SIMMONS v. STUBBS et al
Filing
32
MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE JOE L. WEBSTER on 2/6/2014; that the Court GRANT Defendant Umesi's motion to dismiss (Docket Entry 25 ) for failure to state a claim for deliberate indifference to a serious medical need under 42 U.S.C. §1983. (Sheets, Jamie)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
KEVIN K. SIMMONS,
)
)
)
)
)
)
)
)
)
Plaintiff,
v
B. STUBBS, et
a1.,
Defendant.
1,:1,1,CY291,
)
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE TUDGE
This matter is before the court on the motion to dismiss of Defendant Joseph Umesi,
M.D. ("Defendant Umesi"), (Docket Entry 25.) Plaintiff fìled
this motion. (Docket Entry 30.) This matter is ripe
a response
in opposition to
fot disposition. For the following
reasons, the court will recommend that Defendant Umesi's motion to dismiss be granted.
I.
BACKGROUND
On or about ,\ptil
1.3,201.1,
Plaintiff, a prisoner of the State of Notth Catolina, filed
a
complaint against Defendants B. Stubbs, Joseph Umesi and C. Wyatt pursuant to 42 U.S.C.
S
1gg¡.t (Docket Entty 2.) In his complaint, Plaintiff alleges that Defendants
acted with
delibetate indiffetence to Plaintiffs medical needs with tegards to heating loss.2 (Compl. fl
V, Docket F;ntry 2.) Plaintiff states that he filed a sick-call tequest in September
t
201,0 after
The electronic docket sheet in this matter indicates that "C. Wyatt" wâs not served and is not a
party to this action. (Jae Docket Entry 9.)
' The facß ate consftued in the light most favotable to Plaintiff as the non-movingp^nq. Randallu.
Unind Sutes,30 F.3d 51,8,522 (4th Cir. 1994).
having trouble with his hearing. (Id.) One week later, he was seen by a nutse who scheduled
Ptaintiff a visit with the physician. (Id.) Plaintiff was seen by Defendant Umesi a month
later and subsequently sent to Pinehurst Medical Center for a headng test which
unsuccessful.
(Id)
Plaintiff alleges that he continues to complain about his hearing
ptoblems and has not teceived a tesponse from medical
damages against
was
staff. (Id.) He
seeks monetary
Defendants. (Id.I VI.)
On July 14,201L, Defendant Stubbs fìled a motion to dismíss Plaintiffs complaint.
(Docket Entry 1,7.) On,\ugust1.9,201.1, a recommendation was entered to dismiss claims
against Defendant Stubbs.
7,
201,2,
(IM.-. Op. Recomm. and Otder, Docket F;nty 23.) On March
the Court adopted the Magisttate Judge's Recommendation and
Defendant Stubbs ftom this action. (See Orde4 Docket Entty
dismissed
31.) On August 26, 2011.,
Defendant Umesi filed a motion to dismiss which is now pending before the court. (Docket
Entry 25.)
II.
DISCUSSION
Defendønt Umesi'¡ Motion to Disniss Par¡aarut to Rale / 2(b)(5)
A.
Standard of Review
Defendant Umesi ârgues that dismissal is appropriate pursuant
to Fedetal Rule of
Civil 12(b)(5) fot insufficient service of ptocess. "A motion to dismiss undet Rule 12þ)(5) is
the appropriate means for challenging the mannet ot sufficiency of service of process."
Plant Genetic
tr., lt V. u. Ciba Seeds,933 F.Supp. 51.9,526
(À4.D.N.C. 1996) (citing Chilickl
u.
Schweiker,796 tr.2d 1131., 1,1,36 (9th Cir. 1986), reu'd on other groands,487 U.S. 412 (1,988)).
Once the sufficiency
of sewice of
process is challenged, the burden is on the plaintiff to
2
establish that service of ptocess has been completed in a manîet that complies with Rule 4
of the Fedetal Rules of Civil Procedute.
Id. (citation omitted.)
The Foutth Circuit
has
pteviously stated:
\X/hen the process gives the defendant actual notice
of the pendency of
the
action, the rules, in general, are entitled to a libetal consttuction. ìØhen thete is
ac¡nI notice, every technical violation of the rule or failute of strict
compliance m^y not invalidate the service of ptocess. But the rules ate thete
to be followed, and plain tequirements fot the means of effecting service of
process may not be ignoted.
Annco, Inc. u. Penrod-StaffirBldg.
S1ts.,
Inc.,733F.2d L087, 1089 (4th Cir. 1984). "Even
so,
courts generally allow pro re plaintiffs a chance to temedy technical insufficiencies in service
of ptocess."
Thomas u. Ne/ms,
No. 1:09-CY-491,
201,3
WL
59341,9, at
x1 (À4.D.N.C. Feb. 14,
201 3) (emphasis added).
The mannet in which a defendantm^y be served is governed by Rule 4 of the Fedetal
Rules of Civil Procedure. Service upon an individual within a judicial district in the United
States must comply
with Rule 4(e) which
states:
Unless federal law provides otherwise, an individual . . . m^y be served in
judicial district of the United States by:
a
(1) following state law for serving a summons in an action btought in
courts of genetal jurisdiction in the state where the district court is located
or whete service is made; or
(2) doing atry of the following:
(A) delivering a copy of the summons and of the complaint to the
individual petsonally;
(B) leaving a copy of each at the individual's dwelling or usual place of
abode with someone of suitable age and disctetion who tesides thete;
of
J
(C) deliveting â copy of each to an agent authorized by appointment or
by law to teceive service of process.
Fed. R. Civ. P. 4(e). N.C. Gen. Stat. $ 1A-1,, Rule
40
sets
out the manner in which service
upon anatural person may be made in the state of North Caroltna. The Foutth Citcuit
has
stated that "fa]bsent waiver or consent, a failure to obtain proper service on the defendant
depdves the court of petsonal jutisdiction over the defendant." Koeltler u. Dodwell, 152 F.3d
304, 306 (4th Cir.1,998) (citation omitted). In
North Carohna, "fa]lthough
^
return of service
showing sewice on its face constitutes prima fatie evtdence of service, such showing can be
tebutted by the affidavits
of more than one person
service was not made upon the person
545, 467 S.E.2d
showing unequivocally that proper
of the defendant." Crimslry u. Ne/nn, 342 N.C.
542,
92,94 (1,996) (emphasis in otiginal).
B. Analysis
Defendant Umesi argues that Plaintiff imptopetly served Defendant at his place of
employment by serving an individual unauthoÅzed to accept service on his behalf.
Q.f.
Mem. at 5, Docket Entry 26.) The record reflects that a summons and complaint was issued
to "J.Umesi, P.O. Box 1808, Laudnbutg, N.C. 28353-1,808, SCI #4860." (Summons at 1,
Docket Entry
6.)
,4. copy
of the Process
Receipt and Retutn was filed with the coutt
indicating that"P. Anderson" was served on May 24,201,1. (Ptocess Receipt and Retutn at
1, Docket Entry
8.)
The box indicating "[a] person of suitable age and disctetion then
tesiding in defendant's usual place of abode" was matked. (Id.)
In support of his motíon to
dismiss, Defendant Umesi fìled an afftdavit attesting that"'P. Andetson'has never tesided at
fDefendant Umesi's] 'usual place of abode,' not has Scotland Corectional Institution ever
been fDefendant Umesi's] 'usual place of abode."' (Jmesi Âff.
4
I
3, Docket Etttty
25-1,.)
Defendant Umesi futher indicated that "P. Anderson" was not his authotized agent, nor
was any other individual at the ptison authotized to accept service on his behalf. (Id.)
After review of the evidence, the Court concludes that Defendant Umesi has tebutted
the presumption that service was ptoper. Acceptance of service by an unauthotized
individual at Defendant Umesi's place of employment is not àn acceptable means of seryice.
Elkin¡ u. Broorue, 213 F.R.D. 273, 276 M.D.N.C. 2003). However, Defendant Umesi
received ac¡nI notice, and there is no indication that he would be ptejudiced by a libetal
construction
of Rule 4(-).,
See Thomas, 2013
WL
59341,9
at x1 (finding no ptejudice in
allowing the plaintiff an opportunity to cure service). Dismissal fot insufficient service of
process is, thetefore, inappropriate. Nevertheless, the undersigned recofiünends dismissal
of
this action for failure to state a claim based upon the reasons stated below.
Defendant Umesi's Motion to Dismis: Par¡aanî to Rale 12(b)(6)
A.
Standard of Review
Defendant argues that dismissal
Procedure 12(bX6).
is
appropriate pursuant
to Fedetal Rule of Civil
A motion to dismiss pursuant to Rule 12þ)(6) tests the sufficiency of
the complaint. E,dwards u. Citl of Goldsboro, 178 F.3d 23L, 243 (1999),
'\
complaint that does
not "contain sufficient factual matter, accepted as true, to 'state a claim to telief that
3
is
Pursuant to Rule 4(m), the Court must dismiss Plaintiffs Complaint or otder that sewice be
effectuated within a specified time period. See Fed. R. Civ. P. 4(m). Although the Coutt has
detetmined the Complaint should not be dismissed fot insufficient service of process, the Coutt
recommends dismissal on other grounds. Thus, gtanting Plaintiff an extension of trme to complete
service is not necessalT. See Krahenbahl u. Hlde Cnfl, Sch., Case No, 4:1,2-CY-1,70-BO, 2013 WL
1.1.63787 at n.2 @,.D.N.C. Mat. 20,2013) ("[I]n light of its findrng that plaintiff has failed to state a
claim under Rule 1,2þ)(6), the Coutt denies defendant's motion to dismiss fot failute to effect
proper service."); Mallard u. MV Transp., Inc., CIY. A. DKC 1,7-2997 ,2012WL 642496 at *2 (D. Md'
F eb. 27 , 2072) (" As a ptaciLcal matter, , . . it would make little sense to gtant Plaintiff an extension of
time to serve a complaint that fails to state a claim.")
5
plausible on its face"' must be dismissed. Ashnoft
Bell Atlantic u. Twonbþ,550
u.
Iqbal,556 U.S. 662,678 (2009) (quoting
U.S. 544, 570 Q007)). "A claim has facial plausibility when the
plaintiff pleads factt:iaI content that allows the court to dtaw the reasonable inference that the
defendant is liable for the misconduct." Id.;
LLC, 634 F.3d 7 54, 7 68 (4th Cir.
dismissed
if it does not
201,1)
see also Simmorc¡
u. United Mortg and I-.oan Inu.,
("On a Rule 12þ)(6) motion , a complaint must be
allege enough facts
to state a claim to relief that is plausible on its
face.") (citations and quotations omitted). The "court accepts all well-pled facts as ttue and
construes these facts
in the light most favorable to the plaintiff," but
"legal conclusions, elements
enhancementf,]
of a cause of
does not considet
action, and bare assettions devoid
unwarranted inferences, unreasonable conclusions>
Nernet Cheurolet, Ltd. u. Consømerffiirlcory 1nc.,591
or
of
factual
arguments."
F.3d 250, 255 (4th Cir. 2009) (citations
omitted). In other words, the standard requires a plaintiff to arlculate facts, that, when
accepted as true, demonsttate the plaintiff has stated
a clakn that makes it plausible he is
entitled to relief. Francis u. Giacomelli,588 F'.3d 186, 193 (4th Cir. 2009) (quoting Iqbal, 556
U.S. at 678,andTwombþ,550 U.S. at557).
Pro se complaints
^re
to be libetally
consttued
in
assessing sufficiency undet the
Federal Rules of Civil Ptocedute. Erick:on u, Pardw,551 U.S. 89,94 Q007). However, even
undet this liberal construction, "geneÍosity is not fantasy," afld the coutt is not expected to
plead a plarnttf?s claim
fot him.
Bender u. Sabarban Hosþ., Inc., 1.59
1ee8).
6
F.3d 186, 1,92 (4th
C1r.
B. Deliberate Indifference
InFarrneru. Brennan,511 U.S. 825 (1,994), the Supteme Coutt held that the Eighth
Amendment to the Constitution "ìmposes duties on þtison] officials who must ptovide
humane conditions
of
confìnement; ptison officials must ensure that inmates teceive
adequate food, clothing, sheltet, and medical cate, and must take teasonable measutes to
guarantee the safety of the inmates." Id. at 832 (internal quotation and citation omitted).
successful Eighth Amendment claim contains
two elements: the depdvation must
A
be,
objectively, "sufficiently serious," and the pdson offìcial must have demonsttated
a
"delibetate indiffetence to inmate health ot safety." Id. at834.
"Delibetate indiffetence is
^
vety high standard-a showing of mete negligence will
not meet it." Gralson u. Peed, 195 F.3d 692, 695 (4th Cit. 1,999). Rather, the "delibetate
indiffetence" prong requires Plaintiff to make "two showings:"
First, the evidence must show that the official in question subjectively
tecognized a substantial dsk of harm. It is not enough that the officets ¡hoald
haue recogntzed it; they actually must have petceived the tisk. Second, the
evidence must show that the official in question subjectively recogtized that
his actions were inapptoptiate in light of that dsk. As with the subjective
awareness element, it is not enough that the official sltould haue recogrized that
his action wete inapproptiate; the official actually ma¡î
actions were insufficient.
Parrish ex re/. Lee u. Cleueland,372 tr.3d 294,303 (4th
haue
tecognized that his
Cit. 2004) (intetnal citations
and
quotation marks omitted) (emphasis in original). "The subjective component thetefote sets
a paricularly high bar to recovery." Iko u. Shreue, 535 F.3d 225, 241 (4th Cit.
"'Deliberate indifference entails something more than mere negligence . . .
Smirh, 71, F.3d 1,62, L66 (4th
Cir. 1,995) (quoting Fanner 511 U.S. at 835).
."'
2008).
Sha,kka
"It requites
that
u.
a
prison offìcial know of and disregatd the objectively setious condition, medical need, ot dsk
7
of harm." Id. To constitute deüberate indifference, "the
incompetent, inadequate, or excessive as
treatment must be so gtossly
to shock the conscience or to be intoletable to
fundamental fairness." Miltìer u. Beom, 896 F.2d 848, 851 (4th Cir. 1990).4 Thus, "mete
negligence
ot malpractice" does not constitute delibetate indifference. Id. at 852. Similatly,
"[d]isagreements between an inmate and a physician over the inmate's proper medical cate
do not state a S 1983 claim unless exceptional circumstances ate alleged." If/rigbr u. Collins,
766 F.2d 841.,849 (4th Cir. 1935).
It is well
settled, thetefote, that a medical need sedous
enough to give rise to a constitutional claim involves a condition that places the inmate at a
substantial dsk of sedous harm, usually loss of life or petmanent disability, ot a condition for
which lack of treatment perpetuates severe pain. Farrzer,
51.1.
U.S. at 832-35.
C. Analysis
The Complaint fails to allege that Defendant Umesi was deliberately indifferent to
a
setious medical need. Accotding to the alleged facts, Plaintiff was seen by a nurse a week
after submitttnga sick-call request. (Compl.
llV.)
.,\ month latet, he was seen by Defendant
Umesi. (Id.) Platntiff was later sent to Pinehurst Medical Centet fot ahearing test which was
unsuccessful. (Id.) ,An attached exhibits indicates that an ENT recommendation is pending
approval from the Utilization Review Board.6 (Id. at 27.) Plaintiffs Complaint simply fails
to
state
a cLaim for deliberate indifference to a setious medical need. Instead, the
o
alleged
Miltierhas been overuledby Farrnerto the extent that it allowed a finding of dehbetate indiffetence
upon constructive knowledge, but it is still good law fot the ptoposition cited.
t The Court may consider exhibits attached to the Complaint when nrling on a motion to dismiss.
(Secjt oJ'Smn lior Defenæ u. Trimb/e Naui¿arion I-td.,484 F.3d 700, 705 (4th Cft. 2007)).
6 In his Complaint, Plaintiff notes the uncertainty as to whether Defendant recommended an ENT
evaluation. (Jea Compl. at 25, 27.) Tal
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