Todd v. White et al

Filing 16

ORDER denying 12 Motion for Preliminary Injunction and Motion for TRO; denying 15 Motion to Appoint Counsel. See Order for further details. Signed by Chief Judge Frank D. Whitney on 1/30/2017. (Pro se litigant served by US Mail.)(kby)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
1:16-cv-77-FDW
LEVON TODD,

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Plaintiff,
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vs.
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SUSAN WHITE, et al.,
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Defendants.
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____________________________________)

ORDER

THIS MATTER is before the Court on initial review of Plaintiff’s Amended Complaint
pursuant to 28 U.S.C. § 1915(e) and § 1915A, (Doc. No. 13), on Plaintiff’s Motion for
Preliminary Injunction, Motion for Temporary Restraining Order, (Doc. No. 12), and on
Plaintiff’s Motion to Appoint Counsel, (Doc. No. 15). On April 4, 2016, the Court entered an
order waiving the initial filing fee and directing monthly payments to be made from Plaintiff’s
prison account. (Doc. No. 6). Thus, Plaintiff is proceeding in forma pauperis.
I.

BACKGROUND

Pro se Plaintiff Levon Todd is an inmate of the State of North Carolina, currently
incarcerated at Mountain View Correctional Institution in Spruce Pine, North Carolina. Plaintiff
filed his Amended Complaint on September 9, 2016, pursuant to 42 U.S.C. § 1983, naming the
following persons as Defendants: Susan White, identified as the Superintendent of Mountain
View at all relevant times; Mike Slagle, Assistant Superintendent of Mountain View at all
relevant times; Defendants FNU Grant, FNU Frank, FNU Wiseman, FNU Benefield, FNU
Holiman, and FNU Huggins, all identified as correctional officers at Mountain View at all
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relevant times; Norma Melton, identified as the head nurse at Mountain View at all relevant
times; and unnamed correctional officers at Mountain View who held the position of
transportation/correctional officers at all relevant times. (Doc. No. 1 at 2-3). Plaintiff purports
to bring numerous claims against Defendants, and he has sued them in both their individual and
official capacities. Specifically, Plaintiff alleges the following:
Plaintiff is an insulin dependent type-2 diabetic. November 2013, Plaintiff
was American Disabilities Act (ADA) approved while housed at Mountain View
Correctional. . . . Starting a year prior and leading to the filing of the complaint.
The Plaintiff has been in contention with the administration and specifically
Defendant White concerning the Plaintiff’s efforts to practice his Islamic faith at
Mountain View Correctional. Defendant White went so far as to state to the
Plaintiff “Be sure this is the road you want to go down. Because if that is your
choice I promise you as long as I’m superintendent of this institution it will be a
hard and bumpy road.”
Not long following the independent incident with Defendant White, the
Plaintiff started being denied his right to eat following his insulin incident where
he received insulin before every meal. Defendants Grant, Frank, Holiman,
Benefield, and Wiseman limited the Plaintiff’s time to eat to one minute or denied
him the chance to eat at all. This took place over two dozen times. The Plaintiff
has heard himself called a “terrorist” and a “Muslim” numerous times by the
Defendants as he was leaving the dining hall without eating.
On one occasion, after the Plaintiff was refused the opportunity to eat the
Plaintiff approached Defendant Captain Huggins, explaining to him that he had
just taken his insulin and there was a medical need for him to eat. Defendant
Huggins replied, “I think you been here long enough to know we did not explain
anything to you kind. You have two choices keep moving or say one more word
and go to segregation. But regardless of what choice you decide you are not
going to eat.”
On March 25, 2014, and March 26, 2014, while taking his daily insulin
shot, Plaintiff complained to Defendant Melton specifically about excruciating
headaches, blurred vision, loss of balance, numbness, and tingling of limbs. The
Plaintiff’s complaints were to no avail.
On March 27, 2014, Plaintiff’s complaining was witnessed by then officer
in charge Captain Whittington suggested calling (EMS) an ambulance.
Defendant Melton contacted Defendant Slagle who arranged contrary to
Capt. Whittington suggestion for the Plaintiff to be transported by institutional
transportation officers.
The Plaintiff was placed in full restraints by Defendant Smith. The
handcuffs were so tight they cut into the Plaintiff’s wrist resulting in swelling and
discoloration in the Plaintiff’s hands.
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The Plaintiff repeatedly pleaded with Defendant Smith to loosen the cuffs.
Defendant Smith refused to comply. Upon Sgt. Rebecca Dale seeing the
condition of the Plaintiff’s wrist and hands immediately adjusted them herself.
The Plaintiff was transported to Spruce Pines Hospital. The hospital then
immediately determined the Plaintiff was suffering from a massive stroke.
The Plaintiff was placed in an ambulance and transported to Grace
Hospital in Morganton, North Carolina, where he stayed for four days.
Upon leaving Grace Hospital, Defendants unknown correctional officers
fully restrained Plaintiff who had little or no use of his limbs at said times. And
instead of using a wheelchair to transport the Plaintiff, the Defendant drag
Plaintiff from transport vehicle to Central Prison and also from Grace Hospital to
the transportation vehicle.
Plaintiff stayed at Central Prison for three months in the hospital unit and
was then transferred back to Mountain View Correctional.
The Plaintiff was then transferred to Alexander Correctional for physical
therapy where he stayed for give months. During his stay there the Plaintiff
suffered serious complications due to stroke and diabetes combined.
Upon returning to Mountain View Correctional the Plaintiff was now in a
wheelchair, speech impaired, and sight impaired
The Plaintiff saw the provider Mr. Urban who informed the Plaintiff he
was a doctor but not a stroke doctor and the Plaintiff would need to be transferred
to see a specialist. Defendant Melton became irate stating “there is nothing else
that can be done for him. We will not be now or later transferring him.”
A week later the Plaintiff was assigned a health assistant. The denial of
the Plaintiff’s right to eat not only continued but increased in fervor.
One of the main prerequisites for the maintenance of and the upkeep of the
Plaintiff health is therapeutic recreation. Therapeutic recreation is not offered at
Mountain View Correctional.
The Plaintiff wrote a grievance on this issue and was informed that
Mountain View Correctional is not a medical facility.
The Plaintiff has not seen a stroke specialist, a speech therapist nor has he
been transferred to a medical facility.
(Id. at 4-8).
Plaintiff contends that his “problems did not manifest until after the Plaintiff’s altercation
with Defendant White over Islamic practice at Mountain View Correctional.” (Id. at 10).
Plaintiff further alleges that “[t]he preventing the Plaintiff from eating, retaliation for exercising
the right to practice religion, the excessively tight hand restraints, etc. violated Plaintiff Levon
Todd’s rights and constituted cruel and unusual punishment, right to equal treatment, a due
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process violation under the Fourteenth and Eighth Amendments to the United States
Constitution.” (Id.). Plaintiff also alleges that “the denial of the opportunity to eat numerous
times violated Plaintiff Levon Todd’s rights and constituted cruel and unusual punishment under
the Eighth Amendment to the United States Constitution.” (Id. at 11).
As to Defendant Smith, Plaintiff alleges that “Defendant Smith placing the Plaintiff in
restraints pursuant to his transfer served a penological need. When his efforts of placing the
handcuffs so tightly to the Plaintiff’s wrist became obvious and he did nothing his actions
became cruel and unusual punishment. The placing of handcuffs on the Plaintiff so tight to
cause lacerations in addition to swelling and discoloration” violated Plaintiff’s Eighth
Amendment rights. (Id. at 12). Plaintiff also alleges that the conduct of unnamed correctional
officers in “dragging” Plaintiff as he was leaving Grace Hospital constituted cruel and unusual
punishment in violation of the Eighth Amendment. As for his deliberate indifference claim,
Plaintiff alleges that “the repeat notification of stroke like symptoms without proper medical
treatment and the provider’s order for treatment of stroke denied by nurse” violated Plaintiff’s
Eighth Amendment rights. (Id. at 13-14). Plaintiff further alleges that “therapeutic recreation
was not only not offered but the Plaintiff was informed the institution where he was housed was
not a medical camp” and that the prison’s denial of his right to “decent conditions” in the prison
also violated his Eighth Amendment rights. (Id. at 14). Plaintiff seeks compensatory damages,
punitive damages, and declaratory and injunctive relief. (Id. at 14-15).
II.

STANDARD OF REVIEW

Because Plaintiff is proceeding in forma pauperis, the Court must review the Complaint
to determine whether it is subject to dismissal on the grounds that it is “frivolous or malicious
[or] fails to state a claim on which relief may be granted.” 28 U.S.C. § 1915(e)(2). Furthermore,
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§ 1915A requires an initial review of a “complaint in a civil action in which a prisoner seeks
redress from a governmental entity or officer or employee of a governmental entity,” and the
court must 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; or seeks monetary relief from a defendant who is immune from such relief. In its
frivolity 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).
III.

DISCUSSION

The Court finds that this action survives initial review under Section 1915 in that
Plaintiff’s claims are not clearly frivolous.
Next, in support of the motion to appoint counsel, Plaintiff states, among other things,
that he is physically disabled, he is incarcerated, he has limited knowledge of the law and no
access to a law library, and that the issues involved in this case are complex. There is no
absolute right to the appointment of counsel in civil actions such as this one. Therefore, a
plaintiff must present “exceptional circumstances” in order to require the Court to seek the
assistance of a private attorney for a plaintiff who is unable to afford counsel. Miller v.
Simmons, 814 F.2d 962, 966 (4th Cir. 1987). Notwithstanding Plaintiff’s contentions to the
contrary, this case does not present exceptional circumstances that justify appointment of
counsel. Therefore, Plaintiff’s motion to appoint counsel will be denied.
The Court next addresses Plaintiff’s Motion for Preliminary Injunction, Motion for
Temporary Restraining Order. In the motion, Plaintiff seeks a show cause order from this Court,
ordering Defendants to show cause “why a preliminary injunction should not issue . . . enjoining
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the defendants, their successors in office, agents and employees and all other persons acting in
concert and participating with them, from the destruction of any video, relevant records or other
exculpatory evidence, associated with this civil action . . . .” (Doc. No. 12 at 1). Plaintiff’s
motion will be denied. Plaintiff seeks an order from this Court requiring Defendants to preserve
any evidence relevant to Plaintiff’s claims, including “video” and “relevant records or other
exculpatory evidence.” The Court finds that an order requiring Defendants not to destroy
evidence is unnecessary because Defendants already have a duty to preserve
evidence. Under the doctrine of spoliation, parties have a duty to preserve (including a duty to
not destroy) evidence when litigation is filed or becomes reasonably anticipated. See Silvestri v.
Gen. Motors Corp., 271 F.3d 583, 591 (4th Cir. 2001); Goodman v. Praxair Servs., Inc., 632 F.
Supp. 2d 494, 509 (D. Md. 2009). To fulfill the duty to preserve relevant evidence, “[o]nce a
party reasonably anticipates litigation, it is obligated to suspend its routine document
retention/destruction policy and implement a “litigation hold” to ensure the preservation of
relevant documents.” Id. at 511. Here, if Defendants destroy any exculpatory evidence they will
be subject to sanctions. However, because they are already under a duty to preserve evidence, an
order from this Court is not necessary. Accord Wright v. Webber, C/A No. 1:11-2199-TLWSVH, 2011 WL 6112371, at *3 (D.S.C. Nov. 10, 2011) (“Plaintiff has not shown that he will
suffer irreparable damage if an injunction does not issue, as Defendants already have a legal duty
to preserve existing evidence when a lawsuit is filed.”); McNair v. Ozmint, C/A No. 3:07-3470HFF-JRM, 2008 WL 2128121, at *4 (D.S.C. May 20, 2008) (denying a motion for a temporary
restraining order to preserve cassette tapes because there already existed a duty to preserve
material evidence).
Finally, in an accompanying Declaration, but not in the motion itself, Plaintiff includes
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language in the form of a proposed Order from this Court stating that, pending a show cause
hearing, Defendants must “retrain[] from ongoing deliberate indifference towards Plaintiff’s
serious medical needs.” (Doc. No. 12-2 at 2). To the extent that Plaintiff seeks a separate order
from this Court ordering Defendants to restrain from “ongoing deliberate indifference,” he did
not include this in his motion, and it is therefore unclear whether this is part of the relief sought.
See (Doc. No. 12). In any event, at this time, Plaintiff has not shown that he is entitled to a
preliminary injunction or a temporary restraining order as to his deliberate indifference claim.
The factors to be weighed when determining whether such drastic relief as a preliminary
injunction is warranted are: (1) the likelihood of irreparable harm to plaintiff if the temporary
restraining order is denied; (2) the likelihood of harm to the defendant if the injunction is
granted; (3) the likelihood that plaintiff will succeed on the merits; and (4) the public interest in
granting the relief requested. Rum Creek Coal Sales, Inc. v. Caperton, 926 F.2d 353, 359 (4th
Cir.1991). Preliminary injunctive relief directed to running a state prison should be granted only
in compelling circumstances. Taylor v. Freeman, 34 F.3d 266, 269 (4th Cir. 1994). While
Plaintiff has expressed concern that Defendants are not treating him properly with regard to his
diabetes, he has not shown that he is immediate danger of irreparable harm. If the Court were to
intervene in the day-to-day operations of the prison based merely on Plaintiff’s assertions here, it
is likely that considerable harm to the ability of prison officials to run their facility would result.
Thus, the balance of hardships does not weigh in Plaintiff's favor, and his motion for a
preliminary injunction or temporary restraining order is denied at this time.
IV.

CONCLUSION

For the reasons stated herein, the Court finds that Plaintiff’s action survives initial
review.
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IT IS, THEREFORE, ORDERED that:
1.

Plaintiff’s Complaint survives initial review under 28 U.S.C. § 1915(e).

2.

Plaintiff’s Motion for Preliminary Injunction, Motion for Temporary Restraining
Order, (Doc. No. 12), and Plaintiff’s Motion to Appoint Counsel, (Doc. No. 15),
are DENIED.

3.

IT IS FURTHER ORDERED THAT, the Clerk is directed to mail a summons
form to Plaintiff for Plaintiff to fill out and return for service of process on
Defendants. Once the Court receives the summons forms, the Clerk shall then
direct the U.S. Marshal to effectuate service on Defendants.

Signed: January 30, 2017

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