DocketNumber: I.C. NO. TA-21169.
Judges: <center> DECISION AND ORDER for the Full Commission by DANNY LEE McDONALD, Commissioner, N.C. Industrial Commission.</center>
Filed Date: 9/16/2010
Status: Precedential
Modified Date: 7/6/2016
2. Plaintiff also made a written motion to amend his complaint prior to the hearing before Deputy Commissioner Rowell on September 23, 2009. On the record, Plaintiff's motion dated on or about July 14, 2009, was granted by the Deputy Commissioner, and Plaintiff's Affidavit was amended as requested therein.
3. Defendant orally moved to dismiss the action on the grounds that, inter alia, Plaintiff has effectively challenged a policy determination left to the sole discretion of the Department of Correction in its executive authority over the prison system, as conferred upon the department and its officials by the General Assembly.
4. The Full Commission finds that Plaintiff has, in fact, alleged actions which were deliberate and discretionary on the part of Defendant's officials.
2. A Defendant's motion to dismiss tests the legal sufficiency of a Plaintiff's complaint, such that the Commission must determine whether, considering all of the facts *Page 3
alleged by Plaintiff in the light most favorable to him, Plaintiff has successfully stated a cause of action for negligence under the Tort Claims Act. Branch Banking Trust Co. v. Wilson County Bd.of Educ.,
3. Policy determinations involving the lawful exercise of judgment and discretion conferred by the General Assembly upon officials of the North Carolina Department of Correction are generally not subject to judicial oversight except as they implicate the constitutional rights of a person in the department's custody.See Goble v. Bounds,
4. The Tort Claims Act does not confer upon the Industrial Commission subject matter jurisdiction over causes of action based upon intentionally tortious conduct, as the State's sovereign immunity has not been waived with respect to such actions.Jenkins v. N.C. Dep't of Motor Vehicles,
2. Plaintiff's tort claim is hereby DISMISSED WITH PREJUDICE.
3. No costs are taxed to Plaintiff, who was permitted to proceedin forma pauperis.
This the 7th day of September, 2010.
S/__________ DANNY LEE McDONALD COMMISSIONER
CONCURRING:
S/__________ STACI T. MEYER COMMISSIONER
S/__________ BERNADINE S. BALLANCE COMMISSIONER
Goble v. Bounds , 281 N.C. 307 ( 1972 )
Bolkhir v. North Carolina State University , 321 N.C. 706 ( 1988 )
Branch Banking & Trust Co. v. WILSON COUNTY BD. OF ED. , 251 N.C. 603 ( 1960 )
Jenkins v. North Carolina Department of Motor Vehicles , 244 N.C. 560 ( 1956 )
Collins v. North Carolina Parole Commission , 344 N.C. 179 ( 1996 )