United States District Court, W.D. North Carolina, Asheville Division
J. Conrad, Jr. United States District Judge
MATTER is before the Court on a periodic status
review in light of the Fourth Circuit Court of Appeals'
order vacating and remanding this action following this
Court's grant of summary judgment to Defendants, (Doc.
Nos. 147, 151), as well as Plaintiff's pending Motion for
Reconsideration, (Doc. No. 149), and Motions to Appoint
Counsel, (Doc. Nos. 150, 152).
Plaintiff Marion Lamont Sherrod filed the Complaint on
February 20, 2012, alleging that various Defendants violated
his rights. In it, he raised five claims for relief related
to deliberate indifference to his medical needs, intentional
racial discrimination, and violation of his alleged right to
send and receive mail. (Doc. No. 1). Following initial review
by the Court, the United States Marshals Service (USMS) was
ordered to serve Defendants Larry Bass, FNU Edwards, Sid
Harkleroad, Margaret Johnson, Patricia McEntire, John Morgan,
and Stephen Shook. (Doc. No. 6).
Morgan filed a motion to dismiss on June 21, 2012, arguing
that the Court lacks jurisdiction due to insufficient service
of process; that Plaintiff failed to state a claim for
deliberate indifference to a serious medical need, violating
the Americans with Disabilities Act (“ADA, ”), or
retaliation; and other grounds including res
judicata and qualified immunity. (Doc. No. 24).
Plaintiff filed a response opposing dismissal. (Doc. No. 30).
With regards to the service of process issue, Plaintiff
argued that he had no control over service of process because
he is incarcerated, he paid for service by mail, the
Government breached its contract by failing to serve
Defendant Morgan, and Defendant Morgan tampered with United
States certified mail. The Court granted Defendant
Morgan's motion to dismiss on February 20, 2013, for
failure to state a claim, and did not reach the other
arguments in favor of dismissal. (Doc. No. 58). It
specifically found that Plaintiff failed to state an Eighth
Amendment claim against him for deliberate indifference to a
serious medical need. The allegations tended to show that
Defendant Morgan knew of Plaintiff's seizure disorder and
provided medical treatment. However, disagreement with that
treatment did not state a § 1983 claim and no
exceptional circumstances were present. Further, Plaintiff
admitted he was receiving treatment for the seizure disorder.
The Complaint merely stated a claim of medical negligence or
malpractice not a§ 1983 deliberate indifference claim.
August 13, 2014, Defendant Larry Bass filed a motion to
dismiss or, alternatively, for judgment on the pleadings.
(Doc. No. 98). He argued that the Eighth Amendment claim
should be dismissed because the Court found in its February
20, 2013, Order that Plaintiff's medical care was not
deliberately indifferent, and that he is entitled to
qualified immunity on the allegation that Bass retaliated
against him by making a false statement that led to his
placement in a higher security classification. On March 30,
2015, the Court granted Defendant Bass' motion to
dismiss, finding that the allegations were too lacking in
factual support to state a claim for inadequate medical
treatment Defendant Bass may have provided or any false
statement he may have made, and further, custodial
classification is not actionable under § 1983. (Doc. No.
October 14, 2015, the remaining Defendants - Harkleroad,
Edwards, Shook, McEntire, and Johnson - filed a motion for
summary judgment arguing that: (1) Plaintiff failed to
exhaust administrative remedies; (2) Plaintiff failed to
state a claim with regards to disciplinary infractions and
classification amounting to a due process violation; (3)
Plaintiff failed to state a claim with regards to
retaliation; (4) Plaintiff failed to state a claim with
regards to his legal mail; (5) Plaintiff failed to state a
claim regarding any risk of harm amounting to deliberate
indifference; (6) Sovereign and Eleventh Amendment immunity
bars Plaintiff from seeking damages from Defendants in their
official capacities; (7) qualified immunity shields
Defendants from Plaintiff's claims for monetary damages;
and (8) claims that were previously litigated in the North
Carolina Industrial Commission are barred by res
judicata. (Doc. Nos. 121, 122).
filed a motion for summary judgment, (Doc. No. 123), as well
as motions for leave to file an amended complaint, (Doc. No.
124), and for judgment as a matter of law, (Doc. No. 130).
Order entered March 30, 2016, the Court granted
Defendants' motion for summary judgment and denied
Plaintiff's motions for summary judgment, leave to amend,
and judgment as a matter of law. (Doc. No. 132). With regards
to Defendants' motion for summary judgment, the Court
found that Plaintiff's allegations were speculative and
failed to state a claim for deliberate indifference under the
Eighth Amendment. It reasoned that because Plaintiff
“simply assumes in his complaint - without sufficient
factual support - that all of the defendants had intimate
knowledge about his seizure disorder, and after being armed
with this knowledge the defendants (1) deliberately tried to
cause his injury by placing him in a top tier cell, (2)
deliberately endangered him as he was conducted down the
steps after the fall, and they deliberately failed to provide
proper medical treatment.” (Doc. No. 132 at 8). The
Court concluded that Plaintiff alleged, at most, that he was
dissatisfied with the scope and course of treatment he
received, which is not actionable under § 1983 as a
claim for deliberate indifference to a serious medical need.
The Court further found that Plaintiff failed to present
sufficient allegations to sustain an action regarding his
reclassification because prison officials are given broad
discretion when classifying conditions of confinement. The
court also found that his allegations with regards to his
legal mail are too vague and conclusory to state a claim.
appealed the Court's judgment in favor of Defendants and
the Fourth Circuit reversed. Sherrod v. Harkleroad,
674 Fed.Appx. 265 (4th Cir. 2017). It identified
as Plaintiff's “primary claim” the allegation
that, “despite notice to Defendants that he suffered
from seizures, he was housed in an upstairs cell in a top
bunk and, as a result, he fell, seriously injuring himself;
he alleged this was evidence of an Eighth Amendment violation
and deliberate indifference to his serious medical
needs.” (Id. at 266). It disagreed with the
Court's conclusion that the complaint failed because
Plaintiff “simply assumed in his complaint, without
sufficient factual support, that all of the Defendants had
intimate knowledge about his seizure disorder.”
(Id.). The Fourth Circuit explained:
In his properly executed declaration, Sherrod alleged that
medical provider John Morgan and manager Patricia McEntire,
both named Defendants, had knowledge of his seizure disorder
but failed to accommodate his disability, leading to his
serious injuries due to a fall. We make no finding as to
whether Sherrod ultimately may prove an Eighth Amendment
violation against the Defendants, see Estelle v.
Gamble, 429 U.S. 97, 105-106 (1976); Iko v.
Shreve, 535 F.3d 225, 238-39 (4th Cir. 2008), but find
that he alleged enough to survive the Defendants' motion
for judgment on the pleadings .
(Id. at 266-67).
Fourth Circuit accordingly vacated the judgment in
Defendants' favor and remanded for proceedings consistent
with its opinion. (Id.).