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Watson v. Smith

United States District Court, W.D. North Carolina, Statesville Division

March 30, 2019

PAULA SMITH, et al., Defendants.



         THIS 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).

         I. BACKGROUND

         Pro 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 Albemarle C.I.

         Plaintiff names as Defendants the following employees of CVMC and/or Carolina Orthopedic Specialists:[1] 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.

         Plaintiff 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.

         Plaintiff 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.

         Plaintiff also names as Defendant the Director of Medical Services for North Carolina Department of Public Safety (“NCDPS”) Paula Smith.

         The 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 hospital.

         Defendant 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.

         When 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.

         On 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.

         On 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 5, 2015.

         On 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.

         On 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.

         On October 10, 2015, Plaintiff requested sick call to speak with someone in mental health about the September 23 assault.

         Defendant 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 calls.

         Plaintiff 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.

         On 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 holding cell.

         On 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 pain.

         Plaintiff 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.

         Plaintiff 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.

         On 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.

         During 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).

         On 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.

         On 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.

         On 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.

         On 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.

         On 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.

         On 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.

         At 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.

         Plaintiff 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.

         On 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 ...

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