Wilcoxson v. Buncombe County et al

Filing 33

ORDER granting in part but only to the extent that the Court clarifies the scope of the stay imposed by Magistrate Judge Cayer as stated herein. In all other respects, the Plaintiff's Motion to Lift Stay 32 is DENIED. IT IS FURTHER ORDERED that the Plaintiff shall show good cause within 14 days of service of this Order for the failure to effect service on the John Doe Defendants identified in the Complaint. Failure of the Plaintiff to respond in writing within 14 days shall result in a dismissal without prejudice of these Defendants without further Order of the Court. Signed by District Judge Martin Reidinger on 07/03/2014. (thh)

THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:13-cv-00224-MR-DSC
ROBERT WILCOXSON,

)
)
Plaintiff,
)
)
vs.
)
)
)
BUNCOMBE COUNTY, et al.,
)
)
Defendants.
)
________________________________)

ORDER

THIS MATTER is before the Court on the Plaintiff’s Motion to Lift Stay
and to Allow Discovery to Commence [Doc. 32].
On August 9, 2013, the Plaintiff filed this action pursuant to 42 U.S.C.
§ 1983 against Defendants Sam Constance, George Sprinkle, Michael
Murphy and John Elkins in their individual capacities, and against
Defendant Bobby Medford, in both his individual and official capacities. In
addition, the Plaintiff asserted a Monell claim against Buncombe County,
and claims against various unknown investigators, supervisors and
policymakers in their individual and official capacities (“John Doe
Defendants”).
On November 1, 2013, Defendants Medford, Constance, Sprinkle,

Murphy and Elkins filed answers to the Complaint, and Defendant
Buncombe County filed a motion to dismiss the Monell claim brought
against it as a municipal entity. [Doc. 16].
On January 6, 2014, Magistrate Judge Cayer issued a Memorandum
and Recommendation recommending that Buncombe County’s motion to
dismiss be granted. [Doc. 29]. Judge Cayer further ordered that “all further
proceedings in this action related to Defendant Buncombe County,
including all discovery, are stayed pending the District Judge’s ruling on
this Memorandum and Recommendation and Order.” [Id. at 4 (emphasis
added)].

The

Plaintiff

has objected to the Memorandum and

Recommendation, and that objection is currently under advisement with the
undersigned. [Doc. 30].
In March 2014, counsel for the Plaintiff requested that the
Defendants’ counsel confer with each other and with the Plaintiff to
establish a proposed discovery plan. Defendants’ counsel apparently have
taken the position that the stay of discovery imposed by Judge Cayer
applies to all Defendants, not just Defendant Buncombe County, and thus
precludes taking any steps, including conferring on a discovery plan, until
the motion to dismiss is decided and the stay is lifted.

The Plaintiff

therefore moves the Court to lift the stay of discovery entered by Judge
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Cayer and allow discovery in this matter to commence. Alternatively, the
Plaintiff moves the Court to clarify or narrow the scope of the stay in order
to allow the parties to confer about a discovery schedule, commence
written discovery, and commence the deposition of the individual parties to
the action. [Doc. 32].
While the Court declines to lift the stay imposed by Judge Cayer, the
Court will clarify its scope. The stay imposed by Judge Cayer clearly
applies only to discovery related to Defendant Buncombe County and
therefore does not preclude the Plaintiff and the individual Defendants from
commencing discovery on the claims pertaining to them.
The Court further notes that the Plaintiff has not identified or served
any of the “John Doe” Defendants named in the Complaint. Rule 4(m) of
the Federal Rules of Civil Procedure provides, in pertinent part, as follows:
If a defendant is not served within 120 days after
the complaint is filed, the court – on motion or on its
own after notice to the plaintiff – must dismiss the
action without prejudice against that defendant or
order that service be made within a specified time.
But if the plaintiff shows good cause for the failure,
the court must extend the time for service for an
appropriate period.
Fed. R. Civ. P. 4(m).

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The Plaintiff is hereby placed on notice that unless good cause is
shown to the Court for his failure to effect service of the Summons and
Second Amended Complaint on the John Doe Defendants, the Plaintiff’s
claims against these Defendants shall be dismissed without prejudice
without further order.
ORDER
IT IS, THEREFORE, ORDERED that the Plaintiff’s Motion to Lift Stay
and to Allow Discovery to Commence [Doc. 32] is GRANTED IN PART, but
only to the extent that the Court clarifies the scope of the stay imposed by
Magistrate Judge Cayer as stated herein.

In all other respects, the

Plaintiff’s Motion [Doc. 32] is DENIED.
IT IS FURTHER ORDERED that the Plaintiff shall show good cause
within fourteen (14) days of service of this Order for the failure to effect
service on the John Doe Defendants identified in the Complaint. Failure of
the Plaintiff to respond in writing within fourteen (14) days shall result in a
dismissal without prejudice of these Defendants without further Order of the
Court.

Signed: July 3, 2014

IT IS SO ORDERED.

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