United States District Court, Middle District of North Carolina
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Joi Elizabeth Peake, United States Magistrate Judge.
This matter is before the Court on a Motion to Dismiss [Doc. #22] filed by Defendant Sami Hassan, as well as a Motion to Dismiss [Doc. #31] filed by Defendants Paula Smith, M.D., and Lewis Smith. Plaintiff Tommy Harris, proceeding pro se, has been advised of his right to respond to both motions and has filed a Response [Doc. #36]. For the reasons set out below, the Court recommends that Defendant Hassan’s Motion to Dismiss be denied, but that the Motion to Dismiss filed by Defendants Paula Smith and Lewis Smith be granted.
I. FACTS, CLAIMS, AND PROCEDURAL HISTORY
Plaintiff Harris is a North Carolina inmate and his allegations in this action filed pursuant to 42 U.S.C. § 1983 pertain to the period of time that he was incarcerated at the Albemarle Correctional Institution. He alleges that Defendants violated his Eighth Amendment right to be free from cruel and unusual punishment by showing deliberate indifference to his serious medical needs. Plaintiff Harris names Defendants in their official and individual capacities. He seeks declaratory and injunctive relief in addition to damages.
Plaintiff Harris names as Defendants W. David Guice, the Commissioner of Corrections; Dr. Paula Smith, section chief for medical services in the Department of Public Safety; Lewis Smith, the correctional administrator for Albemarle Correctional Institution; J. Godfrey, the assistant superintendent of programs for Albemarle Correctional Institution; Dr. Sami Hassan, the physician at Albemarle Correctional Institution; and Billie Martin, the nursing supervisor at Albemarle Correctional Institution.
Plaintiff alleges that on February 26, 2011, he was taken to the medical department at Albemarle Correctional Institution (“Albemarle CI”), for a “serious bite wound.” (Am. Compl. [Doc. #3] at 3.) According to Plaintiff, Nurse Honeycutt “commented that the finger looked broken and was given wipes and escorted to segregation.” (Id.) Plaintiff alleges that Defendant Hassan, the staff physician at Albemarle, “failed to show for two weeks, causing an infection to set in.” (Id. at 4.) Plaintiff says that his right index finger turned black and “swelling caused the nail to burst at the ends.” (Id.) He further says that antibiotics were ordered but no x-rays. Finally, Plaintiff says that “he, ” apparently referring to Dr. Hassan, put in a request that Plaintiff be seen by an orthopaedist.
Plaintiff alleges that on March 9, 2011, the same inmate that bit his right index finger attacked him again. Plaintiff says that the inmate used a coffee mug filled with soap to attack Plaintiff on his right temple, causing blurred vision and headaches. Plaintiff states that Dr. Hassan “waived a flashlight in front of [Plaintiff’s] face and informed [Plaintiff] there was no damage seen.”
Plaintiff further states that on April 6, 2011, he saw Dr. Benedict, the orthopaedist at Central Prison, who was “puzzled as to why this injury was not taken care of when it was first discovered” and said that now Plaintiff’s finger “would need to heal on its own.” Plaintiff alleges that he saw Dr. Benedict again on May 18, 2011, and Dr. Benedict “said that the joint was destroyed and that a bone fusion and possible bone graft would need to be done.” (Id.) Plaintiff had the bone fusion procedure done on July 26, 2011, and a screw was placed into his finger. Plaintiff says that he experienced “extreme pain” after his “medications wore off.” (Id.) Dr. Hassan ordered x-rays on October 24, 2011, which Plaintiff alleges showed “damage done to the finger.” (Id. at 5.)
Plaintiff states that on December 14, 2011, he was sent to Central Prison to have the screw removed by Dr. Benedict. However, Dr. Benedict was not there and another doctor was filling in for him. X-rays were performed and a physician’s assistant, C. Grant, attempted to remove the screw from Plaintiff’s finger. However, this procedure went awry, and Plaintiff’s finger was broken again. More x-rays showed his finger was broken. Plaintiff says that he was taken back to Albemarle without anything else being done for his broken finger. At Albemarle, the “medical staff initially acted indifferent, but [Plaintiff] was given ibuprofen and was to see Dr. Hassan the next day.” (Id. at 6.)
Plaintiff alleges that the next day, Dr. Hassan checked Plaintiff’s chart but initially refused to examine Plaintiff’s finger and told Plaintiff to “get out.” Plaintiff alleges that a nurse then explained the circumstances and Dr. Hassan asked to see Plaintiff’s x-rays from the previous day. Four weeks later, on January 11, 2012, Plaintiff was sent back to Central Prison to be seen by Dr. Summers. X-rays showed that a “triangle piece of bone” was missing from Plaintiff’s finger, and it would require another bone fusion, graft, and screw. Plaintiff says that on June 15, 2012, he was sent to Duke University Hospital for his second surgery to repair his finger, and a permanent pin was inserted. On July 16, 2012, he was sent back to Central Prison for a follow-up examination. He saw Dr. Sharon, who examined Plaintiff’s hand and diagnosed nerve damage. On September 10, 2012, Plaintiff was sent again to see Dr. Sharon at Central Prison, who confirmed nerve damage and “put in to see a Dr. Price at Duke University Hospital.” (Id. at 6-7.)
A. Rule 12(b)(6) Standard A plaintiff fails to state a claim on which relief may be granted under Federal Rule of Civil Procedure 12(b)(6) when the complaint does not “contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). With that standard in mind, courts construe a pro se complaint liberally and accept as true all factual allegations contained in the complaint. Erickson v. Pardus, 551 U.S. 89, 94 (2007).
B. Eighth Amendment Standard
Plaintiff claims that Defendants violated his Eighth Amendment right to be free from cruel and unusual punishment with regard to the medical treatment he received while incarcerated. To show a violation of the Eighth Amendment based on a failure to provide adequate medical care, Plaintiff must establish that the defendant acted with “deliberate indifference” to his “serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 104 (1976); Iko v. Shreve, 535 F.3d 225, 241 (4th Cir. 2008). The “serious medical need” component is objective and is a medical need that has been diagnosed by a physician as requiring treatment or one that is so obvious that even a non-physician would recognize the need for a doctor’s attention. Iko, 535 F.3d at 241. The deliberate indifference component is judged subjectively, meaning that the defendant knew of and disregarded the risk posed by the serious medical need. Id. To have been deliberately indifferent, the defendant must actually know of the risk of harm to the inmate, and must also have known that his actions were insufficient to mitigate the risk of harm to the plaintiff arising from his serious medical need. Id. “‘[D]eliberate indifference in this context lies somewhere between negligence and purpose or knowledge: namely, recklessness of the subjective type used in criminal law. Nevertheless, even under this subjective ...