Byrd v. N.C. D.O.C.

• Court: North Carolina Industrial Commission
• Decided: February 28, 2005
• Docket: I.C. NO. TA-16760
• Status: Published

Opinion

*********** The undersigned have reviewed the prior Order of Dismissal based upon the record of the proceedings Deputy Commissioner Ledford. The appealing party has not shown good grounds to reconsider the evidence, receive further evidence, rehear the parties or their representatives or amend the Decision and Order.

*********** Based upon the competent evidence of record, the Full Commission makes the following

FINDINGS OF FACT 1. Plaintiff filed this claim alleging negligence against the employees of the N.C. Department of Correction for negligence and breach of contract regarding the length of his incarceration from 1984 through 2000 and the terms of a plea agreement which was made in 1984, fifteen years prior to the filing of this tort claim.

2. Plaintiff's current period of incarceration began in 2000 and is related to offenses for which he was convicted May 9, 2000.

3. Defendant filed a Motion to Dismiss for lack of jurisdiction.

*********** The foregoing Findings of Fact engender the following:

CONCLUSIONS OF LAW 1. Plaintiff has failed to state a claim upon which relief may be granted. Defendant is entitled to a dismissal on the grounds that there are no allegations or evidence of negligent acts and allegations of intentional acts and violations of statutes are not within the subject matter jurisdiction of the Industrial Commission. Jenkins v. NorthCarolina Department of Motor Vehicles, 244 N.C. 560, 94 S.E.2d 577 (1956).

2. Furthermore, plaintiff has failed to name any negligent employee or agent of defendant. To recover under the Tort Claims Act, a plaintiff must identify the specific employees alleged to have been negligent and set forth the specific act or acts of negligence relied upon. Ayscoe v.North Carolina State Highway Commission, 270 N.C. 100, 153 S.E.2d 823 (1967).

*********** ORDER 1. Plaintiff's claim under the State Tort Claims Act must be and is hereby DISMISSED WITH PREJUDICE.

2. No costs are taxed as plaintiff was permitted to file this civil action in forma pauperis.

This the 16th day of February 2005.

S/_______________ DIANNE C. SELLERS COMMISSIONER

CONCURRING:

S/_____________ THOMAS J. BOLCH COMMISSIONER

S/____________ BUCK LATTIMORE CHAIRMAN