United States District Court, W.D. North Carolina, Charlotte Division
FRANK D. WHITNEY, Chief District Judge.
THIS MATTER is before the Court on a Motion to Dismiss filed by Defendant Ken Beaver. (Doc. No. 24).
On October 23, 2013, pro se Plaintiff Sherrad Davidson, a North Carolina state court inmate currently incarcerated at Lanesboro Correctional Institution in Polkton, North Carolina, filed this action, pursuant to 42 U.S.C. § 1983, purporting to bring claims against Defendants for excessive force and denial of medical care in violation of his constitutional right not to be subjected to cruel and unusual punishment under the Eighth Amendment to the U.S. Constitution. Plaintiff also alleges state law tort claims for assault, battery, and negligence against various Defendants. Plaintiff named as Defendants the following employees of Lanesboro Correctional Institution: Jane Davis, identified as a Sergeant with Lanesboro; John Lemon, identified as a Sergeant with Lanesboro; Jane Cole, identified as a Unit Manager of Lanesboro; Ken Beaver, identified as an Assistant Superintendent for Custody at Lanesboro; Jack Clelland, identified as an Assistant Superintendent for Programs at Lanesboro; two Correctional Officers with Lanesboro, both identified as having the name John Hinson; and Wendell Hargrave, identified as the Acting Correctional Administrator at Lanesboro. Plaintiff's action arises out of an incident that allegedly occurred at Lanesboro on July 5, 2013. Plaintiff alleged in the Complaint that:
On July 5, 2013, at about 4:30 pm, Sergeant Horne and Defendant Cole came to Plaintiff's cell door to address his requests for his medication for his diagnosis of schizophrenia, depression, hyper disorder and seizures. Defendant Cole told Plaintiff, "I'd rather give everybody else in here their medication before I even thought about giving you yours." Then she left. The plaintiff then began to set a fire. Shortly after these events, defendant Lemon accompanied by Defendants Hinson, Hinson, and Davis came to Plaintiff's cell to conduct an Emergency Cell Extraction. When Plaintiff's cell door was opened, he was knocked to the floor by the currents from the Electric Shock Shield where he was kicked, hit, and punched by Defendants Lemon, Hinson, and Hinson. During this assault one of the defendants stamped on plaintiff's left ankle, severely spraining it. Plaintiff made it out of the cell and was immediately surrounded by prison guards and placed in handcuffs. While Plaintiff was in handcuffs, Defendant Davis and Defendant Hinson began beating and striking Plaintiff with batons in the back of his head, neck, shoulders, and back. Plaintiff was carried from solitary confinement on Richmond Unit B-Block to the Nurse's Station on Anson Unit and he was slammed on his face on the concrete floor on the hallway outside the Nurse's Station. Plaintiff was the[n] picked up off the floor and taken inside the Nurse's Station where he was slapped on the left side of his face by defendant Davis' right hand. The plaintiff received lacerations to his face and numerous bruises and abrasions to his neck, shoulders, back, face, and head. Defendants Lemon, Davis, and Hinson are members of the Prison Emergency Response Team at Lanesboro. Defendants Lemon, Davis, and Hinson have repeatedly engaged in excessive force against inmates in the past. After the above-described assault, Plaintiff was placed in the Holding Cage on Anson Hospital and Lieutenant Hadley took pictures of Plaintiff's injuries. The Plaintiff was then taken to the emergency room of Anson Hospital, where his face was examined and he received three sutures for the lacerations on the right side of his face above his eye and his face on the right side had two broken bones that he was told would need surgery to repair. While the plaintiff was at Anson Hospital on July 5, 2013, the emergency room physician on duty told him, and wrote in an order that was to be sent back to the prison, that he would need surgery and he would need to see a Bone Specialist. On August 21, 2013, [Plaintiff] went to UNC Hospital to see a Bone Specialist. Plaintiff was told that it was too late to have surgery and it was going on six weeks, but surgery could still be done but it was up to DOC (Department of Corrections). Defendant Clelland is responsible for arranging for specialized medical care outside of the prison. On October 7, 2013, Plaintiff went to the Main Medical to see a[n] Optometrist. Plaintiff's eyesight is 20/50 in his Right Eye and plaintiff was told his condition would worsen. Since August 21, 2013, the plaintiff has received no response from the medical department about surgery on his face. The plaintiff is in great pain. On information and belief, if the plaintiff is not given surgery promptly, he risks permanent disability. The actions of defendants Lemon, Davis, Hinson, and Hinson in using physical force against the plaintiff without need or provocation, or in failing to intervene to prevent the misuse of force, were done maliciously and sadistically and constituted cruel and unusual punishment in violation of the Eighth Amendment of the United States Constitution. The actions of defendants Lemon, Davis, Hinson, and Hinson in using physical force against the plaintiff without need or provocation constituted the tort of assault and battery under the law of North Carolina. The failure of Defendant Cole in failing to intervene to prevent the misuse of force was done maliciously and sadistically and constituted cruel and unusual punishment in violation of the Eighth Amendment of the United States Constitution. The failure of defendant Beaver to take disciplinary or other action to curb the known pattern of physical abuse of inmates by defendants Lemon, Davis, and Hinson constituted deliberate indifference to the plaintiff's and other prisoners' safety and contributed to and proximately caused the above-described violation of Eighth Amendment rights and assault and battery. The failure of defendant Clelland to provide for the surgery and treatment of the broken bones in his face, constitutes deliberate indifference to the plaintiff's serious medical needs in violation of the Eighth Amendment to the United States Constitution. The failure of defendant Clelland to provide for the surgery and treatment of the broken bones in his face, constitutes the tort of negligence under the law of North Carolina.
(Doc. No. 1 at 6-7) (emphasis added).
On June 13, 2014, the Court found that the action survived initial review as to all Defendants except for Defendant Hargrave. (Doc. No. 15). On June 20, 2014, summonses were issued to the U.S. Marshal for service on Defendants Beaver, Cole, Davis, Lemon, and the two correctional officers both named John Hinson. (Doc. No. 16). On September 30, 2014, Defendant Beaver filed the pending motion to dismiss based on failure to state a claim, based on failure to exhaust administrative remedies, and based on public official immunity and qualified immunity. (Doc. No. 24). On the same day, Kearry Hinson filed an Answer, stating that Defendant had incorrectly identified him as John Hinson. (Doc. No. 23 at 1 n.2). On October 7, 2014, the Court entered an order granting Plaintiff fourteen days in which to respond to the motion to dismiss. (Doc. No. 26). On November 26, 2014, Plaintiff filed a motion for extension of time in which to respond to the motion to dismiss. (Doc. No. 27). The Court granted the motion for extension of time on December 4, 2014, giving Plaintiff thirty days from service of the order in which to respond. (Doc. No. 28). Plaintiff did not respond to the motion to dismiss.
On February 13, 2015, Plaintiff issued another order to Plaintiff, again giving Plaintiff fourteen days in which to respond to the motion to dismiss. (Doc. No. 33). The Court specifically encouraged Plaintiff to address Defendant Beaver's exhaustion argument. The Court also noted in the Order that summonses have been returned as unexecuted as to Defendants Cole, Davis, and Lemon. See (Doc. Nos. 30; 31; 32). The Court also observed that Plaintiff never returned a summons to the Clerk for service on Defendant Clelland. See (Doc. No. 16). The Court stated that Plaintiff had fourteen days in which to submit a memorandum to the Court explaining why these additional Defendants should not be dismissed based on failure to effectuate service on them. The Court explicitly warned Plaintiff that failure to respond could lead to dismissal of these Defendants without further notice. Plaintiff has not responded to the Court's order.
A. Defendant Beaver's Motion to Dismiss
Plaintiff's claim against the moving Defendant Beaver is solely based on Beaver's alleged failure to supervise the named Defendants who allegedly used excessive force against Plaintiff. Specifically, Plaintiff alleges in the Complaint that "[t]he failure of defendant Beaver to take disciplinary or other action to curb the known pattern of physical abuse of inmates by defendants Lemon, Davis, and Hinson constituted deliberate indifference to the plaintiff's and other prisoners' safety and contributed to and proximately caused the above-described violation of Eighth Amendment rights and assault and battery." (Doc. No. 1 at 6-7). As noted, Defendant Beaver has filed a motion to dismiss based on failure to state a claim, based on failure to exhaust administrative remedies, and based on public official immunity and qualified immunity. Because exhaustion of administrative remedies is a prerequisite to filing suit in the first instance, the Court first addresses Beaver's exhaustion argument.
The Prison Litigation Reform Act ("PLRA") requires that a prisoner exhaust his administrative remedies before filing a section 1983 action. 42 U.S.C. § 1997e(a). The PLRA provides, in pertinent part: "[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." Id. In Porter v. Nussle, 534 U.S. 516 (2002), the Supreme Court held that the PLRA's exhaustion requirement applies to all inmate suits about prison life. The Court ruled that "exhaustion in cases covered by § 1997e(a) is now mandatory." Id. at 524 (citation omitted). The Porter Court stressed that under the PLRA, exhaustion must take place before the commencement of the civil action in order to further the efficient administration of justice. Id.
In Woodford v. Ngo, 548 U.S. 81 (2006), the Supreme Court held that the PLRA exhaustion requirement requires "proper" exhaustion: "Administrative law... requir[es] proper exhaustion of administrative remedies, which means using all steps that the agency holds out, and doing so properly (so that the agency addresses the issues on the merits).'" Id. at 90 (quoting Pozo v. McCaughtry, 286 F.3d 1022, 1024 (7th Cir. 2002)). In Jones v. Bock, 549 U.S. 199 (2007), the Supreme Court stated: "There is no question that exhaustion is mandatory under the PLRA and that unexhausted claims cannot be brought in court." Id. at 211 (citing Porter, 534 U.S. at 524).
Plaintiff alleges in his Complaint that he has exhausted his administrative remedies and he states that he filed a grievance on July 8, 2013, based on "being assaulted by Correctional Staff while in handcuffs." (Doc. No. 1 at 2). Defendant Beaver has attached to the motion to dismiss the grievance filed by Plaintiff on July 8, 2013. See (Doc. No. 25-3 at 3: Def.'s Ex. A). In the grievance, Plaintiff complained that on July 5, 2013, he was "brutally assaulted" by several of the Defendants while he was in handcuffs. (Id.). In support of the motion to dismiss, Defendant Beaver contends that Plaintiff did not exhaust his administrative remedies as to Beaver because the grievance does not name Beaver, does not allege ...