Gilbert v. North Carolina State Bar

In this case, plaintiff Willie Gilbert, a licensed attorney, alleges that defendant North Carolina State Bar acted vindictively when it filed sequential actions against him. The questions before this Court are whether plaintiff’s complaint properly presents a claim under 42 U.S.C. § 1983 for deprivation of his right to due process under the Fourteenth Amendment to the Constitution of the United States and whether the trial court’s permanent injunction of defendant’s administrative action was proper. As to the first question, we conclude that plaintiff failed to state a § 1983 claim because (1) substantive due process does not provide an individual right to be free from either vindictive or malicious prosecution of an administrative action, and (2) a plaintiff’s right to procedural due process under the Fourteenth Amendment is not violated by the tortious conduct of a state actor until and unless the State fails to provide an adequate remedy. As to the second question, because plaintiff must allow the State an opportunity to remedy the alleged deprivation of a protected right before he can state a viable § 1983 claim based on an alleged violation of his right to procedural due process, the trial court should not have imposed a permanent injunction. We vacate the decision of the Court of Appeals dismissing defendant’s appeal and remand to that court for further remand to Superior Court, Wilson County, with instructions to dissolve the permanent injunction, dismiss plaintiff’s substantive due process claim with prejudice, and dismiss plaintiff’s procedural due process claim without prejudice.

Between February 2000 and September 2003, defendant filed three complaints against plaintiff. Two were administrative actions (Gilbert I and Gilbert III) that were brought before defendant’s Disciplinary Hearing Commission (DHC), while the third was a civil action (Gilbert II) brought in District Court, Wake County, to recover money paid to one of plaintiff’s clients by defendant’s Client Security Fund (CSF). Defendant filed Gilbert I on 15 February 2000, alleging that plaintiff violated numerous provisions of the Revised Rules of Professional Conduct (RRPC) during his representation of three clients between 1997 and 1999. After a four-day hearing held on 17-18 July 2000 and 18-19 September 2000, the DHC entered an Order of Discipline concluding that plaintiff had violated Rules 1.5, 1.7, 1.15-2(h), 8.4(b), 8.4(c), 8.4(d), and 8.4(g) of the RRPC. The DHC suspended plaintiff’s license to practice law for five years, but stayed the last three years of the suspension upon enumerated conditions. The North Carolina Court of Appeals affirmed the DHC Order of Discipline, N.C. State Bar v. Gilbert, 151 N.C. App. 299, 566 *73S.E.2d 685, 2002 N.C. App. LEXIS 782 (2002) (unpublished), and this Court affirmed the Court of Appeals in a per curiam opinion, 357 N.C. 502, 586 S.E.2d 89 (2003).

Defendant filed Gilbert II on or about 18 April 2002, seeking reimbursement on behalf of the CSF for $4,627.43 that had been paid by the CSF to one of plaintiff’s clients. Following a bench trial held on 7-8 January 2004, the trial court awarded defendant the double damages allowed by N.C.G.S. § 84-13, for a total of $9,254.86 plus interest. On appeal, the Court of Appeals affirmed the trial court’s judgment in part and vacated in part, remanding the matter for additional findings as to plaintiff’s affirmative defenses. N.C. State Bar v. Gilbert, 176 N.C. App. 408, 626 S.E.2d 877, 2006 N.C. App. LEXIS 574 (2006) (unpublished). On remand, the trial court again entered judgment in favor of defendant. On appeal after remand, the Court of Appeals affirmed the trial court’s judgment in part and vacated in part, remanding for recalculation of interest pursuant to N.C.G.S. § 24-5(b). N.C. State Bar v. Gilbert, 189 N.C. App. 320, 663 S.E.2d 1 (2008).

Defendant filed Gilbert III on 12 September 2003, alleging that plaintiff misappropriated funds from his trust account and failed to pay client funds promptly to third parties. The transactions at issue identified by defendant in its Gilbert III complaint occurred in April 1998.

While Gilbert III was pending before the DHC, plaintiff filed the instant action in Superior Court, Wilson County, alleging, in part, that defendant was vindictively prosecuting the Gilbert III administrative action. Specifically, plaintiff alleged violations of both his substantive and his procedural due process rights. Plaintiff further alleged that the conduct at issue in Gilbert III was known or should have been known to defendant before Gilbert I was heard by the DHC. Plaintiff sought injunctive and monetary relief under 42 U.S.C. § 1983 and Article I of the North Carolina State Constitution.

On 9 April 2004, the trial court granted plaintiff an ex parte temporary restraining order, enjoining defendant from proceeding with further prosecution of Gilbert III. At the subsequent hearing on plaintiff’s motion for preliminary injunction, defendant argued that the trial court did not have jurisdiction to enjoin a disciplinary action that was pending before the DHC.1 Plaintiff responded that the DHC is not *74authorized to rule on the constitutional questions he raised and that superior court is an appropriate forum in which to bring a claim under § 1983.2 After considering arguments, the trial court granted plaintiff’s request for a preliminary injunction.

Defendant moved to dismiss the complaint on 3 August 2004, and plaintiff moved for summary judgment on 13 October 2004. The trial court treated defendant’s motion as one for summary judgment and, after hearing argument, expressed its concern.

THE COURT: .... [I]t smacks — to me, it smacks in the face of fairness when you have a man that you take a period of time, you go in and you find three people, you prosecute him on those three, and there were six people there at the same time, and instead of prosecuting him on six and doing whatever you want to do to him, you choose to do three of them, have a time of suspension to run, and then come back when that time of suspension runs and says, oh, yes, I got three more that I didn’t prosecute you on so I want to now prosecute you on those matters. And that, right or wrong, in my mind is where I have the problem, because — and that’s why I used the terms that the State Bar knew or should have known, having done the investigation of the trust account, that those violations were there.

The trial court entered an order on 12 September 2005 granting plaintiff’s motion for partial summary judgment on the issue of liability for violation of his Fourteenth Amendment right to due process. The trial court’s order permanently enjoined defendant from prosecuting Gilbert III and expressly retained jurisdiction over the matter for the purposes of enforcing the injunction, determining compensatory damages, and awarding attorneys’ fees.

Defendant appealed. The Court of Appeals concluded that defendant had appealed from an interlocutory order not affecting a substantial right and dismissed defendant’s appeal. Gilbert v. N. C. State Bar, 180 N.C. App. 690, 639 S.E.2d 143, 2006 N.C. App. LEXIS 2574 *75(2006) (unpublished). This Court allowed defendant’s petition for discretionary review as to two issues: (1) whether the Court of Appeals erred by dismissing defendant’s appeal as interlocutory, and (2) whether the superior court had jurisdiction to enjoin permanently defendant’s prosecution of plaintiff in an administrative disciplinary proceeding before the DHC.

We begin with defendant’s first issue. Defendant acknowledged in its brief to the Court of Appeals that the trial court’s order “may be considered interlocutory,” and the Court of Appeals so held. Gilbert, 180 N.C. App. 690, 639 S.E.2d 143, 2006 N.C. App. LEXIS 2467, at *1. Defendant argues that the order nevertheless may be appealed immediately because it affects a substantial right. See N.C.G.S. §§ l-277(a), 7A-27(d)(l) (2007).

A substantial right is “a legal right affecting or involving a matter of substance as distinguished from matters of form: a right materially affecting those interests which [one] is entitled to have preserved and protected by law: a material right.” Oestreicher v. Am. Nat’l Stores, Inc., 290 N.C. 118, 130, 225 S.E.2d 797, 805 (1976) (citation and internal quotation marks omitted). We consider whether a right is substantial on a case-by-case basis. “It is usually necessary to resolve the question in each case by considering the particular facts of that case and the procedural context in which the order from which appeal is sought was entered.” Waters v. Qualified Pers., Inc., 294 N.C. 200, 208, 240 S.E.2d 338, 343 (1978).

Plaintiff argues that this interlocutory appeal does not affect a substantial right. The Court of Appeals agreed with plaintiff, citing precedent from that court for the proposition that an order of a trial court allowing a party’s motion for summary judgment as to liability while retaining jurisdiction over the issue of damages, does not affect a substantial right. Gilbert, 180 N.C. App. 690, 639 S.E.2d 143, 2006 N.C. App. LEXIS 2467, at *8. In so doing, the Court of Appeals reasoned that “the most [defendant] will suffer from being denied an immediate appeal is a trial on the issue of damages.” Id. (internal quotation marks and citation omitted).

Although we express no opinion as to the merits of defendant’s Gilbert III complaint, we note that the trial court order from which defendant appeals includes a permanent injunction enjoining defendant from prosecuting Gilbert III. Ordinarily, “[a] permanent or perpetual injunction issues as a final judgment which settles the rights of the parties, after the determination of all issues raised.” Union *76Carbide Corp. v. Davis, 253 N.C. 324, 328, 116 S.E.2d 792, 794-95 (1960) (quoting Galloway v. Stone, 208 N.C. 739, 740, 182 S.E. 333, 333 (1935)); Tomlinson v. Cranor, 209 N.C. 688, 692, 184 S.E. 554, 556-57 (1936) (holding that the trial court erred in issuing a permanent injunction, which was a final judgment, because issues of material fact should have been determined by the jury). Thus, the permanent injunction issued by the trial court in this case is a remedy that forever prohibits defendant from prosecuting Gilbert III. In contrast, no such immediately enforceable remedy issues when a trial court merely enters partial summary judgment in a plaintiffs favor on the question of liability, as in the cases relied on by the Court of Appeals.

We conclude that defendant’s right to investigate and prosecute allegations of attorney misconduct is substantial. The State Bar is an agency of the State of North Carolina. N.C.G.S. § 84-15 (2007). Prior to the incorporation of the North Carolina State Bar in 1933, see id., the bar lacked legal autonomy and was not allowed to regulate itself. See Thomas W. Davis, President, N.C. Bar Ass’n, The Bar, Its Duties and Burdens, Address Before the North Carolina Bar Association (July 5, 1921), in Proceedings of the Twenty-Third Annual Session of the North Carolina Bar Association, 1921, at 6-20. As Chief Justice Stacy noted when he administered the oath of office to the first Bar Council after incorporation:

The Legislature, in its wisdom, has provided for the incorporation of the State Bar. It has vested in the Council of that Bar, which you are, the authority and the power to administer the act. It may interest you to know that the Legislature has repealed all of the statutes relating to disbarment in the State, and has vested in you the responsibility of making rules and regulations, and administering those rules and regulations relating to the admission and to the discipline and to the disbarment of members of the Bar of this State.

Edwin C. Bryson, The North Carolina State Bar, 1933-1950, 30 N.C. St. Bar Q. 8, 12 (1983); see also Baker v. Varser, 240 N.C. 260, 267, 82 S.E.2d 90, 95-96 (1954) (The General Assembly created the State Bar “to enable the bar to render more effective service in improving the administration of justice, particularly in dealing with the problem of. . . discipl[in]ing and disbarring attorneys at law.”). Thus, the power of the bar to police itself is both a privilege and a responsibility.

Defendant’s action in conducting this, or any other investigation, is undertaken pursuant to statute for the benefit of both the legal pro*77fession and the citizens of North Carolina. When defendant is prevented from carrying out these duties, the bar as well as the public may be at risk. Accordingly, we conclude that defendant’s right to carry out these statutory duties is substantial.

Next, we must determine whether defendant’s substantial right may be lost or prejudiced if the interlocutory order is not considered on appeal. Goldston v. Am. Motors Corp., 326 N.C. 723, 726, 392 S.E.2d 735, 736 (1990) (“[T]he deprivation of that substantial right must potentially work injury to [defendant] if not corrected before appeal from final judgment.”). The mere fact that a defendant has been enjoined does not constitute such an injury. However, because the trial court’s permanent injunction may prevent defendant from executing its statutory duties while plaintiff pursues an improperly pleaded action, an injury arises. See, e.g., Freeland v. Greene, 33 N.C. App. 537, 540, 235 S.E.2d 852, 854 (1977) (“The continuance of the injunction in effect and the denial of the motion to dismiss in this case do adversely affect important rights of [defendant North Carolina Board of Transportation] in connection with the performance by [it] of duties imposed by [statute]. We therefore consider this appeal.”). In addition, execution of the bar’s responsibility to protect the public requires that the bar have the ability timely to respond to allegations of wrongdoing and timely to act where those allegations prove true. As this case illustrates, a trial and subsequent appeal can consume years, leaving the public vulnerable. Accordingly, we conclude that defendant suffers the risk of injury if this interlocutory order is not considered. This interlocutory appeal is not barred.

We now consider defendant’s second issue. Plaintiff alleges that defendant prosecuted Gilbert III vindictively, as punishment both for his zealous defense of Gilbert I and II and for exercising his right to appeal the final judgments entered in those actions. Plaintiff further alleges that defendant’s vindictive prosecution of Gilbert III, an administrative proceeding, gives rise to an independent cause of action under § 1983 for violation of his Fourteenth Amendment right to substantive ánd procedural due process. However, vindictive prosecution is a doctrine recognized in the context of criminal cases only.3 In addressing vindictive prosecution, the Supreme Court of the *78United States has considered two issues: (1) It has limited the ability of a judge to impose a more lengthy sentence upon a defendant who successfully appealed, North Carolina v. Pearce, 395 U.S. 711, 23 L. Ed. 2d 656 (1969), and (2) it has held that, in a two-tier prosecutorial system such as we have in North Carolina, a prosecutor may not substitute a more serious charge when a defendant seeks a trial de novo on appeal from a lesser charge, Blackledge v. Perry, 417 U.S. 21, 40 L. Ed. 2d 628 (1974). Subsequent decisions of the United States Supreme Court have declined to expand the holdings of Pearce and Blackledge.4 The Supreme Court of the United States has never applied the theory of vindictive prosecution to a civil action or an administrative proceeding.

We find no contrary cases in North Carolina. As a result, because the theory of vindictive prosecution is limited to criminal cases, we conclude that plaintiff proceeded on an inapplicable theory and that plaintiffs complaint could be dismissed on this ground alone. Nevertheless, North Carolina is a notice pleading state, the import of plaintiff’s complaint is unmistakable, and defendant responded as if *79plaintiff had pleaded a recognized cause of action, such as malicious prosecution. Malicious prosecution is a theory applicable to criminal, civil, and administrative proceedings that have been instituted with malice and without probable cause. See, e.g., Carver v. Lykes, 262 N.C. 345, 352, 137 S.E.2d 139, 145 (1964) (“[O]ne who instigates or procures investigatory proceedings against another before an administrative board which has the power to suspend or revoke that other’s license to do business or practice his profession, is liable for the resulting damage if (1) the proceeding was instituted maliciously; (2) without probable cause; and (3) has terminated in favor of the person against whom it was initiated.”). It is designed to discourage and remedy the type of prosecutorial misconduct alleged by plaintiff in this case and is consistent with the “bad faith prosecution” language used in the trial court’s order. Accordingly, we will review plaintiff’s complaint as alleging malicious prosecution.

At the outset, we note that defendant argues that, because Gilbert III was still pending before the DHC when plaintiff filed his superior court action, the superior court lacked subject matter jurisdiction to hear plaintiff’s § 1983 action. However, defendant’s argument does not implicate the trial court’s jurisdiction to hear plaintiff’s § 1983 claim, which is established by N.C.G.S. § 7A-245(a)(4). As explained below, defendant’s argument actually identifies a pleading defect in plaintiff’s procedural due process claim. This is not the first time parties mistakenly have identified lack of subject matter jurisdiction as a basis for dismissal of a § 1983 action when, in fact, the actual ground supported by their argument was failure to state a claim for violation of a party’s due process rights. In Snuggs v. Stanly County Department of Public Health, this Court reviewed a trial court’s determination that it lacked subject matter jurisdiction and subsequent dismissal of the plaintiffs’ § 1983 claim. 310 N.C. 739, 314 S.E.2d 528 (1984) (per curiam). Observing that the plaintiffs had failed to allege that remedies provided by the State were inadequate, we “elect[ed] to treat the defendants’ [Rule 12(b)(1)] motions as motions brought under Rule 12(b)(6),” id. at 740, 314 S.E.2d at 529, and remanded the matter to superior court “for the entry of orders under Rule 12(b)(6) dismissing the plaintiffs’ claims for failure to state a claim upon which relief may be granted,” id. at 741, 314 S.E.2d at 529. Following this precedent, we now consider whether plaintiff has alleged a due process violation for which relief may be granted under § 1983.

When Congress enacted 42 U.S.C. § 1983, it conferred upon injured plaintiffs a federal remedy for violations of federal constitu*80tional rights committed by state actors. E.g., Felder v. Casey, 487 U.S. 131, 139, 101 L. Ed. 2d 123, 138 (1988). Section 1983 claims maybe litigated in either state or federal court. Howlett v. Rose, 496 U.S. 356, 358, 110 L. Ed. 2d 332, 342 (1990). Section 1983 provides in part:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State ... subjects ... any citizen of the United States ... 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. § 1983 (2000). Liability imposed under § 1983 is expressly conditioned upon deprivation of a federal constitutional right and is distinct from liability arising from commission of a common-law tort. Paul v. Davis, 424 U.S. 693, 697-701, 47 L. Ed. 2d 405, 411-14 (1976) (explaining that an ordinary common-law tort claim is not transformed into a § 1983 procedural due process claim simply because the tort is committed by a state actor). Thus, tortious conduct by a state actor may be redressed through a § 1983 action only when it infringes a federal constitutional right. Such tortious conduct is commonly said to give rise to a “constitutional tort.” See, e.g., Michael K. Cantwell, Constitutional Torts and the Due Process Clause, 4 Temp. Pol. & Civ. Rts. L. Rev. 317, 320 (1995); James J. Park, The Constitutional Tort Action as Individual Remedy, 38 Harv. C.R.-C.L. L. Rev. 393, 395-96 (2003).

No definitive test exists for determining whether conduct that establishes the common-law tort of malicious prosecution also violates a federal constitutional right. See generally 1 Steven H. Steinglass, Section 1983 Litigation in State Courts § 3:2, at 3-3 (2001) (noting that “[m]any of the most difficult questions confronting courts and litigants in § 1983 litigation concern the definition of the underlying constitutional rights, and whether and when conduct that gives rise to state tort actions is also a constitutional violation actionable under § 1983”). United States circuit courts disagree over whether the common-law elements of malicious prosecution are also essential components of a constitutional tort.5 Nevertheless, all *81circuits agree that a plaintiff must show that the alleged malicious prosecution infringes a constitutional right in order to invoke § 1983. Most frequently, the federal constitutional provisions cited in § 1983 claims based upon malicious prosecution are the First and Fourth Amendments and the Equal Protection Clause of the Fourteenth Amendment. See, e.g., Albright v. Oliver, 510 U.S. 266, 274-75, 127 L. Ed. 2d 114, 124 (1994) (plurality) (explaining that the Fourth Amendment, not substantive due process, addresses deprivations of liberty resulting from criminal prosecution); Dombrowski v. Pfister, 380 U.S. 479, 481-87, 14 L. Ed. 2d 22, 25-29 (1965) (considering a § 1983 action in which the plaintiffs alleged criminal prosecution undertaken for the purpose of silencing speech protected under the First Amendment); Awabdy v. City of Adelanto, 368 F.3d 1062, 1068-70 (9th Cir. 2004) (concluding that the plaintiff stated a claim under § 1983 by alleging prosecution undertaken for the purpose of depriving him of his First Amendment right to freedom of speech and Fourteenth Amendment right to equal protection). In § 1983 actions, the United States Supreme Court consistently distinguishes the protections conferred by the First Amendment, the Fourth Amendment, *82and the Equal Protection Clause of the Fourteenth Amendment, from the protection supplied by the Due Process Clause of the Fourteenth Amendment. E.g., Parratt v. Taylor, 451 U.S. 527, 536, 68 L. Ed. 2d 420, 429 (1981) (reasoning that a plaintiffs § 1983 procedural due process claim “differed] from the claims which were before [the Court] in Monroe v. Pape, [365 U.S. 167, 5 L. Ed. 2d 492 (1961)], which involved violations of the Fourth Amendment, and the claims presented in Estelle v. Gamble, 429 U.S. 97 [50 L. Ed. 2d 251] (1976), which involved alleged violations of the Eighth Amendment”), overruled in part on other grounds by Daniels v. Williams, 474 U.S. 327, 88 L. Ed. 2d 662 (1986); see also Edward Valves, Inc. v. Wake Cty., 343 N.C. 426, 434, 471 S.E.2d 342, 347 (1996) (“State remedies are only relevant when a Section 1983 action is brought for a violation of procedural due process.” (citations omitted)), cert. denied, 519 U.S. 1112, 136 L. Ed. 2d 839 (1997).

Plaintiffs malicious prosecution claim is based upon allegations in his complaint that defendant violated both plaintiffs substantive due process rights and his procedural due process rights. As to plaintiffs substantive due process claim, in Albright v. Oliver, a plurality of Justices of the United States Supreme Court observed that “[t]he protections of substantive due process have for the most part been accorded to matters relating to marriage, family, procreation, and the right to bodily integrity.” 510 U.S. at 272, 127 L. Ed. 2d at 122. Accordingly, the Court held that the plaintiff failed to state a § 1983 claim when he alleged that Illinois authorities violated his Fourteenth Amendment right to substantive due process by prosecuting criminal charges against him without probable cause. Id. at 268-69, 127 L. Ed. 2d at 120-21. In so holding, the plurality explained that the Fourth Amendment was drafted to address “deprivations of liberty that go hand in hand with criminal prosecutions.” Id. at 274, 127 L. Ed. 2d at 124. As a result, “with its scarce and open-ended guideposts,” id. at 275, 127 L. Ed. 2d at 124 (internal quotation marks omitted), “substantive due process may not furnish the constitutional peg on which to hang such a ‘tort,’ ” id. at 271 n.4, 127 L. Ed. 2d at 122 n.4. In light of the lack of “guideposts for responsible decisionmaking,” and the United States Supreme Court’s reluctance to expand the boundaries of substantive due process protection, see Collins v. City of Harker Heights, 503 U.S. 115, 125, 117 L. Ed. 2d 261, 273 (1992), we hold that any right plaintiff has to be free of malicious prosecution, including a claim based upon the allegedly malicious prosecution of a civil or administrative matter, does not arise from substantive due process rights under the Fourteenth Amendment.

*83Turning to plaintiffs procedural due process claim, we observe that, with few exceptions, United States circuit courts have considered the question of whether malicious prosecution infringes on a party’s procedural due process rights only in criminal cases, and then only in dicta. See, e.g., Pierce v. Gilchrist, 359 F.3d 1279, 1299 (10th Cir. 2004); Nieves v. McSweeney, 241 F.3d 46, 53 (1st Cir. 2001). We have found no holding that malicious initiation of a civil administrative proceeding, by itself, inflicts an injury giving rise to a constitutional tort. However, the Second and Tenth Circuit Courts of Appeals have each published one opinion reviewing a § 1983 claim in which a plaintiff alleged that malicious filing of an administrative action violated his or her right to procedural due process.

In Washington v. County of Rockland, the United States Court of Appeals for the Second Circuit considered the plaintiff correction officers’ claims that a county sheriff maliciously filed unjustified disciplinary charges against them in a civil administrative proceeding: 373 F.3d 310, 313 (2d Cir. 2004). Citing Albright v. Oliver, the Court held that a § 1983 action based upon an allegation that the defendant had initiated a malicious prosecution “may not be premised on a civil administrative proceeding” absent a violation of Fourth Amendment rights. Id. at 313, 315-17.

In Becker v. Kroll, the United States Court of Appeals for the Tenth Circuit considered a plaintiff medical doctor’s claim that Utah’s Medicaid Fraud Control Unit maliciously filed unjustified civil and criminal charges against her. 494 F.3d 904, 909 (10th Cir. 2007). Construing the plaintiff’s complaint liberally, the Court acknowledged that the plaintiff alleged “some injuries resulting from the filing of criminal charges against her that are outside the scope of the Fourth Amendment’s substantive and procedural protections,” id. at 918, such as infringement upon her “liberty interest in being free from unwarranted investigation and prosecution without probable cause” and “a property interest in the integrity of her medical and billing records,” id. at 919. The Court stated, but did not hold, that “[t]hese injuries might be cognizable as due process violations through a gap in constitutional protection created by Albright's limitation of § 1983 malicious prosecution claims to those based on the Fourth Amendment,” id. at 918, but then disposed of the plaintiff’s appeal on alternative grounds.

In light of Albright v. Oliver and the apparent uncertainty among United States circuit courts over the extent to which § 1983 supports an action when a plaintiff claims procedural due process violations *84based on malicious prosecution, including a claim based on prosecution of a civil or administrative action, we express no opinion whether defendant’s conduct infringes a “life, liberty, or property interest” that is protected by the Fourteenth Amendment. Such a holding would be essential to the success of plaintiff’s claim because “the Fourteenth Amendment does not require a remedy when there has been no ‘deprivation’ of a protected interest.” Davidson v. Cannon, 474 U.S. 344, 348, 88 L. Ed. 2d 677, 683 (1986). Instead, we resolve this issue on an alternative, but settled, legal ground.6

Even if this Court accepts plaintiff’s argument that defendant’s allegedly malicious prosecution of Gilbert III affects a constitutionally protected “life, liberty, or property interest,” plaintiff must clear the higher hurdle of showing deprivation of his constitutional rights without due process of law. “Nothing in [the Fourteenth] Amendment protects against all deprivations of life, liberty, or property by the State”; rather, “[t]he Fourteenth Amendment protects only against deprivations ‘without due process of law.’ ” Parratt, 451 U.S. at 537, 68 L. Ed. 2d at 430 (citation omitted). When a plaintiff is deprived of a constitutionally protected interest by the unauthorized, tortious conduct of a state actor, statutory and common-law postdeprivation remedies can provide the process that is due. Id. at 541-44, 68 L. Ed. 2d at 432-34 (stating and applying the rule to a plaintiff’s § 1983 procedural due process claim alleging deprivation of personal property); Hudson v. Palmer, 468 U.S. 517, 530-33, 82 L. Ed. 2d 393, 405-08 (1984) (applying the rule stated in Parratt to unauthorized, intentional deprivations of property); see also Zinermon v. Burch, 494 U.S. 113, 131-32, 108 L. Ed. 2d 100, 117-18 (1990) (extending the rule stated in Parratt to deprivations of liberty). In those cases, a Fourteenth Amendment procedural due process violation “is not complete until and unless” the State “refuses to provide a suitable postdeprivation remedy.” Hudson, 468 U.S. at 533, 82 L. Ed. 2d at 407-08; accord Edward Valves, 343 N.C. at 434, 471 S.E.2d at 347 (contrasting the importance of available state remedies in “a Section 1983 action . . . brought for violation of procedural due process” with their inapplicability in “a Section 1983 action based on a violation of a substantive constitutional right”).

The United States Supreme Court considers the existence of common-law tort actions, postdeprivation hearings, and other “pro*85cedural safeguards built into the statutory or administrative procedure of effecting the deprivation,” when evaluating the adequacy of a State’s postdeprivation remedies. Zinermon, 494 U.S. at 126, 108 L. Ed. 2d at 114. A plaintiff who has access to an adequate postdeprivation remedy does not sustain a constitutional injury under the Due Process Clause of the Fourteenth Amendment and cannot state a claim for relief on that basis under § 1983. Parratt, 451 U.S. 527, 68 L. Ed. 2d 420.

Malicious prosecution of an administrative action is a common-law tort in North Carolina. Carver, 262 N.C. at 351-52, 137 S.E.2d at 145 (stating the elements of the tort). Availability of a common-law tort action, standing alone, is an adequate postdeprivation remedy, even when successful litigation of the tort does not result in all the relief to which a plaintiff would be entitled under § 1983. E.g., Hudson, 468 U.S. at 535, 82 L. Ed. 2d at 408; Parratt, 451 U.S. at 544, 68 L. Ed. 2d at 434. Ancillary safeguards that protect the procedural due process rights of an attorney before the DHC include the ability to file motions and participate in a contested hearing before that tribunal; the right to be represented by counsel; the ability to petition the North Carolina Court of Appeals for prerogative writs; including prohibition; appeal of right to that court; and the ability to petition the trial division to stay an order of discipline pending resolution of an appeal. N.C.G.S. § 84-28(d1), (h) (2007); id. § 84-30 (2007); N.C. R. App. P. 22; 27 NCAC IB .0114 (June 2008). Because these postdeprivation remedies adequately safeguard plaintiff’s right to procedural due process, we conclude that plaintiff has failed to state a procedural due process claim for which relief may be granted under 42 U.S.C. § 1983.

This holding does not mean that plaintiff cannot pursue a properly pleaded § 1983 action, nor does it mean that such an action cannot be filed until the conclusion of defendant’s administrative action against plaintiff. A properly pleaded § 1983 action may proceed in parallel with an administrative action before a regulatory body. Nevertheless, in the case at bar, plaintiff sought to have defendant’s actions enjoined on the grounds that it was acting maliciously and had violated his procedural due process rights. The elements of a tort action alleging malicious prosecution of an administrative proceeding are: “(1) the proceeding was instituted maliciously; (2) without probable cause; and (3) has terminated in favor of the person against whom it was initiated.” Carver, 262 N.C. at 351-52, 137 S.E.2d at 144-45. Plaintiff’s evidence at the hearing on the parties’ summary *86judgment motions not only failed to forecast that plaintiff could establish these elements, it demonstrated that plaintiff could not establish them. Accordingly, no injunction was justified.

For the reasons stated above, the dismissal entered by the Court of Appeals is vacated. However, while the DHC and the Superior Court of North Carolina have concurrent jurisdiction over attorney discipline matters, N.C. State Bar v. Randolph, 325 N.C. 699, 701, 386 S.E.2d 185, 186 (1989) (per curiam), the superior court division has original subject matter jurisdiction over constitutional claims, N.C.G.S. § 7A-245(a)(4) (2007). Accordingly, this matter is remanded to the Court of Appeals for further remand to Superior Court, Wilson County, with instructions to dissolve the permanent injunction, dismiss plaintiffs § 1983 substantive due process claim with prejudice, and dismiss plaintiffs § 1983 procedural due process claim without prejudice.

VACATED AND REMANDED.