{ "id": 9249551, "name": "NORMAN S. BECK, Plaintiff v. THE CITY OF DURHAM, ORVILLE POWELL, Individually and in ms official capacity as City Manager of the City of Durham, J. W. McNEIL, Individually and in his official capacity as Chief of Police of the City of Durham, and P. LAMONT EWELL, Individually and in his official capacity as City Manager of the City of Durham, Defendants", "name_abbreviation": "Beck v. City of Durham", "decision_date": "2002-12-03", "docket_number": "No. COA01-1407", "first_page": "221", "last_page": "234", "citations": [ { "type": "official", "cite": "154 N.C. App. 221" } ], "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": "42 U.S.C.A. \u00a7 1983", "category": "laws:leg_statute", "reporter": "U.S.C.", "year": 2002, "opinion_index": 0 }, { "cite": "558 S.E.2d 174", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "opinion_index": 0 }, { "cite": "355 N.C. 205", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 220072 ], "year": 2002, "opinion_index": 0, "case_paths": [ "/nc/355/0205-01" ] }, { "cite": "544 S.E.2d 778", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "opinion_index": 0 }, { "cite": "352 N.C. 588", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 685057, 684961, 685047, 685019, 684927 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/nc/352/0588-03", "/nc/352/0588-05", "/nc/352/0588-02", "/nc/352/0588-04", "/nc/352/0588-01" ] }, { "cite": "530 S.E.2d 590", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "opinion_index": 0 }, { "cite": "138 N.C. 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App.", "case_ids": [ 8521339 ], "year": 1993, "pin_cites": [ { "page": "300" } ], "opinion_index": 0, "case_paths": [ "/nc-app/112/0295-01" ] } ], "analysis": { "cardinality": 1203, "char_count": 32420, "ocr_confidence": 0.754, "pagerank": { "raw": 2.596593115447641e-07, "percentile": 0.8191193772301011 }, "sha256": "4f6de3376cd56082f0d3d40a8b941f42b8117a19b2c199fea6165b502c04b201", "simhash": "1:3fe9fcf8142fef1d", "word_count": 5103 }, "last_updated": "2023-07-14T14:30:59.212861+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges GREENE and TIMMONS-GOODSON concur." ], "parties": [ "NORMAN S. BECK, Plaintiff v. THE CITY OF DURHAM, ORVILLE POWELL, Individually and in ms official capacity as City Manager of the City of Durham, J. W. McNEIL, Individually and in his official capacity as Chief of Police of the City of Durham, and P. LAMONT EWELL, Individually and in his official capacity as City Manager of the City of Durham, Defendants" ], "opinions": [ { "text": "HUNTER, Judge.\nNorman S. Beck (\u201cplaintiff\u2019) appeals from the Durham County Superior Court\u2019s order in favor of the City of Durham (\u201cthe City\u201d), Orville Powell (\u201cPowell\u201d), P. Lamont Ewell (\u201cEwell\u201d), and J. W. McNeil (\u201cMcNeil\u201d) (collectively \u201cdefendants\u201d) granting dismissal of plaintiff\u2019s claims for (1) constructive wrongful discharge against the City and McNeil; (2) negligent promotion, supervision, and retention against the City and Powell; (3) negligent infliction of emotional distress (\u201cNIED\u201d) against all four defendants; (4) intentional infliction of emotional distress (\u201cIIED\u201d) against the City, McNeil, and Ewell; (5) tortious interference with contract against the City and Ewell; (6) tor-tious interference with prospective advantage against the City and Ewell; and (7) violation of due process and equal protection against the City. We affirm.\nThe relevant allegations of plaintiff\u2019s complaint are as follows: Plaintiff served as a police officer for the Durham Police Department (\u201cDPD\u201d) from 1979 to 1996. During his employment, the City employed Powell as City Manager. The City also employed McNeil as a supervisor in the DPD and later promoted him to Chief of Police in 1992. Neither of these men are currently employed by the City. Ewell was subsequently employed as City Manager.\nIn 1989, plaintiff was assigned to serve as a traffic supervisor. His immediate supervisor was McNeil. While under McNeil\u2019s supervision, plaintiff was ordered to void a speeding ticket for a friend of McNeil\u2019s \u2014 an action that was in direct violation of DPD policies and state law. When plaintiff refused and attempted to expose McNeil\u2019s improper actions, McNeil\u2019s treatment of him became hostile and harassing. McNeil retaliated against plaintiff by (1) assigning plaintiff to on-call status twenty-four hours a day, seven days a week for six years with no relief, (2) taking away plaintiff\u2019s office, and (3) requiring plaintiff to work longer hours by assigning his unit to walking patrol. Also, plaintiff suffered racial harassment from McNeil, a black man, and other black police officers because plaintiff, a white and Jewish male, was referred to as \u201cMark Furman\u201d and subjected to jokes about Jewish people. Ultimately, plaintiff requested a transfer to regular patrol duty as a line police sergeant in March of 1995. McNeil granted this request.\nShortly after being transferred, plaintiff sustained a work-related injury that precluded him from returning to regular patrol duty. Plaintiff requested a light-duty assignment. However, McNeil failed to arrange a meeting between plaintiff and the personnel department to discuss plaintiff\u2019s medical disability \u2014 another action in direct violation of policies and procedures established by the City and DPD regarding an employee\u2019s rights to continued employment after a work-related injury. As a result, plaintiff was placed on a permanent midnight shift in the DPD records department, which was not the type of assignment commonly given to police officers recovering from an injury. Defendant subsequently retired on 31 October 1996, terminating his employment with the DPD.\nFollowing his retirement, plaintiff started a private investigative business. However, after Ewell (in his position as City Manager) told one of plaintiff\u2019s clients that she \u201c \u2018could do better\u2019 \u201d than plaintiff\u2019s services, that client terminated her contract with plaintiff.\nOn 22 November 1999, plaintiff filed a complaint in Durham County Superior Court alleging two federal claims under Title 42, Section 1981 and Section 1983 of the United States Code, as well as the first six state law claims previously mentioned against the City and against McNeil, Powell, and Ewell individually and in their official capacity. Defendants removed the action to the United States District Court for the Middle District of North Carolina. Thereafter, defendants filed a motion to dismiss plaintiff\u2019s action. On 29 November 2000, the middle district court dismissed plaintiff\u2019s federal claims, and after declining to exercise supplemental jurisdiction over plaintiff\u2019s state law claims, dismissed those claims without prejudice. Plaintiff did not appeal the judgment.\nPlaintiff reasserted his state law claims on 29 December 2000 in another complaint filed in Durham County Superior Court. In support of these claims, plaintiffs complaint contained all of the allegations previously mentioned, as well as allegations that (1) the work conditions created by McNeil forced him into retirement, (2) the City and Powell negligently promoted, supervised, and retained McNeil as Chief of Police despite having knowledge of his actions, and (3) Ewell induced a client to terminate her contract with plaintiff\u2019s private investigative business. The complaint further alleged that the City had waived its governmental immunity by purchasing liability insurance.\nOn 12 April 2001, defendants filed a motion seeking dismissal of plaintiff\u2019s first six claims pursuant to Rule 12(b)(6) or, in the alternative, pursuant to Rule 56 of the North Carolina Rules of Civil Procedure. In support of their motion, defendants submitted a certified copy of the order and judgment from the middle district court and the affidavit of Laura W. Henderson (\u201cHenderson\u201d), an employee of the City who was familiar with the City\u2019s insurance policies. In her affidavit, Henderson stated that the City had no liability insurance that provided coverage for any of the matters alleged by plaintiff in his complaint.\nOn 12 April 2001, defendants noticed the hearing on their motion to dismiss for 31 May 2001 at 9:30 a.m. At 9:34 a.m. on 31 May 2001, plaintiff filed an amended complaint and served it during the hearing. The amended complaint contained a new claim alleging the City\u2019s violation of plaintiff\u2019s rights to due process and equal protection, as well as additional allegations to support plaintiff\u2019s other six claims. Nevertheless, defendants\u2019 motion to dismiss was granted in an order and judgment filed 26 June 2001. Plaintiff appeals the court\u2019s dismissal of all his claims against all defendants, with the exception of his claim for NIED against Ewell (as stated in plaintiff\u2019s brief).\nI.\nThe first issue presented to this Court is whether the trial court properly dismissed plaintiff\u2019s action pursuant to either Rule 12(b)(6) or Rule 56.\nRule 12(b) provides, inter alia, that a trial court\u2019s review of a 12(b)(6) motion to dismiss requires a determination of \u201cwhether, as a matter of law, the allegations of the complaint, treated as true, are sufficient to state a claim upon which relief may be granted under some legal theory, whether properly labeled or not.\u201d Miller v. Nationwide Mutual Ins. Co., 112 N.C. App. 295, 300, 435 S.E.2d 537, 541 (1993). Rule 12(b) further provides that if \u201cmatters outside the [complaint] are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56 . . . N.C. Gen. Stat. \u00a7 1A-1, Rule 12(b) (2001). Thus, in treating a motion as one for dismissal under Rule 56, the trial court, when viewing the evidence in the light most favorable to the non-movant, must determine whether the moving party has shown, through pleadings and affidavits, that there is no genuine issue of material fact requiring a trial and that he is entitled to judgment as a matter of law. Bruce-Terminix Co. v. Zurich Ins. Co., 130 N.C. App. 729, 733, 504 S.E.2d 574, 577 (1998).\nHere, defendants\u2019 motion to dismiss stated that defendants \u201cmove, pursuant to Rule 12(b)(6), or in the alternative pursuant to Rule 56, . . . for an order dismissing [plaintiffs] action in its entirety.\u201d The subsequent court order and judgment granting defendants\u2019 motion to dismiss stated:\nDefendants moved to dismiss all of Plaintiffs claims pursuant to Rule 12(b)(6) ... on the grounds that Plaintiff has failed to state a claim upon which relief can be granted. In the alternative, Defendants moved to dismiss all of Plaintiff\u2019s claims pursuant to Rule 12(b) and submitted a certified copy of the judgment and order dismissing Plaintiff\u2019s federal claims . . . and the Affidavit of Laura Henderson.\nPlaintiff argues the trial corut erred in considering the previous federal court judgment and Henderson\u2019s affidavit because the current order and judgment only made reference to Rule 12(b)(6) and Rule 12(b), not to Rule 56. However, since Rule 12(b) expressly provides for the disposal of claims under Rule 56 when outside matters are considered, it was not necessary for the trial court to specifically reference Rule 56 in its order and judgment. Furthermore, it is clear from the text of the order and judgment that the trial court used Rule 12(b) and Rule 56 interchangeably to refer to the alternative grounds for dismissal as stated in defendants\u2019 motion. Therefore, we conclude the order and judgment was a grant of dismissal under Rule 56 where the court considered matters outside the pleadings.\nII.\nThe second issue, which arises from defendants\u2019 brief, is in regards to the timeliness of (A) plaintiff\u2019s amended complaint and (B) several of plaintiff\u2019s claims.\nA. Amended Complaint\nDefendant argues that plaintiff failed to exercise his right to amend his complaint in a timely manner. Based on the circumstances in this case, we disagree.\nRule 15 of the North Carolina Rules of Civil Procedure provides, in pertinent part, that \u201c[a] party may amend his pleading once as a matter of course at any time before a responsive pleading is served . . . .\u201d N.C. Gen. Stat. \u00a7 1A-1, Rule 15(a) (2001) (emphasis added). For purposes of this rule, our Court has held that \u201c[a] motion to dismiss ... is not a \u2018responsive pleading\u2019 under Rule 15(a) and so does not itself terminate plaintiff\u2019s unconditional right to amend a complaint under Rule 15(a).\u201d Johnson v. Bollinger, 86 N.C. App. 1, 7, 356 S.E.2d 378, 382 (1987). The record in the instant case clearly indicates that plaintiff filed his amended complaint approximately four minutes after the hearing on defendants\u2019 motion to dismiss began. Prior to the hearing, defendants had only filed a motion to dismiss, which is not a responsive pleading. It is unlikely that the drafters of Rule 15(a) intended \u201cany time\u201d to encompass plaintiff serving his amended complaint during a hearing. Nevertheless, defendants\u2019 failure to present a record of objections to this last minute act by plaintiff or provide a verbatim transcript indicating whether the court took issue with the amended complaint compels this Court to conclude that in this case the complaint was timely filed.\nB. Statute of Limitations\nAdditionally, defendants argue that several of the claims raised in plaintiff\u2019s amended complaint fail to allege any wrongful conduct by defendants within the applicable statute of limitations period. For the following reasons, we agree.\n\u201cThe statute of limitations is \u2018inflexible and unyielding,\u2019 and the defendants are vested with the right to rely on it as a defense.\u201d Staley v. Lingerfelt, 134 N.C. App. 294, 299, 517 S.E.2d 392, 396 (1999) (citation omitted). In North Carolina, claims against defendants alleging personal injury are governed by a three-year statute of limitations. N.C. Gen. Stat. \u00a7 1-52(5) (2001). This limitations period also applies to emotional distress claims, claims arising from the alleged wrongful conduct of public officials, and claims of alleged negligence. See Fowler v. Valencourt, 334 N.C. 345, 435 S.E.2d 530 (1993); Waddle v. Sparks, 331 N.C. 73, 85, 414 S.E.2d 22, 28 (1992). \u201cThe trial court has no discretion when considering whether a claim is barred by the statute of limitations.\u201d Staley, 134 N.C. App. at 299, 517 S.E.2d at 396.\nAll parties in the present case agree on the applicability of a three-year statute of limitations to plaintiffs first six claims; their only dispute is when that three-year period began to run with respect to several of the claims plaintiff raised against the City, McNeil, and Powell. Defendants filed a motion to dismiss these claims alleging that they were entitled to such because \u201c[p]laintiff s claims are clearly barred by.. . applicable statutes of limitations.\u201d Our courts have held that \u201c[o]nce a defendant has properly pleaded the statute of limitations, the burden is then placed upon the plaintiff to offer a forecast of evidence showing that the action was instituted within the permissible period after the accrual of the cause of action.\u201d Pembee Mfg. Corp. v. Cape Fear Constr. Co., 313 N.C. 488, 491, 329 S.E.2d 350, 353 (1985). When forecasting evidence, plaintiff \u201cmay not rest upon the mere allegations or denials of his pleading,\u201d but must instead \u201cset forth specific facts showing that there is a genuine issue for trial.\u201d N.C. Gen. Stat. \u00a7 1A-1, Rule 56(e) (2001).\nIn his complaint, plaintiff alleged that his injuries did not finally accrue or become known to him until 31 October 1996, which presumably gave him until Monday, 1 November 1999, to file his action. See N.C. Gen. Stat. \u00a7 1A-1, Rule 6(a) (2001). However, since defendants properly pled a statute of limitations defense in their motion to dismiss, the allegations in plaintiff\u2019s complaint alone were insufficient to establish a genuine issue for trial. See Staley, 134 N.C. App. at 299, 517 S.E.2d at 396 (recognizing that a statute of limitations defense is properly pled when raised by a defendant in a Motion for Summary Judgment instead of in a responsive pleading). Plaintiff cannot meet his burden of forecasting evidence by simply filing an amended, unverified complaint that contains additional allegations to support his claims. Thus, the court did not err in granting summary judgment on plaintiff\u2019s claims against (1) the City and Powell for negligent promotion, supervision, and retention; (2) McNeil and Powell for NIED; and (3) McNeil for IIED. Plaintiff failed to set forth specific facts establishing that these claims were not barred by the statute of limitations.\nIII.\nThird, this Court must determine whether plaintiffs remaining claims against any or all of the remaining defendants were properly dismissed due to governmental immunity.\n\u201cUnder the doctrine of governmental immunity, a municipality is not liable for the torts of its officers and employees if the torts are committed while they are performing a governmental function . . . .\u201d Taylor v. Ashburn, 112 N.C. App. 604, 607, 436 S.E.2d 276, 278 (1993). However, \u201c[a]ny city may . . . waive its immunity from civil tort liability by purchasing liability insurance.\u201d Id. \u201cImmunity is waived only to the extent that the city or town is indemnified by the insurance contract from liability for the acts alleged.\u201d Combs v. Town of Belhaven, 106 N.C. App. 71, 73, 415 S.E.2d 91, 92 (1992).\nIn the case sub judice, plaintiff argues that his remaining claims against the City (with the exception of his due process and equal protection claim) were erroneously dismissed because the City waived its governmental immunity by purchasing liability insurance or participating in a local government risk pool. Yet defendants, in moving for dismissal of the case, presented to the court Henderson\u2019s affidavit stating that the City did not waive its immunity Once defendants, as the moving party, made and supported their motion for summary judgment, the burden once again shifted to plaintiff, as the non-moving party, to introduce evidence in opposition to the motion that set forth \u201cspecific facts showing that there is a genuine issue for trial.\u201d See N.C. Gen. Stat. \u00a7 1A-1, Rule 56(e). Plaintiff failed to come forward with a forecast of his own evidence of specific facts demonstrating that this immunity was waived. See Amoco Oil Co. v. Griffin, 78 N.C. App. 716, 718, 338 S.E.2d 601, 602 (1986). Thus, the court\u2019s dismissal of the remaining claims against the City was proper because defendants met their burden of showing that there was no genuine issue of a material fact regarding immunity. See Moore v. Coachmen Industries, Inc., 129 N.C. App. 389, 393-94, 499 S.E.2d 772, 775 (1998).\nFurthermore, as stated previously, the doctrine of governmental immunity also bars actions against \u201cpublic officials sued in their official capacity.\u201d Messick v. Catawba County, 110 N.C. App. 707, 714, 431 S.E.2d 489, 493 (1993) (citations omitted). The chief of police and the city manager are both considered public officials. See generally Thompson Cadillac-Oldsmobile, Inc. v. Silk Hope Automobile, Inc., 87 N.C. App. 467, 471-72, 361 S.E.2d 418, 421 (1987). Thus, McNeil, Powell, and Ewell are also immune from suit for tortious acts allegedly committed in their official capacity.\nIV.\nHaving determined that defendants Ewell and McNeil are entitled to governmental immunity for acts performed in their official capacity, we next examine whether either or both of these defendants are potentially liable to plaintiff individually on the remaining claims against them.\nDespite public officials being shielded from liability in their official capacities, \u201cthey remain personally liable for any actions which may have been corrupt, malicious or perpetrated outside and beyond the scope of official duties.\u201d Locus v. Fayetteville State University, 102 N.C. App. 522, 526, 402 S.E.2d 862, 865 (1991). Thus, in order to sustain a personal or individual capacity suit, \u201cthe plaintiff must initially make a prima facie showing that the defendant-official\u2019s tor-tious conduct falls within one of the immunity exceptions, i.e., that the official\u2019s conduct is malicious, corrupt, or outside the scope of official authority.\u201d Trantham v. Lane, 127 N.C. App. 304, 307, 488 S.E.2d 625, 627 (1997). However, \u201cif the plaintiff alleges an intentional tort claim, a determination [of governmental immunity] is unnecessary since, in such cases, neither a public official nor a public employee is immunized from suit in his individual capacity.\u201d Wells v. North Carolina Dept. of Correction, 152 N.C. App. 307, 320, 567 S.E.2d 803, 813 (2002).\nThe remaining claim against McNeil asserts constructive willful discharge. The remaining claims against Ewell assert IIED, tortious interference with contract, and tortious interference with prospective advantage. Since these are all intentional tort claims, McNeil and Ewell are potentially liable to plaintiff individually. Accordingly, we must now determine whether the trial court erred in granting summary judgment on plaintiff\u2019s claims alleging individual liability against (A) McNeil for constructive discharge, (B) Ewell for IIED, and (C) Ewell for tortious interference with contract and with prospective advantage.\nA.Constructive Wrongful Discharge\nPlaintiff argues the court erred in dismissing his claim against McNeil for constructive wrongful discharge in his individual capacity. However, North Carolina courts have yet to adopt this tort. Graham v. Hardee\u2019s Food Systems, 121 N.C. App. 382, 385, 465 S.E.2d 558, 560 (1996). Our courts have only recognized the validity of a claim for constructive discharge \u201cin the context of interpreting whether constructive termination by [a plaintiffs] employer triggered the termination payment provision of [an] employment contract.\u201d Doyle v. Asheville Orthopaedic Assocs., P.A., 148 N.C. App. 173, 177, 557 S.E.2d 577, 579 (2001), disc. review denied, 355 N.C. 348, 562 S.E.2d 278 (2002). Since this is not the factual scenario currently on appeal, we hold the court did not err in dismissing plaintiffs constructive wrongful discharge claim.\nB.IIED\nNext, plaintiff argues the court erred in dismissing his claim against Ewell for IIED in his individual capacity.\nIn an action for IIED, a plaintiff must prove \u201c(1) extreme and outrageous conduct, (2) which is intended to cause and does cause (3) severe emotional distress to another.\u201d Dickens v. Puryear, 302 N.C. 437, 452, 276 S.E.2d 325, 335 (1981). This Court has defined the element of \u201cextreme and outrageous conduct\u201d as \u201c \u2018 \u201cconduct [which] exceeds all bounds usually tolerated by decent society.\u201d \u2019 \u201d Fieldcrest Cannon, Inc. v. Fireman\u2019s Fund Insurance Co., 124 N.C. App. 232, 252, 477 S.E.2d 59, 72 (1996) (citations omitted). \u201cIt is a question of law for the court to determine, from the materials before it, whether the conduct complained of may reasonably be found to be sufficiently outrageous as to permit recovery.\u201d Hogan v. Forsyth County Club Co., 79 N.C. App. 483, 490, 340 S.E.2d 116, 121 (1986).\nBased on our reading of the complaint, plaintiffs allegations that Ewell spoke negatively about him to one of plaintiffs clients do not demonstrate the level of \u201cextreme and outrageous conduct\u201d necessary to support an action for IIED. Thus, the trial court did not err.\nC.Tortious Interference with Contract and with Prospective Advantage\nPlaintiff also argues his claims for tortious interference with contract and with prospective advantage against Ewell in his individual capacity were improperly dismissed by the trial court.\nThe elements of tortious interference with contract are as follows:\n(1) a valid contract between the plaintiff and a third person which confers upon the plaintiff a contractual right against a third person; (2) the defendant knows of the contract; (3) the defendant intentionally induces the third person not to perform the contract; (4) and in doing so acts without justification; (5) resulting in actual damage to plaintiff.\nUnited Laboratories, Inc. v. Kuykendall, 322 N.C. 643, 661, 370 S.E.2d 375, 387 (1988). \u201cIn order to maintain an action for tortious interference with prospective advantage, Plaintiff must show that Defendants induced a third party to refrain from entering into a contract with Plaintiff without justification. Additionally, Plaintiff must show that the contract would have ensued but for Defendants\u2019 interference.\u201d DaimlerChrysler Corp. v. Kirkhart, 148 N.C. App. 572, 585, 561 S.E.2d 276, 286, (citing Cameron v. New Hanover Memorial Hospital, 58 N.C. App. 414, 440, 293 S.E.2d 901, 917 (1982)), temporary stay allowed, 355 N.C. 284, 560 S.E.2d 798 (2002).\nBoth of these claims require Ewell\u2019s interference to be \u201cwithout justification.\u201d This Court has held that in order to establish this element, plaintiff\u2019s \u201ccomplaint must admit of no motive for interference other than malice.\u201d Filmar Racing, Inc. v. Stewart, 141 N.C. App. 668, 674, 541 S.E.2d 733, 738 (2001). With respect to both claims in plaintiff\u2019s complaint, he alleged that Ewell\u2019s comment to one of plaintiff\u2019s clients that she \u201ccould do better\u201d than hiring plaintiff induced that client to terminate her contract with plaintiff. However, this allegation simply expresses Ewell\u2019s subjective view regarding plaintiff\u2019s abilities and does not express the malicious motive required by these torts. Therefore, the court did not err in granting summary judgment on these claims against Ewell.\nIV.\nThe final issue presented to this Court is whether the trial court erred in granting summary judgment because there were no genuine issues of material fact by which to allow plaintiffs claim against the City for violation of his rights to due process and equal protection as enforced by Title 42, Section 1983 of the United States Code (\u201cSection 1983\u201d) and Article I, Section 19 of the North Carolina Constitution to go forward. Specifically, plaintiff contends he has been denied due process and equal protection of the law because the City asserted governmental immunity in his case in an effort not to pay damages for his claims, while customarily waiving it for similarly situated individuals. The City contends that this claim is barred by res judicata because the middle district court previously dismissed plaintiffs federal claim based on Section 1983.\nThe doctrine of res judicata was developed by the Courts \u201cfor the dual purposes of protecting litigants from the burden of relitigating previously decided matters and promoting judicial economy by preventing needless litigation.\u201d Bockweg v. Anderson, 333 N.C. 486, 491, 428 S.E.2d 157, 161 (1993). \u201cRes judicata precludes a second suit involving the same claim between the same parties or those in privity with them when there has been a final judgment on the merits in a prior action in a court of competent jurisdiction.\u201d Little v. Hamel, 134 N.C. App. 485, 487, 517 S.E.2d 901, 902 (1999). \u201cThe defense of res judicata may not be avoided by shifting legal theories or asserting a new or different ground for relief.\u201d Rodgers Builders v. McQueen, 76 N.C. App. 16, 30, 331 S.E.2d 726, 735 (1985).\nAlthough plaintiffs prior and current due process and equal protection claims were brought under Section 1983 and against the same party, these claims were based on different factual and legal issues. The prior claim related to plaintiffs continued employment and job reassignment with the DPD, which required the court to consider the facts and circumstances prior to plaintiffs retirement. The current claim related to the City\u2019s actions with respect to plaintiffs tort claims filed after his retirement and whether those claims were treated any differently by the City from claims raised by similarly situated individuals. Thus, plaintiffs current claim under Section 1983 is not barred by res judicata.\nNevertheless, we conclude the trial court did not err in granting summary judgment on plaintiffs claim for violation of his rights to due process and equal protection. Plaintiff made the following allegations with respect to this claim against the City:\n86. The City\u2019s custom and practice of paying damages in some tort claims asserted against it, while refusing to pay damages to Plaintiff Beck, is unconstitutional, as it denies Plaintiff Beck\u2019s right to due process and equal protection under Article I, Section 19 of the North Carolina Constitution.\n87. Plaintiff Beck has been damaged by the denial of his constitutional rights by the City, and he is entitled to compensation for said damages pursuant to Article I, Section 19 of the North Carolina Constitution and 42 U.S.C.A. Section 1983.\nThese allegations, even when viewed in the light most favorable to plaintiff, are insufficient to establish that the City\u2019s actions were so arbitrary and capricious as to violate plaintiff\u2019s rights to due process and equal protection. See generally Dobrowolska v. Wall, 138 N.C. App. 1, 530 S.E.2d 590, disc. review allowed, 352 N.C. 588, 544 S.E.2d 778 (2000), disc. review improvidently allowed in part; appeal dismissed ex mero motu in part, 355 N.C. 205, 558 S.E.2d 174 (2002). Plaintiff\u2019s assignment of error is therefore overruled because his complaint fails to indicate genuine issues of material fact regarding the City\u2019s refusal to pay damages for his claims.\nFor the aforementioned reasons, we conclude that the trial court did not err in granting defendants\u2019 motion to dismiss all of plaintiff\u2019s claims.\nAffirmed.\nJudges GREENE and TIMMONS-GOODSON concur.\n. Plaintiff\u2019s three claims against Ewell all clearly fall within the statutory time limit because they all arise out of events that occurred after plaintiffs retirement from the DPD.\n. Section 1983 states:\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 (2002).", "type": "majority", "author": "HUNTER, Judge." } ], "attorneys": [ "Mitchell Law Offices, P.A., by Donald R. Von Hagen; Foil Law Offices, by Beth Poinsett Von Hagen, for plaintiff-appellant.", "Newsom, Graham, Hedrick & Kennon, PA., by Joel M. Craig and Thomas H. Lee, Jr., for defendant-appellees." ], "corrections": "", "head_matter": "NORMAN S. BECK, Plaintiff v. THE CITY OF DURHAM, ORVILLE POWELL, Individually and in ms official capacity as City Manager of the City of Durham, J. W. McNEIL, Individually and in his official capacity as Chief of Police of the City of Durham, and P. LAMONT EWELL, Individually and in his official capacity as City Manager of the City of Durham, Defendants\nNo. COA01-1407\n(Filed 3 December 2002)\n1. Civil Procedure\u2014 Rule 12(b)(6) dismissal \u2014 outside matters considered\nThere was no error in the dismissal of an employment harassment complaint where the order and judgment referred to Rule 12(b)(6) but an affidavit and a previous federal judgment were considered. Rule 12(b) expressly provides for the disposal of claims under Rule 56 when outside matters are considered and it was not necessary for the court to specifically refer to Rule 56. Furthermore, it is clear that the court used Rule 12(b) and Rule 56 interchangeably.\n2. Pleadings\u2014 timeliness \u2014 amended complaint \u2014 filed during hearing on motion to dismiss\nAn amended complaint was timely filed even though plaintiff filed his amended complaint four minutes after the beginning of the hearing on defendant\u2019s motion to dismiss where defendants did not present a record of objections or a transcript indicating whether the trial court took issue with the amended complaint. N.C.G.S. \u00a7 1A-1, Rule 15(a).\n3. Statutes of Limitation and Repose\u2014 defense pled\u2014 amended, unverified complaint not sufficient\nAn amended, unverified complaint was not sufficient to establish a genuine issue for trial where defendants had properly pled a statute of limitations defense.\n4. Immunity\u2014 governmental \u2014 affidavit that claims not insured \u2014 no forecast of coverage\nThe trial court\u2019s dismissal of employment harassment claims against the City based on governmental immunity was proper where defendant presented the affidavit of a City employee that the City did not have insurance coverage for any of the matters in the complaint and plaintiff did not come forward with a forecast of evidence that immunity was waived.\n5. Immunity\u2014 governmental \u2014 police chief and city manager\u2014 official capacity\nThe Durham police chief and city manager were public officials immune from suit for tortious acts committed in their official capacity.\n6. Immunity\u2014 governmental \u2014 intentional torts\nDetermination of governmental immunity is unnecessary if an intentional tort is alleged, since neither public officials nor public employees have immunity from suit in their individual capacities.\n7. Employer and Employee\u2014 constructive wrongful discharge \u2014 not generally recognized\nThere was no error in dismissing a constructive wrongful discharge claim where there was no termination payment provision in an employment contract. This tort has not been recognized in North Carolina except in that context.\n8. Emotional Distress\u2014 intentional infliction \u2014 negative opinion of plaintiff \u2014 not outrageous\nThe trial court did not err by dismissing plaintiffs claim for intentional infliction of emotional distress against a city manager where the city manager spoke negatively about plaintiff after plaintiff retired as a police officer and became a private investigator. Plaintiff did not demonstrate the necessary level of extreme and outrageous conduct.\n9. Wrongful Interference\u2014 contract and prospective advantage \u2014 tortious interference \u2014 subjective view of plaintiff\u2014 not sufficiently malicious\nThe trial court did not err by granting summary judgment for defendant city manager on claims for interference with prospective advantage and interference with contract where defendant told plaintiffs client that she \u201ccould do better.\u201d This simply expressed defendant\u2019s subjective view of plaintiffs abilities and did not express the required malicious motive.\n10.Collateral Estoppel and Res Judicata\u2014 prior federal claim \u2014 different issues\nA 42 U.S.C. 1983 claim for selective waiving of governmental immunity was not barred by res judicata even though a prior federal claim had been dismissed where the claims were based on different factual and legal issues.\n11. Constitutional Law\u2014 due process \u2014 equal protection\u2014 municipal payment of selective claims\nThe trial court did not err by granting summary judgment for the City of Durham on due process and equal protection claims based on the City\u2019s practice of paying damages on some tort claims but not others. The allegations were insufficient to establish that the City was arbitrary and capricious.\nAppeal by plaintiff from an order and judgment entered 26 June 2001 by Judge Orlando F. Hudson, Jr. in Durham County Superior Court. Heard in the Court of Appeals 20 August 2002.\nMitchell Law Offices, P.A., by Donald R. Von Hagen; Foil Law Offices, by Beth Poinsett Von Hagen, for plaintiff-appellant.\nNewsom, Graham, Hedrick & Kennon, PA., by Joel M. Craig and Thomas H. Lee, Jr., for defendant-appellees." }, "file_name": "0221-01", "first_page_order": 249, "last_page_order": 262 }