Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Lilly v. Carter

United States District Court, M.D. North Carolina

July 14, 2017

CHESTER LILLY, Plaintiff,
v.
DR. CARTER, et al., Defendants.

          MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          Joe L. Webster United States Magistrate Judge

         This matter is before the Court upon several motions: Defendant Susan Glover's motion to dismiss (Docket Entry 28), Plaintiff Chester Lilly's motion to amend complaint (Docket Entry 51), Defendant Glover's motion to strike, or alternatively, dismiss Plaintiffs supplement to his complaint (Docket Entry 49), Defendant Glover's second motion to strike (Docket Entry 53), Plaintiffs motion for leave to file an amended complaint (Docket Entry 60), and Defendant Glover's renewed motion to strike (Docket Entry 62). These matters are ripe for disposition. For the reasons that follow, the Court recommends that Plaintiffs motions to amend (Docket Entries 51, 60) be granted in part and denied in part, Defendant Glover's motions to strike (Docket Entries 49, 53, 62) be granted, and Defendant Glover's motion to dismiss (Docket Entry 28) be granted.

         I. PROCEDURAL BACKGROUND

         Plaintiff filed this § 1983 action against Defendants Dr. Carter and Glover on May 3, 2016, for deliberate indifference to a serious medical need. (See generally Complaint, Docket Entry 2.) Between May 4, 2016, to September 16, 2016, Plaintiff filed five supplements to his Complaint. (Docket Entries 3, 5, 23, 25, 26.) Defendant Glover filed an answer (Docket Entry 27) and a motion to dismiss on October 11, 2016, pursuant to Federal Rule of Civil Procedure 12(b)(6), claiming that Plaintiff has failed to state a claim against her. (Docket Entry 28.) On November 7, 2016, Plaintiff filed a response in opposition to the motion to dismiss, asserting Defendant Glover was deliberately indifferent by ignoring Plaintiffs medical needs.[1](Docket Entry 34.) Defendant Glover thereafter filed a reply. (Docket Entry 36.)

         This case was scheduled for a hearing on all pretrial matters. (See Text Order dated 11/22/2016.) Plaintiff filed several additional motions prior to the date of the hearing. (See Docket Entries 38, 39, 40, 43, 44, 45, 46.) At the hearing held on January 24, 2017, the parties discussed several of the motions pending before the Court. Plaintiff informed the Court of his attempts to amend his Complaint. (See Text Order dated 1/24/17.) Plaintiff indicated that he wanted to add "D. Loflin" as a defendant to the pending suit. Defense counsel stated that if the Court were to allow Plaintiff an opportunity to amend his Complaint, it would not be opposed so long as the new allegations be raised as to persons other than Defendant Glover. Defense counsel further asked the Court that no discovery be permitted in this matter until there was a ruling on Defendant Glover's motion to dismiss. Plaintiff appeared to understand the positon of Defendant Glover's counsel, and the Court indicated that it would allow Plaintiff to supplement his Complaint to add the newly named defendant and assert any allegations against that individual. (Id.)

         After the hearing, Plaintiff filed a supplement to his complaint on January 27, 2017. (Docket Entry 48.) Plaintiff also filed a motion to amend his complaint. (Docket Entry 51.) Thereafter, Defendant Glover filed a motion to strike the motion to supplement. (Docket Entry 49.) Additionally, Defendant Glover filed another motion to strike or dismiss allegations against Defendant Glover and response to Plaintiffs motion to amend complaint, which was also accompanied by a brief. (Docket Entries 53, 54.) Plaintiff then filed another motion for leave to file amended complaint (Docket Entry 60) and Defendant Glover filed a third motion to strike (Docket Entry 62).

         II. FACTUAL BACKGROUND

         Plaintiff, proceeding pro se, filed this § 1983 action naming Defendant Glover and several others in this matter. [Seegenerally Compl., Docket Entry 2.) Plaintiff is a State prisoner in the custody of the North Carolina Department of Public Safety, Division of Adult Corrections ("NCDPS"), and is currently housed at Alexander Correctional Institute in Taylorsville, North Carolina. Plaintiff alleges that while at Piedmont Correctional Institution ("Piedmont") in Salisbury, North Carolina, Defendant Glover, a nurse, was deliberately indifferent to Plaintiffs medical needs, which resulted in injury to Plaintiff. (Id.) More specifically, Plaintiff claims that Defendant Glover advised Plaintiff to make two sick calls to acquire his pain medicine, and Plaintiff made 16 sick calls and never acquired his medicine. (Id. at 3.) Thus, Plaintiff claimed Defendant Glover lied because she gave Plaintiff ill-advised information. (Id.) Ultimately, Defendant Carter did not prescribe Plaintiff his requested pain medication. (Id.) Further, Plaintiffs complaint alleges several further inactions of other defendants as it relates to Plaintiffs medical needs. (See id; see also Docket Entries 3, 5, 23, 25, 26.) Plaintiff seeks damages in the amount of $400, 000 for pain and suffering, and mental anguish. (Compl. at 6.)

         III. DISCUSSION

         Standard of Review

         A. Rule 15 Amendments

         Rule 15(a) of the Federal Rules of Civil Procedure provides that "a party may amend its pleading only with the opposing party's written consent or the court's leave." Fed.R.Civ.P. 15(a)(2). It further states that "[t]he court should freely give leave when justice so requires." Id. Granting a motion to amend a complaint is within the discretion of the Court, "but outright refusal to grant the leave without any justifying reason appearing for the denial is not an . exercise of discretion." Voman v. Davis, 371 U.S. 178, 182 (1962). The Fourth Circuit has stated that "[a] district court may deny a motion to amend when the amendment would be prejudicial to the opposing party, the moving party has acted in bad faith, or the amendment would be futile." Equal Rights Ctr. v. Niks Bolton Assocs., 602 F.3d 597, 603 (4th Cir. 2010). An amended complaint is futile if it cannot withstand a motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6); thus, the Court may deny the motion. Perkins v. United States, 55 F.3d 910, 917 (4th Cir. 1995) (addition of negligence claim futile because case would not survive motion to dismiss).

         B. Rule 12(f) Motion to Strike

         Pursuant to Rule 12(f) of the Federal Rules of Civil Procedure, a court may "strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter" on its own or on motion of a party. Fed.R.Civ.P. 12(f); Waste Mgmt. Holding, Inc. v. Gilmore,252 F.3d 316, 347 (4th Cir. 2001). In reviewing a motion to strike pursuant to Rule 12(f), the Court reviews "the pleading under attack in a light most favorable to the pleader." Guessford v. Pa. Nat'l Mut. Cas. Ins. Co.,918 F.Supp.2d 453, 467 (M.D. N.C. 2013). "The Fourth Circuit has recognized that Rule 12(f) motions ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.