United States District Court, W.D. North Carolina, Statesville Division
D. WHITNEY CHIEF UNITED STATES DISTRICT JUDGE.
MATTER is before the Court on a motion to dismiss,
(Doc. No. 30), filed by Defendant Marta M. Kalinski, M.D.,
pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure. Defendant is represented by Elizabeth McCullough
and Madeleine Pfefferle of Young, Moore and Henderson, P.A.
Plaintiff Arthur Jay Goulette is a North Carolina prisoner
incarcerated at Alexander Correctional Institution in
Taylorsville, North Carolina. Plaintiff filed this action on
March 16, 2018, pursuant to 42 U.S.C. § 1983, naming as
Defendants (1) Marta Kalinski, a doctor at Alexander at all
relevant times (“Dr. Kalinski”); and (2) Benjamin
M. Anderson, the Assistant Superintendent for Programs II at
Alexander at all relevant times. Plaintiff amended his
Complaint on May 24, 2018. (Doc. No. 12). Plaintiff brought
this action attempting to allege claims for deliberate
indifference to a serious medical need, medical malpractice,
retaliation, and conspiracy against Dr. Kalinski relating to
medical care she provided to him while he was incarcerated at
Alexander Correctional Institution (“Alexander”)
from May 2016 through May 24, 2018. (Doc. No. 12). Plaintiff
requests compensatory damages, punitive damages, and
injunctive relief in the form of occupational therapy,
physical therapy, surgeries on his neck, back, and legs,
treatment for chronic migraines, and to be housed at Central
Prison in the medical unit. (Id.).
August 2, 2018, the Court conducted a frivolity review and
allowed Plaintiff's deliberate indifference claim to
proceed. (Doc. No. 15). Dr. Kalinski has now filed the
pending motion to dismiss under Rule 12(b)(6). On December
18, 2018, this Court entered an order giving Plaintiff notice
of his right to respond to the motion to dismiss. (Doc. No.
33). Plaintiff filed his response to the motion to dismiss,
Defendant filed a Reply, and this matter is ripe for
disposition. (Doc. Nos. 36, 37).
was transferred from Central Prison in Raleigh, North
Carolina, to Alexander Correctional Institution
(“Alexander”) on May 6, 2016. (Doc. No. 12-1 at
1). While incarcerated at Central Prison, Plaintiff was
receiving medical treatment for migraines and neck, back, and
hand injuries. (Id.). Regarding his hand, Plaintiff
was being provided occupational therapy to determine whether
he would benefit from surgical intervention. (Id.).
Once transferred to Alexander, Dr. Kalinski decreased and
discontinued the orders entered by the Central Prison
doctors. (Id.). Specifically, Dr. Kalinski
discontinued an order for an MRI and occupational therapy.
December 4, 2016, Plaintiff sustained injuries to his neck,
back, pelvis, hips, and right hand when he fell due to water
from a pipe burst. (Id.). The following day,
Plaintiff was seen by a nurse in an emergency encounter
during which the nurse reported to a physician assistant that
Plaintiff should have been taken to the hospital the previous
day. (Id. at 1-2). The physician assistant
instructed the nurse that Plaintiff would need to be seen by
Dr. Kalinski before he could be taken to the hospital.
(Id. at 2). Plaintiff, however, was not seen by Dr.
Kalinski and was not taken to the hospital despite submitting
sick calls regarding his alleged injuries and allegedly being
referred to Dr. Kalinski from those sick calls.
(Id.). Plaintiff does not allege, however, that Dr.
Kalinski was aware of the sick calls or that she refused to
fell on January 22, 2017, due to a faulty sink in his cell.
(Id. at 3). Plaintiff was knocked unconscious and
taken to Catawba Valley Medical Center Hospital, where he was
treated by Dr. Jon A. Giometti. (Id.). Dr. Giometti
referred him back to his primary care provider within the
North Carolina Department of Public Safety
(“NCDPS”). (Id.). Upon his return from
the hospital, Plaintiff was not reevaluated in connection
with the injuries he sustained. (Id.). On September
22, 2017, Plaintiff's physical therapist informed him
that an MRI performed on his cervical spine in February
revealed that he had fractures in his neck. (Id. at
4). Plaintiff alleges that Defendants displayed blatant
disregard by not informing him of the results of that MRI.
his Amended Complaint, Plaintiff alleges that Dr. Kalinski
discontinued and decreased treatment for his chronic pain and
injuries. Specifically, Dr. Kalinski decreased his pain
medications on January 19, 2017. (Id. at 3). Dr.
Kalinski discontinued his occupational therapy on June 27,
2017, which had been previously approved by the Utilization
Review Board and prescribed by his Central Prison doctors.
(Id.). Dr. Kalinski again discontinued his
occupational therapy in January 2018. (Id. at 4).
Defendants decreased and discontinued his prescription for
Tramadol. (Id. at 5).
also alleges that appointments scheduled with Dr. Kalinski
had to be rescheduled due to emergencies on six occasions.
(Id. at 4). As a result of the alleged delay in
treatment, Plaintiff has permanent injuries, including nerve
damage, partial paralysis, prolonged neck and back pain,
dizziness, recurring chronic migraines, difficulty
multitasking, narrowing disc in his lower back, sciatica,
pain and spasms in his back, and pain in his legs.
(Id.). Additionally, Plaintiff was assaulted twice
as a result of Dr. Kalinski failing to put him in a medical
housing unit and told that he was faking his injury.
(Id at 5-6).
on the above factual allegations, Plaintiff purports to bring
a claim against Dr. Kalinski for deliberate indifference to
serious medical needs under the Eighth Amendment to the U.S.
Constitution. Plaintiff also purports to be bringing a state
law claim for medical malpractice. Plaintiff further alleges
that Dr. Kalinski retaliated against him in delaying his
treatment because he has a lawsuit pending against NCDPS.
(Doc. No. 12 at 4). Finally, Plaintiff also purports to bring
a conspiracy claim against Dr. Kalinski by alleging that, on
January 19, 2017, Dr. Kalinski decreased his pain medications
in conspiracy with Defendant Anderson and other medical and
custody staff. (Id.). Plaintiff also alleges he fell
on December 4, 2016, due to a busted pipe and on January 22,
2017, due to a faulty sink in his cell. (Id at 1-3).
Plaintiff alleges that Defendants were conspiring to avoid
fixing the sink, thus causing his falls. (Id at 3).
STANDARD OF REVIEW
motion to dismiss for failure to state a claim, the Court
must accept the factual allegations of the claim as true and
construe them in the light most favorable to the non-moving
party. Coleman v. Maryland Ct. of Appeals, 626 F.3d
187, 189 (4th Cir. 2010). To survive the motion, the
“complaint must contain sufficient factual matter,
accepted as true, ‘to state a claim to relief that is
plausible on its face.'” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). To be
“plausible on its face, ” a plaintiff must
demonstrate more than “a sheer possibility that a
defendant has acted unlawfully.” Id A
plaintiff therefore must “articulate facts, when
accepted as true, that ‘show' that the ...