CARVER v. VALLIERE et al

Filing 49

MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE JOE L. WEBSTER on 12/04/2019, that Movant Defendants' Motion for Summary Judgment (Docket Entry 40 ) be GRANTED with respect to (1) all claims seeking declaratory or injunctive relief, (2) all claims seeking monetary damages against Movant Defendants in their official capacity, and (3) as all claims brought under the Eighth Amendment. FURTHER RECOMMENDED that al l claims seeking monetary damages against Movant Defendants in their individual capacities for intentional infliction of emotional distress be dismissed without prejudice to Plaintiff's pursuit of those claims in state court. (Garland, Leah)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
TOMMY CARVER,
Plaintiff,
v.
JOESPH VALLIERE, et al.,
Defendants.

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1:17CV986

MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
This matter is before the Court on Defendants Joseph Valliere, Catherine Brown, Mike
Williams, Susan Glover, Kimberly Click, and Deana Loflin’s (hereinafter collectively “Movant
Defendants”) motion for summary judgment. (Docket Entry 40.) Plaintiff Tommy Carver
has filed a response. (Docket Entry 47.) For the reasons stated herein, the Court will
recommend that Movant Defendants’ motion for summary judgement be granted.
I. BACKGROUND
A. The Parties
Plaintiff is a pro se prisoner of the State of North Carolina. (Amended Complaint ¶¶ IIIIV, Docket Entry 24.) While Plaintiff has been incarcerated in Harnett Correctional Institute
since December 2017, the facts here arise from a prior period of incarceration in Piedmont
Correctional Institute (hereinafter “Piedmont”), a facility of the North Carolina Department
of Public Safety (hereinafter “NCDPS”). (Am. Compl. ¶ IV.)
Defendant Valliere is the Correctional Facility Administrator of Piedmont. (Affidavit
of Joseph Valliere ¶¶ 3-4, Docket Entry 41-1.) Defendant Brown is currently an Assistant

Superintendent IV at Piedmont, and during all relevant times served in that capacity or as a
Correctional Captain. (Affidavit od Catherine Brown ¶¶ 3-4, Docket Entry 41-2.) Defendant
Williams is an Assistant Superintendent of Programs II at Piedmont. (Affidavit of Mike
Williams ¶¶ 3-4, Docket Entry 41-3.) Defendant Glover is a Nurse Clinician I at Piedmont.
(Affidavit of Susan Glover ¶¶ 3-4, Docket Entry 41-4.) Defendant Click began working at
Piedmont in March 2014 as a contract nurse, but later was hired full-time and became a Lead
Nurse. (Affidavit of Kimberly Click ¶¶ 3-4, Docket Entry 41-5.) Defendant Loflin is a Nurse
Supervisor at Piedmont. (Affidavit of Donna Loflin ¶¶ 3-4, Docket Entry 41-6.)
B. Facts
The following facts arise from the parties’ affidavits and exhibits.
Plaintiff suffers from a number of ailments, including bilateral knee arthritis, lumbar
degenerative disk disease, cirrhosis, and chronic obstructive pulmonary disease. (Affidavit of
Tommy Carver ¶ 3, Docket Entry 48.) He has received several surgeries, including cervical
fusion and rotator cuff repair. (Id.) He suffers from chronic severe pain in his back, shoulders,
and feet. (Id.)
The issue at the core of Plaintiff’s claims is whether Movant Defendants improperly
withheld or failed to renew methadone prescriptions that he had used to treat his chronic
pain. 1 Beginning in 2010, Plaintiff was prescribed and received methadone to treat his pain.

Plaintiff’s response brief and affidavit allege additional wrongdoing by some or all of
Movant Defendants, including retaliation, overriding medical orders, and failing to provide Plaintiff
adequate shoes for his foot pain. (See, e.g., Docket Entry 47 at 5; Carver Aff. ¶¶ 13, 17.) However,
these claims are not alleged in the amended complaint or grievances with sufficient specificity (see
Am. Compl. ¶ IV; Ex. Grievance 3500-2016-3BB-03359, Docket Entry 41-7; Ex. Grievance 35002017-3BB-00239, Docket Entry 41-8; Ex. Grievance 3500-2017-4DB-05261, Docket Entry 41-9.)
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(Carver Aff. ¶ 13.) However, on September 26, 2014, NCDPS issued a policy, effective
October 6, 2014, requiring all provision of methadone to outpatients to be approved by the
Utilization Review Board (hereinafter “URB”). (Ex. September 26, 2014 Urgent Memo at 1,
Docket Entry 41-13.) Plaintiff appears to have continued to receive methadone after the
commencement of that policy, though the URB twice failed in 2017 to approve requests for
renewal from one of Plaintiff’s providers. (See Ex. January 23, 2017 UR Review at 2, Docket
Entry 41-28; Ex. February 13, 2017 UR Review at 2, Docket Entry 41-32.) Plaintiff thereafter
was weaned off of methadone and received other pain medication that he states was not
effective. (Ex. March 24, 2017 UR Review at 2, Docket Entry 41-33; Carter Aff. ¶¶ 29-30.)
Plaintiff commenced the instant action on October 27, 2017 by filing a complaint.
(Docket Entry 2.) Plaintiff filed an amended complaint on January 16, 2019 against Movant
Defendants as well as several others who have not received service of process. (See Am.
Compl. ¶ I(B); Docket Entries 32, 33.) On May 30, 2019, Movant Defendants filed the instant
motion for summary judgment (Docket Entry 40) as well as an accompanying memorandum
(Docket Entry 41). Plaintiff filed a response on September 11, 2019. (Docket Entry 47.)
Movant Defendants did not file a reply. The matter is now ripe for disposition.

“[A] plaintiff may not amend his complaint through arguments in his brief in opposition to
summary judgment.” Rutherford v. Cannon, No. CIV.A. 8:09-2137, 2010 WL 3905386, at *6 (D.S.C.
Sept. 2, 2010) (Hendricks, M.J.), recommendation adopted, No. 8:09-2137-HMH-BHH, 2010 WL
3834448 (D.S.C. Sept. 27, 2010). Furthermore, several of these claims attribute healthcare treatment
decisions to Defendants Valliere, Brown, and Williams, though the record demonstrates that they
did not personally provide medical treatment to inmates. (See Valliere Aff. ¶¶ 9-10; Brown Aff. ¶¶ 910; Williams Aff. ¶¶ 9-10.) Therefore, these additional claims fail.

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II. DISCUSSION
Summary judgment is appropriate when there exists no genuine issue of material fact
and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Zahodnick
v. Int’l Bus. Machs. Corp., 135 F.3d 911, 913 (4th Cir. 1997). The party seeking summary
judgment bears the initial burden of coming forward and demonstrating the absence of a
genuine issue of material fact. Temkin v. Frederick County Comm’rs, 945 F.2d 716, 718 (4th Cir.
1991) (citing Celotex v. Catrett, 477 U.S. 317, 322 (1986)). Once the moving party has met its
burden, the non-moving party must then affirmatively demonstrate that there is a genuine
issue of material fact which requires trial. Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986). There is no issue for trial unless there is sufficient evidence favoring
the non-moving party for a fact finder to return a verdict for that party. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 250 (1986); Sylvia Dev. Corp. v. Calvert County, Md., 48 F.3d 810, 817
(4th Cir. 1995). Thus, the moving party can bear his burden either by presenting affirmative
evidence or by demonstrating that the non-moving party’s evidence is insufficient to establish
his claim. Celotex, 477 U.S. at 331 (Brennan, J., dissenting).
When making the summary judgment determination, the Court must view the
evidence, and all justifiable inferences from the evidence, in the light most favorable to the
non-moving party. Zahodnick, 135 F.3d at 913; Halperin v. Abacus Tech. Corp., 128 F.3d 191, 196
(4th Cir. 1997). However, the party opposing summary judgment may not rest on mere
allegations or denials, and the court need not consider “unsupported assertions” or “selfserving opinions without objective corroboration.” Anderson, 477 U.S. at 248-49; Evans v.
Techs. Applications & Serv. Co., 80 F.3d 954, 962 (4th Cir. 1996).
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A. Mootness
The Court first considers whether Plaintiff’s claims seeking declaratory relief are moot.
While the parties do not raise the issue, “[m]ootness is a jurisdictional question and may be
raised sua sponte by a federal court at any stage of proceedings.” United States v. Spring, 715 F.3d
535, 540 (4th Cir. 2013) (citing North Carolina v. Rice, 404 U.S. 244, 246 (1971)). “A case
becomes moot—and therefore no longer a ‘Case’ or ‘Controversy’ for the purposes of Article
III—‘when the issues presented are no longer “live” or the parties lack a legally cognizable
interest in the outcome.’” Already, LLC v. Nike, Inc., 568 U.S. 85, 91 (2013) (quoting Murphy
v. Hunt, 455 U.S. 478, 481 (1982) (per curiam). “[A]s a general rule, a prisoner’s transfer or
release from a particular prison moots his claims for injunctive and declaratory relief.”
Rendelman v. Rouse, 569 F.3d 182, 186 (4th Cir. 2009); see also Incumaa v. Ozmint, 507 F.3d 281,
286-287 (4th Cir. 2007). Here, Plaintiff is no longer incarcerated in Piedmont. (Am. Comp.
¶ IV.) Therefore, any claims seeking declaratory or injunctive relief are moot and should be
dismissed.
B. Sovereign Immunity
The Court next considers Movant Defendants’ argument that any claims seeking
monetary damages that are brought against them in their official capacities are barred by the
Eleventh Amendment and sovereign immunity. “[A] suit against a state official in his or her
official capacity is not a suit against the official but rather is a suit against the official’s office.”
Will v. Michigan Dept. of State Police, 491 U.S. 58, 71 (1989) (citing Brandon v. Holt, 469 U.S. 464,
471 (1985)). It follows that just as “the Eleventh Amendment bars a damages action against
a state in federal court,” it also bars suits against state officials in their official capacity. Kentucky
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v. Graham, 473 U.S. 159, 169 (1985). Here, all Movant Defendants are North Carolina state
officials. Therefore, all claims seeking monetary damages against Movant Defendants are
barred and should be dismissed.
C. Individual-Capacity Claims
The Court finally considers the claims Plaintiff’s claims seeking damages against
Movant Defendants in their individual capacities.
A. Eighth Amendment
Plaintiff’s Eighth Amendment claims against Movant Defendants should be
dismissed. 2 “The Eighth Amendment, which prohibits infliction of ‘cruel and unusual
punishments,’ applies to claims by prisoners against corrections officials challenging
conditions of confinement.” Porter v. Clarke, 923 F.3d 348, 355 (4th Cir. 2019) (citations
omitted); see also Farmer v. Brennan, 511 U.S. 825, 832 (1994) (“The [Eighth] Amendment also
imposes duties on [correctional] officials, who must provide humane conditions of
confinement . . ..”). Eighth Amendment condition-of-confinement claims are evaluated by a
two-part test that has both an objective and subjective component. Id. “First, the deprivation
alleged must be, objectively, sufficiently serious.” Farmer, 511 U.S. at 834 (internal citations
and quotation marks omitted). To be “sufficiently serious,” “a prison official’s act or omission
must result in the denial of ‘the minimal civilized measures of life’s necessities.’” Id. (quoting
Rhodes v. Chapman, 452 U.S. 337, 347 (1981). Second, “a prison official must have a sufficiently

Movant Defendants argue that they are entitled to qualified immunity. The Court does not
find qualified immunity applicable here, as Plaintiff has alleged facts that make out a violation of a
constitutional right that is clearly established at the time of violation. See Pearson v. Callahan, 555 U.S.
223, 232 (2009). However, as the Court discusses herein, Plaintiff’s claim still fails because the facts
demonstrate that the alleged violations were not committed by the Movant Defendants.
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culpable state of mind.” Id. (internal quotation marks omitted) (quoting Wilson v. Seiter, 501
U.S. 294, 297 (1991)). In this context, “that state of mind is one of ‘deliberate indifference’ to
inmate health or safety.” Id. (quoting Wilson, 501 U.S. at 302-303). “A claim of deliberate
indifference . . . implies at a minimum that defendants were plainly placed on notice of a danger
and chose to ignore the danger notwithstanding the notice.” White ex rel. White v. Chambliss,
112 F.3d 731, 737 (4th Cir. 1997). “[A] prison official cannot be found liable under the Eighth
Amendment for denying an inmate humane conditions of confinement unless the official
knows of and disregards an excessive risk to inmate health or safety . . ..” Farmer, 511 U.S. at
837.
Here, the record demonstrates that Movant Defendants were not responsible for
creating or remedying the sufficiently serious deprivations alleged by Plaintiff. None of the
Movant Defendants had the authority to renew the authorization of the methadone
prescription, as that responsibility was entirely entrusted to the URB. 3 To the extent that
Plaintiff argues that the URB’s failure to approve methadone prescriptions was due to
deficiencies in the requests for approval sent by Defendants Glover, Click, or Loflin (see Carver
Aff. ¶ 34), this is insufficient to establish deliberate indifference. Plaintiff’s remaining Eighth

Amendment claims should accordingly be dismissed.

Plaintiff states in his affidavit that his psychologist informed him that Defendants Valliere
and Brown “gave the order discontinue” his methadone prescriptions. (Carver Aff. ¶ 38.) Medical
documents in the record indicate that the discontinuation was due to the failure of the URB to
approve the new prescription methadone. (See Ex. January 23, 2017 UR Review at 2, Docket Entry
41-28.) This is not a genuine dispute of material fact because nothing indicates that Defendants
Valliere and Brown were not acting in accordance to NCDPS policy that all outpatient methadone
prescriptions be approved by the URB. (See September 26, 2014 Urgent Memo at 1, Docket Entry
41-13.)
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B. Intentional Infliction of Emotional Distress
Plaintiff’s state law claims for intentional infliction of emotional distress remain. While
it may exercise supplemental jurisdiction over this claim, the Court can decline to exercise such
discretion if it has dismissed all claims that arise under the Court’s original jurisdiction. See 28
U.S.C. §§ 1367(a), 1367(c)(3). “Certainly, if [all] federal claims are dismissed before trial . . .,
the state claims should be dismissed as well.” United Mine Workers of Ame. v. Gibbs, 383 U.S.
715, 726 (1966). Because the undersigned has recommended the dismissal of all federal claims
at this pre-trial stage, the Court should decline to exercise supplemental jurisdiction and
accordingly dismiss the claim for intentional infliction of emotional distress without prejudice.
III. CONCLUSION
For the reasons stated herein, IT IS HEREBY RECOMMENDED that Movant
Defendants’ Motion for Summary Judgment (Docket Entry 40) be GRANTED with respect
to (1) all claims seeking declaratory or injunctive relief, (2) all claims seeking monetary damages
against Movant Defendants in their official capacity, and (3) as all claims brought under the
Eighth Amendment.
IT IS FURTHER RECOMMENDED that all claims seeking monetary damages
against Movant Defendants in their individual capacities for intentional infliction of emotional
distress be dismissed without prejudice to Plaintiff’s pursuit of those claims in state court.
_________________________
Joe L. Webster
United States Magistrate Judge
December 4, 2019
Durham, North Carolina
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