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Moss v. Harwood

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

September 6, 2019

ERIC WAYNE MOSS, Plaintiff,
v.
BUDDY HARWOOD, et al., Defendants.

          ORDER

          FRANK D. WHITNEY, CHIEF UNITED STATES DISTRICT JUDGE

         THIS MATTER comes before the Court on Defendants' Motion for Summary Judgment, (Doc. No. 45). Also pending are Plaintiff's “Declaration in Support of Motion for Appointment of Counsel, ” (Doc. No. 37), and Motion to Compel and Request for Production of Documents, (Doc. No. 39).

         I. BACKGROUND

         Plaintiff filed a pro se Complaint pursuant to 42 U.S.C. § 1983 that passed initial review on his claim of deliberate indifference to a serious medical need and for the deprivation of due process with regards to a jail disciplinary proceeding. (Doc. Nos. 1, 14). The Defendants are Madison County Sheriff Buddy Harwood, and Madison County Detention Center Sergeant Frances Denton, [1] and Captain Tom Banks. Defendants have now filed a Motion for Summary Judgment that is before the Court for review. (Doc. No. 45).

         (1) Complaint (Doc. No. 1)

         Plaintiff alleges that Defendant Denton put Plaintiff in on 30-day disciplinary confinement for a weapon found in Plaintiff's cell, which houses two people, on April 1, 2018. On April 3, 2018, Defendant Harwood placed Plaintiff on indefinite lockdown. On April 15, 2018, Plaintiff asked Defendant Banks for a disciplinary hearing and Banks stated “I'll pray for you.” (Doc. No. 1 at 3). The Defendants went against their disciplinary procedures by placing Plaintiff in indefinite confinement without a proper hearing.

         While he was on disciplinary confinement, Plaintiff was not provided with adequate medical treatment for a thyroid condition, ADHD, and PTSD. He appears to allege that medication is needed to control his medical and mental disorders. Plaintiff asked Defendants Banks and Harwood for access to the kiosk to request medical treatment and grievance procedures but he was told “absolutely not your [sic] on lockdown.” (Doc. No. 1 at 4). Plaintiff claims that he finally received thyroid medication on April 18, 2018, after writing to Defendant Banks, but that he still has no treatment for ADHD and PTSD. As of the date the Complaint was filed on April 25, 2018, Plaintiff was still on lockdown, officers refused to bring him grievance forms, and he is not allowed on the kiosk to submit grievances and medical requests.

         Plaintiff seeks injunctive relief and compensatory damages.

         (2) Defendants' Motion for Summary Judgment (Doc. No. 45)

         Defendants argue that the § 1983 due process claim is barred by the Prison Litigation Reform Act because Plaintiff failed to exhaust the Jail's grievance procedure with regards to that claim before filing this lawsuit.

         Plaintiff's claim of deliberate indifference to a serious medical need should be dismissed because Defendants were not deliberately indifferent. Plaintiff received medical treatment while he was on lockdown, and Plaintiff cannot show substantial harm due to any delay in treatment. Defendants argue that they are entitled to qualified immunity because there was not constitutional violation and, even if Plaintiff can demonstrate deliberate indifference, there is no evidence that the non-medical Defendants knew about and disregarded an excessive risk to Plaintiff's health and safety, nor is there any evidence that Plaintiff's condition worsened, was life threatening, or that Defendants intentionally ignored the situation and refused to seek medical attention.

         (3) Plaintiff's Responses (Doc. Nos. 49, 54)

         The Court issued an Order pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), instructing Plaintiff about the importance of responding to, and the standard applicable to, Defendants' Motion for Summary Judgment. (Doc. No. 47).

         Plaintiff filed a verified Declaration docketed on May 28, 2019, (Doc. No. 49), arguing that he was never served a disciplinary report and never saw one until Defendants responded to a discovery request. The Report shows that neither Plaintiff nor Defendant Denton ever signed the report, and that when Plaintiff was asked about a weapon, he denied it twice. The Report also says “plea Responsible, ” which shows it was created later. (Doc. No. 49 at 2). Plaintiff also asserts that he was clearly deprived of medical attention for periods of months. He was admitted to Madison County Jail on March 5, 2018 and told Officer Jones during booking that he has mental health conditions and thyroid disease, informed Tom Bank of his request to be seen at medical, and said that his medication was at Mashburn Pharmacy which had never been picked up. Plaintiff said he needed to be seen at RHA but he was not seen for two months. On May 8, 2018, he was finally seen and given his medications for PTSD, ADHD, anxiety, and depression. When the medications ran out 30 days later, Plaintiff pleaded with Defendant Denton and “all officers” for another appointment with RHA and to pick up medications at the pharmacy. (Doc. No. 49 at 3). However, Plaintiff never received any more medication and was not seen at RHA for another two months.

         When Plaintiff was put on lockdown, he was not allowed out of his cell except to get food trays. Throughout the lockdown time, Plaintiff had to rely on other inmates to access his account on the kiosk where Plaintiff could file medical requests and grievances. Giving access to Plaintiff's account also gave access to make phone calls and transfer money; it is difficult to find trustworthy people in Jail with this information. This is one reason for the delay in filing a grievance. Plaintiff asked several times for a paper copy of a grievance forma and he was never given one. Nor was he provided with religious materials or toiletries. Plaintiff finally had Inmates Tennessee and Miami file grievances for him. Plaintiff made every possible attempt to comply with the grievance procedure and should not be held at fault for being denied access to the kiosk and paper forms while he was on lockdown. The records show that Plaintiff was finally given a chance to file grievances and medical requests when he was given a chance through other inmates and on his own behalf when he was released from lockdown. Plaintiff asks the Court to grant Plaintiff summary judgment based on evidence from which a reasonable jury could return a verdict in his favor.[2]

         Plaintiff then filed a Motion for Extension of Time to file a response, which was granted, and he filed a second Response that was docketed on June 24, 2019. (Doc. No. 54); see (Doc. Nos. 51, 53). Plaintiff argues that he was a pretrial detainee who could not be punished at all, and therefore, he was not required to exhaust administrative remedies before filing his Complaint. Plaintiff filed several grievances through other inmates at the Madison County Jail because Plaintiff was in lockdown. Plaintiff also asked staff at the Jail for access to the kiosk and for paper grievance forms, writing paper, and hygiene products on numerous occasions. North Carolina District Courts have also stayed proceedings to allow for exhaustion, knowing that jails and prisons do not always comply with their own policies and administrative procedures. Plaintiff appears to assert that he completed the exhaustion procedure before the Court's frivolity review of the Complaint and that he therefore complied with the exhaustion requirement.

         With regards to the deliberate indifference claim, Plaintiff argues that his thyroid condition, PTSD, ADHD, and major depressive disorder for which he was prescribed medication, are serious medical conditions. He requested medication to control these disorders shortly after arriving at the Jail around March 4, 2018 and told Intake Officer Billy Joe Davis about his medications at intake. Defendants purposefully denied or delayed the medications and scheduled medical appointments. Plaintiff had to submit another request for medication for his thyroid condition and PTSD disorders on March 16, 2018. Jail Administrator Tom Banks responded on March 20 and noted that Lance in the pharmacy would check on this and fill it at Mashburn. It took staff another four weeks, around April 11, 2018, to get Plaintiff's medications. Plaintiff requested his medications and mental health appointments numerous times through grievances and medical requests. On April 22, 2018, after receiving thyroid medication, Plaintiff submitted a grievance through a fellow inmate for his appointment with the RHA mental health clinic and for medications for his ADHD, PTSD, and major depressive disorder. Jail Administrator Banks responded on April 23, 2018, that “I will have you seen by RHA.” (Doc. No. 54-1 at 9). It took Defendants 27 days after that to bring Plaintiff to RHA so that he could be prescribed his “much needed” medications. (Id.). Plaintiff was seen at RHA mental health clinic on May 8, 2018, at which time Dr. Frank Russo prescribed Plaintiff medications for his ADHD, PTSD, and major depressive disorder. On June 6, 2018, Plaintiff advised Defendants that he needed a refill of his psych medications and filed a grievance through a fellow inmate. On June 21, Plaintiff requested psychiatric help via Dr. Russo because he was out of his medications. On June 26, 2018, Plaintiff again requested mental health treatment. After Plaintiff had been out of his psych medications for 27 days, Plaintiff again advised Defendants that he was out of his medications on July 3, 2018. Plaintiff submitted more grievances on July 18, and August 6, 2018, requesting his psych medications and an appointment at RHA. Plaintiff was finally taken to RHA to see Dr. Russo on August 14, 2018, at which time he had been out of psych medications and had not seen Dr. Russo for two months. On August 15, 2018, Plaintiff filed another grievance after Dr. Russo disclosed that he had ordered enough psych medications to last Plaintiff until his next appointment. Defendants simply failed to pick up his medications until Dr. Russo inquired about the delays. Plaintiff suffers from real mental health conditions that are somewhat controlled by medication, without which he suffers mental anguish that is as real as any physical injury. These conditions debilitate one slowly, persistently, and will not subside. Plaintiff risks harm without his medication with thoughts of suicide, severe anxiety, exacerbated PTSD, and mental anguish. The combination of suffering equates to substantial harm.

         Defendants are not entitled to qualified immunity because Defendants' denial and delay of medications and mental health appointments were deliberately indifferent to his serious medical needs. Plaintiff was punished even though he was a pretrial detainee by being placed in lockdown for approximately 72 days without due process. Statutory and constitutional law show that Defendants' illegal actions were contrary to clearly established law.

         By failing to refute Plaintiff's claims about being placed in lockdown without due process, Defendants have abandoned the opportunity to challenge Plaintiff's factual claims. Plaintiff was not afforded advance written notice, a written statement of evidence, a hearing, the opportunity to have non-attorney representation, and an impartial decision-maker. Plaintiff was placed in segregation for 72 days due to an alleged weapon being found in a cell occupied by Plaintiff and another prisoner. In this § 1983 action, Plaintiff requested discovery about Defendants' copies of Officer Summer Gurley and Tara McKinney's official incident reports surrounding the weapon incident, but Plaintiff was told that Defendants did not have documents in response to Plaintiff's request. Plaintiff's request for a photocopy of the alleged weapon was answered the same way. When Plaintiff asked how an investigation was done without an initial incident report or alleged weapon, Defendants sent him a document entitled “Madison County Sheriff's Office/Disciplinary Report” that does not comport with the disciplinary procedural safeguards. (Doc. No. 54-1 at 20). Plaintiff was not afforded any of the due process steps that were required for the weapon incident and it was never investigated pursuant to Jail policy. The weapon incident occurred on April 1, 2018, and the beginning and ending dates in the Report are April 7 to May 6, 2018. Plaintiff was placed on lockdown on April 1 and released from lockdown on June 7, 2018. He was then locked down again for another six days before being released around June 14, 2018. Plaintiff's signature is omitted and the housing unit officer Tom Banks, Francis Denton along with omitted dates and times. (Doc. No. 45-1 at 20-21). The hearing date and time are also omitted, there is no disposition of guilt, and there is nothing checked under the evidence relied upon or finding of guilt. Nor are is there any information in the section for hearing notes and there is no impartial decision-maker identified anywhere on the document. An impartial decision-maker would have made some formal decision or comments but no such findings are included because there was no disciplinary proceeding. There were no procedural safeguards before Plaintiff was placed in segregation.

         Defendants did not submit affidavits or declarations in their Motion for Summary Judgment that would refute Plaintiff's asserted deprivations.

         (4) Defendants' Replies (Doc. Nos. 50, 55)

         In the first Reply, (Doc. No. 50), Defendants argue regarding exhaustion that Plaintiff addresses the merits of his due process claim but fails to show why he failed to comply with the available grievance procedures. His failure to use available grievance procedures means that his due process claim is unexhausted.

         With regards to deliberate indifference, Plaintiff admits that he was seen by Mashburn and received medications for PTSD, ADHD, anxiety, and depression on May 5, 2018. Any disagreement Plaintiff has with the treatments he received do not equate to deliberate indifference. Plaintiff also fails to address Defendants' argument that Plaintiff cannot show any substantial harm from a delay in treatment. He has not addressed lifelong handicap, permanent loss, or considerable pain suffered as a result of a substantial risk of harm.

         In the second Reply, (Doc. No. 55), Defendants argue that Plaintiff's contention that PRLA does not apply to pretrial detainees is legally incorrect and that Plaintiff was required to exhaust regardless of the legal claim he is attempting to raise. The grievance procedure was available to Plaintiff and he filed numerous medical requests and grievances during the relevant time, including when he was on lockdown. Exhaustion cannot be excused under the guise of special circumstances and, in this case, the grievance procedure was available to the Plaintiff but he chose not to use it.

         With regards to deliberate indifference, any alleged incidents that occurred after the Complaint were filed could not have been exhausted. Even if they were properly before the Court, Plaintiff admits that he was seen by Mashburn and received medications for PTSD, ADHD, anxiety and depression on May 5, 2018. Any disagreement that Plaintiff had with the treatments he received does not equate to deliberate indifference. In addition, Plaintiff fails to address Defendants' argument that he cannot show any substantial harm from any delay in treatment. He makes no effort to address what lifelong handicap, permanent loss, or considerable pain he suffered as a result in any delay in medical care, as required to show a substantial risk of harm.

         (5) Evidence [3]

         (A) Declaration of Coy Phillips (Doc. No. 46-4)

         Coy Phillips is Chief Deputy of the Madison County Sheriff's Office. He is familiar with the Jail's policies and procedures. See (Doc. Nos. 46-5, 46-6). Pursuant to policy 7.13, if an inmate has a grievance, he or she may file it using a grievance form or using the jail kiosk. The grievance must detail the circumstances of the complaint. Grievances are routed to the Jail Administrator for a response. Inmates may appeal the response to a higher ranked officer. Newly admitted inmates are informed of the Jail's disciplinary and grievance procedures when they arrive at the Jail and attempt to use the Jail kiosk. The kiosk contains the inmate handbook, which details the policies and procedures applicable to inmates at the Jail. Included in this handbook is section XI, entitled “Grievance Procedure, ” which summarizes the grievance process at the Jail. Phillips helps maintain inmate grievance forms at the Jail. Phillips reviewed the Jail's inmate grievances to determine if Plaintiff ever filed any grievances. Plaintiff did file several grievances and medical requests at the Jail.

         (B) Plaintiff's Declaration (Doc. No. 54-2 at 1)

         In a verified declaration, Plaintiff states that, on April 1, 2018, while he was housed at the Madison County Jail, the cell that Plaintiff shared with another inmate was searched and an alleged weapon was found. Plaintiff and his roommate, Mr. Rice, were locked down. Plaintiff remained on lockdown while Rice was released into the population. Defendant Denton came to Plaintiff's cell and told him he would be on lockdown indefinitely pursuant to Sheriff Harwood's orders, due to an alleged weapon being found. Plaintiff said he did not have a weapon and wanted to talk to the sheriff. On May 24, 2018, Plaintiff gave his pin number to a fellow inmate to file a grievance for him on the kiosk regarding his lockdown without a hearing. Plaintiff filed another grievance on June 12, 2018 through a fellow inmate stating that he had just been released and was locked down again for the same offense. Plaintiff was placed in segregation from April 1, 2018 to June 13, 2018 without a disciplinary hearing. While on lockdown status, Plaintiff was denied and delayed visits to the mental health clinic and doctor-prescribed medications for a thyroid condition. Plaintiff informed Defendants of his medical conditions during booking. Plaintiff was housed at the Jail with two other inmates who either suffered similar deprivations or witnessed Plaintiff's deprivations. As a result of the lockdown and denial and delay of medication and mental health treatment, Plaintiff experienced “severe anxiety, exacerbated symptoms of PTSD, mental anguish, thoughts of suicide, and a near comatose state.” (Doc. No. 54-2 at 5). Plaintiff asked staff numerous times for access to the Jail kiosk, paper grievances, writing paper, and writing implements while on lockdown, which were denied.

         (C) Declaration of Dean Shelton (Doc. No. 49-1 at 3)

         In a verified declaration, inmate Dean Shelton states that he was housed at the Madison County Jail with Plaintiff from March to September 2018. On or around May 2018, Shelton was locked down in segregation without receiving a disciplinary hearing in “A” Dorm by Sergeant Denton for approximately 30 days. Shortly thereafter, Denton moved Shelton to “B” Dorm, placing him in a cell by Plaintiff. Plaintiff told Shelton that he was on lockdown for allegedly possessing a weapon in his cell and that he did not receive a disciplinary hearing either. Shelton was released from lockdown and moved back to “A” Dorm and Plaintiff was released from lockdown approximately 15 days later and moved into Shelton's cell at “A” Dorm. While rooming with Plaintiff, Shelton witnessed him ask Denton and several other jailers for mental health medications and scheduled appointments to RHA. Defendants simply denied Plaintiff's requests. Shelton saw Plaintiff persistently requesting his mental health medications and appointments to RHA and jailers threatening to tase him and lock him down if he kept bothering them. During his two-year stay at the Jail, Shelton witnessed multiple incidents of deprivation ranging from the use of excessive force, denial of disciplinary proceedings, denial of medications and access to medical services and lockdowns for extensive periods of time.

         (D) Declaration of Matthew Paul Tweed (Doc. No. 49-1 at 6)

         In a verified declaration, inmate Paul Tweed states that he was housed at the Madison County Jail with Plaintiff from the end of April to the beginning of June 2018. Tweed was segregated without receiving a disciplinary hearing by Sergeant Denton. Plaintiff told Tweed that he was on lockdown for allegedly possessing a weapon found in his cell and that he did not receive a disciplinary hearing. Tweed witnessed Plaintiff ask Denton and several other jailers for mental health medications and scheduled appointments to go to RHA Medical Center. Defendants and staff simply denied Plaintiff's requests. Tweed witnessed the jailers denying Plaintiff's access to practice his religion and a doctor-prescribed second mattress. At times, the jailers would deny them hygiene and writing paper.

         (E) Plaintiff's Deposition (Doc. No. 46-3)

         Plaintiff stated at his deposition that he arrived at the Jail March 5, 2018 and was released on September 5, 2018. (Doc. No. 46-3 at 2). A cell search located a knife in his cell on April 1, 2018. (Doc. No. 46-3 at 4). Defendant Denton came in later that day and said he was on 30-day lockdown pending the sheriff's decision because a knife was found in the cell. (Doc. No. 46-3 at 5). Denton would not let Plaintiff on the kiosk or give him any writing materials so he had to give other inmates his pin and they finally took plaintiff off the kiosk entirely. (Doc. No. 46-3 at 6). Plaintiff was allowed out of his cell three time per week for an hour. (Doc. No. 46-3 at 7). He was on lockdown for 72 days from around April 1 to the middle of August. (Doc. No. 46-3 at 7-8). When “they” let him out, they would point tasers at him and taunt him. (Doc. No. 46-3 at 8). Plaintiff gave his pin to other inmates to file grievances for him on the kiosk. Plaintiff was off lockdown for five days in June. (Doc. No. 46-3 at 9). Later into the lockdown he could do grievances himself. (Doc. No. 46-3 at 11). April 11 is the first time Plaintiff went to the Mashburn center and got medication for his thyroid. (Doc. No. 46-3 at 12). During lockdown his anxiety worsened. (Doc. No. 46-3 at 14). During the last 15 days of lockdown Plaintiff was let out of his cell three times per week for an hour. (Doc. No. 46-3 at 7).

         Plaintiff was seen at Mashburn in March or April 2018 and got medication. (Doc. No. 46-3 at 16). Bloodwork indicated that Plaintiff's thyroid was so high that it was a wonder that [he] wasn't in a coma, because [he] hadn't had [his] medication.” (Doc. No. 46-3 at 15). Before he got locked up, Plaintiff told Banks that he needed his thyroid medication and other medication that would be at the pharmacy, and Banks said he would check on it. (Doc. No. 46-3 at 15).

         Plaintiff received ADHD medication and Zoloft anxiety medication during lockdown when he went to RHA on May 8. (Doc. No. 46-3 at 17). Plaintiff does not remember any other times he received thyroid, ADHD, and Zoloft medications other than the two times he mentioned while he was on lockdown. (Doc. No. 46-3 at 17).

         Lack of medication makes Plaintiff “think crazy stuff, ” makes him tired, and he is unable to sleep, he has no appetite, he thinks people are after him, and it affects blood pressure. (Doc. No. 46-3 at 18). Plaintiff also stated that the lack of a disciplinary hearing in April 2018 “caused [him] to … have severe anxiety … [and his] PTSD is twice as bad as it was. Just a lot of mental anguish.” (Doc. No. 46-3 at 26). When asked whether he has any physical injuries from the disciplinary issue, he stated that “[i]t was all, pretty much, mental. Made me have thoughts of suicide. I mean, made me - I lost everything. You know, no contact, no nothing….” (Doc. No. 46-3 at 26). Plaintiff's family was allowed to visit him 10 or 15 days before he came off lockdown.

         (F)Time Line

         3/4/18 Booking Information by Billy Joe Davis

Medical Questionnaire: “Is the Inmate presently taking medication for psychiatric disorder? Yes;” “Is the inmate presently taking medication for other? Yes ADHD MEDS, ZOLOFT;” “Has the inmate been hospitalized or seen a physician recently for any ...

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