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Oliver v. Daniels

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

March 26, 2018

ISAAC H. OLIVER, Plaintiff,
v.
FAYE DANIELS, Superintendent; LAUREN HARRELL, Asst. Superintendent of Programs; DR. RICHARD O. BROADWELL, III; and ALICE MUSSARI, Supervising Nurse, [1] Defendants.

          ORDER

          LOUISE W. FLANAGAN United States District Judge.

         This matter is before the court on defendant Richard O. Broadwell, III's (“Broadwell”) motion to dismiss for failure to state a claim (DE 32), and plaintiff's motion for discovery (DE 45). The issues raised have been fully briefed and are ripe for adjudication. For the following reasons, the court grants in part and denies in part defendant's motion and denies plaintiff's motion as moot.

         STATEMENT OF THE CASE

         On May 2, 2016, plaintiff, a state prisoner filed this civil rights action pro se pursuant to 42 U.S.C. § 1983, asserting claims for deliberate indifference to medical needs and cruel and unusual punishment related to severe back and hip pain plaintiff experienced from July 2013 to July 2016. (DE 1 at 5). On December 22, 2016, the court granted plaintiff's motion to amend complaint, which plaintiff filed on January 3, 2017. On January 26, 2017, the court conducted a frivolity review of the complaint under 28 U.S.C. § 1915, allowing plaintiff's claims to proceed.

         On May 17, 2017, defendant Broadwell filed the instant motion to dismiss, to which plaintiff responded on June 12, 2017, to which defendant replied on June 16, 2017. Also during this time, the court vacated its May 25, 2017 initial scheduling order, pending resolution of defendant Broadwell's motion to dismiss. Finally, plaintiff filed the instant motion for discovery on January 24, 2018, to which defendant Broadwell replied on January 31, 2018.

         STATEMENT OF THE FACTS

         The relevant facts alleged in the complaint are as follows. In July 2013, plaintiff discovered a bulge in his “lower back and hip.” (Amended Complaint (DE 17) at 4).[2] Plaintiff submitted a sick call appointment request complaining of “severe back and hip pain.” (Id.). Plaintiff a week later was “called to medical and screened by a nurse” who examined the bulge and said that she would “refer the matter to Dr. Broadwell for further examination.” (Id.).

         Plaintiff was examined by defendant Broadwell in August 2013 “for my complaints of severe back and hip pain.” (Id. at 4). During the physical examination, defendant Broadwell “asked me several questions about my injury and level of pain I was experiencing[, ]” and “examined me by hand in my lower back and hip area and discovered a huge bulge on my lower back and hip area.” (Id.). Defendant Broadwell ordered that an x-ray “be conducted” of plaintiff's back and hip. (Id.). Plaintiff “was told that I suffered from degenerative disc and soft tissue calcification on my lower back and hip area.” (Id. at 4-5). Plaintiff also was “told that the calcification build up could be pressing against my sciatic nerve.” (Id. at 5).

         Additionally, on August 20, 2013, defendant Broadwell prescribed a non-steroidal anti-inflammatory medication for plaintiff's pain complaints. (Id.). Plaintiff continued to complain of pain, and on September 9, 2013, plaintiff “could not get of my bed” and declared a medical emergency. (Id.). He was taken to the medical clinic on a stretcher, examined, and transported to East Carolina Medical Center in New Bern. (Id.).

         Plaintiff“was asked several questions about my injury and my pain” and that he “explained to the Doctor what I had been experiencing in detail.” (Id.). Plaintiff alleges that the doctor at East Carolina Medical Center recommended an MRI, but “did not have the authority to administer one for me.” (Id.).[3] Plaintiff was given a “shot in my him and some tylenol.” (Id.).

         On November 1, 2013, plaintiff submitted a sick call appointment request and, a week later, defendant Broadwell prescribed a muscle relaxer to treat plaintiff's complaints which plaintiff alleges had been previously prescribed to him but had proven ineffective. (Id. at 6). Plaintiff took the medication for a week but it did not relieve his pain. (Id.). Four months later, in March 2014, plaintiff submitted a sick call appointment request and was screened by a nurse a week latter. (Id.). Plaintiff alleges that during these four months plaintiff was in pain, nothing was prescribed for him, and he had not been screened for the sick call appointment request submitted in November. (Id.). During the screening, the nurse asked plaintiff “several questions about my injury and how much pain I was experiencing, ” and told him she would relay plaintiff's concerns to defendant Broadwell. (Id. at 6-7). Plaintiff states that he was seen again by the same nurse on July 21, 2014, who again indicated that his chart would be placed in front of defendant Broadwell. (Id. at 7).

         On July 28, 2014, defendant Broadwell prescribed a tricyclic antidepressant medication, to treat plaintiff's pain complaints. (Id. at 8). After taking this medication for two days, plaintiff “began to hallucinate and have night sweats.” (Id.). Plaintiff states that, because of the alleged side effects, he refused to take the prescribed medication and requested that it be discontinued. (Id.).

         Defendant Broadwell again examined plaintiff on August 27, 2014. (Id. at 9). Defendant Broadwell referred plaintiff to a podiatrist for specialist care, but the North Carolina Department of Prison System's utilization reviewer denied defendant Broadwell's request. (Id. at 10). Plaintiff states that defendant Broadwell appealed the utilization reviewer's decision, but that defendant Broadwell's appeal was also denied by the utilization reviewer. (Id.).[4]

         In April 2015, plaintiff started experiencing numb hands. (Id. at 11). In May 2015, plaintiff was assessed by a nurse for numbness in his hands and told that his chart would be referred to defendant Broadwell for review. (Id.). Plaintiff was assessed by the same nurse on or about July 10, 2015 and August 4, 2015, in response to additional sick call appointment requests submitted by plaintiff for numb hands. (Id. at 12). Plaintiff was examined by defendant Broadwell on or about August 12, 2015, and that, as a result of the examination, defendant Broadwell referred plaintiff for assessment by a neurologist. (Id. at 13). That referral was also denied by the utilization board, which defendant Broadwell appealed, which was also denied. (Id. at 14).

         On October 20, 2015, plaintiff fell to ground due to his back and hip pain and declared a medical emergency. (Id. at 13-14). Plaintiff was taken to the medical unit where plaintiff was assessed by a nurse who contacted defendant Broadwell. (Id. at 14). Defendant Broadwell instructed the nurse to administer a shot in Plaintiff's hip, which “relieved my pain to some degree because I was soon able to stand and walk with only minimal pain.” (Id.). Defendant Broadwell prescribed a muscle relaxer, provided plaintiff with a wheelchair for five days, and transferred plaintiff to a cell for disabled inmates. (Id.).[5]

         On January 12, 2016, Plaintiff was taken to UNC Hospitals to have “electrophsyology tests conducted on my hands and upper extremities to determine why my hands had become numb, ” which were ordered by defendant Broadwell. (Id. at 14-15). After the tests were conducted, plaintiff asked the doctor why his back had not been examined and the doctor stated that defendant “Broadwell had not mentioned [plaintiff's] back pain.” (Id. at 15). Plaintiff received the results of the tests on January 20, 2016, ...


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