Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Seelig v. Perry

United States District Court, M.D. North Carolina

October 30, 2017

PAUL EVAN SEELIG, Plaintiff,
v.
FRANK L. PERRY, et al., Defendants.

          MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          JOE L. WEBSTER UNITED STATES MAGISTRATE JUDGE.

         This matter is before the Court on Defendant Dr. Gregory D. Haynes's ("Defendant Haynes") motion to dismiss for failure to state a claim. (Docket Entry 39.) Also before the Court is Defendants Dr. Olushola Metiko ("Defendant Metiko"), Physician Assistant Anne V. Christopher ("Defendant Christopher"), and Nurse Honey Siao's ("Defendant Siao") motion for summary judgment solely addressing Plaintiffs failure to exhaust available administrative remedies and motion to dismiss Plaintiffs complaint. (Docket Entry 46.) For the reasons that follow, the Court will recommend granting Defendant Haynes's motion to dismiss for failure to state a claim and Defendants Metiko, Christopher, Siao's motion for summary judgment and motion to dismiss. (Docket Entries 39, 46.)

         I. FACTUAL BACKGROUND

         Plaintiff, a pro se inmate, filed this action on September 22, 2016, pursuant to 42 U.S.C. § 1983, alleging deliberate indifference to a serious medical need while in the custody of the North Carolina Department of Public Safety (" N.C. D.P.S."). (See generally Complaint, Docket Entry 2.) Specifically, Plaintiff first alleges that on Match 30, 2015, while housed at Alexander Correctional Institution ("ACI"), he began experiencing chest, left arm, and shoulder blade pain. (Id. at 9.) According to Plaintiff, he knew this pain was related to his previous diagnosis of cardiac heart disease. (Id.)

         Next, on April 17, 2015, Plaintiff was transferred to Randolph Correctional Institution ("RCI") medical center. (Id. at 13.) Then, on April 22, 2015, Plaintiff began experiencing excruciating pain throughout his extremities. (Id. at 14.) That same day, Plaintiff was taken into the examination room and examined by Defendant Haynes. (Id. at 15-16.) Defendant Haynes diagnosed Plaintiff as suffering from arthritis in his chest and not cardiac arrest. (Id. at 16.) According to Plaintiff, Defendant Haynes made an attempt to administer an unfamiliar medication, but before he could do so, Plaintiff inquired as to the medication he was providing him and Defendant Haynes answered "Torydal[.]" (Id. at 16-17.) Plaintiff then explained "Tordayl" sends him into cardiac arrest and strongly advised Defendant Haynes to review his medical files. (Id. at 16-17.) Defendant Haynes next looked worried and instructed Nurse Gray to administer the Electrocardiogram ("EKG") test. (Id. at 17.) Plaintiff alleges that Nurse Gray did not know how to use the EKG equipment, and Defendant Haynes then instructed her to call the ambulance. (Id. at 18.) Once emergency medical services ("EMS") arrived, they questioned Nurse Gray and Defendant Haynes as to why EMS was not called immediately. (Id.) Further, EMS applied CPR and shock pads upon Plaintiff in order to revive him and transported him to High Point Regional Hospital ("HPRH"). (Id. at 19-20.)

         Thereafter, on December 8, 2015, while at RCI Plaintiff began experiencing "G.I. bleeding" and went to receive medicine from Nurse Nichols, who consulted with Defendant Haynes and issued blood thinner medication. (Id. at 30.) Further, due to Plaintiffs profuse bleeding, he was transferred to Randolph Hospital. (Id. at 31.)

         The complaint further alleges that on February 4, 2016, Plaintiff spoke with Defendant Metiko, a Medical Director at Central Prison ("CP") Regional Medical Center. (Id. at 42.) Plaintiff and Defendant Metiko discussed Plaintiffs need to get to the "U. N.C. Chapel Hill Heart Failure Clinic" because "the left ventrical [sic] assist system to bridge [him] over to heart transplant[.]" (Id.) Defendant Metiko told Plaintiff "he would look into it". (Id.) After speaking with Defendant Metiko on February 11, 2016, Plaintiff concluded that Defendant Metiko was procrastinating in regards to his medical investigation. (Id. at 42-43.) On February 18, 2016, Plaintiff again spoke with Defendant Metiko, and he indicated that "he was not there to improve [Plaintiffs] health, but to save the State of North Carolina money on health care." (Id. at 43.) Also, Defendant Metiko indicated that he was there to ensure "[h]e received his "bonus" for saving the prison system['s] money." (Id.) Plaintiff further claims that under the supervision of Dr. Metiko, Plaintiff only received the recommendation to stay in bed for a week. (Id.)

         Plaintiff also alleges that on August 5, 2016, he was transferred to CP Regional Medical Center urgent care where he met Defendant Christopher. (Id. at 49.) Plaintiff states that Defendant Christopher spent approximately two minutes with him and told him that he would not be receiving a heart transplant, "nor get to U. N.C. Heart Failure Clinic." (Id.) Further, on August 8, 2016, Defendant Christopher rewrote "without consultation" how Plaintiff takes his medication and "how they are given [.]" (Id. at 49-50.)

         On August 9, 2016, Plaintiff was seen by Defendant Metiko who told Plaintiff he would be "staying at Central Prison Regional Medical Center locked-up 24 hours a day, 7 days a week" because he was "costing Randolph Correctional Center to [sic] much money[.]" (Id. at 50.)

On 11th August, 2016, 1 saw PA. Christopher for 2 minutes and nothing has been done. On 16th August, 2016, saw Dr. Meteko [sic] who did not do anything. (Rounds only) On 23rd August, 2016, saw Dr. Meteko [sic], and again nothing has been done. (Rounds only)

(Id. at 51.)

         Then, on August 26, 2016, during Plaintiffs examination, Defendant Christopher told Plaintiff she had "issued [a] walking order, since lying in bed" for a month was terrible for his health. (Id. at 51.) Plaintiff was examined by Defendant Metiko again on August 30, 2016, and Plaintiff alleged that Defendant Metiko seemed concerned after speaking with Dr. Paul Smith. (Id.) Specifically, Plaintiff spoke with Defendant Metiko about how lying in bed has exacerbated Plaintiffs medical issues and Defendant Metiko responded that he would have an Orthopedist examine Plaintiff, but heart surgery may not be an option. (Id.) Plaintiff then claims he has been "locked up 24 hour[s] a day, 7 days a week and have [sic] not seen a cardiologist, [at] U. N.C. Heart Failure Clinic." (Id.)

         II. PROCEDURAL BACKGROUND

         On September 22, 2016, Plaintiff filed a complaint against Defendants, pursuant to 42 U.S.C. § 1983. (See generally Complaint, Docket Entry 2; Docket Entry 3.) On March 13, 2017, Defendant Haynes filed a motion to dismiss for failure to state a claim. (Docket Entry 39.) On March 17, 2017, Defendants Christopher, Metiko, and Siao filed a motion for summary judgment solely addressing Plaintiffs failure to exhaust available administrative remedies and motion to dismiss Plaintiffs complaint. (Docket Entry 46.) On March 17, 2017, Defendants Christopher, Metiko, and Siao filed an answer to Plaintiffs complaint. (Docket Entry 48.) On June 21, 2017, Plaintiff filed a response to Defendants' motion to dismiss and motion for summary judgment. (Docket Entry 52 referencing 39, 46.)

         On July 17, 2017, Defendants Metiko, Christopher, and Siao filed a reply in support of their motion for summary judgment solely addressing Plaintiffs failure to exhaust available administrative remedies and motion to dismiss Plaintiffs complaint. (Docket Entry 55.) That same day, Defendants filed an affidavit in support of their motion for summary judgment. (Docket Entry 56 referencing 46.)

         III. DISCUSSION

         A. Motion to Dismiss

         Standard of Review

         Defendants argue that dismissal is appropriate pursuant to Federal Rule of Civil Procedure 12(b)(6). A motion to dismiss pursuant to Rule 12(b)(6) tests the sufficiency of the complaint. Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999). A complaint that does not "contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face'" must be dismissed. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic v. Twombly, 550 U.S. 544, 570 (2007)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct." Id.; see also Simmons v. United Mortg. and Loan Inv., LLC, 634 F.3d 754, 768 (4th Cir. 2011) ("On a Rule 12(b)(6) motion, a complaint must be dismissed if it does not allege enough facts to state a claim to relief that is plausible on its face.") (citations and quotations omitted). The "court accepts all well-pled facts as true and construes these facts in the light most favorable to the plaintiff, " but does not consider "legal conclusions, elements of a cause of action, and bare assertions devoid of factual enhancement] . . . unwarranted inferences, unreasonable conclusions, or arguments." Nemet Chevrolet, Ltd. v. Consnmeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir. 2009) (citations omitted). In other words, the standard requires a plaintiff to articulate facts, that, when accepted as true, demonstrate the plaintiff has stated a claim that makes it plausible he is entitled to relief. Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (quoting Iqbal, 556 U.S. at 678, and Twombly, 550 U.S. at 557).

         Pro se complaints are to be liberally construed in assessing sufficiency under the Federal Rules of Civil Procedure. Erickson v. Pardus, 551 U.S. 89, 94 (2007). However, even under this liberal construction, "generosity is not fantasy, " and the court is not expected to plead a plaintiffs claim for him. Bender v. Suburban Hosp., Inc., 159 F.3d 186, 192 (4th Cir. 1998).

         Analysis

         North Carolina Rule of Civil Procedure 9(j)

         Defendant Haynes has moved to dismiss Plaintiffs complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). (Docket Entry 39.) This motion is partially predicated on Plaintiffs failure to meet the mandatory pre-filing certification requirements of Rule 9(j) of the North Carolina General Statutes 1A-1, Rule 90. (Docket Entry 40 at 5-10.)

         In North Carolina, a plaintiff alleging medical malpractice must comply with North Carolina Rule of Civil Procedure 90 which requires a plaintiff to include in his complaint an assertion that that an expert in the same field reviewed the medical care at issue and is willing to testify that the medical cafe did not comply with the applicable standard of care. Simmons v. Shelton, 1:13CV566, 2015 WL 2345593, at *4 (M.D. N.C. May 14, 2015); See N.C. R. Civ. P. 90. Failure to comply with Rule 9(j) is grounds for dismissal. See Littlepaige v. United States, 528 Fed.App'x 289, 292 (4th Cir. 2013) (unpublished) (finding in a Federal Tort Claims Act case, "that, where applicable, a Rule 90 certification is a mandatory requirement for a plaintiff in a North Carolina medical malpractice action."); Boula v. United States, 1:11cv366, 2013 WL 5962935, at *2 (M.D. N.C. Nov. 7, 2013); Moore v. Pitt Cnty Mem. Hasp., 139 F.Supp.2d 712, 713-14 (E.D. N.C. 2001). The only exception to this rule is where "[t]he pleading alleges facts establishing negligence under the existing common-law doctrine of res ipsa loquitur." Rule 90(3). More specifically, pursuant to N.C. Gen. Stat. § 90-21. 11(2)a, complaint that alleges medical malpractice shall be dismissed unless:

(1) The pleading specifically asserts that the medical care and all medical records pertaining to the alleged negligence that are available to the plaintiff after reasonable inquiry have been reviewed by a person who is reasonably expected to qualify as an expert witness under Rule 702 of the Rules of Evidence and who is willing to testify that the medical care did not comply with the applicable standard of care; (2) The pleading specifically asserts that the medical care and all medical records pertaining to the alleged negligence that are available to the plaintiff after reasonable inquiry have been reviewed by a person that the complainant will seek to have qualified as an expert witness by motion under Rule 702(e) of the Rules of Evidence and who is willing to testify that the medical care did not comply with the applicable standard of care, and the motion is filed with the complaint[1]; or (3) The pleading alleges facts establishing negligence under the existing common-law doctrine of res ipsa loquitur.

Moore v. Cent. Carolina Surgical Bye Associates, P.A., 4:12-CV-00015, 2013 WL 1123850, at *3 (W.D. Va. Mar. 15, 2013)

         Here, Plaintiff is challenging the medical care he received while at RCI. In addition, Plaintiff proffers himself as the medical expert based on the following qualifications:

(1) Trained in basic and advanced first aid; (2) Emergency Medical Technician assigned to Pacific Coast Search and Rescue Team for approximately (6) years; (3) Instructor in cardiopulinary [sic] resuscitation certified by the American Red Cross; (4) Taught numerous law enforcement agencies, hospitals, nursing homes, Boy Scouts or America, etc. . in cardiopulminary [sic] resuscitation; (5) Have qualified and testified in cases with respect to emergency protocols and standard of care in cardiopulminary resuscitation and cardiac heart disease; (6) Familiar with cardiac protocols and standard of care; (7) Familiar with medications associated with cardiac heart disease and the drug interactions between them; (8) Continue ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.