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. )
)
STEVEN HENDRICKS, et al., ) ORDER
)
Defendants. )
_______________________________ )
THIS MATTER is before the Court on Defendants J.D. Lambert,
Katherine Lewis, and Jeff May’s Second Objection to Depositions Upon
Written Questions and Motion for Protective Order [Doc. 186], and on
Defendants’ Joint Motion to Strike Plaintiff’s Amended Complaint [Doc. 189].
The pro se incarcerated Plaintiff filed this civil rights action pursuant to
42 U.S.C. § 1983. The Complaint passed initial review on several § 1983
claims and the Court exercised supplemental jurisdiction over North Carolina
law claims. [Doc. 13]. Discovery closes on December 13, 2023, and
dispositive motions are due by January 17, 2024. [Doc. 190].
First, Defendants Lambert, Lewis, and May seek a Protective Order
due to Plaintiff’s ongoing attempts to serve depositions on written questions
on Defendants May and Lambert and a non-party, Christopher Stockton.
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[Doc. 186; see Doc. 186-2 (Plaintiff’s Notice of Taking Depositions Upon
Written Questions); Doc. 186-3 (Written Questions addressed to Defendant
May); Doc. 186-4 (Written Questions addressed to Defendant Lambert);
Doc. 186-5 (Written Questions addressed to Christopher Stockton)].
The Plaintiff previously served Depositions on Written Questions on
parties and non-parties without demonstrating his ability to pay the
associated costs or complying with the relevant discovery rules. [See Doc.
163]. On November 8, 2023, the Court struck the Depositions on Written
Questions and entered 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.” [Doc. 190 at 5]. The Plaintiff has now again
attempted to depose parties and non-parties by written questions.1 The
Plaintiff argues that he should be allowed to take the depositions before a
prison notary regardless of his ability to pay for a court reporter. [Doc. 199].
The instant Depositions Upon Written Questions will be stricken for the
same reasons discussed in the Court’s November 8, 2023 Order, and the
1 The Court recognizes that the November 8 Order was entered after the Plaintiff had
served the Deposition Notices that are presently at issue.
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Plaintiff is again ordered to comply with the Protective Order set out in that
Order. [Id.].
Next, the Defendants ask the Court to strike Plaintiff’s “Amended
Complaint” [Doc. 181] on the grounds that the Plaintiff filed it after the June
10, 2022 amendment deadline; that he failed to demonstrate good cause;
that he failed to obtain written consent from Defendants or leave from the
Court; that the statute of limitations bars the assertion of claims against new
defendants; and that the existing Defendants would be prejudiced if new
claims were added against them. [Doc. 189].
On November 8, 2023, the Court denied Plaintiff’s Motion to Amend
and Join Parties. [Doc. 190]. The instant “Amended Complaint” was,
therefore, not filed in compliance with Rule 15. Nor has the Plaintiff
demonstrated good cause as discussed in the Court’s November 8 Order
[id.], as well as for the additional reasons set forth in the Defendants’ Motion
[Doc. 181]. The Defendants’ Motion is, therefore, granted and the “Amended
Complaint” will be stricken.
IT IS, THEREFORE, ORDERED that:
1. Defendants J.D. Lambert, Katherine Lewis, and Jeff May’s
Second Objection to Depositions Upon Written Questions and
Motion for Protective Order [Doc. 186] is GRANTED, and the
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Plaintiff’s Notice and Depositions Upon Written Question [Doc.
186-2, 186-3, 186-4, and 186-5] are STRICKEN.
2. The Plaintiff is ORDERED to comply with the Court’s November
8, 2023 Order [Doc. 190]. The failure to do so may result in the
imposition of sanctions.
3. The Defendants’ Joint Motion to Strike Plaintiff’s Amended
Complaint [Doc. 189] is GRANTED, and the “Amended
Complaint” [Doc. 181] is STRICKEN.
IT IS SO ORDERED.
Signed: November 28, 2023
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