Price v. Davis, COA98-591.

CourtCourt of Appeal of North Carolina (US)
Citation512 S.E.2d 783,132 NC App. 556
Docket NumberNo. COA98-591.,COA98-591.
PartiesJames E. PRICE, Plaintiff-Appellee, v. Larry DAVIS and B. Dewitt Creecy, Defendant-Appellants.
Decision Date16 March 1999

512 S.E.2d 783
132 NC App.

James E. PRICE, Plaintiff-Appellee,
Larry DAVIS and B. Dewitt Creecy, Defendant-Appellants

No. COA98-591.

Court of Appeals of North Carolina.

March 16, 1999.

512 S.E.2d 785
James E. Price, pro se, Swan Quarter, for plaintiff-appellee

Attorney General Michael F. Easley, by Assistant Attorney General William McBlief, for defendant-appellants.

MARTIN, Judge.

Plaintiff, an inmate confined in the custody of the North Carolina Department of Correction, filed this action on 12 May 1995 seeking compensatory and punitive damages for alleged deprivations of his statutory and constitutional rights. In his complaint, plaintiff alleged that on 23 March 1995, he was transferred from Harnett Correctional Center to Odom Correctional Center. Upon his arrival at Odom, plaintiff alleged that defendant Creecy, a correctional sergeant, confiscated twenty-six solid-barrel ball point pens, nine highlighters, and a padlock from plaintiff, in violation of G.S. § 148-11, prison policy, and plaintiff's due process rights. Plaintiff also alleged that on 8 April 1995, defendant Davis, the assistant superintendent at Odom, refused to permit plaintiff to receive various legal texts which had been brought to him by a visitor, in violation of G.S. § 148-11, prison policy, and plaintiff's constitutional right to meaningful access to the courts.

Defendants filed an answer, admitting the confiscation of contraband materials from plaintiff, denying the other material allegations of the complaint, and asserting affirmative defenses, including sovereign and governmental immunity, and qualified immunity. Defendants thereafter moved for summary judgment. The motion was supported by affidavits of defendants Davis and Creecy, in which they averred the contraband items were confiscated from plaintiff according to written Odom Standard Operating Procedures and that replacement "see-through" pens were offered to plaintiff but refused by him. They also averred that plaintiff's personal lock was considered a security risk and a replacement combination lock was issued to him. The confiscated materials were secured in the Odom mailroom and, according to defendant Davis, were forwarded to the Columbus Correctional Center upon plaintiff's subsequent transfer to that facility. In addition, defendant Davis asserted that Division of Prisons ("DOP") Policy and Odom Standard Operating Procedures permit medium security inmates such as plaintiff to receive publications only directly from the publisher. Copies of the applicable DOP Policy Manual and Odom Standard Operating Procedures, as well as correspondence directed to plaintiff and various other documents, were attached to the affidavits. Plaintiff asserted the confiscated items were permitted according to the terms of an "Inmate Booklet", dated April 1997, issued by the Department of Correction.

On 6 March 1998, the trial court entered an order in which it determined that a genuine issue of material fact existed as to "whether a prisoner may rely upon the Department of Correction `Inmate Booklet'" and that defendants were not entitled to summary judgment. Defendants appeal from the denial of their motion for summary judgment.


The order denying defendants' motion for summary judgment is interlocutory; while, as a general rule, such orders are not immediately appealable, this Court has repeatedly held that appeals raising issues of governmental or sovereign immunity affect a substantial right sufficient to warrant immediate appellate review. See, e.g., Derwort v. Polk County, 129 N.C.App. 789, 501 S.E.2d 379 (1998), Hedrick v. Rains, 121 N.C.App. 466, 466 S.E.2d 281, affirmed, 344 N.C. 729, 477 S.E.2d 171 (1996). "We allow interlocutory appeals in these situations because `the essence of absolute immunity is its possessor's entitlement not to have to answer for his conduct in a civil damages action.'" Epps v. Duke University, Inc., 122 N.C.App.

512 S.E.2d 786
198, 201, 468 S.E.2d 846, 849, disc. review denied, 344 N.C. 436, 476 S.E.2d 115 (1996) (citing Herndon v. Barrett, 101 N.C.App. 636, 639, 400 S.E.2d 767, 769 (1991)). Therefore, to the extent defendants' appeal is based on an affirmative defense of immunity, this appeal is properly before us


Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law." N.C. Gen.Stat. § 1A-1, Rule 56(c) (1997). The movant bears the burden of establishing that no genuine issue of material fact exists, and can meet the burden by either "1) Proving that an essential element of the opposing party's claim is nonexistent; or 2) Showing through discovery that the opposing party cannot produce evidence sufficient to support an essential element of his claim nor sufficient to surmount an affirmative defense to his claim." Messick v. Catawba County, 110 N.C.App. 707, 712, 431 S.E.2d 489, 492-93, disc. review denied, 334 N.C. 621, 435 S.E.2d 336 (1993).


We first address plaintiff's claims for damages, made against defendants in their official capacities, alleging defendants' actions violated the provisions of North Carolina statutes and prison regulations. As a general rule, governmental, or sovereign immunity, "shields municipalities and the officers or employees thereof sued in their official capacities from suits based on torts committed while performing a governmental function." Kephart v. Pendergraph, ___ N.C.App. ___, 507 S.E.2d 915, 918 (1998). Provided that the State has not consented to suit or has waived its immunity through the purchase of liability insurance, "the immunity provided...

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