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Johnson v. North Department of Public Safety

United States District Court, W.D. North Carolina, Asheville Division

January 16, 2018




         THIS 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).

         I. BACKGROUND

         Pro 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.

         In his 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.

         Guice, as Commissioner of DPS, is responsible for policy and procedure, administration, and supervision of staff and employees within NC DPS during the relevant time.

         Perry, 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 similarly situated.

         Smith, 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.

         Regional 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.

         Uhren 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.

         John 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.

         DPS 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.

         Plaintiff 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 “affidavit”).

         Due to 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.).

         Plaintiff 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).


         “A 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. 1991)).

         To 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. at 20).

         The 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 administration.”).

         Plaintiff 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).


         As a 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 “adequacy-of-representation requirement”). Fed.R.Civ.P. 23(a).

         Once the prerequisites under Rule 23(a) are met, the action must next satisfy one of the three alternative sets found within Rule 23(b):

(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 ...

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