GUNTER v. SOUTHERN HEALTH PARTNERS, INC.

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

DAVID RAY GUNTER, )

)

Plaintiff, )

)

v. ) 1:16CV262

)

SOUTHERN HEALTH PARTNERS, INC., )

et al., )

Defendants. )

MEMORANDUM OPINION AND ORDER

OSTEEN, JR., District Judge

Presently before this court is a Motion for Summary

Judgment filed by Defendants Davie County, Andy Stokes, Cameron

Sloan, Stokes County, Mike Marshall, Eric Cone, Western Surety

Company, and Ohio Casualty Company (collectively, the “Public

Defendants”), (Doc. 125), to which Plaintiff has responded,

(Doc. 138), and Public Defendants have replied, (Doc. 141).

Further, Plaintiff has filed a Surreply to Public

Defendants’ Motion for Summary Judgment. (Doc. 149.) Public

Defendants have filed a Motion to Strike Plaintiff’s Surreply,

(Doc. 150), to which Plaintiff has responded, (Doc. 160), and

Public Defendants have replied, (Doc. 162).

Finally, Public Defendants have filed a Motion for

Expedited Ruling or, Alternatively, for Continuance of Trial or

Enlargement of Time in which to Complete Final Pretrial

Preparations. (Doc. 147.) Plaintiff did not file a reply. These

motions are ripe for adjudication.

For the reasons stated herein, this court will grant Public

Defendants’ Motion for Summary Judgment. (Doc. 125.) This court

will deny as moot Public Defendants’ Motion for Expedited

Ruling, (Doc. 147), and Motion to Strike, (Doc. 150).

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Parties

Plaintiff was incarcerated at the Davie County and Stokes

County jails over fourteen consecutive days in November 2012.

(Pub. Defs.’ Mem. of Law. in Supp. of Mot. for Summ. J. (“Pub.

Defs.’ Br.”) (Doc. 126) at 2.) Defendants Davie County and

Stokes County are political subdivisions of the State of North

Carolina. (Second Amended Complaint (“Second Am. Compl.”) (Doc.

57) ¶¶ 6, 10.) Defendant Andy Stokes is Sheriff of Davie County.

(Id. ¶ 8.) Defendant Sloan was appointed by Defendant Stokes to

be responsible for operations of the Davie County Local

Confinement Facility. (Id. ¶ 9.) Defendant Marshall is Sheriff

of Stokes County. (Id. ¶ 12.) Defendant Western Surety Company

is the surety for the Sheriff’s Bond required of Defendant

Stokes. (Id. ¶ 17.) Defendant Ohio Casualty Company is surety

for the Sheriff’s Bond required of Defendant Marshall. (Id.

¶ 16.)

B. Procedural History

Plaintiff filed his original Complaint in Randolph County

Superior Court of the State of North Carolina on November 25,

2015, and filed an Amended Complaint as of right on March 3,

2016. (Doc. 1-11; Doc. 26.) Public Defendants removed the case

to this court on April 1, 2016. (Doc. 1 at 1.) Public Defendants

answered Plaintiff’s Amended Complaint on April 8, 2016. (Doc.

33.) After obtaining leave from this court, (Doc. 56), Plaintiff

filed a Second Amended Complaint in this court on December 27,

2016, (Doc. 57). Public Defendants answered Plaintiff’s Second

Amended Complaint on January 5, 2017. (Doc. 59.) This court

dismissed the Davie County Board of Commissioners and the Stokes

County Board of Commissioners as defendants on March 22, 2017.

(Doc. 70.) On November 2, 2018, Plaintiff voluntarily dismissed

Wendell Sain, another defendant in this action. (Doc. 96.)

On July 6, 2020, Public Defendants filed the instant Motion

and Memorandum for Summary Judgment, (Docs. 125, 126). Plaintiff

filed a response on July 30, 2020, (Pl.’s Mem. of Law in Opp’n

to Mot. for Summ. J. (“Pl.’s Resp.”) (Doc. 138)), and Public

Defendants filed a Reply on August 5, 2020, (Reply of Pub.

Defendants in Supp. of Mot. for Summ. J. (“Pub. Defs.’ Reply”)

(Doc. 141)).

On August 18, 2020, Public Defendants filed a Motion for

Expedited Ruling or, Alternatively, for Continuance of Trial or

Enlargement of Time in which to Complete Final Pretrial

Preparations, (Doc. 147), and Memorandum, (Doc. 148). Plaintiff

took no position as to the motion but advised Public Defendants

and the court that Plaintiff intended to file a Surreply in

opposition to Public Defendants’ Motion for Summary Judgment.

(Doc. 147 at 2.)

On August 24, 2020, Plaintiff filed a Surreply to Public

Defendants’ Motion for Summary Judgment. (Surreply Br. to Pub.

Defs.’ Mot. for Summ. J. (“Pl.’s Surreply”) (Doc. 149).) Public

Defendants filed a Motion to Strike Plaintiff’s Surreply on

August 25, 2020, (Doc. 150), and a Memorandum of Law in Support

of the Motion to Strike, (“Pub. Defs.’ Mot. to Strike Br.”)

(Doc. 151)). Plaintiff responded on September 15, 2020, (Doc.

160; Pl.’s Br. in Opp’n to Mot. to Strike (“Pl.’s Resp. to Mot.

to Strike”) (Doc. 161)), and Public Defendants replied on

September 28, 2020, (Doc. 162).

On February 23, 2021, Public Defendants filed a Motion to

Continue Trial, (Doc. 165), to which Plaintiff responded in

opposition on March 1, 2021, (Doc. 168). On March 3, 2021, this

court denied Public Defendants’ motion as moot, as “[t]his court

anticipate[d] issuing its ruling on the pending summary judgment

motion[] in the near future.” (Doc. 170 at 1.) This court

ordered the parties to “stand down from the presently scheduled

trial preparation deadlines,” (id.), and ordered the Clerk to

set a scheduling and status conference in this matter after

April 1, 2021. (Id.) Moreover, this court ordered that the trial

not commence on April 5, 2021, as scheduled, but instead, for a

date at least 30 days thereafter. (Id.)

C. Factual Background

The majority of facts are not disputed, and any material

factual disputes will be specifically addressed in the relevant

analysis. The facts described in this summary are taken in a

light most favorable to Plaintiff. Matsushita Elec. Indus. Co.

v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

When Plaintiff was fifteen years old, he underwent surgery

to install a mechanical heart valve. (Attachment 7 – Excerpts

from the Dep. of David Ray Gunter (“Gunter Dep.”) (Doc. 126-9)

at 4.)1 He was placed on Warfarin, which is also known as

Coumadin, a prescription blood thinner. (Id.)

1 All citations in this Memorandum Opinion and Order to

documents filed with the court refer to the page numbers located

at the bottom right-hand corner of the documents as they appear

on CM/ECF.

Plaintiff was arrested in Forsyth County on November 6,

2012, (id. at 8), pursuant to a bench warrant for his failure to

appear in court in Davie County, (see id. at 5-7). After

spending the night in the Forsyth County Jail, Plaintiff was

transferred to the Davie County Detention Center (“DCDC”) on

November 7, 2012. (Id. at 8-9.)

Plaintiff was screened upon his arrival at DCDC by Fran

Jackson, (id. at 10), a nurse and the Davie County Medical Team

Administrator for Southern Health Partners, Inc. (“SHP”)2, the

contracted medical care provider for both DCDC and the Stokes

County Detention Center (“SCDC”). (Pl.’s Resp. (Doc. 138) Exs.

1, 2.) Plaintiff told Jackson that he would be released later

that day and did not want her to contact his medical care

providers. (Gunter Dep. (Doc. 126-9) at 14; Attachment 8 -

Excerpts from the Dep. of Francessia Robinson Jackson (“Jackson

Dep.”) (Doc. 126-10) at 4-6.) Plaintiff told Defendant Jackson

that he had heart problems, a mechanical heart valve, that he

took Coumadin, which she noted in his medical record. (Gunter

Dep. (Doc. 126-9) at 11-14.) Plaintiff said he would have his

2 Both parties address this fact as though it is not

disputed, (see Pub. Defs.’ Br. (Doc. 126) at 1, 4; Pl.’s Resp.

(Doc. 138) at 4-5), although there is no citation to an

affidavit, deposition, or other necessary evidentiary foundation

as required by Rule 56. Nevertheless, in the absence of any

dispute or objection, the court will treat the fact as

undisputed.

medications brought to the jail if he was not released. (Jackson

Dep. (Doc. 126-10) at 4.)

Plaintiff was not released on November 7, 2012, and on

November 8, 2012, Jackson contacted Plaintiff’s primary care

physician and pharmacy to verify the information Plaintiff had

provided about his medication and conditions. (Id. at 4, 6.)

Defendant Jackson’s notes in the medical records indicate that

Plaintiff last filled his prescription for 1 mg of Coumadin on

October 19, 2012, and that he did not have any refills

remaining. (Id. at 4.) Defendant Jackson contacted Maplewood

Family Practice, which Plaintiff had indicated was where his

primary care physician worked. (Id.) Maplewood Family Practice

indicated that they had last seen Plaintiff in June 2012 for a

sick visit, but they had last managed Plaintiff’s INR levels in

2010. (Id.) Defendant Jackson’s notes do not indicate that she

was aware of any medical practitioner who had been managing

Plaintiff’s Coumadin medication between 2010 and 2012. (Id.)

On November 8, 2012, following her conversation with

Plaintiff, Jackson consulted with Manuel Maldonado, (id. at 14),

a Physician’s Assistant with SHP who oversaw medical care at

both DCDC and SCDC.3 Maldonado ordered a prescription for 5 mg of

Coumadin and for Plaintiff to have an INR check on November 13,

2012. (Attachment 10 - Excerpts from the Dep. of Manuel F.

Maldonado (“Maldonado Dep.”) (Doc. 126-12) at 4-5.) Plaintiff

received 5 mg of Coumadin each day on November 9 through

November 14, 2012, but not on November 7 or 8.4

On Tuesday, November 13, 2012, Plaintiff underwent an INR

test, which showed that Plaintiff’s INR levels were sub-

therapeutic at 1.07. (Id. at 6.) Maldonado ordered that

Plaintiff’s dosage be increased to 7.5 mg for November 15,

November 17, and November 19, and remain at 5 mg on November 13,

November 14, November 16, and November 18. (Id. at 6-7.) Jackson

gave Plaintiff his medication according to this schedule on

November 13-15.5

On November 16, 2012, a Friday afternoon, Plaintiff was

transferred to SCDC. (Attachment 9 - Excerpts from the

Deposition of Sandra Hunt (“Hunt Dep.”) (Doc. 126-11) at 4, 6,

3 As with certain other facts, the parties treat this fact

as undisputed, (see Pub. Defs.’ Br. (Doc. 126) at 5-6; Pl.’s

Resp. (Doc. 138) at 3), and the court will, as well.

4 As with certain other facts, the parties treat this fact

as undisputed, (see Pub. Defs.’ Br. (Doc. 126) at 5; Pl.’s Resp.

(Doc. 138) at 3), and the court will, as well.

5 As with certain other facts, the parties treat this fact

as undisputed, (see Pub. Defs.’ Br. (Doc. 126) at 5; Pl.’s Resp.

(Doc. 138) at 3), and the court will, as well.

8.) Prior to the transfer, Jackson completed a transfer form,

summarizing Plaintiff’s medical condition and indicating the

medication plan. (Jackson Dep. (Doc. 126-10) at 7.) Plaintiff

arrived at the jail after Sandra Hunt, a nurse and the

Mechanical Team Administrator for SHP, had left for the weekend.

(Hunt Dep. (Doc. 126-11) at 4-5.) In accordance with jail

policy, a detention officer telephoned Hunt at home to notify

her of Plaintiff’s arrival and to answer her questions regarding

Plaintiff’s medication. (Id. at 5-6.) Hunt did not direct the

SCDC detention staff to dispense any medication to Plaintiff,

and without specific authorization from Hunt, SCDC staff were

prohibited from dispensing medication to Plaintiff. (Id. at

9-10.) Plaintiff received Coumadin medication on November 19 and

November 20. (Id. at 16.) Plaintiff was released from SCDC on

Wednesday, November 21, 2012. (Id.)

Plaintiff did not interact with Defendants Stokes or Sloan

while he was detained in the DCDC, or with Defendants Marshall

or Cone while detained in the SCDC. (Gunter Dep. (Doc. 126-9) at

32-34, 39-40.) Defendant Stokes, Marshall, Cone, and Sloan did

not have any personal knowledge of Plaintiff or any reason to

believe that Plaintiff was not receiving adequate medical care.

(Doc. 126-1 ¶¶ 7, 14; Doc. 126-2 ¶ 14; Doc. 126-3 ¶ 8; Doc.

126-4 ¶¶ 4-5.) Plaintiff did not submit any grievance forms or

pursue any administrative remedies while he was detained in the

DCDC. (Gunter Dep. (Doc. 126-9) at 35.) While he was detained in

the SCDC, Plaintiff did not complain to anyone about his medical

care or medication. (Id. at 36.) On November 19, 2012, Plaintiff

submitted a single grievance form to the staff at SCDC, in which

he wrote that he had a heart condition, and he would like to

move to a lower bunk. (Gunter Dep. (Doc. 126-9) at 46-49.)

Plaintiff’s request was granted. (Id.)

On November 29, 2012, Plaintiff was admitted to Wake Forest

Baptist Medical Center for a blood clot. (Doc. 124-17 at 2.)

Plaintiff was discharged from the hospital on December 11, 2012.

(Id. at 4.) At that time, the clot had been surgically removed,

his organs were viable, and there was no medical need for a

bowel resection. (Id. at 3-4.) On January 18, 2013, Plaintiff

was diagnosed with a second blood clot, which required surgeons

to resection part of Plaintiff’s bowel. (Second Am. Compl. (Doc.

57) ¶¶ 118-19.)

II. STANDARD OF REVIEW

Summary judgment is appropriate when “there is no genuine

dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a); see Celotex

Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). This court’s

summary judgment inquiry is whether the evidence “is so one-

sided that one party must prevail as a matter of law.” Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). The moving

party bears the initial burden of demonstrating “that there is

an absence of evidence to support the nonmoving party’s case.”

Celotex Corp., 477 U.S. at 325. If the “moving party discharges

its burden . . . , the nonmoving party must come forward with

specific facts showing that there is a genuine issue for trial.”

McLean v. Patten Cmtys., Inc., 332 F.3d 714, 718-19 (4th Cir.

2003) (citing Matsushita Elec. Indus. Co., 475 U.S. at 586-87).

Summary judgment should be granted “unless a reasonable jury

could return a verdict in favor of the nonmoving party on the

evidence presented.” Id. at 719 (citing Liberty Lobby, 477 U.S.

at 247–48).

When considering a motion for summary judgment, courts must

“construe the evidence in the light most favorable to . . . the

non-moving party. [Courts] do not weigh the evidence or make

credibility determinations.” Wilson v. Prince George’s Cnty.,

893 F.3d 213, 218-19 (4th Cir. 2018) (internal citations

omitted).

III. ANALYSIS

A. Public Defendants’ Motion to Strike

As an initial matter, this court considers Public

Defendants’ Motion to Strike Plaintiff’s Surreply Brief to

Public Defendants’ Motion for Summary Judgment. (Doc. 150; Pl.’s

Surreply (Doc. 149).) Public Defendants argue that courts in

this district “generally ‘allow a party to file a surreply only

when fairness dictates based on new arguments raised in the

previous reply,’” (Pub. Defs.’ Mot. to Strike Br. (Doc. 151) at

4 (citing DiPaulo v. Potter, 733 F. Supp. 2d 666, 670 (M.D.N.C.

2010)). Public Defendants argue that Plaintiff “neither sought

nor obtained leave from the Court to file his Surreply,” nor has

he “shown, nor even attempted to show, that based on new

arguments raised in the previous reply, fairness dictates that

he be allowed to file a surreply.” (Id. (internal quotations

omitted).)

Plaintiff argues that because Public Defendants’ opening

brief addresses municipal liability under the standard

established in Monell v. Dep’t of Soc. Servs., 436 U.S. 658

(1978) in a “cursory and superficial way, merely offering

conclusory statements and essentially no analysis,” (Pl.’s Resp.

to Mot. to Strike (Doc. 161) at 2), Public Defendants’ reply

brief is the first time Public Defendants address Plaintiff’s

argument that “Public Defendants’ policies, customs and

practices caused or contributed to the failure to administer

medication to plaintiff as prescribed.” (Id. at 3.) Plaintiff

argues that his Surreply Brief “primarily responds” to Public

Defendants’ “new” municipal liability arguments, and thus, the

brief was “filed in harmony with the purposes recognized by this

Court as the proper function of a Surreply Brief.” (Id.)

This court disagrees. The Rules of Practice and Procedure

of the United States District Court for the Middle District of

North Carolina (“Local Rules”) allow only for the filing of a

motion, a single response to a motion, and a single reply brief,

see LR7.3, including Motions for Summary Judgment, see

LR56.1(d).6 Although courts in this district “[g]enerally allow a

party to file a Surreply only when fairness dictates based on

new arguments raised in the previous reply,” DiPaulo, 733 F.

Supp. 2d at 670, this court finds Plaintiff’s arguments that his

brief responds to new arguments raised in Public Defendants’

Reply Brief unpersuasive.

First, contrary to Plaintiff’s assertions, this court finds

that Public Defendants did raise municipal liability issues

under Monell in their opening brief. In a section of their Brief

6 The Local Rules address Surreply Briefs in only one

instance, stating that, “[i]f an evidentiary objection is raised

by the moving party in its reply memorandum, the non-moving

party may file a surreply memorandum pursuant to [Local Rule

7.6] within seven (7) days addressing only the evidentiary

objection.” LR7.6 (emphasis added). The parties agree that this

exception does not apply in this matter. (See Pub. Defs.’ Mot.

to Strike Br. (Doc. 151); Pl.’s Resp. to Mot. to Strike (Doc.

161).)

entitled, “The Moving Defendants are Entitled to Summary

Judgment as to Any Section 1983 Municipal Liability Claims,”

Public Defendants stated the law regarding municipal liability

and provided an application of the evidence in this matter to

the law, including citing to Monell. (Pub. Defs.’ Br. (Doc. 126)

at 15-16.) This court finds that Public Defendants’ argument was

sufficient for them to meet their initial burden of

demonstrating “that there is an absence of evidence to support

the nonmoving party’s case,” Celotex Corp., 477 U.S. at 325, and

to provide notice to Plaintiff of their arguments.

Plaintiff may characterize this section of Public

Defendants’ Brief as a “cursory,” “superficial,” “conclusory,”

discussion of Monell and municipal liability with “essentially

no analysis,” (Pl.’s Resp. to Mot. to Strike (Doc. 161) at 2),

but Plaintiff was able to respond, generating more than five

pages of analysis describing law and evidence to support his

position on municipal liability, (see Pl.’s Resp. (Doc. 138) at

5-11, 17). For this reason, this court finds that Plaintiff

understood that Public Defendants had raised Monell and

municipal liability in their opening brief, and thus, it was not

a new argument when Public Defendants addressed it for a second

time in their Reply Brief.

Moreover, this court finds that Public Defendants’

discussion of municipal liability under Monell in their Reply

Brief is consistent with the Local Rules, which permit a reply

that “address[es] matters newly raised in [Plaintiff’s]

response.” LR56.1(e). In a single paragraph in their Reply

Brief, Public Defendants quote factual statements from

Plaintiff’s response and briefly offer an argument in reply.

(See Pub. Defs.’ Reply (Doc. 141) at 9.) This is the very

purpose of a Reply under the Local Rules. See LR56.1(e). To

allow Plaintiff to file a Surreply in this instance would be to

open the door to an endless barrage of briefing any time a party

exercises their right to file a Reply that conforms to the Local

Rules.

Finally, as Plaintiff recognizes, Plaintiff’s Surreply

Brief does more than respond to any allegedly new municipal

liability arguments raised in Public Defendants’ Reply Brief.

(See Pl.’s Resp. to Mot. to Strike (Doc. 161) at 3 (“Plaintiff

primarily responds to the new arguments relating to the Monell

claims, and offers direct authority under North Carolina law

. . . .” (emphasis added)).) In one section, Plaintiff argues

why he believes his claims under N.C. Gen. Stat. § 162-55 are

“viable.” (Pl.’s Surreply (Doc. 149) at 7.) In another,

Plaintiff cites two additional North Carolina state court cases

in support of his argument that Public Defendants waived

governmental immunity by contracting with SHP. (Id. at 8.) This

court does not see a reason why Plaintiff could not have

identified these additional authorities prior to submitting his

Response, (see Pub. Defs.’ Br. (Doc. 126) at 21-23), and

Plaintiff does not offer one, (Pl.’s Surreply (Doc. 149) at 8;

Pl.’s Resp. to Mot. to Strike (Doc. 161) at 3).7 If Plaintiff

became aware after filing his Response that he had not presented

this court with complete case law supporting his position, he

should have requested leave of this court to file additional

briefing, rather than submitting a Surreply without permission.

For these reasons, this court does not find that “fairness

dictates” that Plaintiff be permitted to file a Surreply. See

DiPaulo, 733 F. Supp. 2d at 670. Nevertheless, this court has

reviewed Plaintiff’s Surreply and will decline to consider

7 This court notes, as Public Defendants argue, (Pub. Defs.’

Mot. to Strike Br. (Doc. 151) at 4), that Plaintiff’s original

deadline to file his Response was July 20, 2020, and he failed

to comply. (See Text Order 03/23/2020.) On July 23, 2020,

Plaintiff filed a Motion for Extension of Time to File

Opposition Briefs to Defendants’ Motions for Summary Judgment.

(Doc. 130.) When this court granted Plaintiff’s motion and

allowed Plaintiff until July 30, 2020, to file his response,

(Doc. 135 at 2), this court noted that Plaintiff had been aware

of the deadline for responses to any motions for summary

judgment since March 23, 2020, (id. at 1), and of Public

Defendants’ intent to file a Motion for Summary Judgment since

June 25, 2020, (id. at 2). Given this notice, this court finds

that Plaintiff had ample time in which to research these legal

issues and identify these authorities.

Plaintiff’s arguments, as this court will grant Public

Defendants’ Motion for Summary Judgment on other grounds and

need not reach the arguments raised in Plaintiff’s Surreply. See

discussion infra Section III.B. For this reason, this court will

deny Public Defendants’ Motion to Strike, (Doc. 150), as moot.

B. Public Defendants’ Motion for Summary Judgment

Having considered Public Defendants’ Motion to Strike, this

court now considers Public Defendants’ Motion for Summary

Judgment. (Doc. 125.)

1. Plaintiff’s Claim under 42 U.S.C. § 1983

Public Defendants first move for summary judgment on

Plaintiff’s claim under 42 U.S.C. § 1983. (Pub. Defs.’ Br. (Doc.

126) at 9-16.)

a. Parties’ Arguments

Public Defendants argue that Plaintiff’s claims “are

premised entirely upon his contention that SHP failed to provide

him with proper medical care” for his mechanical heart valve,

(id. at 10), a contention that Plaintiff does not contest, (see

Pl.’s Resp. (Doc. 138) at 7-9). Public Defendants make several

arguments for why Plaintiff’s claim fails. First, Public

Defendants argue that no violation of Plaintiff’s constitutional

rights occurred, as “[m]ere negligence or medical malpractice

does not rise to a constitutional violation.” (Pub. Defs.’ Br.

(Doc. 126) at 10.) Second, they argue that the evidence does not

show that Public Defendants acted with deliberate indifference

to Plaintiff’s constitutional rights. (Id. at 11.) Third, Public

Defendants argue that they are entitled to qualified immunity.

(Id. at 13.) Fourth, Public Defendants argue that Plaintiff

failed to exhaust his administrative remedies before filing

suit. (Id. at 13-14.) Fifth, Public Defendants argue that

municipal liability bars Plaintiff’s claims. (Id. at 15-16.)

In response, Plaintiff argues that “[d]eprivation of

coumadin for a day or two is sufficient to create a substantial

risk of harm for a patient with a mechanical heart valve,”

(Pl.’s Resp. (Doc. 138) at 7), such that Public Defendants

violated Plaintiff’s constitutional rights by failing to provide

him with adequate Coumadin therapy, (id. at 7-9). Plaintiff also

argues that Defendants Davie County and Stokes County are liable

as municipalities because SHP’s policies “resulted in

[Plaintiff] not receiving doses of his critical anticoagulant

medication,” (id. at 10), and SHP established medical policy for

the Counties and Sheriffs, (id. at 6). Moreover, Plaintiff

argues that Defendants Stokes, Sloan, Marshall, and Cone are not

entitled to qualified immunity because they have a nondelegable

duty to provide medical care to detainees. (See id. at 12.)

Finally, Plaintiff argues that he was not required to exhaust

his administrative remedies. (Id. at 13-17.)

b. A Reasonable Jury could not find that a

Constitutional Violation Occurred

This court finds that there is not a genuine dispute of

material fact as to whether a violation of Plaintiff’s

constitutional rights occurred.

In Estelle v. Gamble, the Supreme Court held that prison

officials violate the Eighth Amendment’s prohibition against

“cruel and unusual punishment” when they are deliberately

indifferent to the serious medical needs of their prisoners.

429 U.S. 97, 104-05 (1976). “Pretrial detainees are entitled to

at least the same protection under the Fourteenth Amendment as

are convicted prisoners under the Eighth Amendment.” Young v.

City of Mount Ranier, 238 F.3d 567, 575 (4th Cir. 2001)

(footnote omitted).

Pretrial detainees alleging they have been subjected to

unconstitutional conditions of confinement must satisfy a

two-pronged test: First, they must allege that the deprivation

alleged was “objectively, sufficiently serious.” Scinto v.

Stansberry, 841 F.3d 219, 225 (4th Cir. 2016) (citing Farmer v.

Brennan, 511 U.S. 825, 834 (1994) (internal quotations

omitted)). “To be sufficiently serious, the deprivation must be

extreme – meaning that it poses a serious or significant

physical or emotional injury,” id. (internal quotations

omitted), and be “so obvious that even a lay person would easily

recognize the necessity for a doctor’s attention.” Iko v.

Shreve, 535 F.3d 225, 241 (4th Cir. 2008) (internal quotations

omitted).

Second, pretrial detainees must show that prison officials

acted with deliberate indifference, meaning that “the official

knew of and disregarded an excessive risk to inmate health or

safety.” Scinto, 841 F.3d at 225 (citing Farmer, 511 U.S. at

837) (internal quotations, and modifications omitted). Prison

officials must have “personal knowledge of and involvement in

the alleged deprivation of [the prisoner’s] rights in order to

be liable,” as “[t]he doctrine of respondeat superior has no

application” under § 1983. Wright v. Collins, 766 F.2d 841, 849-

50 (4th Cir. 1985) (internal quotations omitted). For example,

in Sosebee v. Murphy, the Fourth Circuit found that prison

guards were deliberately indifferent to an inmate’s medical

needs where the record was “replete with evidence from which a

jury could rationally find that the guards on duty were aware of

[the plaintiff’s] serious condition and intentionally abstained

from seeking medical help.” 797 F.2d 179, 182 (4th Cir. 1986).

This evidence included testimony that prison guards joked about

the plaintiff’s visibly poor physical state for several hours

and threatened all prisoners with solitary confinement if they

continued to request that the plaintiff receive medical

assistance. Id.

Moreover, “an inadvertent failure to provide adequate

medical care” does not satisfy the standard, and thus, mere

negligence in diagnosis or treatment is insufficient. Estelle,

429 U.S. at 105-06; see also Farmer, 511 U.S. at 835 (holding

that deliberate indifference requires a showing of “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”). “Disagreements between an

inmate and a physician over the inmate’s proper medical care do

not state a § 1983 claim unless exceptional circumstances are

alleged.” Wright, 766 F.2d at 849. Instead, “officials evince

deliberate indifference by acting intentionally to delay or deny

the prisoner access to adequate medical care or by ignoring an

inmate’s known serious medical needs.” Sharpe v. S.C. Dep’t of

Corr., 621 F. App’x 732, 733 (4th Cir. 2015) (citing Estelle,

429 U.S. at 104-05).

For example, in Smith v. Smith, 589 F.3d 736 (4th Cir.

2009), the Fourth Circuit held that a plaintiff had stated a

claim for deliberate indifference where the complaint alleged

that a nurse had destroyed the order which would have enabled a

patient to receive necessary medical treatment. Id. at 739. By

contrast, in Wright, the Fourth Circuit held that, where a

doctor and others “provided [the inmate] with medical treatment

on numerous occasions,” the “allegation that [the inmate’s]

medical care was inadequate would, at most, constitute a claim

of medical malpractice.” 766 F.2d at 849.

Even if this court assumes, as Plaintiff argues, that

“[d]eprivation of coumadin for a day or two is sufficient to

create a substantial risk of harm for a patient with a

mechanical heart valve” under the first prong of the analysis

for constitutional claims, (see Pl.’s Resp. (Doc. 138) at 7),

this court finds that, based on the evidence presented,

Plaintiff’s evidence does not create a genuine dispute of

material fact that Public Defendants were deliberately

indifferent to Plaintiff’s medical needs.

First, this court finds that Plaintiff received medical

treatment from SHP personnel while incarcerated at DCDC and

SCDC. (See Pl.’s Resp. (Doc. 138) at 3-4.) Plaintiff was

evaluated upon arrival at the DCDC, (see id. at 3), was

prescribed Coumadin after he signed a medical authorization,

(see id.; Pub. Defs.’ Br. (Doc. 126) at 4-5), was transported

off-site for medical testing, (Pub. Defs.’ Br. (Doc. 126) at 5),

and received Coumadin on seven of the nine days he was detained

at the DCDC. (Id.) While at SCDC, Detention Center staff

notified Nurse Hunt that Plaintiff had arrived. (Id. at 5-6;

Pl.’s Resp. (Doc. 138) at 4.) When Nurse Hunt returned to work

on Monday, she provided Coumadin to Plaintiff. (Pub. Defs.’ Br.

(Doc. 126) at 6.)

Unlike the guards in Sosebee, who “intentionally abstained

from seeking medical help” for the inmate, 797 F.2d at 182, or

the nurse in Smith, who deliberately prevented the patient from

receiving medical treatment, 589 F.3d at 739, there is no

evidence on the record that Public Defendants intended to

prevent or delay Plaintiff from receiving medical treatment or

that Public Defendants ignored his medical needs. That Plaintiff

disagrees with the treatment he received or that a different

course of treatment might have led to a better medical outcome,

(see Pl.’s Resp. (Doc. 138) at 7-8), is not evidence of a

subjective intent by Public Defendants to deprive Plaintiff of

medical treatment, which is necessary to state a constitutional

violation. “Medical malpractice does not become a constitutional

violation merely because the victim is a prisoner.” Estelle, 429

U.S. at 106.

Second, Plaintiff has not presented evidence that

Defendants Sloan, Stokes, Marshall, or Cone had any personal

knowledge or involvement regarding Plaintiff’s detention or

medical care. (See Pl.’s Resp. (Doc. 138) at 5-17.) Even if the

medical staff were negligent or committed medical malpractice,

Plaintiff’s arguments that Public Defendants had a non-delegable

duty to provide medical care to Plaintiff, (id. at 12-13), are,

at best, an argument that Public Defendants are liable under a

respondeat superior theory, which is not permitted in § 1983

claims, Wright, 766 F.2d at 850. In the absence of evidence that

Public Defendants had personal knowledge of Plaintiff’s need for

medical treatment, see id., a reasonable jury cannot find that

Public Defendants “knew of and disregarded an excessive risk to

inmate health or safety.” Scinto, 841 F.3d at 225 (citing

Farmer, 511 U.S. at 837) (internal quotations and modifications

omitted) (emphasis added).

Finally, contrary to Plaintiff’s assertions, (Pl’s Resp.

(Doc. 138) at 12), prison officials are entitled to rely on the

opinions, judgment, and expertise of medical personnel in

determining appropriate treatment for inmates because they may

expose themselves to liability if they interfere with medical

personnel’s medical judgment. See, e.g., Shakka v. Smith, 71

F.3d 162, 167 (4th Cir. 1995) (finding that, if prison officials

had contradicted the medical professional’s instructions, “they

might have incurred liability for interfering with [the

inmate’s] treatment”); Miltier v. Beorn, 896 F.2d 848, 854-55

(4th Cir. 1990) (stating that supervisory prison officials are

entitled to rely on professional judgment of trained medical

personnel and may be found to have been deliberately indifferent

by intentionally interfering with a prisoner’s medical treatment

ordered by medical personnel); Pickens v. Lewis, No. 1:15-cv-

275-FDW, 2018 WL 2187051, at *10 (W.D.N.C. May 11, 2018)

(holding that prison officials without medical training are “not

responsible for determining the course of treatment or for

overruling the opinions of those professionals”) (internal

quotations and citations omitted); Tate v. Alamance Cnty. Jail,

No. 1:06CV246, 2007 WL 2156319, at *2 (M.D.N.C. July 26, 2007)

(“An officer fulfills his duty by notifying medical personnel.

He is not personally responsible to provide medical care.”).

Plaintiff has not presented evidence that Public Defendants had

the medical training necessary to make decisions regarding

Plaintiff’s care, (see Pl.’s Resp. (Doc. 138) at 4-11), and as

such, this court does not find that Public Defendants should

have understood whether Plaintiff’s medical care was proper or

that it would have been appropriate for Public Defendants to

intervene in Plaintiff’s medical care.

For these reasons, a reasonable jury could not find that

Public Defendants violated Plaintiff’s constitutional rights,

and this court will grant Public Defendants’ Motion for Summary

Judgment as to Plaintiff’s § 1983 claims.8

2. Plaintiff’s State Law Claims

a. Injunction

Public Defendants move for summary judgment on Plaintiff’s

“Injunction” claim. (Pub. Defs.’ Br. (Doc. 126) at 16.)

Plaintiff “concedes that since [he] is no longer confined, he

cannot benefit from an injunction” and therefore, he withdraws

his claim. (Pl.’s Resp. (Doc. 138) at 17.) Accordingly, this

court will grant Public Defendants’ motion regarding Plaintiff’s

claim for an injunction.

b. Claim under N.C. Gen. Stat. § 162-55

Public Defendants also move for summary judgment as to

Plaintiff’s claim under N.C. Gen. Stat. § 162-55 against

Defendants Stokes, Marshall, Sloan, and Cone. (Pub. Defs.’ Br.

(Doc. 126) at 17-18.) The statute states, “[i]f the keeper of a

8 Because questions of qualified immunity and municipal

liability are relevant only where there is a constitutional

violation, see Pearson v. Callahan, 555 U.S. 223, 236 (2009)

(describing the two-part inquiry for qualified immunity claims);

Belcher v. Oliver, 898 F.2d 32, 36 (4th Cir. 1990) (in a

municipal liability case, holding that “[b]ecause it is clear

that there was no constitutional violation we need not reach the

question of whether a municipal policy was responsible for the

officers’ actions”), this court declines to consider these

issues. This court will also decline to consider whether

Plaintiff failed to exhaust his administrative remedies. (See

Pub. Defs.’ Br. (Doc. 126) at 13-14.)

jail shall do, or cause to be done, any wrong or injury to the

prisoners committed to his custody, contrary to law, he shall

not only pay treble damages to the person injured, but shall be

guilty of a Class 1 misdemeanor.” N.C. Gen. Stat. § 162-55.

Citing Letchworth v. Gay, 874 F. Supp. 107 (E.D.N.C. 1995),

Public Defendants argue that a claimant must establish criminal

conduct on the part of the jail keeper in order to recover under

the statute, and at worst, any failure by SHP’s medical staff to

provide Warfarin to Plaintiff “constitutes medical malpractice,

not criminal conduct.” (Pub. Defs.’ Br. (Doc. 126) at 17.)

Moreover, Public Defendants argue that Plaintiff’s claim fails

as a matter of law because “none of the moving defendants

engaged in any criminal conduct, nor is there [] any evidence

that the moving defendants intended to cause Plaintiff any

harm.” (Id. at 17-18 (footnote omitted).)

In response, Plaintiff argues that Public Defendants’

citation of Letchworth is insufficient, as the facts of the case

are “readily, and easily distinguishable from the claims Gunter

makes in this cause.” (Pl.’s Resp. (Doc. 138) at 18.) Plaintiff

further argues that the Letchworth court concluded that the

plaintiff had not established that the jailer had acted with the

requisite intent for criminal negligence under the statute, and

that “[n]umerous federal authorities have equated the federal

threshold for § 1983 violations, deliberate indifference, with

criminal negligence.” (Id.) Plaintiff argues that he has

“proven” in “other sections of [his] Brief” that Public

Defendants acted with this intent. (Id.)

There are relatively few reported cases in which North

Carolina or Federal courts have interpreted the language of N.C.

Gen. Stat. § 162-55. See Letchworth, 874 F. Supp. at 108-09

(explaining that, as of 1995, “this statute has been cited in

reported cases only three times” during the statute’s “entire

two hundred year history”). However, courts interpreting the

statute have held that, to be liable for a violation of N.C.

Gen. Stat. § 162-55, a jailer must have acted with “criminal

negligence,” meaning “such recklessness or carelessness,

resulting in injury or death, as imports a thoughtless disregard

of consequences, or a heedless indifference to the safety and

rights of others.” See, e.g., Stockton v. Wake Cnty., 173 F.

Supp. 3d 292, 319 (E.D.N.C. 2016) (internal quotations omitted);

Layman v. Alexander, 294 F. Supp. 2d 784, 796 (W.D.N.C. 2003);

Letchworth, 874 F. Supp. at 109. The level of intent for

criminal negligence is similar to that for § 1983 actions for

deliberate indifference to an inmate’s medical needs. Stockton,

173 F. Supp. 3d at 319. (“Thus, while mere negligence is not

sufficient to subject a defendant jailer to liability under

§ 162-55, reckless indifference to an inmate’s safety, resulting

in injury or death, is sufficient.”) (internal quotations and

citations omitted).

This court finds that the evidence does not create a

genuine dispute of material fact that Public Defendants acted

with this criminally negligent intent. As this court found in

its analysis of Plaintiff’s claims under 42 U.S.C. § 1983, SHP

medical personnel’s actions could be construed, at best, as

negligence or medical malpractice, and Public Defendants did not

have personal knowledge of Plaintiff or intend to injure him by

depriving him of medical care. See discussion supra Section

III.B.1. Because “mere negligence is not sufficient to subject a

defendant jailer to liability under § 162-55,” Stockton, 173 F.

Supp. 3d at 319 (internal quotations omitted), a reasonable jury

could not find based on the evidence that Public Defendants are

liable for a violation of N.C. Gen. Stat. § 162-55. Accordingly,

this court will grant Public Defendants’ motion for summary

judgment as to this claim.

c. Negligent Supervision

Public Defendants also move for summary judgment as to

Plaintiff’s negligent supervision claim. (Pub. Defs.’ Br. (Doc.

126) at 18-19.)

North Carolina recognizes a claim of negligent supervision

against an employer where the plaintiff establishes: (1) “the

specific negligent act on which the action is founded”; (2)

“incompetency, by inherent unfitness or previous specific acts

of negligence, from which incompetency may be inferred”; (3)

“either actual notice to the master of such unfitness or bad

habits, or constructive notice, by showing that the master could

have known the facts had he used ordinary care in oversight and

supervision”; and (4) “that the injury complained of resulted

from the incompetency proved.” Medlin v. Bass, 327 N.C. 587,

591, 398 S.E.2d 460, 462 (1990) (internal citations, quotations,

and emphasis omitted).

Public Defendants argue that this court should grant

summary judgment in favor of Public Defendants because Plaintiff

cannot establish the elements of a negligent supervision claim.

(Pub. Defs.’ Br. (Doc. 126) at 19.) Citing Plaintiff’s

deposition testimony, Public Defendants argue that all of

Plaintiff’s claim solely concerns conduct by SHP’s medical

personnel, and that “Plaintiff readily admits that no member of

the detention staff at either the DCDC or the SCDC acted

improperly in any way.” (Id. at 18 (citing Gunter Dep. (Doc.

126-9) at 36, 39, 41-42).) Public Defendants argue that the SHP

personnel were not employees of Public Defendants and that

Plaintiff cannot show evidence that any of the Public Defendants

knew or had reason to know that the SHP personnel were

incompetent. (Id. at 19.)

In response, Plaintiff argues that “[a] contractor has a

duty to supervise its independent contractors,” (Pl.’s Resp.

(Doc. 138) at 18), and that “[e]ven taking as true that the

Public Defendants had not experienced imcompetence [sic] of SHP

in their facilities prior to Mr. Gunter’s injuries,” there are

“hundreds of civil actions for malpractice and negligent medical

care which have been filed against SHP throughout its operating

areas” and these “constitute[] sufficient notice to the Public

Defendants” of SHP personnel’s negligence, (id. at 18-19).

Plaintiff further argues that “relying blindly on SHP meant that

sooner or later [negligence] would happen at [DCDC and SCDC] if

they took no steps to monitor and supervise SHP, which they

admit that they did not do.” (Id. at 19.)

This court finds Plaintiff has not created a genuine

dispute of material fact that Public Defendants are liable for

negligent supervision. Plaintiff concedes that there were no

known complaints or deficiencies that would have put Public

Defendants on notice that SHP’s medical personnel working at

DCDC and SCDC were providing inadequate medical care to inmates

housed at those facilities. (See Pl.’s Resp. (Doc. 138) at

18-19.) Under the elements of a negligent supervision claim,

Plaintiff is required to present evidence that, “prior to the

act, [Public Defendants] knew or had reason to know of [SHP

medical personnel’s] incompetency.” Hogan v. Forsyth Country

Club Co., 79 N.C. App. 483, 495, 340 S.E.2d 116, 124 (1986); see

also Medlin, 327 N.C. at 591, 398 S.E.2d at 462 (holding that a

plaintiff must demonstrate “either actual notice to the master

of such unfitness or bad habits, or constructive notice, by

showing that the master could have known the facts had he used

ordinary care in oversight and supervision”). By conceding that

Public Defendants did not have notice of SHP personnel’s

incompetence, Plaintiff has not “come forward with specific

facts showing that there is a genuine issue for trial.” McLean,

332 F.3d at 718-19 (internal citations omitted).

Moreover, this court finds Plaintiff’s argument that the

“hundreds of civil actions for malpractice and negligent medical

care which have been filed against SHP throughout its operating

areas constitutes sufficient notice to the Public Defendants,”

(Pl.’s Resp. (Doc. 138) at 19), unconvincing, as Plaintiff

offers no evidence that these claims exist or that Public

Defendants were aware of them. (See id. at 18-19.) Unsupported

allegations may not form the basis of a court’s considerations

at summary judgment. Celotex Corp., 477 U.S. at 323-24 (“One of

the principal purposes of the summary judgment rule is to

isolate and dispose of factually unsupported claims . . . .”).

Because Plaintiff has not presented evidence that Public

Defendants knew or should have known that SHP personnel at SCDC

or DCDC were negligent prior to Plaintiff’s incarceration, this

court finds that the evidence presented is “so one-sided” that

Public Defendants “must prevail as a matter of law.” Anderson,

477 U.S. at 252. Accordingly, this court will grant Public

Defendants’ Motion for Summary Judgment as to Plaintiff’s

negligent supervision claim.

d. False Imprisonment

Public Defendants move for summary judgment as to

Plaintiff’s claim of False Imprisonment. (Pub. Defs.’ Br. (Doc.

126) at 19-20.) Plaintiff “concedes that the facts in this

instance are not sufficiently strong to advocate” that

Plaintiff’s medical treatment “constitutes false imprisonment.”

(Pl.’s Resp. (Doc. 138) at 19.) Accordingly, this court will

grant Public Defendants’ motion regarding Plaintiff’s claim of

False Imprisonment.

e. Intentional Infliction of Emotional Distress

Public Defendants also move for summary judgment on

Plaintiff’s claim of Intentional Infliction of Emotional

Distress. (Pub. Defs.’ Br. (Doc. 126) at 20-21.) Plaintiff

“concedes that in the absence of a diagnosis of mental or

emotional condition, this claim cannot be supported.” (Pl.’s

Resp. (Doc. 138) at 19.) Accordingly, this court will grant

Public Defendants’ motion as to Plaintiff’s claim of Intentional

Infliction of Emotional Distress.

f. Claim under N.C. Gen. Stat. § 58-76-5

Public Defendants also move for summary judgment as to

Plaintiff’s claims against the sheriffs’ official bonds of

Defendants Stokes and Marshall under N.C. Gen. Stat. § 58-76-5.

(Pub. Defs.’ Br. (Doc. 126) at 24-25.) The statute provides

plaintiffs with a statutory cause of action against sheriffs, in

addition to a common law cause of action. N.C. Gen. Stat. § 58-

76-5.

Public Defendants argue that, to raise a claim against a

sheriff’s official bond, Plaintiff must be able to prove every

element of an underlying common law tort claim. (Pub. Defs.’ Br.

(Doc. 126) at 24-25.) Public Defendants argue that Plaintiff’s

state common law tort claims all fail as a matter of law, and

thus, there is not an underlying state law claim which can serve

as the basis for Plaintiff’s claim under N.C. Gen. Stat. § 58-

76-5. (Id. at 25.)

Plaintiff argues that the evidence on the record

establishes Public Defendants’ negligence, namely that Plaintiff

failed to receive at least two doses of coumadin while housed at

DCDC, and three doses of coumadin while housed at SCDC. (Pl.’s

Resp. (Doc. 138) at 21.) Plaintiff argues that because Public

Defendants “do not deny that Gunter required daily doses of

coumadin because of his serious medical condition,” and that

Plaintiff’s “expert witnesses establish that the failure to

provide coumadin . . . caused the severe medical injuries that

[Plaintiff] suffered shortly after his release,” that Plaintiff

has stated a claim for negligence. (Id. at 21-22.)

North Carolina courts have interpreted N.C. Gen. Stat.

§ 58-76-5 to create a statutory right of action, in addition to

a common law cause of action, against a sheriff who either

“intentionally engaged in misconduct and misbehavior while

performing his custodial duties” or who “acted negligently in

the performance of those duties, despite his duty to do

otherwise.” Stafford v. Barker, 129 N.C. App. 576, 585, 502

S.E.2d 1, 6 (1998). To prevail, a plaintiff must prove every

element of a common law negligence claim, as well as every

element of the claim brought under N.C. Gen. Stat. § 58-76-5.

Id.; Sellers v. Rodriguez, 149 N.C. App 619, 624, 561 S.E.2d

336, 339-40 (2002) (holding that the statute “only gives [the

plaintiff] a right of action; it does not relieve [the

plaintiff] of the burden of proving that defendants either

intentionally engaged in neglect, misconduct or misbehavior

while performing their custodial duties”). Where a plaintiff’s

underlying common law claim is dismissed for failure to assert

that defendants acted negligently in the performance of their

duties, a plaintiff’s claim under N.C. Gen. Stat. § 58-76-5

should also be dismissed. Sellers, 149 N.C. App. at 625, 561

S.E.2d at 340 (granting defendant’s motion for summary judgment

on these grounds); Stafford, 129 N.C. App. at 585, 502 S.E.2d

at 6 (same).

This court finds that Plaintiff has not asserted a common

law negligence claim that could support Plaintiff’s claim under

N.C. Gen. Stat. § 58-76-5. Plaintiff’s Second Amended Complaint

does not allege a negligence claim against Public Defendants.

(See Second Am. Compl. (Doc. 57).) Plaintiff’s state law claims

for injury by jailer pursuant to N.C. Gen. Stat. § 162-55 cannot

serve as the underlying common law claim, as this court has

found that Plaintiff has not created a genuine dispute of

material fact as to these claims. See discussion supra Section

III.B.2.b. Similarly, although Plaintiff may assert that there

is evidence on the record that SHP medical personnel were

negligent, (see Pl.’s Resp. (Doc. 138) at 21-22), this court has

already found that a reasonable jury could not find on the

evidence presented that Public Defendants were negligent in

their supervision of SHP medical personnel, see discussion supra

Section III.B.2.c. Accordingly, Plaintiff’s negligent

supervision claim cannot serve as the underlying cause of

action.

Finally, Plaintiff’s citation of Myers v. Bryant, 188 N.C.

App. 585, 655 S.E.2d 882 (2008) is inapposite and does not raise

a common law negligence claim. (Pl.’s Resp. (Doc. 138) at 22.)

The allegations against the officers in Myers concerned the

officers’ decisions to deny medical care to the inmate, 188 N.C.

App. at 586, 655 S.E.2d at 884, whereas Plaintiff argues that

SHP medical personnel denied medical care to Plaintiff, (Pl’s

Resp. (Doc. 138) at 21-22), and there is no evidence on the

record that Public Defendants had any direct interaction or

knowledge of Plaintiff while he was incarcerated in their

facilities. (See id. at 4, 21-22; Pub. Defs.’ Br. (Doc. 126) at

6.) For this reason, this court does not find Plaintiff’s

recitation of the evidence against SHP medical personnel to

state a common law negligence claim against Public Defendants.

For these reasons, this court will grant Public Defendants’

motion for summary judgment as to Plaintiff’s claim under N.C.

Gen. Stat. § 58-76-5.

g. Claims under the North Carolina Constitution

Public Defendants also move for summary judgment as to any

claims “Plaintiff purports to assert . . . under the North

Carolina Constitution,” arguing that Plaintiff has adequate

remedies at law available. (Pub. Defs.’ Br. (Doc. 126) at 25

(footnote omitted).)

Public Defendants argue, (id. n.6), and this court agrees,

that, at times, Plaintiff’s Second Amended Complaint fails to

identify the nature of Plaintiff’s claims or to articulate the

legal theory upon which they are based. For example, Plaintiff’s

Fifth Claim for Relief asserts a “Direct Claim Against Sheriffs

and Jailers,” (Second Am. Compl. (Doc. 57) ¶¶ 153-58), but

Plaintiff does not identify whether the basis for that claim is

grounded in statute or the North Carolina Constitution. (Id.)

Similarly, the text of Plaintiff’s Third Claim for Relief is

generally titled as “Claims Against Davie County . . . Stokes

County,” but the body of the claim alleges that Defendants Davie

County and Stokes County “refused to perform their oversight and

policy-making duties to assure that plaintiff and other

prisoners and detainees . . . receive adequate medical care, and

have failed and refused to provide medical care to plaintiff and

others as directed by . . . the North Carolina Constitution.”

(Id. ¶¶ 139-45.) Similarly, Plaintiff’s Fourth Claim for Relief

is generally titled as “Claims Against Defendant Sheriffs and

their Deputies,” yet the allegations contained therein assert

that the conduct violated the North Carolina Constitution. (Id.

¶¶ 146-52.)

In response, Plaintiff states only that he “recognizes that

North Carolina attempts to harmonize its Due Process

jurisprudence with that of the United States Due Process

jurisprudence” and that “[t]his issue is for preservation only.”

(Pl.’s Resp. (Doc. 138) at 23.)

Because this court finds that Public Defendants, as the

moving party, have discharged their initial burden of

demonstrating “that there is an absence of evidence to support”

any claims brought under the North Carolina Constitution,

Celotex Corp., 477 U.S. at 325, and Plaintiff has not “come

forward with specific facts showing that there is a genuine

issue for trial,” McLean, 332 F.3d at 718-19, this court will

grant summary judgment for Public Defendants as to Plaintiff’s

purported claims under the North Carolina Constitution.

h. Governmental and Public Officer’s Immunity

Defenses

In addition to their arguments as to liability for

Plaintiff’s state law claims, Public Defendants argue that

Plaintiff’s official capacity state law tort claims are barred

by governmental immunity, (Pub. Defs.’ Br. (Doc. 126) at 21-23),

and public officer’s immunity, (id. at 23-24). These are

affirmative defenses which serve as a complete bar to liability.

Lambert v. Town of Sylva, 259 N.C. App. 294, 301, 816 S.E.2d

187, 193 (2018) (discussing governmental immunity); Mabrey v.

Smith, 144 N.C. App. 119, 124, 548 S.E.2d 183, 187 (2001)

(discussing public officer immunity). Because this court will

grant Public Defendants’ Motion for Summary Judgment as to all

state law claims on other grounds, this court need not consider

whether these affirmative defenses apply.

C. Public Defendants’ Motion for Expedited Ruling

Finally, this court considers Public Defendants’ Motion for

Expedited Ruling or, Alternatively, for Continuance of Trial or

Enlargement of Time in which to Complete Final Pretrial

Preparations, (Doc. 147), and accompanying brief, (Doc. 148).

Public Defendants filed this motion on August 18, 2020, at

which time this matter was set for trial on the October 5, 2020

calendar. (Id. at 2.) In their motion, Public Defendants request

that this court rule on their Motion for Summary Judgment on or

before September 4, 2020, which was the deadline for the parties

to serve and file their pre-trial disclosures, (id. at 1-2),

that this court continue the trial, (id. at 2), or that this

court issue an order allowing the parties fourteen days from the

date this court issued its ruling on the Motion for Summary

Judgment to finalize pretrial preparations. (Id.)

On September 14, 2020, this court entered a text order

directing the parties to stand down from trial preparation until

further notice due to concerns presented by the ongoing COVID-19

pandemic about whether cases set for jury trial would be reached

during the October Master Trial Calendar. (Text Order

09/14/2020.) This court held a status conference on

September 22, 2020, in which counsel for the parties were

present via telephone and in the courtroom. This court addressed

options and considerations for proceeding to trial given the

COVID-19 pandemic, and the parties did not object to continuing

the trial to the April 2021 Master Calendar, subject to

completing summary judgment in 2020. (Minute Entry 09/22/2020.)

This matter is now set for trial commencing at least thirty days

after April 5, 2021. (Doc. 170 at 1.)

Given the changes to the trial calendar, and this court’s

finding that Public Defendants’ Motion for Summary Judgment will

be granted as to all claims, see discussion supra Section

III.B., this court finds that the urgent circumstances described

in Public Defendants’ Motion for Expedited Hearing, (Doc. 147),

and brief, (Doc. 148), no longer exist. Accordingly, this court

will deny Public Defendants’ Motion for Expedited Hearing as

moot.

Iv. CONCLUSION

For the reasons set forth above,

IT IS HEREBY ORDERED that Public Defendants’ Motion for

Summary Judgment, (Doc. 125), is GRANTED as to all claims.

IT IS FURTHER ORDERED that Public Defendants’ Motion for

Expedited Hearing, (Doc. 147), and Motion to Strike, (Doc. 150),

are DENIED AS MOOT.

This the 15th day of March, 2021.

□

LS Wi un L. Mabe. □

Bo Ai san Osha Mt

- 42 -