Tillery v. Kalinski et al

Filing 10

ORDER that Plaintiff's claim of deliberate indifference against Defendant Kalinski survives initial review; the remaining claims are dismissed. Plaintiff shall have 14 days in which to file a superseding Amended Complaint. It is further ordered the Clerk of Court shall commence the procedure for waiver of service for Defendant Kalinski. Signed by Chief Judge Frank D. Whitney on 8/14/2018. (Pro se litigant served by US Mail.)(nvc)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION
5:17-cv-194-FDW
GREGORY D. TILLERY,

)
)
Plaintiff,
)
)
vs.
)
)
FNU KALINSKI, et al.,
)
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Defendants.
)
__________________________________________)

ORDER

THIS MATTER is before the Court on initial review of pro se Plaintiff’s Complaint, (Doc.
No. 1). Plaintiff is proceeding in forma pauperis. (Doc. No. 6).
I.

BACKGROUND

Pro se Plaintiff filed a civil rights suit pursuant to 42 U.S.C. § 1983, addressing incidents
that allegedly occurred at the Alexander Correctional Institution.1 He names as Defendants the
following Alexander C.I. employees: Dr. Kalinski, Correctional Officer Lieutenant Johnson,
Correctional Officer Bryant, and Nurse John Doe.
Liberally construing the Complaint and accepting the allegations as true, Plaintiff suffers
from sickle cell disease. He went through a sickle cell crisis at the end of February/ beginning of
March, 2016. Plaintiff declared an emergency and was taken to medical where his vital signs were
checked. The nurse was unfamiliar with sickle cell so she wrote a message for the other nurse to
handle Plaintiff’s issue. Plaintiff told the nurse that fluids and Tylenol did not work and that
something needed to be done because he was in pain. The nurse told Plaintiff to check back with

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Plaintiff filed the Complaint while he was incarcerated at the Marion C.I., and he currently resides at the
Mountain View C.I.

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the nurse at medication call.
When Plaintiff went to the medication call, the nurse at the window said she had been
informed of his condition but that there was nothing she could do because his vital signs were
good. Plaintiff explained that sickle cell is not determined by vital signs. The nurse again said there
was nothing she could do.
Plaintiff continued to complaint to the sergeant and he was sent back to medical where they
refused to give him the correct medication again. He was sent back to his cell where his condition
worsened because he had not been treated.
During the beginning and middle of March, 2016, Plaintiff’s condition became so bad that
he could not walk because of severe pain. He declared a medical emergency but was again told
there was nothing they could do.
Dr. Kalinski came to Plaintiff’s cell and told him that nothing was wrong with him and
provided no treatment.
Plaintiff declared numerous medical emergencies but was still given no medical attention
for his pain.
Lieutenant Johnson put Plaintiff in the “hole” segregation because, he said, it would be
easier for staff to watch over him. (Doc. No. 1 at 5). Plaintiff was in segregation for six days where
Officer Bryant would not give him any Tylenol for pain. He was released from segregation and
was still in severe pain.
After complaining for several weeks, Plaintiff was finally called to medical for law work
where they discovered that something was “really wrong” and had him rushed to the hospital where
he received a blood transfusion. (Doc. No. 1 at 5). A doctor discovered that Plaintiff had internal
bleeding and said that Plaintiff could have died if he did not go to the hospital when he did. The
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bleeding was caused by the prison’s denial of medical attention for his disease and problems with
staff.
Dr. Kalinski refused to refill Plaintiff’s prescription when he ran out of medicine. She did
not schedule a meeting with Plaintiff and he went without his medication for a month.
He seeks declaratory judgment, injunctive relief, compensatory and punitive damages, the
costs of this suit, any other relief the Court deems just, proper, and equitable, and a jury trial.
II.

STANDARD OF REVIEW

Because Plaintiff is a prisoner proceeding in forma pauperis, the Court must review the
Complaint to determine whether it is subject to dismissal on the grounds that it is “(i) frivolous or
malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief
against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). In its frivolity
review, a 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). A complaint should not be dismissed for failure
to state a claim “unless ‘after accepting all well-pleaded allegations in the plaintiff’s complaint as
true and drawing all reasonable factual inferences from those facts in the plaintiff’s favor, it
appears certain that the plaintiff cannot prove any set of facts in support of his claim entitling him
to relief.’” Veney v. Wyche, 293 F.3d 726, 730 (4th Cir. 2002) (quoting Edwards v. City of
Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999)).
A pro se complaint must be construed liberally. Haines v. Kerner, 404 U.S. 519, 520
(1972); see also Smith v. Smith, 589 F.3d 736, 738 (4th Cir. 2009) (“Liberal construction of the
pleadings is particularly appropriate where … there is a pro se complaint raising civil rights
issues.”). However, the liberal construction requirement will not permit a district court to ignore
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a clear failure to allege facts in his complaint which set forth a claim that is cognizable under
federal law. Weller v. Dep’t of Soc. Servs., 901 F.2d 387 (4th Cir. 1990). A pro se complaint must
still contain sufficient facts “to raise a right to relief above the speculative level” and “state a claim
to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007);
see Ashcroft v. Iqbal, 556 U.S. 662 (2009) (the Twombly plausibility standard applies to all federal
civil complaints including those filed under § 1983). This “plausibility standard requires a plaintiff
to demonstrate more than a sheer possibility that a defendant has acted unlawfully.” Francis v.
Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (internal quotation marks omitted). He must
articulate facts that, when accepted as true, demonstrate he has stated a claim entitling him to relief.
Id.
III.
(1)

DISCUSSION

Parties
(a)

Individuals Not Named as Defendants

The Federal Rules of Civil Procedure provide that, “[i]n the complaint the title of the action
shall include the names of all the parties.” Fed. R. Civ. P. 10(a); see Myles v. United States, 416
F.3d 551 (7th Cir. 2005) (“to make someone a party the plaintiff must specify him in the caption
and arrange for service of process.”). Although pro se litigants are entitled to have their pleadings
liberally construed, Haines, 404 U.S. at 520, “[d]istrict judges have no obligation to act as counsel
or paralegal to pro se litigants,” Pliler v. Ford, 542 U.S. 225 (2004).
The body of the Complaint contains allegations against individuals who are not named as
defendants in the caption as required by Rule 10(a). This failure renders Plaintiff’s allegations
against them nullities. See, e.g., Londeree v. Crutchfield Corp., 68 F.Supp.2d 718 (W.D. Va. Sept.
29, 1999) (granting motion to dismiss for individuals who were not named as defendants in the
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compliant but who were served). Therefore, to the extent that Plaintiff intended to assert a claim
against any of these individuals, it is dismissed without prejudice.
(b)

John Doe

John Doe suits are permissible only against “real, but unidentified, defendants.” Schiff v.
Kennedy, 691 F.2d 196, 197 (4th Cir. 1982). The designation of a John Doe defendant “is generally
not favored in federal courts; it is appropriate only when the identity of the alleged defendant is
not known at the time the complaint is filed and the plaintiff is likely to be able to identify the
defendant after further discovery.” Njoku v. Unknown Special Unit Staff, 217 F.3d 840, 840 (4th
Cir. 2000). “[I]f it does not appear that the true identity of an unnamed party can be discovered
through discovery or through intervention by the court, the court could dismiss the action without
prejudice.” Schiff, 691 F.2d at 197-98 (because it appeared that John Doe was an actual person, it
was error for the district court to conclude that, under appropriate circumstances, this type of case
would not be permitted).
Plaintiff identifies the John Doe Defendant as a nurse at the Alexander C.I. This
information is insufficient to identify John Doe at this time, however, dismissal is without
prejudice for Plaintiff to move to amend the Complaint should he be able to identify John Doe
during discovery.
(2)

Deliberate Indifference
“[T]he treatment a prisoner receives in prison and the conditions under which he is

confined are subject to scrutiny under the Eighth Amendment,” Helling v. McKinney, 509 U.S.
25, 31 (1993). To state a prima facie case of deliberate indifference to a serious medical need, a
plaintiff must show that he had serious medical needs and that the defendant acted with deliberate
indifference to those needs. Heyer v. United States Bureau of Prisons, 849 F.3d 202, 210 (4th Cir.
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2017) (citing 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.” Iko, 535 F.3d at 241
(internal quotation marks omitted). To constitute deliberate indifferent to a serious medical need,
“the treatment [a prisoner receives] must be so grossly incompetent, inadequate, or excessive to
shock the conscience or to be intolerable to fundamental fairness.” Miltier v. Beorn, 896 F.2d 848,
851 (4th Cir. 1990), overruled on other grounds by Farmer, 511 U.S. at 825. However, mere
negligence or malpractice does not violate the Eighth Amendment. Miltier, 896 F.2d at 852.
Assuming arguendo that sickle cell disease constitutes a serious medical need, Plaintiff has
adequately alleged that Dr. Kalinski knew about his painful and potentially dangerous condition
and nevertheless repeatedly delayed and denied treatment. Plaintiff’s medical deliberate
indifference claim with therefore be permitted to proceed as to Dr. Kalinski. Plaintiff will be
permitted to amend to add the John Doe nurse’s name if he is able to learn that individual’s identity
during discovery.
However, Plaintiff has failed to state a deliberate indifference claim against the Defendant
correctional officers. In response to Plaintiff’s complaints of pain, Lieutenant Johnson placed
Plaintiff in segregation so that he could be monitored more easily by staff. Plaintiff was also
repeatedly sent to medical, and Dr. Kalinski was summoned, when Plaintiff complained of pain
and declared medical emergencies. With regards to Officer Bryant’s alleged failure to give
Plaintiff Tylenol, Bryant’s actions were consistent with medical personnel’s insistence that nothing
was wrong with Plaintiff and that nothing could be done for him. See Arnett v. Webster, 658 F.3d
742, 755 (7th Cir. 2011) (“Non-medical defendants … can rely on the expertise of medical
personnel.”). Moreover, this allegation is self-defeating because it contradicts Plaintiff’s allegation
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that Tylenol was ineffective to treat his condition. See (Doc. No. 1 at 3) (“I informed the nurse that
fluids and tylenol did not work….”). No deliberate indifference is evidence under these
circumstances.
Therefore, Plaintiff’s deliberate indifference claim will be permitted to proceed against
Defendant Kalinski and will be dismissed without prejudice with regards to the John Doe nurse,
Officer Bryant, and Lieutenant Johnson.
IV.

CONCLUSION

For the reasons stated herein, the Complaint is sufficient to proceed against Defendant
Kalinski for deliberate indifference to a serious medical need. The remaining claims are dismissed
without prejudice. Plaintiff may file a superseding Amended Complaint within 14 days in which
he may attempt to add parties and cure the deficiencies identified in this Order.
IT IS, THEREFORE, ORDERED that:
1. Plaintiff’s claim of deliberate indifference against Defendant Kalinski survives initial
review under 28 U.S.C. § 1915.
2. The remaining claims are dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).
3. Plaintiff shall have 14 days in which to file a superseding Amended Complaint in
accordance with this Order and all applicable rules and procedures. If Plaintiff fails to
file an Amend Complaint within the time limit set by the Court, this action will proceed
on the original Complaint, (Doc. No. 1).
4. The Clerk is directed to mail a copy of the Complaint, (Doc. No. 1), and a new Section
1983 complaint form to Plaintiff.
5. IT IS FURTHER ORDERED THAT the Clerk of Court shall commence the
procedure for waiver of service as set forth in Local Rule 4.3 for Defendant Kalinski
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who is a current or former employee of NC DPS.

Signed: August 14, 2018

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