Pulley v. N.C. Department of Correction

*********** The undersigned have reviewed the prior Decision and Order based upon the record of the proceedings before former Deputy Commissioner Berger. The appealing party has not shown good grounds to reconsider the evidence; receive further evidence; rehear the parties or their representatives; or amend the Decision and Order. *********** The competent evidence of record engenders the following: FINDINGS OF FACT 1. A hearing on defendant's Motion To Dismiss was held before the deputy commissioner on October 14, 2004.

2. Plaintiff alleges in his Tort Claim affidavit filed with the North Carolina Industrial Commission that the Utilization Review Board twice denied a medical procedure.

3. Defendant moved to dismiss plaintiff's claim asserting lack of subject matter jurisdiction on the basis that plaintiff alleged intentional acts, not negligent acts.

*********** The foregoing Findings of Fact engender the following: CONCLUSIONS OF LAW 1. Under the provisions of the Tort Claims Act, negligence is determined by the same rules applicable to private parties. Bolkir v.N.C. State University, 321 N.C. 706, 709, 365 S.E.2d 898, 900 (1988).

2. N.C. Gen. Stat. § 143-291(a) confers the Industrial Commission with jurisdiction to hear tort claims against the State Board of Education, the Board of Transportation and all other departments, institutions and agencies of the State.

3. Plaintiff's Affidavit and argument at the hearing before the deputy commissioner shows intentional acts on the part of defendant. Intentional acts are not within the scope of the Tort Claims Act. See N.C. Gen. Stat. § 143-291; Frazier v. Murray, 135 N.C. App. 43, 519 S.E.2d 525 (1999), appeal dismissed, 351 N.C. 354, 542 S.E.2d 209 (2000) (State Tort Claims Act does not bestow jurisdiction to the Industrial Commission to hear civil actions alleging intentional acts.)

*********** The foregoing Findings of Fact and Conclusions of Law engender the following: ORDER 1. Plaintiff's claim under the State Tort Claims Act must be and is hereby DISMISSED WITH PREJUDICE.

2. Plaintiff's motion for recusal is DENIED.

3. No costs are taxed as plaintiff was permitted to file this civil action in forma pauperis.

This the 9^th day of August 2005.

S/_______________ DIANNE C. SELLERS COMMISSIONER

CONCURRING:

S/_____________ THOMAS J. BOLCH COMMISSIONER

S/_______________ CHRISTOPHER SCOTT COMMISSIONER