Toomer v. Garrett, COA01-1385.

CourtCourt of Appeal of North Carolina (US)
Citation574 S.E.2d 76,155 NC App. 462
Docket NumberNo. COA01-1385.,COA01-1385.
PartiesAlgie D. TOOMER, Jr., Plaintiff, v. Garland GARRETT, John Doe # 1, John Doe # 2, individually and in their official capacities, State of North Carolina, North Carolina Department of Transportation, North Carolina Department of Correction, Defendants.
Decision Date31 December 2002

The McGuinness Law Firm, by J. Michael McGuinness, Elizabethtown; and Richard C. Hendrix, Stem, for plaintiff-appellant.

Attorney General Roy Cooper, by Special Deputy Attorney General Tiare B. Smiley, Assistant Attorney General Neil Dalton, Assistant Attorney General Sarah Ann Lannom, for the State.

Moss, Mason & Hill, by William L. Hill, Greensboro, on behalf of Southern States and North Carolina Police Benevolent Associations, amicus curiae.

MARTIN, Judge.

Plaintiff, a former state government employee, filed this action alleging multiple state and federal claims arising from the alleged disclosure and dissemination of the contents of his state personnel file in and after April 1997. His complaint includes claims for violations of equal protection of the laws and substantive and procedural due process under the U.S. and North Carolina Constitutions, violation of his right to petition the government for redress of grievances under the First Amendment, and common law tortious invasion of privacy, gross negligence, civil conspiracy, and breach of contract.

In summary, plaintiff alleged that he had been a State employee since September 1986 and that his employment relationship was governed, in part, by the provisions of Chapter 126 of the North Carolina General Statutes. During his employment, initially with the Department of Correction, plaintiff asserted a claim against the Department for employment discrimination. The claim was settled in 1991; plaintiff and the Department of Correction (NCDOC) entered into a negotiated settlement agreement, which provided, inter alia, that all files relating to the employment discrimination claim would "be maintained in an area separate and apart from" plaintiff's personnel file. Plaintiff alleged that he was subsequently employed by the Department of Transportation (NCDOT). In 1996, plaintiff asserted an employment claim against NCDOT; that claim was settled by agreement dated 20 February 1997.

Plaintiff alleged that in April 1997, defendant Garrett, who was Secretary of NCDOT and was named in both his official and individual capacities, and Does # 1 and # 2, whose names are unknown to plaintiff, released plaintiff's personnel records to various news media and to the public after having been warned by NCDOT's personnel officers that such release would be unlawful. Plaintiff alleged that defendants allowed false information to be inserted into the records, kept his records separate from those of other state employees so as to facilitate access to them, and allowed unauthorized persons to go through the records, copy them, and disseminate the contents through the media and the Internet. He alleged that the information made available by defendants included his photograph and home address; his Social Security number; his personnel history, including that which was made confidential by the 1991 settlement agreement; his medical history; his educational history and testing data; his credit history; his retirement data and financial information; the names and addresses of his family members; and other confidential, personal and private information. Plaintiff also alleged that copies of his confidential personnel records with the NCDOC were provided to the Associated Press in January 1998 and published in the Fayetteville Observer Times.

Plaintiff alleged that such actions were undertaken by defendants as part of an intentional scheme of conduct to harass, intimidate, retaliate against, and damage him due to his having engaged in constitutionally protected activities in connection with his assertion of employment discrimination claims against the NCDOC and NCDOT. Plaintiff alleged defendants' conduct was malicious, undertaken in bad faith and for discriminatory reasons, and so exceeded their authority as to amount to a waiver of "any possible state law immunity."

As a result of defendants' actions, plaintiff alleged that he has been harassed and intimidated; that as a former law enforcement officer, he has been endangered by the dissemination of personal information about himself and his family members; that he has been subjected to public humiliation and ridicule; and that he has been effectively blacklisted from future government or law enforcement employment. He sought compensatory and punitive damages, declaratory and injunctive relief, and costs and attorneys' fees.

Defendants moved to dismiss the complaint pursuant to G.S. § 1A-1, Rule 12(b) for lack of subject matter jurisdiction, lack of personal jurisdiction, and failure to state a claim for which relief may be granted. The trial court entered an order dismissing all of plaintiff's claims for failure to state a claim upon which relief may be granted, and some of his claims against certain defendants for lack of jurisdiction. Plaintiff appeals from the order of dismissal; defendants cross-assign as error the trial court's failure to dismiss the complaint on additional grounds.

Plaintiff asserts that the trial court erred in (1) dismissing his complaint for failure to state a claim upon which relief may be granted and (2) dismissing his federal constitutional claims against the State, NCDOT, NCDOC, and individual defendants in their official capacities for lack of jurisdiction. We affirm in part, reverse in part and remand this case to the trial division for further proceedings.

The question before a court considering a motion to dismiss for failure to state a claim is whether, if all the plaintiff's allegations are taken as true, the plaintiff is entitled to recover under some legal theory. See Block v. County of Person, 141 N.C.App. 273, 540 S.E.2d 415 (2000)

. A complaint may be dismissed pursuant to Rule 12(b)(6) where "(1) the complaint on its face reveals that no law supports a plaintiff's 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 plaintiff's claim." Governors Club, Inc. v. Governors Club Ltd. Partnership, 152 N.C.App. 240, ___, 567 S.E.2d 781, 790 (2002). "In reviewing a dismissal of a complaint for failure to state a claim, the appellate court must determine whether 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." Brandis v. Lightmotive Fatman, Inc., 115 N.C.App. 59, 62, 443 S.E.2d 887, 888 (1994).

I. Substantive Due Process

Plaintiff alleges that defendants violated his substantive due process rights and right to privacy under both the federal and state constitutions. U.S. Const. amend. XIV, § 1; N.C. Const., Art. I., §§ 1, 19, 35, 36. The Fourteenth Amendment provides that government shall not "deprive any person of life, liberty, or property, without due process of law." U.S. Const. amend. XIV, § 1. Suit for relief from federal constitutional violations is authorized under 42 U.S.C. § 1983, which states in pertinent part:

Every 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 Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress....

In general, substantive due process protects the public from government action that unreasonably deprives them of a liberty or property interest. See Huntington Properties, L.L.C. v. Currituck Co., ___ N.C.App. ___, ___, 569 S.E.2d 695, 703 (2002)

. If that liberty or property interest is a fundamental right under the Constitution, the government action may be subjected to strict scrutiny. Id. However, where the interest is not fundamental, the government action need only have a rational relation to a legitimate governmental objective to pass constitutional muster. Id. This legitimate governmental objective need not be the actual objective of the state actors. Id.

In terms of fundamental rights, one's privacy interest in the information contained in personnel files does not fall under the recognized fundamental right to privacy with respect to personal and family decision making. Kallstrom v. City of Columbus, 136 F.3d 1055 (6th Cir.1998). Plaintiff argues alternatively that the information he alleges defendants disclosed is covered by that strain of the right to privacy that protects against disclosure of highly personal information. See Whalen v. Roe, 429 U.S. 589, 97 S.Ct. 869, 51 L.Ed.2d 64 (1977)

. See also Ferguson v. City of Charleston, 186 F.3d 469, 482-83 (4th Cir.1999),

overruled on other grounds, 532 U.S. 67, 121 S.Ct. 1281, 149 L.Ed.2d 205 (2001) (declining to decide whether medical information protected by right to privacy where disclosure necessary to serve compelling state interest); Walls v. City of Petersburg, 895 F.2d 188 (4th Cir. 1990) (certain financial information protected by right to privacy); ACT-UP Triangle v. Commission for Health Services of the State of N.C., 345 N.C. 699, 483 S.E.2d 388 (1997) (declining to decide whether medical information protected by right to privacy where necessary to serve compelling interest and chances of unauthorized disclosure low under established protocols).

However, we need not determine whether the alleged conduct violated a fundamental right. The Fourteenth Amendment also protects against arbitrary government action that is so egregious that it "shocks the...

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