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Ballard v. Daniels

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

March 9, 2017

DENNIS DANIELS, et al., Defendants.


          TERRENCE W. BOYLE United States District Judge.

         This 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 below.


         On 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].

         On 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.

         Thus, 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.

         In the Order and M&R, Judge Numbers summarized the factual allegations as follows:

         A. Ballard's Back Problems

         Ballard 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 information." Id

         Ballard 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.

         After 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.

         Upon 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.

         On 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.

         B. Ballard's Treatment for Bedsores

         Ballard, 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.

         However, 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.

         C. ...

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