RICHARDSON v. WELLPATH HEALTH CARE

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

RAMONT LOWELL RICHARDSON, JR., )

)

Plaintiff, )

)

v. ) 1:20cv777

)

WELLPATH HEALTH CARE et. al., )

)

Defendants. )

MEMORANDUM OPINION AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

This case comes before the undersigned United States

Magistrate Judge for a recommendation on Defendant Bobby

Kimbrough’s (“Kimbrough”) Motion for Summary Judgement (Docket

Entry 36; see also Docket Entry 37 (Memorandum in Support)

(collectively, the “Summary Judgment Motion”)). For the reasons

that follow, the Court should grant the Summary Judgment Motion.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Pursuant to 42 U.S.C. § 1983 (“Section 1983”), Ramont Lowell

Richardson, Jr. (the “Plaintiff”), a pretrial detainee acting pro

se, commenced this action against several Defendants, including

Kimbrough, for acts and/or omissions amounting to deliberate

indifference to Plaintiff’s serious medical needs during his

detention at Forsyth County Law Enforcement Detention Center

(“FCLEDC”). (See Docket Entry 2 (the “Complaint”) at 1-38.) As

relevant here, Kimbrough, the Forsyth County Sheriff (id. at 5),

allegedly failed to follow statewide mandates for face coverings as

a result of the COVID-19 pandemic (see id. at 8), and refused to

provide a face mask or COVID-19 test to Plaintiff (see id. at 21).

He also allegedly allowed an inmate to move into Plaintiff’s cell

after testing positive for COVID-19. (See id. at 20-21.)

Pursuant to 28 U.S.C. § 1915A(a), the Court (per the

undersigned) screened the Complaint to determine whether, inter

alia, it “fails to state a claim upon which relief may be granted,”

28 U.S.C. § L91T5A (b) (1). (See Docket Entry 4 (the

“Recommendation”) at 1.) In connection with that review, the

undersigned concluded that the Complaint adequately stated a claim

only against Kimbrough for allegedly “den[ying] Plaintiff masks and

testing for C[OVID]-19 for more than two and one[-]half months

while eleven officers and an unknown number of inmates at the

Detention Center tested positive for the virus” (id. at □□□□

Accordingly, the undersigned recommended that the Court dismiss all

claims except those against Kimbrough. (See id. at 6.) The Court

(per Chief United States District Judge Thomas D. Schroeder)

ultimately adopted the Recommendation, ordering “that Plaintiff’s

deliberate indifference claim[] against Defendant[] Kimbrough [ is]

1 The Court (per the undersigned) also concluded that the

Complaint adequately stated a claim against another Defendant,

Rhoades, for allegedly “faillfing] to allow Plaintiff to see a

specialist for [fragments in Plaintiff’s body following a gunshot

wound to his head and partial immobility on his right side or]

. . to receive physical therapy to regain the use of his right

Side” (id. at 5). Plaintiff, however, later moved to amend his

Complaint and drop Rhoades as a Defendant, which the Court granted.

(See Docket Entry 34; Text Order dated Nov. 19, 2021.)

allowed to proceed but that the remainder of the claims in the

complaint are dismissed pursuant to 28 U.S.C. § 1915A for failing

to state a claim upon which relief may be granted.” (Docket Entry

10 at 2.)

Thereafter, the Parties commenced discovery. (See Text Order

dated Aug. 17, 2021 (adopting Scheduling Order).) After discovery

closed, Kimbrough moved for summary judgment. (See Docket Entry

36; see also Docket Entry 37 (Memorandum in Support); Docket Entry

38 (supporting affidavit); Docket Entry 41 (supporting affidavit).)

On May 19, 2022, the Clerk sent Plaintiff a letter advising him of

his “right to file a 20-page response in opposition . . . within 30

days from the date of service of [Kimbrough’s Summary Judgment

Motion] upon [him].” (Docket Entry 40 at 1.) The letter

specifically cautioned Plaintiff that a “failure to respond or

. . . file affidavits or evidence in rebuttal within the allowed

time may cause the [C]ourt to conclude that [Kimbrough’s]

contentions are undisputed and/or that [Plaintiff] no longer

wish[es] to pursue the matter,” as well as that, “unless

[Plaintiff] file[s] a response in opposition to the [Summary

Judgment Motion], it is likely . . . summary judgment [will be]

granted in favor of [Kimbrough].” (Id.) Despite these warnings,

Plaintiff did not respond. (See Docket Entries dated May 19, 2022,

to present.) Given that lack of response and the fact that

Plaintiff did not verify the factual allegations in the Complaint

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(see Docket Entry 2 at 38 (certification that “the factual

allegations have evidentiary support” for purposes of Federal Rule

of Civil Procedure 11)), Plaintiff’s bare allegations cannot

controvert facts which the Summary Judgment Motion or record

establish. See Custer v. Pan Am. Life Ins. Co., 12 F.3d 410, 416

(4th Cir. 1993) (recognizing that party’s failure “to respond to a

summary judgment motion may leave uncontroverted those facts

established by the motion”).2 For the reasons that follow, no

genuine issue of material fact remains and the Court should grant

the Summary Judgment Motion.

II. DISCUSSION

A. Summary Judgment Standards

“The [C]ourt shall grant summary judgment if the movant shows

that 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). A genuine dispute of material fact exists “if the

evidence is such that a reasonable jury could return a verdict for

the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S.

2 By local rule, “[i]f a respondent fails to file a response

within the time required . . ., the motion will be considered and

decided as an uncontested motion, and ordinarily will be granted

without further notice.” M.D.N.C. LR 7.3(k). However, the Fourth

Circuit requires substantive review of even unopposed motions for

summary judgment. See Custer, 12 F.3d at 416 (“[T]he court, in

considering a motion for summary judgment, must review the motion,

even if unopposed, and determine from what it has before it whether

the moving party is entitled to summary judgment as a matter of

law.”).

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242, 248 (1986). The movant bears the burden of establishing the

absence of such dispute. Celotex Corp. v. Catrett, 477 U.S. 317,

323 (1986). In analyzing a summary judgment motion, the Court

“draw[s] all reasonable inferences in favor of the non-moving

party. Emmons v. City of Chesapeake, 982 F.3d 245, 250 (4th Cir.

2020). However, “[u]nsupported speculation is not sufficient to

defeat a summary judgment motion.” Felty v. Graves-Humphreys Co.,

818 F.2d 1126, 1128 (4th Cir. 1987)). Rather, the Court must “find

that a reasonable jury could return a verdict for [the nonmoving

party in order for] a genuine factual dispute [to] exist[] . . . .”

Evans v. Technologies Applications & Serv. Co., 80 F.3d 954, 959

(4th Cir. 1996).

B. Deliberate Indifference

Turning to the constitutional deprivation alleged here,

when the State by the affirmative exercise of its power so

restrains an individual’s liberty that it renders him unable

to care for himself, and at the same time fails to provide for

his basic human needs — e.g., food, clothing, shelter, medical

care, and reasonable safety — it transgresses the substantive

limits on state action set by the Eighth Amendment and the Due

Process Clause.

DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs., 489 U.S. 189, 200

(1989) (emphasis added). Courts evaluate pretrial detainees’

conditions of confinement in state custody under the Due Process

Clause of the Fourteenth Amendment. See Bell v. Wolfish, 441 U.S.

520, 535 (1979). “The due process rights of a pretrial detainee

are at least as great as the [E]ighth [A]mendment protections

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available to the convicted prisoner.” Martin v. Gentile, 849 F.2d

863, 870 (4th Cir. 1988). “Thus, deliberate indifference to the

serious medical needs of a pretrial detainee violates the [D]ue

[P]rocess [C]lause.” Young v. City of Mount Ranier, 238 F.3d 567,

575 (4th Cir. 2001).

In other words, “even though [a pretrial detainee’s

deliberate-indifference] claim arises under the Fourteenth

Amendment, [courts] have traditionally looked to Eighth Amendment

precedents in considering a Fourteenth Amendment claim of

deliberate indifference to serious medical needs.” Mays v.

Sprinkle, 992 F.3d 295, 300 (4th Cir. 2021). The Eighth Amendment

requires that prison officials “provide humane conditions of

confinement,” which includes, among other things, “ensur[ing] that

inmates receive adequate . . . medical care,” Farmer v. Brennan,

511 U.S. 825, 832–33 (1994).

To make out a constitutional claim for deprivation of medical

care, a plaintiff must show that a defendant “acted with

‘deliberate indifference’ (subjective) to [the plaintiff’s]

‘serious medical needs’ (objective).” Iko v. Shreve, 535 F.3d 225,

241 (4th Cir. 2008). A medical need qualifies as serious if it “is

so obvious that even a lay person would easily recognize the

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

omitted). A defendant displays deliberate indifference when he

possesses knowledge of the risk of harm to an inmate and knows that

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“his actions were insufficient to mitigate the risk of harm to the

inmate arising from his medical needs.” Id. (emphasis and internal

quotation marks omitted); see also Scinto v. Stansberry, 841 F.3d

219, 225 (4th Cir. 2016) (“To prove deliberate indifference,

plaintiffs must show that ‘the official kn[ew] of and disregard[ed]

an excessive risk to inmate health or safety.’” (brackets in

original) (quoting Farmer, 511 U.S. at 837)).

“The subjective component .. . sets a particularly high bar

to recovery.” Iko, 535 F.3d at 241. In particular, “deliberate

indifference entails something more than mere negligence, .. .

[but] 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).

C. Liability Under Section 1983

“A state official can be liable in a § 1983 suit in three

ways: in his personal capacity, his official capacity, or in amore

limited way, his supervisory capacity.” King v. Rubenstein, 825

F.3d 206, 223 (4th Cir. 2016). As to personal liability, the

plaintiff must “show that the official, acting under color of state

law, caused the deprivation of a federal right.” Kentucky v.

Graham, 473 U.S. 159, 166 (1985). “As a general matter, a [state

actor] may incur [Section] 1983 liability only through affirmative

misconduct.” Randall v. Prince George’s Cnty., 302 F.3d 188, 202

(4th Cir. 2002) (quoting Parratt v. Taylor, 451 U.S. 527, 535–36

(1981)). “[Section] 1983 must be ‘read against the background of

tort liability that makes a man responsible for the natural

consequences of his actions.’” Vinnedge v. Gibbs, 550 F.2d 926,

928 (4th Cir. 1977) (quoting Monroe v. Pape, 365 U.S. 167, 187

(1961)). Accordingly, “it must be ‘affirmatively shown that the

official charged acted personally in the deprivation of the

plaintiff’s rights.’” Wright v. Collins, 766 F.2d 841, 850 (4th

Cir. 1985) (quoting Vinnedge, 550 F.2d at 928).

“Official-capacity suits, in contrast, generally represent

only another way of pleading an action against an entity of which

an officer is an agent.” Graham, 473 U.S. at 165 (internal

quotation marks omitted). “To state a[n official-capacity] cause

of action . . . a [S]ection 1983 plaintiff must plead (1) the

existence of an official policy or custom; (2) that the policy or

custom is fairly attributable to the municipality; and (3) that the

policy or custom proximately caused the deprivation of a

constitutional right.” Pettiford v. City of Greensboro, 556 F.

Supp. 2d 512, 530 (M.D.N.C. 2008).

As for supervisory liability, under Fourth Circuit authority,

a supervisor can be liable [under Section 1983] where (1) he

knew that his subordinate was engaged in conduct that posed a

pervasive and unreasonable risk of constitutional injury; (2)

his response showed deliberate indifference to or tacit

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authorization of the alleged offensive practices; and (3) []

there was an affirmative causal link between his inaction and

the constitutional injury.

King, 825 F.3d at 224 (internal quotation marks omitted). For the

first element, “[e]stablishing a pervasive and unreasonable risk of

harm requires evidence that the conduct is widespread, or at least

has been used on several different occasions and that the conduct

engaged in by the subordinate poses an unreasonable risk of harm of

constitutional injury.” Shaw v. Stroud, 13 F.3d 791, 799 (4th Cir.

1994) (internal quotation marks omitted). Relatedly, a plaintiff

ordinarily cannot satisfy the second element “by pointing to a

single incident or isolated incidents, for a supervisor cannot be

expected to promulgate rules and procedures covering every

conceivable occurrence within the area of his responsibilities.”

Slakan v. Porter, 737 F.2d 368, 373 (4th Cir. 1984) (internal

citation omitted). However, “[a] supervisor’s continued inaction

in the face of documented widespread abuses . . . provides an

independent basis for finding he either was deliberately

indifferent or acquiesced in the constitutionally offensive conduct

of his subordinates.” Id. And as for the third element, proof of

causation “may be direct . . . where the policy commands the injury

of which the plaintiff complains[,] [o]r the causal link may be

supplied by tort principle that holds a person liable for the

natural consequences of his actions.” Wellington v. Daniels, 717

F.2d 932, 936 (4th Cir. 1983).

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D. Kimbrough’s Summary Judgment Motion

Kimbrough has sought summary judgment on the grounds that he

responded reasonably (and thus necessarily without deliberate

indifference) to the risks posed by the COVID-19 pandemic. (See

generally Docket Entry 37 at 11-18 (highlighting how the Detention

Center implemented CDC Guidance with respect to sanitation and

education, operations, screening procedures, quarantining and

social distancing, personal protective equipment, and testing) □□

Alternatively, Kimbrough has contended that, if constitutional

violations occurred, qualified immunity shields him from liability.

(See id. at 18-21 (citing Ross v. Russell, No. 7:20cv000774, 2022

WL 767093 (W.D. Va. Mar. 14, 2022) (unpublished), and Tate v.

Arkansas Dep’t of Corr., No. 4:20CV558, 2020 WL 7378805 (E.D. Ark.

Nov. 9, 2020) (unpublished), recommendation adopted, 2020 WL

7367864 (E.D. Ark. Dec. 15, 2020) (unpublished)).) As already

noted, Plaintiff did not respond to Kimbrough’s arguments. (See

Docket Entries dated May 19, 2022, to present.)

Applying a liberal construction to the Complaint, the Court

may interpret Plaintiff’s allegations in one of two ways. First,

Plaintiff may allege that Kimbrough, through the FCLEDC, instituted

an express policy of denying inmates masks and testing. (See

Docket Entry 2 at 21 (use of term “refused” suggesting affirmative

denial of masks and testing).) Alternatively, Plaintiff may allege

that Kimbrough, through the FCLEDC, instituted a policy in response

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to COVID-19, but that the policy failed to include the provision of

masks and testing to inmates, and in that sense (by omission)

“refused [Plaintiff masks and testing . . . .” (Id.) Under either

formulation, the allegations do not create a triable issue of fact

as to whether Kimbrough acted with deliberate indifference.

E. Analysis

“In this case, the undisputed summary judgment record

establishes that [Kimbrough] responded to the COVID-19 pandemic by

putting in place measures designed to control the spread of

COVID-19 in the [FCLEDC].” Horton v. Holloway, No. 5:20-CV-05138,

2021 WL 7185222, at *13 (W.D. Ark. Dec. 1, 2021) (unpublished),

recommendation adopted, No. 5:20-CV-5138, 2022 WL 118418 (W.D. Ark.

Jan. 12, 2022) (unpublished). Plaintiff arrived at the FCLEDC on

or about April 9, 2020. (See Docket Entry 2 at 16; Docket Entry 38

at 1.) Prior to Plaintiff’s arrival, the record reflects that the

FCLEDC instituted several measures to respond to COVID-19,

including “designat[ing] areas within the facility to house inmates

suspected of having COVID-19” (Docket Entry 38 at 2), “screening

jail staff, [] medical staff [], custodians, or any other

contractors who entered the facility” (id.; see also Docket Entry

38-7 at 1) for elevated temperatures or symptoms of respiratory

illness, suspending “public visitation . . . with the exception of

attorney visits” (Docket Entry 38-7 at 1), and screening new

intakes for elevated temperatures or “signs of respiratory illness”

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(Docket Entry 38 at 2-3; see also Docket Entry 38-8 at 2). In the

days following Plaintiff’s arrival, the FCLEDC implemented further

measures, including “requir[ing staff] to wear a N95 mask in

addition to gowns, goggles, and gloves” (Docket Entry 38 at 4) if

interacting with a new intake who had COVID-19, and placing “hand

sanitizer . . . throughout the facility” (id.; see also Docket

Entry 38-14). By the end of April, the FCLEDC “required jail

staff, inmate workers, medical staff and any contract workers to

wear N95 masks if they were assigned to a new intake housing unit

. . . [and] required all jail staff, medical staff, inmate workers,

and contractors to wear surgical masks throughout the entire

facility when interacting with inmates.” (Docket Entry 38 at 4;

see also Docket Entry 38-15; Docket Entry 38-16).

Although an affidavit attached to the Summary Judgment Motion

avers that, “during this time[,] inmates were [also] given two

masks . . . [which t]hey could . . . exchange . . . out on a

nightly basis” (Docket Entry 38 at 4-5), the email announcing this

new policy (cited as support for the statement in the affidavit)

dates from October 2020, not April 2020 (see Docket Entry 38-31)

and apparently applied to new intakes, not the general inmate

population (see id.). The record also reflects that the FCLEDC

likely did not provide surgical masks to the general inmate

population until June 12, 2020, at the earliest. (See Docket Entry

38-20 (memorandum announcing “[t]emporary” and “new [p]rocedure” of

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“pass[ing] out surgical masks to all the current inmates/residents”

and “recommend[ing] . . . that the inmates/residents wear the masks

for the next fourteen days” (emphasis added)). The record

indicates that the FCLEDC established this new and temporary policy

as a response to “5 staff members [who] tested positive for the

[corona]virus” on June 12. (Docket Entry 38 at 2; see also Docket

Entry 38-20).) Accordingly, construing the facts in a light most

favorable to the Plaintiff (as the Court must a this juncture), the

record does not establish that the FCLEDC provided masks to the

general inmate population (except inmate workers, see Docket Entry

38-15; Docket Entry 38-16) prior to June 12, 2020.

Nonetheless, June 12 represented the first occasion on which

anyone associated with the FCLEDC, staff or inmates, tested

positive for COVID-19. (See Docket Entry 38 at 2; Docket Entry 38-

1 at 1.) That fact, uncontroverted by any allegations in the

Complaint (much less competent evidence), must therefore establish

the starting date for Plaintiff’s claim that Kimbrough denied

Plaintiff “masks and testing . . . for more than [two-and-a-half]

months while 11 officers tested positive” for COVID. (Docket Entry

2 at 21 (emphasis added).) This conclusion finds further support

in the fact that Plaintiff filed his Complaint on August 26, 2020

(see id. at 1 (filing stamp reflecting August 26, 2020, filing

date)), two-and-a-half months after June 12.

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As such, the record as developed through discovery contradicts

Plaintiff’s allegation that Kimbrough “refused [Plaintiff] masks .

. . while” (id. at 21 (emphasis added)) staff at the FCLEDC tested

positive for COVID-19. Rather, on the same day that five staff

tested positive for COVID-19, the FCLEDC “passed out surgical masks

to all the current inmates/residents.” (Docket Entry 38-20.)

Plaintiff’s unverified allegation to the contrary does not suffice

for purposes of summary judgment. See Custer, 12 F.3d at 416.

Kimbrough has therefore established the lack of a genuine issue of

material fact as to whether he, by means of FCLEDC policy “refused

[Plaintiff] masks . . . for COVID for more than [two-and-a-half]

months while 11 officers tested positive” for COVID-19. (Docket

Entry 2 at 21.) Under the circumstances, no reasonable fact-finder

could attribute deliberate indifference to Kimbrough in his

personal, official, or supervisory capacities as to the mask-aspect

of any deliberate indifference claim.

Plaintiff’s unverified allegation regarding testing fares no

better. As noted above, because Plaintiff arrived at the FCLEDC on

or about April 9, 2020 (see Docket Entry 38 at 1; Docket Entry 2 at

16), the first FCLEDC staff tested positive for COVID-19 on June

12, 2020 (Docket Entry 38 at 2; see also Docket Entry 38-20), and

Plaintiff filed his Complaint on August 26, 2020 (Docket Entry 2 at

1), the two-and-a-half month period underlying Plaintiff’s

allegations must span from approximately June 12 to August 26,

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2020. But the record reflects that, on June 25, 2020, “the FCLEDC

arranged for a [mandatory] mass [COVID-19] testing event for all

inmates and staff.” (Docket Entry 38 at 6; see also Docket Entry

38-21 at 1.) This testing event spanned several days, and although

four additional staff tested positive for COVID-19, no inmates

returned positive results. (See Docket Entry 41 at 1-2.) The

record reflects that Plaintiff received a COVID-19 test during this

event. (See id. at 2; see also Docket Entry 41-1.) The record

also reflects that Plaintiff received an additional COVID-19 test

on August 7, 2020 (see Docket Entry 41-2), and again tested

negative for COVID-19 (see id.). In fact, in a grievance form

Plaintiff submitted to the FCLEDC on August 10, 2020, and attached

to his Complaint, Plaintiff references this August 7 COVID-19 test.

(Docket Entry 2-1 at 2 (stating that, after placement in quarantine

due to possible COVID-19 exposure, FCLEDC staff treated Plaintiff

“as if [he is] positive for Covid, when [his t]est results were

negative!”).)

Accordingly, the record as developed through discovery

contradicts Plaintiff’s allegation that Kimbrough “refused

[Plaintiff] . . . testing . . . for more than [two-and-a-half]

months while” (Docket Entry 2 at 21 (emphasis added)) staff at the

FCLEDC tested positive for COVID-19. On the contrary, Plaintiff

received his first COVID test just two weeks after the first staff

at the FCLEDC tested positive for COVID-19. (See Docket Entry 41-

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1; see also Docket Entry 38 at 6; Docket Entry 38-21 at 1.)

Plaintiff received a subsequent COVID-19 test six weeks later (see

Docket Entry 41-2), which (like the first) returned a negative

result. Plaintiff’s unverified allegation to the contrary does not

suffice for purposes of summary judgment. See Custer, 12 F.3d at

416. Kimbrough has therefore established the lack of a genuine

issue of material fact as to whether he, by means of FCLEDC policy,

“refused [Plaintiff] . . . testing for COVID for more than [two-

and-a-half] months while 11 officers tested positive” for COVID-19.

(Docket Entry 2 at 21.) No reasonable fact-finder could attribute

deliberate indifference to Kimbrough in his personal, official, or

supervisory capacities as to the testing-aspect of any deliberate

indifference claim.3

CONCLUSION

Because the record lacks evidence from which a reasonable

fact-finder could conclude that Kimbrough exhibited deliberate

indifference to Plaintiff’s serious medical needs, Kimbrough has

shown entitlement to judgment as a matter of law.

3 Given that proposed resolution, the Court need not reach

qualified immunity as an alternative basis for granting judgment

for Kimbrough. See Brooks v. Johnson, 924 F.3d 104, 119 n.6 (4th

Cir. 2019) (“recogniz[ing] the ‘special problem’ raised when the

objective qualified immunity standard is applied to an Eighth

Amendment violation that requires wrongful intent in the form of

‘deliberate indifference’” (quoting Rish v. Johnson, 131 F.3d 1092,

1098 n.6 (4th Cir. 1997))).

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IT IS THEREFORE RECOMMENDED that the Summary Judgment Motion

(Docket Entry 36) be granted.

This day of January, 2023.

10th

/s/ L. Patrick Auld

L. Patrick Auld

United States Magistrate Judge

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