Young v. Ishee

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NORTH CAROLINA

STATESVILLE DIVISION

5:22-cv-00074-MR

ROGER D. YOUNG, )

)

Plaintiff, )

)

vs. ) ORDER

)

TODD E. ISHEE, et al., )

)

Defendants. )

________________________________ )

THIS MATTER is before the Court on initial review of Plaintiff’s

Complaint [Doc. 1] filed under 42 U.S.C. § 1983. See 28 U.S.C. §§

1915(e)(2) and 1915A. Plaintiff paid the filing fee in this matter.1 [6/14/2022

Docket Entry].

I. BACKGROUND

Pro se Plaintiff Roger Dean Young (“Plaintiff”) is a prisoner of the State

of North Carolina currently incarcerated at Lincoln Correctional Center

(“Lincoln CC”) in Lincolnton, North Carolina. He filed this action on June 3,

2022 pursuant to 42 U.S.C. § 1983 against Defendant Todd E. Ishee,

1 Plaintiff’s Complaint would otherwise be subject to dismissal under 28 U.S.C. § 1915(g)

because he has previously had at least three complaints dismissed for frivolity or for

failure to state a claim for relief. See Young v. Louis, 1:09-cv-00278-GCM, Doc. 2. Plaintiff

alleges that, “[d]uring the 1980s & 90s [he] was known as a Writ Writer.” [Doc. 1 at 14].

It does not appear that any of the many suits filed by Plaintiff during this time were

successful.

identified as the North Carolina Department of Public Safety (NCDPS)

Commissioner of Prisons; Gary Junker, identified as the NCDPS Director of

Health Services; and FNU McGee, identified as the Warden at Lincoln CC,

in their individual and official capacities. [Doc. 1].

Plaintiff alleges, in relevant part, as follows. Defendant Ishee, as

Commissioner of Prisons, is responsible for the day-to-day operations of the

North Carolina prison system and for the appointment, employment, and

oversight of prison staff and every prison unit. [Id. at 4]. Defendant Junker,

as Director of Health Services, is responsible for the operation of all health

care services in the prison system and for overseeing the provision of

adequate health care to every offender. [Id.]. Defendant McGee, as Warden

of Lincoln CC, is charged with the custody and care of Plaintiff and is

responsible for overseeing facility staff and reviewing all prisoner grievances

and concerns. [Id. at 5].

In 1992, while housed at Burnsville Correctional Center, Plaintiff filed

a grievance requesting treatment for combat related Post-Traumatic Stress

Disorder (PTSD). [Id. at 5]. In or around 1992 or 1993, Plaintiff met with a

psychologist at Craggy Correctional Center seeking help for PTSD. [Id.]. In

2011, at Nash Correctional Institution, medical staff referred Plaintiff to a

psychologist for chronic sleepiness, anxiety, tension, and anger. A few days

later Plaintiff got into a fight with another inmate and was placed in

segregation. Plaintiff was placed in an isolation cell on his request. Because

the noise level was reduced significantly, Plaintiff was able to sleep. In or

around 2012 or 2013, after Plaintiff wrote a letter to the Secretary of Prisons,

he was seen by a psychologist at Eastern Correctional Institution for the

purpose of a risk assessment. [Id.]. At some point later, Plaintiff filed a claim

for veterans disability benefits for PTSD, a left leg wound, and vision loss in

his right eye. These injuries resulted from a mortar blast in 1968. [Id.]. While

Plaintiff was housed at Marion Correctional Center, the VA2 contacted

Marion for permission to perform a Compensation and Pension (C&P) Test

on Plaintiff for his PTSD and leg injury. [Id.]. On February 8, 2022, a VA

provider examined Plaintiff’s leg injury, and, on February 11, 2022, a VA

psychologist examined Plaintiff for PTSD. Plaintiff now receives VA disability

for both claims. [Id. at 6].

Plaintiff is now housed in minimum custody at Lincoln CC. The VA

contacted Lincoln CC for approval for Plaintiff to receive a C&P Test for

Plaintiff’s right eye vision loss. Defendant McGee denied the VA’s request.

The VA also requested to allow a telehealth exam, which Defendant McGee

2 Plaintiff does not specify whether he is referring to the U.S. Department of Veterans

Affair, the N.C. Department of Military and Veterans Affairs, or some other similar entity.

also denied. Defendant McGee denied these requests because Lincoln CC

does not allow outside providers to conduct C&P Tests either in person or

through telehealth absent a court order. Plaintiff learned of these denials by

a March 10, 2022 letter from his Veteran Services Officer. [Id.].

Plaintiff has made multiple requests to be transferred to Troy

Correctional Institution, which is a single cell institution and medical unit, for

his disabilities, including a DC-746 Request for Special Housing. Plaintiff’s

requests have been ignored. [Id.]. On February 24, 2022, Plaintiff submitted

a sick call request, seeking to have the dose of his pain medication,

Ibuprofen, increased. As of the date of Plaintiff’s Complaint, the dose has

not been increased. [Id.]. On April 5, 2022, Plaintiff was seen by Nurse

Shook and his blood pressure was measured to be 151/88. After Nurse

Shook asked if Plaintiff was taking his blood pressure medication, Nurse

Shook discovered Plaintiff’s medication had been discontinued in December

2021. The pharmacy did not give a reason for the discontinuation and

Plaintiff’s healthcare providers were not notified of the change. Plaintiff

alleges that Defendants discontinued his blood pressure medication “to solve

their ‘Writ-writer problem’” and that Defendant Ishee “is maliciously intending

harm and torment to the plaintiff.” [Id. at 7]. Plaintiff has written letters to the

FBI, Defendant Ishee, and the Governor’s Office complaining of

overcrowding at Lincoln CC during the height of the COVID pandemic and

Plaintiff believes that Defendants’ acts and failures to act here “are because

of Plaintiff’s activities (grievances and letters) supporting prisoner rights.”

[Id.].

Plaintiff claims that Defendants violated his rights under the Eighth

Amendment, the Due Process and Equal Protection Clauses of the

Fourteenth Amendment, the “clause Ex Post Facto,” and “Plaintiff’s State

Created rights pursuant to the Div of Prisons, Policy and Procedures …”

[Doc. 1 at 4].

For injuries, Plaintiff states that he has suffered for over 30 years with

PTSD, that he lost monthly VA benefits and “three years [of] back payment,”

and that he suffers fatigue, “a feeling of loss,” and risk of future physical injury

[Id. at 10].

For relief, Plaintiff seeks compensatory and punitive damages, as well

as declaratory and injunctive relief. [Id. at 11].

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

“To state a claim under 42 U.S.C. § 1983, a plaintiff must allege the

violation of a right secured by the Constitution or laws of the United States

and must show that the deprivation of that right was committed by a person

acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988).

Plaintiff here claims that his Eighth and Fourteenth Amendment rights were

violated, as well as the Ex Post Facto Clause and rights created by NCDPS

Policy.

A. Official Capacity Claims

“[A] suit against a state official in his or her official capacity is not a suit

against the official but rather is a suit against the official’s office.” Will v.

Michigan Dept. of State Police, 491 U.S. 58, 71 (1989). Because a state is

not a “person” under § 1983, state officials acting in their official capacities

cannot be sued for damages thereunder. Allen v. Cooper, No. 1:19-cv-794,

2019 WL 6255220, at *2 (M.D.N.C. Nov. 22, 2019). Furthermore, as noted

the Eleventh Amendment bars suits for monetary damages against the State

of North Carolina and its various agencies. See Ballenger v. Owens, 352

F.3d 842, 844-45 (4th Cir. 2003). Plaintiff’s official capacity claims, therefore,

do not survive initial review and will be dismissed.

B. 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 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).

A delay in medical treatment, without more, is not deliberate

indifference to a serious medical need. See Wynn v. Mundo, 367 F.Supp.2d

832 (M.D.N.C. Feb. 7, 2005). “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).

Taking Plaintiff’s allegations as true and giving Plaintiff the benefit of

every reasonable inference, Plaintiff has failed to state a claim for relief under

the Eighth Amendment. First, any claims related to events occurring before

May 2019 are barred by the statute of limitations. See Nasim v. Warden,

Md. House of Corr., 64 F.3d 951, 955 (4th Cir. 1995) (affirming dismissal of

§ 1983 action on initial review for failure to file complaint within the applicable

limitations period). Because there is no explicit statute of limitations for

actions brought pursuant to 42 U.S.C. § 1983, courts borrow the state

limitations periods for comparable conduct. See id. A claim for deliberate

indifference to serious medical needs is subject to North Carolina’s three-

year limitations period for personal injuries. See DePaola v. Clarke, 884 F.3d

481, 486 (4th Cir. 2018) (applying Virginia’s two-year limitations period for

Eighth Amendment deliberate indifference claim occurring in Virginia); N.C.

Gen. Stat. § 1-52(5). Plaintiff’s allegations date back to 1992 when Plaintiff

began requesting treatment for PTSD. Plaintiff, however, does not connect

his allegations to any actual denial of care or to the deliberate indifference to

a serious medical needed by any Defendant in this action or to any conduct

that might fall within the limitations period. These claims, therefore, will be

dismissed.

Second, Plaintiff’s Eighth Amendment rights were not violated by

Defendant McGee’s refusal to allow a C&P Test at Lincoln CC, which Plaintiff

alleges resulted in the denial of veterans benefits for Plaintiff’s vision loss.

Plaintiff has identified no deliberate indifference to any serious medical need,

only that he has suffered some monetary loss related to Defendant McGee’s

decision. This claim will be dismissed.

Third, any delay in Plaintiff receiving an increased dose of Ibuprofen

does not violate Plaintiff’s Eighth Amendment rights, especially where

Plaintiff does not allege that such delay caused substantial harm. See Wynn,

367 F.Supp.2d at 838. Moreover, Plaintiff has identified no serious medical

need related to the increased dosage he requested, only that his current

does is “ineffective.” Finally, he has not alleged personal participation by any

named Defendant in this action related to Plaintiff’s Ibuprofen dose. Id. at

837 (“A medical treatment claim cannot be brought against non-medical

personnel, however, unless they were personally involved with a denial of

treatment or deliberately interfered with prison doctors’ treatment.”) (citation

omitted). This claim will also be dismissed.

Finally, the Court addresses Plaintiff’s claim that Defendants

intentionally discontinued his blood pressure medication “to solve their Writ-

writer problem.” This allegation suggests that Plaintiff believes Defendants

ordered his blood pressure medication be discontinued to cause Plaintiff’s

death. This is the type of fantastical and delusional claim that the Court must

filter on initial review. See Neitzke, 490 U.S. at 327-28. Moreover, other

than Plaintiff’s bare statement, he alleges nothing to support any action or

inaction by Defendants relative to Plaintiff’s medications. His claim is nothing

more than baseless speculation and Plaintiff’s claim must be dismissed on

initial review.

C. Fourteenth Amendment

Plaintiff alleges that Defendants’ conduct violated his due process and

equal protection rights. Plaintiff, however, does not allege how these rights

were violated. To the extent Plaintiff intended to state a procedural due

process claim, he has failed. To prevail on a procedural due process claim,

an inmate must first demonstrate that he was deprived of “life, liberty, or

property” by governmental action. Bevrati v. Smith, 120 F.3d 500, 502 (4th

Cir. 1997). Although prisoners are afforded some due process rights while

incarcerated, those liberty interests are limited to “the freedom from restraint

which, while not exceeding the sentence in such an unexpected manner as

to give rise to protection by the Due Process Clause of its own force,

nonetheless imposes atypical and significant hardship on the inmate in

relation to the ordinary incidents of prison life.” Sandin v. Conner, 515 U.S.

472, 484 (1995). Moreover, changes “in a prisoner’s location, variations of

daily routine, changes in conditions of confinement (including administrative

segregation), and the denial of privileges [are] matters which every prisoner

can anticipate [and which] are contemplated by his original sentence to

prison.” Gaston v. Taylor, 946 F.2d 340, 343 (4th Cir. 1991).

Plaintiff here alleges that his requests for transfer to Troy Correctional

Institution, which is a single cell institution, have been “ignored” for a period

of less than three months. Taking Plaintiff’s allegations as true and giving

him the benefit of every reasonable inference, Plaintiff has failed to state a

claim for violation of his Fourteenth Amendment due process rights. Failing

to respond to a prisoner’s requests to be transferred to another institution,

especially for only a few months, does not constitute a deprivation sufficient

to support a Fourteenth Amendment violation. This claim will be dismissed.

Plaintiff’s allegations do not fairly implicate any other Fourteenth

Amendment violations and the Court cannot create claims for the Plaintiff.

Any other Fourteenth Amendment claims Plaintiff intended to assert,

including an equal protection claim, will, therefore, be dismissed.

D. Other Claims

Plaintiff claims that Defendants’ conduct violated the “clause Ex Post

Facto,” but again fails to allege how this alleged right was violated.

Moreover, the Ex Post Facto Clause of the Constitution, which prohibits laws

that make criminal an act that was innocent when committed or punishments

greater than that attached to the crime when committed, does not apply in

this context in any event. See Calder v. Bull, 3 U.S. 386, 393 (1798). The

Court will dismiss this claim with prejudice.

Plaintiff also claims that Defendants violated his “State Created rights”

pursuant to NCDPS Policy. This claim also fails. There is no cause of action

under § 1983 for violation of policy. Keeler v. Pea, 782 F.Supp. 42, 44

(D.S.C. Jan. 9, 1992) (“[Section 1983] guarantees a person’s constitutional

rights against violation by state actors. It does not provide any relief against

prison rule violations assuming, arguendo, that such a violation occurred.”)

(emphasis in original). The Court, therefore, will also dismiss this claim with

prejudice.

Finally, Plaintiff vaguely alleges that Defendants’ acts and failures to

act resulted from “Plaintiff’s activities (grievances and letters) supporting

prisoners rights,” including Plaintiff’s complaints regarding overcrowding at

Lincoln CC during the pandemic. [Doc. 1 at 7]. Plaintiff, however, does not

purport to state a claim under First Amendment for retaliation. Nonetheless,

inmates have a protected First Amendment right to complain to prison

officials about prison conditions and improper treatment by prison employees

that affect them. See Patton v. Kimble, 717 Fed. App’x 271, 272 (4th Cir.

2018). To state a colorable First Amendment retaliation claim, a plaintiff

must allege that (1) he engaged in protected First Amendment activity, (2)

the defendant took some action that adversely affected his First Amendment

rights, and (3) there was a causal relationship between his protected activity

and the defendant’s conduct. Martin v. Duffy, 977 F.3d 294, 299 (4th Cir.

2020) (quotation marks and citation omitted). Retaliation claims brought by

prisoners, however, are treated with skepticism because every act of

discipline by a prison official is retaliatory in that it responds directly to

prisoner misconduct. See Adams v. Rice, 40 F.3d 72, 74 (4th Cir. 1994).

Taking Plaintiff’s allegations as true and giving him the benefit of every

reasonable inference, Plaintiff has nonetheless failed to state a First

Amendment retaliation claim. That is, Plaintiff has not alleged that his First

Amendment rights were adversely affected by Defendants’ conduct. The

Court, therefore, will dismiss this claim.

Because none of Plaintiff’s claim survive initial review, the Court will

allow Plaintiff an opportunity to amend his Complaint to state a claim for

relief, but only as to those claims that were not dismissed with prejudice and

only if the facts support such amendment.

IV. CONCLUSION

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

Complaint fails initial review. The Court will allow Plaintiff thirty (30) days to

amend his Complaint, if he so chooses, to properly state a claim upon which

relief can be granted in accordance with the terms of this Order. Any

amended complaint will be subject to all timeliness and procedural

requirements and will supersede the Complaint. Piecemeal amendment will

not be permitted. Should Plaintiff fail to timely amend his Complaint in

accordance with this Order, the Court will dismiss this action without

prejudice.

ORDER

IT IS, THEREFORE, ORDERED that Plaintiff shall have thirty (30)

days in which to amend his Complaint in accordance with the terms of this

Order. If Plaintiff fails to so amend his Complaint, the matter will be

dismissed without prejudice.

The Clerk is respectfully instructed to mail Plaintiff a blank prisoner §

1983 form.

ITIS SO ORDERED. Signed: June 24, 2022

Martifi Reidinger ee

Chief United States District Judge AS

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