TA30978.doc

NORTH CAROLINA INDUSTRIAL COMMISSION
I.C. NO. TA-30978, JARRED FORD, Plaintiff v. NORTH CAROLINA DEPARTMENT OF ADULT CORRECTION, Defendant.
ORDER for the Full Commission by WANDA BLANCHE TAYLOR, Commissioner.
Filed: December 3, 2024
This matter is before the Full Commission on Plaintiff's appeal of the June 24, 2024, Order filed by former Special Deputy Commissioner Tamika L. Jenkins.  On November 22, 2024, the Full Commission reviewed this matter administratively, without oral argument, pursuant to 11 NCAC 23B .0310 of the Tort Claims Rules of the North Carolina Industrial Commission.
A P P E A R A N C E S
Plaintiff:	Pro se.  OPUS #1653623.
Defendant:	North Carolina Department of Justice, Raleigh, North Carolina;
Jayla L. Cole, Assistant Attorney General, Counsel of Record.
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Having reviewed the prior Order, the record of the proceedings before former Special Deputy Commissioner Jenkins, Plaintiff's Form T-44 Application for Review, Defendant's brief and the contents of the Industrial Commission file, the Full Commission hereby enters the following Order pursuant to N.C. Gen. Stat. § 143-292:
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On April 13, 2023, Plaintiff initiated this civil action by filing a Form T-1 Affidavit against the Nash County Sheriff's Office and the North Carolina Department of Adult Correction ("Defendant").  The Affidavit alleges that on March 28, 2022, while Plaintiff was incarcerated at Central Prison in Raleigh, North Carolina, he suffered damages due to the negligence of Correctional Sergeant Brian Henderson and Nash County Sheriff Deputies Jonathan Sykes and Joey Privette.  Specifically, Plaintiff asserts that he was transported to the receiving area at Central Prison in preparation for a court appearance.  Upon arrival, Deputies Sykes and Privette allegedly informed him that he was being transferred to federal custody and instructed him to discard all of his property, as federal authorities would not allow him to keep it.  Plaintiff claims that he refused to comply with this directive, as the property included a bag of personal belongings and two bags containing legal materials related to his state and federal cases.  Plaintiff further alleges that he sought permission from Sergeant Henderson to mail the property to his home.  Sergeant Henderson allegedly left the area to consult with other staff members and later returned to inform Plaintiff that mailing the property was "not our responsibility."  Plaintiff contends that despite his initial intention to leave the property behind, Sergeant Henderson ultimately ordered him to dispose of the three bags in a trash bin.  Plaintiff asserts that his property was wrongfully discarded and seeks $20,000 in damages as a result.  
On August 16, 2023, Defendant filed Defendant's Motions to Dismiss, Answer, Affirmative Defense, and Motion Strike.  First, Defendant sought dismissal under North Carolina Rules of Civil Procedure 12(b)(1), (2), and (6), arguing that Plaintiff's claim was improperly based on the alleged negligence of Deputies Sykes and Privette, neither of whom were officers or employees of the State.  Defendant further argued that the action should be dismissed for lack of subject matter and personal jurisdiction, asserting that Plaintiff's Affidavit named the "Nash County Sheriff's Office" as a defendant, rather than a state agency.  Lastly, Defendant moved for dismissal under Rule 12(b)(6), asserting that Plaintiff failed to properly plead a claim for negligent infliction of emotional distress and that, even if Plaintiff's allegations were true, they were insufficient to establish negligence on the part of Defendant. 
On April 16, 2024, Defendant's Motions to Dismiss were heard via videoconference before former Special Deputy Commissioner Tamika Jenkins.  During the hearing, Plaintiff confirmed the allegations in his Affidavit, stating that on March 28, 2022, Sergeant Henderson directed him to discard his three bags of property in a trash bin.  Plaintiff further asserted that, under Defendant's policies and procedures, he should have been allowed to mail his property home instead of being forced to dispose of it.  By Order filed April 17, 2024, former Special Deputy Commissioner Jenkins held Defendant's Motions to Dismiss in abeyance and continued the hearing due to technical difficulties experienced by defense counsel.
On May 28, 2024, Plaintiff filed a Motion to Amend his Affidavit to remove the names of the two Deputies who transported him to court on March 28, 2022, remove the Nash County Sheriff's Office as a defendant, and reduce his requested damages from $20,000 to $5,000.  Special Deputy Commissioner Jenkins granted Plaintiff's Motion in an Order filed June 24, 2024.
At a subsequent hearing on June 18, 2024, before former Special Deputy Commissioner Jenkins, Plaintiff acknowledged that his property had been retrieved from the trash bin and returned to him on March 28, 2024.  Plaintiff also noted, however, that some of his property sustained "minor damage," including "a couple of papers [that] got wet."  
On June 24, 2024, former Special Deputy Commissioner Jenkins issued an Order dismissing Plaintiff's claim with prejudice, concluding that "Plaintiff has failed to sufficiently state a claim for negligence upon which relief may be granted."  Plaintiff subsequently filed a notice of appeal, and on August 9, 2024, submitted his Form T-44 Application for Review to the Full Commission.  Defendant filed its brief on September 9, 2024.   
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The Industrial Commission is constituted a court with limited jurisdiction under the Tort Claims Act to hear claims of negligence against "the State Board of Education, the Board of Transportation, and all other departments, institutions and agencies of the State."  N.C. Gen. Stat. § 143-291 (2023).  To prevail in a claim filed under the Tort Claims Act, a plaintiff must allege and prove "that there was negligence on the part of an officer, employee, involuntary servant or agent of the State while acting within the scope of his office, employment, service, agency or authority that was the proximate cause of the injury . . . ."  N.C. Gen. Stat. § 143-291(a) (2023).
A claim may be dismissed pursuant to Rule 12(b)(6) of the North Carolina Rules of Civil Procedure for failure to state a claim upon which relief can be granted.  N.C. Gen. Stat. § 1A-1, Rule 12(b)(6) (2023).  "A complaint should not be dismissed for insufficiency unless it appears to a certainty that plaintiff is entitled to no relief under any state of facts which would be proved in support of the claim."  Newton v. Standard Fire Ins. Co., 291 N.C. 105, 111, 229 S.E.2d 297, 300 (1976) (citations and internal quotation marks omitted).  A claim may be dismissed under Rule 12(b)(6) when one of three conditions is satisfied: "(1) the complaint on its face reveals that no law supports the plaintiff's claim; (2) the complaint on its face reveals the absence of facts sufficient to make a good claim; or (3) the complaint discloses some fact that necessarily defeats the plaintiff's claim."  Wood v. Guilford Cty., 355 N.C. 161, 166, 558 S.E.2d 490, 494 (2002) (citation omitted).
In this case, treating Plaintiff's allegations as true, Plaintiff has sufficiently stated a potential claim for negligence.  Plaintiff alleges that Sergeant Henderson, a named employee of Defendant, owed Plaintiff a duty to handle his property in accordance with Defendant's established policies and procedures.  Plaintiff further asserts that this duty was breached when Sergeant Henderson improperly ordered the property to be discarded in the trash bin, in violation of those policies.  Finally, Plaintiff asserts that his damages were a proximate result of Defendant's negligence.  These allegations are sufficient to state a claim for which relief may be granted.  See Gibson v. Ussery, 196 N.C. App. 140, 143, 675 S.E.2d 666, 668 (2009).
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Accordingly, it is hereby ORDERED that Defendant's Motion to Dismiss pursuant to Rule 12(b)(6) is DENIED, former Special Deputy Commissioner Jenkins' June 24, 2024, Order is VACATED, and this matter is hereby REMANDED to the Deputy Commissioner section for further proceedings.  No costs are taxed at this time.

						s/Taylor, C.
						s/Baddour, Ch., concurring.
						s/Goodman, C., concurring.

 Although Plaintiff originally named the North Carolina Department of Public Safety as a defendant in his Affidavit, the state's correctional system was transferred, effective January 1, 2023, from the Department of Public Safety to the newly established North Carolina Department of Adult Correction.  Accordingly, the Full Commission will treat the claim as one against the Department of Adult Correction.

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