MCNEILL v. POOLE et al

Filing 48

MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE JOE L. WEBSTER signed on 12/3/2018. RECOMMENDED that Plaintiff's Motions for Preliminary Injunctions and Temporary Restraining Orders (Doc ket Entry 22 , 35 ) be DENIED. FURTHER RECOMMENDED that Plaintiff's Motion for Entry of Default Judgment (Docket Entry 28 ) be DENIED and Defendant Anderson's Motion to Remove Default and Extend the Time to Answer (Docket Entry 38 ) be GRANTED. (Daniel, J)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
JAMES C. MCNEILL,
Plaintiff,
v.
KATY POOLE, et al.,
Defendants.

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1:17CV924

MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
This matter comes before the Court on Plaintiff James C. McNeill’s motions for
preliminary injunctions and temporary restraining orders. (Docket Entries 22, 35.) Defendant
Katy Poole has responded to Plaintiff’s first motion for a preliminary injunction and
restraining order. (Docket Entry 33.) Also, before the Court is Plaintiff’s Motion for Default
Judgment (Docket Entry 28) and Defendant Patricia Anderson’s Motion to Remove Default
and Extend the Time to Answer. (Docket Entry 38.) Plaintiff has responded to Defendant
Anderson’s motion.

(Docket Entry 41.)

For the following reasons, the undersigned

recommends that Plaintiff’s motions be denied, and Defendant Anderson’s motion be
granted.
BACKGROUND
Plaintiff, a pro se prisoner currently housed at Polk Correctional Institution, filed a
complaint pursuant to 42 U.S.C. § 1983 alleging constitutional violations against Defendants
Poole, George Solomon, Shannon Maples, George S. Warren, William Bullard, Paul Taylor,
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Sgt. Johnston, Doctor Locklear-Jones, Shaquanna M. Wall, and Anderson. (See generally
Complaint, Docket Entry 1.) In his complaint, Plaintiff essentially asserts that Defendants:
(1) suppressed his grievances regarding a sexual harassment complaint he made against a
prison official; (2) charged Plaintiff for assaulting another inmate after being told by a prison
official that there would be “no write-up”; (3) would not permit Plaintiff to collect his legal
mail; (4) harassed and physically assaulted Plaintiff for maintaining his sexual harassment
complaint against a prison official; and (5) failed to give Plaintiff his prescribed medications.
(Id.)
The record reflects that by May of 2018, Defendants Poole, Maples, Bullard, Anderson
and Warren had all been served in this matter. (Docket Entries 17, 21.) Service was returned
unexecuted as to the remaining defendants. (Docket Entry 18; see also Docket Entries 45, 46.)
On September 24, 2018, an entry of default was entered against Defendant Anderson for
failing to file a responsive pleading after being served. (Docket Entry 26.) Defendants Bullard,
Maples, Poole and Warren filed an answer on October 8, 2018. (Docket Entry 34.) On
October 31, 2018, Defendant Anderson filed a motion to set aside the entry of default and for
an extension of time to answer. (Docket Entry 38.) Plaintiff responded in opposition to this
motion. (Docket Entry 41.)
While he was housed at Scotland Correctional Institution, Plaintiff motioned for a
preliminary injunction and temporary restraining order against Defendants Poole and
Locklear-Jones. (Docket Entry 22.) Since this motion was filed, Plaintiff has relocated to Polk
Correctional Institution. (Docket Entry 23.) Through this motion, Plaintiff apparently seeks
an order that will provide him with a prescription for his previously prescribed pain
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medications of Tramadol, Gabapentin, Baclofen, and Ibuprofen; an extra mattress and a chair
for his cell; and delivery of Lisinopril to his cell.1 (See generally Docket Entry 22.) In his motion,
Plaintiff alleges that in early 2018 he was prescribed, and the North Carolina Department of
Public Safety approved of, Tramadol, Gabapentin, and Baclofen. (Id. at 1.) Further, Plaintiff
alleges that after he was transferred to Scotland Correctional Institution, Defendant LocklearJones discontinued the order for an extra mattress and chair in Plaintiff’s cell. (Id. at 2.)
Defendant Locklear-Jones also discontinued Plaintiff’s prescriptions after a nurse alleged that
Plaintiff used abusive language towards her (and other medical staff) and in retaliation for
Plaintiff’s filing of a sexual harassment complaint against a male nurse a year-and-a-half earlier.
(Id. at 2-3.)
Plaintiff next alleges that at a disciplinary hearing, Officer Sean Dillard dismissed all
disciplinary charges against Plaintiff, but Defendant Locklear-Jones did not reinstate Plaintiff’s
extra mattress and chair in his cell nor re-order his past medications. (Id.) Plaintiff states that
his situation has become “life-threatening,” as he “has been in agonizing pain, unable to rest
comfortably, missing numerous hours of sleep nightly,” and that his “back has went out
several times, nerve pain made him immobile,” in addition to numerous sick calls that went
unheard. (Id.)
Defendant Poole has filed a response to Plaintiff’s motion. (Docket Entry 33.)
Defendant Locklear-Jones, who has not yet been served, has not filed a response. Plaintiff

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Plaintiff does not explicitly state the form of relief that he seeks. Instead, it is inferred, and Defendant
Poole agrees that “the plaintiff is seeking to have a doctor prescribe him pain medications, prescribe
an ‘active extra mattress and chair in cell,’ and . . . medical staff to deliver his high blood pressure
medication, Lasinopril [sic], ‘by the dose.’” (Docket Entry 33.)

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also motioned for a second preliminary injunction and temporary restraining order “against
Defendants whose DPS co-workers at Polk Correctional Institution have confiscated all of
Plaintiff’s legal materials . . . under the guise of ‘interim sanctions.’” (Docket Entry 35.)
Although Plaintiff does not explicitly describe what relief he is seeking, the Court assumes that
Plaintiff seeks return of his legal materials.
DISCUSSION
1. Preliminary Injunction and Temporary Restraining Order
A party seeking a preliminary injunction or temporary restraining order2 must establish
all four of the following elements: (1) he is likely to succeed on the merits; (2) he is likely to
suffer irreparable harm in the absence of preliminary relief; (3) the balance of equities tips in
his favor; and (4) an injunction is in the public interest. Winter v. Natural Resources Defense
Council, Inc., 555 U.S. 7, 20 (2008); see also The Real Truth About Obama, Inc. v. Fed. Election Comm’n,
575 F.3d 342, 346-47 (4th Cir. 2009), overruling Blackwelder Furniture Co. of Statesville v. Seilig Mfg.
Co., 550 F.2d 189 (4th Cir. 1977).3 A party must make a clear showing that he is likely to
succeed on the merits of his claim. Winter, 555 U.S. at 20; Real Truth, 575 F.3d at 345-46.
Similarly, he must make a clear showing that he is likely to be irreparably harmed absent
injunctive relief. Winter, 555 U.S. at 20-22; Real Truth, 575 F.3d at 347. Only then does the
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The substantive standard for granting either a temporary restraining order or a preliminary injunction
is the same. See e.g., United States Dept. of Labor v. Wolf Run Mining Co., 452 F.3d 275, 281 n.1 (4th Cir.
2006).
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The original decision in Real Truth was vacated by the Supreme Court for further consideration in
light of Citizens United v. Fed. Election Comm’n, 558 U.S. 310 (2010). However, the Fourth Circuit
reissued its opinion on Parts I and II of its earlier opinion in the case, 575 F.3d at 345-47, stating the
facts and articulating the standard for issuance of a preliminary injunction, before remanding it to the
district court for consideration in light of Citizens United. See The Real Truth About Obama, Inc. v. Fed.
Election Comm’n, 607 F.3d 355 (4th Cir. 2010).

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court consider whether the balance of equities tips in the favor of the party seeking the
injunction. See Real Truth, 575 F.3d at 346-47. Finally, the court must pay particular regard
to the impact of the extraordinary relief of an injunction upon the public interest. Real Truth,
575 F.3d at 347 (quoting Winter, 555 U.S. at 23-24). Injunctive relief, such as the issuance of
a preliminary injunction, is an extraordinary remedy that may be awarded only upon a clear
showing that the plaintiff is entitled to such relief. Mazurek v. Armstrong, 520 U.S. 968, 972
(1997); see also MicroStrategy Inc. v. Motorola, Inc., 245 F.3d 335, 339 (4th Cir. 2001) (citation and
quotation omitted) (a preliminary injunction is an “extraordinary remed[y] involving the
exercise of very far-reaching power to be granted only sparingly and in limited circumstances”).
Here, Plaintiff has failed to make the requisite showing for preliminary injunctive relief.
At this point in the proceedings Plaintiff has not made a “clear showing” that he is likely to
succeed on the merits. Winter, 444 U.S. at 22. The Court first notes that Plaintiff’s second
request for injunctive relief involves individuals not named in the pending action. In this
context, “[t]he Court cannot issue an order directed at non-parties.” Drayton v. Ozmint, No.
CIV.A. 8:10-2079-HFF, 2010 WL 4922698, at *1 (D.S.C. Nov. 3, 2010) (unpublished), report
and recommendation adopted, No. CIV.A. 8:10-02079, 2010 WL 4922692 (D.S.C. Nov. 29, 2010)
(unpublished). Accordingly, in this case Plaintiff has no chance of success on the merits on
the underlying claim against those individuals. Second, as to Plaintiff’s request for relief
regarding his medication, he has not shown that he is likely to succeed on the merits of that
claim.
To succeed on a retaliation claim under § 1983, a plaintiff must establish “either that
the retaliatory act was taken in response to the exercise of a constitutionally protected right or
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that the act itself violated such a right.” Adams v. Rice, 40 F.3d 72, 75 (4th Cir. 1994) (citation
omitted). In the prison context, “if an inmate exercises his First Amendment right when he
files a prison grievance, retaliation against him for doing so is unconstitutional.” Booker v. S.C.
Dep’t of Corr., 855 F.3d 533, 540 (4th Cir. 2017).
Here at this stage, Plaintiff has not demonstrated that he is likely to succeed on the
merits because there are no allegations that Defendant Poole is involved in or has control over
the decision to prescribe pain medications to Plaintiff. In the Complaint, Plaintiff alleges that
unserved Defendant Locklear-Jones, not Defendant Poole, denied him pain medication in
retaliation for filing a grievance. (Compl. at 17-19.) In his motion for a preliminary injunction,
Plaintiff alleges that Defendant Locklear-Jones (not Defendant Poole) discontinued his pain
medications in retaliation because a nurse complained that he used abusive language against
him and instigated disciplinary actions. (Docket Entry 22 at 2-3.) Additionally, Defendant
Poole has asserted the defense of qualified immunity as to all claims against her. (See Answer
VIII, Docket Entry 34.) All of these things demonstrate that Plaintiff has not shown a
likelihood of success on the merits in his favor.4
Moreover, Plaintiff cannot show any irreparable harm because he is receiving pain
medications at Polk Correctional Institution where he is currently housed. (See Exhibit B,
Docket Entry 33-2 (noting pain medications prescribed on July 16, 2018).) Accordingly, there
is no hardship to Plaintiff now, let alone a balance of hardships that tips in Plaintiff’s favor.
Lastly, there is no showing that an injunction is in the public interest. The Supreme Court has

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It appears that Plaintiff’s first request for injunctive relief surrounds only his retaliation claim. Thus,
the undersigned will not address Plaintiff’s remaining claims in his Complaint.

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repeatedly stressed the need to provide wide-ranging deference to prison administrators in
matters of prison management. See Beard v. Banks, 548 U.S. 521, 528 (2006); Overton v. Bazzetta,
539 U.S. 126, 132 (2003) (“We must accord substantial deference to the professional judgment
of prison administrators, who bear a significant responsibility for defining the legitimate goals
of a corrections system and for determining the most appropriate means to accomplish
them.”). Because Plaintiff cannot establish all four Winter factors as to either request for
injunctive relief, the undersigned recommends that Plaintiff’s motions be denied.
2. Default Judgment/Setting Aside Entry of Default
Plaintiff seeks entry of default judgment against Defendant Anderson. (Docket Entry
28.) Defendant Anderson seeks the removal of entry of default against her, and for additional
time to answer the Complaint. (Docket Entry 38.) Pursuant to Federal Rule of Civil Procedure
55(b)(2), a court may enter a default judgment against a properly served defendant who fails to
plead or otherwise defend against the allegations in the complaint. Fed. R. Civ. P. 55(b)(2).
The Fourth Circuit has “repeatedly expressed a strong preference that, as a general matter,
defaults be avoided and that claims and defenses be disposed of on their merits.” Colleton
Preparatory Acad., Inc. v. Hoover Universal, Inc., 616 F.3d 413, 417 (4th Cir. 2010) (citing Tazco, Inc.
v. Director, Office of Workers Compensation Program, U.S. Dep’t of Labor, 895 F.2d 949, 950 (4th Cir.
1990)). “A court must ‘exercise sound judicial discretion’ in deciding whether to enter default
judgment, and ‘the moving party is not entitled to default judgment as a matter of
right.’” Reynolds Innovations, Inc. v. E-CigaretteDirect, LLC, 851 F. Supp. 2d 961, 962 (M.D.N.C.
2012) (citation omitted).

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Additionally, “[t]he Court may set aside an entry of default for good cause[.]” Fed. R.
Civ. P. 55(c). The Fourth Circuit has held that certain factors must be considered to determine
if there is “good cause” to set aside an entry of default: (1) whether the moving party has a
meritorious defense, (2) whether it acts with reasonable promptness, (3) the personal
responsibility of the defaulting party, (4) the prejudice to the party, (5) whether there is a
history of dilatory action, and (6) the availability of sanctions less drastic. Payne ex rel. Estate of
Calzada v. Brake, 439 F.3d 198, 204-05 (4th Cir. 2006). “Any doubts about whether relief
should be granted should be resolved in favor of setting aside the default so that the case may
be heard on the merits.” Tolson v. Hodge, 411 F.2d 123, 130 (4th Cir. 1969) (citation omitted).
Resolution of motions made under Rules 55(c) “is a matter which lies largely within the
discretion of the trial judge[.]” Consol. Masonry & Fireproofing, Inc. v. Wagman Const. Corp., 383
F.2d 249, 251 (4th Cir. 1967) (citation omitted).
Considering the factors in Payne, the Court concludes that Defendant Anderson’s
motion should be granted. Available to Defendant Anderson are several potential meritorious
defenses (e.g. Eleventh Amendment immunity and qualified immunity defenses). (Docket
Entry 40 at 4.) Also, Defendant Anderson acted reasonably in supplying the Complaint and
summons to her workplace superiors who told her that they would handle the matter.
(Anderson Aff. ¶¶ 3-4, Docket Entry 40-1.) She did not hear anything further about the case
for several months. (Id. ¶ 6.) In October 2018, after being informed that she needed to contact
counsel for the Department of Public Safety about representation in this action, Defendant
Anderson called Defendant Poole for more information. (Id. ¶ 7.) Thus, she acted with
reasonable promptness. The Court further notes that Plaintiff will not be prejudiced by the
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removal of the entry of default because of this action is still in its early stages and there has
been no history of dilatory action. Several Defendants have yet to be served and an answer to
Plaintiff’s complaint was only filed in October of 2018. (See Docket Entries 18, 34.) Thus,
these factors weigh in Defendant Anderson’s favor and entry of default should be set aside.
In accordance with this finding, the Court also finds that good cause exists to extend
the time for Defendant Anderson to answer the complaint. “When an act may or must be
done within a specified time, the court may, for good cause, extend the time . . . on motion
made after the time has expired if the party failed to act because of excusable neglect.” Fed.
R. Civ. P. 6(b); see also Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 392
(1993) (“[E]xcusable neglect under Rule 6(b) is a somewhat elastic concept and is not limited
strictly to omissions caused by circumstances beyond the control of the movant.” (internal
quotations omitted)). Defendant Anderson has demonstrated excusable neglect for failing to
timely answer the Complaint. Plaintiff will not be prejudiced by permitting Defendant
Anderson additional time to answer the serious claims of Plaintiff when several other
Defendants have not yet been served and when an answer from served Defendants was filed
a short time ago. (See Docket Entries 18, 34.) For those same reasons judicial proceedings
will not be greatly impacted by the extension.
CONCLUSION
For the reasons stated herein, IT IS HEREBY RECOMMENDED that Plaintiff’s
Motions for Preliminary Injunctions and Temporary Restraining Orders (Docket Entry 22,
35) be DENIED.

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IT IS FURTHER RECOMMENDED that Plaintiff’s Motion for Entry of Default
Judgment (Docket Entry 28) be DENIED and Defendant Anderson’s Motion to Remove
Default and Extend the Time to Answer (Docket Entry 38) be GRANTED.

_____________________________
Joe L. Webster
United States Magistrate Judge

December 3, 2018
Durham, North Carolina

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