Price v. Yuengling

• Court: Court of Appeals of North Carolina
• Decided: July 2, 2025
• Docket: 24-522
• Status: Unpublished

Opinion

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA24-522

Filed 2 July 2025

Durham County, No. 18CVS001380-310

JAMES E. PRICE, Plaintiff,

v.

DUSTIN YUENGLING, ET AL., Defendants.

Appeal by Plaintiff from orders entered: 24 April 2019, by Judge John M.

Dunlow; 23 July 2021, by Judge John W. Smith; 20 September 2023, by Judge John

M. Dunlow; and 4 January 2024, by Judge Michael J. O’Foghludha in Durham

County Superior Court. Heard in the Court of Appeals 28 January 2025.

James E. Price, pro se Plaintiff-Appellant.

Durham City Attorney’s Office, by John P. Roseboro for Defendant-Appellees The City of Durham, et al.

Attorney General Jeff Jackson, by Special Deputy Attorney General Elizabeth Curran O’Brien, for Defendant-Appellees D.C. Robinson, et al.

CARPENTER, Judge.

James E. Price (“Plaintiff”) appeals from the trial court’s: (1) 24 April 2019

orders granting the motions to dismiss filed by Magistrate D.C. Robinson, Assistant PRICE V. YUENGLING

Opinion of the Court

District Attorney (“ADA”) Cynthia B. Kenney, the City of Durham, and Officers

Dustin Yuengling, Ronald Mbuthia, and Jennifer Hollingsworth; (2) 23 July 2021

order denying Plaintiff’s motion for entry of default judgment; (3) 20 September 2023

order granting summary judgment in favor of Officers Yuengling, Mbuthia, and

Hollingsworth; and (4) 4 January 2024 order denying Plaintiff’s motion for an order

of production of stenographic transcripts. After careful review, we dismiss Plaintiff’s

appeal as interlocutory.

I. Factual & Procedural Background

This appeal arises from a lawsuit initiated by Plaintiff against eleven

Defendants: (1) the City of Durham; (2) the County of Durham; (3) Officer Yuengling,

in his individual and official capacity; (4) Officer Mbuthia, in his individual and

official capacity; (5) Officer Hollingsworth, in her individual and official capacity; (6)

the City of Durham Police Department; (7) Magistrate Robinson, in his individual

and official capacity; (8) Sheriff Michael D. Andrews, in his individual and official

capacity; (9) Deputy Sheriff J. Gryder, in his individual and official capacity; (10)

Deputy Sheriff Geoffrey Middleton, in his individual and official capacity; and (11)

ADA Kenney, in her individual and official capacity. Plaintiff’s complaint asserted

multiple causes of action arising from his 14 October 2015 arrest and the related

proceedings.

In October 2015, Plaintiff was living in an apartment with Anthony Phoenix

in Durham, North Carolina. On 14 October 2015, Phoenix and his ex-girlfriend,

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Miracle Barnes, called 9-1-1 to report that Plaintiff had exposed himself to Barnes’

four-year-old daughter. Officers Mbuthia, Yuengling, and Hollingsworth, with the

City of Durham Police Department, responded to the call and arrived at the

apartment to investigate.

Upon arrival, Officer Hollingsworth spoke with Barnes and her daughter

outside of the apartment. Barnes informed Officer Hollingsworth that Barnes and

her daughter were at Phoenix’s apartment because they needed a place to stay after

losing their home. Barnes told Officer Hollingsworth that after bathing and putting

her daughter upstairs in Phoenix’s bedroom for the night, she went downstairs to sit

with Phoenix. While downstairs, Barnes heard her daughter crying so she went back

upstairs to see what was wrong. Barnes’ daughter explained that Plaintiff tried to

get her to come into his room and then he “showed [her] his private parts.”

After speaking with Barnes and Phoenix, the officers went inside the

apartment and entered Plaintiff’s bedroom where they found Plaintiff lying in his bed

wearing only a shirt with his genitals uncovered and exposed. Officers advised

Plaintiff that he was under arrest and told him to get out of bed and get dressed.

According to Plaintiff, when he asked the officers why he was under arrest, Officer

Yuengling responded, “you’re under arrest for indecent exposure.” When Plaintiff did

not get out of bed, officers forcibly removed him from his bed, handcuffed him, and

helped him put on a pair of gym shorts. The officers placed Plaintiff inside a patrol

car and transported him to the Durham County Detention Center where he appeared

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before the magistrate on duty, Magistrate Robinson. Magistrate Robinson issued a

magistrate’s order for indecent liberties with a child.

On 2 November 2015, ADA Kenney presented a bill of indictment to a Durham

County grand jury for the offenses of taking indecent liberties with a child and

attempted first-degree kidnapping, but the grand jury did not return a true bill of

indictment. On 16 November 2015, ADA Kenney presented a bill of indictment to a

Durham County grand jury for the offense of taking indecent liberties with a child.

This time, the grand jury returned a true bill of indictment. On 13 August 2018, ADA

Kenney, Plaintiff, and Plaintiff’s attorney signed a superceding bill of information

charging Plaintiff with one count each of: taking indecent liberties with a child and

indecent exposure in a private place. That same day, Plaintiff pleaded guilty to:

indecent exposure to a child in private and possessing an image of secret peeping.

Plaintiff appealed his criminal conviction.1

On 17 October 2018, Plaintiff filed an amended civil complaint. As far as we

are able to discern, the claims Plaintiff asserted in his amended civil complaint can

be summarized as follows. As against the City of Durham: vicarious liability for

Officers Yuengling, Mbuthia, and Hollingsworth’s conduct. As against the County of

Durham: vicarious liability for Magistrate Robinson and Sheriffs Andrews, Gryder,

1 This Court set aside Plaintiff’s plea agreement and remanded his case to the trial court

because the statute under which Plaintiff was convicted was not in effect at the time Plaintiff’s alleged crimes were committed. See State v. Price, 274 N.C. App. 250, 848 S.E.2d 757 (2020) (unpublished).

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and Middleton’s conduct. As against Officers Yuengling, Mbuthia, and

Hollingsworth: violation of due process and equal protection, false imprisonment,

assault, and battery. As against the City of Durham Police Department: vicarious

liability for Officers Yuengling, Mbuthia, and Hollingsworth’s conduct. As against

Magistrate Robinson: violation of due process and equal protection, false

imprisonment, and deprivation of a neutral and detached magistrate. As against

Sheriffs Andrews, Gryder, and Middleton: negligence, or in the alternative,

intentional damage to property, and a violation of the constitutional right to be secure

in one’s person and effects. Finally, as against ADA Kenney: violation of due process

and equal protection, malicious prosecution, and deprivation of a fair and impartial

grand jury and prosecutor.

On 22 January 2019, Magistrate Robinson and ADA Kenney filed a motion to

dismiss, arguing Plaintiff’s claims against them were barred by absolute judicial

immunity and absolute prosecutorial immunity, respectively. On 28 January 2019,

the City of Durham filed a motion to dismiss, arguing Plaintiff’s claims were barred

by governmental immunity. Also on 28 January 2019, Officers Yuengling, Mbuthia,

and Hollingsworth filed a motion to dismiss, arguing Plaintiff’s claims against them

were barred by governmental immunity, qualified immunity, and public official

immunity.

On 24 April 2019, the trial court granted Magistrate Robinson, ADA Kenney,

and the City of Durham’s motions to dismiss. That same day, the trial court also

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granted Officers Yuengling, Mbuthia, and Hollingsworth’s motion to dismiss the

claims against them in their official capacity, but denied their motion as to the claims

against them in their individual capacity.

On 20 July 2021, Plaintiff filed a motion for entry of default against Officers

Yuengling, Mbuthia, and Hollingsworth, as the officers had not filed an answer to

Plaintiff’s complaint following the trial court’s 24 April 2019 order denying in part

their motion to dismiss. On 23 July 2021, the trial court denied Plaintiff’s motion,

concluding Officers Yuengling, Mbuthia, and Hollingsworth had shown good cause

and that the best interest of justice would be served by allowing them a reasonable

time to file their answers. In making its determination, the trial court noted that

Plaintiff, in response to the trial court’s previous orders, filed a notice of appeal to

this Court, but did not take any further action to file or perfect the appeal.

On 30 July 2021, Officers Yuengling, Mbuthia, and Hollingsworth filed an

answer to Plaintiff’s complaint asserting several affirmative defenses including

public official immunity and qualified immunity. On 22 June 2023, Officers

Yuengling, Mbuthia, and Hollingsworth filed a motion for summary judgment. On

11 September 2023, the trial court conducted a hearing on the matter and granted

summary judgment on 20 September 2023, concluding there was no genuine issue of

material fact and the movants were entitled to judgment as a matter of law.

On 16 October 2023, Plaintiff filed written notice of appeal from the trial

court’s: 24 April 2019 orders granting the motions to dismiss; 23 July 2021 order

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denying Plaintiff’s motion for default judgment; and 20 September 2023 order

granting Officers Yuengling, Mbuthia, and Hollingsworth’s motion for summary

judgment.

Also on 16 October 2023, Plaintiff filed a motion for order of production of

stenographic transcripts, requesting the trial court order the State to provide

Plaintiff with transcripts from the default judgment and summary judgment

hearings at the State’s expense. On 4 January 2024, the trial court denied Plaintiff’s

motion, concluding Plaintiff had not shown good cause for issuance of the order. On

23 January 2024, Plaintiff filed notice of appeal from the trial court’s 4 January 2024

order.

II. Jurisdiction

As an initial matter, we address whether this appeal is properly before us.

Generally, this Court does not hear appeals unless a final judgment has been entered.

See Denney v. Wardson Construction, Inc., 264 N.C. App. 15, 17, 824 S.E.2d 436, 438

(2019). “ ‘A final judgment is one which disposes of the cause as to all the parties,

leaving nothing to be judicially determined between them in the trial court.’ ” Duval

v. OM Hospitality, LLC, 186 N.C. App. 390, 392, 651 S.E.2d 261, 263 (2007) (quoting

Veazey v. City of Durham, 231 N.C. 357, 361–62, 57 S.E.2d 377, 381 (1950)).

Conversely, “[a]n interlocutory order is one made during the pendency of an action,

which does not dispose of the case, but leaves it for further action by the trial court

in order to settle and determine the entire controversy.” Veazey, 231 N.C. at 362, 57

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S.E.2d at 381. “[T]here is no right of immediate appeal from interlocutory orders and

judgments,” Goldston v. American Motors Corp., 326 N.C. 723, 725, 392 S.E.2d 735,

736 (1990), predominately because such “fragmentary and premature” appeals

“encourage and facilitate delays, increase costs and multiply appeals,” Cole v.

Farmers Bank & Trust Co., 221 N.C. 249, 252, 20 S.E.2d 54, 56 (1942).

There are exceptions to this rule, however. First, interlocutory orders are

“immediately appealable if the order represents ‘a final judgment as to one or more

but fewer than all of the claims or parties only if there is no just reason for delay and

it is so determined in the judgment.’” Pentecostal Pilgrims & Strangers Corp. v.

Connor, 202 N.C. App. 128, 132, 688 S.E.2d 81, 84 (2010) (quoting N.C. Gen. Stat. §

1A-1, Rule 54(b) (2009)). To proceed under this exception, the trial court must certify

in the order that there is no just reason to delay the appeal. See James River

Equipment, Inc. v. Tharpe’s Excavating, Inc., 179 N.C. App. 336, 339, 634 S.E.2d 548,

552 (2006); N.C. Gen. Stat. § 1A-1, Rule 54(b) (2023).

Alternatively, if the trial court has not certified the order under Rule 54(b), a

party may still appeal an interlocutory order “[w]hen the challenged order affects a

substantial right.” Denney, 264 N.C. App. at 17, 824 S.E.2d at 438; see N.C. Gen.

Stat. § 7A-27(b)(3) (2023).

In the instant case, Plaintiff sought relief against the aforementioned eleven

Defendants. On 24 April 2019, the trial court granted the City of Durham’s motion

to dismiss, Officers Yuengling, Mbuthia, and Hollingsworth’s motion to dismiss the

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claims against them in their official capacity, and Magistrate Robinson and ADA

Kenney’s motion to dismiss the claims against them in both their individual and

official capacity. Several years later, on 20 September 2023, the trial court granted

Officers Yuengling, Mbuthia, and Hollingsworth’s motion for summary judgment as

to the claims against them in their individual capacity.

The claims Plaintiff asserted against the County of Durham, the City of

Durham Police Department, and Sheriffs Andrews, Gryder, and Middleton, however,

were not dismissed by the trial court. Indeed, there is no indication in the record that

these Defendants filed motions to dismiss or motions for summary judgment. Thus,

according to the record before us, those claims are still pending. Although the trial

court’s grant of the aforementioned motions were final judgments as to those

Defendants, they were not a final judgment as to all the parties because the trial

court’s orders did not “dispose of the case.” See Veazey, 231 N.C. at 362, 57 S.E.2d at

381. Accordingly, Plaintiff’s appeal is interlocutory.

Because Plaintiff’s appeal is interlocutory, it is his burden to sufficiently brief

the threshold question of jurisdiction. See Doe v. City of Charlotte, 273 N.C. App. 10,

22, 848 S.E.2d 1, 10 (2020). In his statement of the grounds for appellate review,

Plaintiff acknowledges the orders from which he appeals are interlocutory and

asserts that “there is no reason for further delay in the hearing of the appeal of this

matter.” But the trial court did not certify that there was no just reason for delay in

any of the orders from which Plaintiff appeals. See N.C. Gen. Stat. § 1A-1, Rule 54(b).

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Furthermore, Plaintiff has not asserted that this appeal affects a substantial right.

See N.C. Gen. Stat. § 7A-27(b)(3). In sum, Plaintiff’s appeal is interlocutory, and he

has failed to show an exception applies. Accordingly, we lack jurisdiction and dismiss

Plaintiff’s appeal.

III. Conclusion

Plaintiff’s appeal is interlocutory. Because the orders were not certified, and

Plaintiff has not shown that his appeal affects a substantial right, we dismiss

DISMISSED.

Judges TYSON and FREEMAN concur.

Report per Rule 30(e).

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