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 “Defendants Stacy Bowen

and Maxim Healthcare Services, Inc.’s Amended Motion to Dismiss”

(Docket Entry 32) (the “Motion”). For the reasons that follow, the

Court should grant the Motion as specified herein.

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 Stacy Bowen (“Bowen”) and Maxim Healthcare Services, Inc.

(“Maxim,” and collectively, the “Maxim Defendants”) (Docket Entry

1 (the “Complaint”), ¶¶ 4-5). (See generally Docket Entry 1.)

Maxim Defendants moved to dismiss the Complaint pursuant to Rule

12(b)(6) of the Federal Rules of Civil Procedure (the “Rules”) (see

Docket Entry 16), contending that “[d]ismissal is appropriate

because, based solely upon the allegations of the Complaint, or

rather lack thereof, Plaintiff has failed to state a claim upon

which relief can be granted” (Docket Entry 17 at 1).1 In response,

Plaintiff filed an amended complaint (see Docket Entry 23) (the

“Amended Complaint”), which Maxim Defendants also moved to dismiss

under Rule 12(b)(6) (see Docket Entry 32 at 1). As relevant here,

the Amended Complaint alleges:

On or around June 6, 2016, a state-court judge sentenced

Plaintiff for various state crimes, “recommend[ing as part of the

sentence] substance abuse treatment, a mental health evaluation,

and compliance with any treatment recommendations.” (Docket Entry

23, ¶ 13.) Thereafter, “[Plaintiff] was transferred to Piedmont

Correctional Institution (‘Piedmont’),” at which time “Nurse

Glover” apparently performed a health screening that identified

“(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 the mother stating [Plaintiff]

was schizophrenic.” (Id., ¶ 14.) “Nurse Glover listed the mental

health complaint as a potential item for follow up” and “scheduled

a mental health referral request for [Plaintiff] to see a

psychologist due to the schizophrenia diagnosis.” (Id.)

1 Citations herein to Docket Entry pages utilize the CM/ECF

footer’s pagination.

2

Two days later, on June 16, 2016, Julie Zimmerman

(“Zimmerman”), a defendant in this litigation (id., ¶ 2), conducted

“a mental health assessment on [Plaintiff],” which “discussed his

mental health history which included Brief Psychotic Disorder,

Schizophrenia, Mood Disorder, and importantly, [Plaintiff’s]

report[] that he had a psychiatric admission at CaroMont in

Gastonia shortly before his jail admission and that he was hearing

voices.” (Id., ¶ 15.) Zimmerman further noted that Plaintiff

possessed “an IQ of 72 and a learning disability,” which she stated

“placed him in the ‘borderline range of intellectual functioning.’”

(Id., ¶ 16.) “A Beta IQ of 72 put Zimmerman on notice that

[Plaintiff] had a severe learning disability and borderline

retardation, and presented the same cognitive ability as an

8-year-old child.” (Id.)

“Despite having this information and patient history, it is

clear from Zimmerman’s notes in the ‘Interview,’ ‘Assessment,’ and

‘Plan’ portions of the assessment that she largely ignored

[Plaintiff’s] history and test scores, and instead recommended him

to be integrated into the regular population of the prison” (id.),

notwithstanding both her acknowledgment that “[Plaintiff] required

inpatient admission both times he had previously been incarcerated”

and Plaintiff’s specific request “to again go to Central Prison

(‘CP’) inpatient in Raleigh” (id., ¶ 17). Zimmerman indicated

“that her goal was for [Plaintiff] to ‘maintain a stable mental

3

status as evidenced by requiring no inpatient admissions.’” (Id.)

In making such plan, Zimmerman failed to “follow the NCCHC

guidelines for Mental Health Screening and Evaluation.” (Id.,

¶ 18.)2 Nevertheless, as per NCDPS protocol, “it is believed that

Zimmerman . . . arrang[ed two] IQ tests for [Plaintiff] since his

prior IQ test was more than 5 years old.” (Id., ¶ 20.) These

tests, conducted on June 17, 2016, and June 20, 2016, returned

scores of 63 and 67, respectively, “plac[ing] Mountain View on

notice that [Plaintiff] required significant [Americans with

Disabilities Act (the “ADA”)] accommodation and inpatient care.”

(Id.)

“On or about June 21, 2016, [Plaintiff] was ‘seen’ at

[Piedmont’s] outpatient program by [another defendant,] Joseph

Williams, MD [(‘Williams’)] (via telepsychiatry). In the exam,

Williams does not mention [Plaintiff’s] IQ or educational

background, he downplays the psychotic episodes, and he fails to

thoroughly discuss the inpatient treatments [Plaintiff] received.”

(Id., ¶ 19.) Williams’s “final ‘Plan’ [wa]s for [Plaintiff] to

return in 6-8 weeks.” (Id.) A couple hours later, “Zimmerman made

an administrative note regarding [Plaintiff’s] old NCDPS chart,”

which includes “a detailed accounting of [Plaintiff’s] psychotic

behavior with a final sentence that reads, ‘I do not believe he has

2 The Amended Complaint does not further identify “NCCHC” or

its Mental Health Screening and Evaluation guidelines. (See

generally Docket Entry 23.)

4

the mental capacity to effectively fake a mental illness.’ Despite

this fact, no action was taken.” (Id., 7 21.)

Apparently also on June 21, 2016, Plaintiff transferred to

“Mountain View” (id., @ 22), where “an Intake health screen was

conducted by [another defendant named Robin] 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.)° “It is believed that Mountain

View had received Piedmont’s IQ test results prior to [Plaintiff’s]

transfer.” (Id., 7 22.) “On June 28, 2016, [Plaintiff] did not

respond to internal stimuli and repeatedly asked the same question

to the social worker, Jennifer Johnson[ (‘Johnson’), another

defendant in this litigation]. Despite his abnormal behavior,

Johnson did not mark any concerns for [Plaintiff].” (Id., 7 24.)

Johnson also saw Plaintiff “on Friday, August 12, 2016, this

time for crisis intervention relating to reported problems with his

roommate, and [Plaintiff] requested to be put in a room by himself.

[Plaintiff] presented with marks on his face and could not look

Johnson in the eye while talking to her.” (Id., 9 25.) “Based on

Johnson’s notes, Johnson was not concerned about [Plaintiff’s]

safety and no changes were reported regarding the roommate

3 In this regard, a health screen at Piedmont “on or about

June 6, 2016,” listed “inpatient treatment,” but “marked ‘no’” for

“current mental health treatment/complaint.” (Id., @ 21; but

see id., @ 14 (alleging that Plaintiff transferred to Piedmont

“fo]n or about June 14, 2016”).)

situation. It is believed [Plaintiff] was raped and assaulted on

and before this date.” (Id.)

The following Monday, August 15, 2016, Johnson treated

Plaintiff “due to ‘vague threats of harm to himself and/or others.’

Johnson noted that [Plaintiff] contracted for safety and she placed

him on Behavior Observations overnight. He was to be re-evaluated

the next morning. The records provided to Plaintiff’s counsel make

no reference to [Plaintiff’s] roommate situation at this time.”

(Id., ¶ 26.) Next:

Almost an hour later, on Monday, August 15, 2016,

[Plaintiff] was treated by Stacy Bowen, RN, for an injury

to his arm. The injury to [Plaintiff’s] arm was

consistent with some of the notes provided in Blue Ridge

Hospital’s records concerning [Plaintiff] being sexually

assaulted, yet Bowen treated it as a minor injury with no

mention of sexual assault. This, in addition to other

information received by Bowen, allowed Bowen to draw the

inference that a sexual assault had occurred, and

Bowen[,] upon information and belief, drew such an

inference. Upon information and belief, Bowen also knew

or should have known that [] Plaintiff had suffered a

bruised backside. Bowen ignored various glaring signs

that [] Plaintiff had been, and was at further risk of

being, a victim of sexual assault. Bowen detected and

ignored [] Plaintiff’s injury, and ignored [] Plaintiff’s

attempts to provide additional detail beyond the obvious

physical signs of injury. Bowen was otherwise

deliberately indifferent to the obvious continued risk of

harm to [] Plaintiff in these and other ways.

(Id., ¶ 27.)

At 9:30 the next morning, Tuesday, August 16, 2016, Johnson

evaluated Plaintiff. (Id., ¶ 28.) The records from this

evaluation reveal “that [Plaintiff] was scared for his safety and

that he was unable to follow basic questions or instructions.”

6

(Id.) The records further reflect Plaintiff’s recent IQ scores of

63 and 67. (Id.) “NCDPS procedure and policy manual” requires,

for “any IQ score below 70[,] . . . an immediate referral to

Behavioral Health Services,” as well as immediate contact with “a

qualified Behavioral Health professional” to “conduct a more

in-depth mental health assessment.” (Id.) “However, neither

Zimmerman, Williams, nor Johnson followed these guidelines, and

instead Johnson just made a note to follow up in 24 hours.” (Id.)

Consistent with that note, around 9:30 a.m. on Wednesday,

August 17, 2016,4 another NCDPS employee identified only as

“‘Dalton’” conducted “a developmental disability assessment” of

Plaintiff. (Id., ¶ 29.) This assessment reflected certain

deficiencies, including in Plaintiff’s “capacity for independent

living,” such that “Dalton found that [Plaintiff] was classified as

a mental health 3 status developmentally disabled inmate, and was

added to the DD Caseload.” (Id.) Dalton’s assessment further

reflects that “‘Treatment goals are being established today with a

focus on encouraging [Plaintiff] to make decisions to protect his

self-interests, request assistance when needed, and protect himself

from exploitation or personal harm by others.’” (Id., ¶ 30.)

“Dalton further stated that ‘[Plaintiff] is being encouraged to

notify staff if there are any incidents of other inmates attempting

4 Per the Amended Complaint, “[o]n Wednesday, August 17,

2016, a very strange and alarming series of events unfolded that

cannot be explained by the records.” (Id., ¶ 29.)

7

to exploit or take advantage of him. [Plaintiff] has remained

infraction-free thus far since his admission to prison.’” (Id.)

At 2:10 p.m. and 2:31 p.m. that same day, Dalton added “the

Case Manager Orientation and DC-927 Evaluation Form” to Plaintiff’s

records. (Id., ¶ 31.) “Less than 30 minutes later, there was an

urgent request by Sarah Condrey to transport [Plaintiff] to Blue

Ridge Regional Hospital for an alleged sexual assault. The only

other record from Mountain View is dated August 18, 2016.” (Id.)

As to what followed:

The Blue Ridge Regional Hospital Emergency Room

record states, in relevant part, that “[Plaintiff] is a

27 year old male with a significant past medical history

of schizophrenia who initially reported to the Mountain

View correctional nursing staff complaining of suicidal

ideations. After observing him for some time patient

then began to state that someone had ‘messed with him.’

It is difficult to know exactly what transpired but at

some point he was released back to his [cell] over the

last several days. He presented again today complaining

of pain stating that someone “messed with him.”

“[N]ursing staff became concerned and so they requested

that he come to the ER for evaluation because they felt

that he had been sexually assaulted by his cellmate.”

There is no mention of someone “messing with him” in

Mountain View records. Mountain View records make no

mention of the nursing staff being concerned about

[Plaintiff] or his safety. [Plaintiff] was released back

into his cell after the nursing staff was made aware of

[Plaintiff’s] condition.

The Blue Ridge Regional Hospital Emergency Room

record further states that “During this time, Mountain

View correctional called back to state that there was

recent blood in his cough as well as several

‘instruments’ [that] did have blood on them as well and

prison staff was treating the cell as a crime scene.

They freely admit that he does not have the ability to

give a good history therefore the [sic] requested further

workup. During my interview, patient is extremely

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guarded but does state that someone hurt him but won’t

quite say how. He did admit to having some blood coming

out of his rectum with direct questioning but would not

bring this out without questioning.” There is no record

from Mountain View of this phone call to Blue Ridge.

There is no medical record from Mountain View in regard

to blood in [Plaintiff’s] cough or on several

“instruments.” There is no record from Mountain View in

regard to [Plaintiff’s] cell being treated as a crime

scene. There is no record from Mountain View in regard

to [Plaintiff’s] cellmate raping him. Further down in

the Blue Ridge medical record, Dr. Cornelius states that

[Plaintiff] cannot even provide his own date of birth.

After being treated at Blue Ridge, [Plaintiff] was

transferred to Mission Hospital at approximately 7:00 pm

on Wednesday, August 17, 2016. The emergency room report

from Mission, in relevant part, states that “I spoke with

Ms. Buchanan at the facility and also with the officers

at the bedside as well as the patient.” “On Monday the

patient may [sic] reports of possible self-harm and [was]

placed in an area where he had mental health and

‘restricted housing.’” “Ms. Buchanan said that they

found bruises on his backside as well as his arms and she

got involved with further investigation and went to the

patient’s cell.” “When Ms. Buchanan flipped over the

mattress, she found that the underside mattress cover had

blood on it about the size of a dinner plate. She also

found a wash rag was hanging on the puncture [sic] dry

that she said may have had blood on it that was washed

out. She states that the psychologist spoke with the

patient and the patient did admit to being victimized and

assaulted.” The records reflect that [Plaintiff] is

developmentally delayed and has the functional status of

an 8-year-old. The records further reflect that Ms.

Buchanan “did tell me the patient was found [sic] have a

black eye on Friday evening that was not there earlier

that day.”

Plaintiff’s counsel was not provided any records

showing that a Ms. Buchanan worked at Mountain View, nor

was counsel provided any records with her notes.

Mountain View provided two medical records from August

15, 2016, . . . but neither of those records indicated

sexual assault. Mountain View assured counsel for

Plaintiff that it provided all its records concerning

[Plaintiff]. Mountain View has no records describing the

bruising on [Plaintiff’s] body, Buchanan’s investigation,

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flipping over a mattress and finding blood the size of a

dinner plate, the bloody rag, a black eye, [Plaintiff’s]

roommate situation, or treating [Plaintiff’s] cell as a

crime scene. There is no record of a psychologist visit.

Mission Hospital records indicate that Buchanan examined

[Plaintiff] on Monday, August 15, 2016, yet Mountain View

did not send [Plaintiff] to the emergency room until two

days later, and interestingly, after Mountain View

examined [Plaintiff] for a developmental disability.

The emergency room report from Mission further

states that “Ms. Buchanan told me that the patient said

he was afraid to sleep at night because he was afraid

that they would kill him. Patient denies any rectal

bleeding. Review systems difficult to obtain from the

patient given his about [sic] mental delay.” Mountain

View records are devoid of any reference to a Ms.

Buchanan or [Plaintiff’s] concerns about someone trying

to kill him.

On Thursday, August 18, 2016, [Plaintiff] was

returned to Mountain View. He was seen by Keith D’Amico

for an injury. [Plaintiff] made repeated visits for

evaluation and crisis intervention on August 18, 2016.

He remained on Behavioral Observation.

On Friday, August 19, 2016, [Plaintiff] presented

again with an elevated risk of self-injury. He again

requested not to be put back in his cell. It is believed

that despite [Plaintiff] being raped and sexually

assaulted, Mountain View placed [Plaintiff] back in a

cell with a cellmate.

Check-ups continued until [Plaintiff] was

transferred to Pender [Correctional Institute] on or

about Monday, August 22, 2016. . . .

(Id., ¶¶ 32-39 (internal paragraph numbering omitted) (“[sic]”

notations and certain brackets in original).)

“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

10

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.) “As to Maxim and Worldwide,

the constitutional violations described herein involved execution

of the entities’ official policies and custom. These policies and

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, “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 [] Defendants

conspired with one another to deprive Plaintiff of his health,

well-being and peace of mind.” (Id., ¶ 57.) Moreover:

[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;

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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 [] Defendants

had various incentives to participate in the conspiracy.

For example, all of [] 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 []

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).) “As a

direct and proximate result of Defendants’ 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.” (Id., ¶ 64.)

12

Finally, “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. These acts and omissions violate

the rights of Plaintiff under [Title II of] the [ADA].” (Id.,

¶ 69; see also id., ¶¶ 66, 68, 71.) “Title II of the ADA states

that ‘no qualified individual with a disability shall, by reason of

such disability, be excluded from participation in or be denied the

benefits of services, programs, or activities of a public entity,

or be subjected to discrimination by any such entity.’” (Id.,

¶ 66.)

“The U.S. Department of Justice (‘DOJ’) regulation

implementing Title II of the ADA clearly requires the provision of

effective communication as part of its nondiscrimination mandate.”

(Id., ¶ 71.) “This regulation states: ‘A public entity shall take

appropriate steps to ensure that communications with applicants,

participants, and [sic] members of the public, and companions with

disabilities are as effective as communications with others.’”

(Id. (quoting 28 C.F.R. § 35.160(a)).) “In order to ensure

effective communication, the ADA requires that ‘a public entity’

furnish ‘appropriate auxiliary aids and services where necessary to

afford individuals with disabilities . . . an equal opportunity to

participate in, and enjoy the benefits of, a service, program, or

13

activity conducted by [sic] a public entity.’” (Id., QF 72

(ellipsis in original) (quoting 28 C.F.R. § 160(b)(1)).)

“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.) 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., 7 74.)

As noted, Maxim Defendants moved to dismiss the Amended

Complaint for failure to state a claim under Rule 12(b) (6) (see

Docket Entry 32), a request Plaintiff opposes, at least as to

Plaintiff’s 42 U.S.C. § 1983 claims (see Docket Entry 50) (the

“Opposition”).

DISCUSSION

I. Motion to Dismiss Standards

In reviewing a Rule 12(b) (6) motion, the Court must “accept

the facts alleged in the complaint as true and construe them in the

light most favorable to the plaintiff.” Coleman v. Maryland Ct. of

App., 626 F.3d 187, 189 (4th Cir. 2010), aff’d sub nom., Coleman v.

14

Court of App. of Md., 566 U.S. 30 (2012). The Court must also

“draw all reasonable inferences in favor of the plaintiff.” E.I.

du_Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 440

(4th Cir. 2011) (internal quotation marks omitted). It “dol[es]

not, however, accept as true a legal conclusion couched as a

factual allegation” nor does it “accept unwarranted inferences,

unreasonable conclusions, or arguments.” SD3, LLC v. Black &

Decker (U.S.) Inc., 801 F.3d 412, 422 (4th Cir. 2015), as amended

on _reh’g in part (Oct. 29, 2015) (internal quotation marks

omitted). It “can further put aside any naked assertions devoid of

further factual enhancement.” Id. (internal quotation marks

omitted).

To avoid Rule 12(b) (6) dismissal, a complaint must contain

sufficient factual allegations “to ‘state a claim to relief that is

plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

(2007)). To qualify as plausible, a claim needs sufficient factual

content to support a reasonable inference of the defendant’s

liability for the alleged misconduct. Id. “Where a complaint

pleads facts that are merely consistent with a defendant’s

liability, it stops short of the line between possibility and

plausibility of entitlement to relief.” Id. (internal quotation

marks omitted). This standard “demands more than an unadorned,

the-defendant-unlawfully-harmed-me accusation.” Id. In other

15

words, “the tenet that a court must accept as true all of the

allegations contained in a complaint is inapplicable to legal

conclusions. Threadbare recitals of the elements of a cause of

action, supported by mere conclusory statements, do not suffice.”

Id. Moreover, “where the well-pleaded facts do not permit the

court to infer more than the mere possibility of misconduct, the

complaint” cannot “survive a Rule 12(b)(6) motion.” Francis v.

Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009). “At bottom,

determining whether a complaint states . . . a plausible claim for

relief . . . will ‘be a context-specific task that requires the

reviewing court to draw on its judicial experience and common

sense.’” Id. (quoting Iqbal, 556 U.S. at 679).

II. Preliminary Matters

As an initial matter, the Opposition contends that, because

Maxim Defendants filed the Motion late, they “lack standing to

pursue the [M]otion and they have waived the defenses asserted in

the [M]otion” (Docket Entry 50 at 3). (See id. at 3-6.) However,

after Plaintiff filed his Opposition, he consented to Maxim

Defendants’ then-pending motion for extension of time to file the

Motion (Docket Entry 36). (See Docket Entry 54 at 2.) The Court

therefore granted the extension motion and “accept[ed the Motion]

as if timely filed.” (Text Order dated Oct. 15, 2019.)

Accordingly, Plaintiff’s timeliness-related contentions lack merit.

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In addition, although Plaintiff generically alleges that

“Defendants” violated his rights under Section 1983, Section 1985,

and the ADA, ambiguity exists regarding whether Plaintiff intended

to pursue claims under Section 1985 and the ADA against Maxim

Defendants given the Amended Complaint’s utter lack of any

individualized factual allegations that would support such claims.

(See generally Docket Entry 23.) Nevertheless, Maxim Defendants

moved to dismiss all potential claims, asserting, inter alia, that

“[n]one of the [required] elements for a § 1985(3) conspiracy claim

are alleged with any particularity in the Amended Complaint as to

the Maxim Defendants” (Docket Entry 33 at 15), as well as that

“Plaintiff has alleged a non-discriminatory and generalized

financial incentive system that Plaintiff believes to be perverse

— but that is not a cognizable conspiracy under § 1985” (id. at

16). They further contended that Plaintiff’s ADA claim fails

against Maxim Defendants because, inter alia, they are not public

entities, as Title II requires. (See id. at 17.)

Notwithstanding Maxim Defendants’ Section 1985 and ADA

contentions, the Opposition addresses only Maxim Defendants’

Section 1983 arguments. (See, e.g., Docket Entry 50 at 8 (“Here,

Maxim [Defendants] are subject to a 1983 claim, and it would be a

travesty if the actions of [Maxim Defendants] as alleged in the

[Amended] Complaint do not amount to at least a jury question of

deliberate indifference to [Plaintiff’s] safety and serious medical

17

needs.”); see generally Docket Entry 50 (focusing solely on Section

1983 claim).) As such, Plaintiff effectively concedes that any

Section 1985 and ADA claims against Maxim Defendants fail. See,

e.g., Kinetic Concepts, Inc. v. Convatec Inc., No. 1:08cv918, 2010

WL 1667285, at *6-9 (M.D.N.C. Apr. 23, 2010) (finding that “[the

d]efendants conceded the [disputed] issue by failing to respond to

it at the appropriate time,” and noting that, under both this

Court’s Local Rules and as a “general principle,” a litigant “who

fails to address an issue . . . concede[s] the issue”) (collecting

cases). For this reason alone, the Court should grant Maxim

Defendants’ request to dismiss any Section 1985 and ADA claims

against them.

Moreover, any Section 1985 and ADA claims against Maxim

Defendants do not withstand Rule 12(b)(6) scrutiny. 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,

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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.

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 Maxim Defendants’ actions (see Docket

Entry 23, ¶ 58 (“[A]ll of [] 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 fails to plausibly allege a Section 1985

claim against Maxim Defendants.

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

19

local government.” 42 U.S.C. § 12131(1)(A)-(B). “By its plain

language, this definition ‘does not include private individuals or

private entities,’” Wright v. Carroll Cty. Bd. of Educ., No.

11cv3103, 2013 WL 4525309, at *19 (D. Md. Aug. 26, 2013)

(collecting cases), such as Maxim Defendants (see Docket Entry 23,

¶¶ 4-6). See, e.g., City & Cty. of San Francisco 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,

Maxim “contracted with NCDPS to perform essential state functions

with regard to the prison system and as to [] Plaintiff” (Docket

Entry 23, ¶ 4), 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, any Title II claim against

Maxim Defendants fails as a matter of law.5

5 In any event, the Amended Complaint does not plausibly

allege that Maxim Defendants discriminated against Plaintiff either

(continued...)

20

Finally, the Motion asks the Court to award Maxim Defendants

“attorneys’ fees and costs, in accordance with 42 U.S.C. § 1988.”

(Docket Entry 32 at 2.) Section 1988 provides that, “[i]n any

action or proceeding to enforce a provision of [S]ection[ 1983 or

Section 1985] . . ., the [C]ourt, in its discretion, may allow the

prevailing party[] . . . a reasonable attorney’s fee as part of the

costs.” 42 U.S.C. § 1988(b). However, Maxim Defendants fail to

develop this request in either their memorandum in support of the

Motion or their reply. (See Docket Entries 33, 51.) Under such

circumstances, the Court should decline to award attorney’s fees.

III. Section 1983 Claim

Finally, Plaintiff contends that Maxim Defendants violated his

eighth-amendment rights. (See Docket Entry 23, ¶¶ 49-50.) In

particular, Plaintiff asserts that Maxim Defendants violated his

rights “[t]o be free from deliberate indifference to a substantial

risk of serious harm” and to receive “adequate medical care and to

be free from deliberate indifference to medical needs.” (Id.,

5(...continued)

deliberately or with deliberate indifference (see generally Docket

Entry 23), as required for a compensatory damages claim under Title

II. See, e.g., Bone v. University of N.C. Health Care Sys., No.

1:18cv994, 2019 WL 4393531, at *17 (M.D.N.C. Sept. 13, 2019)

(explaining that, under Title II, “compensatory damages are

available only upon proof of intentional discrimination or

disparate treatment, rather than mere disparate impact,” which

obliges “a plaintiff [to] show that the defendant knew that harm to

a federally protected right was substantially likely and failed to

act on that likelihood” (internal quotation marks omitted)), report

and recommendation adopted, No. 1:18cv994, 2020 WL 1062421

(M.D.N.C. Mar. 5, 2020).

21

¶ 50; see also Docket Entry 50 at 8 (“[I]t would be a travesty if

the actions of Bowen and Maxim as alleged in the Complaint do not

amount to at least a jury question of deliberate indifference to

[Plaintiff’s] safety and serious medical needs.”).) In response,

Maxim Defendants argue that the Amended Complaint fails to

plausibly allege their violation of Plaintiff’s constitutional

rights. (See, e.g., Docket Entry 33 at 10 (“[N]owhere in the

Amended Complaint is there a factual assertion of any specificity

with regard to how Nurse Bowen’s conduct was either deliberately

indifferent or that it caused Plaintiff’s asserted constitutional

deprivations.”).) Conversely, “Plaintiff contends that the acts of

Bowen and Maxim establish reckless indifference as a matter of law

based on the medical evidence thus far presented, which has been

incorporated in the First Amended Complaint.” (Docket Entry 50 at

8.) Plaintiff’s contentions lack merit.

A. Deliberate Indifference Standards

“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

22

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

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

23

the medical context, this requires a plaintiff to establish that

the defendants “acted with ‘deliberate indifference’ (subjective)

to [his] ‘serious medical needs’ (objective).” Iko, 535 F.3d at

241.6 A defendant displays deliberate indifference where he

possesses “actual knowledge of the risk of harm to [an] inmate” and

“also . . . recognize[s] that his 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).

6 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).

24

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

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

Id. (brackets in original).

B. Analysis

The only allegations in the Amended Complaint specific to

Maxim Defendants and their interactions with Plaintiff state, in

full:

Almost an hour [after Johnson evaluated Plaintiff,

“plac[ing] him on Behavior Observations overnight”

(Docket Entry 23, ¶ 26)], on Monday, August 15, 2016,

[Plaintiff] was treated by Stacy Bowen, RN, for an injury

to his arm. The injury to [Plaintiff’s] arm was

consistent with some of the notes provided in Blue Ridge

Hospital’s records concerning [Plaintiff] being sexually

assaulted, yet Bowen treated it as a minor injury with no

mention of sexual assault. This, in addition to other

information received by Bowen, allowed Bowen to draw the

inference that a sexual assault had occurred, and

Bowen[,] upon information and belief, drew such an

inference. Upon information and belief, Bowen also knew

or should have known that [] Plaintiff had suffered a

bruised backside. Bowen ignored various glaring signs

that [] Plaintiff had been, and was at further risk of

being, a victim of sexual assault. Bowen detected and

ignored [] Plaintiff’s injury, and ignored [] Plaintiff’s

25

attempts to provide additional detail beyond the obvious

physical signs of injury. Bowen was otherwise

deliberately indifferent to the obvious continued risk of

harm to [] Plaintiff in these and other ways.

(Id., 7 27.)

As Maxim Defendants maintain (see Docket Entry 33 at 9-11),

these allegations largely qualify as “naked assertions devoid of

further factual enhancement,” SD3, LLC, 801 F.3d at 422 (internal

quotation marks omitted), which the Court must “put aside,” id., in

analyzing a Rule 12(b) (6) motion. Stripped of “legal conclusion[s]

couched as . . . factual allegation[s],” id. (internal quotation

marks omitted), “unadorned, the-defendant-unlawfully-harmed-me

accusation[s],” Igbal, 556 U.S. at 678, and “mere conclusory

statements,” id., the Amended Complaint alleges little more than

that Bowen treated Plaintiff for an unspecified arm injury, which

“was consistent with some of the notes provided in Blue Ridge

Hospital’s records [from two days later] concerning [Plaintiff]

being sexually assaulted, yet Bowen treated it as a minor injury

with no mention of sexual assault” (Docket Entry 23, QI 27).

Notably, the Amended Complaint lacks any factual allegations

indicating how Plaintiff’s unspecified arm injury either “allowed

Bowen to draw the inference that a sexual assault had occurred” or

alerted Bowen to Plaintiff’s “bruised backside.” (Id.) Moreover,

even assuming Bowen somehow should have known — from Plaintiff’s

arm injury, developmental delay, earlier black eye and ™“‘vague

threats of harm to himself and/or others’” (id., I 26), and/or

26

“attempts to provide additional detail beyond the obvious physical

signs of injury” (id., @ 27) — that Plaintiff suffered a sexual

assault, nothing in the Amended Complaint indicates that Bowen did

in fact realize either that such assault had occurred or remained

likely to occur (see generally Docket Entry 23), as required for a

deliberate indifference claim, see, e.g., Farmer, 511 U.S. at 838

(explaining that “an official’s failure to alleviate a significant

risk that he should have perceived but did not, while no cause for

commendation, cannot under our cases be condemned as the infliction

of punishment”); Parrish, 372 F.3d at 303 (“It is not enough that

the officers should have recognized [a substantial risk of harm];

they actually must have perceived the risk.” (emphasis in

original)).’

Nevertheless, the Opposition urges the Court to deny the

Motion, asserting:

Here, Maxim and Bowen are subject to a 1983 claim,

and it would be a travesty if the actions of Bowen and

Maxim as alleged in the Complaint do not amount to at

least a jury question of deliberate indifference to

[Plaintiff’s] safety and serious medical needs.

[Plaintiff] was an adult with the cognitive ability of an

7 Even assuming that Buchanan’s investigation occurred on

August 15, 2016, nothing in the Amended Complaint indicates that

Bowen knew of such investigation or its results. (See, e.g.,

Docket Entry 23, 97 35 (alleging that neither medical record from

August 15, 2016, reflects sexual assault).) Accordingly, the

Amended Complaint does not establish that Maxim Defendants “had

been exposed to information concerning [a sexual assault] risk,”

Scinto, 841 F.3d at 226 (internal quotation marks omitted), or

otherwise “knew of [such] risk . . . [because it] was obvious,” id.

(internal quotation marks omitted).

27

8-year-old and suffered from borderline mental

retardation, yet the named Defendants placed him in a

prison cell with a violent, KKK member, and ignored

[Plaintiff’s] pleas for help. In fact, [] Plaintiff

contends that the acts of Bowen and Maxim establish

reckless indifference as a matter of law based on the

medical evidence thus far presented, which has been

incorporated in the First Amended Complaint.

(Docket Entry 50 at 8.) In Plaintiff’s view, “[t]he omissions and

commissions of Bowen and Maxim give rise to a claim to a cruel and

unusual punishment claim [sic] in violation of the Eighth

Amendment.” (Id. at 9.) These assertions miss the mark.

First, the Amended Complaint contains no allegations about the

character or history of Plaintiff’s cellmate, let alone that he

qualified as “a violent[] KKK member” (id. at 8). (See generally

Docket Entry 23.) Accordingly, the Court cannot consider this

description at the Rule 12(b)(6) stage. See, e.g., E.I. du Pont,

637 F.3d at 449 (explaining that “statements by counsel that raise

new facts constitute matters beyond the pleadings and cannot be

considered on a Rule 12(b)(6) motion”). Nor, if it were

considered, does that description of Plaintiff’s cellmate indicate

that such cellmate posed a danger of sexual assault. Moreover,

contrary to Plaintiff’s assertions, Bowen did not “place[

Plaintiff] in a prison cell with a violent, KKK member.” (Docket

Entry 50 at 8.) Rather, Bowen released Plaintiff back to “an area

where he had mental health and ‘restricted housing’” (Docket Entry

23, ¶ 34 (certain internal quotation marks omitted)) as part of the

28

overnight observation Johnson ordered approximately one hour prior

to Bowen and Plaintiff’s singular interaction (see id., ¶¶ 26-27).

In sum, the Amended Complaint fails to plausibly allege that

Bowen “knew of and disregarded an excessive risk to [Plaintiff’s]

health or safety.” Scinto, 841 F.3d at 225 (internal quotation

marks and brackets omitted). Thus, the Court should dismiss

Plaintiff’s Section 1983 claim against Bowen.8 Further,

notwithstanding the assertion that it “does not allege that Maxim

and Worldwide are liable merely via respondeat superior” (Docket

Entry 23, ¶ 54), the Amended Complaint contains no independent

allegations of wrongful conduct by Maxim regarding Plaintiff;

instead, any claim against Maxim rests on Bowen’s conduct. (See

generally Docket Entry 23.) Thus, because the Amended Complaint

fails to plausibly allege a Section 1983 claim against Bowen, it

likewise fails to plausibly allege one against Maxim. The Court

should therefore dismiss Plaintiff’s Section 1983 claims against

Maxim Defendants.

CONCLUSION

The Amended Complaint does not plausibly allege any Section

1983, Section 1985, or ADA claims against Maxim Defendants.

8 Given this resolution, the Court need not separately

analyze whether qualified immunity would shield Bowen from

Plaintiff’s claims. (Compare Docket Entry 33 at 2, 19-20 (urging

qualified immunity), with Docket Entry 50 at 9-13 (contesting

qualified immunity).)

29

However, Maxim Defendants did not justify an award of attorney’s

fees.

IT IS THEREFORE RECOMMENDED that the Motion (Docket Entry 32)

be granted insofar as Plaintiff’s claims against Maxim Defendants

be dismissed, with each side to bear its own attorney’s fees.

This 19th day of August, 2020.

/s/ L. Patrick Auld

L. Patrick Auld

United States Magistrate Judge

30