SIMMONS v. STUBBS et al, No. 1:2011cv00291 - Document 32 (M.D.N.C. 2014)
Court Description: MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE JOE L. WEBSTER on 2/6/2014; that the Court GRANT Defendant Umesi's motion to dismiss (Docket Entry 25 ) for failure to state a claim for deliberate indifference to a serious medical need under 42 U.S.C. §1983. (Sheets, Jamie)
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IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA KEVIN K. SIMMONS, ) ) ) ) ) ) ) ) ) Plaintiff, v B. STUBBS, et a1., Defendant. 1,:1,1,CY291, ) MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE TUDGE This matter is before the court on the motion to dismiss of Defendant Joseph Umesi, M.D. ("Defendant Umesi"), (Docket Entry 25.) Plaintiff fìled this motion. (Docket Entry 30.) This matter is ripe a response in opposition to fot disposition. For the following reasons, the court will recommend that Defendant Umesi's motion to dismiss be granted. I. BACKGROUND On or about ,\ptil 1.3,201.1, Plaintiff, a prisoner of the State of Notth Catolina, filed a complaint against Defendants B. Stubbs, Joseph Umesi and C. Wyatt pursuant to 42 U.S.C. S 1gg¡.t (Docket Entty 2.) In his complaint, Plaintiff alleges that Defendants acted with delibetate indiffetence to Plaintiffs medical needs with tegards to heating loss.2 (Compl. fl V, Docket F;ntry 2.) Plaintiff states that he filed a sick-call tequest in September t 201,0 after The electronic docket sheet in this matter indicates that "C. Wyatt" wâs not served and is not a party to this action. (Jae Docket Entry 9.) ' The facà ate consftued in the light most favotable to Plaintiff as the non-movingp^nq. Randallu. Unind Sutes,30 F.3d 51,8,522 (4th Cir. 1994). having trouble with his hearing. (Id.) One week later, he was seen by a nutse who scheduled Ptaintiff a visit with the physician. (Id.) Plaintiff was seen by Defendant Umesi a month later and subsequently sent to Pinehurst Medical Center for a headng test which unsuccessful. (Id) Plaintiff alleges that he continues to complain about his hearing ptoblems and has not teceived a tesponse from medical damages against was staff. (Id.) He seeks monetary Defendants. (Id.I VI.) On July 14,201L, Defendant Stubbs fìled a motion to dismÃss Plaintiffs complaint. (Docket Entry 1,7.) On,\ugust1.9,201.1, a recommendation was entered to dismiss claims against Defendant Stubbs. 7, 201,2, (IM.-. Op. Recomm. and Otder, Docket F;nty 23.) On March the Court adopted the Magisttate Judge's Recommendation and Defendant Stubbs ftom this action. (See Orde4 Docket Entty dismissed 31.) On August 26, 2011., Defendant Umesi filed a motion to dismiss which is now pending before the court. (Docket Entry 25.) II. DISCUSSION Defendønt Umesi'¡ Motion to Disniss Par¡aarut to Rale / 2(b)(5) A. Standard of Review Defendant Umesi ârgues that dismissal is appropriate pursuant to Fedetal Rule of Civil 12(b)(5) fot insufficient service of ptocess. "A motion to dismiss undet Rule 12þ)(5) is the appropriate means for challenging the mannet ot sufficiency of service of process." Plant Genetic tr., lt V. u. Ciba Seeds,933 F.Supp. 51.9,526 (à 4.D.N.C. 1996) (citing Chilickl u. Schweiker,796 tr.2d 1131., 1,1,36 (9th Cir. 1986), reu'd on other groands,487 U.S. 412 (1,988)). Once the sufficiency of sewice of process is challenged, the burden is on the plaintiff to 2 establish that service of ptocess has been completed in a manîet that complies with Rule 4 of the Fedetal Rules of Civil Procedute. Id. (citation omitted.) The Foutth Circuit has pteviously stated: \X/hen the process gives the defendant actual notice of the pendency of the action, the rules, in general, are entitled to a libetal consttuction. ìà hen thete is ac¡nI notice, every technical violation of the rule or failute of strict compliance m^y not invalidate the service of ptocess. But the rules ate thete to be followed, and plain tequirements fot the means of effecting service of process may not be ignoted. Annco, Inc. u. Penrod-StaffirBldg. S1ts., Inc.,733F.2d L087, 1089 (4th Cir. 1984). "Even so, courts generally allow pro re plaintiffs a chance to temedy technical insufficiencies in service of ptocess." Thomas u. Ne/ms, No. 1:09-CY-491, 201,3 WL 59341,9, at x1 (à 4.D.N.C. Feb. 14, 201 3) (emphasis added). The mannet in which a defendantm^y be served is governed by Rule 4 of the Fedetal Rules of Civil Procedure. Service upon an individual within a judicial district in the United States must comply with Rule 4(e) which states: Unless federal law provides otherwise, an individual . . . m^y be served in judicial district of the United States by: a (1) following state law for serving a summons in an action btought in courts of genetal jurisdiction in the state where the district court is located or whete service is made; or (2) doing atry of the following: (A) delivering a copy of the summons and of the complaint to the individual petsonally; (B) leaving a copy of each at the individual's dwelling or usual place of abode with someone of suitable age and disctetion who tesides thete; of J (C) deliveting â copy of each to an agent authorized by appointment or by law to teceive service of process. Fed. R. Civ. P. 4(e). N.C. Gen. Stat. $ 1A-1,, Rule 40 sets out the manner in which service upon anatural person may be made in the state of North Caroltna. The Foutth Citcuit has stated that "fa]bsent waiver or consent, a failure to obtain proper service on the defendant depdves the court of petsonal jutisdiction over the defendant." Koeltler u. Dodwell, 152 F.3d 304, 306 (4th Cir.1,998) (citation omitted). In North Carohna, "fa]lthough ^ return of service showing sewice on its face constitutes prima fatie evtdence of service, such showing can be tebutted by the affidavits of more than one person service was not made upon the person 545, 467 S.E.2d showing unequivocally that proper of the defendant." Crimslry u. Ne/nn, 342 N.C. 542, 92,94 (1,996) (emphasis in otiginal). B. Analysis Defendant Umesi argues that Plaintiff imptopetly served Defendant at his place of employment by serving an individual unauthoà zed to accept service on his behalf. Q.f. Mem. at 5, Docket Entry 26.) The record reflects that a summons and complaint was issued to "J.Umesi, P.O. Box 1808, Laudnbutg, N.C. 28353-1,808, SCI #4860." (Summons at 1, Docket Entry 6.) ,4. copy of the Process Receipt and Retutn was filed with the coutt indicating that"P. Anderson" was served on May 24,201,1. (Ptocess Receipt and Retutn at 1, Docket Entry 8.) The box indicating "[a] person of suitable age and disctetion then tesiding in defendant's usual place of abode" was matked. (Id.) In support of his motÃon to dismiss, Defendant Umesi fìled an afftdavit attesting that"'P. Andetson'has never tesided at fDefendant Umesi's] 'usual place of abode,' not has Scotland Corectional Institution ever been fDefendant Umesi's] 'usual place of abode."' (Jmesi à ff. 4 I 3, Docket Etttty 25-1,.) Defendant Umesi futher indicated that "P. Anderson" was not his authotized agent, nor was any other individual at the ptison authotized to accept service on his behalf. (Id.) After review of the evidence, the Court concludes that Defendant Umesi has tebutted the presumption that service was ptoper. Acceptance of service by an unauthotized individual at Defendant Umesi's place of employment is not à n acceptable means of seryice. Elkin¡ u. Broorue, 213 F.R.D. 273, 276 M.D.N.C. 2003). However, Defendant Umesi received ac¡nI notice, and there is no indication that he would be ptejudiced by a libetal construction of Rule 4(-)., See Thomas, 2013 WL 59341,9 at x1 (finding no ptejudice in allowing the plaintiff an opportunity to cure service). Dismissal fot insufficient service of process is, thetefore, inappropriate. Nevertheless, the undersigned recofiünends dismissal of this action for failure to state a claim based upon the reasons stated below. Defendant Umesi's Motion to Dismis: Par¡aanî to Rale 12(b)(6) A. Standard of Review Defendant argues that dismissal Procedure 12(bX6). is appropriate pursuant to Fedetal Rule of Civil A motion to dismiss pursuant to Rule 12þ)(6) tests the sufficiency of the complaint. E,dwards u. Citl of Goldsboro, 178 F.3d 23L, 243 (1999), '\ complaint that does not "contain sufficient factual matter, accepted as true, to 'state a claim to telief that 3 is Pursuant to Rule 4(m), the Court must dismiss Plaintiffs Complaint or otder that sewice be effectuated within a specified time period. See Fed. R. Civ. P. 4(m). Although the Coutt has detetmined the Complaint should not be dismissed fot insufficient service of process, the Coutt recommends dismissal on other grounds. Thus, gtanting Plaintiff an extension of trme to complete service is not necessalT. See Krahenbahl u. Hlde Cnfl, Sch., Case No, 4:1,2-CY-1,70-BO, 2013 WL 1.1.63787 at n.2 @,.D.N.C. Mat. 20,2013) ("[I]n light of its findrng that plaintiff has failed to state a claim under Rule 1,2þ)(6), the Coutt denies defendant's motion to dismiss fot failute to effect proper service."); Mallard u. MV Transp., Inc., CIY. A. DKC 1,7-2997 ,2012WL 642496 at *2 (D. Md' F eb. 27 , 2072) (" As a ptaciLcal matter, , . . it would make little sense to gtant Plaintiff an extension of time to serve a complaint that fails to state a claim.") 5 plausible on its face"' must be dismissed. Ashnoft Bell Atlantic u. Twonbþ,550 u. Iqbal,556 U.S. 662,678 (2009) (quoting U.S. 544, 570 Q007)). "A claim has facial plausibility when the plaintiff pleads factt:iaI content that allows the court to dtaw the reasonable inference that the defendant is liable for the misconduct." Id.; LLC, 634 F.3d 7 54, 7 68 (4th Cir. dismissed if it does not 201,1) see also Simmorc¡ u. United Mortg and I-.oan Inu., ("On a Rule 12þ)(6) motion , a complaint must be allege enough facts to state a claim to relief that is plausible on its face.") (citations and quotations omitted). The "court accepts all well-pled facts as ttue and construes these facts in the light most favorable to the plaintiff," but "legal conclusions, elements enhancementf,] of a cause of does not considet action, and bare assettions devoid unwarranted inferences, unreasonable conclusions> Nernet Cheurolet, Ltd. u. Consømerffiirlcory 1nc.,591 or of factual arguments." F.3d 250, 255 (4th Cir. 2009) (citations omitted). In other words, the standard requires a plaintiff to arlculate facts, that, when accepted as true, demonsttate the plaintiff has stated a clakn that makes it plausible he is entitled to relief. Francis u. Giacomelli,588 F'.3d 186, 193 (4th Cir. 2009) (quoting Iqbal, 556 U.S. at 678,andTwombþ,550 U.S. at557). Pro se complaints ^re to be libetally consttued in assessing sufficiency undet the Federal Rules of Civil Ptocedute. Erick:on u, Pardw,551 U.S. 89,94 Q007). However, even undet this liberal construction, "geneà osity is not fantasy," afld the coutt is not expected to plead a plarnttf?s claim fot him. Bender u. Sabarban Hosþ., Inc., 1.59 1ee8). 6 F.3d 186, 1,92 (4th C1r. B. Deliberate Indifference InFarrneru. Brennan,511 U.S. 825 (1,994), the Supteme Coutt held that the Eighth Amendment to the Constitution "ìmposes duties on þtison] officials who must ptovide humane conditions of confìnement; ptison officials must ensure that inmates teceive adequate food, clothing, sheltet, and medical cate, and must take teasonable measutes to guarantee the safety of the inmates." Id. at 832 (internal quotation and citation omitted). successful Eighth Amendment claim contains two elements: the depdvation must A be, objectively, "sufficiently serious," and the pdson offìcial must have demonsttated a "delibetate indiffetence to inmate health ot safety." Id. at834. "Delibetate indiffetence is ^ vety high standard-a showing of mete negligence will not meet it." Gralson u. Peed, 195 F.3d 692, 695 (4th Cit. 1,999). Rather, the "delibetate indiffetence" prong requires Plaintiff to make "two showings:" First, the evidence must show that the official in question subjectively tecognized a substantial dsk of harm. It is not enough that the officets ¡hoald haue recogntzed it; they actually must have petceived the tisk. Second, the evidence must show that the official in question subjectively recogtized that his actions were inapptoptiate in light of that dsk. As with the subjective awareness element, it is not enough that the official sltould haue recogrized that his action wete inapproptiate; the official actually ma¡Ã® actions were insufficient. Parrish ex re/. Lee u. Cleueland,372 tr.3d 294,303 (4th haue tecognized that his Cit. 2004) (intetnal citations and quotation marks omitted) (emphasis in original). "The subjective component thetefote sets a paricularly high bar to recovery." Iko u. Shreue, 535 F.3d 225, 241 (4th Cit. "'Deliberate indifference entails something more than mere negligence . . . Smirh, 71, F.3d 1,62, L66 (4th Cir. 1,995) (quoting Fanner 511 U.S. at 835). ."' 2008). Sha,kka "It requites that u. a prison offìcial know of and disregatd the objectively setious condition, medical need, ot dsk 7 of harm." Id. To constitute deüberate indifference, "the incompetent, inadequate, or excessive as treatment must be so gtossly to shock the conscience or to be intoletable to fundamental fairness." Miltìer u. Beom, 896 F.2d 848, 851 (4th Cir. 1990).4 Thus, "mete negligence ot malpractice" does not constitute delibetate indifference. Id. at 852. Similatly, "[d]isagreements between an inmate and a physician over the inmate's proper medical cate do not state a S 1983 claim unless exceptional circumstances ate alleged." If/rigbr u. Collins, 766 F.2d 841.,849 (4th Cir. 1935). It is well settled, thetefote, that a medical need sedous enough to give rise to a constitutional claim involves a condition that places the inmate at a substantial dsk of sedous harm, usually loss of life or petmanent disability, ot a condition for which lack of treatment perpetuates severe pain. Farrzer, 51.1. U.S. at 832-35. C. Analysis The Complaint fails to allege that Defendant Umesi was deliberately indifferent to a setious medical need. Accotding to the alleged facts, Plaintiff was seen by a nurse a week after submitttnga sick-call request. (Compl. llV.) .,\ month latet, he was seen by Defendant Umesi. (Id.) Platntiff was later sent to Pinehurst Medical Centet fot ahearing test which was unsuccessful. (Id.) ,An attached exhibits indicates that an ENT recommendation is pending approval from the Utilization Review Board.6 (Id. at 27.) Plaintiffs Complaint simply fails to state a cLaim for deliberate indifference to a setious medical need. Instead, the o alleged Miltierhas been overuledby Farrnerto the extent that it allowed a finding of dehbetate indiffetence upon constructive knowledge, but it is still good law fot the ptoposition cited. t The Court may consider exhibits attached to the Complaint when nrling on a motion to dismiss. (Secjt oJ'Smn lior Defenæ u. Trimb/e Naui¿arion I-td.,484 F.3d 700, 705 (4th Cft. 2007)). 6 In his Complaint, Plaintiff notes the uncertainty as to whether Defendant recommended an ENT evaluation. (Jea Compl. at 25, 27.) Tal<tng the facts rn light most favotable to Platntiff fot putposes of this motion, the Coutt will assume a recommendation was made and is pending apptoval. 8 facts illustrate a teasonable effort by Defendant Umesi to address Plaintiffs hearing loss concerns. Defendant Umesi's actions are not "so gtossly incompetent, inadequate or excessive as to shock the conscience." Mìltier,896 F.2d ^t 851.. Thus, Plaintiffs claim against Defendant Umesi should be dismissed. IV. CONCLUSION For the reasons stated hetein, IT IS THEREFORE RECOMMENDED that the Court GRANT Defendant Umesi's motion to dismiss pocket Etttty 25) for failure to state a clatm fot deliberate indiffetence to a setious medical need undet 42 U.S.C. 51983. Joe L. l7ebstet ted States Magisttate Judge Durham. Notth Carchna February ldhzor+ 9
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