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Tucker v. Kivett

United States District Court, M.D. North Carolina

December 16, 2019

CORNELIUS TUCKER, Plaintiff,
v.
CPL. KIVETT, et al., Defendants.

          ORDER, MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          Joe L. Webster United States Magistrate Judge.

         This matter comes before the Court upon Defendants Cpl. Kivett, Sgt. Engle, [1] Major Slater, Captain Settle, and Corporal Money's (“FCDC Officers”) motion for summary judgment (Docket Entry 62), Defendant Amy Leeper's motion for summary judgment (Docket Entry 69), and Defendants Dr. Cunningham and Nurse McKoy's motion for summary judgment (Docket Entry 72). Pro se Plaintiff Cornelius Tucker has filed a response solely to the FCDC Officers' motion for summary judgment. (See Docket Entry 67.) Also before the Court is Plaintiff's motion for appointment of counsel. (Docket Entry 88.) All matters are ripe for disposition. For the following reasons, the Court will deny Plaintiff's motion for appointment of counsel, and recommend that Defendants' motions for summary judgment be granted.

         I. BACKGROUND

         Plaintiff filed this action alleging that his constitutional rights were violated as a pretrial detainee at the Forsyth County Detention Center (“FCDC”). (See generally Compl., Docket Entry 2; see also Docket Entries 3, 5-12.) Although the majority of Plaintiff's pleadings are virtually unintelligible and difficult to discern, it appears that the substance of his claims is grounded in allegations of inadequate healthcare, particularly related to Plaintiff's alleged glioblastoma brain tumor and other medical ailments. (Docket Entries 2-3, 5-12.) Additionally, Plaintiff asserts that he was deprived of hygiene supplies and utensils. (Docket Entry 2.)

         In support of their motions for summary judgment, Defendants have submitted several affidavits. As to the FCDC Officers' motion, they have submitted the affidavit of Defendant Slater who holds the rank of Major with the FCDC. (Slater Aff. ¶ 2, Docket Entry 63-1.) Defendant Slater states that based upon Plaintiff's record, the nature of his pending charges, his criminal history, and officer/inmate safety concerns, he is classified as a high security risk and as such is housed in administrative segregation rather than in general population within the FCDC. (Id. ¶ 7.) FCDC officials entered Special Administrative Orders regarding Plaintiff such that he was not provided physical objects he could potentially harm himself with as he had previously done at the FCDC. (Id.) The conditions of Plaintiff's confinement are reviewed weekly by supervising jail staff and are modified as needed. (Id. ¶ 8.)

         Additionally, Defendant Slater states that Plaintiff is seen on a daily basis by the inmate healthcare provider at the facility. (Id. ¶ 10.) The healthcare services are contracted out to Wellspath, LLC, formerly known as Correct Care Solutions. (Id. ¶ 9.) Due to such contract, the Forsyth County Sheriff's Office does not provide healthcare to inmates at the FCDC, nor does its staff interfere with an inmate's access to care as determined by Wellpath's medical staff. (Id. ¶ 11.) Lastly, Defendant Slater states that he nor any of the other named FCDC Officers have been delegated policy-making authority in this action. (Id. ¶ 12.) Nor has Plaintiff availed himself to FCDC's grievance procedures in this action, which he is well aware of. (Id. ¶¶ 13-15.)

         Defendant Leeper has also filed an affidavit in support of her motion for summary judgment. (Amy Leeper Aff., Docket Entry 70-1.) Defendant Leeper states that she is a psychologist employed by Central Regional Hospital, a state-operated healthcare facility. (Id. ¶¶ 2-3.) On two occasions, she conducted court-ordered evaluations of Plaintiff to determine his capacity to stand trial. (Id. ¶¶ 4, 6.) During those two interactions with Plaintiff, Defendant Leeper always followed established policies and procedures. (Id. ¶ 5.)

         Defendants Dr. Cunningham and Nurse McKoy have also filed affidavits (and exhibits thereto) in support of their motion. (Cunningham Aff., Docket Entry 73-5; McKoy Aff., Docket Entry 73-6.) According to said Defendants, on November 28, 2017, Central Regional Hospital faxed Plaintiff's discharge summary to the medical providers at the FCDC. (Central Regional Hospital Discharge Summary, Ex. 1, Docket Entry 73-1.) The summary encompasses Plaintiff's stay at Central Regional Hospital from July 6, 2017 to November 22, 2017 for an “incapacity to proceed” determination. (Id. at 1.) The record reflects that Plaintiff's principal discharge diagnosis was “schizoaffective disorder, bipolar type” along with other behavioral health and medical diagnoses. (Id. at 15.) The discharge summary notes that Plaintiff underwent an MRI of the brain on July 23, 2017 that showed “parenchymal volume loss and scattered T2/FLAIR hyperintense white matter foci that are likely the Sella chronic small-vessel ischemic changes. No acute intracranial abnormality.” (Id. at 13.)

         Plaintiff was discharged from Central Regional Hospital back to the FCDC with the following discharge plan:

[Plaintiff] will be discharged back to [the FCDC]. He will need to continue medications as prescribed and receive mental health follow up in jail. Trazodone can be further titrated (has previously been on and tolerated doses up to 150mg qHS) for insomnia with close attention to [blood pressure] as [patient] with [history of] hypotension related to medications. [Patient] with [history of] hepatitis C, currently normal liver function. He will need hepatitis A (#2) and B (#3) vaccinations in January 2018, avoid hepatotoxic medications as able (e.g. acetaminophen).

(Id. at 15) (emphasis added). The medications listed on admission and on discharge included: olanzapine for psychosis; mirtazapine for depression, anxiety and sleep; Depakote for mood stabilization; benztropine to alleviate side effects associated with antipsychotic medications; aspirin to protect against cardiovascular disease; vitamin D3 for a vitamin D deficiency; hydroxyzine for insomnia and anxiety; perphenazine for psychosis; and trazadone for insomnia. (Id. at 8, 14.)

         Between April 10, 2015 and November 14, 2018, medical officials at the FCDC saw Plaintiff on 35 to 40 occasions for evaluation, examination or counseling. (Medical Records, Ex. 4, Docket Entry 73-4.) Dr. Cunningham first provided psychiatric care to Plaintiff on June 21, 2016. (Cunningham Aff. ¶ 38; see also Medical Records at 53-56.) Dr. Cunningham saw Plaintiff three more times between June 21, 2016 and November 14, 2018. (Cunningham Aff. ¶¶ 39-40, 42; see also Medical Records at 58-60, 61-63, 64-66.) At each visit, Dr. Cunningham evaluated Plaintiff for schizoaffective disorder and reasonably concluded that Plaintiff's symptoms were related to his diagnosis of schizoaffective disorder. (Cunningham Aff. ¶¶ 38-40, 42.) At no time in his case did Dr. Cunningham have reason to believe that Plaintiff suffered from a brain tumor or brain leisure that required testing or treatment. (Id. ¶ 55.) Dr. Cunningham stated that he reasonably treated Plaintiff for schizoaffective disorder consistent with his training and experience as a psychiatrist. (Id. ¶ 56.)

         As to Nurse McKoy, he was not aware of any diagnosis of a brain tumor or other serious medical need that required treatment. (McKoy Aff. ¶ 16.) Nurse McKoy was aware of Plaintiff's mental health disorder diagnosis and when Plaintiff reported hearing voices and claimed to have been suffering from a glioblastoma tumor, Nurse McKoy reasonably referred Plaintiff to a mental health professional. (Id. ¶¶ 12-13, 17.) Nurse McKoy states that at no time were mental health staff deliberately indifferent to a serious medical condition. (Id. ¶ 17.)

         II. ...


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