Kernea et al v. City of Charlotte et al

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
CIVIL ACTION NO. 3:22-CV-659-RJC-DCK
THIS MATTER IS BEFORE THE COURT on “Defendant City Of Charlotte’s Motion
To Dismiss Plaintiffs’ Second Amended Complaint” (Document No. 51). This motion has been
referred to the undersigned Magistrate Judge pursuant to 28 U.S.C. §636(b), and is now ripe for
disposition. Having carefully considered the arguments, the record, and applicable authority, the
undersigned will respectfully recommend that the motion be granted in part and denied in part.
I. BACKGROUND
Michael Kernea (“Mr. Kernea”) and Christy Kernea (“Mrs. Kernea”) (together,
“Plaintiffs”) initiated this action with the filing of a Complaint in the Superior Court of
Mecklenburg County, North Carolina on October 20, 2022, against the City of Charlotte (the
“City”) and Charlotte-Mecklenburg Police Officer Lee Lowery (“Officer Lowery”) (together,
“Defendants”). (Document No. 1-1, pp. 5-12). On December 8, 2022, Officer Lowery filed a
“Notice Of Removal To Federal Court…” (Document No. 1).
“Defendant Officer Lee Lowery’s Motion To Dismiss” (Document No. 6) was filed on
January 17, 2023, seeking to dismiss the claims against Officer Lowery in his individual capacity.
MICHAEL KERNEA and
CHRISTY KERNEA,
)
)
) MEMORANDUM AND
Plaintiffs, ) RECOMMENDATION
)
v. )
)
CITY OF CHARLOTTE and
LEE LOWERY,
)
)
)
Defendants. )
)
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The Honorable Robert J. Conrad, Jr. granted Defendant Lowery’s motion finding that “Lowery
never received proper service of process in his individual capacity,” and dismissing “Plaintiffs’
claims against Lowery in his individual capacity.” (Document No. 14, p. 8); see also (Document
No. 17).
“Defendant City Of Charlotte’s Partial Motion For Judgment On The Pleadings”
(Document No. 20) was filed on June 14, 2024. The Court ultimately allowed Plaintiffs to file an
Amended Complaint, and thus denied the City’s “…Motion For Judgment On The Pleadings” as
moot. See (Document No. 36). The Court directed that Plaintiffs were allowed “to file an
Amended Complaint that adds factual allegations related to emotional distress claims; however,
Plaintiffs shall not include claims that have already been dismissed by this Court or that are based
on respondeat superior.” (Document No. 36, p. 3) (emphasis added) (citing Document No. 17).
In that decision, the undersigned noted that the parties appeared to agree that “there is no
respondeat superior liability under Section 1983.” Id. (citing Document No. 28, p. 4).
Plaintiffs, represented by new counsel, eventually filed a “Second Amended Complaint”
(Document No. 50) (the “Amended Complaint”) on February 24, 2025. The Amended Complaint
alleges that Officer Lowery “violently approached, physically attacked, and arrested without
justification or probable cause” Mr. Kernea at Charlotte Douglas International Airport on March
8, 2020. (Document No. 50, p.1). “This violent attack was witnessed by Plaintiff Michael
Kernea’s wife, Plaintiff Christy Kernea, who suffered emotional distress as a result of Defendant
Lowery’s outrageous and unjustified conduct.” (Document No. 50, p. 2).
The gist of the allegations is that on March 8, 2020, at approximately 12:05 am, Officer
Lowery confronted Mr. Kernea at Charlotte-Douglas International Airport and yelled at Mr.
Kernea to move a stool Mr. Kernea had been sitting on near Starbucks, to the nearby 1897
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Restaurant. (Document No. 50, pp. 4-5). Mr. Kernea informed Officer Lowery that he had not
moved the stool from its purported original location and did not think he was responsible for
moving it anywhere. (Document No. 50, p. 5). Officer Lowery then charged in the direction of
Mr. Kernea and began yelling at him and “demanded that if Mr. Kernea ‘said one more word’ that
he was ‘going to jail.’” Id. “Officer Lowery then drew his arm back and with full force punched
Mr. Kernea in his face, striking him just below his nose.” (Document No. 50, pp. 5-6). According
to the Amended Complaint, Officer Lowery then “violently grabbed Mr. Kernea by the waist,
lifted him the air, and slammed him to the ground, crushing Mr. Kernea’s shoulder, face, and upper
extremities to the cold concrete floor.” (Document No. 50, p. 6).
Plaintiffs’ allegations further describe that Officer Lowery handcuffed Mr. Kernea and
“placed Mr. Kernea under arrest and charged him for disorderly conduct and resisting a public
officer.” (Document No. 50, pp. 6-7). Mr. Kerena was processed at the jail in Charlotte and then
released after posting bail. (Document No. 50, p. 7). The Amended Complaint further asserts that
Officer Lowery “had turned off his body warn camera and did not record his interaction” with Mr.
Kernea. (Document No. 50, p. 7).
The Amended Complaint reports that Mr. Kernea received a letter from the Charlotte-
Mecklenburg Police Department on July 27, 202, informing him that their investigation concluded
that “Officer Lowery initiated needless contact with Mr. Michael Kernea inside the Charlotte-
Douglas International Airport” and that “Officer Lowery did not have probable cause to arrest Mr.
Kernea.” (Document No. 50, pp. 8-9).
Based on the foregoing allegations, Plaintiffs’ Amended Complaint asserts the following
claims: (1) Fourth Amendment Violation and Deprivation of Rights – 42 U.S.C. § 1983 – Mr.
Kernea against Officer Lowery in his official capacity; (2) Fourth Amendment – 42 U.S.C. § 1983
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- Defendant City; (3) Prosecution without Probable Cause and Fabrication of False Evidence in
Violation of the Fourth Amendment under - 42 U.S.C § 1983 – Mr. Kernea against Officer Lowery
in his official capacity; (4) Negligence - North Carolina Common Law – Plaintiffs against Officer
Lowery in his official capacity; (5) Negligence of Defendant City – Respondeat
Superior/Vicarious Liability - Plaintiffs against Officer Lowery in his official capacity and the
City; (6) North Carolina State Law Malicious Prosecution – Plaintiffs against the City and Officer
Lee Lowery in his official capacity; (7) Assault and Battery – Mr. Kernea against Officer Lowery
in his official capacity; (8) Negligent Training, Negligent Supervision, and Negligent Retention –
Plaintiffs against the City; (9) Negligent Infliction of Severe Emotional Distress – Mrs. Kernea
against Officer Lowery in his official capacity; (10) Intentional Infliction of Emotional Distress -
Mrs. Kernea against Officer Lowery in his official capacity; and (11) Indemnification – Plaintiffs
against Officer Lowery in his official capacity. (Document No. 50, pp. 10- 23).
“Defendant City Of Charlotte’s Motion To Dismiss Plaintiffs’ Second Amended
Complaint” (Document No. 51) was filed on March 10, 2025. Defendant City, “inclusive of
Defendant Officer Lee Lowery in his official capacity,” seeks to dismiss the entirety of the
Amended Complaint pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which
relief can be granted. (Document No. 51). “Plaintiffs Consolidated Memorandum In Opposition
To Defendant’s Rule 12(b)(6) Motions To Dismiss” (Document No. 55) was filed on March 24,
2025; and “Defendant Officer Lee Lowery’s Reply Brief” (Document No. 56)1 and “Defendant
City Of Charlotte’s Reply…” (Document No. 57) were filed on March 31, 2025.
The pending motion has now been fully briefed and is ripe for review and a recommended
disposition to the presiding District Judge.
1 Defendant Officer Lowery filed a “…Reply Brief” (Document No. 56) even though he did not join
“Defendant City Of Charlotte’s Motion To Dismiss….”
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II. STANDARD OF REVIEW
A motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) tests the “legal sufficiency of the
complaint” but “does not resolve contests surrounding the facts, the merits of a claim, or the
applicability of defenses.” Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992);
Eastern Shore Markets, Inc. v. J.D. Assoc. Ltd. Partnership, 213 F.3d 175, 180 (4th Cir. 2000). A
complaint attacked by a Rule 12(b)(6) motion to dismiss will survive if it contains “enough facts
to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also, Robinson v.
American Honda Motor Co., Inc., 551 F.3d 218, 222 (4th Cir. 2009). “A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678.
“Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements,
do not suffice.” Id.
The Supreme Court has also opined that
Federal Rule of Civil Procedure 8(a)(2) requires only “a short
and plain statement of the claim showing that the pleader is entitled
to relief.” Specific facts are not necessary; the statement need only
“‘give the defendant fair notice of what the ... claim is and the
grounds upon which it rests.’” In addition, when ruling on a
defendant’s motion to dismiss, a judge must accept as true all of the
factual allegations contained in the complaint.
Erickson v. Pardus, 551 U.S. 89, 93-94 (2007) (quoting Twombly, 550 U.S. at 555-56).
“Although for the purposes of this motion to dismiss we must take all the factual allegations
in the complaint as true, we are not bound to accept as true a legal conclusion couched as a factual
allegation.” Papasan v. Allain, 478 U.S. 265, 286 (1986). The court “should view the complaint
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in the light most favorable to the plaintiff.” Mylan Labs, Inc. v. Matkar, 7 F.3d 1130, 1134 (4th
Cir. 1993).
III. DISCUSSION
As noted above, Defendant City seeks the dismissal of all of Plaintiff’s eleven (11) claims
in the Amended Complaint. (Document No. 52, p. 3). The City contends that “the Court should
dismiss Mr. Kernea’s § 1983 claims because he failed to allege a policy, custom, or practice of the
City that caused or contributed to his alleged injuries.” Id. The City further contends that the
Amended Complaint “fails to plead the necessary elements to state facially plausible claims for
negligence, negligent training, supervision, and retention, malicious prosecution, assault and
battery, negligent or intentional infliction of emotional distress, or indemnification” and that
punitive damages are “unavailable as a matter of law in this litigation.” Id. The undersigned will
address the arguments regarding Plaintiff Michael Kernea’s § 1983 and/or duplicative claims and
Plaintiffs’ state law claims separately below.
A. Duplicative Claims / Section 1983 Claims
In support of dismissal, Defendant City first notes that “[t]he only claims remaining in the
case are claims against Officer Lowery in his official capacity and claims against the City of
Charlotte.” (Document No. 52, p. 5). The City then argues that the Amended Complaint “fails to
comprehend, [that] claims against Officer Lowery in his official capacity are claims against the
City of Charlotte.” Id. (citing Kentucky v. Graham, 473 U.S. 159, 166 (1985) (“[A]n official-
capacity suit is, in all respects other than name, to be treated as a suit against the entity.”); Love-
Lane v. Martin, 355 F.3d 766, 783 (4th Cir. 2004) (official capacity Section 1983 claim duplicative
where municipality already named as defendant) and Epps v. Duke Univ., 468 S.E.2d 846, 850
(N.C. App. 1996) (the same is true with state law claims against public officials)).
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Based on the foregoing, Defendant City concludes that Mr. Kernea’s first, third, and fourth
claims against Officer Lowery in his official capacity “should be dismissed as duplicative of the
same claims against the City.” Id.
Next, Defendant City argues that the § 1983 claims (the Amended Complaint’s first,
second, and third claims) fail because the Amended Complaint does not include allegations “about
a policy, practice, or custom of the city that allegedly caused [Mr. Kernea’s] injuries.” (Document
No. 52, p. 6). The City notes that “[i]t is hornbook law that a ‘municipality cannot be held liable
solely because it employs a tortfeasor.’” Id. (quoting Monell v. Dep’t of Social Service of City of
N.Y., 436 U.S. 658, 691 (1978). The City further notes that “[i]nstead, it is when execution of a
government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts
may fairly be said to represent official policy, inflicts the injury that the government as an entity
is responsible under § 1983.” Id. (quoting Monell, 436 U.S. at 694).
Defendant City argues that the Amended Complaint asserts § 1983 claims, “but identifies
no policy, decision, omission, or practice of the City that led to the injury.” Id. The City concludes
that:
Plaintiffs needed to allege that Officer Lowery’s actions were
pursuant to City policy for Plaintiffs’ § 1983 claims to survive.
Everything in the Complaint says exactly the opposite—that Officer
Lowery’s actions violated City policy and that he was punished for
that.
(Document No. 52, p. 7).
Plaintiffs’ “…Memorandum In Opposition…” objects to the dismissal of any of Plaintiffs’
claims. (Document No. 55). Plaintiffs’ reasoning is not a model of clarity, but it appears that
Plaintiffs acknowledge the holding in Monell that a “municipality cannot be held liable solely
because it employs a tortfeasor.” (Document No. 55, p. 11) (quoting Monell, 436 U.S. at 691).
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However, Plaintiffs seem to suggest that they have established “a policy or custom for which a
municipality may be held liable” by alleging in the Amended Complaint that “Defendants’ City
Manager ‘is the final policymaker.’” Id. (citing Monell, 436 U.S. at 694 and Document No. 50, ¶
62). Defendant notes that the Amended Complaint alleges that “Defendant City’s Manager and
Chief of Police ‘fully ratified the actions of Defendant Lowery in the unlawful arrest, unlawful
seizure, and excessive use of force [against] Michael Kernea and the encounter that lead to his
eventual brutal attack.’” Id. (quoting Document No. 50, ¶62).
Plaintiffs argue that Officer Lowery “was following his training regarding searches and
seizures” but then acknowledge that Officer Lowery was “‘reprimanded’ and given additional
remedial training” after violating Mr. Kernea’s Fourth Amendment rights.” (Document No. 55,
pp. 11-12). Plaintiffs further argue that “Lowery followed protocol regarding City policy made by
the City’s final-decision makers” and that “these specific policy/policies resulted [in] the
Constitutional injuries to Mr. Kernea.” (Document No. 55, p. 12).
Next, Plaintiffs assert that the “claims against Officer Lowery in his official capacity are
not duplicative,” but then quote the same caselaw relied on by Defendant City: “‘the real party in
interest in an official-capacity suit is the governmental entity and not the named official.’” Id.
(quoting Graham, 473 U.S. at 166). Plaintiffs later argue that “there is a viable Monell claim
against Defendant City since” the Amended Complaint “specifically alleges that the Constitutional
Violation was ratified by and a result of a decision officially adopted and promulgated by the City
Manager as a final policymaker.” (Document No. 55, p. 13) (quoting Document No. 50, ¶¶ 37,
61-66, 83, 113).
“Defendant Officer Lee Lowery’s Reply Brief” states that Officer Lowery, “in an
abundance of caution . . . respectfully moves the Court for an order prohibiting Plaintiffs from
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asserting or pursuing claims of personal liability or individual capacity liability against Defendant
Lowery.”2 (Document No. 56, p. 1) (emphasis added). Apparently, Officer Lowery construes
“Plaintiff’s Consolidated Memorandum In Opposition…” as evidence that Plaintiffs are
“continuing to pursue theories of individual capacity liability and/or personal liability.”
(Document No. 56, p. 4). Officer Lowery contends that statements made in the opposition brief
are confusing and thus argues to the Court that any claims by Plaintiffs asserting individual
capacity or personal liability against Officer Lowery are misplaced. (Document No. 56, pp. 4-5).
In addition, Officer Lowery contends that punitive damages are not available against him
personally or individually. (Document No. 56, p. 5).
“Defendant City Of Charlotte’s Reply…” argues that Plaintiffs’ Amended Complaint
“alleges no facts about ratification; Plaintiffs’ response brief identifies no such policy, practice,
or custom, and it never says how the City Manager allegedly ratified the conduct.” (Document
No. 57, p. 2). Defendant City notes that the alleged facts in the Amended Complaint, contrary to
Plaintiffs’ arguments now, show that “the City found Officer Lowery’s conduct to be unjustified
and violative of City policy,” and therefore, “the City suspended him without pay for that
unjustified conduct.” Id. (citing Document No. 50, ¶¶ 48, 52, 71).
Defendant City’s reply brief also reasserts that all duplicative claims should be dismissed.
(Document No. 57, p. 5). Specifically, the City argues that negligence and § 1983 claims against
2 The undersigned is not persuaded that the filing of “Defendant Officer Lee Lowery’s Reply Brief” was
necessary or appropriate. Contrary to Defendant’s arguments, the Amended Complaint does not assert any
individual capacity claims against Officer Lowery. (Document No. 50, pp. 10-23). In fact, each claim
against Officer Lowery explicitly states “in his official capacity.” Id. Any arguably confusing or
ambiguous statements in Plaintiffs’ opposition brief cannot, and did not, suddenly revive individual
capacity claims against Officer Lowery. Moreover, neither Officer Lowery, nor Plaintiffs, are permitted to
include a motion in a responsive brief. See LCvR 7.1(c)(2) (“Motions shall not be included in responsive
briefs”).
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Officer Lowery in his official capacity are the same as the negligence and § 1983 claims against
Defendant City. (Document No. 57, p. 5).
The undersigned finds Defendant City’s arguments for dismissal of Claims 1-4 to be most
persuasive. In short, the undersigned agrees that Plaintiffs’ first four claims are duplicative and/or
prohibited by well-established precedent that the City cannot be held liable under § 1983 for
Officer Lowery’s actions under the facts as alleged in the Amended Complaint. Therefore, the
undersigned will recommend that Claims 1-4, be dismissed.
First, the undersigned agrees that Plaintiffs’ official capacity claims against Officer Lowery
(Claims 1, 3, and 4) are properly construed as claims against Defendant City, and are therefore
unnecessary and duplicative as to Officer Lowery. See Puranda v. City of Charlotte, 3:24-CV-
864-RJC-SCR, 2024 WL 4472364 at *5 (W.D.N.C. Sept. 9, 2024) (“The City is a named
Defendant in this action, and thus, Plaintiff’s official capacity claims are duplicative and must be
dismissed”). Moreover, Plaintiff’s § 1983 claims (Claims 1, 2, and 3) depend on a respondeat
superior (“let the superior make answer”) theory of liability that is unavailing.
To the extent that the Plaintiff is attempting to hold the Defendants
liable for his § 1983 claims under a respondeat superior theory, such
claims cannot proceed because respondeat superior does not apply
to § 1983 actions. See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009)
(vicarious liability is inapplicable to § 1983 actions); Shaw, 13 F.3d
at 798 (§ 1983 liability may be premised on supervisory liability,
but not respondeat superior).
Allen v. Bond, 5:22-CV-134-MR, 2023 WL 438801, at *7 (W.D.N.C. Jan. 25, 2023). Therefore,
Plaintiffs’ §1983 claims, fail to state a claim upon which relief may be granted.
Another recent decision from this Court is also instructive in this case. In Morgan v. City
of Charlotte, the Honorable Kenneth D. Bell opined:
A municipality is considered a “person” and thus is subject to suit
for a violation of Section 1983. Monell v. Dep't of Soc. Servs., 436
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U.S. 658, 690, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978); Hunter v.
Town of Mocksville, N. Carolina, 897 F.3d 538 (4th Cir. 2018). That
said, “a municipality cannot be held liable solely because it employs
a tortfeasor—or, in other words, a municipality cannot be held
liable under § 1983 on a respondeat superior theory.” Monell,
436 U.S. at 691, 98 S.Ct. 2018. Rather, “it is when execution of a
government's policy or custom, whether made by its lawmakers or
by those whose edicts or acts may fairly be said to represent official
policy, inflicts the injury that the government as an entity is
responsible under § 1983.” Id. at 694, 98 S.Ct. 2018.
Morgan v. City of Charlotte, 3:22-CV-003-KDB-DCK, 2023 WL 4002524 at *12 (W.D.N.C. June
13, 2023) (emphasis added).
Here, Plaintiffs have not established Monell liability as to any of their §1983 claims.
“Under Monell, four theories can be potentially pursued under
Section 1983 to show a city’s unlawful custom, policy, or practice:
(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 [employees], 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.”
Morgan v. City of Charlotte, 2023 WL 4002524, at *12. Plaintiffs fail to adequately allege an
unlawful custom, policy, or practice that caused a deprivation of their rights. At most, Plaintiffs
have alleged that “the City Manager and Chief of Police fully ratified the actions of Defendant
Lowery in the unlawful arrest, unlawful seizure, and excessive use of force”; however, this alleged
“ratification” is inconsistent with other allegations by Plaintiffs regarding the City and/or the
Charlotte-Mecklenburg Police Department’s (“CMPD”) conduct. (Document No. 50, p. 11). For
example, Plaintiffs allege that Mr. Kernea received a letter from CMPD on July 27, 2020, that
stated, inter alia, that: (1) “Officer Lowery initiated needless contact with Mr. Michael Kernea”;
“Officer Lowery did not have probable cause to arrest Mr. Kernea”; and “the use of force upon
Mr. Kernea was NOT JUSTIFIED.” (Document No. 50, pp. 8-9). Plaintiffs further note that as a
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result of the underlying incident, Officer Lowery was suspended without pay and required to
participate in remedial training. (Document No. 50, p. 9). Contrary to ratifying Officer Lowery’s
conduct, Plaintiffs’ own allegations indicate that Defendant City found Officer Lowery’s conduct
to be unacceptable and reprimanded Officer Lowery for his actions against Mr. Kernea.
Claim 4 asserts a negligence claim against Officer Lowery in his official capacity and is
“also brought against the Defendant City of Charlotte.” (Document No. 50, pp. 14-15). Moreover,
Claim 5 asserts a negligence claim against Defendant City based on the same allegations.
Based on the foregoing, the undersigned will respectfully recommend that the motion to
dismiss be granted as to Claims 1-4, as duplicative of other claims against Defendant City and/or
unavailing because Plaintiffs have failed to plausibly allege liability under Monell.
B. State Law Claims
Next, the undersigned considers Defendant City’s request for dismissal of Plaintiffs’
remaining claims brought under state law.
1. Negligence (Claim 5)
Defendant City first argues that Plaintiffs cannot bring two claims against the City for
negligence, apparently referring to Claim 4 which is brought against Officer Lowery in his official
capacity, and Claim 5 which is brought against Defendant City. (Document No. 52, p. 7); see also
(Document No. 50, pp. 14-17).
As noted above, the undersigned recommends that Claim 4 be dismissed as duplicative and
will, therefore, focus on Claim 5 here. Notably, Claim 5 alleges “Negligence of Defendant City –
Respondeat Superior/Vicarious Liability.” (Document No. 50, p. 15). Plaintiffs assert that “the
City is liable as principal for the torts committed by its agents in the course and scope of their
employment under the doctrine of respondeat superior.” (Document No. 50, p. 16).
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Next, Defendant City suggests that the negligence claim(s), to the extent it is brought by
Mrs. Kernea, cannot survive. Defendant contends that Plaintiffs have not adequately alleged the
essential elements of duty, breach, causation, and damages, as to Mrs. Kernea. Defendant also
contends that the allegations, as to Mr. Kernea, “do not follow from one another.” (Document No.
52, p. 7). However, Defendant City does not specifically cite to Claim 5.
In response, Plaintiffs argue that they have adequately alleged the necessary elements of a
negligence action and further argue that Defendant City is liable for the acts of Officer Lowery.
(Document No. 55, p. 18). Plaintiffs contend that “Defendant City has waived governmental
immunity from torts pursuant to N.C.G.S. § 160A-485.5.” Id. (citing Document No. 55-2).
Plaintiffs then argue that as Officer Lowery’s employer, Defendant City is liable for his conduct
under a theory of respondeat superior or vicarious liability. (Document No. 55, p. 19) (citing
Medlin v. Bass, 327 N.C. 587, 592 (1990) (“vicarious liability, in turn, requires that the employee's
tortious act was either expressly authorized; committed within the scope of employment and in
furtherance of his master’s business ...; or [was] ratified by the principal.”)).
Plaintiffs further argue that alleged facts indicate that the torts committed by Officer
Lowery were within in the scope of his employment: he was an on-duty CMPD officer, at a post
assigned to him by CMPD at the Charlotte airport; he threatened to arrest, then did arrest Mr.
Kernea, seized him, placed him in handcuffs and charged him with violations of law. Id.
In reply, Defendant concludes “that Mr. Kernea’s negligence claims do not make sense or
simply lack allegations necessary to satisfy the elements of those claims.” (Document No. 57).
Defendant again declines to make any specific reference to, or rebuttal regarding, Claim 5.
The undersigned first notes that Defendant City does not argue that it cannot be held liable
under theories of respondeat superior or vicarious liability for Plaintiffs state law claims.
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Moreover, relevant caselaw seems to establish that a municipality may be found vicariously liable
for intentional torts and negligence. See A.G. v. Fattaleh, 5:20-CV-165-KDB-DCK, 614
F.Supp.3d 204, 233-234 (W.D.N.C. 2022) (Plaintiff entitled to proceed to trial on vicarious claim
against the City “sounding in negligence”) (citing Wilkerson v. Duke Univ., 229 N.C.App. 670,
(2013) (holding that a law enforcement officer’s employer may be vicariously liable for that
officer's false imprisonment, assault, and battery)). See also Matthews v. Food Lion, LLC, 205
N.C. App. 279, 281 (2010) (“Generally, employers are liable for torts committed by their
employees who are acting within the scope of their employment under the theory of respondeat
superior.”).
After careful review of the Amended Complaint and the parties’ arguments, the
undersigned is persuaded that Plaintiffs have alleged “enough facts to state a claim to relief that is
plausible on its face” as to Claim 5 for negligence against Defendant City, and therefore, that claim
should survive at this stage of the litigation. Iqbal, 556 U.S. at 678. The undersigned will
recommend that the motion to dismiss be denied as to Claim 5 for negligence against Defendant
City.
2. Malicious Prosecution (Claim 6)
Defendant City argues that Plaintiffs’ malicious prosecution claim fails because it is
conclusory. (Document No. 52, p. 8). Defendant notes that the Complaint does not allege “what
Officer Lowery presented to a magistrate or in what way the information was fabricated.”
Defendant concludes that the claim is nothing but a threadbare recital of the elements of a cause
of action for malicious prosecution with no alleged facts underlying it.” Id.
In response, Plaintiffs note that the Amended Complaint alleges that Officer Lowery, in
violation of State Law and CMPD policy, turned off his body-worn camera that would have
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captured his violent assault against Mr. Kernea and that he then escorted Mr. Kernea in handcuffs
to a CMPD squad car and processed him at the nearby jail in Charlotte under charges of disorderly
conduct and resisting arrest. (Document No. 55, p. 5) (citing Document No. 50, ¶¶ 73, 38-39 and
41). The Amended Complaint also alleges that the criminal charging documents show that Officer
Lowery presented false statements to the Magistrate. (Document No. 50, ¶ 73). Plaintiffs allege
that “Officer Lowery knew that Mr. Kernea did not ‘resist arrest’ and did not engage[] in
‘disorderly conduct,’ as later acknowledged by CMPD after an investigation. Id. at ¶ 74.
Moreover, Plaintiffs note that “undisputed video surveillance” from the airport shows “Officer
Lowery’s unjustifiable, unreasonable, and brutal conduct,” which apparently contradicts the
charging documents and/or statements Officer Lowery made to the Magistrate. (Document No.
55, p. 5).
Plaintiffs also effectively argue that “malice can be inferred from the want of probable
cause alone” (Document No. 55, p. 16) (quoting Lopp v. Anderson, 795 S.E.2d 770, 779)).
Plaintiffs contend that “Officer Lowery knew that his efforts lacked probable cause, and his failure
to disclose this exculpatory evidence to the magistrate displayed a reckless disregard for Mr.
Kernea’s Constitutional rights.” (Document No. 55, pp. 16-17).
In reply, Defendant argues that the malicious prosecution claim should fail because
Plaintiffs have not specifically identified the “fabricated evidence” provided to the state court
magistrate judge. (Document No. 57, p. 3).
The undersigned first notes instructive caselaw from a recent decision by the Honorable
Susan R. Rodriguez.
Under North Carolina law, a plaintiff bringing a malicious
prosecution claim must show that the defendant “(1) initiated or
participated in the earlier proceeding, (2) did so maliciously, (3)
without probable cause, and (4) the earlier proceeding ended in
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favor of the plaintiff.” Seguro-Suarez ex rel. Connette v. Key Risk
Ins. Co., 819 S.E.2d 741, 750 (N.C. Ct. App. Sept. 4, 2018) (quoting
Turner v. Thomas, 794 S.E.2d 439, 444 (N.C. 2016)); Braswell v.
Medina, 805 S.E.2d 498, 507 (N.C. Ct. App. 2017) (quoting Lopp
v. Anderson, 795 S.E.2d 770, 780 (N.C. Ct. App. 2016)) (reversing
lower court’s dismissal of malicious prosecution claim where
plaintiff “adequately alleged malice by pleading facts” that the
Officers lacked probable cause). The Complaint sufficiently alleges
a malicious prosecution claim because Plaintiff alleges Officer
Scarborough initiated charges against Plaintiff and participated in
later proceedings, allegedly without probable cause and by making
false statements, which ended in Plaintiff’s favor.
Reid v. Town of Dallas, No. 3:23-CV-146-RJC-SCR, 2024 WL 4472362, at *11 (W.D.N.C. Aug.
12, 2024), adopted by Reid v. Scarborough, 2024 WL 4274696 (W.D.N.C. Sept. 24, 2024).
Although a little more clarity and detail in Plaintiffs’ allegations might have been helpful,
the undersigned finds that Plaintiffs have more than adequately alleged facts to support a plausible
claim of malicious prosecution that satisfies the elements set forth above. Viewed in the light most
favorable to Plaintiffs, the Complaint alleges that Officer Lowery maliciously arrested and charged
Mr. Kernea with resisting arrest and disorderly conduct – charges that are apparently unsupported
by video evidence and that were summarily dismissed by the District Attorney’s Office.
Based on the foregoing, the undersigned will recommend that the motion to dismiss be
denied as to Claim 6 for malicious prosecution against Defendant City.
3. Assault and Battery (Claim 7)
Defendant City next argues that Plaintiffs’ assault and battery claim should be dismissed
“because the City is only liable for its employee’s actions to the extent those actions are committed
within the scope of and furtherance of the City’s business.” (Document No. 52, p. 8) (citing
Medlin, 327 N.C. at 592-593). Defendant further argues that Officer Lowery “is not alleged to
have had any law enforcement purpose in requesting that Mr. Kernea move a stool then allegedly
assaulting him for not moving the stool.” Id. Defendant asserts that “[u]njustifiably assaulting
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and battering someone for no reason related to enforcing the law is clearly not within the scope of
an employee’s employment.” (Document No. 52, pp. 8-9) (citing Brown v. Burlington Indus.,
Inc., 378 S.E.2d 232, 235 (N.C. App. 1989)).
In response, Plaintiffs contend that Officer Lowery was “more than ‘on duty,’” he was
“clearly performing a law enforcement function.” (Document No. 55, p. 20). However, Plaintiffs
do not seem to provide any more detailed analysis of the assault and battery claim.
Defendant’s reply brief suggests that this claim should be dismissed because Plaintiffs have
not identified “the law enforcement function Officer Lowery was allegedly performing.”
(Document No. 57, p. 3).
The undersigned first notes the requisite elements of assault and battery claims.
The elements of assault under North Carolina law are: (1) intent,
(2) offer of injury, (3) reasonable apprehension, (4) apparent ability,
and (5) imminent threat of injury. Wilkerson v. Duke Univ., 748
S.E.2d 154, 159 (N.C. Ct. App. 2013) (quoting Hawkins v.
Hawkins, 400 S.E.2d 472, 475 (N.C. Ct. App. 1991) aff’d, 417
S.E.2d 447 (N.C. 1992)). The elements of battery under North
Carolina law are “(1) the defendant intentionally cause[d] bodily
contact with the plaintiff; (2) the bodily contact caused physical
pain or injury; and (3) the bodily contact occurred without the
plaintiff's consent.” Simmons v. Wiles, 845 S.E.2d 112, 115 (N.C.
Ct. App. 2020) (citing Andrews v. Peters, 330 S.E.2d 638, 640 (N.C.
Ct. App. 1985)).
Jordan v. City of Charlotte, No. 3:23-CV-152-RJC-SCR, 2023 WL 12087284, at *4 (W.D.N.C.
Dec. 28, 2023).
Here, there does not seem to be any argument that Plaintiffs have failed to adequately allege
the elements of a plausible claim for assault and battery; rather, Defendant City relies on an
argument that the alleged tort(s) was outside the scope of Officer Lowery’s employment and,
therefore, Defendant City cannot be held liable. See (Document No. 52, pp. 8-9).
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The undersigned notes that the Complaint alleges that the assault and battery occurred
while Officer Lowery was on duty at the Charlotte airport, as assigned by the CMPD, and in the
course of Officer Lowery conducting an arrest of Mr. Kernea. Viewing Plaintiffs’ allegations in
the most favorable light, the undersigned is persuaded that it would be premature to dismiss the
assault and battery claim. It appears that this issue presents an issue of fact that should most likely
be a jury question, as the Honorable Kenneth D. Bell opined under similar circumstances:
While it is true, as the district court recognized, that under the North
Carolina law of respondeat superior, an intentional tort is “rarely
considered to be within the scope of an employee’s employment,”
Medlin v. Bass, 327 N.C. 587, 398 S.E.2d 460, 464 (1990)
(quotation marks and citation omitted), “rarely” does not mean
“never.” And in North Carolina, the scope-of-employment question
is ordinarily one for the jury. . . .
North Carolina case law discloses numerous instances in which the
issue of whether an intentional assault by an employee was within
the scope of employment so as to impose vicarious liability on the
employer was determined to be a jury question.
A.G. v. Fattaleh, 614 F.Supp.3d 204, 233 (W.D.N.C. 2022) (citations omitted). See also Wilkerson
v. Duke Univ., 229 N.C. App. 670, 676 (2013) (holding that a law enforcement officer’s employer
may be vicariously liable for that officer’s false imprisonment, assault, and battery).
Based on the foregoing, the undersigned will respectfully recommend that the motion to
dismiss be denied as to Plaintiffs’ assault and battery claim (Claim 7).
4. Negligent Training, Supervision, and Retention (Claim 8)
Next Defendant City alleges that Claim 8 should be dismissed because the Amended
Complaint is “devoid of any allegation about how the City currently trains or supervises its
employees or the ways in which the training and supervision were deficient.” (Document No. 52,
p. 9). As such, Defendant argues that the claim is “nothing but a conclusory recitation of
elements.” Id. Regarding negligent retention, Defendant City asserts that “[t]he fact that Officer
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Lowery remained a City employee after the incident of course has nothing to do with the injuries
alleged in this case.” (Document No. 52, p. 10).
In opposition to Defendant’s motion, Plaintiffs suggest that Defendant failed to keep
Officer Lowery properly trained. (Document No. 55, p. 7). Plaintiffs seem to conclude that
because Officer Lowery was required to complete additional training after the underlying incident
with Mr. Kernea, he had not been properly trained before the incident. Id.
In reply, Defendant notes that a “negligent training claim requires a description of what
training the officer received and how it was deficient” and “a negligent supervision claim requires
some allegation about an employer’s preexisting knowledge of the employee’s incompetency.”
(Document No. 57, p. 2) (citing Clemmons v. City of Greensboro, 2020 WL 2850981, at *3
(M.D.N.C. June 2, 2020) and Smith v. Privette, 495 S.E.2d 395, 398 (N.C. App. 1998)). Defendant
then reasserts that “the negligent retention claim is non-sensical” because there is not alleged injury
relating to Officer Lowery being retained as an employee after the incident with Mr. Kernea.
(Document No. 57, p. 3).
Under North Carolina law to support a claim of negligent
retention and supervision against an employer, a plaintiff must
prove: “(1) the specific negligent act on which the action is founded
... (2) incompetency, by inherent unfitness or previous specific acts
of negligence, from which incompetency may be inferred; and (3)
either actual notice to the master of such unfitness or bad habits, or
constructive notice, by showing that the master could have known
the facts had he used ordinary care in oversight and supervision, ...;
and (4) that the injury complained of resulted from the
incompetency proved.”
A.G. v. Fattaleh, 614 F.Supp.3d 204, 239 (W.D.N.C. 2022) (quoting Moricle v. Pilkington, 120
N.C. App. 383, 386, (1995)).
The undersigned agrees that the Amended Complaint lacks sufficient factual allegations to
support a claim for negligent training, supervision, and/or retention. There is no allegation that
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Defendant City had actual or constructive notice of “inherent unfitness or previous specific acts of
negligence” as to Officer Lowery. As such, the undersigned will recommend that the pending
motion to dismiss be granted as to Claim 8.
5. Negligent and Intentional Infliction of Severe Emotional Distress (Claims 9 and 10)
Next, Defendant City argues that Plaintiff Christy Kernea’s emotional distress claims
(Claims 9 and 10) fail “because there are no ‘factual allegations regarding the type, manner, or
degree of severe emotional distress [Plaintiffs] claim[] to have experienced.’” (Document No. 52,
p. 10) (quoting Horne v. Cumberland Cnty. Hosp. Sys., Inc., 746 S.E.2d 13, 20 (N.C. App. 2013)).
Defendant notes that “[p]roperly alleging severe emotional distress requires alleging ‘any
emotional or mental disorder, such as, for example, neurosis, psychosis, chronic depression,
phobia, or any other type of severe and disabling emotional or mental condition which may be
generally recognized and diagnosed by professionals trained to do so.’” (Document No. 52, pp.
10-11) (quoting Johnson v. Ruark Obstetrics & Gynecology Assoc., P.A., 327 N.C. 283, 304
(1990)). Here, Defendant contends that Plaintiff’s allegations that she witnessed a “horrifying
event” and experienced “severe emotional distress” are insufficient. (Document No. 52, p. 11)
(citing Document No. 50, ¶¶ 122, 126).
In response, Plaintiffs describe how shocking and horrifying it was for Mrs. Kernea to
witness the assault on her husband, and again alleges that she “suffered severe emotional distress.”
(Document No. 55, p. 4). Notably, the Amended Complaint allege that Mrs. Kernea “suffered
severe and disabling anxiety, trauma, and [w]as treated [by] mental health professionals for
emotional distress and injuries sustained from what Plaintiff describes as a horrifying event.”
(Document No. 50, ¶ 123).
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In further support of the motion to dismiss, Defendant City’s reply brief argues that the
Amended Complaint fails to identify any “emotional or mental disorder from which she suffers,”
which is a necessary element of the claim. (Document No. 57, pp. 4-5).
The undersigned finds that this issue presents a close call. To state a claim for negligent
infliction of emotional distress (“NIED”) a plaintiff must demonstrate that: (1) the defendant
negligently engaged in conduct; (2) it was reasonably foreseeable that such conduct would cause
the plaintiff to suffer severe emotional distress; and (3) the conduct did, in fact, cause the plaintiff
to suffer severe emotional distress. A.G. v. Fattaleh, 614 F.Supp.3d 204, 220 (W.D.N.C. 2022)
(citing Johnson v. Ruark Obstetrics & Gynecology Assoc., P.A., 327 N.C. 283, 304 (1990)). The
essential elements of a claim for intentional infliction of emotional distress (“IIED”) are: (1)
extreme and outrageous conduct by the defendant; (2) which is intended to and does in fact cause;
(3) severe emotional distress. Simmons v. Walmart, Inc., No. 1:21-CV-318-MR-WCM, 2023 WL
8461176, at *6 (W.D.N.C. Dec. 6, 2023) (citing Dickens v. Puryear, 302 N.C. 437, 452, (1981)).
In this context, the term “severe emotional distress” means any
emotional or mental disorder, such as, for example, neurosis,
psychosis, chronic depression, phobia, or any other type of severe
and disabling emotional or mental condition which may be generally
recognized and diagnosed by professionals trained to do so.
Johnson v. Ruark Obstetrics & Gynecology Associates, P.A., 327 N.C. 283, 304 (1990)
Although close, the undersigned finds that the Amended Complaint adequately alleges
claims for NIED and IIED. Again, a little more clarity and detail from Plaintiffs would be helpful,
but Plaintiffs have alleged that Mrs. Kernea was treated by “mental health professionals for
emotional distress and injuries” based on witnessing Officer Lowery’s violent assault of her
husband. The undersigned finds that the allegations support plausible claims for negligent and/or
intentional infliction of emotional distress. Although the undersigned will recommend that
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dismissal of claims 9 and 10 be denied at this stage of the litigation, Defendant City may re-raise
its arguments on these claims (and others) in a summary judgment motion. In defense of summary
judgment, Plaintiffs will likely need to be more precise regarding Mrs. Kernea’s diagnosis and
treatment for emotional distress.
6. Indemnification (Claim 11)
Next, Defendant City seeks to dismiss Plaintiffs’ claim for indemnification. In full,
Defendant states:
Plaintiffs request that the City of Charlotte indemnify Officer
Lowery in his official capacity. First, this request makes no sense.
Officer Lowery in his official capacity is the City, and the City
cannot indemnify itself. Second, even if Officer Lowery were a
defendant in this case, which he is not, Plaintiffs have no basis for
dictating to the defense how to apportion losses. That is a matter of
contract among defendants, not a plaintiff’s tort claim.
(Document No. 52, p. 11).
Plaintiffs provide no rebuttal or explanation in support of their “indemnification” claim.
(Document No. 55).
In reply, Defendant simply notes Plaintiffs’ failure to respond and concludes that they have
abandoned this claim. (Document No. 57, p. 5) (citing Reynolds v. Singh, 2024 WL 1311336, at
*15 (E.D.N.C. Mar. 27, 2024)).
Based on the foregoing, the undersigned will respectfully recommend that the motion to
dismiss be granted as to Claim 11.
7. Punitive Damages
Finally, Defendant argues that Plaintiffs’ demand for punitive damages must be stricken.
(Document No. 52, p. 12). Defendant argues that punitive damages are unavailable as a matter
of law. Id. Defendant explains:
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Despite seeking punitive damages as part of their Section 1983
claim, Plaintiffs admit, correctly, that punitive damages are not
available against the City—the only Defendant in this case—under
Section 1983. (See Compl. ¶ 65.) And with respect to state-law
claims, “Punitive damages may not be recovered against a
municipality absent statutory authorization . . . . Further, because a
cause of action against an officer in his official capacity is
essentially a claim against the City, plaintiff likewise may not seek
punitive damages from [an officer] in his official capacity.” Houpe
v. City of Statesville, 49 S.E.2d 82, 93 (N.C. App. 1998). No statute
authorizes a recovery of punitive damages against the City for any
claim Plaintiff brings. Accordingly, all of Plaintiffs’ requests for
punitive damages should be stricken as a matter of law.
Id.
Plaintiffs provide little, if any, rebuttal on the issue of punitive damages. At most, they
seem to suggest that because Officer Lowery is alleged to have acted with malice, punitive
damages are available. (Document No. 55, pp. 16-17) (citing N.C. Gen. Stat. § 1D-5, 15).
In reply, Defendant re-asserts that Plaintiffs fail to identify a statute “that specifically
allows recovery of punitive damages against municipalities as federal and state law requires.”
(Document No. 57, p. 4).
The undersigned finds Defendant’s position most persuasive. The statute cited by Plaintiffs
does not appear to address punitive damages against a municipality, but does state that “[p]unitive
damages shall not be awarded against a person solely on the basis of vicarious liability for the acts
or omissions of another.” N.C. Gen. Stat. § 1D-5, 15(c).
In addition, the undersigned again finds Judge Bell’s decision in A.G. v. Fattaleh to be
instructive:
In North Carolina, punitive damages are not allowed against a
governmental body unless specifically authorized by statute.
Jackson v. Housing Authority of City of High Point, 316 N.C. 259,
341 S.E.2d 523 (1986); see also Long v. City of Charlotte, 306 N.C.
187, 293 S.E.2d 101 (1982). “In the absence of statutory provisions
to the contrary, municipal corporations are immune from punitive
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damages regardless of whether the function of the municipality is
governmental or proprietary.” Jackson, 316 N.C. at 263, 341 S.E.2d
at 525.
Plaintiff does not allege in her Complaint, and has not cited to,
any statutory provision that would permit recovery of punitive
damages from the City. As such, the City is entitled to dismissal of
the punitive damages count. See e.g., Scott v. City of Durham, No.
1:20-CV-558, 2021 WL 3856168, 2021 U.S. Dist. LEXIS 162431
(M.D.N.C. Aug. 27, 2021).
A.G. v. Fattaleh, 614 F.Supp.3d at 237–238.
Based on Defendant’s arguments and the foregoing caselaw, the undersigned will
recommend that Plaintiffs’ demand for punitive damages be stricken.
IV. RECOMMENDATION
FOR THE FOREGOING REASONS, the undersigned respectfully recommends that
“Defendant City Of Charlotte’s Motion To Dismiss Plaintiffs’ Second Amended Complaint”
(Document No. 51) be GRANTED in part and DENIED in part as follows: dismissal granted
as to Claims 1, 2, 3, 4, 8, 11, and punitive damages; and dismissal denied as to Claims 5, 6, 7, 9,
and 10.
V. TIME FOR OBJECTIONS
The parties are hereby advised that pursuant to 28 U.S.C. § 636(b)(1)(C), and Rule 72 of
the Federal Rules of Civil Procedure, written objections to the proposed findings of fact,
conclusions of law, and recommendation contained herein may be filed within fourteen (14) days
of service of same. Responses to objections may be filed within fourteen (14) days after service
of the objections. Fed.R.Civ.P. 72(b)(2). Failure to file objections to this Memorandum and
Recommendation with the District Court constitutes a waiver of the right to de novo review by the
District Court. Diamond v. Colonial Life, 416 F.3d 310, 315-16 (4th Cir. 2005); United States v.
Benton, 523 F.3d 424, 428 (4th Cir. 2008). Moreover, failure to file timely objections will preclude
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the parties from raising such objections on appeal. Id. “In order ‘to preserve for appeal an issue
in a magistrate judge’s report, a party must object to the finding or recommendation on that issue
with sufficient specificity so as reasonably to alert the district court of the true ground for the
objection.’” Martin v. Duffy, 858 F.3d 239, 245 (4th Cir. 2017) (quoting United States v. Midgette,
478 F.3d 616, 622 (4th Cir. 2007)).
IT IS SO RECOMMENDED.
Signed: November 25, 2025
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