SHERRON v. ANDREWS et al

Filing 30

MEMORANDUM OPINION, ORDER, AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 10/17/2016, RECOMMENDED that the Motion to Dismiss (Docket Entry 16 ) be DENIED. ORDERED that the Motion to Amend (Docket Entry 21) is GRANTED IN PART and DENIED IN PART WITHOUT PREJUDICE, in that Shonica Jones is substituted for Correction Care Director I as the named defendant in this action, and all references to Correction Car e Director I or Director in the complaint and supplement shall be deemed as references to Shonica Jones, but all other relief is denied. FURTHER that, by October 31, 2016, counsel for Defendant shall file a notice with the Court either c onfirming counsel's willingness to accept service of process on behalf of Shonica Jones (which, in the interest of efficiency, the Court then will carry out for Plaintiff via the CM/ECF system) or setting forth a proper service address for Shonica Jones. If Defendant's counsel chooses to file a notice containing a proper service address for said Defendant, the Clerk shall prepare a proper summons for Shonica Jones for service by the United States Marshal. FURTHER that the Hearing Request (Docket Entry 26 ) is DENIED. (Garland, Leah)

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

ROBBIE SHERRON,

)
)
)
)
)
)
)
)
)

Plaintiff,
v.
CORRECTION CARE DIRECTOR I,
Defendant.

1:15cv852

MEMORANDUM OPINION, ORDER, AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
This

case

comes

before

the

undersigned

United

States

Magistrate Judge for a recommendation on “Defendant Correction Care
Director I’s Motion to Dismiss” (Docket Entry 16) (the “Motion to
Dismiss”), as well as for orders on “Plaintiff[’]s Motion to File
Amendment” (Docket Entry 21) (the “Motion to Amend”)1 and “Motion
to Request Pre Trial Hearing” (Docket Entry 26) (the “Hearing
Request”).

For the reasons that follow, the Court (i) should deny

the Motion to Dismiss, (ii) will grant in part and deny in part the
Motion to Amend, and (iii) will deny the Hearing Request.
BACKGROUND
“Plaintiff, Robbie Sherron, submitted a pro se complaint under
42 U.S.C. § 1983 and request[ed] permission to proceed in forma
pauperis pursuant to 28 U.S.C. § 1915(a).”

(Docket Entry 3 (the

1
For legibility reasons, this Opinion uses standardized
capitalization in all quotations from Plaintiff’s filings.

“Recommendation”) at 1.)2

In the Recommendation (later adopted by

the Court (per Chief United States District Judge William L.
Osteen, Jr.) (Docket Entry 5 at 1)), the undersigned analyzed
Plaintiff’s complaint (Docket Entry 2) to determine whether it
“‘fail[ed] to state a claim upon which relief may be granted’”
(Docket Entry 3 at 2 (quoting 28 U.S.C. § 1915A(b))).

(See id. at

2-4 (conducting analysis).)
The

Recommendation

provides

the

following

summary

of

Plaintiff’s allegations:
Plaintiff names Durham County Sheriff Michael D. Andrews,
“RN. Butler,” a supervisor at the Durham County Detention
Center,
and
“Correctional
Care Director
I,”
an
administrator
at
that
facility,
as
Defendants.
Plaintiff, a former detainee at the Durham County
Detention Center, alleges that, while eating on March 3,
2015, he suffered a broken tooth and filling, causing him
great pain. He placed a sick call, but did not hear back
within two days. He then suffered more pain, which led
to an immediate examination by a nurse at the Detention
Center. She scheduled him to see the dentist. However,
the dentist subsequently came to the Detention Center,
saw other inmates, and did not treat Plaintiff.
Plaintiff alleges that he then filed grievances during
March, April, and May of 2015, with the replies to the
grievances stating that he had been placed on the dental
sick call list.
On May 6, 2015, [authorities]
transferred Plaintiff to a state prison, where he
eventually received dental treatment.
He claims that
Defendants Andrews and Butler are liable for his lack of
proper dental treatment at the Detention Center because
they are “over” all of the grievances filed and answered.
He alleges that the Defendant he refers to as
“Correctional Care Director I” actually views and answers

2
Citations herein to Docket Entry pages utilize the
document’s internal pagination if unified internal pagination
exists. In the absence of such pagination, the Docket Entry page
citations utilize the CM/ECF footer’s pagination.
2

all grievances pertaining to dental sick calls and urgent
dental treatment.
(Id. at 1-2.)

In evaluating whether the complaint sufficiently

stated “a claim for wrongful medical treatment under § 1983” (id.
at 3) against each defendant, the Recommendation concluded that
“Plaintiff sets out sufficient allegations to state a claim against
[Correction Care Director I],” but not against the remaining
defendants (id. at 4).

(See id. at 3-4.)

The Court (per Chief

Judge Osteen) adopted that conclusion and dismissed “Plaintiff’s
claims

against

Defendants

Andrews

and

Butler,”

but

permitted

“Plaintiff’s claim against Correction Care Director I . . . to
proceed.”

(Docket Entry 5 at 1.)

Thereafter, the Court (per the undersigned) addressed the
issue of ascertaining the identity of “Correction Care Director I”
(the “Defendant”).

(See Docket Entry 6.)

The Court assessed the

“Complaint’s description of Defendant” (id. at 3), which included
“identif[ying] Defendant by job title,” job duties, and specific
actions undertaken regarding Plaintiff. (See id. at 2-3.) Because
this description sufficiently “establish[ed] that Defendant is a
‘real, but unidentified’ person,” the Court “assist[ed] Plaintiff
with identifying Defendant.”

(Id. at 3.)

Specifically, the Court

directed an attorney who “previously represented the Durham County
Sheriff in similar prisoner civil rights litigation” “to file a
sealed

notice

identifying

the

person

that

meets

Plaintiff’s

description of Defendant ‘Correction Care Director I’ and providing
3

information as to an appropriate address for service of process on
Defendant.” (Id. at 4.) Counsel complied with this directive (see
Docket Entry 8), prompting the issuance of a summons addressed to:
SHONICA JONES
Correct Care Services Administrator
Durham County Detention Center
219 South Mangum Street
Durham, NC 27701
(Docket Entry 9 at 1).

(See Text Order dated Mar. 9, 2016.)

In

accordance with the Court’s order (see id.), the United States
Marshals

Service

sent

(via

certified

mail,

return

receipt

requested) this summons, the complaint, and Plaintiff’s complaint
supplement (Docket Entry 7) to Shonica Jones. (See Docket Entry 13
at 1-3.)
After receiving these materials, Defendant moved to dismiss
the complaint, prompting Plaintiff’s Motion to Amend.
Entries 16, 21.)

(See Docket

Plaintiff also filed a request for a pretrial

hearing to facilitate identification of additional individuals
involved in “the serious deprivation the [P]laintiff suffered.”
(Docket Entry 26 at 1.)

Plaintiff opposes the Motion to Dismiss,

and Defendant opposes the Motion to Amend and Hearing Request.
(See Docket Entries 20, 24, 27.)
DISCUSSION
I. Motion to Dismiss
Defendant seeks dismissal of this action on multiple grounds,
including

under Rule

12(b)(6)

of

4

the Federal

Rules

of Civil

Procedure

(the “Rules”).

sufficiency

of

a

A

complaint,”

Rule 12(b)(6)
but

“does

motion

not

“tests

resolve

the

contests

surrounding the facts, the merits of a claim, or the applicability
of defenses.”

Republican Party of N.C. v. Martin, 980 F.2d 943,

952 (4th Cir. 1992).

Accordingly, in reviewing a motion to

dismiss, the Court must “accept the facts alleged in the complaint
as true and construe them in the light most favorable to the
plaintiff.”

Coleman v. Maryland Court of Appeals, 626 F.3d 187,

189 (4th Cir. 2010), aff’d sub nom., Coleman v. Court of Appeals of
Md., ___ U.S. ___, 132 S. Ct. 1327 (2012).

The Court must also

“draw all reasonable inferences in favor of the plaintiff.”

E.I.

du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 440
(4th Cir. 2011) (internal quotation marks omitted).

Moreover, a

pro se complaint must “be liberally construed” and “held to less
stringent standards than formal pleadings drafted by lawyers.”
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal quotation
marks omitted); but see Giarratano v. Johnson, 521 F.3d 298, 304
n.5 (4th Cir. 2008) (explaining that the United States Court of
Appeals for the Fourth Circuit has “not read Erickson to undermine
[the] requirement that a pleading contain more than labels and
conclusions” (internal quotation marks omitted)).
To survive a Rule 12(b)(6) motion, a complaint must contain
sufficient factual allegations “to ‘state a claim to relief that is
plausible on its face.’”

Ashcroft v. Iqbal, 556 U.S. 662, 678

5

(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). To qualify as plausible, a claim needs sufficient factual
content to support a reasonable inference of the defendant’s
liability for the alleged misconduct.
U.S. at 556).

Id. (citing Twombly, 550

The complaint need not contain detailed factual

recitations, but must provide the defendant “fair notice of what
the claim is and the grounds upon which it rests.”

Twombly, 550

U.S. at 555 (internal quotation marks and ellipsis omitted).
A. Service Challenge
As an initial matter, Defendant seeks dismissal on the theory
that Plaintiff failed to achieve proper service upon her.
Docket Entry 17 at 3.)

(See

In particular, Defendant argues that:

Plaintiff’s Complaint asserted claims against
Defendant Correction Care Director I. . . . A summons
was issued by the Court and was issued and addressed to
“SHONICIA
[sic]
JONES,
Correct
Care
Services
Administrator.” Plaintiff has named and has attempted to
serve a Defendant that has no independent existence.
Neither Correction Care Director I, nor Correct Care
Services is an existing legal entity in North Carolina.
As such, Plaintiff’s process and service of process were
not sufficient.
(Id. (emphasis in original).)

In response, Plaintiff moves to

amend his complaint to specifically identify Shonica Jones as the
Defendant in this action.
discussed

below,

the

(See Docket Entry 21 at 1.)

Court

will

grant

Plaintiff’s

As

request,

substitute Shonica Jones for Correction Care Director I as the
named

defendant

Defendant

as

in

this

references

action,
to

and

Shonica
6

deem
Jones.

all

references

to

Furthermore,

if

Defendant’s counsel refuses to accept service on her client’s
behalf, the Court will direct the Clerk to reissue a summons to
Shonica

Jones.

challenge.

These

amendments

moot

Defendant’s

service

See, e.g., Mooney v. Cato Corp., No. 1:07cv76, 2007 WL

2406961, at *1 (M.D.N.C. Aug. 20, 2007) (“As a matter of law,
defendant’s Motion to Dismiss is mooted by the filing of the
Amended Complaint.”).
B. Rule 12(b)(6) Challenges
In addition, Defendant raises myriad Rule 12(b)(6) challenges
to “Plaintiff’s claims [sic] against Defendant pursuant to 42
U.S.C. § 1983,” “Plaintiff[’s conspiracy] . . . claim pursuant to
42 U.S.C. § 1985,” and “Plaintiff’s claims against Defendant for
inadequate grievance policy” (Docket Entry 17 at 5, 9, 10 (emphasis
and all-cap font omitted)).

(See id. at 5-11.)

Given previous

rulings (see Docket Entries 3, 5), Plaintiff’s § 1983 claim against
Defendant for her alleged deliberate indifference to Plaintiff’s
serious medical needs constitutes the only claim in this action.
As such, Defendant’s contentions regarding the purported conspiracy
claim, inadequate grievance policy claims, and supervisory § 1983
claim qualify as moot.

See Simmons v. United Mortg. & Loan Inv.,

LLC, 634 F.3d 754, 763 (4th Cir. 2011) (observing that “[t]he
doctrine of mootness constitutes a part of the constitutional
limits of federal court jurisdiction” and occurs “when the issues

7

presented

are

no

longer

‘live’”

(internal

quotation

marks

omitted)).
Defendant next seeks dismissal of Plaintiff’s § 1983 claim on
the grounds that it fails to state a claim.
at 5-9.)

(See Docket Entry 17

In this regard, Defendant maintains that “Plaintiff

failed to allege that he was deprived of a specific constitutional
right”

by

“any

state

actor”

(id.

at

6)

and

also

failed

to

sufficiently allege that he possessed a serious medical condition
in regard to which Defendant displayed deliberate indifference (id.
at 7-9).

As a preliminary matter, however, Plaintiff alleges that

“[he] was deprived [of] his Eighth Amendment constitutional right
to be free from cruel and unusual punishment” by Defendant (Docket
Entry 7 at 2), an administrator at the Durham County Detention
Center (Docket Entry 2 at 3).
contention,

Plaintiff

Thus, contrary to Defendant’s

alleges

deprivation

of

a

specific

constitutional right by a state actor.3

3
Based on the allegations in Plaintiff’s supplement, it
appears that some of the alleged deprivation of dental treatment
occurred during Plaintiff’s incarceration as a pretrial detainee.
(See Docket Entry 7 at 2 (alleging that “Plaintiff was convicted on
date 05/04/2015”); Docket Entry 7-2 at 1-2 (identifying conviction
date of May 4, 2015).)
Courts evaluate pretrial detainees’
conditions of confinement in state custody under the Due Process
Clause of the Fourteenth Amendment. See Bell v. Wolfish, 441 U.S.
520, 535 (1979). “The due process rights of a pretrial detainee
are at least as great as the [E]ighth [A]mendment protections
available to the convicted prisoner.” Martin v. Gentile, 849 F.2d
863, 870 (4th Cir. 1988).
These rights include receiving
appropriate medical care. See City of Revere v. Massachusetts Gen.
Hosp., 463 U.S. 239, 244-45 (1983). At present, the same analysis
applies to § 1983 wrongful medical treatment claims under the
8

Moreover, “[i]t is undisputed that the treatment a prisoner
receives in prison and the conditions under which he is confined
are subject to scrutiny under the Eighth Amendment.”

Helling v.

McKinney, 509 U.S. 25, 31 (1993). To establish an Eighth Amendment
claim for wrongful medical treatment under § 1983, Plaintiff must
show

that

Defendant

“acted

with

‘deliberate

indifference’

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

A medical need

qualifies as serious if it “has been diagnosed by a physician as
mandating treatment or . . . is so obvious that even a lay person
would easily recognize the necessity for a doctor’s attention.”
Id.

A

defendant

displays

deliberate

indifference

where

she

possesses knowledge of the risk of harm to an inmate and knows that
her “actions were insufficient to mitigate the risk of harm to the
inmate arising from his medical needs.” Id. (emphasis and internal
quotation marks omitted).
“[D]eliberate indifference entails something more than mere
negligence, . . . [but] is satisfied by something less than acts or
omissions for the very purpose of causing harm or with knowledge
that harm will result.”

Farmer v. Brennan, 511 U.S. 825, 835

Fourteenth Amendment as the Eighth Amendment. See Duff v. Potter,
No. 1:15-cv-26, 2016 WL 1615684, at *5 & n.4 (W.D.N.C. Apr. 22,
2016) (noting that “[t]he Supreme Court in Kingsley[ v.
Hendrickson, ___ U.S. ___, 135 S. Ct. 2466 (2015)] did not
explicitly extend the objective reasonableness standard for
excessive force claims to other claims brought by pretrial
detainees, including deliberate indifference claims”).
9

(1994).

“‘A

delay

in

treatment

may

constitute

deliberate

indifference if the delay exacerbated the injury or unnecessarily
prolonged an inmate’s pain.’”

Abraham v. McDonald, 493 F. App’x

465, 466 (4th Cir. 2012) (quoting McGowan v. Hulick, 612 F.3d 636,
640 (7th Cir. 2010)).

As such, “institutional personnel” can

display deliberate indifference through their response “to an
inmate’s medical needs, including ignoring an inmate’s serious
condition

or

delaying

medically

necessary

treatment.”

Id.

Therefore, a delay in providing dental treatment can establish a
§ 1983 claim.

See, e.g., McGowan, 612 F.3d at 640-41 (concluding

that allegations established a § 1983 claim where “[the plaintiff]
was forced to wait three months to see a dentist after he first
complained of dental pain”); Hunt v. Dental Dep’t, 865 F.2d 198,
200 (9th Cir. 1989) (“‘Dental care is one of the most important
medical needs of inmates.’” (quoting Ramos v. Lamm, 639 F.2d 559,
576 (10th Cir. 1980))); Wilson v. Coleman, No. 7:09cv325, 2009 WL
3055268, at *4 (W.D. Va. Sept. 24, 2009) (explaining that “[d]elay
in dental treatment for a known condition that presents a serious
risk can become a constitutional violation, depending on the
circumstances,” and collecting cases), aff’d, 395 F. App’x 41 (4th
Cir. 2010).
Here, Plaintiff’s § 1983 claim arises from alleged deprivation
of “previously approved and scheduled dental care” “for infection
of the gums and teeth” associated with his missing filling, broken

10

tooth, and multiple cavities, which caused him “unnecessary chronic
pain.”

(Docket Entry 7 at 1-2.)

More specifically, Plaintiff

alleges that he placed a sick call after suffering a broken tooth
and filling on March 3, 2015, which caused him extreme pain, but he
received no response to this sick call for two days, causing him
additional pain.

(Docket Entry 2 at 2, 4.)

This pain provoked a

“bad mood swing,” which led to an immediate examination by a prison
nurse, who “view[ed] the broken tooth and the filling missing and
the infection” and scheduled Plaintiff to see the dentist “on the
very next sick call list.”

(Id. at 2, 4-5.)

Thereafter, the dentist came to the jail and treated other
inmates, but did not treat Plaintiff.

(Id. at 5.) Plaintiff filed

grievances in March, April, and May of 2015, with the replies to
the grievances stating that he had been placed on the dental sick
call list.

(Id.)

At some point after Plaintiff’s transfer to a

prison in May 2015, he received dental treatment. (Id.) Plaintiff
suffered “pain all the way [u]ntil[] prison dental staff treated
the urgent needed dental care.”

(Id.)

Finally, Plaintiff alleges

that Defendant views and answers all grievances pertaining to
urgent dental

treatment

Detention Center.

and

dental

sick

calls

at

the

Durham

(Id. at 5, 7.)

These allegations plausibly establish that Plaintiff suffered
a serious medical need, that Defendant knew of this need, and that
Defendant acted with deliberate indifference regarding this need.

11

See,

e.g.,

Boyd

v.

Knox,

47

F.3d

966,

969

(8th

Cir.

1995)

(reversing grant of summary judgment, finding a “genuine issue of
material fact as to whether [the defendant] exhibited deliberate
indifference to [the plaintiff’s] serious medical needs” where the
defendant knew of the plaintiff’s dental problems and pain, but
“waited three weeks to complete a referral form” for treatment by
an oral surgeon); Hunt, 865 F.2d at 200 (holding that allegations
“that the prison officials were aware of [the plaintiff’s] bleeding
gums, breaking teeth and his inability to eat properly, yet failed
to take any action to relieve his pain or to prescribe a soft food
diet until new dentures could be fitted” stated a § 1983 claim);
Fields v. Gander, 734 F.2d 1313, 1315 (8th Cir. 1984) (finding that
a three-week delay in dental treatment where prison official knew
of the plaintiff’s dental needs and pain established a § 1983
claim).

Plaintiff therefore sufficiently alleges a § 1983 claim

for Defendant’s deliberate indifference to his serious dental
needs, defeating Defendant’s 12(b)(6) contentions.
C. North Carolina Rule of Civil Procedure 9(j) Challenge
Finally, Defendant seeks dismissal of “Plaintiff’s medical
malpractice cause of action” for failure to comply with North
Carolina Rule of Civil Procedure 9(j) (“Rule 9(j)”). (Docket Entry
17 at 3-4.)

As noted, Plaintiff brings only a § 1983 claim against

Defendant (see Docket Entries 3, 5), not a medical malpractice
claim, see N.C. Gen. Stat. Ann. § 90-21.11(2)(a) (defining a

12

medical malpractice action as “[a] civil action for damages for
personal injury or death arising out of the furnishing or failure
to furnish professional services in the performance of medical,
dental, or other health care by a health care provider”).

Rule

9(j) applies only to medical malpractice claims, see N.C. R. Civ.
P. 9(j), and thus lacks relevance to Plaintiff’s § 1983 claim.
See,

e.g.,

Deal

v.

Central

Prison

Hosp.,

Civ.

Action

No.

5:09-CT-3182-FL, 2011 WL 322403, at *4 (E.D.N.C. Jan. 27, 2011)
(dismissing medical malpractice claim for failure to comply with
Rule 9(j), but denying Rule 12(b)(6) motion to dismiss § 1983
claim). Accordingly, Defendant’s Rule 9(j) contention lacks merit.
In

sum,

dismissal.

Defendant

fails

to

offer

a

viable

argument

for

The Court should therefore deny the Motion to Dismiss.

II. Motion to Amend
At this stage of the proceedings, Plaintiff may amend his
complaint “only with the [defendant’s] written consent or the
[C]ourt’s leave.”

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

Rule 15 specifies

that “[t]he [C]ourt should freely give leave [to amend] when
justice so requires.”

Id.

“[T]his mandate is to be heeded.

If

the underlying facts or circumstances relied upon by a plaintiff
may be a proper subject of relief, he ought to be afforded an
opportunity to test his claim on the merits.”

Foman v. Davis, 371

U.S. 178, 182 (1962) (citation omitted); see also Gordon v. Leeke,
574 F.2d 1147, 1152 (4th Cir. 1978) (“What might be a meritorious

13

claim on the part of a pro se litigant unversed in the law should
not

be

defeated

without

affording

the

pleader

a

opportunity to articulate his cause of action.”).

reasonable
The Fourth

Circuit has “interpreted Rule 15(a) to provide that ‘leave to amend
a pleading should be denied only when the amendment would be
prejudicial to the opposing party, there has been bad faith on the
part

of

the

futile.’”

moving

party,

or

the

amendment

would

have

been

Laber v. Harvey, 438 F.3d 404, 426 (4th Cir. 2006) (en

banc); see also Foman, 371 U.S. at 182 (explaining that, absent
“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, futility of amendment, etc.[,] the
leave sought should, as the [R]ules require, be ‘freely given’”).
The

Fourth

Circuit

has

further

explained

that

“absence

of

prejudice, though not alone determinative, will normally warrant
granting leave to amend.”

Davis v. Piper Aircraft Corp., 615 F.2d

606, 613 (4th Cir. 1980).
Defendant opposes the Motion to Amend solely on the grounds of
futility.

(See Docket Entry 24 at 2.)

“Determining whether

amendment would be futile does not involve an evaluation of the
underlying

merits

of

the

case.

Rather,

the

merits

of

the

litigation are only relevant to the Court’s ruling on a motion for
leave to amend if a proposed amendment may clearly be seen to be

14

futile, such as if the proposed amended complaint fails to state a
claim under the applicable rules and accompanying standards.”
Wonasue v. University of Md. Alumni Ass’n, 295 F.R.D. 104, 107 (D.
Md. 2013) (internal quotation marks and citations omitted); see
also Johnson v. Oroweat Foods Co., 785 F.2d 503, 510 (4th Cir.
1986) (“Leave to amend, however, should only be denied on the
ground

of

futility

when

the

proposed

amendment

is

clearly

insufficient or frivolous on its face.”).
A. Identification Amendment
Through the Motion to Amend, Plaintiff seeks to specifically
identify Shonica Jones as the Defendant in this action.

(See

Docket Entry 21 at 1.) Defendant does not challenge this amendment
on the grounds of misidentification (i.e., that the allegations
against Defendant in the complaint do not describe Shonica Jones);
instead, Defendant opposes this request on the grounds that,
“Plaintiff’s Motion to Amend failed to identify or plead any new
facts or allegations sufficient to state a claim for relief for
violation of civil rights pursuant to 42 U.S.C. §§ 1983 and 1985.
Further, Plaintiff’s proposed amendments do not remedy his failure
to comply with the heightened pleading requirements as set forth in
Rule 9(j) . . . .”
For

the

(Docket Entry 24 at 2.)

reasons

discussed

above,

Plaintiff’s

complaint

sufficiently alleges a § 1983 claim, and (because the Court has
construed this action as only raising a claim under § 1983)

15

Defendant’s contentions regarding § 1985 and Rule 9(j) lack merit.
Moreover, counsel for the Durham County Sheriff identified Shonica
Jones as the individual who fit the complaint’s description of
Defendant.

(See Text Order dated Mar. 9, 2016.)

Thus, the Court

concludes that Plaintiff’s requested amendment does not qualify as
futile.

The Court will therefore grant Plaintiff’s request,

substitute Shonica Jones for Correction Care Director I as the
named

defendant

in

this

action,

and

deem

all

references

to

“Correction Care Director I” or “Director” in the complaint and
supplement as references to Shonica Jones.
B. Discovery Requests
In

the

Motion

to

Amend,

Plaintiff

also

contends

that

additional as-yet-unidentified individuals participated in the
alleged deprivation of his constitutional rights. (Docket Entry 21
at 1-2; Docket Entry 22 at 2.)

To enable identification of these

individuals and substantiation of his § 1983 claim, Plaintiff asks
the Court to authorize subpoenas to the Durham County Detention
Center and other state prisons for copies of his dental records
and the grievances he filed regarding the needed dental treatment.
(Docket Entry 21 at 1-2; Docket Entry 22 at 1-3.)

Plaintiff

additionally “request[s] a court order for the proper disclosure”
of the identities of these unidentified individuals. (Docket Entry
21 at 2.)

16

These discovery-related requests are premature, as the Court
has not yet established a case-management schedule (and service of
process of the amended complaint upon Shonica Jones has not yet
occurred).

After the Court authorizes discovery through the

establishment of the case-management schedule, Plaintiff may pursue
proper discovery related to these matters.

Accordingly, the Court

will deny as premature the discovery aspects of Defendant’s Motion
to Amend.4
III. Hearing Request
Finally, Plaintiff requests a pretrial hearing (i) to identify
the “other remaining defendants” that participated in the alleged
incident (Docket Entry 26 at 1), including their names and job
titles (Docket Entry 28 at 1), as well as (ii) to obtain “copies of
medical and dental records that Durham County Jail holds” (id.).
As with the discovery aspects of the Motion to Amend, these
discovery requests qualify as premature.

Moreover, a pretrial

hearing does not constitute the appropriate method for obtaining
the requested information.

Instead, after the Court establishes a

case-management

Plaintiff

schedule,

will

need

information through appropriate discovery devices.

to

seek

this

Accordingly,

the Court will deny the Hearing Request.

4 The Court will also deny without prejudice any request in
the Motion to Amend to add the currently unidentified putative
defendants to this action. If, during the course of discovery,
Plaintiff identifies any additional defendants, he may timely seek
leave to amend his complaint to add such individuals.
17

CONCLUSION
Plaintiff

sufficiently

alleged

a

§

1983

claim

against

Defendant, and Shonica Jones has been identified as the individual
matching the complaint’s description of Defendant.

Accordingly,

Defendant’s Motion to Dismiss lacks merit, and Plaintiff will be
permitted to substitute Shonica Jones as the named Defendant in
this action.

Finally, Plaintiff may not conduct discovery via a

hearing, and Plaintiff’s discovery requests remain premature at
this stage of the litigation.
IT IS THEREFORE RECOMMENDED that the Motion to Dismiss (Docket
Entry 16) be DENIED.
IT IS ORDERED that the Motion to Amend (Docket Entry 21) is
GRANTED IN PART and DENIED IN PART WITHOUT PREJUDICE, in that
Shonica Jones is substituted for Correction Care Director I as the
named defendant in this action, and all references to “Correction
Care Director I” or “Director” in the complaint and supplement
shall be deemed as references to Shonica Jones, but all other
relief is denied.
IT IS FURTHER ORDERED that, by October 31, 2016, counsel for
Defendant shall file a notice with the Court either confirming
counsel’s willingness to accept service of process on behalf of
Shonica Jones (which, in the interest of efficiency, the Court then
will carry out for Plaintiff via the CM/ECF system) or setting
forth a proper service address for Shonica Jones.
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If Defendant’s

counsel chooses to file a notice containing a proper service
address for said Defendant, the Clerk shall prepare a proper
summons for Shonica Jones for service by the United States Marshal.
IT IS FURTHER ORDERED that the Hearing Request (Docket Entry
26) is DENIED.
This 17th day of October, 2016.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge

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