# LOWERY v. FORSYTH COUNTY SHERIFF'S DEPARTMENT

> District Court, M.D. North Carolina · August 16, 2022

URL: https://www.frixlaw.com/law-library/cases/10254279

## Case

- **Court:** District Court, M.D. North Carolina
- **Decided:** August 16, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10254279

## How later opinions describe it (automated extraction)

- explaining that a ptivate entity which contracts with the state to ptovide medical services acts “under color of state law”

## Opinion text

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

16

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
17

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).
18

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.

19

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
20

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10254279. Public record. Not legal advice.