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 pro se

Second Amended Complaint [Doc. 55]. Also pending are a Motion

for Frivolity Review of the Second Amended Complaint [Doc. 57] and a

Motion for Extension of Time to Answer [Doc. 59] filed by Defendants Mike

Slagle, Brandon Barrier, Norma Melton, and Gladys Jean Campbell. The

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

I. BACKGROUND

The 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 (RA) 29 U.S.C. § 791 et seq.1 The

Complaint named at least 37 state prison officials or personnel as

Defendants on allegations that they provided inadequate medical care at

several North Carolina prisons, including the Mountain View Correctional

Institution (MVCI). The Middle District dismissed all claims and Defendants

on initial review except for those connected to incidents that allegedly

occurred at MVCI, which claims it then transferred to this Court for further

proceedings. [See Docs. 11, 12].

When the case arrived in this Court, the Plaintiff’s pending Motion to

Amend/Update was denied but the Plaintiff was granted the opportunity to

amend, which he failed to do.2 [Doc. 15]. The Complaint passed initial

review for deliberate indifference to a serious medical need against

Defendants Slagle, Melton, Barrier and Campbell, and the remaining claims

were dismissed without prejudice. [Doc. 19]. The Plaintiff then moved to

supplement the Complaint. [Doc. 37]. The Motion was granted to the extent

that the Plaintiff made allegations against Defendants Slagle, Melton, Barrier

and Campbell for incidents that occurred after the Complaint was filed, but

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

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

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

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

the Motion was otherwise denied, and the Plaintiff was granted another

opportunity to amend. [Doc. 40]. The time to amend was extended [Docs.

48, 54], and the Second Amended Complaint is now before the Court for

initial review [Doc. 55].

The Plaintiff again names Slagle, Melton, Barrier, and Campbell as

Defendants. He additionally names: Ms. Prior, a psychologist; and Jeffrey

Patane, a physician’s assistant. [Doc. 55 at 1-4]. He asserts claims under

the Eighth Amendment, the Americans with Disabilities Act (ADA),3 the

Rehabilitation Act (RA),4 and “N.C. Gen. Stat. 735.40.7(5) and

#90.22.21(A)….” [Id. at 4]. The Plaintiff seeks compensatory and punitive

damages, a jury trial, and any other relief the Court deems necessary. [Id.

at 14].

II. STANDARD OF REVIEW

Because the Plaintiff is proceeding in forma pauperis, the Court must

review the Second 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);

3 The Plaintiff cites 42 U.S.C. § 12131.

4 The Plaintiff cites 29 U.S.C. § 794(a).

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, 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

The Plaintiff appears to reiterate his claims that the Defendants

violated the ADA and the RA by failing to provide him with adequate medical

treatment. [See Doc. 55 at 4]. These claims were dismissed on initial review

of the Complaint for failure to state a claim upon which relief can be granted,

and the present ADA and RA claims are dismissed for the same reasons.

[Doc. 19 at 7-8].

The Plaintiff’s claims for relief under the North Carolina General

Statutes Sections 735.40.7 and 90.22.21 were dismissed as frivolous by the

Middle District before the case was transferred to this Court. [See Doc. 12

at 3]. The Plaintiff’s present assertions of claims under “N.C. Gen. Stat.

735.40.7(5) and #90.22.21(A)” are likewise dismissed as frivolous because

no such sections exist, and the Court is unable to determine what claims the

Plaintiff is attempting to assert.

The Plaintiff reasserts claims against Defendants Slagle, Melton,

Barrier, and Campbell for deliberate indifference to a serious medical need.5

[Doc. 55 at 8-13]. The Plaintiff’s deliberate indifference claims previously

passed initial review against these Defendants [Doc. 19 at 10, 12; Doc. 40

at 3], and the present claims are likewise sufficient to proceed.

The Plaintiff also asserts deliberate indifference claims against

Defendants Patane and Prior. The Plaintiff claims, inter alia, that Defendant

Patane: said that the Plaintiff needed to see a psychiatrist but did not refer

him to one [Doc. 55 at 6]; “fraudulently” reported to an outside doctor that the

Plaintiff experienced side effects from gabapentin, whereas Patane had

refused to provide the Plaintiff with that medication [id. at 6]; prescribed the

Plaintiff NSAID medication while blatantly disregarding the Plaintiff’s

digestive issues from prior ibuprofen use [id. at 7]; and discontinued

5 The deliberate indifference standard is set forth in the Court’s Order on initial review of

the Complaint. [See Doc. 19 at 8-9].

medication when the Plaintiff missed an appointment through no fault of

Plaintiff’s, then refused to treat the Plaintiff when the appointment was

rescheduled [id.]. Liberally construing the allegations and drawing all

reasonable inferences in the Plaintiff’s favor, he has stated a claim against

Defendant Patane for deliberate indifference to a serious medical need.

The Plaintiff claims that Defendant Prior was deliberately indifferent by:

accepting the opinion of “medical personnel” that the Plaintiff was

exaggerating his symptoms and was a “hypochondriac/malingerer”; ignoring

the psychological effects and trauma from being forced to endure

“unnecessary mental anguish” for years; and “justif[ying] her labelling with a

test asking if [Plaintiff] saw dead people-or-heard voices….” [Doc. 55 at 13].

These allegations are too vague and conclusory to plausibly allege that the

Plaintiff had a serious psychological need.6 Moreover, even if the Plaintiff

did have a serious psychological need, the Plaintiff has failed to plausibly

allege that Defendant Prior was deliberately indifferent to such. The Plaintiff

has failed to plausibly allege that Defendant Prior had any reason to know

that medical personnel’s reports that the Plaintiff was a hypochondriac/

malingerer were inaccurate, and further, the allegations reveal that

6 “A serious psychological impairment can qualify as [a serious] medical need.” Buffington

v. Baltimore Cnty., Md., 913 F.2d 113, 120 (4th Cir. 1990).

Defendant Prior met with the Plaintiff and made at least some independent

effort to test the Plaintiff’s mental state. The allegations suggest, at most,

misdiagnosis or negligence by Defendant Prior rather than deliberate

indifference. See Miltier v. Beorn, 896 F.2d 848, 852 (4th Cir. 1990) (mere

negligence or malpractice does not violate the Eighth Amendment),

overruled in part on other grounds by Farmer v. Brennan, 511 U.S. 825

(1994). Accordingly, the deliberate indifference claim against Defendant

Prior is dismissed for failure to state a claim upon which relief can be granted.

Defendants Slagle, Barrier, Melton, and Campbell have filed Motions

asking the Court to review the Second Amended Complaint for frivolity [Doc.

57], and to extend the deadline to file an Answer for 30 days after the Court

rules on the Motion for frivolity review [Doc. 59]. The Motion for Frivolity

Review is granted insofar as the frivolity review of the Second Amended

Complaint is now complete. The Motion to extend the time to answer is

granted for 30 days from the date of this Order. In light of the deadline to file

an answer, the deadlines to complete discovery and to file dispositive

motions will be extended until January 16, 2023, and February 16, 2023,

respectively.

IV. CONCLUSION

For the foregoing reasons, the Court concludes that the Second

Amended Complaint has passed initial review on the Plaintiff’s claims

against Defendants Melton, Barrier, Campbell, Slagle, and Patane for

deliberate indifference to a serious medical need. The remaining claims are

dismissed. The Defendants’ Motion for Frivolity Review of the Second

Amended Complaint and Motion for Extension of Time to Answer are granted

as stated in this Order.

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 Patane, who is alleged to be a current or former employees

of NCDPS.

IT IS, THEREFORE, ORDERED that:

1. The Second Amended Complaint [Doc. 55] has passed initial

review against Defendants Barrier, Campbell, Melton, Slagle,

and Patane for deliberate indifference to a serious medical need,

2. The remaining claims are DISMISSED.

3. The Defendants’ Motion for Frivolity Review of the Second

Amended Complaint [Doc. 57] and Motion for Extension of Time

to Answer [Doc. 59] are GRANTED as stated in this Order.

4. The Answer is due within 30 days of this Order; the deadline to

complete discovery is January 16, 2023; and dispositive motions

are due by February 16, 2023.

5. | The Clerk of Court shall commence the procedure for waiver of

service as set forth in Local Civil Rule 4.3 for Defendant Jeffrey

Patane, who is alleged to be a current or former employee of

NCDPS.

IT IS SO ORDERED.

Signed: November 11, 2022

Martifi Reidinger ee

Chief United States District Judge AS