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Bowden v. Evans

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

March 28, 2019

ANTHONY B. BOWDEN Plaintiff,
v.
CHARLOTTE A. EVANS and PETER B. WOGLOM, Physician Assistant, Defendants.[1]

          ORDER

          Louise W. Flanagan, United States District Judge.

         This 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.

         STATEMENT OF THE CASE

         On 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 dermatologist.

         On 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 denied.

         Defendants 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, 2018.

         On 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”)[2] 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.

         On May 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.

         Plaintiff 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.

         STATEMENT OF FACTS

         The factual allegations in plaintiff's complaint are set forth below:

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 ...

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