United States District Court, E.D. North Carolina, Western Division
W. FLANAGAN UNITED STATES DISTRICT JUDGE.
matter is before the court on defendants' motions for
summary judgment (DE 114, 125), filed pursuant to Federal
Rule of Civil Procedure 56. The motions were fully briefed
and thus the issues raised are ripe for decision. For the
reasons that follow, the court grants the motions and
dismisses plaintiff's claims.
OF THE CASE
December 28, 2015, plaintiff, a state inmate proceeding pro
se, filed this civil rights action pursuant to 42 U.S.C.
§ 1983, alleging claims for deliberate indifference to
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 officials to treat his medical conditions.
January 6, 2017, plaintiff filed the operative amended
complaint. The court conducted its frivolity review of the
amended complaint on January 26, 2017, and allowed the matter
to proceed. Plaintiff's complaint names the following
defendants: Paula Yvonne Smith (“Smith”); Carmen
Hendricks (“Hendricks”); John Douglas Mann
(“Mann”); Evonne Moore (“Moore”);
Lynda Padgett (“Padgett”); Donald Micklos
(“Micklos”); Letitia Owen (“Owen”);
Valerie M. Trexler (“Trexler”); Ronald Bell
(“Bell”); Clinton Brockington
(“Brockington”); Thomas Nuzum(“Nuzum”); and Dr. Falcon
(“Falcon”). Defendants are North Carolina
Department of Public Safety (“DPS”) prison
officials or DPS-contracted medical providers. On February
16, 2017, the court granted plaintiff's motion to
voluntarily dismiss his claims against defendants Micklos and
March 30, 2017, plaintiff filed motion to appoint counsel.
The court denied the motion in order entered April 4, 2017.
interim, on April 3, 2017, defendant Hendricks filed motion
to dismiss. Defendants Mann and Nuzum also filed motion to
dismiss on May 5, 2017. Additionally, defendant Brockington
failed to file responsive pleading or Rule 12 motion after
service of the amended complaint, and default was entered
against him by the clerk, on December 6, 2017. Plaintiff
filed motions for default judgment as to defendant
Brockington on December 14, 2017, and January 22, 2018.
February 23, 2018, the court entered order denying
plaintiff's motions for default judgment and granting
defendants Hendricks and Mann's motions to dismiss. The
order also granted defendant Nuzum's motion to dismiss as
to the official capacity claims alleged against him, but
denied his motion as to the individual capacity claims.
February 26, 2018, defendant Bell filed motion to dismiss,
which the court subsequently granted, dismissing all claims
against defendant Bell. On March 8, 2018, the court entered
initial case management order governing discovery and
dispositive motions practice, and also appointed North
Carolina Prisoner Legal Services (“NCPLS”) to
represent plaintiff for the discovery phase of the case. The
parties completed discovery on or about September 10, 2018.
On September 17, 2018, NCPLS moved to withdraw from
representing plaintiff, noting its opinion that further
appointment of counsel is not necessary in this action. The
court granted NCPLS's motion to withdraw on September 19,
Nuzum filed the instant motion for summary judgment on
October 10, 2018, supported by memorandum of law, statement
of material facts, and appendix. The appendix includes
defendant Nuzum's personal affidavit, affidavit of
non-party Dr. Steve Choi (“Choi”), Dr. Choi's
curriculum vitae, and selected records from plaintiff's
medical file. Plaintiff timely filed response in opposition
to the motion, supported by memorandum of law, statement of
material facts, plaintiff's personal affidavit, affidavit
of non-party Danny Pritchard (“Pritchard”), and
selected medical records.
December 17, 2018, defendants Smith, Owen, Trexler, Moore,
and Padgett (together, the “DPS defendants”),
filed the instant motion for summary judgment, supported by
memorandum of law, statement of material facts, and appendix.
The DPS defendants' appendix includes defendants Moore,
Owen, Padgett, Smith, and Trexler's personal affidavits,
pertinent DPS medical policies, plaintiff's medical
records, and plaintiff's administrative grievances dated
October 31, 2012, July 23, 2015, August 22, 2015, September
11, 2015, and August 16, 2016. Plaintiff timely filed
response in opposition, supported by memorandum of law,
plaintiff's personal affidavit, and affidavit of
non-party Pritchard. DPS defendants filed reply in further
support the instant motion for summary judgment on February
facts viewed in the light most favorable to plaintiff may be
summarized as follows. During the relevant time period,
plaintiff was serving a state term of imprisonment at various
DPS facilities. (Padgett Aff. (DE 128-3) ¶ 8; Owen Aff.
(DE 128-5) ¶ 7)
Hepatitis C Claim
suffers from Hepatitis C. (Nuzum Aff. (DE 117-1) ¶ 7).
The medical defendants allegedly refused to treat
plaintiff's Hepatitis C because he is African American.
(Pl.'s Aff. (DE 121-2) at 1; July 23, 2015, Grievance (DE
128-10) at 3, 5). Defendants also allegedly refused to
prescribe Harvoni, a more effective medication, because
during the relevant time period Harvoni was not available to
DPS inmates. (Pl.'s Aff. (DE 121-2) at 1).
C is a virus that damages the liver. (Nuzum Aff. (DE 117-1)
¶¶ 5, 7). Plaintiff's medical records show that
in June 2014, plaintiff had no signs or symptoms of cirrhosis
of the liver, and a “FibroSure score” of one,
which corresponds to “fairly mild” ...