Griffin v. Hollar

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NORTH CAROLINA

STATESVILLE DIVISION

5:19-cv-00049-FDW

MATTHEW JAMES GRIFFIN, )

)

Plaintiff, )

)

vs. ) ORDER

)

FNU HOLLAR, et al., )

)

Defendants. )

__________________________________________)

THIS MATTER is before the Court on initial review of Plaintiff’s Complaint, filed under

42 U.S.C. § 1983. [Doc. 1]. See 28 U.S.C. §§ 1915(e)(2); 1915A. The Plaintiff is proceeding in

forma pauperis. [Doc. 2, 7].

I. BACKGROUND

Pro se Plaintiff Matthew James Griffin (“Plaintiff”) is currently a New Mexico state inmate

of the Penitentiary of New Mexico located in Sante Fe, New Mexico. Plaintiff filed this action on

April 30, 2019, pursuant to 42 U.S.C. § 1983. [Doc. 1]. Plaintiff claims that Defendants were

deliberately indifferent to his serious medical needs in violation of the Eighth Amendment to the

U.S. Constitution while Plaintiff was housed at Alexander Correctional Institution (“Alexander”)

in Taylorsville, North Carolina. Plaintiff also states claims for violation of the Americans with

Disabilities Act (“ADA”), for retaliation in violation of Section 504 of the Rehabilitation Act of

1973 (“Rehab Act”), and a claim for negligence under the North Carolina Tort Claims Act, N.C.

Gen. Stat. § 143-291, et seq. In his Complaint, Plaintiff names the following individuals as

Defendants in this matter: (1) FNU Hollar, identified as a Sergeant at Alexander, (2) Marilyn

Gamewell, identified as a Nurse Practitioner at Alexander; and (3) Does #1 through 20, identified

as correctional officers, a sergeant, an ADA Coordinator, and nurses at Alexander at all relevant

times. [Doc. 1 at 3-4].

Plaintiff’s allegations, which are taken as true for purposes of initial review, can be

summarized as follows:

Plaintiff is a handicapped prisoner of the State of New Mexico. [Doc. 1 at ¶ 29]. Plaintiff

has a serious visual impairment, which has been diagnosed by a medical doctor as “strabismus

with large angle alternating exotropia.” [Id. at ¶ 31]. This impairment causes Plaintiff to suffer

double vision, uncontrolled eye movement (nystagmus), eye fatigue, and loss of all depth

perception. [Id.]. Plaintiff’s vision impairment substantially limits his ability to ambulate safely,

read, work, drive, navigate uneven terrain, climb stairs, safely perform manual tasks involving

eye-hand coordination, and to see and perceive his surroundings correctly. [Id. at ¶ 32]. Plaintiff

is disabled within the meaning of the ADA and the Rehab Act. [Id. at ¶ 34].

On or about October 9, 2015, Plaintiff was transferred to the custody of the North Carolina

Department of Public Safety (NCDPS). [Id. at ¶ 29]. In December 2015, the NCDPS began

housing Plaintiff in an ADA compliant handicapped cell consistent with the instructions of NCDPS

healthcare providers. [Id. at ¶ 35]. On March 26, 2018, Plaintiff was examined by

ophthalmologist Dunan E. Berry, M.D., who recommended that Plaintiff be housed in a ground

floor handicapped cell, be given a bottom bunk, and not have to use stairs. [Id. at ¶ 36]. Dr. Berry

also wrote that Plaintiff would benefit from a night light. [Id.].

On June 12, 2018, Plaintiff was evaluated by Marta Kalinski, M.D., at Main Medical at

Alexander with regard to Plaintiff’s special needs. In the medical record, Dr. Kalinski wrote,

“patient has elevated risk of falls or other type of accidental body injury.” Dr. Kalinski, who is

Plaintiff’s primary care provider, also ordered, “[d]ue to vision impairment, patient needs to have

changes placed in Medical Duty Status including handicapped cell, no climbing, falls prevention,

bottom bunk, no stairs, no work around hot or sharp objects, avoidance of uneven terrain, no

driving.” [Id. at ¶ 37].

On or about October 14, 2018, Defendant Gamewell, a nurse practitioner, deleted “night

light” from Plaintiff’s Medical Duty Status without notifying Plaintiff. Plaintiff’s other

limitations, restrictions and accommodations remained unchanged at this time. [Id. at ¶ 38]. On

November 8, 2018, Defendant Hollar transferred Plaintiff from a handicapped cell with handrails

and a functioning night light to a non-handicapped cell with an obstructed night light. [Id. at 42].

This transfer was from regular population to segregation. [Id. at ¶ 44]. On the same day, Plaintiff

showed Defendant Hollar his June 13, 2018 and October 9, 2018 Medical Duty Status reports

requiring a handicapped cell and falls prevention measures to which Defendant Hollar replied,

“Tough shit.” [Id. at ¶ 43]. At this time, there were at least two and up to four handicapped cells

in segregation that were being used to house prisoners who were not handicapped. [Id. at ¶¶ 45-

46].

On November 8 through 10, 2018, Plaintiff showed Doe Defendants 1 through 171 his

Medical Duty Status and requested a handicapped cell with an unobstructed night light and

handrails. [Id. at ¶¶ 47-52]. These Defendants all refused to transfer Plaintiff to a handicapped

cell and Doe Defendants 12 through 17 also refused to contact the Alexander Officer-in-Charge

(OIC), who had the authority to immediately transfer Plaintiff to a handicapped cell. [Id.]. As for

1 In his Complaint, Plaintiff appears to identify Doe Defendants 1 through 11 by last name. Namely, in

Paragraphs 47 through 51, Plaintiff alleges their last names as Massagee, Hensley, Walter, Williams,

Delozier, Strohl, Maudeville, Copeland, Davis, Stevenson, and Lowery, respectively. [Doc. 1 at ¶¶ 47-51].

Given that it appears that Plaintiff knows the identify of these Defendants, it is unclear why plaintiff named

them as Doe Defendants in the Complaint. Plaintiff must move to substitute the proper identities of these

Doe Defendants if he wishes his claims against them to proceed. He shall identify Doe Defendant 1, for

instance, as “FNU Massagee,” and so on.

Doe Defendants 18 through 20, Plaintiff alleges these Defendants are Alexander officials “who

will be identified through discovery and who authorized the housing of Plaintiff in a non-

handicapped cell contrary to the medical order of Dr. Kalinski.” [Id. at ¶¶ 53-55].

On November 11, 2018, at approximately 4 a.m., Plaintiff fell while in the non-

handicapped cell, injuring his right foot, right knee, left hip, back, and right shoulder. [Id. at ¶ 56].

Plaintiff required medical attention and prescription medication. As of the time of filing his

Complaint, Plaintiff alleged that his injuries remained “unresolved” and his medical care was

“ongoing.” [Id. at ¶ 57]. Plaintiff further alleges that each of the Defendants were aware of the

risk to Plaintiff and of the medical orders to house Plaintiff in a handicapped cell, the “falls

prevention” order, and the need for Plaintiff’s cell to have handrails to prevent falling. [Id. at ¶¶

60-62]. Despite being aware of the substantial risk of harm to Plaintiff, Defendants disregarded

the risk of harm and contrary to medical orders, housed Plaintiff in a “non-handicapped cell

without handrails that had an obstructed night light which caused Plaintiff to be injured in a fall at

night.” [Id. at ¶ 64].

Plaintiff seeks monetary and injunctive relief and the recovery of costs and fees, if any.

[Id. at 23].

II. STANDARD OF REVIEW

Because Plaintiff is proceeding in forma pauperis, the Court must review the Complaint to

determine whether it is subject to dismissal on the grounds that it is “frivolous or malicious [or]

fails to state a claim on which relief may be granted.” 28 U.S.C. § 1915(e)(2). Furthermore, under

§ 1915A the Court must conduct an initial review and identify and dismiss the complaint, or any

portion of the complaint, if it is frivolous, malicious, or fails to state a claim upon which relief may

be granted; or seeks monetary relief from a defendant who is immune to such relief.

In its frivolity review, this Court must determine whether the Complaint raises an

indisputably meritless legal theory or is founded upon clearly baseless factual contentions, such as

fantastic or delusional scenarios. Neitzke v. Williams, 490 U.S. 319, 327-28 (1989). Furthermore,

a pro se complaint must be construed liberally. Haines v. Kerner, 404 U.S. 519, 520 (1972).

However, the liberal construction requirement will not permit a district court to ignore a clear

failure to allege facts in his Complaint which set forth a claim that is cognizable under federal law.

Weller v. Dep’t of Soc. Servs., 901 F.2d 387 (4th Cir. 1990).

III. DISCUSSION

Plaintiff asserts three claims in his Complaint: (1) deliberate indifference to Plaintiff’s

serious medical needs in violation of Plaintiff’s rights under the Eighth Amendment to the U.S.

Constitution; (2) violation of the Americans with Disabilities Act (“ADA”) and for retaliation in

violation of Section 504 of the Rehabilitation Act of 1973 (“Rehab Act”); and (3) negligence under

the North Carolina Tort Claims Act, N.C. Gen. Stat. § 143-291, et seq.

A. Eighth Amendment

Claims under 42 U.S.C. § 1983 based on an alleged lack of or inappropriate medical

treatment fall within the Eighth Amendment’s prohibition against cruel and unusual punishment.

Estelle v. Gamble, 429 U.S. 97, 104 (1976). To state a claim under the Eighth Amendment, a

plaintiff must show a “deliberate indifference to serious medical needs” of the inmate. Id.

“Deliberate indifference requires a showing that the defendants actually knew of and disregarded

a substantial risk of serious injury to the detainee or that they actually knew of and ignored a

detainee’s serious need for medical care.” Young v. City of Mt. Ranier, 238 F.3d 567, 575-76 (4th

Cir. 2001) (citations omitted). “To establish that a health care provider’s actions constitute

deliberate indifference to a serious medical need, the treatment must be so grossly incompetent,

inadequate, or excessive as to shock the conscience or to be intolerable to fundamental fairness.”

Miltier v. Beorn, 896 F.2d 848, 851 (4th Cir. 1990).

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.”). 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). “[E]ven if a prison doctor is mistaken or negligent

in his diagnosis or treatment, no constitutional issue is raised absent evidence of abuse, intentional

mistreatment, or denial of medical attention.” Stokes v. Hurdle, 393 F. Supp. 757, 762 (D. Md.

1975), aff’d, 535 F.2d 1250 (4th Cir. 1976). The constitutional right is to medical care. No right

exists to the type or scope of care desired by the individual prisoner. Id. at 763. Therefore, a

disagreement “between an inmate and a physician over the inmate’s proper medical care [does]

not state a § 1983 claim unless exceptional circumstances are alleged.” Wright v. Collins, 766

F.2d 841, 849 (4th Cir. 1985) (dismissing the plaintiff’s § 1983 claim against a defendant physician

for allegedly discharging the plaintiff too early from a medical clinic, as such claim did not rise to

the level of deliberate indifference but would, “at most, constitute a claim of medical

malpractice”).

“[T]o establish a claim of deliberate indifference against non-medical prison personnel, a

plaintiff must demonstrate that the official was personally involved in the treatment or denial of

treatment, or that they deliberately interfered with the treatment, or that they tacitly authorized or

were indifferent to the medical provider’s misconduct.” Ballenger v. Crawford, No. 3:15-cv-

12558, 2016 WL 8710023, at *9 (S.D.W. Va. Aug. 5, 2016) (citing Miltier v. Beorn, 896 F.2d 848,

854 (4th Cir. 1990)).

The Court finds that, taking Plaintiff’s allegations as true, and drawing all reasonable

inferences in his favor, Plaintiff’s claims against all Defendants for deliberate indifference to

serious medical needs are not clearly frivolous. Thus, this claim survives initial review

B. ADA and Rehab Act

Plaintiff also brings claims against Defendants for violation of his rights under the

Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., and Section 504 of the

Rehabilitation Act of 1973 by discriminating against him based on his disability, refusing to

provide Plaintiff with reasonable accommodations, and retaliating against Plaintiff by refusing to

transfer Plaintiff to a handicapped cell solely because Plaintiff is disabled and was complaining of

not being provided reasonable accommodations under the ADA. [Doc. 1 at ¶¶ 78-84].

Taking Plaintiff’s allegations as true for the purposes of initial review, and construing all

inferences in Plaintiff’s favor, the Court finds that the Plaintiff’s allegations of ADA and Rehab

Act violations against Defendants survive initial review. See Pennsylvania Dep’t of Corr. v.

Yeskey, 524 U.S. 206, 210 (1998) (holding that the ADA applies to state prisons); Latson v.

Clarke, 249 F.Supp.3d 838, 857 (W.D. Va. Apr. 20, 2017) (holding prisoner in § 1983 action

sufficiently stated claims for ADA and Rehab Act violations).

C. North Carolina Tort Claims Act

Plaintiff asserts a claim against the against all Defendants under the North Carolina Tort

Claims Act (“the Act”) based on alleged negligence of Defendants as employees of the NCDPS

for the same conduct that forms the basis of Plaintiff’s deliberate indifference claim. [Doc. 1 at ¶¶

86-99].

This Court lacks jurisdiction to hear claims brought under the Act.

Under the well-settled doctrine of sovereign immunity, a state may

not be sued in its own courts or elsewhere unless by statute it has

consented to be sued or has otherwise waived its immunity from

suit. Likewise, an agency of the state may only be sued when it has

authorized such suits by statute. Statutes constituting such waiver

under North Carolina law must be strictly construed.

Oliver v. Baity, 208 F.Supp.3d 681, 693-94 (4th Cir. 2016) (internal quotation marks and citations

omitted). Here, the statute language specifically confers jurisdiction over claims brought under

the Act on the North Carolina Industrial Commission. See N.C. Gen. Stat. § 143-291(a) (“The

North Carolina Industrial Commission is hereby constituted a court for the purpose of hearing and

passing upon tort claims against … agencies of the State.”). This Act requires that plaintiffs “who

wish to sue the state for tortious acts must bring their claims before the North Carolina Industrial

Commission, not the district court.” Alston v. N.C. A & T State Univ., 304 F.Supp.2d 774, 783

(M.D.N.C. Feb. 6, 2004).

As such, Plaintiff’s claim under the Act against Defendants will be dismissed.

The Court also notes that John Doe claims are permissible only against “real, but

unidentified, defendants.” Schiff v. Kennedy, 691 F.2d 196, 197 (4th Cir. 1982). The designation

of a John Doe defendant “is generally not favored in federal courts; it is appropriate only when the

identity of the alleged defendant is not known at the time the complaint is filed and the plaintiff is

likely to be able to identify the defendant after further discovery.” Njoku v. Unknown Special

Unit Staff, 217 F.3d 840, 840 (4th Cir. 2000).

With respect to Doe Defendants 1 through 11, Plaintiff has identified these Defendants in

the body of the Complaint. Plaintiff must timely move to substitute the real identities of these

Defendants if he wishes them to remain Defendants in this matter. As to Doe Defendants 12

through 20, Plaintiff has alleged, generally, how these Doe Defendants were involved in the acts

and omissions alleged in Plaintiff’s Complaint. As such, the Court will allow these Defendants to

remain named by their Doe designations at this time. Plaintiff, however, must move to substitute

their real names when Plaintiff is able to identify them during discovery.

Finally, because Plaintiff has been transferred from Alexander to the Penitentiary of New

Mexico, Plaintiff’s claims for injunctive relief are moot and will be dismissed. Incumaa v. Ozmint,

507 F.3d 281, 286-87 (4th Cir. 2007).

IV. CONCLUSION

In sum, the Complaint survives initial review as to all Defendants on Plaintiff’s claims

under the Eighth Amendment, the ADA and Rehab Act under 28 U.S.C. § 1915(e) and 28 U.S.C.

§ 1915A. Plaintiff’s claim under the N.C. Tort Claims Act will be dismissed.

IT IS, THEREFORE, ORDERED that:

1. Plaintiff’s Complaint [Doc. 1] survives initial review under § 1915(e) and 28 U.S.C. §

1915A as to all Defendants, except that Plaintiff’s claim under the N.C. Tort Claims

Act shall be dismissed.

2. Plaintiff shall move within twenty (20) days of this Order to substitute the real identities

of Doe Defendants 1 through 11. If Plaintiff fails to timely substitute the real identifies

of these Defendants, the Court may dismiss them without prejudice and without further

notice to the Plaintiff.

3. The Clerk is directed to mail 20 summons forms to Plaintiff for Plaintiff to fill out and

identify Defendants Hollar, Gamewell, and Does 1 through 11 in the summonses for

service of process, and then return the summonses to the Court. (The seven (7) extra

forms are for Plaintiff’s future use in the event he identifies any other Doe Defendants

through discovery or otherwise.). Plaintiff is required to provide the necessary

information for the U.S. Marshal to effectuate service. Once the Court receives the

summonses from Plaintiff, the Clerk shall then direct the U.S. Marshal to effectuate

service upon Defendants Hollar, Gamewell, and Does 1 through 11.?

IT IS SO ORDERED.

Signed: November 26, 2019

Frank D. Whitney é □

Chief United States District Judge □□□□□

* The Court notes that Local Civil Rule 4.3 does not govern the procedure for service of process in this

matter because Plaintiff alleges, and it appears correctly, that he was and is not a North Carolina State

prisoner, but rather a prisoner of the State of New Mexico who was temporarily housed in a North Carolina

correctional facility. See N.C. Gen. Stat. § 148-119, et seq.

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