Leavitt v. NC Department of Public Safety et al
Filing
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ORDER DISMISSING CASE. Signed by Chief Judge Frank D. Whitney on 1/27/2017. (Pro se litigant served by US Mail.)(khm)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION
5:14-cv-00027-FDW
OWEN D. LEAVITT,
Plaintiff,
v.
NC DEP’T OF PUBLIC SAFETY, et al.,
Defendants.
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ORDER
THIS MATTER is before the Court on consideration of Plaintiff’s pro se complaint which
he filed pursuant to 42 U.S.C. § 1983.1
Plaintiff is a prisoner of the State of North Carolina who is presently confined in the
Alexander Correctional Institution. In his complaint, Plaintiff alleges that he is not receiving
adequate treatment for his diabetes, and other medical conditions, and he contends that his mail is
being tampered with; his efforts to access the courts have been frustrated; that he was placed in
restraints for seven hours on an unspecified date; and that he was subjected to excessive force on
March 14, 2011.2 (Doc. No. 1: Compl. at 5).
Pursuant to 28 U.S.C. § 1915(A)(a), “The court shall review . . . a complaint in a civil action in which a prisoner
seeks redress from a governmental entity or officer or employee of a governmental entity.” Following this initial
review the “court shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the
complaint—(1) is frivolous, malicious, or fails to state a claim upon which relief may be granted.” Id. § 1915A(b)(1).
In conducting this review, the 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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The Court finds that consideration of Plaintiff’s written grievances and the responses thereto by prison officials are
properly considered in determining whether Plaintiff’s complaint states a claim for relief. See Philips v. Pitt County
Mem. Hosp, 572 F.3d 176, 180 (4th Cir. 2009) (citing Blankenship v. Manchin, 471 F.3d 523, 526 n.1 (4th Cir.
2006)).
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A.
Medical Treatment
Claims under Section 1983 alleging a 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. Rainier, 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
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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”).
Plaintiff’s complaint as it pertains to his medical treatment will be dismissed because the
allegations are wholly conclusory and he fails to identify with any reasonable specificity how this
alleged treatment, or lack thereof, has adversely impacted his health. In sum, Plaintiff’s allegations
simply express disagreement with the course of treatment and the medical advice he has received.
B.
Mail and Access to the courts
Plaintiff’s vague contentions that one or more defendants have tampered with his mail or
inhibited his ability to send or receive mail will be dismissed as conclusory.
Likewise, Plaintiff’s claim that he is being denied access to the courts is without merit. To
be sure, there is no question that prisoners must have reasonable access to present claims in court.
See Bounds v. Smith, 430 U.S. 817, 824-25 (1977). In order to show a denial of access to the
courts, a prisoner must demonstrate an actual injury or that a defendant’s alleged conduct impeded
his right to access the courts. See Lewis v. Casey, 518 U.S. 343, 351-52 (1996).
In his complaint, Plaintiff does not contend that he is being denied all access to the courts,
and in fact, Plaintiff has demonstrated that he has more than liberal access to the courts, both in the
present case, and in other civil actions that he filed pro se while a prisoner of the State of North
Carolina. See Leavitt v. Thompson, 5:10-ct-03079-FL (E.D.N.C. July 2, 2010) (Western Division)
(§ 1983 complaint dismissed as frivolous); Leavitt v. Robert C. Lewis, et al., 5:10-ct-03075-D
(E.D.N.C. Jan. 25, 2011) (Western Division) (civil rights complaint dismissed for failure to
exhaust administrative remedies); Leavitt v. Joyner, 5:15-cv-00038-FDW (W.D.N.C. Nov. 20,
2015) (habeas petition dismissed as untimely), dismissed, 2017 U.S. App. LEXIS 209 (4th Cir.
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Jan. 5, 2017).
C.
Seven hour restraint and excessive force
An Eighth Amendment claim for excessive force or other deprivation demands a showing
that the prison official possessed a sufficiently culpable state of mind (subjective component) and
that he suffered a serious deprivation or injury (objective component). See Williams v. Benjamin,
77 F.3d 756, 761 (4th Cir. 1996).
Plaintiff alleges Defendant Sergeant Miller left him in restraints for seven or more hours;
however he does not identify when this allegedly happened nor does he fairly allege that he
suffered any particular injury or that Sergeant Miller acted with malice. (Compl. at 5). Finally,
Plaintiff alleges Defendant Officers Brock and Harrington subjected him to excessive force on
March 14, 2011, but again Plaintiff’s allegations are simply vague and fail to provide any
sufficient detail regarding any alleged injury or suspected malice. (Id.).
D.
Conclusion
In sum, among other things, the Federal Rules of Civil Procedure provide that in order to
state a claim for relief, a pleading must present “a short and plain statement of the grounds for the
court’s jurisdiction, and “a short and plain statement that the pleader is entitled to relief.” FED. R.
CIV. P. 8(a)(1), (2). “A claim has facial plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 556 (2007)). “The plausibility standard is not akin to a ‘probability requirement,’ but it
asks for more than a sheer possibility that a defendant has acted unlawfully.” “Threadbare recitals
of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id.
Based on the foregoing, the Court finds that Plaintiff’s complaint fails to present a claim
for relief and it will be dismissed. 28 U.S.C. § 1915A(b)(1).
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IT IS, THEREFORE, ORDERED that Plaintiff’s complaint is DISMISSED. (Doc. No.
1).
The Clerk is respectfully directed to close this civil case.
SO ORDERED.
Signed: January 27, 2017
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