Thorpe v. Gowans et al

Filing 73

ORDER that this action is DISMISSED WITHOUT PREJUDICE as to Defendants Phillip A. Carswell and David A. Stephens. FURTHER ORDERED that the remaining parties shall notify the Court within 14 days of this Order whether they object to a judicial settlement conference in this matter. Signed by Chief Judge Martin Reidinger on 11/18/2021. (Pro se litigant served by US Mail.)(khm)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION
CIVIL CASE NO. 5:18-cv-00162-MR

MARCUS A. THORPE,

)
)
Plaintiff,
)
)
vs.
)
)
ANITA J. GOWANS, et al.,
)
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Defendants.
)
_______________________________ )

ORDER

THIS MATTER is before the Court sua sponte.
The pro se incarcerated Plaintiff filed this action pursuant to 42 U.S.C.
§ 1983, addressing incidents that allegedly occurred at the Alexander
Correctional Institution.

[Doc. 1].

The Complaint passed initial review

against several Defendants including Phillip A. Carswell and David A.
Stephens, for the use of excessive force. [See Doc. 7]. Defendants Carswell
and Stephens were served process, but they have not appeared or otherwise
defended this action. [Docs. 15, 16]. The Plaintiff has not taken any further
action with respect to these Defendants.
On October 26, 2021, the Court ordered the Plaintiff to take further
action to prosecute this case against Defendants Stephens and Carswell
within fourteen days. [Doc. 68]. He was cautioned that the failure to take

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any such further action would result in the dismissal of these Defendants
without prejudice and without further notice. [Id.].
The Plaintiff has filed a Response stating that he is unable to “tak[e]
further action in locating defendants Stephens and Carswell” due to his
present incarceration. [Doc. 71]. He asks the Court to “subpoena the said
defendant to stand trial.” [Id. at 1].
The Plaintiff has failed to take any action against Defendants Stephens
and Carswell, who have already been located and served. The case is
otherwise ready for trial as to the other remaining defendants. The claims
as to Defendants Stephens and Carswell will therefore be dismissed without
prejudice for lack of prosecution, so that the case can proceed. See Fed. R.
Civ. P. 41(b) (“If the plaintiff fails to prosecute or to comply with these rules
or a court order, a defendant may move to dismiss the action or any claim
against it.”); Link v. Wabash R.R. Co., 370 U.S. 626, 630-33 (1962) (although
Rule 41(b) does not expressly provide for sua sponte dismissal, Rule 41(b)
does not imply any such restriction and a court has the inherent power to
dismiss a case for lack of prosecution or violation of a court order).
The remaining parties are notified that, unless they object within
fourteen (14) days of this Order, this case will be referred for a judicial

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settlement conference pursuant to Local Civil Rule 16.3(d), in an effort to
settle this matter without a trial.
The parties are advised that, should a settlement conference be
undertaken in this matter to facilitate settlement, there is no requirement that
the case settle through such a conference. Rather, if a judicial settlement
conference were unsuccessful, the matter would proceed to trial in
accordance with the terms of the Court’s summary judgment Order. Should
the parties object to a judicial settlement conference in this matter, the matter
will be set for trial to occur as soon as feasible.
IT IS, THEREFORE, ORDERED that this action is DISMISSED
WITHOUT PREJUDICE as to Defendants Phillip A. Carswell and David A.
Stephens.
The Clerk of Court is directed to terminate Phillip A. Carswell and David
A. Stephens as Defendants.
IT IS FURTHER ORDERED that the remaining parties shall notify the
Court within fourteen (14) days of this Order whether they object to a judicial
settlement conference in this matter.

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IT IS SO ORDERED.

Signed: November 18, 2021

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