United States District Court, E.D. North Carolina, Western Division
LOUISE W. FLANAGAN, District Judge.
Plaintiff, a state inmate, filed this civil rights action pursuant to 42 U.S.C. § 1983. The matter is before the court upon plaintiff's unopposed motion for entry of default (DE 38), motion for a temporary restraining order (DE 39), motion to amend (DE 39), motion to appoint counsel (DE 41), motion to proceed to trial (DE 52), and motion to compel (DE 54). Also before the court is the motion for a protective order (DE 46) and motion for summary judgment (DE 35) filed by defendants Steven G. Averett ("Averett"), Jeffrey W. Drowns ("Drowns"), Curtis Jones ("Jones"), Jacques Kentrell ("Kentrell"), Dominic Hose Ettson ("Ettson"),  and Ann Robinson ("Robinson"), to which plaintiff responded. In this posture, the issues raised are ripe for ruling.
A. Motion to Amend
Plaintiff requires leave of court to amend his complaint. See Fed.R.Civ.P. 15(a)(2). Leave to amend must be freely given when justice so requires, and will 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 be futile. See Laber v. Harvey , 438 F.3d 404, 426 (4th Cir. 2006) (en banc).
Plaintiff requests leave to amend his complaint to include Polk Correctional Institution Assistant Superintendent Irvin Ryan ("Ryan") as a defendant in this action. Plaintiff seeks to hold Ryan liable "for his role as the supervisor of the staff whom committed the assaults." (Pl's Mot. to Am. p. 1.) Plaintiff's allegations against Ryan, however, fail to state a claim because they are based upon a theory of respondeat superior, as opposed to supervisory liability, in that plaintiff has failed to allege facts to establish any deliberate indifference or tacit authorization on behalf of Ryan. See Monell v. Department of Social Services of City of New York , 436 U.S. 658, 694 n. 58 (1978) (holding that respondeat superior is unavailable under § 1983); Shaw v. Stroud , 13 F.3d 791, 799 (4th Cir. 1994) (setting forth requirements to properly assert a supervisor liability claim under § 1983). Because plaintiff fails to state a claim against Ryan, plaintiff's motion to amend is DENIED as futile.
B. Motion for Default
Plaintiff requests that the court make an entry of default pursuant to Federal Rule of Civil Procedure 55(a) against defendants Robinson, Holloway, Poteat, and Drowns. Rule 55(a) provides that "[w]hen a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must enter a party's default." Fed.R.Civ.P. 55(a).
Beginning with defendants Drowns and Robinson, summons was returned executed as to these defendants on December 21, 2013, and their respective responses to plaintiff's complaint were due by February 7, 2014. Drowns and Robinson filed a motion for summary judgment on February 7, 2014. Accordingly, plaintiff has not demonstrated that Drowns or Robinson failed to "plead or otherwise defend" in this action. Thus, plaintiff's motion for entry of default as to Drowns and Robinson is DENIED.
As for defendants Holloway and Poteat, these defendants have not been served, and the court has made every effort to aid plaintiff in accomplishing service on these defendants. On November 13, 2013, the court ordered the United States Marshal to make service on behalf of plaintiff. After, plaintiff's initial attempt at service was unsuccessful, the court ordered the North Carolina Attorney General to provide the court a current address for Holloway and Poteat. The North Carolina Attorney General complied and service was again attempted and returned without perfection of service against Holloway or Poteat. The court has no other method of ascertaining an address for Holloway or Poteat. Because plaintiff has been unable to perfect service on Holloway or Poteat within the one hundred twenty (120) day time period required by Rule 4(m) of the Federal Rules of Civil Procedure, plaintiff's action against Holloway and Poteat is dismissed without prejudice. See Price v. Sanders, 339 F.Appx. 339 (4th Cir. 2009). Additionally, plaintiff's motion for entry of default against these defendants' is DENIED.
C. Motion for Temporary Restraining Order
Plaintiff requests a temporary restraining order "to prevent any retaliation from" the filing of his motion to amend his complaint to include Ryan as a defendant in this action. (Pl's Mot. to Am. p. 2.) Plaintiff also seeks a court order directing Ryan to "to prevent any form of retaliation by any of the  named defendants." (Id.)
Temporary restraining orders are governed by Rule 65 of the Federal Rules of Civil Procedure, which provides that a temporary restraining order shall not issue in the absence of "specific facts... [which] clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition." Fed.R.Civ.P. 65(b)(1)(A). The United States Supreme Court has stated that the movant must establish the following to obtain a temporary restraining order or a preliminary injunction: (1) that he is likely to succeed on the merits; (2) that he is likely to suffer irreparable harm in the absence of preliminary relief; (3) that the balance of equities tips in his favor; and (4) that an injunction is in the public interest. Winter v. Natural Resources Defense Council, Inc. , 555 U.S. 7, 20 (2008).
Plaintiff failed to demonstrate that he likely is to succeed on the merits, and has not alleged facts necessary to demonstrate that he likely would suffer irreparable harm if his motion is not granted. Rather, plaintiff's motion for a temporary restraining order is based upon speculative future harm. Further, the public interest is best served if courts do not get involved with the daily operations of a prison, especially prior to the finding of a constitutional violation. See Florence v. Board of Chosen Freeholders of County of Burlington, ___ U.S. ___ , 132 S.Ct. 1510, 1517 (2012). Accordingly, plaintiff has not demonstrated that his request for a temporary restraining order ...