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Sutton v. North Carolina State Bar

United States District Court, E.D. North Carolina, Western Division

September 12, 2014

DAVID C. SUTTON, Plaintiff,


W. EARL BRITT, Senior District Judge.

This matter is before the court on various motions.


In April 2013, the North Carolina State Bar ("State Bar') filed a complaint against plaintiff, an attorney admitted to practice in this state, alleging violations of the North Carolina Rules of Professional Conduct. Mary Winstead and Carmen Bannon, Deputies Bar Counsel, are prosecuting the claims of misconduct against plaintiff. Plaintiff's disciplinary hearing occurred on 5-9 May and 9-11 June before the State Bar's Disciplinary Hearing Commission ("DHC") members Fred Morelock, Irvin Hankins, and Karen Ray (collectively the "DHC Panel"). (DE #70-2, at 1.)[1] On July 18, 2014 (corrected on 8, August 2014), the DHC Panel concluded that plaintiff had violated the Rules of Professional Conduct in a number of respects. (Id. at 15-17.) The hearing is set to reconvene 16-18 September 2014, (DE #67-9), to consider any evidence regarding what discipline, if any, to impose against plaintiff, (DE #73-4).

During the pendency of these disciplinary proceedings, on 23 April 2014, plaintiff initiated the instant action against the aforementioned parties as well as "head of the Disciplinary arm of the State Bar, " Katherine Jean, and State Bar investigator Wayne Truax. The following day, plaintiff amended his complaint as of right, and he alleges that in the course of the disciplinary proceedings against him, defendants violated, and conspired to violate, his civil rights and asserts claims pursuant to 42 U.S.C. §§ 1983, 1985, and 1988. (DE #2.) Plaintiff seeks declaratory and injunctive relief and monetary damages.

On 28 April 2014, plaintiff filed a motion to enjoin the State Bar from commencing the disciplinary hearing against him or, alternatively, for declaratory relief. (DE #14.) The following day, plaintiff filed an ex parte motion for a temporary restraining order, requesting that the court enjoin the State Bar from conducting the disciplinary hearing against him. (DE #19.) On the next day, plaintiff filed a motion for preliminary injunction, seeking relief "for the reasons set forth in his ex parte motion for temporary restraining order." (DE #20, at 2.) That same day, the court denied plaintiff's motion for a temporary restraining order, (DE #21), and plaintiff then filed a motion for an expedited hearing on his motion for a preliminary injunction, (DE #22). On 2 May 2014, the court denied the motion for an expedited hearing. (DE #24.)

In the meantime, plaintiff effected service on defendants. On 17 June 2014, the State Bar, Winstead, Bannon, Truax, and Jean (collectively the "State Bar defendants") filed a motion to dismiss. (DE #46.) On 23 June 2014, the DHC and the DHC Panel (collectively the "DHC defendants") filed a motion to dismiss. (DE #50.) On 21 July 2014, plaintiff filed a motion for leave to file a second amended complaint to amend his allegations of bad faith against the State Bar and to assert a claim of slander against the State Bar and Winstead. (DE #57, at 2.)

In sum, the following motions are pending before the court: (1) plaintiff's motion to enjoin the State Bar or, alternatively, for declaratory relief; (2) plaintiff's motion for a preliminary injunction; (3) the State Bar defendants' motion to dismiss; (4) the DHC defendants' motion to dismiss; and (5) plaintiff's motion for leave to file a second amended complaint. These motions have been fully briefed and are ripe for disposition.[2]


At the outset, before considering any of the pending motions, the court finds it necessary to address the capacities in which plaintiff sues the individual defendants. The capacities in which defendants are sued impacts such issues as whether the defendants may be protected by immunity from suit and what damages may be recovered. Plaintiff's amended complaint does not expressly state whether he sues the defendants in their official and/or individual capacities. Defendants raise the issue of capacity in their memoranda in support of their motions, (DE #49, at 2 n.2, 21 n.11; DE #51, at 2 n.1), yet in his response in opposition, plaintiff does not address the issue nor does he attempt to refine his allegations via the motion for leave to file a second amended complaint. Under these circumstances and contrary to defendants' suggestion, the court cannot presume that a defendant has been sued only in his or her official capacity. See Biggs v. Meadows , 66 F.3d 56, 59-60 (4th Cir. 1995) (rejecting presumption applied by minority of Circuits that "where a § 1983 complaint is silent as to capacity, it is presumed that a defendant has been sued only in her official capacity"). Rather,

the court must examine the nature of the plaintiff's claims, the relief sought, and the course of proceedings to determine whether a state official is being sued in a personal capacity. One factor indicating that suit has been filed in such a manner might be the plaintiff's failure to allege that the defendant acted in accordance with a governmental policy or custom, or the lack of indicia of such a policy or custom on the face of the complaint. See Hill v. Shelander, 924 F.2d 1370, 1374 (7th Cir. 1991) (finding a personal capacity claim where "the unconstitutional conduct alleged involves [the defendant's] individual actions and nowhere alludes to an official policy or custom that would shield him from individual culpability"); see also [ Conner v. Reinhard, 847 F.2d 384, 394 n.8 (7th Cir. 1988)]. Another indication that suit has been brought against a state actor personally may be a plaintiff's request for compensatory or punitive damages, since such relief is unavailable in official capacity suits. See, e.g., Shabazz v. Coughlin, 852 F.2d 697, 700 (2d Cir. 1988); Pride v. Does, 997 F.2d 712, 715 (10th Cir. 1993); [ Price v. Akaka, 928 F.2d 824, 828 (9th Cir. 1990)]; [ Gregory v. Chehi, 843 F.2d 111, 119-20 (3rd Cir. 1988)]; Hill, 924 F.2d at 1374. The nature of any defenses raised in response to the complaint is an additional relevant factor. Because qualified immunity is available only in a personal capacity suit, Kentucky v. Graham, 473 U.S. 159, 167, 105 S.Ct. 3099, 3105, 87 L.Ed.2d 114 (1985), the assertion of that defense indicates that the defendant interpreted the plaintiff's action as being against him personally. See Conner, 847 F.2d at 394; [ Lundgren v. McDaniel, 814 F.2d 600, 604 (11th Cir. 1987)]. Throughout, the underlying inquiry remains whether the plaintiff's intention to hold a defendant personally liable can be ascertained fairly.

Id. at 61 (most alterations supplied).

With these considerations in mind, the court concludes that plaintiff sues the defendants in their individual capacities. Plaintiff's amended complaint specifies that he seeks monetary damages against Morelock, Bannon, Winstead, and Jean (in addition to the State Bar and DHC). (Am. Compl., DE #2, at 34.) The individuals affiliated with the State Bar raise the defense of prosecutorial immunity, (Mem., DE #49, at 20), and the DHC Panel raises the defense of judicial immunity, (Mem., DE #51, at 28). These circumstances support the conclusion that plaintiff seeks to hold the individuals personally liable.

Turning to the substance of plaintiff's civil rights claims, all defendants contend that the claims should be dismissed pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim upon which relief can be granted. In reviewing a motion to dismiss on this ground, a court assesses the factual and legal sufficiency of the claims. In so doing, a court must "accept[] all well-pled facts as true and construe[] these facts in the light most favorable to the plaintiff in weighing the legal sufficiency of the c[laims]." Nemet Chevrolet, Ltd. v., Inc. , 591 F.3d 250, 255 (4th Cir. 2009) (citing Ashcroft v. Iqbal , 556 U.S. 662, 680 (2009)). However, a court does not accept as true all legal conclusions. Iqbal , 556 U.S. at 678. In reviewing the legal sufficiency of a claim, "legal conclusions, elements of a ...

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