Ballard v. Haynes et al

Filing 10

ORDER denying 3 Motion for Preliminary Injunction; denying 3 Motion for Hearing. Plaintiffs Complaint survives initial review under 28 U.S.C. § 1915(e). IT IS FURTHER ORDERED THAT the U.S. Marshal shall effectuate service on Defendant Haynes using the summons form attached to the Complain. Signed by Chief Judge Frank D. Whitney on 2/12/18. (Pro se litigant served by US Mail.)(clc)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:17-cv-455-FDW
ROBERT S. BALLARD,

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Plaintiff,
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vs.
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G. HAYNES, 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 pursuant
to 28 U.S.C. § 1915(e) and § 1915A, (Doc. No. 1), and on Plaintiff’s Motion for Preliminary
Injunction, Motion for Hearing, (Doc. No. 3). On February 8, 2018, the Court entered an order
waiving the initial filing fee and directing monthly payments to be made from Plaintiff’s prison
account. (Doc. No. 9). Thus, Plaintiff is proceeding in forma pauperis.
I.

BACKGROUND

Pro se Plaintiff Robert S. Ballard is an inmate of the State of North Carolina, currently
incarcerated at Central Prison in Raleigh, North Carolina. Plaintiff filed this action on July 31,
2017, pursuant to 42 U.S.C. § 1983, naming the following persons as Defendants: (1) G. Haynes,
identified as a doctor at Lanesboro Correctional Institution; (2) Olushola J. Metiko, identified as
a doctor at Lanesboro; and (3) the NCDPS Utilization Review Board. On October 23, 2017,
Plaintiff filed a notice of voluntary dismissal as to Defendant Metiko. (Doc. No. 6).
Plaintiff purports to bring a claim against Defendant Haynes and the Utilization Review
Board for deliberate indifference to serious medical needs based on events that occurred while he
was incarcerated at Lanesboro Correctional Institution. Specifically, Plaintiff alleges that while
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he was at Lanesboro, Defendants refused to give Plaintiff certain pain medication that Dr. Price
had ordered for Plaintiff while Plaintiff was at UNC Hospital. Plaintiff alleges that he is
suffering from chronic pain as a result of the discontinuation of the pain medication. Plaintiff
seeks declaratory and injunctive relief, as well as compensatory and punitive 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.
“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
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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,
constitute a claim of medical malpractice”).
The Court finds that, assuming that Plaintiff’s allegations are true, and drawing all
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reasonable inferences in his favor, Plaintiff’s claim against Defendant Haynes for deliberate
indifference to serious medical needs is not clearly frivolous. Thus, this action survives initial
review as to Defendant Haynes. As to Defendant “Utilization Review Board,” the review board
is not a “person” subject to suit under Section 1983. See Diaz v. Lee, 104 Fed. Appx. 321, 322
n.* (4th Cir. 2004) (“We note that because the Utilization Review Board (“URB”) is not a
“person” under § 1983, it was not necessary for the district court to address the merits of Diaz’s
claims against it.”). Thus, Defendant Utilization Review Board is dismissed as a Defendant.
Next, as to Plaintiff’s motion for preliminary injunction and for a hearing on the motion,
Plaintiff alleges that since Defendant Haynes changed Plaintiff’s pain medication, he has
suffered severe pain. Plaintiff seeks an order from the Court requiring the doctors at Central
Prison to continue the pain medications as ordered by Dr. Price at UNC Hospital. To obtain a
preliminary injunction, a plaintiff must show: (1) that he is likely to succeed on the merits; (2)
that he is likely to suffer irreparable harm in the absence of preliminary relief; (3) that the
balance of equities tips in his favor; and (4) that an injunction is in the public interest. Winter v.
Natural Resources Defense Council, Inc., 555 U.S. 7, 20 (2008). Here, Plaintiff has not
demonstrated that he likely is to succeed on the merits, nor has he alleged facts necessary to
demonstrate that he likely would suffer irreparable harm if the motion is not granted. Therefore,
the Court will deny Plaintiff’s motion for a preliminary injunction.
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 Haynes. Defendant Utilization Review Board is dismissed as a Defendant.
IT IS, THEREFORE, ORDERED that:
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1.

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

2.

Plaintiff’s Motion for Preliminary Injunction, Motion for Hearing, (Doc. No. 3), is
DENIED.

3.

IT IS FURTHER ORDERED THAT the U.S. Marshal shall effectuate service on
Defendant Haynes using the summons form attached to the Complaint.

Signed: February 12, 2018

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