Austin v. State of North Carolina ( 2005 )

*********** The undersigned have reviewed the record and the prior Decision and Order filed by Deputy Commissioner Gheen. The appealing party has not shown good ground to reconsider the evidence, receive further evidence, or amend the Decision and Order. *********** Based upon the evidence of record, the Full Commission enters the following: FINDINGS OF FACT 1. Plaintiff Keith Oliver Austin is incarcerated by the North Carolina Department of Correction.

2. Austin's lengthy Affidavit essentially founds his civil action against the Durham County District Attorney's Office on several factual theories. They are:

a. An Assistant District Attorney in the Durham County District Attorney's Office used a plea agreement against him in issuing an additional warrant for his arrest as a habitual felon;

b. These actions of the Assistant District Attorney violated his constitutional right to due process of law;

c. The Assistant District Attorney used his plea agreement against him as evidence in the criminal trial of other offenses; and

d. The use of the plea agreement in evidence at his trial was a violation of his constitutional right to due process of law.

Austin founds his civil action against the State of North Carolina in

a. failing to properly train the employees of the Durham County District Attorney's Office; and

b. failing to require the errors in his conviction to be corrected; and

c. failing to prevent his wrongful conviction and imprisonment.

3. Austin's claim, while naming the "State of North Carolina," only names an Assistant District Attorney of Durham County as allegedly negligent.

4. The only defendant properly named is the Durham County District Attorney's Office.

*********** Based upon the forgoing findings of fact, the Full Commission concludes as follows: CONCLUSION OF LAW The Industrial Commission has no jurisdiction over the Durham County District Attorney's Office because it is not a state agency or department as required by the Tort Claims Act. N.C. Gen. Stat. § 143-291 et seq. *********** Based upon the foregoing findings of fact and conclusions of law, the Full Commission enters the following: ORDER 1. Plaintiff's claim is hereby DISMISSED WITH PREJUDICE.

2. No costs are taxed as Austin was permitted to file this civil actionin forma pauperis.

S/_______________ CHRISTOPHER SCOTT COMMISSIONER

CONCURRING:

S/____________________ THOMAS JEFFERSON BOLCH COMMISSIONER

S/_______________ DIANNE C. SELLERS COMMISSIONER