McClary v. Searles

Filing 10

ORDERED,Plaintiffs Complaint survives initial review under 28 U.S.C. § 191(e) as to Defendant, FURTHER ORDERED, Clerk is directed to mail a summons form to Plaintiff for Plaintiff to fill out and return for service of process on Defendant. Once the Court receives the summons form, the Clerk shall then direct the U.S. Marshal to effectuate service on Defendant. 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-77-FDW
RONALD MCCLARY,

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Plaintiff,
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vs.
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ANTHONY SEARLES,
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Defendant.
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___________________________________ )

ORDER

THIS MATTER is before the Court on initial review of Plaintiff’s Complaint pursuant
to 28 U.S.C. § 1915(e) and § 1915A, (Doc. No. 1).1 On February 23, 2015, the Court entered an
order waiving the initial filing fee and directing monthly payments to be made from Plaintiff’s
prison account. (Doc. No. 5). Thus, Plaintiff is proceeding in forma pauperis.
I.

BACKGROUND

Pro se Plaintiff Ronald McClary is an inmate of the State of North Carolina, currently
incarcerated at Lanesboro Correctional Institution in Polkton, North Carolina. Plaintiff filed this
action on February 18, 2015, pursuant to 42 U.S.C. § 1983, naming as the sole Defendant
Anthony Searles, identified as a medical doctor at Lanesboro. (Doc. No. 1 at 3). Plaintiff

Plaintiff has purported to file two “Amended Complaints” since filing this action, but the
“Amended Complaints” merely add factual allegations to the original Complaint and they are not
submitted on a Section 1983 form with the requisite allegations naming the parties, jurisdictional
grounds for suit, etc. See (Doc. Nos. 7; 9). A plaintiff may not amend a complaint in piecemeal
fashion by merely submitting additional factual allegations. If Plaintiff wishes to amend his
Complaint, he must resubmit an Amended Complaint that includes all of his original allegations,
plus any additional allegations he wishes to bring. In other words, the Amended Complaint must
be submitted on a Section 1983 form like the original Complaint, with the entire form again
filled out. The Amended Complaint will then supersede the original Complaint and render the
original Complaint moot.
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purports to bring a claim against Defendant for deliberate indifference to serious medical needs.
(Id. at 5). Specifically, Plaintiff alleges that for 1.5 years before filing this action he has had
blood in his urine, urine leakage, pain when he urinates, and an enlarged and painful prostate.
(Id.). Plaintiff alleges that Defendant Searles has refused to treat Plaintiff at all, including failing
to checking for cancer or giving Plaintiff any medication for his prostate. (Id.). Plaintiff alleges
that he has submitted numerous sick calls but that Dr. Searles refuses to treat Plaintiff. Plaintiff
notes that he filed a grievance over the lack of treatment and that the prison responded in
December 2014 that Plaintiff would be scheduled to see a urologist. See (Id.; see also Doc. No.
1-1). Plaintiff states that is “a lie” and that he has, in fact, gone over a year without any
treatment, and that he has still not been treated. (Doc. No. 1 at 5).
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).

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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.
“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.
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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,
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 against Defendant for deliberate indifference to
serious medical needs is not clearly frivolous. Thus, this action survives initial review.
IV.

CONCLUSION

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

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

2.

IT IS FURTHER ORDERED THAT, the Clerk is directed to mail a summons
form to Plaintiff for Plaintiff to fill out and return for service of process on
Defendant. Once the Court receives the summons form, the Clerk shall then direct
the U.S. Marshal to effectuate service on Defendant.

Signed: May 12, 2015

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