Johnson v. NC Department of Public Safety/Division of Prisons

Filing 18

ORDER that: (1) Pltf's motion to certify a class that is incorporated in 8 Amended Complaint is DENIED; (2) Pltf's motion for preliminary injunction that is incorporated in 8 Amended Complaint is DENIED as moot; (3) Pltf's claims of deliberate indifference to a serious medical need, and violations of the ADA and RA survive initial review under 28 U.S.C. § 1915, and the Court will exercise supplemental jurisdiction over Pltf's North Carolina l aw claims; (4) claims that Pltf attempts to assert claims on behalf of others, claims against the North Carolina Department of Public Safety, and claims against John and Jane Doe Defts are dismissed; (5) FURTHER ORDERED THAT Clerk is directed to mail summons forms to Pltf to fill out and return for service of process on Defts James Duckworth, Bret Bullis, Chad Green, David W. Guice, Robert Urhen, Frank L. Perry, Keith Damico, FNU Penland, Paula Y. Smith, FNU Stroupe, FNU Remfro, Cindy Haynes, Ca rolyn Buchanan, James Vaughn, Sandra Pittman, Norma Melton, Mike Slagle, and Mike Ball. Once Court receives summons forms, Clerk shall then direct U.S. Marshal to effectuate service on Defts. Signed by Chief Judge Frank D. Whitney on 1/16/2018. (Pro se litigant served by US Mail.) (ejb)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
1:16-cv-267-FDW
WILEY DALLAS JOHNSON,

)
)
Plaintiff,
)
)
vs.
)
)
NORTH CAROLINA DEPARTMENT OF
)
PUBLIC SAFETY, et al.,
)
)
Defendants.
)
__________________________________________)

ORDER

THIS MATTER is before the Court on initial review of Plaintiff’s Amended Complaint,
(Doc. No. 8), and incorporated motions to certify a class and for preliminary injunction, the North
Carolina Department of Justice’s Response to an Order to show cause why preliminary injunctive
relief should not be granted, (Doc. No. 15), and Plaintiff’s Reply, (Doc. No. 17). Plaintiff is
proceeding in forma pauperis. See (Doc. No. 7).
I.

BACKGROUND

Pro se Plaintiff Wiley Johnson has filed a civil rights suit pursuant to 42 U.S.C. § 1983,
the Americans with Disabilities Act (“ADA”), Rehabilitation Act (“RA”) and the North Carolina
Constitution with regards to incidents that allegedly occurred at the Mountain View and Avery
Mitchell Correctional Institutions. He names the following as Defendants: North Carolina
Department of Public Safety (“DPS”) Division of Prisons, DPS Commissioner David W. Guice,
Dr. Robert Uhren, DPS Secretary Frank L. Perry, Education Assistant James Duckworth, Unit
Manager Bret Bullis, Assistant Unit Manager Chad Green, PA Keith D’Amico, Nurse Pendland,
Dr. Paula Y. Smith, Nurse Stroupe, Nurse Remfro, Classification Coordinator Cindy Haynes,
1

Program Director I Carolyn Buchanan, Program Supervisor of Education James Vaughn, Western
Regional Medical Director Sandra Pittman, Mountain View C.I. Lead RN Norma Melton,
Mountain View C.I. Administrator Mike Slagle, Avery Mitchell C.I. Administrator Mike Ball, and
John and Jane Doe A-Z.
In his 54-page Amended Complaint filed on December 29, 2016, (Doc. No. 8), Plaintiff
makes repetitive allegations on behalf of himself and unnamed class members for whom he seeks
class certification. The gist of his allegations is that DPS does not screen incoming inmates for
Hepatitis-C virus and, for inmates who have been diagnosed with Hepatitis-C, and refuses to
provide “breakthrough” 12-week oral pill treatment until infected inmates have experienced severe
and irreversible liver damage.
Guice, as Commissioner of DPS, is responsible for policy and procedure, administration,
and supervision of staff and employees within NC DPS during the relevant time.
Perry, as secretary of DPS, is responsible for oversight, operation, and administration of
DPS including providing appropriate medical treatment and formulating policy and procedure to
ensure the provision of treatment for Plaintiff and those similarly situated.
Smith, as DPS medical director, serves on the Utilization Review Board, and is responsible
for overseeing delivery of all medical services in division of prisons as well as the establishment
of medical policy and procedure that governs the med treatment of all inmates in the division of
prisons.
Regional Medical Director Pittman, Mountain View C.I. Lead Nurse Melton, Mountain
View C.I. Administrator Slagle, Avery Mitchell C.I. Lead Nurse Penland, are responsible for
supervising and monitoring the delivery of medical and dental care services to inmates, which
must be provided consistent with community standards.
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Uhren and D’Amico are the primary medical providers for PDS at Mountain View C.I. and
Avery Mitchell C.I., and both treated Plaintiff. Uhren and D’Amico have the obligation to provide
independent, individual, safe, effective medical care Plaintiff and each similarly situated class
member consistent with community standard of medical care. They were deliberately indifferent
to Plaintiff’s disability, disease, and serious medical needs regarding his Hepatitis-C infection in
compliance with current standards of individualized professional medical care.
John and Jane Does are doctors, nurses, case managers, correctional officers, supervisors,
“and any N.C. Dept of Public Safety/ Division of Prisons, employees, agents, or representatives
whose work place are Mountain View Correctional Institution, Avery Mitchell Correctional
Institution and any other prisons operated by the defendants charged with responding to requests
for medical care for HCV Infections from now-unknown inmates within the NC prison systems.”
(Doc. No. 8 at 14). They were deliberately indifferent by refusing to treat Plaintiff’s disability,
disease, and serious medical needs regarding Hepatitis-C infection in compliance with current
standards of individualized professional medical care.
DPS policy, and its employees’ enforcement of it, amounts to cruel and unusual
punishment, violates equal protection because Hepatitis-C is screened and treated differently from
HIV, and violates the North Carolina Constitution. Further, the policy violates the ADA and RA
because Hepatitis-C infected inmates are excluded from DPS programs that could result in gain
time.
Plaintiff seeks declaratory judgment, injunctive relief, compensatory and punitive
damages, and such other relief to which he is entitled. He also seeks preliminary injunctive relief
for immediate treatment with the 12-week oral pill. See also (Doc. Nos. 9, 12) (letter and unverified
“affidavit”).
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Due to the allegedly serious nature of Plaintiff’s severe and worsening medical condition,
the Court ordered DPS to show cause why preliminary injunctive relief should not be granted.
(Doc. No. 14). DPS filed a Response arguing that preliminary injunctive relief is moot. (Doc. No.
15). According to an affidavit by Defendant Smith, Plaintiff began the 12-week oral Hepatitis-C
treatment on August 22, 2016. (Doc. No. 15-1). Blood tests drawn on November 30, 2016, and
March 1, 2017, demonstrate that he has been cured of the Hepatitis-C virus. (Id.).
Plaintiff filed a sworn statement in reply admitting that DPS had provided the medication,
but arguing that it only did so after he filed a tort claim in North Carolina court in September,
2013. (Doc. No. 17). He explains that the lack of proactive treatment to prevent total liver failure
and death prior to the completion of his sentence is the “ultimate cause” of him filing this suit.
(Doc. No. 17 at 2).
II.

MANDATORY PRELIMINARY INJUNCTION

“A preliminary injunction is an extraordinary remedy never awarded as of right.” Winter
v. Natural Res. Def. Council, Inc., 555 U.S. 7, 24 (2008) (citing Munaf v. Geren, 553 U.S. 674,
689-90 (2008)). A preliminary injunction is a remedy that is “granted only sparingly and in limited
circumstances.” MicroStrategy, Inc. v. Motorola, Inc., 245 F.3d 335, 339 (4th Cir. 2001) (quoting
Direx Israel, Ltd. v. Breakthrough Med. Corp., 952 F.2d 802, 816 (4th Cir. 1991)).
To obtain a preliminary injunction, a movant must demonstrate: (1) that he is likely to
succeed on the merits; (2) that he is likely to suffer irreparable harm in the absence of preliminary
relief; (3) that the balance of equities tips in his favor; and (4) that an injunction is in the public
interest. DiBiase v. SPX Corp., 872 F.3d 224, 230 (4th Cir. 2017) (quoting Winter, 555 U.S. at 20).
The typical preliminary injunction is prohibitory and generally seeks only to maintain the
status quo pending a trial on the merits. See Pashby v. Delia, 709 F.3d 307, 319 (4th Cir. 2013). By
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contrast, a mandatory injunction “goes well beyond simply maintaining the status quo pendent lite,
is particularly disfavored, and should not be issued unless the facts and law clearly favor the
moving party.” Taylor v. Freeman, 34 F.3d 266, 270 n. 2 (4th Cir. 1994) (quoting Martinez v.
Matthews, 544 F.2d 1233, 1243 (5th Cir. 1976)). A mandatory injunction is warranted in only the
most extraordinary circumstances. Id. (citing Wetzel v. Edwards, 635 F.2d 283, 286 (4th Cir.
1980)). Further, it is well established that “absent the most extraordinary circumstances, federal
courts are not to immerse themselves in the management of state prisons or substitute their
judgment for that of the trained penological authorities charged with the administration of such
facilities.” Taylor, 34 F.3d at 268; see Rogers v. Scurr, 676 F.2d 1211, 1214 (8th Cir. 1982)
(“judicial restraint is especially called for in dealing with the complex and intractable problems of
prison administration.”).
Plaintiff seeks emergency treatment for his Hepatitis-C infection. However, DPS has
demonstrated, and Plaintiff now admits, that he received the “breakthrough” drug treatment he
sought and has been cured of Hepatitis-C. Therefore, Plaintiff’s motion for preliminary injunction
is denied as moot. See, e.g., Neely v. Ortiz, 241 Fed. Appx. 474 (10th Cir. 2007) (inmate’s request
for injunctive relief was moot where the prison provided the medical treatment plaintiff sought
before the court ruled on his request).
III.

CLASS CERTIFICATION

As a general matter, class actions are appropriate in § 1983 litigation. Kirby v. Blackledge,
530 F.2d 583, 588 (4th Cir. 1976). To be certified as a class action, precisely defined class exist
and the proposed class representatives be members of the putative class. Fed. R. Civ. P. 23(a); see
East Texas Motor Freight Sys., Inc. v. Rodriguez, 431 U.S. 395, 403 (1977) (“a class representative
must be a part of the class”). In addition, the four prerequisites expressly set out in Rule 23(a) must
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be satisfied. That is: (1) the class is so numerous that joinder of all members is impracticable (the
“numerosity requirement”); (2) there are questions of law or fact common to the class (the
“commonality requirement”); (3) the claims or defenses of the representative parties are typical of
the claims or defenses of the class (the “typicality requirement”); and (4) the representative parties
will fairly and adequately protect the interests of the class (the “adequacy-of-representation
requirement”). Fed. R. Civ. P. 23(a).
Once the prerequisites under Rule 23(a) are met, the action must next satisfy one of the
three alternative sets found within Rule 23(b):
(1) prosecuting separate actions by or against individual class members that
would create a risk of:
(A) inconsistent or varying adjudications with respect to individual class
members that would establish incompatible standards of conduct for the party
opposing the class; or
(B) adjudications with respect to individual class members that, as a
practical matter, would be dispositive of the interests of the other members not
parties to the individual adjudications or would substantially impair or impede their
ability to protect their interests;
(2) the party opposing the class has acted or refused to act on grounds that
apply generally to the class, so that final injunctive relief or corresponding
declaratory relief is appropriate respecting the class as a whole; or
(3) the court finds that the questions of law or fact common to class
members predominate over any questions affecting only individual members, and
that a class action is superior to other available methods for fairly and efficiently
adjudicating the controversy....

Fed. R. Civ. P. 23(b).
However, the Fourth Circuit does not certify a class where a pro se litigant will act as the
representative of that class. Oxendine v. Williams, 509 F.2d 1405, 1407 (4th Cir. 1975). It is plain
error for a pro se inmate to represent other inmates in a class action. Id.
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Plaintiff is a pro se prisoner, fails to precisely define the class on whose behalf he wishes
to proceed, and has failed to demonstrate he will adequately protect the class’ rights.1 He cannot
satisfy Rule 23(b) and is precluded by Fourth Circuit law from litigating an action on behalf of a
class. Therefore, his request for class certification is denied.
IV.

SCREENING STANDARD OF REVIEW

Because Plaintiff is a prisoner proceeding in forma pauperis, the Court must review the
Complaint to determine whether it is subject to dismissal on the grounds that it is “(i) frivolous or
malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief
against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). In its frivolity
review, a 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 complaint should not be dismissed for failure
to state a claim “unless ‘after accepting all well-pleaded allegations in the plaintiff's complaint as
true and drawing all reasonable factual inferences from those facts in the plaintiff’s favor, it
appears certain that the plaintiff cannot prove any set of facts in support of his claim entitling him
to relief.’” Veney v. Wyche, 293 F.3d 726, 730 (4th Cir. 2002) (quoting Edwards v. City of
Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999)).
A pro se complaint must be construed liberally. Haines v. Kerner, 404 U.S. 519, 520
(1972); see also Smith v. Smith, 589 F.3d 736, 738 (4th Cir. 2009) (“Liberal construction of the
pleadings is particularly appropriate where … there is a pro se complaint raising civil rights
issues.”). However, the liberal construction requirement will not permit a district court to ignore

1

The Court previously concluded that Plaintiff failed to demonstrate the existence of circumstances that
would warrant the appointment of counsel. See (Doc. No. 13).

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a 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 (4th Cir. 1990). A pro se complaint must
still contain sufficient facts “to raise a right to relief above the speculative level” and “state a claim
to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007);
see Ashcroft v. Iqbal, 556 U.S. 662 (2009) (the Twombly plausibility standard applies to all federal
civil complaints including those filed under § 1983). This “plausibility standard requires a plaintiff
to demonstrate more than a sheer possibility that a defendant has acted unlawfully.” Francis v.
Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (internal quotation marks omitted). He must
articulate facts that, when accepted as true, demonstrate he has stated a claim entitling him to relief.
Id.
IV.
(1)

DISCUSSION

Claims on Behalf of Others
Plaintiff’s motion to certify a class has been denied as discussed in Section III, supra. See

Oxendine v. Williams, 509 F.2d 1405, 1407 (4th Cir. 1975) (the Fourth Circuit does not certify a
class where a pro se litigant will act as the representative of that class); see also Hafner v. Office
of Thrift Supervision, 977 F.2d 572 (4th Cir. 1992) (holding that, because plaintiff is pro se and is
not an attorney, although he filed pleadings purporting to represent a group, he is “barred from
representing anyone other than himself.”)(unpublished).
Moreover, Plaintiff does not have standing to assert claims on behalf of others. For
instance, Plaintiff argues that DPS should institute a screening policy for Hepatitis-C, and that
DPS’s failure to screen and provide breakthrough drug treatment to cure inmates presents a danger
of reinfection to uninfected inmates as well as to the general public upon their release. Plaintiff
has failed to allege a “concrete and particularized” injury with regards to the foregoing and,
8

therefore, lacks standing to assert these claims. See Petrella v. Brownback, 697 F.3d 1285, 1293
(10th Cir. 2012) (quoting Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009)).
Therefore, to the extent the Amended Complaint asserts claims on behalf of individuals
other than Plaintiff, they are dismissed.
(2)

North Carolina Division of Public Safety
The Eleventh Amendment provides that “[t]he Judicial power of the United States shall not

be construed to extend to any suit in law or equity, commenced or prosecuted against one of the
United States by Citizens of Another State, or by Citizens of any Foreign State.” U.S. Const.
Amend. 11. Thus, § 1983 suits against a state, its agencies, and its officials sued in their official
capacities for damages are barred absent a waiver by the State or a valid congressional override.
Kentucky v. Graham, 473 U.S. 159, 169 (1985); Alabama v. Pugh, 438 U.S. 781, 781 (1978); but
see Ex parte Young, 209 U.S. 123 (1908) (suit against state officials in their official capacities for
prospective equitable relief to remedy ongoing violations of federal law are not barred by the
Eleventh Amendment).
The North Carolina Department of Corrections is not a “person” within the meaning of the
State of North Carolina and shares the State’s sovereign immunity. Bennett v. Reed, 534 F.Supp.
83, 85 (E.D.N.C. 1981), aff’d, 676 F.2d 690 (4th Cir. 1982). Therefore, suit against NC DPS is
precluded and NC DPS is dismissed as a Defendant in this action.
(3)

John and Jane Does
John Doe suits are permissible only against “real, but unidentified, defendants.” Schiff v.

Kennedy, 691 F.2d 196, 197 (4th Cir. 1982). The designation of a John Doe defendant “is generally
not favored in federal courts; it is appropriate only when the identity of the alleged defendant is
not known at the time the complaint is filed and the plaintiff is likely to be able to identify the
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defendant after further discovery.” Njoku v. Unknown Special Unit Staff, 217 F.3d 840, 840 (4th
Cir. 2000). “[I]f it does not appear that the true identity of an unnamed party can be discovered
through discovery or through intervention by the court, the court could dismiss the action without
prejudice.” Schiff, 691 F.2d at 197-98 (because it appeared that John Doe was an actual person, it
was error for the district court to conclude that, under appropriate circumstances, this type of case
would not be permitted).
Plaintiff attempts to name as Defendants “and any N.C. Dept of Public Safety/ Division of
Prisons, employees, agents, or representatives whose work place are Mountain View Correctional
Institution, Avery Mitchell Correctional Institution and any other prisons operated by the
defendants charged with responding to requests for medical care for HCV Infections from nowunknown inmates within the NC prison systems.” (Doc. No. 8 at 14). Even if Plaintiff was able to
identify the John and Jane Doe Defendants described in the Amended Complaint, the claims
against them would be subject to dismissal because they are too vague to state a claim. The
Amended Complaint makes no attempt to individually identify the Doe Defendants, does not state
a short and plain claim against any of them, and fails to explain how the Doe Defendants’ actions,
rather than DPS policy, has caused the deprivation of his rights.
Therefore, the claims against the John and Jane Doe Defendants are dismissed.
(4)

Deliberate Indifference
“[T]he Eighth Amendment’s prohibition against ‘cruel and unusual punishments’ [extends]

to the treatment of prisoners by prison officials,” and “forbids the unnecessary and wanton
infliction of pain.” Hill v. Crum, 727 F.3d 312, 317 (4th Cir. 2013) (internal quotation marks
omitted). Deliberate indifference to serious medical needs of prisoners “constitutes the
unnecessary and wanton infliction of pain proscribed by the Eighth Amendment.” Estelle v.
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Gamble, 429 U.S. 97, 104 (1976) (citation and internal quotation marks omitted).
The deliberate indifference standard has two components. The plaintiff must show that he
had serious medical needs, which is an objective inquiry, and that the defendant acted with
deliberate indifference to those needs, which is a subjective inquiry. See Iko v. Shreve, 535 F.3d
225, 241 (4th Cir. 2008). A “serious medical need” is “one that has been diagnosed by a physician
as mandating treatment or one that is so obvious that even a lay person would easily recognize the
necessity for a doctor's attention.” Id. at 241 (internal quotation marks omitted). An actionable
deliberate indifference claim does not require proof that the plaintiff suffered an actual injury.
Instead, it is enough that the defendant’s actions exposed the plaintiff to a “substantial risk of
serious harm.” Farmer v. Brennan, 511 U.S. 825, 837 (1994); see also Rish v. Johnson, 131 F.3d
1092, 1096 (4th Cir. 1997) (deliberate-indifference standard requires prisoner to “produce
evidence of a serious or significant physical or emotional injury resulting from the challenged
conditions, or demonstrate a substantial risk of such serious harm resulting from the prisoner's
unwilling exposure to the challenged conditions” (citation omitted)). “Disagreements between an
inmate and a physician over the inmate’s proper medical care do not state a § 1983 claim unless
exceptional circumstances are alleged.” Wright v. Collins, 766 F.2d 841, 849 (4th Cir. 1985) (citing
Gittlemacker v. Prasse, 428 F.2d 1, 6 (3d Cir. 1970)).
A mere delay or interference with treatment can be sufficient to constitute a violation of
the Eighth Amendment. Smith v. Smith, 589 F.3d 736, 739 (4th Cir. 2009). In such cases, in
addition to establishing that his medical need was objectively serious, a plaintiff also must show
that the delay in providing medical care caused him to suffer “substantial harm.” Webb v.
Hamidullah, 281 Fed. Appx. 159, 166 (4th Cir. 2008).

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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
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, 511 U.S. at 837; 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).
Plaintiff argues that Defendants were deliberately indifferent to his life-threatening and
painful medical condition by refusing breakthrough drug therapy that is the community medical
standard of care, for non-medical reasons. Defendants have jointly enforced the Health Service
policy and procedure that contravenes clearly established Hepatitis-C professional medical
community standard of care. Health Services policy and procedure requires Hepatitis-C positive
inmates to develop serious and permanent health complications before breakthrough drugs are
provided. While waiting for medical care, Plaintiff’s health significantly deteriorated and he now
suffers from liver failure. (Doc. No. 8 at 26).
Plaintiff has adequately alleged that his Hepatitis-C viral infections and attendant health
consequences are serious medical needs. See generally Erickson v. Pardus, 551 U.S. 89 (2007)
(granting certiorari and vacating judgment upon finding that prisoner’s complaint alleging that
termination of his treatment for Hepatitis-C was endangering his life was sufficient to state an

12

Eighth Amendment deliberate indifference claim).
He has also adequately alleged that Defendants were deliberately indifferent by enacting
and enforcing policies and procedures that have delayed needed treatment based on non-medical
reasons, and are purposefully required Plaintiff suffer severe health complications before
providing treatment to cure his Hepatitis-C infection.
These allegations state a facially sufficient claim of deliberate indifference to Plaintiff’s
serious medical needs and this claim will be permitted to proceed.
(5)

Americans with Disabilities Act
To establish a prima facie case under Title II of the ADA, a plaintiff must show that: (1)

he has a disability; (2) he was either excluded from participation in or denied the benefits of some
public entity's services, programs, or activities for which he was otherwise qualified; and (3) such
exclusion, denial of benefits, or discrimination was by reason of his disability. See Constantine v.
George Mason Univ., 411 F.3d 474, 498 (4th Cir. 2005); Baird v. Rose, 192 F.3d 462, 467 (4th
Cir. 1999). States are obligated to make “reasonable modifications” to enable the disabled person
to receive the services or participate in programs or activities. 42 U.S.C. § 12131(2). A reasonable
modification does not require the public entity to employ any and all means to make services
available to persons with disabilities. Rather, the public entity is obligated to make those
modifications that do not “fundamentally alter the nature of the service or activity of the public
entity or impose an undue burden.” Miller v. Hinton, 288 Fed. Appx. 901, 902 (4th Cir. 2008)
(quoting Bircoll v. Miami-Dade County, 480 F.3d 1072, 1082 (11th Cir. 2007)).
Plaintiff claims that Defendants discriminated against him, caused him to be excluded from
participating in programs, and denied him access to services that are available to non-Hepatitis-C

13

infected North Carolina prison system inmates. (Doc. No. 8 at 44). Plaintiff may serve a longer
prison sentence because he is being denied gain-time that is available to other inmates.
Plaintiff has stated a facially sufficient claim of discrimination under the ADA and this
claim will be permitted to proceed. See generally Randolph v. Rodgers, 170 F.3d 850, 857 (8th Cir.
1999) (holding that a deaf inmate stated a prima facie ADA violation by alleging that he did not
receive the full benefits of participating in prison disciplinary and classification proceedings due
solely to his disability).
(6)

Rehabilitation Act
To establish a prima facie case under the RA, a plaintiff must prove that: (1) he has a

disability; (2) he is otherwise qualified for the benefit in question; and (3) he was excluded from
the benefit “due to discrimination solely on the basis of the disability.” Atkins v. Holder, 529 Fed.
Appx. 318, 319-20 (4th Cir. 2013). The RA has a stricter causation requirement than the ADA in
that the disability must be the sole cause, as opposed to one of multiple causes, of the
discrimination. See Thomas v. Salvation Army S. Territory, 841 F.3d 632, 641 (4th Cir. 2016).
Plaintiff alleges that Defendants discriminated against him and caused him to be excluded
from participating in programs and denied access to services in the North Carolina prison system,
including access to federally funded programs, due to his Hepatitis-C disabilities. (Doc. No. 8 at
48).
These allegations sufficiently state a claim under the RA which will be permitted to
proceed. See generally Randolph, 170 F.3d at 858.
(7)

Equal Protection
The Fourteenth Amendment’s Equal Protection Clause provides that “[n]o State shall ...

deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. Amend.
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XIV, § 1.2 The equal protection requirement “does not take from the States all power of
classification,” Personnel Adm’r v. Feeney, 442 U.S. 256, 271 (1979), but “keeps governmental
decisionmakers from treating differently persons who are in all relevant respects alike.” Nordlinger
v. Hahn, 505 U.S. 1, 10 (1992). To succeed on an equal protection claim, a § 1983 plaintiff “must
first demonstrate that he has been treated differently from others with whom he is similarly situated
and that the unequal treatment was the result of intentional or purposeful discrimination.” Morrison
v. Garraghty, 239 F.3d 648, 654 (4th Cir. 2001). If he makes this showing, “the court proceeds to
determine whether the disparity in treatment can be justified under the requisite level of scrutiny.”
Id. Ordinarily, when a state regulation or policy is challenged under the Equal Protection Clause,
unless it involves a fundamental right or a suspect class, it is presumed to be valid and will be
sustained “if there is a rational relationship between the disparity of treatment and some legitimate
governmental purpose.” Heller v. Doe, 509 U.S. 312, 319–320 (1993). The Fourth Circuit does
not recognize prisoners as “a suspect class.” Roller v. Gunn, 107 F.3d 227, 233 (4th Cir. 1997).
When equal protection challenges arise in a prison context, however, courts must adjust the level
of scrutiny to ensure that prison officials are afforded the necessary discretion to operate their
facilities in a safe and secure manner. See Morrison, 239 F.3d at 654–55. In a prison context,
therefore, the court must determine whether the disparate treatment is “reasonably related to [any]
legitimate penological interests.” Shaw v. Murphy, 532 U.S. 223, 225 (2001). This deferential
standard applies “even when the alleged infringed constitutional right would otherwise warrant
higher scrutiny;” however, this more deferential review does not ignore the concerns that justify
application of a heightened standard outside of the prison context. Morrison, 239 F.3d at 655-56.

In addition to the Fourteenth Amendment, Plaintiff cites the United States Constitution’s Fifth Amendment
in support of his equal protection argument, however, the Fifth Amendment contains no equal protection clause. (Doc.
No. 8 at 38).
2

15

Plaintiff argues that Defendants are violating equal protection by screening and treating
Hepatitis-C in a significantly different manner than it screens and treats HIV/AIDS in North
Carolina prisons without a rational medical justification for doing so. (Doc. No. 8 at 38).
To make out an equal protection violation, Plaintiff would have to allege that he was being
treated differently from other similarly situated – i.e. Hepatitis-C positive – inmates. Comparing
himself to HIV-infected inmates is unavailing because HIV and Hepatitis-C infected inmates
suffer from distinct viruses and are not similarly situated. Plaintiff has failed to allege that he is
being treated differently from similarly situated individuals, and therefore, he has failed to state
an equal protection claim.
(8)

State Law Claims
The district courts have supplemental jurisdiction over claims that are so related to the

claims over which the court has original jurisdiction that they “form part of the same case or
controversy under Article III of the United States Constitution.” 28 U.S.C. § 1367(a). A court may
decline to exercise supplemental jurisdiction if: (1) the claim raises a novel or complex issue of
state law; (2) the claim substantially predominates over the claim or claims over which the district
court has original jurisdiction; (3) the district court has dismissed all claims over which it has
original jurisdiction; or (4) in exceptional circumstances, there are other compelling reasons for
declining jurisdiction. 28 U.S.C. § 1367(c)(1)-(4).
Plaintiff seek relief under North Carolina Constitution Article 1, Section 27, which
prohibits cruel and unusual punishment, and Article 1, Sections 1, 2, 3, and Article 4, Section
13(1), which provide legal remedies. (Doc. No. 8 at 15).
Plaintiff’s federal deliberate indifference claim is being permitted to proceed, and the North
Carolina claims are not novel, complex, or substantially predominate the case. Therefore, the Court
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will exercise supplemental jurisdiction and allow the North Carolina claims to proceed at this time.
VI.

CONCLUSION

The Amended Compliant will be permitted to proceed on Plaintiff’s claims of deliberate
indifference to a serious medical need, violation of the ADA, violation of the RA, and violations
of North Carolina law. The Amended Compliant is dismissed insofar as Plaintiff attempts to obtain
relief on behalf of others, against the NC DPS, and against John and Jane Doe Defendants. The
motion for mandatory preliminary injunctive relief for immediate provision of “breakthrough”
drug treatment is denied as moot.
V.

CONCLUSION

For the reasons stated herein, Plaintiff’s motion for preliminary injunction is denied as
moot, and his motion to certify a class is denied. His claims of deliberate indifference to a serious
medical need and violations of the ADA and RA have passed initial review, and the Court will
exercise supplemental jurisdiction over Plaintiff’s North Carolina law claim. The remaining claims
will be dismissed.
IT IS, THEREFORE, ORDERED that:
1. Plaintiff’s motion to certify a class that is incorporated in the Amended Complaint is
DENIED.
2. Plaintiff’s motion for preliminary injunction that is incorporated in the Amended
Complaint is DENIED as moot.
3. Plaintiff’s claims of deliberate indifference to a serious medical need, and violations of
the ADA and RA survive initial review under 28 U.S.C. § 1915, and the Court will
exercise supplemental jurisdiction over Plaintiff’s North Carolina law claims.
4. The claims that Plaintiff attempts to assert claims on behalf of others, claims against
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the North Carolina Department of Public Safety, and claims against John and Jane Doe
Defendants are dismissed.
5. IT IS FURTHER ORDERED THAT the Clerk is directed to mail summons forms to
Plaintiff for Plaintiff to fill out and return for service of process on Defendants James
Duckworth, Bret Bullis, Chad Green, David W. Guice, Robert Urhen, Frank L.
Perry, Keith Damico, FNU Penland, Paula Y. Smith, FNU Stroupe, FNU Remfro,
Cindy Haynes, Carolyn Buchanan, James Vaughn, Sandra Pittman, Norma
Melton, Mike Slagle, and Mike Ball. Once the Court receives the summons forms,
the Clerk shall then direct the U.S. Marshal to effectuate service on Defendants. The
Clerk is respectfully instructed to note on the docket when the form has been mailed to
Plaintiff.
Signed: January 16, 2018

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