Autry v. N.C. Dept. of Correction

The undersigned have reviewed the prior Decision and Order based upon the record of the proceedings before Deputy Commissioner Ford. The appealing party has not shown good ground to reconsider the evidence, receive further evidence, rehear the parties or their representatives, or amend the Decision and Order.

*********** The Full Commission finds as fact the following: FINDINGS OF FACT 1. Plaintiff is an inmate who filed a tort claim in this mater claiming violation of Department of Correction rules and regulations and a "cover-up" by the named employees of the Department of Correction.

2. Plaintiff presented no evidence of any negligent acts as alleged in his complaint. While the plaintiff claims "negligence" in his affidavit, the evidence presented by plaintiff does not support any negligent acts, but instead supports intentional acts.

3. Defendant filed a motion to dismiss based on the grounds that no negligent acts are alleged.

4. At the hearing before the Deputy Commissioner, plaintiff moved to continue his case.

*********** Based on the foregoing findings of fact, the Full Commission concludes as follows: CONCLUSIONS OF LAW 1. Plaintiff has failed to state a claim upon which relief may be granted. Defendant is entitled to a dismissal on the grounds that there are no allegations or evidence of negligent acts and allegations of intentional acts and violations of statutes are not within the subject matter jurisdiction of the Industrial Commission. Jenkins v. NorthCarolina Department of Motor Vehicles, 244 N.C. 560, 94 S.E.2d 577 (1956).

2. Furthermore, plaintiff has failed to name any negligent employee or agent of defendant. To recover under the Tort Claims Act, a plaintiff must identify the specific employees alleged to have been negligent and set forth the specific act or acts of negligence relied upon. Ayscoe v.North Carolina State Highway Commission, 270 N.C. 100, 153 S.E.2d 823 (1967).

3. Plaintiff's motion to continue was properly denied by the Deputy Commissioner. Plaintiff is not entitled to relief from the denial of the continuance and further delay would not benefit plaintiff's claim.

*********** Based on the foregoing findings of fact and conclusions of law, the Full Commission adopts and affirms the holding of the Deputy Commissioner and enters the following: ORDER 1. Under the law, plaintiff's claims must be, and the same are hereby, DISMISSED WITH PREJUDICE.

2. Each party shall bear its own costs.

This the ___ day of December 2001.

S/_______________ DIANNE C. SELLERS COMMISSIONER

CONCURRING:

S/____________ BUCK LATTIMORE CHAIRMAN

S/______________ RENE C. RIGGSBEE COMMISSIONER