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McClary v. Bullock

United States District Court, M.D. North Carolina

January 6, 2020

RONALD MCCLARY, Plaintiff,
v.
FNU BULLOCK, et al., Defendants.

          ORDER, MEMORANDUM OPINION, AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          Joe L. Webster United States Magistrate Judge

         This matter is before the Court on several motions by Plaintiff Ronald McClary and Defendant Letitia Owen. (Docket Entries 24, 25, 29, 30, 31.)

         I. BACKGROUND

         Plaintiff is a pro se prisoner of the State of North Carolina and was previously incarcerated at Scotland Correctional Institute (hereinafter “Scotland”). (See Complaint ¶ IV(B), Docket Entry 2). On January 1, 2019, Plaintiff filed a complaint against: (1) “FNU Bullock, ” a nurse allegedly employed by the North Carolina Department of Public Safety (hereinafter “NCDPS”); (2) Defendant Owen a nurse supervisor allegedly employed by NCDPS; and (3) Defendant Connie Locklear-Jones, a doctor allegedly employed by NCDPS.[1](Id. ¶ I(B).) Plaintiff sought compensatory and punitive damages against all defendants in their official and individual capacities for alleged violations of his rights under the Eighth Amendment that occurred between August 15, 2018 and November 23, 2018. (Id. ¶¶ I(B), II(B), IV(B), VI.) Specifically, Plaintiff alleges that he suffers from a number of chronic medical ailments, including an enlarged prostate, a “bladder problem, ” high blood pressure, and a deteriorating disc disease (Id. ¶ IV(D).) According to Plaintiff, Defendants were responsible for Plaintiff's failure to receive medical treatment for these conditions, which resulted in “a worsening of all ailments.” (Id. ¶¶ IV(D), V.)

         On February 13, 2019, Plaintiff filed a “Motion to Leave, ” docketed as a supplemental complaint, in which he provided more detailed allegations that Defendant Locklear-Jones had discontinued Plaintiff's prescribed medications and treatment despite never seeing him. (Supplemental Complaint, Docket Entry 6.) Plaintiff also filed several medical documents. (Docket Entry 6-1.)

         On February 22, 2019, Plaintiff filed pleadings, titled as an Amended Complaint, that alleged additional complaints of non-treatment of pain in his right shoulder and a deteriorating disc in his back. (First Amended Complaint, Docket Entry 10.) Plaintiff alleged that Defendant Locklear-Jones had declined to follow a pain management plan for his shoulder developed by Plaintiff's previous physician and had not seen Plaintiff to address his conditions. (Id. ¶ IV(B)-(C).) Plaintiff also alleged that Defendants Owen and Bullock knew of Defendant Locklear-Jones' actions and failed to respond. (Id. ¶ IV(D).)

         On March 4, 2019, summons was issued to all Defendants, but only the summons to Defendant Owen returned executed. (Docket Entries 12, 14, 19, 20.)

         On March 25, 2019, Plaintiff filed additional pleadings, titled as a second Amended Complaint, that alleged additional wrongdoing by Defendant Locklear-Jones between September 12, 2018 and February 8, 2019. (Second Amended Complaint ¶ IV(B)-(C), Docket Entry 15.) Plaintiff wrote that he filed the new pleading because “new issues arose and giving [sic] defendant chance to respond.” (Id. ¶ IV(D).) Plaintiff specifically argued that Defendant Locklear-Jones did not follow policy when she allegedly discontinued his medication without his notice. (Id. ¶ IV.) Besides naming them as parties, this filing made no mention of Defendants Bullock and Owen. (See Id. ¶ I(B).)

         On May 22, 2019, Plaintiff filed a motion for appointment of counsel. (Docket Entry 24.) No. defendant has responded. On June 3, 2019, Defendant Owen filed a motion to dismiss for failure to state a claim. (Docket Entry 25.) Plaintiff responded on June 10, 2019. (Docket Entry 28.) Defendant Owen has not filed a reply. On June 12, 2019, Plaintiff filed motions for default judgment against Defendants Bullock and Locklear-Jones. (Docket Entries 29, 30.) No. response has been filed to either motion. On July 25, 2019, Plaintiff filed a motion entitled “Motion to Show Cause, ” which appears to request addresses at which the unserved Defendants could receive service of process. (Docket Entry 31.) Since the filing of that motion, Defendant Locklear-Jones has received service of process, (Docket Entry 35, ¶ 8). All five of aforementioned motions are before the Court and ripe for disposition.

         II. DISCUSSION

         A. Defendant Owen's Motion to Dismiss

         The Court will first address Defendant Owen's Motion to Dismiss. (Docket Entry 25.) Defendant Owen's sole argument in support of dismissal is that the Second Amended Complaint supersedes the first two complaints and literally does not state a claim against Defendant Owen. (Id. ¶¶ 6-7; Docket Entry 26 at 3.) In response, Plaintiff appears to argue that the Second Amended Complaint does not in fact supersede his prior pleadings. (Docket Entry 28 at 1.) The undersigned is unpersuaded by Defendant Owen's argument and will decline to recommend dismissal of Plaintiff's claims against Defendant Owen.

         A motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure generally raises the question of whether the plaintiff's complaint or pleadings are legally sufficient. In other words, a 12(b)(6) motion to dismiss should be granted if the complaint does not allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). The factual allegations must “be enough to raise a right to relief above the speculative level.” Id. at 555 (citations omitted).

         Defendant Owen is correct that an amended complaint generally supersedes a prior one, see Young v. City of Mt. Rainier, 238 F.3d 567, 572 (4th Cir. 2001), and is also correct that the third complaint is titled “Amended” and does not state claims against Defendant Owens (see Second Am. Compl.). However, despite the document being docketed as an “amended complaint, ” the Court declines to construe it as such, for two reasons. First, such a characterization of Plaintiff's pleadings would be unduly harsh and formalistic in light of Plaintiff's status as a pro se litigant. Cf. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (holding that a pro se litigant's pleadings are to be liberally construed); Fireman's Ins. Co. of Newark, New Jersey v. Herbert, No. 4:04CV139, 2005 WL 3536091 at *2 (E.D. Va. Dec. 20, 2005) (noting that a “court does not expect a pro se litigant to perfectly comply with all procedural rules”). Second, it appears that the amended complaints filed by Plaintiff were intended to operate as supplemental pleadings, not superseding ones. For example, Plaintiff wrote in his second amended complaint that he “amended complaint as new issues arose.” ...


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