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Jasmaine v. Floyd

United States District Court, E.D. North Carolina, Western Division

August 10, 2019

JENNIFER ANN JASMAINE f/k/a DUANE LEROY FOX, Plaintiff,
v.
DARELL FLOYD, JEREMY McPHERSON, PHILLIP W. TOLMAN, and ROBERT F. FEARNOT, Defendants.[1]

          ORDER

          LOUISE W. FLANAGAN, UNITED STATES DISTRICT JUDGE

         This 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.

         STATEMENT OF THE CASE

         Plaintiff, 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.

         On 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.

         On 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.

         On July 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.

         On 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.

         On 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.

         On 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.

         STATEMENT OF THE FACTS

         Plaintiff's 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).

         Defendant 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 ...


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