Fuller v. Charlotte Mecklenburg Police Department et al

Filing 9

ORDER granting 6 Motion for Adjournment of Civil Complaint or in the Alternative a Continuance. Signed by District Judge Robert J. Conrad, Jr on 6/6/2013. (Pro se litigant served by US Mail.)(blf)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:12-cv-782-RJC
KENNETH FULLER,
Plaintiff,
vs.
CHARLOTTE-MECKLENBURG
POLICE DEPARTMENT, C.P. EUBANKS,
Defendants.
______________________________________

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ORDER

THIS MATTER is before the Court on Plaintiff’s Motion for Adjournment of Civil
Complaint or in the Alternative a Continuance until 12/05/2013, (Doc. No. 6).

The Court

construes the motion as a motion for voluntary dismissal under Rule 41 of the Federal Rules of
Civil Procedure or, alternatively, for a stay of this action.
On November 21, 2012, pro se Plaintiff Kenneth Fuller, a state court inmate currently
incarcerated at Hoke Correctional Institution in Raeford, North Carolina, filed the instant
Complaint pursuant to 42 U.S.C. § 1983. Plaintiff alleges that his federal constitutional rights
were violated when Charlotte-Mecklenburg police officer Defendant C.P. Eubanks lied about
seizing drugs that were allegedly in Plaintiff’s possession following an illegal entry into
Plaintiff’s residence. Plaintiff alleges that the constitutional violation occurred on April 20,
2011.
On November 28, 2012, the Court granted Plaintiff’s application to proceed in forma
pauperis, dismissed the Charlotte-Mecklenburg Police Department as a Defendant, and ordered
Plaintiff to submit a statement to the Court explaining whether he was convicted of drug
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possession based on the alleged unconstitutional conduct of Defendant Eubanks and, if so,
whether the conviction has been reversed or otherwise invalidated. See (Doc. No. 4). The Court
further ordered Plaintiff to clarify in his statement to the Court which specific constitutional
rights were allegedly violated.
On December 17, 2012, Plaintiff filed the pending motion. Plaintiff states that he seeks
that this matter “be adjourned for adequate time in obtaining a civil attorney to take care of this
civil complaint” unless the Court appoints one to represent him. (Doc. No. 6 at 1). Plaintiff
further states that, alternatively, he asks for a continuance in the matter until December 5, 2013.
The Court first finds that, to the extent that Plaintiff is seeking for the court to appoint
any attorney to represent him, the request is denied. Next, the Court will dismiss, rather than
continue, this action.1 The dismissal will be without prejudice to Plaintiff to refile this action at a
later date. Plaintiff is advised, however, that the applicable statute of limitations will continue to
run on any claims that he may have arising out of the allegations in the Complaint.
IT IS THEREFORE ORDERED that:
1.

Plaintiff’s Motion for Adjournment of Civil Complaint or in the Alternative a
Continuance until 12/05/2013, (Doc. No. 6), is GRANTED, and this action is
dismissed without prejudice.

2.

The Clerk is instructed to terminate this action.
Signed: June 6, 2013

1

Plaintiff could have filed a Notice of Dismissal without a Court order. See FED. R. CIV. P. 41(a)(1)(A)(i).

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