Doe v. Wake County

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA18-109
Filed: 2 April 2019
Wake County, Nos. 16 CVS 15483, 17 CVS 3821
JANE DOE, Plaintiff,
v.
WAKE COUNTY, ET AL., Defendants.
Appeal by Plaintiff from judgment entered 14 July 2017 by Judge R. Allen
Baddour in Wake County Superior Court. Heard in the Court of Appeals 5 September
2018.
John Locke Milholland IV, Attorney at Law PLLC, by J. Locke Milholland IV,
for plaintiff-appellant.
Deputy County Attorney Roger A. Askew, Senior Assistant County Attorney
Mary Boyce Wells and Assistant County Attorney Brian K. Kettmer, for
defendants-appellees Wake County, et al.
MURPHY, Judge.
Plaintiff, Jane Doe, brought claims against Wake County, Wake County
Health Services (“WCHS”), and a number of individual WCHS employees for failing
to take action to protect her from a dangerous and abusive household. The Wake
County Superior Court dismissed all of Plaintiff’s claims under North Carolina Rules
of Civil Procedure 12(b)(1), (4), (5), (6), the statute of limitations, and the prior
pending action doctrine. After careful review, we affirm the trial court’s dismissal of
Plaintiff’s claims.
DOE V. WAKE COUNTY, ET AL.
Opinion of the Court
BACKGROUND
Plaintiff was born in Wake County in 1996 to a mother who had previously
been reported to WCHS for neglecting her first-born child. At birth, Plaintiff tested
positive for cocaine, and her mother admitted to using cocaine during her pregnancy.
Throughout Plaintiff’s youth, WCHS received and investigated at least eight reports
indicating her household was a potentially dangerous environment for a child. WCHS
investigated the reports and, at various times, referred Plaintiff’s mother for
counseling, examined Plaintiff for signs of abuse, and provided in-home services to
Plaintiff’s family.1
Plaintiff sued WCHS and its employees—identified as “John Doe 1, John Doe
2, . . . John Doe N”—in tort and under 42 U.S.C. § 1983 for failing to remove her from
the care of her mother at eight different points in time. In response, Defendants
asserted a number of affirmative defenses and moved to dismiss the complaint on
various grounds. Plaintiff moved for leave to amend her complaint to add parties and
three days later filed a second complaint, which named Wake County, WCHS, and a
number of WCHS employees in both their individual and official capacities.
Defendants moved to dismiss this second complaint on the same grounds as the first
and also raised the prior pending action doctrine. The trial court dismissed both of
1 In resolving this appeal, which is comprised solely of procedural issues, we need not describe
the specifics of each incident but nevertheless note that the facts of Plaintiff’s complaint paint the
picture of a tragic and frightening childhood.
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DOE V. WAKE COUNTY, ET AL.
Opinion of the Court
Plaintiff’s complaints and denied her motion for leave to amend as futile. Plaintiff
appeals.
ANALYSIS
“We review a trial court’s decision to dismiss a complaint de novo.” Robert K.
Ward Living Trust ex rel. Schulz v. Peck, 229 N.C. App. 550, 552, 748 S.E.2d 606, 608
(2013). “Under a de novo review, the court considers the matter anew and freely
substitutes its own judgment for that of the lower tribunal.” Craig v. New Hanover
Cnty. Bd. of Educ., 363 N.C. 334, 337, 678 S.E.2d 351, 354 (2009) (internal quotations
omitted). The trial court dismissed Plaintiff’s claims “pursuant to North Carolina
Rules of Civil Procedure 12(b)(1), [(4), (5), and (6)], the statute of limitations, and the
prior pending action doctrine,” but did not delineate which claims were being
dismissed on which grounds. Nevertheless, we affirm both of the trial court’s
dismissal orders.
A. 16 CVS 15483
In her first complaint, Plaintiff alleged forty causes of action: thirty-two tort
claims against Wake County, WCHS, and their employees (both in their official and
individual capacities), and eight claims under 42 U.S.C. § 1983 alleging constitutional
violations. Additionally, Plaintiff moved to amend her complaint and the trial court
denied her motion. In subsections 1 and 2 below, we address Plaintiff’s tort claims.
In subsections 3 and 4, we analyze her federal claims and motion to amend,
respectively. In all four subsections, we affirm the trial court’s decisions.
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DOE V. WAKE COUNTY, ET AL.
Opinion of the Court
1. Tort Claims against Wake County, WCHS, and Employees in their
Official Capacity
Plaintiffs bringing claims otherwise barred by governmental immunity must
allege a waiver of immunity in their complaint for the trial court to have subject
matter jurisdiction over those claims. M Series Rebuild, LLC v. Town of Mount
Pleasant, 222 N.C. App. 59, 62-63, 730 S.E.2d 254, 257 (2012). “[A] county normally
would be immune from liability for injuries caused by negligent social services
employees working in the course of their duties.” Estate of Earley v. Haywood Cnty.
Dep’t of Soc. Servs., 204 N.C. App. 338, 340, 694 S.E.2d 405, 408 (2010). Here,
Plaintiff “agrees that [her] claims in tort cannot proceed against the County and
defendants in their official capacity[,]” but argues “[a]ll tort claims against defendants
in their individual capacity should proceed.”
Plaintiff correctly recognizes her failure to allege that Wake County waived
immunity is fatal to her complaint to the extent it asserts tort claims against the
county and its officials. Clark v. Burke Cnty., 117 N.C. App. 85, 88, 450 S.E.2d 747,
748 (1994) (“When suing a county or its officers, agents or employees, the complainant
must allege [a] waiver in order to recover.”). The trial court was correct to dismiss all
thirty-two of Plaintiff’s tort claims against Wake County and WCHS, and those
against individual Defendants in their official capacities.
2. “Individual Capacity” Tort Claims
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DOE V. WAKE COUNTY, ET AL.
Opinion of the Court
We next address Plaintiff’s tort claims against county employees in their
individual capacities. See Wright v. Gaston Cty., 205 N.C. App. 600, 602, 698 S.E.2d
83, 86 (2010) (“Plaintiff’s complaint also alleges claims against the [defendants] in
their individual capacities, for which governmental immunity is not applicable.”).
The individual Defendants argue they are entitled to dismissal based upon public
official immunity because Plaintiff’s claims against them in their individual
capacities fail “to sufficiently ‘pierce the cloak’ of public official [immunity] . . . .” We
agree.
“Public official immunity is a derivative form of governmental immunity.”
Wilcox v. City of Asheville, 222 N.C. App. 285, 288, 730 S.E.2d 226, 230 (2012)
(internal citations omitted). The doctrine distinguishes between public officials, who
are entitled to immunity, and public employees, who are not. Id. Social workers are
generally considered public officials, or state employees who exercise some amount of
sovereign power through acts “requiring personal deliberation, decision and
judgment.” Hobbs v. N.C. Dep't of Human Res., 135 N.C. App. 412, 421, 520 S.E.2d
595, 602 (1999); Meyer v. Walls, 347 N.C. 97, 113-14, 489 S.E.2d 880, 889 (1997).
To rebut a claim of public official immunity and hold a public official liable in
her individual capacity, a plaintiff’s complaint must allege “that [the official’s] act, or
failure to act, was corrupt or malicious, or that [the official] acted outside of and
beyond the scope of his duties.” Hobbs, 135 N.C. App. at 422, 520 S.E.2d at 603.
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DOE V. WAKE COUNTY, ET AL.
Opinion of the Court
Additionally, our Supreme Court has noted, “a conclusory allegation that a public
official acted willfully and wantonly should not be sufficient, by itself, to withstand a
Rule 12(b)(6) motion to dismiss. The facts alleged in the complaint must support such
a conclusion.” Meyer, 347 N.C. at 114, 489 S.E.2d at 890.
The facts alleged in Plaintiff’s complaint do not support a conclusion the
individual workers acted corruptly, maliciously, or outside the scope of their duties.
Plaintiff does not offer any facts or forecast any evidence that any individually named
defendant took actions that went beyond—at worst—simple negligence such that her
complaint pierces the cloak of public official immunity. “Because we presume [the]
defendant[s] discharged [their] duties in good faith and exercised [their] power in
accordance with the spirit and purpose of the law and plaintiffs have not shown any
evidence to the contrary,” we hold Plaintiff’s complaint “fail[s] to allege facts which
would support a legal conclusion that defendant[s] acted with malice.” Mitchell v.
Pruden, ___ N.C. App. ___, ___, 796 S.E.2d 77, 83 (2017).
The allegations in Plaintiff’s complaint do not overcome Defendants’ public
official immunity, and the trial court did not err in granting the Defendants’ motion
to dismiss under the doctrine of public official immunity.
3. 42 U.S.C. § 1983 Claims
Plaintiff argues the trial court’s dismissal of her 42 U.S.C. § 1983 claims for
failure to state a claim under Rule 12(b)(6) was improper. We disagree. Dismissal
under 12(b)(6) is appropriate where “the complaint on its face reveals that no law
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Opinion of the Court
supports the plaintiff’s claim.” Wood v. Guilford Cnty., 355 N.C. 161, 166, 558 S.E.2d
490, 494 (2002). “The court must construe the complaint liberally and should not
dismiss the complaint unless it appears beyond a doubt that the plaintiff could not
prove any set of facts to support his claim which would entitle him to relief.” Leary
v. N.C. Forest Products, Inc., 157 N.C. App. 396, 400, 580 S.E.2d 1, 4 (2003). Here,
Plaintiff has not alleged any claim entitling her to relief under 42 U.S.C. § 1983.
a. Due Process Clause
Plaintiff’s suit is almost identical to that in DeShaney v. Winnebago County
Department of Social Services, 489 U.S. 189, 103 L. Ed. 2d 249 (1989). In DeShaney,
the Department of Social Services (“DSS”) suspected a child had been abused by his
father, but nevertheless allowed him to return home with his father. Id. at 192, 103
L. Ed. 2d at 256-57. Shortly thereafter, the child was beaten nearly to death by his
father and sued DSS under 42 U.S.C. § 1983. Id. at 193, 103 L. Ed. 2d at 257. The
U.S. Supreme Court stated that the Due Process Clause of the Fourteenth
Amendment “does not transform every tort committed by a state actor into a
constitutional violation.” Id. at 202, 103 L. Ed. 2d at 263. “Because . . . the State had
no constitutional duty to protect [the child] against his father’s violence, its failure to
do so—though calamitous in hindsight—simply does not constitute a violation of the
Due Process Clause.” Id.
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DOE V. WAKE COUNTY, ET AL.
Opinion of the Court
Under DeShaney, a state actor’s failure to take affirmative action to protect a
private individual is not actionable under the Fourteenth Amendment and 42 U.S.C.
§ 1983. Id. As such, Plaintiff may not recover under 42 U.S.C. § 1983 and the Due
Process Clause. We affirm the trial court’s dismissal of those claims.
b. Equal Protection Clause
Plaintiff also argues the trial court erred in dismissing her 42 U.S.C. § 1983
claims to the extent they allege violations of her rights under the Equal Protection
Clause. We disagree.
Plaintiff’s “class of one” equal protection argument is largely premised upon an
incorrect interpretation of two footnotes in DeShaney. Footnote two denies the
plaintiff’s argument that his equal protection rights were violated because he had an
“entitlement” to receive protective services. Id. at 195, 103 L. Ed. 2d at 258, note 2.
Similarly, footnote three makes the common-sense statement that “[t]he State may
not, of course, selectively deny its protective services to certain disfavored minorities
without violating the Equal Protection Clause.” Id. at 197, 103 L. Ed. 2d at 259, note
3. Both footnotes are, of course, dicta, and neither dilutes the case’s central holding
that a state social worker’s failure to take affirmative action to protect a private
individual does not amount to a constitutional violation. Id. at 202, 103 L. Ed. 2d at
263. Plaintiff does not cite any authority in our jurisdiction or elsewhere that states
otherwise.
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DOE V. WAKE COUNTY, ET AL.
Opinion of the Court
Assuming arguendo Plaintiff’s equal protection claim is not barred by
DeShaney, Plaintiff nevertheless fails to state a “class of one” equal protection claim
upon which relief may be granted. “Our cases have recognized successful equal
protection claims brought by a ‘class of one,’ where the plaintiff alleges that she has
been intentionally treated differently from others similarly situated and that there is
no rational basis for the difference in treatment.” Village of Willowbrook v. Olech,
528 U.S. 562, 564, 145 L. Ed. 2d 1060, 1063 (2000). On its face, this pleading
requirement is similar to that of a plaintiff attempting to pierce the cloak of public
official immunity. As we stated in Section A-2, infra, Plaintiff’s complaint fails to
adequately allege facts that the public officials acted with malice or corruption, and
for the same reason she has failed to state a class of one equal protection claim.
WCHS’s failure to take affirmative actions to protect Plaintiff from a
dangerous household is not a constitutional violation and therefore does not render
Wake County or its agents liable in the manner Plaintiff’s complaint alleges. The
trial court’s dismissal of Plaintiff’s 42 U.S.C. § 1983 claims is affirmed.
4. Plaintiff’s Motion to Amend
Plaintiff additionally argues the Superior Court abused its discretion by
denying Plaintiff’s Motion for Leave to Amend her first suit. “A trial court abuses its
discretion only where no reason for the ruling is apparent from the record. Our
Courts have held that reasons justifying denial of leave to amend [include] . . . futility
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Opinion of the Court
of amendment.” Rabon v. Hopkins, 208 N.C. App. 351, 353-54, 703 S.E.2d 181, 184
(2010) (internal citation omitted). Here, it is apparent from the record that the trial
court’s reason for denying Plaintiff’s motion was that such an amendment would be
futile.
Plaintiff sought leave to amend her first complaint in order to replace
defendants “John Doe 1, John Doe 2, etc.” with named defendants. However, for the
reasons discussed above, Plaintiff failed to state a claim upon which relief could be
granted. Therefore, any further amendment would be futile and the Superior Court’s
denial of Plaintiff’s Motion for Leave to Amend was not an abuse of discretion.
B. 17 CVS 3821
For the reasons stated in Section A, infra, the trial court did not err in
dismissing Plaintiff’s second complaint. Additionally, the prior pending action
doctrine serves as an independent bar to Plaintiff’s second suit.
When “the parties and subject matter of the two suits are substantially similar,
the first action will abate the subsequent action if the prior action is determined to
be pending in a court within the state having like jurisdiction.” Eways v. Governor’s
Island, 326 N.C. 552, 559, 391 S.E.2d 182, 186 (1990). “This is so because the court
can dispose of the entire controversy in the prior action” and, by doing so, render the
subsequent action moot. Clark v. Craven Reg’l Med. Auth., 326 N.C. 15, 20, 387
S.E.2d 168, 171 (1990). “The ordinary test for determining whether or not the parties
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Opinion of the Court
and causes are the same for the purpose of abatement by reason of the pendency of
the prior action is this: Do the two actions present a substantial identity as to parties,
subject matter, issues involved, and relief demanded?” Cameron v. Cameron, 235
N.C. 82, 85, 68 S.E.2d 796, 798 (1952).
Plaintiff brought her second suit against Wake County and WCHS during the
pendency of her first suit. Both were filed in the Wake County Superior Court, the
first on 22 December 2016 and the second on 27 March 2017. The subject matter of
both cases is identical; Plaintiff asserted exactly the same claims, made virtually
identical factual allegations, and demanded the same relief in both complaints.
Additionally, Plaintiff’s suits presented substantially identical parties, the only
difference being that the first suit listed “John Doe 1, John Doe 2, . . . John Doe N,”
and the second suit listed named Defendants previously identified as John Doe. Both
cases are between Plaintiff and Wake County, WCHS, and employees thereof. The
trial court did not err in dismissing Plaintiff’s second suit, 17 CVS 3821, under the
prior pending action doctrine.
CONCLUSION
We affirm the trial court’s orders granting Defendants’ motions to dismiss
under North Carolina Rule of Civil Procedure 12(b)(6), in 16 CVS 15483, and the prior
pending action doctrine, in 17 CVS 3821. Likewise, we affirm the trial court’s denial
of Plaintiff’s Motion for Leave to Amend.
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DOE V. WAKE COUNTY, ET AL.
Opinion of the Court
AFFIRMED.
Judges STROUD and ZACHARY concur.
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