HARRIS v. POOLE et al
Filing
36
MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 04/12/2019, that the Motion to Dismiss of Defendant Grewal (Docket Entry 21 ) be granted in part and denied in part, in that the Court should permit Plaintiff's Section 1983 deliberate indifference claim (but not any state-law medical malpractice claim) to proceed against Defendant Grewal. (Garland, Leah)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
DERWIN GERRARD HARRIS,
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
KATY POOLE, et al.,
Defendants.
1:18CV378
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
This
case
comes
before
the
undersigned
United
States
Magistrate Judge for a recommendation on the Motion to Dismiss of
Defendant [Bikramjit] Grewal (Docket Entry 21).
For the reasons
that follow, the Court should grant in part and should deny in part
the
instant
Motion,
in
that
the
Court
should
conclude
that
Plaintiff’s Complaint (Docket Entry 2) states a claim against
Defendant Grewal under 42 U.S.C. § 1983 for deliberate indifference
to a serious medical need, but that any state-law claim for medical
malpractice fails as a matter of law.
Introduction
Via a “Form To Be Used by Prisoners in Filing a Complaint
under [Section] 1983” (id. at 1 (all-cap font omitted)), Plaintiff
(a prisoner of the State of North Carolina) commenced this action
against various Scotland Correctional Institution (“SCI”) officials
and Defendant Grewal, an alleged member of the “Medical Staff” at
Central Prison (id. at 2).
According to the Complaint:
“In August of 2016 on the way to the yard at [SCI, Plaintiff]
slipped [and] hyperextend[ed his] right leg on a sidewalk full of
debris.
Days later [Plaintiff] put in a sick-call requesting to
see a doctor . . . .
Over the next 8 months[, Plaintiff did] not
rec[eive]
medical
adequate
occasions.”
(Id. at 3.)
attention
on
several
different
Plaintiff “finally recieved [sic] an
M.R.I. in the month of April 2017 and was taken to Central Prison
on 06/23/17 to recieve [sic] the results.
[Plaintiff] was then
seen by [Defendant] Grewal who went over [the] M.R.I.”
(Id.)
Defendant Grewal told Plaintiff that “their [sic] was no damage
shown and no further medical attention pertaining to [his] leg was
needed.”
(Id.)
In August 2017:
[While] still dealing with the same pain[, Plaintiff] put
in a sick-call at Whiteville Correctional [Institution
(“WCI”)] where he was later seen by [a] doctor who
reviewed [Plaintiff’s] M.R.I. and acknowledged [to
Plaintiff that his] M.R.I. showed abnormal swelling which
alone show[ed] signs of an injury and [the doctor further
stated that] he couldnt [sic] understand why [Plaintiff]
hadnt [sic] recieved [sic] further medical attention.
(Id.)
Officials at WCI “did an investigation pertaining to the
situation
and
came
to
the
conclusion
to
get
[Plaintiff]
an
orthapedic [sic] immediately [and he] ha[s] sense [sic] then been
recieving
[sic]
adequate
medical
attention.”
(Id.
at
3-4.)
Plaintiff “seek[s] monetary damages against [Defendant] Grewal in
his individual capacity for telling [Plaintiff that his] M.R.I. was
negative, showed no damage, and no further medical attention
2
pertaining to [his] leg was needed which months later [Plaintiff]
found out not to be true.”
(Id. at 4.)
“[P]ursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure, and Rule 9(j) of the North Carolina Rules of Civil
Procedure,
[Defendant
Grewal
has]
Complaint be dismissed . . . .”
Docket Entry 22 (Brief).)
move[d]
that
Plaintiff’s
(Docket Entry 21 at 1; see also
Plaintiff has responded (Docket Entry
27) and Defendant Grewal has replied (Docket Entry 28).
Discussion
In reviewing the instant Motion, the Court must “accept the
facts alleged in [Plaintiff’s C]omplaint as true and construe them
in the light most favorable to [him].”
Coleman v. Maryland Ct. of
App., 626 F.3d 187, 189 (4th Cir. 2010), aff’d sub nom., Coleman v.
Court of App. of Md., 566 U.S. 30 (2012).
The Court also must
“draw all reasonable inferences in favor of [ P]laintiff.” E.I. du
Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 440 (4th
Cir. 2011) (internal quotation marks omitted). Finally, because of
Plaintiff’s pro se status, the Court must “liberally construe[]”
his Complaint, Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal
quotation marks omitted), although 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,” Giarratano v. Johnson, 521 F.3d 298, 304 n.5 (4th
Cir. 2008) (internal quotation marks omitted).
3
Accordingly, to survive a Rule 12(b)(6) motion, a complaint
(even a pro se complaint) must “contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on
its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal
citations omitted) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007)).
This standard “demands more than an unadorned,
the-defendant-unlawfully-harmed-me accusation.”
Id.
“Threadbare
recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.”
Id.
Defendant Grewal has argued that “Plaintiff’s allegations
amount
to
claims
of
‘negligence,
medical
malpractice,
and
disagreement with medical treatment, which claims do not support
relief under [Section] 1983.’”
(Docket Entry 22 at 9 (quoting
Gregory v. Prison Health Servs., Inc., 247 F. App’x 433, 435 (4th
Cir. 2007)).
More specifically, Defendant Grewal would have the
Court rule that “[t]he only thing . . . Plaintiff has plausibly
alleged . . . is that [Defendant] Grewal misinterpreted Plaintiff’s
MRI results.
This is not sufficient to maintain a lawsuit based on
deliberate indifference to a serious medical need, and Plaintiff’s
Complaint
dismissed.”
against
[Defendant]
(Id. at 10.)
Grewal
should
therefore
be
The Court should reject that argument,
because (as documented in the Introduction) the factual allegations
in the Complaint go farther than Defendant Grewal has acknowledged
and (when viewed in the light most favorable to Plaintiff with the
4
benefit of all reasonable inferences) would permit a reasonable
fact-finder to conclude that Defendant Grewal exhibited deliberate
indifference to Plaintiff’s serious medical need, by failing to
treat his obvious leg injury that required professional care.
In that regard, “when the State by the affirmative exercise of
its power so restrains an individual’s liberty that it renders him
unable to care for himself, and at the same time fails to provide
for his . . . medical care . . .[,] it transgresses the substantive
limits on state action set by the Eighth Amendment and the Due
Process Clause.”
DeShaney v. Winnebago Cty. Dep’t of Soc. Servs.,
489 U.S. 189, 200 (1989).
To make out a constitutional claim for
deprivation of medical care, Plaintiff must show that Defendant
Grewal
“acted
with
‘deliberate
indifference’
(subjective)
to
[Plaintiff’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 . . . .”
Id. (internal quotation marks omitted).
Coordinately, a defendant displays deliberate indifference if he or
she knows that an inmate faces a risk of harm due to a serious
medical need and that the defendant’s “actions were insufficient to
mitigate the risk of harm to the inmate arising from [that] medical
need[].”
Id. (emphasis and internal quotation marks omitted); see
also Scinto v. Stansberry, 841 F.3d 219, 225 (4th Cir. 2016) (“To
prove deliberate indifference, plaintiffs must show that ‘the
5
official knew of and disregarded an excessive risk to inmate health
or safety.’” (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994))
(internal brackets 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, 511 U.S. at 835.
“It requires
that a [defendant] actually know of and disregard an objectively
serious condition, medical need, or risk of harm.”
De’lonta v.
Johnson, 708 F.3d 520, 525 (4th Cir. 2013) (internal quotation
marks omitted).
A plaintiff can meet that standard by showing
“that a [defendant] knew of a substantial risk from the very fact
that the risk was obvious.”
quotation marks omitted).
Scinto, 841 F.3d at 226 (internal
Moreover, “failure to respond to an
inmate’s known medical needs raises an inference of deliberate
indifference to those needs.” Id. (internal brackets and quotation
marks omitted).
De’lonta
and
Consistent with the foregoing statements from
Scinto,
the
Fourth
Circuit
recently
reversed
a
district court’s dismissal of a deliberate indifference claim where
the plaintiff “alleged that his doctors acknowledged some symptoms
but ignored most, disregarded abnormal test results, and failed to
treat
any
of
his
symptoms
effectively,”
observing
that
such
allegations, “if true, would establish that his doctors actually
knew of and disregarded an objectively serious condition, medical
6
need, or risk of harm.”
Jehovah v. Clarke, 798 F.3d 169, 181-82
(4th Cir. 2015) (internal brackets and quotation marks omitted)).
Here (as detailed in the Introduction), the Complaint (when
viewed in the light most favorable to Plaintiff with the benefit of
all reasonable inferences) alleges that:
1) Plaintiff’s leg injury qualified as a serious medical need,
i.e., one “diagnosed by a physician as mandating treatment,” Iko,
535 F.3d at 241 (internal quotation marks omitted);
2) as a result of Plaintiff’s reports of leg pain, Defendant
Grewal reviewed an MRI that (according to another doctor) revealed
Plaintiff’s obvious, treatment-requiring leg injury, such that
Defendant Grewal must have “kn[own] of a substantial risk [to
Plaintiff] from the very fact that the risk was obvious,” Scinto,
841 F.3d at 226 (internal quotation marks omitted); and
3)
Defendant
Grewal
nonetheless
“fail[ed]
to
respond
to
[Plaintiff’s] known medical needs [thus] rais[ing] an inference of
deliberate indifference to those needs,” id. (internal brackets and
quotation marks omitted).
In
sum,
the
Complaint’s
allegations
plausibly
support
a
deliberate indifference claim, because they would permit a finding
that Defendant Grewal “ignored [Plaintiff’s symptoms], disregarded
abnormal test results, and failed to treat any of [his] symptoms,”
Jehovah, 798 F.3d at 181.
The Court therefore should deny the
7
instant Motion’s request for dismissal of Plaintiff’s Section 1983
claim for deliberate indifference against Defendant Grewal.
As a final matter, Defendant Grewal has argued that “Plaintiff
has attempted to assert a claim for medical malpractice” (Docket
Entry 22 at 13), but that his Complaint “lacks the mandatory
certification required by Rule 9(j)” (id.).
That rule provision
mandates that any complaint alleging medical malpractice under
North Carolina law either (i) must contain a certification that a
person who qualifies as an expert witness under North Carolina Rule
of Evidence 702 has reviewed all reasonably available “medical
records pertaining to the alleged negligence” and will “testify
that the medical care did not comply with the applicable standard
of care” or (ii) must “allege[] facts establishing negligence under
the existing common-law doctrine of res ipsa loquitur.”
N.C. R.
Civ. P. 9(j)(1)-(3); see also Littlepaige v. United States, 528 F.
App’x 289, 292-93 (4th Cir. 2013) (deeming Rule 9(j) to impose
substantive requirement of North Carolina law); Graves v. Andrews,
No. 1:12CV154, 2013 WL 1010473, at *8 (M.D.N.C. Mar. 14, 2013)
(unpublished) (Beaty, J.) (“‘Failure to comply with Rule 9(j) is
ground for dismissal of a state law medical malpractice claim filed
in federal court.’” (quoting Davis v. Jones, No. 5:12CV143RJC, 2012
WL 4959497, at *4 (W.D.N.C. Oct. 16, 2012) (unpublished))), aff’d,
539 F. App’x 157 (4th Cir. 2013).
Some question exists as to
whether Plaintiff intended the Complaint to include a medical
8
malpractice claim (compare Docket Entry 2 at 1 (indicating that
Plaintiff “recently filed” a “[s]tate tort claim in Scotland
County” against “Medical Staff” of the North Carolina Department of
Public Safety “with the same facts involved in this action or
otherwise relating to [his] imprisonment”), with Docket Entry 27 at
4-5 (arguing, in response to instant Motion, that “Defendant Grewal
owed
[P]laintiff
[]
a
duty
of
adequate
medical
care,”
that
“Defendant Grewal breached that duty by failing to use his ordinary
skill and knowledge,” and that “[t]he breach of duty proximately
caused [Plaintiff] damages”)); however, to the extent Plaintiff’s
Complaint does purport to state a claim against Defendant Grewal
for medical malpractice, that claim fails due to the absence of a
certification compliant with Rule 9(j) or factual allegations
sufficient to invoke the res ipsa loquitur doctrine.
Beginning with the latter matter, “the doctrine of res ipsa
loquitur . . . permits a fact finder ‘to infer negligence from the
mere occurrence of the accident itself’ based on common knowledge
or experience.”
Wright v. United States, 280 F. Supp. 2d 472, 481
(M.D.N.C. 2003) (Osteen, Sr., J.) (quoting Diehl v. Koffer, 140
N.C. App. 375, 378, 536 S.E.2d 359, 362 (2000)).
The doctrine
“‘addresse[s ] those situations where the facts or circumstances
accompanying an injury by their very nature raise a presumption of
negligence on the part of the defendant.’”
Wood v. United States,
209 F. Supp. 3d 835, 845 (M.D.N.C. July 21, 2016) (Schroeder, J.)
9
(internal brackets omitted) (quoting Robinson v. Duke Univ. Health
Sys., 229 N.C. App. 215, 224, 747 S.E.2d 321, 329 (2013)).
Given
the complexity of most medical treatment, see Wright, 280 F. Supp.
2d at 481, res ipsa loquitur “rarely applies in medical malpractice
actions,” Wood, 209 F. Supp. 3d at 845.
Instead, it extends only
to “medical malpractice actions in which the ‘common knowledge,
experience and sense of laymen qualifies them to conclude that some
medical injuries are not likely to occur if proper care and skill
is used.’”
Wright, 280 F. Supp. 2d at 482 (quoting Grigg v.
Lester, 102 N.C. App. 332, 335, 401 S.E.2d 657, 659 (1991)).
Examples of such “gross negligence” include “surgical instruments
left in the patient’s body, and injuries obviously remote from the
site of a surgery.”
Id. at 481 (internal citations omitted).
Here, the Complaint alleges that Defendant Grewal failed to
properly treat a leg injury revealed by an MRI.
2 at 3-4.)
(See Docket Entry
A layperson’s frame of reference does not provide an
adequate basis for assessing such a claim. See, e.g., Stevenson v.
North Carolina Dep’t of Corr., 210 N.C. App. 473, 477, 714 S.E.2d
435, 437 (2011) (“[The p]laintiff’s allegation that [a medical
professional’s]
examination
was
inadequate
because
it
only
consisted of what [the] plaintiff characterized as a ‘cursory’
glance at the infected area is not the type of negligence that a
jury could infer through common knowledge and experience.
Expert
testimony would be required in order to determine whether [the]
10
examination was sufficient under the applicable standard of care,
and as a result, [the] plaintiff’s claim also failed to establish
negligence under the doctrine of res ipsa loquitur.”).
Res ipsa
loquitur therefore does not apply to any medical malpractice claim
asserted against Defendant Grewal in the Complaint and any such
claim thus requires Rule 9(j) certification.
Plaintiff neither
produced nor suggested he could produce the required certification.
(See Docket Entries 2, 27.)
Accordingly, the Court should dismiss
any medical malpractice claim against Defendant Grewal in the
Complaint.
See, e.g., Graves, 2013 WL 1010473, at *8 (dismissing
medical malpractice claim for Rule 9(j) non-compliance).
Conclusion
The Complaint states a claim against Defendant Grewal under
Section 1983 for deliberate indifference to a serious medical need,
but any claim by Plaintiff against Defendant Grewal under North
Carolina law for medical malpractice fails as a matter of law.
IT IS THEREFORE RECOMMENDED that the Motion to Dismiss of
Defendant Grewal (Docket Entry 21) be granted in part and denied in
part, in that the Court should permit Plaintiff’s Section 1983
deliberate
indifference
claim
(but
not
any
state-law
medical
malpractice claim) to proceed against Defendant Grewal.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
April 12, 2019
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