IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NORTH CAROLINA

SOUTHERN DIVISION
No. 7:20-CV-00136

NICHOLAS KOUMALATSOS, )
)
Plaintiff, )
)
v. ) COMPLAINT
)
TOWN OF HOLLY RIDGE, NORTH ) JURY TRIAL DEMANDED
CAROLINA et al., )
)
Defendants. )

COMES NOW Plaintiff Nicholas Koumalatsos, by and through his counsel, complaining of

Defendants, Town of Holly Ridge, North Carolina, Mayor Jeff Wenzel, Town Manager Heather

Reynolds, Captain Ewan Richards of the Holly Ridge Police Department, and Detective Lori Faircloth of

the Holly Ridge Police Department, alleges and says the following:

NATURE OF ACTION

1. This is a civil rights action for damages arising out of the unlawful conduct of Defendants under the

Fourth and Fourteenth Amendments to the Constitution of the United States, Sections 1983 and

1985 of Title 42 of the United States Code, Article I, Section 20 of the North Carolina Constitution,

and the Statutory and Common Laws of the State of North Carolina. The actions of Defendants,

detailed herein, deprived Plaintiff of his civil rights.

2. On May 18, 2020, Defendants, individually and in concert, conspired to violate Plaintiff’s civil

rights by surreptitiously entering Plaintiff’s private place of business, unlawfully and without a

warrant, to conduct a search of Plaintiff’s premises in furtherance of Defendant’s investigation into

alleged violations of the Governor’s Executive Order No. 120 and to enforce restrictions on the

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 ability for business owners to operate fitness and exercise facilitates pursuant to North Carolina

Governor Roy Cooper’s Executive Order No. 120.

3. As a result of Defendants' actions, Plaintiff suffered deprivations of the rights guaranteed to him

under the Fourth and Fourteenth Amendments to the Constitution of the United States, Sections

1983 and 1985 of Title 42 of the United States Code, Article I, Section 20 of the North Carolina

Constitution, and the Statutory and Common Laws of the State of North Carolina. Plaintiff has

suffered economic and emotional damage.

THE PARTIES

4. Plaintiff re-alleges and incorporates paragraphs 1-3 of this Complaint by reference as though

specifically set forth herein.

5. Plaintiff, Nicholas Koumalatsos, is a resident of Holly Ridge, Onslow County, North Carolina.

6. Defendant Town of Holly Ridge, North Carolina, at all times relevant to this action, was a municipal

corporation formed and existing under the laws of North Carolina. Defendant Town of Holly Ridge,

North Carolina, hereinafter referred to as “Defendant Town,” is responsible for the actions,

omissions, policies, procedures, practices, and customs of its various agents and agencies, including

the Mayor, Town Manager, and the Holly Ridge Police Department, and its agents and employees.

Defendant Town was responsible for ensuring that the action, omissions, policies, procedures,

practices, and customs of its employees and agents complied with the laws of the United States and

the State of North Carolina. At all relevant times to this action, Defendant Town was the employer

of Jeff Wenzel, Heather Reynolds, Ewan Richards, and Lori Faircloth. Upon information and belief,

Defendant Town has purchased liability insurance or participates in a municipal risk/pooling scheme

sufficient under N.C.G.S. § 160A-485 to waive its immunity against civil liability.

7. Defendant Jeff Wenzel, at all times relevant to this action, was the Mayor of the Town of Holly

Ridge, North Carolina, and was a duly authorized agent of Defendant Town. Mayor Jeff Wenzel,

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 hereinafter referred to as “Defendant Wenzel,” is, upon information and belief, a resident of Onslow

County, North Carolina.

8. Defendant Heather Reynolds, at all times relevant to this action, was the Town Manager and a duly

authorized agent of Defendant Town, subject to oversight by Defendant Town’s elected officials,

and was acting under color of law within the course and scope of her duties as Town Manager of

the Town of Holly Ridge, North Carolina. Defendant Heather Reynolds, hereinafter referred to as

“Defendant Reynolds,” is, upon information and belief, a resident of Onslow County, North

Carolina.

9. Defendant Ewan Richards, at all times relevant to this action, was Captain of and employed by the

Holly Ridge Police Department. Captain Ewan Richards was the supervising police officer on scene

at the time of the violation of Plaintiff’s civil rights on May 18, 2020. Upon information and belief,

Defendant Ewan Richards, hereinafter referred to as “Defendant Richards,” is a resident of Onslow

County, North Carolina.

10. Defendant Lori Faircloth, at all times relevant to this action, was a Detective employed by the

Holly Ridge Police Department. Detective Faircloth was part of the investigation and on scene at

the time of the violation of Plaintiff’s civil rights on May 18, 2020. Upon information and belief,

Defendant Lori Faircloth, hereinafter referred to as “Defendant Faircloth,” is a resident of Onslow

County, North Carolina.

JURISDICTION AND VENUE

11. Plaintiff re-alleges and incorporates paragraphs 1-10 of this Complaint by reference as though

specifically set forth herein.

12. This action arises under the Fourth and Fourteenth Amendments to the Constitution of the United

States; 42 U.S.C. § 1983, 42 U.S.C. § 1985; Article I, Section 20 of the North Carolina Constitution,

and the Statutory and Common Laws of the State of North Carolina.

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13. This Court has original jurisdiction over Plaintiff's constitutional and federal law claims pursuant to

28 U.S.C. § 1331 and 28 U.S.C. § 1343(a).

14. Venue is proper in the Eastern District of North Carolina under 28 U.S.C. § 1391(b) because all

Defendants reside and may be found in the Eastern District of North Carolina, and all of the events

giving rise to these claims occurred in the Eastern District of North Carolina.

FACTS COMMON TO ALL CLAIMS FOR RELIEF

15. Plaintiff re-alleges and incorporates paragraphs 1-14 of this Complaint by reference as though

specifically set forth herein.

16. Plaintiff, individually and as Chief Executive Officer (CEO) of Alexander Industries, LLC,

purchased a health, fitness, and exercise facility, Snap Fitness 24/7, hereinafter referred to as “the

Gym,” on May 31, 2018.

17. The Gym is located in Holly Ridge, an incorporated town in Onslow County, North Carolina

which has a population of just over 2,500 residents, according to latest census data.

18. Since the date of purchase on May 31, 2018, Plaintiff has owned and operated the Gym with his

wife as a family business in the Town of Holly Ridge.

19. Due to the size of the Town of Holly Ridge, North Carolina, residents and officials in the town

would have been made aware of the change in ownership, as it is one of the few small businesses

owned and operated within the municipal limits of the town.

20. On March 10, 2020, North Carolina Governor Roy Cooper, hereinafter referred to as the

“Governor,” issued Executive Order No. 116 declaring a State of Emergency pursuant to his

delegated authority under N.C.G.S. § § 166A-19.10 and -19.20.

21. On March 14, 2020, the Governor issued Executive Order No. 117 which prohibited mass

gatherings of more than one hundred (100) persons in public places or buildings, pursuant to

N.C.G.S. § 166A-19.30(b)(3). Executive Order No. 117 made violation of the prohibition of mass

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 gatherings subject to prosecution pursuant to N.C.G.S. § 166A-19.30(d) and punishable by a Class

2 misdemeanor in accordance with N.C.G.S. § 14-288.20A.

22. On March 23, 2020, the Governor’s Executive Order No. 120 expanded the definition of mass

gatherings, originally identified in Executive Order No. 117, to include the prohibition of any

gathering at an indoor exercise facility, to include, but not limited to, indoor gyms, yoga studios,

and martial arts facilities, also subject to prosecution pursuant to N.C.G.S. § 166A-19.30(d) and

punishable by a Class 2 misdemeanor in accordance with N.C.G.S. § 14-288.20A.

23. As a result of the Governor’s order to close all indoor exercise facilities, Plaintiff was forced to

shut down his business or face criminal repercussions as a result, and made the difficult decision to

indefinitely close his family business on March 25, 2020, pursuant to Executive Order No. 120’s

mandates.

24. After more than a month of the Gym being closed, with no indication of when Plaintiff might have

the opportunity pursue his economic liberty as guaranteed by Article 1, Section 1 of the North

Carolina Constitution, Plaintiff made the decision to re-open his indoor fitness facility while

implementing guidelines released by the Center for Disease Control (“CDC”).

25. Plaintiff re-opened the Gym on May 1, 2020, while implementing CDC recommended guidelines,

including mandatory temperature checks upon entrance, social distancing of six (6) feet or more

between patrons, not allowing more than ten (10) patrons in the facility at one time, and Plaintiff

provided sanitation stations throughout the facility. Plaintiff successfully operated the Gym

without consequence until May 7, 2020.

26. On May 7, 2020, members of the Holly Ridge Police Department gained access to the Gym by

way of the front door left open by staff to allow for proper ventilation in consideration of

coronavirus-19 (“COVID-19”) related concerns.

27. Defendant Richards, as the supervisory officer, threatened patrons and staff of the Gym with

criminal prosecution if they did not leave the facility immediately.

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28. Plaintiff, who was not present at the time of entry, arrived at the Gym to inquire as to the legal

ramifications on his patron’s behalf if they were to continue to utilize the facility.

29. Defendant Richards called Plaintiff a “smart ass” and ordered another officer to issue Plaintiff a

Class 2 misdemeanor in accordance with the Governor’s Executive Order No. 120 and N.C.G.S.

§ 14-288.20A. Upon receipt of this Class 2 misdemeanor, Plaintiff closed the Gym.

30. Later in the day on May 7, 2020, Holly Ridge Chief of Police, Keith Whaley, hereinafter referred

to as “Whaley,” visited Plaintiff’s residence to discuss the events which transpired earlier that day

at the Gym.

31. Whaley informed Plaintiff that the citation earlier issued by Holly Ridge Police Department would

be rescinded and not forwarded to the District Attorney for prosecution, and that Plaintiff would

not be issued further citations for operating the Gym until three warnings had been given, per

Holly Ridge Police Department policy.

32. At the same time Whaley and Plaintiff were discussing the earlier events at Plaintiff’s residence,

Defendant Richards approached staff at the Gym and told the staff to inform Plaintiff to leave the

Class 2 misdemeanor citation on Plaintiff’s front porch so that Defendant Richards could rescind

said citation, pursuant to Holly Ridge Police Department’s three warning policy.

33. Plaintiff, relying on and acting in accordance with Holly Ridge Police Department’s three warning

policy, made the decision to open the Gym on May 8, 2020, at 5:00pm while further implementing

recommend guidelines of temperature checks, social distancing, and regularly sanitizing the

facility.

34. Later that evening on May 8, 2020, at approximately 8:40 pm, Plaintiff received a phone call from

Defendant Reynolds, who inquired if Plaintiff had reopened the Gym. Plaintiff informed

Defendant Reynolds that it was after business hours and that he could be reached via telephone at

a more appropriate time. Plaintiff did not receive a subsequent phone call from Defendant

Reynolds following this conversation.

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35. On May 9, 2020, Whaley called to inform Plaintiff that he was issuing the first of three possible

warnings to Plaintiff for operating the Gym.

36. Plaintiff thereafter operated the Gym from May 9, 2020, to May 18, 2020, safely and effectively

pursuant to the recommended CDC guidelines mentioned above, without additional warnings from

the Holly Ridge Police Department and without any further contact from Defendant Reynolds or

any other representative from Defendant Town.

37. On May 18, 2020, Defendant Richards, Defendant Reynolds, and Defendant Faircloth,

individually and in their official capacities, conspired to violate Plaintiff’s civil rights by

surreptitiously entering Plaintiff’s private place of business, unlawfully and without a warrant, to

conduct a search of the premises in furtherance of their investigation into alleged violations of

North Carolina Governor Roy Cooper’s Executive Order No. 120 and to ensure Plaintiff ceased

operation of the Gym pursuant to Executive Order No. 120.

38. On May 18, 2020, Defendant Richards, Defendant Reynolds, and Defendant Faircloth conspired to

meet at the Gym to conduct an unlawful search of Plaintiff’s premises in furtherance of their

investigation.

39. On May 18, 2020, Defendant Richards, Defendant Reynolds, and Defendant Faircloth did actually

meet on the premises of Plaintiff’s private business, the Gym.

40. At approximately 3:00 pm on May 18, 2020, Defendant Richards and Defendant Faircloth

unlawfully gained access to Plaintiff’s private business, the Gym, via a keycard allegedly obtained

by Defendant Town from the Gym’s prior business owner, whom they knew owned the Gym,

more than ten years prior, and again threatened and harassed staff and patrons with criminal

prosecution. Defendant Reynolds remained outside of the Gym and approached the door at

approximately 3:10 pm to confer with Defendant Richards.

41. Rather than articulating reasonable suspicion that a crime was being committed and obtaining a

warrant from a neutral magistrate based upon probable cause, as the Fourth Amendment requires,

Defendant Richards, Defendant Reynolds, and Defendant Faircloth unlawfully and surreptitiously
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 entered a private business with a key card not authorized by nor obtained from Plaintiff or his staff

to conduct a search of the premises in furtherance of their investigation into alleged violations of

the Governor’s Executive Order No. 120.

42. During the course of the incident Defendant Richards began taking pictures of all the license plates

of patron’s vehicles parked in the Gym’s parking lot to further solidify his threats of criminal

prosecution.

43. Defendant Richards identified himself as the acting chief of police after Whaley was placed on

administrative leave on or about May 14, 2020.

44. Defendant Richards was acting under color of law and wearing his standard issued police uniform

when he unlawfully gained access to the Gym.

45. Defendant Faircloth was not wearing a police uniform, but was acting under color of law in her

official capacity as a detective with Holly Ridge Police Department and identified herself as such

and presented her business card to Plaintiff for reference and identification purposes.

46. Defendant Reynolds, present in her official capacity as Town Manager, accompanied the police

officers to the Gym in furtherance of the investigation and to ensure that patrons and staff were

duly threatened and warned of the ramification of patronizing Plaintiff’s business.

47. On May 20, 2020, Defendant Wenzel issued a video and press release in which he claimed that

Defendant Richards, Defendant Reynolds, and Defendant Faircloth were not trespassing onto the

Gym’s premises because Defendant Town was given a key card in 2010 for “police purposes” by

the previous owners of the Gym.

48. Defendant Wenzel utilized Defendant Town’s social media and press release resources to make a

public statement, where he claimed that District Attorney Ernie Lee, the elected District Attorney

in Prosecutorial District 5, had sanctioned Defendant’s entry into the premises because they had

not committed a trespass as contemplated by N.C.G.S. § 14-159.12-14. Defendant Wenzel

emphasized several times that Defendant Richards and Defendant Faircloth were “officers of the

state” and “employed by the Town of Holly Ridge.”

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49. Plaintiff had no knowledge of a key card being obtained by any of the above-named Defendants

and revoked the card upon learning of its existence.

50. At no point did any of the above-named Defendants attempt to obtain a warrant to search

Plaintiff’s premises.

51. Instead of utilizing a neutral magistrate to obtain a warrant to search Plaintiff’s premises,

Defendants, together and in concert, conspired to subvert the warrant requirement laid out in the

Constitution of the United States, the North Carolina Constitution, and relevant case law, and used

a key card allegedly obtained by Defendants from a prior owner for “police purposes.”

PLAINTIFF’S FIRST CAUSE OF ACTION:

CONSPIRACY IN VIOLATION OF 42 U.S.C. § 1985

52. Plaintiff re-alleges and incorporates paragraphs 1-51 of this Complaint by reference as though

specifically set forth herein.

53. Defendant Wenzel, Defendant Richards, Defendant Reynolds, and Defendant Faircloth are persons

as that term is used in the text of 42 U.S.C. § 1985.

54. Under color of State law, Defendant Richards, Defendant Reynolds, and Defendant Faircloth

conspired and entered into expressed or implied agreements, understandings or meetings of the mind

among themselves to deprive Plaintiff of Plaintiff’s Constitutional rights by unlawfully entering the

Gym to conduct a search of the premises in furtherance of their investigation into alleged violations

of the Governor’s Executive Order No. 120 and to threaten patrons and staff with criminal

prosecution.

55. Defendant Richards, Defendant Reynolds, and Defendant Faircloth willfully participated in this

unlawful activity by various means including:

a. Conspiring to meet at the Gym to gain access to the premises to conduct a search of the

premises in furtherance of their investigation into alleged violations of the Governor’s

Executive Order No. 120 and to threaten patrons and staff with criminal prosecution;
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 b. Actually meeting at the Gym with the above-identified keycard; and

c. Together, and in concert, entering the premises of the Gym to threaten patrons and staff with

criminal prosecution and to demand Plaintiff cease operations of his gym pursuant to the

Governor’s executive orders.

56. Upon information and belief, Defendant Wenzel, under color of State law, conspired and entered

into expressed or implied agreements, understandings or meetings of the mind between himself,

Defendant Richards, Defendant Reynolds, and Defendant Faircloth to deprive Plaintiff of Plaintiff’s

Constitutional rights by assisting Defendant Richards and Defendant Faircloth in unlawfully gaining

entry to Plaintiff’s premises.

57. Defendant Wenzel willfully participated in this unlawful activity by various means, including:

a. Conspiring to assist Defendant Richards and Defendant Faircloth in unlawfully accessing

Plaintiff’s premises to conduct a search in furtherance of their investigation into alleged

violations of the Governor’s Executive Order No. 120 and to threaten patrons and staff with

criminal prosecution;

b. Assisting Defendant Richards, Defendant Faircloth, and Defendant Reynolds in gaining

access to the key card;

c. Issuing public, defamatory statements about Plaintiff in regard to the incident on May 18,

2020; and

d. Ratifying Defendant Richards and Defendant Faircloth’s actions as lawful and supported by

Defendant Town.

58. The actions of Defendant Wenzel, Defendant Richards, Defendant Reynolds, and Defendant

Faircloth evidence a reckless and callous disregard for and deliberate indifference to, Plaintiff's

Constitutional rights.

59. As a direct and foreseeable consequence of this conspiracy, Plaintiff was deprived of his rights under

the Fourth and Fourteenth Amendments to the Constitution of the United States.

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60. As a direct and foreseeable consequence of these deprivations, Plaintiff has suffered economic loss,

emotional trauma, loss of economic liberty, loss of privacy, and irreparable harm to his reputation.

61. Defendant Wenzel, Defendant Richards, Defendant Faircloth, and Defendant Reynolds are each

liable to Plaintiff for compensatory damages under 42 U.S.C. § 1985.

PLAINTIFF’S SECOND CAUSE OF ACTION:

VIOLATION OF PLAINTIFF’S 4TH AND 14TH AMENDMENT RIGHTS

PURSUANT TO 42 U.S.C. § 1983

62. Plaintiff re-alleges and incorporates paragraphs 1-61 of this Complaint by reference as though

specifically set forth herein.

63. At all times relevant to this Complaint, Defendant Richards and Defendant Faircloth were acting

under the color of state law as police officers in the employment of the Holly Ridge Police

Department.

64. The Fourth Amendment to the Constitution of the United States provides that “[t]he right of the

people to be secure in their persons, house, papers, and effects, against unreasonable searches and

seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by

Oath or affirmation, and particularly describing the place to be searched, and the persons or things

to be seized.”

65. Section II of the Fourteenth Amendment provides that “[n]o state shall . . . deprive any person of

life, liberty, or property, without due process of law; nor deny any person within its jurisdiction

equal protection of the laws.”

66. Under the Fourth and Fourteenth Amendments to the Constitution of the United States, Defendant

Richards and Defendant Faircloth were prohibited from unreasonably searching a private business

without first obtaining a warrant from a neutral magistrate based upon probable cause.

67. The actions of Defendant Richards and Defendant Faircloth as detailed herein, constitute an

unreasonable government search in gross violation of Plaintiff’s rights under the Fourth and
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 Fourteenth Amendments of the Constitution of the United States and Plaintiff’s civil rights

according to 42 U.S.C. § 1983.

68. Defendant Richards and Defendant Faircloth actions include, but are not limited to:

a. Utilizing a key card to enter the premises of the Gym without Plaintiff’s knowledge or

permission; and

b. Entering a private business, not open to the public without membership, surreptitiously and

without a warrant to conduct a search of the premises in furtherance of their investigation

into alleged violations of the Governor’s Executive Order No. 120.

69. The method by which Defendant Richards and Defendant Faircloth gained entry to the Gym was

unlawful, unreasonable, and in direct violation of Plaintiff’s Fourth and Fourteenth Amendment

rights.

70. As a direct and proximate result of Defendant Richards and Defendant Faircloth’s unlawful and

unconstitutional conduct as described herein, Plaintiff has been damaged, and continues to be

damaged, in an amount to be determined at trial.

71. Defendant Richards’ and Defendant Faircloth’s actions as described herein was intentional,

wanton, willful, malicious, manifested blatant and reckless disregard for Plaintiff’s constitutionally

protected rights, and as such Plaintiff is entitled to punitive damages from Defendant Richards and

Defendant Faircloth, individually.

72. Defendant Richards and Defendant Faircloth are each liable to Plaintiff for compensatory damages

under 42 U.S.C. § 1983.

73. Pursuant to 42 U.S.C.§ 1988, Plaintiff is entitled to recovery of his Attorney fees.

PLAINTIFF’S THIRD CAUSE OF ACTION:

AGAINST THE TOWN OF HOLLY RIDGE, NORTH CAROLINA

IN ITS SUPERVISORY CAPACITY PURSUANT TO 42 U.S.C. § 1983

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74. Plaintiff re-alleges and incorporates paragraphs 1-73 of this Complaint by reference as though

specifically set forth herein.

75. The Town of Holly Ridge, North Carolina is a "person" as that term is used in the context of 42

U.S.C. § 1983.

76. Defendant Town is charged with the oversight and conduct of the Holly Ridge Police Department

and the Town Manager.

77. On May 7, 2020, representatives from the Holly Ridge Police Department issued Plaintiff a Class 2

misdemeanor to Plaintiff, threatened patrons and staff of the Gym with criminal prosecution, and

subsequently rescinded Plaintiff’s criminal charge.

78. On May 8, 2020, Defendant Reynolds called Plaintiff at his home and inquired as to whether Plaintiff

authorized the reopening of the Gym.

79. The officials of the Town of Holly Ridge, North Carolina were put on notice on May 9, 2020, that

representatives of Defendant Town were engaged in a highly publicized incident with Plaintiff at

his private place of business and had an obligation to make sure that subsequent investigations

conducted by the Holly Ridge Police Department were done by properly trained personnel and that

said personnel were given the resources necessary to conduct a full and fair investigation.

80. On or about May 14, 2020, Defendant Town placed Whaley on administrative leave pending an

internal investigation and appointed Defendant Richards as Interim Chief of Police of the Holly

Ridge Police Department.

81. On May 18, 2020, Defendant Richards, Defendant Reynolds, and Defendant Faircloth conspired to

and did actually meet at the Gym to conduct an unlawful search of Plaintiff’s premises in

furtherance of their investigation.

82. On May 18, 2020, Defendant Richards was in his police issued uniform, present at the Gym in his

marked police car, identified himself as the Interim Chief of Police of the Holly Ridge Police

Department, and violated Plaintiff’s Fourth and Fourteenth Amendment rights in his individual and

official capacity.
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83. On May 18, 2020, Defendant Faircloth was present at the Gym in her official capacity as a detective

with the Holly Ridge Police Department, presented Plaintiff with a business card bearing Defendant

Town’s logo, and violated Plaintiff’s Fourth and Fourteenth Amendment rights in her individual and

official capacity.

84. On May 18, 2020, Defendant Reynolds was present in her individual and official capacity as Town

Manager of Defendant Town when she conspired to violated Plaintiff’s Fourth and Fourteenth

Amendment rights.

85. Had officials of Defendant Town inquired into this matter, they would have discovered that the

proper way for Defendant Richards and Defendant Faircloth to gain access to the Gym for the

purposes of conducting a search pursuant to a criminal investigation would have been to obtain a

warrant from a neutral magistrate based upon probable cause.

86. Despite the high profile nature of the incident and the violation of Plaintiff’s Fourth and Fourteenth

Amendment rights, Defendant Wenzel, in his official capacity as Mayor of the Town of Holly Ridge,

North Carolina and acting under color of law, ratified the Defendants acts and conduct as evidenced

by issuing a press release and video on Defendant Town’s social media claiming the key card

allegedly given to Defendant Town by the Gym’s previous owner was used properly to conduct a

search pursuant to a criminal investigation.

87. Upon information and belief, Defendant Richards, Defendant Faircloth, and Defendant Reynolds

were not disciplined, reprimanded, retrained, suspended or otherwise penalized in connection with

the violations of Plaintiff’s constitutional rights.

88. Proper inquiries into the matter would have revealed the requirements of the Fourth and Fourteenth

Amendment were not met and would have required Defendant Town to intervene prior to a violation

of Plaintiff’s civil and constitutional rights.

89. Defendant Town’s inaction or deliberate indifference contributed to the likelihood that the actions

or inactions of Defendant Wenzel, Defendant Richards, Defendant Faircloth, or Defendant Reynolds

would result in violations of the Plaintiff's civil and constitutional rights.

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90. Defendant Wenzel, Defendant Richards, Defendant Faircloth, and Defendant Reynolds acted under

color of law.

91. The acts of these Defendants deprived Plaintiff of particular rights under the Constitution of the

United States or arbitrarily disregarded Plaintiff's rights under the Constitution of the United States.

92. The training policies of Defendant Town were not adequate to train its police officers and employees

to handle the usual and recurring situations with which they must deal, including with regard to the

requirements of a constitutional search and/or seizure.

93. As a direct and foreseeable consequence of this failure of official supervision, Plaintiff was deprived

of his rights under the Fourth and Fourteenth Amendments to the Constitution of the United States.

94. As a direct and foreseeable consequence of these deprivations, Plaintiff suffered economic loss,

emotional trauma, loss of economic liberty, loss of privacy, and irreparable harm to his reputation.

95. Defendant Town, Defendant Wenzel, Defendant Richards, Defendant Faircloth, and Defendant

Reynolds are each liable to Plaintiff for compensatory damages under 42 U.S.C. § 1983.

PLAINTIFF’S FOURTH CAUSE OF ACTION:

UNREASONABLE SEARCH IN VIOLATION OF

ARTICLE I, SECTION 20 OF THE NORTH CAROLINA CONSTITUTION

96. Plaintiff re-alleges and incorporates paragraphs 1-95 of this Complaint by reference as though

specifically set forth herein.

97. Article I, Section 20 of the North Carolina Constitution prohibits unlawful searches, without a

warrant, obtained from a neutral magistrate, based upon probable cause.

98. North Carolina has defined an unreasonable search as an examination or inspection without

authority of law of one's premises or person with a view to the discovery of some evidence of guilt

to be used in the prosecution of a criminal action. State v. Turnbull, 16 N.C. App. 542, 192 S.E.2d

689 (1972).

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99. A search of private property without proper consent is unreasonable unless it has been authorized

by a valid search warrant. State v. Frederick, 31 N.C. App. 503, 230 S.E.2d 421 (1976).

100. On May 18, 2020, Defendant Reynolds, Defendant Richards, and Defendant Faircloth

intentionally gained access to Plaintiff’s private business establishment, the Gym, without

Plaintiff’s consent for the purpose of conducting a search to obtain evidence of guilt to be used in

the prosecution of a criminal action.

101. Defendant Reynolds, Defendant Richards, and Defendant Faircloth gained access to the

Gym, without proper consent, by utilizing a key card allegedly given to Defendant Town a decade

prior by the previous owners of the Gym without Plaintiff’s knowledge.

102. At no point did Defendant Reynolds, Defendant Richards, or Defendant Faircloth attempt

to obtain a search warrant to enter the premises of the Gym.

103. These actions evidence a reckless and callous disregard for, and deliberate indifference to,

Plaintiff's rights guaranteed by Article I, Section 20 of the North Carolina Constitution.

104. As a direct and foreseeable consequence of this conspiracy, Plaintiff was deprived of his

rights under Article I, Section 20 of the North Carolina Constitution.

105. As a direct and foreseeable consequence of these deprivations, Plaintiff suffered economic

loss, emotional trauma, loss of economic liberty, loss of privacy, and irreparable harm to his

reputation.

PLAINTIFF’S FIFTH CAUSE OF ACTION:

CIVIL CONSPIRACY IN VIOLATION OF

NORTH CAROLINA COMMON LAW

106. Plaintiff re-alleges and incorporates paragraphs 1-105 of this Complaint by reference as

though specifically set forth herein.

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107. Defendant Wenzel, Defendant Reynolds, Defendant Richards, Defendant Faircloth, and

Defendant Town are all “persons” as that term is used in the context of North Carolina Common

Law.

108. Under color of State law, the Defendants conspired and entered into express and/or implied

agreements, understandings or meetings of the minds among themselves to unlawfully enter

Plaintiff’s private business, without a warrant, by utilizing a key card given to Defendant Town by

the previous owners of the Gym.

109. This was evidenced by Defendant Richards, Defendant Faircloth, and Defendant Reynolds actually

meeting at the Gym with Defendant Town’s unauthorized key card.

110. Together, Defendant Richards, Defendant Faircloth and Defendant Reynolds acted unlawfully by

entering Plaintiff’s private business to conduct a search of the premises in connection with a criminal

investigation by utilizing an unauthorized key card without first obtaining a warrant from a neutral

magistrate based upon probable cause.

111. These actions evidenced a reckless and callous disregard for, and deliberate indifference to,

Plaintiff's Constitutional rights.

112. As a direct and foreseeable consequence of this conspiracy, Plaintiff was deprived of his rights under

the Fourth and Fourteenth Amendments to the Constitution of the United States.

113. As a direct and foreseeable consequence of these deprivations, Plaintiff suffered economic loss,

emotional trauma, loss of economic liberty, loss of privacy, and irreparable harm to his reputation.

PLAINTIFF’S SIXTH CAUSE OF ACTION:

TRESPASS IN VIOLATION OF N.C.G.S. § 99A AND

NORTH CAROLINA COMMON LAW

114. Plaintiff re-alleges and incorporates paragraphs 1-113 of this Complaint by reference as though

specifically set forth herein.

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115. Defendant Wenzel, Defendant Reynolds, Defendant Richards and Defendant Faircloth are all

“persons” as that term is used in the context of N.C.G.S. § 99A and North Carolina Common Law.

116. Defendant Wenzel and Defendant Reynolds directed and assisted Defendant Richards and

Defendant Faircloth in unlawfully gaining access to the nonpublic area of Plaintiff’s private

business establishment without Plaintiff’s consent.

117. Defendant Richards and Defendant Faircloth intentionally gained access to the nonpublic area of

Plaintiff’s private business establishment, the Gym, without Plaintiff’s consent on May 18, 2020.

118. Defendant Richards and Defendant Faircloth gained access to the Gym not to patronize the facility

or to conduct a health and wellness check on the facility, but to conduct a search of Plaintiff’s

premises and investigate what they believed to be criminal conduct.

119. The Gym is a nonpublic area as contemplated by N.C.G.S. § 99A as it is not accessible to or not

intended to be accessed by the general public, as a key card is needed to enter the premises.

120. As a result of Defendant Richards and Defendant Faircloth’s invasion of Plaintiff’s rights of

possession of the premises, Plaintiff’s personal and economic interests were damaged.

WHEREFORE, Plaintiff prays and requests of this Court a judgement and entry of damages from

the Defendants as follows:

1. That this Court will assume jurisdiction over the parties and the subject matter of this action.

2. That Plaintiff recover on his First Cause of Action (Conspiracy in Violation of 42 U.S.C. § 1985)

in an amount to be established at trial, plus interest as provided by law.

3. That Plaintiff recover on his Second Cause of Action (Violation of Plaintiff’s 4 th and 14th

Amendment Rights Pursuant to 42 U.S.C. § 1983) in an amount to be established at trial, plus

interest as provided by law.

4. That Plaintiff recover on his Third Cause of Action (Against the Town of Holly Ridge, North

Carolina in its Supervisory Capacity Pursuant to 42 U.S.C. § 1983) in an amount to be

established at trial, plus interest as provided by law.

Case 7:20-cv-00136-FL Document 2 Filed 07/17/20 Page 18 of 20

 5. That Plaintiff recover on his Fourth Cause of Action (Unreasonable Search in Violation of

Article I, Section 20 of the North Carolina Constitution) in an amount to be established at trial,

plus interest as provided by law.

6. That Plaintiff recover on his Fifth Cause of Action (Civil Conspiracy in Violation of North

Carolina Common Law) in an amount to be established at trial, plus interest as provided by law.

7. That Plaintiff recover on his Sixth Cause of Action (Trespass in Violation of N.C.G.S. § 99A

and North Carolina Common Law) in an amount to be established at trial, plus interest as

provided by law.

8. For compensatory damages in an amount to be proven at trial.

9. For statutory damages in the amount provided by law.

10. For punitive damages against the individual defendants in an amount to be proven at trial.

11. An award of Plaintiff’s attorneys’ fees under 42 U.S.C. § 1988;

12. Alternatively, an award of attorneys’ fees under North Carolina Gen. Stat. § 99A-2(d)(3);

13. Exemplary damages under North Carolina Gen. Stat. § 99A-2(d)(4);

14. An award of all costs and expenses related to this action;

15. For a jury trial; and

16. Such additional relief as the Court may deem just and proper.

This 16th day of July, 2020.

COASTAL LEGAL COUNSEL

BY: /s/ Aaron D. Lindquist__

Aaron D. Lindquist
Attorney for Plaintiff
205 North 5th Ave.
Wilmington, NC 28401
910-409-6231
910-239-8385 (fax)
aaron@[Link]
N.C. State Bar No. 49347

Case 7:20-cv-00136-FL Document 2 Filed 07/17/20 Page 19 of 20

 /s/ A. David Ervin_____
A. David Ervin
Attorney for Plaintiff
205 North 5th Ave.
Wilmington, NC 28401
910-409-6231
910-239-8385 (fax)
dave@[Link]
N.C. State Bar No. 51783

/s/ Brandon C. Pettijohn__

Brandon C. Pettijohn
Attorney for Plaintiff
205 North 5th Ave.
Wilmington, NC 28401
910-409-6231
910-239-8385 (fax)
brandon@[Link]
N.C. State Bar No. 54954

Case 7:20-cv-00136-FL Document 2 Filed 07/17/20 Page 20 of 20