United States District Court, W.D. North Carolina, Asheville Division
J. CONRAD, JR.UNITED STATES DISTRICT JUDGE.
MATTER comes before the Court on Plaintiff's
“Motion for Relief from Order and Motion for Court to
Withdraw the Summons and Complaint Directed to John Morgan,
F.N.P.” (Doc. No. 158); see (Doc. Nos. 156,
157). The motion will be granted.
Plaintiff Marion Lamont Sherrod filed the Complaint on
February 20, 2012, alleging claims related to deliberate
indifference to his medical needs, intentional racial
discrimination, and violation of his right to send and
receive mail. (Doc. No. 1). Following initial review by the
Court, the United States Marshals Service was ordered to
serve Defendants Larry Bass, FNU Edwards, Sid Harkleroad,
Margaret Johnson, Patricia McEntire, John Morgan, and Stephen
Shook. (Doc. No. 6).
Morgan filed a motion to dismiss on June 21, 2012, arguing
inter alia that the Court lacks jurisdiction due to
insufficient service of process and that Plaintiff failed to
state a facially sufficient claim for deliberate indifference
to a serious medical need. (Doc. No. 24). Plaintiff filed a
response opposing dismissal. (Doc. No. 30). The Court granted
Defendant Morgan's motion to dismiss on February 20,
2013, for failure to state a claim, and did not reach the
other arguments in favor of dismissal. (Doc. No. 58).
Defendant Larry Bass' motion to dismiss or,
alternatively, for judgment on the pleadings, (Doc. No. 98),
was also granted. (Doc. No. 107).
remaining Defendants - Harkleroad, Edwards, Shook, McEntire,
and Johnson - filed a motion for judgment on the pleadings.
(Doc. Nos. 121, 122). Plaintiff filed a motion for summary
judgment, (Doc. No. 123), as well as motions for leave to
file an amended complaint, (Doc. No. 124), and for judgment
as a matter of law, (Doc. No. 130). In an Order entered March
30, 2016, the Court granted Defendants' motion for
judgment on the pleadings and denied Plaintiff's motions
for summary judgment, leave to amend, and judgment as a
matter of law. (Doc. No. 132).
appealed the Court's judgment in favor of Defendants and
the Fourth Circuit reversed. Sherrod v. Harkleroad,
674 Fed.Appx. 265 (4th Cir. 2017). It identified
as Plaintiff's “primary claim” the allegation
that, “despite notice to Defendants that he suffered
from seizures, he was housed in an upstairs cell in a top
bunk and, as a result, he fell, seriously injuring himself;
he alleged this was evidence of an Eighth Amendment violation
and deliberate indifference to his serious medical
needs.” (Id. at 266). It disagreed with the
Court's conclusion that the complaint failed because
Plaintiff “simply assumed in his complaint, without
sufficient factual support, that all of the Defendants had
intimate knowledge about his seizure disorder.”
(Id.). The Fourth Circuit explained:
In his properly executed declaration, Sherrod alleged that
medical provider John Morgan and manager Patricia McEntire,
both named Defendants, had knowledge of his seizure disorder
but failed to accommodate his disability, leading to his
serious injuries due to a fall. We make no finding as to
whether Sherrod ultimately may prove an Eighth Amendment
violation against the Defendants, see Estelle v.
Gamble, 429 U.S. 97, 105-106 (1976); Iko v.
Shreve, 535 F.3d 225, 238-39 (4th Cir. 2008), but find
that he alleged enough to survive the Defendants' motion
for judgment on the pleadings.
(Id. at 266-67). The Fourth Circuit accordingly
vacated the judgment in Defendants' favor and remanded
for proceedings consistent with its opinion. (Id.).
remand, this Court issued an Order on July 20, 2017, that
Defendant Morgan be reinstated as a defendant and served with
process in accordance with the Fourth Circuit's mandate.
(Doc. No. 156). A summons was then issued electronically to
the United States Marshals Service. (Doc. No. 157). However,
unbeknownst to the Court, Defendant Morgan had received
clarification from the Fourth District that
“notwithstanding the mention of the claim against
Morgan in our opinion, the vacating of the district
court's March 30, 2016, order does not affect the
dismissal of Morgan as a party to this action.” (Doc.
No. 159-2 at 2). On July 25, 2017, Defendant Morgan filed a
copy of the Fourth Circuit's clarification order and
moved the Court to correct its July 20, 2017, Order, (Doc.
No. 156), and withdraw the summons, (Doc. No. 157).
light of the Fourth Circuit's order granting
clarification, the Court withdraws the portions of the July
20, 2017, Order directing the United States Marshals Service
to serve Defendant Morgan, and instructing the Clerk to
reinstate the case against Defendant Morgan. See
Fed. R. Civ. P. 60(a). The remainder of the July 20, 2017,
Order remains in effect.
IS, THEREFORE, ORDERED:
Plaintiff's Motion for Relief from the Court's July
20, 2017, Order and Motion for the Court to Withdraw the
Summons and Complaint Directed to John Morgan F.N.P., (Doc.
No. 158), is GRANTED.
The portions of the Court's July 20, 2017, Order, (Doc.
No. 156), reinstating John Morgan as a defendant in this case
and directing the United States Marshals Service to
personally serve him, are withdrawn.
The summons and complaint directed to John Morgan, (Doc. ...