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Ballard v. Andrews

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

August 29, 2017




         The matter now comes before the court on defendants' motion for summary judgment (DE 73) pursuant to Federal Rule of Civil Procedure 56. The issues raised have been fully briefed and are ripe for adjudication. For the following reasons, the court grants defendants' motion.


         On April 9, 2015, plaintiff, a state inmate, filed this civil rights action pursuant to 42 U.S.C. § 1983 alleging defendants were deliberately indifferent to his serious medical needs and retaliated against him for filing this lawsuit. On July 15, 2015, the court granted plaintiff's motion to amend, denied his request for a preliminary injunction, and ordered plaintiff to particularize his claims. Plaintiff responded as directed (DE 14), and, on December 3, 2015, the court conducted a frivolity review, dismissing plaintiff's retaliation claim without prejudice but continuing management of plaintiff's deliberate indifference claim (DE 16).

         Although plaintiff's deliberate indifference claim survived frivolity review, he did not provide complete names for each defendant. The North Carolina Attorney General (“NCAG”) then made a good faith effort to identify the unidentified defendants. (See DE 40 at 1-2). On January 29, 2016, the NCAG filed under seal a response which, inter alia, identified formerly-named defendants “CO Garret” and “CO A. Smith” as Robert Garrett and Isaac Smith (DE 19). The court then entered a text order amending the docket to reflect the inclusion of Robert Garrett (“Garrett”) and Isaac Smith (“Smith”) (DE 21, 22).

         On April 29, 2017, plaintiff notified that court that “Officer Garret is not a Robert Garrett . . . [and] Isaac Smith . . . is not the named Correctional Officer A. Smith.” (Mot. (DE 39) at 1). As a result, plaintiff filed numerous motions with the court requesting discovery enabling him to identify these defendants. (See DE 39, 44). Defendants responded, indicating that they had already provided plaintiff with discovery to assist him in identifying these individuals (DE 63). Defense counsel also informed that court that she had independently reviewed plaintiff's medical records and was unable to identify either Garrett or Smith (DE 45). The court concluded that plaintiff, defendants, and the NCAG had all made good faith efforts to identify Garrett and Smith and were unable to do so. (See DE 88 at 1-3). Thus, the court found that Garrett and Smith were John Doe defendants, and dismissed them from this action without prejudice. Id. The court also allowed defendants' request for the entry of a protective order pending the resolution of defendants' dispositive motions. Id. at 4-5.

         Defendants filed the instant motion for summary judgment on October 24, 2016 (DE 73). In support thereof, defendants attached the following: (1) affidavit of Finesse Couch (non-defendant), executive director of North Carolina inmate grievance resolution board with relevant grievances; (2) affidavit of Dennis Daniels (non-defendant), Facility Administrator at Maury Correctional Institution (“Maury”) with relevant disciplinary records and operating procedures; (3) affidavit of defendant Lora Andrews (“Andrews”), sergeant; (4) affidavit of defendant Aundra Dean (“Dean”), correctional officer; (5) affidavit of defendant Andy Wood (“Wood”), correctional officer; (6) affidavit of Marvin Casino (non-defendant), nurse supervisor at Maury, along with disciplinary history, medical policies, and medication and medical records; (7) affidavit of defendant Jennifer Blackmon (“Blackmon”), with exhibits; (8) affidavit of defendant Maria Magana, nurse; (9) affidavit of defendant Sandra Langston (“Langston”), correctional healthcare nurse assistant, along with relevant medication records. (See DE 76).

         Plaintiff requested an extension of time to respond, (DE 78), which was allowed (DE 79). On January 5, 2017, plaintiff filed a second request for an extension of time (DE 83), which was also granted (DE 85). However, plaintiff was notified that any further extensions of time would be disfavored. Plaintiff filed a third motion for an extension of time on January 17, 2017 (DE 86). In support of this motion, plaintiff alleged that he needed an extension of time because his health was severely deteriorating, and as a result he had been transferred to Central Prison Hospital. The court found this constituted exceptional circumstances and granted plaintiff a third extension of time (DE 88). However, plaintiff was reminded that any further extensions of time would be strongly disfavored. Furthermore, defendants were ordered to respond if plaintiff filed any further extensions of time. Defendants were instructed that any response should include an update on plaintiff's location and health status.

         Plaintiff filed a fourth motion for an extension of time to respond to defendants' motion for summary judgment on February 27, 2017, alleging exceptional circumstances (DE 90). Defendants responded, as instructed (DE 91), attaching the affidavit of Joy Jones, a registered nurse employed by the North Carolina Department of Public Safety (“DPS”). (Jones Aff. (DE 91-1)). Jones' affidavit indicated that exceptional circumstances did not exist, and plaintiff's request for an extension of time was denied (DE 94). Moreover, plaintiff was admonished that if any of his future filings included intentionally misleading statements, he could be sanctioned with the dismissal of his claims.

         Plaintiff then filed a timely response on April 26, 2017. In opposition to summary judgment, attached to his response, plaintiff filed copies of correspondence sent by plaintiff to certain defendants and other prison officials; and a medication administration record. (See DE 95). Defendants replied on May 2, 2017.


         The facts viewed in light most favorable to plaintiff may be summarized as follows. Plaintiff's claims are centered on plaintiff's assertion that defendants delayed his receipt of prescribed narcotic pain medication. (See, e.g., Am. Compl. (DE 13), p. 2). Specifically, plaintiff alleges he was not provided his pain medication in a timely manner on the following dates: February 27, 2015, March 10, 2015, March 17-18, 2015, March 23-24, 2015, and April 1 or 2, 2015.

         Plaintiff currently is incarcerated based on his conviction for attempted trafficking of opium and heroin. (See Daniels Aff. (DE 76-2) ¶ 11). He has received numerous disciplinary infractions, including infractions for threatening prison staff, disobeying orders, and faking illness. (Id. ¶ 12). Likewise, plaintiff has a history of demanding medication before his prescribed dosage was due. (Id. ¶ 13). Plaintiff also has a history of becoming belligerent when his requests for unauthorized medication were denied. (Id. ¶¶ 14-15).

         At the times relevant to his complaint, plaintiff was housed at Maury in the “Blue Unit, ” which houses inmates with chronic medical problems. (Id. ¶¶ 17-18). Plaintiff has been diagnosed with degenerative disc disease and has a prescription for Percocet, which is a narcotic drug. (Am. Compl. (DE 13) 2; Casino Aff. (DE 76-6) ¶ 31). Plaintiff's prescription initially called for him to take Percocet every four hours. (Casino Aff. (DE 76-6) ¶ 32). With regard to the time period between February 27, 2015 and March 24, 2015, plaintiff's medical records indicate that he received his Percocet six times per day at intervals of approximately four hours. (Id. ¶¶ 38-45). On March 31, 2015, plaintiff was transported to the emergency room based on complaints of chest pain. (Id. ¶¶ 47-48). While he was at the hospital, plaintiff's Percocet prescription was altered. (Id. ¶ 52). Plaintiff returned to Maury at 9:32 p.m. on April 1, 2015, and his Percocet was administered at 10:48 p.m. (Id. ΒΆ 51). On April 2, 2015, in accordance with his ...

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