Turner v. Special Agent Thomas

NO. COA13-1131

NORTH CAROLINA COURT OF APPEALS

Filed: 5 August 2014

KIRK ALAN TURNER,
Plaintiff,

v. Forsyth County
No. 12 CVS 2352
SPECIAL AGENT GERALD R. THOMAS, in
his individual capacity and,
in the alternative, in his
official capacity; SPECIAL AGENT
DUANE DEAVER, in his individual
capacity and, in the alternative,
in his official capacity; ROBIN
PENDERGRAFT, in her individual
capacity and, in the alternative,
in her official capacity; and
JOHN and JANE DOE SBI Supervisors,
in their individual capacities
and, in the alternative in their
official capacities,
Defendants.

Appeal by plaintiff from order entered 11 April 2013 by

Judge Stuart Albright in Forsyth County Superior Court. Heard

in the Court of Appeals 5 March 2014.

Morrow, Porter, Vermitsky & Fowler, PLLC, by John C.
Vermitsky, for plaintiff-appellant.

Attorney General Roy Cooper, by Special Deputy Attorney
General Angel E. Gray, Special Deputy Attorney General
Grady Balentine, Jr., and Assistant Attorney General
Matthew Boyatt, for defendants-appellees.

GEER, Judge.
 -2-

Plaintiff Kirk Allan Turner appeals from an order granting

the motions of defendants Gerald R. Thomas, Duane Deaver, Robin

Pendergraft and John and Jane Doe to dismiss for lack of subject

matter jurisdiction and for failure to state a claim upon which

relief may be granted pursuant to Rules 12(b)(1) and 12(b)(6) of

the Rules of Civil Procedure. We agree with plaintiff that the

trial court erred in dismissing his state law claims against

defendants Thomas and Deaver for malicious prosecution and

intentional infliction of emotional distress ("IIED") because

the allegations of the complaint, when treated as true, are

sufficient to state a claim for relief, and the complaint does

not contain allegations establishing that those claims are

barred by the statute of limitations. As to plaintiff's

remaining claims, we affirm.

Facts

Plaintiff was tried for the murder of his wife, Jennifer

Wittwer Turner, and found not guilty by reason of self defense.

Following his acquittal, plaintiff commenced this lawsuit

against various officers of the North Carolina State Bureau of

Investigation ("SBI") who were involved in the investigation of

his wife's death. Plaintiff's complaint alleges the following

facts.
 -3-
On 12 September 2007, plaintiff and his friend Gregory Adam

Smithson went to the Turner's marital residence, where Mrs.

Turner was living, to retrieve some of Mr. Smithson's personal

property being stored there. While Mr. Smithson was loading his

belongings, plaintiff and Mrs. Turner began talking about

personal matters. During the conversation, Mrs. Turner picked

up a spear and began attacking plaintiff, stabbing him multiple

times in his thigh and groin area. In response, defendant

grabbed a pocketknife from his right front pocket and cut Mrs.

Turner twice in the neck, causing her death.

Mr. Smithson called 911 and performed CPR on Mrs. Turner

until emergency personnel arrived. The Davie County Sheriff's

Office responded to the 911 emergency call and Special Agent

E.R. Wall responded on behalf of SBI. Agent Wall notified the

SBI Assistant Special Agent in Charge, K.A. Cline, that a blood

splatter expert would be needed to analyze the scene. However,

after further examination of Mrs. Turner's body, Agent Wall

concluded that the blood splatter patterns at the scene were

likely the result of arterial spurting from the large wound in

Mrs. Turner's neck.

Later that evening, Agent Cline arranged for defendant

Thomas, a special agent at the SBI, to conduct a blood splatter

interpretation of the scene and of several articles of clothing
 -4-
that had been collected during the course of the investigation.

On 14 September 2007, defendant Thomas documented the

bloodstains and bloodstain patterns at the crime scene and then

went to the Davie County Sheriff's Office to examine clothing

and other evidence collected from the scene. Prior to defendant

Thomas' examining any evidence, SBI Special Agent D.J. Smith

informed him that Mrs. Turner had apparently stabbed plaintiff

with a spear and, in response, plaintiff reached into his right

front pocket of his pants to retrieve a knife that he used to

cut her throat.

Fifteen days later, defendant Thomas wrote a report

documenting the bloodstain patterns at the scene and his notes

regarding the clothing seized. The report stated that the t-

shirt worn by plaintiff on the night of Mrs. Turner's death had

a large bloodstain on it consistent with a transfer bloodstain

pattern resulting from a bloody hand being wiped on the surface

of the shirt.

On 13 December 2007, plaintiff was indicted for first

degree murder of Mrs. Turner. Plaintiff was detained for one

month before being granted a $1,000,000.00 bond. When plaintiff

posted bail, he was released on house arrest.

On 15 January 2008, defendant Thomas met with defendant

Deaver, an SBI special agent; an attorney with the District
 -5-
Attorney's office; Captain Jerry Hartman, the lead investigator

for the Davie County Sherriff's Office; and "Mr. Marks" to

discuss the feasibility of plaintiff's version of events leading

to Mrs. Turner's death. At that meeting, the men theorized that

plaintiff killed Mrs. Turner as part of an elaborate scheme in

which plaintiff stabbed himself with the spear and staged the

scene to make it look like self defense. To prove this theory,

defendants needed to show that the transfer blood stain on

plaintiff's shirt was not a mirror image stain from plaintiff's

hand, but rather a transfer pattern consistent with plaintiff

wiping his knife off on his shirt.

Defendants Thomas and Deaver, with the approval of their

supervisor (defendant Pendergraft), then "wantonly and

maliciously conducted unscientific tests to 'shore up' the new

theory." In conducting the new tests, defendant Thomas retook

samples of evidence but failed to properly label his work, and

he failed to make a record of his new theory. Defendants Thomas

and Deaver videotaped themselves conducting unscientific

experiments to try to obtain a blood smear from a knife similar

to the smear on plaintiff's shirt. After several attempts,

defendants obtained a smear with a knife that looked similar to

the smear on plaintiff's shirt. At that point in the video,

defendant Deaver can be heard saying, "'Oh, even better! Holy
 -6-
cow, that was a good one!' and 'Beautiful! That's a wrap,

baby!'"

After conducting the new tests and reviewing the evidence a

second time, defendant Thomas created a second report

purportedly discussing the "examination of clothing for

bloodstain patterns on Friday, September 14, 2007," even though

the actual date of the examination was 15 January 2008. The

second report altered the first report by replacing "'consistent

with a bloody hand wiped on the shirt' with 'consistent with a

pointed object being wiped on the shirt.'"

Stuart James of Fort Lauderdale, Florida, disagreed with

Thomas and Deaver's blood stain analysis and believed that the

blood stain was most likely a "'mirror stain'" created when the

shirt was folded after the shirt was cut off or when it was

tossed on the floor.1 Thomas, however, wrote in his report that

Captain Hartman "'was present when emergency services cut the

gray T-shirt from Mr. Turner's body and that the question [sic]

blood stain was observed present in its current condition on the

shirt. Hartman said that he took the shirt from Emergency

1
It is unclear from the complaint when and in what form
Stuart James offered this opinion, whether he testified at
plaintiff's criminal trial, what his credentials were, or how he
came to be involved in the case.
 -7-
Medical Services and placed it in a secure area [an adjacent

room], laying flat on the floor to dry.'"2

Plaintiff's trial began on 27 July 2009. Defendant Thomas

testified at trial consistent with what he had written in his

report. Captain Hartman testified, however, that he did not

arrive at the crime scene until two hours after EMTs took

plaintiff to the hospital and that he was not present when EMTs

removed the shirt. Additionally, initial crime scene photos

showed that the t-shirt was crumpled on the floor, inside out.

The jury returned a verdict of not guilty of murder by

reason of self defense on 21 August 2009. On 14 November 2011,

plaintiff filed a complaint against defendants Thomas, Deaver,

Pendergraft, and John and Jane Doe in a case docketed as 11 CVS

7812. Defendant Pendergraft is the Director of the SBI, and

defendants John and Jane Doe are supervisors for the SBI. On 4

April 2012, plaintiff voluntarily dismissed his complaint in 11

CVS 7812, and filed the complaint which is the subject of this

appeal.

Plaintiff's complaint alleges several causes of action

against defendants. As to defendants Thomas and Deaver in their

2
The complaint does not specify when Thomas added this
information to the report, but it could be read to imply that
Thomas wrote this in his second report in response to Stuart
James' opinion in an effort to discredit it, but the complaint
is vague in this regard.
 -8-
individual capacities, the complaint alleges claims for (1)

IIED, (2) Abuse of Process, (3) Malicious Prosecution, and (4)

False Imprisonment. As for defendants Pendergraft and Jane and

John Doe, plaintiff brought a claim of negligence for their

failure to properly train, supervise, and direct defendants

Thomas and Deaver. Finally, the complaint asserts claims under

42 U.S.C. § 1983 against all defendants in both their individual

and official capacities, and a claim against all defendants in

their official capacities for violation of Article I § 19 of the

North Carolina Constitution.

Defendants filed motions to dismiss pursuant to Rules

12(b)(1), 12(b)(6), and 12(b)(7). After a hearing on 8 April

2013, the trial court entered an order granting defendants'

motions. In the order, the trial court found that plaintiff

conceded to the dismissal of all claims against John and Jane

Doe and to the dismissal of the 42 U.S.C. § 1983 claim against

all defendants in their official capacities. The order

concluded that "Plaintiff's complaint should be dismissed as to

all Defendants for lack of subject matter jurisdiction and for

failure to state a claim upon which relief can be granted." In

light of this conclusion, the trial court found it "unnecessary

to consider the Defendant's Motion to Dismiss for failure to
 -9-
join necessary parties pursuant to 12(b)(7)." Plaintiff timely

appealed the order to this Court.

Discussion

On appeal, plaintiff argues that the trial court should not

have dismissed the claims of malicious prosecution, abuse of

process, IIED, and false imprisonment against defendants Thomas

and Deaver, or the 42 U.S.C. § 1983 claims against defendants

Thomas, Deaver, and Pendergraft in their individual capacities.

Plaintiff does not challenge the dismissal of the remaining

claims including all the claims against defendants John and Jane

Doe, and the negligence claim against Pendergraft. Accordingly,

we affirm the dismissal of those claims. See N.C.R. App. P.

28(a).

Standard of Review

"The motion to dismiss under N.C. R. Civ. P. 12(b)(6) tests

the legal sufficiency of the complaint. In ruling on the motion

the allegations of the complaint must be viewed as admitted, and

on that basis the court must determine as a matter of law

whether the allegations state a claim for which relief may be

granted." Stanback v. Stanback, 297 N.C. 181, 185, 254 S.E.2d

611, 615 (1979) (internal citation omitted), disapproved of on

other grounds by Dickens v. Puryear, 302 N.C. 437, 276 S.E.2d

325 (1981). Generally, "'a complaint should not be dismissed
 -10-
for insufficiency unless it appears to a certainty that

plaintiff is entitled to no relief under any state of facts

which could be proved in support of the claim.'" Id. (quoting

2A Moore's Federal Practice, § 12.08 (2d ed. 1975)). "This

Court must conduct a de novo review of the pleadings to

determine their legal sufficiency and to determine whether the

trial court's ruling on the motion to dismiss was correct."

Leary v. N.C. Forest Prods., Inc., 157 N.C. App. 396, 400, 580

S.E.2d 1, 4, aff’d per curiam, 357 N.C. 567, 597 S.E.2d 673

(2003).

I. Plaintiff's State Law Claims

Plaintiff sued defendants Thomas and Deaver for malicious

prosecution, abuse of process, IIED, and false imprisonment.

Defendants moved to dismiss these claims on the basis of the

statute of limitations, failure to state a claim, and public

official immunity.3

With respect to the statute of limitations, the parties

agree that the statute of limitations for each of the state law

claims is three years, N.C. Gen. Stat. § 1-52 (2013), and that

3
In his complaint, plaintiff sought to impose liability on
defendant Pendergraft for defendants Thomas and Deaver's actions
based on a claim of negligent supervision and training.
Plaintiff does not, however, on appeal challenge the trial
court's dismissal of that negligence claim. Plaintiff has,
therefore, chosen not to proceed with any state law claim
against defendant Pendergraft.
 -11-
plaintiff initiated this action on 14 November 2011. Therefore,

any cause of action that accrued prior to 14 November 2008 is

barred by the statute of limitations.

A. Malicious Prosecution

"In order to recover in an action for malicious

prosecution, plaintiff must establish that defendant: (1)

instituted, procured or participated in the criminal proceeding

against plaintiff; (2) without probable cause; (3) with malice;

and (4) the prior proceeding terminated in favor of plaintiff."

Williams v. Kuppenheimer Mfg. Co., 105 N.C. App. 198, 200, 412

S.E.2d 897, 899 (1992). In this case, defendant does not

dispute that the prior proceeding terminated in favor of

plaintiff in August 2009 when plaintiff was acquitted of first

degree murder.

Because the prior proceeding terminated within three years

of the initiation of this lawsuit, plaintiff's malicious

prosecution claim is not barred by the statute of limitations.

Defendants argue, however, that the trial court correctly

dismissed this claim because plaintiff's complaint does not

sufficiently allege facts to support the first three elements of

malicious prosecution.

1. Institution, Procurement, or Participation in the
Criminal Proceeding
 -12-
Defendants Thomas and Deaver argue that plaintiff's

complaint fails to adequately allege the element of initiation,

procurement, or participation in the criminal proceeding because

"there are no allegations that any of the named defendants

personally played any role in presenting the case to the grand

jury or in initiating criminal process against the plaintiff.

In addition, defendants did not engage in the actions of which

plaintiff specifically complains . . . until several months

after plaintiff's arrest and release on bond."

However, regarding this first element of a malicious

prosecution cause of action, this Court has recognized:

[W]hen discussing the tort of malicious
prosecution generally, our cases indicate a
liberal reading of the requirement that the
defendant have "initiated" the earlier
proceeding. For example, while some of our
decisions involving a claim based upon a
prior criminal action have stated a
plaintiff must prove the defendant initiated
the prior criminal proceeding, see, e.g.,
Alt v. Parker, 112 N.C. App. 307, 312, 435
S.E.2d 773, 776 (1993), disc. review denied,
335 N.C. 766, 442 S.E.2d 507 (1994), and
others have said a plaintiff must show
defendant instituted the prior proceeding,
see, e.g., Juarez-Martinez v. Deans, 108
N.C. App. 486, 491, 424 S.E.2d 154, 157,
disc. review denied, 333 N.C. 539, 429
S.E.2d 558 (1993), still others have held a
plaintiff must establish that the defendant
"instituted, procured or participated in the
criminal proceeding against plaintiff."
Williams, 105 N.C. App. at 200, 412 S.E.2d
at 899 (citation omitted) (emphasis added).
 -13-
Moore v. City of Creedmoor, 120 N.C. App. 27, 38, 460 S.E.2d

899, 906 (1995), aff'd in part, rev'd in part on other grounds,

345 N.C. 356, 481 S.E.2d 14 (1997).

Thus, Moore recognized that a showing that a defendant

"'participated in the criminal proceeding'" is sufficient to

establish the first element of a malicious prosecution claim for

relief. Id. (emphasis omitted) (quoting Williams, 105 N.C. App.

at 200, 412 S.E.2d at 899). Although defendants refer to the

inadequacy of plaintiff's allegations regarding "defendants'

participation in the procurement of the indictment" (emphasis

added), Moore's holding allowing for a showing of participation

in a criminal proceeding generally necessarily contemplates

participation after the proceeding has been initiated or

instituted. Defendants' interpretation improperly merges

participation into procurement and eliminates one of the three

alternative ways that this Court has stated that this element

may be established.

Allowing this element to be established by a showing of

participation in the criminal proceeding is consistent with the

Restatement (Second) of Torts, which indicates that "[a] private

person who takes an active part in continuing or procuring the

continuation of criminal proceedings initiated by himself or by

another is subject to the same liability for malicious
 -14-
prosecution as if he had then initiated the proceedings."

Restatement (Second) Torts § 655 (1977) (emphasis added). This

rule "applies . . . when the proceedings are initiated by a

third person, and the defendant, knowing that there is no

probable cause for them, thereafter takes an active part in

procuring their continuation." Id., cmt. b.

Although we have not found any North Carolina cases

specifically addressing what facts are necessary to show that a

defendant sufficiently participated in a criminal proceeding to

support a claim for malicious prosecution, we believe that

Williams is instructive. In Williams, this Court explained that

"[t]he act of giving honest assistance and information to

prosecuting authorities does not render one liable for malicious

prosecution." 105 N.C. App. at 201, 412 S.E.2d at 900.

There, this Court held that the plaintiff presented

sufficient evidence of the first element of malicious

prosecution when

the jury could find defendant's actions went
further than merely providing assistance and
information. Defendant brought all the
documents used in the prosecution to the
police. As discussed earlier, these
documents included the eleven suspicious
void sales, the three suspicious alteration
tickets, and the names and addresses of
witnesses to be contacted. From the record
it appears the only additional investigation
undertaken by the authorities was to contact
the three individuals who had suspicious
 -15-
alterations performed. Law enforcement
officials never interviewed other customers,
store employees or plaintiff prior to the
time of his arrest. Except for the efforts
of defendant, it is unlikely there would
have been a criminal prosecution of
plaintiff.

Id. It follows from this reasoning that once criminal

proceedings have been initiated, the first element of malicious

prosecution can be established by a showing that defendant

participated in the criminal proceedings if "[e]xcept for the

efforts of defendant, it is unlikely" that the criminal

prosecution would have continued against defendant. Id.

In this case, the complaint alleges that defendants Thomas

and Deaver met with a member of the District Attorney's office

in January 2008 to help formulate a theory in support of the

first degree murder charge. Defendants theorized that Mrs.

Turner did not attack plaintiff, but rather that plaintiff

stabbed himself with the spear and staged the scene to look like

self defense as part of an elaborate scheme.

The complaint further alleges that defendants then devised

and executed unscientific tests designed specifically to support

the theory, and defendant Thomas altered his initial report to

reflect their new findings arising out of those tests.

Significantly, the complaint alleges that "[t]his evidence was

crucial to maintain probable cause for a first-degree murder
 -16-
charge." Thus, plaintiff has sufficiently alleged that

defendants participated in the criminal proceedings by alleging

facts that tend to show that "[e]xcept for the efforts of

defendant[s], it is unlikely" that the proceedings would have

continued against plaintiff. Id.

Accordingly, we hold that plaintiff's complaint

sufficiently alleges the first element of malicious prosecution.

See also Pierce v. Gilchrist, 359 F.3d 1279, 1291 (10th Cir.

2004) (applying common law elements of malicious prosecution to

§ 1983 claim and holding allegations sufficient to survive

motion to dismiss when complaint alleged that, after plaintiff's

arrest, defendant forensic analyst "'contrived evidence to

secure a fraudulent conviction'" by creating forensic report

that was false, without any scientific basis, and in disregard

of exculpatory evidence).

2. Probable Cause

Defendants further argue that dismissal was proper because

plaintiff's allegation that there was no probable cause to

initiate or pursue criminal charges against plaintiff is

impermissibly conclusory and need not be taken as true in

considering the motion to dismiss. However, this Court has

recognized that "[w]ith the adoption of 'notice pleading,' mere

vagueness or lack of detail is no longer ground for allowing a
 -17-
motion to dismiss." Gatlin v. Bray, 81 N.C. App. 639, 644, 344

S.E.2d 814, 817 (1986) (quoting Sutton v. Duke, 277 N.C. 94,

102, 176 S.E.2d 161, 165 (1970)). Rather, "'[p]leadings comply

with our present concept of notice pleading if the allegations

in the complaint give defendant sufficient notice of the nature

and basis of plaintiffs' claim to file an answer, and the face

of the complaint shows no insurmountable bar to recovery.'" Id.

(quoting Rose v. Guilford Cnty., 60 N.C. App. 170, 173, 298

S.E.2d 200, 202 (1982)).

Under the North Carolina standard for motions to dismiss,

plaintiff's allegation that there was no probable cause is

sufficient unless the facts alleged in the complaint

conclusively establish that there was probable cause or that

there does not exist "'any state of facts which could be proved

in support of'" the allegation of lack of probable cause.

Stanback, 297 N.C. at 185, 254 S.E.2d at 615 (emphasis omitted)

(quoting 2A Moore's Federal Practice, § 12.08). "'The test for

determining probable cause is whether a man of ordinary prudence

and intelligence under the circumstances would have known that

the charge had no reasonable foundation.'" Strickland v.

Hedrick, 194 N.C. App. 1, 17, 669 S.E.2d 61, 71 (2008) (quoting

Becker v. Pierce, 168 N.C. App. 671, 677, 608 S.E.2d 825, 829-30

(2005)).
 -18-
Defendants argue that the complaint's allegations that (1)

plaintiff "grabbed a pocketknife from his right front pocket and

made two cuts in rapid succession to Jennifer Turner's neck area

which resulted in her death[,]" and (2) plaintiff was arrested

pursuant to a grand jury indictment conclusively establish the

existence of probable cause in this case. We disagree.

First degree murder is the intentional and unlawful killing

of a human being with premeditation and deliberation. N.C. Gen.

Stat. § 14-17 (2013). The allegation that plaintiff killed Mrs.

Turner with a pocket knife, standing alone, is insufficient to

establish probable cause that plaintiff acted with malice,

premeditation, and deliberation as a matter of law. In

determining probable cause, the totality of the circumstances

must be considered. Here, the complaint, when viewed in the

light most favorable to plaintiff, shows that plaintiff

accompanied his friend to Mrs. Turner's residence in order to

help his friend retrieve personal property being stored there.

While plaintiff talked to Mrs. Turner, she picked up a large

spear and attacked plaintiff, stabbing him several times. In

response, plaintiff retrieved a pocketknife from his front

pocket and cut Mrs. Turner twice in the neck.

These allegations are consistent with plaintiff's claim

that he only acted in self defense and did not stab Mrs. Turner
 -19-
with malice, premeditation, and deliberation. When viewed in

the light most favorable to plaintiff, the facts alleged in the

complaint do not establish as a matter of law that there was

probable cause to arrest plaintiff for first degree murder.

In support of their argument that the indictment

conclusively establishes probable cause, defendants cite

Stanford v. Grocery Co., 143 N.C. 419, 426, 55 S.E. 815, 817

(1906), which holds that that a true bill of indictment against

a criminal defendant returned by a grand jury is prima facie

evidence of probable cause. However, "[w]hile our Supreme Court

has said that both a grand jury indictment and a waiver of a

preliminary hearing in a criminal action establish a prima facie

showing of probable cause, nevertheless, such a finding or

waiver is not conclusive in a subsequent malicious prosecution

action, and the question of probable cause is still an issue for

the jury." Williams, 105 N.C. App. at 201, 412 S.E.2d at 900.

The indictment, therefore, only creates an issue of fact for the

jury to determine with respect to the issue of probable cause.

Accordingly, we conclude that plaintiff's complaint sufficiently

alleges a lack of probable cause.

3. Malice

Defendants similarly argue that plaintiff's allegation that

defendants acted maliciously is impermissibly conclusory and not
 -20-
supported by the facts alleged. However, in a malicious

prosecution claim, "malice may be inferred from want of probable

cause." Cook v. Lanier, 267 N.C. 166, 170, 147 S.E.2d 910, 914

(1966). Additionally, "'[e]vidence that the chief aim of the

prosecution was to accomplish some collateral purpose, or to

forward some private interest . . . is admissible both to show

the absence of probable cause and to create an inference of

malice, and such evidence is sufficient to establish a prima

facie want of probable cause.'" Id. (quoting Dickerson v. Atl.

Ref. Co., 201 N.C. 90, 95, 159 S.E. 446, 449 (1931)).

Plaintiff alleged that defendants acted with malice,

without probable cause, and for the ulterior purposes of

political gain and advancing their careers. These allegations

are sufficient under Cook to establish the element of malice.

Although defendants suggest that acting for political gain does

not constitute a "collateral purpose" that may raise an

inference of malice and a lack of probable cause, they have

cited no authority to support such a limitation. As explained

by our Supreme Court in Dickerson, "[t]he reason for holding

that proof of a collateral purpose is sufficient to make out a

prima facie want of probable cause is based upon the hypothesis

that a person, bent on accomplishing some ulterior motive, will

act upon much less convincing evidence than one whose only
 -21-
desire is to promote the public good." 201 N.C. at 95, 159 S.E.

at 450. We see no reason why this rationale does not apply when

the ulterior motive is to obtain political gain.

In sum, we conclude that the complaint sufficiently alleges

the essential elements of malicious prosecution. Therefore, the

trial court erred in dismissing the claim of malicious

prosecution as to defendants Thomas and Deaver.

B. Abuse of Process

"'[A]buse of process is the misuse of legal process for an

ulterior purpose. It consists in the malicious misuse or

misapplication of that process after issuance to accomplish some

purpose not warranted or commanded by the writ. It is the

malicious perversion of a legally issued process whereby a

result not lawfully or properly obtainable under it is attended

(sic) to be secured.'" Stanback, 297 N.C. at 200, 254 S.E.2d at

624 (quoting Fowle v. Fowle, 263 N.C. 724, 728, 140 S.E.2d 398,

401 (1965)).

More recently, this Court has explained:

"[A]buse of process requires both an
ulterior motive and an act in the use of the
legal process not proper in the regular
prosecution of the proceeding, and that
[b]oth requirements relate to the
defendant's purpose to achieve through the
use of the process some end foreign to those
it was designed to effect. The ulterior
motive requirement is satisfied when the
plaintiff alleges that the prior action was
 -22-
initiated by defendant or used by him to
achieve a collateral purpose not within the
normal scope of the process used. The act
requirement is satisfied when the plaintiff
alleges that once the prior proceeding was
initiated, the defendant committed some
wilful act whereby he sought to use the
existence of the proceeding to gain
advantage of the plaintiff in respect to
some collateral matter."

Chidnese v. Chidnese, 210 N.C. App. 299, 310-11, 708 S.E.2d 725,

734-35 (2011) (quoting Stanback, 297 N.C. at 201, 254 S.E.2d at

624). "There is no abuse of process where it is confined to its

regular and legitimate function in relation to the cause of

action stated in the complaint." Mfrs. & Jobbers Fin. Corp. v.

Lane, 221 N.C. 189, 196-97, 19 S.E.2d 849, 853 (1942).

Here, plaintiff alleged that defendants Thomas and Deaver

"intentionally and maliciously used their positions as Special

Agents with the SBI, tasked with the official duty of

investigating the death of Jennifer Wittwer Turner, to obstruct

justice and 'frame' Dr. Kirk Turner for the first-degree murder

of his wife Jennifer Turner after Dr. Kirk Turner was indicted.

This was done for the improper purpose of political benefit, and

to ensure a conviction in a high profile case where it would be

unpopular for the district attorney to enter a dismissal of

charges." The complaint additionally alleged that defendants'

"actions were undertaken for an ulterior motive, that is to

secure a conviction of a high publicity murder case regardless
 -23-
of guilt to further the careers of the Defendants and to assist

the District Attorney in winning a very public case for

political purposes with no regard to the defendant's guilt or

innocence."

These allegations are insufficient to support an abuse of

process claim because the improper purpose alleged -- securing

plaintiff's conviction -- is within the intended scope of

criminal proceedings. It, therefore, fails to meet the

requirement that a defendant use the process to achieve a result

"not warranted or commanded by the writ" and "not lawfully or

properly obtainable" by the process. Fowle, 263 N.C. at 728,

140 S.E.2d at 401. Accordingly, we affirm the trial court's

dismissal of plaintiff's abuse of process claim under Rule

12(b)(6). See also Scott v. District of Columbia, 101 F.3d 748,

756 (D.C. Cir. 1996) (holding that when "officers instituted the

criminal charge for precisely the purpose for which it was

intended [--] establishing that [plaintiff] was guilty of a

criminal offense" -- "fact that the officers expected to realize

some benefit by covering up their own alleged wrongdoing simply

points to an ulterior motive, not the kind of perversion of the

judicial process that gives rise to a cause of action for abuse

of process").4

4
Because of this holding, we need not address whether the
 -24-
C. Intentional Infliction of Emotional Distress

The essential elements of a claim for IIED are "(1) extreme

and outrageous conduct, (2) which is intended to cause and does

cause (3) severe emotional distress to another." Dickens, 302

N.C. at 452, 276 S.E.2d at 335. "The tort may also exist where

defendant's actions indicate a reckless indifference to the

likelihood that they will cause severe emotional distress." Id.

1. Statute of Limitations

This Court has stated that a cause of action for IIED "does

not come into existence until the continued conduct of the

defendant causes extreme emotional distress." Bryant v.

Thalhimer Bros., Inc., 113 N.C. App. 1, 12, 437 S.E.2d 519, 525

(1993). In Bryant, the plaintiff sued her former employer for

IIED based upon allegations of sexual harassment that began more

than three years prior to her initiation of the lawsuit. Id. at

3, 437 S.E.2d at 521. The defendant raised the defense of the

three-year statute of limitations and argued that the statute

barred recovery for events occurring more than three years prior

to the filing of the lawsuit. Id. at 4, 437 S.E.2d at 521. The

trial court denied the defendant's motion for summary judgment

and motion in limine to bar evidence of events occurring outside

of the period of the statute of limitations. Id. A jury

claim is barred by the statute of limitations.
 -25-
returned a verdict in favor of the plaintiff on the IIED claim,

and the defendant appealed. Id.

On appeal, this Court rejected the defendant's contention

that "the acts of [the defendant] that occurred prior to

December 1986 are barred by the three-year statute" because

"[i]f all of the elements of the tort [are] not present, then no

cause of action for intentional infliction of emotional distress

exist[s] at that time." Id. at 13, 437 S.E.2d at 526. The

Court explained:

The statutes of limitations serve to bar
claims, not evidence of contributing factors
to an ultimate claim that has not yet come
into existence. "As our courts have
frequently noted, in no event can a statute
of limitations begin to run until the
plaintiff is entitled to institute action. .
. . Ordinarily, the period of the statute
of limitations begins to run when the
plaintiff's right to maintain an action for
the wrong alleged accrues. The cause of
action accrues when the wrong is complete. .
. ." Obviously, outrageous conduct by the
defendant alone would confer no cause of
action on the plaintiff in the case until
she suffered extreme emotional distress
caused by his actions.

Id. (quoting Bolick v. Am. Barmag Corp., 54 N.C. App. 589, 594,

284 S.E.2d 188, 191, decision modified on other grounds, 306

N.C. 364, 293 S.E.2d 415 (1981)). This Court held that because

the plaintiff's cause of action did not accrue until "the

actions of the defendant did in fact cause emotional distress of
 -26-
the calibre set out in Waddle [v. Sparks, 331 N.C. 73, 414

S.E.2d 22 (1992),]" the trial court did not err in denying the

defendant's motion in limine. Id.

In Waddle, the Supreme Court adopted the same standard for

the element of "severe emotional distress" in an IIED claim as

required for a claim of negligent infliction of emotional

distress:

"the term 'severe emotional distress' means
any emotional or mental disorder, such as,
for example, neurosis, psychosis, chronic
depression, phobia, or any other type of
severe and disabling emotional or mental
condition which may be generally recognized
and diagnosed by professionals trained to do
so."

331 N.C. at 83, 414 S.E.2d at 27 (quoting Johnson v. Ruark

Obstetrics & Gynecology Assoc., 327 N.C. 283, 304, 395 S.E.2d

85, 97 (1990)).

Here, plaintiff's complaint alleges that plaintiff "did in

fact suffer severe emotional distress as a direct and proximate

result of the actions of the defendants which first manifested

themselves in diagnosable form following his acquittal for first

degree murder . . . ." Defendant was acquitted in August 2009,

within the three-year statute of limitations before plaintiff

filed the complaint in November 2011. Because plaintiff's cause

of action could not accrue until he suffered severe emotional

distress, and the complaint alleges that did not happen until
 -27-
after August 2009, this cause of action as to both defendants

Thomas and Deaver is not barred by the statute of limitations.

See also Ruff v. Reeves Bros., Inc., 122 N.C. App. 221, 227, 468

S.E.2d 592, 597 (1996) (applying Bryant and holding that

"plaintiff's cause of action did not accrue until the actions of

the defendant did, in fact, cause severe emotional distress").

2. Failure to State a Claim for Relief

Defendants argue that plaintiff's complaint fails to allege

sufficient facts to show that defendants engaged in extreme and

outrageous conduct, the first element of IIED. "[T]he initial

determination of whether conduct is extreme and outrageous is a

question of law for the court: 'If the court determines that it

may reasonably be so regarded, then it is for the jury to decide

whether, under the facts of a particular case, defendants'

conduct . . . was in fact extreme and outrageous.'" Johnson v.

Bollinger, 86 N.C. App. 1, 6, 356 S.E.2d 378, 381-82 (1987)

(quoting Briggs v. Rosenthal, 73 N.C. App. 672, 676, 327 S.E.2d

308, 311 (1985)).

"'Conduct is extreme and outrageous when it is so

outrageous in character, and so extreme in degree, as to go

beyond all possible bounds of decency, and to be regarded as

atrocious, and utterly intolerable in a civilized community.'"

Johnson v. Colonial Life & Accident Ins. Co., 173 N.C. App. 365,
 -28-
373, 618 S.E.2d 867, 872 (2005) (quoting Guthrie v. Conroy, 152

N.C. App. 15, 22, 567 S.E.2d 403, 408-09 (2002)). "[T]his Court

has set a high threshold for a finding that conduct meets the

standard." Dobson v. Harris, 134 N.C. App. 573, 578, 521 S.E.2d

710, 715 (1999), rev'd on other grounds, 352 N.C. 77, 530 S.E.2d

829 (2000). "'The liability clearly does not extend to mere

insults, indignities, threats, annoyances, petty oppressions, or

other trivialities.'" Briggs, 73 N.C. App. at 677, 327 S.E.2d

at 311 (quoting Restatement (Second) of Torts § 46 cmt. d.).

We believe that the allegations in the complaint in this

case are similar to the facts of West v. King's Dep't Store,

Inc., 321 N.C. 698, 365 S.E.2d 621 (1988). In West, a store

manager falsely accused the plaintiffs of stealing from his

store, despite the plaintiffs producing a receipt of their

purchase and verification from the cashier of the sale. Id. at

700-01, 365 S.E.2d at 622-23. In concluding that the evidence

of the store manager's conduct was sufficient to go to the jury

on the claim of IIED, the Supreme Court cited favorably Judge

Phillips' dissent from the majority opinion of this Court that

"[f]ew things are more outrageous and more
calculated to inflict emotional distress on
innocent store customers that have paid
their good money for merchandise and have in
hand a document to prove their purchase than
for the seller or his agent, disdaining to
even examine their receipt, to repeatedly
tell them in a loud voice in the presence of
 -29-
others that they stole the merchandise and
would be arrested if they did not return
it."

Id. at 705, 365 S.E.2d at 625 (quoting West v. King's, 86 N.C.

App. 485, 358 S.E.2d 386 (1987) (Phillips, J., dissenting)

(unpublished)).

Similarly, here, when viewed in the light most favorable to

plaintiff, the complaint alleges facts showing that plaintiff's

prosecution was highly publicized and he was accused of a crime

he did not commit. While in West, the defendant refused to even

look at evidence that would have established that the plaintiffs

had not stolen anything, here, the allegations of the complaint,

viewed in the light most favorable to plaintiff, allege that

defendants Thomas and Deaver -- public officers -- essentially

manufactured evidence to negate plaintiff's self defense claim

by (1) performing unscientific tests designed to prove a theory

that plaintiff's stab wounds were self-inflicted and the scene

staged to look like self defense; (2) creating a second report

supporting that theory that was inconsistent with his first

report; (3) writing the second report in a manner that hid the

existence of the first report by falsely suggested the second

report was the result of examination of the evidence of four

months earlier (when the first report was done) and by not

indicating that the second report was an amendment or supplement
 -30-
to the first report; and (4) bolstering the theory by making

false statements in the second report and in testimony regarding

what the Sheriff's Office lead investigator had said. We

believe that allegations that defendants falsely created

evidence to establish guilt equates with the West defendant's

refusal to look at evidence that would have exonerated the

plaintiffs.

The Court in West also noted that the foreseeability of

injury is a factor that goes to the outrageousness of a

defendant's conduct. Id. It stands to reason that the more

serious the crime of which someone is falsely accused and the

more credible the accusers, the more foreseeable the mental

anguish resulting therefrom. Here, the crime of which plaintiff

was accused, first degree murder, is a much more serious offense

than the crime of which the plaintiff in West was accused and

the accusers -- experienced special agents of the SBI -- more

credible to the public than the store manager in West.

Therefore, the nature of the crime and the identity of the

defendants in this case are factors that may be considered in

assessing the outrageousness of defendants' conduct.

Defendants, however, argue that plaintiff's allegations do

not differ substantially from the conduct in Dobson. In Dobson,

a department store employee reported a customer to the
 -31-
Department of Social Services ("DSS") for child abuse after the

customer "yelled at the [15-month-old] child, picked her off the

counter where she had been sitting, and set her back down hard."

134 N.C. App. at 575, 521 S.E.2d at 713. The investigation

against the customer was terminated when DSS was unable to

substantiate the employee's claims, and the customer sued the

employee for IIED. Id. In holding that summary judgment was

properly granted in favor of the defendant employee, this Court

explained:

Assuming arguendo that defendant [employee]
exaggerated or fabricated the events she
reported to DSS, the report served only to
initiate an investigatory process. Although
falsely reporting child abuse wastes the
limited resources available to DSS and
subjects the reported parent to questioning
and investigation, in light of this Court's
precedent, we cannot say that such actions
constitute "extreme and outrageous conduct"
which is "utterly intolerable in a civilized
community."

Id. at 578-79, 521 S.E.2d at 715 (quoting Briggs, 73 N.C. App.

at 677, 327 S.E.2d at 311).

In Dobson, the defendant was a private citizen whose false

accusations of criminal conduct merely served to initiate an

investigatory process. The defendant's conduct in Dobson was

not considered outrageous in part due to the existence of an

independent investigatory process that served to protect the

plaintiff from further proceedings based on false accusations.
 -32-
In contrast, here, defendants are agents of the SBI who have an

official duty to investigate allegations of criminal conduct and

discover the truth. They are the individuals who are supposed

to be conducting the independent investigatory process that

would protect plaintiff from false accusations. When those

individuals generate unsupported accusations, then the accused -

- in this case, plaintiff -- is subjected to public condemnation

of him as a murderer and is not merely subjected to an

investigation. As a result, defendants' misconduct is more

likely to result in the initiation or continuation of publicized

criminal proceedings than false accusations by private citizens.

Thus, we believe that defendants' status as SBI agents

distinguishes this case from Dobson.

While not binding authority, we note that other

jurisdictions have found that similar conduct by police officers

could be found by a reasonable jury to be sufficiently

outrageous to support an IIED claim. See Limone v. United

States, 579 F.3d 79, 99 (1st Cir. 2009) (conclusion that FBI

engaged in extreme and outrageous conduct supported by findings

that FBI knew that "scapegoats" were not involved in murder

"from the moment that [an informant] implicated them" and that

"FBI agents nonetheless assisted [the informant] in embellishing

his apocryphal tale, helped him to sell that tale to state
 -33-
authorities and the jury, and covered up their perfidy by

stonewalling the scapegoats' petitions for post-conviction

relief."); Pitt v. District of Columbia, 491 F.3d 494, 506 (D.C.

Cir. 2007) (evidence that police officer's arrest affidavit

omitted exculpatory evidence and contained at least one false

statement, and evidence that one officer tampered with evidence

in attempt to link plaintiff to crime supported conclusion by

reasonable juror that conduct was sufficiently "outrageous" for

IIED claim); Wagenmann v. Adams, 829 F.2d 196, 214 (1st Cir.

1987) (holding that where evidence could support inference that

officers conspired to arrest plaintiff and have him committed

and were "determined to accomplish this objective at all costs

and by the nearest means, in manifest derogation of the

appellee's civil rights," trial court properly denied motion for

judgment notwithstanding the verdict on IIED claim).

We find the reasoning in these cases persuasive and

consistent with the analysis North Carolina courts have applied.

Accordingly, we hold that plaintiff's complaint sufficiently

alleges outrageous conduct and reverse the trial court's

dismissal of plaintiff's claim of IIED.

D. False Imprisonment

False imprisonment is "'the illegal restraint of a person

against his will.'" Moore v. Evans, 124 N.C. App. 35, 42, 476
 -34-
S.E.2d 415, 421 (1996) (quoting Marlowe v. Piner, 119 N.C. App.

125, 129, 458 S.E.2d 220, 223 (1995)). "A false arrest is an

arrest without legal authority and is one means of committing a

false imprisonment." Marlowe, 119 N.C. App. at 129, 458 S.E.2d

220 at 223.

Plaintiff contends that his release on house arrest

constituted false imprisonment. We disagree. As explained by

the Supreme Court of the United States:

False arrest and false imprisonment overlap;
the former is a species of the latter.
Every confinement of the person is an
imprisonment, whether it be in a common
prison or in a private house, or in the
stocks, or even by forcibly detaining one in
the public streets; and when a man is
lawfully in a house, it is imprisonment to
prevent him from leaving the room in which
he is. We shall thus refer to the two torts
together as false imprisonment. That tort
provides the proper analogy to the cause of
action asserted against the present
respondents for the following reason: The
sort of unlawful detention remediable by the
tort of false imprisonment is detention
without legal process[.]

. . . .

Reflective of the fact that false
imprisonment consists of detention without
legal process, a false imprisonment ends
once the victim becomes held pursuant to
such process -- when, for example, he is
bound over by a magistrate or arraigned on
charges. Thereafter, unlawful detention
forms part of the damages for the entirely
distinct tort of malicious prosecution,
which remedies detention accompanied, not by
 -35-
absence of legal process, but by wrongful
institution of legal process.

Wallace v. Kato, 549 U.S. 384, 388-90, 166 L. Ed. 2d 973, 980-

81, 127 S. Ct. 1091, 1095-96 (2007) (internal citations and

quotation marks omitted).

Plaintiff's complaint alleges that he was arrested only

after being indicted by a grand jury. He was then released on

house arrest. Plaintiff's complaint fails to allege that he was

confined without legal process or other legal authority. While

plaintiff's allegation that his detention and house arrest were

not supported by probable cause is sufficient to state a claim

for malicious prosecution, plaintiff has not, on appeal, cited

any authority that would allow him to also proceed with a false

imprisonment claim. Accordingly, we affirm the dismissal of

this claim.

E. Public Official Immunity

Public officials sued in their individual capacity are

entitled to public official immunity from claims in tort unless

their "conduct is malicious, corrupt, or outside the scope of

official authority." Epps v. Duke Univ., Inc., 122 N.C. App.

198, 205, 468 S.E.2d 846, 852 (1996). "[I]f a plaintiff wishes

to sue a public official in his personal or individual capacity,

the plaintiff must, at the pleading stage and thereafter,

demonstrate that the official's actions (under color of
 -36-
authority) are commensurate with one of the 'piercing'

exceptions." Id. at 207, 468 S.E.2d at 853. To withstand a

defendant's motion to dismiss a claim based on the defense of

public official immunity, the facts alleged in the complaint

must support a conclusion that one of the piercing exceptions

apply. Meyer v. Walls, 347 N.C. 97, 114, 489 S.E.2d 880, 890

(1997).

Here, plaintiff's complaint alleges that defendants'

conduct was willful, intentional, and malicious. As previously

discussed, the facts alleged support an inference that

defendants acted maliciously. Therefore, to the extent the

trial court dismissed the complaint based on public official

immunity with respect to the malicious prosecution and IIED

claims, the trial court erred.

II. Federal Constitutional Claims

Plaintiff argues that his complaint adequately alleged

facts to support a § 1983 claim for malicious prosecution

against defendants Thomas, Deaver, and Pendergraft in their

individual capacities. Plaintiff apparently bases the § 1983

claim upon a violation of plaintiff's Fourth Amendment right to

be free from unreasonable seizure, but otherwise makes no

attempt to distinguish the § 1983 malicious prosecution claim

from the state law malicious prosecution claim. Defendants
 -37-
argue, however, that they are entitled to qualified immunity for

this claim and that the trial court properly dismissed the claim

on this basis.

"The defense of qualified immunity shields government

officials from personal liability under § 1983 'insofar as their

conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have

known.'" Toomer v. Garrett, 155 N.C. App. 462, 473, 574 S.E.2d

76, 86 (2002) (quoting Andrews v. Crump, 144 N.C. App. 68, 75-

76, 547 S.E.2d 117, 122 (2001)). "The qualified immunity

inquiry requires a determination of whether the right at issue

was clearly established at the time it was allegedly violated."

Id. at 474, 574 S.E.2d at 87.

On appeal, plaintiff makes no argument that defendants

violated a clearly established constitutional right. Rather,

plaintiff, citing only Epps v. Duke Univ., Inc., 116 N.C. App.

305, 447 S.E.2d 444 (1994), confuses the doctrine of qualified

immunity with the doctrine of public official immunity, arguing

generally that because "[u]nder the facts alleged, the

Defendants could not have acted in good faith[,]" neither

immunity defense is available to defendants at this stage of the

proceeding.
 -38-
Plaintiff, therefore, does not make any relevant argument

or cite any authority in support of his assertion that

defendants are not entitled to qualified immunity for the § 1983

malicious prosecution claim. "Issues not presented in a party's

brief, or in support of which no reason or argument is stated,

will be taken as abandoned." N.C.R. App. P. 28(b)(6).

Accordingly, we affirm the trial court's dismissal of

plaintiff's § 1983 claims.

Conclusion

In sum, we reverse the trial court's dismissal of

plaintiff's state law malicious prosecution and IIED claims, as

neither of those claims are barred by the statute of limitations

or public official immunity and the allegations of the complaint

are legally sufficient to state a claim for relief. As to the

remaining claims, we affirm.

Affirmed in part; reversed in part.

Judges ROBERT C. HUNTER and McCULLOUGH concur.