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Tunstall v. Perry

United States District Court, M.D. North Carolina

January 5, 2018

CHARLES ALONZO TUNSTALL, Plaintiff,
v.
FRANK L. PERRY, et al., Defendants.

          ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          Joi Elizabeth Peake, United States Magistrate Judge

         This prisoner civil rights action under 42 U.S.C. § 1983 is before the Court on a Complaint filed by Plaintiff Charles Alonzo Tunstall proceeding pro se and in forma pauperis, and on a Motion to Dismiss [Doc. #93] filed by Defendant Sami Hassan. For the reasons set out below, this Court recommends that Defendant Hassan's motion to dismiss be granted. In addition, the Court further recommends that the claims against the remaining Defendants be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim upon which relief may be granted. To the extent that Plaintiff has filed a Motion seeking assistance with service of papers [Doc. #100] and Motions seeking entry of default against Defendant Padgett for a failure to answer the Complaint [Doc. #103, #106], those Motions will be denied as set out below. Finally, to the extent that an entry of default was made against Defendant Welch, the Court will recommend that the entry of default against Defendant Welch be set aside and that Plaintiff's Motion for Default Judgment [Doc. #105] be denied.

         I. BACKGROUND AND PROCEDURAL HISTORY

         Plaintiff is a prisoner of the State of North Carolina who was incarcerated at various state correctional facilities during the time period relevant to this case. Plaintiff filed this action on March 13, 2015, alleging an unconstitutional denial of adequate medical treatment. (Compl. [Doc. #2].) Plaintiff asserted claims against Frank L. Perry as Secretary of the North Carolina Department of Public Safety (“DPS”), as well as DPS employees and various individuals who provided medical services while he was incarcerated: Dr. Arthur Davis, Dr. Charles Stewart, Beverly Stubbs, Peter Woglom, Dr. Sami Hassan, “Nurse Welch, ” Dr. Samuel Micklos, Ms. Padgett, Letitia Owens, “Captain Brockington, ” “Ms. Falcon, ” Paula Y. Smith, “Dr. Keyser, ” and Carmen S. Hendricks. (Id. at 2-3.[1]) The claims against Peter Woglom, Carmen Hendricks, and Arthur Davis were previously dismissed on their earlier Motions to Dismiss. Additionally, Defendant's claims against Dr. Charles Stewart, Dr. Samuel Micklos, and Dr. Keyser were previously dismissed for failure to obtain service. Therefore, this case is presently pending as to Defendants Perry, Stubbs, Owens, Smith, Falcon, Hassan, Brockington, Padgett, and Welch.

         In his Complaint, Plaintiff contends that he has suffered and continues to suffer “needless and inhumane pain” due to Defendants' participation “in the ongoing deprivation of [Plaintiff's] constitutional right to adequate medical attention and treatment.” Plaintiff asserts that he suffers from chronic gastrointestinal problems, including an “inability to functionally empty [his] bowels, with profuse colon-rectal bleeding” and severe hemorrhoids. (Compl. at 4.) Plaintiff generally contends that Defendants have failed to provide him with adequate treatment for his gastrointestinal condition.

         II. LEGAL STANDARD

         To state a claim under the Eighth Amendment based on inadequate medical care, a prisoner must allege that the defendants acted with “deliberate indifference” to his serious medical needs. Estelle v. Gamble, 429 U.S. 97, 104 (1976). “Deliberate indifference entails something more than mere negligence, ” and instead requires that a prison official “knows of and disregards an excessive risk to inmate health or safety.” Farmer v. Brennan, 511 U.S. 825, 835-37 (1994); see also Whitley v. Albers, 475 U.S. 312, 319 (1986) (noting that deliberate indifference requires “more than ordinary lack of due care for the prisoner's interests or safety”). Additionally, the Eighth Amendment does not guarantee to a prisoner the medical treatment of their choice, and “[d]isagreements between an inmate and a physician over the inmate's proper medical care do not state a § 1983 claim unless exceptional circumstances are alleged.” Wright v. Collins, 766 F.2d 841, 849 (4th Cir. 1985).

         III. DISCUSSION

         A. Defendant Sami Hassan's Motion to Dismiss

         In considering a motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6), the Court must consider whether the complaint “contain[s] sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. 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 alleged. The plausibility standard is not akin to a ‘probability requirement, ' but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are ‘merely consistent with' a defendant's liability, it ‘stops short of the line between possibility and plausibility of entitlement to relief.'” Id. (internal citations omitted). Thus, dismissal of a complaint is proper where a plaintiff's factual allegations fail to produce an inference of liability strong enough to “nudge[] [the plaintiff's] claims across the line from conceivable to plausible.” Twombly, 550 U.S. at 547. Further, while the Court must construe the allegations of a pro se complaint liberally, the plaintiff is nevertheless required to plead sufficient facts “‘to raise a right to relief above the speculative level.'” See Chambers v. Amazon.com Inc., et al., 632 Fed.Appx. 742, 743 (4th Cir. 2015) (quoting Twombly, 550 U.S. at 555).[2]

         In his Motion to Dismiss, Defendant Hassan argues that Plaintiff fails to state a plausible Eighth Amendment claim against him. Defendant Hassan contends that Plaintiff's allegations are fatally deficient because Plaintiff's Complaint consists of “wholly conclusory statements devoid of factual substance.” (Def.'s Br. [Doc. #94] at 6.) In considering this contention, the Court notes that Plaintiff alleges that Defendant Hassan denied him “meaningful access to appropriate medical attention and treatment at the Lanesboro CI, ” evincing “deliberate indifference which was and continues to be so reprehensible and barbaric as to constitute no treatment at all.” However, Plaintiff does not provide any specific factual information regarding Defendants' conduct, nor does he allege that Defendant Hassan “entirely fail[ed] to consider [his] medical complaints or intentionally delay[ed] or den[ied] access to adequate medical care.” Coleman v. Poff, 497 F. App'x. 337, 339 (4th Cir. 2012). Rather, as Defendant Hassan notes, Plaintiff implicitly recognizes that he received some form of medical care. (Def.'s Br. [Doc. # 93] at 5-6.) While not entirely clear based on Plaintiff's sparse allegations, it appears that Plaintiff is contending that the treatment provided by Dr. Hassan was not successful and/or that Dr. Hassan's treatment fell below a reasonable standard of care and was thus negligent. However, these contentions are not sufficient to state a claim for relief under § 1983. Thus, the Court agrees that Plaintiff's claims against Defendant Hassan are conclusory, and that to the extent any facts are alleged, those allegations fail to state a plausible claim for relief under § 1983.

         Moreover, Defendant Hassan also argues that Plaintiff's claims against him are barred by the statute of limitations. (Def.'s Br. [Doc. #94] at 4.) While affirmative defenses ordinarily cannot be raised on a motion to dismiss, a defendant may properly raise an affirmative defense of statute of limitations through Rule 12(b)(6) when the facts supporting the defense plainly appear on the face of the Complaint. See Goodman v. Praxair, Inc., 494 F.3d 458, 464 (4th Cir. 2007); Turner v. Afro-American Newspaper Co., 572 F.Supp.2d 71, 72 (D.D.C. 2008). As Defendant Hassan points out, a § 1983 claim in North Carolina is time-barred if not filed within three years of the cause of action's accrual. Nat'l Advertising Co. v. City of Raleigh, 947 F.2d 1158, 1161-62 (4th Cir. 1991). Under federal law, a § 1983 action accrues “when the plaintiff possesses sufficient facts about the harm done to him that reasonable inquiry will reveal his cause of action.” Nasim v. Warden, Maryland House of Correction, 64 F.3d 951, 955 (4th Cir. 1995). In this case, Plaintiff filed his Complaint on March 13, 2015 and, as Defendant Hassan notes, any claims that accrued before March 12, 2012 are barred by the statute of limitations. (Def.'s Br. [Doc. #94] at 4.) Plaintiff alleges that Defendant Hassan was deliberately indifferent to his medical needs between May 26, 2010 and January 12, 2012, while Plaintiff was incarcerated at Lanesboro CI. Plaintiff transferred to a different facility in January 2012. Thus, Plaintiff's treatment by Dr. Hassan at Lanesboro CI would be outside the 3-year statute of limitations. Accordingly, this claim should also be dismissed based on the applicable statute of limitations.

         B. Plaintiff's Claims Against Remaining Defendants

         As to the claims against the remaining defendants, the Court notes that Plaintiff is proceeding in forma pauperis, and the in forma pauperis statute provides that “the court shall dismiss the case at any time if the court determines that - . . . (B) the action or appeal - (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) ...


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