An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-1215
                       NORTH CAROLINA COURT OF APPEALS

                                Filed: 1 July 2014


REINALDO OLAVARRIA,
     Plaintiff,

      v.                                      Wake County
                                              No. 13 CVS 00491
WAKE COUNTY HUMAN SERVICES: MARY
MORRIS, WARREN LUDWIG, MARILYN
FLETCHER, RAMON ROJANO, KATHY
SUTEHALL, LINDA CLEMENTS. WENDELL
POLICE DEPARTMENT: ROY D.
HOLLOWAY, JAMES E. GILL, and VANCE
JOHNSON,
     Defendants.


      Appeal by Plaintiff from order entered 6 August 2013 by

Judge Orlando F. Hudson, Jr., in Wake County Superior Court.

Heard in the Court of Appeals 20 March 2014.


      Reinaldo Olavarria, Pro Se.

      Office of the Wake County Attorney, by Assistant Wake
      County Attorney Kenneth R. Murphy, III, for Defendants Wake
      County Human Services, Mary Morris, Warren Ludwig, Marilyn
      Fletcher, Ramon Rojano, Kathy Sutehall, and Linda Clements.

      Cranfill Sumner & Hartzog LLP, by Kari R. Johnson, for
      Defendants Wendell Police Department, Roy D. Holloway,
      James E. Gill, and Vance Johnson.


      DILLON, Judge.
                                         -2-
    Reinaldo       Olavarria      (“Plaintiff”)        appeals       from    the     trial

court’s    order   dismissing      his    claims       against       Defendants         with

prejudice pursuant to Rules 12(b)(1),(2),(4),(5), and (6) of the

North Carolina Rules of Civil Procedure.                    We affirm.

                   I. Factual & Procedural Background

    On or about 3 January 2012, Plaintiff, proceeding pro se,

filed    two   nearly     identical      complaints,         one     in   Wake      County

District Court and one in Wake County Superior Court.1                                   The

complaints     asserted    the    same    claims       against       Defendants         Wake

County    Human    Services    (“WCHS”),        Mary       Morris,    Warren       Ludwig,

Marilyn    Fletcher,      Ramon    Rojano,          Kathy    Sutehall,       and     Linda

Clements (hereinafter, “Wake County Defendants”), and Defendants

Wendell Police Department (“WPD”), Roy D. Holloway, James E.

Gill,    and   Vance    Johnson     (hereinafter,           “Wendell      Defendants”)

(collectively,      “Defendants”).             In    his    complaints,       Plaintiff

alleged that Defendants had wrongfully investigated and arrested

him for misdemeanor child abuse in January 2011, following an

incident in which his daughter “hit her head on the head board

of her bed while throwing a tantrum regarding taking a bath” and

after    “trying   to   maneuver      around        [Plaintiff]      to     get    to   her

1
  Plaintiff’s district court complaint is dated 30 December 2011
and does not bear a file stamp.       Plaintiff’s superior court
complaint is dated 30 December 2011 and is filed stamped 3
January 2012.
                                     -3-
sister.”      Plaintiff    further   alleged    that   he    was    criminally

charged on 18 January 2010; that the Wake County Department of

Health and Human Services placed him on its list of “responsible

individuals” (“RIL”), see N.C. Gen. Stat. § 7B-311(b) (2011), in

February 2010; and that the charges against him were dismissed

in May 2010.      Plaintiff’s claims, though not numbered and set

out separately as such in the complaints, consisted of, inter

alia, violation of his constitutional rights – specifically, his

right   to    procedural    due   process   –    gross      negligence,    and

defamation.

    Defendants     filed   answers    denying   Plaintiff’s        allegations

and moving to dismiss Plaintiff’s complaints pursuant to Rules

12(b)(1),(2),(4),(5), and (6) of the North Carolina Rules of

Civil Procedure.    Defendants also requested that Plaintiff’s two

complaints be consolidated in Wake County Superior Court.

    Defendants’ motions to dismiss and motions to transfer the

district court case to superior court            were calendared to be

heard at the 2 April 2012 session in Wake County Superior Court.

Prior to the hearing, however, Plaintiff requested a continuance

on grounds that he was seeking representation of an out-of-state

attorney, Alfred Odom, and that Mr. Odom was “in the process of

obtaining pro hac vice admission to the State of North Carolina
                                             -4-
to   represent     [him]       in     this    case.”         Defendants         agreed      to

Plaintiff’s request for a continuance.

      Defendants’ motions again came on for hearing on 21 May

2012.      Plaintiff then informed Defendants that he was continuing

to   have    difficulties       securing       Mr.       Odom’s    representation         and

provided Defendants with a letter purportedly drafted (but not

signed) by Mr. Odom stating Mr. Odom’s intention to represent

Plaintiff in this case.

      Plaintiff’s       claims       were    ultimately       consolidated         in     Wake

County Superior Court, where Defendants’ motions came on for

hearing on 5 November 2012.                  Plaintiff appeared at the hearing

pro se.       By order filed 23 January 2013, the court granted

Defendants’      motions    to       dismiss       “based     upon       the    failure    of

plaintiff to have a Summons issued and served with the Complaint

as required by Rule 4 of the North Carolina Rules of Civil

Procedure.”      Plaintiff did not appeal from the 23 January 2013

order.

      On    11   January       2013,      Plaintiff        filed     a    new    complaint

alleging      essentially           the     same     claims       against        the      same

Defendants.       The    new    complaint          was   signed    by     Mr.    Odom,     and

summonses were served on Defendants.                      Defendants filed answers

asserting numerous defenses and moving to dismiss Plaintiff’s
                                    -5-
claims pursuant to Rules 12(b)(1),(2),(4),(5), and (6) of the

North Carolina Rules of Civil Procedure.          Defendants served Mr.

Odom with all documents.

      On 1 July 2013, Mr. Odom filed a motion with the court

seeking pro hac vice admission.           Attached to the motion was a

statement signed by Plaintiff in which Plaintiff indicated that

he had retained Mr. Odom to represent him in this case.                 By

order entered 12 July 2013, the court denied Mr. Odom’s motion

for pro hac vice admission on grounds that Mr. Odom had failed

to   associate   with   a   North   Carolina   attorney   in   filing   his

motion.

      Defendants’ motions to dismiss Plaintiff’s claims came on

for hearing on 25 July 2013, at which time Plaintiff requested a

continuance in light of Mr. Odom’s failure to gain pro hac vice

admission.     The court denied Plaintiff’s request and proceeded

to hear arguments on the merits of Defendants’ motions.                 By

order entered 6 August 2013, the trial court dismissed all of

Plaintiff’s claims with prejudice.          From this order, Plaintiff

appeals.

                              II. Analysis

           A. Plaintiff’s Request to Withdraw his Complaint
                                           -6-
       Plaintiff first asserts that Mr. Odom was unauthorized to

file    the    11    January       2013    complaint              on   his      behalf,        and,

“[b]ecause     of    [this]      error,    Plaintiff              moves     this    matter       be

remanded      to    the    North      Carolina           Superior         Court,     to        allow

Plaintiff     to    withdraw     this     complaint,              without      prejudice;        or,

that [he] be allowed to amend the complaint, upon remand, and

correct any deficiencies in filing.”                      Plaintiff alleges that Mr.

Odom “defrauded” him and engaged in “illegal” conduct and that

Mr.    Odom    is    liable      to     him        for    breach          of    contract        and

malpractice.        Whether or not Plaintiff may have causes of action

against Mr. Odom, however, is beyond the scope of this appeal.

Our concern here is limited to the validity of the complaint at

issue, and, as Defendants point out, this Court has specifically

held that “a pleading filed by an attorney not authorized to

practice      law   in    this    state       is    not       a    nullity.”         Thiel        v.

Detering, 68 N.C. App. 754, 756, 315 S.E.2d 789, 791 (1984); see

also Reid v. Cole, 187 N.C. App. 261, 265, 652 S.E.2d 718, 720-

21 (2007).

       Closely      related      to   Plaintiff’s             first       argument        is     his

contention that he was not served with Defendants’ filings in

this case – the filings were instead served on Mr. Odom – and

thus   Plaintiff      “also      cite[s]      lack       of       service      of   process       in
                                            -7-
support of his pleas to have the case remanded to allow the case

to be withdrawn and/or amended to cure deficiencies in filing.”

Our    review   of    the    record,    however,      reveals   that    Plaintiff

consistently         represented       to     Defendants    throughout       these

proceedings – from the time Plaintiff filed his two original

complaints on 3 January 2012 up until the 25 July 2013 hearing

on Defendants’ motions to dismiss the complaint in the instant

case – that Mr. Odom would be representing him as his attorney

in    this   case.      It   appears        that   Defendants   were,   in   fact,

required to serve Mr. Odom with their filings – and prohibited

from serving them on Plaintiff – under Rule 4.2(a) of the North

Carolina Rules of Professional Conduct, which expressly forbids

an attorney from directly communicating with an individual that

he knows to be represented by another attorney in the action.

This contention is accordingly overruled.

                      B. Defendants’ Motions to Dismiss

       We next address the merits of the trial court’s dismissal

of Plaintiff’s complaint.          The trial court dismissed Plaintiff’s

claims with prejudice “pursuant to Rules 12(b)(1),(2),(4),(5),

and (6) of the North Carolina Rules of Civil Procedure based

upon Plaintiff’s failure to properly serve the Defendants, lack

of personal jurisdiction, Plaintiff’s failure to allege waiver
                                               -8-
of governmental immunity, and Plaintiff’s [f]ailure to otherwise

assert    valid       claims       for        relief        against       the    Defendants.”

Although there appear to be several grounds upon which dismissal

was appropriate, we affirm the trial court’s decision based upon

the   deficiencies         present       on    the     face        on   the     complaint,   as

discussed below.

      This    Court       has    held    that    certain          governmental      entities,

such as county boards, departments, and agencies, are not legal

entities capable of being sued.                  Craig v. County of Chatham, 143

N.C. App. 30, 31, 545 S.E.2d 455, 456 (2001), aff’d in part,

rev’d in part on other grounds, 356 N.C. 40, 565 S.E.2d 172

(2002) (noting that, unlike the county itself, which possesses

“the right to sue and be sued” pursuant to N.C. Gen. Stat. §

153A-11, the Chatham County Board of Health and Chatham County

Board of Commissioners are not entities capable of being sued).

Accordingly,        the     claims       asserted           in     Plaintiff’s      complaint

against      WCHS    and        WPD,    which        fall        within    the    purview    of

governmental entities incapable of being sued, were correctly

dismissed.

      The remaining Wake County and Wendell Defendants consist of

individuals employed by WCHS and WPD, respectively.                                This Court

has stated that “[g]overnmental immunity shields municipalities
                                      -9-
and the officers or employees thereof sued in their official

capacities from suits based on torts committed while performing

a governmental function.”         Kephart by Tutwiler v. Pendergraph,

131 N.C. App. 559, 563, 507 S.E.2d 915, 918 (1998) (emphasis

added).     County officers and employees are likewise shielded by

governmental      immunity    “when   they    are   sued   in   their    official

capacities.”       Childs v. Johnson, 155 N.C. App. 381, 386, 573

S.E.2d 662, 665 (2002).

    Our Supreme Court has stated the following with respect to

the manner in which claims may be properly asserted against a

defendant    in    his   individual,     as    opposed     to   his     official,

capacity:

            Pleadings should indicate in the caption the
            capacity in which a plaintiff intends to
            hold   a   defendant     liable.   For  example,
            including    the    words    “in   his  official
            capacity” or “in his individual capacity”
            after a defendant’s name obviously clarifies
            the defendant’s status. In addition, the
            allegations as to the extent of liability
            claimed should provide further evidence of
            capacity. Finally, in the prayer for relief,
            plaintiffs should indicate whether they seek
            to   recover   damages     from   the  defendant
            individually     or   as    an   agent  of   the
            governmental entity.

Mullis v. Sechrest, 347 N.C. 548, 554, 495 S.E.2d 721, 724-25

(1998).     Our Supreme Court recently indicated that the foregoing

Mullis    “directive     is    mandatory”      in   determining       whether   a
                                          -10-
complaint asserts a claim against a defendant in his individual

capacity.      White v. Trew, 366 N.C. 360, 364, 736 S.E.2d 166, 169

(2013) (“Because the indicia of capacity mandated by Mullis are

absent from the caption, allegations, and prayer for relief, we

must presume that defendant is being sued in only his official

capacity.”).

      Our review of Plaintiff’s complaint reveals that Plaintiff

has alleged claims against these Defendants in their official

capacities.      Neither the caption of the complaint nor the prayer

for   relief     indicates     an    intention    to    assert    claims      or   seek

damages against these Defendants in their individual capacities.

The body of the complaint does not specify that the claims are

asserted     against     any    Defendant        in    his   or   her       individual

capacity; in fact, paragraph 38 of the complaint states that

each of the Wake County Defendants “acted in their official

capacity    as    officers,     agents,     and/or      employees      of    defendant

WCHS,” and, similarly, paragraph 39 of the complaint states that

each of the Wendell Defendants “acted in their official capacity

as officers, agents, and/or employees of defendant WPD.”                            We,

therefore,     presume   that       the   complaint     asserts     claims     against

these Defendants in their official capacities only.                     Id.

      Because     all    of    the    claims      set    forth    in    Plaintiff’s
                                 -11-
complaint   are   asserted   against   either   entities   incapable   of

being sued or employees of those entities           in their official

capacities only2, and because the complaint does not specifically

allege a waiver of governmental immunity, we hereby affirm the

trial court’s dismissal of these claims.         Paquette v. County of

Durham, 155 N.C. App. 415, 418, 573 S.E.2d 715, 717 (2002).

     AFFIRMED.

     Judges STROUD and HUNTER, JR. concur.

     Report per Rule 30(e).




2
  We note that there is no question that the conduct of the
individual Defendants of which Plaintiff complains concerns
Defendants’   conduct while   performing official government
functions.   Kephart by Tutwiler, 131 N.C. App. at 563, 507
S.E.2d at 918.
