The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
LAURA SAAVEDRA FORERO, )
)
Plaintiff, )
)
v. ) 1:24cv930
)
UNIVERSITY OF NORTH CAROLINA AT )
CHAPEL HILL POLICE DEPARTMENT, et )
al., )
)
Defendants. )
ORDER
On March 13, 2026, the United States Magistrate Judge’s
Recommendation was filed and notice was served on the parties in
accordance with 28 U.S.C. § 636(b). (Docs. 31, 32.) Defendants
Jeffrey Davis, Matthew Dodson, Forrest Wade Humphrey, and
University of North Carolina at Chapel Hill Police Department filed
objections within the time limits prescribed by Section 636. (Doc.
33.)
The court has appropriately reviewed the portions of the
Magistrate Judge’s report to which objections were made and has
made a de novo determination in accord with the Magistrate Judge’s
report.
The court makes two observations in adopting the report.
First, Defendants object that Forero’s negligent infliction of
emotional distress claim should be dismissed on the ground that a
recent amendment to the North Carolina Tort Claims Act “gives the
Industrial Commission exclusive jurisdiction to determine whether
the Individual Defendants were negligent while acting within the
course and scope of their employment even when sued in their
individual capacities.” (Doc. 33 at 5.) Defendants, however,
point this court to no caselaw indicating that the amendment in
question has deprived this court of jurisdiction over Forero’s
claim. (See id.; Doc. 26 at 31.) Most courts have concluded, to
the contrary, that the statute does not preclude individual
capacity negligence claims in federal court. See Neal v. Carter,
No. 5:24-CT-3138-FL, 2026 WL 820852, at *5 & n.4 (E.D.N.C. Mar.
25, 2026) (citing Carias v. North Carolina Dep't of Pub. Safety,
No. 1:24-CV-765 (RDA/JLW), 2025 WL 2404530, at *8 (M.D.N.C. Aug.
19, 2025) (collecting cases)). In light of the lack of authority
cited by Defendants, the court will deny Defendants’ motion to
dismiss this claim without prejudice to their raising the issue at
a later stage of the litigation. Accord Neal, 2026 WL 820852, at
*5 (stating that “[a]t this preliminary stage, the court declines
to address this issue based on the conclusory argument offered by
defendant”).
Second, Defendants assert that qualified immunity applies to
Forero’s claim against Defendant Forrest Wade Humphrey related to
the breadth of the search warrant and to her claim against the
Individual Defendants for excessive force. (Doc. 33 at 3-4.)
Defendants assert in particular that Forero “failed to provide the
Court with any caselaw showing that any of the Individual
Defendants’ alleged wrongful actions . . . were violations of her
clearly established rights.” (Doc. 26 at 14.) Defendants fail to
acknowledge, however, that the Fourth Circuit applies a split
burden of proof for claims of qualified immunity. The plaintiff
bears the burden of showing a violation of their rights, while the
defendant bears the burden of proving that the right was not
clearly established. Stanton v. Elliott, 25 F.4th 227, 233 (4th
Cir 2022). Here, Forero has met her burden to allege violations
of her rights (Doc. 20 at 15-27); Defendants have failed to meet
their burden to show those rights were not clearly established
(Doc. 26 at 14-24).1 The court therefore adopts the Magistrate
Judge’s Recommendation.
IT IS THEREFORE ORDERED that the motion to dismiss (Doc. 25)
be granted in part and denied in part, in that the court dismisses
all the Second Amended Complaint’s claims against all Defendants,
except:
1) Forero’s Section 1983 claim for damages against Defendant
Humphrey in his individual capacity for obtaining an overbroad
1 Qualified immunity, under Section 1983, is distinct from North
Carolina’s public official immunity. Although qualified immunity “is a
purely objective analysis, North Carolina's public official immunity
doctrine ‘involves a determination of the subjective state of mind of
the governmental actor.’” Knibbs v. Momphard, 30 F.4th 200, 227 (4th
Cir. 2022) (quoting Andrews v. Crump, 547 S.E.2d 117, 123 (N.C. Ct. App.
2001)). Though the analyses are distinct, the court concludes, in
keeping with the Magistrate Judge’s Recommendation, that Forero has
sufficiently alleged facts to support her burden under both standards.
search warrant in violation of the Fourth Amendment;
2) Forero’s Section 1983 claim(s) for damages against
Individual Defendants in their individual capacities for using
excessive force during the service of the search warrant in
violation of the Fourth Amendment;
3) Forero’s North Carolina common law claims for damages
against Individual Defendants in their individual capacities for
battery and negligent infliction of emotional distress during the
service of the search warrant; and
4) Forero’s Americans with Disabilities and Rehabilitation
Act claims against Defendant UNC-CH for failing to reasonably
accommodate her disability during the service of the search warrant
(i.e., the Tackling Sub-Claim).
/s/ Thomas D. Schroeder
United States District Judge
March 31, 2026