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JOHN HAWKINS Plaintiff
vs.
STATE OF NORTH CAROLINA; N.C.DEPARTMENT OF HUMAN RESOURCES; WESTERN CAROLINA CENTER IVERSON RIDDLE both individually and in his representative capacity as Director of Western Carolina Center; PHILLIP J. KIRK JR. individually and in his representative capacity as Secretary of the North Carolina Department of Human Resources; EARLINE BOYD BROWN individually and in her representative capacity RHONDA BENGE individually and in her representative capacity SUZANNE WILLIAMS individually and in her capacity VICKI CASH individually and in her capacity and RALPH KEATON individually and in his capacity Defendants.
 
Case:
NO. 9225SC154
 
Location:
COURT OF APPEALS OF NORTH CAROLINA
 
Headnotes:
Plaintiff was an employee of the Western Carolina Center (hereinafter Center) in Morganton North Carolina until 16 December 1986. The Center is a division of the North Carolina Department of Human Resources which is a subdivision of the State of North Carolina. In December 1986 plaintiff was employed by the Center as a Developmental Technician. On 11 December 1986 Rhonda Benge (hereinafter Benge) a registered nurse discovered that a valium tablet was missing from a medicine cabinet at the Center. A valium tablet had previously been stolen from the cabinet so after Benge and two other employees could not locate the missing tablet Benge called security. Plaintiff alleges that the Center's Security Chief Ralph Keaton (hereinafter Keaton) questioned each of the Developmental Technicians. After the first tablet was stolen all of the medicine in the cabinet had been dusted with a powder to detect unwarranted use. The nurses knew about the baited cabinet and Keaton considered them part of his "investigative team." When Keaton was called on 11 December he requested that the Technicians including plaintiff wash their hands to determine whether purple dye would show up on their hands. No dye appeared on plaintiff's hands. Benge then asked each technician to give a urine sample. Keaton never asked the nurses to give urine samples. Plaintiff refused contending that it violated his Fourth Amendment right against unlawful searches and seizures. After plaintiff refused to submit a urine specimen the Personnel Manager for the Center Suzanne Williams (hereinafter Williams) arrived and said that if plaintiff did not give a urine sample he could be dismissed for insubordination. Plaintiff said he would provide a sample if everyone else with access to the medicine cabinet also had to give urine samples. Williams responded that other employees would not be required to provide urine samples; plaintiff again refused. Plaintiff was subsequently dismissed from his employment with the Center on 16 December 1986.
Pursuant to Chapter 126 of the General Statutes plaintiff appealed his dismissal to the Office of Administrative Hearings. Administrative Law Court (hereinafter ALJ) Genie Rogers found that it was reasonable that Keaton did not ask the nurses to give urine samples because they were part of the investigative team. The ALJ also found that plaintiff's personnel file contained several written disciplinary warnings. The ALJ then concluded that although the taking of a urine sample is a search within the meaning of the Fourth Amendment the attempt to take a urine sample here was not an unreasonable search because Keaton had a reasonable suspicion that someone had recently stolen the tablet and the scope of the testing was reasonably related to the circumstances of the reasonable suspicion. Accordingly the ALJ recommended on 13 July 1988 that plaintiff's dismissal be upheld. The State Personnel Commission upheld plaintiff's dismissal on 21 February 1989.
Plaintiff filed a complaint on 15 December 1989 in Burke County Superior Court against the State; the North Carolina Department of Human Resources; the Center; J. Iverson Riddle individually and in his representative capacity as Director of Western Carolina Center; Phillip J. Kirk Jr. individually and in his representative capacity as Secretary of the North Carolina Department of Human Resources; Earline Boyd Brown; Benge; Suzanne Williams; Vicki Cash and Keaton. Pursuant to "28 U.S.C. Section 1983 plaintiff alleged violations of his First, Fourth, and Fourteenth Amendment rights and the applicable due process provisions of the North Carolina Constitution. Plaintiff also alleged violations of his rights under 28 U.S.C. Code Section 1981" and brought a claim for intentional infliction of emotional distress. Plaintiff asked for monetary and injunctive relief.
Two and one half months later on 28 February 1990 plaintiff took a voluntary dismissal without prejudice pursuant to G.S. 1A-1 Rule 41(a). Between the filing of the complaint in December and the voluntary dismissal in February plaintiff never served any of the defendants with a copy of the complaint or summons. Plaintiff filed a second complaint on 27 February 1991. Defendants filed a motion to dismiss on 9 May 1991 claiming that Court lacked subject matter jurisdiction of the claims and that the complaint failed to state claims upon which relief could be granted. Defendants filed an amended motion to dismiss on 29 May 1991 adding inter alia that the complaint was barred by the statute of limitations and that the defendants were protected from suit by absolute and qualified immunity. On 30 November 1991 Court Beverly T. Beal denied defendants' motions to dismiss. Defendants appealed and moved the trial court to stay the action pending the appeal. The trial court denied defendants' motion to stay on 3 January 1992. On 13 January 1992 defendants filed a motion for temporary stay and petition for writ of supersedes with this Court. We granted defendants' motion for temporary stay on 15 January 1992 and defendants' petition for writ of supersedes on 4 February 1992.
 
Attorneys:
For the State: Counsel General Lacy H. Thornburg by Special Deputy Counsel General John R. Corne and Assistant Counsel General Victoria L. Voight Raleigh NC. For Plaintiff-Appellee: John Hawkins: C. Gary Triggs P.A. Morganton NC.
 
Court:
Sidney S. Eagles, Jr., Gerald Arnold, CJ and James A. Wynn, Jr., J concurring.
 
Author:
The Hon. Justice Sidney S. Eagles Jr.
 

I.

[1] We note initially that the denial of a motion to dismiss is ordinarily not immediately appealable. Faulkenbury v. Retirement System 108 N.C. App. 357 365 424 S.E.2d 420 423 aff'd 335 N.C.158 436 S.E.2d 821 (1993). Here defendants asserted the defenses of absolute and qualified immunity to most of plaintiff's claims. This Court has previously held that the doctrine of sovereign immunity presents a personal jurisdiction question and that the denial of a motion to dismiss on that basis is immediately appealable. See Faulkenbury at 357 424 S.E.2d at 423; Zimmer v. North Carolina Dept. of Transp. 87 N.C. App. 132 134 360 S.E.2d 115 116-17 (1987). Accordingly we hold that defendants' appeal from the trial court's denial of defendants' motions to dismiss is properly before us.

We also note initially that although plaintiff alleged in his complaint that defendants violated his rights under 28 U.S.C. Sec (s) 1981 and 1983 both parties treated the claims as pursuant to 42 U.S.C. Sec. (s) 1981 and 1983. Accordingly we treat the claims as pursuant to 42 U.S.C. Sec. (s) 1981 and 1983.

Standard of Review

"When considering a Rule 12(b)(6) motion to dismiss the trial court need only look to the face of the complaint to determine whether it reveals an insurmountable bar to plaintiff's recovery." Locus v. Fayetteville State University 102 N.C. App. 522 527 402 S.E.2d 862 866 (1991) (emphasis omitted).

II.

Defendants first argue that the trial court erred in denying their amended motion to dismiss plaintiff's complaint because plaintiff's claims are barred by the statute of limitations. Plaintiff filed his first complaint on 15 December 1989 within the three year statute of limitations applicable to all of his claims. Plaintiff then voluntarily dismissed his first complaint on 29 February 1990. He filed the second complaint on 27 February 1991 which was within the one year "savings" provision provided by Rule 41(a)(1) of the North Carolina Rules of Civil Procedure. Defendants argue that plaintiff was not entitled to another year in which to refile his complaint because he took a voluntary dismissal of his first action in bad faith. Defendants base their argument on our Supreme Court's decision in Estrada v. Burnham 316 N.C.318 341 S.E.2d 538 (1986). We disagree because Estrada is distinguishable.

In Estrada the North Carolina Supreme Court stated that although "Rule 41(a)(1) does not on its face contain an explicit prerequisite of a good-faith filing with the intent to pursue the action we find such a requirement implicit in the general spirit of the rules as well as in the mandates of Rule 11(a)." Estrada at 323 341 S.E.2d at 542. Court concluded that a plaintiff cannot use the "savings" provision of Rule 41(a)(1) when the plaintiff files the first complaint solely with the "intention of dismissing it in order to avoid the lapse of the statute of limitations." Estrada at 325 341 S.E.2d at 543. Court concluded that the plaintiff in Estrada had filed the original complaint in bad faith and therefore was not entitled to the one year "savings" provision.

As Court in Estrada noted appellate courts cannot make findings of fact. Id. at 324 341 S.E.2d at 543. However in Estrada Court had before it the judicial admission of plaintiff's Counsel that "'clearly there was an intent on our part not to prosecute [the first] action.'" Estrada at 325 341 S.E.2d at 543. This admission enabled Court to reach the conclusion that the plaintiff had a "bad" intent. Here there is no evidence of record that plaintiff's sole intent in filing the first complaint was to dismiss it in order to gain another year in which to file a "sufficient" complaint. In Estrada the plaintiff filed the first complaint at 4:28 p.m. on 18 June 1982 and filed the notice of dismissal at 4:30 p.m. two minutes after he filed the original complaint. Estrada at 319 341 S.E.2d at 539 40. Here plaintiff waited over two months to dismiss his original complaint. Here too there is no judicial admission that shows that plaintiff filed and dismissed his first complaint in bad faith. Accordingly we hold that the "savings" provision of Rule 41(a)(1) properly applied to plaintiff's complaint and that his second complaint was not barred by the statute of limitations.

FEDERAL CLAIMS

III.

Defendants argue that the trial court erred in denying defendants' amended motion to dismiss plaintiff's federal claims because the defendants in their official capacities are not "persons" within the meaning of 42 U.S.C. Sec. 1983. Section 1983 provides that:

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.A. Sec. 1983 (West 1994). The United States Supreme Court held in Will v. Michigan Dept. Of State Police 491 U.S. 58 71 105 L. Ed. 2d 45 58 109 S. Ct.2304 (1989) that "neither a State nor its officials acting in their official capacities are 'persons' under Sec. 1983." While Court opined that state officials are "literally . . . persons the opinion holds that a suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official's office." Will 491 U.S. at 71 105 L. Ed. 2d at 58 citing Brandon v. Holt 469 U.S.464 471 83 L. Ed. 2d 878 884-85 105 S. Ct. 873 (1985). "As such it is no different from a suit against the State itself." Will 491 U.S. at 71 105 L. Ed. 2d at 58. Because defendants in their official capacities are not "persons" within the meaning of section 1983 for recovering money damages we hold that the trial court erred in denying defendants' amended motion to dismiss plaintiff's federal claims against defendants in their official capacities for monetary damages.

Plaintiff also argues that defendants are "persons" here and liable because their actions establish a "governmental custom" of Constitutional and statutory violations. We are not persuaded. Plaintiff relies on language from cases dealing with municipal liability. Municipalities do not enjoy the same protections from liability that states enjoy. "Unlike various government officials municipalities do not enjoy immunity from suit--either absolute or qualified--under Sec. 1983. In short a municipality can be sued under Sec. 1983 but it cannot be held liable unless a municipal policy or custom caused the constitutional injury." Leatherman v. Tarrant County Etc. 507 U.S.163 122 L. Ed. 2d 517 523 113 S. Ct. 1160 (1993). Accordingly plaintiff here cannot contend that defendants in their official capacities are liable for alleged Constitutional violations by arguing that defendants' actions were pursuant to a "governmental custom."

As to plaintiff's claim for injunctive relief under section 1983 defendants are "persons." Will 491 U.S. at 71 n.10 105 L. Ed. 2d at 58 n.10. Accordingly plaintiff may be able to obtain injunctive relief against defendants in their official capacities if he can state a claim under each of the alleged federal violations.

IV.

Defendants also argue that the trial court erred in denying defendants' amended motion to dismiss plaintiff's federal claims because defendants in their individual capacities are immune from suit under the doctrine of qualified immunity. "State governmental officials [may] be sued in their individual capacities for [monetary] damages under section 1983." 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 Durham v. Corum U.S. 121 L. Ed. 2d 431 113 S. Ct. 493 (1992). Government officials sued under section 1983 may raise the defense of qualified immunity. Id. "To raise the defense which does not apply to injunctive relief the challenged conduct must not have violated a clearly established constitutional [or statutory] right of which a reasonable person would have known." Truesdale v. Univ. Of North Carolina 91 N.C. App. 186 193 371 S.E.2d 503 507 (1988) review denied 323 N.C.706 377 S.E.2d 229 cert. denied 493 U.S. 808 107 L. Ed. 2d 19 110 S. Ct. 50 (1989) overruled on other grounds by Corum 330 N.C.761 413 S.E.2d 276 citing Harlow v. Fitzgerald 457 U.S. 800 73 L. Ed. 2d 396 102 S. Ct. 2727 (1982). For clarity we will address each of plaintiff's claims separately.

A. First Amendment Claim

For plaintiff to maintain a free speech claim under section 1983 plaintiff must first establish that his speech was protected by showing that "(i) the speech pertained to a matter of public concern 'and (ii) the public concern outweighed the governmental interest in efficient operations." Lenzer v. Flaherty 106 N.C. App. 496 507 418 S.E.2d 276 283 review denied 332 N.C.345 421 S.E.2d 348 (1992) citing Connick v. Myers 461 U.S.138 75 L. Ed. 2d 708 103 S. Ct. 1684 (1983). "The determination of whether the conduct is protected activity is a question of law." Lenzer at 507 418 S.E.2d at 283 citing Connick 461 U.S. at 148 n.7 75 L. Ed. 2d at 720 n.7. "A matter is of public concern if when fairly considered it relates 'to any matter of political social or other concern to the community.'" Pressman v. University Of N.C. At Charlotte 78 N.C. App. 296 300-01 337 S.E.2d 644 647 (1985) review allowed 315 N.C.589 341 S.E.2d 28 (1986) citing Connick 461 U.S. at 146 75 L. Ed. 2d at 719. We must look at the context form and content of the employee's speech to determine whether it is a matter of public concern. Pressman at 301 337 S.E.2d at 647 citing Connick 461 U.S. at 147-48 75 L. Ed. 2d at 720.

Here the only allegation in plaintiff's complaint of any "speech" is plaintiff's assertion that when he was asked to give a urine sample he said that the defendants' actions "violated his Constitutionally protected rights including his 4th 5th and 6th Amendment[] [rights]." There is no indication from the record that defendants fired plaintiff for this "speech." The record indicates that defendants fired plaintiff because he refused to provide a urine sample. One's simply saying that giving a urine sample violates one's own Constitutional rights is not a matter of public concern. Cf. Lenzer at 508 418 S.E.2d at 283 (holding that when a person reports cases of possible patient abuse that speech is a matter of public concern). Accordingly plaintiff does not satisfy the first requirement to show that his speech was protected and we need not address the second requirement.

Because we hold that plaintiff's "speech" here was not protected we also find that defendants are insulated from liability by the doctrine of qualified immunity. Plaintiff failed to show that there was a "clearly established" right which defendants allegedly violated. Accordingly we do not address the second prong of the qualified immunity doctrine as it relates to plaintiff's claim of a free speech violation. The trial court erred in denying defendants' motion to dismiss as to plaintiff's free speech claim.

B. Fourteenth Amendment Claim

[6] In his complaint plaintiff alleges that his termination violated his due process rights guaranteed by the Fourteenth Amendment. Defendants argue that plaintiff failed in his complaint and memorandum in opposition to defendants' motion to dismiss to show how his due process rights were violated. We agree. Under the doctrine of qualified immunity the plaintiff bears the burden of establishing that the right violated was clearly established. Clark v. Link 855 F.2d 156 160 (4th Cir. 1988). In its recommended decision the ALJ found that plaintiff and defendants had stipulated that defendants fully complied with the procedural requirements of Chapter 126 . . . and Section 9 of the State Personnel Manual as they relate to the discharge of a full-time State employee. Chapter 126 sets out the procedures which a discharged employee must follow when contesting termination. This Court has previously stated that these procedures fully protect an employee's due process rights. Sherrod v. N.C. Dept. Of Human Resources 105 N.C. App. 526 531 414 S.E.2d 50 53 (1992). Accordingly defendants did not violate any clearly established due process rights in terminating plaintiff and defendants are entitled to qualified immunity as to plaintiff's Fourteenth Amendment due process claim.

C. Fourth Amendment Claim

[7] Plaintiff also alleged in his complaint that defendants violated his rights by requiring him to provide a urine sample which he argues constitutes a search under the Fourth Amendment. However the United States Supreme Court did not declare that a urine test is a search under the Fourth Amendment until 1989 in Skinner v. Railway Labor Exec. Assn. 489 U.S. 602 103 L. Ed. 2d 639 109 S. Ct. 1402 (1989). Defendants asked plaintiff to give a urine sample in 1986. "Only violations of those federal rights 'clearly recognized in existing case law' will support an award in damages under 42 U.S.C. Sec. 1983." Swanson v. Powers 937 F.2d 965 968 (4th Cir. 1991) cert. denied 502 U.S. 1031 116 L. Ed. 2d 777 112 S. Ct. 871 502 U.S. 1031 116 L. Ed. 2d 777 112 S. Ct. 871 (1992) citing Danenberger v. Johnson 821 F.2d 361 365 (7th Cir. 1987).

When defendants asked plaintiff to provide a urine sample there was no clearly established law that restricted the taking of urine specimens. Although public officials may be 'charged with knowledge of constitutional developments, [they] are not required to predict the future course of constitutional law.' Swanson 937 F.2d at 968 citing Lum v. Jensen 876 F.2d 1385 1389 (9th Cir. 1989) cert. denied 493 U.S. 1057 107 L. Ed. 2d 951 110 S. Ct.867 (1990). Accordingly we hold that defendants did not violate any clearly established right in 1986 when they asked plaintiff to provide a urine sample.

D. 42 U.S.C. Section 1981 Claim

[8] Finally plaintiff alleged in his complaint that he was "systematically discriminated against" because of his race in violation of 42 U.S.C. Sec. 1981. However at the time of defendants' alleged violations section 1981 provided limited protections because it only forbade discrimination in the making and enforcement of contracts. Williams v. First Union Nat. Bank Of N.C. 920 F.2d 232 234 (4th Cir. 1990) cert. denied 500 U.S. 953 114 L. Ed. 2d 712 111 S. Ct. 2259 (1991). Section 1981 did not govern a discriminatory discharge action. Id. Section 1981 also did not cover post formation conduct by the employer relating to the terms and conditions of continuing employment. Patterson v. McLean Credit Union 491 U.S. 164 179 105 L. Ed. 2d 132 152 109 S. Ct. 2363 (1989). Like the plaintiff in Patterson plaintiff here alleged that he was discriminated against during his employment. Although the 1991 Civil Rights Act broadened the scope of section 1981 the Fourth Circuit has declined to apply the Act retroactively. Percell v. International Business Machines Inc. 785 F. Supp. 1229 1231 (E.D.N.C. 1992) aff'd 23 F.3d 402 (4th Cir. 1994). (We note that Williams and Patterson were superseded by the Act insofar as they define the present scope of section 1981.) Therefore we hold that plaintiff here has not stated a claim pursuant to section 1981 because at the time of the alleged statutory violations section 1981 did not cover the defendants' alleged actions. Accordingly we need not address the immunity issue.

As to plaintiff's claim for injunctive relief we hold that the trial court should have granted defendants' motion to dismiss plaintiff's First Amendment and section 1981 claims because as we concluded above plaintiff failed to state a claim. As to plaintiff's Fourth and Fourteenth Amendment claims we hold that the trial court did not err in denying defendants' motion to dismiss.

STATE CLAIMS

V.

[9] Defendants argue that the trial court erred in denying defendants' amended motion to dismiss plaintiff's state claims because defendants in their official capacities are absolutely immune from suit. The doctrine of sovereign immunity protects the State from suit unless it consents to be sued. Because a suit against public officials and public employees in their official capacities is considered a suit against the State sovereign immunity also protects these individuals from suit. Minneman v. Martin 114 N.C. App. 616 618 442 S.E.2d 564 566 (1994).

Here plaintiff argues that the State waived its immunity from suit by entering into a contract of employment with plaintiff. Plaintiff is correct that when the State "enters into a valid contract the State implicitly consents to be sued for damages on the contract in the event it breaches the contract." Smith v. State 289 N.C. 303 320 222 S.E.2d 412 424 (1976). However neither of plaintiff's two state claims here are contract claims. One is a tort claim and the other is a state constitutional law claim. Accordingly plaintiff's argument is without merit. The State has not waived its immunity with respect to plaintiff's tort claim and may assert absolute immunity as to that claim.

[10] As to the state constitutional law claim defendants also argue that plaintiff cannot maintain this action against the State its agencies or employees in their official capacity because there exists an adequate state remedy. Defendants are correct that a direct cause of action under the State Constitution is permitted only "in the absence of an adequate state remedy." Corum 330 N.C. at 782 413 S.E.2d at 289. Here there is an adequate state remedy for plaintiff's alleged due process injury. Article 8 of Chapter 126 and Articles 3 and 4 of Chapter 150B of the General Statutes provide for an administrative review of plaintiff's termination and the right of judicial review of the agency's decision by the superior court. Accordingly the trial court erred in denying defendants' amended motion to dismiss plaintiff's state constitutional law claim.

VI.

[11] Defendants also argue that the trial court erred in denying their amended motion to dismiss plaintiff's state claims because defendants in their individual capacities are immune from suit under the doctrine of qualified immunity.

A. Tort Claim

"[A] public official engaged in the performance of governmental duties involving the exercise of judgment and discretion may not be held personally liable for mere negligence in respect thereto. . . . An official may not be held liable unless [the plaintiff] alleges and proves that [the official's] act or failure to act was corrupt or malicious . . . or that he acted outside of and beyond the scope of his duties."

Smith v. State 289 N.C.303 331 222 S.E.2d 412 430 (1976) quoting Smith v. Hefner 235 N.C.1 7 68 S.E.2d 783 787 (1952). Unlike a public official a public employee is "'personally liable for his negligence in the performance of his duties proximately causing injury to another.'" Harwood v. Johnson 92 N.C. App. 306 309-10 374 S.E.2d 401 404 (1988) review allowed 324 N.C.247 377 S.E.2d 754 (1989) aff'd in part rev'd in part on other grounds 326 N.C.231 388 S.E.2d 439 (1990) quoting Givens v. Sellars 273 N.C. 44 49 159 S.E.2d 530 534-35 (1968). "Malice" is defined as "the intentional doing of a wrongful act without just cause or excuse with an intent to inflict an injury or under circumstances that the law will imply an evil intent." Blacks Law Dictionary 1109 (6th ed. 1990). Because malice encompasses intent we conclude that if a party alleges an intentional tort claim the doctrine of qualified immunity does not immunize public officials or public employees from suit in their individual capacities. Here plaintiff alleged that defendants' actions constituted intentional infliction of emotional distress. Accordingly the trial court did not err in denying defendants' motion to dismiss plaintiff's tort claim.

B. State Constitutional Law Claim

[12] As to plaintiff's state constitution due process claim defendants argue that North Carolina does not recognize a state claim against state officials in their individual capacities for alleged violations of state constitutional rights. We agree. Our Supreme Court has held that a plaintiff cannot maintain a claim against government employees in their individual capacities for alleged violations of state constitutional free speech rights. Corum v. University Of North Carolina 330 N.C.761 789 413 S.E.2d 276 293 reh'g denied 331 N.C.558 418 S.E.2d 664 cert. denied Durham v. Corum U.S. 121 L. Ed. 2d 431 113 S. Ct. 493 (1992). Based on Court's discussion in Corum we hold that Court's holding applies equally to alleged violations of other state constitutional rights. See Lenzer v. Flaherty 106 N.C. App. 496 514 418 S.E.2d 276 287 (1992) (agreeing that Corum holds that "State constitutional claims are not cognizable against State actors in their individual capacity"). Accordingly the trial court erred in denying defendants' amended motion to dismiss plaintiff's claims against defendants in their individual capacities for monetary and injunctive relief for alleged violations of the state constitution.

VII.

Defendants also argue that the trial court erred in denying their motion to dismiss plaintiff's claims because they are barred by the doctrines of issue preclusion and exclusive remedy. As we discussed in I. supra the denial of a motion to dismiss is ordinarily not immediately appealable. Faulkenbury v. Retirement System 108 N.C. App. 357 365 424 S.E.2d 420 423 (1993). Although interlocutory in nature an appellate court may address an interlocutory order when it "'deprives the appellant of a substantial right which would be jeopardized absent a review prior to a final determination on the merits.'" Jeffreys v. Raleigh Oaks Joint Venture 115 N.C. App. 377 379 444 S.E.2d 252 253 (1994) quoting Southern Uniform Rentals Inc. v. Iowa Nat'l Mut. Ins. Co. 90 N.C. App. 738 740 370 S.E.2d 76 78 (1988). The appellant has the burden to show how it will be deprived of a substantial right absent immediate appeal. Jeffreys at 379 444 S.E.2d at 253. As to defendants' seventh and eighth assignments of error which deal with issue preclusion and the doctrine of exclusive remedy defendants have failed to show how the trial court's order deprives them of a substantial right. "It is not the duty of this Court to construct arguments for or find support for [defendants'] right to appeal from an interlocutory order." Id. at 380 444 S.E.2d at 254. Accordingly we decline to address these two assignments of error.

VIII.

In defendants' ninth through twelfth assignments of error defendants claim that the trial court erred in denying defendants' motion to dismiss because plaintiff's complaint fails to state a claim under the First Fourth and Fourteenth Amendments to the United States Constitution under the North Carolina Constitution or under 42 U.S.C. Sec. 1981. We have already concluded that plaintiff fails to state a claim pursuant to 42 U.S.C. Sec. 1981 and pursuant to the First Amendment of the United States Constitution. As to defendants' contentions concerning plaintiff's other federal and state constitutional claims we once again note that the order from which defendants appeal is interlocutory. On this record we hold that defendants will not be deprived of any substantial right by waiting until trial to present their defenses to plaintiff's remaining constitutional law claims.

IX.

Defendants also argue that plaintiff's complaint fails to state a claim for intentional infliction of emotional distress and that the trial court erred in signing the order because "it is contrary to law." Because the trial court's order is interlocutory and there has been no showing how defendants will be deprived of a substantial right by waiting for a final determination of plaintiff's emotional distress' claim we do not address these assignments of error.

X.

In summary the trial court did not err: (1) in denying defendants' amended motion to dismiss plaintiff's Fourth and Fourteenth Amendment claims for injunctive relief against defendants in their official and individual capacities and (2) in denying defendants' amended motion to dismiss plaintiff's state tort claim as to all defendants in their individual capacities.

The trial court erred in failing to dismiss: (1) plaintiff's First Amendment and section 1981 claims for injunctive relief against defendants in their official and individual capacities (2) plaintiff's federal claims for monetary damages against defendants in their official capacities and in their individual capacities (3) plaintiff's state tort and constitutional claims against defendants in their official capacities and (4) plaintiff's state constitution claim against all defendants in their individual capacities. The remaining issues on appeal are interlocutory and premature. This case is remanded to the trial court for further proceedings consistent with this opinion.

Affirmed in part reversed in part and remanded.

Chief Court ARNOLD and Court WYNN concur.