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Jones v. McNeil

United States District Court, E.D. North Carolina, Western Division

September 13, 2019

TED JONES, JR., Plaintiff,
v.
JASON McNEIL and CITY OF LUMBERTON, Defendants.

          ORDER

          LOUISE W. FLANAGAN, UNITED STATES DISTRICT JUDGE

         This matter is before the court on defendants' motions for summary judgment (DE 43, 48) pursuant to Federal Rule of Civil Procedure 56, and motion for requests for admissions to be deemed admitted, for leave to amend dispositive motions, or for other alternative relief (DE 47), by defendant Jason McNeil (“McNeil”). Plaintiff did not respond to the motions. For the reasons that follow, the court grants the motions for summary judgment and denies as moot defendant McNeil's motion.

         STATEMENT OF THE CASE

         Plaintiff, a state inmate proceeding pro se, commenced this action by filing complaint in the Superior Court of Robeson County on January 11, 2017, alleging claims for violations of his civil rights pursuant to 42 U.S.C. § 1983. Plaintiff alleges defendant Jason McNeil (“McNeil”), an employee with the City of Lumberton, sexually assaulted him when plaintiff was participating in an inmate work release program. Plaintiff seeks compensatory and punitive damages.

         On March 29, 2017, defendants removed the action to this court, on the basis of 28 U.S.C. § 1441(a). On April 7 and 14, 2017, plaintiff filed motions to appoint counsel. On April 24, 2017, defendant City of Lumberton filed motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). On April 28, 2017, the court entered order denying plaintiff's motions to appoint counsel. On May 10, 2017, plaintiff filed motion to amend complaint. Defendant McNeil filed Rule 12(b)(6) motion to dismiss on August 28, 2017.

         On February 28, 2018, the court entered order granting plaintiff's motion to amend complaint and denying defendants' motions to dismiss as moot. On May 11, 2018, the court entered case management order governing discovery and pretrial dispositive motions practice. The parties completed discovery on or about September 18, 2018.

         On December 3, 2018, defendant McNeil filed the instant motion for summary judgment, arguing the undisputed record evidence establishes he did not act under color of state law during his sexual encounter with plaintiff and thus plaintiff cannot establish a claim under § 1983. In support, defendant McNeil relies upon a memorandum of law, statement of material facts, and the following: 1) affidavit of Charles Edward Evans (“Evans”), an employee of the City of Lumberton; and 2) affidavit of David Williford (“Williford”), a detective with the City of Lumberton Police Department. That same day, defendant McNeil filed the instant motion for requests for admission to be deemed admitted, for leave to file amended dispositive motions, or for other alternative relief.

         Also on December 3, 2018, defendant City of Lumberton filed the instant motion for summary judgment, arguing plaintiff has failed to establish a viable constitutional claim for municipal liability. In support, defendant City of Lumberton relies upon a memorandum of law, statement of material facts, and the following: 1) Evans's and Williford's affidavits (the same affidavits submitted in support of defendant McNeil's instant motion); 2) Evans's official job description; and 3) a Lumberton Police Department investigation report, dated July 8, 2015.

         On December 4, 2018, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court provided plaintiff notice of his right to respond to defendants' motions. Plaintiff, however, did not file responses to any of the motions.

         STATEMENT OF THE FACTS

         In 2015, plaintiff was an inmate at the Scotland Correctional Institution. (Evans Aff. (DE 46-1) ¶¶ 3, 20). Plaintiff participated in the Scotland C.I.'s work release program, and he was assigned to defendant City of Lumberton's public works department. (Id. ¶ 20). On workdays, plaintiff took lunch breaks at the public works department's shop breakroom. (Id. ¶¶ 11, 21-22).

         Defendant McNeil was employed at the Lumberton Public Works Department in the concrete pouring division. (Id. ¶¶ 16-17). Defendant McNeil took his lunch breaks in the same breakroom as plaintiff. (Id. ¶ 14, 18). However, defendant McNeil did not directly work with the Scotland C.I. inmates and he was not responsible for supervising their work. (Id. ¶¶ 17, 18).

         Plaintiff alleges defendant McNeil sexually assaulted him in the bathroom located adjacent to the shop breakroom on three separate occasions. Plaintiff's verified complaint provides as follows:

On July 8, 2015, plaintiff . . . was at the Department of Public Works on Cedar [Street] in Lumberton, NC, working as an inmate. At around . . . lunch break in the break room bathroom [of] the Department of Public Works building[, ] defendant . . . McNeil walked into the bathroom and told the plaintiff . . . if he [did not] give him oral sex he would call the prison (Scotland Correctional Institute) and tell them . . . plaintiff . . . was ...

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