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Fox v. Haynes

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

February 14, 2019

DUANE L. FOX,[1] Plaintiff,
GREGORY HAYNES, et al., Defendants.


          Frank D. Whitney Chief United States District Judge

         THIS 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).

         I. BACKGROUND

         Pro 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.

         Construing 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).

         Psychologist 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[2] 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.

         Defendants 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.

         Plaintiff's 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 13-14)

         Plaintiff 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.


         Because 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)).

         A pro 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.


         “Prisoners 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 ...

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