United States District Court, E.D. North Carolina, Western Division
LOUISE W. FLANAGAN, District Judge.
The matter comes before the court on defendant's motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) (DE 36), which was fully briefed. Also before the court is plaintiff's unopposed motion to amend his complaint (DE 40). In this posture, the issues raised are ripe for adjudication. For the following reasons, the court grants plaintiff's motion to amend and grants defendant's motion to dismiss.
STATEMENT OF THE CASE
On September 21, 2012, plaintiff filed this action pursuant to 42 U.S.C. § 1983, alleging that defendant Banjoko Ofore Correll ("Correll") acted with deliberate indifference to prison conditions in violation of the Eighth Amendment to the United States Constitution. Plaintiff also alleged that a John Doe physician defendant acted with deliberate indifference to his medical needs in violation of the Eighth Amendment. Correll subsequently filed a motion to dismiss pursuant to Rule 12(b)(6), arguing that plaintiff failed to allege a constitutional violation. Alternatively, Correll asserts the affirmative defense of qualified immunity. The motion was fully briefed.
On October 28, 2013, plaintiff moved to amend his complaint to include an Eighth Amendment claim against Dr. Catherine A. Evans ("Evans"), alleging that Evans acted with deliberate indifference to plaintiff's serious medical needs in violation of the Eighth Amendment. Correll did not respond to plaintiff's motion to amend.
STATEMENT OF FACTS
Viewing the facts in the light most favorable to plaintiff, plaintiff makes the following allegations. On January 31, 2012, while incarcerated at Central Prison, Correll escorted plaintiff to the shower while plaintiff was handcuffed behind his back. Plaintiff states that Correll did not escort him "with a soft touch to make sure that the plaintiff would not slip and fall and hurt himself, which is recommended inside of the D.O.C. policy and procedure that states whenever an inmate is being escorted on a wet or un-even surface, staff must escort them with a soft touch by their arm to make sure that the inmate doesn't fall or hurt himself inside of the process of being escorted from one place to another." (Compl. p. 3.)
As plaintiff entered the shower, "he slip[ped] and fell very hard and violently, due to the shower not requiring a shower mat which the plaintiff had been requesting on numerous occasions, due to inmates slipping and falling hurting themselves in the pas[t]." ( Id. p. 4.) Plaintiff's prior request for a shower mat was denied. After the fall, plaintiff was transported to the hospital for x-rays and was diagnosed with a fractured arm.
Once the x-rays were complete, plaintiff was "sent back to his cell, and was only giv[en] Ibuprofen for pain, and was told that he would be seen by a Doctor the next day... But the plaintiff was denied adequate medical care, where he was force to l[a]y inside of his cell for 8 days in severe and extreme pain where the plaintiff couldn't sleep, eat, write his family, brush his teeth or participate inside of normal daily activities due to the severity of his injury." (Id.) Plaintiff further states that he was "intentionally denied medical care for days where he wasn't seen by a Doctor until Feb. 8th 2012, where a cast was placed on his arm[.] On March 7th the plaintiff was seen by Dr. John, who the plaintiff had tried on numerous occasions to get the defendant(s) names who had participated inside of this incident but was constantly denied the right to obtain any of the defendants names." ( Id. p. 6.) "The plaintiff had requested on numerous occasions for Dr. John Doe to prescribe him pain medication, but the defendant refused to do so, leaving the plaintiff in pain, after he knew that the plaintiff had done constantly complained about the pain that he was experiencing in his arm, because he had done place in numerous of sick call. The plaintiff had also requested for x-rays to be done on his back, due to the extreme, and severe paint that he was having inside of his upper and lower back area." (Id.)
A. Motion to Amend
Plaintiff seeks to amend his complaint to include Evans as a defendant in this action. Pursuant to Federal Rule of Civil Procedure 15, a plaintiff may amend a pleading before trial once as a matter of course within twenty-one (21) days of service, or "if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier." Plaintiff filed his motion to amend before defendants filed a responsive pleading, and plaintiff's complaint is the type of pleading that requires a responsive pleading. Thus, plaintiff's first motion to amend is ALLOWED as a matter of course. Scinto v. Stansberry , 507 F.App'x 311, 312 (4th Cir. 2013). The court ALLOWS plaintiff to proceed against Evans, and the Clerk of Court is DIRECTED to add Evans as a defendant in this action.
B. Motion to Dismiss
1. Standard of ...