{ "id": 11093857, "name": "THE ESTATE OF KENNETH B. FENNELL, by and through its Administrator, Annie B. Fennell, and ANNIE B. FENNELL, Plaintiffs v. RICHARD L. STEPHENSON, in his personal and official capacity; THE NORTH CAROLINA STATE HIGHWAY PATROL; and OTHER UNKNOWN NORTH CAROLINA STATE HIGHWAY PATROL EMPLOYEES in their personal and official capacities, Defendants", "name_abbreviation": "Estate of Fennell ex rel. Fennell v. Stephenson", "decision_date": "2000-04-18", "docket_number": "No. COA99-538", "first_page": "430", "last_page": "440", "citations": [ { "type": "official", "cite": "137 N.C. App. 430" } ], "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": "28 U.S.C. \u00a7 1367", "category": "laws:leg_statute", "reporter": "U.S.C.", "pin_cites": [ { "page": "(d)" } ], "opinion_index": -1 }, { "cite": "490 U.S. 386", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 605535 ], "weight": 2, "pin_cites": [ { "page": "396" }, { "page": "455" } ], "opinion_index": 0, "case_paths": [ "/us/490/0386-01" ] }, { "cite": "161 F.3d 782", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 1366478 ], "weight": 2, "year": 1998, "pin_cites": [ { "page": "787", "parenthetical": "quoting Graham v. Connor, 490 U.S. 386, 396, 104 L. Ed. 2d 443, 455 (1589)" }, { "page": "789", "parenthetical": "plaintiff cannot assert wrongful death claim against officer when trial court found defendant was entitled to qualified immunity and, therefore, acted reasonable under the circumstances as a matter of law" } ], "opinion_index": 0, "case_paths": [ "/f3d/161/0782-01" ] }, { "cite": "364 S.E.2d 924", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "321 N.C. 474", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2571435, 2572686, 2566866, 2568754, 2567063 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc/321/0474-05", "/nc/321/0474-03", "/nc/321/0474-02", "/nc/321/0474-04", "/nc/321/0474-01" ] }, { "cite": "77 S.E.2d 701", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1953, "pin_cites": [ { "page": "706" } ], "opinion_index": 0 }, { "cite": "238 N.C. 162", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8601861 ], "year": 1953, "pin_cites": [ { "page": "168" } ], "opinion_index": 0, "case_paths": [ "/nc/238/0162-01" ] }, { "cite": "361 S.E.2d 909", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "915", "parenthetical": "quoting Wagoner v. R.R., 238 N.C. 162, 168, 77 S.E.2d 701, 706 (1953)" } ], "opinion_index": 0 }, { "cite": "87 N.C. App. 512", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358661 ], "year": 1987, "pin_cites": [ { "page": "520", "parenthetical": "quoting Wagoner v. R.R., 238 N.C. 162, 168, 77 S.E.2d 701, 706 (1953)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/87/0512-01" ] }, { "cite": "334 S.E.2d 759", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "763", "parenthetical": "describing the tort of willful and wanton negligence" } ], "opinion_index": 0 }, { "cite": "314 N.C. 488", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4688604 ], "year": 1985, "pin_cites": [ { "page": "495", "parenthetical": "describing the tort of willful and wanton negligence" } ], "opinion_index": 0, "case_paths": [ "/nc/314/0488-01" ] }, { "cite": "349 S.E.2d 552", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1986, "pin_cites": [ { "page": "557" }, { "page": "557" } ], "opinion_index": 0 }, { "cite": "318 N.C. 421", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4736107 ], "year": 1986, "pin_cites": [ { "page": "428" } ], "opinion_index": 0, "case_paths": [ "/nc/318/0421-01" ] }, { "cite": "442 S.E.2d 507", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "335 N.C. 766", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2532771, 2530792, 2526698, 2532434, 2529619 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/nc/335/0766-02", "/nc/335/0766-05", "/nc/335/0766-03", "/nc/335/0766-01", "/nc/335/0766-04" ] }, { "cite": "435 S.E.2d 773", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "779" } ], "opinion_index": 0 }, { "cite": "112 N.C. App. 307", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521379 ], "year": 1993, "pin_cites": [ { "page": "317-18" } ], "opinion_index": 0, "case_paths": [ "/nc-app/112/0307-01" ] }, { "cite": "505 S.E.2d 876", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "opinion_index": 0 }, { "cite": "348 N.C. 74", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1659937, 1659851, 1659922, 1659763, 1659709 ], "year": 1998, "opinion_index": 0, "case_paths": [ "/nc/348/0074-05", "/nc/348/0074-04", "/nc/348/0074-03", "/nc/348/0074-02", "/nc/348/0074-01" ] }, { "cite": "495 S.E.2d 725", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "pin_cites": [ { "page": "730" }, { "page": "731" }, { "page": "731" }, { "page": "731" } ], "opinion_index": 0 }, { "cite": "128 N.C. App. 439", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11655325 ], "weight": 2, "pin_cites": [ { "page": "446-47" }, { "page": "448" } ], "opinion_index": 0, "case_paths": [ "/nc-app/128/0439-01" ] }, { "cite": "121 L. Ed. 2d 431", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1992, "opinion_index": 0 }, { "cite": "506 U.S. 985", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12035616, 12035130, 12035173, 12035238, 12035081, 12035561, 12035342, 12034992, 12035285, 12035509, 12035449, 12035034, 12035391 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/us/506/0985-13", "/us/506/0985-04", "/us/506/0985-05", "/us/506/0985-06", "/us/506/0985-03", "/us/506/0985-12", "/us/506/0985-08", "/us/506/0985-01", "/us/506/0985-07", "/us/506/0985-11", "/us/506/0985-10", "/us/506/0985-02", "/us/506/0985-09" ] }, { "cite": "413 S.E.2d 276", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1992, "pin_cites": [ { "page": "293" }, { "page": "290-92" }, { "page": "292" } ], "opinion_index": 0 }, { "cite": "330 N.C. 761", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2511641 ], "weight": 3, "year": 1992, "pin_cites": [ { "page": "788" }, { "page": "783-87" }, { "page": "786" } ], "opinion_index": 0, "case_paths": [ "/nc/330/0761-01" ] }, { "cite": "312 U.S. 1", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 358982 ], "weight": 2, "year": 1941, "pin_cites": [ { "page": "14" }, { "page": "485" } ], "opinion_index": 0, "case_paths": [ "/us/312/0001-01" ] }, { "cite": "380 U.S. 460", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1525277 ], "weight": 4, "year": 1965, "pin_cites": [ { "page": "472" }, { "page": "17" }, { "page": "473-74" }, { "page": "18" } ], "opinion_index": 0, "case_paths": [ "/us/380/0460-01" ] }, { "cite": "446 U.S. 740", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6187767 ], "weight": 2, "year": 1980, "pin_cites": [ { "page": "749" }, { "page": "667" } ], "opinion_index": 0, "case_paths": [ "/us/446/0740-01" ] }, { "cite": "487 U.S. 22", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1774917 ], "weight": 2, "year": 1988, "pin_cites": [ { "page": "26-27", "parenthetical": "quoting Walker v. Armco Steel Corp., 446 U.S. 740, 749, 64 L. Ed. 2d 659, 667 (1980)" }, { "page": "29", "parenthetical": "quoting Walker v. Armco Steel Corp., 446 U.S. 740, 749, 64 L. Ed. 2d 659, 667 (1980)" } ], "opinion_index": 0, "case_paths": [ "/us/487/0022-01" ] }, { "cite": "511 S.E.2d 305", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "308" } ], "opinion_index": 0 }, { "cite": "132 N.C. App. 358", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11237983 ], "year": 1999, "pin_cites": [ { "page": "362" } ], "opinion_index": 0, "case_paths": [ "/nc-app/132/0358-01" ] }, { "cite": "155 F. 3d 558", "category": "reporters:federal", "reporter": "F.3d", "weight": 2, "year": 1998, "pin_cites": [ { "parenthetical": "per curiam" }, { "page": "558" } ], "opinion_index": 0 }, { "cite": "28 U.S.C. \u00a7 1367", "category": "laws:leg_statute", "reporter": "U.S.C.", "weight": 6, "pin_cites": [ { "page": "(d)" }, { "page": "(d)" }, { "page": "(a)" }, { "page": "(d)" }, { "page": "(d)" }, { "page": "(d)" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 807, "char_count": 25946, "ocr_confidence": 0.773, "pagerank": { "raw": 3.060667644084085e-07, "percentile": 0.8566032228133764 }, "sha256": "677c3d83177dc46bd03f5c6dd89c5975e547c6cc91ee3436e961104294b2c3ea", "simhash": "1:35a85677a3fda4ee", "word_count": 4022 }, "last_updated": "2023-07-14T18:42:18.277293+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges WALKER and TIMMONS-GOODSON concur." ], "parties": [ "THE ESTATE OF KENNETH B. FENNELL, by and through its Administrator, Annie B. Fennell, and ANNIE B. FENNELL, Plaintiffs v. RICHARD L. STEPHENSON, in his personal and official capacity; THE NORTH CAROLINA STATE HIGHWAY PATROL; and OTHER UNKNOWN NORTH CAROLINA STATE HIGHWAY PATROL EMPLOYEES in their personal and official capacities, Defendants" ], "opinions": [ { "text": "GREENE, Judge.\nThe Estate of Kenneth B. Fennell, by and through its administrator, Annie B. Fennell, and Annie B. Fennell (collectively, Plaintiffs) appeal an order filed 15 February 1999 granting a motion by Richard L. Stephenson, in his personal and official capacity (Defendant), to dismiss Plaintiffs\u2019 claims against Defendant, and an order filed 15 February 1999 granting a motion by the North Carolina State Highway Patrol (Highway Patrol) to dismiss Plaintiffs\u2019 claims against the Highway Patrol.\nThe evidence shows that on 30 August 1993 at 7:00 p.m., Kenneth B. Fennell (Fennell), a twenty-three-year-old black male, was driving on Interstate 85 in Guilford County, North Carolina, when he was pulled over by Defendant, a Highway Patrol officer. Defendant was a member of the Highway Patrol\u2019s \u201cI-Troop,\u201d which engaged in \u201cdrug interdiction\u201d on the Interstates. At 7:05 p.m., Defendant issued Fennell a citation for driving without a license. Sometime after the citation was issued, Fennell was \u201cshot four or five times by [Defendant] at close range with a .357 Magnum.\u201d On 12 May 1994, the Guilford County District Attorney \u201cruled the homicide of . . . Fennell was justified.\u201d\nOn 25 August 1995, Plaintiffs filed a complaint in the United States District Court against Defendant and unknown state officials. The complaint alleged claims for violation of Fennell\u2019s rights under the Fourth and Fourteenth Amendments of the United States Constitution. Plaintiffs also alleged pendent state claims for wrongful death pursuant to Chapter 28 of the North Carolina General Statutes, common law conspiracy, and deprivation of equal protection under the North Carolina Constitution.\nOn 29 July 1997, the United States District Court granted summary judgment in favor of Defendant on Plaintiffs\u2019 federal constitutional claims, and declined to exercise supplemental jurisdiction over Plaintiffs\u2019 pendent state claims. The court found, in pertinent part, Defendant was entitled to qualified immunity with regard to Plaintiffs\u2019 Fourth Amendment claim that Defendant used excessive force, stating \u201ca reasonable officer in the same situation as [Defendant] could have found probable cause to believe that Fennell posed a deadly threat, and, therefore, that [Defendant] would have been authorized to use deadly force to protect himself.\u201d Additionally, the court dismissed with prejudice Plaintiffs\u2019 claims against \u201cunidentified state officials.\u201d\nPlaintiffs appealed the federal district court\u2019s order, and on 21 July 1998 the United States Court of Appeals for the Fourth Circuit affirmed the order. See Fennell v. Stephenson, 155 F. 3d 558 (4th Cir. 1998) (per curiam) (unpublished).\nOn 24 July 1998, Plaintiffs filed suit against Defendant, the Highway Patrol, and unknown Highway Patrol employees in the Superior Court of Guilford County. On 24 September 1998, Plaintiffs filed an amended complaint pursuant to Rule 15 of the North Carolina Rules of Civil Procedure. Plaintiffs\u2019 amended complaint alleged facts consistent with the facts alleged in their federal complaint. The complaint included the following claims for relief against Defendant, Highway Patrol, and unknown employees of the Highway Patrol: (I) \u201cNORTH CAROLINA CONSTITUTIONAL DEPRIVATIONS IN THE STOP, TWO SEARCHES, AND TWO SEIZURES BY DEFENDANT,\u201d including, in pertinent part, allegations Defendant unconstitutionally \u201csearched . . . Fennell\u2019s vehicle,\u201d \u201cdetained or seized . . . Fennell,\u201d used \u201cexcessive . . . force\u201d against Fennell, and killed Fennell \u201cwith either [intent,] malice, recklessly, or negligently\u201d; (II) \u201cCONSPIRACY TO DEPRIVE AND COVER-UP DEPRIVATION OF CONSTITUTIONAL RIGHTS AND UNLAWFUL ACTS AGAINST A CITIZEN BECAUSE OF HIS RACE\u201d and \u201cCONSPIRACY TO DEPRIVE THE VICTIM OF A CRIME AND HIS FAMILY HIS RIGHTS UNDER THE NORTH CAROLINA CONSTITUTION,\u201d based on the conduct of \u201c[u]nknown employees of the... Highway Patrol\u201d; and (III) \u201cWRONGFUL DEATH\u201d on the ground Defendant \u201ccommitted the tort[] of recklessly causing the wrongful death of. . . Fennell.\u201d The complaint also alleged an additional claim against the Highway Patrol for violation of Fennell\u2019s constitutional rights on the ground the Highway Patrol \u201cpromoted or knew about and did not discipline the I-Troop\u2019s pattern and practice of racially-influenced traffic stops of Black motorists.\u201d\nIn an order filed 15 February 1999, the trial court granted Defendant\u2019s motion to dismiss Plaintiffs\u2019 claims against him. The trial court found all of Plaintiffs\u2019 claims were barred by the statute of limitations. In the alternative, the trial court also found Plaintiffs\u2019 first and second claims failed to state a claim upon which relief may be granted, and Plaintiffs\u2019 third claim was barred by the doctrine of collateral estoppel. In a second order filed on 15 February 1999, the trial court dismissed Plaintiffs\u2019 claim against the Highway Patrol on the ground the claim was barred by the doctrine of sovereign immunity.\nThe issues are whether: (I) the state statute of limitations for Plaintiffs\u2019 state claims was tolled, pursuant to 28 U.S.C. \u00a7 1367(d), until the federal court of appeals filed a decision on Plaintiffs\u2019 appeal of the federal district court\u2019s 29 July 1997 order; (II) Congress had the authority, pursuant to the Necessary and Proper Clause of the United States Constitution, to enact 28 U.S.C. \u00a7 1367(d); (III) North Carolina recognizes a state constitutional cause of action for monetary damages against a party in his individual capacity, and whether adequate state remedies exist for Plaintiffs\u2019 state constitutional claims; (IV) the doctrine of collateral estoppel bars a plaintiff\u2019s wrongful death action against an officer when a court has determined the officer is entitled to qualified immunity for the purpose of constitutional claims based on the plaintiff\u2019s death; and (V) the State may assert the doctrine of sovereign immunity as a defense to a constitutional claim brought against the State.\nI\nPlaintiffs contend the statute of limitations for their state claims against Defendant was tolled pending their appeal to the federal court of appeals and, therefore, their claims were timely filed in state court. We agree.\nThe United States Code provides that when a state claim is brought in federal district court pursuant to 28 U.S.C. \u00a7 1367(a), the state period of limitations for the claim \u201cshall be tolled while the claim is pending and for a period of 30 days after it is dismissed unless State law provides for a longer tolling period.\u201d 28 U.S.C. \u00a7 1367(d) (1994). Under this statute, the state period of limitations for a plaintiff\u2019s pendent state claims is tolled for a period of thirty days after the federal district court has dismissed the plaintiffs claims. 28 U.S.C. \u00a7 1367(d). If, however, a plaintiff appeals the federal district court\u2019s dismissal of his claims, the plaintiff\u2019s pendent state claims are tolled for a period of thirty days following the date of the decision of the federal court of appeals. See Huang v. Ziko, 132 N.C. App. 358, 362, 511 S.E.2d 305, 308 (1999).\nIn this case, the federal district court filed an order on 29 July 1997 granting summary judgment in favor of Defendant on Plaintiffs\u2019 federal claims, and dismissing Plaintiffs\u2019 pendent state claims. Plaintiffs appealed the federal district court\u2019s order, and on 21 July 1998, the federal court of appeals affirmed the order of the federal district court. Fennell, 155 F.3d at 558. On 24 July 1998, Plaintiffs filed suit on their pendent state claims in the Superior Court of Guilford County. Because the period of limitations for Plaintiffs\u2019 claims was tolled for thirty days subsequent to the 21 July 1998 decision, Plaintiffs\u2019 claims, which were filed three days after the federal court of appeals decision, were timely filed.\nII\nDefendant argues 28 U.S.C. \u00a7 1367(d) is unconstitutional because it \u201cimpermissibly interferes with state sovereignty in derogation of the Tenth Amendment.\u201d We disagree.\nWhen a federal statute conflicts with a state statute, the federal statute governs the issue provided the federal statute is \u201c \u2018sufficiently broad to control the issue\u2019 \u201d and \u201crepresents a valid exercise of Congress\u2019 authority under the [United States] Constitution.\u201d Stewart Organization, Inc. v. Ricoh Corp., 487 U.S. 22, 26-27, 101 L. Ed. 2d 22, 29 (1988) (quoting Walker v. Armco Steel Corp., 446 U.S. 740, 749, 64 L. Ed. 2d 659, 667 (1980)). Because section 1367(d) is sufficiently broad to control the issue in this case, we must determine whether Congress had authority under the United States Constitution to enact the statute.\nCongress has the power, pursuant to the Necessary and Proper Clause of the United States Constitution, to enact statutes creating procedural rules which govern practice and pleading in federal courts, or to enact statutes which create rules regulating matters that \u201cfall[] within the uncertain area between substance and procedure, [and] are rationally capable of classification as either.\u201d Hanna v. Plumer, 380 U.S. 460, 472, 14 L. Ed. 2d 8, 17 (1965). When Congress enacts a statute creating a rule of practice in the federal courts and that statute conflicts with a state provision, the federal provision governs. Id. at 473-74, 14 L. Ed. 2d at 18. A statute is procedural in nature if it regulates \u201cthe judicial process for enforcing rights and duties recognized by substantive law.\u201d Sibbach v. Wilson & Co., 312 U.S. 1, 14, 85 L. Ed. 479, 485 (1941).\nSection 1367(d) does not extend the applicable state limitations law, as a claim must have been timely commenced in federal court pursuant to the state statute of limitations in order for section 1367(d) to apply to the claim. The statute, rather, has the effect of tolling a state statute of limitations for a state claim while that claim is pending in federal court. The tolling of a statute of limitations is a regulation of \u201cthe judicial process,\u201d and, therefore, is procedural. Accordingly, Congress had the authority, pursuant to the Necessary and Proper Clause of the United States Constitution, to enact section 1367(d).\nIII\nPlaintiffs argue their complaint alleged constitutional claims against Defendant, in his individual and official capacity, upon which relief could be granted, and these claims, therefore, were improperly dismissed pursuant to Rule 12(b)(6) of the North Carolina Rules of Civil Procedure.\nRule 12(b)(6) provides a trial court may dismiss a plaintiffs claim for \u201c[fjailure to state a claim upon which relief can be granted.\u201d N.C.G.S. \u00a7 1A-1, Rule 12(b)(6) (1999).\nClaims Against Defendant in His Individual Capacity\nNorth Carolina does not recognize a cause of action for monetary damages against a person, sued in his individual capacity, who allegedly violated \u00e1 plaintiff\u2019s state constitutional rights. Corum v. University of North Carolina, 330 N.C. 761, 788, 413 S.E.2d 276, 293, cert. denied, 506 U.S. 985, 121 L. Ed. 2d 431 (1992).\nIn this case, Plaintiffs\u2019 alleged state constitutional claims against Defendant in his individual capacity, and the trial court, therefore, properly dismissed these claims pursuant to Rule 12(b)(6).\nClaims Against Defendant in His Official Capacity\n\u201c[A]n individual whose state constitutional rights have been abridged has a direct action for monetary damages against a state official in [his] official . . . capacity[] if there is no adequate remedy provided by state law.\u201d Rousselo v. Starling, 128 N.C. App. 439, 446-47, 495 S.E.2d 725, 730 (citing Corum, 330 N.C. at 783-87, 413 S.E.2d at 290-92), appeal dismissed and disc. review denied, 348 N.C. 74, 505 S.E.2d 876 (1998). An adequate state remedy exists if, assuming the plaintiffs claim is successful, the remedy would compensate the plaintiff for the same injury alleged in the direct constitutional claim. Id. at 447, 495 S.E.2d at 731.\nIn this case, Plaintiffs alleged a state constitutional claim against Defendant on the ground Defendant unconstitutionally \u201csearched ... Fennell\u2019s vehicle.\u201d\n\u201c[T]he common law action for trespass to chattel provides a[n] [adequate] remedy for an unlawful search,\u201d id. at 448, 495 S.E.2d at 731, and the trial court, therefore, properly dismissed Plaintiffs\u2019 constitutional claim against Defendant for unlawful search of Fennell\u2019s vehicle pursuant to Rule 12(b)(6).\nPlaintiffs also alleged a constitutional claim against Defendant on the ground Defendant unconstitutionally \u201cdetained or seized . . . Fennell.\u201d\nThe common law claim of false imprisonment provides an adequate remedy for unlawful restraint. Alt v. Parker, 112 N.C. App. 307, 317-18, 435 S.E.2d 773, 779 (1993), cert. denied, 335 N.C. 766, 442 S.E.2d 507 (1994). A cause of action for false imprisonment, however, does not survive the death of a decedent. N.C.G.S. \u00a7 28A-18-1(b)(2) (1999). Because the test for whether an adequate state remedy exists is \u201cwhether there is a remedy available to [the] plaintiff for the violation,\u201d Rousselo, 128 N.C. App. at 448, 495 S.E.2d at 731, Plaintiffs did not have an adequate state remedy. Plaintiffs\u2019 claim alleging Defendant unconstitutionally \u201cdetained or seized . . . Fennell\u201d was therefore improperly dismissed pursuant to Rule 12(b)(6).\nFinally, Plaintiffs alleged a constitutional claim against Defendant on the ground Defendant used \u201cexcessive . . . force\u201d against Fennell and killed Fennell \u201cwith either [intent,] malice, recklessly, or negligently.\u201d\nNorth Carolina General Statute section 28A-18-2 allows the personal representative of a decedent to bring a cause of action for wrongful death. N.C.G.S. \u00a7 28A-18-2 (1999). An action for wrongful death may be brought when a person\u2019s death \u201cis caused by a wrongful act, neglect or default of another\u201d provided the injured person, had he lived, would have been entitled to bring an action for damages. Id. A wrongful act includes the \u201cdeath of the decedent through malice or willful or wanton conduct,\u201d and punitive damages may be available when such conduct is shown. N.C.G.S. \u00a7 28A-18-2(b)(5).\nIn this case, Plaintiffs\u2019 constitutional claim included allegations Defendant killed Fennell \u201cwith either [intent,] malice, recklessly, or negligently.\u201d Because a wrongful death claim would compensate Plaintiffs for these same injuries, the trial court properly dismissed this constitutional claim pursuant to Rule 12(b)(6).\nIV\nDefendant contends that because the federal district court found Defendant was entitled to qualified immunity regarding Plaintiffs\u2019 federal constitutional claims, Plaintiffs are precluded based on the doctrine of collateral estoppel from bringing a wrongful death action against Defendant. We agree.\nThe doctrine of collateral estoppel provides \u201ca final judgment on the merits prevents relitigation of issues actually litigated and necessary to the outcome of the prior action in a later suit involving a different cause of action between the parties or their privies.\u201d Thomas M. McInnis & Assoc., Inc. v. Hall, 318 N.C. 421, 428, 349 S.E.2d 552, 557 (1986). A party asserting collateral estoppel must show: (1) \u201cthe earlier suit resulted in a final judgment on the merits\u201d; (2) \u201cthe issue in question was identical to an issue actually litigated and necessary to the judgment\u201d; and (3) the party asserting collateral estoppel and the party against whom it is asserted \u201cwere either parties to the earlier suit or were in privity with [the] parties.\u201d Id. at 429, 349 S.E.2d at 557. Because the parties do not dispute the federal district court\u2019s judgment was a final judgment on the merits and the parties in this action were parties to the federal suit, the issue before this Court is whether Plaintiffs\u2019 wrongful death claim contains an issue identical to an issue litigated in the federal district court and necessary to that court\u2019s judgment.\nIn this case, Plaintiffs alleged a wrongful death claim on the ground Defendant \u201ccommitted the tort[] of recklessly causing the wrongful death of. . . Fennell.\u201d An action for wrongful death must be based on a claim that the decedent would have been entitled to bring against the defendant, had the decedent lived. N.C.G.S. \u00a7 28A-18-2(a). Because Plaintiffs allege Defendant\u2019s conduct was reckless, Fennell would have been entitled, had he lived, to bring a cause of action for tortious infliction of injury based on willful and wanton negligence. See Akzona, Inc. v. Southern Railway Co., 314 N.C. 488, 495, 334 S.E.2d 759, 763 (1985) (describing the tort of willful and wanton negligence). Willful and wanton negligence requires a showing the defendant \u201c \u2018knew the probable consequences [of his actions], but was recklessly, wantonly, or intentionally indifferent to the results.\u2019 \u201d Robinson v. Seaboard System Railroad, 87 N.C. App. 512, 520, 361 S.E.2d 909, 915 (1987) (quoting Wagoner v. R.R., 238 N.C. 162, 168, 77 S.E.2d 701, 706 (1953)), disc. review denied, 321 N.C. 474, 364 S.E.2d 924 (1988).\nIn this case, the federal district court determined Defendant was entitled to qualified immunity. Whether a police officer is entitled to qualified immunity is judged by a standard of objective reasonableness, and the trial court must determine \u201cwhat a \u2018reasonable officer on the scene\u2019 would have done.\u201d Sigman v. Town of Chapel Hill, 161 F.3d 782, 787 (4th Cir. 1998) (quoting Graham v. Connor, 490 U.S. 386, 396, 104 L. Ed. 2d 443, 455 (1589)). The federal district court found Defendant was entitled to qualified immunity because \u201ca reasonable officer in the same situation as [Defendant] could have found probable cause to believe that Fennell posed a deadly threat, and, therefore, that [Defendant] would have been authorized to use deadly force to protect himself.\u201d The federal district court\u2019s decision, therefore, raises an issue identical to the issue raised in Plaintiffs\u2019 wrongful death action: what was the standard of Defendant\u2019s conduct under the circumstances. The federal district court determined that issue in Defendant\u2019s favor and, because the determination was necessary to the federal district court\u2019s judgment, we are bound by that finding under the doctrine of collateral estoppel. Plaintiffs, therefore, were collaterally estopped from bringing a wrongful death action against Defendant based on Defendant\u2019s alleged reckless conduct. See Sigman, 161 F.3d at 789 (plaintiff cannot assert wrongful death claim against officer when trial court found defendant was entitled to qualified immunity and, therefore, acted reasonable under the circumstances as a matter of law). Accordingly, the trial court properly dismissed Plaintiffs\u2019 wrongful death claim.\nV\nPlaintiffs argue their constitutional claim against the Highway Patrol was not barred by the doctrine of sovereign immunity. We agree.\nIn Corum, the North Carolina Supreme Court held the doctrine of sovereign immunity does not bar a direct claim against the State when the claim is based on a violation of the Declaration of Rights of the North Carolina Constitution. Corum, 330 N.C. at 786, 413 S.E.2d at 292. The Corum court stated \u201cwhen there is a clash between . . . constitutional rights and sovereign immunity, the constitutional rights must prevail.\u201d Id.\nIn this case, Plaintiffs alleged the Highway Patrol violated Fennell\u2019s constitutional rights by promoting or knowing about \u201cthe I-Troop\u2019s pattern and practice of racially-influenced traffic stops of Black motorists.\u201d Because this claim alleged a violation of Fennell\u2019s right to equal protection under the North Carolina Constitution, the Highway Patrol was not entitled to assert the doctrine of sovereign immunity as a defense to this claim. Accordingly, the trial court\u2019s dismissal of Plaintiffs\u2019 claim against the Highway Patrol is reversed.\nAffirmed in part and reversed in part.\nJudges WALKER and TIMMONS-GOODSON concur.\n. Although the record in this case does not contain the 24 July 1998 complaint, the pleadings contained in the record state Plaintiffs\u2019 original complaint was filed on 24 July 1998.\n. We note Defendant concedes in his brief to this Court that Plaintiffs\u2019 pendent state claims were originally filed in federal court within the state period of limitations for those claims.\n. Section 1367(d) directly addresses the issue of whether the state statute of limitations is tolled, and Defendant does not contend otherwise in his brief to this Court.\n. Plaintiffs argue in their brief to this Court that the trial court erred in dismissing Plaintiffs\u2019 claim against Defendant for his \u201cPARTICIPATION IN AN UNCONSTITUTIONAL CONSPIRACY AGAINST . . . FENNELL.\u201d Plaintiffs\u2019 allegations of conspiracy, however, do not allege Defendant participated in a conspiracy; rather, Plaintiffs allege \u201c[u]nknown employees of the ... Highway Patrol\u201d engaged in a conspiracy to cover up Defendant\u2019s actions. Because Plaintiffs assign error solely to the trial court\u2019s dismissal of claims against Defendant and the Highway Patrol, we do not address whether Plaintiffs\u2019 claims of conspiracy were properly dismissed. N.C.R. App. P. (10)(a).", "type": "majority", "author": "GREENE, Judge." } ], "attorneys": [ "McSurely & Osment, by Alan McSurely and Ashley Osment, for plaintiff-appellants.", "Attorney General Michael F. Easley, by Special Deputy Attorney General Isaac T. Avery, III and Assistant Attorney General Reuben F Young, for defendant-appellees." ], "corrections": "", "head_matter": "THE ESTATE OF KENNETH B. FENNELL, by and through its Administrator, Annie B. Fennell, and ANNIE B. FENNELL, Plaintiffs v. RICHARD L. STEPHENSON, in his personal and official capacity; THE NORTH CAROLINA STATE HIGHWAY PATROL; and OTHER UNKNOWN NORTH CAROLINA STATE HIGHWAY PATROL EMPLOYEES in their personal and official capacities, Defendants\nNo. COA99-538\n(Filed 18 April 2000)\n1. Statute of Limitations\u2014 state claims \u2014 federal dismissal and appeal \u2014 tolling of state statute\nPlaintiffs\u2019 claims (arising from the shooting of the deceased by a Highway Patrol officer) were timely filed where they were first filed in federal court within the state period of limitations, the federal district court granted summary judgment for defendant on the federal claims and dismissed the state claims, plaintiffs appealed the federal district court order, the federal court of appeals affirmed on 21 July 1998, and plaintiffs filed their state claims in superior court on 24 July 1998. The state period of limitations is tolled for thirty days following the date of the federal appellate decision.\n2. Constitutional Law\u2014 Tenth Amendment \u2014 Necessary and Proper Clause \u2014 federal statute tolling state limitations statute\nThe federal statute which tolls state statues of limitation while actions are pending in federal court, 28 U.S.C. \u00a7 1367(d), is not an unconstitutional interference with state sovereignty in derogation of the Tenth Amendment because it has the effect of tolling a state statute of limitations while a state claim is pending in federal court rather than extending the applicable state limitations law. The tolling of a statue of limitations is procedural and within the power of Congress under the Necessary and Proper Clause of the United States Constitution.\n3. Constitutional Law\u2014 violation of State constitutional rights by individual \u2014 no state action\nThe trial court properly granted a 12(b)(6) dismissal of state constitutional claims against a Highway Patrol officer in his individual capacity; North Carolina does not recognize a cause of action for monetary damages against a person in his individual capacity for alleged violations of a plaintiffs state constitutional rights.\n4. Constitutional Law\u2014 state claim for illegal search \u2014 trespass as adequate remedy\nThe trial court did not err by granting a 12(b)(6) dismissal of state constitutional claims based upon allegations that a Highway Patrol officer illegally searched defendant\u2019s vehicle; the common law action for trespass to chattel provides an adequate remedy.\n5. Constitutional Law\u2014 state claim for illegal seizure \u2014 false imprisonment as adequate remedy \u2014 survival of action\nThe trial court erred by granting a 12(b)(6) dismissal of a civil claim under the State constitution against a Highway Patrol officer in his official capacity for illegally detaining or seizing the decedent. Although the common law claim of false imprisonment provides an adequate remedy for unlawful restraint, that cause of action does not survive the death of a decedent.\n6. Constitutional Law\u2014 state claim for excessive force\u2014 wrongful death as adequate remedy\nThe trial court did not err by granting a 12(b)(6) dismissal on civil claim for excessive force under the state constitution against a Highway Patrol officer in his official capacity arising from the death of plaintiff\u2019s decedent. Plaintiff\u2019s constitutional claim included allegations of malice, recklessness, and negligence for which a wrongful death claim would compensate plaintiff.\n7. Collateral Estoppel and Res Judicata\u2014 federal action\u2014 identical issue litigated and necessary\nThe trial court properly dismissed plaintiffs\u2019 state wrongful death claim against a Highway Patrol trooper under N.C.G.S. \u00a7 1A-1, Rule 12(b)(6) where that claim was collaterally estopped by a federal ruling that defendant was entitled to qualified immunity. The issue raised in the federal district court\u2019s decision (the standard of defendant\u2019s conduct under the circumstances) was identical to the issue raised in the state wrongful death action, the federal court determined that issue in defendant\u2019s favor, and the determination was necessary to the federal district court\u2019s judgment.\n8. Immunity\u2014 sovereign \u2014 state constitutional claim\nThe trial court erred by granting a Rule 12(b)(6) dismissal of a claim against a Highway Patrolman alleging a violation of equal protection under the North Carolina Constitution. The doctrine of sovereign immunity does not bar a direct claim against the State when the claim is based on a violation of the Declaration of Rights of the North Carolina Constitution.\nAppeal by plaintiffs from orders filed 15 February 1999 by Judge Catherine C. Eagles in Guilford County Superior Court. Heard in the Court of Appeals 15 February 2000.\nMcSurely & Osment, by Alan McSurely and Ashley Osment, for plaintiff-appellants.\nAttorney General Michael F. Easley, by Special Deputy Attorney General Isaac T. Avery, III and Assistant Attorney General Reuben F Young, for defendant-appellees." }, "file_name": "0430-01", "first_page_order": 462, "last_page_order": 472 }