Pendergrass v. NC Department of Public Safety et al

Filing 16

ORDER granting 8 Motion to Amend/Correct 1 Complaint ; denying 9 Motion to Appoint Counsel ; denying 12 Motion for Entry of Default; denying 14 Motion for Default Judgment; denying 15 Motion for Discovery; Fu rther Ordered that within twenty (20) days of entry of this order, Defendant Bradley shall either file an Answer or responsive pleading; FURTHER ORDERED that The U.S. Marshal shall attempt to re-serve Defendant Rushing in accordance with Rule 4 of th e Federal Rules of Civil Procedure; FURTHER ORDERED that the North Carolina Attorney General shall notify the Court within thirty (30) days whether it intends to investigate the allegations in the Complaint and/or file an Answer or responsive pleading on behalf of any of the named Defendants. Signed by District Judge Robert J. Conrad, Jr on 3/12/2014. (Pro se litigant served by US Mail.)(eef)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:13-cv-129-RJC
GUY T. PENDERGRASS,

)
)
Plaintiff,
)
)
vs.
)
)
)
N.C. DEPARTMENT OF PUBLIC
)
SAFETY, et al.,
)
)
Defendants.
)
____________________________________ )

ORDER

THIS MATTER comes before the Court on Plaintiff’s Motion to Amend/Correct
Complaint, (Doc. No. 8), Plaintiff’s Motion to Appoint Counsel, (Doc. No. 9), Plaintiff’s Motion
for Entry of Default, (Doc. No. 12), Plaintiff’s Motion for Default Judgment, (Doc. No. 14), and
Plaintiff’s Motion for Discovery, (Doc. No. 15).
I.

BACKGROUND
Pro se Plaintiff is a state court inmate currently incarcerated at Lanesboro Correctional

Institution (“Lanesboro”) in Polkton, North Carolina. Plaintiff filed this action on February 26,
2013, naming as Defendants the North Carolina Department of Public Safety, as well as eight
nurses at Lanesboro (Bradley, Cranford, Martinez, Medlin, Rizaldi, Rushin, Shope, and
Tarrantina) and Lanesboro doctor Sami Hassan. Plaintiff describes himself in the Complaint as a
“55-year-old brittle diabetic,” and he generally alleges that Defendants were deliberately
indifferent to Plaintiff’s serious medical need arising from a blister on his toe, which resulted in
the amputation of his toe in October 2012, and then in further medical complications. See (Doc.
1

No. 1 at 5). Plaintiff specifically alleges that Defendant Nurse Medlin should have known that
Plaintiff’s toe needed immediate medical attention in August of 2011, but that Nurse Medlin
ignored the problem, and that the delay resulted in Plaintiff’s toe requiring amputation. (Id. at 7).
Plaintiff further alleges that Defendant nurses Bradley, Cranford, Rizaldi, and Rushing “allowed
[his] wound to degenerate to the point of when the toe bone became exposed, which caused the
remainder of [his] toe to be amputated.” (Id.). Plaintiff further alleges that “[t]hrough the
actions of Nurse[] Medlin, or inaction or incompetence of Nurses Cranford, Rizaldi, Rushing,
and Bradley, I have to have a total of three (3) surgeries to stop the infection from spreading to
the rest of my foot.” (Id.).
On August 19, 2013, this Court entered an Order dismissing from the Complaint
Defendants Hassan, Martiniz, Shope, and Tarrantina, and ordering service on the remaining
Defendants. (Doc. No. 6). On October 8, 2013, summonses were returned as unexecuted for
Defendants Medlin, Rizaldi, and Cranford. (Doc. No. 10). The docket report indicates that
summonses were returned as executed for Defendants Bradley and Rushing on October 8, 2013,
and the Court entered an order stating that these Defendants must file an Answer or otherwise
respond by September 25, 2013. (Doc. No. 11). Neither Bradley nor Rushing has filed an
Answer or otherwise responded. Plaintiff has filed a motion for entry of default and a motion for
default judgment as to these two Defendants.
II.

DISCUSSION
A.

Plaintiff’s Motion to Amend

On September 9, 2013, Plaintiff filed a Motion to Amend/Correct Complaint. (Doc. No.
8). A plaintiff may amend the complaint once as a matter of course within 21 days after serving
2

the complaint, or within 21 days after service of a responsive pleading or 21 days after service of
a motion under Rule 12(b), (e), or (f), which is earlier. FED. R. CIV. P. 15(a)(1). Thus, Plaintiff
does not need the Court’s permission to amend the complaint. In any event, the motion to
amend will be granted, and Plaintiff may file an amended complaint if he wishes to do so. The
Court advises Plaintiff, however, that he may not revive a claim against a Defendant if the Court
has already dismissed the claim against that Defendant on initial review for failure to state a
claim.
B.

Plaintiff’s Motion to Appoint Counsel

Plaintiff seeks counsel on the grounds that he is poor, incarcerated, and is a layperson
without legal knowledge, and based on his contention that the issues in this case are complex,
and he will need assistance from counsel if this matter proceeds to trial. There is no absolute
right to the appointment of counsel in civil actions such as this one. Therefore, a plaintiff must
present “exceptional circumstances” in order to require the Court to seek the assistance of a
private attorney for a plaintiff who is unable to afford counsel. Miller v. Simmons, 814 F.2d
962, 966 (4th Cir. 1987). Notwithstanding Plaintiff’s contentions to the contrary, this case does
not present exceptional circumstances that justify appointment of counsel. Therefore, Plaintiff’s
motion to appoint counsel will be denied at this time. If the case proceeds to trial, the Court will
revisit the issue of appointment of counsel.
C.

Plaintiff’s Motion for Discovery

Plaintiff has filed a “motion for discovery,” seeking an order from the Court requiring the
North Carolina Department of Public Safety to furnish the current addresses for the individual
Defendants who have not been served. Plaintiff’s motion for discovery will be denied at this

3

time. The Clerk shall, however, send this order to the North Carolina Attorney General, and the
North Carolina Attorney General shall inform the Court whether it intends to investigate the
alleged conduct in the Complaint and whether it intends to voluntarily furnish the addresses for
various Defendants. Plaintiff’s motions for entry of default and for default judgment as to
Defendants Bradley and Rushing will be denied at this time.
The Court further notes that the summons for service on Defendant Rushing was returned
as executed, but the summons does not appear to have been personally served on Rushing.
Rather, the summons form indicates that service was made on “Ops Sgt. D. Mullis for night
shift/supv. in medical.” (Doc. No. 11 at 1). It is not clear, however, that “D. Mullis” is an agent
authorized by appointment of law to receive service of process. See FED. R. CIV. P. 4(e). The
Court will, therefore, order the U.S. Marshal to attempt to re-serve Defendant Rushing in
accordance with Rule 4 of the Federal Rules of Civil Procedure.
III.

CONCLUSION
IT IS, THEREFORE, ORDERED that:
1.

Plaintiff’s Motion to Amend/Correct Complaint, (Doc. No. 8), is GRANTED;

2.

Plaintiff’s Motion to Appoint Counsel (Doc. No. 9), is DENIED.

3.

Plaintiff’s Motion for Entry of Default, (Doc. No. 12), and Motion for Default
Judgment, (Doc. No. 14), are DENIED.

4.

Plaintiff’s Motion for Discovery, (Doc. No. 15), is DENIED.

5.

Within twenty (20) days of entry of this Order, Defendant Bradley shall either file
an Answer or responsive pleading.

6.

The U.S. Marshal shall attempt to re-serve Defendant Rushing in accordance with
4

Rule 4 of the Federal Rules of Civil Procedure.
7.

The Clerk is instructed to mail this Order to the North Carolina Attorney General.
The North Carolina Attorney General shall notify the Court within thirty days
whether it intends to investigate the allegations in the Complaint and/or file an
Answer or responsive pleading on behalf of any of the named Defendants.

5