{ "id": 8526099, "name": "JOHN HAWKINS, Plaintiff v. STATE OF NORTH CAROLINA; N.C. DEPARTMENT OF HUMAN RESOURCES; WESTERN CAROLINA CENTER; J. IVERSON RIDDLE, both individually and in his representative capacity as Director of Western Carolina Center; PHILLIP J. KIRK, JR., individually and in his representative capacity as Secretary of the North Carolina Department of Human Resources; EARLINE BOYD BROWN, individually and in her representative capacity, RHONDA BENGE, individually and in her representative capacity, SUZANNE WILLIAMS, individually and in her capacity, VICKI CASH, individually and in her capacity, and RALPH KEATON, individually and in his capacity, Defendants", "name_abbreviation": "Hawkins v. State", "decision_date": "1995-02-07", "docket_number": "No. 9225SC154", "first_page": "615", "last_page": "632", "citations": [ { "type": "official", "cite": "117 N.C. App. 615" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "63 ALR Fed. 744", "category": "reporters:federal", "reporter": "A.L.R. Fed.", "opinion_index": -1 }, { "cite": "116 L. Ed. 2d 965", "category": "reporters:federal", "reporter": "L. Ed. 2d", "opinion_index": -1 }, { "cite": "47 ALR Fed. 15", "category": "reporters:federal", "reporter": "A.L.R. Fed.", "opinion_index": -1 }, { "cite": "43 L. Ed. 2d 833", "category": "reporters:federal", "reporter": "L. Ed. 2d", "weight": 4, "opinion_index": -1 }, { "cite": "105 L. Ed. 2d 721", "category": "reporters:federal", "reporter": "L. 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App.", "case_ids": [ 8524345 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "365" }, { "page": "365" } ], "opinion_index": 0, "case_paths": [ "/nc-app/108/0357-01" ] } ], "analysis": { "cardinality": 1248, "char_count": 41786, "ocr_confidence": 0.746, "pagerank": { "raw": 5.783628404953394e-07, "percentile": 0.9509983014453739 }, "sha256": "88964a7a029d8fd6b8a551e35930e1f4b0f05f4c08a1c8f18f68a97f6f2092bd", "simhash": "1:3178781e185d8bd4", "word_count": 6652 }, "last_updated": "2023-07-14T20:31:41.091249+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge ARNOLD and Judge WYNN concur." ], "parties": [ "JOHN HAWKINS, Plaintiff v. STATE OF NORTH CAROLINA; N.C. DEPARTMENT OF HUMAN RESOURCES; WESTERN CAROLINA CENTER; J. IVERSON RIDDLE, both individually and in his representative capacity as Director of Western Carolina Center; PHILLIP J. KIRK, JR., individually and in his representative capacity as Secretary of the North Carolina Department of Human Resources; EARLINE BOYD BROWN, individually and in her representative capacity, RHONDA BENGE, individually and in her representative capacity, SUZANNE WILLIAMS, individually and in her capacity, VICKI CASH, individually and in her capacity, and RALPH KEATON, individually and in his capacity, Defendants" ], "opinions": [ { "text": "EAGLES, Judge.\nI.\nWe 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\u2019d, 335 N.C. 158, 436 S.E.2d 821 (1993). Here, defendants asserted the defenses of absolute and qualified immunity to most of plaintiff\u2019s 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\u2019 appeal from the trial court\u2019s denial of defendants\u2019 motions to dismiss is properly before us.\nWe also note initially that although plaintiff alleged in his complaint that defendants violated his rights under 28 U.S.C. \u00a7\u00a7 1981 and 1983, both parties treated the claims as pursuant to 42 U.S.C. \u00a7\u00a7 1981 and 1983. Accordingly, we treat the claims as pursuant to 42 U.S.C. \u00a7\u00a7 1981 and 1983.\nStandard of Review\n\u201cWhen 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\u2019s recovery.\u201d Locus v. Fayetteville State University, 102 N.C. App. 522, 527, 402 S.E.2d 862, 866 (1991) (emphasis omitted).\nII.\nDefendants 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 \u201csavings\u201d 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\u2019s decision in Estrada v. Burnham, 316 N.C. 318, 341 S.E.2d 538 (1986). We disagree because Estrada is distinguishable.\nIn Estrada, the North Carolina Supreme Court stated that although \u201cRule 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).\u201d Estrada at 323, 341 S.E.2d at 542. The Court concluded that a plaintiff cannot use the \u201csavings\u201d provision of Rule 41(a)(1) when the plaintiff files the first complaint solely with the \u201cintention of dismissing it in order to avoid the lapse of the statute of limitations.\u201d 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 \u201csavings\u201d provision.\nAs the court in Estrada noted, \u201cappellate court[s] cannot make findings of fact.\u201d Id. at 324, 341 S.E.2d at 543. However, in Estrada, the Court had before it the judicial admission of plaintiff\u2019s counsel that \u201c \u2018[c]learly there was an intent on our part not to prosecute [the first] action.\u2019 \u201d Estrada at 325, 341 S.E.2d at 543. This admission enabled the Court to reach the conclusion that the plaintiff had a \u201cbad\u201d intent. Here, there is no evidence of record that plaintiff\u2019s sole intent in filing the first complaint was to dismiss it in order to gain another year in which to file a \u201csufficient\u201d 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 \u201csavings\u201d provision of Rule 41(a)(1) properly applied to plaintiffs complaint and that his second complaint was not barred by the statute of limitations.\nFederal Claims\nIII.\nDefendants argue that the trial court erred in denying defendants\u2019 amended motion to dismiss plaintiffs federal claims because the defendants in their official capacities are not \u201cpersons\u201d within the meaning of 42 U.S.C. \u00a7 1983. Section 1983 provides that:\nEvery 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.\n42 U.S.C.A. \u00a7 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 \u201cneither a State nor its officials acting in their official capacities are \u2018persons\u2019 under \u00a7 1983.\u201d While the Court opined that state officials are \u201cliterally .. . persons,\u201d the opinion holds that \u201ca 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\u2019s office.\u201d 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). \u201cAs such, it is no different from a suit against the State itself.\u201d Will, 491 U.S. at 71, 105 L.Ed.2d at 58. Because defendants in their official capacities are not \u201cpersons\u201d within the meaning of section 1983 for recovering money damages, we hold that the trial court erred in denying defendants\u2019 amended motion to dismiss plaintiff\u2019s federal claims against defendants in their official capacities for monetary damages.\nPlaintiff also argues that defendants are \u201cpersons\u201d here and liable because their actions establish a \u201cgovernmental custom\u201d of Constitutional 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. \u201c[Ujnlike various government officials, municipalities do not enjoy immunity from suit \u2014 either absolute or qualified \u2014 under \u00a7 1983. In short, a municipality can be sued under \u00a7 1983, but it cannot be held liable unless a municipal policy or custom caused the constitutional injury.\u201d 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\u2019 actions were pursuant to a \u201cgovernmental custom.\u201d\nAs to plaintiffs claim for injunctive relief under section 1983, defendants are \u201cpersons.\u201d 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.\nIV.\nDefendants also argue that the trial court erred in denying defendants\u2019 amended motion to dismiss plaintiff\u2019s federal claims because defendants in their individual capacities are immune from suit under the doctrine of qualified immunity. \u201c[S]tate governmental officials [may] be sued in their individual capacities for [monetary] damages under section 1983.\u201d Corum v. University of North Carolina, 330 N.C. 761, 772, 413 S.E.2d 276, 283, reh\u2019g 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. \u201cTo 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.\u201d 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\u2019s claims separately.\nN First Amendment Claim\nFor plaintiff to maintain a free speech claim under section 1983, plaintiff must first establish that his speech was protected by showing that \u201c(i) the speech pertained to a matter of public concern and (ii) the public concern outweighed the governmental interest in efficient operations.\u201d 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). \u201cThe determination of whether the conduct is protected activity is a question of law.\u201d 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. \u201cA matter is of public concern if when fairly considered it relates \u2018to any matter of political, social, or other concern to the community.\u2019 \u201d 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\u2019s 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.\nHere, the only allegation in plaintiff\u2019s complaint of any \u201cspeech\u201d is plaintiff\u2019s assertion that when he was asked to give a urine sample, he said that the defendants\u2019 actions \u201cviolated his Constitutionally protected rights including his 4th, 5th and 6th Amendment[] [rights].\u201d There is no indication from the record that defendants fired plaintiff for this \u201cspeech.\u201d The record indicates that defendants fired plaintiff because he refused to provide a urine sample. One\u2019s simply saying that giving a urine sample violates one\u2019s 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.\nBecause we hold that plaintiff\u2019s \u201cspeech\u201d 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 \u201cclearly established\u201d right which defendants allegedly violated. Accordingly, we do not address the second prong of the qualified immunity doctrine as it relates to plaintiff\u2019s claim of a free speech violation. The trial court erred in denying defendants\u2019 motion to dismiss as to plaintiff\u2019s free speech claim.\nB. Fourteenth Amendment Claim\nIn 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\u2019 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 \u201cfully 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.\u201d 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\u2019s 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\u2019s Fourteenth-Amendment due process claim.\nC. Fourth Amendment Claim\nPlaintiff 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. \u201cOnly violations of those federal rights \u2018clearly recognized in existing case law\u2019 will support an award in damages under 42 U.S.C. \u00a7 1983.\u201d 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. \u201c[Although public officials may be \u2018charged with knowledge of constitutional developments, [they] are not required to predict the future course of constitutional law.\u2019 \u201d 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 \u201cclearly established\u201d right in 1986 when they asked plaintiff to provide a urine sample.\nEL 42 U.S.C. Section 1981 Claim\nFinally, plaintiff alleged in his complaint that he was \u201csystematically discriminated against\u201d because of his race in violation of 42 U.S.C. \u00a7 1981. However, at the time of defendants\u2019 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 \u201cpostformation conduct by the employer relating to the terms and conditions of continuing employment.\u201d 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\u2019 alleged actions. Accordingly, we need not address the immunity issue.\nAs to plaintiff\u2019s claim for injunctive relief, we hold that the trial court should have granted defendants\u2019 motion to dismiss plaintiff\u2019s First Amendment and section 1981 claims because, as we concluded above, plaintiff failed to state a claim. As to plaintiff\u2019s Fourth and Fourteenth Amendment claims, we hold that the trial court did not err in denying defendants\u2019 motion to dismiss.\nState Claims\nV.\nDefendants argue that the trial court erred in denying defendants\u2019 amended motion to dismiss plaintiff\u2019s 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).\nHere, 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 \u201centers into a valid contract, the State implicitly consents to be sued for damages on the contract in the event it breaches the contract.\u201d Smith v. State, 289 N.C. 303, 320, 222 S.E.2d 412, 424 (1976). However, neither of plaintiff\u2019s two state claims here are contract claims. One is a tort claim and the other is a state constitutional law claim.'Accordingly, plaintiff\u2019s argument is without merit. The State has not waived its immunity with respect to plaintiff\u2019s tort claim and may assert absolute immunity as to that claim.\nAs 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 \u201cin the absence of an adequate state remedy.\u201d Corum, 330 N.C. at 782, 413 S.E.2d at 289. Here, there is an adequate state remedy for plaintiff\u2019s 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\u2019s termination and the right of judicial review of the agency\u2019s decision by the superior court. Accordingly, the trial court erred in denying defendants\u2019 amended motion to dismiss plaintiff\u2019s state constitutional law claim.\nVI.\nDefendants also argue that the trial court erred in denying their amended motion to dismiss plaintiff\u2019s state claims because defendants in their individual capacities are immune from suit under the doctrine of qualified immunity.\nA Tort Claim\n\u201c[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\u2019s] act, or failure to act, was corrupt or malicious ... or that he acted outside of and beyond the scope of his duties.\u201d\nSmith 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 \u201c \u2018personally liable for his negligence in the performance of his duties proximately causing injury to another.\u2019 \u201d 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\u2019d in part, rev\u2019d 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). \u201cMalice\u201d is defined as \u201c[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.\u201d 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\u2019 actions constituted intentional infliction of emotional distress. Accordingly, the trial court did not err in denying defendants\u2019 motion to dismiss plaintiff\u2019s tort claim.\nR State Constitutional Law Claim\nAs to plaintiff\u2019s 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\u2019g 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\u2019s discussion in Corum, we hold that the Court\u2019s 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 \u201cState constitutional claims are not cognizable against State actors in their individual capacity\u201d). Accordingly, the trial court erred in denying defendants\u2019 amended motion to dismiss plaintiff\u2019s claims against defendants in their individual capacities for monetary and injunctive relief for alleged violations of the state constitution.\nVII.\nDefendants 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 \u201c \u2018deprives the appellant of a substantial right which would be jeopardized absent a review prior to a final determination on the merits.\u2019 \u201d 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\u2019l 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\u2019 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\u2019s order deprives them of a substantial right. \u201cIt is not the duty of this Court to construct arguments for or find support for [defendants\u2019] right to appeal from an interlocutory order.\u201d Id. at 380, 444 S.E.2d at 254. Accordingly, we decline to address these two assignments of error.\nVIII.\nIn defendants\u2019 ninth through twelfth assignments of error, defendants claim that the trial court erred in denying defendants\u2019 motion to dismiss because plaintiff\u2019s 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. \u00a7 1981. We have already concluded that plaintiff fails to state a claim pursuant to 42 U.S.C. \u00a7 1981 and pursuant to the First Amendment of the United States Constitution. As to defendants\u2019 contentions concerning plaintiff\u2019s 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\u2019s remaining constitutional law claims.\nIX.\nDefendants also argue that plaintiff\u2019s complaint fails to state a claim for intentional infliction of emotional distress and that the trial court erred in signing the order because \u201cit is contrary to law.\u201d Because the trial court\u2019s 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\u2019s emotional distress claim, we do not address these assignments of error.\nX.\nIn summary, the trial court did not err: (1) in denying defendants\u2019 amended motion to dismiss plaintiff\u2019s Fourth and Fourteenth Amendment claims for injunctive relief against defendants in their official and individual capacities, and (2) in denying defendants\u2019 amended motion to dismiss plaintiff\u2019s state tort claim as to all defendants in their individual capacities.\nThe trial court erred in failing to dismiss: (1) plaintiff\u2019s First Amendment and section 1981 claims for injunctive relief against defendants in their official and individual capacities, (2) plaintiff\u2019s federal claims for monetary damages against defendants in their official capacities and in their individual capacities, (3) plaintiff\u2019s state tort and constitutional claims against defendants in their official capacities, and (4) plaintiff\u2019s 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.\nAffirmed in part, reversed in part, and remanded.\nChief Judge ARNOLD and Judge WYNN concur.", "type": "majority", "author": "EAGLES, Judge." } ], "attorneys": [ "Attorney General Lacy H. Thornburg, by Special Deputy Attorney General John R. Come and Assistant Attorney General Victoria L. Voight, for the State.", "C. Gary Triggs, P.A., for plaintiff -appellee John Hawkins." ], "corrections": "", "head_matter": "JOHN HAWKINS, Plaintiff v. STATE OF NORTH CAROLINA; N.C. DEPARTMENT OF HUMAN RESOURCES; WESTERN CAROLINA CENTER; J. IVERSON RIDDLE, both individually and in his representative capacity as Director of Western Carolina Center; PHILLIP J. KIRK, JR., individually and in his representative capacity as Secretary of the North Carolina Department of Human Resources; EARLINE BOYD BROWN, individually and in her representative capacity, RHONDA BENGE, individually and in her representative capacity, SUZANNE WILLIAMS, individually and in her capacity, VICKI CASH, individually and in her capacity, and RALPH KEATON, individually and in his capacity, Defendants\nNo. 9225SC154\n(Filed 7 February 1995)\n1. Appeal and Error \u00a7 112 (NCI4th)\u2014 motion to dismiss \u2014 sovereign immunity \u2014 immediately appealable\nDefendants\u2019 appeal from the trial court\u2019s denial of defendants\u2019 motion to dismiss was properly before the Court of Appeals where defendants asserted the defenses of absolute and qualified immunity. The doctrine of sovereign immunity presents a personal jurisdiction question and the denial of a motion to dismiss on that basis is immediately appealable.\nAm Jur 2d, Appeal and Error \u00a7\u00a7 87, 105 et seq.\n2. Pleadings \u00a7 108 (NCI4th)\u2014 Rule 12(b)(6) motion to dismiss \u2014 test for motion\nThe trial court need only look to the face of the complaint when considering a motion to dismiss under N.C.G.S. \u00a7 1A-1, Rule 12(b)(6) to determine whether it reveals an insurmountable bar to plaintiff\u2019s recovery.\nAm Jur 2d, Pleading \u00a7\u00a7 226 et seq.\n3. Limitations, Repose, and Laches \u00a7 139 (NCI4th)\u2014 voluntary dismissal of complaint \u2014 savings provision of Rule 41(a)(1) \u2014 good faith dismissal\nThe trial court did not err in denying defendants\u2019 amended motion to dismiss plaintiff\u2019s complaint based on the statute of limitations where defendant contended that plaintiff took a voluntary dismissal of his first action in bad faith. There is no evidence of record that plaintiff\u2019s sole intent in filing the first complaint was to dismiss it in order to gain another year in which to file a sufficient complaint.\nAm Jur 2d, Limitation of Actions \u00a7\u00a7 301 et seq.\n4. Constitutional Law \u00a7 85 (NCI4th)\u2014 42 U.S.C. 1983 \u2014 state officials as persons \u2014 injunctive relief\nThe trial court erred by denying defendants\u2019 amended motion to dismiss plaintiffs federal claims under 42 U.S.C. 1983 because defendants in their official capacities are not \u201cpersons\u201d within the meaning of section 1983 for recovering money damages. Plaintiff cannot contend that defendants in their official capacities are liable for alleged constitutional violations by arguing that defendants\u2019 actions were pursuant to a \u201cgovernmental custom\u201d because the cases on which plaintiff relies involve municipalities, which do not enjoy the same protections from liability that states enjoy. However, defendants are \u201cpersons\u201d as to plaintiff\u2019s claim for injunctive relief and 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.\nAm Jur 2d, Civil Rights \u00a7\u00a7 264, 282.\nSupreme Court\u2019s views as to who is \u201cperson\u201d under civil rights statute (42 USCS \u00a7 1983) providing private right of action for violation of federal rights. 105 L. Ed. 2d 721.\n5. Constitutional Law \u00a7 115 (NCI4th)\u2014 42 U.S.C. 1983 \u2014 free speech \u2014 refusal to give urine sample\nThe trial court erred by denying defendants\u2019 motion to dismiss as to plaintiff\u2019s free speech claim under 42 U.S.C. 1983 arising from his discharge from the Western Carolina Center following his refusal to submit a urine sample as a part of an investigation into missing drugs where the only allegation in plaintiff\u2019s complaint of any speech is his assertion that, when asked to give a urine sample, he said that defendants\u2019 actions violated his constitutionally protected rights. The record indicates that defendants fired plaintiff because he refused to give the sample, not for his speech. Simply saying that giving a urine sample violates one\u2019s rights is not a matter of public concern and does not satisfy the requirement to show that his speech was protected. Because plaintiff\u2019s speech was not protected, defendants are insulated from liability by the doctrine of qualified immunity.\nAm Jur 2d, Civil Rights \u00a7\u00a7 286, 287.\nSupreme Court\u2019s construction of Civil Rights Act of 1871 (42 USCS \u00a7 1983) providing private right of action for violation of federal rights. 43 L. Ed. 2d 833.\n6. Constitutional Law \u00a7 98 (NCI4th)\u2014 discharge of state employee \u2014 42 U.S.C. 1983 claim \u2014 no violation of due process\nDefendants did not violate any clearly established due process rights in terminating plaintiff for refusing to supply a urine sample as part of an investigation into missing drugs and defendants are entitled to qualified immunity as to plaintiffs Fourteenth Amendment due process claim in an action under 42 U.S.C. 1983. Under the doctrine of qualified immunity, plaintiff bears the burden of establishing that the right violated was clearly established. The Administrative Law Judge found that plaintiff and defendants had stipulated that defendants fully complied with the procedural requirements of the state personnel manual relating to the discharge of a State employee and those procedures have been held to fully protect an employee\u2019s due process rights.\nAm Jur 2d, Civil Rights \u00a7 268.\nSupreme Court\u2019s construction of Civil Rights Act of 1871 (42 USCS \u00a7 1983) providing private right of action for violation of federal rights. 43 L. Ed. 2d 833.\n7. Constitutional Law \u00a7 85 (NCI4th)\u2014 urine sample\u2014 search \u2014 42 U.S.C. 1983 claim\nDefendants did not violate any clearly established right in 1986 when they required plaintiff to provide a urine sample as a part of an investigation into missing drugs at plaintiffs workplace. The United States Supreme Court did not declare that a urine test is a search under the Fourth Amendment until 1989; there was no clearly established law that restricted the taking of urine specimens when defendants asked plaintiff to provide a urine sample.\nAm Jur 2d, Civil Rights \u00a7 1.\nSupreme Court\u2019s construction of Civil Rights Act of 1871 (42 USCS \u00a7 1983) providing private right of action for violation of federal rights. 43 L. Ed. 2d 833.\n8. Constitutional Law \u00a7 85 (NCI4th)\u2014 discharge from employment in 1986 \u2014 42 U.S.C. 1981 \u2014 not applicable\nPlaintiff did not state a claim pursuant to 42 U.S.C. 1981 for discriminatory discharge from his employment in 1986 because section 1981 did not govern a discriminatory discharge action in 1986. Although the 1991 Civil Rights Act broadened the scope of section 1981, the Fourth Circuit has declined to apply the act retroactively.\nAm Jur 2d, Civil Rights \u00a7 248.\nSupreme Court\u2019s construction of Civil Rights Act of 1871 (42 USCS \u00a7 1983) providing private right of action for violation of federal rights. 43 L. Ed. 2d 833.\n9. State \u00a7 19 (NCI4th)\u2014 action against state officials \u2014 sovereign immunity \u2014 no waiver\nThe State did not waive its immunity with respect to plaintiffs tort claim arising from his discharge as a state employee for refusing a urine test in a drug investigation and may assert absolute immunity as to that claim. Because a suit against public officials and public employees in their official capacities is considered a suit against the State, sovereign immunity protects these individuals from suit. Although the State entered into a contract of employment with plaintiff and the State impliedly consents to be sued for damages on the contract in the event it breaches the contract, neither of plaintiff\u2019s state claims are contract claims.\nAm Jur 2d, Municipal, County, School, and State Tort Liability \u00a7\u00a7 70, 75 et seq.; States, Territories, and Dependencies \u00a7\u00a7 104-107, 119.\n10. Constitutional Law \u00a7 98 (NCI4th); Courts \u00a7 3 (NCI4th)\u2014 termination of State employee \u2014 state constitutional claim against officials \u2014 adequate state remedy\nThe trial court erred by denying defendants\u2019 amended motion to dismiss plaintiff\u2019s state constitutional due process claim arising from his dismissal as a state employee for refusing to submit a urine sample as a part of a drug investigation. Plaintiff cannot maintain this action against the State, its agencies, or employees in their official capacity because there exists an adequate state remedy in an administrative review of plaintiff\u2019s termination and judicial review in the superior court.\nAm Jur 2d, Civil Rights \u00a7 267; Courts \u00a7\u00a7 64 et seq.\nExhaustion of state administrative remedies as prereq-uisit to federal civil rights action based on 42 USCS \u00a7 1983. 47 ALR Fed. 15.\n11. Public Officers and Employees \u00a7\u00a7 35, 68 (NCI4th); Constitutional Law \u00a7 85 (NCI4th)\u2014 state officials and state employees \u2014 intentional tort claim \u2014 no individual immunity\nThe trial court did not err by denying defendants\u2019 motion to dismiss plaintiff\u2019s claim for intentional infliction of emotional distress arising from plaintiff\u2019s dismissal as a state employee for refusing to submit a urine sample as part of a drug investigation where defendants argued that defendants in their individual capacities are immune under the doctrine of qualified immunity. 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.\nAm Jur 2d, Civil Rights \u00a7 268; Public Oficers and Employees \u00a7\u00a7 358 et seq.\nSupreme Court\u2019s views as to application or applicability of doctrine of qualified immunity in action under 42 USCS \u00a7 1983, or in Bivins action, seeking damages for alleged civil rights violations. 116 L. Ed. 2d 965.\n12. Public Officers and Employees \u00a7 68 (NCI4th); Constitutional Law \u00a7 98 (NCI4th)\u2014 public officials \u2014 state constitutional due process claim \u2014 not recognized\nThe trial court did not err by denying defendants\u2019 amended motion to dismiss plaintiff\u2019s claims against defendants in their individual capacities for monetary and injunctive relief for alleged due process violations of the state constitution in firing plaintiff for refusing to submit a urine sample as part of a drug investigation. A plaintiff cannot maintain a claim against government employees in their individual capacities for alleged violations of state constitutional rights.\nAm Jur 2d, Civil Rights \u00a7\u00a7 264, 282; Public Officers and Employees \u00a7\u00a7 358 et seq.\nImmunity of public officials from personal liability in civil rights actions brought by public employees under 42 USCS \u00a7 1983. 63 ALR Fed. 744.\n13. Appeal and Error \u00a7 111 (NCI4th)\u2014 denial of motion to dismiss \u2014 issue preclusion and exclusive remedy\u2014 interlocutory\nDefendants\u2019 assignments of error relating to issue preclusion and exclusive remedy, other federal and state constitutional claims, and the statement of a claim for intentional infliction of emotional distress were interlocutory where they failed to show how the trial court\u2019s order denying their motion to dismiss deprives them of a substantial right.\nAm Jur 2d, Appeal and Error \u00a7\u00a7 105 et seq.\nAppeal by defendants from order entered 30 November 1991 by Judge Beverly T. Beal in Burke County Superior Court. Heard in the Court of Appeals 14 January 1993; reconsidered and heard without oral argument per order dated 6 January 1995.\nPlaintiff was an employee of the Western Carolina Center (hereinafter Center) in Morganton, North Carolina until 16 December 1986. The Center is a division of the North Carolina Department of Human Resources, which is a subdivision of the State of North Carolina. In December 1986, plaintiff was employed by the Center as a Developmental Technician. On 11 December 1986, Rhonda Benge (hereinafter Benge), a registered nurse, discovered that a valium tablet was missing from a medicine cabinet at the Center. A valium tablet had previously been stolen from the cabinet, so after Benge and two other employees could not locate the missing tablet, Benge called security. Plaintiff alleges that the Center\u2019s Security Chief, Ralph Keaton (hereinafter Keaton), questioned each of the Developmental Technicians. After the first tablet was stolen, all of the medicine in the cabinet had been dusted with a powder to detect unwarranted use. The nurses knew about the baited cabinet and Keaton considered them part of his \u201cinvestigative team.\u201d When Keaton was called on 11 December, he requested that the Technicians, including plaintiff, wash their hands to determine whether purple dye would show up on their hands. No dye appeared on plaintiff\u2019s hands. Benge then asked each technician to give a urine sample. Keaton never asked the nurses to give urine samples. Plaintiff refused, contending that it violated his Fourth Amendment right against unlawful searches and seizures. After plaintiff refused to submit a urine specimen, the Personnel Manager for the Center, Suzanne Williams (hereinafter Williams), arrived and said that if plaintiff did not give a urine sample, he could be dismissed for insubordination. Plaintiff said he would provide a sample if everyone else with access to the medicine cabinet also had to give urine samples. Williams responded that other employees would not be required to provide urine samples; plaintiff again refused. Plaintiff was subsequently dismissed from his employment with the Center on 16 December 1986.\nPursuant to Chapter 126 of the General Statutes, plaintiff appealed his dismissal to the Office of Administrative Hearings. Administrative Law Judge (hereinafter AU) Genie Rogers found that it was reasonable that Keaton did not ask the nurses to give urine samples because they were part of the investigative team. The AU also found that plaintiff\u2019s personnel file contained several written disciplinary warnings. The AU then concluded that although the taking of a urine sample is a search within the meaning of the Fourth Amendment, the attempt to take a urine sample here was not an unreasonable search because Keaton had a reasonable suspicion that someone had recently stolen the tablet and the scope of the testing was reasonably related to the circumstances of the reasonable suspicion. Accordingly, the AU recommended on 13 July 1988 that plaintiff\u2019s dismissal be upheld. The State Personnel Commission upheld plaintiff\u2019s dismissal on 21 February 1989.\nPlaintiff filed a complaint on 15 December, 1989 in Burke County Superior Court against the State; the North Carolina Department of Human Resources; the Center; J. Iverson Riddle, individually and in his representative capacity as Director of Western Carolina Center; Phillip J. Kirk, Jr., individually and in his representative capacity as Secretary of the North Carolina Department of Human Resources; Earline Boyd Brown; Benge; Suzanne Williams; Vicki Cash and Keaton. Pursuant to \u201c28 U.S.C. Section 1983,\u201d plaintiff alleged violations of his First, Fourth, and Fourteenth Amendment rights and the applicable due process provisions of the North Carolina Constitution. Plaintiff also alleged violations of his rights under \u201c28 U.S.C. Code Section 1981\u201d and brought a claim for intentional infliction of emotional distress. Plaintiff asked for monetary and injunctive relief.\nTwo and one half months later on 28 February 1990, plaintiff took a voluntary dismissal without prejudice pursuant to G.S. 1A-1, Rule 41(a). Between the filing of the complaint in December and the voluntary dismissal in February, plaintiff never served any of the defendants with a copy of the complaint or summons. Plaintiff filed a second complaint on 27 February 1991. Defendants filed a motion to dismiss on 9 May 1991 claiming that the court lacked subject matter jurisdiction of the claims and that the complaint failed to state claims upon which relief could be granted. Defendants filed an amended motion to dismiss on 29 May 1991 adding inter alia that the complaint was barred by the statute of limitations and that the defendants were protected from suit by absolute and qualified immunity. On 30 November 1991, Judge Beverly T. Beal denied defendants\u2019 motions to dismiss. Defendants appealed and moved the trial court to stay the action pending the appeal. The trial court denied defendants\u2019 motion to stay on 3 January 1992. On 13 January 1992, defendants filed a motion for temporary stay and petition for writ of supersedeas with this Court. We granted defendants\u2019 motion for temporary stay on 15 January 1992 and defendants\u2019 petition for writ of supersedeas on 4 February 1992.\nAttorney General Lacy H. Thornburg, by Special Deputy Attorney General John R. Come and Assistant Attorney General Victoria L. Voight, for the State.\nC. Gary Triggs, P.A., for plaintiff -appellee John Hawkins." }, "file_name": "0615-01", "first_page_order": 647, "last_page_order": 664 }