Harper v. Lemon et al

Filing 26

ORDER on STATUS REVIEW. Signed by Chief Judge Frank D. Whitney on 10/14/15. (Pro se litigant served by US Mail.)(tob)

DISTRICT COURT OF THE UNITED STATES
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:14-cv-182-FDW
MICHAEL S. HARPER,

)
)
Plaintiff,
)
)
vs.
)
)
TERRY LEMON,
)
FNU WHITLEY,
)
)
Defendants.
)
___________________________________ )

ORDER

THIS MATTER is before the Court on a status review. Plaintiff filed this action on April
14, 2014, pursuant to 42 U.S.C. 1983, alleging excessive force was used against him at Lanesboro
Correctional Institution, naming “FNU Whitley” as one of two Defendants. Defendant FNU
Whitley is alleged to have been employed as a correctional officer at Lanesboro Correctional
Institution at all relevant times. On June 10, 2015, this Court received an unexecuted summons as
to Defendant FNU Whitley. (Doc. No. 14). The unexecuted summons, which the U.S. Marshal
attempted to serve on FNU Whitley, states “unknown first name and currently no officers
employed at Lanesboro CI with the last name Whitley.” (Id. at 1).
On August 19, 2015, this Court entered an order allowing Plaintiff to seek limited
discovery from the North Carolina Attorney General for the sole purpose of seeking information
as to whether a correctional officer with the last name of Whitley was employed at Lanesboro at
the time of the alleged excessive force incident giving rise to this action. (Doc. No. 21). The Court
noted in its order that if Plaintiff did not seek such discovery within 30 days of this Order, the
Court would likely dismiss the action against Defendant FNU Whitley based on Plaintiff’s failure
1

to prosecute this action against FNU Whitley.
The Court has not received any indication from Plaintiff as to whether he has obtained the
name of the person identified in the Complaint as “FNU Whitley.” Plaintiff shall notify the Court,
within ten days of this Order, as to the status of his claim as to this one Defendant and what
discovery, if any, he has received from the North Carolina Attorney General as to the identity of
this person. If Plaintiff fails to respond, “FNU Whitney” will be dismissed as a named Defendant
in this action.
IT IS SO ORDERED.

2