United States District Court, W.D. North Carolina, Asheville Division
D. WHITNEY, CHIEF UNITED STATES DISTRICT JUDGE.
MATTER is before the Court on initial review of
Plaintiff's Amended Complaint, (Doc. No. 8), and
incorporated motions to certify a class and for preliminary
injunction, the North Carolina Department of Justice's
Response to an Order to show cause why preliminary injunctive
relief should not be granted, (Doc. No. 15), and
Plaintiff's Reply, (Doc. No. 17). Plaintiff is proceeding
in forma pauperis. See (Doc. No. 7).
se Plaintiff Wiley Johnson has filed a civil rights suit
pursuant to 42 U.S.C. § 1983, the Americans with
Disabilities Act (“ADA”), Rehabilitation Act
(“RA”) and the North Carolina Constitution with
regards to incidents that allegedly occurred at the Mountain
View and Avery Mitchell Correctional Institutions. He names
the following as Defendants: North Carolina Department of
Public Safety (“DPS”) Division of Prisons, DPS
Commissioner David W. Guice, Dr. Robert Uhren, DPS Secretary
Frank L. Perry, Education Assistant James Duckworth, Unit
Manager Bret Bullis, Assistant Unit Manager Chad Green, PA
Keith D'Amico, Nurse Pendland, Dr. Paula Y. Smith, Nurse
Stroupe, Nurse Remfro, Classification Coordinator Cindy
Haynes, Program Director I Carolyn Buchanan, Program
Supervisor of Education James Vaughn, Western Regional
Medical Director Sandra Pittman, Mountain View C.I. Lead RN
Norma Melton, Mountain View C.I. Administrator Mike Slagle,
Avery Mitchell C.I. Administrator Mike Ball, and John and
Jane Doe A-Z.
54-page Amended Complaint filed on December 29, 2016, (Doc.
No. 8), Plaintiff makes repetitive allegations on behalf of
himself and unnamed class members for whom he seeks class
certification. The gist of his allegations is that DPS does
not screen incoming inmates for Hepatitis-C virus and, for
inmates who have been diagnosed with Hepatitis-C, and refuses
to provide “breakthrough” 12-week oral pill
treatment until infected inmates have experienced severe and
irreversible liver damage.
as Commissioner of DPS, is responsible for policy and
procedure, administration, and supervision of staff and
employees within NC DPS during the relevant time.
as secretary of DPS, is responsible for oversight, operation,
and administration of DPS including providing appropriate
medical treatment and formulating policy and procedure to
ensure the provision of treatment for Plaintiff and those
as DPS medical director, serves on the Utilization Review
Board, and is responsible for overseeing delivery of all
medical services in division of prisons as well as the
establishment of medical policy and procedure that governs
the med treatment of all inmates in the division of prisons.
Medical Director Pittman, Mountain View C.I. Lead Nurse
Melton, Mountain View C.I. Administrator Slagle, Avery
Mitchell C.I. Lead Nurse Penland, are responsible for
supervising and monitoring the delivery of medical and dental
care services to inmates, which must be provided consistent
with community standards.
and D'Amico are the primary medical providers for PDS at
Mountain View C.I. and Avery Mitchell C.I., and both treated
Plaintiff. Uhren and D'Amico have the obligation to
provide independent, individual, safe, effective medical care
Plaintiff and each similarly situated class member consistent
with community standard of medical care. They were
deliberately indifferent to Plaintiff's disability,
disease, and serious medical needs regarding his Hepatitis-C
infection in compliance with current standards of
individualized professional medical care.
and Jane Does are doctors, nurses, case managers,
correctional officers, supervisors, “and any N.C. Dept
of Public Safety/ Division of Prisons, employees, agents, or
representatives whose work place are Mountain View
Correctional Institution, Avery Mitchell Correctional
Institution and any other prisons operated by the defendants
charged with responding to requests for medical care for HCV
Infections from now-unknown inmates within the NC prison
systems.” (Doc. No. 8 at 14). They were deliberately
indifferent by refusing to treat Plaintiff's disability,
disease, and serious medical needs regarding Hepatitis-C
infection in compliance with current standards of
individualized professional medical care.
policy, and its employees' enforcement of it, amounts to
cruel and unusual punishment, violates equal protection
because Hepatitis-C is screened and treated differently from
HIV, and violates the North Carolina Constitution. Further,
the policy violates the ADA and RA because Hepatitis-C
infected inmates are excluded from DPS programs that could
result in gain time.
seeks declaratory judgment, injunctive relief, compensatory
and punitive damages, and such other relief to which he is
entitled. He also seeks preliminary injunctive relief for
immediate treatment with the 12-week oral pill. See
also (Doc. Nos. 9, 12) (letter and unverified
the allegedly serious nature of Plaintiff's severe and
worsening medical condition, the Court ordered DPS to show
cause why preliminary injunctive relief should not be
granted. (Doc. No. 14). DPS filed a Response arguing that
preliminary injunctive relief is moot. (Doc. No. 15).
According to an affidavit by Defendant Smith, Plaintiff began
the 12-week oral Hepatitis-C treatment on August 22, 2016.
(Doc. No. 15-1). Blood tests drawn on November 30, 2016, and
March 1, 2017, demonstrate that he has been cured of the
Hepatitis-C virus. (Id.).
filed a sworn statement in reply admitting that DPS had
provided the medication, but arguing that it only did so
after he filed a tort claim in North Carolina court in
September, 2013. (Doc. No. 17). He explains that the lack of
proactive treatment to prevent total liver failure and death
prior to the completion of his sentence is the
“ultimate cause” of him filing this suit. (Doc.
No. 17 at 2).
MANDATORY PRELIMINARY INJUNCTION
preliminary injunction is an extraordinary remedy never
awarded as of right.” Winter v. Natural Res. Def.
Council, Inc., 555 U.S. 7, 24 (2008) (citing Munaf
v. Geren, 553 U.S. 674, 689-90 (2008)). A preliminary
injunction is a remedy that is “granted only sparingly
and in limited circumstances.” MicroStrategy, Inc.
v. Motorola, Inc., 245 F.3d 335, 339 (4th
Cir. 2001) (quoting Direx Israel, Ltd. v. Breakthrough
Med. Corp., 952 F.2d 802, 816 (4th Cir.
obtain a preliminary injunction, a movant must demonstrate:
(1) that he is likely to succeed on the merits; (2) that he
is likely to suffer irreparable harm in the absence of
preliminary relief; (3) that the balance of equities tips in
his favor; and (4) that an injunction is in the public
interest. DiBiase v. SPX Corp., 872 F.3d 224, 230
(4th Cir. 2017) (quoting Winter, 555 U.S.
typical preliminary injunction is prohibitory and generally
seeks only to maintain the status quo pending a trial on the
merits. See Pashby v. Delia, 709 F.3d 307, 319
(4th Cir. 2013). By contrast, a mandatory
injunction “goes well beyond simply maintaining the
status quo pendent lite, is particularly disfavored,
and should not be issued unless the facts and law clearly
favor the moving party.” Taylor v. Freeman, 34
F.3d 266, 270 n. 2 (4th Cir. 1994) (quoting
Martinez v. Matthews, 544 F.2d 1233, 1243
(5th Cir. 1976)). A mandatory injunction is
warranted in only the most extraordinary circumstances.
Id. (citing Wetzel v. Edwards, 635 F.2d
283, 286 (4th Cir. 1980)). Further, it is well
established that “absent the most extraordinary
circumstances, federal courts are not to immerse themselves
in the management of state prisons or substitute their
judgment for that of the trained penological authorities
charged with the administration of such facilities.”
Taylor, 34 F.3d at 268; see Rogers v.
Scurr, 676 F.2d 1211, 1214 (8th Cir. 1982)
(“judicial restraint is especially called for in
dealing with the complex and intractable problems of prison
seeks emergency treatment for his Hepatitis-C infection.
However, DPS has demonstrated, and Plaintiff now admits, that
he received the “breakthrough” drug treatment he
sought and has been cured of Hepatitis-C. Therefore,
Plaintiff's motion for preliminary injunction is denied
as moot. See, e.g., Neely v.
Ortiz, 241 Fed.Appx. 474 (10th Cir. 2007)
(inmate's request for injunctive relief was moot where
the prison provided the medical treatment plaintiff sought
before the court ruled on his request).
general matter, class actions are appropriate in § 1983
litigation. Kirby v. Blackledge, 530 F.2d 583, 588
(4th Cir. 1976). To be certified as a class
action, precisely defined class exist and the proposed class
representatives be members of the putative class.
Fed.R.Civ.P. 23(a); see East Texas Motor Freight Sys.,
Inc. v. Rodriguez, 431 U.S. 395, 403 (1977) (“a
class representative must be a part of the class”). In
addition, the four prerequisites expressly set out in Rule
23(a) must be satisfied. That is: (1) the class is so
numerous that joinder of all members is impracticable (the
“numerosity requirement”); (2) there are
questions of law or fact common to the class (the
“commonality requirement”); (3) the claims or
defenses of the representative parties are typical of the
claims or defenses of the class (the “typicality
requirement”); and (4) the representative parties will
fairly and adequately protect the interests of the class (the
the prerequisites under Rule 23(a) are met, the action must
next satisfy one of the three alternative sets found within
(1) prosecuting separate actions by or against individual
class members that would create a risk of:
(A) inconsistent or varying adjudications with respect to
individual class members that would establish incompatible
standards of conduct ...