MCNEILL v. GADDY

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

JAMES C. MCNEILL, )

)

Plaintiff, )

)

v. ) 1:18CV786

)

CAMERON GADDY, et al., )

)

Defendants. )

MEMORANDUM OPINION AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

Plaintiff James C. McNeill, a prisoner of the State of North Carolina, seeks monetary

damages against several defendants pursuant to 42 U.S.C. § 1983 for alleged wrongful

confiscation of legal documents and deliberate indifference to Plaintiff’s serious medical needs

while he was incarcerated at Scotland Correctional Institution (“Scotland”). (See Compl.,

Docket Entry 2.) Defendant, Connie Locklear-Jones, M.D. (“Dr. Locklear-Jones”), has filed

a Motion for Summary Judgment solely on the issue of whether Plaintiff exhausted his

administrative remedies. (See Docket Entry 22.) Plaintiff filed a response. (Docket Entry 27.)

For the reasons stated herein, the Court recommends that the motion for summary judgement

be granted and this action be dismissed against Dr. Locklear-Jones.

I. BACKGROUND

In his complaint, Plaintiff alleges that he was injured as a result of Defendants’

deliberate indifference to his serious medical needs while he was incarcerated at Scotland from

May 23, 2018 through July 12, 2018. (Compl. at 40-41.) Plaintiff states that Defendant Dr.

Locklear-Jones discontinued treatment for Plaintiff’s chronic pain in retaliation of another

pending lawsuit against Dr. Locklear-Jones. (Id. at 32). Specifically, Plaintiff alleges that Dr.

Locklear-Jones disregarded previous medical orders for his prescription medications for

Gabapentin, Tramadol, and Baclofen, as well as an extra mattress and chair in his cell. (Id. at

35.)

Plaintiff also alleges that on May 23, 2018, he went to a medical screening and

overheard Dr. Locklear-Jones say that she “can’t stand” Plaintiff and wished he was dead. (Id.

at 40-41.) Plaintiff alleges that Dr. Locklear-Jones informed the staff not to dispense

Plaintiff’s blood pressure medications. (Id. at 41.) Plaintiff asserts that he submitted a total of

12 grievances concerning Dr. Locklear-Jones’ deliberate indifference to his serious medical

needs and none were processed. (Id.) Finally, Plaintiff states that once he was transferred to

Polk Correctional Institution (“Polk”), he saw Dr. Sher Guleria, and all of Plaintiff’s

prescription medications were administered under medical order. (Id. at 43.)

Dr. Locklear-Jones filed her Motion for Summary Judgment on April 8, 2019. (Docket

Entry 22.) She included affidavits and other attachments in support of her argument that

Plaintiff failed to exhaust his administrative remedies prior to filing the instant civil Complaint.

(See Docket Entries 24, 24-1, 24-2, 24-3, 24-4.) On April 19, 2019, Plaintiff filed a response,

with an attached affidavit and grievance form dated November 22, 2016. (Docket Entry 27.)

Defendant thereafter filed a reply. (Docket Entry 32.)

II. DISCUSSION

Dr. Locklear-Jones argues that summary judgment should be entered in her favor solely

on the grounds that Plaintiff failed to properly exhaust his administrative remedies regarding

his claims against Dr. Locklear-Jones as required by the Prison Litigation Reform Act

(“PLRA”). (Docket Entry 22.) Summary judgment is appropriate when there exists no

genuine issue of material fact and the moving party is entitled to judgment as a matter of law.

Fed. R. Civ. P. 56(c); Zahodnick v. Int’l Bus. Machs. Corp., 135 F.3d 911, 913 (4th Cir. 1997). The

party seeking summary judgment bears the initial burden of coming forward and

demonstrating the absence of a genuine issue of material fact. Temkin v. Frederick County

Comm’rs, 945 F.2d 716, 718 (4th Cir. 1991) (citing Celotex v. Catrett, 477 U.S. 317, 322 (1986)).

Once the moving party has met its burden, the non-moving party must then affirmatively

demonstrate that there is a genuine issue of material fact which requires trial. Matsushita Elec.

Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). There is no issue for trial unless

there is sufficient evidence favoring the non-moving party for a fact finder to return a verdict

for that party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); Sylvia Dev. Corp. v. Calvert

County, Md., 48 F.3d 810, 817 (4th Cir. 1995). Thus, the moving party can bear his burden

either by presenting affirmative evidence or by demonstrating that the non-moving party’s

evidence is insufficient to establish his claim. Celotex, 477 U.S. at 331 (Brennan, J., dissenting).

When making the summary judgment determination, the Court must view the

evidence, and all justifiable inferences from the evidence, in the light most favorable to the

non-moving party. Zahodnick, 135 F.3d at 913; Halperin v. Abacus Tech. Corp., 128 F.3d 191, 196

(4th Cir. 1997). However, the party opposing summary judgment may not rest on mere

allegations or denials, and the court need not consider “unsupported assertions” or “self-

serving opinions without objective corroboration.” Anderson, 477 U.S. at 248-49; Evans v.

Techs. Applications & Serv. Co., 80 F.3d 954, 962 (4th Cir. 1996).

The PLRA, 42 U.S.C. § 1997e(a), requires inmates to properly exhaust administrative

remedies before filing civil actions challenging the conditions of their confinement. See

Woodford v. Ngo, 548 U.S. 81, 84 (2006); Moore v. Bennette, 517 F.3d 717, 725 (4th Cir. 2008).

The exhaustion requirement applies “to all inmate suits about prison life, whether they involve

general circumstances or particular episodes, and whether they allege excessive force or some

other wrong.” Porter v. Nussle, 534 U.S. 516, 532 (2002). It is well-settled that Section 1997e’s

exhaustion requirement is mandatory. See Jones v. Bock, 549 U.S. 199, 211 (2007); see also

Woodford, 548 U.S. at 90-91 (stating that the PLRA requires “proper exhaustion,” which

“demands compliance with an agency’s deadlines and other critical procedural rules”);

Anderson, 407 F.3d at 676-77 (citing Porter, 534 U.S. at 524).

As a threshold matter, Dr. Locklear-Jones argues that Plaintiff failed to exhaust his

administrative remedies prior to filing his Complaint. (Docket Entry 23 at 3-13.) In support

of this argument, she submitted the affidavits of three employers from the North Carolina

Department of Public Safety1 (“NCDPS”): Correctional Officer Sheryl Hatcher; Correctional

Officer Keirah Williams; and the Executive Director of the Inmate Grievance Resolution

Board (“the Board”), Kimberly Grande. (See Docket Entries 24, 33, 34.) The affidavits

describe Plaintiff’s use and knowledge of NCDPS’s three-step Administrative Remedy

Procedure (“ARP”), which governs the filing of grievances in each of its correctional facilities.2

See, e.g., Moore v. Bennette, 517 F.3d 717, 721 (4th Cir. 2008).

2 See N.C. Gen. Stat. §§ 148-118.1 et seq.; N.C. Dep’t Pub. Safety, Policy and Procedure Manual, Ch.

G, §§ .0300 et seq., available at https://www.doc.state.nc.us/dop/policy_procedure_manual/g300.pdf

(last visted Sept. 16, 2019). The Court takes judicial notice of this established procedure of the

NCDPS as a matter of public record. Fed. R. Evid. 201(1).

The ARP first encourages inmates to attempt informal communication with

responsible officials at the facility where the problem arose. ARP § .0301(a). If informal

resolution is unsuccessful, the ARP provides that “any aggrieved inmate may submit a written

grievance . . . .” Id. § .0310(a)(1). An inmate may only submit a new grievance after a pending

grievance has completed step two. Id. § .0304(b). If the inmate is not satisfied with the

decision reached at the above-described step one of the grievance process, he or she may

request relief from the facility head. Id. § .0310(b)(1). If the inmate is not satisfied with the

decision reached at the above-described step two of the grievance process, he or she may

appeal to the Secretary of Public Safety (“SPS”) through the Inmate Grievance Examiner

(“IGE”). Id. § .0310(c)(1). The decision by the IGE or a modification by the SPS shall

constitute the final step of the Administrative Remedy Procedure. Id. § .0310(c)(6). “North

Carolina prisoners can satisfy the exhaustion requirement by completing all three steps of the

inmate grievance process, which culminates in the rendering of a decision upon the prisoner’s

appeal by [ the Board].” Harris v. Midford, No. 1:10-cv-263-RJC, 2011 WL 1601446, at *2

(W.D.N.C. Apr. 27, 2011) (unpublished).

Here, Officer Hatcher processes grievances at Scotland. (Hatcher Aff. ¶ 2, Docket

Entry 33.) Hatcher states that between May 23, 2018 and July 12, 2018, she received four

grievance submissions from Plaintiff. (Id. ¶ 3.) Three of these grievances were rejected

because plaintiff had another grievance pending at step one, while the fourth grievance

concerning Plaintiff’s personal property was appealed to step three on August 3, 2018. (Id. ¶¶

5-8; see also Exs. A-D, Docket Entries 33-1, 33-2, 33-3, 33-4.)

Officer Williams, a correctional officer, reviewed the records related to a fifth grievance

submitted by Plaintiff, after he transferred to Polk, that was received on July 18, 2018 and

screened the following day. (Williams Aff. ¶ 4, Docket Entry 34.) In this grievance, Plaintiff

complained of Dr. Locklear-Jones’ discontinuance of his prescribed medications, including his

order for an extra mattress and chairs in his cell. (Ex. A, Docket Entry 34-1.) Williams states

that she rejected the grievance because Plaintiff had a pending grievance that had not

completed step two review. (Williams Aff. ¶ 5; Ex. B, Docket Entry 34-2.) Williams informed

Plaintiff of the same and provided him with a copy of the notice of rejection. (Williams Aff.

¶ 5.)

Lastly, Dr. Locklear-Jones’ motion includes the affidavit of Grande, who is an IGE for

NCDPS. (Grande Aff. ¶ 2, Docket Entry 24; see also Docket Entry 24-1 at 5.) She states that

from May 23, 2018 through September 13, 2018, the Board reviewed four grievances appealed

by Plaintiff and then issued an order for each grievance. (Grande Aff. ¶ 4.) One grievance

was considered resolved by prison staff and was, therefore, dismissed. (See Ex. A, Docket

Entry 24-1.) The other three grievances were dismissed because they lacked supporting

evidence. (See Exs. B-D, Docket Entries 24-2, 24-3, 24-4.) Neither of these four grievances

alleged complaints against Dr. Locklear-Jones at Scotland.

A review of the evidence demonstrates that Plaintiff did not exhaust his administrative

remedies regarding Dr. Locklear-Jones’ alleged deliberate indifference to a serious medical

need. The grievance procedure at Scotland is a multi-step process. As explained above, the

affidavits provided by Dr. Locklear-Jones demonstrate that Plaintiff failed to adhere to each

step of the grievance process regarding his allegations of deliberate indifference to his serious

medical need. While Plaintiff did submit a grievance alleging deliberate indifference as to Dr.

Locklear-Jones at Scotland, that grievance, along with three other grievances, was properly

rejected because Plaintiff already had an active grievance in process at step one. When Plaintiff

transferred to Polk and again attempted to raise his concerns regarding Dr. Locklear-Jones,

that grievance was also properly rejected because Plaintiff had an active grievance in process

at step one. A properly rejected grievance is not sufficient to demonstrate that Plaintiff

complied with the exhaustion requirement. See Seamons v. Guise, No. 3:16-CV-649-FDW, 2017

WL 190101, at *2 (W.D.N.C. Jan. 17, 2017) (unpublished) (“The fact that the NCDPS did not

allow Plaintiff to file his grievances . . . based on NCDPS policy that a new grievance may not

be filed while another one has not proceeded past Step Two does not constitute a reason to

excuse Plaintiff from the exhaustion requirement.”).

In opposition to Dr. Locklear-Jones’ motion, Plaintiff filed an affidavit stating that he

submitted a total of 12 grievances while at Scotland regarding Dr. Locklear-Jones’ alleged

deliberate indifference to a serious medical need. (McNeill Aff. ¶ 3, Docket Entry 27.)

Plaintiff, however, does not provide any further documentation of such submissions. The

only documentation Plaintiff provides is a grievance dated November 22, 2016. (Docket Entry

27 at 4). This grievance is well outside the time period underlying the Complaint, but more

importantly, it fails to mention constitutional violations concerning Dr. Locklear-Jones’

alleged deliberate indifference to a serious medical need. (Id.) As such, Plaintiff’s response is

akin to a self-serving affidavit that is insufficient to create a genuine issue of material fact.

Evans, 80 F.3d at 962; Bynum v. Poole, No. 1:15CV960, 2017 WL 5466702, at *3 (M.D.N.C.

Nov. 13, 2017) (unpublished) (Plaintiff’s “self-serving affidavit is not sufficient to create a

genuine issue of material fact.”); Jones v. Metts, No. 5:11-CV-00122-RBH, 2012 WL 630180, at

*3 (D.S.C. Feb. 27, 2012) (unpublished) (“[U]nsubstantiated allegation[s], wholly lacking in

evidentiary support, [are] insufficient to create a genuine issue of material fact as to whether

[prisoner] did, in fact, exhaust his administrative remedies.”).

In sum, Plaintiff’s arguments fail to create a genuine issue of material fact on the issue

of exhaustion. His “mere rote assertions” regarding exhaustion of his administrative remedies

“remain unaccompanied by supporting facts.” Lockett v. Johnson, No. 7-11-CV-00125, 2011

WL 3794008, at *5 (W.D. Va. Aug. 25, 2011) (unpublished). Also, “vague assertions of the

[Scotland’s] unresponsiveness to [Plaintiff’s] alleged grievances and appeals likewise fail to

satisfy the administrative exhaustion requirement.” Id. Therefore, Dr. Locklear-Jones’ motion

for summary should be granted. See Fox v. Barnes, No. 1:16CV1196, 2018 WL 3406859, at *4

(M.D.N.C. July 12, 2018) (unpublished) (“Since there exists no genuine issue of material fact

as to whether Plaintiff exhausted his administrative remedies prior to filing his original

Complaint in this action, Defendants’ motion should be granted.”); Seelig v. Perry, No.

1:16CV1166, 2017 WL 5006427, at *9 (M.D.N.C. Oct. 30, 2017) (unpublished) (“Having failed

to exhaust his administrative remedies by completing all three steps required by the ARP,

Defendant’s motion for summary judgment should be granted.”).

III. CONCLUSION

For the reasons stated herein, IT IS HEREBY RECOMMENDED (that

Defendant’s Dr. Locklear-Jones’ Motion for Summary Judgment (Docket Entry 22) solely on

the issue of whether Plaintiff exhausted administrative remedies, be GRANTED, and that

this action be dismissed without prejudice.

Joe L. Webster

United States Magistrate Judge

September 26, 2019

Durham, North Carolina