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Michelson v. Duncan

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

May 31, 2019

VAN DUNCAN, et al., Defendants.


          Frank D. Whitney, Chief United States District Judge

         THIS MATTER is before the Court on multiple motions filed by pro se Plaintiff, (Doc. Nos. 122, 123, 130, 131, 138, 144, 148), and on Plaintiff Fourth Amended Complaint, (Doc. No. 146).

         I. BACKGROUND

         The incarcerated Plaintiff filed a pro se civil rights suit pursuant to 42 U.S.C. § 1983 with regards to incidents that allegedly occurred at the Lanesboro Correctional Institution. The Amended Complaint, (Doc. No. 15), passed initial review on claims against Federal Bureau of Alcohol, Tobacco, and Firearms Agent Mark Gage, Asheville Police Department Detective Stephen Coon, and Asheville Police Department Sergeant Mike Lamb on claims that they failed to protect him after he provided assistance and was labeled a “snitch” in jail that resulted in his assault by another inmate. (Doc. No. 20).

         Discovery closed on November 2, 2018, and the dispositive motion deadline was December 3, 2018. (Doc. No. 46).

         Plaintiff withdrew his official capacity claim against Defendant Gage, and Defendant Gage's Motion to Dismiss for Failure to State a Claim was granted on July 2, 2018. See (Doc. Nos. 42, 52, 106). Plaintiff appealed the Court's September 18, 2018 Order dismissing Defendant Gage from the lawsuit and denying multiple Motions filed by Plaintiff. See (Doc. Nos. 106, 111). The Fourth Circuit dismissed the appeal for lack of jurisdiction because the order Plaintiff seeks to appeal is not a final order or an appealable interlocutory or collateral order. Michelson v. Coon, 754 Fed.Appx. 226 (4th Cir. 2019). The Fourth Circuit issued its mandate on May 30, 2019. See (Doc. No. 150).


         (1) Motion to Stay

         Plaintiff filed a “Discovery Violation Inquiry” that was docketed on October 29, 2018 as a Motion to Stay this § 1983 proceeding pending the Fourth Circuit's appeal. (Doc. No. 122). In it, Plaintiff addresses the Court's October 17, 2018 Order, (Doc. No. 117), that instructs Plaintiff to direct his discovery requests to the appropriate parties in accordance with procedural rules and the Pretrial Order and Case Management Plan. Plaintiff states that the Pretrial Order and Case Management Plan does not make sense because he does not know how to engage in discovery and, if the Court cannot explain how discovery works, he requests a stay pending the Fourth Circuit's mandate on his interlocutory appeal.

         Plaintiff's request for a stay is denied as moot because the Fourth Circuit's mandate has now been issued. His request for the Court's assistance with discovery is denied because the Court is unable to provide litigants with legal advice. This request is also moot insofar as the discovery cutoff date has now expired.

         (2) Motions for Reconsideration

         In several Motions and Letters, (Doc. Nos. 123, 130, 131, 137, 138, 148), Plaintiff argues that the Court overlooked a due process claim its Order on Initial Review and erred in granting Defendant Gage's Motion to Dismiss. See (Doc. Nos. 20, 106). Plaintiff argues that he intended to assert a due process claim, i.e., that Defendants Gage and Coon violated due process by failing to investigate or protect Plaintiff following the September 11, 2015 Jail meeting when he told them he was in danger because Corey Mapp's cousin worked at the Jail. He argues that Defendants Coon and Gage should be required to explain why they failed to investigate his claims of danger or take any actions to ensure his safety.

         Assuming that Plaintiff intended to allege a due process claim, it is insufficient to pass initial review and is subject to dismissal.

         The constitution's due process guarantee is in part substantive and, in a narrow set of circumstances, may itself be invoked to challenge executive conduct where no other constitutional provision more directly applies. See County of Sacramento v. Lewis, 523 U.S. 833, 842-45 (1998), abrogated on other grounds by Saucier v. Katz, 533 U.S. 194 (2001). In order to prevail on such a theory, a plaintiff would have to show conduct that was “so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience.” Id. at 847 n.8; Manion v. N.C. Med. Bd., 693 Fed.Appx. 178 (4th Cir. 2017). Although the Due Process Clause forbids the State itself from depriving individuals of life, liberty or property without the due process of law, its language “cannot be fairly extended to impose an affirmative obligation on the State to ensure that those interests do not come to harm through other means.” DeShaney v. Winnebago Cnty. Dep't of Soc. Servs., 489 U.S. 189, 195-96 (1989). State actor liability may attach in two circumstances: (1) “when the State takes a person into its custody and holds him there against his will, ” (the state-custody or special-relationship exception); and (2) where the state itself creates the dangerous situation that resulted in a victim's injury (the state-created danger doctrine). Id. at 199-201. In the first situation, the affirmative duty to protect arises not from the state's knowledge of the individual's predicament or from its expressions of intent to help him, but from the limitations it has imposed on his freedom to act on his own behalf. Id. at 199-200. The second situation implicates the alternate framework of § 1983 liability wherein a plaintiff alleges that some conduct by an officer directly caused harm to the plaintiff. See Pinder v. Johnson, 54 F.3d 1169, 1176 n. * (4th Cir. 1995). To establish ยง 1983 liability based on a state-created danger theory, ...

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