The opinion
NO. COA13-1131
NORTH CAROLINA COURT OF APPEALS
Filed: 5 August 2014
KIRK ALAN TURNER,
Plaintiff,
v. Forsyth County
No. 12 CVS 2352
SPECIAL AGENT GERALD R. THOMAS, in
his individual capacity and,
in the alternative, in his
official capacity; SPECIAL AGENT
DUANE DEAVER, in his individual
capacity and, in the alternative,
in his official capacity; ROBIN
PENDERGRAFT, in her individual
capacity and, in the alternative,
in her official capacity; and
JOHN and JANE DOE SBI Supervisors,
in their individual capacities
and, in the alternative in their
official capacities,
Defendants.
Appeal by plaintiff from order entered 11 April 2013 by
Judge Stuart Albright in Forsyth County Superior Court. Heard
in the Court of Appeals 5 March 2014.
Morrow, Porter, Vermitsky & Fowler, PLLC, by John C.
Vermitsky, for plaintiff-appellant.
Attorney General Roy Cooper, by Special Deputy Attorney
General Angel E. Gray, Special Deputy Attorney General
Grady Balentine, Jr., and Assistant Attorney General
Matthew Boyatt, for defendants-appellees.
GEER, Judge.
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Plaintiff Kirk Allan Turner appeals from an order granting
the motions of defendants Gerald R. Thomas, Duane Deaver, Robin
Pendergraft and John and Jane Doe to dismiss for lack of subject
matter jurisdiction and for failure to state a claim upon which
relief may be granted pursuant to Rules 12(b)(1) and 12(b)(6) of
the Rules of Civil Procedure. We agree with plaintiff that the
trial court erred in dismissing his state law claims against
defendants Thomas and Deaver for malicious prosecution and
intentional infliction of emotional distress ("IIED") because
the allegations of the complaint, when treated as true, are
sufficient to state a claim for relief, and the complaint does
not contain allegations establishing that those claims are
barred by the statute of limitations. As to plaintiff's
remaining claims, we affirm.
Facts
Plaintiff was tried for the murder of his wife, Jennifer
Wittwer Turner, and found not guilty by reason of self defense.
Following his acquittal, plaintiff commenced this lawsuit
against various officers of the North Carolina State Bureau of
Investigation ("SBI") who were involved in the investigation of
his wife's death. Plaintiff's complaint alleges the following
facts.
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On 12 September 2007, plaintiff and his friend Gregory Adam
Smithson went to the Turner's marital residence, where Mrs.
Turner was living, to retrieve some of Mr. Smithson's personal
property being stored there. While Mr. Smithson was loading his
belongings, plaintiff and Mrs. Turner began talking about
personal matters. During the conversation, Mrs. Turner picked
up a spear and began attacking plaintiff, stabbing him multiple
times in his thigh and groin area. In response, defendant
grabbed a pocketknife from his right front pocket and cut Mrs.
Turner twice in the neck, causing her death.
Mr. Smithson called 911 and performed CPR on Mrs. Turner
until emergency personnel arrived. The Davie County Sheriff's
Office responded to the 911 emergency call and Special Agent
E.R. Wall responded on behalf of SBI. Agent Wall notified the
SBI Assistant Special Agent in Charge, K.A. Cline, that a blood
splatter expert would be needed to analyze the scene. However,
after further examination of Mrs. Turner's body, Agent Wall
concluded that the blood splatter patterns at the scene were
likely the result of arterial spurting from the large wound in
Mrs. Turner's neck.
Later that evening, Agent Cline arranged for defendant
Thomas, a special agent at the SBI, to conduct a blood splatter
interpretation of the scene and of several articles of clothing
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that had been collected during the course of the investigation.
On 14 September 2007, defendant Thomas documented the
bloodstains and bloodstain patterns at the crime scene and then
went to the Davie County Sheriff's Office to examine clothing
and other evidence collected from the scene. Prior to defendant
Thomas' examining any evidence, SBI Special Agent D.J. Smith
informed him that Mrs. Turner had apparently stabbed plaintiff
with a spear and, in response, plaintiff reached into his right
front pocket of his pants to retrieve a knife that he used to
cut her throat.
Fifteen days later, defendant Thomas wrote a report
documenting the bloodstain patterns at the scene and his notes
regarding the clothing seized. The report stated that the t-
shirt worn by plaintiff on the night of Mrs. Turner's death had
a large bloodstain on it consistent with a transfer bloodstain
pattern resulting from a bloody hand being wiped on the surface
of the shirt.
On 13 December 2007, plaintiff was indicted for first
degree murder of Mrs. Turner. Plaintiff was detained for one
month before being granted a $1,000,000.00 bond. When plaintiff
posted bail, he was released on house arrest.
On 15 January 2008, defendant Thomas met with defendant
Deaver, an SBI special agent; an attorney with the District
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Attorney's office; Captain Jerry Hartman, the lead investigator
for the Davie County Sherriff's Office; and "Mr. Marks" to
discuss the feasibility of plaintiff's version of events leading
to Mrs. Turner's death. At that meeting, the men theorized that
plaintiff killed Mrs. Turner as part of an elaborate scheme in
which plaintiff stabbed himself with the spear and staged the
scene to make it look like self defense. To prove this theory,
defendants needed to show that the transfer blood stain on
plaintiff's shirt was not a mirror image stain from plaintiff's
hand, but rather a transfer pattern consistent with plaintiff
wiping his knife off on his shirt.
Defendants Thomas and Deaver, with the approval of their
supervisor (defendant Pendergraft), then "wantonly and
maliciously conducted unscientific tests to 'shore up' the new
theory." In conducting the new tests, defendant Thomas retook
samples of evidence but failed to properly label his work, and
he failed to make a record of his new theory. Defendants Thomas
and Deaver videotaped themselves conducting unscientific
experiments to try to obtain a blood smear from a knife similar
to the smear on plaintiff's shirt. After several attempts,
defendants obtained a smear with a knife that looked similar to
the smear on plaintiff's shirt. At that point in the video,
defendant Deaver can be heard saying, "'Oh, even better! Holy
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cow, that was a good one!' and 'Beautiful! That's a wrap,
baby!'"
After conducting the new tests and reviewing the evidence a
second time, defendant Thomas created a second report
purportedly discussing the "examination of clothing for
bloodstain patterns on Friday, September 14, 2007," even though
the actual date of the examination was 15 January 2008. The
second report altered the first report by replacing "'consistent
with a bloody hand wiped on the shirt' with 'consistent with a
pointed object being wiped on the shirt.'"
Stuart James of Fort Lauderdale, Florida, disagreed with
Thomas and Deaver's blood stain analysis and believed that the
blood stain was most likely a "'mirror stain'" created when the
shirt was folded after the shirt was cut off or when it was
tossed on the floor.1 Thomas, however, wrote in his report that
Captain Hartman "'was present when emergency services cut the
gray T-shirt from Mr. Turner's body and that the question [sic]
blood stain was observed present in its current condition on the
shirt. Hartman said that he took the shirt from Emergency
1
It is unclear from the complaint when and in what form
Stuart James offered this opinion, whether he testified at
plaintiff's criminal trial, what his credentials were, or how he
came to be involved in the case.
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Medical Services and placed it in a secure area [an adjacent
room], laying flat on the floor to dry.'"2
Plaintiff's trial began on 27 July 2009. Defendant Thomas
testified at trial consistent with what he had written in his
report. Captain Hartman testified, however, that he did not
arrive at the crime scene until two hours after EMTs took
plaintiff to the hospital and that he was not present when EMTs
removed the shirt. Additionally, initial crime scene photos
showed that the t-shirt was crumpled on the floor, inside out.
The jury returned a verdict of not guilty of murder by
reason of self defense on 21 August 2009. On 14 November 2011,
plaintiff filed a complaint against defendants Thomas, Deaver,
Pendergraft, and John and Jane Doe in a case docketed as 11 CVS
7812. Defendant Pendergraft is the Director of the SBI, and
defendants John and Jane Doe are supervisors for the SBI. On 4
April 2012, plaintiff voluntarily dismissed his complaint in 11
CVS 7812, and filed the complaint which is the subject of this
appeal.
Plaintiff's complaint alleges several causes of action
against defendants. As to defendants Thomas and Deaver in their
2
The complaint does not specify when Thomas added this
information to the report, but it could be read to imply that
Thomas wrote this in his second report in response to Stuart
James' opinion in an effort to discredit it, but the complaint
is vague in this regard.
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individual capacities, the complaint alleges claims for (1)
IIED, (2) Abuse of Process, (3) Malicious Prosecution, and (4)
False Imprisonment. As for defendants Pendergraft and Jane and
John Doe, plaintiff brought a claim of negligence for their
failure to properly train, supervise, and direct defendants
Thomas and Deaver. Finally, the complaint asserts claims under
42 U.S.C. § 1983 against all defendants in both their individual
and official capacities, and a claim against all defendants in
their official capacities for violation of Article I § 19 of the
North Carolina Constitution.
Defendants filed motions to dismiss pursuant to Rules
12(b)(1), 12(b)(6), and 12(b)(7). After a hearing on 8 April
2013, the trial court entered an order granting defendants'
motions. In the order, the trial court found that plaintiff
conceded to the dismissal of all claims against John and Jane
Doe and to the dismissal of the 42 U.S.C. § 1983 claim against
all defendants in their official capacities. The order
concluded that "Plaintiff's complaint should be dismissed as to
all Defendants for lack of subject matter jurisdiction and for
failure to state a claim upon which relief can be granted." In
light of this conclusion, the trial court found it "unnecessary
to consider the Defendant's Motion to Dismiss for failure to
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join necessary parties pursuant to 12(b)(7)." Plaintiff timely
appealed the order to this Court.
Discussion
On appeal, plaintiff argues that the trial court should not
have dismissed the claims of malicious prosecution, abuse of
process, IIED, and false imprisonment against defendants Thomas
and Deaver, or the 42 U.S.C. § 1983 claims against defendants
Thomas, Deaver, and Pendergraft in their individual capacities.
Plaintiff does not challenge the dismissal of the remaining
claims including all the claims against defendants John and Jane
Doe, and the negligence claim against Pendergraft. Accordingly,
we affirm the dismissal of those claims. See N.C.R. App. P.
28(a).
Standard of Review
"The motion to dismiss under N.C. R. Civ. P. 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." Stanback v. Stanback, 297 N.C. 181, 185, 254 S.E.2d
611, 615 (1979) (internal citation omitted), disapproved of on
other grounds by Dickens v. Puryear, 302 N.C. 437, 276 S.E.2d
325 (1981). Generally, "'a complaint should not be dismissed
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for insufficiency unless it appears to a certainty that
plaintiff is entitled to no relief under any state of facts
which could be proved in support of the claim.'" Id. (quoting
2A Moore's Federal Practice, § 12.08 (2d ed. 1975)). "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).
I. Plaintiff's State Law Claims
Plaintiff sued defendants Thomas and Deaver for malicious
prosecution, abuse of process, IIED, and false imprisonment.
Defendants moved to dismiss these claims on the basis of the
statute of limitations, failure to state a claim, and public
official immunity.3
With respect to the statute of limitations, the parties
agree that the statute of limitations for each of the state law
claims is three years, N.C. Gen. Stat. § 1-52 (2013), and that
3
In his complaint, plaintiff sought to impose liability on
defendant Pendergraft for defendants Thomas and Deaver's actions
based on a claim of negligent supervision and training.
Plaintiff does not, however, on appeal challenge the trial
court's dismissal of that negligence claim. Plaintiff has,
therefore, chosen not to proceed with any state law claim
against defendant Pendergraft.
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plaintiff initiated this action on 14 November 2011. Therefore,
any cause of action that accrued prior to 14 November 2008 is
barred by the statute of limitations.
A. Malicious Prosecution
"In order to recover in an action for malicious
prosecution, plaintiff must establish that defendant: (1)
instituted, procured or participated in the criminal proceeding
against plaintiff; (2) without probable cause; (3) with malice;
and (4) the prior proceeding terminated in favor of plaintiff."
Williams v. Kuppenheimer Mfg. Co., 105 N.C. App. 198, 200, 412
S.E.2d 897, 899 (1992). In this case, defendant does not
dispute that the prior proceeding terminated in favor of
plaintiff in August 2009 when plaintiff was acquitted of first
degree murder.
Because the prior proceeding terminated within three years
of the initiation of this lawsuit, plaintiff's malicious
prosecution claim is not barred by the statute of limitations.
Defendants argue, however, that the trial court correctly
dismissed this claim because plaintiff's complaint does not
sufficiently allege facts to support the first three elements of
malicious prosecution.
1. Institution, Procurement, or Participation in the
Criminal Proceeding
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Defendants Thomas and Deaver argue that plaintiff's
complaint fails to adequately allege the element of initiation,
procurement, or participation in the criminal proceeding because
"there are no allegations that any of the named defendants
personally played any role in presenting the case to the grand
jury or in initiating criminal process against the plaintiff.
In addition, defendants did not engage in the actions of which
plaintiff specifically complains . . . until several months
after plaintiff's arrest and release on bond."
However, regarding this first element of a malicious
prosecution cause of action, this Court has recognized:
[W]hen discussing the tort of malicious
prosecution generally, our cases indicate a
liberal reading of the requirement that the
defendant have "initiated" the earlier
proceeding. For example, while some of our
decisions involving a claim based upon a
prior criminal action have stated a
plaintiff must prove the defendant initiated
the prior criminal proceeding, see, e.g.,
Alt v. Parker, 112 N.C. App. 307, 312, 435
S.E.2d 773, 776 (1993), disc. review denied,
335 N.C. 766, 442 S.E.2d 507 (1994), and
others have said a plaintiff must show
defendant instituted the prior proceeding,
see, e.g., Juarez-Martinez v. Deans, 108
N.C. App. 486, 491, 424 S.E.2d 154, 157,
disc. review denied, 333 N.C. 539, 429
S.E.2d 558 (1993), still others have held a
plaintiff must establish that the defendant
"instituted, procured or participated in the
criminal proceeding against plaintiff."
Williams, 105 N.C. App. at 200, 412 S.E.2d
at 899 (citation omitted) (emphasis added).
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Moore v. City of Creedmoor, 120 N.C. App. 27, 38, 460 S.E.2d
899, 906 (1995), aff'd in part, rev'd in part on other grounds,
345 N.C. 356, 481 S.E.2d 14 (1997).
Thus, Moore recognized that a showing that a defendant
"'participated in the criminal proceeding'" is sufficient to
establish the first element of a malicious prosecution claim for
relief. Id. (emphasis omitted) (quoting Williams, 105 N.C. App.
at 200, 412 S.E.2d at 899). Although defendants refer to the
inadequacy of plaintiff's allegations regarding "defendants'
participation in the procurement of the indictment" (emphasis
added), Moore's holding allowing for a showing of participation
in a criminal proceeding generally necessarily contemplates
participation after the proceeding has been initiated or
instituted. Defendants' interpretation improperly merges
participation into procurement and eliminates one of the three
alternative ways that this Court has stated that this element
may be established.
Allowing this element to be established by a showing of
participation in the criminal proceeding is consistent with the
Restatement (Second) of Torts, which indicates that "[a] private
person who takes an active part in continuing or procuring the
continuation of criminal proceedings initiated by himself or by
another is subject to the same liability for malicious
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prosecution as if he had then initiated the proceedings."
Restatement (Second) Torts § 655 (1977) (emphasis added). This
rule "applies . . . when the proceedings are initiated by a
third person, and the defendant, knowing that there is no
probable cause for them, thereafter takes an active part in
procuring their continuation." Id., cmt. b.
Although we have not found any North Carolina cases
specifically addressing what facts are necessary to show that a
defendant sufficiently participated in a criminal proceeding to
support a claim for malicious prosecution, we believe that
Williams is instructive. In Williams, this Court explained that
"[t]he act of giving honest assistance and information to
prosecuting authorities does not render one liable for malicious
prosecution." 105 N.C. App. at 201, 412 S.E.2d at 900.
There, this Court held that the plaintiff presented
sufficient evidence of the first element of malicious
prosecution when
the jury could find defendant's actions went
further than merely providing assistance and
information. Defendant brought all the
documents used in the prosecution to the
police. As discussed earlier, these
documents included the eleven suspicious
void sales, the three suspicious alteration
tickets, and the names and addresses of
witnesses to be contacted. From the record
it appears the only additional investigation
undertaken by the authorities was to contact
the three individuals who had suspicious
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alterations performed. Law enforcement
officials never interviewed other customers,
store employees or plaintiff prior to the
time of his arrest. Except for the efforts
of defendant, it is unlikely there would
have been a criminal prosecution of
plaintiff.
Id. It follows from this reasoning that once criminal
proceedings have been initiated, the first element of malicious
prosecution can be established by a showing that defendant
participated in the criminal proceedings if "[e]xcept for the
efforts of defendant, it is unlikely" that the criminal
prosecution would have continued against defendant. Id.
In this case, the complaint alleges that defendants Thomas
and Deaver met with a member of the District Attorney's office
in January 2008 to help formulate a theory in support of the
first degree murder charge. Defendants theorized that Mrs.
Turner did not attack plaintiff, but rather that plaintiff
stabbed himself with the spear and staged the scene to look like
self defense as part of an elaborate scheme.
The complaint further alleges that defendants then devised
and executed unscientific tests designed specifically to support
the theory, and defendant Thomas altered his initial report to
reflect their new findings arising out of those tests.
Significantly, the complaint alleges that "[t]his evidence was
crucial to maintain probable cause for a first-degree murder
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charge." Thus, plaintiff has sufficiently alleged that
defendants participated in the criminal proceedings by alleging
facts that tend to show that "[e]xcept for the efforts of
defendant[s], it is unlikely" that the proceedings would have
continued against plaintiff. Id.
Accordingly, we hold that plaintiff's complaint
sufficiently alleges the first element of malicious prosecution.
See also Pierce v. Gilchrist, 359 F.3d 1279, 1291 (10th Cir.
2004) (applying common law elements of malicious prosecution to
§ 1983 claim and holding allegations sufficient to survive
motion to dismiss when complaint alleged that, after plaintiff's
arrest, defendant forensic analyst "'contrived evidence to
secure a fraudulent conviction'" by creating forensic report
that was false, without any scientific basis, and in disregard
of exculpatory evidence).
2. Probable Cause
Defendants further argue that dismissal was proper because
plaintiff's allegation that there was no probable cause to
initiate or pursue criminal charges against plaintiff is
impermissibly conclusory and need not be taken as true in
considering the motion to dismiss. However, this Court has
recognized that "[w]ith the adoption of 'notice pleading,' mere
vagueness or lack of detail is no longer ground for allowing a
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motion to dismiss." Gatlin v. Bray, 81 N.C. App. 639, 644, 344
S.E.2d 814, 817 (1986) (quoting Sutton v. Duke, 277 N.C. 94,
102, 176 S.E.2d 161, 165 (1970)). Rather, "'[p]leadings comply
with our present concept of notice pleading if the allegations
in the complaint give defendant sufficient notice of the nature
and basis of plaintiffs' claim to file an answer, and the face
of the complaint shows no insurmountable bar to recovery.'" Id.
(quoting Rose v. Guilford Cnty., 60 N.C. App. 170, 173, 298
S.E.2d 200, 202 (1982)).
Under the North Carolina standard for motions to dismiss,
plaintiff's allegation that there was no probable cause is
sufficient unless the facts alleged in the complaint
conclusively establish that there was probable cause or that
there does not exist "'any state of facts which could be proved
in support of'" the allegation of lack of probable cause.
Stanback, 297 N.C. at 185, 254 S.E.2d at 615 (emphasis omitted)
(quoting 2A Moore's Federal Practice, § 12.08). "'The test for
determining probable cause is whether a man of ordinary prudence
and intelligence under the circumstances would have known that
the charge had no reasonable foundation.'" Strickland v.
Hedrick, 194 N.C. App. 1, 17, 669 S.E.2d 61, 71 (2008) (quoting
Becker v. Pierce, 168 N.C. App. 671, 677, 608 S.E.2d 825, 829-30
(2005)).
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Defendants argue that the complaint's allegations that (1)
plaintiff "grabbed a pocketknife from his right front pocket and
made two cuts in rapid succession to Jennifer Turner's neck area
which resulted in her death[,]" and (2) plaintiff was arrested
pursuant to a grand jury indictment conclusively establish the
existence of probable cause in this case. We disagree.
First degree murder is the intentional and unlawful killing
of a human being with premeditation and deliberation. N.C. Gen.
Stat. § 14-17 (2013). The allegation that plaintiff killed Mrs.
Turner with a pocket knife, standing alone, is insufficient to
establish probable cause that plaintiff acted with malice,
premeditation, and deliberation as a matter of law. In
determining probable cause, the totality of the circumstances
must be considered. Here, the complaint, when viewed in the
light most favorable to plaintiff, shows that plaintiff
accompanied his friend to Mrs. Turner's residence in order to
help his friend retrieve personal property being stored there.
While plaintiff talked to Mrs. Turner, she picked up a large
spear and attacked plaintiff, stabbing him several times. In
response, plaintiff retrieved a pocketknife from his front
pocket and cut Mrs. Turner twice in the neck.
These allegations are consistent with plaintiff's claim
that he only acted in self defense and did not stab Mrs. Turner
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with malice, premeditation, and deliberation. When viewed in
the light most favorable to plaintiff, the facts alleged in the
complaint do not establish as a matter of law that there was
probable cause to arrest plaintiff for first degree murder.
In support of their argument that the indictment
conclusively establishes probable cause, defendants cite
Stanford v. Grocery Co., 143 N.C. 419, 426, 55 S.E. 815, 817
(1906), which holds that that a true bill of indictment against
a criminal defendant returned by a grand jury is prima facie
evidence of probable cause. However, "[w]hile our Supreme Court
has said that both a grand jury indictment and a waiver of a
preliminary hearing in a criminal action establish a prima facie
showing of probable cause, nevertheless, such a finding or
waiver is not conclusive in a subsequent malicious prosecution
action, and the question of probable cause is still an issue for
the jury." Williams, 105 N.C. App. at 201, 412 S.E.2d at 900.
The indictment, therefore, only creates an issue of fact for the
jury to determine with respect to the issue of probable cause.
Accordingly, we conclude that plaintiff's complaint sufficiently
alleges a lack of probable cause.
3. Malice
Defendants similarly argue that plaintiff's allegation that
defendants acted maliciously is impermissibly conclusory and not
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supported by the facts alleged. However, in a malicious
prosecution claim, "malice may be inferred from want of probable
cause." Cook v. Lanier, 267 N.C. 166, 170, 147 S.E.2d 910, 914
(1966). Additionally, "'[e]vidence that the chief aim of the
prosecution was to accomplish some collateral purpose, or to
forward some private interest . . . is admissible both to show
the absence of probable cause and to create an inference of
malice, and such evidence is sufficient to establish a prima
facie want of probable cause.'" Id. (quoting Dickerson v. Atl.
Ref. Co., 201 N.C. 90, 95, 159 S.E. 446, 449 (1931)).
Plaintiff alleged that defendants acted with malice,
without probable cause, and for the ulterior purposes of
political gain and advancing their careers. These allegations
are sufficient under Cook to establish the element of malice.
Although defendants suggest that acting for political gain does
not constitute a "collateral purpose" that may raise an
inference of malice and a lack of probable cause, they have
cited no authority to support such a limitation. As explained
by our Supreme Court in Dickerson, "[t]he reason for holding
that proof of a collateral purpose is sufficient to make out a
prima facie want of probable cause is based upon the hypothesis
that a person, bent on accomplishing some ulterior motive, will
act upon much less convincing evidence than one whose only
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desire is to promote the public good." 201 N.C. at 95, 159 S.E.
at 450. We see no reason why this rationale does not apply when
the ulterior motive is to obtain political gain.
In sum, we conclude that the complaint sufficiently alleges
the essential elements of malicious prosecution. Therefore, the
trial court erred in dismissing the claim of malicious
prosecution as to defendants Thomas and Deaver.
B. Abuse of Process
"'[A]buse of process is the misuse of legal process for an
ulterior purpose. It consists in the malicious misuse or
misapplication of that process after issuance to accomplish some
purpose not warranted or commanded by the writ. It is the
malicious perversion of a legally issued process whereby a
result not lawfully or properly obtainable under it is attended
(sic) to be secured.'" Stanback, 297 N.C. at 200, 254 S.E.2d at
624 (quoting Fowle v. Fowle, 263 N.C. 724, 728, 140 S.E.2d 398,
401 (1965)).
More recently, this Court has explained:
"[A]buse of process requires both an
ulterior motive and an act in the use of the
legal process not proper in the regular
prosecution of the proceeding, and that
[b]oth requirements relate to the
defendant's purpose to achieve through the
use of the process some end foreign to those
it was designed to effect. The ulterior
motive requirement is satisfied when the
plaintiff alleges that the prior action was
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initiated by defendant or used by him to
achieve a collateral purpose not within the
normal scope of the process used. The act
requirement is satisfied when the plaintiff
alleges that once the prior proceeding was
initiated, the defendant committed some
wilful act whereby he sought to use the
existence of the proceeding to gain
advantage of the plaintiff in respect to
some collateral matter."
Chidnese v. Chidnese, 210 N.C. App. 299, 310-11, 708 S.E.2d 725,
734-35 (2011) (quoting Stanback, 297 N.C. at 201, 254 S.E.2d at
624). "There is no abuse of process where it is confined to its
regular and legitimate function in relation to the cause of
action stated in the complaint." Mfrs. & Jobbers Fin. Corp. v.
Lane, 221 N.C. 189, 196-97, 19 S.E.2d 849, 853 (1942).
Here, plaintiff alleged that defendants Thomas and Deaver
"intentionally and maliciously used their positions as Special
Agents with the SBI, tasked with the official duty of
investigating the death of Jennifer Wittwer Turner, to obstruct
justice and 'frame' Dr. Kirk Turner for the first-degree murder
of his wife Jennifer Turner after Dr. Kirk Turner was indicted.
This was done for the improper purpose of political benefit, and
to ensure a conviction in a high profile case where it would be
unpopular for the district attorney to enter a dismissal of
charges." The complaint additionally alleged that defendants'
"actions were undertaken for an ulterior motive, that is to
secure a conviction of a high publicity murder case regardless
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of guilt to further the careers of the Defendants and to assist
the District Attorney in winning a very public case for
political purposes with no regard to the defendant's guilt or
innocence."
These allegations are insufficient to support an abuse of
process claim because the improper purpose alleged -- securing
plaintiff's conviction -- is within the intended scope of
criminal proceedings. It, therefore, fails to meet the
requirement that a defendant use the process to achieve a result
"not warranted or commanded by the writ" and "not lawfully or
properly obtainable" by the process. Fowle, 263 N.C. at 728,
140 S.E.2d at 401. Accordingly, we affirm the trial court's
dismissal of plaintiff's abuse of process claim under Rule
12(b)(6). See also Scott v. District of Columbia, 101 F.3d 748,
756 (D.C. Cir. 1996) (holding that when "officers instituted the
criminal charge for precisely the purpose for which it was
intended [--] establishing that [plaintiff] was guilty of a
criminal offense" -- "fact that the officers expected to realize
some benefit by covering up their own alleged wrongdoing simply
points to an ulterior motive, not the kind of perversion of the
judicial process that gives rise to a cause of action for abuse
of process").4
4
Because of this holding, we need not address whether the
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C. Intentional Infliction of Emotional Distress
The essential elements of a claim for IIED are "(1) extreme
and outrageous conduct, (2) which is intended to cause and does
cause (3) severe emotional distress to another." Dickens, 302
N.C. at 452, 276 S.E.2d at 335. "The tort may also exist where
defendant's actions indicate a reckless indifference to the
likelihood that they will cause severe emotional distress." Id.
1. Statute of Limitations
This Court has stated that a cause of action for IIED "does
not come into existence until the continued conduct of the
defendant causes extreme emotional distress." Bryant v.
Thalhimer Bros., Inc., 113 N.C. App. 1, 12, 437 S.E.2d 519, 525
(1993). In Bryant, the plaintiff sued her former employer for
IIED based upon allegations of sexual harassment that began more
than three years prior to her initiation of the lawsuit. Id. at
3, 437 S.E.2d at 521. The defendant raised the defense of the
three-year statute of limitations and argued that the statute
barred recovery for events occurring more than three years prior
to the filing of the lawsuit. Id. at 4, 437 S.E.2d at 521. The
trial court denied the defendant's motion for summary judgment
and motion in limine to bar evidence of events occurring outside
of the period of the statute of limitations. Id. A jury
claim is barred by the statute of limitations.
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returned a verdict in favor of the plaintiff on the IIED claim,
and the defendant appealed. Id.
On appeal, this Court rejected the defendant's contention
that "the acts of [the defendant] that occurred prior to
December 1986 are barred by the three-year statute" because
"[i]f all of the elements of the tort [are] not present, then no
cause of action for intentional infliction of emotional distress
exist[s] at that time." Id. at 13, 437 S.E.2d at 526. The
Court explained:
The statutes of limitations serve to bar
claims, not evidence of contributing factors
to an ultimate claim that has not yet come
into existence. "As our courts have
frequently noted, in no event can a statute
of limitations begin to run until the
plaintiff is entitled to institute action. .
. . Ordinarily, the period of the statute
of limitations begins to run when the
plaintiff's right to maintain an action for
the wrong alleged accrues. The cause of
action accrues when the wrong is complete. .
. ." Obviously, outrageous conduct by the
defendant alone would confer no cause of
action on the plaintiff in the case until
she suffered extreme emotional distress
caused by his actions.
Id. (quoting Bolick v. Am. Barmag Corp., 54 N.C. App. 589, 594,
284 S.E.2d 188, 191, decision modified on other grounds, 306
N.C. 364, 293 S.E.2d 415 (1981)). This Court held that because
the plaintiff's cause of action did not accrue until "the
actions of the defendant did in fact cause emotional distress of
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the calibre set out in Waddle [v. Sparks, 331 N.C. 73, 414
S.E.2d 22 (1992),]" the trial court did not err in denying the
defendant's motion in limine. Id.
In Waddle, the Supreme Court adopted the same standard for
the element of "severe emotional distress" in an IIED claim as
required for a claim of negligent infliction of emotional
distress:
"the term 'severe emotional distress' means
any emotional or mental disorder, such as,
for example, neurosis, psychosis, chronic
depression, phobia, or any other type of
severe and disabling emotional or mental
condition which may be generally recognized
and diagnosed by professionals trained to do
so."
331 N.C. at 83, 414 S.E.2d at 27 (quoting Johnson v. Ruark
Obstetrics & Gynecology Assoc., 327 N.C. 283, 304, 395 S.E.2d
85, 97 (1990)).
Here, plaintiff's complaint alleges that plaintiff "did in
fact suffer severe emotional distress as a direct and proximate
result of the actions of the defendants which first manifested
themselves in diagnosable form following his acquittal for first
degree murder . . . ." Defendant was acquitted in August 2009,
within the three-year statute of limitations before plaintiff
filed the complaint in November 2011. Because plaintiff's cause
of action could not accrue until he suffered severe emotional
distress, and the complaint alleges that did not happen until
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after August 2009, this cause of action as to both defendants
Thomas and Deaver is not barred by the statute of limitations.
See also Ruff v. Reeves Bros., Inc., 122 N.C. App. 221, 227, 468
S.E.2d 592, 597 (1996) (applying Bryant and holding that
"plaintiff's cause of action did not accrue until the actions of
the defendant did, in fact, cause severe emotional distress").
2. Failure to State a Claim for Relief
Defendants argue that plaintiff's complaint fails to allege
sufficient facts to show that defendants engaged in extreme and
outrageous conduct, the first element of IIED. "[T]he initial
determination of whether conduct is extreme and outrageous is a
question of law for the court: 'If the court determines that it
may reasonably be so regarded, then it is for the jury to decide
whether, under the facts of a particular case, defendants'
conduct . . . was in fact extreme and outrageous.'" Johnson v.
Bollinger, 86 N.C. App. 1, 6, 356 S.E.2d 378, 381-82 (1987)
(quoting Briggs v. Rosenthal, 73 N.C. App. 672, 676, 327 S.E.2d
308, 311 (1985)).
"'Conduct is extreme and outrageous when it is so
outrageous in character, and so extreme in degree, as to go
beyond all possible bounds of decency, and to be regarded as
atrocious, and utterly intolerable in a civilized community.'"
Johnson v. Colonial Life & Accident Ins. Co., 173 N.C. App. 365,
-28-
373, 618 S.E.2d 867, 872 (2005) (quoting Guthrie v. Conroy, 152
N.C. App. 15, 22, 567 S.E.2d 403, 408-09 (2002)). "[T]his Court
has set a high threshold for a finding that conduct meets the
standard." Dobson v. Harris, 134 N.C. App. 573, 578, 521 S.E.2d
710, 715 (1999), rev'd on other grounds, 352 N.C. 77, 530 S.E.2d
829 (2000). "'The liability clearly does not extend to mere
insults, indignities, threats, annoyances, petty oppressions, or
other trivialities.'" Briggs, 73 N.C. App. at 677, 327 S.E.2d
at 311 (quoting Restatement (Second) of Torts § 46 cmt. d.).
We believe that the allegations in the complaint in this
case are similar to the facts of West v. King's Dep't Store,
Inc., 321 N.C. 698, 365 S.E.2d 621 (1988). In West, a store
manager falsely accused the plaintiffs of stealing from his
store, despite the plaintiffs producing a receipt of their
purchase and verification from the cashier of the sale. Id. at
700-01, 365 S.E.2d at 622-23. In concluding that the evidence
of the store manager's conduct was sufficient to go to the jury
on the claim of IIED, the Supreme Court cited favorably Judge
Phillips' dissent from the majority opinion of this Court that
"[f]ew things are more outrageous and more
calculated to inflict emotional distress on
innocent store customers that have paid
their good money for merchandise and have in
hand a document to prove their purchase than
for the seller or his agent, disdaining to
even examine their receipt, to repeatedly
tell them in a loud voice in the presence of
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others that they stole the merchandise and
would be arrested if they did not return
it."
Id. at 705, 365 S.E.2d at 625 (quoting West v. King's, 86 N.C.
App. 485, 358 S.E.2d 386 (1987) (Phillips, J., dissenting)
(unpublished)).
Similarly, here, when viewed in the light most favorable to
plaintiff, the complaint alleges facts showing that plaintiff's
prosecution was highly publicized and he was accused of a crime
he did not commit. While in West, the defendant refused to even
look at evidence that would have established that the plaintiffs
had not stolen anything, here, the allegations of the complaint,
viewed in the light most favorable to plaintiff, allege that
defendants Thomas and Deaver -- public officers -- essentially
manufactured evidence to negate plaintiff's self defense claim
by (1) performing unscientific tests designed to prove a theory
that plaintiff's stab wounds were self-inflicted and the scene
staged to look like self defense; (2) creating a second report
supporting that theory that was inconsistent with his first
report; (3) writing the second report in a manner that hid the
existence of the first report by falsely suggested the second
report was the result of examination of the evidence of four
months earlier (when the first report was done) and by not
indicating that the second report was an amendment or supplement
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to the first report; and (4) bolstering the theory by making
false statements in the second report and in testimony regarding
what the Sheriff's Office lead investigator had said. We
believe that allegations that defendants falsely created
evidence to establish guilt equates with the West defendant's
refusal to look at evidence that would have exonerated the
plaintiffs.
The Court in West also noted that the foreseeability of
injury is a factor that goes to the outrageousness of a
defendant's conduct. Id. It stands to reason that the more
serious the crime of which someone is falsely accused and the
more credible the accusers, the more foreseeable the mental
anguish resulting therefrom. Here, the crime of which plaintiff
was accused, first degree murder, is a much more serious offense
than the crime of which the plaintiff in West was accused and
the accusers -- experienced special agents of the SBI -- more
credible to the public than the store manager in West.
Therefore, the nature of the crime and the identity of the
defendants in this case are factors that may be considered in
assessing the outrageousness of defendants' conduct.
Defendants, however, argue that plaintiff's allegations do
not differ substantially from the conduct in Dobson. In Dobson,
a department store employee reported a customer to the
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Department of Social Services ("DSS") for child abuse after the
customer "yelled at the [15-month-old] child, picked her off the
counter where she had been sitting, and set her back down hard."
134 N.C. App. at 575, 521 S.E.2d at 713. The investigation
against the customer was terminated when DSS was unable to
substantiate the employee's claims, and the customer sued the
employee for IIED. Id. In holding that summary judgment was
properly granted in favor of the defendant employee, this Court
explained:
Assuming arguendo that defendant [employee]
exaggerated or fabricated the events she
reported to DSS, the report served only to
initiate an investigatory process. Although
falsely reporting child abuse wastes the
limited resources available to DSS and
subjects the reported parent to questioning
and investigation, in light of this Court's
precedent, we cannot say that such actions
constitute "extreme and outrageous conduct"
which is "utterly intolerable in a civilized
community."
Id. at 578-79, 521 S.E.2d at 715 (quoting Briggs, 73 N.C. App.
at 677, 327 S.E.2d at 311).
In Dobson, the defendant was a private citizen whose false
accusations of criminal conduct merely served to initiate an
investigatory process. The defendant's conduct in Dobson was
not considered outrageous in part due to the existence of an
independent investigatory process that served to protect the
plaintiff from further proceedings based on false accusations.
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In contrast, here, defendants are agents of the SBI who have an
official duty to investigate allegations of criminal conduct and
discover the truth. They are the individuals who are supposed
to be conducting the independent investigatory process that
would protect plaintiff from false accusations. When those
individuals generate unsupported accusations, then the accused -
- in this case, plaintiff -- is subjected to public condemnation
of him as a murderer and is not merely subjected to an
investigation. As a result, defendants' misconduct is more
likely to result in the initiation or continuation of publicized
criminal proceedings than false accusations by private citizens.
Thus, we believe that defendants' status as SBI agents
distinguishes this case from Dobson.
While not binding authority, we note that other
jurisdictions have found that similar conduct by police officers
could be found by a reasonable jury to be sufficiently
outrageous to support an IIED claim. See Limone v. United
States, 579 F.3d 79, 99 (1st Cir. 2009) (conclusion that FBI
engaged in extreme and outrageous conduct supported by findings
that FBI knew that "scapegoats" were not involved in murder
"from the moment that [an informant] implicated them" and that
"FBI agents nonetheless assisted [the informant] in embellishing
his apocryphal tale, helped him to sell that tale to state
-33-
authorities and the jury, and covered up their perfidy by
stonewalling the scapegoats' petitions for post-conviction
relief."); Pitt v. District of Columbia, 491 F.3d 494, 506 (D.C.
Cir. 2007) (evidence that police officer's arrest affidavit
omitted exculpatory evidence and contained at least one false
statement, and evidence that one officer tampered with evidence
in attempt to link plaintiff to crime supported conclusion by
reasonable juror that conduct was sufficiently "outrageous" for
IIED claim); Wagenmann v. Adams, 829 F.2d 196, 214 (1st Cir.
1987) (holding that where evidence could support inference that
officers conspired to arrest plaintiff and have him committed
and were "determined to accomplish this objective at all costs
and by the nearest means, in manifest derogation of the
appellee's civil rights," trial court properly denied motion for
judgment notwithstanding the verdict on IIED claim).
We find the reasoning in these cases persuasive and
consistent with the analysis North Carolina courts have applied.
Accordingly, we hold that plaintiff's complaint sufficiently
alleges outrageous conduct and reverse the trial court's
dismissal of plaintiff's claim of IIED.
D. False Imprisonment
False imprisonment is "'the illegal restraint of a person
against his will.'" Moore v. Evans, 124 N.C. App. 35, 42, 476
-34-
S.E.2d 415, 421 (1996) (quoting Marlowe v. Piner, 119 N.C. App.
125, 129, 458 S.E.2d 220, 223 (1995)). "A false arrest is an
arrest without legal authority and is one means of committing a
false imprisonment." Marlowe, 119 N.C. App. at 129, 458 S.E.2d
220 at 223.
Plaintiff contends that his release on house arrest
constituted false imprisonment. We disagree. As explained by
the Supreme Court of the United States:
False arrest and false imprisonment overlap;
the former is a species of the latter.
Every confinement of the person is an
imprisonment, whether it be in a common
prison or in a private house, or in the
stocks, or even by forcibly detaining one in
the public streets; and when a man is
lawfully in a house, it is imprisonment to
prevent him from leaving the room in which
he is. We shall thus refer to the two torts
together as false imprisonment. That tort
provides the proper analogy to the cause of
action asserted against the present
respondents for the following reason: The
sort of unlawful detention remediable by the
tort of false imprisonment is detention
without legal process[.]
. . . .
Reflective of the fact that false
imprisonment consists of detention without
legal process, a false imprisonment ends
once the victim becomes held pursuant to
such process -- when, for example, he is
bound over by a magistrate or arraigned on
charges. Thereafter, unlawful detention
forms part of the damages for the entirely
distinct tort of malicious prosecution,
which remedies detention accompanied, not by
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absence of legal process, but by wrongful
institution of legal process.
Wallace v. Kato, 549 U.S. 384, 388-90, 166 L. Ed. 2d 973, 980-
81, 127 S. Ct. 1091, 1095-96 (2007) (internal citations and
quotation marks omitted).
Plaintiff's complaint alleges that he was arrested only
after being indicted by a grand jury. He was then released on
house arrest. Plaintiff's complaint fails to allege that he was
confined without legal process or other legal authority. While
plaintiff's allegation that his detention and house arrest were
not supported by probable cause is sufficient to state a claim
for malicious prosecution, plaintiff has not, on appeal, cited
any authority that would allow him to also proceed with a false
imprisonment claim. Accordingly, we affirm the dismissal of
this claim.
E. Public Official Immunity
Public officials sued in their individual capacity are
entitled to public official immunity from claims in tort unless
their "conduct is malicious, corrupt, or outside the scope of
official authority." Epps v. Duke Univ., Inc., 122 N.C. App.
198, 205, 468 S.E.2d 846, 852 (1996). "[I]f a plaintiff wishes
to sue a public official in his personal or individual capacity,
the plaintiff must, at the pleading stage and thereafter,
demonstrate that the official's actions (under color of
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authority) are commensurate with one of the 'piercing'
exceptions." Id. at 207, 468 S.E.2d at 853. To withstand a
defendant's motion to dismiss a claim based on the defense of
public official immunity, the facts alleged in the complaint
must support a conclusion that one of the piercing exceptions
apply. Meyer v. Walls, 347 N.C. 97, 114, 489 S.E.2d 880, 890
(1997).
Here, plaintiff's complaint alleges that defendants'
conduct was willful, intentional, and malicious. As previously
discussed, the facts alleged support an inference that
defendants acted maliciously. Therefore, to the extent the
trial court dismissed the complaint based on public official
immunity with respect to the malicious prosecution and IIED
claims, the trial court erred.
II. Federal Constitutional Claims
Plaintiff argues that his complaint adequately alleged
facts to support a § 1983 claim for malicious prosecution
against defendants Thomas, Deaver, and Pendergraft in their
individual capacities. Plaintiff apparently bases the § 1983
claim upon a violation of plaintiff's Fourth Amendment right to
be free from unreasonable seizure, but otherwise makes no
attempt to distinguish the § 1983 malicious prosecution claim
from the state law malicious prosecution claim. Defendants
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argue, however, that they are entitled to qualified immunity for
this claim and that the trial court properly dismissed the claim
on this basis.
"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) (quoting Andrews v. Crump, 144 N.C. App. 68, 75-
76, 547 S.E.2d 117, 122 (2001)). "The qualified immunity
inquiry requires a determination of whether the right at issue
was clearly established at the time it was allegedly violated."
Id. at 474, 574 S.E.2d at 87.
On appeal, plaintiff makes no argument that defendants
violated a clearly established constitutional right. Rather,
plaintiff, citing only Epps v. Duke Univ., Inc., 116 N.C. App.
305, 447 S.E.2d 444 (1994), confuses the doctrine of qualified
immunity with the doctrine of public official immunity, arguing
generally that because "[u]nder the facts alleged, the
Defendants could not have acted in good faith[,]" neither
immunity defense is available to defendants at this stage of the
proceeding.
-38-
Plaintiff, therefore, does not make any relevant argument
or cite any authority in support of his assertion that
defendants are not entitled to qualified immunity for the § 1983
malicious prosecution claim. "Issues not presented in a party's
brief, or in support of which no reason or argument is stated,
will be taken as abandoned." N.C.R. App. P. 28(b)(6).
Accordingly, we affirm the trial court's dismissal of
plaintiff's § 1983 claims.
Conclusion
In sum, we reverse the trial court's dismissal of
plaintiff's state law malicious prosecution and IIED claims, as
neither of those claims are barred by the statute of limitations
or public official immunity and the allegations of the complaint
are legally sufficient to state a claim for relief. As to the
remaining claims, we affirm.
Affirmed in part; reversed in part.
Judges ROBERT C. HUNTER and McCULLOUGH concur.