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Bartlett v. Smith

United States District Court, E.D. North Carolina, Western Division

March 5, 2019

ROBERT ANDREW BARTLETT, SR., Plaintiff,
v.
PAULA SMITH, BRAD PERRITT, LARRY THOMPSON, JAMESE SMITH, DIEDRE HARRELSON, PATSY CHAVIS, and NURSE PALMER Defendants.

          ORDER

          LOUISE W. FLANAGAN UNITED STATES DISTRICT JUDGE.

         Plaintiff, a state inmate proceeding pro se, filed this action under 42 U.S.C. § 1983 and the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101, et seq. He also seeks relief under Bumgarner v. North Carolina Department of Correction, No. 5:10-CT-3166-BO (E.D. N.C. Aug. 15, 2013.). The matter is before the court for frivolity review pursuant to 28 U.S.C. § 1915. Also before the court is plaintiff's motion for preliminary injunction (DE 8).

         BACKGROUND

         Plaintiff is incarcerated at Tabor Correctional Institution. In September, 2015, defendant Nurse Palmer allegedly refused to treat internal bleeding in plaintiff's leg. Following several weeks of non-treatment, x-rays revealed plaintiff shattered his tibia. Plaintiff eventually underwent surgery on his leg. The delay in plaintiff's treatment was due, in part, to defendant Jamese Smith's retaliation against plaintiff. Smith retaliated against plaintiff “because of [plaintiff's] First Amendment activities.” (Compl. (DE 1) 6-7). In addition, prison officials fired plaintiff from his prison job after he suffered this injury, and transferred him to an unsanitary cell where he could not reach the bed. Plaintiff also asserts defendants denied him access to “facilities, programs, and services” as a result of his injury. (Id. at 7). This denial included lack of access to the shower. Plaintiff filed grievances related to these perceived ADA violations. Upon receipt of this grievance, non-defendant Sgt. Jolly verbally abused plaintiff. In December, 2017, prison officials refused to treat irritation in plaintiff's throat. Plaintiff contends this condition caused violent coughing fits and made breathing difficult. Beginning in March 2018, plaintiff alleges that further ADA violations denied him access to the dining hall. Finally, plaintiff mentions in passing various disciplinary convictions he received. However, he does not name the disciplinary hearing officers (“DHO”) who imposed these sentences as defendants, nor do his claims for relief indicate that he seeks to pursue any claim related to these disciplinary proceedings.

         COURT'S DISCUSSION

         A. Frivolity Review

         28 U.S.C. § 1915 provides that courts shall review complaints filed by prisoners and dismiss such complaints if they are “frivolous” or fail to state a claim on which relief may be granted. 28 U.S.C. § 1915(e)(2)(B)(I)-(ii). A complaint may be found frivolous because of either legal or factual deficiencies. First, a complaint is frivolous where “it lacks an arguable basis . . . in law.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). Legally frivolous claims are based on an “indisputably meritless legal theory” and include “claims of infringement of a legal interest which clearly does not exist.” Adams v. Rice, 40 F.3d 72, 75 (4th Cir. 1994) (quoting Neitzke, 490 U.S. at 327). Under this standard, complaints may be dismissed for failure to state a claim cognizable in law, although frivolity is a more lenient standard than that for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Neitzke, 490 U.S. at 328. Second, a complaint may be frivolous where it “lacks an arguable basis . . . in fact.” Id. at 325. Section 1915 permits federal courts “to pierce the veil of the complaint's factual allegations and dismiss those claims whose factual contentions are clearly baseless.” See Denton v. Hernandez, 504 U.S. 25, 32 (1992) (citing Neitzke, 490 U.S. at 327).

         To state a claim on which relief may be granted, the complaint must contain “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). In evaluating whether a claim is stated, “[the] court accepts all well-pled facts as true and construes these facts in the light most favorable to the plaintiff, ” but does not consider “legal conclusions, elements of a cause of action, . . . bare assertions devoid of further factual enhancement[, ] . . . . unwarranted inferences, unreasonable conclusions, or arguments.” Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir. 2009) (citations omitted). In other words, the plausibility standard requires a plaintiff to articulate facts that, when accepted as true, plausibly demonstrate that plaintiff is entitled to relief. Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (quotations omitted).

         1. Deliberate Indifference

         Plaintiff alleges various Eighth Amendment violations based on the delay in his treatment and his exposure to inhumane conditions of confinement. The Eighth Amendment's prohibition on cruel and unusual punishment requires prison officials to provide humane conditions of confinement. Makdessi v. Fields, 789 F.3d 126, 132 (4th Cir. 2015) (citing Farmer v. Brennan, 511 U.S. 825, 832-33 (1994)). A plaintiff alleging deliberate indifference to serious medical needs must establish that a prison official knew of and disregarded an “objectively serious condition, medical need, or risk of harm.” Shakka v. Smith, 71 F.3d 162, 166 (4th Cir. 1995); see also Farmer, 511 U.S. at 837. To succeed on an Eighth Amendment conditions of confinement claim, an inmate must “show both (1) a serious deprivation of a basic human need; and (2) deliberate indifference to prison conditions on the part of prison officials.” Strickler v. Waters, 989 F.2d 1375, 1379 (4th Cir. 1993) (quotation omitted).

         Because they are not clearly frivolous, plaintiff may proceed with his Eighth Amendment claims.

         2. Retaliation

         Plaintiff contends defendant Smith contributed to the delay in plaintiff's medical treatment as retaliation for plaintiff exercising his First Amendment Rights. To state a retaliation claim, plaintiff must allege: 1) that he engaged in constitutionally protected First Amendment activity, such as filing a lawsuit; 2) the defendant took an action that adversely affected that activity; and 3) there was a causal relationship between the plaintiff's protected activity and the defendant's conduct. Raub v. Campbell, 785 F.3d 876, 885 (4th Cir. 2015); see also Booker v. S.C. Dep't of Corr., 855 F.3d 533, 540 (4th Cir. 2017) (holding First Amendment right to petition the government violated when prison officials retaliate against inmate for filing prison grievances). “[A] plaintiff suffers adverse action if the defendant's allegedly retaliatory conduct would likely deter a person of ordinary firmness from the exercise of First Amendment rights.” Constantine v. Recotors & Visitors of George Mason Univ., 411 F.3d 474, 500 (4th Cir. 2005).

         Because it is not clearly frivolous, plaintiff may proceed with his ...


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