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Banks v. Wiggins

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

December 6, 2017

RICKY BANKS, Plaintiff,
v.
ANGELO WIGGINS, DOMANICK D. SMITH, MICHELE SMITH HUNTER, DR. MARY RICHARDSON, PAULA SMITH, OLUSHOLA METIKO, DR. UMESI, OFFICER EVANS, RACHAEL ELEY, NURSE RICHARDSON, NURSE HUX, NURSE MOSS, NURSE BAILEY, NURSE CLARK, NURSE ROE, KAREN HEDGEPETH, NURSE BROWN, NURSE KATHE, NURSE AUDRY, NURSE SIMMONS, NURSE McCALL, NURSE DAVIS, NURSE PADEIA, NURSE SANDERS, TRUDEAU NICHOLS, NURSE MAUMA, NURSE GRIMES, BRANDI ROWLEY, NURSE COLLINS, LESLIE MOSLEY, NURSE GRIFFIN, NURSE SOULES, NURSE HARDISON, DENTIST ASST. LEE, DENTIST ASST. RILEY, NURSE LAUORY, CHANSON A. DeVAUL, Defendants.[1]

          ORDER

          LOUISE W. FLANAGAN, United States District Judge

         This matter is before the court on certain defendants' motions to dismiss and for summary judgment (DE 72, 79, 104, 140, 160, 169). Also pending are the following motions by plaintiff: against summary judgment (DE 97); to investigate for perjury (DE 110, 111, 118, 119, 120); to amend complaint (DE 138, 145, 146); for an entry of default and for default judgment (DE 174, 181, 199); to dismiss (DE 176); plaintiff's motion to withdrawal motion to dismiss (DE 182); plaintiff's motion to cease and stop a transfer (DE 197); plaintiff's motion for a declaratory judgment (DE 198).

         STATEMENT OF THE CASE

         Plaintiff, a state inmate proceeding pro se, filed this civil rights action on July 15, 2016, pursuant to 42 U.S.C. § 1983, alleging that defendants violated his Eighth Amendment rights and rights under the Americans with Disabilities Act. On August 15, 2016, the court ordered plaintiff to particularize his complaint. Plaintiff filed a particularized complaint on August 24, 2016, which he amended on March 20, 2017.

         Before the court are defendants' motions for dismissal on various grounds. In particular, on April 17, 2017, defendant Dr. Mary Richardson (“Richardson”) filed the instant motion to dismiss for failure to state a claim. Dr. Olushola Metiko (“Metiko”) filed the instant motion on June 7, 2017, seeking dismissal for failure to state a claim and asserting the doctrine of qualified immunity. Defendants Dr. Chanson A. DeVaul (“DeVaul”) and Dr. Umesi (“Umesi”) filed the instant motion on August 11, 2017, seeking dismissal for failure to state a claim and qualified immunity. Defendants Nurse Bailey (“Bailey”), Nurse Collins (“Collins”), Racheal Eley (“Eley”), Officer Evans (“Evans”), Nurse Grimes (“Grimes”), Nurse Hardison (“Hardison”), Karen Hedgepeth (“Hedgepeth”), Nurse Hux (“Hux”), Dentist Asst. Lee (“Lee”), Leslie Mosley (“Mosley”), Trudeau Nichols (“Nichols”), Dentist Asst. Riley (“Riley”), Brandi Rowley (“Rowley”), and Nurse Sanders (“Sanders”) filed the instant motion on September 19, 2017, seeking dismissal for failure to state a claim and asserting both sovereign and qualified immunity. Defendant Nurse Moss (“Moss”) filed the instant motion on October 13, 2017, seeking dismissal for failure to state a claim and for lack of jurisdiction on the theory of qualified immunity.

         All of those defendants, except Richardson, also moved for summary judgment on the basis of plaintiff's failure to exhaust his administrative remedies, in conjunction with their motions to dismiss, asserting that plaintiff did not exhaust the administrative grievance process before he filed suit on July 15, 2016. In addition, defendants Domanick Smith, Paula Smith, Michele Smith Hunter (“Hunter”), and Angelo Wiggins (“Wiggins”) filed the instant motion for summary judgment on the same basis on April 17, 2017.

         In the meantime, plaintiff filed various motions now pending before the court. On May 26, 2017, plaintiff filed a motion against defendants' motions for summary judgment. On June 9, 2017, June 12, 2017, and June 28, 2017, plaintiff filed five motions to investigate defendants for perjury. On August 9, 2017, August 15, 2017, and August 21, 2017, plaintiff filed three motions to amend his particularized complaint. On October 16, 2017, plaintiff filed for an entry of default. On October 18, 2017, plaintiff filed a motion to dismiss as to defendant Moss. On October 25, 2017, plaintiff filed for default judgment as to defendant Moss. On October 26, 2017, plaintiff filed a motion to withdraw his motion to dismiss regarding defendant Moss. On November 8, 2017, plaintiff filed a motion to cease and stop a transfer to another facility. On November 13, 2017, plaintiff filed a motion for a declaratory judgment. On November 15, 2017, plaintiff filed a motion for a default judgment as to defendants Nurse Mauma (“Mauma”), Grimes, and Moss.

         STATEMENT OF THE FACTS

         Except as otherwise noted below, the undisputed facts are as follows: plaintiff is a state prisoner in custody of the North Carolina Department of Public Safety. In his amended complaint, plaintiff alleges defendants Domanick Smith, Wiggins, Hunter, Evans, and Sanders violated the Eighth Amendment and the Americans with Disabilities Act when he was denied access to his wheelchair for an eight day period and a sixty day period at Nash Correctional Institute. Specifically, plaintiff alleges defendant Evans refused to bring him his wheelchair and pushed him down the hallway while he was “screaming in pain.” (Am. Comp. 12, 13). Plaintiff also alleges defendant Sanders took his wheelchair from him, which interrupted his eating, drinking, recreation, medical, and shower schedule. (Id. 12). Further, plaintiff alleges he was placed in segregation by defendant Wiggins which resulted in him being “. . . unable to eat, drink, do recreation[, ] go get my mandatory medications or shower.” (Id. 12).

         Plaintiff also alleges “all of the defendants in the medical, dental and the UR board have denied my treatment and access to care for my very serious medical needs by not referring me to doctor specialists to do the necessary tests . . . and I have not been able to get my mandatory medications. . .” (Id. at 13). Specifically, plaintiff alleges that he did not receive insoles prescribed to him by defendant Umesi two years ago and that defendant DeVaul failed to see him to treat his medical ailments. (Id. at 14). As a result, plaintiff alleges he has endured pain and suffering. (Id.). As a remedy, plaintiff seeks damages and permanent ADA accommodations. (Id. 15). Additional facts regarding exhaustion will be set forth in the analysis below.

         DISCUSSION

         A. Plaintiff's Motions to Amend

         Plaintiff filed three motions to amend his complaint. In his first motion, filed August 9, 2017, plaintiff seeks to add allegations against Nurse Garrett, Nurse Franklin, and Nurse Tyler, who are not named in the complaint, for denying him access to a specialist to treat his medical needs on August 4, 2017. In his second motion, filed August 15, 2017, plaintiff seeks to add allegations against “the medical and UR Board” and Nurse Ferrel, who also is not named in the complaint. In his third motion, filed August 21, 2017, plaintiff seeks to add allegations against Nurse Cherry, who is not named in the complaint, for depriving plaintiff from receiving medical care and threatening to send him to segregation when he asked to see a podiatrist. Additionally, plaintiff asserts that Nurse Cherry is the defendant he identified in his second motion to amend on August 15, 2017, as Nurse Ferrel, and to disregard any allegations against “Nurse Ferrel.” In accordance with the court's order on October 6, 2016, where the court dismissed the claims against the unnamed members of the Utilization Review Board for failing to meet the minimum pleading standards, plaintiff's motion to amend (DE 145) to attempt to again add those same unnamed members of the Utilization Review Board is DENIED.

         By contrast, for good cause shown, the other two motions to amend (DE 138, 146) are GRANTED. The court will deem the additional allegations asserted as part of those motions to amend as incorporated into plaintiff's particularized amended complaint. Because these motions to amend add new defendants and do not alter allegations against existing defendants, plaintiff need not serve existing defendants. However, plaintiff must serve the newly named defendants. And for the same reason, plaintiff's motions to amend do not render moot defendants' instant motions for failure to state a claim. The clerk of court is DIRECTED to proceed in accordance with standing order 14-SO-02 which governs service of process in state prisoner civil rights cases regarding the newly named defendants. In the event it become necessary, the court DIRECTS the United States Marshal Service to make service pursuant to 28 U.S.C. § 1915(d).

         Plaintiff likewise is warned that unnecessary and excessive filings are not helpful to the court and impede judicial efficiency and the administration of justice. If plaintiff continues to make unnecessarily fragmented filings, the court will consider sanctions.

         B. Plaintiff's Motion for an Entry of Default

         As an initial matter, the court accepts defendant Moss's answer as timely. Because the court has accepted Moss's answer as timely, plaintiff's motion for an entry of default is DENIED as moot.

         C. Plaintiff's Motions for Default Judgment

         Plaintiff filed two motions for default judgment. Plaintiff's first motion for default judgment is a list of allegations regarding the integrity of parties to this action, all of whom have not been served. Because plaintiff's motion is frivolous and he has not obtained service on defendants, plaintiff's motion is DENIED.

         Additionally, the record reflects plaintiff failed to make service on defendants Nurse Audry, Nurse Brown, Nurse Clark, Nurse Davis, Nurse Griffin, Nurse Kathe, Nurse Lauory, Nurse McCall, Nurse Padeia, Nurse Richardson, Nurse Roe, Nurse Simmons, and Nurse Soules, within the 90 day time period required by Federal Rule of Civil Procedure 4(m). The court has made every effort to aid plaintiff in accomplishing service on all defendants. See (DE 78, 127, 131). The court has no other method of ascertaining an address or otherwise assisting plaintiff in obtaining service on defendants. Based upon the foregoing, plaintiff is given 14 days to show cause as to why this action should not be dismissed without prejudice for failure to obtain service on defendants Nurse Audry, Nurse Brown, Nurse Clark, Nurse Davis, Nurse Griffin, Nurse Kathe, Nurse Lauory, Nurse McCall, Nurse Padeia, Nurse Richardson, Nurse Roe, Nurse Simmons, and Nurse Soules within the 90 day time period required by Rule 4(m) of the Federal Rules of Civil Procedure.

         Plaintiff's second motion for a default judgment involves defendant Mauma, who also has not been served, and defendants Grimes, Riley, and Moss, who, for the reasons stated below, are dismissed from this action. Therefore, plaintiff's second motion is DENIED. As for defendant Mauma, there is an address for service and thus, the United States Marshal is directed ...


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