Messick v. Catawba County, NCMessick v. Catawba County, NC
- Reporters:
- , ,
- Before:
- Wynn
On 3 June 1988, the Catawba County Sheriff’s Department received information from the parents of C.M., a five-year-old child who regularly attended one of the plaintiff’s seven day-care centers, regarding the possible sexual abuse of C.M. by the plaintiff. The investigation of these allegations was assigned to Detective Laverne Bolick, who had received a week of special training regarding dealing with juveniles and had recently completed a special one week Advanced Master’s course in Child Sexual Abuse investigation. Later, Detective K.B. Crouse was also assigned to the investigation.
Based on the two interviews and consultations with Assistant District Attorney Jay Myer, Detectives Bolick and Crouse sought a warrant for the plaintiff’s arrest. That warrant was issued by Magistrate Grace M. Killian on 28 April 1988, and on 8 June 1988 the plaintiff was arrested and charged with taking sexual liberties with a child pursuant to
On 12 June 1988, the Sheriff’s office received information regarding D.D., a second minor child approximately three years old, who had allegedly been sexually abused by the plaintiff. D.D. was interviewed on 13 June 1988 by Judy Vaughn of the Department of Social Services in the presence of Detectives Bolick and Crouse, the child’s mother, and Assistant District Attorney Jay Myer.
On 16 June 1988, a second warrant was issued for the plaintiff’s arrest in connection with the second allegation of abuse charging him with taking indecent liberties with a minor pursuant to
True bills of indictment were returned by a Catawba County grand jury on 7 July 1988 against the plaintiff in connection with the C.M. case on three counts of first degree sexual abuse and one count of taking indecent liberties with a minor. That same grand jury also returned true bills of indictment charging the plaintiff in connection with the abuse of D.D.
The case involving C.M. proceeded to trial in Watauga County, where it was removed due to the degree of publicity the case had received in Catawba County. On 15 March 1989 the jury returned a verdict of “not guilty” on all counts of sexual abuse regarding the minor child C.M. On 30 August 1989, the District Attorney’s office dropped all charges against the defendant pertaining to the minor child D.D.
The plaintiff filed a Complaint against the defendants on 26 February 1991 alleging a cause of action for the violation of his civil rights under
By his sole assignment of error, the plaintiff alleges that the trial court erred in entering summary judgment in favor of the defendants. In support of this contention the plaintiff argues that there are genuine issues of material fact with regard to both his federal and state claims. We disagree.
It is well-established that summary judgment is proper where there is no genuine issue of material fact so that one party is entitled to judgment as a matter of law. Moreover, summary judgment is appropriate if one party cannot overcome an affirmative defense which would work to bar his claim.
Dickens v. Puryear,
302 N.C. 437, 453, 276 S.E.2d 325, 335 (1981). The burden of establishing that there is no genuine issue of material fact lies with the movant, who can meet the burden in one of two ways: 1) Proving that an essential
We examine each of the plaintiffs claims below and determine that summary judgment was appropriate on all claims as against all of the defendants.
I. The Claims Against the County, the Commissioners, and the Sheriff and Officers Sued in Their Official Capacities
A. Federal Claim:
The plaintiff argues that his civil rights were violated pursuant to
Every person who, under color of any statute, ordinance, regulation, custom, or usage, . . . subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
B. The State Claims: Negligence, Negligent Infliction of Emotional Distress, Malicious Prosecution, and Intentional Infliction of Emotional Distress
As a general rule, the doctrine of governmental, or sovereign,’ immunity bars actions against,
inter alia,
the state, its counties, and its public officials sued in their official capacity.
Whitaker v. Clark,
109 N.C. App. 379, 381, 427 S.E.2d 142, 143-44 (1993);
EEE-ZZZ Lay Drain Co. v. North Carolina Dep’t Hum. Res.,
108 N.C. App. 24, 27, 422 S.E.2d 338, 340 (1992);
Robinson v. Nash County,
43 N.C. App. 33, 35, 257 S.E.2d 679, 680 (1979). This doctrine applies where the entity sued is being sued for the performance of a governmental, rather than a proprietary, function.
Robinson,
43 N.C. App. at 35, 257 S.E.2d at 680. It is inapplicable, however, where the state has consented to suit or has waived its immunity through the purchase of liability
Police services are ordinarily considered governmental functions, the performance of which does not subject a municipality to liability. Coleman v. Cooper, 89 N.C. App. 188, 192, 366 S.E.2d 2, 5, disc. rev. denied, 322 N.C. 834, 371 S.E.2d 275 (1988), appeal after remand, 102 N.C. App. 650, 403 S.E.2d 577, disc. rev. denied, 329 N.C. 786, 408 S.E.2d 517 (1991). Moreover plaintiff does not contend, nor does anything in the record indicate, that Catawba County has purchased liability insurance or otherwise consented to suit against it. Therefore, the plaintiff’s action against the county is barred by governmental immunity. Additionally, when public officials are sued in their official capacities, “the action is one against the state for the purposes of applying the doctrine of sovereign immunity.” Whitaker, 109 N.C. App. at 381, 427 S.E.2d at 143-44 (citing Corum v. University of North Carolina, 97 N.C. App. 527, 389 S.E.2d 596 (1990), aff’d in part, rev’d in part, and remanded, 330 N.C. 761, 413 S.E.2d 276 (1992)). Clearly, the Commissioners, as sued in their official capacities, are immune from the plaintiff’s suit. Summary judgment, thus, was proper with respect to the County and the Commissioners.
Governmental immunity, however, does not preclude an action against the sheriff and the officers sued in their official capacities. The legislature, to whom the courts of this state defer in determining when a state or its agents may be sued, Slade v. Vernon, 110 N.C. App. 422, 429 S.E.2d 744 (1993), has provided that a suit may be maintained against a sheriff and other officers.
Every person injured by the neglect, misconduct, or misbehavior in office of any . . . sheriff . . . or other officer, may institute a suit or suits against said officer or any of them and their sureties upon their respective bonds for the due performance of their duties in office in the name of the State, without any assignment thereof ....
The depositions submitted by the defendants in support of their summary judgment motion convey the course of events surrounding the investigation of the charges and the ultimate arrest of Mr. Messick from the point of view of the two officers who were present throughout the process. Their testimony indicates that they interviewed the children involved, that Detective Bolick had taken courses regarding interviewing children, and that they had consulted with people in the District Attorney’s office, re-interviewed C.M. in the presence of an assistant district attorney, and only then sought a warrant for Mr. Messick’s arrest. The evidence in the depositions demonstrates that the officers proceeded with the arrest as they were trained to do and were in no way negligent in carrying out their duties. The plaintiff has presented no forecast of evidence to the contrary, and cannot rely on the unverified allegations contained in his complaint alleging that Detective Bolick was not properly trained and that the officers conducted an inadequate investigation.
Likewise, the plaintiff has presented no forecast of evidence that the officers acted with malice and without probable cause to arrest the plaintiff and, therefore, summary judgment was proper
Finally, with respect to the claim for intentional infliction of emotional distress, the plaintiff has also failed to present a sufficient forecast of evidence to illustrate the necessary elements. The three elements constituting intentional infliction of emotional distress are “1) extreme and outrageous conduct by the defendant, 2) which is intended to and does in fact cause 3) severe emotional distress.” Waddle v. Sparks, 331 N.C. 73, 82, 414 S.E.2d 22, 27 (1992). Nothing in the deposition testimony indicates that there was anything extreme or outrageous about the officers’ conduct during the course of the investigation, nor is there anything to suggest that the officers intended to inflict severe emotional distress upon the plaintiff.
The plaintiff having failed to present a forecast of the evidence with respect to the elements of the state law claims sufficient to make out a prima facie case for trial, summary judgment was properly granted in favor of the defendants.
II. Claims Against the Sheriff and the Officers Sued in Their Individual Capacities
A. Federal Claim:
Without addressing whether the sheriff and the officers, in their individual capacities, are entitled to any immunity from a suit based on
B. The State Claims: Negligence, Negligent Infliction of Emotional Distress, Malicious Prosecution, and Intentional Infliction of Emotional Distress
Generally, the doctrine of public officer immunity precludes public officers from being sued in their individual capacity for mere negligence. “When a governmental worker is sued individually, or in his or her personal capacity, our courts distinguish between public employees and public officers in determining negligence liability.”
Hare v. Butler,
99 N.C. App. 693, 699, 394 S.E.2d 231, 236,
disc. rev. denied,
327 N.C. 634, 399 S.E.2d 121 (1990). Public
A public officer is one whose position is created by either the state constitution or statutes.
Id.
Public officers are usually required to take an oath of office and are vested with discretionary power, which entails exercising “some portion of sovereign power” to carry out their duties.
EEE-ZZZ Lay Drain,
108 N.C. App.
at 29, 422 S.E.2d at 341;
Hare,
99 N.C. App. at 700, 394 S.E.2d at 236. By contrast, public employees are responsible for executing ministerial duties. While discretionary duties involve “personal deliberation, decision and judgment,” ministerial duties are those which are “absolute, certain, and imperative, involving merely the execution of a specific duty arising from fixed and designated facts.”
Hare,
99 N.C. App. at 700, 394 S.E.2d at 236. Prior case law recognizes the position of sheriff as being that of a public officer who exercises discretionary power in the performance of his duties.
See, e.g., State ex rel. Williams v. Adams,
25 N.C. App. 475, 213 S.E.2d 584,
remanded,
288 N.C. 501, 219 S.E.2d 198 (1975);
State v. Wright,
1 N.C. App. 479, 480, 162 S.E.2d 56, 57,
aff’d,
274 N.C. 380, 163 S.E.2d 897 (1968). The office of sheriff is provided for by the North Carolina Constitution and the duties and obligations of the office are enumerated in the statutes.
The statutes also provide that the sheriff will appoint deputies, who have been recognized as public officers by our courts. See, e.g., Blake v. Allen, 221 N.C. 445, 449, 20 S.E.2d 552, 554 (1942); State v. Jones, 41 N.C. App. 189, 190, 254 S.E.2d 234, 235 (1979); Cline v. Brown, 24 N.C. App. 209, 215, 210 S.E.2d 446, 449 (1974), cert denied, 286 N.C. 412, 211 S.E.2d 793 (1975). Case law seems to indicate, however, that at least traditionally, deputies were deemed to perform ministerial duties and had no authority to perform discretionary duties. See, e.g., Blake, 221 N.C. at 449, 20 S.E.2d at 554 (“the position of a deputy sheriff is a public office, the appointment to which delegates to the deputy authority to perform only ministerial duties imposed upon the sheriff”). Yet, the more modern view of a deputy’s work appears to be that he or she is vested with discretionary power much like the sheriff. See, e.g., Slade v. Vernon, 110 N.C. App. 422, 429 S.E.2d 744 (grouping the sheriff and the jailer together for the purpose of determining whether the two are subject to public official immunity). We conclude, therefore, that, at least as pertains to the investigation of charges and the arrest of Mr. Messick, Officers Bolick and Crouse were performing discretionary duties and are public officers entitled to immunity from the negligence claims as contemplated by the doctrine of public official immunity.
With regard to the other state law claims, we find that the sheriff and the officers are entitled to summary judgment in their individual capacities for the same reasons they are entitled to summary judgment in their official capacities.
For the foregoing reasons, the decision of the trial court is,
Affirmed.
Judges JOHNSON and GREENE concur.