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Parsons v. Herring

United States District Court, E.D. North Carolina, Western Division

April 5, 2017

DANIEL B. PARSONS, Plaintiff,
v.
ASSISTANT WARDEN HERRING and SERGEANT ANDREWS, Defendants.

          ORDER

          LOUISE W. FLANAGAN United States District Judge

         On May 23, 2013, plaintiff, a state inmate, filed this civil rights action pro se pursuant to 42 U.S.C. § 1983 alleging that defendant Sergeant Andrews (“Andrews”) sexually assaulted him in violation of the Eighth Amendment to the United States Constitution. Plaintiff later amended his complaint to add Maury Correctional Institution Assistant Superintendent Herring (“Herring”) as a defendant pursuant to a theory of supervisor liability. On March 2, 2016, the court stayed this action pending the completion of the North Carolina State Bureau of Investigation's (“SBI”) investigation into plaintiff's allegations regarding the alleged sexual assault. The matter now comes before the court on defendants' response to the court's December 21, 2016, order directing defendants to inform the court whether the SBI's investigation now is complete. The matter also is before the court on plaintiff's motions to amend (DE 91, 92), for documentation (DE 91), for a jury trial (DE 91), to deny defendants' motion for summary judgment (DE 91), to appoint counsel (DE 91, 92, 97), to continue the instant lawsuit (DE 92), and to receive evidence (DE 92).

         A. Response to the Court's December 21, 2016 Order

         On December 21, 2016, the court directed defendants to inform it whether the SBI completed its investigation regarding plaintiff's allegations of sexual assault. Defendants responded to the court's order on December 22, 2016, and stated that the SBI investigation now is complete. Accordingly, the stay no longer is necessary, and the clerk of court is DIRECTED to lift the stay. Because the court lifted the stay, plaintiff's motion to continue the lawsuit is DENIED as MOOT.

         B. Motions to Appoint Counsel

         Plaintiff filed three motions to appoint counsel. The court DIRECTS North Carolina Prisoner Legal Services (“NCPLS”) to conduct an investigation of plaintiff's claims in this action. NCPLS further is DIRECTED to respond to this court within 21 days from the date of this order to indicate whether it will represent plaintiff in this action. The clerk of court is DIRECTED to send NCPLS a copy of this order, as well as the court's docket sheet. The clerk further is DIRECTED to provide NCPLS copies of any of the court's docket entries upon NCPLS's request. Additionally, defendants are DIRECTED to provide NCPLS with a copy of the SBI's investigation report for the incident at issue. Based upon the foregoing, plaintiff's motions to appoint counsel are DENIED without prejudice.

         C. Motions to Amend

         The court now turns to plaintiff's motions to amend. The court GRANTS plaintiff leave to amend his complaint. For clarity, the court DIRECTS NCPLS to file an amended complaint on plaintiff's behalf within 21 days of the date of this order.

         D. Motion for a Jury Demand

         Plaintiff requests permission to make a jury demand. In the federal courts, a party seeking a jury trial must serve the other parties with a written demand “no later than 14 days after the last pleading directed to the issue is served.” Fed.R.Civ.P. 38(b)(1). Neither plaintiff nor any defendant made a jury demand within the time to do so prescribed by Rule 38(b). When no party has made a jury demand, “the court may, on motion, order a jury trial on any issue for which a jury might have been demanded.” Fed.R.Civ.P. 39(b).

         “[T]he decision to grant a jury trial pursuant to Rule 39(b) is committed to the discretion of the trial court.” Malbon v. Pa. Millers Mut. Ins. Co., 636 F.2d 936, 940 (4th Cir. 1980).

The factors which courts have weighed when deciding whether to grant a jury trial under Rule 39(b) include (1) whether the issues are more appropriate for determination by a jury or a judge (i.e., factual versus legal, legal versus equitable, simple versus complex); (2) any prejudice that granting a jury trial would cause the opposing party; (3) the timing of the motion (early or late in the proceedings); [and] (4) any effect a jury trial would have on the court's docket and the orderly administration of justice.

Malbon, 636 F.2d at 940 n.11 (citations omitted); see Kelly v. Sentara, No. 2:11CV672, 2012 WL 4340849, at *2 (E.D. Va. Sept. 20, 2012) (analyzing five factors, including “(1) the justifiability of the delay; (2) the appropriateness of the issues for trial by jury; (3) the prejudice to the opposing party; (4) the timeliness of the motion; and (5) the effect of granting the motion on the orderly administration of justice”).

         Applying these factors, the court begins by considering whether the issues raised in this action are more appropriate for determination by a jury or a judge. There is no indication at this point in the proceedings that the issues are better suited for consideration by a judge rather than a jury. As for the timeliness of the motion, there is no unreasonable delay because the action has been stayed. Further, defendants did not oppose plaintiff's motion and there is no indication that granting the motion would prejudice defendants. Finally, there is no indication that a jury trial ...


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