An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of A p p e l l a t e P r o c e d u r e .
NO. COA13-1194 NORTH CAROLINA COURT OF APPEALS
Filed: 1 July 2014
JOSEPH MICHAEL GRIFFITH, Plaintiff,
v. Bertie County No. 13 CVS 235 NORTH CAROLINA PRISONER LEGAL SERVICES et al., Defendants.
Appeal by Plaintiff from Order entered 17 July 2013 by
Judge Cy A. Grant in Bertie County Superior Court. Heard in the
Court of Appeals 19 March 2014.
Joseph Griffith pro se.
No brief for Defendants.
STEPHENS, Judge.
I. Factual Background and Procedural History
Plaintiff is an inmate in the custody of the Division of
Adult Correction of the North Carolina Department of Public
Safety (“DPS”) and incarcerated at Bertie Correctional
Institution in Bertie County, North Carolina. Plaintiff has been
incarcerated since 27 November 2002. On 7 March 2012, Plaintiff -2- filed a petition in Bertie County Superior Court “for an order
allowing me to bring suit in this action as an indigent.” That
same day Plaintiff submitted an affidavit of indigency and a
complaint alleging causes of action against North Carolina
Prisoner Legal Services, Inc. (“NCPLS”); the executive director
of NCPLS, Mary Pollard; DPS; the secretary of DPS, “Mr. Young”1;
North Carolina Indigent Defense Services (“IDS”); Thomas K.
Maher; the State of North Carolina; and Beverly Perdue
(collectively, “Defendants”). The complaint includes the
following pertinent allegations:
Defendants have (a) failed to provide Plaintiff with
adequate support services for the purpose of prosecuting various
legal actions; (b) declined to represent him when it is unlikely
that there would be a large financial gain for Defendants; and
(c) declined to represent him in lawsuits against the State,
“family matters,” and “legal disputes with persons outside the
prison context,” among other things. According to Plaintiff,
these actions constitute a violation of (i) Plaintiff’s right to
adequate access to the courts under Lewis v. Casey, 518 U.S.
343, 135 L. Ed. 2d 606 (1996) and Bounds v. Smith, 430 U.S. 817,
1 Plaintiff does not include the first name of Defendant Young. -3- 52 L. Ed. 2d 72 (1977); and (ii) a valid and enforceable
contract between NCPLS and IDS to provide such support.
Attributing these alleged violations to insufficient
funding for NCPLS, among other causes, Plaintiff requested that
the trial court order DPS to provide NCPLS with an additional
three million dollars so that NCPLS can provide adequate legal
services for all indigent defendants. Plaintiff also requested
the implementation of an “adequate court access program which
includes the necessary monetary resources, support services[,]
and materials needed to ensure Plaintiff . . . effective and
meaningful court access . . . .” One year and four months later,
on 15 July 2013, the trial court dismissed Plaintiff’s petition
to sue as frivolous. Plaintiff seeks to appeal that order.
II. Appellate Review
Plaintiff includes a handwritten notice of appeal in the
record. The notice indicates that it was submitted on 12 August
2013, but there is no indication that it was timely filed with
the clerk of court or served on the alleged Defendants.
Recognizing that his appeal might not be proper, Plaintiff
designates his brief as “Plaintiff-Appellant’s Brief or in the
alternative Plaintiff’s petition for writ of certiorari.”
(Italics added). In addition, Plaintiff notes in his section -4- entitled “Grounds for Appellate Review” that he seeks review
either of a final judgment or by means of certiorari under Rule
21 of the North Carolina Rules of Appellate Procedure. We grant
appellate review pursuant to Rule 21.
Because Plaintiff’s notice of appeal does not indicate that
it was timely filed with the clerk of superior court or that
copies were served on the alleged Defendants, it does not
comport with the requirements of Rule 3, and we are without
jurisdiction to review the case. N.C.R. App. P. 3(a); see also
Von Ramm v. Von Ramm, 99 N.C. App. 153, 156, 392 S.E.2d 422, 424
(1990) (“Without proper notice of appeal, this Court acquires no
jurisdiction.”) (citation and internal quotation marks omitted).
Under Rule 21(a)(1), however, this Court has discretion to treat
a purported appeal as a petition for writ of certiorari and
grant that petition “when the right to prosecute an appeal has
been lost by failure to take timely action . . . .” N.C.R. App.
P. 21(a)(1); Anderson v. Hollifield, 345 N.C. 480, 482, 480
S.E.2d 661, 663 (1997) (“. . . Rule 21(a)(1) gives an appellate
court the authority to review the merits of an appeal by
certiorari even if the party has failed to file notice of appeal
in a timely manner.”) (italics added); see also Fearrington v.
Univ. of North Carolina at Chapel Hill, 126 N.C. App. 774, 777– -5- 78, 487 S.E.2d 169, 172 (1997) (treating the petitioner’s notice
as a writ of certiorari and reviewing it under Rule 21(a)(1)
when the petitioner’s brief indicated that the notice was filed
from the wrong order). We elect to do so here and proceed with a
review of Plaintiff’s arguments on the merits.
III. Discussion
Plaintiff argues that the trial court abused its discretion
by dismissing his complaint as frivolous because (1) the court
had a duty to consider his complaint on the merits and (2)
Plaintiff had a right as a third-party beneficiary to bring suit
to enforce the contract between NCPLS and IDS. We affirm.
A. Constitutional Claims Presented to the Trial Court
In his first argument on appeal, Plaintiff asserts that the
trial court had a duty to consider his complaint on the merits
and erred in failing to do so. Pointing out that his complaint
challenges certain government actions as violating “numerous
sections of the North Carolina Constitution and parts of the
United States Constitution,” Plaintiff asserts that the trial
court violated its duty, as articulated by our Supreme Court in
Leandro v. State, 346 N.C. 336, 345, 488 S.E.2d 249, 253 (1997)
(“When a government action is challenged as unconstitutional,
the courts have a duty to determine whether that action exceeds -6- constitutional limits.”), by dismissing his complaint as
frivolous. We disagree.
The trial court’s authority to review the complaint of an
inmate who files a pro se petition to proceed as an indigent is
established in section 1-110(b) of the North Carolina General
Statutes:
Free access — add to your briefcase to read the full text and ask questions with AI
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of A p p e l l a t e P r o c e d u r e .
NO. COA13-1194 NORTH CAROLINA COURT OF APPEALS
Filed: 1 July 2014
JOSEPH MICHAEL GRIFFITH, Plaintiff,
v. Bertie County No. 13 CVS 235 NORTH CAROLINA PRISONER LEGAL SERVICES et al., Defendants.
Appeal by Plaintiff from Order entered 17 July 2013 by
Judge Cy A. Grant in Bertie County Superior Court. Heard in the
Court of Appeals 19 March 2014.
Joseph Griffith pro se.
No brief for Defendants.
STEPHENS, Judge.
I. Factual Background and Procedural History
Plaintiff is an inmate in the custody of the Division of
Adult Correction of the North Carolina Department of Public
Safety (“DPS”) and incarcerated at Bertie Correctional
Institution in Bertie County, North Carolina. Plaintiff has been
incarcerated since 27 November 2002. On 7 March 2012, Plaintiff -2- filed a petition in Bertie County Superior Court “for an order
allowing me to bring suit in this action as an indigent.” That
same day Plaintiff submitted an affidavit of indigency and a
complaint alleging causes of action against North Carolina
Prisoner Legal Services, Inc. (“NCPLS”); the executive director
of NCPLS, Mary Pollard; DPS; the secretary of DPS, “Mr. Young”1;
North Carolina Indigent Defense Services (“IDS”); Thomas K.
Maher; the State of North Carolina; and Beverly Perdue
(collectively, “Defendants”). The complaint includes the
following pertinent allegations:
Defendants have (a) failed to provide Plaintiff with
adequate support services for the purpose of prosecuting various
legal actions; (b) declined to represent him when it is unlikely
that there would be a large financial gain for Defendants; and
(c) declined to represent him in lawsuits against the State,
“family matters,” and “legal disputes with persons outside the
prison context,” among other things. According to Plaintiff,
these actions constitute a violation of (i) Plaintiff’s right to
adequate access to the courts under Lewis v. Casey, 518 U.S.
343, 135 L. Ed. 2d 606 (1996) and Bounds v. Smith, 430 U.S. 817,
1 Plaintiff does not include the first name of Defendant Young. -3- 52 L. Ed. 2d 72 (1977); and (ii) a valid and enforceable
contract between NCPLS and IDS to provide such support.
Attributing these alleged violations to insufficient
funding for NCPLS, among other causes, Plaintiff requested that
the trial court order DPS to provide NCPLS with an additional
three million dollars so that NCPLS can provide adequate legal
services for all indigent defendants. Plaintiff also requested
the implementation of an “adequate court access program which
includes the necessary monetary resources, support services[,]
and materials needed to ensure Plaintiff . . . effective and
meaningful court access . . . .” One year and four months later,
on 15 July 2013, the trial court dismissed Plaintiff’s petition
to sue as frivolous. Plaintiff seeks to appeal that order.
II. Appellate Review
Plaintiff includes a handwritten notice of appeal in the
record. The notice indicates that it was submitted on 12 August
2013, but there is no indication that it was timely filed with
the clerk of court or served on the alleged Defendants.
Recognizing that his appeal might not be proper, Plaintiff
designates his brief as “Plaintiff-Appellant’s Brief or in the
alternative Plaintiff’s petition for writ of certiorari.”
(Italics added). In addition, Plaintiff notes in his section -4- entitled “Grounds for Appellate Review” that he seeks review
either of a final judgment or by means of certiorari under Rule
21 of the North Carolina Rules of Appellate Procedure. We grant
appellate review pursuant to Rule 21.
Because Plaintiff’s notice of appeal does not indicate that
it was timely filed with the clerk of superior court or that
copies were served on the alleged Defendants, it does not
comport with the requirements of Rule 3, and we are without
jurisdiction to review the case. N.C.R. App. P. 3(a); see also
Von Ramm v. Von Ramm, 99 N.C. App. 153, 156, 392 S.E.2d 422, 424
(1990) (“Without proper notice of appeal, this Court acquires no
jurisdiction.”) (citation and internal quotation marks omitted).
Under Rule 21(a)(1), however, this Court has discretion to treat
a purported appeal as a petition for writ of certiorari and
grant that petition “when the right to prosecute an appeal has
been lost by failure to take timely action . . . .” N.C.R. App.
P. 21(a)(1); Anderson v. Hollifield, 345 N.C. 480, 482, 480
S.E.2d 661, 663 (1997) (“. . . Rule 21(a)(1) gives an appellate
court the authority to review the merits of an appeal by
certiorari even if the party has failed to file notice of appeal
in a timely manner.”) (italics added); see also Fearrington v.
Univ. of North Carolina at Chapel Hill, 126 N.C. App. 774, 777– -5- 78, 487 S.E.2d 169, 172 (1997) (treating the petitioner’s notice
as a writ of certiorari and reviewing it under Rule 21(a)(1)
when the petitioner’s brief indicated that the notice was filed
from the wrong order). We elect to do so here and proceed with a
review of Plaintiff’s arguments on the merits.
III. Discussion
Plaintiff argues that the trial court abused its discretion
by dismissing his complaint as frivolous because (1) the court
had a duty to consider his complaint on the merits and (2)
Plaintiff had a right as a third-party beneficiary to bring suit
to enforce the contract between NCPLS and IDS. We affirm.
A. Constitutional Claims Presented to the Trial Court
In his first argument on appeal, Plaintiff asserts that the
trial court had a duty to consider his complaint on the merits
and erred in failing to do so. Pointing out that his complaint
challenges certain government actions as violating “numerous
sections of the North Carolina Constitution and parts of the
United States Constitution,” Plaintiff asserts that the trial
court violated its duty, as articulated by our Supreme Court in
Leandro v. State, 346 N.C. 336, 345, 488 S.E.2d 249, 253 (1997)
(“When a government action is challenged as unconstitutional,
the courts have a duty to determine whether that action exceeds -6- constitutional limits.”), by dismissing his complaint as
frivolous. We disagree.
The trial court’s authority to review the complaint of an
inmate who files a pro se petition to proceed as an indigent is
established in section 1-110(b) of the North Carolina General
Statutes:
Whenever a motion to proceed as an indigent is filed pro se by an inmate in the custody of the Division of Adult Correction of the Department of Public Safety, the motion to proceed as an indigent and the proposed complaint shall be presented to any superior court judge of the judicial district. This judge shall determine whether the complaint is frivolous. In the discretion of the court, a frivolous case may be dismissed by order. The clerk of superior court shall serve a copy of the order of dismissal upon the prison inmate. If the judge determines that the inmate may proceed as an indigent, service of process upon the defendant shall issue without further order of the court.
N.C. Gen. Stat. § 1-110(b) (2013) (italics added). This Court
has clarified that
[a] claim is frivolous if a proponent can present no rational argument based upon the evidence or law in support of it. In determining whether a complaint is frivolous, the standard is not the same as in a ruling on a motion under Rule 12(b)(6). Instead, we look with a far more forgiving eye in examining whether a claim rests on a meritless legal theory. We review such dismissals for abuse of discretion. -7- Griffith v. N.C. Dep’t of Corr., 196 N.C. App. 173, 174, 675
S.E.2d 72, 73 (2009) (citations, internal quotation marks, and
certain brackets omitted).
Section 1-110 plainly states that the superior court judge
shall “determine whether the complaint is frivolous.” As we
noted in Griffith, this process involves reviewing the evidence
and law presented by the plaintiff and determining whether the
two, together, support a meritorious legal theory. Id. Such a
determination necessarily involves a consideration of the
allegations in the plaintiff’s complaint — including allegations
of unconstitutional government action. Thus, even accepting
Plaintiff’s assertion that the trial court had a duty to
consider the allegations in his complaint, we find no evidence
that the trial court failed to do so here. The record indicates
that Plaintiff filed his petition on 7 March 2012 and,
approximately one year and four months later, the trial court
concluded that the complaint was frivolous. Plaintiff does not
argue that the trial court was required to draft a more detailed
order or that the order was somehow deficient (e.g., because
Plaintiff’s claim is not, in fact, frivolous). Therefore, to the
extent the trial court had a duty to review Plaintiff’s -8- arguments, we conclude that it fulfilled such duty. Accordingly,
Plaintiff’s first argument is overruled.
B. Plaintiff’s Third-Party Beneficiary Claim
In his second argument on appeal, Plaintiff contends that
the trial court erred by dismissing his complaint as frivolous
because Plaintiff has a “right to use the courts to establish
the validity and/or enforcement of a state contract that he was
a direct third-party beneficiary of.” Plaintiff elaborates by
pointing out that the practice of allowing a third-party
beneficiary to bring an action to enforce a contract made for
his benefit is “well established in this jurisdiction.” This
argument is without merit.
The mere existence of a third-party beneficiary’s general
contract right to bring suit to enforce an agreement between the
promisor and the promisee has no bearing on the enforceability
of that agreement. While Plaintiff is correct that a third-party
beneficiary may, under certain circumstances, bring suit against
the primary parties to a contract, see, e.g., James River
Equip., Inc. v. Tharpe’s Excavating, Inc., 179 N.C. App. 336,
343, 634 S.E.2d 548, 554 (2006) (“A third party beneficiary to
an agreement may properly maintain an action for its breach,
where the agreement is made for the third party’s direct benefit -9- and the benefit accruing to him is not merely incidental.”)
(citation, internal quotation marks, and brackets omitted), this
general right does not resolve whether the particular
allegations in Plaintiff’s complaint are frivolous or
meritorious. As the trial court’s order makes clear, Plaintiff
was barred from suing Defendants because he did not allege any
rational legal theory supporting his claim for relief, not
because he was suing Defendants as an alleged third-party
beneficiary.
On appeal, Plaintiff makes no argument that the allegations
in his complaint are valid or, at a minimum, not frivolous.
Instead, he merely explains the legal basis for bringing suit as
a third-party beneficiary. This argument does not support
overturning the trial court’s order for abuse of discretion.
Accordingly, we affirm the order of the trial court.
AFFIRMED.
Judges GEER and DILLON concur.
Report per Rule 30(e).