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Tunstall-Bey v. Smith

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

March 29, 2019

CHARLES ALONZO TUNSTALL-BEY, Plaintiff,
v.
PAULA YVONNE SMITH, LETITIA OWEN, VALERIE M. TREXLER, EVONNE MOORE, LYNDA PADGETT, CLINTON BROCKINGTON, AND THOMAS NUZUM, Defendants.[1]

          ORDER

          LOUISE W. FLANAGAN UNITED STATES DISTRICT JUDGE.

         This matter is before the court on defendants'[2] 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.

         STATEMENT OF THE CASE

         On 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.

         On 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[3](“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 Falcon.

         On March 30, 2017, plaintiff filed motion to appoint counsel. The court denied the motion in order entered April 4, 2017.

         In the 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.

         On 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.

         On 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, 2018.

         Defendant 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.

         On 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 22, 2019.

         STATEMENT OF FACTS

         The 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)

         A. Hepatitis C Claim

         Plaintiff 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).[4] 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).

         Hepatitis 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” ...


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