Sartori v. NC Dep't of Pub. Safety ( 2015 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance with
the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA15-84
Filed: 1 September 2015
Wake County, No. 14 CVS 8849
ROBERT ALLEN SARTORI, Plaintiff,
v.
NORTH CAROLINA DEPARTMENT OF PUBLIC SAFETY; DPS
COMMUNICATIONS, INFORMATION TECHNOLOGY SERVICES; GEORGE T.
SOLOMON; KIERAN J. SHANAHAN; AMERICAN TELEPHONE AND TELGRAPH
CO.; GLOBAL-TEL-LINK CORP; and EVERCOM SYSTEMS INC., Defendants.
Appeal by plaintiff from order entered 11 August 2014 by Judge Donald W.
Stephens in Wake County Superior Court. Heard in the Court of Appeals 13 August
2015.
Robert Sartori, pro se.
Attorney General Roy Cooper, by Assistant Attorney General Yvonne B. Ricci,
for defendant.
INMAN, Judge.
Plaintiff Robert Allen Sartori appeals the order dismissing his civil action
against the North Carolina Department of Public Safety (“NCDPS”), George T.
Solomon (“Solomon”) and Kieran J. Shanahan (“Shanahan”) in their official capacities
as NCDPS officers, and several telecommunications providers (the “providers”)
(collectively, “Defendants”) as frivolous pursuant to N.C. Gen. Stat. § 1-110(b).
SARTORI V. NCDPS
Opinion of the Court
After careful review, we conclude that the trial court did not abuse its
discretion in dismissing Plaintiff’s action and affirm the order.
Factual and Procedural Background
On 3 July 2014, Plaintiff, an inmate at Scotland Correctional Institution, filed
a petition to sue as an indigent, along with a proposed complaint, in Wake County
Superior Court. Plaintiff’s proposed complaint alleged that, between 5 March 1997
and 1 July 2011, the services contract between the providers and NCDPS resulted in
excessively high fees to the recipients of the inmates’ phone calls. Furthermore,
Plaintiff contended that inmates are often unable to get a dial tone when using the
phones. In his complaint, Plaintiff asserted two causes of action: (1) violations of the
First, Fifth, and Fourteenth Amendments of the United States Constitution and
violations of various sections of the North Carolina Constitution’s Declaration of
Rights; and (2) violations of sections 18, 19, and 23 of the North Carolina Declaration
of Rights. Plaintiff failed to provide any specific allegations to support his second
cause of action but, instead, primarily argued that his claims were not barred by
sovereign immunity.
Judge Donald Stephens determined that Plaintiff’s complaint was frivolous
pursuant to N.C. Gen. Stat. § 1-110(b) and dismissed it. Plaintiff received permission
from the trial court to appeal the order and filed a notice of appeal on 3 September
2014.
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SARTORI V. NCDPS
Opinion of the Court
Standard of Review
This Court reviews a trial court’s N.C. Gen. Stat. § 1-110(b) determination on
frivolity for an abuse of discretion. Gray v. Bryant, 189 N.C. App. 527, 528, 658 S.E.2d
537, 538 (2008). Accordingly, “the trial court's decision is to be accorded great
deference and will be upset only upon a showing that it was so arbitrary that it could
not have been the result of a reasoned decision.” Kingston v. Lyon Constr., Inc., 207
N.C. App. 703, 709, 701 S.E.2d 348, 353 (2010) (internal quotation marks omitted).
Analysis
N.C. Gen. Stat. § 1-110(b) governs the treatment of motions to proceed as an
indigent for inmates:
Whenever a motion to proceed as an indigent is filed pro se
by an inmate in the custody of the Division of Adult
Correction of the Department of Public Safety, the motion
to proceed as an indigent and the proposed complaint shall
be presented to any superior court judge of the judicial
district. This judge shall determine whether the complaint
is frivolous. In the discretion of the court, a frivolous case
may be dismissed by order.
This Court has explained that
[a] claim is frivolous if a proponent can present no rational
argument based upon the evidence or law in support of [it].
In determining whether a complaint is frivolous, the
standard is not the same as in a ruling on a motion under
Rule 12(b)(6). Instead, we look with a far more forgiving
eye in examining whether a claim rests on a meritless legal
theory.
Griffith v. N.C. Dep't of Corr., 196 N.C. App. 173, 174, 675 S.E.2d 72, 73 (2009).
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SARTORI V. NCDPS
Opinion of the Court
Here, as the basis for his causes of action, Plaintiff identified various
constitutional violations including, but not limited to, violations of the Eight
Amendment’s prohibition on cruel and unusual punishment and the First
Amendment’s right to free speech under the United States Constitution and
violations of equal protection and prohibition of monopolies under North Carolina
Declaration of Rights. Plaintiff’s constitutional claims rely on vague factual
allegations that Defendants engaged in unfair and deceptive, fraudulent, and
deceptive acts. These allegations are insufficient to establish the constitutional
violations Plaintiff is asserting as the bases for his complaint. Thus, even construing
Plaintiff’s proposed complaint liberally and with a “forgiving eye,” Griffith, 196 N.C.
App. at 174, 675 S.E.2d at 73, it is devoid of any factual allegations or “rational
argument,” id., that Defendants engaged in conduct that violated the United States
and North Carolina Constitutions. In the absence of any underlying support for
Plaintiff’s claims, we are unable to conclude that the trial court’s action was so
arbitrary that it could not have been the result of a reasoned decision. Accordingly,
we affirm the trial court’s order dismissing Plaintiff’s proposed complaint for frivolity
pursuant to N.C. Gen. Stat. § 1-110(b).
Based on our conclusion that the trial court did not abuse its discretion in
dismissing Plaintiff’s action, it is not necessary to address Defendants’ alternative
argument that defendants Solomon, Shanahan and NCDPS are entitled to judgment
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SARTORI V. NCDPS
Opinion of the Court
as a matter of law based on sovereign immunity. See generally Hedgepeth v.
Lexington State Bank, __ N.C. App. __, __, 744 S.E.2d 138, 144 (2013) (declining to
address the defendants’ alternative basis for dismissal once the trial court’s dismissal
order was affirmed). Accordingly, we deny Defendants’ motion to dismiss the appeal.
AFFIRMED.
Judges STROUD and MCCULLOUGH concur.
Report per Rule 30(e).
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