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Hembree v. Branch

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

May 3, 2019

DANNY R. HEMBREE, JR., Plaintiff,
v.
FNU BRANCH, et al., Defendants.

          ORDER

          Frank D. Whitney, Chief United States District Judge.

         THIS MATTER is before the Court on initial review of pro se Plaintiff's Amended Complaint, (Doc. No. 62). Plaintiff is proceeding in forma pauperis. (Doc. No. 9).

         I. BACKGROUND

         Pro se Plaintiff filed this civil rights suit pursuant to 42 U.S.C. § 1983 and North Carolina law while incarcerated at the North Carolina Department of Public Safety's (NCDPS) Central Prison.[1] The Complaint passed initial review on against Defendants Branch and Whitlock for the use of excessive force; against Defendant Flitt for medical deliberate indifference, against Defendants Branch, Hughes, Kim, and Whitlock for unwanted medical care, and the supervisory claims against Defendant Cloniger. The allegations were also sufficient as to several John Doe Defendants. The Court exercised supplemental jurisdiction over Plaintiff's North Carolina claims of assault, battery, and negligence against these Defendants. See (Doc. No. 7).

         Plaintiff filed the instant Amended Complaint within the applicable deadline and it presently before the Court for initial review. See (Doc. Nos. 53, 58).

         Plaintiff names as Defendants: Gaston County Sheriff Cloniger; Deputies Branch and Whitlock; Sergeant Hughes; Medical Director/Administrator Dr. Flitt; Nurse Kim Carter; Medical Department Deputy Jennifer A. Long; and Screening Nurse C. Allie.

         Liberally construing the Amended Complaint and accepting the allegations as true, Plaintiff was transported from Central Prison to the Gaston County Jail on March 9, 2016. Plaintiff was questioned by the intake deputy, Sergeant Price, upon arriving at the Jail with regards to his health status and medical needs including medications. Plaintiff told Price that he has stage-4 liver disease, diabetes, neuropathy, and a heart ailment. He complained of shortness of breath, body aches, and pains. Price told Plaintiff that he would be seen by medical within a few days as a routine matter. NCDPS officers turned over Plaintiff's medications including Neurontin, which had been prescribed by Dr. Vincent Wilson at Central Prison, as well as the medical protocol instructing the Jail how and when to administer Plaintiff's medications. Plaintiff was issued Jail clothes and a bedroll and was assigned a cell by a classification officer.

         Between one and three hours later, Plaintiff was escorted to medical for a routine intake screening by Nurse Allie. Nurse Allie told Plaintiff that Dr. Flitt had denied administration of Plaintiff's Neurontin used to treat Plaintiff's extremely painful neuropathy because it is one of the non-narcotic drugs that Flitt had banned from use in the Jail. Plaintiff asked for Ibuprofen or Tylenol for his body aches, pains, and low-grade fever. Allie told him that she would call Dr. Flitt to ask about Plaintiff's request but that they usually did not treat low-grade fever. Plaintiff was then escorted back to his cell.

         Approximately 16 hours later, Plaintiff was advised over the intercom system by a female deputy that he needed to see the nurse in medical to have his sugar checked. Plaintiff told the deputy that he was he was refusing all medical treatment until Dr. Flitt approved the Neurontin. The deputy said that Plaintiff could not refuse medical treatment because he was in jail. Plaintiff reiterated that he would continue to refuse all medical treatment at the Jail until Dr. Flitt agreed to administer the prescribed Neurontin.

         Five or 10 minutes later, Deputies Branch and Whitlock entered Plaintiff's cell while he was lying passively on the bottom bunk. Branch and Whitlock told Plaintiff to get up because he was going to medical to see the nurse. Plaintiff stated that he did not need to see the nurse because he was refusing medical treatment until Dr. Flitt agreed to provide his prescribed medication. Branch and Whitlock grabbed Plaintiff by his arms, “violently snatched” him off of his bunk to a standing position, and deliberately forced him into the wall headfirst, causing a 3 ½ inch laceration to his eyebrow which bled profusely. (Doc. No. 62 at 6). This entire interaction took less than 30 seconds. Emergency medical care was needed to stop the bleeding. Plaintiff also suffered a large contusion on the right side of his face, eye, and injury to his neck and shoulder that had to be treated upon Plaintiff's return to Central Prison several days later. At no time did Plaintiff attempt to assault or batter Branch and Whitlock in any way or attempt harm any Jail employee. Plaintiff was handcuffed behind his back as his face bled profusely, was roughly handled, and forced by Branch and Whitlock to go to the medical department against his will where he was “further assaulted” by Nurse Kim Carter. (Doc. No. 62 at 8).

         Sergeant Hughes (holding a digital camera), Deputy Jennifer A. Long, and Nurse Kim Carter were at the medical department when Plaintiff arrived there. Nurse Carter directed Deputies Branch and Whitlock to put Plaintiff in a chair where they forcefully restrained him. Nurse Carter cleaned and treated Plaintiff's facial laceration. Plaintiff was covered in blood was in a lot of pain which caused him to be emotional and loudly express his feelings by using profanity. Plaintiff told Nurse Carter that he was refusing all medical care, however, she said that he could not refuse and that she had an obligation under the health codes to clean up the blood and stop the bleeding to prevent danger from blood-borne pathogens. Plaintiff said “fine, go ahead” but to stop bothering him after the wound was cleaned and stopped bleeding. (Doc. No. 62 at 9). Nurse Carter said she intended to check Plaintiff's vital signs and take a blood sample from his finger to check his sugar, but Plaintiff stated “no, your not, I do not consent to any further treatment, once your through cleaning my eyebrow.” (Doc. No. 62 at 9). Nurse Carter put a blood pressure cuff on Plaintiff's arm against his will while he was handcuffed and restrained by Branch and Whitlock. Nurse Carter attempted to take Plaintiff's temperature but he refused to open his mouth. At this point, Plaintiff had informed Nurse Carter several times that he was making a competent, informed decision to refuse all medical treatment at the Jail due to their refusal to provide his prescribed medication. Nurse Carter threatened to have Branch and Whitlock strip him and restrain him while she took his temperature rectally if he would not cooperate. Plaintiff opened his mouth for Nurse Carter to take his temperature orally under duress. At this point, Nurse Carter went behind Plaintiff's back and pricked his finger for a blood test against Plaintiff's will. Plaintiff was forcefully escorted back to his cell by Branch and Whitlock, under the direct supervision of Sergeant Hughes.

         Plaintiff remained at the Jail for approximately seven to 10 days after the assault, battery, and denial of medication. He continued to refuse medical care during that time but was not assaulted further. Dr. Flitt continued to refuse to follow Plaintiff's prescribed medical protocol and refused to dispense his medication, which resulted in extreme, intense, and unnecessary pain.

         Plaintiff returned to Central Prison on March 17, 2016. At that time, he was screened by medical staff whom he advised that he had been assaulted, battered, and denied prescribed medication by the Gaston County Sheriff. Plaintiff was treated by his long-term primary care physician, Dr. Wilson, within 72 hours after he was referred to Central Prison's urgent care unit.

         Dr. Wilson treated Plaintiff's neck, back, and facial injuries with ibuprofen and instructed him on how to help speed his recover and prevent further damage. Plaintiff was also started back on all of his medications including Neurontin for his extremely painful neuropathy. Plaintiff was later treated by mental health professionals for a sleep disorder, depression, anxiety, and PTSD that was exacerbated by the attack by Branch and Whitlock. Plaintiff is still suffering PTSD symptoms from their actions.

         Plaintiff seeks declaratory judgment, injunctive relief, compensatory and punitive damages, a jury trial, any and all other relief that the Court deems proper.

         II. ...


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