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

Filing 58

ORDER that 36 , 47 Defendants Uhren and DAmico's Motions to Dismiss State Law Claims and Motions for Summary Judgment Limited to Failure to Exhaust Administrative Remedies are GRANTED; Plaintiff's 48 Motions to Compel Attendance of a Confined Witness, 49 , 57 and to Subpoena Evidence are DENIED; and Defendant Uhren's 51 Motion to Extend the Time for Filing Dispositive Motions is DENIED as moot. The Clerk of Court is instructed to terminate Defendants Uhren and DAmico as parties to this action. Signed by Chief Judge Frank D. Whitney on 7/27/2018. (Pro se litigant served by US Mail.) (khm)

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

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

ORDER

THIS MATTER comes before the Court on Motions filed by Defendants Robert J. Uhren,
M.D., and Keith D’Amico, P.A., to Dismiss State Law Claims and for Summary Judgment Limited
to Failure to Exhaust Administrative Remedies, (Doc. Nos. 36, 47). Also pending are Plaintiff’s
Motions to Compel Attendance of a Confined Witness, (Doc. No. 48), and to Subpoena Evidence,
(Doc. Nos. 49, 57), and Defendant Uhren’s Motion to Extend the Time for Filing Dispositive
Motions, (Doc. No. 51).
I.

BACKGROUND

Plaintiff filed pro se Complaint on August 1, 2016, (Doc. No. 1), and an Amended
Complaint on December 29, 2016, (Doc. No. 8). The Amended Complaint passed initial review
on claims of deliberate indifference to Plaintiff’s serious medical need, Hepatitis-C infection,
under 42 U.S.C. § 1983, the Americans with Disabilities Act, the Rehabilitation Act, and the Court
exercised pendent jurisdiction over Plaintiff’s North Carolina claims. (Doc. No. 18). The
remaining Defendants are James Duckworth, Bret Bullis, Chad Green, David W. Guice, Robert
Uhren, Frank L. Perry, Keith D’Amico, FNU Penland, Paula Y. Smith, FJU Stroupe, FNU Remfro,
1

Cindy Haynes, Carolyn Buchanan, James Vaughn, Sandra Pittman, Norma Melton, Mike Slagle,
and Mike Ball.

(1)

Amended Complaint (Doc. No. 8)
Plaintiff argues that Defendants were deliberately indifferent to his life-threatening and

painful Hepatitis-C condition by refusing breakthrough drug therapy that is the community
medical standard of care, for non-medical reasons. He alleges that 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 has
significantly deteriorated and he now suffers from liver failure. (Doc. No. 8 at 26). He also 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.
With regards to the ADA and RA discrimination, Plaintiff claims that Defendants
discriminated against him, caused him to be denied access to services and programs in the North
Carolina prison system, including access to federally-funded programs, that are available to nonHepatitis-C infected North Carolina prison system inmates. Further, Plaintiff may serve a longer
prison sentence because he is being denied gain-time that is available to other inmates.

2

Finally, Plaintiff seeks 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).
(2)

Defendants’ Motions to Dismiss and for Summary Judgment (Doc. Nos. 36, 47)
Defendants Uhren and D’Amico argue that Plaintiff has asserted North Carolina medical

negligence claims that must be dismissed because he has failed to comply with North Carolina
General Statutes § 1A-1, and Rule 9(j) of the North Carolina Rules of Civil Procedure.
Defendants seek summary judgment because Plaintiff failed to exhaust administrative
remedies before commencing this action. None of the seven exhausted administrative appeals that
Plaintiff completed between that date and the date the Complaint was filed assert the claims against
Defendants Uhren and D’Amico that Plaintiff makes against him in the Complaint and Amended
Complaint. Uhren and D’Amico argue that the only two grievances that fairly present the
allegations against them, grievance numbers 2699 and 3044, were not completed before Plaintiff
filed his Complaint and thus failed to exhaust his claims. Seven grievance procedures that Plaintiff
completed during the relevant time demonstrate that the administrative remedy procedure was
available to him.
(3)

Plaintiff’s Responses1 (Doc. Nos. 46, 54)
Plaintiff filed an “Affidavit of Facts with Exhibits,” (Doc. No. 46), that appears to be a

Response to Defendant Uhren’s Motion, in which he states that he will be seeking default judgment
and that Defendant Uhren’s motion should be denied. He attaches an unverified “Affidavit,” a
narrative discussing his medical history, and various medical records and pleadings.

1
The Court issued Orders pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), instructing Plaintiff
regarding his right to respond to Defendants’ Motions. See (Doc. Nos. 42, 50).

3

Plaintiff filed a “Motion to Dismiss NC State Rule 9(j) Against Plaintiff,” (Doc. No. 54),
in which he argues that Defendant D’Amico’s defense does not apply to the instant case, but rather,
to a case before the North Carolina Industrial Commission that was “voluntarily withdrawn.” 2 He
argues that Rule 9(j) does not apply to this case, and therefore, it should be rendered an invalid
defense and the Defendants’ Motions should be denied.
(4)

Defendant D’Amico’s Reply (Doc. No. 56)
In his Reply, Defendant D’Amico notes that Plaintiff has failed to respond to the Motion

for Summary Judgment addressing the exhaustion of administrative remedies and argues that
Plaintiff’s allegation that Rule 9(j) does not apply is incorrect.
(5)

Evidence3
(A)

Offender Information Screen (Doc. No. 37-1)

The OPUS Online Offender Information Screen reveals that Plaintiff was at AveryMitchell C.I from March 29, 2011 through June 12, 2012; October 11, 2012 through November
19, 2013; and December 3, 2013 through March 22, 2016. He was at Mountain View C.I. on March
22, 2016 through July 20, 2017, and July 27, 2017, through January 1, 2018.
(B)

Defendant Uhren’s Affidavit (Doc. No. 37)

Of the facilities listed on Plaintiff’s inmate movement record, Defendant Uhren only
treated him, if at all, at Mountain View C.I. and Avery-Mitchell C.I. He did not treat him at Craggy
C.I. in 2009, 2010, or 2012.
(C)

Defendant D’Amico’s Affidavit (Doc. No. 47-1)

Of the facilities listed on Plaintiff’s movement record, Defendant D’Amico only treated

2

Plaintiff has attached handwritten document purporting to be copies of N.C. Industrial Commission

pleadings.
3

This section is not exhaustive.

4

inmates at Mountain View and Avery-Mitchell C.I.s. While he currently provides certain care at
Craggy C.I., he did not do so in 2009-2010 and 2012. (Doc. No. 47-1 at 1).
(D)

Kimberly Grande Affidavit (Doc. No. 38)

Kimberly Grande, the Executive Director of the N.C. Inmate Grievance Resolution Board
in Raleigh, Reviewed Plaintiff’s Board of Grievance Appeals records from March 29, 2011,
through August 3, 2016. The Board received seven Step-3 appeals from Plaintiff in that period:








2/3/12, Grievance Number 4680-W-12-0022; Board order issued 3/9/12 (Doc. No. 38-2)
4/10/12, Grievance Number 4680-Y-12-0036, Board order issued 4/27/12 (Doc. No. 383)
11/19/14, Grievance Number 4680-Y-14-0139, Board order issued 1/14/15 (Doc. No. 384)
12/29/14, Grievance Number 4680-Y-14-0152, Board order issued 3/2/15 (Doc. No. 385)
10/26/15, Grievance Number 4680-W-15-0118, Board order issued 12/11/5 (Doc. No.
38-6)
1/11/16, Grievance Number 4680-2016-WBC-00012, Board order issued 2/24/16 (Doc.
No. 38-7)
2/12/16, Grievance Number 4680-2016-WBC-00091, Board order issued 3/29/16 (Doc.
No. 38-8)
Plaintiff submitted at least two other grievances during that time period, but there were no

other appeals from him. (Doc. No. 38 at 3).
(E)

Grievances

W4680-12-0022
2/3/12 Administrative Remedy Procedure (Doc. No. 38-2)
Officer Pritchard ignores policies and procedures and has subjected Plaintiff
to harassment and intimidation; alleged hostility and threats to place
Plaintiff in segregation on 2/3/12 during a cell search
2/7/12 Step-1 Response (Doc. No. 38-2 at 6)
An investigation found no information to support the allegations against
Officer Pritchard
2/18/12 Step-2 Response (Doc. No. 38-2 at 6)
Staff adequately responded to the complaint
5

3/9/12 Step-3 Response (Doc. No. 38-2 at 7)
Grievance is dismissed for lack of supporting evidence
Y8680-12-0036
4/10/12 Administrative Remedy Procedure (Doc. No. 38-3 at 2)
Plaintiff cannot get a job because of medical restrictions placed on him; he
has no idea why the restrictions are in place; requesting that the restrictions
be lifted so he can work and earn gain time
4/11/12 Step-1 Response (Doc. No. 38-3 at 5)
Plaintiff reported back pain to medical and the restrictions were placed on
him; if he feels they are in error and he would like to be re-evaluated, submit
a sick call, or if he would like to refuse the restrictions, submit an inmate
request and he will be allowed to sign a refusal
4/17/12 Step-2 Response (Doc. No. 38-3 at 5)
The Step-1 response is correct
4/27/12 Step-3 Response (Doc. No. 39-3 at 6)
Proper action was taken by staff and the grievance is considered resolved
Y4680-14-0139
11/19/14 Administrative Remedy Procedure (Doc. No. 38-4 at 2)
Medical is negligent regarding Plaintiff’s diabetic neuropathy; the stateissued boot hurts Plaintiff’s feet; requesting a different pair of boots
12/3/14 Step-1 Response (Doc. No. 38-4 at 2)
Medical states that Plaintiff refused his medical issued boots; they are the
only ones available at present
12/22/14 Step-2 Response (Doc. No. 38-4 at 5)
No further action is warranted
1/14/15 Step-3 Response (Doc. No. 38-4 at 6)
Considered resolved
Y4680-14-0252
12/29/14 Administrative Remedy Procedure (Doc. No. 38-5 at 2)
Plaintiff did not refuse medical boots; the boots they tried to give him were
regular boots, not medical therapy boots; medical is refusing medical
therapy boots for his diabetic neuropathy which is causing unnecessary
constant pain in violation of the 8th Amendment

6

1/7/15 Step-1 Response (Doc. No. 38-5 at 5)
Plaintiff was approved and issued boots but he refused them; he can submit
a sick call to be seen and discuss further with the provider
1/28/15 Step-2 Response (Doc. No. 38-5 at 5)
No further action is warranted
3/2/15 Step-3 Response (Doc. No. 38-5 at 6)
Considered resolved
W4680-15-0018
10/26/15 Administrative Remedy Procedure (Doc. No. 38-6 at 2)
Plaintiff’s legal mail was opened by Medical on July 19, 2015, and removed
records from September 23, to August 1
11/3/15 Step-1 Response (Doc. No. 38-6 at 6)
There are numerous discrepancies in the grievance, including the fact that
legal mail is not distributed on Sundays such as July 19, 2015; he did not
receive any legal mail from the NC Justice Department in July 2015; the
Meical Department does not receive any incoming mail, only the mail room;
and the grievance time frame has expired so no further action is
recommended
11/17/15 Step-2 Response (Doc. No. 38-6 at 6)
Step 1 adequately addresses the offender’s concerns
11/30/15 Step-3 Response (Doc. No. 38-6 at 7)
Dismissed for lack of supporting evidence

4680-2016-WBC-00012
1/11/16 Administrative remedy procedure (Doc. No. 38-7 at 2)
Plaintiff was seen by the Avery-Mitchell Medical Department on a sick
request for rectal bleeding, fatigue, and dizziness, and was sent to Grace
Memorial Hospital that same evening after he declared a medical
emergency; the ER doctor at Grace diagnosed a serious medical condition,
recommended hospitalization for 3 days, and prescribed insulin for an
extremely high blood sugar level; upon his return to Avery-Mitchell, Dr.
Uhren refused to provide the medication that the ER doctor prescribed
1/14/16 Step-1 Response (Doc. No. 38-7 at 7)
Nothing in the Grace Hospital report or Avery Mitchell records recommend
that Plaintiff be started on insulin, however, Dr. Uhren made the decision to
begin insulin anyway on 01/07/16, 4 days before the grievance; nurses
7

present when Plaintiff was seen by D’Amico say that D’Amico never
referred to the state of North Carolina’s financial condition, that he was
going to order the needed medication, and whether or not he took it was up
to Plaintiff; Plaintiff refused to have his blood sugar checked on 2 occasions
1/19/16 Step-2 Response (Doc. No. 38-7 at 9)
Step 1 adequately addresses Plaintiff’s concerns
2/24/16 Step-3 Response (Doc. No. 38-7 at 10)
grievance dismissed for lack of evidence that staff violated policy
4680-2016-WBC-00081
2/12/16 Administrative Remedy Procedure. (Doc. No. 38-8 at 2)
Plaintiff saw Dr. Domingo on 1/21/16, who told him he would be referred
to Dr. Yurin for hepatitis treatment; it has been 22 days and Plaintiff has not
been seen or given notice of and appointment; remedy sought to resolve the
grievance: “To receive hepatitis-C treatment.”
2/22/16 Step-1 Response (Doc. No. 38-8 at 3)
Dr. Uhren reviewed his chart on 2/4/16 and scheduled Plaintiff to see him
to discuss hepatitis treatment; this is non-urgent and Plaintiff will be seen
as soon as possible; Dr. Uhren will submit UR for treatment at that time
after he determines if Plaintiff qualifies; Plaintiff should watch for his
appointment time to be posted
2/23/16 Step-2 Response (Doc. No. 38-8 at 4)
Step 1 adequately addresses Plaintiff’s concerns
3/29/16 Step-3 Response (Doc. No. 38-8 at 5)
No supporting evidence that staff violated policy, grievance dismissed
4855-2016-GPOD-02699
7/11/16 Administrative Remedy Procedure (Doc. No. 5-1 at 13)
Plaintiff has been requesting Hepatitis-C treatment for the past 9 years; his
liver is now to the point that he has continued pain & suffering daily; he is
gaining fluid and having a rash caused by liver failure
7/29/16 Step-1 Response (Doc. No. 5-1 at 14)
Plaintiff has an appointment in the near future for an abdominal ultrasound;
once this is done he will see Dr. Uhren to discuss treatment for Hepatitis-C
8/17/16 Step-2 Response (Doc. No. 5-1 at 15)
An investigation found: Plaintiff has been scheduled for an ultrasound,
which should take place very soon; after that has been completed, Plaintiff
8

will talk to a provider to discuss further treatment options; no further
recommendation has been made
8/20/16 Step-3 Response (Doc. No. 8-1 at 4)
Staff adequately addressed Plaintiff’s concerns; he is encouraged to
continue to sign up for sick call and inform staff of any concerns or changes;
considered resolved
4855-2016-GPOD-03044
8/17/16 Administrative Remedy Procedure Filed; see (Doc. No. 8-1 at 3)
10/13/16 Step-3 Response (Doc. No. 8-1 at 3)
Plaintiff stated he was being treated unfairly when his request to be treated
for Hepatitis-C was ignored; it appears that staff adequately addressed his
concerns; inmate is encouraged to continue to sign up for sick call and
inform staff of any concerns or changes; considered resolved
4855-2016-GPOD-03782
10/27/16 Administrative Remedy Procedure (Doc. No. 8-1 at 6)
Plaintiff reports extreme pain in his chest, back, and lungs, vomiting, and
having diarrhea: Nurse Ballman screened Plaintiff’ on an emergency sick
call he submitted on 10/27/16; Plaintiff’s blood pressure was 190 over 99
but Ballman refused to treat him and sent me back to the dorm because he
said Plaintiff did not have a sick call for this
10/31/16 DC-410 Screening Response (Doc. No. 8-1 at 5)
Grievance rejected; it can only be accepted when the current grievance
completes Step-2
II.
(1)

LEGAL STANDARDS

Dismissal
A motion to dismiss under Rule 12(b)(6) determines only whether a claim is stated; “it

does not resolve contests surrounding the facts, the merits of a claim, or the applicability of
defenses,” Republican Party v. Martin, 980 F.2d 943, 952 (4th Cir.1992). A claim is stated if the
complaint contains “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) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). In evaluating whether a claim is stated, “[the] court accepts

9

all well-pled facts as true and construes these facts in the light most favorable to the plaintiff,” but
does not consider “legal conclusions, elements of a cause of action, and bare assertions devoid of
further factual enhancement.” Nemet Chevrolet, Ltd. v. Consumeraffairs.com. Inc., 591 F.3d 250,
255 (4th Cir. 2009). Nor does a court accept as true “unwarranted inferences, unreasonable
conclusions, or arguments.” Wahi v. Charleston Area Med. Ctr., Inc., 562 F.3d 599, 615 n. 26 (4th
Cir. 2009).
(2)

Summary Judgment
Summary judgment shall be granted “if the movant shows that there is no genuine dispute

as to any material fact and the movant is entitled to judgment as a matter of law.” Fec. R. Civ. P.
56(a). A factual dispute is genuine “if the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A
fact is material only if it might affect the outcome of the suit under governing law. Id.
The movant has the “initial responsibility of informing the district court of the basis for its
motion, and identifying those portions of the pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if any, which it believes demonstrate the
absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)
(internal citations omitted).
Once this initial burden is met, the burden shifts to the nonmoving party. The nonmoving
party “must set forth specific facts showing that there is a genuine issue for trial.” Id. at 322 n.3.
The nonmoving party may not rely upon mere allegations or denials of allegations in his pleadings
to defeat a motion for summary judgment. Id. at 324. The nonmoving party must present sufficient
evidence from which “a reasonable jury could return a verdict for the nonmoving party.”
Anderson, 477 U.S. at 248; accord Sylvia Dev. Corp. v. Calvert County, Md., 48 F.3d 810, 818
10

(4th Cir. 1995).
When ruling on a summary judgment motion, a court must view the evidence and any
inferences from the evidence in the light most favorable to the nonmoving party. Anderson, 477
U.S. at 255. “‘Where the record taken as a whole could not lead a rational trier of fact to find for
the nonmoving party, there is no genuine issue for trial.’” Ricci v. DeStefano, 557 U.S. 557, 586
(2009) (quoting Matsushita v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).
III.
(1)

DISCUSSION

Dismissal: North Carolina Medical Malpractice
In North Carolina, there are substantive legal requirements that a person must follow to

pursue a medical malpractice claim. A plaintiff asserting negligence must prove the existence of a
legal duty or standard of care owed to the plaintiff by the defendant, breach of that duty, a causal
relationship between the breach of duty and the plaintiff’s alleged injuries, and certain actual injury
or loss sustained by the plaintiff. Camalier v. Jeffries, 340 N.C. 699, 706, 460 S.E.2d 133, 136
(1995); Blackwell v. Hatley, 202 N.C.App. 208, 212, 688 S.E.2d 742, 746 (N.C. Ct. App. 2010).
North Carolina Rule of Civil Procedure 9(j) states in relevant part:
Any complaint alleging medical malpractice by a health care provider
pursuant to G.S. 90-21.11(2)a. in failing to comply with the applicable standard of
care under G.S. 90-21.12 shall be dismissed unless:
(1) The pleading specifically asserts that the medical care and all records pertaining
to the alleged negligence that are available to the plaintiff after reasonable
inquiry have been reviewed by a person who is reasonably expected to qualify
as an expert witness under Rule 702 of the Rules of Evidence and who is willing
to testify that the medical care did not comply with the applicable standard of
care;
(2) The pleading specifically asserts that the medical care and all medical records
pertaining to the alleged negligence that are available to the plaintiff after
reasonable inquiry have been reviewed by a person that the complainant will
seek to have qualified as an expert witness by motion under Rule 702(e) of the
11

Rules of Evidence and who is willing to testify that the medical care did not
comply with the applicable standard of care, and the motion is filed with the
complaint; or
(3) The pleading alleges facts establishing negligence under the existing commonlaw doctrine of res ipsa loquitur.
N.C. R. Civ. P. 9(j).
Failure to comply with Rule 9(j) is ground for dismissal of a state medical malpractice
claim filed in federal court. See, e.g., Estate of Williams–Moore v. Alliance One Receivables
Mgmt. Inc., 335 F.Supp.2d 636, 649 (M.D.N.C. 2004); Frazier v. Angel Med. Ctr., 308 F.Supp.2d
671, 676-77 (W.D.N.C. 2004); Moore v. Pitt County Mem’l Hosp., 139 F.Supp.2d 712, 713-14
(E.D.N.C.2001); see also Thigpen v. Ngo, 355 N.C. 198, 202, 558 S.E.2d 162, 165 (2002). The
North Carolina General Statutes defines a “[m]edical malpractice action” as “[a] civil action for
damages for personal injury or death arising out of the furnishing or failure to furnish professional
services in the performance of medical, dental, or other health care provider.” N.C. Gen. Stat. 9021.11(2)a.
Defendants characterize Plaintiff’s state-law claims as claims for medical malpractice.
Plaintiff does not dispute that characterization. Nor does he dispute Defendants’ allegation that he
failed to comply with Rule 9(j). Plaintiff’s argument in opposition of dismissal – the contention
that Rule 9(j) does not apply to this action – is legally incorrect. See, e.g., Estate of Williams–
Moore, 335 F.Supp.2d at 649; Frazier, 308 F.Supp.2d at 676-77.
Plaintiff has failed to comply with Rule 9(j) with regards to his North Carolina medical
malpractice claims against Defendants Uhren and D’Amico, and therefore, their Motions to
Dismiss Plaintiff’s state law claims will be granted.
(2)

Summary Judgment: Exhaustion of Administrative Remedies
12

The Prison Litigation Reform Act (“PLRA”) requires a prisoner to exhaust his
administrative remedies before filing a section 1983 action. 42 U.S.C. § 1997e(a). The PLRA
provides, in pertinent part: “[n]o action shall be brought with respect to prison conditions under
section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or
other correctional facility until such administrative remedies as are available are exhausted.” Id.
The PLRA’s exhaustion requirement applies to all inmate suits about prison life. Porter v. Nussle,
534 U.S. 516 (2002). Exhaustion is mandatory. Id. at 524 (citation omitted); Jones v. Bock, 549
U.S. 199, 211 (2007). Exhaustion must take place before the commencement of the civil action in
order to further the efficient administration of justice. Id. A prisoner is not entitled to exhaust
administrative remedies during the pendency of an action. Cannon v. Washington, 418 F.3d 714,
719 (7th Cir. 2005); Freeman v. Francis, 196 F.3d 641, 645 (6th Cir. 1999). The PLRA requires
“proper” exhaustion, that is, “using all steps that the agency holds out, and doing so properly (so
that the agency addresses the issues on the merits).’” Woodford v. Ngo, 548 U.S. 81, 90 (2006)
(quoting Pozo v. McCaughtry, 286 F.3d 1022, 1024 (7th Cir. 2002)).
“The level of detail necessary in a grievance to comply with the grievance procedures will
vary from system to system and claim to claim, but it is the prison’s requirements, and not the
PLRA, that define the boundaries of proper exhaustion.” Jones, 549 U.S. at 218. It is well settled
that a grievance does not have to mention a defendant by name so long as the grievance gives the
defendant fair notice of the claim. See Moore v. Bennette, 517 F.3d 717, 729 (4th Cir. 2008) (NC
DPS’s administrative remedy procedure does not require a plaintiff to name each defendant in his
grievances). However, regardless of whether a particular defendant is named in a grievance, if the
grievance fails to give prison authorities fair notice of, and the opportunity to address, the problem
that will later form the basis of the suit against that defendant, dismissal of that defendant is
13

appropriate. See Davidson v. Davis, 2015 WL 996629 at *3 (W.D.N.C. Mar. 6, 2015) (citing
Johnson v. Johnson, 385 F.3d 503, 516-17 (5th Cir. 2004)).
The record reflects that Plaintiff exhausted seven grievances between March 29, 2011,
when Plaintiff arrived at Avery-Mitchell C.I., and August 1, 2016, when the Complaint was filed
in the instant case, Grievance Numbers 22, 36, 139, 252, 18, 12, and 81. He initiated, but did not
complete, three more grievances after the Complaint was filed, Grievance Numbers 2699, 3044,
and 3782.
Of the grievances that were exhausted before Plaintiff filed the Complaint, only Grievance
Number 81 addresses Plaintiff’s Hepatitis-C infection. In it, he alleges that Dr. Domingo told him
on January 21, 2016, that he would be referred to Dr. Uhren4 for treatment, and that 22 days had
passed without Plaintiff having been seen or given notice of an appointment. (Doc. No. 38-8 at 2).
Grievance Number 81 only mentions Dr. Domingo’s allegedly broken promise that
Plaintiff would be receiving an appointment with Dr. Uhren to discuss his Hepatitis-C treatment.
The grievance only puts DPS on notice of the brief 22-day delay in the prison’s appointment
referral process. It fails to put DPS on fair notice that Dr. Uhren, P.A. D’Amico saw Plaintiff and
was deliberately indifferent to Plaintiff’s Hepatitis-C infection by refusing to provide breakthrough
drug therapy, the long-term denial of which caused Plaintiff’s health to deteriorate. See, e.g.,
Picken v. Lewis, 2017 WL 3277121 (W.D.N.C. Aug. 1, 2017) (granting summary judgment to
defendant where prisoner’s grievance records did not mention the defendant or identify any
conduct whatsoever by that defendant); Davidson, 2015 WL 996629 at *3 (dismissing a failure to
supervise claim where the plaintiff’s grievance allegations focused on excessive force and did not
mention failure to supervise)

4

Spelled “Yuren” in the grievance.

14

Plaintiff first complained that he had been seeking Hepatitis-C treatment for nine years and
that his liver was sustaining damage from the longstanding denial of Hepatitis-C treatment in
Grievance Number 2699. That grievance was not exhausted until August 20, 2016, 19 days after
Plaintiff filed the Complaint in the instant case. See Porter, 534 U.S. at 524 (exhaustion must be
complete before the action is filed); Jones, 549 U.S. at 211 (same).
Plaintiff failed to put DPS on fair notice of his claim regarding the longstanding denial of
Hepatitis-C breakthrough drug treatment in any grievance that was exhausted before the Complaint
was filed. Therefore, summary judgment will be entered in favor of Defendants Uhren and
D’Amico.
IV.
(1)

PENDING MOTIONS

Plaintiff’s Motion to Compel Attendance of Confined Witness (Doc. No. 48)
Plaintiff has filed a Motion to order the Sheriff to make Plaintiff available for trial. This

Motion will be denied as premature because discovery is still underway, the time to file dispositive
motions has not yet expired, and the Court has not yet determined whether a trial will be warranted.
(2)

Plaintiff’s “Affidavit of Fact with Motion to Supena Evidence” (Doc. Nos. 49, 57)
Plaintiff seeks “fair representation of the court(s)” and “the right to unhindered self-

representation/litigation.” (Doc. No. 49 at 1). He moves to subpoena “all evidence” from
“answering-Defendants, collectively” or “state’s evidence.” (Doc. No. 49 at 2). He seeks all
medical records from 2007 through 2018. (Doc. No. 57 at 1).
These Motions will be denied because Plaintiff seeks discovery, and his requests have been
misdirected to the Court. See Fed. R. Civ. P. 26(c) (as a general matter, a party must make initial
disclosures at or within 14 days after the parties Rule 26(f) conference); Local Rule 26.1 (“Official
Court-ordered and enforceable discovery does not commence until issuance of the scheduling
15

order.”); Local Rule 26.2 (“The parties shall not file any initial disclosures, designations of expert
witnesses and their reports, discovery requests or responses therto, deposition transcripts, or other
discovery material unless: (1) directed to do so by the Court; (2) such materials are necessary for
use in an in-court proceeding; or (3) such materials are filed in support of, or in opposition to, a
motion or petition.”).
(3)

Defendant Uhren’s Motion for an Extension of Time (Doc. No. 51)
Defendant Uhren seeks an extension of time to file dispositive motions until 60 days after

the Court resolves the instant Motions to Dismiss and for Summary Judgment. This motion will
be denied as moot.
V. CONCLUSION
In sum, for the reasons stated herein, Defendants’ Motions to Dismiss and for Summary
Judgment are granted, Plaintiff’s pending Motions will be denied, and Defendant Uhren’s Motion
for an Extension of Time will be denied as moot.
IT IS, THEREFORE, ORDERED that:
1. Defendants Uhren and D’Amico’s Motions to Dismiss State Law Claims and Motions
for Summary Judgment Limited to Failure to Exhaust Administrative Remedies, (Doc.
Nos. 36, 47) are GRANTED.
2. Plaintiff’s Motions to Compel Attendance of a Confined Witness, (Doc. No. 48), and
to Subpoena Evidence, (Doc. Nos. 49, 57), are DENIED.
3. Defendant Uhren’s Motion to Extend the Time for Filing Dispositive Motions, (Doc.
No. 51), is DENIED as moot.
4. The Clerk of Court is instructed to terminate Defendants Uhren and D’Amico as parties
to this action.
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Signed: July 27, 2018

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