Matthews v. Iyevbele et al

Filing 15

ORDER denying 12 Motion for Reconsideration ; denying 13 Motion for Leave to File Amended Complaint. Signed by Chief Judge Robert J. Conrad, Jr on 5/12/2011. (Pro se litigant served by US Mail.) (tmg)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:11CV153
JOHN D. MATTHEWS,

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)
Plaintiff,
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v.
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STEPHEN IYEVBELE, et al.,
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Defendants.
)
__________________________________________)

ORDER

THIS MATTER comes before the Court on Plaintiff’s Motion for Reconsideration
(Doc. No. 12) and Motion to Amend (Doc. No. 13).
On April 5, 2011, Plaintiff filed a Complaint pursuant to 42 U.S.C. § 1983 against
Detective Iyevbele, Sheriff Bailey, Officer Collins, Officer Riley, Officer Davis, and Officer
Gregory. (Doc. No. 1 ). Plaintiff alleged that Defendant Iyevbele violated his constitutional
rights by taking him from the jail for a DNA sample without a proper warrant for his search and
seizure and without allowing him to contact his attorney. Plaintiff also alleged that Defendant
Riley violated his constitutional rights by interfering with his right to counsel and also by the use
of excessive force against him which caused him physical injuries. Plaintiff alleged that
Defendants Davis and Gregory violated his right to legal counsel and violated his due process
rights. Finally, Plaintiff alleged that Defendants Collins and Bailey violated his rights due to a
“chain of negligence from one part of the departmental divisions to the next.” (Doc. No. 1 at 56).
By Order dated April 19, 2011, this Court dismissed all the defendants and claims except
for the excessive force claim against Defendant Riley. (Doc. No. 8). Plaintiff now moves for
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reconsideration of this Court’s Order dismissing his Sixth Amendment right to counsel claim
against Defendants Iyevbele, Davis and Gregory because the Court incorrectly stated that
Plaintiff had not formally been charged with a crime in connection with the investigation related
to the collection of his DNA, (Doc. No. 8 at 4). Plaintiff also seeks to amend his Complaint.
A motion to reconsider is inappropriate where it merely seeks “to re-debate the merits of
a particular motion.” In re Vioxx Products Liability Litigation, 230 F.R.D. 473, 475 (E.D. La.
2005). Rather, the purpose of a motion for reconsideration is to correct “manifest errors of law
or fact . . . .” DIRECTTV, Inc. V. Hart, 366 F.Supp.2d 315, 317 (E.D.N.C. 2004) (quoting
Harsco Corp. V. Zlotnicki, 779 F.2d 907, 909 (3rd Cir. 1985). “A motion to reconsider is
appropriate where the court has patently misunderstood a party, or has made a decision outside
the adversarial issues presented to the court by the parties, or has made an error not of reasoning
but of apprehension.” Id.
Plaintiff now makes clear that he had been charged a year prior to the warrant for the
collection of the DNA and was awaiting trial on that charge when Defendant Iyevbele came to
the jail to collect DNA for the very same charge. While the Court initially misunderstood this
fact, it does not alter the outcome because the taking of Plaintiff’s DNA, which is nontestimonial evidence, is not a critical stage of the prosecution and therefore does not implicate
the right to counsel. United States v. Dougall, 919 F.2d 932 (5th Cir. 1990) (hair samples,
photographs, semen samples, writing samples and palm prints not a critical stage of
prosecution); Wheeler v. Myers, 2011 WL 690619 (S.D. Ind., Feb.15, 2011) (collection of DNA
not a critical stage of prosecution). Therefore, Petitioner’s Motion for Reconsideration is
DENIED and his request that his claim for the denial of counsel against Defendants Iyevbele,
Riley, Davis and Gregory be reinstated is DENIED.
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Plaintiff also seeks to amend his Complaint. Federal Rule of Civil Procedure 15 governs
amendments in a general civil action. However, in this case filed by a prisoner, 28 U.S.C. §
1915A directs the Court to conduct an initial review of a civil action by a prisoner against a
governmental entity or employee before docketing, or soon as practicable after docketing, to
identify cognizable claims or dismiss the complaint or parts of the complaint. Plunk v. Givens,
234 F.3d 1128 (10th Cir. 2000) (the screening process of 1915A is to be applied sua sponte, as
early as possible, and does not require that process be served or that the plaintiff be provided
with an opportunity to respond). As such, the Court has already considered Plaintiff’s claims
against the dismissed defendants and concluded that Plaintiff has failed to state a claim for relief
against those defendants. For this reason, Plaintiff’s Motion to Amend is Denied. In an
abundance of caution, the Court will briefly address the claims contained in Plaintiff’s Motion to
Amend.
Plaintiff asks that his Complaint be amended to include an excessive force claim against
Detective Iyevbele. However, Plaintiff has included no facts which implicate an excessive force
claim against Detective Iyevbele and therefore Plaintiff’s motion is DENIED.
Plaintiff also seeks to amend his Complaint against Defendants Davis and Gregory
because they aided in the use of excessive force against him. As stated in this Court’s prior
Order, in his Complaint, Plaintiff stated only that these Defendants both called for escorts at the
direction of Defendant Riley. (Doc. No. 1 at 10). Plaintiff does not allege any new facts relating
to Defendants Davis and Gregory from which this Court can find a constitutional violation,
therefore his Motion to Amend is DENIED.
Plaintiff also seeks to amend his Complaint against Defendants Collins and Bailey based
on a theory of negligence. (Doc. No. 13 at 12). In his Complaint, Plaintiff argued that
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Defendants Bailey and Collins violated his rights “from a chain of negligence from one part of
the departmental divisions to the next.” (Doc. No. 1 at 5-6). The undersigned dismissed
Defendants Collins and Bailey because Plaintiff did not allege any personal conduct by these
defendants and negligence does not state a deprivation of either substantive or procedural due
process. Daniels v. Williams, 474 U.S. 327, 340-41 (1986). Plaintiff does not include any new
facts from which the Court can find a constitutional violation.
ORDER
NOW, THEREFORE, IT IS HEREBY ORDERED that:
(1)

Plaintiff’s Motion for Reconsideration (Doc. No. 12) is DENIED; and

(2)

Plaintiff’s Motion for Leave to File an Amended Complaint is DENIED.

Signed: May 12, 2011

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