The opinion
Judge GREENE
concurring in part and dissenting in part.
On the § 1983 claims, for the reasons hereafter asserted in Part I, I agree with the majority that plaintiff should be allowed to proceed to trial only on his claims against Spangler, Thomas and Durham in their official capacities for prospective injunctive relief and that summary judgment should be entered for defendants on the remaining § 1983 claims. On the state constitutional claims, I agree with the majority that the plaintiff should be allowed to proceed to trial on his claims against Thomas and Durham in their individual capacities for monetary relief. With the exception of the plaintiff’s claims against Spangler, Thomas and Durham in their official capacities for prospective injunctive relief, I also agree with *539 the majority that summary judgment should be entered for defendants on the remaining claims asserted pursuant to the state constitution. As to the claims against Spangler, Thomas and Durham in their official capacities for prospective injunctive relief, I disagree with the majority and am of the opinion that those claims should not be dismissed for the reasons hereafter asserted in Part II.
I
Section 1983 Claims
The § 1983 action against UNC and Appalachian State University, and the § 1983 action against Spangler, Thomas and Durham in their official capacities for monetary relief, must be dismissed as they are not “persons” within the meaning of § 1983 and therefore are not subject to § 1983 liability. Will v. Michigan Dept. of State Police, 491 U.S. —, 105 L.Ed.2d 45, 58 (1989). However, Spangler, Thomas and Durham, sued in their official capacities, are “persons” within the meaning of § 1983 to the extent that injunctive relief is sought, since “official-capacity actions for prospective relief are not treated as actions against the state.” Will , 491 U.S. at —, 105 L.Ed.2d at 58, n.10 . Furthermore, the § 1983 state action against Spangler, Thomas and Durham in their official capacities for injunctive relief is not barred by either the Eleventh Amendment, S. Steinglass, Litigation in State Courts § 15.3(b), at 15-30 (Eleventh Amendment is “a subject matter jurisdictional limitation on the power of the federal courts” (emphasis added)) or by state sovereign immunity. Martinez v. California, 444 U.S. 277, 283 , 62 L.Ed.2d 481, 488 , rehearing denied, 445 U.S. 920 , 63 L.Ed.2d 606 (1980) (state created immunities cannot be used to limit liability in § 1983 actions filed in state courts).
A § 1983 action against Thomas and Durham in their individual capacities could be asserted for monetary damages, subject however to their qualified immunity that was pled by the defendants, as defined in Harlow v. Fitzgerald, 457 U.S. 800 , 73 L.Ed.2d 396 (1982). While Harlow arose from a § 1983 action filed in federal court, that same standard should nonetheless apply in a § 1983 action filed in state court. To hold otherwise would result in the possibility of fifty different standards for qualified immunity for § 1983 actions filed in state courts. See Felder v. Casey, 487 U.S. 131 , 101 L.Ed.2d 123, 138 (1988) (“state law is pre-empted when the § 1983 action is brought in state court,” as outcome should not depend on whether action is filed in state or federal court). The Harlow standard is *540 one of “objective reasonableness.” Harlow, 457 U.S. at 818 , 73 L.Ed.2d at 410 . The official conduct is immunized if the “conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Id. While the plaintiff’s constitutional right of free speech, allegedly infringed upon by the defendants, is in a general sense “clearly established,” that right of free speech, requiring application of a balancing test, Connick v. Myers, 461 U.S. 138, 150-51 , 75 L.Ed.2d 708, 722 (1983), is not “clearly established” in a “more particularized . . . sense” as required by Anderson v. Creighton, 483 U.S. 635, 640 , 97 L.Ed.2d 523, 531 (1987).
II
N.C. Constitutional Claims
In plaintiff’s second claim, he asserts a private right of action under the North Carolina Constitution. While North Carolina does not have an enabling statute similar to § 1983 authorizing remedies for the violation of the North Carolina Constitution by state officials acting under color of state law, such private actions are generally recognized as a constitutional tort giving rise to common law remedies. See Bevins v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 , 29 L.Ed.2d 619 (1971); Figueroa v. State, 604 P.2d 1198 (Hawaii 1988). To deny such a claim would deny the plaintiff the “very essence of civil liberty” which entitles “every individual to claim the protection of the laws, whenever he receives an injury.” Marbury v. Madison, 5 U.S. 137, 163 , 2 L.Ed. 60, 69 (1803). However, such private actions for monetary relief against the state or its officials acting in their official capacities are barred by sovereign immunity. See Lewis v. White, 287 N.C. 625, 642-43 , 216 S.E.2d 134, 145-46 (1975). Nonetheless, in this Bevins-type action, which is similar to § 1983 actions, injunctive relief is allowed against state officials sued in their official capacities who, acting under color of state law, “invade the personal or property rights of citizens in disregard of law.” Id. To hold otherwise would permit unlawful action by state officials and relegate the plaintiff to the possibility of only a monetary judgment against an individual. See Lewis, 287 N.C. at 644 , 216 S.E.2d at 146-47 (injunction permitted to restrain state officials from making illegal diversion of public funds); Smith v. State, 289 N.C. 303, 331 , 222 S.E.2d 412, 430 (1976) (monetary relief available against officials acting under color of state law *541 and sued in their individual capacity if acting with corrupt purposes, with malice or outside of or beyond the scope of their duties).
Ill
As our Rules of Civil Procedure permit parties to assert inconsistent and alternative pleadings and claims, plaintiff should not be required to elect at this stage of the proceeding between his § 1983 claims and his state constitutional claims, even to the extent that they seek the same remedies. See Alpar v. Weyerhaeuser Co., 20 N.C. App. 340, 344 , 201 S.E.2d 503, 506 , cert. denied, 285 N.C. 85 , 203 S.E.2d 57 (1974); see also N.C.G.S. § 1A-1, Rule 18(a) (“A party asserting a claim for relief as an original claim . . . may join, either as independent or as alternate claims, as many claims, legal or equitable, as he has against an opposing party.”); N.C.G.S. § 1A-1, Rule 8(e)(2) (1983) (alternative and inconsistent pleadings permitted).