# Hemphill v. Charlotte Mecklenburg Board of Education

> District Court, W.D. North Carolina · August 12, 2024

URL: https://www.frixlaw.com/law-library/cases/10654018

## Case

- **Court:** District Court, W.D. North Carolina
- **Decided:** August 12, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
CIVIL ACTION NO. 3:24-CV-00286-KDB-SCR

COREY HEMPHILL,

Plaintiff,

v. ORDER

CHRISTOPHER K. BERNARD
AND CHARLOTTE
MECKLENBURG BOARD OF
EDUCATION,

Defendants.

THIS MATTER is before the Court on Defendants’ Motion to Dismiss (Doc. No. 7). The
Court has carefully considered this motion and the parties’ briefs and exhibits. As discussed below,
Plaintiff has failed to identify or sufficiently allege that Defendants committed a constitutional
violation, which is necessary for him to pursue his claims. Therefore, the Court will GRANT the
motion and dismiss this action.
I. LEGAL STANDARDS
A. A. Subject Matter and Personal Jurisdiction under Rule 12(b)(1) and
12(b)(2)
Allegations of governmental immunity raise jurisdictional issues. See M Series Rebuild,
LLC v. Town of Mt. Pleasant, 730 S.E.2d 254, 257 (N.C. Ct. App. 2012). The governmental
immunity defense under North Carolina law presents a question of jurisdiction, either subject
matter or personal jurisdiction. Teachy v. Coble Dairies, Inc., 293 S.E.2d 182, 184 (N.C. 1982);
Green v. Kearney, 690 S.E.2d 755 (N.C. App. Ct. 2010); Frye v. Brunswick Cnty. Bd. of Educ.,
612 F. Supp. 2d 694, 701 (E.D.N.C. Mar. 9, 2009). Under Rule 12(b)(1), a party may seek
dismissal based on the court's “lack of subject matter jurisdiction.” Fed. R. Civ. P. 12(b)(1). The
federal courts are courts of limited jurisdiction and may exercise only that jurisdiction which
Congress has prescribed. Chris v. Tenet, 221 F.3d 648, 655 (4th Cir. 2000) (citing Kokkonen v.
Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)). Therefore, whether the Court has

jurisdiction over the subject matter of a case must be considered before addressing its merits. Jones
v. Am. Postal Workers Union, 192 F.3d 417, 422 (4th Cir. 1999). The plaintiff bears the burden of
proving that subject matter jurisdiction exists. Richmond, Fredericksburg & Potomac R.R. Co. v.
United States, 945 F.2d 765, 768 (4th Cir. 1991).
When personal jurisdiction is properly challenged under Rule 12(b)(2), the burden is on
the plaintiff ultimately to prove the Court's jurisdiction over the defendants by a preponderance of
the evidence. Carefirst of Maryland, Inc. v. Carefirst Pregnancy Centers, Inc., 334 F.3d 390, 396
(4th Cir. 2003). However, “when the court addresses the personal jurisdiction question by
reviewing only the parties' motion papers, affidavits attached to the motion, supporting legal

memoranda, and the allegations in the complaint, a plaintiff need only make a prima facie showing
of personal jurisdiction to survive the jurisdictional challenge.” Grayson v. Anderson, 816 F.3d
262, 268 (4th Cir. 2016). In deciding whether the plaintiff has made the requisite showing, the
Court must construe all allegations and evidence available relating to the issue of personal
jurisdiction in the light most favorable to the plaintiff. Id.
B. B. Failure to State a Claim under Rule 12(b)(6)
Under Federal Rule of Civil Procedure 8(a)(2), a complaint must contain “a short and plain
statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).
However, “Rule 8(a)(2) still requires a ‘showing,’ rather than a blanket assertion, of entitlement to
relief.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 n.3 (2007).
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) for “failure to state a
claim upon which relief can be granted” tests whether the complaint is legally and factually
sufficient. See Fed. R. Civ. P. 12(b)(6); Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atlantic

Corp., 550 U.S. at 570; Coleman v. Maryland Court of Appeals, 626 F.3d 187, 190 (4th Cir. 2010),
aff'd sub nom. Coleman v. Court of Appeals of Maryland, 566 U.S. 30 (2012). In evaluating
whether a claim is stated, “[the] court accepts all well-pled facts as true and construes these facts
in the light most favorable to the plaintiff,” but does not consider “legal conclusions, elements of
a cause of action, ... bare assertions devoid of further factual enhancement[,] ... unwarranted
inferences, unreasonable conclusions, or arguments.” Nemet Chevrolet, Ltd. v.
Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir. 2009). Construing the facts in this manner,
a complaint must only contain “sufficient factual matter, accepted as true, to state a claim to relief
that is plausible on its face.” Id. (internal quotations omitted). Thus, a motion to dismiss under

Rule 12(b)(6) determines only whether a claim is stated; “it does not resolve contests surrounding
the facts, the merits of a claim, or the applicability of defenses.” Republican Party of North
Carolina v. Martin, 980 F.2d 943, 952 (4th Cir. 1992).
II. FACTS AND PROCEDURAL HISTORY
During the 2021-2022 school year, Plaintiff was employed by the Charlotte Mecklenburg
Board of Education (the “Board”) as a behavioral modification technician (“BMT”) at James
Martin Middle School. (Doc. 1-1 at ¶ 17.) During that year, Defendant Christopher Bernard was
the principal at James Martin Middle School. On December 17, 2021, Plaintiff was involved in an
incident with a student who was “non-compliant” and “Plaintiff was forced to take measures to
restrain and divert” the student. (Id. at ¶ 24.) Pending an investigation of the incident, which
Plaintiff challenges as unfair, he was suspended with pay but prohibited from continuing to coach
basketball at the school (all of which he contends caused him severe emotional distress and harm).
(Id. at ¶ 37.) Ultimately, Plaintiff was issued a written warning and asked to return to work. (Id. at
¶¶ 33, 39.)

On January 23, 2024, Plaintiff sued the Defendants in Mecklenburg County (N.C.) state
Superior Court, bringing a Substantive Due Process claim under the Fourteenth Amendment
pursuant to 42 U.S.C. § 1983 and a claim for Negligent and Intentional Infliction of Emotional
Distress under state law. In his action, Plaintiff seeks punitive as well as compensatory damages.
The matter was timely removed to this Court on March 7, 2024, pursuant to 28 U.S.C. § 1441(c)
based on this Court’s federal question jurisdiction under 28 U.S.C. § 1331. Defendants assert the
Court may also exercise supplemental jurisdiction over Plaintiff’s state law causes of action
pursuant to 28 U.S.C. § 1367.
More specifically, Plaintiff alleges that CMBOE failed to properly train him and other

similarly situated BMT employees throughout the school district over a period of at least three
years. He claims that this failure to ensure BMT employees were properly trained put the Plaintiff
and other BMT employees at personal risk of harm and in addition put the schools they served in
a "non-compliant" status. He further asserts that this ‘failure to train' constituted a deprivation,
involved egregious conduct under color of law with regard to a property right of Plaintiff that
shocks the conscience and thus violated the substantive due process protections of the Fourteenth
Amendment, and also constituted intentional infliction of emotional distress.
III. DISCUSSION
A. Claim under 42 U.S.C. § 1983
Plaintiff asserts a single federal claim under 42 U.S.C. § 1983. Section 1983 makes civilly
liable any person who deprives an injured party of a constitutional right. However, the statute
does not itself confer any substantive rights. Rather, a plaintiff must identify the alleged
constitutional right violated, prove its violation and establish that the official, acting under color
of state law, caused the deprivation of the federal right. See Riddick v. Sch. Bd. of Portsmouth,

238 F.3d 518, 522 n.3 (4th Cir. 2000); Daniels v. Williams, 474 U.S. 327, 330 (1986); Hafer v.
Melo, 502 U.S. 21, 25 (1991). Here, Plaintiff alleges that Defendants violated the Substantive
Due Process Clause of the Fourteenth Amendment.
In Collins v. City of Harker Heights, 503 U.S. 115, 129 (1992), the Supreme Court
established that “[a] plaintiff asserting a § 1983 substantive due process claim must allege both
the deprivation of a cognizable liberty interest, and that the deprivation of this interest was
“arbitrary in the constitutional sense.” Callahan v. N. Carolina Dep’t of Pub. Safety, 18 F.4th
142, 145-46 (4th Cir. 2021) (quoting Collins v. City of Harker Heights, 503 U.S. 115, 129
(1992)). Yet, the right to be free from harm caused by dangerous workplace conditions is not a

right guaranteed by the Federal Constitution. See Collins, 503 U.S. at 129 (“The Due Process
Clause is not a guarantee against incorrect or ill-advised personnel decisions. Nor does it
guarantee municipal employees a workplace that is free of unreasonable risks of harm.”) (citing
Bishop v. Wood, 426 U.S. 341, 350 (1976)).
The facts in Collins are instructive here. The petitioner was the widow of a city sanitation
worker who died after entering a manhole to unstop a sewer line. Id. at 117. The plaintiff sued
the City under § 1983, alleging that, as in this case, the City’s failure to adequately train its
employees caused a deprivation of life and liberty. The Supreme Court held that Ҥ 1983 does
not apply [to a governmental employer’s failure to train or warn employees about known hazards
in the workplace] because such conduct does not violate the Due Process Clause.” Id. at 117. The
Court reasoned that “the Due Process Clause does not purport to supplant traditional tort law,”
meaning “the governmental employer’s duty to provide its employees with a safe working
environment is [not] a substantive component of the Due Process Clause.” Id. at 126-29. The
Court noted that “state law, rather than the Federal Constitution, generally governs the substance

of the employment relationship.” Id. at 128.
Even if Plaintiff had alleged a federal right, he fails to allege that the Board’s actions
were arbitrary in a constitutional sense. In Collins, the Supreme Court also found that the
petitioner’s allegations could not be properly characterized as “arbitrary” or “conscience-
shocking” in the constitutional sense because her claim was analogous to a typical state-law tort
claim – i.e., that the City breached its duty of care to her husband by failing to provide him a safe
work environment. Id. at 128. In rejecting her claim, the Court explained that “we have
previously rejected claims that the Due Process Clause should be interpreted to impose federal
duties that are analogous to those traditionally imposed by state tort law.” Id. Indeed, “[b]oth the

[United States] Supreme Court and [the Fourth Circuit] have warned against ‘constitutionalizing’
state tort law through the Due Process Clause.” Callahan v. N.C. Dep’t of Pub. Safety, 18 F.4th
142, 145 (4th Cir. 2021) (citing Collins, 503 U.S. 128).
In sum, because Plaintiff fails to allege a deprivation of a cognizable liberty interest1 and
that the deprivation of this interest was “arbitrary in the constitutional sense,” his contention of a
substantive due process violation fails and his Section 1983 claim will be dismissed.

1 Although Plaintiff labels his cause of action as a “Substantive Due Process Violation,”
he also alleges the deprivation of a property right without notice. See Doc. No. 1-1 at ¶ 68. Under
North Carolina law, an at-will employee (which Plaintiff is presumed to be in the absence of
allegations otherwise) does not have a property right in his employment. See Presnell v. Pell, 298
N.C. 715, 723 (1979); Hunter v. White, 704 F. Supp. 94 (W.D.N.C. Dec. 16, 1988).
B. State Law Claims
In addition to his federal Section 1983 claim, Plaintiff asserts claims of intentional and
negligent infliction of emotional distress claims against Principal Bernard individually. In the
absence of a viable federal claim, the federal question jurisdiction on which this action was
removed is lacking, and the court may decline to exercise supplemental jurisdiction over Plaintiff's
remaining state-law claims. See 28 U.S.C. § 1367(c)(3); Carnegie-Mellon Univ. v. Cohill, 484
US. 343, 350 n.7 (1988); ESAB Grp., Inc. v. Zurich Ins. PLC, 685 F.3d 376, 394 (4th Cir. 2012);
Mann vy. Power Home Solar, LLC, No. □□□ CVOO166KDBDSC, 2022 WL 602196, at *2 (W.D.N.C.
Feb. 28, 2022). The Court will exercise its discretion to decline any further consideration of
Plaintiff's state law claims. This is particularly appropriate in light of Plaintiff's request to amend
his Complaint with respect to his state law claims. Accordingly, this matter will be dismissed as
to Plaintiff's federal claim and remanded to the North Carolina Superior Court for Mecklenburg
County for any appropriate further proceedings.
IV. ORDER
NOW THEREFORE IT IS ORDERED THAT:
1. Defendants’ Motion to Dismiss (Doc. No. 7) is GRANTED as to Plaintiff? claim
under 42 U.S.C. § 1983 and otherwise not decided based on the lack of continuing
jurisdiction in this Court; and
2. The Clerk is directed to remand this matter to the Mecklenburg County (N.C.)
Superior Court and then close this matter in accordance with this Order.
SO ORDERED ADJUDGED AND DECREED.
Signed: August 12, 2024

L Coo Ae
Kenneth D. Bell
7 United States District Judge woe

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10654018. Public record. Not legal advice.