Opinion

Jones v. Epley

Court
District Court, W.D. North Carolina
Filed
Jan 30, 2023
Cited by
0 cases
Authority
More cited than 24.9%

The opinion

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NORTH CAROLINA

ASHEVILLE DIVISION

1:22-cv-00239-MR

MARK LEE JONES, )

)

Plaintiff, )

)

vs. ) ORDER

)

FNU EPLEY, et al., )

)

Defendants. )

________________________________ )

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

Amended Complaint [Doc. 10] filed under 42 U.S.C. § 1983. See 28 U.S.C.

§§ 1915(e) and 1915A. Plaintiff is proceeding in forma pauperis. [Docs. 2,

7].

I. BACKGROUND

Pro se Plaintiff Mark Lee Jones (“Plaintiff”) is a prisoner of the State of

North Carolina currently incarcerated at Marion Correctional Institution

(“Marion”) in Marion, North Carolina. He filed this action on November 7,

2022, pursuant to 42 U.S.C. § 1983, claiming that Defendant Wiseman,

identified as a Lieutenant at Marion, and Defendant Epley, identified as Main

Medical Supervisor, were deliberately indifferent to his serious medical

needs. [Doc. 1; see Doc. 1-2]. In his original Complaint, Plaintiff alleged, in

pertinent part, the following. In March 2021, Plaintiff was assaulted while

housed at Stanley County Jail and received emergency medical care for

injury to his left eye. [Doc. 1 at 5]. On August 2, 2022, at approximately 2:30

a.m., Plaintiff was escorted by two officers to Marion’s main entrance to be

transported to an outside eye clinic for treatment related to this injury.

Defendant Epley denied Plaintiff transportation “because the cell phone

machine was acting crazy.” [Id. at 5]. The August 2022 appointment was

rescheduled for October 2022. Plaintiff, however, never went to the

rescheduled appointment at the eye clinic because medical falsely claimed

that Plaintiff refused to go to the August 2022 appointment. Defendant

Wiseman wrote Plaintiff on October 27, 2022, advising him that the eye clinic

had been closed for one year due to COVID. Plaintiff alleged, “[m]y thing is

if i was resceduled for (Oct 2022) why was i not transported to eye clinic?”

[Id. (errors uncorrected)].

On initial review of Plaintiff’s original Complaint, the Court found that

Plaintiff failed to state a claim for relief and allowed Plaintiff to amend his

Complaint. [Doc. 9]. Plaintiff timely amended his complaint, which is now

before the Court on initial review. [Doc. 10]. Plaintiff again names Defendants

Epley1 and Wiseman as Defendants in their individual capacities only. [Id.

at 2].

In his Amended Complaint, Plaintiff alleges as follows. In July 2021,

he was assaulted while housed at the Stanley County Jail. Since being at

Marion, Plaintiff has suffered pain to his left eye, dizziness, and severe

migraines, presumably due to this assault. Plaintiff has notified medical

numerous times, but “they” have failed to show concern or help Plaintiff with

his medical needs. On August 2, 2022, Plaintiff was “scheduled to see eye

care.” Defendant Epley canceled this appointment because Plaintiff had an

altercation with another officer. The appointment was rescheduled for

October 2022. Defendant Wiseman, however, intentionally “pushed back to

(6) months” this appointment “because of these legal claims being filed.” [Id.

at 5]. Plaintiff further alleges that he “was moved to the bottom of the

appointment list when legal claim was filed as retaliation” and that, if his

condition worsens, “it could cost [him his] sight.” [Id.].

For injuries, Plaintiff claims to suffer dizziness, “in-and-out” vision, and

severe migraines. [Id. at 5]. Plaintiff seeks monetary relief only. [Id.].

1 In the Caption of his Amended Complaint, Plaintiff names this Defendant as “Lt. Elby.”

[Doc. 10 at 1]. In the body of the Complaint, Plaintiff inconsistently refers to this Defendant

as “Epley” and “Elby.” [See id. at 2, 5].

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). The

Court will address the claims fairly raised by Plaintiff’s Amended Complaint,

which include a claim for deliberate indifference under the Eighth

Amendment and a claim for retaliation under the First Amendment.

A. Medical Care

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 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).

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

indifference to a serious medical need. Moskos v. Hardee, 24 F.4th 289,

298 (4th Cir. 2022); see Wynn v. Mundo, 367 F.Supp.2d 832 (M.D.N.C. Feb.

7, 2005). The objective prong requires a plaintiff to show that the alleged

delay put him at a “substantial risk” of “serious harm.” Id. (quoting Moss v.

Harwood, 19 F.4th 614, 625 (4th Cir. 2021)). “A commonplace medical delay

such as that experienced in everyday life will only rarely suffice to constitute

an Eighth Amendment violation, absent the unusual circumstances where

the delay itself places the prisoner at ‘substantial risk of serious harm,’ such

as where the prisoner’s condition deteriorates markedly or the ailment is of

an urgent nature.” Id.

Giving Plaintiff the benefit of every reasonable inference and ignoring

the discrepancies between Plaintiff’s original and Amended Complaints,

Plaintiff alleges only that Defendant Epley canceled Plaintiff’s August 2022

eye appointment because Plaintiff was in an altercation with another officer.

This is clearly insufficient to support an Eighth Amendment deliberate

indifference claim against Defendant Epley. As for Defendant Wiseman,

Plaintiff alleges, at best, that Defendant Wiseman “pushed back” Plaintiff’s

October 2022 eye appointment “to the bottom of the appointment list.” While

Plaintiff claims that he “could” lose his sight if his condition worsens, he

makes no allegations that any delay substantially increased any risk of harm

or caused his condition to deteriorate rapidly. Thus, Plaintiff allegation

against Defendant Wiseman is also plainly insufficient to state an Eighth

Amendment claim. See Wynn, 367 F.Supp.2d 832. The Court, therefore,

will dismiss Plaintiff’s Eighth Amendment claim.

B. Retaliation

An inmate has a clearly established First Amendment right to be free

from retaliation for filing lawsuits. See Booker v. S.C. Dep’t of Corrs., 855

F.3d 533, 540 (4th Cir. 2017); Thompson v. Commonwealth of Va., 878 F.3d

89, 110 (4th Cir. 2017). Inmates also 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).

More, bare or conclusory assertions of retaliation are insufficient to establish

a retaliation claim. Id., 40 F.3d at 74.

Here, Plaintiff alleges that Defendant Wiseman pushed back his

October 2022 eye appointment because Plaintiff filed “these legal claims.”

This claim is not well taken. Plaintiff made no such allegation in his original

Complaint, which was filed on November 7, 2022. In his original Complaint,

Plaintiff alleged that Defendant Wiseman contacted Plaintiff regarding the

cancelled appointment on October 27, 2022. Plaintiff signed his original

Complaint on November 4, 2022.2 [See Doc. 1 at 12]. It is factually

impossible for Defendant Wiseman to have “pushed back” Plaintiff’s October

2022 eye appointment in retaliation for a Complaint that was not filed until

the following month. Plaintiff’s own allegations, therefore, negate causation

2 Because exhaustion of administrative remedies is an affirmative defense, the Court did

not address the implausibility of Plaintiff having exhausted these remedies before filing

his Complaint. Notably, Plaintiff has not filed a verified Administrative Remedies

Statement with the Court.

between the protected activity and the adverse action. See Martin, 977 F.3d

at 299. Plaintiff, therefore, has failed to state a claim for retaliation. The

Court will dismiss this claim.

The Court will dismiss this action with prejudice because Plaintiff has

already been allowed to amend his complaint once and he has again failed

to state a claim for relief. See Green v. Wells Fargo Bank, N.A., 790 Fed.

App’x 535, 536 (4th Cir. 2020). Moreover, while Plaintiff did not assert the

retaliation claim in his original Complaint, he alleged facts in the Amended

Complaint that foreclose the possibility of sustaining this claim through

another chance at amendment. The Court need not allow another round of

amendment where such would be futile.

IV. CONCLUSION

For the reasons stated herein, the Court will dismiss Plaintiff’s

Amended Complaint with prejudice.

ORDER

IT IS, THEREFORE, ORDERED that Plaintiff’s Amended Complaint

[Doc. 10] is DISMISSED WITH PREJUDICE.

The Clerk is respectfully instructed to terminate this action.

IT IS SO ORDERED.

Signed: January 27, 2023

ee ae

Chief United States District Judge AU,

10

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