Opinion

McClary v. Kalinski

Court
District Court, W.D. North Carolina
Filed
Aug 21, 2019
Cited by
0 cases
Authority
More cited than 24.7%

“Deliberate indifference is a very high standard — a showing of mere negligence will not meet it.”

How later courts described this case

  • “Deliberate indifference is a very high standard — a showing of mere negligence will not meet it.”
  • “[I]nmates need not plead exhaustion, nor do they bear the burden of proving it.”

Written by the judges who cited it.

The opinion

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF NORTH CAROLINA

STATESVILLE DIVISION

CIVIL CASE NO. 5:18-cv-00102-MR

RONALD McCLARY, )

)

Plaintiff, )

) MEMORANDUM OF

vs. ) DECISION AND ORDER

)

MARTA KALINSKI, et al., )

)

Defendants. )

___________________________ )

THIS MATTER comes before the Court on Defendant Marta Kalinski

M.D.’s Motion to Dismiss [Doc. 25].

I. BACKGROUND

The Plaintiff Ronald McClary, proceeding pro se, brings this action

pursuant to 42 U.S.C. § 1983 for the violation of his civil rights while

incarcerated at the Alexander Correctional Institution (“Alexander C.I.”).

[Doc. 1]. The Complaint asserts claims of deliberate indifference to a serious

medical need against Alexander C.I. employees Marta Kalinski, M.D. (“Dr.

Kalinski”), Christina Fox (“Nurse Supervisor Fox”), and Cassandra S. Lor

(“Dietician Lor”). [Doc. 10]. Dr. Kalinski now moves to dismiss the claims

against her pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.

[Doc. 25].

II. STANDARD OF REVIEW

The central issue for resolving a Rule 12(b)(6) motion is whether the

claims state a plausible claim for relief. See Francis v. Giacomelli, 588 F.3d

186, 189 (4th Cir. 2009). In considering the Defendant’s motion, the Court

accepts the allegations in the Complaint as true and construes them in the

light most favorable to the Plaintiff. Nemet Chevrolet, Ltd. v.

Consumeraffairs.com, Inc., 591 F.3d 250, 253 (4th Cir. 2009); Giacomelli,

588 F.3d at 190-92. When considering a motion to dismiss, the Court is

obligated to construe a pro se complaint liberally, “however inartfully

pleaded[.]” Booker v. S.C. Dep't of Corr., 855 F.3d 533, 540 (4th Cir. 2017),

cert. denied, 138 S. Ct. 755 (2018) (quoting Erickson v. Pardus, 551 U.S. 89,

94 (2007)), cert. denied, 138 S. Ct. 755 (2018).

Although the Court must accept any well-pleaded facts as true and

construe such facts liberally, it is not required to accept “legal conclusions,

elements of a cause of action, and bare assertions devoid of further factual

enhancement....” Consumeraffairs.com, 591 F.3d at 255; see also

Giacomelli, 588 F.3d at 189.

The claims need not contain “detailed factual allegations,” but must

contain sufficient factual allegations to suggest the required elements of a

cause of action. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007);

see also Consumeraffairs.com, 591 F.3d at 256. “[A] formulaic recitation of

the elements of a cause of action will not do.” Twombly, 550 U.S. at 555.

Nor will mere labels and legal conclusions suffice. Id. Rule 8 of the Federal

Rules of Civil Procedure “demands more than an unadorned, the defendant-

unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009).

The complaint is required to contain “enough facts to state a claim to

relief that is plausible on its face.” Twombly, 550 U.S. at 570, 127 S. Ct. at

1974; see also Consumeraffairs.com, 591 F.3d at 255. “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

alleged.” Iqbal, 556 U.S. at 678; see also Consumeraffairs.com, 591 F.3d at

255. The mere possibility that a defendant acted unlawfully is not sufficient

for a claim to survive a motion to dismiss. Consumeraffairs.com, 591 F.3d

at 256; Giacomelli, 588 F.3d at 193. Ultimately, the well-pled factual

allegations must move a plaintiff’s claim from possible to plausible.

Twombly, 550 U.S. at 570; Consumeraffairs.com, 591 F.3d at 256.

III. FACTUAL BACKGROUND

Construing the well-pled factual allegations of the Complaint as true

and drawing all reasonable inferences in the Plaintiff’s favor, the following is

a summary of the relevant facts.

At the time of the events alleged, the Plaintiff was a state prisoner in

the custody of the North Carolina Department of Public Safety – Division of

Adult Correction at Alexander C.I. [Doc. 1 at 2]. The Plaintiff alleges that Dr.

Kalinski, while acting in her official capacity, directed that the Plaintiff be fed

Nutraloaf for a period of seven days, despite knowing that the Plaintiff

required a special diet due to a number of medical conditions, including

hypertension, pre-diabetes, GERD, and H. Pylori. [Id. at 4]. The Plaintiff

alleges that as a result of the foregoing conduct by Dr. Kalinski, he

experienced stomach problems, pain, loss of weight, and increased

urination. [Doc. 1 at 8].

The Plaintiff further alleges that from the time that he arrived at

Alexander C.I. on May 4, 2018, to the date of the filing of the Complaint, he

had not been seen by Dr. Kalinski, even though he has an “enlarged prostate

and a bladder problem” and had requested a series of sick calls. [Id. at 4].

IV. DISCUSSION

A. Plaintiff’s Claim of Deliberate Indifference

Dr. Kalinski first moves to dismiss the claims against her on the

grounds that the Plaintiff has failed to state a claim for deliberate indifference

under the Eighth Amendment.

Under 42 U.S.C. § 1983, a plaintiff may bring a cause of action for a

violation of the “cruel and unusual punishments” clause of the Eighth

Amendment to the United States Constitution for deliberate indifference to a

prisoner’s serious medical needs. Estelle v. Gamble, 429 U.S. 97, 104-05

(1976). To prove such a claim, the plaintiff must show: (1) that he had a

serious medical need, which is an objective inquiry, and (2) that the

defendant acted with deliberate indifference to that need, which is a

subjective inquiry. See Iko v. Shreve, 535 F.3d 225, 241 (4th Cir. 2008). A

“serious medical need” is “one that has been diagnosed by a physician as

mandating treatment or one that is so obvious that even a lay person would

easily recognize the necessity for a doctor's attention.” Id. (citation and

internal quotation marks omitted).

To be found liable under the Eighth Amendment, a prison official must

know of and consciously or intentionally disregard “an excessive risk to

inmate health or safety.” Farmer v. Brennan, 511 U.S. 825, 837 (1994);

Johnson v. Quinones, 145 F.3d 164, 167 (4th Cir. 1998). A mere delay or

interference with treatment can be sufficient to constitute a violation of the

Eighth Amendment. Smith v. Smith, 589 F.3d 736, 739 (4th Cir. 2009).

However, allegations that might be sufficient to support negligence and

medical malpractice claims do not, without more, rise to the level of a

cognizable § 1983 claim. Estelle, 429 U.S. at 106; Grayson v. Peed, 195

F.3d 692, 695 (4th Cir. 1999) (“Deliberate indifference is a very high standard

— a showing of mere negligence will not meet it.”).

In the Complaint, the Plaintiff alleges that he suffers from a number of

serious, chronic, and documented medical conditions that required a special

diet. He alleges that Defendant Kalinski approved him for a seven-day

Nutraloaf diet despite those conditions while knowing that the Nutraloaf diet

“would and did harm [the Plaintiff’s] health.” [Doc. 1 at 4]. Based on these

allegations, the Plaintiff has sufficiently alleged that Dr. Kalinski was

deliberately indifferent to his serious medical needs by approving him for a

Nutraloaf diet in light of those conditions, that she did not follow up to check

on him, and that his health deteriorated as a result of the Nutraloaf diet.

Accordingly, Dr. Kalinski’s Motion to Dismiss for failure to state a deliberate

indifference claim will be denied.

B. Qualified Immunity

Dr. Kalinski also argues in her motion to dismiss that, to the extent that

Plaintiff asserts any claims against her in her individual capacity, such claims

are barred by the doctrine of qualified immunity because Plaintiff cannot

establish any constitutional violation. For the reasons set forth above, the

Court cannot conclude at this stage that no constitutional violation occurred.

Accordingly, Dr. Kalinski’s motion to dismiss based on qualified immunity is

also denied.

C. Exhaustion of Administrative Remedies

Next, Dr. Kalinski argues that dismissal of the claims against her is

appropriate because the Plaintiff has failed to exhaust his administrative

remedies.

The Prison Litigation Reform Act (“PLRA”) requires a prisoner to

exhaust any “available” administrative remedies before filing a section 1983

action. 42 U.S.C. § 1997e(a). The PLRA’s exhaustion requirement applies

to all inmate suits about “prison circumstances or occurrences.” Porter v.

Nussle, 534 U.S. 516, 520 (2002). The exhaustion requirement is mandatory

in cases under § 1997e(a). Id. at 524. Although the PLRA does not define

the term “available,” the Fourth Circuit has held that “an administrative

remedy is not considered to have been available if a prisoner, through no

fault of his own, was prevented from availing himself of it.” Moore v.

Bennette, 517 F.3d 717, 725 (4th Cir. 2008).

Although exhaustion of administrative remedies is a mandatory

prerequisite to filing suit, an inmate is not required to allege exhaustion of

remedies in his complaint. Jones v. Bock, 549 U.S. 199, 216 (2007); see

also Moore, 517 F.3d at 725 (“[I]nmates need not plead exhaustion, nor do

they bear the burden of proving it.”). Rather, the failure to exhaust

administrative remedies is an affirmative defense that a defendant must

raise. Jones, 549 U.S. at 216. Only where the failure to exhaust is “apparent

from the face of [the] complaint” may the Court dismiss an action for failure

to exhaust administrative remedies. Custis v. Davis, 851 F.3d 358, 361 (4th

Cir. 2017).

Here, the Plaintiff alleges that he attempted to file a grievance but that

the grievance “got ripped up” by a staff member. [Doc. 1 at 11]. Accepting

these allegations as true and drawing all reasonable inferences in the

Plaintiff’s favor, the Court cannot say that it is “apparent” on the face of the

Complaint that the Plaintiff failed to exhaust the administrative remedies

available to him. Accordingly, Dr. Kalinski’s motion to dismiss based on the

Plaintiff’s failure to exhaust administrative remedies is denied.

D. Claims of Medical Malpractice

Finally, Dr. Kalinski argues that, to the extent that the Plaintiff’s

Complaint purports to make any claims for medical negligence under North

Carolina law, such claims must be dismissed due to the Plaintiff’s failure to

comply with Rule 9(j) of the North Carolina Rules of Civil Procedure.

The Complaint does not appear to contain a claim of medical

negligence or malpractice and the Court did not exercise supplemental

jurisdiction over any such claim in its Order on initial review. [See Doc. 10].

Further, in responding to the Motion to Dismiss, the Plaintiff expressly

disclaims any attempt to state a claim for medical malpractice. [See Doc. 30

at 4 (“Plaintiff has stated a claim of deliberate indifference and (not) medical

malpractice.”)].

As the Plaintiff has not attempted to state any medical malpractice

claims under North Carolina law and in fact has disclaimed making any such

claims, Dr. Kalinski’s motion to dismiss any medical malpractice claims

asserted in the Complaint is denied as moot.

V. CONCLUSION

For all the foregoing reasons, Dr. Kalinski’s Motion to Dismiss is

denied.

ORDER

IT IS, THEREFORE, ORDERED that Defendant Marta Kalinski M.D.’s

Motion to Dismiss [Doc. 25] is DENIED.

IT IS SO ORDERED.

Signed: August 21, 2019

a Reidinger □ ve

United States District Judge oes

10

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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