United States District Court, W.D. North Carolina, Charlotte Division
D. Whitney Chief United States District Judge
MATTER is before the Court on initial review of
Plaintiff's Complaint, filed under 42 U.S.C. § 1983.
[Doc. 1]. See 28 U.S.C. §§ 1915(e)(2);
1915A. On August 15, 2018, the Court entered an order waiving
the initial filing fee and directing monthly payments be made
from Plaintiff's prison account. [Doc. 7]. Thus,
Plaintiff is proceeding in forma pauperis.
Plaintiff Dontary Cole (“Plaintiff”) is a
prisoner of the State of North Carolina, currently
incarcerated at Lanesboro Correctional Institution in
Polkton, North Carolina. Plaintiff filed this action on July
24, 2018, pursuant to 42 U.S.C. § 1983, naming the
following as Defendants: (1) North Carolina Department of
Adult Corrections (“DAC”); (2) FNU Bennette,
identified as the Medical Director at Lanesboro Correctional
Institution; (3) Prison Health Services (“PHS”);
(4) Gregory Haynes, identified as a primary care provider at
Lanesboro Correctional Institution; and (5) Nurse Jane Doe,
who is only identified as a “nurse at the Lanesboro
Correctional Facility.” [Doc. 1].
brings claims against Defendants for deliberate indifference
to serious medical needs in violation of his Eighth Amendment
rights and for violation of the Americans with Disabilities
Act (ADA) by failing to accommodate Plaintiff's
disabilities to allow him access to the programs and services
offered by the DAC. [Doc. 1]. Plaintiff alleges as follows:
In or around August of 2017, shortly after Plaintiff was
transferred to Lanesboro Correctional Institution, Plaintiff
requested a prescription for orthopedic shoes that he needs
for treatment of his “hammer toes” condition.
Plaintiff has had this condition his entire life. Since June
23, 2009, Plaintiff's prescription for these orthopedic
shoes has been provided by the DAC and the PHS. The shoes
allow Plaintiff to stand, walk, and to perform tasks around
the prison, such as cleaning his cell, showering, walking to
medical and meal services, and to participate in recreational
activities and religious services that are offered by the
claims that from August 2017 through the date of submission
of his Complaint, Defendants have denied him access to the
orthopedic shoes he requires to treat his hammer toes
condition, have failed to provide timely and adequate medical
care to address Plaintiff's condition, have denied
numerous repeated requests for treatment, and maintained
“informal policies designed to deny medical care,
services, accommodations, treatment and prescribed
therapies.” [Doc. 1 at 4-11]. Plaintiff also alleges
that, as a result of the prolonged denial and lack of
adequate care, Plaintiff suffered a tear of his ACL (anterior
cruciate ligament), a condition that was diagnosed by a
physician that is not a party to this lawsuit, and was told
that he needs to see an orthopedic specialist. Plaintiff
alleges he is in great physical and mental pain, has not been
given a treatment plan for his ACL injury, and believes that
without corrective surgery and physical therapy, he risks
permanent disability. [Id. at 10-11]. Further,
because of his significant physical pain, Plaintiff does not
have adequate access to programs and services offered by the
DAC. Plaintiff seeks injunctive relief and compensatory and
punitive damages. [Id. at 5, 12].
STANDARD OF REVIEW
Plaintiff is proceeding in forma pauperis, the Court must
review the Complaint to determine whether it is subject to
dismissal on the grounds that it is “frivolous or
malicious [or] fails to state a claim on which relief may be
granted.” 28 U.S.C. § 1915(e)(2). Furthermore,
under § 1915A the Court must conduct an initial review
and identify and dismiss the complaint, or any portion of the
complaint, if it is frivolous, malicious, or fails to state a
claim upon which relief may be granted; or seeks monetary
relief from a defendant who is immune to such relief.
frivolity review, this Court must determine whether the
Complaint raises an indisputably meritless legal theory or is
founded upon clearly baseless factual contentions, such as
fantastic or delusional scenarios. Neitzke v.
Williams, 490 U.S. 319, 327-28 (1989). Furthermore, a
pro se complaint must be construed liberally. Haines v.
Kerner, 404 U.S. 519, 520 (1972). However, the liberal
construction requirement will not permit a district court to
ignore a clear failure to allege facts in his Complaint which
set forth a claim that is cognizable under federal law.
Weller v. Dep't of Soc. Servs., 901 F.2d 387
(4th Cir. 1990).
under 42 U.S.C. § 1983 based on an alleged lack of or
inappropriate medical treatment fall within the Eighth
Amendment's prohibition against cruel and unusual
punishment. Estelle v. Gamble, 429 U.S. 97, 104
(1976). To state a claim under the Eighth Amendment, a
plaintiff must show a “deliberate indifference to
serious medical needs” of the inmate. Id.
“Deliberate indifference requires a showing that the
defendants actually knew of and disregarded a substantial
risk of serious injury to the detainee or that they actually
knew of and ignored a detainee's serious need for medical
care.” Young v. City of Mt. Ranier, 238 F.3d
567, 575-76 (4th Cir. 2001) (citations omitted). “To
establish that a health care provider's actions
constitute deliberate indifference to a serious medical need,
the treatment must be so grossly incompetent, inadequate, or
excessive as to shock the conscience or to be intolerable to
fundamental fairness.” Miltier v. Beorn, 896
F.2d 848, 851 (4th Cir. 1990).
that might be sufficient to support negligence and medical
malpractice claims do not, without more, rise to the level of
a cognizable § 1983 claim. Estelle, 429 U.S. at
106; Grayson v. Peed, 195 F.3d 692, 695 (4th Cir.
1999) (“Deliberate indifference is a very high
standard-a showing of mere negligence will not meet
it.”). To be found liable under the Eighth Amendment, a
prison official must know of and consciously or intentionally
disregard “an excessive risk to inmate health or
safety.” Farmer v. Brennan, 511 U.S. 825, 837
(1994); Johnson v. Quinones, 145 F.3d 164, 167 (4th
Cir. 1998). “[E]ven if a prison doctor is mistaken or
negligent in his diagnosis or treatment, no constitutional
issue is raised absent evidence of abuse, intentional
mistreatment, or denial of medical attention.”
Stokes v. Hurdle, 393 F.Supp. 757, 762 (D. Md.
1975), aff'd, 535 F.2d 1250 (4th Cir. 1976). The
constitutional right is to medical care. No. right exists to
the type or scope of care desired by the individual prisoner.
Id. at 763. Therefore, a disagreement “between
an inmate and a physician over the inmate's proper
medical care [does] not state a § 1983 claim unless
exceptional circumstances are alleged.” Wright v.
Collins, 766 F.2d 841, 849 (4th Cir. 1985) (dismissing
the plaintiff's § 1983 claim against a defendant
physician for allegedly discharging the plaintiff too early
from a medical clinic, as such claim did not rise to the
level of deliberate indifference but would, “at most,
constitute a claim of medical malpractice”).
alleges that for a period of at least almost a year he was
denied necessary medical care that he required for a
condition he has had since birth. Further, Plaintiff alleges
that Defendants' failure to provide medical care and
treatment was the result of an informal policy designed to
deny such care and resulted in not only great physical and
emotional pain, but also additional serious injury and
inadequate access to prison programs and services.
such, to the extent that Plaintiff is attempting to bring a
claim under the Eighth Amendment claim based on allegations
that he is being denied necessary medical care for a serious
medical condition and for violations of the ADA, these
allegations survive initial review as to Defendants Haynes,
Doe, FNU Bennette, and Prison Health Services. See
Saunders v. Horn, No. 95-7844, 960 F.Supp. 893 (E.D.
Penn. Mar. 27, 1997) (failure to provide medically necessary
orthopedic shoes and related medical treatment sufficient to
state a claim under § 1983 where standard issue prison