Opinion
5:21-CT-03320-M
10-05-2022
CORY EUGENE FRANCE, Plaintiff, v. SECRETARY OF PRISONS, et al., Defendants.
ORDER
RICHARD E. MYERS II CHIEF, DISTRICT JUDGE
On October 21, 2021, Cory Eugene France (a.k.a. Clorey Eugene France) (“plaintiff'), a state inmate proceeding pro se, filed a complaint under 42 U.S.C. § 1983. See Compl. [D.E. 1], On April 29, 2022, the court denied plaintiffs motion for summary judgment as premature, conducted initial review, dismissed without prejudice claims arising at Alexander C.I., Avery-Mitchell C.I., and Lanesboro C.I., dismissed without prejudice the Secretary of Prisons as a defendant, and directed plaintiff to file a particularized complaint. Order [D.E. 5]. Plaintiff timely filed an amended complaint, Am. Compl. [D.E. 6], and a motion seeking joinder of defendants, Mot. [D.E. 7]. The court now conducts its initial review of the amended complaint.
Legal Standard:
When a prisoner seeks relief in a civil action from a governmental entity or officer, a court must dismiss the complaint if it is “frivolous, malicious, or fails to state a claim upon which relief may be granted.” 28U.S.C. § 1915A(a), (b)(1). A frivolous case “lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). Legally frivolous claims are “based on an indisputably meritless legal theory and include claims of infringement of a legal “based on an indisputably meritless legal theory and include claims of infringement of a legal interest which clearly does not exist.” Adams v. Rice, 40 F.3d 72, 75 (4th Cir. 1994) (quotations omitted). Factually frivolous claims lack an “arguable basis” in fact. Neitzke, 490 U.S. at 325.
The standard used to evaluate the sufficiency of a pleading is flexible, and a pro se complaint, “however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam) (quotation omitted). A pro se plaintiffs pleading, however, must contain “more than labels and conclusions,” see Bell Atl. Corp, v. Twombly, 550 U.S. 544, 555 (2007); Giarratano v. Johnson, 521 F.3d 298, 304 n.5 (4th Cir. 2008), and the court need not accept as true any legal conclusions or unwarranted factual inferences, see Ashcroft v. Iqbal, 556 U.S. 662, 677-83 (2009).
“To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988); Philips v. Pitt Cnty. Mem'l Hosp., 572 F.3d 176, 180 (4th Cir. 2009). Further, a plaintiff also “must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution.” Iqbal, 556 U.S. at 676; see Monell v. Dep't of Soc. Servs., 436 U.S. 658, 691-92 (1978); Wright v. Collins, 766 F.2d 841, 850 (4th Cir. 1985).
Plaintiffs Filings:
In his amended complaint, plaintiff names as defendants: Pender C.I. “Medical Doctor/Registered Nurse Practitioner [sic]” Diane Browning (“Browning”); Medical Doctor (“M.D.”) Donald Micklos (“Micklos”); North Carolina Department of Public Safety (“DPS”) M.D. Joseph Maides (“Maides”); DPS M.D. Marta Kalinski (“Kalinski”); DPS M.D. Larry Jones Cody Wingler (“Wingler”); DPS Nurse Practitioner Marilyn Gamewell (“Gamewell”); and DPS Commissioner Todd Ishee (“Ishee”). Am. Compl. [D.E. 6] at 3-6. Plaintiff generally alleges violations if his Eighth Amendment rights between 2012 and 2021 at Alexander C.I., Pender C.I., and Avery-Mitchell C.I. See id. at 7. Plaintiff specifically alleges that, from around August 1, 2011, to January 1,2014, he placed numerous sick calls at Alexander C.I. about a basketball injury to his left knee that, plaintiff opines, presented “classic signs of a tom meniscus.” Id. Plaintiff asserts that providers Kalinski, Jones, and Gunn denied his request for magnetic resonance imaging (“MRI”) but instead ordered an x-ray and provided a knee brace and Tylenol for pain. Id. Plaintiff notes that his knee brace originally was ordered circa January 2012. Id. at 9.
Plaintiff next alleges he filed at least 10 sick-call requests at Pender C.I. from circa March 15, 2016, to January 31, 2018. Id. at 7. Plaintiffs sick-call requests sought an MRI and a replacement knee brace, and explained that he had pain and swelling in his left knee, his pain medication was not effective, and that two sessions of physical therapy did not improve his condition. Id. at 7-8. Plaintiff further alleges that, despite these requests, providers Browning, Maides, and Micklos treated plaintiff with Tylenol and x-rays “while ignoring trauma to plaintiffs knee and symptoms [sic].” Id. Plaintiff elsewhere lists various Pender C.I. sick-call requests and appointment dates between August 2016 and October 2017. Id. at 8-9.
Plaintiff further alleges that: he transferred back to Alexander C.I. circa May 1, 2018; he placed numerous sick call requests for an MRI, noting that physical therapy and prescribed pain medications had been ineffective; but providers Kalinski, Erlacher, Wingler, and Gamewell again treated plaintiff with x-rays, Tylenol, physical therapy, and a knee brace. Id. at 8. Plaintiff further asserts that, a June 1, 2020, x-ray revealed “spacing” at the meniscus and an MRI, ordered on August 4, 2020, revealed cartilage damage, and tendonitis requiring surgery. Id. Plaintiff received knee surgery on February 16, 2021. Id.
Plaintiff contends he “has suffered a wanton and unnecessary infliction of pain and was denied adequate medical care for more than ten (10) years through a deliberate indifference to his serious medical need, as well as known, intentional delay of diagnosis and treatment [sic].” RL at 9. Plaintiff notes that he limps, his knee is painful, his right hip has become damaged due to his uneven gait, and that “it was not until after [his] surgery on February 16,2021, that [he] became aware, or could have been aware of, the cause and nature of his complaint and injury.” Id.
Plaintiff next asserts that: he has written numerous grievances about “the failure to adequately diagnose and treat” his left knee; Ishee, as the DPS Commissioner, reviews and is empowered to correct errors in DPS Grievance Resolution Board responses; but that Ishee and his predecessors “failed to correct those violations.” Id. at 10.
For relief, plaintiff seeks compensatory and punitive damages. Id. at 11.
In his self-styled “motion for joinder of defendants/claims,” plaintiff asserts that a substantial part of the events giving rise to his claims arose in Pender County, a county within the Eastern District of North Carolina, and that one or more defendant may be within this judicial district. Mot. [D.E. 7] at 1-2 (citing Fed.R.Civ.P. 18, 20(a)(2)). In conclusion, plaintiff asks the court to either find that he may proceed with all his claims against all defendants in this court or to transfer claims to the appropriate judicial district. Id. at 2-3.
Discussion:
First, because plaintiff does not re-raise any Central Prison or Pasquotank C.I. claims, compare Compl. [D.E. 1] at 6, with Am. Compl. [D.E. 6] at 6, the court deems them abandoned.
Next, although plaintiff reiterates claims arising at Alexander C.L, and alludes to claims arising at Avery-Mitchell C.L, the court's prior order dismissed these claims without prejudice to allow plaintiff to raise them in the appropriate judicial district. Order [D.E. 5]. Contrary to plaintiffs assertions, his alleged constitutionally inadequate medical care from different providers at these out-of-district prisons over a decade's span does not amount to the same “transaction or occurrence.” See Fed.R.Civ.P. 18,20(a)(2); George v. Smith, 507 F.3d 605,607 (7th Cir. 2007).
To the extent plaintiff moves to transfer his Eighth Amendment claims to the appropriate judicial district, see Mot. [D.E. 7] at 2-3, such a transfer is not in the interest of justice because, as discussed below, plaintiff presently fails to state a cognizable § 1983 claim as to any defendant. See 28 U.S.C. §§ 1406(a), 1631; Dragenicev. Ridge, 389 F.3d 92, 97-98 (4th Cir. 2007); see also Phillips V. Seiter, 173 F.3d 609, 610-11 (7th Cir. 1999) (noting that, “a court is authorized to consider the consequences of a transfer” by “tak[ing] a peek at the merits” to avoid “rais[ing] false hopes and wast[ing] judicial resources by transferring a case that is clearly doomed”).
The Eighth Amendment “prohibits the infliction of ‘cruel and unusual punishments' on those convicted of crimes.” Wilson v. Seiter, 501 U.S. 294, 296-97 (1991) (internal citation omitted). “In order to make out a prima facie case that prison conditions violate the Eighth Amendment, a plaintiff must show both (1) a serious deprivation of a basic human need; and (2) deliberate indifference to prison conditions on the part of prison officials.” Strickler v. Waters, 989 F.2d 1375, 1379 (4th Cir. 1993) (quotation omitted). The first prong requires that “the deprivation of [a] basic human need was objectively sufficiently serious.” Id. (quotation and emphasis omitted). The second prong requires a showing that “the officials acted with a sufficiently culpable state of mind.” Id. (quotation and emphasis omitted); see Farmer v. Brennan, 511 U.S. 825, 835 (1994) (“[D]eliberate indifference entails something more than mere negligence [but] is satisfied by something less than acts or omissions for the very purpose of causing harm or with knowledge that harm will result.”).
“Deliberate indifference” to a prisoner's “serious medical needs” violates the Eighth Amendment. Estelle v. Gamble, 429 U.S. 97, 104 (1976); see also Iko v. Shreve, 535 F.3d 225, 241 (4th Cir. 2008). “In order to establish a claim of deliberate indifference to a medical need, the need must be both apparent and serious, and the denial must be both deliberate and without legitimate penological objective.” Grayson v. Peed, 195 F.3d 692, 695 (4th Cir. 1999); see Miltier v. Beom, 896 F.2d 848, 851 (4th Cir. 1990) (“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.”), overruled in part on other grounds by Farmer, 511 U.S. at 837. Nevertheless, a prison official is not liable “unless the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” Farmer, 511 U.S. at 837; see Jackson v. Lightsey, 775 F.3d 170, 178 (4th Cir. 2014) (finding a defendant must have “actual subjective knowledge of both the inmate's serious medical condition and the excessive risk posed by [the defendant's] action or inaction.”); Shakka v. Smith, 71 F.3d 162, 166 (4th Cir. 1995) (requiring that the prison official knew of and disregarded an “objectively serious condition, medical need, or risk of harm.”). Beyond such actual knowledge, the official “must also have recognized that his actions were insufficient to mitigate the risk of harm to the inmate.” Iko, 535 F.3d at 241 (quotation marks and citation omitted). A prisoner, however, is not entitled to choose his course of treatment. See Russell v. Sheffer, 528 F.2d 318, 318-19 (4th Cir. 1975) (per curiam). Disagreements over forms of treatment concern medical judgments, not the Eighth Amendment, id., and mere negligence in diagnosis or treatment does not state a constitutional claim, see Estelle, 429 U.S. at 106 (“Medical malpractice does not become a constitutional violation merely because the victim is a prisoner.”); Grayson, 195 F.3d at 695 (“Deliberate indifference is a very high standard-a showing of mere negligence will not meet it.”).
Presuming, without deciding, that plaintiffs left knee injury was objectively serious, the defendant medical providers' purported provision of x-rays, Tylenol, a knee brace, and physical therapy do not shock the conscience. Cf. Miltier, 896 F.2d at 851. The medical provider defendants' alleged failure to earlier provide an MRI or surgical intervention amounts to plaintiffs mere disagreement with his course of medical treatment or, at worst, mistaken medical judgment or negligent medical care. See Farmer, 511 U.S. at 835; Estelle, 429 U.S. at 107 (“the question whether an x-ray or additional diagnostic techniques or forms of treatment is indicated is a classic example of medical judgment. A medical decision not to order an x-ray, or like measures, does not represent cruel and unusual punishment.”); Grayson, 195 F.3d at 695 Russell, 528 F.2d at 318-19.
Thus, because plaintiff fails to plausibly allege that the medical provider defendants knew of and disregarded his serious medical needs, or otherwise acted with the requisite culpable state of mind, he fails to satisfy the subjective component of a viable deliberate indifference claim. See Iqbal. 556 U.S. at 678 (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.”); Twombly, 550 U.S. at 555 (“Factual allegations must be enough to raise a right to relief above the speculative level”); Farmer, 511 U.S. at 837; Jackson, 775 F.3d at 178; De'lonta v. Johnson, 708 F.3d 520, 525 (4th Cir. 2013) (surviving initial review requires a § 1983 plaintiff to plausibly allege both “(1) that the deprivation of a basic human need was objectively sufficiently serious, and (2) that subjectively the officials acted with a sufficiently culpable state of mind.” (quotation and alterations omitted)); Iko, 535 F.3d at 241; Shakka, 71 F.3d at 166; Strickler, 989 F.2d at 1379.
Turning to the claims against DPS Commissioner Ishee, plaintiff lacks a constitutional right to, or due process interest in, prison grievance procedure. See Adams, 40 F.3d at 75 (“[T]he Constitution creates no entitlement to grievance procedures or access to any such procedure voluntarily established by a state.”); see also Booker v. S.C. Dep't of Corr., 855 F.3d 533, 541 (4th Cir. 2017) (“Adams establishes a clear rule: inmates have no constitutional entitlement or due process interest in access to a grievance procedure. An inmate thus cannot bring a § 1983 claim alleging denial of a specific grievance process, for example.”). Further, because Ishee is not a medical provider, he generally is entitled to rely on the expertise of medical providers as to the care provided to plaintiff. Iko, 535 F.3d at 242 (“If a prisoner is under the care of medical experts ... a nonmedical prison official will generally be justified in believing that the prisoner is in capable hands.” (quotation omitted)). Plaintiff also fails to plausibly allege that Ishee actually knew of, but disregarded, plaintiffs serious medical need or acted with the requisite culpable state of mind. See Jackson, 775 F.3d at 178; DeTonta, 708 F.3d at 525; Wright, 766 F.2d at 850 (requiring a § 1983 plaintiff to “affirmatively show[ ] that the official charged acted personally in the deprivation of the plaintiffs rights,” but finding insufficient mere knowledge of such a deprivation (internal quotation marks omitted)). Thus, plaintiff fails either to plausibly allege Ishee's personal involvement in the purported constitutional violations, Iqbal, 556 U.S. At 678; Twombly, 550 U.S. at 555; Monell, 436 U.S. at 691-92, or to state a viable supervisory liability claim under the governing standard, see Shaw v. Stroud, 13 F.3d 791, 799 (4th Cir. 1994).
Next, the claims arising in this judicial district are time barred. Congress has not adopted a specific statute of limitations for § 1983 actions; rather, the statute of limitations is determined by the law of the state in which the action arose. See Wallace v. Kato, 549 U.S. 384, 387 (2007); Owens v. Baltimore City State's Att'ys Off, 767 F.3d 379, 388 (4th Cir. 2014). Section 1983 claims “are best characterized as personal injury actions,” Wilson v. Garcia, 471 U.S. 261, 277 (1985), and are subject to state statutes of limitations. North Carolina personal-injury actions have a three-year statute of limitations. N.C. Gen. Stat. § 1 -52(5); see Brooks v. City of Winston-Salem, 85 F.3d 178, 181 (4th Cir. 1996); Nat'l Adver. Co. v. City of Raleigh, 947 F.2d 1158, 1161-62 & n.2 (4th Cir. 1991). The time for § 1983 claims generally accrues when the plaintiff knows or has reason to know of the injury underlying the action. Wallace, 549 U.S. at 391.
Here, plaintiff alleges he was at Pender C.I. from March 2016 to at least January 2018, but he returned to Alexander C.I. by May 2018. Am. Compl. [D.E. 6] at 7-9. Plaintiff knew or had reason to know about his Pender C.I. medical care on or about the dates the treatments occurred, and his bald allegations of constitutionally inadequate medical care at Pender C.I. do not identify “a series of acts or omissions that demonstrate deliberate indifference to a serious, ongoing medical need.” Cf. DePaola v. Clarke, 884 F.3d 481, 487 (4th Cir. 2018). Thus, absent tolling, the three-year statute of limitations for § 1983 claims arising at Pender C.I. expired well before the date plaintiff signed his initial complaint on October 10, 2021. See Wallace, 549 U.S. at 391.
Plaintiffs filings do not show that he has pursued his rights diligently as to these Pender C.I. claims, or that “extraordinary circumstances” needed for tolling the statute of limitations exist.
See Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005) (“Generally, a litigant seeking equitable tolling bears the burden of establishing two elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way.” (citation omitted)); Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 96 (1990) (discussing tolling); Hardin v. Straub, 490 U.S. 536, 538-39 (1985) (noting § 1983 claims rely on state-law tolling provisions); Shook ex rel. Shook v. Gaston Cnty. Bd. of Educ., 882 F.2d 119, 121 (4th Cir. 1989) (“When a state statute [of limitations] is borrowed ... the federal court will also borrow the state rules on tolling.”); see also Misenheimer v. Burris, 360 N.C. 620, 622, 637 S.E.2d 173, 175 (2006) (discussing state tolling provisions); Williams v. BCBS of NC, 357 N.C. 170, 179, 581 S.E.2d 415, 423 (2003) (“A continuing violation [tolling a statute of limitations] is occasioned by continual unlawful acts, not by continual ill effects from an original violation.” (citation and quotation marks omitted)). Plaintiffs unfamiliarity with the law, lack of legal representation, and incarcerated status also are insufficient grounds for tolling. United States v. Sosa, 364 F.3d 507, 512-13 (4th Cir. 2004). Thus, plaintiffs § 1983 claims arising at Pender C.I. are dismissed as time barred. See Nasim v. Warden, Md. House of Corr., 64 F.3d 951, 956 (4th Cir. 1995) (en banc) (dismissal appropriate if claim is time-barred on its face), cert, denied, 516 U.S. 1177 (1996). Finally, because further amendment cannot cure this complaint, dismissal is appropriate, see Goode v. Cent. Virginia Legal Aid Soc'y, Inc., 807 F.3d 619, 628 (4th Cir. 2015), and, because the court dismisses all plaintiffs federal constitutional claims, the court also declines to exercise supplemental jurisdiction over any lingering state-law claims. See 28 U.S.C. § 1367(c)(3) (granting district courts discretion to decline to exercises supplemental jurisdiction over a pendent state-law claim where the court has dismissed all claims over which it has original jurisdiction);
United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726 (1966) (noting “pendent jurisdiction is a doctrine of jurisdictional discretion” and that, “if the federal claims are dismissed before trial, even though not insubstantial in a jurisdictional sense, the state claims should be dismissed as well”); Hinson v. Norwest Fin. S.C., Inc., 239 F.3d 611, 617 (4th Cir. 2001) (holding the district court possesses “inherent power to dismiss the case . . . provided the conditions set forth in § 1367(c) for declining to exercise supplemental jurisdiction have been met”).
Conclusion:
In sum, the court: DENIES the motion for joinder [D.E. 7]; DISMISSES the claims arising at Pender C.L as time barred; DISMISSES WITHOUT PREJUDICE claims arising at Alexander C.L and Avery-Mitchell C.L to allow plaintiff to raise them in the appropriate judicial district; DISMISSES WITHOUT PREJUDICE any remaining claims either as abandoned, time barred, or for failure to state a viable Eighth Amendment claim; and DIRECTS the clerk to close the case.
SO ORDERED,