WONG et al v. GUILFORD COUNTY SHERIFF DEPARTMENT et al
Filing
66
MEMORANDUM OPINION AND ORDER that the Discovery Motion (Docket Entry 59 ) and Amendment Motion (Docket Entry 60 ) are DENIED. Signed by MAG/JUDGE L. PATRICK AULD on 1/29/2025. (cb)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
GERALD L. WONG and SUSAN H. WONG,
Plaintiffs,
v.
GUILFORD COUNTY SHERIFF
DEPARTMENT, et al.,
Defendants.
)
)
)
)
)
)
)
)
)
)
1:23cv223
MEMORANDUM OPINION AND ORDER
This case comes before the Court on (i) the “Motion to Amend
Pleadings and Join Guilford County N.C. and Deputy Steven Jenkins”
(Docket Entry 60)1 (the “Amendment Motion”) and (ii) the “Motion to
Compel Discovery from Guilford County N.C. Sheriff Dept.” (Docket
Entry 59) (the “Discovery Motion”).
For the reasons that follow,
the Court will deny the Amendment Motion and the Discovery Motion
(collectively, the “Motions”).2
1 For legibility reasons, this Opinion generally omits allcap, underscored, bold, highlighted, and/or italicized font in
quotations from the parties’ materials.
2 For the reasons stated in Deberry v. Davis, No 1:08cv582,
2010 WL 1610430, at *7 n.8 (M.D.N.C. Apr. 19, 2010), the
undersigned United States Magistrate Judge will enter an order,
rather than a recommendation, on the Amendment Motion. See also
Everett v. Prison Health Servs., 412 F. App’x 604, 605 & n.2 (4th
Cir. 2011) (treating motion to amend as nondispositive motion
subject to magistrate judge’s order). The undersigned similarly
may enter an order as to the Discovery Motion. See Escalante v.
Anderson Cnty. Sheriff’s Dep’t, 698 F. App’x 754, 755 (4th Cir.
2017) (same re discovery motion).
BACKGROUND
Alleging a claim under “Title 42 U.S.C. 1983” for “[u]nlawful
search and seizure” (Docket Entry 1 at 3),3 Gerald L. Wong (the
“Plaintiff”) and Susan H. Wong (collectively, the “Plaintiffs”)
sued various defendants, including the Guilford County Sheriff’s
Department (the “Sheriff’s Department”), “James John Winiarski,” a
“Former Guilford County Deputy,” “S. Jenkins,” a “Guilford County
Deputy” (id. at 2-3), and “Guilford County Sheriff Danny H. Rogers”
(Docket Entry 3 (the “Amended Complaint”) at 2).4
Prior to
initiation of discovery, the parties filed multiple motions to
dismiss and for summary judgment and Plaintiff additionally moved
to
compel
discovery.
(See,
e.g.,
Docket
Entry
39
(the
“Recommendation”) at 1-8 (detailing procedural background).)
As relevant to the Motions, the Recommendation explained that
Plaintiffs’ claim against the Sheriff’s Department failed as a
matter of law because “the Sheriff’s Department is not a legal
entity subject to suit under the law of North Carolina.”
21
(brackets
and
internal
quotation
marks
omitted).)
(Id. at
The
Recommendation further observed that Plaintiffs’ official-capacity
claims failed because, inter alia, “the Amended Complaint contains
3 Docket Entry page citations utilize the CM/ECF footer’s
pagination.
4 Plaintiffs sued Deputies Winiarski and Jenkins in their
individual capacities and all remaining defendants in their
official capacities. (See Docket Entry 39 at 2-3 & n.3.)
2
no facts suggesting that ‘the commanders’ acted pursuant to any
official policy or custom in making [the challenged] determination,
as required for a viable official-capacity claim” (id. at 23
(citation
omitted)),
and
“the
commanders’
post-incident
determinations regarding the propriety of the deputies’ actions in
arresting [Plaintiff] did not cause the allegedly unlawful arrest”
(id. (emphasis in original)).
The Recommendation then concluded
that “qualified immunity shields Deputy Jenkins from Plaintiffs’
claim that he arrested [Plaintiff] without probable cause.”
at 39.)
(Id.
In this regard, the Recommendation explained that, given
the allegations in the Amended Complaint and video footage of the
incident, “Deputy Jenkins’ decision to assist Deputy Winiarski was
objectively reasonable in light of the circumstances and existing
law.”
(Id. (internal quotation marks and brackets omitted).)
Accordingly, the Recommendation advised that the Court dismiss all
claims other than Plaintiff’s “claim against Deputy Winiarski for
arrest without probable cause.”
(Id. at 40.)
As for Plaintiff’s motion for discovery, the Recommendation
explained that “the parties have not yet engaged in a conference
under Rule 26(f) of the Federal Rules of Civil Procedure (the
‘Rules’) and the Court has not yet entered a Rule 26(f) case
management order, so discovery in this case has not commenced.”
(Id.
at
8
(internal
quotation
marks,
citation,
and
brackets
omitted); see also id. at 10 (“[T]he parties have not yet begun
3
discovery.”).)
The Recommendation further noted that, under this
Court’s Local Rules, “[d]iscovery shall not commence until entry of
the scheduling order.”
omitted).)
(Id. at 10 (internal quotation marks
The Recommendation thus denied Plaintiff’s motion for
discovery as premature.
(See id. at 39-40; accord id. at 12.)
Notably, in addressing the various motions, the Recommendation
reiterated the importance of the Rules and Local Rules.
e.g., id. at 11-12.)
(See,
Of particular relevance, the Recommendation
explained that the prerequisites for any motion to compel discovery
“include a [Rule 37(a)] certification that the movant has in good
faith conferred or attempted to confer with the person or party
failing to make disclosure or discovery in an effort to obtain it
without court action.”
(Id. at 12 n.6 (internal quotation marks
omitted).)
The Recommendation further emphasized that plaintiffs
“may
simply
not
add
allegations
to
their
already
existing
complaint,” but instead “must submit a proposed amended complaint
that contains all claims they intend to bring in this action
against all the defendants they intend to sue.”
(Id. at 24
(internal quotation marks and brackets omitted); see also id.
(explaining that “plaintiffs may not amend their complaint in
piecemeal
omitted)).)
fashion”
(internal
quotation
marks
and
brackets
As such, the Recommendation noted, “a plaintiff is
bound by the allegations contained in his complaint and cannot,
4
through the use of motion briefs, amend the complaint.”
(Id. at 23
(internal quotation marks and brackets omitted).)
Plaintiff objected to the Recommendation.
41.)
In
his
objections,
Plaintiff
(See Docket Entry
indicated
that
he
“ha[d]
recently obtained data from” certain open records requests “that
list nearly 500 reports of use of force in the last two years by
the
Sheriff[’s]
Dep[artment]
‘[u]njustified.’”
(Id. at 3.)
figures
defy
reality
and
in
which
the
Court
5
therefor[e]
(per
manifest
deemed
deliberate
(Id.)
United
States
District
William L. Osteen, Jr.) adopted the Recommendation.
43 at 2.)
were
Per Plaintiff, “these types of
indifference to the rights of citizens.”
Thereafter,
only
Judge
(Docket Entry
Accordingly, the Court dismissed all claims other than
Plaintiff’s “claim against Deputy Winiarski for arrest without
probable cause,” which the Court allowed to proceed.
(Id. at 3.)
The following day, the Clerk scheduled a pretrial conference for
late March, nearly two months away.
“Notice”) at 1.)
(See Docket Entry 44 (the
Nevertheless, a mere five days later, Plaintiff
filed a motion to compel discovery, without the required Rule 37(a)
certification.
undersigned
(See Docket Entry 45 at 1-3.)
United
States
Magistrate
Judge)
The Court (per the
summarily
denied
without prejudice Plaintiff’s motion, “pursuant to Local Rule
7.3(k), for failure to comply with the briefing requirement under
5
Local Rule 7.3(a) and (j).”
(Text Order dated Feb. 7, 2024.)
Of
particular note, the Court
elected to exercise its discretion to summarily deny
[that m]otion because, in addition to Plaintiff’s failure
to file the r[e]quired brief, Plaintiff must, in the
first instance, seek discovery from the remaining
[d]efendant and/or via subpoenas to non-parties (not by
motion to the Court) and Plaintiff generally must wait to
pursue such discovery until after the Court enters a
scheduling order (which will not occur until after the
Court
receives
the
parties’
initial
pretrial
conference-related filings as directed in [the] Notice
and, if necessary, conducts the initial pretrial
conference as set in [the] Notice).
(Id.)
The remaining parties subsequently engaged in the initial
pretrial conference (see Minute Entry dated Mar. 25, 2024), and the
Court entered a scheduling order, which established May 23, 2024,
as the deadline for requesting leave to amend pleadings or add
parties (see Text Order dated Mar. 25, 2024). Plaintiff thereafter
filed a motion requesting permission to bring certain electronics
into the courthouse.
(Docket Entry 58 at 1.)
The Court
den[ied] without prejudice [that m]otion, which seeks
leave for Plaintiff “to bring his personal smart phone
which is used to monitor health conditions as well as
regular other smart phone functions and cell phone into
the courthouse for the duration of the above action.”
Plaintiff did not file a brief in support of [the
m]otion. “All motions, unless made during a hearing or
at trial, . . . shall be accompanied by a brief except as
provided in section (j) of [Local R]ule [7.3].” M.D.N.C.
LR 7.3(a). The cross-referenced section does not list
motions seeking the relief sought in [the m]otion as
exempt from the briefing requirement. See M.D.N.C. LR
7.3(j). “A motion unaccompanied by a required brief may,
in the discretion of the Court, be summarily denied.”
M.D.N.C. LR 7.3(k).
In this instance, the Court
6
exercises its discretion to summarily deny [the m]otion,
because Plaintiff not only failed to file the required
brief, but also failed to include the material elements
of a brief in [the m]otion (as provided under Local Rule
7.2(a)). Indeed, [the m]otion does not even comply with
the requirements for motions exempt from briefing,
including to “state good cause [for the relief requested]
and cite any applicable rule, statute, or other authority
justifying the relief sought.” M.D.N.C. LR 7.3(j); see
also M.D.N.C. LR 7.3(b) (requiring all motions to “cite
any statute or rule of procedure relied upon”).
In
deference to Plaintiff’s status as a pro se litigant, the
Court has denied [the m]otion without prejudice; however,
that status does not entitle Plaintiff to exemption from
the Local Rules (or other applicable rules) and Plaintiff
should understand that, moving forward, the Court will
enforce all applicable rules without any special
dispensation for his pro se status.
(Text Order dated Apr. 30, 2024 (underscoring added) (ellipsis and
certain brackets in original).)
Meanwhile, the sole remaining defendant, Deputy Winiarski,
moved for judgment on the pleadings (see Docket Entry 47), which
motion
Plaintiff
opposed
(see
Docket
Entry
50).
Plaintiff
subsequently filed the Discovery Motion, which seeks “an order
compelling discovery from the [Sheriff’s Department] pursuant to
public information under § 132-1.”
(Docket Entry 59 at 1.)
Shortly thereafter, on May 6, 2024, Plaintiff filed the Amendment
Motion, seeking
to join Guilford County (as Respondeat Superior) and
Deputy Steven Jenkins due to new evidence (in his
individual capacity) as a [d]efendant in these 42 USC
1983 cases [sic] under the same conditions for my
unlawful arrest that remain at issue as stated in the
Cause of [A]ction description and the erroneously charged
action of the [S]heriff[’s D]ep[artment].
7
(Docket Entry 60 at 4.)
Three days later, however, Plaintiff and
Deputy Winiarski filed a stipulation of dismissal with prejudice of
“all claims brought by Plaintiff in this action against [Deputy]
Winiarski” (Docket Entry 61 at 1), triggering the termination of
the action in this Court’s CM/ECF System.
Nevertheless, given the
pendency of the Amendment Motion, the Court has not yet entered a
judgment in this matter.
(See Docket Entries dated May 9, 2024, to
present.)
The
Sheriff’s
Department
responded
in
opposition
to
the
Discovery Motion (see Docket Entry 62) (the “Discovery Opposition”)
and Guilford County and Deputy Jenkins filed a joint opposition to
the
Amendment
Opposition”).
Motion
(see
Plaintiff
Docket
failed
Entry
to
63)
reply
(the
“Amendment
the
Discovery
to
Opposition (see Docket Entries dated May 13, 2024, to present), but
filed a “respon[se] to [the Amendment O]pposition” (Docket Entry 64
(the “Reply”) at 1).
In the Reply, “Plaintiff now requests” that,
inter alia, “[s]hould Guilford County N.C. can not [sic] be held as
Respondeat Superior then Plaintiff asks that Sheriff Danny Rogers
be
held as
Plaintiff
Respondeat
believes
Superior
other
in
defendants
his
official
were
not
capacity,
formerly
discharged from Plaintiff[’]s Amended Complaint.”
as
[sic]
(Id. at 2.)
Plaintiff concludes the Reply by asking that the Court allow “this
action to continue based on the same facts as laid out in [three
separate sections of his Amendment Motion].”
8
(Id. at 3.)
DISCUSSION
I. The Amendment Motion
A. Relevant Standards
At the time that he filed the Amendment Motion, Plaintiff
could amend his pleadings “only with the opposing party’s written
consent or the [C]ourt’s leave.”
Fed. R. Civ. P. 15(a)(2).
Under
Rule 15(a), “leave to amend a pleading should be denied” when,
inter alia, “the amendment would have been futile.”
Laber v.
Harvey, 438 F.3d 404, 426 (4th Cir. 2006) (en banc) (internal
quotation marks omitted); see also Foman v. Davis, 371 U.S. 178,
182 (1962) (identifying “futility of amendment” as basis for
denying leave to amend).
“Futility is apparent if the proposed
amended complaint fails to state a claim under the applicable rules
and accompanying standards.”
Katyle v. Penn Nat’l Gaming, Inc.,
637 F.3d 462, 471 (4th Cir. 2011).
Accordingly, a proposed
amendment fails for futility if it could not survive a Rule
12(b)(6) motion to dismiss.
See Smith v. Bank of the Carolinas,
No. 1:11cv1139, 2012 WL 4848993, at *3 (M.D.N.C. Oct. 11, 2012)
(citing United States ex rel. Wilson v. Kellogg Brown & Root, Inc.,
525 F.3d 370, 376 (4th Cir. 2008)).
B. Analysis
As an initial matter, despite repeated warnings, Plaintiff
failed to comply with the requirements for seeking leave to amend,
and amending, a pleading.
For instance, this Court’s Local Rules
9
obliged Plaintiff to “attach [his] proposed amended pleading to the
[Amendment M]otion.”
M.D.N.C. LR 15.1.
(See generally Docket Entry 60.)
Plaintiff did not do so.
Moreover, as the Court has
already explained, a party cannot amend its pleadings either
“through the use of motion briefs” (Docket Entry 39 at 23 (internal
quotation marks omitted)) or “in piecemeal fashion” (id. at 24
(internal quotation marks omitted)).
Amendment
Motion
and
Reply,
Nevertheless, between the
Plaintiff
expanded
his
requested
amendment to include the (re)introduction of a third defendant,
Sheriff Rogers. (Compare Docket Entry 60 (proposing claims against
Guilford
County
and
Deputy
Jenkins),
with
Docket
Entry
64
(proposing additional alternative claim against Sheriff Rogers).)
These failures alone justify denial of the Amendment Motion.
See,
e.g., M.D.N.C. LR 83.4(a) (authorizing sanctions, including “an
order striking” filing, for failure to comply with Local Rules).
In
addition,
futile.
Plaintiff’s
proposed
amendments
qualify
as
Plaintiff seeks to reinstate his claim against Deputy
Jenkins based on the purportedly newly discovered evidence that
Deputy Jenkins (i) stated in his incident report that he placed
Plaintiff
under
arrest
and
(ii)
“never
stated
that
he
heard
[Deputy] Winiarski say [Plaintiff] was under arrest,” which, in
Plaintiff’s view, means that Deputy Jenkins “therefore was not
assisting with the arrest but making the arrest” (Docket Entry 60
at 5).
(See id.)
Plaintiff included the relevant incident report
10
with his Amendment Motion.
(See id. at 14.)5
Notably, the
information in the Amendment Motion and incident report aligns with
information in an affidavit that Deputy Jenkins filed in this
matter more than ten months before Plaintiff filed the Amendment
Motion (see Docket Entry 26-3 at 2-3), belying any description as
newly discovered.
Regardless, the purportedly newly discovered
evidence does not change the conclusion that “Deputy Jenkins’
decision to assist Deputy Winiarski was objectively reasonable in
light
of
the
circumstances
and
existing
law”
and
thus
that
“qualified immunity shields Deputy Jenkins from Plaintiffs’ claim
that he arrested [Plaintiff] without probable cause.”
(Docket
Entry 39 at 39 (internal quotation marks and brackets omitted); see
5
Per the incident report:
[o]n Friday 12/02/2022 at approximately 0955 hours,
[Deputy Jenkins] responded to assist Deputy Win[i]arski
on the Plaza Level Lobby at the Greensboro Courthouse
with a subject who was refusing to leave. Upon arrival
Deputy Win[i]arski was repeatedly giving instructions to
a male subject to leave. After making [his] way through
the rope barricades[, Deputy Jenkins] walked through the
door at the entrance. [Deputy Jenkins] observed Deputy
Win[i]arski requesting identification from the subject
numerous times.
The subject refused to provide
identification.
Deputy Win[i]arski reached into the
plastic basket to get his identification. At this time
the subject shoved [Deputy] Win[i]arski in his chest
area.
[Deputy Jenkins] told the subject that he was
under arrest and he immediately began resisting arrest by
struggling, pulling away and refusing to place his hands
behind his back. . . .
(Id. (underscoring added).)
11
id. at 27-40 (analyzing claim and recommending its dismissal under
Rule 12(b)(6)).)
Plaintiff similarly tries to revive his official-capacity
claims, based largely on “ha[ving] received documents though [sic]
the open records web site of data concerning ‘Justifiable’ uses of
force,” which reveal a very small percentage of cases “were deemed
‘unjustified[,’]”
unbelievable.”
evidence
which
regarding
as
[Plaintiff]
is
incredibly
(Docket Entry 60 at 6.) As with the ostensibly new
officers classified
incidents
“[t]o
Deputy
only
Jenkins,
a
“unjustified”
small
does
information
showing
that
of
use
of
force
constitute
new
evidence.
percentage
not
(See Docket Entry 41 at 3 (confirming Plaintiff’s prior knowledge
of
that
information).)
Moreover,
as
the
Court
has
already
explained, any post-incident classification of the relevant use of
force
as
justified
rather
than
unjustified
did
not
cause
Plaintiff’s arrest and thus would not “mak[e] Guilford County
complicate [sic] to the violation of [Plaintiff’s] civil rights”
(Docket Entry 60 at 6), necessitating dismissal of any such claim.
(See
Docket
post-incident
Entry
39
at
determinations
23
(“[B]ecause
regarding
the
the
commanders’
propriety
of
the
deputies’ actions in arresting [Plaintiff] did not cause the
allegedly unlawful arrest, Plaintiffs lack a viable Section 1983
claim against those officials.” (emphasis omitted)).)
12
In addition, Plaintiff seeks to add Guilford County and/or
Sheriff Rogers to this lawsuit based on theories of respondeat
superior.
(See, e.g., Docket Entry 60 at 4; Docket Entry 64 at 2.)
However, “theories of respondeat superior or predicated solely on
a defendant’s identity as a supervisor . . . do not exist in
actions under [Section] 1983.”
Allen v. Brooks, Pierce, McLendon,
Humphrey & Leonard, LLP, No. 1:20cv1173, 2021 WL 1617303, at *2
(M.D.N.C. Apr. 13, 2021), report and recommendation adopted, No.
1:20cv1173, 2021 WL 1616176 (M.D.N.C. Apr. 26, 2021), aff’d, 857 F.
App’x 124 (4th Cir. 2021); see also Ashcroft v. Iqbal, 556 U.S.
662, 677 (2009).
Further, Plaintiff’s request to add Guilford
County “as a defendant being the employer of the Sheriff[’s]
Department” (Docket Entry 60 at 4) misses the mark.
“In North
Carolina, the Office of Sheriff is a legal entity, established by
the state constitution and state statutes, separate and distinct
from the Board of County Commissioners because a sheriff is elected
by the people, not employed by the county.”
F. Supp. 2d 437, 446 (W.D.N.C. 2000).
Little v. Smith, 114
“Thus, it is Sheriff
[Rogers], not [Guilford] County, who has the final decision making
authority over law enforcement policies of his office.”
Id.; see
also N.C. Gen. Stat. § 153A-103(1) (“Each sheriff . . . elected by
the
people
has
the
exclusive
right
to
supervise the employees in his office.”).
13
hire,
discharge,
and
In sum, Plaintiff’s Amendment Motion violates this Court’s
Local Rules and his proposed claims qualify as futile.
The Court
will therefore deny the Amendment Motion.
II. The Discovery Motion
Despite repeated reminders regarding his obligation under this
Court’s Local Rules to file supporting briefs (see Text Orders
dated Feb. 7, 2024, and Apr. 30, 2024), Plaintiff failed to file a
brief in support of the Discovery Motion (see generally Docket
Entry 59).
requests
Plaintiff also failed to file the relevant discovery
(see
id.),
in
contravention
of
Local
Rule
26.1.
See M.D.N.C. LR 26.1(b)(3) (“Any party seeking to compel discovery
. . . must identify the specific portion of the material which is
directly relevant and ensure that it is filed as an attachment to
the application for relief.”).
Similarly, notwithstanding the
Court’s
the
prior
recognition
of
necessity
of
Rule
37
certifications (see Docket Entry 39 at 12 n.6), Plaintiff failed to
include a Rule 37 Certification in the Discovery Motion.
Docket Entry 59 at 1-5.)
(See
Per Local Rule 37.1,
[t]he Court will not consider motions and objections
relating to discovery unless [the movant] files a
certificate that after personal consultation and diligent
attempts to resolve differences the parties are unable to
reach an accord. The certificate shall set forth the
date of the conference, the names of the participating
[individuals], and the specific results achieved.
M.D.N.C. LR 37.1(a) (underscoring added).
Given these (repeated)
failures, and the explicit warning to Plaintiff “that, moving
14
forward, the Court w[ould] enforce all applicable rules without any
special dispensation for his pro se status” (Text Order dated Apr.
30, 2024), the Court will deny the Discovery Motion.
See M.D.N.C.
LR 83.4(a).6
CONCLUSION
Despite repeated warnings, Plaintiff failed to comply with the
Rules and Local Rules in bringing the Motions, and his proposed
amendments also qualify as futile.
IT IS THEREFORE ORDERED that the Discovery Motion (Docket
Entry 59) and Amendment Motion (Docket Entry 60) are DENIED.
This 29th day of January, 2025.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
6 In any event, given the denial of the Amendment Motion and
Plaintiff’s dismissal of all claims against Deputy Winiarski, the
sole remaining defendant, the Discovery Motion qualifies as moot.
See, e.g., Hubbell Inc. v. DMF, Inc., Civ. Action No. 6:11-794,
2013 WL 152641, at *5-6 (D.S.C. Jan. 15, 2013) (concluding that
granting dismissal motion moots motion to compel); see also, e.g.,
Asbury v. Tartarsky, No. 8:13cv3364, 2015 WL 1120081, at *19 & n.23
(D.S.C. Mar. 12, 2015) (explaining that granting summary judgment
would terminate action, mooting pending discovery motions), aff’d,
616 F. App’x 71 (4th Cir. 2015).
15
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