United States District Court, E.D. North Carolina, Western Division
ANTHONY B. BOWDEN Plaintiff,
CHARLOTTE A. EVANS and PETER B. WOGLOM, Physician Assistant, Defendants.
W. Flanagan, United States District Judge.
matter is before the court on defendants' motion for
summary judgment limited to failure to exhaust administrative
remedies and in the alternative motion to dismiss (DE 55).
The motion has been fully briefed and thus the issues raised
are ripe for ruling. For the reasons that follow, the motion
to dismiss is granted in part and denied in part.
OF THE CASE
August 4, 2016, plaintiff, a state inmate proceeding pro se,
filed this civil rights action pursuant to 42 U.S.C. §
1983, alleging defendants were deliberately indifferent to
his serious medical needs in violation of the Eighth
Amendment to the United States Constitution. As relief,
plaintiff seeks compensatory and punitive damages and an
injunction directing prison medical staff to refer him to a
April 5, 2017, plaintiff filed his first amended complaint.
On April 12, 2017, the court conducted its frivolity review
of the amended complaint and allowed the matter to proceed as
to plaintiff's claims against defendants Evans and
Woglom, but dismissed plaintiff's claims against
previously-named defendants Bertie Correctional Institution
and the medical department. On June 28, 2017, plaintiff filed
motion to appoint counsel, which the court subsequently
filed initial motion for summary judgment or in the
alternative motion to dismiss on September 5, 2017. Three
days later, plaintiff filed motion to amend the complaint. On
February 2, 2018, the court entered order granting the motion
to amend, directing plaintiff to file a second amended
complaint, and denying the pending motion for summary
judgment or in the alternative motion to dismiss as moot.
Plaintiff filed second amended complaint on February 14,
April 17, 2018, the court conducted its frivolity of the
second amended complaint, and directed plaintiff to file
third amended complaint particularizing his claims. Plaintiff
filed the operative third amended complaint
(“complaint”) on April 25, 2018. The court conducted
its frivolity review of the third amended complaint on May 2,
2018, and allowed the matter to proceed as to defendants
Evans and Woglom but dismissed plaintiff's claims against
previously-named defendants Caroline Riddick-Taylor and
Caledonia Correctional Institution.
23, 2018, defendants Evans and Woglom filed the instant
motion for summary judgment (limited to failure to exhaust
administrative remedies) and in the alternative motion to
dismiss, supported by statement of material facts, memorandum
of law, and appendix. Defendants' appendix includes
affidavit of non-party Kimberly Grande and plaintiff's
administrative grievance records. Defendants' motion also
relies on previously-filed affidavit of non-party Finesse
Couch and additional grievance records attached thereto.
filed response to the instant motion on March 15, 2019,
supported by statement of material facts, memorandum of law,
and appendix including administrative grievance records,
defendants' objections to plaintiff's discovery
requests, and plaintiff's personal declaration.
Defendants filed reply if further support of the motion on
March 26, 2019.
factual allegations in plaintiff's complaint are set
Peter B. Woglom P.A. kept refus[ing] me the right medication
for my skin condition, each time I put in sick call after
sick call. Then P.A. Woglom refus[ed] to report my condition
to Dr. Charlotte A. Evans. On one occasion I kept asking [to
see Dr.] Charlotte A. Evans. Then Dr. Evans refus[ed] to see
me on several occasions when I requested.
Therefore pursuant to the second facts of continual [sic],
Peter B. Woglom kept refus[ing] me the right medication for
my skin condition, each time I put in sick call after sick
call. Then P.A. Woglom refused to report my condition to Dr.
Evans. On one occasion I kept asking for . . . Dr. Evans.
The[n] Dr. Evans refus[ed] to see me on several occasions
when I ...