United States District Court, W.D. North Carolina, Charlotte Division
D. WHITNEY CHIEF UNITED STATES DISTRICT JUDGE
MATTER comes before the Court on Motions filed by
Defendants Robert J. Uhren, M.D., and Keith D'Amico,
P.A., to Dismiss State Law Claims and for Summary Judgment
Limited to Failure to Exhaust Administrative Remedies, (Doc.
Nos. 36, 47). Also pending are Plaintiff's Motions to
Compel Attendance of a Confined Witness, (Doc. No. 48), and
to Subpoena Evidence, (Doc. Nos. 49, 57), and Defendant
Uhren's Motion to Extend the Time for Filing Dispositive
Motions, (Doc. No. 51).
filed pro se Complaint on August 1, 2016, (Doc. No.
1), and an Amended Complaint on December 29, 2016, (Doc. No.
8). The Amended Complaint passed initial review on claims of
deliberate indifference to Plaintiff's serious medical
need, Hepatitis-C infection, under 42 U.S.C. § 1983, the
Americans with Disabilities Act, the Rehabilitation Act, and
the Court exercised pendent jurisdiction over Plaintiff's
North Carolina claims. (Doc. No. 18). The remaining
Defendants are James Duckworth, Bret Bullis, Chad Green,
David W. Guice, Robert Uhren, Frank L. Perry, Keith
D'Amico, FNU Penland, Paula Y. Smith, FJU Stroupe, FNU
Remfro, Cindy Haynes, Carolyn Buchanan, James Vaughn, Sandra
Pittman, Norma Melton, Mike Slagle, and Mike Ball.
Complaint (Doc. No. 8)
argues that Defendants were deliberately indifferent to his
life-threatening and painful Hepatitis-C condition by
refusing breakthrough drug therapy that is the community
medical standard of care, for non-medical reasons. He alleges
that Defendants have jointly enforced the Health Service
policy and procedure that contravenes clearly established
Hepatitis-C professional medical community standard of care.
Health Services policy and procedure requires Hepatitis-C
positive inmates to develop serious and permanent health
complications before breakthrough drugs are provided. While
waiting for medical care, Plaintiff's health has
significantly deteriorated and he now suffers from liver
failure. (Doc. No. 8 at 26). He also alleged that Defendants
were deliberately indifferent by enacting and enforcing
policies and procedures that have delayed needed treatment
based on non-medical reasons and are purposefully required
Plaintiff suffer severe health complications before providing
treatment to cure his Hepatitis-C infection.
regards to the ADA and RA discrimination, Plaintiff claims
that Defendants discriminated against him, caused him to be
denied access to services and programs in the North Carolina
prison system, including access to federally-funded programs,
that are available to non-Hepatitis-C infected North Carolina
prison system inmates. Further, Plaintiff may serve a longer
prison sentence because he is being denied gain-time that is
available to other inmates.
Plaintiff seeks relief under North Carolina Constitution
Article 1, Section 27, which prohibits cruel and unusual
punishment, and Article 1, Sections 1, 2, 3, and Article 4,
Section 13(1), which provide legal remedies. (Doc. No. 8 at
Defendants' Motions to Dismiss and for Summary
Nos. 36, 47) Defendants Uhren and D'Amico argue that
Plaintiff has asserted North Carolina medical negligence
claims that must be dismissed because he has failed to comply
with North Carolina General Statutes § 1A-1, and Rule
9(j) of the North Carolina Rules of Civil Procedure.
seek summary judgment because Plaintiff failed to exhaust
administrative remedies before commencing this action. None
of the seven exhausted administrative appeals that Plaintiff
completed between that date and the date the Complaint was
filed assert the claims against Defendants Uhren and
D'Amico that Plaintiff makes against him in the Complaint
and Amended Complaint. Uhren and D'Amico argue that the
only two grievances that fairly present the allegations
against them, grievance numbers 2699 and 3044, were not
completed before Plaintiff filed his Complaint and thus
failed to exhaust his claims. Seven grievance procedures that
Plaintiff completed during the relevant time demonstrate that
the administrative remedy procedure was available to him.
Plaintiff's Responses (Doc. Nos. 46,
filed an “Affidavit of Facts with Exhibits, ”
(Doc. No. 46), that appears to be a Response to Defendant
Uhren's Motion, in which he states that he will be
seeking default judgment and that Defendant Uhren's
motion should be denied. He attaches an unverified
“Affidavit, ” a narrative discussing his medical
history, and various medical records and pleadings.
filed a “Motion to Dismiss NC State Rule 9(j) Against
Plaintiff, ” (Doc. No. 54), in which he argues that
Defendant D'Amico's defense does not apply to the
instant case, but rather, to a case before the North Carolina
Industrial Commission that was “voluntarily
withdrawn.” He argues that Rule 9(j) does not apply to
this case, and therefore, it should be rendered an invalid
defense and the Defendants' Motions should be denied.
D'Amico's Reply (Doc. No. 56)
Reply, Defendant D'Amico notes that Plaintiff has failed
to respond to the Motion for Summary Judgment addressing the
exhaustion of administrative remedies and argues that
Plaintiff's allegation that Rule 9(j) does not apply is
Offender Information Screen (Doc. No. 37-1)
OPUS Online Offender Information Screen reveals that
Plaintiff was at Avery-Mitchell C.I from March 29, 2011
through June 12, 2012; October 11, 2012 through November 19,
2013; and December 3, 2013 through March 22, 2016. He was at
Mountain View C.I. on March 22, 2016 through July 20, 2017,
and July 27, 2017, through January 1, 2018.
Defendant Uhren's Affidavit (Doc. No.
facilities listed on Plaintiff's inmate movement record,
Defendant Uhren only treated him, if at all, at Mountain View
C.I. and Avery-Mitchell C.I. He did not treat him at Craggy
C.I. in 2009, 2010, or 2012.
Defendant D'Amico's Affidavit (Doc.
facilities listed on Plaintiff's movement record,
Defendant D'Amico only treated inmates at Mountain View
and Avery-Mitchell C.I.s. While he currently provides certain
care at Craggy C.I., he did not do so in 2009-2010 and 2012.
(Doc. No. 47-1 at 1).
Kimberly Grande Affidavit (Doc No. 38)
Grande, the Executive Director of the N.C. Inmate Grievance
Resolution Board in Raleigh, Reviewed Plaintiffs Board of
Grievance Appeals records from March 29, 2011, through August
3, 2016. The Board received seven Step-3 appeals from
Plaintiff in that period:
• 2/3/12, Grievance Number 4680-W-12-0022; Board order
issued 3/9/12 (Doc. No. 38-2)
• 4/10/12, Grievance Number 4680-Y-12-0036, Board order
issued 4/27/12 (Doc. No. 38- 3)
• 11/19/14, Grievance Number 4680-Y-14-0139, Board order
issued 1/14/15 (Doc. No. 38- 4)
• 12/29/14, Grievance Number 4680-Y-14-0152, Board order
issued 3/2/15 (Doc. No. 38- 5)
• 10/26/15, Grievance Number 4680-W-15-0118, Board order
issued 12/11/5 (Doc. No. 38-6)
• 1/11/16, Grievance Number 4680-2016-WBC-00012, Board
order issued 2/24/16 (Doc. No. 38-7)
• 2/12/16, Grievance Number 4680-2016-WBC-00091, Board
order issued 3/29/16 (Doc. No. 38-8)
submitted at least two other grievances during that time
period, but there were no other appeals from him. (Doc. No.
38 at 3).
2/3/12 Administrative Remedy Procedure (Doc. No. 38-2)
Officer Pritchard ignores policies and procedures and has
subjected Plaintiff to harassment and intimidation; alleged
hostility and threats to place Plaintiff in segregation on
2/3/12 during a cell search
2/7/12 Step-1 Response (Doc. No. 38-2 at 6)
An investigation found no information to support the
allegations against Officer Pritchard
2/18/12 Step-2 Response (Doc. No. 38-2 at 6)
Staff adequately responded to the complaint 3/9/12 Step-3
Response (Doc. No. 38-2 at 7) Grievance is dismissed for lack
of supporting evidence
4/10/12 Administrative Remedy Procedure (Doc. No. 38-3 at 2)
Plaintiff cannot get a job because of medical restrictions
placed on him; he has no idea why the restrictions are in
place; requesting that the restrictions be ...