Gunter v. Doe

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF NORTH CAROLINA

ASHEVILLE DIVISION

CIVIL CASE NO. 1:20-cv-00029-MR

KEVIN CRAWFORD GUNTER, )

)

Plaintiff, )

)

vs. )

)

JOHN DOE, et al., ) ORDER

)

Defendants. )

_______________________________ )

THIS MATTER is before the Court on Plaintiff’s “Memorandum” filed in

response to the Court’s initial review of the Complaint [Doc. 12]. Also

pending is a Motion for Reconsideration of the Order denying Plaintiff’s

request for the appointment of counsel [Doc. 11]. Plaintiff is proceeding in

forma pauperis. [See Doc. 8].

I. BACKGROUND

On January 27, 2020,1 pro se incarcerated Plaintiff filed this civil rights

action pursuant to 42 U.S.C. § 1983 in which he asserts claims of deliberate

difference and medical negligence with regards to incidents that allegedly

occurred at Avery-Mitchell Correctional Institution in 2016. [Doc. 1]. Plaintiff

1 See Houston v. Lack, 487 U.S. 266, 276 (1988) (establishing the prisoner mailbox rule);

Lewis v. Richmond City Police Dep’t, 947 F.2d 733 (4th Cir. 1991) (applying the prisoner

mailbox rule to a § 1983 case).

names as Defendants: the North Carolina Department of Public Safety

(“NCDPS”); John Doe, a supervisor at Avery-Mitchell C.I.; and Keith

D’Amico, a physician’s assistant at Avery-Mitchell C.I.

Plaintiff alleges that he filed a sick call around January 15, 2016

complaining that he was dizzy and had blood in his urine. He alleges that he

filed a second sick call on January 30, 2016, stating that he was dizzy,

“physically sick,” and could not hear in his left ear. [Doc. 1 at 5]. Plaintiff

was seen by Defendant D’Amico several days later. Defendant D’Amico

allegedly told Plaintiff that his problem was not related to his ear and that

Plaintiff was going to be seen by an ear, nose, and throat doctor, but that

never happened. Plaintiff alleges that he went back to medical on March 18,

2016, at which point he was completely deaf in his left ear. Plaintiff still

received no treatment. Plaintiff alleges that he was finally shipped to Central

Prison on June 28, 2016, where he saw Dr. Andrew Jarchow who said that

Plaintiff’s hearing loss was due to a viral infection and was permanent. Dr.

Jarchow further stated that if Defendant D’Amico had sent Plaintiff sooner,

his hearing could have been saved.

Plaintiff is now completely deaf in his left ear. Plaintiff further alleges

that Defendant D’Amico told Plaintiff that he “did not qualify for hearing

assistance.”2 [Doc. 1 at 5]. Plaintiff seeks injunctive relief, compensatory

damages, and a jury trial.

Because Defendant D’Amico’s allegedly inadequate care occurred in

2016, the Court issued an Order requiring Plaintiff to file a memorandum

explaining why his Complaint is timely. [Doc. 10]. The Court also denied

Plaintiff’s Motion for the Appointment of Counsel [Doc. 3] because Plaintiff

failed to demonstrate the existence of extraordinary circumstances. [Doc.

10]. Plaintiff filed a Memorandum [Doc. 12] in which he appears to assert

that his Complaint is timely because the cause of action did not accrue until

October 30, 2017, and that the continuing violation doctrine and equitable

tolling apply. Plaintiff has also filed a Motion for Reconsideration of the Order

denying his request for the appointment of counsel. [Doc. 11].

II. STANDARD OF REVIEW

Because Plaintiff is proceeding in forma pauperis, the Court must

review the Amended Complaint to determine whether it is subject to

dismissal on the grounds that it is “(i) frivolous or malicious; (ii) fails to state

a claim on which relief may be granted; or (iii) seeks monetary relief against

a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B); see

2 Plaintiff does not describe the “hearing assistance” he sought from Defendant D’Amico

or the timing of this request.

28 U.S.C. § 1915A (requiring frivolity review for prisoners’ civil actions

seeking redress from governmental entities, officers, or employees).

In its frivolity review, a court must determine whether a 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

To state a claim under § 1983, a plaintiff must allege that he was

“deprived of a right secured by the Constitution or laws of the United States,

and that the alleged deprivation was committed under color of state law.”

Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999). Claims under

§ 1983 are directed at “persons” acting under the color of state law who

violated the plaintiff’s constitutional rights. 42 U.S.C. § 1983. “[N]either 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).

As a preliminary matter, it appears that Plaintiff is attempting to name

NCDPS as a Defendant in this action. NCDPS is not a “person” who is

amenable to suit under § 1983, and therefore, the Complaint will be

dismissed insofar as Plaintiff attempts to name NCDPS as a Defendant. See

Will, 491 U.S. at 71.

Plaintiff also names as a Defendant a John Doe superintendent of

Avery-Mitchell C.I. However, Plaintiff does not make any factual allegations

whatsoever against that Defendant. See generally Fed. R. Civ. P. 8(a)(2) (a

short and plain statement of a claim is required); Simpson v. Welch, 900 F.2d

33, 35 (4th Cir. 1990) (conclusory allegations, unsupported by specific

allegations of material fact are not sufficient); Dickson v. Microsoft Corp., 309

F.3d 193, 201-02 (4th Cir. 2002) (a pleader must allege facts, directly or

indirectly, that support each element of the claim). Therefore, to the extent

that Plaintiff attempts to state any claims against Defendant John Doe, they

will be dismissed without prejudice.

The Eighth Amendment prohibits punishments that “involve the

unnecessary and wanton infliction of pain.” Estelle v. Gamble, 429 U.S. 97,

103 (1976) (quoting Gregg v. Georgia, 428 U.S. 153, 173 (1976)). Prison

officials must provide sentenced prisoners with adequate food, clothing,

shelter, and medical care, and “take reasonable measures to guarantee

the[ir] safety….” Hudson v. Palmer, 468 U.S. 517, 526-27 (1984); see

Farmer v. Brennan, 511 U.S. 825, 832-34 (1994). Inmates’ claims that prison

officials disregarded specific known risks to their health or safety are

analyzed under the deliberate indifference standard of the Eighth

Amendment. See Pressly v. Hutto, 816 F.2d 977, 979 (4th Cir.1987).

Plaintiff’s claim that Defendant D’Amico was deliberately indifferent to

a serious medical need is not indisputably meritless on its face and the Court

cannot conclude at this juncture that it is time-barred. Therefore, the

deliberate indifference claim against Defendant D’Amico will be permitted to

proceed. The Court will exercise supplemental jurisdiction over Plaintiff’s

medical malpractice claim against Defendant D’Amico at this time.3 See

generally 28 U.S.C. § 1367.

Finally, Plaintiff asks the Court to reconsider the denial of his Motion

for the appointment of counsel. [Doc. 11]. He argues that: his imprisonment

will pose hardships in investigating and presenting his case; this is a factually

complex case that will require a medical expert; he is indigent and lacks legal

training and access to a law library or legal assistance; he is not qualified to

3 There is nothing in the record to indicate that the Plaintiff has complied with North

Carolina Civil Rule 9(j), or to indicate that he will be able to do so. However, in light of

Plaintiff’s pro se status the Court will defer this issue until responsive pleadings are filed

and any defenses regarding this issue are presented.

present his case to a jury; and his case is meritorious. Plaintiff has failed to

demonstrate the existence of extraordinary circumstances that would

warrant the appointment of counsel. Miller v. Simmons, 814 F.2d 962 (4th

Cir. 1987). Moreover, Plaintiff will be granted the opportunity to seek the

assistance of North Carolina Prisoner Legal Services to assist him with

discovery. See Misc. Case No. 3:19-mc-00060-FDW. Therefore, Plaintiff’s

Motion for Reconsideration will be denied.

IV. CONCLUSION

For the foregoing reasons, the Court concludes that Plaintiff’s claims

of deliberate indifference and medical malpractice against Defendant

D’Amico have survived initial review, and the remaining claims are

dismissed. Plaintiff’s Motion for Reconsideration of the Order denying his

request for the appointment of counsel is denied.

This Court’s Local Rule 4.3 sets forth the procedure to waive service

of process for current or former employees of NCDPS in actions filed by

North Carolina State prisoners. In light of the Court’s determination that this

case passes initial review, the Court will order the Clerk of Court to

commence the procedure for waiver of service as set forth in Local Civil Rule

4.3 for Defendant D’Amico, who is alleged to be a current or former employee

of NCDPS.

IT IS, THEREFORE, ORDERED that Plaintiff's deliberate indifference

and medical malpractice claims against Defendant D’Amico have survived

initial review. Plaintiff's remaining claims are DISMISSED pursuant to 28

U.S.C. § 1915.

IT IS FURTHER ORDERED that Plaintiff's Motion for Reconsideration

[Doc. 11] is DENIED.

The Clerk of Court is directed commence the procedure for waiver of

service as set forth in Local Civil Rule 4.3 for Defendant D’Amico, who is

alleged to be a current or former employee of NCDPS. The Clerk is further

directed to mail Plaintiff an Opt-In/Opt-Out form pursuant to the Standing

Order in Misc. Case No. 3:19-mc-00060-FDW.

IT IS SO ORDERED.

Signed: August 28, 2020

Ct ey

Chief United States District Judge AS