Tony Locklear v. Town of Pembroke, NC, No. 13-1091 (4th Cir. 2013)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-1091 TONY DE ANGELO LOCKLEAR, Plaintiff Appellant, v. TOWN OF PEMBROKE, NORTH CAROLINA; MILTON R. HUNT, Mayor of Pembroke, in his official and individual capacities; DWAYNE HUNT, former Acting Chief of Police for the Town of Pembroke, in his official and individual capacities; MCDUFFIE CUMMINGS, Town Manager of Pembroke, in his official and individual capacities; MARIE MOORE, Acting Town Manager, in her official capacity; GREG CUMMINGS, individually and as a member or former member of the Town Council of Pembroke, North Carolina; RYAN SAMPSON, individually and as a member or former member of the Town Council of Pembroke, North Carolina; A. G. DIAL, individually and as a member or former member of the Town Council of Pembroke, North Carolina; LARRY BROOKS, individually and as a member or former member of the Town Council of Pembroke, North Carolina; LARRY MCNEILL, individually and as a member or former member of the Town Council of Pembroke, North Carolina, Defendants Appellees. Appeal from the United States District Court for the Eastern District of North Carolina, at Wilmington. James C. Dever, III, Chief District Judge. Submitted: June 13, 2013 Decided: Before WILKINSON, DAVIS, and WYNN, Circuit Judges. 1 July 2, 2013 Affirmed by unpublished per curiam opinion. William L. Davis, III, Lumberton, North Carolina, for Appellant. Ann Smith, Paul Holscher, JACKSON LEWIS LLP, Cary, North Carolina, for Appellees. Unpublished opinions are not binding precedent in this circuit. 2 PER CURIAM: In a civil action filed in North Carolina state court, plaintiff Tony Locklear alleged that the Town of Pembroke, North Carolina (the Town ), and a number of the Town s officers and employees, force. wrongfully terminated him from the Town s police On appeal, Locklear contends that the district court erred in holding that the defendants properly removed Locklear s case to federal court, and, for a variety of reasons, incorrectly dismissed his action under Federal Rule of Civil Procedure 12(b)(6). As explained below, we affirm. I. Locklear joined the Town s police force in December 2005. In late 2008, he seized two ounces of cocaine while executing two search warrants. Locklear, who was responsible for securing and storing the cocaine, locked it in his office locker. The cocaine remained locked in the locker through at least the first full week of April 2009. On April 20, 2009, Locklear went to check his locker and found the lock was missing. After inventorying the locker s contents, he determined that the two ounces of cocaine also were missing. Locklear reported the missing cocaine to Acting Police Chief Dwayne Hunt, who suspended Locklear pending investigation 3 into the missing drugs. In a letter dated June 8, 2009, Hunt terminated Locklear. On June 16, 2009, Locklear appealed his termination to the Town Council, which did not respond. Fourteen months later, Locklear again sought a hearing to challenge his termination, which the Town Council denied. In late 2010, the local district attorney s office informed Locklear that he had been eliminated as a suspect in the investigation into the missing cocaine. Locklear filed the present action in North Carolina Superior Court on June 8, 2012, asserting claims for breach of contract, denial of procedural due process under the North Carolina Constitution and the Fourteenth Amendment, and wrongful termination. District Defendants removed the case to the United States Court for the Eastern District of North asserting federal jurisdiction under 28 U.S.C. § 1331. Carolina, Locklear unsuccessfully moved to have the case remanded to state court. Thereafter, defendants moved to dismiss the action under Rule 12(b)(6). The district court granted defendants motion, concluding that Locklear s complaint suffer[ed] from multiple incurable legal defects. Locklear v. Town of Pembroke, N.C., No. 7:12-CV-201-D, 2012 WL 6701784, at *1 (E.D.N.C. Dec. 26, 2012). Locklear appealed. 4 II. A. First, Locklear argues that removal was improper because his complaint did not state a federal cause of action. review questions of subject matter jurisdiction de including those relating to the propriety of removal. We novo, Dixon v. Coburg Dairy, Inc., 369 F.3d 811, 815-16 (4th Cir. 2004) (en banc) (internal quotation omitted). Locklear s jurisdictional argument is belied by the plain language of his complaint, which claims on multiple occasions that defendants violated Locklear s rights under the Due Process Clause of the Fourteenth Amendment. See, e.g., J.A. 9 (stating that the complaint is an action for damages . . . for violation of Plaintiff s Due Process Rights . . . under the State and Federal Constitution . . . ); J.A. 20 ( Defendants actions as set forth herein violated Plaintiff s procedural due process rights afforded by [the] Due Process Clause under the 14[th] Amendment of the U.S. Constitution. ). Indeed, his brief concedes that he made reference to the due process clause of the Fourteenth Appellant s Br. Amendment at 24. on the Therefore, merit. 5 face this of his argument complaint. is without B. Next, Locklear argues that the district court erred granting defendants motion to dismiss under Rule 12(b)(6). in We review de novo a district court s decision to dismiss an action under Rule 12(b)(6). In re Total Realty Mgmt., LLC, 700 F.3d 245, 250 (4th Cir. 2013). To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation omitted). We may affirm a district court s dismissal of an action under Rule 12(b)(6) on any basis fairly supported by the record. Total Realty Mgmt., 700 F.3d at 250 (quotation omitted). Although Locklear s complaint asserted a number of causes of action, his appellate brief only challenges the dismissal of his due process claim under the North Carolina Constitution and his wrongful discharge claim. Therefore, he has waived any argument that the district court incorrectly disposed of his remaining claims. See Equal Rights Ctr. v. Niles Bolton Assocs., 602 F.3d 597, 604 n.4 (4th Cir. 2010) (holding that argument was waived when it was not raised in appellant s opening brief). Turning Article I, to his Section 19 state of procedural the 6 North due process Carolina claim, Constitution, commonly referred to as the Law of the Land Clause, provides that No person shall be . . . in any manner deprived of his life, liberty, or property, but by the law of the land. Locklear contends that defendants violated his rights under the Law of the Land Clause when they deprived him of his property interest in continued employment with the Town without giving him a meaningful opportunity to grieve his discharge. Even assuming Locklear had a cognizable property interest in continued employment, his Law of the Land Clause claim fails because he had an adequate state remedy. In particular, under North Carolina law, a plaintiff may not assert a direct claim under the North Carolina Constitution if the plaintiff has an adequate state remedy at common law or under state statute. See, e.g., Copper ex rel. Copper v. Denlinger, 688 S.E.2d 426, 429 (N.C. 2010); Corum v. Univ. of N.C. Through Bd. of Govs., 413 S.E.2d 276, 289 (N.C. 1992). And North Carolina courts have held that breach of contract is an adequate state remedy for a governmental employee claiming that he was denied procedural due process because he was terminated without being afforded the opportunity to go through the grievance procedures set out in 7 his employment contract.* Ware v. Fort, 478 S.E.2d 218, 222 (N.C. App. 1996). Regarding his wrongful discharge claim, Locklear theorizes that the defendants fired him for exercising his right to free speech and for reporting criminal misconduct. As a threshold matter, we note that Locklear s wrongful discharge claim against the individual defendants fails because, under North Carolina law, a wrongful discharge claim may only be brought against an individual s employer, in this case the Town. Iglesias v. Wolford, 539 F. Supp. 2d 831, 840 (E.D.N.C. 2008) (citing Houpe v. City of Statesville, 497 S.E.2d 82, 89 (N.C. App. 1998). Turning claim, to under the Locklear, North generally merits of Locklear s Carolina may be law fired wrongful at-will for any discharge employees, reason. like Coman v. Thomas Mfg. Co., Inc., 381 S.E.2d 445, 446 (N.C. 1989). North Carolina rule, courts recognize a narrow exception to this precluding employers from firing employees for reasons that are contrary to public policy. Id. at 447. In particular, a governmental employer, like the Town, may not fire an employee for exercising his right to speak freely on matters of public concern. Corum, 413 S.E.2d at 289. * To establish a free speech We grant Locklear s motion under Federal Rule of Appellate Procedure 28 for leave to file a copy of the Town s personnel policies and procedures as an attachment to his brief. 8 wrongful discharge claim, a plaintiff must show that his speech was the motivating or but for cause of his termination. Evans v. Cowan, 510 S.E.2d 170, 175 (N.C. App. 1999). We agree with the district court that Locklear s free speech claim fails because the complaint does not identify any speech, protected or otherwise, he engaged in that precipitated his termination. reporting Locklear, 2012 WL 6701784, at *2. criminal misconduct, Locklear As for identifies three instances where his supervisors directed him not to pursue a potentially meritorious investigation. But the complaint does not allege that he reported his supervisors alleged misconduct to anyone or that any of these incidents motivated or were the but for Therefore, cause his of-or wrongful were even related termination claim to-his also termination. was properly dismissed. III. For the foregoing reasons, the district s decision is affirmed. AFFIRMED 9

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