United States District Court, E.D. North Carolina, Southern Division
W. FLANAGAN United States District Judge.
matter is before the court on plaintiff's motion for
preliminary injunction, (DE 37), in which plaintiff seeks
from the court entry of text order recommending continuation
of his pending criminal prosecution in Orange County Superior
Court, State v. Fuller, 2017 CRS 050340, set to
commence August 6, 2018.
obtain preliminary injunction, plaintiff must demonstrate
“he is likely to succeed on the merits, that he is
likely to suffer irreparable harm in the absence of
preliminary relief, that the balance of equities tips in his
favor, and that an injunction is in the public
interest.” Winter v. Natural Res. Defense Council,
Inc., 555 U.S. 7, 20 (2008).
case, plaintiff has not made the requisite showing of a
likelihood of success on the merits, given jurisdictional
bars to injunctive relief under Younger v. Harris,
401 U.S. 37 (1971). The Younger doctrine requires
federal courts to abstain from interfering with pending state
criminal proceedings. Id. Younger abstention is
appropriate where there is “(1) an ongoing state
judicial proceeding, instituted prior to any substantial
progress in the federal proceeding; that (2) implicates
important, substantial, or vital state interests; and (3)
provides an adequate opportunity for the plaintiff to raise
the federal constitutional claim advanced in the federal
lawsuit.” Nivens v. Gilchrist, 319 F.3d 151,
153 (4th Cir. 2003). “[A] federal court may disregard
Younger's mandate only where (1) there is a
showing of bad faith or harassment by state officials
responsible for the prosecution; (2) the state law to be
applied in the criminal proceeding is flagrantly and patently
violative of express constitutional prohibitions; or (3)
other extraordinary circumstances exist that present a threat
of immediate and irreparable injury.” Id.
plaintiff's request for relief falls within
Younger. First, there is a pending state criminal
proceeding. See State v. Fuller, 2017 CRS 050340.
Second, “North Carolina has a very important,
substantial, and vital interest in preventing violations of
its criminal laws.” Nivens v. Gilchrist, 319
F.3d 151, 154 (4th Cir. 2003). Finally, plaintiff's
“pending state prosecution provides the accused a fair
and sufficient opportunity for vindication of federal
constitutional rights.” Gilliam v. Foster, 75
F.3d 881, 904 (4th Cir. 1996) (en banc) (quotation omitted).
Furthermore, to the extent plaintiff's motion seeks
advisory order from the court, the court lacks the power to
grant such relief. See Preiser v. Newkirk, 422 U.S.
395, 401 (1975) (“[A] federal court has neither the
power to render advisory opinions nor to decide questions
that cannot affect the rights of the litigants in the case
before them.”). Accordingly, the court must deny
plaintiff's motion for preliminary injunction.
pending before the court are defendants' motion for leave
to file supplemental memorandum in support of their motion to
dismiss (DE 28), plaintiff's motion for extension of time
and leave to file amended complaint (DE 31), and
plaintiff's “Request for Fundamental Principles to
Apply.” (DE 34).
good cause shown, the court allows defendants' motion.
Next, to the extent plaintiff seeks extension of time to file
response to defendants' motion to dismiss, for good cause
shown, the court allows plaintiff's motion and accepts
plaintiff's late response filed on July 23, 2018. With
respect to that portion of plaintiff's motion seeking
leave to file amended complaint, where plaintiff filed motion
within with time allowed by the federal rules, the court also
grants that request. See Fed. R. Civil P. 15(a)
(1)(B) (allowing party to amend pleading once as a matter of
course within 21 days after service of responsive pleading,
if the pleading is one to which a responsive pleading is
plaintiff requests entry of text order “urging
restraint upon the volume of legal submissions, ” and
requiring that the court only consider those “exhibits
that directly relate to the legal issue before the
court.” (DE 34, ¶ 11). To the extent plaintiff
seeks entry of a text order urging the court to apply
“fundamental legal principles, ” the court denies
plaintiff's motion. The court construes plaintiff's
motion more reasonably as a supplemental response in
opposition to defendants' motion to dismiss and will
consider it as such in resolving that motion.
on the foregoing, the court DENIES plaintiff's motion for
preliminary injunction. (DE 37). In addition, the court
ALLOWS defendants' motion for leave to file supplemental
memorandum in support of their motion to dismiss. (DE 28).
Defendants are DIRECTED to file supplement to their motion to
dismiss within 7 days entry of this order. Plaintiff shall
have 14 days thereafter to file any response thereto.
court also ALLOWS plaintiff s motion for extension of time
and leave to file amended complaint. (DE 31). Plaintiff is
DIRECTED to file any amended complaint within 21 days entry
of this ...