United States District Court, W.D. North Carolina, Charlotte Division
WILLIE T. KELLY, JR., Plaintiff,
GEORGE T. SOLOMON, et al., Defendants.
D. WHITNEY CHIEF UNITED DISTRICT JUDGE.
MATTER comes before the Court on Defendant
Haynes' Motion for Summary Judgment, (Doc. No. 41). Also
pending are Plaintiff's “Motion for a Default
Judgment and Amended Request for Relief for Compensatory
Declaration Injunctive Relief and/or Punitive Damages Motion
of Summary of Judgment, ” (Doc. No. 53),
Plaintiff's Motion to Appoint Counsel, (Doc. No. 54), and
Defendant Haynes' Motion to Stay, (Doc. No. 57) and
Amended Motion to Stay, (Doc. No. 58).
filed a pro se Amended Complaint pursuant to 42
U.S.C. § 1983 that passed initial review on his claims
of excessive force, deliberate indifference to a serious
medical need and retaliation with regards to incidents that
allegedly occurred at the Lanesboro Correctional Institution.
See (Doc. Nos. 15, 18).
December 4, 2018, Defendant Haynes filed a Motion for Summary
Judgment alleging that Plaintiff failed to exhaust his
administrative remedies. (Doc. No. 41). The Court informed
Plaintiff of the applicable legal standard and of the
importance of responding the Motion, and specifically warned
him that the failure to file a timely and persuasive response
would likely lead to the grant of relief that Defendant
Haynes requested. (Doc. No. 43). Plaintiff filed a Response
entitled “Motion for Denial of Summary Judgment,
” (Doc. No. 44), and Defendant Haynes filed a Reply,
(Doc. No. 45).
February 22, 2019, Plaintiff filed a “Motion for a
Default Judgment and Amended Request for Relief for
Compensatory Declaration Injunctive Relief and/or Punitive
Damages Motion of Summary of Judgment, ” (Doc. No. 53),
and on April 3, 2019, he filed a Motion for the Appointment
of Counsel, (Doc. No. 54). On May 14, 2019, Defendant Haynes
filed a Motion to Stay, (Doc. No. 57), that he later amended,
(Doc. No. 58).
Complaint (Doc. No. 15)
Amended Complaint, Plaintiff alleged that he uses a
wheelchair and cane, needed hip replacement surgery that he
ultimately received, and had a wrist injury from an excessive
force incident in 2013. On February 13, 2017, Herring and
Beaver allowed Deese to take Plaintiff's doctor-ordered
wheelchair when Plaintiff returned from visiting a bone
specialist in Raleigh. Deese knew that Plaintiff's
wheelchair was damaged and it was used to help another inmate
who had overdosed, and would no longer roll straight. It was
replaced just over a month later on March 22, 2017. This
inflicted emotional pain and increased pain.
March 8, 2017, there was a violent incident between gang
members in the housing dorm. Plaintiff commented that, if
officers were where they supposed to be on the floor, these
incidents would not happen. Ingram overheard Plaintiff's
comment. Ingram and Kenz escorted Plaintiff to segregation
without a wheelchair or cane with his hands cuffed behind him
while knowing his wrist had been injured in 2013. As a
result, Plaintiff's hip gave out which reinjured him.
Ingram took Plaintiff's cane and, when Plaintiff asked
Laur to be cuffed in front, Laur hit Plaintiff so hard he
pushed Plaintiff onto the bed and Plaintiff defecated
himself. “Staff” let go of Plaintiff while
Plaintiff was shackled and he hit his right upper eye and
caused a knot on his forehead for which he received six
stitches at Anson hospital. (Doc. No. 15-1 at 5). Upon
Plaintiff's return from Anson Hospital after the March 8
incident, Hately put Plaintiff in a suicide cell for five
days without blood pressure medication.
Haynes never saw Plaintiff because Haynes altered his medical
record. Haynes stopped Plaintiff's pain medication and
Plaintiff broke out in a serious rash on his legs, and his
blood pressure was high due to an incident on Anson.
Plaintiff appears to allege that, after his hip replacement
surgery, Nurse William reduced his pain medication without a
Defendants including Defendant Hanyes harassed and threatened
him for, inter alia, exercising his rights through
the prison grievance system and “for testifying for
prison.” (Doc. No. 15-1 at 3).
was transferred to Marion C.I. on May 25, 2017. Beaver
transferred Plaintiff when Plaintiff was supposed to have hip
replacement surgery, which Beaver should have known was
illegal. Marion C.I. does not uphold the ADA, and 95% of the
inmates are gang members. Upon arriving at Marion C.I., he
was made to send his legal grievances home. This adverse
action was so bad that it would stop a reasonable person from
continuing his suit. He had mainly legal papers and rushed
him so he could send them home or they would be destroyed;
“other items, books causal connection.” (Doc. No.
15-1 at 8). Plaintiff was handcuffed behind his back for
recreation and during classes. In the dorm, he was handcuffed
to the table and put in a cell where he could not see the TV,
and kept it dark, putting strain on his eyes. Staff allow
inmates to control lights on phase 1 and 2.
Hicks and Washburn discriminated against Plaintiff on March
13, 2018, and April 7, 2018, by telling him to lockdown when
he had broken no rules, only to be placed in a dark cell.
was shipped to Central Prison for hip replacement and
suffered a mental breakdown “due to smelling toxic
fumes … and Plaintiff was without his property for 7
straight days. No. fresh aid no radio no TV and was confused
and I was giving medication that put me in a [delusional]
state. Defendants gained by reading Plaintiff's
confidential legal material.” (Doc. No. 15-1 at 9).
was charged with a disciplinary infraction for standing up in
his wheelchair to confront Defendant William “that I
have a name….” on April 4, 2017. (Doc. No. 16 at
4). Disciplinary Hearing Officer Williams hid evidence on
April 21, 2017, about an April 4, 2017, incident that would
have cleared Plaintiff of wrongdoing.
claims passed initial review against Defendant Haynes for
deliberate indifference to a serious medical need for
allegedly altering his medical records and stopping his pain
medication, and for retaliation.
seeks declaratory judgment, injunctive relief including
transfer to Maury C.I. for physical therapy, compensatory and
punitive damages, court costs, attorney's fees, and any
additional relief that the Court deems just, proper and
equitable, and a jury trial.
Defendant Haynes' Motion for Summary
Judgment (Doc. No. 41)
Gregory Haynes, M.D., argues that judgment should be entered
in his favor because Plaintiff failed to exhaust his
available administrative remedies before bringing this action
as required by the Prison Litigation Reform Act
(“PLRA”), 42 U.S.C. § 1997e(a)1.
Haynes argues that Plaintiff exhausted five grievances, only
four of which were exhausted prior to June 1, 2017 when
Plaintiff filed the Complaint in this action. None of the
grievances address Plaintiff's allegations against
Defendant Haynes or refer to Defendant Haynes. The exhausted
grievances involve: (1) personal property taken as contraband
in 2014; (2) care related to his knee and hip in 2014; (3) a
request for a wheelchair in 2017; (4) excessive force; and
(5) a request to be removed from segregation and to purchase
stamps. In the Amended Complaint, Plaintiff alleges that
Defendant Haynes was deliberately indifferent for altering
his medical records and stopping his pain medications. The
exhausted grievances failed to put NCDPS on fair notice that
Defendant Haynes was deliberately indifferent to Plaintiff in
regards to the third exhausted grievance addressing a request
for a wheelchair, Plaintiff states that “Dr. Hayes,
” an outside bone specialist from Union County, ordered
that Plaintiff be given a wheelchair and Ultram medication
for a severe hip injury. (Doc. No. 42 at 9). Counsel states
that it does not appear that Plaintiff inadvertently referred
to “Dr. Hayes” instead of “Dr.
Haynes” and further Defendant Haynes is not a bone
specialist in Union County. (Id.). Moreover,
Plaintiff indicated that his grievance would be resolved by a
new wheelchair and Plaintiff makes no allegation against
Defendant Haynes for interfering with his access to a
Response (Doc. No. 44)
argues that he filed grievances addressing inadequate care
and he argues that the medical records show a failure to act.
He specifically refers to the grievance filed on February 13,
2017, activity restrictions, and a health services
utilization review summary. The comments state “seen in
CMC-Union ED on 6/22/13 due to fall” for which he was
examined by Dr. Hassan and a wheelchair was ordered, as was
an evaluation by Carolina Bone and Joint for left wrist pain.
(Doc. No. 44 at 2). Plaintiff claims that he was told by a
previous bone specialist that he needed a left hip
replacement, and his property was destroyed on October 11,
2013 which violated due process. (Id.). On September
20 and 25, 2013, Defendant overlooked bone specialist and
Anson County Hospital orders that Plaintiff not be housed
upstairs, but this was rejected by Dr. Anthony Searles. (Doc.
No. 44 at 2). Plaintiff kept a paper trail because, on
February 13, 2017, Plaintiff was placed in fear of bodily
injury and harassment. Plaintiff “[n]ever got to see
M.D. G. Haynes after giving information to bone specialist
Dr. Jaffey to conduct (L) hip replacement, a major switch by
M.D. G. Haynes that bone specialist at Chapel Hill Hospital
was going to conduct.” (Doc. No. 44 at 3). On March 8,
2017, “Plaintiff get assaulted. Never saw M.D. nor has
he presented evidence medical technician found negligent by
altering medical records. Failure to act.”
(Id.). Plaintiff argues that the chief medical
officer of the prison system could be liable where he failed
to correct the failures of medical tracking, which resulted
in surgery on October 21, 2017 that was first approved on
August 15 by Dr. Jaffe “[a]nd, delaying examination and
treatment M.D. G. Haynes inadequate treatment or
has attached to his Response a Motion for injunctive relief
and temporary restraining order, (Doc. No. 44 at 4), in which
he argues that he has continued to be placed in danger of
bodily harm, that he is the victim of a campaign of
intimidation, and that he continues to receive deliberately
indifferent medical care. He asks for an immediate ...