Medic

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF NORTH CAROLINA

CHARLOTTE DIVISION

CIVIL ACTION NO. 3:25-CV-00901-KDB-DCK

KANE ZORAN MEDIC,

Plaintiff,

v. MEMORANDUM AND ORDER

HULL PROPERTY GROUP, LLC,

ET AL.,

Defendants.

Plaintiff Kane Medic alleges that his civil rights were violated when Defendants

permanently banned him from entering the Northlake Mall in Charlotte, North Carolina. Now

before the Court are Defendants Hull Property Group, LLC’s (“Hull”), City of Charlotte’s

(“City”), Officers Tolman and Travis’, and Spinoso Real Estate Group’s (“Spinoso”) Motions to

Dismiss (Doc. Nos. 31, 40, 51, 67), and Plaintiff’s Motion for Default Judgment (Doc. No. 46) as

to Defendant Professional Security Consultants. The Court has carefully considered these motions

and the parties’ briefs and exhibits in support and opposition. For the reasons discussed below, the

Court will GRANT Defendants’ Motions to Dismiss and DENY Plaintiff’s Motion for Default

Judgment.

I. LEGAL STANDARD

A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) for “failure to state a

claim upon which relief can be granted” tests whether the complaint is legally and factually

sufficient. See Fed. R. Civ. P. 12(b)(6); Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atl. Corp.

v. Twombly, 550 U.S. 544, 570 (2007); Coleman v. Md. Court of Appeals, 626 F.3d 187, 190 (4th

Cir. 2010), aff’d, 566 U.S. 30 (2012). A court need not accept a complaint’s “legal conclusions,

elements of a cause of action, and bare assertions devoid of further factual enhancement.” Nemet

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

however, accepts all well-pled facts as true and draws all reasonable inferences in Plaintiff’s favor.

See Conner v. Cleveland Cty., N. Carolina, No. 19-2012, 2022 WL 53977, at *1 (4th Cir. Jan. 5,

2022); E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 440 (4th Cir. 2011).

In so doing, the Court “must view the facts presented in the pleadings and the inferences

to be drawn therefrom in the light most favorable to the nonmoving party.” Pa. Nat’l Mut. Cas.

Ins. Co. v. Beach Mart, Inc., 932 F.3d 268, 274 (4th Cir. 2019). Construing the facts in this manner,

a complaint must contain “sufficient factual matter, accepted as true, to state a claim to relief that

is plausible on its face.” Pledger v. Lynch, 5 F.4th 511, 520 (4th Cir. 2021) (quoting Ashcroft, 556

U.S. at 678). Thus, a motion to dismiss under Rule 12(b)(6) determines only whether a claim is

stated; “it does not resolve contests surrounding the facts, the merits of a claim, or the applicability

of defenses.” Republican Party v. Martin, 980 F.2d 943, 952 (4th Cir. 1992).

When deciding a motion to dismiss, “a court considers the pleadings and any materials

‘attached or incorporated into the complaint.’” Fitzgerald Fruit Farms LLC v. Aseptia, Inc., 527

F. Supp. 3d 790, 796 (E.D.N.C. 2019) (quoting E.I. du Pont de Nemours & Co., 637 F.3d at 448).

Further, this Court is required to liberally construe pro se complaints, which are held to a less

stringent standard than those drafted by attorneys. Erickson v. Pardus, 551 U.S. 89, 94 (2007);

King v. Rubenstein, 825 F.3d 206, 214 (4th Cir. 2016). Nonetheless, the requirement of liberal

construction does not mean that the Court can ignore a clear failure in the pleading to allege facts

which set forth a claim cognizable in a federal district court. See Weller v. Dep’t of Soc. Servs.,

901 F.2d 387 (4th Cir. 1990); see also Ashcroft, 556 U.S. at 684 (outlining pleading requirements

under Rule 8 of the Federal Rules of Civil Procedure for “all civil actions”).

II. FACTS AND PROCEDURAL HISTORY

Plaintiff Kane Medic is a former employee of Go Green CBD at its store located in

Northlake Mall. Consolidated Amended Complaint (“CAC”), Doc. No. 12 at 3. In May 2023,

Medic alleges he was confronted by Defendant Kristin Tolman, a Charlotte-Mecklenburg Police

Department (“CMPD”) police officer, and Security Supervisor J. Acosta, an employee of

Defendant Professional Security Consultants, Inc. (“PSC” or “mall security”). Id. After the

confrontation, Medic alleges that Tolman authored a “false” email report about the interactions

they had between May 28–29, 2023, including that he demonstrated “aggressive” and “taunting”

behavior. Id. She sent the email to PSC. Doc. No. 12-5 at 1. Less than two weeks later, on July 9,

2023, uniformed CMPD officers Tolman and Travis allegedly contacted mall security when Medic

refused to stop recording them inside the mall. CAC at 3; see also Doc No. 12-9. Mall security

arrived and escorted Medic back to his workplace. CAC at 3. PSC employees Coleman and Acosta

then issued him a Criminal Trespass Warning, which permanently banned him from the mall,

citing a violation of the mall’s code of conduct, including recording the officers inside the mall.

Doc. No. 12-10 at 1.

As a result, Medic lost his job. CAC at 3. In November 2025, Medic filed this action,

alleging four causes of action including Monell liability as to Defendant City, and First

Amendment Retaliation, violation of Procedural Due Process under the Fourteenth Amendment,

and intentional infliction of emotional distress as to all Defendants. Id. at 4. In January 2026, Medic

sent an email to PSC asking if he was still banned and, if so, who would be enforcing the ban. Doc.

Nos. 12-11, 12-12. PSC responded that the ban was permanent and would be enforced by “mall

management, [PSC], and CMPD.” Doc. No. 12-12. Finally, after filing his Fourth Amended

Complaint (the CAC), Defendants Hull,1 Officers Tolman and Travis, City, and Spinoso2 each

moved to dismiss the claims against them. Medic has responded, and the motions are ripe for this

Court’s review.

III. DISCUSSION

Section 1983 imposes civil liability on any person who, acting under color of state law,

deprives another of a right secured by the Constitution or federal law. The statute does not itself

create substantive rights; rather, it provides the vehicle through which such rights may be

vindicated. A plaintiff must therefore (1) identify the specific constitutional or federal right

allegedly violated, (2) demonstrate that the right was in fact violated, and (3) establish that the

deprivation was caused by a defendant acting under color of state law. See Daniels v. Williams,

474 U.S. 327, 330 (1986); Hafer v. Melo, 502 U.S. 21, 25 (1991).

Although not itself a source of substantive rights, § 1983 provides “a method for

vindicating federal rights elsewhere conferred.” Albright v. Oliver, 510 U.S. 266, 271 (1994)

(quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)). The statute provides, in relevant part:

Every person who, under color of any statute, ordinance, regulation, custom, or

usage, of any State or Territory or the District of Columbia, subjects, or causes to

be subjected, any citizen of the United States or other person within the jurisdiction

thereof to the deprivation of any rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the party injured in an action at law, suit in

equity, or other proper proceeding for redress.

42 U.S.C. § 1983.

1 Hull is the current property manager for Northlake Mall. Doc. Nos. 12 at 2; 32 at 2.

2 Spinoso is Northlake Mall’s former property manager and managed it during the relevant

period. Doc. No. 67-1 at 4.

Thus, § 1983 affords a remedy to a plaintiff who can show that a person acting under color

of state law deprived him of a right secured by the Constitution or federal law, including certain

statutory rights. See Maine v. Thiboutot, 448 U.S. 1, 4–5 (1980); Knibbs v. Momphard, 30 F.4th

200, 214 (4th Cir. 2022).

A. Section 1983 claims as to Defendant Hull

Medic alleges that Hull retaliated against him for exercising his First Amendment right to

free speech and violated the Substantive Due Process Clause of the Fourteenth Amendment when,

in early 2026, PSC told him that Hull would, in conjunction with others, enforce the permanent

ban against him should he attempt to return to the privately owned Northlake Mall.

However, like many constitutional protections, the Free Speech Clause of the First

Amendment restricts only governmental interference with speech, not the actions of private

parties. Manhattan Cmty. Access Corp. v. Halleck, 587 U.S. 802, 808 (2019); see also White Coat

Waste Project v. Greater Richmond Transit Co., 35 F.4th 179, 191 (4th Cir. 2022). “Similarly, the

Fourteenth Amendment, which prohibits the states from denying federal constitutional rights and

which guarantees due process, applies to acts of the states, not to acts of private persons or entities.”

Rendell-Baker v. Kohn, 457 U.S. 830, 837–38 (1982) (first citing Civil Rights Cases, 109 U.S. 3,

11 (1883); and then citing Shelley v. Kraemer, 334 U.S. 1, 13 (1948)). Courts must therefore ensure

that “constitutional standards,” such as the First and Fourteenth Amendments, are enforced only

when the challenged conduct is fairly attributable to the State, “a requirement known as state

action.” White Coat Waste Project, 35 F.4th at 189 (quoting Brentwood Acad. v. Tenn. Secondary

Sch. Athletic Ass’n, 531 U.S. 288, 295 (2001)) (internal quotations and additional citation omitted).

See also Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982).

Section 1983 contains a related but distinct requirement: the defendant must have acted

“under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988). The statute thus applies only to

a person who, by virtue of some state-created authority, deprives another of a constitutional or

statutory right. White Coat Waste Project, 35 F.4th at 189–90; see also 42 U.S.C. § 1983. A

corporation acts “under color of state law” when exercising power “possessed by virtue of state

law and made possible only because the wrongdoer is clothed with the authority of state law.” Id.

at 190 (quoting West, 487 U.S. at 49) (additional citation omitted).

Although the constitutional state action requirement and the statutory color of law

requirement are technically separate, courts treat them as functionally identical. United States v.

Price, 383 U.S. 787, 794 n.7 (1966). Thus, the central question under § 1983 mirrors the

state-action inquiry, namely, whether the alleged violation of federal rights is “fairly attributable

to the State.” Rendell-Baker, 457 U.S. at 838. Often, this turns on whether there is a “close nexus”

between the government and the challenged conduct. Brentwood Acad., 531 U.S. at 288, 295

(quoting Jackson v. Metro. Edison Co., 419 U.S. 345, 351 (1974)). Generally speaking, however,

“private corporations [like Hull] are not the government ….” White Coat Waste Project, 35 F.4th

at 190 (citing Burton v. Wilmington Parking Auth., 365 U.S. 715, 721–22 (1961)) (additional

citation omitted).

Therefore, Hull may be subject to constitutional claims only if it functioned as a “de facto

state actor[]” in possibly upholding the ban prohibiting Medic from returning to the mall. See

Davison v. Facebook, Inc., 370 F. Supp. 3d 621, 628 (E.D. Va. 2019), aff’d, 774 F. App’x 162 (4th

Cir. 2019). Under controlling precedent, a private party is not transformed into a state actor “unless

the state has so dominated such activity as to convert it into state action; ‘[m]ere approval of or

acquiescence in the initiatives of a private party’ is insufficient.” Id. (quoting DeBauche v. Trani,

191 F.3d 499, 507 (4th Cir. 1999)) (additional citation omitted). Such domination exists only

where “the State has exercised coercive power or has provided such significant encouragement

that the choice must in law be deemed to be that of the State.” Id. (quoting DeBauche, 191 F.3d at

507) (internal quotation marks and alteration omitted).

The Supreme Court has not adopted a single, unified test for determining when private

conduct constitutes state action. However, the Fourth Circuit has identified “four exclusive

circumstances under which a private party can be deemed to be a state actor.” Id. (quoting Andrews

v. Federal Home Loan Bank of Atlanta, 998 F.2d 214, 217 (4th Cir. 1993)). They include:

(1) when the state has coerced the private actor to commit an act that would be

unconstitutional if done by the state; (2) when the state has sought to evade a clear

constitutional duty through delegation to a private actor; (3) when the state has

delegated a traditionally and exclusively public function to a private actor; or (4)

when the state has committed an unconstitutional act in the course of enforcing a

right of a private citizen.

Andrews, 998 F.2d at 217.

Importantly, “[i]f the conduct does not fall into one of these four categories, then the private

conduct is not an action of the state.” Id.

Measured against these four categories, Medic’s allegations fall well short of alleging state

action. Here, Medic’s theory rests on a single statement, relayed to him by PSC, that any ban would

be enforced by “mall management, [PSC], and CMPD.” Doc. No. 12-12. That secondhand

assertion does not satisfy any of the four Andrews circumstances.

First, Medic alleges no facts suggesting that the State coerced Hull into acting. The criminal

trespass warning and permanent ban were issued by PSC (a private security company) for asserted

violations of the mall’s “Code of Conduct.” Doc. No. 12-10 at 1. Nothing indicates that the City

or CMPD compelled Hull to adopt, maintain, or enforce that ban. At most, Medic alleges that a

state actor might participate alongside private parties in enforcing a privately issued ban, which

reflects no more than the “mere approval of or acquiescence in the initiatives of a private party”

that is insufficient to establish state action. DeBauche, 191 F.3d at 507 (quoting Blum v. Yaretsky,

457 U.S. 991, 1004 (1982)). In other words, the actions of a private company are not transformed

into state action simply because the police might be called to assist in removing someone who has

refused to leave the premises.

Second, Medic does not allege that the State sought to evade a clear constitutional duty by

delegating it to Hull. The CAC contains no allegation that Defendant City assigned any of its

obligations to Hull or used Hull to accomplish indirectly what the Constitution forbids it from

doing directly.

Third, excluding a patron from a privately owned shopping mall is not a function

“traditionally and exclusively” reserved to the State. To the contrary, the Supreme Court has held

that a privately owned shopping center does not lose its private character or assume the

constitutional obligations that constrain only the State merely by opening its premises to the public.

Lloyd Corp. v. Tanner, 407 U.S. 551, 569 (1972) (no First Amendment right to distribute handbills

in a privately owned shopping center, explaining that a property does not “lose its private character

merely because the public is generally invited to use it for designated purposes.”); Hudgens v.

NLRB, 424 U.S. 507, 520–21 (1976) (first amendment does not guarantee a right to free expression

on private property). Under this line of authority, a private entity only takes on the character of a

state actor where it assumes “the full spectrum of municipal powers” and “stood in the shoes of

the State.” Lloyd, 407 U.S. at 569. Northlake Mall is an ordinary private shopping center, not a

company town, and the power to control access to it is a private prerogative rather than a delegated

sovereign power.

Finally, Medic does not plausibly allege that Hull itself committed an unconstitutional act

in the course of enforcing the rights of a private citizen. Hull did not begin managing Northlake

Mall until 2025, approximately two years after the ban was issued, and Medic identifies no conduct

by Hull beyond the secondhand statement that Hull would be among those enforcing an already

existing ban. Doc. Nos. 12 at 2; 32 at 2.

In sum, Medic has not alleged any facts showing that Hull’s conduct is fairly attributable

to the state under any recognized state action theory. Accordingly, his § 1983 claims against Hull

fail and must be dismissed.

B. Section 1983 claims as to Defendant Spinoso Real Estate Group

Medic asserts the same First and Fourteenth Amendment claims against Spinoso Real

Estate Group that he brings against Hull. As discussed above with respect to Hull, Spinoso is a

private entity, and Medic’s constitutional claims against it are cognizable under § 1983 only if

Spinoso’s challenged conduct is fairly attributable to the State under one of the four Andrews

categories.

However, Medic’s claims against Spinoso fail at an even more fundamental level because

he alleges no conduct by Spinoso at all. The CAC identifies no act by Spinoso relating to the

trespass warning, the permanent ban, or any other matter, and Medic does not allege that he had

any interaction with Spinoso. See CAC. Where a plaintiff identifies no action by a defendant, he

necessarily cannot show that the defendant’s conduct was coerced by the State, reflected a

delegated public function, or otherwise satisfied any recognized state action theory. See Andrews,

998 F.2d at 217. Absent any alleged conduct by Spinoso, much less conduct fairly attributable to

the State, Medic cannot establish the state action element essential to his § 1983 claims against

Spinoso, and those claims will be dismissed.

C. Section 1983 claims as to Officers Tolman and Travis

Medic asserts the same claims against Officers Tolman and Travis as he did against Hull

and Spinoso. As with corporations, a police officer acts “under color of state law” when exercising

power “possessed by virtue of state law and made possible only because the wrongdoer is clothed

with the authority of state law.” White Coat Waste Project, 35 F.4th at 190 (quoting West, 487

U.S. at 49) (additional citation omitted); see also 42 U.S.C. § 1983. Section 1983 liability attaches

only when an officer acts under color of state law; conduct undertaken “in the ambit of [an

officer’s] personal, private pursuits” does not qualify. Revene v. Charles Cnty. Comm’rs, 882 F.2d

870, 872 (4th Cir. 1989) (quoting Rogers v. Fuller, 410 F. Supp. 187, 191 (M.D.N.C. 1976)).

Although indicia of official authority—such as “being on duty, wearing a uniform, or

driving a patrol vehicle”—may be relevant to the inquiry, “they are not dispositive.” White v. City

of Greensboro, 532 F. Supp. 3d 277, 309 (M.D.N.C. 2021), vacated on reconsideration in part on

other grounds, 586 F. Supp. 3d 466 (M.D.N.C. 2022) (citing Revene, 882 F.2d at 872). In other

words, the controlling consideration is the nature of the act performed, not the officer’s status or

outward appearance. Revene, 882 F.2d at 872 (quoting Monroe v. Pape, 365 U.S. 167, 184–87

(1961), overruled on other grounds by Monell v. Dept. of Soc. Serv., 436 U.S. 658 (1978)).

Here, Medic alleges that Officer Tolman “falsely accused Plaintiff of aggressive behavior

and ‘taunting’” in an email she sent to PSC. CAC at 3. The email, which described Medic’s

interactions with mall security on May 28-29, 2023, is attached to the CAC as an exhibit, and states

that after observing confrontations between Medic and mall security supervisor J. Acosta on May

28, Officer Tolman “suggested [Medic] let the situation go.” Doc. No. 12-6. Medic alleges that the

email was later used to justify PSC’s issuance of the permanent ban. CAC at 3. He also alleges

that while in uniform, Officer Travis “instruct[ed] Plaintiff to stop recording and threaten[ed] to

call security if Plaintiff did not comply.” Doc. Nos. 12-8; 12-9.

The Court is skeptical that on these facts, Medic has sufficiently pleaded that Officers

Tolman and Travis were acting under color of state law during their interactions with him. Nothing

in the CAC suggests the officers were performing any police function at the time; they may have

only been present at the mall for personal reasons and, like any citizen, may simply not have

wanted to be filmed going about their own business. Even so, construing the CAC and its exhibits

broadly and in Medic’s favor, the Court assumes without deciding that the threshold color of law

element can be satisfied. The Court therefore turns to whether Medic has plausibly alleged a

violation of his First and Fourteenth Amendment rights.3

1. First Amendment Retaliation

In his First Amendment retaliation claim, Medic contends that CMPD officers violated his

rights by contacting mall security after observing him recording them. See CAC at 3. To state a

claim for First Amendment Retaliation, a plaintiff must plausibly allege: (1) he “engaged in

protected First Amendment activity, (2) the defendants took some action that adversely affected

[his] First Amendment rights, and (3) there was a causal relationship between [Plaintiff’s]

protected activity and the defendants’ conduct.” Buxton v. Kurtinitis, 862 F.3d 423, 427 (4th Cir.

2017) (quoting Constantine v. Rectors & Visitors of George Mason Univ., 411 F.3d 474, 499 (4th

3 To the extent that Plaintiff asserts his § 1983 claims against Tolman and Travis in their

official capacities, those claims will be dismissed as duplicative of the Monell claim against City

because “an official capacity claim ... is a claim against a government entity of which an agent is

an officer.” Lilly v. Baltimore Police Dep’t, 694 F. Supp. 3d 569, 591 (D. Md. 2023) (quoting

Kentucky v. Graham, 473 U.S. 159, 165 (1985)) (additional citations omitted). See Love-Lane v.

Martin, 355 F.3d 766, 782 (4th Cir. 2004) (“The district court correctly held that the § 1983 claim

against [the defendant] in his official capacity as Superintendent is essentially a claim against the

Board and thus should be dismissed as duplicative.”).

Cir. 2005)) (additional citation omitted). In early 2023, just months before Medic’s encounter with

CMPD, the Fourth Circuit held that recording police while they are engaged in police activity is

conduct protected by the First Amendment. See Sharpe v. Winterville Police Dep’t, 59 F.4th 674,

681 (4th Cir. 2023) (holding that recording police officers during a traffic stop is a protected

activity under the First Amendment because gathering information about police encounters

contributes to public discussion of governmental affairs). See also Garcia v. Montgomery Cnty.,

Maryland, 145 F. Supp. 3d 492, 508 (D. Md. 2015) (finding a constitutional right to record “public

police activities,” including recording police during the arrest of a third party, if done “peacefully

and without interfere[ence]”); Williams v. Mitchell, 122 F.4th 85, 89–91(4th Cir. 2024) (First

Amendment protected the filming of a police officer investigating a trespassing charge).

As a threshold matter, Medic does not allege that Officers Tolman and Travis were

conducting any police activity, such as arresting, detaining, or questioning a suspect, when he

began filming them inside the mall. Nor does Medic cite, and the Court has not located, any

authority suggesting that the First Amendment protects the recording of a police officer who is not

performing police functions, but is merely in a public place in uniform.. Although “recording

police encounters creates information that contributes to discussion about governmental affairs,”

Sharpe, 59 F.4th at 681, the same cannot be said about recording police officers who are not

involved in the activities of policing. The Court therefore concludes that Medic has not plausibly

alleged that he was engaged in protected First Amendment activity when he recorded the officers.

Even assuming, however, that Medic could satisfy the first element, the claim still fails

because he has not plausibly alleged that either officer took an action that adversely affected his

First Amendment rights or that any such action caused him a cognizable injury. Officer Tolman’s

only conduct—occurring more than a week before the recording incident—was authoring an email

describing her observations of Medic’s altercation with PSC supervisor Acosta, and allegedly

advising him to “let the situation go.” Doc. Nos. 12-5, 12-6. Officer Travis’ only alleged conduct

was instructing Medic to stop recording and stating that he would call mall security if he did not

comply. Doc. Nos. 12-8, 12-9.

Medic’s conclusory assertion that Tolman’s email was later “used to justify” PSC’s ban

does not establish causation. Indeed, the CAC attributes the decision to ban him to PSC staff

(specifically employees Coleman and Acosta, with whom he had prior altercations including

allegedly calling Acosta a “small-headed bald fry”) rather than to either officer. See Doc. Nos. 12-

5, 12-10. At most, Medic alleges that the officers’ conduct preceded a private entity’s independent

decision, which is insufficient to satisfy the causal relationship required for First Amendment

retaliation. See Buxton, 862 F.3d at 427. Neither Tolman’s email, which is not referenced in the

ban, nor Travis’ instruction to stop recording deprived Medic of any right, and the adverse action

of which he complains–the permanent ban and the resulting loss of his employment—was imposed

by PSC for asserted violations of the mall’s code of conduct, including filming the officers inside

the mall. Doc. No. 12-10 at 1. Medic therefore fails to state a claim for First Amendment retaliation

against Officers Tolman and Travis.

2. Due Process Under the Fourteenth Amendment

Medic next alleges that his right to procedural due process was violated when he was

permanently banned from Northlake Mall without notice or opportunity to be heard. The threshold

question is therefore whether Medic had a liberty or property interest in access to the mall such

that the Fourteenth Amendment required process before the ban issued. He did not.

“The Fifth Amendment [as applied to the States through the Fourteenth Amendment]

provides that [n]o person shall be … deprived of life, liberty, or property, without due process of

law.” Kerry v. Din, 576 U.S. 86, 90 (2015). “Although the amount and quality of process that our

precedents have recognized as ‘due’ under the Clause has changed considerably since the

founding, […] it remains the case that no process is due if one is not deprived of ‘life, liberty, or

property.’” Id. (first quoting Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 28–36 (1991); and

then quoting Swarthout v. Cooke, 562 U.S. 216, 219 (2011)).

To succeed on a procedural due process claim, a plaintiff must therefore allege: “(1) a

cognizable liberty or property interest; (2) the deprivation of that interest by some form of state

action; and (3) that the procedures employed were constitutionally inadequate.” Crowder v.

Burress, 813 F. Supp. 3d 564, 570 (W.D.N.C. 2025) (quoting Bhattacharya v. Murray, 93 F.4th

675, 700 (4th Cir. 2024)) (internal quotations omitted). To have a protected property interest, a

person must have “more than a unilateral expectation”; rather he must “have a legitimate claim of

entitlement,” and such interests “are created and their dimensions are defined by existing rules or

understandings that stem from an independent source such as state law.” Bd. of Regents of State

Colls. v. Roth, 408 U.S. 564, 577 (1972).

Here, Medic offers no statute, rule, or mutually explicit understanding entitling him to enter

Northlake Mall, a privately owned shopping center; his asserted interest in continued access is at

most the kind of unilateral expectation that Roth holds insufficient. Nor did the ban deprive Medic

of a protected liberty interest. Under Roth, a person is not deprived of liberty when he is denied a

single opportunity yet “remains as free as before” to pursue others, absent a stigmatizing charge

against his good name or a disability that broadly forecloses his freedom to take advantage of other

opportunities. 408 U.S. at 573–75. Excluding Medic from one private mall neither stigmatized him

nor restricted his freedom to go elsewhere. Nor does the loss of his job with a mall tenant constitute

a deprivation of a protected liberty interest. The termination of one position, absent an injurious

charge by a state actor or a state-imposed bar that forecloses a range of employment opportunities,

does not implicate the liberty interest to pursue an occupation.4 See id. Moreover, none of the

Defendants was Medic’s employer. He worked for a mall tenant, Go Green CBD, so the loss of

that position was a collateral consequence of a privately issued ban, not a deprivation of any

protected interest by Defendants. And the ban itself was issued by PSC, a private security

company, not by Officer Tolman or Officer Travis. Doc. No. 12-10 at 1. Because Medic has not

plausibly alleged that he had a protected liberty or property interest in access to the mall,5 the Court

will dismiss his Fourteenth Amendment claim.

D. Section 1983 and Monell claims as to Defendant City

Medic next alleges that City violated his First and Fourteenth Amendment rights and is

liable under Monell because the actions taken by Officers Tolman and Travis were “pursuant to

policy, practice, or failure to train and supervise.” CAC at 4.

“[M]unicipal liability attaches only when the decision maker is the municipality’s

governing body, a municipal agency, or an official possessing final authority to create official

4 “Although an employee may have a constitutionally protected property interest in

employment, that interest ‘does not extend to the right to possess and retain a particular job or to

perform particular services.’” Burch v. NC Dep’t of Pub. Safety, 158 F. Supp. 3d 449, 458

(E.D.N.C. 2016) (quoting Fields v. Durham, 909 F.2d 94, 97 (4th Cir. 1990)) (internal quotations

and additional citations omitted). The Fourth Circuit is “reluctant to recognize multiple property

interests within the same employment relationship,” describing such disfavored interests as

“entitlements within entitlements to perform specific functions.” Id. (quoting Fields, 909 F.2d at

97). Rather, the “property interest” is in continued employment generally. Fields, 909 F.2d at 97.

5 To the extent that Plaintiff may be alleging that he has a protected property or liberty

interest in the mall as a patron, he does not. See, e.g., Phillips v. S. Coast Plaza, No.

SACV1800812AGJDEX, 2018 WL 6074583, at *2 (C.D. Cal. July 17, 2018), aff’d, 785 Fed.

Appx. 474 (9th Cir. 2019) (“the inability to shop at a private mall … doesn’t implicate any

protected interest.”) (emphasis added); Pac. Gas & Elec. Co. v. Pub. Utilities Comm’n of

California, 475 U.S. 1, 23 (1986) (“a consumer who purchases food in a grocery store is “paying”

for the store’s rent, heat, electricity, wages, etc., but no one would seriously argue that the

consumer thereby acquires a property interest in the store.”).

policy.” Howard v. City of Durham, 68 F.4th 934, 952 (4th Cir. 2023) (quoting Semple v. City of

Moundsville, 195 F.3d 708, 712 (4th Cir. 1999)). This level of policymaker involvement is

essential because, as the Supreme Court has emphasized, Monell liability is not simply respondeat

superior liability repackaged. Id. (citing Monell, 436 U.S. at 691). Moreover, municipalities are

liable only for “their own illegal acts.” Id. (quoting Pembaur v. Cincinnati, 475 U.S. 469, 479

(1986)) (emphasis in original). Therefore, “to hold a municipality liable for a constitutional

violation under Monell, a plaintiff must prove ‘the existence of an official policy or custom that is

fairly attributable to the municipality and that proximately caused the deprivation of their rights.’”

Id. (quoting Jordan ex rel. Jordan v. Jackson, 15 F.3d 333, 338 (4th Cir. 1994)).

A municipal policy or custom may arise in several ways: (1) through an explicit 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.” Id. (quoting

Starbuck v. Williamsburg James City Cnty. Sch. Bd., 28 F.4th 529, 533 (4th Cir. 2022)) (additional

citation omitted).

Here, although Medic asserts that the officers acted “pursuant to a policy, practice, or

failure to train and supervise,” such a conclusory allegation fails to plausibly allege Monell

liability. Indeed, Medic alleges only that Officer Tolman was one of the officers involved in the

incident that resulted in his being banned from the mall and sent PSC a “false” email describing

her observations of the incidents between him and mall security on May 28 and 29, 2023. CAC at

3. Beyond advising Medic to “let the situation go,” the email reflects that Officer Tolman took no

other action toward him, and Medic does not allege otherwise. See Doc. Nos. 12-5, 12-6. Medic

describes similarly limited interactions with Officer Travis, asserting only that he “threatened” to

call mall security if Medic continued recording him on private mall property. See Doc. No. 12-9

at 1. Officer Travis is also listed as the responding CMPD officer on the permanent ban issued by

mall security on July 9, 2023. Doc. No. 12-10.

Taking the factual assertions as true, Medic does not plausibly allege the officers acted

under any written ordinance or regulation, that a “failure to train” occurred or resulted in deliberate

indifference to the rights of citizens, or that the officers acted through a persistent and widespread

practice that could reasonably constitute a custom. Accordingly, these claims will be dismissed.

E. Intentional Infliction of Emotional Distress

In Medic’s final claim, he alleges Defendants’ conduct was “extreme, outrageous, reckless,

and intended to cause emotional distress.” CAC at 4.

In North Carolina, intentional infliction of emotional distress (“IIED”) involves “(1)

extreme and outrageous conduct, (2) which is intended to cause and does cause (3) severe

emotional distress.” Morgan v. City of Charlotte, No. 322CV00003KDBDCK, 2023 WL 4002524,

at *16 (W.D.N.C. June 14, 2023) (quoting Hogan v. Forsyth Country Club Co., 79 N.C. App. 483,

487–88 disc. review denied, 317 N.C. 334 (1986)). For conduct to qualify as extreme and

outrageous, it must go far beyond the limits of acceptable behavior—so much so that a civilized

society would view it as “atrocious[] and utterly intolerable.” Briggs v. Rosenthal, 73 N.C. App.

672, 677 (1985). Courts interpreting Briggs have emphasized that this is a very high bar and have

consistently required a showing of truly egregious behavior before finding that the standard is met.

Dobson v. Harris, 134 N.C. App. 573, 578–79 (1999), rev’d on other grounds by, 352 N.C. 77

(2000).

In other words, “liability clearly does not extend to mere insults, indignities, [and] threats

....” Karanik v. Cape Fear Acad., Inc., 608 F. Supp. 3d 268, 290 (E.D.N.C. 2022) (quoting

Wagoner v. Elkin Cty. Schs.’ Bd. of Educ., 113 N.C. App. 579, 586 (1994)). Compare Dobson,

134 N.C. App. at 578–79 (falsely reporting child abuse does not constitute extreme and outrageous

conduct), and Karanik, 608 F. Supp. 3d at 290–91 (suffering “insult and indignity” as a result of

allegedly retaliatory conduct does not plausibly allege IIED), with Eubanks v. State Farm Fire &

Cas. Co., 126 N.C. App. 483, 485 (1997) (soliciting the commission of murder is an extreme and

outrageous act), Miller v. Brooks, 123 N.C. App. 20, 29–30 (1996) (breaking into a plaintiff’s

house to install a hidden video camera is extreme and outrageous conduct), and Bradley v. Ramsey,

329 F. Supp. 2d 617, 627 (W.D.N.C. 2004) (IIED plausibly alleged where Plaintiff claimed that

certain public officials used their “elected positions to retaliate against and blackmail” him for

reporting their “illegal activity”).

Hull did not manage Northlake Mall until 2025, approximately two years after Medic was

banned by PSC, and its only interaction with Medic is through PSC, which allegedly told him via

email that the mall ban was active and would be enforced by it, CMPD, and “mall management”

if he returned. Doc Nos. 12-12; 32 at 4. The CMPD officers’ interactions with Medic include

allegedly (1) contacting mall security when he refused their request to stop filming them inside the

mall, (2) falsely accusing him of aggressive and taunting behaviors, and (3) writing an “fictitious”

email. CAC at 3. And Medic alleges no interaction at all with Spinoso. Put simply, Medic alleges

no conduct by any of the Defendants that could plausibly amount to IIED. Accordingly, this claim

will be dismissed as to all Defendants.

F. Plaintiff’s Motion for Default Judgment as to Defendant PSC

Separate from the foregoing motions to dismiss, Medic has moved for default judgment

against PSC, which has not appeared or otherwise responded to the CAC and against which the

Clerk has entered default (Doc. No. 42).

Entry of default does not entitle a plaintiff to judgment as a matter of course. A defaulted

party “is deemed to have admitted all well-pleaded allegations of fact contained in the complaint.”

Doe v. Nash Cnty. Bd. of Educ., No. 5:24-CV-259-D, 2025 WL 820671, at *11 (E.D.N.C. Mar.

13, 2025) (citing Ryan v. Homecomings Fin. Network, 253 F.3d 778, 780 (4th Cir. 2001))

(additional citations omitted). However, while a defendant may not then challenge “the factual

allegations of the complaint, he does not ‘admit’ the legal conclusions.” Weft, Inc. v. G.C. Inv.

Associates, 630 F. Supp. 1138, 1141 (E.D.N.C. 1986), aff’d sub nom. Weft, Inc. v. Georgaide, 822

F.2d 56 (4th Cir. 1987); see also Ryan, 253 F.3d at 780; Thomson v. Wooster, 114 U.S. 104, 113

(1885) (a default judgment may be entered only “according to what is proper to be decreed upon

the statements of the bill assumed to be true,” and not “as of course according to the prayer of the

bill.”). Thus, “a default is not treated as an absolute confession by the defendant of his liability and

of the plaintiff’s right to recover,” Doe, 2025 WL 820671, at *11 (quoting Ryan, 253 F.3d at 780)

(additional citation omitted). The Court must therefore “determine whether the well-pleaded

allegations in [the] complaint support the relief sought.” Ryan, 253 F.3d at 780 (citing Weft, 630

F. Supp. at 1141); accord J & J Sports Prods., Inc. v. Romenski, 845 F. Supp. 2d 703, 705–06

(W.D.N.C. 2012).

Applying that standard, the well-pleaded allegations do not support the § 1983 relief Medic

seeks against PSC. He asserts against PSC the same First Amendment retaliation and procedural

due process claims he asserts against the other Defendants, and both arise under §1983, which

reaches only conduct undertaken “under color of state law.” West, 487 U.S. at 48. Whether or not

PSC acted under color of state law is a legal conclusion, not a well-pleaded fact, and PSC’s default

does not admit it. Nor do the well-pleaded facts establish it. PSC is a private security company,

and the conduct Medic attributes to it—escorting him from the premises and issuing a Criminal

Trespass Warning and permanent ban for violating the mall’s private code of conduct and filming

officers—is private conduct of the same character the Court has already found insufficient to

constitute state action as to Hull and Spinoso.

Further, Medic’s assertion that CMPD officers contacted PSC’s security personnel before

PSC acted, and that PSC later advised him the ban would be enforced in part by CMPD, shows at

most that the State acquiesced in or lent support to a decision PSC made for its own private reasons,

not that the State coerced or dominated that decision. Such involvement does not make PSC’s

conduct fairly attributable to the State. See DeBauche, 191 F.3d at 507; Andrews, 998 F.2d at 217.

Because Medic has not plausibly alleged that PSC acted under color of state law, his § 1983 claims

against PSC fail, even on PSC’s default.

Finally, Medic’s IIED claim against PSC fails for the reasons given above in addressing

that claim, as issuing a trespass warning and permanent ban for an asserted code of conduct

violation is not the sort of “atrocious[] and utterly intolerable” conduct North Carolina law

requires. Briggs, 73 N.C. App. at 677.

Accordingly, because the allegations, even accepted as true, do not support the relief Medic

seeks, his motion for default judgment against PSC will be DENIED, and his § 1983 and IIED

claims against PSC will be DISMISSED for failure to state a claim.

IV. ORDER

NOW THEREFORE IT IS ORDERED THAT:

1. Defendants’ Motions to Dismiss (Doc. Nos. 31, 40, 51, 67) are GRANTED;

2. Plaintiffs Motion for Default Judgment (Doc. No. 46) is DENIED;

3. Plaintiffs claims against Defendant PSC are DISMISSED; and

4. The Clerk is directed to close this matter in accordance with this Order.

SO ORDERED ADJUDGED AND DECREED.

Signed: August 24, 2026

Kenneth D, Bell

United States District Judge □□ i

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