               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA18-109

                                 Filed: 2 April 2019

Wake County, Nos. 16 CVS 15483, 17 CVS 3821

JANE DOE, Plaintiff,

              v.

WAKE COUNTY, ET AL., Defendants.


        Appeal by Plaintiff from judgment entered 14 July 2017 by Judge R. Allen

Baddour in Wake County Superior Court. Heard in the Court of Appeals 5 September

2018.


        John Locke Milholland IV, Attorney at Law PLLC, by J. Locke Milholland IV,
        for plaintiff-appellant.

        Deputy County Attorney Roger A. Askew, Senior Assistant County Attorney
        Mary Boyce Wells and Assistant County Attorney Brian K. Kettmer, for
        defendants-appellees Wake County, et al.


        MURPHY, Judge.


        Plaintiff, Jane Doe, brought claims against Wake County, Wake County

Health Services (“WCHS”), and a number of individual WCHS employees for failing

to take action to protect her from a dangerous and abusive household. The Wake

County Superior Court dismissed all of Plaintiff’s claims under North Carolina Rules

of Civil Procedure 12(b)(1), (4), (5), (6), the statute of limitations, and the prior

pending action doctrine. After careful review, we affirm the trial court’s dismissal of

Plaintiff’s claims.
                                  DOE V. WAKE COUNTY, ET AL.

                                         Opinion of the Court



                                         BACKGROUND

        Plaintiff was born in Wake County in 1996 to a mother who had previously

been reported to WCHS for neglecting her first-born child. At birth, Plaintiff tested

positive for cocaine, and her mother admitted to using cocaine during her pregnancy.

Throughout Plaintiff’s youth, WCHS received and investigated at least eight reports

indicating her household was a potentially dangerous environment for a child. WCHS

investigated the reports and, at various times, referred Plaintiff’s mother for

counseling, examined Plaintiff for signs of abuse, and provided in-home services to

Plaintiff’s family.1

        Plaintiff sued WCHS and its employees—identified as “John Doe 1, John Doe

2, . . . John Doe N”—in tort and under 42 U.S.C. § 1983 for failing to remove her from

the care of her mother at eight different points in time. In response, Defendants

asserted a number of affirmative defenses and moved to dismiss the complaint on

various grounds. Plaintiff moved for leave to amend her complaint to add parties and

three days later filed a second complaint, which named Wake County, WCHS, and a

number of WCHS employees in both their individual and official capacities.

Defendants moved to dismiss this second complaint on the same grounds as the first

and also raised the prior pending action doctrine. The trial court dismissed both of



        1 In resolving this appeal, which is comprised solely of procedural issues, we need not describe
the specifics of each incident but nevertheless note that the facts of Plaintiff’s complaint paint the
picture of a tragic and frightening childhood.

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Plaintiff’s complaints and denied her motion for leave to amend as futile. Plaintiff

appeals.

                                      ANALYSIS

      “We review a trial court’s decision to dismiss a complaint de novo.” Robert K.

Ward Living Trust ex rel. Schulz v. Peck, 229 N.C. App. 550, 552, 748 S.E.2d 606, 608

(2013). “Under a de novo review, the court considers the matter anew and freely

substitutes its own judgment for that of the lower tribunal.” Craig v. New Hanover

Cnty. Bd. of Educ., 363 N.C. 334, 337, 678 S.E.2d 351, 354 (2009) (internal quotations

omitted). The trial court dismissed Plaintiff’s claims “pursuant to North Carolina

Rules of Civil Procedure 12(b)(1), [(4), (5), and (6)], the statute of limitations, and the

prior pending action doctrine,” but did not delineate which claims were being

dismissed on which grounds.        Nevertheless, we affirm both of the trial court’s

dismissal orders.

                                    A. 16 CVS 15483
      In her first complaint, Plaintiff alleged forty causes of action: thirty-two tort

claims against Wake County, WCHS, and their employees (both in their official and

individual capacities), and eight claims under 42 U.S.C. § 1983 alleging constitutional

violations. Additionally, Plaintiff moved to amend her complaint and the trial court

denied her motion. In subsections 1 and 2 below, we address Plaintiff’s tort claims.

In subsections 3 and 4, we analyze her federal claims and motion to amend,

respectively. In all four subsections, we affirm the trial court’s decisions.

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                                   Opinion of the Court



1. Tort Claims against Wake County, WCHS, and Employees in their
Official Capacity
      Plaintiffs bringing claims otherwise barred by governmental immunity must

allege a waiver of immunity in their complaint for the trial court to have subject

matter jurisdiction over those claims. M Series Rebuild, LLC v. Town of Mount

Pleasant, 222 N.C. App. 59, 62-63, 730 S.E.2d 254, 257 (2012). “[A] county normally

would be immune from liability for injuries caused by negligent social services

employees working in the course of their duties.” Estate of Earley v. Haywood Cnty.

Dep’t of Soc. Servs., 204 N.C. App. 338, 340, 694 S.E.2d 405, 408 (2010). Here,

Plaintiff “agrees that [her] claims in tort cannot proceed against the County and

defendants in their official capacity[,]” but argues “[a]ll tort claims against defendants

in their individual capacity should proceed.”

      Plaintiff correctly recognizes her failure to allege that Wake County waived

immunity is fatal to her complaint to the extent it asserts tort claims against the

county and its officials. Clark v. Burke Cnty., 117 N.C. App. 85, 88, 450 S.E.2d 747,

748 (1994) (“When suing a county or its officers, agents or employees, the complainant

must allege [a] waiver in order to recover.”). The trial court was correct to dismiss all

thirty-two of Plaintiff’s tort claims against Wake County and WCHS, and those

against individual Defendants in their official capacities.

2. “Individual Capacity” Tort Claims




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                                     Opinion of the Court



         We next address Plaintiff’s tort claims against county employees in their

individual capacities. See Wright v. Gaston Cty., 205 N.C. App. 600, 602, 698 S.E.2d

83, 86 (2010) (“Plaintiff’s complaint also alleges claims against the [defendants] in

their individual capacities, for which governmental immunity is not applicable.”).

The individual Defendants argue they are entitled to dismissal based upon public

official immunity because Plaintiff’s claims against them in their individual

capacities fail “to sufficiently ‘pierce the cloak’ of public official [immunity] . . . .” We

agree.

         “Public official immunity is a derivative form of governmental immunity.”

Wilcox v. City of Asheville, 222 N.C. App. 285, 288, 730 S.E.2d 226, 230 (2012)

(internal citations omitted). The doctrine distinguishes between public officials, who

are entitled to immunity, and public employees, who are not. Id. Social workers are

generally considered public officials, or state employees who exercise some amount of

sovereign power through acts “requiring personal deliberation, decision and

judgment.” Hobbs v. N.C. Dep't of Human Res., 135 N.C. App. 412, 421, 520 S.E.2d

595, 602 (1999); Meyer v. Walls, 347 N.C. 97, 113-14, 489 S.E.2d 880, 889 (1997).

         To rebut a claim of public official immunity and hold a public official liable in

her individual capacity, a plaintiff’s complaint must allege “that [the official’s] act, or

failure to act, was corrupt or malicious, or that [the official] acted outside of and

beyond the scope of his duties.” Hobbs, 135 N.C. App. at 422, 520 S.E.2d at 603.



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Additionally, our Supreme Court has noted, “a conclusory allegation that a public

official acted willfully and wantonly should not be sufficient, by itself, to withstand a

Rule 12(b)(6) motion to dismiss. The facts alleged in the complaint must support such

a conclusion.” Meyer, 347 N.C. at 114, 489 S.E.2d at 890.

      The facts alleged in Plaintiff’s complaint do not support a conclusion the

individual workers acted corruptly, maliciously, or outside the scope of their duties.

Plaintiff does not offer any facts or forecast any evidence that any individually named

defendant took actions that went beyond—at worst—simple negligence such that her

complaint pierces the cloak of public official immunity. “Because we presume [the]

defendant[s] discharged [their] duties in good faith and exercised [their] power in

accordance with the spirit and purpose of the law and plaintiffs have not shown any

evidence to the contrary,” we hold Plaintiff’s complaint “fail[s] to allege facts which

would support a legal conclusion that defendant[s] acted with malice.” Mitchell v.

Pruden, ___ N.C. App. ___, ___, 796 S.E.2d 77, 83 (2017).

      The allegations in Plaintiff’s complaint do not overcome Defendants’ public

official immunity, and the trial court did not err in granting the Defendants’ motion

to dismiss under the doctrine of public official immunity.

3. 42 U.S.C. § 1983 Claims
      Plaintiff argues the trial court’s dismissal of her 42 U.S.C. § 1983 claims for

failure to state a claim under Rule 12(b)(6) was improper. We disagree. Dismissal

under 12(b)(6) is appropriate where “the complaint on its face reveals that no law

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                                    Opinion of the Court



supports the plaintiff’s claim.” Wood v. Guilford Cnty., 355 N.C. 161, 166, 558 S.E.2d

490, 494 (2002). “The court must construe the complaint liberally and should not

dismiss the complaint unless it appears beyond a doubt that the plaintiff could not

prove any set of facts to support his claim which would entitle him to relief.” Leary

v. N.C. Forest Products, Inc., 157 N.C. App. 396, 400, 580 S.E.2d 1, 4 (2003). Here,

Plaintiff has not alleged any claim entitling her to relief under 42 U.S.C. § 1983.

      a. Due Process Clause

      Plaintiff’s suit is almost identical to that in DeShaney v. Winnebago County

Department of Social Services, 489 U.S. 189, 103 L. Ed. 2d 249 (1989). In DeShaney,

the Department of Social Services (“DSS”) suspected a child had been abused by his

father, but nevertheless allowed him to return home with his father. Id. at 192, 103

L. Ed. 2d at 256-57. Shortly thereafter, the child was beaten nearly to death by his

father and sued DSS under 42 U.S.C. § 1983. Id. at 193, 103 L. Ed. 2d at 257. The

U.S. Supreme Court stated that the Due Process Clause of the Fourteenth

Amendment “does not transform every tort committed by a state actor into a

constitutional violation.” Id. at 202, 103 L. Ed. 2d at 263. “Because . . . the State had

no constitutional duty to protect [the child] against his father’s violence, its failure to

do so—though calamitous in hindsight—simply does not constitute a violation of the

Due Process Clause.” Id.




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                                   Opinion of the Court



      Under DeShaney, a state actor’s failure to take affirmative action to protect a

private individual is not actionable under the Fourteenth Amendment and 42 U.S.C.

§ 1983. Id. As such, Plaintiff may not recover under 42 U.S.C. § 1983 and the Due

Process Clause. We affirm the trial court’s dismissal of those claims.

      b. Equal Protection Clause

      Plaintiff also argues the trial court erred in dismissing her 42 U.S.C. § 1983

claims to the extent they allege violations of her rights under the Equal Protection

Clause. We disagree.

      Plaintiff’s “class of one” equal protection argument is largely premised upon an

incorrect interpretation of two footnotes in DeShaney.        Footnote two denies the

plaintiff’s argument that his equal protection rights were violated because he had an

“entitlement” to receive protective services. Id. at 195, 103 L. Ed. 2d at 258, note 2.

Similarly, footnote three makes the common-sense statement that “[t]he State may

not, of course, selectively deny its protective services to certain disfavored minorities

without violating the Equal Protection Clause.” Id. at 197, 103 L. Ed. 2d at 259, note

3. Both footnotes are, of course, dicta, and neither dilutes the case’s central holding

that a state social worker’s failure to take affirmative action to protect a private

individual does not amount to a constitutional violation. Id. at 202, 103 L. Ed. 2d at

263. Plaintiff does not cite any authority in our jurisdiction or elsewhere that states

otherwise.



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                             DOE V. WAKE COUNTY, ET AL.

                                   Opinion of the Court



      Assuming arguendo Plaintiff’s equal protection claim is not barred by

DeShaney, Plaintiff nevertheless fails to state a “class of one” equal protection claim

upon which relief may be granted. “Our cases have recognized successful equal

protection claims brought by a ‘class of one,’ where the plaintiff alleges that she has

been intentionally treated differently from others similarly situated and that there is

no rational basis for the difference in treatment.” Village of Willowbrook v. Olech,

528 U.S. 562, 564, 145 L. Ed. 2d 1060, 1063 (2000). On its face, this pleading

requirement is similar to that of a plaintiff attempting to pierce the cloak of public

official immunity. As we stated in Section A-2, infra, Plaintiff’s complaint fails to

adequately allege facts that the public officials acted with malice or corruption, and

for the same reason she has failed to state a class of one equal protection claim.

      WCHS’s failure to take affirmative actions to protect Plaintiff from a

dangerous household is not a constitutional violation and therefore does not render

Wake County or its agents liable in the manner Plaintiff’s complaint alleges. The

trial court’s dismissal of Plaintiff’s 42 U.S.C. § 1983 claims is affirmed.

4. Plaintiff’s Motion to Amend

      Plaintiff additionally argues the Superior Court abused its discretion by

denying Plaintiff’s Motion for Leave to Amend her first suit. “A trial court abuses its

discretion only where no reason for the ruling is apparent from the record. Our

Courts have held that reasons justifying denial of leave to amend [include] . . . futility



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of amendment.” Rabon v. Hopkins, 208 N.C. App. 351, 353-54, 703 S.E.2d 181, 184

(2010) (internal citation omitted). Here, it is apparent from the record that the trial

court’s reason for denying Plaintiff’s motion was that such an amendment would be

futile.

          Plaintiff sought leave to amend her first complaint in order to replace

defendants “John Doe 1, John Doe 2, etc.” with named defendants. However, for the

reasons discussed above, Plaintiff failed to state a claim upon which relief could be

granted. Therefore, any further amendment would be futile and the Superior Court’s

denial of Plaintiff’s Motion for Leave to Amend was not an abuse of discretion.

                                      B. 17 CVS 3821

          For the reasons stated in Section A, infra, the trial court did not err in

dismissing Plaintiff’s second complaint.         Additionally, the prior pending action

doctrine serves as an independent bar to Plaintiff’s second suit.

          When “the parties and subject matter of the two suits are substantially similar,

the first action will abate the subsequent action if the prior action is determined to

be pending in a court within the state having like jurisdiction.” Eways v. Governor’s

Island, 326 N.C. 552, 559, 391 S.E.2d 182, 186 (1990). “This is so because the court

can dispose of the entire controversy in the prior action” and, by doing so, render the

subsequent action moot. Clark v. Craven Reg’l Med. Auth., 326 N.C. 15, 20, 387

S.E.2d 168, 171 (1990). “The ordinary test for determining whether or not the parties



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                                   Opinion of the Court



and causes are the same for the purpose of abatement by reason of the pendency of

the prior action is this: Do the two actions present a substantial identity as to parties,

subject matter, issues involved, and relief demanded?” Cameron v. Cameron, 235

N.C. 82, 85, 68 S.E.2d 796, 798 (1952).

      Plaintiff brought her second suit against Wake County and WCHS during the

pendency of her first suit. Both were filed in the Wake County Superior Court, the

first on 22 December 2016 and the second on 27 March 2017. The subject matter of

both cases is identical; Plaintiff asserted exactly the same claims, made virtually

identical factual allegations, and demanded the same relief in both complaints.

Additionally, Plaintiff’s suits presented substantially identical parties, the only

difference being that the first suit listed “John Doe 1, John Doe 2, . . . John Doe N,”

and the second suit listed named Defendants previously identified as John Doe. Both

cases are between Plaintiff and Wake County, WCHS, and employees thereof. The

trial court did not err in dismissing Plaintiff’s second suit, 17 CVS 3821, under the

prior pending action doctrine.

                                    CONCLUSION

      We affirm the trial court’s orders granting Defendants’ motions to dismiss

under North Carolina Rule of Civil Procedure 12(b)(6), in 16 CVS 15483, and the prior

pending action doctrine, in 17 CVS 3821. Likewise, we affirm the trial court’s denial

of Plaintiff’s Motion for Leave to Amend.



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                      Opinion of the Court



AFFIRMED.

Judges STROUD and ZACHARY concur.




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