Hawkins v. State

453 S.E.2d 233, 117 N.C. App. 615, 1995 N.C. App. LEXIS 62

• Court: Court of Appeals of North Carolina
• Decided: February 7, 1995
• Docket: 9225SC154
• Status: Published

Opinion

EAGLES, Judge.

I.

We note initially that the denial of a motion to dismiss is ordinarily not immediately appealable. Faulkenbury v. Retirement System, 108 N.C. App. 357, 365, 424 S.E.2d 420, 423, aff’d, 335 N.C. 158, 436 S.E.2d 821 (1993). Here, defendants asserted the defenses of absolute and qualified immunity to most of plaintiff’s claims. This Court has previously held that the doctrine of sovereign immunity presents a personal jurisdiction question and that the denial of a motion to dismiss on that basis is immediately appealable. See Faulkenbury at 357, 424 S.E.2d at 423; Zimmer v. North Carolina Dept. Of Transp., 87 N.C. App. 132, 134, 360 S.E.2d 115, 116-17 (1987). Accordingly, we hold that defendants’ appeal from the trial court’s denial of defendants’ motions to dismiss is properly before us.

We also note initially that although plaintiff alleged in his complaint that defendants violated his rights under 28 U.S.C. §§ 1981 and 1983, both parties treated the claims as pursuant to 42 U.S.C. §§ 1981 and 1983. Accordingly, we treat the claims as pursuant to 42 U.S.C. §§ 1981 and 1983.

Standard of Review

“When considering a Rule 12(b)(6) motion to dismiss, the trial court need only look to the face of the complaint to determine whether it reveals an insurmountable bar to plaintiff’s recovery.” Locus v. Fayetteville State University, 102 N.C. App. 522, 527, 402 S.E.2d 862, 866 (1991) (emphasis omitted).

II.

Defendants first argue that the trial court erred in denying their amended motion to dismiss plaintiffs complaint because plaintiffs claims are barred by the statute of limitations. Plaintiff filed his first complaint on 15 December 1989, within the three year statute of limitations applicable to all of his claims. Plaintiff then voluntarily dismissed his first complaint on 29 February 1990. He filed the second complaint on 27 February 1991, which was within the one year “savings” provision provided by Rule 41(a)(1) of the North Carolina Rules of Civil Procedure. Defendants argue that plaintiff was not entitled to another year in which to refile his complaint because he took a voluntary dismissal of his first action in bad faith. Defendants base their argument on our Supreme Court’s decision in Estrada v. Burnham, 316 N.C. 318, 341 S.E.2d 538 (1986). We disagree because Estrada is distinguishable.

In Estrada, the North Carolina Supreme Court stated that although “Rule 41(a)(1) does not, on its face, contain an explicit prerequisite of a good-faith filing with the intent to pursue the action, we find such a requirement implicit in the general spirit of the rules, as well as in the mandates of Rule 11(a).” Estrada at 323, 341 S.E.2d at 542. The Court concluded that a plaintiff cannot use the “savings” provision of Rule 41(a)(1) when the plaintiff files the first complaint solely with the “intention of dismissing it in order to avoid the lapse of the statute of limitations.” Estrada at 325, 341 S.E.2d at 543. The Court concluded that the plaintiff in Estrada had filed the original complaint in bad faith and therefore was not entitled to the one year “savings” provision.

As the court in Estrada noted, “appellate court[s] cannot make findings of fact.” Id. at 324, 341 S.E.2d at 543. However, in Estrada, the Court had before it the judicial admission of plaintiff’s counsel that “ ‘[c]learly there was an intent on our part not to prosecute [the first] action.’ ” Estrada at 325, 341 S.E.2d at 543. This admission enabled the Court to reach the conclusion that the plaintiff had a “bad” intent. Here, there is no evidence of record that plaintiff’s sole intent in filing the first complaint was to dismiss it in order to gain another year in which to file a “sufficient” complaint. In Estrada, the plaintiff filed the first complaint at 4:28 p.m. on 18 June 1982, and filed the notice of dismissal at 4:30 p.m., two minutes after he filed the original complaint. Estrada at 319, 341 S.E.2d at 539, 40. Here, plaintiff waited over two months to dismiss his original complaint. Here, too, there is no judicial admission that shows that plaintiff filed and dismissed his first complaint in bad faith. Accordingly, we hold that the “savings” provision of Rule 41(a)(1) properly applied to plaintiffs complaint and that his second complaint was not barred by the statute of limitations.

Federal Claims

III.

Defendants argue that the trial court erred in denying defendants’ amended motion to dismiss plaintiffs federal claims because the defendants in their official capacities are not “persons” within the meaning of 42 U.S.C. § 1983. Section 1983 provides that:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

42 U.S.C.A. § 1983 (West 1994). The United States Supreme Court held in Will v. Michigan Dept. Of State Police, 491 U.S. 58, 71, 105 L.Ed.2d 45, 58 (1989), that “neither a State nor its officials acting in their official capacities are ‘persons’ under § 1983.” While the Court opined that state officials are “literally .. . persons,” the opinion holds that “a suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official’s office.” Will, 491 U.S. at 71, 105 L.Ed.2d at 58, citing Brandon v. Holt, 469 U.S. 464, 471, 83 L.Ed.2d 878, 884-85 (1985). “As such, it is no different from a suit against the State itself.” Will, 491 U.S. at 71, 105 L.Ed.2d at 58. Because defendants in their official capacities are not “persons” within the meaning of section 1983 for recovering money damages, we hold that the trial court erred in denying defendants’ amended motion to dismiss plaintiff’s federal claims against defendants in their official capacities for monetary damages.

Plaintiff also argues that defendants are “persons” here and liable because their actions establish a “governmental custom” of Constitu tional and statutory violations. We are not persuaded. Plaintiff relies on language from cases dealing with municipal liability. Municipalities do not enjoy the same protections from liability that states enjoy. “[Ujnlike various government officials, municipalities do not enjoy immunity from suit — either absolute or qualified — under § 1983. In short, a municipality can be sued under § 1983, but it cannot be held liable unless a municipal policy or custom caused the constitutional injury.” Leatherman v. Tarrant County Etc., 507 U.S. -, -, 122 L.Ed.2d 517, 523 (1993). Accordingly, plaintiff here cannot contend that defendants in their official capacities are liable for alleged Constitutional violations by arguing that defendants’ actions were pursuant to a “governmental custom.”

As to plaintiffs claim for injunctive relief under section 1983, defendants are “persons.” Will, 491 U.S. at 71 n.10, 105 L.Ed.2d at 58 n.10. Accordingly, plaintiff may be able to obtain injunctive relief against defendants in their official capacities if he can state a claim under each of the alleged federal violations.

IV.

Defendants also argue that the trial court erred in denying defendants’ amended motion to dismiss plaintiff’s federal claims because defendants in their individual capacities are immune from suit under the doctrine of qualified immunity. “[S]tate governmental officials [may] be sued in their individual capacities for [monetary] damages under section 1983.” Corum v. University of North Carolina, 330 N.C. 761, 772, 413 S.E.2d 276, 283, reh’g denied, 331 N.C. 558, 418 S.E.2d 664, cert. denied, Durham v. Corum, - U.S. -, 121 L.Ed.2d 431 (1992). Government officials sued under section 1983 may raise the defense of qualified immunity. Id. “To raise the defense, which does not apply to injunctive relief, the challenged conduct must not have violated a clearly established constitutional [or statutory] right of which a reasonable person would have known.” Truesdale v. Univ. Of North Carolina, 91 N.C. App. 186, 193, 371 S.E.2d 503, 507 (1988), review denied, 323 N.C. 706, 377 S.E.2d 229, cert. denied, 493 U.S. 808, 107 L.Ed.2d 19 (1989), overruled on other grounds by Corum, 330 N.C. 761, 413 S.E.2d 276, citing Harlow v. Fitzgerald, 457 U.S. 800, 73 L.Ed.2d 396 (1982). For clarity, we will address each of plaintiff’s claims separately.

N First Amendment Claim

For plaintiff to maintain a free speech claim under section 1983, plaintiff must first establish that his speech was protected by show ing that “(i) the speech pertained to a matter of public concern and (ii) the public concern outweighed the governmental interest in efficient operations.” Lenzer v. Flaherty, 106 N.C. App. 496, 507, 418 S.E.2d 276, 283, review denied, 332 N.C. 345, 421 S.E.2d 348 (1992), citing Connick v. Myers, 461 U.S. 138, 75 L.Ed.2d 708 (1983). “The determination of whether the conduct is protected activity is a question of law.” Lenzer at 507, 418 S.E.2d at 283, citing Connick, 461 U.S. at 148 n.7, 75 L.Ed.2d at 720 n.7. “A matter is of public concern if when fairly considered it relates ‘to any matter of political, social, or other concern to the community.’ ” Pressman v. University Of N.C. At Charlotte, 78 N.C. App. 296, 300-01, 337 S.E.2d 644, 647 (1985), review allowed, 315 N.C. 589, 341 S.E.2d 28 (1986), citing Connick, 461 U.S. at 146, 75 L.Ed.2d at 719. We must look at the context, form, and content of the employee’s speech to determine whether it is a matter of public concern. Pressman at 301, 337 S.E.2d at 647, citing Connick, 461 U.S. at 147-48, 75 L.Ed.2d at 720.

Here, the only allegation in plaintiff’s complaint of any “speech” is plaintiff’s assertion that when he was asked to give a urine sample, he said that the defendants’ actions “violated his Constitutionally protected rights including his 4th, 5th and 6th Amendment[] [rights].” There is no indication from the record that defendants fired plaintiff for this “speech.” The record indicates that defendants fired plaintiff because he refused to provide a urine sample. One’s simply saying that giving a urine sample violates one’s own Constitutional rights is not a matter of public concern. Cf. Lenzer at 508, 418 S.E.2d at 283 (holding that when a person reports cases of possible patient abuse, that speech is a matter of public concern). Accordingly, plaintiff does not satisfy the first requirement to show that his speech was protected and we need not address the second requirement.

Because we hold that plaintiff’s “speech” here was not protected, we also find that defendants are insulated from liability by the doctrine of qualified immunity. Plaintiff failed to show that there was a “clearly established” right which defendants allegedly violated. Accordingly, we do not address the second prong of the qualified immunity doctrine as it relates to plaintiff’s claim of a free speech violation. The trial court erred in denying defendants’ motion to dismiss as to plaintiff’s free speech claim.

B. Fourteenth Amendment Claim

In his complaint, plaintiff alleges that his termination violated his due process rights guaranteed by the Fourteenth Amendment. Defendants argue that plaintiff failed in his complaint and memorandum in opposition to defendants’ motion to dismiss to show how his due process rights were violated. We agree. Under the doctrine of qualified immunity, the plaintiff bears the burden of establishing that the right violated was clearly established. Clark v. Link, 855 F.2d 156, 160 (4th Cir. 1988). In its recommended decision, the ALJ found that plaintiff and defendants had stipulated that defendants “fully complied with the procedural requirements of Chapter 126 ... and Section 9 of the State Personnel Manual as they relate to the discharge of a full-time State employee.” Chapter 126 sets out the procedures which a discharged employee must follow when contesting termination. This Court has previously stated that these procedures fully protect an employee’s due process rights. Sherrod v. N.C. Dept. Of Human Resources, 105 N.C. App. 526, 531, 414 S.E.2d 50, 53 (1992). Accordingly, defendants did not violate any clearly established due process rights in terminating plaintiff and defendants are entitled to qualified immunity as to plaintiff’s Fourteenth-Amendment due process claim.

C. Fourth Amendment Claim

Plaintiff also alleged in his complaint that defendants violated his rights by requiring him to provide a urine sample which, he argues, constitutes a search under the Fourth Amendment. However, the United States Supreme Court did not declare that a urine test is a search under the Fourth Amendment until 1989 in Skinner v. Railway Labor Exec. Assn., 489 U.S. 602, 103 L.Ed.2d 639 (1989). Defendants asked plaintiff to give a urine sample in 1986. “Only violations of those federal rights ‘clearly recognized in existing case law’ will support an award in damages under 42 U.S.C. § 1983.” Swanson v. Powers, 937 F.2d 965, 968 (4th Cir. 1991), cert. denied, - U.S. -, 116 L.Ed.2d 777 (1992), citing Danenberger v. Johnson, 821 F.2d 361, 365 (7th Cir. 1987). When defendants asked plaintiff to provide a urine sample, there was no clearly established law that restricted the taking of urine specimens. “[Although public officials may be ‘charged with knowledge of constitutional developments, [they] are not required to predict the future course of constitutional law.’ ” Swanson, 937 F.2d at 968, citing Lum v. Jensen, 876 F.2d 1385, 1389 (9th Cir. 1989), cert. denied, 493 U.S. 1057, 107 L.Ed.2d 951 (1990). Accordingly, we hold that defendants did not violate any “clearly established” right in 1986 when they asked plaintiff to provide a urine sample.

EL 42 U.S.C. Section 1981 Claim

Finally, plaintiff alleged in his complaint that he was “systematically discriminated against” because of his race in violation of 42 U.S.C. § 1981. However, at the time of defendants’ alleged violations, section 1981 provided limited protections because it only forbade discrimination in the making and enforcement of contracts. Williams v. First Union Nat. Bank Of N.C., 920 F.2d 232, 234 (4th Cir. 1990), cert. denied, 500 U.S. 953, 114 L.Ed.2d 712 (1991). Section 1981 did not govern a discriminatory discharge action. Id. Section 1981 also did not cover “postformation conduct by the employer relating to the terms and conditions of continuing employment.” Patterson v. McLean Credit Union, 491 U.S. 164, 179, 105 L.Ed.2d 132, 152 (1989). Like the plaintiff in Patterson, plaintiff here alleged that he was discriminated against during his employment. Although the 1991 Civil Rights Act broadened the scope of section 1981, the Fourth Circuit has declined to apply the Act retroactively. Percell v. International Business Machines, Inc., 785 F. Supp. 1229, 1231 (E.D.N.C. 1992), aff'd, 23 F.3d 402 (4th Cir. 1994). (We note that Williams and Patterson were superseded by the Act insofar as they define the present scope of section 1981.) Therefore, we hold that plaintiff here has not stated a claim pursuant to section 1981 because at the time of the alleged statutory violations, section 1981 did not cover the defendants’ alleged actions. Accordingly, we need not address the immunity issue.

As to plaintiff’s claim for injunctive relief, we hold that the trial court should have granted defendants’ motion to dismiss plaintiff’s First Amendment and section 1981 claims because, as we concluded above, plaintiff failed to state a claim. As to plaintiff’s Fourth and Fourteenth Amendment claims, we hold that the trial court did not err in denying defendants’ motion to dismiss.

State Claims

V.

Defendants argue that the trial court erred in denying defendants’ amended motion to dismiss plaintiff’s state claims because defendants in their official capacities are absolutely immune from suit. The doctrine of sovereign immunity protects the State from suit unless it consents to be sued. Because a suit against public officials and public employees in their official capacities is considered a suit against the State, sovereign immunity also protects these individuals from suit. Minneman v. Martin, 114 N.C. App. 616, 618, 442 S.E.2d 564, 566 (1994).

Here, plaintiff argues that the State waived its immunity from suit by entering into a contract of employment with plaintiff. Plaintiff is correct that when the State “enters into a valid contract, the State implicitly consents to be sued for damages on the contract in the event it breaches the contract.” Smith v. State, 289 N.C. 303, 320, 222 S.E.2d 412, 424 (1976). However, neither of plaintiff’s two state claims here are contract claims. One is a tort claim and the other is a state constitutional law claim.'Accordingly, plaintiff’s argument is without merit. The State has not waived its immunity with respect to plaintiff’s tort claim and may assert absolute immunity as to that claim.

As to the state constitutional law claim, defendants also argue that plaintiff cannot maintain this action against the State, its agencies, or employees in their official capacity because there exists an adequate state remedy. Defendants are correct that a direct cause of action under the State Constitution is permitted only “in the absence of an adequate state remedy.” Corum, 330 N.C. at 782, 413 S.E.2d at 289. Here, there is an adequate state remedy for plaintiff’s alleged due process injury. Article 8 of Chapter 126 and Articles 3 and 4 of Chapter 150B of the General Statutes provide for an administrative review of plaintiff’s termination and the right of judicial review of the agency’s decision by the superior court. Accordingly, the trial court erred in denying defendants’ amended motion to dismiss plaintiff’s state constitutional law claim.

VI.

Defendants also argue that the trial court erred in denying their amended motion to dismiss plaintiff’s state claims because defendants in their individual capacities are immune from suit under the doctrine of qualified immunity.

A Tort Claim

“[A] public official, engaged in the performance of governmental duties involving the exercise of judgment and discretion, may not be held personally liable for mere negligence in respect thereto. .. . [A]n official may not be held liable unless [the plaintiff] allege[s] andprove[s] that [the official’s] act, or failure to act, was corrupt or malicious ... or that he acted outside of and beyond the scope of his duties.”

Smith v. State, 289 N.C. 303, 331, 222 S.E.2d 412, 430 (1976), quoting Smith v. Hefner, 235 N.C. 1, 7, 68 S.E.2d 783, 787 (1952). Unlike a public official, a public employee is “ ‘personally liable for his negligence in the performance of his duties proximately causing injury to another.’ ” Harwood v. Johnson, 92 N.C. App. 306, 309-10, 374 S.E.2d 401, 404 (1988), review allowed, 324 N.C. 247, 377 S.E.2d 754 (1989), aff’d in part, rev’d in part on other grounds, 326 N.C. 231, 388 S.E.2d 439 (1990), quoting Givens v. Sellars, 273 N.C. 44, 49, 159 S.E.2d 530, 534-35 (1968). “Malice” is defined as “[t]he intentional doing of a wrongful act without just cause or excuse, with an intent to inflict an injury or under circumstances that the law will imply an evil intent.” Blacks Law Dictionary 1109 (6th ed. 1990). Because malice encompasses intent, we conclude that if a party alleges an intentional tort claim, the doctrine of qualified immunity does not immunize public officials or public employees from suit in their individual capacities. Here, plaintiff alleged that defendants’ actions constituted intentional infliction of emotional distress. Accordingly, the trial court did not err in denying defendants’ motion to dismiss plaintiff’s tort claim.

R State Constitutional Law Claim

As to plaintiff’s state constitution due process claim, defendants argue that North Carolina does not recognize a state claim against state officials in their individual capacities for alleged violations of state constitutional rights. We agree. Our Supreme Court has held that a plaintiff cannot maintain a claim against government employees in their individual capacities for alleged violations of state constitutional free speech rights. Corum v. University Of North Carolina, 330 N.C. 761, 789, 413 S.E.2d 276, 293, reh’g denied, 331 N.C. 558, 418 S.E.2d 664, cert. denied, Durham v. Corum, - U.S. -, 121 L.Ed.2d 431 (1992). Based on the Court’s discussion in Corum, we hold that the Court’s holding applies equally to alleged violations of other state constitutional rights. See Lenzer v. Flaherty, 106 N.C. App. 496, 514, 418 S.E.2d 276, 287 (1992) (agreeing that Corum holds that “State constitutional claims are not cognizable against State actors in their individual capacity”). Accordingly, the trial court erred in denying defendants’ amended motion to dismiss plaintiff’s claims against defendants in their individual capacities for monetary and injunctive relief for alleged violations of the state constitution.

VII.

Defendants also argue that the trial court erred in denying their motion to dismiss plaintiffs claims because they are barred by the doctrines of issue preclusion and exclusive remedy. As we discussed in I, supra, the denial of a motion to dismiss is ordinarily not immediately appealable. Faulkenbury v. Retirement System, 108 N.C. App. 357, 365, 424 S.E.2d 420, 423 (1993). Although interlocutory in nature, an appellate court may address an interlocutory order when it “ ‘deprives the appellant of a substantial right which would be jeopardized absent a review prior to a final determination on the merits.’ ” Jeffreys v. Raleigh Oaks Joint Venture, 115 N.C. App. 377, 379, 444 S.E.2d 252, 253 (1994), quoting Southern Uniform Rentals, Inc. v. Iowa Nat’l Mut. Ins. Co., 90 N.C. App. 738, 740, 370 S.E.2d 76, 78 (1988). The appellant has the burden to show how it will be deprived of a substantial right absent immediate appeal. Jeffreys at 379, 444 S.E.2d at 253. As to defendants’ seventh and eighth assignments of error which deal with issue preclusion and the doctrine of exclusive remedy, defendants have failed to show how the trial court’s order deprives them of a substantial right. “It is not the duty of this Court to construct arguments for or find support for [defendants’] right to appeal from an interlocutory order.” Id. at 380, 444 S.E.2d at 254. Accordingly, we decline to address these two assignments of error.

VIII.

In defendants’ ninth through twelfth assignments of error, defendants claim that the trial court erred in denying defendants’ motion to dismiss because plaintiff’s complaint fails to state a claim under the First, Fourth, and Fourteenth Amendments to the United States Constitution, under the North Carolina Constitution, or under 42 U.S.C. § 1981. We have already concluded that plaintiff fails to state a claim pursuant to 42 U.S.C. § 1981 and pursuant to the First Amendment of the United States Constitution. As to defendants’ contentions concerning plaintiff’s other federal and state constitutional claims, we once again note that the order from which defendants appeal is interlocutory. On this record we hold that defendants will not be deprived of any substantial right by waiting until trial to present their defenses to plaintiff’s remaining constitutional law claims.

IX.

Defendants also argue that plaintiff’s complaint fails to state a claim for intentional infliction of emotional distress and that the trial court erred in signing the order because “it is contrary to law.” Because the trial court’s order is interlocutory and there has been no showing how defendants will be deprived of a substantial right by waiting for a final determination of plaintiff’s emotional distress claim, we do not address these assignments of error.

X.

In summary, the trial court did not err: (1) in denying defendants’ amended motion to dismiss plaintiff’s Fourth and Fourteenth Amendment claims for injunctive relief against defendants in their official and individual capacities, and (2) in denying defendants’ amended motion to dismiss plaintiff’s state tort claim as to all defendants in their individual capacities.

The trial court erred in failing to dismiss: (1) plaintiff’s First Amendment and section 1981 claims for injunctive relief against defendants in their official and individual capacities, (2) plaintiff’s federal claims for monetary damages against defendants in their official capacities and in their individual capacities, (3) plaintiff’s state tort and constitutional claims against defendants in their official capacities, and (4) plaintiff’s state constitution claim against all defendants in their individual capacities. The remaining issues on appeal are interlocutory and premature. This case is remanded to the trial court for further proceedings consistent with this opinion.

Affirmed in part, reversed in part, and remanded.

Chief Judge ARNOLD and Judge WYNN concur.