United States District Court, W.D. North Carolina, Asheville Division
D. Whitney, Chief United States District Judge
MATTER comes before the Court on Plaintiff's
Motion for Summary Judgment. (Doc. No. 39), and Defendant
Christopher Niven's Response that is construed as
incorporating a Motion to Dismiss and Motion to Reopen
Discovery, (Doc. No. 42).
se Plaintiff Jesse Lee Karrick, filed this action while
a North Carolina inmate on January 21, 2014, pursuant to 42
U.S.C. § 1983. The Complaint passed initial review on
the claim that Christopher Niven, while employed as a prison
case manager, sexually assaulted Plaintiff beginning on or
about April 10, 2012. Specifically, Plaintiff alleges that
Defendant Nivens coerced him to engage in sexual acts upon
threat of having him transferred to another institution, and
in exchange for contraband tobacco. Plaintiff finally
disclosed the abuse to a prison superintendent, which
prompted prison authorities to conduct an investigation.
Plaintiff filed an “addendum” to the Complaint,
(Doc. No. 13), attaching a March 9, 2015, letter from the
North Carolina Department of Public Safety
(“DPS”), stating that “Charges were brought
against the assailant by the State Bureau of Investigation.
The assailant received a sentence of 1 Y 8 M to 7 Y.”
(Doc. No.13 at 1).
filed an administrative remedy statement in support of his
Complaint in which he states under penalty of perjury that he
exhausted his administrative remedies with regards to his
claim. (Doc. No. 5). Attached to the statement are
Plaintiff's grievances. On January 2, 2013, he filed an
Administrative Remedy Procedure stating that Defendant Nivens
sexually abused him beginning on or about April 10, 2012.
(Doc. No. 5 at 8). The grievance was “accepted”
on January 17, 2013. (Doc. No. 5 at 5). The Step One Unit
Response on January18, 2013, indicates that an investigation
was commenced; Plaintiff signed the response and requested a
Step Two Appeal on Janaury 23, 2013. (Doc. No. 5 at 4). The
Step Two response dated February 21, 2013, indicates that
Nivens was no longer employed at the facility, that Plaintiff
had been transferred and was provided access to a
psychologist, and that an investigation was ongoing. (Doc.
No. 5 at 4). Plaintiff indicated his desire to appeal to the
DOC secretary that same day. (Doc. No. 5 at 4). The Step
Three findings dated March 18, 2013, indicate that an
investigation had begun, that Plaintiff was provided with
mental health services, and that the grievance was considered
resolved because proper action had been taken by staff. (Doc.
No. 5 at 3).
Nivens, who is also proceeding pro se, was served
with the Complaint in September, 2015, at which time he was
incarcerated. He filed a two-page unverified Answer on
September 25, 2015, in which he generally denies
Plaintiff's allegations, alleges that Plaintiff would
have filed a grievance sooner if the allegations were true,
that Plaintiff failed to exhaust administrative remedies, and
that compensatory and punitive damages are unavailable
because Plaintiff did not suffer any losses and failed to
prove that Nivens was motivated by evil intent. (Doc. No.
21). Defendant Nivens admits in the Answer that he resigned
from his position as case manager in mid-October 2012.
filed a Motion for Summary Judgment on March 25, 2016,
arguing that Defendant Nivens admitted to prison officials
that sexual contact occurred which resulted in a sentence of
incarceration of between two and seven years. (Doc. No. 23).
Plaintiff attached to his motion the North Carolina
Department of Public Safety's Answer in a case Plaintiff
brought against it before the North Carolina Industrial
Commission, in which it “admitted that in 2012 there
was sexual contact between Plaintiff and Christopher
Nivens….” (Doc. No. 23 at 3). The Court
dismissed the Motion for Summary Judgment without prejudice
as premature. (Doc. No. 28).
December 8, 2016, after the dates in the pretrial scheduling
order had expired, the Court provided the parties with the
opportunity to file dispositive motions within fourteen days,
but neither did so. (Doc. No. 31). The Order was returned as
undeliverable as to Defendant Nivens, so the Court gave the
parties another opportunity to file dispositive motions on
August 14, 2017. (Doc. No. 33). Again, nether party responded
so the Court issued an Order for Plaintiff to show cause why
the case should not be dismissed for lack of prosecution and
failure to comply with Court orders. (Doc. No. 35). The Court
dismissed the action without prejudice on September 28, 2017,
when Plaintiff failed to timely respond. (Doc. No. 37).
However, it reopened the case after receiving a letter and
the instant Motion for Summary Judgment from Plaintiff
explaining that he wished to continue the case. (Doc. Nos.
39, 40, 41).
present Motion for Summary Judgment, Plaintiff states that
Defendant Nivens manipulated, coerced, and threatened him to
engage in sexual relations while Plaintiff was an inmate and
Nivens was a prison employee. As proof he refers to
Nivens' confession “admitting everything to
officers” during the prison investigation. (Doc. No. 39
Court reopened the case and advised Defendant Nivens in
accordance with Roseboro v. Garrison, 528 F.2d 309
(4th Cir. 1975), of the requirements for filing a response to
the motion for summary judgment and of the manner in which
evidence can be submitted to the Court. (Doc. No. 41). In
particular, the Court informed Defendant Nivens that the
nonmoving party may not rely upon mere allegations or denials
of allegations in his pleadings to defeat a motion for
summary judgment, that he must provide sufficient evidence
from which a reasonable jury could return a verdict in his
favor, and that he must provide evidence that there is a
genuine issue for trial in the form admissible at trial such
as affidavits or unsworn declarations. (Doc. No. 41 at 3-5).
Nivens filed an unverified response to the summary judgment
motion on November 16, 2017. (Doc. No. 42). He again
generally denies Plaintiff's allegations and states that
he requested discovery from Plaintiff on September 25, 2015,
to which he never received a response. He asks the Court to
dismiss the case because Plaintiff failed to exhaust his
administrative remedies, and again alleges that Plaintiff
does not meet the criteria for compensatory or punitive
Motion to Reopen Discovery
court has “wide latitude in controlling discovery and
… [t]he latitude given the district courts extends as
well to the manner in which it orders the course and scope of
discovery.” Ardrey v. United Parcel Service,
798 F.3d 679, 682 (4th Cir. 1986). A scheduling
order may be modified “only for good cause and with the
judge's consent.” Fed.R.Civ.P. 16(b)(4).
“Good cause” means that “scheduling
deadlines cannot be met despite a party's diligent
efforts.” Dilmar Oil Co. v. Federated Mut. Ins.
Co., 986 F.Supp. 959, 980 (D.S.C. 1997) (citations
omitted). In deciding whether additional discovery is
appropriate, courts have considered the following factors:
whether trial is imminent; whether the request to reopen
discovery is opposed; whether the non-moving party would be
prejudiced; whether the moving party was diligent during the
discovery period; the foreseeability of the request based on
the time line set forth by the court; and the likelihood that
the discovery will lead to relevant evidence. See Smith
v. United States, 834 F.2d 166, 169 (10thCir.
1987); Chester v. Adams Auto Wash, Inc., 2015 WL
9222893 at *2 (E.D. N.C. Dec. 17, 2015).
Motion to Dismiss
motion to dismiss under Federal Rule of Civil Procedure
12(b)(6) tests the legal and factual sufficiency of a
complaint. Giarratano v. Johnson, 521 F.3d 298, 302
(4th Cir. 2008). In ruling on a motion to dismiss, the court
must accept as true all of the factual allegations contained
in the complaint. Erickson v. Pardus, 551 U.S. 89
(2007). A pro se complaint must be construed
liberally. Haines v. Kerner, 404 U.S. 519, 520
(1972); see also Smith v. Smith, 589 F.3d 736, 738
(4th Cir. 2009) (“Liberal construction of
the pleadings is particularly appropriate where …
there is a pro se complaint raising civil rights
issues.”). However, the liberal construction
requirement will not permit a district court to ignore a
clear failure to allege facts in his complaint which set
forth a claim that is cognizable under federal law.
Weller v. Dep't of Soc. Servs., 901 F.2d 387
(4th Cir. 1990). The complaint must assert facts that are
sufficient to “raise a right to relief above the
speculative level” and support a claim that is
“plausible on its face.” Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 555 (2007); see also
Ashcroft v. Iqbal, 556 U.S. 662 (2009). This
“plausibility standard requires a plaintiff to
demonstrate more than a sheer possibility that a defendant
has acted unlawfully.” Francis v. Giacomelli,
588 F.3d 186, 193 (4th Cir. 2009) (internal quotation marks