Petition for Writ of Certiorari — Christopher, In re (No. 08-835)
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\Y\ | 08-835 SEP 24708
October 1, 2008 Term NOFFICE OF THE CLERK
In The
Supreme Court
of the Gnited States of America
In re
J. KAMAU CHRISTOPHER a/k/a
JOSEPH KAMAU CHRISTOPHER BEY,
Petitioner,
v.
NORTH CAROLINA STATE UNIVERSITY, ET AL.,
Respondent.
ON PETITION FOR A WRIT OF MANDAMUS, WRIT OF
PROHIBITION, AND A MANDANTORY INJUNTION
TO THE SUPREME COURT OF NORTH CAROLINA,
GENERAL COURT OF JUSTICE OF NORTH CAROLINA
EMERGENCY
PETITION FOR WRIT OF MANDAMUS,
PETITION FOR WRIT OF PROHIBITION, AND
PETITION FOR A MANDATORY INJUNTION
J. CHRISTOPHER BEY
C/O SHARON BEy-CHRISTOPHER,
ESQ., MANAGING ATTORNEY
LEGAL AID OF NORTH CAROLINA
208 Goldsboro Street, East
P.O. Box 2688
Wilson, NC 27894-2688
(252) 360-1982
DECEMBER 19, 2008 Petitioner, Pro Se
THE QUESTIONS PRESENTED FOR REVIEW
Petitioner presents five questions for review
by the Supreme Court of the United States as to
whether the due process and equal protection rights
of Petitioner as guaranteed by the Fourteenth
Amendment of the United States, U.S. Const. Amend
XIV, were violated by the following:
(i) The suspension of discovery and the
hearing of Respondent’s Motion for Summary
Judgment before the close of evidence;
Gi) The failure of the North Carolina
Industrial Commission and the General Court of
Justice of North Carolina to provide relief by
injunction and intervention to prevent Respondent
from destroying evidence’ relevant to _ these
proceedings during the pendency of _ these
proceedings, and the subsequent destruction of
evidence relevant to these proceedings during the
pendency of these proceedings;
Gu) The failure of the North Carolina
Industrial Commission and the General Court of
Justice of North Carolina to adjudicate the objections
of Petitioner as to the genuine issues of material fact
and triable issues of fact as to the time, place,
circumstance and nature of the personal injury of
Petitioner in question presented at the hearing for
Respondent’s Motion for Summary Judgment;
. Fe
Gv) The opinion, decision and dismissal
classifying Petitioner as subject to the exclusive
remedies of the North Carolina Workers’
Compensation Act without validation or certification
that the personal injury of Petitioner qualified for
such remedies; and
(v) The opinion, decision and dismissal
eliminating Petitioner’s common law claim for civil
remedy against his employer, Respondent, pursuant
to the exclusivity provisions of the North Carolina
Workers’ Compensation Act, without adjudicating if
the North Carolina Workers’ Compensation Act
provided an effective administrative remedy.
“iii-
PARTIES TO THIS PROCEEDING
Petitioner in this matter is J. Kamau Christopher
a/k/a Joseph Kamau Christopher Bey, represented
Pro Se.
Respondent Courts in this matter are the Supreme
Court of North Carolina, General Court of Justice of
North Carolina; the Court of Appeals of North
Carolina, General Court of Justice of North Carolina;
and the North Carolina Industrial Commission,
North Carolina Department of Commerce.
Respondent in this matter is the State of North
Carolina; The Government of the State of North
Carolina; Michael F. Easley, In His Official Capacity
as the Governor of the State of Ncerth Carolina,
Principle Executive Officer of the Executive Branch
of the Government of the State of North Carolina;
and other duly authorized officers, agents and
employees of the Government of the State of North
Carolina acting in their official capacity in the scope
of their employment as_ public servants; The
University of North Carolina; Erskine B. Bowles, In
His Official Capacity as President, Principle
Executive Officer of the General Administration of
the University of North Carolina; and other duly
authorized officers, agents and employees of the
University of North Carolina acting in their official
capacity in the scope of their employment as public
servants; North Carohna State University,
constituent institution of the University of North
Carolina; James L. Oblinger, In His Official Capacity
as the Chancellor, Principle Executive Officer of
North Carolina State University; Marye Anne Fox,
In Her Official Capacity as the former Chancellor,
Principle Executive Officer of North Carolina State
University; Charles Leffler, in His Official Capacity
as Vice Chancellor for Finance and Business, Office
of Finance and Business, North Carolina State
University; Kevin J. MacNaughton, in His Official
Capacity as Associate Vice Chancellor for Facilities,
Division of Facilities, Office of Finance and Business,
North Carolina State University; Bruce L.
MacDonald, in His Official Capacity as Health &
Safety Manager, Environmental Health & Safety
Center, North Carolina State University; Thomas H.
Stafford, in His Official Capacity as Vice Chancellor
for Student Affairs, Office of Student Affairs, North
Carolina State University; Timothy Luckadoo, Ph.D.,
in His Official Capacity as Associate Vice Chancellor
for University Housing, University Housing, Office of
Student Affairs, North Carolina State University;
Susan Grant, Director of University Housing,
University Housing, North Carolina State
University; Gary Thompson, in His Official Capacity
as former Assistant Director of Facility Operations,
University Housing, and former Associate Director of
Facility Operations, University Housing, Office of
Student Affairs, North Carolina State University;
Timothy Blair, in His Official Capacity as former
Assistant Director for Avent Ferry Complex and
Wood Hall, East Campus, former Associate Director
of East Campus, current Associate Director of
University Apartments, University Housing, Office
of Student Affairs, North Carolina State University;
and other duly authorized officers, agents and
employees of the North Carolina State University
acting in their official capacity in the scope of their
employment as public servants.
Counsel for the Respondent is Dahr Joseph Tanoury,
Esq., Assistant Attorney General, Tort Claims
Section, Office of the Attorney General of the State of
North Carolina; Elizabeth W. Riley, Esq., Deputy
Legal Counsel, Office of Legal Counsel, Office of the
Governor of the State of North Carohna-Latura
Bernstein Luger, Esq., Vice President and General
Counsel, The University of North Carolina System
General Administration; David T. Drooz, Senior
Associate General Counsel, Office of Legal Affairs,
North Carolina State University.
Note: In the original affidavit of tort claim, which
initiated this action, Respondent was cited as North
Carolina State University, with statutory reference
to negligent acts performed by officers, agents and/or
employees of Respondent in their official capacity as
public servants. See N.C. Gen. Stat. § 143-291 et seq.
Pursuant to the controlling law and _ statutory
authority, the executive authority of Respondent is
exclusively vested in the Governor of the State of
North Carolina and derives from the Constitution of
the State of North Carolina, and controlling law and
legal authority for the public entity of North
Carolina State University designates Respondent as
subject to executive authority and a constituent
institution of the University of North Carolina. See
N.C. Const. art. IX, § 8; N.C. Gen. Stat. § 116-1 et
seq.
ihe
TABLE OF CONTENTS
Section
Questions presented for review ............6..000:
gig Bont Page re
Table of Contents ‘ PEER Oe ens ne eee a
ee FI oicncidnescssicvenvexcanioesssvens
Petition for Writ of Mandamus, Petition for
Writ of Prohibition, Petition for a Mandatory
ETA BELOIT ROPE ETE TE POPES
PATNI GIN aroisas esos scan citedewendscrescesessceves
eres cod gay awiedesar ews
Statutory Provisions Involved see peeewneeoeeeeauane
SS EI ETIEIIS TSE SPEC LEE OPORTO ELMER OSS OTE
PIE OE CO ovo wicccsnisacderensadestccistexesexs
I. Summary of Federal Question ...........
il. Statutory. Back@roune, ...........66s00.000s-
Ilt. Factual Background .............secssecees
il
vl
bo
13
-Vil-
Table of Contents — Continued:
EV PROCOGUPAE TIIBGOTY ....0acesvccesvececovesiess 18
Wy IIE Cot kcccescxdininissstscacpvcivenins 24
Justification for Grant of This Writ ............. 25
I. This relief sought involved alleged due
process violations under the appellate
jurisdiction of this Court, and, appeal
does not provide adequate relief for
‘ said violations, thus urgent and
immediate extraordinary relief is
Oe wie hae taht he aS eed cease 25
II. The Petitioner has presented clear
and convincing evidence that this
matter involves an issue of public
importance and appellate jurisdiction
~ will be impaired without
GRHETHOPOITIOTY TORIGL oo. ccccssceccscccssccness 29
IL].As the Petitioner has exhausted all
administrative remedies and no other
remedy exists, this Court has an
independent jurisdiction to review this
matter on appeal and provide the
extraordinary relief sought herein ...... 3]
oe ENE PIE TE TE OY NEI OES ME 32
-Vill-
INDEX TO APPENDICES
Appendix
Appendix A: Christopher v. N.C. State Univ.,
No. TA-19383, Or. (N.C. Industrial
Commission 9 February 2007) .............0.00088
Appendix B: ChAristopher v. N.C. State Univ.,
No. TA-193883, Or. (N.C. Industrial
Commission 10 August 2007) ..............eeee ees
Appendix C: Christopher v. N.C. State Univ.,
No. P07-907, Or. (N.C. Ct. App. 14 November
EE ike i kededcccdicciccaess eka
Appendix D: Christopher v. N.C. State Uniy.,
No. COA07-1516, slip op. (N.C. Ct. App. 20
PENNE SPD icknccshacviscseecea ee ee
Appendix E: Christopher v. N.C. State Unirv.,
No. 246-P08, Orders (N.C. S. Ct. 4
EOI FIO ick icdice side nccastnisussincgeaes
Appendix F: Christopher v. N.C. State Univ.,
No. COA246-P08, Plaintiff-Appellant’s
Motion for Temporary Stay, Motion to
Amend the Record on Appeal, and Motion to
Expedite this Appeal (N.C. Ct. App. 22
FE, Fe 4nd tasceaeeschsloccitaiee dane
Page
la
Va
14a
16a
23a
26a
-ix-
Index to Appendices — Continued:
Appendix G: North Carolina State
University Facility Profile and Ten-Year
Capital Plan, published by Eva Klein &
Associates, December 1999 (excerpts
EEE SS EE 46a
Appendix H: Administrative Memorandum
prepared by Petitioner, as employee, and
submitted to Respondent, as employer, dated
October 8, 2002 (redacted as appropriate) .... 52a
Appendix I]: Letter from Respondent to
Petitioner of January 23, 2004 .................... 55a
Appendix J: Letter from Respondent to
Peumumoner Of dune 23, ZOOS .........ccccccccccccees 57a
Appendix K: Letter from Respondent to
Petitioner of July 24, 2008 ...............ccceeeeees 67a
Appendix L: Letters from Respondent to
Petitioner of August 15, 2008 and August 18,
Teen sc endbveiversedvesevecces 72a
Appendix M: Letters from Respondent to
Petitioner of September 2, 2008 and
DS a ee 76a
Index to Appendices — Continued:
Appendix N: Letters from Respondent to
Petitioner of September 24, 2008 and
IS Bi: SITE ried osnd en snbcdnekeysccnessatads 78a
Final Page of the Appendix N is on page 88a
TABLE OF CITED AUTHORITIES
Cases: Page
Application of President & Directors of
Georgetown College, Inc., 331 F.2d 1000
(App. Dis. Col. 1964), reh. den., 331 F.2d
1010 (App. Dis. Col. 1964), cert. den., 377
U.S. 978, 12 L. Ed. 2d 746, 84S. Ct. 1883
CEU caccanes nebakesnibansbekecsansebibiabieeaidabncs 8
Aref v. United States, 452 F3d 202 (2nd
Ce ED akc cticuedstvedetreticiauuaeuuieise ss 5 sc. 9
Association for Reduction of Violence v.
Hall, 734 F.2d 63 (1st Cir. 1984) .............. 28
Baker Perkins, Inc. v. Werner &
Pfleiderer Corp., 710 F.2d 1561 (Fed. Cir.
PE ibs ca hides cssksceukaa dr ocbsek binds peso teenie 9,10
Belbacha v. Bush, 520 ¥.3d 452 (App. Dis.
COO, SE: enuecachaccniaasrencvuncsnsauebeienieaate 12
Boeing Co. v. Shipman, 411 F.2d 365, 374
Ce Re i ne netesa aavetsxacvennieeenaees 25
-X1-
Cases — Continued:
Boulder v. Lewis, 21 F2d 910 (8th Cir.
a a a a 11
Brown v. Motor Inns of Carolina, Inc., 47
N.C. App. 115, 266 S.E.2d 848 (1980), cert.
denied, 301 N.C. 86 (1980) .........sececcceeee. 4
Brown v. Thompson, 430 F.2d 1214 (5th
Re I aso edad le duh yee lu idesambenieedeniewess 28
Burns v. Thiokol Chemical Corp., 483 F.2d
SO CR Ct, TTI ov ceisecccsesovcvecdesccadnceosse 26
Burns, Trevino v. Celanese Corp., 701
PS oki 4k ae 25, 27
Calrfornia v. United States District Court,
213 F.2d 818 (Sth Cir. 1964) .......ccccccoveees 7
Chandler v. Judicial Council of Tenth
Circuit, 398 U.S. 74, 26 L. Ed. 2d 100, 90
S. Ct. 1648 (1970), reh. den., 399 U.S. 937,
26 L. Ed. 2d 809, 90S. Ct. 2248 (1970) ..... Y
Chase v. Rohson, 435 F2d 1059 (7th Cir.
RE ce iccishullecausadiiaanssinadultenccheontisecsysss 12
Cheney v. United States Dist. Court, 542
U.S. 367, 159 L. Ed. 2d 459, 124 S. Ct.
NEN sisvcicdccsrainnctesuvodsbisawoegvsivesss 11, 12
Chuidian v. Philippine Nat'l Bank, 912
’.2d 1095 (9th Cir. 1990) ........... Seemeaiawaes’ 9
Coughlin v. Lee, 946 F.2d 1152 (Sth Cir.
EE sdinGaaddccudessspuvaunksed cous atessindiecewebeits 25
-X11-
Cases — Continued:
Crown Zellerback: Corp. v. kederal Trade
Com., 156 F.2d 927 (9th Cir. 1964) .......... 8
Duniavey v. Economy Fire & Casualty
Co., 887 F.2d 893 (8th Cir., 1989) ............ 6
Estate of Whitlock v. Commissioner, 547
F.2d 506 (10th Cir. 1976), cert. den., 430
U.S. 916, 51 L. Ed. 2d 594, 97S. Ct. 1329
Ex parte Abernathy, 320 U.S. 219, 88 L.
BG. FS, SEB. Ch, 1S (CAGES) occcccccssvcascvccsecese ll
Ex parte Farrell, 189 F.2d 540 (1st Cir.
1951), cert. den., 342 U.S. 839, 96 L. Ed.
GB4. ‘TS BS. TE GALAGA) 5. ccvcvcccccecececcecvces 8
Ex parte Republic of Peru, 318 U.S. 578,
87 L. Ed. 1014, 63 S. Ct. 793 (1943) ......... g
Ex parte Riddle, 255 U.S. 450, 65 L. Ed.
Fas ee Be Re OED x6 sd tubbewekevsccnsevcss 9
Eyre v. McDonough Power Equip., Inc.,
755 F.2d 416, 419 (5th Cir. 1985) ............ 25
First Jersey Secur., Inc. v. Bergen, 605
F.2d 690 (3rd Cir. 1979), cert. den., (1980)
444 U.S. 1074, 62 L. Ed. 2d 756, 100S. Ct.
L020 (1980) ....ccccccse ele bude a iuee vugnteddswewee 9,10
Fisher v. Delehant, 250 F.2d 265 (8th Cir.
IR le ara eee ee 1]
-xill-
Cases — Continued:
Garner v. Wolfinbarger, 430 F.2d 1093
(5th Cir. 1970), cert. denied, 401 U.S. 974,
91S. Ct. 1191, 28 L. Ed. 2d 323 (1971) .....
Green v. Occidental Petroleum Corp., 541
i BE ey.)
Harris v. Gibson, 322 F.2d 780 (Sth Cir.
1963), cert. den., 376 U.S. 908, 11 L. Ed.
2d GOG, 84S. Ct. G61 C1964) .......0.csceesess..
Hartley Pen Co. v United States Dist.
Court, 287 F.2d 324, (9th Cir. 1961) .........
Heflin v. United States, 358 U.S. 415, 3 L.
Ea. 2d 407, 79S. Ct: 451 (1959) ..........4...
Henderson Tire & Rubber Co. v. Reeves,
14 F.2d 903 (8th Cir. 1926), cert. den., 273
U.S. 744, 71 L. Ed. 870, 47 S. Ct. 336
I ea a A au hien hv deinen vs
Hill v. United States, 368 U.S. 424, 7 L.
Ed. 2d 417, 82 S. Ct. 468 (1962) .....eeeeeeees.
Tilinois Council on Long Term Care, Inc. v.
Shalala, 143 F.3d 1072 (7th Cir. 1998) .....
In re Appeal from Civil Penalty Assessed
for Violations of Sedimentation Pollution
Control Act, 92 N.C. App. 1, 373 S.E.2d
572 (1988), rev'd on other grounds, 324
N.C. 373, 379 S.E.2d 30 (1989) .........c0ccee.
In re Alantic City Railroad, 164 U.S. 638,
41 L.. Ba. 579, 17 3. Ce. 206 (1897) ...........
28
a4, 32
10
18
-X1V-
Cases — Continued:
In re Baldwin- United Corp. (Single
Premium Deferred Annuities Ins.
Litigation), 770 F.2d 328 (2nd Cir. 1985) ..
In re Cheney, 334 F.3d 1096 (App. Dis.
Col. 2003), vacated, remanded, 542 U.S.
367, 159 L. Ed. 2d 459, 124 S. Ct. 2576
RRR ATER Ane ap ne om ee ee
In re HKastern Cherokees, 220 U.S. 88, 55
L. B4.:379, 31 &. Ct. S73 €991)) ...4..0....2:.
In re Eilers Music House, 284 F. 815 (9th
GED Fs ae Ree Oe ne "
In re Garros, 229 F. 363 (ist Cir. 1916) ...
In re Glaser, 198 U.S. 171, 49 L. Ed. 1000,
Se ee ee boo os orc c cs carnnase ties vesexs
In re-Grand Jury Proceedings of United
States, 626 F.2d 1051 (1st Cir. 1980) ........
In re Heilbroner, 69 F.2d 643 (2nd Cir.
I inara st acuican sige ers hes kddedeae seoknient
In re Lisman, 89 F.2d 898 (2nd Cir. 1937)
In re Massachusetts, 197 U.S. 482, 49 L.
Ea, 845, 35S. Ct: 512 CASO) ..... ccc ecccsecee:
In re Melvin, 546 F.2d 1 (1st Cir. 1976) ....
In re Ojeda Rios, (1988, CA2) 863 F.2d 202
Ee CIEE asin id even ack savnnwedersyausthaiaes
10
10
11
-XV-
Cases — Continued:
In re Special March 1974 Grand Jury, etc.,
541 F.2d 166 (7th Cir. 1976), cert. den.,
430 U.S. 929, 51 L. Ed. 2d 773, 97S. Ct.
BE EEE estcudcdeidedsanbeckeeesiadeleeenee 11
In re United States, 397 F.3d 274 (5th Cir.
2005), stay lifted, remanded, 400 F.3d 277
(5th Cir. 2005), cert. den., 161 L. Ed. 2d
Pe aN nO Lees 10
International Business Machines Corp. v.
United States, 480 F.2d 293 (2nd Cir.
1973), cert. den., 416 U.S. 979, 40 L. Ed.
2d 776, 94S. Ct. 2413 (1974), cert. den.,
416 U.S. 980, 40 L. Ed. 2d 777, 94S. Ct.
PELE es | Re Se eon NaN er 11
ITT Community Development Corp. v.
Barton, 569 F.2d 1351 (5th Cir. 1978) ...... 11
Jackson v. Choate, 404 F2d 910 (5th Cir.
DO so sicasincriddneviviaisteobeseeaaeae 11
John Gund Brewing Co. v. United States,
204 F. 17 (8th Cir. 1913), mod., 206 F. 386
Ci TAP. BEE vikisidieeccmnarin eee 11
Johnson and Smith v. First Union
Corporation, 128 N.C. App. 450, 496
S.E.2d 1 (1998), cert. denied, 351 N.C.
648: 543 S.5.2E BIO CEO) on ccccevecssecesviess 4
Keaton v. Kennamer, 42 F.2d 814 (10th
CE. TOIIE occa disenckssauneestindunaesme eee 8
-XV1-
Cases — Continued:
Kerr v. United States Dist. Ct. for
Northern Dist., 511 F.2d 192 (9th Cir.
1975), affirmed, 426 U.S. 394, 96S. Ct.
2119, 48 L. Ed. 2d 725 (1976) ...........ceeeuee 28
Lucas v. United States, 36 F.2d 1015
(App. Dis. Col. 1929) ........ccccccscscccscccvcsess 11,12
Marshall v. Westinghouse Electric Corp.,
576 F.2d 588 (5th Cir. 1978) ...............008- 27
McClellan v. Cariand, 217 U.S. 268, 54 L.
ma. 762, 30 8. Ct. 601 (1910) ................... 8
Merrimack River Sav. Bank v. Clay
Center, 219 U.S. 527; 31 S. Ct. 295; 55 L.
chi icdessuvevesseseverescsss 29
Michigan Ass'n of Homes & Servs. for the
Aging v. Shalala, 127 F.3d 496 (6th Cir.
es is ssnePtvdccactsivevesevesesee 10
Moor v. Texas & N. O. RB. Co., 297 U.S.
101, 80 L. Ed. 509, 56 S. Ct. 372 (1936) .... 7
Morrison v. Work, 266 U.S. 481, 69 L. Ed.
EE re 7
Muir v. Chatfield, 255 F. 24 (2nd Cir.
Nis ckdevedsesenevers oer oe 8
Mutual Life Ins. Co. v. Holly, 135 F.2d 676
Svar. £943) ......... Nes eine ci adink kiwi bacon 8
New York C. R. Co. v. White, 243 U.S.
188, 37 S. Ct. 247, 61 L. Ed. 667 (1917) .... 4
-XV11-
Cases — Continued:
New York v. Shore Realty Corp., 763 F.2d
OD Ce Cae. I yi Fides ctoa cnc icate dake 10
O'Neal v. Riceland Foods, 684 F.2d 577
CEES Sia REE wakcesasincsccceausiiebieteibaneccees 26
Oppenheimer Fund, Inc. v. Sanders, 437
U.S. 340, 98S. Ct. 2380, 57 L. Ed. 2d 253
CR Pe was davcnces su niacd ceo cea ehaoanebeunees 26
Parr v. United States, 351 U.S. 513, 100
L. Ed. 13877, 76S. Ct. 912 (1956), reh.
den., 352 U.S. 859, 1 L. Ed. 2d 69, 77S.
Rei: Boe EE aidan divdnivircariseurenimateiccwedts 9
Petition of Henneman, 137 F.2d 627 (1st
CAM. MO isin chs nev sabes veep bbnue aaa Radeon anes 8
Pratt v. Stout, 85 F.2d 172 (8th Cir. 1936) 7
Public Utilities Com. v. Capital Transit
Co., 214 F.2d 242 (App. Dis. Col. 1954) ..... 11
Rich v. Martin Marietta Corp., 522 F.2d
eae COMERS Cae BF cnc snc ck Sup ewbandbvce ces 27
Roach v. First Nat'l Bank, 84 F.2d 969
EEE Sci. SD statis woimecaeceieieas ee eae. 7
Sanders v. Shell Oil Co., 678 F.2d 614 (5th
0) Be. . : nee Pete ibis het sid REE OR ad ks 25
SEC v. Torr, 87 F.2d 446 (2nd Cir. 1937) .. 10
Sinclair Refining Co. v. Mid’2and O11 Co.,
Sey ee OE LAC Ae, TE ais va vSinkakisiowrics 7
-XVlll-
Cases — Continued:
Snauffer v. Stimson, 155 F2d 861 (App.
I I ae cin cack cubiin Geudaneeensesen 11
Susquehanna Valley Alhance v.. Three
Mile Island Nuclear Reactor, 619 F.2d 231
(3rd Cir. 1980), cert. den., 449 U.S. 1096,
66 L. Ed. 2d 824, 101 S. Ct. 893 (1981) ..... 10
| Swanner v. United States, 406 F.2d 716
Ss I i Si se Nc cens ck es co se wan deececeas 28
\ Tanner v. McCall, 625 F.2d 1183 (5th Cir.
IE sce cinoedeedts Ovilie cas hnseucauhvunwamsaevvedst y a
Trautwein v. Moreno Mut. Irr. Co., 22
Be 7 Cite GAT. BOD) ons evince cssevecccccescs: 7
United States Alkali Export Ass'n v.
United States, 325 U.S. 196, 89 L. Ed.
$604, OG :S. Cb: LIBS CIO4D) o ossivcciccssicnses. 9
United States v. Carter, 270 F.2d 521 (9th
RRR IRREIN Easel eve per Oey Dn cn Rees oN aR ea 5 Mey.
United States v. Hall, 145 F2d 781 (9th
Cir. 1944), cert. den., 324 U.S. 871, 89 L.
Ed. 1425, 65 S. Ct. 1016 1945) ............... 8
United States v. Mellon Bank, N. A., 545
ee 8 Ee Ay: pn 11
United States v. New York Tel. Co., 434
U.S. 159, 54 L. Ed. 2d 376, 98 S. Ct. 364
SE cna sda eh eet ce 9
United States v. Salinas, 693 F.2d 348
re ee 5 hic op ks can ccucsdecicabinevsineas ees 9
-X1X-
Cases — Continued:
United States v. Sorren, 605 F.2d 1211
a all aiakicn
United States v. United States Dist.
Court, 206 F.2d 303 (9th Cir. 1953) .........
Vuitton et Fils S.A. v. J. Young
Enterprises, Inc., 644 F.2d 769 (9th Cir.
MEE ci rctindavahon snlepbuecnekcaueniiad ibaa ide aatis
Waddell v. Alldredge, 480 F2d 1078 (8rd
Re ND gion tach busccauindanus puwhcetoanatedieeseue sass
Weahkee v. Norton, 621 F.2d 1080 (10th
RE NE hic canna ecun indus oucmeep eee me daaeeinss
Westchester Day Sch. v. Village of
Mamaroneck, 386 F.3d 183 (2nd Cir.
eg ee ee
Zell v. Judges of Circuit Court, 149 F. 86
SO, SEI 1s vi cc aniicicmininacmionnnmuewam sais
Constitutional Provisions, Statutes and Rules:
WO. FUMIE OE HE. FE ovine cnccs sdscnisenceces
ee eB niickvkontalididindaiesenewauenedns
Pi eG WI TID tacnvocvescnaseaicsennenuine
en eM BE iki d ence vkebdsvccvdeaceaunece 18, 24
er NE iss cs che ces se dsecuctdceaes
N.C. Gen. Stat. § 1A-1, (N.C. R. Civ. P.)
Ee ee icc os isnt row sauekevenanouss 26, 28
-XxX-
Constitutional Provisions, etc. — Continued:
N.C. (sen. Stat. § TA-1 eb Seq .....c0c0cccess 18
POS. Se CS TIRO vicivsesncccveeniesicssens 24
Dare CN CI, SF EPRAINO Sccvccsvecvcwscvevsepevee 24
Bee I, SR IE oes biccducevevavvununsnes 21
Pee, SE NE FROME ss cca kaviccavsveeciadacte: 23
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EMERGENCY
PETITION FOR WRIT OF MANDAMUS
PETITION FOR WRIT OF PROHIBITION
PETITION FOR A MANDATORY INJUNTION
Pursuant to the Rules of this Court and the All
Writs Act (28 U.S.C. §§ 1257, 1651), J. KAMAU
CHRISTOPHER alk/a JOSEPH KAMAU
CHRISTOPHER BEY (hereinafter referred to as the
“Petitioner’) hereby respectfully petitions’ the
SUPREME COURT OF THE UNITED STATES to
take any emergency action appropriate to preserve
appellate jurisdiction and prevent undue and abusive
prejudice against the Petitioner pending review of
the final judgment in this matter entered by the
SUPREME COURT OF NORTH CAROLINA in favor
of NORTH CAROLINA STATE UNIVERSITY, as a
subordinate public office and entity in the
GOVERNMENT OF THE STATE OF NORTH
CAROLINA (hereinafter colléctively referred to as
the “State of North Carolina”, the “State”, the
“Government”, individually, or collectively and
jointly, the “Respondent” or “Respondents’).
OPINIONS BELOW
The opinions and orders of the SUPREME
COURT OF NORTH CAROLINA are unpublished
(Pet. App. 23a-25a). ‘The epinions and orders of the
COURT OF APPEALS OF NORTH CAROLINA are
unpubhished (Pet. App. 14a-22a). The opinions and
orders of the NORTH CAROLINA INDUSTRIAL
COMMISSION are unreported (Pet. App. la-13a).
JURISDICTION
On September 4, 2008, the SUPREME
COURT OF NORTH CAROLINA entered a judgment
and order dismissing the Notice of Appeal and
denying the Petition for Discretionary Review upon
Certification filed by Petitioner (Pet. App. 23a-25a,
26a-71a). No pleading was filed with, nor order
made by, the SUPREME COURT OF NORTH
CAROLINA, with respect to a rehearing of this
matter. This Court is authorized to review a federal
question, and take any and all necessary
extraordinary measures to aid said appellate
jurisdiction, where a state court of last resort has
passed on said question alleging the violation of any
reserved and guaranteed rights, privileges, and
immunities under the Constitution of the Umted
States of America and the All Writs Act. See U.S.
Const. art. III; 28 U.S.C. §§ 1257, 1651.
STATUTORY PROVISIONS INVOLVED
All persons born or naturalized in the United
States, and subject to the jurisdiction thereof, are
citizens of the United States and‘ of the State
wherein they reside. No State shall make or enforce
any law which shall abridge the privileges or
immunities of citizens of the United States; nor shall
any State deprive any person of life, lberty, or
property, without due process of law; nor deny to any
person within its jurisdiction the equal protection of
the laws. U.S. Const. amend. XIV § 1.
INTRODUCTION
The Petitioner hereby respectfully petitions
the SUPREME COURT OF THE UNITED STATES
to take any action appropriate to preserve appellate
jurisdiction and prevent undue and abusive prejudice
against the Petitioner pending review of the final
judgment in this matter entered by the SUPREME
COURT OF NORTH CAROLINA in favor of the
Respondent affirming judgment dismissing the
instant action filed with the NORTH CAROLINA
INDUSTRIAL COMMISSION with prejudice (Pet.
App. 1la-25a). The Petitioner has_ presented
contemporaneously herewith a Petition for Writ of
Certiorari showing that this Court has appellate
jurisdiction in this matter, and that this matter
involves an violation of the Constitution of the
United States of America, which is of public
importance and crucial to jurisprudence in every
jurisdiction under the Constitution of the United
States of America (Pet. App. 26a-88a, Record 293-
297). In preservation of this appellate jurisdiction,
and to prevent any further prejudice against the
Petitioner, this prayer for extraordinary relief
respectfully requests all necessary action through
mandate, prohibition and injunction to preserve the
record and appellate jurisdiction of this Court. See
Pet. App. la-88a; Record 32-175 (Petitioner’s
Response to Respondent’s Motion tor Summary
Judgment and Motion to Suspend Discovery, and
Petitioner’s Cross Motion to Compe] Discovery), 177-
213, 280 (Petition for Extraordinary Relief before the
North Carolina Court of Appeals), 291-297
(Assignments of Error for Appeal before the North
Carolina Court of Appeals).
STATEMENT OF CASE
i. Summary of Federal Question
The decisions below presents significant
federal questions as to the constitutional validity of
exclusions and immunities. provided to employers
and co-employees by universally mandated exclusive
legislative industria! insurance programs, commonly
referred to as “workers’ compensation” (hereinafter
referred to as the “Programs”). In New York C. RB.
Co. v. White, 243 U.S. 188, 37 S. Ct. 247, 61 L. Ed.
667 (1917), this Court held that the Programs are
not repugnant to the provisions of the Constitution,
so long as the Programs provide an “adequate
substitute” for the prohibited common law claims for
civil remedy for personal injury by industrial
accident in the workplace. The GENERAL COURT
OF JUSTICE OF NORTH CAROLINA, comprised of
the SUPREME COURT OF NORTH CAROLINA
(hereinafter referred to as the “N.C. Supreme
Court”), the COURT OF APPEALS OF NORTH
CAROLINA (hereinafter referred to as the “N.C.
Court of Appeals”), and various superior and district
courts covering all jurisdictions within the State of
North Carolina (hereinafter collectively referred to
as the “N.C. Courts”), has applied this principle in
Johnson and Smith v. First Union Corporation, 128
N.C. App. 450, 496 S.E.2d 1 (1998), cert. denied, 351
N.C. 648; 543 S.E.2d 870 (2000) and Brown v. Motor
Inns of Carolina, Inc., 47 N.C. App. 115, 266 S.E.2d
848 (1980), cert. denied, 301 N.C. 86 (1980), where it
was held that if the North Carolina Workers’
Compensation Act (hereinafter referred to as the
“N.C.W.C.A.”) has no application and does not
5.
provide an “effective administrative remedy”, the
N.C.W.C.A. and the exclusivity provisions thereof
have no application or effect to bar a common law
claim for civil remedy against an employer or co-
employee. See N.C. Gen. Stat. § 97-1 et seq.
In the instant case, Petitioner duly presented
numerous objections showing that, despite the fact
that Petitioner was employee of Respondent at a
certain time in question with respect to the personal
injury in question, the N.C.W.C.A. does not provide
an effective administrative remedy, and thus has no
application to bar the common law claim for civil
remedy filed against Respondent in the instant case
(Record 32-175, 177-213, 280, 291-297). Despite
these objections, the N.C. Courts passed on this
appeal and these federal questions’ without
adjudication of the objections presented and without
significant or adequate finding of fact on the
personal injury in question (Pet. App. la-25a). This
dismissal was based solely on the grounds of the
relationship between Petitioner and Respondent
(Pet. App. 1-25a, Record 32-297).
Petitioner contends that N.C.W.C.A. does not
provide an adequate substitute for a common law
claim for civil remedy in the instant case, and, thus,
this decision does not comport with the previous
holdings of this Court to insure that the
interpretation and official action in invoking the
relevant provisions of the N.C.W.C.A. comphes with
the provisions of the Constitution of the United
States of America, primarily the Fourteenth
Amendment provisions for due process and equal
protection (Pet. App. 26a-7la, Record 32-175, 177-
213, 280, 291-297). Moreover, the U.S. Court of
Appeals has also held that a crucial federal question
b
exist as to if all remedies at law can be eliminated by
the exclusivity provisions of a workers’ compensation
law where workers’ compensation is_ ineffective.
Dunlavey v. Economy Fire & Casualty Co., 887 F.2d
893 (8th Cir., 1989). Various state courts of last
resort have also decided this important federal
question, but there are widespread inconsistencies
between the construction of the relevant statutes,
the remedies provided, and the exceptions to the
relevant exclusivity provisions. In many
jurisdictions, the original concept of the Programs
was to provide employees with guaranteed benefits
for injuries in the workplace. At present, the
Programs provide employers with immunity from all
liability, even if the employee’s benefits provided by
the Programs are not an adequate substitute for the
forfeiture of common law remedy, and without
regard for employees’ rights to due process. It is
critical that this Court address these inconsistencies
to insure that constitutional protections provided to
all citizens of the United States are not violated by
the letter of, or official state action in administration
of, the Programs. Prayer for review by appeal was
submitted contemporaneously with this prayer for
extraordinary relief.
This prayer for extraordinary _ relief
respectfully petitions this Court to _ provide
appropriate relief in light of clear, convincing and
uncontroverted evidence that the Respondent
willfully and intentionally destroyed documentary
and physical evidence relevant to these proceedings
during the pendency of these proceedings, and that
the Petitioner will be further prejudiced without
immediate action to prevent further prejudice and
impairment of appellate jurisdiction.
IT. Statutory Background
In passing the All Writs Act of 1938, Congress
revised and codified Sections 342 and 377 of the
Judicia! Code into Section 1651 (hereinafter the “All
Writs Act”, as currently codified with the provisions
as amended in 1948 and 1949). The All Writs Act
provides this Court, and all other courts created by
Act of Congress, with the power to “issue all writs
necessary or appropriate im aid of their respective
jurisdictions and agreeable to the usages and
principles of law.” See 28 U.S.C. § 1651.
Appellate courts have inherent power to make,
in its discretion, such orders as may be necessary to
preserve status quo between parties until] final
disposition of any pending appeal. Vuutton et Fils
S.A. v. J. Young Enterprises, Inc., 644 F.2d 769 (9th
Cir. 1981). Power of mandamus or prohibition is
reserved for use in those rare instances when
appellate jurisdiction would be adversely affected
unless action is taken. Calrfornia v. United States
District Court, 213 F.2d 818 (9th Cir. 1954).
Extraordinary remedial writs are not a matter of
right, but an exercise of sound judicial discretion.
See Morrison v. Work, 266 U.S. 481, 69 L. Ed. 394,
45 S. Ct. 149 (1925); Moor v. Texas & N. O. R. Co,
297 U.S. 101, 80 L. Ed. 509, 56 S. Ct. 372 (1936);
Trautwein v. Moreno Mut. Irr. Co., 22 F.2d 374 (9th
Cir. 1927); Sinclair Refining Co. v. Midland Oil Co.,
55 F.2d 42 (4th Cir. 1932): Roach v. First Nat'] Bank,
84 F.2d 969 (5th Cir. 1936); Pratt v. Stout, 85 F.2d
172 (8th Cir. 1936).
A federal court, including this Court, must
have appellate jurisdiction over a matter to consider
granting a petition for writ of extraordinary relief.
See Jn re Massachusetts, 197 U.S. 482, 49 L. Ed. 845,
25S. Ct. 512 (1905); Jn re Glaser, 198 U.S. 171, 49 L.
Ed. 1000, 25 S. Ct. 653 (1905); McClellan v. Carland,
217 U.S. 268, 54 L. Ed. 762, 30 S. Ct. 501 (1910);
Heflin v. United States, 358 U.S. 415, 3 L. Ed. 2d
407, 79 S. Ct. 451 (1959); Aiz// v. United States, 368
U.S. 424, 7 L. Ed. 2d 417, 82 S. Ct. 468 (1962); Ze// v.
Judges of Circuit Court, 149 F. 86 (4th Cir. 1966);
Muir v. Chatfield, 255 F. 24 (2nd Cir. 1918); Jn re
FE:lers Music House, 284 F. 815 (9th Cir. 1922); Jn re
Heilbroner, 69 F.2d 643 (2nd Cir. 1934); Henderson
Tire & Rubber Co. v. Reeves, 14 F.2d 903 (8th Cir.
1926), cert. den., (1927) 273 U.S. 744, 71 L. Ed. 870,
47 S. Ct. 336 (1927): Keaton v. Kennamer, 42 F.2d
814 (10th Cir. 1930); Mutual Life Ins. Co. v. Holly,
135 F.2d 675 (7th Cir. 1943); United States v. Hall,
145 F2d 781 (9th Cir. 1944), cert. den., 324 U.S. 871,
89 L. Ed. 1425, 65 S. Ct. 1016 (1945); Petition of
Henneman, 137 F.2d 627 (1st Cir. 1943); Crown
Zellerbach Corp. v. Federal Trade Com., 156 F.2d
927 (9th Cir. 1964); Green v. Occidental Petroleum
Corp., 541 F.2d 1335 (9th Cir. 1976); Ex parte
farrell, 189 F.2d 540 (1st Cir. 1951), cert. den., 342
U.S. 839, 96 L. Ed. 634, 72 S. Ct. 64 (1951).
Authority of federal courts under 28 U.S.C. §
1651 is not confined to issuance of writs in aid of
jurisdiction already acquired by appeal but extends
to those cases which are within its appellate
jurisdiction although no appeal has been perfected.
Application of President & Directors of Georgetown
College, Inc., 331 F.2d 1000 (App. Dis. Col. 1964),
reh. den., 331 F.2d 1010 (App. Dis. Col. 1964), cert.
den., 377 U.S. 978, 12 L. Ed. 2d 746, 84 S. Ct. 1883
(1964).
Statutory power of this Court to issue writs of
prohibition or mandamus could be constitutionally
exercised only insofar as such writs are in aid of its
appellate jurisdiction, and issuance of said writs in
such cases usually would be refused unless question
of public importance was involved. United States
Alkali Export Ass'n v. United States, 325 U.S. 196,
89 L. Ed. 1554, 65 S. Ct. 1120 (1945). Also see Fx
parte Riddle, 255 U.S. 450, 65 L. Ed. 725, 41 S. Ct.
370 (1921); United States v. New York Tel. Co., 434
U.S. 159, 54 L. Ed. 2d 376, 98 S. Ct. 364 (1977); Jn re
Atlantic City Railroad, 164 U.S. 633, 41 L. Ed. 579,
17 S. Ct. 208 (1897); Jn re Garrosi, 229 F. 363 (1st
Cir. 19136); Estate of Whitlock v. Commissioner, 547
F.2d 506 (10th Cir. 1976), cert. den., 430 U.S. 916, 51
L. Ed. 2d 594, 97 S. Ct. 1329 (1977); Jn re Ojeda Rios,
(1988, CA2) 863 F.2d 202 (2nd Cir. 1988); Aref v.
United States, 452 F3d 202 (2nd Cir. 2006); Wadde//
v. Alldredge, 480 F2d 1078 (8rd Cir. 1973); First
Jersey Secur., Inc. v. Bergen, 605 F.2d 690 (3rd Cir.
1979), cert. den., (1980) 444 U.S. 1074, 62 L. Ed. 2d
756, 100 S. Ct. 1020 (1980); Baker Perkins, Inc. v.
Werner & Ptleiderer Corp., 710 F.2d 1561 (Fed. Cir.
1983); Ex parte Republic of Peru, 318 U.S. 578, 87 L.
Ed. 1014, 63 S. Ct. 793 (1943); Churdian v.
Philippine Nat'l Bank, 912 F.2d 1095 (9th Cir. 1990);
United States Alkali Export Ass'n v. United States,
325 U.S. 196, 89 L. Ed. 1554, 65 S. Ct. 1120 (1945):
Chandler v. Judicial Council of Tenth Circuit, 398
U.S. 74, 26 L. Ed. 2d 100, 90 S. Ct. 1648 (1970), red.
den., 399 U.S. 937, 26 L. Ed. 2d 809, 90 S. Ct. 2248
(1970); Parr v. United States, 351 U.S. 513, 100 L.
Ed. 1377, 76 S. Ct. 912 (1956), reA. den., 352 U.S.
859, 1 L. Ed. 2d 69, 77 S. Ct. 21 (1956); United States
v. Salinas, 693 F.2d 348 (5th Cir. 1982).
-10-
Mandatory injunctions are appropriate where
a party would be substantially prejudiced and suffer
irreparable harm without extraordinary intervention
by the court, or where failure to address unusual,
exceptional and extraordinary circumstances would
affect the appellate jurisdiction of the court. New
York v. Shore Realty Corp., 763 F.2d 49 (2nd Cir.
1985); United States v. Sorren, 605 F.2d 1211 (1st
Cir. 1979); Jn re Baldwin-United Corp. (Single
Premium Deferred Annuities Ins. Litigation), 770
F.2d 328 (2nd Cir. 1985); SEC v. Torr, 87 F.2d 446
(2nd Cir. 1937); Susquehanna Valley Alliance v.
Three Mile Island Nuclear Reactor, 619 F.2d 231
(3rd Cir. 1980), cert. den., 449 U.S. 1096, 66 L. Ed.
2d 824, 101 S. Ct. 893 (1981); Westchester Day Sch.
v. Village of Mamaroneck, 386 F.3d 183 (2nd Cir.
2004).
Extraordinary remedial writs are. only
appropriate under unusual, exceptional,
extraordinary, and compelling circumstances when
no other remedy is available, and the petitioner
bears a heavy burden of showing that extraordinary
relief is necessary. Jn re Cheney, 334 F.3d\1096 (App.
Dis. Col. 2003), vacated, remanded, 542 U.S. 367,
159 L. Ed. 2d 459, 124 S. Ct. 2576 (2004); Jn re
United States, 397 F.3d 274 (5th Cir. 2005), stay
lifted, remanded, 400 F.3d 277 (5th Cir. 2005), cert.
den., 161 L. Ed. 2d 289 (2005); First Jersey Secur.,
Inc. v. Bergen, 605 F.2d 690 (8rd Cir. 1979). cert.
den., 444 U.S. 1074, 62 L. Ed. 2d 756, 100 S. Ct. 1020
(1980); Michigan Ass'n of Homes & Servs. for the
Aging v. Shalala, 127 F.3d 496 (6th Cir. 1997);
TIiiinois Council on Long Term Care, Inc. v. Shalala,
143 F.3d 1072 (7th Cir. 1998); Baker Perkins, Inc. v.
Werner & Pfleiderer Corp., 710 F2d 1561 (Fed. Cir.
see
1983); Cheney v. United States Dist. Court, 542 U.S.
367, 159 L. Ed. 2d 459, 124 S. Ct. 2576 (2004);
United States v. Carter, 270 F.2d 521 (9th Cir. 1959);
Lucas v. United States, 36 F.2d 1015 (App. Dis. Col.
1929): Fisher v. Delehant, 250 F.2d 265 (8th Cir.
1957); Hartley Pen Co. v. United States Dist. Court,
287 F.2d 324 (9th Cir. 1961); John Gund Brewing Co.
v. United States, 204 F. 17 (8th Cir. 1913), mod., 206
F. 386 (8th Cir. 1913); J7T Community Development
Corp. v. Barton, 569 F.2d 1351 (5th Cir. 1978);
International Business Machines Corp. v. United
States, 480 F.2d 293 (2nd Cir. 1973), cert. den., 416
U.S. 979, 40 L. Ed. 2d 776, 94 S. Ct. 2413 (1974),
cert. den., 416 U.S. 980, 40 L. Ed. 2d 777, 94S. Ct.
2413 (1974); Ex parte Abernathy, 320 U.S. 219, 88 L.
Ed. 3, 64S. Ct. 13 (1943).
Party seeking extraordinary relief must show
that its right to relief is clear and indisputable.
In re Special March 1974 Grand Jury, etc., 541 F.2d
166 (7th Cir. 1976), cert. den., 4830 U.S. 929, 51 L.
Ed. 2d 773, 97 S. Ct. 1547 (1977). A petitioner for
extraordinary relief must present a question that is
not moot, or has become moot. Snauffer v. Stimson,
155 F2d 861 (App. Dis. Col. 1946); Boulder v. Lewis,
21 F2d 910 (8th Cir. 1927); Jackson v. Choate, 404
F2d 910 (5th Cir. 1968). Extraordinary writs are
appropriate to address judicial abuse of discretion in
the courts below. United States v. Mellon Bank, N.
A., 545 F.2d 869 (3rd Cir. 1976); Jn re Melvin, 546
F.2d 1 (1st Cir. 1976); Public Utilities Com. v.
Capital Transit Co., 214 F.2d 242 (App. Dis. Col.
1954). The party seeking extraordinary relief must
promptly and timely seek such relief, and any undue
or unreasonable delay in seeking relief would make
such relief inappropriate. Jn re Eastern Cherokees,
42.
220 U.S. 83, 55 L. Ed. 379, 31 S. Ct. 373 (1911);
Cheney v. United States Dist. Court, 542 U.S. 367,
159 L. Ed. 2d 459, 124 S. Ct. 2576 (2004); United
States v. Carter, 270 F.2d 521 (9th Cir. 1959); Lucas
v. United States, 36 F.2d 1015 (App. Dis. Col. 1929)
Destruction of evidence is an unusual,
exceptional and extraordinary circumstance without
any administrative remedy that warrants
extraordinary intervention and injunctive relief by
the court with jurisdiction. /n re Grand Jury
Proceedings of United States, 626 F.2d 1051 (1st Cir.
1980); Chase v. Robson, 435 F2d 1059 (7th Cir.
1970). Injunctions are appropriate to preserve status
quo at any stage in the proceedings and prevent
irreparable harm. See Henderson Tire & Rubber Co.
v. Reeves, 14 F.2d 903 (8th Cir. 1926), cert. den., 273
U.S. 744, 71 L. Ed. 870, 47 S. Ct. 336 (1927); Harris
v. Grbson, 322 F.2d 780 (5th Cir. 1963), cert. den.,
376 U.S. 908, 11 L. Ed. 2d 606, 84 S. Ct. 661 (1964);
United States v. United States Dist. Court, 206 F.2d
303 (9th Cir. 1953).
A petition for review by appeal can work in
conjunction with other extraordinary remedial writs
if appropriate. Belbacha v. Bush, 520 F.3d 452 (App.
Dis. Col. 2008). Remedy by appeal from refusal of
judge to remove himself for alleged disqualifications
did not preclude remedy by mandamus. or
prohibition. Jn re Lisman, 89 F.2d 898 (2nd Cir.
1937). In hght of exceptional and extraordinary
circumstances, remedy by appeal was inadequate,
and petitioner was entitled to some measure of relief
under 28 U.S.C. § 1651 to prevent grave injustice.
Hartley Pen Co. v United States Dist. Court, 287
F.2d 324, (9th Cir. 1961).
45-
Ill. Factual Background
Prior to 1999, the North Carolina General
Assembly, the legislative branch of the State
Government, mandated that all constituent
institutions of the University of North Carolina
System (“UNC System”) inspect all facilities and
provide a comprehensive report (Pet. App. 46a). In
December 1999, a comprehensive report published by
Respondent found that more than fifty (560%) percent
of the facilities owned, operated and maintained by
Respondent and commonly known as North Carolina
State University (hereinafter referred to as “NCSU”,
in reference to the campus, facilities, and the entire
student, staff and faculty community as opposed to
Respondent) failed to meet building and safety code
standards (Pet. App. 46a-5la). Reports also found
systematic facility deficiencies at multiple campuses
in the UNC System, including North Carolina
Central University (“NCCU”) and the University of
North Carolina at Pembroke (“UNCP”) (Pet. App.
57a-66a). The reports also identified insufficient or
inadequate heating, ventilation and air conditioning
systems (“HVAC Systems”), and that numerous
facilities required mitigation of asbestos and lead
paint (Pct. App. 26a-88a). The reports further
represented that various facilities and programs
were “unsafe” and posed risks to student, staff and
faculty health and safety (Pet. App. 26a-88a).
It is undisputed that Petitioner enrolled at
Respondent NCSU as a full-time student from
August 1999 until May 2004 (Pet. App. 17a). In
August 2002, Petitioner was offered and accepted
employment with Respondent NCSU as a Resident
Advisor, with compensation in the form of a stipend
«lds
below minimum wage, housing and other monetary
and physical services, such as parking and spending
allowances for meals (Pet. App. 17a-18a). Petitioner
resided in the housing provided through employment
as a Resident Advisor in Wood Hall from August
2002 to May 2003, and again from August 2003 to
September 2003, and in Metcalf Hall from May 2003
to August 2003 (Pet. App. 17a-18a; Record 32-175).
Prior to this period of employment, Petitioner
enlisted with the United States Naval Reserve for a
contract period of cight (8) years in July 2002 (Pet.
App. 17a-18a). Before enlisting, Petitioner was
subject to a rigorous physical ability test, and an
extensive physical exam, to determine if Petitioner
was physically fit and medically qualified for
military service, and the United States Navy Reserve
determined that Petitioner was physically fit and
medically qualified for military service prior to July
2002 (Pet. App. 17a-18a; Record 32-175).
In October 2001, Petitioner suffered a chronic
acute respiratory infection and _ tonsillitis, which
condition persisted for approximately one month,
however, no cause for this condition was identified
(Record 32-175). In August 2002, petitioner suffered
a chronic acute respiratory infection, along with
interim periods of flu-hke, bronchitis-like, and
pneumonia-like chest congestion, migraine
headaches, vomiting, severe weight loss, and
tonsillitis, among other conditions, which conditions
persisted until October 2003 (Record 32-175). On
October 7, 2002, Petitioner, along with maintenance
staff of Respondent, identified chronic mold growth
in the HVAC System in Wood Hall (Pet. App. 52a-
54a). Maintenance staff represented, from
experience, that the air filter in the HVAC System
«Lo
unit in question appeared to be at least two (2) years
old, though the air filters should have been changed
at least every six (6) months (Pet. App. 52a-54a).
This was documented in an_ administrative
memorandum submitted to Respondent, which was
included in the record (Pet. App. 52a-88a). Between
May 2003 and August 2003, NCSU, as well as the
rest of North Carolina, experienced unprecedented
flooding, which floodwaters penetrated various
NCSU facilities (Record 32-175). In August 2003,
multiple facilities were closed at NCCU and UNCP
for mold growth and other health hazards, threats
and risks (Pet. App. 57a-66a). Student, staff and
faculty at NCSU questioned the difference in
responses at NCCU and UNCP as compared to
NCSU (Record 32-175). Employees of Respondent,
including Petitioner, were instructed not to say the
word “mold” to any students moving into on-campus
facilities or their parents (Record 32-175).
On September 17, 20038, an article was
published in a NCSU student publication about mold
and other health hazards in NCSU facilities (Record
64-65). On the same day Respondents Timothy
Luckadoo and Gary Thompson exchanged e-mail
correspondence amongst other’ officers and
employees of Respondent (Pet. App. 80a-81a).
Respondent ‘limothy Luckadoo represented to
superiors that Respondent’s maintenance of the
HVAC Systems and other alleged hazards was
appropriate and within the prescribed duty of care
owed to student, staff and faculty (Pet. App. 80a).
However, Respondent Gary Thomspon represented
that the conditions described in the article were
common considering the age of the HVAC Systems,
and that it was common knowledge for facilities staff
-16-
that the HVAC Systems needed to be replaced and
suggested discussing such replacement (Pet. App.
8la).
On the same day, Petitioner was verbally
threatened by Respondent and resigned from his
position of employment, and vacated the premises in
question (Record 32-175). On September 24, 2003,
Respondent sponsored a response to the initial
article to correct any “misperceptions” or “incorrect
information”, without any reference to the
observations or professional opinions of maintenance
or facility staff (Record 64-68). Simultaneously, the
State hired numerous third party and public servant
experts to test the air quality and various surfaces
throughout the facilities in question at NCCU and
UNCP (Pet. App. 57a-66a). Emergency construction
and renovation projects were commenced in all
facilities at NCCU and UNCP deemed infested with
mold and other health hazards, but no emergency
action was taken at NCSU (Pet. App. 46a-88a).
Between September 2003 and December 2003,
Petitioner, together with other student, staff and
faculty at NCSU, authored a 145-page report as a
rebuttal to Respondent’s published response calling a
“systematic” problem of health hazards a
“misperception” (Record 32-175). This 145-page
report was hand delivered by Petitioner to the
Respondent Office of the Governor of the State of
North Carolina (hereinafter referred to as_ the
“Governor’) on January 21, 2004 (Pet. App. 55a-56a).
On January 23, 2004, the Respondent North
Carolina Department of Health and Human Services,
on behalf of the Respondent Governor, confirmed
receipt and confirmed that the State would be
initiating an investigation (Pet. App. 55a-56a).
-17-
At the same time, Respondent ueceived and
falsified information pertaining to this matter even
to the authorities with executive oversight of
occupational and health hazards. In a letter to the
Respondent North Carolina Department of Labor,
Respondent Tim Luckadoo represented that there
were no systematic hazards, threats or risks to the
health and safety of student, staff and faculty at
NCSU, despite the representations of Respondent
Gary Thompson, while specifically citing the
administrative memorandum submitted by
Petitioner to Respondent (Pet. App. 82a-83a). As a
result, the North Carolina Department of Labor
subsequently closed the case on this matter (Pet.
App. 84a). At the same time, Respondent Timothy
Blair represented that Wood Hall required
renovation to ensure code compliance (Pet. App. 85a-
88a)
Petitioner was honorably discharged from the
United States Navy Reserve in June 2005 due to the
acquisition of chronic’ respiratory conditions,
primarily extrinsic asthma (Pet. App. 17a-18a). The
early termination of this enlistment contract was
caused by the medical disqualification of Petitioner
for medical service and resulted in significant
monetary damage to Petitioner (Pet. App. 17a-18a).
During this interim period, Respondent never
conducted the investigation called by the Governor to
the same standards used in the investigations and
inspections at NCCU and UNCP, such as air quality
or toxicity test (Pet. App. 26a-88a).
-18-
IV. Procedural History
Pursuant to the North Carolina Tort Claims
Act, N.C. Gen. Stat. § 143-291 et seq., Petitioner filed
a certain affidavit of tort claim on December 30, 2005
(hereinafter the “Tort Claim”) with the NORTH
CAROLINA INDUSTRIAL COMMISSION
(hereinafter referred to as the “Trial Court”), naming
Respondent as committing negligence acts in the
breach of Respondent’s duty of care to Petitioner,
which breach was the direct and proximate cause of
injury to Petitioner (Record 2-5). The Trial Court is
an executive administrative agency created by the
North Carolina General Assembly pursuant to N.C.
Gen. Stat. § 97-77, which is not part of the N.C.
Courts, but is authorized to hear judicial claims as a
trial court brought under the North Carolina Tort
Claims Act and the N.C.W.C.A. by the power vested
by the North Carolina General Assembly. See N.C.
Const., art. I, § 6; N.C. Const. art. IT], § 1; N.C.
Const. art. III], § 11; N.C. Const., art. IV, § 1; N.C.
Const. art. IV, § 3; N.C. Gen. Stat. § 7A-1 et seq.;
N.C. Gen. Stat. § 143B-1 et seq.; Jn re Appeal from
Civil Penalty Assessed for Violations of
Sedimentation Pollution Control Act, 92 N.C. App. 1,
373 S.E.2d 572 (1988), rev'd on other grounds, 324
N.C. 373, 379 S.E.2d 30 (1989).
On March 9, 2006, Respondent timely filed an
answer to the Tort Claim denying all guilt, and
presenting three (3) affirmative defenses, which were
N.C.W.C.A. exclusivity provisions based = on
Petitioner’s employment with Respondent, statute of
limitations, and contributory negligence, and
simultancously served Petitioner with a discovery
request (Record 6-31). Petitioner responded to
o L Be
Respondent’s discovery request on May 1, 2006, and
simultaneously served Respondent with a discovery
request (Record 32-175). In said discovery request,
Petitioner made reference to announced renovation
of certain facilities owned, operated and maintained
by Respondent which were identified as the direct
and proximate cause of personal injury to Petitioner
(Record 108-127). Petitioner also addressed all three
(3) of Respondent’s affirmative defenses by asserting,
through sworn testimony and narrative responses,
that (i) the personal injury of Petitioner was
attributable to the negligence of Respondent during
the time both before and after employment; the
personal injury of Petitioner did not “arise” by
“accident” “out of and in the course and scope of the
employment”; and the personal injury of Petitioner
was caused by the “intentional misconduct” of
Respondent, which was defined as “misconduct
substantially certain to cause serious injury or
death” to Petitioner; (ii) the accrual of the personal
injury of Petitioner occurred on June 9, 2005, even
though Petitioner initiated a _ relationship with
Respondent in August 1999, and Petitioner was
diagnosed with the medical condition identified as
the personal injury in question in November 2008,
and (iii) Petitioner made every reasonable effort to
meet or exceed his duty of care to himself, while at
the same time Petitioner was deceived by
Respondent, who provided misrepresentations as to
the duty of care owed to Petitioner, and the hazards,
threats and risks to Petitioners health, of which
Respondent was aware (Record 108-127).
In an internal memorandum dated June 9,
2006, which Respondent provided to Petitioner
through a public records requests, Respondent made
-20-
no mention of the affirmative defenses of statute of
limitations or contributory negligence and counsel
for Respondent questioned if the affirmative defense
of N.C.W.C.A. exclusivity would be a “viable motion”,
but that it was being “considered” (Pet. App. 85a-
86a). Respondent also began drafting a response to
Petitioner’s discovery request, which draft
Respondent provided to Petitioner through public
records requests, disclosing that Respondent
intended to proceed with the renovations as
scheduled during the proceedings, and that the
renovations, announced by press release on January
31, 2006, after the filing of this claim, wouid provide
substantial alteration of the heating, ventilation and
air conditioning system (“HVAC System”), which was
recommended by Petitioner and Respondent Gary
Thomspon in 2003 (Pet. App. 87a-88a).
On July 20, 2006, Respondent filed a motion
for summary judgment and motion to suspend
discovery during the pendency of discovery exchange
without providing a _ response to _ Petitioner’s
discovery request, in which Respondent abandoned
the affirmative defenses of statute of hmitations and
contributory negligence and asserted the
applicability of the N.C.W.C.A. and the exclusivity
provisions thereof (Record 10-31). On August 11,
2006, Petitioner responded with a thorough response
and a Cross-Motion to Compel Respondent to
respond to Petitioner’s discovery request, in which
Petitioner provided Petitioner's entire discovery
response, including exhibits, showing that there
were genuine issues of triable issues as to the time,
place, circumstance and nature of the personal injury
in question (Record 32-175). Most relevant,
Petitioner showed that (1) Respondent failed to show
-21-
29 «66
that the injury in question “arose” by “accident” “out
of and in the course and scope of the employment”,
(3i) Respondent was alleged to have committed
“intentional misconduct” which was the direct and
proximate cause of personal injury to Petitioner, (111)
the injury did not “arise” by “accident” “out of and in
the course and scope of the employment”, (iv)
Petitioner was prejudiced by the suspension of
discovery, and (v) there existed genuine issues of
material fact and triable issues of fact as to all of the
foregoing contentions (Record 32-175, 177-213). No
significant or adequate findings of fact were made on
the injury, and the Trial Court dismissed this Tort
Claim with prejudice (Pet. App. 1a-25a).
Petitioner duly, timely and properly filed an
appeal of right and petitions for extraordinary relief
with the N.C. Court of Appeals asserting violation of
constitutional rights to due process and equal
protection under the law, pursuant to N.C. Gen. Stat.
§ 7A-29; N.C. Gen. Stat. § 7A-32 (Record 268-270).
On October 30, 2007, Petitioner filed a Petition for
Writ of Mandamus, Prohibition and Supersedeas,
with an Incorporated Petition for an Immediate
Change of Venue and New Trial with the N.C. Court
of Appeals, seeking extraordinary relief given the
renovation of the facilities in question and other
misconduct by the Trial Court (Record 280). The
N.C. Court of Apveals denied Petitioner’s Petition by
orders entered on November 14, 2007 (Pet. App. 14a-
15a). On December 14, 2007, Petitioner duly, timely
and properly filed the Record on Appeal with the
N.C. Court of Appeals, which contained the questions
for appellate review, which included questions
challenging the actions of the Trial Court as a
violation of the rights of Petitioner to equal
mB
protection and due process of law under the
Constitution of the State of North Carolina and the
Constitution of the United States of America,
primarily citing the provisions of the Fourteenth
Amendment of the Constitution of the United States
of America (Record 1-299). In pertinent part, these
appellate questions contended that, after the course
of due process where Petitioner and Respondent
were afforded the opportunity to plead before the
authorized administrative agency with statutory
authority as a trial court, Petitioner was denied his
right to due process in obtaining evidence relevant to
these proceedings from the opposing party and
incorrectly assigned a_ statutory classification
without adequate evidence, in violation of the
Fourteenth Amendment of the Constitution of the
United States of America (Record 293-297).
Petitioner duly, timely and properly filed a brief in
support of appeal with the North Carolina Court of
Appeals, which provided further legal and factual
support for the questions for appellate review (Pet.
App. 16a-22a). Respondent duly, timely and properly
responded (Pet. App. 16a-22a). Petitioner moved the
N.C. Court of Appeals to allow Petitioner to submit a
reply brief, which motion was granted, due to the
pow cuestions Respondent raised in an attempt to
disqualify evidence submitted by Petitioner (Pet.
App. 16a-22a). The N.C. Court of Appeals allowed
Petitioner’s reply brief in which Petitioner asserted
the summary judgment hearing provided all parties
wih the opportunity to present any and all evidence
in support of the assertions and defenses made at the
hearing (Pet. App. 16a-22a).
On May 20, 2008, the Court of Appeals entered
an order affirming the dismissal of this Tort Claim,
-23-
citing that the findings and conclusions of law are
conclusive if supported by the competent evidence,
and further finding that it was not necessary to
address the remaining assignments of error
presented by Petitioner (Pet. App. 16a-22a).
Petitioner duly, timely, and properly filed a
Notice of Appeal of Right, Petition for Discretionary
Review, and Petition for Writ of Supersedeas with
the N.C. Supreme Court again asserting violation of
constitutional right to due process, pursuant to N.C.
Gen. Stat. § 7A-30; N.C. Gen. Stat. § 7A-31; N.C.
Gen. Stat. § 7A-32 (Pet. App. 23a-25a). Respondent
filed a Motion to Dismiss the Appeal in response
(Pet. App. 23a-25a). Simultaneously upon filing and
service of same, Petitioner submitted a formal
request for public information and public records to
the Government of the United States of America and
the Government of the State of North Carolina in
order to obtain documentation and evidence relevant
to these proceedings to circumvent the suspension of
discovery (Pet. App. 26a-88a). Between June 1, 2008
and August 20, 2008, Petitioner accumulated over
2,000 pages of documentatior relevant to the factual
questions of the nature of the injury, the condition of
the facilities in question, which are owned, operated
and maintained by Respondent, the _ alleged
intentional misconduct of Respondent and _ the
renovation of certain facilities in question, which are
owned, operated and maintained by Respondent (Pet.
App. 26a-88a). Despite this pending appeal during
this correspondence exchange, Respondent referred
to this Tort Claim as “failed”. (Pet. App. 72a-73a).
On August 22, 2008, Petitioner filed a Motion for
Temporary Stay, Motion to Amend the Record on
Appeal and Motion to Expedite the Appeal, together
-24-
with 481 pages of documentation obtained in
response to the request for public information and
public records (Pet. App. 26a-71a). This
documentation, authored by Respondent, and
authorized third party private experts, showed that
Respondent had committed intentional misconduct,
which was the direct and proximate cause of injury
to Petitioner (Pet. App. 26a-71la). This
documentation further showed that the Respondent
was well aware that the hazards to which the
Petitioner was exposed were recognized and known
to be substantially certain to cause serious injury or
death, and that the hazards were such that the
general public was equally exposed (Pet. App. 26a-
71a). N.C. Supreme Court granted Respondent’s
Motion to Dismiss the Appeal and denied all of the
Petitioner’s petitions contemporaneously on
September 4, 2008 (Pet. App. 23a-25a). The North
Carolina Supreme Court is the court of last resort in
the State of North Carolina and is the court of
original and supreme appellate jurisdiction. See N.C.
Const. art. [1V; N.C. Gen. Stat. § § 74-25, 7A-26. The
order of the North Carolina Supreme Court is final,
and dismisses this matter in all respects (Pet. App.
23a-25a).
V. Relief Sought
The Petitioner seeks relief in order to mandate
the Respondent provide an accounting of the
evidence relevant to this matter and the preservation
of the record in this matter, prohibit the Respondent
from destroying any further evidence, and enjoin the
Respondent by mandatory injunction for same.
-25-
JUSTIFICATION FOR GRANT OF THIS WRIT
:. This relief sought invoived alleged due
process violations under the appellate jurisdiction
of this Court, and, appeal does not provide
adequate relief for said violations, thus urgent
and immediate extraordinary relief is required
Where this Court is presented with a question
or a violation of due process rights due to a lower
court’s abuse of discretion, this Court reviews the
entire record. Sanders v. Shell Oil Co., 678 F.2d 614
(5th Cir. 1982); Coughlin v. Lee, 946 F.2d 1152 (5th
Cir. 1991); Trevino v. Celanese Corp., 701 F.2d 397
(Sth Cir. 1983). In reviewing an order granting pre-
trial judgment, evidence, as well as outstanding
discovery, should be viewed in the lhght most
favorable to the party that opposed the motion. Hyre
v. McPonough Power Equip., Inc., 755 F.2d 416, 419
(5th Cir. 1985); Boeing Co. v. Shipman, 411 F.2d 365,
374 (5th Cir. 1969).
Federal Rule of Civil Procedure 26(b) permits
“discovery regarding any matter not privileged,
which is relevant to the subject matter in the
pending action" and discoverable information is not
limited to admissible evidence, but includes anything
"reasonably calculated to lead to the discovery of
admissible evidence." Hardy v. Chemetron Corp., 870
F.2d 1007 (5th Cir. 1989); Dunbar v. United States,
502 F.2d 506 (5th Cir. 1974). Similarly, the discovery
rules of the North Carolina Rules of Civil Procedure
guarantee that parties “may obtain’ discovery
regarding any matter, not privileged, which is
relevant to the subject matter involved in the
pending action, whether it relates to the claim or
-. .*
defense of the party seeking discovery or to the claim
or defense of any other party, including the
existence, description, nature, custody, condition and
location of any books, documents, or other tangible
things and the identity and location of persons
having knowledge of any discoverable matter’. N.C.
Gen. Stat. § 1A-1, (N.C. R. Civ. P.) Rule 26 et seq.
Courts have traditionally construed
"relevance" broadly, finding that information is
relevant if it "encompass[es] any matter that bears
on, or that reasonably could lead to other matter that
could bear on, any issue that is or may be in the
case." Oppenheimer Fund, Inc. v. Sanders, 437 U.S.
340, 98 S. Ct. 2380, 57 L. Ed. 2d 253 (1978). Thus,
although the lower courts are customarily accorded
wide discretion in handling discovery matters, this
Court will not uphold a ruling which has failed to
adhere to the liberal spirit of the discovery principles
or which results in fundamental unfairness at trial.
Burns v. Thiokol Chemical Corp., 483 F.2d 300 (5th
Cir. 1973); O'Neal v. Riceland Foods, 684 F.2d 577
(8th Cir. 1982).
In light of the federal questions presented
herein, it is clear that the N.C. Courts abused their
discretion in this matter (Pet. App. la-88a). As
demonstrated by the record, the pendency of this
appeal has not served as an adequate stay of these
proceedings (Pet. App. la-88a). The Respondent has
plainly and unequivocally represented that facilities
material to the instant action have been renovated
by Respondent during the pendency of said action
(Pet. App. 26a-88a). Further, the Respondent has not
been held to account at any point in these
proceedings to show good faith efforts to preserve
any other documentary or physical evidence relevant
-27-
to the instant action, despite the pleadings of the
Petitioner (Pet. App. 26a-88a, Record 1-299).
As discovery must provide the parties with
access to any matter not privileged relevant to the
subject matter jurisdiction of the pending action,
denial or delay of access to circumstantial evidence
that addresses any questions of subject matter
jurisdiction is a substantial prejudice of fundamental
due process rights. Tanner v. McCall, 625 F.2d 1183
(5th Cir. 1980).
In the instant case, despite the fact that the
N.C. Courts did not adjudicate the objections
presented by Petitioner, Petitioner had the burden of
proving that the exclusivity provisions of the
N.C.W.C.A. do not apply to bar this common law
claim for civil remedy (Pet. App. la-88a). To
substantiate these objections, the Petitioner was
required to provide evidence of. any intentional
misconduct of the Respondent, equal risks of injury
to the general public, and ineffectiveness of
N.C.W.C.A. as an administrative remedy (Pet. App.
la-88a).
As evidenced by the pleadings before the N.C.
Courts, the N.C. Courts should have allowed for wide
discovery to obtain the relevant circumstantial
evidence (Pet. App. 26a-88a, Record 1-299). See
Burns, Trevino v. Celanese Corp., 701 F.2d 397 (5th
Cir. 1983); Weahkee v. Norton, 621 F.2d 1080 (10th
Cir. 1980); Rich v. Martin Marietta Corp., 522 F.2d
333 (10th Cir. 1975); Marshal] v. Westinghouse
Electric Corp., 576 F.2d 588 (5th Cir. 1978).
In the instant case, the N.C. Courts did not
deny or overly restrict discovery sought by
Petitioner, but heard this matter on _ the
Respondent’s Motion for Summary Judgment before
28.
the Petitioner was provided his due process right to
obtain evidence relevant to these proceedings from
Respondent, most of which evidence is, or was, in the
exclusive control of the Respondent (Pet. App. la-
88a). It has already been shown that this evidence
was extremely relevant and critical to the
Petitioner’s objections (Pet. App. la-88a).
Furthermore, N.C. Courts took no action to preserve
the record at any time during the pendency of this
appeal (Pet. App. 1la-88a).
While the Respondent has various policies
protecting certain records and documentation held
by the Respondent, the N.C. Courts had to weigh the
policies of Respondent and_ privilege = and
confidentiality of personal information against the
need for the Petiticner to obtain evidence in
litigation. See Fed. Rule of Evid. 501; N.C. Gen. Stat.
§ 1A-1, (N.C. R. Civ. P.) Rule 26 et seq.; Brown v.
Thompson, 430 F.2d 1214 (5th Cir. 1970); Kerr v.
United States Dist. Ct. for Northern Dist., 511 F.2d
192 (9th Cir. 1975), affirmed, 426 U.S. 394, 96S. Ct.
2119, 48 L. Ed. 2d 725 (1976); Garner v.
Wolfinbarger, 430 F.2d 1093 (5th Cir. 1970), cert.
denied, 401 U.S. 974, 91S. Ct. 1191, 28 L. Ed. 2d 323
(1971); Swanner v. United States, 406 F.2d 716 (5th
Cir. 1969); Association for Reduction of Violence v.
Hall, 734 F.2d 63 (1st Cir. 1984). As evidenced by the
procedural history in this matter, most of the
relevant documentation was not privileged, but
public records (Pet. App. 26a-88a).
Given these facts, this Court has appellate
jurisdiction since the automatic stay by appeal has
not, and will not, provide adequate relief to ensure
preservation of appellate jurisdiction (Pet. App. la-
88a, Record 1-299).
-29-
II. The Petitioner has presented clear and
convincing evidence that this matter involves an
issue of public importance and _ appellate
jurisdiction will be impaired without
extraordinary relief
This Court has held that only the court having
original jurisdiction in an action has the authority to
hold a party in contempt for violation of an order or
destruction of evidence, however, the destruction of
evidence which is the subject of a matter pending on
appeal threatens the preservation of appellate
jurisdiction. Merrimack River Sav. Bank v. Clay
Center, 219 U.S. 527; 31 S. Ct. 295; 55 L. Ed. 320
(1911).
Though the Respondent is accurate in arguing
that the outcome of this appeal is only relevant to
Petitioner, the adjudication of this matter on appeal
is an issue of crucial public importance. The evidence
clearly shows that the Respondent has acknowledged
the public importance of the documentary and
physical evidence in question in both this prayer for
extraordinary rehef and the Petitioner’s
simultaneous prayer for appellate review of this
federal question. Respondent thoroughly inspected
and reported on the conditions of every facility under
the jurisdiction of the UNC System in December
1999, including the facilities maintained, owned and
operated by Respondent at NCSU, and found that
the facilities in question posed. safety risks.
Respondent closed numerous facilities owned,
operated and maintained by Respondent in 2003 and
simultaneously called for the initiation of a
numerous’ investigations into’ this’ matter.
Respondent declared a state of emergency and
-30-
modified standard protocol to remove standard
jurisdiction of the UNC System over the facilities in
question at NCCU and UNCP, and called for the
assistance of NCDHHS, NCDOA and the federal
government. Respondent ordered the temporary
relocation of residential accommodations and
educational programs to ensure the health and well
being of student, staff and faculty at NCCU and
UNCP, which conditions Petitioner has established
by competent evidence posed identical threats, risks
and hazards to Petitioner and others similarly
situated at NCSU (Pet. App. 26a-88a).
As evidenced by the record’ through
documentary and physical evidence created by
Respondent, Respondent was negligent in the
maintenance of said facilities, particularly in the
maintenance of HVAC systems, and remediation of
asbestos and lead paint. Respondent attempted to
distort, misrepresent, and misjead the Petitioner,
and others similarly situated, regarding the well
documented and _ scientifically supported health
hazards, risks and threats. Even though the
Governor called an investigation into the specific
facilities identified in the instant action, NCSU
failed to conduct the investigation, and renovated
Wood Hall during the pendency of the instant action
(Pet. App. 26a-88a).
Moreover, any modification of due process
through legislation must not violate constitutionally
protected due process rights of any party.
In hght of the foregoing, it is clear and
convincing that this matter involves an issue of
public importance, to both jurisprudence and public
health, and that appellate jurisdiction will be
impaired without immediate extraordinary relief.
i
III. As the Petitioner has exhausted all
administrative remedies and no other remedy
exists, this Court has an independent jurisdiction
to review this matter on appeal and provide the
extraordinary relief sought herein
As this action is not under the original or
appellate jurisdiction of the United States District
Court for the Eastern District of North Carolina, or
the United States Court of Appeals for the Fourth
Circuit, said courts cannot provide the extraordinary
relief sought herein (Pet. App. 1la-25a). Petitioner
has shown that Petitioner has exhausted all
administrative remedies in the N.C. Courts, and has
sought the extraordinary relief sought herein before
all courts with original and appellate jurisdiction in
the N.C. Courts, and has not received any rclief to
date (Pet. App. la-88a; Record 32-299).
It is well established that appellate
jurisdiction on a federal question passed upon by a
state court of last resort lies with this Court (Pet.
App, 23a-25a; Record 293-297). It is within the
independent jurisdiction of this Court to consider
this matter and provide necessary relief (Pet. App.
23a-25a; Record 293-297).
In hight of the foregoing, it is essential that the
relief sought herein be granted in order to prevent
further unjust prejudice against the Petitioner and to
prevent further impairment of appellate jurisdiction.
<S2-
CONCLUSION
In consideration of the foregoing, Petitioner
shows it is in the interest of justice for this Court to
provide the extraordinary relief sought herein.
This the 19th day of December 2008.
Respectfully submitted,
J. CHRISTOPHER BEY
C/O SHARON BEY-CHRISTOPHER,
ESQ@., MANAGING ATTORNEY
LEGAL AID OF NORTH CAROLINA
208 Goldsboro Street, East
P.O. Box 2688
Wilson, NC 27894-2688
(252) 360-1982
Petitioner, Pro Se
|
APPENDIX
-48-
APPENDIX A
NORTH CAROLINA INDUSTRIAL COMMISSION
No. TA-19383
J. KAMAU CHRISTOPHER a/k/a
JOSEPH KAMAU CHRISTOPHER BEY,
PLAINTIFF
Vv.
NORTH CAROLINA STATE UNIVERSITY, ET AL.,
DEFENDANT
DECISION AND ORDER
BEFORE WANDA BLANCHE TAYLOR,
DEPUTY COMMISSIONER
BY WANDA BLANCHE TAYLOR,
DEPUTY COMMISSIONER
FILED FEBRUARY 29, 2007
-fm-
Based on the forecast of evidence by the parties at
the November 9, 2006 hearing, and_ the
representations of the parties and evidence of record,
the Undersigned makes the following
Findings of Fact
1. Plaintiff filed his Tort Claim Affidavit, Form
T-1, on December 30, 2005, with the Industrial
Commission alleging, in pertinent part, that during
September through November 2003, he was an
employee and Resident Advisor for Defendant, and
allegedly was exposed to a “substandard and
unhealthy indoor environment, primarily mold, in
Wood Hall”.
2. Defendant timely answered and moved to
dismiss Plaintiffs tort claim on basis that it was
barred by the North Carolina Workers’
Compensation Act, and that Plaintiffs exclusive
remedy was to file a Workers’ Compensation claim.
3. Defendant also filed a motion for summary
judgment, which was heard before the Undersigned
in Raleigh on November 9, 2006.
4. Attached to Defendant’s motion for summary
judgment was a sworn Affidavit of Timothy S. Blarr,
Associate Director of University Housing for
Defendant, with Exhibits.
5. The sworn statements made by Mr. Blair in
his Affidavit are found to be credible and competent
evidence in a summary judgment proceeding, along
with the documents and exhibits attached to the
-3a-
motion, and the same are incorporated into this
Decision and Order by reference and made findings
of fact as if set cut fully herein.
6. Plaintiff was employed with Defendant as a
Resident Advisor during the time period that
Plaintiff allegedly was exposed to a mold; Plaintiff
was compensated financially for residing in the
residence hall where he allegedly was exposed to
mold; and Plaintiff would not have resided in Wood
Hall but for his employment status as a Resident
Advisor with Defendant.
7 An employment relationship existed between
Plaintiff and Defendant at the time Plaiatiff was
allegedly exposed to the allegedly “substandard and
unhealthy indoor environment” set out in Plaintiffs
Tort Claim Affidavit.
8. Plaintiff did not submit to the court any sworn
Affidavits by witnesses, or any other competent
evidence during the summary judgment hearing, to
rebut Defendant’s contention that Plaintiff was an
employee of Defendant at all relevant times.
Based on the foregoing Findings of Fact, the
Undersigned makes the following
Conclusions of Law
: Summary Judgment is appropriate when “the
pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if
any, who that there is no genuine issue as to any
material fact and that any party is entitled to a
-49-
judgment as a matter of law.” N.C. Gen. Stat. § 1A-
1, Rule 56(c). In making this determination, “the
evidence presented by the parties must be viewed in
the light most favorable to the nen-movant.” ruce-
Terminix Co. v. Zurich tis. Co., 1830 N.C. App. 729,
733, 504 S.E.2d 574, 57% (1998).
- The party moving for summary judgment has
the burden of establishing the absence of any triable
issue of fact, which may be satisfied by showing that
the party cannot overcome an affirmative defense
which would bar the claim. Vay/or v. Ashburn, 112
N.C. App. 604, 606-607, 436 S.E.2d 276, 278 (1993),
cert. denied, 336 N.C. 77, 445 S.E.2d 46 (1994).
3. The moving party meets this burden if it can
show that an essential element of the nonmoving
party’s claim does not exist, or that the nonmoving
party cannot produce evidence of an _ essential
element of his claim, or cannot overcome an
affirmative defense which would bar the claim. Once
the party moving for summary judgment mects its
burden, it is the nonmoving party’s burden to
produce a forecast of evidence showing that it will be
able to establish at least a prima facie case at trial.
Forsyth Mem. Hosp. v. Armstrong World Indus., Inc.,
122 N.C. App. 413, 470 S.E.2d 826 (1996).
4. Under the Tort Claims Act, the State has
expressly waived its sovercign immunity in certain
circumstances. N.C. Gen. Stat. §§ 143-291, 143-297.
This waiver of immunity shall be strictly construed.
Floyd v. N.C. State Highway Comm'n,, 241 N.C. 461,
464, 85 S.E.2d 703, 705 (1955). ‘The Industrial
Commission has jurisdiction under N.C. Gen. Stat. §
-5a-
143-291, et seq., to hear tort claims arising as a
result of the alleged negligence of an officer,
employee, involuntary servant, or agent of the State
while acting within the scope of his employment or
agency, or authority under circumstances where the
State, if a private person, would be hable to the
Plaintiff under state laws. Guthrie v. North Carolina
State Ports Auth., 307 N.C. 522, 299 S.E.2d 618
(1983).
5. The question of whether an_ employer-
employee relationship exists is jurisdictional. Askew
v. Leonard Tire Co., 264 N.C. 168, 141 S.E.2d 280
(1965). “An employee is one who works for another
for wages or salary, and the right to demand pay for
his services from his employer would seem to be
essential to his right to receive compensation under
the act.” Lucas v. Li] Gen. Stores, 289 N.C. 212, 221
S.E.2d 257 (1976). “When an inmate is injured while
working at his prison job, his exclusive remedy for
any injury is a workers’ compensation claim... .”
Vereen v. N.C. Dep't of Corr., 168 N.C. App. 588, 608
S.E.2d 412 (2005).
6. In claims by employees involving injuries by
accident arising out of and in the course of
employment, and occupational illnesses allegedly
contracted through employment, a plaintiffs
exclusive remedy is to file a claim under the North
Carolina Workers’ Compensation Act. N.C. Gen.
Stat. § 97-10.1 (2006); See also Ay/es v. Durham Co.
Hosp. Corp., 107 N.C. App. 455, 420 S.E.2d 487, cert.
denied, 333 N.C. 169, 424 S.E.2d 406 (1992) (holding
that college respiratory therapist student was
limited to Workers Compensation remedy in slip and
fall at college).
io Defendant has met its burden of proof by
forecasting sufficient, competent evidence to show
that Plaintiff was an employee of Defendant at the
time he was allegedly exposed to a “harmful” indoor
environment, which in turn allegedly caused him to
sustain a respiratory illness.
8. Plaintiff has failed to forecast sufficient,
competent evidence to show that the Industrial
Commission has subject-matter jurisdiction to hear
Plaintiffs claim under the Tort Claims Act. Plaintiff
has further failed to show there is a genuine issue as
to a material fact.
9. Though the Undersigned makes _ no
determination as to the merits of Plaintiffs claim,
Plaintiffs exclusive remedy is to seek recourse under
the North Carolina Workers’ Compensation Act.
10. Plaintiffs Tort Claim should be dismissed with
prejudice.
Based on the foregoing Findings of Fact and
Conclusions of Law, the Undersigned makes the
following . . . Decision and Order: ... 1. Plaintiff's
Tort Claim is dismissed with prejudice. . . . 2.
Plaintiff shall pay the costs of this matter. ... 3. This
Tort Claim is taken off of the active docket.
/s| WANDA BLANCHE TAYLOR
-7a:
APPENDIX B
NORTH CAROLINA INDUSTRIAL COMMISSION
No. TA-19383
J. KAMAU CHRISTOPHER a/k/a
JOSEPH KAMAU CHRISTOPHER BEY,
PLAINTIFF
Vv.
NORTH CAROLINA STATE UNIVERSITY, ET AL.,
DEFENDANT
DECISION AND ORDER
BEFORE THE FULL COMMISSION REVIEW
PANEL, CHRISTOPHER SCOTT, PANEL
CHAIRMAN AND COMMISSIONER, BUCK
LATTIMORE, CHAIR AND COMMISSIONER, AND
DIANNE C. SELLERS, COMMISSIONER
BY CHRISTOPHER SCOTT, COMMISSIONER
FILED AUGUST 10, 2007
-8a-
Based upon all of the competent evidence of record
and reasonable inferences flowing therefrom, the
Full Commission makes the following
Findings of Fact
1. The Plaintiff filed his Tort Claim Affidavit,
Form T-1, on December 30, 2005, with the Industrial
Commission alleging, in pertinent part, that during
September through November 2003, he was an
employee and Resident Advisor for Defendant, and
allegedly was exposed to a “substandard and
unhealthy indoor environment, primarily mold, in
Wood Hall”.
2. The Defendant timely answered and moved to
dismiss Plaintiffs tort claim on basis that it was
barred by the North Carolina Workers’
Compensation Act, and that Plaintiffs exclusive
remedy was to file a Workers’ Compensation claim.
3. The Defendant also filed a motion for
summary judgment, which was heard before the
[North Carolina Industrial Commission] on
November 9, 2006.
4, Attached to Defendant’s motion for summary
judgment was a sworn Affidavit of Timothy S. Blair,
Associate Director of University Housing for
Defendant, with Exhibits. The sworn statements
made by Mr. Blair in his Affidavit are found to be
credible and competent evidence in a summary
judgment proceeding.
-Qa-
al
5. Based upon the evidence of record, the Full
Commission finds that the Plaintiff was employed
with the Defendant as a Resident Advisor during the
time period that the Plaintiff allegedly was exposed
to a mold. The Full Commission further finds that
the Plaintiff was compensated financially for residing
in the residence hall where he allegedly was exposed
to mold. Moreover, the Plaintiff would not have
resided in Wood Hall but for his employment status
as a Resident Advisor with Defendant.
6. The Full Commission finds that = an
employment relationship existed between’ the
Plaintiff and the Defendant at the time Plaintiff was
allegedly exposed to the allegedly “substandard and
unhealthy indoor environment” set out in Plaintiff's
Tort Claim Affidavit.
Vs The Full Commission finds that the Plaintiff
has not provided sufficient evidence to rebut the
Defendant’s contention that the Plaintiff was an
employee of the Defendant at all relevant times.
Based on the foregoing Findings of Fact, the Full
Commission reaches the following
Conclusions of Law
:, Summary Judgment is appropriate when “the
pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if
any, who that there ts no genuine issue as to any
material fact and that any party is entitled to a
judgment as a matter of law.” N.C. Gen. Stat. § 1A-
1, Rule 56(c). In making this determination, “the
-10a-
evidence presented by the parties must be viewed in
the hght most favorable to the non-movant.” Bruce-
Terminix Co. v. Zurich Ins. Co., 130 N.C. App. 729,
733, 504 S.E.2d 574, 577 (1998).
2. The party moving for summary judgment has
the burden of establishing the absence of any triable
issue of fact, which may be satisfied by showing that
the party cannot overcome an affirmative defense
which would bar the claim. TZaylor v. Ashburn, 112
N.C. App. 604, 606-607, 436 S.E.2d 276, 278 (1993),
cert. denied, 336 N.C. 77, 445 S.E.2d 46 (1994). The
moving party meets this burden if it can show that
an essential element of the nonmoving party’s claim
does not exist, or that the nonmoving party cannot
produce evidence of an essential element of his claim,
or cannot overcome an affirmative defense which
would bar the claim. Id. The defendant has met its
burden of proof by forecasting sufficient, competent
evidence to show that the plaintiff was an employee
of the defendant at the time he was allegedly exposed
to a “harmful” indoor environment, which in turn
allegedly caused him to sustain a respiratory illness.
Id.
3. Once the party moving for summary judgment
meets its burden, it is the nonmoving party’s burden
to produce a forecast of evidence showing that it will
be able to establish at least a prima facie case at
trial. Forsyth Mem. Hosp. v. Armstrong World
Indus., Inc., 122 N.C. App. 413, 470 S.E.2d 826
(1996). The plaintiff has failed to forecast sufficient,
competent evidence to rebut the defendant’s
evidence, and has failed to show that the Plaintiff
-lla-
was not an employee of the defendant at the time of
the alleged exposure. Id.
4. Under the Tort Claims Act, the State has
expressly waived its sovereign immunity in certain
circumstances. N.C. Gen. Stat. §§ 143-291, 1438-297.
This waiver of immunity shall be strictly construed.
Floyd v. N.C. State Highway Comm'n, 241 N.C. 461,
464, 85 S.E.2d 703, 705 (1955). The Industrial
Commission has jurisdiction under N.C. Gen. Stat. §
143-291, et seq., to hear tort claims arising as a
result of the alleged negligence of an _ officer,
employee, involuntary servant, or agent of the State
while acting within the scope of his employment or
agency, or authority under circumstances where the
State, if a private person, would be liable to the
Plaintiff under state laws. Guthrie v. North Carolina
State Ports Auth., 307 N.C. 522, 299 S.E.2d 618
(1983). The plaintiff has failed to forecast sufficient,
competent evidence to show that the Industrial
Commission has subject-matter jurisdiction to hear
the plaintiffs claim under the Tort Claims Act. Id.
The plaintiff has further failed to show there is a
genuine issue as to a material fact. N.C. Gen. Stat. §
1A-1, Rule 56(c).
5. The question of whether an _ employer-
employee relationship exists is jurisdictional. Askew
v. Leonard Tire Co., 264 N.C. 168, 141 S.E.2d 280
(1965). “An employee is one who works for another
for wages or salary, and the right to demand pay for
his services from his employer would seem to be
essential to his mght to receive compensation under
the act.” Lucas v. Li] Gen. Stores, 289 N.C. 212, 221
S.E.2d 257 (1976).
6. In claims by employees involving injuries by
accident arising out of and in the course of
employment, and occupational illnesses allegedly
contracted through employment, a_ plaintiffs
exclusive remedy is to file a claim under the North
Carolina Workers’ Compensation Act. N.C. Gen.
Stat. § 97-10.1 (2006); See also Ryles v. Durham Co.
Hosp. Corp., 107 N.C. App. 455, 420 S.E.2d 487, cert.
denied, 333 N.C. 169, 424 S.E.2d 1406 (1992) (holding
that college respiratory therapist student was
limited to Workers’ Compensation remedy in slip and
fall at college).
3 Based on the competent evidence of record, the
Full Commission concludes that the plaintiff's
present tort claim should be dismissed with
prejudice. N.C. Gen. Stat. § 143-291 et seq. Though
the Full Commission makes no determination as to
the merits of the Plaintiffs claim, the Full
Commission concludes that the Plaintiffs exclusive
remedy is to seek recourse under the North Carolina
Workers’ Compensation Act. N.C. Gen. Stat. § 97-1
et seq. The Plaintiff shall be granted leave to duly
file a workers’ compensation claim pursuant to the
Workers’ Compensation Act within one year of the
entry of this Order. Id.
8. Plaintiffs Tort Claim should be dismissed with
prejudice.
Based on the foregoing Findings of Fact and
Conclusions of Law, the Full Commission enters the
following
Order:
‘. The Plaintiffs Tort Claim must be, and is
hereby, dismissed with prejudice.
2. The Plaintiff is hereby granted leave to duly
file a workers’ compensation claim with the
Industrial Commission pursuant to the N.C.
Workers’ Compensation Act within one year of the
entry of this Order.
3. Plaintiff shall pay the costs of this matter.
This the 23rd day of July 2007.
/si CHRISTOPHER SCOTT
CONCURRING:
/s' BUCK LATTIMORE
/s/ DIANNE C. SELLERS
-l4a-
APPENDIX C
COURT OF APPEALS OF NORTH CAROLINA
GENERAL COURT OF JUSTICE OF
NORTH CAROLINA
No. COA P07-907
J. KAMAU CHRISTOPHER a/k/a
JOSEPH KAMAU CHRISTOPHER BEY,
PLAINTIFF-APPELLANT-PETITIONER
Vv.
NORTH CAROLINA STATE UNIVERSITY, E'T AL.,
DEFENDANT-APPELLEE-RESPONDENT
ORDERS
BEFORE THE
COURT OF APPEALS OF NORTH CAROLINA
FILED NOVEMBER 14, 2007
-15a-
The petition filed in this cause on the 30th day of
October 2007 and designated “Petition for Writ of
Mandamus’ is denied.
The petition filed in this cause on the 30th day of
October 2007 and_= designated “Petition for
Prohibition” is denied.
The petition filed in this cause on the 30th day of
October 2007 and designated “Petition for Writ of
Supersedeas” is denicd.
By order of the Court this the 14th day of November
2007.
(Orders certified by]
/s/ JOHN H. CONNELL
CLERK OF [COURT]...
NORTH CAROLINA COURT OF APPEALS
-16a-
APPENDIX D
COURT OF APPEALS OF NORTH CAROLINA
GENERAL COURT OF JUSTICE OF
NORTH CAROLINA
No. COA 07-1516
J. KAMAU CHRISTOPHER a/k/a
JOSEPH KAMAU CHRISTOPHER BEY,
PLAINTIFF-APPELLANT
Vv.
NORTH CAROLINA STATE UNIVERSITY, ET AL.,
DEFENDANT-APPELLEE
OPINION
BEFORE
TYSON, MCCULLOUGH and STROUD, Judges
BY TYSON, Judge
FILED MAY 20, 2008
-17a-
Appeal by plaintiff from decision and order
entered 10 August 2007 by Commissioner
Christopher Scott for the North Carolina Industrial
Commission.
Heard in the Court of Appeals 1 May 2008.
[Appearances are] Joseph Kamau Christopher Bey,
pro se, for plaintiff-appellant [and] Attorney General
Roy Cooper, by Assistant Attorney General Dahr
Joseph Tanoury, for the defendant-appellee.
J. Kamau Christopher (“plaintiff’) appeals
from the Full Commission of the North Carolina
Industrial Commission’s (“the Commission”) order
dismissing his tort claim action against North
Carolina State University (“defendant”). We affirm.
I. Background
Plaintiff was enrolled as a student at North
Carolina State University from August 1999 to May
2004. In July 2002, plaintiff enlisted in the U.S.
Naval Reserve and attained the status of serving as
an Active Duty member in the Nuclear Propulsion
Officer Candidate Program. Plaintiffs initial!
enlistment physical revealed he was “fit for full
service.” In August 2002, plaintiff was hired as a
Resident Advisor for Wood Residence Hall (‘Wood
Hall’) for the 2002-2003 term. Plaintiff was
subsequently rehired as Resident Advisor for the
following 2003-2004 term. On 18 September 2008,
plaintiff resigned from his position due to “mold and
mildew growing in visible areas in the living space of
residents |sic| and a lack of responsiveness from the
University Administration[.]” In November 20038,
plaintiff was diagnosed with a permanent asthmatic
and respiratory condition. Despite these medical
-18a-
conditions, plaintiff was granted a waiver by the
Navy Recruiting Command. After graduation,
plaintiff was transferred to the Naval Air Station in
Pensacola, Florida. Upon plaintiffs arrival, a
commissioning physical was conducted, plaintiff's
medical waiver was revoked, and further analysis of
plaintiffs medical condition and fitness to serve was
ordered.
Such analysis revealed plaintiffs respiratory
condition had further pr gressed. On 5 May 2005,
the Navy Medical Command Physical Evaluation
Board issued an order finding plaintiff had acquired
a medical condition, asthma, which was a physically
disqualifying factor. Plaintiff was released from his
military obligation with an honorable discharge,
which terminated his commitment five years early.
On 30 December 2005, plaintiff filed an
affidavit under the Tort Claims Act alleging he was
damaged in the amount of $150,000.00 from
“exposure to substandard and unhealthy indoor
environment” while he was employed as a Resident
Advisor in Wood Hall. On 9 March 2006, defendant
filed a motion to dismiss and answer. Defendant
asserted plaintiff alleged he was injured while
employed with defendant and therefore his exclusive
remedy was to assert a claim under the North
Carolina Workers’ Compensation Act.
On 20 July 2006, defendant filed a motion for
summary judgment. Plaintiff filed a response to
defendant's motion for summary judgment and
asserted plaintiffs injury “did not arise out of and in
the course of employment, nor is the injury
compensable under the North Carolina Workers’
Compensation Act, and thus the Plaintiff... can
only seek compensation for damages under the Tort
-19a-
Claims Act as filed.” On 9 February 2007, Deputy
Commissioner Wanda Taylor filed an _ order
dismissing plaintiffs tort claim with prejudice and
entered the following conclusions:
7. Defendant has met its burden of proof
by forecasting sufficient, competent evidence
to show that Plaintiff was an employee of
Defendant at the time he was allegedly
exposed to a “harmful” indoor environment,
which in turn allegedly caused him to sustain
a respiratory illness.
8. Plaintiff has failed to forecast sufficient,
competent evidence to rebut Defendant’s
evidence, and has failed to show that Plaintiff
was not an employee of Defendant at the time
of the alleged exposure.
9, Plaintiff has failed to forecast sufficient,
competent evidence to show that the
Industrial Commission has_ subject-matter
jurisdiction to hear Plaintiffs claim under the
Tort Claims Act. Plaintiff has further failed to
show there is a genuine issue as to a material
fact.
On 10 August 2007, the Full Commission
affirmed the Deputy Commissioner’s order and
dismissed plaintiffs tort claim with prejudice.
Plaintiff appeals.
-20a-
Il. Issues
Plaintiff argues the Industrial Commission
erred by: (1) failing to make findings of fact
concermng all crucial issues, including the alleged
injury; (2) hearing defendant’s motion for summary
judgment and finding no genuine issues of material
fact exist; and (3) dismissing plaintiffs tort claim
based upon the assertion that a claim under the
Nortn Carolina Workers’ Compensation Act was
plaintiff's exclusive remedy.
Ill. Standard of Review
{[Wjhen reviewing (Industrial Commission
decisions, appellate courts must examine whether
any competent evidence supports the Commission’s
findings of fact and whether those findings
support the Commission’s conclusions of law. The
Commission’s findings of fact are conclusive on
appeal when supported by such competent evidence,
even though there is evidence that would support
findings to the contrary. McRae v. Toastmaster, Inc.,
358 N.C. 488, 496, 597 S.E.2d 695, 700 (2004)
(internal quotations omitted). However, our
Supreme Court has_ repeatedly held “that
jurisdictional facts found by the _ Industrial
Commission, even when supported by competent
evidence, are not binding upon the courts on appeal,
and that the reviewing court has the duty to make its
own independent findings.” Lemmerman v. Williams
Oil Co., 318 N.C. 577, 580, 350 S.E.2d 83, 86 (1986)
(citations omitted).
IV. Subject Matter Jurisdiction
-21a-
The dispositive issue before us is whether the
North Carolina Workers’ Compensation Act provides
plaintiff his exclusive remedy for his alleged injury
and divests the Industrial Commission of subject
matter jurisdiction to adjudicate plaintiffs tort claim.
The determinative factor that subjects the
parties to the provisions of the North Carolina
Workers’ Compensation Act is whether an employee-
employer relationship exists. Cox v. Transportation
Co., 259 N.C. 38, 42, 129 S.E.2d 589, 592 (1963); see
also Askew v. Tire Co., 264 N.C. 168, 170, 141 S.E.2d
280, 282 (1965) (“The question whether the
employer-employee relationship exists is clearly
jurisdictional.”).
Here, plaintiff conceded numerous times in his
pleadings and before the Industrial Commission that
he was an employee of defendant while he attended
classes during the 2002-20038 school term and briefly
for the 2003-2004 term. Plaintiff specifically states in
his Response to Defendant’s Motion for Summary
Judgment, “Plaintiff admits and acknowledges that
his relationship with the Defendant included a
employer-employee arrangement, as defined by the
Statutes, and thus he was employed with the
Defendant during a period in which the alleged
injury manifested itself[] ....”
It is well settled in this jurisdiction that the
North Carolina Workers’ Compensation Act is the
exclusive remedy when an employee is injured by
accident arising out of and in the course and scope of
employment. Wood v. Guulford Cty., 355 N.C. 161,
164, 558 S.E.2d 490, 493 (2002) (citing N.C. Gen.
Stat. § 97-10.1).
-22a-
Because the North Carolina Workers’
Compensation Act is plaintiff's exclusive remedy for
the alleged injury that occurred during his
employment, the Industrial Commission properly
dismissed plaintiffs tort claim with prejudice. This
assignment of error is overruled. In hght of our
holding, it is unnecessary to address plaintiff's
remaining assignments of error.
\
V. Conclusion
The North Carolina Workers’ Compensation
Act provides plaintiffs exclusive remedy for his
alleged injury that arose out of and in the course and
scope of employment. The Industrial Commission’s
order dismissing plaintiffs tort claim with prejudice
is affirmed.
Affirmed.
Judges MCCULLOUGH and STROUD concur.
-23a-
APPENDIX E
SUPREME COURT OF NORTH CAROLINA
GENERAL COURT OF JUSTICE OF
NORTH CAROLINA
No. 246-P07
J. KAMAU CHRISTOPHER a/k/a
JOSEPH KAMAU CHRISTOPHER BEY,
PLAINTIFF-APPELLANT-PETITIONER
ws
NORTH CAROLINA STATE UNIVERSITY, ET AL.,
DEFENDANT-APPELLEE-RESPONDENT
ORDERS
BEFORE
SUPREME COURT OF NORTH CAROLINA
BY HUDSON, JUDGE
FILED SEPTEMBER 4, 2008
-24a-
Upon consideration of the notice of appeal from the
North Carolina Court of Appeals, filed by the
Plaintiff on the 30th day of May 2008 in this matter
pursuant to G.S. 7A-30, and the motion to dismiss
the appeal for lack of substantial constitutional
question filed by the Defendant, the following order
was entered and is hereby certified to the North
Carolina Court of Appeals: the motion to dismiss the
appeal is “Allowed by order of the Court in
conference, this the 26th day of August 2008. /s/
Hudson, J.; [flor the Court.”
Upon consideration of the petition filed on the 30th
day of May 2008 by Plaintiff in this matter for
discretionary review of the decision of the North
Carolina Court of Appeals pursuant to G.S. 7A-31,
the following order was entered and is hereby
certified to the North Carolina Court of Appeals:
“Denied by order of the Court in conference, this the
26th day of August 2008. /s/ Hudson, J.; [flor the
Court.”
Upon consideration of the petition filed by Plaintiff
on the 30th day of May 2008 for Writ of Supersedeas
of the judgment of the Court of Appeals, the
following order was entered and is hereby certified to
the North Carolina Court of Appeals: “Denied by
order of the Court in conference, this the 26th day of
August 2008. /s/ Hudson. J.; [f]or the Court.”
The following order has been entered on the motion
filed on the 22nd day of August 2008 by Plaintiff for
Temporary Stay: “Motion Denied by order of the
Court in conference this the 26th day of August 2008.
/s/ Hudson, J.; [flor the Court.”
The following order has been entered on the motion
filed on the 22nd day of August 2008 by Plaintiff to
Amend the Record on Appeal: “Motion Denied by
order of the Court in conference this the 26th day of
August 2008. /s/ Hudson, J.; [flor the Court.”
The following order has been entered on the motion
filed on the 22nd day of August 2008 by Plaintiff to
Expedite Appeal: “Motion Denied by order of the
Court in conference this the 26th day of August 2008.
/s/ Hudson, J.; [flor the Court.”
WITNESS my hand and the seal of the Supreme
Court of North Carolina, this the 4th day of
September 2008.
Christie Speir Cameron
Clerk, Supreme Court of North Carolina
/si SHAULA A. BRANNAN
Assistant Clerk
-26a-
APPENDIX F
SUPREME COURT OF NORTH CAROLINA
GENERAL COURT OF JUSTICE OF
NORTH CAROLINA
No. 246-P07
J. KAMAU CHRISTOPHER a/k/a
JOSEPH KAMAU CHRISTOPHER BEY,
PLAINTIFF-APPELLANT-PETITIONER
Vv.
NORTH CAROLINA STATE UNIVERSITY, ET AL.,
DEFENDANT-APPELLEE-RESPONDENT
PLAINTIFF-APPELLAN'T-PETITIONER’S
MOTION FOR TEMPORARY STAY,
MOTION TO AMEND THE RECORD, AND
MOTION TO EXPEDITE THIS APPEAL
APPEAI, FROM
NORTH CAROLINA INDUSTRIAL COMMISSION,
NO. TA-19383
FILED AUGUST 22, 2008
-27a-
PETITION AND MOTION FOR TEMPORARY
STAY
TO THE HONORABLE SUPREME COURT OF
NORTH CAROLINA:
NOW COMES the Pilaintiff-Appellant,
JOSEPH KAMAU CHRISTOPHER BEY (hereinafter
the “Plaintiff’), pursuant to Rules 8, 23 and 37 of the
North Carolina Rules of Appellate Procedure, and
hereby respectfully requests, petitions, and moves
the Honorable Supreme Court of North Carolina to
grant the Plaintiff an order for temporary stay. The
Plaintiff makes this Motion for Temporary Stay on
grounds that evidence was recently obtained showing
that the Defendant-Appellee, NORTH CAROLINA
STATE UNIVERSITY (hereinafter the “Defendant”),
has destroyed evidence relevant to these proceedings,
and may destroy additional evidence relevant to
these proceedings in the future. The Plaintiff shows
that this Supreme Court is the proper venue for this
Motion and that the Plaintiffs Petition for Writ of
Supersedeas is currently pending before this
Supreme Court. As this Motion for Temporary Stay
is filed and served by separate paper, the Plaintiff
shows that this Motion is filed and served in the
same manner as a Petition for Writ of Supersedeas.
To further show good cause in support of this motion,
the Plaintiff shows that the dismissal of this claim
before the North Carolina Industrial Commission
without a ruling upon the Plaintiffs Motion to
Compel the Defendant to Respond to the Plaintiff's
Discovery Request makes it impracticable to seek a
stay in any other manner. Further, the order
granting the Defendant's Motion to Suspend
-28a-
Discovery, pending judgment on the Defendant’s
Motion for Summary Judgment, was dissolved at the
time of the dismissal, leaving this matter without
controlling judicial judgment. This Motion for
Temporary Stay is further supported by the following
incorporated Memorandum of Law.
MOTION TO AMEND THE RECORD ON APPEAL
TO THE HONORABLE SUPREME COURT OF
NORTH CAROLINA:
In addition, the Plaintiff, pursuant to Rules 9
and 37 of the North Carolina Rules of Appellate
Procedure, hereby respectfully requests, petitions
and moves the Supreme Court of North Carolina to
grant an order allowing the Plaintiff to amend the
Record on Appeal in this matter. In support of this
Motion, Plaintiff shows unto the North Carolina
Supreme Court that the portions of the trial court
record that were not relevant in these appellate
proceedings at the time of the notice of appeal to the
North Carolina Court of Appeals is now relevant due
to the evidence obtained revealing questionable
conduct of the Defendant in this matter. This Motion
to Amend the Record on Appeal is further supported
by the following incorporated Memorandum of Law.
MOTION TO EXPEDITE THIS APPEAL
TO THE HONORABLE SUPREME COURT OF
NORTH CAROLINA:
The Plaintiff, pursuant to Rules 37 of the
North Carolina Rules of Appellate Procedure, hereby
-29a-
respectfully requests, petitions and moves the
Supreme Court of North Carolina to expedite all
matters relating to this appeal. In support of this
petition, the Plaintiff shows that the Plaintiff has
suffered immediate and irreparable harm which
prejudices the rights of the Plaintiff in this matter
before the Plaintiff could duly be heard in opposition,
and the appeal bond submitted herewith is not
adequate security to prevent further prejudice and
any additional immediate and irreparable harm. To
show good cause in support of this Motion, the
Plaintiff shows that a Notice of Appeal of Right,
Petition for Discretionary Review, and Petition for
Writ of Supersedeas are before the North Carolina
Supreme Court, however, the Plaintiff has obtained
evidence that the Defendant has destroyed evidence
relevant to this matter in the midst of a suspension
of discovery. ‘This Motion to Expedite this Appeal is
further supported by the following incorporated
Memorandum of Law.
MEMORANDUM OF LAW IN SUPPORT OF
PLAINTIFF-APPELLANT’S PETITION AND
MOTION FOR TEMPORARY STAY,
MOTION 'TO AMEND 'THE RECORD ON APPEAL,
AND MOTION TO EXPEDITE THIS APPEAL
STATEMENT OF THE CASE
Whereas this Motion for Temporary Stay is
submitted pursuant to Rule 23 of the North Carolina
Rules of Appellate Procedure, and whereas the
Plaintiffs Notice of Appeal, Petition for Discretionary
Review, and Petition for Writ of Supersedeas, filed
and served 29 May 2008, is currently pending before
-30a-
this Supreme Court (hereinafter the “Plaintiffs
Notice of Appeal’), the Statement of the Case and the
Statement of the Facts in the Plaintiff's Notice of
Appeal is incorporated herein by reference.
Reference is also made to the Defendant’s Response
to the Plaintiffs Notice of Appeal and _ the
Defendant’s Motion to Dismiss the Plaintiffs Appeal,
filed and served 11 June 2008 (hereinafter the
“Defendant’s Motion to Dismiss’).
Simultaneously upon, the filing and service of
the Plaintiffs Notice of Appeal on 29 May 2008, the
Plaintiff duly served public information requests,
pursuant to the Public Records Law, Chapter 132 of
the North Carolina General Statutes (hereinafter the
“Public Information Requests”), upon the Defendant,
the Governor of the State of North Carolina
(hereinafter the “Governor’), the North Carolina
Department of Health and Human _ Services
(hereinafter “NCDHHS”), the North Carolina
Department of Administration (hereinafter
“NCDOA”), and the University of North Carolina
System General Administration (hereinafter the
“UNC System”), the North Carolina Department of
Labor (hereinafter “NCDOL”’), the North Carolina
Department of Insurance (hereinafter “NCDOI”), and
the North Carolina Department of Cultural
Resources (hereinafter “NCDOCR”), among other
public agencies in the Government of the State of
North Carolina (hereinafter collectively veferred to as
the “State Government’). In response to this Public
Information Request, the State Government has
confirmed that the Defendant destroyed evidence
relevant to these proceedinys.
STATEMENT OF THE FACTS
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Notwithstanding that which is incorporated
herein by reference, following the filing of this claim
with the North Carolina Industrial Commission, the
Defendant announced the renovation of a certain
facility designated as Building Number 112 at North
Carolina State University (hereinafter the
“University”, when referring to facilities, the campus,
and the community of student, staff and faculty,
excluding lable principals, agents and officers of the
State Government), also known as Wood Hall
(hereinafter “Wood Hall’), on 31 January 2006 (See
Plaintiffs Notice of Appeal) (R pp. 32-61, 108-127).
Throughout these proceedings, both before the North
Carolina Industrial Commission and the North
Carolina Court of Appeals, the Plaintiff moved for
intervention and injunctive relief, citing the
scheduled renovation and the suspension of discovery
as a potential obstruction of justice, destruction of
evidence and substantial prejudice, violation and
disenfranchisement of the rights of the Plaintiff in
this matter (See Plaintiffs Notice of Appeal) (R pp.
32-61, 108-127, 220-223, 227-250, 262-269, 280, 283-
285). Both the North Carolina Industrial
Commission and the Court of Appeals ignored or
denied all of the motions submitted by the Plaintiff
for relief (See Plaintiffs Notice of Appeal, and
Christopher v. N.C. State Univ., No. COA07-1516,
ship op. (N.C. Ct. App. 20 May 2008) (R pp. 220-223,
262-267).
Simultaneously upon filing the Plaintiff's
Notice of Appeal, the Plaintiff duly served the
Defendant and the State with the Public Information
Request (See Exhibit 25). NCDHHS and NCDOA
provided extensive documentation regarding
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maintenance and record retention practices in the
UNC System (See Exhibits 1, 2, 3, 4, 5, 6, 9, 10, 11,
13, 14, 15, 16, 18, 20, 21, 22, 23, and 26). NCDOCR
provided the record retention and _ disposition
schedule for the UNC system (See Exhibits 24 and
29). The Plaintiff referenced or presented various
documentation before the North Carolina Industrial
Commission through discovery responses and with
the Plaintiffs Motion to Compel in 2006 relevant to
this Motion (See Exhibits 7, 8, 12, and 19). These
documents were excluded from the Record on Appeal
as the subject of this Appeal was not the conduct of
the Defendant. On 24 July 2008, the Defendant
responded with a letter, from Vice Chancellor
Charles Leffler, stating that Wood Hall was
renovated in various projects, including, but not
limited to, replacement of the roof, and installation of
new heating, ventilation, and air conditioning
controls, and a comprehensive modernization (See
Exhibit 28). The Defendant also presented copied of
a report on investigation from 2004 (See Exhibit 17).
JUSTIFICATION FOR THE MOTION’ FOR
TEMPORARY STAY
Pursuant to Rule 23 of the North Carolina
Rules of Appellate Procedure, a Motion for
Temporary Stay is appropriate upon the submission
of an application for writ of Supersedeas. An
application for Writ of Supersedeas is appropriate “to
stay the execution or enforcement of any judgment,
order, or other determination of a trial tribunal
which is not automatically stayed by the taking of
appeal when an appeal has been taken or a petition
for mandamus, prohibition, or certiorari has been
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filed to obtain review of the judgment, order, or other
determination; and (i) a stay order or entry has been
sought by the applicant by deposit of security or by
motion in the trial tribunal and such order or entry
has been denied or vacated by the trial tribunal, or
(11) extraordinary circumstances make it
impracticable to obtain a stay by deposit of security
or by application to the trial tribunal for a stay
order.” A motion for temporary stay 1s appropriate in
order to immediately stay the proceedings pending
the ruling on the Petition for Writ of Supersedeas.
The Plaintiff shows that the Plaintiff filed a
Motion to Compel the Defendant to respond to the
Plaintiffs Discovery Request with the North
Carolina Industrial Commission in timely and proper
response to the Defendant’s Motion for Summary
Judgment and Motion to Suspend Discovery (R pp.
32-175). In the Plaintiffs Motion to Compel and the
Plaintiffs Response to the Defendant’s Motion for
Summary Judgment and Motion to Suspend
Discovery made specific reference to a press release
dated 31 January 2006 announcing the closure and
renovation of Wood Hall (R pp. 32-175). The Plaintiff
further argued that the renovation could prejudice
the Plaintiff in the proceedings, and that the expert
opinions providing grounds for the renovation may
provide evidence to support the Plaintiffs defense of
the Defendant’s Motion for Summary Judgment. Not
only would renovation eliminate the Plaintiffs ability
to send experts to inspect. the demised premises, but
expert opinions regarding the conditions of the
present -n the facility could provide evidence that the
general pubiic was eclally exposed to the hazards
allegedly the cause of this injury. Without
substantial documentation, this renovation would
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prejudice the Plaintiffs ability to obtain evidence in
support of these contentions (R pp. 32-175). The
North Carolina Industrial Commission dismissed
this claim without ruling on the Plaintiffs Motion (R
pp. 220-223, 262-267). At the time the North
Carolina Industrial Commission extinguished this
claim, the motions pending before the North Carolina
Industrial Commission were null and void. Further,
the order staying the proceedings and the discovery,
granting the Defendant’s Motion to Suspend
Discovery pending a ruling on the Defendant’s
Motion for Summary Judgment, was dissolved and
no longer in full force and effect, and the proceedings
were removed from the North Carolina Industrial
Commission. Despite the fact that the Tort Claims
Act, N.C. Gen. Stat. § 143-291 et seq., stays all
determinations of the North Carolina Industrial
Commission pending appeal, the absence of a ruling
on the Plaintiff's Motion to Compel and the failure to
address the application for intervention § and
injunctive relief of the Plaintiff has made it
impracticable for the Plaintiff to obtain a stay before
the trial court. Furthermore, the Defendant has
remained silent on the issue of the renovation
through these proceedings, both before the North
Carolina Industrial Commission and the North
Carolina Court of Appeals (See Defendant’s Motion
to Dismiss) (R pp. 6-31, 214-218, 252-261). The
Defendant’s Response to the Petition for Writ of
Supersedeas is without merit, whereas the Plaintiff
is not seeking a stay of the judgment dismissing this
claim, but of the failure of the North Carolina
Industrial Commission to rule on the application for
intervention and injunctive relief submitted by the
Plaintiff. As no order was entered ruling upon said
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application and the Plaintiff's Motion to Compel, and
no ruling was incorporated into the decision
dismissing the Plaintiffs claim, the Tort Claims Act,
§ 143-291 et seq., is silent on this issue.
In order circumvent the suspension of
discovery, the Plaintiff served the Defendant, and
the State Government, with the Public Information
Requests in order to obtain evidence to support the
claims herein and in the Plaintiff's Notice of Appeal
(See Exhibits 25, 26, 27, 28, and 29). In pertinent
part, the Plaintiff has presented three (3) principle
arguments in response to the Defendant’s affirmative
defense. By established standard, the Plaintiff must
present a prima facie case, genuine issues of material
fact and triable issues of fact in order to sustain the
claim against dismissal. Pursuant to the Workers’
Compensation Act, N.C. Gen. Stat. § 97-1 et seq., and
applicable case law and precedents, the Plaintiff
presented various arguments to show that the
employment relationship between the Plaintiff, as
employee, and the Defendant, as employer, does not
invoke the exclusivity provisions of the Workers’
Compensation Act, § 97-1 et seq., without additional
findings. Moreover, the Plaintiff presented an
objection that there was not sufficient evidence to
support the finding that injury arose by accident out
of and in the course of the employment (See
Plaintiff's Notice of Appeal).
Firstly, the Plaintiff showed that the absence
of credible evidence concerning the injury and the
conditions present in the subject facilities should
have been viewed in the light most favorable to the
non-moving party, the Plaintiff (See the Plaintiffs
Notice of Appeal) (R pp. 32-175, 177-213, 227-250).
However, with the new evidence obtained, the
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Plaintiff now shows the following with respect to this
response to the Defendant’s affirmative defense.
NCDHHS, NCDOA and NCDOCR have confirmed
the acceptable maintenance, inspection = and
assessments standards, as well as the _ record
retention schedule for the UNC System, of which the
Defendant’s University is a constituent institution
(See Exhibits 1-11, 13-16, 18, 20-24). Further,
NCDHHS, NCDOA and the Defendant have
confirmed that acceptable maintenance, inspection
and assessments standards have not been upheld at
nearly all of the UNC System _ constituent
institutions, including the Defendant’s University
(See Exhibits 1-11, 13-18, 20-24). Evidence
previously presented by the Plaintiff supports these
findings (R pp. 32-175) (See Exhibit 7, 8, 12, and 19).
A 2004 report conducted by officials at the
Defendant’s University confirmed the _ indoor
environmental hazards and indoor air quality
concerns were such that the general public was
equally exposed (See Exhibit 17). Case law and
precedents does not support that the mere fact of
physical location is adequate to show the causal
connection between employment and an injury. The
claimant, the Defendant, must show a causal
connection between the tasks associated with the
employment and the injury in question. See Jackson
v. Fayetteville Area Sys. of Transp., 78 N.C. App.
412, 337 S.E.2d 110 (1985); Hargus v. Select Foods,
Inc., 271 N.C. 369, 156 S.E.2d 737 (1967); Perry v.
American Bakeries Co., 262 N.C. 272, 136 S.E.2d 643
(1964); McNeely v. Carolina Asbestos Co., 206 N.C.
568, 174 S.E. 509 (1934); Lovette v. Reliable Mfg.
Co., 262 N.C. 288, 136 S.E.2d 685 (1964); Wallace v.
Music Shop, IT, Ine., 11 N.C. App. 328, 181 S.E.2d
-37a-
237 (1971); Ruffin v. Compass Group USA, 150 N.C.
App. 480, 563 S.E.2d 633 (2002); Harden v.
Thomasville Furn. Co, 199 N.C. 733, 155 S.E. 728
(1930); Massey v. Board of Educ., 204 N.C. 193, 167
S.E. 695 (1933); Gallimore v. Marilyn's Shoes, 292
N.C. 399, 233 S.E.2d 529 (1977).
Moreover, this causal connection is null and
void against evidence that the injury was caused by a
hazard to which the general public is equally
exposed. Autledge v. Tultex Corp., 308 N.C. 85, 93-4,
301 S.E.2d 359, 365 (1983). Further evidence of the
general nature of the hazards are that (i) the media
coverage of 2003 and 2004 shows that the Defendant,
as well as other constituent institutions of the UNC
System, addressed the concerns as they affected the
student, staff, faculty, and all others collectively, and
did not evidence any special considerations or
specifically different hazards for employees, staff or
faculty, (11) the administrative memorandum and the
case study produced by the Plaintiff did not evidence
any special considerations or specifically different
hazards for employees, staff and faculty as opposed
to students, staff, faculty and all others collectively,
Gil) NCDHHS and NCDOA inspections of other
state-owned facilities, particularly residential
facilities, did not evidence any special considerations
or specifically different hazards for employees, staff
and faculty as opposed to students, staff, faculty and
all others collectively, and (iv) all of the pleadings
submitted by the Defendant to the North Carolina
Industrial Commission and the North Carolina Court
of Appeals is silent on this issue (R pp. 6-31, 214-218,
252-261) (See Exhibits 1-29). The findings of the
North Carolina Industrial Commission were silent on
this issue (R pp. 220-223, 262-267). Based upon this
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contention, the Plaintiff moved for the North
Carolina Industrial Commission to deny the
Defendant’s Motion for Summary Judgment and
Motion to Suspend Discovery on grounds that
pending discovery must be had before the Motion
could be heard (R pp. 32-175). While the contended
subject of this appeal is not public policy,
environmental issues, issues of public health, or
hazards to the general public, this contention
required findings as to public policy, environmental
issues, issues of public health, and hazards to the
general public (See Plaintiff's Notice of Appeal).
Secondly, the Plaintiff presented evidence
showing that, even with the employment relationship
as previously identified, the Plaintiff and the
Defendant were not subject to and had not comphed
with the provistons of the Workers’ Compensation
Act, § 97-1 et seq., in order to invoke the exclusivity
provisions therein (Sec Plaintiff's Notice of Appeal)
(R pp. 32-175, 177-213, 227-250). Components of this
contention included, but were not lhmuted to,
evidence showing that (1) the injury was not caused
by an accident, as defined by the Workers’
Compensation Act, § 97-1 et seq., and applicable case
law and precedents, (ii) the injury was caused by a
hazard associated with a task of the employment, but
a hazard associated with the package for
compensation for the employment, and (111) the injury
did not result in a disability or eligibility of
compensation for the Plaintiff as the Plaintiff did not
lose wages, as defined by the Workers’ Compensation
Act, § 97-1 et seq., and applicable case law and
precedents (See Plaintiffs Notice of Appeal) (R pp.
32-175, 177-218, 227-250). In support of this
contention, the Plaintiff shows that NCDHHS,
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NCDOA and NCDOCR have confirmed _ the
acceptable maintenance, inspection and assessments
standards, as well as the record retention schedule
for the UNC System, of which the Defendant’s
University is a constituent institution (See Exhibits
1-11, 13-16, 18, 20-24). Further, NCDHHS, NCDOA
and the Defendant have confirmed that acceptable
maintenance, inspection and assessments standards
have not been upheld at nearly all of the UNC
System constituent institutions, including the
Defendant’s University, from and before August 2002
(See Exhibits 1-29). The employment relationship of
between the Plaintiff and the Defendant commenced
in August 2002 and terminated in September 2003.
Not only was the Plaintiff exposed to hazards from
and before August 2002, but the Plaintiff was also
exposed to conditions which the Defendant knew
were substantially certain to cause serious injury or
death during employment. Pursuant to the Workers’
Compensation Act, § 97-1 et seq., and applicable case
law and precedents, the Plaintiff is eligible to
maintain a common law claim for remedy given the
intentional misconduct and negligence of the
Defendant, even as an employer. See Woodson v.
Rowland, 329 N.C. 330, 407 S.E.2d 222 (1991).
Lastly, the Plaintiff argues that, given the
Plaintiff is not eligible to receive compensation under
the Workers’ Compensation Act, § 97-1 et seq., denial
of the right to maintain a common law claim is 4
violation of the rights of the Plaintiff under the
Constitution of the United States and _ the
Constitution of the State of North Carolina (Sec
Plaintiffs Notice of Appeal) (R pp. 32-175, 177-213,
227-250). The aforementioned evidence obtained in
response to the Public Information Requests further
cass -40a-
supports that the Plaintiff is no eligible to receive
compensation under the Workers’ Compensation Act,
§ 97-1 et seg. (See Exhibits 1-29). The Workers’
Compensation Act, § 97-1 et seq., and applicable case
law and precedents, does not preclude the Plaintiff
from maintaining a common law claim as the
Workers’ Compensation Act, § 97-1 et seq., is not an
effective administrative remedy (See _ Plaintiffs
Notice of Appeal) (R pp. 32-175, 177-213, 227-250).
In the Defendant’s Motion to Dismiss this
Appeal, the Defendant argues’ that this
Constitutional question was not maintained
throughout these proceedings. This Constitutional
question was maintained from and after the time of
the Constitutional violation, which was the dismissal
of this claim by the North Carolina Industrial
Commission. Further, while the North Carolina
Industrial does not have jurisdiction to hear claims
alleging Constitutional violations, the North
Carolina Industrial Commission is authorized to
hear questions concerning its own statutory
jurisdiction, including the Constitutional questions
arising therefrom. The Defendant presented no
contention or contradicting precedents to this
standard (R pp. 10-31). The Plaintiff duly presented
argument based on the questions of classifications
which are the basis of this Constitutional question
before the North Carolina Industrial Commission
(See Plaintiff's Notice of Appeal) (R pp. 32-175, 177-
213, 227-250). The North Carolina Industrial
Commission is further barred by the United States
Constitution from engaging in any act repugnant to
the provisions thereof, including, but not limited to,
denying a substantial right to the Plaintiff, or
providing the Plaintiff equal protection under the
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law (See Plaintiff's Notice of Appeal) (R pp. 32-175,
177-213, 227-250). Equal protection in seeking
remedies for civil tort is embodied in this principle.
The Defendant’s Motion to Dismiss this Appeal is
without merit in this regard. Moreover the
Defendant’s cited case law and precedents in the
Defendant's Motion to Dismiss support the claims of
the Plaintiff. See Burgess v. Gibbs, 262 N.C. 462,
137 S.E.2d 806 (1964); Fender v. GE. Co., 260 F.
Supp. 75 (W.D.N.C. 1966); Fender v. GE. Co., 380
F.2d 150 (4th Cir. 1967); Wright v. Wilson Mem.
Hosp., 30 N.C. App. 91, 226 S.E.2d 225 (1976); Horne
v. G.E. Co., 716 F.2d 253 (4th Cir. 1983); Do/brow v.
Holland Indus., Inc., 64 N.C. App. 695, 308 S.E.2d
335 (1983); Freeman v. SCM Corp., 311 N.C. 294,
316 S.E.2d 81 (1984); Pangburn v. Saad, 73 N.C.
App. 336, 326 S.E.2d 365 (1985); Matthews v.
Charlotte-Mecklenburg Hosp. Auth., 132 N.C. App.
11, 510 S.E.2d 388 (1999); Whitaker v. Town of
Scotland Neck, 357 N.C. 552, 597 S.E.2d 665 (2003);
Powers v. Robeson County Memorial Hospital, Inc.,
242 N.C. 290, 87 S.E.2d 510 (1955).
In Burgess, Dolbrow, Powers, Fender, and
Wright, there was no dispute as to the nature or
circumstances of the injury, and adequate findings
that injury arose by accident out of and in the course
of employment were made. In Freeman, the finding
that there is no exception to N.C. Gen. Stat. § 97-10.1
for employee against. employer was overturned by
Woodson. In Whitaker, Woodsen is found to be a
q ‘ified exception to the Workers’ Compensation
Act, § 97-1 et seq.
In Pangburn, the Court held that immunity in
the Workers’ Compensation Act, § 97-1 et seq., does
not qualify for willful, wanton or reckless negligence
-42a-
for intentional acts. This disqualification and
exclusivity provision was modified by Woodson in
1991 to include intentional misconduct of the
employer as well. The Court further held that, while
the Workers’ Compensation Act, § 97-1 et seq.,
exclusivity provisions and the Tort Claims Act, § 143-
291 et seq., immunity clauses do not violate the
Equal Protection clause or open courts clause and the
statutes have rational relationships to legitimate
governmental interests, where the Workers’
Compensation Act, § 97-1 et seq., or the Tort Claims
Act, § 143-291 et seq., has no application, the
exclusivity provisions and immunity clauses thereof
also have no application. The Court also held that
State invocation of the Workers’ Compensation Act, §
97-1 et seq., exclusivity provisions and the Tort
Claims Act, § 143-291 et seq., immunity clauses
cannot be repugnant to Article I, Section 18 of North
Carolina Constitution, Article I, Section 19 of North
Carolina Constitution, or the Fifth Amendment or
Fourteenth Amendment of the United States
Constitution. The Court explicitly found that claims
for damages caused by intentional tort or gross
negligence of employees or employers not subject to §
97-10.1. This precedent was modified by Woodson in
1991 to include intentional misconduct. The Court
further held that dismissal is appropriate only if it
appears there is no remedy on the face of the
complaint and subsequent pleadings.
In Matthews, the Court held that the
Commissions findings are conclusive if supported by
the competent ev dence; administrative termination
of proceedings on grounds not provided by statute is
questioned; Workers’ Comp is to be _ liberally
construed and benefits not to be denied by strict or
-43a-
narrow interpretation; all trials should be held on
the merits surrounding disc
overy rules and reviewed based on the abuse of
discretion standard; an unverified application and
written motion, otherwise unsupported by the record,
is not competent evidence to grant said motion;
denial of the opportunity to be heard and collect
evidence and introduce new evidence and discovery
is the denial of a substantial right in htigation;
evidentiary hearings and discovery must be had
when the record is insufficient to hear the matter at
trial; and, denial of opportunity to be heard is a
violation of a substantial right.
The Defendant’s Motion to Dismiss this
Appeal is completely without merit. Moreover, the
Defendant has engaged in misconduct by moving to
destroy evidence relevant to these proceedings. In
addition, the reports provided by the Detendant are
not to the standard established by the NCDHHS and
NCDOA. Accordingly, the Plaintiff asserts that the
Defendant has not made a complete disclosure, the
Defendant has destroyed relevant records on file, or
the Defendant failed to adequately inspect the
premises as per NCDHHS and NCDOA standards.
As relief, the Plaintiff prays the Court
immediately order the Defendant to account and
itemize all documents, records, files and other
physical matter relevant to the Plaintiff's Discovery
Request of 1 May 2006. The Plaintiff further prays
the Court will provide additional remedy as deemed
appropriate.
JUSTIFICATION FOR THE MOTION TO AMEND
THE RECORD ON APPEAL
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In consideration of the foregoing, the Plaintiff
prays that the Court grant the Plaintiff leave of court
to amend the record on appeal to include the
evidence presented before the North Carolina
Industrial Commission, as itemized with this Motion.
In addition, the Plaintiff further prays the Court
allow the Plaintiff to amend the record on appeal
with the evidence’ referenced in_ discovery
proceedings between the Plaintiff and the Defendant,
as the Plaintiff had acquired these public record
documents from third parties, however, transmission
was not required pursuant to the North Carolina
Rules of Civil Procedure as said documentation is not
material to the claims of the Plaintiff. The Plaintiff
shows that the evidence in this proceeding was not
closed, discovery was suspended, and the Plaintiff
reserved the right to present said evidence at any
time same is relevant in these proceedings until the
close of evidence. Moreover, pursuant to Rule 23 of
the North Carolina Rules of Appellate Procedure, the
Plaintiff is authorized to present new evidence that
does not appear on the trial court record or the
Appellate Record on Appeal, if same is relevant to
the facts showing the need for extraordinary relief.
JUSTIFICATION FOR THE MOTION TO
EXPEDITE THIS APPEAL
In consideration of the foregoing, the Plaintiff
prays that the Court expedite this Appeal, given the
conduct of the Defendant and the destruction of
evidence relevant to these proceedings. Given the
decision to expedite this appeal is at the discretion of
the Court, the Plaintiff respectfully requests and
-45a-
prays for this appeal to be expediting for good cause
shown.
CONCLUSION
In conclusion, the Plaintiff prays this Supreme
Court will allow the Plaintiffs Notice of Appeal of
Right, certify this matter for discretionary review
and issue a Writ of Supersedeas to preserve the
record.
Respectfully submitted, this the 20th day of
August 2008,
PETITIONER
PLAINTIFF-APPELLANT
/s/ JOSEPH KAMAU CHRISTOPHER BEY
Pro Se
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APPENDIX G
EXCERPTS FROM EXHIBIT R TO THE
PLAINTIFF'S RESPONSE TO THE DEFENDANT'S
MOTION FOR SUMMARY JUDGMENT AND
MOTION TO SUSPEND DISCOVERY
North Carolina State University
Facilities Profile and 10-Year Capital Plan
Eva Klein & Associates, Ltd.
December 1999
PREFACE
Purpose
In 1997 and 1998, the North Carolina General
Assembly mandated that the Board of Governors of
The University of North Carolina conduct a Study of
Capital Equity and Adequacy and prepare a 10-Year
Capital Plan—to identify capital needs of each
institution for all categories of facilities.
This Facilities Profile and Capital Plan for
North Carolina State University is one of 16
individual reports prepared from data developed in
the Study. Its purpose is to summarize, in one place,
all facilities-related information and capital needs for
NC State from:
Existing statistical data about the
institution’s mission, campus population, and
campus facilities
Campus Visit interviews and tours
Compilation of 10-Year Capital Plan
needs, based on the technical analyses conducted for
the Study
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Organization of “Phase 1” (years 1-5)
with a schedule of projects proposed for state funding
and with a Matrix of Financing Responsibility,
for all financing sources... .
North-.Carolina State University
10-Year Capital Plan Summary
Matrix of Financing Responsibility and Proposed
Annual Schedule of Phase I State-Funded Projects . .
. Total 10-Year Plan Needs 1,492,945,366...
CAMPUS VISIT AND TOUR
Interview Comments
Mission. The general understanding of all
interviewees was the role that NC State plays in
economic development through the creation and
dissemination of knowledge.
- Science, engineering technology,
knowledge generation and dissemination, and
teaching are our primary missions.
- We are more about economic
development than any other institution in the State
and it is a responsibility we accept.
We have a statewide commitment to
serve the citizens of North Carolina and not just
through Agriculture Extension programs but through
our entire Extension programs. A _ part of our
research mission is to meet the needs of the State
today.
- We have special relationships with the
agriculture, forestry, textiles, and engineering
communities. We have a statewide commitment to all
these industries.
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We are basically the science and
technology university of the state system. Service
and extension of that research throughout the State
is what sets us apart from the rest of the universities
in the system.
Facilities Issues. Most interviewees expressed
concern about the quality and quantity of the space
that the campus has. In general the following
statements describe the extent and size of the
campus.
. There are 311 buildings on the campus
comprising 9.4 million GSF. There are an additional
322 buildings located off-campus with 1 million GSF
of space. These are just the buildings supported by
appropriations.
- Receipts support 51 percent of the space
on campus and only 49 percent 1s supported by the
General Fund.
- Twenty-five years is when a building
needs major renovations. Fifty-eight percent of the
buildings on-campus are older than 25 years and
only 10 percent of them have been renovated.
- Twenty-six percent of the buildings
have no air conditioning, 32 percent are air
conditioned with inefficient window units. Only 42
percent of the buildings have efficient air
conditioning systems and these are primarily on the
Centennial Campus.
Condition/Quality. Interviewees expressed
concern about the poor condition of the main campus
and the desire of everyone to move to the Centennial
Campus.
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. Centennial Campus has saved NC
State. Without this campus, we would not be the
institution we are today. The rest of the campus is
constrained.
. We have labs on the main campus no
better than you would find in secondary educational
institutions.
- ‘Teaching labs are the worst part of the
problem. With the changes in technology, we are
having a tough time keeping up.
. Asbestos removal, environmental
controls, and safety issues are the biggest problems
we need to address.
: We prepare teachers on this campus in
facilities that are not comparable to the facilities
they will have in the high schools.
. There is general lack of aesthetics and
beauty on the campus. There is no landmark
building. There is no special place that is a signature
of the institution.
. We are allowing programs to exist that
have serious safety issues. We need the right
facilities to take care of current enrollments.
- We got a $1 million endowed chair and
tried to hire the best person in the world to fill the
position. He laughed at us because our facilities and
infrastructure are so poor.
Capacity. Interviewees commented on the lack
of teaching lab space for the sciences and
overcrowded conditions in the student recreation
areas.
- To serve the chemistry students, we
had to divide them into two groups with lecture one
week and labs the next week.
\
-50a-
: Our research growth and partnering is
exponential and we are having a tough time being
able to accommodate everyone that wants to join
with us.
- There are not enough classrooms to
meet our needs. We have only started renovating
classrooms in the last five years.
. There is severe shortage of space in the
student areas. Also, we have a problem with trying to
meet the needs of the community with this hmited
space.
- Our targeted enrollment is 31,000
students and we will need more. space to
accommodate this growth. Also, research space is
relational with enrollment growth.
Land Issues. NC State has 103,000 acres
throughout the State with only approximately 2,000
acres comprising the three main campuses. Land is
held in three entities: State, endowment, and
foundation lands. Only the foundation land is not
tax-exempt.
Infrastructure. Given the size of the campus,
interviewees at NC State expressed concern that the
infrastructure of electrical, steam lines, water, sewer,
and telecommunications is not counted as a part of
the CRV of the campus. This method undervalues
the true CRV and reduces the amount of funds
available from R&R to address upkeep and repairs to
these critical systems. (Note: In the April 1999 report
to the Board of Governors, EKA has recommended
this change—to add infrastructure CRV to the R&R
Reserve formula.)
Staffing and Budget. Interviewees expressed
concern about the move by the General Assembly to
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use part of the R&R funds to help pay for the
Technology Infrastructure Expansion program. It
was felt that this sets a dangerous precedent for
using R&R funds for purposes other than those for
which the money was designated originally. Concern
was expressed that the R&K funds are insufficient to
address the deferred maintenance needs...
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APPENDIX H
EXHIBIT A TO THE PLAINTIFF’S RESPONSE TO
THE DEFENDANT'S MOTION FOR SUMMARY
JUDGMENT AND MOTION TO SUSPEND
DISCOVERY
MEMORANDUM
Administrative Memo
NC State University
Residence Halls
Submitted by: J. Christopher];] Title: RA
Date: 10/08/2002{[;] Time: 4:00 AM
Building: Wood Hall A[;] Room #209H
Phone #512-1859
Date of Incident: 9/23/02-Present|;] Time: n/a
Location (Building)(Room): Wood Hall
Subject(s) Involved: [NAMES REDACTED]
On Tuesday, September 24, 2002, [NAME
REDACTED] was experiencing sore throat and
labored breathing. He went to the Student Health
Center where they performed a number of test and
found no diseases. He was given an antibacterial
mouthwash for the sore throat and sent home. Two
days later on Thursday, September 26, 2002, [NAME
REDACTED] was taken to the hospital with an
enflamed tonsil. The tonsil was [protruding] out of
his throat and also preventing breathing. The doctors
at Wake Med gave [NAME REDACTED] [Novocain}
and gave him ten incisions in his tonsil to let the
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infection that enlarged the organ drain out. Wake
Med also put [NAME REDACTED] on [penicillin].
On Saturday, September 28, [NAME
REDACTED] was taken the hospital. He was treated
and tested for various diseases and all test came up
negative. He was admitted overnight, given a cat
scan and administered Morphine and other pain
killers for the migraine headaches. [NAME
REDACTED] also experienced |weight loss], loss of
appetite, [vomiting], nausea and flu like symptoms.
On Monday, September 30, 2002, Resident
Advisor J Christopher was experiencing migraine
headaches, shortness of breathe, clogged sinus
conditions, flu like symptoms, coughing, loss of
appetite, loss of over fifteen pounds after already
being underweight, [vomiting] and nausea. He
missed all of his morning classes that day and went
to the Student Health Center. After drawing four
viles of blood and taking a urime test, the Student
Health Center found no identified diseases, but did
notice significant [weight loss] and a viral strand in
the blood. Blood cell counts were normal eliminating
mono or any other typical viral disease. Later that
day, [NAME REDACTED] informs Wood Hall
Resident Advisor J Christopher that her air
conditioning unit in her room was growing mold and
mildew. [NAME REDACTED] had been experiencing
similar ailments without cause and was concerned.
[INAME REDACTED] also noticed the smell of the
mildew and mold when she entered the suite.
INAME REDACTED] complained of nausea,
headaches, sore throat and shortness of breathe to do
a restricted air canal. Her parents removed her from
the building on Thursday, October 3, 2002. While
picking up her up, her father noticed the smell of
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mildew and mold. While away from the building, her
condition drastically improved. When she returned
with her father, he opened the air conditioning unit
and attempted to clean the green growth inside.
On October 2, 2002, [NAME REDACTED] was
experiencing light-headedness, headaches and flu
like symptoms after visiting for two hours in the
middle afternoon.
[NAME REDACTED] receives allergy shots
every week. Last week, the doctor at the Student
Health Center refused to give her an allergy shot
because of her enflamed tonsils. She was also
experiencing nausea, sore throat and headaches. The
doctor recommended that she take penicillin to
combat the [inflammation] and if it did not clear up,
she would be given an antibacterial mouthwash this
week.
[NAME REDACTED] experienced chronic
coughing. [NAME REDACTED] experienced sore
throat and enflamed tonsils. [NAME REDACTED]
experienced headaches and nausea.
The air conditioning unit in room 209H was
cleaned on Monday, October 7, 2002 by [NAME
REDACTED] and another employee of University
Housing. Inside of the unit, the drainage pipe for the
condensation that builds up on the coils was clogged.
The water intended for the reservoir was orange with
growth. Water and condensation also dripped onto
the air filter most likely causing additional growth
which was masked by the unprecedented dust on the
filter. A muildicide spray was applied to the unit.
Maintenance also informed J Christopher that filters
were to be changed every six months and that the
filter should have been changed over the summer. It
was apparent that the filter was at least a year old.
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APPENDIX I
EXHIBIT F TO THE PLAINTIFF'S RESPONSE TO
THE DEFENDANT'S MOTION FOR SUMMARY
JUDGMENT AND MOTION TO SUSPEND
DISCOVERY
LETTER
North Carolina
Department of Health and Human Services
Division of Public Health
Epidemiology Section
1912 Mail Service Center
Raleigh, North Carolina 27699-1912
January 23, 2004
Mr. J. Kamau Christopher
{North Carolina State University]
fjkchrist@unity.ncsu.edu]
243 Clinton Place
Newark, New Jersey 07112
Dear Mr. Christopher:
[ am responding to your case study concerning
mold at North Carolina State University. My
response is on behalf of the Governor’s Office and the
Division of Public Health. Currently the Division of
Public Health is the state agency designated to
address health related mold issues in all state
government buildings, including the university
system.
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The Division of Public Health, in cooperation
with the State Construction Office, has implemented
a program for responding to mold related concerns in
specific state owned or leased buildings. A key aspect
of the program is to work through the safety and
health office of the agency or university whenever
mold situations or complaints arise. Therefore, we
will be working with the Environmental Health and
Public Safety Center at North Carolina State
University concerning your case study. I encourage
you to contact the Center directly. The person to
contact 1s David Rainer at 515-4238.
Please feel free to contact me directly at (919)
733-0200 if 1 can be of further assistance.
Sincerely,
/s/ PAT CURRAN
Pat Curran, CIH
Manager
Health Hazards Control] Unit
cc: David Rainer
darainer@qw.fis.ncsu.edu
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APPENDIX J
EXCERPTS FROM EXHIBITS 15, 16, 18, AND 26
TO THE PLAINTIFF-APPELLANT-PETITIONER’S
MOTION FOR TEMPORARY STAY,
MOTION TO AMEND THE RECORD, AND
MOTION TO EXPEDITE THIS APPEAL
LETTER
North Carolina
Department of Health and Human Services
Office of Public Affairs
2001 Mail Service Center
Raleigh, North Carolina 27699-2001
June 23, 2008
J. Christopher Bey
c/o Sharon Bey-Christopher, Managing Attorney
Legal Aid of North Carolina, Inc.
108 Gold Street Fast
P.O. Box 2688
Wilson, North Carolina 27894-2688
Dear Mr. Bey,
Enclosed are the public records you requested
from NC DHHS in your letter dated May 29, 2008
and in your follow-up, expanded request letter dated
June 18, 2008...
Sincerely,
/s/ CAROL D. SCHRIBER
Carol D. Schriber ... Public Affairs Office
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REPORT OF INSPECTION
Dial Humanities Building
University of North Carolina at Pembroke
Report of Inspection by
State Construction Office Consulting Services
Section
|December, 2003]
Backgreund
On |December 9, 2003,] an inspection of Dial
Humanities Building was conducted. The inspection
team was composed of members of Department of
Administration State Construction Office and
Department of Health and Human Services Division
of Public Health. Presence, impact and _ possible
resolution of mold were the reasons for the
inspection. The building had not been occupied since
{October 16, 2003]. The team reviewed reports of
inspections conducted by [S.&M.E.,] Inc. and Trigon
Engineering Consultants, Inc., conducted in October
and November respectively, prior to its own
inspection.
Dial Humanities Building has approximately
31,000 |square feet| on two floors; it was designed by
Hayes, Howell! and Associates and built in 1979. The
building houses classrooms, faculty offices and audio-
visual rooms. Its structural system is reinforced by
concrete. Exterior facade is brick, with horizontal
bands of windows on both levels.
Inspection
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The exterior wall system consists of 4 inch
brick veneer, a 2 inch cavity, and a 6 inch metal stud
wall system. There are metal ties between the wythe
of brick and the metal stud wall system. The metal
stud wall system consists of a vapor barrier facing
the cavity and installed over a light-weight gypsum
wall sheathing; there is 6 inch fiberglass batt
insulation in the stud space with a kraft-paper vapor
barrier facing the building interior; over the interior
face of the stud is % inch gypsum _ wall-board,
finished with vinyl wall covering or paint.
Problems with the metal ties were noted,
including some severe deficiencies in their original
installation, and in some cases their complete
deterioration due to rust.
A significant amount of mold growth has been
revealed on the interior gypsum wall board. A very
obvious source of water penetration is at the row-lock
brick window sill. The design and construction of the
sill provided no solid support under the back side of
the row-lock, which should remain high to shed
water away from the base of windows. In many
cases, the surface of the brick at the window its now
obviously lower than at the outside ends of the brick.
There 1s composite flashing under the row-lock,
which should catch water that does enter the wall at
the sill. The problem here is that no weep holes on
the flashing were called for in the details, nor
installed during construction, to expel the water.
Another possible problem with the flashing
that is also mentioned in one of the previously-
referenced reports is that the flashing was installed
without end-dams. Such a condition would allow
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water on the flashing to run into the walls at the
ends of the flashing.
Further investigation revealed significant
rusting/deterioration of the bottom runner of the
metal stud system.
There was considerable evidence of water and
mold on the exterior wall of [Conference] Room 251
that could not have been caused by the window-:sill
situation.
The roof was inspected, and it appears to be
quite serviceable, adequate, and not likely to be the
source of significant water penetration.
Recommendations
Solutions to the problems with Dial Building
should be phased. The first operation should be a
demolition contract to remove all gypsum wall board
and batt insulation from (the inside of) all exterior
walls. This will allow a more accurate assessment of
existing conditions, and it will also be a more
thorough way to arrest/eliminate moid. Perhaps
simultaneous with the first operation, a new design
for a more correct window sill could still be
performed. New replacement windows could perhaps
be ordered. The present windows themselves are not
believed to be the source of water penetration. It
would, however, be nearly impossible to remove,
retain, and_ reinstall the present windows
successfully. Structural evaluation of the metal
studs, stud track, and the adequacy of the metal tie
connections between the brick veneer and the metal
studs, would be the next order of business. Design of
remedial repairs to address whatever deficiencies the
structural evaluation revealed would then need to be
-61la-
performed. Remedial repairs should be combined
with window and sill work, into a single construction
contract. New insulation and gypsum wall board,
could be a separate construction package.
Thank you for calling on the Consulting
Services Section of the State Construction Office to
help with this work.
Ron Little, AlA/Architect
Buddy West, PE/Structural Engineer
-62a-
MEMORANDUM
North Carolina
Department of Health and Human Services
Division of Public Health
Epidemiology Section
1912 Mail Service Center
Raleigh, North Carolina 27699-1912
December 19, 2003
To: John J. “Pat” Curran, Manager, Health Hazards
Control Unit
From: David Lipton, industrial Hygiene Consultant,
and Danny Lineback, Industrial Hygiene Consultant
Subject: NCCU Residence Halls One and Two, Suites
Heating and Air-Conditioning Systems
On December 8, 2003, we conducted a survey
of New Residence Halls One and ‘I'wo at North
Carolina Central University (NCCU). Our purpose
was to examine and evaluate the building as
consultants to the State Construction Office on
renovation of the buildings to prevent mold growth.
Tom Roberts from the State Construction Office and
Mike Logan from the NCCU . safety office
accompanied us. The major area of concern for this
visit was to examine the condition of Heating and
Ventilation and Air Conditioning (HVAC) systems
for suites and to make recommendations for
renovations of the units.
Each suite has an independent HVAC system.
A system consists of a vertical fan coil unit and
fibrous glass lined metal air supply ducts. Air ducts
run above ‘he gypsum board ceiling. Air returns to
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the fan coil through the occupied zone. A thermostat
located in the hall is used to control temperature.
Reportedly low efficiency filters were used in the
systems. Extensive moisture problems in fan coil
units in both buildings such as water accumulation
in the bottom, and construction issues, such as poorly
installed condensate drain pans and piping has been
previously described and documented.
We examined the interior air ducts in Suite
340 of both buildings. The coated fibrous giass
surfaces had significant accumulations of dust and
debris. The bottoms of the air ducts were covered in
a white material. Samples of the fiberglass
insulation from these areas as well as from other
locations were collected and submitted to the State
Laboratory of Public Health where samples of the
surface materials will be analyzed by Ihght
microscopy. As of the date of this memo we have not
received written laboratory results. However, the
analyst reported some visible water stains on
insulation samples. The white materials were most
hkely calcium carbonate and calcium = sulfate
(gypsum board) and there were a few spores and
hyphae. The complete report will be forwarded to
you when it 1s_received. \
Recommendations and Discussion
It is our understanding that the fan coil units
are to be replaced as part of the renovation project.
We recommend that insulation inside air ducts [be]
removed and that no insulation inside air ducts
should be used in the renovation project.
Our recommendation is based on the following
reasons: There are reports that insulating materials
stayed wet for extensive time periods. Moisture may
have compromised the surface coating and insulating
-64a-
properties of the fibrous glass. There is concern
about durability of coating or encapsulating
materials to provide a 20 or 30 year service life.
These same concerns extend to the thermal and
acoustical insulation inside air ducts in heavy use
facilities such as dormitories. Because this 1s a high
profile project the knowledge that no insulation was
left inside air ducts will add to the perception that
the buildings are clean and healthy. Although not
recommended, if insulation inside air ducts is to be
retained, it should be commercially cleaned. A firm
following both the National Air Duct Cleaners
Association and North American Insulation
Manufacturers Association standards should perform
the cleaning and guidelines for cleaning lined
ductwork before any kind of encapsulating materials
could be applied.
Conclusion
This memo describes conditions observed on
December 8, 2003, and recommendations are based
on good industrial hygiene practice. Please feel free
[to contact] us with any questions or to clarify any
information in this report.
DL/DL:be
ce: Greg Driver, State Construction Office
-65a-
MEMORANDUM
North Carolina
Department of Health and Human Services
Division of Public Health
Epidemiology Section
1912 Mail Service Center
Raleigh, North Carolina 27699-1912
January 5, 2004
To: John J. “Pat” Curran, Manager, Health Hazards
Control Unit
From: David Lipton, Industrial Hygiene Consultant
Subject: NCCU Residence Halls One and Two, Suites
Heating and Air-Conditioning Systems, Mold Sample
Results
The table below summarizes the microscopic
examination of samples of coated fiberglass
insulation collected from interior air ducts at the
NCSU New Residence Halls on December 5, 2003...
. Mold spores were found in every sample and large
numbers cf spores and hyphae were found in four of
seven samples. Spores and hyphae indicate there
was fungal growth in the insulation. Synthetic
fibers, cotton fibers, starch, and pollen were found in
relatively small amounts with no apparent pattern of
distribution. These materials are common in the
indoor environment and could be generated from
outdoor sources, occupant sources or during the mold
remediation. Amorphous debris, opaques, CaCO3
(Calcium Carbonate) and CaSO4 (Calcium Sulfate)
would be consistent with dust from cutting gypsum
board materials during the mold remediation.
-66a-
The results confirm our previous
recommendations that interior insulation in the air-
ducts for the suites should be removed.
DL/be
cc: Danny Lineback, Industrial Hygiene Consultant
-67a-
APPENDIX K
EXCERPTS FROM EXHIBITS 17 AND 28 TO THE
PLAINTIFF-APPELLANT-PETITIONER’S
MOTION FOR TEMPORARY STAY,
MOTION TO AMEND THE RECORD AND
MOTION TO EXPEDITE THIS APPEAL
LETTER
North Carolina State University
Office of Finance and Business
Holladay Hall
Campus Post Office Box 7201
Raleigh, North Carolina 27695-7201
July 24, 2008
Mr. J. Christopher Bey
c/o Sharon Bey-Christopher, Esq.
Managing Attorney
Legal Aid of North Carolina, Inc.
P.O. Box 2688
Wilson, North Carolina 27894-2688
Subject: Public Information Requests for the
Government of the State of North Carolina and
Government of the United States of America
Dear Sir:
Per your request, North Carolina State
University is providing the following information: (i)
The North Carolina State University Facility Profile
and Ten-Year Capital Plan; (ii) Report on Residence
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Hall Inspection for mold[, dated] January 2004
(attached); (ii) NC State had several projects
involving Wood Residence Hall over the past several
years. It is not clear which project you are
referencing. Below is a list of the projects for Wood
Residence Hall. Please indicate which one you are
referring to: Wood Residence Hall HVAC Controls
Installation; Wood
This text is long and has been trimmed here. Open the source document for the complete record.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.