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McClary v. Lightsey

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

March 2, 2017

RONALD MCCLARY, Plaintiff,
v.
JOSEPH LIGHTSEY, MITCHELL LAWSON, NURSE HENDERSON, and NURSE SIERRA, Defendants.

          ORDER

          LOUISE W. FLANAGAN United States District Judge.

         The matter now comes before the court on defendants' motions for summary judgment (DE 42, 55, 66). The issues raised have been fully briefed and are ripe for adjudication. For the following reasons, the court grants defendants' respective motions for summary judgment and declines to exercise supplemental jurisdiction over plaintiff's remaining state law claims.

         STATEMENT OF THE CASE

         For ease of reference the statement of the case as set forth in the court's February 8, 2016, order is as follows:

Plaintiff filed McClary I on February 5, 2014, and named defendant Joseph Lightsey (“Lightsey”) and the North Carolina Department of Public Safety (“DPS”) as defendants in the action. Plaintiff alleged that defendants acted with deliberate indifference to his serious medical needs in violation of the Eighth Amendment to the United States Constitution by failing to provide him surgery for his hernia. Plaintiff subsequently filed two motions to amend his complaint and alleged that defendants Lightsey, Mitchell Lawson (“Lawson”), Nurse Henderson (“Henderson”), and Nurse Sierra (“Sierra”) acted with deliberate indifference to plaintiff's urological needs in violation of the Eighth Amendment. Plaintiff additionally alleged in an amended pleading that defendant Lightsey acted with deliberate indifference to his serious medical needs when Lightsey punched plaintiff in “the womb, ” on March 14, 2014, after having surgery.
On October 7, 2014, the court entered an order in McClary I and granted plaintiff's motions to amend. The court additionally dismissed without prejudice plaintiff's claim that Lightsey and DPS failed to provide plaintiff with surgery for his hernia on the grounds that plaintiff failed to comply with 42 U.S.C. § 1997(e)a's requirement that he exhaust his administrative remedies prior to filing this action. The court additionally dismissed without prejudice plaintiff's claim that Lightsey punched plaintiff in the womb on March 14, 2014, for failure to exhaust administrative remedies because it arose subsequent to the date plaintiff filed this action. Finally, the court DIRECTED plaintiff to notify it whether plaintiff exhausted his administrative remedies for his remaining claims against Lightsey, Lawson, Henderson, and Sierra prior to filing McClary I.
Plaintiff subsequently responded to the court's October 7, 2014, order. Then, on November 7, 2014, the court entered an order vacating the October 7, 2014, dismissal of plaintiff's claims for failure to exhaust and noted an intent to reserve the issue for a later date. The court also allowed plaintiff to proceed with his Eighth Amendment claims against Lightsey, Lawson, Henderson, and Sierra. Plaintiff subsequently filed two motions to amend his complaint in McClary I, as well as a motion for discovery.
On June 9, 2014, plaintiff filed a second § 1983 action pro se in McClary II. Plaintiff alleged that Lawson acted with deliberate indifference to plaintiff's serious medical needs in violation of the Eighth Amendment because Lawson refused to provide medical care despite the fact that plaintiff had symptoms of prostate cancer.
Finally, on October 30, 2014, plaintiff filed a third § 1983 action pro se in McClary III naming Lightsey as a defendant. Plaintiff alleged that Lightsey acted with deliberate indifference to his serious medical needs because Lightsey refused to provide post-operative care following plaintiff's hernia surgery. Plaintiff subsequently filed a motion to amend his complaint.
On December 16, 2014, the court entered an order consolidating McClary I, II, and III, and designated McClary I as the lead case. The court granted plaintiff's motions to amend and directed him to file a particularized complaint. The court also denied plaintiff's motion for discovery as premature. Finally, the court directed the clerk of court to add Lawson, Henderson, and Sierra as defendants in this action. On December 30, 2014, United States Magistrate Judge Robert B. Jones, Jr. signed a consent order, filed by defendant Lightsey, governing the production of confidential information by the North Carolina Department of Public Safety (“DPS”).
On January 6, 2015, plaintiff filed his particularized complaint, and then filed a motion for the production of documents and a pleading captioned “Brandeis Brief, ” which the court construed as an additional response to its December 16, 2014, order. Defendant Lightsey filed a motion for an extension of time to file an answer to plaintiff's particularized complaint.
On February 13, 2015, the court entered an order stating that plaintiff's amended pleading and “Brandeis Brief” were unclear and again directed plaintiff to file one particularized complaint. The court additionally denied as moot defendant Lightsey's motion for an extension of time to file an answer and denied without prejudice plaintiff's motion for production of documents. On February 23, 2015, plaintiff filed his particularized complaint. Defendant Lightsey again moved for an extension of time to answer plaintiff's second particularized complaint. Plaintiff then filed a motion to compel the appearance of defendants, which the court construed as a motion to expedite. On March 11, 2015, the court entered an order allowing plaintiff to proceed with his action against defendants Lightsey, Mitchell, Lawson, Henderson, and Sierra. The court also granted defendant Lightsey's motion for an extension of time to answer and denied plaintiff's motion to expedite.
On April 12, 2015, the North Carolina Attorney General, acting pursuant to Standing Order 14-SO-02, informed the court that it believed that the party plaintiff identified as “Nurse Sierra” was Heriberto Sierra, and provided an address for service in Greensboro, North Carolina. The United States Marshals Service served Heriberto Sierra at the addressed provided by the attorney general on April 21, 2015. On May 12, 2015, Heriberto Sierra filed a pro se motion to dismiss arguing that he is not the “Nurse Sierra” identified in the complaint, and that he has never worked for the North Carolina Department of Correction. In response, the attorney general informed the court that it had provided an incorrect address for serving defendant Sierra. As a result, on May 15, 2015, the court entered an order quashing the service of Heriberto Sierra, and denying as moot the pending motion to dismiss. Defendant Sierra properly was served on May 6, 2015.
In the interim, plaintiff filed a motion for discovery and a motion to compel. On April 27, 2015, defendant Lightsey filed a motion for a protective order and a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) arguing that plaintiff failed to exhaust his administrative remedies pursuant to 42 U.S.C. 1997e(a) prior to filing this action and that plaintiff failed to state a claim upon which relief may be granted. The motion was fully briefed. On May 7, 2015, plaintiff filed a motion for leave to file ex parte and later filed a motion to delay ruling on defendant Lightsey's motion to dismiss as well as a motion to take the deposition of Nurse Bratcher. Defendant Lightsey filed a motion to strike several of plaintiff's filings.
On May 28, 2015, the court entered an order directing defendant Lightsey to supplement his motion to dismiss to provide evidentiary support, including copies of all grievances that plaintiff filed in relation to this action and a supporting affidavit, for his affirmative defense that plaintiff failed to exhaust his administrative remedies. The court also provided the parties notice of its intent to construe defendant Lightsey's motion to dismiss as a motion for summary judgment and directed the clerk of court to issue a Rule 56 letter. The court, additionally, granted defendant Lightsey's motion for a protective order and denied without prejudice plaintiff's two motions to compel. As for plaintiff's motion for leave to file an ex parte pleading, the court provided plaintiff 14 days to state why his filing should be considered ex parte. The court granted defendant Lightsey's motion to strike in part and denied it in part. The court granted the motion to strike as to plaintiff's first and second responses to defendant Lightsey's answers, but denied the remainder of the motion. Finally, the court denied without prejudice plaintiff's motion to delay ruling on defendant Lightsey's motion to dismiss.
On the same date, plaintiff filed a motion seeking ruling on interrogatories. Then, on June 4, 2015, plaintiff responded to the court's May 28, 2015, order and provided clarification as to his request to file a motion ex parte. On June 17, 2015, defendant Lightsey supplemented his pending motion for summary judgment and submitted the affidavit of Finesse G. Couch.[1] Plaintiff responded to defendant Lightsey's supplemental filing, and defendant Lightsey replied. On July 7, 2015, defendant Sierra filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). The motion was fully briefed. On September 2, 2015, defendant Sierra filed a motion for a protective order, which also was fully briefed.

(DE 8, pp. 1-5).

         On February 8, 2016, the court conducted a review of plaintiff's action pursuant to 28 U.S.C.§ 1915(e)(2)(B)(ii). The court dismissed plaintiff's official capacity claims and dismissed without prejudice plaintiff's retaliation and state law negligence claims. The court also granted defendant Lightsey's motion to dismiss as to plaintiff's request for injunctive relief and to the extent plaintiff failed to exhaust his administrative remedies prior to filing McClary I. Accordingly, the court dismissed without prejudice plaintiff's action designated McClary I, and denied the remainder of Lightsey's motion to dismiss. The court further made the following rulings: denied plaintiff's motion to file ex parte; denied without prejudice plaintiff's motion to take the deposition of Nurse Bratcher; denied as moot plaintiff's motion seeking a ruling on interrogatories; granted defendant Sierra's motion to dismiss as to plaintiff's request for injunctive relief and denied the remainder of the motion; granted defendant Sierra's motion for a protective order; and lifted the stay of discovery. The court thereafter issued a case management order setting deadlines for discovery and dispositive motions. Defendants also filed a consent protective order, which the court granted.

         On February 19, 2016, plaintiff filed a motion for summary judgment, which was fully briefed. On February 29, 2016, plaintiff filed a motion to amend his complaint to supplement his allegations against defendant Lightsey. Defendant Lightsey responded to plaintiff's motion to amend. On May 2, 2016, the court granted plaintiff's motion to amend, but denied his motion for summary judgment. On July 13, 2016, plaintiff filed a motion to compel discovery, and two days later, filed another motion for summary judgment. Plaintiff filed a second motion to compel on July 29, 2016.

         In the interim, defendants Henderson and Lawson filed the instant motion for summary judgment arguing that plaintiff failed to exhaust his administrative remedies prior to filing the instant action. Alternatively, defendants argue that plaintiff is unable to establish a constitutional violation and that they are entitled to the affirmative defense of qualified immunity. In addition to their motion, defendants Henderson and Lawson filed a statement of material facts and appendix, which included DPS policies governing administrative remedy procedures. The appendix also included personal affidavits from defendants Henderson and Lawsons as well as affidavits from Portia Lucas, Dontrey Chambliss (“Chambliss”), Dianna Davis-McNeill (“McNeill”), and Quency Abdullah (“Abdullah”).[2] The motion was fully briefed. As part of their reply, defendants Henderson and Lawson filed personal supplemental affidavits, as well as supplemental affidavits from Lucas and Aldo Llerena (“Llerena”), a Polk correctional officer.

         On August 2, 2016, defendants Lawson and Henderson filed a motion for a protective order, and on the same date, plaintiff filed a motion to continue discovery. On August 8, 2016, defendant Lightsey filed the instant motion for summary judgment arguing that plaintiff is unable to establish a constitutional violation. Lightsey also filed a statement of material facts and an appendix, which included portions of plaintiff's medical records as well as affidavits from defendant Lightsey and Dr. Michael Gordon.[3] The motion was fully briefed. As part of his reply, Lightsey filed a supplemental affidavit. Three days later, defendant Sierra filed the instant motion for summary judgment, asserting the exhaustion defense and arguing that plaintiff is unable to establish a constitutional violation. In support of his motion, Sierra filed a statement of material facts and an appendix, which included his personal affidavit and excerpts of plaintiff's medical records. The motion was fully briefed. Plaintiff subsequently filed motions for leave, motions for leave to file new evidence, motion for perjury charges, and motion for sanctions. Defendants also filed motions to strike during the same time period.

         On November 3, 2016, the court denied plaintiff's motions to compel discovery (without prejudice), defendants' motion for a protective order, plaintiff's motions for leave, plaintiff's motions for leave to file new evidence, plaintiff's motion for perjury charges, and plaintiff's motions for sanctions. The court, however, granted plaintiff's motion to continue the discovery period and directed plaintiff to make his discovery requests directly to defendants. The court also allowed plaintiff additional time to supplement his response to defendants' motions for summary judgment. Finally, the court granted defendants' motions to strike in part and denied them in part. The court struck plaintiff's pleadings at (DE 98) and (DE 100), but denied defendants' motions to strike any other pleadings. The court also directed the clerk of court to reject and return any of plaintiff's future filings not captioned as either a motion or a supplemental response to defendants' respective motions for summary judgment. Plaintiff thereafter filed a supplemental response to defendants' motions for summary judgment. Defendant Lightsey then filed a reply to plaintiff's supplemental response. Defendants Henderson and Lawson filed an objection and reply to plaintiff's supplemental response. On December 19, 2016, plaintiff filed a pleading captioned “Supplemental Response to Defendants Lawson and Henderson Objection for Production of Documents.”

         STATEMENT OF FACTS

         The facts viewed in the light most favorable to plaintiff are as follows. Plaintiff's action relates to medical care he received while he was incarcerated at Polk Correctional Institution (“Polk”) beginning on October 18, 2013. (Lightsey Aff. ¶ 7 and Ex. 2, p. 1). On December 26, 2013, defendant Sierra examined plaintiff in response to plaintiff's complaints of pain in his lower left abdomen which plaintiff attributed to an old hernia. (Sierra Aff. ¶ 7 and Ex. 2). Defendant Sierra gave plaintiff five days worth of acetaminophen for pain and referred plaintiff to defendant Lightsey. (Id.) The next day, defendant Lightsey examined plaintiff and assessed plaintiff with a non-incarcerated (it was able to be easily reduced) inguinal hernia, and ordered that plaintiff take the laxative Colace twice per day for a period of six months in order to keep plaintiff's intestinal contents moving. (Lightsey Aff. ¶ 10 and Ex. 6). Lightsey also submitted an utilization review (“UR”) request for a surgical consultation at Central Prison Hospital for the left inguinal hernia. (Id.) The UR request was approved on January 29, 2014, and an appointment was scheduled for February, 2014. (Id.)

         On January 2, 2014, plaintiff submitted an inmate declared emergency for his hernia. (Id.¶ 12 and Ex. 7). Plaintiff reported to a nurse that his hernia was painful and that he took two tablets of non-aspirin pain reliever on December 26, 2013, but that the medication was not effective. (Id.) The nurse, in turn, referred plaintiff to Lightsey for further evaluation. (Id.) Then, on January 7, 2014, defendant Henderson responded to four sick-call appointment requests in which plaintiff complained, inter alia, of abdominal pain resulting from his hernia. (Id. ¶ 13 and Ex. 8; Henderson Aff. ¶ 10 and Ex. C). The nurse palpated plaintiff's abdomen on the left side and noted that there was no evidence of a knot. (Id.) The nurse assessed plaintiff with hernia pain and noted that a request for pain medication would be made. (Id.) The next day, defendant Lightsey conducted a review of plaintiff's chart, and ordered the following: (1) two 500 mg tablets of Tylenol extended release three times per day for a period of one month; and (2) Zostrix cream (topical analgesic to reduce pain) to the inguinal hernia three times per day for two weeks. (Lightsey Aff. ¶ 14 and Ex. 6).

         On January 9, 2016, plaintiff submitted an inmate declared emergency in which he complained of blood in his urine. (Id. ¶ 15 and Ex. 9). A nurse saw plaintiff and noted that plaintiff had two Styrofoam cups with what appeared to be a liquid substance tinged with color. (Id.) The nurse gave plaintiff a cup for an observatory urine sample (a urinary sample obtained while being observed by the nurse), but plaintiff refused stating that he did not have to urinate. (Id.) The nurse instructed plaintiff to notify her when he had to urinate. (Id.) On January 11, 2014, a nurse responded to a sick-call request submitted by plaintiff in which plaintiff complained of blood in his urine, frequent urination, and urine leakage. (Id. ¶ 16 and Ex. 10). The nurse noted that plaintiff's complaints had been addressed through a prior sick call appointment. (Id.) Plaintiff was administered a month's supply of Tylenol on January 12, 2014, for self-administration. (Sierra Aff. ¶ 13 and Ex. 6).

         On January 22, 2014, defendant Lightsey reviewed plaintiff's chart and ordered electromagnetic radiation (“x-ray”) testing of plaintiff's abdomen to rule out a small bowel obstruction. (Lightsey Aff. ¶ 18 and Ex. 12). The UR request was submitted and approved the next day. (Id.) The x-ray results were negative for any acute process including obstruction or ileus. (Id.) Defendant Sierra then examined plaintiff on January 28, 2014, in response to plaintiff's sick-call requests complaining of hernia pain, painful urination, frequent urination, urine leakage, and blood in his stool. (Id. ¶ 19 and Ex. 13; Sierra Aff. ¶ 10 and Ex. 4). Defendant Sierra informed plaintiff that he would be referred to the camp physician for further evaluation.[4] (Sierra Aff. ¶ 10 and Ex. 4). Defendant Lightsey examined plaintiff the following day. (Lightsey Aff. ¶ 20 and Exs. 6, 14). In the course of the examination, plaintiff reported exquisite soreness around the left inguinal hernia and defendant Lightsey prescribed Levsin (an anti-spasmodic gastorintestinal medication) three times a day for a period of one month. (Id.) Defendant Lightsey, additionally, made the decision to defer treatment of plaintiff's urinary-related complaints pending review of plaintiff's x-ray reports, which were not yet in plaintiff's chart. (Id.)

         On February 12, 2014, Lightsey conducted a review of plaintiff's chart and noted that plaintiff's January 24, 2014, x-ray was negative for a small bowel obstruction and a “barely perceptible” inguinal hernia. (Id. ¶ 22 and Ex. 14). Lightsey also ordered that plaintiff undergo a urinalysis with culture and sensitivity, and a prostate specific antigen (“PSA”) test to determine whether plaintiff had a urinary tract infection or evidence of potential prostate cancer. (Id.) Based upon the results of plaintiff's urine culture, Lightsey ...


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