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Ellis v. Lewis

United States District Court, E.D. North Carolina, Western Division

September 3, 2014

SAMUEL ELLIS, Plaintiff,


LOUISE W. FLANAGAN, District Judge.

This matter comes before the court on defendant Dr. Ron Bell's ("Bell") motion to dismiss (DE 91) pursuant to Federal Rule of Civil Procedure 12(b)(6), which was fully briefed. In this posture, the issues raised are ripe for adjudication. For the following reasons, the court grants in part and denies in part Bell's motion to dismiss.


On June 4, 2012, plaintiff, a state inmate, filed this civil rights action pro se pursuant to 42 U.S.C. § 1983 against defendant Bell, Robert Lewis ("Lewis"), Dr. Paula Smith ("P. Smith"), Yvonne Locklear ("Locklear"), as well as previously-named defendants Glenn Williams ("Williams"), Hope Smith ("H. Smith"), Steve Bissell ("Bissell"), Bonnie Strickland ("Strickland"), and Sharon Kristoff ("Kristoff").[1] Plaintiff alleged that defendants acted with deliberate indifference to his serious medical needs in violation of the Eighth Amendment to the United States Constitution. Plaintiff sought declaratory and injunctive relief as well as compensatory and punitive damages. On October 30, 2012, the court conducted a frivolity review of plaintiff's action pursuant to 28 U.S.C. § 1915(e)(2)(B), and allowed plaintiff to proceed.

The court subsequently entered an order directing North Carolina Prisoner Legal Services ("NCPLS") to investigate plaintiff's claims to determine whether appointment of counsel was warranted. On April 1, 2013, NCPLS responded to the court's order of investigation, and informed the court that it would provide plaintiff representation in this action. Plaintiff subsequently voluntarily dismissed defendants Kristoff, Williams, Bissell, H. Smith, and Strickland from this action without prejudice.

On October 14, 2013, plaintiff filed a motion for leave to file an amended complaint, along with a proposed amended complaint. On November 21, 2013, the court entered an order granting plaintiff's motion to amend, and finding that plaintiff could proceed with his action against defendants Lewis, P. Smith, Locklear, Bell, and newly named defendant Teri Catlett ("Catlett"). Plaintiff filed his amended complaint on November 26, 2013.

On January 6, 2014, Bell filed his motion to dismiss pursuant to Rule 12(b)(6), arguing that plaintiff failed to state a claim and that plaintiff's action should, in part, be dismissed as time barred. The motion was fully briefed.


Viewing the facts in the light most favorable to plaintiff, the allegations in the complaint may be summarized as follows. Plaintiff, over a period of almost seven years, has endured debilitating pain as the result of an alleged botched gall bladder surgery which was performed while he was in the North Carolina Department of Public Safety's ("DPAC") custody. (Am. Compl. ¶ 3.) In the course of the surgery, plaintiff's hepatic artery and bile duct were injured causing plaintiff to have to undergo an emergency procedure to repair the damage. (Id.) As a result of the injuries he received during his gall bladder surgery, plaintiff suffers severe debilitating pain, abdominal cramping, nausea, vomiting, severe headaches, and severe uncontrolled acid reflux. (Id. ¶ 14.) Plaintiff required two additional surgeries in the following years. (Id. ¶ 3) In total, plaintiff has undergone four surgeries between 2006 and the filing of his amended complaint. (Id.)

Defendant Bell is a primary care provider at Lumberton Correctional Institution ("Lumberton"). (Id. ¶ 37.) Plaintiff was housed at Lumberton from April 2009 through July 2011. (Id.) Plaintiff arrived at Lumberton on April 14, 2009, and expressed constant complaints to defendant Bell about pain and discomfort. (Id. ¶¶ 223, 231.) Bell, in response, would often make light of plaintiff's pain and suffering or get angry at the plaintiff when plaintiff would complain about his condition. (Id. ¶ 232.) On June 9, 2009, plaintiff wrote a letter to defendant Dr. P. Smith explaining his situation and requesting assistance. (Id. ¶ 228.)

On December 21, 2009, after eight months of constant complaints about pain and discomfort, defendant Bell placed a Utilization Review ("UR") request to have plaintiff scheduled to see a surgeon. (Id. ¶ 231.) It then took more than five months for plaintiff to be taken to see the surgeon. (Id. ¶ 233.) During this time, plaintiff was suffering from multiple incarcerated hernias. (Id. ¶ 234.) An incarcerated hernia occurs where a loop of intestine becomes trapped in the weak point of the abdominal wall, obstructing the bowel, leading to severe pain, nausea, vomiting and may cause a lack of blood flow to part of the intestine which can lead to death. (Id. ¶ 235.) The UR management policy considers an incarcerated hernia to be a medical emergency and states that an incarcerated hernia indicates that surgery should occur within a few hours. (Id. ¶¶ 237-238.)

Plaintiff was transferred from Lumberton to Harnett Correctional Institution in July 2011. (Id. ¶ 17(g), (h).) Plaintiff did not receive his hernia surgery until February 14, 2012. (Id. ¶ 239.) Plaintiff states that defendants Locklear and Bell were responsible for plaintiff's delay in receiving surgery because they did not provide the UR board with necessary information to gain approval of the treatment, did not appropriately respond to "pended" or denied UR requests, and did not appeal UR decisions that denied plaintiff care. (Id. ¶ 240.) During the year that plaintiff awaited his hernia surgery, he suffered in severe pain without being provided adequate medical treatment. (Id. ¶ 244.)


A. Standard of ...

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