Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Johnson v. North Carolina Department of Public Safety

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

May 6, 2019

WILEY DALLAS JOHNSON, Plaintiff,
v.
NORTH CAROLINA DEPARTMENT OF PUBLIC SAFETY, et al., Defendants.

          ORDER

          Frank D. Whitney, Chief United States District Judge.

         THIS MATTER comes before the Court on Defendants' Motions for Summary Judgment, (Doc. No. 62).

         I. BACKGROUND

         Pro se incarcerated Plaintiff filed a civil rights suit pursuant to 42 U.S.C. § 1983, the Americans with Disabilities Act (“ADA”), and Rehabilitation Act (“RA”), and the North Carolina LAW. Plaintiff claimed that he was denied treatment with breakthrough drugs for his Hepatitis-C viral (“HCV”) infection that are the medical community standard of care, for non-medical reasons. (Doc. No. 8). The Amended Complaint passed initial review on Plaintiff's claims against Defendants James Duckworth, Bret Bullis, Chad Green, David W. Guice, Robert Uhren, Frank L. Perry, Keith D'Amico, Betty Penland, [1] Paula Y. Smith, Renita Stroup, Kathryn Renfro, Cindy Haynes, Carolyn Buchanan, James Vaughn, Sandra Pitman, Norma Melton, Mike Slagle, and Mike Ball. See (Doc. No. 18). Defendants Uhren and D'Amico filed a Motion to Dismiss due to Petitioner's failure to exhaust his administrative remedies. (Doc. No. 34). Petitioner failed to respond despite being informed of his right to do so pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), and Defendants Uhren and D'Amico's Motion was granted on July 27, 2018. (Doc. No. 58). The remaining Defendants have now filed the instant Motion for Summary Judgment. (Doc. No. 62).

         (1) Amended Complaint (Doc. No. 8)

         Plaintiff alleges in his unverified[2] Amended Complaint that NCDPS does not screen incoming inmates for Hepatitis-C virus and, for inmates who have been diagnosed with Hepatitis-C, and refuses to provide “breakthrough” 12-week oral pill treatment until infected inmates have experienced severe and irreversible liver damage.

         He argues Guice, as Commissioner of NCDPS, is responsible for policy and procedure, administration, and supervision of staff and employees within NCDPS during the relevant time. Perry, as secretary of NCDPS, is responsible for oversight, operation, and administration of DPS including providing appropriate medical treatment and formulating policy and procedure to ensure the provision of treatment for Plaintiff and those similarly situated. Smith, as NCDPS medical director, serves on the Utilization Review Board, and is responsible for overseeing delivery of all medical services in division of prisons as well as the establishment of medical policy and procedure that governs the med treatment of all inmates in the division of prisons. Regional Medical Director Pittman, Mountain View C.I. Lead Nurse Melton, Mountain View C.I. Administrator Slagle, Avery Mitchell C.I. Lead Nurse Penland, are responsible for supervising and monitoring the delivery of medical and dental care services to inmates, which must be provided consistent with community standards. He also named John and Jane Doe doctors, nurses, case managers, correctional officers, supervisors, “and any N.C. Dept of Public Safety/ Division of Prisons, employees, agents, or representatives whose work place are Mountain View Correctional Institution, Avery Mitchell Correctional Institution and any other prisons operated by the defendants charged with responding to requests for medical care for HCV Infections from now-unknown inmates within the NC prison systems.” (Doc. No. 8 at 14). He claims that Defendants were deliberately indifferent by refusing to treat Plaintiff's disability, disease, and serious medical needs regarding Hepatitis-C infection in compliance with current standards of individualized professional medical care.

         Plaintiff argues that NCDPS policy, and its employees' enforcement of it, amounts to cruel and unusual punishment, violates equal protection because Hepatitis-C is screened and treated differently from HIV, and violates the North Carolina Constitution. Further, he argues, the policy violates the ADA and RA because Hepatitis-C infected inmates are excluded from DPS programs that could result in gain time.

         Plaintiff seeks declaratory judgment, injunctive relief, compensatory and punitive damages, and such other relief to which he is entitled. He also seeks preliminary injunctive relief for immediate treatment with the breakthrough drug therapy.

         (2) Defendants' Motion for Summary Judgment (Doc. No. 62)

         The remaining Defendants argue that summary judgment should be granted in their favor because none of the custody correctional staff, other employees, or executive managers have ever been involved in providing patient care to inmates. Only Smith was responsible for the creation, implementation, and modification of policies/ procedures/ guidelines regarding health services including HCV, and she did not consult or work with any of the Defendants on the HCV policy.

         NCDPS's ADA and RA policy provides for reasonable accommodations. A recommendation is made by the ADA coordinator and further review is done. The executive management and correctional staff, medical staff, and contractors are not involved in the ADA request and determination process. Plaintiff did not make an ADA request while housed at Avery-Mitchell but made two at Mountain View. The second ADA request was submitted after Plaintiff filed his Amended Complaint.

         The Department Defendants are entitled to summary judgment because Plaintiff did not exhaust his available administrative remedies about his HCV claims before initiating this action; even if the claims were exhausted, none of the Department Defendants were involved in providing patient care to Plaintiff and cannot be deliberately indifferent. Of the 19 Defendants, only Uhren and D'Amico were involved in providing medical care to Plaintiff, and 15 of the 17 remaining Defendants were not involved in providing patient care. Penland and Renfro were registered nurses at Avery-Mitchell at the relevant times but there is no evidence to suggest that they provided care to Plaintiff. Only Smith was involved in the creation and implementation of HCV policy, and her actions do not support a claim of deliberate indifference.

         Defendants argue that they are entitled to summary judgment on Plaintiff's deliberate indifference claims under the North Carolina Constitution because the § 1983 analysis governs.

         They argue that the ADA and RA claims warrant summary judgment because none of the Defendants were involved in the ADA request and evaluation process and Plaintiff did not submit an ADA request before filing this action so he cannot satisfy the elements to establish an ADA or RA violation. Further, Plaintiff's state law claims including medical malpractice must be dismissed because Plaintiff did not comply with Rule 9(j).

         Moreover, the Department Defendants are entitled to qualified immunity because their actions were reasonable.

         Defendants further argue that Plaintiff's official capacity claims for compensatory and punitive damages are barred by the Eleventh Amendment, that the ADA and RA do not authorize suit for monetary damages against the Department Defendants in their individual capacities, and that Plaintiff's allegations do not support an award of punitive damages in their individual capacities.

         For these reasons, Defendants argue, summary judgment should be granted and the case should be dismissed in its entirety.

         (3) Plaintiff's Responses (Doc. Nos. 66, 71)

         Pro se Plaintiff was informed of the importance of responding to Defendants' Motion for Summary Judgment and the legal standard applicable to such motions. (Doc. Nos. 65, 70). Plaintiff was cautioned that his failure to respond would probably result in the grant of relief that the Defendants are seeking. (Id.).

         Plaintiff filed a Response, (Doc. No. 66), in which he attempts to rebut Defendants Uhren and D'Amico's Motion to Dismiss as well as the present Motion for Summary Judgment. He argues that his claims should be granted, that Rule 9(j) does not apply, that he requested HCV treatment numerous times, and that he is not required to exhaust administrative remedies before suing under ADA for relief including equitable relief (Doc. No. 66 at 10). He signed the Response before a notary “to the best of [his] knowledge….” (Doc. No. 66 at 11).

         In a second Response, (Doc. No. 71), Plaintiff states that he is not required to exhaust administrative remedies under the ADA and that he considered disabled under the RA and ADA because he has an infectious disease. He also argues that Defendants are liable as supervisors because they failed to intervene in constitutional violations, and that the Court should consider the full medical records and that Judge Osteen granted immediate relief to three HCV-infected inmates in a separate case. The Response was signed before a notary.

         (4) Evidence[3]

         (A) Affidavit of Renita Stroup (Doc. No. 69-1)

         Renita Stroup has been a Nurse Supervisor at Avery-Mitchell C.I. since November 2015 and, before that date, she was the Lead Nurse at Avery-Mitchell. Her responsibilities as Nurse Supervisor include serving as a supervisor for all other nursing and other healthcare staff who work in the Avery-Mitchell medical unit.

         The types of staff at Avery-Mitchell who are directly involved in patient care to inmates are limited to registered nurses, licensed practical nurses, physician assistants, and medical doctors. While Stroup supervises various medical personnel, she is not directly involved in providing patient care to inmates. Not now, or at any time since she has worked at Avery-Mitchell, have Facility Administrators, Assistant Facility Administrators, or various other correctional staff (other than those listed above) been involved in providing patient care to inmates. Not now, nor at any time since Stroup has worked at Avery-Mitchell, have other employees and executive management of the Department such as the Director of Health Services for the Division of Prisons of the Department, the Nurse Supervisor for the Western Region for the Division of Prisons of the Department, the Commissioner of Adult Correction and Juvenile Justice, or the Secretary of the Department, been involved in providing patient care to inmates. Neither Stroup nor Defendants Smith, Pittman, Guice, Perry, and Ball were ever involved in providing patient care to inmates at Avery-Mitchell including Plaintiff. (Doc. No. 69-1 at 3).

         (B) Affidavit of Norma Melton (Doc. No. 69-2)

         Defendant Melton is a Nurse Supervisor at Mountain View C.I. and was so employed between July 2012 and February 2016. Her responsibilities as Nurse Supervisor include serving as a supervisor for all other nursing and other healthcare staff who work in the Mountain View medical unit. The types of staff at Mountain View who are directly involved in patient care to inmates are limited to registered nurses, licensed practical nurses, physician assistants, and medical doctors. While Melton supervises various medical personnel, she is not directly involved in providing patient care to inmates.

         Not now, or at any time since she has worked at Mountain View, have Facility Administrators, Assistant Facility Administrators, or various other correctional staff (other than those listed above) been involved in providing patient care to inmates. Not now, nor at any time since Melton has worked at Mountain View, have other employees and executive management of the Department such as the Director of Health Services for the Division of Prisons of the Department, the Nurse Supervisor for the Western Region for the Division of Prisons of the Department, the Commissioner of Adult Correction and Juvenile Justice, or the Secretary of the Department, been involved in providing patient care to inmates. Accordingly, neither Melton nor Defendants Bullis, Buchanan, Duckworth, Green Guice, Haynes, Perry, Pittman, Slagle, or Smith were ever involved in providing patient care to inmates at Mountain View including Plaintiff. (Doc. No. 69-2 at 3-4).

         © Affidavit of Jason Penland (Doc. No. 69-3)

         Jason Penland is the Correctional Assistant Superintendent for Programs at Avery-Mitchell C.I. and was so employed between July 2012 through January 2014, and April 2015 through February 2016. As Correctional Assistant Superintendent for Programs, his responsibilities include consulting with units on programs, policies, and classification, and assessing training of programs staff. He is familiar with the Department's policy and procedure regarding reasonable accommodation for inmates with disabilities.

         The purpose of the Department's ADA policy is to “establish policy and procedures regarding the Prisons' commitment to compliance with ADA and the [RA].” (Doc. No. 69-3 at 2). As the Assistant Superintendent for Programs at Avery-Mitchell, Penland serves as the Facility ADA Administrator pursuant to NCDPS ADA Policy. It is the policy of NCDPS to establish procedures for an inmate to request an accommodation for a qualified disability that affects a major life activity and to ensure that, among other things, reasonable accommodations are made to facility jobs, programs, activities and services to permit participation by a qualified inmate with a disability and that no qualified individual with a disability is excluded from participation or denied the benefits of jobs, programs, activities, or services solely due to such a disability. The ADA policy provides that eligible and otherwise qualified inmates with a disability shall have the same opportunities for access to jobs, programs, activities, or service options as non-disabled inmates. The ADA policy provides that inmates are informed of the amount of their Gain/Earned time during their scheduled case management contacts if an inmate disagrees with the assessment of Gain/Earned Time, the inmate may use the administrative remedy procedure pursuant to NCDPS policy.

         The ADA Policy provides a detailed procedure for requesting a reasonable accommodation. Under this procedure:

a. The Inmate Reasonable Accommodation Request Forms (DC-746) are readily accessible to all inmates by any and all prison staff. Inmates are made aware of these forms during the facility orientation process during the admission process.
b. An inmate who has a disability that he/she believes is not being reasonably accommodated must submit a written request for accommodation using the Inmate Reasonable Accommodation Request Form (“Request Form”) to his/her case manager. The form must specify the disability and the accommodation or service sought.
c. After the Request Form is completed it is sent to the Facility Disability Case Manager who then contacts the facility Mental Health Social Worker to start the review and evaluation process.
d. After consultation with mental health and medical staff at the facility, the Mental Health Social Worker will note a recommendation to either approve or deny the request on a disability assessment form.
e. The completed disability assessment form is then sent to the Facility ADA Coordinator for review and approval/denial of the recommendation.
f. The Facility ADA Coordinator then reviews the request and the recommendations to determine whether he/she will approve or deny the recommendation. In either instance, the facility ADA Coordinator will forward the request, recommendation and their approval or denial, to the Prisons ADA Coordinator for further review and determination.
g. If the Facility ADA Coordinator approves the recommendation that an accommodation be made, then the Facility ADA Coordinator must forward the approved Request Form to the Prisons ADA Coordinator.
h. The Prisons ADA Coordinator then conducts their own review. If the Prisons ADA Coordinator concurs with the approval of the recommendation, then the Prisons ADA Coordinator sends the Request Form to a Prisons ADA Compliance Specialist to review and approve any changes to the job, program, activity or service being proposed to accommodate the inmate. After the ADA Compliance Specialist reviews and acts on the Request Form, the form is returned to the facility ADA Coordinator. The action of the Prisons ADA Coordinator and Prisons ADA Compliance Specialist is final.
i. Once the Facility ADA Coordinator receives the Request Form, the Facility ADA Coordinator must proceed with implementing the approved ADA accommodation(s).
j. If the inmate is no longer housed at that facility, the Facility ADA Coordinator must forward the Request Form to the Facility ADA Coordinator at the inmate's current housing facility.
k. If the Facility ADA Coordinator does not approve the recommendation that an accommodation be made (or if the recommendation is that an accommodation not be made and the Facility ADA Coordinator concurs), then the Facility ADA Coordinator must forward the denied Request Form to the Prisons ADA Coordinator for final decision making.
l. If the Prisons ADA Coordinator disagrees and approves the request, then the process of review, approval, and implementation continues as though the Request Form was approved.
m. If the Prisons ADA Coordinator agrees with the recommendation that the request be denied, then the denied Request Form is returned to the Facility ADA Coordinator who then ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.