SIMMONS v. SHELTON et al, No. 1:2013cv00566 - Document 35 (M.D.N.C. 2015)
Court Description: MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE JOE L. WEBSTER on 05/14/2015; that Defendants' motions to dismiss for failure to state a claim (Docket Entries 20 , 22 ) be GRANTED. FURTHER RECOMMENDED that this action be dismissed with prejudice. (Garland, Leah)
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SIMMONS v. SHELTON et al Doc. 35 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA ìøALTER COLUMBUS SIMMONS, Plaintiff, v LT. RANDY SHELTON, et al., Defendants. ) ) ) ) ) ) ) ) ) 1,:1,3cv566 MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE This mattet is before the Coutt two motions - a motion to dismiss filed by Defendants Nurses Apdl, Jessica and Marilyn (Docket Entty 20) and ^ separrate motion to dismiss filed by Defendant Lt. Randy Shelton. (Docket Entry 22.) Plaintiff has tesponded to the motions and the matter is tipe fot disposition. Fot the teasorìs that follow, Defendants'motions to dismiss should be granted. I. Bacþround and PlaintifPs Allegations On July 3, 201.3, Plaintiff Waltet Columbus Simmons, a former inmate at the Sutry County Detention Centet, filed this pro se action, naming the following persons as Defendants: Lt. Randy Shelton, and Nurses Marilyn, April and Jessica. Plaintiff filed an amended complaint on September 4,2013. (Docket Entry 7.) The complaint is on a fotm that putports to set forth a claim pursuant to 42 U.S.C. S 1983 fot aviolation of PlaintifPs civil tights, and the factual allegations are in the natute of a claim fot deliberate indiffetence to seri'ous medical needs in violation of the Eighth Amendment's prohibition against ctuel and unusual punishment. Dockets.Justia.com Plaintiff's facttal allegations, in theit entirety, are as followsl In the month of Oct. 6 2012I was housed at Sutry County Detention Centet. Between the months of Oct. and Nov. 201,2 (1) I was seen by Nurse Jessica fot a physical. My blood pressure was checked and it was high. I was asked was I taking any medication for it. I told her yes when I was out I took a pink water pill for my high blood pressure. (2) The second time I went to see the Nurse Apdl for othet teasons my blood pressure was taken [and] it was still high but was not put on my medication. (3) The thitd time I was seen by the Nutse Madlyn fot othet reasons I was checked fot high blood pressure it was still high. For all three times I was not given any medication fot my high blood pressure. For seven months I þave] been suffedng blutty eyes, headaches, dizziness, sweat at night. I þave] been going thtough this off and on fot seven months. In the month of Apdl 30, 201.3 I was ttansfetted to Forsyth County Jail. I was seen by the nutses thete and my blood was still high so the nurses asked me have I been taking any medication fot it. I told het yes a pink wateÍ pill for it. So the nurse put me on my blood pressure pink watet pill. Evet since things have not been notmal. Two weeks latet I was transferted back to Surry County on May 15,2103. The next day I did not receive any medication and I ask why not the nutse told me because it's normal, I fill out a gtievance and was seen by one of the staffets fot Step 1. Still no medication. I was also seen by Lt. Randy Shelton fot Step II he told me to stay ftom that medication keep telling me leave that medication ^way alone and you will not get any medication here fot sixty eight days I suffer blurry eyes, headaches, dizziness, Iight sweat and still haven't teceived my medication. On JuIy 22,21,03,I was transfered to,\she County. I was seen by the nurses thete and they ask me did I have any ptoblems I told her yes high blood pressure so she checked me and ask what I was taking. I told her a pink watet pill so the nutse put me on my medication, after I went to two county [sic] and my medication was given. Now Sutry County is giving me my medication but petmanent damage has obviously been done to my body. The grounds I am suing for arc negligence and medical malptactice. (Am. Compl. at 5, Docket Entry 7.) In his ptayet for telief, Plaintiff asks for damages for negligence, mental anguish and pain and suffering. (Id. at 6.) t Some spelling, punctuation and grammatical ettors have been cotrected. 2 II. Motion to Dismiss Standard Defendants argue that dismissal is apptoptiate pursuant Procedure 12þ)(6). to Fedetal Rule of Civil ,\ motion to dismiss pursuant to Rule 12þ)(6) tests the sufficiency of the complaínt. E,dward¡ u. Citl of Goldsboro, 178 F.3d 231,243 (1,999). A complaint that does not "contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face"'must be dismissed. Ashcroft u. Iqbal,556 U.S. 662,678 (2009) (quoting BellAtlantic u. Twombþ,550 U.S. 544, 570 Q007)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the coutt to draw the teasonable infetence that the defendant is liable for the misconduct." Id.; rce also Sinmons dv United Mortg. dv I-.oaru Inuest., 634 tr.3d 754, 768 (4th Cit. 201,1) ("On a Rule 12þ)(6) motion, a complaint must be dismissed if it does not allege enough facts to state a claim to telief that is plausible on its fzce."). The "court accepts all well-pled facts as true and consttues these facts in the light most favotable to the plaintiffi," but does not consider "legal conclusions, elements of cause of action, bate assettions devoid inferences, unteasonable conclusions, of factual enhancement[] or arguments." . a unv/affanted Nernet Cheurolet, Ltd. u. Consamerffiirs.clm, 1nc.,591 F.3d 250,255 (4th Cir. 2009) (citations omitted). In other words, the standatd tequires a plainttff to articulate facts, that, when accepted as true, demonstrate the plaintiff has stated a cla:lrn Giacornelli,5SS F.3d 1,86,1.93 (4th that makes it plausible he is entitled to telief. Francis u. Cir. 2009) (quoting Iqbal,556 U.S. at6T3,andTwombþ,550 U.S. at 557). Pro se complaints ate to be liberally consúued in assessing sufficiency undet the Federal Rules of Civil Procedure. Erickson u. Pardas,551 U.S. 89,94 Q007). However, even J undü this libetal construction, "generosity is not fantasy," aÍrà the coutt is not expected to plead a plain:J:f?s claim for him. Bender u, Saburban Ho:þ., Inc., 159 F'.3d 186, 192 (4th Cu. 1998). III. Discussion A. Motion to Dismiss as to Defendant Lt. Randy Shelton Plaintiff putports to bring a claim of delibetate indifference to setious medical needs based on Defendant Shelton's alleged failute to give Plaintiff blood pressute medicine. It is well settled that not "every claim by a pdsonet that he has not teceived adequate medical treatment states a [constitutional] violation." Ertelle u. Gamble,429 U.5.97,1.05 (1976). The Eighth Amendment only ptoscdbes acts or omissions by prison officials that ^re "sufficiently hatmful to evidence deliberate indiffetence to serious medical needs." Id. at 1,06. Since E$e/le, courts have developed a two-part test for evaluating Section 1983 claims alleging Eighth Amendment violations as to medical cate; courts was evidence of a setious medical need and if evaluate whethet there so, then consider whethet a defendant's tesponse to that need amounted to delibetate indiffetence. 241, (4th ltst See Iko u. Shreue,535F.3d225, Cir.2008). In the pdson context, a serious medical need exists diagnosed by a physician as mandating treatment recogtize the need for medical care; ot if (1) a condition has been ot is so obvious that a laypetson would íf Q) a delay in treatment causes a lifelong handicap or permanent loss. In order to prove deliberate indiffetence, a plaintiff must show that "the official knows of and distegards an excessive risk to inmate health ot safety." Farwer a. Brennan,511 U.S. 825,837 (1994). Deliberate indifference is a subjective standatd, focusing 4 on the defendant's conscious distegatd of a substanial tisk of hatm. Farrzter,511 U.S. at 837-38; see also Pari¡h u. Cleueland, 372 F.3d 294, 303 (4th Cit. 2004). dditionally, the individual defendant must real-ize his actions were inapproptiate as a tesult of his actual knowledge of dsk to the inmate. Parish,372F.3da;t303. This standatd is more than mere negligence, requiring actual knowledge of the individual defendant's own tecklessness. Farzner, 51 1 U.S. at 836. It is well settled that negligence or medical malptactice are not suffìcient to establish delibetate indiffetence. Estelle, 429 U.S. at 105-06. An "effoÍ of ludgment" on the part of prison medical staff, or "'inadvertent failure to provide adequate medical cate,'while perhaps sufficient to support ^t\ action for malpractice, depdvation redressable undet $ 1983." Boy;e u. will not constitute a constitutional AliTadah,595 F.2d 948,953 (4th Cit. 1,979) (quoting Estelle,429 U.S. at 105) (abtogated in part, on other grounds, Neitqke u. lY/illiams, 490 U.S. 319 (1989)). "The bottom line is that prison offìcials without medical training are responsible for seeing that prisoners ate attended to by medical professional. They ate not responsible for detetmining the coutse of treatment ot fot ovettuling the opinions of those professionals." Pølliam u. Søþer. of Hoke Corect.,1:05CV1000,2007 ì7L 4180743 (À{.D.N.C. Nov.20, 2007). Here, Plaintiff alleged symptoms of dtzziness, headaches and night sweats.2 He does not allege that Defendant Shelton was involved in his medical cate, only that he made certain comments about Plaintifls medication in response to a gtievance allegedly fìled by Plaintiff. 2 by Defendant Shelton, tn a previous complaint Plaintiff alleged that his night sv/eats were caused by tobacco withdtawal. See Simmon¡ u. Sarry Cnfl Der. Cnlr. et a|,1,:1,3-cv-1,054, Docket Entty 2 (\,Í.D.N.C. Nov. 21,201,3) (dismissed by Order dated March 18,2014, Docket ,{,s pointed out Entry 6). 5 The one sentence in the amended complaint as to Defendant Shelton is simply insufficient to allege that he had actual knowledge of a setious medical need ot that he was deliberately indiffetent to such a need. Plaintiffs assettion in his response that Defendant Shelton should have known that Plaintiff needed blood pressure medication because Defendant Shelton "stated that he has high blood pressure himself so he know[s] how know[s] that this could've killed me if I I feel ... and did not get my blood pressure down" pl.'s Resp. at 2-3,Docket Entry 27) is insuf{icient to show that Defendant Shelton had actual knowledge or was teckless in failing to give Plaintiff medication which was not ptescdbed by medical ptofessionals. Dismissal of Plaintiffs claim is thetefote proper as to Defendant Shelton.3 B. Motion to Dismiss as to Defendant Nurses Jessica, Marilyn and Aprila Defendant Nutses have also moved to dismiss pursuant to Fedetal Rule of Civil Procedute 12þ)(6). (Docket F;ntty 20.) This motion is ptedicated on Plaintiffs failure to meet the mandatory pte-filing cettification tequirements of Rule 9f) of the North Caroltna General Statutes 1,1'-1., Rule 9O. In Notth Caroltna, a plaintiff alleging medical malpractice must comply with Notth Carolina Rule of Civil Ptocedute 9O which requites a plaintiff to include in his complaint an assertion that that an expett in the same field teviewed the medical cate at issue and is wilüng to testi$r that the medical care did not comply with the applicable standatd of care. 3 -1¿¿ N.C. Defendant Shelton asseÍts other grounds for dismissal as well, including sovereign immunity and of supplemental jurisdiction. However, because the court is recommending dismissal on 12(bX6) gtounds, these atguments need not be addtessed futhet, a In the amended complaint, Plaintiff idenufies these Defendants by only their first names. In their motion to dismiss, Defendants provide last names fot Jessica and Mariþn, but not fot ,{,pril, noting however that the motion covers ,\pril as well "if that named defendant 'Ms. A.pdl' tefets to an employee or formet employee of Southetn Health Partners." For the purposes of this Recommendation, the coutt will refer to these Defendants as "Defendant Nurses," lack 6 R. Civ. P 90) Failure to comply with Rule United State¡ 528 Fed. 90 is gtounds fot dismissal. See Uttlepaige u. App'* 289,292 (4th Cir. 201,3) (unpubìished)(finding in a Federal Tott Claims Act case , "thaq whete applicable, a Rule 90 cetification is a mandatory tequitement for a plaintiff in a Noth Carolina medical malpractice action."); Boala u. United States, 1:11cv366, 201,3 WL 5962935, at 82 (À4.D.N.C. Nov. 7 , 2013); Moore u. Pitt Cnfl Mem. Hotþ., 1,39 F. Srrpp. 2d 71.2,71,3-1,4 @,.D.N.C. 2001). The only exception to this tule is whete "[t]he pleading alleges facts establishing negligence undet the existing common-law docttine of. res þsa loquitar." Rule 90(3). In his amended complaint, Plaintiff is challenging the medical cate he teceived while at Sutry and he cleatly states that he is suing fot medical malptactice. (Am. Compl. at Docket Entry 7.) 5, The amended complaint contains no assettions tegarding teview of any medical tecords by a medical ptofessional or potential expert witness. Thus, the only way Plaintiff could be in compliance with Rule 9f) would be negligence undet the docttine of "The doctrine of res if the complaint establishes þsa loqøiÍar. res ipsa loqaitor applies when (1) ditect ptoof of the cause of an injury is not avallable, (2) the instrumentality involved in the accident is undet the defendant's conttol, and (3) the injury is of a type that does not otdinadly occur in the absence of some negligent 877 ^ct ot omission." Al¡ton , 879 Q01,2) (citation omitted); 201,2 WL u. Granuille Health 51s,,221, N.C. pp. 41.6, 41.9,727 S.F^2d :ee also Mahamrnad u. United States, No. 5:11-CT-3126-trL, 3957473, atx6 (E.D.N.C. Sept. 1,0, 201,2). PlaintifPs claim is based solely on Defendants' decisions regarding treatment of his alleged high blood ptessuÍe. The doctrine of res þsa loqøitor does not apply to the allegations of this action. 7 Plaintiffs status as a ptisonet does not excuse his failute to comply with Rule 90's pte-filing cettification tequirements. Mahammad, at *5 n. 2. Because PlaintifPs complaint does not contain the tequired Rule 9(f) cetifìcation, it must be dismissed.s IV. CONCLUSION For the fotegoing reasons, dismiss fot failute to state IT IS RECOMMENDED that Defendants' motions to a clum (Docket Entries 20, 22) be GRANTED. IT IS FURTHER RECOMMENDED that this action be dismissed wrth ptejudice. L Stttes lrfqgi stn*te Judge Durham, North Catoltna ll'4.ay 1.4,201.5 t Ev.n if Plaintiff were not asserting a medical malpractice claim, for the same resons discussed in III A, he has failed to state a claim against Defendant Nutses fot deliberate indiffetence to a serious medical need and dismissal would be ptoper on those gtounds. section 8
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