Jones v. Doe et al
ORDER that: 1) Plaintiff's 50 "Objection to Defendant Natalie Mills' Amended Answer" is construed as Motion to Strike the Amended Answer and is DENIED; 2) Defendant Natalie Snipes Mills' 51 Motion to Strike Plaintiff's Response is DENIED; 3) Plaintiff's 57 Motion to Dismiss Defendants' Motion to Strike is DENIED; 4) Plaintiff's 53 , 61 Motions to Compel are DENIED; and 5) Plaintiff's 55 Motion to Issue a Deposition Subpoena and Obtain Permission for Inmate Deposition is DENIED. Signed by Chief Judge Martin Reidinger on 11/18/2021. (Pro se litigant served by US Mail.)(khm)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CIVIL CASE NO. 3:20-cv-00286-MR
JOHN THOMAS JONES, III,
TONI SELLERS HAIRE, et al.,
THIS MATTER is before the Court on pro se Plaintiff’s “Objection to
Defendant Natalie Mills’ Amended Answer” [Doc. 50]; Defendant Natalie
Snipes Mills’ Motion to Strike Plaintiff’s Response [Doc. 51]; Plaintiff’s Motion
to Dismiss Defendants’ Motion to Strike [Doc. 57]; Plaintiff’s Motions to
Compel Discovery1 [Docs. 53, 61]; and Plaintiff’s Motion to Issue a
Deposition Subpoena and Obtain Permission for Inmate Deposition [Doc.
The incarcerated Plaintiff filed this action pursuant to 42 U.S.C. § 1983
for allegedly deficient medical care he received at the Lanesboro
Correctional Institution for a broken ankle. [Doc. 1]. The Complaint passed
Titled “Motion to Compel Production of Documents and Video Footage” and “Motion to
Compel Interrogatories Response from Defendants,” respectively.
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initial review on claims against several Defendants for deliberate indifference
to a serious medical need.2 [Doc. 39].
An executed summons reflects that Defendant Natalie Snipes Mills
was served on January 19, 2021, making her answer due by March 22, 2021.
[Doc. 37]. She filed a pro se Answer on February 9, 2021 [Doc. 28] and
counsel filed an Amended Answer on her behalf on May 20, 2021 [Doc. 41].
The Plaintiff has filed an “Objection to Defendant Natalie Mills’
Amended Answer” [Doc. 50] that the Defendants have moved to strike
because it is not a pleading permitted by Rule 7(a) [Doc. 51]. The Plaintiff,
in turn, seeks to dismiss the Defendants’ Motion to Strike. [Doc. 57].
The Plaintiff’s Objection [Docs. 50] will be liberally construed as a
Motion to Strike the Amended Answer. See generally Erickson v. Pardus,
551 U.S. 89, 94 (2007) (instructing courts to construe pro se documents
liberally). Because motions are permitted by Rule 7(b), the Defendants’
Motion to Strike the Objection [Doc. 51] is denied, and the Plaintiff’s Motion
to Dismiss the Defendants’ Motion to Strike [Doc. 57] is denied as moot.
The Plaintiff argues in his Motion to Strike that the Amended Answer
is untimely, and is unauthorized because the Plaintiff has not filed an
Defendant Haynes’ Motion to Dismiss was granted [Doc. 39], and Defendant Haire was
dismissed from the action for lack of service [Doc. 43].
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amended complaint. Pursuant to Rule 15(a), a party may amend its pleading
before trial with leave of the court, and “[t]he court should freely give leave
when justice so requires.” Fed. R. Civ. P. 15(a)(2). Under this principle,
absent “any apparent or declared reason—such as undue delay, bad faith or
dilatory motive on the part of the movant, repeated failure to cure deficiencies
by amendments previously allowed, undue prejudice to the opposing party
by virtue of allowance of the amendment, futility of amendment, etc.,” leave
should be freely given “as the rules require.” Foman v. Davis, 371 U.S. 178,
182 (1962). Courts should therefore “focus on prejudice or futility or bad faith
as the only legitimate concerns in denying leave to amend.” Island Creek
Coal Co. v. Lake Shore, Inc., 832 F.2d 274, 279 (4th Cir. 1987). “[D]elay
alone is not sufficient reason to deny leave to amend.” Johnson v. Oroweat
Foods Co., 785 F.2d 503, 509 (4th Cir. 1986).
Defendants’ delay is an inadequate basis to disallow the Amended
Answer under Rule 15.
Johnson, 785 F.2d at 509.
Nor is there any
requirement that an amended complaint must be filed before an amended
answer is allowed. See generally Fed. R. Civ. P. 15. Accordingly, the
Plaintiff’s Motion to Strike the Amended Answer is denied.
Next, the Plaintiff has filed two Motions to Compel. In the first Motion,
the Plaintiff seeks to compel production of documents and video. [Doc. 53;
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see Doc. 54 (Request for Production of Documents)]. The Plaintiff claims
that the Defendants failed to provide a number of documents, including
investigation reports, incident reports, phone logs, and medical logs; video
of an incident in a hallway; and health care policy pertaining to officers with
regard to emergency health.
The Plaintiff alleges that North Carolina
Department of Public Safety (“NCDPS”) policy requires incidents to be
documented and video footage to be preserved, and there is no reason for
the Defendants to have failed to do so unless they are trying to “cover the
Plaintiff’s incident up.” [Doc. 53 at 3]. In the second Motion [Doc. 61], the
Plaintiff argues that Defendants Mills, Mullis, and Burke failed to respond,
within 30 days, to interrogatories he sent them on September 13, 2021.3
The Defendants have filed a Response [Doc. 59] to the first Motion to
Compel, arguing that: the Plaintiff failed to comply with Rule 37(a)(1) before
filing his Motion to Compel; Defendants fully and reasonably responded to
each of the Plaintiff’s production requests; and the Plaintiff’s dissatisfaction
with the discovery responses is not a proper basis for a motion to compel.
Attached to the Response are documents indicating that the Defendants
searched for, and were unable to locate, an incident report, video footage,
Although the Motion refers to “enclosed interrogatories,” no such document was
received by the Court. [Doc. 61 at 1].
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or phone records in response to the Plaintiff’s requests. [Doc. 59-1; Doc. 592 at 1-3]. The Defendants did not respond to the second Motion to Compel,
and the time to do so has expired.
The Plaintiff does not certify, in either of the Motions to Compel, that
he attempted in good faith to resolve the discovery disputes before engaging
the Court’s assistance. The lack of certification alone warrants the denial of
Fed. R. Civ. P. 37(a)(1); see also LCvR 7.1(b) (a non-
dispositive civil motion “must show that counsel have conferred and
attempted in good faith to resolve areas of disagreement or describe the
timely attempts of the movant to confer with opposing counsel;” motions that
fail to do so “may be summarily denied.”). Further, with regard to the first
Motion to Compel, the Defendants have demonstrated that they attempted
to comply with the Plaintiff’s discovery requests and were unable to locate
responsive documents and video. The Court cannot compel the Defendants
to produce documents and video footage that does not exist. The Motions
to Compel are therefore denied.
In the Motion to Issue a Deposition Subpoena and Obtain Permission
for Inmate Deposition, Plaintiff asks to depose the “unknown doctor” who
performed surgery on his ankle because “Plaintiff feels that a lot of questions
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would be answered.” [Doc. 55 at 1]. He also seeks permission to obtain a
declaration from inmate Jeffrey Collins.
The Plaintiff’s request to depose the doctor who performed surgery on
his ankle is premature because he has not yet learned that individual’s name
through discovery. [Doc. 55 at 1]. Further, the Plaintiff has failed to show
that he can afford to pay the costs of deposing the doctor; the fact that the
Plaintiff is proceeding in forma pauperis does not excuse him from bearing
his own litigation expenses. See United States v. MacCollum, 426 U.S. 317,
321 (1976) (“expenditure of public funds [on behalf of indigent litigants] is
proper only when authorized by Congress.”); Pickens v. Lewis, 2017 WL
2198342, at *2 (W.D.N.C. May 18, 2017) (noting that 28 U.S.C. § 1915 does
not authorize payment of litigation expenses and, “[o]rdinarily, the plaintiff
must bear the costs of his litigation ... even in pro se cases.”). Accordingly,
the request for a subpoena to depose the doctor is denied at this time.
The Plaintiff also seeks to obtain a written statement from another
inmate. NCDPS generally prohibits correspondence between inmates due
to security concerns. See generally Turner v. Safley, 482 U.S. 78, 89 (1987);
NCDPS Policy & Procedure, Offender Use of the Mail D.0309(a)(1), (d)
(issued Oct. 13, 2021). The Plaintiff’s request to seek a statement from
another inmate is too vague to support relief in that he fails to explain the
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relevance of inmate Collins’ statement to his case. Nor does the Plaintiff
assert that he has requested permission for the correspondence through the
procedure set forth in the NCDPS Policy & Procedure or attempted to resolve
the matter with defense counsel. See NCDPS Policy & Procedure, Offender
Use of the Mail D.0309(a)(1); LCvR 7.1(b). The Plaintiff’s request to obtain
a written statement from inmate Collins is therefore denied at this time.
IT IS, THEREFORE, ORDERED that:
1. Plaintiff’s “Objection to Defendant Natalie Mills’ Amended Answer”
[Doc. 50] is construed as Motion to Strike the Amended Answer and
2. Defendant Natalie Snipes Mills’ Motion to Strike Plaintiff’s Response
[Doc. 51] is DENIED.
3. Plaintiff’s Motion to Dismiss Defendants’ Motion to Strike [Doc. 57]
4. Plaintiff’s Motions to Compel [Docs. 53, 61] are DENIED.
5. Plaintiff’s Motion to Issue a Deposition Subpoena and Obtain
Permission for Inmate Deposition [Doc. 55] is DENIED.
IT IS SO ORDERED.
Signed: November 18, 2021
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