Corbett v. Perry et al

Filing 91

ORDER denying 67 Motion to Dismiss ; granting 78 Motion to Withdraw as Attorney: Attorney Joseph Finarelli terminated; granting in part and denying in part 81 Motion to Stay: The request for a stay is denied but the request for an extension of time to respond to Plaintiffs discovery requests is granted for 30 days from the entry of this Order. Signed by District Judge Max O. Cogburn, Jr on 3/24/2020. (ams)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:18-cv-103-MOC
STANLEY CORBETT, JR.,

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)
Plaintiff,
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vs.
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FRANK PERRY, et al.,
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Defendants.
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__________________________________________)

ORDER

THIS MATTER comes before the Court on Defendant Dr. Gregory Haynes’ Motion to
Dismiss, (Doc. No. 67). Several motions are also pending.
I.

BACKGROUND

Incarcerated pro se Plaintiff’s Complaint passed initial review on claims against several
Defendants pursuant to 42 U.S.C. § 1983 and North Carolina law addressing incidents that
allegedly occurred at the Lanesboro Correctional Institution. Defendant Haynes has filed a Motion
to Dismiss arguing that Plaintiff has failed to state a claim against him for medical negligence
under North Carolina law or a claim under § 1983 for deliberate indifference to a serious medical
need.
(1)

Complaint (Doc. No. 1)
Plaintiff alleges in his verified Complaint that he suffers from chronic hives, also known

as urticaria. Plaintiff broke out with hives while incarcerated at Warren C.I. in March 2015. He
was transferred to Lanesboro C.I. on April 19, 2015, where he suffered from inadequate medical
care from April 2015, to May 12, 2016.
On April 10, 2015, Plaintiff went to see an outside dermatologist at the University of North

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Carolina (“UNC”), who recommended several medications for Plaintiff’s hive condition. The
dermatologist also recommended that Plaintiff receive a follow-up examination in five weeks if
the medications did not help.
Plaintiff submitted a sick call request and declared a medical emergency on April 19, 2015,
because he had hives on his body that were causing swelling to his arms and legs, severe pain, and
itching. Plaintiff wrote to Defendant Smith regarding his medical issues on April 23, 2015. On
April 29, 2015, Plaintiff was moved from segregation to medical for observation because Plaintiff
was on hunger strike to protest his lack of medical treatment. On May 3, 2015, Plaintiff submitted
a grievance because he was not receiving the medications recommended by the UNC
dermatologist, his sick calls were not being addressed, and his feet and legs had been going numb
from the hives/swelling and were bleeding. On May 7, 2015, Plaintiff wrote to Defendant Mitchell
about his sick calls and grievances not being processed. Plaintiff submitted a sick call request about
the hives on his body, which were causing severe pain, swelling, and itching, on May 11, 2015.
Defendant Vanscatovan denied Plaintiff’s request for a medical emergency.
Plaintiff saw a doctor on May 15, 2015, about his hives who prescribed Benadryl and
another medication. On May 21, 2015, after five weeks of continuous outbreaks of hives,
Defendant Haynes prescribed Plaintiff one of the medications recommended by the UNC
dermatologist. However, the prescription was for the medication was once per day even though
the UNC dermatologist recommended it twice per day. Plaintiff did not receive the proper
medications recommended by the dermatologist. On May 22, 2015, Defendant Toutu denied
Plaintiff’s hive medication, telling him that he did not get any medication for hives. On May 23,
2015, Plaintiff received Tretinoin cream and clindamycin for bumps/acne. On May 27, 2015,
Defendant Toutu denied Plaintiff’s hive medication again, saying he did not have any medication

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for hives. On May 31, 2015, Plaintiff submitted a sick call request about hives, itching, pain,
bleeding, and numbness. On June 1, and 6, 2015, Plaintiff submitted sick call requests and sent a
copy to Defendants Smith and Mitchell. On June 7, 2015, Plaintiff declared a medical emergency
due to itchy hives all over his body. Defendant Vanscotovan, the same nurse who denied Plaintiff’s
request for a medical emergency on May 11, gave Plaintiff Benadryl and calamine lotion. On June
11, 2015, Nurse Bradley denied Plaintiff’s noon medication, telling him he did not have any noon
medication. That same day, Defendant Rushin denied Plaintiff’s evening and nighttime
medications, telling Plaintiff that he did not get any medication for hives. On June 12, 2015,
Defendant Patch denied Plaintiff’s evening and nighttime medications, claiming that Plaintiff did
not have any medication for hives. Plaintiff submitted sick calls, sent letters to Defendants Perry,
Smith and Mitchell, and submitted a grievance about his medical issues between April 19 and June
24, 2015, but treatment was denied and/or delayed.
Plaintiff went to Charlotte Dermatology on June 24, 2015, more than two months after his
UNC visit. It was recommended that Plaintiff see an allergy clinic. Plaintiff submitted numerous
sick call requests between June 24, 2015, and March 4, 2016, about his medical conditions but
they were ignored, delayed, or made to appear as though Plaintiff saw medical staff or refused sick
call appointments. During this time period, Plaintiff declared numerous medical emergencies and
requested to see an allergy clinic numerous times, and his requests for hive medication were
constantly denied and delayed by Lanesboro C.I. medical staff. On July 1, 2015, Defendant Patch
denied Plaintiff’s nighttime medication, telling him that he did not have any medication. On July
14, 2015, Defendant Vanscotovan denied Plaintiff’s sick call, saying that Plaintiff refused his
appointment. On August 3, 2015, Defendant Haynes prescribed Periactin for Plaintiff’s hives. On
August 16, 2015, Plaintiff declared a medical emergency and Nurse Hill gave him Benadryl and

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some cream for hives.
On August 18, 2015, Plaintiff’s blood was drawn for an allergy test. He had been requesting
this test for months but it was delayed by medical staff and Defendant Haynes, which contributed
to the continuous hive outbreaks. The test results showed that Plaintiff is allergic to milk and
peanuts. On September 1, 2015, Plaintiff submitted a sick call request regarding hives all over his
body and asked to see the allergy clinic. On September 5, 2015, Plaintiff declared a medical
emergency due to hives on his legs and Nurse Ratcliff gave him Benadryl.
On September 7, 2015, Plaintiff saw Defendant Haynes about hives on his thigh and arms,
and requested to be scheduled to see the allergy clinic specialist. On September 8, 2015, Plaintiff
declared a medical emergency about hives on his body and Nurse Crump gave him a tube of
hydrocerin cream. On September 24, 2015, Plaintiff submitted a sick call request and a medical
emergency due to hives and a swollen right leg/knee. Nurse Perkins gave him Benadryl.
On September 28, 2015, Plaintiff saw Defendant Haynes and Plaintiff again asked to be
scheduled to see the allergy clinic. On October 21, 2015, Plaintiff broke out in hives all over his
body. He declared a medical emergency but Defendant Boss denied this request. On October 22,
2015, Plaintiff continued to break out in hives all over his body. He declared another medical
emergency which Defendant Boss denied again.
On November 9, 2015, Plaintiff saw Dr. Southerland about the hives on his body. She
prescribed medication but it was not ordered until approximately two months later. On November
18, 2015, Defendant Boss denied Plaintiff’s evening and nighttime medications for hives, claiming
that Plaintiff did not have any medication. On November 20, 2015, Plaintiff submitted a sick call
request concerning his continuous outbreaks of hives and requesting the medications that Dr.
Southerland had prescribed, and to see the allergy clinic. On December 2, 2015, Plaintiff declared

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a medical emergency due to hives on his arms, legs, and hands, and for swelling in his right hand
and wrist. Nurse Wilkinson gave him Benadryl. On December 27, 2015, Plaintiff submitted a sick
call request about hives on the top and back of his head and asked to see the allergy clinic. On
December 28, 2015, Plaintiff declared a medical emergency about the itchy, painful hives on the
back of his head. Nurse Morgan gave him Benadryl.
On January 1, 2016, Plaintiff saw Dr. Southerland about his hives. She prescribed steroids,
Benadryl, and another medication. She told Plaintiff that she had prescribed it in November, 2015.
She looked on the computer and saw that the medication was never ordered.
On January 1, 2016, Plaintiff spoke to Lanesboro C.I. Assistant Superintendent Beaver
about a grievance complaining about inadequate medical treatment. Beaver told him that the
medical staff was backlogged by 500 sick call requests and that medical staff from other regions
come to Lanesboro to help. Plaintiff alleges that this backlog resulted in sick call requests being
unanswered, thrown away, marked as refused, or marked as appointments when no appointment
occurred.
On January 13, 2016, Plaintiff finally went to a sick call appointment. Defendant Totou
denied Plaintiff’s morning Benadryl and noon medications that same day. On February 24, 2016,
Plaintiff submitted a sick call request about hives all over his body and requested to see the allergy
clinic.
It took over eight months for medical staff at Lanesboro C.I. to schedule an appointment
for him to see an allergy clinic on March 4, 2016. Dr. Collins prescribes several medications for
hives. Plaintiff was transferred to Alexander C.I. on March 30, 2016. He did not receive the
medications that Dr. Collins prescribed until May 12, 2016.
Only one or two of Plaintiff’s numerous sick call requests while he was in Lanesboro C.I.’s

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Anson Unit between April 19, 2015, to March 30, 2016, were processed according to NC DPS
Medical/ Health Policy & Procedure. Plaintiff had to declare multiple medical emergencies and go
on hunger strikes just to see medical staff. Almost every time Plaintiff saw a doctor at Lanesboro
C.I., he was on a hunger strike. The delay in medical treatment led to pain, itching, bleeding,
swelling, suffering, anxiety, and mental and emotional distress.
Defendants Mitchell, John Doe, Haynes, and Hopkins, are responsible for medical care and
for arranging for specialized medical care outside of the prison. Defendants Perry and Smith are
responsible for medical care concerning all prisoners within NC DPS Division of Adult
Corrections. Defendants have not implemented treatment policies or procedures by authorizing
an effective sick call system, a system for following up outside medical professionals’
recommendations, or a system for scheduling outside medical appointments in a timely manner.
Defendants have failed to provide medical treatment for Plaintiff’s condition that are consistent
with current medical community standards.
Plaintiff alleges that Defendants were deliberately indifferent to his serious medical needs.
Defendants Perry, John Doe, Hopkins, Smith, and Mitchell’s failure to train their staff, failing to
take action, and delaying treatment despite their first-hand knowledge of Plaintiff’s medical
condition, medications, and treatment. Defendant Haynes’ failure to follow recommendations
from the dermatologists at UNC and Charlotte Dermatology. Defendants Hopkins, Vanscotovan,
Totou, Patch, Rushin, Boss, and John Doe denied and ignored Plaintiff’s sick call requests,
grievances, and medical emergencies, and denied him his prescribed medications. Defendants
Mitchell, John Doe, Haynes, and Hopkins failed to schedule a timely appointment for Plaintiff to
see the allergy clinic. Defendants Perry, Smith, Mitchell, John Doe, Vanscotovan, and Hopkins
failed to establish an effective sick call system, failing to establish a sufficient system for following

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outside medical recommendations, and failing to schedule outside medical appointments in a
timely manner. Defendants Vanscotovan and Boss failed to provide adequate medical care by
denying his medical emergencies about chronic urticaria. Defendants Totou, Patch, Rushin, Boss,
Mitchell, John Doe, and Hopkins failed to provide Plaintiff with the prescribed medications.
Defendants John Doe, Haynes, and Hopkins also failed to inform Plaintiff that the consistent
swelling beneath his skin was angioderma which, along with chronic urticaria, can affect his lungs,
muscles, and gastrointestinal tract.
Plaintiff alleges that Defendants Mitchell, John Doe, Haynes, Hopkins, Vanscotovan,
Totou, Patch, Rushin, and Boss all agreed on an illegal course of conduct that they knew violated
Plaintiff’s constitutional rights in violation of 42 U.S.C. § 1985.
Plaintiff alleges that Defendants Perry, Smith, Mitchell, John Does, and Hopkins failed to
properly train medical staff who they oversee which is negligence under the North Carolina Tort
Claims Act.
He seeks declaratory judgment, injunctive relief, compensatory and punitive damages, the
costs of this suit, any other relief the Court deems just and equitable, and a jury trial.
(2)

Motion to Dismiss (Doc. No. 67)
Defendant Haynes seeks dismissal of the claims against him with prejudice. He argues that

Plaintiff has failed to state a claim for medical malpractice under North Carolina law because he
has not complied with the pleading requirements set forth in North Carolina Rule of Civil
Procedure 9(j). Plaintiff has failed to circumvent the Rule 9(j) certification by showing res ipsa
loquitur. Therefore, Plaintiff has failed to state a North Carolina claim for medical negligence.
Defendant Haynes further argues that Plaintiff has failed to state a claim for deliberate
indifference to a serious medical need under § 1983. Plaintiff’s allegations, which primarily focus

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on the failures of the prison medical system as a whole and delays in treatment, do not show that
Defendant Haynes’ treatment was grossly incompetent, inadequate, so excessive as to shock the
conscience, or intolerable to fundamental fairness. While Plaintiff argues that it is Dr. Haynes’
fault that his appointment with the Allergy Clinic was not scheduled until March 2016, Haynes
was not responsible for the delay, Plaintiff’s claims do not involve a life-threatening illness or
require emergency medical attention, Haynes did prescribe the recommended medication which
falls far short of deliberate indifference, and Plaintiff’s criticisms of Haynes did not lead to any
alleged injury.
(3)

Plaintiff’s Response (Doc. No. 71)
The Court issued an Order on December 13, 2019 pursuant to Roseboro v. Garrison, 528

F.2d 309 (4th Cir. 1975), instructing Plaintiff regarding his right to respond to Defendant Haynes’
Motion and cautioning Petitioner that failure to do so may result in the relief that Defendant Haynes
seeks. (Doc. No. 69).
Plaintiff filed an unverified Response in which he alleges that he finally received allergy
tests on August 18, 2015 that showed he is allergic to peanuts and milk. His diet was not changed
until September 2015. Defendant Haynes delayed the allergy tests which contributed to his
“continuous outbreak of hives &/or injuries.” (Doc. No. 69 at 7). Plaintiff’s hives continued to
appear after his diet was changed in September 2015 “which was when Defendant Haynes
recommended that it be modified to exclude peanuts & milk.” (Doc. No. 69 at 7).
Plaintiff states that he “never alleged that Defendant Haynes was negligent.” (Doc. No. 69
at 8).
Plaintiff notes that, at the time his Response was filed, discovery was not complete. He
appears to suggest that dismissal should not be granted until he has the opportunity to discover and

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review the pertinent documents.
With regards to his § 1983 claims, Plaintiff argues that the UNC, Charlotte Dermatology,
and Carolina Asthma & Allergy Clinic doctors prove that his medical condition is sufficiently
serious to support a deliberate indifference claim. Defendant Haynes knew of and ignored the
excessive risk to Plaintiff’s health and safety in that he “knew that by not properly treating
Plaintiff’s serious medical needs that it would result to him experiencing further significant injury”
and that Haynes “denial and delay of medical treatment caused Plaintiff to receive more pain &
suffering.” (Doc. No. 71 at 12). Plaintiff notes that: he did not receive Allegra until 1 ½ months
after the UNC dermatologist recommended it; Haynes waited 2 ½ months before sending Plaintiff
to see a dermatologist at Charlotte Dermatology even though the UNC dermatologist
recommended a repeat visit within five weeks if the Allegra did not work; by failing to change
Plaintiff’s diet until September 2015 whereas an allergy test conducted on August 18, 2015
revealed that he is allergic to peanuts and milk; and Haynes waited more than eight months after a
dermatologist recommended that Plaintiff see an allergist, on June 24, 2015, before sending
Plaintiff to see an allergist on March 4, 2016. Plaintiff argues that Haynes’ “failure to follow the
dermatologist recommendation, as well as schedule a timely appointment” reveals deliberate
indifference. (Doc. No. 71 at 13). He claims that Haynes further violated his constitutional rights
by failing to inform Plaintiff of angiodema, the swelling Plaintiff experienced beneath his skin that
is associated with hives, and chronic urticaria, can affect his lungs, muscles, and gastrointestinal
tract.
(4)

Defendant’s Reply (Doc. No. 74)
Contrary to Plaintiff’s assertions, the allegations that Defendant Haynes delayed medical

treatment and provided incorrect medication dosages are instances of alleged medical negligence

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governed by N.C. Gen. Stat. § 90.21.11, et seq. Therefore, Plaintiff was required to comply with
the pleading requirements set forth in Rule 9(j) and Plaintiff’s failure to do so requires dismissal.
This should completely extinguish Plaintiff’s allegations of medical negligence against Defendant
Haynes. However, Plaintiff also alleges that Defendant Haynes’ failure to provide the medications
recommended by the UNC dermatologist and failure to schedule a timely appointment for Plaintiff
to be seen at the Allergy Clinic was deliberate indifference to a serious medical need. However,
these are nothing more than alleged medical negligence claims that should be dismissed.
To the extent that Plaintiff’s allegations are read to be deliberate indifference claims,
Plaintiff has failed to state a claim for relief. Plaintiff’s claims alleging failure to treat chronic
hives, an illness that is not life-threatening and did not require emergency medical attention, does
not shock the conscience and did not demonstrate deliberate indifference to Plaintiff’s medical
needs.
(5)

Plaintiff’s Surreply (Doc. No. 75)
Plaintiff argues that Defendant Haynes was a medical supervisor at Lanesboro so the claims

against him are not limited to the four encounters between Haynes and Plaintiff. Plaintiff’s
negligence claims apply to other defendants, not Haynes, so Rule 9(j) does not apply to this case.
Chronic urticaria (hives) “is definitely a life-threatening illness.” (Doc. No. 75 at 2). Further,
discovery is not complete so Defendant Haynes’ Motion should be denied as a matter of law.
II.

STANDARD OF REVIEW

A motion to dismiss under Rule 12(b)(6) determines only whether a claim is stated; “it
does not resolve contests surrounding the facts, the merits of a claim, or the applicability of
defenses,” Republican Party v. Martin, 980 F.2d 943, 952 (4th Cir.1992). A claim is stated if the
complaint contains “sufficient factual matter, accepted as true, to ‘state a claim to relief that is

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plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). In evaluating whether a claim is stated, “[the] court accepts
all well-pled facts as true and construes these facts in the light most favorable to the plaintiff,” but
does not consider “legal conclusions, elements of a cause of action, and bare assertions devoid of
further factual enhancement.” Nemet Chevrolet, Ltd. v. Consumeraffairs.com. Inc., 591 F.3d 250,
255 (4th Cir. 2009). Nor does a court accept as true “unwarranted inferences, unreasonable
conclusions, or arguments.” Wahi v. Charleston Area Med. Ctr., Inc., 562 F.3d 599, 615 n. 26 (4th
Cir. 2009).
III.
(1)

DISCUSSION

Deliberate Indifference
“[T]he Eighth Amendment’s prohibition against ‘cruel and unusual punishments’ [extends]

to the treatment of prisoners by prison officials,” Hill v. Crum, 727 F.3d 312, 317 (4th Cir. 2013),
and “forbids the unnecessary and wanton infliction of pain,” id. (internal quotation marks omitted).
The Supreme Court has explained that “deliberate indifference to serious medical needs of
prisoners constitutes the unnecessary and wanton infliction of pain proscribed by the Eighth
Amendment.” Estelle v. Gamble, 429 U.S. 97, 104 (1976) (citation and internal quotation marks
omitted).
The deliberate indifference standard has two components. The plaintiff must show that he
had serious medical needs, which is an objective inquiry, and that the defendant acted with
deliberate indifference to those needs, which is a subjective inquiry. See 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.” Id. at 241 (internal quotation marks omitted). A mere delay or

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interference with treatment can be sufficient to constitute a violation of the Eighth Amendment.
Smith v. Smith, 589 F.3d 736, 739 (4th Cir. 2009). However, 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).
Plaintiff alleges that he suffers from chronic hives, a painful and dangerous condition for
which he has received medical treatment on numerous occasions. He further alleges that Defendant
Haynes delayed treatment and denied him the medications and treatments recommended by other
doctors. Plaintiff has adequately stated a claim for deliberate indifference to a serious medical need
and Defendant Hayne’s Motion to Dismiss for failure to state a deliberate indifference claim will
be denied.
(2)

Medical Negligence
The Complaint alleges delays and incorrect treatment for Plaintiff’s chronic hives.

Defendant Haynes argues in the Motion to Dismiss that Plaintiff’s claim is one for medical
malpractice and that it is barred because Plaintiff failed to Comply with Rule 9(j) of the North
Carolina Rules of Civil Procedure. Plaintiff states in his Response to the Motion to Dismiss that
he “never alleged that Defendant Haynes was negligent.” (Doc. No. 69 at 8).
As Plaintiff states that he has not attempted to state a medical malpractice claim under
North Carolina law and, Defendant Haynes’ Motion to Dismiss addressing such a claim is denied
as moot.

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IV.
(1)

PENDING MOTIONS

Motion to Withdraw
Defense counsel Joseph Finarelli has filed a Motion to Withdraw as Attorney. (Doc. No.

78). Mr. Finarelli has shown good cause to support his withdrawal and he further states the
withdrawal will not prejudice either party or delay this case. See LCvR 83.1(f). The Motion will
be granted.
(2)

Motion to Stay Discovery
Defendant Haynes’ Motion to Stay Plaintiff’s Discovery Requests, (Doc. No. 81), in which

he asks the Court to stay this case until the Court has ruled on Defendant Haynes’ Motion to
Dismiss and, alternatively, for an extension of time in which to respond to Plaintiff’s discovery
requests until 30 days after the Court rules on Defendant Haynes’ Motion to Stay.1
Plaintiff has filed a Response, (Doc. No. 84), arguing that a stay of discovery should be
denied because it would be a burden on Plaintiff and NCPLS counsel to have some discovery
process continue while other discovery process involving the same claims is stayed, discovery
could lead to evidence relevant and necessary for Plaintiff to counter Haynes’ arguments in his
dispositive motion, and Haynes has not shown why he is likely to prevail on his Motion to Dismiss.
Defendant Haynes filed a Reply, (Doc. No. 86), arguing that he is no longer employed at
Lanesboro and lacks access to much of the information requested in discovery, and attempting to
respond to discovery requests without this information would be futile. Further, Plaintiff has
violated the Case Management Plan, (Doc. No. 51), by propounding discovery in excess of the
discovery limits.
Defendant Haynes’ request for a stay will be denied. However, his request for an extension

Also pending are Defendant Haynes’ Motions for Protective Order, (Doc. Nos. 82, 85, 87), and Plaintiff’s
Motion for Leave to Serve Additional Interrogatories, (Doc. No. 89), that will be addressed in separate orders.
1

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of time to respond to Plaintiff’s discovery requests is granted for 30 days from the entry of this
Order.
V.

CONCLUSION

In sum, for the reasons stated herein, Defendant Haynes’ Motion to Dismiss is denied,
Defense counsel’s Motion to Withdraw is granted, and Defendant Haynes’ Motion to Stay
Plaintiff’s Discovery Requests is granted in part and denied in part.
IT IS, THEREFORE, ORDERED that:
1. Defendant Haynes’ Motion to Dismiss, (Doc. No. 67), is DENIED as to the claim of
deliberate indifference to a serious medical need and is DENIED as moot as to the
claim of medical negligence.
2. Defense counsel Joseph Finarelli’s Motion to Withdraw as Attorney, (Doc. No. 78), is
GRANTED.
3. Defendant Haynes’ Motion to Stay Plaintiff’s Discovery Requests, (Doc. No. 81), is
GRANTED in part and DENIED in part. The request for a stay is denied but the
request for an extension of time to respond to Plaintiff’s discovery requests is granted
for 30 days from the entry of this Order.

Signed: March 24, 2020

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