# Holland

> District Court, E.D. North Carolina · March 31, 2026

URL: https://www.frixlaw.com/law-library/cases/11336747

## Case

- **Full name:** William H. Holland, et al. v. New Hanover County, et al.
- **Court:** District Court, E.D. North Carolina
- **Decided:** March 31, 2026
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
SOUTHERN DIVISION
No. 7:25-CV-417-BO-KS
WILLIAM H. HOLLAND, et al., )
Plaintiffs,
V. ORDER
NEW HANOVER COUNTY, et al.,
Defendants.
This cause comes before the Court on the memorandum and recommendation (M&R) of
United States Magistrate Judge Kimberly A. Swank. [DE 65]. Defendants each moved to dismiss.
[DE 49]; [DE 51]; [DE 54]. The M&R recommended that the motions be granted in part and denied
in part. [DE 65, p. 2]. Plaintiffs filed an objection [DE 66] and defendants responded [DE 67]; [DE
68]; [DE 69]. A hearing was held before the undersigned on March 12, 2026 in Raleigh, North
Carolina. In this posture, the matter is ripe for disposition. For the following reasons, the M&R is
adopted in part and rejected in part.
BACKGROUND
The following factual recitation is drawn from the plaintiffs’ amended complaint [DE 1-3];
[DE 1-4]. The Hollands, plaintiffs, are a family of five. William and Kathleen Holland are the
natural parents of two minor children, J.D.H. and J.R.H. Their third and youngest child, J.H.H., is
adopted. [DE 1-3, p. 66, § 2]. On June 29, 2022, the adoption agency informed the Hollands that
J.H.H.’s birth mother had selected the Hollands as an adoptive family. [DE 1-4, { 37]. During the
pregnancy, the birth mother drank alcohol, smoked cigarettes, and took Adderall and blood
pressure medication. She also declined medical care after being involved in a traffic accident late
in the pregnancy. /d. at 39-40. The Hollands knew when they adopted him that J.H.H. would

likely have special medical needs. Jd. at § 41. J.H.H. tested positive for controlled substances at
birth. /d. at § 44.
After he was born, J.H.H. went home from the hospital with the Hollands. /d. at § 42. The
adoption agency retained legal custody pending the adoption decree, but the Hollands had physical
custody, financial responsibility, and medical decision-making authority. /d. at | 43. Within a
couple months, J.H.H. fell sick and the Hollands took him to a doctor. Jd. at § 49. After observing
that J.H.H.’s head was bulging and he had “sunsetting eyes,” the doctor sent him for a CT scan
which revealed a subdural hematoma. /d. at 53-57. J.H.H. underwent preventive surgery to
account for the possibility of later-developing brain swelling. /d. at {| 60-61. The neurosurgeon
who performed the surgery informed the Hollands that it is standard protocol to refer unexplained
subdural hematomas to the Child Abuse Clinic for further evaluation, because subdural hematomas
are signs of possible child abuse. /d. at 62. The clinic then made a report to New Hanover County
Department of Social Services (DSS) regarding J.H.H., and the Hollands found themselves under
investigation. /d. at §§] 63-67.
Defendant Mona Leipold, an attorney with the DSS, filed a petition in New Hanover
County Juvenile Court alleging dependency, abuse, and neglect as to the Hollands’ three children
and requesting emergency nonsecure custody of J.H.H. /d. at { 81. On October 10, 2022, DSS
informed the Hollands of the petition, took custody of J.H.H., and told the Hollands to leave the
hospital immediately. /d. at { 94. Coordinating with the New Hanover County DSS, the Orange
County Department of Social Services proposed a voluntary “safety plan” requiring the children
to live with Kathleen Holland’s parents (the maternal grandparents) and prohibiting William and
Kathleen Holland from interacting with the children unsupervised. /d. at §] 68-69. New Hanover
County DSS did not take custody of the Hollands’ biological children, J.D.H. and J.RH., but

“pressured the Hollands to continue the Safety Plan via threats communicated by Leipold to file
for nonsecure custody of J.D.H. and J.R.H.” /d. at § 98. Defendant Tonya Jackson, Director of
New Hanover County DSS, delivered a document to UNC Medical Center authorizing foster
parents to consent to medical treatment of J.H.H., but mischaracterized his medical needs. /d. at
96-97.
Even as doctors began to issue exculpatory medical opinions, Leipold and DSS continued
to prosecute the case against the Hollands. Intending to impede the Hollands’ ability to finalize
J.H.H.’s adoption, DSS placed the Hollands on the “responsible individuals list,” which is a “child
abuse registry” that identifies individuals deemed responsible in substantiated cases of abuse or
serious neglect. /d. at §§ 187, 189. Following a hearing, on April 11, 2023, the state Juvenile Court
found DSS failed to meet its burden of proof and dismissed the petition against the Hollands. /d.
at {23 1-32. No medical evidence ever emerged that the Hollands had abused any of the children.
Plaintiffs initiated this action in North Carolina state court and filed an amended complaint
there. Defendant New Hanover County removed the case to this Court based on federal question
jurisdiction. [DE 1]. Defendants moved separately to dismiss the claims asserted against them.
[DE 49]; [DE 51]; [DE 54]. Plaintiffs voluntarily dismissed certain parties and claims. The
remaining defendants include Tonya Jackson (director of New Hanover County DSS), Donna
Fayko (Health and Human Services Director of New Hanover County), and Mary Beth Rubright
(assistant director of social work for New Hanover County DSS).
The following claims remain pending against the following defendants in their individual
capacities: (1) negligence against defendant Leipold, (2) negligence against defendants Jackson,
Fayko, and Rubright, (3) gross negligence against defendants Leipold, Jackson, Fayko, and
Rubright, (4) negligent supervision against defendants Jackson, Fayko, and Rubright, (5) gross

negligent supervision against defendants Jackson, Fayko, and Rubright, (6) deprivation of First,
Fourth, and Fourteenth Amendment rights under 42 U.S.C. § 1983 against defendants Jackson,
Fayko, Rubright, and Leipold, (7) deprivation of due process under § 1983 and Monell against
defendant New Hanover County, (8) violation of equal protection under § 1983 against defendant
New Hanover County and defendants Jackson, Fayko, Rubright, and Leipold, (9) state-based civil
conspiracy against defendant New Hanover County and defendants Jackson, Fayko, Rubright, and
Leipold, and (10) intentional infliction of emotional distress (IIED) against defendant New
Hanover County and defendants Jackson, Fayko, Rubright, and Leipold.
Magistrate Judge Swank recommended dismissal of all claims against defendant Leipold
on the basis of prosecutorial immunity, the state law claims against New Hanover County based
on governmental immunity, the First and Fourth Amendment claims and procedural due process
claim against all defendants, the equal protection claim against all defendants, and the civil
conspiracy claim against all defendants.
DISCUSSION
“The Federal Magistrates Act requires a district court to make a de novo determination of
those portions of the magistrate judge’s report or specified proposed findings or recommendations
to which objection is made.” Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th
Cir. 2005) (cleaned up) (emphasis omitted); see also 28 U.S.C. § 63€(b)(1); Fed. R. Civ. P.
72(b)(3). A party’s objections must be made “with sufficient specificity so as reasonably to alert
the district court of the true ground for the objection.” United States v. Midgette, 478 F.3d 616, 622
(4th Cir. 2007). “‘[W]hen reviewing pro se objections to a magistrate’s recommendation, district
courts must review de novo any articulated grounds to which the litigant appears to take issue.”
Elijah v. Dunbar, 66 F.4th 454, 460-61 (4th Cir. 2023). Where no specific objections have been

filed, the court reviews for clear error only. Dunlap v. TM Trucking of the Carolinas, LLC, 288 F.
Supp. 3d 654, 662 (D.S.C. 2017). On clear error review, the court has no obligation to explain its
reasoning for adopting the recommendation. Camby v. Davis, 718 F.2d 198, 200 (4th Cir. 1983).
While a district judge “must make an independent determination of a magistrate judge’s order upon
objection, he is not precluded from reviewing a magistrate judge’s order to which a party did not
object.” Schur v. L.A. Weight Loss Ctrs., Inc., 577 F.3d 752, 760-61 (7th Cir. 2009) (citing Allen
v. Sybase, Inc., 468 F.3d 642, 658 (10th Cir. 2006)) (emphasis in original). “[T]he district judge
remains the final authority in the case, and he may reconsider sua sponte any matter determined
by a magistrate judge.” /d. at 760.
Plaintiffs objected generally to the M&R, arguing it improperly resolves inferences against
plaintiffs. While the Court cannot identify any specific factual allegations the M&R construed in
defendants’ favor, it does accept some of plaintiffs’ other objections, as discussed below.
I. Prosecutorial Immunity
The M&R recommended dismissal of all claims against defendant Leipold based on
prosecutorial immunity. Prosecutors, including attorneys who work for a department of social
services, are immune from individual liability for acts taken in carrying out their prosecutorial
functions. Vosburg v. Dept of Soc. Servs., 884 F.2d 133, 135 (4th Cir. 1989). Absolute immunity
protects, however, only advocative acts “intimately associated with the judicial process,” not
investigative or administrative conduct. /d. at 136, see also Imbler v. Pachtman, 424 U.S. 409
(1976); Burns v. Reed, 500 U.S. 478, 495-96 (1991); Buckley v. Fitzsimmons, 509 U.S. 259, 275—
76 (1993).
In threatening to file a petition for non-secure custody of the Hollands’ natural chilciren,
Leipold stepped away from her prosecutorial role, seeking to regulate the Hollands’ conduct in

matters outside the ongoing juvenile case. This threat was not a mere attempt to keep the status
quo while Leipold determined whether a petition for custody of the other children was warranted;
plaintiffs allege that beyond the existence of an unexplained subdural hematoma in J.H.H., Leipold
had no evidence the Hollands wrought any kind of abuse on their children. Rather, Leipold
allegedly used the threat of another petition to leverage the Hollands’ compliance and extend the
family’s separation.
This kind of activity is neither intimately associated with the judicial process nor
prosecutorial in nature. The threat had a police-type function aimed at preventing future
misconduct through coercive threats, somewhat like the conduct found extra-prosecutorial in
Burns, 500 U.S. at 495 (no absolute immunity for giving legal advice to the police; “it is
incongruous to allow prosecutors to be absolutely immune from liability for giving advice to the
police, but to allow police officers only qualified immunity for following the advice”) and Buckley,
509 U.S. at 276 (no absolute immunity for statements to the press or alleged fabrication of evidence
before prosecution began. “A prosecutor may not shield his investigative work with the aegis of
absolute immunity merely because, after a suspect is eventually arrested, indicted, and tried, that
work may be retrospectively described as ‘preparation’ for a possible trial; every prosecutor might
then shield himself from liability for any constitutional wrong against innocent citizens by ensuring
that they go to trial’’). Plaintiffs therefore allege facts plausibly suggesting Leipold is not entitled
to absolute immunity, and her conduct should be evaluated under the same principles that apply to
other officials.
Similarly, Leipold’s assertions of public official immunity and qualified immunity are
inappropriate for resolution at this stage. Public official immunity precludes certain suits against
public officials in their individual capacities. “As long as a public officer lawfully exercises the

judgment and discretion with which he is invested by virtue of his office, keeps within the scope
of his official authority, and acts without malice or corruption, he is protected from liability.”
Wilcox v. City of Asheville, 222 N.C. App. 285, 288 (2012) (citing Smith v. State, 289 N.C. 303,
331 (1976)). Plaintiffs plead facts supporting a plausible inference that Leipold acted with malice.
Defendants asserting qualified immunity at the 12(b)(6) stage face a “formidable hurdle.”
Long v. City of Concord, 623 F. Supp. 3d 647, 656 (E.D.N.C. 2022). The M&R found “whether
the investigation into child abuse and prosecution of the petition were ‘proper’ is a fact-intensive
inquiry. Plaintiffs have pleaded sufficient facts from which it could be reasonably inferred that
Defendants’ actions were not ‘proper.’” [DE 65, p. 25]. The M&R concluded defendants were not
entitled to qualified immunity at this stage, and the reasoning that the complaint sufficiently stated
claims as to Jackson, Fayko, and Rubright is applicable to Leipold as well. If appropriate, Leipold
may reassert her immunity arguments after the parties have had an opportunity for discovery. With
the exception of the Fourth Amendment, procedural due process, equal protection, and civil
conspiracy claims, plaintiffs plausibly allege their causes of action against defendant Leipold.
II. Plaintiffs’ Eighth Claim for Relief—First and Fourth Amendments, Due Process
Plaintiffs assert claims for violation of their First, Fourth, and Fourteenth Amendment
rights. As to the Fourteenth Amendment, plaintiffs assert both substantive and procedural due
process claims. The M&R recommended dismissal of the claims under the First and Fourth
Amendment and the procedural due process claim as to all defendants.
The M&R found the First Amendment claim was duplicative of the Fourteenth Amendment
claim, and suggested the facts were better analyzed under the Fourteenth Amendment. True, “most
courts have recognized that rights of intimate association based on family relationships derive from
the Due Process Clause of the Fourteenth Amendment.” Evans y. Pitt Cnty. Dep't of Soc. Servs.,

972 F. Supp. 2d 778, 796 (E.D.N.C. 2013), vacated in part on other grounds by Evans v. Perry,
578 F. App'x 229 (4th Cir. 2014). However, a court in the Fourth Circuit has recognized that
the First and Fourteenth Amendments each protect the right to familial association,
and the two seemingly complement one another. [The Supreme Court’s reliance in
Roberts v. United States Jaycees, 468 U.S. 609 (1984), on] Fourteenth Amendment
cases when describing the First Amendment doctrine proves that the two are one
and the same. See Roberts, 468 U.S. at 619-20 (citing Loving v. Virginia, 388 U.S.
1, 87 S. Ct. 1817, 18 L. Ed. 2d 1010 (1967), for the proposition that the First
Amendment "imposes constraints on the State's power to control the selection of
one's spouse."). Put differently, those familial relationships worthy of substantive
due process protection always have the distinguishing attributes Roberts found
worthy of First Amendment protection.
Jonathan R. v. Justice, No. 3:19-CV-00710, 2023 WL 184960, at *11 (S.D.W. Va. Jan. 13, 2023).
Analysis of this issue appears appropriate under both the First and Fourteenth Amendments.
Obviously, it is the Defendants’ duty to interfere with the parent-child relationship
under certain circumstances, and Defendants provide a necessary service to the
community by doing so. But the facts that Plaintiffs have alleged do not describe a
legitimate DSS investigation as much as they describe a campaign to drive a wedge
between parents and their children for obviously illegitimate reasons and by clearly
unacceptable means.
Words of Faith Fellowship, Inc. v. Rutherford Cnty. Dep't of Soc. Servs., 329 F. Supp. 2d 675, 685
(W.D.N.C. 2004) (analyzing right to familial association under the Fourteenth Amendment).
Therefore, the plaintiffs’ § 1981 claim may proceed on a First Amendment theory.
The M&R also recommended dismissal of the Fourth Amendment claim on qualified
immunity grounds. The Fourth Circuit has not “articulated the legal standard that applies to Fourth
Amendment unlawful seizure claims in the child removal context.” Parker v. Henry & William
Evans Home for Children, Inc., 762 F. App’x 147, 154 (4th Cir. 2019). Other circuits “have held
that officials may seize a child from her parents without a judicial order or parental consent only
where officials have reasonable cause to believe that imminent harm to a child does not eave
sufficient time to obtain judicial authorization prior to the removal.” /d. at 155 (collecting cases).

Plaintiffs object to the recommendation of dismissal, arguing that Parker does not create a
categorical bar to Fourth Amendment claims in child removal cases. In noting that it has not
articulated the standard for such claims, the Fourth Circuit does seem to acknowledge a valid
Fourth Amendment claim exists in the child removal context. Plaintiffs then cite Wolfv. Fauquier
Cty. Bd. of Supervisors for the clearly established standard that child removals are unconstitutional
when they constitute an “abuse of power which shocks the conscience.” 555 F.3d 311, 323 (4th
Cir. 2009) (cleaned up); see also Weller v. Dep t of Soc. Servs. For City of Baltimore, 901 F.2d 387,
391-92 (4th Cir. 2009). This argument cannot save the Fourth Amendment claim from dismissal
because the “shocks the conscience” standard is a due process doctrine. “A claim brought under
the Fourth Amendment must be analyzed under the standard appropriate to that specific provision,
not under the rubric of substantive due process.” Parker v. Austin, 105 F. Supp. 3d 592, 598 (W.D.
Va. 2015) (internal quotations and citations omitted). “Thus, plaintiffs' claims under the Fourth
Amendment must be addressed according to a ‘reasonableness standard.’” Jd. (applying Seventh
Circuit reasonableness test for child removal). While it seems plain from the Fourth Amendment’s
first principles that the removal alleged in this case may have been an unreasonable seizure, the
Court cannot conclude that, in the child removal context, the law was clearly established.
The M&R recommended dismissal of the procedural due process claim, finding none of
the complaint’s allegations tend to show the procedures employed in the state juvenile case were
constitutionally inadequate. Plaintiffs objected that defendants’ misrepresentations to the Juvenile
Court—namely, that there was evidence of abuse justifying the separation of the family—tainted
the proceedings to the point they were not meaningful. The process itself, though, is not alleged to
be insufficient. The Hollands had the opportunity at Juvenile Court hearings to respond to the
alleged misrepresentations, and were ultimately successful. In Weller, 901 F.2d 387, 393-94, by

contrast, the Fourth Circuit found a procedural due process violation only when the plaintiff’s
children were removed and no hearing was afforded the plaintiff at all, before or after the removal.
III. Equal Protection
The M&R recommended dismissal of plaintiffs’ equal protection claim. To survive a
motion to dismiss an equal protection claim, “a plaintiff must plead sufficient facts to demonstrate
plausibly that he was treated differently from others who were similarly situated and that the
unequal treatment was the result of discriminatory animus.” Equity In Athletics, Inc. v. Dept of
Educ., 639 F.3d 91, 108 (4th Cir. 2011). Equal protection claims brought by a “class of one” can
succeed only where “the plaintiff alleges that she has been intentionally treated differently from
others similarly situated and that there is no rational basis for the difference in treatment.” Siena
Corp. v. Mayor & City Council of Rockville Maryland, 873 F.3d 456, 465 (4th Cir. 2017) (quoting
Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000)). Plaintiffs objected to dismissal,
arguing “the decision to separate J.H.H. from J.D.H. and J.R.H. and to not place J.H.H. with
relatives” was disparate treatment based on adoption status, and properly alleged in the complaint.
[DE 1-4, § 390]. Plaintiffs also alleged that there “is no rational basis for the arbitrary and
capricious decision to afford the protection of due process to some individuals while ignoring them
for others.” /d. at 389.
The M&R reasoned that an equal protection claim based on denial of due process to some
individuals, but not others, would be “tantamount to transforming every due process claim into an
equal protection claim.” [DE 65, p. 27]. Defendants also argued that the decision to place J.H.H.
outside the Holland family, though related to his adoption status, had a rational basis. Because the
adoption had not been finalized at the time of the removal, the Hollands were not technically
J.H.H.’s “relatives” as defined by N.C.G.S. § 7B-101, and the Holland parents had legal custody

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of their natural children, but not of J.H.H. Therefore, the Hollands’ natural children are
inappropriate comparators with respect to the decision to place J.H.H. in the custody of non-
relatives. [DE 50, pp. 16-17]. This reasoning is persuasive, and the equal protection claim is
dismissed.
IV. Civil Conspiracy
The M&R recommended dismissal of the civil conspiracy claim based on the
intracorporate conspiracy doctrine. To state a claim for civil conspiracy, plaintiffs must allege “(1)
the existence of a conspiracy, (2) wrongful acts done by certain of the alleged conspirators in
furtherance of that conspiracy, and (3) injury as a proximate result of the conspiracy.” Conleys
Creek Ltd. P ship v. Smoky Mountain Country Club Prop. Owners Assn, Inc., 255 N.C. App. 236,
250 (2017). However, “since at least two persons must be present to form a conspiracy, a
corporation cannot conspire with itself, just as an individual cannot conspire with himself.” State
ex rel. Cooper v. Ridgeway Brands Mfg., LLC, 184 N.C. App. 613, 625 (2007), aff'd in part, rev'd
in part, 362 N.C. 431 (2008).
In opposing the M&R’s recommendation of dismissal, plaintiffs note that there are
exceptions to the intracorporate conspiracy doctrine, “including where an agent has an independent
personal stake.” [DE 66, pp. 9-10] (citing Greenville Publ’g Co. v. Daily Reflector, Inc., 496 F.2d
391, 399 (4th Cir. 1974)). All the defendants in this case worked within the same entity and all the
relevant conduct was carried out on behalf of DSS. Because plaintiffs do not poirit to any
allegations indicating an exception to the intracorporate conspiracy doctrine applies, the civil
conspiracy claim is dismissed.

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V. Motion to Strike and Motion to Amend
Plaintiffs moved to strike [DE 70] New Hanover County’s response in opposition [DE 67]
to plaintiffs’ objection to the M&R for exceeding the page limit described in Local Rule 7.2(f).
New Hanover County then moved to amend [DE 71] its response. Because New Hanover County
attached a shortened version of its response complying with the page limit, the motion to amend
is granted and the motion to strike is denied as moot.
CONCLUSION
For the foregoing reasons, the M&R [DE 65] is ADOPTED IN PART and REJECTED IN
PART. The Court has reviewed the portions of the M&R not discussed in this order and finds no
clear error. Defendants’ motions to dismiss [DE49]; [DE 51]; [DE 54] are DENIED IN PART as
MOOT to the extent they argue for dismissal of the claims already voluntarily dismissed by
plaintiffs. They are GRANTED IN PART as to the Fourth Amendment and procedural due process
claims under § 1983, the equal protection claim, and the civil conspiracy claim. The ITED claim
against New Hanover County is also dismissed on the basis of governmental immunity. The
motions to dismiss are otherwise DENIED. To the extent defendant Leipold moved to dismiss
based on prosecutorial immunity, qualified immunity, or public official immunity, her motion to
dismiss [DE 54] is DENIED IN PART WITHOUT PREJUDICE, so that she may reassert her
immunity defenses. It is otherwise DENIED. Additionally, New Hanover County’s motion to
amend [DE 71] is GRANTED and plaintiffs’ motion to strike [DE 70] is DENIED as MOOT.
The following claims will proceed as asserted against the following defendants in their
individual capacities: (1) negligence against defendant Leipold, (2) negligence against defendants
Jackson, Fayko, and Rubright, (3) gross negligence against defendants Leipold, Jackson, Fayko,
and Rubright, (4) negligent supervision against defendants Jackson, Fayko, and Rubright, (5) gross

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negligent supervision against defendants Jackson, Fayko, and Rubright, (6) deprivation of First
Amendment and substantive due process rights under 42 U.S.C. § 1983 against defendants
Jackson, Fayko, Rubright, and Leipold, (7) deprivation of First Amendment and substantive due
process rights under § 1983 and Monell against defendant New Hanover County, and (8) ITED
against defendants Jackson, Fayko, Rubright, and Leipold.

SO ORDERED, this 3d day of March 2026.

je W. BOYLE
UNITED STATES DISTRICT JUD

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11336747. Public record. Not legal advice.