Newberne v. Dep't of Crime Control and Public Safety8/19/2005
On 9 April 2002, plaintiff Trooper Reginald Newberne filed suit against the named institutional and individual defendants, alleging that he was wrongfully terminated from his employment as a law enforcement officer with the State Highway Patrol in violation of the North Carolina Whistleblower Act, N.C.G.S. § 126-84 to -88. Defendants filed a motion to dismiss pursuant to Rule 12(b)(6) of the North Carolina Rules of Civil Procedure,which the trial court allowed in an order filed 29 January 2003. A divided panel of the Court of Appeals affirmed, Newberne v. Dep't of Crime Control, 168 N.C. App. 87, 606 S.E.2d 742 (2005), and plaintiff appealed as a matter of right. See N.C.G.S. § 7A-30(2) (2003). We reverse.
A motion to dismiss under N.C. R. Civ. P. 12(b)(6) "is the usual and proper method of testing the legal sufficiency of the complaint." Sutton v. Duke, 277 N.C. 94, 98, 176 S.E.2d 161, 163 (1970). In reviewing a trial court's Rule 12(b)(6) dismissal, the appellate court must inquire "'whether, as a matter of law, the allegations of the complaint, treated as true, are sufficient to state a claim upon which relief may be granted under some legal theory.'" Meyer v. Walls, 347 N.C. 97, 111, 489 S.E.2d 880, 888 (1997) (citations omitted); see also Isenhour v. Hutto, 350 N.C. 601, 604-05, 517 S.E.2d 121, 124 (1999). "Rule 12(b)(6) 'generally precludes dismissal except in those instances where the face of the complaint discloses some insurmountable bar to recovery.'" Energy Investors Fund, L.P. v. Metric Constructors, Inc., 351 N.C. 331, 337, 525 S.E.2d 441, 445 (2000) (quoting Sutton, 277 N.C. at 102, 176 S.E.2d at 166 (citation omitted)); cf. Conley v. Gibson, 355 U.S. 41, 45-46, 2 L.Ed. 2d 80, 84 (1957). Dismissal is proper, however, "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." Wood v. GuilfordCty., 355 N.C. 161, 166, 558 S.E.2d 490, 494 (2002) (citing Oates v. JAG, Inc., 314 N.C. 276, 278, 333 S.E.2d 222, 224 (1985)); see also McAllister v. Khie Sem Ha, 347 N.C. 638, 641- 42, 496 S.E.2d 577, 580-81 (1998) (citing Burgess v. Your House of Raleigh, Inc., 326 N.C. 205, 209, 388 S.E.2d 134, 136 (1990)).
In applying this standard of review, we treat the allegations in plaintiff's complaint as true: From November 1989 until his termination on 10 April 2001, the North Carolina Department of Crime Control and Public Safety (the Department) employed plaintiff as a sworn law enforcement officer in the State Highway Patrol (SHP). On 14 May 2000 at approximately 12:30 a.m., plaintiff arrived at a crime scene shortly after the arrest of Owen Jackson Nichols on suspicion of driving while impaired. Plaintiff did not directly participate in or witness Nichols's apprehension or arrest, which was effectuated by SHP Troopers B.O. Johnson, P.A. Collins, and J.R. Edwards.
While speaking with another trooper at the scene, plaintiff was approached by Trooper P.A. Collins. Plaintiff noticed that Trooper Collins was rubbing his hand and asked whether he had been injured. Trooper Collins replied that he had jammed his hand after hitting Owen Nichols and that Trooper Edwards had "pulled it back in place." When plaintiff advised Trooper Collins to seek medical treatment, Trooper Collins responded that he "wouldn't know what to tell the sergeant" and added that he could tell the sergeant he broke his hand during a fall. After stating once again that Trooper Collins should seek medical attention, plaintiff departed the crime scene. La
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