Joseph SHAW, # 20445-26, Appellant,
v.
Ottis F. JONES; D.J. Ford; Bob Conerley, Sr.; Ms. ____ (Dietician, Cumberland County Jail); ____ Johnson, Appellees.
No. 8612SC136.
Court of Appeals of North Carolina.
June 17, 1986.*323 Joseph H. Shaw, pro se.
Larry J. McGlothlin, Fayetteville, for defendants-appellees.
PARKER, Judge.
When considering a motion for summary judgment, the question before the court is whether the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that a party is entitled to judgment as a matter of law. The burden upon the moving party may be carried by proving that an essential element of the opposing party's claim is nonexistent. Gray v. Hager, 69 N.C.App. 331, 317 S.E.2d 59 (1984).
In addition to Nurse Daniels' affidavit, plaintiff's own evidence established the non-existence of an essential element of his claim, to wit: that he had "serious medical needs" to which defendants could be deliberately indifferent. Dr. Stanley stated that both the medical records and his own personal examination of the plaintiff showed that "Shaw was not suffering any serious medical difficulty and was simply overweight." He also stated that plaintiff was placed on a diet at his own request for two weeks for the purpose of losing weight. Nurse Daniels, both in her affidavit and in her live testimony, corroborated this conclusion. Finally, Mr. Majette testified that his recollection was that plaintiff was on a 1200-calorie diet for only two weeks. Because the evidence presented by both parties established that there was no genuine issue of material fact with regard to plaintiff having a serious medical need, the court's granting of defendants' motion for summary judgment on this issue was proper.
In addition to granting defendants' motion for summary judgment, the court ordered plaintiff "to pay in full the costs of the defendants in defending this action, including reasonable attorney's fees" pursuant to 42 U.S.C. § 1988. There is no question that defendants were the "prevailing parties" in this case. The issue is whether, as a matter of discretion, they should be allowed to recover attorney's fees.
"Attorney's fees may be recovered as part of costs in state court proceedings instituted to enforce provisions of 42 U.S.C. § 1983." Lumber Co. v. Brooks, Comr. of Labor, 50 N.C.App. 294, 296, 273 S.E.2d 331, 333, appeal dismissed, 302 N.C. 398, 279 S.E.2d 357, cert. denied, 454 U.S. 1097, 102 S. Ct. 670, 70 L. Ed. 2d 638 (1981). As stated by this Court in Miller v. Henderson, 71 N.C.App. 366, 371-72, 322 S.E.2d 594, 598 (1984):
It is clear prevailing defendants as well as plaintiffs are entitled to an award of fees under § 1988. In order to be entitled to attorney's fees, however, a defendant must show that the action brought against him was "frivolous, unreasonable, or groundless, or that the plaintiff continued to litigate after it clearly became so." The defendant does not have to show the action was brought in subjective bad faith. (Citations omitted).
The gist of plaintiff's complaint was that the defendants intentionally and maliciously deprived him of his "medically prescribed diet," thereby expressing a "deliberate indifference to plaintiff's serious medical needs." However, besides the bare allegations in his complaint, plaintiff did not present one shred of evidence that he was in fact on a "medically prescribed diet" between 7 January 1985 through 9 January 1985. The affidavit of Nurse Daniels which was attached to defendants' motion asserted that "the medical record does not indicate that Shaw has a serious medical problem. He was and is merely overweight and needs not to eat as much. The 1200 calorie diet was to help him not eat as much." Assuming arguendo that plaintiff did not know of the true medical reasons for his "diet" at the time he commenced this action, he continued to litigate this *324 matter by subpoenaing four witnesses to the summary judgment hearing after he had been put on notice of the medical reasons for this diet, obesity, which in his case, fell far short of a serious medical need.
Recognizing that trial judges should "resist the understandable temptation to engage in post-hoc reasoning by concluding that, because a plaintiff did not ultimately prevail, his action must have been unreasonable or without foundation," Milburn v. Girard, 455 F. Supp. 283, 285 (E.D.Penn. 1978), we are unable to say the trial judge abused his discretion in awarding attorney's fees to the defendants under the facts of this particular situation. We do not reach this conclusion simply because summary judgment was properly entered against plaintiff. Although the Court in Miller, supra, "agree[d] that plaintiff's claims were meritless or groundless as is demonstrated by the fact they were dismissed pursuant to Rule 12(b)(6)," such reasoning does not automatically apply when a claim is terminated pursuant to Rule 56. Each case, of course, must be decided upon its own merits.
As to plaintiff's assertion in his complaint of alleged violations of his constitutional right of access to the courts while confined at the Cumberland County jail, plaintiff has no standing to raise such a claim because there is no reasonable likelihood that plaintiff, who is serving a life sentence, will ever be incarcerated in that jail again or subjected to the same alleged constitutional violations. City of Los Angeles v. Lyons, 461 U.S. 95, 103 S. Ct. 1660, 75 L. Ed. 2d 675 (1983); Buie v. Jones, 717 F.2d 925 (4th Cir.1983).
Finally, with regard to the order enjoining plaintiff from subpoenaing witnesses, the trial judge's action in entering the order, while understandable, exceeded his authority, and the order must be vacated.
We have carefully considered plaintiff's remaining assignments of error regarding alleged abuse of discretion by the trial judge, and find them to be without merit.
The order granting summary judgment in favor of defendants is affirmed. The injunction is vacated.
PHILLIPS and MARTIN, JJ., concur.