United States District Court, W.D. North Carolina, Asheville Division
D. Whitney, Chief United States District Judge.
MATTER is before the Court on
“Plaintiff’s Averment Notice of Reprisal; Failure
to Protect; Motion for Judgment as a Matter of Law; Motion
for Judgment on the Pleadings; Injunction Demand; and Special
Motion, Without Oppressive Delay(s) & Notice of
Amend” (Doc. No. 14), “Plaintiff’s Averment
Written Disposition Motion for Interrogatories” (Doc.
No. 15), “Plaintiff’s Motions for Injunctive
Relief Against Discrimination in Places of Public
Accommodation…” (Doc. No. 19), and
“Plaintiff’s Motion to Amend; Notice Motion; and
Motion for Injunction” (Doc. No. 23).
pro se incarcerated Plaintiff filed this civil
rights action pursuant to 42 U.S.C. § 1983 with regards
to incidents that allegedly occurred at Marion Correctional
Institution. The Complaint passed initial review on
Plaintiff’s claims of the use of excessive force and
retaliation, deliberate indifference to serious medical
needs, and violations of due process, and the Court exercised
supplemental jurisdiction over the related claims under North
Carolina law. (Doc. Nos. 1, 10). The Court denied
Plaintiff’s Motions seeking preliminary injunctive
relief. (Doc. Nos. 3, 8, 10).
has filed a number of pending Motions which are before the
Court for resolution. In his “Averment Notice of
Reprisal…” (Doc. No. 14), Plaintiff sets forth
allegations, seeks to add Defendants, and attaches exhibits
in support of his claims. He alleges that future retaliation
will occur and asks to be transferred out of Marion C.I.
Plaintiff further alleges that the Court deliberately denied
his prior Motions for injunctive relief and “is
presenting deliberate indifference and prejudice by harming
Plaintiff continue to endure harassment reprisal tactics when
preventive injunction will minimize reprisal motions and
irreparable injuries.” (Doc. No. 14 at 9).
“Motions for Injunctive Relief Against Discrimination
in Places of Public Accommodation…” (Doc. No.
19), Plaintiff asks that Defendants be “restrain[ed]
from depriving Plaintiff of property (i.e. Food Package
Boxes) and that his housing status (solitary confinement
pursuant to his non-participation status in the RDU program)
be review by the Directors Classification Committee.
Plaintiff contends that his RDU claims are meritorious and
that the public interest favors relief.
“Motion to Amend; Notice Motion; and Motion for
Injunction” (Doc. No. 23), Plaintiff seeks to add more
Defendants and claims, and seeks transfer to another prison.
extent that Plaintiff seeks injunctive relief, this claim is
moot because Plaintiff has been transferred to the Alexander
Correctional Institution and he does not allege that the
conditions of which he has complained are unlikely to recur.
See Williams v. Griffin, 952 F.2d 820
(4th Cir. 1991); Taylor v. Rogers, 781
F.2d 1047, 1048 n.1 (4th Cir. 1986).
appears to suggest that the Court should be recused from this
case due to the previous denial of his requests for
injunctive relief. A litigant may seek recusal of a judge if
the litigant files “a timely and sufficient affidavit
that the judge before whom the matter is pending has a
personal bias or prejudice either against him or in favor of
any adverse party.” 28 U.S.C. § 144. Further, a
justice, judge, or magistrate judge must disqualify himself
in any proceeding in which his impartiality might be
reasonably questioned. 28 U.S.C. § 455. Plaintiff has
failed to satisfy § 144 and no circumstances exist that
would reasonably call the Court’s impartiality into
question pursuant to § 455. Therefore, to the extent
that Plaintiff seeks the Court’s recusal, this Motion
will be denied.
Plaintiff’s “Averment Written Disposition Motion
for Interrogatories” was docketed as a Motion but is
actually a request for interrogatories that is premature and
was misdirected to the Court. (Doc. No. 15); see
Fed.R.Civ.P. 26(c) (as a general matter, a party must make
initial disclosures at or within 14 days after the parties
Rule 26(f) conference); Local Rule 26.1 (“Official
Court-ordered and enforceable discovery does not commence
until issuance of the scheduling order.”). Moreover,
routine discovery requests should not be filed with the
Court. See Local Rule 26.2 (“The parties shall
not file any initial disclosures, designations of expert
witnesses and their reports, discovery requests or responses
therto, deposition transcripts, or other discovery material
unless: (1) directed to do so by the Court; (2) such
materials are necessary for use in an in-court proceeding; or
(3) such materials are filed in support of, or in opposition
to, a motion or petition.”). The Motion will therefore
be denied and Plaintiff is instructed to engage in discovery
at the appropriate time and in accordance with the applicable
rules, procedures, and this Court’s orders.
Plaintiff seeks to add claims and Defendants. A plaintiff may
amend the complaint once as a matter of course within 21 days
after serving the complaint, or within 21 days after service
of a responsive pleading or 21 days after service of a motion
under Rule 12(b), (e), or (f), which is earlier. Fed.R.Civ.P.
15(a)(1). A plaintiff may subsequently amend with permission
from the court which “shall be freely granted when
justice so requires.” Fed.R.Civ.P. 15(a)(2). The Fourth
Circuit “ha[s] interpreted Rule 15(a) to provide that
‘leave to amend a pleading should be denied only when
the amendment would be prejudicial to the opposing party,
there has been bad faith on the part of the moving party, or
the amendment would have been futile.’” Laber
v. Harvey, 438 F.3d 404, 426 (4th Cir. 2006)
(en banc) (quoting Johnson v. Oroweat Foods
Co., 785 F.2d 503, 509 (4th Cir. 1986)).
will not be permitted to amend his Complaint in a piecemeal
fashion. However, the denial of the present Motions is
without prejudice to file an Amended Complaint in accordance
with all applicable timeliness and procedural requirements,
including the Local Rules of the United States District Court
for the Western District of North Carolina and the Federal
Rules of Civil Procedure. See, e.g.,
Mayle v. Felix, 545 U.S. 644, 664 (2005) (discussing
relation back). Rule 8(a) of the Federal Rules of Civil
Procedure requires pleadings to contain a “short and
plain statement of the claim showing that the pleader is
entitled to relief….” Fed.R.Civ.P. 8(a)(2). If
Plaintiff chooses to file an Amended Complaint, it must be on
a § 1983 form, which the Court will provide, and it must
refer to the instant case number so that it is docketed in
the correct case. The Amended Complaint must contain all
claims Plaintiff intends to bring in this action, identify
all defendants he intends to sue, and clearly set forth the
factual allegations against each of them. The Amended
Complaint will supersede the original Complaint so that any
claims or parties omitted from the Amended Complaint will be
waived. See Young v. City of Mt. Ranier, 238 F.3d
567 (4thCir. 2001).
IS, THEREFORE, ORDERED that:
1. Plaintiff’s “Averment Notice of Reprisal;
Failure to Protect; Motion for Judgment as a Matter of Law;
Motion for Judgment on the Pleadings; Injunction Demand; and
Special Motion, Without Oppressive Delay(s) & Notice of
Amend” (Doc. No. 14), is DENIED.
2. Plaintiff’s “Averment Written Disposition
Motion for Interrogatories” (Doc. No. 15), is