United States District Court, W.D. North Carolina, Charlotte Division
DUANE L. FOX, Plaintiff,
GREGORY HAYNES, et al., Defendants.
D. Whitney Chief United States District Judge
MATTER is before the Court on initial review of
Plaintiff's Complaint, (Doc. No. 1). Plaintiff is
proceeding in forma pauperis, (Doc. No. 8).
Plaintiff has filed a Motion to Appoint Counsel, (Doc. No.
3), and a Motion for Preliminary Injunction and Protective
Order, (Doc. No. 4).
se Plaintiff filed the verified Complaint pursuant to 42
U.S.C. § 1983 while incarcerated at the Lanesboro
Correctional Institution. She names as Defendants: Dr.
Gregory Haynes, Psychologist Judd, North Carolina Department
of Public Safety (“NDCPS”) Director Kenneth E.
Lassiter, NCDPS Executive Director Kimberly D. Grand,
Regional Nurse Sherri Copple, and NCDPS Interim Chief Deputy
Secretary Reuben Young.
the Complaint liberally and accepting the allegations as
true, Plaintiff had surgery for a bone spur on the left heel
around December 22, 2017. Utilization Review
(“UR”) approved physical therapy following the
surgery in June or July 2018. After a few months, Plaintiff
asked “medical” why no physical therapy had been
provided and Plaintiff was told that “no facility will
accept her.” (Doc. No. 1 at 14). Plaintiff filed
request forms and a grievance and was told that she would be
transferred when a bed is found. Plaintiff filled out several
sick-call forms over the course of three weeks explaining
that the right foot, which also needed surgery, was going
numb. Dr. Haynes disregarded Plaintiff's need for
physical therapy. Plaintiff was told by the “foot
doctor at Central Prison” that she cannot have surgery
on the right foot until having therapy on the left foot and
is able to walk without a medical boot. (Doc. No. 1 at 15).
Judd has disregarded Plaintiff's mental health issues.
Plaintiff is “Level III mental health with serious
mental health diagnosis” who was at an inpatient unit
at Central Prison shortly after coming to Lanesboro. (Doc.
No. 1 at 8, 15). Mental health felt that Plaintiff needed
Therapeutic Control (“TDU”), a status that
recognizes the need for security as well as mental illness
treatment, after Plaintiff went on ICON status around
June 4. (Doc. No. 1 at 15). The conditions of confinement and
control status can be altered using established procedures
outlined in this policy and developed and adopted by the
facility's inpatient/mental health services. Housing
assignment for inmates assigned to ICON, where it has been
determined by mental health staff that there is a need for
residential mental health housing, as the inmate cannot be
treated on an outpatient basis, will be provided by transfer
to a residential facility designated to provide those
services. Inmates assigned to ICON who have been diagnosed
with mental illness are evaluated by mental health staff to
determine if they meet the requirements for TDU. If so,
mental health staff at a facility designated for TDU will be
contacted and, if TDU staff agrees, the inmate will be
transferred as soon as possible. If there is a disagreement
about the appropriateness of a case for TDU the Director of
Mental Health Services makes the final decision. Now
Plaintiff has been recommended for another 180 days on ICON
and still has not been sent to a prison with the TDU program.
Lassiter, Grand, Copple, and Young were made aware on October
14, 2018 that mental health felt Plaintiff needed TDU and TDU
was being denied but ignored these issues.
medical need is serious as it has been diagnosed by a
physician as mandating treatment. Plaintiff filled out
request forms, grievances, and wrote letters to officials so
they had knowledge of the need. Once the officials knew about
Plaintiff's serious medical need, treatment should have
been provided. Plaintiff repeatedly asked for medical care
and received none, “then suffered a serious
injury.” (Doc. No. 1 at 13). The delay in treatment was
medically unjustified and “clearly likely to make
[Plaintiff's] medical problem worse or result in a
lifelong handicap or permanent loss.” (Doc. No. 1 at
seeks declaratory judgment, preliminary and permanent
injunctive relief, compensatory and punitive damages, a jury
trial, costs, and any additional relief that the Court deems
just, proper, and equitable.
SCREENING STANDARD OF REVIEW
Plaintiff is a prisoner proceeding in forma pauperis, the
Court must review the Complaint to determine whether it is
subject to dismissal on the grounds that it is “(i)
frivolous or malicious; (ii) fails to state a claim on which
relief may be granted; or (iii) seeks monetary relief against
a defendant who is immune from such relief.” 28 U.S.C.
§ 1915(e)(2)(B). In its frivolity review, a court must
determine whether the Complaint raises an indisputably
meritless legal theory or is founded upon clearly baseless
factual contentions, such as fantastic or delusional
scenarios. Neitzke v. Williams, 490 U.S. 319, 327-28
(1989). A complaint should not be dismissed for failure to
state a claim “unless ‘after accepting all
well-pleaded allegations in the plaintiff's complaint as
true and drawing all reasonable factual inferences from those
facts in the plaintiff's favor, it appears certain that
the plaintiff cannot prove any set of facts in support of his
claim entitling him to relief.'” Veney v.
Wyche, 293 F.3d 726, 730 (4th Cir. 2002)
(quoting Edwards v. City of Goldsboro, 178 F.3d 231,
244 (4th Cir. 1999)).
se complaint must be construed liberally. Haines v.
Kerner, 404 U.S. 519, 520 (1972); see also Smith v.
Smith, 589 F.3d 736, 738 (4th Cir. 2009)
(“Liberal construction of the pleadings is particularly
appropriate where … there is a pro se complaint
raising civil rights issues.”). However, the liberal
construction requirement will not permit a district court to
ignore a clear failure to allege facts in his complaint which
set forth a claim that is cognizable under federal law.
Weller v. Dep't of Soc. Servs., 901 F.2d 387
(4th Cir. 1990). A pro se complaint must still
contain sufficient facts “to raise a right to relief
above the speculative level” and “state a claim
to relief that is plausible on its face.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007); see
Ashcroft v. Iqbal, 556 U.S. 662 (2009) (the
Twombly plausibility standard applies to all federal
civil complaints including those filed under § 1983).
This “plausibility standard requires a plaintiff to
demonstrate more than a sheer possibility that a defendant
has acted unlawfully.” Francis v. Giacomelli,
588 F.3d 186, 193 (4th Cir. 2009) (internal
quotation marks omitted). He must articulate facts that, when
accepted as true, demonstrate he has stated a claim entitling
him to relief. Id.
alleging that they have been subjected to unconstitutional
conditions of confinement must satisfy the Supreme
Court's two-pronged test set forth in Farmer v.
Brennan[, 511 U.S. 825 (1994)].” Scinto v.
Stansberry, 841 F.3d 219, 225 (4th Cir.
2016). First, “Farmer's objective prong requires
plaintiffs to demonstrate that ‘the deprivation alleged
[was], objectively, sufficiently serious.'”
Scinto, 841 F.3d at 225. In order to be sufficiently
serious, the deprivation must pose “a serious or
significant physical or emotional injury resulting from the
challenged conditions, ” or “a substantial risk
of such ...