Moore v. Lassiter et al

Filing 19

ORDER that the 2 Complaint has passed initial review with respect to Pltf's § 1983 claims against Defts Slagle, Melton, Barrier, and Campbell. Pltf's remaining claims are DISMISSED WITHOUT PREJUDICE. The Cler k of Court shall commence the procedure for waiver of service as set forth in Local Civil Rule 4.3 for Defts Slagle, Melton, Barrier, and Campbell, who are alleged to be current or former employees of NCDPS. FURTHER ORDERED that the Clerk shall mail the Pltf an Opt-In/ Opt-Out form pursuant to the Standing Order in Misc. Case No. 3:19-mc-00060-FDW. Signed by Chief Judge Martin Reidinger on 6/07/2021. (Pro se litigant served by US Mail.) (ejb)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:20-cv-00058-MR

BENSON MOORE,

)
)
Plaintiff,
)
)
vs.
)
)
KENNETH LASSITER, et al.,
)
)
Defendants.
)
_______________________________ )

ORDER

THIS MATTER is before the Court on initial review of the Complaint
[Doc. 2]. Plaintiff is proceeding in forma pauperis. [See Doc. 16].
I.

BACKGROUND
Pro se incarcerated Plaintiff filed this civil rights action in the United

States District Court for the Middle District of North Carolina pursuant to 42
U.S.C. § 1983, the Americans With Disabilities Act (ADA), 42 U.S.C. §
12101, et seq., and the Rehabilitation Act, 29 U.S.C. § 791, et seq.1 The
Complaint named at least 37 state prison officials or personnel as
Defendants regarding allegations that they provided inadequate medical

The Complaint also purports to rely on 18 U.S.C. § 242, “NC Statute 735.40.7(g) &
90.22.21” and North Carolina Department of Public Safety policies. [Doc. 2 at 17].
However, those claims have been dismissed. [Doc. 12 at 3].
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care at several North Carolina prisons, including the Mountain View
Correctional Institution (Mountain View CI). The Middle District dismissed all
claims and Defendants on initial review except for those connected to
incidents that allegedly occurred at Mountain View CI. The Middle District
then transferred the action to this Court for initial review on the remaining
claims and for ruling on the Plaintiff’s Motion to Amend/Update the
Complaint. [See Docs. 11, 12].
Upon transfer of this matter, this Court denied the Plaintiff’s Motion to
Amend/Update on the grounds that the Plaintiff was attempting to amend the
Complaint in a piecemeal fashion.2 [Doc. 15]. This denial was without
prejudice for the Plaintiff to file a superseding amended complaint within 30
days, which he failed to do. [Id.]. Thus, the Court will proceed to conduct an
initial review of those claims asserted in the Complaint relating to the
adequacy of the medical care that the Plaintiff received at Mountain View
CI.3

2

This case was assigned to Judge Frank D. Whitney at that time.

While the Complaint refers to a number of “exhibits,” the documents that the Plaintiff
has attached to the Complaint are not labeled in accordance with the exhibits mentioned
in the Complaint, nor do the documents appear to correspond to the exhibits described in
the Complaint. [See Doc. 8 at 8 (Order and Recommendation of United States Magistrate
Judge noting that the Complaint refers to an exhibit that is not attached to the Complaint)].
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2

The Defendants presently before the Court are: Kenneth Lassiter, the
director of prisons for the North Carolina Department of Public Safety
(NCDPS); Tierra Catlett, the NCDPS assistant deputy director of health
services; Trisha Jordan, the NCDPS “Assistant of Health Services” [Doc. 2
at 5]; and the following Mountain View CI employees: Superintendent Mike
Slagle (“Superintendent Slagle”); Dexter Gibbs, assistant superintendent of
programs (“Assistant Superintendent Gibbs”); Kella Phillips, a unit manager
(“Unit Manager Phillips”); Donald Grindstaff, a correctional captain (“Captain
Grindstaff”); Robert Mask, a case manager (“Case Manager Mask”); FNU
Shepard, a warehouse sergeant (“Sergeant Shepard”); Joshua McKinney, a
clothes house sergeant (“Sergeant McKinney”); Norma Melton, a nurse
supervisor (“Nurse Melton”); FNU Slater, a psychiatrist (“Dr. Slater”); Jeffrey
Patane, a physician assistant (“PA Patane”); Brandon Barrier, a nurse
(“Nurse Barrier”); and J. Campbell, a nurse (“Nurse Campbell”).4

The Plaintiff’s Complaint is 75 pages long and contains over 200 numbered paragraphs
of allegations. Only the allegations that pertain to the 15 active Defendants are included
in this Order except insofar as additional allegations provide clarity or context. To the
extent that the Complaint refers to individuals who are not named as Defendants, these
allegations cannot proceed at this time. See Fed. R. Civ. P. 10(a) (requiring that the title
of the complaint name all parties); see, e.g., Londeree v. Crutchfield Corp., 68 F. Supp.2d
718 (W.D. Va. 1999). Further, allegations that are extraneous or unclear have been
omitted. For instance, the Plaintiff alleges that he “received new restrictions” in a
grievance response on March 9, 2018; however, the Court is unable to determine the
meaning of this vague allegation or how it relates to a claim against any Defendant. [Doc.
2 at 40].
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3

The Plaintiff alleges that he suffered a football injury in 1995 that
required surgery to place a metal rod in his femur. [Doc. 2 at 18]. According
to the Plaintiff, his symptoms included “severe pains, locking-up of the hip
joint (after periods of sitting or [lying] on metal bed/metal table/stool),
popping/stiffness and weakness (giving-out) of the hip joint, [and] throbbing,
swelling and numbness to the upper thigh area.” [Id. at 18-19]. Upon his
incarceration in 2005, the Plaintiff began receiving x-rays, over-the-counter
medication, and accommodations for severe pain that was assumed to be
associated with his prior surgery. Specifically, the Plaintiff alleges that a
NCDPS doctor approved various medical accommodations for him, including
the use of an electrical TENS unit, a lidocaine patch, and an air mattress.
[Id. at 35].
The Plaintiff alleges that he was transferred to Mountain View CI on
December 1, 2017. [Doc. 2 at 36]. At that time, the Plaintiff alleges, Nurse
Melton and PA Patane evaluated him and informed him that his pain was
psychological due to his lengthy prison sentence, and that his medical
accommodations would be discontinued. [Id.].
Over the next two years, the Plaintiff made repeated requests for his
medical accommodations to be reinstated, but such requests were refused.
The Plaintiff alleges that he submitted multiple sick calls and, while he did
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receive some treatment, his complaints of pain were often dismissed. [See
Doc. 2 at 41 (alleging that Nurse Melton stated that Plaintiff was “okay
because he wasn’t dying”); at 46 (alleging that Campbell refused to assess
him, stating that “Plaintiff’s pains won’t kill him and Plaintiff isn’t going to
die”)]. The Plaintiff wrote letters to Director Lassiter and Assistant Deputy
Director Catlett regarding his lack of treatment, but received no response.
[Id. at 42, 45]. The Plaintiff also filed a number of grievances, none of which
were successful.

[Id. at 42, 43].

The Plaintiff’s family and fiancée

communicated multiple times with Mountain View officials about the
Plaintiff’s medical needs, to no avail. [Id. at 43, 44, 46-47, 48]. At one point,
the Plaintiff’s mother spoke to Superintendent Slagle about the denial of
medical accommodations for her son. Slagle told her that Mountain View
“doesn’t allow the accommodations Mr. Moore was prescribed.” [Id. at 43].
The Plaintiff also made multiple requests for a transfer to a different prison
facility, all of which were denied. [Id.].
The

Plaintiff

seeks

declaratory

judgment,

injunctive

relief,

compensatory and punitive damages, and any additional relief the Court
deems to be appropriate. [Id. at 67].

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II.

STANDARD OF REVIEW
Because the 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 “(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); see 28 U.S.C. §
1915A (requiring frivolity review for prisoners’ civil actions seeking redress
from governmental entities, officers, or employees).
In its frivolity review, the Court must determine whether a 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). Furthermore, a pro se
complaint must be construed liberally. Haines v. Kerner, 404 U.S. 519, 520
(1972).

However, the liberal construction requirement will not permit a

district court to ignore 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).

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III.

DISCUSSION
A.

ADA and Rehabilitation Act Claims

The Plaintiff purports to assert claims based on a disability pursuant to
the ADA and the Rehabilitation Act. To state a claim under the ADA and the
Rehabilitation Act, a plaintiff must show that: (1) he has a disability; (2) he
was otherwise qualified to receive the benefits of a public service, program,
or activity; and (3) he was denied the benefits of such service, program, or
activity, or was otherwise discriminated against, on the basis of the disability.
See Nat’l Fed. of the Blind v. Lamone, 813 F.3d 494 (4th Cir. 2016); Seremeth
v. Bd. Of Cnty. Com’rs Fredrick Cnty., 673 F.3d 333, 336 n.1 (4th Cir. 2012)
(“Claims under the ADA’s Title II and the Rehabilitation Act can be combined
for analytical purposes because the analysis is ‘substantially the same.’”)
(quoting Doe v. Univ. of Md. Med. Sys. Corp., 50 F.3d 1261, 1265 n.9 (4th
Cir. 1995)).
The Plaintiff appears to allege that the Defendants denied his requests
for reasonable accommodations and, more generally, that the Defendants
provided inadequate medical care and accommodations for his hip and back
pain. Assuming that the Plaintiff’s conditions qualify as a disability, the
Plaintiff’s allegations fail to state an ADA or Rehabilitation Act claim because
he “fails to show he was treated in this manner because of his disability.”
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Miller v. Hinton, 288 F. App’x 901, 903 (4th Cir. 2008) (affirming summary
judgment for prison officials on prisoner’s ADA claim that the institution
denied him access to colostomy bags and catheters because he failed to
show that he was treated in this manner because of his disability) (emphasis
added). The ADA and the Rehabilitation Act are not violated “by a prison’s
simply failing to attend to the medical needs of its disabled prisoners….”
Bryant v. Madigan, 84 F.3d 246, 249 (7th Cir. 1996) (discussing ADA).
Therefore, Plaintiff’s ADA and Rehabilitation Act claims are dismissed for
failure to state a claim upon which relief can be granted.
B.

§ 1983 Claims

The Plaintiff also asserts claims under 42 U.S.C. § 1983 for deliberate
indifference to his medical needs. To state a claim under § 1983, a plaintiff
must allege that he was “deprived of a right secured by the Constitution or
laws of the United States, and that the alleged deprivation was committed
under color of state law.” Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40,
49-50 (1999).
1.

§ 1983 Claims against Medical Personnel

The Eighth Amendment prohibits the infliction of “cruel and unusual
punishments” and protects prisoner from the “unnecessary and wanton
infliction of pain.” Estelle v. Gamble, 429 U.S. 97, 103 (1976) (quoting Gregg
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v. Georgia, 428 U.S. 153, 173 (1976)). To state a claim for deliberate
indifference to a serious medical need, a plaintiff must show that he had
serious medical needs and that the defendant acted with deliberate
indifference to those needs. Heyer v. United States Bureau of Prisons, 849
F.3d 202, 210 (4th Cir. 2017) (citing 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.” Iko,
535 F.3d at 241 (internal quotation marks omitted). To constitute deliberate
indifference to a serious medical need, “the treatment [a prisoner receives]
must be so grossly incompetent, inadequate, or excessive to shock the
conscience or to be intolerable to fundamental fairness.” Miltier v. Beorn,
896 F.2d 848, 851 (4th Cir. 1990), overruled on other grounds by Farmer, 511
U.S. at 825. Allegations of inadvertent failure to provide adequate medical
care or of negligent diagnosis fail to establish the requisite state of mind.
Wilson v. Seiter, 501 U.S. 294, 297 (1991). Further, “mere ‘[d]isagreements
between an inmate and a physician over the inmate’s proper medical care’
are not actionable absent exceptional circumstances.” Scinto v. Stansberry,
841 F.3d 219, 225 (4th Cir. 2016) (quoting Wright v. Collins, 766 F.2d 841
(4th Cir. 1985)).
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Here, the Plaintiff asserts that Nurse Melton, Nurse Barrier, and Nurse
Campbell unreasonably withheld medical treatment and accommodations
and deliberately ignored his complaints of pain and requests for prescribed
pain medication and other treatment.

The Plaintiff has plausibly stated

deliberate indifference claims against these Defendants, and such claims will
be permitted to proceed.
As for the psychiatrist Dr. Slater (sometimes referred to as “Slager” in
the Complaint), the Plaintiff’s deliberate indifference allegations appear to
rest entirely on his claim that Dr. Slater told him that she was unable to treat
his medical concerns and that she noted that it appeared he was receiving
medical treatment. Such allegations are insufficient to support a deliberate
indifference claim, and thus the Plaintiff’s claim against Dr. Slater will be
dismissed.
The Plaintiff appears to allege that PA Patane was deliberately
indifferent for concluding that the Plaintiff’s pain was psychological,
discontinuing his medical accommodations upon the Plaintiff’s arrival at
MVCI, recommending that the Plaintiff see the psychiatrist, and ultimately
recommending that the Plaintiff be approved for pain medication. Even
assuming that Plaintiff’s reported pain qualifies as a serious medical need,
the Plaintiff has failed to state a deliberate indifference claim against PA
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Patane. He does not explain how Patane’s initial finding that his pain was
psychological was anything more than a misdiagnosis. The Plaintiff does not
even allege that such action rose to the level of negligence. Further, he has
failed to demonstrate that Patane had a deliberately indifferent state of mind.
Patane did not refuse care altogether in that he recommended that Plaintiff
seek psychological treatment and ultimately requested that Plaintiff be
approved for pain medication. In short, the Plaintiff’s disagreements with
Patane’s diagnosis and treatment recommendations fail to state a deliberate
indifference claim.

Accordingly, the Plaintiff’s § 1983 claim against PA

Patane will be dismissed.
2.

§ 1983 Claims against Non-Medical Personnel

To establish a deliberate indifference claim against non-medical
personnel, a prisoner must show that the non-medical personnel failed to
promptly provide needed medical treatment, deliberately interfered with
prison doctors’ treatment, or tacitly authorized or were indifferent to prison
physicians’ misconduct. Militer, 896 F.2d at 854. Moreover, because most
prison officials are not trained medical personnel, they are entitled to rely on
the opinions, judgment, and expertise of medical personnel concerning the
course of treatment that the medical personnel deem necessary and
appropriate for the prisoner. Id.
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Here, the Plaintiff asserts claims of deliberate indifference against
several Department of Prison Services employees in Raleigh, including
Defendants Lassiter, Catlett, and Jordan. The Plaintiff’s allegations at most
indicate that these Defendants were aware of the Plaintiff’s complaints about
his medical treatment and his requests for a transfer; however, the Complaint
fails to adequately allege that any of these Defendants tacitly authorized or
were deliberately indifferent to a pattern of inadequate medical care and
accommodations at Mountain View CI. Accordingly, the Plaintiff’s § 1983
claims against Defendants Lassiter, Catlett, and Jordan will be dismissed.
With respect to Superintendent Slagle, the Plaintiff has plausibly
alleged that Slagle tacitly authorized or was deliberately indifferent to a
pattern of inadequate medical care and accommodations at Mountain View.
Accordingly, the Plaintiff’s § 1983 claim against Superintendent Slagle will
be allowed to proceed.
The Plaintiff, however, has failed to plausibly allege that any of the
other non-medical personnel at Mountain View failed to promptly provide
needed medical treatment, deliberately interfered with prison doctors’
treatment, or tacitly authorized or were indifferent to prison physicians’
misconduct. To the extent that these Defendants denied the Plaintiff any of
his requested accommodations, they were entitled to rely on the instructions
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of medical personnel who advised (rightly or wrongly) that the Plaintiff was
not authorized to receive such items.

Further, the Plaintiff’s lengthy

allegations demonstrate that time and time again, these Defendants
responded to the Plaintiff’s complaints and relayed his requests to the
appropriate medical personnel.

These allegations simply fail to state a

plausible claim of tacit authorization or indifference to any alleged
misconduct by medical personnel. Accordingly, the Plaintiff’s deliberate
indifference claims against Defendants Gibbs, Phillips, Grindstaff, Mask,
Shepard, and McKinney are dismissed.
IV.

CONCLUSION
For the foregoing reasons, the Court concludes that the Complaint has

passed initial review on Plaintiff’s § 1983 claims against Defendants Slagle,
Melton, Barrier, and Campbell.

The Plaintiff’s remaining claims are

dismissed without prejudice.
This Court’s Local Rule 4.3 sets forth the procedure to waive service
of process for current or former employees of NCDPS in actions filed by
North Carolina State prisoners. In light of the Court’s determination that this
case passes initial review, the Court will order the Clerk of Court to
commence the procedure for waiver of service as set forth in Local Civil Rule

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4.3 for Defendants Slagle, Melton, Barrier, and Campbell, who are alleged
to be current or former employees of NCDPS.
IT IS, THEREFORE, ORDERED that the Complaint [Doc. 2] has
passed initial review with respect to the Plaintiff’s § 1983 claims against
Defendants Slagle, Melton, Barrier, and Campbell. The Plaintiff’s remaining
claims are DISMISSED WITHOUT PREJUDICE.
The Clerk of Court shall commence the procedure for waiver of service
as set forth in Local Civil Rule 4.3 for Defendants Slagle, Melton, Barrier, and
Campbell, who are alleged to be current or former employees of NCDPS.
IT IS FURTHER ORDERED that the Clerk shall mail the Plaintiff an
Opt-In/ Opt-Out form pursuant to the Standing Order in Misc. Case No. 3:19mc-00060-FDW.
IT IS SO ORDERED.
Signed: June 7, 2021

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