Moore v. Lassiter

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF NORTH CAROLINA

ASHEVILLE DIVISION

CIVIL CASE NO. 1:20-cv-00058-MR

BENSON MOORE, )

)

Plaintiff, )

)

vs. )

)

KENNETH LASSITER, et al., ) ORDER

)

Defendants. )

_______________________________ )

THIS MATTER is before the Court on initial review of the Complaint

[Doc. 2]. Plaintiff is proceeding in forma pauperis. [See Doc. 16].

I. BACKGROUND

Pro se incarcerated Plaintiff filed this civil rights action in the United

States District Court for the Middle District of North Carolina pursuant to 42

U.S.C. § 1983, the Americans With Disabilities Act (ADA), 42 U.S.C. §

12101, et seq., and the Rehabilitation Act, 29 U.S.C. § 791, et seq.1 The

Complaint named at least 37 state prison officials or personnel as

Defendants regarding allegations that they provided inadequate medical

1 The Complaint also purports to rely on 18 U.S.C. § 242, “NC Statute 735.40.7(g) &

90.22.21” and North Carolina Department of Public Safety policies. [Doc. 2 at 17].

However, those claims have been dismissed. [Doc. 12 at 3].

care at several North Carolina prisons, including the Mountain View

Correctional Institution (Mountain View CI). The Middle District dismissed all

claims and Defendants on initial review except for those connected to

incidents that allegedly occurred at Mountain View CI. The Middle District

then transferred the action to this Court for initial review on the remaining

claims and for ruling on the Plaintiff’s Motion to Amend/Update the

Complaint. [See Docs. 11, 12].

Upon transfer of this matter, this Court denied the Plaintiff’s Motion to

Amend/Update on the grounds that the Plaintiff was attempting to amend the

Complaint in a piecemeal fashion.2 [Doc. 15]. This denial was without

prejudice for the Plaintiff to file a superseding amended complaint within 30

days, which he failed to do. [Id.]. Thus, the Court will proceed to conduct an

initial review of those claims asserted in the Complaint relating to the

adequacy of the medical care that the Plaintiff received at Mountain View

CI.3

2 This case was assigned to Judge Frank D. Whitney at that time.

3 While the Complaint refers to a number of “exhibits,” the documents that the Plaintiff

has attached to the Complaint are not labeled in accordance with the exhibits mentioned

in the Complaint, nor do the documents appear to correspond to the exhibits described in

the Complaint. [See Doc. 8 at 8 (Order and Recommendation of United States Magistrate

Judge noting that the Complaint refers to an exhibit that is not attached to the Complaint)].

The Defendants presently before the Court are: Kenneth Lassiter, the

director of prisons for the North Carolina Department of Public Safety

(NCDPS); Tierra Catlett, the NCDPS assistant deputy director of health

services; Trisha Jordan, the NCDPS “Assistant of Health Services” [Doc. 2

at 5]; and the following Mountain View CI employees: Superintendent Mike

Slagle (“Superintendent Slagle”); Dexter Gibbs, assistant superintendent of

programs (“Assistant Superintendent Gibbs”); Kella Phillips, a unit manager

(“Unit Manager Phillips”); Donald Grindstaff, a correctional captain (“Captain

Grindstaff”); Robert Mask, a case manager (“Case Manager Mask”); FNU

Shepard, a warehouse sergeant (“Sergeant Shepard”); Joshua McKinney, a

clothes house sergeant (“Sergeant McKinney”); Norma Melton, a nurse

supervisor (“Nurse Melton”); FNU Slater, a psychiatrist (“Dr. Slater”); Jeffrey

Patane, a physician assistant (“PA Patane”); Brandon Barrier, a nurse

(“Nurse Barrier”); and J. Campbell, a nurse (“Nurse Campbell”).4

4 The Plaintiff’s Complaint is 75 pages long and contains over 200 numbered paragraphs

of allegations. Only the allegations that pertain to the 15 active Defendants are included

in this Order except insofar as additional allegations provide clarity or context. To the

extent that the Complaint refers to individuals who are not named as Defendants, these

allegations cannot proceed at this time. See Fed. R. Civ. P. 10(a) (requiring that the title

of the complaint name all parties); see, e.g., Londeree v. Crutchfield Corp., 68 F. Supp.2d

718 (W.D. Va. 1999). Further, allegations that are extraneous or unclear have been

omitted. For instance, the Plaintiff alleges that he “received new restrictions” in a

grievance response on March 9, 2018; however, the Court is unable to determine the

meaning of this vague allegation or how it relates to a claim against any Defendant. [Doc.

2 at 40].

The Plaintiff alleges that he suffered a football injury in 1995 that

required surgery to place a metal rod in his femur. [Doc. 2 at 18]. According

to the Plaintiff, his symptoms included “severe pains, locking-up of the hip

joint (after periods of sitting or [lying] on metal bed/metal table/stool),

popping/stiffness and weakness (giving-out) of the hip joint, [and] throbbing,

swelling and numbness to the upper thigh area.” [Id. at 18-19]. Upon his

incarceration in 2005, the Plaintiff began receiving x-rays, over-the-counter

medication, and accommodations for severe pain that was assumed to be

associated with his prior surgery. Specifically, the Plaintiff alleges that a

NCDPS doctor approved various medical accommodations for him, including

the use of an electrical TENS unit, a lidocaine patch, and an air mattress.

[Id. at 35].

The Plaintiff alleges that he was transferred to Mountain View CI on

December 1, 2017. [Doc. 2 at 36]. At that time, the Plaintiff alleges, Nurse

Melton and PA Patane evaluated him and informed him that his pain was

psychological due to his lengthy prison sentence, and that his medical

accommodations would be discontinued. [Id.].

Over the next two years, the Plaintiff made repeated requests for his

medical accommodations to be reinstated, but such requests were refused.

The Plaintiff alleges that he submitted multiple sick calls and, while he did

receive some treatment, his complaints of pain were often dismissed. [See

Doc. 2 at 41 (alleging that Nurse Melton stated that Plaintiff was “okay

because he wasn’t dying”); at 46 (alleging that Campbell refused to assess

him, stating that “Plaintiff’s pains won’t kill him and Plaintiff isn’t going to

die”)]. The Plaintiff wrote letters to Director Lassiter and Assistant Deputy

Director Catlett regarding his lack of treatment, but received no response.

[Id. at 42, 45]. The Plaintiff also filed a number of grievances, none of which

were successful. [Id. at 42, 43]. The Plaintiff’s family and fiancée

communicated multiple times with Mountain View officials about the

Plaintiff’s medical needs, to no avail. [Id. at 43, 44, 46-47, 48]. At one point,

the Plaintiff’s mother spoke to Superintendent Slagle about the denial of

medical accommodations for her son. Slagle told her that Mountain View

“doesn’t allow the accommodations Mr. Moore was prescribed.” [Id. at 43].

The Plaintiff also made multiple requests for a transfer to a different prison

facility, all of which were denied. [Id.].

The Plaintiff seeks declaratory judgment, injunctive relief,

compensatory and punitive damages, and any additional relief the Court

deems to be appropriate. [Id. at 67].

II. STANDARD OF REVIEW

Because the 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 “(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 28 U.S.C. §

1915A (requiring frivolity review for prisoners’ civil actions seeking redress

from governmental entities, officers, or employees).

In its frivolity review, the 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

A. ADA and Rehabilitation Act Claims

The Plaintiff purports to assert claims based on a disability pursuant to

the ADA and the Rehabilitation Act. To state a claim under the ADA and the

Rehabilitation Act, a plaintiff must show that: (1) he has a disability; (2) he

was otherwise qualified to receive the benefits of a public service, program,

or activity; and (3) he was denied the benefits of such service, program, or

activity, or was otherwise discriminated against, on the basis of the disability.

See Nat’l Fed. of the Blind v. Lamone, 813 F.3d 494 (4th Cir. 2016); Seremeth

v. Bd. Of Cnty. Com’rs Fredrick Cnty., 673 F.3d 333, 336 n.1 (4th Cir. 2012)

(“Claims under the ADA’s Title II and the Rehabilitation Act can be combined

for analytical purposes because the analysis is ‘substantially the same.’”)

(quoting Doe v. Univ. of Md. Med. Sys. Corp., 50 F.3d 1261, 1265 n.9 (4th

Cir. 1995)).

The Plaintiff appears to allege that the Defendants denied his requests

for reasonable accommodations and, more generally, that the Defendants

provided inadequate medical care and accommodations for his hip and back

pain. Assuming that the Plaintiff’s conditions qualify as a disability, the

Plaintiff’s allegations fail to state an ADA or Rehabilitation Act claim because

he “fails to show he was treated in this manner because of his disability.”

Miller v. Hinton, 288 F. App’x 901, 903 (4th Cir. 2008) (affirming summary

judgment for prison officials on prisoner’s ADA claim that the institution

denied him access to colostomy bags and catheters because he failed to

show that he was treated in this manner because of his disability) (emphasis

added). The ADA and the Rehabilitation Act are not violated “by a prison’s

simply failing to attend to the medical needs of its disabled prisoners….”

Bryant v. Madigan, 84 F.3d 246, 249 (7th Cir. 1996) (discussing ADA).

Therefore, Plaintiff’s ADA and Rehabilitation Act claims are dismissed for

failure to state a claim upon which relief can be granted.

B. § 1983 Claims

The Plaintiff also asserts claims under 42 U.S.C. § 1983 for deliberate

indifference to his medical needs. 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).

1. § 1983 Claims against Medical Personnel

The Eighth Amendment prohibits the infliction of “cruel and unusual

punishments” and protects prisoner from 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)). To state a claim for deliberate

indifference to a serious medical need, a plaintiff must show that he had

serious medical needs and that the defendant acted with deliberate

indifference to those needs. Heyer v. United States Bureau of Prisons, 849

F.3d 202, 210 (4th Cir. 2017) (citing 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.” Iko,

535 F.3d at 241 (internal quotation marks omitted). To constitute deliberate

indifference to a serious medical need, “the treatment [a prisoner receives]

must be so grossly incompetent, inadequate, or excessive to shock the

conscience or to be intolerable to fundamental fairness.” Miltier v. Beorn,

896 F.2d 848, 851 (4th Cir. 1990), overruled on other grounds by Farmer, 511

U.S. at 825. Allegations of inadvertent failure to provide adequate medical

care or of negligent diagnosis fail to establish the requisite state of mind.

Wilson v. Seiter, 501 U.S. 294, 297 (1991). Further, “mere ‘[d]isagreements

between an inmate and a physician over the inmate’s proper medical care’

are not actionable absent exceptional circumstances.” Scinto v. Stansberry,

841 F.3d 219, 225 (4th Cir. 2016) (quoting Wright v. Collins, 766 F.2d 841

(4th Cir. 1985)).

Here, the Plaintiff asserts that Nurse Melton, Nurse Barrier, and Nurse

Campbell unreasonably withheld medical treatment and accommodations

and deliberately ignored his complaints of pain and requests for prescribed

pain medication and other treatment. The Plaintiff has plausibly stated

deliberate indifference claims against these Defendants, and such claims will

be permitted to proceed.

As for the psychiatrist Dr. Slater (sometimes referred to as “Slager” in

the Complaint), the Plaintiff’s deliberate indifference allegations appear to

rest entirely on his claim that Dr. Slater told him that she was unable to treat

his medical concerns and that she noted that it appeared he was receiving

medical treatment. Such allegations are insufficient to support a deliberate

indifference claim, and thus the Plaintiff’s claim against Dr. Slater will be

dismissed.

The Plaintiff appears to allege that PA Patane was deliberately

indifferent for concluding that the Plaintiff’s pain was psychological,

discontinuing his medical accommodations upon the Plaintiff’s arrival at

MVCI, recommending that the Plaintiff see the psychiatrist, and ultimately

recommending that the Plaintiff be approved for pain medication. Even

assuming that Plaintiff’s reported pain qualifies as a serious medical need,

the Plaintiff has failed to state a deliberate indifference claim against PA

Patane. He does not explain how Patane’s initial finding that his pain was

psychological was anything more than a misdiagnosis. The Plaintiff does not

even allege that such action rose to the level of negligence. Further, he has

failed to demonstrate that Patane had a deliberately indifferent state of mind.

Patane did not refuse care altogether in that he recommended that Plaintiff

seek psychological treatment and ultimately requested that Plaintiff be

approved for pain medication. In short, the Plaintiff’s disagreements with

Patane’s diagnosis and treatment recommendations fail to state a deliberate

indifference claim. Accordingly, the Plaintiff’s § 1983 claim against PA

Patane will be dismissed.

2. § 1983 Claims against Non-Medical Personnel

To establish a deliberate indifference claim against non-medical

personnel, a prisoner must show that the non-medical personnel failed to

promptly provide needed medical treatment, deliberately interfered with

prison doctors’ treatment, or tacitly authorized or were indifferent to prison

physicians’ misconduct. Militer, 896 F.2d at 854. Moreover, because most

prison officials are not trained medical personnel, they are entitled to rely on

the opinions, judgment, and expertise of medical personnel concerning the

course of treatment that the medical personnel deem necessary and

appropriate for the prisoner. Id.

Here, the Plaintiff asserts claims of deliberate indifference against

several Department of Prison Services employees in Raleigh, including

Defendants Lassiter, Catlett, and Jordan. The Plaintiff’s allegations at most

indicate that these Defendants were aware of the Plaintiff’s complaints about

his medical treatment and his requests for a transfer; however, the Complaint

fails to adequately allege that any of these Defendants tacitly authorized or

were deliberately indifferent to a pattern of inadequate medical care and

accommodations at Mountain View CI. Accordingly, the Plaintiff’s § 1983

claims against Defendants Lassiter, Catlett, and Jordan will be dismissed.

With respect to Superintendent Slagle, the Plaintiff has plausibly

alleged that Slagle tacitly authorized or was deliberately indifferent to a

pattern of inadequate medical care and accommodations at Mountain View.

Accordingly, the Plaintiff’s § 1983 claim against Superintendent Slagle will

be allowed to proceed.

The Plaintiff, however, has failed to plausibly allege that any of the

other non-medical personnel at Mountain View failed to promptly provide

needed medical treatment, deliberately interfered with prison doctors’

treatment, or tacitly authorized or were indifferent to prison physicians’

misconduct. To the extent that these Defendants denied the Plaintiff any of

his requested accommodations, they were entitled to rely on the instructions

of medical personnel who advised (rightly or wrongly) that the Plaintiff was

not authorized to receive such items. Further, the Plaintiff’s lengthy

allegations demonstrate that time and time again, these Defendants

responded to the Plaintiff’s complaints and relayed his requests to the

appropriate medical personnel. These allegations simply fail to state a

plausible claim of tacit authorization or indifference to any alleged

misconduct by medical personnel. Accordingly, the Plaintiff’s deliberate

indifference claims against Defendants Gibbs, Phillips, Grindstaff, Mask,

Shepard, and McKinney are dismissed.

IV. CONCLUSION

For the foregoing reasons, the Court concludes that the Complaint has

passed initial review on Plaintiff’s § 1983 claims against Defendants Slagle,

Melton, Barrier, and Campbell. The Plaintiff’s remaining claims are

dismissed without prejudice.

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 Defendants Slagle, Melton, Barrier, and Campbell, who are alleged

to be current or former employees of NCDPS.

IT IS, THEREFORE, ORDERED that the Complaint [Doc. 2] has

passed initial review with respect to the Plaintiffs § 1983 claims against

Defendants Slagle, Melton, Barrier, and Campbell. The Plaintiff's remaining

claims are DISMISSED WITHOUT PREJUDICE.

The Clerk of Court shall commence the procedure for waiver of service

as set forth in Local Civil Rule 4.3 for Defendants Slagle, Melton, Barrier, and

Campbell, who are alleged to be current or former employees of NCDPS.

IT IS FURTHER ORDERED that the Clerk shall mail the 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: June 7, 2021

Martifi Reidinger ee

Chief United States District Judge AS

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