# PICKETT v. LANCE

> District Court, M.D. North Carolina · July 7, 2023

URL: https://www.frixlaw.com/law-library/cases/10254377

## Case

- **Court:** District Court, M.D. North Carolina
- **Decided:** July 7, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10254377

## How later opinions describe it (automated extraction)

- 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”

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10254377. Public record. Not legal advice.