The opinion
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
1:23-cv-00248-MR-SCR
MARCUS DEVAN HUNTER, )
a/k/a VERSA DIVINE, )
)
Plaintiff, )
)
vs. ) ORDER
)
KIMBERLY GRANDE, et al., )
)
Defendants. )
________________________________ )
THIS MATTER is before the Court on Plaintiff’s “Motion for Leave to
File an Amended Complaint” [Doc. 16], which the Court construes as a
motion to file a supplemental pleading pursuant to Federal Rule of Civil
Procedure 15(d), and Plaintiff’s Motion for Reconsideration [Doc. 17].
Pro se Plaintiff Versa Divine (also known as Marcus Devan Hunter)
(“Plaintiff”) is a transgender female prisoner of the State of North Carolina
currently incarcerated at Alexander Correctional Institution in Taylorsville,
North Carolina.1 On August 29, 2023, Plaintiff filed this action pursuant to
42 U.S.C. § 1983 against the following Defendants: (1) Peter R. Buchholtz,
1 Because the Plaintiff has used inconsistent self-identifying gender pronouns in their
submissions to the Court, the Court will use the gender-neutral they/them/their gender
pronouns when referring to the Plaintiff.
“Commissioner of Corrections;” (2) Kimberly Grande, Executive Director of
the Inmate Grievance Resolution Board (IGRB); (3) Harold Reep, Foothills
Correctional Institution (“Foothills CI”) Warden; (4) Marc E. Dunn, Foothills
CI Unit Manager; (5) Eric L. Price, Foothills CI Unit Manager; (6) Marlene
Holcombe, Foothills CI psychologist and Director of Behavioral Health; (7)
Jeffry Lorborbaum, Foothills CI psychiatrist; (8) Newton D. High, Foothills CI
physician’s assistant; (9) FNU Abee, Foothills CI nurse manager and
member of the Foothills Transgender Accommodation Review Committee
(FTARC); and (10) J. Newton, Foothills CI Americans with Disabilities Act
(ADA) Coordinator. [Doc. 1 at 1-6]. Plaintiff sued Defendants in their
individual and official capacities. [Id. at 2, 4-6].
Plaintiff’s Eighth Amendment deliberate indifference individual
capacity claim against Defendants Dunn, High, Price, Holcombe, and Abee
based on their alleged denial of care for Plaintiff’s gender dysphoria and
Plaintiff’s Americans with Disabilities Act (ADA) official capacity claim against
Defendants Reep, Grande, Dunn, High, Price, Holcombe, and Abee survived
initial review.2 [Doc. 10 at 25]. Plaintiff’s remaining claims, including their
First Amendment retaliation claim, Eighth Amendment conditions of
confinement claim, Fourteenth Amendment due process and equal
2 The Court herein by reference incorporates its initial review Order in this matter.
protection claims, and Rehab Act claim, were dismissed for Plaintiff’s failure
to state a claim for relief. [See id.]. Defendants Buchholtz, Lorberbaum,
and Newton were also dismissed for Plaintiff’s failure to state a claim for relief
against them. [Id.]. The remaining Defendants’ waivers of service are due
by January 8, 2024. [11/9/2023 Docket Entry].
Now pending are Plaintiff’s motion for reconsideration and motion to
supplement their Complaint. [Docs. 16, 17]. Plaintiff moves to supplement
their Complaint with allegations of events that occurred at Foothills CI after
they filed the Complaint and to add four new Defendants in this matter, FNU
Johnson, clinical psychologist; Deorain Carson, Facility ADA Coordinator;
Sophia Feaster, Division ADA Coordinator; and Foothills CI. [Doc. 16]. The
Court will grant Plaintiff’s motion to supplement their Complaint with the new
factual allegations and conduct initial review relative to the new proposed
Defendants.3
In pertinent part, Plaintiff alleges as follows. On August 25, 2023, after
having suffered a panic attack while in Restrictive Housing for Administrative
Purposes, Plaintiff was restrained, extracted from their cell, and isolated for
72 hours. [Doc. 16 at 2]. Sometime later the same day, Defendant Reep
3 The Court will only address the allegations that relate to claims asserted against the new
proposed Defendants. None of Plaintiff’s supplemental allegations against the existing
Defendants raise or support any new or previously dismissed claim for relief.
came to Plaintiff’s cell and told them that Foothills CI offered a Therapeutic
Diversion Program that could be available to the Plaintiff if they were
assigned to Restrictive Housing for Control Purposes “(180 days or more).”
[Id. at 2-3].
The same day Plaintiff submitted a form DC-746 Inmate Reasonable
Accommodation Request (“IRAR”) “to be accommodated for Gender
Dysphoria and given access to treatment, support, inpatient behavioral
health services and housing, (i.e. Therapeutic Diversion Unit), peer support,
social transitioning, and developmental disability case management.” [Id. at
3]. On August 28, 2023, Facility ADA Coordinator Deorain Carson denied
Plaintiff’s IRAR. [Id.]. The next day, Division ADA Coordinator Sophia
Deaster denied Plaintiff’s IRAR “providing non-medical reasons and
inexplicable reasons.” [Id.].
On September 4 and November 1, 2023, Plaintiff attempted suicide by
hanging in their cell while in Restrictive Housing. [Id. at 3, 5]. After both
attempts, Plaintiff was placed on “self injurious protocol (SIP).” [Id. at 4-5].
On November 3, 2023, staff psychologist FNU Johnson took Plaintiff off SIP
after Plaintiff denied “[illegible] plans to commit suicide at that time.” [Id. at
5]. On November 21, 2023, while in Restrictive Housing, Plaintiff met with
Johnson and asked him to recommend that Plaintiff be assigned to the
Therapeutic Diversion Unit “due to Plaintiff’s behavioral and mental
conditions and needs and the fact that Plaintiff was assigned to Restrictive
Housing for Control Purposes.” [Id. at 6]. Johnson denied Plaintiff’s request
“stating the Plaintiff does not get along with anyone and that he did not know
the criteria for Placement in that mentioned program.” [Id.].
Based on these events, Plaintiff claims that Johnson, Carson, and
Feaster were deliberately indifferent to Plaintiff’s needs and failed to protect
the Plaintiff and, along with Foothills CI, discriminated against Plaintiff based
on their disability and violated their Fourteenth Amendment due process
rights.4 [Id. at 7]. Plaintiff also claims that Foothills CI violated their rights
under the Rehab Act. [Id. at 8-9].
Under Rule 15(d), a party may on motion “serve a supplemental
pleading setting out any transaction, occurrence, or event that happened
after the date of the pleading to be supplemented.” Fed. R. Civ. P. 15(d). “A
plaintiff may add new defendants via a supplemental pleading, but only if the
supplemental pleading relies ‘in good part on transactions, occurrences, and
events which had happened since the action had begun.’” Rush v. American
Home Mortg., Inc., No. WMN-07-854, 209 WL 2591342, at *2 (D. Md. Aug.
4 It also appears that Plaintiff also seeks to revive various claims against the original
Defendants that were dismissed on initial review. [See Doc. 16 at 7]. The Court
addresses these below.
19, 2009) (quoting Griffin v. County School Bd. of Prince Edward County,
377 U.S. 218, 226, 84 S.Ct. 1226 (1964)). Here, Plaintiff alleges that Carson
and Feaster denied Plaintiff reasonable accommodations for their Gender
Dysphoria under the ADA and that Johnson denied Plaintiff’s request for
recommendation to the Therapeutic Diversion Program. Plaintiff also
purports to amend their Complaint to state a claim against Defendant
Foothills CI under the Rehab Act and to state a claim for discrimination
against all Defendants.
The Court will also allow Plaintiff to supplement their Complaint to add
Defendants Carson and Feaster as Defendants in this matter in their official
capacities only for the alleged violation of Plaintiff’s rights under the ADA.
Plaintiff’s supplemental allegations are insufficient, however, to state any
other claim for relief against any of the proposed new Defendants or to state
a claim for discrimination against any original or new Defendant. Moreover,
Foothills CI is not a proper Defendant under § 1983 or the Rehab Act. See
See Brooks v. Pembroke Jail, 722 F.Supp. 1294, 1301 (E.D.N.C. 1989);
Gaines v. Putnamville C.F., 2016 WL 3902638, *2 (S.D. Ind. July 18, 2016).
Plaintiff also moves the Court to reconsider its initial review Order
dismissing some of Plaintiff’s claims.5 [Doc. 17]. In their motion, Plaintiff
states no grounds for relief, but rather cites law Plaintiff deems applicable to
their dismissed claims. [See Doc. 17-1]. Regarding motions to alter or
amend a judgment under Rule 59(e), the Fourth Circuit Court of Appeals has
stated:
A district court has the discretion to grant a Rule
59(e) motion only in very narrow circumstances: “(1)
to accommodate an intervening change in controlling
law; (2) to account for new evidence not available at
trial; or (3) to correct a clear error of law or to prevent
manifest injustice.”
Hill v. Braxton, 277 F.3d 701, 708 (4th Cir. 2002) (quoting Collison v. Int’l
Chem. Workers Union, 34 F.3d 233, 236 (4th Cir. 1994)). Furthermore, “Rule
59(e) motions may not be used to make arguments that could have been
made before the judgment was entered.” Id. “Mere disagreement [with a
court’s ruling] does not support a Rule 59(e) motion.” Hutchinson v. Staton,
994 F.2d 1076, 1082 (4th Cir. 1993). Indeed, the circumstances under which
a Rule 59(e) motion may be granted are so limited that “[c]ommentators
observe ‘because of the narrow purposes for which they are intended, Rule
5 In their motion, Plaintiff asks the Court “to review de novo Plaintiff’s complaint [and] ex
post facto amendments to Plaintiff’s complaints.” [Doc. 17 at 1]. It appears, therefore,
that Plaintiff wants the Court to reconsider its initial review Order in itself and in light of
Plaintiff’s supplemental pleading. The Court declines to do so. The Court already
reviewed Plaintiff’s supplemental allegations and determined which claims survived and
which did not. Moreover, the Rules do not allow the Court to “reconsider” something it
never considered it the first place.
59(e) motions typically are denied.’” Woodrum v. Thomas Mem’l Hosp.
Found., Inc., 186 F.R.D. 350, 351 (S.D. W. Va. 1999) (quoting 11 Charles
Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and
Procedure § 2810.1 (2d ed. 1995)).
Plaintiff has not shown the existence of the limited circumstances
under which a Rule 59(e) motion may be granted. That is, Plaintiff’s motion
does not present evidence that was unavailable when the Court issued its
initial review Order, nor does their motion stem from an intervening change
in the applicable law or a clear error of law. The Court, therefore, will deny
Plaintiff’s motion to reconsider.
ORDER
IT IS, THEREFORE, ORDERED that Plaintiff’s Motion [Doc. 16] is
GRANTED in accordance with the terms of this Order and Plaintiff’s ADA
claim against Defendants Carson and Feaster in their official capacities
passes initial review. Any other claims Plaintiff sought to assert in their
supplemental pleading are DISMISSED.
IT IS FURTHER ORDERED that Plaintiff’s Motion to Reconsider [Doc.
17] is DENIED.
IT IS FURTHER ORDERED that any original Defendant wishing to
respond to Plaintiff’s supplemental pleading [Doc. 16] shall do so within 21
days of this Order.
IT IS FURTHER ORDERED that the Clerk of Court shall commence
the procedure for waiver of service as set forth in Local Civil Rule 4.3 for
Defendants Deorain Carson and Sophia Feaster, who are alleged to be
current or former employees of the North Carolina Department of Adult
Corrections.
IT SO ORDERED. Signed: January 11, 2024
Sos ee
Chief United States District Judge “AES