              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA17-33

                             Filed: 5 September 2017

Nash County, No. 16 CVS 412

PHILLIP BRASWELL, Plaintiff,

             v.

BRANDON MEDINA, JOHN W. DENTON, MICHAEL A. WHITLEY, in their
individual and official capacities; THE CITY OF ROCKY MOUNT, N.C. AND THE
STATE OF NORTH CAROLINA, Defendants.


      Appeal by plaintiff from order entered 24 August 2016 by Judge Allen Baddour

in Nash County Superior Court. Heard in the Court of Appeals 17 May 2017.


      Ekstrand & Ekstrand LLP, by Robert C. Ekstrand, for plaintiff-appellant.

      Poyner Spruill LLP, by J. Nicholas Ellis, for defendants-appellees Medina,
      Denton, Whitley, and the City of Rocky Mount.

      Attorney General Joshua H. Stein, by Special Deputy Attorney General David
      J. Adinolfi II, for defendant-appellee State of North Carolina.


      DAVIS, Judge.


      In this appeal, we consider whether the plaintiff’s complaint stated valid

claims for relief both under 42 U.S.C. § 1983 and North Carolina common law based

on his allegations that the defendants caused him to be arrested and indicted without

probable cause by concealing and fabricating evidence. Plaintiff Phillip Braswell

appeals from the trial court’s order granting the motions to dismiss of Brandon

Medina, John W. Denton, Michael A. Whitley and the City of Rocky Mount
                                      BRASWELL V. MEDINA

                                         Opinion of the Court



(collectively the “Rocky Mount Defendants”) and the State of North Carolina

pursuant to Rule 12(b)(6) of the North Carolina Rules of Civil Procedure. For the

following reasons, we affirm in part and reverse in part.

                          Factual and Procedural Background

      We have summarized — and, at times, quoted — the pertinent facts below

using Plaintiff’s statements from his complaint, which we treat as true in reviewing

the trial court’s order granting a motion to dismiss under Rule 12(b)(6). Feltman v.

City of Wilson, 238 N.C. App. 246, 247, 767 S.E.2d 615, 617 (2014).

      After working at a Ford dealership for 19 years, Braswell left that job to become

a self-employed investor in 1997. Braswell’s uncle, William Greene, subsequently

loaned Plaintiff $10,000 in 1998 for investment purposes. The loan was memorialized

by an agreement in which Braswell agreed to repay the loan at an interest rate of

10%. Between 1998 and 2009, this loan was extended or “rolled over” each year by

agreement between Mr. Greene and Braswell. At no time was Braswell a licensed

investment advisor, and he did not hold himself out to be one.

      Between 1998 and 2006, Mr. Greene made additional loans to Braswell.1

Braswell’s aunt, Ola Beth Greene, also lent him money during this time period.

      In August or September of 2009, the Greenes requested repayment of one of

the loans, and Braswell responded that he “did not have the money, but he was



      1   At some point, the interest rate on the loans was reduced to 6%.

                                                 -2-
                                 BRASWELL V. MEDINA

                                   Opinion of the Court



working on it.” In December of that year, Braswell explained to the Greenes that he

could not repay the loans because their money had been “lost along with [Braswell’s]

own money in a collapse of investment markets that finance experts called a ‘global

financial meltdown.’”

      On 4 February 2010, the Greenes reported the loss of these funds — which they

claimed totaled $112,500 — to Officer Medina of the Rocky Mount Police Department.

Officer Medina subsequently secured a search warrant for Braswell’s home, which

was executed on 9 February 2010.          During the search, Officer Medina seized

computers; thumb drives; tax returns for the years 2003 through 2008; financial

statements from RBC, Bank of America, First South, Fidelity Investments, and

MBNA; delinquency notices; and two blank Fidelity Investments checkbooks.

      These records revealed that Braswell’s account with Fidelity Investments had

contained over $100,000 in early 2008, but by the end of that year “the financial crisis

had taken its toll on [Braswell]’s investments and the account had essentially no

value.” None of the records “seized from [Braswell’s] home tended to show that [he]

had done anything with the money he received from the Greenes other than invest it

in legitimate financial institutions.”

      Officer Medina proceeded to arrest Braswell pursuant to an arrest warrant he

had obtained. After being read his Miranda rights, Braswell gave the following

statement to Officer Medina:



                                          -3-
                                 BRASWELL V. MEDINA

                                   Opinion of the Court



             I began investing in stocks to try to make a living in late
             1998. I had mentioned to my uncle, Willie Greene, that I
             could pay him higher interest than a CD so he started
             investing some money with me too. I took this money and
             invested [in] stocks along with my own. I did real well for
             a while but then things started to change. I started losing
             money. I began to borrow from real estate [] my mom owned
             with her permission to recoup my losses. . . . Eventually I
             had lost my money along with my mom’s and my uncle’s
             and aunt’s. In May 2008, I had an accident [from] which I
             was expecting a settlement. I haven’t received the
             settlement yet, but between that [and] work I was
             expecting to make some or all of what I . . . owed my uncle
             and aunt. They had been rolling over their investments
             with me and I thought I would have several years to come
             up with the money. In September 2009, Willie said that he
             wanted to cash in one of his investments. I asked him to
             wait a while and I was going to try to come up with money
             but didn’t. My aunt asked me on December 8, 2009 about
             their investments and I told them that I had lost their
             money. I had taken my money that I borrowed from my
             mom’s property and some other money she had to try to
             invest to rectify the situation. But sadly it went from bad
             to worse when I had lost that too.

(Brackets and ellipses in original.)

      In addition to this statement, Braswell “provided [Officer] Medina [with]

records, documents and electronically stored information proving that he invested his

and the Greenes’ funds in legitimate financial institutions.” Nevertheless, Officer

Medina instituted criminal proceedings against Braswell, which ultimately resulted

in a grand jury indicting him on 5 April 2010 on the charge of obtaining property by

false pretenses in excess of $100,000.




                                          -4-
                                BRASWELL V. MEDINA

                                  Opinion of the Court



      Specifically, the indictment alleged that Braswell “unlawfully, willfully and

feloniously did knowingly and designedly with the intent to cheat and defraud, obtain

$112,500.00 in U.S. Currency from William Irvin Green [sic] and Ola Beth Green

[sic], by means of a false pretense which was calculated to deceive and did deceive”

— the false pretense being that the “property was obtained by [Braswell]

guaranteeing a six percent return on all invested monies from William Irvin Green

[sic] and Ola Beth Green [sic], when in fact [Braswell] did not invest the monies into

legitimate financial institutions.” (Emphasis added.)

      Braswell was held in pre-trial detention until his trial on 6 February 2012. He

was convicted and sentenced to 58 to 79 months imprisonment. On appeal, this Court

vacated his conviction, explaining as follows:

             [T]he “false pretense” or “false representation” which
             [Braswell] allegedly made to the Greenes consisted of a
             statement that [Braswell] was borrowing money from the
             Greenes for investment-related purposes despite the fact
             that he did not actually intend to invest the money that he
             received from them in any “legitimate financial
             institution.” A careful review of the record developed at
             trial reveals the complete absence of any support for this
             allegation.

State v. Braswell, 225 N.C. App. 734, 741, 738 S.E.2d 229, 234 (2013).

      We noted that the State did not present any records seized from the search of

Braswell’s home showing that he had failed to invest the Greenes’ money in

legitimate financial institutions and observed that “the fact that [Braswell]’s account



                                         -5-
                                      BRASWELL V. MEDINA

                                         Opinion of the Court



with Fidelity Investments contained $100,000 in early 2008 suggests that he did, in

fact, make investments with such institutions.” Id. Moreover, we explained, “the

State offered no direct or circumstantial evidence tending to show that, instead of

investing the money he borrowed from the Greenes, [Braswell] converted it to his own

use.” Id. at 742, 738 S.E.2d at 234.

       On 24 March 2016, Braswell filed a civil lawsuit in Nash County Superior

Court from which the present appeal arises. In his complaint, Braswell alleged, in

pertinent part, that

               [o]n 5 April 2010, Defendants Medina, Denton, and . . .
               Whitley[ ] fabricated probable cause to mislead a Nash
               County grand jury into returning a bill of indictment
               charging [Braswell] with felony obtaining property by false
               pretenses. At the time they caused the indictment to issue,
               Medina, Denton, and Whitley knew they did not have
               probable cause to believe [Braswell] committed that or any
               other crime.

       Braswell alleged federal claims under 42 U.S.C. § 1983 against Officers

Medina, Denton, and Whitley (collectively the “Officers”) in their individual

capacities.2    Additionally, Braswell asserted state law claims against the Rocky

Mount Defendants for malicious prosecution, obstruction of justice, negligence,

intentional infliction of emotional distress, and negligent infliction of emotional



       2   Although Braswell’s complaint focuses heavily on the actions of Officer Medina, it also
includes allegations against Officers Denton and Whitley in connection with their alleged participation
in the fabrication and concealment of evidence that led to Braswell’s prosecution. Moreover, the Rocky
Mount Defendants’ arguments on appeal do not differentiate between the three officers. We therefore
utilize this same approach in our legal analysis of Braswell’s claims.

                                                 -6-
                                       BRASWELL V. MEDINA

                                          Opinion of the Court



distress. Finally, his complaint contained claims against the City and the State of

North Carolina for violations of the North Carolina Constitution.

        On 6 April 2016, the State filed a motion to dismiss pursuant to Rules 12(b)(1)

and (6). The Rocky Mount Defendants filed a motion to dismiss on 15 April 2016

seeking dismissal of all of Braswell’s claims against them pursuant to Rule 12(b)(6).

Following a hearing before the Honorable Allen Baddour on 5 August 2016, the trial

court issued an order on 24 August 2016 dismissing this entire action pursuant to

Rule 12(b)(6). Braswell filed a timely notice of appeal.3

                                                   Analysis

        As an initial matter, we conclude that Braswell has abandoned any challenges

to the trial court’s dismissal of his claims against the Rocky Mount Defendants for

negligence, intentional infliction of emotional distress, and negligent infliction of

emotional distress because he failed to address the dismissal of these claims in his

principal brief on appeal. See N.C. R. App. P. 28(b)(6) (“Issues not presented in a

party’s brief, or in support of which no reason or argument is stated, will be taken as

abandoned.”).4



        3 Braswell has not appealed from the portion of the trial court’s order dismissing his claim
against the State of North Carolina.

        4 While Braswell’s reply brief does contain arguments relating to his intentional infliction of
emotional distress and negligence claims, this Court has made clear that “under Rule 28(b)(6) of the
North Carolina Rules of Appellate Procedure, where a party fails to assert a claim in its principal brief,
it abandons that issue and cannot revive the issue via reply brief.” Larsen v. Black Diamond French
Truffles, Inc., 241 N.C. App. 74, 79, 772 S.E.2d 93, 96 (2015).

                                                  -7-
                                BRASWELL V. MEDINA

                                  Opinion of the Court



      Accordingly, we consider only whether the trial court erred in dismissing

Braswell’s § 1983 claims; state law claims for malicious prosecution and obstruction

of justice; and claim under the North Carolina Constitution.

                    The standard of review of an order granting a Rule
             12(b)(6) motion is whether the complaint states a claim for
             which relief can be granted under some legal theory when
             the complaint is liberally construed and all the allegations
             included therein are taken as true. On appeal, we review
             the pleadings de novo to determine their legal sufficiency
             and to determine whether the trial court’s ruling on the
             motion to dismiss was correct.

Feltman, 238 N.C. App. at 251, 767 S.E.2d at 619 (citation omitted).

      “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.”

Podrebarac v. Horack, Talley, Pharr, & Lowndes, P.A., 231 N.C. App. 70, 74, 752

S.E.2d 661, 663 (2013) (citation omitted).

I. Claims Under 42 U.S.C. § 1983

      Section 1983 provides a private right of action against any person who, acting

under color of state law, causes the “deprivation of any rights, privileges, or

immunities secured by the Constitution . . . .” 42 U.S.C. § 1983. “A malicious

prosecution claim under § 1983 is properly understood as a Fourth Amendment claim

for unreasonable seizure which incorporates certain elements of the common law tort”


                                         -8-
                                BRASWELL V. MEDINA

                                  Opinion of the Court



of malicious prosecution. Evans v. Chalmers, 703 F.3d 636, 647 (4th Cir. 2012)

(citation and quotation marks omitted). In order to state a § 1983 claim premised

upon a malicious prosecution theory, “a plaintiff must allege that the defendant (1)

caused (2) a seizure of the plaintiff pursuant to legal process unsupported by probable

cause, and (3) criminal proceedings terminated in [the] plaintiff’s favor.” Id.

      It is undisputed that Braswell has pled facts in his complaint establishing that

he was seized pursuant to legal process and that the criminal proceedings terminated

in his favor. The Officers argue, however, that Braswell failed to state valid claims

under § 1983 because (1) probable cause existed to support his arrest; and (2) the

actions of the prosecutor and the grand jury in seeking and issuing the indictment

constituted a break in the causal chain such that the Officers cannot be deemed to

have caused an illegal seizure. We address each argument in turn.

      A. Probable Cause

      “Probable cause exists when the information known to the officer is sufficient

to warrant a prudent man in believing that the suspect had committed or was

committing an offense.” State v. Dickens, 346 N.C. 26, 36, 484 S.E.2d 553, 558 (1997)

(citation and quotation marks omitted). Here, Braswell has sufficiently alleged in his

complaint that the Officers lacked probable cause to believe he had committed the

crime of obtaining property by false pretenses. As reflected in the indictment, the

theory of criminal liability was that Braswell obtained $112,500 from the Greenes “by



                                         -9-
                                 BRASWELL V. MEDINA

                                      Opinion of the Court



means of a false pretense which was calculated to deceive and did deceive” and that

the false pretense was that he would provide the Greenes with “a six percent return

on all invested monies . . . when in fact [Braswell] did not invest the monies into

legitimate financial institutions.”

      In our decision vacating Braswell’s conviction, we held that “[a] careful review

of the record developed at trial reveals the complete absence of any support for this

allegation.” Braswell, 225 N.C. App. at 741, 738 S.E.2d at 234 (emphasis added).

Moreover, all that matters for purposes of applying the Rule 12(b)(6) standard is that

Braswell has alleged sufficient facts showing the absence of probable cause.

Specifically, he asserted the following in his complaint:

                    49. On 5 April 2010, Defendants Medina, Denton,
             and upon information and belief, Defendant Whitley,
             fabricated probable cause to mislead a Nash County grand
             jury into returning a bill of indictment charging [Braswell]
             with felony obtaining property by false pretenses. At the
             time they caused the indictment to issue, Medina, Denton,
             and Whitley knew they did not have probable cause to
             believe [Braswell] committed that or any other crime.

      In addition, the complaint alleged that

             [t]o conceal the absence of evidence of [Braswell]’s alleged
             false pretense or fraudulent intent, Officer Medina
             fabricated probable cause – by manufacturing false
             inculpatory evidence and concealing exculpatory evidence
             in order to mislead judicial officials into authorizing the
             arrest and pretrial detention of [Braswell], to mislead
             prosecutors to authorize a felony indictment for obtaining
             property in excess of $100,000 by false pretenses, to
             mislead the grand jury into issuing said indictment, and to


                                             - 10 -
                                       BRASWELL V. MEDINA

                                         Opinion of the Court



                mislead prosecutors into maintaining felony criminal
                proceedings against [Braswell] and ultimately convicting
                him.

        As demonstrated by these and other allegations in Braswell’s complaint, the

crux of his § 1983 claims is that evidence possessed by the Officers — including

records seized from Braswell’s home — actually exculpated rather than inculpated

Braswell by showing that he had, in fact, invested large sums of money into legitimate

financial institutions. In light of these allegations, we are satisfied that Braswell’s

complaint adequately alleged a lack of probable cause for his arrest and prosecution

on the charge of obtaining property by false pretenses. See, e.g., Simpson v. Sears,

Roebuck & Co., 231 N.C. App. 412, 417, 752 S.E.2d 508, 510 (2013) (reversing trial

court’s dismissal of plaintiff’s malicious prosecution claim because her “allegations,

which we are required to treat as true, [were] sufficient to withstand a motion to

dismiss.”); Enoch v. Inman, 164 N.C. App. 415, 419, 596 S.E.2d 361, 364 (2004)

(reversing trial court’s granting of motion to dismiss because the “allegations,

including the factual details summarized above, [were] sufficient to support a § 1983

claim . . . .”).5


        5 We likewise reject the Officers’ argument that the dismissal of Braswell’s claims was proper
on the theory that Braswell invested the Greenes’ funds “without a dealer’s license” in violation of N.C.
Gen. Stat. § 78A-36. Section 78A-36 makes it “unlawful for any person to transact business in this
State as a dealer or salesman unless he is registered under this Chapter.” N.C. Gen. Stat. § 78A-36(a)
(2015). N.C. Gen. Stat. § 78A-2 defines “dealer” as “any person engaged in the business of effecting
transactions in securities for the account of others or for his own account.” N.C. Gen. Stat. § 78A-2(2)
(2015). However, Braswell was not charged with violating N.C. Gen. Stat. § 78A-36. The issue of
whether Braswell failed to invest the Greenes’ money in legitimate financial institutions — which was



                                                 - 11 -
                                     BRASWELL V. MEDINA

                                       Opinion of the Court



       B. Causation

       The Officers next argue that Braswell failed to plead facts sufficient to satisfy

the causation prong of a § 1983 claim grounded in a theory of malicious prosecution.

They contend that the intervening decision by the district attorney to submit a bill of

indictment to the grand jury and the grand jury’s decision to issue an indictment

insulate the Officers from liability by interrupting the causal chain.

       It is true that “acts of independent decision-makers (e.g., prosecutors, grand

juries, and judges) may constitute intervening superseding causes that break the

causal chain between a defendant-officer’s misconduct and a plaintiff’s unlawful

seizure.” Evans, 703 F.3d at 647 (emphasis added). However, it is well established

that even once the prosecutor has submitted a bill of indictment to a grand jury and

the grand jury has indicted the defendant, “police officers may be held to have caused

the seizure and remain liable to a wrongfully indicted defendant under certain

circumstances.” Id.

               The intervening acts of a grand jury have never been
               enough to defeat an otherwise viable malicious prosecution
               claim, whether or not the grand jury votes a true bill or
               even returns an indictment ultimately determined to be
               deficient as a matter of law. And though an indictment by
               a grand jury is generally considered prima facie evidence
               of probable cause in a subsequent civil action for malicious
               prosecution, this presumption may be rebutted by proof
               that the defendant misrepresented, withheld, or falsified
               evidence.

the theory upon which the indictment was based — is separate and distinct from the issue of whether
Braswell was in compliance with N.C. Gen. Stat. § 78A-36.

                                              - 12 -
                                 BRASWELL V. MEDINA

                                   Opinion of the Court




                    ....

                    As with the grand jury, . . . the public prosecutor’s
             role in a criminal prosecution will not necessarily shield a
             complaining witness from subsequent civil liability where
             the witness’s testimony is knowingly and maliciously false.

White v. Frank, 855 F.2d 956, 961-62 (2d Cir. 1988) (internal citation and quotation

marks omitted and emphasis added); see also Evans, 703 F.3d at 647-48 (“[O]fficers

may be liable when they have lied to or misled the prosecutor; failed to disclose

exculpatory evidence to the prosecutor; or unduly pressured the prosecutor to seek

the indictment[.]” (internal citations and quotation marks omitted)); Hand v. Gary,

838 F.2d 1420, 1428 (5th Cir. 1988) (“An independent intermediary breaks the chain

of causation unless it can be shown that the deliberations of that intermediary were

in some way tainted by the actions of the defendant.”); Jones v. City of Chicago, 856

F.2d 985, 994 (7th Cir. 1988) (“[A] prosecutor’s decision to charge, a grand jury’s

decision to indict, a prosecutor’s decision not to drop charges but to proceed to trial —

none of these decisions will shield a police officer who deliberately supplied

misleading information that influenced the decision.”).

      Accordingly, in cases where law enforcement officers conceal or fabricate

evidence in order to falsely show that probable cause exists to prosecute a criminal

defendant, the intervening decision of the prosecutor or grand jury will not immunize

the officers from liability on a malicious prosecution claim under § 1983. As shown



                                          - 13 -
                                       BRASWELL V. MEDINA

                                         Opinion of the Court



above, Braswell’s complaint in the present case sufficiently pled facts in support of

such a theory.6

        C. Qualified Immunity

        We also reject the Officers’ assertion that dismissal of Braswell’s § 1983 claims

was appropriate pursuant to the qualified immunity doctrine.                        “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) (citation and quotation marks omitted).

        Braswell’s right to be free from a seizure and prosecution lacking in probable

cause and based upon the deliberate concealment or fabrication of evidence was

clearly established at the time of Braswell’s arrest, and a reasonable officer would

have been aware of that right. See Webb v. United States, 789 F.3d 647, 667 (6th Cir.

2015) (“It is well established that a person’s constitutional rights are violated when



        6 We are not persuaded by the Officers’ reliance on Massey v. Ojaniit, 759 F.3d 343 (4th Cir.
2014), in support of their argument that Braswell failed to allege sufficient details so as to establish
causation. In Massey, the plaintiff alleged that the defendant police officers fabricated information
that led to the plaintiff’s illegal arrest, prosecution, and conviction. Id. at 347. The Fourth Circuit
found the plaintiff’s allegations of causation to be lacking, however, because the record showed that
probable cause existed to arrest the plaintiff even after the piece of fabricated evidence was excluded
from consideration. See id. at 357 (explaining that “[t]hough [the plaintiff] alleges that [the officers]
deliberately supplied fabricated evidence, he has not pleaded facts adequate to undercut the grand
jury’s probable cause determination. That is, . . . even removing the fabricated statement . . . , there
still existed sufficient probable cause to arrest [the plaintiff].” (quotation marks and brackets
omitted)). In the present case, conversely, Braswell’s complaint alleged facts showing that his
prosecution was a direct result of the fabrication and concealment of evidence by the Officers.
Therefore, Massey is distinguishable on its face.

                                                 - 14 -
                                 BRASWELL V. MEDINA

                                   Opinion of the Court



evidence is knowingly fabricated and a reasonable likelihood exists that the false

evidence would have affected the decision of the jury. A reasonable police officer

would know that fabricating probable cause, thereby effectuating a seizure, would

violate a suspect’s clearly established Fourth Amendment right to be free from

unreasonable seizures.” (internal citation, quotation marks, and brackets omitted));

Wilkins v. DeReyes, 528 F.3d 790, 805 (10th Cir. 2008) (“[I]t of course has long been

clearly established that knowingly arresting a defendant without probable cause,

leading to the defendant’s subsequent confinement and prosecution, violates the

Fourth Amendment’s proscription against unreasonable searches and seizures.”).

      The cases that the Officers rely upon in their brief on this issue are clearly

inapposite as they involve determinations made at the summary judgment stage that

there was, in fact, probable cause to seize the plaintiffs. See, e.g., Durham v. Horner,

690 F.3d 183, 189 (4th Cir. 2012) (explaining that “the prosecution was plainly

supported by probable cause” and plaintiff failed to “put forward any evidence to show

that [the defendant officer] acted maliciously or conspired . . . to mislead the grand

jury”); Porterfield v. Lott, 156 F.3d 563, 570 (4th Cir. 1998) (“Since there were

sufficient indicia of probable cause to arrest [the plaintiff], as we have indicated

already, it follows that there were sufficient indicia of probable cause to seek a

warrant.”).

      Here, conversely, the facts alleged in the complaint — which we are required



                                          - 15 -
                                 BRASWELL V. MEDINA

                                   Opinion of the Court



to accept as true in this appeal — were that the Officers fabricated and concealed

evidence in order to bring about Braswell’s indictment despite the absence of probable

cause to believe he was guilty of the crime for which he was charged. Thus, the

Officers are not entitled to qualified immunity at this stage of the litigation.

                                          ***

      For these reasons, we conclude that Braswell has stated valid claims under 42

U.S.C. § 1983. The trial court’s dismissal of these claims therefore constituted error.

II. State Law Claims

      A. Malicious Prosecution

      In order to state a common law claim for malicious prosecution under North

Carolina law,

             the plaintiff must demonstrate that the defendant (1)
             instituted, procured or participated in the criminal
             proceeding against the plaintiff; (2) without probable
             cause; (3) with malice; and (4) the prior proceeding
             terminated in favor of the plaintiff.

Moore v. Evans, 124 N.C. App. 35, 42, 476 S.E.2d 415, 421 (1996) (citation, quotation

marks, and brackets omitted). “[A] grand jury’s action in returning an indictment is

only prima facie evidence of probable cause and . . . as a result, the return of an

indictment does not as a matter of law bar a later claim for malicious prosecution.”

Turner v. Thomas, 369 N.C. 419, 445, 794 S.E.2d 439, 445 (2016).




                                          - 16 -
                                BRASWELL V. MEDINA

                                  Opinion of the Court



      As shown above, Braswell’s complaint alleged facts showing that (1) the

Officers initiated or participated in the criminal proceeding against him; (2) they

lacked probable cause to believe he committed the offense of obtaining property by

false pretenses; (3) they acted with malice; and (4) the prosecution was terminated in

Braswell’s favor. “‘Malice’ in a malicious prosecution claim may be shown by offering

evidence that defendant was motivated by personal spite and a desire for revenge or

that defendant acted with reckless and wanton disregard for plaintiffs’ rights.” Lopp

v. Anderson, __ N.C. App. __, __, 795 S.E.2d 770, 780 (2016) (citation and quotation

marks omitted). Moreover, “[m]alice can be inferred from the want of probable cause

alone.” Id. at __, 795 S.E.2d at 779 (citation and quotation marks omitted).

      Here, Braswell has adequately alleged malice by pleading facts showing that

the Officers not only lacked probable cause to believe he was guilty of the crime for

which he was ultimately charged but also concealed and fabricated evidence in order

to cause him to be prosecuted for that offense. Accordingly, Braswell has properly

stated claims for malicious prosecution against the Rocky Mount Defendants under

North Carolina law, and the trial court erred in dismissing these claims.         See

Chidnese v. Chidnese, 210 N.C. App. 299, 310, 708 S.E.2d 725, 734 (2011) (“Treating

these allegations as true, these facts can be construed to state that [the defendant]

procured a criminal prosecution against plaintiff with malice and without probable




                                         - 17 -
                                 BRASWELL V. MEDINA

                                   Opinion of the Court



cause, and that the prosecution terminated favorably for the plaintiff, satisfying all

of the elements of malicious prosecution.” (citation omitted)).

      B. Obstruction of Justice

      Braswell next argues that the trial court improperly dismissed his claims for

obstruction of justice. We disagree.

      North Carolina’s appellate courts have recognized that “[a]t common law it is

an offense to do any act which prevents, obstructs, impedes or hinders public or legal

justice.” In re Kivett, 309 N.C. 635, 670, 309 S.E.2d 442, 462 (1983). This articulation

of common law obstruction of justice first appeared in North Carolina caselaw in our

Supreme Court’s Kivett decision. In that case, which concerned an appeal from a

judicial discipline proceeding, the Court held that the respondent judge’s attempt to

prevent a grand jury from convening in order to investigate suspected criminal

conduct on his part “would support a charge of common law obstruction of justice.”

Id.

      North Carolina is one of a small minority of jurisdictions that also recognizes

a civil cause of action for obstruction of justice. This tort was first recognized by our

Supreme Court in Henry v. Deen, 310 N.C. 75, 310 S.E.2d 326 (1984), a wrongful

death action brought by the administrator of the decedent’s estate alleging that his

medical providers had negligently rendered care to him. The plaintiff also asserted

that the defendants had created false entries in the decedent’s medical chart and



                                          - 18 -
                                      BRASWELL V. MEDINA

                                         Opinion of the Court



concealed his genuine medical records. Id. at 87, 310 S.E.2d at 334. These actions,

the plaintiff argued, rendered the defendants liable for civil conspiracy because their

actions were intended “to prevent the plaintiff from discovering the negligent acts of

the defendants . . . .” Id. at 79, 310 S.E.2d at 329-30.

       On appeal from the trial court’s dismissal of the plaintiff’s civil conspiracy

claim, the Supreme Court held that the plaintiff had properly alleged a claim for civil

conspiracy based upon the underlying wrongful act of obstruction of justice.7 Id. at

87, 310 S.E.2d at 334. The Court explained that the defendants’ alleged concealment

and fabrication of evidence, “if found to have occurred, would be acts which obstruct,

impede or hinder public or legal justice and would amount to the common law offense

of obstructing public justice.” Id.

       Our decision in Grant v. High Point Regional Health System, 184 N.C. App.

250, 645 S.E.2d 851 (2007), applied Henry in a similar context. In that case, the



       7 The Court explained that a civil conspiracy cause of action must be predicated upon an
underlying tort:

               In civil actions for recovery for injury caused by acts committed
               pursuant to a conspiracy, this Court has stated that the combination
               or conspiracy charged does no more than associate the defendants
               together and perhaps liberalize the rules of evidence to the extent that
               under the proper circumstances the acts of one may be admissible
               against all. The gravamen of the action is the resultant injury, and not
               the conspiracy itself. To create civil liability for conspiracy there must
               have been a wrongful act resulting in injury to another committed by
               one or more of the conspirators pursuant to the common scheme and in
               furtherance of the objective.

Henry, 310 N.C. at 86-87, 310 S.E.2d at 334 (internal citations omitted).

                                                - 19 -
                                 BRASWELL V. MEDINA

                                   Opinion of the Court



executrix of the decedent’s estate alleged that the defendant hospital was liable for

obstruction of justice for destroying the decedent’s medical records because that

action “effectively precluded [the plaintiff] from obtaining the required Rule 9(j)

certification . . . . and thus effectively precluded [the plaintiff] from being able to

successfully prosecute a medical malpractice action against [the defendant].” Id. at

255, 645 S.E.2d at 855 (quotation marks and ellipses omitted).

      We reversed the trial court’s dismissal of this claim, holding that “such acts by

[the defendant], if true, would be acts which obstruct, impede or hinder public or legal

justice and would amount to the common law offense of obstructing public justice.”

Id. at 255, 645 S.E.2d at 855 (citation and quotation marks omitted). In so holding,

we explicitly rejected the defendant’s argument that Henry was inapplicable on the

theory that the plaintiff’s claim in Henry had been based on civil conspiracy rather

than obstruction of justice. We explained that “in Henry, the wrongful acts necessary

to prove conspiracy were the acts constituting obstruction of justice. Accordingly, as

the acts constituting obstruction of justice underlying the civil conspiracy in Henry

were similar to [the defendant’s] alleged actions in the present case, Henry is

persuasive.” Id. (internal citation omitted).

      We also had occasion to consider a civil obstruction of justice claim in

Broughton v. McClatchy Newspapers, Inc., 161 N.C. App. 20, 588 S.E.2d 20 (2003).

The plaintiff in Broughton sued the News and Observer (“N&O”) and certain N&O



                                          - 20 -
                                 BRASWELL V. MEDINA

                                   Opinion of the Court



employees alleging, inter alia, that the defendants were liable for obstruction of

justice because they had published an article about the plaintiff’s ongoing divorce

proceeding with her husband. Id. at 22, 588 S.E.2d at 23-24. On appeal, we affirmed

the trial court’s entry of summary judgment in the defendants’ favor as to that claim

on the ground that the plaintiff “presented no evidence that her [divorce case] was in

some way judicially prevented, obstructed, impeded or hindered by the acts of

defendants. There is no evidence as to the disposition of that action or any showing

that the newspaper articles adversely impacted that case.” Id. at 33, 588 S.E.2d at

30.

      Burgess v. Busby, 142 N.C. App. 393, 544 S.E.2d 4 (2001), involved an

underlying medical malpractice lawsuit against two physicians in which the jury

found one of them liable. After that trial had concluded, the other physician sent a

letter to all of the doctors at the hospital where he worked in which he provided the

names and addresses of the jurors who had — as the letter stated — “found a doctor

guilty.” Id. at 397, 544 S.E.2d at 6. Several of those jurors proceeded to file a lawsuit

of their own alleging that the doctor’s act of sending the letter constituted obstruction

of justice. Id. at 398, 544 S.E.2d at 6.

      We reversed the trial court’s dismissal of this claim, explaining that the

plaintiffs’ “complaint sufficiently alleges a cause of action for common law obstruction

of justice in that it alleges (1) defendant alerted health care providers to the names



                                           - 21 -
                                  BRASWELL V. MEDINA

                                    Opinion of the Court



of the jurors in retaliation for their verdict; (2) this retaliation was designed to harass

plaintiffs; and (3) defendant’s conduct was meant to obstruct the administration of

justice in Rowan County.” Id. at 409, 544 S.E.2d at 13.

       Our decision in Blackburn v. Carbone, 208 N.C. App. 519, 703 S.E.2d 788

(2010), is particularly instructive in analyzing the scope of the obstruction of justice

tort in North Carolina. In that case, the plaintiff alleged that the defendant physician

was liable for obstruction of justice on the ground that he had prepared an inaccurate

medical report — which he subsequently failed to correct — for use in a lawsuit that

the plaintiff had brought against a third party relating to an automobile accident. Id.

at 520, 703 S.E.2d at 790. The plaintiff claimed that the physician’s act had forced

him to settle the lawsuit for an amount considerably less than the actual damages he

had incurred. Id. at 520, 703 S.E.2d at 791. The trial court entered summary

judgment against the plaintiff and dismissed his obstruction of justice claim. Id. at

521, 703 S.E.2d at 791.

       On appeal, we summarized the caselaw from our appellate courts recognizing

a civil claim for obstruction of justice as follows:

              In Henry and Grant, allegations that the defendants had
              destroyed certain medical records and created other false
              medical records for the purpose of defeating a medical
              negligence claim were held to be sufficient to state a claim
              for common law obstruction of justice. Henry, 310 N.C. at
              88, 310 S.E.2d at 334-35 (stating that, “where, as alleged
              here, a party deliberately destroys, alters or creates a false
              document to subvert an adverse party’s investigation of his


                                           - 22 -
                                     BRASWELL V. MEDINA

                                       Opinion of the Court



               right to seek a legal remedy, and injuries are pleaded and
               proven, a claim for the resulting increased costs of the
               investigation will lie”); Grant, 184 N.C. App. at 255-56, 645
               S.E.2d at 855 (stating that allegations that “Defendant
               destroyed the medical records of the decedent” so as to
               “effectively preclude Plaintiff from obtaining the required
               Rule 9(j) certification” and prevent “ ‘Plaintiff from being
               able to successfully prosecute a medical malpractice action
               against . . . Defendant . . . and others’ ” “stated a cause of
               action for common law obstruction of justice”). Similarly,
               this Court has held that “Plaintiff’s complaint sufficiently
               alleged a cause of action for common law obstruction of
               justice in that it alleges (1) defendant alerted health care
               providers to the names of the jurors who returned a verdict
               against another health care provider in a medical
               negligence case in retaliation for their verdict; (2) this
               retaliation was designed to harass plaintiffs; and (3)
               defendant’s conduct was meant to obstruct the
               administration of justice.” Burgess, 142 N.C. App. at 409,
               544 S.E.2d at 13. As a result, any action intentionally
               undertaken by the defendant for the purpose of
               obstructing, impeding, or hindering the plaintiff’s ability to
               seek and obtain a legal remedy will suffice to support a
               claim for common law obstruction of justice.

Id. at 526-27, 703 S.E.2d at 795 (brackets omitted and emphasis added).8

       In the present case, the Rocky Mount Defendants contend that no “court in

North Carolina ha[s] ever recognized a common-law obstruction of justice civil claim

based on a police officer’s actions in a criminal proceeding.” In his attempt to show

the viability of such a claim, Braswell relies primarily upon our decision in Jones v.




       8    We ultimately affirmed the dismissal of the plaintiff’s obstruction of justice claim in
Blackburn because, among other reasons, he had failed to show that the defendant acted intentionally
and “for the purpose of deliberately obstructing, impeding or hindering the prosecution of [the
plaintiff’s] automobile accident case.” Blackburn, 208 N.C. App. at 529, 703 S.E.2d at 796.

                                               - 23 -
                                 BRASWELL V. MEDINA

                                   Opinion of the Court



City of Durham, 183 N.C. App. 57, 643 S.E.2d 631 (2007). However, Jones is readily

distinguishable from the present case.

      In Jones, the plaintiff bought a lawsuit against a police officer alleging that he

had negligently struck her with his car while responding to an unrelated call for

assistance from another officer. Jones v. City of Durham, 168 N.C. App. 433, 435, 608

S.E.2d 387, 389, aff’d, 360 N.C. 81, 622 S.E.2d 596 (2005), opinion withdrawn and

superseded on reh’g and decision rescinded in part based upon dissenting opinion, 361

N.C. 144, 638 S.E.2d 202 (2006). Among the causes of action contained in her suit

against the officer was a claim for obstruction of justice based upon the officer’s

alleged destruction of dashboard camera footage of the accident. The trial court

granted partial summary judgment for the officer but did not dismiss the obstruction

of justice claim. Id. at 434, 608 S.E.2d at 388.

      In the plaintiff’s initial appeal to this Court, we determined that all of the

plaintiff’s claims should be dismissed. Id. at 443, 608 S.E.2d at 392. However, the

Supreme Court reversed our decision, and upon remand to this Court, we affirmed

the trial court’s denial of the defendant’s motion to dismiss the obstruction of justice

claim, explaining that “the evidence would allow a jury to conclude that a camera in

[the defendant’s] police car had made a videotape recording of the accident, and that

the videotape was subsequently misplaced or destroyed.” Jones, 183 N.C. App. at 59,

643 S.E.2d at 633.



                                          - 24 -
                                 BRASWELL V. MEDINA

                                   Opinion of the Court



      Jones is distinguishable from the present case in that it involved allegations

that the defendant officer had obstructed justice by destroying evidence related to a

civil negligence claim that the plaintiff had asserted against him. Id. Accordingly,

Jones fits squarely within the line of cases discussed above that allow a plaintiff to

sue under an obstruction of justice theory when the defendant has improperly

obstructed, impeded, or hindered a “plaintiff’s ability to seek and obtain a legal

remedy[.]” Blackburn, 208 N.C. App. at 527, 703 S.E.2d at 795.

      Here, conversely, Braswell seeks to hold the Officers civilly liable on an

obstruction of justice theory not for their obstruction of his ability to obtain a legal

remedy but rather solely for their actions taken in the course of his criminal

prosecution. While torts such as malicious prosecution and false arrest allow law

enforcement officers to be held liable for their wrongful acts while conducting a

criminal investigation, neither this Court nor our Supreme Court has ever enlarged

the scope of the obstruction of justice tort so as to encompass claims based on acts

occurring solely in the course of an officer’s criminal investigation that are unrelated

to a plaintiff’s ability to seek and obtain a legal remedy. On these facts, we conclude

that the trial court properly dismissed Braswell’s obstruction of justice claims.

      C. Claim Under North Carolina Constitution

      Finally, Braswell argues that the trial court erred in dismissing his claim

against the City alleging that his rights under the North Carolina Constitution were



                                          - 25 -
                                   BRASWELL V. MEDINA

                                    Opinion of the Court



violated by his arrest and prosecution. Our Supreme Court has explained that “in

the absence of an adequate state remedy, one whose state constitutional rights have

been abridged has a direct claim against the State under our Constitution.” Corum

v. University of North Carolina, 330 N.C. 761, 782, 413 S.E.2d 276, 289 (1992). “[A]n

adequate remedy must provide the possibility of relief under the circumstances.”

Craig v. New Hanover Cty. Bd. of Educ., 363 N.C. 334, 340, 678 S.E.2d 351, 355

(2009).

      The City argues that the dismissal of Braswell’s state constitutional claim was

proper because Braswell “made no allegation [for which] he does not have an

adequate state remedy.” This Court has held that where a defendant has raised

immunity defenses that have not yet been adjudicated — thus creating uncertainty

regarding whether a plaintiff will, in fact, have an adequate state remedy — dismissal

of the plaintiff’s state constitutional claim at the pleadings stage is premature.

      In Bigelow v. Town of Chapel Hill, 227 N.C. App. 1, 745 S.E.2d 316 (2013), we

addressed this issue as follows:

             As long as Defendants’ sovereign immunity defense
             remains potentially viable for any or all of Plaintiffs’
             wrongful discharge-related claims, . . . Plaintiffs’ associated
             North Carolina constitutional claims are not supplanted by
             those claims. This holding does not predetermine the
             likelihood that plaintiff will win other pretrial motions,
             defeat affirmative defenses, or ultimately succeed on the
             merits of his case. Rather, it simply ensures that an
             adequate remedy must provide the possibility of relief
             under the circumstances.


                                           - 26 -
                                 BRASWELL V. MEDINA

                                    Opinion of the Court




Id. at 15, 745 S.E.2d at 326 (citation and quotation marks omitted).

       Here, in the third affirmative defense contained in its answer, the City has

asserted governmental immunity as a bar to Braswell’s tort claims. The merits of

this immunity defense have not yet been resolved. If it is ultimately determined that

governmental immunity does shield the City from all of these claims, then Braswell

would not possess an adequate remedy under state law apart from his claim under

the North Carolina Constitution. See, e.g., Craig, 363 N.C. at 340, 678 S.E.2d at 355

(“Plaintiff’s common law cause of action for negligence does not provide an adequate

remedy at state law when governmental immunity stands as an absolute bar to such

a claim.”).

       Therefore, because it is not yet clear at this stage of the litigation whether

Braswell will have an adequate state law remedy, the dismissal of his state

constitutional claim against the City was premature. Accordingly, we reverse the

trial court’s dismissal of that claim.

                                         Conclusion

       For the reasons stated above, we affirm the trial court’s dismissal of Braswell’s

claims for obstruction of justice, negligence, intentional infliction of emotional

distress, and negligent infliction of emotional distress as well as his claim against the

State under the North Carolina Constitution. We reverse the trial court’s dismissal

of his § 1983 claims, common law malicious prosecution claims, and claim against the


                                            - 27 -
                                  BRASWELL V. MEDINA

                                   Opinion of the Court



City under the North Carolina Constitution. We remand for further proceedings not

inconsistent with this opinion.

      AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

      Judges HUNTER, JR. and MURPHY concur.




                                          - 28 -
