LILLY v. CARTER et al
Filing
71
MEMORANDUM OPINION AND RECOMMENDATION signed by MAG/JUDGE JOE L. WEBSTER on 7/14/2017. RECOMMENDED that Plaintiff's motions to amend (Docket Entries 51 , 60 ) be GRANTED IN PART AND DENIED IN PART as set forth herein, Defendant Glover's motions to strike (Docket Entries 49 , 53 , 62 ) be GRANTED, and Defendant Glover's motion to dismiss (Docket Entry 28 ) be GRANTED.(Butler, Carol)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
CHESTE,R LILLY,
)
)
Plaintiff,
)
)
)
)
)
)
)
V
DR. CARTER, et al.,
Defendants
1:16CV400
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE IUDGE
This mattet is before the Court upon several motions: Defendant Susan Glover's
motion to dismiss (Docket Entry 28), Plaintiff Chester Lilly's motion to amend complaint
(Docket Entry 51), Defendant Glover's motion to stike, or alternatively, dismiss Plaintiffs
supplement to his complaint (Docket Entry 49), Defendant Glover's second motion to strike
(Docket Entry 53), PlaintifPs motion for leave to fìle an amended complaint @ocket Entry
60), and Defendant Glover's renewed motion to strike
pocket E.rtty 62). These matters
are
ripe for disposition. For the reasons that follow, the Court recommends that Plaintiffls
motions to amend (Docket Entries 51, 60) be granted in part and denied in part, Defendant
Glovet's motions to suike (Docket Enries 49,53,62) l:e granted, and Defendant Glover's
motion to dismiss (Docket E.rtry 28) be granted.
I.
PROCEDURAL BACKGROUND
Plaintiff fìled this
20'16,
S 1983
action against Defendants Dt. Carter and Glover on May 3,
for delibetate indifference to a serious medical need.
(See
generalþ Complaint, Docket
Etttty 2.) Between May 4,201,6, to SeptemberL6,201,6, Plaintiff filed fìve supplements to his
Complaint. (Docket Enuies 3, 5, 23,25,26.) Defendant Glover filed an answer (Docket
Entty 27) and a motion to dismiss on October 1,1,201,6, pursuant to Federal Rule of Civil
Procedure 1,2þ)(6), claiming that Plaintiff has failed to state aclaimagainst her. pocket Entry
28.) On November 7 ,201.6, Plaintiff filed a response in opposition to the motion to dismiss,
asserting Defendant Glover was delibe rately indifferent by ignoring PlaintifFs medical needs.l
(Docket E.ttty 34.) Defendant Glover thereafter filed a reply. (Docket Entry 36.)
This case was scheduled for a hearing on all pretrial matters.
(Jee
Text Order dated
11/22/2016.) Plaintiff fìled several additional motions prior to the date of the hearing.
(See
DocketEntties38,39,40,43,44,45,46.) AtthehearingheldonJanuary24,20lT,theparties
discussed several
of the motions pending before the Court. Plaintiff informed the Court of
his attempts to amend his Complaint. (See'lextOrder dated 1,/24/17.) Plaintiff indicated that
he wanted to add
"D. Loflin"
as
^
defendant to the pending suit. Defense counsel stated that
if the Court were to allow Plaintiff
an opportunity to amend his Complaint, it would not be
opposed so long as the new allegations be raised as to persons other than Defendant Glover.
Defense counsel further asked the Court that no discovery be permitted in this matter until
there was a ruling on Defendant Glover's motion to dismiss. Plaintiff appeared to understand
the positon of Defendant Glover's counsel, and the Court indicated that
it would allow
Plaintiff to supplement his Complaint to add the newly named defendant and assert any
allegations against that individual. (Id.)
t
To the extent Plaintiffs response brief to Defendant Glover's motion to dismiss addresses new
claims or allegations, the Court will not consider them. Foster a. f-isher, No. 1:14-CV-292-MR-DSC,
2016WL900654, at *7 (\ü/.D.N.C. Mar. 9,201,6) (unpublished), afi'd, No. 16-1792,20'1,7 WL2197875
(4th Cir. May 18, 2017) (disregarding allegations in plaintiffs opposition brief which is not a pleading
under Rule 7(a)).
2
Aftet the hearing, Plaintiff filed a supplement to his complaint on January 27,
201,7.
(Docket Ent y 48.) Plaintiff also fìled a motion to amend his complaint. (Docket Entry 51.)
Thereafter, Defendant Glover filed a motion to strike the motion to supplement. (Docket
F,ntry
49.) Additionally, Defendant Glover fìled another motion to strike or
dismiss
allegations against Defendant Glover and response to Plaintiffs motion to amend complaint,
which was also accompanied by a brief. (Docket Entties 53,54.) Plaintiff then filed another
motion for leave to file amended complaint (Docket Entry 60) and Defendant Glover filed
third motion to strike (Docket F,ntry
a
62).
II. FACTUAL BACKGROUND
Plaintiff, proceeding pro se, filed this S 1983 action naming Defendant Glover and
several others in this
matter.
(See
in the custody of the Noth
generalþ Compl.,
Docket Entty 2.) Plain:j.ff is a State prisoner
Caroltna Department
of Public Safety, Division of Adult
Corrections ("NCDPS"), and is currently housed at Âlexandet Cortectional Institute in
Taylorsville, North Caroltna. Plaintiff alleges that while at Piedmont Cortectional Institution
("Piedmont")
in Salisbury, North Carohna,
Defendant Glover, a nurse, was deliberately
indifferent to Plaintiffs medical needs, which resulted in injury to Plaintiff.
(ld.)
More
specifically, Plaintiff claims that Defendant Glover advised Plaintiff to make two sick calls to
acquire his pain medicine, and Plaintiff made 16 sick calls and never acquited his medicine.
Qd. at
3.) Thus, Plaintiff claimed Defendant Glovet lied because she gave Plaintiff ill-advised
informatio". (Id.) Ultimately, Defendant Carter did not prescribe Plaintiff his requested pain
medication
. (Id.) Further, Plaintiffs complaint alleges several further inactions of other
defendants as it relates to Plaintiffs medical needs.
J
(See id; see al¡o
Docket Entries 3,5,23,25,
26.) Plaintiff seeks damages in the amount of $400,000 for pain and suffering, and mental
anguish. (Compl. at 6.)
III.
DISCUSSION
Standard of Review
A. Rule 1.5 Amendments
Rule 15(a) of the Federal Rules of Civil Procedure ptovides that "a pafiy may amend
its pleading only with the opposing party's written consent or the court's leave." Fed. R. Civ.
P. 15(a)(2).
It further
states that
"[t]he court should fteely give leave when justice so requires."
Id. Graning a motion to amend a complaint
is
within the discretion of the Court, "but outtight
refusal to grant the leave without any justifying reason appearing for the denial is not an
exercise
of disctetion."
Foman u.
Dauh,371 U.S. 178, 182 (1962). The Fourth Circuit
has
stated that "fa] disttict court may deny a motion to amend when the amendment would be
prejudicial to the opposing parry, the moving party has acted in bad faith, or the amendment
would be futile." Equal kight¡ Ctr. u. Ni/es Bolton Arncl, 602tr.3d 591,603 (4th Cir. 2010). An
amended complaint is futile
if it
cannot withstand a motion to dismiss
fot failure to
state a
claim pursuant
to Federal Rule of Civil Procedure tZþ)(6); thus, the Court may deny the
motion. Perkin¡
a. United States,ss F'.3d 910,9'17 (4th
Cir. 1995) (addition of negligence claim
futile because case would not survive motion to dismiss).
B. Rule 12(0 Motion to Strike
Pursuant to Rule 1,2(f) of the Federal Rules of Civil Procedure, a court may "stike
from a pleading an insufficient defense or any redundant, immaterial, impertinent, or
scandalous matter" on its own or on motion of a party. Fed. R. Civ. P. 12(Ð; ll/a¡te Mgrt.
4
Holdings, Inc. u,
Gilm0re,252tr.3d31,6,347 (4th Cir. 2001). In reviewing a motion to strike
pursuant to Rule 12(Ð, the Court reviews "the pleading under attackin a light most favorable
to the pleader." Gaet$òrd
u. Pa.
Nat'l Mut. Ca¡. Int. C0.,918 F. Srpp. 2d 453,467 (À{.D.N.C.
201,3). "The Fourth Circuit has recognized that Rule 12(f) motions are generally viewed with
disfavot because striking a portion of a pleading is a drastic remedy." Id. (citalons and
quotations omitted).
C. Dismissal for Failure to State
a Claim
A motion to dismiss pursuant to Rule 12þ)(6) tests the sufficiency of the complaint.
E,dwarcls u. Ciry of Goldsboro, 178
F.3d
sufficient factual matter, âccepted
as
231,,
243 (1999).
,\ complaint
rhar does not "contain
true, to 'state a claim to relief that is plausible on its face"'
must be dismissed. Ashtroft
u.
550 U.S. 544,570 Q007)).
"A claim has factal plausibilitywhen the plaintiff pleads factual
Iqba/,556 U.S. 662, 678 Q00g) (quoting Bell Atlantic' u. Twombþ,
content that allows the court to draw the reasonable inference that the defendant is liable for
the misconduct." Id.;
rce al¡o
Simnon¡ dv Unind Mortg dy l-.oan Inuest., 634 tr.3d 754,768 (4th
Ch. 2011) ("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 plaaible on
its face.") (emphasis in
original)
(intetnal citation and quotation marks omitted). The "court accepts all well-pled facts as true
and construes these facts
in the light most favorable to the plaintiff in weighing the legal
sufficiency of the complaint," but does not consider "legal conclusions, elements of a cause
of action, . . . bare assertions devoid of factual enhancementl,]
.
. unwarranted inferences,
unreasonable conclusions, or arguments." Nemet Cheuro/et, Ltd. u. Consømerffiirs.tvm, Inc.,591.
F.3d 250,255 (4th Cir.2009) (citations omitted). In other words, the standard requires
5
a
plaintiff to articulate facts, that, when accepted
as true, demonstrate the
plaintiff has stated
a
claim that makes it plausible he is entitled to relief. F'ranr.i¡ u. Giacomelli,588 F.3d 186,193 (4th
Cir. 2009) (quoting Iqbal,556 U.S. at 678, and Twombþ,550 U.S. at 551).
Pro ¡e complaints aÍe
Rules of Civil Procedure
.
to be liberally construed in assessing suffìciency under the Federal
Erickson u. Pardu¡ 551 U.S. 89,94 Q007). However, even undet this
liberal consttuction, "generosity is flot
plaintiff's claim for him.
^
fantasyi' and the court is not expected to plead
Bender u. Suburban Ho¡P., Inc.,'1.59
a
F.3d 186, 1,92 (4th Cir. 1998).
"Lllsenl construction is particulady appropriate when a þro se complaint taises civil rights
issues." Moo$t-ll/illiønt
original);
see
u. UpoSdenæ,953
al¡o Brown u. N.C. Dept.
oJ'
F.Supp.2d 677,680 (E.D.N.C. 201,3) (emphasis in
Con , 612
tr
.3d
7
20, 7 22 (4th Cir. 201,0).
Analysis
PlaintifPs Amended Pleadings
In light of the Court's discussion at the oral heating on Januaty 24,201,7 , Plaintiff filed
a supplement
to the Complaint,
as
well as his two motions to amend. Q)ocket Entries 48,51.,
60.) Âs requested at the hearing, and in the interest of justice, Plaintiffs motion to amend his
Complaint to add "D. Loflin"
^s
a defendant should be
granted. However, as to any further
allegations against Defendant Glover, the Court should sttike those allegations
in
the
amended/supplemental pleadings as they exceed the scope of leave previously granted by the
Court, thereby prejudicing Defendant Glover in this action. Thus, Plaintiffs motions to
amend (Docket trntries 51, 60) should be granted only to the extent they set forth allegations
against
"D. Loflin." Having recommended that any further allegations against Defendant
6
Glover in the amended pleadings be stricken, the Court should grant Defendant Glover's
motions to strike (Docket Enuies 49,53,62).
Defendant Gloverts Motion to Dismiss
Defendant Glover moves for a motion to dismiss for failure to stâte a claim as to
PlaintifFs S 1983 claim for deliberate indifference. (Docket Entry 29.) Defendant Glover
argues that the motion
to dismiss should be granted because: (1) no injury resulted from
Defendant Glover's actions or inactions, thus resulting
in no
deliberate indifference; Q)
Defendant Glover is entitled to qualified immunity; (3) Defendant Glover is entitled to
Eleventh A.mendment soveteign immuniry; (4) Plaintiffs claim for injunctive relief is moot;
and (5) as to any alleged state law medical malpractice claim, Plaintiff has failed to comply with
the pleading requirement of rule
t.
90 of the North Caro\na Rules of Civil Procedure.
(Id.)
Deliberate Indifference
As Defendant Glover correctly asserts, Plaintiff has failed to state a clatm of deliberate
indifference as to the pain medication received. (Docket E.ttty 29 at 8-11.) It is well settled
that not "every claim by a prisoner that he has not received adequate medical treatment states
a [constitutional]
violation." Esîette u. Gamble, 429 U.5.97 ,1,05 (1,97 6). "Deliberate indifference
is a very high standard
- a showing
of mere negligence will not meet it." Cralson
u. Peed, 1.95
F.3d692,695(4thCir. 1999). Rather,the"deliberateindifference"prongrequiresPlaintiffto
make "two showings:"
First, the evidence must show that the official in question
subjectively recognized a substanaal risk of harm. It is not
enough that the officers should have recognized it; they actually
must have perceived the risk. Second, the evidence must show
that the official in question subjectively recognized that his
actions were "inappropriate in light of that tisk." As with the
7
subjective awareness element, it is not enough that the official
should have recognized that his actions were inappropriate; the
official action must have recognized that his actions were
insuffìcient.
Pani¡h ex re/. I-ee u. Cleueland,372F,3d294,303 (4th Cir. 2004) (citations omitted) (emphasis in
ortginal). "Obduracy or wantonness, not inadvertence or good faith error, chancterizes
deliberate indifference." Gib¡on u. Foh7r 963 tr.2d 851, 853 (6th Cir. 1,992) (citation omitted).
To constitute deliberate indifference to
so grossly incompetent, inadequate,
a serious medical need,
of excessive
as
"the teatment must be
to shock the conscieflce or to be intolerable
to fundamental fairness." Miltier u. Beorn, 396 F.2d 848, 851 (4th Cir. 1990). Thus, "mere
negligence or malpractice" does not constitute deliberate indifference. Id. at 852. Similarly,
"[df isagreements between an inmate and a physician over the inmate's proper medical care
does not state a S 1983 claim unless exceptional circumstances are alleged." Wright u. Collins,
7
66 F.2d 841,849 (4th Cir. 1985) (citation omitted). It is well sertled, therefore, that a medical
need serious enough to give rise to a constitutional claim involves a condition that places the
inmate at a substantial risk of serious harm, usually loss of life or permanent disability, or
condition for which lack of treatment perpetuates severe pain.
a
t'-arrner u. Brennan, 51,1U.S. 825,
832-33, (1994). Also, to hold a medical professional liable, that ptofessional must have had
authority to perform the action. Manlelt
a. S.
Health l)artnen, Inc., 5:1,4-CV-111-F'D17, 2014
ìfL
5509183, at x2 flW.D.N.C. Oct. 31, 201,4) (unpublished). Further, the refusal by a medical
ptofessional to give an inmate anl ptescttbed pain medication can, in some instances, amount
to deliberate indiffere nce. Carter u. U /ep, No.
1 :1
3CY 1,425 LMB/JFA , 2014
WL
3421,515, at *3
(E.D. Va. July 10, 2014) (citation omitted), dismixed, 585 F. Âpp'" 46 (4th Cir. 2014)
(unpublished).
8
Flere, Plaintiffs own allegations demonstrate that Defendant Glover had no authodty
to prescribe medicine. Plaintiff stipulates that he was told by Defendant Glover that he would
have
"to put in one sick call and 2 follow-up to get [his] pain pill." (Docket Entty 2 at 3.)
Here, Plaintiffs statement supports the implication that Defendant Glover, a nurse, had no
authority to prescribe medicine, but assisted Plaintiff with ditection on how to acquire his
requested medicine by making follow-up calls.
(d.) What
amounts to an explanation of the
sick call appointment procedure by Defendant Glover does not constitute a violation of
a
serious medical need. Having no authority to prescribe the medication, Plaintiffs allegations
against Defendant Glover regarding her alleged failure
medtless. Manley
u.
to prescribe Plaintifls medicine
is
S. Ilealth Partners,.Iør:, No. 5:1,4-CY-111-FDìø, 201.4WL 55091.83, atx2
flX/.D.N.C. Oct. 31, 2014) (unpublished) ("Plaintiff has failed to state a claim of delibetate
indifference against the defendant nurses because by his own admission, the nurses believed
that they could not provide him with the medication until they were authorized to do so by an
unnamed doctor.");
see ctlso
Børnett
u.
Alørnant;e Cry. Sheriff Office Det. C/r.,
No. 1:14CY732,201,6
WL 1389606, at x4 (1\4.D.N.C. Apr. 7 ,201,6) (unpublished) (citation omitted) ("Nurses cannot
be found liable for something they do not have authorizaion to do."); Parkeru.
1:13CV488,201,5WL1,474909,at*7 (M.D.N.C. Mar. 31,,201,5)
BaritNo.
reþort and retvmmendation adopted,
No. 1:13CV488, 2015 SøL 2169148 (N4.D.N.C. May 8, 201,5) øf'?d, 623 F. App'x 82 (4th Cir.
201,5)
(finding that because
alleged inaction
meritless); Smith
in
u.
a nurse
regards
cannot prescdbe medication, "Plaintiffs assertion that het
to pain
medicine amounted
to
deliberate indifference" was
Harrh,401 F. App'" 952,953 (5th Cir. 201,0) (holding that because
9
a nurse
could not write prescriptions, the plaintiff failed to establish that she acted with deliberate
indifference by not prescribing him pain medication).
Even if Defendant Glovet did have the authority to prescribe narcotic pain medicine,
"numerous fedetal courts have determined that, absent evidence of malicious purpose, the
failure of prison medical personnel to provide pain medication of suffìcient strength does not
constitute deliberate indifference." Par,ëer u. Buris,2015 WL 1,474909, at *7 (collecting cases).
Indeed, Plaintiffs own allegations indicate that he received some medications:
"I
was forced
to take 2 meds for depression, and a[n] anti-inflammatory, and nothing for muscles pain."
(Compl. at 3.) Plaintiff also states: "[In September] I was given [nitroglycenn]." Qd.) ,\lthough
"flt
is ttue that the refusal to give an inmate anl prescitbed pain medication can amount to
deliberate indiffetence," in our case Plaintiff claims to have teceived some pain medication,
namely nitroglycerin. Cørter,201/WL 342151,5, at x3. Thus, everr
if Defendant Glover could
prescribe medicine, a disagreement in the type of medication provided here does not constitute
a deliberate indifference
2.
claim. ll/right, 7 66 F.2d at 849.
Qualified Immunity
Next, Defendant Glover argues that she is entitled to qualified immunity from
Plaintiffs action where Plaintiff has failed to allege a constitutional violation. @ocket Entry
29 at 1,3.) Undet the doctrine of qualified immunity, Defendant Glover is "generally shielded
from liability for civil damages insofar as þer] conduct does not violate cleady established
statutory ot constitutional rights of which a teasonable person would have known." Harlow
Lìit4¿emld,457 U.S. 800, 818 (1982). "(Jnless the
plaintiffs allegations
state a claim of
u.
violation
of cleady established law, a defendant pleading qualified immunity is entitled to dismissal
10
befote the commencement of discovery." Cloaninger
u.
McDeuitt,555 F'.3d 324,330 (4th Cir.
2009)(citaion omitted); rce also Jenkins u. Medford, 11,9 F.3d 1156, 1,159 (4th Ck. 1,997)
("Qualifìed immunity may be raised in a motion to dismiss."). In the instant case, having
found that Plaintiff has not stated a claim for a constitutional violation, Defendant Glover
should be entitled to qualifìed immunity.
See
Jacknrc u. Holley 666 F.
App'" 242,244-45 (4th
Cu.201,6) (noting that the "conduct about which fplaintiffl complains [did] not amount to aû
Eighth Amendment," thus "fdefendant] was entitled to qualifìed immunity and her motion ro
dismiss should have been granted by the district court.").
3.
Eleventh Amendment
Next, Defendant Glover argues that Plaintiffs $ 1983 monetary claim against her in
her official capacity is barred by Eleventh Amendment sovereign immunity. pocket Etrty
29 at 14-1,5.) The Eleventh Âmendment prohibits actions in federal court by individuals
against a state unless the state has consented to suit or unless Congress has lawfully abrogated
the states' Eleventh Amendment immuniry.
Ballenger u. Owent,352
tr.3d 842, 844-45 (4th Cir.
2003). The doctine of sovereign immunity under the Eleventh Amendment applies not only
to actions in which the State is a named defendant, but also to actions against its departments,
institutions, and agencies. Additionally, in North Carolina, "[a]ctions against officers of the
State in theit official capacäes are actions against the State for the purposes of applying the
doctrine of [sovereign] immunity." Green u. Kearne;/,203 N.C. ,tpp. 260, 268,690 S.E.2d 755,
762 Q01,0) (citation omitted);
¡ee al¡o
Malli¡
u. Sechreú,347
N.C. 548, 554,495 S.E.2d 721,725
(1998) ("[O]fficial-capacity suits are merely another way of pleading an action against the
governmental
entity.'). Additionally, compensatory
1,1
damages
^te
unavailable
in
official
capa'ctty
suitsundetS 1983. Big:r.Meadowr^,6óF.3d 56,61, (4thCir. 1995). Here,asuitagainst
Defendant Glover in her official capacity is a suit against the NCDPS and North Carolina.
Neither has consented nor waived .immunity; therefore, any monetary clarms against
Defendant Glover in her official capaciry should be dismissed.
4, Iniunctive Relief
As Defendant Glover correctly stated, Plaintiffs request for injunctive relief pertaining
to Plaintiffs $ 1983 claim for deliberate indifference to a serious medical need should be
dismissed as moot because Plaintiff has been tansferred to a different correctional institution.
pocket Entty 29 at
1,5-1,6.) "[r\]s a general rule, a prisoner's transfer
or
release
from
a
particular prison moots his claims for injunctive and declaratory relief with respect to his
incarcemion there." I\endelman u. Roøre,569 F.3d 182, 186 (4th Cir. 2009). To the extent
injunctive telief is sought, Plaintiff is no longet incarcerated at Piedmont and thus no longer
subject to the challenged conditions in his claims. Thus, Plaintiff's claim fot injunctive relief
is moot due to his transfer to another prison facility.
5.
Recuirements of Rule
9lil
Defendant Glover also asserts that Plaintiffs medical malpractice claim, to the extent
alleged, fails because he did not obtain an expert review
of "the medical care and.all medical
records" before fìling a lawsuit. (Docket Etttry 29 at
(citing N.C. Gen. Stat. $ 1A-1, Rule
9(,)
)) In North
1,6
Carohna, a plaintiff alleging medical malpractice must comply with North
Carohra Rule of Civil Procedute 9O which requires a plaintiff to include in his complaint an
assertion that that an expert in the same field reviewed the medical cate at issue and is willing
to testify that the medical care did not comply with the applicable standard of care.
t2
-1¿¿
N.C.
R. Civ. P. 90). Failure to comply with Rule 9(j) is grounds for dismissal.
State¡ 528 F.
App'r 289,292 (4th Cir. 2013) (unpublished) (fìndingin
Act ("FTCA")
case, "that, where applicable,
See
Uttlepaige u. Unind
a Federal Tort Claims
a Rule 90) certifìcation is a
mandatory
requirement for a plaintiff in a North Catolina medical malpractice action."); Boala u. United
States, 1.:1.1cv366, 2013
WL
5962935, at *2 (À4.D.N.C. Nov. 7, 201,3); Moore u. Pitt Cnfl Men.
FIatþ.,139 F'.Supp.2d71,2,71,3-1,4 (E,.D.N.C. 2001). The only exception to this
de
is where
"[t]he pleading alleges facts establishing negligence under the existing corrrnon-law doctine
of
re¡
þv
loquitur." Rule 9(iX3).
Here, "Plaintiffs complaint fails to allege that he obtained certifìcation from an expert
willing to testify that his treating medical personnel did not comply with the applicable
standard of
c fe."
Deal u. Cent. Pri¡on Hotp., No. 5:09-CT-31,82-trL,2011,WL 322403, at*4
(E.D.N.C. Jan. 27, 201,1) (unpublished). His þro
Lv
prisonet status does not excuse his
obligation to comply with Rule 90's certificatìon requirements.
No. 1:08CV838(LOIJFA), 2010 WL 256595, at x3 n.5 (E.D.V
See e.g.,
Snìth u. United Stater,
a. Jan. 19, 20'1,0) (unpublished)
(citations and quotations omitted) ("It has been held in several occasions that federal inmates
proceeding
pro teunder the FTCA are not exempt from the certifìcate of merit requirement,
despite the fact that his or her prisoner status adds hurdles
to
any attempt
expert."). Also, Plaintiff has failed to suffìciently allege the doctrine of
to the extent Plaintiff
asserts a state law claim
Glover, the motion to dismiss should be granted.
t3
res
to obtain
an
þn loquitor. Thus,
for medical malpractice against Defendant
IV. CONCLUSION
Based upon the foregoing reasons,
IT IS HEREBY RECOMMENDED that
Plaintiffs motions to amend (Docket Enries 51, 60) be GRANTED
IN
DENIED IN PART
to strike (Docket
as set forth herein, Defendant Glover's motions
PART AND
Entries 49,53,62)be GRANTED, and Defendant Glover's motion to dismiss (Docket Entty
28) be GRANTED.
L
\IHmrer
Stuc* Irl4gistrrtr Jucþ
July 1.4,2017
Durham, North Carolina
14
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