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Slade v. Vernon6/1/1993
to summary judgment on this issue. Furthermore, our courts have held that plaintiffs may not maintain a suit against defendants in their official capacities for violation of section 1983 under these circumstances, because the only remedy plaintiffs sought is monetary damages. Lenzer, supra. We therefore reverse the denial of summary judgment as to this issue as well.
Affirmed in part, reversed in part.
Judge GREENE concurs in a separate opinion.
Judge WYNN concurs in the result only.
Judge GREENE Concurring.
I write separately to emphasize that, except to the extent that defendant Vernon has furnished a bond pursuant to N.C.G.S. § 162-8 (1987), and except to the extent that defendant's conduct violates the provisions of the bond, defendants have full immunity from plaintiffs' claim. See State ex rel. Williams v. Adams, 288 N.C. 501, 219 S.E.2d 198 (1975) (N.C.G.S. § 58-76-5 held to enlarge
conditions of bond furnished under N.C.G.S. § 162-8 to include liability for wrongful death of prisoner). Furthermore, because we are treating this action as one on the sheriff's bond, unless the surety on the bond is joined as a party within a reasonable time after remand, the action must be dismissed. J & B Slurry Seal Co. v. Mid-South Aviation, Inc., 88 N.C. App. 1, 17, 362 S.E.2d 812, 822 (1987).
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