Dail v. City of Goldsboro et al

Filing 31

ORDER granting in part and denying in part re: 11 Motion to Dismiss and 20 Motion to Dismiss. Plaintiff's Seventh, and Eighth Causes of Action are DISMISSED WITH PREJUDICE and Plaintiff's Sixth Cause of Action is DISMISSED WITHOUT PREJUDICE. Signed by District Judge Terrence W. Boyle on 7/13/2011. (Ruffin, L.)

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NORTH CAROLINA

WESTERN DIVISION

No. 5:10-CV-00451-BO

DWAYNE ALLEN DAIL,
Plaintiff,

)
)
)

v.

)
)

CITY OF GOLDSBORO, CITY OF
GOLDSBORO POLICE CHIEF TIMOTHY
J. BELL, in bis official and
individual capacities; JASPER M.
"JACKIE" WARRICK, JR. in bis
official and individual capacities;
CHESTER HILL, in bis official and
individual capacities, THE ESTATE OF
CHESTER HILL, DELORES A. HILL,
The Administratix of the Estate of
Chester Hill, JOHN WIGGINS, in bis
individual and official capacities;
RONALD MELVIN, in bis individual
and official capacities; THE ESTATE
OF RONALD MELVIN, SYLVIA MELVIN,
Administratix of the Estate of Ronald
Melvin, and JOHN AND JANE DOES 1-10,
in tbeir official and individual
capacities,
Defendants.

The Court has before it

Answer [DE 11]

(1)

)
)
)
)
)
)
)
)

o

R D E R

)
)
)
)
)
)
)
)
)
)
)
)

a Motion to Dismiss In Lieu of

filed by Defendants City of Goldsboro, Timothy J.

Bell, Jasper M. Warrick, Jr., and John Wiggins; and (2) a Motion to
Dismiss In Lieu of Answer [DE 20]

filed by The Estate of Chester

Hill, Delores A. Hill, The Administratix of the Estate of Chester
Hill,

and

The

Estate

of

Ronald

Melvin,

Sylvia

Melvin,

Administratrix of the Estate of Ronald Melvin.
On June 2, 2011, the parties argued these Motions before the
undersigned at

a

hearing

in

Raleigh,

North

Carolina.

In

this

posture, the Motions are ripe for adjudication. For the following
reasons,

the Motions To Dismiss [DE

11, 20] are GRANTED IN PART

and DENIED IN PART.
I.

BACKGROUND

Plaintiff's allegations-which the Court presently accepts as
true-reveal

the

following

unfortunate

tale.

During

the

early

morning hours of September 4, 1987, a man cut through the screen of
Tomeisha

Carrington's

bedroom

Apartments in Goldsboro,

window

North Carolina.

at

the

Jefferson

(Amended Compl.

Park

~

17.)

Twelve-year old Tomeisha was awakened by the noise and ran for her
bedroom door,

but the intruder stopped her and closed the door.

The intruder ordered Tomeisha back to bed and raped her.

(Id.)

After the attack, the intruder escaped through Tomeisha's window.
(Amended Compl.

~

18.) Tomeisha caught a glimpse of her attacker

and would later describe him as a white man with long, dusty or
light-brown hair and a beard.

(Amended Compl.

~

17.)

Tomeisha immediately told her mother what happened.
Compl.
from

~

18.)

the

minutes.

City

Tomeisha's mother called 911,
of

Goldsboro

Police

(Amended

and police officers

Department

arrived

within

Tomeisha was taken to the hospital for examination and

treatment.

(Amended Compl.

~

18.) A rape kit was administered at

the hospital. An examination of the rape kit revealed the presence
of sperm on Tomeisha's vaginal swabs and panties.
Law

enforcement

authorities

2

gathered

various

pieces

of

physical evidence, including Tomeisha' s nightgown, her panties, and
some

debris

vacuumed

from

a

second-hand

throw

rug

next

Tomeisha's bed. Among the debris,

investigators found forty

African-American hairs and three

(3)

Compl.

~

21.)

Of

the

Caucasian

Caucasian hairs.

hairs,

two

pubic

to
(40)

(Amended

hairs

were

inconsistent with those of Plaintiff Dwayne Dail, but one head hair
was "found to be microscopically consistent" with Dail's head hair.
(Amended Compl.

~

21.)

During the next few weeks,
identify a
mother

suspect.

saw

a

man

the authorities were unable to

(Amended Compl.
drive

past

the

~

19.)

But then Tomeisha' s

apartment

building

who,

suspiciously, appeared to look at her apartment window. About three
weeks later, Tomeisha's mother saw the same man in the apartment
complex parking lot with some friends.

~

(Amended Compl.

20.) With

Tomeisha in tow, Tomeisha's mother walked through the parking lot.
Sensing that Tomeisha tensed up as

they approached the

crowd,

Tomeisha's mother asked Tomeisha if she saw the man who had raped
her; Tomeisha responded that she had.

~

(Amended Compl.

was one of the young men in the parking lot,

and,

20.) Dail

the pleadings

allege, Tomeisha believed that he was the man who attacked her on
September 4, 1987.
Dail was arrested and charged with first-degree burglary,
first-degree sexual offense, first-degree rape, indecent liberties,
and

lewd

and

lascivious

acts.

3

(Amended

Compl.

~

22.)

The

prosecution's evidence consisted largely of Tomeisha's parking lot
identification of Dail six weeks after the rape and the Caucasian
head hair that "could have originated from Dwayne Dail."
Compl.

~

24.) A Wayne County jury found Dail guilty on all counts 1 ,

and he was
years.

(Amended

sentenced to two

(Amended Compl.

~

life-sentences plus eighteen

(18)

24.) Dail was remanded to the custody of

the North Carolina Department of Corrections to serve his sentence.
By 1995,

Dail had heard of

the burgeoning science of DNA

analysis. That year, through his attorney, Dail requested that the
physical evidence
(Amended Compl.

~

from his

case be preserved for DNA testing.

26.) The Goldsboro City Attorney, however, told

Dail that the Wayne County Clerk's Office destroyed the evidence
from Dail's case in 1994.

(Amended Compl.

~

26.)

In the years following 1995, volunteers with The Innocence
Project and The North Carolina Center on Actual
inquiries to Defendants regarding the evidence
(Amended

Compl.

~

26.)

On

each

occasion,

Innocence made
in Dail' s

officials

case.

with

the

Goldsboro Police Department told Dail's representatives that the
rape kit was destroyed in 1994, that there was no physical evidence
left from the case, and that the Goldsboro Police Department only
kept evidence from murder cases from the 1980s.

(Amended Compl.

~

27. )
In June of 2007, the officer in charge of the Goldsboro Police

IThe charge of lewd and lascivious acts was dropped during the trial.
(Amended Compl. ~ 24.)
4

Department's

evidence

team

responded

to

an

inquiry

from

a

representative of Dail and reported that evidence in several old
cases, including Dail's, had been found.

(Amended Compl.

~

28.)

When he learned that evidence from his case existed,

Dail

requested that all of the evidence be tested against his DNA.
(Amended compl.
evidence

was

Investigation

~

29.) Defendants acquiesced to Dail's request. The

then sent
("SBI")

to

the

North Carolina State

lab for testing.

Bureau of

The SBI determined that

there was biological matter in sufficient quantity and quality to
test for DNA.

(Amended Compl.

~

29.) On August 27, 2007, the Wayne

County District Attorney informed Dail' s representatives that there
was a complete DNA profile from the sperm on the nightgown and that
it did not match Dail's DNA profile.
DNA did,

however,

match

the

profile

(Amended Compl.
of

someone

incarcerated in the North Carolina prison system.
~

30.)

In the face of this evidence,

~

else

29.)
who

The
was

(Amended Compl.

the Wayne County District

Attorney dismissed all charges against Dail with prejudice on the
basis of Dail's innocence.

(Amended Compl.

~~

29-30.) After almost

two decades of wrongful incarceration, Dail's claims of innocence
were vindicated and the State released him from custody.
Dail brought

the present action by filing

a

Complaint on

August 26, 2010 and an Amended Complaint on September 17, 2010 in
the Superior Court of Wayne County. In his Amended Complaint, Dail
asserts a claim under 42 U.S.C.

§

5

1983, on the theory that Dail's

constitutional rights were violated "including but not limited to,
his due process rights and the right to not be subject to improper
deprivations of liberty in the pursuit of happiness." Dail further
alleges claims under section 1983 against certain Defendants in
their

individual

capacities

for

a

violation

of

Dail's

constitutional rights based on "the adherence to unconstitutional
policies, customs, and practices." Dail also alleges North Carolina
state tort claims for obstruction of justice, false arrest/false
imprisonment,
distress,

negligence,

negligent

infliction

of

emotional

negligent loss of evidence as well as a claim arising

directly under the North Carolina Constitution.
On October 21, 2010, Defendants removed this case to federal
court based on Dail's assertion of claims arising under federal
law. On November 22, 2010 and January 12, 2011, Defendants filed
Motions

to

Dismiss

In

Lieu of Answer

[DE

II,

20]

under

Rule

12(b) (6) of the Federal Rules of Civil Procedure. The Motions are
ripe for adjudication.
II.
A.

DISCUSSION

The Legal Standards

A Rule 12(b) (6) motion to dismiss for failure to state a claim
for which relief can be granted challenges the legal sufficiency of
a plaintiff's complaint. Francis v. Giacomelli, 588 F.3d 186, 192
(4th Cir. 2009). When ruling on the motion, the court "must accept
as true all of the factual allegations contained in the complaint."

6

Erickson v.
Corp. v.

551 U.S.

Pardus,

Twombly,

89,

93-94

(2007)

(citing Bell Atl.

550 U.S. 544, 555-56 (2007)). Although complete

and detailed factual allegations are not required,
obligation

'entitle [ment]

to

relief' requires more than labels and conclusions." Twombly,

550

U.S.

the

at

to

555

elements

provide

the

'grounds'

(citations

of

omitted)

cause

action,

a

of

of

his

"a plaintiff's

"Threadbare
supported

by

recitals
mere

statements, do not suffice." Ashcroft v. Iqbal,
129 S. Ct. 1937, 1949 (2009)
B.

of

conclusory

U.S.

(citing Twombly, 550 U. S. at 555).

Defendants' Motions To Dismiss

Pursuant

to

Federal

Rule

of

Civil

Procedure

12(b) (6),

Defendants have moved to dismiss the Amended Complaint, asserting
that Plaintiff fails to state a claim for which relief can be
granted. Defendants' Motions will be granted in part and denied in
part for the reasons set forth below.
1.

Dail's

Plaintiff's First Cause Of Action: 42 U.S.C.
"Monell" Claim

First

Cause of Action alleges

direct

§

1983

section 1983

liability against Defendant City of Goldsboro under the doctrine
announced in Monell v. Dep't of Social Services of the City of New
York, 436 U.S. 658 (1978). Under section 1983, a state actor may be

liable

if

individual

the actor
"to

the

"subjects,

or causes

deprivation

of

any

immunities secured by the Constitution."

to be

rights,

subjected"

an

privileges,

or

42 U.S.C.

§

1983;

see

also, Randall v. Prince George's County, Md., 302 F.3d 188, 193 n.1
7

(4th Cir. 2002). Section 1983 does not create a right or benefit;
it simply provides a mechanism for enforcing a right or benefit
established elsewhere.

Gonzaga Univ.

Doe,

v.

536 U.S.

273,

285

(2002).
In Monell,

the Supreme Court held that a local governmental

body cannot be subject to vicarious liability under section 1983;
however,

the

Court

held

that

direct

liability

at taches

under

section 1983 where "execution of a government's policy or custom,
whether made by its lawmakers or by those whose edicts or acts may
fairly be said to represent official policy, inflicts the injury .
. . . " Monell, 436 U.S. at 694. In other words, for a plaintiff to

have recourse against a municipality under section 1983, he must
show a

constitutional

injury

caused by

a

municipal

policy or

custom. See id.
Dail's First Cause of Action alleges,

inter alia,

that the

City of Goldsboro's evidence retention policies "deprived [him] of
his constitutional rights, including but not limited to, his due
process

to

improper

deprivations of liberty and the pursuit of happiness."

(Amended

Compl.

rights

~

and

the

right

to

not

be

subj ect

41.) Defendants attack Dail's First Cause of Action on the

basis of a recent Supreme Court case. The case, Dist. Attorney's
Office for Third Judicial Dist. v. Osborne,

2308

(2009),

Defendants

contend,

greatly

U.S.
narrows

, 129 S.Ct.
the

type

of

section 1983 claim Dail can allege. Defendants argue that Osborne

8

limi ts

Dail's

First

Cause

of Action merely

to

a

claim

for

a

procedural due process violation based on the facial and practical
adequacy

of

North

Carolina's

procedures

for

accessing

postconviction evidence. Under that analysis, Defendants contend,
Dail has not--and cannot--allege a procedural due process claim
since

Dail

failed

to

test

the

state-created

procedures

for

accessing evidence via a formal motion filed in the trial courts of
North Carolina.

Defendants argue,

therefore,

that Dail's

First

Cause of Action fails to state a claim for which relief can be
granted. Defendants' arguments are unpersuasive.
As an initial matter,

the Osborne holding does not control

here since this case is factually and legally distinguishable from
Osborne. In the Osborne case, a state inmate sought access to DNA

evidence that the inmate alleged would establish his innocence. The
inmate brought his claims through a section 1983 lawsuit based on
his alleged constitutional right to prove that he was actually
innocent of the crime for which he was incarcerated.
The Supreme Court rejected the inmate's claim. The Court found
that

contrary

to

the

inmate's

allegations,

there

is

no

"freestanding" constitutional due process right to postconviction
DNA testing, even to establish actual innocence. Osborne, 129 S.Ct.
at 2322. The Osborne Court went on to find, however, that when a
State enacts a law granting postconviction defendants a right to
evidence and a procedure for accessing that evidence,

9

the State

creates a liberty interest that is itself shrouded in due process
protection. Id. at 2320.
But this case is different. Unlike the inmate in Osborne, Dail
does not attempt
evidence

that

to use

section 1983

could vindicate

his

to access

claims

of

postconviction

innocence

in

the

future. Dail has already accessed the DNA evidence in his case and
has used that evidence to establish his innocence and secure his
release from state custody. Dail, unlike the inmate in Osborne, now
uses section 1983 to seek redress for the Defendants'

allegedly

unconstitutional evidence retention policies. The interests that
were at play before the Supreme Court in Osborne are distinct from
those at play in this case.

Osborne is the wrong framework for

analyzing Dail's claims and this Court, therefore, is not bound by
Osborne's holding.

With Osborne out of the analysis, the Court finds that Dail
has sufficiently alleged that the City of Goldsboro's evidence
retention and request policies and procedures deprived Dail of a
constitutionally

protected

liberty

interest

to

be

unjustifiable confinement. (Amended Compl. ~~ 38-42.)

free

from

Dail' s claim

is cognizable in a section 1983 lawsuit under Monell.
Alternatively, the Court finds that even if Osborne were to
apply in this case, Dail's section 1983 claim would still survive
Defendant's Rule

12 (b) (6)

attack.

As previously mentioned,

the

Osborne Court held that when a State enacts a statute providing

10

postconviction

defendants

a

right

to

access

evidence

and

a

procedure to do so, the state creates an entitlement that is itself
protected by the Due Process Clause. Osborne, 129 S.Ct. at 2320.
The citizens of North Carolina vested such a constitutionally
protected entitlement in Dail and by enacting N.C.
15A-1415(c). The

§

Gen. Stat.

§

15A-1415(c) entitlement allowed Dail, during his

period of confinement, to:
[b]y a motion for appropriate relief, raise the ground
that evidence is available which was unknown or
unavailable to the defendant at the time of trial, which
could not with due diligence have been discovered or made
available at that time, including recanted testimony, and
which has a direct and material bearing upon the
defendant's eligibility for the death penalty or the
defendant's guilt or innocence.
N.C. Gen. Stat.

§

15A-1415(c).

Construing N.C. Gen. Stat.

15A-1415(c) under Osborne, Dail

§

clearly had "a liberty interest in demonstrating his innocence with
new

evidence

under

state

law.

Osborne,

II

129

S.Ct.

at

2319.

Moreover, as the Supreme Court explicitly recognized in Osborne,
Dail's "'state-created right can, in some circumstances, beget yet
other rights to procedures essential to the realization of the
parent right. '" Osborne, 129 S.Ct. at 2319 (citing Connecticut Bd.
of Pardons v.

418 U.S. 539,

McDonnell,

finds

Dumschat,

that

Dail's

§

452 U.S.
556-58

458,

463

(1981)

and Wolff v.

(1974)). To that end,

15A-1415 (c)

entitlement was

this Court

logically and

necessarily accompanied by an implied right to receive reasonably
accurate

and truthful

information from
11

those

State actors

who

voluntarily responded to Dail's informal requests for evidence.
Such a right to reasonably accurate and truthful information falls
within the "other rights to procedures essential to the realization
of the parent right." Id.
With Osborne's principles in mind, the Court finds that Dail
has sufficiently alleged that his state-created entitlement under
N.C. Gen. Stat.

§

15A-1415(c) was thwarted by Defendants' evidence

retention policies. (Amended Compl.
that

due

to

Defendants
evidence
Compl.

their

misinformed Dail,

in Dail's

~~

deficient

case

for

~~

38-42.) Dail clearly alleges

evidence
at

retention

least

was unavailable

12

for

policies,

years,

that

testing.

the

(Amended

1-3, 38-42.) Defendants' policy, therefore, practically

thwarted Dail's ability to obtain evidence that at all times was
under the exclusive control of Defendants and the testing of which
would

have

procedures

led
for

to

his

release

pursuant

postconviction relief.

to

North

(Amended

Carolina's

Compl.

~~

1-3,

38-42.)
Defendant's argue,

however,

that Dail's alleged failure to

formally file a motion under N.C. Gen. Stat.

§

15A-1415(c) is fatal

to his claim. But there are at least two flaws with Defendants'
arguments.
As an initial matter, Defendants' factual assertions regarding
Dail's actions during his period of incarceration are procedurally
premature. At this stage of the proceeding, the Court is concerned

12

only with

the

legal

sufficiency

of

Dail's

Amended

Complaint.

Giacomelli, 588 F.3d at 192. Defendants' attacks on Dail's version
of the facts should be raised at summary judgment or at trial.
Moreover, even assuming that Dail did not file a formal motion
for evidence under

§

15A-1415(c) , that fact, standing in isolation,

does not necessarily foreclose Dail's claim.

The essence of the

Amended Complaint is that Dail was unconstitutionally injured by
the Defendants' evidence retention policies. As a result of those
allegedly flawed policies, Defendants continually misinformed Dail
that

no

evidence

existed

from

his

case.

Defendants'

alleged

misrepresentations therefore created the appearance that Dail's
filing of a motion under

§

15A-1415(c) would be futile.

Neither common sense nor the common law would compel a man to
take an action that reasonably appears to be futile or wasteful.
But that very principle-that Dail should have persisted with a
formal

§

15A-1415 (c)

motion

in

the

face

of

futility-animates

Defendants' Motions to Dismiss. Defendants' position plainly and
unjustly

ignores

the

effect

that

the

Defendants'

own wrongful

conduct and policies had on Dail's decision to file a motion under
§

15A-1415(c). That conduct, practically speaking, thwarted Dail's

ability to vindicate his state-created entitlement.
Accordingly,
sUfficiently

the

alleges

Court
that

the

finds

the

Defendants'

Amended

Complaint

evidence

retention

policies deprived Dail of his constitutional rights by making it

13

practically impossible for Dail
entitlement to evidence under

§

to vindicate his state-created

15A-1415(c). Even construed under

Osborne, Dail states a claim for which relief can be granted.
2.

Plaintiff's Remaining Federal Claims

The Court turns next to Plaintiff's other federal claims for
relief. Plaintiff's Seventh Cause of Action attempts to establish
the Defendants' liability in their individual capacities based on
an alleged failure to "disclose exculpatory evidence in violation
of

[Plaintiff's]

Maryland,

constitutional rights as recognized in Brady v.

373 U.S. 83 (1963)."

(Amended Compl.

~

65.) Plaintiff's

Eighth Cause of Action attempts to establish that the Defendants
should not be entitled to qualified immunity and should be held
liable

in

their

individual

capacities

for

their

alleged

constitutional violations.
The Defendants have moved to dismiss both the Seventh and
Eighth Causes of Action, and Dail does not contest the dismissal of
these claims.

(PI.'s Mem. in Opp. Def.'s Mot. to Dismiss p.2 n.1.)

The Court agrees that dismissal is proper, and considering these
claims on the merits, the Court finds they cannot lie as a matter
of law.
First,
Brady Claim

the Court finds that Plaintiff's individual capacity
(Seventh Cause of Action)

cannot

lie because

"[a]

criminal defendant found guilty after a fair trial does not have
the same liberty interests as a free man." Osborne,

14

129 S.Ct at

Although Dail

2320.

did not

commit

the

acts

that

led

to his

wrongful incarceration, he was proved guilty after a fair trial and
he makes no allegations to the contrary. Instead of attacking the
Defendants'

conduct

Defendants'

post-trial

at

trial,

Dail's

actions

that

case

led

focuses

to

deprivation of Dail's liberty. As a result,

an

on

the

unreasonable

"Brady is the wrong

framework" for analyzing Plaintiff's case, and the Seventh Cause of
Action fails. Osborne, 129 S.Ct. at 2320. Dail's Seventh Cause of
Action is dismissed with prejudice.
The Court further finds that Plaintiff's individual capacity
due process claim

(Eighth Cause of Action)

cannot lie because

qualified immunity shields the Defendants from this claim. Since
Osborne

only

belatedly

addressed

the

due

process

protections

associated with postconviction DNA testing, Dail's rights in this
case had not been clearly established during the relevant time
period. Pearson v. Callahan,

U.S.

129 S.Ct.

808,

815-16

(2009). Without clear Supreme Court or Fourth Circuit authority on

point,

the

individual

Defendants

were

not

on

notice

of

the

Plaintiff's federal due process rights or of the fact that they
each faced potential personal liability for violating those rights.
Dail's Eighth Cause of Action is dismissed with prejudice.
3.

Plaintiff's State Law Obstruction of Justice and
Negligence Claims

Plaintiff's Second, Fourth, Fifth, and Sixth Causes of Action

15

sound in obstruction of justice and negligence. 2 Defendants contend
that

the applicable

statutes of

limitations have

run on these

claims and that the claims must therefore be dismissed. The Court
disagrees.
North Carolina law imposes a three-year statute of limitations
for negligence actions.
Corp.

v.

Under

the

N.C. Gen.

HDR Architecture,

discovery

§

1-52; Pompano Masonry

165 N.C. App.

Inc.,

rule

Stat.

in N.C.

Gen.

401,

Stat.

§

409

(2004).

1-52 (16),

the

negligence action accrues at the time the plaintiff discovers, or
reasonably should have discovered, the injury or damage, as long as
it

is wi thin ten years

Masonry,

of

the defendant's negligence.

165 N.C. App. at 409.

Pompano

And like a negligence claim, an

obstruction of justice claim "must be brought within three years
from the time the cause of action accrues, and an action accrues
when a plaintiff becomes aware or reasonably should have become
aware of the fraud or harm.
N.C. App.

(2010)

H

Self v. Yelton, 688 S.E.2d 34, 38-39,

(citing N.C. Gen. Stat.

§

1-52(9) & (16)).

In this case, the Court finds that Dail did not discover, and
could not

reasonably have

discovered,

that

he

was

injured by

Defendants' alleged negligence and obstruction of justice until the

2 Plaintiff
alleges both general negligence (Fourth Cause of Action)
(Amended Compl. ~~ 52-55) and a separate claim for "Negligent Loss of Evidence."
(Sixth Cause of Action) (Amended Compl. ~~ 60-63.) The Court finds that the Sixth
Cause of Action is embraced by and therefore redundant in light of the
Plaintiff's Fourth Cause of Action. All claims sounding in negligence shall
therefore be consolidated into the Fourth Cause of Action, and the Sixth Cause
of Action shall be dismissed without prejudice.

16

DNA evidence proved that Dail was innocent exonerated him. Had the
evidence not exonerated Dail,

then his inability to obtain the

evidence would not have injured him in any way.
In sum, the Court finds that Dail's state law claims did not
accrue until he was exonerated and released from prison on August
28, 2007. Dail's state law claims were thus timely filed on August
26, 2010. Defendants' Motions to Dismiss are denied with respect to
Dail's Obstruction of Justice and Negligence Claims except that the
redundant Sixth Cause of Action is dismissed without prejudice.
4.

Dail's State Constitutional Claims

Finally, Defendants move to dismiss Plaintiff's claims arising
directly under the North Carolina Consti tution
Action).

In

North

Carolina,

a

direct

claim

(Ninth Cause of
under

the

State

constitution is available only "in the absence of an adequate state
remedy." Corum v. Univ. of North Carolina, 330 N.C. 761, 782, cert.

denied, Durham v. Corum, 506 U.S. 985 (1992). At this stage of the
proceeding, however, it is impossible to determine if Dail has an
"adequate state remedy" aside from his State constitutional claims.
It is premature, therefore, for this Court to dismiss Dail's claims
under the North Carolina Constitution.

17

III.
Based on the foregoing,

CONCLUSION

IT IS HEREBY ORDERED that:

(1)

Defendants' Motions To Dismiss In Lieu Of Answer [DE 11,
20] are GRANTED IN PART and DENIED IN PART;

(2)

Plaintiff's Seventh, and Eighth Causes of
DISMISSED WITH PREJUDICE; and

(3)

Plaintiff's Sixth Cause of Action is DISMISSED WITHOUT
PREJUDICE.

IT IS SO ORDERED, this

~

Action are

day of July, 2011.

TE RENCE W. BOYLE
UNITED STATES DISTRIC

18