DocketNumber： No. 4:13-CV-107-D
Judges： III
Filed Date： 2/18/2015
Status： Precedential
Modified Date： 10/18/2024
ORDER
This case concerns Pamlico County’s decision to remove temporarily Sonya Perry’s (“Perry” or “plaintiff’) three minor children from her custody due to alleged child abuse. On March 1, 2013, Perry sued Pamlico County, Robert S. Johnson, and Betsy Strag. See Compl. [D.E. 1-1], Johnson is the Director of the Pamlico County Division of Social Services (“DSS”),
On July 30 and October 17, 2014, defendants moved for summary judgment [D.E. 40, 70]. Perry responded in opposition [D.E. 54, 73], and defendants replied [D.E. 66]. As explained below, the court grants defendants’ motions for summary judgment.
On September 27, 2009, Perry and her three children, L.K., C.K., and A.L., were at home with Perry’s then live-in boyfriend, Frank LaBoy (“LaBoy”). Perry Dep. [D.E. 44-2] 3-4 (deposition pages 12, 16); Compl. ¶¶ 12-16.
By the time the paramedics arrived, C.K. had regained consciousness. Id. 17. Emergency Medical Technician Michelle L. Wilkins Allen (now Michelle Smith, hereinafter “EMT Alien-Smith”) responded to the call and prepared an incident report. See Smith Aff. [D.E. 47-2] 1, 7. EMT Alien-Smith reported that, upon arrival, she heard Perry’s mother, Kathleen Vuinovich (“Vuinovich”), state that “if he hurt her again he is gone she .has had enough.” Id. 7; but see Perry Dep. 51; Vuinovich Dep. [D.E. 46-1] 6, 10 (deposition pages 19-20, 35). EMT Alien-Smith assessed C.K. and noted that she “was slightly lethargic but responsive” and had been crying. Smith Aff. 7. EMT Allen-Smith also noted that C.K. had “[n]o obvious bruises to back or head” but that she had “a cast on her right arm.” Id. Perry told EMT Alien-Smith that C.K. had hurt her arm two weeks earlier while roller skating under LaBoy’s care. Id.; cf. Perry Dep. 31, 65 (noting that C.K. broke her arm roller-skating but that Perry was present). C.K. told EMT Alien-Smith that “Daddy broke [her] arm.” Smith Aff. 7. EMT Alien-Smith interviewed LaBoy regarding the bedroom incident. Id. La-Boy stated that when he went to put C.K. on the bed, “she kept kicking and waving her arms and he dropped her.” Id. LaBoy could not identify for EMT Alien-Smith how or where C.K. landed. Id.
While another paramedic took C.K’s vital signs, EMT Alien-Smith- spoke with Vuinovich, who stated .that LaBoy “has hurt [C.K.] before” but that “[h]e wont [sic] touch the older child because she will tell on him and the youngest is his child so he don’t [sic] touch her.” Id. C.K. and Perry then boarded the ambulance. See id.; Perry Dep. 19. During the 20-minute drive to the hospital, EMT Alien-Smith spoke with Perry. See Smith Aff. 7; Perry Dep. 20-21. During that conversation, Perry informed EMT Alien-Smith that Perry had previously “come home to find the patient with a bloody mouth and that [LaBoy] had hit [C.K.].” Smith Aff. 7. Perry also informed EMT Alien-Smith that she “was trying to make [LaBoy] stop on her own as she did not want social services involved.” Id. At the hospital, EMT Alien-Smith advised C.N’s nurse and the emergency room doctor that she suspected child abuse. Id. EMT Alien-Smith also called the Pamlico County DSS and spoke with Annie Donaldson, a DSS social work
Once admitted to the hospital, Perry stayed with C.K. in her exam room while LaBoy, Vuinovich, and the other two children stayed in the waiting room. Perry Dep. 22. While in the hospital’s waiting room, LaBoy disciplined A.L. by striking her on her bottom.' See Pl.’s Resp. [D.E. 54] 2. A triage nurse, Stacey Barnes, witnessed the disciplinary action and reported it to C.K.’s physician, Doctor Gordon H. Bobbett, II, and later to the DSS social workers. See Perry Dep. Ex. 2 [D.E. 44-2] 109; Perry Dep. Ex. 3 [D.E. 44-2] 114. Nurse Barnes told the social workers that LaBoy had yelled at the child and had “popped” the skin on A.L.’s bottom. Perry Dep. Ex. 3 [D.E. 44-2] 114. Nurse Barnes claimed that the incident was so upsetting to her that she “went into another little private room and cried.” Id. In his report, Dr. Bobbett noted Nurse Barnes’s concerns regarding LaBoy’s active “abus[e] [of] this patient’s sibling out in the waiting room.” Perry Dep. Ex. 2 [D.E. 44-2] 109.
As for C.K., Doctor Bobbett noted his “obvious concern[s] ... for abuse” given the current incident as well as a review of C.K’s medical records, which showed that C.K. had “several [past] orthopedic type concerns and injuries,” including “a facial injury in January of 2008, in July 2008 a hand injury, and a hand injury in September 2009.” Perry Dep. Ex. 2 [D.E. 44-2] 110. Dr. Bobbett spoke with Vuinovich, and he reported that she told him that “she has noticed things that have been concerning over the past 6 months or more.” Id. 107; cf. Vuinovich Dep. 25-28. Doctor Bobbett noted that C.K. “stated that her mother’s boyfriend broke her arm” and logged a specific concern that “the patient’s mother lacked ability to care for the child safely or her siblings.” Perry Dep. Ex. 2 [D.E. 44-2] 110. Dr. Bobbett also contacted DSS. Id. 109-110.
Annie Donaldson and Lauren Weatherly of the Pamlico County DSS arrived at the hospital to investigate. See Weatherly Aff. [D.E. 48-1] 1; Donaldson Dep. [D.E. 45-2] 4; Perry Dep. Ex. 3 [D.E. 44-2] 111. The social workers interviewed Perry, LaBoy, Vuinovich, C.K., L.K., Detective Billy Jewell of the Pamlico County Sheriffs Department, and several members of the medical staff, including Doctor Bobbett. See Perry Dep. Ex. 3 [D.E. 44-2] 111-16; Weatherly Aff. ¶ 5. The social workers noted that Perry “fears [LaBoy].” Perry Dep. Ex. 3 [D.E. 44-2] 112; but see Perry Dep. 41-42. They also noted that, when asked why LaBoy was allowed in her home, Perry told the social workers that she wanted him “in the home to ensure A.L.’s safety.” Perry Dep. Ex. 3 [D.E. 44-2] 112; but see Perry Dep. 39-43 (claiming the social workers lied in their narrative). Perry explained that she and LaBoy shared custody of A.L. and that she thought it was better to have LaBoy “in the home with the child than be out of the home and [for A.L. to] be abused.” Perry Dep. Ex. 3 [D.E. 44-2] 112. The social workers also spoke with Dr. Bobbett about his concerns and possible options. Id. Dr. Bobbett told the social workers that “DSS needed to take custody of these children.” Id.
Donaldson and Weatherly then spoke separately with C.K., who could not remember what happened that day but explained to them that she hurt her arm while she was “skating at [A.L.’s] grandma’s house & fell.” Id. 113. When asked if LaBoy had ever hurt her, C.K. said “yes” and explained that “[LaBoy] threw her on one of her toys and it made her lip bleed.” Id. 113-14. The social workers then compared notes with Detective Jewell, who had also interviewed C.K. Detective Jewell told the social workers that
After receiving permission from their manager, the social workers asked Perry to make a kinship placement for the night in light of “the nature of the allegations and the investigation.” Donaldson Dep. 71; see Perry Dep. Ex. 3 [D.E. 44-2] 114. Perry agreed to send the children to her mother’s house. See Donaldson Dep. 71-73. Donaldson and Weatherly then spoke with Vuinovich about a possible “kinship placement” with her. Perry Dep. Ex. 3 [D.E. 44-2] 113. They asked Vuinovich if she had a history of criminal behavior or a history with Child Protective Services and she 'told them “[n]o, not within the last 10 years.” Id.; but see Vuinovich Dep. 33-35. The social workers then went to Vuino- • vich’s home to conduct a home study. See Perry Dep. Ex. 3 [D.E. 44-2] 114, 116. After conducting a kinship assessment and investigating the home, Donaldson and Weatherly approved the kinship placement with Vuinovich for the night. See id. 116; Weatherly Aff. ¶ 5; Donaldson Dep. 71-72.
On September 28, 2009, Betsy Strag (“Strag” or “defendant Strag”), a Pamlico County DSS social worker, and Robert Johnson (“Johnson” or “defendant Johnson”), Director of the Pamlico County DSS, joined the investigation. See Perry Dep. Ex. 3 [D.E. 44-2] 116. DSS agents ran a background check on Vuinovich and discovered that Vuinovich “was not truthful” about her criminal history and involvement with Child Protective Services. Id.
On September 28, 2009, District Court Judge Mack signed orders placing each of Perry’s children in the nonsecure custody of DSS. See [D.E. 50-1] 1-12 (initial orders for nonsecure custody). On September 29, 2009, Judge Mack’s orders were filed with the court. See id. District Court Judges Alexander, Spencer, and Waddell issued orders for continued nonsecure custody on October 2, 2009, October 7, 2009, October 14, 2009, October 28, 2009, November 4, 2009, November 18, 2009, December 16, 2009, and January 6, 2010. See [D.E. 50-1] 13-92. The children were placed in foster care until “home studies [could] be completed on those relatives seeking placement.” [D.E. 50-1] 14 (Oct. 2, 2009 order).
On October 2, 2009, the court ordered DSS to “use its best efforts to serve the respondent fathers and provide or arrange for services aimed at eliminating the need
At the October 14, 2009, hearing, Perry’s counsel objected to the grounds for nonsecure custody. Perry’s counsel argued that DSS was violating Perry’s constitutional rights by failing “to carry its burden to show that there is some clear and convincing reason” for any nonsecure custody. Oct. Hr’g Tr. [D.E. 46-2] 10-11 (transcript pages 35-38). The court, however, held that Perry’s objection was a matter for the adjudication hearing and found that grounds for continued nonse-cure custody existed concerning each child. See id. 38; [D.E. 50-1] 22-34 (Oct. 14, 2009 orders). At that same hearing, the court changed C.K’s placement based on a parenting agreement between Perry and C.K’s biological father, Kyle Chute. See [D.E. 50-1] 22-25 (Oct. 14, 2009 order for C.K.); Parenting Agreement [D.E. 51-3]. As a result, C.K. was sent to Maine to live with Chute and his family on a “trial placement.” [D.E. 50-1] 24 (Oct. 14, 2009 order for C.K.). The court ordered Chute to bring C.K. back for the adjudication hearing, which the court scheduled for November 18, 2009. Id. The court also ordered “supervised visitation” for Perry with L.K. and A.L. at the DSS offices. See Oct. Hr’g Tr. 34-35; [D.E. 50-1] 27-34 (Oct. 14, 2009 orders for A.L. and L.K.).
On November 9, 2009, DSS’s counsel moved to continue the adjudication hearing because Dr. Bobbett was unavailable to testify. See Perry Dep. Ex. 24 [D.E. 44-2] 149-50. The court granted the motion to continue on November 18, 2009, and continued the adjudication hearing until December 16, 2009. See [D.E. 50-1] 59-70 (Nov. 18, 2009 orders).
On January 6, 2010, the adjudication hearing began. DSS called several witnesses, including Dr. Bobbett, EMT Alien-Smith, and Detective Jewell. DSS rested its case that same day. See Jan. Hr’g Tr. [D.E. 46-4] 31 (transcript page 119). The court determined at the close of DSS’s case that DSS had provided sufficient evidence to survive a motion to dismiss on the claims of neglect and dependency as to all three children, but that DSS had failed to prove abuse of C.K. See id. 126. Thus, the court dismissed the abuse allegation. Id. The court continued the hearing until March 2, 2010, and ordered the children to remain in their current placements until then. See [D.E. 50-1] 82-92 (Jan. 6, 2010 orders); Jan. Hr’g Tr. 157. On March 2, 2010, the hearing resumed. At the close of evidence on that day, the court dismissed the petitions with prejudice and ordered DSS to return the children to Perry. See Mar. Hr’g Tr. [D.E. 54-5] 178; [D.E. 50-1] 93-104 (Mar. 2, 2010 orders).
On March 3, 2010, Perry filed ex parte orders with Judge Spencer for the return of her children. See [D.E. 51-1] 9-10; Defs.’ Mem. Supp. Mot. Summ. J. [D.E. 44] 11 n. 11; Pl.’s Resp. [D.E. 54] 10-11. When DSS learned that L.K. was not yet in Perry’s custody, DSS made efforts “to have her returned.” Donaldson Dep. 66; see [D.E. 51-1] 10. L.K. was returned to her mother shortly thereafter. Compare Donaldson Dep. 66 (claiming L.K. was returned on March 3, 2010), with Perry Dep. 144 (claiming L.K. was returned on March 4, 2010). During the week of March 8, 2010, C.K. returned from Maine to Perry’s custody. See Perry Dep. 127. Full legal custody of each child was then restored to Perry.
II.
Summary judgment is appropriate if the moving party demonstrates that there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter "of law. Fed.R.Civ.P. 56(a). The party seeking summary judgment must initially show an absence of genuine dispute of material facts or the absence of evidence to support the non-moving party’s case. See Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If a moving party meets its burden, the nonmoving party must “come forward with specific facts showing that there is a genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (quotation and emphasis omitted). A genuine issue for trial exists if there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). “The mere existence of a scintilla of evidence in support of the plaintiffs position [is] insufficient.” Id. at 252, 106 S.Ct. 2505; see Beale v. Hardy, 769 F.2d 213, 214 (4th Cir.1985) (“The nonmoving party, however, cannot create a genuine issue of material fact through mere speculation or the building of one inference upon another.”). Moreover, the court “is not required to scour the record in search of evidence to defeat a motion for summary judgment.” Ritchie v. Glidden Co., 242 F.3d 713, 723 (7th Cir.2001) (quotation omitted); Muhammad v. Giant Food Inc., 108 Fed.Appx. 757, 764 (4th Cir.2004) (quoting Ritchie approvingly).
A.
Defendants argue that Perry’s claims are untimely. Congress has not adopted a specific statute of limitations for actions brought under 42 U.S.C. § 1983. Instead, the analogous state statute of limitations applies. See, e.g., Burnett v. Grattan, 468 U.S. 42, 48-49, 104 S.Ct. 2924, 82 L.Ed.2d 36 (1984); Nasim v. Warden, Md. House of Corr., 64 F.3d 951, 955 (4th Cir.1995) (en banc). Specifically, the state statute of limitations for personal injury actions governs claims brought under 42 U.S.C. § 1983. Wallace v. Kato, 549 U.S. 384, 387, 127 S.Ct. 1091, 166 L.Ed.2d 973 (2007). Perry’s claims arose in North Carolina, and North Carolina has a three-year statute of limitations for personal injury actions. See N.C. Gen.Stat. §§ 1-52(5), (16). Thus, North Carolina’s three-year statute of limitations governs Perry’s federal claims and her state claims. See, e.g., Franks v. Ross, 313 F.3d 184, 194 (4th Cir.2002) (applying the personal injury limitations period to a Fourteenth Amendment claim); Brooks v. City of Winston-Salem, 85 F.3d 178, 181 (4th Cir.1996) (applying the personal injury limitations period to a section 1983 claim); Nat’l Adver. Co. v. City of Raleigh, 947 F.2d 1158, 1161-62 & n. 2 (4th Cir.1991) (section 1983); Goodman v. Living Ctrs.-Se., Inc., 759 S.E.2d 676, 680 (N.C.Ct.App.2014) (negligence); Turner v. Thomas, 762 S.E.2d 252, 258 (N.C.Ct.App.2014) (malicious prosecution); Amward Homes, Inc. v. Town of Cary, 206 N.C.App. 38, 58-59, 698 S.E.2d 404, 419-20 (2010) (noting that for state constitutional violations the limitations period is determined by the statute of limitations encompassing the claim at issue); Scott & Jones, Inc. v. Carlton Ins. Agency, Inc., 196 N.C.App. 290, 297, 677 S.E.2d 848, 853 (2009) (negligence); Staley v. Lingerfelt, 134 N.C.App. 294, 297, 517 S.E.2d 392, 395 (1999) (malicious prosecution and North Carolina constitutional violations involving personal injury).
Although the limitations period for claims brought under section 1983 is borrowed from state law, the time for accrual of a federal action is a question of federal law. See, e.g., Wallace, 549 U.S. at 388, 127 S.Ct. 1091; Brooks, 85 F.3d at 181; Nasim, 64 F.3d at 955. Under federal law, a claim accrues when the plaintiff knows or has reason to know of the injury
In opposition to this conclusion, Perry argues that she could not have known she had a possible cause of action until March 2, 2010, when the judge ruled in her favor and dismissed the petitions. See Pl.’s Resp. 15. According to Perry, before the favorable March 2010 ruling, she believed she did not have a claim against the defendants because various judges “told the Plaintiff that the Defendants were justified keeping her children from her.” Id.
Unfortunately for Perry, her own admissions and actions belie her argument. See, e.g., id. 13 (claiming that “[n]or can the Defendants’ claim they had no notice that their conduct was unlawful since Perry’s attorney communicated to the Defendants’ agent that her conduct was unlawful and frequently stated the same [in] the presence of the Defendants.”). After all, it was Perry who put the court on notice of the petitions’ deficiencies when she repeatedly raised the issue at several custody hearings. For example, at the hearing on October 14, 2009, Perry’s counsel objected to the basis for nonsecure custody, claiming that DSS had failed “to carry its burden to show that there is some clear and convincing reason” for nonsecure custody. Oct. Hr’g Tr. 35-38. Perry’s counsel reiterated the objection at the hearing on November 18, 2009. See Nov. Hr’g Tr. 48-51. There, Perry’s attorney argued that DSS removed the children from Perry’s custody without adequate grounds, that the DSS petitions were, misleading, and that DSS failed to make adequate reunification efforts. See id. Perry makes similar allegations in her complaint. See Compl. ¶¶ 17-25. Hence, at the very latest, Perry was aware of her potential claims against the defendants as of November 18, 2009. However, even if the court were to consider November 18, 2009, the applicable accrual date, Perry’s claims are still time barred.
Alternatively, Perry attempts to classify her case as a “continuing wrong,” by merely citing Williams v. Blue Cross Blue Shield of North Carolina, 357 N.C. 170, 581 S.E.2d 415 (2003). The continuing-wrong doctrine is an exception to the general rule that a state-law claim accrues when the right to maintain a suit arises. “Under the continuing wrong doctrine, the statute of limitations does not start running until the violative act ceases.” Marzee v. Nye, 203 N.C.App. 88, 94, 690 S.E.2d 537, 542 (2010) (quotations and citations omitted). “A continuing violation is occasioned by continual unlawful acts, not by continual ill effects from an original violation.” Williams, 357 N.C. at 179, 581
Williams involved a constitutional challenge to a new civil rights ordinance and whether the statute of limitations began to accrue on the date the ordinance became effective or the date that the ordinance was enforced against the party to the suit. Williams, 357 N.C. at 178, 581 S.E.2d at 422. The Supreme Court of North Carolina held that the continuing-wrong doctrine applied because the harm to the party “became apparent only upon enforcement of the [ordinance through the filing of lawsuits and proceedings.” Id. at 179, 581 S.E.2d at 423. Although both Williams and this case involved multiple legal proceedings, unlike in Williams, this case involves a “single harm, measurable and compensable” on the day the wrong giving rise to the suit was committed. Id. at 180, 581 S.E.2d at 424. Perry had “notice at the moment [of the original violation] that [she] would suffer a specific loss at a specific time.” Id., 581 S.E.2d at 424. Although at the moment of the initial deprivation of her children Perry did not know exactly how long that loss would last, her injury was not “prospective and speculative.” Id., 581 S.E.2d at 423. The continuation of nonse-cure custody was a continued effect from the original removal and not a separate or unexpected deprivation beginning the limitations period anew.
Furthermore, at every hearing the court analyzed whether grounds for “continued nonsecure custody” existed while the adjudication hearing on the merits of the original deprivation was pending. See [D.E. 50-1] 13-92; In re Guarante, 109 N.C.App. 598, 601, 427 S.E.2d 883, 885 (1993) (noting that “children’s interests are better protected by allowing such cases to proceed to an adjudicatory hearing, rather than permitting a judge tp attempt to evaluate the merits of the case at an informal custody hearing”). The trial court based each interim continuation order on a finding that there was “a reasonable factual basis to believe that the matters alleged in the petition [were] true” and had not been rectified. See [D.E. .50-1] 13-92. Thus, the continuation of nonsecure custody was a continual ill effect of the original violation. Moreover, the interim court orders cannot fairly be attributed to the defendants or considered to be the defendants’ “continual unlawful acts.” Stratton v. Royal Bank of Canada, 211 N.C.App. 78, 86, 712 S.E.2d 221, 229 (2011) (“[T]he plaintiff must show a continuing violation by the defendant.” (quotations and alterations omitted) (emphasis added)). Accordingly, Williams does not help Perry. Because Perry’s claims accrued no later than November 18, 2009, the three-year statute of limitations bars all of her claims.
B.
Alternatively, even if Perry’s claims are timely, defendants are entitled to summary
As for Perry’s official-capacity negligence claims against Johnson and Strag, those claims merge into Perry’s negligence claims against Pamlico County. See, e.g., Kentucky v. Graham, 473 U.S. 159, 165-66, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985); Stevenson ex rel. Stevenson v. Martin Cnty. Bd. of Educ., 3 Fed.Appx. 25, 29 (4th Cir.2001) (per curiam) (unpublished); Moua, 2012 WL 252648, at *7; Mullis v. Sechrest, 347 N.C. 548, 554, 495 S.E.2d 721, 725 (1998); Moore v. City of Creedmoor, 345 N.C. 356, 367, 481 S.E.2d 14, 21-22 (1997). Moreover,' governmental immunity bars Perry’s negligence claims against Pamlico County because Perry is suing Pamlico County concerning “the performance of a governmental, rather than proprietary function.” Phillips v. Gray, 163 N.C.App. 52, 55-56, 592 S.E.2d 229, 232 (2004) (quotation omitted): Simply put, Pamlico County’s DSS services “are governmental functions to which governmental immunity applies.” Whitaker v. Clark, 109 N.C.App. 379, 381, 427 S.E.2d 142, 143 (1993).
A county may waive governmental immunity by purchasing insurance, but any waiver is limited to the extent of the insurance coverage. See, e.g., N.C. Gen. Stat. § 153A-435(a); Evans v. Hous. Auth., 359 N.C. 50, 57, 602 S.E.2d 668, 673 (2004); Satorre v. New Hanover Cnty. Bd. of Comm’rs, 165 N.C.App. 173, 176, 598 S.E.2d 142, 144 (2004). If “the insurance policy does not indemnify [the] defendant against the negligent acts alleged in plaintiffs complaint, defendant has not waived its sovereign immunity.” Doe v. Jenkins, 144 N.C.App. 131, 135, 547 S.E.2d 124, 127 (2001); see Dawes v. Nash Cnty., 357 N.C. 442, 445-46, 584 S.E.2d 760, 763 (2003); Estate of Earley ex rel. Earley v. Haywood Cnty. Dep’t of Soc. Servs., 204 N.C.App. 338, 341, 694 S.E.2d 405, 408 (2010).
The events at issue in the complaint occurred between September 2009 and March 10, 2010. See Compl. ¶¶ 1-71; Perry Dep. 127. During that time, Pamlico County had an insurance policy from the North Carolina Association of County Commissioners Liability and Property Pool. See Buck Aff. [D.E. 47-1] ¶ 3. The policy expressly preserved governmental immunity. See Buck Aff. Ex. A [D.E. 47-1] 72, 75, 117-19, 139, 141. Thus, governmental immunity bars Perry’s negligence claims against Pamlico County (including the official-capacity claims against Johnson and Strag). See, e.g., Seibold v. City of Kinston, 268 N.C. 615, 621-23, 151 S.E.2d 654, 658-59 (1966); Owen v. Haywood Cnty., 205 N.C.App. 456, 460-61, 697 S.E.2d 357, 360 (2010); Estate of Earley, 204 N.C.App. at 342-14, 694 S.E.2d. at 409-10; Patrick v. Wake Cnty. Dep’t of Human Servs., 188 N.C.App. 592, 596-97, 655 S.E.2d 920, 923-24 (2008).
A public officer will not lose public official immunity if the officer’s judgment is misguided, so long as the public officer acted without malice or corruption. See, e.g., Grad v. Kaasa, 312 N.C. 310, 313, 321 S.E.2d 888, 890 (1984). “A defendant acts with malice when he wantonly does that which a man of reasonable intelligence would know to be contrary to his duty and which he intends to be prejudicial or injurious to another.” Id., 321 S.E.2d at 890. “An act is wanton when it is done of wicked purpose, or when done needlessly, manifesting a reckless indifference to the rights of others.” Id., 321 S.E.2d at 890-91; see Miller v. Jones, 224 N.C. 783, 787, 32 S.E.2d 594, 597 (1945) (“The [corrupt or malicious] act or omission ... takes on the guise of a malicious tort.”). Furthermore, public officers in North Carolina are presumed to act in good faith. See, e.g., In re Annexation Ordinance No. 300-X, 304 N.C. 549, 551, 284 S.E.2d 470, 472 (1981); Huntley v. Potter, 255 N.C. 619, 628, 122 S.E.2d 681, 687 (1961). A party may overcome that presumption only with competent and substantial evidence. See Leete v. Cnty. of Warren, 341 N.C. 116, 119, 462 S.E.2d 476, 478 (1995); Huntley, 255 N.C. at 628, 122 S.E.2d at 686-87.
As for Johnson, Perry has presented no competent evidence that Johnson acted maliciously or corruptly concerning the DSS proceedings. Accordingly, public official immunity bars Perry’s negligence claims against Johnson in his individual capacity.
As for Strag, Perry has failed to raise a genuine issue of material fact about whether Strag acted maliciously or corruptly concerning the DSS proceedings. In her complaint, Perry alleges that Strag “drafted the affidavit [to initiate the proceedings], in the manner it was drafted, with malice, after she had a disagreement with” Perry. Compl. ¶ 20. Perry’s own testimony, however, contradicts this allegation. See Perry Dep. 146-57 (admitting that Perry “had not talked to [Strag] at all” before the original petition was filed and that the alleged argument between Perry and Strag occurred “somewhere around a month” after her children were taken into DSS custody). Moreover, Strag reasonably relied on information that she received from L.K., C.K., Dr. Bobbett, Nurse Barnes, EMT Alien-Smith, Detective Jewell, social workers Donaldson and Weatherly, and Perry herself. See Perry Dep. Exs. 2-3 [D.E. 44-2] 107-20. Strag had substantial evidence, from multiple credible sources, of child abuse within Perry’s household. See id. As such, Strag acted reasonably and in accordance with her duty in investigating the claims and petitioning the court for nonsecure custody of Perry’s three children. See Moua, 2012 WL 252648, at *10-11; cf. Perry Dep. 48
C.
In count three, Perry alleges that Strag maliciously instituted and continued the DSS state-court proceeding. See Compl. ¶¶ 85-93.
D.
In count two, Perry alleges that defendants violated her rights under the United States and North Carolina Constitutions by submitting a misleading affidavit to the court in the DSS litigation. See Compl. ¶¶ 77-79. According to Perry, the court then accepted the misleading affidavit “as the factual basis or grounds to remove the children from the care of the Plaintiff, substantially and wrongfully deprived the Plaintiff of a substantial liberty interest and violated her due process rights” under the United States and North Carolina Constitutions. Id. ¶ 80. Perry also alleges that defendants failed to meet the statutory requirements for nonsecure custody under North Carolina law thereby depriving her of her parental liberty interest and violating her due process rights under the United States and North Carolina Constitutions. See id. ¶¶ 81-83.
To the extent Perry seeks to recover damages directly under the Fourteenth Amendment due process clause (either under a substantive or procedural due process theory), a plaintiff may not recover such damages directly under the Fourteenth Amendment from a state official in his or her individual capacity' or from a county. See, e.g., Minneci v. Pollard, — U.S. -, 132 S.Ct. 617, 621-26, 181 L.Ed.2d 606 (2012); Ashcroft v. Iqbal, 556 U.S. 662, 675-76, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). Rather, Perry must use 42 U.S.C. § 1983 to pursue such a
As for Perry’s claim in count two directly under the North Carolina Constitution, Perry first must demonstrate the absence of an adequate state remedy. See, e.g., Copper ex rel. Copper v. Denlinger, 363 N.C. 784, 788, 688 S.E.2d 426, 428 (2010); Craig ex rel. Craig v. New Hanover Cnty., Bd. of Educ., 363 N.C. 334, 335-42, 678 S.E.2d 351, 352-57 (2009); Corum v. Univ. of N.C., 330 N.C. 761, 782, 413 S.E.2d 276, 289 (1992). Perry contends that she does not have an adequate state remedy if her other claims are “barred by sovereign or governmental immunity.” Pl.’s Resp. 17.
Governmental immunity absolutely bars Perry’s negligence claims against Pamlico County. North Carolina law is unclear whether, given Johnson and Strag’s public official immunity, Perry has an adequate state remedy under Corum and its progeny. In Craig, the Supreme Court of North Carolina stated that for a remedy “to be considered adequate in redressing a constitutional wrong, a plaintiff must have at least the opportunity to enter the courthouse doors and present his claim.” Craig, 363 N.C. at 340, 678 S.E.2d at 355. The Craig court also stated that a “common law cause of action ... does not provide an adequate remedy at state law when governmental immunity stands as an absolute bar to such a claim.” Id., 678 S.E.2d at 355. The Craig court concluded that the plaintiff’s negligence claim against defendant New Hanover County Board of Education was not an adequate remedy because “it [was] entirely precluded by the application of the doctrine of sovereign immunity.” Id. at 342, 678 S.E.2d at 356-57. Thus, the plaintiff in Craig could proceed with his claim under the North Carolina Constitution., See id., 678 S.E.2d at 356-57.
In Wilcox v. City of Asheville, 222 N.C.App. 285, 730 S.E.2d 226 (2012), the North Carolina Court of Appeals confronted whether, after Craig, denying the defendant-officers’ claim of public official immunity to common-law tort claims at summary judgment provided the plaintiff an adequate state remedy under Corum and its progeny. Id. at 236. In holding that it did provide an adequate state remedy and thereby precluded plaintiffs claim directly under the North Carolina Constitution, the Wilcox court read Craig as focusing on the “possibility” of another state remedy. Id. at 236-37. The Wilcox court held that plaintiffs “possibility” of success at trial in overcoming the defendant-officers’ assertion of public official immunity and prevailing on plaintiffs negligence claim “warrants a finding of adequacy” because “adequacy is not found in success, but in chance.” Wilcox, 730 S.E.2d at 237; see Johnson v. Causey, 701 S.E.2d 404, 2010 WL 4288511, at *10 (N.C.Ct.App. Nov. 2, 2010) (unpublished) (affirming grant of summary judgment to one defendant on plaintiffs claims under the North Carolina Constitution where the plaintiffs state law tort claims against another defendant in his individual capacity “remained pending”); Glenn-Robinson v. Acker, 140 N.C.App. 606, 631-32, 538 S.E.2d 601, 619 (2000) (affirming grant of summary judgment on plaintiffs claims under the North Carolina Constitution because the court also reversed the grant of summary judgment to defendants on plaintiffs “state law tort claim” against one defendant in his individual capacity and the latter state law tort claim was “an adequate state remedy”); cf. Gaddy v. Yelton, No. 1:10CV214, 2011 WL 3608023, at *8-9 (W.D.N.C. Aug. 16, 2011) (unpublished) (dismissing plaintiffs claims under the North Carolina Constitution because plaintiffs “state law tort claims against the [defendants] in their individual capacities” survived a motion to dismiss for failure to state a claim and provided
This case presents a different situation from Craig or Wilcox. Unlike the Craig defendant, Strag and Johnson cannot assert absolute governmental immunity in their individual capacities against all of Perry’s state law tort claims. For example, in Perry’s negligence claims, Strag and Johnson can assert only public official immunity, which Perry theoretically could overcome by proving malice. Unlike in Wilcox, however, where the court allowed plaintiffs common-law tort claims against the defendant-officers to go to trial because of a genuine issue of material fact concerning whether public official immunity applied, this court has granted summary judgment to defendants Strag and Johnson on the question of public official immunity, thereby precluding Perry from going to trial on her common-law tort claims against Strag and Johnson. Likewise, this court’s ruling at summary judgment on governmental immunity bars Perry from going to trial on her negligence claim against Pamlico County. Thus, the question becomes: what constitutes having an opportunity to “enter .the courthouse doors and present” a claim under Craig? Specifically, is a common-law claim that fails to survive a motion for summary judgment due to public official immunity nonetheless “adequate” under Corum and its progeny, or does such an adverse summary judgment decision close the courthouse doors, thereby permitting a plaintiff to pursue her claim directly under the North Carolina Constitution? Unfortunately, Craig and Wilcox do not answer this question.
Ordinarily, this court would need to predict how the Supreme Court of North Carolina would resolve this issue. Cf. Twin City Fire Ins. Co. v. Ben Arnold-Sunbelt Beverage Co. of S.C., 433 F.3d 365, 369 (4th Cir.2005) (sitting in diversity, a federal court must predict what the state highest court would do if faced with the legal issue); Teague v. Bakker, 35 F.3d 978, 991 (4th Cir.1994) (same). Here, however, the court need not construe Craig, Wilcox, or other cases and make such a
E.
In count four, Perry asserts claims against defendants under 42 U.S.C. § 1983 and the Fourteenth Amendment. See Compl. ¶¶ 94-102. Essentially, Perry alleges that defendants violated her parental rights, which are protected by the due process clause of the Fourteenth Amendment, and violated her right to due process of law. See id.
“To [establish] a claim under [section] 1983, a plaintiff must [prove] the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988); see Filarsky v. Delia, — U.S. -, 132 S.Ct. 1657, 1661-62, 182 L.Ed.2d 662 (2012); Philips v. Pitt Cnty. Mem’l Hosp., 572 F.3d 176, 180 (4th Cir.2009). Additionally, a section 1983 plaintiff must prove the personal involvement of a defendant in causing the plaintiffs injuries. See Iqbal, 556 U.S. at 677, 129 S.Ct. 1937; Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691-92, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978); Wright v. Collins, 766 F.2d 841, 850 (4th Cir.1985).
As for Johnson, Perry has failed to create a genuine issue of material fact concerning Johnson’s personal involvement in the alleged due process violation. Perry also has failed to raise a genuine issue about whether Johnson failed to supervise Strag or anyone else. See, e.g., Iqbal, 556 U.S. at 677, 129 S.Ct. 1937; Wilkins v. Montgomery, 751 F.3d 214, 226-28 (4th Cir.2014). Perry has done nothing more than claim that “it is a reasonable conclusion of the facts that the acts were done at [Johnson’s] direction and under his supervision” because Johnson, as the director of DSS, was ultimately responsible for the supervision of all DSS agents. See Pl.’s Resp. 26-27. Perry’s allegations do not create a genuine issue of material fact. Moreover, the court rejects Perry’s circular attempt to cite the lack of evidence of supervision as evidence of a failure to supervise. See id. 27 (claiming that the proof “is found in the number of times [Johnson] answered that he did not know want [sic] had happened or that he did not have participation [sic] in events which normally a supervisor would have knowledge of or have played a more active role in”). Thus, the court grants summary judgment to Johnson on Perry’s section 1983 claim against him.
2.
As for Strag, at all relevant times she worked as a social worker for the Pamlico County DSS. As such, Strag is entitled to absolute prosecutorial immunity for filing the petitions. See, e.g., Vosburg, 884 F.2d at 137; Moua, 2012 WL 252648, at *8-10; Preston, 2006 WL 3434928, at *5-6; see also Fleming v. Asbill, 42 F.3d 886, 889 (4th Cir.1994); Dalenko v. Wake Cnty. Dep’t of Human Servs., 157 N.C.App. 49, 57-58, 578 S.E.2d 599, 604-05 (2003).
Strag also is entitled to qualified immunity. Qualified immunity provides that “government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982); see Reichle v. Howards, — U.S.-, 132 S.Ct. 2088, 2093, 182 L.Ed.2d 985 (2012); Brandon v. Holt, 469 U.S. 464, 472-73, 105 S.Ct. 873, 83 L.Ed.2d 878 (1985). Qualified immunity protects “all but the plainly incompetent or those who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986); Messerschmidt v. Millender, — U.S. -, 132 S.Ct. 1235, 1244, 182 L.Ed.2d 47 (2012); Ashcroft v. al-Kidd, 563 U.S. 731, 131 S.Ct. 2074, 2085, 179 L.Ed.2d 1149 (2011); Pearson v. Callahan, 555 U.S. 223, 231-32, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). Qualified immunity protects government officials from “bad guesses in gray areas” and ensures that they are liable only “for transgressing bright lines.” Waterman v. Batton, 393 F.3d 471, 476 (4th Cir.2005) (quotation omitted); Maciariello v. Sumner, 973 F.2d 295, 298 (4th Cir.1992). Qualified immunity can apply to social workers involved in child abuse and custody eases. See, e.g., Martin v. Saint Mary’s Dep’t of Soc. Servs., 346 F.3d 502, 505-06 (4th Cir.2003); Hodge v. Jones, 31 F.3d 157, 162 (4th Cir.1994). .
“Whether an official protected by qualified immunity may be held personally liable for an alleged unlawful official action generally turns on the objective legal reasonableness of the action, assessed in light of the legal rules that were clearly established at the time it was taken.” Messerschmidt, 132 S.Ct. at 1245 (quotations and alterations omitted). An official should prevail in asserting “qualified immunity if
When evaluating qualified immunity, a court must “identify the specific right that the plaintiff asserts was infringed by the challenged conduct.” Wilson v. Layne, 141 F.3d 111, 114 (4th Cir.1998) (en banc), aff'd, 526 U.S. 603, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999); see Adams v. Trs. of the Univ. of N.C.-Wilmington, 640 F.3d 550, 565 n. 9 (4th Cir.2011). Then, a court must ask two questions to determine whether qualified immunity applies. See Reichle, 132 S.Ct. at 2093; Pearson, 555 U.S. at 232, 129 S.Ct. 808; Brockington v. Boykins, 637 F.3d 503, 506 (4th Cir.2011); Doe ex rel. Johnson v. S.C. Dep’t of Soc. Servs., 597 F.3d 163, 169 (4th Cir.2010); Bostic v. Rodriguez, 667 F.Supp.2d 591, 605-06 (E.D.N.C.2009). First, “whether the facts that a plaintiff has alleged ... make out a violation of a constitutional right.” Pearson, 555 U.S. at 232, 129 S.Ct. 808. Second, “whether the right at issue was clearly established at the time of defendant’s alleged misconduct.” Id. A court may answer either of these questions first. Id. at 236, 129 S.Ct. 808; see Reichle, 132 S.Ct. at 2093; al-Kidd, 131 S.Ct. at 2080. A defendant is entitled to qualified immunity if the answer to either question is “no.” Reichle, 132 S.Ct. at 2093; Pearson, 555 U.S. at 236, 129 S.Ct. 808.
“To be clearly established, a right must be sufficiently clear that every reasonable official would have understood that what he is doing violates that right.” Reichle, 132 S.Ct. at 2093 (quotations and alteration omitted); see al-Kidd, 131 S.Ct. at 2083; Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987); Cloaninger ex rel. Estate of Cloaninger v. McDevitt, 555 F.3d 324, 331 (4th Cir.2009). A plaintiff may allege that a right was clearly established without citing “a case directly on point, but existing precedent must have placed the statutory or constitutional question beyond debate.” al-Kidd, 131 S.Ct. at 2083; see Carroll v. Carman, — U.S.-, 135 S.Ct. 348, 350, 190 L.Ed.2d 311 (2014) (per curiam); Reichle, 132 S.Ct. at 2093; see also Wilson, 141 F.3d at 114. The “clearly established standard protects the balance between vindication of constitutional rights and government officials’ effective performance of their duties by ensuring that officials can reasonably anticipate when their conduct may give rise to liability for damages.” Reichle, 132 S.Ct. at 2093 (quotations omitted). “The law is clearly established such that an official’s conduct transgresses a bright line when the law has been authoritatively decided by the Supreme Court, the appropriate United States Court of Appeals, or the highest court of the Statq,” Wilson, 141 F.3d at 114; cf. Reichle, 132 S.Ct. at 2094 (assuming without deciding that controlling federal court of appeals authority could be a dispositive source of clearly established law within a given circuit); Hope v. Pelzer, 536 U.S. 730, 741-42, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002) (concluding that binding circuit precedent, a state agency regulation, and a Justice Department report combined to create clearly established law).
Here, Perry has failed to raise a genuine issue of material fact concerning whether Strag violated her due process rights. Although the Fourteenth Amendment protects the “fundamental right of parents to make decisions concerning the care, custody, and control of their children,” the right is not absolute. Troxel v. Granville, 530 U.S. 57, 66, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000). Parental rights must be balanced against the state’s long-
Although the trial court eventually dismissed the petitions, substantial evidence of child abuse supported Strag’s decision to seek the prehearing removal of Perry’s children. See, e.g., Chambliss, 112 F.3d at 735-36; Proctor v. Green, No. 3:07CV00045, 2008 WL 2074069, at *1-6 (W.D.Va. May 14, 2008) (unpublished). Strag reasonably relied on information she received from Perry’s children, Dr. Bob-bett, Nurse Barnes, EMT Alien-Smith, Detective Jewell, social Workers Donaldson and Weatherly, and Perry herself — all of which provided a reasonable basis to suspect child abuse. See. e.g., Smith Aff. 7 (noting that C.K. stated that “Daddy broke [her] arm” and that Vuinovich stated that LaBoy “has hurt [C.K.] before”); Perry Dep. Ex. 3 [D.E. 44-2] 114. (Nurse Barnes told social workers that LaBoy “popped” the skin on A.L.’s bottom in the hospital waiting room and that the incident was so disturbing that it caused Nurse Barnes to cry); Perry Dep. Ex. 2 [D.E. 44-2] 110 (Dr. Bobbett’s notes reporting a history of orthopedic injuries for four-year-old C.K., a suspicion of child abuse, and a concern regarding the mother’s capacity to care for her children safely); Perry Dep. Ex. 3 [D.E. 44-2] 112 (“social worker’s notes reporting that Perry feared Frank and was worried about A.L. being “abused” by him”); Perry Dep. Ex. 3 [D.E. 44-2] 114 (L.K. told social workers that Perry’s past boyfriend had “twisted her arm and it hurt really bad”); see also Chambliss, 112 F.3d at 736 (noting that DSS defendants were “entitled to rely on the professional judgments of the ... physicians”). In addition, Strag was aware of other complaints of neglect against Perry and knew that, while in Perry’s care, C.K. had been “dropped” so forcefully that it caused her to become “unconscious.” See Strag Dep. 66, 68, 72-73.
Strag’s actions do not shock the conscience. Indeed, on this record, Strag would have been derelict in her duty if she decided not to investigate the matter further. Strag prudently performed her duty as a DSS social worker upon ample suspicion of child abuse. As such, her actions did not violate Perry’s substantive due process rights. See Chambliss, 112 F.3d at 735-37 (“If section 1983 liability attaches too readily to removal and placement decisions, the course of public agencies would invariably become one of inaction, thus leaving children in abusive environments!”); Weller, 901 F.2d at 391-92.
Perry also has failed to raise a genuine issue of material fact concerning whether Strag violated Perry’s procedural due process rights. See, e.g., Chambliss, 112 F.3d at 736; Weller, 901 F.2d at 392. Moreover, to the extent that Perry complains .about alleged state-law violations in the state-court proceedings, section 1983 provides no relief. See Hodge, 31 F.3d at 168 (“The fact that Defendants’ acts may have violated various [state] statutory provisions ... is of no consequence in a [section] 1983 action, since a State’s violation of its own laws or procedural rules, creating rights beyond those guaranteed by the Constitution, cannot support a federal due process claim.”).
Strag did not violate Perry’s Fourteenth Amendment due process rights. Thus, the
3.
As for Perry’s section 1983 claim against Pamlico County, Perry must show a genuine issue of material fact concerning whether (1) a constitutional injury occurred as a result of its employee’s conduct; (2) the county had a policy or custom that amounted to a deliberate indifference to the deprivation of Perry’s due process rights; and (3) this policy or custom caused the alleged constitutional injury. See, e.g., City of Canton v. Harris, 489 U.S. 378, 388-92, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989); Smith v. Atkins, 111 F.Supp.2d 955, 966-67 (E.D.N.C.2011).
Perry has failed to make the requisite showing. First, Perry has failed to prove an underlying constitutional violation. Thus, Perry’s section 1983 claim concerning Pamlico County’s customs, policies, practices, procedure, and training fails. See, e.g., City of Los Angeles v. Heller, 475 U.S. 796, 799, 106 S.Ct. 1571, 89 L.Ed.2d 806 (1986) (per curiam); Waybright v. Frederick Cnty., 528 F.3d 199, 209 (4th Cir.2008); Gish v. Thomas, 516 F.3d 952, 955 (11th Cir.2008); Wilson v. Flynn, 429 F.3d 465, 469 n. * (4th Cir.2005); Belcher v. Oliver, 898 F.2d 32, 36 (4th Cir.1990).
Alternatively, Perry has not identified a policy or custom of Pamlico County that amounted to deliberate indifference to the deprivation of Perry’s due process rights. Not every municipal official’s action or inaction represents municipal policy. Liability only attaches “where the decisionmaker possesses final authority to establish municipal policy with respect to the action ordered.” Pembaur v. City of Cincinnati, 475 U.S. 469, 481, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986); see Riddick v. Sch. Bd., 238 F.3d 518, 523 (4th Cir.2000). Furthermore, even if a section 1983 plaintiff can identify the requisite final authority, a municipality is not liable simply because a section 1983 plaintiff “is able to identify conduct attributable to the municipality.” Riddick, 238 F.3d at 524. Instead, a section 1983 “plaintiff must also demonstrate that, through its deliberate conduct, the municipality was the ‘moving force’ behind the injury alleged.” Bd. of Cnty. Comm’rs v. Brown, 520 U.S. 397, 404, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997); Harris, 489 U.S. at 389, 109 S.Ct. 1197; Riddick, 238 F.3d at 524. Hence, a section 1983 plaintiff must show that “a municipal decision reflects deliberate indifference to the risk that a violation of a particular constitutional or statutory right will follow the decision.” Brown, 520 U.S. at 411, 117 S.Ct. 1382; Harris, 489 U.S. at 392, 109 S.Ct. 1197; Riddick, 238 F.3d at 524; Carter v. Morris, 164 F.3d 215, 218 (4th Cir.1999).
“Deliberate indifference is a very high standard — a showing of mere negligence will not meet it.” Grayson v. Peed, 195 F.3d 692, 695 (4th Cir.1999). Deliberate indifference requires “proof that a municipal actor disregarded a known or obvious consequence of his action [or inaction].” Brown, 520 U.S. at 410, 117 S.Ct. 1382. Moreover, even if a section 1983 plaintiff can show the requisite culpability, she also must show “a direct causal link between the municipal action [or inaction] and the deprivation of federal rights.” Id. at 404, 117 S.Ct. 1382. Deliberate indifference and causation are separate requirements. Id.
Perry has failed to raise a genuine issue of material fact in count four as to either a policy or custom ,of deliberate indifference. See, e.g., Randall v. Prince George’s Cnty., 302 F.3d 188, 210 (4th Cir.2002); Lopez v. Robinson, 914 F.2d 486, 492-93 (4th Cir.1990). In opposition to this conclusion, Perry argues only that “it would be illegal for counsel for Perry to make such a showing by presenting evidence he obtained
Alternatively, Perry has failed to show a “direct causal link” between any policy or custom or “a specific deficiency in training and the particular violation alleged.” Buffington v. Baltimore Cnty., 913 F.2d 113, 122 (4th Cir.1990). It , does not “suffice to prove that an injury ... could have been avoided if an [official] had had better or more training, sufficient to equip him to avoid the particular injury-causing conduct” because “[s]uch a claim could be made about almost any encounter.” Harris, 489 U.S. at 391, 109 S.Ct. 1197. Instead, a plaintiff must demonstrate specific training deficiencies and either (1) that inadequately trained employees engaged in a pattern of unconstitutional conduct, or (2)' that a violation of a federal right is a “highly predictable consequence of a failure to equip [government] officers with specific tools to handle recurring situations.” Brown, 520 U.S. at 407-09, 117 S.Ct. 1382; see Connick v. Thompson, 563 U.S. 51, 131 S.Ct. 1350, 1359-60, 179 L.Ed.2d 417 (2011); Harris, 489 U.S. at 388-91, 109 S.Ct. 1197; Doe v. Broderick, 225 F.3d 440, 456 (4th Cir.2000); Carter v. Morris, 164 F.3d 215, 220-21 (4th Cir.1999); Cornfield v. Consol. High Sch. Dist. No. 230, 991 F.2d 1316, 1327 (7th Cir.1993); Hill v. Robeson Cnty., 733 F.Supp.2d 676, 686-88 (E.D.N.C.2010).
The need for different training must be “so obvious, and the inadequacy so likely to result in the violation of constitutional rights that the policymakers ... can reasonably be said to have been deliberately indifferent to the need.” Harris, 489 U.S. at 390, 109 S.Ct. 1197. Thus, to establish a section 1983 claim against Pamlico County for failure to train Strag or Johnson, Perry must show that the “officers are not adequately trained ‘in relation to the tasks that the particular officers must perform’ and this deficiency is ‘closely related to the ultimate injury.’ ” Lytle v. Doyle, 326 F.3d 463, 473 (4th Cir.2003) (quoting Harris, 489 U.S. at 390-91, 109 S.Ct. 1197). Moreover, “[a] pattern of similar constitutional violations by untrained employees is ordinarily necessary to demonstrate deliberate indifference.... Without notice that a course of training is deficient in a particular respect, decision-makers can hardly be said to have deliberately chosen a training program that will cause violations of constitutional rights.” Connick, 131 S.Ct. at 1360 (quotation omitted); see Doe, 225 F.3d at 456; Smith, 777 F.Supp.2d at 967. Only in the rarest of circumstances may “the unconstitutional consequences of failing to train ... be so patently obvious that a [county] could be liable under [section] 1983 without proof of a pre-existing pattern of violations.” Connick, 131 S.Ct. at 1361; see, e.g., City of Okla. City v. Tuttle, 471 U.S. 808, 823-24, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985) (plurality opinion).
Perry has not identified any specific training deficiencies or a pattern of unconstitutional conduct. See, e.g., Tuttle, 471 U.S. at 824, 105 S.Ct. 2427 (“But where the policy relied upon is not itself unconstitutional, considerably more proof than the single incident will be necessary in every case to establish both the requisite fault on the part of the municipality and the causal connection between the ‘policy’ and the constitutional deprivation.” (footnote omitted)); Broderick, 225 F.3d at 456; Semple v. City of Moundsville, 195 F.3d 708, 713-14 (4th Cir.1999); Spell v. McDaniel, 824 F.2d 1380, 1391 (4th Cir.1987). Rather, this case involves hotly contested state-court litigation around the health and well-being of Perry’s three children.’ No .rational jury could find that a violation of
F.
In count five, Perry alleges respondeat superior. See Compl. ¶¶ 103-08. Perry, however, has failed to establish any underlying wrongful conduct or tort. Thus, Perry’s final claim fails. See Daniels v. Durham Cnty. Hosp. Corp., 171 N.C.App. 535, 540, 615 S.E.2d 60, 63 (2005); Paris v. Kreitz, 75 N.C.App. 365, 385-86, 331 S.E.2d 234, 248 (1985).
III.
In sum, the court GRANTS defendants’ motions for summary judgment [D.E. 40, 70]. The clerk shall close the case.
. The agency is now called the Pamlico County Department of Human Services. See Johnson Dep. [D.E. 45-1] 5.
. LaBoy is A.L.’s biological father, but he is not the biological father of L.K. or C.K. Perry Dep. 12; see Compl. ¶¶ 42, 50. L.K.’s biological father is Bobby Standi. Compl. ¶ 50. C.K.’s biological father is Kyle Chute. Id. ¶ 42.
. According to DSS's notes, Vuinovich had "a history of Simple Assault & multiple convictions of Felony Larceny & Misdemeanor Simple Worthless Check. All of these crimes occurred within the last 10 years. In regards to the CPS history, Ms. Vuinovich [sic] was put on the state Perpetrators list in 2000 for injurious environment." Perry Dep. Ex. 3 [D.E. 44-2] 116.
. Although the court did not hold the adjudication hearing on November 18, 2009, it did hold a hearing on the continued need for nonsecure custody. See Nov. Hr’g Tr. [D.E. 46-3]; [D.E. 50-1] 59-70 (Nov. 18, 2009 orders). At that hearing, Perry's counsel reiterated his objection regarding the underlying merits of the petition. See Nov. Hr’g Tr. 48-51. The court found that it was “appropriate to continue non-secure custody.” Id. 55.
. Perry has since lost custody of L.K. See Perry Dep. 102-03. By court order, L.K. now resides with Bobby Stancil. C.K. and A.L. remain with Periy. Id.
. The court cites Ritchie and Muhammad be
. Perry also summarily claims that
Even if the Statutes of limitations would bar recovery for actions more than three years prior to the filing of the complaint, the statute of limitations can not bar redress of the Defendants [sic] actions such [as] the day prior to the hearing allowing Chute to return to North Carolina without C.K. or their willful and unlawful refusal to return the Plaintiff’s children after the Court rendered it’s [sic] ruling and state law required it.
Pl.'s Resp. 15. Again, Perry's injury concerning these allegations was merely a continuation of her initial injury and does not constitute a separate and new violation that restarts the limitations clock.
. Perry argues that, because defendants participated in a risk pool, they waived governmental immunity. See PL’s Resp. 27-28. The pool contract, however, states that “[t]he parties to this Contract intend for no coverage to exist under this Contract as to any claim for which the Covered Person is protected by sovereign immunity and/or governmental immunity under North Carolina law.” Buck Aff. Ex. A 72. The pool contract then states that “[i]t is the express intention of the parties to this Contract that none of the coverage set out herein be construed as waiving in any respect the entitlement of the Covered Person to sovereign immunity and/or governmental immunity.” Id. Perry cannot overcome this express exclusion.
. The court discusses count three before count two because count two implicates, in part, the applicability of governmental and public official immunity in counts one and three.
. The Wilcox court noted that its holding did not address "the adequacy of an individual-capacity state common law claim preliminarily dismissed ... on grounds of public official immunity." 730 S.E.2d at 237 n. 7. Some language in Wilcox arguably supports the position that an adverse preliminary decision does not negatively affect a claim's adequacy. Compare Wilcox, 730 S.E.2d at 237 (stating that "Adequacy does not depend on whether ‘plaintiff will win other pretrial motions, defeat affirmative defenses, or ultimately succeed on the merits of his case.’ ” (quoting Craig, 363 N.C. at 340, 678 S.E.2d at 355) (emphasis omitted)), with Craig, 363 N.C. at 340, 678 S.E.2d at 355 (stating, with respect to its holding that a plaintiff may proceed with a constitutional claim when his common-law claim is barred by absolute immunity, that "[t]his holding does not predetermine the likelihood that plaintiff will win other pretrial motions, defeat affirmative defenses, or ultimately succeed on the merits of his case.”).
. Defendants also argue that the Rooker-Feldman doctrine bars Perry’s claims in count two. See Defs.’ Mem. Supp. Mot. Summ. J. 17; Defs.’ Reply [D.E. 66] 8. Perry responds that Rooker-Feldman does not apply because Perry was not a state-court loser and "it was the Defendants who removed this matter to the federal court.” Pl.’s Resp. 12, 14.
Although in count two Perry appears to seek "redress for an injury caused by the state-court[’s] [interim] decision[s,]” the court need not decide whether Rooker-Feldman applies because the court already determined that Perry’s claims are time barred and fail on the merits. See Davani v. Va. Dep’t of Transp., 434 F.3d 712, 718 (4th Cir.2006); cf. Stratton v. Mecklenburg Cnty. Dep’t of Soc. Servs., 521 Fed.Appx. 278, 288-90 (4th Cir.2013) (per curiam) (unpublished) (applying the Rooker-Feldman doctrine to bar review of state juvenile proceedings); Berry v. S.C. Dep’t of Soc. Servs., 121 F.3d 697, 1997 WL 499950, at *2-3 (4th Cir.1997) (unpublished table decision); Donald v. Polk Cnty., 836 F.2d 376, 381-83 (7th Cir.1988) (applying collateral estoppel against plaintiffs who claimed, in a state-court child abuse case, that "the defendants were not truthful in their reports, investigations, court petitions, and court testimony”); cf. Compl. ¶¶ 72-84; [D.E. 51-1] 27 (when asked to describe the factual bases for her claim in count two, Perry responded “[l]ater violations were due [to] the Defendants’ actions which were committed in concert with the court in not conducting hearings that satisfied the requirements of ... relevant statutes” (emphasis added)); Perry Dep. 122-27.