in the Court of Appeals 5 September 2018.
by Plaintiff from judgment entered 14 July 2017 by Judge R.
Allen Baddour in Wake County Nos. 16 CVS 15483, 17 CVS 3821
Locke Milholland IV, Attorney at Law PLLC, by J. Locke
Milholland IV, for plaintiff-appellant.
County Attorney Roger A. Askew, Senior Assistant County
Attorney Mary Boyce Wells and Assistant County Attorney Brian
K. Kettmer, for defendants-appellees Wake County, et al.
Jane Doe, brought claims against Wake County, Wake County
Health Services ("WCHS"), and a number of
individual WCHS employees for failing to take action to
protect her from a dangerous and abusive household. The Wake
County Superior Court dismissed all of Plaintiff's claims
under North Carolina Rules of Civil Procedure 12(b)(1), (4),
(5), (6), the statute of limitations, and the prior pending
action doctrine. After careful review, we affirm the trial
court's dismissal of Plaintiff's claims.
was born in Wake County in 1996 to a mother who had
previously been reported to WCHS for neglecting her
first-born child. At birth, Plaintiff tested positive for
cocaine, and her mother admitted to using cocaine during her
pregnancy. Throughout Plaintiff's youth, WCHS received
and investigated at least eight reports indicating her
household was a potentially dangerous environment for a
child. WCHS investigated the reports and, at various times,
referred Plaintiff's mother for counseling, examined
Plaintiff for signs of abuse, and provided in-home services
to Plaintiff's family.
sued WCHS and its employees-identified as "John Doe 1,
John Doe 2, . . . John Doe N"-in tort and under 42
U.S.C. § 1983 for failing to remove her from the care of
her mother at eight different points in time. In response,
Defendants asserted a number of affirmative defenses and
moved to dismiss the complaint on various grounds. Plaintiff
moved for leave to amend her complaint to add parties and
three days later filed a second complaint, which named Wake
County, WCHS, and a number of WCHS employees in both their
individual and official capacities. Defendants moved to
dismiss this second complaint on the same grounds as the
first and also raised the prior pending action doctrine. The
trial court dismissed both of Plaintiff's complaints and
denied her motion for leave to amend as futile. Plaintiff
review a trial court's decision to dismiss a complaint de
novo." Robert K. Ward Living Trust ex rel. Schulz v.
Peck, 229 N.C.App. 550, 552, 748 S.E.2d 606, 608 (2013).
"Under a de novo review, the court considers
the matter anew and freely substitutes its own judgment for
that of the lower tribunal." Craig v. New Hanover
Cnty. Bd. of Educ., 363 N.C. 334, 337, 678 S.E.2d 351,
354 (2009) (internal quotations omitted). The trial court
dismissed Plaintiff's claims "pursuant to North
Carolina Rules of Civil Procedure 12(b)(1), [(4), (5), and
(6)], the statute of limitations, and the prior pending
action doctrine," but did not delineate which claims
were being dismissed on which grounds. Nevertheless, we
affirm both of the trial court's dismissal orders.
16 CVS 15483
first complaint, Plaintiff alleged forty causes of action:
thirty-two tort claims against Wake County, WCHS, and their
employees (both in their official and individual capacities),
and eight claims under 42 U.S.C. § 1983 alleging
constitutional violations. Additionally, Plaintiff moved to
amend her complaint and the trial court denied her motion. In
subsections 1 and 2 below, we address Plaintiff's tort
claims. In subsections 3 and 4, we analyze her federal claims
and motion to amend, respectively. In all four subsections,
we affirm the trial court's decisions.
Claims against Wake County, WCHS, and Employees in ...