WILLIAMS v. SMITH et al
Filing
56
MEMORANDUM OPINION, ORDER AND RECOMMENDED RULING - MAGISTRATE JUDGE, Recommending re 53 MOTION for Relief filed by PERCY ALLEN WILLIAMS, JR. be DENIED. Signed by MAG/JUDGE L. PATRICK AULD on 1/27/12. (Wilson, JoAnne)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
PERCY ALLEN WILLIAMS, JR.,
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
LEWIS O. SMITH, et al.,
Defendants.
1:10CV615
MEMORANDUM OPINION, ORDER AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
This
case
comes
before
the
undersigned
United
States
Magistrate Judge on Defendant Sami Hassan’s Motion to Seal and for
Protective Order (Docket Entry 32), Plaintiff’s Motion for Leave to
File an Amended Complaint (Docket Entry 36), Plaintiff’s second
Motion
for
the
Appointment
of
Counsel
(Docket
Entry
38),
Plaintiff’s second Motion for the Appointment of Expert Witness
(Docket Entry 41), and Plaintiff’s Rule 60(b)(4) Motion for Relief
from Judgment (Docket Entry 53). (See Docket Entries dated Jan. 17
and 24, 2012.)
An Order will be entered denying Defendant’s
foregoing motion, as well as the first three of Plaintiff’s
foregoing motions, and a Recommendation of denial will be entered
as to Plaintiff’s final foregoing motion.
BACKGROUND
This case began when Plaintiff, a prisoner of the State of
North Carolina, filed a form Complaint under 42 U.S.C. § 1983,
seeking damages and injunctive relief related to his alleged
medically-based need for a lower bunk assignment.
Entry 2.)
(See Docket
The Complaint named Lewis O. Smith, Dr. Sami Hassan,
Finesse G. Couch, Rev. Reginald E. Midgette, and Robert C. Lewis as
Defendants.
(Id. at 1-3.)
In connection with his Complaint,
Plaintiff filed a Declaration and Request to Proceed In Forma
Pauperis.
(See
Docket
Entry
1).
Pursuant
to
28
U.S.C.
§ 1915(e)(2), the Court (per the undersigned Magistrate Judge)
reviewed said Complaint and, in a Screening Order, held that:
1) Plaintiff could not proceed as a pauper as to any claims in
the
Complaint
against
Defendants
brought
directly
under
the
Americans with Disabilities Act of 1991 (the “ADA”), 42 U.S.C.
§§ 12101, et seq., and/or the Rehabilitation Act of 1973, 29 U.S.C.
§§ 701, et seq. (Docket Entry 3 at 3-4);1
2) Plaintiff could proceed as a pauper as to the claims in the
Complaint against Defendants Smith, Hassan, and Lewis under Section
1983 for violations of the Cruel and Unusual Punishment Clause of
the Eighth Amendment to the United States Constitution and the
Equal Protection Clause of the Fourteenth Amendment to the United
1
Instead, the Court advised Plaintiff (as it had in connection with a
prior case) that he could proceed with such claims only against the entity that
employed Defendants. (See Docket Entry 3 at 3-4.) The Court also observed that
the Complaint failed to make clear whether Plaintiff intended to pursue a claim
under Section 1983 predicated on violations of the ADA and the Rehabilitation Act
and that the law did not clearly permit such action. (See id. at 4-5 n.4.)
Accordingly, the Court treated the Complaint “as not raising this theory.” (Id.
at 5 n.4.) The Court similarly declined to construe the Complaint as asserting
any claim for negligence under state law or the Federal Tort Claims Act based on
the lack of anything but a conclusory reference to such matters. (See id. at 2.)
-2-
States
Constitution,
but
not
the
Due
Process
Clause
of
the
Fourteenth Amendment (id. at 5-6, 8-9); and
3) Plaintiff could not proceed as a pauper as to any claims in
the Complaint against Defendants Couch and Midgette (id. at 6-9).
Because the Complaint contained some claims as to which
Plaintiff could proceed as a pauper, but others as to which he
could not, the Court “allow[ed] Plaintiff, as the master of the
Complaint,
to
make
[an]
election”
between
dismissal
of
the
Complaint without prejudice or proceeding only as to the claims the
Court had identified as potentially viable.
(Id. at 9-10.)
The
Court therefore stayed the case for 20 days “to allow Plaintiff to
make that decision and . . . [warned that if he did] not file any
response within the [time] allowed, the case will continue as to
the proper claims only.”
(Id. at 10.)
In the Screening Order, the Court also directed Plaintiff to
make a partial payment of the filing fee and to execute a form
authorizing collection of the balance of the filing fee from his
prison account. (Id. at 11.) The Clerk mailed the Screening Order
to Plaintiff, who submitted the executed consent form and partial
payment (see Docket Entry 4; Docket Entry dated Nov. 5, 2010);
however, within the allotted time (and thereafter) Plaintiff failed
to inform the Court whether he preferred for the Court to enter a
dismissal without prejudice or to allow him to proceed as a pauper
only as to the claims identified by the Court as potentially
viable.
(See Docket Entries dated August 13, 2010, to present.)
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Following
receipt
of
the
executed
consent
form
and
the
required partial payment, the Court ordered Plaintiff to complete
form summonses for service and he did so, for all five Defendants,
whereupon the Clerk issued the summonses, the United States Marshal
attempted service by mail, and such attempts succeeded except as to
Defendant Midgette.
(See Docket Entries 5, 6, 11-15.)
Before
Defendants Smith, Hassan, Couch, and Lewis answered the Complaint,
Plaintiff filed an Amended Complaint, materially indistinguishable
from his original Complaint.
Entry 16.)
(Compare Docket Entry 2, with Docket
Defendants Smith, Couch, and Lewis thereafter filed an
Answer styled as responsive to both the Complaint and Amended
Complaint (Docket Entry 17) and Defendant Hassan filed an Answer
styled as responsive to the Amended Complaint (Docket Entry 18).
Plaintiff then filed his first Motion for the Appointment of
Counsel (Docket Entry 19) and first Motion to Appoint an Expert
Witness for Indigent Party (Docket Entry 22).
In
light
of
the
previously-entered
Screening
Order
and
Plaintiff’s failure to object to the narrowing of his Complaint as
a condition of proceeding as a pauper, a Recommendation was entered
that the Court dismiss:
1) any and all claims against Defendants Couch and Midgette
(Docket Entry 29 at 4-5, 11); and
2) any and all claims against Defendants Smith, Hassan, and
Lewis, except the claims under Section 1983 for violations of the
-4-
Eighth Amendment’s Cruel and Unusual Punishment Clause and the
Fourteenth Amendment’s Equal Protection Clause (id.).
In addition, because Plaintiff had failed to name the entity
that employed Defendants Smith, Hassan, and Lewis as a defendant in
the Amended Complaint despite multiple prior explanations from the
Court that he cannot pursue claims directly under the ADA and/or
the
Rehabilitation
Act
against
individual
defendants,
it
was
recommended that the Court dismiss any claims by Plaintiff brought
directly
under
Plaintiff’s
said
Amended
statutes.
Complaint
(Id.)
failed
to
Similarly,
make
clear
because
whether
Plaintiff intended to base a Section 1983 claim against Defendants
Smith, Hassan, and Lewis on alleged violations of the ADA and/or
the
Rehabilitation
Act,
notwithstanding
the
Court’s
previous
explanation that it would decline to treat the Complaint as stating
such a theory of recovery under Section 1983 absent clarification,
it was recommended that the Court construe the Amended Complaint as
failing to state a claim under Section 1983 predicated on alleged
violations of the ADA and/or the Rehabilitation Act.
(Id.)
Finally, a Scheduling Order was entered and Plaintiff’s first
Motion for Appointment of Counsel and first Motion to Appoint an
Expert Witness for Indigent Party were denied.
(Id. at 5-11.)
Defendant Hassan thereafter filed his instant Motion to Seal
and for Protective Order (Docket Entry 32) and Plaintiff filed his
various instant motions (Docket Entries 36, 38, 41, 53).
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DISCUSSION
Defendant Hassan’s instant Motion to Seal and for Protective
Order states that, in conjunction with his anticipated summary
judgment motion, he needs to submit for the Court’s inspection
certain of Plaintiff’s medical records and that, “[o]ut of an
abundance of caution, and to the extent applicable under the Health
Insurance
and
Portability
and
Accountability
Act
of
1996,
[Defendant] Hassan requests that he be permitted to file under seal
[those] medical records.”
citations omitted).)
(Docket Entry 32 at 2-3 (internal
Defendant Hassan acted prudently in seeking
to avoid unnecessary publication of Plaintiff’s medical records;
however, Plaintiff subsequently filed a response indicating that he
does not wish to keep his medical records out of the public domain.
(See Docket Entry 44.)
Accordingly, Defendant Hassan’s instant
Motion to Seal and for Protective Order (Docket Entry 32) will be
denied, but without prejudice to re-filing if Defendant Hassan can
show that Plaintiff’s response (Docket Entry 44) does not suffice
to protect Defendant Hassan from risk of privacy-related liability.
In Plaintiff’s Motion for Leave to File an Amended Complaint
(Docket Entry 36), Plaintiff again seeks to pursue claims under the
ADA and Rehabilitation Act by designating such claims as brought
against the individual defendants in their official capacity. (See
Docket Entry 36 at 1.)
Because such an official capacity claim in
reality would constitute a claim against the entity (i.e., the
State of North Carolina) that employs the individual defendants,
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rather than against the individual defendants, see Nivens v.
Gilchrist, 444 F.3d 237, 249 (4th Cir. 2006) (observing that
official capacity claim, “in effect, is against the governmental
entity employing [the official]”), allowing such an amendment would
address
the
fact
that
Plaintiff
cannot
proceed
against
an
individual defendant under the ADA and the Rehabilitation Act;
however,
such
an
amendment
would
create
a
new
problem.
Specifically, this suit then effectively would have distinct claims
against an entity (i.e., the State of North Carolina) and against
the individual defendants.
In other words, Plaintiff would be proceeding against the
State of North Carolina under the ADA and the Rehabilitation Act
and against Defendants Smith, Hassan, and Lewis under Section 1983
for
violations
of
the
Eighth
Amendment’s
Cruel
and
Unusual
Punishment Clause and the Fourteenth Amendment’s Equal Protection
Clause.2
Plaintiff
has
not
shown
that,
in
light
of
this
distinction, “any question of law or fact common to all defendants
will arise in the action,” Fed. R. Civ. P. 20(a)(2)(B).
Such
misjoinder would render the proposed amendment futile and would
prejudice
the
existing
defendants,
thus
warranting
denial
of
Plaintiff’s instant Motion for Leave to File an Amended Complaint
2
Plaintiff has failed to present sufficient allegations to proceed with
any official capacity claim under Section 1983. See Giancola v. State of W. Va.
Dep’t of Pub. Safety, 830 F.2d 547, 550 (4th Cir. 1987) (“[Because] the claims
against the officers in their official capacities are claims against the entities
for which the officers were acting . . ., it must be shown that the actions of
the officers were unconstitutional and were taken pursuant to a custom or policy
of the entity.” (emphasis added)).
-7-
(Docket Entry 36). See Fields v. Markel Ins. Co., Civil Action No.
09-6815,
2010
WL
1731164,
at
*1
(E.D.
La.
Apr.
28,
2010)
(unpublished); Sua v. Espinda, Civ. No. 09-592SOM/LEK, 2010 WL
184314, at *3 (D. Hawaii Jan. 19, 2010) (unpublished); Alvarez v.
Armour Pharm., No. 94C3587, 1997 WL 566373, at *2 (N.D. Ill. Sept.
8, 1997) (unpublished).3
As to Plaintiff’s second Motion for the Appointment of Counsel
(Docket Entry 38) and second Motion for the Appointment of Expert
Witness (Docket Entry 41), Plaintiff has offered nothing to cause
the Court to alter the conclusions underlying the denial of his
prior such motions (compare Docket Entry 29 at 5-11, with Docket
Entries 39, 42).
Said motions thus will be denied.
Finally, in his Rule 60(b)(4) Motion for Relief from Judgment,
Plaintiff asserts that the undersigned Magistrate Judge entered
judgment against him without his consent as required by 28 U.S.C.
§ 636(c).
(See Docket Entry 53 at 1.)
In fact, the undersigned
Magistrate Judge did not enter any judgment, but rather only
disposed of pretrial matters under 28 U.S.C. § 636(b)(1)(A) and
3
For reasons stated in Deberry v. Davis, No. 1:08CV582, 2010 WL 1610430,
at *7 n.8 (M.D.N.C. Apr. 19, 2010) (unpublished), the undersigned Magistrate
Judge will enter an order, rather than a recommendation, as to this matter. See
also Everett v. Prison Health Servs., 412 Fed. Appx. 604, 605 & n.2 (4th Cir.
2011) (“Everett moved for leave to amend her complaint . . . to add Appellee
Prison Health Services, Inc. (‘PHS’) as a defendant based on information obtained
during discovery, and to add a state-law claim of medical malpractice against
PHS. After a hearing, the magistrate judge denied Everett’s motion. Everett
timely objected, thereby preserving the issue for review by the district court.
. . . [T]he district court could not modify or set aside any portion of the
magistrate judge’s order unless the magistrate judge’s decision was ‘clearly
erroneous or contrary to law.’ Fed. R. Civ. P. 72(a); 28 U.S.C.A. § 636(b)(1)(A)
(2006 & Supp. 2010).”).
-8-
made recommendations as to the dismissal of claims under 28 U.S.C.
§ 636(b)(1)(B).
(See Docket Entry 29 at 11.)
Accordingly,
Plaintiff’s instant Rule 60(b)(4) Motion for Relief from Judgment
(Docket Entry 53) should be denied.4
IT IS THEREFORE ORDERED that Defendant Hassan’s instant Motion
to Seal and for Protective Order (Docket Entry 32) is DENIED, but
without prejudice to re-filing if Defendant Hassan can show that
Plaintiff’s response (Docket Entry 44) does not suffice to protect
Defendant Hassan from any privacy-related liability concerns.
IT IS FURTHER ORDERED that Plaintiff’s Motion for Leave to
File an Amended Complaint (Docket Entry 36), second Motion for the
Appointment of Counsel (Docket Entry 38), and second Motion for the
Appointment of Expert Witness (Docket Entry 41) are DENIED.
IT IS RECOMMENDED that Plaintiff’s Rule 60(b)(4) Motion for
Relief from Judgment (Docket Entry 53) be DENIED.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
January 27, 2012
4
Courts have treated such motions as falling within the scope of the
“additional duties” clause, 28 U.S.C. § 636(b)(3), such that a magistrate judge
may only enter a recommendation. See, e.g., McLeod, Alexander, Powel & Apffel,
P.C. v. Quarles, 925 F.2d 853, 856 (5th Cir. 1991).
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