James v. N.C. Department of Correction

Opinion

*********** Pursuant to Rule T303 of the Tort Claims Rules of the North Carolina Industrial Commission, "The appellant shall, within 25 days of receipt of the transcript of the record, or receipt of notice that there will be no transcript of the record, file in triplicate with the Industrial Commission, a written statement of the particular grounds for the appeal." Rule T304 provides that, "Failure to file assignments of error may result in the dismissal of the appeal either upon the Motion of the non-appealing party or upon the Full Commission's own Motion." On July 14, 2010, the Docket Director for the Industrial Commission acknowledged receipt of plaintiff's notice of appeal and advised plaintiff that, "Forms T-44, which will be enclosed with the transcript, must be filed in triplicate within 25 days from receipt of the transcript." There is no evidence that plaintiff did not receive the Docket Director's correspondence of July 14, 2010. The transcript was filed on August 5, 2010. There is no evidence that plaintiff did not receive the transcript. Plaintiff has not filed a Form T-44 or brief with the Commission.

Plaintiff has exceeded his time to file a written statement of the particular grounds for his appeal as required by Rule T303 by more than six months. As such, plaintiff's appeal to the Full Commission is hereby dismissed with prejudice pursuant to Rule T304. No costs are taxed to plaintiff, who was permitted to proceed in formapauperis.

This the 22nd day of March, 2011.

S/___________________ LINDA CHEATHAM COMMISSIONER

CONCURRING:

S/___________________ BERNADINE S. BALLANCE COMMISSIONER

S/___________________ STACI T. MEYER COMMISSIONER