SIMMONS v. STUBBS et al

Filing 23

MEMORANDUM OPINION AND RECOMMENDED RULING - MAGISTRATE JUDGE re 20 MOTION to grant claim based on Defendants Default filed by KEVIN K. SIMMONS is DENIED, 17 MOTION to Dismiss filed by B. STUBBS be GRANTED and that Defendant Stubbs be dismissed from this action. Signed by MAG/JUDGE WALLACE W. DIXON on 8/19/11. (Wilson, JoAnne)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF NORTH CAROLINA

KEVIN K. SIMMONS,
Plaintiff, pro se,
v.
B. STUBBS, et al.,
Defendants.

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MEMORANDUM OPINION
RECOMMENDATION
AND ORDER
1:11CV291

This matter is before the court on the motion to dismiss of Defendant
Beverly A. Stubbs, Nurse Supervisor (docket no. 17). Plaintiff has responded to the
motion with a document which he has styled as “Motion to Grant Claim Based on
Defendants (sic) Default” (docket no. 20). Defendant Stubbs has filed her response
in opposition (docket no. 22). In this posture the matter is ripe for disposition. For
the reasons which follow, the motion to dismiss should be granted. Plaintiff’s motion
to grant, etc. will be denied.
BACKGROUND
Plaintiff’s complaint purports to allege a deliberate indifference claim against
Stubbs, “J. Umesi - M.D.,” and “C. Wyatt - P.A.” While Plaintiff was confined at the
Scotland Correctional Institution, he says that he had trouble with his hearing, he
suffered pain and an ear infection that has caused hearing loss in his left ear and
diminished hearing in the right ear, and he was seen by a nurse who scheduled him
a visit with the facility physician. After seeing the doctor, he was sent to Pinehurst

Medical Center for a hearing test which was “unsuccessful.” He has continued to
complain, but after seven and one-half months (“and counting”), he still suffers from
hearing loss. The nub of his complaint is that the defendants should be held
responsible for their lack of professionalism and their non-treatment.
Stubbs’ motion to dismiss challenges the complaint because it alleges no facts
indicating her involvement in the decisions about Plaintiff’s medical care, no facts
indicating her involvement in the care provided, and no facts detailing any act or
omission on her part. Rather, her motion says that she is named as a party only and
nothing else in the complaint points to her.
Plaintiff’s response to the motion is, in effect, that Stubbs “is in charge of the
medical department” and everything “has to come through her desk at some point
in time.” Response, p. 1 of 6 (docket no. 21). In addition, Plaintiff asserts that
Stubbs’ motion is out of time and that a default should be entered against her. In
short, Plaintiff seems to be relying on Stubbs’ supervisory position in his effort to
mount a claim against her.
ANALYSIS
Motion to Dismiss: Standard of Review (after Twombly and Iqbal)
The purpose of a motion to dismiss for failure to state a claim (under FED. R.
CIV. P. 12(b)(6)) is to test the sufficiency of the complaint - not to have the court
decide the merits of the action. Schatz v. Rosenberg, 943 F.2d 485, 489 (4th Cir.
1991); Food Lion, Inc. v. Capital Cities/ABC, Inc., 887 F. Supp. 811, 813 (M.D.N.C.
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1995). Generally, the court looks only to the complaint itself to ascertain the
propriety of a motion to dismiss. See George v. Kay, 632 F.2d 1103, 1106 (4th Cir.
1980). At this stage of litigation, a plaintiff’s well-pleaded allegations are taken as
true; and the complaint, including all reasonable inferences therefrom, are liberally
construed in the plaintiff’s favor. McNair v. Lend Lease Trucks, Inc., 95 F.3d 325,
327 (4th Cir. 1996).
A plaintiff need not plead detailed evidentiary facts, but he must give each
defendant fair notice of what the plaintiff’s claim is and the grounds upon which it
rests. See Bolding v. Holshouser, 575 F.2d 461, 464 (4th Cir. 1978). This duty of fair
notice under Rule 8(a) requires the plaintiff to allege, at a minimum, the necessary
facts and grounds that will support his right to relief. See Bell Atl. Corp. v. Twombly,
127 S. Ct. 1955, 1964-65 (2007).
A plaintiff “fails to state a claim upon which relief may be granted,” 28 U.S.C.
§ 1915A(b)(1), when the complaint does not “contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’ A claim has
facial plausibility when the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (emphasis added) (internal
citations omitted) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
"Where a complaint pleads facts that are ‘merely consistent with' a defendant's

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liability, it ‘stops short of the line between possibility and plausibility of entitlement to
relief." Id. (quoting Twombly, 550 U.S. at 557 (internal quotations omitted)).
This

s t andard

“demands

more

than

an

unadorned,

the-defendant-unlawfully-harmed-me accusation.” Id. “A pleading that offers ‘labels
and conclusions’ or ‘a formulaic recitation of the elements of a cause of action will
not do.’ Nor does a complaint suffice if it tenders ‘naked assertions' devoid of
‘further factual enhancement.’” Id. (internal brackets and citations omitted) (quoting
Twombly, 550 U.S. at 555, 557). In other words, “the tenet that a court must accept
as true all of the allegations contained in a complaint is inapplicable to legal
conclusions. Threadbare recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice." Id.1

Finally, in evaluating a complaint,

the court may anticipate affirmative defenses which are clear on the face of the
complaint. Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983); Nasim v. Warden, Md.
House of Corr., 64 F.3d 951, 954 (4th Cir. 1995) (en banc) (stating that a court may

1

Although the Supreme Court has reiterated that “[a] document filed pro se is to be
liberally construed and a pro se complaint, however inartfully pleaded, must be held to less
stringent standards than formal pleadings drafted by lawyers,” Erickson v. Pardus, 551 U.S.
89, 94 (2007) (internal citations and quotation marks omitted), the United States Court of
Appeals for the Fourth Circuit has “not read Erickson to undermine Twombly’s requirement
that a pleading contain more than labels and conclusions,” Giarratano v. Johnson, 521 F.3d
298, 305 n.5 (4th Cir. 2008) (internal quotation marks omitted) (applying Twombly standard
in dismissing pro se complaint). Accord Atherton v. District of Columbia Off. of Mayor, 567
F.3d 672, 681-82 (D.C. Cir. 2009) (“A pro se complaint . . . ‘must be held to less stringent
standards than formal pleadings drafted by lawyers.’ But even a pro se complainant must
plead ‘factual matter’ that permits the court to infer ‘more than the possibility of
misconduct.’” (quoting Erickson, 551 U.S. at 94, and Iqbal, 129 S. Ct. at 1950,
respectively)).

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apply common sense and reject fantastic allegations and/or rebut them with judicially
noticed facts). With these principles in mind, the court turns now to the motion to
dismiss.
A careful reading, indeed even a cursory reading of the complaint, shows that
Stubbs is correct in asserting in her motion that Plaintiff has advanced no allegations
as to her - either as to her involvement in the decisions about Plaintiff’s medical care,
or as to her involvement in the care provided, or as to any act or omission on her
part. As noted, she is named as a party only. Moreover, to the degree that Plaintiff
attempts to assign liability to Stubbs because she is a supervisor, the Fourth Circuit
Court of Appeals has said that supervisory liability may attach under Section 1983
if a plaintiff can establish three elements: (1) “that the supervisor had actual or
constructive knowledge that his subordinate was engaged in conduct that posed ‘a
pervasive and unreasonable risk’ of constitutional injury to citizens like the plaintiff”;
(2) “that the supervisor’s response to that knowledge was so inadequate as to show
‘deliberate indifference to or tacit authorization of the alleged offensive practices’”;
and (3) “that there was an ‘affirmative causal link’ between the supervisor’s inaction
and the particular constitutional injury suffered by the plaintiff.” Randall v. Prince
George’s County, 302 F.3d 188, 206 (4th Cir. 2002) (citing Shaw v. Stroud, 13 F.3d
791, 799 (4th Cir. 1994) (citations omitted)). Under the first prong of Shaw, the
conduct engaged in by the supervisor’s subordinates must be “pervasive,” meaning
that the “conduct is widespread, or at least has been used on several different
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occasions.” Id. Furthermore, in establishing “deliberate indifference” under Shaw’s
second prong, a plaintiff “[o]rdinarily . . . cannot satisfy his burden of proof by
pointing to a single incident or isolated incidents . . . for a supervisor cannot be
expected . . . to guard against the deliberate criminal acts of his properly trained
employees when he has no basis upon which to anticipate the misconduct.” Slakan
v. Porter, 737 F.2d 368, 373 (4th Cir. 1984). Deliberate indifference, however, may
be satisfied by showing “[a] supervisor’s continued inaction in the face of
documented widespread abuses.”

Id. To be sure, Plaintiff cannot meet this

standard. The court should therefore grant the motion to dismiss by Stubbs.
Last of all, to the extent that Plaintiff seeks an order from the court entering a
default against Stubbs, it is abundantly clear that Stubbs has timely responded to the
complaint. The motion for entry of a default will be denied.
CONCLUSION
In accordance with the foregoing, IT IS RECOMMENDED that the motion to
dismiss of Defendant Beverly A. Stubbs, Nurse Supervisor (docket no. 17) be
GRANTED and that Defendant Stubbs be dismissed from this action. Furthermore,
Plaintiff’s motion for entry of default against Defendant Stubbs is DENIED.

__________________________________
WALLACE W. DIXON
United States Magistrate Judge
August 19, 2011
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