PLESS v. WATKINS

Filing 24

ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE L. PATRICK AULD signed on 8/21/2012. IT IS THEREFORE ORDERED that Plaintiff's "Motion to AmendedPleading Local Rule 37.1(b)(4)(5) [sic]" (Docket Entry 19 ) is GRANTED i n that the Clerk shall send Plaintiff the forms and instructions for filing a Section 1983 action and, by September 21, 2012, Plaintiff shall return to the Clerk for filing the new complaint form in the following condition: 1) labeled at the t op as "Amended Complaint" with the case number for this case; 2) properly completed according to all instructions, including identification of all Defendants; and 3) with all claims and/or requests for relief against each properly-named Def endant clearly set out. IT IS FURTHER ORDERED that, within seven days of the filing of the foregoing "Amended Complaint," counsel for Defendant Watkins shall file a Notice stating whether said counsel will represent the additional De fendant(s) named in the Amended Complaint and will accept service of process on behalf of said additional Defendant(s), which the Court then will effect via the CM/ECF system. IT IS RECOMMENDED that Defendant Watkins's Motion for Judgment on the Pleadings (Docket Entry 14 ) be denied without prejudice to submission of the same or similar arguments in connection with a dispositive motion at the conclusion of the discovery period. (Daniel, J)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

HAROLD L. PLESS,

)
)
)
)
)
)
)
)
)

Plaintiff,
v.
DET. GARY P. WATKINS,
Defendant.

1:12CV94

ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
This

case

comes

before

the

undersigned

United

States

Magistrate Judge on Defendant Det. Gary P. Watkins’s Motion for
Judgment on the Pleadings (Docket Entry 14) and Plaintiff’s filing
styled as a “Motion to Amended Pleading Local Rule 37.1(b)(4)(5)
[sic]” (Docket Entry 19).

For the reasons that follow, Plaintiff

will have a chance to amend his Complaint and the Court should deny
Defendant Watkins’s instant Motion for Judgment on the Pleadings.
Plaintiff
Complaint

commenced

under

42

this

U.S.C.

§

case

by

filing

1983

against

a

pro

Defendant

se

form

Watkins

asserting various wrongs, including that Defendant Watkins searched
Plaintiff’s house without a warrant and used “brutal force” to
coerce Plaintiff into signing an application authorizing the taking
of a DNA sample.

(Docket Entry 2-2 at 3.)

Before Defendant

Watkins answered, Plaintiff filed a document he styled as a “Motion
to Amended Complaint” (Docket Entry 6), in which he listed “Det.

Hyatt” in the caption (along with Defendant Watkins) and asserted,
inter alia, that Defendant Watkins and putative defendant Hyatt
“extorted a false statements [sic] from the state witness . . .
[which they] offered before the Grand Jury to bring about the
indictment of the Plaintiff [knowing it] to be false” (id. at 2).
The undersigned Magistrate Judge denied the foregoing “Motion to
Amended Complaint” as “moot because, at th[at] procedural stage
(i.e.,

before

pleading),

Defendant

Plaintiff

Court’s approval.”
15(a)(1)(B)).)

[Watkins]

c[ould]

amend

ha[d]
his

filed

Complaint

a

responsive
without

the

(Docket Entry 11 at 1 (citing Fed. R. Civ. P.

That Order, however, did not make clear that

Plaintiff needed to file an amended complaint.

(See id. at 1-2.)

Defendant Watkins thereafter answered (Docket Entry 10) and
filed his instant Motion for Judgment on the Pleadings (Docket
Entry 14).

In support of his request for dismissal, Defendant

Watkins argued that:
1) “Plaintiff has failed to plead facts sufficient to support
any claim of constitutional violation or federal law sufficient to
withstand dismissal” (Docket Entry 15 at 5);
2) “Defendant [Watkins] is entitled to sovereign immunity” on
any claims brought against him in his official capacity (id. at 7);
3) all claims “against Detective Watkins in his individual
capacity should be dismissed based on the defense of qualified

2

immunity” (id. at 8); and
4) Defendant Watkins is entitled to judgment as a matter of
law based on North Carolina’s doctrine of public officer immunity
(id. at 9-10).
For his part, Plaintiff filed a “Discovery Plan” (Docket Entry
16), an opposition to Defendant Watkins’s instant Motion for
Judgment on the Pleadings (Docket Entry 17), and the instant
“Motion to Amended Pleading Local Rule 37.1(b)(4)(5) [sic]” (Docket
Entry 19).

In addition, although Local Rule 16.1(a) exempted this

case from Federal Rule of Civil Procedure 26(f)’s meeting mandate,
the

parties

nonetheless

conferred

and

agreed

on

a

discovery

schedule (Docket Entry 18), which the Court adopted (Docket Entry
20 at 2). In light of that development, the undersigned Magistrate
Judge solicited comment from Defendant Watkins as to whether he
still sought a ruling on his instant Motion for Judgment on the
Pleadings.

(Id.)

In addition, because Defendant Watkins did not

file a timely response to Plaintiff’s instant “Motion to Amended
Pleading Local Rule 37.1(b)(4)(5) [sic],” but Plaintiff failed to
include a certificate showing service of said filing on Defendant
Watkins,

the

undersigned

Magistrate

Judge

also

requested

information from Defendant Watkins as to whether he consented to
the proposed amendment. (Id.) Defendant Watkins subsequently made
filings (Docket Entries 22, 23), asserting that he still sought a

3

ruling on his instant Motion for Judgment on the Pleadings and that
he opposed amendment of the Complaint.
As to Defendant Watkins’s instant Motion for Judgment on the
Pleadings, the undersigned Magistrate Judge observes that, although
much of Plaintiff’s Complaint and the proffers in his motions
seeking leave to amend consist of legal conclusions and generalized
assertions, Plaintiff’s allegations regarding the search of his
home without a warrant, the use of force to coerce his assent to
the taking of a DNA sample, and the knowing presentation of false
evidence to a grand jury suffice to state claims against Defendant
Watkins and putative defendant Hyatt.

Moreover, because, at all

relevant times, it was clearly established that searching a house
without a warrant, using force to coerce consent to the taking of
a DNA sample, and providing false evidence to a grand jury was
unlawful, Defendant Watkins and putative defendant Hyatt would not
be entitled to qualified immunity as a matter of law at this stage
of the proceedings.

In addition, Defendant Watkins has failed to

cite any authority that state law sovereign immunity principles
would protect the municipal employer of Defendant Watkins and
putative defendant Hyatt from liability for any official capacity
claim against said officers under Section 1983 or that state law
public officer immunity doctrines would insulate Defendant Watkins
and putative defendant Hyatt from liability for any individual

4

capacity claim under Section 1983.
In light of the foregoing considerations, the Court should not
enter judgment on the pleadings against Plaintiff.

Further, given

that Plaintiff manifested an intent to amend his Complaint at a
time at which he could do so without the Court’s permission and
that the undersigned Magistrate Judge failed to give Plaintiff
clear

directions

accomplish

that

regarding
objective,

what

steps

he

Plaintiff

opportunity to file an amended complaint.

needed

will

be

to

take

to

afforded

an

That fact and the fact

that the parties have agreed to commence discovery both also
support denial of Defendant Watkins’s instant Motion for Judgment
on the Pleadings without prejudice to the presentation of the same
or similar arguments in connection with a dispositive motion filed
at the conclusion of discovery.
IT IS THEREFORE ORDERED that Plaintiff’s “Motion to Amended
Pleading Local Rule 37.1(b)(4)(5) [sic]” (Docket Entry 19) is
GRANTED in that the Clerk shall send Plaintiff the forms and
instructions for filing a Section 1983 action and, by September 21,
2012, Plaintiff shall return to the Clerk for filing the new
complaint form in the following condition:
1) labeled at the top as “Amended Complaint” with the case
number for this case;
2) properly completed according to all instructions, including

5

identification of all Defendants; and
3) with all claims and/or requests for relief against each
properly-named Defendant clearly set out.
IT IS FURTHER ORDERED that, within seven days of the filing of
the foregoing “Amended Complaint,” counsel for Defendant Watkins
shall file a Notice stating whether said counsel will represent the
additional Defendant(s) named in the Amended Complaint and will
accept

service

of

process

on

behalf

of

said

additional

Defendant(s), which the Court then will effect via the CM/ECF
system.
IT IS RECOMMENDED that Defendant Watkins’s Motion for Judgment
on the Pleadings (Docket Entry 14) be denied without prejudice to
submission of the same or similar arguments in connection with a
dispositive motion at the conclusion of the discovery period.
This the 21st day of August, 2012.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge

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