Ross v. Conner et al

Filing 95

ORDER denying 82 Motion for Leave to File an Amended Complaint, denying 87 Motion to Compel and Motion in Opposition to Defendants' Motion Allowing Prison Deposition and denying 92 Motion Requesting Extension of Time for Discovery. See Order for further instruction. Signed by Chief Judge Frank D. Whitney on 7/17/2015. (Pro se litigant served by US Mail.)(klb)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
1:14-cv-98-FDW
TERRENCE JAVARR ROSS,

)
)
Plaintiff,
)
)
vs.
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)
RANDY CONNER, et al.,
)
)
Defendants.
)
__________________________________________)

ORDER

THIS MATTER comes before the Court on the following motions by Plaintiff:
Plaintiff’s Motions of Compel, (Doc. Nos. 74; 78; 84; 85; and 87), Plaintiff’s Motion for Leave
to File an Amended Complaint, (Doc. No. 82), and Plaintiff’s Motion for Extension of Time to
Conduct Discovery, (Doc. No. 92).
1. Plaintiff’s Motion to Amend the Complaint, (Doc. No. 82)
Plaintiff filed this action on April 21, 2014, pursuant to 42 U.S.C. § 1983, alleging that,
in an incident occurring in May 2013, Defendants Conner, Mason, and Piercy assaulted and used
excessive force against Plaintiff while Conner was attempting to obtain DNA evidence from
Plaintiff’s person at the Cleveland County Jail. On October 15, 2014, this Court conducted an
initial review and dismissed several Defendants. On March 24, 2015, this Court entered a
scheduling order, setting the deadline for discovery as July 22, 2015, with dispositive motions
due by August 22, 2015. On May 4, 2015, Plaintiff filed the pending motion to amend his
Complaint. Plaintiff seeks to amend his Complaint to add as a Defendant FNU Stearnes,
identified as a Lieutenant with the Cleveland County Sheriff’s Department. Furthermore,
although Cleveland County Sheriff’s Department Captain Derwin Briscoe has already been
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dismissed as a Defendant in this action, Plaintiff seeks to again name Briscoe as a Defendant.
Plaintiff seeks to amend the Complaint to allege a claim against both Briscoe and Stearns for a
violation of Plaintiff’s due process rights based on their refusal to allow Plaintiff to “press
charges” against Defendants Conner, Mason, and Piercy based on their alleged assault on
Plaintiff.
Leave to amend should be “freely give[n] . . . when justice so requires.” FED. R. CIV. P.
15. However, “a district court has discretion to deny a motion to amend a complaint, so long as
it does not outright refuse ‘to grant the leave without any justifying reason.’” Equal Rights Ctr.
v. Niles Bolton Assocs., 602 F.3d 597, 603 (4th Cir. 2010) (citing Foman v. Davis, 371 U.S. 178,
182 (1962)). A district court may deny a motion to amend when the amendment would be
prejudicial to the opposing party, the moving party has acted in bad faith, or the amendment
would be futile. Id.
The Court will deny Plaintiff’s motion to amend the Complaint because any such
amendment would be futile. To state a Section 1983 claim for a deprivation of procedural due
process, plaintiff must allege that: (1) he was deprived of an individual interest that is
encompassed within the Fourteenth Amendment's protection of life, liberty or property; and (2)
the procedures available did not provide due process of law. Alvin v. Suzuki, 227 F.3d 107, 116
(3d Cir. 2000). Procedural due process does not protect every benefit; rather, to have a property
interest in a benefit, a person must clearly have more than an abstract need or desire and more
than a unilateral expectation of receiving the benefit. Town of Castle Rock, Colorado v.
Gonzales, 545 U.S. 748, 756 (2005). “The first inquiry in every due process challenge is
whether the plaintiff has been deprived of a protected interest in ‘property’ or ‘liberty’.” Am.
Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 59 (1999). Only then should a court consider

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whether the state's procedures comport with due process. Id. The claimant must have a
legitimate claim of an “entitlement.” Id. Entitlements, however, are not established by the
Constitution; rather, they are created and defined by existing rules or understandings that stem
from an independent source, such as state law. Id.; see also Unger v. Nat’l Residents Matching
Program, 928 F.2d 1392, 1397 (3d Cir. 1991). A claimant must show an entitlement to a
property interest created by a state statute or regulation or arising from government policy or a
mutually explicit understanding. Carter v. City of Philadelphia, 989 F.2d 117, 120 (3d Cir.
1993); see Baraka v. McGreevey, 481 F.3d 187, 206 (3d Cir. 2007); Rogers v. Bucks Cnty.
Domestic Relations Section, 959 F.2d 1268, 1274 (3d Cir. 1992).
The Supreme Court has recognized that a benefit is not a protected entitlement if
government officials may grant or deny it in their discretion. Gonzales, 545 U.S. at 756 (citing
Kentucky Dep’t of Corrs. v. Thompson, 490 U.S. 454, 462-63 (1989)). Consistent with that, a
private citizen does not have a legal right to compel government officials to arrest or prosecute
another person. Gonzales, 545 U.S. at 767 n.13 (citing Linda R.S. v. Richard D., 410 U.S. 614,
619 (1973) (“[A] private citizen lacks a judicially cognizable interest in the prosecution or
nonprosecution of another.”)). Here, Plaintiff’s invocation of his “due process rights” seeks
relief based on the alleged decision by Briscoe and Stearns not to arrest or prosecute Defendants
Conner, Piercy, and Mason, which is not a cognizable entitlement to a property interest. As
such, Plaintiff fails to state a claim against Stearns and Briscoe for a violation of his due process
rights. Accord Richards v. Heyns, No. 1:14cv908, 2015 WL 1003117, at *10 (W.D. Mich. Mar.
6, 2015) (“It is well established that ‘[p]rivate citizens, whether or not they are prisoners, . . .
cannot compel a criminal investigation or prosecution against another.’ This is so because ‘a
private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of

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another.’ Thus, Officers Etue and Gorski did not violate any federal rights by failing to track or
respond to Plaintiff's complaints of criminal activity.”) (internal citations omitted); Odom v.
Thompson, Civil Action NO. 5:13cvP211-R, 2014 WL 3720675, at *7 (W.D. Ky. July 25, 2014)
(where the plaintiff complained that Defendants refused to allow him to press charges against
another inmate for attempted murder, finding that “Plaintiff cannot state a constitutional
violation under § 1983 for any party’s failure to initiate the arrest or prosecution of [the other
inmate]”); Earnest v. King, No. 2:11cv738, 2011 WL 5075380, at **2, 10-11 (W.D. Pa. Oct. 24,
2011) (holding that there was no due process violation where the plaintiff alleged that officers
refused to press charges against the person who allegedly assaulted the plaintiff). Because
allowing Plaintiff to amend the Complaint to add this claim would be futile, the Court will deny
Plaintiff’s motion to amend.
2. Plaintiff’s Motion to Compel and Motion in Opposition to Defendant’s Motion
Allowing Prison Deposition, (Doc. No. 87)
Next, in one of his motions to compel, titled a “Motion to Compel and Motion in
Opposition to Defendant’s Motion Allowing Prison Deposition,” Plaintiff notes that Defendants
filed a motion seeking an order from the Court allowing Defendants to depose Plaintiff. Plaintiff
complains that if the Court allows Defendants Mason and Piercy to depose Plaintiff, then the
Court’s prior order staying discovery as to these two Defendants should no longer be in effect.
Plaintiff contends that it is unfair to allow Defendants to depose Plaintiff in prison, while at the
same time refusing to allow Plaintiff to engage these two Defendants in discovery before a ruling
on qualified immunity. The Court notes, however, that discovery has not been stayed as to
Defendant Conner, and Defendant Conner joined in the motion to depose Plaintiff. Defendant
Conner has been responding to Plaintiff’s discovery requests, and Defendant Conner has the

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right to depose Plaintiff. Thus, the Court is allowing the taking of Plaintiff’s deposition and the
stay of discovery as to Defendants Mason and Piercy will remain in place. To this extent, the
Court has granted Defendants’ motion to depose Plaintiff. See (Doc. No. 93). After Defendants
Mason and Piercy have filed a summary judgment motion asserting qualified immunity, the
Court will consider allowing Plaintiff to conduct discovery of these two Defendants before ruling
on such motion if the Court deems it equitable to all parties. To this extent, the Court denies
Plaintiff’s Motion to Compel and Motion in Opposition to Defendant’s Motion Allowing Prison
Deposition.
3. Plaintiff’s Motion for an Extension of Time to Conduct Discovery, (Doc. No. 92)
Next, the Court considers Plaintiff’s motion requesting an extension of time in which to
conduct discovery. In support of the motion, Plaintiff complains that Defendants have not
responded to Plaintiff’s discovery requests, and Plaintiff seeks an extension of the discovery
period to September 22, 2015, in order for Plaintiff “to receive and examine requested discovery
material.” The Court will deny Plaintiff’s motion, as the parties have had ample time in this
action in which to conduct relevant discovery. If the Court subsequently determines that
Defendants have not responded to any discovery requests to which Plaintiff is entitled, the Court
will expand the time for Plaintiff to receive discovery responses from Defendants, and the Court
will also entertain a motion by Plaintiff for an extension of time to respond to Defendants’
dispositive motions.
4. Plaintiff’s Remaining Motions to Compel, (Doc. Nos. 74, 78, 84, and 85)
Finally, the Court notes that, in four of his motions to compel filed with this Court,
Plaintiff seeks an order from the Court compelling the following discovery from Defendant
Conner: (1) originals or copies of any internal investigation concerning the incident on May 14,

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2013; any rules, regulations, and policies of the Shelby Police Department concerning the
extraction of DNA by force; all disciplinary reports and/or any reports involving misconduct
involving Defendant Conner; originals or copies of Defendant Conner’s personal cell phone
records for May 14, 2013, from 8:00 a.m. to 12:30 p.m.; list of all cases involving defendant
Conner and Plaintiff; any designated documents or electronically stored information concerning
the incident on May 14, 2013, between Defendant Conner and Plaintiff, (Doc. No. 84); and (2)
Defendant’s Answers to Plaintiff’s Interrogatories Numbers 1-25, (Doc. Nos. 74; 85). In one of
his motions to compel, Plaintiff contends that Defendant Conner previously sent Plaintiff a video
in DVD form in response to Plaintiff’s discovery requests, but that the North Carolina
Department of Public Safety at some point confiscated the video while Plaintiff was in transit
from one correctional institution to another.
Defendant Conner shall file a response to Plaintiff’s motions to compel. Defendant shall
specifically address Plaintiff’s contention that the North Carolina Department of Public Safety is
withholding from Plaintiff discoverable information in the form of video on a DVD that was
allegedly confiscated from Plaintiff before he was transferred to his current place of
incarceration. If possible, the parties should seek to resolve the issue of the video on the DVD
without further involvement by the Court, including the possibility that Defendant could mail
Plaintiff another copy of the video that Plaintiff seeks.
Finally, Plaintiff is hereby advised that the Court will entertain no further motions to
compel related to discovery until the Court has ruled on all of the pending motions. Plaintiff is
no doubt entitled to discovery in this action, but he has inundated the Court and Defendants with
numerous motions to compel over the course of this litigation, some of which are clearly
repetitive.

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IT IS THEREFORE ORDERED that:
(1) Plaintiff’s Motion for Leave to File an Amended Complaint, (Doc No. 82), is
DENIED.
(2) Plaintiff’s Motion Requesting Extension of Time for Discovery, (Doc. No. 92), is
DENIED.
(3) Plaintiff’s Motion to Compel and Motion in Opposition to Defendants’ Motion
Allowing Prison Deposition, (Doc. No. 87), is DENIED.
(4) Defendant Conner shall submit a response to Plaintiff’s Motions to Compel, Docket
Numbers 74, 78, 84, and 85, within 20 days of issuance of this Order. Plaintiff shall
file no further motions to compel until the Court first has the opportunity to rule on
the pending motions.

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