Montgomery v. N.C. Department of Correction

***********The undersigned have reviewed the prior Decision and Order based upon the record of the proceedings before Deputy Commissioner Stanback. 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.

***********Based upon the competent evidence of record, the Full Commission makes the following:

FINDINGS OF FACT1. At the time of the hearing before the deputy commissioner, plaintiff was 36 years of age, incarcerated by the State of North Carolina and was serving a life sentence for first degree murder.

2. On or about May 1, 2002, the plaintiff arrived at the Pasquotank correctional facility. Plaintiff had two bags of belongings which were searched. Semi-nude photographs of women were confiscated from plaintiff's belongings.

3. Plaintiff questioned Sergeant Wiggins about the confiscated photographs; plaintiff learned that he would not be able to keep the photos. Plaintiff provided an address to Correctional Officer Manning, for the photos to be sent to his niece, Nicole Montgomery, in Charlotte, North Carolina. Twenty-two photographs were inventoried and sent to the mailroom to be mailed. Plaintiff claims that his niece never received the photos, and that his property was lost due to the negligence of Sergeant Wiggins, Officer Manning, Officer James Harris, and Mrs. S. Harris.

4. Plaintiff produced a receipt for $25, purportedly for the purchase of the photos in question, however, no evidence was presented as to the depreciated value of the photos.

5. Plaintiff has failed, by the greater weight of the evidence, to prove that any of the named employees of the defendant were negligent in allegedly losing his property or that they were negligent in any other manner. Plaintiff has shown no duty of care, nor any breach thereof.

***********CONCLUSION OF LAWPlaintiff has failed to prove by the greater weight of the competent, credible evidence that an agent, officer, employee or involuntary servant of the Department of Correction committed a negligent act while acting within the scope of his office, employment, service agency or authority that resulted in any damages to plaintiff. N.C. Gen. Stat. § 143-291(a).

***********Based upon the forgoing Findings of Fact and Conclusions of Law, it is therefore:

ORDER

1. That plaintiff shall have and recover nothing from the defendant in this civil action, and plaintiff's claim for the same is DISMISSED WITH PREJUDICE. Plaintiff's Motion to Compensate Plaintiff for Property is DENIED.

2. Defendant shall bear the costs, and no costs are taxed against the plaintiff.

This the 9^th day of August 2005.

S/_______________ DIANNE C. SELLERS COMMISSIONER

CONCURRING:

S/_____________ THOMAS J. BOLCH COMMISSIONER

S/_______________ CHRISTOPHER SCOTT COMMISSIONER