Williams v. Greene, 7714SC447

• Decision Date: 18 April 1978
• Docket Number: No. 7714SC447,7714SC447
• Parties: Robert P. WILLIAMS v. G. Perry GREENE, Edward W. Jones and J. D. Cabe.
• Court: North Carolina Court of Appeals

Page 156

243 S.E.2d 156

36 N.C.App. 80

Robert P. WILLIAMS v. G. Perry GREENE, Edward W. Jones and J. D. Cabe.

No. 7714SC447.

Court of Appeals of North Carolina.

April 18, 1978.

Blackwell M. Brogden, Durham, for plaintiff appellee.

Atty. Gen. Rufus L. Edmisten, by Deputy Atty. Gen. William W. Melvin, Raleigh, for defendant appellants.

HEDRICK, Judge.

It is uncontroverted that the plaintiff in this case is a permanent state employee as defined in G.S. 126-39 and is entitled to all statutory rights which accompany his status. Specifically, the State Personnel Act, enacted in Chapter 126 of the General Statutes, provides that a permanent state employee shall not be discharged "except for just cause" and in the event of his discharge he must be furnished with a written statement of the acts or omissions which led to such action. G.S. 126-35. Thereafter, he may appeal to the head of the department and to the State Personnel Commission which has the authority under G.S. 126-4(9) to investigate and take corrective action concerning discharges of employees. An employee who is dissatisfied with the decision of the Commission may seek judicial review thereof in accordance with provisions in the Administrative Procedure Act, G.S. 150A-43, et seq., which is expressly applicable to state employees by the terms of G.S. 126-43.

Defendants, citing Stevenson v. Department of Insurance, 31 N.C.App. 299, 229 S.E.2d 209, cert. denied, 291 N.C. 450, 230 S.E.2d 767 (1976), contend that the trial court was without authority to grant relief in this proceeding until the plaintiff had exhausted these administrative remedies. In Stevenson the plaintiff, who had been discharged from a position in the Department of Insurance, sought and obtained preliminary injunctive relief in the Superior Court prior to a hearing before the State Personnel Commission. On appeal Judge Britt, speaking for this Court, discussed Article 4 of the Administrative Procedure Act entitled "Judicial Review" upon which plaintiff was asserting his right to an injunction, and concluded that the statutes in that Article authorize "a stay order only of those final agency decisions in which the person aggrieved has exhausted his administrative remedies." 31 N.C.App. at 302-3, 229 S.E.2d at 211. Thus, the narrow holding of Stevenson is that a party must exhaust his administrative remedies before he seeks judicial review under Chapter 150A of the General Statutes.

The plaintiff acknowledges the Stevenson decision but contends that the principles therein are not applicable to the present case since "he neither sought nor obtained relief under G.S. 150A-48." In Stevenson the plaintiff alleged that there was no just cause to support his dismissal and sought injunctive relief in the Superior Court solely on that basis. His complaint contained no allegations stating a claim under the United States Constitution or any federal statute. In contrast, the plaintiff in this case alleges an improper dismissal in violation of his civil rights under the Civil Rights Act of 1871, 42 U.S.C. § 1983.

Congress, in the enactment of 28 U.S.C. § 1343, conferred on the United States District Courts original jurisdiction of claims arising under 42 U.S.C. § 1983. According to common interpretation "original jurisdiction" should be distinguished from "appellate jurisdiction" and means that the federal District Court shall have the power to hear such cases in the first instance. It follows that since the phrase does not contemplate "exclusive jurisdiction," the state courts have concurrent jurisdiction with the federal court to entertain § 1983 claims. New Times, Inc. v. Arizona Board of Regents, 20 Ariz.App. 422, 513 P.2d 960 (1973), vacated on other grounds, 110 Ariz. 367, 519 P.2d 169 (1974); Brown v. Pitchess, 13 Cal.3d 518, 119 Cal.Rptr. 204, 531 P.2d 772 (1975); Alberty v. Daniel, 25 Ill.App.3d 291, 323 N.E.2d 110 (1974); Holt v. City of Troy, 78 Misc.2d 9, 355 N.Y.S.2d 94 (1974). Thus, unless the principle enunciated in Stevenson is applicable to a § 1983 action, the Superior Court had jurisdiction to grant preliminary relief in this case.

The exhaustion doctrine has been employed by the courts in appropriate cases to require a plaintiff to take advantage of available administrative remedies before resorting to the courts for redress of his grievances. K. C. Davis, Administrative Law of the Seventies, Supplementing Administrative Law Treatise § 20.01 (1976). However, as a general rule the failure of a plaintiff to exhaust his state administrative remedies has not been considered a bar to a claim asserted under § 1983. Davis, supra § 20.01-1, at 452. In McCray v. Burrell, 516 F.2d 357 (4 Cir. 1975) (en banc), the United States Court of Appeals for the fourth circuit after a comprehensive discussion recognized the general rule emanating from recent Supreme Court decisions that exhaustion of state administrative remedies is not required in a § 1983 action by state prisoners. In Phillips v. Puryear, 403 F.Supp. 80 (W.D.Va.1975), a federal District Court followed McCray holding that the exhaustion doctrine was inapplicable in a § 1983 action by a state teacher contesting his dismissal. In view of the foregoing authority we are compelled to conclude that where as in the present case a state employee asserts civil rights violations under § 1983 for his wrongful dismissal, the Superior Court retains its traditional power to grant preliminary injunctive relief without requiring him to exhaust the administrative remedies provided in Chapter 126 of the General Statutes.

The defendant also contends that the trial court erred in its entry of a preliminary injunction since the plaintiff has failed to demonstrate any irreparable injury. The North Carolina courts have adhered to the familiar rule that a preliminary injunction should issue pending trial on the merits only when "(1) there is probable cause that plaintiff will be able to establish the rights which he asserts and (2) there is reasonable apprehension of irreparable loss unless interlocutory injunctive relief is granted, or unless interlocutory injunctive relief appears reasonably necessary to protect plaintiff's rights during the litigation." Pruitt v. Williams, 288 N.C. 368, 372, 218 S.E.2d 348, 351 (1975). In our review of the entry of the injunction by the Superior Court we are not bound by its findings of fact but may consider the evidence and determine independently the plaintiff's right to preliminary injunctive relief. Waff Bros. v. Bank, 289 N.C. 198, 221 S.E.2d 273 (1976).

Without examining the prospects of plaintiff's eventual success, we think he has failed to show any...