United States District Court, W.D. North Carolina, Statesville Division
ERIC L. GREEN, Plaintiff,
ERIC DYE, et al., Defendants.
D. WHITNEY CHIEF UNITED STATES DISTRICT JUDGE.
MATTER is before the Court on initial review of
Plaintiff's Complaint pursuant to 28 U.S.C. §
1915(e) and § 1915A, (Doc. No. 1), on Plaintiff's
Motion to Appoint Counsel, (Doc. No. 2), and on
Plaintiff's Motion for Leave to File Amended Complaint,
(Doc. No. 9). On July 10, 2017, the Court entered an order
waiving the initial filing fee and directing monthly payments
to be made from Plaintiff's prison account. (Doc. No. 8).
Thus, Plaintiff is proceeding in forma pauperis.
Plaintiff Eric Green is a North Carolina prisoner
incarcerated at Alexander Correctional Institution in
Taylorsville, North Carolina. Plaintiff filed this action on
June 15, 2017, pursuant to 42 U.S.C. § 1983, naming
thirteen Defendants who all are alleged to have been employed
at Alexander at all relevant times. Plaintiff purports to
bring an Eighth Amendment claim against Defendants for
deliberate indifference to serious medical needs based on
Defendants' refusal to provide him with medical care for
his serious medical needs related to his dental problems,
including denying him a soft food diet that he requires
because he has had all of his teeth pulled. Plaintiff seeks
damages and injunctive and declaratory relief.
STANDARD OF REVIEW
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 or
malicious [or] fails to state a claim on which relief may be
granted.” 28 U.S.C. § 1915(e)(2). Furthermore,
§ 1915A requires an initial review of a “complaint
in a civil action in which a prisoner seeks redress from a
governmental entity or officer or employee of a governmental
entity, ” and the court must identify cognizable claims
or dismiss the complaint, or any portion of the complaint, if
the complaint is frivolous, malicious, or fails to state a
claim upon which relief may be granted; or seeks monetary
relief from a defendant who is immune from such relief. In
its frivolity review, this Court must determine whether the
Complaint raises an indisputably meritless legal theory or is
founded upon clearly baseless factual contentions, such as
fantastic or delusional scenarios. Neitzke v.
Williams, 490 U.S. 319, 327-28 (1989).
under 42 U.S.C. § 1983 based on an alleged lack of or
inappropriate medical treatment fall within the Eighth
Amendment's prohibition against cruel and unusual
punishment. Estelle v. Gamble, 429 U.S. 97, 104
(1976). To state a claim under the Eighth Amendment, a
plaintiff must show a “deliberate indifference to
serious medical needs” of the inmate. Id.
“Deliberate indifference requires a showing that the
defendants actually knew of and disregarded a substantial
risk of serious injury to the detainee or that they actually
knew of and ignored a detainee's serious need for medical
care.” Young v. City of Mt. Ranier, 238 F.3d
567, 575-76 (4th Cir. 2001) (citations omitted). “To
establish that a health care provider's actions
constitute deliberate indifference to a serious medical need,
the treatment must be so grossly incompetent, inadequate, or
excessive as to shock the conscience or to be intolerable to
fundamental fairness.” Miltier v. Beorn, 896
F.2d 848, 851 (4th Cir. 1990).
that might be sufficient to support negligence and medical
malpractice claims do not, without more, rise to the level of
a cognizable § 1983 claim. Estelle, 429 U.S. at
106; Grayson v. Peed, 195 F.3d 692, 695 (4th Cir.
1999) (“Deliberate indifference is a very high
standard-a showing of mere negligence will not meet
it.”). To be found liable under the Eighth Amendment, a
prison official must know of and consciously or intentionally
disregard “an excessive risk to inmate health or
safety.” Farmer v. Brennan, 511 U.S. 825, 837
(1994); Johnson v. Quinones, 145 F.3d 164, 167 (4th
Cir. 1998). “[E]ven if a prison doctor is mistaken or
negligent in his diagnosis or treatment, no constitutional
issue is raised absent evidence of abuse, intentional
mistreatment, or denial of medical attention.”
Stokes v. Hurdle, 393 F.Supp. 757, 762 (D. Md.
1975), aff'd, 535 F.2d 1250 (4th Cir. 1976). The
constitutional right is to medical care. No right exists to
the type or scope of care desired by the individual prisoner.
Id. at 763. Therefore, a disagreement “between
an inmate and a physician over the inmate's proper
medical care [does] not state a § 1983 claim unless
exceptional circumstances are alleged.” Wright v.
Collins, 766 F.2d 841, 849 (4th Cir. 1985) (dismissing
the plaintiff's § 1983 claim against a defendant
physician for allegedly discharging the plaintiff too early
from a medical clinic, as such claim did not rise to the
level of deliberate indifference but would, “at most,
constitute a claim of medical malpractice”).
Court finds that, assuming that Plaintiff's allegations
are true, and drawing all reasonable inferences in his favor,
Plaintiff's claim for deliberate indifference to serious
medical needs is not clearly frivolous. Thus, this action
survives initial review as to all Defendants except for
Defendant Eric Dye, Assistant Warden at Alexander. As to
Defendant Dye, Plaintiff has not alleged any personal
participation by Defendant Dye in the factual allegations in
Plaintiff's Complaint. Individual liability under Section
1983 must be based on personal participation in the
constitutional violation. See Monell v. Dep't of Soc.
Servs., 436 U.S. 658, 694 (1978) (stating that under
Section 1983, liability is personal in nature, and the
doctrine of respondeat superior does not apply). Defendant
Dye cannot be held liable for the alleged acts of other
persons based merely on his supervisory
position. Thus, the action will not go forward as to
Defendant Dye in his individual capacity.
in support of his motion to appoint counsel, Plaintiff
states, among other things, that he is incarcerated, he has
limited knowledge of the law, the issues involved in this
case are complex, and he has attempted to obtain an attorney
to represent him to no avail. There is no absolute right to
the appointment of counsel in civil actions such as this one.
Therefore, a plaintiff must present “exceptional
circumstances” in order to require the Court to seek
the assistance of a private attorney for a plaintiff who is
unable to afford counsel. Miller v. Simmons, 814
F.2d 962, 966 (4th Cir. 1987). Notwithstanding
Plaintiff's contentions to the contrary, this case does
not present exceptional circumstances that justify
appointment of counsel. Therefore, Plaintiff's motion to
appoint counsel will be denied.
Plaintiff has filed a “Motion for Leave to File Amended
Complaint, ” in which he states that he would like to
add one additional defendant after conducting discovery to
determine that defendant's name. This Court will grant
the motion for leave to file to the extent that, once some or
all of the other named Defendants are served and have
responded, the Court will allow Plaintiff to conduct limited
discovery to learn the name of the additional John Doe
reasons stated herein, Plaintiff has alleged a claim for
deliberate indifference to serious medical needs sufficient
to survive this Court's initial review ...