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Attorneys – Tort/Negligence – Malicious Prosecution – Civil Rights – Constitutional — Bar Disciplinary Action

Livingston v. Bakewell (Lawyers Weekly No. 14-16-0133, 16 pp.) (Per Curiam) Appealed from Wake County Superior Court (Donald W. Stephens, J.) N.C. App. Unpub.

Holding: Where the disciplinary action against the plaintiff-attorney resulted in an admonition against him for the unauthorized practice of law in Utah and in the U.S. District Court for the Eastern District of North Carolina, plaintiff cannot show that defendants acted without probable cause in pursuing the disciplinary action; therefore, plaintiff failed to state a claim for malicious prosecution.

We affirm the trial court’s dismissal of plaintiff’s complaint.

While the Disciplinary Hearing Commission (DHC) of the N.C. State Bar concluded that plaintiff’s motion to recuse Eastern District Court Judge Terrence Boyle did not violate the N.C. Rules of Professional Conduct, even plaintiff characterized his motion 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.

Furthermore, plaintiff failed to allege facts showing that defendants acted with malice. Plaintiff alleges that defendants (1) knowingly falsely prosecuted him for the unauthorized practice of law in the Eastern District; (2) filed complaints against him solely 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 malice, defendant’s claims for malicious prosecution fail.

Civil Rights

The State Bar and the other defendants in their official capacities are not “persons” under 42 U.S.C. § 1983 in the context of a claim for monetary damages. Accordingly, the trial court correctly dismissed plaintiff’s § 1983 claim for damages against these defendants.

As to plaintiff’s § 1983 claim for damages against the individual defendants in their individual capacities, they are entitled to qualified immunity. 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 plaintiff’s litigation opponents; (4) “obstructing consumer justice by aiding and comforting scofflaw debt collectors and their corporate lawyers”; (5) knowingly prosecuting plaintiff on a false charge of unauthorized practice of law; (6) filing frivolous lawsuits against him; and (7) acting unprofessionally and arrogantly when plaintiff tried to discuss the case. The complaint provides no factual basis for these conclusory allegations. 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 plaintiff’s § 1983 claims against them.

Plaintiff also requests that 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 Plaintiff.” 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 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.

State Constitution

North Carolina does not recognize direct N.C. constitutional claims against public officials acting in their individual capacities.

Plaintiff’s complaint fails to include the necessary factual allegations to support his contention that defendants violated §§ 1, 5, 14, and 19 of the N.C. 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 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. By not providing some factual foundation for these conclusory allegations, plaintiff’s complaint, on its face, is insufficient to defeat defendants’ motion to dismiss.



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