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White v. The City of Greensboro

United States District Court, M.D. North Carolina

September 30, 2019

THE CITY OF GREENSBORO, ERIC G. SIGMON, in his individual and official capacity, JOHNNY L. RAINES, JR., in his individual and official capacity, WILLIAM B. BARHAM, in his individual and official capacity, BRIAN S. WILLIAMSON, in his individual and official capacity, JASON A. LOWE, in his individual and official capacity, B.J. BARNES, Sheriff of Guilford County in his official capacity, TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA JAMES MATTHEW STALLS, in his individual and official capacity, ELIZABETH M. BUSKIRK, in his individual and official capacity, DAVID W. COOK, in his individual and official capacity, HOMER F. WILKINS, in his individual and official capacity, THE CITY OF REIDSVILLE, LYNWOOD F. HAMPSHIRE, in his individual and official capacity, SHANNON C. COATES, in his individual and official capacity, ROBERT A HASSELL, in his individual and official capacity, THE CITY OF BURLINGTON, JAMES E. HINSON, JR., in his individual and official capacity, JAMES M. SHWOCHOW, in his individual and official capacity, ERIC A. WATKINS, in his individual and official capacity, CODY A. WESTMORELAND, in his individual and official capacity, DON WAYNE SCOTT, JR., in his individual and official capacity, and JIM WESTMORELAND, in his individual and official capacity, LINDSAY MICHELLE ALBERT, in his individual and official capacity, Defendants.



         This lawsuit arises out of the arrest of Plaintiff William Z. White, when he was a Greensboro Police Department (“GPD”) officer, and his subsequent firing. White claims that members of the Guilford County Sheriff's Office (“GCSO”), led in part by his brother-in-law, unfairly targeted him by wrongly convincing other law enforcement agencies that he had participated in illegal activity. White alleges multiple constitutional violations, via 42 U.S.C. § 1983, an unlawful taking under the Fifth and Fourteenth Amendments, violation of federal COBRA, 29 U.S.C. § 1166, state law torts of malicious prosecution, trespass, tortious interference with contract, and conspiracy, and violation of the North Carolina Constitution against twenty-four named Defendants across four law enforcement agencies:

• Members of the GCSO -- Sheriff B.J. Barnes in his official capacity; James Stalls, Elizabeth Buskirk, David Cook, and Homer Wilkins, all in their individual and official capacities, and Travelers Casualty & Surety Company of America as issuer of the Sheriff's surety bond[1] (“GCSO Defendants”);
• City of Greensboro and employees James Schwochow, Eric Sigmon, Johnny Raines, William Barham, Brian Williamson, Jason Lowe, Lindsay Albert, James Hinson, Don Wayne Scott, and Jim Westmoreland, all in their individual and official capacities (“Greensboro Defendants”);
• City of Burlington and employees Cody Westmoreland and Eric Watkins, in their individual and official capacities (“Burlington Defendants”); and
• City of Reidsville and employees Lynwood Hampshire, Shannon Coates, and Robert Hassell, in their individual and official capacities (“Reidsville Defendants”).[2]

         Before the court are the motions to dismiss by the GCSO Defendants, Greensboro Defendants, and Burlington Defendants for failure to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6).[3] (Docs. 36; 43; 45; 47.) Plaintiff responded but also moved for leave to file a second amended complaint (Doc. 54), which the Defendants opposed. (Docs. 68, 69, 70, 71.) Following a hearing on these motions on September 10, 2019, the court granted Plaintiff's motion for leave to amend, with the parties' agreement that the court will treat Defendants' briefs in opposition to Plaintiff's motion for leave as supplements to Defendants' pending motions to dismiss. For the reasons that follow, Defendants' motions will be granted in part and denied in part.

         I. BACKGROUND

         The allegations of the second amended complaint, taken in the light most favorable to White, show the following.

         White, while employed as a GPD police officer (Doc. 81 ¶ 31), earned additional income by buying and reselling houses and certain equipment in his spare time. (Id. ¶ 32.). In August 2016, a Scott's Tractor store in Reidsville, North Carolina, reported a theft of nine mowers to the Reidsville Police Department (“RPD”). (Id. ¶ 34.) A few days later, on August 24, White unknowingly purchased and took possession of one of these stolen mowers. (Id. ¶ 35.) Before purchasing the mower, he told his brother-in-law, Defendant James Stalls, that he was considering buying the mower. (Id. ¶ 36.) Stalls, an officer in the GCSO (id. ¶ 17), was jealous of White's side business flipping houses and equipment, so much so that Stalls began to spread rumors within the GCSO and among local fire stations that White was either responsible for the mower thefts or was dealing with stolen equipment. (Id. ¶¶ 33, 41.)

         White went on vacation with his family over the following Labor Day weekend, and while he was away Stalls entered his house, ostensibly to check on a pet at the request of White's wife, and investigated the mower White had recently purchased. (Id. ¶¶ 41, 43.) Stalls found the mower, removed the cover, and took photographs, including of the mower's vehicle identification No. (also known as a VIN). (Id. ¶ 43.) Stalls then told GCSO Deputies Cook and Buskirk what he had done and provided the information he had obtained. (Id.) Stalls asked Cook to search the GCSO database for the mower's VIN, which both men knew was prohibited by GCSO policy and procedure. (Id.) Because Stalls and Buskirk were engaged in an extramarital affair, Buskirk was motivated to share Stalls' jealousy and animosity toward White. (Id. ¶¶ 43, 41.)

         As a result of the Scott's Tractor store theft and other lawn mower thefts in the area, a multi-department law enforcement effort developed. (Id. ¶ 39.) Buskirk, armed with the information Stalls provided from his search of White's home and Cook's VIN check, encouraged Defendant Hampshire, an officer of the RPD, to investigate White. (Id. ¶ 45.)

         On September 15, 2016, White offered the mower for sale on Craigslist. (Id. ¶ 47.) David Terry and his wife contacted White four days later about purchasing the mower. (Id. ¶ 48.) Prior to the Terry's contact, however, they had received a text message containing a photo of “an engine No. or serial number.” (Id. ¶ 47.) White contends that one of the Defendants sent this text message to the Terrys. (Id. ¶ 51.)

         The Terrys purchased and took possession of the mower on September 19. (Id. ¶ 48.) The next day, they told White they believed the mower was stolen, and although White disagreed, he advised them to report it to law enforcement if that was their conclusion. (Id. ¶ 50.)

         The Terrys in fact contacted the Durham County Sheriff's Office (“DCSO”) about the mower and provided a serial number. (Id. ¶ 52.) That serial number, which ended in “866, ” was different from the VIN photographed by Stalls while in White's residence. (Id.) DCSO determined that the “866” serial No. was associated with one of the mowers stolen from Scott's Tractor, and informed RPD. (Id. ¶ 53.) The same day the Terrys reported the mower stolen, DCSO took possession of it and the RPD reported the mower as “recovered” in its database. (Id. ¶¶ 53-54.) On November 10, after law enforcement again met with the Terrys, Hampshire changed the VIN of the “recovered” mower in the law enforcement database to a No. ending in “684.” (Id. ¶ 67.) No. law enforcement officer personally viewed the lawn mower to confirm the serial number. (Id. ¶¶ 68, 73.)

         As the investigation into the lawn mower thefts continued, Buskirk continued to push for officials to specifically investigate White, based on the information unlawfully obtained by Defendants Stalls and Cook. (Id. ¶¶ 57, 60.)

         In November 2016, Defendant Hampshire met with other law enforcement officers, including Buskirk, about the lawn mower thefts. At this meeting, Buskirk identified White in a photograph and revealed that he was a GPD police officer. (Id. ¶ 61.) This led Hampshire to seek the involvement of the North Carolina State Bureau of Investigation (“SBI”), which assigned SBI Agent Denny to assist in the investigation.[4] (Id. ¶ 62.)

         On November 2, 2016, Hampshire and Defendant Wilkins, a deputy with GCSO, went to White's residence where, without a warrant, they entered the garage and looked around, noting the presence of police equipment. (Id. ¶ 63.) A week later, Hampshire and SBI Agent Denny interviewed White regarding the sale of the lawn mower to the Terrys. (Id. ¶ 66.) During this interview, White stated that he did not believe the mower he purchased and sold to the Terrys was stolen, and he also told law enforcement that Stalls had been spreading unfounded rumors about him. (Id.)

         Between November 2016 and March 2017, the SBI, RPD, and BPD all worked cooperatively to investigate the lawn mower thefts, informally designating the investigation “Breaking Bad.” (Id. ¶¶ 70-71.)

         Hampshire presented the evidence against White to district attorneys in Guilford and Rockingham Counties, but both declined to prosecute. (Id. ¶¶ 75-76.) On March 5, 2017, Hampshire applied for and obtained a warrant from a magistrate in Alamance County to search White's residence for records relating to the sale of the mower to the Terrys. (Id. ¶ 74.) The warrant was executed the next day, and members of various law enforcement agencies, including officers from both the GPD and BPD, participated. (Id.) Officers removed White's personal property as well as GPD property loaned to him. (Id. ¶ 81.) Among the seized items were firearms and silencers.

         The same day as the search of White's home, White was arrested by Defendant Hinson of the GPD and his employment was terminated. (Id. ¶¶ 82, 97.) Although an arrest warrant had been drafted and prepared for a magistrate to execute, White was actually arrested before the warrant was approved.[5] (Id. ¶ 82.) According to White, although he was fired the same day he was arrested, the arrest was unprecedented as other GPD officers had been charged with serious offenses - including possession of child pornography - but were not terminated. (Doc. 81 ¶ 107.) Defendant Hinson, who effected the arrested, had urged Greensboro Defendants Don Wayne Scott and Jim Westmoreland to immediately fire White. (Id. ¶ 108.) White claims Hinson pressured Don Wayne Scott and Jim Westmoreland to terminate him because he had filed grievances against Hinson for unequal treatment. (Id. ¶¶ 108-09.)

         The next day, March 7, Cody Westmoreland and SBI Agent Denny interviewed GPD Officer D.S. Rakes, [6] who falsely told them that White's arrest would make him homicidal (Id. ¶ 84). Without investigating the truthfulness of this claim, Westmoreland told Defendant Watkins. (Id.) Watkins, also without investigating the statement, included Rakes' statement in his criminal complaint charging White with federal firearms offenses. (Id. ¶¶ 85, 93.) The federal firearms charge was based on a serial No. from one of the firearms seized from White's home that turned out to be incorrectly reported by Defendant Watkins. (Id. ¶ 93.) That same day, Agent Denny charged White with possession of weapons of mass destruction in Guilford County. (Id. ¶ 86.)

         On March 8, GPD Defendant Schwochow wrongly determined that White had illegally possessed GPD equipment (id. ¶ 91) even though GPD's inventory system lacked the ability to distinguish between GPD-loaned equipment and equipment personally purchased and owned by White. (Id. ¶ 95). Schwochow reached this conclusion because he begrudged White's wife's refusal to provide after-school care for Schwochow's children. (Id. ¶ 92.) Agent Denny used this incorrect information to file charges against White for theft of GPD equipment. (Id. ¶¶ 94, 96.) Following White's arrest, “various Defendants” appeared on television to speak about the arrest of a police officer to promote themselves and to further their careers. (Id. ¶ 101.)

         On June 19, 2017, U.S. District Judge Loretta C. Biggs of this court determined in White's federal criminal case that his motion to suppress should be granted, finding that the firearms seized during the March 6 search of White's residence (for materials related to the mower theft) could not be justified on the plain view doctrine, as asserted. (Id. ¶ 78.) United States v. White, 1:17-cv-94-1, 2017 WL 2633521 at *7-8 (M.D. N.C. June 19, 2017). Judge Biggs' opinion also noted that in his search warrant application, Defendant Hampshire had attributed misleading statements to White (from their November 9, 2016 interview).[7]White, 2017 WL 2633521, at *6 (“There is little question that the statement made by . . . Hampshire . . . was intended to mislead the judge into believing [Plaintiff] had admitted to stealing [the lawn mower].”). Judge Biggs found a Franks[8] hearing unnecessary, however, because she granted the motion to suppress based on the government's failure to demonstrate that the firearms were seized in plain view. Id. Following this decision, the Government dismissed all criminal charges against White. (Doc. 81 ¶ 98.)

         II. ANALYSIS

         A. Standard of Review

         Federal Rule of Civil Procedure 8(a)(2) provides that a complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Under Federal Rule of Civil Procedure 12(b)(6), “a complaint must contain sufficient factual matter . . . to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).[9] A claim is plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. In considering a Rule 12(b)(6) motion, a court “must accept as true all of the factual allegations contained in the complaint, ” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam), and all reasonable inferences must be drawn in the plaintiff's favor. Ibarra v. United States, 120 F.3d 472, 474 (4th Cir. 1997). “Rule 12(b)(6) protects against meritless litigation by requiring sufficient factual allegations ‘to raise a right to relief above the speculative level' so as to ‘nudge[] the[] claims across the line from conceivable to plausible.'” Sauers v. Winston-Salem/Forsyth Cty. Bd. of Educ., 179 F.Supp.3d 544, 550 (M.D. N.C. 2016) (alterations in original) (quoting Twombly, 550 U.S. at 555). “[T]he complaint must ‘state[] a plausible claim for relief' that permit[s] the court to infer more than the mere possibility of misconduct' based upon ‘its judicial experience and common sense.'” Coleman v. Md. Ct. App., 626 F.3d 187, 190 (4th Cir. 2010) (alterations in original) (quoting Iqbal, 556 U.S. at 679). Thus, mere legal conclusions are not accepted as true, and “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678.

         B. GCSO Defendants

         White alleges that the GCSO Defendants violated his Fourth and Fifth Amendment rights in both their official and individual capacities, maliciously prosecuted him, and trespassed on his property. Alternatively, he alleges that the GCSO Defendants violated his rights under the North Carolina Constitution. Each claim will be considered in turn.

         1. Section 1983 Official Capacity Claims

         White alleges that all GCSO Defendants, acting in their official capacity, deprived him of his Fourth and Fifth Amendment rights in violation 42 U.S.C. § 1983. (Doc. 81 ¶¶ 133-39.) GCSO Defendants argue that White has failed to sufficiently allege the existence of an official policy, practice, or custom to establish liability under an official capacity theory. (Doc. 37 at 11-12.) Furthermore, GCSO Defendants argue that the official capacity claims alleged against the individual officers must be dismissed because they are duplicative, as official capacity claims against agents are understood to be claims against the entity for which the agents act. (Id. at 11.)

         White's Fourth Amendment claim refers to Defendants Stall's and Wilkins' separate warrantless searches of White's residence, as well as Defendants Buskirk and Cook's use of the information gained from Stall's warrantless search even though both were aware the information had been gathered unlawfully. Apart from a general reference to a due process violation, White does not further articulate his Fifth Amendment claim. (Doc. 81 ¶¶ 134, 136.) Due process claims under the Fifth Amendment apply to federal actors, whereas due process claims under the Fourteenth Amendment apply to state actors. See United States v. Al-Hamdi, 356 F.3d 564, 573 n.11 (4th Cir. 2004). The standard of review for the two types of due process challenges does not differ. Id. The court therefore construes White's Fifth Amendment due process challenges as being brought under the Fourteenth Amendment's due process clause.

         To succeed on a § 1983 claim against a municipality or municipal agency, a plaintiff must demonstrate a constitutional violation as a result of official policy, practice, or custom. Monell v. Dep't of Soc. Servs., 436 U.S. 658, 694 (1978). A policy, practice, or custom for which a municipality may be held liable can arise in four ways: “(1) through an express policy, such as a written ordinance or regulation; (2) through the decisions of a person with final policymaking authority; (3) through an omission, such as a failure to properly train officers, that ‘manifest[s] deliberate indifference to the rights of citizens'; or (4) through a practice that is so ‘persistent and widespread' as to constitute a ‘custom or usage with the force of law.'” Lytle v. Doyle, 326 F.3d 463, 471 (4th Cir. 2003) (alteration in original) (quoting Carter v. Morris, 164 F.3d 215, 218 (4th Cir. 1999)).

         White has not plausibly stated a claim meeting this standard. His claims arise out of actions taken against him specifically; he has not alleged that any of the GCSO Defendants regularly engaged in similarly unlawful conduct as to other citizens. The factual allegations do not show that the existence of an express policy instituted by the GCSO, nor do they show Sheriff Barnes, as a final policymaking authority, made decisions that violated White's rights. Furthermore, there is no allegation regarding Barnes' failure to train officers, nor does White sufficiently plead facts indicating the existence of a persistent and widespread practice by the GCSO. White's incantation of the legal standard for a Monell claim is insufficient, as a mere conclusion of law. See Nemet Chevrolet, Ltd. v., Inc, 591 F.3d 250, 255 (4th Cir. 2009) (interpreting Iqbal v. Ashcroft, 556 U.S. 662 (2009) to mean that conclusory restatements of the elements of a claim are not considered in ruling on a 12(b)(6) motion to dismiss). Because White has not alleged facts sufficient to render such a claim under Monell plausible, his official capacity claims against Sheriff Barnes will be dismissed.

         The claims against the other GCSO officers in their official capacity must also be dismissed because suits against governmental officers in their official capacity are treated as suits against the government. Hafer v. Melo, 502 U.S. 21, 25 (1991). “Because the real party in interest in an official-capacity suit is the governmental entity and not the named official, ‘the entity's “policy or custom” must have played a part in the violation of federal law.'” Id. (quoting Kentucky v. Graham, 473 U.S. 159, 167 (1985)). Therefore, the “immunities available to the defendant in an official-capacity action are those that the governmental entity possesses.” Id. at 26. White has not alleged additional facts that would show these individual Defendants followed an official policy or custom in committing constitutional violations. White acknowledges that his official capacity § 1983 claims against the individual GCSO Defendants are duplicative. (Doc. 55 at 17.) Moreover, his claims suffer from an additional problem. “[S]tate officials, sued for monetary relief in their official capacities” are not “persons subject to suit under § 1983.” Id. (citing Will v. Mich. Dep't of State Police, 491 U.S. 58, 71 (1989)). White seeks only monetary damages for his official capacity claims, not injunctive or equitable relief.[10] For all these reasons, the § 1983 official capacity claims against the individual GCSO officers will be dismissed as well.

         2. Section 1983 Individual Capacity Claims

         White alleges Defendants Stalls, Buskirk, Cook, and Wilkins, in their individual capacity, violated his constitutional rights under § 1983. Specifically, White points to Stalls's and Wilkins's warrantless searches of his residence. As to Buskirk and Cook, he cites their use of information from Stalls's warrantless search -- knowing that it had been obtained illegally -- to target him in the lawn mower theft investigation. GCSO Defendants argue generally that their actions did not proximately cause White any injury. They also assert that Cook and Buskirk are entitled to qualified immunity.

         a. Stalls

         White alleges that Stalls violated his Fourth Amendment rights by performing a warrantless search of his residence while he and his family were away on vacation.

         The Fourth Amendment protects against “unreasonable searches and seizures.” U.S Const. amend. IV. Although GCSO Defendants do not contest that Stalls' search of White's home violated his Fourth Amendment rights, they seek dismissal on the contention that the search did not proximately cause White any harm. They argue that none of the warrants executed against White in the investigation used any of the information Stalls found in the garage. Rather, the warrants came from an independent source - namely, the Terrys - and as a result, White cannot recover compensatory damages from Stalls.

         Section 1983 creates tort liability “in favor of persons who are deprived of ‘rights, privileges, or immunities secured' to them by the Constitution.” Memphis Cmty. Sch. Dist. v. Stachura, 477 U.S. 299, 305-06 (1986) (quoting Carey v. Piphus, 435 U.S. 247, 253 (1978)). Section 1983 damages are intended to compensate an individual for the injuries they suffer as a result of a constitutional violation. Id. at 306. “Where no injury [is] present, no ‘compensatory' damages could be awarded.” Id. at 308. White's theory, however, asserts that the actions of the GCSO Defendants preceded any information the Terrys provided and that the GCSO Defendants' actions prompted law enforcement to investigate White. Even if Defendants are correct that White cannot show any compensatory damage -- a fact-bound determination not normally suitable for resolution at this early stage --Defendants acknowledge that he would nevertheless be entitled to nominal damages. See Carey, 435 U.S. at 266-67. Therefore, GCSO Defendants' motion as to White's § 1983 claim against Stalls in his individual capacity will be denied.

         b. Cook and Buskirk

         Because the GCSO Defendants' factual allegations against Defendants Cook and Buskirk are similar, the court will consider the motion to dismiss Plaintiff's § 1983 individual capacity claims as to those Defendants together.

         According to the second amended complaint, Stalls told Cook about his warrantless search of White's residence and gave Cook the serial No. from the mower stored in the garage. (Doc. 81 ¶ 43.) Cook then allegedly proceeded to search that serial No. in the GCSO database and provided the results -- indicating that the mower was stolen from Scott's Tractor -- to Buskirk. Buskirk, knowing that Stalls obtained the mower's serial No. during a warrantless search, passed the information garnered from Cook's investigation to other law enforcement officials in hopes that White would be further targeted by the investigation. (Id. ¶¶ 60, 141.) Thus, Cook and Buskirk allegedly violated White's constitutional rights by furthering the investigation against him, even though both knew the information had been discovered through unconstitutional means. (Id. ¶ 141.) The GCSO Defendants argue that the deputies' actions were not the proximate cause of White's alleged harms and, in the alternative, that both officers are entitled to qualified immunity.

         Qualified immunity shields government officials performing discretionary functions from personal liability for civil damages under § 1983, so long as “their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Ridpath v. Bd. of Governors Marshall Univ., 447 F.3d 292, 306 (4th Cir. 2006) (quoting Wilson v. Layne, 526 U.S. 603, 609 (1999)). Officials are entitled to immunity unless the § 1983 claim satisfies a two-prong test: (1) the allegations, if true, substantiate a violation of a federal statutory or constitutional right, and (2) the right was “clearly established” such that a reasonable officer would have known his acts or omissions violated that right. Id. Under the first prong, a plaintiff must sufficiently allege that an officer's actions amount to a violation of a federal statutory or constitutional right. Id. at 307. Under the second prong, an alleged constitutional right is clearly established if, according to preexisting law, “[t]he contours of the right [are] sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640 (1987). The phrase “clearly established” depends on the “level of generality at which the relevant ‘legal rule' is to be identified.” Id. at 639. Therefore, unlawfulness must be apparent, but the test does not require that “the very action in question has previously been held unlawful.” Wilson v. Layne, 526 U.S. 603, 615 (1999) (quoting Anderson, 483 U.S. at 640). This determination is to be assessed at the time an action occurred under an objective reasonableness standard. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The court may consider the prongs in either order, as a plaintiff's failure to satisfy either requires that the officer receive immunity. Pearson v. Callahan, 555 U.S. 223, 236 (2009).

         White's Fourth Amendment claim is predicated on these Defendants' use of information gained from Stalls' presumptively unconstitutional search. White cites United States v. Calandra, 414 U.S. 338, 347 (1974), in support of his contention that evidence traced to an unlawful search is excludable as fruit of the poisonous tree. (Doc. 55 at 17.) But Calandra cabined, not expanded, the application of the rule, refusing to extend the exclusionary rule to a grand jury witness and noting that the remedy was not “a personal constitutional right of the party aggrieved.” Calandra, 414 U.S. at 348. The parties have not cited any case that utilizes Calandra to show the existence of a Fourth Amendment violation as a basis for denying qualified immunity in a § 1983 claim, nor is the court aware of any.

         To the contrary, while White's understanding of the exclusionary rule is correct in so far as it applies to criminal cases, it is clear that the exclusionary rule and the fruit of the poisonous tree doctrine simply do not apply in civil cases. Ware v. James City Cty., 652 F.Supp.2d 693, 705-06 (E.D. Va. 2009) (“In other words, for this court to exclude the evidence of Plaintiff's criminal activity found by [the police officer] during the (albeit unreasonable) search would be to apply to exclusionary rule to this civil case, ” which the Supreme Court has never done.”) (quoting Nixon v. Applegate, No. 2:06-2560-CMC-RSC, 2008 WL 471677, at *4 (D.S.C. Feb. 19, 2008)), aff'd, 380 Fed.Appx. 274 (4th Cir. 2010); Townes v. City of New York, 176 F.3d 138, 149 (2d Cir. 1999) (noting that “the fruit of the poisonous tree doctrine is not available to assist a § 1983 claimant”). Thus, the “use of fruits of a past unlawful search or seizure ‘work[s] no new Fourth Amendment wrong.'” United States v. Leon, 468 U.S. 897, 906 (1984) (alteration in original) (quoting Calandra, 414 U.S. at 354).

         In light of the applicable law, it is apparent that White has failed to satisfy the first prong of the qualified immunity analysis. Therefore, Buskirk and Cook are entitled to qualified immunity as to these § 1983 individual capacity claims, which will be dismissed.

         c. Wilkins

         Wilkins accompanied Defendant Hampshire of the RPD to White's residence, where they performed a cursory search of the garage without a warrant, observing various property, including what appeared to be police equipment. (Doc. 81 ¶ 63.) GCSO Defendants make the same arguments for Wilkins as they do for Stalls. For the same reasons described in Stalls' analysis above -- namely that proximate cause is a fact-bound inquiry and GCSO Defendants acknowledge that at least a nominal damage claim exists -- GCSO Defendants' motion to dismiss White's § 1983 claim as to Wilkins will be denied.

         d. Due Process Claims

         White also generally alleges that the GCSO Defendants, in their individual capacities, violated his due process rights. Courts have consistently held, however, that the Due Process Clause “is not the proper lens through which to evaluate law enforcement's pretrial missteps” when the Fourth Amendment provides a textual source of constitutional protection. Safar v. Tingle, 859 F.3d 241, 245 (4th Cir. 2017); see also Graham v. Connor, 490 U.S. 386, 395 (1989); Evans v. Chalmers, 703 F.3d 636, 646 n.2 (4th Cir. 2012). White's § 1983 claims against Stalls and Wilkins clearly fall under the Fourth Amendment, as their actions were searches as understood by the Fourth Amendment. Any due process claims against them will therefore be dismissed.

         While the claims against Cook and Buskirk do not fall under the Fourth Amendment, they may fall under the Fourteenth Amendment's guarantee of due process, although White does not clarify whether the alleged violation is one of procedural or substantive due process. Procedural due process appears inapplicable given the circumstances of Cook and Buskirk's actions. See Snider Int'l Corp. v. Town of Forest Heights, Md., 739 F.3d 140, 145-46 (4th Cir. 2014) (describing the distinction between substantive and procedural due process). One's substantive due process rights are not violated “whenever someone cloaked with state authority causes harm.” Cty. of Sacramento v. Lewis, 523 U.S. 833, 848 (1998). Rather, the executive action in question must be “so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience.” Hawkins v. Freeman, 195 F.3d 732, 738 (4th Cir. 1999) (quoting Lewis, 523 U.S. at 847 n.8). The test remains “an admittedly imprecise one in formulation.” Id. at 741. “Of primary importance” is the fact that the standard derives ultimately from the “‘touchstone of due process [which] is protection of the individual against arbitrary action of government.'” Id. at 742 (quoting Lewis, 523 U.S. at 847). “As applied to claims of executive-act violations, it therefore seeks to determine as a threshold matter whether the executive conduct challenged was ‘fatally arbitrary' in this constitutional sense.” Id. Intentional conduct alone will not meet this test; rather, the conduct must be “intended to injure in some way unjustifiable by any government interest.” Id.

         White's allegations against Buskirk and Cook fail to meet this stringent standard. Cook allegedly investigated whether the serial No. discovered during an allegedly unlawful search related to a stolen mower, and Buskirk allegedly passed to other law enforcement the fact that the No. matched one of the stolen mowers. Their conduct was not unjustifiable by a government interest. Indeed, they were attempting to investigate a theft. Therefore, it cannot be said to be so outrageous as to shock the conscience and therefore violate substantive due process. Having failed to satisfy the first prong of a qualified immunity analysis that Buskirk's or Cook's actions violated his constitutional rights, White's due process claims against them will therefore be dismissed.

         3. Malicious Prosecution

         White alleges generally that GCSO Defendants maliciously prosecuted him in connection with the mower investigation.

         White has indicated in the case caption that the Defendants are sued in both their individual and official capacities, and he seeks compensatory and punitive damages. So, the court construes White to have sued all officers in both their official and individual capacity. Doe v. Durham Pub. Schs. Bd. of Edu., 1:17cv773, 2019 WL 331143, at *7 (M.D. N.C. Jan. 25, 2019) (quoting White v. Trew, 736 S.E.2d 166, 167 ( N.C. 2013)).

         An official-capacity state law claim against individual officers, however, is construed as a claim against the municipality or, in the GCSO's case, the Sheriff's office. See Meyer v. Walls,489 S.E.2d 880, 888 ( N.C. 1997) (municipality); Simmons, 122 F.Supp.3d at 267 (sheriff's office). These official capacity claims are “subject to the same jurisdictional” rules as the suits against the governmental entities. Meyer, 489 S.E.2d at 888. Thus, if the governmental entity enjoys sovereign ...

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