GRADY v. WHITE

No. 5:16-cv-41-FDW.

TRACEY TERRELL GRADY, Plaintiff, v. SUSAN WHITE, et al., Defendants.

United States District Court, W.D. North Carolina, Statesville Division.

Editors Note
Cause: Prisoner Civil Rights
Nature of Suit: 550 Prisoner: Civil Rights
Source: PACER


Attorney(s) appearing for the Case

Tracey Terrell Grady, Plaintiff, Pro Se.


ORDER

FRANK D. WHITNEY, Chief District Judge.

THIS MATTER comes before the Court on Plaintiff's "Notice of Appeal to be Filed," (Doc. No. 54), as well as Plaintiff's failure to comply with the Court's Order granting Plaintiff the opportunity to amend his complaint, (Doc. No. 57).

Pro se Plaintiff Tracey Grady, a state court inmate incarcerated at Tabor Correctional Institution in Tabor City, North Carolina, filed this action on March 4, 2016, pursuant to 42 U.S.C. § 1983. He alleges that various Defendants violated his constitutional rights on April 30, 2015, August 13, 2015, and May 5, 2015, by negligently allowing him to fall down some stairs while restrained, failing to protect him from other inmates, and inflicting cruel and unusual punishment. In an Order dated December 5, 2016, this Court dismissed the complaint without prejudice for failure to state a claim upon which relief can be granted. (Doc. No. 43).

Plaintiff appealed and filed two pro se motions that were docketed as motions for reconsideration on December 27, 2016, and January 19, 2017. (Doc. No. 47, 52, 54). On April 24, 2017, the Fourth Circuit Court of Appeals dismissed the appeal for lack of jurisdiction and remanded to allow Plaintiff an opportunity to file an amended complaint. (Doc. No. 55). On June 5, 2017, the Court dismissed as moot the motion for reconsideration docketed on December 27, 2016, and granted Plaintiff leave to file an amended complaint within twenty-one days. (Doc. No. 57). The Court expressly warned Plaintiff that his failure to amend the complaint in accordance with the Court's order would result in dismissal without prejudice and without further notice. (Id. at 2). No amended complaint has been filed to date and the deadline to do so expired on June 29, 2017.

The January 19, 2017, motion for reconsideration that is presently before the Court is in the nature of a motion to alter or amend the prior judgment of the Court under Rule 59(e) of the Federal Rules of Civil Procedure. (Doc. No. 54). In it, Plaintiff states his desire to appeal the Court's dismissal of his complaint, objects to the Court's denial of his motion for the appointment of counsel, generally alleges that the Court is biased in favor of the Defendants and that the dismissal resulted from a conspiracy, conclusively alleges that he stated a facially sufficient claim that is not frivolous or malicious, and requests that the case be reopened and set for trial.

The motion for reconsideration is duplicative of the motion for reconsideration that was docketed on December 27, 2017, and is moot for the same reasons. See (Doc. No. 57). Therefore, the Court will dismiss the Plaintiff's motion for reconsideration as moot. Moreover, Plaintiff has failed to respond to this Court's order giving him the opportunity to cure the deficiencies in his complaint and the time to do so has now expired. This action will therefore be dismissed without prejudice for failure to prosecute. To the extent that Plaintiff renews his request for the appointment of counsel, this is dismissed as moot in light of his failure to prosecute this action.

IT IS, THEREFORE, ORDERED

(1) Plaintiff's Motion for Reconsideration and Motion to Appoint Counsel, (Doc. No. 54), is DISMISSED AS MOOT. (2) This action is dismissed without prejudice. (3) The Clerk of this Court is directed to terminate this action.

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