P.B. v. Burke County Public Schools Board of Education et al

Filing 32

ORDER denying #31 Motion for Order Regarding Release of Burke County District Attorney's Office Investigation Records. Signed by Magistrate Judge Dennis Howell on 5/14/13. (Pro se litigant Michael Andrew Alexander served by US Mail) and (James C. Gather, Jr., D.A., Burke County Courthouse, 201 S. Greene St., Morganton, NC 28655 served with a copy of this Order and Pltf's #31 motion by US Mail as instructed.)(ejb)

IN THE UNITED STATES DISTRICT COURT FOR
THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
1:12 CV 334

P.B., as lawful Guardian ad litem of
Minor Child, JANE DOE,

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Plaintiff
v
BURKE COUNTY PUBLIC SCHOOLS
BOARD OF EDUCATION, LINDA
BRADSHAW, JOHN ROES 1-10, and
MICHAEL ANDREW ALEXANDER,
Defendants

ORDER

THIS MATTER has come before the undersigned pursuant to a Motion for
Order Regarding Release of Burke County District Attorney’s Office Investigation
Records (#31) filed by Plaintiff. In the motion the Plaintiff asked that this Court
issue an order directing the Burke County District Attorney to release to Plaintiff’s
counsel records which are described only as Burke County District Attorney Office
Investigation Records.
Discussion: An examination of the motion of the Plaintiff shows that the
motion should be denied for the following reasons:
(1)

The motion of the Plaintiff is not supported by a brief as required by

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LCvR 7.2(C). The motion does reference a case issued by the Supreme
Court of North Carolina News and Observer Publishing Company v. State
ex rel. Starling, 312 N.C. 276, 322 S.E.2d 133 (1984) but a reading of that
case does not show any support whatsoever for the motion of Plaintiff;
(2)

If the Plaintiff seeks the documents of a person or entity who is not a party
in this case, the Plaintiff would be well advised to first consult Rules 45 and
30 of the Federal Rules of Civil Procedure. The application of those rules
would appear to this Court to be the appropriate procedure for the Plaintiff to
use to seek the production of the records of a third party. Those rules would
allow the District Attorney to present any objections that the District
Attorney might have to the Plaintiff’s requests and for those objections to be
heard by the court.

(3)

The motion of the Plaintiff does not show there has been any service of the
Plaintiff’s motion upon the represented Defendants or Michael Andrew
Alexander who is representing himself in this matter and more importantly
does not show there has been any service or notice of the Plaintiff’s motion
served upon the Burke County District Attorney.

It appears from an

examination of the motion that the Plaintiff has completely failed to comply
with the service provisions of Rule 5 of the Federal Rules of Civil Procedure

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which reads as follows:
Rule 5. Serving and Filing Pleadings and Other Papers
(a)

Service: When Required.
(1) In General. Unless these rules provide otherwise, each of
the following papers must be served on every party:
(D)

a written motion, except one that may be heard ex parte.

It appears to this Court that the Plaintiff is attempting to obtain a court order
directing a third party who is an elected public official to distribute what would be
that public official’s confidential investigative records and files without providing
the third party an opportunity to object or to be heard by the court.
For the foregoing reasons the Plaintiff’s motion will be denied.
ORDER
IT IS, THEREFORE, ORDERED that the Motion for Order Regarding
Release of Burke County District Attorney’s Office Investigation Records (#31) is
hereby DENIED. It is also ORDERED that the Clerk of this Court shall provide a
copy of this Order and the Plaintiff’s motion to James C. Gather, Jr., District
Attorney, Burke County Courthouse, 201 S. Greene Street, Morganton, NC 28655
and to the Defendant Michael Andrew Alexander.

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Signed: May 14, 2013

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