# HARRINGTON v. SOUTHERN HEALTH PARTNERS, INC.

> District Court, M.D. North Carolina · September 1, 2022

URL: https://www.frixlaw.com/law-library/cases/10254276

## Case

- **Court:** District Court, M.D. North Carolina
- **Decided:** September 1, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

KATHY BYRD HARRINGTON as )
Administrator of the Estate of WESLEY )
RANDOLPH HUNTER, deceased, )
)
Plaintiff, ) 1:21CV744
)
v. )
)
SOUTHERN HEALTH PARTNERS, )
INC., KELLY CARLTON, KAREN )
RUSSELL, JASON AUTEN, in his )
individual capacity, A. M. PRICE, in his
individual capacity, MICHAEL ROGERS,
in his individual capacity, CABARRUS
COUNTY SHERIFF'S DEPARTMENT,
and CABARRUS COUNTY,

Defendants.

MEMORANDUM OPINION AND ORDER
LORETTA C. BIGGS, District Judge.
Wesley Randolph Hunter died in his cell at Cabarrus County Jail on August 21, 2020.
Hunter’s mother, Kathy Byrd Harrington (“Plaintiff”), as administrator of Hunter’s estate,
brings this action against: Southern Health Partners, Inc., a corporation that contracts with
Cabarrus County to provide health services at its jail; Kelly Carlton, a licensed nurse employed
by Southern Health Partners; Karen Russell, a physician’s assistant employed by Southern
Health Partners; Jason Auten, A.M. Price, and Michael Rogers, all employees of the Cabarrus
County Sheriff’s Department; the Cabarrus County Sheriff’s Department; and Cabarrus
County. Plaintiff alleges violations of 42 U.S.C. § 1983, as well as North Carolina state law
claims for medical negligence, wrongful death, and punitive damages. (ECF No. 6.)
Two motions are before the Court. Defendants Jason Auten, A.M. Price, Michael
Rogers, Cabarrus County Sheriff’s Department, and Cabarrus County bring a Partial Motion
to Dismiss pursuant to Fed. R. Civ. P. 12(b)(6). (ECF No. 16.) Defendants Southern Health
Partners, Inc. and Karen Russell also bring a Motion to Dismiss pursuant to Fed. R. Civ. P.
12(b)(6). (ECF No. 24.) For the reasons stated herein, both motions will be granted.

I. BACKGROUND
On August 12, 2020, Wesley Hunter was placed into the Cabarrus County Jail on drug-
related charges. (ECF No. 6 ¶ 20.) According to the Complaint, during Hunter’s intake into
the jail, he disclosed that he had been exposed to COVID-19. (Id. ¶ 21.) As a result, Hunter
was placed in medical isolation. (Id.) Hunter also disclosed to the jail staff that he suffered
from an opioid addiction and was experiencing withdrawal symptoms, including vomiting and

diarrhea. (Id. ¶ 22.) Around the days of August 14, 15, 16, and 17, 2020, Hunter reported
multiple episodes of vomiting and diarrhea. (Id. ¶ 24.)
At around 8:30 a.m. on August 20, 2020, Hunter complained of dizziness and was
helped to a chair by unidentified employees of the Cabarrus County Sheriff’s Department. (Id.
¶ 25.) Later that day around 7:00 p.m., Hunter passed out in the shower, which resulted to a
laceration to his chin. (Id. ¶ 26.) Defendant Nurse Kelly Carlton1 (“Nurse Carlton”) came to

examine Hunter. (Id.) With the help of unidentified Sheriff’s Department employees, Nurse
Carlton requested Hunter be moved outside the shower. (Id. ¶ 27.) Nurse Carlton
administered an ammonia tablet and directed Hunter be returned to his cell. (Id. ¶ 28.)

1 Nurse Carlton is a licensed practical nurse employed by Defendant Southern Health Partners, Inc.
The following day, August 21, 2020, at around 8:35 a.m., an unidentified Sheriff’s
Department employee requested a medical check on Hunter, who was allegedly experiencing
a seizure. (Id. ¶ 30.) When Hunter came out of the seizure, he told Nurse Carlton that he was
experiencing a headache. (Id.) Nurse Carlton evaluated Hunter and did not consult with a
physician. (Id.)

Around an hour later, another medical request was made by an unidentified Sheriff’s
Department employee after Hunter indicated he was having difficulty sitting up. (Id. ¶ 31.)
Nurse Carlton examined Hunter another time then instructed him to drink plenty of water to
avoid dehydration. (Id. ¶ 32.) Hunter told Nurse Carlton and unidentified Sheriff’s
Department employees that he was unable to get water without passing out. (Id.) Unidentified
Sheriff’s Department employees gave Hunter a cup of water; no other treatment or monitoring

was ordered. (Id.)
That same day, around 3:00 p.m., Defendant Michael Rogers, a Sheriff’s Department
jailer, saw Hunter slumped over, not breathing, with bodily fluids around him on the floor.
(Id. ¶¶ 33–34.) Rogers called for assistance, and Defendant A.M. Price, another Sheriff’s
Department jailer, responded. (Id. ¶ 34.) Price retrieved his medical bag, and Nurse Carlton
was called to the jail cell, where she found Hunter deceased. (Id. ¶¶ 34–35.) Hunter allegedly

died from internal bleeding from a laceration in the gastroesophageal junction. (Id. ¶ 36.)
Plaintiff Kathy Harrington, Hunter’s mother and administrator of his estate, initiated
this action on August 18, 2021, in state court, and Defendants removed to federal court on
September 24, 2021. (ECF No. 1.) In Count 1, Plaintiff alleges a claim under 42 U.S.C. § 1983
against Defendants Cabarrus County Sheriff’s Department and Cabarrus County. (ECF No.

6 ¶¶ 37–44.) In Count 2, Plaintiff alleges a claim under 42 U.S.C. § 1983 against Defendant
Southern Health Partners, Inc. (Id. ¶¶ 45–51.) In Count 3, Plaintiff alleges state law negligence
claims against all Defendants.2 (Id. ¶¶ 52–66.) Finally, in Count 4, Plaintiff seeks punitive
damages against all Defendants. (Id. ¶¶ 67–70.)
In the Partial Motion to Dismiss, (ECF No. 16), Defendants Auten, Price, and Rogers
seek to dismiss the state law negligence claims brought against them in their individual

capacities, while Defendants Cabarrus County Sheriff’s Department and Cabarrus County
seek to dismiss the § 1983 claim against them. Also, in a Motion to Dismiss, (ECF No. 24),
Defendant Southern Health Partners seeks only to dismiss the § 1983 claim against it which
rests on a vicarious liability theory, including any related punitive damages claim, and
Defendant Karen Russell seeks to dismiss all claims against her. The Court will address each
motion in turn.

II. STANDARD OF REVIEW
A motion to dismiss under Rule 12(b)(6) is meant to “test[] the sufficiency of a
complaint” and not to “resolve contests surrounding the facts, the merits of a claim, or the
applicability of defenses.” Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992).
To survive such a motion, “a complaint must contain sufficient factual matter, accepted as
true, 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)). In considering a Rule
12(b)(6) motion, a court “must accept as true all of the factual allegations contained in the
complaint,” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam), and all reasonable

2 The complete list of Defendants is as follows: Southern Health Partners, Inc.; Kelly Carlton, a nurse
employed by Southern Health Partners; Karen Russell, a physician’s assistant employed by Southern
inferences must be drawn in the non-moving party’s favor, Ibarra v. United States, 120 F.3d 472,
474 (4th Cir. 1997).
III. PARTIAL MOTION TO DISMISS, (ECF NO. 16)
A. Individual Defendants
Defendants Jason Auten, A.M. Price, Michael Rogers (“Individual Defendants”) seek
to dismiss Plaintiff’s state law claims of negligence against them. (ECF No. 17 at 4.) Individual

Defendants assert that they are protected by public official immunity under North Carolina
law. (Id. at 4–5.)
In North Carolina, public officials “engaged in the performance of governmental duties
involving the exercise of judgment and discretion” enjoy immunity from personal liability.3
Meyer v. Walls, 489 S.E.2d 880, 888 (N.C. 1997) (quoting Smith v. Hefner, 68 S.E.2d 783, 787
(N.C. 1952)). However, public official immunity may be overcome if it is proven that an

officer’s conduct was “(1) corrupt; (2) malicious; (3) outside of and beyond the scope of his
duties; (4) in bad faith; or (5) willful and deliberate.” Smith v. Jackson Cnty. Bd. of Educ., 608
S.E.2d 399, 411 (N.C. Ct. App. 2005) (quoting Reid v. Roberts, 435 S.E.2d 116, 119 (N.C. Ct.
App. 1993)). “An officer acts with malice when he ‘does that which [an officer] of reasonable
intelligence would know to be contrary to his duty.’” Cooper v. Sheehan, 735 F.3d 153, 160 (4th
Cir. 2013) (quoting Bailey v. Kennedy, 349 F.3d 731, 742 (4th Cir. 2003)). Thus, “[p]ublic official

immunity ‘is unavailable to officers who violate clearly established rights.’” Hensley ex rel. North
Carolina v. Price, 876 F.3d 573, 587 (4th Cir. 2017) (quoting Bailey, 349 F.3d at 742).

3 Sheriffs and their deputies are considered “public officers” for the purposes of public official
immunity. See Messick v. Catawba County, 431 S.E.2d 489, 496 (N.C. Ct. App. 1993); see also Baker v.
Smith, 737 S.E.2d 144, 151–52 (N.C. Ct. App. 2012) (“[W]e hold that assistant jailers are public officials
As to Defendant Auten, Plaintiff’s Complaint makes no specific mention of him other
than where he appears in the caption and where Plaintiff states that Auten is employed by the
Cabarrus County Sheriff’s Department. (ECF No. 6 ¶ 6.) Plaintiff offers no factual allegations
implicating Auten in the care of Hunter at Cabarrus County Jail, nor is it clear from the
Complaint if Auten was ever present at the jail at all. Notably, Plaintiff’s Memorandum in

Opposition to Individual and County Defendants’ Partial Motion to Dismiss does not address
Auten’s claim of public official immunity at all. (ECF No. 21 at 5–7.) Accordingly, Plaintiff
has not alleged sufficient facts to demonstrate that Auten was involved in the events related
to Hunter at all, let alone that he acted corruptly, maliciously, in bad faith, or in a way that was
willfully and deliberately insufficient. For this reason, all claims against Defendant Auten will
be dismissed.

As for Defendants Rogers and Price, both were present at the Cabarrus County Jail on
the day of Hunter’s death. (ECF No. 6 ¶ 33–34.) However, Plaintiff’s Complaint provides
few facts about their alleged misconduct. The single mention of Rogers concerns the instance
where he observed Hunter unconscious in his cell and called for assistance. (Id. ¶ 33.) And
the only mention of Price is where he was summoned for help by Rogers, and then went to
retrieve a medical bag. (Id. ¶ 34.) It appears that either Price or Rogers summoned Nurse

Carlton at this time too. (Id. ¶ 34–35.) Again, Plaintiff’s Complaint has failed to allege facts
that Rogers or Price acted outside the scope of their duties or in a way that was corrupt,
malicious, in bad faith, or willfully and deliberately insufficient.
In her Memorandum in Opposition to this motion, Plaintiff argues that “Rogers and
Price’s outright failure to call for medical help in what was clearly a medical emergency, was

so reckless and manifestly indifferent to Hunter’s open and obvious serious and life-
threatening medical needs, that a finding of willfulness and wantonness is justified.” (ECF
No. 21 at 7.) Plaintiff’s main contention is that Rogers and Price’s decision not to call a
physician specifically amounted to deliberate indifference to Hunter’s condition, and that they
“should have known that their actions regarding Hunter were wanton, done to injure Plaintiff
and/or were contrary to their duty to Plaintiff when they failed to provide an appropriate

medical response.” (Id. at 6.) Interestingly, this was not alleged in the Complaint and the
Court cannot regard it as such. (ECF No. 6.)
Further, it is difficult to find any factual allegations in Plaintiff’s Complaint that support
Plaintiff’s contention of wantonness. (Id. ¶ 33–34); see also Meyer, 489 S.E.2d at 890 (“[A]
conclusory allegation that a public official acted willfully and wantonly should not be sufficient,
by itself, to withstand a Rule 12(b)(6) motion to dismiss.”). Rather, Plaintiff asserts that Rogers

did make a call for assistance, Price responded and retrieved a medical bag, and at some point,
Nurse Carlton was also summoned. (ECF No. 6 ¶¶ 33–35.) Plaintiff does not allege in her
Complaint any facts showing Rogers or Price acted maliciously, corruptly, outside the scope
of their official authority, in bad faith, or willfully and deliberately insufficient. Thus, Plaintiff
has failed to allege any set of factual allegations sufficient to demonstrate that these
Defendants are not entitled to public official immunity. Accordingly, Plaintiff’s claims of

negligence against Defendants Roger and Price will likewise be dismissed.
B. County Defendants
Defendants Cabarrus County Sheriff’s Department and Cabarrus County (“County
Defendants”) only seek to dismiss the federal § 1983 claim against them.4
Municipal liability under § 1983 “is limited to action for which the municipality is
actually responsible.” See Pembaur v. City of Cincinnati, 475 U.S. 469, 479 (1986). In other words,
“a municipality cannot be held liable solely because it employs a tortfeasor.” Monell v. Dep’t of
Soc. Servs., 436 U.S. 658, 691 (1978); see also Bd. of the Cnty. Comm’rs of Bryan Cnty. v. Brown, 520
U.S. 397, 405 (1997). Rather, in order to be held liable, the municipality itself must have

generated the “moving force” behind the alleged constitutional violation, either through
official policy or widespread and pervasive custom. See City of Canton v. Harris, 489 U.S. 378,
388–89 (1989).
In Lytle v. Doyle, 326 F.3d 463 (4th Cir. 2003), the Fourth Circuit explained that “[a]
policy or custom for which a municipality may be held liable can arise in four ways”:
(1) through an express policy, such as a written ordinance or regulation;

(2) through the decisions of a person with final policymaking authority;
(3) through an omission, such as a failure to properly train officers, that
“manifest[s] deliberate indifference to the rights of citizens”; or
(4) through a practice that is so “persistent and widespread” as to constitute
a “custom or usage with the force of law.”
Id. at 471 (quoting Carter v. Morris, 164 F.3d 215, 217 (4th Cir. 1999)). County
Defendants contend that the Complaint fails to properly allege municipal liability under any
of these theories. (See ECF No. 17 at 8.) This Court will evaluate each theory in turn.
First, Plaintiff does not reference a single written policy of Cabarrus County Sherriff’s
Department or Cabarrus County in her Complaint. Thus, Plaintiff has not sufficiently pleaded
municipal liability under an express-policy theory.
Second, even absent an express written policy, the decisions of a final policymaker can
still lead to municipal liability. See Pembaur, 475 U.S. at 480–81. Importantly, “not every
v. Sch. Bd. of Portsmouth, 238 F.3d 518, 523 (4th Cir. 2000). “Rather, ‘[m]unicipal liability attaches
only where the decisionmaker possesses final authority to establish municipal policy with
respect to the action ordered.’” Id. (quoting Pembaur, 475 U.S. at 481) (emphasis added). That
is because only final policymakers’ “edicts or acts may fairly be said to represent official
policy.” See id. (quoting Monell, 436 U.S. at 694).

Here, Plaintiff makes no reference to the decision of a final policymaker at either the
Cabarrus County Sherriff’s Department or Cabarrus County itself. The Complaint contains
no allegation of any specific, affirmative policy decisions. Accordingly, the Court finds that
Plaintiffs have failed to plead facts with the requisite specificity to support municipal liability
under a final-policymaker theory.
Third, the Court will address municipal liability on a failure-to-train theory. “A

municipality’s culpability for a deprivation of rights is at its most tenuous where a claim turns
on a failure to train.” Connick v. Thompson, 563 U.S. 51, 61 (2011). Allegations of mere
negligence are insufficient; “only where the failure to train amounts to deliberate indifference to
the rights of persons with whom the police come into contact” does municipal liability arise.
City of Canton, 489 U.S. at 388 (emphasis added); see also Jordan ex rel. Jordan v. Jackson, 15 F.3d
333, 341 (4th Cir. 1994). Further, “[t]hat a particular officer may be unsatisfactorily trained

will not alone suffice to fasten liability on the [municipality], for the officer’s shortcomings
may have resulted from factors other than a faulty training program.” City of Canton, 489 U.S.
at 390–91. Instead, a plaintiff must allege facts demonstrating that the failure to train “was
the result of an affirmative, conscious decision” made with indifference towards a “plainly
obvious” potential for constitutional injury. See Doe v. Broderick, 225 F.3d 440, 456 (4th Cir.

2000) (quoting City of Canton, 489 U.S. at 390 n.10).
When a plaintiff asserts a claim based on inadequate training, the “complaint should
contain facts revealing: (1) the nature of the training, (2) that the training was a ‘deliberate or
conscious’ choice by the municipality, and (3) that the officer’s conduct resulted from said
training.” Peters v. City of Mount Rainier, No. 14-00955, 2014 WL 4855032, at *5 (D. Md. Sept.
29, 2014) (quoting Lewis v. Simms, No. 11-2172, 2012 WL 254024, at *3 (D. Md. Jan. 26, 2012));

see also, e.g., Cobbs ex rel. Cobbs v. County of Guilford, No. 10CV806, 2012 WL 3113141, at *4
(M.D.N.C. July 31, 2012), adopted as modified, 2012 WL 4508106 (M.D.N.C. Sept. 28, 2012).
Plaintiff has not alleged any of these necessary factors. (ECF No. 6 ¶¶ 37–44.) The
closest Plaintiff gets to alleging a failure to train is the allegation that the “Cabarrus County
Sheriff’s Department and/or its employees or agents knew or should have known that taking
no action and/or insufficient action could result in the rapid and permanent deterioration of

Hunter’s health and even his death.” (Id. ¶ 43.) However, even this contention does not
explicitly mention a failure to train officers on how to respond to inmates’ health needs. The
only mention of the word “training” in the entire Complaint appears regarding Plaintiff’s
negligence claims against Defendants Russell and Carlton (both healthcare providers). (Id. ¶¶
62–63.) In sum, the Complaint does not contain sufficient factual allegations supporting each
element of a failure-to-train claim.

The final way in which municipal liability may arise is through “a practice [which],”
despite having no formal authorization, “is so persistent and widespread and so permanent
and well settled as to constitute a custom or usage with the force of law.” Lytle, 326 F.3d at
473 (quoting Carter, 164 F.3d at 218). To succeed under this theory, a plaintiff must show (1)
that the municipality had “‘actual or constructive knowledge’ of the custom and usage,” and

(2) that, either with “specific intent or deliberate indifference,” its policymakers failed to
“correct or terminate the improper custom and usage.” Randall v. Prince George’s County, 302
F.3d 188, 210 (4th Cir. 2002) (quoting Spell v. McDaniel, 824 F.2d 1380, 1391 (4th Cir. 1987)).
Constructive knowledge of such a custom “may be inferred from the widespread extent of the
practices, general knowledge of their existence, manifest opportunities and official duty of
responsible policymakers to be informed, or combinations of these.” Spell, 824 F.2d at 1391.

Plaintiff’s Complaint makes no references to any specific custom or practice of the
Cabarrus County Sheriff’s Department or Cabarrus County. Plaintiff’s claims against both
County Defendants amount to claims of vicarious liability or respondeat superior. (ECF No. 6
¶¶ 39–43.) Accordingly, this warrants dismissal of all § 1983 claims against County Defendants
because a “a municipality cannot be held liable under § 1983 on a respondeat superior theory.”
Monell, 436 U.S. at 691.

For the foregoing reasons, the Court will therefore grant County Defendants’ motion
to dismiss the § 1983 claims against them.
IV. MOTION TO DISMISS, (ECF NO. 24)
A. Southern Health Partners, Inc.
Defendant Southern Health Partners, Inc. seeks to dismiss only part of the federal
§ 1983 claim against it. Specifically, Southern Health Partners only moves for dismissal on
Plaintiff’s § 1983 claim premised upon the failure to provide medical care and treatment under

a respondeat superior theory.5 (ECF Nos. 25 at 4–5; 30 at 2–3.) Additionally, Southern Health
Partners seeks to dismiss Plaintiff’s claim for punitive damages. (ECF No. 25 at 5–6.)

5 As outlined in its reply brief, Southern Health Partners does not seek to dismiss Plaintiff’s § 1983
claim in its entirety; rather, “[Southern Health Partners] seeks to dismiss Plaintiff’s claim under § 1983
Because Southern Health Partners does not challenge that Plaintiff may have a viable
claim under one of the theories of municipal liability outlined above, supra Section III.B, the
Court need only address whether Plaintiff’s § 1983 claim premised upon the failure to provide
medical care and treatment can survive a motion to dismiss.
Plaintiff argues in part that Southern Health Partners should be subject to § 1983

liability because “SHP was deliberately indifferent to those serious medical needs in failing to
provide the necessary care and treatment of Hunter,” (ECF No. 6 ¶ 48), and “SHP and/or its
employees or agents knew or should have known that taking no action and/or insufficient
action could result in the rapid and permanent deterioration of Hunter’s health and even his
death,” (id. ¶ 49). Defendant Southern Health Partners contends that these assertions do
nothing more than make respondeat superior-type claims which impose liability for the acts of its

employees. (ECF No. 25 at 5–6.)
It is well-established that the requirements of Monell are “equally applicable to the
liability of private corporations” acting under the color of state law. See Powell v. Shopco Laurel
Co., 678 F.2d 504, 506 (4th Cir. 1982); see also, e.g., Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1139
(9th Cir. 2012) (“[W]e see no basis in the reasoning underlying Monell to distinguish between
municipalities and private entities acting under color of state law.”). As earlier discussed,

Cabarrus County contracts with Southern Health Partners to provide health services to
inmates at the Cabarrus County jail. Such private parties have been found to be acting under
color of state law for purposes of § 1983 when fulfilling an obligation or responsibility of the
state or, in this case, the county. West v. Atkins, 487 U.S. 42, 54–56(1988).
As made clear by the Supreme Court in Monell, “a municipality cannot be held liable

under § 1983 on a respondeat superior theory.” 436 U.S. at 691. Put differently, it is impermissible
to hold a municipality liable “for the actions of subordinate officials.” Starbuck v. Williamsburg
James City Cnty. Sch. Bd., 28 F.4th 529, 534 (4th Cir. 2022). However, municipal liability can be
proper where a Plaintiff seeks to hold the municipality liable for “its own decision to uphold the
actions of subordinates.” Id.
Here, Plaintiff’s § 1983 claim seeking to impose liability on Southern Health Partners

appears to be, at least in part, based on the actions of Southern Health Partners’ employees.
Plaintiff alleges misconduct for the acts of Southern Health Partner employees, asserting that
they knew of Hunter’s medical issues and were deliberately indifferent to those needs, and that
they should have known taking no action could result in his death. (ECF No. 6 ¶¶ 47–49.)
Neither of these contentions point to a decision of Southern Health Partners itself to uphold
the actions of subordinates. Accordingly, to the extent that Plaintiff’s § 1983 claim against

Southern Health Partners is premised upon respondeat superior liability, the claim must and will
be dismissed. This Court withholds any judgment on whether the Plaintiff has sufficiently
alleged a viable claim for municipal liability under any of the four theories outlined in Lytle v.
Doyle and described in Section III.B.
Concerning Plaintiff’s punitive damages claim against Southern Health Partners, it is
unclear from the face of the Complaint whether Plaintiff seeks punitive damages under federal

or state law. (ECF No. 6 ¶¶ 67–70.) However, it can be inferred from the language used by
Plaintiff, as well as her argument in the Memorandum in Opposition, (ECF No. 27), that
Plaintiff’s punitive damages claim is made under N.C. Gen. Stat. § 1D-15.
Under N.C. Gen. Stat. § 1D-15(a), punitive damages are appropriate (1) “if the claimant
proves that the defendant is liable for compensatory damages” and (2) that either fraud, malice,

or willful or wanton conduct was present “related to the injury for which compensatory
damages were awarded.” Further, under § 1D-15(c), punitive damages are not permitted when
awarded “solely on the basis of vicarious liability for the acts or omissions of another.” In the
case of a corporation, punitive damages are appropriate “only if . . . the officers, directors, or
managers of the corporation participated in or condoned the conduct constituting the
aggravating factor giving rise to punitive damages.” N.C. Gen. Stat. § 1D-15(c).

In Count 4 of the Complaint, Plaintiff alleges that the “officers, directors, or managers
of [Southern Health Partners] . . . participated in or condoned the conduct constituting the
aggravating factor giving rise to punitive damages in that similar acts of reckless indifference
have incurred not only in other prisons and jails across the country, but actually in the Cabarrus
County jail.” (ECF No. 6 ¶ 69.) Even accepting all allegations laid out in the Complaint as
true, Plaintiff has not alleged sufficient facts to show willful or wanton conduct on behalf of

the officers, directors, or managers of Southern Health Partners. There is a dearth of factual
allegations in the Complaint showing that a corporate officer, manager, or supervisor
participated in or condoned any of the conduct of its employees at the Cabarrus County Jail.
“[M]ere conclusory and speculative allegations” are insufficient to withstand dismissal.
Painter’s Mill Grille, LLC v. Brown, 716 F.3d 342, 350 (4th Cir. 2013). Similar to the § 1983
claim discussed above, Plaintiff’s punitive damages claim against Southern Health Partners

rests on a respondeat superior theory for the acts of employees like Nurse Carlton. (ECF No. 6
¶¶ 47, 49; ECF No. 27 at 9.)
Indeed, the only Southern Health Partners employee that the Complaint explicitly
alleges as exercising decision-making authority related to Hunter’s medical care and as present
throughout the events leading up to Hunter’s death is Nurse Carlton—the only defendant

who is not seeking dismissal of any of Plaintiff’s claims. Accordingly, Plaintiff’s Complaint
has not on its face stated a plausible claim for punitive damages against Southern Health
Partners. This claim must and will be dismissed.
B. Karen Russell
Defendant Russell seeks to dismiss all claims against her. (ECF No. 25 at 9.) Russell
argues that Plaintiff’s claims do not contain any factual allegations implicating Russell that are

sufficient to raise a right to relief. (Id. at 9–10.)
With respect to Plaintiff’s claims against Russell, the Complaint is less than a model of
clarity. It can be difficult, in places, to discern whether certain claims directed at all
“Defendants” generally are meant to include allegations against just the healthcare providers
employed by Southern Health Partners, just the employees of the Cabarrus County Sheriff’s
Department, or both. Nevertheless, when the various counts are read against the backdrop

of the Complaint’s factual allegations, there are two potential claims against Russell. Count 3
alleges a negligence claim, which sounds in medical malpractice under North Carolina law, (id.
¶¶ 52–65), and Count 4 alleges a claim for punitive damages, (id. ¶¶ 67–70).
As was the case with Defendant Auten above, it is unclear from Plaintiff’s Complaint
whether Russell was ever present at the Cabarrus County Jail, and whether she had any role at
all in the events described in the Complaint. Russell is mentioned by name in three places in

the Complaint: once in the caption, once where Plaintiff identifies Russell as a physician’s
assistant employed by Southern Health Partners, (id. ¶ 4), and once where she is identified as
a health care provider who owed a duty to Hunter, (id. ¶ 62). In the Complaint, Plaintiff’s
state law claim for medical negligence is made against all Defendants collectively. (Id. ¶¶ 53–
66.) However, Plaintiff does not make any allegations supporting a medical malpractice claim
against Russell. Rather, Plaintiff recites the generally applicable standard of care and concludes
that all Defendants breached their duties to Hunter. There are no factual allegations contained
within the Complaint that include Russell or that assert any conduct by Russell regarding the
care provided to Hunter at Cabarrus County Jail.
The same can be said regarding Plaintiff’s punitive damages claim against Russell. In
the Complaint, Plaintiff’s claim for punitive damages is made against all Defendants

collectively. (Id. ¶¶ 67–70.) Plaintiff does not make any factual allegations supporting an award
for compensatory, let alone punitive damages, against Russell. Accordingly, all claims against
Russell must and will be dismissed.
For the reasons stated herein, the Court enters the following:
ORDER
IT IS THEREFORE ORDERED that Defendants’ Partial Motion to Dismiss, (ECF

No. 16), is GRANTED as to all Defendants joined in the motion; and there being no claims
remaining as to Individual Defendants Jason Auten, A.M. Price, and Michael Rogers, they are
hereby dismissed from this lawsuit.
IT IS FURTHER ORDERED that Defendants’ Motion to Dismiss, (ECF No. 24), is
GRANTED as to each Defendant joined in the motion; and there being no claim remaining
against Defendant Karen Russell, she is hereby dismissed from this lawsuit.

This, the 1st day of September 2022.
/s/ Loretta C. Biggs
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10254276. Public record. Not legal advice.