SIMMONS v. SHELTON et al
Filing
35
MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE JOE L. WEBSTER on 05/14/2015; that Defendants' motions to dismiss for failure to state a claim (Docket Entries 20 , 22 ) be GRANTED. FURTHER RECOMMENDED that this action be dismissed with prejudice. (Garland, Leah)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
ìøALTER COLUMBUS SIMMONS,
Plaintiff,
v
LT. RANDY SHELTON, et al.,
Defendants.
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)
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)
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)
)
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1,:1,3cv566
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
This mattet is before the Coutt two motions
- a motion to dismiss filed by
Defendants Nurses Apdl, Jessica and Marilyn (Docket Entty 20) and
^
separrate
motion to
dismiss filed by Defendant Lt. Randy Shelton. (Docket Entry 22.) Plaintiff has tesponded
to the motions and the matter is tipe fot disposition. Fot the teasorìs that follow,
Defendants'motions to dismiss should be granted.
I. Bacþround
and PlaintifPs Allegations
On July 3, 201.3, Plaintiff Waltet Columbus Simmons, a former inmate at the Sutry
County Detention Centet, filed this pro se action, naming the following persons
as
Defendants: Lt. Randy Shelton, and Nurses Marilyn, April and Jessica. Plaintiff filed an
amended complaint on September
4,2013. (Docket Entry 7.) The complaint is on a fotm
that putports to set forth a claim pursuant to 42 U.S.C. S 1983 fot aviolation of PlaintifPs
civil tights, and the factual allegations are in the natute of a claim fot deliberate indiffetence
to
seri'ous medical needs
and unusual punishment.
in violation of the Eighth Amendment's prohibition against ctuel
Plaintiff's facttal allegations, in theit entirety, are
as
followsl
In the month of Oct. 6 2012I was housed at Sutry County Detention Centet.
Between the months of Oct. and Nov. 201,2 (1) I was seen by Nurse Jessica
fot a physical. My blood pressure was checked and it was high. I was asked
was I taking any medication for it. I told her yes when I was out I took a pink
water pill for my high blood pressure. (2) The second time I went to see the
Nurse Apdl for othet teasons my blood pressure was taken [and] it was still
high but was not put on my medication. (3) The thitd time I was seen by the
Nutse Madlyn fot othet reasons I was checked fot high blood pressure it was
still high. For all three times I was not given any medication fot my high
blood pressure. For seven months I þave] been suffedng blutty eyes,
headaches, dizziness, sweat at night. I þave] been going thtough this off and
on fot seven months. In the month of Apdl 30, 201.3 I was ttansfetted to
Forsyth County Jail. I was seen by the nutses thete and my blood was still
high so the nurses asked me have I been taking any medication fot it. I told
het yes a pink wateÍ pill for it. So the nurse put me on my blood pressure
pink watet pill. Evet since things have not been notmal. Two weeks latet I
was transferted back to Surry County on May 15,2103. The next day I did
not receive any medication and I ask why not the nutse told me because it's
normal, I fill out a gtievance and was seen by one of the staffets fot Step 1.
Still no medication. I was also seen by Lt. Randy Shelton fot Step II he told
me to stay
ftom that medication keep telling me leave that medication
^way
alone and you will not get any medication here fot sixty eight days I suffer
blurry eyes, headaches, dizziness, Iight sweat and still haven't teceived my
medication. On JuIy 22,21,03,I was transfered to,\she County. I was seen
by the nurses thete and they ask me did I have any ptoblems I told her yes
high blood pressure so she checked me and ask what I was taking. I told her a
pink watet pill so the nutse put me on my medication, after I went to two
county [sic] and my medication was given. Now Sutry County is giving me my
medication but petmanent damage has obviously been done to my body. The
grounds
I am suing for
arc negligence and medical malptactice.
(Am. Compl. at 5, Docket Entry 7.)
In his ptayet for telief, Plaintiff
asks
for
damages
for
negligence, mental
anguish and pain and suffering. (Id. at 6.)
t
Some spelling, punctuation and grammatical ettors have been cotrected.
2
II.
Motion to Dismiss Standard
Defendants argue that dismissal is apptoptiate pursuant
Procedure 12þ)(6).
to Fedetal Rule of Civil
,\ motion to dismiss pursuant to Rule 12þ)(6)
tests the sufficiency
of
the complaínt. E,dward¡ u. Citl of Goldsboro, 178 F.3d 231,243 (1,999). A complaint that does
not "contain sufficient factual matter, accepted as true, to 'state a claim to relief that
is
plausible on its face"'must be dismissed. Ashcroft u. Iqbal,556 U.S. 662,678 (2009) (quoting
BellAtlantic u. Twombþ,550 U.S. 544, 570 Q007)).
"A claim has facial plausibility when the
plaintiff pleads factual content that allows the coutt to draw the teasonable infetence that the
defendant is liable for the misconduct." Id.; rce also Sinmons dv United Mortg. dv
I-.oaru Inuest.,
634 tr.3d 754, 768 (4th Cit. 201,1) ("On a Rule 12þ)(6) motion, a complaint must be
dismissed
if it
does not allege enough facts to state a claim to telief that is plausible on its
fzce."). The "court accepts all well-pled facts as true and consttues these facts in the light
most favotable to the plaintiffi," but does not consider "legal conclusions, elements of
cause
of action,
bate assettions devoid
inferences, unteasonable conclusions,
of
factual enhancement[]
or arguments."
.
a
unv/affanted
Nernet Cheurolet,
Ltd.
u.
Consamerffiirs.clm, 1nc.,591 F.3d 250,255 (4th Cir. 2009) (citations omitted). In other words,
the standatd tequires a plainttff to articulate facts, that, when accepted as true, demonstrate
the plaintiff has stated a
cla:lrn
Giacornelli,5SS F.3d 1,86,1.93 (4th
that makes
it plausible he is entitled to telief.
Francis
u.
Cir. 2009) (quoting Iqbal,556 U.S. at6T3,andTwombþ,550
U.S. at 557).
Pro se complaints ate
to be liberally consúued in
assessing sufficiency undet the
Federal Rules of Civil Procedure. Erickson u. Pardas,551 U.S. 89,94 Q007). However, even
J
undü this libetal construction, "generosity is not fantasy," aÍrà the coutt is not expected to
plead a plain:J:f?s claim for
him. Bender u, Saburban Ho:þ.,
Inc., 159 F'.3d 186, 192 (4th Cu.
1998).
III.
Discussion
A. Motion to Dismiss
as to Defendant
Lt. Randy Shelton
Plaintiff putports to bring a claim of delibetate indifference to setious medical needs
based on Defendant Shelton's alleged failute to give Plaintiff blood pressute medicine.
It is
well settled that not "every claim by a pdsonet that he has not teceived adequate medical
treatment states a [constitutional] violation." Ertelle u. Gamble,429 U.5.97,1.05 (1976). The
Eighth Amendment only ptoscdbes acts
or
omissions
by prison officials that
^re
"sufficiently hatmful to evidence deliberate indiffetence to serious medical needs." Id. at
1,06. Since E$e/le, courts have developed a two-part test for evaluating Section 1983 claims
alleging Eighth Amendment violations as to medical cate; courts
was evidence
of a setious
medical need and
if
evaluate whethet there
so, then consider whethet a defendant's
tesponse to that need amounted to delibetate indiffetence.
241, (4th
ltst
See
Iko
u. Shreue,535F.3d225,
Cir.2008).
In the pdson
context, a serious medical need exists
diagnosed by a physician as mandating treatment
recogtize the need for medical care; ot
if
(1) a condition has been
ot is so obvious that a laypetson would
íf Q) a delay in treatment
causes a
lifelong handicap
or permanent loss. In order to prove deliberate indiffetence, a plaintiff must show that "the
official knows of and distegards an excessive risk to inmate health ot safety." Farwer
a.
Brennan,511 U.S. 825,837 (1994). Deliberate indifference is a subjective standatd, focusing
4
on the defendant's conscious distegatd of a substanial tisk of hatm. Farrzter,511 U.S. at
837-38; see also Pari¡h u. Cleueland, 372 F.3d 294, 303 (4th
Cit. 2004). Âdditionally,
the
individual defendant must real-ize his actions were inapproptiate as a tesult of his actual
knowledge of dsk to the inmate. Parish,372F.3da;t303. This standatd is more than mere
negligence, requiring actual knowledge
of the individual
defendant's own tecklessness.
Farzner, 51 1 U.S. at 836.
It is well settled that negligence or medical malptactice are not suffìcient to establish
delibetate indiffetence. Estelle, 429 U.S. at 105-06. An
"effoÍ of ludgment" on the part of
prison medical staff, or "'inadvertent failure to provide adequate medical cate,'while perhaps
sufficient
to
support
^t\
action
for
malpractice,
depdvation redressable undet $ 1983." Boy;e
u.
will not constitute a
constitutional
AliTadah,595 F.2d 948,953 (4th Cit. 1,979)
(quoting Estelle,429 U.S. at 105) (abtogated in part, on other grounds, Neitqke u. lY/illiams,
490 U.S. 319 (1989)). "The bottom line is that prison offìcials without medical training are
responsible for seeing that prisoners ate attended to by medical professional. They ate not
responsible for detetmining the coutse of treatment ot fot ovettuling the opinions of those
professionals." Pølliam u. Søþer. of Hoke Corect.,1:05CV1000,2007 ì7L 4180743 (À{.D.N.C.
Nov.20,
2007).
Here, Plaintiff alleged symptoms
of
dtzziness, headaches and night sweats.2 He does
not allege that Defendant Shelton was involved in his medical cate, only that he made certain
comments about Plaintifls medication in response to a gtievance allegedly fìled by Plaintiff.
2
by Defendant Shelton, tn a previous complaint Plaintiff alleged that his night
sv/eats were caused by tobacco withdtawal. See Simmon¡ u. Sarry Cnfl Der. Cnlr. et a|,1,:1,3-cv-1,054,
Docket Entty 2 (\,Í.D.N.C. Nov. 21,201,3) (dismissed by Order dated March 18,2014, Docket
,{,s pointed out
Entry 6).
5
The one sentence in the amended complaint as to Defendant Shelton is simply insufficient
to allege that he had actual knowledge of a setious medical need ot that he was deliberately
indiffetent to such a need. Plaintiffs assettion in his response that Defendant Shelton
should have known that Plaintiff needed blood pressure medication because Defendant
Shelton "stated that he has high blood pressure himself so he know[s] how
know[s] that this could've killed me if
I
I
feel
...
and
did not get my blood pressure down" pl.'s Resp. at
2-3,Docket Entry 27) is insuf{icient to show that Defendant Shelton had actual knowledge
or was teckless in failing to give Plaintiff medication which was not ptescdbed by medical
ptofessionals. Dismissal of Plaintiffs claim is thetefote proper as to Defendant Shelton.3
B. Motion to Dismiss
as to Defendant Nurses Jessica,
Marilyn and Aprila
Defendant Nutses have also moved to dismiss pursuant to Fedetal Rule
of
Civil
Procedute 12þ)(6). (Docket F;ntty 20.) This motion is ptedicated on Plaintiffs failure to
meet the mandatory pte-filing cettification tequirements of Rule
9f) of the North
Caroltna
General Statutes 1,1'-1., Rule 9O.
In Notth Caroltna, a plaintiff alleging medical malpractice must comply with Notth
Carolina Rule of Civil Ptocedute 9O which requites a plaintiff to include in his complaint an
assertion that that an expett in the same field teviewed the medical cate at issue and is wilüng
to testi$r that the medical care did not comply with the applicable standatd of care.
3
-1¿¿
N.C.
Defendant Shelton asseÍts other grounds for dismissal as well, including sovereign immunity and
of supplemental jurisdiction. However, because the court is recommending dismissal on
12(bX6) gtounds, these atguments need not be addtessed futhet,
a In the amended complaint, Plaintiff idenufies these Defendants by only their first names. In their
motion to dismiss, Defendants provide last names fot Jessica and Mariþn, but not fot ,{,pril, noting
however that the motion covers ,\pril as well "if that named defendant 'Ms. A.pdl' tefets to an
employee or formet employee of Southetn Health Partners." For the purposes of this
Recommendation, the coutt will refer to these Defendants as "Defendant Nurses,"
lack
6
R. Civ.
P 90)
Failure to comply with Rule
United State¡ 528 Fed.
90 is gtounds fot dismissal.
See
Uttlepaige
u.
App'* 289,292 (4th Cir. 201,3) (unpubìished)(finding in a Federal Tott
Claims Act case , "thaq whete applicable, a Rule
90 cetification is a mandatory tequitement
for a plaintiff in a Noth Carolina medical malpractice action."); Boala u. United States,
1:11cv366, 201,3 WL 5962935, at 82 (À4.D.N.C. Nov. 7 , 2013); Moore u. Pitt Cnfl Mem. Hotþ.,
1,39
F. Srrpp. 2d 71.2,71,3-1,4 @,.D.N.C. 2001). The only exception to this tule is whete
"[t]he pleading alleges facts establishing negligence undet the existing common-law docttine
of. res þsa
loquitar." Rule 90(3).
In his amended complaint, Plaintiff is challenging the medical cate he teceived while
at Sutry and he cleatly states that he is suing fot medical malptactice. (Am. Compl. at
Docket Entry
7.)
5,
The amended complaint contains no assettions tegarding teview of any
medical tecords by a medical ptofessional or potential expert witness. Thus, the only way
Plaintiff could be in compliance with Rule 9f) would be
negligence undet the docttine of
"The doctrine of
res
if the complaint establishes
þsa loqøiÍar.
res ipsa loqaitor
applies when (1) ditect ptoof of the cause of an injury
is not avallable, (2) the instrumentality involved in the accident is undet the defendant's
conttol, and (3) the injury is of a type that does not otdinadly occur in the absence of some
negligent
877
^ct
ot omission." Al¡ton
, 879 Q01,2) (citation omitted);
201,2
WL
u. Granuille Health 51s,,221,
N.C. Âpp. 41.6, 41.9,727 S.F^2d
:ee also Mahamrnad u. United States,
No. 5:11-CT-3126-trL,
3957473, atx6 (E.D.N.C. Sept. 1,0, 201,2). PlaintifPs claim
is based solely on
Defendants' decisions regarding treatment of his alleged high blood ptessuÍe. The doctrine
of res þsa
loqøitor does
not apply to the allegations of this action.
7
Plaintiffs status as a ptisonet does not excuse his failute to comply with Rule 90's
pte-filing cettification tequirements. Mahammad, at *5 n.
2.
Because PlaintifPs complaint
does not contain the tequired Rule 9(f) cetifìcation, it must be dismissed.s
IV.
CONCLUSION
For the fotegoing reasons,
dismiss
fot failute to
state
IT IS RECOMMENDED
that Defendants' motions to
a clum (Docket Entries 20, 22) be GRANTED. IT
IS
FURTHER RECOMMENDED that this action be dismissed wrth ptejudice.
L
Stttes lrfqgi stn*te Judge
Durham, North Catoltna
ll'4.ay 1.4,201.5
t
Ev.n if Plaintiff were not asserting a medical malpractice claim, for the same reâsons discussed in
III A, he has failed to state a claim against Defendant Nutses fot deliberate indiffetence to a
serious medical need and dismissal would be ptoper on those gtounds.
section
8
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