STEPHENS v. JOHNSON et al

Filing 3

ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 07/24/2014, that in forma pauperis status is granted for the sole purpose of entering this Order and Recommendation. The Clerk is instructed to send Plaintiff § 1983 forms, instructions, an application to proceed in forma pauperis, and a copy of pertinent parts of Fed. R. Civ. P. 8 (i.e., Sections (a) & (d)). RECOMMENDED that this action be filed and dismissed sua sponte without prejudice to Plaintiff filing a new complaint, on the proper § 1983 forms, which corrects the defects cited above.(Taylor, Abby)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
TRAVIS O. STEPHENS,
Plaintiff,
v.
SHERIFF TERRY JOHNSON, et al.,
Defendant(s).

)
)
)
)
)
)
)
)
)

1:14CV588

ORDER AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff, a prisoner of the State of North Carolina, submitted a civil rights action
pursuant to 42 U.S.C. § 1983, together with an application to proceed in forma pauperis.
The form of the Complaint is such that serious flaws make it impossible to further process
the Complaint. Plaintiff fails to name proper defendants or state a claim for relief against the
defendants that he names. Plaintiff must name persons who are actually responsible for the
alleged violations of his constitutional rights. Plaintiff alleges that, while housed in the
Alamance County Jail, he did not receive needed medications for AIDS/HIV. (Docket Entry
2, § V.) He also alleges that, even after he began receiving the medications, the medications
were not sent with him during an eight-day transfer to the Durham County Jail. (Id.)
Plaintiff names a number of Defendants, two of which are Alamance County Sheriff
Terry Johnson and one of his deputies, Brian Porcher. Plaintiff alleges no direct involvement
by Johnson, but instead seeks to hold him liable due to his position of general responsibility
for the Alamance County Jail. However, there is no supervisory liability under § 1983.

Plaintiff alleges that Porcher answered a grievance form complaining about the lack of
medication by saying that the “medical staff can do whatever to whomever they want, the
Sheriff[’s] Dept. don’t [sic] get involved.” (Id.) Such an allegation, even if true, does not
state a claim for relief against Porcher. His alleged answer, though perhaps blunt or
insensitive, is another way of saying that the Sheriff’s Department leaves medication
decisions to medical professionals. This is not a violation of Plaintiff’s federal rights.
Plaintiff also names “Southern Health Partners Medical Staff,” Sheila Barnes, a
member of that staff, and Susan Fortner, Head Nurse of the Alamance County Sheriff’s
Department, as Defendants. “Southern Health Partners Medical Staff” is a general group,
not a person. Plaintiff must name the particular person or persons on the staff who allegedly
violated his rights. Sheila Barnes is a person on that staff, but Plaintiff states no claim as to
Barnes because he makes no specific allegation as to her. Finally, Plaintiff makes two
allegations against Fortner, but neither is sufficient to state a claim for relief. The first is that,
near the beginning of April, 2014, he informed Fortner that his wife could no longer obtain
free AIDS medication for him outside the Jail. He did not then receive the medication from
Fortner or other medical staff, but other nurses on staff informed him that Fortner had
ordered the medication and it would arrive soon. After he reported to “Nurse Christian” that
he was losing his appetite and hurt all over his body, she told him that the problem with
receiving his medication was that “‘they’ refused to pay for it.” (Id.) Plaintiff admits that
he does not know who “they” is and does not report any attempt to find out. In any event,
he received his medication not long thereafter. Therefore, Plaintiff’s allegation against
Fortner is that when he told her he needed the Jail to supply his AIDS medication, she

ordered it, only to have some other unidentified person or persons refuse to pay for it for
some time. This does not state any claim as to Fortner. Second, Plaintiff also alleges that
he gave Fortner and others information to contact his infectious disease physician, but that
she did not do so.

(Id.)

He does not adequately explain why such an action is

constitutionally required. He states no claim for relief as to Fortner.
Overall, Plaintiff’s claim is that he did not receive necessary medication for
approximately forty days in April and May of 2014 because someone refused to pay for the
medication. This could potentially state a claim for relief, but Plaintiff must name the
responsible party or parties, not simply names other medical personnel or law enforcement
officers who were not involved in that refusal. Plaintiff also claims that he did not receive
his medication for eight days during his transfer to Durham. Again, he must name the person
or persons responsible for this alleged deprivation. He does not do so in the current
Complaint.
Consequently, the Complaint should be dismissed, but without prejudice to Plaintiff
filing a new complaint, on the proper § 1983 forms, which corrects the defects of the present
Complaint. To further aid Plaintiff, the Clerk is instructed to send Plaintiff new § 1983
forms, instructions, an application to proceed in forma pauperis, and a copy of pertinent parts
of Fed. R. Civ. P. 8 (i.e., Sections (a) & (d)).
In forma pauperis status is granted for the sole purpose of entering this Order and
Recommendation.
IT IS THEREFORE ORDERED that in forma pauperis status is granted for the sole
purpose of entering this Order and Recommendation. The Clerk is instructed to send

Plaintiff § 1983 forms, instructions, an application to proceed in forma pauperis, and a copy
of pertinent parts of Fed. R. Civ. P. 8 (i.e., Sections (a) & (d)).
IT IS RECOMMENDED that this action be filed and dismissed sua sponte without
prejudice to Plaintiff filing a new complaint, on the proper § 1983 forms, which corrects the
defects cited above.
This, the 24th day of July, 2014.

/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge