United States District Court, W.D. North Carolina, Charlotte Division
D. WHITNEY CHIEF UNITED STATES DISTRICT JUDGE
MATTER is before the Court on initial review of
Plaintiff's Complaint, filed under 42 U.S.C. § 1983.
[Doc. 1]. See 28 U.S.C. §§ 1915(e)(2);
1915A. Plaintiff is proceeding in forma pauperis. [Docs. 2,
Plaintiff Lionell Marbury (“Plaintiff”) is a
prisoner of the State of North Carolina, currently
incarcerated at Piedmont Correctional Institution in
Salisbury, North Carolina. Plaintiff filed this action on
April 15, 2019, pursuant to 42 U.S.C. § 1983, naming the
following as Defendants: (1) FNU Wilerby, identified as a
Lieutenant at Brown Creek Correctional Institution
(“Brown Creek”), located in Polkton, North
Carolina; (2) FNU Myers, identified as a Sergeant at Brown
Creek; (3) Jack Cleloand, identified as an Assistant
Superintendent at Brown Creek; (4) [Doc. 1].
brings claims against Defendants for deliberate indifference
to serious medical needs in violation of his Eighth Amendment
rights. [Doc. 1].
following allegations of the Plaintiff are taken as true for
the purpose of initial review:
Officers had me work between April and June while injured on
crutches. Time varies. April 18 2016 between 12:30 - 2:00 pm
is when I dislocated my knee.
I dislocated my right knee and was denied medical assistance
when I requested sickcalls on five different occasions. Lt.
Wilerby and Sgt Myers both compelled me to work as a bathroom
janitor while injured and on crutches putting me in an unsafe
environment for two months. They both threaten to write me up
if I quit my job. Also nurse Teater denied me crutches at
first until C.O. Ferris agreed with me to have some….
I sustained a dislocated right knee which had bruising going
down to my ankle and up my right thigh. At Brown Creek I only
received an ace bandage, Icepacks, crutches and meloxicam
only “After” declaring “TWO”
emergency sickcalls. I had to work as a bathroom janitor for
weeks until I left. At Bertie Correctional I was seen the
next night after putting in one sickcall. I saw the doctor a
few days later after the nurse seen “FIVE”
unanswered sickcalls at Brown Creek. The doctor ordered
physical therapy, more pain medication and MRI pending
results of physical therapy. MRI showed I had a subluxed
patella and was order for surgery on Dec 4, 2017. I also was
given physical therapy once more between feb 2018 and Apr.
2018. I'm currently taken pain medication for injury. I
didn't receive any medical attention at Brown Creek when
I put in 5 sickcalls. Also the doctor nor nurse took me off
of work at Brown Creek when I verbally requested.
[Doc. 1 at 5 (spelling and grammatical errors uncorrected).
relief, Plaintiff seeks monetary damages and injunctive
STANDARD OF REVIEW
Plaintiff is proceeding in forma pauperis, the Court must
review the Complaint to determine whether it is subject to
dismissal on the grounds that it is “frivolous or
malicious [or] fails to state a claim on which relief may be
granted.” 28 U.S.C. § 1915(e)(2). Furthermore,
under § 1915A the Court must conduct an initial review
and identify and dismiss the complaint, or any portion of the
complaint, if it is frivolous, malicious, or fails to state a
claim upon which relief may be granted; or seeks monetary
relief from a defendant who is immune to such relief.
frivolity review, this Court must determine whether the
Complaint raises an indisputably meritless legal theory or is
founded upon clearly baseless factual contentions, such as
fantastic or delusional scenarios. Neitzke v.
Williams, 490 U.S. 319, 327-28 (1989). Furthermore, a
pro se complaint must be construed liberally. Haines v.
Kerner, 404 U.S. 519, 520 (1972). However, the liberal
construction requirement will not permit a district court to
ignore a clear failure to allege facts in his ...