# CONNELL v. RUSSELL, PA-C

> District Court, M.D. North Carolina · April 12, 2023

URL: https://www.frixlaw.com/law-library/cases/10254342

## Case

- **Court:** District Court, M.D. North Carolina
- **Decided:** April 12, 2023
- **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/10254342

## How later opinions describe it (automated extraction)

- 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)
- 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.”

## Opinion text

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,

19

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,
20
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
21
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
22
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
23
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
24

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10254342. Public record. Not legal advice.