Wright v. City of Goldsboro Police Dept. ( 2010 )

* * * * * * * * * * On August 19, 2009, Commissioner Laura Mavretic entered an Order setting this matter for pre-hearing videoconference on Defendant's Motion to Dismiss Plaintiff's claim which was filed on August 4, 2009. The matter was subsequently scheduled for pretrial conference before Deputy Commissioner Gheen in Raleigh on November 17, 2009, despite the fact that Plaintiff was incarcerated at the time. While the record contains a US mail Domestic Return Receipt indicating that an article addressed to Plaintiff, presumably the notice of the pretrial conference, was delivered on October 2, 2009, the signature of the individual who received the article is illegible. The address listed on the Domestic Return Receipt, 3005 Anaconda Dr. in Tarboro, North Carolina, is the address for the Edgecombe County Jail.

Plaintiff did not appear for the November 17, 2009 pretrial conference. In an Order dated December 2, 2009, Deputy Commissioner Gheen dismissed Plaintiff's claim for failure to prosecute. Plaintiff filed his Form T-44 and an accompanying letter on June 18, 2010. In those documents, Plaintiff indicates that he has been incarcerated since June 8, 2008 and that it was for this reason that he failed to appear for the November 17, 2009 pretrial conference.

The undersigned find Plaintiff's explanation credible and are of the opinion that Deputy Commissioner Gheen's December 2, 2009 order of dismissal should be, and is hereby VACATED.

Accordingly, the case is hereby REMANDED to the Deputy Commissioner for initial hearing on the merits and presentation of evidence before a Deputy Commissioner.

This the 13th day of December, 2010.

S/_____________ LINDA CHEATHAM COMMISSIONER

CONCURRING:

S/______________ PAMELA T. YOUNG CHAIR

S/________________ CHRISTOPHER SCOTT COMMISSIONER