Hawkins v. State

• Decision Date: 07 February 1995
• Docket Number: No. 9225SC154,9225SC154
• Citation: 117 N.C.App. 615,453 S.E.2d 233
• Court: North Carolina Court of Appeals
• Parties: John HAWKINS, Plaintiff, v. STATE of North Carolina; N.C. Department of Human Resources; Western Carolina Center; J. Iverson Riddle, both individually and in his representative capacity as Director of Western Carolina Center; Phillip J. Kirk, Jr., individually and in his representative capacity as Secretary of the North Carolina Department of Human Resources; Earline Boyd Brown, individually and in her representative capacity, Rhonda Benge, individually and in her representative capacity, Suzanne Williams, individually and in her capacity, Vicki Cash, individually and in her capacity, and Ralph Keaton, individually and in his capacity, Defendants.

Page 233

453 S.E.2d 233

117 N.C.App. 615

John HAWKINS, Plaintiff, v. STATE of North Carolina; N.C. Department of Human Resources; Western Carolina Center; J. Iverson Riddle both individually and in his representative capacity as Director of Western Carolina Center; Phillip J. Kirk, Jr individually and in his representative capacity as Secretary of the North Carolina Department of Human Resources Earline Boyd Brown, individually and in her representative capacity, Rhonda Benge, individually and in her representative capacity, Suzanne Williams, individually and in her capacity, Vicki Cash, individually and in her capacity, and Ralph Keaton, individually and in his capacity, Defendants.

No. 9225SC154.

Court of Appeals of North Carolina.

Feb. 7, 1995.

Atty. Gen. Lacy H. Thornburg by Sp. Deputy Atty. Gen. John R. Corne and Asst. Atty. Gen. Victoria L. Voight, Raleigh, for State.

C. Gary Triggs, P.A., Morganton, for plaintiff-appellee John Hawkins.

EAGLES, Judge.

I.

We note initially that the denial of a motion to dismiss is ordinarily not immediately appealable. Faulkenbury v. Retirement System, 108 N.C.App. 357, 365, 424 S.E.2d 420, 423, aff'd, 335 N.C. 158, 436 S.E.2d 821 (1993). Here, defendants asserted the defenses of absolute and qualified immunity to most of plaintiff's claims. This Court has previously held that the doctrine of sovereign immunity presents a personal jurisdiction question and that the denial of a motion to dismiss on that basis is immediately appealable. See Faulkenbury at 357, 424 S.E.2d at 423; Zimmer v. North Carolina Dept. Of Transp., 87 N.C.App. 132, 134, 360 S.E.2d 115, 116-17 (1987). Accordingly, we hold that defendants' appeal from the trial court's denial of defendants' motions to dismiss is properly before us.

We also note initially that although plaintiff alleged in his complaint that defendants violated his rights under 28 U.S.C. §§ 1981 and 1983, both parties treated the claims as pursuant to 42 U.S.C. §§ 1981 and 1983. Accordingly, we treat the claims as pursuant to 42 U.S.C. §§ 1981 and 1983.

Standard of Review

"When considering a Rule 12(b)(6) motion to dismiss, the trial court need only look to the face of the complaint to determine whether it reveals an insurmountable bar to plaintiff's recovery." Locus v. Fayetteville State University, 102 N.C.App. 522, 527, 402 S.E.2d 862, 866 (1991) (emphasis omitted).

II.

Defendants first argue that the trial court erred in denying their amended motion to dismiss plaintiff's complaint because plaintiff's claims are barred by the statute of limitations. Plaintiff filed his first complaint on 15 December 1989, within the three year statute of limitations applicable to all of his claims. Plaintiff then voluntarily dismissed his first complaint on 29 February 1990. He filed the second complaint on 27 February 1991, which was within the one year "savings" provision provided by Rule 41(a)(1) of the North Carolina Rules of Civil Procedure. Defendants argue that plaintiff was not entitled to another year in which to refile his complaint because he took a voluntary dismissal of his first action in bad faith. Defendants base their argument on our Supreme Court's decision in Estrada v. Burnham, 316 N.C. 318, 341 S.E.2d 538 (1986). We disagree because Estrada is distinguishable.

In Estrada, the North Carolina Supreme Court stated that although "Rule 41(a)(1) does not, on its face, contain an explicit prerequisite of a good-faith filing with the intent to pursue the action, we find such a requirement implicit in the general spirit of the rules, as well as in the mandates of Rule 11(a)." Estrada at 323, 341 S.E.2d at 542. The Court concluded that a plaintiff cannot use the "savings" provision of Rule 41(a)(1) when the plaintiff files the first complaint solely with the "intention of dismissing it in order to avoid the lapse of the statute of limitations." Estrada at 325, 341 S.E.2d at 543. The Court concluded that the plaintiff in Estrada had filed the original complaint in bad faith and therefore was not entitled to the one year "savings" provision.

As the court in Estrada noted, "appellate court[s] cannot make findings of fact." Id. at 324, 341 S.E.2d at 543. However, in Estrada, the Court had before it the judicial admission of plaintiff's counsel that " '[c]learly there was an intent on our part not to prosecute [the first] action.' " Estrada at 325, 341 S.E.2d at 543. This admission enabled the Court to reach the conclusion that the plaintiff had a "bad" intent. Here, there is no evidence of record that plaintiff's sole intent in filing the first complaint was to dismiss it in order to gain another year in which to file a "sufficient" complaint. In Estrada, the plaintiff filed the first complaint at 4:28 p.m. on 18 June 1982, and filed the notice of dismissal at 4:30 p.m., two minutes after he filed the original complaint. Estrada at 319, 341 S.E.2d at 539, 540. Here, plaintiff waited over two months to dismiss his original complaint. Here, too, there is no judicial admission that shows that plaintiff filed and dismissed his first complaint in bad faith. Accordingly, we hold that the "savings" provision of Rule 41(a)(1) properly applied to plaintiff's complaint and that his second complaint was not barred by the statute of limitations.

FEDERAL CLAIMS

III.

Defendants argue that the trial court erred in denying defendants' amended motion to dismiss plaintiff's federal claims because the defendants in their official capacities are not "persons" within the meaning of 42 U.S.C. § 1983. Section 1983 provides that:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

42 U.S.C.A. § 1983 (West 1994). The United States Supreme Court held in Will v. Michigan Dept. Of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 2312, 105 L.Ed.2d 45, 58 (1989), that "neither a State nor its officials acting in their official capacities are 'persons' under § 1983." While the Court opined that state officials are "literally ... persons," the opinion holds that "a suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official's office." Will, 491 U.S. at 71, 109 S.Ct. at 2312, 105 L.Ed.2d at 58, citing Brandon v. Holt, 469 U.S. 464, 471, 105 S.Ct. 873, 877-78, 83 L.Ed.2d 878, 884-85 (1985). "As such, it is no different from a suit against the State itself." Will, 491 U.S. at 71, 109 S.Ct. at 2312, 105 L.Ed.2d at 58. Because defendants in their official capacities are not "persons" within the meaning of section 1983 for recovering money damages, we hold that the trial court erred in denying defendants' amended motion to dismiss plaintiff's federal claims against defendants in their official capacities for monetary damages.

Plaintiff also argues that defendants are "persons" here and liable because their actions establish a "governmental custom" of Constitutional and statutory violations. We are not persuaded. Plaintiff relies on language from cases dealing with municipal liability. Municipalities do not enjoy the same protections from liability that states enjoy. "[U]nlike various government officials, municipalities As to plaintiff's claim for injunctive relief under section 1983, defendants are "persons." Will, 491 U.S. at 71 n. 10, 109 S.Ct. at 2312 n. 10, 105 L.Ed.2d at 58 n. 10. Accordingly, plaintiff may be able to obtain injunctive relief against defendants in their official capacities if he can state a claim under each of the alleged federal violations.

do not enjoy immunity from suit--either absolute or qualified--under § 1983. In short, a municipality can be sued under § 1983, but it cannot be held liable unless a municipal policy or custom caused the constitutional injury." Leatherman v. Tarrant County Etc., 507 U.S. 163, ----, 113 S.Ct. 1160, 1162, 122 L.Ed.2d 517, 523 (1993). Accordingly, plaintiff here cannot contend that defendants in their official capacities are liable for alleged Constitutional violations by arguing that defendants' actions were pursuant to a "governmental custom."

IV.

Defendants also argue that the trial court erred in denying defendants' amended motion to dismiss plaintiff's federal claims because defendants in their individual capacities are immune from suit under the doctrine of qualified immunity. "[S]tate governmental officials [may] be sued in their individual capacities for [monetary] damages under section 1983." Corum v. University of North Carolina, 330 N.C. 761, 772, 413 S.E.2d 276, 283, reh'g denied, 331 N.C. 558, 418 S.E.2d 664, cert. denied, Durham v. Corum, 506 U.S. 985, 113 S.Ct. 493, 121 L.Ed.2d 431 (1992). Government officials sued under section 1983 may raise the defense of qualified immunity. Id. "To raise the defense, which does not apply to injunctive relief, the challenged conduct must not have violated a clearly established constitutional [or statutory] right of which a reasonable person would have known." Truesdale v. Univ. Of North Carolina, 91 N.C.App. 186, 193, 371 S.E.2d 503, 507 (1988), review denied, 323 N.C. 706, 377 S.E.2d 229, 230 cert. denied, 493 U.S. 808, 110 S.Ct. 50, 107 L.Ed.2d 19 (1989), overruled on other grounds by Corum, 330 N.C. 761, 413 S.E.2d 276, citing Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). For clarity, we will address each of plaintiff's claims separately.

A. First Amendment Claim

For plaintiff to maintain a free speech claim under section 1983, plaintiff must first establish that his speech was protected by showing that "(i) the speech...