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    "judges": [
      "Chief Judge BROCK and Judge MITCHELL concur."
    ],
    "parties": [
      "ROBERT P. WILLIAMS v. G. PERRY GREENE, EDWARD W. JONES and J. D. CABE"
    ],
    "opinions": [
      {
        "text": "HEDRICK, Judge.\nIt is uncontroverted that the plaintiff in this case is a permanent state employee as defined in G.S. 126-39 and is entitled to all statutory rights which accompany his status. Specifically, the State Personnel Act, enacted in Chapter 126 of the General Statutes, provides that a permanent state employee shall not be discharged \u201cexcept for just cause\u201d and in the event of his discharge he must be furnished with a written statement of the acts or omissions which led to such action. G.S. 126-35. Thereafter, he may appeal to the head of the department and to the State Personnel Commission which has the authority under G.S. 126-4(9) to investigate and take corrective action concerning discharges of employees. An employee who is dissatisfied with the decision of the Commission may seek judicial review thereof in accordance with provisions in the Administrative Procedure Act, G.S. 150A-43, et seq., which is expressly applicable to state employees by the terms of G.S. 126-43.\nDefendants, citing Stevenson v. Department of Insurance, 31 N.C. App. 299, 229 S.E. 2d 209, cert. denied, 291 N.C. 450, 230 S.E. 2d 767 (1976), contend that the trial court was without authority to grant relief in this proceeding until the plaintiff had exhausted these administrative remedies. In Stevenson the plaintiff, who had been discharged from a position in the Department of Insurance, sought and obtained preliminary injunctive relief in the Superior Court prior to a hearing before the State Personnel Commission. On appeal Judge Britt, speaking for this Court, discussed Article 4 of the Administrative Procedure Act entitled \u201cJudicial Review\u201d upon which plaintiff was asserting his right to an injunction, and concluded that the statutes in that Article authorize \u201ca stay order only of those final agency decisions in which the person aggrieved has exhausted his administrative remedies.\u201d 31 N.C. App. at 302-3, 229 S.E. 2d at 211. Thus, the narrow holding of Stevenson is that a party must exhaust his administrative remedies before he seeks judicial review under Chapter 150A of the General Statutes.\nThe plaintiff acknowledges the Stevenson decision but contends that the principles therein are not applicable to the present case since \u201che neither sought nor obtained relief under G.S. 150A-48.\u201d In Stevenson the plaintiff alleged that there was no just cause to support his dismissal and sought injunctive relief in the Superior Court solely on that basis. His complaint contained no allegations stating a claim under the United States Constitution or any federal statute. In contrast, the plaintiff in this case alleges an improper dismissal in violation of his civil rights under the Civil Rights Act of 1871, 42 U.S.C. \u00a7 1983.\nCongress, in the enactment of 28 U.S.C. \u00a7 1343, conferred on the United States District Courts original jurisdiction of claims arising under 42 U.S.C. \u00a7 1983. According to common interpretation \u201coriginal jurisdiction\u201d should be distinguished from \u201cappellate jurisdiction\u201d and means that the federal District Court shall have the power to hear such cases in the first instance. It follows that since the phrase does not contemplate \u201cexclusive jurisdiction,\u201d the state courts have concurrent jurisdiction with the federal court to entertain \u00a7 1983 claims. New Times, Inc. v. Arizona Board of Regents, 20 Ariz. App. 422, 513 P. 2d 960 (1973), vacated on other grounds, 110 Ariz. 367, 519 P. 2d 169 (1974); Brown v. Pitchess, 13 Cal. 3d 518, 119 Cal. Rptr. 204, 531 P. 2d 772 (1975); Alberty v. Daniel, 25 Ill. App. 3d 291, 323 N.E. 2d 110 (1974); Holt v. City of Troy, 78 Misc. 2d 9, 355 N.Y.S. 2d 94 (1974). Thus, unless the principle enunciated in Stevenson is applicable to a \u00a7 1983 action, the Superior Court had jurisdiction to grant preliminary relief in this case.\nThe exhaustion doctrine has been employed by the courts in appropriate cases to require a plaintiff to take advantage of available administrative remedies before resorting to the courts for redress of his grievances. K. C. Davis, Administrative Law of the Seventies, Supplementing Administrative Law Treatise \u00a7 20.01 (1976). However, as a general rule the failure of a plaintiff to exhaust his state administrative remedies has not been considered a bar to a claim asserted under \u00a7 1983. Davis, supra \u00a7 20.01-1, at 452. In McCray v. Burrell, 516 F. 2d 357 (4 Cir. 1975) (en banc), the United States Court of Appeals for the fourth circuit after a comprehensive discussion recognized the general rule emanating from recent Supreme Court decisions that exhaustion of state administrative remedies is not required in a \u00a7 1983 action by state prisoners. In Phillips v. Puryear, 403 F. Supp. 80 (W.D. Va. 1975), a federal District Court followed McCray holding that the exhaustion doctrine was inapplicable in a \u00a7 1983 action by a state teacher contesting his dismissal. In view of the foregoing authority we are compelled to conclude that where as in the present case a state employee asserts civil rights violations under \u00a7 1983 for his wrongful dismissal, the Superior Court retains its traditional power to grant preliminary injunctive relief without requiring him to exhaust the administrative remedies provided in Chapter 126 of the General Statutes.\nThe defendant also contends that the trial court erred in its entry of a preliminary injunction since the plaintiff has failed to demonstrate any irreparable injury. The North Carolina courts have adhered to the familiar rule that a preliminary injunction should issue pending trial on the merits only when \u201c(1) there is probable cause that plaintiff will be able to establish the rights which he asserts and (2) there is reasonable apprehension of irreparable loss unless interlocutory injunctive relief is granted, or unless interlocutory injunctive relief appears reasonably necessary to protect plaintiff\u2019s rights during the litigation.\u201d Pruitt v. Williams, 288 N.C. 368, 372, 218 S.E. 2d 348, 351 (1975). In our review of the entry of the injunction by the Superior Court we are not bound by its findings of fact but may consider the evidence and determine independently the plaintiff\u2019s right to preliminary injunctive relief. Waff Bros. v. Bank, 289 N.C. 198, 221 S.E. 2d 273 (1976).\nWithout examining the prospects of plaintiff\u2019s eventual success, we think he has failed to show any irreparable loss which would likely result in the absence of injunctive relief. In Sampson v. Murray, 415 U.S. 61 (1974), the United States Supreme Court confronted the claim of a federal probationary employee who challenged her dismissal in the United States District Court prior to a hearing pursuant to her right of appeal to the Civil Service Commission. The trial court granted a preliminary injunction against her discharge, and the Court of Appeals affirmed. The Supreme Court acknowledged that the District Court had the equitable power to grant a preliminary injunction in such a case but emphasized that it \u201cis bound to give serious weight to the obviously disruptive effect which the grant of the temporary relief awarded . . . was likely to have on the administrative process.\u201d 415 U.S. at 83. The Court concluded that the plaintiff \u201cat the very least must make a showing of irreparable injury sufficient in kind and degree to override these factors.\u201d 415 U.S. at 84. According to this analysis, the element of irreparable harm cannot be considered in a vacuum. A trivial harm, although it may be irreparable, would not necessarily entitle a plaintiff to injunctive relief. The judge in exercising his discretion should engage in a balancing process, weighing potential harm to the plaintiff if the injunction is not issued against the potential harm to the defendant if injunctive relief is granted. In effect, the harm alleged by the plaintiff must satisfy a standard of relative substantiality as well as irreparability. This view comports with principles recognized by our own Supreme Court. Huggins v. Board of Education, 272 N.C. 33, 157 S.E. 2d 703 (1967). See also D. Dobbs, Remedies \u00a7 2.10, at 108-9 (1973); J. Leubsdorf, The Standard for Preliminary Injunctions, 91 Harv. L. Rev. 525 (1978).\nIn this case the trial court found a likelihood that plaintiff would suffer irreparable injury if he were not reinstated in that he would be without income and his reputation would be damaged. It is significant in this regard that our legislature has provided a means of compensating a state employee who has been wrongfully discharged with reinstatement, back pay and attorneys\u2019 fees. G.S. 126-4(9) and (11). In view of the fact that the plaintiff is assured that he will be compensated for all loss of income and attorneys\u2019 fees if he should ultimately succeed on the merits, it can hardly be maintained that the plaintiff\u2019s temporary loss of income constitutes an irreparable loss. Sampson v. Murray, supra at 90. Furthermore, any damage to the plaintiff\u2019s reputation resulting from a denial of the preliminary injunction must be balanced against the possible harm to the State in retaining plaintiff on the North Carolina State Highway Patrol. When all factors are weighed, we think that the plaintiff\u2019s evidence falls short of showing irreparable harm sufficiently substantial to override the countervailing considerations.\nWe hold that the preliminary injunction was improperly granted. The order appealed from is vacated and the cause is remanded to the Superior Court for further proceedings.\nVacated and remanded.\nChief Judge BROCK and Judge MITCHELL concur.",
        "type": "majority",
        "author": "HEDRICK, Judge."
      }
    ],
    "attorneys": [
      "Blackwell M. Brogden for the plaintiff appellee.",
      "Attorney General Edmisten, by Deputy Attorney General William W. Melvin, for the defendant appellants."
    ],
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    "head_matter": "ROBERT P. WILLIAMS v. G. PERRY GREENE, EDWARD W. JONES and J. D. CABE\nNo. 7714SC447\n(Filed 18 April 1978)\n1. Administrative Law \u00a7 5; Injunctions \u00a7 11\u2014 dismissal of state employee \u2014 civil rights violations asserted \u2014 no exhaustion of administrative remedies required\nWhere a state employee asserts civil rights violations under 42 U.S.C. \u00a7 1983 for his wrongful dismissal, the Superior Court retains its traditional power to grant preliminary injunctive relief without requiring him to exhaust the administrative remedies provided in Chapter 126 of the General Statutes.\n2. Injunctions \u00a7 13\u2014 preliminary injunction \u2014 conditions of issuing\nA preliminary injunction should issue pending trial on the merits only when (1) there is probable cause that plaintiff will be able to establish the rights which he asserts and (2) there is reasonable apprehension of irreparable loss unless interlocutory injunctive relief is granted, or unless interlocutory injunctive relief appears reasonably necessary to protect plaintiff\u2019s rights during the litigation.\n3. Injunctions \u00a7 13.1\u2014 preliminary injunction \u2014 show of substantial, irreparable injury required\nIn determining whether to grant a preliminary injunction, the judge in exercising his discretion should engage in a balancing process, weighing potential harm to the plaintiff if the injunction is not issued against the potential harm to the defendant if injunctive relief is granted; in effect, the harm alleged by the plaintiff must satisfy a standard of relative substantiality as well as irreparability.\n4. Injunctions \u00a7 13.2\u2014 dismissal of highway patrolman \u2014 no substantial, irreparable injury \u2014 preliminary injunction improper\nA former State highway patrolman who alleged that he was wrongfully discharged from his employment after his involvement in a roadblock in which a hostage was killed failed to show substantial, irreparable injury entitling him to a preliminary injunction, since plaintiff claimed that he would be without income and his reputation would be damaged if he were not reinstated, but a state employee who has been wrongfully discharged is entitled, pursuant to G.S. 126-4(9) and (11), to reinstatement, back pay and attorney\u2019s fees, and thus plaintiff\u2019s temporary loss of income would not constitute irreparable loss; furthermore, any damage to the plaintiff\u2019s reputation resulting from a denial of the preliminary injunction must be balanced against the possible harm to the State in retaining plaintiff on the N.C. State Highway Patrol.\nOn certiorari to review the order of Lee, Judge. Order entered 24 January 1977 in Superior Court, DURHAM County. Heard in the Court of Appeals 6 March 1978.\nCivil action wherein plaintiff seeks damages and a permanent injunction against defendants, G. Perry Greene, Secretary of the North Carolina Department of Transportation; Edward W. Jones, Commander of the North Carolina State Highway Patrol; and J. D. Cabe, Acting Commander of the North Carolina State Highway Patrol. In his complaint the plaintiff alleged that he was wrongfully discharged from the State Highway Patrol in violation of his constitutional rights, 42 U.S.C. \u00a7 1983 (1970).\nAfter a hearing on 7 January 1977 the trial judge found facts which are summarized and quoted as follows: On 22 December 1976 the plaintiff was dismissed from his employment as a trooper of the State Highway Patrol\nby order of the defendant Perry G. Greene [sic] on the alleged grounds that he was imprudent and careless in the use of his weapon at a roadblock on Interstate 85 at or about 1:04 a.m. on the 15th day of November, 1976; and that he jeopardized the safety of a hostage on that date by firing into a vehicle, and that he used excessive force while attempting to apprehend a dangerous criminal.\nThe hostage, a Virginia State Patrolman, was killed in the incident. The order dismissing the plaintiff culminated an investigation conducted by the Department of Transportation of which the plaintiff was not informed until his dismissal. At the time of his dismissal the plaintiff was advised of his right to appeal to the State Personnel Commission. He promptly requested a hearing before the Commission but none has been scheduled at this time. Subsequently, the plaintiff\u2019s dismissal was disclosed to the media and widely publicized. The adverse publicity has damaged the plaintiff\u2019s professional reputation and foreclosed other employment opportunities.\nThe court further found that the plaintiff had been deprived of liberty without due process of law in violation of 42 U.S.C. \u00a7 1983, the 14th Amendment to the United States Constitution, and Article I, Section 1 of the North Carolina Constitution; that \u201c[ujnless the defendants are restrained from terminating the plaintiff\u2019s employment and depriving him of his rights . . . [he] will suffer irreparable injury in that he is without his employment, no income [sic], and has financial obligations which he cannot meet if his livelihood is withheld,\u201d and \u201cthat immediate and irreparable injury to . . . [his] professional reputation will continue\u201d; and that the plaintiff has no remedy affording review of his dismissal prior to a hearing before the State Personnel Commission.\nOn the basis of these findings the trial judge concluded that the plaintiff was entitled to a preliminary injunction \u201cpending the exhaustion of his administrative remedies and further proceedings in this cause\u201d and ordered the defendants \u201cto reinstate the plaintiff to full duty as a member of the North Carolina State Highway Patrol\u201d and to continue to pay him his normal salary including back pay. The court added that the defendants in their discretion could place the plaintiff \u201con administrative leave pending the final determination of this matter.\u201d From this order, the defendants appealed.\nBlackwell M. Brogden for the plaintiff appellee.\nAttorney General Edmisten, by Deputy Attorney General William W. Melvin, for the defendant appellants."
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