Spann v. NC Department of Public Safety et al

Filing 38

ORDER granting in part as to deft North Carolina Department of Public Safety's 27 Motion to Dismiss, and dismissing such deft from this action as it enjoys Eleventh Amendment immunity; denying without prejudice defts Ch ristopher Crawford's, Dexter Gibbs's, Jamie Grindstaff's, Norma Melton's, Frank Perry's, Michael Slagle's, Paula Smith's, and George Solomon's 27 Motion for Judgment on the Pleadings; and denying without prej udice Deft Robert Uhren's 29 Motion to Dismiss. FURTHER ORDERED Mary March Williams Exum is TERMINATED as counsel of record for pltf in this matter as it appears from public record of the North Carolina State Bar that her license has been suspended for a term of five years. Signed by District Judge Max O. Cogburn, Jr. on 8/29/2017. (ejb)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
DOCKET NO. 1:17-cv-00104-MOC-DLH
RONALD WAYNE SPANN,

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Plaintiff,
Vs.
NORTH CAROLINA DEPARTMENT OF
PUBLIC SAFETY
FRANK PERRY
GEORGE SOLOMON
PAULA SMITH
NORMA MELTON
MICHAEL SLAGLE
JAMIE GRINDSTAFF
DEXTER GIBBS
ROBERT UHREN
CHRISTOPHER CRAWFORD,
Defendants.

ORDER

THIS MATTER is before the court on defendants Christopher Crawford’s, Dexter Gibbs’s, Jamie
Grindstaff’s, Norma Melton’s, North Carolina Department of Public Safety’s, Frank Perry’s, Michael
Slagle’s, Paula Smith’s, and George Solomon’s Motion for Judgment on the Pleadings (#27) and defendant
Robert Uhren’s Motion to Dismiss (#29). In considering a Rule 12(c) "Motion for Judgment on the
Pleadings" courts apply the same standards as a motion made pursuant to Rule 12(b)(6). Burbach
Broadcasting Co. of Delaware v. Elkins Radio Corp., 278 F.3d 401, 405-406 (4th Cir. 2002).
As to the claim of Eleventh Amendment immunity, the court finds that defendant North Carolina
Department of Public Safety enjoys immunity from both suit and from defending this action as a matter of
law and will dismiss such defendant with prejudice. Neither the State nor it agencies constitute “persons”
subject to suit under Section 1983. Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989); Thompson
v. Town of Dallas, 142 N.C. App. 651 (2001). The Eleventh Amendment bars plaintiff's suit for monetary

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damages against the State of North Carolina and its various agencies. Ballenger v. Owens, 352 F.3d 842,
844-45 (4th Cir. 2003). Governmental or sovereign immunity also prevents the State or its agencies from
being sued without its consent or waiver. DeMurry v. N.C. Dep't of Corr., 195 N.C. App. 485, 492, 673
S.E.2d 374, 380 (2009) (citations omitted). As plaintiff has not alleged that the State of North Carolina has
waived its sovereign immunity, the NCDPS will be dismissed.
As to the remaining individual state employee defendants and Dr. Uhren, the court finds that the
issues raised under Rule 12 can better be addressed at summary judgment after the close of discovery. The
court will deny these motions without prejudice as to defendants reasserting the substantive arguments at
that time. Remaining counsel1 for plaintiff is, however, advised that defendants have raised arguments that
bear close consideration inasmuch as: even proof of mere medical negligence will not support Section 1983
claims of deliberate indifference to serious medical needs; it is plaintiff’s burden to show that he exhausted
available administrative remedies even if he did not believe they would be effective; and that he was
obligated to file claims within the 3-year statute of limitations. Indeed, “[t]o establish that a health care
provider's actions constitute deliberate indifference to a serious medical need, the treatment, [or lack
thereof], 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). A mere
disagreement between an inmate and the prison's medical staff as to the inmate's diagnosis or course of
treatment does not support a claim of cruel and unusual punishment unless exceptional circumstances exist.
Wright v. Collins, 766 F.2d 841, 849 (4th Cir.1985). At summary judgment, the court will then consider
whatever evidence the parties have been able to discovery on these issues.

ORDER

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As it appears that co-counsel for plaintiff has been suspended from the practice of law in North Carolina,
the court will terminate Ms. Exum as counsel of record as her admission in this court is dependent on having an
active North Carolina State Bar license. See 16DHC18 (as retrieved 8/29/2017).

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IT IS, THEREFORE, ORDERED that defendant North Carolina Department of Public Safety
Motion to Dismiss (#27) GRANTED in part and such defendant is DISMISSED from this action as it
enjoys Eleventh Amendment immunity; defendants Christopher Crawford’s, Dexter Gibbs’s, Jamie
Grindstaff’s, Norma Melton’s, Frank Perry’s, Michael Slagle’s, Paula Smith’s, and George Solomon’s
Motion for Judgment on the Pleadings (#27) is otherwise DENIED without prejudice; and defendant Robert
Uhren’s Motion to Dismiss (#29) is DENIED without prejudice.
IT IS FURTHER ORDERED that Mary March Williams Exum is TERMINATED as counsel
of record for plaintiff in this matter as it appears from the public record of the North Carolina State Bar that
her license has been suspended for a term of five years.

Signed: August 29, 2017

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