Sholtz v. Buncombe Co. Jail et al

Filing 14

ORDER: Plaintiff's 13 Amended Complaint survives initial review under 28 U.S.C. § 1915(e). The Clerk shall send Plaintiff summons forms to fill out so that service may be made on Defendant. Signed by Chief Judge Frank D. Whitney on 3/6/2018. (Pro se litigant served by US Mail.) (maf)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
1:17-cv-263-FDW
JOE L. SHOLTZ,

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Plaintiff,
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vs.
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APRIL STROUPE, 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 November 20, 2017, the Court
entered an order waiving the initial filing fee and directing monthly payments to be made from
Plaintiff’s prison account. (Doc. No. 8). Thus, Plaintiff is proceeding in forma pauperis.
I.

BACKGROUND

Pro se Plaintiff Joe Sholtz is a North Carolina prisoner incarcerated at the Federal
Medical Center in Butner, North Carolina. Plaintiff filed this action on September 20, 2017,
pursuant to 42 U.S.C. § 1983. Pursuant to this Court’s order instructing Plaintiff to file an
Amended Complaint, Plaintiff filed the Amended Complaint on January 16, 2018. (Doc. No.
13). Plaintiff has named as Defendant April Stroupe, identified as a nurse employed by
Southeast Correctional Medical Group, and working at the Buncombe County Jail at all relevant
times.1 Plaintiff purports to bring an Eighth Amendment claim against Defendant for deliberate

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Plaintiff also purports to list an unnamed “Executive” with Southeast Correctional Medical
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indifference to serious medical needs based on Defendant’s refusal to provide him with proper
medical care related to treatment of his throat cancer while Plaintiff was incarcerated as a pretrial detainee at the Buncombe County Jail in 2017. Plaintiff seeks compensatory damages.
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,
§ 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

Claims under 42 U.S.C. § 1983 based on an alleged lack of or inappropriate medical
treatment fall within the Eighth Amendment’s prohibition against cruel and unusual punishment.
Estelle v. Gamble, 429 U.S. 97, 104 (1976). To state a claim under the Eighth Amendment, a
plaintiff must show a “deliberate indifference to serious medical needs” of the inmate. Id.

Group as a Defendant, but the Complaint does not include any specific allegations as to this
unnamed person. Furthermore, to the extent that Plaintiff attempts to name as a Defendant
“Southeast Correctional Medical Group,” this entity is not a “person” subject to suit under
Section 1983.
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“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
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. No right exists to the type or scope of care desired by the individual prisoner. Id.
at 763. 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,
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constitute a claim of medical malpractice”).
The Court finds that, assuming that Plaintiff’s allegations are true, and drawing all
reasonable inferences in his favor, Plaintiff’s claim against Defendant for deliberate indifference
to serious medical needs is not clearly frivolous.
IV.

CONCLUSION

For the reasons stated herein, Plaintiff has alleged a claim for deliberate indifference to
serious medical needs against Defendant sufficient to survive this Court’s initial review.
IT IS, THEREFORE, ORDERED that:
1.

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

2.

The Clerk shall send Plaintiff summons forms to fill out so that service may be
made on Defendant. Once the Court receives the summons forms, the U.S. Marshal
shall effectuate service on Defendant in accordance with Rule 4 of the Federal
Rules of Civil Procedure.

Signed: March 6, 2018

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