dissenting in part and concurring in part:
I agree with the majority that the plaintiffs’ claims against the defendant in his individual capacity were properly dismissed by the trial court. I do not agree that the trial court improperly dismissed the plaintiffs’ asserted claims against the defendant in his official capacity. For the reasons that follow, I would affirm the trial court in every respect.
In this case, the plaintiffs have been specific in their complaint in asserting claims for false arrest, false imprisonment and emotional distress against the defendant in both his official and individual capacities. Because the plaintiffs’ designation in the complaint is not determinative of whether defendant is actually being sued in his individual or official capacity, it must first be determined in what capacity he has been sued. See Taylor v. Ashburn, 112 N.C. App. 604, 607, 436 S.E.2d 276, 279 (1993), disc. rev. denied, 336 N.C. 77, 445 S.E.2d 46 (1994).
In determining whether a plaintiff has brought an action against a defendant in his official or individual capacity, it is important to consider both “the nature of the conduct giving rise to the action” and “the nature of the relief sought.” 1 Civil Actions Against State and Local Government, Its Divisions, Agencies, and Officers § 1.16 (Shephard’s Editorial Staff 1992) [hereinafter Civil Actions]; see Oyler v. Wyoming, 618 P.2d 1042, 1046 (Wyo. 1980) (whether suit is really against state “is to be determined ... by the essential nature and effect of the proceeding, as it appears from the entire record) (quoting In re State of New York, 256 U.S. 490, 500, 65 L.Ed. 1057, 1062 (1920)). The nature of the conduct involved in the action determines in what capacity one can be sued. If the allegations in the complaint involve acts of a governmental employee or official performed within the bounds of their official duties and pursuant to their lawful authority, the defendant can only be sued in his official capacity which is treated as an action against the governmental entity employing the official or employee. Smith v. State, 289 N.C. 303, 332, 222 S.E.2d 412, 431 (1976); Microfilm Corp. v. Turner, 7 N.C. App. 258, 264, 172 S.E.2d 259, 263 (1970); Electric Co. v. Turner, 275 N.C. 493, 498, 168 S.E.2d 385, 388 (1969) (action is really against State where “record discloses that every act charged against any defendant was performed in his capacity as representative of the State”); Texas Dep’t *131of Human Serv. v. Trinity Coalition, Inc., 759 S.W.2d 762, 763 (Tex. Ct. App. 1988) (“officer who acts within the State’s laws, stays within that pavilion of immunity”), cert. denied, 493 U.S. 1020, 107 L. Ed. 2d 739 (1990); Civil Actions § 1.19. Therefore, in a suit brought against a governmental officer or employee in his official capacity, the same immunities available to the entity are available to him. Dickens v. Thorne, 110 N.C. App. 39, 45, 429 S.E.2d 176, 180 (1993).
If a plaintiff alleges in the complaint that the conduct of a governmental employee or official is illegal, wrongful, or in excess of the employee’s or official’s duties, the defendant can only be sued in his individual capacity. Corum v. University of North Carolina, 330 N.C. 761, 772, 413 S.E.2d 276, 283, reh’g denied, 331 N.C. 558, 418 S.E.2d 664, cert. denied, - U.S. —, 121 L. Ed. 2d 431 (1992); Taylor, 112 N.C. App. at 607-08, 436 S.E.2d at 279; Robinette v. Barriger, 116 N.C. App. 197, 203, 447 S.E.2d 498, 502 (1994), disc. rev. denied in part, 339 N.C. 615, 454 S.E.2d 257 (1995); Civil Actions § 1.19; Robb v. Sutton, 498 N.E.2d 267, 270 (Ill. App. 1986) (legal official acts of State agents performed within bounds of official authority or duties are normally considered acts of State; illegal acts or acts in excess of delegated authority are against agent individually); Texas Dep’t of Human Serv., 759 S.E.2d at 763 (“officer who ventures into an ultra vires act steps beyond the State’s inviolable mantle, and becomes individually subject to corrective measures”).
The nature of the relief sought by a plaintiff shows how a particular defendant has been sued. If a judgment in favor of the plaintiff could operate to control the actions of the governmental entity or subject it to liability or directly and adversely affect its funds or property, the action is really one against the entity and not the individual defendant. Civil Actions §§ 1.17-.18; see Robb, 498 N.E.2d at 267; Dugan v. Rank, 372 U.S. 609, 620, 10 L. Ed. 2d 15, 23 (1963). If money damages are sought from the individual defendant, and not from the entity, the action is against the individual defendant and not the entity.
In this case, plaintiffs’ only allegations in their complaint are that defendant engaged in illegal and wrongful conduct in that he “did not have probable cause, or any cause or reason whatsoever to arrest either [plaintiff],” and his actions were “totally unreasonable” and constituted “false arrest and false imprisonment.” Defendant, therefore, can only be sued in his individual capacity. Furthermore, plaintiffs’ prayer for relief shows that they are only seeking money dam*132ages from the pocket of the defendant, and there is nothing to indicate the county will somehow be adversely affected by a judgment in favor of plaintiffs. This action is therefore against defendant in his individual capacity. Accordingly, I would affirm the trial court’s grant of summary judgment as to plaintiffs’ alleged action against defendant “in his official capacity.”
Having determined that plaintiffs’ action is against defendant in his individual capacity, and because the defendant is a public official performing a discretionary act, the question then is whether plaintiffs have produced a forecast of evidence that defendant’s actions went beyond mere negligence. Smith, 289 N.C. at 331, 222 S.E.2d at 430 (public official is immune from personal liability for mere negligence in performance of his duties, but is not immune if his actions were corrupt or malicious or if he acted outside of and beyond the scope of his duties); Smith v. Hefner, 235 N.C. 1, 7, 68 S.E.2d 783, 787-88 (1951) (qualified immunity for public officer sued in individual capacity does not extend to mere employee of governmental entity). Although plaintiffs allege in their complaint that defendant falsely arrested and imprisoned them and argue in their brief that defendant’s conduct was somehow malicious, I agree with the majority that all of plaintiffs’ allegations and evidence tend to show that, if anything, defendant’s conduct on 18 March 1992 was akin to mere negligence. Plaintiffs therefore have failed to present a forecast of evidence that defendant engaged in any action that would rise to the level of malice, entitling defendant to summary judgment in these claims against him in his individual capacity.