Pickens v. Hendricks et al

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:21-cv-00030-MR
BRANDON PICKENS, )
)
Plaintiff, )
)
vs. ) O R D E R
)
STEVEN HENDRICKS, et al., )
)
Defendants. )
_______________________________ )
THIS MATTER is before the Court on:
1. The Plaintiff’s “Motion for Assistance from this Court” [Doc. 144];
2. The Plaintiff’s “Motion to Amend Complaint and Motion to Join
Parties” [Doc. 145];
3. The Plaintiff’s Motion for Appointment of Counsel [Doc. 148];
4. Defendants Lambert, May, and Lewis’s Motion for Leave and
Extension of Time to Conduct the Plaintiff’s Deposition [Doc.
159];
5. The Plaintiff’s Motion to Extend the Discovery Deadline [Docs.
168];
6. The Plaintiff’s Motion in Limine [Doc. 166];
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7. The Plaintiff’s Motion for an Order Compelling Discovery [Doc.
167];
8. Defendants Lambert, Lewis, and May’s Motion for Extension of
Time to File Dispositive Motions [Doc. 175]; and
9. The Plaintiff’s Letters and a “Request” that were docketed as
Motions [Docs. 149, 151,1 152, 162].
I. BACKGROUND
The pro se incarcerated Plaintiff filed this civil rights action pursuant to
42 U.S.C. § 1983, addressing incidents that allegedly occurred during a
January 20, 2018 traffic stop involving the Plaintiff and his passenger,
Marcus Hyatt.2 [See Doc. 1]. The Complaint passed initial review against
Buncombe County Sheriff’s Office (BCSO) deputies J.D. Lambert, Jeff May,
and Katherine Lewis and Buncombe County Sheriff Quentin Miller; and the
Court exercised supplemental jurisdiction over North Carolina claims against
1 Titled “Request to Put off Defendant’s Deposition and Extension of Time to Conduct
Depositions.”
2 Hyatt and his girlfriend, Ashely Barrett, who was detained in a separate vehicle stop,
also filed an action in this Court, Hyatt v. Miller, Case No. 1:19-cv-00250-MR-WCM.
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those Defendants as well as against the Sheriff’s surety, Western Surety
Company.3 [See Doc. 13].
On April 25, 2022, the Court entered a Pretrial Order and Case
Management Plan setting the following deadlines: to amend and join parties
by June 10, 2022; to complete discovery by August 19, 2022; and to file
dispositive motions by September 19, 2022. [Doc. 35]. On July 11, 2022,
the Court granted motions to relate the instant case to Hyatt v. Miller, Case
No. 1:19-cv-00250-MR-WCM and to stay this action pending the outcome of
Hyatt. [Docs. 39, 48, 50]. The Court lifted the stay on August 14, 2023, and
it amended the Pretrial Order and Case Management Plan requiring the
parties to complete discovery no later than September 15, 2023, and to file
all motions except for motions in limine and motions to continue no later than
October 16, 2023. [Doc. 143 at 22].
Several new motions are now pending. They will be addressed in turn.
II. DISCUSSION
A. Letters
3 The Complaint also passed initial review against Asheville Police Department Officer
Steven Hendricks, but his Motion to Dismiss for Failure to State a Claim Upon Which
Relief May be Granted was granted on April 25, 2022, and the action was dismissed with
prejudice as to him. [Docs. 25, 34].
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As a preliminary matter, the Plaintiff has filed several Letters
requesting various relief that were docketed as Motions. [See Docs. 149,
151, 152, 162]. The Plaintiff was repeatedly informed that “the Court will not
respond to any further letters or other miscellaneous filings in this case; only
motions will be ruled on by the Court.” [Doc. 82 at 4-5; see also Doc. 3 at ¶
5 (Order of Instructions)]. The Clerk will, therefore, be instructed to terminate
docket entries 149,4 151, 152, and 162,5 and to retitle these filings as Letters
[Docs. 149, 152, 162] and a Request [Doc. 151].
One of the Letters, although improperly filed, requires further
discussion. The Plaintiff has attached to a Letter several “Deposition[s] Upon
Written Questions” that are directed to nonparties Steven Hendricks [Doc.
149-1], Marcus Hyatt [Doc. 149-2]; Darrell Saucier [Doc. 149-3]; and
Christopher Stockton [Doc. 149-4]. The Plaintiff also served Defendants
Lambert and May with “Deposition[s] Upon Written Questions.” [Docs. 163-
1, 163-2]. The Defendants ask the Court to strike the Depositions and to
enter a protective order prohibiting the Plaintiff from attempting to conduct
any more written depositions until he demonstrates to the Court his ability to
4 Had Docket Entry 149 been properly filed, it would be denied for the reasons articulated
in the Defendants’ Responses [Docs. 157, 163].
5 Had Docket Entry 162 been properly filed, it would be denied for the reasons previously
discussed. [See Doc. 82 at 3-4].
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comply with the requirements of Fed. R. Civ. P. 31 and to pay for all the
written depositions and associated costs. [Docs. 157, 163]. In response,
the Plaintiff admits that “there is no way [he] can advance any payment for
any cost related to discovery” at this time, and asks to be allowed to proceed
with the depositions because, inter alia, he is indigent, incarcerated, and
unrepresented. [See Doc. 165 at 2].
The Plaintiff has failed to comply with the discovery rules, and he
admits that he cannot pay the costs associated with the Depositions. His
incarceration, indigence, and pro se status do not excuse him from these
requirements. See generally United States v. MacCollom, 426 U.S. 317, 321
(1976) (“The established rule is that the expenditure of public funds is proper
only when authorized by Congress....”); Iannucci v. CVS Rx Servs., Inc., No.
1:15-cv-223, 2016 WL 1734263 (W.D.N.C. March 29, 2016) (“The fact that
a plaintiff chooses to proceed without counsel in a civil proceeding is not an
excuse for the failure to comply with the Court’s procedural rules.”); Fed. R.
Civ. P. 31. The Court therefore will strike the depositions upon written
questions and will enter a Protective Order requiring the Plaintiff to
demonstrate his ability to pay for the costs and fees associated with written
depositions, and obtain leave from the Court, before serving any depositions
upon written questions in future.
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B. Motions for Counsel and Assistance
The Plaintiff seeks the appointment of counsel and “assistance from
this Court” due to his incarceration, indigence, and the conditions of his
confinement. [Docs. 144, 148]. The Plaintiff’s request for the appointment
of counsel was previously denied, and the instant request fails for the same
reasons. [See Doc. 143]. The Plaintiff’s vague request for assistance with
his case from the Court is also denied. See generally Pliler v. Ford, 542 U.S.
225, 231 (2004) (“District judges have no obligation to act as counsel or
paralegal to pro se litigants”).
C. Motion to Amend and Join Parties
The Plaintiff seeks leave to amend his Complaint to add claims and
defendants in the future, after discovery is complete. [Doc. 145]. The
Defendants oppose the Motion. [Doc. 156; see also Doc. 161 (Plaintiff’s
Reply)].
Under the Federal Rules of Civil Procedure, a plaintiff may amend the
complaint once as a matter of course within 21 days after serving the
complaint, or within “21 days after service of a responsive pleading or 21
days after service of a motion under Rule 12(b), (e), or (f), whichever is
earlier.” Fed. R. Civ. P. 15(a)(1). A plaintiff may subsequently amend with
permission from the court which “shall be freely granted when justice so
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requires.” Fed. R. Civ. P. 15(a)(2). The Fourth Circuit “ha[s] interpreted Rule
15(a) to provide that ‘leave to amend a pleading should be denied only when
the amendment would be prejudicial to the opposing party, there has been
bad faith on the part of the moving party, or the amendment would have been
futile.’” Laber v. Harvey, 438 F.3d 404, 426 (4th Cir. 2006) (en banc) (quoting
Johnson v. Oroweat Foods Co., 785 F.2d 503, 509 (4th Cir. 1986)). Leave
to amend is futile when the amended complaint would not survive a motion
to dismiss. Save Our Sound OBX, Inc. v. N.C. DOT, 914 F.3d 213, 228 (4th
Cir. 2019).
Here, the Plaintiff seeks leave to amend so that he may add
unspecified claims and defendants, but he has not filed a proposed amended
complaint. He has failed to meet the requirements for seeking leave to
amend. See, e.g., Employees’ Ret. Sys. of the City of Baton Rouge & Par.
of E. Baton Rouge v. MacroGenics, Inc., 61 F.4th 369, 394 (4th Cir. 2023)
(finding no abuse of discretion in district court’s denial of request to amend
where plaintiffs did not file a motion to amend or present the district court
with a proposed amended complaint did not meet the requirements of Rules
7(b) and 15(a)); Willner v. Dimon, 849 F.3d 93, 114 (4th Cir. 2017) (finding
no abuse of discretion in district court’s denial of leave to amend where
Plaintiff made no formal move and failed to file any indication of the specific
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amendments sought); Cozzarelli v. Inspire Pharm., Inc., 549 F.3d 618, 630-
31 (4th Cir. 2008) (finding no abuse of discretion in declining to grant a
request to amend where it was not filed in a proper motion and plaintiffs did
not present the district court with a proposed amended complaint). The
Motion is, therefore, denied.
To the extent that the Plaintiff seeks an extension of the amendment
deadline in the Pretrial Order, this too is denied. A scheduling order may be
modified “only for good cause and with the judge’s consent.” Fed. R. Civ. P.
16(b)(4). “Good cause” means that “scheduling deadlines cannot be met
despite a party’s diligent efforts.” Dilmar Oil Co. v. Federated Mut. Ins. Co.,
986 F.Supp. 959, 980 (D.S.C. 1997) (citations omitted).
The Plaintiff has failed to carry this burden. As a preliminary matter,
the Plaintiff’s argument that the amendment deadline never expired because
he timely moved to extend it, is not well taken. The relevant docket entries
[Docs. 38, 46] are Letters, and not Motions that properly placed the matter
before the Court for consideration. By the time this case was stayed on July
11, 2022, the June 10, 2022 deadline to amend and join parties had already
expired, and it was not revived by any subsequent events. [Doc. 35 (Pretrial
Order setting scheduling deadlines); Doc. 50 (Order staying the case); see,
e.g., Doc. 143 (Order lifting the stay and setting only new discovery and
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dispositive motions deadlines)]. Further, the Plaintiff has not adequately
demonstrated due diligence. He fails to explain why he did not move to
extend the amendment deadline before it expired; and he does not
adequately explain why he was unable to identify the unspecified claims and
defendants sooner with regard to this 2018 incident. His speculative
assertion that additional discovery may reveal additional claims and
defendants is insufficient. See, e.g., Johnson v. Hammett, 2019 WL
7185559, at *13 (D. Md. Dec. 23, 2019) (dismissing speculative claim that
an officer may have been able to more quickly discover that the plaintiff was
not a fugitive and should be released, where the plaintiff argued that
“discovery will reveal whether it is ‘plausible’ that [the officer] acted with a
kind [of] deliberate indifference;” “a law suit is not a fishing expedition;
plausibility must be established by the [allegations]”). The Plaintiff’s other
arguments, including his contention that an attorney who never appeared in
this case advised him that he would have the opportunity to amend his
Complaint at some unspecified time in the future, are frivolous and require
no individual discussion.
D. Motions Relating to Discovery
1. Defendants’ Motion to Depose Plaintiff
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Defendants Lambert, Lewis, and May seek leave to depose the
incarcerated Plaintiff, and they request an extension of the discovery and
dispositive motions deadlines to accommodate the same. [Docs. 159, 175;
see also Doc. 168 (Plaintiff’s Motion to extend the discovery deadline)].
The Defendants’ request to depose the Plaintiff is granted pursuant to
Rule 30(a)(2)(B) of the Federal Rules of Civil Procedure. Defense counsel
may depose Plaintiff at the institution where he is confined6 in a room to be
designated by the administrator of the institution at a date to be selected by
the administrator and defense counsel. A guard shall be present during the
deposition. The parties’ requests to extend the discovery deadline, and
Defendants Lambert, Lewis, and May’s request to extend the dispositive
motions deadline, are also granted.
The Court notes that the Plaintiff has indicated that he may refuse to
cooperate with the deposition unless he is able to dictate the conditions
under which the deposition occurs. [See, e.g., Doc. 149 (Letter requesting
transfer to a medium custody facility and stating “I refuse to be in tight ass
full body restraints for the duration of time the defendants depose me. That’s
a no no!!!”)] (errors uncorrected). The Plaintiff is cautioned that he is
obligated to comply with the Defendants’ discovery requests, including the
6 The Plaintiff is presently incarcerated at the Alexander Correctional Institution.
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deposition. See generally Fed. R. Civ. P. 37. His failure to appear and/or
cooperate at the deposition may result in the imposition of sanctions,
including the dismissal of all or part of this case. Id.; see Mutual Fed. Sav.
And Loan Ass’n v. Richards & Assoc., Inc., 872 F.2d 88, 92 (4th Cir. 1989);
Zornes v. Specialty Indus., Inc., 166 F.3d 1212 (4th Cir. 1998).
2. Plaintiff’s Motion to Compel
The Plaintiff moves the Court to compel Defendants Lewis, Lambert,
May, and Miller to fully answer the interrogatories under oath; produce for
inspection and copying an extensive list of documents, including the entire
record from the Hyatt case, various prosecutorial and grand jury records, and
law enforcement investigatory and policy records; and to produce body
camera footage from the incident. [Doc. 167].
The Plaintiff does not certify in the Motion that he attempted in good
faith to resolve the discovery dispute before engaging the Court’s assistance.
The lack of certification alone warrants the denial of the Motion. See Fed.
R. Civ. P. 37(a)(1); see also LCvR 7.1(b) (a non-dispositive civil motion “must
show that counsel have conferred and attempted in good faith to resolve
areas of disagreement or describe the timely attempts of the movant to
confer with opposing counsel;” motions that fail to do so “may be summarily
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denied.”). Even if the Motion were properly filed, however, it would be denied
for the reasons set forth in the Defendants’ Responses.7
E. Motion in Limine
The Plaintiff has filed a Motion in Limine in which he asks the Court to
bar the Defendants from presenting any evidence that is “supplemental to
evidence concerning issues that were fully litigated by the Defendants in
Hyatt,” pursuant to the doctrine of offensive collateral estoppel and Rule 403.
[Doc. 166 at 3].
Discovery is ongoing and dispositive motions have not yet been
resolved. Accordingly, the Plaintiff’s Motion in Limine is denied as
premature. See generally E.I. DuPont De Nemours & Co. v. Kolon Indus.,
Inc., 564 F. App’x 710, 715 (4th Cir. 2014) (noting that “a court is often wise
to await the unfolding of evidence before the jury before undertaking to make
definitive rulings on the likely probative value of disputed evidence”).
III. CONCLUSION
IT IS, THEREFORE, ORDERED that:
7 The Court trusts that counsel for Defendants Lambert, Lewis, and May will swiftly correct
the signature/verification defect that the Plaintiff has identified, and which the Defendants
acknowledge. [See Doc. 173]. Should counsel fail to do so, the Plaintiff may seek relief
from the Court in a properly-filed Motion.
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1. The Plaintiff’s “Motion for Assistance from this Court” [Doc. 144]
is DENIED.
2. The Plaintiff’s “Motion to Amend Complaint and Motion to Join
Parties” [Doc. 145] is DENIED.
3. The Plaintiff’s Motion for Appointment of Counsel [Doc. 148] is
DENIED.
4. Defendants Lambert, May, and Lewis’ Motion for Leave and
Extension of Time to Conduct the Plaintiff’s Deposition [Doc. 159]
is GRANTED, and they may depose the Plaintiff by December
13, 2023 in accordance with this Order.
5. The Plaintiff is cautioned that his failure to appear and
cooperate at the deposition may result in the imposition of
sanctions including dismissal of all or part of this case.
6. Defendants Lambert, Lewis, and May’s Motion for Extension of
Time to File Dispositive Motions [Doc. 175] and the Plaintiff’s
Motion to Extend the Discovery Deadline [Docs. 168] are
GRANTED. The parties shall have until December 13, 2023 to
complete discovery, and until January 17, 2024 to file dispositive
motions.
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7. Defendants Lambert, Lewis, and May’s Motion for Protective
Order [Doc. 163] is GRANTED, and the Plaintiff’s Depositions
Upon Written Questions [Docs. 149-1, 149-2, 149-3, 149-4, 163-
1, 163-2] are STRICKEN.
8. The Plaintiff shall be required to obtain leave from this Court
before serving any future depositions upon written questions in
accordance with Fed. R. Civ. P. 31. In any request for such
leave, the Plaintiff must demonstrate his ability to pay for the
court officer, any witness fees, transcription costs, and any other
associated costs or fees.
9. The Plaintiff’s Motion for an Order Compelling Discovery [Doc.
167] is DENIED.
10. The Plaintiff’s Motion in Limine [Doc. 166] is DENIED as
premature.
11. The Clerk is respectfully instructed to TERMINATE Docket
Entries 149, 151, 152, and 162, and to rename them as “Letters”
[Doc. 149, 152, 162] and a “Request” [Doc. 151].
IT IS SO ORDERED. Signed: November 7, 2023
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