CLARK v. PERRY
Filing
20
ORDER signed by JUDGE CATHERINE C. EAGLES on 08/28/2017, that the respondent's motion for summary judgment, Doc. 6 , is DENIED. The Recommendation is adopted to the extent stated herein. FURTHER ORDERED that in light of the respondent's notice, Doc. 16 , and the petitioner's objection, the respondent may file a motion to dismiss this case as moot within 14 days of this Order, the petitioner may file a response 14 days thereafter, and the respondent may file a reply 7 days thereafter, addressing the matters noted above. (Garland, Leah)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
JOSEPH EARL CLARK, II,
Petitioner,
v.
FRANK L. PERRY,
Respondent.
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1:16CV672
ORDER
On August 8, 2017, the United States Magistrate Judge filed a Recommendation
and notice was served on the parties pursuant to 28 U.S.C. § 636. Doc. 14. The
Magistrate Judge recommended that the respondent’s motion for summary judgment be
denied. No objections were filed as to that portion of the Recommendation, and upon
review the Court affirms and adopts that determination.
In response to the Recommendation, the respondent filed a notice, Doc. 16, stating
that it had elected to give the petitioner a new prison disciplinary hearing. As noted in
the Recommendation, the decision to vacate the prior disciplinary action and conduct a
new disciplinary hearing would appear to moot the present case. However, the petitioner
objects to that determination and contends that his claims are not rendered moot because,
inter alia, he was not afforded all of his due process rights during the rehearing. The
record does not appear to be complete, and therefore the Court will allow the respondent
14 days to file a motion to dismiss the present case as moot, with supporting information
and documentation. The petitioner will have 14 days to respond, and the respondent will
have 7 days to reply. In addition, the parties should address whether any challenge by the
petitioner to the new disciplinary hearing should be raised in a new petition after
exhaustion of available remedies, or whether the present case should be stayed to allow
the petitioner to exhaust his available remedies and then move to amend the petition to
raise his challenge to the new disciplinary hearing in this case.
IT IS THEREFORE ORDERED that the respondent’s motion for summary
judgment, Doc. 6, is DENIED. The Recommendation is adopted to the extent stated
herein.
IT IS FURTHER ORDERED that in light of the respondent’s notice, Doc. 16,
and the petitioner’s objection, the respondent may file a motion to dismiss this case as
moot within 14 days of this Order, the petitioner may file a response 14 days thereafter,
and the respondent may file a reply 7 days thereafter, addressing the matters noted above.
This, the 28th day of August, 2017.
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UNITED STATES DISTRICT JUDGE
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