Appeal by plaintiff from Grist, Judge. Judgment entered 11 June 1981 in Superior Court, Transylvania County. Heard in the Court of Appeals 6 April 1982.
Hedrick, Judge. Judge Hill concurs. Judge Becton concurring in the result.
Plaintiff first assigns as error "[t]he Court's denial of plaintiff's Motion for Appointment of counsel, or, in the alternative, that the Court recognize a fellow prisoner of the plaintiff to aid plaintiff in the prosecution of plaintiff's cause of action."
"G.S. 7A-451(a) . . . constitutes the latest legislative determination of the scope of an indigent's entitlement to court appointed counsel." Jolly v. Wright, 300 N.C. 83, 86, 265 S.E.2d 135, 139 (1980). The statute nowhere, however, lists, as being entitled to court-appointed counsel, a plaintiff bringing an action for damages and declaratory relief under 42 U.S.C. § 1983. Another statute, G.S. § 1-110, provides that the court "may assign to the person suing as a pauper learned counsel, who shall prosecute his action." "[T]he use of [the word] 'may' generally connotes permissive or discretionary action and does not mandate or compel a particular act." Campbell v. First Baptist Church of City of Durham, 298 N.C. 476, 483, 259 S.E.2d 558, 563 (1979), and "a discretionary order of the trial court is conclusive on appeal absent a showing of abuse of discretion." Privette v. Privette, 30 N.C. App. 41, 44, 226 S.E.2d 188, 190 (1976). Since plaintiff has shown no abuse, by the court, of its statutory discretionary power to appoint counsel for pauper plaintiffs, no violation of G.S. § 1-110 has been shown.
Turning to constitutional considerations, "[t]he mandate of procedural due process contained in our Constitution and in the Fourteenth Amendment applies only to actions by the government which deprive individuals of their fundamental rights." North Carolina National Bank v. Burnette, 297 N.C. 524, 534, 256 S.E.2d 388, 394 (1979).
Even when some procedural due process must be afforded, the determination of whether due process requires the appointment of counsel may be made only after balancing the factors in favor of appointment "against the presumption that there is a right to appointed counsel only where the indigent, if he is unsuccessful, may lose his personal freedom." Lassiter v. Department of Social Services of Durham County, 452 U.S. 18, 26-27, 68 L. Ed. 2d 640, 649, 101 S. Ct. 2153, 2159 (1981). No procedural due process, and particularly no right to appointed counsel, inures to plaintiff in the present case where his action is a civil action initiated by him against private individuals, and where his action is one in which the State is not even a party, much less the initiator of proceedings to deprive an individual of his physical liberty. Finally, we are aware of no rule requiring a trial judge to order a furlough for an incarcerated inmate whereby that inmate may assist, in a nontestimonial capacity, a party to a legal dispute. Plaintiff's first assignment of error is therefore overruled.
Plaintiff's next assignment of error is "[t]he Court's dismissal of plaintiff's complaint upon defendant's [sic] Motion to Dismiss for failure of the complaint to state a cause of action upon which relief could be granted."
"[A] complaint must be dismissed when, on its face, it reveals that no law supports it, that an essential fact is missing, or a fact is disclosed which necessarily defeats it." Mumford v. Hutton & Bourbonnais Co., 47 N.C. App. 440, 442, 267 S.E.2d 511, 512 (1980). Since plaintiff's action purports to be a 42 U.S.C. § 1983 action against defendants for their deprivation under color of state law, of his constitutional rights, the factual allegations in his complaint must be examined to determine whether, if believed, they amount to any violation of recognized constitutional rights. See Evans v. Town of Watertown, 417 F. Supp. 908 (D. Mass. 1976). Hence, the crucial inquiry in the present case is the scope of "the constitutional rights of pretrial detainees -- those persons who have been charged with a crime but who have not yet been tried on the charge." Bell v. Wolfish, 441 U.S. 520, 523, 60 L. Ed. 2d 447, 458, 99 S. Ct. 1861, 1865 (1979).
The Government may permissibly detain a person suspected of committing a crime, even though such detention is prior to a
formal adjudication of guilt; "the Government has a substantial interest in ensuring that persons accused of crimes are available for trials and, ultimately, for service of their sentences, . . . [and] confinement of such persons pending trial is a legitimate means of furthering that interest." Id. at 534, 60 L. Ed. 2d at 465, 99 S. Ct. at 1871. Although pretrial detainees do not forfeit all constitutional protections by reason of their confinement, Id., "maintaining institutional security and preserving internal order and discipline are essential goals [of the detention system] that may require limitation or retraction of the retained constitutional rights of . . . pretrial detainees." Id. at 546, 60 L. Ed. 2d at 473, 99 S. Ct. at 1878. "A detainee simply does not possess the full range of freedoms of an unincarcerated individual." Id. at 546, 60 L. Ed 2d at 473, 99 S. Ct. at 1878.
Prison officials must be free to take appropriate action to ensure the safety of inmates and corrections personnel and to prevent escape or unauthorized entry. Accordingly, . . . even when an institutional restriction infringes a specific constitutional guarantee, . . . the practice must be evaluated in the light of the central objective of prison administration, safeguarding institutional security.
Id. at 547, 60 L. Ed. 2d at 473, 99 S. Ct. at 1878. Furthermore, the judiciary should accord prison administrators wide-ranging deference in the adoption and execution of policies and practices that they ...