Fullwood v. Barnes (Lawyers Weekly No. 011-338-16, 15 pp.) (John Tyson, J.) Appealed from Guilford County Superior Court (Anderson Cromer, J.) N.C. App.
Holding: Where the plaintiff-arrestee denies the defendant-police officer’s allegations that plaintiff was involved in gang activity and that he impeded a police investigation, and where plaintiff asserts that he had previously been harassed by police officers, that the magistrate questioned the officers’ pursuit of charges against plaintiff, and that the District Attorney dismissed the charges, plaintiff has made a sufficient showing of malice to survive summary judgment as to defendant’s assertion of public official immunity.
We affirm the trial court’s denial of defendant’s motion for summary judgment with respect to plaintiff’s claims against defendant in his individual capacity. However, we reverse the trial court’s denial of defendant’s motion for summary judgment with respect to plaintiff’s claims against defendant in his official capacity.
Since plaintiff’s complaint failed to specifically allege any waiver of governmental immunity, the trial court should have granted defendant’s motion for summary judgment as to plaintiff’s claims against defendant in his official capacity.