Parson v. Terrell et al

Filing 6

ORDER DISMISSING CASE for failure to state a claim upon which relief may be granted 28 USC 1915A(b)(1); dismissing as moot motion for in forma pauperis status. Signed by Chief Judge Robert J. Conrad, Jr on 3/22/13. (Pro se litigant served by US Mail.)(bsw)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
1:13-cv-48-RJC
ROBERT J. PARSON, III,

)
)
Plaintiff,
)
)
v.
)
)
DWAYNE TERRELL,
)
Superintendent, Marion
)
Corr. Inst.; L. HAYWORD,
)
Nurse, Marion Corr. Inst.;
)
FNU CARSWELL, Mental
)
Health, Marion Corr. Inst.,
)
)
Defendants.
)
_________________________________)

ORDER

THIS MATTER is before the Court on an initial review of Plaintiff’s complaint filed
pursuant to 42 U.S.C. § 1983. For the reasons that follow, Plaintiff’s complaint will be
dismissed.
I.

BACKGROUND
Plaintiff is an inmate convicted of being a habitual felon and is housed in the Marion

Correctional Institution with a projected release date of June 3, 2016. According to his
complaint, on April 13, 2011, Plaintiff and another inmate, Greg Lee, were playing basketball
when Plaintiff accidentally scratched Lee’s arm. Lee reported for medical attention and was
examined by Defendant Haywood. Plaintiff alleges that Lee overheard Haywood on the phone
speaking with Officer Limison. During the conversation, Plaintiff states that Lee heard Haywood
tell Limison that Plaintiff was HIV positive. In reaction to this alleged revelation, Plaintiff
contends that Lee “became irate with frustration.” (Doc. No. 1 at 4). Plaintiff alleges that he was
1

then called in for medical observation by Sergeant Perry. Plaintiff apparently ran into Lee and
Plaintiff informed Lee that he was not, in fact, HIV positive. Id. Plaintiff claims that Haywood’s
alleged statement that he had HIV was “totally unethical and brought a state created burden on”
him. Plaintiff remarks, “even if I did have HIV; Nurse Haywood should have not [broken]
confidentiality in a medical situation that warrants privacy.” Id..
Plaintiff contends that his rights as protected by the Eighth and Fourteenth Amendments
have been violated. Plaintiff states that he has endured considerable pain and suffering because
of Haywood’s disclosure, and he seeks $250,000 “for nominal, compensatory and punitive
damages.” Id. at 4-5.1
II.

STANDARD OF REVIEW
Under 28 U.S.C. § 1915(A)(a), “the court shall review . . . a complaint in a civil action in

which a prisoner seeks redress from a governmental entity or officer or employee of a
governmental entity.” Following this review, the “court shall identify cognizable claims or
dismiss the complaint, or any portion of the complaint, if the complaint is frivolous, malicious,
or fails to state a claim upon which relief may be granted.” Id. § 1915A(b)(1). Upon review, this
Court must determine whether the Complaint raises an indisputably meritless legal theory or is
founded upon clearly baseless factual contentions, such as fantastic or delusional scenarios.
Neitzke v. Williams, 490 U.S. 319, 327-28 (1989).
A pro se complaint must be construed liberally. Haines v. Kerner, 404 U.S. 519, 520
(1972). However, the liberal construction requirement will not permit a district court to ignore a
1

Plaintiff attached a grievance regarding Haywood’s statement to his complaint. Based on the
response to his grievance by prison officials, it appears that Plaintiff has exhausted his
administrative remedies. See 42 U.S.C. § 1997e(a).
2

clear failure to allege facts in his Complaint which set forth a claim that is cognizable under
federal law. Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990). Further, the Court
is “not bound to accept as true a legal conclusion couched as a factual allegation.” Papasan v.
Allain, 478 U.S. 265, 286 (1986).
III.

DISCUSSION
Accepting allegations in Plaintiff’s complaint as true, it appears that he has, and

continues to suffer emotional harm resulting from Haywood’s false disclosure of his status as
being HIV positive. Plaintiff denies being HIV. Nonetheless, he asserts that his fellow inmates
talk about his alleged disease and avoid him. (Doc. No. 1 at 11-17). Other than emotional
distress, Plaintiff alleges no other fall out from Haywood’s remark other than the outbreak of a
fight which Plaintiff asserts ensued after a fellow inmate apparently stated that Plaintiff was HIV
positive. (Id. at 18).
The Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(e), provides that “[n]o
Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional
facility, for mental or emotional injury suffered while in custody without a prior showing of
physical injury.” Id. § 1997e(e); see Etters v. Bennett, No. 5:09-CT-3187-D, 2011 WL 976472,
at *6 (E.D.N.C. Mar. 16, 2011) (finding that although the Fourth Circuit has not considered this
issue, other circuits have addressed the issue in published opinions and concluded that §
1997e(e) applies to Section 1983 claims by prisoners asserting constitutional violations, and thus
the complaint requires allegations of physical injury) (citing Royal v. Kautzky, 375 F.3d 720,
723 (8th Cir. 2004) (“We join the majority, concluding Congress did not intend section 1997e(e)
to limit recovery only to select group of federal actions brought by prisoners. Instead, we read

3

section 1997e(e) as limiting recovery for mental or emotional injury in all federal actions brought
by prisoners.”); Searles v. Van Bebber, 251 F.3d 869, 876 (10th Cir. 2001) (finding that the plain
language of Section 1997e(e) prohibits a federal action absent a showing of physical injury). But
see Canell v Lightner, 143 F.3d 1210, 1213 (9th Cir. 1998) (finding that Section 1997e(e) does
not apply to a claim alleging pure violation of First Amendment rights); Rowe v. Shake, 196
F.3d 778, 781-82 (7th Cir. 1999) (finding a “deprivation of First Amendment rights standing
alone is a cognizable injury”) (internal citation omitted).
Petitioner has alleged that his Eighth and Fourteenth Amendment rights were violated by
Haywood’s purported erroneous disclosure that he was HIV positive. 2 The Fourteenth
Amendment applies to prison conditions of pretrial detainees, while the Eighth Amendment
applies to those serving a term of imprisonment. See Bell v. Wolfish, 441 U.S. 520, 535 n.16
(1979) (“A sentenced inmate . . . may be punished although that punishment may not be ‘cruel
and unusual’ under the Eighth Amendment.”) (internal citations omitted). Petitioner is not a
pretrial detainee and has not, therefore, set forth a claim under the Fourteenth Amendment.
“A prison official’s ‘deliberate indifference’ to a substantial risk of harm to an inmate
violates the Eighth Amendment.” Farmer v. Brennan, 511 U.S. 825, 828 (1994) (internal
citations omitted). The only allegation of a physical nature is the outbreak of a fight after
Plaintiff confronted another inmate who stated that he was HIV positive. The physical
confrontation was initiated by Plaintiff. At best, Petitioner has stated a possible claim of
defamation, which is a state law claim, and therefore not properly considered in a suit brought
2

Petitioner never heard Haywood say anything about his alleged HIV status nor does Plaintiff
allege that he confronted her with the issue. Rather, Plaintiff heard Inmate Lee say that he
overheard Haywood disclose Plaintiff’s HIV status.
4

under Section 1983. See Maine v. Thibotout, 448 U.S. 1 (1980); see also Gonzaga University v.
Doe, 536 U.S. 273, 283 (2002) (holding that a right must be “unambiguously conferred” by a
federal statute to support a Section 1983 claim). It is, not, however, a federal Section 1983 claim
and it must be dismissed.
Plaintiff also appears to allege that Defendant Carswell, his mental health provider,
provided inadequate care because she “doesn’t understand me and isn’t helping me.” (Doc. No. 1
at 17). According to the referral forms attached to the complaint, Plaintiff was evaluated several
times by Defendant Carswell and she was unable to make progress that was satisfactory to
Plaintiff. A claim alleged under § 1983 based on a deliberate indifference to serious medical
needs falls within the Eighth Amendment's prohibition against cruel and unusual punishment.
Estelle v. Gamble, 429 U.S. 97, 104 (1976). As noted, in order to state a claim under the Eighth
Amendment, a plaintiff must show a “deliberate indifference to serious medical needs” of the
inmate. Id. “Deliberate indifference requires a showing that the defendants actually knew of and
disregarded a substantial risk of serious injury to the detainee or that they actually knew of and
ignored a detainee's serious need for medical care.” Young v. City of Mt. Ranier, 238 F.3d 567,
575-76 (4th Cir. 2001) (citations omitted). “To establish that a health care provider's actions
constitute deliberate indifference to a serious medical need, the treatment must be so grossly
incompetent, inadequate, or excessive as to shock the conscience or to be intolerable to
fundamental fairness.” Miltier v. Beorn, 896 F.2d 848, 851 (4th Cir. 1990).
Allegations that might be sufficient to support negligence and medical malpractice claims
do not, without more, rise to the level of a cognizable § 1983 claim. Estelle, 429 U.S. at 106;
Grayson v. Peed, 195 F.3d 692, 695 (4th Cir. 1999) (“Deliberate indifference is a very high

5

standard—a showing of mere negligence will not meet it.”). To be found liable under the Eighth
Amendment, a prison official must know of and consciously or intentionally disregard “an
excessive risk to inmate health or safety.” Farmer v. Brennan, 511 U.S. 825, 837 (1994); Johnson
v. Quinones, 145 F.3d 164, 167 (4th Cir. 1998). “[E]ven if a prison doctor is mistaken or
negligent in his diagnosis or treatment, no constitutional issue is raised absent evidence of abuse,
intentional mistreatment, or denial of medical attention.” Stokes v. Hurdle, 393 F. Supp. 757,
762 (D. Md.1975), aff'd, 535 F.2d 1250 (4th Cir. 1976). The constitutional right is to medical
care. A claim based solely on a difference of opinion as to the quality of such care is not
sufficient to raise a constitutional claim. Id. Therefore, a disagreement “between an inmate and a
physician over the inmate's proper medical care [does] not state a § 1983 claim unless
exceptional circumstances are alleged.” Wright v. Collins, 766 F.2d 841, 849 (4th Cir. 1985)
(dismissing the plaintiff's § 1983 claim against a defendant physician for allegedly discharging
the plaintiff too early from a medical clinic, as such claim did not rise to the level of deliberate
indifference but would, “at most, constitute a claim of medical malpractice”). Plaintiff has failed
to demonstrate anything other than he was not progressing to his satisfaction while under the
care of Defendant Carswell and this fails to support a claim of deliberate indifference.
For the reasons set forth herein, the Court finds that Petitioner has failed to state a
cognizable claim for relief because he has not alleged physical injury and he has failed to state a
claim under the Eighth Amendment. The Court is not prepared to find that an alleged, lone
comment, made in the presence of another inmate and not the Plaintiff, can engender such
emotional distress as to give rise to a physical injury actionable under Section 1983.

6

IV.

CONCLUSION
IT IS, THEREFORE, ORDERED that:
1.

Plaintiff’s Complaint, (Doc. No. 1), is DISMISSED for failure to state a claim
upon which relief may be granted. 28 U.S.C. § 1915A(b)(1).

2.

Plaintiff’s Motion to Proceed in forma pauperis, (Doc. No. 2), is DISMISSED as
moot.
Signed: March 22, 2013

7