Green v. Dye

          ORDER

          FRANK D. WHITNEY, CHIEF UNITED STATES DISTRICT JUDGE

         THIS 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.^[1] (Doc. No. 56). Also pending is Plaintiff's own summary judgment motion, (Doc. No. 50).

         I. BACKGROUND

         A. Procedural Background

         On June 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.^[2] (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.

         On 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).

         On 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).

         B. Factual Background

         1. Plaintiff's Allegations and Summary Judgment Materials

         Plaintiff 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. (Id.).

         Plaintiff 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).

         Plaintiff 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 25-30).

         On 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.

         2. Defendants' Summary Judgment Materials

         Defendants' 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:

         Plaintiff 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 ...