Vest v. Easley

• Citation: 549 S.E.2d 568,145 NC App. 70
• Decision Date: 17 July 2001
• Docket Number: No. COA00-635.,COA00-635.
• Parties: Keith Brent VEST v. Michael F. EASLEY, North Carolina Attorney General; Sam F. Boyd, Executive Director North Carolina Parole Commission; Franklin Freeman, Advisor to Governor and Past Secretary of North Carolina Department of Correction; Mack Jarvis, Past Secretary of North Carolina Department of Correction; Joseph Hamilton, Secretary of North Carolina Department of Correction; Juanita Baker, Chairman of North Carolina Parole Commission; Elbert Buck, Charles L. Mann, Sr., William Lowry, Peggy Stamey, Members of the North Carolina Parole Commission.
• Court: North Carolina Court of Appeals

549 S.E.2d 568

145 NC App. 70

Keith Brent VEST v. Michael F. EASLEY, North Carolina Attorney General; Sam F. Boyd, Executive Director North Carolina Parole Commission; Franklin Freeman, Advisor to Governor and Past Secretary of North Carolina Department of Correction; Mack Jarvis, Past Secretary of North Carolina Department of Correction; Joseph Hamilton, Secretary of North Carolina Department of Correction; Juanita Baker, Chairman of North Carolina Parole Commission; Elbert Buck, Charles L. Mann, Sr., William Lowry, Peggy Stamey, Members of the North Carolina Parole Commission.

No. COA00-635.

Court of Appeals of North Carolina.

July 17, 2001.

Michael F. Easley, Attorney General by Elizabeth F. Parsons, Assistant Attorney General, for defendant-appellant State.

George B. Currin, Raleigh, amicus curiae.

THOMAS, Judge.

Defendants appeal from a partial denial of summary judgment granted in favor of plaintiff, Keith Brent Vest, who had brought an action requesting both damages and a declaratory judgment regarding his parole eligibility status. For the reasons stated herein, we reverse in part and dismiss in part.

The facts are as follows: In March 1990, plaintiff was convicted of assault with a deadly weapon with intent to kill inflicting serious injury and assault with a deadly weapon inflicting serious injury. For these two felonious assault charges, plaintiff received a consolidated twenty-year sentence. At the same sentencing hearing, plaintiff also received a consecutive life sentence for the offense of first-degree burglary.

Plaintiff filed a complaint on 24 May 1999, alleging defendants incorrectly calculated his parole eligibility. Defendants were sued in both their individual and official capacities. The North Carolina Parole Commission (Commission) had originally calculated that plaintiff was eligible for parole on the assault charges on 11 February 1991. Because of the consecutive life sentence, the Commission calculated his parole eligibility date on the total sentences to be 23 June 2006. In June 1998, however, prior to this action, it was corrected by the Commission to 8 February 2001. By error, according to the Commission's calculations, plaintiff was actually considered for parole and had a hearing on 11 February 1999. Parole was denied.

Plaintiff contends his eligibility date has not been properly aggregated, or properly reduced through earned gain time and/or meritorious gain time. In his complaint, plaintiff claims he is entitled to compensatory damages in excess of $10,000 due to loss of wages, loss of benefits, loss of status, loss of reputation and inconvenience all caused by defendants' discrimination, violation of due process and cruel and unusual punishment. Plaintiff also requested a declaratory judgment computing and setting his earliest parole eligibility date, punitive damages, attorney fees and court costs.

Defendants answered by claiming sovereign immunity and alleging they properly calculated the date plaintiff would be eligible for parole. Plaintiff and defendants all moved for summary judgment and, on 1 November 1999, the trial judge: 1) dismissed all claims against defendant Easley; 2) dismissed plaintiff's claims for punitive damages against the remaining defendants; 3) denied defendants' summary judgment motion as to state and federal constitutional claims, declaratory judgment claims and negligence claims; and 4) denied plaintiff's motion for summary judgment. Defendants appeal the denial of their motion for summary judgment. Plaintiff assigned error to the dismissals, but failed to brief them. Accordingly, plaintiff's assignments of error are not properly before this Court and we do not address them. N.C.R.App. P. 10(a) (2000).

Before we consider defendants' arguments, we note the trial court's order would not normally be immediately appealable because it would be considered interlocutory. State ex rel. Employment Security Commission v. IATSE Local 574, 114 N.C.App. 662, 663, 442 S.E.2d 339, 340 (1994). A ruling is interlocutory if it does not determine the issues but directs some further proceeding preliminary to a final decree. Blackwelder v. Dept. of Human Resources, 60 N.C.App. 331, 299 S.E.2d 777 (1983). However, an interlocutory order may be heard in appellate courts if it affects a substantial right. See N.C. Gen.Stat. § 1-277(a) (1999). This Court has held that denial of a motion for summary judgment is immediately appealable if it involves an immunity defense. Staley v. Lingerfelt, 134 N.C.App. 294, 517 S.E.2d 392, rev. denied, 351 N.C. 109, 540 S.E.2d 367 (1999). Such a defense is present in the instant case.

By defendants' first assignment of error, they argue the trial court erred in denying their summary judgment motion because there were no genuine issues of material fact. More specifically, defendants argue the following: 1) sovereign immunity protects defendants in their official capacities against plaintiff's negligence claims; 2) public official immunity protects defendants in the claims arising under 42 U.S.C. § 1983; 3) qualified immunity protects defendants in their individual capacities in claims arising under 42 U.S.C. § 1983; 4) quasi-judicial immunity protects defendants Boyd, Baker, Buck, Lowry, Mann and Stamey in their individual capacities in plaintiff's claims for damages; 5) plaintiff failed to show malicious conduct; and 6) plaintiff failed to show injury. We agree.

We note that summary judgment is appropriate "if 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) (1999).

Sovereign immunity is a theory or defense established to protect a sovereign or state as well as its officials and agents from suit in certain instances. See Herring v. Winston-Salem/Forsyth County Board of Education, 137 N.C.App. 680, 529 S.E.2d 458, rev. denied, 352 N.C. 673, 545 S.E.2d 424 (2000). The doctrine applies when the agency or entity is being sued for the performance of a governmental function. Messick v. Catawba County, 110 N.C.App. 707, 714, 431 S.E.2d 489, 493, disc. review denied, 334 N.C. 621, 435 S.E.2d 336 (1993). It mandates that the state is immune from suit unless it expressly consents to be sued through a waiver, evidenced by the purchase of liability insurance or, unless a statutory waiver of immunity applies. Id. See also Hargrove v. Billings & Garrett, Inc., 137 N.C.App. 759, 529 S.E.2d 693 (2000); Coastland Corp. v. North Carolina Wildlife Resources Comm'n, 134 N.C.App. 343, 517 S.E.2d 661 (1999). Sovereign immunity has several forms, including quasi-judicial and public official immunity, all deriving from the English feudal theory of "the king can do no wrong." See Epps v. Duke Univ., Inc., 122 N.C.App. 198, 468 S.E.2d 846, rev. denied, 344 N.C. 436, 476 S.E.2d 115 (1996).

Quasi-judicial immunity is an absolute bar, available for individuals in actions taken while exercising their judicial function. Northfield Development Co., Inc. v. City of Burlington, 136 N.C.App. 272, 523 S.E.2d 743 (2000) (citations omitted). In effect, the rule of judicial immunity extends to those performing quasi-judicial functions. See Hoke v. Bd. of Medical Examiners of the State of N.C., 445 F.Supp. 1313, 1314 (W.D.N.C.1978). "Quasi-judicial `decisions involve the application of ... policies to individual situations rather than the adoption of new policies.'" Northfield, 136 N.C.App. at 282, 523 S.E.2d at 750. Further, it has been held that the members of a state parole board perform quasi-judicial functions and are immune from suit under section 1983. See Franklin v. Shields, 569 F.2d 784 (4th Cir.1977), cert. denied, 435 U.S. 1003, 98 S.Ct. 1659, 56 L.Ed.2d 92 (1978); Pope v. Chew, 521 F.2d 400, 405 (4th Cir.1975). In the case at bar, six of the defendants are members or former members of the Commission. We hold that quasi-judicial immunity extends to them.

Public official immunity, or qualified immunity, on the other hand, is not an absolute bar, as it has three exceptions. Under public official immunity, if a public officer lawfully exercises judgment and discretion, is within the scope of his official authority, and acts without malice or corruption, he is protected from liability. Smith v. State, 289 N.C. 303, 331, 222 S.E.2d 412, 430 (1976). However, public officials must be distinguished from public employees. A public official is one whose position is created by the N.C. Constitution or the N.C. General Statutes and exercises some portion of sovereign power and discretion, whereas public employees perform ministerial duties. Block v. County of Person, 141 N.C.App. 273, 540 S.E.2d 415 (2000) (No. COA99-1306). In the case at bar, all of the remaining defendants clearly hold discretionary jobs. The members of the Commission have jobs established by N.C. Gen.Stat. § 148-57 (1999). N.C. Gen.Stat. § 143B-263 (1999) establishes a Secretary of the Department of Correction as the head of the department. We hold defendants are all entitled to public official immunity.

As to plaintiff's negligence claims, defendants contend sovereign immunity protects them in their official capacities against plaintiff's negligence claims. There is no question that defendants were performing a governmental function. It is well-established law that with no allegation of waiver in a plaintiff's complaint, the plaintiff is absolutely barred from suing the state and its public officials in their official capacities in an action for negligence. See Messick, 110 N.C.App. at 714, 431 S.E.2d at 493; Meyer v. Walls, 347 N.C. 97, 489 S.E.2d 880 (1997); Epps v. Duke Univ., Inc., 122 N.C.App. 198, 468 S.E.2d 846 (1996). In the instant case, plaintiff did not allege a waiver. Plaintiff may only pierce the defendants' sovereign immunity by showing one of the...