CASPER v. COOPER

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

CURTIS R. CASPER, et. al., )

)

Plaintiffs, )

)

v. ) 1:20-cv-00942

)

GOVERNOR ROY ASBERRY COOPER )

III, in his individual )

capacity, et al., )

)

Defendants. )

MEMORANDUM ORDER

Before the court is a motion, brought by Plaintiffs Curtis R.

Casper, Danielle Casper, Child 1, and Child 2, to alter or amend

the court’s Memorandum Order dated March 23, 2022,1 which dismissed

Plaintiffs’ federal law claims against almost all of the Defendants

with prejudice (Doc. 33). (Docs. 35, 36).2 Defendants North

Carolina Governor Roy A. Cooper, III; Regina Ferebee; Eric A.

1 Plaintiffs filed their motion to alter or amend the court’s previous

order on April 20, 2022. (Doc. 35.) But they failed to file a brief

in support of their motion, contrary to Local Rule 7.3(j). On April 22,

without withdrawing their first motion, Plaintiffs filed a separate

motion and supporting brief. (Doc. 36; Doc. 36-2.) This second motion

also attached a “Notice of Errata” (Doc 36-1), along with almost 300

pages of exhibits (Doc. 36-3). For the purposes of this order, the court

will treat the second motion and its attachments as supplements to the

first motion.

2 Despite captioning their motion to include cases 1:20-cv-00942, 1:20-

cv-00943, 1:20-cv-00951, and 1:20-cv-00953, Plaintiffs filed it only in

case 1:20-cv-00942. (E.g., Doc. 36.) However, the court has not

consolidated these cases (see Doc. 23 at 5 (consolidating the cases “for

briefing purposes only” as to the pending motions to dismiss)) and

published separate orders on the motions to dismiss in each case (see,

e.g., Doc. 32 in case 1:20-cv-00953). Accordingly, the court will

address Plaintiffs’ motion only in the case in which it was filed - case

1:20-cv-00942. (See Doc. 33.)

Hooks; Kenneth Lassiter; Gary Junker; Frank L. Perry; Robert

Kaldahl; George Solomon; W. David Guice; Felix Taylor; Colbert

Respass; Fay D. Lassiter; Nicole Sullivan; Annie Harvey; Joseph

Harrell; Marquis Betz; Karen Brown; Robert Leon; Jeffrey Baker;

Richard Turner; Loris Sutton; Vivian Johnson; Thomas Ashley;

Jermaine Griffin; William Davenport; Steven Gardner; Carlton

Richardson; Leon Williams; Stephanie Freeman; Karen Steinour; Joe

Prater; Tony Taylor; Tim Moose; Angela Sintef; Bill Stoval; and

Jerry Carroll (the “Individual Defendants”) filed a response in

opposition. (Doc. 37.) For the reasons set forth below, the

motion will be denied.

I. BACKGROUND

This case is one of eight actions that allege substantially

similar claims, brought by the same attorneys, against the same

Defendants, and arising from the same underlying occurrence. A

more complete discussion of the underlying factual scenario

alleged is set out in this court’s prior opinion. Midgett v.

Cooper, No. 1:20-CV-00941, 2021 WL 4973634 (M.D.N.C. Oct. 26,

2021). In short, all claims arise out of the deaths of four prison

guards during an uprising and escape attempt at the North Carolina

Department of Corrections Pasquotank Correctional Institution.

Plaintiffs brought claims against thirty-six Defendants across two

agencies and the State’s executive branch (the Individual

Defendants); and four inmate Defendants, Mikel E. Brady, II;

Wisezah D. Buckman; Seth J. Frazier; and Jonathan M. Monk. The

allegations in all the various complaints in these related cases

are confused, inaccurate, and replete with persistent errors. (See

Doc. 33 at 4-5.)

The court previously stayed further briefing on the motion to

dismiss pending resolution of a nearly, if not fully, identical

motion in a related case arising from the same incident, Midgett

v. Cooper, No. 1:20CV941. On October 26, 2021, the court issued

its ruling in that case, dismissing the claims of the Individual

Defendants. Midgett, 2021 WL 4973634. Thereafter, the court

lifted the stay to permit the parties to brief the pending motions.

(Doc. 21.) The Individual Defendants filed the briefing for their

motion to dismiss on November 18, 2021, relying on the court’s

treatment of the related claims in the Midgett case and urging the

same result of dismissal. (Doc. 26.) In disregard of the court’s

order and the local rules, Plaintiffs did not respond to the

Individual Defendants’ motions to dismiss. Rather, Plaintiffs

moved for permission to amend their complaint a second time.

(Docs. 25, 28.)

The court granted the motion to dismiss on March 23, 2022.

(Doc. 33.) In doing so, the court also reviewed Plaintiffs’

proposed second amended complaint under the motion to dismiss

standard and denied the motion to amend as futile. (Id.) See

Stevenson v. City of Seat Pleasant, Maryland, 743 F.3d 411, 416

n.3 (4th Cir. 2014) (noting that even though a motion to dismiss

is not challenged, the district court nevertheless has an

obligation to review the motion to ensure that dismissal is

proper); Katyle v. Penn National Gaming, Inc., 637 F.3d 462, 471

(4th Cir. 2011) (“Futility is apparent if the proposed amended

complaint fails to state a claim . . . .”).

In the present motion, Plaintiffs seek reconsideration of the

court’s order dismissing their federal claims against most (but

not all) Defendants pursuant to Federal Rule of Civil Procedure

59(e). (Doc. 36-2.) District courts have discretion to reconsider

interlocutory orders until a final judgment is entered. Akeva,

L.L.C. v. Adidas America, Inc., 385 F. Supp. 2d 559, 565 (M.D.N.C.

2005); see also American Canoe Ass’n, Inc. v. Murphy Farms, Inc.,

326 F.3d 505, 514–15 (4th Cir. 2003) (“[A] district court retains

the power to reconsider and modify its interlocutory judgments,

including partial summary judgments, at any time prior to final

judgment when such is warranted.”). “Most courts have adhered to

a fairly narrow set of grounds on which to reconsider their

interlocutory orders and opinions.” Akeva, 385 F. Supp. 2d at

565.

II. ANALYSIS

Where an order is not final and does not resolve all claims,

reconsideration of the interlocutory order is subject to the

court’s discretion under Federal Rule of Civil Procedure 54(b),

and not the heightened standards of Rules 59(e) or 60(b).3 American

Canoe, 326 F.3d at 514–15. However, such standards “have evolved

as a means of guiding that discretion.” Id. at 515. In exercising

that discretion, “courts in this Circuit have frequently looked to

the standards under Rule 59(e) for guidance in considering motions

for reconsideration under Rule 54(b).” Hatch v. DeMayo, No.

1:16CV925, 2018 WL 6003548, at *1 (M.D.N.C. Nov. 15, 2018)

(collecting cases).

Generally, courts will reconsider interlocutory rulings only

when (1) there has been an intervening change in controlling law,

(2) new evidence becomes available, or (3) the earlier decision

was based on a clear error of law or would result in a manifest

injustice. Akeva, 385 F. Supp. 2d at 566. Such a motion allows

a district court to correct its own errors, but it does not serve

as a vehicle for a party to relitigate old matters or raise new

arguments or legal theories that could have been raised previously.

See Hatch, 2018 WL 6003548, at *1 (quoting South Carolina v. United

States, 232 F. Supp. 3d 785, 793 (D.S.C. 2017)). Consequently, a

motion for reconsideration should not be based on evidence that

was previously available. Boryan v. U.S., 884 F.2d 767, 771 (4th

3 Here, the court’s previous order did not resolve all claims, as the

claims against Defendant Frazier remain. (See Doc. 38 at 6, 30 (not

recommending dismissal for lack of service as to Frazier as he filed an

Answer to Plaintiffs’ First Amended Complaint); Doc. 40 (adopting

Magistrate Judge’s Recommendation and dismissing the claims against

Defendants Brady, Buckman, and Monk).)

Cir. 1989); see Slavin v. Imperial Parking (U.S.), LLC, No. CV

PWG-16-2511, 2018 WL 337758, at *4 (D. Md. Jan. 9, 2018) (applying

Boryan requirements in Rule 54 context), amended, No. CV PWG-16-

2511, 2018 WL 826520 (D. Md. Feb. 9, 2018); I.P. by Newsome v.

Pierce, No. 5:19-CV-228-M, 2020 WL 3405209, at *2 (E.D.N.C. June

19, 2020) (same). While the court’s authority to reconsider

interlocutory orders “may be tempered at times by concerns of

finality and judicial economy,” “[t]he ultimate responsibility of

the federal courts . . . is to reach the correct judgment under

law.” American Canoe, 326 F.3d at 515.

Here, Plaintiffs “request that the Court amend its order to

dismiss the claims without prejudice to allow Plaintiffs to amend

their Complaint and serve the amendment complaint [sic] against

these defendants.” (Doc. 36.) Plaintiffs argue that “new

information” has become available, namely a “Final Order” from the

North Carolina Occupational Safety and Health Review Commission

that lists “serious safety problems at the prison” where the

uprising occurred. (Doc. 36-2 at 3-4.) Plaintiffs contend in

conclusory fashion that dismissal would result in a manifest

injustice in light of the new information. (Id. at 4-5.) They

also attach various exhibits, arguing that this newly submitted

Final Order “shows that the Individual Plaintiffs [sic] acted

wantonly, recklessly, and intentionally.” (Id.) Finally,

Plaintiffs challenge what they characterize as “the Court’s

diversion from its [ruling]” in Darden v. Cooper, No. 1:19CV1050,

2020 WL 5518508, at *4 (M.D.N.C. Sept. 14, 2020) (dismissing

similar claims using the same template complaint brought by the

same counsel in a related case arising from the same prison

uprising for failure to allege a constitutional violation under 42

U.S.C. § 1983 because “[t]o support a due process violation in the

context of voluntary employment with the government, it must be

alleged that the government acted with an intent to harm”), by

relying on the Fourth Circuit’s recent decision in Howe v.

Correction Enterprises, No. 20-2357, 2021 WL 5905716, at *1-2 (4th

Cir. Dec. 14, 2021) (unpublished) (dismissing nearly identical

substantive due process claims based on “affirmative acts,”

“shocks the conscience,” and “failure-to-train” theories as barred

by qualified immunity because “these theories likewise fail to

demonstrate that the defendants in any way violated clearly

established federal law”).4 (Doc. 36-2 at 5.) Plaintiffs assert

that by referring to Howe, this court “impose[d] a different set

of standards” when it dismissed the latest iteration of these

claims. (Id.)

In response, the Individual Defendants argue that the court’s

dismissal of Plaintiffs’ claims with prejudice was proper because

4 Unpublished opinions of the Fourth Circuit are not precedential but

can be cited for their persuasive, but not controlling, authority. See

Collins v. Pond Creek Mining Co., 468 F.3d 213, 219 (4th Cir. 2006).

“Plaintiffs have already had multiple opportunities to amend” but

“were unable to state any legally viable claims.”5 (Doc 37 at 4-

7.) The Individual Defendants also argue that Plaintiffs “have

not presented a basis for altering or amending the judgment based

on any new evidence” and that “Plaintiffs’ counsel was or should

have been aware” of such evidence previously. (Id. at 7-9.) The

Individual Defendants further contend that dismissal is not

manifestly unjust “due to the failure of Plaintiffs’ legal

theories, which recycled facts and legal arguments cannot

correct.” (Id. at 9-12.)

Plaintiffs’ various arguments to alter or amend are

unpersuasive. Whether to dismiss with prejudice under Federal

Rule of Civil Procedure 12(b)(6) lies within the court’s

discretion. Carter v. Norfolk Community Hospital Ass’n, Inc., 761

F.2d 970, 974 (4th Cir. 1985). Throughout the course of these

related actions, Plaintiffs have proffered cut-and-paste, copycat

complaints spanning hundreds of pages. Plaintiffs’ original

complaint is a prolix 609 pages (see Doc. 1), and the first amended

5 The Individual Defendants claim that “the Court should decline to

consider the late-filed material” (Docs. 36) under Federal Rule of Civil

Procedure 59 because the “second motion and the exhibits attached thereto

were filed after the 28-day deadline.” (Doc. 37 at 4-5 (citing Fed. R.

Civ. P. 59(b).) As discussed supra, where an order is not final and

does not resolve all claims, reconsideration of the interlocutory order

is subject to the court’s discretion under Federal Rule of Civil

Procedure 54(b) and not the heightened standards of Rules 59(e) or 60(b).

Because Plaintiffs fail to satisfy the lower burden under Rule 59(e),

the court need not decide whether they pass muster under Rule 60(b).

complaint was “an extraordinary [513] pages long, which is wholly

inconsistent with Federal Rule of Civil Procedure 8(a)(2).” See

Midgett, 2021 WL 4973634, at *1 (describing the first amended

complaint in a related case). After Defendants moved to dismiss

the first amended complaint, Plaintiffs elected not to respond to

the motion but rather moved to file a 63-page proposed second

amended complaint (Doc. 25-1), only to thereafter seek leave to

file a 79-page version of yet another amended complaint (Doc. 28-

2), which the court denied on grounds of futility (Doc. 33). It

is important to emphasize that these eight related actions are a

subsequent iteration of a previously-filed action involving the

same incident and many of the same parties, which this court

dismissed on grounds of sovereign immunity and failure to allege

a constitutional violation under § 1983. See Darden, 2020 WL

5518508, at *4.

Despite ample opportunity, Plaintiffs have repeatedly failed

to allege plausible § 1983 claims against the numerous Individual

Defendants. Quite simply, given Plaintiffs’ previous failed

attempts to articulate a cognizable claim, the court cannot discern

how Plaintiffs could correct the pleading defects discussed in the

court’s previous orders as Plaintiffs continue to attempt to

proceed under a theory of liability predicated on § 1983. (See,

e.g., Docs. 23, 33; see also generally Docs. 1, 8, 28-2.)

Accordingly, dismissal of Plaintiffs’ first amended complaint with

prejudice is warranted. See Cozzarelli v. Inspire Pharmaceuticals

Inc., 549 F.3d 618, 630 (4th Cir. 2008) (affirming district court’s

dismissal with prejudice when “it [was] clear that amendment would

be futile in light of the fundamental deficiencies in plaintiffs’

theory of liability”). Additionally, as discussed above, the

pleading in all the various complaints in these related cases has

been confused, grossly inaccurate, and replete with persistent

fundamental errors. (See Doc. 33 at 4-5.) Thus,

“Plaintiffs’ . . . history of deliberately proceeding in a

dilatory fashion, also counsels in favor of dismissal.” (See Doc.

38 at 14 n.14 (Auld, M.J.) (internal citation omitted).)

Moreover, Plaintiffs’ “new information” does not alter the

court’s previous order. Plaintiffs seek to rely on a decision of

the North Carolina Occupational Safety and Health Review

Commission issued July 14, 2021, which Plaintiffs characterize as

listing “serious safety problems at the prison.” (Doc. 36-2 at

3.) Plaintiffs contend they “only recently were able to obtain a

copy of the Final Order and supporting documents through a formal

request submitted to the North Carolina Department of Labor.” (Id.

at 4.) But the decision is a public document, and Plaintiffs do

not explain why they were unable to obtain a copy before now –

only that they did not do so. See Boryan, 884 F.2d at 771-72

(affirming denial of Rule 59(e) motion where the new evidence

“could have been discovered with due diligence prior to judgment”).

Even assuming the court should consider such evidence at this

stage, the Individual Defendants correctly point out that the

information “does not establish an intent to harm the plaintiffs

by any Individual Defendant[]; nor does it overcome qualified

immunity.” (Doc. 37 at 10; see Doc. 33 at 12-13 (explaining that

“[t]o support a due process violation in the context of voluntary

employment with the government, it must be alleged that the

government acted with an intent to harm” (quoting Darden, 2020 WL

5518508, at *4).) Thus, Plaintiffs’ new information does not alter

the court’s prior dismissal order.

Finally, Plaintiffs claim that this court’s cite to Howe,

2021 WL 5905716, “impose[d] a different set of standards” when the

court dismissed the latest iteration of these claims as futile.

(Doc. 36-2 at 5 (citing Darden, 2020 WL 5518508).) However, this

citation was in the court’s alternative holding that Plaintiffs’

claims fail to overcome qualified immunity. (See Doc. 33 at 13-

14.) The court’s holding explicitly relied upon Darden, 2020 WL

5518508, in concluding that “[Plaintiffs’] substantive due process

claims are not cognizable given the voluntary employment context”

and a failure to allege an intent to harm. (See Doc. 33 at 12-13

(citing Darden, 2020 WL 5518508, at *4).) In any event, Plaintiffs

do not explain, nor can the court readily discern, how Plaintiffs

would “distinguish” a case arising from the same underlying event

with substantially similar legal claims. See generally Howe, 2021

WL 5905716 (“Geoffrey Howe, an employee at [Pasquotank

Correctional Institution] in North Carolina, was murdered by four

inmates during their attempted escape. . . . In addition to three

state-law claims, [plaintiff] brought three claims under 42 U.S.C.

§ 1983, alleging that the defendants had violated substantive due

process.”). Accordingly, the court declines to alter its previous

order.

III. CONCLUSION

For the reasons stated, therefore,

IT IS ORDERED that Plaintiffs’ supplemented motion to alter

or amend the court’s previous dismissal order (Docs. 35, 36) is

DENIED.

/s/ Thomas D. Schroeder

United States District Judge

August 19, 2022