Caballero v. Boney et al

Filing 27

ORDER that Plaintiff shall have ten (10) days from the date of this Order in which to either file a Notice providing additional information about Defendant Smith or file a Response to this Order showing cause for why he has fa iled to comply with the Courts Order of September 28, 2018. If Plaintiff fails to do so, Plaintiffs claims against Defendant Smith will be dismissed without further notice to Plaintiff. Signed by Chief Judge Frank D. Whitney on 10/11/18. (Pro se litigant served by US Mail.)(tob)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:16-cv-151-FDW
ALFONZO CABALLERO,

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Plaintiff,
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vs.
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PHILLIP BONEY, et al.,
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Defendants.
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____________________________________ )

ORDER

THIS MATTER is before the Court on periodic status review.
Pro se Plaintiff’s Complaint that was filed pursuant to 42 U.S.C. § 1983 passed initial
review on claims of excessive force and discrimination as to several Defendants. (Doc. No. 14).
The Court ordered the Clerk to commence the procedure for waiving service of process pursuant
to Local Rule 4.3 and Waivers of Service were executed by Defendants McIntosh, older, Burke,
and Mack. (Doc. No. 21). NC DPS filed a sealed Notice providing the last known addresses for
Defendants Boney and Heh, and the U.S. Marshal was instructed to attempt service on those
Defendants. (Doc. No. 22, 23). However, NC DPS was unable to identify Defendant Smith based
on the allegations in the Complaint and a review of NC DPS records. (Doc. No. 22).
On September 28, 2018, the Court instructed Plaintiff to file a Notice within 10 days
providing any and all information about Defendant Smith to assist NC DPS in identifying the
individual against whom Plaintiff intends to proceed. (Doc. No. 23). Plaintiff was cautioned that
the failure to comply may result in dismissal of the claims against Defendant Smith. (Id.). The time
for filing a Notice with regards to Defendant Smith has expired and Plaintiff has failed to comply.
Plaintiff has failed to provide additional identifying information that would permit
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Defendant Smith to be served. It appears that Plaintiff may have abandoned his claims against
Defendant Smith. Plaintiff shall file, within ten (10) days of this Order, a Notice as required in the
Court’s September 28, 2018, Order, or shall file a Response to this Order explaining why he has
failed to do so. Failure to comply with this Order will result in dismissal of the claims against
Defendant Smith without further notice.
In addition, it appears from NC DPS records that Plaintiff has been transferred from Marion
C.I. to Tabor C.I. and he has not filed a Notice of Change of Address with the Court. Plaintiff is
reminded that it is his responsibility to keep the Court apprised of his current address at all times.
Plaintiff’s failure to do so may lead to dismissal of this action for lack of prosecution.
IT IS, THEREFORE, ORDERED that:
(1)

Plaintiff shall have ten (10) days from the date of this Order in which to either
file a Notice providing additional information about Defendant Smith or file a
Response to this Order showing cause for why he has failed to comply with the
Court’s Order of September 28, 2018. If Plaintiff fails to do so, Plaintiff’s claims
against Defendant Smith will be dismissed without further notice to Plaintiff.

(2)

The Clerk of Court is instructed to mail a copy of this Order and the September 28,
2018, Order, (Doc. No. 23), to Plaintiff at his address of record at Marion C.I. as
well as at Tabor C.I.
Signed: October 11, 2018

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