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Nunn v. Legislation

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

April 15, 2015

MYRON RODERICK NUNN, Plaintiff,
v.
N.C. LEGISLATION, FRANK L. PERRY, GEORGE T. SOLOMON, FINESSE COUCH, TODD PINION, ROBERT JONES, BELINDA DUDLEY, RICHARD NEELY, DEAN LOCKLEAR, TIM CURLY, ROBERT WILLIAMS, JAMES HOLMES, ANGIE BENGE, JEFF WILKERSON, MRS. CAMERON, MR. SANDERS, MR. MCCLAIN, DR. MILTON D. WESTBERG, NURSE NELSON, DR. LANCE, THE NC UTILIZATION REVIEW BOARD, MR. PRICE, MS. CLARK, COL RESPASS, and RICKY MATTHEWS, Defendants.

ORDER

LOUISE W. FLANAGAN, District Judge.

Plaintiff, a state inmate, filed his eighth civil rights action pro se pursuant to 42 U.S.C. § 1983 in this district. The matter is before the court in response to its December 22, 2014, order directing plaintiff to particularize his action, and the court's frivolity review of plaintiff's particularized complaint pursuant to 28 U.S.C. § 1915(e)(2)(B). Also before the court is plaintiff's motion for injunctive relief (DE 26). Because defendants have not yet been served in this case, they have not responded to plaintiff's motion. In this posture, the issues raised are ripe for adjudication.

A. Motion for Injunctive Relief

The court construes plaintiff's motion for injunctive relief as a request for a temporary restraining order.[1] See Watson v. Garman, No. 7:12-cv-00037, 2012 WL 664066, at *1 (W.D. Va. Feb. 29, 2012) (construing motion for a preliminary injunction as one for a temporary restraining order where the defendants have not yet been served). Temporary restraining orders are governed by Rule 65 of the Federal Rules of Civil Procedure, which provides that a temporary restraining order shall not issue in the absence of "specific facts... [which] clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition." Fed.R.Civ.P. 65(b)(1)(A). The United States Supreme Court has stated that the movant must establish the following to obtain a temporary restraining order or a preliminary injunction: (1) that he is likely to succeed on the merits; (2) that he is likely to suffer irreparable harm in the absence of preliminary relief; (3) that the balance of equities tips in his favor; and (4) that an injunction is in the public interest. Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 20 (2008).

Here, plaintiff has not demonstrated that he likely is to succeed on the merits, nor has he alleged facts necessary to demonstrate that he likely would suffer irreparable harm if his motion is not granted. Finally, plaintiff has not demonstrated that his request for a temporary restraining order is in the public interest or that the balance of equities tips in his favor. Accordingly, plaintiff's motion for a temporary restraining order is DENIED.[2]

B. Frivolity Review

Section 1915 provides that courts shall review complaints in which prisoners seek relief from a governmental entity or officer and dismiss such complaints when they are "frivolous." 28 U.S.C. § 1915(e)(2)(B)(i). A complaint may be found frivolous because of either legal or factual deficiencies. First, a complaint is frivolous where "it lacks an arguable basis... in law." Neitzke v. Williams, 490 U.S. 319, 325 (1989). Legally frivolous claims are based on an "indisputably meritless legal theory" and include "claims of infringement of a legal interest which clearly does not exist." Adams v. Rice, 40 F.3d 72, 74 (4th Cir. 1994) (quoting Neitzke, 490 U.S. at 327). Under this standard, complaints may be dismissed for failure to state a claim cognizable in law, although frivolity is a more lenient standard than that for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Neitzke, 490 U.S. at 328. Second, a complaint may be frivolous where it "lacks an arguable basis... in fact." Id. at 325. Section 1915 permits federal courts "to pierce the veil of the complaint's factual allegations and dismiss those claims whose factual contentions are clearly baseless." See Denton v. Hernandez, 504 U.S. 25, 32 (1992) (citing Neitzke, 490 U.S. at 327).

Plaintiff's pleading is not a model of clarity. Plaintiff appears to raise claims largely involving his medical care at Tyrell Prison Work Farm ("Tyrell"), Pasquotank Correctional Institution ("Pasquotank"), New Hanover Correctional Center ("New Hanover"), Piedmont Correctional Institution ("Piedmont"), Catawba Correctional Institution ("Catawba"), and Southern Correctional Institution ("Southern").[3] The court will address plaintiff's claims arising at these various correctional facilities in turn.

"To state a claim under [section] 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law." West v. Atkins, 487 U.S. 42, 48 (1988); Philips v. Pitt Cnty. Mem'l Hosp., 572 F.3d 176, 180 (4th Cir. 2009). Additionally, a section 1983 plaintiff must allege the personal involvement of a defendant. See, e.g., Ashcroft v. Iqbal, 556 U.S. 662, 676 (4th Cir. 2009); Monell v. Dep't of Soc. Servs., 436 U.S. 658, 691-92 (1978); Wright v. Collins, 766 F.2d 841, 850 (4th Cir. 1985). Deliberate indifference to a prisoner's serious medical needs violates the Eighth Amendment. See Estelle v. Gamble, 429 U.S. 97, 104 (1976). To prove such a claim, a prisoner "must demonstrate that the officers acted with deliberate indifference' (subjective) to [his] serious medical needs' (objective)." Iko v. Shreve, 535 F.3d 225, 241 (4th Cir. 2008) (quoting Estelle, 429 U.S. at 104). In cases involving the denial or delay in providing medical treatment to a prisoner, the prison official must know of and disregard an objectively serious condition, medical need, or risk of harm. See, e.g., Sosebee v. Murphy, 797 F.2d 179, 182-83 (4th Cir. 1986). A prisoner, however, is not entitled to choose his course of treatment. See Russell v. Sheffer, 528 F.2d 318, 318-319 (4th Cir. 1975) (per curiam). Likewise, mere negligence in diagnosis or treatment does not state a constitutional claim. See, e.g., Estelle, 429 U.S. at 105-06.

Beginning with plaintiff's claims arising at Tyrell, plaintiff alleges:

In December 2013 Dr. Milton D. Westberg prescribed an ace inhibitor that gave rise to a chronic cough and structural lung damage. Also, in 2011 Westberg over medicated plaintiff with Metformin which dropped his sugar and deteriorated his vision. Further, Westberg prescribed insulin injections twice daily and sugar checks three times a week. Staff at Pender Correctional Institution rejected this erroneous order.

(Am. Compl. pp. 3-4)

Although plaintiff asserts that defendant Westberg's efforts in treating plaintiff's medical needs were not effective, the fact that defendant's treatment was not effective does not give rise to a constitutional violation. See e.g., Russell, 528 F.2d at 319; Starling v. United States, 664 F.Supp.2d 558, 569-70 (D.S.C. 2009); see also, Johnson, 145 F.3d at 167 (finding that negligent acts are not sufficient to establish a constitutional violation). Further, to the extent plaintiff alleges that medical professionals at Pender Correctional Institution disagreed over how best to treat plaintiff, such disagreement does not support a claim of deliberate indifference. See, e.g., United States v. Clawson, 650 F.3d 530, 538 (4th Cir. 2011); Wright v. Collins, 766 F.2d 841, 849 (4th Cir. 1985); Bowring v. Godwin, 551 F.2d 44, 47-48 (4th Cir. 1977). Finally, plaintiff, notably, does not allege that defendant Westberg actually knew of and disregarded any of plaintiff's medical needs or that Westberg intended to harm plaintiff. Rather, plaintiff appears to allege that defendant Westberg should have chosen another course of treatment, which, at most, constitutes negligence which is not actionable pursuant to § 1983. See Johnson, 145 F.3d at 167. Based upon the foregoing, plaintiff fails to state an Eighth Amendment violation, and these claims are DISMISSED, without prejudice, for failure to state a claim pursuant to § 1915(e)(2)(B)(ii).

The court next addresses plaintiff's allegations related to his incarceration at Pasquotank in April 2014. ...


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