Evans v. Capps et al

Filing 158

ORDER allowing 133 Motion to Amend; denying 137 Motion to Appoint Counsel; allowing 139 Motion to Amend; and denying 144 Motion to Amend regarding 137 MOTION to Appoint Counsel. Signed by US Magistrate Judge Robert B. Jones, Jr on 9/20/2017. Certified copy sent via US Mail to George R. Evans, 633 Old Landfill Rd., Taylorsville, NC 28681 with a form for filing a civil rights action. (Stouch, L.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
SOUTHERN DIVISION
· CONSOLIDATED ACTION
GEORGE REYNOLD EV ANS,

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v.

CHRISTOPHER CAPPS, et al.,
Defendants.
GEORGE R. EVANS
Plaintiff,
v.

MICHAEL GROOM, et al.,
Defendants.

NO. 7:15-CV-252-BO

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Plaintiff,

NO. 7:17-CV-4-BO

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ORDER

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This matter is before the court on Plaintiffs following motions: (1) Motion for Amendment
to Supplemental Complaint and Memorandum of Facts and Liw [DE-133], (2) Motion to Amend
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and Supplement Jurisdiction of Authority [DE-139], (3) Motion to Appoint Counsel [DE-137] and
(4) Motion to Amend Appointment of Counsel [DE-144].

I. BACKGROUND·
Plaintiff alleges the following facts in his complaint. On March 30, 2014, Plaintiff was
sitting in his vehicle in South Carolina when he was surrounded and subsequently pursued by South
Carolina authorities in a vehicle chase. After he crossed back into North Carolina he was pursued
by approximately forty law enforcement vehicles, including members of the Columbus County

Sheriffs Office and North 9arolina State Highway Patrol. Plaintiff ran out of gas and exited the
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vehicle with his hands raised holding a weapon clearly visible to the officers. Plaintiff was in the
process of putting his weapon down when he was shot by law enforcement officers and was· hit by
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approximately forty-three rounds. Plaintiff sustained serious injuries. Plaintiff filed his complaint
under 42 U.S.C. §§ 1983, 1985, 1988 alleging that the officer defendants violated plaintiffs civil
rights by using excessive force and discriminating against him b~sed on his race. Compl. [DE-1].
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The claims raised in this action are for supervisory liability, pattern or practice of di;regard of
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constitutional rights, and failure to properly

train/deliberat~

indifference against Sheriff Hatcher,
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excessive force, equal protection violation, due process violations, cruel and unusual punislhnent and
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racial profiling. [DE-1, -129]. Plaintiff further cites to claims under the North Carolina Coiistitution
and North Carolina General Statutes in his complaint. Id
In an order filed June 26, 2017, the court consolidated the instant case with a subsequent
complaint Plaintiff had filed in state court that was removed to this court. [DE-129]. Each of
Plaintiffs complaints makes similar claims arising out of the March 30, 2014 incident with law
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enforcement. In the second case, Plaintiff alleges state law claims for negligence, gross ne-gligence,,
intentional torts, excessive force, intentional infliction of emotional distress, unconstitutiopal policy
or customs, failure to properly screen, train, and supervise deputies, deliberate indifference to
continuing constitutional violations by deputies, and supervisory liability. Id In its order the court
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directed that all claims raised by Plaintiff shall be adjudicated in the first-filed case and that Plaintiff
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file an amended complaint by July 14, 2017, aJleging all claims raised in the two complaints. Id.
On June 30, 2017, Plaintiff filed a motion to amend his allegations to add Robert Mills
("Mills") as a defendant. [DE-133] at 1. It appears Plaintiff also seeks to add James N. Keller

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("Keller") of the Jacksonville Police Department, as a defendant in his individual and official
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capacities. Id at 9. According to Plait~tiff, Mills is the co-owner of Bob's Auto Center. Plaintiff
learned on or about March 10, 2017 during his criminal trial that Mills assisted Defendant Michael
Groom by installing a GPS tracking device on Plaintiff's car without a search warrant. Id. at 1.
According to Plaintiff, Mills provided Groom authority and assistance with illegally tracking
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Plaintiff Evans by means of GPS. Id at 4. Plaintiff alleges that Mills did not have the authority to
pass along Plaintiff's location to Defendant Groom without permission, which he did in violation
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of due process of law. Id. at 2. Plaintiff claims Mills is liable as a state actor under 42 U.S.C.

§

1983 for conspiring with local law enforcement officers to violate his constitutiopal rights. Id. at 3.
Irr a declaration Plaintiff filed and incorporated into his motion, Plaintiff alleges Keller lied to the
courts in order to obtain a telephone tracking warrant, which led to him being located by law
enforcement and ultimately shot multiple times. [DE-134] at 1-2.
On July 5, 2017, in response to Judge Boyle's order, Plaintiff amended his complaint. [DE137]. In a two-page document Plaintiff informs the court as follows:
The plaintiff seek [sic] action of gross negligence, violation of the State of North
Carolina Constitution under Article 1 sec 1, 14, 18, 19, 21 and 25. In addition to
NCGS involving common law tort of excessive force, attempted first degree murder,
violation of due process, cruel and unusual punishment, assault with deadly weapon
with intent to kill inflicting serious injuries, prejury [sic], subornation of prejury [sic],
conspiracy to commit prejury [sic], aiding and abetting, violation of the U.S.
Constitution and federal laws along with racial profiling, intentional infliction of
emotional distress, eighth amendment, unconstitutional policy and custom and
supervisory liability.

Id. at 1-2. As part of his amendment, Plaintiff also included a request the court appoint counsel
to represent him in this case. Id. at 2.
On July 6, 2017, Plaintiff filed a motion to "amend and supplement jurisdiction of authority
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pursuant to Federal Rules of Civil Procedure Rule 15 and 14141and42 U.S.C. § 1997." [DE-139]
at 1. Plaintiff asserts that he seeks "additional authority under application of color of law . . . in
accordance with 14141 making it unlawful for state or local law enforcement agency to allow officer
to engage in; a pattern or practice of conduct" depriving persons of their constitutional rights. Id. at
1-2. Defendants McPherson, Byrd, Hem, Barber, Barnes, Noble and Hatcher have objected to
Evans's July 6 motion on the grounds that the motion is redundant of claims Plaintiff has already
made and Plaintiffs motion is therefore moot as this court has already directed Plaintiff to file an
amended complaint in this matter. [DE-143].

II. DISCUSSION
A. Plaintiff's Motions to Amend [DE-133, -139]
With regard to motions for leave to amend, Rule 15(a) of the Federal Rules of Civil
Procedure provides that leave to amend a pleading "shall be freely given when justice so requires."
Fed. R. Civ. P. 15(a). The law is well settled "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 be futile." Edwards v. City of Goldsboro, 178 F.3d
231, 242 (4th Cir. 1999). An amendment is futile "if the proposed amended complaint fails to satisfy
the requirements of the federal rules."

·us. ex rel. Wilson v. Kellogg Brown & Root, Inc., 525 F.3d

370, 376 (4th Cir. 2008) (quoting United States ex rel. Fowlerv. Caremark RX, LLC, 496 F.3d 730,
740 (7th Cir. 2007)). Per the scheduling order entered in this case, the deadline by which the parties
were permitted to add parties expired in February 2017. [DE-74]. However, it appears that Plaintiff
learned of the basis of his new allegations in his March 2017 criminal trial and promptly moved to
amend the pleadings. The court has also reviewed Plaintiffs claims and cannot determine them to

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be futile at this time. Accordingly, Plaintiff's motions are ALLOWED. However, Plaintiff is
ORDERED to file an amended complaint, containing all factual allegations and legal claims he
wishes to assert in this action. Plaintiff must file his amended complaint within 14 days and the
amended complaint must be filed on the form which the Clerk of Court is DIRECTED to provide
Plaintiff.
B. Plaintiff's Motions to Appoint Counsel [DE-137, -144]

Plaintiff moves for appointment of counsel to assist with litigating this action. This is
Plaintiff's third and fourth motions to appoint counsel. As stated in the court's previous orders
denying Plaintiff's requests for counsel [DE-101, -145], there is no constitutional right to counsel
in civil cases, and courts should exercise their discretion to appoint counsel for pro se civil litigants
"only in exceptional cases." Cook v. Bounds, 518 F.2d 779, 780 (4th Cir. 1975). The existence of
exceptional circumstances justifying appointment of counsel depends upon "the type and complexity
of the case, and the abilities of the individuals bringing it." Whisenant v. Yuam, 739 F.2d 160, 163
(4th Cir. 1984), abrogated on other grounds by Mallard v. US. Dist. Court for the S. Dist. ofIowa,
490 U.S. 296 (1989) (quoting Branch v. Cole, 686 F.2d 264 (5th Cir. 1982)); see also Gordon v.
Leeke, 574 F.2d 1147, 1153 (4th Cir. 1978) ("Ifit is apparent ... that a prose litigant has a colorable

claim but lacks capacity to present it, the district court should appoint counsel to assist him.").
As stated in the court's previous orders denying Plaintiff's requests for counsel, Plaintiff has
demonstrated through the detail of his filings he is capable of proceeding pro se. Additionally,
Plaintiff's claim is not complex and is not one in which exceptional circumstances merit
appointment of counsel. Therefore, Plaintiff's motions to appoint counsel [DE-13 7, -144] are
DENIED.

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III. CONCLUSION
In summary the court rules as follows:
(1)

Plaintiffs motions to amend [DE-133, -139] are ALLOWED. However, Plaintiff
must file his amended complaint within 14 days of this order setting forth both the
factual allegations and legal claims he wishes to assert. Plaintiff must file his
amended complaint on the proper form. The clerk of court is DIRECTED to send
Plaintiff the form for filing a civil rights action. Failure to comply with the terms
of this court's order may resuh in dismissal of the action without prejudice.

(2)

Plaintiffs motions to appoint counsel [DE-137, -144] are DENIED.
So ordered, the 20th day of September 2017.

United States Magistrate Judge

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