United States District Court, W.D. North Carolina, Charlotte Division
D. Whitney, Chief United States District Judge
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).
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).
closed on November 2, 2018, and the dispositive motion
deadline was December 3, 2018. (Doc. No. 46).
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).
Motion to Stay
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
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.
Motions for Reconsideration
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.
that Plaintiff intended to allege a due process claim, it is
insufficient to pass initial review and is subject to
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 § 1983 liability based on a state-created
danger theory, ...