Gladden v. N.C. Department of Correction ( 2010 )

*********** The Full Commission has reviewed the prior Decision and Order based upon the record of the proceedings before Deputy Commissioner Rideout and the briefs and arguments of the parties. The appealing party has shown good grounds to reconsider the evidence; receive further evidence; rehear the parties or their representatives; and having reviewed the competent evidence of record, the Full Commission REVERSES the Decision and Order of Deputy Commissioner Rideout. FINDINGS OF FACT 1. This matter was calendared before Deputy Commissioner Rideout for hearing on March 17, 2009.

2. The Industrial Commission published a trial calendar and attempted service of process by US Certified Mail, Return Receipt Requested, #7707 0220 003 5469 0807, on February 10, 2009.

3. The US Mail Service returned the attempted mailing marked "unclaimed" with three attempts at service. The last noted attempt at service was February 26, 2009.

4. Plaintiff was not present at the hearing on March 26, 2009.

5. The Deputy Commissioner dismissed Plaintiff's state tort claim action by Decision and Award filed on March 25, 2009 for failure to prosecute.

6. Plaintiff has filed a Form T-44, Application for Review, indicating that the address at which service of process of trial calendar was mailed was no longer the address at the relevant time as he was incarcerated. Plaintiff has also presented a letter he addressed to the Superintendent of the Defendant's facility to which he was assigned stating that he had an action pending before the Industrial Commission and requesting that prison officials ensure that he would be able to attend.

7. Given the particular facts, it appears that Plaintiff's failure to prosecute was not deliberate and that his actions did not unreasonably delay the prosecution of this claim.

*********** The foregoing Findings of Fact engender the following: CONCLUSION OF LAW 1. Given the attendant facts and circumstances of Plaintiff's failure to appear and in the interests of justice, Plaintiff's state tort claim should be reset for trial. N.C. Gen. Stat. § 1A-1, Rule 41. *********** Based upon the foregoing Findings of Fact and Conclusion of Law, the Full Commission enters the following: ORDER 1. Plaintiff's claim is hereby returned to the active trial docket. The matter is referred to the Chief Deputy Commissioner to reschedule a trial upon the merits.

2. No costs are taxed to Plaintiff, who filed as an indigent in this matter.

This the 18th day of January 2010.

S/___________________ DANNY LEE McDONALD COMMISSIONER

CONCURRING:

S/___________________ PAMELA T. YOUNG CHAIR

S/___________________ BERNADINE S. BALLANCE COMMISSIONER