STATE OF NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE. SUPERIOR COURT DIVISION NEW HANOVER COUNTY FILE NO. 19 CVS 2745 JOHN DOES 1 to 5, inclusive, and JOHN DOE 6, by and through his Guardian ad litem, all individually and on behalf of all others similarly situated, Plaintiffs, v. MOTION TO DISMISS NEW HANOVER COUNTY BOARD OF EDUCATION; MICHAEL EARL KELLY; JAMES RICKIE “RICK” HOLLIDAY; TIMOTHY SCOTT MARKLEY; and MIKE ROES 1 to 10, inclusive. Defendants. Defendants New Hanover County Board of Education (“Board”) and Timothy Markley (“Markley”), by and through counsel, move for dismissal of all claims against Markley and certain claims against the Board. In support of this Motion, the Board and Markley show the Court the following: 1. The Complaint in this action was filed on July 23, 2019; 2. The Amended Complaint in this action was filed July 30, 2019; 3. Claims against Defendant Markley are made against him in his official capacity only, Official capacity claims against individuals when the governmental entity itself is named as a defendant are redundant and should be dismissed. See, e.g, Moore v. City of Creedmoor, 345 N.C. 356, 367, 481 S.E.2d 14, 21-22 (1997); May v. City of Durham, 136 N.C. App. 578, 584, 525 S.E.2d 223, 229 (2000). 4, All claims against Defendant Markley should be dismissed for failure to state a claim upon which relief may be granted pursuant to Rule 12(6)(6).5. Any claims against Defendant Markley in his individual capacity should be dismissed based on public official immunity. 6. Plaintiffs’ Fourth, Eighth, and Tenth Causes of Action (Breach of Fiduciary Duty, Invasion of Privacy, and Negligence Per Se) should be dismissed for failure to state a claim upon which relief may be granted pursuant to Rule 12(b)(6). 7 All claims of Plaintiffs against Defendant New Hanover County Board of Education based on vicarious liability or respondeat superior for the criminal conduct of Defendant Michael Kelly should be dismissed for failure to state a claim upon which relief may be granted pursuant to Rule 12(6)(6). 8. To the extent that the Amended Complaint seeks punitive damages against Defendants Board or Markley, such claims should be dismissed pursuant to Rule 12(b)(6) because punitive damages are not available against the Board, a governmental entity. Ripellino v. N. Carolina Sch. Boards Ass'n, Inc., 158 N.C. App. 423, 431, 581 S.E.2d 88, 94 (2003). Because Defendant Markley is sued in his official capacity, punitive damages are likewise unavailable against him. 9. Claims by John Doe 2, John Doe 3, and John Doe 5 arose, on the face of the complaint, outside the statute of limitations and should be dismissed. WHEREFORE, Defendants Board and Markley respectfully request that Plaintiffs? claims against them be dismissed in whole or in part. s Respectfully submitted, this the % | “day of October 2019.THARRINGTON SMITH, L.L?. N.C. State Bar No. 24543 Stephen G. Rawson NC State Bar No. 41542 150 Fayetteville Street, Suite 1800 P.O. Box 1151 Raleigh, North Carolina 27602-1151 “Telephone: (919) 821-4711 Facsimile: (919) 829-1583 E-mail: dstagnerf@tharringtonsmith.com srawson@tharringtonsmith,com Attorneys for Defendants New Hanover County Board of Education and Timothy Scott MarkleyCERTIFICATE OF SERVICE Thereby certify that a copy of the foregoing MOTION TO DISMISS was served upon the plaintiffs in this action by placing it in the U.S. mail, postage prepaid, addressed to: Joe! R. Rhine Katie Weaver Hartzog Martin A. Ramey HARTZOG LAW GROUP RHINE LAW FIRM, P.C. 1903 N. Harrison Ave., Ste 200 1612 Military Cutoff Road, Suite 300 Cary, NC 27513 Wilmington, NC 28403 Attorneys for Defendant Rick Holliday James W. Lea Ryan B. Schultz Michael Earl Kelly, NCDPS #1616931 THE LEA/SCHULTZ LAW FIRM, P.C. North Carolina Pasquotank Prison 1612 Military Cutoff Road, Suite 300 527 Commerce Drive ‘Wilmington, NC 28403 Elizabethtown, NC 27906 Attorneys for Plaintifs Pro Se Defendant David A. Creech DAVID CREECH LAW FIRM, PLLC 516 Market Street Wilmington, NC 28401 James L. Henson CHRISTINA RIVENBARK & ASSOCIATES 4009 Oleander Drive ‘Wilmington, NC 28403 Attorneys for Plaintiff John Doe 6 This the Z1 * day of October 2019. ¥ 2 SMITH, LLP