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France-Bey v. Holbrook

United States District Court, M.D. North Carolina

February 15, 2019

JOSÉ L. FRANCE-BEY, Plaintiff,
v.
KENNY HOLBROOK, et al., Defendants.

          MEMORANDUM OPINION, RECOMMENDATION, AND ORDER OF UNITED STATES MAGISTRATE JUDGE

          L. Patrick Auld United States Magistrate Judge

         This case comes before the Court on the “Motion for Rule 56(f)” (Docket Entry 71) (the “Discovery Motion”)[1] filed by José L. France-Bey (the “Plaintiff”), Plaintiff's motion for reconsideration (Docket Entry 79) (the “Reconsideration Motion”), Plaintiff's “Motion for Eighth Amendment Violation with Medical Records from Hugh Chatham Memorial Hospital (Elkin, NC 28621)” (Docket Entry 89) (at times, the “Eighth Amendment Motion”), “Defendants' Motion to Strike Plaintiff's Rule 26(b)(1) Motion for Release of Surveillance Video, Rule 56(f) Motion, Plaintiff's First Set of Interrogatories, and Request for Production of Documents” (Docket Entry 81) (the “First Strike Motion”), “Defendants' Motion to Strike Plaintiff's Motion for Eighth Amendment Violation with Medical Records from Hugh Chatham Memorial Hospital” (Docket Entry 90) (the “Second Strike Motion”), the “Motion to Seal Memorandum of Defendants in Support of Summary Judgment” (Docket Entry 64) (the “First Sealing Motion”) filed by Kenny Holbrook, Jason White, Travis Bowman, and Brad Cook (collectively, the “Defendants”), Defendants' “Motion to Seal Reply to Plaintiff's Response to Defendants' Motion for Summary Judgment and Accompanying Affidavits” (Docket Entry 85) (the “Second Sealing Motion”), and the “Motion for Summary Judgment Pursuant to Fed.R.Civ.P. 56 of Kenny Holbrook, Jason White, Travis Bowman, and Brad Cook” (Docket Entry 61) (the “Summary Judgment Motion”). For the reasons that follow, the Court (1) will deny the First Motion to Strike, the Second Motion to Strike (collectively, the “Motions to Strike”), the Discovery Motion, the Reconsideration Motion, the Eighth Amendment Motion, the First Sealing Motion, and the Second Sealing Motion, and (2) should grant the Summary Judgment Motion.

         BACKGROUND

         Plaintiff, a pro se litigant, initiated this action against Defendants pursuant to 42 U.S.C. § 1983 for their alleged violation of his fourth-amendment rights. In particular, Plaintiff contends that Defendants used excessive force against him during an interaction on March 16, 2014. (See Docket Entry 2 (the “Complaint”) at 4, 5.)[2] According to the Complaint:

         On March 16, 2014, Plaintiff “was parked at the gravel pit awaiting [two women] to give them $10 for gas.” (Id. at 4.) As Plaintiff “wait[ed] for their arrival, Dobson Police Officer Mr. Kenneth James Holbrook approached [Plaintiff and] asked what [he] was doing out there.” (Id.) After speaking with Holbrook, Plaintiff returned to his car, and, “[u]nkowingly, Mr. Holbrook retrieved his flashlight [and likewise] approached” Plaintiff's car. (Id.) “Upon noticing a bag, Mr. Holbrook placed [Plaintiff's] left wrist in restraints [and] then slammed [Plaintiff] to the ground. He then placed his knee in [Plaintiff's] back [and] placed [Plaintiff's] right wrist in restraints behind [him].” (Id.) “Holbrook then called dispatch for back-up, ” and “Deput[ies] Jason White, Brad Cook[, and] Travis Bowman arrived on the scene.” (Id.) “The officers started asking [Plaintiff] questions [and he] refused to respond.” (Id.) “This is when the officers started choking [Plaintiff], placing their fingers around [his] jaw, slamm[ing him] on the trunk of a car face first[, ] and started raising [his] restrained hands well beyond [their] normal range of motion, punching [him] in [his] back [and] ribs.” (Id.) These events caused Plaintiff to develop “acute chronic back disorder, ” “sciatic nerve damage, [a] pinched nerve, bone spurs in [his] neck[, and] a possible bulging disc, ” as well as “extreme emotional distress, ” all requiring medical attention. (Id. at 4, 5.) “[W]hen the officials punched, choked, [and] kicked [Plaintiff], leaving [him] with minor bruises, swelling of face throat [and] loose/chipped teeth[, and] severe injuries, ” they acted with “excessive force” in violation of the United States Constitution. (Id. at 5.)

         Defendants moved to dismiss the Complaint on statute of limitations grounds. (See Docket Entry 16 at 4, 5.) The Court (per United States District Judge Loretta C. Biggs) denied that motion (see Docket Entry 40 at 1) and thereafter (per the undersigned) issued a Scheduling Order for this action (see Text Order dated Oct. 19, 2017). The Scheduling Order established a discovery deadline of April 20, 2018, and specified a deadline of December 20, 2017, for seeking leave to amend the pleadings. (See id.) On April 12, 2018, Plaintiff submitted a request for “subpoenas to file with the Surry County Sheriff's Dept. and the Dobson Police Dept.” for, inter alia, “[v]ideo surveillance cameras of cruisers involved in [the] incident on March 16, 2014[, ] involving [Defendants].” (Docket Entry 53 at 1.) The Court denied that motion, explaining that

1Plaintiff waited until only eight days remained in the (six-month) discovery period to request issuance of these subpoenas. By that late date, little chance existed that issuance and service of the subpoenas could occur before the close of discovery and, under no circumstances, could the subpoenas simultaneously have permitted the non-parties a reasonable time to respond and have required a response by the close of discovery.

(Docket Entry 56 (the “Order”) at 2.) The Court similarly denied Defendants' motion to unseal certain medical records produced “in response to a subpoena served by Defendants on [a] non-party on or after April 20, 2018 (the date of the subpoena's issuance)” (Docket Entry 58 at 1), on the grounds that “Defendants did not make adequate provisions for production of these medical records within the discovery period” (id. at 2).

         Defendants subsequently moved for summary judgment. (See Docket Entry 61.) In conjunction with their Summary Judgment Motion, Defendants filed their First Sealing Motion, asking “for an order to seal the unredacted Memorandum of Law in Support of Defendants' [Summary Judgment] Motion” as well as “Exhibit D to its [Summary Judgment] Motion.” (Docket Entry 64 at 1.) Plaintiff filed various responses in opposition to the Summary Judgment Motion (see, e.g., Docket Entries 72-78), as well as the Discovery Motion (Docket Entry 71) and Reconsideration Motion (Docket Entry 79). In response, Defendants filed, inter alia, their First Strike Motion (Docket Entry 81) and their Second Sealing Motion (Docket Entry 85), which seeks “an order to seal the unredacted Reply to Plaintiff's Response to Defendants' Motion for Summary Judgment [(the “Reply”)] and Accompanying Affidavits, Exhibit A to its Reply, Exhibit B to its Reply, and Exhibit C to its Reply” (id. at 1). Thereafter, Plaintiff filed his Eighth Amendment Motion (Docket Entry 89), and Defendants filed their Second Strike Motion, which seeks to strike Plaintiff's Eighth Amendment Motion (see Docket Entry 90 at 1).

         DISCUSSION

         I. Motions to Strike

         As an initial matter, Defendants move to strike certain of Plaintiff's motions. In particular, the First Strike Motion seeks, “pursuant to Rule 12(f)(2) of the Federal Rules of Civil Procedure” (the “Rules”) (Docket Entry 81 at 1), to strike Plaintiff's Discovery Motion and its attachments, as well as an earlier iteration of Plaintiff's Reconsideration Motion (compare Docket Entry 70, with Docket Entry 79). (See Docket Entry 81 at 1.) In addition, the Second Strike Motion asks the Court, also pursuant to Rule 12(f)(2), to strike Plaintiff's Eighth Amendment Motion. (See Docket Entry 90 at 1.)

         Rule 12(f) authorizes the Court to “strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” Fed.R.Civ.P. 12(f) (emphasis added). Rule 7(a) identifies which documents qualify as pleadings in federal cases. JHRG LLC v. StormWatch, Inc., No. 1:09cv919, 2011 WL 3111971, at *5 (M.D. N.C. July 26, 2011); see also General Tire & Rubber Co. v. Watkins, 331 F.2d 192, 195-96 (4th Cir. 1964) (analyzing whether filing constituted “a pleading within the meaning of [the] Rule[s]” by reference to Rule 7(a), which “defines pleadings”). Under Rule 7(a), the complaint; any third-party complaint; answers to (1) such complaints, (2) any crossclaims, and (3) any counterclaims; and, “if the [C]ourt orders one, a reply to an answer, ” constitute the pleadings. Fed.R.Civ.P. 7(a). This definition does not include motions (or discovery requests). Accordingly, the Court will deny the Motions to Strike.

         II. Discovery Motion

         Next, the Discovery Motion seeks (1) the Court's “assistance in locating two (2) witnesses” so that Plaintiff may obtain their “declarations, ” as well as (2) “any other just order(s).” (Docket Entry 71 at 1.) Plaintiff filed the Discovery Motion after discovery closed. (Compare id. (bearing date of June 3, 2018), with Text Order dated Oct. 19, 2017 (establishing discovery deadline of April 20, 2018).) As such, the Discovery Motion necessarily seeks, in part, a “just order[]” extending the discovery deadline. (Docket Entry 71 at 1.) Under this Court's Local Rules, however,

[m]otions seeking an extension of the discovery period . . . must be made or presented prior to the expiration of the time within which discovery is required to be completed. They must set forth good cause justifying the additional time and will be granted or approved only upon a showing that the parties have diligently pursued discovery.

M.D. N.C. LR 26.1(d).

         The Discovery Motion fails to satisfy these requirements.

         More specifically, the Discovery Motion not only qualifies as untimely, but also fails to either “set forth good cause justifying the additional time” or “show[] that [Plaintiff] ha[s] diligently pursued discovery, ” id. (See Docket Entry 71.) Under these circumstances, the Court will deny the Discovery Motion.

         III. Reconsideration Motion

         Plaintiff additionally seeks “reconsideration” of the Court's Order regarding “video surveillance from the cruisers involved in the” altercation between Plaintiff and Defendants on March 16, 2014. (Docket Entry 79 at 2.)[3] An order that resolves “fewer than all the claims or the rights and liabilities of fewer than all the parties . . . may be revised at any time before the entry of a [final] judgment.” Fed.R.Civ.P. 54(b). The power to reconsider such orders “is committed to the discretion of the district court.” American Canoe Ass'n v. Murphy Farms, Inc., 326 F.3d 505, 515 (4th Cir. 2003). Furthermore, although the Rules “do not set out any standard for reconsideration of interlocutory orders, ” federal courts generally “adhere[] to a fairly narrow set of grounds on which to reconsider their interlocutory orders.” Akeva, L.L.C. v. Adidas Am., Inc., 385 F.Supp.2d 559, 565 (M.D. N.C. 2005). More specifically, “[c]ourts will reconsider an interlocutory order in the following situations: (1) there has been an intervening change in controlling law; (2) there is additional evidence that was not previously available; or (3) the prior decision was based on clear error or would work manifest injustice.” Id. at 566.

         The Reconsideration Motion identifies no change in law or previously unavailable evidence. Instead, it maintains that “[t]his evidence production or non-production weighs heavily upon [D]efendants['] unlawfulness of their duties unbecoming of an officer.” (Docket Entry 79 at 2.) This contention fails to justify Rule 54(b) relief. First, the proposed evidence's potential significance does not excuse Plaintiff's failure to timely request this material during the discovery period. See M.D. N.C. LR. 26.1(c) (“The requirement that discovery be completed within a specified time means that adequate provisions must be made for interrogatories and requests for admission to be answered, for documents to be produced, and for depositions to be held within the discovery period.”). Second, Defendants aver that “[t]here is no dash cam or body cam video footage of the incident.” (Docket Entry 61-1, ¶ 37; accord Docket Entry 61-3, ¶ 20 (“There is no dash cam or body cam video footage of the arrest.”).) Thus, reconsidering the Order would produce no benefit for Plaintiff. Under these circumstances, the Court will exercise its discretion to deny the Reconsideration Motion.

         IV. Eighth Amendment Motion

         Finally, Plaintiff pursues his Eighth Amendment Motion; however, the nature of this motion remains unclear. Plaintiff begins the Eighth Amendment Motion by reciting various legal principles, including regarding the “Eighth Amendment” (Docket Entry 89 at 1-3), before stating:

Plaintiff did comply with initial officers [sic] request; however, once on the ground [and] placed in restraints [P]laintiff had a constitutional right not to engage in verbal and/or physical compliance. Plaintiff assumed he was being placed under arrest once restraints placed on his wrists behind his back. Plaintiff also assumed he was going to be placed in the back of the cruiser; however, this never occurred by any of the [D]efendants.
Conclusion
Wherefore, the Plaintiff respectfully request that the Court grant the Plaintiffs [sic] Motion for Eighth Amendment Violation along with relief as previously requested, injunctive relief so such never happens again, and any further relief the Court deems just and proper.

(Id. at 3 (underlining and indentation in original).) Thereafter, in his reply in support of the Eighth Amendment Motion, Plaintiff “respectfully request[s] that the Court grant [his] Motion for Eighth Amendment violation with Medical Records from Hugh Chatham Memorial Hospital because Attorneys for Defendants have previously stated records didn't show injuries conclusive of the ...


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