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Marbury v. Wilerby

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

November 14, 2019

LIONELL MARBURY, Plaintiff,
v.
FNU WILBERY, et al. Defendants.

          ORDER

          FRANK D. WHITNEY CHIEF UNITED STATES DISTRICT JUDGE

         THIS 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, 5].

         I. BACKGROUND

         Pro se 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].

         Plaintiff brings claims against Defendants for deliberate indifference to serious medical needs in violation of his Eighth Amendment rights. [Doc. 1].

         The 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).

         For relief, Plaintiff seeks monetary damages and injunctive relief. [Id.].

         II. STANDARD OF REVIEW

         Because 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.

         In its 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 ...


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