United States District Court, E.D. North Carolina, Western Division
W. FLANAGAN, UNITED STATES DISTRICT JUDGE
matter is before the court on defendant Tolman's motion
to dismiss (DE 76) pursuant to Federal Rule of Civil
Procedure 12(b)(6) and defendant Fearnot's motion for
summary judgment (DE 68) pursuant to Federal Rule of Civil
Procedure 56. The motions were fully briefed and the issues
raised are ripe for decision. For the reasons that follow,
the court grants the motions.
OF THE CASE
a state inmate proceeding pro se, commenced this action by
filing motions for preliminary injunction and temporary
restraining orders on January 27, 2017, alleging claims for
violations of her civil rights pursuant to 42 U.S.C. §
1983. That same day, plaintiff also filed motion to appoint
counsel. On July 13, 2017, plaintiff filed renewed motion to
appoint counsel. Between July 14, 2017 and August 3, 2017,
plaintiff filed 13 requests for discovery, which included
notices to take defendants' depositions, requests for
production of documents, and requests for admissions. On
August 4, 2017, plaintiff moved for scheduling conference.
August 29, 2017, the court entered order construing
plaintiff's motions for injunctive relief as an attempt
to initiate an action under 42 U.S.C. § 1983. The court
therefore conducted frivolity review of plaintiff's
motions, determined they did not state a claim on which
relief may be granted, and allowed plaintiff to file amended
complaint particularizing her allegations. The court also
denied plaintiff's motions for injunctive relief, to
appoint counsel, and for scheduling conference.
September 7, 2017, plaintiff filed renewed motion to appoint
counsel. On January 19, 2018, plaintiff filed the operative
amended complaint, and another motion to appoint counsel. On
March 13, 2018, plaintiff filed second motion for preliminary
injunction or temporary restraining order.
26, 2018, the court conducted its frivolity review of
plaintiff's amended complaint, dismissed numerous claims
as frivolous or duplicative of a prior action, and allowed
the action to proceed as to plaintiff's claims alleging
excessive force and deliberate indifference to serious
medical needs related to her degenerative disc disease.
Plaintiff alleged these claim against defendant prison
officials Darell Floyd (“Floyd”), Jeremy
McPherson (“McPherson”), Phillip W. Tolman
(“Tolman”), and Robert F. Fearnot
(“Fearnot”). The court also denied
plaintiff's pending motions for appointment of counsel
and injunctive relief.
August 8, 2018, plaintiff filed motion for reconsideration of
the court's July 26, 2018, order. The court denied that
motion on August 15, 2018.
November 6, 2018, defendant Fearnot filed motion for summary
judgment, arguing plaintiff failed to exhaust her
administrative remedies prior to filing this action. In
support, defendant Fearnot relies upon memorandum of law,
statement of material facts, and the following: 1) affidavit
from defendant Fearnot; 2) affidavit from Kimberly Grande,
the director of the North Carolina Department of Public
Safety's (“DPS”) Inmate Grievance Resolution
Board; and 3) DPS records of plaintiff's grievances filed
between September 16, 2016 and January 27, 2017. On February
28, 2019, plaintiff filed response opposing defendant
Fearnot's motion for summary judgment.
November 26, 2018, defendant Tolman filed motion to dismiss
for failure to state a claim, arguing plaintiff's
complaint fails to state a claim for deliberate indifference
to serious medical needs as to him. Plaintiff filed response
in opposition on December 26, 2018.
OF THE FACTS
allegations against defendants Tolman and Fearnot may be
summarized as follows. Plaintiff alleges she suffers from two
degenerated discs in her spine. (Am. Comp. (DE 42) at 120).
Defendant Fearnot, a medical doctor at the Tabor Correctional
Institution, allegedly disregarded plaintiff's complaints
about her back pain and refused her requests for a wheelchair
and a back brace. (Id. at 120-22).
Tolman is a physician assistant at the Tabor C.I.
(Id. at 118). Plaintiff informed defendant Tolman
about her degenerative discs and asked for an increase in her
medications. (Id.). In response, defendant Tolman
stated that “[i]f I do anything I [will] discontinue
[the medications].” (Id.). Defendant Tolman
also denied plaintiff's request for a wheelchair.
(Id.). Plaintiff asked defendant Tolman “how
many times do I have to fall down before you ...