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Kelly v. Solomon

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

May 23, 2019

WILLIE T. KELLY, JR., Plaintiff,
GEORGE T. SOLOMON, et al., Defendants.



         THIS 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).

         I. BACKGROUND

         Plaintiff 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).

         On 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).

         On 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).

         (1)Amended Complaint (Doc. No. 15)

         In his 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.

         On 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.

         Dr. 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 doctor's approval.

         Various 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).

         Plaintiff 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.

         Defendants 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.

         Plaintiff 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).

         Plaintiff 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.

         Plaintiff's 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.

         Plaintiff 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.

         (2) Defendant Haynes' Motion for Summary Judgment (Doc. No. 41)

         Defendant 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.

         Defendant 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 any way.

         With 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 wheelchair.

         (3)Plaintiff's Response (Doc. No. 44)

         Plaintiff 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 diagnosis.” (Id.).

         Plaintiff 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 ...

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