Howard v. Vance County Sheriff Dept., et al

Filing 21

ORDER denying 19 Motion to Stay Pending Appeal - Signed by District Judge Louise Wood Flanagan on 10/14/2015. (Baker, C.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
NO. 5:15-CV-110-FL

EMMA VICTORIA JOHNSON HOWARD,
Plaintiff,
v.
W. B. LILLEY, in his personal capacity and
RAYMOND EARL DICKERSON,
Defendants.

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ORDER

This matter comes before the court on plaintiff’s motion for stay pending appeal (DE 19).
Plaintiff commenced this action on March 20, 2015, asserting claims against several defendants
under 42 U.S.C. §1983 arising out of the alleged deprivation of her property. Upon frivolity review,
on August 28, 2015, the court dismissed plaintiff’s claim in part for failure to state a claim.
Specifically, the court dismissed claims against Vance County Sheriff’s Department, Vance County
District Court, and defendant W.B. Lilley in his official capacity, but allowed plaintiff’s claims
against defendant W.B. Lilley in his individual capacity and defendant Raymond Earl Dickerson to
remain.
The court then directed the plaintiff to present summonses to the clerk directed to the two
defendants remaining in the case. On September 17, 2015, plaintiff filed a “Response to Order,” in
which plaintiff again asserted the terminated claims and requested service against the terminated
defendants. She presented proposed summonses as to all defendants, including those terminated,

and those to individual defendants remaining. On September 18, 2015, plaintiff filed a notice of
interlocutory appeal as to the court’s August 28, 2015, order.
On September 23, 2015, the magistrate judge ordered the U.S. Marshal to make service on
behalf of plaintiff to the two non-terminated defendants, W.B. Lilley and Raymond Earl Dickerson.
Return of service as to Raymond Earl Dickerson was filed on October 9, 2015. Because the court
has terminated plaintiff’s claims against defendants Vance County Sheriff’s Department, Vance
County District Court, and defendant W.B. Lilley in his official capacity, and because the U.S.
Marshal has been ordered to serve summons to the remaining defendants, plaintiff’s argument to
direct summonses to the terminated defendants is without merit. Moreover, plaintiff’s notice of
interlocutory appeal does not deprive the court of jurisdiction.

See 28 U.S.C. § 1292(b)

(“application for an [interlocutory] appeal . . . shall not stay proceedings in the district court unless
the district judge or the Court of Appeals or a judge thereof shall so order.”).
Accordingly, there is no basis for a stay pending plaintiff’s interlocutory appeal, and this
matter shall proceed against defendants W.B. Lilley and Raymond Earl Dickerson.
SO ORDERED, this the 14th day of October, 2015.

LOUISE W. FLANAGAN
United States District Court Judge

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