United States District Court, E.D. North Carolina, Western Division
DANIEL B. PARSONS, Plaintiff,
ASSISTANT WARDEN HERRING and SERGEANT ANDREWS, Defendants.
W. FLANAGAN United States District Judge
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).
Response to the Court's December 21, 2016 Order
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.
Motions to Appoint Counsel
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.
Motions to Amend
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.
Motion for a Jury Demand
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).
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”).
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