{ "id": 4151199, "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 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", "name_abbreviation": "Copper ex rel. Copper v. Denlinger", "decision_date": "2010-01-29", "docket_number": "No. 526A08", "first_page": "784", "last_page": "793", "citations": [ { "type": "official", "cite": "363 N.C. 784" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "667 S.E.2d 470", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12642110 ], "year": 2008, "opinion_index": -1, "case_paths": [ "/se2d/667/0470-01" ] }, { "cite": "193 N.C. App. 249", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4162227 ], "year": 2008, "opinion_index": -1, "case_paths": [ "/nc-app/193/0249-01" ] }, { "cite": "626 S.E.2d 263", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12635149 ], "year": 2006, "pin_cites": [ { "page": "266", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/626/0263-01" ] }, { "cite": "667 S.E.2d 470", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12642110 ], "weight": 3, "year": 2008, "pin_cites": [ { "page": "495" }, { "page": "495" } ], "opinion_index": 0, "case_paths": [ "/se2d/667/0470-01" ] }, { "cite": "599 S.E.2d 888", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "895-97" } ], "opinion_index": 0 }, { "cite": "358 N.C. 649", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2987357 ], "year": 2004, "pin_cites": [ { "page": "661-64" } ], "opinion_index": 0, "case_paths": [ "/nc/358/0649-01" ] }, { "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, 8913190, 8913702, 8913800, 8913672, 8913578, 8913448, 8913517, 8913742, 8913846, 8913624, 8913307 ], "year": 2003, "opinion_index": 0, "case_paths": [ "/us/540/0820-02", "/us/540/0820-04", "/us/540/0820-01", "/us/540/0820-10", "/us/540/0820-12", "/us/540/0820-09", "/us/540/0820-07", "/us/540/0820-05", "/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, "pin_cites": [ { "page": "328" } ], "opinion_index": 0 }, { "cite": "356 N.C. 660", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511386 ], "year": 2003, "pin_cites": [ { "page": "660" } ], "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": "citation omitted" } ], "opinion_index": 0 }, { "cite": "150 N.C. App. 86", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9079862 ], "year": 2002, "pin_cites": [ { "page": "93", "parenthetical": "citation omitted" } ], "opinion_index": 0, "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": "581" }, { "page": "739" }, { "page": "579" }, { "page": "737", "parenthetical": "stating that, at a minimum, a student's constitutionally protected property interest in a public education may not be taken away without \"some kind of notice\" and \"some kind of hearing\"" }, { "page": "584" }, { "page": "740", "parenthetical": "emphasis added" } ], "opinion_index": 0, "case_paths": [ "/us/419/0565-01" ] }, { "cite": "136 L. Ed. 2d 839", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1997, "opinion_index": 0 }, { "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": "471 S.E.2d 342", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "347", "parenthetical": "quoting Zinermon with approval and holding that a plaintiff need not exhaust administrative remedies when seeking redress for a substantive constitutional violation" } ], "opinion_index": 0 }, { "cite": "343 N.C. 426", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 798949 ], "year": 1996, "pin_cites": [ { "page": "434-35", "parenthetical": "quoting Zinermon with approval and holding that a plaintiff need not exhaust administrative remedies when seeking redress for a substantive constitutional violation" } ], "opinion_index": 0, "case_paths": [ "/nc/343/0426-01" ] }, { "cite": "457 U.S. 496", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6191246 ], "weight": 2, "year": 1982, "pin_cites": [ { "page": "516", "parenthetical": "holding that, generally, \"exhaustion of state administrative remedies should not be required as a prerequisite to bringing an action pursuant to \u00a7 1983\"" }, { "page": "188", "parenthetical": "holding that, generally, \"exhaustion of state administrative remedies should not be required as a prerequisite to bringing an action pursuant to \u00a7 1983\"" } ], "opinion_index": 0, "case_paths": [ "/us/457/0496-01" ] }, { "cite": "474 U.S. 327", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6204748 ], "weight": 2, "year": 1986, "pin_cites": [ { "page": "330-31" }, { "page": "667-68" } ], "opinion_index": 0, "case_paths": [ "/us/474/0327-01" ] }, { "cite": "451 U.S. 527", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6188807 ], "weight": 2, "year": 1981, "pin_cites": [ { "page": "543" }, { "page": "433-34" } ], "opinion_index": 0, "case_paths": [ "/us/451/0527-01" ] }, { "cite": "494 U.S. 113", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 5347 ], "weight": 6, "year": 1990, "pin_cites": [ { "page": "126", "parenthetical": "emphasis added" }, { "page": "114", "parenthetical": "emphasis added" }, { "page": "125" }, { "page": "114", "parenthetical": "\"In procedural due process claims, the deprivation by state action of a constitutionally protected interest in 'life, liberty, or property' is not in itself unconstitutional; what is unconstitutional is the deprivation of such an interest without due process of law.\" (emphasis added" }, { "page": "126" }, { "page": "114" } ], "opinion_index": 0, "case_paths": [ "/us/494/0113-01" ] }, { "cite": "678 S.E.2d 351", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2009, "pin_cites": [ { "page": "355", "parenthetical": "noting that \"an adequate remedy must provide the possibility of relief under the circumstances.\" (emphasis added)" }, { "page": "355" } ], "opinion_index": 0 }, { "cite": "363 N.C. 334", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4151090 ], "weight": 2, "year": 2009, "pin_cites": [ { "page": "340", "parenthetical": "noting that \"an adequate remedy must provide the possibility of relief under the circumstances.\" (emphasis added)" }, { "page": "339-40" } ], "opinion_index": 0, "case_paths": [ "/nc/363/0334-01" ] }, { "cite": "121 L. Ed. 2d 431", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1992, "opinion_index": 0 }, { "cite": "506 U.S. 985", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12035616, 12035130, 12035173, 12035238, 12035081, 12035561, 12035342, 12034992, 12035285, 12035509, 12035449, 12035034, 12035391 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/us/506/0985-13", "/us/506/0985-04", "/us/506/0985-05", "/us/506/0985-06", "/us/506/0985-03", "/us/506/0985-12", "/us/506/0985-08", "/us/506/0985-01", "/us/506/0985-07", "/us/506/0985-11", "/us/506/0985-10", "/us/506/0985-02", "/us/506/0985-09" ] }, { "cite": "413 S.E.2d 276", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "289" } ], "opinion_index": 0 }, { "cite": "330 N.C. 761", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2511641 ], "pin_cites": [ { "page": "782" } ], "opinion_index": 0, "case_paths": [ "/nc/330/0761-01" ] }, { "cite": "360 N.C. 321", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3791894 ], "year": 2006, "pin_cites": [ { "page": "325", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/360/0321-01" ] }, { "cite": "666 S.E.2d 107", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2008, "pin_cites": [ { "page": "114", "parenthetical": "\"When reviewing a complaint dismissed under Rule 12(b)(6), we treat a plaintiff's factual allegations as true.\"" } ], "opinion_index": 0 }, { "cite": "362 N.C. 431", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4149850 ], "year": 2008, "pin_cites": [ { "page": "442", "parenthetical": "\"When reviewing a complaint dismissed under Rule 12(b)(6), we treat a plaintiff's factual allegations as true.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/362/0431-01" ] }, { "cite": "42 U.S.C. \u00a7 1983", "category": "laws:leg_statute", "reporter": "U.S.C.", "weight": 4, "opinion_index": 0 }, { "cite": "193 N.C. App. 249", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4162227 ], "year": 2008, "pin_cites": [ { "page": "286" } ], "opinion_index": 0, "case_paths": [ "/nc-app/193/0249-01" ] } ], "analysis": { "cardinality": 958, "char_count": 22169, "ocr_confidence": 0.749, "pagerank": { "raw": 1.2916320587437645e-07, "percentile": 0.6199440585146084 }, "sha256": "9b7f6a919b313ad551ec6445e7e27f1c5bdbbc92882f30a0fd4b0b86290fdc47", "simhash": "1:0959b63e670e0fdd", "word_count": 3539 }, "last_updated": "2023-07-14T21:19:39.869638+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "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 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" ], "opinions": [ { "text": "HUDSON, Justice.\nOn 24 March 2006, plaintiffs, Durham public high school students or their parents, filed a purported class action complaint in Superior Court, Durham County, seeking compensatory and punitive damages, a declaratory judgment, and injunctive relief against the Durham Public Schools Board of Education (the \u201cBoard\u201d), Board secretary and Durham Public Schools Superintendent Ann Denlinger in her official and individual capacities, and various other individuals later dismissed from the suit. According to the allegations in the complaint, the Board, Ms. Denlinger, school principals, and other individuals affiliated with public high schools in Durham had subjected minority students \u201cto more severe disciplinary measures for less serious offenses than white students,\u201d including imposing school suspensions \u201cwithout due process of law,\u201d and had \u201c[fjalsely and indiscriminately labelfed]\u201d minority students as \u201c \u2018gang affiliated.\u2019 \u201d\nIn connection with these factual allegations, plaintiffs contended that defendants had conspired \u201cto deny minority students an equal educational opportunity in the Durham Public Schools.\u201d Plaintiffs asserted that, specifically with respect to school suspensions, defendants had violated several of plaintiffs\u2019 federal and state constitutional rights, including their rights to due process, equal protection, and a sound basic education. In seeking a declaratory judgment, plaintiffs argued that the Board\u2019s policy related to gangs \u201cdoes not provide adequate notice to students of the precise conduct prohibited,\u201d \u201cgives excessive subjective discretion to school officials and school resource officers to pick and choose what conduct by what students to punish,\u201d and \u201cis unconstitutionally vague and therefore void and unenforceable.\u201d\nOn 5 October 2006, the trial judge dismissed all claims against the Board, Ms. Denlinger and the school board members, and the named school principals. As to the particular claims before this Court, the trial court based the dismissals on the following grounds: (1) regarding the Douglas state constitutional claims against the Board for violating his right to procedural due process, an adequate state statutory remedy was available to challenge suspension decisions, and the student had failed to allege either that he had exhausted his administrative remedies or that these remedies were inadequate; (2) regarding the Douglas federal procedural due process claims under 42 U.S.C. \u00a7 1983, brought against Ms. Denlinger in her individual capacity, the student had failed to demonstrate that he had exhausted his administrative remedies or that Ms. Denlinger had violated rights \u201cclearly established\u201d under federal law, thereby entitling Ms. Denlinger to qualified immunity in her individual capacity; and (3) regarding the Board\u2019s gang policy, it \u201cdefines a violation . . . with sufficient definiteness that a student could understand what conduct was prohibited and it established standards to permit enforcement in a non-arbitrary, non-discriminatory manner.\u201d\nThe Court of Appeals unanimously affirmed the trial court\u2019s dismissal of the majority of plaintiffs\u2019 claims against the majority of the named defendants. Copper ex rel. Copper v. Denlinger, 193 N.C. App. 249, 286, 667 S.E.2d 470, 495 (2008). The panel was divided in reversing the dismissal of the Douglas state constitutional claim against the Board, and his \u00a7 1983 claim against Ms. Denlinger in her individual capacity, for alleged violations of his procedural due process rights. Id. at 286-87, 667 S.E.2d at 495. Defendants appealed based on the dissent. Although the Court of Appeals unanimously reversed the dismissal of plaintiffs\u2019 claim concerning the Board\u2019s gang policy, id., we allowed defendants\u2019 petition for discretionary review of that issue. We also allowed review of the question of whether a school board may be held liable for monetary damages under the state constitution for the actions of its employees. Because we find that plaintiffs have not stated a claim for relief under the state constitution, we do not reach this issue.\nThe central question we address is whether the allegations in the complaint are sufficient to state a claim for relief against the Board under the state constitution and against Ms. Denlinger in her individual capacity under \u00a7 1983 for violations of Douglas\u2019s constitutional right to procedural due process. After careful consideration of each of the complaint\u2019s allegations concerning these Douglas claims and his treatment by the school, we hold that he did not.\n.The complaint here contains allegations of disciplinary actions taken against nine Durham public high school students and includes nearly six hundred paragraphs. Of these, roughly seventy-five pertain to the Douglas claims. We have summarized the pertinent facts below using plaintiffs\u2019 own statements from the complaint, which we treat as true when reviewing an order dismissing a complaint under Rule 12(b)(6). See, e.g., State ex rel. Cooper v. Ridgeway Brands Mfg., LLC, 362 N.C. 431, 442, 666 S.E.2d 107, 114 (2008) (\u201cWhen reviewing a complaint dismissed under Rule 12(b)(6), we treat a plaintiff\u2019s factual allegations as true.\u201d) (quoting Stein v. Asheville City Bd. of Educ., 360 N.C. 321, 325, 626 S.E.2d 263, 266 (2006) (citation omitted))).\nState Constitutional Claim Against, t,he Board\nTo assert a direct constitutional claim against the Board for violation of his procedural due process rights, a plaintiff must allege that no adequate state remedy exists to provide relief for the injury. See Corum v. Univ. of N.C., 330 N.C. 761, 782, 413 S.E.2d 276, 289 (\u201cTherefore, in 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), cert. denied, 506 U.S. 985, 121 L. Ed. 2d 431 (1992); see also Craig ex rel. Craig v. New Hanover Cty. Bd. of Educ., 363 N.C. 334, 340, 678 S.E.2d 351, 355 (2009) (noting that \u201can adequate remedy must provide the possibility of relief under the circumstances.\u201d (emphasis added)).\nThe complaint contends that the Board violated Douglas\u2019s state constitutional right to procedural due process by denying him a hearing before his long-term suspension from school. Because we find that an adequate state remedy exists to redress this alleged constitutional injury, we need not address whether the allegations in the complaint, when taken as true, would establish a violation of procedural due process under our state constitution. Indeed, our General Assembly has enacted two separate statutes that provide a means of redressing such an injury. Sections 115C-45(c) and 115C-391(e) allow an appeal to the Board, and then to superior court, \u201cfrom any final administrative decision\u201d related to student discipline and from a suspension lasting \u201cin excess of 10 school days,\u201d respectively. N.C.G.S. \u00a7\u00a7 115045(c), 391(e) (2007).\nThe complaint appears to suggest that Ms. Denlinger and Larry McDonald, the principal of Southern High School, purposely backdated correspondence to Douglas and his mother, Sheryl Smith, to convert what had effectively become a long-term suspension into a short-term suspension and thereby thwart his right to appeal to the Board. However, the complaint fails to allege any facts or events to the effect that the Board \u2014 or anyone else \u2014 actually took action to prevent the student or his mother from pursuing an appeal. Although the complaint maintains that Ms. Smith was told that she had no right to appeal a short-term suspension, it also reflects that she retained a new attorney upon learning this information, yet took no additional action at that time, despite her knowledge that her son had been out of school for twelve days, constituting a long-term suspension.\nSimilarly, the complaint does not assert that the student or his mother sought any further appeal, to the Board or elsewhere, following a meeting with Mr. McDonald and other school officials on 6 October 2003, when the student had been out of school for seven days. Rather, the complaint reflects that Ms. Smith had representation from not one, but two, attorneys during this time period. From the complaint, it appears that even with legal counsel, neither she nor her son took any affirmative steps to appeal the suspension. None of the allegations in the complaint indicates that the student or his mother objected to the outcome of the 6 October meeting, which reduced the disciplinary action from an initial proposed expulsion to a suspension. While Ms. Smith did decide to transfer her son to a different school immediately following the meeting, the complaint does not assert that her decision was based on any alleged violation of procedural due process rights.\nUnder N.C.G.S. \u00a7\u00a7 115C-45(c) and 391(e), the student here always had the statutory right to appeal; thus, the complaint\u2019s allegation that he \u201cwas never given\u201d that opportunity fails. As we recently observed in Craig, \u201cto be considered adequate in redressing a constitutional wrong, a plaintiff must have at least the opportunity to enter the courthouse doors and present his claim.\u201d 363 N.C. at 339-40, 678 S.E.2d at 355. Here, the complaint contains no allegations suggesting that the student was somehow barred from the doors of either the courthouse or the Board. Nor does the complaint allege that he exhausted his administrative remedies, or even that it would have been futile to attempt to appeal his suspension to the Board. Thus, under our holdings in both Corum and Craig, an adequate remedy exists at state law to redress the alleged injury, and this direct constitutional claim is barred.\nSection 1983 Claim Against Denlinaer in her Individual Capacity\nTo state a claim under 42 U.S.C. \u00a7 1983, a plaintiff must show that an individual, acting under color of law, has \u201csubjected [him] to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws.\u201d 42 U.S.C. \u00a7 1983 (2006). The United States Supreme Court has clarified, however, that procedural due process claims under \u00a7 1983 are evaluated differently with respect to the existence of state remedies:\nThe constitutional violation actionable under \u00a7 1983 is not complete when the deprivation occurs; it is not complete un less and until the State fails to provide due process. Therefore, to determine whether a constitutional violation has occurred, it is necessary to ask what process the State provided, and whether it was constitutionally adequate. This inquiry would examine the procedural safeguards built into the statutory or administrative procedure of effecting the deprivation, and any remedies for erroneous deprivations provided by statute or tort law.\nZinermon v. Burch, 494 U.S. 113, 126, 108 L. Ed. 2d 100, 114 (1990) (emphasis added); id. at 125, 108 L. Ed. 2d at 114 (\u201cIn procedural due process claims, the deprivation by state action of a constitutionally protected interest in \u2018life, liberty, or property\u2019 is not in itself unconstitutional; what is unconstitutional is the deprivation of such an interest without due process of law.\u201d (emphasis added) (citations omitted)); see also Parratt v. Taylor, 451 U.S. 527, 543, 68 L. Ed. 2d 420, 433-34 (1981) (finding no allegation of a violation of procedural due process when the deprivation of property \u201cdid not occur as a result of some established state procedure\u201d but was instead due to \u201cthe unauthorized failure of agents of the State to follow established state procedure\u201d; moreover, the respondent did not contend that the procedures themselves were inadequate, and the State \u201cprovided respondent with the means by which he can receive redress for the deprivation,\u201d but respondent did not use those procedures), overruled on other grounds by Daniels v. Williams, 474 U.S. 327, 330-31, 88 L. Ed. 2d 662, 667-68 (1986). But see Patsy v. Bd. of Regents, 457 U.S. 496, 516, 73 L. Ed. 2d 172, 188 (1982) (holding that, generally, \u201cexhaustion of state administrative remedies should not be required as a prerequisite to bringing an action pursuant to \u00a7 1983\u201d); Edward Valves, Inc. v. Wake Cty., 343 N.C. 426, 434-35, 471 S.E.2d 342, 347 (1996) (quoting Zinermon with approval and holding that a plaintiff need not exhaust administrative remedies when seeking redress for a substantive constitutional violation), cert. denied, 519 U.S. 1112, 136 L. Ed. 2d 839 (1997).\nHere, as noted above, the Douglas claims do not contend that the state remedies provided in N.C.G.S. \u00a7\u00a7 115C-45(c) and -391(e) are inadequate or would fail to redress the alleged constitutional injury. Likewise, the complaint does not allege that the student or his mother sought any further appeal to the Board or elsewhere, pursuant to N.C.G.S. \u00a7\u00a7 115C-45(c) or -391(e), regarding the meeting at the school on 6 October and the decision to reduce the pending expulsion to a suspension, or the alleged failure to hold a hearing prior to the suspension. Nor does the complaint contain any allegation that such a request was ignored or denied.\nAs such, even assuming arguendo that the 6 October meeting was constitutionally deficient and deprived the student of his right to procedural due process, the complaint fails to make the additional requisite allegation that the injury was completed when Ms. Denlinger, acting under color of law, refused to provide or somehow denied the student due process following the initial alleged deprivation. Zinermon, 494 U.S. at 126, 108 L. Ed. 2d at 114. The sole relevant allegation as to Ms. Denlinger, that she \u201cpurposefully postdated her letter... to cut off Todd\u2019s right to appeal,\u201d even when taken as true, is insufficient to establish that he was denied his right to appeal. Simply put, the student can show no claim under \u00a7 1983 for violation of procedural due process when his own allegations reveal that he and his mother failed to avail themselves of the due process offered under state law.\nMoreover, the complaint reflects that on day seven of the suspension, the student, his mother, and their attorney met with Mr. McDonald, an assistant principal, a school resource officer, and an attorney for the Board. Even assuming that it would have been futile for the student and his mother to seek redress under the state remedies provided by N.C.G.S. \u00a7\u00a7 115C-45(c) and -391(e), the allegations in the complaint do not demonstrate how this meeting violated the student\u2019s right to procedural due process. Under federal case law, the minimum due process required before a student is suspended for ten days or less is \u201coral 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 Goss v. Lopez, 419 U.S. 565, 581, 42 L. Ed. 2d 725, 739 (1975); see also id. at 579, 42 L. Ed. 2d at 737 (stating that, at a minimum, a student\u2019s constitutionally protected property interest in a public education may not be taken away without \u201csome kind of notice\u201d and \u201csome kind of hearing\u201d).\nHowever, the Supreme Court also stated, \u201cLonger 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 (emphasis added). Our own Court of Appeals has extended those requirements in the context of long-term suspensions:\nUnder the facts of this case, where respondent sought to impose a long-term suspension and the Board Policy specifically provided for a factual hearing before the Hearing Board, we construe the Due Process Clause of the United States Constitution, applicable to the States through the Fourteenth Amendment, to require that petitioner have 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.\nIn re Roberts, 150 N.C. App. 86, 93, 563 S.E.2d 37, 42 (2002) (citation omitted), disc. rev. improvidently allowed and appeal dismissed ex mero motu, 356 N.C. 660, 660, 576 S.E.2d 327, 328 (2003), cert. denied, 540 U.S. 820, 157 L. Ed. 2d 38 (2003), overruled on other grounds by N.C. Dep\u2019t of Env\u2019t & Natural Res. v. Carroll, 358 N.C. 649, 661-64, 599 S.E.2d 888, 895-97 (2004).\nAccording to the complaint, at the end of the 6 October meeting at the school, Mr. McDonald \u201csaid Todd had not been suspended for the remainder of the school year, but for only ten days, and that he could return to school on October 14, 2003,\u201d which would have meant he was out of school for a total of twelve days. Aside from the presence of Ms. Smith and her attorney, the complaint alleges no additional facts about what took place during the meeting, such as whether the student was allowed to present his version of events or to question or call his own witnesses, or how the discussion developed. The complaint does not allege that Ms. Denlinger, Mr. McDonald, or any other Board or school official prevented or denied the student the right to engage in those actions at the hearing. Likewise, there are no allegations of any objections to the meeting\u2019s outcome, that is, the reduction of the suspension, beyond Ms. Smith\u2019s decision to transfer her son to another school. Even when taken as true, the allegations of the complaint pertaining to this Douglas claim are insufficient as a matter of law to state a claim for relief for a violation of the student\u2019s federal due process rights.\nConclusion\nFor the foregoing reasons, we conclude that plaintiff Todd Douglas, deceased, by and through his mother, Sheryl Smith, the administratrix of his estate, failed to state a claim for the violation of his procedural due process rights under either our State constitution or 42 U.S.C. \u00a7 1983. Accordingly, we reverse the Court of Appeals and affirm the trial court\u2019s dismissal of the Douglas claims under Rules 12(b)(1) and 12(b)(6). As to plaintiffs\u2019 claim for declaratory relief regarding the Board\u2019s gang policy, we conclude that discretionary review was improvidently allowed and leave undisturbed the Court of Appeals\u2019 unanimous decision to reverse and remand for additional proceedings as to that issue.\nREVERSED IN PART; DISCRETIONARY REVIEW IMPROVIDENTLY ALLOWED IN PART.\n. As for student Todd Douglas, who was deceased at the time the lawsuit was filed, his mother, Sheryl Smith, was named plaintiff as administratrix of his estate. For ease of reference, we refer to his claims as \u201cthe Douglas claims\u201d in this opinion.\n. The class has not been certified.\n. All other defendants, law enforcement officials including the Durham County Sheriff, were previously dismissed in an order entered 12 July 2006.", "type": "majority", "author": "HUDSON, Justice." } ], "attorneys": [ "Frances P. Solari for plaintiff-appellees.", "Tharrington Smith, LLP, by Ann L. Majestic and Christine Scheef for Durham Public Schools Board of Education; and Cranfill, Sumner & Hartzog, L.L.P. for Ann T. Denlinger, defendant-appellants.", "Allison B. Schafer, General Counsel, for North Carolina School Boards Association, amicus curiae.", "North Carolina Justice Center, by Jack Holtzman, for North Carolina Justice Center, ACLU of North Carolina Legal Foundation, Advocates For Children\u2019s Services Of Legal Aid Of North Carolina, North Carolina State Conference of NAACP Branches, Triangle Lost Generation Task Force, and North Carolina Black Leadership Caucus, amici curiae." ], "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 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\nNo. 526A08\n(Filed 29 January 2010)\n1. Civil Rights\u2014 schools \u2014 gang policy \u2014 suspension\nPlaintiff student did not sufficiently state a direct constitutional claim for relief from a suspension under a public school\u2019s gang policy where an adequate state remedy existed through appeals provided by statute. The complaint did not allege facts or events indicating that anyone took action to prevent pursuit of an appeal, that the student or his mother sought further appeal after a meeting with school officials, or that it would have been futile to attempt to appeal his suspension to the board.\n2. Civil Rights\u2014 gang policy \u2014 school suspension \u2014 claim not stated\nA complaint arising from a suspension under a public school\u2019s gang policy was not sufficient as a matter of law to state a claim for relief for violation of federal due process rights where the student\u2019s own allegations revealed that he and his mother failed to avail themselves of the due process offered under state law.\nAppeal pursuant to N.C.G.S. \u00a7 7A-30(2) from the decision of a divided panel of the Court of Appeals, 193 N.C. App. 249, 667 S.E.2d 470 (2008), affirming in part and reversing in part an order entered 5 October 2006 by Judge Orlando F. Hudson, Jr. in Superior Court, Durham County and remanding for further proceedings. On 5 February 2009, the Supreme Court allowed defendants\u2019 petition for discretionary review of additional issues. Heard in the Supreme Court 5 May 2009.\nFrances P. Solari for plaintiff-appellees.\nTharrington Smith, LLP, by Ann L. Majestic and Christine Scheef for Durham Public Schools Board of Education; and Cranfill, Sumner & Hartzog, L.L.P. for Ann T. Denlinger, defendant-appellants.\nAllison B. Schafer, General Counsel, for North Carolina School Boards Association, amicus curiae.\nNorth Carolina Justice Center, by Jack Holtzman, for North Carolina Justice Center, ACLU of North Carolina Legal Foundation, Advocates For Children\u2019s Services Of Legal Aid Of North Carolina, North Carolina State Conference of NAACP Branches, Triangle Lost Generation Task Force, and North Carolina Black Leadership Caucus, amici curiae." }, "file_name": "0784-01", "first_page_order": 822, "last_page_order": 831 }