Opinion of the Court
his claim under the North Carolina Constitution.
I. Background
Plaintiff alleges the following facts. At seven and a half months pregnant with
K’yson Kawhi Finley, Decedent Tiyquasha Simuel testified in her ex-boyfriend’s
capital murder trial pursuant to a Buncombe County District Attorney Office
(“BCDA”) subpoena. During this time, two BCDA assistant district attorneys
(“ADAs”) provided Decedent with law enforcement protection and a hotel room.
Following Decedent’s testimony for the BCDA, the BCDA released Decedent from its
subpoena and canceled the accompanying law enforcement protection and hotel
reservation. However, the defense attorney at trial served Decedent with another
subpoena, requiring Decedent to remain in Asheville. During trial, two jurors’ lives
were threatened and, as a result, the trial judge provided those jurors with law
enforcement protection. On or around 13 June 2019, while still in Asheville on the
defense attorney’s subpoena, Decedent was shot and killed while riding in a car on
the way to her friend’s home.
Plaintiff filed claims for wrongful death/negligence in the North Carolina
Industrial Commission under the State Tort Claims Act (the “Act”). On 28 March
2023, the Full Commission dismissed Plaintiff’s claim without prejudice for lack of
subject matter jurisdiction. Plaintiff did not appeal this order.
Approximately a year after the dismissal, on 21 March 2024, Plaintiff
commenced this action in superior court against Defendant, alleging claims based on
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equal protection grounds under Article I, Section 19 of our state constitution.
Defendant moved to dismiss Plaintiff’s Complaint on various grounds. The trial court
entered a Dismissal Order allowing Defendant’s motion to dismiss pursuant to Rule
12(b)(6). Plaintiff appealed.
II. Analysis
The trial court dismissed Plaintiff’s Complaint pursuant to Rule 12(b)(6) with
prejudice for failure to state a claim upon which relief can be granted. In allowing
Defendant’s motion to dismiss, the trial court considered “the pleadings, the
memoranda and arguments of counsel, and relevant case law.” The trial judge did
not state specific grounds for dismissal. On de novo review, we affirm the trial court’s
order, concluding Plaintiff has failed to state a claim upon which relief may be
granted. Assuming, but not deciding, other grounds warrant dismissal, we address
the merits of Plaintiff’s Corum claim.
A. Standard of Review
“Questions of law regarding the applicability of sovereign or governmental
immunity are reviewed de novo.” Lannan v. Bd. of Governors of Univ. of N.C., 387
N.C. 239, 246 (2025) (citing Irving v. Charlotte-Mecklenburg Bd. of Educ., 368 N.C.
440, 448 (2016)). De novo review also applies to a lower court’s ruling on a Rule
12(b)(6) motion to dismiss. Lannan, 387 N.C. at 246 (citing Arnesen v. Rivers Edge
Golf Club & Plantation Inc., 386 N.C. 440, 448 (2015)). A Rule 12(b)(6) motion treats
the factual allegations in a complaint as true, and based on such, tests whether a
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complaint states a legal claim. Sutton v. Duke, 277 N.C. 94, 98 (1970). Generally,
our system of “notice pleading” provides a liberal construction of complaints, making
a motion to dismiss easy to survive. See N.C.G.S. § 1A-1, Rule 8(a); Ladd v. Est. of
Kellenberger, 314 N.C. 477, 481 (1985).
However, Corum claims have unique pleading requirements. Our Supreme
Court has stated, “it is not enough for a claimant to simply assert that a claim is valid
under Corum . . . [at the outset], the complaint must ‘sufficiently allege’ a Corum
claim.” Kinsley v. Ace Speedway, 386 N.C. 418, 423 (2024) (citing Deminski v. State
Bd. of Educ., 377 N.C. 406, 407 (2021)). The Court in Ace Speedway then stated the
three requirements of a sufficiently alleged Corum claim, namely, (1) a state actor
constitutional violation, (2) a colorable claim, and (3) no adequate state remedy. Ace
Speedway, 386 N.C. at 423.
B. State Constitutional Claim
Plaintiff asserts the equal protection claim under Article I, Section 19 of our
state constitution is a “Corum claim.” Our constitution sets out in its Declaration of
Rights “[n]o person shall be denied the equal protection of the laws[.]” N.C. Const.
art. I, § 19. A claimant may bring a direct claim under the state constitution under
the framework of Corum. A Corum claim requires a plaintiff to colorably allege a
state actor violated constitutional rights to which there is no adequate state remedy.
Corum v. Univ. of N.C., 330 N.C. 761, 782 (1992). According to Plaintiff’s Complaint,
two ADAs, as employees of Defendant, denied Decedent equal protection of the law
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because of her gender.
Plaintiff’s claim, however, fails because he has failed to state a colorable claim.
A colorable constitutional claim requires sufficient facts to support an alleged
violation of a protected right under the state Constitution. Deminski, 377 N.C. at
413–14. Whether a claim is colorable focuses only on the allegations in a complaint.
Id. at 412. The complaint allegations are “treated as true” and this Court examines
whether the allegations, if proven, would constitute a violation of a right protected by
our state constitution. Id.
Plaintiff contends the standard for alleging a proper Corum claim is “notice
pleading.” See N.C.G.S. § 1A-1, Rule 8(a). Plaintiff is incorrect. As previously
mentioned, our Supreme Court stated, “it is not enough for a claimant to simply assert
that a claim is valid under Corum . . . the complaint must ‘sufficiently allege’ a Corum
claim.” Ace Speedway, 386 N.C. at 423 (citing Deminski, 377 N.C. at 407). The Court
in Ace Speedway then goes on to state the three requirements of a Corum claim. Id.
Therefore, a plaintiff must allege sufficient facts to support a Corum claim, not just
state there is a claim.
Therefore, we assess whether Plaintiff sufficiently alleged a colorable Corum
equal protection claim based on group classification or based on a “class of one.” In
doing so, we accept the allegations in Plaintiff’s Complaint as true and examine
whether those allegations, if proven, satisfy the requirements for a colorable equal
protection claim. Deminski, 377 N.C. at 412.
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“A typical equal protection claim alleges that the plaintiff was treated
differently by legislation or a state actor due to their membership in a suspect class:
race, color, religion, national origin, etc.” Mole’ v. City of Durham, 279 N.C. App. 583,
596 (citing Engquist v. Or. Dep’t of Agric., 553 U.S. 591, 601 (2008)). Thus, a typical
state equal protection claim is premised on group classification and provides the right
to not be treated differently based on your race, sex, national origin, etc. N.C. Const.
art. I, § 19; see e.g., Dep’t of Transp. v. Rowe, 353 N.C. 671 (2001). Gender is included
among equal protection as a group classification. See State v. Richardson, 385 N.C.
101, 203 (2023) (“Intentional discrimination on the basis of gender by state actors
violates the Equal Protection Clause[.]”) (citing J.E.B. v. Alabama ex rel. T.B., 511
U.S. 127, 130–31 (1994)); see also N.C. Const. art. 1, § 19.
In the present case, Plaintiff fails to allege Decedent received different
treatment from others similarly situated based on gender. Plaintiff’s Complaint does
not state the gender of the two jurors, making it unknown if the ADAs treated
Decedent differently from the two jurors because of her gender. Here, the ADAs
canceled Decedent’s law enforcement protection and hotel reservation. The trial
judge provided the two jurors with law enforcement protection. The ADAs did not
take action toward the two jurors in regard to providing or canceling the two jurors’
law enforcement protection. Plaintiff’s allegations, if proven, fail to establish the
ADAs treated Decedent differently because of her gender. Therefore, Plaintiff fails
to state sufficient facts to support an equal protection claim against Defendant
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through the ADAs based on group classification.
Alternatively, an equal protection claim may also be alleged under a “class of
one” theory. See Willowbrook v. Olech, 528 U.S. 562, 564 (2000); In re Application of
Ellis, 277 N.C. 419, 424–25 (1970); Toomer v. Garrett, 155 N.C. App. 462, 477–78
(2002). A class of one equal protection claim requires an allegation that a state actor
“intentionally treated [a party] differently from others similarly situated and that
there is no rational basis for the difference in treatment.” Olech, 528 U.S. at 564.
For example, in Olech, the plaintiffs were required to give the village a 33-foot
easement in exchange for water supply from the village. Id. at 565. The plaintiffs
refused to give the easement, indicating other village property owners had been asked
to grant only a 15-foot easement. Id. The plaintiffs sued alleging an equal protection
violation, labeling the village’s request as irrational, arbitrary, and vindictive
towards plaintiffs regarding a former lawsuit; and based on an intentional reckless
disregard for plaintiffs’ rights. Id. at 563. The United States Supreme Court held
the plaintiffs were permitted to bring their “class of one claim” and the plaintiffs
stated a claim because the allegations stated the village intentionally imposed
different requirements on the plaintiffs and the demand was “irrational and wholly
arbitrary.” Id. at 565.
Here, Plaintiff’s class of one theory fails. First, Plaintiff alleges (1) Decedent
feared of coming to Asheville absent law enforcement protection, and (2) during trial,
Defendant made handgun gestures at Decedent. Plaintiff does not allege Defendant’s
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cancellation of law enforcement protection and hotel reservation were irrational or
arbitrary. Additionally, there are no facts to suggest the ADAs intentionally treated
Decedent differently than the jurors in removing the law enforcement protection.
While not explicitly stated in Olech, the class of one theory is seemingly premised on
state action by the same state actor. Here, the ADAs canceled Decedent’s law
enforcement protection and hotel reservation, but the trial judge provided protection
for the two jurors. The ADAs took no intentional action to provide or cancel law
enforcement protection to the jurors; they only acted towards Decedent.
Therefore, because Defendant took no intentional act towards the jurors,
Plaintiff’s argument on a class of one theory fails. See also Toomer, 155 N.C. App. at
477 (holding NCDOT secretary and two other employees (“defendants”) acted in an
arbitrary, capricious, intentional, willful, and “wholly without justification in fact or
in law” when defendants released confidential personnel file to the media, while
defendants did not release other similarly situated employees’ files). Therefore,
Plaintiff fails to state a colorable claim on a class of one equal protection theory.
We conclude Plaintiff fails to state a proper Corum claim because he fails to
allege specific facts to support a colorable equal protection violation claim. The trial
court properly dismissed Plaintiff’s claim under Rule 12(b)(6). Accordingly, this
Court will not address the other procedural or merit-based arguments by either party.
III. Conclusion
We affirm the decision of the trial court.
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AFFIRMED.
Judges GRIFFIN and FLOOD concur.
Report per Rule 30(e).
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