United States District Court, E.D. North Carolina, Western Division
ISAAC H. OLIVER, Plaintiff,
FAYE DANIELS, Superintendent; LAUREN HARRELL, Asst. Superintendent of Programs; DR. RICHARD O. BROADWELL, III; and ALICE MUSSARI, Supervising Nurse,  Defendants.
W. FLANAGAN United States District Judge.
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
OF THE CASE
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.
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.
OF THE FACTS
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
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.).
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).
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.).
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.). Plaintiff was
given a “shot in my him and some tylenol.”
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).
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.
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
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).
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
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, ...