Robert T. Numbers, II United States Magistrate Judge

Memorandum & Recommendation

Plaintiff Joe Smith, a former state inmate proceeding pro se, commenced this action under 42 U.S.C. § 1983. This matter is currently before the court on defendants' motion for summary judgment (D.E. 18). After reviewing the parties' submissions, the undersigned recommends that the district court allow the motion and dismiss Smith's complaint.

I. Background

Smith asserts that, while he was incarcerated at Harnett Correctional Institution ("Harnett"), he notified defendants Cynthia Thornton, Jamie Cobb, and Adrienne Graham that another inmate, McDuffie, was mentally ill and "constantly targeting [him] with threats." Compl. at 4, D.E. 1. These defendants allegedly ignored Smith's warnings. Duffie stabbed Smith's wrist in May 2016 seriously injuring him. Id. at 3-4.

Smith also claims that defendant "Dr. Brown" was deliberately indifferent to the serious injuries he sustained as a result of the alleged assault. Id. It is not entirely clear who Smith intends to identify with this label. At times, Smith describes the actions of Dr. Scott Wesley Brown, an emergency room doctor. See Compl. at 4, D.E. 1. In other filings, Smith refers to North Carolina Department of Public Safety ("DPS") employee Dr. Josephine Brown. See Pl. Resp. at 3, D.E. 23. Even more confusingly, Scott Brown appears to not be a state actor and Josephine Brown did not work for DPS at the time of this incident. See, e.g., Agarwal Aff. ¶¶ 5, 7, D.E. 19-4 (noting that DPS did not employ Josephine Brown until March 2017 and that Scott Brown never worked for DPS).

Duffie did stab Smith. But Smith at first told prison officials that he injured himself killing an insect in his locker. Graham Aff. ¶ 15, D.E. 19-5. Prison officials investigated the incident and determined that Duffie stabbed Smith with a pen during an altercation in which Duffie accused Smith of stealing property. Def. Ex. G-2 at 2, D.E. 19-7. Prison officials eventually found Duffie guilty of a disciplinary infraction for assaulting another inmate. Id.

Smith received treatment for his injuries at Harnett Central Hospital Emergency Department. Def. Ex. D, D.E. 19-2. Dr. Scott Wesley Brown, an employee of Harnett Health System, provided this treatment. Id. Brown performed a complete physical examination of Smith. Id. at 3-5. During this examination, Smith reiterated that he suffered the injury trying to kill a spider. Id. at 4. Scott Brown noted that Smith had a one-centimeter laceration on his left wrist. Id. Scott Brown also observed that Smith had a "[b]allpoint pen spring and a portion of the ink cartridge . . . lodged in his forearm." Id. at 5. Scott Brown tried to remove these items from Smith's forearm, but he did not succeed. Id. Brown then sutured the area. Id. Afterward, Scott Brown consulted with an orthopedist about Smith's injuries. Id. at 7. Scott Brown also ordered x-rays of Smith's left wrist. Id. at 2. The x-rays revealed no abnormalities. Id. Smith eventually stated he was feeling better and was ready to return to prison. Id. at 7. Scott Brown prescribed antibiotics and pain medication to treat Smith's injuries. Id. Scott Brown directed Smith to follow-up with the prison orthopedist, and also noted that Smith should have his sutures removed in seven days. Id. at 8-9. Smith then returned to Harnett, and Brown was no longer responsible for his care. See, e.g., Agarwal Aff. ¶ 7, D.E. 19-4; Def. Ex. G-2 at 5, D.E. 19-7 (noting Smith "was transported to an outside medical facility . . . and returned without incident");

During the period relevant to this action, Smith filed two grievances. Def. Ex. A & B, D.E. 17-2 & 17-3. In his first grievance, Smith stated:

On 10 May 2016, while housed and locked into block 0-3-4, I was stabbed in the left arm by inmate Lindwood McDuffie. The officers were not awake due to their negligence in the performance of their duty because they were sitting at their desk all [illegible] talkings or whatever, and not making any rounds. After informing officer Jenkins and Thomas, I declared an "Emergency" Sick call.

Smith's second grievance says:

Medical has shown a deliberate indifference to my serious medical need being I've complained about my right finger injury, and it has taken over 3 1/2 week[s] for this injury to be addressed by competent medical personnel who are medically trained to address an injury.

Smith filed his complaint in February 2017, and his claims survived frivolity review. (D.E. 1, 9). Defendants filed this motion for summary judgment in March 2018, and Smith responded (D.E. 22, 23, 24). In December 2018, the State of North Carolina released Smith from custody. Smith did not provide the court with a forwarding address.

II. Discussion

A. Standard of Review

Summary judgment is appropriate when an examination of the pleadings, affidavits, and other proper discovery materials before the court shows that "there is no genuine dispute as to any material fact," thus entitling the moving party to judgment as a matter of law. Fed. R. Civ. P. 56(a); see Tolan v. Cotton, 572 U.S. 650, 656-57 (2014). In making this determination, "the nonmoving party's evidence is to be believed, and all justifiable inferences are to be drawn in that party's favor." News & Observer Publ'g Co. v. Raleigh-Durham Airport Auth., 597 F.3d 570, 576 (4th Cir. 2010) (quoting Hunt v. Cromartie, 526 U.S. 541, 552 (1999)); accord Tolan, 134 S. Ct. at 1866.

The movant carries the initial burden of showing that no genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). A fact is "material" if proof of its existence or non-existence might affect the outcome of the litigation. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). And a factual dispute is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. The movant discharges this burden by identifying "an absence of evidence to support the nonmoving party's case." Celotex Corp., 477 U.S. at 325. In response, the non-movant must identify specific facts showing there is a genuine issue for trial. Id. at 323. In so doing, the non-movant may rely on a verified complaint when allegations in the document are based on personal knowledge. Williams v. Griffin, 952 F.2d 820, 823 (4th Cir. 1991). Conclusory allegations and speculation do not suffice. Thompson v. Potomac Elec. Power Co., 312 F.3d 645, 649 (4th Cir. 2002). If the non-movant fails to introduce evidence contradicting a fact supported by the movant's evidence, the court may "consider the fact undisputed for summary judgment purposes." Fed. R. Civ. P. 56(e)(2). If the non-movant fails to meet his burden, summary judgment must be granted. Celotex, 477 U.S. at 322.

B. Failure to Prosecute

As noted, Smith left state custody in December 2018, but has not provided the court with a forwarding address as required by the court's Local Rules. See Local Civil Rule 83.3, E.D.N.C. Accordingly, it appears Smith has abandoned this action. Smith's failure to prosecute provides an alternative basis for dismissing his claims.

C. Failure to Exhaust

Defendants argue that they are entitled to summary judgment because Smith failed to exhaust his administrative remedies. The Prison Litigation Reform Act of 1995 ("PLRA") provides 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). "[E]xhaustion is mandatory," and "unexhausted claims cannot be brought in court." Jones v. Bock, 549 U.S. 199, 211 (2007); accord Ross v. Blake, 136 S. Ct. 1850, 1856 (2016). To properly exhaust his administrative remedies, an inmate must establish "[c]ompliance with [the relevant state prison's] grievance procedures." Jones, 549 U.S. at 218. In North Carolina, proper exhaustion requires following a three-step administrative remedy procedure ("ARP"). See DPS Policy & Proc., Administrative Remedy Proc. Ch. G § .0310; see also Moore v. Bennette, 517 F.3d 717, 725 (4th Cir. 2008). Failure to exhaust administrative remedies is an affirmative defense that a defendant must generally plead and prove. See Jones, 549 U.S. at 216.

Smith filed two grievances, quoted above. Def. Ex. A at 3, D.E. 17-2; Def. Ex. B at 3, D.E. 17-3. The grievances do not specifically identify the defendants later listed in Smith's complaint. This is not necessarily fatal. See Jones, 549 U.S. at 219 ("[E]xhaustion is not per se inadequate simply because an individual later sued was not named in the grievance."). Rather, to satisfy the exhaustion requirement, a grievance must give prison authorities fair notice of, and the opportunity to address, the problem that will later underlie the lawsuit. See Moore v. Bennette, 517 F.3d 717, 729 (4th Cir. 2008). Even read liberally, however, Smith's grievances fail to provide the required notice.

Smith first claims is that Thornton, Cobb, and Graham were deliberately indifferent to the threat a mentally ill inmate posed to Smith's safety. But Smith's grievances do not mention Duffie's alleged mental illness or history of threatening behavior. The grievances do not show Smith alerted any prison official to the alleged danger presented by Duffie. Rather, his grievances name two individuals unrelated to this action, alleging they failed to complete their rounds on one specific occasion.

Smith also alleges "Dr. Brown's" deliberate indifference to his serious medical needs. But the only grievance Smith submitted appears to address an injury to his right finger while the complaint addresses injuries to Smith's left wrist and forearm. And the fact that neither this court nor defendants are sure which "Dr. Brown" Smith refers to highlights the inadequacies of his grievances.

In summary, Smith's grievances are too unrelated to the claims raised in his complaint to satisfy the exhaustion requirement. Thus, his claims should be dismissed.

D. Smith's Claims Against Scott Brown

Even if exhausted, any potential claim against Scott Brown fails. First, he is not subject to suit under § 1983 because as a private actor he did not act under color of state law. See Gomez v. Toledo, 446 U.S. 635, 640, 100 (1980); Hall v. Quillen, 631 F.2d 1154, 1155-56 & nn. 2-3 (4th Cir. 1980); Ramirez v. Bayer, Civil No. 4:09-CV-247, 2010 WL 1425782 (M.D. Pa. Mar. 12, 2010) ("In fact, it is evident that the state played no role directing how Carpenter or Beyer exercised their medical judgment in assessing and treating Ramirez's complaints. Therefore, in its current form her constitutional claims against these private defendants are clearly inadequate and should be dismissed."); McIlwain v. Prince William Hosp., 774 F. Supp. 986, 989 (E.D. Va. 1991) ("A hospital's mere acceptance of a prison inmate for emergency care does not transform the hospital into a state actor.").

In any event, even if Scott Brown were subject to § 1983, Smith's Complaint would still not state a claim for relief. As for medical care, a prisoner in a § 1983 action "must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs." Estelle v. Gamble, 429 U.S. 97, 105-106 (1976) (not "every claim by a prisoner that he has not received adequate medical treatment states a violation."). Negligent or incorrect medical treatment is not actionable under 42 U.S.C. § 1983, nor is medical malpractice. Estelle v. Gamble, 429 U.S. at 106 ("Medical malpractice does not become a constitutional violation merely because the victim is a prisoner."). In fact, negligence, in general, is not actionable under 42 U.S.C. § 1983; see Daniels v. Williams, 474 U.S. 327, 328-36 & n. 3 (1986); Davidson v. Cannon, 474 U.S. 344, 345-48 (1986); Pink v. Lester, 52 F.3d 73 (4th Cir. 1995) ("The district court properly held that Daniels bars an action under § 1983 for negligent conduct[.]"). Nor does Section § 1983 impose liability for violating duties of care arising under state law. DeShaney v. Winnebago Cty Dep't of Soc. Servs, 489 U.S. 189, 200-203 (1989). Here, the record clarifies that Scott Brown treated Smith's injuries. That this treatment did not succeed, or, as Smith argues, negligent, fails to state a claim. Similarly, Scott Brown is not liable simply because DPS may have failed to provide proper follow-up treatment. For these reasons, Smith's claims against Scott Brown fail on the merits.

III. Conclusion

For the reasons stated above, the court recommends allowing defendants' summary judgment motion (D.E. 18) and dismissing Smith's complaint. The claims against Dr. Scott Wesley Brown should be dismissed with prejudice, and all other claims should be dismissed without prejudice.

The Clerk of Court must serve a copy of this Memorandum and Recommendation ("M&R") on each party who has appeared in this action. Any party may file a written objection to the M&R within 14 days from the date the Clerk serves it on them. The objection must specifically note the portion of the M&R that the party objects to and the reasons for their objection. Any other party may respond to the objection within 14 days from the date the objecting party serves it on them. The district judge will review the objection and make their own determination about the matter that is the subject of the objection. If a party does not file a timely written objection, the party will have forfeited their ability to have the M&R (or a later decision based on the M&R) reviewed by the Court of Appeals. Dated: February 7, 2019

/s/_________

Robert T. Numbers, II

United States Magistrate Judge