United States District Court, W.D. North Carolina, Statesville Division
D. Whitney Chief United States District Judge
MATTER is before the Court on the pro se
Plaintiff's Motion to Reargue Dismissal of Defendants
McFarland and Rinaldo, (Doc. No. 81), Motion for Preliminary
Injunction, (Doc. No. 82), Motion to Correct Clerical Error,
(Doc. No. 83), and Motion to Compel Discovery and/or
Discovery Conference (Doc. No. 105).
Motion to Reargue, Plaintiff asks the Court to amend its
Order on initial review of the Amended Complaint under Rule
52(b) of the Federal Rules of Civil Procedure. In that Order
on initial review, the Court dismissed Plaintiff's claims
against Defendants McFarlane and Rinaldo under 28 U.S.C.
§ 1915(e)(2)(B)(ii) for failure to state a claim upon
which relief can be granted. See (Doc. No. 75).
52(b) provides that, “[o]n a party's motion filed
no later than 28 days after the entry of judgment, the court
may amend its findings - or make additional findings - and
may amend the judgment accordingly.” The primary
purpose of Rule 52(b) is to “ensure that the trial
court's findings of fact and legal reasoning are
clear.” Driskell v. Summit Contracting Group,
Inc., 325 F.Supp.3d 665 (W.D. N.C. 2018) (quoting
Bailey v. Kennedy, 2002 WL 32818915 at *2 (W.D. N.C.
June 10, 2002)). Motions under Rule 25(b) are “intended
to correct manifest errors of law or fact or to present newly
discovered evidence.” Id. (quoting Goodwin
v. Cockrell, 2015 WL 12785181 at *1 (E.D. N.C. Dec. 30,
“requests to reargue dismissal of Defendants McFarlane
and Rinaldo, ” asserting that the Court should not have
dismissed for failure to state a claim. (Doc. No. 81 at 1).
Plaintiff argues that Defendants McFarlane and Rinaldo were
deliberately indifferent to a serious medical need and used
excessive force against him. He argues that these Defendants
were acting under the color of state law, were deliberately
indifferent by physically and sexually assaulting him, and
that they committed “an evil deed and a crime”
against him. (Doc. No. 81 at 7). Plaintiff alleges with
regards to his claim of medical deliberate indifference that
his surgical scar is larger than McFarland had promised, and
that x-rays reveal that the rods, screws, and ceramic disks
are nothing like McFarland had described. Plaintiff further
argues that Defendants Frick and Morton failed to protect
Plaintiff from a substantial risk of harm. Plaintiff
essentially seeks to reallege the facts contained in his
Amended Complaint but he fails to explain how the Court's
Order on initial review is manifestly erroneous. Accordingly,
Rule 52(b) is inapplicable here and Plaintiff's Motion
will be denied.
Motion for Preliminary Injunction, (Doc. No. 82), Plaintiff
claims that the injuries he received on September 23, 2015
from the denial of adequate medical treatment have been
concealed for more than three years and that he continues to
suffer serious physical and mental injuries. He requests an
order compelling each Defendant to perform their duties under
the Constitution by taking him to a suitable independent
doctor then carrying out that doctor's orders and
otherwise provide him with adequate medical care.
preliminary injunction is an extraordinary remedy never
awarded as of right.” Winter v. Natural Res. Def.
Council, Inc., 555 U.S. 7, 24 (2008) (citing Munaf
v. Geren, 553 U.S. 674, 689-90 (2008)). A preliminary
injunction is a remedy that is “granted only sparingly
and in limited circumstances.” MicroStrategy, Inc.
v. Motorola, Inc., 245 F.3d 335, 339 (4th
Cir. 2001) (quoting Direx Israel, Ltd. v. Breakthrough
Med. Corp., 952 F.2d 802, 816 (4th Cir.
1991)). To obtain a preliminary injunction, a movant must
demonstrate: (1) that he is likely to succeed on the merits;
(2) that he is likely to suffer irreparable harm in the
absence of preliminary relief; (3) that the balance of
equities tips in his favor; and (4) that an injunction is in
the public interest. DiBiase v. SPX Corp., 872 F.3d
224, 230 (4th Cir. 2017) (quoting Winter,
555 U.S. at 20).
has failed to demonstrate that he is likely to succeed on the
merits, that he is likely to suffer irreparable harm in the
absence of preliminary relief, that the balance of equities
tips in his favor, or that an injunction is in the public
interest. Therefore, his motion for preliminary injunctive
relief will be denied.
Motion to Correct Clerical Error, (Doc. No. 83), Plaintiff
acknowledges that he violated Rule 10(a) by referring in the
caption of his Motion to Reargue and the supporting
documents, (Doc. No. 83), as “Defendants” rather
than “Paula Smith.” Plaintiff's Motion is
denied as moot because the Court has addressed those papers
on the merits despite his error and its correction at this
juncture would serve no meaningful purpose.
Motion to Compel Discovery, Plaintiff asks that the Court
require Defendants produce documents he requested on June 30,
2019 and/or hold a discovery conference. This Motion will be
denied as premature because there are some Defendants who
remain unserved and the Pretrial Management Order has not yet
been entered. Further, Plaintiff's case will be referred
to NCPLS for assistance with discovery at the appropriate
time which, if NCPLS enters the case, would render
Plaintiff's pro se discovery efforts moot.
See (Doc. Nos. 104, 106).
IS HEREBY ORDERED that:
1. Plaintiff s Motion to Reargue Dismissal of Defendants
McFarland and Rinaldo, (Doc. No. 81), is
2. Plaintiffs Motion for Preliminary Injunction, (Doc. No.
82), is DENIED.
3. Plaintiffs Motion to Correct Clerical Error, (Doc. No.
83), is D ...