NO. COA NORTH CAROLINA COURT OF APPEALS. Filed: 5 July Appeal by plaintiff from orders entered 15 April 2010 and 2

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1 An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure. NO. COA NORTH CAROLINA COURT OF APPEALS Filed: 5 July 2011 ROBERT ALLEN SARTORI, Plaintiff v. Jackson County No. 10 CVS 266 COUNTY OF JACKSON, ET AL (JCJ); DOCTOR STEVEN P. DEWEESE; NURSE, CATHY BARNES, Defendants Appeal by plaintiff from orders entered 15 April 2010 and 2 July 2010 by Judge Bradley B. Letts in Jackson County Superior Court. Heard in the Court of Appeals 9 June Robert Allen Sartori, pro se, for plaintiff-appellant. No brief filed for defendant-appellees. CALABRIA, Judge. Robert Allen Sartori ( plaintiff ) appeals from the trial court s orders (1) dismissing his claims against Jackson County, Dr. Steven P. Deweese ( Dr. Deweese ), and Nurse Cathy Barnes ( Nurse Barnes )(collectively defendants ) for failure to comply with N.C. Gen. Stat. 1A-1, Rule 9(j)(2009) ( Rule

2 -2-9(j) ); and (2) denying his motions for relief pursuant to Rules 59 and 60. We vacate and remand. I. Background According to the allegations in plaintiff s complaint, he is an inmate in the North Carolina Department of Correction ( DOC ). Plaintiff was transferred to the Jackson County Jail ( the jail ) on multiple dates due to an unrelated case. Prior to his arrival at the jail, DOC physicians prescribed the painkiller Ultram to plaintiff four times a day to treat pain in plaintiff s back, hip, hands, and left wrist. On 9 April 2009, Nurse Barnes dispensed the painkiller ibuprofen to plaintiff, rather than Ultram. Nurse Barnes informed plaintiff that she was acting on Dr. Deweese s orders. On 15 June 2009, Nurse Barnes dispensed Ultram to plaintiff, but only twice that day. Nurse Barnes again informed plaintiff that she was acting pursuant to Dr. Deweese s orders. On 12 October 2009, Nurse Barnes again only dispensed Ultram to plaintiff twice. On 15 April 2010, plaintiff petitioned the Jackson County Superior Court to allow him to file a pro se complaint against defendants as an indigent. In his proposed complaint, plaintiff alleged that Dr. Deweese and Nurse Barnes failure to dispense

3 -3- his Ultram four times per day constituted negligence and medical malpractice under the theory of res ipsa loquitur. On 14 April 2010, the trial court conducted a hearing to review plaintiff s Petition to Sue as an Indigent. The trial court then entered an order dismissing plaintiff s complaint pursuant to Rule 9(j) of the Rules of Civil Procedure because the complaint failed to allege sufficient facts to establish negligence under the theory of res ipsa loquitur. The trial court s order did not address whether plaintiff s claims were frivolous. On 12 May 2010, plaintiff filed a Motion for Relief from Order/Amendment to Order pursuant to N.C. Gen. Stat. 1A- 1, Rules 59 and 60(b). On 2 July 2010, the trial court denied plaintiff s motion. Plaintiff appeals. Plaintiff argues that the trial court erred by dismissing his complaint pursuant to Rule 9(j) without making a frivolity determination under N.C. Gen. Stat (b) (2009). We agree. N.C. Gen. Stat (b) governs the treatment of motions to proceed as an indigent for inmates in the North Carolina Department of Correction. It states: Whenever a motion to proceed as an indigent is filed pro se by an inmate in the custody of the Department of Correction, the motion to proceed as an indigent and the proposed

4 -4- complaint shall be presented to any superior court judge of the judicial district. This judge shall determine whether the complaint is frivolous. In the discretion of the court, a frivolous case may be dismissed by order. The clerk of superior court shall serve a copy of the order of dismissal upon the prison inmate. If the judge determines that the inmate may proceed as an indigent, service of process upon the defendant shall issue without further order of the court. Id. (emphasis added). Under this statute, when the trial court is presented with a petition to sue as an indigent by an inmate, it must make a threshold determination as to whether the inmate s proposed complaint is frivolous. If the inmate s proposed complaint is frivolous, the trial court should dismiss the complaint. However, if the proposed complaint is not frivolous, then the trial court should allow the inmate to proceed as an indigent. In the instant case, the trial court failed to follow the requirements of N.C. Gen. Stat (b) and instead dismissed plaintiff s complaint sua sponte pursuant to N.C. Gen. Stat. 1A-1, Rule 9(j). The trial court went far beyond the threshold inquiry of N.C. Gen. Stat (b) and ventured into substantive matters which are not part of a frivolity determination. See Gray v. Bryant, 189 N.C. App. 527, 528, 658 S.E.2d 537, 538 (2008)( In determining whether a complaint is

5 -5- frivolous, the standard is not the same as in a ruling on a motion under Rule 12(b)(6). Instead, we look with a far more forgiving eye in examining whether a claim rests on a meritless legal theory. (internal quotations and citations omitted)). Since the trial court failed to follow N.C. Gen. Stat (b), we vacate the trial court s order and remand for further proceedings consistent with this opinion. This disposition makes it unnecessary to address plaintiff s remaining arguments. Vacated and remanded. Judges ELMORE and STEELMAN concur. Report per Rule 30(e).