Autry v. N.C.D.O.C. ( 1996 )

This matter originally came on for determination by Commissioner Ballance upon defendant's Motion to Dismiss the claim. The Deputy Commissioner, upon review of plaintiff's affidavit, found and concluded that plaintiff's affidavit does not allege ordinary negligence by defendant or defendant's agents or employees. Further, Commissioner Ballance found and concluded that it appeared to her that plaintiff's complaint alleges intentional or criminal conduct which is not actionable under the Tort Claims Act.

Based upon those findings, Commissioner Ballance ordered that plaintiff's claim be dismissed with prejudice based upon the fact that the Industrial Commission has no jurisdiction over this claim. It is from this determination that plaintiff appeals.

The undersigned have reviewed the Order as well as all written submissions of both plaintiff and defendant. Nowhere on plaintiff's Form 44, Brief, or Affidavit, is there an allegation of any action or omission which the undersigned feel would constitute ordinary negligence by defendant or defendant's agents or employees. Any allegations that may be drawn from plaintiff's complaint are allegations of intentional conduct, criminal conduct, or violation of plaintiff's civil rights. The plaintiff alleged that the North Carolina Department of Correction violated its own procedures when it placed him into administrative segregation. The decision to place inmates into administrative segregation is not a negligence, but rather a deliberate, intentional decision. Intentional conduct is not actionable under the North Carolina Tort Claims Act. Collins v. North CarolinaParole Commission, 118 N.C. App. 544 (1995).

Accordingly, plaintiff's claim must necessarily be DISMISSED due to the lack of jurisdiction of the Industrial Commission to hear this matter.

This the ___________ day of _________________________, 1996.

S/ _______________________ J. HOWARD BUNN, JR. CHAIRMAN

CONCURRING:

S/ _______________________ LAURA K. MAVRETIC COMMISSIONER

S/ _______________________ THOMAS J. BOLCH COMMISSIONER

JHB/nwm