UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ANTHONY LAMBERT, SR.; MARION

KNIGHT LAMBERT,

Plaintiffs-Appellants,

v.

BRENDA G. WILLIAMS, individually

and in her official capacity as a

social worker; VELVEETA R. REID,

individually and in her official

capacity as a social worker;

DARLENE REID, individually and in

her official capacity as a social

worker; ALICE E. STALLINGS,

individually and in her official

No. 98-2070

capacity as service supervisor;

VIOLA SPIVEY, individually; WILLIE

BINES, individually; GWENDOLYN C.

COLEMAN, individually and in her

capacity as Director, Pasquotank

County Department of Social

Services; PASQUOTANK COUNTY

DEPARTMENT OF SOCIAL SERVICES;

PASQUOTANK COUNTY BOARD OF

SOCIAL SERVICES; PASQUOTANK

COUNTY, NORTH CAROLINA; BOARD OF

COMMISSIONERS, PASQUOTANK

COUNTY,

Defendants-Appellees.

Appeal from the United States District Court

for the Eastern District of North Carolina, at Elizabeth City.

Terrence W. Boyle, Chief District Judge.

(CA-98-9-2-BO)
Submitted: December 15, 1998

Decided: December 29, 1998

Before MURNAGHAN, MICHAEL, and MOTZ, Circuit Judges.

_________________________________________________________________

Affirmed in part and vacated and remanded in part by unpublished

per curiam opinion.

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COUNSEL

Anthony Lambert, Sr., Marion Knight Lambert, Appellants Pro Se.

Robert Harrison Sasser, III, Coleman M. Cowan, WOMBLE, CARLYLE, SANDRIDGE & RICE, Raleigh, North Carolina; Thomas

Giles Meacham, Jr., OFFICE OF THE ATTORNEY GENERAL OF

NORTH CAROLINA, Raleigh, North Carolina, for Appellees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Anthony Lambert, Sr., and Marion Lambert appeal from the district

court's order dismissing their 42 U.S.C.A. § 1983 (West Supp. 1998)

action as barred by res judicata. As to all but the malicious prosecution claim, we affirm on the reasoning of the district court. The Lamberts filed earlier actions alleging misconduct by several parties

involved in the Lambert children's child abuse and neglect case.

Because there were final judgments on the merits in the earlier

actions, identity of the cause of action in the earlier cases and the

instant case, and identity of the parties or their privies, we find that

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the district court correctly concluded that all claims but that of malicious prosecution are barred by res judicata. See Hogan v. Cone Mills

Corp., 337 S.E.2d 477, 482 (N.C. 1985).

The Lamberts allege that Defendants maliciously pursued the child

abuse and neglect case. To support a malicious prosecution claim in

North Carolina, a "[p]laintiff must establish four elements[:] . . . (1)

defendant initiated the earlier proceeding; (2) malice on the part of the

defendant in doing so; (3) lack of probable cause for the initiation of

the earlier proceeding; and (4) termination of the earlier proceeding

in favor of the plaintiff." Best v. Duke Univ., 448 S.E.2d 506, 510

(N.C. 1994). Here, the fourth element, termination of the prior proceeding in the Lamberts' favor, did not occur until February 1995.

Both of the Lamberts' earlier actions ended before 1995. Because the

malicious prosecution claim was not ripe until 1995, res judicata

based on the two earlier cases does not preclude the Lamberts from

raising this claim.

For these reasons, we vacate in part and remand for further proceedings on the malicious prosecution claim. We dispense with oral

argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid

the decisional process.

AFFIRMED IN PART, VACATED AND REMANDED IN PART 

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