Shook v. McNally et al

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:24-cv-00100-MR
JESSE LEE SHOOK, )
)
Plaintiff, )
)
vs. )
)
CHARLES J. MCNALLY, et al., ) ORDER
)
Defendants. )
_______________________________ )
THIS MATTER is before the Court on initial review of the pro se
Second Amended Complaint [Doc. 19]. The Plaintiff is proceeding in forma
pauperis. [Doc. 9].
I. BACKGROUND
The incarcerated pro se Plaintiff filed this civil rights action pursuant to
42 U.S.C. § 1983, addressing incidents that allegedly occurred at the
Mountain View Correctional Institution (“MVCI”). [Doc. 1]. The Plaintiff
attempted to amend on a piecemeal basis, which was denied, and Plaintiff
was granted the opportunity to amend. [Doc. 10]. The Amended Complaint
was dismissed on initial review and the Plaintiff was, again, granted the
opportunity to amend. [Docs. 14, 17]. The superseding Second Amended
Complaint is now before the Court for initial review. [Doc. 19].
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The Plaintiff again names as Defendants Nurse Practitioner Charles J.
McNally and Nurse Narma Biddix. He asserts claims for “delayed medical
treatment 8th Amendment deliberate indifference.”1 [Doc. 19 at 3, 5]. The
Plaintiff again alleges that he was assaulted in the dayroom by another
inmate on June 30, 2022, resulting in a tricep tear, for which an outside
orthopedic specialist ordered “urgent” surgery on August 19, 2022. [Doc. 19-
1 at 2-3; see id. at 13 (Orthopedic Report)]. The Plaintiff alleges that the
Defendants knew that the surgery was “urgent,” yet they refused to submit
the order to the UR board immediately because there was “too much going
on and that time”; that the Defendants told the Plaintiff that the order would
be submitted the next morning but that did not come to pass; and that the
Defendants acted “intentional[ly] and [were] incompetent” by “choosing to
ignore, overlook, not pay attention to” the orthopedic surgeon’s request. [Id.
at 1-4]. On October 18, 2022, the Plaintiff complained about “not having
surgery yet, pain, suffering, and injury getting worse.” [Id. at 4]. On October
19, 2022, the surgical order was submitted to U.R., and the Plaintiff received
surgery on November 3, 2022, by which point the tricep had retracted further
1 A section titled “Second Amendment” appears to refer to the fact that this is a Second
Amended Complaint; the Plaintiff does not appear to assert a violation of his Second
Amendment rights. [Doc. 19-1 at 3]. Any such claim would be dismissed because it is
unsupported by any factual allegations.
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and was more difficult to repair. [Id. 3-5; see Doc. 20 at 4-5]. The Plaintiff
claims that the delayed surgery resulted in additional pain and permanent
disability. [Id. at 4-5]. He seeks damages. [Id. at 5].
II. STANDARD OF REVIEW
Because the Plaintiff is proceeding in forma pauperis, the Court must
review the Second Amended Complaint to determine whether it is subject to
dismissal on the grounds that it is “frivolous or malicious [or] fails to state a
claim on which relief may be granted.” 28 U.S.C. § 1915(e)(2). Furthermore,
under § 1915A the Court must conduct an initial review and identify and
dismiss the complaint, or any portion of the complaint, if it is frivolous,
malicious, or fails to state a claim upon which relief may be granted; or seeks
monetary relief from a defendant who is immune to such relief. 28 U.S.C. §
1915A.
In its frivolity review, this Court must determine whether a complaint
raises an indisputably meritless legal theory or is founded upon clearly
baseless factual contentions, such as fantastic or delusional scenarios.
Neitzke v. Williams, 490 U.S. 319, 327-28 (1989). Furthermore, a pro se
complaint must be construed liberally. Haines v. Kerner, 404 U.S. 519, 520
(1972). However, the liberal construction requirement will not permit a
district court to ignore a clear failure to allege facts in his Complaint which
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set forth a claim that is cognizable under federal law. Weller v. Dep’t of Soc.
Servs., 901 F.2d 387 (4th Cir. 1990).
III. DISCUSSION
The Plaintiff again asserts claims for deliberate indifference to a
serious medical need against Defendants McNally and Biddix.2 Taking the
Plaintiff’s allegations as true and giving him the benefit of every reasonable
inference, the Court finds that the Plaintiff’s deliberate indifference claims
minimally pass initial review as they are not clearly frivolous.
IV. CONCLUSION
In sum, the Plaintiff’s Second Amended Complaint passes initial review
on the Plaintiff’s claims for deliberate indifference to a serious medical need.
This Court’s Local Rule 4.3 sets forth the procedure to waive service
of process for current or former employees of NCDPS in actions filed by
North Carolina State prisoners. In light of the Court’s determination that this
case passes initial review, the Court will order the Clerk of Court to
commence the procedure for waiver of service as set forth in Local Civil Rule
4.3 for Defendants McNally and Biddix, who are alleged to be current or
former employees of NCDPS.
2 The applicable legal standards are set forth in the Court’s Order on initial review of the
Amended Complaint. [See Doc. 17 at 4-6].
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ORDER
IT IS, THEREFORE, ORDERED that
1. The Plaintiff’s Second Amended Complaint [Doc. 19] passes
initial review on the Plaintiff’s claims for deliberate indifference
to a serious medical need.
2. The Clerk of Court shall commence the procedure for waiver of
service as set forth in Local Civil Rule 4.3 for Defendants
Charles J. McNally and Narma Biddix, who are alleged to be
current or former employees of NCDPS.
3. IT IS FURTHER ORDERED that the Clerk shall mail the Plaintiff
an NCPLS Opt-In/ Opt-Out form pursuant to the Standing Order
in Misc. Case No. 3:19-mc-00060.
IT IS SO ORDERED.
Signed: November 5, 2024
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