Olavarria v. Wake Cnty. Human Servs. ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA13-1215
NORTH CAROLINA COURT OF APPEALS
Filed: 1 July 2014
REINALDO OLAVARRIA,
Plaintiff,
v. Wake County
No. 13 CVS 00491
WAKE COUNTY HUMAN SERVICES: MARY
MORRIS, WARREN LUDWIG, MARILYN
FLETCHER, RAMON ROJANO, KATHY
SUTEHALL, LINDA CLEMENTS. WENDELL
POLICE DEPARTMENT: ROY D.
HOLLOWAY, JAMES E. GILL, and VANCE
JOHNSON,
Defendants.
Appeal by Plaintiff from order entered 6 August 2013 by
Judge Orlando F. Hudson, Jr., in Wake County Superior Court.
Heard in the Court of Appeals 20 March 2014.
Reinaldo Olavarria, Pro Se.
Office of the Wake County Attorney, by Assistant Wake
County Attorney Kenneth R. Murphy, III, for Defendants Wake
County Human Services, Mary Morris, Warren Ludwig, Marilyn
Fletcher, Ramon Rojano, Kathy Sutehall, and Linda Clements.
Cranfill Sumner & Hartzog LLP, by Kari R. Johnson, for
Defendants Wendell Police Department, Roy D. Holloway,
James E. Gill, and Vance Johnson.
DILLON, Judge.
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Reinaldo Olavarria (“Plaintiff”) appeals from the trial
court’s order dismissing his claims against Defendants with
prejudice pursuant to Rules 12(b)(1),(2),(4),(5), and (6) of the
North Carolina Rules of Civil Procedure. We affirm.
I. Factual & Procedural Background
On or about 3 January 2012, Plaintiff, proceeding pro se,
filed two nearly identical complaints, one in Wake County
District Court and one in Wake County Superior Court.1 The
complaints asserted the same claims against Defendants Wake
County Human Services (“WCHS”), Mary Morris, Warren Ludwig,
Marilyn Fletcher, Ramon Rojano, Kathy Sutehall, and Linda
Clements (hereinafter, “Wake County Defendants”), and Defendants
Wendell Police Department (“WPD”), Roy D. Holloway, James E.
Gill, and Vance Johnson (hereinafter, “Wendell Defendants”)
(collectively, “Defendants”). In his complaints, Plaintiff
alleged that Defendants had wrongfully investigated and arrested
him for misdemeanor child abuse in January 2011, following an
incident in which his daughter “hit her head on the head board
of her bed while throwing a tantrum regarding taking a bath” and
after “trying to maneuver around [Plaintiff] to get to her
1
Plaintiff’s district court complaint is dated 30 December 2011
and does not bear a file stamp. Plaintiff’s superior court
complaint is dated 30 December 2011 and is filed stamped 3
January 2012.
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sister.” Plaintiff further alleged that he was criminally
charged on 18 January 2010; that the Wake County Department of
Health and Human Services placed him on its list of “responsible
individuals” (“RIL”), see N.C. Gen. Stat. § 7B-311(b) (2011), in
February 2010; and that the charges against him were dismissed
in May 2010. Plaintiff’s claims, though not numbered and set
out separately as such in the complaints, consisted of, inter
alia, violation of his constitutional rights – specifically, his
right to procedural due process – gross negligence, and
defamation.
Defendants filed answers denying Plaintiff’s allegations
and moving to dismiss Plaintiff’s complaints pursuant to Rules
12(b)(1),(2),(4),(5), and (6) of the North Carolina Rules of
Civil Procedure. Defendants also requested that Plaintiff’s two
complaints be consolidated in Wake County Superior Court.
Defendants’ motions to dismiss and motions to transfer the
district court case to superior court were calendared to be
heard at the 2 April 2012 session in Wake County Superior Court.
Prior to the hearing, however, Plaintiff requested a continuance
on grounds that he was seeking representation of an out-of-state
attorney, Alfred Odom, and that Mr. Odom was “in the process of
obtaining pro hac vice admission to the State of North Carolina
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to represent [him] in this case.” Defendants agreed to
Plaintiff’s request for a continuance.
Defendants’ motions again came on for hearing on 21 May
2012. Plaintiff then informed Defendants that he was continuing
to have difficulties securing Mr. Odom’s representation and
provided Defendants with a letter purportedly drafted (but not
signed) by Mr. Odom stating Mr. Odom’s intention to represent
Plaintiff in this case.
Plaintiff’s claims were ultimately consolidated in Wake
County Superior Court, where Defendants’ motions came on for
hearing on 5 November 2012. Plaintiff appeared at the hearing
pro se. By order filed 23 January 2013, the court granted
Defendants’ motions to dismiss “based upon the failure of
plaintiff to have a Summons issued and served with the Complaint
as required by Rule 4 of the North Carolina Rules of Civil
Procedure.” Plaintiff did not appeal from the 23 January 2013
order.
On 11 January 2013, Plaintiff filed a new complaint
alleging essentially the same claims against the same
Defendants. The new complaint was signed by Mr. Odom, and
summonses were served on Defendants. Defendants filed answers
asserting numerous defenses and moving to dismiss Plaintiff’s
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claims pursuant to Rules 12(b)(1),(2),(4),(5), and (6) of the
North Carolina Rules of Civil Procedure. Defendants served Mr.
Odom with all documents.
On 1 July 2013, Mr. Odom filed a motion with the court
seeking pro hac vice admission. Attached to the motion was a
statement signed by Plaintiff in which Plaintiff indicated that
he had retained Mr. Odom to represent him in this case. By
order entered 12 July 2013, the court denied Mr. Odom’s motion
for pro hac vice admission on grounds that Mr. Odom had failed
to associate with a North Carolina attorney in filing his
motion.
Defendants’ motions to dismiss Plaintiff’s claims came on
for hearing on 25 July 2013, at which time Plaintiff requested a
continuance in light of Mr. Odom’s failure to gain pro hac vice
admission. The court denied Plaintiff’s request and proceeded
to hear arguments on the merits of Defendants’ motions. By
order entered 6 August 2013, the trial court dismissed all of
Plaintiff’s claims with prejudice. From this order, Plaintiff
appeals.
II. Analysis
A. Plaintiff’s Request to Withdraw his Complaint
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Plaintiff first asserts that Mr. Odom was unauthorized to
file the 11 January 2013 complaint on his behalf, and,
“[b]ecause of [this] error, Plaintiff moves this matter be
remanded to the North Carolina Superior Court, to allow
Plaintiff to withdraw this complaint, without prejudice; or,
that [he] be allowed to amend the complaint, upon remand, and
correct any deficiencies in filing.” Plaintiff alleges that Mr.
Odom “defrauded” him and engaged in “illegal” conduct and that
Mr. Odom is liable to him for breach of contract and
malpractice. Whether or not Plaintiff may have causes of action
against Mr. Odom, however, is beyond the scope of this appeal.
Our concern here is limited to the validity of the complaint at
issue, and, as Defendants point out, this Court has specifically
held that “a pleading filed by an attorney not authorized to
practice law in this state is not a nullity.” Thiel v.
Detering, 68 N.C. App. 754, 756, 315 S.E.2d 789, 791 (1984); see
also Reid v. Cole, 187 N.C. App. 261, 265, 652 S.E.2d 718, 720-
21 (2007).
Closely related to Plaintiff’s first argument is his
contention that he was not served with Defendants’ filings in
this case – the filings were instead served on Mr. Odom – and
thus Plaintiff “also cite[s] lack of service of process in
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support of his pleas to have the case remanded to allow the case
to be withdrawn and/or amended to cure deficiencies in filing.”
Our review of the record, however, reveals that Plaintiff
consistently represented to Defendants throughout these
proceedings – from the time Plaintiff filed his two original
complaints on 3 January 2012 up until the 25 July 2013 hearing
on Defendants’ motions to dismiss the complaint in the instant
case – that Mr. Odom would be representing him as his attorney
in this case. It appears that Defendants were, in fact,
required to serve Mr. Odom with their filings – and prohibited
from serving them on Plaintiff – under Rule 4.2(a) of the North
Carolina Rules of Professional Conduct, which expressly forbids
an attorney from directly communicating with an individual that
he knows to be represented by another attorney in the action.
This contention is accordingly overruled.
B. Defendants’ Motions to Dismiss
We next address the merits of the trial court’s dismissal
of Plaintiff’s complaint. The trial court dismissed Plaintiff’s
claims with prejudice “pursuant to Rules 12(b)(1),(2),(4),(5),
and (6) of the North Carolina Rules of Civil Procedure based
upon Plaintiff’s failure to properly serve the Defendants, lack
of personal jurisdiction, Plaintiff’s failure to allege waiver
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of governmental immunity, and Plaintiff’s [f]ailure to otherwise
assert valid claims for relief against the Defendants.”
Although there appear to be several grounds upon which dismissal
was appropriate, we affirm the trial court’s decision based upon
the deficiencies present on the face on the complaint, as
discussed below.
This Court has held that certain governmental entities,
such as county boards, departments, and agencies, are not legal
entities capable of being sued. Craig v. County of Chatham, 143
N.C. App. 30, 31, 545 S.E.2d 455, 456 (2001), aff’d in part,
rev’d in part on other grounds, 356 N.C. 40, 565 S.E.2d 172(2002) (noting that, unlike the county itself, which possesses
“the right to sue and be sued” pursuant to N.C. Gen. Stat. §
153A-11, the Chatham County Board of Health and Chatham County
Board of Commissioners are not entities capable of being sued).
Accordingly, the claims asserted in Plaintiff’s complaint
against WCHS and WPD, which fall within the purview of
governmental entities incapable of being sued, were correctly
dismissed.
The remaining Wake County and Wendell Defendants consist of
individuals employed by WCHS and WPD, respectively. This Court
has stated that “[g]overnmental immunity shields municipalities
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and the officers or employees thereof sued in their official
capacities from suits based on torts committed while performing
a governmental function.” Kephart by Tutwiler v. Pendergraph,
131 N.C. App. 559, 563, 507 S.E.2d 915, 918 (1998) (emphasis
added). County officers and employees are likewise shielded by
governmental immunity “when they are sued in their official
capacities.” Childs v. Johnson, 155 N.C. App. 381, 386, 573
S.E.2d 662, 665 (2002).
Our Supreme Court has stated the following with respect to
the manner in which claims may be properly asserted against a
defendant in his individual, as opposed to his official,
capacity:
Pleadings should indicate in the caption the
capacity in which a plaintiff intends to
hold a defendant liable. For example,
including the words “in his official
capacity” or “in his individual capacity”
after a defendant’s name obviously clarifies
the defendant’s status. In addition, the
allegations as to the extent of liability
claimed should provide further evidence of
capacity. Finally, in the prayer for relief,
plaintiffs should indicate whether they seek
to recover damages from the defendant
individually or as an agent of the
governmental entity.
Mullis v. Sechrest, 347 N.C. 548, 554, 495 S.E.2d 721, 724-25
(1998). Our Supreme Court recently indicated that the foregoing
Mullis “directive is mandatory” in determining whether a
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complaint asserts a claim against a defendant in his individual
capacity. White v. Trew, 366 N.C. 360, 364, 736 S.E.2d 166, 169
(2013) (“Because the indicia of capacity mandated by Mullis are
absent from the caption, allegations, and prayer for relief, we
must presume that defendant is being sued in only his official
capacity.”).
Our review of Plaintiff’s complaint reveals that Plaintiff
has alleged claims against these Defendants in their official
capacities. Neither the caption of the complaint nor the prayer
for relief indicates an intention to assert claims or seek
damages against these Defendants in their individual capacities.
The body of the complaint does not specify that the claims are
asserted against any Defendant in his or her individual
capacity; in fact, paragraph 38 of the complaint states that
each of the Wake County Defendants “acted in their official
capacity as officers, agents, and/or employees of defendant
WCHS,” and, similarly, paragraph 39 of the complaint states that
each of the Wendell Defendants “acted in their official capacity
as officers, agents, and/or employees of defendant WPD.” We,
therefore, presume that the complaint asserts claims against
these Defendants in their official capacities only. Id.Because all of the claims set forth in Plaintiff’s
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complaint are asserted against either entities incapable of
being sued or employees of those entities in their official
capacities only2, and because the complaint does not specifically
allege a waiver of governmental immunity, we hereby affirm the
trial court’s dismissal of these claims. Paquette v. County of
Durham, 155 N.C. App. 415, 418, 573 S.E.2d 715, 717 (2002).
AFFIRMED.
Judges STROUD and HUNTER, JR. concur.
Report per Rule 30(e).
2
We note that there is no question that the conduct of the
individual Defendants of which Plaintiff complains concerns
Defendants’ conduct while performing official government
functions. Kephart by Tutwiler, 131 N.C. App. at 563, 507
S.E.2d at 918.