Mitchell v. N.C.D.O.C. ( 1995 )

Plaintiff appeals the Deputy Commissioner's Order dismissing this inmate's claim for his failure to appear and prosecute at the hearing set for December 12, 1994, noting that "plaintiff had failed to obtain a writ ad testificandum to ensure his appearance". Presumably plaintiff's November 7th letter, sent after receipt of the calendar and requesting the form for this Order, had not been associated with the file by the time of the hearing. In any case, we might reset the case for hearing, as this Commission on many occasions in the past under these circumstances (see, e.g., Dye v. N.C. Dept. of Corrections, TA-11313, 13 February 1990), but for the fact that plaintiff's affidavit fails to state a claim upon which relief may be granted. R.Civ.Pro. 12(b)(6).

Reviewing the sufficiency of the complaint sua sponte, the plaintiff fails to allege negligence which caused him injury, or to describe an employee, officer, agent or involuntary servant of the State culpable for the injury alleged. N.C.G.S. § 143-291(a). Consequently, plaintiff's claim should be, and hereby is, DISMISSED.

S/ _____________ J. RANDOLPH WARD COMMISSIONER

CONCURRING:

S/ __________________________ J. HOWARD BUNN, JR. CHAIRMAN

S/ __________________________ COY M. VANCE COMMISSIONER

JRW/tmd 3/29/95