The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
GERALD JOHN LADUE, JR., )
Plaintiff,
v. 1:21CV900
FORSYTH MEMORIAL HOSPITAL, et al,
Defendants.
ORDER, MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
This matter is before the Court on a motion to dismiss pursuant to Rule 12(b)(1) and
12(b)(6) of the Federal Rules of Civil Procedute filed by Defendant Forsyth Memorial Hospital
(FMH). (Docket Entry 17.) Plaintiff Gerald John Ladue, Jr. has responded to FMH’s motion.
(Docket Entry 21.) Also before the Court is Plaintiffs motion entitled, “Motion to Amend
Cause of Action.” (Docket Entry 22.) For the following reasons, the undersigned
recommends that FMH’s motion to dismiss be granted. Further, to the extent Plaintiffs
“Motion to Amend Cause of Action” requests to amend the original Complaint as it pertains
to the remaining two defendants, the motion will be granted.
I. BACKGROUND
Plaintiff, a pro se prisoner proceeding □□□ forma pauperis, initiated this action pursuant to
42 U.S.C. § 1983 on November 19, 2021. (Compl., Docket Entry 2; see a/so Docket Entries 1,
3.) In the Complaint, Plaintiff contends Defendants FMH, “Forsyth Hospital Doctor that
seen me” (Doctor), and Stokes County Jail’s Medical Department (SCJMD) violated his Eighth
and Fourteenth Amendment tights by acting with deliberate indifference to his “serious
medical condition” while he was a pretrial detainee. (See generally Compl.)
Specifically, Plaintiff alleges that on May 25, 2021, he was atrested by the Winston-
Salem Police Department, and, on that date, he informed an “offic[ijal” that he needed medical
treatment for his jaw as there was something “wrong with it.” (Id. at 4, 18.)1 Then, due to
Plaintiff having “another medical need,” a Winston-Salem police officer took him to FMH.
at 4-5, 18.) While at FMH, a CT’ scan and an X-ray were taken of Plaintiff that revealed
his “jaw was broken,” and he was informed his jaw would “heal” on its own. (Id.) After two
days, Plaintiff was released from FMH to the Forsyth Police Department “without any
treatment for [his] broken jaw.” (Id. at 18.) Subsequently, while Plaintiff waited to be
transferred to the Stokes County Jail, his jaw became infected, and by the time he saw a nurse
at the Stokes County Jail, the infection in his jaw was causing him “serious pain.” ([d. at 18-
19.) Plaintiff further alleges that he pleaded for the nurse to send him to the hospital, but the
nutse stated, “that wasn’t going to happen,” and instead put him on antibiotics for the
infection and gave him nothing for the pain. Ud. at 19.)
Thereafter, his jaw did not heal, and he could not eat, chew, or brush his teeth. □□□□
On July 10, 2021, he was transferred to another correctional institution, and after about three
weeks, a dentist took another X-ray of Plaintiffs jaw, showed him that he had a broken jaw,
stated that his jaw was infected, and prescribed him antibiotics for about two months. (Id. at
‘All citations in this Order and Recommendation to documents filed with the Court refer to
the page numbers located at the bottom right-hand corner of the documents as they appear in
CM/ECE.
19, 20.) Thereafter, he was taken to a dental specialist, who informed Plaintiff that he was
going to need a “Titanium plate” put in his jaw, that the nerve that ran through Plaintiff's
jawbone was torn in half, and that there was a chance he would never be able to “feel a large
atea of his face again.” (Id. at 20.) On August 16, 2021, he had surgery to fix his jaw. (Id. at
21.) Plaintiff further alleges that Defendants knew about and disregarded the X-tays of
Plaintiff's broken jaw, as they “let [him] suffer with pain for months” even though his jaw was
“swollen and infected.” (Id. at 4-5.) Due to FMH?’s failure to fix Plaintiff's jaw, it was
“seriously infected.” (Id) The infection became “so bad” that it spread to his eats, causing
him to “lose heating” in one of his ears, and resulting in the inability to feel his “right bottom
lip.” (Id) For telief, Plaintiff seeks damages for “pain and suffering.” (dd. at 5.) Plaintiff also
attached numerous documents including grievances indicating that he had jaw pain and
hearing loss. (Id. at 13-16.)
Defendants FMH and Doctor wete setved on July 15, 2022, and Defendant SCJMD
was setved on July 14, 2022. (Docket Entries 10, 10-1, 10-2.) On August 5, 2022, FMH
moved to dismiss the claims against it, and answered the Complaint. (Docket Entries 17, 18,
19.) Subsequently, on August 19, 2022, Plaintiff filed a document docketed as a “response”
to FMH’s motion to dismiss. (Docket Entry 21.) In the document, Plaintiff states that
“Motion Allowed to dismiss for qualified immunity,” and that due to FMH being a private
hospital and not personally involved in his “actual injury,” he “agree[d] with there dismissal.”
(d.) Plaintiff further states that he is “still going forward in the lawsuit against the Doctor
there responsible for.” (Id.) On that same day, Plaintiff also filed a “Motion to Amend Cause
of Action,” naming only Defendant Doctor and Defendant SCJMD, and stating, zuter ala, that
he requests, pursuant to Federal Rule of Civil Procedure 15(a), for the Court to permit him to
amend several pages of the Complaint. (See generally Docket Entry 22.) Plaintiff also attached
the specific pages he wants to amend to the original Complaint (éd. at 2-6), which included
allegations pertaining to Defendants Doctor and SCJMD’s failure to provide him with
adequate medical and dental cate for his “serious medical/dental need” due to
“{dlisctimination of his opiate addiction” in violation of his Eighth and Fourteenth
Amendment tights (dd. at 2-6). Thereafter, on September 6, 2022, Defendant SCJMD
answered the claims against it. (Docket Entry 25.)
II. DISCUSSION
A. FMH’s Motion to Dismiss
FMH contends that Plaintiff's Complaint fails to state a claim upon which relief can be
granted. (See generally Docket Entries 17, 18.) Specifically, FMH argues that (1) it is not “a
person” covered under § 1983, as it is a private, non-profit corporation; (2) Plaintiff fails to
allege any facts that establish FMH acted under the color of state law when it treated Plainuff
on May 25, 2021; and (3) PlaintifPs Complaint contains no factual allegations of any custom
ot policy of FMH that would allow Plaintiff to recover against it pursuant to § 1983. (See a.)
FMH also argues that to the extent PlaintifPs Complaint purports to assert a claim against
FMH for medical malpractice, the Coutt lacks subject matter jurisdiction over that state law
claim since Plaintiff fails to state a § 1983 claim against FMH. (d.)
Hete, given that Plaintiffs “response” and subsequent filings indicate that he agrees to
voluntarily dismiss FMH from the instant action, and instead wants to pursue only his claims
against Defendants Doctor and SCJMD (see generally Docket Entries 21, 22), the undersigned
recommends that FMH’s motion to dismiss be granted. ?
B. Plaintiffs Motion to Amend Cause of Action
As previously noted, Plaintiff has filed a “Motion to Amend Cause of Action.” (See
Docket Entry 22.) Under Rule 15(a)(1)(B), a patty may amend its pleading once as a matter
of course within 21 days after service of a motion under Rule 12(b). Fed. R. Civ. P. 15(a)(1)(8);
see also All. Sols., Inc. v. Quest Software, Inc, No. ELH-11-2115, 2012 WL 692883, at *8 (D. Md.
Mar. 1, 2012) (unpublished) (“[T]he plain text of Rule 15(a)(1) provides, an amended
complaint is a permissible response to a Rule 12(b) motion. Indeed, a party might opt to file
an amended complaint in response to a Rule 12(b) motion, so as to cure the perceived
deficiencies identified by such a motion, thereby bringing into sharp focus the basis of a
plaintiffs complaint and facilitating efficient resolution of claims.”). Furthermore, “Rule
15(a)’s liberal standard is even mote broadly construed for pro se litigants.” Thomas v. Delmarva
Power ¢» Light Co., No. RDB-15-0433, 2016 WL 374076, at *2 (D. Md. Feb. 1, 2016)
(unpublished) (collecting cases).
Here, Plaintiff filed his “Motion to Amend Cause of Action” within 21 days after
setvice of FMH’s motion under Rule 12(b) and its answer, thus the Court will grant Plaintiffs
Motion as a matter of course. However, the undersigned notes that Plaintiff's Motion
attempts to correct and add claims, and allegations to portions of the original Complaint. To
The undersigned notes that there is no need to discuss the merits of FMH’s motion to dismiss,
given that Plaintiff agrees to dismiss FMH from this action. However, the undersigned notes that
notwithstanding Plaintiffs consent to dismissal, the arguments in FMH’s motion to dismiss are
meritorious, and would otherwise warrant FMH’s dismissal from this action.
ensure that the remaining defendants are given proper notice as to the claims and allegations
assetted against them, Plaintiff will be directed to file an Amended Complaint asserting all
claims and allegations he wishes to proceed against Defendant Doctor and Defendant SCJMD.
Ill. CONCLUSION
For the reasons stated herein, IT IS HEREBY RECOMMENDED that Defendant
Forsyth Memorial Hospital’s motion to dismiss (Docket Entry 17) be GRANTED and that
the claims against said Defendant be dismissed.
IT IS HEREBY ORDERED that to the extent Plaintiff seeks to amend the
Complaint (Docket Entry 22), that request is GRANTED. Plaintiff is directed to file an
amended pleading (which he should name “Amended Complaint”) that asserts all claims and
allegations he wishes to proceed against Defendant Doctor and Defendant Stokes County
Jail’s Medical Depattment no later than November 22, 2022.
To further assist Plaintiff, IT IS FURTHER ORDERED that the Clerk shall send
Plaintiff a copy of the original Complaint (Docket Entry 2), and a copy of pages 2 through 6
of Plaintiff's “Motion to Amend Cause of Action” (Docket Entry 22 at 2-6). Upon the filing
of Plaintiffs Amended Complaint, this amended pleading shall be the operative complaint in
this action, and Defendant Doctor and Defendant Stokes County Jail’s Medical Department
shall file an answet to Plaintiffs Amended Complaint within 14 days thereafter.
lito
United States Magistrate Judge
November 1, 2022
Durham, North Carolina