Tucker v. N.C. D.O.C. ( 2004 )

*********** The Full Commission has reviewed the prior Decision and Order based upon the record of the proceedings before Deputy Commissioner Gheen and the briefs before the Full Commission. The appealing party has not shown good ground to receive further evidence or to rehear the parties or their representatives. Upon review of the evidence, the Full Commission affirms the Decision and Order of Deputy Commissioner Gheen. *********** Based upon all the competent evidence of record the Full Commission enters the following: FINDINGS OF FACT 1. A hearing on Defendant's Motion To Dismiss was held on 12 November 2003.

2. Plaintiff appeared at the hearing but chose not to proceed with his tort claim filed 20 June 2001 with the North Carolina Industrial Commission.

*********** The foregoing Findings of Fact engender the following: CONCLUSIONS OF LAW 1. Under the provisions of the Tort Claims Act, negligence is determined by the same rules applicable to private parties.Bolkir v. N.C. State University, 321 N.C. 706, 709,365 S.E.2d 898, 900 (1988).

2. Plaintiff failed and refused to prosecute this matter. Therefore this matter should be dismissed for Plaintiff's failure to prosecute. N.C. Gen. Stat. § 1A-1, Rule 41; Swygert v.Swygert, 46 N.C. App. 173, 264 S.E.2d 902 (1980).

*********** Based upon the foregoing findings of fact and conclusions of law, the Full Commission enters the following: ORDER 1. Plaintiff's claim for damages under the Tort Claims Act is hereby DISMISSED WITH PREJUDICE for failure to prosecute his claim.

2. No costs are taxed as Plaintiff was permitted to file this civil action in forma pauperis.

This the ___ day of July 2004.

S/___________________ BERNADINE S. BALLANCE COMMISSIONER

CONCURRING:

S/_____________ PAMELA T. YOUNG COMMISSIONER

S/____________ DIANNE SELLERS COMMISSIONER