Sherrod v. Harkleroad et al
ORDER granting 158 Motion for Relief from the Court's 7/20/2017, Order and Motion for the Court to Withdraw the Summons and Complaint Directed to John Morgan F.N.P. Please see Order for further instruction. Signed by District Judge Robert J. Conrad, Jr on 8/8/2017. (Pro se litigant served by US Mail.)(kby)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
MARION LAMONT SHERROD,
SID HARKLEROAD, et al.,
THIS MATTER comes before the Court on Plaintiff’s “Motion for Relief from Order and
Motion for Court to Withdraw the Summons and Complaint Directed to John Morgan, F.N.P.”
(Doc. No. 158); see (Doc. Nos. 156, 157). The motion will be granted.
Pro se Plaintiff Marion Lamont Sherrod filed the Complaint on February 20, 2012, alleging
claims related to deliberate indifference to his medical needs, intentional racial discrimination, and
violation of his right to send and receive mail. (Doc. No. 1). Following initial review by the Court,
the United States Marshals Service was ordered to serve Defendants Larry Bass, FNU Edwards,
Sid Harkleroad, Margaret Johnson, Patricia McEntire, John Morgan, and Stephen Shook. (Doc.
Defendant Morgan filed a motion to dismiss on June 21, 2012, arguing inter alia that the
Court lacks jurisdiction due to insufficient service of process and that Plaintiff failed to state a
facially sufficient claim for deliberate indifference to a serious medical need. (Doc. No. 24).
Plaintiff filed a response opposing dismissal. (Doc. No. 30). The Court granted Defendant
Morgan’s motion to dismiss on February 20, 2013, for failure to state a claim, and did not reach
the other arguments in favor of dismissal. (Doc. No. 58). Defendant Larry Bass’ motion to dismiss
or, alternatively, for judgment on the pleadings, (Doc. No. 98), was also granted. (Doc. No. 107).
The remaining Defendants – Harkleroad, Edwards, Shook, McEntire, and Johnson – filed
a motion for judgment on the pleadings. (Doc. Nos. 121, 122). Plaintiff filed a motion for summary
judgment, (Doc. No. 123), as well as motions for leave to file an amended complaint, (Doc. No.
124), and for judgment as a matter of law, (Doc. No. 130). In an Order entered March 30, 2016,
the Court granted Defendants’ motion for judgment on the pleadings and denied Plaintiff’s motions
for summary judgment, leave to amend, and judgment as a matter of law. (Doc. No. 132).
Plaintiff appealed the Court’s judgment in favor of Defendants and the Fourth Circuit
reversed. Sherrod v. Harkleroad, 674 Fed. Appx. 265 (4th Cir. 2017). It identified as Plaintiff’s
“primary claim” the allegation that, “despite notice to Defendants that he suffered from seizures,
he was housed in an upstairs cell in a top bunk and, as a result, he fell, seriously injuring himself;
he alleged this was evidence of an Eighth Amendment violation and deliberate indifference to his
serious medical needs.” (Id. at 266). It disagreed with the Court’s conclusion that the complaint
failed because Plaintiff “simply assumed in his complaint, without sufficient factual support, that
all of the Defendants had intimate knowledge about his seizure disorder.” (Id.). The Fourth Circuit
In his properly executed declaration, Sherrod alleged that medical provider
John Morgan and manager Patricia McEntire, both named Defendants, had
knowledge of his seizure disorder but failed to accommodate his disability, leading
to his serious injuries due to a fall. We make no finding as to whether Sherrod
ultimately may prove an Eighth Amendment violation against the Defendants, see
Estelle v. Gamble, 429 U.S. 97, 105-106 (1976); Iko v. Shreve, 535 F.3d 225, 23839 (4th Cir. 2008), but find that he alleged enough to survive the Defendants’
motion for judgment on the pleadings.
(Id. at 266-67). The Fourth Circuit accordingly vacated the judgment in Defendants’ favor and
remanded for proceedings consistent with its opinion. (Id.).
On remand, this Court issued an Order on July 20, 2017, that Defendant Morgan be
reinstated as a defendant and served with process in accordance with the Fourth Circuit’s mandate.
(Doc. No. 156). A summons was then issued electronically to the United States Marshals Service.
(Doc. No. 157). However, unbeknownst to the Court, Defendant Morgan had received clarification
from the Fourth District that “notwithstanding the mention of the claim against Morgan in our
opinion, the vacating of the district court’s March 30, 2016, order does not affect the dismissal of
Morgan as a party to this action.” (Doc. No. 159-2 at 2). On July 25, 2017, Defendant Morgan
filed a copy of the Fourth Circuit’s clarification order and moved the Court to correct its July 20,
2017, Order, (Doc. No. 156), and withdraw the summons, (Doc. No. 157).
In light of the Fourth Circuit’s order granting clarification, the Court withdraws the
portions of the July 20, 2017, Order directing the United States Marshals Service to serve
Defendant Morgan, and instructing the Clerk to reinstate the case against Defendant Morgan. See
Fed. R. Civ. P. 60(a). The remainder of the July 20, 2017, Order remains in effect.
IT IS, THEREFORE, ORDERED:
1. Plaintiff’s Motion for Relief from the Court’s July 20, 2017, Order and Motion for the
Court to Withdraw the Summons and Complaint Directed to John Morgan F.N.P.,
(Doc. No. 158), is GRANTED.
2. The portions of the Court’s July 20, 2017, Order, (Doc. No. 156), reinstating John
Morgan as a defendant in this case and directing the United States Marshals Service to
personally serve him, are withdrawn.
3. The summons and complaint directed to John Morgan, (Doc. No. 157), are withdrawn.
4. The Clerk of Court is respectfully instructed to terminate John Morgan as a defendant
in this case.
Signed: Aug 8, 2017
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?