Livingston v. Bakewell

An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA13-748
NORTH CAROLINA COURT OF APPEALS

Filed: 4 February 2014

CHRISTOPHER W. LIVINGSTON,
Plaintiff,

v. Wake County
No. 11 CVS 00015
CAROLIN D. BAKEWELL, Esq.;
MARGARET CLOUTIER, Esq.; CARMEN H.
BANNON, Esq.; In their Individual
and official capacities; and THE
NORTH CAROLINA STATE BAR,
Defendants.

Appeal by plaintiff from order entered 2 January 2013 by

Judge Donald W. Stephens in Wake County Superior Court. Heard

in the Court of Appeals 20 November 2013.

Christopher W. Livingston Esq., pro se.

The North Carolina State Bar, by Deputy Counsel David R.
Johnson and Counsel Katherine Jean, for defendant-appellee.

PER CURIAM.

Plaintiff Christopher Livingston appeals the order entered

2 January 2013 dismissing his complaint for failure to state a

claim pursuant to Rule 12(b)(6). On appeal, plaintiff contends

that the trial court erred as a matter of law in dismissing his
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claims. After careful review, we affirm the trial court’s

order.

Background

In his brief, plaintiff includes a great deal of facts that

are irrelevant to his appeal, including a vast history of

various lawsuits he has either filed or been a part of, none of

which are particularly pertinent to his issues on appeal.

However, the facts necessary to understand the issues on appeal

are the following: Mr. Livingston filed a lawsuit in Wake County

Superior Court on behalf of two individuals against Jessie

Riddle (“Mr. Riddle”), a Utah attorney, Mr. Riddle’s law firm,

and Capital Acquisitions and Management Company (“CAMCO”), an

Illinois company, alleging various causes of action based on

their debt collection actions. The matter was removed to the

U.S. District Court for the Eastern District of North Carolina.

Although Mr. Livingston filed his application for admission to

the U.S. District Court for the Eastern District of North

Carolina, he failed to take the oath of office as required by

court rules.

As the North Carolina case was progressing in District

Court, Mr. Riddle and his law firm commenced an action against

Mr. Livingston and his two clients in a Utah court. Mr.
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Livingston filed a motion in North Carolina District Court to

stay the Utah action. The matter came on for hearing before the

Honorable Terrence W. Boyle. Judge Boyle not only questioned

Mr. Livingston about his failure to take the oath of office in

order to be admitted in the Eastern District, but he also

criticized Mr. Livingston’s motives for filing the lawsuit.

After the hearing, Mr. Livingston filed a motion to disqualify

Judge Boyle which even Mr. Livingston characterized as

“unprofessional and extremely regrettable.”

Even though Mr. Livingston was not admitted to practice law

in Utah, he filed a pro se motion to dismiss or for summary

judgment on behalf of himself and his clients.

These incidents were reported to the North Carolina State

Bar (“the State Bar”), and it instituted a grievance

investigation. A complaint was filed with the Disciplinary

Hearing Commission (“the DHC”) alleging that Mr. Livingston

engaged in the unauthorized practice of law in both Utah and the

Eastern District and that he engaged in conduct prejudicial to

the administration of justice by filing an unprofessional motion

to recuse Judge Boyle. The DHC concluded that Mr. Livingston

violated Rule 5.5 of the Rules of Professional Conduct by

drafting motions on behalf of his clients for filing in Utah
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courts when he was not admitted to practice law there.

Moreover, the DHC found that Mr. Livingston engaged in the

unauthorized practice of law by appearing before Judge Boyle

without taking the oath of office. In noting that these

violations were minor, the DHC issued an admonition. With

regard to the motion to recuse Judge Boyle, the DHC found that,

although it was unprofessional, it did not constitute a

violation of the Rules of Professional Conduct and entered

summary judgment in favor of Mr. Livingston. See Order of

Discipline, State Bar v. Livingston, 06 DHC 11 (2008). Over the

next few years, the State Bar investigated several more

grievances against plaintiff. However, it does not seem that

these later grievances have any bearing on the current appeal.

On 31 August 2011, plaintiff filed an amended complaint

against the State Bar and Carolin Bakewell (“Ms. Bakewell”),

Marget Cloutier (“Ms. Cloutier”), and Carmen Bannon (“Ms.

Bannon”), in both their official capacities as counsel for the

State Bar and in their individual capacities asserting the

following causes of action: (1) monetary claims and a request

for injunctive relief pursuant to 42 U.S.C. § 1983; (2) tort

claims for malicious prosecution; and (3) direct state

constitutional claims based on violations of Art. 1, secs. 14,
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19, and 36 of our North Carolina Constitution. As an initial

matter, we note that plaintiff’s complaint is often confusing

and includes information related to lawsuits and cases he is

involved with that have nothing to do with the State Bar’s

prosecution of him. On 25 September 2012, defendants filed a

motion to dismiss based on Rule 12(b)(1), (2), and (6). The

matter came on for hearing on 11 December 2012. On 17 December

2012, the trial court entered an order dismissing all of

plaintiff’s claims against all defendants based on Rule

12(b)(6). Plaintiff timely appealed.

Arguments

Initially, we note that plaintiff’s arguments on appeal are

difficult to follow and often include no factual allegations to

support them. However, for the following reasons, we affirm the

trial court’s order as to each claim.

“When reviewing an order of dismissal for failure to state

a claim upon which relief may be granted pursuant to Rule

12(b)(6), we assess the legal sufficiency of the complaint while

taking all of the material factual allegations included therein

as true.” Charlotte Motor Speedway, LLC v. Cnty. of Cabarrus,

__ N.C. App. __, __, 748 S.E.2d 171, 175 (2013). “When

analyzing a 12(b)(6) motion, the [trial] court is to take all
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factual allegations as true, but should not presume legal

conclusions to be true.” Acosta v. Byrum, 180 N.C. App. 562,

567, 638 S.E.2d 246, 250 (2006). “Dismissal is proper when one

of the following three conditions is satisfied: (1) the

complaint on its face reveals that no law supports the

plaintiff's claim; (2) the complaint on its face reveals the

absence of facts sufficient to make a good claim; or (3) the

complaint discloses some fact that necessarily defeats the

plaintiff’s claim.” Bissette v. Harrod, __ N.C. App. __, __,

738 S.E.2d 792, 797 (internal quotation marks and citations

omitted), disc. review denied, __ N.C. __, 747 S.E.2d 251

(2013).

I. Plaintiff’s 42 U.S.C. § 1983 Claims

Suits for relief from federal constitutional violations are

authorized under Section 1983, which provides:

Every person who, under color of any
statute, ordinance, regulation, custom, or
usage, of any State or Territory or the
District of Columbia, subjects, or causes to
be subjected, any citizen of the United
States or other person within the
jurisdiction thereof to the deprivation of
any rights, privileges, or immunities
secured by the Constitution and laws, shall
be liable to the party injured in an action
at law, suit in equity, or other proper
proceeding for redress[.]

42 U.S.C. § 1983 (2000). “When Congress enacted 42 U.S.C. §
 -7-
1983, it conferred upon injured plaintiffs a federal remedy for

violations of federal constitutional rights committed by state

actors.” Gilbert v. N.C. State Bar, 363 N.C. 70, 79-80, 678

S.E.2d 602, 608 (2009). “Evaluation of the applicability of §

1983 claims to the State or state officials is generally

bifurcated according to the kind of relief requested.” Toomer

v. Garrett, 155 N.C. App. 462, 472, 574 S.E.2d 76, 86 (2002).

A. Plaintiff’s Request for Monetary Damages

With regard to monetary damages, our Supreme Court has

concluded that, “when an action is brought under section 1983 in

state court against the State, its agencies, and/or its

officials acting in their official capacities, neither a State

nor its officials acting in their official capacity are

‘persons’ under section 1983 when the remedy sought is monetary

damages.” Corum v. Univ. of N.C., 330 N.C. 761, 771, 413 S.E.2d

276, 282-83 (1992). Accordingly, with regards to plaintiff’s

claims for monetary damages against the State Bar and the other

defendants in their official capacities, plaintiff is not

entitled to relief as a matter of law. Thus, the trial court

did not err in dismissing these claims.

With regard to plaintiff’s claims against defendants in

their individual capacities, “public officials sued in their
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individual capacities for violations of § 1983 may be held

liable for monetary damages.” Toomer, 155 N.C. App. at 473,

574 S.E.2d at 86. However, defendants may under certain

circumstances raise the doctrine of qualified immunity. Id.

“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.’” Id.

Our Court has noted that:

Under the doctrine of qualified immunity,
government officials performing
discretionary functions generally are
shielded from liability for civil damages
insofar as their conduct does not violate
clearly established statutory or
constitutional rights of which a reasonable
person would have known. Resolution of
whether a government official is insulated
from personal liability by qualified
immunity turns on the objective legal
reasonableness of the official’s action
assessed in light of the legal rules that
were ‘clearly established’ at the time it
was taken.

Roberts v. Swain, 126 N.C. App. 712, 718, 487 S.E.2d 760, 765

(internal citations and quotation marks omitted), disc. review

denied, 347 N.C. 270, 493 S.E.2d 746 (1997).

Pursuant to N.C. Gen. Stat. § 84-23(a) (2013), the State

Bar was created by the Legislature to, among other things,
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regulate the professional conduct of attorneys. In order to do

so, the State Bar is tasked with investigating and prosecuting

matters of attorney misconduct. Id. The procedural rules that

the State Bar must follow in this effort are codified in the

North Carolina Administrative Code. See generally, 27 N.C.A.C.

Ch. 1, Sub. B, § .0100 et seq. (2013).

Here, in the complaint, plaintiff claims that the State Bar

“illegally harassed” him by: (1) not taking any action against

Judge Boyle; (2) taking the side of bill collectors and

corporate lawyers; (3) failing to take action against CAMCO and

Mr. Riddle’s law firm; (4) “obstructing consumer justice by

aiding and comforting scofflaw debt collectors and their

corporate lawyers”; (5) knowingly prosecuting plaintiff on a

false charge of UPL; (6) filing frivolous lawsuits against him;

and (7) acting unprofessionally and arrogantly when plaintiff

tried to discuss the case. While the complaint contains these

types of conclusory allegations, plaintiff provides no factual

basis for them. Moreover, based on our review, we conclude that

defendants’ actions were objectively reasonable and well within

their authority as set out in the administrative rules.

Therefore, defendants, in their individual capacities, are

entitled to the defense of qualified immunity with regard to
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plaintiff’s § 1983 claims against them.

B. Injunctive Relief

Finally, with regard to plaintiff’s request for injunctive

relief with regard to his § 1983 claims, “where a plaintiff

seeks injunctive relief against the State and its officials,

state officials acting in their official capacities are

considered ‘persons’ under § 1983.” Toomer, 155 N.C. App. at

472-73, 574 S.E.2d at 86. Furthermore, the defense of qualified

immunity is not available in suits for injunctive relief against

the State and its officials acting in their official capacities.

Corum, 330 N.C. at 772, 413 S.E.2d at 283.

In his complaint, plaintiff requests the trial court issue

a permanent injunction prohibiting the State Bar from continuing

with “meritless grievances” now pending against plaintiff and

“forbidding all future illegal harassment of [p]laintiff.”

While it is undisputed that injunctive relief may be an

available remedy for a plaintiff, here, the absence of factual

allegations necessary to establish defendants’ actions were such

that plaintiff was entitled to this type of relief defeats his

claim. The State Bar and the individual defendants, as counsel

for the State Bar, are statutorily required to regulate the

legal profession. While plaintiff may feel as if their
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prosecution of him was unreasonable, he has failed to include

the facts necessary to prove it. In contrast, nothing in

plaintiff’s complaint or in defendants’ motion to dismiss

indicates that defendants did not pursue their investigation

properly. Therefore, plaintiff is not entitled to prohibit the

State Bar from doing its job when its conduct was reasonable.

Accordingly, the trial court did not err in dismissing this

claim pursuant to Rule 12(b)(6).

II. Plaintiff’s Malicious Prosecution Claims

“Malicious prosecution is a theory applicable to criminal,

civil, and administrative proceedings that have been instituted

with malice and without probable cause.” Gilbert, 363 N.C. at

79, 678 S.E.2d at 607. In order to prevail, a plaintiff must

establish the following elements: “(1) the proceeding was

instituted maliciously; (2) without probable cause; and (3) has

terminated in favor of the person against whom it was

initiated.” Carver v. Lykes, 262 N.C. 345, 352, 137 S.E.2d 139,

145 (1964).

Plaintiff’s claim for malicious prosecution fails for two

reasons. First, there is no indication that defendants acted

without probable cause. In the case against plaintiff, the

Grievance Committee found probable cause and issued a censure.
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Plaintiff rejected the censure and requested a hearing before

the DHC. Based on that hearing, the DHC issued an admonition

based on plaintiff’s unauthorized practice of law in both Utah

and the Eastern District. While the DHC concluded that

plaintiff’s motion to recuse Judge Boyle did not violate the

Rules of Professional Conduct, even plaintiff characterized his

motion to recuse as “unprofessional.” Thus, while the DHC may

not have specifically disciplined plaintiff for his motion, his

own concession regarding the tone of it establishes that the

Grievance Committee had reason to believe that plaintiff had

violated the Rules of Professional Conduct.

Second, plaintiff has failed to include facts showing that

defendants acted with malice. “Malice in a malicious

prosecution claim may be shown by offering evidence that [a]

defendant was motivated by personal spite and a desire for

revenge or that [a] defendant acted with reckless and wanton

disregard for plaintiffs’ rights.” Kirschbaum v. McLaurin

Parking Co., 188 N.C. App. 782, 789, 656 S.E.2d 683, 688 (2008).

With regard to defendants’ purported acts of malice, plaintiff

alleges, among other things, that defendants: (1) knowingly

falsely prosecuted him for the unauthorized practice of law in

the Eastern District; (2) filed complaints against him solely
 -13-
for the purpose of retaliation and harassment; (3) acted

unprofessionally in their prosecution of him; (4) frivolously

argued wrong law and misrepresented the facts of binding

caselaw; and (5) intentionally wasted his time. Even treating

these allegations as true, they are insufficient to establish

that defendants acted with a personal desire for revenge or were

done in wanton disregard of plaintiff’s rights. Accordingly,

based on both the presence of probable cause and plaintiff’s

inability to establish actual or implied acts of malice,

defendant’s claims for malicious prosecution fail.

III. Plaintiff’s Direct State Constitutional Claims

In his prayer for relief, plaintiff contends that the facts

pled have violated his rights under North Carolina’s Declaration

of Rights. Specifically, plaintiff alleges the following

violations: (1) violation of section 1 by “irrationally treating

persons similarly situated to [him] as being above the law and

allowing them to cause great public harm”; (2) section 5 by

“acting inconsistently with the supremacy of the United States

Constitution”; (3) section 14 by “restraining and punishing

[his] freedom of speech”; and (4) section 19 by “depriv[ing]”

him of property and denying him equal protection. Plaintiff

asserts these claims against defendants in both their official
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and individual capacities.

A. Claims Against Defendants in their Individual

Capacities

With regard to plaintiff’s claims against Ms. Bakewell, Ms.

Bannon, and Ms. Cloutier in their individual capacities, we note

that “North Carolina does not recognize direct North Carolina

constitutional claims against public officials acting in their

individual capacities.” Bigelow v. Town of Chapel Hill, __ N.C.

App. __, __, 745 S.E.2d 316, 327, disc. review denied, __ N.C.

__, 747 S.E.2d 543 (2013). Thus, we affirm dismissal of all of

plaintiff’s claims against defendants in their individual

capacities.

B. Claims Against Defendants in their Official Capacities

With regard to plaintiff’s direct constitutional claims

against the State Bar and defendants in their official

capacities, our de novo review reveals that plaintiff’s

complaint fails to include the necessary factual allegations to

support his contention that defendants violated sections 1, 5,

14, and 19 of the North Carolina Declaration of Rights. Instead

of providing facts to set out the necessary elements of his

constitutional claims, plaintiff only makes conclusory

statements such as “Ms. Bakewell on behalf of the Bar
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frivolously argued knowingly wrong law, misrepresented the facts

and holdings of almost every court opinion she cited, and

ignored clear and binding U.S. Supreme Court precedent.”

Similarly, purportedly in support of his equal protection claim,

plaintiff argues that the State Bar does not discipline what

plaintiff refers to as “corporate lawyers” but, instead, only

harasses him. Although we must treat all factual allegations as

true in a plaintiff’s complaint, these types of statements are

conclusory, and they are not entitled to the same presumption on

review. By not providing some factual foundation for these

conclusory allegations, plaintiff’s complaint, on its face, is

insufficient to defeat defendants’ motion to dismiss.

Consequently, we affirm the trial court’s order.

Conclusion

In summary, the trial court did not err in granting

defendants’ motion to dismiss as to all of plaintiff’s claims

for failure to state a claim based on the following reasons.

Because the State Bar and defendants in their official capacity

are not “persons,” plaintiff is not entitled to seek monetary

relief against them pursuant to § 1983. With regard to

plaintiff’s request for monetary damages against defendants in

their individual capacities, defendants are entitled to the
 -16-
defense of qualified immunity and are shielded from liability

under § 1983. Plaintiff’s request for injunctive relief

pursuant to § 1983 fails because he has not included the

necessary factual allegations to establish that he is entitled

to this type of remedy. Plaintiff is not entitled to relief for

his tort claim of malicious prosecution because plaintiff has

failed to establish that defendants acted without probable cause

and with malice. Finally, as a matter of law, plaintiff may not

seek relief against defendants in their individual capacities

for direct constitutional claims under the North Carolina

Constitution. With regard to his direct constitutional claims

against defendants in their official capacities, plaintiff’s

claims fail because plaintiff has not included the necessary

factual allegations to support his claims.

AFFIRMED.

Panel consisting of: Judges HUNTER, Robert C., CALABRIA,
and HUNTER, JR., Robert N.

Report per Rule 30(e).