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