                             NO. COA13-404

                   NORTH CAROLINA COURT OF APPEALS

                         Filed:   4 February 2014


JAMES HINSON,
     Plaintiff,

     v.                                Guilford County
                                       No. 10 CVS 9711
CITY OF GREENSBORO, DAVID WRAY,
former Police Chief of the City of
Greensboro, in his official and
individual capacity, and RANDALL
BRADY, former Deputy Police Chief
of the City of Greensboro, in his
official and individual capacity,
     Defendants.


    Appeal by defendants from order entered 18 December 2012 by

Judge Edwin G. Wilson, Jr., in Guilford County Superior Court.

Heard in the Court of Appeals 8 October 2013.


    Ferguson Chambers & Sumpter, P.A., by James E. Ferguson, II,
    for plaintiff-appellee James Hinson.

    Van Laningham Duncan PLLC, by Allison O. Van Laningham, Alan
    W. Duncan, and L. Cooper Harrell, for defendant-appellant
    City of Greensboro.

    Smith, James, Rowlett & Cohen, LLP, by Seth R. Cohen, and
    Carruthers & Roth, P.A., by Kenneth R. Keller, for defendant-
    appellants Randall Brady and David Wray.


    McCULLOUGH, Judge.


    Defendants City of Greensboro, David Wray, and Randall Brady

appeal from a trial court’s interlocutory order, denying their
                                -2-
motions to dismiss plaintiff James Hinson’s complaint, except as

to plaintiff’s claim for punitive damages against defendant City

of Greensboro.   Based on the following reasons, we reverse the

trial court’s denial of defendants’ motion to dismiss with respect

to plaintiff’s State claims against defendant City of Greensboro

and defendants David Wray and Randall Brady in their official

capacities.

                          I.   Background

      On 30 May 2008, plaintiff James Hinson filed a complaint

against defendant City of Greensboro (“defendant Greensboro”),

David Wray, former Police Chief of the City of Greensboro, in his

official and individual capacity (“defendant Wray”), and Randall

Brady, former Deputy Police Chief of the City of Greensboro, in

his   official   and   individual   capacity   (“defendant   Brady”)

(collectively “defendants”).    Plaintiff sought compensation and

alleged that defendants had subjected plaintiff to discrimination

on the basis of race, conspired to discriminate on the basis of

race, and conspired to injure plaintiff in his reputation and

profession.   Plaintiff amended this complaint on 6 February 2009.

On 4 September 2009, plaintiff filed a voluntary dismissal of his

claims, without prejudice.
                                   -3-
     Plaintiff filed a second complaint on 3 September 2010.            The

complaint alleged the following, in pertinent part: Plaintiff, an

African-American, started working for the Police Department of the

City of Greensboro in 1991 as a police officer in training.

Plaintiff received numerous awards and received evaluations at the

level of “exceeds expectations” and “superior performance” from

the years 2000 through 2010.       On 1 December 2001, plaintiff was

promoted   to   Lieutenant.   In   2003   and   2004,   Chief   of   Police

defendant Wray and Deputy Police Chief defendant Brady began

“targeting plaintiff and creating problems for him in his workplace

because of plaintiff’s race.”

     The complaint further alleged that in 2003, defendants Wray

and Brady directed two officers to gather pictures of various black

officers employed by the Greensboro Police Department, including

a photograph of plaintiff, to be used in line-up books or to be

used in line-up photos while similarly situated white officers

were not treated in this manner.         From 2003 to 2004, defendants

Wray and Brady caused some black officers of the City of Greensboro

Police Department, including plaintiff, to be investigated by the

Special Investigation Division (“SID”) for alleged misconduct when

SID was not created for this purpose.       The Criminal Investigation

Division (“CID”) and Internal Affairs units were designed to
                                   -4-
investigate     matters    involving     Greensboro     Police   Officers.

Defendants required white officers suspected of wrongdoing to be

investigated by the CID, Internal Affairs Division, or caused some

white officers not to be investigated at all.

     Plaintiff was transferred from the Operation Support Division

to the Central Division under the direction of a Commanding Officer

who required plaintiff to complete a detailed monthly schedule.

Plaintiff alleges that similarly situated white officers were not

treated in this manner.       Plaintiff’s department-issued computer

was installed with a device that would monitor his activity while

no other lieutenants in the Greensboro Police Department were

monitored.     Plaintiff filed a grievance alleging retaliation and

a hostile work environment but dropped the grievance after a

meeting on 2 February 2005 where defendant Wray, defendant Brady,

an Assistant Chief, a Commanding Officer, and Police Attorney were

present.     In March 2005, at the instruction of defendant Wray, a

tracking device was placed on plaintiff’s patrol car.            Defendant

Brady advised plaintiff that he was under surveillance because he

was “possibly working off duty while on duty in violation of the

Greensboro     Police     Department     Departmental    Directives   and

Procedures.”     Plaintiff alleged that his race was the motivation

in initiating these investigations.
                                     -5-
       Defendant Wray falsely reported to the City Manager, Deputy

City Manager, City Attorney, and media that plaintiff was suspected

of being associated with illegal drug activity and other criminal

activity.    On 17 June 2005, plaintiff was suspended by defendant

Wray   for   alleged    on-going   relationships    with   prostitutes    and

others who have a reputation in the community for involvement in

criminal activity.       Defendant Wray also delivered a public media

statement falsely alleging that plaintiff was part of an “ongoing

multi-jurisdictional criminal investigation” and that plaintiff’s

actions were under “internal review.”         Even though plaintiff was

cleared by SID for any alleged wrongdoing, defendant Wray initiated

an additional investigation of plaintiff by hiring retired and

former officers of the Internal Affairs Division. Defendants Brady

and Wray approved an additional investigation which did not adhere

to   the   Greensboro    Police    Department’s    policies   and   Standard

Operating Procedures.       It was completed on 31 August 2005.          On 5

June 2005, plaintiff was placed on leave.            He was reinstated in

January 2006.    Since 2001, plaintiff has not been promoted and has

not received any awards or commendations within the department.

       Plaintiff’s complaint alleged discrimination on the basis of

his race, conspiracy to discriminate on the basis of race, and

conspiracy to injure plaintiff and his reputation and profession
                                         -6-
in violation of federal law, 42 USC § 1981, § 1983, and § 1985 and

in violation of North Carolina common law.                   Plaintiff argued that

defendants had waived their governmental immunity by the purchase

of liability insurance, as provided in N.C. Gen. Stat. § 160A-

4851, and that defendant Greensboro was liable as                           respondeat

superior     as   to   each   of   the   state      common    law    claims   against

defendants Wray and Brady.

     On 22 November 2010, defendant Wray and defendant Brady filed

motions to dismiss pursuant to Rule 12(b)(6) of the North Carolina

Rules   of    Civil    Procedure.        On    24    November       2010,   defendant

Greensboro filed a motion to dismiss pursuant to Rule 12(b)(1),

12(b)(2), and 12(b)(6).

     Following a hearing held on 16 October 2012, the trial court

entered an order on 18 December 2012.                The order denied defendant

Wray’s motion to dismiss and defendant Brady’s motion to dismiss.

The order denied defendant Greensboro’s motion to dismiss, except



1N.C.G.S.  § 160A-485(a) (2013) states that “[a]ny city is
authorized to waive its immunity from civil liability in tort by
the act of purchasing liability insurance. Participation in a local
government risk pool pursuant to Article 23 of General Statute
Chapter 58 shall be deemed to be the purchase of insurance for the
purposes of this section. Immunity shall be waived only to the
extent that the city is indemnified by the insurance contract from
tort liability.    No formal action other than the purchase of
liability insurance shall be required to waive tort immunity, and
no city shall be deemed to have waived its tort immunity by any
action other than the purchase of liability insurance. . . .”
                                   -7-
as to the claim for punitive damages against defendant Greensboro.

As to that claim only, the motion to dismiss was allowed.

     From this order, defendants appeal.

                        II.   Standard of Review

     “On appeal of a 12(b)(6) motion to dismiss for failure to

state a claim, our Court conducts a de novo review[.]”           Ventriglia

v. Deese, 194 N.C. App. 344, 347, 669 S.E.2d 817, 819-820 (2008)

(citation omitted).     “We consider ‘whether the allegations of the

complaint, if treated as true, are sufficient to state a claim

upon which relief can be granted under some legal theory.’”

Bridges v. Parrish, 366 N.C. 539, 541, 742 S.E.2d 794, 796 (2013)

(citation   omitted).     “The   court   must   construe   the   complaint

liberally and should not dismiss the complaint unless it appears

beyond a doubt that the plaintiff could not prove any set of facts

to support his claim which would entitle him to relief.”           Enoch v.

Inman, 164 N.C. App. 415, 417, 596 S.E.2d 361, 363 (2004) (citation

and quotation marks omitted).

     “Dismissal is proper, however, 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
                                   -8-
defeats the plaintiff’s claim.” Newberne v. Dep’t of Crime Control

& Pub. Safety, 359 N.C. 782, 784, 618 S.E.2d 201, 204 (2005)

(citation and quotation marks omitted).

                             III. Discussion

                        A.     Scope of Review

     As a preliminary matter, we must first identify the issues

that are properly before this Court.

     “This Court has held that appeals from interlocutory orders

raising issues of governmental or sovereign immunity affect a

substantial   right   sufficient   to    warrant   immediate   appellate

review.”   Williams v. Devere Const. Co., Inc., __ N.C. App. __,

__, 716 S.E.2d 21, 25 (2011) (citation omitted).         However, this

only applies “for denial of a motion to dismiss under Rules

12(b)(2), 12(b)(6), and 12(c), or a motion for summary judgment

under Rule 56.   We cannot review a trial court’s order denying a

motion to dismiss under Rule 12(b)(1).”        Horne v. Town of Blowing

Rock, __ N.C. App. __, __, 732 S.E.2d 614, 621 (2012).         Therefore,

defendants’ challenges to the trial court’s denial of their motion

to dismiss under Rule 12(b)(2) and 12(b)(6) based on governmental

immunity grounds are properly before us.

     Defendants have also sought immediate review of the trial

court’s denial of their motion to dismiss based on non-immunity
                                   -9-
related challenges by petitioning this Court.2 However, defendants

have not stated how a substantial right would be lost absent

immediate     appellate   review    of   these    non-immunity   related

challenges.    Because it is well established that “[i]t is not the

duty of this Court to construct arguments for or find support for

appellant’s right to appeal from an interlocutory order” and that

“the appellant has the burden of showing this Court that the order

deprives the appellant of a substantial right which would be

jeopardized absent a review prior to a final determination on the

merits[,]”    we   decline   to    review   the   non-immunity   related

challenges to the trial court’s denial of defendants’ motions to

dismiss.     Jeffreys v. Raleigh Oaks Joint Venture, 115 N.C. App.

377, 380, 444 S.E.2d 252, 254 (1994) (citations omitted).            See



2The non-immunity related arguments advanced by defendants consist
of claims that plaintiff’s cause of action on the basis of race in
violation of 42 U.S.C. § 1981 was time-barred; that defendant
Greensboro could not be held liable on the basis of respondeat
superior; that plaintiff’s claim pursuant to 42 U.S.C. § 1983 is
a new claim that cannot be included based on the “savings
provision” of Rule 41(a) of the North Carolina Rules of Civil
Procedure; that plaintiff’s discrimination claim in violation of
42 U.S.C. § 1983 for violation of 42 U.S.C. § 1981 is time-barred;
that defendants cannot be parties to a conspiracy; that plaintiff
cannot show an agreement that would support a civil conspiracy due
to the intracorporate immunity doctrine; that the parties’ signed
“Memorandum of Understanding” operated as an accord and
satisfaction to bar plaintiff’s claims; and that plaintiff’s 2010
complaint did not properly allege claims against defendants Wray
and Brady in their individual capacities, thereby violating Rule
41(a) and being barred by the statute of limitations.
                                        -10-
Bynum v. Wilson County, __ N.C. App. __, __, 746 S.E.2d 296, 299-

300 (2013) (granting review of an interlocutory order raising

issues of governmental or sovereign immunity but limiting the scope

of review to only immunity-related challenges).

     Based     on    the   foregoing,     defendants    are       not    entitled   to

immediate appellate review of the trial court’s denial of their

motions to dismiss on the basis of any non-immunity related

arguments and we dismiss those portions of their appeal that rely

on non-immunity related issues.              Furthermore, we deny defendant’s

petitions for writ of certiorari, requesting that our Court review

the entirety of the 18 December 2012 Order, including non-immunity

related arguments.

                           B.     Sovereign Immunity

     Defendants       argue     that    plaintiff’s     state      law     claims   of

discrimination on the basis of race, conspiracy to discriminate on

the basis of race, and conspiracy to injure plaintiff in his

reputation     and    profession       all    fail   under    the       doctrine    of

governmental immunity.

     It is well established that “[s]overeign immunity shields the

State,   its    agencies,       and    officials     sued    in    their    official

capacities from suit on state law claims unless the State consents

to suit or waives its right to sovereign immunity.”                        Toomer v.
                                       -11-
Garrett, 155 N.C. App. 462, 480, 574 S.E.2d 76, 91 (2002) (citation

omitted).      “The rule of sovereign immunity applies when the

governmental    entity   is    being    sued   for    the   performance   of   a

governmental, rather than proprietary, function.”             Dalenko v. Wake

Cty. Dep’t of Human Servs., 157 N.C. App. 49, 55, 578 S.E.2d 599,

603   (2003)   (citation      omitted).        “Law    enforcement   is   well-

established as a governmental function, and includes the training

and supervision of officers by a police department.”             Pettiford v.

City of Greensboro, 556 F. Supp. 2d 512, 524 (2008) (citations and

quotation marks omitted).

      “A [city] may, however, waive such immunity through the

purchase of liability insurance. [I]mmunity is waived only to the

extent that the [city] is indemnified by the insurance contract

from liability for the acts alleged.”                 Satorre v. New Hanover

County Bd. Of Comm’rs, 165 N.C. App. 173, 176, 598 S.E.2d 142, 144

(2004) (citations and quotation marks omitted).                A municipality

may also waive its immunity by participating in a local government

risk pool.     N.C. Gen. Stat. § 160A-485(a) (2011).             “In order to

overcome a defense of [sovereign] immunity, the complaint must

specifically allege a waiver of [sovereign] immunity. Absent such

an allegation, the complaint fails to state a cause of action.”
                                 -12-
Green v. Kearney, 203 N.C. App. 260, 268, 690 S.E.2d 755, 762

(2010) (citation omitted).

        We find Pettiford v. City of Greensboro, 556 F. Supp. 2d 512

(M.D.N.C. 2008), to be instructive on the issue before us.        In

Pettiford, plaintiffs Nicole and Anthony Pettiford sought civil

damages based on alleged misconduct arising from an investigation

by the Greensboro Police Department which is operated and owned by

the defendant City of Greensboro.       Id. at 515.   The plaintiffs

filed the action in the Superior Court of Guilford County, North

Carolina, seeking recovery under the United States Constitution,

pursuant to 42 U.S.C. § 1983, the North Carolina Constitution, and

the common law of negligence.    Id. at 516.   The City of Greensboro

removed the action on the grounds of federal question jurisdiction.

Id.     In lieu of answering, the City of Greensboro filed a motion

to dismiss and a supplemental motion to dismiss pursuant to Rule

12(b)(1), (b)(2), (b)(6) and (b)(7)3 of the Federal Rules of Civil

Procedure.    Id.



3Rule 12(b) of North Carolina Rules of Civil Procedure provides
the following, in pertinent part: “Every defense, in law or fact,
to a claim for relief in any pleading, whether a claim,
counterclaim, crossclaim, or third-party claim, shall be asserted
in the responsive pleading thereto if one is required, except that
the following defenses may at the option of the pleader be made by
motion:   (1) Lack of jurisdiction over the subject matter, (2)
lack of jurisdiction over the person, . . . (6) Failure to state
a claim upon which relief can be granted, (7) Failure to join a
                                        -13-
      The   Pettiford     court   noted    that     the    City   of    Greensboro

acknowledged     its    participation      in   a   Local      Government   Excess

Liability    Fund      (“Fund”)   and     purchased       an   excess   liability

insurance policy, but that “neither constitute[d] a waiver of its

immunity.”    Id. at 525.     Uncontested evidence established that the

City of Greensboro is self-insured up to $100,000.00 and that the

Fund pays claims between $100,000.00 and $3,000,000.00, though the

City of Greensboro is obligated to repay the Fund in the entirety.

Id.   The court in Pettiford concluded that the Fund did not waive

the City of Greensboro’s immunity as explained in Dobrowolska ex

rel. Dobrowolska v. Wall, 138 N.C. App. 1, 8-9, 530 S.E.2d 590,

596   (2000),    because    the   Fund    failed     to    meet   the    statutory

requirements of a local government risk pool.

      Furthermore, the Pettiford court concluded that the City of

Greensboro’s purchase of excess liability insurance did not waive

its governmental immunity based on the explicit language of the

policy.     The City of Greensboro acknowledged that it purchased a

$5 million      excess liability policy to            cover claims above $3

million.     The Pettiford court examined the policy provisions of

the excess liability insurance and found them to be substantially




necessary party.”   N.C. Gen. Stat. § 1A-1, Rule 12(b)(1), (2),
(6), and (7) (2013).
                                      -14-
similar to those found in Magana v. Charlotte-Mecklenburg Board of

Education, 183 N.C. App. 146, 645 S.E.2d 91 (2007), where our Court

held that a local governmental entity had not waived its immunity

through the purchase of excess liability insurance.               Id. at 527.

Both the policy found in Magana and the City of Greensboro’s policy

in Pettiford “disclaim[ed] any right of indemnification until (1)

the damages exceed a self-insured retention amount ($1 million in

Magana and $3 million in [Pettiford]); (2) the insured has a legal

obligation to pay those damages; and (3) the insured actually pays

those damages to the claimant.”         Id. at 529.       The Pettiford court

concluded the following:

            This excess liability insurance does not apply
            unless and until the City has a legal
            obligation to pay the $ 3 million self-insured
            amount.    Because the City is immune from
            negligence claims up to $ 3 million, it will
            never have a legal obligation to pay this
            self-insured amount and, thus, has not waived
            its immunity through the purchase of this
            excess liability insurance policy.

The City of Greensboro’s motion to dismiss and supplemental motion

to dismiss the negligence claims were granted.             Id. at 529.

       In the case before us, plaintiff argued in the 3 September

2010    complaint     that      defendant    Greensboro     had   waived   its

governmental immunity by the purchase of liability insurance. In

its    motion   to   dismiss,    defendant   Greensboro     acknowledges   the
                                      -15-
purchase of liability insurance, but maintains that the liability

insurance does not constitute a waiver of its sovereign immunity.

In support of its defense, defendant Greensboro filed the affidavit

of Everette Arnold, Executive Director of the Guilford City/County

Insurance        Advisory     Committee   and     the    insurance      contracts

themselves4.        The     evidence indicates that in 2004, defendant

Greensboro purchased a $5 million excess liability policy with a

$3     million    self-insured    retention     from    the   Genesis   Insurance

Company.         Arnold’s affidavit stated that “the retained limit

($3,000,000.00) ‘must be paid by the Insured. . . .’                 Thus, under

the terms of the policy, the City [of Greensboro] is responsible

for paying $3,000,000.00 before there is any potential coverage

under the Genesis Insurance policy.” The language of the insurance

policy states that “[t]his policy is not intended by the Insured

to waive its governmental immunity[.]”                  We find these policy

provisions to be substantially similar to those found in Magana

and Pettiford.




4The defense of sovereign immunity is both a North Carolina Rules
of Civil Procedure Rule 12(b)(1) and Rule 12(b)(2) defense. Battle
Ridge Cos. v. N.C. DOT, 161 N.C. App. 156, 157, 587 S.E.2d 426,
427 (2003).     “Consideration of the affidavits and insurance
contracts is proper, without converting the motion to dismiss to
one for summary judgment, under motions filed pursuant to Rules
12(b)(1) and (b)(2) and with respect to state law claims.”
Pettiford, 556 F. Supp. 2d at 525 n.11.
                                        -16-
      Based   on   the   terms    of    defendant    Greensboro’s    liability

insurance policy, we hold that defendant Greensboro has not waived

its immunity as to plaintiff’s State claims of discrimination on

the basis of race, conspiracy to discriminate on the basis of race,

and   conspiracy    to   injure        plaintiff    in   his   reputation   and

profession.    Furthermore, plaintiff’s claims against defendants

Wray and Brady in their official capacities “is a suit against the

State” and therefore, sovereign immunity applies.               White v. Trew,

366 N.C. 360, 363, 736 S.E.2d 166, 168 (2013) (citation omitted);

See Clayton v. Branson, 153 N.C. App. 488, 493, 570 S.E.2d 253,

257 (2002) (stating that “[a]n officer acting in his official

capacity shares the municipalities immunity or waiver” (citation

omitted)).    Accordingly, we reverse the trial court’s denial of

defendants’ motion to dismiss with respect to plaintiff’s state

claims against defendant Greensboro and defendants Wray and Brady

in their official capacities.

      Reversed.

      Judges MCGEE and DILLON concur.
