                           NO. COA13-1131

                   NORTH CAROLINA COURT OF APPEALS

                        Filed: 5 August 2014


KIRK ALAN TURNER,
          Plaintiff,

    v.                               Forsyth County
                                     No. 12 CVS 2352
SPECIAL AGENT GERALD R. THOMAS, in
his individual capacity and,
in the alternative, in his
official capacity; SPECIAL AGENT
DUANE DEAVER, in his individual
capacity and, in the alternative,
in his official capacity; ROBIN
PENDERGRAFT, in her individual
capacity and, in the alternative,
in her official capacity; and
JOHN and JANE DOE SBI Supervisors,
in their individual capacities
and, in the alternative in their
official capacities,
          Defendants.


    Appeal by plaintiff from order entered 11 April 2013 by

Judge Stuart Albright in Forsyth County Superior Court.        Heard

in the Court of Appeals 5 March 2014.


    Morrow, Porter, Vermitsky & Fowler,        PLLC,   by   John   C.
    Vermitsky, for plaintiff-appellant.

    Attorney General Roy Cooper, by Special Deputy Attorney
    General Angel E. Gray, Special Deputy Attorney General
    Grady Balentine, Jr., and Assistant Attorney General
    Matthew Boyatt, for defendants-appellees.


    GEER, Judge.
                                        -2-


      Plaintiff Kirk Allan Turner appeals from an order granting

the motions of defendants Gerald R. Thomas, Duane Deaver, Robin

Pendergraft and John and Jane Doe to dismiss for lack of subject

matter jurisdiction and for failure to state a claim upon which

relief may be granted pursuant to Rules 12(b)(1) and 12(b)(6) of

the Rules of Civil Procedure.            We agree with plaintiff that the

trial court erred in dismissing his state law claims against

defendants      Thomas   and   Deaver     for   malicious      prosecution    and

intentional infliction of emotional distress                   ("IIED")   because

the allegations of the complaint,               when treated as true, are

sufficient to state a claim for relief, and the complaint does

not   contain    allegations     establishing      that    those     claims   are

barred   by   the   statute    of   limitations.          As    to   plaintiff's

remaining claims, we affirm.

                                     Facts

      Plaintiff was tried for the murder of his wife, Jennifer

Wittwer Turner, and found not guilty by reason of self defense.

Following     his   acquittal,      plaintiff     commenced       this    lawsuit

against various officers of the North Carolina State Bureau of

Investigation ("SBI") who were involved in the investigation of

his wife's death.        Plaintiff's complaint alleges the following

facts.
                                           -3-
    On 12 September 2007, plaintiff and his friend Gregory Adam

Smithson     went   to    the   Turner's      marital      residence,         where   Mrs.

Turner was living, to retrieve some of Mr. Smithson's personal

property being stored there.               While Mr. Smithson was loading his

belongings,     plaintiff       and    Mrs.       Turner        began   talking       about

personal matters.           During the conversation, Mrs. Turner picked

up a spear and began attacking plaintiff, stabbing him multiple

times   in   his    thigh    and    groin     area.        In    response,     defendant

grabbed a pocketknife from his right front pocket and cut Mrs.

Turner twice in the neck, causing her death.

    Mr. Smithson called 911 and performed CPR on Mrs. Turner

until emergency personnel arrived.                  The Davie County Sheriff's

Office responded to the 911 emergency call and Special Agent

E.R. Wall responded on behalf of SBI.                    Agent Wall notified the

SBI Assistant Special Agent in Charge, K.A. Cline, that a blood

splatter expert would be needed to analyze the scene.                           However,

after   further     examination       of    Mrs.    Turner's       body,      Agent   Wall

concluded that the blood splatter patterns at the scene were

likely the result of arterial spurting from the large wound in

Mrs. Turner's neck.

    Later      that      evening,     Agent      Cline   arranged       for    defendant

Thomas, a special agent at the SBI, to conduct a blood splatter

interpretation of the scene and of several articles of clothing
                                     -4-
that had been collected during the course of the investigation.

On   14   September       2007,    defendant     Thomas     documented      the

bloodstains and bloodstain patterns at the crime scene and then

went to the Davie County Sheriff's Office to examine clothing

and other evidence collected from the scene.              Prior to defendant

Thomas' examining any evidence, SBI Special Agent D.J. Smith

informed him that Mrs. Turner had apparently stabbed plaintiff

with a spear and, in response, plaintiff reached into his right

front pocket of his pants to retrieve a knife that he used to

cut her throat.

     Fifteen    days   later,      defendant    Thomas     wrote   a     report

documenting the bloodstain patterns at the scene and his notes

regarding the clothing seized.             The report stated that the t-

shirt worn by plaintiff on the night of Mrs. Turner's death had

a large bloodstain on it consistent with a transfer bloodstain

pattern resulting from a bloody hand being wiped on the surface

of the shirt.

     On   13   December    2007,   plaintiff    was   indicted     for   first

degree murder of Mrs. Turner.          Plaintiff was detained for one

month before being granted a $1,000,000.00 bond.              When plaintiff

posted bail, he was released on house arrest.

     On 15 January 2008, defendant Thomas met with defendant

Deaver, an SBI special agent;          an attorney with the District
                                        -5-
Attorney's office; Captain Jerry Hartman, the lead investigator

for   the   Davie    County   Sherriff's      Office;    and    "Mr.    Marks"    to

discuss the feasibility of plaintiff's version of events leading

to Mrs. Turner's death.          At that meeting, the men theorized that

plaintiff killed Mrs. Turner as part of an elaborate scheme in

which plaintiff stabbed himself with the spear and staged the

scene to make it look like self defense.                To prove this theory,

defendants    needed    to    show    that    the   transfer    blood    stain    on

plaintiff's shirt was not a mirror image stain from plaintiff's

hand, but rather a transfer pattern consistent with plaintiff

wiping his knife off on his shirt.

      Defendants Thomas and Deaver, with the approval of their

supervisor      (defendant       Pendergraft),        then      "wantonly        and

maliciously conducted unscientific tests to 'shore up' the new

theory."     In conducting the new tests, defendant Thomas retook

samples of evidence but failed to properly label his work, and

he failed to make a record of his new theory.                  Defendants Thomas

and    Deaver       videotaped       themselves     conducting      unscientific

experiments to try to obtain a blood smear from a knife similar

to the smear on plaintiff's shirt.                  After several attempts,

defendants obtained a smear with a knife that looked similar to

the smear on plaintiff's shirt.               At that point in the video,

defendant Deaver can be heard saying, "'Oh, even better! Holy
                                              -6-
cow,       that   was   a    good    one!'        and   'Beautiful!     That's    a   wrap,

baby!'"

       After conducting the new tests and reviewing the evidence a

second       time,      defendant          Thomas       created   a     second        report

purportedly         discussing         the        "examination     of    clothing       for

bloodstain patterns on Friday, September 14, 2007," even though

the actual date of the examination was 15 January 2008.                                 The

second report altered the first report by replacing "'consistent

with a bloody hand wiped on the shirt' with 'consistent with a

pointed object being wiped on the shirt.'"

       Stuart James of Fort Lauderdale, Florida, disagreed with

Thomas and Deaver's blood stain analysis and believed that the

blood stain was most likely a "'mirror stain'" created when the

shirt was folded after the shirt was cut off or when it was

tossed on the floor.1               Thomas, however, wrote in his report that

Captain Hartman "'was present when emergency services cut the

gray T-shirt from Mr. Turner's body and that the question [sic]

blood stain was observed present in its current condition on the

shirt.        Hartman       said    that     he    took   the   shirt   from     Emergency




       1
      It is unclear from the complaint when and in what form
Stuart James offered this opinion, whether he testified at
plaintiff's criminal trial, what his credentials were, or how he
came to be involved in the case.
                                        -7-
Medical Services and placed it in a secure area [an adjacent

room], laying flat on the floor to dry.'"2

     Plaintiff's trial began on 27 July 2009.                  Defendant Thomas

testified at trial consistent with what he had written in his

report.        Captain Hartman testified, however, that he did not

arrive    at    the   crime   scene   until     two   hours    after   EMTs   took

plaintiff to the hospital and that he was not present when EMTs

removed the shirt.            Additionally, initial crime scene photos

showed that the t-shirt was crumpled on the floor, inside out.

     The jury returned a verdict of not guilty of murder by

reason of self defense on 21 August 2009.               On 14 November 2011,

plaintiff filed a complaint against defendants Thomas, Deaver,

Pendergraft, and John and Jane Doe in a case docketed as 11 CVS

7812.     Defendant Pendergraft is the Director of the SBI, and

defendants John and Jane Doe are supervisors for the SBI.                     On 4

April 2012, plaintiff voluntarily dismissed his complaint in 11

CVS 7812, and filed the complaint which is the subject of this

appeal.

     Plaintiff's       complaint      alleges    several      causes   of   action

against defendants.       As to defendants Thomas and Deaver in their

     2
      The complaint does not specify when Thomas added this
information to the report, but it could be read to imply that
Thomas wrote this in his second report in response to Stuart
James' opinion in an effort to discredit it, but the complaint
is vague in this regard.
                                           -8-
individual      capacities,       the    complaint     alleges     claims    for   (1)

IIED, (2) Abuse of Process, (3) Malicious Prosecution, and (4)

False Imprisonment.          As for defendants Pendergraft and Jane and

John Doe,       plaintiff brought a claim of negligence for their

failure    to    properly       train,    supervise,     and    direct    defendants

Thomas and Deaver.           Finally, the complaint asserts claims under

42 U.S.C. § 1983 against all defendants in both their individual

and official capacities, and a claim against all defendants in

their official capacities for violation of Article I § 19 of the

North Carolina Constitution.

      Defendants        filed    motions     to     dismiss    pursuant     to   Rules

12(b)(1), 12(b)(6), and 12(b)(7).                   After a hearing on 8 April

2013,    the    trial    court    entered    an     order     granting   defendants'

motions.        In the order, the trial court found that plaintiff

conceded to the dismissal of all claims against John and Jane

Doe and to the dismissal of the 42 U.S.C. § 1983 claim against

all     defendants      in   their       official     capacities.         The    order

concluded that "Plaintiff's complaint should be dismissed as to

all Defendants for lack of subject matter jurisdiction and for

failure to state a claim upon which relief can be granted."                        In

light of this conclusion, the trial court found it "unnecessary

to consider the Defendant's Motion to Dismiss for failure to
                                     -9-
join necessary parties pursuant to 12(b)(7)."             Plaintiff timely

appealed the order to this Court.

                                  Discussion

      On appeal, plaintiff argues that the trial court should not

have dismissed the claims of malicious prosecution, abuse of

process, IIED, and false imprisonment against defendants Thomas

and Deaver, or the 42 U.S.C. § 1983 claims against defendants

Thomas, Deaver, and Pendergraft in their individual capacities.

      Plaintiff does not challenge the dismissal of the remaining

claims including all the claims against defendants John and Jane

Doe, and the negligence claim against Pendergraft.              Accordingly,

we affirm the dismissal of those claims.              See N.C.R. App. P.

28(a).

                            Standard of Review

      "The motion to dismiss under N.C. R. Civ. P. 12(b)(6) tests

the legal sufficiency of the complaint.          In ruling on the motion

the allegations of the complaint must be viewed as admitted, and

on   that   basis   the   court   must   determine   as   a   matter   of   law

whether the allegations state a claim for which relief may be

granted."     Stanback v. Stanback, 297 N.C. 181, 185, 254 S.E.2d

611, 615 (1979) (internal citation omitted), disapproved of on

other grounds by Dickens v. Puryear, 302 N.C. 437, 276 S.E.2d

325 (1981).     Generally, "'a complaint should not be dismissed
                                      -10-
for     insufficiency      unless    it    appears    to     a   certainty   that

plaintiff is entitled to no relief under any state of facts

which could be proved in support of the claim.'"                    Id. (quoting

2A Moore's Federal Practice, § 12.08 (2d ed. 1975)).                         "This

Court     must   conduct    a   de   novo    review    of    the    pleadings   to

determine their legal sufficiency and to determine whether the

trial court's ruling on the motion to dismiss was correct."

Leary v. N.C. Forest Prods., Inc., 157 N.C. App. 396, 400, 580

S.E.2d 1, 4, aff’d per curiam, 357 N.C. 567, 597 S.E.2d 673

(2003).

I.    Plaintiff's State Law Claims

      Plaintiff sued defendants Thomas and Deaver for malicious

prosecution,     abuse     of   process,    IIED,    and    false   imprisonment.

Defendants moved to dismiss these claims on the basis of the

statute of limitations, failure to state a claim, and public

official immunity.3

      With respect to the statute of limitations, the parties

agree that the statute of limitations for each of the state law

claims is three years, N.C. Gen. Stat. § 1-52 (2013), and that

      3
      In his complaint, plaintiff sought to impose liability on
defendant Pendergraft for defendants Thomas and Deaver's actions
based on a claim of negligent supervision and training.
Plaintiff does not, however, on appeal challenge the trial
court's dismissal of that negligence claim.      Plaintiff has,
therefore, chosen not to proceed with any state law claim
against defendant Pendergraft.
                                               -11-
plaintiff initiated this action on 14 November 2011.                             Therefore,

any cause of action that accrued prior to 14 November 2008 is

barred by the statute of limitations.

     A.      Malicious Prosecution

     "In     order         to     recover        in     an     action     for    malicious

prosecution,        plaintiff           must    establish       that      defendant:     (1)

instituted, procured or participated in the criminal proceeding

against plaintiff; (2) without probable cause; (3) with malice;

and (4) the prior proceeding terminated in favor of plaintiff."

Williams v. Kuppenheimer Mfg. Co., 105 N.C. App. 198, 200, 412

S.E.2d     897,    899     (1992).         In    this    case,    defendant       does   not

dispute     that     the        prior    proceeding          terminated     in   favor   of

plaintiff in August 2009 when plaintiff was acquitted of first

degree murder.

     Because the prior proceeding terminated within three years

of   the    initiation           of     this    lawsuit,        plaintiff's      malicious

prosecution claim is not barred by the statute of limitations.

Defendants        argue,        however,       that   the      trial    court    correctly

dismissed     this       claim     because      plaintiff's       complaint       does   not

sufficiently allege facts to support the first three elements of

malicious prosecution.

             1.      Institution, Procurement, or Participation in the
                     Criminal Proceeding
                                        -12-
    Defendants        Thomas     and     Deaver          argue      that       plaintiff's

complaint fails to adequately allege the element of initiation,

procurement, or participation in the criminal proceeding because

"there   are   no    allegations       that    any       of   the   named      defendants

personally played any role in presenting the case to the grand

jury or in initiating criminal process against the plaintiff.

In addition, defendants did not engage in the actions of which

plaintiff   specifically        complains      .     .    .   until    several     months

after plaintiff's arrest and release on bond."

    However,        regarding    this     first          element      of   a     malicious

prosecution cause of action, this Court has recognized:

            [W]hen discussing the tort of malicious
            prosecution generally, our cases indicate a
            liberal reading of the requirement that the
            defendant    have   "initiated"    the   earlier
            proceeding.    For example, while some of our
            decisions involving a claim based upon a
            prior   criminal    action    have    stated   a
            plaintiff must prove the defendant initiated
            the prior criminal proceeding, see, e.g.,
            Alt v. Parker, 112 N.C. App. 307, 312, 435
            S.E.2d 773, 776 (1993), disc. review denied,
            335 N.C. 766, 442 S.E.2d 507 (1994), and
            others have said a plaintiff must show
            defendant instituted the prior proceeding,
            see, e.g., Juarez-Martinez v. Deans, 108
            N.C. App. 486, 491, 424 S.E.2d 154, 157,
            disc. review denied, 333 N.C. 539, 429
            S.E.2d 558 (1993), still others have held a
            plaintiff must establish that the defendant
            "instituted, procured or participated in the
            criminal    proceeding    against    plaintiff."
            Williams, 105 N.C. App. at 200, 412 S.E.2d
            at 899 (citation omitted) (emphasis added).
                                              -13-
Moore v. City of Creedmoor, 120 N.C. App. 27, 38, 460 S.E.2d

899, 906 (1995), aff'd in part, rev'd in part on other grounds,

345 N.C. 356, 481 S.E.2d 14 (1997).

         Thus,    Moore     recognized    that       a   showing    that    a   defendant

"'participated         in   the    criminal      proceeding'"       is   sufficient    to

establish the first element of a malicious prosecution claim for

relief.      Id. (emphasis omitted) (quoting Williams, 105 N.C. App.

at 200, 412 S.E.2d at 899).                    Although defendants refer to the

inadequacy        of   plaintiff's       allegations        regarding       "defendants'

participation in the procurement of the indictment" (emphasis

added), Moore's holding allowing for a showing of participation

in   a    criminal        proceeding     generally        necessarily       contemplates

participation          after      the   proceeding        has   been       initiated   or

instituted.            Defendants'        interpretation           improperly      merges

participation into procurement and eliminates one of the three

alternative ways that this Court has stated that this element

may be established.

         Allowing this element to be established by a showing of

participation in the criminal proceeding is consistent with the

Restatement (Second) of Torts, which indicates that "[a] private

person who takes an active part in continuing or procuring the

continuation of criminal proceedings initiated by himself or by

another      is    subject        to    the     same     liability       for    malicious
                                             -14-
prosecution      as     if    he     had     then     initiated      the      proceedings."

Restatement (Second) Torts § 655 (1977) (emphasis added).                               This

rule "applies . . . when the proceedings are initiated by a

third    person,      and     the        defendant,      knowing    that      there   is   no

probable cause for them, thereafter takes an active part in

procuring their continuation."                   Id., cmt. b.

    Although          we     have    not     found       any    North     Carolina      cases

specifically addressing what facts are necessary to show that a

defendant sufficiently participated in a criminal proceeding to

support   a     claim      for      malicious       prosecution,         we   believe   that

Williams is instructive.                 In Williams, this Court explained that

"[t]he    act    of     giving       honest      assistance        and    information      to

prosecuting authorities does not render one liable for malicious

prosecution."         105 N.C. App. at 201, 412 S.E.2d at 900.

    There,       this        Court        held    that    the      plaintiff       presented

sufficient      evidence            of     the    first        element        of   malicious

prosecution when

              the jury could find defendant's actions went
              further than merely providing assistance and
              information.    Defendant brought all the
              documents used in the prosecution to the
              police.      As  discussed   earlier,  these
              documents included the eleven suspicious
              void sales, the three suspicious alteration
              tickets, and the names and addresses of
              witnesses to be contacted.   From the record
              it appears the only additional investigation
              undertaken by the authorities was to contact
              the three individuals who had suspicious
                                          -15-
               alterations performed.      Law enforcement
               officials never interviewed other customers,
               store employees or plaintiff prior to the
               time of his arrest. Except for the efforts
               of defendant, it is unlikely there would
               have   been   a  criminal   prosecution   of
               plaintiff.

Id.       It    follows       from    this     reasoning       that      once     criminal

proceedings have been initiated, the first element of malicious

prosecution       can   be    established        by   a     showing      that   defendant

participated in the criminal proceedings if "[e]xcept for the

efforts    of     defendant,         it   is    unlikely"         that    the     criminal

prosecution would have continued against defendant.                        Id.

      In this case, the complaint alleges that defendants Thomas

and Deaver met with a member of the District Attorney's office

in January 2008 to help formulate a theory in support of the

first    degree    murder      charge.         Defendants      theorized        that   Mrs.

Turner    did    not    attack       plaintiff,       but    rather      that   plaintiff

stabbed himself with the spear and staged the scene to look like

self defense as part of an elaborate scheme.

      The complaint further alleges that defendants then devised

and executed unscientific tests designed specifically to support

the theory, and defendant Thomas altered his initial report to

reflect    their        new    findings        arising      out    of     those    tests.

Significantly, the complaint alleges that "[t]his evidence was

crucial to maintain probable cause for a first-degree murder
                                                 -16-
charge."             Thus,    plaintiff           has     sufficiently          alleged       that

defendants participated in the criminal proceedings by alleging

facts    that        tend    to    show     that      "[e]xcept        for   the    efforts     of

defendant[s], it is unlikely" that the proceedings would have

continued against plaintiff.                    Id.

      Accordingly,                we      hold        that       plaintiff's            complaint

sufficiently alleges the first element of malicious prosecution.

See also Pierce v. Gilchrist, 359 F.3d 1279, 1291 (10th Cir.

2004) (applying common law elements of malicious prosecution to

§   1983       claim    and       holding      allegations       sufficient         to    survive

motion to dismiss when complaint alleged that, after plaintiff's

arrest,        defendant      forensic           analyst      "'contrived          evidence     to

secure     a    fraudulent         conviction'"          by   creating       forensic      report

that was false, without any scientific basis, and in disregard

of exculpatory evidence).

                2.     Probable Cause

      Defendants further argue that dismissal was proper because

plaintiff's          allegation         that     there    was    no     probable        cause   to

initiate        or     pursue          criminal       charges     against       plaintiff       is

impermissibly          conclusory         and     need     not    be    taken      as    true   in

considering the motion to dismiss.                            However, this Court has

recognized that "[w]ith the adoption of 'notice pleading,' mere

vagueness or lack of detail is no longer ground for allowing a
                                          -17-
motion to dismiss."          Gatlin v. Bray, 81 N.C. App. 639, 644, 344

S.E.2d 814, 817 (1986) (quoting Sutton v. Duke, 277 N.C. 94,

102, 176 S.E.2d 161, 165 (1970)).                 Rather, "'[p]leadings comply

with our present concept of notice pleading if the allegations

in the complaint give defendant sufficient notice of the nature

and basis of plaintiffs' claim to file an answer, and the face

of the complaint shows no insurmountable bar to recovery.'"                          Id.

(quoting Rose v. Guilford Cnty., 60 N.C. App. 170, 173, 298

S.E.2d 200, 202 (1982)).

       Under the North Carolina standard for motions to dismiss,

plaintiff's     allegation         that   there       was   no    probable   cause   is

sufficient      unless       the     facts       alleged         in    the   complaint

conclusively establish that there was probable cause or that

there does not exist "'any state of facts which could be proved

in    support   of'"   the    allegation         of    lack      of   probable   cause.

Stanback, 297 N.C. at 185, 254 S.E.2d at 615 (emphasis omitted)

(quoting 2A Moore's Federal Practice, § 12.08).                        "'The test for

determining probable cause is whether a man of ordinary prudence

and intelligence under the circumstances would have known that

the    charge   had    no    reasonable      foundation.'"             Strickland    v.

Hedrick, 194 N.C. App. 1, 17, 669 S.E.2d 61, 71 (2008) (quoting

Becker v. Pierce, 168 N.C. App. 671, 677, 608 S.E.2d 825, 829-30

(2005)).
                                      -18-
    Defendants argue that the complaint's allegations that (1)

plaintiff "grabbed a pocketknife from his right front pocket and

made two cuts in rapid succession to Jennifer Turner's neck area

which resulted in her death[,]" and (2) plaintiff was arrested

pursuant to a grand jury indictment conclusively establish the

existence of probable cause in this case.                We disagree.

    First degree murder is the intentional and unlawful killing

of a human being with premeditation and deliberation.                     N.C. Gen.

Stat. § 14-17 (2013).        The allegation that plaintiff killed Mrs.

Turner with a pocket knife, standing alone, is insufficient to

establish   probable     cause      that   plaintiff       acted    with    malice,

premeditation,     and   deliberation          as   a    matter    of    law.      In

determining probable cause, the totality of the circumstances

must be considered.          Here, the complaint, when viewed in the

light   most     favorable     to    plaintiff,         shows     that    plaintiff

accompanied his friend to Mrs. Turner's residence in order to

help his friend retrieve personal property being stored there.

While plaintiff talked to Mrs. Turner, she picked up a large

spear and attacked plaintiff, stabbing him several times.                          In

response,   plaintiff    retrieved         a   pocketknife        from   his    front

pocket and cut Mrs. Turner twice in the neck.

    These      allegations    are    consistent         with    plaintiff's     claim

that he only acted in self defense and did not stab Mrs. Turner
                                    -19-
with malice, premeditation, and deliberation.              When viewed in

the light most favorable to plaintiff, the facts alleged in the

complaint do not establish as a matter of law that there was

probable cause to arrest plaintiff for first degree murder.

    In    support     of    their     argument   that    the    indictment

conclusively      establishes   probable     cause,     defendants    cite

Stanford v. Grocery Co., 143 N.C. 419, 426, 55 S.E. 815, 817

(1906), which holds that that a true bill of indictment against

a criminal defendant returned by a grand jury is prima facie

evidence of probable cause.         However, "[w]hile our Supreme Court

has said that both a grand jury indictment and a waiver of a

preliminary hearing in a criminal action establish a prima facie

showing   of    probable   cause,   nevertheless,   such    a   finding   or

waiver is not conclusive in a subsequent malicious prosecution

action, and the question of probable cause is still an issue for

the jury."      Williams, 105 N.C. App. at 201, 412 S.E.2d at 900.

The indictment, therefore, only creates an issue of fact for the

jury to determine with respect to the issue of probable cause.

Accordingly, we conclude that plaintiff's complaint sufficiently

alleges a lack of probable cause.

           3.     Malice

    Defendants similarly argue that plaintiff's allegation that

defendants acted maliciously is impermissibly conclusory and not
                                            -20-
supported     by     the    facts     alleged.      However,      in     a    malicious

prosecution claim, "malice may be inferred from want of probable

cause."      Cook v. Lanier, 267 N.C. 166, 170, 147 S.E.2d 910, 914

(1966).      Additionally, "'[e]vidence that the chief aim of the

prosecution was to accomplish some collateral purpose, or to

forward some private interest . . . is admissible both to show

the absence of probable cause and to create an inference of

malice, and such evidence is sufficient to establish a prima

facie want of probable cause.'"                Id. (quoting Dickerson v. Atl.

Ref. Co., 201 N.C. 90, 95, 159 S.E. 446, 449 (1931)).

      Plaintiff       alleged        that    defendants    acted       with     malice,

without      probable       cause,    and    for   the    ulterior       purposes       of

political gain and advancing their careers.                    These allegations

are sufficient under Cook to establish the element of malice.

Although defendants suggest that acting for political gain does

not   constitute        a    "collateral       purpose"    that     may       raise     an

inference of malice and a lack of probable cause, they have

cited no authority to support such a limitation.                         As explained

by our Supreme Court in Dickerson, "[t]he reason for holding

that proof of a collateral purpose is sufficient to make out a

prima facie want of probable cause is based upon the hypothesis

that a person, bent on accomplishing some ulterior motive, will

act   upon    much    less    convincing       evidence   than     one       whose    only
                                         -21-
desire is to promote the public good."              201 N.C. at 95, 159 S.E.

at 450.     We see no reason why this rationale does not apply when

the ulterior motive is to obtain political gain.

    In sum, we conclude that the complaint sufficiently alleges

the essential elements of malicious prosecution.                Therefore, the

trial     court   erred    in       dismissing    the   claim   of    malicious

prosecution as to defendants Thomas and Deaver.

    B.      Abuse of Process

    "'[A]buse of process is the misuse of legal process for an

ulterior    purpose.      It    consists    in    the   malicious    misuse    or

misapplication of that process after issuance to accomplish some

purpose not warranted or commanded by the writ.                      It is the

malicious    perversion        of   a   legally   issued   process   whereby    a

result not lawfully or properly obtainable under it is attended

(sic) to be secured.'"          Stanback, 297 N.C. at 200, 254 S.E.2d at

624 (quoting Fowle v. Fowle, 263 N.C. 724, 728, 140 S.E.2d 398,

401 (1965)).

    More recently, this Court has explained:

            "[A]buse   of   process  requires    both  an
            ulterior motive and an act in the use of the
            legal process not proper in the regular
            prosecution of the proceeding, and that
            [b]oth    requirements    relate    to    the
            defendant's purpose to achieve through the
            use of the process some end foreign to those
            it was designed to effect.       The ulterior
            motive requirement is satisfied when the
            plaintiff alleges that the prior action was
                                  -22-
            initiated by defendant or used by him to
            achieve a collateral purpose not within the
            normal scope of the process used.   The act
            requirement is satisfied when the plaintiff
            alleges that once the prior proceeding was
            initiated, the defendant committed some
            wilful act whereby he sought to use the
            existence   of   the   proceeding to   gain
            advantage of the plaintiff in respect to
            some collateral matter."

Chidnese v. Chidnese, 210 N.C. App. 299, 310-11, 708 S.E.2d 725,

734-35 (2011) (quoting Stanback, 297 N.C. at 201, 254 S.E.2d at

624).    "There is no abuse of process where it is confined to its

regular and legitimate function in relation to the cause of

action stated in the complaint."         Mfrs. & Jobbers Fin. Corp. v.

Lane, 221 N.C. 189, 196-97, 19 S.E.2d 849, 853 (1942).

    Here, plaintiff alleged that defendants Thomas and Deaver

"intentionally and maliciously used their positions as Special

Agents    with   the   SBI,   tasked     with   the   official   duty   of

investigating the death of Jennifer Wittwer Turner, to obstruct

justice and 'frame' Dr. Kirk Turner for the first-degree murder

of his wife Jennifer Turner after Dr. Kirk Turner was indicted.

This was done for the improper purpose of political benefit, and

to ensure a conviction in a high profile case where it would be

unpopular for the district attorney to enter a dismissal of

charges."    The complaint additionally alleged that defendants'

"actions were undertaken for an ulterior motive, that is to

secure a conviction of a high publicity murder case regardless
                                        -23-
of guilt to further the careers of the Defendants and to assist

the   District       Attorney   in    winning      a    very    public      case     for

political purposes with no regard to the defendant's guilt or

innocence."

      These allegations are insufficient to support an abuse of

process claim because the improper purpose alleged -- securing

plaintiff's        conviction   --    is     within    the     intended     scope        of

criminal      proceedings.        It,      therefore,        fails    to    meet     the

requirement that a defendant use the process to achieve a result

"not warranted or commanded by the writ" and "not lawfully or

properly obtainable" by the process.                   Fowle, 263 N.C. at 728,

140 S.E.2d at 401.           Accordingly, we affirm the trial court's

dismissal     of    plaintiff's      abuse    of   process      claim      under    Rule

12(b)(6).      See also Scott v. District of Columbia, 101 F.3d 748,

756 (D.C. Cir. 1996) (holding that when "officers instituted the

criminal     charge    for   precisely       the   purpose     for    which    it    was

intended     [--]    establishing     that     [plaintiff]      was     guilty      of    a

criminal offense" -- "fact that the officers expected to realize

some benefit by covering up their own alleged wrongdoing simply

points to an ulterior motive, not the kind of perversion of the

judicial process that gives rise to a cause of action for abuse

of process").4

      4
          Because of this holding, we need not address whether the
                                       -24-
      C.     Intentional Infliction of Emotional Distress

      The essential elements of a claim for IIED are "(1) extreme

and outrageous conduct, (2) which is intended to cause and does

cause (3) severe emotional distress to another."                 Dickens, 302

N.C. at 452, 276 S.E.2d at 335.             "The tort may also exist where

defendant's       actions   indicate    a   reckless   indifference     to   the

likelihood that they will cause severe emotional distress."                  Id.

             1.     Statute of Limitations

      This Court has stated that a cause of action for IIED "does

not   come   into    existence    until     the   continued   conduct   of   the

defendant     causes    extreme    emotional       distress."      Bryant     v.

Thalhimer Bros., Inc., 113 N.C. App. 1, 12, 437 S.E.2d 519, 525

(1993).      In Bryant, the plaintiff sued her former employer for

IIED based upon allegations of sexual harassment that began more

than three years prior to her initiation of the lawsuit.                Id. at

3, 437 S.E.2d at 521.         The defendant raised the defense of the

three-year statute of limitations and argued that the statute

barred recovery for events occurring more than three years prior

to the filing of the lawsuit.          Id. at 4, 437 S.E.2d at 521.          The

trial court denied the defendant's motion for summary judgment

and motion in limine to bar evidence of events occurring outside

of the     period of the statute of limitations.                Id.     A jury


claim is barred by the statute of limitations.
                                          -25-
returned a verdict in favor of the plaintiff on the IIED claim,

and the defendant appealed.           Id.

       On appeal, this Court rejected the defendant's contention

that    "the    acts   of    [the    defendant]        that   occurred    prior    to

December   1986     are     barred   by    the   three-year     statute"    because

"[i]f all of the elements of the tort [are] not present, then no

cause of action for intentional infliction of emotional distress

exist[s] at that time."              Id. at 13, 437 S.E.2d at 526.                The

Court explained:

               The statutes of limitations serve to bar
               claims, not evidence of contributing factors
               to an ultimate claim that has not yet come
               into existence.      "As our courts have
               frequently noted, in no event can a statute
               of limitations begin to run until the
               plaintiff is entitled to institute action. .
               . .   Ordinarily, the period of the statute
               of limitations begins to run when the
               plaintiff's right to maintain an action for
               the wrong alleged accrues.     The cause of
               action accrues when the wrong is complete. .
               . ."   Obviously, outrageous conduct by the
               defendant alone would confer no cause of
               action on the plaintiff in the case until
               she suffered extreme emotional distress
               caused by his actions.

Id. (quoting Bolick v. Am. Barmag Corp., 54 N.C. App. 589, 594,

284 S.E.2d 188, 191, decision modified on other grounds, 306

N.C. 364, 293 S.E.2d 415 (1981)).                This Court held that because

the    plaintiff's     cause    of    action     did    not   accrue     until   "the

actions of the defendant did in fact cause emotional distress of
                                    -26-
the calibre set out in Waddle [v. Sparks, 331 N.C. 73, 414

S.E.2d 22 (1992),]" the trial court did not err in denying the

defendant's motion in limine.        Id.

    In Waddle, the Supreme Court adopted the same standard for

the element of "severe emotional distress" in an IIED claim as

required    for   a   claim   of   negligent   infliction   of   emotional

distress:

            "the term 'severe emotional distress' means
            any emotional or mental disorder, such as,
            for example, neurosis, psychosis, chronic
            depression, phobia, or any other type of
            severe and disabling emotional or mental
            condition which may be generally recognized
            and diagnosed by professionals trained to do
            so."

331 N.C. at 83, 414 S.E.2d at 27 (quoting Johnson v. Ruark

Obstetrics & Gynecology Assoc., 327 N.C. 283, 304, 395 S.E.2d

85, 97 (1990)).

    Here, plaintiff's complaint alleges that plaintiff "did in

fact suffer severe emotional distress as a direct and proximate

result of the actions of the defendants which first manifested

themselves in diagnosable form following his acquittal for first

degree murder . . . ."        Defendant was acquitted in August 2009,

within the three-year statute of limitations before plaintiff

filed the complaint in November 2011.          Because plaintiff's cause

of action could not accrue until he suffered severe emotional

distress, and the complaint alleges that did not happen until
                                          -27-
after August 2009, this cause of action as to both defendants

Thomas and Deaver is not barred by the statute of limitations.

See also Ruff v. Reeves Bros., Inc., 122 N.C. App. 221, 227, 468

S.E.2d     592,   597     (1996)    (applying       Bryant    and     holding     that

"plaintiff's cause of action did not accrue until the actions of

the defendant did, in fact, cause severe emotional distress").

            2.      Failure to State a Claim for Relief

    Defendants argue that plaintiff's complaint fails to allege

sufficient facts to show that defendants engaged in extreme and

outrageous conduct, the first element of IIED.                      "[T]he initial

determination of whether conduct is extreme and outrageous is a

question of law for the court: 'If the court determines that it

may reasonably be so regarded, then it is for the jury to decide

whether,    under    the    facts    of    a     particular   case,     defendants'

conduct . . . was in fact extreme and outrageous.'"                     Johnson v.

Bollinger, 86 N.C. App. 1, 6, 356 S.E.2d 378, 381-82 (1987)

(quoting Briggs v. Rosenthal, 73 N.C. App. 672, 676, 327 S.E.2d

308, 311 (1985)).

    "'Conduct        is    extreme    and        outrageous    when     it   is    so

outrageous in character, and so extreme in degree, as to go

beyond all possible bounds of decency, and to be regarded as

atrocious, and utterly intolerable in a civilized community.'"

Johnson v. Colonial Life & Accident Ins. Co., 173 N.C. App. 365,
                                    -28-
373, 618 S.E.2d 867, 872 (2005) (quoting Guthrie v. Conroy, 152

N.C. App. 15, 22, 567 S.E.2d 403, 408-09 (2002)).            "[T]his Court

has set a high threshold for a finding that conduct meets the

standard."    Dobson v. Harris, 134 N.C. App. 573, 578, 521 S.E.2d

710, 715 (1999), rev'd on other grounds, 352 N.C. 77, 530 S.E.2d

829 (2000).     "'The liability clearly does not extend to mere

insults, indignities, threats, annoyances, petty oppressions, or

other trivialities.'"       Briggs, 73 N.C. App. at 677, 327 S.E.2d

at 311 (quoting Restatement (Second) of Torts § 46 cmt. d.).

    We believe that the allegations in the complaint in this

case are similar to the facts of West v. King's Dep't Store,

Inc., 321 N.C. 698, 365 S.E.2d 621 (1988).               In West, a store

manager   falsely   accused   the   plaintiffs     of   stealing   from    his

store,    despite   the   plaintiffs   producing    a   receipt    of    their

purchase and verification from the cashier of the sale.                 Id. at

700-01, 365 S.E.2d at 622-23.          In concluding that the evidence

of the store manager's conduct was sufficient to go to the jury

on the claim of IIED, the Supreme Court cited favorably Judge

Phillips' dissent from the majority opinion of this Court that

            "[f]ew things are more outrageous and more
            calculated to inflict emotional distress on
            innocent store customers that have paid
            their good money for merchandise and have in
            hand a document to prove their purchase than
            for the seller or his agent, disdaining to
            even examine their receipt, to repeatedly
            tell them in a loud voice in the presence of
                                         -29-
              others that they stole the merchandise and
              would be arrested if they did not return
              it."

Id. at 705, 365 S.E.2d at 625 (quoting West v. King's, 86 N.C.

App.   485,    358    S.E.2d    386     (1987)    (Phillips,    J.,    dissenting)

(unpublished)).

       Similarly, here, when viewed in the light most favorable to

plaintiff, the complaint alleges facts showing that plaintiff's

prosecution was highly publicized and he was accused of a crime

he did not commit.        While in West, the defendant refused to even

look at evidence that would have established that the plaintiffs

had not stolen anything, here, the allegations of the complaint,

viewed in the light most favorable to plaintiff, allege that

defendants Thomas and Deaver -- public officers -- essentially

manufactured evidence to negate plaintiff's self defense claim

by (1) performing unscientific tests designed to prove a theory

that plaintiff's stab wounds were self-inflicted and the scene

staged to look like self defense; (2) creating a second report

supporting     that    theory    that    was     inconsistent   with    his    first

report; (3) writing the second report in a manner that hid the

existence of the first report by falsely suggested the second

report was the result of examination of the evidence of four

months   earlier      (when    the    first    report   was   done)    and    by   not

indicating that the second report was an amendment or supplement
                                           -30-
to the first report; and (4) bolstering the theory by making

false statements in the second report and in testimony regarding

what   the     Sheriff's        Office    lead        investigator         had   said.            We

believe      that      allegations        that         defendants          falsely        created

evidence to establish guilt equates with the West defendant's

refusal    to       look   at   evidence        that       would    have    exonerated           the

plaintiffs.

       The Court in West also noted that the foreseeability of

injury    is    a     factor     that     goes       to     the    outrageousness           of    a

defendant's conduct.             Id.      It stands to reason that the more

serious the crime of which someone is falsely accused and the

more   credible       the   accusers,          the    more    foreseeable        the       mental

anguish resulting therefrom.               Here, the crime of which plaintiff

was accused, first degree murder, is a much more serious offense

than the crime of which the plaintiff in West was accused and

the accusers -- experienced special agents of the SBI -- more

credible       to    the    public       than        the    store      manager       in     West.

Therefore,      the    nature     of     the    crime       and    the     identity       of     the

defendants in this case are factors that may be considered in

assessing the outrageousness of defendants' conduct.

       Defendants, however, argue that plaintiff's allegations do

not differ substantially from the conduct in Dobson.                             In Dobson,

a   department         store     employee        reported          a     customer      to        the
                                    -31-
Department of Social Services ("DSS") for child abuse after the

customer "yelled at the [15-month-old] child, picked her off the

counter where she had been sitting, and set her back down hard."

134 N.C. App. at 575, 521 S.E.2d at 713.               The investigation

against   the   customer   was   terminated   when   DSS   was   unable   to

substantiate the employee's claims, and the customer sued the

employee for IIED.      Id.      In holding that summary judgment was

properly granted in favor of the defendant employee, this Court

explained:

           Assuming arguendo that defendant [employee]
           exaggerated or fabricated the events she
           reported to DSS, the report served only to
           initiate an investigatory process. Although
           falsely reporting child abuse wastes the
           limited resources available to DSS and
           subjects the reported parent to questioning
           and investigation, in light of this Court's
           precedent, we cannot say that such actions
           constitute "extreme and outrageous conduct"
           which is "utterly intolerable in a civilized
           community."

Id. at 578-79, 521 S.E.2d at 715 (quoting Briggs, 73 N.C. App.

at 677, 327 S.E.2d at 311).

    In Dobson, the defendant was a private citizen whose false

accusations of criminal conduct merely served to initiate an

investigatory process.        The defendant's conduct in Dobson was

not considered outrageous in part due to the existence of an

independent     investigatory    process   that   served   to   protect   the

plaintiff from further proceedings based on false accusations.
                                                     -32-
In contrast, here, defendants are agents of the SBI who have an

official duty to investigate allegations of criminal conduct and

discover the truth.              They are the individuals who are supposed

to    be    conducting         the       independent          investigatory            process         that

would      protect     plaintiff              from    false       accusations.           When       those

individuals generate unsupported accusations, then the accused -

- in this case, plaintiff -- is subjected to public condemnation

of    him    as    a     murderer         and        is     not    merely       subjected         to    an

investigation.            As    a        result,       defendants'         misconduct          is      more

likely to result in the initiation or continuation of publicized

criminal proceedings than false accusations by private citizens.

Thus,       we    believe       that           defendants'          status       as      SBI      agents

distinguishes this case from Dobson.

       While       not     binding              authority,           we        note     that        other

jurisdictions have found that similar conduct by police officers

could       be    found    by        a     reasonable             jury    to     be     sufficiently

outrageous        to   support           an    IIED       claim.         See    Limone       v.   United

States, 579 F.3d 79, 99 (1st Cir. 2009) (conclusion that FBI

engaged in extreme and outrageous conduct supported by findings

that FBI knew that "scapegoats" were not involved in murder

"from the moment that [an informant] implicated them" and that

"FBI agents nonetheless assisted [the informant] in embellishing

his   apocryphal         tale,       helped          him    to    sell    that        tale   to     state
                                          -33-
authorities       and    the    jury,     and    covered    up    their    perfidy    by

stonewalling       the     scapegoats'          petitions    for       post-conviction

relief."); Pitt v. District of Columbia, 491 F.3d 494, 506 (D.C.

Cir.   2007)      (evidence      that    police     officer's       arrest     affidavit

omitted exculpatory evidence and contained at least one false

statement, and evidence that one officer tampered with evidence

in attempt to link plaintiff to crime supported conclusion by

reasonable juror that conduct was sufficiently "outrageous" for

IIED claim); Wagenmann v. Adams, 829 F.2d 196, 214 (1st Cir.

1987) (holding that where evidence could support inference that

officers conspired to arrest plaintiff and have him committed

and were "determined to accomplish this objective at all costs

and    by   the    nearest       means,     in    manifest       derogation     of   the

appellee's civil rights," trial court properly denied motion for

judgment notwithstanding the verdict on IIED claim).

       We   find    the    reasoning       in     these     cases      persuasive    and

consistent with the analysis North Carolina courts have applied.

Accordingly,       we    hold    that    plaintiff's       complaint      sufficiently

alleges     outrageous         conduct     and    reverse        the   trial    court's

dismissal of plaintiff's claim of IIED.

       D.   False Imprisonment

       False imprisonment is "'the illegal restraint of a person

against his will.'"             Moore v. Evans, 124 N.C. App. 35, 42, 476
                                 -34-
S.E.2d 415, 421 (1996) (quoting Marlowe v. Piner, 119 N.C. App.

125, 129, 458 S.E.2d 220, 223 (1995)).        "A false arrest is an

arrest without legal authority and is one means of committing a

false imprisonment."      Marlowe, 119 N.C. App. at 129, 458 S.E.2d

220 at 223.

    Plaintiff    contends    that   his   release   on   house   arrest

constituted false imprisonment.      We disagree.    As explained by

the Supreme Court of the United States:

         False arrest and false imprisonment overlap;
         the former is a species of the latter.
         Every confinement of the person is an
         imprisonment, whether it be in a common
         prison or in a private house, or in the
         stocks, or even by forcibly detaining one in
         the public streets; and when a man is
         lawfully in a house, it is imprisonment to
         prevent him from leaving the room in which
         he is. We shall thus refer to the two torts
         together as false imprisonment.    That tort
         provides the proper analogy to the cause of
         action   asserted    against   the    present
         respondents for the following reason: The
         sort of unlawful detention remediable by the
         tort of false imprisonment is detention
         without legal process[.]

                . . . .

              Reflective of the fact that false
         imprisonment consists of detention without
         legal process, a false imprisonment ends
         once the victim becomes held pursuant to
         such process -- when, for example, he is
         bound over by a magistrate or arraigned on
         charges.     Thereafter, unlawful detention
         forms part of the damages for the entirely
         distinct   tort of malicious prosecution,
         which remedies detention accompanied, not by
                                           -35-
           absence of legal process, but by                      wrongful
           institution of legal process.

Wallace v. Kato, 549 U.S. 384, 388-90, 166 L. Ed. 2d 973, 980-

81, 127 S. Ct. 1091, 1095-96 (2007)                     (internal citations and

quotation marks omitted).

      Plaintiff's      complaint       alleges    that    he   was   arrested       only

after being indicted by a grand jury.                   He was then released on

house arrest.     Plaintiff's complaint fails to allege that he was

confined without legal process or other legal authority.                        While

plaintiff's allegation that his detention and house arrest were

not supported by probable cause is sufficient to state a claim

for malicious prosecution, plaintiff has not, on appeal, cited

any authority that would allow him to also proceed with a false

imprisonment claim.            Accordingly, we affirm the dismissal of

this claim.

      E.   Public Official Immunity

      Public   officials       sued     in    their     individual      capacity    are

entitled to public official immunity from claims in tort unless

their "conduct is malicious, corrupt, or outside the scope of

official authority."           Epps v. Duke Univ., Inc., 122 N.C. App.

198, 205, 468 S.E.2d 846, 852 (1996).                   "[I]f a plaintiff wishes

to sue a public official in his personal or individual capacity,

the   plaintiff   must,        at    the     pleading    stage    and     thereafter,

demonstrate     that     the        official's    actions        (under     color    of
                                             -36-
authority)       are     commensurate            with    one      of     the     'piercing'

exceptions."          Id. at 207, 468 S.E.2d at 853.                     To withstand a

defendant's motion to dismiss a claim based on the defense of

public official immunity, the facts alleged in the complaint

must support a conclusion that one of the piercing exceptions

apply.       Meyer v. Walls, 347 N.C. 97, 114, 489 S.E.2d 880, 890

(1997).

       Here,     plaintiff's           complaint        alleges        that     defendants'

conduct was willful, intentional, and malicious.                              As previously

discussed,       the     facts        alleged       support       an     inference       that

defendants      acted     maliciously.             Therefore,     to     the    extent    the

trial court dismissed the complaint based on public official

immunity      with     respect       to   the    malicious      prosecution       and    IIED

claims, the trial court erred.

II.    Federal Constitutional Claims

       Plaintiff       argues        that    his    complaint      adequately       alleged

facts    to    support     a     §    1983      claim   for     malicious       prosecution

against       defendants       Thomas,       Deaver,    and     Pendergraft       in    their

individual capacities.                Plaintiff apparently bases the § 1983

claim upon a violation of plaintiff's Fourth Amendment right to

be    free     from    unreasonable          seizure,     but     otherwise       makes    no

attempt to distinguish the § 1983 malicious prosecution claim

from    the    state    law     malicious        prosecution      claim.         Defendants
                                         -37-
argue, however, that they are entitled to qualified immunity for

this claim and that the trial court properly dismissed the claim

on this basis.

      "The     defense     of   qualified       immunity       shields    government

officials from personal liability under § 1983 'insofar as their

conduct      does   not    violate      clearly      established     statutory    or

constitutional rights of which a reasonable person would have

known.'"      Toomer v. Garrett, 155 N.C. App. 462, 473, 574 S.E.2d

76, 86 (2002) (quoting Andrews v. Crump, 144 N.C. App. 68, 75-

76,   547    S.E.2d    117,     122    (2001)).        "The    qualified    immunity

inquiry requires a determination of whether the right at issue

was clearly established at the time it was allegedly violated."

Id. at 474, 574 S.E.2d at 87.

      On    appeal,    plaintiff       makes    no     argument    that   defendants

violated a clearly established constitutional right.                         Rather,

plaintiff, citing only Epps v. Duke Univ., Inc., 116 N.C. App.

305, 447 S.E.2d 444 (1994), confuses the doctrine of qualified

immunity with the doctrine of public official immunity, arguing

generally      that    because        "[u]nder       the   facts     alleged,    the

Defendants     could      not   have    acted     in    good    faith[,]"    neither

immunity defense is available to defendants at this stage of the

proceeding.
                                           -38-
       Plaintiff, therefore, does not make any relevant argument

or     cite    any     authority     in     support       of   his     assertion    that

defendants are not entitled to qualified immunity for the § 1983

malicious prosecution claim.               "Issues not presented in a party's

brief, or in support of which no reason or argument is stated,

will     be    taken      as    abandoned."         N.C.R.      App.    P.   28(b)(6).

Accordingly,         we     affirm       the    trial      court's      dismissal     of

plaintiff's § 1983 claims.

                                         Conclusion

       In     sum,     we      reverse    the     trial    court's      dismissal    of

plaintiff's state law malicious prosecution and IIED claims, as

neither of those claims are barred by the statute of limitations

or public official immunity and the allegations of the complaint

are legally sufficient to state a claim for relief.                          As to the

remaining claims, we affirm.


       Affirmed in part; reversed in part.

       Judges ROBERT C. HUNTER and McCULLOUGH concur.
