United States District Court, M.D. North Carolina
MEMORANDUM OPINION AND RECOMMENDATION OF UNITED
STATES MAGISTRATE JUDGE
Webster United States Magistrate Judge
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.
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.(Docket Entry 34.) Defendant Glover
thereafter filed a reply. (Docket Entry 36.)
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.
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
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.
Rule 15 Amendments
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
Rule 12(f) Motion to Strike
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)