Watson v. Clelland

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF NORTH CAROLINA

STATESVILLE DIVISION

CIVIL CASE NO. 5:18-cv-00142-MR

EARL JAMES WATSON, )

)

Plaintiff, )

) MEMORANDUM OF

vs. ) DECISION AND ORDER

)

PAULA SMITH, et al., )

)

Defendants. )

_______________________________ )

THIS MATTER comes before the Court on Defendant David Guinn’s

Motion to Dismiss [Doc. 143]; Defendants Guinn, Kevin Chung, and Marta

Kalinski’s Motion for Summary Judgment Limited to Failure to Exhaust

Administrative Remedies [Doc. 153]; and Plaintiff’s Motion for Leave to File

Second Amended Complaint [Doc. 170].

I. BACKGROUND

In August 2018,1 the incarcerated Plaintiff, proceeding pro se, filed this

action pursuant to 42 U.S.C. § 1983 addressing incidents surrounding

Plaintiff’s back surgery at the Catawba Valley Medical Center (“CVMC”) on

1 The Complaint was filed pursuant to the prisoner mailbox rule on August 31, 2018. 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 prisoner mailbox

rule to § 1983 case).

September 23, 2015, and subsequent incidents at the Alexander

Correctional Institution (“Alexander C.I.”), North Carolina Central Prison

(“Central Prison”), and Albemarle Correctional Institution (“Albemarle C.I.”).

[Doc. 1].

The Verified Amended Complaint [Doc. 74] passed initial review on

claims of deliberate indifference to a serious medical need, supervisory

liability, and North Carolina negligence. [Doc. 75].

Several Defendants have been dismissed from this action.2 [See Doc.

73 (granting Defendant Frank Rinaldo’s Motion to Dismiss for failure to state

a claim, and granting Defendant Melissa Quinn’s Motion to Dismiss on

Plaintiff’s concession that she was a misidentified party); Doc. 111 (granting

Defendant Stephanie Brathwaite’s Motion for Summary Judgment); Doc. 129

(dismissing Defendants Maine, Ford, Gonzalez-Ojeda, Mundle, and Polanco

without prejudice pursuant to Fed. R. Civ. P. 4(m))].

The Defendants who are presently active in the case are: George

Bowden,3 a unit manager at Albemarle C.I.; Wendy Brewton,4 a lieutenant at

2 This case was assigned to Judge Frank D. Whitney until April 24, 2020.

3 “FNU Bowden” in the Amended Complaint.

4 “FNU Brewton” in the Amended Complaint.

Albemarle C.I.; Keven Chung, M.D., a medical doctor at Alexander C.I.;5

Jack Clelland, the administrator of Albemarle C.I.; April Foreman, a nurse at

Albemarle C.I.; William Glick, the assistance superintendent of programs at

Albemarle C.I.; Lecia Goines,6 a nurse at Albemarle C.I.; David E. Guinn,

N.P., a medical provider at Alexander C.I.;7 Marta M. Kalinski, a medical

doctor at Alexander C.I.; Sylvia Murphy,8 a sergeant at Albemarle C.I.;

Lawrence Parsons, the assistant superintendent of custody and operations

at Albemarle C.I.; and Bruce Randall,9 a lieutenant at Albemarle C.I. [Doc.

75].

Defendant Guinn has filed a Motion to Dismiss for failure to state a

claim upon which relief can be granted. [Doc. 143]. The Court notified the

Plaintiff of the opportunity to respond to Defendant Guinn’s Motion [Doc.

149], and the Plaintiff filed a Response [Doc. 156].

Defendants Guinn, Chung, and Kalinski have also filed a Motion for

Summary Judgment Limited to Failure to Exhaust Administrative Remedies.

5 “FNU Chung” in the Amended Complaint.

6 “FNU Goines” in the Amended Complaint.

7 “FNU Quinn” in the Amended Complaint.

8 “FNU Murphy” in the Amended Complaint.

9 “FNU Randle” in the Amended Complaint.

[Doc. 153]. The Court notified the Plaintiff of the opportunity to respond to

Defendants’ Motion and to present evidence in opposition pursuant to Fed.

R. Civ. P. 56 [Doc. 160] and the Plaintiff filed a Response [Doc. 163].

These matters have been fully briefed and are ripe for disposition.

II. STANDARD OF REVIEW

Summary judgment shall be granted “if the movant shows that there is

no genuine dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a). A factual dispute is

genuine “if the evidence is such that a reasonable jury could return a verdict

for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986). A fact is material only if it might affect the outcome of the suit under

governing law. Id.

The movant has the “initial responsibility of informing the district court

of the basis for its motion, and identifying those portions of the pleadings,

depositions, answers to interrogatories, and admissions on file, together with

the affidavits, if any, which it believes demonstrate the absence of a genuine

issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)

(internal citations omitted).

Once this initial burden is met, the burden shifts to the nonmoving

party. The nonmoving party “must set forth specific facts showing that there

is a genuine issue for trial.” Id. at 322 n.3. The nonmoving party may not

rely upon mere allegations or denials of allegations in his pleadings to defeat

a motion for summary judgment. Id. at 324. Rather, the nonmoving party

must oppose a proper summary judgment motion with citation to

“depositions, documents, electronically stored information, affidavits or

declarations, stipulations ..., admissions, interrogatory answers, or other

materials” in the record. See id.; Fed. R. Civ. P. 56(c)(1)(a). Courts “need

not accept as true unwarranted inferences, unreasonable conclusions, or

arguments.” Eastern Shore Mkt. Inc. v. J.D. Assoc.’s, LLP, 213 F.3d 175,

180 (4th Cir. 2000). The nonmoving party must present sufficient evidence

from which “a reasonable jury could return a verdict for the nonmoving party.”

Anderson, 477 U.S. at 248; accord Sylvia Dev. Corp. v. Calvert County, Md.,

48 F.3d 810, 818 (4th Cir. 1995).

“As a general rule, when one party files a motion for summary

judgment, the non-movant cannot merely rely on matters pleaded in the

complaint, but must, by factual affidavit or the like, respond to the motion.”

Williams v. Griffin, 952 F.2d 820, 823 (4th Cir. 1991). However, it is well

established that “a verified complaint is the equivalent of an opposing

affidavit for summary judgment purposes, when the allegations contained

therein are based on personal knowledge.” Id. (citing Davis v. Zahradnick,

600 F.2d 458, 459–60 (4th Cir. 1979) (per curiam)); see also World Fuel

Servs. Trading, DMCC v. Hebei Prince Shipping Co., 783 F.3d 507, 516 (4th

Cir. 2015) (same). Further, “an amended complaint does not divest an

earlier verified complaint of its evidentiary value as an affidavit at the

summary judgment stage.” Goodman v. Diggs, 986 F.3d 493, 499 (4th Cir.

2021).

When ruling on a summary judgment motion, a court must view the

evidence and any inferences from the evidence in the light most favorable to

the nonmoving party. Anderson, 477 U.S. at 255. “‘Where the record taken

as a whole could not lead a rational trier of fact to find for the nonmoving

party, there is no genuine issue for trial.’” Ricci v. DeStefano, 557 U.S. 557,

586 (2009) (quoting Matsushita v. Zenith Radio Corp., 475 U.S. 574, 587

(1986)).

III. FACTUAL BACKGROUND

The forecast of evidence, viewed in the light most favorable to the non-

movant, is as follows:

On September 23, 2015, the Plaintiff underwent back surgery at

CVMC. [Doc. 74: Verified Am. Complaint at 9]. He was transferred to

Alexander C.I. on September 25, 2015. [Id. at 13-14]. Upon arrival, the

Plaintiff told Dr. Kalinski and Nurse Guinn about physical injuries he allegedly

sustained during an assault immediately prior to his surgery, which had

resulted in pain in his left foot, ankles, lower legs, knees, testicles, rectal

area, left hip, left chest, lower and upper back, and chin. [Id. at 14]. The

Plaintiff also told Dr. Kalinski that he had lost rectal control, that his rectal

muscles were damaged, and that he had trouble holding urine. [Id.]. Dr.

Kalinski examined the lump on the Plaintiff’s chin and offered him diapers.

[Id.]. Dr. Kalinski also ordered Tylenol to be provided to him for pain, but

medical staff did not give it to him. [Id. at 20].

As for Dr. Chung, the Plaintiff alleges in the Verified Amended

Complaint that Dr. Chung closed the infirmary at Alexander C.I. on October

13, 2015, because he did not want to care for inmates at the infirmary. [Id.

at 16]. The Plaintiff further alleges that Dr. Chung had the Plaintiff sent to

Central Prison in a retaliatory transfer. [Id.].

During the relevant time period at issue (September 2015 through the

filing of the first Complaint), the Plaintiff exhausted sixteen (16) grievances.

[See Doc. 155: Affidavit of Kimberly Grande (“Grande Aff.”) at ¶ 9, Exs. A-P].

However, none of the exhausted grievance appeals provided fair notice of,

or the opportunity to address, the allegations against the Defendants that are

asserted in this case. [See id.].

IV. DISCUSSION

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

exhaust his administrative remedies before filing a § 1983 action. 42 U.S.C.

§ 1997e(a). The PLRA provides, in pertinent part, that “[n]o action shall be

brought with respect to prison conditions under section 1983 of this title, or

any other Federal law, by a prisoner confined in any jail, prison, or other

correctional facility until such administrative remedies as are available are

exhausted.” Id. PLRA’s exhaustion requirement applies to all inmate suits

about prison life. Porter v. Nussle, 534 U.S. 516, 532 (2002). There is “no

question that exhaustion is mandatory under PLRA and that unexhausted

claims cannot be brought in court.” Jones v. Bock, 549 U.S. 199, 211 (2007)

(citing Porter, 534 U.S. at 524). The PLRA requires “proper” exhaustion,

which means “using all steps that the agency holds out, and doing so

properly (so that the agency addresses the issues on the merits).” Woodford

v. Ngo, 548 U.S. 81, 90 (2006) (quoting Pozo v. McCaughtry, 286 F.3d 1022,

1024 (7th Cir. 2002)). The exhaustion of administrative remedies must occur

before a civil action is commenced. Porter, 534 U.S. at 516. A prisoner may

not exhaust her administrative remedies during the pendency of a § 1983

action. Germain v. Shearin, 653 F. App’x 231, 234 (4th Cir. 2016); French v.

Warden, 442 F. App’x 845, 846 (4th Cir. 2011).

NCDPS has established a three-step procedure governing submission

and review of inmate grievances, which it refers to as the Administrative

Remedies Procedure (“ARP”). N.C. Gen. Stat. § 148-11A; Moore v.

Bennette, 517 F.3d 717, 721 (4th Cir. 2008); see Fed. R. Civ. P. 201

(addressing judicial notice). Under the ARP, an inmate must submit a

grievance at step one and then may appeal an unfavorable decision from

step one at steps two and three. Id. A decision at step three of the ARP

exhausts the prisoner’s remedies under the PLRA. Exhaustion is not

complete until the North Carolina Inmate Grievance Resolution Board

completes the step three review and issues an order. [Doc. 155: Grande Aff.

at ¶ 4].

“The level of detail necessary in a grievance to comply with the

grievance procedures will vary from system to system and claim to claim, but

it is the prison’s requirements, and not the PLRA, that define the boundaries

of proper exhaustion.” Jones, 549 U.S. at 218. NCDPS’s ARP does not

require a plaintiff to name each defendant in his grievance so long as the

grievance gives the defendant fair notice of the claim. See Moore, 517 F.3d

at 729. However, if the grievance fails to give prison authorities fair notice

of, and the opportunity to address, the problem that will later form the basis

of the suit against that defendant, dismissal of that defendant is appropriate.

See Davidson v. Davis, No. 3:13-cv-590-FDW, 2015 WL 996629 at *3

(W.D.N.C. Mar. 6, 2015) (citing Johnson v. Johnson, 385 F.3d 503, 516-17

(5th Cir. 2004)).

The Defendants have presented a forecast of evidence that the Plaintiff

exhausted 16 grievances during the relevant time period, but that none of

the exhausted grievances provided NCDPS fair notice of, or the opportunity

to address, the Plaintiff’s allegations against Defendants Chung, Guinn, and

Kalinski that are raised in this lawsuit. Only two of the 16 grievances pertain

to the Plaintiff’s September 23, 2015 surgery in any way. The first, ARP No.

4580-2015-BADNC-00026, is dated November 3, 2015. [Doc. 155-1:

Grande Aff. Ex A at 2]. In it, the Plaintiff complains inter alia that he was not

placed at the infirmary at Alexander C.I. following his back surgery despite

doctors’ orders to that effect, and that his transport to Central Prison in a van

was painful. [Id.]. The second, ARP No. 4580-2015-FALSC-02611, is dated

May 19, 2017. [Doc. 155-11: Grande Aff. Ex K at 2]. In it, the Plaintiff

recounts his allegations about the alleged assault on September 23, 2015.

He further alleges that, “in the hospital room after surgery [he] immediately

complained to all the nurses and NCDPS officers of Alexander Correctional

about pain…” from the alleged assault. [Doc. 155-11: Grande Aff. Ex K at 5-

6]. Neither of these grievances alludes to the Plaintiff’s alleged reporting of

his injuries to Defendants Kalinski and Guinn after he returned to Alexander

C.I., or to Defendant Chung’s alleged closing of the Alexander C.I. infirmary.

The Plaintiff argues that he has no access to a law library or legal

assistance, which prevents him from properly responding to the Motion for

Summary Judgment.10 He argues that the APR specifically provides for

informal communication about issues with responsible prison authorities,

and that he exhausted his administrative remedies by filing written

grievances and through the many informal communications that the Plaintiff

and his parents had with prison staff, which placed NCDPS officials on fair

notice of his problems. He argues that NCDPS had a duty of inquiry and that

a proper investigation of his grievances would have revealed the underlying

facts concerning his claims. The Plaintiff further appears to argue that his

criminal attorney discovered in October 2015 that Plaintiff’s medical records

had been destroyed by NCDPS, and that this indicates that something

10 In his Response to Defendants Chung, Guinn, and Kalinski’s Motion for Summary

Judgment [Doc. 163: Plaintiff’s MSJ Response] and in his Motion to Amend [Doc. 170:

Motion to Amend at 11], the Plaintiff requests the appointment of counsel. The Plaintiff

has repeatedly requested the appointment of counsel in this case, but those requests

have been denied because the Plaintiff has failed to demonstrate the existence of

extraordinary circumstances. See Miller v. Simmons, 814 F.2d 962, 966 (4th Cir. 1987);

[Docs. 8, 20, 179]. The Plaintiff’s present requests likewise fail to demonstrate the

existence of extraordinary circumstances and thus these requests will also be denied.

Further, the Plaintiff’s requests are moot insofar as NCPLS has been appointed for the

limited purpose of assisting the Plaintiff with discovery. [Doc. 165: Pretrial Order and

Case Management Plan].

unfavorable about these Defendants appeared in the destroyed records.

The Plaintiff argues that Defendants have “mask[ed] the fact[s]” and made

fraudulent misrepresentations to the Court, which he contends constitutes

fraud on the Court and requires denial of their Motion for Summary

Judgment. [Doc. 163 at 18]. He asks the Court to find that he exhausted his

administrative remedies or to waive the exhaustion requirement. He has

filed an Affidavit by his mother, Rosie Ruth Watson in which she outlines the

conversations she allegedly had with various prison officials complaining

about the Plaintiff’s treatment and her attempts to find him a lawyer. [Doc.

163: R. Watson Aff. at 25-27].

The Plaintiff has failed to forecast any evidence that he exhausted the

available administrative remedies. His argument that informal

communications with NCDPS satisfied the APR is mistaken. Although

NCDPS encourages inmates to resolve any issues informally before

resorting to the APR, an inmate must go through all three formal steps of the

APR to fully and properly exhaust a claim. [See Doc. 155: Grande Aff. at ¶

4]. The Plaintiff’s request that the Court waive the exhaustion requirement

must be denied because PLRA’s exhaustion requirement is mandatory and

cannot be excused. See Jones, 549 U.S. at 211 (exhaustion is mandatory);

Ross v. Blake,136 S.Ct. 1850, 1856 (2016) (“a court may not excuse a failure

to exhaust,” even to take special circumstances into account). Moreover, the

Plaintiff fails to explain how the alleged loss or destruction of medical records

in 2015 had any bearing whatsoever on his exhaustion of the APR with

regards to his claims against Defendants Chung, Guinn, and Kalinski, or his

ability to demonstrate exhaustion in this case.

Because the undisputed forecast of evidence before the Court

demonstrates that the Plaintiff failed to exhaust his administrative remedies,

Defendants Chung, Guinn, and Kalinski’s Motion for Summary Judgment will

be granted.11

V. MOTION TO AMEND

Following the filing of the Defendants’ Motion for Summary Judgment,

the Plaintiff moved for leave to file a Second Amended Complaint. [Doc.

170: Motion to Amend].

A plaintiff may amend the complaint once as a matter of course within

21 days after serving the complaint, or within 21 days after service of a

responsive pleading or 21 days after service of a motion under Rule 12(b),

(e), or (f), whichever is earlier. Fed. R. Civ. P. 15(a)(1). A plaintiff may

subsequently amend with permission from the court which “shall be freely

11 Because the Court is granting summary judgment on the basis of the Plaintiff’s failure

to exhaust administrative remedies, the Court need not address the merits of Defendant

Guinn’s Motion to Dismiss [Doc. 143], and it will be denied as moot.

granted when justice so requires.” Fed. R. Civ. P. 15(a)(2). The Fourth

Circuit “ha[s] interpreted Rule 15(a) to provide that ‘leave to amend a

pleading should be denied only when the amendment would be prejudicial

to the opposing party, there has been bad faith on the part of the moving

party, or the amendment would have been futile.’” Laber v. Harvey, 438 F.3d

404, 426 (4th Cir. 2006) (en banc) (quoting Johnson v. Oroweat Foods Co.,

785 F.2d 503, 509 (4th Cir. 1986)).

The Plaintiff seeks to amend so that he can assert a civil conspiracy

claim against Defendants Frick and Morton, the correctional officers who

transported the Plaintiff to CVMC for back surgery (the “NCDPS

Defendants”); and Defendants McFarland, a nurse practitioner at CVMC;

Rinaldo, an anesthesiologist at CVMC; and Jane Doe 1 and 2, nurses at

CVMC (the “CVMC Defendants”).12 The Plaintiff alleges that CVMC

Defendants had a meeting of the minds, conspired with, and acted jointly

with, the NCDPS Defendants to physically and sexually assault him under

the color of state law when he was at CVMC for back surgery on September

23, 2015.

12 To the extent that the Plaintiff argues that the Court erred by dismissing his excessive

force, deliberate indifference, and North Carolina assault claims against these

Defendants, these arguments are rejected. The Court has repeatedly denied

reconsideration of its dismissal of these claims [see Docs. 113, 151, 179], and the Plaintiff

presents no meritorious grounds for doing so in the instant Motion to Amend.

The Plaintiff has previously alleged that the NCDPS Defendants left

him unsupervised at CVMC when he was taken to the operating room for

surgery, which allowed the CVMC Defendants to physically and sexually

assault him while he was under anesthesia. [See Doc. 1: Complaint; Doc.

74: Am. Complaint]. The Court dismissed the claims against these

Defendants, finding that the Plaintiff failed to demonstrate that the NCDPS

Defendants were aware of, and deliberately indifferent to, a serious risk of

harm, or that the CVMC Defendants were acting under the color of state law.

[See Doc. 75: Initial Review of Am. Complaint]. It now appears that the

Plaintiff seeks to overcome his failure to demonstrate that the CVMC

Defendants were state actors and that the NCDPS Defendants were not

deliberately indifferent by alleging that these Defendants conspired to violate

his constitutional rights.

Defendants Bowden, Brewton, Clelland, Foreman, Glick, Goines,

Murphy, Parsons, Randall, and Rinaldo filed Responses to the Motion to

Amend, arguing that the Motion to Amend should be denied as futile because

the claims that the Plaintiff seeks to assert are frivolous or legally insufficient.

[Docs. 172, 173].

In his Reply, the Plaintiff argues that he should be permitted to amend

because his conspiracy claim relates back to the conduct addressed in the

Complaint, that his Motion is not made in bad faith or to delay this action,

and that he has shown good cause for extending the scheduling order

deadlines. [Doc. 175].

To establish a civil conspiracy under § 1983, a plaintiff must show that

the defendants “acted jointly in concert and that some overt act was done in

furtherance of the conspiracy which resulted in [plaintiff’s] deprivation of a

constitutional right.” Hinkle v. City of Clarksburg, 81 F.3d 416, 421 (4th Cir.

1996); see Hafner v. Brown, 983 F.2d 570, 576 n. 6 (4th Cir. 1992). An

essential element in any conspiracy to deprive the plaintiff of his

constitutional rights is an agreement to do so among the alleged co-

conspirators. Ballinger v. North Carolina Ag. Extension Serv., 815 F.2d 1001

(4th Cir. 1987). Without such a meeting of the minds, the independent acts

of two or more wrongdoers does not amount to a conspiracy. Murdaugh

Volkswagen v. First Nat’l Bank, 639 F.2d 1073 (4th Cir. 1981). Where the

complaint makes only conclusory allegations of a conspiracy under § 1983

and fails to demonstrate any agreement or meeting of the minds among the

defendants, the court may properly dismiss the complaint. See Woodrum v.

Woodward County Okl., 866 F.2d 1121 (9th Cir. 1989); Cole v. Gray, 638

F.2d 804 (5th Cir. 1981). General allegations that defendants entered into an

agreement, without sufficiently alleging plausible grounds to infer such an

agreement, failed to state a § 1983 conspiracy claim. Wiggins v. 11 Kew

Garden Court, 497 F. App’x 262 (4th Cir. 2012).

The Plaintiff’s threadbare allegations are conclusory and merely parrot

the civil conspiracy standard. He has failed to suggest the existence of any

facts that would support a plausible conspiracy claim against the NCDPS

and CVMC Defendants. The Court finds that justice does not require the

Plaintiff to be allowed to file a Second Amended Complaint under these

circumstances, and the Plaintiff’s Motion to Amend therefore will be denied

as futile.

VI. CONCLUSION

For the reasons stated herein, the Court will grant Defendants Chung,

Guinn, and Kalinski’s Motion for Summary Judgment, deny Defendant

Guinn’s Motion to Dismiss as moot, and deny the Plaintiff’s Motion to Amend

as futile.

O R D E R

IT IS, THEREFORE, ORDERED that Defendants Chung, Guinn, and

Kalinski’s Motion for Summary Judgment Limited to Failure to Exhaust

Administrative Remedies [Doc. 153] is GRANTED, and the Plaintiff’s claims

against Defendants Chung, Guinn, and Kalinski are hereby DISMISSED

WITHOUT PREJUDICE for failure to exhaust administrative remedies.

IT IS FURTHER ORDERED that:

(1) Defendant Guinn’s Motion to Dismiss [Doc. 143] is DENIED as

moot;

(2) Plaintiff's Motion for Leave to File Second Amended Complaint

[Doc. 170] is DENIED as futile; and

(3) The stay of the scheduling order deadlines in this case [see Doc.

179] is hereby LIFTED, and this case shall proceed with respect

to the Plaintiff's remaining claims against Defendant Bowden,

Defendant Brewton, Defendant Clelland, Defendant Foreman,

Defendant Glick, Defendant Goines, Defendant Murphy,

Defendant Parsons, and Defendant Randall.

IT IS SO ORDERED.

Signed: April 2, 2021

Martifi Reidinger ee

Chief United States District Judge AS

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