Carnahan ex rel. Carnahan v. Reed

MORRIS, Chief Judge.

Initially, we must concern ourselves with the question of plaintiffs standing to bring this action. Plaintiff prosecutes her action in several different capacities. Plaintiff is not a member of the class of all prisoners or former prisoners which she claims to represent. Therefore, her complaint does fail to state a cause of action insofar as it pertains to that class. G.S. 1A-1, Rule 23, provides in part:

Class Actions.

(a) Representation. — If persons constituting a class are so numerous as to make it impracticable to bring them all before the court, such of them, one or more, as will fairly insure the adequate representation of all may, on behalf of all, sue or be sued. . . .

The purpose of this requirement is to assure the adequacy of the representation afforded the class. As is obvious from the wording of the statute, one who is not a member of the represented class may not bring a class action representing that class. The record does not indicate that plaintiff is a prisoner nor does it indicate that she is a former prisoner. Therefore, she does not have the proper standing to bring this action on behalf of that class of persons. See English v. Realty Corp., 41 N.C. App. 1, 7, 254 S.E. 2d 223, 230, cert. denied, 297 N.C. 609, 257 S.E. 2d 217 (1979), citing 7 Wright and Miller, Federal Practice and Procedure: Civil § 1765, p. 626.

There is nothing in the record to indicate that plaintiff ever qualified as the personal representative of the deceased’s estate. G.S. 28A-18-1 provides:

Survival of actions to and against personal representative. — (a) Upon the death of any person, all demands whatsoever, and rights to prosecute or defend any action or special proceeding, existing in favor of or against such person, except as provided in subsection (b) hereof, shall survive to and against the personal representative or collector of his estate.

(b) The following rights of action in favor of a decedent do not survive:

(1) Causes of action for libel and for slander, except slander of title;

(2) Causes of action for false imprisonment;

(3) Causes of action where the relief sought could not be enjoyed, or granting it would be nugatory after death.

Under this section, all causes of action which had accrued in favor of Donald Carnahan survive his death, except the causes of action specified in subsection (b). The statute also designates the personal representative of the deceased as the person who may sue upon the surviving cause of action. McIntyre v. Josey, 239 N.C. 109, 79 S.E. 2d 202 (1953). See also G.S. 1A-1, Rule 17(a). Therefore, plaintiff simply as next of kin and as representative of the class of next of kin of deceased prisoners does not have standing to sue to enforce the constitutional rights of her husband or the class of deceased inmates which she claims were violated by the restrictions of 5 N.C. A.C. § 2D .0601(b).

Plaintiff maintains that as next of kin of her deceased husband she has property rights in his psychological and psychiatric records. This claim is rtot authoritatively supported, and we fail to see its validity. Assuming arguendo that her deceased husband did have property rights in his own psychological and psychiatric records, the authority to enforce these rights would have passed to the legal representative of his estate rather than to plaintiff.

Accordingly, we find that plaintiff did not have the necessary standing to maintain this cause of action. This renders moot her argument that she is entitled to a preliminary injunction. The trial court’s order dismissing plaintiff’s cause of action is

Affirmed.

Judges VAUGHN and BECTON concur.