CLARK v. BRITT et al, No. 1:2018cv00493 - Document 126 (M.D.N.C. 2021)

Court Description: MEMORANDUM OPINION, ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE. IT IS THEREFORE ORDERED that Plaintiff's Motion [Doc. #119] seeking leave to file a Response brief in excess of the Court's pag e limits is granted, Plaintiff's Motion to Exercise Jurisdiction [Soc. #103] is granted to the extent that all of the claims have been addressed, and Plaintiff's Motion for Leave to Subpoena North Carolina's Commissioner of Prisons [Do c. #102], Motion [Doc. #112] seeking sanctions, and Motion for Appropriate Relief [Doc. #118] are denied. IT IS RECOMMENDED that Plaintiff's Motion for Summary Judgment [Doc. #97] be denied, that the Motion for Summary Judgment [Doc. #108] file d by a Defendants Bartee, Britt, Covington, Gerald, Hammonds, Lochlear, Locklear, McClean, Mewborn, Poole, and Wallace be granted, and that the action be dismissed as to these Defendants. IT IS FURTHER RECOMMENDED that Plaintiff's claims agains t Defendants Almodovar, Collins, and Chavis be dismissed pursuant to 28 U.S.C. 1915(e)(2) for failing to state a claim upon which relief may be granted except for the remaining claims as to Defendant Almodovar alleging malicious prosecution under sta te and federal law. IT IS ORDERED that Plaintiff's Motion for Default Judgment [Doc. #86] is treated as a Motion for Entry of Default and granted as to those remaining claims against Defendant Almodovar in light of her failure to respond, and t hat the Clerk enter default and provide notice to Defendant Almodovar. IT IS RECOMMENDED that if Defendant Almodovar does not move to set aside the default and for appointment of pro bono counsel, or otherwise object this Order and Recommendation by April 15, 2021, that Plaintiff's second Motion for Default Summary Judgment [Doc. #100] be granted with an award to Plaintiff of nominal damages of $1.00 and no punitive damages. IT IS FURTHER RECOMMENDED that the Motion for Temporary Res training Order and Preliminary Injunction [Doc. #123] be denied. FINALLY, IT IS ORDERED that this case is STAYED until April 15, 2021, in light of the Covid-19 pandemic and related lock-downs and restrictions at state correctional facilities, in order to allow Defendant sufficient time to receive the Recommendations and present objections. Objections must be filed by April 15, 2021. Signed by MAG/JUDGE JOI ELIZABETH PEAKE on 2/22/21. (Garrett, Kim)