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Ortiz v. Solomon

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

January 22, 2018

ANTONIO M. ORTIZ, Plaintiff,



         This 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);[2] 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.


         Plaintiff 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.

         On 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.

         On 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).


         Except 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).

         In June 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).

         On 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 26).

         As a 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.).


         A. Motion for Counsel

         There 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)).

         Plaintiff 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. ...

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