Messick v. Catawba County, N.C.

• Citation: 431 S.E.2d 489,110 N.C.App. 707
• Decision Date: 06 July 1993
• Docket Number: No. 9225SC597,9225SC597
• Court: North Carolina Court of Appeals
• Parties: Victor Hamilton MESSICK, v. CATAWBA COUNTY, NORTH CAROLINA; David Huffman, Individually and as Sheriff of Catawba County; Laverne Bolick, Individually and as an Officer of the Catawba County Sheriff's Department; K.B. Crouse, Individually and as an Officer in the Catawba County Sheriff's Department; Richard Harwell, acting as Chairman of the Board of Commissioners of Catawba County; Robert Hibbitts, as Commissioner of Catawba County; Gretchen Peed, as Commissioner of Catawba County; Eddie Huffman, as Commissioner of Catawba County; David L. Stewart, as Commissioner of Catawba County; Thomas Lundy, as Commissioner of Catawba County.

Page 489

431 S.E.2d 489

110 N.C.App. 707

Victor Hamilton MESSICK, v. CATAWBA COUNTY, NORTH CAROLINA; David Huffman, Individually and as Sheriff of Catawba County; Laverne Bolick Individually and as an Officer of the Catawba County Sheriff's Department; K.B. Crouse, Individually and as an Officer in the Catawba County Sheriff's Department; Richard Harwell, acting as Chairman of the Board of Commissioners of Catawba County; Robert Hibbitts, as Commissioner of Catawba County; Gretchen Peed, as Commissioner of Catawba County Eddie Huffman, as Commissioner of Catawba County; David L Stewart, as Commissioner of Catawba County; Thomas Lundy as Commissioner of Catawba County.

No. 9225SC597.

Court of Appeals of North Carolina.

July 6, 1993.

Metcalf, Vrsecky & Beal by Christopher L. Beal, Winston-Salem, for plaintiff-appellant.

Womble, Carlyle, Sandridge & Rice by Dewey W. Wells and Nathanael K. Pendley, Winston-Salem, for defendants-appellees.

WYNN, Judge.

On 3 June 1988, the Catawba County Sheriff's Department received information from the parents of C.M., a five-year-old child who regularly attended one of the plaintiff's seven day-care centers, regarding the possible sexual abuse of C.M. by the plaintiff. The investigation of these allegations was assigned to Detective Laverne Bolick, who had received a week of special training regarding dealing with juveniles and had recently completed a special one week Advanced Master's course in Child Sexual Abuse investigation. Later, Detective K.B. Crouse was also assigned to the investigation.

On the day the abuse was reported, Detective Bolick interviewed C.M. outside the presence of her parents using techniques learned in a Child Sexual Abuse investigation course. A second interview was conducted approximately two days later. Present at the second interview were Detectives Bolick and Crouse, the child's mother, Assistant District Attorney Jay Myer, and Mary Jane Francois, also from the District Attorney's office.

Based on the two interviews and consultations with Assistant District Attorney Jay Myer, Detectives Bolick and Crouse sought a warrant for the plaintiff's arrest. That warrant was issued by Magistrate Grace M. Killian on 28 April 1988, and on 8 June 1988 the plaintiff was arrested and charged with taking sexual liberties with a child pursuant to N.C.Gen.Stat. § 14-202.1 and first degree sexual offense of a minor child pursuant to N.C.Gen.Stat. § 14-27.4. The news media had gained knowledge of the plaintiff's arrest before his arrival at the police station and, consequently, numerous television cameras and reporters were present when the plaintiff arrived. The plaintiff spent one night in jail before he was able to post bond.

On 12 June 1988, the Sheriff's office received information regarding D.D., a second minor child approximately three-years-old, who had allegedly been sexually abused by the plaintiff. D.D. was interviewed on 13 June 1988 by Judy Vaughn of the Department of Social Services in the presence of Detectives Bolick and Crouse, the child's mother, and Assistant District Attorney Jay Myer.

On 16 June 1988, a second warrant was issued for the plaintiff's arrest in connection with the second allegation of abuse charging him with taking indecent liberties with a minor pursuant to N.C.Gen.Stat. § 14-202.1, first degree sexual offense pursuant to N.C.Gen.Stat. § 14-27.4, and first degree kidnapping pursuant to N.C.Gen.Stat. § 14-39.

True bills of indictment were returned by a Catawba County grand jury on 7 July 1988 against the plaintiff in connection with the C.M. case on three counts of first degree sexual abuse and one count of taking indecent liberties with a minor. That same grand jury also returned true bills of indictment charging the plaintiff in connection with the abuse of D.D.

The case involving C.M. proceeded to trial in Watauga County, where it was removed due to the degree of publicity the case had received in Catawba County. On 15 March 1989 the jury returned a verdict of "not guilty" on all counts of sexual abuse regarding the minor child C.M. On 30 August 1989, the District Attorney's office dropped all charges against the defendant pertaining to the minor child D.D.

The plaintiff filed a Complaint against the defendants on 26 February 1992 alleging a cause of action for the violation of his civil rights under 42 U.S.C. § 1983, as well as causes of action pursuant to state law alleging malicious prosecution, negligence in investigation, negligent infliction of emotional distress, and intentional infliction of emotional distress. The defendants moved for summary judgment and, following a hearing on the motion in Catawba County Superior Court, an Order of summary judgment was entered in favor of the defendants on 21 February 1992. From that Order, the plaintiff appeals.

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By his sole assignment of error, the plaintiff alleges that the trial court erred in entering summary judgment in favor of the defendants. In support of this contention the plaintiff argues that there are genuine issues of material fact with regard to both his federal and state claims. We disagree.

It is well-established that summary judgment is proper where there is no genuine issue of material fact so that one party is entitled to judgment as a matter of law. Moreover, summary judgment is appropriate if one party cannot overcome an affirmative defense which would work to bar his claim. Dickens v. Puryear, 302 N.C. 437, 453, 276 S.E.2d 325, 335 (1981). The burden of establishing that there is no genuine issue of material fact lies with the movant, who can meet the burden in one of two ways: 1) Proving that an essential element of the opposing party's claim is nonexistent; or 2) Showing through discovery that the opposing party cannot produce evidence sufficient to support an essential element of his claim nor sufficient to surmount an affirmative defense to his claim. Roumillat v. Simplistic Enterprises, Inc., 331 N.C. 57, 62-63, 414 S.E.2d 339, 342 (1992) (citing, inter alia, Collingwood v. G.E. Real Estate Equities, 324 N.C. 63, 66, 376 S.E.2d 425, 427 (1989)); see also Waddle v. Sparks, 331 N.C. 73, 82, 414 S.E.2d 22, 27 (1992) ("[i]n order to overcome defendant's motion for summary judgment, plaintiff must have forecast sufficient evidence of all essential elements"). Once the moving party meets its burden, the nonmovant must challenge the motion by producing a forecast of evidence illustrating that a prima facie case can be made out at trial. Roumillat, 331 N.C. at 63, 414 S.E.2d at 342. Where the party moving for summary judgment supports his motion "by competent evidentiary matter showing the facts to be contrary to that alleged in the pleadings," the non-moving party cannot rely on "[u]nsupported allegations in the pleadings ... to create a genuine issue as to a material fact." Gudger v. Transitional Furniture, Inc., 30 N.C.App. 387, 389, 226 S.E.2d 835, 837 (1976). See also Roumillat, 331 N.C. at 63, 414 S.E.2d at 342.

We examine each of the plaintiff's claims below and determine that summary judgment was appropriate on all claims as against all of the defendants.

I. The Claims Against the County, the Commissioners, and the Sheriff and Officers Sued in Their Official Capacities

A. Federal Claim: 42 U.S.C.A. § 1983

The plaintiff argues that his civil rights were violated pursuant to 42 U.S.C.A. § 1983 and he, therefore, is entitled to recover monetary damages from the defendants. Section 1983 provides that:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, ... 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 (1981). Our Supreme Court has declared, however, that "when an action is brought under section 1983 in state court against the State, its agencies, and/or its officials acting in their official capacity, neither a State nor its officials acting in their official capacities are 'persons' under section 1983 when the remedy sought is monetary damages." Corum v. University of North Carolina, 330 N.C. 761, 771, 413 S.E.2d 276, 282-83 (1992). See also Faulkenbury v. Teachers and State Employees Retirement System, 108 N.C.App. 357, 366, 424 S.E.2d 420, 424 (1993) (when the defendants in a 1983 action are the state and its officers, they are not "persons" pursuant to the statute and cannot be sued where the remedy sought is monetary damages). Because the plaintiff in the instant case seeks monetary damages, he is not entitled to relief pursuant to section 1983 against the County, the Commissioners, or the sheriff and the officers sued in their official capacity.

B. The State Claims: Negligence, Negligent Infliction of Emotional Distress, Malicious Prosecution, and Intentional Infliction of Emotional Distress

As a general rule, the doctrine of governmental, or sovereign, immunity bars actions against, inter alia, the state, its counties, and its public officials sued in their official capacity. Whitaker v. Clark, 109 N.C.App. 379, 381, 427 S.E.2d 142, 143-44 (1993); EEE-ZZZ Lay Drain Co. v. North Carolina Dep't Hum. Res., 108 N.C.App. 24, 27, 422 S.E.2d 338, 340 (1992); Robinson v. Nash County, 43 N.C.App. 33, 35, 257 S.E.2d 679, 680 (1979). This doctrine applies where the entity sued is being sued for the performance of a governmental, rather than a proprietary, function. Robinson, 43 N.C.App. at 35, 257 S.E.2d at 680. It is inapplicable, however, where the state has consented to suit or has waived its immunity through the purchase of liability insurance. EEE-ZZZ Lay Drain, 108 N.C.App. at 27, 422 S.E.2d at 340. Absent consent or waiver, the immunity provided by the doctrine is absolute and...