Tillman

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF NORTH CAROLINA

NAYJA JOHNSON,

Plaintiff,

v. CIVIL ACTION NO. 3:24-cv-00334-TEJ

ERIC TILLMAN, et al.,

Defendants.

MEMORANDUM OPINION AND ORDER

Pending before the Court is a Motion to Dismiss filed by the United States of America (the

“United States” or “Government”). (ECF No. 33.) For the reasons discussed herein, the motion

is GRANTED IN PART and DENIED IN PART.

I. BACKGROUND

On March 23, 2021, Frankie Junior Jennings (“Jennings”) was fatally shot by Eric Tillman

(“Tillman”) of the United States Marshals Service (“USMS”). (ECF No. 1 at 1, ¶¶ 1, 3.) At the

time of the shooting, Tillman and other members Carolina Regional Fugitive Task Force

(“CRFTF”) were attempting to apprehend Jennings on outstanding arrest warrants. (Id. at ¶¶ 4–

6.) A detailed recitation of the factual background is provided in the Court’s previous

Memorandum Opinion and Order. (ECF No. 26.)

Plaintiff Nayja Johnson (“Plaintiff”) subsequently initiated this suit.1 (See generally ECF

No. 1.) The Complaint asserts three counts. Count One is a claim for Intentional Infliction of

1 The Complaint names Tillman as a defendant, but the Court later granted the Government’s motion to substitute the

United States as the sole defendant in place of Defendant Tillman. (ECF No. 26 at 3. n.2.)

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Emotional Distress (“IIED”). (Id. at 7–9.) Count Two is a claim for Negligent Infliction of

Emotional Distress (“NIED”).2 (Id. at 13–14.) Count Three is a claim under the North Carolina

State Constitution. (Id. at 14–15.) Plaintiff also seeks punitive damages. (Id. at 15.)

Count One for IIED is based, in part, on the Government’s “decision to include [her] as an

inevitable witness and a natural barrier as a part of the vehicle containment recklessly disregarding

the high probability that severe emotional distress would result.” (ECF No. 1 at 8, ¶ 61.)

Similarly, Count Two for NIED is based, in part, on the allegations that Plaintiff was (1) seized in

the vehicle containment and (2) “seized . . . and held against her will and handcuffed,”3 both of

which caused her “severe emotional distress.” (See id. at 11, ¶¶ 88, 92, 93; see also id. at 13–14,

¶ 111, 112). Count Two also states that the Government violated a USMS policy directive

prohibiting the use of deadly force “solely to prevent the escape of a fleeing suspect,” which caused

her “severe emotional distress.” (Id. at 12, ¶ 96; id., ¶ 112.)

The Government previously moved to dismiss Counts One and Two for, inter alia, lack of

subject matter jurisdiction, arguing that, under the discretionary function exception (“DFE”), the

Federal Torts Claims Act (“FTCA”) did not waive sovereign immunity for alleged torts that occur

when agents exercise discretion.4 (See ECF Nos. 9, 10.) The DFE retains the sovereign

2 Although Count Two is styled as alleging “negligence and gross negligence,” the thrust of Plaintiff’s allegation is

that the CRFTF’s actions caused her “severe emotional distress.” (ECF No. 1 at 13–14, ¶¶ 109–112, 114.) Such an

allegation is on all fours with a claim for NIED by virtue of standard negligence as well as gross negligence, see

Johnson v. Ruark Obstetrics & Gynecology Assocs., P.A., 395 S.E.2d 85, 97 (N.C. 1990), which is what Plaintiff

clarified she intended to plead, (see ECF No. 15 at 2, 8, 12).

3 Count One similarly claimed that Plaintiff was handcuffed and “taken to the ground.” (ECF No. 1 at 8–9, ¶¶ 67,

70.) However, Count One was dismissed to the extent it was based on Plaintiff being seized via handcuffs for failure

to state a claim. (ECF No. 26 at 17.)

4 The Government also moved to dismiss Count Three, (see ECF Nos. 9, 10), and Plaintiff conceded that cause of

action, (see ECF No. 26 at 3, n.3).

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immunity of the United States for “[a]ny claim . . . based upon the exercise or performance or the

failure to exercise or perform a discretionary function or duty on the part of a federal agency or an

employee of the Government, whether or not the discretion involved be abused.” 28 U.S.C. §

2680(a). If there is a statute, regulation, or policy that “proscrib[es] a specific course of action,”

the DFE cannot apply because the conduct “involves no legitimate element of judgment or choice

and the function in question cannot be said to be discretionary.” Baum v. United States, 986 F.2d

716, 720 (4th Cir. 1993). The Court granted the previous motion in part and dismissed portions

of Plaintiff’s claims on this basis. (See ECF No. 26.)

However, the Court also denied that motion in part. (See id.) Specifically, Plaintiff

argued that the DFE does not cover violations of the Fourth Amendment. (ECF No. 15 at 2, 6).

Even though the Complaint does not assert any constitutional cause of action, (see generally ECF

No. 1), Plaintiff later clarified that her state law claims are premised on alleged seizures in violation

of the Fourth Amendment, (see ECF No. 26 at 8). The Court found that Plaintiff’s allegations

stated plausible Fourth Amendment violations and that law enforcement action that offends the

Fourth Amendment is not protected by the DFE. (See id. at 14 (collecting cases).) Thus, both

Counts One and Two survived to the extent that they were premised on Plaintiff’s alleged unlawful

seizures. (Id.)

Plaintiff also argued that the United States violated the USMS policy directive that “deadly

force may not be used solely to prevent the escape of a fleeing suspect.” (ECF No. 1 at 12, ¶ 96.)

The Court found that Plaintiff’s allegations make it plausible that the Government violated the

USMS directive that “prohibits such action.” (ECF No. 26 at 12.) Thus, Count Two also

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survived to the extent that it was premised on the Government’s alleged use of deadly force solely

to prevent Jennings from fleeing. (Id.)

Ultimately, Count One survived only to the extent that it is premised on Plaintiff’s alleged

seizure via vehicle containment. Count Two survived to the extent that it is based on either of

Plaintiff’s alleged seizures and/or Tillman’s alleged violation of the USMS policy directive

prohibiting use of deadly force solely to prevent the escape of Jennings.

The United States then filed the pending Motion to Dismiss on November 19, 2025. (ECF

No. 33.) Plaintiff filed a response,5 (ECF No. 35), and the Government filed a reply, (ECF No.

36). As such, the motion is fully briefed and ripe for adjudication.

II. LEGAL STANDARD

It is axiomatic that a court must find it has jurisdiction before determining the validity of

any claims brought before it. Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir. 1999). “The

burden of showing the existence of subject matter jurisdiction rests on the plaintiff.” Adkins v.

United States, 923 F. Supp. 2d 853, 857 (S.D. W. Va. 2013) (citation omitted). “If the plaintiff

fails to meet this burden, then the claim must be dismissed.” Welch v. United States, 409 F.3d

646, 651 (4th Cir. 2005) (citing Medina v. United States, 259 F.3d 220, 223 (4th Cir. 2001)).

5 In her response, Plaintiff also “motions this Court to deny the Defendant’s Second Motion to Dismiss” and “further

requests an extension of the deadline to respond and reserves the right to supplement this motion and attached brief.”

(ECF No. 35 at 1.) Additionally, Plaintiff “requests this Court strike” certain arguments made by the Government.

(Id.) Lastly, “should any portion of the complaint be dismissed for a pleading insufficiency, [P]laintiff respectfully

requests leave to replead.” (ECF No. 35-1 at 7.) Plaintiff does not provide the legal standards or substantive

arguments for any of these “motions.” (See ECF Nos. 35 at 1; 35-1 at 7.) Nevertheless, because Plaintiff did not

file separate motions seeking such relief, as is required under the local rules, see L.R. Civ. P. 7.1(c)(2) (“Motions shall

not be included in responsive briefs. Each motion must be set forth as a separately filed pleading.”), her requests are

DENIED. Further, Plaintiff has no authority to “reserve the right” to supplement her arguments and, instead, must

move the Court for leave to file an additional brief. Cf. L.R. Civ. P. 7.1(e) (“Surreplies are neither anticipated nor

allowed by this Rule, but leave of Court may be sought to file a surreply when warranted.”).

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III. DISCUSSION

In the pending motion, the Government moves to dismiss Counts One and Two for lack of

subject matter jurisdiction because it is shielded by sovereign immunity.6 (ECF No. 34 at 8–18.)

“As a sovereign, the United States is immune from all suits against it absent an express waiver of

its immunity.” United States v. Sherwood, 312 U.S. 584, 586 (1941); see also F.D.I.C. v. Meyer,

510 U.S. 471, 475 (1994) (“Absent a waiver, sovereign immunity shields the Federal Government

and its agencies from suit.”). “[T]he terms of [the Government’s] consent to be sued in any court

define that court’s jurisdiction to entertain the suit.” Sherwood, 312 U.S. at 586–87 (citing

Minnesota v. United States, 305 U.S. 382, 388 (1988)). As such, courts strictly construe all

waivers of sovereign immunity “in favor of the sovereign.” Lane v. Pena, 518 U.S. 187, 192

(1996). Thus, “it is the plaintiff’s burden to show that an unequivocal waiver of sovereign

immunity exists and that none of the statute’s waiver exceptions apply to his particular claim,” and

if not, then the court must dismiss the plaintiff’s claims. Welch, 409 F.3d at 650–51 (citing

Williams v. United States, 50 F.3d 299, 304 (4th Cir. 1995) and Medina, 259 F.3d at 223).

The FTCA provides that district courts have “exclusive jurisdiction of civil actions on

claims against the United States, for money damages,” for injuries made “by the negligent or

wrongful act or omission of any employee of the Government . . . , under circumstances where the

United States, if acting as a private person, would be liable to the claimant in accordance with the

law of the place where the action or omission occurred.” 28 U.S.C. § 1346(b)(1). This language

6 The Government also moves to dismiss Count Two for failure to state a claim. (ECF No. 34 at 4–8.) However,

because the Court lacks subject matter jurisdiction over Count Two, as discussed below, it need not and cannot address

the merits of the Government’s Rule 12(b)(6) argument. See Shing v. MD Dev. Disabilities Admin., 698 Fed. App’x

70, 72 (4th Cir. 2017) (explaining that “a court that lacks jurisdiction has no power to adjudicate and dispose of a

claim on the merits”).

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“creates a limited waiver of the United States’ sovereign immunity by authorizing damages actions

for injuries caused by the tortious conduct of federal employees acting within the scope of their

employment, when a private person would be liable for such conduct under state law.” Suter v.

United States, 441 F.3d 306, 310 (4th Cir. 2006) (citing 28 U.S.C. § 1346(b)(1)). Therefore, the

FTCA “permits the United States to be held liable in tort in the same respect as a private person .

. . under the law of the place where the act occurred.” Medina, 259 F.3d at 223 (citing Harris v.

United States, 718 F.2d 654, 656 (4th Cir. 1983)). The plaintiff bears the burden of showing that

the United States has waived its sovereign immunity. See Williams, 50 F.3d at 304.

Here, the Government argues that neither of Plaintiff’s remaining claims assert liability

under an analogous state law.7 (ECF No. 34 at 8–18.) In response, Plaintiff merely asserts that

“[t]he analogous state torts are still negligent infliction of emotional distress and intentional

infliction of emotional distress.” (ECF No. 35-1 at 4.) Each cause of action is discussed in turn

below.

A. NIED

Under North Carolina law, an NIED claim has three elements: (1) the defendant negligently

engaged in conduct; (2) it was reasonably foreseeable that this conduct would cause severe

emotional distress; and (3) the conduct did, in fact, cause severe emotional distress. Johnson v.

Ruark Obstetrics & Gynecology Assocs., P.A., 395 S.E.2d 85, 97 (N.C. 1990). As the first

element above suggests, the Plaintiff must also establish all of the elements of negligence to satisfy

the first element of an NIED claim. See Thomas v. Weddle, 605 S.E.2d 244, 249 (N.C. Ct. App.

7 Because the Government’s alleged tortious acts occurred in North Carolina, the Court applies North Carolina

substantive law. United States v. Neustadt, 366 U.S. 696, 706 n.15 (1961); Meyer, 510 U.S. at 478 (1994) (“[W]e

have consistently held that § 1346(b)’s reference to the ‘law of the place’ means law of the State — the source of

substantive liability under the FTCA.”).

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2004) (“A claim for negligent infliction of emotional distress also depends upon evidence that the

defendants acted negligently.”); see also Demarco v. Charlotte-Mecklenburg Hosp. Auth., 836

S.E.2d 322, 328 (N.C. App. 2019) (finding that when a “plaintiff has pleaded a viable claim for

negligence arising from the same facts, we need only consider whether her complaint adequately

pleads damages in the form of “severe emotional distress”).

Here, Plaintiff’s NIED claim is premised on alleged violations of the Fourth Amendment

and a USMS policy directive, as discussed above. Thus, the Court previously found that Count

Two sounded in negligence per se, which requires, inter alia, that the defendant breached “a duty

created by a statute or ordinance.” (ECF No. 26 at 19–20 (internal citations omitted).)

The issue is that the FTCA only “permits the United States to be held liable in tort in the

same respect as a private person . . . under the law of the place where the act occurred.” Medina,

259 F.3d at 223 (citing Harris, 718 F.2d at 656). Put another way, the statute only confers

jurisdiction “when [an] alleged breach of duty is tortious under state law, or when the Government

has breached a duty under federal law that is analogous to a duty of care recognized by state law.”

Goldstar (Panama) S.A. v. United States, 967 F.2d 965, 969 (4th Cir. 1992). As such, “the mere

allegation of a breach of duty under Federal law does not, by itself, state a valid tort claim against

the Government” that would convey jurisdiction under the FTCA. Id.

In that regard, Count Two “rests on a tower of supposition.” (ECF No. 34 at 12.)

Plaintiff’s NIED claim requires a showing of negligence. For her negligence theory, Plaintiff

alleges breaches of federal law duties.8 In order for the Court to have jurisdiction under the

8 Plaintiff seemingly insists that she is pursuing a “common law tort claim.” (ECF No. 35-1 at 4.) This runs

headfirst into the fact that, at the motions hearing held on November 14, 2024, Plaintiff made clear that her state law

claims are premised on alleged Fourth Amendment violations. (See also ECF No. 15 at 2, 6 (arguing that the DFE

does not cover violations of the Fourth Amendment).) Additionally, the Government’s first motion to dismiss argued

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FTCA, there has to be a recognized duty of care under North Carolina law that is analogous to the

Government’s alleged breaches of federal law duties. See also Doe v. United States, 381 F. Supp.

3d 573, 605 (M.D.N.C. 2019) (explaining that, in the FTCA context, “the negligence per se claim

must be cognizable under the state’s negligence per se law”). In short, in order for Plaintiff’s

NIED claim to prevail, the Government’s alleged violations of the Fourth Amendment and/or the

USMS policy directive would also have to be a breach of duty under North Carolina law.

However, even though Plaintiff bears the burden of showing that the United States has

waived its sovereign immunity under the FTCA, Williams, 50 F.3d at 304, she offers absolutely

no potential state law analogs, (see generally ECF No. 35-1).9 In doing so, she has failed to meet

her burden of showing that this Court has subject matter jurisdiction over her NIED claim, and

Count Two must be dismissed. Welch, 409 F.3d at 650–51. To be sure, though, the Government

argues that there is no liability under any state law analog. (See ECF No. 8 at 15.) Each of the

Government’s proffered potential analogs are briefly discussed in turn below.

i. USMS Policy Directive

To start, the Government suggests that “portions of the North Carolina statute pertaining

to the use of deadly force for a fleeing suspect are the closest arguable state analog to the above-

that Plaintiff failed to plausibly state a common law duty or breach, (see ECF No. 10 at 14), and Plaintiff failed to

substantively respond to this argument, (see ECF No. 15 at 13 (merely invoking the “common law understanding of

duty and breach”)). By failing to respond to this argument, Plaintiff thereby conceded the issue. See Fields v. King,

576 F. Supp. 3d 392, 408 (S.D. W. Va. 2021). Thus, the Court’s prior finding that Plaintiff’s claim sounded in

negligence per se, (ECF No. 26 at 19–20), is the only theory in which Count Two survived the Government’s first

motion to dismiss. If Plaintiff disagreed with the Court’s finding that she was asserting a negligence per se claim,

she should have made an appropriate motion under the Federal Rules of Civil Procedure. See Fed. R. Civ. P. 7(b)

(“A request for a court order must be made by motion.”). However, she cannot simply ignore the Court’s finding at

this juncture.

9 In fact, Plaintiff’s response is largely unresponsive to the Government’s arguments. (See generally ECF No. 35-

1.)

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referenced USMS policy.” (ECF No. 34 at 9.) North Carolina General Statute § 15A-401(d)(2)

“sets forth the situations in which a police officer may use deadly force without fear of incurring

criminal or civil liability.” Lee v. Town of Seaboard, 863 F.3d 323, 327 (4th Cir. 2017) (internal

quotations and citations omitted). Section 15A–401(d) states, in pertinent part, as follows:

[A] law-enforcement officer is justified in using deadly physical force upon another person

. . . only when it is or appears to be reasonably necessary . . .

b. [t]o effect an arrest or to prevent the escape from custody of a person who he

reasonably believes is attempting to escape by means of a deadly weapon, or who

by his conduct or any other means indicates that he presents an imminent threat of

death or serious physical injury to others unless apprehended without delay; or

c. [t]o prevent the escape of a person from custody imposed upon him as a result of

conviction for a felony.

N.C. Gen. Stat. § 15A–401(d)(2)(b),(c) (emphasis added).

Here, the United States claims it would not be liable under this statute. (See ECF No. 34

at 10.) The Government reasons that “Plaintiff’s allegations, taken as true, undisputably

demonstrate an officer would have concluded that deadly force was (or, at a minimum, appeared

to be) reasonably necessary.” (Id. at 10–11 (providing allegations from the Complaint verbatim).)

In particular, the Government recalls that Jennings “reached toward a gun in his vehicle’s

cupholder,” which “occurred while he actively engaged in a physical struggle with two CRFTF

members.” (Id. at 11.) The Government also believes that the North Carolina public official

immunity would apply if it stood in the shoes of a private individual. (See id.; see also ECF No.

26 at 14, n.9 (“Under North Carolina law, a public official, engaged in the performance of

governmental duties involving the exercise of judgment and discretion, may not be held personally

liable for mere negligence in respect thereto.” (internal quotations and citations omitted).)

9

Conversely, Plaintiff states, without any explanation, that the Government’s assertion that

§ 15A-401(d)(2) is an analog to the USMS policy is “misplaced.”10 (See ECF No. 35-1 at 5.)

Plaintiff also contends that a “car is not inherently a deadly weapon,” (id. at 6), but fails to address

the fact that “North Carolina courts have held that a car may be deemed a ‘deadly weapon’ when

the manner of its use by [the] defendant clearly put the officers in danger of death or great bodily

harm,” see Lee, 863 F.3d at 330 (internal quotations and citations omitted; collecting cases).

Further, Plaintiff concedes that “a firearm or similar weapon . . . is inherently deadly and

dangerous.” (ECF No. 35-1 at 6.)

Assuming without deciding that § 15A-401(d) is an appropriate analog, the Court agrees

with the Government’s thorough analysis. (ECF No. 34 at 9–12.) At the very least, Plaintiff has

not met her burden of showing that the Government would be plausibly liable for the alleged

conduct under §15A-401(d). Therefore, the Government’s Motion to Dismiss is GRANTED

under Rule 12(b)(1) to the extent that Count Two is premised on an alleged violation of USMS

policy.

10 This assertion is curious, as Plaintiff needs a state law analog in order for her claim to prevail. Further, Plaintiff is

likely incorrect. The Court “determine[s] the Government’s liability ‘in accordance with the law of the place where

the [negligent] act or omission occurred.’” Robertson v. United States, 144 F.4th 610, 614 (4th Cir. 2025) (internal

citations omitted). “If that private party in like circumstances could not be held liable, then the United States has not

waived its sovereign immunity.” Id. (internal citations omitted). “‘Like circumstances’ should not be construed so

narrowly that no private comparator exists.” Id. (citing United States v. Olson, 546 U.S. 43, 45–47 (2005)). “Rather,

because the words ‘like circumstances’ do not restrict a court’s inquiry to the same circumstances, courts must look

further afield to find a private individual under similar circumstances.” Id. (internal quotations and citations omitted);

see also Indian Towing, 350 U.S. at 64–68 (interpreting “like circumstances” for Coast Guard’s operation of lighthouse

to mean those “who undertake[ ] to warn the public of danger and thereby induce[ ] reliance”). Here, Section 15A-

401(d)(2) is likely an appropriate analog to the USMS policy at issue.

10

ii. Fourth Amendment

The Government next suggests that state law analogs to the alleged Fourth Amendment

violations11 based upon unreasonable seizures are likely found in North Carolina Constitution and

North Carolina General Statute § 15A-401(b). (See ECF No. 34 at 13–15.) The North Carolina

Constitution prohibits unreasonable seizures, see N.C. Const. art. I, § 20, and §15A-401(b)

provides a statutory basis for making an arrest without a warrant, see N.C. Gen. Stat. § 15A-401(b).

However, the Government argues that, even if Plaintiff stated a plausible claim under the North

Carolina Constitution, it would not be liable. (ECF No. 34 at 14.)

Of relevance,12 “under North Carolina law, a plaintiff may not assert a direct claim under

the North Carolina Constitution if the plaintiff has an ‘adequate state remedy’ at common law or

11 To be sure, the Fourth Amendment does not impose a specific duty that can serve as a foundation for a negligence

per se claim. (Cf. ECF No. 26 at 20 (explaining that, to prevail on a negligence per se claim under North Carolina

law, Plaintiff would have to show, inter alia, a violation of a public safety statute or ordinance, which ‘impos[es] upon

[the defendant] a specific duty for the protection of others’” (quoting Lutz Indus., Inc. v. Dixie Home Stores, 88 S.E.2d

333, 339 (N.C. 1955)).) The Fourth Amendment merely confers “[t]he right of the people to be secure in their persons

. . . against unreasonable searches and seizures. . . .” U.S. Const. amend. IV; accord Handy v. Luenza, No. 16-CV-

02110-WYD-MEH, 2017 WL 1407042, at *7 (D. Colo. Apr. 17, 2017) (reasoning that the Amendments to the

Constitution cannot form the basis of a negligence per se claim because they “confer certain rights and obligations on

certain individuals” and were not enacted to protect the public from harm); accord Brantley v. Muscogee Cnty. Sch.

Dist., No. 4:10-CV-77 CDL, 2011 WL 3706567, at *6 (M.D. Ga. Aug. 24, 2011) (holding that a negligence per se

claim cannot be based on an alleged violation of the Georgia Constitution because, “[a]lthough the Georgia

Constitution may provide Plaintiffs with various rights and protections,” it does not impose a legal duty). While

Plaintiff appears to argue that the standard for Fourth Amendment violations is set forth in the Supreme Court’s

decision in in Graham v. Connor, 490 U.S. 386, 395 (1989), (see ECF No. 35-1 at 2), that is distinct from arguing that

the Fourth Amendment itself imposes a specific duty.

As such, it is quite an imbroglio to decipher a state law analog to an alleged federal law duty that does not exist.

Nevertheless, because the Court must first determine that it has jurisdiction before it can adjudicate the substance of

the claims, it proceeds as if the Fourth Amendment does impose a duty on law enforcement officers.

12 Among other arguments, the Government claims that “[b]y conceding her state constitutional claims . . . Plaintiff

has acknowledged that there is no liability under any state law analog to a Fourth Amendment violation.” (ECF No.

34 at 14.) The Court does not necessarily agree that a plaintiff’s failure to respond to an argument in a motion to

dismiss, which is an inherent concession of the issue, means that there is no potential liability under the later dismissed

cause of action. Sometimes, it is simply a reflection of poor lawyering. Nevertheless, because there is an adequate

state law remedy, discussed below, it need not resolve the Government’s argument regarding Plaintiff’s conceded

state constitution claims.

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under state statute.” Locklear v. Town of Pembroke, N.C., 531 F. App’x 379, 382 (4th Cir. 2013)

(citing Copper ex rel. Copper v. Denlinger, 688 S.E.2d 426, 429 (N.C. 2010) and Corum v. Univ.

of N.C. Through Bd. of Govs., 413 S.E.2d 276, 289 (N.C. 1992)). The determination of the

adequacy of the state remedy is not dependent on the success of the plaintiff’s claim. DeBaun v.

Kuszaj, 749 S.E.2d 110 (N.C. App. 2013). Thus, a remedy may be “adequate” even if it is barred

by an immunity doctrine. See Rousselo v. Starling, 495 S.E.2d 725, 731 (N.C. App. 1998)

(rejecting a plaintiff’s argument that “there is no adequate state law remedy” because “common

law immunity would defeat any common law tort claim that he brought against the State,” by

reasoning that “the existence of an adequate alternate remedy is premised on whether there is a

remedy available to plaintiff for the violation, not on whether there is a right to obtain that

remedy”).

In this case, the Government states that “Plaintiff’s adequate remedies include her IIED

and NIED claims, regardless of whether they are dismissed” for lack of subject matter jurisdiction.

(See ECF No. 34 at 14–15.) Plaintiff does not rebut this argument, (see generally ECF No. 35-

1), and thereby concedes the issue, see Fields, 576 F. Supp. 3d at 408. The Court also notes that

the existence of the common law tort of false imprisonment forecloses a direct constitutional claim

based on the present facts. See, e.g., Alt v. Parker, 435 S.E.2d 773, 779 (N.C. App. 1993), cert.

denied, 442 S.E.2d 507 (N.C. 1994) (rejecting a direct state constitutional claim because the

plaintiff’s interest in being free from restraint was protected by common law claim for false

imprisonment). Thus, the Government cannot be held directly liable under the North Carolina

Constitution in this case.

12

Accordingly, because Plaintiff failed to meet her burden of showing plausible liability

under any state law analog, see Williams, 50 F.3d at 304, the Government’s Motion to Dismiss

under Rule 12(b)(1) is GRANTED to the extent that Count Two is premised on the alleged

unlawful seizures.

B. IIED

Next, the Government appears to argue that Plaintiff’s state law claim for IIED must also

be dismissed because there is no liability under an analogous state law. (ECF No. 34 at 12.)

Specifically, the Government argues that Plaintiff cannot bring an FTCA claim based solely on a

federal constitutional violation, (id.), and “[t]he core of her claims arises from . . . federal

constitutional torts, regardless of how many state torts Plaintiff attempts to layer around it,” (id. at

6). The Court does not agree.

North Carolina law recognizes a cause of action for IIED. See Dickens v. Puryear, 276

S.E.2d 325, 332 (N.C. 1981). Unlike the “tower of suppositions” looming over Plaintiff’s NIED

claim, her IIED claim does not require a showing of negligence, which ultimately required an

analogous duty of care under North Carolina law, as discussed supra. Thus, Plaintiff’s IIED claim

satisfies the provision of the FTCA limiting liability to “circumstances where the United States, if

a private person, would be liable to the claimant in accordance with the law of the place where the

act or omission occurred.” 28 U.S.C. § 1346(b); see also Lovo v. United States, No. 1:22CV1008,

2024 WL 1349516, at *7 (M.D.N.C. Mar. 29, 2024) (addressing the merits of an IIED claim

brought under the FTCA); Murphy v. United States, No. 5:18-CT-03058-BO, 2020 WL 578941,

at *5 (E.D.N.C. Feb. 5, 2020) (recognizing that the FTCA does not bar IIED claims).

13

The Government’s theory that Plaintiff’s IIED claim is truly a federal constitution tort

masked in a state law tort claim is not persuasive, either. The Court and the Government have

recognized, multiple times, that Plaintiff did not assert any federal constitutional claims in her

Complaint. (See, e.g., ECF No. 26 at 8; ECF No. 16 at 2 (“[N]either Bivens nor any alleged

violations of the U.S. Constitution are pleaded (or mentioned) in the Complaint.”)). Rather,

Count One is clearly labeled as a claim for IIED. (See ECF No. 1 at 7–9.) The Court previously

held that Plaintiff plausibly pleaded a claim for IIED based on her alleged seizure via vehicle

containment. (ECF No. 26 at 15–18.) The only reason a constitutional violation entered the

discussion is because the Government moved to dismiss under the DFE, (ECF No. 9), and Plaintiff

had to meet her burden of proving that the DFE does not apply, see Indem. Ins. Co. of N. Am. v.

United States, 569 F.3d 175, 180 (4th Cir. 2009). To do so, she argued that the underlying conduct

of Count One violated, inter alia, the United States Constitution. (ECF No. 15 at 2, 6). Such a

defensive argument does not mechanically amend her state law claims into federal constitutional

claims.

Accordingly, the Government’s motion is DENIED insofar as it argues that the Court lacks

jurisdiction over Count One.

IV. CONCLUSION

For these reasons, the Government’s Motion to Dismiss, (ECF No. 33), is GRANTED IN

PART and DENIED IN PART. The Government’s motion under Rule 12(b)(1) is GRANTED

as to Count Two but DENIED as to Count One. Additionally, the Government’s motion under

Rule 12(b)(6) is DENIED AS MOOT. Further, any motions embedded in Plaintiff’s response

are DENIED.

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IT IS SO ORDERED.

The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and any

unrepresented party.

ENTER: May 21, 2026

THOMAS B. f—

UNITED STATES DISTRICT JUDGE

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