United States District Court, E.D. North Carolina, Western Division
LOUISE W. FLANAGAN, District Judge.
This matter comes before the court on defendants' motions to dismiss (DE 19, 26, 31, 35). Pursuant to 28 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure 72(b), United States Magistrate Judge Kimberly A. Swank entered memoranda and recommendations ("M&Rs") wherein it is recommended that defendants' motions be granted (DE 58, 59). Plaintiff filed a general objection to the M&R. Also pending before the court are plaintiff's motion to compel production of documents (DE 61), motion for preliminary injunction (DE 62), motion to proceed to scheduling order (DE 63), and a document styled as an objection to the magistrate judge decision on motion to recover costs (DE 56). In this posture, the issues raised are ripe for ruling. For the reasons that follow, the court adopts the recommendations in the M&Rs, dismisses plaintiff's claims and denies the remaining motions.
The court incorporates herein in its entirety the factual background from the M&R, where it accurately and cogently summarizes plaintiff's claims. This is a civil rights action brought by plaintiff following his arrest on state charges of accessory after the fact to armed robbery. Plaintiff alleges that he was confined in the Vance County Detention Center for a period of four or five days in September 2012, during which he was not provided with "life sustaining medications" necessary to treat his hypertension and diabetes. He further asserts that he was required to sleep on a mattress on the floor without adequate covering in an overcrowded medical dorm and to wear "mixed matched sandals and raggedy prison uniforms." (Am. Compl. ¶¶ 22-23).
At the time of plaintiff's confinement, Defendant Peter White ("White") was the Vance County Sheriff, Defendant Thomas S. Hester, Jr. ("Hester") was the Chairman of the Vance County Board of Commissioners, and Defendant Theresa Jomo ("Jomo") was a nurse at the Vance County Detention Center. Plaintiff asserts that the medical facilities at the Vance County Detention Center are inadequate and that White, Hester and Jomo have refused, due to budgetary constraints, to take appropriate action to remedy the deficiencies. Plaintiff further maintains that Jomo negligently disregarded plaintiff's serious medical needs by failing to provide him with medication after having been advised of his need for such.
Plaintiff alleges that he has Type 1 diabetes, hypertension and lower back pain and that he was deprived of appropriate medical treatment during his incarceration at the Vance County Detention Center. Specifically, plaintiff asserts that his medications were delivered to the jail the day after he was confined, but they were not administered to him until the following day because there was no nurse on duty after 7:00 p.m. Plaintiff states that he received some of his medications on September 26, 2012, but he was not given any insulin. Plaintiff was seen by a physician and optometrist, and "was able to get [his] condition under control." (Compl. ¶ 13). Plaintiff maintains that had he remained in the jail without adequate treatment he could have suffered acute complications, "including excessive urination, constant thirst and hunger, weakness, confusion, dizziness, and seizures, as well as severe long-term problems, including blindness, amputation of feet and legs, renal failure, and nerve damage and death due to nontreatment of hypertension and type 1 diabetes." (Compl. ¶ 13; Am. Compl. ¶ 13).
Defendant Currin ("Currin") is the District Attorney for the Ninth Prosecutorial District, which includes Vance County; and Defendant Capps ("Capps") is an Assistant District Attorney serving Vance County. Although the allegations contained in plaintiff's complaint and amended complaint are not entirely clear, it appears as though plaintiff is alleging that Currin and Capps violated his Sixth and Fourteenth Amendment rights as a consequence of their actions during the criminal proceedings against him. Plaintiff asserts, for example, that Capps improperly calendared for Superior Court a perjury charge lodged against plaintiff and that she misrepresented to the presiding judge that plaintiff had waived his right to counsel as to the perjury charge. Plaintiff alleges that Currin "authorized or permitted" Capps' actions and was present and seated beside Capps when she mispresented that laintiff had waived his right to counsel on the perjury charge. (Compl. ¶¶ 21-22).
In July 2013, Plaintiff filed a complaint of misconduct against Currin, requesting his removal from office pursuant to N.C. Gen. Stat. § 7A-66. The matter was assigned to Defendant Hight, the Senior Resident Superior Court Judge for the Ninth Judicial District. Plaintiff asserts that Judge Hight summarily dismissed the complaint in furtherance of a conspiracy with Currin and Capps to deprive Plaintiff of his civil rights. (Compl. ¶¶ 26-27).
Plaintiff filed this action on August 1, 2013, and he amended his complaint on August 30, 2013. Plaintiff seeks monetary damages and declaratory and injunctive relief pursuant to 42 U.S.C. §§ 1981, 1983, 1985, and 1986, 18 U.S.C. §§ 241 and 242, Section 504 of the Rehabilitation Act and Title II of the Americans with Disabilities Act, as well as attorney's fees pursuant to 42 U.S.C. § 1988.
Before the court are a motion to dismiss Plaintiff's claims against White and Hester for insufficiency of service of process and failure to state a claim, as well as a motion to dismiss the claims against Jomo for failure to state a claim upon which relief can be granted. Also before the court are motions to dismiss by Currin, Capps and Judge Hight for insufficiency of service of process and lack of personal jurisdiction, lack of subject matter jurisdiction, and failure to state a claim upon which relief can be granted. After plaintiff amended his complaint on August 30, 2013, these movants thereafter filed a motion to dismiss Plaintiff's claims against them, as amended.
Also pending before the court are plaintiff's motion to compel production of documents, motion for preliminary injunction, motion to proceed to scheduling order, and a document styled as appeal of magistrate judge decision on motion to recover costs.
A. Standard of Review
The district court reviews de novo those portions of a magistrate judge's M&R to which specific objections are filed. 28 U.S.C. § 636(b). The court does not perform a de novo review where a party makes only "general and conclusory objections that do not direct the court to a specific error in the magistrate's proposed findings and recommendations." Orpiano v. Johnson , 687 F.2d 44, 47 (4th Cir. 1982). Absent a specific and timely filed objection, the court reviews only for "clear error, " and need not give any explanation for adopting the M&R. Diamond v. Colonial Life & Acc. Ins. Co. , 416 F.3d 310, 315 (4th Cir. 2005); Camby v. Davis , 718 F.2d 198, 200 (4th Cir.1983). Upon ...