United States District Court, W.D. North Carolina, Asheville Division
MEMORANDUM AND RECOMMENDATION
Carleton Metcalf, United States Magistrate Judge.
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.
Relevant Procedural Background
is incarcerated at Mountain View Correctional Institution
(“MVCI”) in Spruce Pine, North Carolina.
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
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.
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
5, 2018, Plaintiff filed a motion to proceed in forma
pauperis (Doc. 4) and an additional Motion to Appoint Counsel
13, 2018, Plaintiff's motion to proceed in forma pauperis
was granted and his motions to appoint counsel were denied.
(Docs. 8, 9).
filed another Motion Requesting Appointment of Counsel (Doc.
12) on July 18, 2018, which was also denied. (Doc. 13).
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).
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).
September 24, 2018, Plaintiff filed another Motion to Appoint
Counsel (Doc. 28). That Motion was denied on October 10,
2018. (Doc. 29).
remaining Defendants filed their Answer on October 26, 2018.
Relevant Factual Background
Complaint, which is comprised of 217 paragraphs, includes the
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.
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.
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
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.
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