Pickens v. Hendricks

        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 the Plaintiff’s pro se Motion for 
Change of Venue [Doc. 85], Motion to Certify Order in Multiple Claim Case 
[Doc. 87], Motion for Consolidation of Actions [Doc. 89], and Motion for  
Sanctions [Doc. 92]; and on the Defendants Quentin Miller and Western     
Surety Company’s Motion to Substitute Attorney [Doc. 90].                 
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   
January  20,  2018  traffic  stop  involving  the  Plaintiff  and  his  passenger, 
Marcus Hyatt.1  The Complaint passed initial review on the Plaintiff’s claims 

1 Hyatt and his girlfriend, Ashely Barrett, who was detained in a separate vehicle stop, 
also filed an action in this Court, Hyatt v. Miller, Case No. 1:19-cv-00250-MR-WCM. 
against Defendants J.D. Lambert, Jeff May, and Katherine Lewis, who are   
all Buncombe County Sheriff’s Office (BCSO) deputies, for the traffic stop 

and 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 that 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].  An appeal is presently pending, Fourth Cir. Case No. 22-6891.   
The Court also related the present action to the Hyatt case at the   
Plaintiff’s request, and stayed this matter until Hyatt is resolved.2  [Doc. 50].  

Although the Court has entered a judgment in Hyatt, the Defendants in that 
matter are now litigating post-trial motions that involve issues of law and fact 


2 A jury reached a partial verdict at a 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).                                                  
that  are  common  to  the  instant  case  and  must  be  resolved  before  the 
litigation in this case resumes.  [See Doc. 61 (Status Report)].          

On November 14, 2022, the Court entered an Order that inter alia     
denied  the  Plaintiff’s  Motions  seeking:  relief  from  the  Order  granting 
Defendant  Hendricks’  Motion  to  Dismiss;  the  imposition  of  sanctions  on 

defense counsel; a change venue from this Court’s Asheville Division to its 
Charlotte Division; and the recusal of the undersigned.  [Doc. 82].       
Several new motions are now pending; they will be addressed in turn.  
II.  DISCUSSION                                                           

A.   Change of Venue                                                 
The Plaintiff again seeks this case’s transfer to the Court’s Charlotte 
Division.  [Docs. 85, 86].3  He repeats many of his previous arguments and 

they warrant no further discussion, as they were addressed in the Court’s 
November 14 Order.  [See Doc. 82].  The Court will briefly address the    
Plaintiff’s contentions that he presently lives in the Charlotte Division and 
plans to live in Charlotte; that the undersigned lied in the November 14 Order 

and falsely claimed that the Plaintiff filed the lawsuit in Asheville; and that 



3 The Plaintiff filed an “Addendum,” which is liberally construed as a Memorandum in 
support of the Motion for Change of Venue.  The Plaintiff is cautioned that piecemeal 
filings will not be accepted in future and may be disregarded or stricken. 
maintaining the action in Asheville will shift the burden of litigation on the 
Plaintiff, thus providing the Defendants with an advantage.               

The  Plaintiff  filed  this  action  addressing  incidents  that  allegedly 
occurred in Buncombe County, against the Buncombe County sheriff, law     
enforcement officers located in Buncombe County, and the sheriff’s surety; 

further,  an  attachment  to  the  Complaint  refers  to  the  Court’s  Asheville 
Division.  [See Doc. 1 at 2-3; Doc. 1-1 at 1 (referring to the Court’s Asheville 
Division)].  The Clerk opened the case in the Asheville Division on February 
3, 2021 in accordance with ordinary Court procedures.  See, e.g., United  

States District Court Western District of North Carolina Pro Se Litigant Guide 
§ I(A) (“If the defendant(s) reside in, or if the action on which the lawsuit is 
based occurred in one of the following counties, it is an Asheville Division 

Case: … Buncombe….”).  That the Plaintiff mailed the Complaint to the     
Charlotte Division’s Clerk’s Office is irrelevant.  See LCvR 5.2.1(a) (“Where 
conventional filing is permitted by the Administrative Procedures or by the 
assigned judge, all papers may be filed in Asheville, Charlotte, or Statesville, 

regardless of the division in which the case is pending.”).   The Plaintiff 
appeared to acknowledge that the case should be assigned to the Asheville 
Division.4  He did not object to the divisional assignment until more than a 
year and seven months later on September 4, 2022, when he sought a        

change of venue due to the undersigned’s alleged bias.  [Doc. 72].  The   
Plaintiff’s prior arguments regarding venue and recusal were denied, and his 
present expressions of disagreement are unavailing for the same reasons.  

[See Doc. 82].  The Plaintiff’s speculative and conclusory claims that the 
divisional assignment has shifted the burden of the litigation to him and has 
provided the Defendants with an advantage are rejected.  The Plaintiff’s  
present claims that he now lives in the Charlotte Division, and that he plans 

to live in Charlotte when he completes his sentence, are beside the point.   
As the Court previously noted, NCDPS would be responsible for transporting 
him to the relevant courthouse should the case proceed to trial while he is 

incarcerated.  The Plaintiff’s hypothetical safety concerns if he should be 
housed at the Buncombe County Detention Facility during a prospective trial 
at  the  Asheville  Courthouse,  or  his  supposed  plans  to  live  in  Charlotte 
following  his  release  from  prison  in  the  future,  are  speculative  and,  as 

previously discussed, could be addressed without a change of division.5   

4 [See, e.g., Doc. 1-1 at 1; Doc. 5 at 1 (Plaintiff’s Prisoner Administrative Remedy 
Statement stating that “[t]his cause of action arose at Asheville, NC….”)]. 

5  The  Plaintiff  is  currently  projected  to  be  released  from NCDPS  on  May  9,  2025.  
https://webapps.doc.state.nc.us/opi/viewoffender.do?method=view&offenderID=076538
[See Doc. 82].  The Plaintiff’s Motion seeking a change of venue is, therefore, 
again denied.6  [Id.].                                                    

B.   Motion to Certify Order in Multiple Claim Case                  
The Plaintiff asks the Court to certify the Orders granting Defendant 
Hendricks’  Motion  to  Dismiss  and  denying  Plaintiff’s  Motion  to  Alter  or 

Amend,  pursuant  to  Rule  54(b).    [Doc.  87].    He  argues  that  Defendant 
Hendricks’ status as a party will have a major impact on discovery; that  
Hendricks knew or should have known the falsity of certain statements in the 
warrant  application;  and  that  the  evidence  proves  Hendricks’  liability.  

Defendant Hendricks filed a Response [Doc. 93], and the Plaintiff has filed a 
Reply [Doc. 95].                                                          
Rule 54(b) permits a district court to enter final judgment as to one or 

more, but fewer than all claims in a multiclaim action, thus allowing an appeal 
on fewer than all claims in a multiclaim action.  Braswell Shipyards, Inc., 2 
F.3d 1331, 1335 (4th Cir. 1993).  The chief purpose of Rule 54(b) certification 
is to prevent piecemeal appeals when multiple claims are resolved in the  

course of a single lawsuit.  Id.                                          

9&searchLastName=pickens&searchFirstName=brandon&searchDOBRange=0&listurl=
pagelistoffendersearchresults&listpage=1 (last accessed Jan 10, 2023); Fed. R. Ev. 201. 

6 To the extent that the Plaintiff again seeks the Court’s recusal, it too is denied for the 
reasons previously discussed.  [Doc. 82].                                 
As a preliminary matter, Defendant Hendricks argues that the Motion  
should  be  denied  as  untimely  because  the  Plaintiff  filed  it  after  having 

initiated his appeal in the Fourth Circuit, and because it is severely tardy.7  
The Fourth Circuit has held that, absent prejudice to appellee, a district court 
may enter a 54(b) judgment after notice of appeal has been filed.  Harrison 
v. Edison Bros. Apparel Stores, Inc., 924 F.2d 530, 532 (4th Cir. 1991).  

Accordingly, the Defendant’s argument that the Motion should be denied    
simply because he filed his Notice of Appeal first, is rejected.          
In determining whether to grant a Rule 54(b) certification, the district 

court  must  determine:  whether  the  judgment  is  final,  that  is,  whether  it 
constitutes  “an  ultimate  disposition  of  an  individual  claim  entered  in  the 
course of a multiple claims action;” and whether there is no just reason for 

the delay in the entry of judgment.  Braswell, 2 F.3d at 1335.  However,  “[a]s 
a  general  proposition,  the  timely  filing  of  a  notice  of  appeal  confers 
jurisdiction in the court of appeals ‘and divests the district court of its control 
over those aspects of the case involved in the appeal.’”  Dixon v. Edwards, 




7 The Plaintiff filed the Notice of Appeal and the instant Motion to Certify on July 19, 2022 
and November 18, 2022, respectively.  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).      
290  F.3d  699,  709  n.  14  (4th  Cir.  2002)  (quoting  Griggs  v.  Provident 
Consumer Discount Co., 459 U.S. 56, 58 (1982)).                           

Any analysis of the Rule 54(b) factors would necessarily overlap the 
issues that the Fourth Circuit is presently considering on appeal.  Therefore, 
the Court will defer ruling on the Rule 54(b) Motion until the Fourth Circuit 

resolves the pending appeal, or grants a limited remand.  See, e.g., Quach 
v. Cross, 216 F. App’x 666 (9th Cir. 2007) (granting a limited remand for the 
district  court  to  consider  whether  a  decision  should  be  certified  as  an 
appealable final judgment under Rule 54(b), after finding that neither party 

would be prejudiced); N.W. Cole & Co. Ltd. v. Sage Sys., Inc., 823 F.2d 548 
(4th Cir. 1987) (dismissing an appeal after the district court declined to certify 
its judgment as final on limited remand).                                 

C.   Motion to Consolidate                                           
The Plaintiff asks the Court to consolidate the instant case with Hyatt 
pursuant to Rule 42(a).  [Doc. 89].                                       
Rule 42(a) provides that: “If actions before the court involve a common 

question of law or fact, the court may: (1) join for hearing or trial any or all 
matters at issue in the actions; (2) consolidate the actions; or (3) issue any 
other orders to avoid unnecessary cost or delay.”  Proper application of Rule 

42(a) requires the district court to determine “whether the specific risks of 
prejudice and possible confusion” from consolidation “were overborne by the 
risk of inconsistent adjudications ..., the burden on parties, witnesses, and 

available judicial resources posed by multiple lawsuits, the length of time 
required to conclude multiple suits as against a single one, and the relative 
expense  to  all  concerned  of  the  single-trial,  multiple-trial  alternatives.” 
Campbell v. Bos. Sci. Corp., 882 F.3d 70, 74 (4th Cir. 2018) (quoting Arnold 

v.  Eastern  Air  Lines,  Inc.,  681  F.2d  186,  193  (4th  Cir.  1982)).    The 
consolidation of actions is ordinarily within the discretion of the trial court.  
Mutual Life Ins. Co. v. Hillmon, 145 U.S. 285, 292 (1892).  A motion to   

consolidate “must always be timely,” and “must ordinarily be made before  
the trial of either one is commenced.”  Shooters Island Shipyard Co. v. Std. 
Shipbuilding Corp., 4 F.2d 101 (3d Cir. 1925).  Extreme untimeliness, by  

itself, supports the denial of a motion to consolidate.  Cheyenne-Arapaho 
Tribes of Indians of Oklahoma v. United States, 671 F.2d 1305, 1312 (Ct. Cl. 
1982).                                                                    
The Plaintiff’s Motion to Consolidate is extremely untimely.  The Hyatt 

case was tried before a jury in March 2021, and the Court resolved the issues 
on which the jury was deadlocked in August 2022.  See Hyatt, 2022 WL      
3130108.  Consolidating the actions at this juncture would not serve any  

productive purpose and, accordingly, the Motion to Consolidate is denied. 
D.   Motion for Sanctions                                            
The Plaintiff asks the Court to sanction Defendant Hendricks’ counsel8 

based on arguments contained in Hendricks’ Motion to Dismiss.  [Doc. 92].   
The party seeking Rule 11 sanctions must serve the motion on the     
opposing party at least twenty-one days before filing the motion with the 

district court, and sanctions may be sought only if the challenged pleading is 
not  withdrawn  or  corrected  within  twenty-one  days  after  service  of  the 
motion.  Fed. R. Civ. P. 11(c)(1)(A).  Compliance with the “21-day safe   
harbor”  rule  is  a  condition  precedent  to  the  imposition  of  sanctions.  

Brickwood Contractors, Inc. v. Datanet Eng., Inc., 369 F.3d 385, 393 (4th Cir. 
2004).  Thus, “Rule 11 Sanctions are not available when the moving party  
waits to serve the motion after the final disposition of the claim between the 

parties.”  Royal Ins. v. Lynnhaven Marine Boatel, Inc., 216 F.Supp.2d 562 
(E.D. Va. 2002); see Fed. R. Civ. P. 11, Application Notes (“Given the ‘safe 
harbor’ provisions …, a party cannot delay serving its Rule 11 motion until 
conclusion of the case (or judicial rejection of the offending contention)”). 

The Plaintiff filed the present Motion for Sanctions pursuant to the 
prisoner mailbox rule on December 8, 2022, more than seven months after   
the Motion to Dismiss was granted.  [Doc. 92 at 9].  The Plaintiff has thus 


8 The Plaintiff asserts this allegation against Eric Edgerton.            
failed  to  comply  with  the  Rule  11  safe  harbor  rule  and  the  Motion  for 
Sanctions is denied.                                                      

E.   Motion to Substitute Attorney                                   
Finally, Defendants Miller and Western Surety Company have moved     
to substitute counsel with a new attorney, because counsel of record has  

changed  employment.    [Doc.  90].    The  Motion  is  granted  and  these 
Defendants  will  be  allowed  to  substitute  Curtis  W.  Euler  in  place  of  J. 
Brandon Freeman.                                                          
III.  CONCLUSION                                                          

IT IS, THEREFORE, ORDERED that:                                      
  1. The Plaintiff’s Motion for Change of Venue [Doc. 85] is DENIED. 
  2. The Court DEFERS RULING on the Plaintiff’s Motion to Certify    

     Order in Multiple Claim Case [Doc. 87] until such time as the   
     Fourth Circuit resolves the appeal in Case No. 22-6891, or grants 
     a limited remand to this Court for consideration of the Motion. 
  3. The Plaintiff’s Motion for Consolidation of Actions [Doc. 89] is 

     DENIED.                                                         
  4. The Plaintiff’s Motion for Sanctions [Doc. 92] is DENIED.       
  5.  Defendants  Quentin  Miller  and  Western  Surety  Company’s   

     Motion to Substitute Attorney [Doc. 90] is GRANTED.             
IT IS SO ORDERED. 
            Signed: January 17, 2023 

            Martifi   Reidinger                  Ly 
            Chief United States District  Judge  AU, 

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