United States District Court, W.D. North Carolina, Asheville Division
D. Whitney Chief United States District Judge.
MATTER is before the Court on initial review of
pro se Plaintiff's Amended Complaint, (Doc. No.
12). Plaintiff is proceeding in forma pauperis.
(Doc. No. 9).
se Plaintiff filed a civil rights suit pursuant to 42
U.S.C. § 1983, addressing incidents that allegedly
occurred at the Mountain View Correctional Institution in
September 2018. He names Defendants Physician Assistant
Jeffrey Dean Patane, Licensed Practical Nurse Keisha W.
O'Keefe, and Registered Nurse Tamara L. Allen in their
the Amended Complaint liberally and accepting it as true,
Plaintiff suffers from idiopathic ischemic stuttering
priapism, a serious and painful medical condition. Plaintiff
alleges that, between September 5 and 7, 2018 Plaintiff had a
prolonged erection and urinary retention for about 24 hours
which caused him extreme pain and rendered him unable to
sleep, eat, exercise, read, or walk.
Patane knew that Plaintiff was suffering and experiencing
severe and extreme pain yet left him in his housing cell for
more than 10 hours without any medical treatment or pain
medication. Defendant Patane refused to come into
Plaintiff's cell or have him brought to the medical exam
room to examine and evaluate him for urinary retention and
stuttering priapism or provide him with treatment or send him
to the local ER. Patane prescribed Amitrypteline - which is
not a pain medication - on September 6 but discontinued the
order on September 7 and Plaintiff never received or took
this medication. Patane also refused to give Plaintiff any
medication to lower his blood pressure.
O'Keefe refused to examine and evaluate Plaintiff for
urinary retention and stuttering priapism and refused to
refer her to the medical provider who was on-site in the
medical department. O'Keefe falsified his medical records
which seriously interfered with his medical treatment.
Plaintiff's blood pressure was 142/124 but O'Keefe
falsely recorded it as 148/106 in Plaintiff's medical
chart. She also inaccurately recorded the amount of time
since he had urinated. She wrote “other” instead
of recording the specific areas where Plaintiff was
experiencing pain. She falsely put in the chart that he
refused to be assessed and that the swelling went down on its
own. O'Keefe also falsely stated that Plaintiff was not
in distress. Plaintiff thinks the false statements are
O'Keefe's way of carrying out her promise that
Plaintiff would not win in the suit that Plaintiff said he
was going to file against her. O'Keefe left him in his
cell to continue to suffer.
Allen was present in the cell during Plaintiff's
interaction with O'Keefe. Defendant Allen refused
verbally and physically to step in and override O'Keefe,
whom she outranked, or examine and evaluate Plaintiff herself
when O'Keefe's refused to examine and evaluate him.
O'Keefe was smiling when she told Plaintiff she would not
examine and evaluate him and refused to refer Plaintiff to
the medical provider on site. Allen had the authority to step
in and examine and evaluate Plaintiff when O'Keefe
refused but Allen did not do anything. When Plaintiff asked
Allen whether she was going to examine and evaluate him after
O'Keefe's refusal, Allen smiled and shook her head
and said no. Allen left Plaintiff in his cell untreated to
let him suffer. The incidents between Plaintiff and Defendant
Patane were witnessed by Nurse Tommy Hughes and the incidents
between Plaintiff and Defendants O'Keefe and Allen were
witnessed by Correctional Officer Phillips.
actions and inactions caused Plaintiff extreme pain and nerve
and tissue damage. Plaintiff was finally taken to a local ER
where he was given a catheter, bloodwork, and morphine.
seeks $275, 000 in punitive damages from each Defendant and
any other relief the Court deems just, proper and equitable.
STANDARD OF REVIEW
Plaintiff is a prisoner proceeding in forma
pauperis, the Court must review the Complaint to
determine whether it is subject to dismissal on the grounds
that it is “(i) frivolous or malicious; (ii) fails to
state a claim on which relief may be granted; or (iii) seeks
monetary relief against a defendant who is immune from such
relief.” 28 U.S.C. § 1915(e)(2)(B). In its
frivolity review, a 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). A complaint
should not be dismissed for failure to state a claim
“unless ‘after accepting all well-pleaded
allegations in the plaintiff's complaint as true and
drawing all reasonable factual inferences from those facts in
the plaintiff's favor, it appears certain that the
plaintiff cannot prove any set of facts in support of his
claim entitling him to relief.'” Veney v.
Wyche, 293 F.3d 726, 730 (4th Cir. 2002)
(quoting Edwards v. City of Goldsboro, 178 F.3d 231,
244 (4th Cir. 1999)).
pro se complaint must be construed liberally.
Haines v. Kerner, 404 U.S. 519, 520 (1972); see
also Smith v. Smith, 589 F.3d 736, 738 (4th
Cir. 2009) (“Liberal construction of the pleadings is
particularly appropriate where … there is a pro se
complaint raising civil rights issues.”). 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). A pro se
complaint must still contain sufficient facts “to raise
a right to relief above the speculative level” and
“state a claim to relief that is plausible on its
face.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555, 570 (2007); see Ashcroft v. Iqbal, 556
U.S. 662 (2009) (the Twombly plausibility standard
applies to all federal civil complaints including those filed
under § 1983). This “plausibility standard
requires a plaintiff to demonstrate more than a sheer
possibility that a defendant has acted unlawfully.”
Francis v. Giacomelli, 588 F.3d 186, 193
(4th Cir. 2009) (internal quotation marks
omitted). He must articulate facts that, when accepted as
true, demonstrate he has stated a claim entitling him to