United States District Court, E.D. North Carolina, Western Division
ANTONIO M. ORTIZ, Plaintiff,
GEORGE T. SOLOMON, PAULA SMITH, MONICA BOND, CARLTON JOYNER, RAYNOR DONNIER R., DR. METIKO, WILLIAM ELDERDICE, RODNIQUE RIVERS, MATTHEW BAUM, DR. McKENZIE, JESSICA REID,  and NURSE GODDARD, Defendants.
W. FLANAGAN UNITED STATES DISTRICT JUDGE.
matter is before the court on motion to dismiss by defendants
Jessica Reid (“Reid”) and Dr. McKenzie
(“McKenzie”) (DE 46); motion for summary judgment
and motion to dismiss by defendant Dr. Metiko
(“Metiko”) (DE 50); and plaintiff's motion to
appoint counsel (DE 68). The issues raised have been fully
briefed and are ripe for adjudication. For the following
reasons, the court denies plaintiff's motion, grants in
part and denies in part defendants Reid and McKenzie's
motion, and denies defendant Metiko's motion.
OF THE CASE
claims deliberate indifference to his serious medical needs
and denial of proper medical care in violation of the Eighth
Amendment while incarcerated at Central Prison. (Am. Compl.
¶ 1). Plaintiff filed his first
complaint on September 28, 2015. On March 29, 2016, the court
ordered plaintiff to particularize his complaint. On May 13,
2016, plaintiff filed a particularized complaint, which he
amended on September 2, 2016.
October 15, 2015, plaintiff filed a motion to appoint
counsel. On March 29, 2016, the court denied plaintiff's
motion. On March 6, 2017, plaintiff filed a motion for
reconsideration of the court's order, which the court
denied on March 10, 2017. On May 25, 2017, plaintiff filed
the instant second motion to appoint counsel.
April 7, 2017, defendant Metiko filed the instant motion for
summary judgment arguing that plaintiff failed to exhaust his
administrative remedies before he brought his lawsuit.
(Def.'s Mem. (DE 53) 12-13). Defendant Metiko also moves
to dismiss pursuant to Federal Rule of Civil Procedure Rule
12(b)(6) for failure to state a claim; on the basis of
Eleventh Amendment immunity and qualified immunity; and on
the basis that plaintiff did not comply with North Carolina
Rule of Civil Procedure Rule 9(j). On March 31, 2017,
defendants Reid and McKenzie filed a motion to dismiss under
Rule 12(b)(6) and Federal Rule of Civil Procedure Rule 8 for
failure to state a claim. Defendants Reid and McKenzie
similarly argue plaintiff failed to satisfy Rule 9(j).
OF THE FACTS
as where otherwise identified below, the facts viewed in the
light most favorable to plaintiff may be summarized as
follows: plaintiff alleges that he has struggled, and
continues to struggle, with treatment of his high blood
pressure while incarcerated in North Carolina under North
Carolina Department of Public Safety's custody.
(See Am. Compl. ¶ 3). In January of 2010,
plaintiff alleges that his unstable history of high blood
pressure contributed to his diagnosis of renal failure.
(See id. ¶ 4). After his diagnosis, at Scotland
Prison, plaintiff alleges he was treated by various doctors,
some of whom were reluctant to prescribe him medication or
treatment for his high blood pressure and kidney condition.
(See id. ¶ 6).
2014, plaintiff alleges he was transferred to Central Prison
for permanent dialysis treatment. (See id. ¶
7). Plaintiff alleges his “medical condition stayed the
same” despite the dialysis treatment, and his kidney
doctor at Central Prison, defendant McKenzie, had a difficult
time diagnosing his symptoms. (Id. ¶ 8).
Plaintiff alleges defendant McKenzie then scheduled an
appointment with a heart specialist for plaintiff. (See i
d .). In June 2015, plaintiff allegedly had heart
surgery, and his symptoms, related to his high blood
pressure, continued and he started experiencing stomach pain
and pain in his dialysis arm. (See i d . ¶ 9).
In response, defendant McKenzie allegedly would not prescribe
him anything another than ibuprofen for the pain and told him
that if he wanted other pain medication, it would need to be
approved by the Medical Director or Medical Utilization
Review Board. (See id. ¶ 9). Further, plaintiff
alleges that “dialysis patients can not be given
ibuprofen for some reason.” (Id. ¶ 19).
September 2015, plaintiff then alleges he was placed in
administrative segregation and had a difficult time accessing
his blood pressure medication. (See id. ¶ 10).
He alleges that he did not receive it for five days straight
from October 6, 2015 to October 10, 2015. (Id.). As
a result of this, and his inability to receive a renal diet,
on October 15, 2015, plaintiff alleges he passed out and was
transported to urgent care. (See id. ¶ 11).
While at urgent care, plaintiff alleges he was physically
assaulted by four prison officials, including defendant
Rivers. (See id.). He alleges that, “[b]oth my
lips were busted [and] I receive no medical
assistance.” (Id.). Then, plaintiff was
admitted to the hospital, and alleges he was not provided
“clean clothing, clean bedsheets, no writing papers to
write down the incident, ” and that, “the shower
was too cold for Dialysis patients and I had no recreation
time, my clothes were stained with blood.”
(Id. ¶ 12). When plaintiff complained at the
conditions, defendant Metiko allegedly stated to him,
“[y]ou going to die right in that room.”
(Id. ¶ 13). Plaintiff filed an official
grievance on November 27, 2015, related to the incident,
naming defendant Metiko, and further complaining that the
light in his room was always on, which disrupted his sleep
schedule, the food he was being served was not
“regular, ” his shower water was too cold, his
feet were numb, and he was not receiving an hour of
recreation time. (See Couch Aff. (DE 52) Ex. F, at
result of his medical treatment, plaintiff allegedly has lost
the use of both of his kidneys and receives permanent
dialysis treatments, which requires him to be “stuck to
a machine for three and a half hours sitting on a not too
comfortable chair with two long needles stuck in my
arm.” (Am. Compl. ¶ 21). Further, on May 13, 2016,
plaintiff also alleges that defendant Reid, a nurse at
Central Prison, injured him when she improperly inserted a
needle in his arm for a dialysis treatment. (See id.
¶ 17). As a result, plaintiff alleges his dialysis
treatment was cut short on that day. (Id.).
Motion for Counsel
is no constitutional right to counsel in civil cases and
courts should exercise their discretion to appoint counsel
for pro se civil litigants “only in exceptional
cases.” Cook v. Bounds, 518 F.2d 779, 780 (4th
Cir. 1975). Exceptional circumstances depend upon “the
type and complexity of the case, and the abilities of the
individuals bringing it.” Whisenant v. Yuam,
739 F.2d 160, 163 (4th Cir. 1984), abrogated on other
grounds by Mallard v. U.S. Dist. Court for the S. Dist. of
Iowa, 490 U.S. 296 (1989) (quoting Branch v.
Cole, 686 F.2d 264, 266 (5th Cir. 1982)).
does not present exceptional circumstances which merit the
appointment of counsel. Plaintiff claims a need for counsel
because he does not speak English and has limited access to
legal research resources. However, plaintiff has demonstrated
through the detail of his filings that he is capable of
proceeding pro se. ...