Chambers v. Ishee et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION
CIVIL CASE NO. 5:23-cv-00005-MR

PATRICKJ. CHAMBERS,
Plaintiff,

VS. ORDER
TODD ISHEF, et al.,

Defendants.

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THIS MATIER is before the Court on Plaintiffs pro se “Objection of
Order of Dismissal Without Prejudice” [Doc. 14].

The incarcerated pro se Plaintiff filed this civil nghts action pursuant to
42 U.S.C. § 1983, alleging that multiple Defendants were deliberately
indifferent to a serious medical need at the Alexander Correctional Institution
on September 30, 2021. On Apnil 17, 2023, the Court entered an Order
finding that the Plaintiff had stated plausible deliberate indifference claims
against Defendants Lisa Huffman and Kelly A. Towery (A.K.A. Kelly A.
Reynolds); the remaining claims were dismissed without prejudice for failure
to state a claim upon which relief can be granted. [Doc. 9]. The Court

explained that the Plaintiff's allegations were too vague and conclusory to

INFORMATION

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state a deliberate indifference claim and/or that the Plaintiff appeared to rely
on respondeat superior, which cannot support a § 1983 claim. [Id.].
The Plaintiff has now filed an “Objection” in which he argues that the
Complaint should have been allowed to pass initial review against all
Defendants because a “serious medical need … was documented as chronic
disease in (HERO) database and verbally expressed to unit floor staff.” [Doc.
14 at 5].
“[A] district court retains the power to reconsider and modify its
interlocutory judgments . . . at any time prior to final judgment when such is
warranted.” Am. Canoe Ass’n v. Murphy Farms, Inc., 326 F.3d 505, 514–15
(4th Cir. 2003); see also Fed. R. Civ. P. 54(b).
The Plaintiff’s present Objection is essentially an expression of
disagreement with the Court’s prior conclusion that he had failed to state a
claim. The Plaintiff has failed to set forth any legitimate basis to reconsider
or amend the Order on initial review of the Complaint. Accordingly, the
Objection is denied.
To the extent that the Plaintiff’s Objection constitutes an attempt to
assert additional allegations in support of his claims, he has failed to comply
with the Federal Rules of Civil Procedure and, in any event, piecemeal
Case 5:23-cv-00005-MR Document 17 Filed 06/20/23 Page 2 of 4

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pleading will not be allowed. See Fed. R. Civ. P. 15 (addressing
amendment).
However, the Court will allow the Plaintiff thirty (30) days to amend his
Complaint, if he so chooses, to correct the deficiencies identified in the Order
on initial review of the Complaint and to otherwise properly state a claim upon
which relief can be granted. Any Amended Complaint will be subject to all
timeliness and procedural requirements and will supersede his prior filings.
Piecemeal amendment will not be allowed. Should the Plaintiff fail to timely
amend his Complaint in accordance with this Order, the matter will proceed
only on the claims previously identified by the Court [see Doc. 9].
IT IS, THEREFORE, ORDERED that:
1. The Plaintiff’s pro se pro se “Objection of Order of Dismissal
Without Prejudice” [Doc. 14] is DENIED.
2. The Plaintiff shall have thirty (30) days in which to amend his
Complaint in accordance with the terms of this Order. If Plaintiff
fails to amend the Complaint in the instant case in accordance
with this Order and within the time limit set by the Court, this
action will proceed only on the claims previously identified by the
Court [see Doc. 9].
Case 5:23-cv-00005-MR Document 17 Filed 06/20/23 Page 3 of 4

IT IS SO ORDERED.
Suite Didigs
Martin Reidinger Chief United States District Judge
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Case 5:23-cv-00005-MR Document 17
Filed 06/20/23
Page 4 of 4