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Tate v. Martin

United States District Court, Middle District of North Carolina

March 21, 2014

TERRENCE EDMOND TATE, Plaintiff,
v.
BILLIE MARTIN, J. KELLY, and KENNETH M. JONES, Defendants.

MEMORANDUM OPINION AND ORDER

THOMAS D. SCHROEDER, District Judge

Plaintiff Terrence Edmond Tate, a prisoner in the custody of the State of North Carolina, brought this action pursuant to 42 U.S.C. § 1983. (Docs. 4, 9.) He alleges that several prison administrators, Defendants Billie Martin, Jerry Kelly, Jr., [1] and Kenneth Jones, denied him adequate medical care and housing in prison by failing to diagnose and treat his pneumonia, which resulted in hospitalization, and by exposing him to secondhand tobacco smoke – all in violation of the Eighth Amendment. (Doc. 4 at 3.) Before the court is Defendants’ motion for summary judgment on all claims. (Doc. 30.) For the reasons set forth below, the motion will be granted.

I. BACKGROUND

The facts, in the light most favorable to Tate, establish the following:

Beginning in April 2004, Tate was incarcerated at Albemarle Correctional Institution (“ACI”). (Doc. 4 at 9.) On Thursday, January 12, 2006, he declared a medical emergency, complaining of chest pain. (Doc. 9 at 2 (reporting date as January 11); Doc. 26-1 at 35.) Dr. Sami Hassan, the doctor at ACI, examined Tate. Although Tate reported chest pain, he presented with no cough, no shortness of breath, and no cardiac history. (Doc. 26-1 at 35.) An ear, nose, and throat exam was normal, his oxygen saturation was 99%, and his blood pressure was 138/92. (Id.) Tate reported he had been lifting weights a day earlier; he “[i]ncline presses 225 [pounds].” (Id.) The doctor believed Tate had pulled a muscle, so he gave him medication and instructed him not to engage in any strenuous activities or sports. (Id.; id. at 43, 46.)

Two days later, on Saturday, January 14, Tate again declared a medical emergency, saying that he was unable to breathe. (Id. at 35.) According to a medical staff member, however, he was “talking continually while in medical, ” presented no acute respiratory distress, and his breathing was regular and even. (Id.) His oxygen saturation was 98-99%. (Id.) He was given Tylenol for his discomfort and told to continue his present medications. (Id.)

The following day, Sunday, January 15, Tate was examined by medical staff at the request of a corrections officer, who observed Tate lying on the floor of his cell. (Id. at 34.) The incident was not reported as a medical emergency. (Id. (“No code 900 called.”)) Tate again complained of chest pain and demanded an X-ray. (Id.) Medical staff examined him and determined that his lungs were clear and that he was in “no distress.” (Id.) The nurse noted Tate’s “facial grimaces” and somewhat limited range of motion; yet, his vital signs appeared normal, with blood pressure at 120/70 and oxygen saturation at 98-99%. (Id.) Tate was directed to continue his medications and to follow up. (Id.)

The following day, Monday, January 16, Tate again declared a medical emergency, complaining of chest pain. (Id.) He was seen by the medical staff, who noted that his breathing was “deep, even, and unlabored” and that he was “yelling at staff, stating ‘what do I need to do to get out of here?’” (Id. at 33-34.) He was examined again; his skin was warm and dry, his lips and nail beds were pink, and his blood pressure was 118/68. (Id. at 34.) Tate was instructed to rest and take his medications as ordered. (Id. at 33.)

On Tuesday, January 17, Dr. Hassan returned to ACI and examined Tate again.[2] (Id. at 42.) Dr. Hassan noted that Tate complained of a cough and left-sided chest pain, but the doctor found that Tate was in no acute distress. (Id.) Dr. Hassan transferred Tate to Stanly Memorial Hospital (“SMH”) for further testing. (Id. at 46.) There, Dr. Michael Hadnagy examined Tate and ordered an X-ray, which revealed “near complete opacification of the left hemi-thorax due to a combination of pulmonary consolidation and accumulating pleural fluid.” (Id. at 47.) In other words, there was fluid in Tate’s left lung and excess fluid in the space surrounding that lung, which made it appear nearly opaque on the X-ray. Dr. Hadnagy found that Tate was in “no acute distress.” (Id. at 46.) The doctors at SMH recommended that Tate be transferred to a hospital in Charlotte, North Carolina, for “definitive care.” (Id. at 58.)

Tate was admitted to the Charlotte hospital the following day.[3] (Id.) Once there, he underwent a “bronchoscopy, left thoracotomy and decortication of the left lung.”[4] (Id. at 54.) In layman’s terms, a surgeon, Dr. Charles Harr, cut into Tate’s chest and removed part of a lobe of his left lung. Dr. Joseph Lang, who consulted on Tate’s case, “suspect[ed] . . . community-acquired pneumonia” had caused the build-up of pleural fluid. (Id. at 52.) Pneumonia was also the diagnosis on his discharge papers. (Id. at 54.) Tate recuperated in the hospital for about ten days and was discharged on January 30. (Id. at 54-56.)

Upon his discharge, Tate was housed at Piedmont Correctional Institution (“PCI”). (Id. at 50; Doc. 4 at 9.) He was discharged from regular medical care at PCI on February 27 (Doc. 26-1 at 48) and transferred back to ACI on March 2 (Doc. 34 at 3). On March 27, Dr. Harr “recommend[ed] [a] smoke free area to [decrease][5] risk of recurrent infection, ” released Tate from his weight-lifting restrictions, and recommended pneumococcal and flu vaccines. (Doc. 26-1 at 44.) On March 30, Dr. Hassan noted that the patient “needs smoke free facility Rec. Cardiovas. & Pulm.” (Doc. 31-1 at 26.) Tate asserts that those recommendations were followed and he was transferred back to PCI for approximately 16 months, until July 2007. (Doc. 35 at 2.) According to Tate, PCI was the only smoke-free facility in North Carolina at the time. (Id.) On July 10, 2007, he was transferred back to ACI. (Id.) Nine days later, Dr. Hassan again noted that Tate “needs smoke free facility per Cardiology & Pulm. recs. in past.” (Doc. 31-1 at 27.)

Tate alleges that, despite the doctors’ recommendations, he remained at ACI and was exposed to secondhand tobacco smoke that caused chest pain while he was recuperating from emergency lung surgery. (Doc. 34 at 9.) He states that until he left ACI in 2008 (the exact date is not indicated), he witnessed fellow inmates smoking in the dorms, medical staff smoking in front of the medical building, and other staff members smoking on the sidewalks and on the basketball court on “numerous” occasions. (Id.) Tate “had to pass through a cloud of smoke to go eat, ” because staff smoked “in front of Master Control” outside the dining facility. (Id.) Another inmate attested to “daily” presence of secondhand smoke at ACI during 2007 and 2008 -including on the path outside the dining facility and outside “on the edge of the basketball court which is approximately 20 feet from the weight pile” - and stated that staff members, rather than inmates, were smoking.[6] (Id. at 10.)[7]

On July 23, 2007, Defendant Martin advised Tate that smoking was not permitted indoors at ACI and was allowed outside only in designated areas. (Doc. 31-1 at 6, 30.) She also told him that it was his responsibility to report smoking violations to staff if he believed the rules were being violated. (Id. at 6, 30.) She told him it was not the responsibility of the medical staff to move him to avoid exposure to secondhand tobacco smoke. (Id. at 30.) According to Tate, on August 17, 2008, a nurse informed him that Martin stopped his transfer to a smoke-free facility.[8] (Doc. 34 at 4.)

On August 22, 2007, Tate filed a grievance, complaining about his exposure to secondhand tobacco smoke and requesting a transfer to a smoke-free facility. (Id.; Doc. 31-2 at 6.) Defendant Kelly, who was the unit manager at the time, reviewed the grievance on August 30 and repeated Martin’s statement: ACI only allows smoking in designated outdoor areas, and Tate should report any violations to management. (Doc. 31-2 at 6.) Defendant Jones, who is a grievance examiner with the Inmate Grievance Resolution Board (“IGRB”), reviewed the file on October 31, approved of the actions taken, and considered the grievance resolved. (Id. at 5; Doc. 31-3 at 1-2).

Tate remained at ACI until sometime in mid-2008. The record is not clear on exactly when he left, but medical notes show he was still at ACI on March 5, 2008 (Doc. 31-1 at 30), and a health screening shows he had left ACI and was at Mountain View Correctional Institution by July 8, 2008 (Doc. 31-4 at 14). During Tate’s stay at ACI (which was 9 to 12 months) he never filed any other grievance related to secondhand smoke. The only other grievance he filed related to obtaining winter clothing. (Doc. 9 at 15-17.) There is no record of Tate being refused any requested medical consult or treatment relating to his lungs or secondhand tobacco smoke.

In his subsequent visits to the medical clinic while he was at ACI, Tate never related any symptom to, or even mentioned, secondhand smoke. On August 31, 2007, Tate collapsed or “dropped out” while mowing the lawn. (Doc. 31-1 at 30.) He alleges that a prison officer[9] forced him to cut grass, even though his medical restrictions prevented him from performing that kind of work and he did not have proper boots. (Doc. 9 at 8.) The medical staff examined him and sent him back to housing to rest. (Doc. 31-1 at 30.) Tate claims he did not file a grievance against the officer because he feared retaliation. (Doc. 9 at 9.) Then, on March 5, 2008, the medical staff examined him for a pulled hamstring. (Doc. 31-1 at 30.) There is no record of any other medical visit or grievance from July 2007 to July 2008.[10]

Tate filed his initial pro se complaint on August 2, 2010, which was then struck for failure to use the correct ยง 1983 forms. (Docs. 2, 3.) He filed a corrected complaint on September 15, 2010, and an amended complaint on November 1, 2010. (Docs. 4, 9.) He is suing all three Defendants in their individual and official capacities. Documentation of several of his grievances is included in the complaints. Defendants answered, asserting several defenses, including sovereign immunity and the statute of limitations. (Doc. 21.) ...


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