LANNIE BLANE SIMPSON v. HASSAN et al

Filing 71

MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE JOE L. WEBSTER signed on 7/16/2014, recommending that the court GRANT Defendant DOC's motion to dismiss (Docket Entry 65 ) and GRANT Defendant Martin's Motion for Summary Judgment (Docket Entry 67 ). (Daniel, J)

IN THE UNITED STATES DISTRIÇT COURT
FOR THE MIDDLE DISTRICT QF NORTH CAROLINA
LANNIE BLANE, SIMPSON,
Plaintiff,

v
DR. SAMI HÂSSAN, et

al.,

Defendants.

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1:08CV455

MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE IUDGE
This mattet is before the Court on a motion to dismiss by Defendant Notth Catolina

Department

of Cottections ("DOC"). (Docket Entry 65.)

,{.lso before the Court is

Defendant Billie Martin's motion for summary judgment. (Docket F;ntry 67.) Plaintiff has

not responded to Defendants' motions. For the reasons that follow, the undersigned
tecommends that Defendants' motions (Docket Entries 65, 67) be granted.
BACKCROUAüD

Plaintiff, a prisonet of the State of North Caroltna, filed this action pursuant to 42
U.S.C. S 1983 onJuly 11,,2008. (DocketE.rt"y

amended Complaint, essentially alleging

2.) On September 22,2}}9,Plaintiff filed an

that the DOC and its medical personnel

at

Albemade Corectional Institution ("ACI") were deliberately indiffetent to PlaintifPs back

condition in violation of the Constitution and the Americans with Disabilities Act (ADA).
(See

Am. Compl., Docket Ent"y 18-2.) Plaintiff seeks injunctive telief ordedng the DOC,

and its employees,

to schedule Plaintiff to be seen by a doctot or a qualifìed spine surgeon,

and futthet ordedng DOC medical staff to follow all orders, protocols

and

recommendations

of specialists. (Id.) Plaintiff also

seeks reimbursement

of his fìling

fees,

postage, and othets fees associated with this action and he seeks to be awatded medical gain

tmo

(Id.)

On February 1.5, 201,3, Defendant Ms. Sami Hassan filed a motion fot summary

judgment. (Docket Entry 53.) The undetsigned recommended that the Coutt grant
Defendant Hassan's motion for summary judgment.l (Jee Docket Entry 58.) On November
26,201,3, Defendant DOC filed the instant motion to dismiss

that "[e]ven

if Plaintiff

stated a clatm under the

pocket Entty 65) and atgued

ADA, his release from DOC custody . . .

tenders his claims for injunctive relief moot.2" (Id. at

4.) Defendant Mattin filed the instant

motion for summary judgment, adopting by teference Defendant Hassan's arguments in
support of summary judgment and futher arguing the issue of mootness. (Jee Docket E,ntry

67.) On Novembet 27,201,3, two "Roseboro Letters"3 were sent to Plaintiff at the address
on file with the Coutt (at '.A.CI), infotming Plaintiff that dispositive motions had been filed
and advising him

of the consequences of failing to respond. (Docket Enties

Plaintiff did not fìle a tesponse. On December 9,
address he provided

201,3,

69,70.)

mail directed to Plaintiff at the ACI

to the Court was returned "Undeliverable-Released." (Docket Etrtty

dated Decembet 9,201,3.) To date, Plaintiff has not provided notice of a new addtess to the

Cout.
t This tecommendation

is currently pending before the district court judge fot a ftnal order.
In support of its ârgument, Defendant cites North Caroltna Depattment of Public Safety's website
which indicates that Plaintiff was teleased on or about May 28,201,3. (See
2

htq://webapps6.doc.state.nc.us/opi/viewoffender.do?method=view&offendetlD=0371015&seatc
hOffenderld=037101S&listud=pagelistoffendersearchresults&lisçage=1
(astvisitedJuly 15,
2014)).

3 A notice sent pursuânt to Roseboro a. Garrison, 528 F.2d 309 (4th Cir. 1975)
of his right to file responses to dispositive motions filed by defendants.
2

advis es a pro se plainttff

DlJCUJJIOA.I
Because Plaintiff "failfed] to file a response fto Defendants' motions] within the time

required by fthis Court's Local Rules], the motion will be considered and decided as an
uncontested motion, and ordinadþ

7.3ß);

see

will be gtanted without further notice. M.D.N.C.

also Kiaetic Conceþts, Inc. u. ConuaTec 1ør:,

No. 1:08CV918,201'0 WL

R.

1'667285, at x6-8

(À4.D.N.C. Apr. 23,201.0) (unpublished) (analyzing this Court's Local Rules 7.3(Ð,7.2(a),

and 7.3ft) and discussing authority supporting ptoposition that fatl:ulre to respond to
argument amounts

to

concession).a The possibility that Plaintiff failed

to

receive

Defendants' instant motions does not affect the proptiety of the Court summarily granting
judgment in favot of Defendants based on Plaintiff s failure to tespond.

See

lrabor u. O'Nee/,

No. A3-97-60, 1998 \)ØL 1780650, at *1 (D.N.D. March 10, 1998) (unpublished) ("One who
does not keep the Court advised

of his current

foreclose an opposing p^rry from taking

allow, for example as here, obtaining

addtess should

not theteby be able to

full advantage of the ptocedutes which the Rules

dings on motions to dismiss, ot fot

summary

judgment.") (internal citation omitted).s

+ Plaintiffls status âs a pro se litigant does not excuse his inaction. "r\s the United States Supreme
Court obsewed n McNeil a. United States,508 U.S. 1.06,1.1.3 (1,993), '[the Supteme Court] ha[s] never
suggested that procedural rules in ordinary civil litigation should be interpreted so as to excuse
mistakes by those who proceed without counsel.' Accotdingly, pro se litigants are not entitled to a
general dispensation from the rules of procedure or court-imposed deadlines." Dewitt a. Hulchins,
309 F. Srrpp. 2d743,748-49 (I\4.D.N.C. 2004) (nternal patallel citations and second set of internal
quotation marks omitted).
s Ârguably, Plaintiffs failure to provide an updated addtess to the Court also constitutes grounds
for judgment against htrn. (See, e.g., IWohqu. Chater, No. 95-2539,1996WL 2331.4, at*1' (4th Ctt. Jan.
71, 1,996) (unpublished; decision without opinion, 7 4 F .3d 123\ @ffttming otdet ftom disttict coutt
"disrnissing þlaintiffs] case for want of prosecution and for failing to keep the court informed of
his change of addtess"); Hibbeø u. Apfe[ No. 99CIV4246(S.,{,S), 2000 !ØL 977683, at *2 (S.D.N.Y.
Oct.23,2007) (unpublished) ("It is also plaintiffs obligation to inform this Court's Pro Se Ofhce of
any change of address . . . . Even though plaintiff did not teceive this Court's Ordet þecause it was
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Alternatively, Defendant Martin is entitled

to

summary judgment and Defendant

DOC is entitled to dismissal based on grounds of mootness due to PlaintifPs release from
custody. Plaintiffs Complaint

seeks

injunctive telief; thus, "as a genetal rule, a prisoner's

transfer or release from a patttcular prison moots his claims fot injunctive and declaratory
relief with respect to his incarcenion there." Rendelman

u. Roøse,569

F.3d 1,82,1,86 (4th Cir.

2009); Incømaa u. Orynint,507 F.3d 281., 286-87 (4th Cu. 2007) ("Mootness questions often

arise

in

cases involving inmate challenges

to prison policies ot conditions, and courts,

including our own, have held that the ttansfet of an inmate . . . to a diffetent unit or location
where he is no longer subject

to the challenged policy, ptactice, ot condition moots

claims fot injunctive . . . ."); Clal

u.

his

Mìller,626 tr.2d 345,347 (4th Cir. 1980) ("Plaintiff Clay's

prayer for injunctive telief is moot because he has served his sentence and was teleased . .

.");

Freeman u. Johnson,961.

tr.2d

21,1,,

.

at*1. (4th Cn. 1,992) (unpublished; decision without

opinion) (declaratory and injunctive telief claims moot aftet plaintiff released on patole). To
the extent Plaintiff seeks what appeârs to be the equivalent of "attorney's fees," he has not
shown that he is a prevailing party prlrsuant to 42 U.S.C. S 1988. Hewitt u. Helms,482 U.S.
755,759 (1987).

returned undelivered], defendant may nonetheless ptevail on its motion to dismiss for failure to
ptosecute"); Sambe u. Gonqales, No. 9:06CV21.0,2006WL3751,1.53,at *1 (E.D.Tex. Dec. 1,5,2006)
(unpublished) ('A pro se pdsoner's failure to infotm a court of his change of addtess-and
specifically, return of a pro se prisoner's mail to the coutt, as undeliverable-indicates a failute to meet
his obligation to press forward with the litigation and failute to prosecute his case expeditiously.")
4

co¡¡cl-Ul10¡l
Because

Plaintiff failed to tespond to Defendants' motions, or altetnatively,

as a

tesult

of his telease rendering his injunctive relief claim moot,

IT IS HEREBY RECOMMENDED
motion

to

that the court GRANT Defendant DOC's

dismiss (Docket Entry 65) and GRANT Defendant Martin's Motion for

SummaryJudgment. (Docket Ertry 67.)

Joe L. Webstet
United States Magistrate Judge

Dutham, Notth Caroltna
JuJy 1,6,201,4

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