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Johnson v. North Carolina Department of Public Safety

United States District Court, W.D. North Carolina, Charlotte Division

July 27, 2018




         THIS 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).


         Plaintiff 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.

         (1)Amended Complaint (Doc. No. 8)

         Plaintiff 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.

         With 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.

         Finally, 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 15).

         (2) Defendants' Motions to Dismiss and for Summary Judgment

         (Doc. 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.

         Defendants 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.

         (3) Plaintiff's Responses[1] (Doc. Nos. 46, 54)

         Plaintiff 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.

         Plaintiff 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.”[2] 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.

         (4)Defendant D'Amico's Reply (Doc. No. 56)

         In his 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 incorrect.


         (A) Offender Information Screen (Doc. No. 37-1)

         The 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.

         (B) Defendant Uhren's Affidavit (Doc. No. 37)

         Of the 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.

         (C) Defendant D'Amico's Affidavit (Doc. No. 47-1)

         Of the 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).

         (D) Kimberly Grande Affidavit (Doc No. 38)

         Kimberly 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)

         Plaintiff submitted at least two other grievances during that time period, but there were no other appeals from him. (Doc. No. 38 at 3).

         (E) Grievances


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 ...

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