LOWERY v. FORSYTH COUNTY SHERIFF'S DEPARTMENT

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

KENYANA LOWERY, )

Plaintiff,

v. 1:21CV85

FORSYTH COUNTY SHERIFP’S,

DEPARTMENT et al., )

Defendants.

ORDER, MEMORANDUM OPINION AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

This matter is before the Court on several motions: Defendants Bobby FP. Kimbrough,

Jt. (Sheriff Kimbrough”), Rocky Joyner, B. Warren, C. Warren, L. Ferguson, and C. Whitt’s

Motion to Dismiss (Docket Entry 29); Defendant WellPath Health Care’s (‘“WellPath’)

Motion to Dismiss (Docket Entry 33); Defendant B. Williams’s Motion to Dismiss (Docket

Entry 36); Defendant Judy Lilley’s Motion to Dismiss (Docket Entry 39); and Plaintiff

Kenyana Lowery’s Motion for an Initial Pretrial Order and Final Judgment. (Docket Entry

43.) Plaintiff has filed a response to the motions to dismiss. (See Docket Entries 42, 44.) For

the reasons stated below, the Court will deny Plaintiffs motion and recommend that

Defendants’ motions be granted.

I. BACKGROUND

Plaintiff proceeding pro se, initiated this action pursuant to 42 U.S.C. § 1983 in January

2021 alleging constitutional violations against several named Defendants based on events

occutting at the Forsyth County Law Enforcement Detention Center (““FLEDC”) in Winston

Salem, North Carolina, where he was held as a prettial detainee. (See Complaint, Docket Entry

2 at 7, 13.)! Defendants named in Plaintiffs Complaint ate the Forsyth County Sheriffs

Department, the FCLEDC, WellPath, Sheriff Kimbrough, HiG Capital Equity Firm, Chief

Deputy Rocky Joyner, Captain B. Warren, Captain C. Warren, Lieutenant L. Ferguson,

Lieutenant C. Whitt, Lieutenant R. Joyce, WellPath Director B. Williams, and WellPath Vice

President Judy Lilley, each sued in both their individual and official capacities. (Id. at 3-6.)

Specifically, Plaintiff alleges that he has been incarcerated at the FCLEDC since January

17, 2019. (Id. at 13.) On June 29, 2020, Plaintiff was tested for COVID-19, and on June 30,

2020, that test came back negative. (Id.) According to Plaintiff, he was not tested again until

December 17, 2020, at which point he tested positive for COVID-19. (Id. at 13.) Plaintiff

alleges that the FCLEDC has not been testing its staff and the inmates “weekly or monthly”

and that his life is in extreme danger due to a distegatd for COVID-19 protocols. (id) Asa

result of Defendants’ actions, Plaintiff has experienced breathing problems and has a bad case

of asthma. (Id) Plaintiff alleges that Defendants have violated the Fifth, Eighth and

Fourteenth Amendments, and seeks monetaty damages from each Defendant. (Id at 4, □□□□

On September 30, 2021, Defendants Sheriff Kimbrough, Rocky Joyner, B. Warten, C.

Warren, L. Ferguson, and C. Whitt moved to dismiss pursuant to Federal Rule of Civil

Procedure 12(b)(6) contending that Plaintiff has failed to state a clatm upon which telief can

be granted. (Docket Entry 29.) Plaintiff filed his response to Defendants’ motion. (Docket

1 Unless otherwise noted, all citations herein refer to the page numbers at the bottom

tight-hand corner of the documents as they appear in the Court’s CM/ECF system.

2 The Coutt will address more specific allegations as to each moving Defendant in the

Discussion Section.

Entry 42.) Defendants B. Williams and Judy Lilley each filed separate motions to dismiss on

October 7, 2021, pursuant to Federal Rules of Civil Procedure 12(b)(2), 12(b)(5), 12(b)(6),

both contending that Plaintiff failed to effectuate proper service of process and that he failed

to state a claim upon which relief can be granted. (Docket Entries 36, 39.) WellPath also filed

a motion to dismiss on October 7, 2021, pursuant to Rules 12(b)(2), 12(b)(4), 12(b)(5), and

12(b)(6) of the Federal Rules of Civil Procedure, contending that Plaintiff failed to effectuate

ptopet setvice of process, failed to properly name WellPath within the summons, and failed

to state a claim upon which telief can be granted. (Docket Entry 33; see also Docket Entry 34.)

Plaintiff responded to Defendants B. Williams, Judy Lilley, and WellPath’s individual motions

in one response filed on October 19, 2021. (Docket Entry 44.) Thereafter, Defendants B.

Williams, Judy Lilley, and WellPath filed a joint reply. (Docket Entry 45.) On October 13,

2021, Plaintiff also filed a document which appeats to be a request for an initial pretrial

conference and an order for entry of final judgment pursuant to 28 U.S.C. § 636 (C1). Wee

Docket Entry 43.)

II. DISCUSSION

A. Defendants Sheriff Kimbrough, Rocky Joyner, B. Warren, C. Warren, L.

Ferguson, and C. Whitt’s Motion to Dismiss

Defendants Sheriff Kimbrough, Rocky Joyner, B. Watren, C. Warten, L. Ferguson, and

C. Whitt move to dismiss pursuant to Rule 12(b)(6). (Docket Entty 29.) In consideting a

motion to dismiss for “failure to state a claim upon which relief can be granted” under Rule

12(b)(6) of the Federal Rules of Civil Procedure, a court must determine whether the

complaint is legally and factually sufficient. See Ashcroft v. Iqbal, 556 U.S. 662 (2009); Bell Aus

Corp. v. Twombly, 550 U.S. 544, 570 (2007). To survive a motion to dismiss undet Rule 12(b)(6),

a complaint “must contain sufficient factual matter, accepted as true, to “state a claim to relief

that is plausible on its face.” Igbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570).)). “A

claim has facial plausibility when the plaintiff pleads factual content that allows the coutt to

draw the reasonable inference that the defendant is liable for the misconduct.” Id, see

also Simmons v. United Mortg. and Loan Inv., LLC, 634 F.3d 754, 768 (4th Cir. 2011) (“On a Rule

12(b)(6) motion, a complaint must be dismissed if it does not allege enough facts to state a

claim to relief that is plausible on its face.”) (citations and quotations omitted). The “court

accepts all well-pled facts as true and construes these facts in the light most favorable to the

plaintiff,” but does not consider “legal conclusions, elements of a cause of action, and bare

assettions devoid of factual enhancement[,] . . . unwatranted inferences, unreasonable

conclusions, ot ateuments.” Nemet Chevrolet, Lid. v. Consumeraffairs.com, Inc, 591 F.3d 250, 255

(4th Cir. 2009) (citations omitted). In other words, the standard requires a plaintiff to atticulate

facts that, when accepted as true, demonstrate the plaintiff has stated a claim that makes it

plausible he is entitled to relief. Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cit. 2009)

(quoting Iqbal, 556 U.S. at 678, and Twombly, 550 U.S. at 557).

“To state a claim under § 1983, a plaintiff must allege the violation of a right secured

by the Constitution and laws of the United States, and must show that the alleged deprivation

was committed by a petson acting under color of state law.” West ». Atkins, 487 USS. 42, 48

(1988) (citation omitted). Further, the Fourth Circuit has made clear that “liability will only lie

whete it is affirmatively shown that the official charged acted personally in the deprivation of

the plaintiffs’ rights.” Wéalcox v. Brown, 877 F.3d 161, 170 (4th Cir. 2017) (internal quotation

matks and citation omitted). Thus, a claim under § 1983 “requires factual detail

about each defendant’s personal involvement.” Moore v. Parsons, No. 7:20-CV-00157, 2020

WL 4677408, at *2 (W.D. Va. Aug. 12, 2020) (unpublished) (citing Wilcox, 877 F.3d at 170).

Hete, Plaintiff makes similar factual allegations against Defendants Sheriff Kimbrough,

Rocky Joyner, B. Warren, C. Warten, L. Ferguson, and C. Whitt in different sections of his

Complaint. In the first section titled, “II. D. Basi[s] for Jurisdiction page 4 of 11,” he states

that Sheriff Kimbrough,

[A]cted under color of state/local laws, by allowing FCLEDC

shift commanders and staff membets to enter FCLEDC and

access inmate dorms and cells untested for (COVID-19). Which

put inmate’s life in danger of worse health condition and possible

death, by not allowing mandatory (COVID-19) testing weekly or

monthly. To assute the safety of all inmates who aren’t and were

not infected by (COVID-19).

(Compl. at 9.) As to Defendant Rocky Joyner, Plaintiff alleges that he allowed FCLEDC staff

members and administrative officials to enter the jail without COVID-19 testing which

“infected” nearly 200 inmates. (Id.) Similarly, Plaintiff alleges that Defendants B. Warten, C.

Warten, L. Ferguson, and C. Whitt, allowed FCLEDC staff members and administrative

officials to enter the jail and access inmate dorms and cells “untested for (COVID-19),”

placing inmates in danger of worsening health conditions and again not allowing mandatory

COVID-19 testing to protect inmates unaffected by COVID-19. (See zd. at 10-11.)

In another section of his Complaint titled, “IV Statement of Claim. Page 4 of 11

(personal Involvement) Claim #1 Unlawful professional Judgment/Claim #2 Fail ‘T'o

Enforce,” Plaintiff again makes similar factual allegations against these defendants. (See zd. at

17, 19-23.) He states that Sheriff Kimbrough “{e]nforce[d] policies that allowed FCLEDC

staff members and subordinates of the administrative officials to execute ha[r|mfully,

dangerous methods, by allowing inmates to only get tested for COVID-19 every 6 months.”

(Id. at 17.) Plaintiff further states that Sheriff Kimbrough displayed unlawful professional

judgement by enforcing polices that denied mandatory COVID-19 testing ordered by North

Carolina State Governor Roy Cooper, causing an outbreak amongst nearly 200 inmates, and

Sheriff Kimbrough fully understood that all inmates were at high risk for COVID-19. dd.)

As to Defendants Rocky Joyner, B. Warten, C. Warten, L. Ferguson, and C. Whitt, Plaintiff

teiterates his previous contentions, alleging that they again allowed staff and officials to □□□□□

inmate dorm ateas without being tested, and they too exercised unlawful professional

judgment by enforcing a policy of denying mandatory COVID-19 testing that essentially

should have occurted weekly or monthly. (See ad. at 19-23.)

Defendants Sheriff Kimbrough, Rocky Joyner, B. Warren, C. Warten, L. Ferguson, and

C. Whitt first contend that Plaintiff has failed to state a claim against them under the Fifth

Amendment for reckless endangerment. (Docket Entty 30 at 5-6.) In Bell». Wodfish, 441 U.S.

520, 535 (1979), the Supreme Court held that “under the Due Process Clause, a detainee may

not be punished priot to an adjudication of guilt in accordance with due process of law.”

Accotdingly, it stated that “[iJn evaluating the constitutionality or conditions or resttictions of

pretrial detention that implicate only the protection against deprivation of liberty without due

process of law, . . . the proper inquity is whether those conditions or resttictions amount to

punishment of the detainee.” Id.

The Be// decision “assessed the claims of prettial detainees in the federal system and

thus applied the Fifth Amendment’s Due Process Clause.” Walhamson v. S tirling, 912 F.3d 154,

173 n.15 (4th Cir. 2018). Here, the undersigned notes that the movants are identified as local

government officials, see Compl. at 4-6 (identifying Defendants Sheriff Kimbrough, Rocky

Joyner, B. Warren, C. Warren, L. Ferguson, and C. Whitt as employees of the Forsyth County

ShetiffPs Office ot the FCLEDC). Thus, the principles in Be// apply to Plaintiff by way of the

Fourteenth Amendment. See Wilkamson, 912 F.3d at 173 n.15; see also Gowen v. Enochs, No.

7:20-CV-00247, 2021 WL. 960702, at *3 n.3 (W.D. Va. Mat. 15, 2021) (unpublished) (“The

Fourteenth Amendment applies to due process claims of pretrial detainees in state custody.”).

The Fourth Circuit has assessed both substantive and procedural aspects of due

process claims raised by prettial detainees. See Williamson, 912 F.3d at 174-75. “Typically, a

substantive due process claim pursued by a pretrial detainee challenges the general conditions

of confinement ot the treatment of all detainees in a specific facility.” Id. at 174. To the

conttaty, a ptocedural due ptocess claim generally challenges restrictions imposed to an

individual. See zd. at 174-75.

Plaintiff here alleges that he was placed in “extreme danger” as a result of Defendants’

failure to adequately test inmates, and their policy of permitting untested staff members to

entet inmates’ dorm areas. (See Compl. at 13, 17-23.) Plaintiffs claim, therefore, is rooted in

substantive due process principals. To properly state such claim, Plaintiffs Complaint must

allege that a challenged condition was either “(1) imposed with an expressed intent to punish

ot (2) not reasonably related to a legitimate nonpunitive governmental objective.” Walkamson,

912 F.3d at 178 (internal quotations and citation omitted).

Here, Plaintiff makes no specific allegations that the purported COVID-19 policies and

procedures implemented were imposed with the expressed intent to punish inmates. (See

generally Compl.) As to the second prong, the Fourth Circuit has held that “a pretrial detainee

makes out a due process violation if he shows deliberate indifference to setious medical needs

... because no legitimate nonpunitive goal is served by a denial or unreasonable delay in

providing medical treatment where the need for such treatment is apparent.” Martin v. Gentil,

849 F.2d 863, 871 (4th Cir. 1988) (internal quotations and citations omitted). This principal

implicates Plaintiffs claims under the Eighth and Fourteenth Amendments, and overlaps

Defendants’ argument that such claims also fail. (See Docket Entry 30 at 7-15.)

At the outset the Court notes that Plaintiffs deliberate indifference claim is actually

brought under the Fourteenth Amendment as he is a pretrial detainee, rather than the Eighth

Amendment; however, they ate analyzed the same. (See Compl. at 7; Turner v. Kight, 121 F.

App’x 9, 13 (4th Cir. 2005) (“While a pre-ttial detainee’s rights with respect to claims of

deliberate indifference [fall under] the due process clause of the Fourteenth Amendment,

tather than the Eighth Amendment, with respect to such claims, a pretrial detainee’s due

process tights ate co-extensive with a convicted prisoner's Eighth Amendment tights.”)

(citation omitted).)

To constitute deliberate indifference a Plaintiff must make two showings:

First, the evidence must show that the official in question

subjectively recognized a substantial risk of harm. It is not

enough that the [official] should have recognized it; [he] actually

must have perceived the tisk. Second, the evidence must show

that the official in question subjectively recognized that his

actions wete inapproptiate in light of that tisk. As with the

subjective awateness element, it is not enough that the

official should have recognized that his actions were inapproptiate;

the official actually must have recognized that his actions wete

insufficient.

Parrish ex rel. Lee v. Cleveland, 372 F.3d 294, 303 (4th Cir. 2004) Gnternal citations and quotation

marks omitted) (emphasis in original). The deliberate indifference standard is mote than mete

negligence, requiting actual knowledge of the individual defendant’s own recklessness. Farmer

v. Brennan, 511 US. 825, 836 (1994).

Here, Plaintiffs allegations against this group of Defendants ate mostly repetitive and

conclusory and fail to state how each prison official individually violated Plaintiff's

constitutional tights. Plaintiff generally states that Governor Cooper ordered mandatory

COVID-19 testing but has not alleged specific facts regarding such order or policy. (See

Compl.) More importantly, Plaintiff has not alleged that each defendant individually both

subjectively recognized a substantial risk of harm related to such policy, and that each

defendant subjectively recognized that his or her actions were inappropriate in light of that

tisk. See Anders v. Russell, No. 7:21CV00030, 2022 WL 726923, at *4 (W.D. Va. Mat. 10, 2022)

(unpublished) (Plaintiff “fails to state facts concetning how each of the individual named jail

officials or medical officials interacted with him in a manner that deprived him of

constitutionally protected tights.”); Newell v. Roy Cooper Governor’s COVID-19 Task Force, No.

5:20-CT-03378-M, 2022 WL 450983, at *4 (E.D.N.C. Feb. 14, 2022) (unpublished)

(“[P]laintiff's claims about his COVID-19 infection and protocols at [the prison facility] fail

to plausibly allege that defendants actually knew of, but distegatded, a substantial risk of

setious hatm to plaintiff or acted with the requisite culpable state of mind”). More

particularly, the Complaint fails to allege specific facts regarding each Defendants’ knowledge

of the COVID-19 testing protocols, and their conscious decision to ignore such protocols,

which led to Plaintiff's positive test and his other injuries. This warrants dismissal of Plaintiff's

deliberate indifference and substantive due process claims against said Defendants.

Instead of specific allegations of personal involvement against Defendants Sheriff

Kimbrough, Rocky Joyner, B. Warren, C. Warren, L. Ferguson, and C. Whit, Plaintiffs

Complaint repeatedly alleges in conclusory fashion that Defendants allowed “staff members”

and “administrative officials” to enter dorm ateas untested, and that each failed to “enforce”

COVID-19 testing protocols. (See e.g., Compl. at 9-11, 17, 19-23.) ‘To the extent Plaintiff is

attempting to sue Defendants in a supervisory capacity, such claims are also subject to

dismissal because the doctrine of respondeat superior is generally not applicable to § 1983

suits. Monell v. Dep’t of Sovial Servs., 436 U.S. 658, 694 (1978). However, a supervisor may be

liable for the actions of a subordinate if:

(1) the supervisor had actual or consttuctive knowledge that his

subordinate was engaged in conduct that posed “a petvasive and

unteasonable risk” of constitutional injury to citizens like the

plaintiff;

(2) the supervisor’s tesponse to that knowledge was so

inadequate as to show “deliberate indifference to of tacit

authorization of the alleged offensive practices;” and

(3) there was an “affirmative causal link” between the

supetvisot’s inaction and the particular constitutional injury

suffered by the plaintiff.

Shaw v. Stroud, 13 F.3d 791, 799 (4th Cir. 1994). Additionally, “[a]plaintiff may establish

deliberate indifference by demonstrating a supetvisor’s continued inaction in the face of

documented widespread abuses[;]” however, a “plaintiff assumes a heavy burden of proof” on

this issue because “a supervisor cannot be expected to promulgate rules and procedures

coveting every conceivable occurrence within the atea of his responsibilities.” See zd. internal

citation and quotations omitted).

Here, Plaintiff fails to allege sufficient facts to that Defendants had actual ot

consttuctive knowledge of their subordinates engaging in pervasive or widespread conduct

10

that caused Plaintiffs COVID-19 positive test. For example, there ate no allegations that

Defendants knew of multiple subordinates or administrative staff who entered Plaintiffs cell

with COVID-19, on various occasions, and that these Defendants did nothing to correct this

conduct. ‘The Complaint also fails to allege sufficient facts to support a claim that Defendants

knew that subordinates ignored COVID-19 testing protocols, and then did nothing despite

being aware of their subordinate’s conduct. ‘Thus, to the extent alleged, Plaintiff claims under

the theory of supervisory liability against these Defendants should be dismissed.

Defendants also argue that to the extent Plaintiff attempts to assert municipal liability

under Monell, that too fails. (Docket Entry 30 at 12-15.) The undersigned agrees. County or

municipal liability may be established under § 1983 only “when execution of a government’s

policy or custom, whether made by its lawmakers or by those edicts or acts may fairly be said

to represent official policy, inflicts the injury.” Movell, 436 U.S. at 694. Hete, the vague and

conclusory allegations in PlaintifPs Complaint fall short of alleging a plausible Moned/ claim.

Plaintiff vaguely alleges that Defendants “enforce[d] policies” that allowed staff to execute

inadequate testing ptotocols. (See Compl. at 17; see also Woodie v. McFadden, No. 3:21-CV-

00068-MR, 2022 WL 1213618, at *3 (W.D.N.C. Apr. 25, 2022) (unpublished) (Plaintiffs

“vaoue allusions to a ‘pattern of willful disregard for the health and safety of prisoners,’ and

the failure to adhete to the [county jail’s standard operating procedures] regarding the handling

of COVID-19, ate insufficient.”).) Even if such policy of purported inadequate testing

ptotocols existed, Plaintiff has failed to allege sufficient facts that would establish that the

failute to routinely test inmates and staff at the FCLEDC was the proximate cause of his actual

COVID-19 diagnosis. Therefore, his Complaint is insufficient to proceed on this claim.

11

Lastly, the undersigned notes that while Plaintiff alleges that Defendants Sheriff

Kimbrough, Rocky Joyner, B. Warten, C. Warren, L. Ferguson, and C. Whitt exetcised

“unlawful professional judgment,” see Compl. at 17, 19-23, such standard is inapplicable hete.

That is because the deliberate indifference standatd applies to pretrial detainees “while claims

assetted by individuals involuntarily committed to psychiatric institutions are evaluated undet

the professional-judgment standard.” Cook v. Mildred Mitchell Bateman Hosp., No. 3:15-CV-

10569, 2017 WL 1505610, at *4 (S.D.W. Va. Mart. 31, 2017) (unpublished) (citations and

internal quotations omitted); see also Youngberg v. Romeo, 457 U.S. 307 (1982); Heyer v. United

States Bureau of Prisons, 849 F.3d 202, 209 n.6 (4th Cir. 2017) (citing Brown v. Harris, 240 F.3d

383, 388 (4th Cir. 2001) (“deliberate-indifference standard applies to medical-cate claims

involving pre-trial detainees”). As Plaintiff alleges that the events in the Complaint occurred

while he was a pretrial detainee, see Compl. at 7, it is inappropriate to apply the professional

judgment standard here.>

B. Defendant WellPath’s Motion to Dismiss

Plaintiffs Complaint alleges “unlawful professional judgment” and “failfute] to

enforce” claims against WellPath. (See Compl. at 8, 16.) In support of its “unlawful

ptofessional judgment,” Plaintiff alleges that WellPath failed to follow the mandatory testing

ordered by Governot Cooper and instead provided testing every six months. (Id. at 16.) ‘The

Complaint further states that WellPath allowed its medical staff “to enforce the policies that

denied mandatory (COVID-19) testing” and “failfed] to enforce: urgent and immediate

> ‘The undersigned has pteviously applied the deliberate indifference standatd in assessing the

allegations against said Defendants.

12

healthcate” by not performing weekly or monthly testing. (Id) Defendant WellPath asserts

numerous arguments to support dismissal of PlaintifPs Complaint against it. (See Docket

Entty 34.) The undersigned will discuss a few below that warrant dismissal of said Defendant.

WellPath argues that Plaintiff did not effectuate proper service of process on it.

(Docket Entry 34 at 4-7.) Plaintiffs summons improperly lists FCLEDC’s address instead of

WellPath’s address. (Docket Entry 5-2.) While the United States Marshals Service served the

summons and complaint on Valerie Davis, a WellPath administrative assistant, (Docket Entry

18), WellPath argues that Davis is not identified as an officer, director, or managing agent of

WellPath and therefore that service was improper. (Docket Entry 34 at 6.)

This Court recently addressed this issue in a sepatate matter involving Plaintiff and

WellPath:

A civil action is commenced by the filing of a complaint and the

issuance of a summons by the clerk of court. Fed. R. Civ. P. 4).

The summons commands a defendant to appear and must be

setved with the complaint on each defendant. Fed. R. Civ. P. 4(a)

& (c). Service must be made in accotdance with the rules. See, e.g.,

Fed. R. Civ. P. 4(e) & (j); N.C. R. Civ. P. 4G). Further, Federal

Rule of Civil Procedure 4(m) provides that “fi]f a defendant is

not setved [with the complaint and summons] within 90 days

after the complaint is filed, the court — on motion of on its own

after notice to the plaintiff — must dismiss the action without

ptejudice against that defendant or order that service be made

within a specified time.”

The summons must be setved on each defendant, along with a

copy of the complaint, “by any person who is at least 18 years old

and not a patty” to the action. Fed. R. Civ. P. 4(¢)(1)-(2). There

ate two ways to effectuate setvice on a corporation, such as

WellPath: (1) in accordance with state law; or (2) “by delivering a

copy of the summons and of the complaint to an officer, a

managing or genetal agent, or any other agent authorized by

appointment or by law to receive setvice of process.” Fed. R. Civ.

P. 4(h)(1). The applicable state law -- the North Carolina Rules

13

of Civil Procedure -- permits service on a corporation by (1)

delivering a copy of the summons and complaint to an “officer,

director, or managing agent of the corporation” or leaving a copy

with a petson apparently in charge of such person’s office; (2)

delivering a copy of the summons and complaint to an agent

authorized to accept setvice ot as authorized by law to be served

in accordance with any statute; (3) by mailing a copy of the

summons and complaint “registered ot certified mail, return

receipt requested” to an officer, director, or authorized agent; ot

(4) depositing a summons and complaint with an authorized

delivery service pursuant to 26 U.S.C. § 7502(f)(2) addressed to

the officer, director, or agent, and obtaining a delivery receipt.

N.C. R. Civ. P. (6).

When a defendant raises a defense pursuant to Federal Rule of

Civil Procedure 12(b)(5), the plaintiff beats the burden of

establishing compliance. Ballard v. PNC Fin. Servs. Grp., Inc., 620

F. Supp. 2d 733, 735 (S.D. W. Va. 2009). And while Lowery is

proceeding pro se and is entitled to a certain liberal construction

of his complaint, Estelle v. Gamble, 429 U.S. 97, 106 (1976), the

court need not ignore clear defects, Bustos v. Chamberlain, No.

3:09-1760-HMH-JRM, 2009 WL 2782238, at *2 (D.S.C. Aug. 27,

2009). Even pro se litigants must follow the proper procedural

tules of the court, and it is not the court’s role to become an

advocate for the pro se litigant. Weller v. Dep’t of Soc. Servs., 901 F.2d

387, 391 (4th Cir. 1990).

Lowery v. Forsyth Caty. Sheriff's Dep’t, No. 1:20-CV-888, 2022 WL 939651, at *2 (M.D.N.C. Mat.

29, 2022) (unpublished).

Here, Plaintiff has failed to carry his burden of establishing compliance with service.

While Plaintiff has filed a response to WellPath’s motion, he has not responded at all to

WellPath’s contention that service was improper. (See Docket Entry 44.) Ultimately, Plaintiff

did not list an address for WellPath upon which service should be effectuated; rather, he

provided FCLEDC’s address. (Docket Entry 5-2.) That is where the summons and

Complaint was served on Davis, who WellPath contends has not been identified as an officer,

director, or managing agent of WellPath, or someone otherwise authorized to accept setvice

14

on WellPath’s behalf. (Docket Entry 34 at 6.) In light of such and because Plaintiff “has

offered no response contesting WellPath’s representation,” Lowery, 2022 WL 939651, at *2,

WellPath’s motion to dismiss pursuant to Rule 12(b)(5) should be granted and the Complaint

against WellPath should be dismissed without prejudice.

Setting aside the service defects, the Complaint should be dismissed against WellPath

for failure to state a claim upon which relief may be granted. First, as previously stated, the

“professional-judgment” standard is inapplicable here. Heyer, 849 F.3d at 209 n.6. Further,

the extent that [Plaintiff's] claim is for a separate cause of action for engaging in some

form of ‘unlawful professional judgment,’ his claim [should be] dismissed as no such cause of

action exists at common law.” Lowery, 2022 WL 939651, at *6 (citation omitted). Indeed,

“allegations of ‘unlawful professional judgement’? sound in negligence, not deliberate

indifference.” Richardson v. Wellpath Health Care, No. 1:20CV777, 2021 WL 1430698, at *1 n.1

(M.D.N.C. Apr. 15, 2021) (unpublished).

Moteover, any claim against WellPath for deliberate indifference fails to meet the

pleading requirements. Private medical providers who provide contractual services for a state

ot ptovide medical cate to inmates ate subject to deliberate indifference standard claims. See

West v. Atkins, 487 U.S. 42, 54 (1998) (explaining that a ptivate entity which contracts with the

state to ptovide medical services acts “under color of state law”). However, “a private

corporation is liable under § 1983 o#/y when an official policy or custom of the corporation

causes the alleged deprivation of federal rights.” Austin v. Paramount Parks, Inc, 195 F.3d 715,

728 (4th Cir. 1999) (citation omitted) (emphasis in original). “Outside of formal written

tegulations or formal rulings by policy makers, a custom may arise if a practice is so “persistent

15

and widespread’ and ‘so permanent and well settled as to constitute a ‘custom ot usage’ with

the force of law.’ ” Anders, 2022 WL 726923, at *6 (citation omitted).

Here, Plaintiff fails to allege nothing more than conclusory allegations regarding

WellPath’s failure to enforce policies surrounding COVID-19 testing. Even if there was

weekly or monthly mandatory testing ordered by Governor Cooper, Plaintiff has not alleged

how this related to a policy ot custom of Wellpath that directly caused Plaintiff to test positive.

At this stage, Plaintiff must allege facts to plausibly support “a direct causal link between a

[corporate] policy or custom and the alleged constitutional deprivation.” City of Canton, Ohio

v. Harris, 489 U.S. 378, 385 (1989). Having not done so, Plaintiffs deliberate indifference

claim against WellPath should be dismissed. See McAUhster v. Wellpath Health Care, No.

1:19CV1034, 2020 WL 2813386, at *4 (M.D.N.C. May 29, 2020) (“[T]he Complaint fails to set

out, name, or describe [the defendant’s] policies, much less explain how they led to the alleged

violations. Conclusory allegations of deficient policies or customs do not suffice to state a

viable claim for telief.”), report and recommendation adopted sub nom. McAlister v. Wellpath Health

Care, No. 1:19-CV-1034, 2020 WL 3976971 (M.D.N.C. July 14, 2020), appeal dismissed, 827 F.

App’x 355 (4th Cir. 2020).

B. Defendants B. Williams and Judy Lilley’s Motions to Dismiss

Defendants B. Williams and Judy Lilley also move to dismiss, in pertinent part, based

upon improper service of process. (See Docket Entry 37 at 5-7; Docket Entry 40 at 4-7.) The

summonses for both Defendants list FCLEDC’s addtess. (See Docket Entries 5-10; 5-11.)

The U.S. Matshal’s Process Receipt and Returns show that Davis was setved with the

documents on August 27, 2021. (See Docket Entries 21, 22.) Defendants B. Williams and

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Judy Lilley both filed an affidavit from Davis stating that neither Defendant authorized Davis

to be their agent, ot to accept or sign for setvice of process on theit behalf. (See Affidavit of

Valatie Davis 5-6, Docket Entries 37-1, 40-1.) Said Defendants therefore contend that

dismissal is watranted.

Setvice upon an individual within a judicial district in the United States must comply

with Rule 4(e) which states:

Unless federal law provides otherwise, an individual... may be served

in a judicial district of the United States by:

(1) following state law for serving a summons in an action brought

in courts of general jurisdiction in the state where the district court

is located or where service is made; or

(2) doing any of the following:

(A) delivering a copy of the summons and of the complaint to

the individual personally;

(B) leaving a copy of each at the individual’s dwelling or usual

place of abode with someone of suitable age and discretion who

resides there; ot

(C) delivering a copy of each to an agent authorized by

appointment or by law to receive service of process.

Fed. R. Civ. P. 4(e). N.C. Gen. Stat. § 1A-1, Rule 4()(1) sets out the mannet in which service

upon a natural person may be made in the state of North Carolina. The Fourth Circuit has

stated that “[a]bsent waiver or consent, a failute to obtain proper service on the defendant

deprives the court of personal jurisdiction over the defendant.” Koehler v. Dodwell, 152 F.3d

304, 306 (4th Cir. 1998) (citation omitted).

Here, Defendants B. Williams and Judy Lilley have submitted the affidavit of Davis

who stated that she was not authorized to be agents for said Defendants, nor authorized to

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accept ot sign for service of ptocess on theit behalf. (See Affidavit of Valarie Davis {[f] 5-6,

Docket Entries 37-1, 40-1.) Again, Plaintiff has offered no response contesting Defendants’

teptesentations. Thus, Defendants B. Williams and Judy Lilley’s motions should be granted,

and any individual capacity claims against them in the Complaint should be dismissed without

prejudice.4 Stanley v. Gaston Cnty. Dep't of Health & Hum. Servs., No. 315CV00551FDWDCK,

2016 WL 5867431, at *2 (W.D.N.C. Oct. 6, 2016) (unpublished) (“Service of process cannot

be effected on Defendants . . . in their individual capacity by serving at their place of

employment individuals not authorized to accept service.”); Mack v. Fox, No. 1:07CV760, 2008

WL 4832995, at *4 (M.D.N.C. Nov. 4, 2008) (unpublished) (“Plaintiff failed to propertly serve

the moving Defendants in... their . . . individual capacities, and, for this reason alone, the

claims against the moving Defendants should be dismissed.”), report and recommendation

adopted, No. 1:07CV760, 2008 WL 7674789 (M.D.N.C. Dec. 10, 2008) (unpublished).

C. Plaintiffs Motion for an Initial Pretrial Order and Final Judgment

Plaintiff has filed a motion seeking an initial pretrial order by conference putsuant to

Federal Rule of Civil Procedure 16(b)(1) and (0), and an order for entry of final judgment

pursuant to 28 U.S.C. § 636(c)(1). (See Docket Entry 43.) Rule 16(b)(1) states that “the district

judge—ort a magistrate judge when authorized by local rule--must issue a scheduling order.”

* Any claims against Defendants B. Williams and Judy Lilley in their official capacity would be

duplicative of the deliberate indifference claim against WellPath and should also be dismissed. See

Riddick v. Watson, 503 F. Supp. 3d 399, 414 (E.D. Va. 2020) (‘Although courts differ in their treatment

of official capacity claims against individuals employed by private companies that contract with jails .

to provide inmate medical services, most treat such claims as claims against the private employet

rather than against some government office or agency for which the privately-employed individuals

provide setvices.”); Kentucky v. Graham, 473 US. 159, 165 (1985) (official capacity claims “generally

represent only another way of pleading an action against an entity of which an officer is an agent”)

(citation and internal quotations omitted).

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Fed. R. Civ. P. 16(b)(1). However, such tule further provides that this mandate does not apply

“in categories of actions exempted by local rule[.]” Jd. The Local Civil Rules of this district

ptovide that there will be a pretrial order except in “[c]ases brought by pro se plaintiffs or in

which all defendants are appeating pro se.” M.D.N.C. LR 16.1(a)(6). As Plaintiff is

proceeding pro se, “his motion seeking an initial prettial order is improper because his case falls

under an exemption to Federal Rule of Civil Procedure 16.” Lowery, 2022 WL 939651, at *7.

As such, Plaintiffs request will be denied.

Further, Plaintiffs request for final judgment under 28 U.S.C. § 636(c)(1) is improper.

§ 636 sets forth jurisdiction of a United States Magistrate Judge and, in pertinent patt, provides

that “[u]pon the consent of the patties, a... . United States magistrate judge . . . may conduct

any of all proceedings in a jury or nonjuty civil matter and order the entry of judgment in the

case, when specially designated to exercise such jutisdiction by the district court or courts he

setves.” 28 U.S.C. § 636(c)(1) (emphasis added). A notice was filed in this case regarding the

patties’ rights to consent to the exercise of civil jurisdiction by a Magistrate Judge. (Docket

Entry 6.) It notes that if a// patties consent, a referral to the Magistrate Judge pursuant to 28

US.C. § 636(¢)(1) may take place. (See zd.)

Hete, there is no order referring this matter to the undersigned pursuant to 28 U.S.C.

§ 636(c)(1) for all proceedings including entry of judgment, nor does the docket otherwise

teflect that this Court has treated this case as one involving consent to the jurisdiction of a

Magistrate Judge. Thus, Plaintiffs request for final judgment pursuant to 28 U.S.C. § 636(¢)(1)

is improper and will be denied.

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III. CONCLUSION

For the teasons stated herein, IT IS HEREBY RECOMMENDED that Defendants

Bobby F. Kimbrough, Jr., Rocky Joyner, B. Warten, C. Warten, L. Ferguson, and C. Whitt’s

Motion to Dismiss (Docket Entry 29) be GRANTED and that Plaintiff's Complaint be

dismissed with prejudice against said defendants for failure to state a claim upon which telief

may be granted.

IT IS FURTHER RECOMMENDED that Defendant WellPath Health Care’s

Motion to Dismiss (Docket Entry 33) be GRANTED and Plaintiff's Complaint be dismissed

without prejudice against said defendant for insufficient service of process, or alternatively,

dismissed with prejudice against said defendants for failure to state a claim upon which relief

may be granted.

IT IS FURTHER RECOMMENDED that Defendant B. Williams’s Motion to

Dismiss (Docket Entry 36) and Defendant Judy Lilley’s Motion to Dismiss (Docket Entry 39)

be GRANTED and Plaintiffs Complaint be dismissed without prejudice against said

defendants in their individual capacities for insufficient service of process, and dismissed in

their officials capacities as duplicative claims against WellPath Health Care.

IT IS HEREBY ORDERED that Plaintiffs Motion for an Initial Pretrial Order and

Final Judgment (Docket Entry 43) is DENIED.

Qu Welato=

Joe L. Webster

United States Magistrate Judge

August 16, 2022

Dutham, North Carolina

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