TA28186.doc

NORTH CAROLINA INDUSTRIAL COMMISSION
I.C. NO. TA-28186, TREVIS BUTTON, Plaintiff v. NORTH CAROLINA DEPARTMENT OF ADULT CORRECTION f/k/a NORTH CAROLINA DEPARTMENT OF PUBLIC SAFETY, Defendant.

DECISION AND ORDER for the Full Commission by WANDA BLANCHE TAYLOR, Commissioner. 

Filed: October 30, 2024

This matter is before the Full Commission upon Plaintiff's appeal from the Decision and Order filed by Deputy Commissioner Thomas H. Perlungher on April 17, 2024, denying Plaintiff's claim.  The Full Commission reviewed this matter administratively without oral argument on September 20, 2024, pursuant to Rule 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.  

Defendant:	North Carolina Department of Justice, Raleigh, North Carolina; 
	Lexus Sanders-Njie, Assistant Attorney General, Counsel of Record.

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Having reviewed the prior Decision and Order based upon the record of the proceedings before Deputy Commissioner Perlungher, Plaintiff's Form T-44 Application for Review, and Defendant's brief, the Full Commission hereby enters the following Decision and Order pursuant to N.C. Gen. Stat. § 143-292:
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EXHIBITS

	The following documents were accepted into evidence by the Deputy Commissioner as Plaintiff's Exhibits:
Plaintiff's Exhibit #1 - Defendant's Response to Plaintiff's Request for Admissions; 

Plaintiff's Exhibit #2 - Declaration of Kyle Sramek;

Plaintiff's Exhibit #3 - Shift Narrative for June 24, 2019, and June 25, 2019 (received in camera); and

Plaintiff's Exhibit #4 - State of North Carolina, Department of Public Safety, Prisons, Policy and Procedure, Chapter O, Sections .0300 (Conditions of Confinement) and .0400 (Restrictive Housing for Control Purpose), and Incident Report No. 3100-19-555 with attachments.

The following documents were accepted into evidence by the Deputy Commissioner as Defendant's Exhibits:
Defendant's Exhibit #1 - Administrative Remedy Procedure documents. 

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The Full Commission addresses the following:
ISSUES
Did Defendant breach a duty of care owed to Plaintiff that proximately resulted in injury to Plaintiff?

If so, what damages is Plaintiff entitled to recover?
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Based upon the preponderance of the evidence in view of the entire record, and reasonable inferences flowing therefrom, the Full Commission makes the following: 
FINDINGS OF FACT 
All parties are properly before the North Carolina Industrial Commission, and the Industrial Commission has jurisdiction of the parties and of the subject matter of this case.  All parties are bound by, and subject to, the North Carolina Tort Claims Act.  All parties have been correctly designated, and there is no question as to the misjoinder or nonjoinder of any party. 
On July 13, 2019, Plaintiff filed a grievance with Defendant.  Plaintiff's "Grievance Statement" stated that on June 24, 2019, Plaintiff showed Officer Markiecki a piece of metal during morning rounds and told him that he was going to swallow it and that he felt suicidal, but Officer Markiecki walked away.  Shortly thereafter, Officer Totten, Sergeant Moore, and a nurse "came to his cell for medication distribution" and Plaintiff showed them the piece of metal and swallowed it.  Plaintiff stated that the nurse laughed and walked away, while Officer Totten and Sergeant Moore cuffed him, searched his cell, and then uncuffed him and left him in his cell.  Plaintiff claimed that he continued to try to get assistance for over an hour before he flooded his cell which resulted in Sergeant Moore and Sergeant Brooks coming and placing him in full restraints and putting him in a holding cell.  Plaintiff alleged he was refused lunch and dinner and did not return to his cell until 4-4:30 p.m. that day and was not taken to medical until 3-4 p.m. on June 25, 2019. 
On December 10, 2019, Plaintiff filed a Form T-1 Claim for Damages Under Tort Claims Act Affidavit (hereinafter "Affidavit").  Plaintiff's Affidavit alleges that, on June 24, 2019, while housed at Central Prison ("CP"), he told Officer Markiecki that he was suicidal and threatened to swallow a piece of metal, but Officer Markiecki walked off, and later Officer Totten, Nurse Jones, and Sergeant Moore were at his cell door when he swallowed the piece of metal.  Plaintiff further alleges that he "made several failed attempts to get medical attention," but was not seen by medical until the next day.  Plaintiff claims $2,500.00 in damages.  Plaintiff's Petition to Sue as an Indigent Person was approved by the Industrial Commission on December 17, 2019.
On January 13, 2020, Defendant filed Defendant's Motions to Dismiss, Answer, Affirmative Defense, and Motion for Protective Order.  In its Answer, Defendant admits that "Plaintiff was incarcerated at Central Prison on the date listed . . . ."  Defendant otherwise denied Plaintiff's substantive allegations.
At the evidentiary hearing before Deputy Commissioner Perlungher, Plaintiff appeared and testified on the record.  Plaintiff testified that on the date of the incident in question, during the morning rounds, Officer Markiecki and a nurse came to his cell at which point he showed them a piece of metal, told them that he was suicidal, and swallowed the piece of metal.  Plaintiff testified that Officer Markiecki and the nurse ignored him and left, but shortly thereafter, Sergeant Brooks and Officer Totten arrived at Plaintiff's cell, searched his cell, and found it to be flooded (which Plaintiff admitted to having done).  Plaintiff further testified that he was put in full restraints while clothed in a t-shirt and boxers and taken to a holding cell where he remained without lunch or dinner from "8:00 something in the morning to approximately 4:30-4:45 in the afternoon."  During that time, Plaintiff claimed he urinated on himself because he was restrained and unable to use the bathroom.  Plaintiff alleged he returned to his cell after it was cleaned but was not taken to medical until the next day where x-rays were completed and confirmed that he had swallowed a piece of metal.   
Plaintiff testified that he did not have any medical records to support his claim because he took them home when he was released from custody, but had been reincarcerated and his records were left at his home.  
Venicia Outlaw, currently Correctional Housing Unit Manager III for Defendant-Employer, but Assistant Unit Manager in June 2019, testified that when she responded to Plaintiff's grievance, she interviewed the staff to prepare the response.  Ms. Outlaw recalled an incident on June 24, 2019, where Plaintiff flooded his cell resulting in him being removed and the officers searching his cell and finding a "Styrofoam cup or something" in the toilet.  [T 5-7, 9].  Ms. Outlaw testified that she was not aware that Plaintiff was placed in a holding cell, that he told staff that he was suicidal, or that he swallowed a piece of metal in front of the staff.  She also testified that Plaintiff never reported to her that he was feeling suicidal. 
The Central Prison Shift Narrative from June 24, 2019, contains a description of the June 24, 2019, incident stating that at 
8:45am, Ofc. Alves observed water coming from under the cell door of [the cell] which housed [Plaintiff].  [Plaintiff] was attempting to flush a milk carton.  He was given several directives to stop which he refused.  Sgt. Brooks ordered the water to be turned off until he was rehoused and the cell cleaned up.  Hands on force[] was used to remove him from the cell.  He was medically screened, photos taken[,] and a video requested . . . .

The witness statements of Sergeant Faith Brooks, Sergeant James Moore, Officer Daniel Brooks, and Officer Frank Alves provide similar details as the description on the Central Prison Shift Narrative.  Plaintiff refused to make and sign a witness statement which was documented on June 24, 2019, at 3:40 pm.  
Based upon the preponderance of the evidence in view of the entire record, the Full Commission finds that Plaintiff failed to establish that Defendant through its employees or agents failed to exercise reasonable care owed to Plaintiff on June 24, 2019.  Specifically, Plaintiff has produced insufficient evidence that Defendant knew or should have known that Plaintiff was exhibiting self-injurious behavior or that he was fully restrained for a prolonged period of time after being removed from his cell.  In reaching this finding, the Full Commission notes that although Plaintiff alleges that he notified Defendants' employees that he was suicidal, was going to swallow a piece of metal, swallowed a piece of metal in front of Defendant's employees, and was fully restrained for eight hours, the exhibits fail to corroborate these contentions.  The witness statements indicate that Plaintiff was placed in wrist restraints and placed in a holding cell while his flooded cell was cleaned.  Furthermore, the witness statements and Central Prison Shift Narrative are void of any mention of a metal object being swallowed by Plaintiff.  Moreover, the Full Commission does not find Plaintiff's testimony regarding the June 24, 2019, events credible as it is inconsistent with his written grievance and Affidavit. 
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Based upon the foregoing Findings of Fact, the Full Commission makes the following:
CONCLUSIONS OF LAW
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 pursuant to 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 . . . ."  Id.; Thornton v. F.J. Cherry Hosp., 183 N.C. App. 177, 182, 644 S.E.2d 369, 373 (2007) (citation and internal quotation marks omitted) ("[u]nder the Tort Claims Act, the burden of proof to show negligence is on the plaintiff").
   Under the provisions of the Tort Claims Act, negligence is determined by the same rules applicable to private parties.  Bolkhir v. N.C. State Univ., 321 N.C. 706, 709, 365 S.E.2d 898, 900 (1988).
To establish a prima facie case of actionable negligence, a plaintiff must allege facts showing: (1) the defendant owed the plaintiff a duty of reasonable care, (2) the defendant breached that duty, (3) the defendant's breach was an actual and proximate cause of the plaintiff's injury, and (4) the plaintiff suffered damages as the result of the defendant's breach. 

Gibson v. Ussery, 196 N.C. App. 140, 143, 675 S.E.2d 666, 668 (2009) (citation omitted).  Plaintiff has the burden of proof on all these elements and must prove his case by a preponderance of the evidence.  Lowe v. Dep't of Motor Vehicles, 244 N.C. 353, 357, 93 S.E.2d 448, 451 (1956).  The terms of the Tort Claims Act must be strictly construed.  Northwestern Distrib., Inc. v. N.C. Dep't of Transp., 41 N.C. App. 548, 550, 255 S.E.2d 203, 205 (1979).
Defendant has a duty of reasonable care to protect plaintiff from reasonably foreseeable harm.  Taylor v. N.C. Dep't of Corr., 88 N.C. App. 446, 451, 363 S.E.2d 868, 871 (1988).  The general rule is that a prison official is liable when he knows of, or in the exercise of reasonable care should anticipate, danger to an inmate, and with such knowledge or anticipation fails to take the proper precautions to safeguard the inmate.  Id. (citations omitted).  
In the present matter, the Full Commission concludes that Plaintiff has not shown that Defendant breached its duty of reasonable care to protect Plaintiff from reasonably foreseeable harm.  Accordingly, Plaintiff has not satisfied the essential elements of a negligence action, and his claim must be denied.  Id.; Gibson, 196 N.C. App. at 143, 675 S.E.2d at 668; Thornton, 183 N.C. App. at 182, 644 S.E.2d at 373.
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	Based upon the foregoing Findings of Fact and Conclusions of Law, the Full Commission enters the following:
O R D E R
Plaintiff's claim under the Tort Claims Act is hereby DENIED.
No costs are taxed against Plaintiff, as he was permitted to file this civil action in forma pauperis.

Vice-Chair GRIFFIN and Commissioner PHILLIPS concur.

 The North Carolina Department of Justice informed the Industrial Commission that Lexus Sanders-Njie is no longer counsel of record for Defendant and requested that a copy of Orders in which Ms. Sanders-Njie was counsel of record be served on Assistant Attorney General Jayla Cole.
 The Deputy Commissioner only allowed the statement in to corroborate Plaintiff's testimony.
 It is noted that Plaintiff's written description of the events on June 24, 2019, on the Form T-1 in Section 6 mentions Nurse Jones, but in Section 4, Plaintiff when listing the names of the employees marked out Jones and wrote Lewis. 

I.C. NO. TA-28186	Page 30