Pickens v. Hendricks et al

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:21-cv-00030-MR
BRANDON PICKENS, )
)
Plaintiff, )
)
vs. )
)
STEVEN HENDRICKS, et al., ) ORDER
)
Defendants. )
_______________________________ )
THIS MATTER is before the Court on:
1. The Plaintiff’s Motion to Certify Order in Multiple Claim Case
[Doc. 87];
2. The Plaintiff’s Motion for Reconsideration [Doc. 99];
3. The Plaintiff’s “Motion for Relief from Judgment and Alternative
Non-Party Motion for Relief From Judgment in Civil Action No.
1:19-cv-250-MR-WCM” [Doc. 104];
4. The Plaintiff’s Motion for Appointment of Counsel [Doc. 105];
5. The Plaintiff’s “Notice of Motion and Motion for Sanctions Fed. R.
Civ. P. 11” [Doc. 109];
6. The Plaintiff’s “Motion to Compel Joinder of Party Who Must Be
Joined Fed. R. Civ. P. 19(a) and (b)” [Doc. 110];
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7. Defendants Lambert, Lewis, and May’s Joint Motion for
Extension of Time to Respond to Plaintiff’s Discovery Requests
Pending Entry of Revised Case Management Deadline [Doc.
118];
8. Defendant Seven Hendricks’ Motion for Protective Order and
Gatekeeper Order [Doc. 119];
9. The Plaintiff’s Motion for Reconsideration of the Plaintiff’s Motion
for Rule 11 Sanctions [Doc. 121];
10. The Plaintiff’s Motion for Use of Depositions Lawfully and Duly
Filed in Former Action Fed. R. Civ. P. 32(a) [Doc. 125];
11. The Plaintiff’s Motion for Vacatur of Stay of Proceedings [Doc.
134]; and
12. The Plaintiff’s Motion to Lift Stay [Doc. 137].
I. BACKGROUND
The pro se incarcerated Plaintiff filed this civil rights action pursuant to
42 U.S.C. § 1983, addressing incidents that allegedly occurred during a
traffic stop involving the Plaintiff and his passenger, Marcus Hyatt.1 The
1 Hyatt and his girlfriend Ashley Barrett, who was detained in a separate vehicle stop, filed
a separate action in this Court, Hyatt v. Miller, Case No. 1:19-cv-00250-MR-WCM. The
Plaintiff unsuccessfully moved to intervene in the Hyatt action and for relief from the
Judgment in that case. [See 1:19-cv-250 (“Hyatt”) Docs. 152, 159, 162, 163; April 24,
2023 Text-Only Order].
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Complaint passed initial review on the Plaintiff’s claims against J.D. Lambert,
Jeff May, and Katherine Lewis, who are all Buncombe County Sheriff’s Office
(BCSO) deputies, for the traffic stop and the Plaintiff’s subsequent detention;
false arrest and false imprisonment; the search of the vehicle and of
Plaintiff’s personal property; and against Lambert, May, Lewis, and Officer
Steven Hendricks for the Plaintiff’s body cavity search pursuant to an
allegedly defective warrant. [Docs. 1, 13]. The Court exercised
supplemental jurisdiction over several claims under North Carolina law. [Doc.
13].
On November 18, 2021, Defendant Hendricks filed a Motion to Dismiss
for failure to state a claim which was granted on April 25, 2022, after the
Plaintiff was provided the opportunity to respond. [See Docs. 24, 25, 26].
The Plaintiff filed a Motion to Alter or Amend the Order granting Defendant
Hendricks’ Motion to Dismiss, which was denied on July 11, 2022. [Docs.
36, 50]. Also on July 11, 2022, the Court related the present action to Hyatt
at the Plaintiff’s request, and stayed this matter until the post-trial motions in
Hyatt were resolved.2
2 A jury reached a partial verdict at trial in March 2021, and the Court resolved the issues
on which the jury was deadlocked in August 2022. See Hyatt v. Miller, 2022 WL 3130108
(W.D.N.C. Aug. 3, 2022).
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The Plaintiff appealed the Order granting Defendant Hendricks’ Motion
to Dismiss and denying Plaintiff’s Motion to Alter or Amend, Case No. 22-
6891. [Docs. 50, 53]. While that appeal was pending, the Plaintiff filed a
Motion in this Court to Certify Order in Multiple Claim Case. [Doc. 87]. On
January 19, 2023, the Court deferred ruling on the Motion because its Rule
54(b) analysis would necessarily overlap with the pending appeal. [Doc. 96].
On January 20, 2023, the Fourth Circuit dismissed the Plaintiff’s appeal for
lack of jurisdiction because the orders that the Plaintiff sought to appeal “are
neither final orders nor are they appealable interlocutory or collateral orders.”
Pickens v. Hendricks, 2023 WL 334002 (4th Cir. Jan. 20, 2023). The
mandate issued on March 3, 2023. [Doc. 102].
The Judgment in Hyatt has now been satisfied and that case has been
closed. [Hyatt Doc. 164 (Satisfaction of Judgment)]. The Court will now
address the presently pending Motions.
II. DISCUSSION
A. Stay and Scheduling
As a preliminary matter, the parties agree that the stay of these
proceedings should be lifted, as the Hyatt case has now been resolved. [See
Doc. 112: Defendants’ Status Report; Doc. 134: Plaintiff’s Motion for Vacatur
of Stay; Doc. 137: Plaintiff’s Motion to Lift Stay]. The Plaintiff’s Motions
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[Docs. 134, 137] are, therefore, granted and the stay is lifted. The Court will
amend the Pretrial Order and Case Management Plan [Doc. 35] to account
for the stay as follows:
(1) All discovery shall be completed no later than September 15, 2023;
(2) All motions except motions in limine and motions to continue shall
be filed no later than October 16, 2023.
Defendants Lambert, Lewis, and May seek an extension of time to
respond to the Plaintiff’s discovery requests to account for the stay of this
action.3 [Doc. 118]. The Plaintiff does not appear to object to the extension
of time. [See Doc. 127]. The Defendants’ Motion is granted and the Court
will extend the deadline for the Defendants to respond to Plaintiff’s discovery
requests until 30 days from the date of this Order.
B. Motion to Certify
The Plaintiff asks the Court to certify the Orders granting Defendant
Hendricks’ Motion to Dismiss [Doc. 50] and denying the Plaintiff’s Motion to
Alter or Amend the same [Doc. 53], pursuant to Rule 54(b) of the Federal
Rules of Civil Procedure.
3 The Defendants also note that the Plaintiff has exceeded the permitted number of
discovery requests, however, they do not appear to seek relief on this issue.
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Rule 54(b) of the Federal Rules of Civil Procedure provides, in
pertinent part, as follows:
When an action presents more than one claim for
relief -- whether as a claim, counterclaim, crossclaim,
or third-party claim -- or when multiple parties are
involved, the court may direct entry of a final
judgment as to one or more, but fewer than all, claims
or parties only if the court expressly determines that
there is no just reason for delay.
Fed. R. Civ. P. 54(b). To certify an order under Rule 54(b) requires two
steps. First, the Court must determine whether the judgment is “final,” that
is, whether the order is “an ultimate disposition of an individual claim entered
in the course of a multiple claims action.” Braswell Shipyards, Inc. v. Beazer
East, Inc., 2 F.3d 1331, 1335 (4th Cir. 1993) (citation and internal quotation
marks omitted). Second, the Court must determine whether there is “no just
reason for the delay” in the entry of a judgment. Id. In making this
determination, the Court should consider:
(1) the relationship between the adjudicated and
unadjudicated claims; (2) the possibility that the need
for review might or might not be mooted by future
developments in the district court; (3) the possibility
that the reviewing court might be obliged to consider
the same issue a second time; (4) the presence or
absence of a claim or counterclaim which could result
in a set-off against the judgment sought to be made
final; (5) miscellaneous factors such as delay,
economic and solvency considerations, shortening
the time of trial, frivolity of competing claims,
expense, and the like.
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Id. at 1335-36 (citations omitted). The movant has the burden to establish
that Rule 54(b) certification is warranted. Id. at 1335. Ultimately, it is within
the Court’s sound discretion “to determine the appropriate time when each
final decision in a multiple claims action is ready for appeal.” Curtiss-Wright
Corp. v. Gen. Elec. Co., 446 U.S. 1, 8 (1980) (citation and internal quotation
mark omitted). Such discretion should be exercised “in the interest of sound
judicial administration.” Id. (citation omitted).
Here, the Court’s Orders dismissing Defendant Hendricks and denying
reconsideration of the same constitute the “ultimate disposition of the claims”
against Hendricks. However, resolution of the issue on which the Plaintiff
seeks to appeal does nothing to advance the termination of the litigation
against the Defendants who remain in the action still pending in this Court.
Moreover, the claims against Hendricks and the remaining Defendants are
intertwined such that the future developments in this Court may moot a future
appeal regarding Hendricks’ alleged liability. Neither judicial economy nor
the interests of justice would be served by allowing the Plaintiff to appeal the
Orders relating to Hendricks at this juncture. Accordingly, the Plaintiff’s
Motion to Certify Order in Multiple Claim Case is denied.
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C. Motions for Reconsideration
The Plaintiff seeks reconsideration of the Judgment in the Hyatt case
pursuant to Rule 60(b) [Doc. 104]; the Order granting Defendant Hendricks’
Motion to Dismiss [Doc. 99]; and the Order denying Plaintiff’s Motion for
Sanctions [Doc. 121] in the instant case pursuant to Rule 54(b).
As to the Rule 60(b) Motion, the Plaintiff has previously sought such
relief from the Judgment in the Hyatt case. [Doc. 104]. The Court denied
the Plaintiff’s Motions directed to the Hyatt case, and it denies the instant
Motion for the same reasons. [See Doc. 82 at 6].
As to the instant case, “a district court retains the power to reconsider
and modify its interlocutory judgments . . . at any time prior to final judgment
when such is warranted.” Am. Canoe Ass’n v. Murphy Farms, Inc., 326 F.3d
505, 514–15 (4th Cir. 2003); see also Fed. R. Civ. P. 54(b).
In his Motion challenging the Order granting Defendant Hendricks’
Motion to Dismiss, the Plaintiff reiterates his arguments that the Court erred
in weighing the sufficiency of his allegations against Hendricks, and in
granting Hendricks’ Motion to Dismiss. Those arguments were previously
rejected and the Court will not address them again. [See Doc. 82 at 6-7].
The Plaintiff also argues that the Court should consider materials that were
not available when Defendant Hendricks filed his Motion to Dismiss which,
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he claims, show that the warrant application incorrectly states that the
Plaintiff previously pleaded guilty to trafficking cocaine on January 17, 2012,
rather than on June 25, 2012. [Doc. 99 at 8-10; see Doc. 92-1 at 2-14
(Search Warrant Application; Buncombe County Superior Court Transcript
of Plea; Buncombe County Superior Court Indictment; NCDPS Offender
Status)]. The Plaintiff does not dispute the existence of the cocaine
trafficking conviction. That the plea date reflected in the warrant application
may have been inaccurate by less than six months is not a material fact that
could have conceivably affected the probable cause determination. See
Thompson v. Prince William Cnty., 753 F.2d 363 (4th Cir. 1985) (recognizing
that “[n]ot every mix-up in issuance of an arrest warrant … automatically
constitutes a constitutional violation for which a remedy may be sought”);
see, e.g., United States v. Felder, 457 F. App’x 316, 322 (4th Cir. 2011)
(finding a warrant to be valid despite typographical errors). The Plaintiff’s
general argument that the Court misinterpreted his position regarding
Defendant Hendricks’ liability is vague and conclusory, and fails to
demonstrate the reconsideration is warranted. [Id. at 8-9]. Accordingly, the
Plaintiff’s Motion to reconsider the Order granting Defendant Hendricks’
Motion to Dismiss is denied.
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With regard to the denial of Plaintiff’s Motion for Rule 11 sanctions
[Docs. 121, 96], the Plaintiff argues that: he did not fail to comply with the
safe harbor rule; that the safe harbor rule does not apply; and that the Motion
for Sanctions was proper because the Plaintiff filed it after the Court granted
Defendant Hendricks’ Motion to Dismiss. The Plaintiff’s disagreement with
the Court’s analysis fails to demonstrate any valid basis for reconsideration.
Accordingly, reconsideration of that Motion is denied.
D. Motion to Appoint Counsel
The Plaintiff moves the Court to appoint counsel to represent him in
this action. [Doc. 105]. He argues that he is unable to afford counsel; that
his imprisonment will greatly limit his ability to litigate; that the issues are
complex and require significant research and investigation; that he is in
solitary confinement, has no access to a law library, and has limited
knowledge of the law; that the case will likely involve conflicting testimony
and counsel would better enable him to present evidence and cross-examine
witnesses; that the Plaintiff is unable to leave the prison to interview
witnesses and view body camera footage; and that the issues in this case is
indistinguishable from Hyatt, which the Court recognized, are unusual and
complex. The Plaintiff contends that the foregoing are exceptional
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circumstances that warrant the appointment of counsel and that the failure
to do so would be an abuse of discretion.
The Court previously denied Plaintiff the appointment of counsel in this
case, and the instant Motion is denied for the same reasons. [See Doc. 82
at 13].
E. Motion for Sanctions
The Plaintiff has filed a Notice and Motion stating that he intends to
seek attorney’s fees,4 costs, and sanctions against defense counsel5
pursuant to Rule 11. [Doc. 109]. He contends that the Answer contains false
information regarding the vehicle stop, detention, and searches [Doc. 109-1
at 2-3]; that the Defendants gave perjured testimony in the Hyatt case upon
which counsel in the instant case continues to rely [id. at 9]; and that the false
evidence produced in the Hyatt case will also be produced in the instant case
[id. at 11]. Specifically, the Plaintiff argues that Defendant Lambert perjured
himself at the Hyatt trial and “fabricated probable cause” by claiming that he
observed the Plaintiff’s vehicle for traffic violations he observed at around
12:30 PM, whereas the traffic citation states that the violations occurred at
2:00 PM. [Id. at 3-5].
4 It is unclear why the Plaintiff is seeking attorney’s fees, as he is unrepresented.
5 The Plaintiff asserts this Motion against Curtis Euller and Cameron Nieters.
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Rule 11(b) of the Federal Rules of Civil Procedure provides, in
pertinent part, as follows:
By presenting to the court a pleading, written motion,
or other paper—whether by signing, filing,
submitting, or later advocating it—an attorney or
unrepresented party certifies that to the best of the
person's knowledge, information, and belief, formed
after an inquiry reasonable under the circumstances:
(1) it is not being presented for any improper
purpose, such as to harass, cause unnecessary
delay, or needlessly increase the cost of litigation;
(2) the claims, defenses, and other legal
contentions are warranted by existing law or by a
nonfrivolous argument for extending, modifying, or
reversing existing law or for establishing new law;
(3) the factual contentions have evidentiary
support or, if specifically so identified, will likely have
evidentiary support after a reasonable opportunity for
further investigation or discovery; and
(4) the denials of factual contentions are
warranted on the evidence or, if specifically so
identified, are reasonably based on belief or a lack of
information.
Fed. R. Civ . P. 11(b).
A legal argument fails to satisfy Rule 11(b)(2) when “in applying a
standard of objective reasonableness, it can be said that a reasonable
attorney in like circumstances could not have believed his actions to be
legally justified.” Morris v. Wachovia Sec., Inc., 448 F.3d 268, 277 (4th
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Cir.2006) (quoting Hunter v. Earthgrains Co. Bakery, 281 F.3d 144, 153 (4th
Cir. 2002)) (punctuation omitted). “The legal argument must have absolutely
no chance of success under the existing precedent” to contravene the rule.
Id. Factual allegations violate Rule 11(b)(3) when such allegations “are
‘unsupported by any information obtained prior to filing.’” Id. (quoting
Brubaker v. City of Richmond, 943 F.2d 1363, 1373 (4th Cir.1991)). This rule
also empowers the district court to sanction a party or lawyer for “insisting
[on] a position after it is no longer tenable.” Fed. R. Civ. P. 11(b) Advisory
Committee’s Notes to 1993 Amendments. If, after notice and a reasonable
opportunity to respond, the Court determines that any provision of Rule 11(b)
has been violated, the Court may impose sanctions on the party responsible
for the violation. Fed. R. Civ. P. 11(c)(1).
The Plaintiff’s contentions that “the Defendants” perjured themselves
and that the Answer contains inaccuracies, are too vague and conclusory to
demonstrate that Rule 11 has been violated. His more specific claims as to
Defendant Lambert also fail. The alleged time discrepancy in Defendant
Lambert’s sworn testimony and the traffic citation fails to demonstrate that
Defendant Lambert perjured himself, or that the Defendants’ positions in the
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instant case are unsupported by any information or are no longer tenable.6
Further, to the extent that the Plaintiff seeks Rule 11 sanctions for information
that, he anticipates, will be provided in discovery from the Hyatt case, this
request is improper. See Fed. R. Civ. P. 11(d) (“This rule does not apply to
disclosures and discovery requests, responses, objections, and motions
under Rules 26 through 37”). The Plaintiff’s Motion for Rule 11 sanctions is,
therefore, denied.
F. Joinder
In the Plaintiff’s “Motion to Compel Joinder of Party Who Must Be
Joined Fed. R. Civ. P. 19(a) and (b)” [Doc. 110], the Plaintiff contends that
Marcus Hyatt is a necessary and indispensable party who should be joined
as a Plaintiff in the instant case. The Plaintiff argues that Hyatt’s presence
in the instant case will allow the Court to “properly correct any
inconsistencies that may arise from both Hyatt’s action and the instant case,”
and to avoid “factual and legal whipsaw”. [Id. at 3, 18].
Rule 19 of the Federal Rules of Civil Procedure sets out a two-step
inquiry to determine whether a non-joined party is necessary under Rule
19(a), and whether the party is indispensable under Rule 19(b). Guvnor SA
6 Indeed, the jury found in Hyatt that Defendant Lambert saw the Plaintiff’s vehicle change
lanes without signaling and affect the operation of another vehicle, and had reasonable
suspicion to stop Plaintiff’s vehicle. [See Hyatt Doc. 132].
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v. Kayablian, 948 F.3d 214, 218 (4th Cir. 2020) (citations omitted). If a party
is “necessary” under Rule 19(a), the party will be “ordered into the action.”
Owens-Illinois, Inc. v. Meade, 186 F.3d 435, 440 (4th Cir. 1999). If the
necessary party being ordered into the action would defeat the court’s
jurisdiction, the court must determined whether the necessary party is also
“indispensable” such that a failure to join the party requires the actions’
dismissal. See id. The burden is on the party raising the Rule 19 argument
to show that the party who was not joined is needed for a just adjudication.
U.S. Bank. Nat’l Assoc. v. Sofield, No. 5:16-cv-84-RLV, 2017 WL 2569740
(W.D.N.C. June 13, 2017).
Under Rule 19(a), an absent person must be joined as a party if that
the joinder will not deprive the court of subject-matter jurisdiction and if:
(A) in that person’s absence, the court cannot accord
complete relief among existing parties; or
(B) that person claims an interest relating to the subject of
the action and is so situated that disposing of the
action in the person’s absence may:
(i) as a practical matter impair or impede the person’s
ability to protect the interest; or
(ii) leave an existing party subject to a substantial risk of
incurring double, multiple, or otherwise inconsistent
obligations because of the interest.
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Fed. R. Civ. P. 19(a)(1). If a person has not been joined as required, the
court must order that the person be made a defendant or, in a “proper case,”
an involuntary plaintiff. Fed. R. Civ. P. 19(a)(2).
Rule 19(a)(1)(A) focuses on the impact of nonjoinder on the parties to
the action. “‘Complete relief’ refers to relief as between persons already
parties, not between a party and an absent person whose joinder is sought.”
United States v. Arlington Cnty., 669 F.2d 925, 929 (4th Cir. 1982). Rule
19(a)(1)(B) “focuses on the impact of nonjoinder on the nonjoined party.”
Sofield, 2017 WL 2569740, at *8 (citing Pettiford v. City of Greensboro, 556
F.Supp.2.d 512, 517 (M.D.N.C. 2008)). Importantly, “the nonjoined party
must be the one claiming an interest. It is well established that where the
absent party has not claimed an interest, Rule 19(a)(1)(B) does not apply.”
Sunbelt Rentals, Inc. v. Guzman, 5:20-cv-70-KDB, 2020 WL 5522997 at *1
(W.D.N.C. Aug. 27, 2020) (citations omitted). Joinder of an involuntary
plaintiff is generally disfavored, and therefore, a party may only be so joined
if that party “(1) has an obligation to permit its name or title to be used to
protect the rights asserted in the action; (2) is beyond the jurisdiction of the
court; and (3) has refused to voluntarily join in the action following notification
thereof.” Hicks v. Intercontinental Acceptance Corp., 154 F.R.D. 134, 135
(E.D.N.C. 1994) (quoting Sheldon v. West Bend Equip. Corp., 718 F.2d 603,
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606 (3d Cir. 1983); citing Independent Wireless Telegraph Co. v. Radio
Corporation of America, 269 U.S. 459 (1926)).
The Plaintiff has not carried his burden under Rule 19 to establish that
Mr. Hyatt is a necessary party in this action. The Plaintiff can obtain
complete relief with the parties already in this action, and no relationship
between the Plaintiff and Mr. Hyatt exists that would make Mr. Hyatt a
necessary party here. See generally Arlington Cty., 669 F.2d at 929; see
Wright & Miller, 7 Fed. Prac. & Proc. Civ. § 1606 (3d ed.) (noting that the
involuntary-plaintiff procedure has been used most commonly to allow the
exclusive licensee of a patent or a copyright, or the equitable owner of a
copyright, to prosecute an action by compelling the joinder of the owner).
Nor has Mr. Hyatt expressed an interest in joining the instant action, having
already litigated his own claims against the Defendants. See Sunbelt
Rentals, 2020 WL 5522997 at *1. It appears that the Plaintiff is essentially
displeased with the outcome of Hyatt and is attempting to relitigate it in his
own case. The Plaintiff’s disagreement with the outcome in Hyatt does not
make Mr. Hyatt a necessary or indispensable party to this action, and
therefore, the Motion is denied.
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G. Protective Order and Gatekeeper Order
Defendant Steven Hendricks seeks a Protective Order and
Gatekeeper Order. [Doc. 119]. He argues that a Protective Order should be
entered so that he is not required to respond to any pending or future
discovery requests pursuant to Rules 26(c)(1)(A) and 33; and that a
Gatekeeper Order should require the Plaintiff’s future filings to be reviewed
by the magistrate judge7 for frivolity prior to docketing pursuant to 28 U.S.C.
§§ 1651(a) and 1915(a), and Rule 11.8 The Plaintiff argues that the Court
should not enter a Gatekeeper Order because several of the motions
identified by Hendricks are not frivolous [Docs. 87, 92, 99], and that no
Protective Order is warranted because he is not prohibited from serving
discovery on Hendricks as the Order granting Hendricks’ Motion to Dismiss
is not final.9 [Doc. 129].
7 No magistrate judge is presently assigned to this case.
8 Defendant Hendricks argues that the Plaintiff has demonstrated that he is incapable of
complying with the Federal Rules of Civil Procedure, and that he has filed more than a
dozen Motions that are frivolous on their face, i.e., Docs. 24, 36, 52, 62, 63, 64, 66, 67,
68, 69, 73, 74, 80, 85, 87, 89, 92, 99.
9 The Plaintiff also asks the Court to enter Protective and Gatekeeper Orders against
Hendricks. [Doc. 129 at 1]. However, the Plaintiff has failed to explain what relief he is
seeking in Protective and Gatekeeping Orders against Hendricks; his conclusory and
improper requests for such are denied. See Fed. R. Civ. P. 7(b)(1) (“A request for a court
order must be made by motion…”); LCvR 7.1(c)(2) (“Motions shall not be included in
responsive briefs. Each motion must be set forth in a separately filed pleading.”).
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Rule 26(c)(1) of the Federal Rules of Civil Procedure provides that a
party or person from whom discovery is sought may move for a protective
order, and the court may, for good cause, issue an order to protect a party
or person from annoyance, embarrassment, oppression, or undue burden or
expense. A party moving for a protective order has the burden of making a
particularized showing of why discovery should be denied. Smith v. United
Salt Co., No. 1:08-cv-53, 2009 WL 2929343, at *5 (W.D. Va. 9 Sept. 2009);
see also Fed. R. Civ. P. 26(c)(1) (the party moving for a protective order
bears the burden of showing good cause for its entry). Whether to grant or
deny a motion for protective order is generally left within the district court’s
broad discretion. Lone Start Steakhouse & Saloon, Inc. v. Alpha of Va., Inc.,
43 F.3d 922, 929 (4th Cir. 1995).
Here, the Plaintiff has served interrogatories on Hendricks, who has
been dismissed from this action with prejudice. As such, the Plaintiff’s
interrogatories are not authorized under Rule 33.10 See Fed. R. Civ. P. 33
10 The Plaintiff has not sought a subpoena for non-party discovery pursuant to Rule 45,
nor does it appear that such would be appropriate here. See generally Va. Dep’t of Corr.
v. Jordan, 921 F.3d 180, 194 (4th Cir. 2019) (nonparties “should not be drawn into the
parties’ dispute unless the need to include them outweighs the burdens of doing so,
considering their nonparty status”); United States v. Meridian Senior Living, LLC, No.
5:16-v-410-BO, 2018 WL 5723930 (E.D.N.C. Nov. 1, 2018) (the court “cannot
countenance requiring a nonparty to produce a multitude of documents without the
requesting party’s first attempting to obtain such documents from other parties that likely
have copies of the documents”); see Fed. R. Civ. P. 26(d)(3) (recognizing a court’s
authority to direct the sequence of discovery).
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(“a party may serve on any other party no more than 25 written
interrogatories….”) (emphasis added). Hendricks has demonstrated good
cause to excuse him from responding to the Plaintiff’s improper
interrogatories and any future improper discovery requests. Accordingly, the
Motion for a Protective Order is granted and Hendricks is not required to
respond to any existing or future discovery requests that the Plaintiff may
serve on him, absent the Court’s express authorization.
The All Writs Act, 28 U.S.C. § 1651(a), permits a federal court to restrict
repeat vexatious and malicious litigants access to the courts. Cromer v. Kraft
Foods N. Am., Inc., 390 F.3d 812 (4th Cir.2004). District courts have inherent
power to control the judicial process and to redress conduct that abuses that
process. Silvestri v. General Motors Corp., 271 F.3d 583, 590 (4th Cir.2001)
(citation omitted). There are no exceptions for pro se litigants. Armstrong v.
Koury Corp., 16 F.Supp.2d 616, 620 (M.D.N.C. 1998). Limiting a pro se
litigant’s free access to the courts should be approached cautiously and
restrictions imposed only if “exigent circumstances” exist, such as
continuous abuse of the judicial process by filing meritless and repetitive
actions. Cromer, 390 F.3d 812 at 818.
The Court finds that the Plaintiff has engaged in some duplicative and
frivolous filings; however, his conduct has not yet reached the level of
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exigence that requires the imposition of sanctions. The Motion for a
Gatekeeping Order is, therefore, denied at this time. However, the Plaintiff
is cautioned that any further duplicative, frivolous, malicious,
insufficient, or vexatious filings in this Court may result in the
imposition of sanctions including the entry of a pre-filing injunction.
H. Depositions
The Plaintiff seeks permission to use the depositions of the Defendant
herein that were taken in Hyatt. [Docs. 125, 131]. The Defendants do not
object. [Doc. 130]. The Plaintiff’s Motion is granted and the Plaintiff may use
the depositions of the Defendants herein that were taken in the Hyatt case
in the same manner as though those depositions were taken in this matter.11
O R D E R
IT IS, THEREFORE, ORDERED that:
1. The Plaintiff’s Motion for Vacatur of Stay of Proceedings [Doc.
134] and Motion to Lift Stay [Doc. 137] are GRANTED, and the
stay of this matter is hereby LIFTED.
11 The Plaintiff is reminded that he will be responsible for any costs associated with the
same, including the cost of obtaining copies. See generally United States v. MacCollom,
426 U.S. 317, 321 (1976) (“The established rule is that the expenditure of public funds is
proper only when authorized by Congress….”); Pickens v. Lewis, No. 1:15-cv-275-FDW,
2017 WL 2198342, at *2 (W.D.N.C. May 18, 2017) (noting that 28 U.S.C.§ 1915 does not
authorize the payment of litigation expenses and “[o]rdinarily, the plaintiff must bear the
costs of his litigation ... even in pro se cases”).
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2. The Pretrial Order and Case Management Plan [Doc. 35] is
AMENDED as follows:
a. All discovery shall be completed no later than September
15, 2023;
b. All motions except motions in limine and motions to
continue shall be filed no later than October 16, 2023.
3. Defendants Lambert, Lewis, and May’s Joint Motion for
Extension of Time to Respond to Plaintiff’s Discovery Requests
Pending Entry of Revised Case Management Deadline [Doc.
118] is GRANTED, and the Defendant shall have 30 days from
the entry of this Order to serve such requests.
4. The Plaintiff’s Motion to Certify Order in Multiple Claim Case
[Doc. 87] is DENIED.
5. The Plaintiff’s Motion for Reconsideration [Doc. 99] is DENIED.
6. The Plaintiff’s “Motion for Relief from Judgment and Alternative
Non-Party Motion for Relief From Judgment in Civil Action No.
1:19-cv-250-MR-WCM” [Doc. 104] is DENIED.
7. The Plaintiff’s Motion for Appointment of Counsel [Doc. 105] is
DENIED.
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8. The Plaintiff’s “Notice of Motion and Motion for Sanctions Fed. R.
Civ. P. 11” [Doc. 109] is DENIED.
9. The Plaintiff’s “Motion to Compel Joinder of Party Who Must Be
Joined Fed. R. Civ. P. 19(a) and (b)” [Doc. 110] is DENIED.
10. Defendant Seven Hendricks’ Motion for Protective Order and
Gatekeeper Order [Doc. 119] is GRANTED IN PART AND
DENIED IN PART. The Motion for a Gatekeeper Order is
DENIED. The Motion for Protective Order is GRANTED as
follows: Defendant Hendricks is not required to respond to any
existing or future discovery requests that the Plaintiff may serve
on him, absent the Court’s express authorization.
11. The Plaintiff’s Motion for Reconsideration of the Plaintiff’s Motion
for Rule 11 Sanctions [Doc. 121] is DENIED.
12. The Plaintiff’s Motion for Use of Depositions Lawfully and Duly
Filed in Former Action Fed. R. Civ. P. 32(a) [Doc. 125] is
GRANTED in accordance with this Order.
IT IS SO ORDERED. Signed: August 14, 2023
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