Sharpe v. Winterville Police Dep't, No. 4:19-CV-157-D

CourtUnited States District Courts. 4th Circuit. Eastern District of North Carolina
Writing for the CourtJAMES C. DEVER III, United States District Judge
Citation480 F.Supp.3d 689
Parties Dijon SHARPE, Plaintiff, v. WINTERVILLE POLICE DEPARTMENT, Officer William Blake Ellis, in his official capacity, and Officer Myles Parker Helms IV, both individually and in his official capacity, Defendants.
Docket NumberNo. 4:19-CV-157-D
Decision Date20 August 2020

480 F.Supp.3d 689

Dijon SHARPE, Plaintiff,
WINTERVILLE POLICE DEPARTMENT, Officer William Blake Ellis, in his official capacity, and Officer Myles Parker Helms IV, both individually and in his official capacity, Defendants.

No. 4:19-CV-157-D

United States District Court, E.D. North Carolina, Eastern Division.

Signed August 20, 2020

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Thomas Gregory Doucette, The Law Offices of T. Greg Doucette, PLLC, Durham, NC, for Plaintiff.

Dan McCord Hartzog, Jr., Katherine Barber-Jones, Hartzog Law Group LLP, Cary, NC, for Defendants.


JAMES C. DEVER III, United States District Judge

On November 3, 2019, Dijon Sharpe ("plaintiff" or "Sharpe") filed a complaint against the Winterville Police Department ("WPD"), Officer William Blake Ellis ("Ellis") in his official capacity only, and Officer Myers Parker Helms IV ("Helms") in both his individual and official capacities (collectively, "defendants"), alleging violations of 42 U.S.C. § 1983 and the First Amendment that arise from Sharpe recording and real-time broadcasting a traffic stop involving Sharpe (who was a passenger in the car), Helms, and Ellis. See Compl. [D.E. 1]. On February 3, 2020, the defendants filed a partial motion to dismiss and supporting memorandum, seeking dismissal of the claims against WPD and Helms in his individual capacity. See [D.E. 15, 16]. On February 24, 2020, Sharpe responded in opposition. See [D.E. 19]. On March 9, 2020, the defendants replied. See [D.E. 20]. On August 14, 2020, the court heard argument on the motion. As explained below, the court grants the defendants’ partial motion to dismiss.


Sharpe resides in Pitt County, North Carolina. See Compl. ¶ 7. On October 9, 2018, Helms and Ellis, as officers of WPD, properly stopped a car in which Sharpe was riding in the front-passenger seat. See id. at ¶¶ 19–20. Sharpe then "turned on the video recording function of his smartphone and began livestreaming – broadcasting in real-time – via Facebook Live to his Facebook account" Id. at ¶ 22. During the traffic stop, Helms approached the car and asked Sharpe his name, which he declined to provide. See id. at ¶ 24. Helms and Ellis then returned to their patrol car. See id. at ¶ 25. When Helms returned to Sharpe's car, he asked Sharpe, "What have we got? Facebook Live, cous?" Id. at ¶ 27 (alteration omitted); see Pl.’s Ex. A [D.E. 1-2] 17. Sharpe responded: "Yeah." Compl. at ¶ 28: see Pl.’s Ex. A at 17. Helms reached in and attempted to grab Sharpe's phone, pulling on his seatbelt and shirt in the process. See Compl. at ¶ 28. Helms stated, "We ain't gonna do Facebook Live, because that's an officer safety issue." Pl.’s Ex. A at 17. Later, Ellis remarked: "Facebook Live ... we're not gonna have, okay, because that lets everybody y'all follow on Facebook that we're out here. There might be just one me next time [sic] ... It lets everybody know where y'all are at We're not gonna have that" Id. at 19–20.1 Ellis

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continued: "If you were recording, that is just fine.... We record, too. So in the future, if you're on Facebook Live, your phone is gonna be taken from you ... [a]nd if you don't want to give up your phone, you'll go to jail." Id. at 20. Towards the end of the stop, Ellis stated, "But to let you know, you can record on your phone ... but Facebook Live is not gonna happen." Id. at 21.

Sharpe makes two claims. First, Sharpe alleges a violation of 42 U.S.C. § 1983 and the First Amendment against Helms and Ellis, in their official capacities, and WPD. See Compl. at ¶¶ 37–43. As for Helms and Ellis, Sharpe states that they "physically attacked" him and "threatened to deprive" him of his First Amendment right to record and real-time broadcast his interactions with law enforcement Id. at ¶ 40. As for WPD, Sharpe cites Monell v. Department of Social Services of New York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), and alleges "an unconstitutional policy, custom, or practice of preventing citizens from recording and livestreaming their interactions with police officers in the public performance of their duties." Id. at ¶ 41. Second, Sharpe alleges a violation of 42 U.S.C. § 1983 and the First Amendment against Helms in his individual capacity. See id. at ¶¶ 44–48. Specifically, Sharpe asserts that "[t]he physical attack by Officer Helms on Mr. Sharpe" violated his First Amendment rights. Id. at ¶ 47; see [D.E. 19] 6–7.2 Sharpe seeks nominal damages, reasonable attorney's fees, costs, and a declaratory judgment concerning whether Sharpe "has the right, protected by the First Amendment ... to both (a) record police officers in the public performance of their duties and (b) broadcast such recording in real-time." Compl. at 8.


A motion to dismiss under Rule 12(b)(6) tests the complaint's legal and factual sufficiency. See Ashcroft v. Iqbal, 556 U.S. 662, 677–80, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ; Bell Atl. Corp. v. Twombly, 550 U.S. 544, 554–63, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ; Coleman v. Md. Court of Appeals, 626 F.3d 187, 190 (4th Cir. 2010), aff'd, 566 U.S. 30, 132 S.Ct. 1327, 182 L.Ed.2d 296 (2012) ; Nemet Chevrolet, Ltd. v., Inc., 591 F.3d 250, 255 (4th Cir. 2009) ; Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008). To withstand a Rule 12(b)(6) motion, a pleading "must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (quotation omitted); see Twombly, 550 U.S. at 570, 127 S.Ct. 1955 ; Giarratano, 521 F.3d at 302. In considering the motion, the court must construe the facts and reasonable inferences "in the light most favorable to the [nonmoving party]." Massey v. Ojaniit, 759 F.3d 343, 352 (4th Cir. 2014) (quotation omitted); see Clatterbuck v. City of Charlottesville, 708 F.3d 549, 557 (4th Cir. 2013), abrogated on other grounds by Reed v. Town of Gilbert, 576 U.S. 155, 135 S.Ct. 2218, 192 L.Ed.2d 236 (2015). A court need not accept as true a complaint's legal conclusions, "unwarranted inferences, unreasonable conclusions, or arguments." Giarratano, 521 F.3d at 302 (quotation omitted); see Iqbal, 556 U.S. at 678–79, 129 S.Ct. 1937. Rather, a plaintiff's allegations must "nudge[ ] [his] claims," Twombly, 550 U.S. at 570, 127 S.Ct. 1955, beyond the realm of "mere possibility" into "plausibility." Iqbal, 556 U.S. at 678–79, 129 S.Ct. 1937.

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When evaluating a motion to dismiss, a court considers the pleadings and any materials "attached or incorporated into the complaint." E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 448 (4th Cir. 2011) ; see Fed. R. Civ. P. 10(c) ; Thompson v. Greene, 427 F.3d 263, 268 (4th Cir. 2005). A court also may consider a document submitted by a moving party if it is "integral to the complaint and there is no dispute about the document's authenticity" without converting the motion into one for summary judgment Goines v. Valley Cmty. Servs. Bd., 822 F.3d 159, 165–66 (4th Cir. 2016). Additionally, a court may take judicial notice of public records when evaluating a motion to dismiss for failure to state a claim. See, e.g., Fed. R. Evid. 201 ; Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322, 127 S.Ct. 2499, 168 L.Ed.2d 179 (2007) ; Philips v. Pitt Cty. Mem'l Hosp., 572 F.3d 176, 180 (4th Cir. 2009).



Defendants move to dismiss WPD as a defendant under Rule 12(b)(6) of the Federal Rules of Civil Procedure. See [D.E. 15] 1; [D.E. 20] 1–3. Defendants contend that Sharpe has failed to state a claim for which relief can be granted because WPD is not an entity that can be sued under North Carolina law. See [D.E. 20] 1–3. Sharpe responds that "[t]he inclusion of [WPD] as a separate named Defendant was a prophylactic measure ... in the event the official capacity claims were somehow procedurally defective." [D.E. 19] 2. Thus, Sharpe "defers to the Court's judgment regarding the motion to dismiss [WPD] as a discrete entity." Id. At oral argument, Sharpe conceded that WPD was not a proper entity to sue.

State law determines the capacity of a state governmental body to be sued in federal court. See Avery v. Burke Cty., 660 F.2d 111, 113–14 (4th Cir. 1981). Accordingly, this court must predict how the Supreme Court of North Carolina would rule on such a state law issue. See Twin City Fire Ins. Co. v. Ben Arnold-Sunbelt Beverage Co. of S.C., 433 F.3d 365, 369 (4th Cir. 2005). In doing so, the court must look first to opinions of the Supreme Court of North Carolina. See id.; Parkway 1046, LLC v. U.S. Home Corp., 961 F.3d 301, 306 (4th Cir. 2020) ; Stahle v. CTS Corp., 817 F.3d 96, 100 (4th Cir. 2016). If there are no governing opinions from that court, this court may consider the opinions of the North Carolina Court of Appeals, treatises, and "the practices of other states." Twin City Fire Ins. Co., 433 F.3d at 369 (quotation omitted).3 In predicting how the highest court of a state would address an issue, this court must "follow the decision of an intermediate state appellate court unless there [are] persuasive data that the highest court would decide differently." Toloczko, 728 F.3d at 398 (quotation omitted); see Hicks v. Feiock, 485 U.S. 624, 630 & n.3, 108 S.Ct. 1423, 99 L.Ed.2d 721 (1988). Moreover, in predicting how the...

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