Beasley v. Lutes et al

Filing 9

ORDER DISMISSING CASE without prejudice to plaintiff refile after paying the full filing fee, FURTHER ORDERED that Plaintiffs Motion to Appoint Counsel 8 is DENIED as moot. Signed by Chief Judge Frank D. Whitney on 05/12/2015. (Pro se litigant served by US Mail.)(jlk)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:15-cv-67-FDW
MARION BEASLEY, JR.,

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Plaintiff,
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vs.
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FNU LUTES, et al.,
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Defendants.
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_________________________________________ )

ORDER

THIS MATTER is before the Court on initial review of Plaintiff’s Complaint, filed under
42 U.S.C. § 1983, (Doc. No. 1). See 28 U.S.C. §§ 1915A and 1915(e).
I.

BACKGROUND

Pro se Plaintiff Marion Beasley is a North Carolina prisoner incarcerated at Lanesboro
Correctional Institution in Polkton, North Carolina. Plaintiff filed this action on February 11,
2015, naming the following individuals as Defendants: FNU Lutes, identified as the President of
Union Hospital in Monroe, North Carolina; (2) FNU Lilly, identified as the President of Charlotte
Medical Center in Charlotte, North Carolina; and (3) FNU Lee, identified as a surgeon at Carolinas
Center for Oral and Facial Surgery in Charlotte, North Carolina. (Doc. No. 1 at 3). Plaintiff alleges
that on August 3, 2014, he suffered a fractured left eye socket and brain tumor.1 (Id. at 4). Plaintiff

1

In a prior Section 1983 action filed in this Court, which was subsequently dismissed pursuant
to 28 U.S.C. § 1915(g), Plaintiff alleged that on August 2, 2014, another inmate at Lanesboro
assaulted him, resulting in a fractured left eye socket and a hematoma on his brain. See Beasley
v. North Carolina Dep’t of Pub. Safety, 3:14cv580 (W.D.N.C. Dec. 2, 2014).
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alleges that on that same day, Defendant Lutes and his “medical team” refused to perform surgery
on Plaintiff and transported him to Charlotte Medical Center. (Id.). Plaintiff alleges that, at
Charlotte Medical Center, Defendant Lilly’s “medical team” diagnosed Plaintiff with severe head
trauma. (Id.). Plaintiff alleges that he was released from Charlotte Medical Center on August 4,
2014, and Defendant Lilly refused to send Plaintiff to a specialist. (Id.). Plaintiff alleges that he
had a scheduled appointment on August 15, 2014, at Carolinas Center for Oral and Facial Surgery
for severe head trauma, but that Defendant Lee refused to treat Plaintiff or to perform surgery on
him. (Id.). Plaintiff alleges that on December 14, 2014, he had an appointment with Dr. George
Blakeney at UNC Chapel Hill Hospital. Plaintiff alleges that Dr. Blakeney told Plaintiff that “had
the Plaintiff made it to [Blakeney] in time [Blakeney] would have did [sic] surgery to stop Plaintiff
suffering.” (Id. at 5). Plaintiff contends that Defendants were deliberately indifferent to Plaintiff’s
serious medical needs because they refused to treat Plaintiff for his injuries and because they
should have transported Plaintiff to Dr. Blakeney for oral surgery. (Id.). Plaintiff alleges that he
still suffers from pain as a result of Defendants’ “medical malpractice and deliberate indifference,”
and he seeks $60 million in damages from Defendants. (Id. at 4).
II.

DISCUSSION

The provisions of 28 U.S.C. § 1915 are mandatory and define the degree and scope of this
Court’s initial review of Plaintiff’s Complaint. See Crawford-El v. Britton, 523 U.S. 574, 596
(1998) (discussing the Prison Litigation Reform Act (“PLRA”)). Section 1915(g) of the PLRA
provides:
In no event shall a prisoner bring a civil action or appeal a judgment in a civil action
or proceeding under this section if the prisoner has, on 3 or more prior occasions,
while incarcerated or detained in any facility, brought an action or appeal in a court
of the United States that was dismissed on the grounds that it is frivolous, malicious,
or fails to state a claim upon which relief may be granted, unless the prisoner is
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under imminent danger of serious physical injury.
28 U.S.C. § 1915(g).
Plaintiff’s complaint will be dismissed because he has filed three pro se § 1983 complaints,
Plaintiff was allowed to proceed in forma pauperis, and each of the three complaints was dismissed
as being frivolous, malicious or for failure to state a claim under the provisions of the PLRA.2 See
Beasley, Jr. v. R. Michael Bruce, et al., No. 1:08CV174-NCT-RAE (M.D.N.C. Apr. 17, 2008);
Beasley, Jr. v. Bryant et al., No. 1:08CV172-NCT-RAE (M.D.N.C. May 13, 2008); Beasley, Jr. v.
Justice I. Beverly Lake, Jr., et al., No. 1:08CV169-NCT-RAE (M.D.N.C. May 14, 2008). Plaintiff
is, therefore, subject to 28 U.S.C. § 1915(g)’s bar to filing civil actions in forma pauperis unless
he can show that he is under imminent danger of serious physical injury. Plaintiff fails to
demonstrate in his Complaint in this action that he is under imminent danger of serious physical
injury as required by § 1915(g).3 Therefore, this action will be dismissed without prejudice
because Plaintiff has not paid the full filing fee.4

2

Each of these cases is final, as Plaintiff did not appeal from the order of dismissal and the time
for doing so has long since expired.
3 The mere allegation that Plaintiff still suffers from pain as a result of Defendants’ alleged
deliberate indifference does not constitute a showing that Plaintiff is under imminent danger of
serious physical injury within the meaning of § 1915(g). Accord Towner v. Rao, No. 12-cv6633-FPG, 2014 WL 4745920 (W.D.N.Y. Sept. 23, 2014) (citing cases and stating that “courts
considering allegations of discomfort or the lack of pain medication have found them to not
constitute an imminent danger”). Moreover, in this action, Plaintiff does not allege that any of
his current medical providers are refusing to treat him for pain caused by his prior injuries.
Rather, he is merely seeking to recover against medical providers who allegedly refused to treat
Plaintiff when he was initially injured in August 2014.
4 The Court notes that, even if Plaintiff pays the filing fee and refiles this action, the action will
be subject to dismissal as to any of the named Defendants to the extent that the hospitals or
health care facilities named in the Complaint are private entities. See Philips v. Pitt Cnty. Mem’l
Hosp., 572 F.3d 176, 181-82 (4th Cir. 2009).
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III.

CONCLUSION

For the reasons stated herein, the Court will dismiss this action without prejudice to
Plaintiff to refile after paying the full filing fee.
IT IS, THEREFORE, ORDERED that:
1.

For the reasons stated herein, the Court finds that Plaintiff has failed to show that
he is under imminent risk of serious physical injury and he must therefore pay the
full filing fee before he may present this § 1983 complaint in federal court. This
action is, therefore, dismissed without prejudice.

2.

Plaintiff’s Motion to Appoint Counsel, (Doc. No. 8), is DENIED as moot.

3.

The Clerk is respectfully instructed to terminate this action.

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