An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.



                                NO. COA13-748
                       NORTH CAROLINA COURT OF APPEALS

                             Filed: 4 February 2014


CHRISTOPHER W. LIVINGSTON,
     Plaintiff,

      v.                                      Wake County
                                              No. 11 CVS 00015
CAROLIN D. BAKEWELL, Esq.;
MARGARET CLOUTIER, Esq.; CARMEN H.
BANNON, Esq.; In their Individual
and official capacities; and THE
NORTH CAROLINA STATE BAR,
     Defendants.


      Appeal by plaintiff from order entered 2 January 2013 by

Judge Donald W. Stephens in Wake County Superior Court.                       Heard

in the Court of Appeals 20 November 2013.


      Christopher W. Livingston Esq., pro se.

      The North Carolina State Bar, by Deputy Counsel David R.
      Johnson and Counsel Katherine Jean, for defendant-appellee.


      PER CURIAM.


      Plaintiff Christopher Livingston appeals the order entered

2 January 2013 dismissing his complaint for failure to state a

claim pursuant to Rule 12(b)(6).              On appeal, plaintiff contends

that the trial court erred as a matter of law in dismissing his
                                             -2-
claims.        After   careful       review,       we    affirm           the    trial    court’s

order.

                                      Background

      In his brief, plaintiff includes a great deal of facts that

are   irrelevant       to    his    appeal,        including          a    vast    history      of

various lawsuits he has either filed or been a part of, none of

which    are     particularly        pertinent          to    his     issues       on     appeal.

However, the facts necessary to understand the issues on appeal

are the following: Mr. Livingston filed a lawsuit in Wake County

Superior     Court     on    behalf     of    two       individuals             against      Jessie

Riddle (“Mr. Riddle”), a Utah attorney, Mr. Riddle’s law firm,

and Capital Acquisitions and Management Company (“CAMCO”), an

Illinois company, alleging various causes of action based on

their debt collection actions.                 The matter was removed to the

U.S. District Court for the Eastern District of North Carolina.

Although Mr. Livingston filed his application for admission to

the   U.S.     District      Court    for     the       Eastern       District          of    North

Carolina, he failed to take the oath of office as required by

court rules.

      As   the    North      Carolina      case     was      progressing           in    District

Court, Mr. Riddle and his law firm commenced an action against

Mr.   Livingston       and    his    two     clients         in   a       Utah    court.       Mr.
                                                -3-
Livingston filed a motion in North Carolina District Court to

stay the Utah action.              The matter came on for hearing before the

Honorable Terrence W. Boyle.                     Judge Boyle not only questioned

Mr. Livingston about his failure to take the oath of office in

order    to    be     admitted      in    the     Eastern      District,       but    he   also

criticized      Mr.     Livingston’s        motives         for    filing      the    lawsuit.

After the hearing, Mr. Livingston filed a motion to disqualify

Judge     Boyle       which        even    Mr.        Livingston         characterized       as

“unprofessional and extremely regrettable.”

      Even though Mr. Livingston was not admitted to practice law

in Utah, he filed a pro se motion to dismiss or for summary

judgment on behalf of himself and his clients.

      These incidents were reported to the North Carolina State

Bar     (“the       State     Bar”),       and        it    instituted         a     grievance

investigation.           A    complaint      was       filed      with   the   Disciplinary

Hearing       Commission      (“the       DHC”)       alleging     that    Mr.     Livingston

engaged in the unauthorized practice of law in both Utah and the

Eastern District and that he engaged in conduct prejudicial to

the administration of justice by filing an unprofessional motion

to recuse Judge Boyle.                The DHC concluded that Mr. Livingston

violated       Rule    5.5    of    the    Rules       of   Professional           Conduct   by

drafting motions on behalf of his clients for filing in Utah
                                                      -4-
courts     when      he        was     not       admitted          to     practice     law     there.

Moreover,      the     DHC      found        that      Mr.    Livingston           engaged    in    the

unauthorized practice of law by appearing before Judge Boyle

without    taking         the        oath    of       office.           In   noting    that     these

violations       were      minor,       the       DHC       issued      an   admonition.           With

regard to the motion to recuse Judge Boyle, the DHC found that,

although       it    was        unprofessional,               it     did     not     constitute      a

violation      of      the     Rules        of    Professional             Conduct    and     entered

summary    judgment          in      favor       of    Mr.    Livingston.            See    Order    of

Discipline, State Bar v. Livingston, 06 DHC 11 (2008).                                       Over the

next     few    years,          the     State          Bar    investigated           several       more

grievances against plaintiff.                          However, it does not seem that

these later grievances have any bearing on the current appeal.

       On 31 August 2011, plaintiff filed an amended complaint

against the State Bar and Carolin Bakewell (“Ms. Bakewell”),

Marget     Cloutier          (“Ms.      Cloutier”),             and       Carmen     Bannon     (“Ms.

Bannon”), in both their official capacities as counsel for the

State    Bar     and      in      their      individual            capacities       asserting       the

following causes of action: (1) monetary claims and a request

for injunctive relief pursuant to 42 U.S.C. § 1983; (2) tort

claims     for       malicious              prosecution;            and      (3)     direct     state

constitutional claims based on violations of Art. 1, secs. 14,
                                          -5-
19, and 36 of our North Carolina Constitution.                        As an initial

matter, we note that plaintiff’s complaint is often confusing

and includes information related to lawsuits and cases he is

involved     with   that    have    nothing     to   do     with    the   State    Bar’s

prosecution of him.          On 25 September 2012, defendants filed a

motion to dismiss based on Rule 12(b)(1), (2), and (6).                              The

matter came on for hearing on 11 December 2012.                       On 17 December

2012,    the   trial      court    entered      an   order     dismissing      all    of

plaintiff’s      claims      against      all     defendants        based     on     Rule

12(b)(6).      Plaintiff timely appealed.

                                     Arguments

       Initially, we note that plaintiff’s arguments on appeal are

difficult to follow and often include no factual allegations to

support them.       However, for the following reasons, we affirm the

trial court’s order as to each claim.

       “When reviewing an order of dismissal for failure to state

a    claim   upon   which    relief      may    be   granted       pursuant   to   Rule

12(b)(6), we assess the legal sufficiency of the complaint while

taking all of the material factual allegations included therein

as true.”      Charlotte Motor Speedway, LLC v. Cnty. of Cabarrus,

__    N.C.   App.   __,     __,    748   S.E.2d      171,    175    (2013).        “When

analyzing a 12(b)(6) motion, the [trial] court is to take all
                                           -6-
factual     allegations      as    true,    but       should        not    presume       legal

conclusions to be true.”            Acosta v. Byrum, 180 N.C. App. 562,

567, 638 S.E.2d 246, 250 (2006).                 “Dismissal is proper when one

of    the   following      three     conditions          is        satisfied:      (1)    the

complaint      on   its    face     reveals       that        no     law    supports      the

plaintiff's claim; (2) the complaint on its face reveals the

absence of facts sufficient to make a good claim; or (3) the

complaint      discloses     some    fact     that      necessarily             defeats    the

plaintiff’s claim.”          Bissette v. Harrod, __ N.C. App. __, __,

738   S.E.2d    792,   797    (internal      quotation             marks    and    citations

omitted),      disc.   review     denied,        __   N.C.     __,        747    S.E.2d   251

(2013).

I.    Plaintiff’s 42 U.S.C. § 1983 Claims

      Suits for relief from federal constitutional violations are

authorized under Section 1983, which provides:

             Every person who, under color of any
             statute, ordinance, regulation, custom, or
             usage, of any State or Territory or the
             District of Columbia, subjects, or causes to
             be subjected, any citizen of the United
             States   or    other   person    within   the
             jurisdiction thereof to the deprivation of
             any   rights,   privileges,   or   immunities
             secured by the Constitution and laws, shall
             be liable to the party injured in an action
             at law, suit in equity, or other proper
             proceeding for redress[.]

42 U.S.C. § 1983 (2000).             “When Congress enacted 42 U.S.C. §
                                           -7-
1983, it conferred upon injured plaintiffs a federal remedy for

violations of federal constitutional rights committed by state

actors.”      Gilbert v. N.C. State Bar, 363 N.C. 70, 79-80, 678

S.E.2d 602, 608 (2009).             “Evaluation of the applicability of §

1983    claims    to     the     State   or    state      officials    is    generally

bifurcated according to the kind of relief requested.”                             Toomer

v. Garrett, 155 N.C. App. 462, 472, 574 S.E.2d 76, 86 (2002).

          A. Plaintiff’s Request for Monetary Damages

       With   regard     to     monetary      damages,    our   Supreme      Court   has

concluded that, “when an action is brought under section 1983 in

state     court       against    the     State,     its    agencies,      and/or     its

officials acting in their official capacities, neither a State

nor     its   officials         acting    in     their    official     capacity      are

‘persons’ under section 1983 when the remedy sought is monetary

damages.”     Corum v. Univ. of N.C., 330 N.C. 761, 771, 413 S.E.2d

276, 282-83 (1992).              Accordingly, with regards to plaintiff’s

claims for monetary damages against the State Bar and the other

defendants       in    their     official      capacities,      plaintiff      is     not

entitled to relief as a matter of law.                      Thus, the trial court

did not err in dismissing these claims.

       With   regard     to     plaintiff’s      claims    against    defendants      in

their    individual      capacities,       “public       officials    sued    in    their
                                    -8-
individual     capacities   for   violations    of   §   1983    may    be   held

liable for monetary damages.”             Toomer, 155 N.C. App. at 473,

574   S.E.2d    at   86.    However,      defendants     may    under   certain

circumstances raise the doctrine of qualified immunity.                       Id.

“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.’”                       Id.

Our Court has noted that:

           Under the doctrine of qualified immunity,
           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.        Resolution of
           whether a government official is insulated
           from    personal   liability   by    qualified
           immunity   turns   on   the  objective   legal
           reasonableness of the official’s action
           assessed in light of the legal rules that
           were ‘clearly established’ at the time it
           was taken.

Roberts v. Swain, 126 N.C. App. 712, 718, 487 S.E.2d 760, 765

(internal citations and quotation marks omitted), disc. review

denied, 347 N.C. 270, 493 S.E.2d 746 (1997).

      Pursuant to N.C. Gen. Stat. § 84-23(a) (2013), the State

Bar    was created by the Legislature to, among other things,
                                               -9-
regulate the professional conduct of attorneys.                            In order to do

so, the State Bar is tasked with investigating and prosecuting

matters of attorney misconduct.                      Id.    The procedural rules that

the State Bar must follow in this effort are codified in the

North Carolina Administrative Code.                        See generally, 27 N.C.A.C.

Ch. 1, Sub. B, § .0100 et seq. (2013).

      Here, in the complaint, plaintiff claims that the State Bar

“illegally harassed” him by: (1) not taking any action against

Judge    Boyle;    (2)    taking         the     side        of    bill    collectors     and

corporate lawyers; (3) failing to take action against CAMCO and

Mr.   Riddle’s    law    firm;       (4)    “obstructing            consumer   justice       by

aiding    and     comforting         scofflaw          debt       collectors   and      their

corporate    lawyers”;        (5)    knowingly         prosecuting        plaintiff     on   a

false charge of UPL; (6) filing frivolous lawsuits against him;

and (7) acting unprofessionally and arrogantly when plaintiff

tried to discuss the case.                 While the complaint contains these

types of conclusory allegations, plaintiff provides no factual

basis for them.      Moreover, based on our review, we conclude that

defendants’ actions were objectively reasonable and well within

their    authority       as    set       out     in        the    administrative      rules.

Therefore,      defendants,         in     their       individual         capacities,     are

entitled to the defense of qualified immunity with regard to
                                      -10-
plaintiff’s § 1983 claims against them.

         B. Injunctive Relief

    Finally, with regard to plaintiff’s request for injunctive

relief with regard to his § 1983 claims, “where a plaintiff

seeks injunctive relief against the State and its officials,

state    officials     acting   in        their   official    capacities            are

considered ‘persons’ under § 1983.”               Toomer, 155 N.C. App. at

472-73, 574 S.E.2d at 86.          Furthermore, the defense of qualified

immunity is not available in suits for injunctive relief against

the State and its officials acting in their official capacities.

Corum, 330 N.C. at 772, 413 S.E.2d at 283.

    In his complaint, plaintiff requests the trial court issue

a permanent injunction prohibiting the State Bar from continuing

with “meritless grievances” now pending against plaintiff and

“forbidding    all     future   illegal      harassment      of    [p]laintiff.”

While    it   is   undisputed      that    injunctive     relief        may    be    an

available remedy for a plaintiff, here, the absence of factual

allegations necessary to establish defendants’ actions were such

that plaintiff was entitled to this type of relief defeats his

claim.    The State Bar and the individual defendants, as counsel

for the State Bar, are statutorily required to regulate the

legal    profession.       While     plaintiff     may    feel     as     if    their
                                          -11-
prosecution of him was unreasonable, he has failed to include

the   facts   necessary      to    prove    it.     In    contrast,    nothing    in

plaintiff’s     complaint     or     in     defendants’     motion     to   dismiss

indicates     that   defendants      did    not   pursue    their    investigation

properly.     Therefore, plaintiff is not entitled to prohibit the

State Bar from doing its job when its conduct was reasonable.

Accordingly, the trial court did not err in dismissing                           this

claim pursuant to Rule 12(b)(6).

II.   Plaintiff’s Malicious Prosecution Claims

      “Malicious prosecution is a theory applicable to criminal,

civil, and administrative proceedings that have been instituted

with malice and without probable cause.”                   Gilbert, 363 N.C. at

79, 678 S.E.2d at 607.             In order to prevail, a plaintiff must

establish     the    following      elements:      “(1)    the     proceeding    was

instituted maliciously; (2) without probable cause; and (3) has

terminated     in    favor    of     the     person      against    whom    it   was

initiated.”     Carver v. Lykes, 262 N.C. 345, 352, 137 S.E.2d 139,

145 (1964).

      Plaintiff’s claim for malicious prosecution fails for two

reasons.      First, there is no indication that defendants acted

without probable cause.             In the case against plaintiff, the

Grievance Committee found probable cause and issued a censure.
                                      -12-
Plaintiff rejected the censure and requested a hearing before

the DHC.     Based on that hearing, the DHC issued an admonition

based on plaintiff’s unauthorized practice of law in both Utah

and   the    Eastern   District.        While     the   DHC      concluded          that

plaintiff’s motion to recuse Judge Boyle did not violate the

Rules of Professional Conduct, even plaintiff characterized his

motion to recuse as “unprofessional.”              Thus, while the DHC may

not have specifically disciplined plaintiff for his motion, his

own concession regarding the tone of it establishes that the

Grievance Committee had reason to believe that plaintiff had

violated the Rules of Professional Conduct.

      Second, plaintiff has failed to include facts showing that

defendants     acted    with    malice.          “Malice      in       a    malicious

prosecution claim may be shown by offering evidence that [a]

defendant    was    motivated   by    personal    spite    and     a       desire    for

revenge or that [a] defendant acted with reckless and wanton

disregard    for    plaintiffs’      rights.”      Kirschbaum          v.    McLaurin

Parking Co., 188 N.C. App. 782, 789, 656 S.E.2d 683, 688 (2008).

With regard to defendants’ purported acts of malice, plaintiff

alleges,    among    other   things,    that     defendants:       (1)      knowingly

falsely prosecuted him for the unauthorized practice of law in

the Eastern District; (2) filed complaints against him solely
                                      -13-
 for   the   purpose    of     retaliation        and   harassment;     (3)    acted

 unprofessionally in their prosecution of him; (4) frivolously

 argued   wrong   law    and    misrepresented          the   facts   of      binding

 caselaw; and (5) intentionally wasted his time.                  Even treating

 these allegations as true, they are insufficient to establish

 that defendants acted with a personal desire for revenge or were

 done in wanton disregard of plaintiff’s rights.                      Accordingly,

 based on both the presence of probable cause and plaintiff’s

 inability   to   establish      actual      or     implied   acts    of      malice,

 defendant’s claims for malicious prosecution fail.

III.   Plaintiff’s Direct State Constitutional Claims

       In his prayer for relief, plaintiff contends that the facts

 pled have violated his rights under North Carolina’s Declaration

 of    Rights.    Specifically,       plaintiff         alleges   the      following

 violations: (1) violation of section 1 by “irrationally treating

 persons similarly situated to [him] as being above the law and

 allowing them to cause great public harm”; (2) section 5 by

 “acting inconsistently with the supremacy of the United States

 Constitution”;   (3)    section     14   by      “restraining    and      punishing

 [his] freedom of speech”; and (4) section 19 by “depriv[ing]”

 him of property and denying him equal protection.                         Plaintiff

 asserts these claims against defendants in both their official
                                           -14-
and individual capacities.

          A. Claims     Against        Defendants          in    their           Individual

            Capacities

    With regard to plaintiff’s claims against Ms. Bakewell, Ms.

Bannon, and Ms. Cloutier in their individual capacities, we note

that “North Carolina does not recognize direct North Carolina

constitutional claims against public officials acting in their

individual capacities.”            Bigelow v. Town of Chapel Hill, __ N.C.

App. __, __, 745 S.E.2d 316, 327, disc. review denied, __ N.C.

__, 747 S.E.2d 543 (2013).             Thus, we affirm dismissal of all of

plaintiff’s      claims      against       defendants       in       their       individual

capacities.

          B. Claims Against Defendants in their Official Capacities

    With     regard     to   plaintiff’s          direct    constitutional           claims

against    the    State      Bar     and     defendants         in     their      official

capacities,      our    de    novo     review       reveals          that    plaintiff’s

complaint fails to include the necessary factual allegations to

support his contention that defendants violated sections 1, 5,

14, and 19 of the North Carolina Declaration of Rights.                             Instead

of providing facts to set out the necessary elements of his

constitutional         claims,       plaintiff        only       makes           conclusory

statements     such     as    “Ms.     Bakewell       on     behalf         of    the   Bar
                                           -15-
frivolously argued knowingly wrong law, misrepresented the facts

and   holdings      of    almost     every    court     opinion    she        cited,   and

ignored     clear     and       binding     U.S.   Supreme       Court    precedent.”

Similarly, purportedly in support of his equal protection claim,

plaintiff argues that the State Bar does not discipline what

plaintiff refers to as “corporate lawyers” but, instead, only

harasses him.        Although we must treat all factual allegations as

true in a plaintiff’s complaint, these types of statements are

conclusory, and they are not entitled to the same presumption on

review.      By not providing some factual foundation for these

conclusory allegations, plaintiff’s complaint, on its face, is

insufficient        to      defeat        defendants’     motion         to     dismiss.

Consequently, we affirm the trial court’s order.

                                     Conclusion

      In   summary,       the     trial    court   did    not     err    in     granting

defendants’ motion to dismiss as to all of plaintiff’s claims

for failure to state a claim based on the following reasons.

Because the State Bar and defendants in their official capacity

are not “persons,” plaintiff is not entitled to seek monetary

relief     against       them    pursuant     to   §    1983.      With       regard    to

plaintiff’s request for monetary damages against defendants in

their    individual       capacities,        defendants    are    entitled        to   the
                                         -16-
defense of qualified immunity and are shielded from liability

under     §    1983.       Plaintiff’s     request    for     injunctive    relief

pursuant       to   §   1983   fails   because   he    has    not   included   the

necessary factual allegations to establish that he is entitled

to this type of remedy.          Plaintiff is not entitled to relief for

his tort claim of malicious prosecution because plaintiff has

failed to establish that defendants acted without probable cause

and with malice.          Finally, as a matter of law, plaintiff may not

seek relief against defendants in their individual capacities

for     direct      constitutional     claims    under      the   North    Carolina

Constitution.           With regard to his direct constitutional claims

against       defendants    in   their   official     capacities,     plaintiff’s

claims fail because plaintiff has not included the necessary

factual allegations to support his claims.

      AFFIRMED.

      Panel consisting of: Judges HUNTER, Robert C., CALABRIA,
      and HUNTER, JR., Robert N.

      Report per Rule 30(e).
