Nunn v. Hunt

• Decision Date: 06 September 2012
• Docket Number: No. 5:11-CT-3222-D,5:11-CT-3222-D
• Court: U.S. District Court — Eastern District of North Carolina
• Parties: MYRON RODERICK NUNN, Plaintiff, v. NORA D. HUNT, et al., Defendants.

MYRON RODERICK NUNN, Plaintiff,

v.NORA D. HUNT, et al., Defendants.

No. 5:11-CT-3222-D

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

Dated: September 6, 2012

ORDER

On November 4, 2011, Myron Roderick Nunn ("Nunn" or "plaintiff'), a state inmate, filed this action under 42 U.S.C. § 1983 [D.E. 1]. Nunn proceeds pro se and in forma pauperis [D.E. 2]. On November 30, 2011, and January 20, 2012, Nunn filed motions to amend bis complaint, along with copies of grievances [D.E. 7, 10]. On December 20, 2011, Nunn filed a motion for a preliminary injunction [D.E. 8]. On January 13 and March 13, 2012, Nunn filed motions challenging the court's collection of filing fees [D.E. 9, 11]. As explained below, the court grants the motion to amend the complaint and denies the remaining motions.

I.

Courts must review complaints in civil actions in which prisoners seek relief from a governmental entity or officer, and dismiss a complaint if it "is frivolous, malicious, or fails to state a claim upon which relief may be granted . . . ." 28 U.S.C. § 1915A(a)-(b)(l). A case is frivolous if "it lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989). "Legally frivolous claims are based on an indisputably meritless legal theory and include claims of infringement of a legal interest which clearly does not exist." Adams v. Rice, 40 F.3d 72, 75 (4th Cir. 1994) (quotations omitted). Factually frivolous claims lack an "arguable basis" in fact.Neitzke, 490 U.S. at 325. The standard used to evaluate the sufficiency of the pleading is flexible, and a pro se complaint, "however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." Erickson v. Parous, 551 U.S. 89, 94 (2007) (per curiam) (quotation omitted). Erickson, however, does not undermine the "requirement that a pleading contain 'more than labels and conclusions."' Giarratano v. Johnson, 521 F.3d 298, 304 n.5 (4th Cir. 2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)); see Asheroft v. Iqbal, 556 U.S. 662, 677-80 (2009); Coleman v. Md. Ct. of Appeals, 626 F.3d 187, 190 (4th Cir. 2010), aff'd, 132S. C11327 (2012): Nemet Chevrolet Ltd. v. Comumeraffairs.com. Inc., 591 F.3d 250, 255-56 (4th Cir. 2009); Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009).

A party may amend his pleading once as a matter of course within twenty-one days after service, or, if the pleading requires a response, within twenty-one days after service of the response or service of a motion under Rule 12(b), (e), or (f). Fed. R. Civ. P. 15(a)(1). Otherwise, a party may amend his pleading only with the written consent of the opposing party or with leave of court. Fed. R. Civ. P 15(a)(2). Because Nunn's complaint is subject to review under section 1915A, no defendant has been served. Accordingly, Nunn's motions to amend [D.E. 7, 10] are panted, and the court reviews these additional materials together with the original complaint to determine whether Nunn has stated a claim upon which relief may be granted.

"To state a claim under [section] 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law." West v. Atkins. 487 U.S. 42, 48 (1988); Philips v. Pitt Cnty. Mem'l Hosp., 572 F.3d 176, 180 (4th Cir. 2009). Additionally, a section 1983 plaintiff must allege the personal involvement of a defendant. See, e.g., Iqbal, 556 U.S. at 676; Monell v. Dep't of Soc. Servs., 436 U.S. 658,691-92 (1978); Wright v. Collins, 766 F.2d 841,850(4th Cir. 1985). Deliberate indifference to a prisoner's serious medical needs violates his Eighth Amendment rights. Estelle v. Gamble, 429 U.S. 97, 104(1976). To prove such a claim, Nunn "must demonstrate that the officers acted with 'deliberate indifference' (subjective) to [bis] 'serious medical needs' (objective)." Iko v. Shreve, 535 F.3d 225,241 (4th Cir. 2008) (quoting Estelle, 429 U.S. at 104). In cases involving the denial of or delay in providing medical treatment to a prisoner, the prison official must know of and disregard an objectively serious condition, medical need, or risk of harm. See, e.g., Sosebee v. Murphy, 797 F.2d 179, 182-83 (4th Cir. 1986). A prisoner, however, is not entitled to choose his course of treatment. See Russell v. Sheffer, 528 F.2d 318, 318-19 (4th Cir. 1975) (per curiam). Likewise, mere negligence in diagnosis or treatment does not state a constitutional claim. See, e.g.. Estelle, 429 U.S. at 105-06.

The court first addresses Nunn's claims arising at Albemarle Correctional Institution ("Albemarle").¹ A court determines the proper venue for an action pursuant to 28 U.S.C. § 1391. Section 1391(b) governs venue in actions in which jurisdiction is not premised solely on diversity of citizenship. See 28 U.S.C. § 1391(b). Specifically, section 1391(b) provides that such actions may

be brought only in (1) a judicial district where any defendant resides, if all defendants reside in the same State, (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated, or (3) a judicial district in which any defendant may be found, if there is no district in which the action may otherwise be brought.

Id.

Albemarle is located in Stanly County, which is in the Middle District of North Carolina. N.C. Dep't of Pub. Safety, Division of Prisons, http://www.doc.state.nc.us/dop/prisons/albemarle.htm (last visited Sept. 6, 2012); see 28 U.S.C. § 113(b). Thus, venue is proper in that district. See 28 U.S.C. § 1391(b). Additionally, Nunn's attempt to bring a single action against defendants at different institutions implicates Rule 20(a)(2) of the Federal Rules of Civil Procedure, which states that

[p]ersons... may be joined in one action as defendants if;

(A) any right to relief is asserted against them jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and

(B) any question of law or fact common to all defendants will arise in the action.

Fed. R. Civ. P. 20(a)(2). Rule 20(a)(2) does not give to a plaintiff a license to join multiple defendants in a single lawsuit when the plaintiff's claims against the defendants are unrelated. See, e.g.. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007); Coughlin v. Rogers, 130 F.3d 1348, 1350-51 (9th Cir. 1997); Robinson v. Johnson, Civil Action No. 3:07CV449,2009 WL 874530, at *1 (E.D. Va. Mar. 26,2009) (unpublished); Showalter v. Johnson, Civil Action No. 7:08cv00276, 2009 WL 1321694, at *4-5 (W.D. Va. May 12, 2009) (unpublished). Accordingly, the court dismisses without prejudice plaintiffs' claims arising at Albemarle, along with defendant Hassan.

The court next addresses Nunn's additional claims contained in his second amended complaint [D.E. 10]. These claims arose after Nunn commenced the original action. The Prison Litigation Reform Act ("PLRA") states that "[n]o action shall be brought with respect to prison conditions under section 1983 . . . , or any other Federal law, by a prisoner . . . until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a); see Woodford v. Ngo, 548 U.S. 81, 83-85 (2006); Porter v. Nussle, 534 U.S. 516, 524 (2002). "[T]he PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong."Porter, 534 U.S. at 532; see Jones v. Bock, 549 U.S. 199, 211 (2007). A prisoner must exhaust administrative remedies regardless of the relief offered through administrative procedures. See Booth v. Churner, 532 U.S. 731, 740-41 (2001). "[E]xhaustion is mandatory under the PLRA and ... unexhausted claims cannot be brought in court." Jones, 549 U.S. at 211. Filing suit before exhausting administrative remedies dooms the action. See, e.g., Ford v, Johnson. 362 F.3d 395, 398-99 (7th Cir. 2004); Johnson v. Jones, 340 F.3d 624, 627-28 (8th Cir. 2003).

When an inmate files suit early, courts typically dismiss the action without prejudice. See, e.g., Ford, 362 F.3d at 401; Johnson v. Cannon, C.A. No. 4:08-776-PMD, 2010 WL 936706, at *8 (D.S.C. Mar. 15, 2010) (unpublished), aff'd, 390 F. App'x 256 (4th Cir. 2010) (per curiam) (unpublished); Shouse v. Madsen, Civil Action No. 7:09-cv-00461, 2010 WL 276543, at *1 (W.D. Va. Jan. 19, 2010) (unpublished). A dismissal without prejudice allows the prisoner an opportunity to exhaust the administrative process and then file a new suit, if the prisoner so chooses. Accordingly, because Nunn failed to exhaust the claims in his second amended complaint before filing suit, the court dismisses these claims without prejudice.

Nunn alleges that on several occasions, he has been deprived of his medically prescribed boots. [D.E. 1] 3; [D.E. 1-1] 1-3. Nunn alleges that on October 4, 2008, while he was incarcerated at Columbus Correctional Institution ("Columbus"), sergeant Goodwin confiscated his boots. [D.E. 1] 3. However, on October 10, 2008, defendant Hunt, the superintendent at Columbus, ordered Goodwin to return the boots. Id. On October 23, 2008, Nunn was transferred to Tabor Correctional Institution ("Tabor"), "at which time receiving staff confiscated [his] medical boots." Id. Nunn complained, and a nurse at Tabor requested correctional staff to return the boots, but defendant Kenworthy, the Tabor superintendent, "and the nurse supervisor at Tabor ... refused to allow the return of said boots, due to Tabor... being a 'bootless' prison," even though they were aware thatHunt "had [previously] determined that said boots be returned to the plaintiff on October 10, 2008 . . . ." Id. 4; [D.E. 1-1] 1. As a result, Nunn ...