McClary v. Lightsey

• Decision Date: 08 February 2016
• Docket Number: NO. 5:14-CT-3273-FL,NO. 5:14-CT-3039-FL,NO. 5:14-CT-3147-FL,5:14-CT-3039-FL,5:14-CT-3147-FL,5:14-CT-3273-FL
• Court: U.S. District Court — Eastern District of North Carolina
• Parties: RONALD MCCLARY, Plaintiff, v. JOSEPH LIGHTSEY, MITCHELL LAWSON, NURSE HENDERSON, and NURSE SIERRA, Defendants.

RONALD MCCLARY, Plaintiff, v. JOSEPH LIGHTSEY, MITCHELL LAWSON,NURSE HENDERSON, and NURSE SIERRA, Defendants.

NO. 5:14-CT-3039-FL

NO. 5:14-CT-3147-FL

NO. 5:14-CT-3273-FL

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA WESTERN DIVISION

February 8, 2016

ORDER

This matter comes now before the court on defendant's motion for summary judgment (DE 71), defendants' motion to dismiss (DE 71, 124), and defendant's motion for a protective order (DE 137). Also before the court are plaintiff's motion for leave to file ex parte (DE 82), motion to take deposition from Nurse Bratcher (DE 104), and motion seeking a ruling on interrogatories (DE 108). Plaintiff responded to defendants' respective motions, but defendants did not respond to plaintiff's motions. In this posture, the issues raised are ripe for adjudication.

STATEMENT OF THE CASE

For ease of reference the statement of the case as set forth in the court's December 16, 2014, order is as follows:

Plaintiff filed McClary I on February 5, 2014, and named defendant Joseph Lightsey ("Lightsey") and the North Carolina Department of Public Safety ("DPS") as defendants in the action. Plaintiff alleged that defendants acted with deliberate indifference to his serious medical needs in violation of the Eighth Amendment to the UnitedStates Constitution by failing to provide him surgery for his hernia. Plaintiff subsequently filed two motions to amend his complaint and alleged that defendants Lightsey, Mitchell Lawson ("Lawson"), Nurse Henderson ("Henderson"), and Nurse Sierra ("Sierra") acted with deliberate indifference to plaintiff's urological needs in violation of the Eighth Amendment. Plaintiff additionally alleged in an amended pleading that defendant Lightsey acted with deliberate indifference to his serious medical needs when Lightsey punched plaintiff in "the womb," on March 14, 2014, after having surgery.

On October 7, 2014, the court entered an order in McClary I and granted plaintiff's motions to amend. The court additionally dismissed without prejudice plaintiff's claim that Lightsey and DPS failed to provide plaintiff with surgery for his hernia on the grounds that plaintiff failed to comply with 42 U.S.C. § 1997(e)a's requirement that he exhaust his administrative remedies prior to filing this action. The court additionally dismissed without prejudice plaintiff's claim that Lightsey punched plaintiff in the womb on March 14, 2014, for failure to exhaust administrative remedies because it arose subsequent to the date plaintiff filed this action. Finally, the court DIRECTED plaintiff to notify it whether plaintiff exhausted his administrative remedies for his remaining claims against Lightsey, Lawson, Henderson, and Sierra prior to filing McClary I.

Plaintiff subsequently responded to the court's October 7, 2014, order. Then, on November 7, 2014, the court entered an order vacating the October 7, 2014, dismissal of plaintiff's claims for failure to exhaust and noted an intent to reserve the issue for a later date. The court also allowed plaintiff to proceed with his Eighth Amendment claims against Lightsey, Lawson, Henderson, and Sierra. Plaintiff subsequently filed two motions to amend his complaint in McClary I, as well as a motion for discovery.

On June 9, 2014, plaintiff filed a second § 1983 action pro se in McClary II. Plaintiff alleged that Lawson acted with deliberate indifference to plaintiff's serious medical needs in violation of the Eighth Amendment because Lawson refused to provide medical care despite the fact that plaintiff had symptoms of prostate cancer.

Finally, on October 30, 2014, plaintiff filed a third § 1983 action pro se in McClary III naming Lightsey as a defendant. Plaintiff alleged that Lightsey acted with deliberate indifference to his serious medical needs because Lightsey refused to provide post-operative care following plaintiff's hernia surgery. Plaintiff subsequently filed a motion to amend his complaint.

(DE 24, pp. 2-3.)

On December 16, 2014, the court entered an order consolidating McClary I, II, and III, and designated McClary I as the lead case. The court granted plaintiff's motions to amend and directed him to file a particularized complaint. The court also denied plaintiff's motion for discovery as premature. Finally, the court directed the clerk of court to add Lawson, Henderson, and Sierra as defendants in this action. On December 30, 2014, United States Magistrate Judge Robert B. Jones, Jr. signed a consent order, filed by defendant Lightsey, governing the production of confidential information by the North Carolina Department of Public Safety ("DPS").

On January 6, 2015, plaintiff filed his particularized complaint, and then filed a motion for the production of documents and a pleading captioned "Brandeis Brief," which the court construed as an additional response to its December 16, 2014, order. Defendant Lightsey filed a motion for an extension of time to file an answer to plaintiff's particularized complaint. On February 13, 2015, the court entered an order stating that plaintiff's amended pleading and "Brandeis Brief" were unclear and again directed plaintiff to file one particularized complaint. The court additionally denied as moot defendant Lightsey's motion for an extension of time to file an answer and denied without prejudice plaintiff's motion for production of documents.

On February 23, 2015, plaintiff filed his particularized complaint. Defendant Lightsey again moved for an extension of time to answer plaintiff's second particularized complaint. Plaintiff then filed a motion to compel the appearance of defendants, which the court construed as a motion to expedite. On March 11, 2015, the court entered an order allowing plaintiff to proceed with his action against defendants Lightsey, Mitchell, Lawson, Henderson, and Sierra. The court also granted defendant Lightsey's motion for an extension of time to answer and denied plaintiff's motion to expedite.

On April 12, 2015, the North Carolina Attorney General, acting pursuant to Standing Order 14-SO-02, informed the court that it believed that the party plaintiff identified as "Nurse Sierra" was Heriberto Sierra, and provided an address for service in Greensboro, North Carolina. The United States Marshals Service served Heriberto Sierra at the addressed provided by the attorney general on April 21, 2015. On May 12, 2015, Heriberto Sierra filed a pro se motion to dismiss arguing that he is not the "Nurse Sierra" identified in the complaint, and that he has never worked for the North Carolina Department of Correction. In response, the attorney general informed the court that it had provided an incorrect address for serving defendant Sierra. As a result, on May 15, 2015, the court entered an order quashing the service of Heriberto Sierra, and denying as moot the pending motion to dismiss. Defendant Sierra properly was served on May 6, 2015.

In the interim, plaintiff filed a motion for discovery and a motion to compel. On April 27, 2015, defendant Lightsey filed a motion for a protective order and a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) arguing that plaintiff failed to exhaust his administrative remedies pursuant to 42 U.S.C. 1997e(a) prior to filing this action and that plaintiff failed to state a claim upon which relief may be granted. The motion was fully briefed. On May 7, 2015, plaintiff filed a motion for leave to file ex parte and later filed a motion to delay ruling on defendant Lightsey's motion to dismiss as well as a motion to take the deposition of Nurse Bratcher. Defendant Lightsey filed a motion to strike several of plaintiff's filings.

On May 28, 2015, the court entered an order directing defendant Lightsey to supplement his motion to dismiss to provide evidentiary support, including copies of all grievances that plaintiff filed in relation to this action and a supporting affidavit, for his affirmative defense that plaintiff failed to exhaust his administrative remedies. The court also provided the parties notice of its intent to construe defendant Lightsey's motion to dismiss as a motion for summary judgment and directedthe clerk of court to issue a Rule 56 letter. The court, additionally, granted defendant Lightsey's motion for a protective order and denied without prejudice plaintiff's two motions to compel. As for plaintiff's motion for leave to file an ex parte pleading, the court provided plaintiff 14 days to state why his filing should be considered ex parte. The court granted defendant Lightsey's motion to strike in part and denied it in part. The court granted the motion to strike as to plaintiff's first and second responses to defendant Lightsey's answers, but denied the remainder of the motion. Finally, the court denied without prejudice plaintiff's motion to delay ruling on defendant Lightsey's motion to dismiss.

On the same date, plaintiff filed a motion seeking ruling on interrogatories. Then, on June 4, 2015, plaintiff responded to the court's May 28, 2015, order and provided clarification as to his request to file a motion ex parte. On June 17, 2015, defendant Lightsey supplemented his pending motion for summary judgment and submitted the affidavit of Finesse G. Couch.¹ Plaintiff responded to defendant Lightsey's supplemental filing, and defendant Lightsey replied.

On July 7, 2015, defendant Sierra filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). The motion was fully briefed. On September 2, 2015, defendant Sierra filed a motion for a protective order, which also was fully briefed.

STATEMENT OF FACTS

The facts viewed in the light most favorable to plaintiff are as follows. Plaintiff's complaint relates to medical care he received from defendants Lightsey, Lawson, Henderson, and Sierra while he was incarcerated at Polk Correctional Institution ("Polk"). Plaintiff had hernia surgery on March 13, 2014. (Couch Aff. Ex. 11.) The next day, defendant Lightsey "punc...