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Karrick v. North Carolina Department of Public Safety

United States District Court, W.D. North Carolina, Asheville Division

December 1, 2017



          Frank D. Whitney, Chief United States District Judge

         THIS 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).

         I. BACKGROUND

         Pro 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).[1]

         Plaintiff 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).

         Defendant 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.

         Plaintiff 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).

         On 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).

         In his 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 at 1).

         The 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).

         Defendant 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 damages.


         (1) Motion to Reopen Discovery

         The 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).

         (2) Motion to Dismiss

         A 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 omitted).

         (2) Sum ...

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