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Battle v. N.C. Department of Public Safety-Prisons

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

June 6, 2019




         THIS MATTER comes before the Court on pro se Plaintiff's “Letter of Declaration, ” (Doc. No. 42), Motion to Amend Complaint Adding Defendants, (Doc. No. 70), Motions for the Appointment of Counsel, (Doc. Nos. 76, 93), and Motion to Compel Discovery, (Doc. No. 86), and on Defendant William Jones' Motion to Dismiss, (Doc. No. 49), Defendant Keith D'Amico's Motion for Summary Judgment, (Doc. No. 64), and Plaintiff's Defendant Gary Sobel's Motion to Dismiss, (Doc. No. 71).

         I. BACKGROUND

         Plaintiff filed a pro se Amended Complaint, (Doc. No. 14), pursuant to 42 U.S.C. § 1983 that passed initial review on his claims against Defendants Bailey, Bell, Clark, Coble, Crisp, D'Amico, Geouge, Hall, Hensley, Jones, Litaker, Porshia, Quintero, Swink, Tate, Taylor, Thompson, and Waltz for deliberate indifference to a serious medical need; against Defendants Bailey, Geouge, Hensley, and Porshia for retaliation; and against supervisory Defendants Anderson, Beaver, Chapman, Glick, Penland, Pittman, Taylor, and Watson for failing to stop their subordinates' misconduct. (Doc. No. 32).

         (1) Amended Complaint[1] (Doc. No. 14)

         Construing the Amended Compliant liberally and accepting the allegations as true, Plaintiff has suffered from a severe latex allergy since 2014, for which he had a medical “490” card when he arrived at Alexander C.I. (Doc. No. 14 at 15). The allergy precludes Plaintiff from using the plastic/nylon mats or pillows that prisons provide for bedding. Plaintiff has had a doctor's order for cloth-only mattresses and pillows since 2014. Using plastic/nylon mats and pillows causes skin reactions including severe pain, redness, bruising, itching, irritation, cracking, and peeling with sores. His allegations cover incidents that allegedly occurred at Alexander C.I., Avery-Mitchell C.I., and Albemarle C.I.

         Plaintiff alleges that, at Avery-Mitchell C.I. in November 2015, Defendant D'Amico ordered a patch test in which a piece of latex was taped to Plaintiff's left arm despite Plaintiff's prior diagnosis with a latex allergy in an attempt to test the allergy for himself, which he is not qualified to do. The latex remained on Plaintiff's skin for hours which eventually caused Plaintiff to call a medical emergency due to pain, injury, and scarring.

         At Albemarle C.I. on November 24, 2016, Defendant Coble touched Plaintiff's stomach while wearing latex gloves despite knowing about Plaintiff's severe latex allergy. His actions caused Plaintiff to have a severe skin reaction on his stomach are of pain, redness, and bruising.

         At Alexander C.I., Defendant Jones ignored Plaintiff's prior diagnosis of a latex allergy and the need for cloth mattresses and pillows. He stopped “all treatment and precautions” that were previously prescribed by other physicians. (Doc. No. 14 at 17). On May 30, 2018, Plaintiff had an appointment with Defendant Jones where he reviewed the dermatology reports confirming his latex allergy, Plaintiff's medical notes, and a “490” showing that Plaintiff needs cloth mattresses and pillows. Defendant Jones renewed Plaintiff's “490” for cloth mattresses and pillows. However, later that evening, a nurse informed Plaintiff that Jones changed the “490” at the request of Defendants Hall and Bell, and removed all information about Plaintiff's latex allergy from his medical “490.”

         As injury, Plaintiff alleges that, when he is touched during searches with latex gloves that have caused severe skin reactions with pain, redness, bruising, itching, cracking, and peeling with sores. This also happens when he is made to sleep on plastic/nylon mattresses and pillows. He then states verbatim “Given triamcinolone acetonide ointment USP, 0.1%, I require cloth mattresses and pillows to use as bedding, however Alexander C.I. has refused to order them for me.” (Doc. No. 14 at 14).

         Plaintiff requests emergency injunctive relief, compensatory damages, punitive damages, and any additional relief the Court deems just, proper, and equitable.

         (2) Defendant William Jones, M.D.

         (A) Motion to Dismiss (Doc. No. 49)

         Defendant Jones argues that Plaintiff's claims against him should be dismissed pursuant to Rule 12(b) of the Federal Rules of Civil Procedure because Plaintiff failed to exhaust his available administrative remedies prior to bringing this action as required by the Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a).

         Defendant Jones argues that Plaintiff filed the original Complaint on June 21, 2017 and failed to name Defendant Jones as a Defendant. The Amended Complaint was filed on June 26, 2018 and included a claim against Defendant Jones. The allegations against Defendant Jones stem from one interaction with Plaintiff on May 30, 2018 at Alexander C.I. None of the exhausted grievances, which involve issues that occurred in 2015 and 2016 at Avery-Mitchell C.I. and Albemarle C.I. provided notice to Defendant Jones or NCDPS about the basis of the lawsuit or allegations against him. Plaintiff has only submitted one Unit Grievance from Alexander C.I. which was submitted after Plaintiff filed his Complaint and it makes no reference to a claim against Defendant Jones. Plaintiff's exhaustion of three grievances before filing this suit establish that the administrative remedy procedure was available to Plaintiff and that he was not thwarted from using the administrative remedy procedure.

         (B) Roseboro Order (Doc. No. 58)

         The Court notified Plaintiff of the applicable legal standards, his burden to respond to Defendants' Motion, and the consequences of failing to do so.

         (C) Plaintiff's Responses (Doc. Nos. 62, 82)

         Plaintiff argues that he properly exhausted the available administrative remedies with regards to his claims against Defendant Jones. He claims that he exhausted Grievance Number 07438, with Step 1 being received on May 31, 2018, Step 2 being received on May 31, 2018, and Step 3 being received on June 26, 2018, which completed all available appeals and satisfies the PLRA.

         (D) Defendant Jones' Replies (Doc. Nos. 63, 83)

         Assuming that Plaintiff exhausted Grievance Number 07438 through Step 3 of the administrative remedy process, Grievance Number 07438 does not reference any alleged wrongdoing by Defendant Jones and, in any event, Step 3 was not completed until July 11, 2018, which is after Plaintiff filed the Complaint and Amended Complaint in this case. This case should therefore be dismissed as to Defendant Jones.

         (3) Defendant Keith D'Amico

         (A) Motion for Summary Judgment (Doc. No. 64)

         Defendant D'Amico argues that he should be granted summary judgment because the pleadings and evidence show that he was not deliberately indifferent to Plaintiff's serious medical needs because he did not act with a culpable state of mind or proximately cause injury to Plaintiff; he is entitled to qualified immunity because his actions were reasonable; the Eleventh Amendment bars Plaintiff's claims for compensatory and punitive damages against Defendant D'Amico in his official capacity; Plaintiff's allegations do not support an award of punitive damages against Defendant D'Amico; and Plaintiff's Amended Complaint fails to comply with Rule 9(j) of the North Carolina Rules of Civil Procedure.

         (B) Roseboro Order (Doc. No. 67)

         The Court notified Plaintiff of the applicable legal standards, his burden to respond to Defendants' Motion, and the consequences of failing to do so.

         (C) Response (Doc. No. 82)

         Plaintiff argues that Defendant D'Amico conducted a latex allergy patch test on Plaintiff which he was not qualified to carry out, rather than referring Plaintiff to a dermatologist. He claims that, by taping latex to Plaintiff's skin for hours and ignoring his plight, he required Plaintiff to declare a medical emergency and caused him pain, injury, and scarring. He claims that Defendant D'Amico also discontinued medication (triamcinolone acet 0.1%) that had been prescribed by Dr. Umsei and P.A. Hendricks on November 18, 2015 prior to Plaintiff's arrival at Avery-Mitchell C.I. without Plaintiff's knowledge. On November 18, 2015, P.A. Katherine Caggiano concluded that Plaintiff was likely allergic to latex and that he should not come into direct contact with it. Defendant D'Amico admits that he was aware of Plaintiff's allergic reaction to latex and had no reason to order a patch test when a dermatology consultation had been requested due to the likelihood of injury to Plaintiff when he comes into contact with latex. Plaintiff has demonstrated that genuine disputes of material fact exist and that Defendant D'Amico is not entitled to qualified immunity and his claims support compensatory and punitive damages. Rule 9(j) of the North Carolina Rules does not apply to this Eighth Amendment claim of deliberate indifference.

         (D) Defendant D'Amico's Reply (Doc. No. 84)

         Neither the Amended Complaint nor Plaintiff's Response provide any basis to conclude that Defendant D'Amico was deliberately indifferent to a serious medical need of Plaintiff's. While Plaintiff alleges that Defendant D'Amico disregarded Plaintiff's prior latex allergy diagnosis, Plaintiff did not have a latex allergy when he saw Defendant D'Amico in November 2015; his latex allergy test was negative on August 10, 2015 and there was no positive test result for a latex allergy in his medical chart. Plaintiff also had a negative reaction to the patch test that Defendant D'Amico ordered on November 4, 2015 and was performed by nurses on November 9, 2015, and Dr. Jones concluded that Plaintiff was not allergic to latex. Therefore, there is no basis to conclude that Defendant D'Amico knew of and intentionally disregarded a serious medical need. Further, Defendant D'Amico specifically ordered that Plaintiff remove the patch test if irritation began and therefore did not ignore Plaintiff's condition during the patch test. To the extent that Plaintiff expresses disagreement with Defendant D'Amico's medical decisions and treatments, his disagreement with the course of care is not actionable and Plaintiff has failed to provide the required expert certification to proceed on a claim of medical negligence pursuant to Rule 9(j). Plaintiff has failed to include substantive arguments to address Defendant D'Amico's assertions of qualified immunity, Eleventh Amendment bar, and lack of support for punitive damages.

         (4) Defendant Gary Sobel, D.O.[2]

         (A) Motion to Dismiss (Doc. No. 71)

         Defendant Sobel argues that the claims against him should be dismissed because Plaintiff fails to state a claim, failed to comply with Rule 9(j) of the North Carolina Rules of Civil Procedure, and failed to exhaust the available administrative remedies.

         With regards to exhaustion, Defendant Sobel argues that the three grievances that Plaintiff exhausted do not involve Plaintiff's claim against Defendant Sobel for the care he provided on November 24, 2016. Of the six additional grievances Plaintiff filed, one of them does refer to Defendant Sobel's care but it was not exhausted through the entire appeal process.

         The allegations against Defendant Sobel fail to state a claim upon which relief can be granted because the only allegations are that Defendant Sobel examined Plaintiff while wearing latex gloves on November 24, 2016. Plaintiff fails to adequately allege that Defendant Sobel knew about the latex allergy or that any such allergy existed. At most, Plaintiff claims medical negligence but Plaintiff failed to comply with Rule 9(j) by providing a proper expert certification.

         (B) Roseboro Order (Doc. No. 73)

         The Court notified Plaintiff of the applicable legal standards, his burden to respond to Defendants' Motion, and the consequences of failing to do so.

         (C) Response (Doc. No. 79)

         Plaintiff alleges that Defendant Sobel “misus[ed] his power and judgment” by touching Plaintiff's stomach area while wearing latex gloves, “knowing that [Plaintiff] had a severe allergy to latex.” (Doc. No. 49 at 4). Defendant Sobel's actions caused Plaintiff to have severe skin reactions that required medication to help stop the pain, redness, and bruising. Defendant Sobel ignored Plaintiff's plight about the severity of the allergy, including disregarding Plaintiff's prior diagnoses and treatment of the latex allergy that exposed him to an unreasonable risk of serious harm. Defendant Sobel is not entitled to qualified immunity and the claims against him are not barred by the statute of limitations. Punitive damages area available because Defendant Sobel refused to err on the side of caution and wore latex gloves while examining Plaintiff while Plaintiff lay on the examination table with his eyes closed and in pain. Plaintiff was at imminent risk of serious and irreparable harm and Defendant Sobel knew he was doing something dangerous that was likely to hurt Plaintiff. Defendant Sobel and Plaintiff had previously discussed Plaintiff's severe latex allergy. This qualifies for punitive damages. Defendant Sobel ignored well-qualified doctors who chose to err on the side of caution and follow he recommendations that they had made, and instead chose to touch Plaintiff's stomach with gloves on before Plaintiff recognized the danger.

         (D) Defendant Sobel's Reply (Doc. No. 80)

         Plaintiff's allegations do not indicate that Defendant Sobel acted with deliberate indifference and it is questionable whether Plaintiff even had a latex allergy. Plaintiff's Response characterizes his claim as one of medical malpractice, which subjects this case to dismissal for failure to comply with Rule 9(j). Plaintiff has also failed to plausibly allege that he exhausted his administrative remedies.

         (5) Evidence[3]

         (A) Affidavit of Keith D'Amico, PA (Doc. No. 65)

         Defendant D'Amico is a licensed Physician's Assistant. He was contracted to provide care as a PA at Avery-Mitchell C.I. during the relevant times and he had no involvement with Plaintiff while Plaintiff was housed at any other institutions. D'Amico reviewed Plaintiff's medical records and has personal knowledge of Plaintiff's case.

         If an inmate wants an appointment in a medical clinic without a regularly-scheduled follow-up appointment, he must submit a Sick Call Appointment Request containing his complaints. The Sick Call Appointment Request is reviewed by a triage nurse who reviews the complaints, triages them, and schedules an appointment with a nurse. At the Sick Call Appointment, the nurse assesses the inmate and records his complaints as well as the nurse's observations, assessments, and plans. The nurse determines at the appointment whether the inmate or his chart is to be seen by another healthcare provider and makes such referrals, if necessary. An inmate is not scheduled for an appointment with the physician or a mid-level provider such as a PA unless he is referred by the nurse. The inmate's chart is not submitted for review unless the nurse refers the chart for review by the physician or a mid-level provider such as a PA. Generally, inmates not seen or examined by NCDPS physicians or mid-level providers in the absence of objective findings documented by the nursing staff that relate to the inmate's subjective complaints in the Sick Call Appointment Request.

         On April 14, 2015, Plaintiff complained that he broke out in an itchy rash whenever he wore latex gloves. A Radioallergosorbent (“RAST”) test was performed on April 18, 2015. Plaintiff tested negative to a latex allergy and was informed of the results on April 21, 2015.

         On August 10, 2015, Plaintiff presented to Dr. Joseph Umesi with a rash that allegedly started on his hands after exposure to latex. Dr. Umesi noted Plaintiff's negative BAST result but, out of an abundance of caution, he ordered Plaintiff non-latex shower shoes, permission to stand on blue chunks pads while showering, and use non-latex gloves. Dr. Umesi submitted a Utilization Board (“UR”) Request for a dermatologist on August 31, 2015 due to isolated large papules on Plaintiff's neck, chest, and back that were unresponsive to topical steroids and antihistamines.

         On October 12, 2015, D'Amico conducted a routine review of Plaintiff's chart for medication renewal and medical duty status. D'Amico renewed Plaintiff's non-latex status and ordered a cloth mattress, extra socks, non-latex shoes, and blue chunks to stand on while showering. On October 13, 2015, D'Amico submitted a rush UR Request for non-latex shower shoes for Plaintiff.

         On November 4, 2015, D'Amico saw Plaintiff in connection with a nurse's referral from an October 27, 2015 Sick Call Appointment, during which Plaintiff complained about his Clobetasol cream he was using for a rash and requested something else for his skin condition. According to Plaintiff, nothing that medical had in stock could help him and he requested to see a provider.

         D'Amico reviewed Plaintiff's chart on November 4, 2015 and noted that the UR request for non-latex shower shoes was denied because of the negative RAST test result. Concerned that irritation was going to be a continued problem for Plaintiff for the duration of his sentence, D'Amico ordered a patch test “to verify his latex sensitivity.” (Doc. No. 65 at 4). D'Amico's instructions to the nurse was: “cut a 3mm square piece of latex glove - measure, don't guess. Tape to forearm. Place in holding for the first 30m (minutes) after placement and recheck. If without reaction, evaluate 24 hours later. Instruct patient to remove if irritation starts before.” (Doc. No. 65 at 4).

         The latex sensitivity test was performed on Plaintiff on November 9, 2015. The Nurse taped a 3mm square of latex to Plaintiff's left forearm and he was monitored for a reaction. Krystal D. Kanipe, LPN, noted that there was no reaction 30 minutes after placement of the latex. Ellen D. Hayes, RN then charted “surrounding skin normal including areas that silk tape touched. Two areas resembling the shape of nail marks with the largest being towards outer aspect and next nail inward. Tape securing area is visibly loose to accommodate such action. Patient admits he has rubbed the area. No. swelling or elevation of skin patch area noted. Mr. D'Amico consulted and confirms this is not a true reaction.” (Doc. No. 65 at 4).

         D'Amico then consulted Plaintiff about his negative RAST test and signs of negative reaction to the patch test. D'Amico explained to Plaintiff that, due to the negative test results, he most likely did not have a latex allergy. Rather, D'Amico believed that it was possible he had an allergy to one of the other materials used in the shower shoes. D'Amico advised Plaintiff that the plan of care was for him to wear shower shoes for one minute starting that night and then double the time worn daily as he increasingly tolerated the material.

         D'Amico conducted a routine chart review on November 18, 2015. He noted that the UR Board had approved the referral to a dermatologist and D'Amico ordered that an appointment be set.

         On November 24, 2015, Plaintiff was seen by Katherine Caggiano, PA at Boone Dermatology Clinic. Caggiano recommended that Plaintiff avoid latex completely. She did not review or comment on the negative RAST test. The same day, D'Amico reviewed Caggiano's note and placed another UR Request for non-latex shoes for Plaintiff. D'Amico told the UR Board that Plaintiff needed protection in the shower due to multiple skin break downs on his feed and told them to ignore the prior negative latex test. He reiterated that his request for non-latex shower shoes had been previously denied and that immediate response was required.

         On February 5, 2016, D'Amico reviewed Plaintiff's chart. Based on the review, D'Amico entered renewal orders for a non-latex cloth mattress, use of non-latex gloves, permission to use extra socks to wear while showering, and issuance of a special shower shoe through the end of his sentence.

         During his treatment of Plaintiff, D'Amico conducted chart reviews and physical examinations, ordered and renewed his prescriptions, ordered and reviewed diagnostic tests and other treatment modalities when Plaintiff's various medical conditions required it, and referred him to physicians when necessary. Plaintiff's RAST test for an allergy to latex was negative in April 2015. Due to the negative test, the pharmacy denied the request for non-latex shower shoes. Due to Plaintiff's continued complaints of irritation, D'Amico re-tested Plaintiff's latex sensitivity with a monitored patch test in October 2015, which also came back negative. The next month, Plaintiff was referred to and seen by a dermatologist who suggested avoidance of latex. That same day, D'Amico promptly submitted a UR Request for non-latex shower shoes based on the dermatologist's recommendations and instructed the pharmacy to ignore prior negative latex allergy results.

         At no time did D'Amico disregard the symptoms and/or concerns that Plaintiff presented. He took appropriate action and made professional decisions and treatment recommendations/ referrals based on Plaintiff's complaints and test results. D'Amico's clinical decisions were not made for the purpose of causing harm or injury to Plaintiff. D'Amico did not ignore Plaintiff's medical needs or deny him any necessary treatment or diagnoses for his latex allergy. D'Amico attentively ordered another allergy test to confirm Plaintiff's belief that he was allergic to latex despite the negative RAST test. D'Amico denies Plaintiff's allegations about D'Amico's care and treatment and denies that he was deliberately indifferent to Plaintiff's alleged latex allergy.

         Based on his education, training and experience as a PA, D'Amico is qualified to order an allergy test including a patch test and diagnose a latex allergy. (Doc. No. 65 at 7).

         (B) Medical Records

         4/14/15 Clinical Encounter (PA Hendricks); Plaintiff complains of itchy rash whenever he wears latex gloves, says he thinks he is allergic to latex; RAST test ordered (Doc. No. 65-2 at 2)

         4/16/15 NCDPS Allergy Form Lab negative for latex allergy (Doc. No. 65-2 at 7)

         8/10/15 Clinical Encounter (Dr. Umesi); Plaintiff presents with rash that started on his hands after exposure to latex; PA Hendricks gave a 490 form for non-latex gloves; RAST was negative but he breaks out each time he touches latex; rash is up his arms, chest and back; new medication orders for rash; follow up at Sick Call as needed (Doc. No. 65-3 at 2)

         8/31/15 Consultation/Referral Form (Dr. Umsei); appointment at Boone Dermatology 11/24/15 for papules on neck, chest and back that are not responsive to topical steroids and antihistamines (Doc. No. 65-3 at 5)

         UR Request dermatology consultation approved (Doc. No. 65-3 at 6)

         10/12/15 Medical Duty Status (PA D'Amico); no latex mattress, cloth only; allow Plaintiff to use non-latex gloves due to latex allergy until EOS; Plaintiff has latex allergy, causing severe skin reactions, cannot wear state-provided shower shoes for any length of time; may have extra socks for showering; may have blue chunks to stand on while showering (Doc. No. 65-4 at 2)

         10/13/15 UR Request (PA D'Amico) non-latex shower shoes; Plaintiff has severe latex allergy; ignore RAST test (Doc. No. 65-4 at 3)

         10/27/15 Clinical Encounter (RN Hughes); Plaintiff requests a different allergy cream; appointment scheduled on 11/2/15 with “Physician Extender” and chart review with physician; cosign/ review by D'Amico (Doc. No. 65-5 at 2)

         11/4/15 Clinical Encounter - Administrative Note (PA D'Amico); pharmacy states they could not source a latex free shower shoe; Plaintiff's latex lgE is negative; will verify latex sensitivity as this will be a concern for the duration of his sentence Nursing Instructions: “Cut a 3mm square piece of latex glove, measure, don't guess. Tape to forearm. Place in holding for the first 30 minutes after placement and recheck. If without reaction, evaluate 24 hours later. Instruct patient to remove if irritation starts before.” (Doc. No. 65-6 at 2)

         11/9/15 Clinical Encounter (RN Hayes); Plaintiff says “I am feeling itchy and my skin is burning and stinging. I have tried not to scratch it. I have rubbed it through the bandage.” Surrounding skin normal, two areas resemble the shape of a nail, no swelling or elevation of skin patch area noted; “Mr. Damico consulted and confirms this is not a true reaction.” Follow-up at sick call as needed, return immediately if condition worsens, discharged to housing unit. “Counseled by Mr. Damico about negative rast and signs of negative reaction. Advised for plan of care to wear shower shoes for one minute starting tonight and double time ...

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