Crump v. Mecklenburg County Detention Center Officers

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF NORTH CAROLINA

CHARLOTTE DIVISION

CIVIL CASE NO. 3:22-cv-00133-MR

RAMAR DION BENJAMIN CRUMP, )

)

Plaintiff, )

)

vs. )

)

MECKLENBURG COUNTY DETENTION )

CENTER OFFICERS, et al., ) ORDER

)

Defendants. )

____________________________________ )

THIS MATTER is before the Court on the Plaintiff’s pro se “Response

to Defendants and Motion for Entry of Default” [Doc. 22], Motion to Strike

[Doc. 25], Motion for Appointment of Counsel [Doc. 27], and Motion to File

Amended Complaint [Doc. 28].

The incarcerated Plaintiff, who is a pretrial detainee at the Mecklenburg

County Jail (MCJ), filed this action pursuant to 42 U.S.C. § 1983 regarding

an incident that allegedly occurred at MCJ. [Doc. 1]. The Complaint passed

initial review, and service returns indicate that the Defendants were served

on July 26, 2022. [See Docs. 8, 12]. On September 7, 2022, defense

counsel filed a Motion for More Definite Statement and sought an extension

of time to respond to the Complaint. [Docs. 13, 15]. On September 15,

2022,1 the Plaintiff filed a Declaration for Entry of Default [Doc. 17]. On

November 9, 2022, the Court denied the Motion for Entry of Default and

extended the time to respond to the Complaint. [Doc. 20]. The Defendants

timely filed an Answer on November 21, 2022. [Doc. 21]. The Court entered

a Pretrial Order and Case Management Plan setting the deadline to amend

and join parties on January 17, 2023. [Doc. 23].

The present “Response to Defendants and Motion for Entry of Default”

appears to reply to the Defendants’ Response opposing entry of default.

[Doc. 22]. This document is dated October 12, 2022, and was received by

the Court on November 21, 2022, after the Motion for Entry of Default had

been denied. [Docs. 22]. It is, therefore, moot. In any event, it would not

have altered the outcome of the Court’s November 9 Order had the Court

timely received it.

In his Motion to Strike, the Plaintiff asks the Court to strike several

affirmative defenses from the Defendants’ Answer as insufficient. [Doc. 25].

He disputes the merit of the exhaustion defense, argues that the Defendants

are not entitled to qualified immunity, and argues that service of process on

1 See Houston v. Lack, 487 U.S. 266, 276 (1988) (establishing the prisoner mailbox rule);

Lewis v. Richmond City Police Dep’t, 947 F.2d 733 (4th Cir. 1991) (applying prisoner

mailbox rule to § 1983 case).

Defendants was sufficient. [Id.]. The Defendants filed a Response opposing

the Motion to Strike.2 [Doc. 26]. The time to reply has expired.

The Plaintiff does not certify in the Motion to Strike that he attempted

to confer with defense counsel before filing the Motion. The lack of

certification alone warrants the denial of the Motion. See 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.”).

The Motion to Strike also fails on the merits. Federal Rule of Civil

Procedure 12(f) provides that “[t]he court may strike from a pleading any

insufficient defense....” Fed. R. Civ. P. 12(f); see also Waste Mgmt.

Holdings, Inc. v. Gilmore, 252 F.3d 316, 347 (4th Cir. 2001) (“[A] defense that

might confuse the issues in the case and would not, under the facts alleged,

constitute a valid defense to the action can and should be deleted.”) (citation

omitted). “The purpose of a Rule 12(f) motion to strike is to avoid the waste

of time and money that arises from litigating unnecessary issues.” Simaan,

2 The Defendants’ Motion to Strike that is included in the Response will be disregarded

because it was not filed as a separate pleading. See LCvR 7.1(c)(2) (“Motions shall not

be included in responsive briefs. Each motion must be set forth as a separately filed

pleading”).

Inc. v. BP Prods. N. Am., Inc., 395 F. Supp. 2d 271, 278 (M.D.N.C. 2005)

(citing Buser v. Southern Food Serv., Inc., 73 F. Supp. 2d 556, 559 (M.D.N.C.

1999)). “Although courts have broad discretion in disposing of motions to

strike, such motions are generally viewed with disfavor because striking a

portion of a pleading is a drastic remedy and because it is often sought by

the movant simply as a dilatory tactic.” Chapman v. Duke Energy Carolinas,

LLC, No. 3:09-cv-37-RJC, 2009 WL 1652463, at *1 (W.D.N.C. June 11,

2009) (quoting Waste Mgmt., 252 F.3d at 347) (internal quotation marks

omitted). “[C]ourts generally refrain from striking affirmative defenses absent

a showing that not doing so would unfairly prejudice the movant.” Lockheed

Martin Corp. v. United States, 973 F. Supp. 2d 591, 592 (D. Md. 2013); Clark

v. Milam, 152 F.R.D. 66, 70 (S.D. W. Va. 1993) (“Even where technically

appropriate and well-founded, motions to strike defenses as insufficient are

often denied in absence of a showing of prejudice to the moving party.”)

(citation and internal quotation marks omitted). Here, the Plaintiff merely

expresses his disagreement with the merit of several of Defendants’

affirmative defenses. He has failed to demonstrate an adequate justification

for striking any of the defenses, or that not doing so would unfairly prejudice

him. Accordingly, the Motion to Strike is denied.

On January 13, 2023, the Plaintiff filed the Motion to File Amended

Complaint in which he seeks leave to add the Mecklenburg County Detention

Center (MCDC) as a defendant. [Doc. 28]. A plaintiff may amend the

complaint once as a matter of course within 21 days after serving the

complaint, or within 21 days after service of a responsive pleading or 21 days

after service of a motion under Rule 12(b), (e), or (f), which is earlier. Fed.

R. Civ. P. 15(a)(1). A plaintiff may subsequently amend with permission from

the court which “shall be freely granted when justice so requires.” Fed. R.

Civ. P. 15(a)(2). As a preliminary matter, the Plaintiff attempts to amend the

Complaint in a piecemeal fashion, which will not be allowed. Further, the

MCDC is not a “person” subject to suit under § 1983. See Davis v.

McFadden, No. 3:21-CV-00449-MR, 2021 WL 5407855, at *2 (W.D.N.C.

Nov. 18, 2021); Brooks v. Pembroke City Jail, 722 F.Supp. 1294, 1301

(E.D.N.C. 1989) (“Claims under § 1983 are directed at “persons” and the jail

is not a person amenable to suit”). Therefore, amendment that the Plaintiff

proposes would be futile and his Motion is denied.

Finally, the Plaintiff asks the Court to appoint counsel to represent

him because: he is unable to afford counsel; his imprisonment has greatly

limited his ability to litigate; the issues involved in the case are complex and

layered due to the numerous Defendants and necessary investigation; the

facility policies and COVID-19 outbreak restrictions have affected Plaintiff’s

ability to investigate, research, and prepare timely; he believes that his status

as a prisoner will cause him to face “delay, impediment and possible

stigmatization” should he be forced to conduct discovery himself; he has

limited knowledge of the law and limited access to law library facilities; the

case will likely involve conflicting testimony and testimony from Plaintiff; and

counsel would be better able to present evidence and to cross-examine

witnesses. [Id. at 1-2].

There is no absolute right to the appointment of counsel in civil actions

such as this one. Therefore, a plaintiff must present “exceptional

circumstances” in order to require the Court to seek the assistance of a

private attorney for a plaintiff who is unable to afford counsel. Miller v.

Simmons, 814 F.2d 962, 966 (4th Cir. 1987). Here, the Plaintiff has failed to

demonstrate the existence of exceptional circumstances that would warrant

the appointment of counsel, and his Motion is denied.

IT IS, THEREFORE, ORDERED that:

1. Plaintiff’s “Response to Defendants and Motion for Entry of

Default” [Doc. 22] is DENIED AS MOOT.

2. Plaintiff’s Motion to Strike [Doc. 25] is DENIED.

3. Plaintiffs Motion for Appointment of Counsel [Doc. 27] is

DENIED.

4. Plaintiffs Motion to File Amended Complaint [Doc. 28] is

DENIED.

IT IS SO ORDERED.

Signed: January 25, 2023

Martifi Reidinger ee

Chief United States District Judge MS