State of North Carolina in the Office Of s12

STATE OF NORTH CAROLINA IN THE OFFICE OF ADMINISTRATIVE HEARINGS COUNTY OF PENDER 04 DOJ 1078 ______

Randall Douglas Hughes, ) Petitioner, ) ) v. ) PROPOSAL FOR DECISION ) NC Criminal Justice Education and ) Training Standards Commission, ) Respondent. ) ______

THIS MATTER is before the undersigned Augustus B. Elkins II, Administrative Law Judge, on Respondent’s motion to dismiss this contested case for Petitioner’s failure to prosecute. A second request was served on the Petitioner with an Order that the Petitioner file Prehearing Statements. This followed a previous Notice of Contested Case and Assignment and an Order for Prehearing Statements served on Respondent and Petitioner requiring the parties to file a Prehearing Statement within 30 days of that Order. To date, the Petitioner has not responded to any order nor has Petitioner filed Prehearing Statements. The Undersigned having considered the entire record finds that the matter is now ripe for disposition on the issue of whether the Petition should be dismissed for Petitioner’s failure to prosecute the case.

STANDARD OF REVIEW

N.C. GEN. STAT. § 150B-40 provides that the provisions of Article 3A of Chapter 150B shall govern a contested case in which the Respondent requests an administrative law judge (ALJ) from the Office of Administrative Hearings (OAH). That same N.C. GEN. STAT. § 150B-40 (under 40(e)) states that the administrative law judge assigned to hear a contested case under Article 3A shall sit in place of the agency and “shall have the authority of the presiding officer in a contested case.” Again in N.C. GEN. STAT. § 150B-40 it is stated in 40(c) that the presiding officer may “regulate the course of the hearings, set the time and place for continued hearings , and fix the time for filing of briefs and other documents.”

Moreover, under N.C. GEN. STAT. § 150B-41(c) “disposition may be made of a contested case” by several cited methods, one of which is default. According to Black’s Law Dictionary (Fifth Edition), default as it applies to the disposition or judgment of a case cites that when a party against whom affirmative relief is sought has failed to plead or otherwise defend, “he is in default and a judgment” may be entered.

Whether a party has manifested an intent to thwart the progress of an action or has engaged in some delaying tactic may be inferred from the facts surrounding the delay in the prosecution of the case. See Link v. Wabash R.R. Co., 370 U.S. 626, 633, 82 S.Ct. 1386, 1393, 8 L.Ed.2d 734, 739-40 (1962).

FINDINGS OF FACT

1. A Notice of Contested Case and Assignment and the Order for Prehearing Statements were filed and served on the Petitioner and the Respondent on June 29, 2004. The Respondent and Petitioner were directed to file Prehearing Statements pursuant to an ORDER issued by the Undersigned on that same date which mandated the filing of Prehearing Statements within 30 days of the date of the Order. These documents and all subsequent documents were mailed to Petitioner. The Respondent filed their Prehearing Statement on July 23, 2004. By letter filed in the Office of Administrative Hearings on July 23, 2004, Petitioner requested an extension of time for the filing of his Prehearing Statement. The Undersigned granted the request and ordered that Petitioner had until August 27, 2004 in which to file his Prehearing Statement. On September 1, 2004, Respondent filed a Motion to Dismiss. On September 3, 2004 and again on September 14 2004 (to two different addresses), the undersigned Administrative Law Judge (ALJ) assigned to this case, again Ordered Petitioner to file Prehearing Statements and respond to Respondent’s motion on or before September 23, 2004. To date, the Petitioner has not responded to the Undersigned’s order nor has Petitioner filed any Prehearing Statement.

2. The Petitioner has manifested an intention to thwart the progress of this contested case by refusal to file Prehearing Statements and refusal to respond to the orders of the Office of Administrative Hearings. Likewise, Petitioner, by failure to respond through a Prehearing Statement despite two orders by the Undersigned has appeared to the Undersigned to have abandoned interest in this contested case and by Petitioner’s failure to plead its version of the facts as required by the Prehearing Statement, concurs with Respondent’s facts regarding the above-cited matter.

3. The Undersigned has considered actions less drastic for disposing of this contested case and determines that less drastic actions will not suffice. The lack of any response whatsoever to the Office of Administrative Hearings prohibits even an examination by the ALJ of excusable neglect by Petitioner. Therefore, no less action than disposing of this case by default (dismissal) would be effective in ensuring compliance with the Orders of the Undersigned and would best serve the interests of justice.

CONCLUSION OF LAW

Imposition of sanctions because of the Petitioner’s failure to prosecute and disposition of this case by default in accordance with N.C. GEN. STAT. § 150B-41 and N.C. GEN. STAT. § 1A-1, Rule 41 of the North Carolina Rules of Civil Procedure is proper and lawful because of the Petitioner’s failure to comply with two interlocutory orders and Petitioner’s failure to file a Prehearing Statement in this matter.

2 PROPOSAL FOR DECISION

NOW, THEREFORE, based on the foregoing, the Undersigned hereby finds proper authoritative support of the Conclusion of Law noted above and hereby imposes sanctions, finding in favor of Respondent regarding all matters contained within this contested case. Respondent’s finding of probable cause is correct and denial of Petitioner’s application for certification as a law enforcement officer is proper and lawful.

NOTICE

The agency making the final decision in this contested case is required to give each party an opportunity to file exceptions to this Proposal for Decision, to submit proposed Findings of Fact and to present oral and written arguments to the agency. N.C.G.S. § 150B-40(e).

The agency that will make the final decision in this contested case is the North Carolina Criminal Justice Education and Training Standards Commission.

A copy of the final agency decision or order shall be served upon each party personally or by certified mail addresses to the party at the latest address given by the party to the agency and a copy shall be furnished to any attorney of record. N.C.G.S. § 150B-42(a).

IT IS SO ORDERED.

This the 29th day of September, 2004. ______Augustus B. Elkins II Administrative Law Judge