United States District Court, E.D. North Carolina, Western Division
ROBERT S. BALLARD, Plaintiff,
DENNIS DANIELS, et al., Defendants.
TERRENCE W. BOYLE United States District Judge.
matter is before the court on the Order and Memorandum and
Recommendation ("Order and M&R") of United
States Magistrate Judge Robert T. Numbers, II, pursuant to 28
U.S.C. § 636(b)(1)(C) and Fed.R.Civ.P. 72(b) [D.E. 16].
The court ADOPTS the Order and M&R. Additionally, the
court allows Ballard's motion to amend his Complaint to
add parties and claims to the lawsuit in the manner set out
January 19, 2016, plaintiff Robert S. Ballard
("plaintiff or "Ballard") filed a Complaint
pursuant to 42 U.S.C. § 1983 seeking monetary and
punitive damages, alleging that various members of the staff
of the Maury Correctional Institution violated his rights
under the Eighth Amendment to the United States Constitution
through their deliberate indifference to his need for medical
care and by failing to provide adequate security in his
housing unit [D.E. 1]. Also before the court is Ballard's
Motion for a Preliminary Injunction [D.E. 8]. Ballard made
the following claims: (1) Dr. Owens was inattentive to his
need for medical treatment for his back, refused to follow
the post-operative recommendation of medical specialist Dr.
Price, refused to provide him the medication prescribed by
Dr. Price, refused to change his medications, and refused to
allow him to keep the controls for his medical device; (2)
unspecified members of the prison medical staff failed to
regularly administer his pain medication; (3) Nurse Blackmon
concealed his medical records that authorized his Myelogram
and air mattress; (4) Nurse Underwood was deliberately
indifferent by refusing to apply a skin-preparation when
dressing his bed sores; (5) prison officials have failed to
protect him from STG (Security Threat Group) inmates who are
placed in the Chronic Care Unit with sick inmates; (6) he has
not received a PSA test to detect cancer; (7) he must wait to
be seen on sick call and has had to wait over a year to see a
dentist; and (8) the Chronic Care Unit does not have a nurse
in the unit "24/7." See Compl. [D.E. 1], Ballard
also requests injunctive relief to require the defendants to
administer his medications as prescribed. See Mem. Supp. Mot.
Prelim. Inj. [D.E. 8-1].
January 13, 2017, Judge Numbers issued his Order and M&R
and allowed two of Ballard's claims to proceed: his
deliberate indifference claim against Nurse Blackmon for
allegedly concealing his medical records and his deliberate
indifference claim against Nurse Underwood related to the
failure to use skin-prep in dressing his bed sores. As to
Ballard's claim about the failure to provide adequate
safety in the chronic care unit, Judge Numbers directed
Ballard to submit an amendment to his Complaint within 21
days of the Order and M&R identifying the individuals he
believes are responsible for the lack of security within the
chronic care unit. Judge Numbers recommended that the court
dismiss the remaining claims and deny Ballard's Motion
for a Preliminary injunction.
Ballard's Amended Complaint was due on February 3, 2017
and his objections were due on January 30, 2017. See Order
and M&R [D.E. 16]. On January 31, 2017, one day after his
objections were due, Ballard mailed, for filing, a request
for an extension of time "to respond to the Order and
M&R, " see [D.E.17, 17-1]. The Clerk granted Ballard
an extension to March 3, 2017, to respond [D.E.
18]. On February 13, 2017, 10 days after his
deadline to file an Amended Complaint, Ballard filed his
Amended Complaint [D.E. 19] accompanied by 17 pages of
exhibits [D.E. 19-1]. In the Amended Complaint, Ballard makes
substantial arguments relating to his. claims, which the
court construes as his objections to the Order and M&R.
Ballard has failed to file any further objections to the
Order and M&R by the 3 March 2017 deadline. Although
Ballard failed to file his Amended Complaint by February 3,
2017, the court considers the Amended Complaint as timely. As
shown below, the court adopts the Order and M&R.
Order and M&R, Judge Numbers summarized the factual
allegations as follows:
Ballard's Back Problems
suffers from severe and chronic back pain. Compl. at 8. In
April 2014, Ballard saw Dr. Price, a neurologist, for
treatment. Id. at 7. Dr. Price ordered a CT
Myelogram and prescribed an air mattress with an air
circulator. Id. at 7, 10. Ballard was to return to
see Dr. Price in a year to undergo the procedure.
Id. at 7. The delay was necessary because Ballard
was taking blood thinners. Id. at 7-8. However,
after a year passed, no one at the prison knew about
Ballard's need for the Myelogram or the air mattress.
Id. at 8. Nurse Blackmon told Ballard that there was
nothing in his medical file about the Myelogram or the air
mattress. Id. Ballard asked Blackmon several times
to call Dr. Wilson at Central Prison Hospital. Id.
Blackmon repeatedly told Ballard that she spoke with Dr.
Wilson, but Dr. Wilson knew nothing about an appointment to
see a specialist. Id. at 8. Ballard obtained a copy
of his medical records and found the relevant orders.
Id. Dr. Owens, a physician at Maury was then
"brought up to speed about ... the Myelogram [and the]
air mattress." Id. Dr. Owens scheduled Ballard
for the Myelogram and ordered him an air mattress and pain
medications. Ballard asserts that Defendant Blackmon
"knew all along, " about his need for the Myelogram
and the air mattress "but withheld this
eventually went to UNC Hospital to undergo the Myelogram. But
due to pain he suffered during the procedure, the medical
staff was unable to perform the test. Id. at 8-9.
Later, he went to Duke Hospital where, with the assistance of
anesthesia, the medical staff was able to successfully
perform the Myelogram. Id. at 9. When he awoke from
the procedure, Ballard was in a great deal of pain.
Id. He requested and received pain medication from
hospital staff. Id.
the procedure, a nurse told Ballard that she sent
instructions to the prison physician to make pain medication
available to him when he returned to Maury. Id. The
nurse also said Ballard should be kept in the infirmary and
closely watched for a few days. Id.
his return to prison, the staff placed Ballard in his housing
unit and told him that his medications would be brought to
him. Id. But the medications never arrived, and
inmates had to help Ballard to the medication line for him to
receive his pain medication. Id. When he was finally
able to obtain medication, he received the same pain
medications he had been taking for several years.
Id. Ballard submitted numerous sick calls in an
unsuccessful effort to have Dr. Owens change his pain
medications. Id. at 9-10.
October 20, 2015, Dr. Price examined Ballard and ordered him
a muscle relaxer and an air mattress. Id. at 10. Dr.
Price also recommended that Ballard have a spinal cord
stimulator placed in his back. Id. However, the
device required charging once weekly, and Dr. Owens refused
to allow Ballard to keep control of the charger or the
remote. Id. Rather, Dr. Owens directed that the
remote be kept at the nurses' station, and Ballard would
be required to inform the nurse each time it needed to be
adjusted. Id. Ballard informed Dr. Owens that he did
not want the spinal cord stimulator under those conditions.
Id. In lieu of the spinal cord stimulator, Dr. Owens
increased Ballard pain medications. Id. Ballard was
given an air mattress from Wal-Mart that malfunctioned within
the first month. Id. at 11.
Ballard's Treatment for Bedsores
who uses a wheelchair, also describes sores on his arms and
buttocks, diagnosed as bed sores, which "bust[ed]
open" and bled. Id. at 18, 11. After several
e-mails from the nurses, Dr. Owens had Ballard's arms and
buttocks bandaged and then placed him in the infirmary to
observe him. Id. at 11. Dr. Owens ordered that the
dressings be changed daily. Id. at 11-12.
the nurses failed to apply a skin prep which protects the
skin from the glue and tape in the dressings. Id. at
12-13. As a result, removal of the dressings was painful and
pulled off layers of Ballard's skin. Id. at 12.
Ballard screamed in pain when the dressings were removed.
Id. This pattern continued for four days until
Ballard was called to main medical where he saw Dr. Owens,
who apparently corrected the problem. Id. at 12-13.