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Rodriguez-Garcia v. Bauer

United States District Court, W.D. North Carolina, Asheville Division

September 11, 2017



          Frank D. Whitney Chief United States District Judge.

         THIS MATTER is before the Court on initial review of Plaintiff's pro se Complaint under 28 U.S.C. §§ 1915A and 1915(e).[1] (Doc. No. 1.)

         I. BACKGROUND

         Plaintiff is a prisoner of the State of North Carolina. He names Michael Bauer, identified as a doctor at Valdese Hospital “who is responsible for the health care assistance of North Carolina Correctional institutions” (Compl. ¶ 4, Doc. No. 1), and George T. Solomon, identified as operational director of the North Carolina Department of Public Safety (Compl. ¶ 5), as Defendants.

         According to the Complaint, in August or September 2014, Plaintiff discovered a lump in the area of his left testicle. A doctor at Avery-Mitchell Correctional Institution, where Plaintiff was housed, ordered an ultrasound of that area. Upon review of the ultrasound results, Plaintiff was referred to Defendant Bauer for treatment. Bauer informed Plaintiff that the lump was a tumor and that the entire testicle had to be removed as soon as possible because the tumor could be cancerous. Bauer did not order a pre-surgery biopsy of the tumor to determine if it was cancerous or offer any treatment alternatives to removing the tumor and the entire testicle. (Compl. 3-4.)

         Bauer removed the testicle on November 24, 2014. It appears from the Complaint that the tumor was cancerous, and that Plaintiff has been undergoing treatment for cancer since his surgery. (Letter to Def. Solomon 22, Doc. No. 1.)

         Since his surgery, Plaintiff has experienced pain and numbness in the surgical area, as well as unspecified physical limitations. Plaintiff is sent to the medical facility at Central Prison in Raleigh, North Carolina, for regular check-ups and/or treatment, and despite his complaints about pain and numbness, he has been told by doctors there that nothing can be done about those issues. (Compl. 5.)

         On May 10, 2016, while incarcerated at Sampson Correctional Institution, Plaintiff submitted a grievance seeking help for what he perceived as medical indifference on the part of doctors at Avery-Mitchell and Central Prison to his post-surgery problems. (May 2016 Grievance 12-14, Doc. No. 1.) In response, a facility doctor met with Plaintiff to discuss Plaintiff's medical concerns. (May 23, 2016 Step Two Resp. 16, Doc. No. 1.) The doctor informed him that “everything was normal” without performing or recommending any lab tests, x-rays, or ultrasounds to determine the source of Plaintiff's pain and numbness or to determine if anything was wrong internally. (Compl. 7.)

         On November 9, 2016, now incarcerated at Scotland Correctional Institution, Plaintiff filed another grievance complaining of institutional indifference to his post-surgery issues and asking to see a specialist outside the prison system. (Nov. 2016 Grievance 17-19, Doc. No. 1.) After conducting an investigation, the grievance examiner dismissed the grievance, finding that Plaintiff had not been improperly treated and had received the appropriate level of medical evaluation and attention consistent with policy and procedures. (Dec. 30, 2016 Step Three Resp. 21, Doc. No. 1.)

         In March 2017, Plaintiff submitted a sick-call and was examined by a Scotland Correctional Institution doctor, FNU Jones, who found testicular swelling. She recommended that he be sent to Central Prison for examination and lab work. (Compl. ¶ 12.)

         On March 31, 2017, Plaintiff sent a letter to Defendant Solomon, complaining that all of the doctors responsible for treating him ignore his complaints about pain and numbness and asking to be sent to a doctor outside the prison system. (Letter to Def. Solomon 22.) Plaintiff signed the instant Complaint on April 19, 2017. (Compl. 11.) As of that date, he had not received a response from Defendant Solomon. (Compl. 6.)

         Plaintiff contends that Defendants, in both their individual and official capacities, violated his right to be free from cruel and unusual punishment under the Eighth Amendment through their deliberate indifference to his medical needs and their “racial discrimination.” (Compl. ¶ 17.) He seeks a declaration that the acts and omissions described in the Complaint violated his rights under the federal Constitution, as well as compensatory and punitive damages. (Compl. ¶¶ 19-21.)


         Because Plaintiff is proceeding in forma pauperis, the Court must review the Complaint to determine whether it is subject to dismissal on the grounds that it is “frivolous, ” “malicious, ” “fails to state a claim on which relief may be granted, ” or “seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2). In its frivolity review, the Court must determine whether the Complaint raises an “indisputably meritless legal theory, ” Denton v. Hernandez, 504 U.S. 25, 32 (1992), or is ...

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