United States District Court, E.D. North Carolina, Western Division
W. FLANAGAN, United States District Judge
matter comes before the court on defendant's motion to
dismiss for failure to state a claim pursuant to Federal
Rules of Civil Procedure 12(b)(1), (6) (DE 67), which the
court construes as a motion for summary judgment pursuant to
Rule 56(a). Also before the court are the following motions:
1) defendants' motion for reconsideration and to strike
plaintiff's jury trial demands (DE 54), 2)
plaintiff's motion to stay (DE 56), 3) plaintiff's
motion to appoint counsel (DE 59), plaintiff's motion for
summary judgment (DE 72), and 4) plaintiff's motion for
entry of default (DE 74). The issues raised are ripe for
ruling. For the following reasons, the court grants
defendants' motion for summary judgment and denies the
OF THE CASE
31, 2015, plaintiff, a federal prisoner, filed the instant
action pro se and contemporaneously filed a motion for leave
to proceed without the prepayment of the filing fee. On
August 24, 2015, United States Magistrate Judge Robert B.
Jones, Jr., granted plaintiff's motion for leave to
proceed without the prepayment of the filing fee. On January
29, 2016, plaintiff subsequently filed a motion to appoint
counsel, motion to compel, and motion for leave to proceed in
forma pauperis. On February 9, 2016, the court denied
plaintiff's motion to appoint counsel and denied
plaintiff's motion to compel as premature. The court
additionally denied as moot plaintiff's motion to proceed
in forma pauperis in light of the magistrate judge's
August 24, 2015, order. Finally, the court directed plaintiff
to provide clarification as to whether he sought to bring his
action pursuant to the Federal Torts Claim Act
(“FTCA”), 28 U.S.C. § 2672, et seq.,
Bivens v. Six Unknown Names Agents of Federal Bureau of
Narcotics, 403 U.S. 388 (1971), or both.
February 25, 2016, plaintiff filed a particularized complaint
and stated an intent to pursue his action against defendant
pursuant to the FTCA only. In his particularized complaint,
plaintiff brought four claims: (1) a medical negligence
claim; (2) a claim that he was denied food service at
“mainline”; (3) a claim related to
plaintiff's placement into a specialized housing unit
(“SHU”); and (4) a claim of access to a law
library. (See Am. Compl. 5-6). The court allowed
plaintiff to proceed with his FTCA action against defendant
on April 6, 2016. Accordingly, all other previously-named
defendants were dismissed from this action.
13, 2016, defendant filed a motion to dismiss pursuant to
Federal Rule of Civil Procedure 12(b)(6) arguing that
plaintiff failed to state a claim upon which relief may be
granted regarding his medical negligence claim. On November
21, 2016, the court provided the parties notice of its intent
to construe defendant's motion to dismiss as a motion for
summary judgment, and provided the parties an opportunity to
respond. Plaintiff subsequently filed a response in
opposition and various other motions, for a jury trial, to
stay his jury demand, and for status.
February 16, 2017, the court granted defendant's motion
for summary judgment as to his medical negligence claims. In
the order, the court dismissed plaintiff's FTCA action
related to his medical negligence claims and set a new
deadline of April 3, 2017, for dispositive motions to address
plaintiff's three other remaining claims. The court also
granted plaintiff's motion for a jury trial. On February
27, 2017, plaintiff filed a motion for extension of time,
which the court granted on March 30, 2017, extending the
deadline to file dispositive motions to August 15, 2017.
March 30, 2017, defendant filed the instant motion for
reconsideration of plaintiff's jury trial demand and
motion to strike plaintiff's jury trial demand. On April
5, 2017, plaintiff filed the instant motion to stay on the
basis that he was in protective custody and awaiting transfer
to another incarceration facility. On April 25, 2017,
defendant responded in opposition. On May 8, 2017, plaintiff
filed the instant motion to appoint counsel because of his
restrictive control status. On May 25, 2017, defendant
responded in opposition.
August 15, 2017, defendant filed the instant motion to
dismiss pursuant to Federal Rules of Civil Procedure
12(b)(1), (6) for failure to state a claim upon which relief
may be granted. In support of their motion, defendants attach
the declaration of Christina Kelley, providing
plaintiff's administrative grievance history.
(See Kelley Decl. (DE 69), Attach. 1, 2). On
February 2, 2018, the court provided the parties notice of
its intent to construe the United States' motion to
dismiss as a motion for summary judgment, and provided the
parties an opportunity to respond. The clerk of court issued
a Rule 56 letter in compliance with Roseboro v.
Garrison, 528 F.2d 309, 310 (4th Cir. 1975). On February
23, 2018, defendants provided additional materials to support
their motion, including: a declaration by Robin Hunter-Buskey
(“Hunter-Buskey”) (DE 79-1), the clinical
encounter log from November 26, 2013 (DE 79-2), and the
November 26, 2013, incident report (DE 79-3). On March 13,
2018, plaintiff filed a reply addressing defendant's
meantime, on September 5, 2017, plaintiff filed the instant
motion for summary judgment pursuant to Federal Rule of Civil
Procedure Rule 56, and defendants timely responded in
opposition. On December 18, 2017, plaintiff filed the instant
motion for entry of default on the basis that defendants did
not respond to his motion for summary judgment. On December
19, 2017, defendants responded in opposition.
as where otherwise identified below, the facts viewed in the
light most favorable to plaintiff may be summarized as
follows. On November 25, 2013, plaintiff reported to Health
Services for a “call out” to address his
illnesses, including pain of his back, hip, elbow, ankle, and
leg, as well as vision issues, a lump in his scrotum, and
hypertension. (See Pl.'s Aff. (DE 69-1) 3). Due
to the uncomfortable chairs in the waiting area, plaintiff
sat on the floor. (See id.). While he was waiting,
plaintiff alleges that Hunter-Buskey, a physician's
assistant at Health Services, told others in the waiting area
to leave, however, plaintiff was one of four names who
Hunter-Buskey requested to stay. (See id.). A few
minutes later, Hunter-Buskey came back into the waiting area
told plaintiff to return to his housing unit. (See
id.). Hunter-Buskey states that there was an institution
recall before plaintiff's 12:30 appointment, and that he
refused to leave without receiving an evaluation.
(See Hunter-Buskey Decl. (DE 79-1) 3).
was unable to get up from the floor due and required medical
assistance, three staff members, to help him up.
(See Pl.'s Aff. (DE 69-1) 4). Plaintiff alleges
he lost his balance because he was lifted up too quickly.
(See id.). Plaintiff made it about 50-70 feet
outside Health Services before he lost control of his left
leg and felt pain in his hip and back. (See id.). He
was carried back to Health Services for treatment. (See
id .). Hunter-Buskey states that prior to her direct
observation, plaintiff moved on his own without difficulty,
but that “[o]nce he was aware that he [was] under my
direct observation, he moved in a much slower manner, and
walked with a limp and maintained a rigid posture.”
(See Hunter-Buskey Decl. (DE 79-1) 3).
plaintiff was in the treatment area, plaintiff alleges that
he was verbally berated by Mr. Henry, the assistant Health
Services administrator, and Mr. Henry said to him, “Who
the f*** do you think you are? Are you trying to make me look
bad? Well, it's not going to be Percy Tucker's way,
it's going to be my way! Do you understand me? Look at me
when I am talking to you! You don't deserve anything! And
you are going to spend Thanksgiving in the SHU! ”
(See Pl.'s Aff . (DE 69-1) 4). Plaintiff states
that his Federal Bureau of Prisons record will show that his
leg condition is a result of an attack by “Inmate
Rice” at Brooklyn MDC in February 2013, and relates to
his back condition. (See id.). Plaintiff also states
that he had not been seen by a doctor upon his transfer to
“FCI-2.” (See id.).
this alleged incident, the medical team returned to the
treatment room, and plaintiff received medical treatment.
(See id. 5). Hunter-Buskey gave plaintiff a physical
exam. (See Hunter-Buskey Decl. (DE 79-1) 4).
Hunter-Buskey put plaintiff in a wheelchair after his exam.
(See Pl.'s Aff. (DE 69-1) 5). Hunter-Buskey
wheeled plaintiff into the waiting room area and then went to
speak with someone in the treatment area. (See id.).
Plaintiff states that the person she was speaking with, who
is not identified by plaintiff, was talking to her about
housing him in the SHU. (See id.). Plaintiff states
that his medical records show that Hunter-Buskey ordered an
injection in November 2013. (See id.; see
also (DE 79-2) 2).
Hunter-Buskey returned, she told plaintiff about the
conversation she had and plaintiff informed her that he was
having issues with his bladder. (See Pl.'s Aff.
(DE 69-1) 5). In response, Hunter-Buskey told plaintiff she
would get him protective pads. (See id.).
Thereafter, Hunter-Buskey left and another person, who
plaintiff does not identify, then gave him the protective
pads he requested. (See id. 6). On his way out from
treatment, plaintiff was stopped by Mr. Henry, who plaintiff
believes was hiding. (See id.). Mr. Henry told him
he could not take his wheelchair with him out of the waiting
area. (See id.). Plaintiff lifted himself up to
leave and started walking back to his housing unit. (See
id.). Plaintiff alleges Mr. Henry followed plaintiff and
verbally assaulted him. (See id.). Plaintiff told
Mr. Henry that he could not speak to him “in that
way” and then Mr. Henry called for plaintiff to be
taken to the SHU. (See id.). Plaintiff was let out
of the SHU one hour later. (See id.). Later in the
day, plaintiff ...