WONG v. GUILFORD COUNTY SHERIFF DEPARTMENT

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

GERALD L. WONG and SUSAN H. WONG, )

)

Plaintiffs, )

)

v. ) 1:23cv223

)

GUILFORD COUNTY SHERIFF )

DEPARTMENT, et al., )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

This case comes before the Court on (i) the “Motion to Amend

Pleadings and Join Guilford County N.C. and Deputy Steven Jenkins”

(Docket Entry 60)1 (the “Amendment Motion”) and (ii) the “Motion to

Compel Discovery from Guilford County N.C. Sheriff Dept.” (Docket

Entry 59) (the “Discovery Motion”). For the reasons that follow,

the Court will deny the Amendment Motion and the Discovery Motion

(collectively, the “Motions”).2

1 For legibility reasons, this Opinion generally omits all-

cap, underscored, bold, highlighted, and/or italicized font in

quotations from the parties’ materials.

2 For the reasons stated in Deberry v. Davis, No 1:08cv582,

2010 WL 1610430, at *7 n.8 (M.D.N.C. Apr. 19, 2010), the

undersigned United States Magistrate Judge will enter an order,

rather than a recommendation, on the Amendment Motion. See also

Everett v. Prison Health Servs., 412 F. App’x 604, 605 & n.2 (4th

Cir. 2011) (treating motion to amend as nondispositive motion

subject to magistrate judge’s order). The undersigned similarly

may enter an order as to the Discovery Motion. See Escalante v.

Anderson Cnty. Sheriff’s Dep’t, 698 F. App’x 754, 755 (4th Cir.

2017) (same re discovery motion).

BACKGROUND

Alleging a claim under “Title 42 U.S.C. 1983” for “[u]nlawful

search and seizure” (Docket Entry 1 at 3),3 Gerald L. Wong (the

“Plaintiff”) and Susan H. Wong (collectively, the “Plaintiffs”)

sued various defendants, including the Guilford County Sheriff’s

Department (the “Sheriff’s Department”), “James John Winiarski,” a

“Former Guilford County Deputy,” “S. Jenkins,” a “Guilford County

Deputy” (id. at 2-3), and “Guilford County Sheriff Danny H. Rogers”

(Docket Entry 3 (the “Amended Complaint”) at 2).4 Prior to

initiation of discovery, the parties filed multiple motions to

dismiss and for summary judgment and Plaintiff additionally moved

to compel discovery. (See, e.g., Docket Entry 39 (the

“Recommendation”) at 1-8 (detailing procedural background).)

As relevant to the Motions, the Recommendation explained that

Plaintiffs’ claim against the Sheriff’s Department failed as a

matter of law because “the Sheriff’s Department is not a legal

entity subject to suit under the law of North Carolina.” (Id. at

21 (brackets and internal quotation marks omitted).) The

Recommendation further observed that Plaintiffs’ official-capacity

claims failed because, inter alia, “the Amended Complaint contains

3 Docket Entry page citations utilize the CM/ECF footer’s

pagination.

4 Plaintiffs sued Deputies Winiarski and Jenkins in their

individual capacities and all remaining defendants in their

official capacities. (See Docket Entry 39 at 2-3 & n.3.)

2

no facts suggesting that ‘the commanders’ acted pursuant to any

official policy or custom in making [the challenged] determination,

as required for a viable official-capacity claim” (id. at 23

(citation omitted)), and “the commanders’ post-incident

determinations regarding the propriety of the deputies’ actions in

arresting [Plaintiff] did not cause the allegedly unlawful arrest”

(id. (emphasis in original)). The Recommendation then concluded

that “qualified immunity shields Deputy Jenkins from Plaintiffs’

claim that he arrested [Plaintiff] without probable cause.” (Id.

at 39.) In this regard, the Recommendation explained that, given

the allegations in the Amended Complaint and video footage of the

incident, “Deputy Jenkins’ decision to assist Deputy Winiarski was

objectively reasonable in light of the circumstances and existing

law.” (Id. (internal quotation marks and brackets omitted).)

Accordingly, the Recommendation advised that the Court dismiss all

claims other than Plaintiff’s “claim against Deputy Winiarski for

arrest without probable cause.” (Id. at 40.)

As for Plaintiff’s motion for discovery, the Recommendation

explained that “the parties have not yet engaged in a conference

under Rule 26(f) of the Federal Rules of Civil Procedure (the

‘Rules’) and the Court has not yet entered a Rule 26(f) case

management order, so discovery in this case has not commenced.”

(Id. at 8 (internal quotation marks, citation, and brackets

omitted); see also id. at 10 (“[T]he parties have not yet begun

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discovery.”).) The Recommendation further noted that, under this

Court’s Local Rules, “[d]iscovery shall not commence until entry of

the scheduling order.” (Id. at 10 (internal quotation marks

omitted).) The Recommendation thus denied Plaintiff’s motion for

discovery as premature. (See id. at 39-40; accord id. at 12.)

Notably, in addressing the various motions, the Recommendation

reiterated the importance of the Rules and Local Rules. (See,

e.g., id. at 11-12.) Of particular relevance, the Recommendation

explained that the prerequisites for any motion to compel discovery

“include a [Rule 37(a)] certification that the movant has in good

faith conferred or attempted to confer with the person or party

failing to make disclosure or discovery in an effort to obtain it

without court action.” (Id. at 12 n.6 (internal quotation marks

omitted).) The Recommendation further emphasized that plaintiffs

“may not simply add allegations to their already existing

complaint,” but instead “must submit a proposed amended complaint

that contains all claims they intend to bring in this action

against all the defendants they intend to sue.” (Id. at 24

(internal quotation marks and brackets omitted); see also id.

(explaining that “plaintiffs may not amend their complaint in

piecemeal fashion” (internal quotation marks and brackets

omitted)).) As such, the Recommendation noted, “a plaintiff is

bound by the allegations contained in his complaint and cannot,

through the use of motion briefs, amend the complaint.” (Id. at 23

(internal quotation marks and brackets omitted).)

Plaintiff objected to the Recommendation. (See Docket Entry

41.) In his objections, Plaintiff indicated that he “ha[d]

recently obtained data from” certain open records requests “that

list nearly 500 reports of use of force in the last two years by

the Sheriff[’s] Dep[artment] in which only 5 were deemed

‘[u]njustified.’” (Id. at 3.) Per Plaintiff, “these types of

figures defy reality and therefor[e] manifest deliberate

indifference to the rights of citizens.” (Id.)

Thereafter, the Court (per United States District Judge

William L. Osteen, Jr.) adopted the Recommendation. (Docket Entry

43 at 2.) Accordingly, the Court dismissed all claims other than

Plaintiff’s “claim against Deputy Winiarski for arrest without

probable cause,” which the Court allowed to proceed. (Id. at 3.)

The following day, the Clerk scheduled a pretrial conference for

late March, nearly two months away. (See Docket Entry 44 (the

“Notice”) at 1.) Nevertheless, a mere five days later, Plaintiff

filed a motion to compel discovery, without the required Rule 37(a)

certification. (See Docket Entry 45 at 1-3.) The Court (per the

undersigned United States Magistrate Judge) summarily denied

without prejudice Plaintiff’s motion, “pursuant to Local Rule

7.3(k), for failure to comply with the briefing requirement under

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Local Rule 7.3(a) and (j).” (Text Order dated Feb. 7, 2024.) Of

particular note, the Court

elected to exercise its discretion to summarily deny

[that m]otion because, in addition to Plaintiff’s failure

to file the r[e]quired brief, Plaintiff must, in the

first instance, seek discovery from the remaining

[d]efendant and/or via subpoenas to non-parties (not by

motion to the Court) and Plaintiff generally must wait to

pursue such discovery until after the Court enters a

scheduling order (which will not occur until after the

Court receives the parties’ initial pretrial

conference-related filings as directed in [the] Notice

and, if necessary, conducts the initial pretrial

conference as set in [the] Notice).

(Id.)

The remaining parties subsequently engaged in the initial

pretrial conference (see Minute Entry dated Mar. 25, 2024), and the

Court entered a scheduling order, which established May 23, 2024,

as the deadline for requesting leave to amend pleadings or add

parties (see Text Order dated Mar. 25, 2024). Plaintiff thereafter

filed a motion requesting permission to bring certain electronics

into the courthouse. (Docket Entry 58 at 1.) The Court

den[ied] without prejudice [that m]otion, which seeks

leave for Plaintiff “to bring his personal smart phone

which is used to monitor health conditions as well as

regular other smart phone functions and cell phone into

the courthouse for the duration of the above action.”

Plaintiff did not file a brief in support of [the

m]otion. “All motions, unless made during a hearing or

at trial, . . . shall be accompanied by a brief except as

provided in section (j) of [Local R]ule [7.3].” M.D.N.C.

LR 7.3(a). The cross-referenced section does not list

motions seeking the relief sought in [the m]otion as

exempt from the briefing requirement. See M.D.N.C. LR

7.3(j). “A motion unaccompanied by a required brief may,

in the discretion of the Court, be summarily denied.”

M.D.N.C. LR 7.3(k). In this instance, the Court

6

exercises its discretion to summarily deny [the m]otion,

because Plaintiff not only failed to file the required

brief, but also failed to include the material elements

of a brief in [the m]otion (as provided under Local Rule

7.2(a)). Indeed, [the m]otion does not even comply with

the requirements for motions exempt from briefing,

including to “state good cause [for the relief requested]

and cite any applicable rule, statute, or other authority

justifying the relief sought.” M.D.N.C. LR 7.3(j); see

also M.D.N.C. LR 7.3(b) (requiring all motions to “cite

any statute or rule of procedure relied upon”). In

deference to Plaintiff’s status as a pro se litigant, the

Court has denied [the m]otion without prejudice; however,

that status does not entitle Plaintiff to exemption from

the Local Rules (or other applicable rules) and Plaintiff

should understand that, moving forward, the Court will

enforce all applicable rules without any special

dispensation for his pro se status.

(Text Order dated Apr. 30, 2024 (underscoring added) (ellipsis and

certain brackets in original).)

Meanwhile, the sole remaining defendant, Deputy Winiarski,

moved for judgment on the pleadings (see Docket Entry 47), which

motion Plaintiff opposed (see Docket Entry 50). Plaintiff

subsequently filed the Discovery Motion, which seeks “an order

compelling discovery from the [Sheriff’s Department] pursuant to

public information under § 132-1.” (Docket Entry 59 at 1.)

Shortly thereafter, on May 6, 2024, Plaintiff filed the Amendment

Motion, seeking

to join Guilford County (as Respondeat Superior) and

Deputy Steven Jenkins due to new evidence (in his

individual capacity) as a [d]efendant in these 42 USC

1983 cases [sic] under the same conditions for my

unlawful arrest that remain at issue as stated in the

Cause of [A]ction description and the erroneously charged

action of the [S]heriff[’s D]ep[artment].

7

(Docket Entry 60 at 4.) Three days later, however, Plaintiff and

Deputy Winiarski filed a stipulation of dismissal with prejudice of

“all claims brought by Plaintiff in this action against [Deputy]

Winiarski” (Docket Entry 61 at 1), triggering the termination of

the action in this Court’s CM/ECF System. Nevertheless, given the

pendency of the Amendment Motion, the Court has not yet entered a

judgment in this matter. (See Docket Entries dated May 9, 2024, to

present.)

The Sheriff’s Department responded in opposition to the

Discovery Motion (see Docket Entry 62) (the “Discovery Opposition”)

and Guilford County and Deputy Jenkins filed a joint opposition to

the Amendment Motion (see Docket Entry 63) (the “Amendment

Opposition”). Plaintiff failed to reply to the Discovery

Opposition (see Docket Entries dated May 13, 2024, to present), but

filed a “respon[se] to [the Amendment O]pposition” (Docket Entry 64

(the “Reply”) at 1). In the Reply, “Plaintiff now requests” that,

inter alia, “[s]hould Guilford County N.C. can not [sic] be held as

Respondeat Superior then Plaintiff asks that Sheriff Danny Rogers

be held as Respondeat Superior in his official capacity, as

Plaintiff believes other defendants were not formerly [sic]

discharged from Plaintiff[’]s Amended Complaint.” (Id. at 2.)

Plaintiff concludes the Reply by asking that the Court allow “this

action to continue based on the same facts as laid out in [three

separate sections of his Amendment Motion].” (Id. at 3.)

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DISCUSSION

I. The Amendment Motion

A. Relevant Standards

At the time that he filed the Amendment Motion, Plaintiff

could amend his pleadings “only with the opposing party’s written

consent or the [C]Jourt’s leave.” Fed. R. Civ. P. 15(a) (2). Under

Rule 15(a), “leave to amend a pleading should be denied” when,

inter alia, “the amendment would have been futile.” Laber v.

Harvey, 438 F.3d 404, 426 (4th Cir. 2006) (en banc) (internal

quotation marks omitted); see also Foman v. Davis, 371 U.S. 178,

182 (1962) (identifying “futility of amendment” as basis for

denying leave to amend). “Futility is apparent if the proposed

amended complaint fails to state a claim under the applicable rules

and accompanying standards.” Katyle v. Penn Nat’l Gaming, Inc.,

637 F.3d 462, 471 (4th Cir. 2011). Accordingly, a proposed

amendment fails for futility if it could not survive a Rule

12(b) (6) motion to dismiss. See Smith v. Bank of the Carolinas,

No. 1:llevl139, 2012 WL 4848993, at *3 (M.D.N.C. Oct. 11, 2012)

(citing United States ex rel. Wilson v. Kellogg Brown & Root, Inc.,

525 F.3d 370, 376 (4th Cir. 2008)).

B. Analysis

As an initial matter, despite repeated warnings, Plaintiff

failed to comply with the requirements for seeking leave to amend,

and amending, a pleading. For instance, this Court’s Local Rules

obliged Plaintiff to “attach [his] proposed amended pleading to the

[Amendment M]otion.” M.D.N.C. LR 15.1. Plaintiff did not do so.

(See generally Docket Entry 60.) Moreover, as the Court has

already explained, a party cannot amend its pleadings either

“through the use of motion briefs” (Docket Entry 39 at 23 (internal

quotation marks omitted)) or “in piecemeal fashion” (id. at 24

(internal quotation marks omitted)). Nevertheless, between the

Amendment Motion and Reply, Plaintiff expanded his requested

amendment to include the (re)introduction of a third defendant,

Sheriff Rogers. (Compare Docket Entry 60 (proposing claims against

Guilford County and Deputy Jenkins), with Docket Entry 64

(proposing additional alternative claim against Sheriff Rogers).)

These failures alone justify denial of the Amendment Motion. See,

e.g., M.D.N.C. LR 83.4(a) (authorizing sanctions, including “an

order striking” filing, for failure to comply with Local Rules).

In addition, Plaintiff’s proposed amendments qualify as

futile. Plaintiff seeks to reinstate his claim against Deputy

Jenkins based on the purportedly newly discovered evidence that

Deputy Jenkins (i) stated in his incident report that he placed

Plaintiff under arrest and (ii) “never stated that he heard

[Deputy] Winiarski say [Plaintiff] was under arrest,” which, in

Plaintiff’s view, means that Deputy Jenkins “therefore was not

assisting with the arrest but making the arrest” (Docket Entry 60

at 5). (See id.) Plaintiff included the relevant incident report

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with his Amendment Motion. (See id. at 14.)5 Notably, the

information in the Amendment Motion and incident report aligns with

information in an affidavit that Deputy Jenkins filed in this

matter more than ten months before Plaintiff filed the Amendment

Motion (see Docket Entry 26-3 at 2-3), belying any description as

newly discovered. Regardless, the purportedly newly discovered

evidence does not change the conclusion that “Deputy Jenkins’

decision to assist Deputy Winiarski was objectively reasonable in

light of the circumstances and existing law” and thus that

“qualified immunity shields Deputy Jenkins from Plaintiffs’ claim

that he arrested [Plaintiff] without probable cause.” (Docket

Entry 39 at 39 (internal quotation marks and brackets omitted); see

5 Per the incident report:

[o]n Friday 12/02/2022 at approximately 0955 hours,

[Deputy Jenkins] responded to assist Deputy Win[i]arski

on the Plaza Level Lobby at the Greensboro Courthouse

with a subject who was refusing to leave. Upon arrival

Deputy Win[i]arski was repeatedly giving instructions to

a male subject to leave. After making [his] way through

the rope barricades[, Deputy Jenkins] walked through the

door at the entrance. [Deputy Jenkins] observed Deputy

Win[i]arski requesting identification from the subject

numerous times. The subject refused to provide

identification. Deputy Win[i]arski reached into the

plastic basket to get his identification. At this time

the subject shoved [Deputy] Win[i]arski in his chest

area. [Deputy Jenkins] told the subject that he was

under arrest and he immediately began resisting arrest by

struggling, pulling away and refusing to place his hands

behind his back. . . .

(Id. (underscoring added).)

11

id. at 27-40 (analyzing claim and recommending its dismissal under

Rule 12(b)(6)).)

Plaintiff similarly tries to revive his official-capacity

claims, based largely on “ha[ving] received documents though [sic]

the open records web site of data concerning ‘Justifiable’ uses of

force,” which reveal a very small percentage of cases “were deemed

‘unjustified[,’]” which “[t]o [Plaintiff] is incredibly

unbelievable.” (Docket Entry 60 at 6.) As with the ostensibly new

evidence regarding Deputy Jenkins, information showing that

officers classified only a small percentage of use of force

incidents as “unjustified” does not constitute new evidence.

(See Docket Entry 41 at 3 (confirming Plaintiff’s prior knowledge

of that information).) Moreover, as the Court has already

explained, any post-incident classification of the relevant use of

force as justified rather than unjustified did not cause

Plaintiff’s arrest and thus would not “mak[e] Guilford County

complicate [sic] to the violation of [Plaintiff’s] civil rights”

(Docket Entry 60 at 6), necessitating dismissal of any such claim.

(See Docket Entry 39 at 23 (“[B]ecause the commanders’

post-incident determinations regarding the propriety of the

deputies’ actions in arresting [Plaintiff] did not cause the

allegedly unlawful arrest, Plaintiffs lack a viable Section 1983

claim against those officials.” (emphasis omitted)).)

12

In addition, Plaintiff seeks to add Guilford County and/or

Sheriff Rogers to this lawsuit based on theories of respondeat

superior. (See, e.g., Docket Entry 60 at 4; Docket Entry 64 at 2.)

However, “theories of respondeat superior or predicated solely on

a defendant’s identity as a supervisor . . . do not exist in

actions under [Section] 1983.” Allen v. Brooks, Pierce, McLendon,

Humphrey & Leonard, LLP, No. 1:20cv1173, 2021 WL 1617303, at *2

(M.D.N.C. Apr. 13, 2021), report and recommendation adopted, No.

1:20cv1173, 2021 WL 1616176 (M.D.N.C. Apr. 26, 2021), aff’d, 857 F.

App’ x 124 (4th Cir. 2021); see also Ashcroft v. Iqbal, 556 U.S.

662, 677 (2009). Further, Plaintiff’s request to add Guilford

County “as a defendant being the employer of the Sheriff[’s]

Department” (Docket Entry 60 at 4) misses the mark. “In North

Carolina, the Office of Sheriff is a legal entity, established by

the state constitution and state statutes, separate and distinct

from the Board of County Commissioners because a sheriff is elected

by the people, not employed by the county.” Little v. Smith, 114

F. Supp. 2d 437, 446 (W.D.N.C. 2000). “Thus, it is Sheriff

[Rogers], not [Guilford] County, who has the final decision making

authority over law enforcement policies of his office.” Id.; see

also N.C. Gen. Stat. § 153A-103(1) (“Each sheriff... elected by

the people has the exclusive right to hire, discharge, and

supervise the employees in his office.”).

13

In sum, Plaintiff’s Amendment Motion violates this Court’s

Local Rules and his proposed claims qualify as futile. The Court

will therefore deny the Amendment Motion.

II. The Discovery Motion

Despite repeated reminders regarding his obligation under this

Court’s Local Rules to file supporting briefs (see Text Orders

dated Feb. 7, 2024, and Apr. 30, 2024), Plaintiff failed to file a

brief in support of the Discovery Motion (see generally Docket

Entry 59). Plaintiff also failed to file the relevant discovery

requests (see id.), in contravention of Local Rule 26.1.

See M.D.N.C. LR 26.1(b)(3) (“Any party seeking to compel discovery

. . . must identify the specific portion of the material which is

directly relevant and ensure that it is filed as an attachment to

the application for relief.”). Similarly, notwithstanding the

Court’s prior recognition of the necessity of Rule 37

certifications (see Docket Entry 39 at 12 n.6), Plaintiff failed to

include a Rule 37 Certification in the Discovery Motion. (See

Docket Entry 59 at 1-5.) Per Local Rule 37.1,

[t]he Court will not consider motions and objections

relating to discovery unless [the movant] files a

certificate that after personal consultation and diligent

attempts to resolve differences the parties are unable to

reach an accord. The certificate shall set forth the

date of the conference, the names of the participating

[individuals], and the specific results achieved.

M.D.N.C. LR 37.1(a) (underscoring added). Given these (repeated)

failures, and the explicit warning to Plaintiff “that, moving

14

forward, the Court w[ould] enforce all applicable rules without any

special dispensation for his pro se status” (Text Order dated Apr.

30, 2024), the Court will deny the Discovery Motion. See M.D.N.C.

LR 83.4(a).6

CONCLUSION

Despite repeated warnings, Plaintiff failed to comply with the

Rules and Local Rules in bringing the Motions, and his proposed

amendments also qualify as futile.

IT IS THEREFORE ORDERED that the Discovery Motion (Docket

Entry 59) and Amendment Motion (Docket Entry 60) are DENIED.

This 29th day of January, 2025.

/s/ L. Patrick Auld

L. Patrick Auld

United States Magistrate Judge

6 In any event, given the denial of the Amendment Motion and

Plaintiff’s dismissal of all claims against Deputy Winiarski, the

sole remaining defendant, the Discovery Motion qualifies as moot.

See, e.g., Hubbell Inc. v. DMF, Inc., Civ. Action No. 6:11-794,

2013 WL 152641, at *5-6 (D.S.C. Jan. 15, 2013) (concluding that

granting dismissal motion moots motion to compel); see also, e.g.,

Asbury v. Tartarsky, No. 8:13cv3364, 2015 WL 1120081, at *19 & n.23

(D.S.C. Mar. 12, 2015) (explaining that granting summary judgment

would terminate action, mooting pending discovery motions), aff’d,

616 F. App’x 71 (4th Cir. 2015).

15