WILBANKS v. SIMMONS

Filing 18

MEMORANDUM OPINION AND ORDER signed by MAG/JUDGE L. PATRICK AULD on 12/30/2013; that Plaintiff's Motion for Leave to File Amendment (Docket Entry 15 ) is DENIED. FURTHER that the Clerk strike Docket Entry 16 . (Sheets, Jamie)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

DANIEL EARL WILBANKS,

)
)
)
)
)
)
)
)
)

Plaintiff,
v.
C/O ROBBIE SIMMONS,
Defendant.

1:13CV167

MEMORANDUM OPINION AND ORDER
OF UNITED STATES MAGISTRATE JUDGE
This matter comes before the Court on Plaintiff’s Motion for
Leave to File Amendment (Docket Entry 15).

For the reasons that

follow, the Court will deny the instant Motion.1
I.

Background

Plaintiff commenced this case by filing a pro se prisoner form
Complaint under 42 U.S.C. § 1983. (Docket Entry 1.) The Complaint
alleges that Defendant Robbie Simmons, a corrections officer,
1

For reasons stated in Deberry v. Davis, No. 1:08CV582,
2010 WL 1610430, at *7 n.8 (M.D.N.C. Apr. 19, 2010) (unpublished),
the undersigned Magistrate Judge will enter an order, rather than
a recommendation, as to this matter. See also Everett v. Prison
Health Servs., 412 Fed. Appx. 604, 605 & n.2 (4th Cir. 2011)
(“Everett moved for leave to amend her complaint . . . to add
Appellee Prison Health Services, Inc. (‘PHS’) as a defendant based
on information obtained during discovery, and to add a state-law
claim of medical malpractice against PHS. After a hearing, the
magistrate judge denied Everett’s motion. Everett timely objected,
thereby preserving the issue for review by the district
court. . . . [T]he district court could not modify or set aside
any portion of the magistrate judge’s order unless the magistrate
judge’s decision was ‘clearly erroneous or contrary to law.’ Fed.
R. Civ. P. 72(a); 28 U.S.C.A. § 636(b)(1)(A) (2006 & Supp.
2010).”).

struck Plaintiff in the groin area with a billystick.

(Id. at 3.)

It further alleges that Plaintiff gave a statement about the
incident and, as a result, suffered humiliation and harassment and
was relocated to a different prison farther from his family. (Id.)
Finally, the Complaint alleges Plaintiff received medical treatment
for ongoing pain resulting from the incident and that his transfer
has caused him and his family stress.

(Id.)

The Complaint

requests that “policy & training [] be changed regarding escorting
inmates to seg units transferred to min custody & compensation for
[Plaintiff’s] injuries (compensatory and punitive).”
Defendant filed an Answer.

(Id. at 4.)

(See Docket Entry 11.)

Plaintiff

thereafter filed the instant Motion seeking to add a Defendant to
his Complaint.
respond.

(Docket Entry 15 at 1.)2

Defendant did not

(See Docket Entries dated Oct. 21, 2013, to present.)
II.

Legal Standard

Given the procedural posture of this case, Plaintiff may
“amend [his] pleading only with [Defendant’s] written consent or

2

The Court adopted a Scheduling Order in the instant case
(see Text Order dated Sept. 16, 2013) which set October 17, 2013,
as the deadline to file any motion seeking leave to amend pleadings
or to add parties (id.). The Clerk received Plaintiff’s instant
Motion, as well as Plaintiff’s proposed Amended Complaint (see
Docket Entry 16), on October 21, 2013 (see Docket Entry 15 at 1).
However, the Court notes that the instant Motion bears a date of
September 26, 2013.
(See id.)
Moreover, the envelope is
postmarked October 17, 2013. (See Docket Entry 16-1 at 1.) The
Court therefore will treat the instant Motion as timely filed
pursuant to the Scheduling Order in this case and will not require
a showing of good cause for any delay.
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the [C]ourt’s leave.”

Fed. R. Civ. P. 15(a)(2).

The applicable

Rule further directs that “[t]he [C]ourt should freely give leave
when justice so requires.” Id.

Under this standard, the Court has

some discretion, “but outright refusal to grant the leave without
any justifying reason appearing for the denial is not an exercise
of discretion . . . .”

Foman v. Davis, 371 U.S. 178, 182 (1962).

Reasons to deny leave to amend a pleading include “undue delay, bad
faith or dilatory motive on the part of the movant, repeated
failure to cure deficiencies by amendments previously allowed,
undue prejudice to the opposing party by virtue of allowance of the
amendment, [and] futility of amendment,” id.; accord Equal Rights
Ctr. v. Niles Bolton Assocs., 602 F.3d 597, 603 (4th Cir. 2010) (“A
district court may deny a motion to amend when the amendment would
be prejudicial to the opposing party, the moving party has acted in
bad faith, or the amendment would be futile.”).
“An amendment would be futile if the amended claim would fail
to survive a motion to dismiss for failure to state a claim
pursuant to Federal Rule of Civil Procedure 12(b)(6).”

Syngenta

Crop Prot., Inc. v. EPA, 222 F.R.D. 271, 278 (M.D.N.C. 2004).

A

plaintiff fails to state a claim when the complaint does not
“contain sufficient factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face.’”
Iqbal,

556

U.S.

662,

678

(2009)

(emphasis

Ashcroft v.

added)

(internal

citations omitted) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.

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544, 570 (2007)). “Where a complaint pleads facts that are ‘merely
consistent with’ a defendant's liability, it ‘stops short of the
line

between

relief.”’”

possibility

and

plausibility

of

“entitlement

Id. (quoting Twombly, 550 U.S. at 557).

to

This standard

“demands more than an unadorned, the-defendant-unlawfully-harmed-me
accusation.”

Id.

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.”
III.

Id.3
Discussion

Plaintiff’s instant Motion states, in relevant part, that
“[s]ince filing this Complaint [] Plaintiff has determined that the
U.R. Medical Board in Raleigh NC needs to be added to this
Complaint [as a Defendant].” (Docket Entry 15 at 1.) According to
the Director of Health Services for the North Carolina Department
of Corrections (“DOC”), “[t]here is no such entity within DOC as a
[Utilization Review Board] . . . .

There are only individual

doctors and nurses employed by, or under contract to, DOC, who
perform Utilization Review (‘UR’) functions . . . .

Individual

doctors and nurses may or may not make their UR decisions in

3

“[D]etermining whether a complaint states on its face a
plausible claim for relief and therefore can survive a Rule
12(b)(6) motion . . . requires the reviewing court to draw on its
judicial experience and common sense.” Francis v. Giacomelli, 588
F.3d 186, 193 (4th Cir. 2009).
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consultation with other doctors and nurses, but their decisions are
not the decisions of a Board, because there is no Board.”
Cape

Fear

Valley

Hosp.,

No.

5:09-CT-3066-D,

(E.D.N.C. Feb. 2, 2011) (unpublished).

2011

Deal v.

WL

354690

To the extent Plaintiff

intended to add the doctor or nurse who reviewed his case, he “has
not provided a name for the members of the Utilization Review Board
that he seeks to sue or made any specific allegations against any
Utilization Review Board member,” Murray v. Keller, No. 5:10-CT3038-FL,

2011

WL

4443143,

at

*4

(E.D.N.C.

Sept.

23,

2011)

(unpublished). (See Docket Entry 16 at 1-2.) His proposed Amended
Complaint therefore does not contain the “‘minimum level of factual
support [] required,’” Murray, 2011 WL 4443143, at *4 (quoting
White v. White, 886 F.2d 721, 723 (4th Cir. 1989)).
Moreover, for a claim based on denial of medical care,
Plaintiff

“must

demonstrate

that

the

[officials]

acted

with

‘deliberate indifference’ (subjective) to the inmate’s ‘serious
medical needs’ (objective).” Iko v. Shreve, 535 F.3d 225, 241 (4th
Cir. 2008).

“Deliberate indifference is a very high standard - a

showing of mere negligence will not meet it.” Grayson v. Peed, 195
F.3d

692,

695

(4th

Cir.

1999).

Instead,

the

“deliberate

indifference” prong requires Plaintiff to make “two showings”:
First, the evidence must show that the official in
question subjectively recognized a substantial risk of
harm. It is not enough that the [official] should have
recognized it; [he] actually must have perceived the
risk. Second, the evidence must show that the official
in question subjectively recognized that his actions were
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inappropriate in light of that risk.
As with the
subjective awareness element, it is not enough that the
official should have recognized that his actions were
inappropriate; the official actually must have recognized
that his actions were insufficient.
Parish ex rel. Lee v. Cleveland, 372 F.3d 294, 303 (4th Cir. 2004)
(internal citations and quotation marks omitted) (emphasis in
original). “The subjective component therefore sets a particularly
high bar to recovery.”

Iko, 535 F.3d at 241.

“To establish that a health care provider’s actions constitute
deliberate indifference to a serious medical need, the treatment
must be so grossly incompetent, inadequate, or excessive as to
shock the conscience or to be intolerable to fundamental fairness.”
Miltier v. Beorn, 896 F.2d 848, 851 (4th Cir. 1990). “Disagreements
between an inmate and a physician over the inmate’s proper medical
care do not state a § 1983 claim unless exceptional circumstances
are alleged.”

Wright v. Collins, 766 F.2d 841, 849 (4th Cir.

1985).
In his proposed Amended Complaint, Plaintiff states that the
U.R. Board denied approval of an ultrasound “regarding blunt force
trauma to [] Plaintiff’s groin.”

(Docket Entry 16 at 1.)

Based on

that single factual assertion, Plaintiff alleges the U.R. Board
denied Plaintiff medical treatment and medical care.

(Id. at 2.)

The proposed Amended Complaint does not contend that the U.R. Board
(or

any

particular

member

thereof)

acted

with

deliberate

indifference, much less allege facts to support such a contention.

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At best, the proposed Amended Complaint highlights a disagreement
between Plaintiff and the reviewing physician(s) as to Plaintiff’s
treatment.

It thus fails to state a claim for inadequate medical

treatment against the U.R. Board or any members thereof.
Finally, to the extent that the “U.R. Medical Board” exists as
an entity associated with the DOC, it is not subject to claims
under § 1983.

“Section 1983 provides a federal forum to remedy

many deprivations of civil liberties, but it does not provide a
federal forum for litigants who seek a remedy against a State for
alleged deprivations of civil liberties.

The Eleventh Amendment

bars such suits . . . .”

Will v. Michigan Dep’t of State Police,

491 U.S. 58, 66 (1989).

States and state agencies thus do not

constitute “persons” subject to suit under § 1983, id. at 67-71,
and, for this reason, Plaintiff’s claims against the “U.R. Medical
Board” fail as a matter of law.

See Diaz v. Lee, 104 F. App’x 321,

322 n.* (4th Cir. 2004) (noting “Utilization Review Board” is not
a “person” under § 1983 and citing Will, 491 U.S. at 70).
IV.

Conclusion

For all of the aforementioned reasons, Plaintiff’s proposed
amendment would fall short as a matter of law. Plaintiff’s instant
Motion to Amend Complaint thus fails as futile.

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IT IS THEREFORE ORDERED that Plaintiff’s Motion for Leave to
File Amendment (Docket Entry 15) is DENIED.
IT IS FURTHER ORDERED that the Clerk strike Docket Entry 16.

/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
December 30, 2013

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