                IN THE COURT OF APPEALS OF NORTH CAROLINA

                                      No. COA17-130

                               Filed: 1 August 2017

Cumberland County, No. 16 CVS 3205

MARTIN LEONARD, Plaintiff,

               v.

RONALD BELL, M.D., Individually, PHILLIP STOVER, M.D., Individually,
Defendants.


      Appeal by defendants from order entered 25 October 2016 by Judge Tanya T.

Wallace in Cumberland County Superior Court. Heard in the Court of Appeals

7 June 2017.


      Knott & Boyle, PLLC, by W. Ellis Boyle and Benjamin Van Steinburgh, for
      plaintiff-appellee.

      Hedrick Gardner Kincheloe & Garofalo, LLP, by Joshua D. Neighbors, Luke
      Sbarra, and M. Duane Jones, for defendant-appellant Ronald Bell, M.D.

      Attorney General Joshua H. Stein, by Special Deputy Attorney General Charles
      G. Whitehead and Special Deputy Attorney General Amar Majmundar, for
      defendant-appellant Phillip Stover, M.D.


      ARROWOOD, Judge.


      Defendants Ronald Bell, M.D. (“Dr. Bell”), and Phillip Stover, M.D. (“Dr.

Stover”), appeal the denial of their motions to dismiss based on grounds of public

official immunity. For the following reasons, we affirm.

                                 I.       Background
                                  LEONARD V. BELL

                                  Opinion of the Court



      Martin Leonard (“plaintiff”) initiated this case against defendants in their

individual capacities with the filing of summonses and a complaint on 5 May 2016.

In the complaint, plaintiff asserts negligence claims against Dr. Bell and Dr. Stover,

both physicians employed by the Department of Public Safety (“DPS”), albeit in

different capacities. Those claims are based on allegations that Dr. Bell and Dr.

Stover failed to meet the requisite standard of care for physicians while treating

plaintiff, who at all relevant times was incarcerated in the Division of Adult

Correction (the “DAC”).

      Specifically, plaintiff alleges that he began experiencing severe back pain in

late October 2012 and submitted the first of many requests for medical care. Over

the next ten months, plaintiff was repeatedly evaluated in the DAC system by nurses,

physician assistants, and Dr. Bell in response to plaintiff’s complaints of increasing

back pain and other attendant symptoms. Dr. Bell personally evaluated plaintiff nine

times and, at the time of the seventh evaluation in June 2013, submitted a request

for an MRI to the Utilization Review Board (the “Review Board”). Dr. Stover, a

member of the Review Board, denied Dr. Bell’s request for an MRI and instead

recommended four weeks of physical therapy. Plaintiff continued to submit requests

for medical care as his condition worsened. Upon further evaluations by a nurse and

a physician assistant in August 2013, the physician assistant sent plaintiff to

Columbus Regional Health Emergency Department for treatment. Physicians at



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Columbus Regional performed an x-ray and an MRI. Those tests revealed plaintiff

was suffering from an erosion of bone in the L4 and L3 vertebra and a spinal infection.

Plaintiff asserts Dr. Bell’s failure to adequately evaluate and treat his condition, and

Dr. Stover’s refusal of requested treatment, amounts to medical malpractice.

      In response to the complaint, Dr. Bell filed a motion to dismiss pursuant to

Rule 12(b)(6) on 13 July 2016. Among the grounds asserted for dismissal, Dr. Bell

claimed he was entitled to “public official immunity for all acts and omissions alleged

against him[.]” Likewise, on 19 July 2016, Dr. Stover filed a motion to dismiss

pursuant to Rule 12(b)(1), (2), and (6). Defendants’ motions were heard during the

3 October 2016 session of Cumberland County Superior Court before the Honorable

Tanya T. Wallace. On 25 October 2016, the court denied defendants’ motions to

dismiss.

      Dr. Stover filed notice of appeal from the 25 October 2016 order on

18 November 2016. Dr. Bell filed notice of appeal from the 25 October 2016 order on

21 November 2016.

                                   II.    Discussion

      On appeal, both Dr. Bell and Dr. Stover contend the trial court erred in denying

their motions to dismiss. Specifically, Dr. Bell argues the trial court erred in denying

his Rule 12(b)(6) motion for failure to state a claim because he is entitled to public

official immunity. Dr. Stover similarly argues the trial court erred in denying his



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                                   Opinion of the Court



Rule 12(b)(2) and (6) motions for lack of personal jurisdiction and failure to state a

claim because he is entitled to public official immunity.

                        A.     Interlocutory Nature of Appeals

      At the outset, we note that defendants’ appeals are interlocutory because the

trial court’s denial of their motions to dismiss did not dispose of the case. See Veazey

v. City of Durham, 231 N.C. 357, 362, 57 S.E.2d 377, 381 (1950) (“An interlocutory

order is one made during the pendency of an action, which does not dispose of the

case, but leaves it for further action by the trial court in order to settle and determine

the entire controversy.”). “Generally, there is no right of immediate appeal from

interlocutory orders and judgments.” Goldston v. Am. Motors Corp., 326 N.C. 723,

725, 392 S.E.2d 735, 736 (1990). Immediate appeal is available, however, from an

interlocutory order that affects a substantial right. N.C. Gen. Stat. §§ 1-277(a) (2015)

and 7A-27(b)(3)(a) (2015).    “Orders denying dispositive motions based on public

official’s immunity affect a substantial right and are immediately appealable.”

Summey v. Barker, 142 N.C. App. 688, 689, 544 S.E.2d 262, 264 (2001); see also Can

Am South, LLC v. State, 234 N.C. App. 119, 122, 759 S.E.2d 304, 307 (acknowledging

the longstanding rule that the denial of a motion to dismiss based on immunity

pursuant to Rule 12(b)(6) affects a substantial right and is immediately appealable

under N.C. Gen. Stat. § 1-277(a)), disc. review denied, 367 N.C. 791, 766 S.E.2d 624

(2014). “A substantial right is affected because ‘[a] valid claim of immunity is more



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                                     Opinion of the Court



than a defense in a lawsuit; it is in essence immunity from suit. Were the case to be

erroneously permitted to proceed to trial, immunity would be effectively lost.’ ”

Farrell v. Transylvania Cnty. Bd. of Educ., 175 N.C. App. 689, 694, 625 S.E.2d 128,

133 (2006) (quoting Slade v. Vernon, 110 N.C. App. 422, 425, 429 S.E.2d 744, 746

(1993), implied overruling based on other grounds, Boyd v. Robeson County, 169 N.C.

App. 460, 621 S.E.2d 1 (2005)). Consequently, we address defendants’ interlocutory

appeals from the denials of their Rule 12(b)(6) motions to dismiss.

       Immediate appeal is also available from an adverse ruling as to personal

jurisdiction.    N.C. Gen. Stat. § 1-277(b).      This Court has consistently held that

immunity presents a question of personal jurisdiction and, therefore, denial of a Rule

12(b)(2) motion premised on immunity is immediately appealable under N.C. Gen.

Stat. § 1-277(b). Can Am South, 234 N.C. App. at 124, 759 S.E.2d at 308. Thus,

review of Dr. Stover’s interlocutory appeal is proper on this additional ground.

                                B.     Standard of Review

       The standard of review for an appeal from a denial of a Rule 12(b)(6) motion is

well settled.

                The motion to dismiss under [Rule] 12(b)(6) tests the legal
                sufficiency of the complaint. In ruling on the motion the
                allegations of the complaint must be viewed as admitted,
                and on that basis the court must determine as a matter of
                law whether the allegations state a claim for which relief
                may be granted.




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                                   Opinion of the Court



Stanback v. Stanback, 297 N.C. 181, 185, 254 S.E.2d 611, 615 (1979) (citations

omitted). “This Court must conduct a de novo review of the pleadings to determine

their legal sufficiency and to determine whether the trial court’s ruling on the motion

to dismiss was correct.” Leary v. N.C. Forest Prods., Inc., 157 N.C. App. 396, 400, 580

S.E.2d 1, 4, aff’d per curiam, 357 N.C. 567, 597 S.E.2d 673 (2003).

      When this Court reviews the denial of a Rule 12(b)(2) motion to dismiss for

lack of personal jurisdiction, “[w]e must review the record to determine whether there

is evidence to support the trial court’s determination that exercising its jurisdiction

would be appropriate.” Martinez v. Univ. of North Carolina, 223 N.C. App. 428, 430-

31, 741 S.E.2d 330, 332 (2012).

                           C.     Public Official Immunity

      Each defendant contends the trial court erred in denying his motion to dismiss

because each defendant is entitled to public official immunity.          “Public official

immunity precludes suits against public officials in their individual capacities and

protects them from liability ‘[a]s long as a public officer lawfully exercises the

judgment and discretion with which he is invested by virtue of his office, keeps within

the scope of his official authority, and acts without malice or corruption[.]’ ” Fullwood

v. Barnes, __ N.C. App. __, __, 792 S.E.2d 545, 550 (2016) (quoting Smith v. State, 289

N.C. 303, 331, 222 S.E.2d 412, 430 (1976) (citation omitted)). Our Supreme Court

has explained that “[p]ublic officials receive immunity because it would be difficult to



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                                   Opinion of the Court



find those who would accept public office or engage in the administration of public

affairs if they were to be personally liable for acts or omissions involved in exercising

their discretion.” Isenhour v. Hutto, 350 N.C. 601, 610, 517 S.E.2d 121, 127 (1999)

(citations and quotation marks omitted).

      In the present case, all parties agree that there were no allegations that

defendants acted outside the scope of their authority or that defendants acted with

malice or corruption. The sole question on appeal is whether defendants qualify as

public officials entitled to immunity from suit in their individual capacities.

      “Under the doctrine of public official immunity, ‘[w]hen a governmental worker

is sued individually, or in his or her personal capacity, our courts distinguish between

public employees and public officials in determining negligence liability.’ ” Farrell,

175 N.C. App. at 695, 625 S.E.2d at 133 (quoting Hare v. Butler, 99 N.C. App. 693,

699-700, 394 S.E.2d 231, 236 (1990) (citations omitted)).

             It is settled in this jurisdiction that a public official,
             engaged in the performance of governmental duties
             involving the exercise of judgment and discretion, may not
             be held personally liable for mere negligence in respect
             thereto. An employee, on the other hand, is personally
             liable for negligence in the performance of his or her duties
             proximately causing an injury.

Isenhour, 350 N.C. at 609-10, 517 S.E.2d at 127 (citations and quotation marks

omitted).

             In distinguishing between a public official and a public
             employee, our courts have held that (1) a public office is a
             position created by the constitution or statutes; (2) a public

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                                    Opinion of the Court



              official exercises a portion of the sovereign power; and (3) a
              public official exercises discretion, while public employees
              perform ministerial duties. Additionally, an officer is
              generally required to take an oath of office while an agent
              or employee is not required to do so.

Fraley v. Griffin, 217 N.C. App. 624, 627, 720 S.E.2d 694, 696 (2011) (Murray v. Cnty.

of Person, 191 N.C. App. 575, 579-80, 664 S.E.2d 58, 61 (2008) (internal quotations

and citations omitted)); see also Isenhour, 350 N.C. at 610, 517 S.E.2d at 127

(recognizing the same “basic distinctions between a public official and a public

employee”).

       Defendants each maintain that they have been delegated and carry out the

DAC’s constitutional and statutory duty to provide health services to inmates. They

further maintain that they exercise a portion of the sovereign power and substantial

discretion in fulfilling that duty. Thus, defendants argue that they are public officials

and not public employees. We disagree.

       Defendants fail to point to any constitutional or statutory provisions creating

their respective positions; and we have found no such authority. Instead, defendants

contend they satisfy the first prong in the public official analysis because they have

been delegated the DAC’s duty to provide health services to inmates.

       This Court has stated that “[a] position is considered ‘created by statute’ when

‘the officer’s position ha[s] a clear statutory basis or the officer ha[s] been delegated a

statutory duty by a person or organization created by statute’ or the Constitution.”

Baker v. Smith, 224 N.C. App. 423, 428, 737 S.E.2d 144, 148 (2012) (emphasis in

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                                   Opinion of the Court



original) (quoting Fraley, 217 N.C. App. at 627, 720 S.E.2d at 696 (citation and

quotation marks omitted)). Thus, in Baker, this Court concluded that the position of

assistant jailer was “created by statute” for purposes of public official immunity even

though there was not an explicit statutory basis for the position. Id. at 428-30, 737

S.E.2d at 148-49. The Court reasoned that,

             N.C. Gen. Stat. § 162-22 establishes that sheriffs have the
             duty to operate the jail and the power to “appoint[] the
             keeper thereof.” N.C. Gen. Stat. § 162-22 (2011). . . .

             Regardless of whether we read § 162-22 to include
             assistant jailers, that statute establishes the duty of the
             sheriff to operate the jail. N.C. Gen. Stat. § 162-24 permits
             a sheriff to “appoint a deputy or employ others to assist him
             in performing his official duties.” N.C. Gen. Stat. § 162-24
             (2011) (emphasis added). Read together with § 162-22, it
             is clear that the legislature intended to permit the sheriff
             to “employ others”—plural—to help perform his official
             duties, including his duty to take “care and custody of the
             jail.” N.C. Gen. Stat. § 162-22.

             That statutory duty defines the role of an assistant jailer.
             Assistant jailers are “charged with the care, custody, and
             maintenance of prisoners.” State v. Shepherd, 156 N.C.
             App. 603, 607, 577 S.E.2d 341, 344 (2003). The same article
             that vests the sheriff and chief jailer with their powers also
             vests them with the authority to appoint subordinates,
             such as assistant jailers. See N.C. Gen. Stat. § 162-24. Our
             legislature, in a different article, described detention
             officers, i.e. jailers, as “[a] person, who through the special
             trust and confidence of the sheriff, has been appointed as a
             detention officer by the sheriff.” N.C. Gen. Stat. § 17E-2
             (2011). Indeed, the jail cannot operate without “custodial
             personnel” to “supervise” and “maintain safe custody and
             control” of the prisoners. N.C. Gen. Stat. § 153-224(a)
             (2011) (“No person may be confined in a local confinement


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                                   Opinion of the Court



             facility unless custodial personnel are present and
             available to provide continuous supervision in order that
             custody will be secure . . .”) Thus, assistant jailers are
             delegated the statutory duty to take care of the jail and the
             detainees therein by the sheriff-a position created by our
             Constitution. N.C. Const. art. VII, § 2.

Id. at 429-30, 737 S.E.2d at 148-49 (footnote omitted) (emphasis added). Other cases

have similarly held that positions with no explicit statutory basis are nonetheless

“created by statute” when there is statutory authorization for the delegation of a duty.

See, e.g., Cherry v. Harris, 110 N.C. App. 478, 480-81, 429 S.E.2d 771, 772-73 (1993)

(a forensic pathologist who conducted an autopsy and prepared reports in response to

an official request by a county medical examiner satisfied the first element of the

public official analysis because the medical examiner, a position created by statute,

had the statutory authority pursuant to N.C. Gen. Stat. § 130A-389(a) to order that

an autopsy be performed by a competent pathologist designated by the Chief Medical

Examiner, and the forensic pathologist had been so designated).

      Defendants rely on Baker and contend the result in the present case should be

no different because the DAC is statutorily created and they have been delegated the

DAC’s constitutional and statutory duty to provide health services to inmates.

      Defendants correctly point out that the DAC is statutorily created.          The

relevant statute provides that “[t]here is hereby created and established a division to

be known as the Division of Adult Correction of the Department of Public Safety with

the organization, powers, and duties hereafter defined in the Executive Organization


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                                   Opinion of the Court



Act of 1973.” N.C. Gen. Stat. § 143B-700 (2015). The immediately following statute

adds that “[i]t shall be the duty of the [DAC] to provide the necessary custody,

supervision, and treatment to control and rehabilitate criminal offenders . . . .” N.C.

Gen. Stat. § 143B-701 (2015). Defendants also correctly point out that the duties of

the DAC include the duty to provide health services to inmates. Specifically, our

general statutes provide that “[t]he general policies, rules and regulations of the

[DAC] shall prescribe standards for health services to prisoners, which shall include

preventive, diagnostic, and therapeutic measures on both an outpatient and a

hospital basis, for all types of patients.” N.C. Gen. Stat. § 148-19(a) (2015). The duty

to provide health services to inmates also has a constitutional basis, as recognized in

West v. Atkins, 487 U.S. 42, 54-55, 101 L. Ed. 2d 40, 53 (1988) (explaining that “the

State has a constitutional obligation, under the Eight Amendment, to provide

adequate medical care to those whom it has incarcerated[]” because “[i]t is only those

physicians authorized by the State to whom [an] inmate may turn[]”), and Medley v.

N.C. Dep’t of Correction, 330 N.C. 837, 842, 412 S.E.2d 654, 658 (1992) (citing West

while acknowledging that “[i]n addition to common-law and statutory duties to

provide adequate medical care for inmates, the state also bears this responsibility

under our state Constitution and the federal Constitution[]”).

      West and Medley are only relevant in this case to establish that the DAC has a

duty to provide health services to inmates. Otherwise, both cases hold that the State



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                                   Opinion of the Court



cannot escape liability by delegating that constitutional duty. In West, the Supreme

Court explained that a physician who is under contract with the State to provide

medical services to inmates acts “under color of state law” while providing those

services for purposes of asserting an action under 42 U.S.C. § 1983. West, 487 U.S.

at 54, 101 L. Ed. 2d at 53. Thus, the physician’s “conduct is fairly attributable to the

State.” Id. In Medley, the Court explained “that the duty to provide adequate medical

care to inmates, imposed by the state and federal Constitutions, and recognized in

state statute and caselaw, is such a fundamental and paramount obligation of the

state that the state cannot absolve itself of responsibility by delegating it to another.”

Medley, 330 N.C. at 844, 412 S.E.2d at 659. Thus, the North Carolina Department of

Correction could not avoid liability by contracting a physician to fulfill its duty

because the physician “is as a matter of law an agent for purposes of applying the

doctrine of respondeat superior.” Id. at 845, 412 S.E.2d at 659. However, neither

West nor Medley stands for the proposition that a physician fulfilling the DAC’s duty

to provide health services to inmates was immune from suit in their individual

capacity. Any argument that defendants cannot be sued in their individual capacities

based on the holdings of West or Medley is erroneous and misplaced.

      Based on the above, we agree with defendants that the DAC is statutorily

created and that the DAC has a duty to provide health services to inmates. We,

however, find the present case distinguishable from Baker and other cases that hold



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                                   Opinion of the Court



a position is created by statute when there has been a delegation of a statutory duty

by a person or organization created by statute or the constitution. In each of those

cases, the Court points directly to a statute that authorizes a constitutionally or

statutorily created person or organization to delegate its statutory duty to another

individual. In Baker, that statute was N.C. Gen. Stat. § 162-24, which “permits a

sheriff to ‘appoint a deputy or employ others to assist him in performing his official

duties.’ ” 224 N.C. App. at 429, 737 S.E.2d at 148 (quoting N.C. Gen. Stat. § 162-24)

(emphasis omitted). In Cherry, that statute is N.C. Gen. Stat. § 130A-389(a), which

allows a county medical examiner to order an autopsy to be performed by a

pathologist. 110 N.C. App. at 481, 429 S.E.2d at 773. Even in Chastain v. Arndt, __

N.C. App. __, __ S.E.2d __ (18 April 2017) (COA 16-1151) (holding a Basic Law

Enforcement Training (“BLET”) firearms instructor was a public official entitled to

immunity), a recent decision that both defendants cite in reply to plaintiff’s

arguments, this Court, in support of its finding that “[the defendant], in his role as a

BLET firearms instructor, was delegated a statutory duty by a person or organization

created by statute[,]” points to statutory authority that establishes the North

Carolina Criminal Justice Education and Training Standards Commission (the

“Commission”) and shows that its duty to train officers is to be delegated to

instructors. Id. at __, __ S.Ed.2d at __. As this Court summarized in Chastain, those

provisions involving instructors provide as follows:



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                                  Opinion of the Court



             The Commission . . . has the authority to “[e]stablish
             minimum standards for the certification of criminal justice
             training schools and programs or courses of instruction
             that are required by [Chapter 17C],” and “[e]stablish
             minimum standards and levels of education and experience
             for all criminal justice instructors[.]” N.C. Gen. Stat. §
             17C-6(a)(4) and (a)(6). The Commission may “[c]ertify and
             recertify, suspend, revoke, or deny . . . criminal justice
             instructors and school directors who participate in
             programs or courses of instruction that are required by
             [Chapter 17C].” N.C. Gen. Stat. § 17C-6 (7).

Id.

      In the present case, defendants contend the DAC has delegated to them its

duty to provide health services to inmates. Yet, defendants fail to point to any

statutory provisions similar to those in Baker, Cherry, or Chastain contemplating the

delegation of the DAC’s duty, or contemplating that the DAC will hire its own

physicians. Instead, defendants cite the following portions of N.C. Gen. Stat. § 148-

19:

             (a) . . . The [DAC] shall seek the cooperation of public and
                 private agencies, institutions, officials and individuals
                 in the development of adequate health services to
                 prisoners.

             ....

             (c) Each prisoner committed to the [DAC] shall receive a
                 physical and mental examination by a health care
                 professional authorized by the North Carolina Medical
                 Board to perform such examinations as soon as
                 practicable after admission and before being assigned
                 to work. . . .



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Neither of those portions of N.C. Gen. Stat. § 148-19, however, indicate that the

legislature intended for DAC to hire its own physicians.        The cited portion of

subsection (a) is broad and shows only that the legislature left it to DAC to develop

adequate health services; it does not provide any indication how health services

would be provided. Subsection (c) is similarly broad, requiring an initial evaluation

by an authorized health care professional, but no further indication as to how the

DAC was to provide that health care professional. There are many ways the DAC

could fulfill its duty to provide health services to inmates. In fact, subsection (b)

contemplates that the Secretary of Public Safety may request personnel employed by

the Department of Health and Human Services or other State agencies to be detailed

to the DAC for purposes of providing health services. N.C. Gen. Stat. § 148-19(b).

DPS’s decision to employ its own physicians appears to be a policy decision.

      In deciding defendants are not public officials entitled to immunity, we find

additional guidance in this Court’s decision in Farrell v. Transylvania Cnty. Bd. Of

Educ., 199 N.C. App. 173, 682 S.E.2d 224 (2009). In Farrell, the Court addressed

whether a special needs teacher in the public school system was entitled to public

official immunity from claims related to the physical and emotional abuse of the

plaintiffs’ son. Id. at 174, 682 S.E.2d at 226. In concluding that the teacher was not

a public official, the Court distinguished the teacher’s case from Kitchin v. Halifax

Cnty., 192 N.C. App. 559, 665 S.E.2d 760 (2008), disc. rev. denied., 363 N.C. 127, 673



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S.E.2d 135 (2009) (holding that an animal control officer was a public official because

the position is created by statute), Hobbs v. N.C. Dep’t of Human Res., 135 N.C. App.

412, 520 S.E.2d 595 (1999) (holding that department of social services staff members

who were acting for and representing the director of social services were public

officials because the director, a public official, had the statutory authority to delegate

to staff members authority to act as his representative), and Price v. Davis, 132 N.C.

App. 556, 512 S.E.2d 783 (1999) (without discussing the Isenhour criteria, holding

that a correctional sergeant and an assistant superintendent at a correctional facility

were public officials), stating that “the party being sued [in those cases] was either

employed in a position created by statute, or delegated a statutory duty by a person

or organization created by statute.” Farrell, 199 N.C. App. at 179, 682 S.E.2d at 229.

In contrast, the Court in Farrell noted that although N.C. Gen. Stat. § 115C-307

defines the duties of teachers and N.C. Gen. Stat. § 115C-325 governs the system of

employment for public school teachers, neither of those statutes create the position

of teacher. Id. at 177, 682 S.Ed.2d at 228. Thus, despite the explicit constitutional

guarantee of the right to a free public education, see Leandro v. State, 346 N.C. 336,

488 S.E.2d 249 (1997), the State’s constitutional duty to guard and maintain that

right, see N.C. Const. art. 1, § 15, and statutes providing for the hiring of teachers,

defining the duties of teaches, and governing the system of employment for teaches,




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see N.C. Gen. Stat. §§ 115C-299, -307, and -325, teachers that are employed to fulfill

the State’s duty are not public officials entitled to immunity.

      Similarly, although defendants are employed by DPS to help fulfill the State’s

duty to provide health services to inmates, DPS’s decision to employ its own

physicians in the DAC does not mean that those physicians hold positions created by

statute to be considered a public official. To hold otherwise would open the flood gates

so that any physician providing health services to an inmate in the DAC, whether or

not the physician was directly employed by DPS, or any DPS employees providing

services relating to the care and wellbeing of inmates for that matter, even those

providing the food services, would be considered to hold positions created by statute

so as to satisfy the first prong of the public official analysis. We reject such an

analysis that vastly expands the scope of public official immunity to those employees.

Although Dr. Bell and Dr. Stover were both physicians employed by DPS to provide

health services to inmates in the DAC, their positions were not created by statute.

Therefore, like the teacher in Farrell, they are not public officials for purposes of

public official immunity.

      Regarding the second and third prongs in the public official analysis,

defendants contend that because they fulfill the DAC’s duty to provide health services

to inmates, their jobs necessarily involve the power of the sovereign and the exercise

of discretion. Because we hold that defendants’ positions are not created by statute,



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we need not address the remaining elements to reach the conclusion that defendants

are not public officials entitled to immunity. We, however, take this opportunity to

note that there is nothing uniquely sovereign about the health services provided by

defendants to plaintiff in this case, except that plaintiff was an inmate in the DAC.

Furthermore, all physicians exercise discretion in the evaluation and treatment of

patients. The discretion exercised by defendants in providing health services to

plaintiff in this case is no different than the discretion exercised by physicians

treating patients outside of the DAC system.

      Finally, while not dispositive to our analysis, we note that neither of these

defendants took an oath of office as is often required to be considered a public official.

See Baker, 224 N.C. App. at 433, 737 S.E.2d at 151.

                                   III.   Conclusion

      For the foregoing reasons, we affirm the trial court’s decision to deny

defendants’ motions to dismiss based on assertions of public official immunity.

      AFFIRMED.

      Judges ELMORE and DIETZ concur.




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