United States District Court, W.D. North Carolina, Charlotte Division
DANNY R. HEMBREE, JR., Plaintiff,
FNU BRANCH, et al., Defendants.
D. Whitney, Chief United States District Judge.
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).
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. 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).
filed the instant Amended Complaint within the applicable
deadline and it presently before the Court for initial
review. See (Doc. Nos. 53, 58).
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.
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.
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.
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.
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).
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
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.
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
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.
seeks declaratory judgment, injunctive relief, compensatory
and punitive damages, a jury trial, any and all other relief
that the Court deems proper.