in the Court of Appeals 22 August 2016.
by plaintiff from order entered 4 December 2015 by Judge
Donald W. Stephens in Superior Court, Wake County Wake
County, No. 15-CVS-18140.
Fulton, Walker & Owen, PLLC, by S. Luke Largess, for
Attorney General Joshua H. Stein, by Assistant Attorney
General J. Joy for defendant-appellee Britton.
Carlyle Sandridge & Rice, LLP, by Scott D. MacLatchie,
for defendant-appellee Proctor.
appeals a trial court order dismissing plaintiff's action
with prejudice. Defendants each raised several defenses, and
the trial court dismissed plaintiff's claims as to both
defendants without stating the legal rationale for the
dismissal. Because plaintiff has asserted constitutional
violations of liberty interests and equal protection under
Article I, Section 19 of the North Carolina Constitution,
these claims are not barred by sovereign or governmental
immunity. Plaintiff also had standing to bring all of his
claims except his claim for injunctive relief. But
plaintiff's liberty interest claim ultimately fails
because he was afforded due process as to his sex offender
registration though he failed to exercise his statutory right
in Michigan to request removal from the registry before he
moved to North Carolina. Plaintiff's equal protection
claim fails because the State of North Carolina treated
plaintiff exactly as it treats all individuals who have final
convictions that require sex offender registration in other
states. Because ultimately both of plaintiff's claims
fail on the face of the complaint, we affirm the trial
court's order of dismissal.
February of 2012, "[a]fter consulting with the local
sheriff, " plaintiff compulsorily registered as a sex
offender in Cleveland County, North Carolina. In re
Bunch, 227 N.C.App. 258, 259, 742 S.E.2d 596, 598 (2013)
("Bunch I"). Plaintiff then petitioned
"to terminate his registration requirement" and
ultimately prevailed. Id. Thereafter, plaintiff
filed a civil action, this action, against two
government employees whom he alleged had wrongfully compelled
his unnecessary registration. To understand the background of
plaintiff's current appeal, we turn first to
plaintiff's original action for termination of his
registration as a sex offender. See generally In re
Bunch, 227 N.C.App. 258, 742 S.E.2d 596 (2013)
[i]n April 1993, when he was seventeen years old, petitioner
pleaded guilty to third-degree criminal sexual conduct in
Wayne County, Michigan for sexual intercourse with a female
between the ages of thirteen and fifteen. In Michigan,
consensual sexual intercourse between a seventeen-year-old
and a person at least 13 years of age and under 16 years of
age constituted criminal sexual conduct in the third degree.
Petitioner has no other convictions that could be considered
reportable sexual offenses.
Nine years later, in July 2002, petitioner's son was
born. When his son was seven years old, the Circuit Court for
the County of Wayne, Michigan, awarded petitioner sole
custody of his child, by order entered 5 November 2009. On 18
January 2012, the Michigan court entered an order allowing
petitioner to change the domicile of his child to North
Carolina, and petitioner and his son moved to North Carolina.
After consulting with the local sheriff, petitioner
registered with the North Carolina Sex Offender Registry on 8
February 2012. He then filed a petition to terminate his
registration requirement in superior court, Cleveland County.
On 7 June 2012, the superior court held a hearing on his
petition, wherein petitioner was represented by counsel and
the State was represented by the elected District Attorney
for Cleveland County.
At the hearing, petitioner presented the records of his
Michigan conviction and records relating to the custody of
his son and argued that he was never required to register in
North Carolina because the offense for which he was convicted
in Michigan is not a reportable conviction, or even a crime,
in North Carolina; was not a reportable conviction in
Michigan in 1993; and has not been a reportable conviction in
Michigan since 1 July 2011. In addition, petitioner presented
evidence that he met all requirements under N.C. Gen. Stat.
§ 14-208.12A for termination of registration other than
ten years of registration in North Carolina. The State
presented no evidence and made no argument. After considering
the documents and petitioner's argument, the trial court
announced that it was granting the petition on the basis that
petitioner was never required to register in North Carolina,
rather than on the passage of time. Again, the State
registered no objection to the trial court's decision. At
the close of the hearing, the trial court executed an order
on the preprinted form entitled Petition and Order for
Termination of Sex Offender Registration, AOC-CR-263, Rev.
12/11 granting the petition, but also directed
petitioner's attorney to prepare a more detailed order
including the court's rationale as stated in the
rendition of the order in open court for allowing termination
of petitioner's registration. The trial court entered its
full written order on 19 June 2012. The State filed written
notice of appeal from the 19 June order on 19 July 2012.
227 N.C.App. 258, 259-60, 742 S.E.2d 596, 597-98 (citations,
quotation marks, and brackets omitted).
Court dismissed the State's appeal because it had not
preserved the issue before the trial court. Id. at
259, 742 S.E.2d at 597. The State then petitioned the Supreme
Court for discretionary review which was denied. See In
re Bunch, 367 N.C. 224, 747 S.E.2d 541 (2013). Thus,
ultimately the trial court's order was upheld for
plaintiff to be removed from the sex offender registry.
See generally Bunch I, 227 N.C.App. 258, 742 S.E.2d
596, disc. rev. denied, 367 N.C. 224, 747 S.E.2d
541. With this background in mind, we turn to the action
August of 2015, plaintiff filed an amended complaint against
Ms. Lisa Britton, "supervisor or head administrator of
the State's sex offender registration program[, ]"
for the State Bureau of Investigation in the Department of
Public Safety and Mr. Michael Proctor, "administrator of
the sex offender registration program" for the Cleveland
County Sheriff's Department, based upon his requirement
to register which was ultimately overturned in Bunch
I. See id. Plaintiff alleged that when he moved
to North Carolina he was contacted by defendant Proctor.
Defendant Proctor informed plaintiff he would need to
register as a sex offender. Plaintiff explained to defendant
Proctor that he did not believe he should have to register
because "his offense in Michigan was not a crime in
North Carolina and was no long[er] a mandatory sex registry
offense in Michigan[.]" Defendant Proctor informed
plaintiff that if he did not register, he would be arrested.
avoid arrest and criminal prosecution, on 8 February 2012,
plaintiff registered "under protest." Thereafter,
plaintiff was barred from going to his son's school and
accompanying his son to the doctor and was required to move
because his apartment was too close to a daycare facility.
Plaintiff brought these claims under Article I, Section 19 of
the North Carolina Constitution regarding violations of his
liberty interests and equal protection. Plaintiff requested
damages in excess of $10, 000.00.
September 2015, defendant Proctor answered plaintiff's
complaint and pled the affirmative defenses of sovereign
immunity based on allegations of the Sheriff's
Office's lack of liability insurance coverage; estoppel;
plaintiff's failure to mitigate his damages; and failure
to state a claim upon which relief could be granted. Also in
September 2015, defendant Britton filed a motion to dismiss
plaintiff's amended complaint under North Carolina Rules
of Civil Procedure 12(b)(1) for lack of subject matter
jurisdiction due to sovereign and governmental immunity and
Rule 12(b)(6) for failure to state a proper claim. In
November of 2015, defendant Proctor filed a motion for
judgment on the pleadings, citing North Carolina Rule of
Civil Procedure 12(c), "on the grounds the Amended
Complaint on file herein fails to state a claim upon which
relief may be granted in that Plaintiff was properly advised
of state law requirements for sex offender registration upon
relocating to North Carolina." On 4 December 2015, the
trial court allowed defendants' motions to dismiss. Thus,
all claims were dismissed with prejudice. Plaintiff appeals.
Basis for Dismissal
entire substance of the trial court's order dismissing
plaintiff's claims reads:
This matter is before the Court upon Defendant Britton's
motions to dismiss pursuant to Rule 12(b)(1) and 12(b)(6).
The Defendant's motions are allowed and claims against
Britton are dismissed with prejudice.
This matter is also before the Court upon Defendant
Proctor's motion for judgment on the pleadings pursuant
to Rule 12(c). The Defendant's motion is allowed and
claims against Proctor are dismissed with prejudice.
So ordered this, the 1st day of December, 2015.
the trial court allowed defendant Britton's motion under
North Carolina Rule of Civil Procedure 12(b)(1) and (b)(6)
and defendant Proctor's motion under North Carolina Rule
of Civil Procedure 12(c). Plaintiff makes several arguments
on appeal, but we first consider plaintiff's last
argument relating to dismissal based upon North Carolina Rule
of Civil Procedure 12(b)(1).
Dismissal for Lack of Subject Matter Jurisdiction under Rule
first note that since the trial court did not specifically
identify the legal basis for the dismissal, and defendants
raised several different grounds for dismissal, we must
consider each possible rationale. We will start with
sovereign or governmental immunity, since if defendants are
protected by sovereign or governmental immunity, the court
has no subject matter jurisdiction over plaintiff's
claims, and jurisdiction is the essential prerequisite for
any claim. See Hentz v. Asheville City Bd. of Educ.,
189 N.C.App. 520, 522, 658 S.E.2d 520, 521-22 (2008)
("Subject matter jurisdiction is a prerequisite for the
exercise of judicial authority over any case or
has sued both defendants in their official capacities, and
not in their individual capacities. "[A] suit against a
defendant in his official capacity means that the plaintiff
seeks recovery from the entity of which the public servant
defendant is an agent." Meyer v. Walls, 347
N.C. 97, 110, 489 S.E.2d 880, 887 (1997) (citation omitted).
We note that when a county or county agency is the named
defendant, the immunity is appropriately identified as
governmental immunity; conversely, the doctrine of sovereign
immunity applies when suit is brought against the State or
one of its agencies. See id. at 104, 489 S.E.2d at
884. ("Under the doctrine of sovereign immunity, the
State is immune from suit absent waiver of immunity. Under
the doctrine of governmental immunity, a county is immune
from suit for the negligence of its employees in the exercise
of governmental functions absent waiver of immunity."
plaintiff's last argument addresses the dismissal under
Rule 12(b)(1), based upon sovereign immunity. Plaintiff
contends that he "[p]roperly [n]amed [a]ppellees in
[t]heir [o]fficial [c]apacities[.]" Defendant Britton
argues that there were actually three reasons the trial court
properly dismissed pursuant to Rule 12(b)(1) because
"[p]laintiff did not allege or identify any waiver of
sovereign immunity[, ]" "failed to allege
sufficient facts in the amended Complaint to establish that
there is no adequate remedy available to him such that a
direct claim under the Constitution would be allowable[,
]" and "lacks standing to bring the amended
Complaint or request declaratory or injunctive relief."
12(b)(1) permits a party to contest, by motion, the
jurisdiction of the trial court over the subject matter in
controversy. See N.C. Gen. Stat. § 1A-1, Rule
Rule 12(b)(1) of the Rules of Civil Procedure allows for the
dismissal of a complaint due to a lack of jurisdiction over
the subject matter of the claim or claims asserted in that
complaint. The standard of review on a motion to dismiss
under Rule 12(b)(1) for lack of jurisdiction is de
State ex rel. Cooper v. Seneca-Cayuga Tobacco Co.,
197 N.C.App. 176');">197 N.C.App. 176, 181, 676 S.E.2d 579, 583 (2009) (citation,
quotation marks, and brackets omitted).