POLK

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

BRANDON CHRISHON POLK, )

)

Plaintiff, )

)

v. ) 1:24cv00744

)

D. CLARK, et al., )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

THOMAS D. SCHROEDER, District Judge.

Plaintiff Brandon Chrishon Polk, a pretrial detainee

proceeding pro se, alleges that his rights were violated by

injuriously tight handcuffs. The Defendants include the jailer

who applied the handcuffs (Sergeant Clark), a group of bystander

jailers (Sergeant Bradsher and Officers J. Williams, S. Williams,

Sumpter, and Davis), a nurse (Byrd), the sheriff (Clarence

Birkhead), the county (Durham County), the jail (Durham County

Detention Center), and the Chief Constable of Durham Constabulary

(Rachel Bacon).1 Sergeant Clark, Sergeant Bradsher, and Sheriff

Birkhead have moved to dismiss the claims against them. (Doc.

10.) Polk filed a response in opposition (Doc. 13), along with a

1 Defendants point out that Polk misspelled Sergeant Bradsher’s name as

“Braysher” in the complaint. (Doc. 11 at 9 n.2.) Defendants themselves,

however, fluctuate between referring to him as “Bradsher” and “Bradshear”

in their brief. (Contrast id. at 7, with id. at 21.) Because the motion

to dismiss spells his name as “Bradsher,” the court adopts this spelling.

(See Doc. 10.)

supplemental response (Doc. 18). Nurse Byrd has also moved to

dismiss the claims against her. (Doc. 19.) Polk filed a response

in opposition (Doc. 22), and Nurse Byrd replied (Doc. 23). For

the reasons set forth below, the motions to dismiss will be granted

in part and denied in part.

I. BACKGROUND

Polk appears to have been a pretrial detainee at Durham County

Detention Center at the time of injuries alleged in this case.

(See Doc. 2 at 12.) The facts, taken from the complaint and viewed

in the light most favorable to Polk, are as follows:

On August 30, 2021, Polk alleges that Officer J. Williams

directed him to pack his belongings because he would be leaving

Durham County Detention Center. (Id. at 6.) Dissatisfied with

how long Polk was taking, however, Sergeant Clark told Polk that

he would pack Polk’s belongings instead. (Id. at 7.) Sergeant

Clark directed Polk to step outside his cell, then handcuffed him.

(Id.) Polk asked Sergeant Clark why he was being placed in

handcuffs. (Id.) Polk alleges that he repeatedly told Sergeant

Clark that the handcuff was too tight on his right wrist, and that

he asked Sergeant Clark to loosen it. (Id.) But according to

Polk, Sergeant Clark ignored his requests and asked Officers J.

Williams and S. Williams to take Polk downstairs so he could wait

with the other detainees. (Id.) Polk “continually yelled and

asked for officers to loosen the cuffs,” but Officers J. Williams

and S. Williams informed him that they could not loosen the

handcuffs because they did not have a key. (Id.)

Around twenty to thirty minutes later, Sergeant Clark

returned and escorted Polk to another part of the jail. (Id. at

7-8.) They ran into Officer Davis, who asked Sergeant Clark “about

the commotion going on and made a comment to [Sergeant] Clark about

[it] being too early to be petty.” (Id. at 8.) Sergeant Clark

eventually escorted Polk to the booking area, where Polk saw

Sergeant Bradsher and Officer Sumpter “behind the control desk and

instantly complained about [his] wrist.” (Id.) Sergeant Clark

left, and Polk “yelled for help” from Sergeant Bradsher and Officer

Sumpter to remove the handcuffs due to their tightness. (Id. at

9.) Sergeant Bradsher and Officer Sumpter both informed Polk that

they did not have a key, but they assured Polk he “would get out

of the handcuffs.” (Id.)

Eventually, Sergeant Clark returned and removed the

handcuffs. (Id.) Polk alleges that his right wrist bore a “black

and purplish bruise from the handcuffs,” his “fingers were numb,”

and he “could not feel [his] hand.” (Id.) He “started panicking,

yelling and requesting to see a nurse.” (Id.) Nurse Byrd came,

and Polk asked her for a wrap for his wrist. (Id.) However, Nurse

Byrd told him that she did not have a wrap and that “she could not

do anything for” him. (Id.)

That same day, Polk was transferred to a facility in Oklahoma.

(Id. at 9-10.) The next day, Polk alleges, a nurse at the new

facility gave him medication and a bandage and told him that he

had nerve damage in his wrist and fingers due to Sergeant Clark’s

having handcuffed him too tightly. (Id. at 10.) In September

2021, Polk was transferred to a facility in West Virginia where he

wore a hand brace until January 2022, when someone took it from

him. (Id.) A year later, a medical examiner told Polk that he

had nerve damage in his elbow. (Id.)

Polk alleges that these injuries cause him “a lot of pain and

problems.” (Id.) He had difficulty handwriting books, songs,

movie scripts, and letters to his girlfriend. (Id.) According to

Polk, he also began to experience “a [sense] of fear of being put

in handcuffs” and a feeling of “pain in [his] wrist whenever

officers put [him] in handcuffs.” (Id. at 11.) Finally, Polk

alleges that the tight handcuffs were part of a larger pattern of

Sergeant Clark bullying and scaring inmates. (Id.) This pattern

included “bother[ing Polk] a lot because [Polk] drew pictures on

[his] wall” and “cut[ting] the phones off a few times when [Polk]

was on them during recreation.” (Id.)

Construing Polk’s pro se complaint liberally, it includes the

following claims:

•

Sergeant Clark used excessive force in violation of the

Fourteenth Amendment by handcuffing Polk too tightly (id. at

15);2

•

Sergeant Bradsher and Officers J. Williams, S. Williams,

Sumpter, and Davis are liable for Sergeant Clark’s

constitutional violation pursuant to a theory of bystander

liability (id. at 16);

•

Nurse Byrd was deliberately indifferent to Polk’s serious

medical needs, in violation of the Fourteenth Amendment (id.

at 17);

•

Sergeant Clark committed assault, battery, and gross

negligence by handcuffing Polk too tightly (id. at 18, 20);

•

All bystander jailers and Nurse Byrd negligently allowed

Polk to be injured by the tight handcuffs (id. at 19);

•

All Defendants negligently inflicted emotional distress

against Polk (id. at 21); and

•

Sheriff Birkhead and Constable Bacon negligently hired

and/or trained Sergeant Clark (id. at 22).

Polk does not specify which of these claims he intended to bring

against Durham County and Durham County Detention Center. (See

id. at 15-22.) He does appear to have intended to sue all

Defendants in their official and individual capacities. (See id.

2 The complaint only expressly claims violations of the Fourth and Eighth

Amendments. (Doc. 2 at 15-16.) However, “a pretrial

detainee . . . cannot be subject to any form of ‘punishment’”; it is

therefore the Fourteenth Amendment’s Due Process Clause that governs

this case. See Mays v. Sprinkle, 992 F.3d 295, 300 (4th Cir. 2021)

(quoting Belcher v. Oliver, 898 F.2d 32, 34 (4th Cir. 1990)).

at 2-3.)

II. ANALYSIS

A. Standard of Review

Polk proceeds pro se. Thus, his complaint is

“not . . . scrutinized with such technical nicety that a

meritorious claim should be defeated.” Gordon v. Leeke, 574 F.2d

1147, 1151 (4th Cir. 1978). But the liberal construction of a pro

se litigant’s filing does not require the court to ignore clear

defects in it, Bustos v. Chamberlain, No. 09-1760, 2009 WL 2782238,

at *2 (D.S.C. Aug. 27, 2009), or to become an advocate for the pro

se party, Weller v. Dep’t of Soc. Servs., 901 F.2d 387, 391 (4th

Cir. 1990); see also Beaudett v. City of Hampton, 775 F.2d 1274,

1278 (4th Cir. 1985) (noting that “[d]istrict judges are not mind

readers”). Moreover, pro se parties are expected to comply with

applicable procedural rules. See Chrisp v. Univ. of N.C.-Chapel

Hill, 471 F. Supp. 3d 713, 716 (M.D.N.C. 2020) (requiring pro se

plaintiff to comply with the Federal Rules of Civil Procedure).

Rule 8 of the Federal Rules of Civil Procedure provides that

a pleading must contain “a short and plain statement of the claim

showing that the pleader is entitled to relief.” Fed. R. Civ. P.

8(a)(2). A Rule 12(b)(6) motion to dismiss is meant to “test[]

the sufficiency of a complaint” and not to “resolve contests

surrounding the facts, the merits of a claim, or the applicability

of defenses.” Republican Party of N.C. v. Martin, 980 F.2d 943,

952 (4th Cir. 1992). To survive such a 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)).

In considering a Rule 12(b)(6) motion, a court “must accept

as true all of the factual allegations contained in the complaint,”

Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam), and all

reasonable inferences must be drawn in the non-moving party’s

favor, Ibarra v. United States, 120 F.3d 472, 474 (4th Cir. 1997).

However, the court “need not accept as true unwarranted inferences,

unreasonable conclusions, or arguments.” E. Shore Mkts., Inc. v.

J.D. Assocs. Ltd. P’ship, 213 F.3d 175, 180 (4th Cir. 2000). Rule

12(b)(6) protects against meritless litigation by requiring

sufficient factual allegations “to raise a right to relief above

the speculative level” so as to “nudge[] the[] claims across the

line from conceivable to plausible.” Twombly, 550 U.S. at 555,

570; see also Iqbal, 556 U.S. at 678. Thus, mere legal conclusions

should not be accepted 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 a 42 U.S.C. § 1983 lawsuit or a suit seeking redress from

a governmental entity, officer, or employee, a district court may

sua sponte consider whether a prisoner fails to state a claim and

dismiss accordingly. 28 U.S.C. § 1915A(b); 42 U.S.C. § 1997e(c);

see, e.g., Ford v. Northam, No. 22-cv-00122, 2023 WL 2767780, at

*5 n.9 (W.D. Va. Mar. 31, 2023), aff’d per curiam, 2023 WL 6057493

(4th Cir. Sep. 18, 2023).

B. Failure to Serve

“If a defendant is not served within 90 days after the

complaint is filed, the court – on motion or on its own after

notice to the plaintiff – must dismiss the action without prejudice

against that defendant or order that service be made within a

specified time.” Fed. R. Civ. P. 4(m). “But if the plaintiff

shows good cause for the failure, the court must extend the time

for service for an appropriate period.” Id.

Here, Polk has not served Officer S. Williams, Durham County,

or Durham County Detention Center despite being ordered to do so

and provided with forms for this purpose.3 (Docs. 6, 7.) Polk

has also not shown any cause for the failure of service, and more

than 90 days have passed since Polk filed his complaint on

September 3, 2024. Dismissal is therefore warranted as to all

claims against Officer S. Williams, Durham County, and Durham

County Detention Center.

3 It is possible that the court provided Polk with one less summons form

than the number of Defendants, because the ECF system does not list

Officer S. Williams as a Defendant. However, this discrepancy does not

explain why Polk failed to serve three Defendants, not just one.

C. Claims Against Nurse Byrd

Nurse Byrd asserts that Polk’s claims against her must be

dismissed pursuant to the Confirmation and Stay Orders entered by

the United States Bankruptcy Court for the Southern District of

Texas involving her employer Wellpath, LLC (“Wellpath”). (Doc. 20

at 6.) Alternatively, Nurse Byrd contends that Polk failed to

sufficiently serve her with process. (Id. at 7-9.) Polk counters

that he filed the complaint before Wellpath filed for bankruptcy,

and he argues that he properly served Nurse Byrd. (Doc. 22.)

Nurse Byrd worked on the medical staff at Durham County

Detention Center as an employee of Wellpath. (Doc. 20 at 1.)

Wellpath is subject to a bankruptcy reorganization plan approved

by a bankruptcy court. (Doc. 20 at 2; see Doc. 19-2.) And as

Nurse Byrd correctly argues, pursuant to Article IX of the plan,

all claims held by currently or formerly incarcerated individuals

against employees of Wellpath (to the extent they were acting

within the scope of their employment) are released unless either

the claimant or the Wellpath employee opted out of the release

during the defined period. (Doc. 19-3 ¶¶ 5-6; see Doc. 19-2 at

128-34.) Polk had until July 30, 2025, to opt out from the third-

party release detailed in the plan, but he did not do so. Thus,

all claims against Nurse Byrd will be dismissed.4

4 The approved plan permanently enjoins claimants from both commencing

and continuing actions against Wellpath’s employees; thus, it does not

D. Claims Against Constable Bacon

Polk’s complaint describes Sheriff Birkhead as the sheriff

“during 2021” and Constable Bacon as the “current sheriff.” (Doc.

2 at 5.) Typically, “a court accepts all well-pled facts as true”

when considering a motion to dismiss. See Nemet Chevrolet, Ltd.

v. Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir. 2009).

But “the court may take judicial notice of certain facts without

converting a motion to dismiss to a motion for summary judgment,”

including facts about whether a public official holds office. See,

e.g., White v. Vance County, No. 19-CV-00467, 2020 WL 8474575, at

*3 n.2 (E.D.N.C. Dec. 18, 2020).

Here, Defendants argue, and the court takes judicial notice

of the fact, that Sheriff Birkhead remains the Sheriff of Durham

County (see Doc. 11 at 7), and Rachel Bacon is the Chief Constable

of the Durham Constabulary in the United Kingdom (see id. at 7

n.1; Chief Constable Rachel Bacon, Durham Constabulary,

https://www.durham.police.uk/police-forces/durham-constabulary/

areas/about-us/about-us/our-people/chief-constable-rachel-bacon/

(last visited Mar. 10, 2026)). Other than Polk’s incorrect

allegation that Constable Bacon is the current sheriff, Polk has

stated no facts connecting her to his alleged injuries. His claims

matter that Polk filed his complaint first. (See Doc. 19-2 at 134.)

Moreover, because dismissal is appropriate on the grounds set out, the

court need not address Nurse Byrd’s arguments regarding insufficient

service of process. (See Doc. 20 at 7-9.)

against Constable Bacon will therefore be dismissed.

E. Official Capacity Constitutional Claims

Defendants contend that Polk has not alleged any policy or

procedure underlying his excessive force claim. (Doc. 11 at 12.)

Further, Defendants assert that Polk has not alleged any policy or

decision by Sheriff Birkhead or the sheriff’s office “so permanent

and well settled as to constitute ‘custom or usage’ with the force

of law.” (Id. (quoting Carter v. Morris, 164 F.3d 215, 218 (4th

Cir. 1999)).) Polk counters that he has alleged “ongoing,

persistent, and widespread” violative conduct against him and

other inmates. (Doc. 18 at 3.)

“Official capacity suits generally represent but another way

of pleading an action against the entity of which the officer is

an agent . . . .” Hughes v. Blankenship, 672 F.2d 403, 406 (4th

Cir. 1982). And pursuant to North Carolina law, a sheriff’s office

and its employees are municipal agents. Gantt v. Whitaker, 203 F.

Supp. 2d 503, 508-09 (M.D.N.C. 2002), aff’d per curiam, 57 F. App’x

141 (4th Cir. 2003); Boyd v. Robeson County, 621 S.E.2d 1, 12 (N.C.

Ct. App. 2005). Thus, the claims against Defendants in their

official capacities “are treated as suits against the

municipality.” Atkinson v. Godfrey, 100 F.4th 498, 509 (4th Cir.

2024).

“[A] municipality cannot be held liable under § 1983 on a

respondeat superior theory.” Monell v. Dep’t of Soc. Servs., 436

U.S. 658, 691 (1978). Rather, “[t]o hold a municipality liable

for a constitutional violation pursuant to Monell, a plaintiff

must establish ‘the existence of an official policy or custom that

is fairly attributable to the municipality and that proximately

caused the deprivation of [his] rights.’” Johnson v. Baltimore

City, 163 F.4th 808, 821-22 (4th Cir. 2026) (quoting Howard v.

City of Durham, 68 F.4th 934, 952 (4th Cir. 2023)). The policy or

custom may be expressed:

(1) [T]hrough 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.

Howard, 68 F.4th at 952 (alterations in original) (quoting Starbuck

v. Williamsburg James City Cnty. Sch. Bd., 28 F.4th 529, 533 (4th

Cir. 2022)). “Proof of a single incident of unconstitutional

activity is not sufficient to impose liability under Monell, unless

proof of the incident includes proof that it was caused by an

existing, unconstitutional municipal policy . . . .” City of

Oklahoma City v. Tuttle, 471 U.S. 808, 823-24 (1985) (plurality

opinion). When a § 1983 claim is based on inadequate training,

“the ‘complaint should contain facts revealing: (1) the nature of

the training, (2) that the training was a “deliberate or conscious”

choice by the municipality, and (3) that the officer’s conduct

resulted from said training.’” Harrington v. S. Health Partners,

Inc., No. 21CV744, 2022 WL 3998750, at *5 (M.D.N.C. Sep. 1, 2022)

(quoting Peters v. City of Mount Rainier, No. 14-00955, 2014 WL

4855032, at *5 (D. Md. Sep. 29, 2014)).

Here, the remaining Defendants are all employees of the

sheriff’s office, meaning that all the remaining official capacity

claims against them are claims against a municipality. Yet as

Defendants rightly contend (Doc. 11 at 12), Polk has not alleged

any express policy, decision by those with final policymaking

authority, or widespread practice of using tight handcuffs that

led to his alleged injuries. Rather, Polk attempts to allege a

failure to properly train officers when he alleges that Sheriff

Birkhead

knowingly, willfully, and intentionally violate[d his]

rights with the unlawful use of improper training and

negligent hiring of the NC law by employing defendants

that continue to use unlawful acts against [Polk] and

other inmates of the Durham County Detention Center,

which is repeated conduct practiced by their employees

without proper supervision.

(Doc. 2 at 22.) This statement, however, is conclusory and fails

to allege any facts identified by the court in Harrington as

necessary to state an improper training claim. Thus, Defendants’

motion to dismiss all constitutional claims against them in their

official capacities will be granted.

F. Constitutional Claim Against Sergeant Clark in His

Individual Capacity

Defendants next argue that Polk has made only conclusory

allegations that do not establish the violation of a clearly

established right by Sergeant Clark. (Doc. 11 at 16.) Thus,

Defendants assert that Sergeant Clark is entitled to qualified

immunity. (Id. at 17.) Polk counters that a reasonable officer

would have recognized the unlawfulness of Sergeant Clark’s conduct

because of Polk’s “complaining and yelling.” (Doc. 18 at 4.)

“The Fourteenth Amendment Due Process Clause protects

pretrial detainees from governmental action that is not rationally

related to a legitimate nonpunitive governmental purpose or that

is excessive in relation to that purpose.” Short v. Hartman, 87

F.4th 593, 608-09 (4th Cir. 2023) (citation modified), cert.

denied, 144 S. Ct. 2631 (2024). However, “[q]ualified immunity

shields government officials performing discretionary functions

from personal-capacity liability for civil damages under § 1983,

insofar as their conduct does not violate clearly established

statutory or constitutional rights of which a reasonable person

would have known.” Davison v. Rose, 19 F.4th 626, 640 (4th Cir.

2021) (quoting Ridpath v. Bd. of Governors Marshall Univ., 447

F.3d 292, 306 (4th Cir. 2006)). “Government officials are entitled

to qualified immunity unless ‘(1) the allegations underlying the

claim, if true, substantiate the violation of a federal, statutory,

or constitutional right; and (2) this violation was of a clearly

established right of which a reasonable person would have known.’”

Id. (quoting Ridpath, 447 F.3d at 306). “The plaintiff bears the

burden [of proof] on the first prong, and the officer bears the

burden on the second prong.” Stanton v. Elliott, 25 F.4th 227,

233 (4th Cir. 2022). As to the second prong, in other words, the

officer “bear[s] the burden of proving that the unlawfulness of

the[] conduct was not clearly established.” Garrett v. Clarke, 74

F.4th 579, 584 (4th Cir. 2023).

“To determine whether a right was clearly established,” the

Fourth Circuit “look[s] to ‘decisions of the Supreme Court, this

court of appeals, and the highest court of the state in which the

case arose.’” Id. (quoting Hill v. Crum, 727 F.3d 312, 322 (4th

Cir. 2013)). “In the absence of controlling authority, however,

‘a robust consensus’ of persuasive authority may demonstrate the

existence of a rule ‘that every reasonable official would know.’”

Id. (quoting District of Columbia v. Wesby, 583 U.S. 48, 63

(2018)).

Here, Defendants point to no authority indicating that a non-

threatening pretrial detainee’s right to be free from excessively

tight handcuffs was not clearly established. In fact, a consensus

of persuasive authority demonstrates that if an officer refuses to

check on a non-threatening pretrial detainee who complains that

his handcuffs are unreasonably tight, and the tight cuffing causes

that person to suffer an actual physical injury, the detainee has

stated a claim for excessive force in violation of the Fourteenth

Amendment. See, e.g., Karn v. PTS of Am., LLC, 590 F. Supp. 3d

780, 819 (D. Md. 2022); James v. Lee, 485 F. Supp. 3d 1241, 1257

(S.D. Cal. 2020); Hewitt v. Bennett, No. 19-1927, 2020 WL 3420756,

at *4 (D.S.C. June 22, 2020); Lefever v. Nicholson, No. 10-CV-

01917, 2013 WL 1068817, at *4 (D. Nev. Mar. 14, 2013).

Polk alleges that Sergeant Clark refused to check on or loosen

his handcuffs, even though Polk posed no threat and repeatedly

complained that his handcuffs were too tight. (Doc. 2 at 6-9.)

As a result, Polk alleges that he had to wear a hand brace for

months and suffered nerve damage in his right elbow. (Id. at 24.)

These allegations are sufficient to state a claim that Sergeant

Clark violated a clearly established right pursuant to the

Fourteenth Amendment.

G. Bystander Liability § 1983 Claims Against Remaining

Bystander Jailers in Their Individual Capacities

Defendants further contend that the bystander jailers are

entitled to qualified immunity. (Doc. 11 at 17.) Specifically,

Defendants argue that Polk’s complaint contains no facts to

demonstrate that any bystander jailers knew of an excessive force

violation, participated in such a violation, or had reason to

believe that the violation occurred. (Id. at 16-17.) Polk

counters that his “complaining and yelling” would have led a

reasonable officer to know that Sergeant Clark’s conduct was

unlawful. (Doc. 18 at 4.)

“[A]n officer may be liable under § 1983, on a theory of

bystander liability, 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 v. Prince George’s County, 302 F.3d 188, 204 (4th

Cir. 2002) (footnote omitted). The bystander must have “specific

knowledge” of the violation, or bystander liability will not

attach. Johnson v. Robinette, 105 F.4th 99, 124 (4th Cir. 2024).

Here, Polk alleges that the remaining bystander jailers

(Sergeant Bradsher and Officers J. Williams, Davis, and Sumpter)

were all present when he complained that his handcuffs were too

tight, giving them specific knowledge of Sergeant Clark’s alleged

constitutional violation.5 (Doc. 2 at 8-9.) Polk’s allegations

also suggest that these bystander jailers had reasonable

5 Polk expressly alleges that he complained about his handcuffs in the

presence of all the bystander jailers except Officer Davis. But Polk

does allege that he “was still complaining” about his wrist while

Sergeant Clark escorted him through the hallway of the jail. (Doc. 2

at 8.) According to Polk, he and Sergeant Clark were then stopped by

Officer Davis, “who was making rounds in the pod [across] the hall.”

(Id.) Officer Davis allegedly asked Sergeant Clark “about the commotion

going on and made a comment . . . to [Sergeant] Clark about [it] being

too early to be petty,” and then Sergeant Davis “talk[ed] to her [Officer

Davis] for a few seconds” before taking Polk to the elevator. (Id.)

Given the court’s obligation to construe the complaint liberally and to

view all allegations in the light most favorable to Polk, these

allegations, including Officer Davis’s admonition to Sergeant Clark that

he was being “petty,” plausibly allege that Officer Davis had knowledge

of Sergeant Clark’s use of excessive force yet failed to intervene.

opportunity to, at the very least, ask Sergeant Clark to loosen

the handcuffs. (See id.) But they did not do so. (See id.)

Accordingly, Polk has sufficiently alleged excessive force claims

against the remaining jailers under a theory of bystander

liability.

H. Supervisory Liability § 1983 Claim Against Sheriff

Birkhead in His Individual Capacity

Defendants next argue that Polk’s complaint fails to allege

facts that would demonstrate Sheriff Birkhead’s actual or

constructive knowledge that his subordinates were “engaged in

conduct posing a pervasive and unreasonable risk of constitutional

injury.” (Doc. 11 at 14.) In fact, Defendants contend that Polk

has not alleged facts to show that Sheriff Birkhead “had knowledge

of the events at all.”6 (Id.)

While supervisory liability does not exist for official

capacity § 1983 claims, it does exist for individual capacity

claims. There are three elements necessary to establish

supervisory liability pursuant to § 1983:

(1) that the supervisor had actual or constructive

knowledge that his subordinate was engaged in conduct

that posed “a pervasive and unreasonable risk” of

constitutional injury to citizens like the plaintiff;

(2) that the supervisor’s response to that knowledge was

so inadequate as to show “deliberate indifference to or

tacit authorization of the alleged offensive

6 It is doubtful that Polk has adequately invoked a supervisory liability

claim against Sheriff Birkhead in his individual capacity pursuant to

§ 1983. (See Doc. 2 at 15-22.) Nevertheless, to the extent a liberal

construction of Polk’s complaint indicates such a claim, this claim will

be dismissed.

practices,”; and (3) that there was an “affirmative

causal link” between the supervisor’s inaction and the

particular constitutional injury suffered by the

plaintiff.

Shaw v. Stroud, 13 F.3d 791, 799 (4th Cir. 1994) (first quoting

Miltier v. Beorn, 896 F.2d 848, 854 (4th Cir. 1990); and then

quoting Slakan v. Porter, 737 F.2d 368, 373, 376 (4th Cir. 1984)).

Here, Defendants argue that Polk has only made conclusory

allegations regarding Sheriff Birkhead’s knowledge of and causal

relationship with Sergeant Clark’s conduct. (Doc. 11 at 14; see

Doc. 2 at 21-22.) This is correct. The court will therefore

dismiss Polk’s constitutional claim against Sheriff Birkhead in

his individual capacity.

I. Tort Claims Against Defendants in Their Official

Capacities

Defendants next contend that they are protected in their

official capacities from Polk’s tort claims based on governmental

immunity. (Doc. 11 at 17.) Further, Defendants assert that Polk

has failed to allege waiver of governmental immunity or to name

the surety of the sheriff’s office’s liability insurance as a

party. (Id. at 19.) Polk counters by referencing his previous

argument that he has alleged “ongoing, persistent, and widespread”

violative conduct by Defendants. (Doc. 18 at 5.)

“Because a suit against a public official in his official

capacity operates as a suit against the governmental entity itself,

an official sued in this capacity may raise the defense of

governmental immunity.” Butterfield v. Gray, 866 S.E.2d 296, 301

(N.C. Ct. App. 2021). “Sheriffs, sheriff’s deputies, and jailers

have all been recognized as public officials who may avail

themselves of the defense of governmental immunity.” Id.

Governmental immunity applies to any “suit for torts

committed while the officers or employees are performing a

governmental function,” Willis v. Town of Beaufort, 544 S.E.2d

600, 605 (N.C. Ct. App. 2001) (quoting Morrison-Tiffin v. Hampton,

451 S.E.2d 650, 657 (N.C. Ct. App. 1995)), even intentional torts,

see Fuller v. Wake County, 802 S.E.2d 106, 111 (N.C. Ct. App.

2017). North Carolina courts have “long deemed the operation of

a county jail to be a governmental function.” Butterfield, 866

S.E.2d at 301.

To overcome a defense of governmental immunity, “[t]he

complaint must specifically allege a waiver of governmental

immunity.” Phillips v. Gray, 592 S.E.2d 229, 232 (N.C. Ct. App.

2004). Governmental immunity may be waived “when a county

purchases liability insurance which provides coverage to a

sheriff,” Polk v. Stanly County, No. 22CV613, 2024 WL 1287372, at

*12 (M.D.N.C. Feb. 23, 2024) (quoting White v. Cochran, 748 S.E.2d

334, 340 (N.C. Ct. App. 2013)), or when a sheriff’s bond is

purchased pursuant to North Carolina General Statute § 58-76-5,

id. (quoting Efird v. Riley, 342 F. Supp. 2d 413, 425 (M.D.N.C.

2004)). In case of a sheriff’s bond, the bond “surety . . . is a

necessary party to proceedings against the sheriff and sheriff’s

deputies in their official capacities.” Moore v. Barnes, 802 F.

Supp. 3d 792, 854 (E.D.N.C. 2025).

Here, as Defendants note, Polk alleges that his injury

occurred when Sergeant Clark handcuffed him to move him out of his

cell at Durham County Detention Center. (Doc. 2 at 7-9.) In other

words, Sergeant Clark’s actions were part of the operation of the

county jail, a clear governmental function. And as Defendants

correctly argue, Polk has failed to allege the waiver of

governmental immunity or to name the bond surety as a party to

this action. The court will therefore grant Defendants’ motion to

dismiss Polk’s tort claims against the remaining Defendants in

their official capacities.

J. Tort Claims Against Defendants in Their Individual

Capacities

Defendants next assert that Polk has not alleged any facts

that would demonstrate malice and thereby pierce the shield of

public official immunity for his state law tort claims. (Doc. 11

at 19-20.) Polk counters by referencing his previous argument

against qualified immunity and the dismissal of his individual

capacity § 1983 claims. (Doc. 18 at 3-5.)

“In general, public officials are immune from personal

liability in tort when ‘engaged in the performance of governmental

duties involving the exercise of judgment and discretion.’” Hwang

v. Cairns, 915 S.E.2d 425, 429 (N.C. 2025) (quoting Smith v.

Hefner, 68 S.E.2d 783, 787 (N.C. 1952)). Only public “officials”

– not public “employees” – are eligible for this form of immunity.

See id. at 429-30. North Carolina courts have held that sheriffs

and jailers are public officials. See Lee v. County of Cumberland,

No. COA17-446, 2018 WL 710085, at *8 n.4 (N.C. Ct. App. Feb. 6,

2018); Baker v. Smith, 737 S.E.2d 144, 151-52 (N.C. Ct. App. 2012).

Public official immunity does not apply, however, to “actions

performed outside of the scope of official duties or those done

with malice or corruption.” Hwang, 915 S.E.2d at 429. “[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.’”

Bartley v. City of High Point, 873 S.E.2d 525, 534 (N.C. 2022)

(quoting Wilcox v. City of Asheville, 730 S.E.2d 226, 230 (N.C.

Ct. App. 2012)). “An act is wanton when it is done of wicked

purpose or when done needlessly, manifesting a reckless

indifference to the rights of others.” Id. (quoting Yancey v.

Lea, 550 S.E.2d 155, 157 (N.C. 2001)). Further, in the context of

intentional torts, “wanton and reckless behavior may be equated

with an intentional act.” Id.

In Bartley, the Supreme Court of North Carolina held that

excessively tight handcuffs – which created red marks and bruises

on an arrestee’s wrist – were evidence of malice, where the

arrestee was not resisting and the officer refused to loosen the

handcuffs. See Bartley, 873 S.E.2d at 535. Similarly, Polk here

alleges that Sergeant Clark acted “knowingly, willfully, and

intentionally,” that Sergeant Clark refused to loosen the

handcuffs despite Polk’s repeated complaints, that Polk had not

been resisting, and that Polk ultimately suffered serious injuries

from the incident. (Doc. 2 at 7-9, 15, 24.) These allegations

are similar enough to the evidence of malice described in Bartley

to pierce public official immunity for Sergeant Clark as to Polk’s

assault, battery, and gross negligence claims.

The remaining tort claims, however, are a different story.

First, as to all negligence and negligent infliction of emotional

distress claims, public official immunity “shields public

officials from personal liability for claims arising from

discretionary acts or acts constituting mere negligence, by virtue

of their office, and within the scope of their governmental

duties.” Bartley, 873 S.E.2d at 533. Moreover, North Carolina

law contains no clear authority for bystander liability for tort

claims, even when the intentionality of the injury pierces public

official immunity for the primary tortfeasor. See Santiago v.

McClaskey, No. 12CV93, 2014 WL 944723, at *8 (M.D.N.C. Mar. 11,

2014), aff’d per curiam sub nom., Garcia v. McClaskey, 693 F. App’x

236 (4th Cir. 2017). Polk’s claims for negligence and negligent

infliction of emotional distress will therefore be dismissed.

Second, Polk has not stated a claim for negligent hiring or

training against Sheriff Birkhead. Pursuant to North Carolina

law, a claim of negligent employment or training requires the

following:

(1) the specific negligent act on which the claim is

founded . . . (2) incompetency, by inherent unfitness or

previous specific acts of negligence, from which

incompetency may be inferred; and (3) either actual

notice to the [employer] of such unfitness or bad habits,

or constructive notice, by showing that the [employer]

could have known the facts had he used ordinary care in

oversight and supervision . . . ; and (4) that the

injury complained of resulted from the incompetency

proved.

Nance v. Rowan-Salisbury Bd. of Educ., 336 F. Supp. 3d 593, 597

(M.D.N.C. 2018) (alterations in original) (quoting Cloaninger v.

McDevitt, 555 F.3d 324, 337 (4th Cir. 2009)).

Here, Defendants argue, and the court agrees, that Polk has

made only conclusory allegations regarding Sheriff Birkhead’s

knowledge of and causal relationship to Sergeant Clark’s injurious

conduct. (See Doc. 2 at 21-22.) Polk has therefore failed to

state any tort claims against Sheriff Birkhead in his individual

capacity, and those claims against him will be dismissed.

K. Statute of Limitations

Finally, Defendants argue that Polk’s claims are barred by

the statute of limitations. (Doc. 11 at 21.) Polk contends his

complaint was timely. (Doc. 18 at 5-6.)

In cases brought pursuant to § 1983, courts “apply the statute

of limitations for personal injuries of the state in which the

alleged violations occurred.” DePaola v. Clarke, 884 F.3d 481,

486 (4th Cir. 2018). Thus, Ҥ 1983 claims arising in North

Carolina are limited by ‘the three-year period for personal injury

actions set forth in [N.C. Gen. Stat.] § 1-52(5).’” Tommy Davis

Constr., Inc. v. Cape Fear Pub. Util. Auth., 807 F.3d 62, 67 (4th

Cir. 2015) (quoting Nat’l Advert. Co. v. City of Raleigh, 947 F.2d

1158, 1162 n.2 (4th Cir. 1991)). Generally, prisoners are not

barred by the statute of limitations so long as they deliver their

complaint to the prison authorities for mailing to the clerk of

the district court before the three-year deadline has passed.7 See

Lewis v. Richmond City Police Dep’t, 947 F.2d 733, 734-36 (4th

Cir. 1991) (per curiam); LaKemper v. Huneycutt, No. 24-CV-00118,

2026 WL 19419, at *1 n.2 (W.D.N.C. Jan. 2, 2026).

Here, Polk alleges he was injured by Defendants on August 30,

2021, making his statutory deadline August 30, 2024. (Doc. 2 at

7 There is a complication for state law claims: “if state law requires

a plaintiff to serve process ‘before the statute of limitations has run,’

a federal court must enforce the same requirement.” Allen v. Atlas Box

& Crating Co., 59 F.4th 145, 148 n.2 (4th Cir. 2023) (quoting Henderson

v. United States, 517 U.S. 654, 657 n.2 (1996)). However, North Carolina

appears to require service before the statute of limitations deadline

only for certain automobile-related personal injury claims, not tort

claims of the type Polk brings here. See Dean v. Rousseau, 874 S.E.2d

613, 616 (N.C. Ct. App. 2022) (holding that service was required before

statute of limitations ran in automobile-related personal injury claim

while noting that this requirement does not exist for “other civil

matters”).

6.) His complaint is signed on August 29, 2024 (Doc. 1 at 30),

and it would be deemed timely filed if delivered to the jailer for

mailing by the deadline. Polk claims he mailed his complaint “days

before” this deadline. (Doc. 18 at 5.) Though this seems somewhat

inconsistent with the date of the document, it does not rule out

the possibility of a timely filing. Thus, Defendants fail to

establish that the face of the complaint demonstrates that it is

untimely. See Dickinson v. Univ. of N.C., 91 F. Supp. 3d 755, 763

(M.D.N.C. 2015) (“To succeed on a statute-of-limitations defense

at th[e 12(b)(6)] stage, all facts necessary to show the time bar

must clearly appear ‘on the face of the complaint.’” (quoting

Goodman v. Praxair, Inc., 494 F.3d 458, 464 (4th Cir. 2007))).

Defendants’ motion to dismiss on this ground will therefore be

denied.

III. CONCLUSION

For the reasons stated,

IT IS THEREFORE ORDERED that Defendant Byrd’s motion to

dismiss (Doc. 19) is GRANTED, and Plaintiff Polk’s claims against

Nurse Byrd are DISMISSED.

IT IS FURTHER ORDERED that all of Polk’s claims against

Defendants S. Williams, Durham County, and Durham County Detention

Center are DISMISSED WITHOUT PREJUDICE for insufficient service of

process pursuant to Rule 4(m) of the Federal Rules of Civil

Procedure.

IT IS FURTHER ORDERED that Defendants Clark, Bradsher, and

Birkhead’s motion to dismiss (Doc. 10) is GRANTED as follows:

1. As to all claims against Defendants Bacon and Birkhead;

and those claims are DISMISSED.

2. As to all claims against Defendants Clark, Bradsher, J.

Williams, Sumpter, and Davis in their official

capacities; and those claims are DISMISSED.

3. As to all state law tort claims against Defendants

Bradsher, J. Williams, Sumpter, and Davis in their

individual capacities; and those claims are DISMISSED.

In all other respects, the motion to dismiss is DENIED.

This leaves as the remaining claims: (1) an excessive force

claim against Sergeant Clark in his individual capacity pursuant

to the Fourteenth Amendment; (2) the same excessive force claim

against Sergeant Bradsher and Officers J. Williams, Davis, and

Sumpter in their individual capacities pursuant to a theory of

bystander liability; and (3) assault, battery, and gross

negligence claims against Sergeant Clark in his individual

capacity pursuant to North Carolina tort law.

/s/ Thomas D. Schroeder

United States District Judge

March 12, 2026