Moore v. Bennette

• Decision Date: 28 February 2008
• Docket Number: No. 06-6696.,06-6696.
• Parties: Michael Wayne MOORE, Plaintiff-Appellant, v. James B. BENNETTE; George E. Currie; Joseph Lightsey; Richard T. Jones; Tonia Rodgers, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

517 F.3d 717

Michael Wayne MOORE, Plaintiff-Appellant, v. James B. BENNETTE; George E. Currie; Joseph Lightsey; Richard T. Jones; Tonia Rodgers, Defendants-Appellees.

No. 06-6696.

United States Court of Appeals, Fourth Circuit.

Argued: December 5, 2007.

Decided: February 28, 2008.

ARGUED: Thomas Edward Vanderbloemen, Gallivan, White & Boyd, P.A., Greenville, South Carolina, for Appellant. Elizabeth P. McCullough, Young, Moore & Henderson, P.A., Raleigh, North Carolina; Yvonne Bulluck Ricci, North Carolina Department of Justice, Raleigh, North Carolina, for Appellees. ON BRIEF: Dana H. Davis, Young, Moore & Henderson, P.A., Raleigh, North Carolina, for Appellee Joseph Lightsey.

Before TRAXLER and DUNCAN, Circuit Judges, and JAMES P. JONES, Chief United States District Judge for the Western District of Virginia, sitting by designation.

Affirmed in part, reversed in part, and remanded by published opinion. Judge TRAXLER wrote the opinion, in which Judge DUNCAN and Judge JONES joined.

OPINION

TRAXLER, Circuit Judge:

Michael Wayne Moore appeals the dismissal of his civil rights complaint on the basis that he failed to exhaust his administrative remedies and failed to state a claim upon which relief could be granted. We affirm in part, reverse in part, and remand.

I.

A.

The following is a summary of the relevant facts alleged in the parties' pleadings and contained in the attachments thereto. In early 2002, Moore was a prisoner in the Southern Correctional Institute ("Southern") in the North Carolina Department of Correction ("NCDOC"). While he was there, a prison physician diagnosed Moore with Hepatitis C and became concerned that Moore's pancreas, which was swollen, could be cancerous. The doctor explained that Moore would need regular monitoring.

Shortly thereafter, Moore and other inmates allegedly witnessed an attack by several prison guards upon inmate Roger Bryant. Moore sent Bryant's mother a letter the following day, informing her about the attack and offering to help document what he and other witnesses saw. When Bryant's mother began to investigate the allegations, Moore alleges he was warned by the unit manager at Southern that he should not get involved. Moore insisted, however, that he wanted to see justice done.

A week after the assault, Moore had collected written accounts from several inmates and had sealed them in two large legal envelopes with postage sufficient to mail them to Bryant's mother. Before he could mail them, however, members of the NCDOC Prison Emergency Response Team are alleged to have appeared at his cell in riot gear and transported him to the prison's receiving area with Moore wearing only his underwear. Several other inmates, most of whom had provided statements regarding the attack, were rounded up in the same manner.

Moore was sent directly to a maximum security facility in Tillery, North Carolina. All of his privileges were revoked, and Moore alleges his written statements concerning the attack were seized. Three days later, Moore was transferred to a high security maximum control unit, known as a "Supermax" unit, at Polk Correctional Institute in Butner, North Carolina. He was placed on "strict suicide watch." J.A. 24 (internal quotation marks omitted). He was told he was on "`Administrative seg.' pending investigation," and he was "refused all privileges and opportunities due to any other inmate on 'Admin. Seg.'" J.A. 83. In his cell, Moore was constantly monitored via video camera, and he was not allowed contact with anyone in his family or with a lawyer for several days. In fact, he states he remained in isolation for several more weeks although mental health staff later determined that he was not suicidal.

The NCDOC provides an administrative remedy procedure for prisoner complaints ("the ARP"). As is relevant here, Step 1 of the procedure allows for the filing of grievances on a "Form DC-410," J.A. 143, which asks for the inmate's name, number, and location, as well as the date, a "Grievance Statement," J.A. 152, the remedy that the inmate seeks, and the inmate's signature. Under the rules, the inmate must receive a formal written response to his grievance within 15 days from the date on which the grievance is accepted. Should the inmate decide to appeal, he will receive a Step 2 written response within 20 days from the appeal request. And, should the inmate decide to appeal further, he will receive a Step 3 written response within 20 days from the date of that appeal. The rules prohibit an inmate from submitting a new grievance before all previously filed grievances have completed Step 2 or been resolved. However, that rule does not apply to emergency grievances, which are defined as "matters which present a substantial risk of physical injury or other serious and irreparable harm to the grievant if regular time limits are followed." J.A. 145. A grievance may be rejected because, among other reasons, "[t]here has been a time lapse of more than one year between the event and submission of the grievance" or if it requests a remedy "for more than one incident." J.A. 144.

Moore availed himself of this process on February 6, 2002, filing Grievance No. 3980-02-0249. The grievance complained of Moore's transfer to a maximum security prison, and then to Polk, as well as the aforementioned conditions in his cell and the revocation of all of his privileges. The grievance claimed that Moore was being "punished" for actions he was never charged with, J.A. 140, and indeed that he was never even informed of what he did to bring about the punishment. He requested that he be removed from Polk and placed in a prison where he could have his privileges returned. The grievance was rejected the day after it was submitted, however, because it concerned "more than one issue[ ]." J.A. 136.

After arriving at Polk, Moore informed the prison medical staff of his Hepatitis C as well as his potentially cancerous pancreas and the fact that he would need regular monitoring and blood work. The prison medical department also received a copy of his medical records. Three weeks after he had been transferred to Polk, medical personnel performed two sonograms but failed to give Moore sufficient prior notice so that he could refrain from eating and drinking beforehand. Because Moore had eaten throughout the day, the sonograms did not produce a sufficiently clear image of Moore's pancreas. Three weeks after the ineffective sonograms, Moore reported to a nurse that his stomach had been hurting for several weeks. Although the nurse told him that test results would be available the next day, Moore did not receive any.

Consequently, on March 25, 2002, Moore submitted Grievance No. 3980-02-0584, which explained the history of his pancreas problem and provided an account of the follow-up treatment he had received. In the grievance, Moore asserted that not only had the sonograms not been performed adequately, but they also were not performed in a timely manner. He further expressed concern that his inadequate medical care was in retaliation for the events that led to his transfer to Polk. The Step 1 response to the grievance determined that an ultrasound had been performed on February 13, 2002, that the results were in Moore's chart, and that a CT scan was scheduled for the near future. When Moore appealed, a Step 2 response added that medical personnel would explain the results of the scheduled CT scan to Moore when they arrived. Following another appeal, a Step 3 response stated that Moore's concern had been appropriately resolved.

During his time at Polk, Moore had developed pain in his left hand that rendered the hand useless for three months. On May 8, 2003, Moore submitted Grievance No. 3980-03-0742, alleging that prison medical staff had failed to give him adequate treatment for the condition for several weeks, and that when a nurse came to see him, the nurse only glanced at his hand through a thick plexiglass window before diagnosing Moore with gout. The nurse gave Moore ibuprofen and told him that he would have the doctor prescribe medication, but Moore never received any. Moore's grievance also included complaints of two other problems. It alleged that the same nurse had examined his ears through a trap door in his cell, which Moore alleged was "unethical." J.A. 161. The grievance further claimed that another nurse seeking to obtain a urine sample as part of a five-year physical for Moore sent a prison officer to collect the sample. The grievance acknowledged that when Moore complained to the officer, the nurse came to his cell and collected the sample herself. The grievance requested that the nurses involved in these incidents be reprimanded. It further asserted that it "should be considered as filed correctly even though more than one incident is alleged" because "[b]oth incidents show a distinct pattern of [i]nadequate medical care, and are related in respect to specific allegations I have made concerning a series of events that constitute discrimination and intentional deliberate indifference towards me individually by the medical staff here due to the [a]llegation of which I am currently on H-Con (claims that I had plot[t]ed to [h]arm medical staff elsewhere)." J.A. 160. The grievance nevertheless was rejected because it concerned more than one incident.

Moore also was frustrated with what he considered to be a lack of adequate medical treatment for his Hepatitis C condition. His dissatisfaction prompted him to twice write directly to defendant Dr. Joseph Lightsey, the chief physician for the Supermax unit, and once to defendant Richard T. Jones, Chief Medical Supervisor at Polk, complaining of the lack of care for his condition and explaining that it was only getting worse. Receiving no response, Moore filed Grievance No. 3980-03-0775, dated May 15, 2003, in which he claimed that this lack of treatment for the Hepatitis C was "part of [a]n on-going and [l]ong pattern of...