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Spann v. Perry

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

August 31, 2019

RONALD WAYNE SPANN, Plaintiff,
v.
FRANK PERRY, et al., Defendants.

          MEMORANDUM AND RECOMMENDATION

          W. Carleton Metcalf, United States Magistrate Judge.

         This matter is before the Court on Robert L. Uhren, Jr. M.D.'s Motion to Dismiss Plaintiff's Complaint (Doc. 24), which has been referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B). Having carefully considered the arguments, the record, and applicable authority, the undersigned respectfully recommends that the Motion be granted in part and denied in part.

         I. Relevant Procedural Background

         Plaintiff is incarcerated at Mountain View Correctional Institution (“MVCI”) in Spruce Pine, North Carolina.

         On April 13, 2017, a complaint was filed on Plaintiff's behalf by attorney Mary March Exum asserting claims pursuant to 42 U.S.C. §1983 against a number of defendants, including Dr. Uhren (“Spann I”). Case No. 1:17-cv-104.

         The Spann I litigation was dismissed by order of the District Court on March 13, 2018 (“March 13 Order”). The dismissal of Spann I was expressly ordered as being without prejudice as to refiling within one year.

         Approximately three months later, on June 21, 2018, Plaintiff filed the instant case, this time appearing pro se. (Doc. 1). Plaintiff also filed a Motion for Appointment of Counsel (Doc. 2).

         On July 5, 2018, Plaintiff filed a motion to proceed in forma pauperis (Doc. 4) and an additional Motion to Appoint Counsel (Doc. 7).

         On July 13, 2018, Plaintiff's motion to proceed in forma pauperis was granted and his motions to appoint counsel were denied. (Docs. 8, 9).

         Plaintiff filed another Motion Requesting Appointment of Counsel (Doc. 12) on July 18, 2018, which was also denied. (Doc. 13).

         On September 17, 2018, Dr. Uhren filed the instant Motion to Dismiss (Doc. 24) and a supporting memorandum (Doc. 25). The same day, Dr. Uhren also filed his Answer (Doc. 26).

         On September 19, 2018, an order was entered advising Plaintiff of the filing of Dr. Uhren's Motion to Dismiss and making him aware of his opportunity to respond and the time allowed for doing so. (Doc. 27).

         On September 24, 2018, Plaintiff filed another Motion to Appoint Counsel (Doc. 28). That Motion was denied on October 10, 2018. (Doc. 29).

         The remaining Defendants filed their Answer on October 26, 2018. (Doc. 31).

         II. Relevant Factual Background

         Plaintiff's Complaint, which is comprised of 217 paragraphs, includes the following allegations:

Defendant Norma Melton is the head nurse at MVCI, Defendant Jamie Grindstaff is the First Shift Lead Nurse, and Dr. Uhren is a gynecologist from Black Mountain, North Carolina who works at MVCI one day per week. Complaint (Doc. 1) at ¶¶ 10 - 12.

         Prior to Plaintiff's incarceration, the Social Security Administration found him to be totally disabled based on his osteoarthritis and allied disorders and mental disorders. Id. at ¶ 14.

         Plaintiff arrived at MVCI on July 10, 2011. Id. at ¶ 20. Upon arrival, Plaintiff was sent to the medical unit for an evaluation. Id. at ¶ 22. During that evaluation, Dr. Uhren advised Plaintiff that the Social Security Administration's disability determination had no impact over his evaluation or treatment. Id. at ¶ 23.

         Although Plaintiff had previously been prescribed both Percocet and Flexiril for many years before arriving at MVCI, Dr. Uhren placed Plaintiff on Tylenol or Ibuprofen to manage pain. Id. at ¶ 24.

         Plaintiff describes numerous issues related to his medical care including the following:

• X-rays of Plaintiffs back were taken in 2012 and after reading those x-rays Dr. Uhren informed Plaintiff he did not have severe back problems and did not need back surgery. (Id. at ¶¶ 25 - 26)
• Following three separate sick call requests, Plaintiff was finally seen by Dr. Uhren, was prescribed Tylenol and Ibuprofen, and was informed that if he was not better in four weeks his prescription for Neurontin would be increased, but that Dr. Uhren allowed the prescription to expire. (Id. at ¶ 28)
• In or around February 2015, Plaintiff was sent to Valdese Hospital for hernia surgery, and that “the medical staff had waited so long to send Plaintiff for such surgery his hernia had migrated, requiring the insertion of wire mesh in his groin which still gives him problems. (Id. at ¶¶ 50 - 51)
• Since February 2015, Plaintiff has been confined to a wheelchair, which he alleges is due in part to the negligence of ...

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