United States District Court, W.D. North Carolina, Statesville Division
ERIC L. GREEN, Plaintiff,
ERIC DYE, et al., Defendants
D. WHITNEY, CHIEF UNITED STATES DISTRICT JUDGE
MATTER comes before the Court on a Motion for Summary
Judgment by Defendants Elizabeth Powell, Janice Welch,
Jeffrey Clawson, William Minton, Kenneth Poteat, and Reginald
Hamilton. (Doc. No. 56). Also pending is
Plaintiff's own summary judgment motion, (Doc. No. 50).
15, 2017, while incarcerated in the custody of the North
Carolina Department of Public Safety, and pursuant to 42
U.S.C. § 1983, Plaintiff Eric Green filed this action
against Nurse Practitioner, Marilyn Gamewell, and the moving
Defendants. (Doc. No. 1). Plaintiff alleges that
Defendants acted with deliberate indifference to his serious
medical need in violation of the Eighth Amendment while he
was incarcerated at Alexander Correctional Institution.
September 29, 2017, the Court issued a frivolity order
allowing Plaintiff's claims to proceed, except as to Eric
Dye. On February 26, 2018, Gamewell, filed a motion to
dismiss for failure to state a claim. (Doc. No. 27). On
August 30, 2018, the Court granted Gamewell's motion to
dismiss because Plaintiff failed to state a claim for
deliberate indifference as to her and failed to comply with
Rule 9(j) of the North Carolina Rules of Civil Procedure.
(Doc. No. 43 at 6-7).
November 19, 2018, Defendants filed the pending summary
judgment motion. (Doc. No. 56). On December 27, 2018, this
Court entered an order in accordance with Roseboro v.
Garrison, 528 F.2d 309 (4th Cir. 1975), advising
Plaintiff of the requirements for filing a response to the
motion for summary judgment and of the manner in which
evidence could be submitted to the Court. (Doc. No. 59).
Plaintiff filed a Response brief to the summary judgment
motion on January 11, 2019. (Doc. No. 60).
Plaintiff's Allegations and Summary Judgment
alleges that starting in March 2016, he began having his
teeth removed as part of multiple dental procedures. (Doc.
No. 1 at ¶¶ 17-19). Plaintiff alleges that on
January 28, 2017, he submitted a sick-call request,
complaining of constant pain while eating, headaches, and gum
discomfort. (Id. at ¶ 21). Plaintiff alleges
further that he submitted a second sick-call request on
February 7, 2017, again complaining of gum pain.
(Id. at ¶ 22). Plaintiff alleges that on
February 28, 2017, he wrote a letter to Defendant Poteat
informing him that his food was too hard to eat.
(Id. at ¶ 28). Additionally, Plaintiff alleges
that Defendant Powell was also aware of this issue.
alleges that on March 11, 2017, Nurse Practitioner Marilyn
Gamewell ordered Plaintiff on a “diet mechanical soft
ground meats only.” (Id. at ¶ 31).
Plaintiff alleges that on April 13, 2017, Defendants Clawson,
Powell, and Poteat knew that Plaintiff had received a meal
tray that he did not believe was “right, ” and
none of them corrected the issue. (Id. at ¶
37). Plaintiff further alleges that Defendants Minton and
Hamilton, who worked in the kitchen, refused to provide him
with the “right” meals. (Id. at
¶¶ 39-40). Plaintiff also alleges that on April 13,
2017, Defendant Welch was made aware that Plaintiff had not
received the “right” meal tray, and she failed to
correct the issue. (Id. at ¶ 41).
alleges that he was denied a proper diet with the right
amount of protein. (Id. at ¶ 47). Plaintiff
further alleges that Defendants were all deliberately
indifferent and negligent to his serious medical need because
they failed to provide him with the “right”
meals. (Id. at ¶¶ 56 58, 60, 62-63). In
his prayer for relief, Plaintiff seeks a declaration that
Defendants were deliberately indifferent in violation of his
Eighth Amendment rights, in failing to provide him a diet
that would allow him to consume a proper amount of protein.
(Id. at 20-22). Plaintiff also seeks compensatory
and punitive damages and injunctive relief. (Id. at
November 19, 2018, Plaintiff filed a motion for summary
judgment, with supporting materials. (Doc. No. 50). This
filing includes a one-page declaration from Plaintiff in
support of his motion, which relates solely to his dental
issues and not receiving more or different pain relief
medication. (Id. at 2). The filing further repeats
and then attempts to refute specific paragraphs contained in
an earlier filing by Gamewell. (Id. at 4-7). In
addition, Plaintiff filed another supporting document that
only references one Defendant. (Doc. No. 50-2 at ¶¶
15-18). Moreover, these paragraphs in Doc. No. 50-2, which
relate to Defendant Welch, do not contain any new factual
allegations. The remainder of the numbered paragraphs in Doc.
No. 50-2 relate to individuals other than Defendants.
Defendants' Summary Judgment Materials
summary judgment materials include the affidavits of Pamela
Chapman, Kenneth Poteat, Thomas Hummel, and Jeffery Clawson,
with attached exhibits. Defendants' evidence shows the
following events and circumstances:
submitted a sick call request seeking medical assistance
because he could not eat his food after all of his teeth were
pulled. (Doc. No. 58-1 at ¶ 7: Chapman Aff.). On
February 11, 2017, a sick call encounter was performed at the
clinic, and a dietitian consult was requested. (Id.
at ¶ 8). Also on February 11, 2017, a dietitian
performed a nutritional assessment on Plaintiff and
recommended a Mechanical Soft diet for twelve months.
(Id. at ¶ 9). On February 20, 2017, Nurse
Practitioner Marilyn Gamewell placed a Utilization Review
(UR) request on Plaintiff's behalf, requesting that he be
placed on a Mechanical Soft diet. (Id. at ¶
10). The UR request was approved on February 22, 2017.
(Id.). On March 6, 2017, following the UR approval,
the modified diet was accepted in Plaintiff's electronic
health record. (Id. at ¶ 11). When a modified
diet request is accepted in an inmate's electronic health