United States District Court, E.D. North Carolina, Western Division
LOUISE W. FLANAGAN, District Judge.
The matter comes before the court on plaintiff's motion to consolidate (DE 9). Also before the court is defendants' motion to dismiss (DE 14) pursuant to Federal Rules of Civil Procedure 12(b)(1), (2), (4), (5), and (6). Defendants did not respond to plaintiff's motion, but plaintiff responded to defendant's motion. In this posture, the issues raised are ripe for adjudication. For the following reasons, the court denies plaintiff's motion and grants defendants' motion.
STATEMENT OF THE CASE
On October 1, 2013, plaintiff, a pretrial detainee, filed this action pro se pursuant to 42 U.S.C. § 1983 against defendants Lieutenant Mike Cox ("Cox"), Lieutenant Chris Worth ("Worth"), and Sergeant Chuck Arnold ("Arnold"). Plaintiff alleged that defendants violated his rights pursuant to the Fourth Amendment to the United States Constitution in connection with the use of a global positioning system ("GPS") tracking device on his vehicle.
On April 28, 2014, defendants filed a motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1), (2), (4), (5), and (6). Specifically, defendants assert that the court lacks subject matter jurisdiction over plaintiff's claim because plaintiff failed to exhaust his administrative remedies prior to filing this action. Defendants also argue that plaintiff failed to obtain sufficient service of process on defendants and that plaintiff failed to state a claim upon which relief may be granted. The motion was fully briefed.
In the interim, plaintiff filed a motion to consolidate this case with another case plaintiff filed in this court, Edwards v. Winders, No. 5:13-CT-3184-FL (E.D. N.C. filed Aug. 5, 2013) (Edwards I). On August 15, 2014, the court in Edwards I denied plaintiff's motion to consolidate.
STATEMENT OF THE FACTS
The facts as alleged by plaintiff in his complaint are as follows:
On March 18, 2013[, ] I noticed I was being followed by a sheriff Explorer with sheriff decal on it at the uniform shop off Eleventh Street. I was follow to Daisy Street by a gray 4-runner [.] I had noticed a law enforcement presence for four of 5 days prior to getting stop March 18, 2013. I was pulled over March 15, 2013 by a deputy for so call bright lights by Deputy Sparks [.] On March 18, 2013[, ] around 3:30 pm I was with a friend and was box in by Wayne Co. Narcotic squad they went back to my friends house and charged me with manufacturing crack. Five days later, my sister Tracey Horne and nephew Quinte Horne checked under the car discovered a GPS tracking device tried to turn it into Sheriff department they wouldn't take it so I told them to turn it over to my attorney John Gomulka on Monday that Sunday 3/24/13 it was a lot of activity by narcotic unit on Nahunta Rd. Pikeville, N.C. Were my nephew had put it scared that if it was taking to the house the deputies would come. They couldn't locate it (GPS device). On Monday 3/25/13[, ] my nephew Quinte Horne took The GPS device to my attorney  at around lunch time. Attorney John Gomulka stated to me - when I inquired about a lawsuit and felony charges concerning GPS device on the Wayne C. Sheriff - that he came to work one morning saw officer Mix Cox and Chris Worth with other officers on his steps asking about The GPS monitoring device. I asked if he saw a warrant, Mr. John Gomulka stated I was told by Cox and Worth that they had a warrant can't see why they would lie. He told me to let it go that it was over. [L]ater, I was told The same thing again.
(Compl. pp. 4-5) (restating the facts as set forth by plaintiff without correcting grammatical errors).
As relief, plaintiff requests compensatory damages and declaratory relief. Plaintiff additionally requests that felony criminal charges be filed against each defendant. (Id. p. 4.)
A. Motion to Consolidate
Plaintiff filed his motion to consolidate in both this case and in Edwards I. On August 15, 2014, the court denied plaintiff's motion to consolidate in Edwards I. For the reasons stated in the August 5, 2014, order in Edwards ...