Olavarria v. Wake Cnty. Human Servs.

An unpublished opinion of the North Carolina Court of Appeals does not constitute

controlling legal authority. Citation is disfavored, but may be permitted in accordance

with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA13-1215

NORTH CAROLINA COURT OF APPEALS

Filed: 1 July 2014

REINALDO OLAVARRIA,

Plaintiff,

v. Wake County

No. 13 CVS 00491

WAKE COUNTY HUMAN SERVICES: MARY

MORRIS, WARREN LUDWIG, MARILYN

FLETCHER, RAMON ROJANO, KATHY

SUTEHALL, LINDA CLEMENTS. WENDELL

POLICE DEPARTMENT: ROY D.

HOLLOWAY, JAMES E. GILL, and VANCE

JOHNSON,

Defendants.

Appeal by Plaintiff from order entered 6 August 2013 by

Judge Orlando F. Hudson, Jr., in Wake County Superior Court.

Heard in the Court of Appeals 20 March 2014.

Reinaldo Olavarria, Pro Se.

Office of the Wake County Attorney, by Assistant Wake

County Attorney Kenneth R. Murphy, III, for Defendants Wake

County Human Services, Mary Morris, Warren Ludwig, Marilyn

Fletcher, Ramon Rojano, Kathy Sutehall, and Linda Clements.

Cranfill Sumner & Hartzog LLP, by Kari R. Johnson, for

Defendants Wendell Police Department, Roy D. Holloway,

James E. Gill, and Vance Johnson.

DILLON, Judge.

-2-

Reinaldo Olavarria (“Plaintiff”) appeals from the trial

court’s order dismissing his claims against Defendants with

prejudice pursuant to Rules 12(b)(1),(2),(4),(5), and (6) of the

North Carolina Rules of Civil Procedure. We affirm.

I. Factual & Procedural Background

On or about 3 January 2012, Plaintiff, proceeding pro se,

filed two nearly identical complaints, one in Wake County

District Court and one in Wake County Superior Court.1 The

complaints asserted the same claims against Defendants Wake

County Human Services (“WCHS”), Mary Morris, Warren Ludwig,

Marilyn Fletcher, Ramon Rojano, Kathy Sutehall, and Linda

Clements (hereinafter, “Wake County Defendants”), and Defendants

Wendell Police Department (“WPD”), Roy D. Holloway, James E.

Gill, and Vance Johnson (hereinafter, “Wendell Defendants”)

(collectively, “Defendants”). In his complaints, Plaintiff

alleged that Defendants had wrongfully investigated and arrested

him for misdemeanor child abuse in January 2011, following an

incident in which his daughter “hit her head on the head board

of her bed while throwing a tantrum regarding taking a bath” and

after “trying to maneuver around [Plaintiff] to get to her

1

Plaintiff’s district court complaint is dated 30 December 2011

and does not bear a file stamp. Plaintiff’s superior court

complaint is dated 30 December 2011 and is filed stamped 3

January 2012.

-3-

sister.” Plaintiff further alleged that he was criminally

charged on 18 January 2010; that the Wake County Department of

Health and Human Services placed him on its list of “responsible

individuals” (“RIL”), see N.C. Gen. Stat. § 7B-311(b) (2011), in

February 2010; and that the charges against him were dismissed

in May 2010. Plaintiff’s claims, though not numbered and set

out separately as such in the complaints, consisted of, inter

alia, violation of his constitutional rights – specifically, his

right to procedural due process – gross negligence, and

defamation.

Defendants filed answers denying Plaintiff’s allegations

and moving to dismiss Plaintiff’s complaints pursuant to Rules

12(b)(1),(2),(4),(5), and (6) of the North Carolina Rules of

Civil Procedure. Defendants also requested that Plaintiff’s two

complaints be consolidated in Wake County Superior Court.

Defendants’ motions to dismiss and motions to transfer the

district court case to superior court were calendared to be

heard at the 2 April 2012 session in Wake County Superior Court.

Prior to the hearing, however, Plaintiff requested a continuance

on grounds that he was seeking representation of an out-of-state

attorney, Alfred Odom, and that Mr. Odom was “in the process of

obtaining pro hac vice admission to the State of North Carolina

-4-

to represent [him] in this case.” Defendants agreed to

Plaintiff’s request for a continuance.

Defendants’ motions again came on for hearing on 21 May

2012. Plaintiff then informed Defendants that he was continuing

to have difficulties securing Mr. Odom’s representation and

provided Defendants with a letter purportedly drafted (but not

signed) by Mr. Odom stating Mr. Odom’s intention to represent

Plaintiff in this case.

Plaintiff’s claims were ultimately consolidated in Wake

County Superior Court, where Defendants’ motions came on for

hearing on 5 November 2012. Plaintiff appeared at the hearing

pro se. By order filed 23 January 2013, the court granted

Defendants’ motions to dismiss “based upon the failure of

plaintiff to have a Summons issued and served with the Complaint

as required by Rule 4 of the North Carolina Rules of Civil

Procedure.” Plaintiff did not appeal from the 23 January 2013

order.

On 11 January 2013, Plaintiff filed a new complaint

alleging essentially the same claims against the same

Defendants. The new complaint was signed by Mr. Odom, and

summonses were served on Defendants. Defendants filed answers

asserting numerous defenses and moving to dismiss Plaintiff’s

-5-

claims pursuant to Rules 12(b)(1),(2),(4),(5), and (6) of the

North Carolina Rules of Civil Procedure. Defendants served Mr.

Odom with all documents.

On 1 July 2013, Mr. Odom filed a motion with the court

seeking pro hac vice admission. Attached to the motion was a

statement signed by Plaintiff in which Plaintiff indicated that

he had retained Mr. Odom to represent him in this case. By

order entered 12 July 2013, the court denied Mr. Odom’s motion

for pro hac vice admission on grounds that Mr. Odom had failed

to associate with a North Carolina attorney in filing his

motion.

Defendants’ motions to dismiss Plaintiff’s claims came on

for hearing on 25 July 2013, at which time Plaintiff requested a

continuance in light of Mr. Odom’s failure to gain pro hac vice

admission. The court denied Plaintiff’s request and proceeded

to hear arguments on the merits of Defendants’ motions. By

order entered 6 August 2013, the trial court dismissed all of

Plaintiff’s claims with prejudice. From this order, Plaintiff

appeals.

II. Analysis

A. Plaintiff’s Request to Withdraw his Complaint

-6-

Plaintiff first asserts that Mr. Odom was unauthorized to

file the 11 January 2013 complaint on his behalf, and,

“[b]ecause of [this] error, Plaintiff moves this matter be

remanded to the North Carolina Superior Court, to allow

Plaintiff to withdraw this complaint, without prejudice; or,

that [he] be allowed to amend the complaint, upon remand, and

correct any deficiencies in filing.” Plaintiff alleges that Mr.

Odom “defrauded” him and engaged in “illegal” conduct and that

Mr. Odom is liable to him for breach of contract and

malpractice. Whether or not Plaintiff may have causes of action

against Mr. Odom, however, is beyond the scope of this appeal.

Our concern here is limited to the validity of the complaint at

issue, and, as Defendants point out, this Court has specifically

held that “a pleading filed by an attorney not authorized to

practice law in this state is not a nullity.” Thiel v.

Detering, 68 N.C. App. 754, 756, 315 S.E.2d 789, 791 (1984); see

also Reid v. Cole, 187 N.C. App. 261, 265, 652 S.E.2d 718, 720-

21 (2007).

Closely related to Plaintiff’s first argument is his

contention that he was not served with Defendants’ filings in

this case – the filings were instead served on Mr. Odom – and

thus Plaintiff “also cite[s] lack of service of process in

-7-

support of his pleas to have the case remanded to allow the case

to be withdrawn and/or amended to cure deficiencies in filing.”

Our review of the record, however, reveals that Plaintiff

consistently represented to Defendants throughout these

proceedings – from the time Plaintiff filed his two original

complaints on 3 January 2012 up until the 25 July 2013 hearing

on Defendants’ motions to dismiss the complaint in the instant

case – that Mr. Odom would be representing him as his attorney

in this case. It appears that Defendants were, in fact,

required to serve Mr. Odom with their filings – and prohibited

from serving them on Plaintiff – under Rule 4.2(a) of the North

Carolina Rules of Professional Conduct, which expressly forbids

an attorney from directly communicating with an individual that

he knows to be represented by another attorney in the action.

This contention is accordingly overruled.

B. Defendants’ Motions to Dismiss

We next address the merits of the trial court’s dismissal

of Plaintiff’s complaint. The trial court dismissed Plaintiff’s

claims with prejudice “pursuant to Rules 12(b)(1),(2),(4),(5),

and (6) of the North Carolina Rules of Civil Procedure based

upon Plaintiff’s failure to properly serve the Defendants, lack

of personal jurisdiction, Plaintiff’s failure to allege waiver

-8-

of governmental immunity, and Plaintiff’s [f]ailure to otherwise

assert valid claims for relief against the Defendants.”

Although there appear to be several grounds upon which dismissal

was appropriate, we affirm the trial court’s decision based upon

the deficiencies present on the face on the complaint, as

discussed below.

This Court has held that certain governmental entities,

such as county boards, departments, and agencies, are not legal

entities capable of being sued. Craig v. County of Chatham, 143

N.C. App. 30, 31, 545 S.E.2d 455, 456 (2001), aff’d in part,

rev’d in part on other grounds, 356 N.C. 40, 565 S.E.2d 172

(2002) (noting that, unlike the county itself, which possesses

“the right to sue and be sued” pursuant to N.C. Gen. Stat. §

153A-11, the Chatham County Board of Health and Chatham County

Board of Commissioners are not entities capable of being sued).

Accordingly, the claims asserted in Plaintiff’s complaint

against WCHS and WPD, which fall within the purview of

governmental entities incapable of being sued, were correctly

dismissed.

The remaining Wake County and Wendell Defendants consist of

individuals employed by WCHS and WPD, respectively. This Court

has stated that “[g]overnmental immunity shields municipalities

-9-

and the officers or employees thereof sued in their official

capacities from suits based on torts committed while performing

a governmental function.” Kephart by Tutwiler v. Pendergraph,

131 N.C. App. 559, 563, 507 S.E.2d 915, 918 (1998) (emphasis

added). County officers and employees are likewise shielded by

governmental immunity “when they are sued in their official

capacities.” Childs v. Johnson, 155 N.C. App. 381, 386, 573

S.E.2d 662, 665 (2002).

Our Supreme Court has stated the following with respect to

the manner in which claims may be properly asserted against a

defendant in his individual, as opposed to his official,

capacity:

Pleadings should indicate in the caption the

capacity in which a plaintiff intends to

hold a defendant liable. For example,

including the words “in his official

capacity” or “in his individual capacity”

after a defendant’s name obviously clarifies

the defendant’s status. In addition, the

allegations as to the extent of liability

claimed should provide further evidence of

capacity. Finally, in the prayer for relief,

plaintiffs should indicate whether they seek

to recover damages from the defendant

individually or as an agent of the

governmental entity.

Mullis v. Sechrest, 347 N.C. 548, 554, 495 S.E.2d 721, 724-25

(1998). Our Supreme Court recently indicated that the foregoing

Mullis “directive is mandatory” in determining whether a

-10-

complaint asserts a claim against a defendant in his individual

capacity. White v. Trew, 366 N.C. 360, 364, 736 S.E.2d 166, 169

(2013) (“Because the indicia of capacity mandated by Mullis are

absent from the caption, allegations, and prayer for relief, we

must presume that defendant is being sued in only his official

capacity.”).

Our review of Plaintiff’s complaint reveals that Plaintiff

has alleged claims against these Defendants in their official

capacities. Neither the caption of the complaint nor the prayer

for relief indicates an intention to assert claims or seek

damages against these Defendants in their individual capacities.

The body of the complaint does not specify that the claims are

asserted against any Defendant in his or her individual

capacity; in fact, paragraph 38 of the complaint states that

each of the Wake County Defendants “acted in their official

capacity as officers, agents, and/or employees of defendant

WCHS,” and, similarly, paragraph 39 of the complaint states that

each of the Wendell Defendants “acted in their official capacity

as officers, agents, and/or employees of defendant WPD.” We,

therefore, presume that the complaint asserts claims against

these Defendants in their official capacities only. Id.

Because all of the claims set forth in Plaintiff’s

-11-

complaint are asserted against either entities incapable of

being sued or employees of those entities in their official

capacities only2, and because the complaint does not specifically

allege a waiver of governmental immunity, we hereby affirm the

trial court’s dismissal of these claims. Paquette v. County of

Durham, 155 N.C. App. 415, 418, 573 S.E.2d 715, 717 (2002).

AFFIRMED.

Judges STROUD and HUNTER, JR. concur.

Report per Rule 30(e).

2

We note that there is no question that the conduct of the

individual Defendants of which Plaintiff complains concerns

Defendants’ conduct while performing official government

functions. Kephart by Tutwiler, 131 N.C. App. at 563, 507

S.E.2d at 918.