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Dillard v. Perry
United States District Court, E.D. North Carolina, Western Division
March 18, 2019
THOMAS T. DILLARD, JR., Plaintiff,
FRANK PERRY, W. DAVID GUICE, GEORGE SOLOMON, BELINDA DUDLEY, GWENDOLYN SCOTT, REGINALD MEWBORN, E.W. WALLACE, THOMAS E. ASBELL, II, CYNTHIA O. THORNTON, PAULA S. PAGE, C. HERNANDEZ, D. GIBBS, JOE SOLANO, M. SLAGLE, LAUREN HARRELL, JASON PENLAND, TIM JONES, G. GARNER, TOMMY L. PAGE, JR., CAPTAIN MILLIS, JAMES C. MARLOWE, P.G. CHRISAWN, CHAD GREEN, MIKE BALL, LIEUTENANT PHILLIPS, SERGEANT DAWSON, MARY E. WILLIAMS, RASHIA L. NORMAN, SCARLETT R. ASWELL, CRISSY H. SMITH, NICKI A. WEBB, A SHLEY WE L C H, M ONI C A BOND, DAVID MAY, JR., JOHN DOE 1-3, LEMMIE SMITH, MATTHEW DELBRIDGE, KRISTIE STANBACK-BENNETT, NICOLE SPRUELL, CAPTAIN CAIN, RANDY A. MARKHAM, PATRICIA BLACKBURN, PROGRAM SUPERVISOR STEWART, E. WHITTED, GEORGIA S. BRYANT, K. FAIRLEY, CUSTODY OFFICER BARCINAS, KENNETH E. LASSITER, ERIK A. HOOKS, KRISTY NEWTON, G. CRUTCHFIELD, JEFFREY FIELDS, MARSHALL PIKE, and HAROLD BELK, Defendants.
W. FLANAGAN UNITED STATES DISTRICT JUDGE
matter is before the court on defendants' motions to
dismiss (DE 65, 69, 74), and the following motions filed by
plaintiff: 1) to strike defendants Delbridge, Newton and
Welch's reply brief (DE 94); 2) to allow waiver of the
requirements of Local Rule 7.2 (DE 95); 3) to require that
plaintiff's release from custody be within all necessary
transitional/aftercare assistance and/or without imposition
of undue prejudice to plaintiff's abilities to continue
to effectively litigate (DE 99); 4) for entry of order to
protect security/confidentiality of evidence and legal
documents (DE 100, 102); and 5) for entry of order upon
pending motions (DE 103). The motions to dismiss and
plaintiff's motion to strike have been fully briefed, and
defendants did not respond to the remaining motions. In this
posture, the issues raised are ripe for ruling. For the
following reasons, the court grants the North Carolina
Department of Public Safety defendants' (“DPS
defendants”) motion to dismiss and denies all remaining
motions as moot.
December 5, 2016, plaintiff, a state inmate proceeding pro
se, filed this civil rights action pursuant to 42 U.S.C.
§ 1983. Plaintiff alleges defendants failed to protect
him from assaults, did not provide adequate access to the
courts, and subjected him to unlawful disciplinary measures.
The operative amended complaint names 56 defendants, most of
whom are DPS prison officials. Plaintiff seeks compensatory
and punitive damages, and injunctive relief.
13, 2017, plaintiff filed motion to amend the complaint. The
court conducted its initial frivolity review of the complaint
and proposed amended complaint on June 16, 2017, and directed
plaintiff to file amended complaint particularizing his
claims. The court granted plaintiff's motion to amend in
that same order.
28, 2017, plaintiff filed motion for reconsideration of the
court's frivolity order. On July 19, 2017, plaintiff
filed motion to appoint counsel. The court denied the motion
for reconsideration in an order entered on July 25, 2017, and
again directed plaintiff to file an amended complaint that
complied with instructions set forth in the June 16, 2017,
filed his amended complaint on August 9, 2017. As discussed
further below, plaintiff's amended complaint named 56
defendants, alleged the same legal claims contained in the
original and proposed amended complaints, and referred the
court to his previously-filed pleadings for “greater
detail, depth, and specificity.” (DE 15 at
October 10, 2017, the court denied plaintiff's motion to
appoint counsel. On October 13, 2017, the court conducted its
frivolity review of the amended complaint and allowed the
matter to proceed.
Smith filed the instant motion to dismiss on April 26, 2018,
arguing the amended complaint fails to state a claim on which
relief can be granted. On May 11, 2018, defendants Delbridge,
Newton, and Welch filed the instant motion to dismiss,
arguing plaintiff's claims are barred by various immunity
doctrines. The DPS defendants filed their motion to dismiss
on May 16, 2018, asserting among other things that the
amended complaint does not comply with Rule 8 of the Federal
Rules of Civil Procedure. Plaintiff timely filed responses in
opposition to each of the instant motions. Defendants
Delbridge, Newton, and Welch filed reply in further support
of their motion to dismiss on July 9, 2018.
briefing on the motions to dismiss was complete, plaintiff
filed the following instant motions: 1) to strike defendants
Delbridge, Newton, and Welch's reply brief (July 16,
2018); 2) to allow waiver of requirements of Local Rule 7.2
(July 23, 2018); 3) to require that plaintiff's release
from custody be within all necessary transitional/aftercare
assistance and/or without imposition of undue prejudice to
plaintiff's abilities to continue to effectively litigate
(November 8, 2018); 4) for entry of order to protect
security/confidentiality of evidence and legal documents
(November 29, 2018 and January 7, 2019); and 5) for entry of
order upon pending motions (January 9, 2019).Defendants
Delbridge, Newton, and Welch filed response to
plaintiff's motion to strike reply brief, and defendants
did not file responses to the remaining motions.
amended complaint asserts the following claims for relief: 1)
defendants failed to protect plaintiff from assaults;
2) defendants enforced a no contact order in a manner that
prevented plaintiff from accessing the courts; 3) defendants
subjected plaintiff to unlawful disciplinary measures; 4)
defendants enforced DPS policy in a manner that prevented his
access to the courts; and 5) the DPS administrative remedy
procedure impairs plaintiff's access to the courts.
defendants move to dismiss plaintiff's complaint for
failure to comply with Rule 8 of the Federal Rules of Civil
Procedure. Rule 8(a)(2) provides that a complaint “must
contain . . . a short and plain statement of the claim
showing that the pleader is entitled to relief.”
Fed.R.Civ.P. 8(a)(2). When determining whether to dismiss a
complaint for failure to comply with Rule 8, the court
considers: 1) the length and complexity of the complaint; 2)
whether the complaint is clear enough to enable the defendant
to know how to defend himself; and 3) whether the plaintiff
was represented by counsel. North Carolina v.
McGuirt, 114 Fed.Appx. 555, 558 (4th Cir. 2004); see
also Kittay v. Kornstein, 230 F.3d 531, 541 (2d Cir.
2000); United States ex. rel. Garst v. Lockheed-Martin
Corp., 328 F.3d 374, 378 (7th Cir. 2003); Elliott v.
Bronson, 872 F.2d 20, 21-22 (2d Cir. 1989) (per
curiam). While a pro se plaintiff's complaint
is entitled to liberal construction, this rule of
construction is “not . . . without limits.”
Hill v. Braxton, 277 F.3d 701, 707 (4th Cir. 2002);
Beaudett v. City of Hampton, 775 F.2d 1274, 1278
(4th Cir. 1985).
the court's June 16, 2017, order explained that
plaintiff's original and proposed amended complaints did
not comply with Rule 8 and directed plaintiff to ...