CONNELL v. RUSSELL, PA-C

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

ROGER DALE CONNELL, JR., )

)

Plaintiff, )

)

v. ) 1:22CV935

)

KAREN ADAMS, et. al., )

)

Defendants. )

MEMORANDUM OPINION AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

This case comes before the undersigned United States

Magistrate Judge for a recommendation on Defendant Karen Adams’1

Motion to Dismiss (Docket Entry 11; see also Docket Entry 12

(“Supporting Brief”)), and Defendant Van Shaw’s Motion to Dismiss

(Docket Entry 16; see also Docket Entry 17 (“Brief in Support”)).

For the reasons that follow, the Court should deny both Motions to

Dismiss.

I. BACKGROUND

Plaintiff, at all relevant times a pretrial detainee at the

Cabarrus County Detention Center (the “CCDC”) (Docket Entry 2 at

2), initiated this 42 U.S.C. § 1983 (“Section 1983”) action against

Defendants (a medical provider at CCDC and the Sheriff of Cabarrus

County, respectively) for allegedly inadequate medical treatment at

the CCDC (id. at 2, 3). The Complaint contends that, beginning in

1 The Plaintiff appears to have misnamed Karen Russell as

Karen Adams. For the sake of clarity, the Court will refer to

Karen Russell by her correct name in this Recommendation.

October 2021 (id. at 4), Defendants “refused [Plaintiff] medical

treatment for Hepatitis C” (id.), and “stated that they won’t treat

[Plaintiff] at [CCDC] due to the possibility of [Plaintiff] being

released” (id. at 5). According to the Complaint, “[Plaintiff’s]

AST and ALT (liver enzymes) levels are very high[,] causing

[Plaintiff] pain, hard[e]ning, and detereoration of [his] liver.”

(Id.) The Complaint alleges further that the Hepatitis C “virus

multipl[ies] on a daily basis . . . limit[ing Plaintiff’s] body[’]s

ability to filter out toxins properly, making [Plaintiff] more

sus[c]eptible to other viruses, infection, and diseases.” (Id.)

As a result of the alleged denial of Hepatitis C treatment,

Plaintiff seeks “punitive and compensatory money damages in the

amounts of $8,000 [as to] each [Defendant]” (id.), intended for

“pain and suffering, mental distress, [and the] price of

treatments, medications[,] and doctors (id.).

Defendant Russell moved to dismiss the Complaint “pursuant to

[Federal] Rule [of Civil Procedure] 12(b)(2), (4), (5) and (6).”

(Docket Entry 12 at 1.) In support of that Motion to Dismiss, the

Supporting Brief contends that the Complaint fails to state a claim

“because [ D]efendant as named by Plaintiff does not exist.” (Id.

at 2; see also id. (“The only person with the first name ‘Karen’

who was contracted by Southern Health Partners, Inc. to work at

CCDC during the period at issue is Karen Russell, PA-C.”). The

Supporting Brief further argues for dismissal under Federal Rule of

2

Civil Procedure 12(b) (2), (4), and (5), because “Plaintiff named

and attempted to serve a non-existent defendant at the improper

address for the purported employer or contractor for the

non-existent defendant.” (Id. at 5.) Due to the allegedly

deficient process and improper service thereof, the Supporting

Brief asserts this Court lacks personal jurisdiction over Defendant

Russell, warranting dismissal. (See id. at 4, 6-7.)

Defendant Shaw moved to dismiss the Complaint on statutory and

immunity grounds. (See Docket Entry 17 at 2-7.) First, the Brief

in Support contends that “NCGS § 153A-225” (id. at 2), which

requires Defendant Shaw (as Sheriff of Cabarrus County) to “provide

a plan for provision of medical care to [] inmates” (id.),

effectively absolves the Sheriff of liability for alleged lapses in

medical treatment because, by “contract[ing] with Southern Health

Partners” (id.), Defendant Shaw “does not have anything to do with

the provision of medical care to the inmates” (id.). Additionally,

the Brief in Support argues that sovereign immunity, public

official immunity, and qualified immunity shield him from suit.

(See id. at 2-5.) Finally, Defendant Shaw also sought dismissal

under Federal Rule of Civil Procedure 12(b) (6), asserting that

Plaintiff’s “bare-boned allegations .. . state[] no viable claim

against [ D]efendant [Shaw].” (Id. at 6-7.)

None of the foregoing contentions by either Defendant warrant

dismissal, for the reasons identified below.

II. DISCUSSION

A. Rule 12(b) (4) Standards

A motion to dismiss under Rule 12(b) (4) challenges “the

sufficiency of the form of the process.” Davies v. Jobs & Adverts

Online, Gmbh, 94 F. Supp. 2d 719, 721 n.5 (E.D. Va. 2000).

“Essentially, a Rule 12(b) (4) motion to dismiss objects to a defect

in the content of the documents served,” Wright v. Tyson Foods,

Inc., No. 5:18-CV-27, 2018 WL 3232776, at *1 (E.D.N.C. June 30,

2018), and “[a ] typical Rule 12(b) (4) challenge alleges that the

entity named in the summons is different from the entity named in

the complaint,” id. In the instance of a naming error, “[t]he

court may permit a summons to be amended.” Fed. R. Civ. P.

4(a) (2). “[A] court [also] has the discretion to substitute nunc

pro tunc the real party for the mistaken party following the

dismissal of the complaint [against the mistaken party].” James v.

University of N. Carolina Health Care Hosp., No. 1:18CV339, 2018 WL

4518700, at *4 (M.D.N.C. Sept. 20, 2018).

B. Rule 12(b) (2) and (5) Standards

Rather than challenge the substance of process, “[a] motion

under Rule 12(b) (5) . . . challeng[fes] the manner or sufficiency of

service of process.” Plant Genetic Sys., N.V. v. Ciba Seeds, 933

F. Supp. 519, 526 (M.D.N.C. 1996). “[T]he technical requirements

of service [found in Federal Rule of Civil Procedure 4(e)] should

be construed liberally as long as the defendant had actual notice

of the pending suit.” Elkins v. Broome, 213 F.R.D. 273, 275

(M.D.N.C. 2003). Even so, “the rules are there to be followed, and

plain requirements for the means of effecting service of process

may not be ignored.” Armco, Inc. v. Penrod-Stauffer Bldg. Sys.,

Inc., 733 F.2d 1087, 1089 (4th Cir. 1984). Rule 12(b) (2) and (5)

often go hand-in-hand because “[blefore a federal court may

exercise personal jurisdiction over a defendant, the procedural

requirement of service of summons must be satisfied.” Omni Cap.

Int’/l, Ltd. v. Rudolf Wolff & Co., 484 U.S. 97, 104 (1987); see

also Hawkins v. i-TV Digitalis Tavkozlesi zrt., 935 F.3d 211, 228

(4th Cir. 2019) (identifying, as among “fundamentals,” dictate that

“[plersonal jurisdiction requires valid service of process that

comports with due process”).

Cc. Rule 12(b) (6) Standards

“A motion to dismiss pursuant to Rule 12(b) (6) tests the

sufficiency of the claims pled in a complaint.” ACA Fin. Guar.

Corp. v. City of Buena Vista, Va., 917 F.3d 206, 211 (4th Cir.

2019). “To sufficiently plead a claim, the Federal Rules of Civil

Procedure require that a pleading . .. contain .. .a short and

plain statement of the claim showing that the pleader is entitled

to relief.” Id. (citing Fed. R. Civ. P. 8(a) (internal brackets

and quotation marks omitted)). Although “[t]his pleading standard

does not require detailed factual allegations,” id., 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)).* The Court thus need not

accept as true any “legal conclusions,” id., or “bare assertions

devoid of further factual enhancement,” Nemet Chevrolet, Ltd. v.

Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir. 2009).

As a general matter, in ruling on a Rule 12(b) (6) motion, “a

court evaluates the complaint in its entirety, as well as documents

attached or incorporated into the complaint.” E.I. du Pont de

Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 448 (4th Cir.

2011). Typically, a “court cannot go beyond these documents”

without “convert[ing] the motion into one for summary judgment.”

Id.

2 Although the Supreme Court has reiterated that “[a] document

filed pro se is to be liberally construed and a pro se complaint,

however inartfully pleaded, must be held to less” stringent

standards than formal pleadings drafted by lawyers,” Erickson v.

Pardus, 551 U.S. 89, 94 (2007) (internal citations and quotation

marks omitted), the United States Court of Appeals for the Fourth

Circuit has “not read Erickson to undermine Twombly’s requirement

that a pleading contain more than labels and conclusions,”

Giarratano v. Johnson, 521 F.3d 298, 304 n.5 (4th Cir. 2008)

(internal quotation marks omitted) (applying Twombly standard in

dismissing pro se complaint); accord Atherton v. District of

Columbia Off. of Mayor, 567 F.3d 672, 681-82 (D.C. Cir. 2009) (“A

pro se complaint . . . ‘must be held to less stringent standards

than formal pleadings drafted by lawyers.’ But even a pro se

complainant must plead ‘factual matter’ that permits the court to

infer ‘more than the mere possibility of misconduct.’” (quoting

Erickson, 551 U.S. at 94, and Iqbal, 556 U.S. at 697,

respectively)).

D. Deliberate Indifference

Courts evaluate pretrial detainees’ conditions of confinement

in state custody under the Due Process Clause of the Fourteenth

Amendment. See Bell v. Wolfish, 441 U.S. 520, 535 (1979). “The

due process rights of a pretrial detainee are at least as great as

the [E]ighth [A]mendment protections available to the convicted

prisoner.” Martin v. Gentile, 849 F.2d 863, 870 (4th Cir. 1988).

“Thus, deliberate indifference to the serious medical needs of a

pretrial detainee violates the [D]ue [P]rocess [C]lause.” Young v.

City of Mount Ranier, 238 F.3d 567, 575 (4th Cir. 2001).

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

deliberate-indifference] claim arises under the Fourteenth

Amendment, [courts] have traditionally looked to Eighth Amendment

precedents in considering a Fourteenth Amendment claim of

deliberate indifference to serious medical needs.” Mays v.

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

requires that prison officials “provide humane conditions of

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

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

511 U.S. 825, 832–33 (1994).

To make out a constitutional claim for deprivation of medical

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

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

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

7

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

so obvious that even a lay person would easily recognize the

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

omitted). A defendant displays deliberate indifference when he

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

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

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

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

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

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

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

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

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

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

indifference entails something more than mere negligence, . . .

[but] something less than acts or omissions for the very purpose of

causing harm or with knowledge that harm will result.” Farmer, 511

U.S. at 835. “It requires that a [defendant] actually know of and

disregard an objectively serious condition, medical need, or risk

of harm.” De’lonta v. Johnson, 708 F.3d 520, 525 (4th Cir. 2013)

(internal quotation marks omitted).

E. Section 1983 Liability

Section 1983 makes actionable alleged deprivations of

constitutional rights. See 42 U.S.C. § 1983. To state a viable

8

Section 1983 claim, Plaintiff must show that Defendants “deprived

[him] of a right secured by the Constitution or laws of the United

States, and that the alleged deprivation was committed under color

of state law.” American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S.

40, 49–50 (1999). “A state official can be liable in a § 1983 suit

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

in a more limited way, his supervisory capacity.” King v.

Rubenstein, 825 F.3d 206, 223 (4th Cir. 2016).

As relevant here, for personal liability, the plaintiff must

“show that the official, acting under color of state law, caused

the deprivation of a federal right.” Kentucky v. Graham, 473 U.S.

159, 166 (1985). “As a general matter, a [state actor] may incur

[Section] 1983 liability only through affirmative misconduct.”

Randall v. Prince George’s Cnty., 302 F.3d 188, 202 (4th Cir. 2002)

(quoting Parratt v. Taylor, 451 U.S. 527, 535–36 (1981)).

“[Section] 1983 must be ‘read against the background of tort

liability that makes a man responsible for the natural consequences

of his actions.’” Vinnedge v. Gibbs, 550 F.2d 926, 928 (4th Cir.

1977) (quoting Monroe v. Pape, 365 U.S. 167, 187 (1961)).

Accordingly, “it must be ‘affirmatively shown that the official

charged acted personally in the deprivation of the plaintiff’s

rights.’” Wright v. Collins, 766 F.2d 841, 850 (4th Cir. 1985)

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

9

“Official-capacity suits, in contrast, generally represent

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

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

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

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

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

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

policy or custom proximately caused the deprivation of a

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

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

F. Defendant Russell’s Motion to Dismiss

Rule 12(b)(6)

As an initial matter, Rule 12(b)(6) represents an improper

vehicle to dismiss the Complaint based on the claim that Plaintiff

“named ‘Karen Adams’ as a defendant, . . . [when] there is no

‘Karen Adams’ [only a Karen Russell] employed by or independently

contracted by Southern Health Partners, Inc. to provide medical

services at CCDC.” (Docket Entry 12 at 3.) For one, a naming

error does not bear on “the sufficiency of the claims pled in a

complaint.” ACA Fin. Guar., 917 F.3d at 211 (emphasis added).

Moreover, Defendant Russell would support her assertion of a naming

error by directing the Court to an affidavit attached to the

Supporting Brief. (See Docket Entry 12 at 3.) But the Court’s

consideration of said affidavit would “convert[] the [M]otion [to

10

Dismiss] into one for summary judgment.” E.I. du Pont, 637 F.3d at

448; see also Fed. R. Civ. P. 12(d) (“If, on a motion under Rule

12(b)(6) . . ., matters outside the pleadings are presented to and

not excluded by the court, the motion must be treated as one for

summary judgment under Rule 56.” (emphasis added)). Finally, a

dispute over the proper name on a complaint challenges “the

sufficiency of the form of the process,” Davies, 94 F. Supp. 2d at

721 n.5, and therefore arises under Rule 12(b)(4). For these

reasons, the Court should deny Defendant Russell’s Motion to

Dismiss under Rule 12(b)(6).

Rule (12(b)(4)

Although Defendant Russell’s Supporting Brief merges its

arguments under Rule 12(b)(4) and (5), the Court should consider

them separately, as the two subsections address different

components of process. First, as to Rule 12(b)(4), the Supporting

Brief argues for dismissal on the ground that Defendant Russell

“was not properly named.” (Docket Entry 12 at 3.) The Supporting

Brief contends further that “the [C]ourt may dismiss a complaint

for naming and attempting to serve the wrong party.” (Id. at 5

(citing Priast v. Dct Sys. Group, Inc., 5:14-CV-115, 2015 U.S.

Dist. LEXIS 3721, at *15 (W.D.N.C. Jan. 13, 2015)).

This argument does not support dismissal because, as the

United States Court of Appeals for the Fourth Circuit recognized

over 75 years ago, “a mere misnomer [] injure[s] no one, and there

11

is no reason why it [can]not [] be[] corrected by amendment.”

United States v. A.H. Fischer Lumber Co., 162 F.2d 872, 874 (4th

Cir. 1947). In A.H. Fischer, the Fourth Circuit held that a

district court’s dismissal under Rule 12(b) (4) of a complaint that

misnamed the defendant constituted legal error, and reversed. See

id. at 874-75 (while citing with approval “39 Am. Jur. 1002” for

the proposition that, “if the right party is before the court,

although under a wrong name, an amendment to cure a misnomer of

parties will be allowed”). Other courts in this circuit, and other

circuit courts, have similarly observed that “amendment is

preferable to dismissal when a party has been misnamed.” Ross v.

CNAC (Smart Fin.), No. 3:12-CV-827, 2013 WL 1858560, at *3

(W.D.N.C. Mar. 27, 2013), recommendation adopted, No. 3:12-CV-827,

2013 WL 1858589 (W.D.N.C. May 2, 2013); see also Roberts v.

Michaels, 219 F.3d 775, 777-78 (8th Cir. 2000) (describing as legal

error district court’s “fail[ure] to consider the well-recognized

distinction between a complaint that sues the wrong party, anda

complaint that sues the right party by the wrong name.”); Coastal

Neuro-Psychiatric Assocs., P.A. v. Onslow Cnty. Hosp. Auth., 607 F.

Supp. 49, 50 (BE.D.N.C. 1985) (denying motion to dismiss based on

misnaming of defendant).

Defendant Russell’s citation to the Priast case (Docket Entry

12 at 5) also does not support dismissal. In that case, the

plaintiff sued multiple defendants, misnaming one of them. Priast

12

v. Dct Sys. Group, Inc., 2015 U.S. Dist. LEXIS 3721, *3. The

plaintiff then moved to amend his complaint to replace the misnamed

defendant, a company, with the owner and general manager of that

company. Id. at *7. But another of the defendants had a contract

with the plaintiff, and that contract had a forum selection clause

vesting jurisdiction of disputes in the Northern District of

Georgia. Id. Because the court in Priast “transfer[red the case

to] to the Northern District of Georgia [in light of] the

[a]greement’s forum-selection clause, and since [the p]laintiff’s

Proposed Amended Complaint [sought] to name a new defendant

associated with the actual intended [defendant], [the court deemed]

dismissal of [the misnamed defendant] [as] proper.” Id. at *16.

Thus, the misnaming of a defendant in Priast provided no

independent basis for dismissal; rather, the plaintiff’s amendment

to his complaint, where he sought to remove the misnamed defendant

from the action and replace that party with the company’s owner and

general manager, warranted dismissal of the misnamed defendant.

Accordingly, the Court should deny the Motion to Dismiss on Rule

12(b)(4) grounds, and order Plaintiff to file an amended complaint

which corrects the misnomer of Karen Russell, see A.H. Fischer, 162

F.2d at 874.

Rule 12(b)(2) and (5)

Defendant Russell’s Supporting Brief also argues for dismissal

due to improper service of process. (Docket Entry 12 at 4-6.) In

13

that regard, the Supporting Brief details that, rather than serve

Defendant Russell through one of the methods prescribed by Federal

Rule of Civil Procedure 4(e) or North Carolina Rule of Civil

Procedure 4(j), Plaintiff attempted to effect service (through the

United States Marshals) at an incorrect address for Defendant

Russell’s employer, which ultimately resulted in an individual

affiliated with Defendant Russell’s employer, who “was not and is

not an agent authorized by appointment or by law to receive

process” (id. at 6) on behalf of Defendant Russell or her employer,

picking up and signing for the Summons and Complaint (see Docket

Entry 8 at 7). By attached affidavit, Defendant Russell attests

that she “ha[s] never been personally served with a copy of the

Summons and Complaint in this lawsuit” (Docket Entry 12-2 at 1) and

first learned of the lawsuit “[o]n or about January 10, 2023 [when

she] was notified of the existence of this action by counsel” (id.

at 2), after which, the next day, she “was provided a copy of the

Complaint . . . by counsel” (id. at 2).3 Plaintiff’s failure to

properly serve Defendant Russell with process, the Supporting Brief

3 Curiously, then, despite the naming error, Defendant Russell

learned of this lawsuit the day after the U.S. Marshals sent the

Summons and Complaint to the incorrect address via certified mail

(see Docket Entry 8 at 1 (noting use of “certified mail” on

“1/9/23”)) and six days prior to the employee picking up the

Summons and Complaint from the incorrect address (compare Docket

Entry 12-2 at 1, with Docket Entry 8 at 7 (letter from employee of

Defendant Russell’s employer bearing date of “01/16/2023” for when

employee “[p]icked up the . . . package”).)

14

contends, warrants dismissal under Rule 12(b)(2) and (5). (Docket

Entry 12 at 6-7.)

As mentioned previously, “the technical requirements of

service should be construed liberally as long as the defendant had

actual notice of the pending suit.” Elkins, 213 F.R.D. at 275.

But, “the rules are there to be followed, and plain requirements

for the means of effecting service of process may not be ignored.”

Armco, 733 F.2d at 1089. To that end, although “[s]ervice of

process is not freestyle, and courts are directed not to overlook

procedural deficiencies just because actual notice occurred,”

Shaver v. Cooleemee Volunteer Fire Dep’t, No. 1:07CV00175, 2008 WL

942560, at *2 (M.D.N.C. Apr. 7, 2008), “[d]ismissal under Rule

12(b)(5) is not justified where it appears that service can be

properly made,” Plant Genetic, 933 F. Supp. at 527 (internal

quotation marks omitted); see also Gregory v. U.S./U.S. Bankr. Ct.

for Dist. of Colorado, 942 F.2d 1498, 1500 (10th Cir. 1991)

(stating “general rule [] that when a court finds that service is

insufficient but curable, it generally should quash the service and

give the plaintiff an opportunity to re-serve the defendant”

(internal quotation marks omitted)); Rivera Otero v. Amgen Mfg.

Ltd., 317 F.R.D. 326, 329 (D.P.R. 2016) (curable defects in first

attempt at service of process do not warrant dismissal under Rule

12(b)(5)).

15

“[D]ismissal of a civil action for [inadequate service of

process] is inappropriate unless otherwise a party’s rights would

be seriously prejudiced or no reasonably conceivable means of

acquiring jurisdiction over the defendant remains.” Miree v.

United States, 490 F. Supp. 768, 776 (N.D. Ga. 1980). The

Supporting Brief does not attempt to establish prejudice (nor could

it, as Defendant Russell attested to learning of the suit at the

same time the U.S. Marshals attempted to mail her service of

process, notwithstanding the misnaming in the Complaint) or the

impossibility of this Court acquiring personal jurisdiction over

her. As a result, Plaintiff’s inadequate first attempt at service

(particularly where, as here, (1) Plaintiff proceeds pro se and

relies in part on the U.S. Marshals for service, and (2) Defendant

Russell suffered no apparent prejudice) does not warrant dismissal

under Rule 12(b)(2) or (5).

The Court should not, however, consider Plaintiff’s attempt at

service adequate just because Defendant Russell has actual notice

of the lawsuit. As the Fourth Circuit has made clear, “[a]ctual

notice does not equate to sufficient service of process, even under

the liberal construction of the rules applicable to a pro se

plaintiff.” Scott v. Maryland State Dep’t of Lab., 673 F. App’x

299, 305 (4th Cir. 2016); see also In re Newbrook Shipping Corp.,

31 F.4th 889, 897 (4th Cir. 2022) (“Some courts have ventured

beyond that required by the Rules to permit service by any means

16

that provides actual notice. Doing so, they have reasoned,

conserves resources that would be wasted if compliance with the

Rules was required. . . . But regardless of [the] wisdom [of that

practice], . . . [a]ctual notice with no delivery to the named

person fails to satisfy the Rule’s demands.”). Accordingly, the

Court should deny Defendant Russell’s Motion to Dismiss under Rules

12(b)(2) and (5), but order Plaintiff to properly effect service.

To assist Plaintiff (who, again, proceeds pro se) the Court should

order that Defendant Russell’s counsel (as an officer of the Court)

either (1) provide a proper address for Defendant Russell, or (2)

propose some other solution, such as agreeing to accept service on

her behalf.

G. Defendant Shaw’s Motion to Dismiss

Statutory Grounds

Defendant Shaw’s Brief in Support first contends that “NCGS §

153A-225” (Docket Entry 17 at 2) effectively absolves the Sheriff

of liability for any claims involving inadequate medical care in a

county detention facility because that statute “requires the County

to provide a plan for provision of medical care [to] inmates[,

which t]he County does [] through a contract with Southern Health

Partners, Inc.[, and accordingly t]he Sheriff . . . does not have

anything to do with the provision of medical care to the inmates”

(id.). The Supporting Brief goes on to argue that Defendant Shaw,

17

“by statute (NCGS § 153A-225)[,] is not responsible for provision

of the medical care at the [CCDC].” (Id. at 7.)

Section 153A-225 appears to establish the opposite of what

Defendant Shaw contends, by “creat[ing] a nondelegable duty on

sheriffs operating county jails to develop a plan and provide

medical services to jail inmates,” Gunter v. S. Health Partners,

Inc., No. 1:16CV262, 2021 WL 4255370, at *14 (M.D.N.C. Sept. 17,

2021) (emphasis added). In addition, “N.C. Gen.Stat. § 153A-221

. . . creates an affirmative duty on Sheriff’s [sic] operating

county jails to provide medical and mental health services to jail

inmates.” State v. Wilson, 183 N.C. App. 100, 104 (2007).

North Carolina law thus codifies Defendant Shaw’s duty, as

Sheriff of Cabarrus County, to provide medical care to jail

inmates; the statute does not, and could not, absolve him of such

a duty. See Medley v. North Carolina Dep’t of Correction, 330 N.C.

837, 844 (1992) (holding that “the duty to provide adequate medical

care to inmates, . . . recognized in state statute and caselaw, is

such a fundamental and paramount obligation of the state that the

state cannot absolve itself of responsibility by delegating it to

another” (emphasis added)). As “[s]everal district courts,

including th[is one and others] in this circuit, have [] concluded

[], when contracting out medical care of inmates to third parties,

local governments have a continuing obligation to ensure the

provision of adequate inmate medical care under the Eighth

18

Amendment.” Simmons v. Corizon Health, Inc., 122 F. Supp. 3d 255,

266 (M.D.N.C. 2015) (citing cases). In sum, Defendant Shaw’s

statutory argument lacks merit, and the Court should deny his

Motion to Dismiss on those grounds.

Immunity Grounds

Defendant Shaw’s Brief in Support further argues’ for

dismissal, citing three different forms of immunity. (Docket Entry

17 at 2-5.) None apply to Defendant Shaw in this case.

First, the Brief in Support cites Eleventh Amendment sovereign

immunity. “Eleventh Amendment immunity protects .. . states[,]

. . State agents[,] and state instrumentalities.” Bland v.

Roberts, 730 F.3d 368, 389-90 (4th Cir. 2013) (referencing Will v.

Michigan Dep’t of State Police, 491 U.S. 58, 70-71 (1989), and

Regents of the Univ. of Cal. v. Doe, 519 U.S. 425, 429 (1997),

respectively). “The Eleventh Amendment, however, affords no

protection to local government entities and employees.” Harter v.

Vernon, 101 F.3d 334, 337 (4th Cir. 1996). North Carolina Sheriffs

qualify as local, not state, government officials, and thus cannot

avail themselves of Eleventh Amendment Immunity. See id. at 343

(holding that “the Eleventh Amendment does not bar a suit against

a North Carolina sheriff in his official capacity”); Cash □□

Granville Cnty. Bd. of Educ., 242 F.3d 219, 226 (4th Cir. 2001)

(citing Harter with approval in noting that “a county sheriff’s

duties in North Carolina can be primarily local”). Accordingly,

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Eleventh Amendment Immunity offers Defendant Shaw no relief, and

provides no basis for dismissal.

Second, the Brief in Support cites “public official immunity,

a form of governmental immunity.” (Docket Entry 17 at 3; see also

id. at 4 (describing “doctrine of governmental immunity [a]s

clearly applicable to [ Defendant Shaw] in this case, as he was

sued in his official capacity“).) But public official immunity

represents a “state law defense[],” Knibbs v. Momphard, 30 F.4th

200, 213 (4th Cir. 2022), to claims arising under state law, see

Hensley on behalf of N. Carolina v. Price, 876 F.3d 573, 587 (4th

Cir. 2017) (evaluating applicability of public official immunity to

“plaintiffs’ N[egligent] I[nfliction of] E[motional] D[istress] and

wrongful death claims” arising under North Carolina law). Because

Plaintiff’s claim here arises under Section 1983 (a federal law),

public official immunity affords no relief to Defendant Shaw.

Finally, the Brief in Support references qualified immunity.

(Docket Entry 17 at 4.) Although the Brief in Support does not

fully develop an argument as to qualified immunity, it does note

that “[q]ualified immunity can protect local government officers

from personal liability for violations of an individual’s rights

under federal law.” (Id. (emphasis added).) This explanation of

qualified immunity demonstrates its inapplicability in this case:

“an official sued in his personal capacity may raise personal

immunity defenses such as absolute or qualified immunity, however,

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these types of immunity are unavailable for an official sued in his

official capacity.” Benton v. Layton, No. 3:22-CV-225, 2022 WL

4274121, at *4 (E.D. Va. Sept. 15, 2022); see also Kentucky v.

Graham, 473 U.S. 159, 166–67 (1985) (holding that, “[w]hen it comes

to defenses to liability, an official in a personal-capacity action

may . . . be able to assert . . . qualified immunity,” but that,

“[i]n an official-capacity action, th[is] defense[ is] unavailable”

(internal citations and parentheses omitted)). Plaintiff here sued

Defendant Shaw only in his official capacity, not his individual

capacity. (See Docket Entry 2 at 2 (checking “Official capacity”

box, but not “Individual capacity” box under Defendant Shaw).)

Defendant Shaw cannot raise a qualified immunity defense to an

official capacity suit.

Because sovereign immunity, public official immunity, and

qualified immunity do not apply in this case, the Court should deny

Defendant Shaw’s Motion to Dismiss on immunity grounds.

Rule 12(b)(6)

Finally, Defendant Shaw’s Brief in Support argues for

dismissal under Rule 12(b)(6), stating that “[t]he [C]omplaint

states no viable claim upon which relief may be granted against

[ D]efendant [Shaw]. There are some bare-boned allegations by

[ P]laintiff concerning being denied treatment for Hepatitis C, but

the [C]omplaint alleges no specific facts . . . .” (Docket Entry

17 at 6.) The Court should reject this final argument. As

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explained previously, to raise a constitutional claim for

deprivation of medical care, a plaintiff must show that a defendant

“acted with ‘deliberate indifference’ (subjective) to [the

plaintiff’s] ‘serious medical needs’ (objective).” Iko, 535 F.3d

at 241. Hepatitis C “qualifies as a serious medical condition and

thus satisfies the objective component of [Plaintiff’s] deliberate

indifference claim.” Gordon v. Schilling, 937 F.3d 348, 356 (4th

Cir. 2019); see also Brown v. Johnson, 387 F.3d 1344, 1351 (11th

Cir. 2004) (noting that defendants “wisely do not deny that”

Hepatitis C constitutes a serious medical need).

As for Defendant Shaw’s alleged deliberate indifference, the

Complaint asserts that the “[CCDC] (Van Shaw) . . . ha[s] refused

[Plaintiff] treatment for Hepatitis C” (Docket Entry 2 at 4), and

that said refusal represents a policy of the CCDC (see id. at 5

(“[The CCDC] (Van Shaw) stated that they won’t treat me at [the

CCDC] due to the possibility of [Plaintiff] being released[, and

that ] it[’s] just standard.”).) Federal courts have recognized

that a failure to provide Hepatitis C treatment to inmates,

including pretrial detainees in jail, can form the basis of a claim

for deliberate indifference. See, e.g., Allah v. Thomas, 679 F.

App’x 216, 220–21 (3d Cir. 2017) (vacating district court dismissal

because allegation that prison inmate “did not receive any

treatment for his Hepatitis C condition” plausibly set forth an

Eighth Amendment claim); Wood v. Clear, No. 7:20-CV-00719, 2021 WL

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4443078, at *4 (W.D. Va. Sept. 28, 2021) (ruling jail

superintendent not deliberately indifferent to inmate’s needs for

Hepatitis C treatment because, “[a]lthough [the plaintiff’s] lab

work confirmed the presence of hepatitis C, the medical staff

determined that [the plaintiff] did not meet the guidelines for

treatment because his liver function levels fell within normal

limits”); Conrad v. Akers, No. 7:10-CV-00560, 2011 WL 3847017, at

*9 (W.D. Va. Aug. 30, 2011) (finding jail doctor not deliberately

indifferent to medical needs of pretrial detainee with Hepatitis C

because doctor “frequently met with [the] plaintiff while he was at

the Jail, ordered blood tests, referred [the] plaintiff to a

specialist and the emergency room when necessary, and authorized

various prescriptions”).

Taking the Complaint’s well-pleaded allegations as true, the

CCDC (through Defendant Shaw) employs a policy of refusing

Hepatitis C treatment to pretrial detainees. (See Docket Entry 2 at

16 (note from nurse to Plaintiff stating “we do not treat

Hep[atitis C] on the county level”).) Such a policy may yet pass

constitutional muster. See Crigger v. Wright, No. 1:15CV713, 2016

WL 1626580, at *4 (E.D. Va. Apr. 20, 2016) (granting summary

judgment in favor of defendants where jail policy refused inmates

Hepatitis C treatment because “deferring treatment [until inmate

entered department of corrections custody] would allow [the]

plaintiff the advantage of being able to receive the full course of

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treatment without interruption, which is believed by the medical

community to be advantageous”); but see id. at *2 (noting that

newer Hepatitis C drug with shorter treatment cycle “was not an

available treatment regimen” at the jail in 2015), *4 (affirming

jail policy which provided that, “in the absence of acute

symptoms[,] treatment for Hepatitis C is not initiated while an

inmate is confined in a local jail” (emphasis added)). But, at

this stage of the proceedings, Plaintiff plausibly sets forth a

claim for deliberate indifference to his Hepatitis C, a serious

medical need. The Court should therefore deny Defendant Shaw’s

Motion to Dismiss on Rule 12(b)(6) grounds.

III. CONCLUSION

IT IS THEREFORE RECOMMENDED that:

1) Both Motions to Dismiss (Docket Entry 11; Docket Entry 16)

be denied;

2) Defendant Russell’s counsel either (1) provide a correct

address for Defendant Russell, or (2) propose another solution;

3) Plaintiff submit an amended complaint correcting Defendant

Russell’s name; and

4) Plaintiff properly effect service on Defendant Russell.

This 12th day of April, 2023.

/s/ L. Patrick Auld

L. Patrick Auld

United States Magistrate Judge

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