The Newsletter of North Carolina Prisoner Legal Services, Inc.

NCPLS

Volume IX, Issue 2, August 2009

ACCESS

An Introduction to Civil Claims
By Ken Butler, NCPLS Staff Attorney

Broadly speaking, legal actions fall
into one of two categories. The
first consists of criminal actions.
These are brought by the government, either state or federal,
to punish individuals who have
violated some provision of the
criminal law. All other types of
legal actions fall on the civil side
of the law.1 This article seeks to
discuss the nature of civil claims,
outline the types of claims that may
be pursued by inmates in the N.C.
Department of Correction, and to
suggest the appropriate legal forum
in which to bring such claims.
Civil claims cover vast areas of the
law. They include claims for injury
to persons or property, employment law, family law, contracts,
real estate issues, and many others.
The person who brings a civil
claim is referred to as the plaintiff
and the document that typically
starts a lawsuit is referred to as a
complaint. The persons or entities against whom the lawsuit is
brought are called defendants.
Civil actions are brought to achieve
two types of remedies. The first,
and most common, is referred to
as legal relief which is an award of
money damages. There are various
categories of money damages that
may be awarded. These include:
(1) compensatory damages – an
award of money designed to compensate a person for the amount
of injury, whether personal injury
or loss of property, he or she has
suffered; (2) punitive damages
– which are awarded in exceptional
cases where a defendant’s conduct
is so serious that additional dam-

ages are considered appropriate
both to punish the defendant, and
serve as a warning to others who
might commit the same type of
actions; and (3) nominal damages
– this is a small amount of money
(such as $1.00) which is awarded
where there has been no injury to
justify compensatory damages but
where a symbolic award is thought
necessary to recognize that a
person’s rights were violated.
The second type of remedy is
referred to as equitable relief. This
includes claims for declaratory
relief, or a decision from the court
that spells out the rights of the parties. An example of this would be
an action in which a court declares
that a particular statute, regulation,
or policy violates a party’s rights.
A similar type of relief is injunctive
relief, in which a court orders the
defendant either to take a particular
action, or cease a particular action.
In many cases a party will seek
both declaratory and injunctive
relief.
Inmate civil claims for damages
typically include such issues as:
•

•

•

The quality of
medical care
provided for an
illness or injury;
The use of
excessive force
by correctional
staff
Claims that staff
failed to protect
them from violence by other
inmates

•

•

That the inmate
has been injured
or put at risk by
some condition
of confinement.
The actions
of staff have
resulted in
the loss of or
damage to personal property.

Other types of civil rights claims
are more likely to focus on declaratory or injunctive relief. These
would include challenges to particular prison policies that are claimed
to infringe on a prisoner’s rights,
including religion, free speech,
equal protection, or similar matters.
The plaintiff in a civil action bears
the burden of proving his or her
claim. The burden of proof in a
civil claim is by “a preponderance
(Continued on Page 4)
In this Issue:

An Introduction to Civil Claims

1

Changes in NCPLS Access

2

The North Carolina Innocence Inquiry
Commission
2
Supreme Court Rejects Prisoner’s Right
to DNA Testing
3
Prisoner Participation in Medical
Research and Clinical Trials
Frequently Asked Questions

5
10

New Edition of Prisoner’s Self Help
Litigation Manual to be Published
11
Admissibility of Testimony of Planted
Police Informant
12
Report on New and Pending Legislation
in North Carolina
12

NCPLS ACCESS

Page 2
ACCESS is a publication of North
Carolina Prisoner Legal Services,
Inc. Established in 1978, NCPLS is a
non-profit, public service organization.
The program is governed by a Board of
Directors who are designated by
various organizations and institutions,
including the North Carolina Bar
Association, the North Carolina Advocates for Justice, the ACLU of North
Carolina, and the Office of Indigent
Defense Services.
NCPLS serves a population of more
than 41,000 prisoners and 14,000 pretrial
detainees (with about 250,000 annual
admissions), providing information,
advice, and representation in all State and
federal courts to ensure humane conditions of confinement and to challenge
illegal convictions and sentences.
Executive Director
Mary S. Pollard
Editor
Ken Butler
Publisher
Mike Pearson
Please Note: ACCESS is published
four (4) times a year.
Articles, ideas
and suggestions are welcome.
Contact: ncpls@ncpls.org

Volume IX, Issue 2, August 2009

Changes in NCPLS Access
As many of you know, the recession has taken its toll on the North
Carolina state budget. Like every
state-funded entity, NCPLS has had
to look for places to trim expenses.
NCPLS is committed to quality
client service and will continue to
evaluate issues raised by inmates,
and litigate those issues when
appropriate. Because of budgetary

constraints, however, the decision
has been made to publish Access
twice a year instead of quarterly.
Although we are not publishing
as frequently, we intend that the
new issues be more useful to our
clients. This means that the issues
will be lengthier, and the articles
will attempt to explore certain legal
issues in more depth.

The North Carolina Innocence Inquiry Commission
By Kendra Montgomery-Blinn, J.D.
Executive Director
North Carolina Innoceny Inquiry Commission

The North Carolina Innocence
Inquiry Commission is now in
its second year of operation. The
Commission was created in 2007
to review post-conviction claims
of actual innocence. Since then,
the Commission has received 535
claims. Many claims are submitted
directly by North Carolina inmates.
The Commission is a state agency
that operates through the court
system. By law, the Commission is
only permitted to review claims of
actual innocence. This means that
it cannot review cases in which the
person claims that his or her rights
were violated or there were errors
in the trial. The Commission can
only review cases if a person is
completely innocent of the crime
for which they were convicted.
It is important to note that the
Commission is not allowed to
consider evidence that was already
presented at trial or available at
the time of plea. The Commission
cannot reevaluate the jury verdict.
It can only review cases in which
credible and verifiable new evidence of innocence exists.
Thinking about submitting a claim?

Consider the following tips:
-

-

-

-

-

Se habla español. The
Commission has translator
services available and can
answer letters in Spanish or
other languages.
You cannot submit a
claim if your case is being
actively reviewed by a law
school innocence project
or the NC Center on Actual
Innocence. The Commission will not review your
claim until it is closed with
those other agencies.
You can submit a claim if
you pleaded guilty. The
Commission is permitted
to review convictions that
resulted from a trial or a
guilty plea.
You can submit a claim if
your case is still on appeal.
You do not have to wait
until all of your appeals are
exhausted.
You can submit a claim
if you currently have an
attorney. Please provide
the contact information for
your attorney.

(Continued on Page 3)

Volume IX, Issue 2, August 2009

NCPLS ACCESS

The North Carolina Innocence Inquiry Commission

Page 3

(Continued)

(Continued from Page 2)

-

-

You can submit a claim if
you are about to be released
from prison or even if you
are no longer serving time
for the conviction for which
you are claiming actual
innocence.
If you are not actually
innocent, the Commission’s investigation could
be harmful to you. If the
Commission uncovers new
evidence of your guilt, they

are required to turn that
evidence over to the District
Attorney.
If you wish to apply to the North
Carolina Innocence Inquiry Commission all you need to do is send a
letter. The mailing address is:
The North Carolina Innocence
Inquiry Commission
North Carolina Administrative
Office of the Courts
P.O. Box 2448
Raleigh, NC 27602

Be sure to explain why you are
innocent and the new evidence that
can prove your innocence. The
Commission will review your letter
and may send you further documentation.
Please be aware that the Commission’s investigation is a lengthy
process and can take months or
even years. To date the Commission has conducted innocence hearings in two cases and are moving
forward on many others.

Supreme Court Rejects Prisoner’s Right to DNA Testing
By Michele Luecking-Sunman, NCPLS Staff Attorney

In District Attorney’s Office for
Third Judicial Dist. v. Osborne
129 S.Ct. 2308, 2314 (2009) the
Supreme Court ruled that prisoners
do not have a constitutional right
to DNA testing that might prove
their innocence. William Osborne,
convicted of sexual assault and
other crimes in Alaska, claimed
that he had a due process right to
access the evidence used against
him in order to subject it to DNA
testing at his own expense. The
federal district court first dismissed
his claim under Heck v. Humphrey,
512 U. S. 477 (1994), holding that
Osborne must proceed in habeas
because he sought to set the stage
for an attack on his conviction. The
Ninth Circuit reversed and concluded that Osborne’s claim was
properly brought under §1983. On
remand the district court addressed
Osborne’s assertion that he had
a constitutional right to a more
sophisticated form of DNA testing
than he was afforded at trial. The
district court agreed with Osborne
and noted that the testing sought
was not available at the time of
trial, that it could be accomplished

at little cost to the state (because
Osborne would pay for it himself)
and that the results were likely
to be material. The Ninth Circuit
affirmed the district court’s decision and the case was argued before
the Supreme Court this spring.
Chief Justice John Roberts, writing for the majority, concluded that
this issue is best left for the states
to decide. The Court rejected the
argument that a constitutional right
exists to DNA tests for prisoners. The Court noted that forty-six
states and the federal government
currently have legislation that
allows prisoners some access to
DNA testing. However, the Court
concluded that the availability
of new DNA technologies does
not suddenly cast doubt on every
criminal conviction involving
biological evidence and that it is
the province of the legislatures to
enact laws that address these new
issues. Addressing the Court’s concern that Osborne had been offered
and refused a more in-depth DNA
analysis at trial (but not one as
sophisticated as the tests available

now), Justice Alito questioned the
motives of prisoners seeking DNA
testing. “After conviction, with
nothing to lose, the defendant could
demand DNA testing in the hope
that some happy accident — for
example, degradation or contamination of the evidence — would
provide the basis for seeking
postconviction relief.” In a dissent Justice Stevens questioned the
majority’s decision. “For reasons
the state has been unable or unwilling to articulate, it refuses to allow
Osborne to test the evidence at his
own expense and to thereby ascertain the truth once and for all.”
Although the Supreme Court
rejected a constitutional right to
post-conviction DNA testing, many
states have provided for such testing by statute. North Carolina’s
DNA testing statute is found
at N.C. Gen. Stat. § 15A-269.
NCPLS has prepared a packet for
inmates who are interested in learning more about this right which is
available at no cost upon a written
request.

Page 4

NCPLS ACCESS

Volume IX, Issue 2, August 2009

An Introduction to Civil Claims

(Continued from Page 1)

of the evidence.” This differs from
the criminal law burden of “beyond
a reasonable doubt.” A preponderance of the evidence is also
referred to a “the greater weight
of the evidence” meaning that the
evidence is not simply equally balanced between the parties, but tips
at least slightly toward the plaintiff.2
Section 1983 Claims
Section 1983 of Title 42 of the
United States Code is the oldest of
the nation’s civil rights laws having
been enacted shortly after the
Civil War. This statute has been
the leading source of federal civil
rights claims brought to seek relief
from prison conditions.
There are two requirements in
order to bring a claim under Section 1983. First, the plaintiff
must show that he or she has been
deprived of a right secured by the
U.S. Constitution or some other
federal law.3 The violation of a
state law, regulation or policy is not
a basis for bringing an action under
Section 1983 unless the conduct
also violates a specific federal
right. For example, a claim that
the DOC is not following its own
policies or rules is not enough to
support a civil rights claim under
Section 1983.
The second requirement is that
the deprivation of the federal right
was caused by someone who was
acting “under color of state law.” 4
This means that a defendant must
“have exercised power ‘possessed
by virtue of state law and made
possible only because the wrongdoer is clothed with the authority of
state law,’” 5 For the purposes of
this article correctional officers and
administrators will almost always
be considered to have acted under

(Continued)

color of state law with regard to
claims brought by inmates.
Section 1983 claims for money
damages are most commonly
brought alleging a violation of the
Eighth Amendment’s ban on “cruel
and unusual punishment.” These
involve issues regarding conditions
of confinement that have resulted
in some type of physical injury, and
include claims of inadequate medical care, the use of excessive force,
and the failure of staff to protect
an inmate from violence by other
inmates.6 However, not every such
injury will result in a successful
constitutional claim.
An Eighth Amendment claim
requires an inmate to satisfy a twopart test. First, it must be shown
that the inmate has been deprived
of a “basic human need” that is sufficiently serious to justify Eighth
Amendment protection.7 These
basic needs include food, clothing,
sanitation, shelter, medical care,
and personal safety.8 This is often
referred to as an “objective” prong
of showing a sufficiently serious
injury. However,
the constitutional
prohibition against
the infliction of
cruel and unusual
punishment does not
mandate comfortable prisons, and
only those deprivations denying the
minimal civilized
measure of life’s
necessities are sufficiently grave to
form the basis of an
Eighth Amendment
violation. Indeed,
the ordinary discomfort accompanying
prison life is part
and parcel of the
punishment those
individuals con-

victed of criminal
offenses endure as
recompense for their
criminal activity.
Accordingly, only
extreme deprivations are adequate
to satisfy the objective component of
an Eighth Amendment claim.9
The second prong is referred to
as a “subjective” requirement of
showing that the defendant(s) acted
with a “sufficiently culpable” state
of mind. 10 The need for showing a
defendant’s mental state is required
by the fact that the Eighth Amendment addresses “punishments,” not
simply injuries that a prisoner may
have suffered. Therefore, there
must be some mental state that a
court can find was the equivalent
of an intent to punish in a prison
official’s actions.11 In cases alleging inadequate medical care, failure
to protect from inmate violence,
and conditions of confinement, it
must be shown that prison officials
were “deliberately indifferent” to a
significant risk of serious harm to
the inmate.12 However, in cases of
excessive force, the inmate must
show that prison officials used
force “maliciously and sadistically
for the very purpose of causing
harm” rather than in a good faith
effort to restore order or maintain
prison discipline. 13
Since 1996, prisoner civil rights
cases have been subject to the
provisions of the Prison Litigation
Reform Act (PLRA). This was
enacted by Congress to deal with
what was claimed to be a large
amount of “frivolous” litigation
brought by prison and jail inmates.
The result of this was to place a
number of significant barriers to
inmates who seek to use the federal
courts to seek redress of rights.
(Continued on Page 5)

Volume IX, Issue 2, August 2009

NCPLS ACCESS

Page 5

An Introduction to Civil Claims
(Continued from Page 4)

One such provision is that prison
inmates are now required to pay
the full amount of the federal civil
filing fee (currently $350.00) upon
filing a federal complaint. Before
the PLRA, most inmates were able
to avoid the federal civil filing fees
by asking to proceed in forma pauperis (IFP). The fact that federal
litigation was virtually cost-free for
inmates was seen as one of the reasons behind the enormous volume
of pro se prisoner litigation. An
inmate can still seek to proceed IFP
if he or she does not have the fee
amount at the time of filing. Under
these circumstances federal law
sets up a schedule by which payments are periodically deducted
from his or her prison account. 14
Under the PLRA federal courts
have the power to dismiss a prisoner claim that is found to be frivolous or malicious, or which fails
to state a claim for upon which
relief can be granted, or which
seeks money damages against a
defendant who is immune from
such liability. 15 The PLRA also
provides that a court can deny an
inmate IFP status if he or she has
had three previous complaints dismissed under one of those grounds,
unless the prisoner is found to be in
imminent danger of serious physical injury.16 Thus, the filing of
prior frivolous claims can bar an
inmate from later proceeding IFP
on a valid claim.
Prisoners must also completely
exhaust all available administrative remedies before seeking relief
in federal court. 17 For inmates in
the DOC, this means that an inmate
must have raised the same claim in
a prison grievance (using a DC-410
form) and have taken the matter all
the way through Step III. Failure
to do so can result in a federal court
granting a motion by the state to

(Continued)

dismiss a claim for the failure to
exhaust remedies. The PLRA also
prohibited inmates from recovering
money damages based on claims of
mental or emotional injury, unless
they also showed the existence of a
physical injury.18
The PLRA also set significant
limits on the authority of federal
judges to grant injunctive relief
in prisoner cases.19 Many of the
lawmakers who drafted the PLRA
were primarily concerned with
what they perceived as unwanted
intrusions by federal courts into
the operation of state prisons. The
power of a judge to use injunctive
relief in claims regarding prison
conditions now can go “no further than necessary to correct the
violation of the Federal right of a
particular plaintiff or plaintiffs.” 20
Furthermore the court cannot grant
an injunction unless “the court
finds that such relief is narrowly
drawn, extends no further than
necessary to correct the violation
of the Federal right, and is the
least intrusive means necessary to
correct the violation of the Federal
right.” Courts are also required
to give “substantial weight to any
adverse impact on public safety or
the operation of a criminal justice
system caused by the relief.” 21
State Tort Claims
The State Tort Claims Act22 provides another forum for inmate
claims. Under the Act, a person
who is injured by the negligence of
a state officer or employee, acting
in the course and scope of his job,
can bring a claim against the State.
These claims are brought in the
North Carolina Industrial Commission, which acts as the court
for deciding tort claims. Hearings
are conducted before a Deputy
Commissioner, who subsequently
renders an opinion as to whether
the plaintiff has proven negligence

and the amount of damages, if
any, the plaintiff should recover.
A party that disagrees with the
Deputy Commissioner’s decision
can appeal to the Full Commission.
Such an appeal consists of briefing and argument before a panel of
three Commissioners. Full Commission decisions can be appealed
to the N.C. Court of Appeals.
Negligence claims under the Act
are governed by the same rules
that apply to any other negligence
claim under North Carolina law.
The basic elements of a negligence
claim are: (i) a legal duty owed to
the plaintiff by the defendant, (ii)
a breach of that duty by the defendant, and (iii) that the defendant’s
breach of duty was a proximate
cause of an injury to the plaintiff.
23
A benefit of filing under the
Act, particularly for inmates, is
that the plaintiff can seek recovery
for injury from the State, without
having to sue the individual officer, who may not have sufficient
personal assets to pay an award
of damages. The Tort Claims Act
currently allows for a maximum
recovery of one million dollars.24
However, the Industrial Commission has no jurisdiction to hear
claims other than those alleging
negligence, and has no authority
to grant injunctive or declaratory
relief against a state agency.
In some cases, it is a close question
as to whether an inmate’ claim concerning inadequate medical care,
failure to protect from violence, or
conditions of confinement, should
be brought as a tort claim, or a
civil rights action under Section
1983. A key issue for most of these
claims is whether the inmate can
prove the necessary state of mind
for a Section 1983 action. As noted
above, an Eighth Amendment claim
requires at least a showing that the
defendant was “deliberately indif(Continued on Page 6)

Page 6

NCPLS ACCESS

Volume IX, Issue 2, August 2009

An Introduction to Civil Claims

(Continued from Page 5)

ferent” to a risk of harm. Deliberate indifference is a higher showing
than negligence.25 Rather, a plaintiff must show that the officer or
employee had actual knowledge of
a risk of harm and yet disregarded
the risk.26 To prove negligence,
however, a plaintiff need only
prove that a reasonable officer or
employee in the defendant’s place
knew, or should have known, of the
danger.27
Tort claims are also not subject to
the terms of the PLRA, meaning
that inmates can apply to proceed
IFP, to avoid paying filing fees.
Tort claim proceedings are also
more informal than many types of
court actions, and deputy commissioners are used to dealing with
individuals who are pursuing their
own claims.
This does not mean that there are
not hurdles than an inmate must
overcome. Like any other civil
claim, it is the plaintiff’s burden to
show that he or she should recover.
This means showing that the agents
or employees of the DOC were
negligent, and that this negligence
was the cause of an injury. Some
types of cases will require evidence from expert witnesses to
prove negligence. Medical cases
in particular, require that a medical
expert (such as a doctor) testify that
the care that the inmate received
was not in accordance with the
generally accepted standards of
practice for medical professionals
in the same field, and in the same
or similar communities.28 Indeed,
Rule 9(j) of the North Carolina
Rules of Civil Procedures requires
that a complaint alleging medical
malpractice contain a statement
that the medical care at issue has
been reviewed by a medical expert
who is willing to testify that the
medical care did not comply with
the applicable standard of care.
Unfortunately, most inmates will

(Continued)

find it difficult, if not impossible,
to obtain the services of a medical expert to testify in tort claim
proceedings.
North Carolina General Court of
Justice
State law claims against individual
defendants, including persons
unconnected with the prison
or criminal justice system, are
brought in the North Carolina state
courts. State courts are the appropriate forum for bringing claims
under the North Carolina Constitution, as well as for intentional
torts. Intentional torts include
such actions as assault and battery,
libel and slander, conversion, and
malicious prosecution. With a few
exceptions, the original jurisdiction
for all civil cases in North Carolina
is found in the trial courts of the
superior and district court divisions.29
The appropriate division to hear a
particular civil claim is determined
by the amount in controversy.
Claims greater than ten thousand
dollars, are heard in the superior
court, while claims of ten thousand
dollars or less are heard in district
court.30 Claims of five thousand
dollars or less can be heard in
small claims courts.31 However,
regardless of the amount at issue,
any claim that seeks:
(1) Injunctive
relief against the
enforcement of any
statute, ordinance,
or regulation;
(2) Injunctive
relief to compel
enforcement of any
statute, ordinance,
or regulation;
(3) Declaratory
relief to establish
or disestablish the
validity of any
statute, ordinance,

or regulation; or
(4) The enforcement
or declaration
of any claim of
constitutional right.
must be brought in superior court.32
In addition, civil matters dealing
with decedents’ estate and the probate of wills is exclusively in the
superior court.
Civil actions, particularly those for
damages, operate under statutes
of limitation. These are special
statutes, passed by the General
Assembly, which determine how
long a person has in which to
pursue a particular type of claim.
The reasons behind statutes of limitation are that it is thought unfair
for a defendant to have to defend
a claim after the passage of time,
where evidence might be lost and
memories concerning the events
in question have faded. Claims
concerning personal injury, injury
to personal property, assault and
battery, and false imprisonment
have a three year statute of limitation.33 (This same limitation period
applies to Section 1983 claims
raised in federal court.34) Previously persons who were imprisoned were considered to be under
a disability, and unable to pursue
their legal remedies. For persons
under disabilities (which included
prisoners, minors, the insane,
and incompetent) the statutes of
limitation were suspended until the
disability was removed. However,
North Carolina prisoners have not
been considered to be under disability since January 1, 1976.35
A key question in civil cases is
where a claim must be brought.
There are eight Judicial Divisions,
comprised of over 60 superior
court districts. The determination
of where to file a claim is said to be
an issue of the proper venue. Some
venue provisions are very strict.
(Continued on Page 7)

Volume IX, Issue 2, August 2009

NCPLS ACCESS

An Introduction to Civil Claims

(Continued from Page 6)

For example, claims involving real
property must be brought in the
county in which the property lies.36
Similarly, any claim “[a]gainst a
public officer or person especially
appointed to execute his duties,
for an act done by him by virtue
of his office; or against a person
who by his command or in his aid
does anything touching the duties
of such officer,” must be brought
in the county where the cause of
action arose.37 With some additional exceptions, which are not
likely to apply to inmates,
In all other cases
the action must be
tried in the county in
which the plaintiffs
or the defendants, or
any of them, reside
at its commencement, or if none
of the defendants
reside in the State,
then in the county
in which the plaintiffs, or any of them,
reside; and if none
of the parties reside
in the State, then
the action may be
tried in any county
which the plaintiff designates in
his summons and
complaint, subject
to the power of the
court to change the
place of trial, in the
cases provided by
statute.38

(Continued)

concurrent jurisdiction of state
courts, most Section 1983 claims
filed by prisoners are removed to
federal court by defense counsel.40
One reason for this is usually that
federal court civil dockets are often
not as crowded as those in state
courts.
Proceeding on Your Own / Pro Se
NCPLS has self-help litigation
packets for Section 1983 actions,
tort claims, general state civil
litigation, and small claims actions.
These are available without cost
and can be provided upon an
inmate’s written request. Unfortunately, given our limited staff and
resources, our office cannot provide litigation support to inmates
who are proceeding with legal
claims on their own. This means
that we cannot provide copies of
cases or statutes, copying service
for documents, legal research,
filing, or similar clerical services.
In some situations, particularly
where an inmate will be released
before his or her statute of limitations expires, it may be advisable
to wait until after release before
filing a claim. Of course, a former
inmate, like any other citizen, can
try to obtain services from a private attorney. However, it is an
unfortunate fact that many private
attorneys are reluctant to take cases
from current or even former prisoners.

One factor that often causes a
private attorney to reject a particuA court has the power to change the lar claim is the cost of litigating
venue of a case if it is later discov- a claim amount when compared
with the potential recovery. An
ered that venue is not appropriate
in that county, or if the convenience attorney’s greatest expense in any
case is his or her time. Any civil
of the witnesses and interests of
39
case can take months, or even years
justice would be served.
to resolve, and an attorney could
spend dozens or hundreds of hours
Section 1983 claims can be filed
on a single case. The hours that
in state courts, as well as federal
are spent on one case are hours
courts. However, despite the

Page 7

that cannot be spent on another
case. Therefore, private attorneys
are likely to focus on cases that are
most likely to result in a substantial award or settlement in order to
justify their time. In most cases,
the factor that drives the size of an
award is the degree of injury suffered by the plaintiff. Therefore,
for example, even if your claim
meets the legal elements of negligence it may be difficult to secure
attorney representation unless you
suffered permanent or significant
injuries. Unfortunately, this is not
a situation that is unique to former
prisoners. Many persons of limited
means often face the same problems in securing representation for
their claims.
However, even if the inmate tries
to litigate the case pro se, there
are advantages to doing so after
release. First, the former inmate
will hopefully have a more stable
address, instead of possibly being
moved around the state to different prison camps. This will help
him or her keep in contact with the
court, so as not to miss deadlines.
Former inmates can also access a
large range of legal information
services. These include information available from public libraries,
as well as the internet. In addition,
former inmates can obtain copies,
file documents on their own, and
take care of many routine functions
that are part of litigating any civil
case.
Conclusion
NCPLS receives many letters from
inmates asking for “civil” forms.
We hope that this article will help
state prisoners determine precisely
what type of case they may have,
and the appropriate forms that are
needed. Of course, our office will
still review inmate letters raising
complaints about prison conditions to determine whether the facts
(Continued on Page 8)

NCPLS ACCESS

Page 8

Volume IX, Issue 2, August 2009

An Introduction to Civil Claims

(Continued from Page 7)

alleged state a claim with which
NCPLS can provide attorney representation.
(Endnotes)
1
There are also some types of
actions, primarily in the area of
administrative law and concerned
with regulations enacted and
enforced by government agencies,
that can share some characteristics
of both criminal and civil law.
However, inmates are rarely
involved in these types of actions
so they will not be addressed in this
article.
2
Kelly v. Duke University, 190
N.C.App. 733, 739, 661 S.E.2d
745, 748 (2008).
3
American Mfrs. Mut. Ins. Co.
v. Sullivan, 526 U.S. 40, 119 S.
Ct. 977, 985, 143 L. Ed. 2d 130
(1999).
4
West v. Atkins, 487 U.S. 42,
48-49, 108 S.Ct. 2250, 2255, 101
L.Ed.2d 40 (1988).
5
Id., at 49, 108 S.Ct. at
2255(quoting United States v.
Classic, 313 U.S. 299, 326, 61
S.Ct. 1031, 1043, 85 L.Ed. 1368
(1941).
6
See Helling v. McKinney, 509
U.S. 25, 31, 113 S.Ct. 2475, 125

(Continued)

L.Ed.2d 22 (1993)(the Eighth
Amendment extends to ‘the
treatment a prisoner receives in
prison and the conditions under
which he is confined).
7
Wilson v. Seiter, 501 U.S. 294,
298, 111 S.Ct. 2321, 115 L.Ed.2d
271 (1991).
8
Johnson v. Lewis 217 F.3d 726,
731 -732 (9th Cir. 2000).
9
Shakka v. Smith , 71 F.3d 162,
166 (4th Cir. 1995)(emphasis
added).
10
Wilson v. Seiter, 501 U.S. at 298299, 111 S. Ct. at 2324-25.
11
Id.
12
Farmer v. Brennan, 511 U.S.
825, 837, 128 L. Ed. 2d 811, 114 S.
Ct. 1970 (1994)
13
Hudson v. McMillian, 503 U.S.
1, 6, 112 S.Ct. 995, 998, 117
L.Ed.2d 156, (1992).
14
28 U.S.C. § 1915(b)
15
28 U.S.C. § 1915(e)(2).
16
28 U.S.C. § 1915(g).
17
42 U.S.C. § 1997e(a).
18
42 U.S.C. § 1997e(e).
19
18 U.S.C. § 3626.
20
Id. §3626(a)(1).
21
Id.
22
N.C.Gen. Stat. § 143-291
23
Hunt By and Through Hasty v.
North Carolina Dept. of Labor,
348 N.C. 192, 195, 499 S.E.2d
747, 749 (N.C.,1998).

143-299.2
Parrish ex rel. Lee v. Cleveland,
372 F.3d 294, 302 (4th Cir. 2004)
26
Id.
27
See Martishius v. Carolco Studios, Inc., 355 N.C. 465, 473 ; 562
S.E.2d 887, 892 (2002)(negligence
occurs where a defendant of ordinary prudence would have foreseen
that the plaintiff’s injury was probable under the circumstances).
28
See N.C. Gen. Stat. §90-21.12
29
N.C. Gen. Stat. § 7A-240
30
N.C. Gen. Stat. §7A-243.
31
N.C. Gen. Stat. § 7A-210.
32
N.C. Gen. Stat. § 7A-245.
33
N.C. Gen. Stat. § 1-52,
34
Section 1983 does not have its
own statute of limitations but takes
the limitations period of the most
analogous state statute of limitation. National Advertising Co. v.
City of Raleigh, 947 F.2d 1158 (4th
Cir. 1991), cert. denied 504 U.S.
931 (1992).
35
N.C. Gen. Stat. § 1-17.
36
N.C. Gen. Stat. § 1-76.
37
N.C. Gen. Stat. § 1-77.
38
N.C. Gen. Stat. §1-82
39
N.C. Gen. Stat. § 1-83.
40
28 U.S.C. §1441 provides that
any civil action commenced in state
court can be removed to a federal
court where the federal district
court would have had original
jurisdiction of the claim.
24
25

Prisoner Participation in Medical Research and Clinical Trials
NCPLS receives letters from
inmates who have heard about
potential treatments for various
illnesses and who want to know if
they can participate in drug trials
or receive experimental treatment.
The answer to this can be complex,
and policies governing inmate participation in medical trials must be
viewed from a historical perspective.
After World War II, it was discovered that Nazi physicians
performed unethical medical procedures and research on Holocaust

By Angela G. Smiegel, R.N.
victims who had been confined in
concentration camps. In response
to those abuses, the “Nuremberg
Code” was developed as the first
major international document
that addressed moral and ethical treatment of human volunteer
participants for medical research
purposes. It requires that consent
must be voluntary and free of any
type of coercion. The volunteer
participants must be able to fully
understand the risks and possible benefits. The risks must be
minimal and possible benefits must
outweigh the risks. The volunteer

must be able to withdraw at any
time from the study.
Prior to 1974, it is estimated that
90% of the drug trials in the United
States were performed using
inmates. From the 1950’s to 1970
multiple instances of abuse were
reported around the United States,
and a number of inmate lawsuits
alleged abuse during clinical trials.
The history of inmate research
confirms inmates involved in clinical trials suffered more abuse than
(Continued on Page 9)

Volume IX, Issue 2, August 2009

NCPLS ACCESS

Prisoner Participation in Medical Research and Clinical Trials

(Continued from Page 8)

benefits. There were no mandatory
regulations present for monitoring
of possible abuse, which would
help prevent rampant abuse in the
penal system. The push for prison
experiments were more motivated
by business profits, exploitation,
and expediency and accessibility of
a large population that was expendable. Among other incidents,
prisoners were exposed to cancer
causing agents, given venereal
diseases without treatment, and
exposed to radioactive chemicals
and other contaminants without
their knowledge.
Once prison abuses were exposed,
the Food, Drug Association (FDA),
Department of Health and Human
Services, Institute of Medicine and
other federal agencies joined
together to produce ethical guidelines and federal regulations concerning the use of human subjects
in research. Special attention was
given to a category that pertained
to the rights of prison inmates.
The research companies then
had federal guidelines they had
to follow in order to use human
subjects called the “common rule.”
The regulations are many and very
restrictive. The protective guidelines offered increased safety in
clinical trials. The rules pertain to
federally funded research and must
be followed with additional protective restrictions for special groups
such as the mentally ill, prisoners,
elderly and children.
Within the last several years, many
federal agencies and research
companies have discussed the
possibility of loosening restriction of federal guidelines in utilizing inmates for research. There
are many ethical, moral and legal
obligations to consider and answer
before changing the current system,
so that abuses that happened previously do not occur again in this
country. No matter what safe-

(Continued)
guards are put in place, there can
be no such thing as totally harmless
research. More inmates residing
in prison have HIV, tuberculosis,
Hepatitis C and cancer in an overall
population, than in any other recognized community group. Some
researchers believe that inmates, as
a whole, would benefit and should
be permitted to subject themselves
to greater risks than the federal
government currently allows.
Currently there are only four (4)
categories of research inmates are
allowed to participate in according to federal guidelines. 45 CFR
46.306(a)(2). They are as follows:
study of criminal behavior, study of
institutionalized incarcerated individuals, medical research affecting
prisoners as a class after multiple
penal experts have been consulted,
federal approval and publication
in the Federal Register and lastly,
research which has the intent of
improving the well-being of the
subject. The research must prove
minimal risk to the inmate and
nothing more than inconvenience
to the subjects involved, comply
with all federal guidelines, provide
for confidentiality, pass review by
the Institutional Review Board,
Office of Human Research Protection and Human Health Services.
Further recommendations state that
the inmate should only be involved
in the later stages of a drug study
or trial, the study should consist
of a mix of inmate ages, race and
gender. Half (50%) of the participants should consist of population
from the outside community. Also
an inmate should not serve as a
subject to research involving placebo medication since it does not
benefit the health and welfare of
the inmate. This automatically disqualifies inmates from most drug
studies. (A placebo is a non-active
substance that is given to some
percentage of trial participants
without their knowledge. The purpose of a placebo is to determine

Page 9

whether any subsequent effects are
the result of the drug being tested,
or are caused by the person simply
convincing himself that the drug
is working. Changes that occur
without administration of the test
drug are referred to as a “placebo
effect.”)
The North Carolina Department
of Corrections has a Medical
research policy that is enforced
by the “Human Subjects Review
Committee.” It is set up to follow
the “Protection of Human Services
State and Federal Guidelines.”
While the policy is far too lengthy
to set out here, some important
points are as follows. First, the
researcher must certify that the
value of the research must outweigh the cost and disruption to the
DOC. The research must pose only
minimal or no risk to the inmate
and cause nothing more than slight
inconvenience to the inmate. State
and Federal mandatory regulations
must be strictly followed. Should
you have any questions concerning
your North Carolina Inmate Rights
to participate in any research activity, you must contact the committee
in Raleigh for further clarification
and permission.
Other issues raised concern the
payment of inmates for research.
Many researchers pay individuals
up to $1500.00 dollars for a study.
Should an inmate be allowed the
same amount or get paid what the
DOC currently pay per day as a
wage allowance? If they were paid
more, would this be considered
voluntary coercion? If the inmate
were paid more, would this make
him/her a target for further abuse
by staff or inmates? Should the
funds be dispersed to victims or
family members? No one seems to
agree what would be fair and equal.
Should an inmate suffer permanent
harm- who would be responsible
(Continued on Page 10)

NCPLS ACCESS

Page 10

Volume IX, Issue 2, August 2009

Prisoner Participation in Medical Research and Clinical Trials

(Continued from Page 9)

for the medical care of the inmate
for the remainder of life? If the
inmate is released to home is it fair
to impose the care and disabilities
of the inmate on his/her family
and community due to a clinical
trial gone awry? Unfortunately no
one expects the worse but it does
happen without notice or intent.
An example is the removal of
Bextra and Vioxx from the market
after it caused irreparable harm.
No one every believed the damage
an inflammatory drug could cause.
People claimed to suffer from heart
attacks, strokes and a fatal skin
allergy, months after it became
available on the market. Many
side effects of drugs are not immediately known. Several diet drugs
removed from the market were not
known to be the cause of death
until they had been marketed for
over a year. Can any drug company promise or guarantee minimal
risk?
There is also a cost factor involved.
Who pays for the transportation to
and from the research sites or facilities? Who pays for the guard’s
salary? What about overtime for

(Continued)
staff that may be involved in transportation or assessments of medical condition? Should the inmate
become ill, who pays for his care
even if it is short term? If hospitalization is needed, who should
be responsible for the medical
bills? What if it can not be determined conclusively that the illness
may or may not be related to the
research or drug? Who should then
pay for the litigation that may or
may not be involved? Who would
be responsible for long term care
should the inmate be released? Is
it fair to utilize two officers for
inmate transportation for research,
leaving post assignments, and
thereby causing less safety and
security at the prison facility? Is
every camp properly equipped to
handle any medical emergency that
may arise? How close are you to a
facility that can treat emergencies
related to potential complications?
Can the researcher guarantee you
that all DOC medical staff will be
trained in knowing what adverse
signs may exist and what to look
for? Will they all be aware you are
in a research study? How available
is the research staff in the event of
an adverse reaction? These are just

some of the issues that need to be
responsibly addressed.
In conclusion, volunteering for
research studies, especially those
involving medical research may not
be as promising as the researchers
hope for or disclose. Marketing
is an art. It is designed to make a
bill of goods more attractive than
what may actually exist. “Buyer
Beware” and “if it’s too good to be
true it must be” are slogans to keep
in your mind when considering
becoming a research subject. Incarcerated or not, you must ask questions and demand full disclosure.
Once you are incarcerated, you
become the responsibility of the
Department of Corrections. The
DOC is in charge of your safety
and security. They have the
responsibility to over see conditions to make sure inmates are
not taken advantage of by greed
or profit. While there is no way
to guarantee a person’s health or
safety, the added safeguards surrounding clinical trial participation
are in place to prevent history from
repeating itself and to insure that
previous abuses do not occur here.

Frequently Asked Questions

1. Is North Carolina bringing back
the “65% Law?”
For years many inmates
have heard that North
Carolina was abandoning
the Structured Sentencing
Law (also referred to as
the 85% law because an
inmate’s minimum sentence is roughly 85% of the
corresponding maximum
sentence) and returning to
the former Fair Sentencing Act. While there have
been legislatively approved
studies to look at some of
the disparities between the
two sets of sentencing laws,

there has been no legislation enacted or proposed
that would return to the
FSA or require mass resentencing of inmates under
either law.
2. I am in a prison far away from
my family and it is a hardship for
them to visit me. Can NCPLS help
me get a transfer?
Unfortunately, prisoners do
not have a legal right to be
assigned to any particular
prison. The courts have
given state prison systems
broad discretion in terms of
where they house inmates.

Therefore, there is no legal
claim based on the DOC’s
decision to house an inmate
at one unit, or failing to
move him to another unit.
An inmate can request a
transfer, usually through his
case manager. However,
the ability of an inmate to
transfer requires that there
be a prison that matches the
inmate’s custody level and
that there is open bedspace
at that unit. Even if a transfer is approved, it may take
some time before it actually
occurs, particularly if there
are other inmates whose

(Continued on Page 11)

Volume IX, Issue 2, August 2009

NCPLS ACCESS

(Continued from Page 10)

were injured on your job
due to the negligence of
your employer, or another
inmate.

Frequently Asked Questions

transfer requests were
earlier.
3. I was injured on my job and I
want to file a lawsuit. What are my
options?
The answer here depends
upon whether your job
was a prison work assignment (such as maintenance,
road squad, kitchen, etc.)
or whether you were out
on a work release job for
a private employer. The
North Carolina Supreme
Court has held that the only
remedy for a prisoner who
has been injured on a prison
job is a workers’ compensation claim. Furthermore,
such a claim can only be
filed within 12 months after
your discharge from the
DOC, and then only if you
are still disabled from your
work-related injury after
your release from custody.
Richardson v. North Carolina Dept. of Correction,
345 N.C. 128, 478 S.E.2d
501 (1996). This means
that you cannot file a tort
claim alleging that you

(Continued)

If, however, you were
injured on a work-release
job, you can file a worker’s
compensation claim now.
NCPLS has self-help
packets for such claims
which we can send to you
at no cost upon your written
request.
4. How can I get my “motion of
/for discovery?”
Inmates seeking copies of a
“motion for discovery” are
generally asking about the
discovery that was obtained
in their criminal case. The
discovery available to
criminal defendants is much
more limited than the discovery available to parties
in civil cases. However,
there are some types of evidence that the prosecution
is constitutionally obligated
to turn over to the defense.
This would include any
evidence that is in the possession of the prosecution
that would tend to show

Page 11

the defendant’s innocence
of committing the crime.
Brady v. Maryland, 373
U.S. 83, 83 S. Ct. 1194, 10
L. Ed. 2d 215 (1963).
Neither NCPLS, nor the
Clerk of Superior Court,
have copies of the discovery that was provided in
your case. The attorney
who represented you may
have obtained discovery
materials from the state in
the course of handling your
case, and these materials
may still be in his or her
files. Many district attorneys have an “open file”
policy, which means that
your attorney may have
received discovery materials without having had to
file a formal motion for
discovery. If there was no
“open file” policy in your
case, your attorney might
have filed a motion for
discovery depending on the
circumstances of your case.
If you have not previously
done so, you should write
your attorney and ask for a
copy of your file.

New Edition of Prisoner’s Self Help Litigation Manual to be Published
As many readers of Access know,
the Prisoners’ Self-Help Litigation
Manual 3d. ed., by John Boston
and Daniel E. Manville has been
a valuable tool for prisoners who
wish to pursue their own legal
claims, or to gain a greater knowledge of prisoner rights. The third
edition of the manual, formerly
published by Oceana Press, came
out in the mid 1990s. There have,
of course, been many developments
in prisoner law since that time.
NCPLS has learned that Oxford
University Press will be publish-

ing a fourth edition of the manual,
which is currently expected to
come out this fall. (This publication date is, of course, subject to
change.) The list price is $35.00,
with a $5.50 shipping fee for
domestic orders. This 1500 page
volume will discuss a broad range
of legal areas dealing with prisoner
rights, including: civil liberties in
prison (conditions and practices,
property, medical care, freedom of
expression, privacy, religion, access
to the courts, and more), procedural
due process, equal protection of
the laws, the court system, actions,

defenses, and relief, how to litigate,
legal research, and writing legal
documents.
The sales office address for Oxford
University Press is:
Oxford University Press
198 Madison Avenue
New York, NY 10016 U.S.A.
We advise prisoners not to try
ordering the book in advance, in
the event that you may be transferred to a different unit between
now and the final publication date.

Page 12

NCPLS ACCESS

Volume IX, Issue 2, August 2009

Admissibility of Testimony of Planted Police Informant
By Hoang Lam, NCPLS Staff Attorney

The Court observed that “whether
otherwise excluded evidence
can be admitted for purposes of
impeachment depends upon the
nature of the constitutional guarantee that is violated. Sometimes that
The Supreme Court recognized
explicitly mandates exclusion from
that the Sixth Amendment right to
counsel extends to various “critical trial, and sometimes it does not.”
In assessing whether the evidence
stages” of a criminal prosecution,
must be totally excluded the Court
including “the deliberate elicitaconducted a balancing test. The
tion by law enforcement officers
Court observed that the admissibil(and their agents) of statements
pertaining to the charge.” Kansas v. ity of a defendant’s prior contradictory statements were necessary to
Ventris, 129 S. Ct. at 1845, (quotprotect the integrity of the trial proing Massiah v. United States, 377
cess by preventing potential perU.S. 201, 206, 84 S.Ct. 1199, 12
jury. On the other hand, the Ventris
L.Ed.2d 246 (1964)). However,
while the State agreed that this tes- Court found that any additional
timony could not be admitted in the deterrent effect on law enforcement
by excluding such informant tesprosecution’s case to prove Ventimony would be minimal. Under
tris’s guilt, the question remained
these circumstances, the testimony
as to whether it could be admitted
for impeachment purposes to coun- was admissible for the purposes
ter Ventris’s false statements on the of impeachment, even in light of a
constitutional violaton.
witness stand.

In Kansas v. Ventris, ___ U.S.
____129 S. Ct. 1841, 173 L.Ed.2d
801 (2009), defendant Ventris and
a codefendant were charged with
murder and other crimes. Before
trial, an informant planted in
Ventris’s cell heard him admit to
shooting and robbing the victim.
At trial, Ventris testified that his
codefendant was solely responsible
for the crimes, and the State was
called the informant to testify to
Ventris’s contradictory statements.
Even though the State conceded
at trial that there had “probably”
been a violation of Ventris’s Sixth
Amendment right to counsel, it
argued that the informant’s testimony should come in for impeachment purposes. The trial court
agreed and allowed the testimony.
The jury subsequently convicted
Ventris of aggravated burglary and
aggravated robbery. The Kansas
Supreme Court reversed, holding
that the statements were not admis-

sible for any purpose, including
impeachment. In a 7-2 opinion,
the U.S. Supreme Court reversed
the Kansas Supreme Court.

NCPLS receives many letters from
inmates asking about the status
of various bills before the North
Carolina legislation that they have
heard about. Many inmates have
heard rumors about bills that will
alter sentencing, habitual felon
status, the classification of crimes,
or other matters related to the
criminal justice system. Unfortunately, NCPLS does not have
the staff to personally respond to
these types of individual requests.
As of the date of this article over
400 new session laws had been
enacted, and over 2500 bills had
been introduced in the 2009 session
of the General Assembly. We have,
however, reviewed the bills that
have been introduced in the 20092010 session looking for those
that may be of particular interest
to incarcerated persons and have
listed them below. Some bills are
self-explanatory by their title while
others require a brief summary to

explain their relevant provisions.

Report on New and Pending Legislation in North Carolina
In reviewing the list provided, it
is important to know the following information about how a bill
becomes a law:
1. A piece of legislation,
called a “bill,” can be introduced in either house of
the General Assembly (the
House of Representatives
or Senate).
2. A bill can go through three
“readings” in the house
where it started. The first
reading is when the bill
is first introduced onto
the floor. The bill can be
debated on the floor at the
time of the readings, and
will be referred to various
committees between both
the first and second, and
second and third, readings.

A bill requires a favorable
vote to advance at each
reading stage after the first
reading.

3. If a bill passes its third
reading in the house where
it started, it must then
“cross-over” to the second
house for consideration.
This means that bills which
start in the House must
move to the Senate, and
vice-versa.
4. Under the rules of both the
House and Senate, there is
a “crossover” deadline set
for each session. Bills that
have not passed at least one
house, and “crossed over”
to the second house generally will not become law
during that session. An
exception to the crossover
(Continued on Page 13)

Volume IX, Issue 2, August 2009

NCPLS ACCESS

Report on New and Pending Legislation in North Carolina

(Continued from Page 12)

deadline applies to those
bills which involve spending money. A bill that
does not make the crossover deadline can also be
considered at a later time if
it is amended to include a
financial component.
5. Once a bill has passed
both houses of the General
Assembly it is considered
enrolled.

(Continued)

Session Laws Passed /
Ratified Bills Awaiting
Signature
As of August 10, 2009

SL 2009-86 Guilty Plea Form revisions.
The Administrative Office
of the Courts is directed to
revise the Transcript of Plea
form used by defendants who

6. The enrolled bill, which
includes all approved
amendments, must next
be signed by the presiding
officers of each house, the
Speaker of the House and
the President Pro Tempore
of the Senate. Once both
officers have signed the bill
it is said to have been ratified.
7. The bill is then presented
to the Governor for her
consideration. The Governor can approve the bill
by either signing it, or by
taking no action which
allows the bill to become
law within ten days. The
Governor may also veto
the bill. If a bill is vetoed,
the General Assembly can
override the veto by a threefifths majority vote of both
houses.
8. A bill that passes through
all of these steps has
become law and is now
called a Session Law.
9. A session law may affect
the North Carolina General
Statutes by either adding or
amending one or more sections of the General Statutes.

Page 13

S.L. 2009-179 Plea Bargain Disclosure.
Amends G.S. 15A-1023(b) to
provide that If a judge rejects
a plea arrangement disclosed,
in open court, pursuant to
subsection (a) of this section,
then the judge shall order that
the rejection be noted on the
plea transcript and shall order
that the plea transcript with
the notation of the rejection
be made a part of the record.”
S.L. 2009-203 Preservation of
DNA & Biological Evidence.

plead guilty or no contest
to criminal charges. The
changes will more clearly
inform the defendant that by
entering a plea, his or her
appeal rights are limited and
that the plea may also limit
the length of time that DNA
or other biological evidence
may be preserved. Revisions
are to be finished by September 1, 2009 and be available
for use by October 1, 2009.
SL 2009-91 Permit Access to Capital Defendants.
Provides that attorneys for
a defendant sentenced to
death may visit their client on
the date that state or federal
courts rules on the client’s
petition or motion for postconviction relief.

Amends statutes concerning
preservation of biological
evidence and requests for
post-conviction DNA testing.
Requires the SBI to promulgate minimum guidelines for
preservation by 2010. Establishes procedure for court
identification and treatment
of relevant biological evidence and clarifies timelines
for retention.
S.L. 2009-204 Increase Penalty/
Remove Serial Number From Gun.
Both the alteration / removal
of a firearm serial number,
and possession of a weapon
with a removed / altered
serial number are Class H
felonies
S.L. 2009-205 Paraphernalia Control Act.
Amends Chapter 90 of the
General Statutes by adding
Article 5F which regulates
the manner in which glass
tubes and splitters may
be sold by retailers. This
includes requiring that such
(Continued on Page 14)

Page 14

NCPLS ACCESS

Volume IX, Issue 2, August 2009

Report on New and Pending Legislation in North Carolina

(Continued from Page 13)

objects be moved behind a
counter and not available
to the general public; that
persons seeking to purchase
produce identification; and
that purchasers sign a register
with their name and address.
S.L. 2009-270 Videoconference
technology in court proceedings
Authorizes DOC to establish
a pilot program for the use of
videoconference technology
for court proceedings involving inmates instead of transporting inmates for live court
appearances.
S.L. 2009-275 Low Risk Probationers may be unsupervised.
S.L. 2009-336 Amend computer
solicitation of child
Amends GS 14-202.3 by
including solicitation by computers or any other device
capable of electronic data
transmission of children under
16 years of age and at least five
years younger than the defendant, for the purpose of arranging a meeting for an unlawful
sexual act. Act of solicitation
is a Class H felony but if the
defendant shows up at a prearranged meeting site it is a Class
G felony
S.L. 2009-356 Child Witness
Testimony/Procedures
Adds new section to General
Statutes, § 15A-1225.1 providing procedures by which
minor children can offer
testimony in criminal proceedings including by giving
remote testimony if the court
determines (1) that the child
witness would suffer serious
emotional distress, not by the
open forum in general, but by

(Continued)

testifying in the defendant’s
presence, and (2) that the
child’s ability to communicate with the trier of fact
would be impaired.
S.L. 2009-360
Innocence
Commission – Limited Witness
Immunity
The Innocence Commission
may compel the testimony
of a witness. Commission
Chair has the authority to
grant limited witness immunity from prosecution for
false statements made under
oath in prior proceedings.
S.L. 2009-369 Habitual DWI reinstatement
Provides that individuals convicted of habitual
impaired driving may petition for a hearing on restoration of driving privileges
after ten years without any
traffic or other criminal convictions.
S.L. 2009-372 Probation Reform
Provides that probation officers can access an offender’s
juvenile records. Grants
probation officers the power
to conduct warrantless
searches of probationer’s
person, vehicle and premises as a regular condition of
probation. Adds additional
conditions to defendants
sentenced to intermediate
punishment.
S.L. 2009-379 Larceny of Motor
Vehicle Part
Class I felony if repair
costs are $1000.00 or more.

S.L. 2009-380 Permanent No Contact Order for Sex Offenders
Allows a sentencing court
to enter a permanent order
preventing a convicted sex
offender from any future
contact with the crime
victim. Violation of such an
order is a Class A1 misdemeanor. Becomes effective
on December 1, 2009, and
applies to offenses committed on or after that date.
S.L. 2009-412 Delay bond for a
probationer charged with a felony.
Where a probationer is
charged with a felony, the
judicial official considering conditions of pre-trial
release must make a written
determination as to whether
the probationer poses a
danger to the public. If
probationer is found to pose
a danger, release must be
under a secured bond (cash
or mortgage). If there is
insufficient information
on probationer’s potential
danger, probationer may
be held for first appearance
before a judge.
S.L. 2009-452 Supervision of
Certain Defendants.
An act to allow district
courts to supervise certain
defendants convicted in
superior court and who are
assigned to drug courts or
other types of therapeutic
courts
S.L. 2009-463 Clarify Weight /
Measure for Meth Trafficking
Amends the law regarding
trafficking in methamphetamine and amphetamine to
clarify that the charge of
(Continued on Page 15)

Volume IX, Issue 2, August 2009

NCPLS ACCESS

Report on New and Pending Legislation in North Carolina

(Continued from Page 14)

trafficking is based on the
weight of the entire powder
or liquid mixture rather than
the weight of the actual
amount of the controlled
substance in the powder of
liquid mixture.
S461 / H472 Racial Justice Act
(Ratified and presented to Gov.
Perdue August 6, 2009)
An Act to prohibit seeking or imposing the death
penalty on the basis of race
and to establish procedures
by which relevant evidence
can be used to establish that
race was a significant factor
in seeking or imposing the
death penalty. Allows the
use of statistical evidence
by defendants. Act is
effective when it becomes
law and is retroactive to
persons currently sentenced
to death. Persons whose
convictions occurred before
the statute’s effective date
must file their motions
within one year of the effective date.
H209 Sex offender registry /
liberties with students (Ratified and
presented to Gov. Perdue August 6,
2009)
Adds offense of taking
indecent liberties with a
student to list of offenses
requiring registration as sex
offender.
H473 Magistrates can carry guns
in courthouse. (Ratified August 7,
2009)
Allows magistrates who
have obtained concealed
carry permits and undergone approved training, to
carry firearms in courthouse
during the discharge of their

(Continued)

duties.

S167 No smoking / cell phones
on prison grounds. (Ratified and
presented to Gov. Perdue August 6,
2009).
No person may use or possess tobacco products on the
premises of a state correctional
facility. (Exceptions for tobacco
that is locked in a vehicle or
which may be used in an authorized religious ceremony.) Also
prohibits possession of cell
phones on prison grounds, with
the exception of phones locked
in vehicles. Providing a cell
phone or tobacco product to an
inmate, and an inmate’s possession of either item is a Class 1
misdemeanor.
S726 Amend house arrest laws
/ adult offenders. (Ratified and
presented to Gov. Perdue August 6,
2009).
Amends GS § 15A-531 to
allow house arrest with electronic monitoring as a condition
of pre-trial release
S853 Motion for Appropriate
Relief / new requirement. (Ratified and presented to Gov. Perdue
August 5, 2009)
Requires an attorney who
presents a MAR to provide
a written certification that
the motion is made in good
faith and that he or she has
either reviewed the transcript or made other investigation to determine that
reading the transcript is not
necessary. Also provides
for post-conviction discovery for defendants who are
represented by counsel in
post-conviction proceedings.

Page 15

Crossover Bills
H275 Sex offenders cannot be
EMS
H666/S511 Clarify status of
DWI treatment courts as a form of
drug treatment court under NCGS
7A-791
H726 Clarify Expunctions
– Allows expunction of misdemeanor convictions for defendants
who were under 18 at the time
the offense was committed, and
for misdemeanor convictions for
underage possession of alcohol
committed when the defendant was
under 21.
H813 S679 Uniform Apportionment of Tort Responsibility - Eliminates the defense of contributory
negligence by a plaintiff as a complete defense to a defendant’s negligence and implements a system of
comparative fault recovery.
H1307 Possession of prescription
drug not drug trafficking - Creates
House Select Study Commission
on Trafficking of Prescription Medications. Commission will study
the following: (1) What currently
manufactured prescription medications are covered by the drug
trafficking laws of this State; (2)
Whether the current drug quantities
in the trafficking statutes are appropriate quantities when applied to
prescription medications and taking
into consideration the penalties
provided; (3) Whether trafficking
of prescription medications should
be addressed separately from
other drugs; (4) What penalties
are appropriate for the trafficking
of prescription medications; and
on what quantities of prescription
medication should those penalties
be determined.

(Continued on Page 16)

Page 16

NCPLS ACCESS

Volume IX, Issue 2, August 2009

Report on New and Pending Legislation in North Carolina

(Continued from Page 15)

H1317 Sex offender registration
changes - Amends GS 14-208.6.
Adds provision that persons with
reportable convictions must register all residences and mailing
addresses, including any temporary
residences. (A temporary residence
must be reported if the person
occupies it for more than five days
in a 30 day calendar period, or a 30
day period within a calendar year.)
H1329 Consolidate Expunction
Statutes - This bill would gather all
current expunction statutes into a
single article of the General Statutes; change the language of some
statutes to reflect application to the
defendant’s age at the time a crime
was committed, rather than the age
at conviction.
H1447 Crime Stoppers tips are
confidential - Crime stopper tips
are confidential, not considered
public records, and may not be
disclosed during criminal pre-trial
discovery. Information obtained
through these sources may not be
relied upon by a judicial official
in determining the existence of
probable cause for arrest or search
warrants.
S11 District Attorneys and
Assistant DAs who have obtained
concealed carry permits and
weapon retention training may
carry handguns while in courthouses (but not a courtroom itself)
to discharge their official duties.
S388 Collection of offender fines
and fees
- allows Judicial
Department to contract with either
a county or private collection
agency to collect unpaid fines, fees,
costs and restitution from defendants not sentenced to supervised
probation and more than 30 days
past due. Judicial Dept. may also
assess the defendant a collection
assistance fee.

(Continued)

S 488 Establishes proportionate
sentence lengths between Structured Sentencing prior record
levels.
S489 Adjusts the prior record level
points for felons under the Structured Sentencing Act.
S759 Modify DWI checking station requirements - would require
law enforcement agencies conducting traffic checkpoints to have
a written policy establishing the
pattern for such checks.
S794 Sex offender incapacity to
proceed - Provides mechanism for
the civil commitment of a person
charged with a sex offense who is
found to be mentally incompetent
to proceed to trial.
S797 Reasons for judge’s disqualification - Reasons for a judge
or justice’s disqualification shall be
in writing and specify the reasons
for the disqualification.
S928 Establishes the “Castle
Doctrine” in North Carolina - provides immunity from both civil and
criminal prosecution to individuals
who use defensive force (including
deadly force) against individuals
who are unlawfully and forcefully
trying to enter a dwelling or residence.

Bills that Did Not
Cross Over
H4 – provide for a “good faith”
exception to the exclusionary rule
– referred to H Judiciary II in Feb.
H84 – Provides for the denial of
bail to illegal immigrants in certain
circumstances (sex offenses, drug
offenses, driving offenses, violent
offenses, gang offenses, etc.)
H123 – Death Penalty Proportionality Review – Supreme Court
would review death cases in light

of prior cases where the death
penalty was imposed and factually
similar cases in which life imprisonment was imposed.
H129 – Create the crime of Habitual Misdemeanor Larceny – 5 or
more prior misdemeanor larcenies
qualifies person for this Class H
felony charge upon commission of
misdemeanor larceny.
H134 –Makes the offense of
simple assault on a govt officer or
employee a Class I felony instead
of misdemeanor
H137(= S309) – Bans death sentences for defendants who had a
severe mental disability at the time
their offenses were committed.
H162 – Expands the requirement
for electronic recordings of entire
custodial interrogations during
investigations to Class B1, Class
B2, and Class C felonies.
H209 – Adds the offense of taking
indecent liberties with a student to
the list of sex offenses that require
registration under the Sex Offender
and Public Protection Registration
Program.
H527(=S496) – Authorizes a joint
legislative study committee on exoffender reentry.
The study will examine ways to
successfully reintegrate individuals
released from prison into society
and lower recidivism rates.
H784(=S161) Exempts any health
care professional who provides
assistance with a lawful execution from disciplinary or corrective action by any state-authorized
board or authority.
H876(=S796) – Commissions the
Department of Correction to study
ways to reintegrate offenders on
probation into society without com(Continued from Page 9)

Volume IX, Issue 2, August 2009

NCPLS ACCESS

Report on New and Pending Legislation in North Carolina

(Continued from Page 16)

promising public safety
H1064 (=S491) Gives convicted criminals the opportunity
to expunge certain non-violent
convictions upon application and
a fee. However, the crimes must
be disclosed to law enforcement
officials and specified agencies for
employment. Individuals applying
for expunction of their records must
have not been previously convicted
of any felony or misdemeanor other
than a traffic violation at the time of
their felony offense.

(Continued)

the resident superior court judge
in the district where they were
sentenced for a post-sentencing
review. The judge should determine whether the sentence should
be reduced or suspended based on
the offender’s conduct and record
of rehabilitation in prison.
H1259 Creates a civil penalty
of drivers license revocation for
a person charged with death by
motor vehicle. In all cases of death
by motor vehicle, a toxicology
report and mandatory trauma counseling would be required.

H1092 (=S1046) Establishes a 20member committee to study sentencing and prison overcrowding.

H1276 Makes discharging a firearm at a law enforcement officer
a Class D felony with a minimum
active sentence of 10 years.

H1117 Instructs the Division of
Motor Vehicles not to issue or
renew commercial drivers licenses
that allow sex offenders to drive
commercial passenger vehicles or a
school buses.

H1307 Establishes the House
Select Study Commission on Trafficking of Prescription Medications, which would consist of 11
members.

H1158 Increases the felony class for
the offense of continuing criminal
enterprise from a Class H felony to
a Class C felony.
H1203 Creates a separate statutory
sub-section for felony murder and
makes the punishment imprisonment for life without parole unless
the crime is covered in a separate
provision that requires a greater
punishment.
H1212 Imposes a $100 fee on
anyone who drops criminal charges
or refuses to cooperate with the
prosecution after causing the issuance of a criminal warrant or
summons. H 04/08/2009 Ref to the
Com on Judiciary III, if favorable,
Finance
H1242 Permits youthful offenders who are incarcerated and have
served at least 84 months of a sentence for the conviction of a Class
B1, B2, C, or D felony to petition

H1317 Mandates that persons
required to register under the Sex
Offender and Public Protection
Registration Porgrams must also
report in person to and notify the
appropriate sheriff of the address
of any temporary residences maintained by the registrant. The bill
would add to the list of properties
that are off-limits to sex offenders at all times or under certain
circumstances. Out of state sex
offenders must adhere to the same
restrictions.
H1318 Provides for a new felony
death by motor vehicle charge
when the death is the result of the
operation of a commercial motor
vehicle by an owner-operator who
knew the commercial vehicle was
unsafe for operation.
H1326 Categorizes a felony
murder conviction as murder in
the second degree and a class
B1 felony. The bill also amends
the aggravating circumstances to

Page 17

be considered for murders and
changes the criteria for determining whether a case is a capital
case.
H1332 Makes it a Class C felony
to kill someone with a deadly
weapon while engaged in an
affray. Anyone engaged in an
affray who causes serious bodily
injury to another is guilty of a
Class E felony.
H1334 Creates the criminal
offense of home invasion. If the
crime is committed at night, the
crime will be punished as a Class
C felony.
H1360 Changes the habitual felon
law by redefining habitual felon as
a person who has been convicted
of three prior felony offenses that
were Class G or higher and modifies the sentence imposed on a
person convicted as a habitual
felon to be one felony class higher
than the underlying felony for
which the person is convicted. The
post-release supervision and parole
commission would be authorized
to study the feasibility of reducing
the sentence for certain habitual
felons currently in prison.
H1362 Expands the situations in
which a judge may impose a lesser
prison term than the applicable
minimum term or suspend the
prison term and place a person on
probation when such a person has
been convicted of a drug trafficking offense.
H1396 Grants superior courts the
power to calendar cases in superior
court. Currently, the law authorizes
district attorneys, rather than superior courts, to calendar cases.
H1401 Increases the penalty for
misdemeanor death by motor vehicle from a Class 1 misdemeanor to
a Class A1 misdemeanor.
(Continued on Page 18)

Page 18

NCPLS ACCESS

Volume IX, Issue 2, August 2009

Report on New and Pending Legislation in North Carolina

(Continued from Page 17)

H1403 Requires that a DNA
sample be taken from any person
arrested on suspicion of committing a felony. The Missing Persons
DNA Identification System would
become part of North Carolina’s
current DNA database and DNA
databank.
H1406 Creates the crime of terrorism and makes it a Class B1 felony
if the base offense is a Class B1 or
Class A felony. The bill defines terrorism as, “An act of violence committed with the intent to intimidate
the civilian population at large or to
influence, through intimidation, the
conduct or activities of the government of the United States, a state, a
county, or a city.”
H1416 Instructs the Legislative
Study Commission on Children and
Youth to research issues related to
children of incarcerated parents.
H1432 Permits certified independent companies regulated by the
Federal Fair Credit Reporting Act
to perform criminal history checks
of child care providers.
H1456 Makes the ownership
of dogs weighing more than 14
pounds illegal as a special condition of probation for a person
convicted of a felony drug offense
and sentenced to community or
intermediate punishment.
H1477 Provides for payment to
translators and interpreters for
services offered to parties and witnesses who do not speak English.
H1479 Requires that before a
defendant can be tried capitally,
the prosecution must present the
following evidence at a pre-trial
conference: “(1) Biological evidence or DNA evidence that links
the defendant to the act of murder.
(2) A videotaped, voluntary inter-

(Continued)

rogation and confession of the
defendant to the murder. (3) A
video recording that conclusively
links the defendant to the murder.”
H1489 Requires anyone convicted
of driving while impaired, driving
after consuming alcohol being less
than twenty-one years of age, or
any other impaired driving offense,
or any person who refuses a chemical analysis, to have an ignition
interlock system installed on all of
their vehicles before that person
can get a limited driving privilege.
H1531 Orders the Clerk of Court
to deny a name change application from a convicted felon who
is serving an active sentence in a
correctional facility for the felony
conviction.
H1607 (= S490) Adjust B1-E Felony
Penalties. Reallocates three months
from the minimum sentence of
felony Classes B1 through E to the
maximum sentence and increases
the period of post-release supervision from nine months to twelve
months
H1612 Allocates $4 million over
the next two fiscal years to services
for existing pre-plea and post-plea
mental health courts, DWI courts,
and adult and family drug treatment courts for adult offenders.
S13 (=H1503) Makes injury to a
pregnant woman past her twentieth week of pregnancy during the
commission of a felony a separate
offense one class higher than the
offense committed if the defendant
has knowledge of the pregnancy
and the injury results in a miscarriage or stillbirth. The bill includes
as an aggravating factor in felony
cases that the victim was pregnant.
S26 Unlike the bill above, this bill
would make such an injury a separate offense one class higher than
the felony committed regardless
of how many weeks the victim has

been pregnant.
S32 Commands all North Carolina employers to use the federal
E-Verify Program or a similar
verification of work authorization
program when hiring new employees.
S46 Creates civil and criminal
penalties for communicating libelous or slanderous material over an
electronic medium.
S74 Increases the penalty for
second degree murder from a Class
B2 felony to a Class B1 felony.
S94 Makes it a felony to assault or
otherwise endanger a probation or
parole officer.
S131 Requires anyone convicted
of driving while impaired to be
imprisoned for at least 24 hours in
a confinement facility.
S140 Makes it a felony for a person
who is the subject of a valid protective order to trespass on property
where the protected party resides
and that is operated as a safe
house or haven for domestic violence victims without regard as to
whether the person covered by the
protective order is present on the
premises
S153 Obligates the Division
of Motor Vehicles to notify an
employer of any convictions affecting the status of a commercial drivers license by an employee.
S158 Raises the penalty for felony
death by vehicle from a Class E
felony to a Class D felony and
raises the penalty for felony serious
injury by vehicle from a Class F
felony to a Class E felony.
S262 Clarifies that an order to
expunge an individual’s record
must be forwarded by the clerk of
(Continued on Page 19)

Volume IX, Issue 2, August 2009

NCPLS ACCESS

Report on New and Pending Legislation in North Carolina

(Continued from Page 18)

court to all applicable state and local
government agencies. According to
the bill, those agencies must forward
notice of such expunction orders to
any private entity that disseminates
criminal history records for compensation that is licensed by the agency
to access the agency’s criminal history record database.
S351 Provides for a constitutional
amendment that bars a convicted
felon from being elected sheriff.
S431 Classifies robbery with an
apparent firearm as a Class D felony.
The term “apparent firearm” is
defined by the bill as “any article
that a reasonable person would
believe to be a firearm.”
S449 Creates harsher penalties and
new categories for obtaining property by false pretenses. For example,
the bill would punish someone who
obtains $85,000 worth of property
by false pretenses as a Class D felon
rather than a Class H felon.
S527 Amends the criminal offenses
of second degree rape and second
degree sexual offense to make it
illegal for a person in a position of
authority to engage in a sex offense
with a victim who is unduly influenced by the person in a position of
authority.
S597 Grants trial judges in criminal cases the sole discretion to
determine whether jurors may take
exhibits introduced into evidence in
the jury room. According to the bill,
the consent of all parties would not
be necessary.
S659 Provides for a procedure for
determining when a judge should be
disqualified from a case. A denial of
a motion to disqualify a judge would
not be immediately appealable and
is only reviewable by the appellate
division on appeal from a final judgment.

(Continued)

S680 Raises penalties for drug trafficking by one class level of felony.
S709 Creates the criminal offense
of home improvement fraud. Home
improvement fraud is committed when the following actions
are perpetrated: (1) The use by
a contractor of any false pretense
whatsoever, whether the false
pretense is of a past or subsisting
fact or of a future fulfillment or
event, with the intent to cause any
other person to enter into a home
improvement contract. (2) The
damaging of any property of any
person by a contractor with the
intent to induce that person to enter
into a home improvement contract.
S710 Increases penalties for the
offense of obtaining property by
false pretenses when the money
or property obtained is valued
between $5,000 and $100,000.
S759 Requires law enforcement
agencies to designate patterns in
writing for stopping vehicles at
checking stations.
S788 Allows expunction of records
for first offenders who are under 18
years of age at the time of the commission of a non-violent felony.
However, according to the bill, a
non-violent felony does not include
Class A through Class G felonies.
S789 Prohibits a person from being
licensed as a bail bondsman if the
person is convicted of a misdemeanor drug violation.
S794 Provides for the civil commitment of certain sex offenders
who lack the capacity to proceed to
trial.
S852 Determines that a positive
result for an alcohol screening
test is .08 or higher on an alcohol
screening device and a negative
result is any result that registers
lower than .08 on an alcohol

Page 19

screening device.
S1036 Makes the criminal offense
of simple assault a felony rather
than a misdemeanor when the
simple assault is committed
against a law enforcement officer, a firefighter, or emergency
personnel. Also, the bill would
increase the penalty for assault
against certain emergency personnel if the assault is with a deadly
weapon or inflicts serious bodily
injury.
S1045 Expands the situations
in which a judge may impose a
lesser prison term than the applicable minimum term or suspend
the prison term and place a person
on probation when such a person
has been convicted of a drug trafficking offense.
S1048 Defines a “delinquent juvenile” as a juvenile who is between
six years of age and eighteen
years of age who commits a crime
or infraction. In addition, the bill
establishes a 17-member Task
Force for Juvenile Justice Administration.
S1087 Permits the use of continuous alcohol monitoring systems as
a condition of probation.

THE NEWSLETTER OF NORTH CAROLINA
PRISONER LEGAL SERVICES, INC.
1110 Wake Forest Road
P.O. Box 25397
Raleigh, NC 27611
Phone: (919) 856-2200
Fax: (919) 856-2223
Email: ncpls@ncpls.org

Visit our website at:
http://www.ncpls.org