An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA13-748 NORTH CAROLINA COURT OF APPEALS
Filed: 4 February 2014
CHRISTOPHER W. LIVINGSTON, Plaintiff,
v. Wake County No. 11 CVS 00015 CAROLIN D. BAKEWELL, Esq.; MARGARET CLOUTIER, Esq.; CARMEN H. BANNON, Esq.; In their Individual and official capacities; and THE NORTH CAROLINA STATE BAR, Defendants.
Appeal by plaintiff from order entered 2 January 2013 by
Judge Donald W. Stephens in Wake County Superior Court. Heard
in the Court of Appeals 20 November 2013.
Christopher W. Livingston Esq., pro se.
The North Carolina State Bar, by Deputy Counsel David R. Johnson and Counsel Katherine Jean, for defendant-appellee.
PER CURIAM.
Plaintiff Christopher Livingston appeals the order entered
2 January 2013 dismissing his complaint for failure to state a
claim pursuant to Rule 12(b)(6). On appeal, plaintiff contends
that the trial court erred as a matter of law in dismissing his -2- claims. After careful review, we affirm the trial court’s
order.
Background
In his brief, plaintiff includes a great deal of facts that
are irrelevant to his appeal, including a vast history of
various lawsuits he has either filed or been a part of, none of
which are particularly pertinent to his issues on appeal.
However, the facts necessary to understand the issues on appeal
are the following: Mr. Livingston filed a lawsuit in Wake County
Superior Court on behalf of two individuals against Jessie
Riddle (“Mr. Riddle”), a Utah attorney, Mr. Riddle’s law firm,
and Capital Acquisitions and Management Company (“CAMCO”), an
Illinois company, alleging various causes of action based on
their debt collection actions. The matter was removed to the
U.S. District Court for the Eastern District of North Carolina.
Although Mr. Livingston filed his application for admission to
the U.S. District Court for the Eastern District of North
Carolina, he failed to take the oath of office as required by
court rules.
As the North Carolina case was progressing in District
Court, Mr. Riddle and his law firm commenced an action against
Mr. Livingston and his two clients in a Utah court. Mr. -3- Livingston filed a motion in North Carolina District Court to
stay the Utah action. The matter came on for hearing before the
Honorable Terrence W. Boyle. Judge Boyle not only questioned
Mr. Livingston about his failure to take the oath of office in
order to be admitted in the Eastern District, but he also
criticized Mr. Livingston’s motives for filing the lawsuit.
After the hearing, Mr. Livingston filed a motion to disqualify
Judge Boyle which even Mr. Livingston characterized as
“unprofessional and extremely regrettable.”
Even though Mr. Livingston was not admitted to practice law
in Utah, he filed a pro se motion to dismiss or for summary
judgment on behalf of himself and his clients.
These incidents were reported to the North Carolina State
Bar (“the State Bar”), and it instituted a grievance
investigation. A complaint was filed with the Disciplinary
Hearing Commission (“the DHC”) alleging that Mr. Livingston
engaged in the unauthorized practice of law in both Utah and the
Eastern District and that he engaged in conduct prejudicial to
the administration of justice by filing an unprofessional motion
to recuse Judge Boyle. The DHC concluded that Mr. Livingston
violated Rule 5.5 of the Rules of Professional Conduct by
drafting motions on behalf of his clients for filing in Utah -4- courts when he was not admitted to practice law there.
Moreover, the DHC found that Mr. Livingston engaged in the
unauthorized practice of law by appearing before Judge Boyle
without taking the oath of office. In noting that these
violations were minor, the DHC issued an admonition. With
regard to the motion to recuse Judge Boyle, the DHC found that,
although it was unprofessional, it did not constitute a
violation of the Rules of Professional Conduct and entered
summary judgment in favor of Mr. Livingston. See Order of
Discipline, State Bar v. Livingston, 06 DHC 11 (2008). Over the
next few years, the State Bar investigated several more
grievances against plaintiff. However, it does not seem that
these later grievances have any bearing on the current appeal.
On 31 August 2011, plaintiff filed an amended complaint
against the State Bar and Carolin Bakewell (“Ms. Bakewell”),
Marget Cloutier (“Ms. Cloutier”), and Carmen Bannon (“Ms.
Bannon”), in both their official capacities as counsel for the
State Bar and in their individual capacities asserting the
following causes of action: (1) monetary claims and a request
for injunctive relief pursuant to 42 U.S.C. § 1983; (2) tort
claims for malicious prosecution; and (3) direct state
constitutional claims based on violations of Art. 1, secs. 14, -5- 19, and 36 of our North Carolina Constitution. As an initial
matter, we note that plaintiff’s complaint is often confusing
and includes information related to lawsuits and cases he is
involved with that have nothing to do with the State Bar’s
prosecution of him. On 25 September 2012, defendants filed a
motion to dismiss based on Rule 12(b)(1), (2), and (6). The
matter came on for hearing on 11 December 2012. On 17 December
2012, the trial court entered an order dismissing all of
plaintiff’s claims against all defendants based on Rule
12(b)(6). Plaintiff timely appealed.
Arguments
Initially, we note that plaintiff’s arguments on appeal are
difficult to follow and often include no factual allegations to
support them. However, for the following reasons, we affirm the
trial court’s order as to each claim.
“When reviewing an order of dismissal for failure to state
a claim upon which relief may be granted pursuant to Rule
12(b)(6), we assess the legal sufficiency of the complaint while
taking all of the material factual allegations included therein
as true.” Charlotte Motor Speedway, LLC v. Cnty. of Cabarrus,
__ N.C. App. __, __, 748 S.E.2d 171, 175 (2013). “When
analyzing a 12(b)(6) motion, the [trial] court is to take all -6- factual allegations as true, but should not presume legal
conclusions to be true.” Acosta v. Byrum, 180 N.C. App. 562,
567, 638 S.E.2d 246, 250 (2006). “Dismissal is proper when one
of the following three conditions is satisfied: (1) the
complaint on its face reveals that no law supports the
plaintiff's claim; (2) the complaint on its face reveals the
absence of facts sufficient to make a good claim; or (3) the
complaint discloses some fact that necessarily defeats the
plaintiff’s claim.” Bissette v. Harrod, __ N.C. App. __, __,
738 S.E.2d 792, 797 (internal quotation marks and citations
omitted), disc. review denied, __ N.C. __, 747 S.E.2d 251
(2013).
I. Plaintiff’s 42 U.S.C. § 1983 Claims
Suits for relief from federal constitutional violations are
authorized under Section 1983, which provides:
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. § 1983 (2000). “When Congress enacted 42 U.S.C. § -7- 1983, it conferred upon injured plaintiffs a federal remedy for
violations of federal constitutional rights committed by state
actors.” Gilbert v. N.C. State Bar, 363 N.C. 70, 79-80, 678
S.E.2d 602, 608 (2009). “Evaluation of the applicability of §
1983 claims to the State or state officials is generally
bifurcated according to the kind of relief requested.” Toomer
v. Garrett, 155 N.C. App. 462, 472, 574 S.E.2d 76, 86 (2002).
A. Plaintiff’s Request for Monetary Damages
With regard to monetary damages, our Supreme Court has
concluded that, “when an action is brought under section 1983 in
state court against the State, its agencies, and/or its
officials acting in their official capacities, neither a State
nor its officials acting in their official capacity are
‘persons’ under section 1983 when the remedy sought is monetary
damages.” Corum v. Univ. of N.C., 330 N.C. 761, 771, 413 S.E.2d
276, 282-83 (1992). Accordingly, with regards to plaintiff’s
claims for monetary damages against the State Bar and the other
defendants in their official capacities, plaintiff is not
entitled to relief as a matter of law. Thus, the trial court
did not err in dismissing these claims.
With regard to plaintiff’s claims against defendants in
their individual capacities, “public officials sued in their -8- individual capacities for violations of § 1983 may be held
liable for monetary damages.” Toomer, 155 N.C. App. at 473,
574 S.E.2d at 86. However, defendants may under certain
circumstances raise the doctrine of qualified immunity. Id.
“The defense of qualified immunity shields government officials
from personal liability under § 1983 ‘insofar as their conduct
does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known.’” Id.
Our Court has noted that:
Under the doctrine of qualified immunity, government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Resolution of whether a government official is insulated from personal liability by qualified immunity turns on the objective legal reasonableness of the official’s action assessed in light of the legal rules that were ‘clearly established’ at the time it was taken.
Roberts v. Swain, 126 N.C. App. 712, 718, 487 S.E.2d 760, 765
(internal citations and quotation marks omitted), disc. review
denied, 347 N.C. 270, 493 S.E.2d 746 (1997).
Pursuant to N.C. Gen. Stat. § 84-23(a) (2013), the State
Bar was created by the Legislature to, among other things, -9- regulate the professional conduct of attorneys. In order to do
so, the State Bar is tasked with investigating and prosecuting
matters of attorney misconduct. Id. The procedural rules that
the State Bar must follow in this effort are codified in the
North Carolina Administrative Code. See generally, 27 N.C.A.C.
Ch. 1, Sub. B, § .0100 et seq. (2013).
Here, in the complaint, plaintiff claims that the State Bar
“illegally harassed” him by: (1) not taking any action against
Judge Boyle; (2) taking the side of bill collectors and
corporate lawyers; (3) failing to take action against CAMCO and
Mr. Riddle’s law firm; (4) “obstructing consumer justice by
aiding and comforting scofflaw debt collectors and their
corporate lawyers”; (5) knowingly prosecuting plaintiff on a
false charge of UPL; (6) filing frivolous lawsuits against him;
and (7) acting unprofessionally and arrogantly when plaintiff
tried to discuss the case. While the complaint contains these
types of conclusory allegations, plaintiff provides no factual
basis for them. Moreover, based on our review, we conclude that
defendants’ actions were objectively reasonable and well within
their authority as set out in the administrative rules.
Therefore, defendants, in their individual capacities, are
entitled to the defense of qualified immunity with regard to -10- plaintiff’s § 1983 claims against them.
B. Injunctive Relief
Finally, with regard to plaintiff’s request for injunctive
relief with regard to his § 1983 claims, “where a plaintiff
seeks injunctive relief against the State and its officials,
state officials acting in their official capacities are
considered ‘persons’ under § 1983.” Toomer, 155 N.C. App. at
472-73, 574 S.E.2d at 86. Furthermore, the defense of qualified
immunity is not available in suits for injunctive relief against
the State and its officials acting in their official capacities.
Corum, 330 N.C. at 772, 413 S.E.2d at 283.
In his complaint, plaintiff requests the trial court issue
a permanent injunction prohibiting the State Bar from continuing
with “meritless grievances” now pending against plaintiff and
“forbidding all future illegal harassment of [p]laintiff.”
While it is undisputed that injunctive relief may be an
available remedy for a plaintiff, here, the absence of factual
allegations necessary to establish defendants’ actions were such
that plaintiff was entitled to this type of relief defeats his
claim. The State Bar and the individual defendants, as counsel
for the State Bar, are statutorily required to regulate the
legal profession. While plaintiff may feel as if their -11- prosecution of him was unreasonable, he has failed to include
the facts necessary to prove it. In contrast, nothing in
plaintiff’s complaint or in defendants’ motion to dismiss
indicates that defendants did not pursue their investigation
properly. Therefore, plaintiff is not entitled to prohibit the
State Bar from doing its job when its conduct was reasonable.
Accordingly, the trial court did not err in dismissing this
claim pursuant to Rule 12(b)(6).
II. Plaintiff’s Malicious Prosecution Claims
“Malicious prosecution is a theory applicable to criminal,
civil, and administrative proceedings that have been instituted
with malice and without probable cause.” Gilbert, 363 N.C. at
79, 678 S.E.2d at 607. In order to prevail, a plaintiff must
establish the following elements: “(1) the proceeding was
instituted maliciously; (2) without probable cause; and (3) has
terminated in favor of the person against whom it was
initiated.” Carver v. Lykes, 262 N.C. 345, 352, 137 S.E.2d 139,
145 (1964).
Plaintiff’s claim for malicious prosecution fails for two
reasons. First, there is no indication that defendants acted
without probable cause. In the case against plaintiff, the
Grievance Committee found probable cause and issued a censure. -12- Plaintiff rejected the censure and requested a hearing before
the DHC. Based on that hearing, the DHC issued an admonition
based on plaintiff’s unauthorized practice of law in both Utah
and the Eastern District. While the DHC concluded that
plaintiff’s motion to recuse Judge Boyle did not violate the
Rules of Professional Conduct, even plaintiff characterized his
motion to recuse as “unprofessional.” Thus, while the DHC may
not have specifically disciplined plaintiff for his motion, his
own concession regarding the tone of it establishes that the
Grievance Committee had reason to believe that plaintiff had
violated the Rules of Professional Conduct.
Second, plaintiff has failed to include facts showing that
defendants acted with malice. “Malice in a malicious
prosecution claim may be shown by offering evidence that [a]
defendant was motivated by personal spite and a desire for
revenge or that [a] defendant acted with reckless and wanton
disregard for plaintiffs’ rights.” Kirschbaum v. McLaurin
Parking Co., 188 N.C. App. 782, 789, 656 S.E.2d 683, 688 (2008).
With regard to defendants’ purported acts of malice, plaintiff
alleges, among other things, that defendants: (1) knowingly
falsely prosecuted him for the unauthorized practice of law in
the Eastern District; (2) filed complaints against him solely -13- for the purpose of retaliation and harassment; (3) acted
unprofessionally in their prosecution of him; (4) frivolously
argued wrong law and misrepresented the facts of binding
caselaw; and (5) intentionally wasted his time. Even treating
these allegations as true, they are insufficient to establish
that defendants acted with a personal desire for revenge or were
done in wanton disregard of plaintiff’s rights. Accordingly,
based on both the presence of probable cause and plaintiff’s
inability to establish actual or implied acts of malice,
defendant’s claims for malicious prosecution fail.
III. Plaintiff’s Direct State Constitutional Claims
In his prayer for relief, plaintiff contends that the facts
pled have violated his rights under North Carolina’s Declaration
of Rights. Specifically, plaintiff alleges the following
violations: (1) violation of section 1 by “irrationally treating
persons similarly situated to [him] as being above the law and
allowing them to cause great public harm”; (2) section 5 by
“acting inconsistently with the supremacy of the United States
Constitution”; (3) section 14 by “restraining and punishing
[his] freedom of speech”; and (4) section 19 by “depriv[ing]”
him of property and denying him equal protection. Plaintiff
asserts these claims against defendants in both their official -14- and individual capacities.
A. Claims Against Defendants in their Individual
Capacities
With regard to plaintiff’s claims against Ms. Bakewell, Ms.
Bannon, and Ms. Cloutier in their individual capacities, we note
that “North Carolina does not recognize direct North Carolina
constitutional claims against public officials acting in their
individual capacities.” Bigelow v. Town of Chapel Hill, __ N.C.
App. __, __, 745 S.E.2d 316, 327, disc. review denied, __ N.C.
__, 747 S.E.2d 543 (2013). Thus, we affirm dismissal of all of
plaintiff’s claims against defendants in their individual
capacities.
B. Claims Against Defendants in their Official Capacities
With regard to plaintiff’s direct constitutional claims
against the State Bar and defendants in their official
capacities, our de novo review reveals that plaintiff’s
complaint fails to include the necessary factual allegations to
support his contention that defendants violated sections 1, 5,
14, and 19 of the North Carolina Declaration of Rights. Instead
of providing facts to set out the necessary elements of his
constitutional claims, plaintiff only makes conclusory
statements such as “Ms. Bakewell on behalf of the Bar -15- frivolously argued knowingly wrong law, misrepresented the facts
and holdings of almost every court opinion she cited, and
ignored clear and binding U.S. Supreme Court precedent.”
Similarly, purportedly in support of his equal protection claim,
plaintiff argues that the State Bar does not discipline what
plaintiff refers to as “corporate lawyers” but, instead, only
harasses him. Although we must treat all factual allegations as
true in a plaintiff’s complaint, these types of statements are
conclusory, and they are not entitled to the same presumption on
review. By not providing some factual foundation for these
conclusory allegations, plaintiff’s complaint, on its face, is
insufficient to defeat defendants’ motion to dismiss.
Consequently, we affirm the trial court’s order.
Conclusion
In summary, the trial court did not err in granting
defendants’ motion to dismiss as to all of plaintiff’s claims
for failure to state a claim based on the following reasons.
Because the State Bar and defendants in their official capacity
are not “persons,” plaintiff is not entitled to seek monetary
relief against them pursuant to § 1983. With regard to
plaintiff’s request for monetary damages against defendants in
their individual capacities, defendants are entitled to the -16- defense of qualified immunity and are shielded from liability
under § 1983. Plaintiff’s request for injunctive relief
pursuant to § 1983 fails because he has not included the
necessary factual allegations to establish that he is entitled
to this type of remedy. Plaintiff is not entitled to relief for
his tort claim of malicious prosecution because plaintiff has
failed to establish that defendants acted without probable cause
and with malice. Finally, as a matter of law, plaintiff may not
seek relief against defendants in their individual capacities
for direct constitutional claims under the North Carolina
Constitution. With regard to his direct constitutional claims
against defendants in their official capacities, plaintiff’s
claims fail because plaintiff has not included the necessary
factual allegations to support his claims.
AFFIRMED.
Panel consisting of: Judges HUNTER, Robert C., CALABRIA, and HUNTER, JR., Robert N.
Report per Rule 30(e).