An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NORTH CAROLINA COURT OF APPEALS
Filed: 19 July 2005
TERRY ARNELL MORTON,
v. Industrial Commission
NORTH CAROLINA DEPARTMENT
Appeal by plaintiff from decision and order filed 10 May 2004
by the North Carolina Industrial Commission. Heard in the Court of
Appeals 13 June 2005.
Terry Arnell Morton, pro se, for plaintiff-appellant.
Attorney General Roy Cooper, by Associate Attorney General
Iain Stauffer, for defendant-appellee.
Terry Arnell Morton (plaintiff) appeals his decision and order
filed 10 May 2004, denying his tort claim for negligence.
Plaintiff, an inmate of defendant North Carolina Department of
Correction, housed at Marion Correctional Institution at the time
of the incident, instituted this tort claim by the filing of an
affidavit alleging he was wrongfully assaulted by a correctional
officer on 22 July 2001, when the officer sprayed him with pepper
spray. After conducting an evidentiary hearing on 21 May 2003,
Deputy Commissioner Edward Garner, Jr. issued a decision and order
denying the claim.
The Deputy Commissioner found that on the date in question,plaintiff was confined to his cell after being involved in a fight
with another inmate. Correctional Sergeant Wesley Corn appeared
and requested plaintiff to submit to handcuffs. Officer Samuel
Dotson, unit manager, also came to plaintiff's cell and asked
plaintiff to submit to handcuffs. Plaintiff moved his hands out of
the sight of the officers. Because they feared for their safety,
plaintiff was sprayed with pepper spray.
The Deputy Commissioner found that the action of spraying
plaintiff was reasonable under the circumstances. He concluded
plaintiff presented no credible or competent evidence to prove the
named employees were negligent. Plaintiff appealed to the Full
Commission, who denied the claim by decision and order filed 10 May
The issues on appeal are whether: (I) the Commission properly
found and concluded plaintiff did not present sufficient evidence
to show defendant's employees were negligent; (II) the Deputy
Commissioner erred in denying plaintiff's motion for a continuance;
(III) plaintiff was given adequate notice of the hearing; and (IV)
one of the officers committed perjury.
Plaintiff first challenges the Commission's finding and
conclusion that he did not present sufficient evidence to show
defendant's employees were negligent. Our review of a decision of
the Industrial Commission is limited to two questions: (1)
whether competent evidence exists to support the Commission'sfindings of fact, and (2) whether the Commission's findings of fact
justify its conclusions of law and decision. Simmons v. N.C.
Dep't of Transp., 128 N.C. App. 402, 405-06, 496 S.E.2d 790, 793
(1998) (citation omitted). The Commission's findings of fact are
conclusive on appeal if supported by any competent evidence,
whether or not the evidence would support contrary findings.
Price v. N.C. Dep't of Corr., 103 N.C. App. 609, 613, 406 S.E.2d
906, 908 (1991) (citation omitted).
To recover under the Tort Claims Act, a plaintiff must show
that injuries sustained were the proximate cause of a negligent act
by a named employee of the State acting in the course and scope of
his employment. N.C. Gen. Stat. § 143-291 (2003). The action is
guided by the same principles of negligence that are applicable to
actions against a private citizen. Bolkhir v. N.C. State Univ.,
321 N.C. 706, 709, 365 S.E.2d 898, 900 (1988). To establish an
actionable claim for negligence, a plaintiff must show: (1) a
defendant failed to exercise due care in the performance of a duty
owed to the plaintiff, and (2) that the negligent breach of duty
proximately caused injury to the plaintiff. Id.
Evidence at the hearing showed the standard operating
procedure manual utilized by Marion Correctional Institution
provides pepper spray should be used as the first level of
response . . . [t]o control or deter violent, threatening or
aggressive acting inmates. Ten minutes before the incident in
question, plaintiff had been involved in a fight with another
inmate, who was injured in the fight. The officers repeatedlyrequested plaintiff to submit to handcuffs. Instead of complying,
plaintiff turned his back to the officers and dropped his hands,
leading the officers to believe that plaintiff might have a weapon
in his hand. Under these circumstances the employees acted
reasonably in accordance with standard operating procedure by
spraying plaintiff with pepper spray. This evidence supports a
finding and conclusion that they did not breach a duty of care owed
to plaintiff. This assignment of error is overruled.
Plaintiff next contends the Deputy Commissioner erred by not
allowing a continuance so plaintiff could obtain a witness and
obtain discovery from defendant.
The record fails to show plaintiff requested a continuance.
Even if plaintiff had made the motion, the Commission's decision
upon a motion to continue is within the discretion of the
Commission and will not be disturbed in the absence of a showing of
abuse of discretion. McPhaul v. Sewell, 36 N.C. App. 312, 314, 244
S.E.2d 158, 160 (1978). No abuse of discretion is shown.
Plaintiff does not show what testimony his witness would have given
or how he was prejudiced. This assignment of error is overruled.
Plaintiff next contends he was not given adequate notice of
the hearing. In order to preserve a question for appellate
review, a party must have presented to the [tribunal] a timely
request, objection or motion, stating the specific grounds for the
ruling the party desired the court to make[.] N.C. R. App. P.10(b)(1). The record does not show plaintiff objected in a timely
fashion to any purported lack of notice. Accordingly, this issue
has not been properly preserved for appellate review.
Plaintiff next contends one of the officers committed perjury.
The credibility of witnesses is for the Commission to decide.
McGee v. N.C. Dep't of Revenue
, 135 N.C. App. 319, 324, 520 S.E.2d
84, 87 (1999) (citing Adams v. AVX Corp.
, 349 N.C. 676, 681, 509
S.E.2d 411, 413 (1998)). The Commission adjudged the testimony of
this witness to be credible and this Court is bound by that
at 324, 520 S.E.2d at 87.
The decision and order is affirmed.
Judges ELMORE and GEER concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***