Fourth Circuit Reinstates North Carolina Prisoner’s Suit Over Flesh-Eating Infection
by David M. Reutter
On April 19, 2022, the U.S. Court of Appeals for the Fourth Circuit reversed the dismissal of a prisoner’s civil rights complaint, reviving his claims that North Carolina prison officials ignored a flesh-eating infection that left him seriously injured. In the process, the Court also laid out timing to adequately keep a claim alive under Federal Rules of Federal Procedure (FRCP).
While imprisoned at Tabor City Correctional Institution in early 2016, Patrick R. McGraw was ordered to perform landscape maintenance with a weed-eater. Afterward, he developed symptoms that included a “high fever, profuse sweating” and “a harsh cough which caused painful burning to his lungs,” as the Court recalled. He made a sick call request and was seen by a nurse, who allegedly ignored his complaints because his fever had broken. McGraw then filed two more sick call requests plus two emergency sick call requests, but those resulted in nothing more than “cough drops and Tylenol,” he said.
Rapidly losing 40 pounds, he experienced fevers, chest pain, and a bad cough. Beginning on April 28, 2016, he was sent to the first of several hospitals, where doctors eventually diagnosed a flesh-eating organism that had by then damaged his internal organs. McGraw underwent “multiple major surgeries,” the Court noted, and faced complications. The hospital doctors also told him that prompt and effective medical care could have mitigated the severity of his infection.
On April 25, 2019, not quite three years after he first saw a doctor for his ailment, McGraw sued the state Department of Corrections (DOC) and several “to be determined” defendants in federal court for the Eastern District of North Carolina. Proceeding under 42 U.S.C. § 1983, he accused them of ignoring his serious medical need, in violation of his Eighth Amendment guarantee of freedom from cruel and unusual punishment.
The district court notified McGraw that he had failed to sign his complaint, as required by FRCP 11(a). McGraw promptly cured that error. After screening the complaint, the court then found DOC was immune from suit under the Eleventh Amendment and ordered McGraw to file a particularized complaint naming individual defendants. McGraw complied, filing an amended complaint that named nurses Theresa C. Gore and Nancy J. Wargas on October 24, 2019.
The district court screened that complaint on November 5, 2019. Since McGraw was proceeding in forma pauperis, it directed the U.S. Marshals Service (USMS) to effect service of the complaint by January 20, 2020 – or 90 days after the amended complaint was filed. Notice then reached Wargas, but not Gore; her mailing came back marked “refused/unable to return.”
McGraw moved for a time extension to effect service on Gore. Wargas moved to dismiss, arguing the claim against her was untimely, since the three-year statute of limitations had expired by the time McGraw’s amended complaint naming her was filed. The district court agreed. Finding the amended complaint did not “relate back” to the original under FRCP 15, it dismissed the claims against Gore and Wargas with prejudice.
McGraw appealed, having by then picked up representation from Greensboro attorneys David W. McDonald of Hicks McDonald Noecker LLP and Lenneka Hinton Feliciano of Pinto Coates Kyre & Bowers, PLLC.
Taking up the case, the Fourth Circuit found that McGraw met the first requirement of FRCP 15, since the amended complaint arose from the same “conduct, transaction, or occurrence” set out in the original pleading. Moreover, his claim accrued when he was hospitalized on April 26, 2016, and any alleged delay in providing medical treatment ended. Thus, he was just within the three-year statute of limitations when he first filed his complaint.
At issue was the notice requirement of FRCP 15(c), which bars amendment of a complaint that “changes the party or naming of the party against whom a claim is asserted.” Under that provision, service must be effected upon the defendant under FRCP 4(m), which incorporates a 90-day notice period after the complaint is filed. Given that the amended complaint was filed on October 24, 2019, service should have been completed on named defendants by January 20, 2020 – two weeks before USMS was able to serve Wargas.
However, the Court found controlling its decision in Robinson v. Clipse, 602 F.3d 605 (4th Cir. 2010). There it held that “a party must be on notice within the time allowed for service under Rule 4(m), not within the statute of limitations of the plaintiff’s claim.” Wargas was served on February 3, 2020, exactly 90 days after the district court completed its screening of the case and authorized USMS to effect service on defendants on November 5, 2019.
Thus, since Wargas was timely served under Rule 4(m), dismissal of the claim against her was error, the Court said. But the issue was more complicated as to Gore because she was never served. Yet McGraw had quickly moved for an extension to effect service upon her.
That issue was also addressed by Robinson, the Court continued, noting that “where an in forma pauperis plaintiff, like McGraw, has no control over the delay of the service of process by the Marshals Service, that delay ‘constitutes good cause requiring’ a Rule 4(m) extension.” Thus the district court’s decision was vacated and the case remanded, with instructions to the lower court to determine that extension was appropriate under the circumstances. See: McGraw v. Gore, 31 F.4th 844 (4th Cir. 2022).
The case has now returned to the district court, where trial is set for October 24, 2023. PLN will report updates as they are available. See: McGraw v. Gore, USDC (E.D.N.C.), Case No. 5:19-ct-03116.
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