PICKETT v. LANCE

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

DAVID M. PICKETT, )

Plaintiff,

Vv. 1:21CV916

DR. EDWARD D. LANCE, et al,

Defendants.

MEMORANDUM OPINION AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

This matter is before the Court on Defendants Edward D. Lance, M.D. (“Dr. Lance’)

and Pamela Stutts, LPN’s (“Nutse Stutts”) Amended Motion to Dismiss pursuant to Rule

12(b)(6) of the Federal Rules of Civil Procedute. (Docket Entry 29.) Plaintiff David M. Pickett

filed an opposition brief. (Docket Entry 31.) For the reasons stated herein, the undersigned

recommends that Defendants’ motion be granted.

I. BACKGROUND

Pro se Plaintiff, a former prisoner, filed this action under 42 U.S.C. § 1983 asserting an

Eighth Amendment claim against Defendants for deliberate indifference to a setious medical

need. (See generally Am. Compl., Docket Entry 15.) Plaintiff alleges that on or about September

1, 2020, he visited the prison’s medical unit after submitting a sick call for complaints about

lower abdominal pain and incontinence. (See zd. at 7.)! After Plaintiff shared with Nurse Stutts

that he had a family history of cancer, Nurse Stutts told Plaintiff that his request for a blood

Unless otherwise noted, all citations herein refer to the page numbers at the bottom □□□□□□

hand cornet of the documents as they appeat in the Court’s CM/ECF system.

test and prostate exam would be denied, and “was not necessaty pet NC prison medical

policy.” (Id.) Nurse Stutts informed Plaintiff that she would relay his information to Dr.

Lance, but ultimately his request for an exam and blood work was denied. (I[d.) Plaintiff asked

Dr. Lance about cancer screening and shared his family history in which Dr. Lance replied

that he would speak with Nurse Stutts. (/d.)

At some point Plaintiff was transferred to another prison facility, obtained lab work by

the healthcare provider in early February 2021 at that facility, and by Match 2021, it was

confirmed that Plaintiff had stage 4 terminal prostate cancer. (Id.) Plaintiff alleges he is dying,

with 2-5 yeats to live. (Id.) Plaintiff alleges that Defendants were deliberately indifferent to

his serious medical needs and that his cancer could have been cuted upon early detection and

immediate medical attention. (Id.) Plaintiff seeks compensatory and punitive damages. (Id.)

II. DISCUSSION

Defendants contend that Plaintiffs Amended Complaint fails to state a claim upon

which relief can be granted. (Docket Entries 29, 30.) They also assert that they are entitled to

qualified immunity and that Plaintiffs claims for punitive damages should be dismissed as a

matter of law. (Docket Entry 30 at 8-9.) A motion to dismiss pursuant to Rule 12(b)(6) tests

the sufficiency of the complaint. Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999).

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 v. Iqbal, 556 U.S. 662, 678

(2009) (quoting Bell Atlantic v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial

plausibility when the plaintiff pleads factual content that allows the court to draw the

reasonable inference that the defendant is liable for the misconduct.” Id; see also Simmons v.

United Mortg. and Loan Inv., LLC, 634 F.3d 754, 768 (4th Cir. 2011) (‘On a Rule 12(b)(6)

motion, a complaint must be dismissed if it does not 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 true and consttues these facts in the light most favorable to the plaintiff,”

but does not consider “legal conclusions, elements of a cause of action, and bare assertions

devoid of factual enhancement[,] . . . unwattanted inferences, unreasonable conclusions, ot

arguments.” Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc, 591 F.3d 250, 255 (4th Cir. 2009)

(citations omitted). In other words, the standard requites a plaintiff to articulate facts, that,

when accepted as true, demonstrate the plaintiff has stated a claim that makes it plausible he

is entitled to relief. Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (quoting Igba/, 556

USS. at 678, and Twombly, 550 U.S. at 557).

A motion to dismiss pursuant to Rule 12(b)(6) must be read in conjunction with Federal

Rule of Civil Procedure 8(a)(2). Rule 8(a)(2) requires only “a short and plain statement of the

claim showing that the pleader is entitled to relief,” so as to “give the defendant fair notice of

what the ... claim is and the grounds upon which it rests... .” Twombly, 550 USS. at 555

(quoting Conley v. Gibson, 355 U.S. 41, 47 (1957). Rule 8 does not, however, unlock the doors

of discovery for a plaintiff armed with nothing more than conclusions. Fait notice is provided

by setting forth enough facts for the complaint to be “plausible on its face” and “raise a right

to relief above the speculative level on the assumption that all the allegations in the complaint

are true (even if doubtful in fact)... Jd. at 555 (internal citations omitted). “Rule 12(b)(6)

does not countenance ... . dismissals based on a judge’s disbelief of a complaint’s factual

allegations.” Id. at 556 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).

Pro se complaints ate to be liberally construed in assessing sufficiency under the Federal

Rules of Civil Procedure. Erickson v. Pardus, 551 U.S. 89, 94 (2007). However, even undet this

liberal consttuction, “generosity is not fantasy,” and the Court is not expected to plead a

plaintiffs claim for him. Bender v. Suburban Hosp., Inc., 159 F.3d 186, 192 (4th Cir. 1998).

Here, the undersigned concludes that Plaintiffs allegations are insufficient to state a

deliberate indifference claim against Defendants. Plaintiff's claims fall within the Eighth

Amendment’s ptohibition against cruel and unusual punishment. Eséelle v. Gambk, 429 US.

97, 104 (1976). The Eighth Amendment only prosctibes acts or omissions by prison officials

that are “sufficiently harmful to evidence deliberate indifference to setious medical needs.” Id.

at 106. Since Este/e, courts have developed a two-patt test for evaluating Section 1983 claims

alleging Eighth Amendment violations as to medical cate: courts first evaluate whether there

was evidence of a serious medical need and if so, then consider whether a defendant’s response

to that need amounted to deliberate indifference. See [ko v. Shreve, 535 F.3d 225, 241 (4th Cir.

2008).

In the prison context, a serious medical need exists if (1) a condition has been

diagnosed by a physician as mandating treatment or is so obvious that a layperson would

recognize the need for medical care; or if (2) a delay in treatment causes a lifelong handicap or

permanent loss. In order to prove deliberate indifference, a plaintiff must show that “the

official knows of and disregards an excessive tisk to inmate health or safety.” Farmer v. Brennan,

511 U.S. 825, 837 (1994). This part of deliberate indifference is a subjective standard, focusing

on the defendant’s conscious disregatd of a substantial risk of harm. Id. at 837-38; see also

Parish v. Cleveland, 372. F.3d 294, 303 (4th Cir. 2004). Additionally, the individual defendant

must tealize his actions were inappropriate as a result of his actual knowledge of risk to the

inmate. Parish, 372 F.3d at 303. This standatd is more than mere negligence, requiring actual

knowledge of the individual defendant’s own recklessness. Farmer, 511 U.S. at 836. Thus, it

is well settled that negligence or medical malpractice are not sufficient to establish deliberate

indifference. Eiste/e, 429 U.S. at 105-06. An “error of judgment” on the part of prison medical

staff, or “inadvertent failure to provide adequate medical cate,’ while perhaps sufficient to

suppott an action for malpractice, will not constitute a constitutional deprivation redressable

under § 1983.” Boyce v. Akizaduh, 595 F.2d 948, 953 (4th Cir. 1979) (quoting Estelle, 429 US.

at 105) (abrogated in part, on other grounds, Nedzke v. Wilkams, 490 U.S. 319 (1989)).

Here, Plaintiffs Amended Complaint (when viewed in the light most favorable to him

and with the benefit of all reasonable inferences) fails to allege a plausible deliberate

indifference claim against Defendants. Plaintiff sought and was denied testing and a prostate

exam, and unfortunately apptoximately six months later, it was determined that he suffered

from stage 4 terminal prostate cancer. “A delay in treatment may constitute deliberate

indifference if the delay exacerbated the injury or unnecessarily prolonged an inmate’s pain.”

Abraham v. McDonald, 493 F. App’x 465, 466 (4th Cir. 2012) (internal quotations and citation

omitted). Further, “[a] willful denial of medical treatment to a prisoner may tise to the level

of cruel and unusual punishment, and thus support a claim cognizable under [§] 1983.”

Vinnedge v. Gibbs, 550 F.2d 926, 928 (4th Cir. 1977). Even construed liberally however,

Plaintiff's allezations ate nothing more than a disagreement with a form of treatment that is

insufficient to tise to a level of a constitutional violation, see Wright v. Collins, 766 F.2d 841, 849

(4th Cir. 1985) (“Disagreements between an inmate and a physician over the inmate’s proper

medical care do not state a § 1983 claim unless exceptional circumstances ate alleged.”).

At most, Plaintiff alleges that Defendants were aware of his complaints about lower

abdominal pain and incontinence, and his purported family history of cancer. (See Am. Compl.

at 7.) Even with such knowledge, there is no allegation that Nurse Stutts did anything

unconstitutional or deprived Plaintiff of adequate medical care when she simply informed

Plaintiff of a prison policy and told him that she would pass along his complaints for review

to Dr. Lance. Thete is no allegation that Nutse Stutts did not pass such information along to

Dr. Lance; in fact, Plaintiff admits to speaking with Dr. Lance at some point. (See zd.) Further,

as to Dr. Lance, there ate no allegations that he acted with a conscious disregard of a

substantial risk of harm to Plaintiff. Farmer, 511 U.S. at 837; see also Gomez v. Davis, No. 7:20-

CV-00726, 2022 WL, 777064, at *6 (W.D. Va. Mar. 11, 2022) (internal quotations and citation

omitted) (“In the context of a claim related to the denial of medical treatment, a defendant

‘acts with deliberate indifference if he had actual knowledge of the [plaintiffs] serious medical

needs and the related risks, but nevertheless disregarded them.”); Brown v. Mitchell, 308 F. Supp.

2d 682, 708 (B.D. Va. 2004) (finding that the complaint did not “plead that [the prison

physician] possessed a subjectively known tisk as to either ailment[,]” and “there [wa]s nothing

in the Complaint that articulate[d] that [the prison physician] had a subjective knowledge of

the serious tisk presented by the [condition] that he diagnosed in [deceased inmate].”).

Ultimately, Plaintiff does not allege he received no medical care related to his

complaints of lower abdominal pain and incontinence, but rather inadequate cate in that he

did not get the blood test and prostate exam he wanted. (Am. Compl. at 7); see De‘lonia v.

Johnson, 708 F.3d 520, 526 (4th Cir. 2013) (“a prisoner does not enjoy a constitutional right to

the treatment of his or her choice....”’); see also Wilson v. Alamieda, No. CV 1-06-01393-JMR,

2009 WL 1034972, at *7 (E.D. Cal. Apr. 15, 2009) (unpublished) (“Although Plaintiff was

subsequently diagnosed with cancer, PlaintifPs disagreement with the treatment provided by

[the doctor] is not sufficient to state a claim for deliberate indifference to his medical needs.”’).

As Plaintiffs allegations essentially boil down to inadequacy of medical care which “would, at

most, constitute a claim of medical malpractice[,]” Wright, 766 F.3d at 849, he has failed to

allege sufficient facts to meet the subjective prong’s “particularly high bar to recovery.” □□□□

535 F.3d at 241. Therefore, Defendants’ motion to dismiss Plaintiff's Amended Complaint as

to his Eighth Amendment deliberate indifference claim should be granted and his Amended

Complaint should be dismissed.”

Defendants also atgue that they ate entitled to qualified immunity from Plaintiff's

actions where he has failed to allege a constitutional violation. (Docket Entry 30 at 8-9.)

Under the doctrine of qualified immunity, “government officials performing discretionary

* While Plaintiff has indicated in the Amended Complaint that he is suing Defendants in both

their official and individual capacities (see Am. Compl. at 2), any claims in their official capacity would

be subject to dismissal. “Although courts differ in their treatment of official capacity claims against

individuals employed by private companies that contract with jails ..., most treat such claims as claims

against the private employer rather than against some government office or agency for which the

ptivately-employed individuals provide services.” Riddick v. Watson, 503 F. Supp. 3d 399, 414 □□□□

Va. 2020). Here, the Amended Complaint fails to properly allege an unconstitutional policy or custom

of Defendants’ private employer. See McAllister v. Wellpath Health Care, No. 1:19CV1034, 2020 WL

2813386, at *4 (M.D.N.C. May 29, 2020) (unpublished) (“Conclusory allegations of deficient policies

ot customs do not suffice to state a viable claim for relief.”). Alternatively, if treated as official capacity

claims as state officers, “neither a State nor its officials acting in their official capacities are ‘persons’

under § 1983.” Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71 (1989). Moreover, “state sovereign

immunity bats a claim for damages against state officers in their official capacities[.}” Turner □□ Sgt.

Turner, No. 1:14CV379, 2015 WL 3463487, at *5 n.1 (M.D.N.C. June 1, 2015) (unpublished).

functions generally are shielded from liability for civil damages insofar as their conduct does

not violate clearly established statutory or constitutional rights of which a reasonable person

would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). “Qualified immunity may

be raised in a motion to dismiss.” Jenkins v. Medjord, 119 F.3d 1156, 1159 (4th Cir. 1997). In

the instant case, having found Plaintiff has not alleged valid constitutional violations, Plaintiff's

claims against Defendants are subject to dismissal based on qualified immunity as well. See

Jackson v. Holley, 666 Fed. Appx. 242, 244-45 (4th Cir. 2016) (holding that the “conduct about

which [plaintiff] complains [did] not amount to an Eighth Amendment violation,” thus

“(defendant] was entitled to qualified immunity and her motion to dismiss should have been

granted by the district court”).

To the extent Plaintiff seeks punitive damages, that also fails. “The callous indifference

required for punitive damages is essentially the same as the deliberate indifference required for

a finding of liability on the § 1983 claim.” Cooper v. Dyke, 814 F.2d 941, 948 (4th Cir. 1987).

Thus, because of the noted deficiencies as to his Eighth Amendment deliberate indifference

claim, Plaintiffs claim for punitive damages should also be dismissed.

Ii. CONCLUSION

For the reasons stated herein, IT IS RECOMMENDED that Defendants’ Amended

Motion to Dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure (Docket

Entry 29) be GRANTED, and Plaintiffs claims be dismissed without prejudice.

Quy elite

United States Magistrate Judge

July 7, 2023