{ "id": 4162227, "name": "ANGELL COPPER, by his mother and guardian ad litem, Sherry Copper; DESMOND JOHNSON, by his father and guardian ad litem, Wilmer Johnson; ERIC WARREN and DION WARREN, by their mother and guardian ad litem, Deann Warren; JOSHUA THORPE, by his mother and guardian ad litem, Treco Thorpe; TODD DOUGLAS, DECEASED, BY HIS MOTHER AND ADMINISTRATRIX OF HIS ESTATE, SHERYL SMITH; DEANTONIO RHODES, by his mother and guardian ad litem, Linda Rhodes; JAZMYN JENKINS; and GINA SOLARI; as individuals and as representatives of THE CLASS OF SIMILARLY SITUATED DURHAM PUBLIC SCHOOL STUDENTS, PLAINTIFFS v. ANN T. DENLINGER, individually and as Superintendent of Durham Public Schools; THE DURHAM PUBLIC SCHOOL BOARD OF EDUCATION; GAIL HEATH, individually and as Chair of the Durham Public School Board of Education; HEIDI CARTER, STEVE MARTIN and STEVE SCHEWEL, individually and as members of the Durham Public School Board of Education; LARRY MCDONALD, individually and as former Principal of Southern High School; RICHARD WEBBER, individually and as Principal of C.E. Jordan High School; RODRIQUEZ TEAL, individually and as Principal of Southern High School; WORTH HILL, Durham County Sheriff; and R.A. SIPPLE and JOSEPH COSTA, individually, as agents and employees of the Durham County Sheriff, as agents of the Superintendent of Durham Public Schools, and as agents of the Durham Public School Board of Education, Defendants", "name_abbreviation": "Copper v. Denlinger", "decision_date": "2008-10-21", "docket_number": "No. COA07-205", "first_page": "249", "last_page": "293", "citations": [ { "type": "official", "cite": "193 N.C. App. 249" } ], "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": "436 U.S. 658", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1490618 ], "opinion_index": -1, "case_paths": [ "/us/436/0658-01" ] }, { "cite": "42 U.S.C. \u00a7 1983", "category": "laws:leg_statute", "reporter": "U.S.C.", "weight": 7, "opinion_index": -1 }, { "cite": "665 S.E.2d 787", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12641796 ], "year": 2008, "pin_cites": [ { "page": "796" } ], "opinion_index": 0, "case_paths": [ "/se2d/665/0787-01" ] }, { "cite": "519 U.S. 1112", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11775264, 11775708, 11775654, 11775399, 11775499, 11775307, 11775602, 11775219, 11775543, 11775448, 11775353, 11775899, 11775964, 11775774 ], "year": 1997, "opinion_index": 0, "case_paths": [ "/us/519/1112-02", "/us/519/1112-11", "/us/519/1112-10", "/us/519/1112-05", "/us/519/1112-07", "/us/519/1112-03", "/us/519/1112-09", "/us/519/1112-01", "/us/519/1112-08", "/us/519/1112-06", "/us/519/1112-04", "/us/519/1112-13", "/us/519/1112-14", "/us/519/1112-12" ] }, { "cite": "615 S.E.2d 408", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633276 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "414" }, { "page": "415", "parenthetical": "internal citations omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/615/0408-01" ] }, { "cite": "643 S.E.2d 566", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12638095 ], "weight": 2, "year": 2007, "pin_cites": [ { "page": "570", "parenthetical": "holding that court \"may consider matters outside the pleadings\" when reviewing a Rule 12(b)(1) motion" } ], "opinion_index": 0, "case_paths": [ "/se2d/643/0566-01" ] }, { "cite": "620 S.E.2d 873", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12634254 ], "weight": 7, "year": 2005, "pin_cites": [ { "page": "880", "parenthetical": "quoting Toomer v. Garrett, 155 N.C. App. 462, 468, 574 S.E.2d 76, 83 (2002), appeal dismissed and disc. review denied, 357 N.C. 66, 579 S.E.2d 576 (2003)" }, { "page": "880" }, { "page": "879" }, { "page": "879" }, { "page": "880" }, { "page": "880-81" } ], "opinion_index": 0, "case_paths": [ "/se2d/620/0873-01" ] }, { "cite": "654 S.E.2d 248", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12640024, 12640023 ], "year": 2007, "opinion_index": 0, "case_paths": [ "/se2d/654/0248-02", "/se2d/654/0248-01" ] }, { "cite": "361 N.C. 690", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3738880, 3744162, 3740355, 3737259, 3740972, 3736277, 12640024, 3743483, 3742814 ], "year": 2007, "opinion_index": 0, "case_paths": [ "/nc/361/0690-05", "/nc/361/0690-01", "/nc/361/0690-04", "/nc/361/0690-02", "/nc/361/0690-06", "/nc/361/0690-07", "/se2d/654/0248-02", "/nc/361/0690-03", "/nc/361/0690-08" ] }, { "cite": "638 S.E.2d 552", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12637388 ], "year": 2007, "pin_cites": [ { "page": "555" } ], "opinion_index": 0, "case_paths": [ "/se2d/638/0552-01" ] }, { "cite": "654 S.E.2d 47", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12640039 ], "year": 2007, "pin_cites": [ { "page": "51", "parenthetical": "declining to dismiss appeal for \"technical\" violation of Rule 12 where appellant substantially complied with Rule" } ], "opinion_index": 0, "case_paths": [ "/se2d/654/0047-01" ] }, { "cite": "647 S.E.2d 461", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12638957 ], "year": 2007, "pin_cites": [ { "page": "465", "parenthetical": "affirming trial court's dismissal of appeal for failure to timely file record on appeal where appellant \"presented no persuasive basis for setting aside the trial court's dismissal of its appeal\"" } ], "opinion_index": 0, "case_paths": [ "/se2d/647/0461-01" ] }, { "cite": "657 S.E.2d 361", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12640450 ], "weight": 14, "year": 2008, "pin_cites": [ { "page": "363" }, { "page": "365" }, { "page": "365" }, { "page": "365" }, { "page": "365" }, { "page": "366" }, { "page": "366" }, { "page": "366" }, { "page": "366-67" }, { "page": "366" } ], "opinion_index": 0, "case_paths": [ "/se2d/657/0361-01" ] }, { "cite": "644 S.E.2d 201", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12638295 ], "year": 2007, "pin_cites": [ { "page": "202", "parenthetical": "\"[E]very violation of the rules does not require dismissal of the appeal or the issue, although some other sanction may be appropriate, pursuant to Rule 25(b) or Rule 34 of the Rules of Appellate Procedure.\"" } ], "opinion_index": 0, "case_paths": [ "/se2d/644/0201-01" ] }, { "cite": "622 S.E.2d 718", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12634565 ], "weight": 7, "year": 2005, "pin_cites": [ { "page": "722" }, { "page": "722" }, { "page": "722-23", "parenthetical": "holding that when appellant failed to file for judicial settlement after receiving amendments and objections, record on appeal was settled by \"operation of Rules 11 and 12\" even though parties continued to discuss contents of record and subsequently reached agreement" }, { "page": "723", "parenthetical": "holding that 50-day period between appellee's serving amendments and objections to appellant's proposed record on appeal and appellant's filing the record on appeal with appellate court warranted dismissal under Rules 11 and 12" }, { "page": "723", "parenthetical": "dismissing appeal when record was not filed until 50 days after appellee served amendments and objections to proposed record" } ], "opinion_index": 0, "case_paths": [ "/se2d/622/0718-01" ] }, { "cite": "192 N.C. App. 544", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4160563 ], "year": 2008, "pin_cites": [ { "page": "555-56" } ], "opinion_index": 0, "case_paths": [ "/nc-app/192/0544-01" ] }, { "cite": "472 S.E.2d 8", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "opinion_index": 0 }, { "cite": "343 N.C. 511", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 798948, 798892, 798895, 798898, 798772 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/nc/343/0511-02", "/nc/343/0511-04", "/nc/343/0511-01", "/nc/343/0511-03", "/nc/343/0511-05" ] }, { "cite": "468 S.E.2d 856", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "858" } ], "opinion_index": 0 }, { "cite": "122 N.C. App. 265", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11916694 ], "pin_cites": [ { "page": "268" } ], "opinion_index": 0, "case_paths": [ "/nc-app/122/0265-01" ] }, { "cite": "251 F.3d 662", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 11095771 ], "weight": 5, "year": 2001, "pin_cites": [ { "page": "663-64" }, { "page": "666" }, { "page": "664", "parenthetical": "appeal from decision following bench trial" } ], "opinion_index": 0, "case_paths": [ "/f3d/251/0662-01" ] }, { "cite": "660 N.E.2d 259", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1996, "pin_cites": [ { "page": "263", "parenthetical": "holding that ordinance prohibiting persons from wearing known gang colors, emblems or other insignia \"is not merely broad, but open-ended and potentially limitless\"" } ], "opinion_index": 0 }, { "cite": "277 Ill. App. 3d 1", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1172398 ], "year": 1996, "pin_cites": [ { "page": "7", "parenthetical": "holding that ordinance prohibiting persons from wearing known gang colors, emblems or other insignia \"is not merely broad, but open-ended and potentially limitless\"" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/277/0001-01" ] }, { "cite": "976 F. Supp. 659", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 935682 ], "weight": 3, "year": 1997, "pin_cites": [ { "page": "669", "parenthetical": "holding that school policy that prohibited the wearing of \"gang-related apparel\" was unconstitutionally vague because it lacked a sufficient definition of such apparel" }, { "page": "668", "parenthetical": "holding that it would not \"be overly burdensome for the District to provide a definite list of prohibited items and to update that list as needed\"" }, { "page": "663", "parenthetical": "decision following bench trial" } ], "opinion_index": 0, "case_paths": [ "/f-supp/976/0659-01" ] }, { "cite": "88 F. Supp. 2d 1234", "category": "reporters:federal", "reporter": "F. Supp. 2d", "case_ids": [ 11469962 ], "year": 2000, "pin_cites": [ { "page": "1245" } ], "opinion_index": 0, "case_paths": [ "/f-supp-2d/88/1234-01" ] }, { "cite": "110 F.3d 1303", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 694897 ], "weight": 6, "year": 1997, "pin_cites": [ { "page": "1305" }, { "page": "1310", "parenthetical": "internal citations omitted" }, { "page": "1311", "parenthetical": "emphasis added" }, { "page": "1303" }, { "page": "1306", "parenthetical": "appeal from summary judgment order" } ], "opinion_index": 0, "case_paths": [ "/f3d/110/1303-01" ] }, { "cite": "554 S.E.2d 840", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "847" } ], "opinion_index": 0 }, { "cite": "147 N.C. App. 52", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9377813 ], "year": 2001, "pin_cites": [ { "page": "60" } ], "opinion_index": 0, "case_paths": [ "/nc-app/147/0052-01" ] }, { "cite": "121 S. Ct. 191", "category": "reporters:federal", "reporter": "S. Ct.", "case_ids": [ 11108409 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/vet-app/14/0191-01" ] }, { "cite": "148 L. Ed. 2d 132", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2000, "opinion_index": 0 }, { "cite": "531 U.S. 880", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9550755, 9551108, 9551591, 9551815, 9550890, 9551371, 9551660, 9550956, 9551279, 9551440, 9551731, 9551510, 9551196, 9550814 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/us/531/0880-01", "/us/531/0880-05", "/us/531/0880-11", "/us/531/0880-14", "/us/531/0880-03", "/us/531/0880-08", "/us/531/0880-12", "/us/531/0880-04", "/us/531/0880-07", "/us/531/0880-09", "/us/531/0880-13", "/us/531/0880-10", "/us/531/0880-06", "/us/531/0880-02" ] }, { "cite": "211 F.3d 399", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 1743172 ], "year": 1999, "pin_cites": [ { "page": "407" } ], "opinion_index": 0, "case_paths": [ "/f3d/211/0399-01" ] }, { "cite": "153 F.3d 516", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 11705808 ], "year": 1998, "pin_cites": [ { "page": "518", "parenthetical": "in order to avoid dismissal under Rule 12(b)(6), \" T was turned down for a job because of my race' is all a complaint has to say\"" } ], "opinion_index": 0, "case_paths": [ "/f3d/153/0516-01" ] }, { "cite": "534 U.S. 506", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9108377 ], "weight": 3, "year": 2002, "pin_cites": [ { "page": "514", "parenthetical": "finding complaint sufficient when plaintiff \"alleged that he had been terminated on account of his national origin in violation of Title VII and on account of his age in violation of the ADEA\"" }, { "page": "11", "parenthetical": "finding complaint sufficient when plaintiff \"alleged that he had been terminated on account of his national origin in violation of Title VII and on account of his age in violation of the ADEA\"" }, { "page": "999", "parenthetical": "finding complaint sufficient when plaintiff \"alleged that he had been terminated on account of his national origin in violation of Title VII and on account of his age in violation of the ADEA\"" } ], "opinion_index": 0, "case_paths": [ "/us/534/0506-01" ] }, { "cite": "35 F.3d 709", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 10527951 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "713", "parenthetical": "\"In order to survive a motion to dismiss, the plaintiff must specifically allege the events claimed to constitute intentional discrimination as well as circumstances giving rise to a plausible inference of racially discriminatory intent.\"" }, { "page": "714", "parenthetical": "affirming dismissal of racial discrimination claim where complaint lacked fact-specific allegations of racial animus and included factual allegations indicating \"race-neutral factors\" that may have led to the challenged conduct" } ], "opinion_index": 0, "case_paths": [ "/f3d/35/0709-01" ] }, { "cite": "897 F. Supp. 893", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 7841972 ], "year": 1995, "pin_cites": [ { "page": "896" } ], "opinion_index": 0, "case_paths": [ "/f-supp/897/0893-01" ] }, { "cite": "486 S.E.2d 733", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1997, "pin_cites": [ { "page": "734", "parenthetical": "quoting Sterling v. Se. Penn. Transp. Auth., 897 F. Supp. 893, 896 (E.D. Pa. 1995)" }, { "page": "735" } ], "opinion_index": 0 }, { "cite": "126 N.C. App. 826", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11713689 ], "weight": 2, "year": 1997, "pin_cites": [ { "page": "827", "parenthetical": "quoting Sterling v. Se. Penn. Transp. Auth., 897 F. Supp. 893, 896 (E.D. Pa. 1995)" }, { "page": "828" } ], "opinion_index": 0, "case_paths": [ "/nc-app/126/0826-01" ] }, { "cite": "293 F.3d 726", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 9417317 ], "year": 2002, "pin_cites": [ { "page": "730-31" } ], "opinion_index": 0, "case_paths": [ "/f3d/293/0726-01" ] }, { "cite": "117 S. Ct. 952", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1997, "opinion_index": 0 }, { "cite": "136 L. Ed. 2d 839", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1997, "opinion_index": 0 }, { "cite": "471 S.E.2d 342", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "347", "parenthetical": "holding that \u00a7 1983 action based on violation of substantive constitutional right - as opposed to procedural due process - not precluded by failure to exhaust state administrative remedies" } ], "opinion_index": 0 }, { "cite": "343 N.C. 426", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 798949 ], "year": 1996, "pin_cites": [ { "page": "434-45", "parenthetical": "holding that \u00a7 1983 action based on violation of substantive constitutional right - as opposed to procedural due process - not precluded by failure to exhaust state administrative remedies" } ], "opinion_index": 0, "case_paths": [ "/nc/343/0426-01" ] }, { "cite": "283 S.E.2d 507", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "510" } ], "opinion_index": 0 }, { "cite": "304 N.C. 332", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567608 ], "year": 1981, "pin_cites": [ { "page": "338" } ], "opinion_index": 0, "case_paths": [ "/nc/304/0332-01" ] }, { "cite": "117 S. Ct. 754", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1997, "opinion_index": 0 }, { "cite": "136 L. Ed. 2d 691", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1997, "opinion_index": 0 }, { "cite": "519 U.S. 1084", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11754787, 11754948, 11755241, 11754572, 11755319, 11754510, 11755376, 11755154, 11755477, 11755543, 11754647, 11754842, 11754716 ], "year": 1997, "opinion_index": 0, "case_paths": [ "/us/519/1084-05", "/us/519/1084-07", "/us/519/1084-09", "/us/519/1084-02", "/us/519/1084-10", "/us/519/1084-01", "/us/519/1084-11", "/us/519/1084-08", "/us/519/1084-12", "/us/519/1084-13", "/us/519/1084-03", "/us/519/1084-06", "/us/519/1084-04" ] }, { "cite": "87 F.3d 1491", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 573 ], "year": 1996, "pin_cites": [ { "page": "1509" } ], "opinion_index": 0, "case_paths": [ "/f3d/87/1491-01" ] }, { "cite": "599 S.E.2d 888", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "opinion_index": 0 }, { "cite": "358 N.C. 649", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2987357 ], "year": 2004, "opinion_index": 0, "case_paths": [ "/nc/358/0649-01" ] }, { "cite": "124 S. Ct. 103", "category": "reporters:federal", "reporter": "S. Ct.", "year": 2003, "opinion_index": 0 }, { "cite": "157 L. Ed. 2d 38", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2003, "opinion_index": 0 }, { "cite": "540 U.S. 820", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 8913248, 8913379, 8913702, 8913190, 8913800, 8913672, 8913448, 8913578, 8913517, 8913742, 8913846, 8913624, 8913307 ], "year": 2003, "opinion_index": 0, "case_paths": [ "/us/540/0820-02", "/us/540/0820-04", "/us/540/0820-10", "/us/540/0820-01", "/us/540/0820-12", "/us/540/0820-09", "/us/540/0820-05", "/us/540/0820-07", "/us/540/0820-06", "/us/540/0820-11", "/us/540/0820-13", "/us/540/0820-08", "/us/540/0820-03" ] }, { "cite": "576 S.E.2d 327", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "opinion_index": 0 }, { "cite": "356 N.C. 660", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511386 ], "year": 2003, "opinion_index": 0, "case_paths": [ "/nc/356/0660-01" ] }, { "cite": "563 S.E.2d 37", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "42", "parenthetical": "setting out student's right to hearing to challenge long-term suspension" } ], "opinion_index": 0 }, { "cite": "150 N.C. App. 86", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9079862 ], "year": 2002, "pin_cites": [ { "page": "92-93", "parenthetical": "setting out student's right to hearing to challenge long-term suspension" } ], "opinion_index": 0, "case_paths": [ "/nc-app/150/0086-01" ] }, { "cite": "476 S.E.2d 415", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1996, "pin_cites": [ { "page": "425" } ], "opinion_index": 0 }, { "cite": "124 N.C. App. 35", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11888444 ], "year": 1996, "pin_cites": [ { "page": "48" } ], "opinion_index": 0, "case_paths": [ "/nc-app/124/0035-01" ] }, { "cite": "610 S.E.2d 360", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2005, "pin_cites": [ { "page": "361" } ], "opinion_index": 0 }, { "cite": "359 N.C. 400", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3799435 ], "year": 2005, "pin_cites": [ { "page": "402" } ], "opinion_index": 0, "case_paths": [ "/nc/359/0400-01" ] }, { "cite": "301 N.C. 94", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562510, 8562484, 8562391, 8562457, 8562431 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc/301/0094-05", "/nc/301/0094-04", "/nc/301/0094-01", "/nc/301/0094-03", "/nc/301/0094-02" ] }, { "cite": "265 S.E.2d 890", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1980, "pin_cites": [ { "page": "910-11" }, { "page": "911" } ], "opinion_index": 0 }, { "cite": "46 N.C. App. 350", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551011 ], "year": 1980, "pin_cites": [ { "page": "382" } ], "opinion_index": 0, "case_paths": [ "/nc-app/46/0350-01" ] }, { "cite": "419 U.S. 565", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6177671 ], "weight": 9, "year": 1975, "pin_cites": [ { "page": "581-84" }, { "page": "738-40" }, { "page": "739-41" }, { "page": "581" }, { "page": "739" }, { "page": "740" }, { "page": "582" }, { "page": "739" }, { "page": "740" } ], "opinion_index": 0, "case_paths": [ "/us/419/0565-01" ] }, { "cite": "171 N.C. App. 649", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8438969 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "657" }, { "page": "657" } ], "opinion_index": 0, "case_paths": [ "/nc-app/171/0649-01" ] }, { "cite": "113 S. Ct. 493", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1992, "opinion_index": 0 }, { "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", "year": 1992, "pin_cites": [ { "page": "289" } ], "opinion_index": 0 }, { "cite": "330 N.C. 761", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2511641 ], "year": 1992, "pin_cites": [ { "page": "782" } ], "opinion_index": 0, "case_paths": [ "/nc/330/0761-01" ] }, { "cite": "473 U.S. 159", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6197246 ], "weight": 3, "year": 1985, "pin_cites": [ { "page": "165" }, { "page": "121" }, { "page": "3105" } ], "opinion_index": 0, "case_paths": [ "/us/473/0159-01" ] }, { "cite": "481 S.E.2d 14", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1997, "pin_cites": [ { "page": "21", "parenthetical": "\"[OJfficialcapacity suits 'generally represent only another way of pleading an action against an entity of which an officer is an agent.' \" (quoting Kentucky v. Graham, 473 U.S. 159, 165, 87 L. Ed. 2d 114, 121, 105 S. Ct. 3099, 3105 (1985))" }, { "page": "24" } ], "opinion_index": 0 }, { "cite": "345 N.C. 356", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 53966 ], "weight": 2, "year": 1997, "pin_cites": [ { "page": "367", "parenthetical": "\"[OJfficialcapacity suits 'generally represent only another way of pleading an action against an entity of which an officer is an agent.' \" (quoting Kentucky v. Graham, 473 U.S. 159, 165, 87 L. Ed. 2d 114, 121, 105 S. Ct. 3099, 3105 (1985))" }, { "page": "371" } ], "opinion_index": 0, "case_paths": [ "/nc/345/0356-01" ] }, { "cite": "590 S.E.2d 412", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "420" } ], "opinion_index": 0 }, { "cite": "162 N.C. App. 199", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8916003 ], "year": 2004, "pin_cites": [ { "page": "209" } ], "opinion_index": 0, "case_paths": [ "/nc-app/162/0199-01" ] }, { "cite": "507 U.S. 163", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6224800 ], "weight": 3, "year": 1993, "pin_cites": [ { "page": "168" }, { "page": "524" }, { "page": "1163" } ], "opinion_index": 0, "case_paths": [ "/us/507/0163-01" ] }, { "cite": "475 U.S. 469", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6204596 ], "weight": 3, "year": 1986, "pin_cites": [ { "page": "480", "parenthetical": "emphasis omitted" }, { "page": "463", "parenthetical": "emphasis omitted" }, { "page": "1298", "parenthetical": "emphasis omitted" } ], "opinion_index": 0, "case_paths": [ "/us/475/0469-01" ] }, { "cite": "294 F. Supp. 2d 784", "category": "reporters:federal", "reporter": "F. Supp. 2d", "case_ids": [ 9296919 ], "weight": 2, "year": 2003, "pin_cites": [ { "page": "794" }, { "page": "794", "parenthetical": "dismissing supervisory liability claims were plaintiff failed to allege actual or constructive knowledge although plaintiff alleged that defendants failed to adequately supervise their subordinates" } ], "opinion_index": 0, "case_paths": [ "/f-supp-2d/294/0784-01" ] }, { "cite": "2007 WL 2712924", "category": "reporters:specialty_west", "reporter": "WL", "year": 2007, "pin_cites": [ { "page": "*12" } ], "opinion_index": 0 }, { "cite": "896 F.2d 848", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10536120 ], "weight": 4, "year": 1990, "pin_cites": [ { "page": "854" }, { "parenthetical": "internal quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/f2d/896/0848-01" ] }, { "cite": "115 S. Ct. 67", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1994, "pin_cites": [ { "page": "68" } ], "opinion_index": 0 }, { "cite": "130 L. Ed. 2d 24", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1994, "opinion_index": 0 }, { "cite": "513 U.S. 813", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1333312, 1334210, 1331206, 1332488, 1333640, 1333322, 1334316, 1333772, 1332336, 1332112, 1332787, 1330487, 1335897, 1334527 ], "year": 1994, "pin_cites": [ { "page": "814" } ], "opinion_index": 0, "case_paths": [ "/us/513/0813-06", "/us/513/0813-03", "/us/513/0813-14", "/us/513/0813-07", "/us/513/0813-09", "/us/513/0813-13", "/us/513/0813-10", "/us/513/0813-11", "/us/513/0813-02", "/us/513/0813-04", "/us/513/0813-05", "/us/513/0813-12", "/us/513/0813-01", "/us/513/0813-08" ] }, { "cite": "13 F.3d 791", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 1834588 ], "pin_cites": [ { "page": "798" } ], "opinion_index": 0, "case_paths": [ "/f3d/13/0791-01" ] }, { "cite": "361 N.C. 265", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3738344 ], "year": 2007, "pin_cites": [ { "page": "271", "parenthetical": "holding that court \"may consider matters outside the pleadings\" when reviewing a Rule 12(b)(1) motion" } ], "opinion_index": 0, "case_paths": [ "/nc/361/0265-01" ] }, { "cite": "494 S.E.2d 406", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "opinion_index": 0 }, { "cite": "347 N.C. 396", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 551335, 551114, 551379, 551254, 551354 ], "year": 1997, "opinion_index": 0, "case_paths": [ "/nc/347/0396-05", "/nc/347/0396-02", "/nc/347/0396-01", "/nc/347/0396-04", "/nc/347/0396-03" ] }, { "cite": "488 S.E.2d 269", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "273" } ], "opinion_index": 0 }, { "cite": "127 N.C. App. 79", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11792232 ], "year": 1997, "pin_cites": [ { "page": "86" } ], "opinion_index": 0, "case_paths": [ "/nc-app/127/0079-01" ] }, { "cite": "260 S.E.2d 611", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1979, "pin_cites": [ { "page": "615" } ], "opinion_index": 0 }, { "cite": "298 N.C. 715", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573981 ], "year": 1979, "pin_cites": [ { "page": "721" } ], "opinion_index": 0, "case_paths": [ "/nc/298/0715-01" ] }, { "cite": "595 S.E.2d 773", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 2004, "pin_cites": [ { "page": "775", "parenthetical": "quoting Presnell v. Pell, 298 N.C. 715, 721, 260 S.E.2d 611, 615 (1979)" }, { "page": "777" }, { "page": "777", "parenthetical": "holding that factual allegations justifying avoidance of administrative process must be pled in complaint" } ], "opinion_index": 0 }, { "cite": "164 N.C. App. 366", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8897426 ], "weight": 2, "year": 2004, "pin_cites": [ { "page": "369", "parenthetical": "quoting Presnell v. Pell, 298 N.C. 715, 721, 260 S.E.2d 611, 615 (1979)" }, { "page": "372" } ], "opinion_index": 0, "case_paths": [ "/nc-app/164/0366-01" ] }, { "cite": "579 S.E.2d 576", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "opinion_index": 0 }, { "cite": "357 N.C. 66", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 491431, 491432, 491475, 491452, 491743 ], "year": 2003, "opinion_index": 0, "case_paths": [ "/nc/357/0066-02", "/nc/357/0066-04", "/nc/357/0066-05", "/nc/357/0066-03", "/nc/357/0066-01" ] }, { "cite": "574 S.E.2d 76", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 2002, "pin_cites": [ { "page": "83" }, { "page": "83" }, { "page": "86" }, { "page": "87", "parenthetical": "holding that defendants were not entitled to dismissal of claims under Rule 12(b) based on qualified immunity" } ], "opinion_index": 0 }, { "cite": "155 N.C. App. 462", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9250748 ], "weight": 4, "year": 2002, "pin_cites": [ { "page": "468" }, { "page": "468" }, { "page": "473-74" }, { "page": "474" } ], "opinion_index": 0, "case_paths": [ "/nc-app/155/0462-01" ] }, { "cite": "174 N.C. App. 266", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8351783 ], "weight": 3, "year": 2005, "pin_cites": [ { "page": "274", "parenthetical": "quoting Toomer v. Garrett, 155 N.C. App. 462, 468, 574 S.E.2d 76, 83 (2002), appeal dismissed and disc. review denied, 357 N.C. 66, 579 S.E.2d 576 (2003)" }, { "page": "272" }, { "page": "272" } ], "opinion_index": 0, "case_paths": [ "/nc-app/174/0266-01" ] }, { "cite": "596 S.E.2d 361", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2004, "pin_cites": [ { "page": "363" }, { "page": "364" } ], "opinion_index": 0 }, { "cite": "164 N.C. App. 415", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8898010 ], "weight": 2, "year": 2004, "pin_cites": [ { "page": "417" }, { "page": "419" } ], "opinion_index": 0, "case_paths": [ "/nc-app/164/0415-01" ] }, { "cite": "181 N.C. App. 107", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8372452 ], "year": 2007, "pin_cites": [ { "page": "110-11" } ], "opinion_index": 0, "case_paths": [ "/nc-app/181/0107-01" ] }, { "cite": "233 S.E.2d 654", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "page": "655", "parenthetical": "dismissing appeal when record not timely filed and no extension sought" } ], "opinion_index": 0 }, { "cite": "32 N.C. App. 782", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8554062 ], "year": 1977, "pin_cites": [ { "page": "783", "parenthetical": "dismissing appeal when record not timely filed and no extension sought" } ], "opinion_index": 0, "case_paths": [ "/nc-app/32/0782-01" ] }, { "cite": "536 S.E.2d 848", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "850", "parenthetical": "dismissing appeal despite class counsel's filing record seven days late and filing motion for extension of time as soon as counsel realized record was untimely" } ], "opinion_index": 0 }, { "cite": "140 N.C. App. 337", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12126898 ], "year": 2000, "pin_cites": [ { "page": "340", "parenthetical": "dismissing appeal despite class counsel's filing record seven days late and filing motion for extension of time as soon as counsel realized record was untimely" } ], "opinion_index": 0, "case_paths": [ "/nc-app/140/0337-01" ] }, { "cite": "550 S.E.2d 141", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "141", "parenthetical": "ordering pursuant to Rule 25 that record on appeal be deemed timely filed for good cause shown" } ], "opinion_index": 0 }, { "cite": "353 N.C. 695", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135738 ], "year": 2001, "pin_cites": [ { "page": "696", "parenthetical": "ordering pursuant to Rule 25 that record on appeal be deemed timely filed for good cause shown" } ], "opinion_index": 0, "case_paths": [ "/nc/353/0695-01" ] }, { "cite": "187 N.C. App. 567", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8375310 ], "year": 2007, "pin_cites": [ { "page": "570", "parenthetical": "declining to dismiss appeal for \"technical\" violation of Rule 12 where appellant substantially complied with Rule" } ], "opinion_index": 0, "case_paths": [ "/nc-app/187/0567-01" ] }, { "cite": "185 N.C. App. 148", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8208874 ], "year": 2007, "pin_cites": [ { "page": "153", "parenthetical": "affirming trial court's dismissal of appeal for failure to timely file record on appeal where appellant \"presented no persuasive basis for setting aside the trial court's dismissal of its appeal\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/185/0148-01" ] }, { "cite": "540 S.E.2d 313", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "322" } ], "opinion_index": 0 }, { "cite": "353 N.C. 142", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135912 ], "year": 2000, "pin_cites": [ { "page": "156" } ], "opinion_index": 0, "case_paths": [ "/nc/353/0142-01" ] }, { "cite": "287 N.C. 671", "category": "reporters:state", "reporter": "N.C.", "year": 1975, "pin_cites": [ { "page": "680" } ], "opinion_index": 0 }, { "cite": "362 N.C. 191", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4149183 ], "weight": 5, "year": 2008, "pin_cites": [ { "page": "198" }, { "page": "199" }, { "page": "199" } ], "opinion_index": 0, "case_paths": [ "/nc/362/0191-01" ] }, { "cite": "361 N.C. 309", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3746530 ], "year": 2007, "pin_cites": [ { "page": "311", "parenthetical": "\"[E]very violation of the rules does not require dismissal of the appeal or the issue, although some other sanction may be appropriate, pursuant to Rule 25(b) or Rule 34 of the Rules of Appellate Procedure.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/361/0309-01" ] }, { "cite": "538 S.E.2d 232", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "234" } ], "opinion_index": 0 }, { "cite": "140 N.C. App. 762", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12135268 ], "year": 2000, "pin_cites": [ { "page": "764" } ], "opinion_index": 0, "case_paths": [ "/nc-app/140/0762-01" ] }, { "cite": "175 N.C. App. 136", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8350641 ], "weight": 5, "year": 2005, "pin_cites": [ { "page": "143" }, { "page": "143" }, { "page": "143" }, { "page": "143" } ], "opinion_index": 0, "case_paths": [ "/nc-app/175/0136-01" ] }, { "cite": "436 U.S. 658", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1490618 ], "weight": 9, "pin_cites": [ { "page": "694" }, { "page": "638" }, { "page": "2037" }, { "page": "694" }, { "page": "638" }, { "page": "2037" }, { "page": "638" }, { "page": "2037-38" } ], "opinion_index": 0, "case_paths": [ "/us/436/0658-01" ] }, { "cite": "42 U.S.C. \u00a7 1983", "category": "laws:leg_statute", "reporter": "U.S.C.", "weight": 3, "pin_cites": [ { "page": "(3)" } ], "opinion_index": 0 }, { "cite": "659 S.E.2d 439", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12640724, 12640725 ], "year": 2008, "opinion_index": 1, "case_paths": [ "/se2d/659/0439-01", "/se2d/659/0439-02" ] }, { "cite": "362 N.C. 234", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 12640721, 12640722, 12640725, 12640727, 12640728, 12640730 ], "year": 2008, "opinion_index": 1, "case_paths": [ "/se2d/659/0437-01", "/se2d/659/0438-01", "/se2d/659/0439-02", "/se2d/659/0440-02", "/se2d/659/0440-03", "/se2d/659/0441-02" ] }, { "cite": "648 S.E.2d 923", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639161 ], "year": 2007, "pin_cites": [ { "page": "926", "parenthetical": "quoting Corum v. University of North Carolina, 330 N.C. 761, 782, 413 S.E.2d 276, 289 (1992)" } ], "opinion_index": 1, "case_paths": [ "/se2d/648/0923-01" ] }, { "cite": "358 N.C. 543", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 12631460, 12631464, 12631499, 12631468, 12631471, 12631472, 12631474 ], "year": 2004, "opinion_index": 1, "case_paths": [ "/se2d/599/0040-01", "/se2d/599/0042-03", "/se2d/599/0907-01", "/se2d/599/0043-01", "/se2d/599/0045-01", "/se2d/599/0046-01", "/se2d/599/0048-02" ] }, { "cite": "519 U.S. 1112", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11775264, 11775708, 11775654, 11775399, 11775499, 11775307, 11775602, 11775219, 11775543, 11775448, 11775353, 11775899, 11775964, 11775774 ], "year": 1997, "opinion_index": 1, "case_paths": [ "/us/519/1112-02", "/us/519/1112-11", "/us/519/1112-10", "/us/519/1112-05", "/us/519/1112-07", "/us/519/1112-03", "/us/519/1112-09", "/us/519/1112-01", "/us/519/1112-08", "/us/519/1112-06", "/us/519/1112-04", "/us/519/1112-13", "/us/519/1112-14", "/us/519/1112-12" ] }, { "cite": "615 S.E.2d 408", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633276 ], "year": 2005, "pin_cites": [ { "page": "415", "parenthetical": "citing In re Roberts, 150 N.C. App. at 92-93, 563 S.E.2d at 42" } ], "opinion_index": 1, "case_paths": [ "/se2d/615/0408-01" ] }, { "cite": "620 S.E.2d 873", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12634254 ], "weight": 4, "year": 2005, "pin_cites": [ { "page": "880", "parenthetical": "quoting Veney v. Wyche, 293 F.3d 726, 730 (4th Cir. 2002)" }, { "page": "880" }, { "page": "880" }, { "page": "880" } ], "opinion_index": 1, "case_paths": [ "/se2d/620/0873-01" ] }, { "cite": "185 N.C. App. 651", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8212041 ], "year": 2007, "pin_cites": [ { "page": "655", "parenthetical": "quoting Corum v. University of North Carolina, 330 N.C. 761, 782, 413 S.E.2d 276, 289 (1992)" } ], "opinion_index": 1, "case_paths": [ "/nc-app/185/0651-01" ] }, { "cite": "120 S.E. 41", "category": "reporters:state_regional", "reporter": "S.E.", "weight": 3, "year": 1923, "pin_cites": [ { "page": "44" }, { "page": "44" }, { "page": "44" } ], "opinion_index": 1 }, { "cite": "186 N.C. 452", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8653855 ], "weight": 2, "year": 1923, "pin_cites": [ { "page": "457-58" }, { "page": "458" } ], "opinion_index": 1, "case_paths": [ "/nc/186/0452-01" ] }, { "cite": "346 F. Supp. 202", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 3530737 ], "year": 1972, "pin_cites": [ { "page": "209" } ], "opinion_index": 1, "case_paths": [ "/f-supp/346/0202-01" ] }, { "cite": "42 U.S.C. \u00a7 1983.1", "category": "laws:leg_statute", "reporter": "U.S.C.", "opinion_index": 1 }, { "cite": "597 S.E.2d 673", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "opinion_index": 1 }, { "cite": "357 N.C. 567", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 491579 ], "year": 2003, "opinion_index": 1, "case_paths": [ "/nc/357/0567-01" ] }, { "cite": "580 S.E.2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "4" } ], "opinion_index": 1 }, { "cite": "157 N.C. App. 396", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9187002 ], "year": 2003, "pin_cites": [ { "page": "400" } ], "opinion_index": 1, "case_paths": [ "/nc-app/157/0396-01" ] }, { "cite": "599 S.E.2d 49", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "opinion_index": 1 }, { "cite": "593 S.E.2d 595", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "598" } ], "opinion_index": 1 }, { "cite": "162 N.C. App. 477", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8918134 ], "pin_cites": [ { "page": "480" } ], "opinion_index": 1, "case_paths": [ "/nc-app/162/0477-01" ] }, { "cite": "293 F.3d 726", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 9417317 ], "year": 2002, "pin_cites": [ { "page": "730" } ], "opinion_index": 1, "case_paths": [ "/f3d/293/0726-01" ] }, { "cite": "136 L. Ed. 2d 839", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1997, "opinion_index": 1 }, { "cite": "471 S.E.2d 342", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1996, "pin_cites": [ { "page": "346", "parenthetical": "internal citation and quotation omitted" }, { "page": "346" } ], "opinion_index": 1 }, { "cite": "343 N.C. 426", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 798949 ], "year": 1996, "pin_cites": [ { "page": "432", "parenthetical": "internal citation and quotation omitted" } ], "opinion_index": 1, "case_paths": [ "/nc/343/0426-01" ] }, { "cite": "157 L. Ed. 2d 38", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2003, "opinion_index": 1 }, { "cite": "540 U.S. 820", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 8913248, 8913379, 8913702, 8913190, 8913800, 8913672, 8913448, 8913578, 8913517, 8913742, 8913846, 8913624, 8913307 ], "year": 2003, "opinion_index": 1, "case_paths": [ "/us/540/0820-02", "/us/540/0820-04", "/us/540/0820-10", "/us/540/0820-01", "/us/540/0820-12", "/us/540/0820-09", "/us/540/0820-05", "/us/540/0820-07", "/us/540/0820-06", "/us/540/0820-11", "/us/540/0820-13", "/us/540/0820-08", "/us/540/0820-03" ] }, { "cite": "576 S.E.2d 327", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "opinion_index": 1 }, { "cite": "356 N.C. 660", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511386 ], "year": 2003, "opinion_index": 1, "case_paths": [ "/nc/356/0660-01" ] }, { "cite": "563 S.E.2d 37", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 2002, "pin_cites": [ { "page": "41", "parenthetical": "citing Goss v. Lopez, 419 U.S. 565, 576, 42 L. Ed. 2d 725, 735-36 (1975)" }, { "page": "42" }, { "page": "42" } ], "opinion_index": 1 }, { "cite": "150 N.C. App. 86", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9079862 ], "weight": 4, "year": 2002, "pin_cites": [ { "page": "91-92", "parenthetical": "citing Goss v. Lopez, 419 U.S. 565, 576, 42 L. Ed. 2d 725, 735-36 (1975)" }, { "page": "92-93" }, { "page": "93" }, { "page": "92-93" } ], "opinion_index": 1, "case_paths": [ "/nc-app/150/0086-01" ] }, { "cite": "419 U.S. 565", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6177671 ], "weight": 6, "year": 1975, "pin_cites": [ { "page": "576" }, { "page": "735-36" }, { "page": "579" }, { "page": "737" }, { "page": "584" }, { "page": "740" } ], "opinion_index": 1, "case_paths": [ "/us/419/0565-01" ] }, { "cite": "171 N.C. App. 649", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8438969 ], "year": 2005, "pin_cites": [ { "page": "657", "parenthetical": "citing In re Roberts, 150 N.C. App. at 92-93, 563 S.E.2d at 42" } ], "opinion_index": 1, "case_paths": [ "/nc-app/171/0649-01" ] }, { "cite": "413 S.E.2d 276", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "289" } ], "opinion_index": 1 }, { "cite": "330 N.C. 761", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2511641 ], "year": 1992, "pin_cites": [ { "page": "782" } ], "opinion_index": 1, "case_paths": [ "/nc/330/0761-01" ] }, { "cite": "174 N.C. App. 266", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8351783 ], "weight": 4, "year": 2005, "pin_cites": [ { "page": "274", "parenthetical": "quoting Veney v. Wyche, 293 F.3d 726, 730 (4th Cir. 2002)" }, { "page": "274" }, { "page": "274" }, { "page": "274" } ], "opinion_index": 1, "case_paths": [ "/nc-app/174/0266-01" ] }, { "cite": "42 U.S.C. \u00a7 1983", "category": "laws:leg_statute", "reporter": "U.S.C.", "weight": 7, "pin_cites": [ { "parenthetical": "emphasis supplied" } ], "opinion_index": 1 } ], "analysis": { "cardinality": 2511, "char_count": 109927, "ocr_confidence": 0.743, "pagerank": { "raw": 6.375555845453264e-08, "percentile": 0.3904789429808456 }, "sha256": "576c4c19776dc5d201918f3989774bc4ac65aa98baa6f4a251c95caf29c38c7f", "simhash": "1:0be8d52a252e8e50", "word_count": 17254 }, "last_updated": "2023-07-14T16:30:29.332614+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge HUNTER concurs.", "Judge TYSON concurs in part and dissents in part in a separate opinion." ], "parties": [ "ANGELL COPPER, by his mother and guardian ad litem, Sherry Copper; DESMOND JOHNSON, by his father and guardian ad litem, Wilmer Johnson; ERIC WARREN and DION WARREN, by their mother and guardian ad litem, Deann Warren; JOSHUA THORPE, by his mother and guardian ad litem, Treco Thorpe; TODD DOUGLAS, DECEASED, BY HIS MOTHER AND ADMINISTRATRIX OF HIS ESTATE, SHERYL SMITH; DEANTONIO RHODES, by his mother and guardian ad litem, Linda Rhodes; JAZMYN JENKINS; and GINA SOLARI; as individuals and as representatives of THE CLASS OF SIMILARLY SITUATED DURHAM PUBLIC SCHOOL STUDENTS, PLAINTIFFS v. ANN T. DENLINGER, individually and as Superintendent of Durham Public Schools; THE DURHAM PUBLIC SCHOOL BOARD OF EDUCATION; GAIL HEATH, individually and as Chair of the Durham Public School Board of Education; HEIDI CARTER, STEVE MARTIN and STEVE SCHEWEL, individually and as members of the Durham Public School Board of Education; LARRY MCDONALD, individually and as former Principal of Southern High School; RICHARD WEBBER, individually and as Principal of C.E. Jordan High School; RODRIQUEZ TEAL, individually and as Principal of Southern High School; WORTH HILL, Durham County Sheriff; and R.A. SIPPLE and JOSEPH COSTA, individually, as agents and employees of the Durham County Sheriff, as agents of the Superintendent of Durham Public Schools, and as agents of the Durham Public School Board of Education, Defendants" ], "opinions": [ { "text": "GEER, Judge.\nPlaintiffs \u2014 current or former students in the Durham Public School System (\u201cDPS\u201d) \u2014 brought this action essentially as a wholesale challenge to the disciplinary process in the Durham Public Schools. The lawsuit was dismissed in its entirety under Rule 12(b)(6) of the North Carolina Rules of Civil Procedure for failure to state a claim for relief and under Rule 12(b)(1) for lack of subject matter jurisdiction.\nWe must conclude, as the trial court did, that many of plaintiffs\u2019 claims must be dismissed for lack of sufficient allegations even though the complaint contains 575 paragraphs. Apparently, in an eagerness to illuminate alleged systemic problems in the Durham schools, plaintiffs overlooked the need to allege a claim for relief on behalf of each individual plaintiff against each individual defendant. By relying substantially on broad assertions regarding DPS discipline and \u201cdefendants\u201d \u2014 without distinguishing among the defendants\u2014 plaintiffs omitted to include in their complaint certain key allegations necessary to survive a motion to dismiss.\nThe concept of \u201cnotice pleading\u201d does not excuse a plaintiff from stating the fundamental elements of his or her claim against each defendant. The regrettable length of this opinion is the result of the Court\u2019s need to parse through the complaint as to each plaintiff, for each claim for relief pursued on appeal, while considering the separate rules of liability pertinent to each type of claim for defendant Denlinger (the former superintendent of schools) and the Durham Public School Board of Education (\u201cthe Board\u201d), the sole defendants at issue on appeal.\nAfter a paragraph-by-paragraph review of the complaint as it relates to each plaintiff, each remaining defendant, and each claim, we are compelled to affirm the trial court\u2019s dismissal of plaintiffs\u2019 claims for violation of their procedural due process rights with the exception of the claim brought on behalf of Todd Douglas (now deceased). We also affirm the dismissal of plaintiffs\u2019 equal protection claims. On the other hand, with respect to plaintiffs\u2019 constitutional challenge to the Board\u2019s policy relating to gangs and gang-related activity, we hold, based on the allegations in the complaint and the policy itself, that plaintiffs have sufficiently stated a claim for relief and, therefore, reverse the order below as to that claim. The arguments asserted by the Board in support of the policy are more appropriately considered at the summary judgment stage. We, therefore, remand for further proceedings regarding the procedural due process claims relating to Todd Douglas and the Board\u2019s gang policy.\nFacts and Procedural History\nOn 24 March 2006, plaintiffs filed suit against the Board; certain individual Board members; Denlinger; current and former principals of Southern High School, Rodriquez Teal and Larry McDonald; the current principal of C.E. Jordan High School, Richard Webber; Durham County Sheriff Worth Hill; and two deputy sheriffs working as school resource officers, R.A. Sipple and Joseph Costa. Plaintiffs sought to proceed on behalf of a class of those minority students who had been unlawfully suspended or expelled since 1 September 2003. No class was, however, ever certified.\nThe complaint alleged that because of defendants\u2019 conduct in connection with short-term and long-term suspensions and the labeling of students as gang members, plaintiffs: (1) were outlawed and exiled without due process of law in violation of the North Carolina Constitution art. I, \u00a7 19; (2) were denied public education without due process of law in violation of the Due Process Clause of the United States Constitution and North Carolina Constitution art. I, \u00a7\u00a7 15 and 19, and art. IX, \u00a7 2; (3) were unlawfully arrested in violation of the Fourth Amendment to the United States Constitution; (4) were denied equal educational opportunity and equal rights in violation of the Fourteenth Amendment to the United States Constitution and North Carolina Constitution art. I, \u00a7\u00a7 1, 15, and 19, and art. IX, \u00a7 2; (5) were victims of a conspiracy to interfere with the exercise and enjoyment of their constitutional right to equal protection in violation of 42 U.S.C. \u00a7 1983(3) and N.C. Gen. Stat. \u00a7 99D-1 (2007); and (6) were victims of defamation per se. Plaintiffs also sought a declaratory judgment that the Board\u2019s policy 4301.10 (\u201cProhibition of Gangs and Gang Activities\u201d) is unconstitutionally vague and does not comport with the requirements of procedural due process.\nEach of the defendants moved to dismiss the complaint. In an order entered 12 July 2006, the trial court first dismissed the claims against the Sheriffs Department defendants, including Sheriff Hill and the school resource officers, Sipple and Costa. Subsequently, in an order entered 5 October 2006, the trial court granted the school defendants\u2019 motion to dismiss on 19 separate legal grounds, including insufficient factual allegations for certain claims, the existence of adequate alternative state remedies (precluding state constitutional claims), failure to exhaust administrative remedies, and immunity. The trial court also dismissed the claim for relief regarding the Board\u2019s gang policy, concluding that the policy \u201cdefines a violation of the policy with sufficient definiteness that a student could understand what conduct was prohibited and it establishes standards to permit enforcement in a non-arbitrary, nondiscriminatory manner.\u201d\nPlaintiffs timely appealed from the 5 October 2006 order only and thus have abandoned their claims against Hill, Sipple, and Costa. In addition, plaintiffs state in their brief: \u201cWith the exception of Defendant Denlinger, Plaintiffs\u2019 claims against individual school defendants are not brought forward on appeal.\u201d Thus, plaintiffs have pursued only their claims against Denlinger and the Board. Plaintiffs have also limited the claims for relief argued on appeal, stating: \u201cThe causes of action which are the subject of this appeal are claims under 42 U.S.C. \u00a7 1983 and the North Carolina State Constitution for denial of Plaintiffs\u2019 rights of due process and equal protection and Plaintiffs\u2019 action for judgment declaring the DPS Gang Policy void and unenforceable as unconstitutionally vague on its face.\u201d\nPlaintiffs have further narrowed the scope of their appeal by failing to bring forward on appeal the claims of several of the individual plaintiffs. Plaintiffs\u2019 brief states that Gina Solari has not appealed the dismissal of her claims. In addition, although plaintiffs\u2019 brief states the appeal has been brought on behalf of Deantonio Rhodes and Dion Warren, the trial court concluded that those two plaintiffs, as well as Gina Solari, \u201chave failed to state any claims against any school defendants, and those plaintiffs\u2019 claims are therefore DISMISSED.\u201d Plaintiffs failed to assign error to that ruling and failed to make any specific argument in their brief as to why the court erred in concluding Rhodes and Dion Warren had not asserted a claim against Denlinger or the Board.\nThus, the only remaining claims on appeal are those asserted on behalf of Angel\u00ed Copper, Desmond Johnson, Eric Warren, Joshua Thorpe, Todd Douglas (deceased), and Jazmyn Jenkins against Denlinger and the Board for violation of procedural due process and equal protection rights under the state and federal constitutions. Plaintiffs\u2019 claim as to the constitutionality of the gang policy has also been brought forward on appeal.\nMotion to Dismiss\nDefendants Denlinger and the Board have jointly moved to dismiss plaintiffs\u2019 appeal based on violations of the North Carolina Rules of Appellate Procedure. In their motion, defendants primarily argue that dismissal is appropriate based on plaintiffs\u2019 failure to file the record on appeal with this Court within the period prescribed by Rule 12. Plaintiffs contend that they timely filed the record, and, in any event, any error was a mere technical violation not warranting sanctions. We disagree with both of plaintiffs\u2019 contentions.\nA. Timeliness of Filing of Record on Appeal\nIn White v. Carver, 175 N.C. App. 136, 622 S.E.2d 718 (2005), this Court outlined the procedures required by the appellate rules for proper and timely settlement and filing of the record on appeal:\nRule 12(a) of the Rules requires an appellant to file the Record on Appeal within fifteen days of settlement of the record. N.C.R. App. P. 12(a) (2005). The appellant must serve a proposed record on appeal upon the appellee who, within thirty days, may submit amendments, objections, or a proposed alternative record to the appellant. N.C.R. App. P. 11(c). Where the parties agree to the proposed record offered by the appellant or the amendments, objections, or proposed alternative record offered by the appellee, the agreed-upon record constitutes the settled Record on Appeal. Id. However, should the parties disagree as to the inclusion of certain materials, the appellant must either (i) file the disputed items concurrent with the proposed record within fifteen days, or (ii) file for judicial settlement of the record within ten days of expiration of the period for serving amendments, objections, and alternative proposed records. See id.) N.C.R. App. P. 12(a).\nId. at 142-43, 622 S.E.2d at 722. To determine whether plaintiffs complied with Rule 12(a) in this case, we must first identify the date upon which the record was settled.\nRule 11(b) provides that if the parties have not settled the record on appeal by agreement, the appellant must serve a proposed record on appeal within 35 days after the filing of the notice of appeal if, as here, no transcript was ordered. N.C.R. App. P. 11(b). In this case, plaintiffs timely served their proposed record on appeal on those defendants who are parties to this appeal. Defendants then timely served amendments and objections to that proposed record on 18 December 2006 in accordance with Rule 11(c).\nWith respect to that stage, Rule 11(c) specifies that \u201cthe record on appeal shall consist of each item that is either among those items required by Rule 9(a) to be in the record on appeal or that is requested by any party to the appeal and agreed upon for inclusion by all other parties to the appeal.\u201d N.C.R. App. P. 11(c). If, however, \u201cthe parties disagree as to the inclusion of certain materials, the appellant must either (i) file the disputed items concurrent with the proposed record within fifteen days, or (ii) file for judicial settlement of the record within ten days of expiration of the period for serving amendments, objections, and alternative proposed records.\u201d White, 175 N.C. App. at 143, 622 S.E.2d at 722.\nIn this case, defendants had until 27 December 2006 to serve any amendments, objections, or an alternative proposed record, taking into account service by mail and holidays. Plaintiffs, therefore, had until 8 January 2007 to request judicial settlement. Plaintiffs did not request judicial settlement, but rather reached an agreement with the other parties regarding the contents of the record.\nThe version of Rule 11(c) applicable to this appeal specified \u201cthat nothing herein shall prevent settlement of the record on appeal by agreement of the parties at any time within the times herein limited for settling the record by judicial order.\u201d N.C.R. App. P. 11(c) (effective for appeals prior to 1 March 2007) (emphasis added). As a result, because no judicial settlement was requested and no agreement was reached by 8 January 2007, \u201cthe proposed record on appeal, in conformity with defendants\u2019 objections and amendments, became the record on appeal\u201d by that date. Kellihan v. Thigpen, 140 N.C. App. 762, 764, 538 S.E.2d 232, 234 (2000). See also White, 175 N.C. App. at 143, 622 S.E.2d at 722-23 (holding that when appellant failed to file for judicial settlement after receiving amendments and objections, record on appeal was settled by \u201coperation of Rules 11 and 12\u201d even though parties continued to discuss contents of record and subsequently reached agreement).\nRule 12(a) states that \u201c[w]ithin 15 days after the record on appeal has been settled by any of the procedures provided in Rule 11 or Rule 18, the appellant shall file the record on appeal with the clerk of the court to which appeal is taken.\u201d N.C.R. App. P. 12(a). Thus, plaintiffs had until 23 January 2007 to file the record on appeal with this Court in order to perfect their appeal from the trial court\u2019s order dismissing their claims. Plaintiffs did not, however, file the record with this Court until 14 February 2007 \u2014 a date 49 days after the deadline for filing objections to the proposed record on appeal and a date \u201cwell outside the time period prescribed by the Rules.\u201d White, 175 N.C. App. at 143, 622 S.E.2d at 723 (holding that 50-day period between appellee\u2019s serving amendments and objections to appellant\u2019s proposed record on appeal and appellant\u2019s filing the record on appeal with appellate court warranted dismissal under Rules 11 and 12). Accordingly, we are compelled to conclude that plaintiffs failed to timely file the record on appeal with this Court.\nB. Appropriate Sanction\nAlthough we have determined that plaintiffs violated Rule 12, as well as other appellate rules, our Supreme Court has emphasized that dismissal of an appeal for violations of the appellate rules is not automatic. See State v. Hart, 361 N.C. 309, 311, 644 S.E.2d 201, 202 (2007) (\u201c[E]very violation of the rules does not require dismissal of the appeal or the issue, although some other sanction may be appropriate, pursuant to Rule 25(b) or Rule 34 of the Rules of Appellate Procedure.\u201d). More recently, the Supreme Court set out in detail the analytical framework applicable in considering whether to sanction a party for appellate rules violations. See Dogwood Dev. & Mgmt. Go., LLC v. White Oak Transp. Co., 362 N.C. 191, 657 S.E.2d 361 (2008).\nIn Dogwood, the Supreme Court determined that appellate rules violations could be categorized \u00e1s three distinct types of \u201cdefaults\u201d: \u201c(1) waiver occurring in the trial court; (2) defects in appellate jurisdiction; and (3) violation of nonjurisdictional requirements.\u201d Id. at 194, 657 S.E.2d at 363. In this case, we must determine whether a failure to timely file a record on appeal under Rule 12 is a jurisdictional defect or a nonjurisdictional violation. The distinction between the two types of errors is critical: if the appellant fails to properly invoke appellate jurisdiction, the \u201cjurisdictional default.. . precludes the appellate court from acting in any manner other than to dismiss the appeal.\u201d Id. at 197, 657 S.E.2d at 365. \u201cMoreover, in the absence of jurisdiction, the appellate court[] lack[s] authority to consider whether the circumstances of a purported appeal justify application of Rule 2. \u201d Id. at 198, 657 S.E.2d at 365.\nIf, on the other hand, failing to timely file the record is a non-jurisdictional default, the appellate court \u201cpossesses discretion in fashioning a remedy to encourage better compliance with the rules.\u201d Id. Significantly, the Court stressed that \u201ca party\u2019s failure to comply with nonjurisdictional rule requirements normally should not lead to dismissal of the appeal.\u201d Id. at 198, 657 S.E.2d at 365.\nTurning to whether Rule 12 is jurisdictional, we first note that Rule 27, which governs extensions of time under the appellate rules, provides in part:\nExcept as herein provided, courts for good cause shown may upon motion extend any of the times prescribed by these rules or by order of court for doing any act required or allowed under these rules; or may permit an act to be done after the expiration of such time. Courts may not extend the time for taking an appeal or for filing a petition for discretionary review or a petition for rehearing or the responses thereto prescribed by these rules or by law.\nN.C.R. App. P. 27(c) (emphasis added). As filing the record on appeal does not involve the noticing of appeal or petitioning for discretionary review or rehearing, its deadline may be extended according to Rule 27(c).\nThe fact that the deadline in Rule 12 may be extended suggests that it is not jurisdictional. Our Supreme Court noted in Dogwood, 362 N.C. at 198, 657 S.E.2d at 365, that Rule 2 may not be invoked to save an appeal where appellant has defaulted under one of the rules described in the last sentence of Rule 27(c). Likewise, the notes of the drafting committee for Rule 2 indicate that the rule\u2019s phrase \u201c \u2018except as otherwise expressly provided\u2019 [in Rule 2] refers to the provision in Rule 27(c) that the time limits for taking appeal laid down in these Rules (i.e. Rules 14 and 15) or in \u2018jurisdiction\u2019 statutes which are then replicated or cross-referred in these Rules, i.e. Rules 3 (civil appeals), 4 (criminal appeals) and 18 (agency appeals), may not be extended by any court.\u201d Drafting Committee Note to N.C.R. App. R 2, 287 N.C. 671, 680 (1975). Thus, in contrast to the filing of the record on appeal, the deadline for filing a notice of appeal in a civil case under Rule 3 cannot be extended by any North Carolina court as the rule is jurisdictional. See Bailey v. State, 353 N.C. 142, 156, 540 S.E.2d 313, 322 (2000) (\u201cIn order to confer jurisdiction on the state\u2019s appellate courts, appellants of lower court orders must comply with the requirements of. Rule 3 . . . . The provisions of Rule 3 are jurisdictional, and failure to follow the rule\u2019s prerequisites mandates dismissal of an appeal.\u201d (internal citations omitted)).\nThis view of Rule 12 as nonjurisdictional is consistent with prior decisions of the appellate courts exercising discretion in determining whether to dismiss an appeal after the untimely filing of a record on appeal. See, e.g., Cadle Co. v. Buyna, 185 N.C. App. 148, 153, 647 S.E.2d 461, 465 (2007) (affirming trial court\u2019s dismissal of appeal for failure to timely file record on appeal where appellant \u201cpresented no persuasive basis for setting aside the trial court\u2019s dismissal of its appeal\u201d); Faison & Gillespie v. Lorant, 187 N.C. App. 567, 570, 654 S.E.2d 47, 51 (2007) (declining to dismiss appeal for \u201ctechnical\u201d violation of Rule 12 where appellant substantially complied with Rule).\nHaving determined that plaintiffs\u2019 violation of Rule 12 does not result in mandatory dismissal, the issue becomes what sanction, if any, is appropriate in this case. Dogwood, 362 N.C. at 199, 657 S.E.2d at 366, explained that an appellate court should impose sanctions, including dismissal, only when a party\u2019s nonjurisdictional rules violations rise to the level of a \u201csubstantial failure\u201d under Rule 25 or a \u201cgross violation\u201d under Rule 34. In the absence of a substantial or gross violation, \u201cthe appellate court should simply perform its core function of reviewing the merits of the appeal to the extent possible.\u201d Dogwood, 362 N.C. at 199, 657 S.E.2d at 366.\nDetermining whether a violation is \u201csubstantial\u201d or \u201cgross\u201d \u201centails a fact-specific inquiry into the particular circumstances of each case, mindful of the principle that the appellate rules should be enforced as uniformly as possible.\u201d Id. at 199-200, 657 S.E.2d at 366. A court should consider, among other factors: (1) whether and to what extent the noncompliance impairs the court\u2019s task of review, (2) whether and to what extent review on the merits would frustrate the adversarial process, and (3) the number of rules violated. Id. at 200, 657 S.E.2d at 366-67. \u201c[0]nly in the most egregious instances of non-jurisdictional default will dismissal of the appeal be appropriate.\u201d Id., 657 S.E.2d at 366.\nIn this case, the violation of Rule 12 has not hindered our review of the merits of the case or impaired the adversarial process. On the other hand, we note that plaintiffs\u2019 counsel made no attempt to rectify the error when it was identified by defendants\u2019 counsel at the time the record was filed. Plaintiffs\u2019 counsel jeopardized review of plaintiffs\u2019 claims rather than filing a motion with this Court either requesting a retroactive extension of time pursuant to Rule 27 or that the record be deemed timely filed for good cause shown under Rule 25. Compare Taylor v. City of Lenoir, 353 N.C. 695, 696, 550 S.E.2d 141, 141 (2001) (ordering pursuant to Rule 25 that record on appeal be deemed timely filed for good cause shown), rev\u2019g, 140 N.C. App. 337, 340, 536 S.E.2d 848, 850 (2000) (dismissing appeal despite class counsel\u2019s filing record seven days late and filing motion for extension of time as soon as counsel realized record was untimely).\nInstead of taking corrective action, plaintiffs\u2019 counsel waited until defendants filed a motion to dismiss and then claimed, without support in the appellate rules, that there either was no violation or it was a \u201cmere technical violation.\u201d The untimely filing of the record on appeal is not, however, a mere technical violation, but one that has resulted in the dismissal of appeals in the past. See, e.g., White, 175 N.C. App. at 143, 622 S.E.2d at 723 (dismissing appeal when record was not filed until 50 days after appellee served amendments and objections to proposed record); Byrd v. Alexander, 32 N.C. App. 782, 783, 233 S.E.2d 654, 655 (1977) (dismissing appeal when record not timely filed and no extension sought).\nWhile we conclude that the Dogwood analysis indicates that dismissal of this appeal is not warranted, when we consider that comparable delays in filing have resulted in dismissal and that the record contains other \u2014 -although relatively minor \u2014 violations, we believe that some sanction is warranted. Pursuant to Rule 34(b), we order plaintiffs\u2019 counsel to pay the printing costs of this appeal. See Caldwell v. Branch, 181 N.C. App. 107, 110-11, 638 S.E.2d 552, 555, disc. rev. denied, 361 N.C. 690, 654 S.E.2d 248 (2007). We instruct the Clerk of this Court to enter an order accordingly.\nMerits of the Appeal -\n\u201cWhen a party files a motion to dismiss pursuant to Rule 12(b)(6), the question for the court is whether 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 Enoch v. Inman, 164 N.C. App. 415, 417, 596 S.E.2d 361, 363 (2004). \u201c \u2018A complaint may be dismissed pursuant to Rule 12(b)(6) where (1) the complaint on its face reveals that no law supports a plaintiff\u2019s claim, (2) the complaint on its face reveals the absence of facts sufficient to make a good claim, or (3) the complaint discloses some fact that necessarily defeats a plaintiffs claim.\u2019 \u201d Good Hope Hosp., Inc. v. N.C. Dep\u2019t of Health & Human Servs., 174 N.C. App. 266, 274, 620 S.E.2d 873, 880 (2005) (quoting Toomer v. Garrett, 155 N.C. App. 462, 468, 574 S.E.2d 76, 83 (2002), appeal dismissed and disc. review denied, 357 N.C. 66, 579 S.E.2d 576 (2003)). In reviewing the dismissal of a complaint for failure to state a claim for relief, the appellate court reviews de novo \u201c \u2018whether the complaint alleges the substantive elements of a legally recognized claim and whether it gives sufficient notice of the events which produced the claim to enable the adverse party to prepare for trial.\u2019 \u201d Id. at 274, 620 S.E.2d at 880 (quoting Toomer, 155 N.C. App. at 468, 574 S.E.2d at 83).\nI. Short-Term Suspensions\nPlaintiffs first claim that their procedural due process rights under both the United States and North Carolina Constitutions were violated when they received short-term suspensions. In oral argument, plaintiffs\u2019 counsel represented that three plaintiffs had claims based on short-term suspensions: Joshua Thorpe, Dion Warren, and Eric Warren. As discussed above, because plaintiffs failed to assign error to the trial court\u2019s dismissal of Dion Warren\u2019s claims, the only claims remaining on appeal are those of Joshua Thorpe and Eric Warren.\nThe complaint alleges that the short-term suspensions were imposed by the school principals, who are no longer parties to this case. Plaintiffs, however, contend that they are still entitled to recover against Denlinger and the Board under 42 U.S.C. \u00a7 1983 for federal constitutional violations. With respect to the state constitutional claims, plaintiffs acknowledge that they may only proceed against the Board. Because the analysis is different under each constitution, we address the claims separately.\nA. Section 1983 Claims\nWith respect to the \u00a7 1983 claims, both defendants argue that the plaintiffs failed to exhaust their administrative remedies with respect to the short-term suspensions and, therefore, the trial court lacked subject matter jurisdiction over the procedural due process claims. See Good Hope Hosp., 174 N.C. App. at 272, 620 S.E.2d at 879 (\u201c [Procedural due process claims may not be brought under \u00a7 1983 until administrative remedies have been exhausted.\u201d). Alternatively, defendants contend that plaintiffs have failed to allege the elements necessary to impose supervisory liability on Denlinger or to hold the Board liable under Monell v. New York City Dep\u2019t of Soc. Servs., 436 U.S. 658, 694, 56 L. Ed. 2d 611, 638, 98 S. Ct. 2018, 2037 (1978). The trial court agreed with defendants both as to exhaustion and the failure of plaintiffs to sufficiently allege \u00a7 1983 claims against Denlinger and the Board and, therefore, dismissed the short-term suspension claims under Rule 12(b)(1) and 12(b)(6).\nWe note that plaintiffs, in their main brief, do not distinguish among defendants at all, referring collectively to \u201cdefendants\u201d without recognizing the differing bases for liability among the types of school defendants. In their reply brief, plaintiffs do address the potential supervisory liability of Denlinger, but never specifically address the Board\u2019s \u00a7 1983 liability.\n1. Exhaustion\nWe turn first to the exhaustion issue because it is a matter of subject matter jurisdiction. \u201cIt is well-established that \u2018where the legislature has provided by statute an effective administrative remedy, that remedy is exclusive and its relief must be exhausted before recourse may be had to the courts.\u2019 \u201d Justice for Animals, Inc. v. Robeson County, 164 N.C. App. 366, 369, 595 S.E.2d 773, 775 (2004) (quoting Presnell v. Pell, 298 N.C. 715, 721, 260 S.E.2d 611, 615 (1979)). If a plaintiff fails to exhaust his or her administrative remedies, the trial court lacks subject matter jurisdiction and the action must be dismissed. Id. \u201c[T]he exhaustion requirement may be excused if the administrative remedy would be futile or inadequate.\u201d Id. at 372, 595 S.E.2d at 777. \u201c[T]o rely upon futility or inadequacy, \u2018allegations of the facts justifying avoidance of the administrative process must be pled in the complaint.\u2019 \u201d Id. (quoting Bryant v. Hogarth, 127 N.C. App. 79, 86, 488 S.E.2d 269, 273, disc. review denied, 347 N.C. 396, 494 S.E.2d 406 (1997)).\nIn challenging the trial court\u2019s dismissal of their procedural due process claims for failure to exhaust administrative remedies, plaintiffs contend that because the Board\u2019s official policy does not provide a mechanism for appealing short-term suspensions imposed by school administrators to the Board, there was no administrative remedy available to exhaust. While ordinarily, on a motion to dismiss, we are limited to the allegations in the complaint, a court may consider matters outside the pleadings in deciding a motion to dismiss under Rule 12(b)(1) for lack of subject matter jurisdiction. See Harris v. Matthews, 361 N.C. 265, 271, 643 S.E.2d 566, 570 (2007) (holding that court \u201cmay consider matters outside the pleadings\u201d when reviewing a Rule 12(b)(1) motion). An appellate court \u201creview[s] Rule 12(b)(1) motions to dismiss for lack of subject matter jurisdiction de novo . . . .\u201d Id.\nIn response to plaintiffs\u2019 contention that no administrative remedy exists, defendants point to the 2001 amendments to N.C. Gen. Stat. \u00a7 115C-45 (2007), arguing that those amendments gave students the right to appeal to the Board a final administrative decision regarding \u201c[a]n alleged violation of a specified federal law, State law, State Board of Education policy, State rule, or local board policy . . . .\u201d N.C. Gen. Stat. \u00a7 115C-45(c)(2); 2001 N.C. Sess. Laws, ch. 260, s. 1. Nevertheless, plaintiffs allege in their complaint, and defendants do not dispute, that the Board\u2019s short-term suspension policy, Board policy 4303.2(A), specifically provides that students do not have a right to appeal their suspensions to the Board. We hold that plaintiffs\u2019 allegations that the Board\u2019s current policy bars appeal is sufficient to allege futility with respect to the short-term suspensions. The trial court, therefore, erred in dismissing plaintiffs\u2019 short-term suspension claims for failure to exhaust administrative remedies.\n2. Supervisory Liability\nPlaintiffs next argue the trial court erroneously concluded that they had failed to state a claim for relief against Denlinger with respect to their short-term suspensions. Plaintiffs do not allege Denlinger personally participated in imposing the short-term suspensions, but rather argue the complaint sufficiently alleges facts necessary to support a claim that Denlinger, as a \u201csupervisory official,\u201d is liable under \u00a7 1983 for the unconstitutional acts committed by school administrators. We disagree.\nWhile \u201c[t]he principle is firmly entrenched .that supervisory officials may be held liable in certain circumstances for the constitutional injuries inflicted by their subordinates[,]\u201d it is equally well recognized that liability \u201cis not premised upon respondeat superior . . . .\u201d Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir.), cert. denied, 513 U.S. 813, 814, 130 L. Ed. 2d 24, 115 S. Ct. 67, 68 (1994). The North Carolina appellate courts have not specifically addressed what must be shown for supervisory liability under \u00a7 1983, but the Fourth Circuit, in a leading opinion, has held that three elements are necessary:\n(1) that the supervisor had actual or constructive knowledge that his subordinate was engaged in conduct that posed \u201ca pervasive and unreasonable risk\u201d of constitutional injury to citizens like the plaintiff; (2) that the supervisor\u2019s response to that knowledge was so inadequate as to show \u201cdeliberate indifference to or tacit authorization of the alleged offensive practices\u201d; and (3) that there was an \u201caffirmative causal link\u201d between the supervisor\u2019s inaction and the particular constitutional injury suffered by the plaintiff.\nId. at 799 (quoting Miltier v. Beorn, 896 F.2d 848, 854 (4th Cir. 1990)).\nTo meet the requirements of the first element, \u201ca plaintiff must show the following: (1) the supervisor\u2019s knowledge of (2) conduct engaged in by a subordinate (3) where the conduct poses a pervasive and unreasonable risk of constitutional injury to the plaintiff.\u201d Id. In addition, \u201c[establishing a \u2018pervasive\u2019 and \u2018unreasonable\u2019 risk of harm requires evidence that the conduct is widespread, or at least has been used on several different occasions and that the conduct engaged in by the subordinate poses an unreasonable risk of harm of constitutional injury.\u201d Id. The second element of deliberate indifference is established \u201cby demonstrating a supervisor\u2019s continued inaction in the face of documented widespread abuses.\u201d Id. (internal quotation marks omitted). While we are not bound by decisions of the Fourth Circuit, we find the reasoning in Shaw persuasive and adopt its longstanding test for \u00a7 1983 supervisory liability.\nIn this case, plaintiffs\u2019 complaint alleges with respect to Thorpe that Southern High School Principal Teal gave Thorpe a five-day suspension beginning on 20 September 2005, another five-day suspension on 4 January 2006, and a six-day suspension on 28 February 2006. Eric Warren received a two-day suspension from Jordan High School Assistant Principal Dionne McLaughlin on 7 September 2005 and a three-day suspension from Assistant Principal Chris Tomasic on 8 November 2005.\nThe complaint contains no allegations that Denlinger had any actual knowledge of any of these short-term suspensions. Indeed, the complaint contains no allegations at all regarding Denlinger\u2019s knowledge about principals\u2019 practices when imposing short-term suspensions. The complaint includes broad allegations that \u201c[a]s a matter of common custom, practice, and procedure, Durham Public School administrators, including [defendant principals], routinely\u201d engage in specified conduct in connection with short-term suspensions. The complaint, however, fails to allege that Denlinger had any knowledge \u2014 actual or constructive \u2014 of the principals\u2019 conduct, custom, practice, or procedure. In addition, although the complaint does allege that Denlinger \u201cdeliberately violated Plaintiffs\u2019 constitutional right to procedural due process,\u201d that paragraph follows allegations regarding Denlinger\u2019s personal conduct in connection with long-term suspensions.\nNo allegations in the complaint suggest that Denlinger was deliberately indifferent to any procedural due process violations by principals when imposing short-term suspensions. In the absence of these allegations, plaintiffs have failed to state a claim for relief against Denlinger under \u00a7 1983 with respect to short-term suspensions. See W.E.T. v. Mitchell, 2007 WL 2712924, *12 (M.D.N.C. Sept. 14, 2007) (\u201cPlaintiffs in this case have not alleged in any manner that Denlinger . . . had actual or constructive knowledge of [the teacher\u2019s] actions. Thus, having failed to allege the first element of a claim for failure to properly supervise [the teacher], Plaintiffs have failed to state a claim for supervisory liability under \u00a7 1983.\u201d); Layman v. Alexander, 294 F. Supp. 2d 784, 794 (W.D.N.C. 2003) (concluding dismissal of \u201csupervisor liability\u201d claim was proper when \u201c[t]here are no allegations ... from which the Court may reasonably infer that either [supervisory officials] had actual or constructive knowledge that their subordinates posed a pervasive and unreasonable risk of constitutional injury to citizens like [plaintiff]\u201d).\nPlaintiffs addressed the law regarding supervisory liability for the first time in their reply brief. Although plaintiffs recite the test for establishing supervisory liability, plaintiffs\u2019 reasoning \u2014 focusing on Denlinger being responsible for work delegated to subordinates and having the responsibility to end offensive practices \u2014 amounts to a claim based upon a respondeat superior theory of liability. Nowhere in their brief do plaintiffs point to any allegation of Denlinger\u2019s having the required knowledge with respect to short-term suspensions as opposed to long-term suspensions or procedural due process violations generally.\nAlthough plaintiffs protest that an official\u2019s actual or constructive knowledge is a question of fact, their complaint is required to include allegations of the facts necessary to establish a claim for relief. See id. at 794 (dismissing supervisory liability claims were plaintiff failed to allege actual or constructive knowledge although plaintiff alleged that defendants failed to adequately supervise their subordinates). Because plaintiffs\u2019 complaint does not include the allegations necessary to set forth a claim against Denlinger with respect to short-term suspensions, the trial court properly granted the Rule 12(b)(6) motion as to those claims.\n3. Municipal Liability\nWith respect to the Board, the United States Supreme Court held in Monell, 436 U.S. at 694, 56 L. Ed. 2d at 638, 98 S. Ct. at 2037, that a local governmental body could be sued under \u00a7 1983, but that liability could not be premised on a theory of respondeat superior. Under Monell, a municipality may be found liable only \u201cwhen execution of a government\u2019s policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury . . . .\u201d Id., 56 L. Ed. 2d at 638, 98 S. Ct. at 2037-38. The Supreme Court later clarified in Pembaur v. City of Cincinnati, 475 U.S. 469, 480, 89 L. Ed. 2d 452, 463, 106 S. Ct. 1292, 1298 (1986) (emphasis omitted), that \u201c[t]he \u2018official policy\u2019 requirement was intended to distinguish acts of the municipality from acts of employees of the municipality, and thereby make clear that municipal liability is limited to action for which the municipality is actually responsible.\u201d\nWe acknowledge that the United States Supreme Court has held that in \u00a7 1983 cases, a plaintiff is only required by Fed. R. Civ. P. 8(a)(2) to include \u201ca short and plain statement\u201d of the basis for liability. Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 168, 122 L. Ed. 2d 517, 524, 113 S. Ct. 1160, 1163 (1993). Nevertheless, plaintiffs have provided no argument on appeal as to why the complaint\u2019s allegations are sufficient to establish the Board\u2019s liability under Monell for procedural due process violations. Further, our review of plaintiffs\u2019 complaint reveals no allegations regarding any acts of the Board with respect to short-term suspensions. Since plaintiffs have not pointed to any allegations in their complaint that they contend support a claim for relief against the Board under \u00a7 1983 under the principles first set forth in Monell, we are compelled to hold that the trial court did not err in dismissing plaintiffs\u2019 short-term suspension claims against the Board.\nB. North Carolina Constitution\nPlaintiffs have also contended that the procedures used in their short-term suspensions violated the North Carolina Constitution\u2019s \u201claw of the land\u201d clause, N.C. Const. art. I, \u00a7 19. As noted in discussing the \u00a7 1983 claims, plaintiffs\u2019 claims regarding short-term suspensions are based solely on the actions of the school principals. Plaintiffs asserted their claims against the principals in both the principals\u2019 individual and official capacities. \u201cIn a suit against a governmental employee in his official capacity, the plaintiff is seeking relief from the governmental entity that employs the defendant, while in a suit against that employee in his individual capacity, the plaintiff is seeking relief from the defendant as an individual.\u201d Oakwood Acceptance Corp. v. Massengill, 162 N.C. App. 199, 209, 590 S.E.2d 412, 420 (2004).\nThus, a claim against a school principal in his or her official capacity constitutes a claim against the Board for purposes of bringing a claim under the state constitution. See Moore v. City of Creedmoor, 345 N.C. 356, 367, 481 S.E.2d 14, 21 (1997) (\u201c[OJfficialcapacity suits \u2018generally represent only another way of pleading an action against an entity of which an officer is an agent.\u2019 \u201d (quoting Kentucky v. Graham, 473 U.S. 159, 165, 87 L. Ed. 2d 114, 121, 105 S. Ct. 3099, 3105 (1985))). Based on this reasoning, the trial court in this case dismissed \u201cplaintiffs\u2019 claims against the individual defendants in their official capacity [as] redundant because the Durham Public Schools Board of Education is also named as a defendant.\u201d Plaintiffs\u2019 claims under the state constitution may, therefore, be based on the actions of the school principals even though plaintiffs elected not to appeal the dismissal of their claims against the principals.\nIn the landmark decision, Corum v. University of North Carolina, 330 N.C. 761, 782, 413 S.E.2d 276, 289, cert. denied, 506 U.S. 985, 121 L. Ed. 2d 431, 113 S. Ct. 493 (1992), our Supreme Court held that \u201cin the absence of an adequate state remedy, one whose state constitutional rights have been abridged has a direct claim against the State under our Constitution.\u201d Before the trial court and on appeal, the Board argued that plaintiffs\u2019 state constitutional claims were precluded because an adequate state remedy exists. The trial court agreed with the Board and dismissed plaintiffs\u2019 due process claims on that ground: \u201cAdequate state remedies were available to plaintiffs for their state constitutional claims; therefore, plaintiffs\u2019 state constitutional claims for violations of their procedural due process and equal educational opportunity rights are DISMISSED.\u201d\nAlthough plaintiffs addressed the trial court\u2019s separate conclusion that plaintiffs\u2019 claims were barred by a failure to exhaust their administrative remedies, plaintiffs\u2019 brief does not contain any specific argument regarding the trial court\u2019s determination that adequate alternative remedies exist. Even if plaintiffs\u2019 assignments of error could be construed as assigning error to this particular conclusion of law, Rule 28(b)(6) provides that \u201c[assignments of error... in support of which no reason or argument is stated or authority cited, will be taken as abandoned.\u201d\nIn any event, plaintiffs have failed to demonstrate on appeal that the trial court erred in its alternative basis for dismissal: \u201cViewing the facts in the light most favorable to the plaintiffs, they have failed to allege sufficient facts to state a claim for relief for a violation of their state or federal due process rights against any defendants.\u201d Plaintiffs do not contend that the North Carolina constitution provides greater due process protection than the federal constitution. In In re Alexander v. Cumberland County Bd. of Educ., 171 N.C. App. 649, 657, 615 S.E.2d 408, 414 (2005), this Court held, citing Goss v. Lopez, 419 U.S. 565, 581-84, 42 L. Ed. 2d 725, 738-40, 95 S. Ct. 729, 739-41 (1975), that \u201cprior to imposing a short-term suspension of ten days or less, the school is only required to give the student notice of the charges against her and an opportunity to be heard \u2014 i.e., an opportunity to present her version of the incident.\u201d\nInstead of focusing on the Goss test, plaintiffs assert that \u201c[t]he allegations in Plaintiffs\u2019 verified complaint demonstrate a common custom and practice by Defendants to disregard procedures required by DPS policies [governing short-term suspensions].\u201d Plaintiffs then argue that \u201c[defendants are bound by their own regulations,\u201d and, therefore, the principals\u2019 failure to comply with Board policies violated their procedural due process rights.\nAs their sole support for this contention, plaintiffs cite Orange County v. N.C. Dep\u2019t of Transp., 46 N.C. App. 350, 382, 265 S.E.2d 890, 910-11, disc. review denied, 301 N.C. 94 (1980). In Orange County, however, this Court did not address a procedural due process claim, but rather was being asked to determine directly, in connection with a petition for judicial review under the Administrative Procedure Act, whether the Department of Transportation had violated state and federal regulations. Nothing in Orange County can be read as holding that a violation of agency regulations necessarily constitutes a denial of procedural due process. Indeed, this Court pointed out in Orange County that \u201cthere are no state constitutional or statutory requirements which would require the Board of Transportation to hear any citizen,\u201d even though the Court also held that the regulations did include a hearing requirement. Id. at 382, 265 S.E.2d at 911.\nIn Goss, the United States Supreme Court held that due process requires for short-term suspensions \u201cthat the student be given oral or written notice of the charges against him and, if he denies them, an explanation of the evidence the authorities have and an opportunity to present his side of the story.\u201d 419 U.S. at 581, 42 L. Ed. 2d at 739, 95 S. Ct. at 740. The Court explained, however, that \u201c[t]here need be no delay between the time \u2018notice\u2019 is given and the time of the hearing. In the great majority of cases the disciplinarian may informally discuss the alleged misconduct with the student minutes after it has occurred. We hold only that, in being given an opportunity to explain his version of the facts at this discussion, the student first be told what he is accused of doing and what the basis of the accusation is.\u201d Id. at 582, 42 L. Ed. 2d at 739, 95 S. Ct. at 740.\nPlaintiffs have not identified any plaintiff for whom the complaint alleges that these requirements of Goss were violated. In their appellants\u2019 brief, plaintiffs point to Joshua Thorpe and the complaint\u2019s allegations that the school principal did not return his mother\u2019s telephone calls. The complaint does not allege, however, that Thorpe himself was not given notice of the reason that he was being suspended or that he was denied an opportunity to tell the principal his side of what occurred. Even with respect to his mother, the complaint acknowledges that the principal\u2019s assistant returned the mother\u2019s call, and Thorpe\u2019s counsel obtained a complete copy of Thorpe\u2019s school record, including documentation relating to the short-term suspension at issue. Plaintiffs do not explain in what way these allegations reveal a violation of Goss.\nAccordingly, plaintiffs have failed to allege facts establishing that their procedural due process rights were violated, as opposed to the Board\u2019s policies. The trial court, therefore, properly granted the Rule 12(b)(6) motion to dismiss plaintiffs\u2019 claims under the state constitution with respect to short-term suspensions.\nII. Long-Term Suspensions\nPlaintiffs also allege that they were denied procedural due process under both the federal and state constitutions in connection with long-term suspensions. Although the complaint is not entirely clear, it appears that plaintiffs Angel\u00ed Copper, Desmond Johnson, Jazmyn Jenkins, and Todd Douglas received long-term suspensions.\nA. Section 1983: Exhaustion of Administrative Remedies\nThe trial court determined.that it lacked subject matter jurisdiction over the long-term suspension claims because plaintiffs failed to allege they exhausted the administrative review process provided in N.C. Gen. Stat. \u00a7 115C-45(c). In arguing that the trial court erred, plaintiffs contend that it would have been futile to pursue the administrative remedy.\nAlthough plaintiffs were not required to specifically reference \u201cfutility\u201d in their complaint, the complaint was required to include allegations establishing futility. See Justice for Animals, Inc., 164 N.C. App. at 372, 595 S.E.2d at 777 (holding that factual allegations justifying avoidance of administrative process must be pled in complaint). Our review of the complaint discloses no factual allegations that would support plaintiffs\u2019 futility argument except for Todd Douglas.\nWith respect to Douglas, the complaint alleges that he was suspended for 13 days and thus received a long-term suspension entitling him to appeal that suspension. The complaint alleges further that Denlinger wrote a letter dated 8 October 2003 purporting to allow Douglas to transfer to another school as of 9 October 2003, which, according to plaintiffs, would have made the suspension short-term. Denlinger did not, however, have the letter delivered to Douglas\u2019 mother until 14 October 2003, the date that the principal had said Douglas could return to school and day 13 of the suspension. The complaint alleges that Denlinger\u2019s letter was designed \u201cto cut off Todd\u2019s right to appeal.\u201d According to the complaint, Douglas\u2019 mother was notified that she had no right to appeal the suspension because it was short-term. Finally, the complaint alleges: \u201cTodd was never given an opportunity to appeal his long-term suspension from Southern High School.\u201d\nIn arguing that these allegations are insufficient to establish futility, defendants contend that Denlinger\u2019s letter, as alleged in the complaint, addressed only Douglas\u2019 transfer to another school and not the suspension. Defendants do not, however, address the allegations that Douglas was denied an appeal on the ground that his suspension was short-term, even though it exceeded 10 days. We hold that those allegations are sufficient to allege as to Douglas that exhaustion of administrative remedies was futile.\nWe reach a different conclusion as to Copper, Jenkins, and Johnson. Plaintiffs make no specific argument at all in their brief as to Copper. Plaintiffs argue instead generally that they have \u201callege [d] a common pattern and practice by Defendants to frustrate the appeals process\u201d and point to not only the allegations regarding Douglas, but also the factual allegations surrounding Jenkins\u2019 and Johnson\u2019s suspensions. In the complaint, plaintiffs state that after Jenkins and Johnson received their \u201cschool-based\u201d disciplinary hearing in accordance with Board policy 4303.4(C), they received letters from Denlinger notifying them that they had until 9 January 2006 to appeal her decision to uphold their suspensions. The complaint alleges that Jenkins\u2019 letter was postmarked 14 January 2006; Johnson\u2019s letter was postmarked 16 January 2006.\nPlaintiffs have, however, failed to address Board policy 4303.4(E), which states that a student may appeal the superintendent\u2019s decision to the Board \u201cby giving written notice to the Superintendent and the Board within 10 school days after receiving notice of the Superintendent\u2019s decision.\u201d (Emphasis added.) Thus, regardless of the allegations in the complaint, Jenkins\u2019 and Johnson\u2019s potential appeals were not foreclosed by the timing of the delivery of Denlinger\u2019s letters.\nOther allegations in the complaint refute plaintiffs\u2019 contention on appeal regarding \u201ca pattern and practice\u201d of thwarting appeals sufficient to allege futility. The complaint contains no allegation that Rhodes, who received a long-term suspension, experienced any interference in his ability to appeal that suspension. More significantly, the complaint alleges, with respect to an earlier long-term suspension of Johnson, that Johnson\u2019s father received notice in early January 2005 that Denlinger had suspended Johnson for the remainder of the year and that he had until 28 January 2005 to appeal that decision to the Board. Because of health reasons, Johnson\u2019s father failed to appeal prior to the deadline. The complaint alleges, however, that the Board ultimately still heard the appeal, and on 12 May 2005, retroactively reduced Johnson\u2019s suspension to 10 days. The complaint\u2019s allegations that Johnson pursued the administrative review process and obtained a favorable result \u2014 when his' appeal was untimely \u2014 precludes an inference from the complaint\u2019s allegations that pursuit of administrative remedies was futile.\nAlthough plaintiffs did not contend in their brief that they sufficiently alleged that the administrative review process was inadequate (as opposed to futile), plaintiffs\u2019 counsel made such a claim during oral argument. The complaint, however, does not contain any allegations relating to the adequacy of the remedy provided by N.C. Gen. Stat. \u00a7 115C-45(c). Nor does the complaint contain any allegations from which we can infer that the administrative remedies were inadequate to remedy the procedural due process claims. The possible inadequacy of the administrative remedy is not before this Court.\nWe, therefore, hold that the complaint contains sufficient allegations that exhaustion of administrative remedies was futile for Douglas. The trial court erred in dismissing his procedural due process claims under Rule 12(b)(1). Because, however, the allegations of the complaint are insufficient as to the remaining plaintiffs, we uphold the dismissal of their procedural due process claims based on the long-term suspensions.\nB. N.C. Constitution: Adequacy of Alternative State Remedy\nThe trial court dismissed plaintiffs\u2019 state constitutional claims based on long-term suspensions on the grounds that (1) an adequate alternative state remedy existed and (2) plaintiffs had failed to exhaust their administrative remedies.. Plaintiffs only assigned error to the exhaustion basis for the trial court\u2019s dismissal.\nThe parties appear to conflate the two concepts. Neither party specifically addresses whether an administrative remedy such as the one provided under N.C. Gen. Stat. \u00a7 115C-45(c) can constitute an adequate alternative state remedy sufficient to preclude a constitutional claim. Nor does either party specifically address whether exhaustion is a prerequisite to bringing a state constitutional claim separate from the \u201cadequate alternative state remedy\u201d analysis. On appeal, plaintiffs simply rely on their argument that exhaustion would have been futile.\n\u201cIt is not the role of the appellate courts ... to create an appeal for an appellant.\u201d Viar v. N.C. Dep\u2019t of Transp., 359 N.C. 400, 402, 610 S.E.2d 360, 361 (2005). As plaintiffs have limited their arguments on appeal to the question whether the administrative remedies were futile, and because we have already concluded the complaint fails to allege sufficient facts to establish futility except as to Douglas, we hold that the plaintiffs other than Douglas have failed to demonstrate that the trial court erred in dismissing their state constitutional claims with respect to long-term suspensions.\nC. Todd Douglas\u2019 Procedural Due Process Claims\nIn In re Alexander, 171 N.C. App. at 657, 615 S.E.2d at 415 (internal citations omitted), this Court held:\nAs indicated in Goss, suspensions for longer than ten days or expulsions for the remainder of the school term or permanently require more formal procedures. This Court has held that when a school board seeks to impose a long-term suspension, a student not only has the right to notice and an opportunity to be heard, the student also has the right to a full hearing, an opportunity to have counsel present at the hearing, to examine evidence and to present evidence, to confront and cross-examine witnesses supporting the charge, and to call his own witnesses to verify his version of the incident.\nThe complaint alleges that Douglas received a 13-day suspension and, therefore, he was entitled to a full hearing with the procedural protections set out in Alexander. The complaint alleges that Douglas was denied an opportunity to any appeal of his long-term suspension and, therefore, alleges a claim that Douglas\u2019 right to procedural due process was denied. The question remains, however, whether the complaint alleges a claim against the only remaining defendants, Denlinger and the Board.\nThese allegations are sufficient to assert a claim against the Board under the North Carolina constitution based on the actions of the principal and Denlinger in their official capacities. With respect to the adequacy of the alternative state remedy, defendants rely upon only the administrative remedies that plaintiffs contend Douglas was unlawfully denied. Thus, defendants have failed to establish that alternative adequate state remedies existed for Douglas and his mother.\nWith respect to \u00a7 1983, however, plaintiffs again fail to make any argument as to how the complaint complies with the requirements of Monell as to Douglas\u2019 long-term suspension claim. The trial court, therefore, erred in dismissing the Douglas long-term suspension claim under the North Carolina constitution, but properly dismissed it under \u00a7 1983.\nWith respect to the claim relating to Douglas asserted against Denlinger in her individual capacity under \u00a7 1983, plaintiffs do not rely on Denlinger\u2019s supervisory liability. The complaint alleges that Denlinger acted \u201cpurposefully ... to cut off Todd\u2019s right to appeal.\u201d The complaint also alleges that Denlinger\u2019s 8 October 2003 letter was a \u201clie.\u201d Although defendants assert that the letter cannot be viewed as addressing Douglas\u2019 suspension as opposed to a transfer, that contention would require that we view the allegations in the light most favorable to the moving \u2014 rather than the non-moving \u2014 party. Such an approach is, of course, precluded when deciding a Rule 12(b)(6) motion to dismiss. The trial court, therefore, erred in dismissing under Rule 12(b)(6) the Douglas long-term suspension claim brought against Denlinger under \u00a7 1983.\nThe trial court, however, also dismissed the \u00a7 1983 claim for damages against Denlinger based on qualified immunity. This Court has set out the following test for qualified immunity:\nIn order to establish the existence of an official\u2019s right to the defense of qualified immunity, one must (1) identify the specific right allegedly violated; (2) determine whether that right was clearly established; and (3) if clearly established, determine whether a reasonable person in the officer\u2019s position would have known that his/her actions would violate that right.\nMoore v. Evans, 124 N.C. App. 35, 48, 476 S.E.2d 415, 425 (1996). The first two determinations are questions of law for the court. Id. \u201cThe third determination, however, requires the factfinder to make factual determinations concerning disputed aspects of the officer[\u2019s] conduct.\u201d Id: (internal quotation marks omitted).\nWe do not believe that the question of qualified immunity can be resolved, in this case, at the motion to dismiss stage. This Court has previously held that while qualified immunity may be raised in a motion to dismiss under Rule 12(b), in deciding \u201ca motion to dismiss on grounds of qualified immunity, the trial court may look only to the allegations of the complaint to determine whether qualified immunity is established.\u201d Toomer, 155 N.C. App. at 473-74, 574 S.E.2d at 86.\nDenlinger argues that the Douglas claims do not involve a clearly established right because \u201cthe right to appeal a decision\u201d is not a right protected by due process, but rather by N.C. Gen. Stat. \u00a7 115C-391(d5) (2007). We do not, however, read plaintiffs\u2019 complaint as referring to the right to appeal to the Board, but rather as referring to the right to the hearing process applicable to long-term suspensions. The right to the type of hearing set forth in Alexander was \u201cclearly established\u201d arguably at the time Goss was decided in 1975 and definitely by 2002 when this Court rendered its decision in In re Roberts, 150 N.C. App. 86, 92-93, 563 S.E.2d 37, 42 (2002) (setting out student\u2019s right to hearing to challenge long-term suspension), appeal dismissed and disc, review improvidently allowed, 356 N.C. 660, 576 S.E.2d 327, cert. denied, 540 U.S. 820, 157 L. Ed. 2d 38, 124 S. Ct. 103 (2003), overruled in part on other grounds, 358 N.C. 649, 599 S.E.2d 888 (2004).\nWith respect to the final prong of the qualified immunity test, the complaint does not allege who informed Douglas\u2019 mother that her son had no right to appeal because his suspension was short-term. Nevertheless, the complaint, when viewed in the light most favorable to plaintiffs, alleges that Denlinger, in an attempt to avoid review of the principal\u2019s long-term suspension decision, reinstated Douglas on paper without notifying his mother so that Douglas could return to school within 10 days. At this stage, we hold that a reasonable superintendent of schools would have known that she was violating a student\u2019s procedural due process rights by taking that action.\nThis determination does not establish that Denlinger is not entitled to qualified immunity with respect to the Douglas claim. We merely'hold that the trial court should not have dismissed the claim at this stage based on qualified immunity. See Toomer, 155 N.C. App. at 474, 574 S.E.2d at 87 (holding that defendants were not entitled to dismissal of claims under Rule 12(b) based on qualified immunity).\nFinally, Denlinger contends that the trial court properly dismissed any claim for punitive damages. As her sole authority for affirming the trial court\u2019s Rule 12(b)(6) ruling, Denlinger cites Coleman v. Kaye, 87 F.3d 1491, 1509 (3d Cir. 1996), cert. denied, 519 U.S. 1084, 136 L. Ed. 2d 691, 117 S. Ct. 754 (1997), which upheld a jury\u2019s punitive damages award. Our Supreme Court has held that \u201cnotice pleading\u201d principles apply to claims for punitive damages. Shugar v. Guill, 304 N.C. 332, 338, 283 S.E.2d 507, 510 (1981). A plaintiff may recover punitive damages under \u00a7 1983 when a wrong is done willfully, under circumstances of rudeness or oppression, or in a manner which evidences a reckless and wanton disregard of a plaintiff\u2019s rights. Moore, 345 N.C. at 371, 481 S.E.2d at 24. Plaintiffs\u2019 allegations that (1) Denlinger \u201cpurposefully post dated her letter\u201d in order \u201cto cut off Todd\u2019s right to appeal\u201d and that her letter was a \u201clie\u201d are sufficient to meet the requirements of Shugar and Moore. The complaint, therefore, sufficiently alleges a claim for punitive damages against Denlinger arising out of Douglas\u2019 long-term suspension.\nWe note that the parties have not addressed whether the procedural due process claim survives Douglas\u2019 death. We leave that issue to be addressed in the first instance by the trial court. Nothing in this decision should be viewed as expressing any opinion on that issue.\nIII. Equal Protection\nPlaintiffs next challenge the trial court\u2019s dismissal of their equal protection claims, arguing that the claims are supported by their allegations of racial profiling and racial discrimination in the administration of discipline. Only the claims of Copper, Johnson, Eric Warren, Thorpe, Douglas, and Jenkins are before the Court.\nIn support of their equal protection claims, plaintiffs argue generally in their brief that minorities are treated disparately, and they set out in the brief an extensive discussion of allegations suggesting Denlinger is racially biased. Because, however, no class has been certified in this case, the issue is whether the complaint sufficiently alleges on behalf of each plaintiff an equal protection claim against Denlinger and against the Board.\nWe first note that the trial court\u2019s dismissal of the equal protection claims was grounded on both a failure to exhaust administrative remedies and on Rule 12(b)(6). The trial court erred in applying the exhaustion of administrative remedies doctrine to the equal protection claims. See Edward Valves, Inc. v. Wake County, 343 N.C. 426, 434-45, 471 S.E.2d 342, 347 (1996) (holding that \u00a7 1983 action based on violation of substantive constitutional right \u2014 as opposed to procedural due process \u2014 not precluded by failure to exhaust state administrative remedies), cert. denied, 519 U.S. 1112, 136 L. Ed. 2d 839, 117 S. Ct. 952 (1997); Good Hope Hosp., 174 N.C. App. at 272, 620 S.E.2d at 879 (\u201cViolation of a substantive constitutional right may be the subject of a \u00a7 1983 claim, regardless of whether administrative remedies have been exhausted, because the violation is complete when the prohibited action is taken.\u201d).\nTo state an equal protection claim, plaintiffs must allege that (1) they have been treated differently from others similarly situated to plaintiffs, and (2) the unequal treatment is the result of intentional or purposeful discrimination. Id. at 274, 620 S.E.2d at 880. \u201c \u2018To state an equal protection claim, [plaintiffs] must plead sufficient facts to satisfy each requirement....\u2019\u201d Id., 620 S.E.2d at 880-81 (quoting Veney v. Wyche, 293 F.3d 726, 730-31 (4th Cir. 2002)).\nPlaintiffs acknowledge that \u201c[i]n order to make out a claim of racial discrimination, a plaintiff \u2018must allege purposeful discrimination; that is, he must assert that [defendant] took some adverse action against him as a result of a discriminatory animus.\u2019 \u201d Peterkin v. Columbus County Bd. of Educ., 126 N.C. App. 826, 827, 486 S.E.2d 733, 734 (1997) (quoting Sterling v. Se. Penn. Transp. Auth., 897 F. Supp. 893, 896 (E.D. Pa. 1995)). Yet, the complaint in this case never alleges that any of the defendants took disciplinary action against Copper, Johnson, Warren, Thorpe, Douglas, or Jenkins based on their race.\nPlaintiffs could have alleged that the short-term suspensions or long-term suspensions imposed on these plaintiffs were because of their race, but they did not do so. Compare Enoch, 164 N.C. App. at 419, 596 S.E.2d at 364 (holding that plaintiff stated claim for relief under \u00a7 1983 when she alleged that defendant \u201csubjected her to race discrimination in failing to promote her in violation of her right to equal protection under the Fourteenth Amendment to the United States Constitution\u201d). Indeed, plaintiffs\u2019 brief on appeal does not point to any allegations that plaintiffs were individually subjected to discipline based on their race.\nInstead, plaintiffs rely solely upon allegations (1) regarding a letter by Denlinger setting out a \u201cno tolerance\u201d policy for gang-related behavior that plaintiffs contend, upon information and belief, was not sent to African-American families, and (2) allegations regarding statistics indicating that a disproportionate number of minority students are suspended from the Durham public schools. These allegations of general bias cannot, however, substitute for allegations indicating that each individual plaintiff\u2019s discipline was motivated by racial discrimination. See Yusuf v. Vassar College, 35 F.3d 709, 713 (2d Cir. 1994) (\u201cIn order to survive a motion to dismiss, the plaintiff must specifically allege the events claimed to constitute intentional discrimination as well as circumstances giving rise to a plausible inference of racially discriminatory intent.\u201d).\nPlaintiffs additionally argue that they have sufficiently alleged an equal protection claim based on racial profiling. Their entire argument in support of this contention reads:\nDenlinger and the School Board publicly acknowledge that school administrators are not trained to deal with gang activity and must rely heavily on school resource officers to identify students suspected of gang affiliation. (Comp. \u00b6 46,474, R. pp. 11, 475). Plaintiffs allege that Denlinger and the School Board were well aware that school resource officers routinely used impermissible racial profiling to identify students suspected of gang-related activity, (Comp. \u00b6\u00b6 477-479, R. p. 45), that they condoned and ratified the use of race as the primary indicator of gang affiliation, (Comp. \u00b6 482, R. p. 45), and that, as a consequence of racial profiling, Plaintiffs were falsely accused of gang membership.\nThe paragraphs of the complaint cited in this portion of the brief do not specifically relate to any of the plaintiffs. Even more significantly, the brief contains no citation to the complaint following the assertion that \u201cas a consequence of racial profiling, Plaintiffs were falsely accused of gang membership.\u201d A review of the complaint reveals the reason for this omission: the complaint does not contain any such allegation.\nMoreover, the complaint contains allegations that conflict with plaintiffs\u2019 contentions on appeal. Although the complaint contains allegations that Copper, Douglas, Jenkins, Johnson, Thorpe, and Eric Warren, all African-American students, were labeled as gang members, the complaint also alleges that school administrators falsely accused Solari \u2014 alleged in the complaint to be a Caucasian student \u2014 of being the \u201cCripp Queen.\u201d The allegations include, among others:\n137. In April 2004, Jordan High School Guidance Counselor Victoria Tirgrath advised Gina\u2019s mother that the \u201ccommon consensus\u201d among Jordan administrators and faculty was that Gina was involved in gang activity and should be expelled.\n159. On or about September 10, 2005, in the presence of [the principal], Defendants [school resource officers] stated to Ms. Warren that Jazmyn Jenkins, Desmond Johnson, Angel\u00ed Copper, and Gina Solari, among others, were known gang members and that Ms. Warren should not permit her sons to associate with them.\n164. On October 4, 2005, [the school resource officer] falsely stated to Mr. Johnson that Jazmyn Jenkins, Angel\u00ed Copper, and Eric Warren were known gang members and that Gina Solari was a gang leader and carried a loaded shotgun in the trunk of her car.\n186. A week later, in early November 2005, [the school resource officer] falsely stated to Cassandra Jenkins that Angel\u00ed Copper, Desmond Johnson, and Eric Warren were gang members and that Gina Solari was known to be the \u201cCripp Queen.\"\n(Emphasis added.) Thus, the complaint alleges that a Caucasian student, Solari, was subjected to the same false gang-member labeling as the African-American plaintiffs. The complaint is, therefore, inconsistent with respect to the claim of racial profiling urged on appeal. See Yusuf, 35 F.3d at 714 (affirming dismissal of racial discrimination claim where complaint lacked fact-specific allegations of racial animus and included factual allegations indicating \u201crace-neutral factors\u201d that may have led to the challenged conduct).\nIt may have been a relatively simple matter for plaintiffs to make the necessary allegations. See Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514, 152 L. Ed. 2d 1, 11, 122 S. Ct. 992, 999 (2002) (finding complaint sufficient when plaintiff \u201calleged that he had been terminated on account of his national origin in violation of Title VII and on account of his age in violation of the ADEA\u201d); Bennett v. Schmidt, 153 F.3d 516, 518 (7th Cir. 1998) (in order to avoid dismissal under Rule 12(b)(6), \u201c T was turned down for a job because of my race\u2019 is all a complaint has to say\u201d). Nonetheless, we may not \u2014 in the guise of construing the complaint liberally \u2014 supply, on appeal, allegations that are missing. See Holman v. Indiana, 211 F.3d 399, 407 (7th Cir. 1999) (\u201cThe \u2018liberal construction accorded a pleading under [Fed. R. Civ. P. 8] does not require the courts to fabricate a claim that a plaintiff has not spelled out in his pleadings.\u2019 \u201d (quoting 5 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure, \u00a7 1286 at 558 (2d ed. 1990))), cert. denied, 531 U.S. 880, 148 L. Ed. 2d 132, 121 S. Ct. 191 (2000). The trial court, therefore, did not err in dismissing plaintiffs\u2019 equal protection claims. Peterkin, 126 N.C. App. at 828, 486 S.E.2d at 735 (\u201cHaving failed to allege facts that would support a \u00a7 1983 claim [for racial discrimination], we must conclude that the trial court properly granted defendant\u2019s Rule 12(b)(6) motion to dismiss this action.\u201d).\nIV. Gang Policy\nIn their final argument, plaintiffs contend the trial court erred in dismissing their claim that the Board\u2019s gang policy is unconstitutionally vague on its face. Since the claim challenges the facial validity of the policy, it is, therefore, asserted only against the Board and not against Denlinger.\nWe are permitted to consider not only the allegations of the complaint itself, but also \u201cdocuments which are the subject of a plaintiff\u2019s complaint and to which the complaint specifically refers even though they are presented by the defendant.\u201d Oberlin Capital, L.P. v. Slavin, 147 N.C. App. 52, 60, 554 S.E.2d 840, 847 (2001). Thus, Board policy 4301.10 is properly before the Court.\nThe challenged policy reads:\nRule 10: Prohibition of Gangs and Gang Activities. No student shall commit any act which furthers gangs or gang-related activities. A gang is any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of criminal acts and having a common name or common identifying sign, colors, or symbols. Conduct prohibited by this policy includes:\ni. Wearing, possessing, using, distributing, displaying, or selling any clothing, jewelry, emblems, badges, symbols, signs or other items which may be evidence of membership or affiliation in any gang;\nii. Communicating either verbally or non-verbally (gestures, handshakes, slogans, drawings, etc.) to convey membership or affiliation in a gang;\niii. Tagging, or otherwise defacing school or personal property with gang or gang-related symbols or slogans;\niv. Requiring payment of protection, insurance, or otherwise intimidating or threatening any person related to gang activity;\nv. Inciting other students to intimidate or to act with physical violence upon any other person related to gang activity;\nvi. Soliciting others for gang membership;\nvii. Committing any other illegal act or other violation of school district policies that relates to gang activity.\nThe Superintendent/designee shall consult with law enforcement officials semi-annually to establish a list of gang-related items, symbols and behaviors. The principal shall maintain this list in the main office of the school and shall notify students of the items, symbols and behaviors prohibited by this policy. This notice shall be included in the student handbook.\nBefore being suspended for a first offense of wearing gang-related attire (when not involved in any kind of altercation), a student will receive a warning and will be allowed to immediately change or remove the attire that is in violation of this policy.\nPlaintiffs allege that this policy does not provide adequate notice to students of the precise conduct prohibited, gives excessive subjective discretion to school officials and school resource officers regarding which conduct to punish, and is unconstitutionally vague. The trial court concluded, however, that \u201c[t]he challenged policy defines a violation of the policy with sufficient definiteness that a student could understand what conduct was prohibited and it establishes standards to permit enforcement in a non-arbitrary, nondiscriminatory manner.\u201d The court, therefore, dismissed the declaratory judgment claim.\nWhile Rule 10 contains a definition of \u201cgang,\u201d it does not specify what \u201cclothing, jewelry, emblems, badges, symbols, signs or other items . . . may be evidence of membership or affiliation in any gang.\u201d (Emphasis added.) Rule 10 also does not define what \u201cgestures, handshakes, slogans, drawings, etc.\u201d will be deemed \u201cto convey membership or affiliation in a gang.\u201d .\nCourts considering similar provisions that could, without further definition, equally' encompass innocent and gang-related behavior or dress have found the provisions unconstitutionally vague. The Eighth Circuit Court of Appeals addressed a school policy prohibiting gang-related activities such as display of colors, symbols, signals, or signs. Stephenson v. Davenport Cmty. Sch. Dist., 110 F.3d 1303, 1305 (8th Cir. 1997). In addition to holding that the policy was fatally vague for failing to define the term \u201cgang\u201d \u2014 not an issue in this case \u2014 the court also separately held that the policy was unconstitutionally vague by failing to define the specific gang-related activities that were prohibited:\nGang symbols, as with display of the flag, take many forms and are constantly changing. Accordingly, the District must \u201cdefine with some care\u201d the \u201cgang related activities\u201d it wishes students to avoid. The regulation, however, fails to define the term at all and, consequently, fails to provide meaningful guidance for those who enforce it.\nId. at 1310 (internal citations omitted).\nThe court explained further:\nSadly, gang activity is not relegated to signs and symbols otherwise indecipherable to the uninitiated. In fact, gang symbols include common, seemingly benign jewelry, words and clothing. For example, color combinations frequently represent gang symbols. Indeed, the colors red and blue are the colors of our flag and the colors of two prominent gangs: the Bloods and Crips. Baseball caps, gloves and bandannas are deemed gang related attire by high schools around the country, as well as collegiate logos. A male student wearing an earring, or allowing a shoelace to go untied, is engaging in actions considered gang related. Even a student who innocently refers to classmates as \u201cfolks\u201d or \u201cpeople\u201d is unwittingly speaking in the parlance of the Midwestern gangs \u201cVic Lords\u201d and \u201cBlack Gangster Disciples.\u201d In short, a male student walking the halls of a District school with untied shoelaces, a Duke University baseball cap and a cross earring potentially violates the District regulation in four ways.\nId. at 1311 (emphasis added) (internal citations omitted). The court, therefore, ruled that \u201cthe District regulation violates the central purposes of the vagueness doctrine because it fails to provide adequate notice regarding unacceptable conduct and fails to offer clear guidance for those who apply it. A person of common intelligence must necessarily guess at the undefined meaning of \u2018gang related activities.\u2019 \u201d Id.\nOther courts have reached the same conclusion. See Hodge v. Lynd, 88 F. Supp. 2d 1234, 1245 (D.N.M. 2000) (holding that county fair\u2019s policy banning the wearing of clothing that could be indicator of gang activity did not \u201cin any way specif[y] what is meant by gang activity, gang symbols, or gang-related apparel\u201d and that \u201c[d]ue to this lack of specificity, enforcement of the dress code is left to the unfettered discretion of individual officers\u201d); Chalifoux v. New Caney Independent Sch. Dist., 976 F. Supp. 659, 669 (S.D. Tex. 1997) (holding that school policy that prohibited the wearing of \u201cgang-related apparel\u201d was unconstitutionally vague because it lacked a sufficient definition of such apparel); City of Harvard v. Gaut, 277 Ill. App. 3d 1, 7, 660 N.E.2d 259, 263 (1996) (holding that ordinance prohibiting persons from wearing known gang colors, emblems or other insignia \u201cis not merely broad, but open-ended and potentially limitless\u201d).\nThe sole case cited by the Board as upholding a gang policy is Fuller v. Decatur Pub. Sch. Bd. of Educ. Sch. Dist., 251 F.3d 662 (7th Cir. 2001). In Fuller, the plaintiffs were expelled as a result of a fight at a football game between two rival street gangs. Id. at 663-64. Although the plaintiffs contended that the school policy prohibiting \u201cgang-like activity\u201d was unconstitutionally vague, the court noted: \u201cWhatever is true of other rules, [the policy in that case] is not devoid of standards. It delineates specific activities which are covered by the rule: recruiting students for membership in a gang, threatening or intimidating other students to commit acts or omissions against their will in furtherance of the purpose of the gang.\u201d Id. at 666. The court differentiated the policy from that in Stephenson \u201cwhich [was] directed at gang-related activities such as \u2018display of \u201ccolors\u201d, symbols, signals, signs, etc.\u2019 \u2014 activities more likely to implicate First Amendment rights.\u201d Id. (quoting Stephenson, 110 F.3d at 1303).\nThis case, in contrast to Fuller, involves a policy almost identical to the one in Stephenson. The Board has not cited any decision upholding a policy comparable to Rule 10 as adopted by the Board.\nThe Board, however, asserts that a list exists of prohibited items, symbols, and conduct and argues that this list both ensures that students have notice of prohibited conduct and dress and limits the discretion of school administrators enforcing the policy. See Chalifoux, 976 F. Supp. at 668 (holding that it would not \u201cbe overly burdensome for the District to provide a definite list of prohibited items and to update that list as needed\u201d). According to Rule 10, this list must be maintained in the principal\u2019s office and must be included in the student handbook. Amici, however, correctly note that this list is not part of the record before this Court and assert that the student handbook in fact merely recites Rule 10 without including the list of the prohibited items, symbols, and conduct.\nBased upon our review of the record, we believe that the constitutionality of Rule 10 cannot be decided without review of the list and consideration whether proper notice has been given to students of Rule 10 and the list. Yet, neither the student handbook nor the list of prohibited items required by the policy are included in the complaint, defendants\u2019 Rule 12(b)(6) motion, or anywhere else in the record on appeal. Although amici, in their brief, ask us to take judicial notice of the student handbook to determine the constitutionality of the gang policy, we cannot do so. See Horton v. New South Ins. Co., 122 N.C. App. 265, 268, 468 S.E.2d 856, 858 (holding that \u201cwe will not take judicial notice of a document outside the record when no effort has been made to include it\u201d), cert. denied and disc. review denied, 343 N.C. 511, 472 S.E.2d 8 (1996).\nWe note that the arguments of the Board and the amici underscore the need to focus on the procedural posture of this case: the trial court dismissed the claim under Rule 12(b)(6). None of the cases relied upon by the parties involved such an early stage of the proceedings when the record has not yet been developed. See Fuller, 251 F.3d at 664 (appeal from decision following bench trial); Stephenson, 110 F.3d at 1306 (appeal from summary judgment order); Chalifoux, 976 F. Supp. at 663 (decision following bench trial).\nIn this case, plaintiffs\u2019 allegations in combination with the actual provisions of the Board\u2019s policy are sufficient to state a claim that the policy is unconstitutionally vague. The Board may be able to demonstrate at the summary judgment stage that proper notice is supplied to the students sufficient to eliminate any constitutional concerns. At the Rule 12(b)(6) stage, however, the Board has not established that plaintiffs have failed to state a claim for relief. Accordingly, we reverse that portion of the trial court\u2019s order dismissing plaintiffs\u2019 claim that the gang policy is unconstitutionally vague and remand for further proceedings.\nConclusion\nWe deny defendants\u2019 motion to dismiss the appeal, but sanction plaintiffs\u2019 counsel by requiring counsel to pay the printing costs'of the appeal. We affirm the trial court\u2019s dismissal of plaintiffs\u2019 procedural due process claims with the exception of the claims brought on behalf of Todd Douglas regarding his long-term suspension. We reverse as to the Douglas procedural due process claim under \u00a7 1983 against Denlinger and under the North Carolina constitution against the Board and remand for further proceedings. We affirm the trial court\u2019s dismissal of plaintiffs\u2019 equal protection claims, but reverse the dismissal of plaintiffs\u2019 claim for declaratory relief regarding the Board\u2019s gang policy.\nAffirmed in part; reversed in part.\nJudge HUNTER concurs.\nJudge TYSON concurs in part and dissents in part in a separate opinion.\n. Although we note plaintiffs\u2019 brief does contain facts relating to Rhodes in the fact section, there is no corresponding legal argument as to why the complaint states a claim for relief as to Rhodes. Those claims, therefore, are not properly before us.\n. Defendants also point to other violations by plaintiffs of the appellate rules, including the failure to serve the initial proposed record on all parties, incorrect record references following the assignments of error, and the omission of the certification required by N.C.R. App. P. 28(j)(2)(A)(2). We do not specifically address these violations, although we note their existence.\n. This conclusion is confirmed by the Supreme Court\u2019s clarifying amendment of Rule 11(c), applicable to appeals filed on or after 1 March 2007, which states: \u201cIf any appellee timely serves amendments, objections, or a proposed alternative record on appeal, and no judicial settlement of the record is timely sought, the record is deemed settled as of the expiration of the ten-day period within which any party could have requested judicial settlement of the record on appeal under this Rule 11(c).\u201d\n. Under Rule 2 of the Rules of Appellate Procedure, \u201c[t]o prevent manifest injustice to a party, or to expedite decision in the public interest, either court of the appellate division may, except as otherwise expressly provided by these rules, suspend or vary the requirements or provisions of any of these rules in a case pending before it upon application of a party or upon its own initiative . . . .\u201d N.C.R. App. P. 2. In Dogwood, however, the Supreme Court noted that even if Rule 2 is unavailable, other \u201cdiscretionary avenues of appellate jurisdiction\u201d may be available under Rule 21. 362 N.C. at 197 n.3, 657 S.E.2d at 365 n.3.\n. We note that this Court recently held that \u201ca plaintiff must be allowed to pursue claims for the same alleged wrong under both the constitution and state law where one could produce only equitable relief and the other could produce only monetary damages----\u201d Carl v. State, 192 N.C. App. 544, 555-56, 665 S.E.2d 787, 796 (2008).\n. With respect to Dion Warren, plaintiffs do allege that a teacher \u2014 not a defendant in this case \u2014 did not equally enforce rules against white students and that two female Caucasian students engaged in arguably similar behavior to that of Dion Warren, but were not disciplined. Dion Warren\u2019s claims are not, however, properly before this Court.\n. We also note that the complaint contains numerous allegations regarding an altercation between Ivey Brooks and plaintiffs Copper, Jenkins, and Johnson in the school lobby. Although the complaint contrasts Brooks\u2019 treatment by school administrators with that of Copper, Jenkins, and Johnson, the complaint does not indicate Brooks\u2019 race apart from an allegation that a school resource officer labeled Brooks as a member of the Blood gang. If Brooks is Caucasian, then, as with Solari, the complaint would suggest that Caucasian students are also subjected to false labeling as gang members. On the other hand, if Brooks is African-American, then the allegations that Brooks was treated more favorably than Copper, Jenkins, and Johnson is inconsistent with the allegations of racial discrimination.", "type": "majority", "author": "GEER, Judge." }, { "text": "TYSON, Judge\nconcurring in part and dissenting in part.\nI concur with that portion of the majority\u2019s opinion which: (1) affirms the trial court\u2019s dismissal of Plaintiff Angel\u00ed Copper, Desmond Johnson, Eric Warren, Joshua Thorpe, and Jazmyn Jenkins\u2019 procedural due process claims; (2) affirms the trial court\u2019s dismissal of all of plaintiffs\u2019 equal protection claims; and (3) reverses the dismissal of plaintiffs\u2019 claim for declaratory relief. I disagree with that portion of the majority\u2019s opinion which reverses Todd Douglas\u2019 (\u201cDouglas\u201d) procedural due process claims against Ann T. Denlinger (\u201cDenlinger\u201d), in her individual capacity, pursuant to 42 U.S.C. \u00a7 1983 and the Durham Public School Board of Education (\u201cSchool Board\u201d) pursuant to the North Carolina Constitution. I respectfully dissent.\nI. Standard of Review\nOn a motion to dismiss pursuant to Rule 12(b)(6) of the North Carolina Rules of Civil Procedure, the standard of review is whether, 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. The complaint must be liberally construed, and the court should not dismiss the complaint unless it appears beyond a doubt that the plaintiff could not prove any set of facts to support his claim which would entitle him to relief.\nHunter v. Guardian Life Ins. Co. of Am., 162 N.C. App. 477, 480, 593 S.E.2d 595, 598 (internal citations and quotation omitted), disc. rev. denied, 358 N.C. 543, 599 S.E.2d 49 (2004). This Court is not required \u201c \u2018to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences.\u2019 \u201d Good Hope Hosp., Inc. v. N.C. Dep\u2019t of Health & Human Servs., 174 N.C. App. 266, 274, 620 S.E.2d 873, 880 (2005) (quoting Veney v. Wyche, 293 F.3d 726, 730 (4th Cir. 2002)). \u201cThis Court must conduct a de novo review of the pleadings to determine their legal sufficiency and to determine whether the trial court\u2019s ruling on the motion to dismiss was correct.\u201d Leary v. N.C. Forest Prods., Inc., 157 N.C. App. 396, 400, 580 S.E.2d 1, 4, aff\u2019d, 357 N.C. 567, 597 S.E.2d 673 (2003).\nII. Douglas\u2019 42 U.S.C. $ 1983 claim\nThe majority\u2019s opinion holds the trial court erred by dismissing Douglas\u2019 long-term suspension claim brought against Denlinger, in her individual capacity, pursuant to 42 U.S.C. \u00a7 1983.1 disagree.\nA. Federal Procedural Due Process\nSection 1983 of Title 42 of the United States Code provides, in part:\nEvery person who, under color of any statute, ordinance, regulation, custom or usage of any State . . . 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 [United States] 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. \u00a7 1983 (2000) (emphasis supplied). Our Supreme Court has stated, \u201c[t]o state a claim under Section 1983, a plaintiff must show actual deprivation of a federal right under color of law. Federal rights are those secured by the United States Constitution and federal statutes.\u201d Edward Valves, Inc. v. Wake County, 343 N.C. 426, 432, 471 S.E.2d 342, 346 (1996) (internal citation and quotation omitted) (emphasis supplied), cert. denied, 519 U.S. 1112, 136 L. Ed. 2d 839 (1997).\n\u201cThe United States Supreme Court has stated that a student facing suspension has a property interest that qualifies for protection under the Due Process Clause of the Fourteenth Amendment.\u201d In re Roberts, 150 N.C. App. 86, 91-92, 563 S.E.2d 37, 41 (2002) (citing Goss v. Lopez, 419 U.S. 565, 576, 42 L. Ed. 2d 725, 735-36 (1975)), disc. rev. improvidently allowed and appeal dismissed, 356 N.C. 660, 576 S.E.2d 327, cert. denied, 540 U.S. 820, 157 L. Ed. 2d 38 (2003). \u201cAt the very minimum . . . students facing suspension and the consequent interference with a protected property interest must be given some kind of notice and afforded some kind of hearing.\u201d Goss, 419 U.S. at 579, 42 L. Ed. 2d at 737. However, \u201c[l]onger suspensions or expulsions for the remainder of the school term, or permanently, may require more formal procedures.\u201d Id. at 584, 42 L. Ed. 2d at 740.\nIn In re Roberts, this Court stated, with respect to long-term suspensions, \u201c[t]he protections of due process require that petitioner be apprised of the evidence received and given an opportunity to explain or rebut it.\u201d 150 N.C. App. at 92-93, 563 S.E.2d at 42 (citing Givens v. Poe, 346 F. Supp. 202, 209 (W.D.N.C. 1972)). Based upon the particular facts of In re Roberts, i.e., where the respondent sought to impose a long-term suspension and the Board Policy specifically provided for a factual hearing before the Hearing Board, this Court held the petitioner was entitled to \u201chave the opportunity to have counsel present, to confront and cross-examine witnesses supporting the charge, or to call his own witnesses to verify his version of the incident.\u201d 150 N.C. App. at 93, 563 S.E.2d at 42. Although the holding in In re Roberts was limited to those particular facts, this Court subsequently stated:\nwhen a school board seeks to impose a long-term suspension, a student not only has the right to notice and an opportunity to be heard, the student also has the right to a full hearing, an opportunity to have counsel present at the hearing, to examine evidence and to present evidence, to confront and cross-examine witnesses supporting the charge, and to call his own witnesses to verify his version of the incident.\nIn re Alexander v. Cumberland Cty Bd. of Educ., 171 N.C. App. 649, 657, 615 S.E.2d 408, 415 (2005) (citing In re Roberts, 150 N.C. App. at 92-93, 563 S.E.2d at 42).\nB. Failure to State a Claim\nWe must now examine whether the allegations contained in plaintiffs\u2019 complaint are sufficient to state a federal procedural due process claim against Denlinger, in her individual capacity, pursuant to 42 U.S.C. \u00a7 1983. The majority\u2019s opinion holds the trial court erred by dismissing Douglas\u2019 long-term suspension claim against Denlinger based upon the following allegations contained in plaintiffs\u2019 complaint: (1) \u201cDenlinger purposely postdated her letter October 8 [DAY 9] to cut off [Douglas\u2019] right to appeal\u201d and (2) Denlinger\u2019s October 8 letter was a \u201clie.\u201d I disagree with the majority\u2019s analysis. Any alleged interference with Douglas\u2019 \u201cright to appeal\u201d is insufficient to establish a violation of federal procedural due process under \u201cthe United States Constitution\u201d or \u201cfederal statutes.\u201d Edward Valves, Inc., 343 N.C. at 432, 471 S.E.2d at 346. Our Supreme Court has stated \u201cthe question [of] whether the right of appeal is essential to due process of law . . . has frequently been considered by the courts and answered in the negative.\u201d Gunter v. Sanford, 186 N.C. 452, 457-58, 120 S.E. 41, 44 (1923). \u201cDue process of law ... is not necessarily judicial process, and to due process the right of appeal is not essential.\u201d Id. at 458, 120 S.E. at 44.\nThe procedures to be used in appealing a long-term suspension are statutorily outlined in the North Carolina General Statutes. See N.C. Gen. Stat. \u00a7 115C-391 (2003). Douglas\u2019 \u201cright to appeal\u201d is provided by state statutory law, not federal constitutional law. The allegations in plaintiffs\u2019 complaint are insufficient to state a federal procedural due process claim against Denlinger pursuant to 42 U.S.C. \u00a7 1983 and were properly dismissed.\nAlternatively, I would hold that the preceding allegations are nothing more than \u201cunreasonable inferences\u201d based upon the other allegations contained in plaintiffs\u2019 complaint. Good Hope Hosp., Inc., 174 N.C. App. at 274, 620 S.E.2d at 880. Plaintiffs\u2019 complaint alleged Douglas\u2019 mother, Mrs. Smith, met with school administrators on multiple occasions after being notified that Douglas was being suspended from school based upon his gang affiliation. On 8 October 2003, a school counselor delivered a letter to Douglas, which was signed by Denlinger and stated \u201cafter \u2018careful review\u2019 of [Douglas\u2019] school records,\u201d Denlinger believed Douglas presented a danger to the school. The 8 October letter further stated that Denlinger had approved the principal\u2019s request for Douglas to transfer from Southern High School to Lakeview High School \u201ceffective immediately.\u201d Plaintiffs\u2019 complaint does not allege that Denlinger\u2019s 8 October letter addressed Douglas\u2019 suspension or his right to appeal. Further, plaintiffs\u2019 complaint does not contain any other allegation sufficient to support the inference that Denlinger informed Mrs. Smith that Douglas did not have the right to appeal a short-term suspension, by letter or any other means of communication. The record shows after Mrs. Smith had retained counsel, met with various administrators, and received the 8 October letter, no further appeal was sought on any basis, nor was there any legal action taken until nearly three years later with the commencement of this lawsuit.\nNothing in the record supports the allegations that Denglinger\u2019s 8 October letter was designed to \u201ccut off\u2019 Douglas\u2019 right to appeal or that it was a \u201clie.\u201d These allegations are nothing more than \u201cunreasonable inferences\u201d that should be disregarded by this Court. Good Hope Hosp., Inc., 174 N.C. App. at 274, 620 S.E.2d at 880. The trial court correctly found that plaintiffs, including Douglas, failed to state a federal procedural due process claim against Denlinger, in her individual capacity, pursuant to 42 U.S.C. \u00a7 1983. The trial court\u2019s ruling on this issue should be affirmed. Based upon this analysis, it is unnecessary to address whether Denlinger was entitled to qualified immunity or whether Douglas\u2019 42 U.S.C. \u00a7 1983 claim survived his death. See N.C. Gen. Stat. \u00a7 28A-18-1 (2003).\nIII. Douglas\u2019 State Constitutional Claim\nThe majority\u2019s opinion further holds that the trial court erred by dismissing Douglas\u2019 long-term suspension claim against the School Board pursuant to the North Carolina Constitution. I disagree.\nHere, the trial court\u2019s order stated the following in regards to plaintiffs\u2019 state constitutional claims:\n5. State law provides a remedy for challenging final administrative decisions that allegedly violate federal or state statutory or constitutional law or board policy and for challenging long-term suspension or expulsion decisions. North Carolina Gen. Stat. \u00a7 115C-45(c) grants students the right to appeal final administrative decisions to the board of education. North Carolina Gen. Stat. \u00a7 115C-391(e) grants the right to appeal a long-term suspension or expulsion to the board of education. Under both statutes, the board\u2019s decision is subject to judicial review in accordance with Article 4 of Chapter 150B of the General Statutes. .Plaintiffs cannot bring direct claims under the North Carolina Constitution when there is an adequate state remedy available. Adequate state remedies were available to plaintiffs for their state constitutional claims; therefore, plaintiffs\u2019 state constitutional claims for violations of their procedural due process and equal educational opportunity rights are DISMISSED.\nIn a separate section of its order, the trial court also dismissed plaintiffs\u2019 procedural due process claims and equal educational opportunity rights based upon plaintiffs\u2019 failure to allege that they had exhausted their administrative remedies or that these remedies were inadequate. The trial court\u2019s order can be read as dismissing plaintiffs\u2019 procedural due process claims under the North Carolina Constitution on two alternative and equally valid bases. Plaintiffs have failed to overcome the presumption of correctness in the trial court\u2019s order or to show reversible error on this issue.\nThe majority\u2019s opinion acknowledges in two separate instances that plaintiffs failed to assign error to or argue the issue of whether the trial court erred in holding adequate alternative state remedies existed to preclude plaintiffs\u2019 state constitutional procedural due process claims. When addressing plaintiffs\u2019 short-term suspensions under the North Carolina Constitution, the majority\u2019s opinion states:\nAlthough plaintiffs addressed the trial court\u2019s separate conclusion that plaintiffs\u2019 claims were barred by a failure to exhaust their administrative remedies, plaintiffs\u2019 brief does not contain any specific argument regarding the trial court\u2019s determination that adequate alternative remedies exist. Even if plaintiffs\u2019 assignments of error could be construed as assigning error to this particular conclusion of law, Rule 28(b)(6) provides that \u201c[assignments of error... in support of which no reason or argument is stated or authority cited, will be taken as abandoned.\u201d\n(Emphasis supplied). When addressing plaintiffs\u2019 long-term suspensions under the North Carolina Constitution, the majority\u2019s opinion also states: \u201cThe trial court dismissed plaintiffs\u2019 state constitutional claims based on long-term suspensions on the grounds that (1) an adequate alternative state remedy existed and (2) plaintiffs had failed to exhaust their administrative remedies. Plaintiffs only assigned error to the exhaustion basis for the trial court\u2019s dismissal.\u201d\nBecause plaintiffs\u2019 failed to challenge the trial court\u2019s dismissal of plaintiffs\u2019 state constitutional procedural due process claims on the basis that an adequate alternative state remedy existed, this issue is not properly before this Court and the trial court\u2019s ruling remains undisturbed. See N.C.R. App. P. 28(b)(6) (2007) (\u201cAssignments of error not set out in the appellant\u2019s brief . . . will be taken as abandoned.\u201d). It is well-established that \u201c[a] claim under our state constitution is available only \u2018in the absence of an adequate state remedy.\u2019 \u201d Craig v. New Hanover Cty Bd. of Educ., 185 N.C. App. 651, 655, 648 S.E.2d 923, 926 (2007) (quoting Corum v. University of North Carolina, 330 N.C. 761, 782, 413 S.E.2d 276, 289 (1992)), disc. rev. denied, 362 N.C. 234, 659 S.E.2d 439 (2008). The trial court properly dismissed Douglas\u2019 state constitutional claim. Plaintiffs have brought forth no argument on appeal to reverse this ruling. The majority\u2019s opinion erroneously reverses the dismissal of Douglas\u2019 state constitutional due process claim against the School Board.\nIV. Conclusion\nAny alleged interference with Douglas\u2019 state statutory \u201cright to appeal\u201d is insufficient to establish a violation of federal procedural due process under the United States Constitution or federal statutes. Gunter, 186 N.C. at 458, 120 S.E. at 44. Alternatively, the allegations that Denlinger\u2019s 8 October letter \u201ccut off\u2019 Douglas\u2019 right to appeal and was a \u201clie\u201d were, at most, \u201cunreasonable inferences\u201d based upon the other allegations contained in plaintiffs\u2019 complaint and should be disregarded by this Court. Good Hope Hosp., Inc., 174 N.C. App. at 274, 620 S.E.2d at 880. The trial court properly dismissed Douglas\u2019 federal procedural due process claim against Denlinger, in her individual capacity, pursuant to 42 U.S.C. \u00a7 1983.\nPlaintiffs\u2019 failed to challenge the trial court\u2019s dismissal of plaintiffs\u2019 state constitutional procedural due process claims on the basis that an adequate alternative state remedy existed. This issue is not properly before this Court and the trial court\u2019s ruling remains undisturbed. N.C.R. App. P. 28(b)(6). Plaintiffs have brought forth no argument on appeal to reverse this ruling. The majority\u2019s opinion erroneously reverses the dismissal of Douglas\u2019 state constitutional procedural due process claim against the School Board. I respectfully dissent.", "type": "concurring-in-part-and-dissenting-in-part", "author": "TYSON, Judge" } ], "attorneys": [ "Frances P. Solari for plaintiff s-appellants.", "Cranfill Sumner & Hartzog LLP, by Ann S. Estridge, Alycia S. Levy, and Dan M. Hartzog, Jr., for defendant-appellee Ann T. Denlinger.", "Tharrington Smith, L.L.P., by Ann L. Majestic and Christine T. Scheef for defendants-appellees The Durham Public School Board of Education, Gail Heath, Heidi Carter, Steve Martin, Steve Schewel, Larry McDonald, Richard Webber, and Rodriquez Teal.", "Jack Holtzman for amicus curiae North Carolina Justice Center.", "Lynn Fontana for amicus curiae ACLU of North Carolina Legal Foundation.", "Lewis Pitts for amicus curiae Advocates for Children\u2019s Services of Legal Aid of North Carolina.", "Ashley Osment for amici curiae North Carolina State Conference of NAACP Branches and the Triangle Lost Generation Task Force.", "Sheria Reid for amicus curiae The North Carolina Black Leadership Caucus." ], "corrections": "", "head_matter": "ANGELL COPPER, by his mother and guardian ad litem, Sherry Copper; DESMOND JOHNSON, by his father and guardian ad litem, Wilmer Johnson; ERIC WARREN and DION WARREN, by their mother and guardian ad litem, Deann Warren; JOSHUA THORPE, by his mother and guardian ad litem, Treco Thorpe; TODD DOUGLAS, DECEASED, BY HIS MOTHER AND ADMINISTRATRIX OF HIS ESTATE, SHERYL SMITH; DEANTONIO RHODES, by his mother and guardian ad litem, Linda Rhodes; JAZMYN JENKINS; and GINA SOLARI; as individuals and as representatives of THE CLASS OF SIMILARLY SITUATED DURHAM PUBLIC SCHOOL STUDENTS, PLAINTIFFS v. ANN T. DENLINGER, individually and as Superintendent of Durham Public Schools; THE DURHAM PUBLIC SCHOOL BOARD OF EDUCATION; GAIL HEATH, individually and as Chair of the Durham Public School Board of Education; HEIDI CARTER, STEVE MARTIN and STEVE SCHEWEL, individually and as members of the Durham Public School Board of Education; LARRY MCDONALD, individually and as former Principal of Southern High School; RICHARD WEBBER, individually and as Principal of C.E. Jordan High School; RODRIQUEZ TEAL, individually and as Principal of Southern High School; WORTH HILL, Durham County Sheriff; and R.A. SIPPLE and JOSEPH COSTA, individually, as agents and employees of the Durham County Sheriff, as agents of the Superintendent of Durham Public Schools, and as agents of the Durham Public School Board of Education, Defendants\nNo. COA07-205\n(Filed 21 October 2008)\n1. Appeal and Error\u2014 record \u2014 not timely filed \u2014 sanctions\nDefendants\u2019 motion to dismiss plaintiff\u2019s appeal for failure to timely file the record on appeal was denied because the violation did not hinder review of the merits of the case or impair the adversarial process, but printing costs were assessed as a sanction against plaintiff\u2019s counsel.\n2. Schools and Education\u2014 suspensions \u2014 no right to appeal\u2014 civil rights claim \u2014 exhaustion of administrative remedies\nThe trial court erred by dismissing plaintiffs\u2019 42 U.S.C. \u00a7 1983 claims as to short-term school suspensions for gang activity for failure to exhaust administrative remedies. Plaintiffs\u2019 allegations that the board of education\u2019s current policy does not provide the right to appeal are sufficient to allege futility with respect to the short-term suspensions.\n3. Schools and Education\u2014 short-term suspensions \u2014 gang activity \u2014 liability of superintendent \u2014 no allegations of knowledge\nThe trial court properly granted a Rule 12(b)(6) motion to dismiss a complaint against a school superintendent concerning short-term suspensions for gang activity where plaintiffs alleged that the superintendent was liable under 42 U.S.C \u00a7 1983 as a supervisory official, but there were no allegations that she was deliberately indifferent to any procedural due process violations by principals when imposing short-term suspensions. Although plaintiffs on appeal raised a respondeat superior theory, they were not able to point to allegations of the superintendent having the required knowledge of the short-term suspensions.\n4. Civil Rights\u2014 short-term school suspensions \u2014 allegations not sufficient\nThe trial court did not err in dismissing plaintiffs\u2019 claims' against a board of education under 42 U.S.C. \u00a7 1983 for short-term suspensions for gang activity. Plaintiffs have provided no argument on appeal as to why the complaint\u2019s allegations are sufficient to establish the board\u2019s liability for procedural due process violations under Monell v. New York City Department of Social Services, 436 U.S. 658.\n5. Schools and Education\u2014 short-term suspensions \u2014 gang activity \u2014 allegations that board policy violated \u2014 not violations of due process\nThe trial court properly granted defendants\u2019 Rule 12(b)(6) motion to dismiss plaintiffs\u2019 state constitutional claims with respect to short-term suspensions for gang activity. Plaintiffs contended that the school principals\u2019 failure to comply with school board policies violated their procedural due process rights, but it has been held that the school is only required to give students notice of the charges against them and an opportunity to be heard. Plaintiffs failed to allege facts establishing that their procedural due process rights were violated as opposed to the board\u2019s policies. N.C. Const, art. I, \u00a7 19.\n6. Schools and Education\u2014 long-term suspensions \u2014 gang activity \u2014 \u00a7 1983 claim \u2014 exhaustion of administrative remedies \u2014 futility\nA complaint containing a claim under 42 U.S.C. \u00a7 1983 arising from long-term school suspensions for gang activity contained sufficient allegations that exhaustion of administrative remedies under N.C.G.S. \u00a7 115C-45(c) was futile for plaintiff Douglas, and the trial court erred by dismissing his claim, but the allegations as to the remaining plaintiffs were not sufficient. The dismissal of their procedural due process claims based on long-term suspensions were upheld.\n7. Constitutional Law\u2014 long-term school suspensions \u2014 gang activity \u2014 exhaustion of administrative remedies \u2014 futility \u2014 sufficiency of allegations\nA complaint raising North Carolina constitutional claims arising from long-term school suspensions for gang activity failed to allege sufficient facts to establish futility in the exhaustion of administrative remedies except as to plaintiff Douglas. The trial court did not err by dismissing those claims.\n8. Schools and Education\u2014 long-term suspensions \u2014 gang activity \u2014 lack of opportunity to appeal \u2014 procedural due process\nPlaintiff Douglas\u2019s complaint, arising from a long-term school suspension for gang activity, sufficiently alleged a claim against defendant board of education that his right to procedural due process was denied through lack of an opportunity to appeal the suspension, and the trial court erred by dismissing his claim. However, plaintiffs failed to make an argument as to how the complaint in this instance complied with the requirements for a 42 U.S.C. \u00a7 1983 claim, and that claim was properly dismissed.\n9. Civil Rights\u2014 gang related school suspension \u2014 claim against superintendent\nThe trial court erred by dismissing plaintiff Douglas\u2019s claim under 42 U.S.C. \u00a7 1983 against a school superintendent in her individual capacity for a long-term suspension arising from gang activity. Defendants\u2019 contention would require that the evidence be viewed in the light most favorable to the moving party, which is precluded when deciding a Rule 12(b)(6) motion.\n10. Civil Rights\u2014 gang-related school suspension \u2014 claim against superintendent \u2014 qualified immunity\nThe trial court should not have granted a Rule 12(b)(6) dismissal of plaintiff Douglas\u2019s 42 U.S.C. \u00a7 1983 claim against a school superintendent for a suspension arising from gang activity based on qualified immunity The question of qualified immunity cannot be resolved in this case at this stage.\n11. Civil Rights\u2014 gang-related school suspension \u2014 claim against superintendent \u2014 punitive damages\nA complaint sufficiently alleged a claim for punitive damages under 42 U.S.C. \u00a7 1983 against a school superintendent arising from a student\u2019s long-term suspension for gang activity.\n12. Constitutional Law\u2014 school suspensions \u2014 equal protection\nAllegations of general bias in an equal protection claim cannot substitute for allegations that the discipline of each individual plaintiff at school was motivated by racial discrimination (where there was no class certification).\n13. Constitutional Law\u2014 school suspensions \u2014 racial profiling\nThe trial court did not err by dismissing plaintiffs\u2019 equal protection claims based on allegations of profiling in gang-related school discipline. The complaint does not contain any allegation that plaintiffs were falsely accused of gang membership, and the paragraphs of the complaint cited to support racial profiling did not specifically relate to any of the plaintiffs.\n14. Schools and Education\u2014 school board policy \u2014 gang related suspensions \u2014 vagueness\nPlaintiffs sufficiently stated a claim that a school board\u2019s policy concerning discipline for gang involvement was facially unconstitutional for vagueness, and the Rule 12(b)(6) dismissal of their claim was reversed and remanded. However, the constitutionality of the policy cannot be decided without review of a list of prohibited items kept by principals and included in a student handbook, and the matter is remanded for further proceedings.\nJudge Tyson concurring in part and dissenting in part.\nAppeal by plaintiffs from order entered 5 October 2006 by Judge Orlando Hudson in Durham County Superior Court. Heard in the Court of Appeals 13 September 2007.\nFrances P. Solari for plaintiff s-appellants.\nCranfill Sumner & Hartzog LLP, by Ann S. Estridge, Alycia S. Levy, and Dan M. Hartzog, Jr., for defendant-appellee Ann T. Denlinger.\nTharrington Smith, L.L.P., by Ann L. Majestic and Christine T. Scheef for defendants-appellees The Durham Public School Board of Education, Gail Heath, Heidi Carter, Steve Martin, Steve Schewel, Larry McDonald, Richard Webber, and Rodriquez Teal.\nJack Holtzman for amicus curiae North Carolina Justice Center.\nLynn Fontana for amicus curiae ACLU of North Carolina Legal Foundation.\nLewis Pitts for amicus curiae Advocates for Children\u2019s Services of Legal Aid of North Carolina.\nAshley Osment for amici curiae North Carolina State Conference of NAACP Branches and the Triangle Lost Generation Task Force.\nSheria Reid for amicus curiae The North Carolina Black Leadership Caucus." }, "file_name": "0249-01", "first_page_order": 281, "last_page_order": 325 }