CLINTON v. SLAGLE

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

REGINALD DEVORE CLINTON, )

)

Plaintiff, )

)

v. ) 1:20cv1078

)

SGT. SLAGLE, et al., )

)

Defendants. )

MEMORANDUM OPINION, ORDER, AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

This case comes before the Court on the “Summary Judgment

Motion” (Docket Entry 42) (“Plaintiff’s Summary Judgment Motion”)

filed by Reginald DeVore Clinton (the “Plaintiff”),1 “Defendant’s

Motion for Summary Judgment Fed. R. Civ. P. 56” (Docket Entry 51)

(“Defendant’s Motion”) filed by Travis Campbell (the “Defendant” or

“Sgt. Campbell”), and Plaintiff’s (i) “Motion for Expert Witness

Testimony” (Docket Entry 45) (the “Expert Motion”), (ii) “Motion

for Adequate Access” (Docket Entry 47) (the “Access Motion”),

(iii) “Motion for Appointment of Counsel” (Docket Entry 49) (the

“Appointment Motion”), and (iv) “Motion for Appointment of Person

to Record and Take Depositions” (Docket Entry 60) (the “Deposition

Motion”). For the reasons that follow, the Court (i) should deny

Plaintiff’s Summary Judgment Motion and Defendant’s Motion

1 For legibility reasons, this Opinion uses standardized

capitalization and spelling and omits the word “the” in front of

“Plaintiff” and “Defendant” in all quotations from the parties’

materials.

(collectively, the “Summary Judgment Motions”), (ii) will deny the

Expert Motion and Deposition Motion (collectively, the “Witness

Motions”), and (iii) will grant the Access Motion and Appointment

Motion (collectively, the “Legal Assistance Motions”) as specified

herein.

BACKGROUND

Plaintiff, a convicted state prisoner (Docket Entry 2 (the

“Complaint”) at 4),2 initiated this lawsuit under 42 U.S.C. § 1983

against “Sgt. Slagle” and “Sgt. Campbell” at “Forsyth Correctional

[Center]” (id. at 2), for allegedly violating Plaintiff’s “[r]ight

to receive immediate medical attention when medical issue is

reported” and “[c]ruel and unusual punishment by forcing attendance

to school while visible swelling and redness of leg is apparent”

(id. at 3) for incidents occurring between 8:45 p.m. on May 19,

2019, and 7:15 a.m. on May 21, 2019 (id. at 5), “[a]t Forsyth

Correctional [Center]” (id. at 4). More specifically, (as

previously documented by the undersigned Magistrate Judge) the

Complaint alleges:

[On May 19, 2019, Plaintiff] “woke up feeling

nauseous, shaking with cold chills and experiencing pain

in [his] lower left leg.” [He] reported this to [Sgt.]

Slagle at 8:45 p.m[.] and she replied that these

“sym[p]toms were not an emergency” and instructed

Plaintiff to fill out a regular sick call. Plaintiff did

so and laid back down. He awakened the next morning

“with visible swelling in [his] leg and at 7:08 am [he]

2 Docket Entry page citations utilize the CM/ECF footer’s

pagination.

2

reported these sym[p]toms to [Sgt.] Campbell and showed

him [the] leg and told [Sgt. Campbell Plaintiff] needed

to remain on campus to see the nurse. However, [Sgt.]

Campbell . . . told Plaintiff to “‘Get on the bus or get

a write up.’” [Accordingly, Sgt.] Slagle violated

Plaintiff’s rights by not acting after being informed of

Plaintiff’s need for medical attention and . . . [Sgt.]

Campbell violated [Plaintiff’s] rights by forcing him “to

attend school by threatening ‘get on the bus or get a

write-up’ while visible swelling and redness o[n

Plaintiff’s] leg was obvious to any untrained eye.” The

Complaint is not specific about the events that occurred

next or the cause of the issues with Plaintiff’s leg.

However, the problem . . . resulted in a 21-day stay in

the hospital, “[p]ermanent damage and discoloration on

[Plaintiff’s] lower left leg,” “acute kidney disease that

now requires medication,” wound care, hose, and medical

socks and shoes. Plaintiff also reports “[c]onstant

swelling and fluid on [his] lower left leg.”

(Docket Entry 3 at 3-4 (certain brackets in original) (citations

omitted) (quoting Docket Entry 2 at 4-5).) As relief for

Plaintiff’s claims, the Complaint seeks “[a]ctual damages,”

described as the “cost of supplies and medical in [the] future,”

and “punitive damages,” described as “loss of future earning

potential and medical deficiency caused by damage to leg.” (Docket

Entry 2 at 5.)

The Complaint further reflects that, at the time of its

filing, Plaintiff had a pending North Carolina Industrial

Commission case regarding Sgt. Slagle’s and Sgt. Campbell’s alleged

actions, which “[was] waiting on [a] trial date.” (Id. at 9.)

Following an evidentiary hearing in March 2021, see Clinton v.

North Carolina Dep’t Public Safety, No. TA-27986, slip op. at 1

(N.C. Indus. Comm’n May 10, 2021), available at

3

https://ic.nc.gov/livelink/livelink.exe?func=ll&objId=347536&objA

ction=viewversionheader&vernum=1 (last visited Nov. 3, 2022), the

Industrial Commission found that Sgt. Campbell breached his “non-

delegable duty to ensure [Plaintiff, as an] inmate[] under [Sgt.

Campbell’s] control[,] w[as] provided medical attention,” id. at

7.3 The Industrial Commission further found that “the negligence

of S[gt.] Campbell proximately caused Plaintiff pain and suffering

in the form of ongoing symptoms of chills, nausea, vomiting, pain,

and swelling of the lower left leg.” Id. at 8. However, the

Industrial Commission concluded that “[t]he cause of Plaintiff’s

lower left leg cellulitis, rhabdomyolysis, and kidney injury is a

complicated medical question in which competent expert testimony is

required,” which Plaintiff apparently failed to present. Id.; see

id. at 6. Accordingly, the Industrial Commission awarded Plaintiff

$400 “for pain and suffering resulting from the failure of S[gt.]

Campbell to arrange for Plaintiff to receive medical attention for

his symptoms.” Id. at 8.

Meanwhile, reviewing the Complaint under 28 U.S.C. § 1915A,

the Court permitted Plaintiff to maintain a claim for deliberate

indifference to a serious medical need against Sgt. Campbell, but

dismissed Plaintiff’s claim against Sgt. Slagle for failure to

3 Conversely, the Industrial Commission “conclude[d] that

Plaintiff ha[d] not met his burden of proving by a preponderance of

the evidence that S[gt.] Slagle’s failure to call a medical

emergency constituted a negligent breach of the duty owed to

Plaintiff.” Id.

4

state a claim upon which relief may be granted. (See Docket Entry

6 at 1; see also Docket Entry 3 at 1-5.) Thereafter, the Court

(per the undersigned Magistrate Judge) entered a Scheduling Order

specifying that, inter alia, “the parties shall complete discovery

by [March 3, 2022].” (Text Order dated June 23, 2021.) On January

31, 2022, Plaintiff submitted a “Motion to Compel,” which

requested, inter alia, that the Court “subpoena Plaintiff’s expert

witnesses” and that the “discovery period end[] as scheduled and

[a] trial date issue[].” (Docket Entry 25 at 1.) In pertinent

part, the Court (per the undersigned Magistrate Judge) deemed the

motion unripe and moot, explaining:

[D]espite [Plaintiff’s supporting brief’s] (mistaken)

suggestion (through its cryptic reference to [an

a]ttachment) that Defendant bore some duty to help

Plaintiff secure depositions of four non-parties (two

doctors and two nurses), [Plaintiff’s] Brief makes clear

that Plaintiff does not seek subpoenas for depositions of

those (or any other witnesses), but rather requests trial

subpoenas for those four “expert” witnesses. Finally,

the discovery period has now passed without any extension

. . . . Under these circumstances, [the m]otion’s

request for a court order maintaining the discovery

deadline is moot [and] its requests for court orders

setting a trial date and subpoenaing witnesses for trial

are premature (and thus unripe) . . . . If the parties

ultimately do not file any timely dispositive motions

and/or if any timely filed dispositive motions do not

resolve all issues in this case, the Clerk will set the

case for trial, at which time Plaintiff may file a proper

motion for issuance of subpoenas (which shall include

certification that Plaintiff can and will provide funds

necessary to pay the required witness fees and mileage,

which his pauper status does not cover).

(Text Order dated Apr. 26, 2022.)

5

The parties thereafter filed the Summary Judgment Motions.

(See Docket Entries 42, 51.) Plaintiff initially failed to verify

his summary judgment materials. (See Docket Entries 42, 43.)

However, after Defendant asserted that “Plaintiff provides no

evidence,” but “merely offers allegations in this matter” (Docket

Entry 52 at 3), Plaintiff verified under penalty of perjury “all

claims, motions[,] and statements [that he] submitted” (Docket

Entry 56-1 at 16; accord Docket Entry 60 at 2). Accordingly, as

relevant to the Summary Judgment Motions, the record reflects the

following:

First, Sgt. Campbell has averred that he worked for the North

Carolina Department of Public Safety (the “NCDPS”) from 2012 until

January 2021. (Docket Entry 53-1, ¶ 2.) While employed at the

NCDPS, Sgt. Campbell reportedly “was a member of the custody staff,

not the medical staff.” (Id., ¶ 4.) His affidavit further

related:

As a member of custody staff, [Sgt. Campbell] did

not have a role in facilitating the requests for medical

care. [Sgt. Campbell] cannot [sic] discuss medical

conditions with any offenders. [Sgt. Campbell] had no

involvement with the sick call process. Sick calls were

handled by medical staff only. [Sgt. Campbell] advised

all offenders to fill out a sick call request and place

it in the sick call secured box that only medical staff

have access to.

(Id., ¶ 5.)

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Sgt. Campbell continued:

“On the morning of May 20, 2019, [Sgt. Campbell] was the

officer-in-charge (‘OIC’) at Forsyth [Correctional Center].” (Id.,

¶ 6.) “Between 6:30 am and 8:00 am that morning, as OIC, [Sgt.

Campbell] managed approximately 130 offenders who were departing

the facility either for work with the Department of Transportation,

other work release jobs, or the Dobson School.” (Id., ¶ 7.)

“Plaintiff was assigned to attend the Dobson School that morning.”

(Id., ¶ 8.) “At approximately 6:45 am that morning, two transfer

buses were loaded with offenders, and [Sgt. Campbell] was stationed

in the sergeant’s office.” (Id., ¶ 9.) “[Sgt. Campbell] oversaw

the departures, but [he] was not one of the correctional staff

stationed at the buses making sure that the offenders got on their

buses.” (Id., ¶ 10.)

“If an offender did not arrive at the bus for loading, the

officers at the buses would call [Sgt. Campbell] over the radio.”

(Id., ¶ 11.) “When [Sgt. Campbell] was told over the radio that an

offender was not at the Dobson bus, [Sgt. Campbell] was to make an

announcement to the effect of, ‘Offender [name], report to Dobson

bus; they are waiting for you; either report or receive a possible

disciplinary.’” (Id., ¶ 12 (final set of brackets in original).)

“An offender who fails to report to work or school may be charged

with a Class B Disciplinary Offense pursuant to NCDPS Policy and

Procedure B.0200, Offender Disciplinary Procedures, specifically:

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(B12) Leave, quit without authorization, fail to report, or neglect

to adhere to approved schedules for community-based programs.”

(Id., ¶ 13.)

“[Sgt. Campbell] ha[s] no training in the field of medicine.”

(Id., ¶ 14.) “However, if [Sgt. Campbell] had seen Plaintiff’s leg

on May 20, 2019, and if it was obviously swollen, [Sgt. Campbell]

would not have required [Plaintiff] to go to the Dobson School on

May 20, 2019. Rather, [Sgt. Campbell] would have had [Plaintiff]

report immediately to [the] medical unit.” (Id., ¶ 15.) “Also, if

Plaintiff had appeared obviously ill on May 20, 2019, [Sgt.

Campbell] would not have required [Plaintiff] to go to the Dobson

School on that day. Rather, [Sgt. Campbell] would have had

[Plaintiff] report immediately to [the] medical unit.” (Id.,

¶ 16.) “[Sgt. Campbell] do[es] not know if Plaintiff actually

filled out a sick call on May 19, 2019, but if he did, then by the

next day, [the] camp nurse would have called [Sgt. Campbell] to

have Plaintiff held in the prison facility for that day.” (Id.,

¶ 17.) “The camp nurse did not call [Sgt. Campbell] to have

Plaintiff held in the prison facility for May 20, 2019, and there

was otherwise no medical hold on Plaintiff on May 20, 2019.” (Id.,

¶ 18.) “[Sgt. Campbell] did not know of, nor did [he] purposely

ignore, any serious medical or other needs of Plaintiff.” (Id.,

¶ 19.)

8

By contrast, Plaintiff’s evidence reflects:

Around 8:45 p.m. on Sunday, May 19, 2019, “Plaintiff began

experiencing chills, nausea, pain and swelling in his lower left

leg after scraping/cutting his left leg on a rusted bathroom door

while getting out of the shower.” (Docket Entry 43 at 2.)

Plaintiff reported these symptoms to Sgt. Slagle, who directed him

to complete a regular sick call request. (Docket Entry 2 at 5;

Docket Entry 43 at 2.) Plaintiff complied with this directive “and

laid back down in pain shaking with cold chills” (Docket Entry 2 at

5). (See also Docket Entry 43 at 2.)

On Monday, May 20, 2019, Plaintiff was scheduled to attend the

Dobson School (see Docket Entry 56-1 at 6, 11), “located

approximately 45 miles from Forsyth Correctional [Center]” (Docket

Entry 43 at 1). “[I]nmates are transported [to the Dobson School]

via bus on a daily basis.” (Id.) Medical staff do not work on

weekends and do not arrive at Forsyth Correctional Center until

8 a.m. on weekdays, by which time all buses for the Dobson School

have left the facility. (Docket Entry 56-1 at 11.) As such, “it

[would have been] impossible for medical staff to call Defendant to

put a medical hold on Plaintiff prior to 8 a.m. on [Monday,] May

20, 2019.” (Id.) Regardless, under NCDPS policy, non-medical

“custodial staff are trained and instructed to contact next level

management authority” to “give them the symptoms of the medical

complaint reported [by an inmate] and allow next level managing

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authority [to] decide if immediate outside care is necessary when

there is no unit medical provider on-site.” (Id. at 6.)

On May 20, 2019, Plaintiff awoke with visible swelling in his

leg. (Docket Entry 2 at 5.) Around 7 a.m. (see id.), “[a]fter

being paged to report to the bus for school, Plaintiff reported to

[the] bus visibly limping and asked the officer to be excused to

see medical.” (Docket Entry 56-1 at 5.) The officer told

Plaintiff that “[he] ha[d] to ask the OIC.” (Id. (internal

quotation marks omitted).)

Plaintiff then walked to the Sergeant’s Office, “visibly

limping,” and “show[ed] Defendant both legs, the left leg visibly

swollen larger than the right, red and irritated.” (Id.) Further,

Plaintiff “verbally report[ed] ‘feeling nauseous, shaking with cold

chills[,] and experiencing pain in [his] lower left leg.’” (Id.)

Plaintiff “additionally informed Sgt. Campbell that [Plaintiff] had

submitted a sick call form for this matter.” (Id.) He also told

Sgt. Campbell that “[he] needed to remain on campus to see the

nurse,” but “Sgt. Campbell said[,] ‘Get on the bus or get a write

up.’” (Docket Entry 2 at 5; see also Docket Entry 43 at 2

(explaining that, after Plaintiff showed Defendant his injury and

informed Defendant that Plaintiff “was experiencing chills, nausea,

pain, and swelling in [his] lower [left leg and] asked to be

excused from school to see medical,” Defendant “ordered Plaintiff

to ‘get on the bus for school or get a write-up’” and “Plaintiff

10

complied with [the] order”); Docket Entry 56-1 at 5 (“Sgt. Campbell

informed [Plaintiff] that [he] did not have a medical hold on [him]

and that [he] could ‘get on the bus or get a write-up.’”).) At the

Industrial Commission hearing, another inmate similarly testified

to witnessing “Plaintiff walk to the Sgt. Office visibly limping,

hear[ing] Plaintiff ask[] Defendant to remain at [the] facility,

hear[ing] Defendant tell Plaintiff [to] ‘get on the bus or get a

write-up,’” and seeing Plaintiff’s “legs on the bus, the left leg

visibly larger, swollen, red and irritated.” (Docket Entry 56-1 at

8.)

Also at the Industrial Commission hearing, “Sgt. Kennedy

testified that it is protocol at Forsyth Correctional [Center] to

excuse sick inmates from attending the Dobson School until cleared

by medical.” (Id. (internal quotation marks omitted).) This

protocol exists because of a “lack of medical providers at the

Dobson School and the amount of time it takes to transport an

inmate back to Forsyth [Correctional Center if] the[ inmate]

require[s] medical attention” (id. (internal quotation marks

omitted)). Accord Clinton, slip op. at 4. Defendant’s refusal to

excuse Plaintiff from attending the Dobson School to receive

medical treatment caused “Plaintiff to endure additional and

unnecessary pain and suffering in the form of ongoing symptoms of

chills, nausea, vomiting, pain[,] and swelling of [his] lower left

leg.” (Docket Entry 56-1 at 7; accord Docket Entry 43 at 8.)

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Plaintiff continued experiencing symptoms on May 20, 2019,

including vomiting at lunch at the Dobson School. (See Docket

Entry 43 at 3.) Sgt. Kennedy instructed Plaintiff to see medical

before he returned to the Dobson School. (Id.; see also Docket

Entry 56-1 at 8 (indicating that “it is protocol . . . to excuse

sick inmates from attending the Dobson School until ‘cleared by

medical’” (certain internal quotation marks omitted)).) However,

when Plaintiff returned to Forsyth Correctional Center, “medical

was gone for the day.” (Docket Entry 43 at 3.) The following day,

Sgt. Campbell again paged Plaintiff to report to the bus for the

Dobson School, but Sgt. Kennedy intervened and “instructed

Plaintiff to remain on campus to see medical.” (Id.)

When Nurse Meadows arrived at the facility on May 21, 2019,

she examined Plaintiff. (See id.) She reported that “Plaintiff’s

lower left leg was swollen with pitting edema and was hot to touch

and painful.” (Id.) “After conferring with a physician, Nurse

Meadows arranged for Plaintiff to be transported to the emergency

department at Novant Health Forsyth Hospital.” (Id.) “Plaintiff

was admitted to [the hospital on May 21, 2019,] with severe lower

left leg cellulitis and rhabdomyolysis, resulting in acute kidney

injury[,] and remained hospitalized until [June 10,] 2019.” (Id.)

Plaintiff continues to take medicine to reduce his leg swelling,

wears compression socks and hose, and experiences areas of skin

discoloration on his leg. (Id.) In sum, Defendant’s actions

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“caused Plaintiff to endure [his] symptoms for more than 24

additional hours, which resulted in [his] extended

hospitalization,” and “allowed [the] infection to enter into

Plaintiff’s bloodstream,” causing various adverse results. (Id. at

8.)

DISCUSSION

I. Summary Judgment Motions

A. Summary Judgment Standards

“The [C]ourt shall grant summary judgment if the movant shows

that there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” Fed. R. Civ.

P. 56(a). A genuine dispute of material fact exists “if the

evidence is such that a reasonable jury could return a verdict for

the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 248 (1986). The movant bears the burden of establishing the

absence of such dispute. See Celotex Corp. v. Catrett, 477 U.S.

317, 323 (1986).

In analyzing a summary judgment motion, the Court “tak[es] the

evidence and all reasonable inferences drawn therefrom in the light

most favorable to the nonmoving party.” Henry v. Purnell, 652 F.3d

524, 531 (4th Cir. 2011) (en banc). In other words, the nonmoving

“party is entitled ‘to have the credibility of his evidence as

forecast assumed, his version of all that is in dispute accepted,

[and] all internal conflicts in it resolved favorably to him.’”

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Miller v. Leathers, 913 F.2d 1085, 1087 (4th Cir. 1990) (en banc)

(brackets in original) (quoting Charbonnages de France v. Smith,

597 F.2d 406, 414 (4th Cir. 1979)). If, applying this standard,

the Court “find[s] that a reasonable jury could return a verdict

for [the nonmoving party], then a genuine factual dispute exists

and summary judgment is improper.” Evans v. Technologies

Applications & Serv. Co., 80 F.3d 954, 959 (4th Cir. 1996).

Nevertheless, “[o]nly disputes over facts that might affect

the outcome of the suit under the governing law will properly

preclude the entry of summary judgment.” Anderson, 477 U.S. at

248. Moreover, “the non-moving party may not rely on beliefs,

conjecture, speculation, or conclusory allegations to defeat a

motion for summary judgment.” Lewis v. Eagleton, No. 4:08-cv-2800,

2010 WL 755636, at *5 (D.S.C. Feb. 26, 2010) (citing Baber v.

Hospital Corp. of Am., 977 F.2d 872, 874-75 (4th Cir. 1992)),

aff’d, 404 F. App’x 740 (4th Cir. 2010); see also Pronin v.

Johnson, 628 F. App’x 160, 161 (4th Cir. 2015) (explaining that

“[m]ere conclusory allegations and bare denials” or the nonmoving

party’s “self-serving allegations unsupported by any corroborating

evidence” cannot defeat summary judgment). Further, factual

allegations in a complaint or other court filing constitute

evidence for summary judgment purposes only if sworn or otherwise

made under penalty of perjury. See Reeves v. Hubbard, No.

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1:08cv721, 2011 WL 4499099, at *5 n.14 (M.D.N.C. Sept. 27, 2011),

recommendation adopted, slip op. (M.D.N.C. Nov. 21, 2011).

“[W]here affidavits present conflicting versions of the facts

which require credibility determinations, summary judgment cannot

lie.” Raynor v. Pugh, 817 F.3d 123, 130 (4th Cir. 2016) (internal

quotation marks omitted). However, “[w]hen opposing parties tell

two different stories, one of which is blatantly contradicted by

the record, so that no reasonable jury could believe it, a court

should not adopt that version of the facts for purposes of ruling

on a motion for summary judgment.” Scott v. Harris, 550 U.S. 372,

380 (2007); see also, e.g., Love v. Beasley, 788 F. App’x 935, 937

(4th Cir. 2020) (concluding, on review of summary judgment

decision, “that the district court did not err in finding that [a

defendant] did not punch [the plaintiff] as alleged, because video

of the incident confirms [the defendant’s] denial”). Notably,

though, in Scott,

the [United States] Supreme Court was faced with a

videotape of the incident in question that “utterly

discredited” the plaintiff’s account, rendering it a

“visible fiction.” 550 U.S. at 380–81. As between a

videotape of undisputed authenticity, id. at 378, and the

plaintiff’s story, the Court held, the videotape should

prevail. Where the nonmoving plaintiff’s account is

“blatantly contradicted by the record” so that “no

reasonable jury could believe it,” it should not be

adopted by a court ruling on a motion for summary

judgment. Id. at 380.

As [the United States Court of Appeals for the

Fourth Circuit] ha[s] clarified, Scott is the exception,

not the rule. It does not “abrogate the proper summary

judgment analysis, which in [resolving defendants’

15

summary judgment motions in] qualified immunity cases

‘usually means adopting . . . the plaintiff’s version of

the facts.’” Witt v. W. Va. State Police, Troop 2, 633

F.3d 272, 276 (4th Cir. 2011) (quoting Scott, 550 U.S. at

378). That standard continues to apply in the face of

“documentary evidence” that lends support to a government

official’s account of events, id., or even makes it

“unlikely” that the plaintiff’s account is true, United

States v. Hughes, 606 F.3d 311, 319–20 (6th Cir. 2010)

(holding that Scott does not apply to photographs

rendering plaintiff’s account “unlikely”). Summary

judgment is proper under Scott only when there is

evidence — like the videotape in Scott itself — of

undisputed authenticity that shows some material element

of the [opposing party’s] account to be “blatantly and

demonstrably false.” Blaylock v. City of Phila., 504

F.3d 405, 414 (3d Cir. 2007) (refusing to extend Scott to

evidence in form of police photographs that fail to

depict “all of the defendant’s conduct and all of the

necessary context”); see also Witt, 633 F.3d at 277

(holding Scott inapplicable to soundless video that does

not capture key disputed facts).

Harris v. Pittman, 927 F.3d 266, 275–76 (4th Cir. 2019) (ellipsis

in original) (parallel citations omitted).

B. Deliberate Indifference Standard

“It is undisputed that the treatment a prisoner receives in

prison and the conditions under which he is confined are subject to

scrutiny under the Eighth Amendment.” Helling v. McKinney, 509

U.S. 25, 31 (1993). To establish a constitutional claim regarding

his medical care, Plaintiff must show that Defendant “acted with

‘deliberate indifference’ (subjective) to [his] ‘serious medical

needs’ (objective).” Iko v. Shreve, 535 F.3d 225, 241 (4th Cir.

2008) (citing Estelle v. Gamble, 429 U.S. 97, 104 (1976)).

A medical need qualifies as serious if it “has been diagnosed

by a physician as mandating treatment or . . . is so obvious that

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even a lay person would easily recognize the necessity for a

doctor’s attention.” Id. (internal quotation marks omitted). A

defendant displays deliberate indifference where 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 v. Brennan, 511 U.S. 825, 837 (1994))).

“[D]eliberate indifference entails something more than mere

negligence, . . . [but] is satisfied by 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). A plaintiff can satisfy this standard by showing

“that a [defendant] knew of a substantial risk from the very fact

that the risk was obvious.” Scinto, 841 F.3d at 226 (internal

quotation marks omitted). In addition, “‘[f]ailure to respond to

an inmate’s known medical needs raises an inference [of] deliberate

indifference to those needs.’” Id. (brackets in original) (quoting

17

Miltier v. Beorn, 896 F.2d 848, 853 (4th Cir. 1990), overruled in

part on other grounds by Farmer, 511 U.S. at 837).

A. Plaintiff’s Summary Judgment Motion

According to Plaintiff, Defendant violated the Eighth

Amendment and acted with deliberate indifference “when he ordered

Plaintiff to board the bus and go to school on May 20, 2019[,]

after being informed [that] Plaintiff was sick and had placed a

sick call request” (Docket Entry 43 at 5) and being “show[n

Plaintiff’s] leg injury” (id. at 6). (See also id. at 11

(“Defendant displayed reckless and callous indifference to

Plaintiff’s medical need by ordering Plaintiff to get on the bus

for school or get a write up after Plaintiff showed Defendant his

injury[ and] informed Defendant of [his] sickness and the fact that

Plaintiff had turned in a sick call to see medical.”).) Plaintiff

further asserts that Defendant’s affidavit does not preclude

summary judgment in Plaintiff’s favor, on the theory that

“Defendant’s version [of events] ‘is blatantly contradicted by the

record, so that no reasonable jury could believe it.’” (Docket

Entry 56-1 at 9 (quoting Scott, 550 U.S. at 380).) For instance,

Plaintiff contends that “[i]t is impossible for Defendant to

definitely state, ‘The camp nurse did not call me’ and ‘there was

no medical hold on Plaintiff on May 20, 2019,’ but . . . not recall

seeing Plaintiff or Plaintiff’s leg,” as the phrasing of his

affidavit suggests. (Id. (noting affidavit’s “if I had seen, if it

18

was obviously swollen, and I would have had him report immediately

to our medical unit” language (internal quotation marks omitted)).)

Plaintiff further emphasizes that, during the grievance process

following the events in question, Defendant stated that he did “not

recall this incident that took place on [May 20, 2019].” (Id. at

4; see also Docket Entry 2 at 7 (indicating that, during grievance

process, “[b]oth officers claimed to have no recollection of

events”).) Per Plaintiff, “[i]t is impossible for Defendant

Campbell to ‘not recall this incident on [August 1, 2019], less

than 90 days after [the] incident[,] but remember with clarity[]

the same incident on June 2, 2022, [the date he signed the

affidavit (see Docket Entry 53-1 at 4),] over three (3) years

later.” (Docket Entry 56-1 at 4.)

Whatever persuasive force these arguments may hold at trial,

they fail to justify summary judgment. In this regard,

[t]he evidence offered in this case is simply not on

equal fooling with the type of evidence that documented

the incident with the level of certainly and reliability

as the videotape[] in Scott . . . . Where, as here, the

parties offer dueling affidavits with substantially

different accounts, Scott instructs that[,] “in such

posture, courts are required to view the facts and draw

reasonable inferences in the light most favorable to the

party opposing the summary judgment motion.” 550 U.S. at

378 (citation and internal quotation marks omitted).

Stout v. Reuschling, No. CIV.A. 14-1555, 2015 WL 1461366, at *10

(D. Md. Mar. 27, 2015). Here, neither party has provided

“undisputed evidence which ‘blatantly contradict[s]’ [the other

party’s] account of the events which occurred on [May 20], 2019 at

19

[Forsyth Correctional Center].” York v. Capers, No. CV 1:19-2885,

2020 WL 4435188, at *2 (D.S.C. Aug. 3, 2020) (first set of brackets

in original). Accordingly, the record does not justify summary

judgment in Plaintiff’s favor, necessitating denial of Plaintiff’s

Summary Judgment Motion. See id.

B. Defendant’s Motion

For his part, Defendant jointly moved for summary judgment and

responded in opposition to Plaintiff’s Summary Judgment Motion, all

prior to Plaintiff verifying his assertions. (See, e.g., Docket

Entry 52 at 1 (“[Defendant] submits this memorandum of law (i) in

support of his motion for summary judgment and (ii) in opposition

to the motion for summary judgment of Plaintiff . . . .”); Docket

Entry 56-1 at 16 (“verify[ing] under penalty of perjury that all

claims, motions and statements submitted by Plaintiff are true and

correct”).) Thus, Defendant initially argued that Defendant’s

affidavit provides the “undisputed (and undisputable) evidence” in

this matter. (Docket Entry 52 at 12; accord id. at 1, 4, 6, 8-13,

15.) After Plaintiff’s verification, Defendant changed his

argument, contending instead that

[t]he material statements in Plaintiff’s Response

consist of conjecture and speculation, not facts. First,

Plaintiff writes that “[i]t is impossible for [Sgt.]

Campbell to ‘not recall this incident’ on 08-01-2019,

less than 90 days after incident but remember with

clarity, the same incident on June 2, 2022, over three

(3) years later.” [D.E. 56-1, p. 4] This is pure

speculation. Plaintiff’s conclusory statement regarding

what is “impossible” regarding [Sgt.] Campbell’s memory

is not probative.

20

Next, Plaintiff makes the conclusory statement that

requiring Plaintiff to get on the bus “created an

‘unreasonable’ risk of danger to Plaintiff which resulted

in extended hospitalization of Plaintiff.” [D.E. 56-1,

p. 7] Again, this is mere speculation. There is no

evidence that Plaintiff’s hospitalization, or the length

thereof, was caused or was at all affected by getting on

the bus that morning. In fact, Plaintiff admits that he

did not actually become ill until hours after interacting

with [Sgt.] Campbell. [D.E. 43, p. 3] Moreover,

Plaintiff does not dispute that there was no medical

hold, nor does he dispute that the camp nurse never

called [Sgt.] Campbell to tell him to keep Plaintiff off

the bus. [D.E. 56-1, p. 5] Rather, Plaintiff merely

offers more speculation, specifically that (i) the lack

of medical hold must be because it was a Monday morning,

and (ii) [Sgt.] Campbell somehow secretly knew that there

could not possibly be a medical hold on a Monday morning.

[D.E. 56-1, p. 11] This speculation does not raise a

genuine issue of material fact, and Plaintiff cannot

avoid summary judgment with speculation. Bouchat[ v.

Baltimore Ravens Football Club, Inc.], 346 F.3d [514,]

522 [(4th Cir. 2003)].

(Docket Entry 58 at 2-3 (footnote omitted) (certain brackets in

original).) Defendant’s contentions miss the mark.

Viewed in the light most favorable to Plaintiff, the record

reflects, inter alia:

On the night of Sunday, May 19, 2019, “Plaintiff began

experiencing chills, nausea, pain and swelling in his lower left

leg after scraping/cutting his left leg on a rusted bathroom door

while getting out of the shower.” (Docket Entry 43 at 2.) After

completing a sick call request, Plaintiff “laid back down in pain

shaking with cold chills.” (Docket Entry 2 at 5.) On Monday, May

20, 2019, Plaintiff was scheduled to attend the Dobson School (see

Docket Entry 56-1 at 6, 11), “located approximately 45 miles from

21

Forsyth Correctional [Center]” (Docket Entry 43 at 1). Inmates

travel to the Dobson School on a daily basis via bus (see id.) and

the Dobson School lacks medical providers (see Docket Entry 56-1 at

8). Around 7 a.m. that morning, Plaintiff awoke with visible

swelling in his leg. (See Docket Entry 2 at 5.) Visibly limping,

Plaintiff asked the officer at the bus to excuse him from school

attendance so that he could see medical providers at Forsyth

Correctional Center that day. (See Docket Entry 56-1 at 5.) The

officer told Plaintiff that “[he] ha[d] to ask the OIC.” (Id.

(internal quotation marks omitted).) Defendant served as OIC that

morning. (See id. at 2.)

Plaintiff walked to the Sergeant’s Office, “visibly limping,”

and “show[ed] Defendant both legs, the left leg visibly swollen

larger than the right, red and irritated.” (Id. at 5.) Plaintiff

then “verbally report[ed] ‘feeling nauseous, shaking with cold

chills[,] and experiencing pain in [his] lower left leg.’” (Id.)

Plaintiff “additionally informed Sgt. Campbell that [Plaintiff] had

submitted a sick call form for this matter.” (Id.) Plaintiff also

told Sgt. Campbell that “[Plaintiff] needed to remain on campus to

see the nurse,” but “Sgt. Campbell said[,] ‘Get on the bus or get

a write up.’” (Docket Entry 2 at 5; see also Docket Entry 43 at 2

(explaining that, after Plaintiff showed Defendant his injury and

informed Defendant that Plaintiff “was experiencing chills, nausea,

pain, and swelling in [his] lower [left leg and] asked to be

22

excused from school to see medical,” Defendant “ordered Plaintiff

to ‘get on the bus for school or get a write-up’” and “Plaintiff

complied with [the] order”).) Defendant’s refusal to excuse

Plaintiff from attending the Dobson School to receive medical

treatment caused “Plaintiff to endure additional and unnecessary

pain and suffering in the form of ongoing symptoms of chills,

nausea, vomiting, pain[,] and swelling of [his] lower left leg.”

(Docket Entry 56-1 at 7; accord Docket Entry 43 at 8.)

Plaintiff continued experiencing chills, nausea, pain, and

swelling (see Docket Entry 43 at 8), and he vomited at lunch at the

Dobson School (see id. at 3, 8). Sgt. Kennedy instructed Plaintiff

to see medical before he returned to the Dobson School. (Id. at 3;

see also Docket Entry 56-1 at 8 (indicating that “it is protocol

. . . to excuse sick inmates from attending the Dobson School until

‘cleared by medical’” (certain internal quotation marks omitted)).)

However, when Plaintiff returned to Forsyth Correctional Center,

“medical was gone for the day.” (Docket Entry 43 at 3.) The

following day, a nurse at the facility examined Plaintiff, finding

that his “lower left leg was swollen with pitting edema and was hot

to touch and painful.” (Id.)

Forsyth Correctional Center medical personnel “arranged for

Plaintiff to be transported to the emergency department at Novant

Health Forsyth Hospital,” where “Plaintiff was admitted [that day]

. . . with severe lower left leg cellulitis and rhabdomyolysis,

23

resulting in acute kidney injuryl[,] and remained hospitalized until

[June 10, 2019). (Id.)* Plaintiff continues to take medicine to

reduce his leg swelling, wears compression socks and hose, and

experiences areas of skin discoloration on his leg. (Id.) Per

Plaintiff, Defendant’s actions “caused Plaintiff to endure [his]

symptoms for more than 24 additional hours, which resulted in [his]

extended hospitalization,” and “allowed [the] infection to enter

into Plaintiff’s bloodstream,” causing various adverse results.

(Id. at 8.)

This evidence extends beyond “pure speculation” (Docket Entry

58 at 2), “conclusory statement[s]” (id.), and “conjecture” (id.).

The Court should therefore reject Defendant’s contention that the

undisputed evidence justifies summary judgment in his favor.’

4 Cellulitis is “a bacterial infection of the skin and

subcutaneous tissue marked by discomfort and redness, swelling, and

warmth of the infected area.” Scott v. Carpenter, 24 F. App’x 645,

647 (8th Cir. 2001). “Tf not treated promptly, cellulitis can

quickly spread through the body and cause sepsis, ‘a potentially

fatal systemic infection.’” Bunche v. United States, No. 17-6190,

2018 WL 4959029, at *1 (6th Cir. June 20, 2018) (quoting Newmann v.

United States, 938 F.2d 1258, 1260 (5th Cir. 1991)). In turn,

“[r]habdomyolysis is the breakdown of muscle tissue leading to the

release of muscle fiber contents into the blood. These substances

often cause kidney damage.” Sykes v. Kijakazi, No. 2:20cv18, 2022

WL 854822, at *8 n. 19 (W.D. Va. Mar. 21, 2022).

5 Defendant also contends that Plaintiff pursues solely a

negligence claim rather than an eighth-amendment deliberate

indifference claim. (See Docket Entry 58 at 3-4.) To the

contrary, Plaintiff asserts that

Defendant displayed reckless and callous indifference to

Plaintiff’s medical need by ordering Plaintiff to get on

(continued...)

24

Defendant next argues that “Plaintiff cannot establish that he

had a serious medical need on the morning of May 20, 2019 that was

so obvious that even a lay person like Campbell would easily

recognize the necessity for a doctor’s attention.” (Docket Entry

52 at 8 (emphasis omitted).) More specifically, Defendant states:

First, [Sgt.] Campbell testifies that he was not

aware of a serious medical need of Plaintiff on the

morning of May 20, 2019. Plaintiff’s leg was not

obviously swollen to [Sgt.] Campbell, nor did Plaintiff

seem obviously ill. Additionally, the camp nurse did not

call [Sgt.] Campbell to have Plaintiff held in the prison

facility for May 20, 2019, and there was otherwise no

medical hold on Plaintiff on May 20, 2019. There is no

evidence to dispute this testimony.

Second, even Plaintiff’s unsworn statements

demonstrate that any serious medical needs did not become

obvious until lunch time on May 20, 2019. Plaintiff

admits that he spent all morning at the Dobson School

before he became obviously ill (when he vomited during

lunch).

Therefore, it is undisputed that Plaintiff can

establish no obvious serious medical need the morning of

5(...continued)

the bus for school or get a write up after Plaintiff

showed Defendant his injury, informed Defendant of [his]

sickness and the fact that Plaintiff had turned in a sick

call to see medical. When Defendant ordered Plaintiff to

get on the bus for school or get a write-up, Defendant

was reckless and callous in giving Plaintiff this order

and exhibited a deliberate indifference to Plaintiff’s

obvious and serious medical need[, as] any layman could

see that this injury required medical attention.

(Docket Entry 43 at 11.) Defendant’s negligence argument therefore

does not justify summary judgment.

25

May 20, 2019. For that reason alone, Plaintiff’s claims

against [Sgt.] Campbell fail as a matter of law.

(Id. at 9-10 (internal citations omitted) (emphasis and certain

brackets in original).)

As discussed above, viewed in the light most favorable to

Plaintiff, the record reflects that, on the morning in question

(and in Defendant’s presence), Plaintiff exhibited a visible limp

and a visibly swollen, red, and irritated left leg. He also

reported pain, chills, and nausea to Defendant and informed

Defendant of a pending sick call request. “Viewing the facts in

the light most favorable to Plaintiff, as we must, Plaintiff was

suffering from a serious, visible medical need at the time

[Defendant] responded to [Plaintiff’s request to be excused from

school to obtain medical care].” Scinto, 841 F.3d at 231.

A reasonable jury could find that Plaintiff suffered from a

“serious medical condition ‘so obvious that even a lay person would

easily recognize the necessity for a doctor’s attention.’” Id. at

232 (quoting Iko, 535 F.3d at 241); accord, e.g., Gomez v. Davis,

No. 7:20-cv-726, 2022 WL 777064, at *6-7 (W.D. Va. Mar. 11, 2022)

(finding that “visibly swollen and discolored” hand and

“complain[ts] of severe pain” qualified as objective medical need

in deliberate indifference claim against non-medical correctional

officer); Hairston v. Allen, No. 7:19cv328, 2020 WL 1066342, at *6

(W.D. Va. Mar. 5, 2020) (finding that allegations of the

plaintiff’s “readily observable” “pain, swelling, and limp” from

26

his “injured foot and leg” evidenced “an obvious need for medical

treatment” in deliberate indifference claim against deputies

(internal quotation marks omitted)); Scott v. Clarke, 64 F. Supp.

3d 813, 824 (W.D. Va. 2014) (“Cynthia Scott’s severely swollen leg

associated with her blood clot, Ms. Richardson’s open sores on her

left leg, and Rebecca Scott’s severely deformed toenail are all

conditions that even a lay person would recognize as meriting a

doctor’s attention.”). Indeed, Defendant himself tacitly conceded

as much. (See Docket Entry 53-1, ¶¶ 14-15 (averring that, although

he “ha[d] no [medical] training,” if he had seen Plaintiff with an

“obviously swollen” leg, Defendant “would not have required

[Plaintiff] to go to the Dobson School,” but instead “would have

had him report immediately to [the] medical unit”).) The Court

should therefore reject Defendant’s assertion that Plaintiff failed

to establish an objectively serious medical need.

Defendant further contends that Sgt. “Campbell was not

deliberately indifferent.” (Docket Entry 52 at 10 (emphasis

omitted).) Defendant’s arguments in support of this contention

rely exclusively on Defendant’s affidavit, without engagement with

Plaintiff’s evidence. (See id. at 10-12.) In ruling on

Defendant’s Motion, however, the Court must construe the evidence

in the light most favorable to Plaintiff. See, e.g., Scinto, 841

F.3d at 231. Viewed from that perspective, the evidence

establishes that, confronted with Plaintiff’s obvious, serious

27

medical need, Defendant refused Plaintiff’s request to remain at

Forsyth Correctional Center to obtain medical assistance and

instead ordered him to go to the Dobson School (which lacked

medical providers).

Under the circumstances, a factfinder could reasonably

conclude that Defendant acted with deliberate indifference to

Plaintiff’s serious medical needs. See, e.g., Gomez, 2022 WL

777064, at *7 (“conclud[ing] that [the plaintiff’s] allegations

plausibly suggest that [the defendant guard] was aware that [the

plaintiff] had suffered a painful injury and that he intentionally

declined to assist [the plaintiff] in obtaining medical treatment,”

and observing that “[s]uch inaction on the part of correctional

officials, in the face of an obvious need for medical care,

provides a reasonable basis for finding deliberate indifference”);

Hairston, 2020 WL 1066342, at *6 (“Viewing the allegations in the

light most favorable to [the plaintiff] as the court must at this

stage of the litigation, the court concludes that [the plaintiff]

has adequately alleged that the [d]efendant [d]eputies were aware

that [the plaintiff] had suffered a painful injury, and that they

‘intentionally ignored the situation and refused to seek medical

assistance.’ Sosebee v. Murphy, 797 F.2d 179, 183 (4th Cir. 1986).

Such inaction on the part of jail officials, in the face of an

obvious need for medical treatment, provides a reasonable basis for

finding deliberate indifference.”).

28

As such, the Court should reject Defendant’s request for

summary judgment on this claim.6 Finally, Defendant maintains

that, “[a]s a matter of law, Plaintiff is not entitled to

compensatory damages or punitive damages from [Sgt.] Campbell.”

(Docket Entry 52 at 12 (emphasis omitted).) According to

Defendant, Plaintiff has “admit[ted] that he cannot prove

causation” without expert testimony and thus “he is not entitled to

compensatory damages.” (Id. at 13.) Defendant further contends

that “there is no evidence that [Sgt.] Campbell was reckless or

callously indifferent to Plaintiff’s allegedly serious medical

need,” as “the undisputed evidence demonstrates that [Sgt.]

Campbell was not deliberately indifferent,” and “[t]hus,

Plaintiff’s punitive damages claims must necessarily fail.” (Id.

at 13-14.) These contentions lack merit.

First, as Plaintiff noted (see, e.g., Docket Entry 56-1 at

12), he has pursued expert witness testimony regarding “the cause

of [his] rhabdomyolysis, kidney injury and the lasting effects and

permanency of these medical issues” (id.). However, Plaintiff has

also asserted that Defendant’s actions “caused Plaintiff pain and

suffering in the form of ongoing symptoms of chills, nausea,

vomiting, pain and swelling of lower left leg.” (Id.; accord

6 Moreover, because Defendant’s qualified immunity argument

rests entirely on the premise that “Plaintiff has not demonstrated

a violation of a constitutional right” (Docket Entry 52 at 15; see

id. at 14-15), the Court should reject Defendant’s “alternative

reason” (id. at 15) for granting summary judgment to Defendant.

29

Docket Entry 43 at 10.) “No expert testimony is needed to

establish causation [with respect to the latter circumstance]

because it is apparent to a layman that [Defendant’s alleged

refusal to excuse Plaintiff from attending the Dobson School to

receive medical aid] could cause [Plaintiff to continue

experiencing such symptoms].” Krell v. Queen Anne’s Cnty., No. CV

18-0637, 2019 WL 6131076, at *3 (D. Md. Nov. 19, 2019); see also

Scinto, 841 F.3d at 230 (explaining that, “when the seriousness of

an injury or illness and the risk of leaving that injury or illness

untreated would be apparent to a layperson, expert testimony is not

necessary to establish a deliberate indifference claim”).)

Defendant’s compensatory damages argument thus does not warrant

relief at this stage of the proceedings.

As for Defendant’s punitive damages contention, it bears

noting that the items Plaintiff identifies as “punitive damages,”

namely “loss of future earning potential and medical deficiency

caused by damage to leg” (Docket Entry 2 at 5), actually qualify as

compensatory damages. See, e.g., Smith v. Wade, 461 U.S. 30, 52,

54 (1983) (explaining that compensatory damages “compensate [a]

plaintiff for his loss” whereas “[p]unitive damages are awarded in

the jury’s discretion ‘to punish [the defendant] for his outrageous

conduct and to deter him and others like him from similar conduct

in the future’” (final set of brackets in original)).

Additionally, Defendant’s argument on this front construes the

30

evidence in the light most favorable to him rather than Plaintiff,

which the Court cannot do in resolving Defendant’s Motion.

In any event:

A plaintiff may recover punitive damages on a

Section 1983 claim when the defendant acts with reckless

or callous indifference to the federally protected rights

of others. The callous indifference required for

punitive damages is essentially the same as the

deliberate indifference required for a finding of

liability on [a] § 1983 claim. Accordingly, if the

evidence suffices for a Section 1983 claim, it generally

suffices for punitive damages. See Cooper[ v. Dyke], 814

F.2d [941,] 948 [(4th Cir. 1987)] (explaining that “the

propriety of a guilty verdict on the [Section 1983 claim]

thus supports the punitive damage award as well”).

Simmons v. Corizon Health, Inc., No. 1:14cv730, 2016 WL 11786319,

at *2 (M.D.N.C. Dec. 7, 2016) (certain internal quotation marks and

citations omitted) (certain brackets in original); see also, e.g.,

Morris v. Bland, 666 F. App’x 233, 240 (4th Cir. 2016) (concluding

that the defendants’ “deliberate indifference to [the plaintiff’s]

serious medical needs satisfies the requirement that their conduct

involve reckless or callous indifference to [the plaintiff’s]

federally-protected rights,” justifying punitive damages). As

discussed above, on the current record, a factfinder could

reasonably conclude that Defendant acted with deliberate

indifference to Plaintiff’s serious medical needs. Thus,

Plaintiff’s punitive damages request survives summary judgment.

For all of the foregoing reasons, the Court should deny

Defendant’s Motion and Plaintiff’s deliberate indifference claim

against Defendant in his individual capacity should proceed to

31

trial. Conversely, any official-capacity claim (see Docket Entry

2 at 2) should be dismissed for failure to state a claim, see 28

U.S.C. § 1915(e) (2) (B), because Defendant’s employer, NCDPS, as an

arm of the State of North Carolina, does not constitute a person

for damages claims under Section 1983, see Will v. Michigan Dep’t

of State Police, 491 U.S. 58 (1989).

II. Witness Motions

Next, through the Expert Motion, Plaintiff seeks to obtain

“[Te]xpert witness testimony from [his] attending physicians at

Novant Health Hospital.” (Docket Entry 46 at 3; accord Docket

Entry 45 at 1.) It remains unclear whether Plaintiff wants such

testimony at or in advance of trial (see, e.g., Docket Entry 46 at

3 (referencing “expert witness testimony from attending physicians

. . . to present expert testimony during [the] jury trial”); see

also Docket Entry 26 (proposing to “[s]ubpoena Plaintiff’s expert

witnesses or depose them in a fashion that would not delay

trial”)}), but Plaintiff has separately sought “an order appointing

someone . . . to take the depositions of Plaintiff’s expert

witnesses from Novant Health Forsyth Hospital” (Docket Entry 60 at

1). In conjunction with the latter request, Plaintiff filed

interrogatories addressed to Defendant, other inmates, and certain

medical personnel, dated as sent in September 2022. (See id. at 3-

10.)

32

The Scheduling Order set March 3, 2022, as the discovery

deadline. (See Text Order dated June 23, 2021.) A scheduling

order “may be modified only for good cause and with the [Court’s]

consent.” Fed. R. Civ. P. 16(b)(4). “[T]he touchstone of ‘good

cause’ under [Federal Rule of Civil Procedure] 16(b) is diligence.”

Marcum v. Zimmer, 163 F.R.D. 250, 255 (S.D. W. Va. 1995); see also

Fed. R. Civ. P. 16 advisory committee’s note, 1983 Amendment,

Subdivision (b) (“[T]he court may modify the schedule on a showing

of good cause if it cannot reasonably be met despite the diligence

of the party seeking the extension.”). Here, Plaintiff filed the

Expert Motion and Deposition Motion in May 2022 and October 2022,

respectively. (See Docket Entry 45 at 1; Docket Entry 60 at 2.)

Because Plaintiff filed these motions after the Scheduling Order’s

deadline for discovery, he must establish “excusable neglect” to

receive relief. See Fed. R. Civ. P. 6(b)(1)(B) (“When an act may

or must be done within a specified time, the court may, for good

cause, extend the time[ ] . . . on motion made after the time has

expired if the party failed to act because of excusable neglect.”).

“‘Excusable neglect’ is not easily demonstrated, nor was it

intended to be.” Thompson v. E.I. DuPont de Nemours & Co., 76 F.3d

530, 534 (4th Cir. 1996).

Although Plaintiff characterized the Deposition Motion “as the

third attempt to formulate a preliminary deposition schedule”

(Docket Entry 60 at 3), he has not elucidated either attempts he

33

took to obtain the requested depositions and answers to the

proffered interrogatories during the discovery period or reasons

for his delay in (implicitly) requesting an extension of the

discovery deadline (see generally Docket Entries 45, 46, 60). As

such, Plaintiff has shown neither diligence nor excusable neglect.

Furthermore, as the Court (per the undersigned Magistrate Judge)

previously has explained, to the extent that the Expert Motion

seeks to secure the testimony of the identified witnesses at trial,

it both remains “premature” given the pending dispositive motions

and fails to “certif[y] that Plaintiff can and will provide funds

necessary to pay the required witness fees and mileage, which his

pauper status does not cover” (Text Order dated Apr. 26, 2022).

(See Docket Entries 45, 46.) The Court will therefore deny the

Witness Motions.

III. Legal Assistance Motions

In the Legal Assistance Motions, Plaintiff indicates that, in

part due to a change in NCDPS mail services, he lacks access at his

current facility to legal resources necessary to pursue his claims

in this action. (See Docket Entry 48 at 1-7; Docket Entry 50 at

1.) According to Plaintiff, “[w]ithout appointment of counsel or

transfer to a facility with [a] tablet containing Westlaw free

services, Plaintiff’s access to [the] courts is reduced to

nonexistent.” (Docket Entry 50 at 1.) Thus, Plaintiff seeks

transfer to an NCDPS facility more conducive to legal research and

34

preparation, “[a]ppointment of counsel” (id. at 2), and “[a]ny

other relief the Court deems appropriate” (Docket Entry 48 at 7).

(See id.; Docket Entry 50 at 2.) Particularly given the lack of a

viable official-capacity claim, the Court should not direct NCDPS

to transfer Plaintiff between facilities. However, in light of the

recommended denial of the Summary Judgment Motions, the Court will

direct the Clerk to attempt to locate counsel willing to represent

Plaintiff at trial pursuant to the Court’s pro bono representation

program. See Bowman v. White, 388 F.2d 756, 761 (4th Cir. 1968)

(noting court’s discretion to appoint counsel for in forma pauperis

litigants like Plaintiff).

CONCLUSION

Material factual disputes preclude summary judgment for either

party on Plaintiff’s individual-capacity, deliberate indifference

claim. Plaintiff has not established grounds for his deposition

and expert testimony requests; however, as this case should proceed

to trial, an effort to locate pro bono representation for Plaintiff

should commence.

IT IS THEREFORE RECOMMENDED that Plaintiff’s Summary Judgment

Motion (Docket Entry 42) and Defendant’s Motion (Docket Entry 51)

be denied, but that any official-capacity claim be dismissed

pursuant to 28 U.S.C. § 1915(e)(2)(B), for failure to state a

claim.

35

IT IS ORDERED that (i) the Expert Motion (Docket Entry 45) and

Deposition Motion (Docket Entry 60) are DENIED and (ii) the Access

Motion (Docket Entry 47) and Appointment Motion (Docket Entry 49)

are GRANTED insofar as the Clerk shall attempt to locate counsel

willing to represent Plaintiff pursuant to the Court’s pro bono

representation program.

This 9th day of November, 2022.

/s/ L. Patrick Auld

L. Patrick Auld

United States Magistrate Judge

36