United States District Court, E.D. North Carolina, Southern Division
B. Jones, Jr. United States Magistrate Judge.
matter is before the court on Plaintiffs following motions:
(1) Motion for Amendment to Supplemental Complaint and
Memorandum of Facts and Law [DE-133], (2) Motion to Amend and
Supplement Jurisdiction of Authority [DE-139], (3) Motion to
Appoint Counsel [DE-137] and (4) Motion to Amend Appointment
of Counsel [DE-144].
alleges the following facts in his complaint. On March 30,
2014, Plaintiff was sitting in his vehicle in South Carolina
when he was surrounded and subsequently pursued by South
Carolina authorities in a vehicle chase. After he crossed
back into North Carolina he was pursued by approximately
forty law enforcement vehicles, including members of the
Columbus County Sheriffs Office and North Carolina State
Highway Patrol. Plaintiff ran out of gas and exited the
vehicle with his hands raised holding a weapon clearly
visible to the officers. Plaintiff was in the process of
putting his weapon down when he was shot by law enforcement
officers and was. hit by approximately forty-three rounds.
Plaintiff sustained serious injuries. Plaintiff filed his
complaint under 42 U.S.C. §§ 1983, 1985, 1988
alleging that the officer defendants violated plaintiffs
civil rights by using excessive force and discriminating
against him based on his race. Compl. [DE-1]. The claims
raised in this action are for supervisory liability, pattern
or practice of disregard of constitutional rights, and
failure to properly train/deliberate indifference against
Sheriff Hatcher, excessive force, equal protection violation,
due process violations, cruel and unusual punishment and
racial profiling. [DE-1, -129]. Plaintiff further cites to
claims under the North Carolina Constitution and North
Carolina General Statutes in his complaint. Id.
order filed June 26, 2017, the court consolidated the instant
case with a subsequent complaint Plaintiff had filed in state
court that was removed to this court. [DE-129]. Each of.
Plaintiffs complaints makes similar claims arising out of the
March 30, 2014 incident with law enforcement. In the second
case, Plaintiff alleges state law claims for negligence,
gross negligence,, intentional torts, excessive force,
intentional infliction of emotional distress,
unconstitutional policy or customs, failure to properly
screen, train, and supervise deputies, deliberate
indifference to continuing constitutional violations by
deputies, and supervisory liability. Id. In its
order the court directed that all claims raised by Plaintiff
shall be adjudicated in the first-filed case and that
Plaintiff file an amended complaint by July 14, 2017,
alleging all claims raised in the two complaints.
30, 2017, Plaintiff filed a motion to amend his allegations
to add Robert Mills ("Mills") as a defendant.
[DE-133] at 1. It appears Plaintiff also seeks to add James
N. Keller ("Keller") of the Jacksonville Police
Department, as a defendant in his individual and official
capacities. Id. at 9. According to Plaintiff, Mills
is the co-owner of Bob's Auto Center. Plaintiff learned
on or about March 10, 2017 during his criminal trial that
Mills assisted Defendant Michael Groom by installing a GPS
tracking device on Plaintiffs car without a search warrant.
Id. at 1. According to Plaintiff, Mills provided
Groom authority and assistance with illegally tracking
Plaintiff Evans by means of GPS. Id. at 4. Plaintiff
alleges that Mills did not have the authority to pass along
Plaintiffs location to Defendant Groom without permission,
which he did in violation of due process of law. Id.
at 2. Plaintiff claims Mills is liable as a state actor under
42 U.S.C. § 1983 for conspiring with local law
enforcement officers to violate his constitutional rights.
Id. at 3. In a declaration Plaintiff filed and
incorporated into his motion, Plaintiff alleges Keller lied
to the courts in order to obtain a telephone tracking
warrant, which led to him being located by law enforcement
and ultimately shot multiple times. [DE-134] at 1-2.
5, 2017, in response to Judge Boyle's order, Plaintiff
amended his complaint. [DE- 137]. In a two-page document
Plaintiff informs the court as follows:
The plaintiff seek [sic] action of gross negligence,
violation of the State of North Carolina Constitution under
Article 1 sec 1, 14, 18, 19, 21 and 25. In addition to NCGS
involving common law tort of excessive force, attempted first
degree murder, violation of due process, cruel and unusual
punishment, assault with deadly weapon with intent to kill
inflicting serious injuries, prejury [sic], subornation of
prejury [sic], conspiracy to commit prejury [sic], aiding and
abetting, violation of the U.S. Constitution and federal laws
along with racial profiling, intentional infliction of
emotional distress, eighth amendment, unconstitutional policy
and custom and supervisory liability.
Id. at 1-2. As part of his amendment, Plaintiff also
included a request the court appoint counsel to represent him
in this case. Id. at 2.
6, 2017, Plaintiff filed a motion to "amend and
supplement jurisdiction of authority pursuant to Federal
Rules of Civil Procedure Rule 15 and 14141 and 42 U.S.C.
§ 1997." [DE-139] at 1. Plaintiff asserts that he
seeks "additional authority under application of color
of law ... in accordance with 14141 making it unlawful for
state or local law enforcement agency to allow officer to
engage in a pattern or practice of conduct" depriving
persons of their constitutional rights. Id. at 1-2.
Defendants McPherson, Byrd, Hern, Barber, Barnes, Noble and
Hatcher have objected to Evans's July 6 motion on the
grounds that the motion is redundant of claims Plaintiff has
already made and Plaintiffs motion is therefore moot as this
court has already directed Plaintiff to file an amended
complaint in this matter. [DE-143].
Plaintiffs Motions to Amend [DE-133, -139]
regard to motions for leave to amend, Rule 15(a) of the
Federal Rules of Civil Procedure provides that leave to amend
a pleading "shall be freely given when justice so
requires." Fed.R.Civ.P. 15(a). The law is well settled
"that leave to amend a pleading should 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." Edwards v.
City of Goldsboro, 178 F.3d 231, 242 (4th Cir. 1999). An
amendment is futile "if the proposed amended complaint
fails to satisfy the requirements of the federal rules."
U.S. ex rel. Wilson v. Kellogg Brown & Root,
7nc., 525F.3d 370, 376 (4th Cir. 2008) (quoting United
States ex rel. Fowler v. Caremark RX, LLC, 496 F.3d 730,
740 (7th Cir. 2007)). Per the scheduling order entered in
this case, the deadline by which the parties were permitted
to add parties expired in February 2017. [DE-74]. However, it
appears that Plaintiff learned of the basis of his new
allegations in his March 2017 criminal trial and promptly
moved to amend the pleadings. The court has also reviewed
Plaintiffs claims and cannot determine them to be futile at
this time. Accordingly, Plaintiffs motions are ALLOWED.
However, Plaintiff is ORDERED to file an amended complaint,
containing all factual allegations and legal claims he wishes
to assert in this action. Plaintiff must file his amended
complaint within 14 days and the amended complaint must be
filed on the form which the Clerk of Court is DIRECTED to
Plaintiffs Motions to Appoint ...