*********** Upon review of the competent evidence of record with reference to the errors assigned, and finding no good grounds to receive further evidence, reconsider the evidence or rehear the parties or their representatives, the Full Commission hereby affirms the Decision and Order of the Deputy Commissioner.
*********** Based on the evidence presented, the Full Commission adopts the Findings of Fact of the Deputy Commissioner and finds as follows:
FINDINGS OF FACT 1. A hearing on Defendant's, North Carolina Department of Correction's (hereinafter "NCDOC"), Motion To Dismiss was held on October 11, 2004.
2. Plaintiff, Alan Meadows (hereinafter "Meadows") was transported to the Albemarle Correctional Institution to permit the hearing of NCDOC's Motion. Correctional officers informed the Deputy Commissioner that Meadows became distraught during the receiving process at Albemarle Correctional Institution and stated that he wanted to go back to Lanesboro Correctional Institution and not appear for hearing.
3. Meadows willfully refused to appear at hearing and the NCDOC was present and ready to proceed.
*********** Based on the foregoing Findings of Facts, the Full Commission enters the following:
CONCLUSIONS OF LAW 1. Under the provisions of the Tort Claims Act, negligence is determined by the same rules applicable to private parties. Bolkir v. N.C. State University,321 N.C. 706, 709, 365 S.E.2d 898, 900 (1988).
2. Meadows willfully refused and failed to appear at hearing to go forward with his tort claim and his claim should be dismissed for failure to prosecute. See N.C. Gen. Stat. § 1A-1, Rule 41.
*********** Based upon the foregoing Findings of Facts and Conclusions of Law, the Full Commission enters the following:
ORDER The foregoing Findings of Fact and Conclusions of Law engender the following:
1. Meadow's claim under the Tort Claims Act must be and is hereby DISMISSED WITH PREJUDICE.
2. No costs are taxed as Meadows was permitted to file this civil action in forma pauperis.
This the ___ day of October 2005.
S/___________________ BERNADINE S. BALLANCE COMMISSIONER
CONCURRING:
S/_______________ LAURA K. MAVRETIC COMMISSIONER
S/_____________ PAMELA T. YOUNG COMMISSIONER