Appeal by plaintiff from an order dated 27 February 2006 by
Judge Donald W. Stephens in Wake County Superior Court. Heard in
the Court of Appeals 21 August 2007.
Larry Eugene Smith, Jr., pro se plaintiff-appellant.
Attorney General Roy Cooper, by Assistant Attorney General J.
Philip Allen, for defendant-appellees.
Larry Eugene Smith (plaintiff) appeals from an order dated 27
February 2006 dismissing plaintiff's complaint with prejudice. For
the reasons stated herein, we affirm the order of the trial court.
Facts and Procedural History
On 5 August 2004 at Central Prison, plaintiff, an inmate,
attempted to hang himself with a bed sheet tied to his cell locker. The prison staff intervened and immediately admitted plaintiff to
the prison's mental health hospital, from which he had been
released earlier the same day. Plaintiff was then administratively
charged with two disciplinary infractions: attempting to inflict
self-injury (by tying a bed sheet around his neck and attaching it
to his locker), and disobeying an officer's order (to remove the
bed sheet). Sergeant Isaac L. Brown, the Investigating Officer,
interrogated plaintiff on 9 August 2004. Plaintiff gave a written
statement at that time requesting statements from his treating
physicians be gathered by Sergeant Brown on plaintiff's behalf.
Sergeant Brown did not gather any statements from said physicians
because he deemed the statements to be irrelevant.
On 25 August 2004, plaintiff formally entered a plea of not
guilty to the disciplinary infractions, and the infractions were
heard on 2 September 2004 at a hearing before the Disciplinary
Hearing Officer. Plaintiff was found guilty of committing both
infractions and was given active punishments, including loss of
visitation, disciplinary segregation, sixty hours of extra duty,
and forty days forfeiture of previously earned good time credits.
On 20 December 2005, plaintiff filed the instant civil action,
seeking a declaration that the disciplinary convictions violated
his constitutional rights, an injunction restoring the forty days
of good time, and compensatory and punitive damages. On 16
February 2006, plaintiff filed a motion seeking the appointment of
counsel in his civil action. Defendants moved to dismiss
plaintiff's complaint on 17 February 2006 and opposed theappointment of counsel. Plaintiff subsequently filed two motions,
the first on 28 February 2006 and the second on 1 March 2006, with
the trial court seeking an extension of time in which to respond to
defendants' motion to dismiss. In an order dated 27 February 2006,
the trial court granted defendants' motion to dismiss with
prejudice, finding plaintiff had failed to allege any basis in law
or fact to support the relief sought. Plaintiff appeals.
Plaintiff raises the issues of whether the trial court erred
by: (I) dismissing his claim of cruel and unusual punishment; (II)
dismissing his declaratory judgment action; (III) holding plaintiff
failed to allege any basis in law or fact to support his relief
sought; (IV) failing to allow plaintiff sufficient time to respond
to defendants' motion to dismiss; and (V) failing to rule on
plaintiff's motion for appointment of counsel and motion to extend
time in which to file his response to defendants' motion to
dismiss, prior to dismissing his claims.
I, II, and III
In his complaint, plaintiff sought: a declaratory judgment
stating his due process rights under the Constitutions of the
United States and North Carolina were violated by defendants'
actions during the investigation and hearing of the disciplinary
infractions; an injunction restoring plaintiff's earned good time
credits and expunging the disciplinary infraction convictions from
his prison record; and monetary damages for defendants' violations
of his constitutional rights and the policies of the North CarolinaDepartment of Correction (DOC) during the investigation and hearing
of the disciplinary infractions. Plaintiff argues the trial court
erred in (I) dismissing his claim of cruel and unusual punishment;
(II) dismissing his declaratory judgment action; and (III) holding
plaintiff failed to allege any basis in law or fact to support his
relief sought. We disagree.
This Court has held that,
[t]he purpose of a Rule 12(b)(6) motion is to
test the legal sufficiency of the complaint.
In deciding such a motion the trial court is
to treat the allegations of the complaint as
true. A claim should be dismissed under this
rule if no law exists to support the claim
made, if sufficient facts to make out a good
claim are absent, or if facts are disclosed
which will necessarily defeat the claim. A
motion to dismiss in a declaratory judgment
action is allowed only when the record clearly
shows that there is no basis for declaratory
relief, as when the complaint does not allege
an actual, genuine existing controversy.
Claggett v. Wake Forest Univ.
, 126 N.C. App. 602, 607-08, 486
S.E.2d 443, 446 (1997) (internal citations and quotations omitted).
Plaintiff argues defendants violated his rights to due process
under the United States and North Carolina Constitutions and
violated DOC policy when Sergeant Brown failed to: (1) gather
evidence on plaintiff's behalf; (2) notify the mental health
facilities of the disciplinary infractions; and (3) appoint a staff
member to assist plaintiff at his hearing on the disciplinary
infractions. Under the policies of the DOC, an inmate has a right
to request that written witness statements or evidence be gathered
or the evidence or witnesses be present at any disciplinary
hearing. An inmate also has the right to request the appointmentof a staff member to provide assistance at the hearing. These
rights may be waived by an inmate in writing, by not following
proper procedure, or by overt refusal to follow established
We first note that there is no indication in the record that
plaintiff requested assistance of a staff member at his hearing on
the disciplinary infractions. Notably, in his internal appeal of
the disciplinary action, plaintiff did not raise the denial of the
appointment a staff member at his disciplinary hearing as an issue.
Plaintiff has waived this issue, and we dismiss this assignment of
Plaintiff did request written statements from the medical and
mental health staff who treated him after the hanging incident
upon which the disciplinary infractions were based. However,
according to Sergeant Brown, no statements were obtained from these
staff members due to their not being involved in the incident[;]
their statements would not be relevant. We agree that any
evidence offered by the medical or mental health staff would not
have been relevant to whether plaintiff committed the disciplinary
infractions of attempting to inflict self-injury and disobeying an
officer's order. While an inmate facing disciplinary proceedings
has a right to call witnesses and present evidence in his defense,
this right is not unqualified, but is tempered by the needs of the
correctional institute and subject to the discretion of prison
officials. Wolff v. McDonnell
, 418 U.S. 539, 566-67, 41 L. Ed. 2d
935, 956-57 (1974). Defendants' refusal to obtain statements fromthe medical or mental health staff, and lack of notification to the
mental health facilities of the disciplinary infractions against
plaintiff did not violate DOC's policies or plaintiff's rights to
due process under the United States and North Carolina
Constitutions. These assignments of error are overruled.
Turning to plaintiff's claims regarding the violation of his
right to be free from cruel or unusual punishment, it is well
established that a sentence within statutory limitation is not
cruel or unusual punishment in the constitutional sense. State v.
, 284 N.C. 165, 172, 200 S.E.2d 186, 192 (1973) (citations
omitted). While defendant lost forty days of earned good time
credit, he is still subject to the limitations of his original
sentence, and the loss of the earned good time credit cannot be
considered cruel or unusual punishment proscribed by the United
States Constitution or the North Carolina Constitution. Thus, the
trial court did not err in dismissing plaintiffs claims alleging
cruel and unusual punishment. This assignment of error is
The record clearly shows that there is no basis for
declaratory relief as to plaintiff's claims for violations of his
due process rights or violation of his right to be free from cruel
or unusual punishment. Therefore, the trial court did not err in
dismissing plaintiff's complaint. Claggett
, 126 N.C. App. at
607-08, 486 S.E.2d at 446. This assignment of error is overruled.
Plaintiff next argues the trial court erred because it failed,
as a matter of law, to allow plaintiff sufficient time to respond
to defendants' motion to dismiss. We disagree.
Rule 6 of the North Carolina Rules of Civil Procedure requires
that written motions be served not later than five days before the
time specified for the hearing . . . . N.C. Gen. Stat. § 1A-1,
Rule 6(d) (2005). Defendants served their motion to dismiss by
mail on 17 February 2006. In this case there was no hearing, no
time specified for a hearing, and plaintiff does not raise the
issue of the lack of a hearing in his arguments to this Court.
Even assuming the trial court was required to wait for the
expiration of the period specified in Rule 6(d) before ruling on
defendants' motion to dismiss, the trial court's ruling was not
premature. Because defendants served their motion by mail on 17
February 2006, the prescribed five-day period was extended by Rules
6(a) and 6(e) to the following Monday, 27 February 2006. N.C. Gen.
Stat. § 1A-1, Rules 6(a),(e) (2005). The trial court's order
dismissing plaintiff's complaint was dated 27 February 2006, thus,
the trial court allowed plaintiff the time required to respond to
defendants' motion to dismiss under the North Carolina Rules of
Civil Procedure. This assignment of error is overruled.
Plaintiff lastly argues the trial court erred in failing to
rule on plaintiff's motion for appointment of counsel and motion to
extend time in which to file a response to defendants' motion to
dismiss prior to dismissing plaintiff's claims. We disagree. An indigent person has a statutory right to the services of
counsel only in specific situations. See
N.C. Gen. Stat. §
7A-451(a) (2005). The instant lawsuit does not present a situation
listed among those in N.C.G.S. § 7A-451(a), and thus plaintiff has
no statutory right to assistance of counsel in this civil case.
Further, as plaintiff's complaint does not allege any basis in law
or fact to support the relief sought, we cannot say the trial court
erred in failing to rule on plaintiff's motion for appointment of
counsel before it dismissed plaintiff's complaint. Similarly,
plaintiff cannot show the trial court abused its discretion in
failing to rule on plaintiff's motion for extension of time. See
In re Estate of Lowe
, 156 N.C. App. 616, 618, 577 S.E.2d 315, 316
(2003) (holding [o]ur standard to review whether the trial court
erred in granting a motion for extension of time is abuse of
discretion). This assignment of error is overruled.
Judges WYNN and HUNTER concur.
Report per Rule 30(e).
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