An unpublished opinion of the North Carolina Court of Appeals does not constitute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
A   p   p    e   l   l   a    t   e       P   r    o   c   e   d   u    r   e   .



                              NO. COA13-1194
                      NORTH CAROLINA COURT OF APPEALS

                              Filed: 1 July 2014


JOSEPH MICHAEL GRIFFITH,
     Plaintiff,

      v.                                     Bertie County
                                             No. 13 CVS 235
NORTH CAROLINA PRISONER LEGAL
SERVICES et al.,
     Defendants.


      Appeal by      Plaintiff from Order        entered 17 July 2013         by

Judge Cy A. Grant in Bertie County Superior Court. Heard in the

Court of Appeals 19 March 2014.


      Joseph Griffith pro se.

      No brief for Defendants.


      STEPHENS, Judge.


             I. Factual Background and Procedural History

      Plaintiff is an inmate in the custody of the Division of

Adult    Correction    of    the   North   Carolina   Department    of   Public

Safety     (“DPS”)     and     incarcerated      at    Bertie     Correctional

Institution in Bertie County, North Carolina. Plaintiff has been

incarcerated since 27 November 2002. On 7 March 2012, Plaintiff
                                            -2-
filed a petition in Bertie County Superior Court “for an order

allowing me to bring suit in this action as an indigent.” That

same day Plaintiff submitted an affidavit of indigency and a

complaint    alleging     causes       of    action        against     North     Carolina

Prisoner Legal Services, Inc. (“NCPLS”); the executive director

of NCPLS, Mary Pollard; DPS; the secretary of DPS, “Mr. Young”1;

North    Carolina   Indigent         Defense      Services     (“IDS”);        Thomas   K.

Maher;    the   State     of     North       Carolina;        and      Beverly     Perdue

(collectively,        “Defendants”).           The        complaint     includes        the

following pertinent allegations:

       Defendants     have     (a)    failed         to    provide     Plaintiff     with

adequate support services for the purpose of prosecuting various

legal actions; (b) declined to represent him when it is unlikely

that there would be a large financial gain for Defendants; and

(c) declined to represent him in lawsuits against the State,

“family matters,” and “legal disputes with persons outside the

prison    context,”    among    other       things.        According    to     Plaintiff,

these actions constitute a violation of (i) Plaintiff’s right to

adequate access to the courts under Lewis v. Casey, 518 U.S.

343, 135 L. Ed. 2d 606 (1996) and Bounds v. Smith, 430 U.S. 817,




1
    Plaintiff does not include the first name of Defendant Young.
                                            -3-
52    L.   Ed.   2d   72    (1977);     and     (ii)    a    valid    and   enforceable

contract between NCPLS and IDS to provide such support.

       Attributing         these      alleged     violations         to     insufficient

funding for NCPLS, among other causes, Plaintiff requested that

the trial court order DPS to provide NCPLS with an additional

three million dollars so that NCPLS can provide adequate legal

services for all indigent defendants. Plaintiff also requested

the implementation of an “adequate court access program which

includes the necessary monetary resources, support services[,]

and materials needed to ensure Plaintiff . . . effective and

meaningful court access . . . .” One year and four months later,

on 15 July 2013, the trial court dismissed Plaintiff’s petition

to sue as frivolous. Plaintiff seeks to appeal that order.

                                 II. Appellate Review

       Plaintiff includes a handwritten notice of appeal in the

record. The notice indicates that it was submitted on 12 August

2013, but there is no indication that it was timely filed with

the    clerk     of   court      or    served     on    the    alleged      Defendants.

Recognizing      that      his     appeal   might      not    be    proper,    Plaintiff

designates his brief as “Plaintiff-Appellant’s Brief or in the

alternative       Plaintiff’s         petition      for      writ    of     certiorari.”

(Italics added). In addition, Plaintiff notes in his section
                                       -4-
entitled “Grounds for Appellate Review” that he seeks review

either of a final judgment or by means of certiorari under Rule

21 of the North Carolina Rules of Appellate Procedure. We grant

appellate review pursuant to Rule 21.

    Because Plaintiff’s notice of appeal does not indicate that

it was timely filed with the clerk of superior court or that

copies   were   served     on    the   alleged     Defendants,    it    does    not

comport with the requirements of Rule 3, and we are without

jurisdiction to review the case. N.C.R. App. P. 3(a); see also

Von Ramm v. Von Ramm, 99 N.C. App. 153, 156, 392 S.E.2d 422, 424

(1990) (“Without proper notice of appeal, this Court acquires no

jurisdiction.”) (citation and internal quotation marks omitted).

Under Rule 21(a)(1), however, this Court has discretion to treat

a purported appeal as a petition for writ of certiorari and

grant that petition “when the right to prosecute an appeal has

been lost by failure to take timely action . . . .” N.C.R. App.

P. 21(a)(1);     Anderson v. Hollifield, 345 N.C. 480, 482, 480

S.E.2d 661, 663 (1997) (“. . . Rule 21(a)(1) gives an appellate

court    the   authority    to    review     the   merits   of   an    appeal   by

certiorari even if the party has failed to file notice of appeal

in a timely manner.”) (italics added); see also Fearrington v.

Univ. of North Carolina at Chapel Hill, 126 N.C. App. 774, 777–
                                    -5-
78, 487 S.E.2d 169, 172 (1997) (treating the petitioner’s notice

as a writ of certiorari and reviewing it under Rule 21(a)(1)

when the petitioner’s brief indicated that the notice was filed

from the wrong order). We elect to do so here and proceed with a

review of Plaintiff’s arguments on the merits.

                           III. Discussion

    Plaintiff argues that the trial court abused its discretion

by dismissing his complaint as frivolous because (1) the court

had a duty to consider his complaint on the merits and (2)

Plaintiff had a right as a third-party beneficiary to bring suit

to enforce the contract between NCPLS and IDS. We affirm.

    A. Constitutional Claims Presented to the Trial Court

    In his first argument on appeal, Plaintiff asserts that the

trial court had a duty to consider his complaint on the merits

and erred in failing to do so. Pointing out that his complaint

challenges   certain   government    actions   as   violating   “numerous

sections of the North Carolina Constitution and parts of the

United States Constitution,” Plaintiff asserts that the trial

court violated its duty, as articulated by our Supreme Court in

Leandro v. State, 346 N.C. 336, 345, 488 S.E.2d 249, 253 (1997)

(“When a government action is challenged as unconstitutional,

the courts have a duty to determine whether that action exceeds
                                 -6-
constitutional    limits.”),   by   dismissing   his   complaint   as

frivolous. We disagree.

    The trial court’s authority to review the complaint of an

inmate who files a pro se petition to proceed as an indigent is

established in section 1-110(b) of the North Carolina General

Statutes:

            Whenever a motion to proceed as an indigent
            is filed pro se by an inmate in the custody
            of the Division of Adult Correction of the
            Department of Public Safety, the motion to
            proceed as an indigent and the proposed
            complaint shall be presented to any superior
            court judge of the judicial district. This
            judge shall determine whether the complaint
            is frivolous. In the discretion of the
            court, a frivolous case may be dismissed by
            order. 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.

N.C. Gen. Stat. § 1-110(b) (2013) (italics added). This Court

has clarified that

            [a] claim is frivolous if a proponent can
            present no rational argument based upon the
            evidence or law in support of it. In
            determining    whether   a    complaint   is
            frivolous, the standard is not the same as
            in a ruling on a motion under Rule 12(b)(6).
            Instead, we look with a far more forgiving
            eye in examining whether a claim rests on a
            meritless legal theory. We review such
            dismissals for abuse of discretion.
                                         -7-
Griffith v. N.C. Dep’t of Corr., 196 N.C. App. 173, 174, 675

S.E.2d 72, 73 (2009) (citations, internal quotation marks, and

certain brackets omitted).

       Section 1-110 plainly states that the superior court judge

shall    “determine     whether    the   complaint          is   frivolous.”       As    we

noted in Griffith, this process involves reviewing the evidence

and law presented by the plaintiff and determining whether the

two, together, support a meritorious legal theory. Id. Such a

determination        necessarily      involves     a        consideration      of       the

allegations in the plaintiff’s complaint — including allegations

of   unconstitutional      government         action.       Thus,    even     accepting

Plaintiff’s     assertion      that    the     trial    court       had   a   duty      to

consider the allegations in his complaint, we find no evidence

that the trial court failed to do so here. The record indicates

that     Plaintiff     filed   his     petition        on    7    March     2012    and,

approximately one year and four months later, the trial court

concluded that the complaint was frivolous. Plaintiff does not

argue that the trial court was required to draft a more detailed

order or that the order was somehow deficient (e.g., because

Plaintiff’s claim is not, in fact, frivolous). Therefore, to the

extent    the   trial    court     had    a    duty     to       review   Plaintiff’s
                                      -8-
arguments, we conclude that it fulfilled such duty. Accordingly,

Plaintiff’s first argument is overruled.

      B. Plaintiff’s Third-Party Beneficiary Claim

      In his second argument on appeal, Plaintiff contends that

the trial court erred by dismissing his complaint as frivolous

because Plaintiff has a “right to use the courts to establish

the validity and/or enforcement of a state contract that he was

a direct third-party beneficiary of.” Plaintiff elaborates by

pointing   out    that     the   practice   of   allowing   a   third-party

beneficiary to bring an action to enforce a contract made for

his benefit is “well established in this jurisdiction.” This

argument is without merit.

      The mere existence of a third-party beneficiary’s general

contract right to bring suit to enforce an agreement between the

promisor and the promisee has no bearing on the enforceability

of that agreement. While Plaintiff is correct that a third-party

beneficiary may, under certain circumstances, bring suit against

the   primary    parties    to   a   contract,   see,   e.g.,   James   River

Equip., Inc. v. Tharpe’s Excavating, Inc., 179 N.C. App. 336,

343, 634 S.E.2d 548, 554 (2006) (“A third party beneficiary to

an agreement may properly maintain an action for its breach,

where the agreement is made for the third party’s direct benefit
                                      -9-
and the benefit accruing to him is not merely incidental.”)

(citation, internal quotation marks, and brackets omitted), this

general    right       does    not   resolve        whether      the     particular

allegations      in     Plaintiff’s     complaint         are        frivolous   or

meritorious. As the trial court’s order makes clear, Plaintiff

was barred from suing Defendants because he did not allege any

rational   legal      theory   supporting    his     claim      for    relief,   not

because    he   was    suing   Defendants      as    an   alleged       third-party

beneficiary.

     On appeal, Plaintiff makes no argument that the allegations

in his complaint are valid or, at a minimum, not frivolous.

Instead, he merely explains the legal basis for bringing suit as

a   third-party       beneficiary.    This   argument         does     not   support

overturning the trial court’s order for abuse of discretion.

Accordingly, we affirm the order of the trial court.

     AFFIRMED.

     Judges GEER and DILLON concur.

     Report per Rule 30(e).
