Green v. Dye et al

Filing 12

ORDER denying 2 MOTION to Appoint Counsel and granting 9 MOTION for Leave to Amend Complaint. The Clerk shall send Plaintiff summons forms to fill out so that service may be made on Defendants. Once the Court receives the summons forms, the U.S. Marshal shall effectuate service on Defendants. Eric Dye terminated pursuant to order. Signed by Chief Judge Frank D. Whitney on 9/29/2017. (Pro se litigant served by US Mail.)(nvc)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION
5:17-cv-103-FDW
ERIC L. GREEN,

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Plaintiff,
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vs.
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ERIC DYE, 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), on Plaintiff’s Motion to Appoint Counsel,
(Doc. No. 2), and on Plaintiff’s Motion for Leave to File Amended Complaint, (Doc. No. 9). On
July 10, 2017, the Court entered an order waiving the initial filing fee and directing monthly
payments to be made from Plaintiff’s prison account. (Doc. No. 8). Thus, Plaintiff is proceeding
in forma pauperis.
I.

BACKGROUND

Pro se Plaintiff Eric Green is a North Carolina prisoner incarcerated at Alexander
Correctional Institution in Taylorsville, North Carolina. Plaintiff filed this action on June 15,
2017, pursuant to 42 U.S.C. § 1983, naming thirteen Defendants who all are alleged to have been
employed at Alexander at all relevant times. Plaintiff purports to bring an Eighth Amendment
claim against Defendants for deliberate indifference to serious medical needs based on
Defendants’ refusal to provide him with medical care for his serious medical needs related to his
dental problems, including denying him a soft food diet that he requires because he has had all of

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his teeth pulled.1 Plaintiff seeks damages and injunctive and declaratory relief.
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
detainee’s serious need for medical care.” Young v. City of Mt. Ranier, 238 F.3d 567, 575-76

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Plaintiff also states that he is bringing a state law claim for negligence.
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(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
reasonable inferences in his favor, Plaintiff’s claim for deliberate indifference to serious medical
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needs is not clearly frivolous. Thus, this action survives initial review as to all Defendants
except for Defendant Eric Dye, Assistant Warden at Alexander. As to Defendant Dye, Plaintiff
has not alleged any personal participation by Defendant Dye in the factual allegations in
Plaintiff’s Complaint. Individual liability under Section 1983 must be based on personal
participation in the constitutional violation. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658,
694 (1978) (stating that under Section 1983, liability is personal in nature, and the doctrine of
respondeat superior does not apply). Defendant Dye cannot be held liable for the alleged acts of
other persons based merely on his supervisory position.2 Thus, the action will not go forward as
to Defendant Dye in his individual capacity.
Next, in support of his motion to appoint counsel, Plaintiff states, among other things,
that he is incarcerated, he has limited knowledge of the law, the issues involved in this case are
complex, and he has attempted to obtain an attorney to represent him to no avail. There is no
absolute right to the appointment of counsel in civil actions such as this one. Therefore, a
plaintiff must present “exceptional circumstances” in order to require the Court to seek the
assistance of a private attorney for a plaintiff who is unable to afford counsel. Miller v.
Simmons, 814 F.2d 962, 966 (4th Cir. 1987). Notwithstanding Plaintiff’s contentions to the
contrary, this case does not present exceptional circumstances that justify appointment of
counsel. Therefore, Plaintiff’s motion to appoint counsel will be denied.

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A supervisor may be liable for acts of his subordinates if (1) the supervisor is actually or
constructively aware of pervasive, unreasonable risk of harm from a specified source, (2) the
official is deliberately indifferent to that risk, and (3) there exists an affirmative causal link
between the supervisor’s inaction and the constitutional injury. Shaw v. Stroud, 13 F.3d 791,
799 (4th Cir. 1994). Plaintiff does not allege any facts to support a finding of supervisor liability
based on these three elements.
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Finally, Plaintiff has filed a “Motion for Leave to File Amended Complaint,” in which he
states that he would like to add one additional defendant after conducting discovery to determine
that defendant’s name. This Court will grant the motion for leave to file to the extent that, once
some or all of the other named Defendants are served and have responded, the Court will allow
Plaintiff to conduct limited discovery to learn the name of the additional John Doe Defendant.
IV.

CONCLUSION

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

Plaintiff’s Complaint survives initial review under 28 U.S.C. § 1915(e), as to all
Defendants except for Defendant Eric Dye.

2.

Plaintiff’s Motion to Appoint Counsel, (Doc. No. 2), is DENIED.

3.

Plaintiff’s Motion for Leave to File Amended Complaint, (Doc. No. 9), is
GRANTED in accordance with the terms of this Court’s order.

4.

The Clerk shall send Plaintiff summons forms to fill out so that service may be
made on Defendants. Once the Court receives the summons forms, the U.S.
Marshal shall effectuate service on Defendants in accordance with Rule 4 of the
Federal Rules of Civil Procedure.
Signed: September 29, 2017

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