McClary v. Hopkins

Filing 84

ORDER denying 77 Motion for Leave to File; denying 80 Motion for Writ of Mandamus. Signed by Chief Judge Frank D. Whitney on 8/13/18. (Pro se litigant served by US Mail.)(clc)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:16-cv-88-FDW
RONALD McCLARY,

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Plaintiff,
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vs.
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BELQUIS HOPKINS, et al.,
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Defendants.
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__________________________________________)

ORDER

THIS MATTER is before the Court on pro se Plaintiff’s “Writ of Mandamus,” (Doc. No.
80), and Motion for Leave to Respond to Defendant Anthony Searles’ Answer, (Doc. No. 77).
Plaintiff’s “Writ of Mandamus” is in the nature of a motion for reconsideration of the Order
Denying Default Judgment, (Doc. No. 63), and will be construed as such. 1 See generally United
States v. Morgan, 346 U.S. 502, 505 (1954) (construing a petition for writ of error coram nobis as
a motion seeking and order to void the judgment; “In behalf of the unfortunates, federal courts
should act in doing justice if the record makes plain a right to relief.”). In it, Plaintiff argues that
Defendant David Mitchell has been evading service and that the Court should not tolerate
Defendant’s conduct. Plaintiff’s contention that Defendant Mitchell has not been served is
incorrect. He executed a service waiver that was filed on June 11, 2018, and his answer is due on
August 10, 2018 See (Doc. No. 68).
Plaintiff’s Motion for Leave to Respond to Defendant Searles’ Answer is denied as
premature. The scheduling order has not yet been answered. Plaintiff will have the opportunity to

Plaintiff must file a petition for writ of mandamus addressing this Court’s actions to the Fourth Circuit
Court of Appeals. See 28 U.S.C. § 1651; In re Va. Elec. & Power Co., 539 F.2d 357, 365 (4th Cir. 1976) (the All Writs
Act authorizes circuit courts to issue writs of mandamus to the district courts within the circuit).
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engage in discovery, file dispositive motions, and respond to any dispositive motions filed by
Defendants. He is discouraged from engaging in piecemeal filings which will clog the docket and
may distract the Court from meaningful pleadings.
IT IS THEREFORE ORDERED that:
(1)

Plaintiff’s “Writ of Mandamus,” (Doc. No. 80), is construed as a motion for
reconsideration and is DENIED.

(2)

Plaintiff’s Motion for Leave to Respond to Defendant Anthony Searles’ Answer,
(Doc. No. 77), is DENIED.
Signed: August 13, 2018

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