing that “an officer had sufficient time to intercede or

was capable of preventing the harm alleged.” See Anderson v. Branen, 17 F.3d 552,

557 (2d Cir. 1994). Where an application of force was brief and without warning, an

officer does not have a realistic opportunity to intervene. See, e.g., Burgess v. Fischer,

735 F.3d 462, 475-76 (6th Cir. 2018) (affirming dismissal of excessive force claim

premised on bystander liability where the “incident [did not] last[] long enough” for

officers to “intercede to stop it” because the application of force was brief and

complaint did not allege officers “had reason to anticipate” the force before it was

applied); North Carolina ex rel. Hatley v. Westmoreland, 267 F. Supp. 2d 497, 502

(M.D.N.C. 2003) (dismissing excessive force claim premised on bystander lability

where both applications of force were “without warning” and “very brief in nature”).

7 Although the phrase “bystander liability” is nowhere in the Complaint, the Estate

was “not required to use any precise or magical words in their pleadings.” Stevenson

v. City of Seat Pleasant, 743 F.3d 411, 418 (4th Cir. 2014) (quoting Sansotta v. Town

of Nags Head, 724 F.3d 533, 548 (4th Cir. 2013)).

16

The Complaint alleges that immediately after the flashbang tossed at Davis went off,

the John Doe Deputies “reacted to the sound of the flash-bang and began firing

multiple rounds” at Davis. Dkt. 1 { 41. Allegations that Davis was shot and killed

“within a few seconds of the flash bang grenade detonating” do not plausibly allege

that Johnson had time to intervene. See Scott v. City of Saginaw, 738 F. Supp. 3d

937, 947 (E.D. Mich. 2024) (internal quotations omitted) (complaint failed to allege

bystander liability where it alleged that officers opened fire on plaintiff within

seconds of officer’s flashbang detonating).

Johnson did not personally deprive Davis of his constitutional rights and his

presence on scene does not change that analysis under Fourth Circuit precedent.

Therefore, under any proposed theory of personal, supervisory, or bystander liability,

the Complaint fails to state a claim against Johnson in his individual capacity.

C. The Estate Fails to Plead that Johnson in His Official Capacity

Deprived Davis of His Fourth Amendment Rights.

The Complaint also fails to state a claim against Johnson in his official capacity

under Monell v. Department of Social Services, 436 U.S. 658 (1978). A municipality

is a “person” within the meaning of § 1983 and it may be held liable for constitutional

violations of its agents “when execution of a government’s policy or custom, whether

made by its lawmaker or by those who edits or acts may fairly be said to represent

official policy, inflicts injury[.]” Jd. at 694. It is undisputed that Johnson in his official

capacity as representative of the Alamance County Sheriffs Office is a “municipality”

under Monell. See Dkt. 16 at 14 (citing Boyd v. Robeson County, 169 N.C. App. 460,

621, S.E.2d 1, 5 (2005)). And it is also undisputed that he holds policymaking

17

authority over county policing efforts as Sheriff of Alamance County. Cf. Parker v.

Bladen County, 583 F. Supp. 2d 736, 739 (E.D.N.C. 2008) (“[U]nder North Carolina

law, the sheriff, not the county encompassing his jurisdiction, has final policymaking

authority over hiring, supervising, and discharging personnel in the sheriff's office.”).

The only element of a Monell claim that the parties dispute is whether the

Complaint sufficiently alleges a policy or custom that inflicted Davis’s injury. See

Dkt. 16 at 14-16; Dkt. 29 at 9-13. It does not. Under Monell, a municipality’s liability

“arises only when the constitutionally offensive actions of employees are taken in

furtherance of some municipal ‘policy or custom.” Milligan v. City of Newport News,

743 F.3d 227, 229 (4th Cir. 1984). Accordingly, to plead a Monell claim, the Estate is

“obliged to ‘identify a municipal ‘policy,’ or ‘custom’ that caused [its] injury.” Walker □

uv. Prince George’s County, 575 F.3d 426, 481 (4th Cir. 2011) (quoting Bd. of Comm □□□

of Bryan Cnty. v. Brown, 520.U.S. 397, 403 (1997)). Here, the Estate asserts

“It|hreadbare recitals of the elements of [its] cause of action, supported by mere

conclusory statements.” Id. (quoting Jqbal, 556 U.S. at 672). Indeed, the Complaint

does nothing more than plead in conclusory fashion the possible bases for concluding

that a policy or custom exists. See Dkt. 1 4] 56-57; see also Lyle v. Doyle, 326 F.3d

463, 471 (4th Cir. 2008) (listing the “four ways in which liability for a policy or custom

may arise”). The Court does not credit those allegations. See Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 555 (2007) (Rule 12(b)(6) requires more than “a formulaic

recitation of the elements of a cause of action”).

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Perhaps recognizing this shortcoming, the Estate instead argues the

Complaint sufficiently alleges that “the need for more or different training is so

obvious” from Defendants’ conduct in this one instance that the Court may infer a

policy or custom. Dkt. 29 at 11 (quoting City of Canton v. Harris, 489 U.S. 378, 390

(1989)). It is true that the Supreme Court in City of Canton v. Harris, “did not

foreclose the possibility that evidence of a single violation of federal rights,

accompanied by a showing that a municipality has failed to train its employees to

handle reoccurring situations presenting an obvious potential for such a violation,

could trigger municipal liability.” Brown, 520 U.S. at 409.

But the Court does not agree that this is such a case where Canton would

apply. “Because Monell lability cannot be predicated on a theory of respondeat

superior, a single incident is almost never enough to warrant municipal liability.”

Est. of Jones by Jones v. City of Martinsburg, 961 F.3d 661, 672 (4th Cir. 2020). The

Complaint contains only conclusory allegations that Johnson failed to train his

deputies. See Dkt. 1 {] 57; see also Connick v. Thompson, 563 U.S. 51, 638 (2011)

(Canton conceived of a “city that arms its police force and deploys the armed officers

... Without training the officers in the constitutional limitation on the use of deadly

force” (emphasis added)). And it alleges only that Johnson could have and should

have intervened to stop officers from shooting Davis during the encounter in question,

which is insufficient to prove deliberate indifference under Monell. See Jones, 961

F.3d at 672 (“Monell’s deliberate indifference standard ensures that a municipality

either knew or should have known about the deficiency, so it could remedy that

19

deficiency.”). “At its core, the strict Monell test asks for some level of notice” and

allegations that the ten John Doe Deputies “act[ed] at once” in front of Johnson “could

not have put” Johnson and the Sheriffs Office “on earlier notice of the need to better

train its officers.” See id. (allegations that five officers simultaneously violated

department’s use-of-force policy were insufficient to establish claim for failure to

train). The Estate’s claims against Johnson in his official capacity thus fail.

II. The Estate Fails to Plead a Wrongful Death Claim Against Johnson.

As explained above, the Estate’s federal excessive force claim against Johnson

fails. Thus, to the extent the Estate alleges a state law wrongful death claim against

Johnson, this claim must also fail. Wrongful death under North Carolina law

requires a predicate “wrongful act” to impose liability. Cf. N.C. Gen. Stat. § 28A-18-

2 (requiring a predicate “wrongful act” to impose municipal liability). In this case,

the excessive force claims are the only qualifying predicate acts the Estate pleads

against Johnson. See Franklin, 64 F.4th at 519 (“The use of excessive force is a

wrongful act that can trigger the statute.”). For the reasons noted above, the

excessive force claims against Johnson are not adequately pleaded. Thus, any

wrongful death claim against Johnson must also fail.

Johnson, however, on behalf of the as-of-yet-to-appear John Doe Deputies also

argues that the Estate’s wrongful death claims against the deputies are time-barred.

Johnson argues “the Estate did not identify or name the [John Doe Deputies]” “within

two years of Davis’s death on May 8, 2023,” as required by North Carolina’s “strict

two-year statute of limitation for wrongful death claims.” Dkt. 16 at 18 (citing N.C.

Gen. Stat. § 1-53(4)). The argument is premature as the John Doe Defendants are

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not yet in the case. It is undisputed that the lawsuit was filed within the two-year

statute of limitations because the Complaint was filed on November 19, 2024. See

generally Dkt. 1. Whether the Estate may seek leave to amend the Complaint to

substitute named deputies for the John Doe Deputies is a question best reserved for

a different procedural posture, namely if the Estate moves to amend its pleadings.

See Fed. R. Civ. P. 15(c)(1)(C).

Ill. The Estate Fails to Allege that Johnson Caused Davis to Suffer Emotional

Distress.

The Estate erroneously pleads state law claims for intentional and negligent

infliction of emotional distress against Johnson on behalf of Davis’s mother, Fujiwara,

even though she is only involved in this case as the personal representative of the

Estate. Because she is not an individual plaintiff in the case, Davis’s mother may

only bring a claim as “a personal representative of [the] decedent’s estate.” See Est.

of Seymour by Seymour v. Orange Cnty. Bd. of Educ., No. COA19-334-12, 2021 WL

347630, at *3 (N.C. Ct. App. Feb. 2, 2021). Indeed, “[a]ll actions or proceedings

brought by ... personal representatives ... upon any cause of action or right to which

the estate of the decedent is the real party in interest, must be brought by ... them in

their representative capacity.” N.C. Gen. Stat. § 28A-18-3 (emphasis added). To

survive a motion for judgment on the pleadings, therefore, the Complaint must

plausibly allege Defendants intentionally and/or negligently inflicted emotional

distress on Davis.

Here, however, all the allegations in the Complaint concerning the Estate’s

intentional and negligent infliction of emotional distress claims pertain to Fujiwara,

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Davis’s mother (who is not a party to this action), and not Davis. See, e.g., Dkt. 1 □

81 (“Defendant|s] either knew, or should have known ... Plaintiff was either certain,

or substantially certain, to suffer severe ... emotional distress by reason of the

conduct taken against [Davis].”). In short, the Complaint does not sufficiently allege

“the type, manner, or degree of severe emotional distress’ Davis—as opposed to

Fujiwara as an individual plaintiff—suffered, which is required “to state a valid claim

for” intentional and negligent infliction of emotional distress. See Horne v.

Cumberland Cnty. Hosp. Sys., Inc., 228 N.C. App. 142, 746 S.E.2d. 13, 20 (2018).

Because the Estate erroneously asserts state-law intentional and negligent infliction

of emotional distress claims on behalf of Fujiwara, not Davis, these claims fail.

CONCLUSION

For the reasons stated in this Memorandum Opinion and Order, Johnson’s

motion for judgment on the pleadings is GRANTED IN PART and DENIED IN PART.

Count I is DISMISSED WITH PREJUDICE as to all Defendants to the extent

it asserts violations of the Due Process Clause of the Fifth Amendment and the Equal

Protection Clause of the Fourteenth Amendment. Counts I and II are DISMISSED

WITH PREJUDICE as to Johnson in his official capacity. Counts I and II are

DISMISSED WITHOUT PREJUDICE as to Johnson in his individual capacity

because the Court cannot conclude that the deficiencies it has identified are

“incurable through amendment.” See McLean v. United States, 566 F.3d 391, 400

(4th Cir. 2009). For the same reason, Counts III and IV are also DISMISSED

WITHOUT PREJUDICE. See id.

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Because the only remaining defendants are the unidentified John Doe

Deputies and Unknown Surety, the Estate is ORDERED TO SHOW CAUSE why this

case should not be dismissed. See Fed. R. Civ. P. 4(m) (“If a defendant is not served

within 90 days after the complaint is filed, the court ... must dismiss the action

without prejudice against that defendant|.]”); Attkisson v. Holder, 925 F.3d 606, 627-

28 (4th Cir. 2019) (affirming dismissal without prejudice under Rule 4(m) for failure

to timely identify and serve Doe defendants). The Estate is further ordered to explain

why proceedings in this Court may proceed against the Unknown Surety considering

this Court’s dismissal with prejudice of all claims against Johnson in his official

capacity. See, e.g., Moore v. Barnes, 802 F. Supp. 3d 792, 854 (E.D.N.C. 2025) “A

surety ... is a necessary party to proceedings against the sheriff and sheriffs deputies

in their official capacities.” (emphasis added)); Summey v. Barker, 142 N.C. App. 688,

544 §.E.2d 262, 265 (2001) (“The statutory requirement of a bond removes the sheriff

from the protective embrace of governmental immunity ....” (internal quotations

omitted)). The Estate has fourteen days from the entry of this Memorandum Opinion

and Order to respond to the show cause order.

Johnson’s motion is DENIED in all other respects. It is so ORDERED.

This the 3rd day of March, 2026.

UNITED STATES DISTRICT JUDGE

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