United States District Court, W.D. North Carolina, Statesville Division
D. WHITNEY, CHIEF UNITED STATES DISTRICT JUDGE
MATTER is before the Court on initial review of
Plaintiff's Amended Complaint, (Doc. No. 74). He is
proceeding in forma pauperis, (Doc. No. 6).
se Plaintiff has filed a civil rights suit pursuant to
42 U.S.C. § 1983 while incarcerated at the Albemarle
Correctional Institution. The Complaint addresses events that
allegedly occurred at the Catawba Valley Medical Center
(“CVMC”), Alexander C.I., Central Prison, and
names as Defendants the following employees of CVMC and/or
Carolina Orthopedic Specialists: CVMC Director Eddie Beard;
Carolina Orthopedic Specialists Director Sean McNally;
Carolina Orthopedic Specialists Surgeon Alfred E. Geissele;
Carolina Orthopedic Specialists Nurse Practitioner Steve
McFarland; CVMC Anesthesiologist Frank E. Rinaldo, Jr.; and
CVMC Nurses Jane Doe 1 and 2.
names as Defendants the following employees of Albemarle
C.I.: Nurse Tanya Bamburger; Unit Manager FNU Bowden; Nurse
Practitioner Stephanie Brathwaite; Lieutenant FNU Brewton;
First Shift Lead Nurse Donna Byrd; Administrator Jack
Clelland; Assistant Superintendent of Custody/Operations
Kenneth Diggs; Nurse April Foreman; Correctional Officer FNU
Frick; Assistant Superintendent of Programs William Glick;
Nurse FNU Goines; Second Shift Lead Nurse Sheana Litaker;
Nurse FNU Maine; Correctional Officer Rhonda Morton; Nurse
FNU Mundle; Sergeant FNU Murphy; Nurse FNU Ojeda; Assistant
Superintendent of Custody/Operations Lawrence Parsons;
Medical Doctor Leonard F. Polanco; Lieutenant FNU Randle;
Nurse FNU Robertson.
names the following employees of Alexander C.I. as
Defendants: Medical Doctor FNU Chung; Physical Therapist FNU
Ford; Medical Doctor Marta M. Kalinski; Medical Doctor FNU
Quinn; Correctional Officer John Doe; and Correctional
Officer Jane Doe.
also names as Defendant the Director of Medical Services for
North Carolina Department of Public Safety
(“NCDPS”) Paula Smith.
allegations in the Amended Complaint are largely duplicative
of the original Complaint. Construing the Amended Complaint
liberally and accepting the allegations as true, Defendants
Frick and Morton transported Plaintiff to CVMC for scheduled
back surgery on September 23, 2015. Plaintiff's surgery
was delayed until the end of the day and Plaintiff told Frick
and Morton that he felt like he was on death row waiting to
go to his execution. Plaintiff was given medication then was
taken back for his surgery while Frick and Morton were led
away. Plaintiff was taken to what appeared to be a laundry
room where Defendants McFarland and Rinaldo beat him in the
presence of at least one nurse while Plaintiff, who was
medicated, was unable to defend himself. During the beating,
McFarland said “I don't know what you've got
going on with that tattoo, if it's a memorial to the
women you raped or what but I'm getting ready to fix you
where we don't ever have to worry about that ever again,
and the incision is not going to be as small as I said it
would be.” (Doc. No. 74 at 11). Plaintiff regained
consciousness after surgery when he was wheeled to a hospital
room. Defendants Frick and Morton had already left the
Geissele discharged Plaintiff from CVMC on September 25,
2015, with medical restrictions on lifting, bending, and
twisting, and orders that Plaintiff be housed in an infirmary
rather than the general population and that he return for a
follow-up in two weeks. Two Alexander C.I. officers put
Plaintiff in handcuffs, waist chain, and leg shackles and
pulled him into the back seat of a car to transport him to
Alexander C.I., which violated doctor's orders and caused
him excruciating pain.
Plaintiff arrived at Alexander C.I., Plaintiff told
Defendants Kalinski and Quinn about his injuries and pain,
including loss of rectal and bladder control. Kalinski felt
the lump on Plaintiff's chin and offered him diapers.
September 29, 2015 in the Alexander C.I. infirmary, Plaintiff
told Defendant Ford, a physical therapist and PREA contact,
that he would like to talk to him. Ford came to see Plaintiff
a few days later and Plaintiff told Ford about the September
23 assaults in detail, but Ford did not report them.
October 2, 2015, the infirmary nurse at Alexander C.I. let
Plaintiff's pain medication run out which left him to
suffer excruciating pain until it was renewed after October
October 6, 2015, Plaintiff was transported to Emerge for his
two-week checkup in a wheelchair. When he realized he would
see McFarland he asked the transfer officers not to leave him
alone with McFarland. Plaintiff showed McFarland the blue
chain-like marks on his feet, the lump on his chin, and his
pain and injuries. McFarland said that Plaintiff was not
under his care and he did not know what happened to
Plaintiff. McFarland ordered the continuation of
Plaintiff's pain medication and ordered six additional
weeks in the infirmary (through November 17, 2015) and
another follow-up in six weeks.
October 9, 2015, Plaintiff's parents called Beard,
Clelland, Geissele, Glick, McNally, Parsons, and Smith to try
and get accurate information about what happened to Plaintiff
and his condition. They were given the run-around and were
hung up on.
October 10, 2015, Plaintiff requested sick call to speak with
someone in mental health about the September 23 assault.
Chung closed the infirmary at Alexander C.I. on October 13,
2015 and had Plaintiff transferred to Central Prison. Chung
did not want to care for inmates in the infirmary any longer.
The closure was done in retaliation for Plaintiff exercising
his First Amendment right to inform Ford of the assaults, for
requesting mental health care, and for his parents' phone
was transferred from Alexander C.I. to Central Prison on
October 13, 2015, by two Alexander C.I. officials in a van,
which caused excruciating pain during the three-hour trip.
Upon arriving at Central Prison's ER, none of the staff
knew who Plaintiff was, where he had come from, or why he was
sent there. He was placed in a 23-hour holding cell without
phone access or visitation. A doctor eventually saw Plaintiff
that night and cut his pain medication from 10 mg every four
hours to 5 mg every six hours. On October 15, 2015, a doctor
ordered that Plaintiff be kept out of general population for
the next 21 days (12 days less than McFarland had ordered).
Plaintiff's pain level was 9 out of 10 so the doctor
raised the pain medication to 5 mg every four hours.
October 21, 2015, Central Prison “officials”
discharged Plaintiff from the hospital and attempted to
release him into general population. (Doc. No. 74 at 18).
Plaintiff explained his need for infirmary housing and the
use of the walker and he was allowed to remain in the 23-hour
October 26, 2015, Plaintiff was told to pack up because
Plaintiff was going back where he came from on a bus and the
walker could not go with him. However, instead of returning
to Alexander C.I., Plaintiff was sent to Albemarle C.I. Upon
arriving at Albemarle C.I., officers had to lift Plaintiff by
his arms to get him off the bus which caused excruciating
immediately informed Defendants Brewton, Mundle, and Murphy
he was supposed to be out of the general population and in
the infirmary per doctor's orders and that he was in a
lot of pain. Mundle told him that his activity level had been
changed from level 4 to level 2 and that nothing could be
done about it. He was placed in the general population in a
unit that does not have handicap facilities. Plaintiff put in
a sick call request with regards to the improper change in
his activity level.
went to the window for pain medication on October 26, 2015,
and Nurse Goins said “you have done gobbled up thirty
pills you don't have nothing to take.” (Doc. No. 74
at 19). She refused to give him Tylenol or anything.
Plaintiff was unable to sleep due to pain that night and on
many subsequent nights.
October 30, 2015, Plaintiff's mother phoned Nurse
Litaker, who found the October 15 doctor's order to keep
Plaintiff in the infirmary rather than general population.
Litaker informed the officer in charge, Randle, who offered
to place Plaintiff in segregation. Plaintiff explained that
segregation is not the same as an infirmary and said that he
wanted to go to the infirmary at Salisbury or Alexander C.I.
Randle said he could not do that and he had already spoken to
Parsons about the situation, who said “Earl Waston will
not go to segregation.” (Doc. No. 74 at 20). The
conversation with Randle kept Plaintiff from filing an
emergency grievance because, according to Randle, Parsons
already knew that Plaintiff was supposed to be in the
infirmary per doctor's orders.
a sick call on October 31, 2015, Plaintiff discovered that
there was 625 mg of Tylenol in his self-medication bag that
Kalinski had ordered for him on September 25, 2015.
“Medical staff” did not give Plaintiff the
Tylenol for his pain. (Doc. No. 74 at 20).
November 2, 2015, the sick call list indicated that Plaintiff
had an appointment, but the list then disappeared. When
Plaintiff went to medical to ask about his appointment, Nurse
Bamburger said there was no sick call for him, it must be
lost, and he should put in another request.
November 3, 2015, Plaintiff filed a grievance about being
improperly discharged from the infirmary and being returned
to general population against doctors' orders and
appealed to the highest level.
November 9, 2015, Plaintiff was seen by Defendant Polanco,
whom Plaintiff told he was still supposed to be in the
infirmary, that his rectal muscles were damaged, that he was
having trouble holding his urine, and that he could not sleep
because his pain was 9 out of 10. Polanco examined
Plaintiff's back and saw the healed surgical scar and
stated “all that don't matter, you're healed
up.” (Doc. No. 74 at 21). Polanco refused to look at
the blue marks on Plaintiff's ankle and foot.
November 10, 2015, Plaintiff wrote a letter to NC Prisoner
Legal Services about filing a civil case regarding the
deprivation of rights and medical needs, and his case was
declined on December 1, 2015.
November 18, 2015 Plaintiff submitted another grievance about
the violation of his rights after his back surgery, not being
kept in the infirmary, and lack of pain medication.
November 20, 2015, Plaintiff was taken to Emerge by Officers
Frick and Catoe. Plaintiff asked the officers not to leave
him alone. Plaintiff told Geissele and McFarland that he had
been taken out of the infirmary weeks too early, that his
pain level was 8 out of 10, and he was not being given
oxycodone at Albemarle C.I. Geissele ordered 30 more days of
walker use and oxycodone.
Albemarle C.I., Plaintiff periodically reported to the pain
medication window to see if the medication that Geissele
ordered had arrived. He also put in a sick call request for
the medication on November 27, 2015. He filed a grievance and
appealed the response because he still had not received a
narcotic pain medication. On November 29, 2015 a Step-One
response was filed regarding the November 18 grievance saying
that medical cannot give offenders a narcotic for
self-medication and that his medication will continue at the
medication window. He appealed, explaining that no medication
was being provided at the window.
saw Nurse Ojeda on November 30, 2015, she said that no
medical staff had checked his file since he had gone to
Emerge on November 20 and scheduled him to see a provider the
next day. However, that visit never happened.
December 1, 2015, Plaintiff received a copy of the Unit
Response to his November 18 grievance and asked Sergeant
Mullins whether the response said that he had a narcotic at
the pain medication window. Mullins said yes. Plaintiff asked
Mullins to call medical to verify, which Mullins did.
Bamburger told Mullins “Mr. Watson does not have a