NICHOLSON v. ZIMMERMAN

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

JOSHUA NICHOLSON, )

)

Plaintiff, )

)

v. ) 1:19cv585

)

JULIE ZIMMERMAN, et al., )

)

Defendants. )

MEMORANDUM OPINION AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

This case comes before the Court on “Plaintiff’s Motion for

Default Judgment as to Worldwide Staffing Resources, Inc.” (Docket

Entry 64) (the “Motion”). For the reasons that follow, the Court

should deny the Motion.

PROCEDURAL BACKGROUND

Alleging violations of his constitutional and statutory rights

during his incarceration with the North Carolina Department of

Public Safety (the “NCDPS”) in the summer of 2016, Joshua Nicholson

(the “Plaintiff”) initiated a lawsuit against various defendants,

including Robin Caison (“Caison”) and Worldwide Staffing Resources,

Inc. (“Worldwide,” and collectively with Caison, the “Worldwide

Defendants”) (Docket Entry 1 (the “Complaint”), ¶¶ 6-7). (See

generally Docket Entry 1.) After certain defendants moved to

dismiss the Complaint, Plaintiff filed an amended complaint (see

Docket Entry 23) (the “Amended Complaint”), which largely

reiterated the Complaint’s allegations (compare Docket Entry 1,

with Docket Entry 23). Plaintiff thereafter filed an affidavit of

service, indicating that Plaintiff served Worldwide with the

Amended Complaint through the North Carolina Secretary of State.

(See Docket Entry 30 at 1-2.) Plaintiff subsequently moved for

entry of default against Worldwide (see Docket Entry 58), which the

Clerk granted (see Docket Entry 59). Plaintiff then dismissed

Caison from the lawsuit (see Docket Entry 63), and has now moved

for entry of default judgment against Worldwide (see Docket Entry

64). Specifically, Plaintiff seeks “a judgment on all of his

claims against Worldwide in the amount of $1,000,000.00, or in the

alternative, . . . a hearing to determine the measure of damages.”

(Id. at 1.)

DISCUSSION

I. Default Judgment Standards

As this Court (per Chief United States District Judge Thomas

D. Schroeder) recently explained:

A clerk’s entry of default does not entitle a party

to default judgment as a matter of right. Even where a

motion for default judgment is unopposed, the [C]ourt

must exercise sound judicial discretion to determine

whether default judgment should be entered.

Default is not considered an absolute confession by

the defendant of his liability and of the plaintiff’s

right to recover. Rather, a defaulted defendant is

considered to have admitted the factual allegations — but

not the conclusions of law — contained in the complaint.

Ultimately, the [C]ourt must determine whether the

well-pleaded allegations in [the plaintiff’s] complaint

support the relief sought in [the] action.

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In order to impose default judgment, the moving

party must first show that the defaulted party was

properly served. Second, the [C]ourt must evaluate the

complaint to ensure that it states a legitimate cause of

action. If the [C]ourt determines that liability is

established, the [C]ourt must then determine the

appropriate amount of damages. The [C]lourt does not

accept factual allegations regarding damages as true, but

rather must make an independent determination regarding

such allegations.

Superior Performers, Inc. v. Thornton, No. 1:20-cv-123, 2020 WL

6060978, at *4-5 (M.D.N.C. Oct. 14, 2020) (certain brackets in

original) (internal quotation marks and citations omitted).

Moreover, where “the well-pleaded factual allegations in [the

c]omplaint do not support the relief sought in this action,” the

Court “need not determine whether [the p]laintiff[] ha[s] met the

other requirements for entry of default judgment.” Victoria Select

Ins. Co. v. R&G Transp., No. 3:l6cv624, 2017 WL 5158684, at *4

(E.D. Va. Sept. 7, 2017). Instead, in that circumstance, the Court

“must dismiss the [claims against the pertinent defendant] for

failure to state a claim upon which relief can be granted.” Id.

II. Plaintiff’s Allegation

This action arises from Plaintiff’s alleged sexual assault by

his cellmate at “Mountain View” (Docket Entry 23, 97 22)' in August

2016. (See id., TI 13-39.) Asserting claims under 42 U.S.C.

§ 1983 (id. at 14), 42 U.S.C. § 1985 (id. at 15), and 42 U.S.C.

1 Presumably, Mountain View Correctional Institution. See

https://www.ncdps.gov/adult-corrections/prisons/prison-facilities

(last visited Feb. 22, 2021).

§ 12101 (id. at 17), Plaintiff sued Worldwide and its alleged

employee Caison; Maxim Healthcare Services, Inc. (“Maxim”) and its

alleged employee “Stacy Bowen” (“Bowen”); and various (known and

unknown) NCDPS employees. (Id., AI 2-10.) As relevant here, the

Amended Complaint alleges:

Plaintiff suffers from various mental issues and “present[s]

the same cognitive ability as an 8-year-old child” (id., @ 16).

(See, e.g., id., WII 14-16.) On June 14, 2016, Nurse Glover at

Piedmont Correctional Institution (“Piedmont”) performed a health

screening on Plaintiff, which identified the following issues:

“(a) history of inpatient mental health treatment (1-3 times),

(b) a current mental health complaint, (c) treatment for

depression, including antipsychotic prescription Risperdal, Valium

and Cogentin, (d) and a note from [his] mother stating [Plaintiff]

was schizophrenic.” (Id., 9 14.) On or about June 16, 2016, Julie

Zimmerman (“Zimmerman”), a defendant in this action (see id., 7 2),

conducted a mental health assessment on Plaintiff. (See id.,

7 15.) Zimmerman’s notes from this assessment reflect, inter alia,

that “[Plaintiff] reported that he had a psychiatric admission at

CaroMont in Gastonia shortly before his jail admission” (id.) and

“that [Plaintiff] required inpatient admission both times he had

previously been incarcerated, yet [Zimmerman ] inexplicably

recommended outpatient treatment for this incarceration term” (id.,

17). Between June 16, 2016, and June 21, 2016, Plaintiff took

two IQ tests, which returned scores of 63 and 67. (Id., 7 20.)

“Tt is believed that Mountain View had received Piedmont’s IQ test

results prior to [Plaintiff’s] transfer” to Mountain View (id.,

22), which apparently occurred on June 21, 2016 (see id., WII 19,

23.)

“On or about June 21, 2016,” Joseph Williams (“Williams”),

another defendant in this action (see id., @ 9), conducted an

outpatient examination (via telepsychiatry) on Plaintiff at

Piedmont, during which Williams, inter alia, “failfed] Lo

thoroughly discuss the inpatient treatments [Plaintiff] received.”

(Id., @ 19.) The final plan from this exam “[wa]ls for [Plaintiff]

to return in 6-8 weeks.” (Id.) Also “[o]n June 21, 2016, an

Intake health screen was conducted by Caison, who listed

‘outpatient only’ as the history of mental health treatment. She

stated that there was current mental health treatment but no mental

health complaint.” (Id., @{ 23.)°

The Amended Complaint then details various events on June 28,

2016 (id., 7 24), August 12, 2016 (id., 7 25), and August 15, 2016,

through August 22, 2016 (id., IT 26-39), none of which involve

Caison, Worldwide, or the Mountain View intake health screen (see

id., II 24-39). According to the Amended Complaint, Plaintiff’s

2 In the records for a “health screen” at Piedmont on June 6,

2016, “inpatient treatment was listed, but current mental health

treatment/complaint was marked ‘no,’ and there were no other mental

health notes at this appointment.” (lId., J 21.)

Mountain View cellmate “raped and assaulted” him around August 12,

2016. (Id., ¶ 25.)

Although the reference to Caison’s health intake screening

constitutes the only allegation regarding Caison or Worldwide in

its “Factual Allegations” section (id. at 5 (emphasis and all-cap

font omitted)), the Amended Complaint mentions Caison and/or

Worldwide in two additional sections. First, in the “Parties”

section (id. at 1 (emphasis and all-cap font omitted)), the Amended

Complaint states:

Defendant Worldwide Staffing Resources, Inc.

(“Worldwide”) contracted with NCDPS to perform essential

state functions with regard to the prison system and as

to [] Plaintiff, and at all relevant times, was

responsible for ensuring that [] Plaintiff was safe and

receiving adequate care and treatment in accordance with

applicable legal standards. The rights violations at

issue in this case were carried out by Worldwide final

policymakers, and established Worldwide policies and

practices were a driving force behind the rights

violations at issue in this case.

Defendant Robin Caison, sued in her individual and

official capacity, is a citizen and resident of the State

of North Carolina and was at relevant times acting in the

course and scope of her employment with Worldwide, and

under color of state law. Caison is sued in her

individual and official capacity.

(Id., ¶¶ 7-8 (internal paragraph numbering omitted).)

Second, in its “First Cause of Action” section outlining its

Section 1983 claim (id. at 14 (emphasis and all-cap font omitted)),

the Amended Complaint asserts: “As to Maxim and Worldwide, the

constitutional violations described herein involved execution of

the entities’ official policies and custom. These policies and

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customs were the moving force behind the constitutional violations.

[] Plaintiff specifically does not allege that Maxim and Worldwide

are liable merely via respondeat superior.” (Id., ¶ 54.)

In addition, in detailing its causes of action, the Amended

Complaint also lodges certain allegations against “Defendants.”

(See id., ¶¶ 49-77.) In particular, the Amended Complaint alleges:

“At the time of the incidents at issue, [] Plaintiff had

clearly established rights under the United States Constitution[]”

to, inter alia, “be free from cruel and unusual punishment,”

including “deliberate indifference to [either] a substantial risk

of serious harm” or his “medical needs.” (Id., ¶ 50.) “Defendants

violated these clearly established rights in the ways described in

summary form herein, and in ways that will be uncovered in

discovery and at trial.” (Id., ¶ 51.) “The unconstitutional

misconduct described herein was objectively unreasonable and was

undertaken intentionally, with malice and knowing disregard for

Plaintiff’s clearly established constitutional rights.” (Id.,

¶ 52.) “As a direct and proximate result of the above

constitutional violations, [] Plaintiff suffered serious physical

and emotional injury.” (Id., ¶ 53.)

“Defendants each had personal involvement in the wrongs

enumerated in this Complaint in which they are named, through

personal direction and/or actual knowledge and acquiescence as

described herein.” (Id., ¶ 56.) “All of the Defendants conspired

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with one another to deprive Plaintiff of his health, well-being and

peace of mind.” (Id., ¶ 57.)

According to the Amended Complaint:

[This] conspiracy included, but was not limited to:

a. Conspiracy to violate the Eighth and Fourteenth

Amendment Rights of Plaintiff in violation of the

Civil Rights Act, Title 42 U.S.C. § 1985;

b. Conspiracy to deprive Plaintiff of his physical,

mental, and emotional health;

c. Conspiracy to harm Plaintiff as indicated

earlier in this Complaint;

d. Conspiracy to cover-up the sexual abuse and

assaults of Plaintiff’s cellmate.

Upon information and belief, all of the Defendants

had various incentives to participate in the conspiracy.

For example, all of the Defendants and their employees

are incentivized to carry out medical visits as quickly

as possible. For the contractors and their employees,

the quicker the medical visits are carried out, the more

profitable for the contractors. For NCDPS and their

employees, there are specific metrics in place to gauge

how many medical visits and sick call requests and

grievances are closed out. There is no mechanism in

place within NCDPS for inmates to challenge the adequacy

of medical care provided, so the only incentive

[ D]efendants have is to complete medical appointments as

quickly as possible, and to close sick calls and

grievances as quickly as possible. Due to this and other

reasons, [] Defendants acted in concert to coverup [sic]

the assaults on [] Plaintiff.

The above acts were committed by all of the

Defendants, acting under the color of state law and

authority and violated clearly established statutory or

constitutional rights of Plaintiff of which a reasonable

person would have known.

(Id., ¶¶ 57-59 (internal paragraph numbering omitted); see also

id., ¶ 64 (“As a direct and proximate result of Defendants’

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conspiracy to harm and/or cover-up such harm and/or deliberate

indifference and/or failure to protect Plaintiff, [Plaintiff]

suffered severe and permanent emotional distress and mental anguish

together with a total deprivation of his rights guaranteed by the

Constitution of the United States of America.”).)

Finally, the Amended Complaint states:

“Defendants have discriminated against Plaintiff, by excluding

him from participation in, or denying him the benefits of,

programs, activities and services for which Plaintiff is qualified,

or for which he would be qualified with reasonable accommodation to

his disability,” in violation of Title II of the Americans with

Disabilities Act (the “ADA”). (Id., ¶ 69; see also id., ¶¶ 66, 68,

71.) “On information and belief, Defendants failed to provide

effective communication or provide comparable access to services,

benefits, activities, programs, or privileges, policies, regular

practices, and/or customs” (id., ¶ 73), in violation of certain ADA

regulations (see id., ¶¶ 71-72). Accordingly:

As a proximate result of Defendants’ violation of

Plaintiff’s rights under the ADA, Plaintiff has suffered

from discrimination, unequal treatment, exclusion

(including exclusion from Defendants’ services, benefits,

activities, programs, and privileges), violations of his

rights under the laws of the United States, loss of

dignity, frustration, humiliation, mental anguish,

depression, suicidal thoughts, emotional pain and

suffering, anxiety, trauma, embarrassment, and medical

expenses that have been incurred and will be incurred in

the future.

(Id., ¶ 74.)

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III. Analysis

Although Plaintiff’s Memorandum in Support of the Motion

contends that his allegations “support §1983, §1985, and [ADA]

claims against Worldwide” (Docket Entry 65 at 3), it does not

address his Section 1985 and ADA claims in arguing for entry of

default judgment (see id. at 3-4). In any event, the Amended

Complaint fails to state viable Section 1985 and ADA claims against

Worldwide, thereby precluding entry of default judgment on those

claims, see, e.g., Ryan v. Homecomings Fin. Network, 253 F.3d 778,

780–81 (4th Cir. 2001).

Pursuant to Section 1985,

[i]f two or more persons . . . conspire . . ., for

the purpose of depriving, either directly or indirectly,

any person or class of persons of the equal protection of

the laws, or of equal privileges and immunities under the

laws . . . whereby another is injured in his person or

property, or deprived of having and exercising any right

or privilege of a citizen of the United States, the party

so injured or deprived may have an action for the

recovery of damages occasioned by such injury or

deprivation, against any one or more of the conspirators.

42 U.S.C. § 1985(3). Furthermore:

The law is well settled that to establish a

sufficient cause of action for “conspiracy to deny equal

protection of the laws” under section 1985(3), a

plaintiff must prove: (1) a conspiracy of two or more

persons, (2) who are motivated by a specific class-based,

invidiously discriminatory animus to (3) deprive the

plaintiff of the equal enjoyment of rights secured by the

law to all, (4) and which results in injury to the

plaintiff as (5) a consequence of an overt act committed

by the defendants in connection with the conspiracy.

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Simmons v. Poe, 47 F.3d 1370, 1376 (4th Cir. 1995). Here, rather

than asserting “a specific class-based, invidiously discriminatory

animus,” id., the Amended Complaint alleges that financial

considerations motivated Worldwide Defendants’ actions (see Docket

Entry 23, ¶ 58 (“Defendants and their employees are incentivized to

carry out medical visits as quickly as possible. For the

contractors and their employees, the quicker the medical visits are

carried out, the more profitable for the contractors. . . . Due to

this and other reasons, [] Defendants acted in concert to coverup

[sic] the assaults on [] Plaintiff.”)). Accordingly, the Amended

Complaint’s allegations cannot sustain a Section 1985 claim against

Worldwide.

In turn, Title II provides that, “[s]ubject to the provisions

of [Subchapter II of the ADA], no qualified individual with a

disability shall, by reason of such disability, be excluded from

participation in or be denied the benefits of the services,

programs, or activities of a public entity, or be subjected to

discrimination by any such entity.” 42 U.S.C. § 12132 (emphasis

added). As relevant here, the ADA defines “public entity” as “any

State or local government,” or “any department, agency, special

purpose district, or other instrumentality of a State or States or

local government.” 42 U.S.C. § 12131(1)(A)-(B) (internal quotation

marks omitted). “By its plain language, this definition ‘does not

include private individuals or private entities,’” Wright v.

11

Carroll Cty. Bd. of Educ., No. 1licv3103, 2013 WL 4525309, at *19

(D. Md. Aug. 26, 2013) (collecting cases), such as Worldwide

Defendants (see Docket Entry 23, FTI 7-8). See, e.g., City & Cty.

of S.F. v. Sheehan, 575 U.S. 600, _, 135 S. Ct. 1765, 1773 (2015)

(“Only public entities are subject to Title II... .”); Smith v.

Glanz, 662 F. App’x 595, 597 (10th Cir. 2016) (explaining that

“only public entities, and not individual public employees, .. .

may be held liable under the ADA” and that “no individual .. . may

be held liable under Title II of the ADA”). The fact that, per the

Amended Complaint, Worldwide “contracted with NCDPS to perform

essential state functions with regard to the prison system and as

to [] Plaintiff” (Docket Entry 23, 9 7), does not change this

reality. See, e.g., Edison v. Douberly, 604 F.3d 1307, 1310 (11th

Cir. 2010) (“A private contractor does not . . . become liable

under Title II [of the ADA] merely by contracting with the State to

provide governmental services, essential or otherwise.”); Wright,

2013 WL 4525309, at *19-20 (finding Title II inapplicable to

actions of private parties and collecting cases). Accordingly,

Plaintiff’s Title II claim against Worldwide fails as a matter of

law.

The Amended Complaint’s “well-pleaded allegations of fact,”

Ryan, 253 F.3d at 780 (internal quotation marks omitted), likewise

fail to state a viable Section 1983 claim against Worldwide. In

that regard, the Memorandum in Support of the Motion asserts that

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Worldwide violated Plaintiff’s clearly established Eighth

and Fourteenth Amendment rights to be free from cruel and

unusual punishment; to be free from deliberate

indifference to a substantial risk of serious harm; to be

free from state created danger; to bodily integrity; and

to adequate medical care and to be free from deliberate

indifference to medical needs.

(Docket Entry 65 at 4 (citing Docket Entry 23, ¶ 50).)

“It is undisputed that the treatment a prisoner receives in

prison and the conditions under which he is confined are subject to

scrutiny under the Eighth Amendment.” Helling v. McKinney, 509

U.S. 25, 31 (1993). However, “a prison official cannot be found

liable under the Eighth Amendment for denying an inmate humane

conditions of confinement unless the official knows of and

disregards an excessive risk to inmate health or safety; the

official must both be aware of facts from which the inference could

be drawn that a substantial risk of serious harm exists, and he

must also draw the inference.” Farmer v. Brennan, 511 U.S. 825,

837 (1994).

As such,

[a]n inmate’s Eighth Amendment claim involves a

subjective component and an objective component.

“Specifically, Eighth Amendment analysis necessitates

inquiry as to whether the prison official acted with a

sufficiently culpable state of mind (subjective

component) and whether the deprivation suffered or injury

inflicted on the inmate was sufficiently serious

(objective component).” These requirements spring from

the text of the amendment itself; absent intentionality,

a condition imposed on an inmate cannot properly be

13

called “punishment,” and absent severity, such punishment

cannot be called “cruel and unusual.”

Iko v. Shreve, 535 F.3d 225, 238 (4th Cir. 2008) (citation

omitted).

Thus, “[t]he question under the Eighth Amendment is whether

prison officials, acting with deliberate indifference, exposed a

prisoner to a sufficiently substantial ‘risk of serious damage to

his future health.’” Farmer, 511 U.S. at 843. “To prove

deliberate indifference, plaintiffs must show that ‘the official

kn[ew] of and disregard[ed] an excessive risk to inmate health or

safety.’” Scinto v. Stansberry, 841 F.3d 219, 225 (4th Cir. 2016)

(brackets in original) (quoting Farmer, 511 U.S. at 837); see also

id. (“Put differently, the plaintiff must show that the official

was ‘aware of facts from which the inference could be drawn that a

substantial risk of serious harm exist[ed], and . . . dr[ew] th[at]

inference.’” (brackets, emphasis, and ellipsis in original)). In

the medical context, these elements of an eighth-amendment claim

require a plaintiff to establish that the defendants “acted with

‘deliberate indifference’ (subjective) to [his] ‘serious medical

needs’ (objective).” Iko, 535 F.3d at 241.3 A defendant displays

deliberate indifference where he possesses “actual knowledge of the

risk of harm to [an] inmate” and “also . . . recognize[s] that his

3 A medical need qualifies as serious if it “has been

diagnosed by a physician as mandating treatment or . . . is so

obvious that even a lay person would easily recognize the necessity

for a doctor’s attention.” Id. (internal quotation marks omitted).

14

actions [a]re insufficient to mitigate the risk of harm to the

inmate arising from his medical needs.” Id. (emphasis in original)

(internal quotation marks omitted).

“[D]eliberate indifference entails something more than mere

negligence, . . . [but] is satisfied by something less than acts or

omissions for the very purpose of causing harm or with knowledge

that harm will result.” Farmer, 511 U.S. at 835. “It requires

that a [defendant] actually know of and disregard an objectively

serious condition, medical need, or risk of harm.” De’lonta v.

Johnson, 708 F.3d 520, 525 (4th Cir. 2013) (internal quotation

marks omitted). A plaintiff can satisfy this standard by showing

“that a [defendant] knew of a substantial risk from the very fact

that the risk was obvious.” Scinto, 841 F.3d at 226 (internal

quotation marks omitted).

A plaintiff can also establish “a prima facie case of

deliberate indifference” where “‘a substantial risk of [serious

harm] was longstanding, pervasive, well-documented, or expressly

noted by prison officials in the past, and the circumstances

suggest that the defendant-official . . . had been exposed to

information concerning the risk and thus must have known about

it.’” Id. (brackets and ellipsis in original) (quoting Parrish ex

rel. Lee v. Cleveland, 372 F.3d 294, 303 (4th Cir. 2004)). In

addition, “‘[f]ailure to respond to an inmate’s known medical needs

15

raises an inference [of] deliberate indifference to those needs.’”

Id. (brackets in original).

Here, the only allegation in the Amended Complaint specific to

Worldwide Defendants and their interactions with Plaintiff states,

in full: “On June 21, 2016, an Intake health screen was conducted

by Caison, who listed ‘outpatient only’ as the history of mental

health treatment. She stated that there was current mental health

treatment but no mental health complaint.” (Docket Entry 23,

¶ 23.) This allegation fails to establish that Caison “knew of and

disregarded an[y] excessive risk to [Plaintiff’s] health or

safety,” Scinto, 841 F.3d at 225 (internal quotation marks and

brackets omitted), let alone a risk that Plaintiff would be

“brutally sexually assaulted” (Docket Entry 65 at 1) several weeks

later (see Docket Entry 23, ¶¶ 23-39). Thus, the Amended Complaint

fails to allege a plausible Section 1983 claim against Caison.

Further, notwithstanding the assertion that it “does not allege

that . . . Worldwide [is] liable merely via respondeat superior”

(id., ¶ 54), the Amended Complaint contains no independent

allegations of wrongful conduct by Worldwide regarding Plaintiff;

instead, any claim against Worldwide rests on Caison’s conduct.

(See generally Docket Entry 23.) Thus, because the Amended

Complaint fails to state a Section 1983 claim against Caison, it

likewise fails to state a Section 1983 claim against Worldwide.

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In sum, “Plaintiff[’s Amended] Complaint does not contain

sufficient factual matter to state a claim for the relief

Plaintiff[] request[s].” Victoria Select, 2017 WL 5158684, at *5.

The Court should therefore deny the Motion. See id.;

accord Superior Performers, 2020 WL 6060978, at *7. Moreover,

because Plaintiff fails to allege viable claims against Worldwide,

the Court should dismiss Worldwide from this action. See Victoria

Select, 2017 WL 5158684, at *5; see also Eriline Co. S.A. v.

Johnson, 440 F.3d 648, 655 n.10 (4th Cir. 2006) (“Where the face of

a complaint plainly fails to state a claim for relief, a district

court has no discretion but to dismiss it.” (internal quotation

marks omitted)).

CONCLUSION

The Amended Complaint does not state Section 1983, Section

1985, or ADA claims against Worldwide.

IT IS THEREFORE RECOMMENDED that the Motion (Docket Entry 64)

be denied and Plaintiff’s claims against Worldwide be dismissed

without prejudice.

This 22°7 day of February, 2021.

/s/_L. Patrick Auld

L. Patrick Auld

United States Magistrate Judge

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