CONNELL v. RUSSELL, PA-C

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

ROGER DALE CONNELL, JR., )

)

Plaintiff, )

)

v. ) 1:22cv935

)

KAREN RUSSELL, PA-C, and )

SHERIFF VAN SHAW, )

)

Defendants. )

MEMORANDUM OPINION AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

This case comes before the undersigned United States

Magistrate Judge for a recommendation on Motions for Summary

Judgment filed by Defendants Karen Russell and Sheriff Van Shaw

(collectively, the “Summary Judgment Motions”) (Docket Entries 36,

38). (See Docket Entry dated Feb. 27, 2024.) The Court should

enter summary judgment for Defendant Russell (on the individual-

capacity claim against her) based on her qualified-immunity defense

and should enter summary judgment for Defendant Shaw on the merits

of the official-capacity claim against him, leaving for trial only

Plaintiff’s official-capacity claim against Defendant Russell.

INTRODUCTION

Plaintiff commenced this action by filing a pro se Complaint

against Defendant Russell (in her individual and official

capacities) and Defendant Shaw (in his official capacity) under 42

U.S.C. § 1983, based on events which occurred beginning on October

30, 2021, during Plaintiff’s pretrial detention at the Cabarrus

County Detention Center (at times, the “Jail”). (See Docket Entry

2; see also Docket Entry 24 (Amended Complaint correcting Defendant

Russell’s name); Docket Entry 27 (ordering case caption amended to

reflect Defendant Russell’s correct name).) Plaintiff’s Amended

Complaint alleges that Defendants Russell and Shaw violated

“[Plaintiff’s] Eigth [sic] and Fourteenth Ammendment [sic] rights

to adequate medical care for a serious medical need.” (Docket

Entry 24 at 3.)1 The Amended Complaint elaborates as follows:

Cabarrus County Detention Center ([Defendant] Shaw) and

[its health care] provider ([Defendant] Russell) are

refusing [Plaintiff] Hepatitis C treatment when

(A) bloodwork confirms [he] ha[s] Hep[atitis] C,

(B) knowing it is a chronic infectious disease, [and]

(C) knowing the virus multiplies dayly [sic] damaging

[his] liver and body.

. . . .

[Defendant] Russell . . . ha[s] been denying [Plaintiff]

treatment for Hepatitis C since October 30th 2021.

Medical staff ([Defendant] Russell) and the Cabarrus

County Detention Center ([Defendant] Shaw) stated that

they will not treat [Plaintiff] on the county level for

[his] Hep[atitis] C due to [him] possibly leaving. The

provider ([Defendant] Russell) and the Cabarrus County

Detention Center ([Defendant] Shaw) both deny that this

is a personal policy not to treat [Plaintiff], that it is

just standard.

. . . .

[Plaintiff’s] AST and ALT (liver enzymes) levels are

extremely high and the virus has multiplied into the

millions causing [him] pain, hardning [sic], and

1 Pin cites to Docket Entries refer to the page numbers that

appear in the footer appended thereto upon docketing in the CM/ECF

system (not any original pagination). Quotations from Plaintiff’s

filings utilize standard capitalization conventions.

2

deterioration of [his] liver. This is made worse daily

due to the viruses [sic] rapid mutation in the body

daily. [Plaintiff] being infected with the virus limits

[his] body’s abilitys [sic] to filter out toxins making

[him] more susceptible to other viruses, diseases and

infections. [Plaintiff] was gave [sic] lactalode 1 time

to help [him] deficate [sic]. [Plaintiff] was giving

[sic] no treatment for Hepatitis C and [he] need[s]

treatment.

(Id. at 4-5 (stray periods omitted); see also id. at 5 (“asking the

Court[] to grant [Plaintiff] punitive and compensatory money

damages,” as well as to order “all filling [sic] fee[s and] court

costs be paid for by the Defendants” (stray comma omitted)).)

Defendants Russell and Shaw answered the Amended Complaint.

(See Docket Entries 30, 31.) In their answers, Defendants Russell

and Shaw, inter alia, “expressly denied . . . [they were]

deliberately indifferent . . . or damaged or harmed Plaintiff in

any way.” (Docket Entry 30 at 2; Docket Entry 31 at 2.)

Defendants Russell and Shaw also both asserted “entitle[ment] to

qualified immunity from Plaintiff’s suit.” (Docket Entry 30 at 3;

Docket Entry 31 at 3).

The Court (per the undersigned Magistrate Judge) promptly

“adopt[ed a] Scheduling Order” (Text Order dated June 9, 2023),

authorizing six months of discovery (see id.). After discovery

closed, Defendants Russell and Shaw timely filed the Summary

Judgment Motions (Docket Entries 36, 38) and supporting memoranda

(Docket Entries 37, 39), along with an “Affidavit of Sheriff Van

Shaw” (Docket Entry 40 at 1 (bold and all-caps font omitted)) and

3

an “Affidavit of Karen Michelle Russell, PA-C” (Docket Entry 41 at

1 (bold and all-caps font omitted)). Defendant Russell appended to

that last document redacted medical records for Plaintiff (see

Docket Entry 41-1) and Defendants Russell and Shaw filed under seal

the unredacted version of those records (see Docket Entry 43).2

The Clerk then sent Plaintiff a letter advising him of his

“right to file a 20-page response in opposition to the [Summary

Judgment M]otions” (Docket Entry 45 at 1 (parentheses omitted)), as

well as “affidavits setting out [his] version of any relevant

disputed material facts or . . . other responsive material” (id.;

see also id. (“A response to a motion for summary judgment must be

filed within 30 days from the date of service on you.”)). That

letter explicitly cautioned Plaintiff that a “failure to . . . file

affidavits or evidence in rebuttal within the allowed time may

cause the [C]ourt to conclude that the [Summary Judgment Motions’]

contentions are undisputed and/or that [he] no longer wish[es] to

pursue the matter.” (Id.)

Plaintiff timely opposed the Summary Judgment Motions (see

Docket Entries 46 (the “Response”), 47 (the “Response

Memorandum”)), and filed his own set of medical records (see Docket

Entries 48, 48-1, 48-2, 48-3, 48-4; see also Docket Entry 47-1 at

1 (setting out Plaintiff’s averment that he had “submitt[ed] to the

2 Defendants Russell and Shaw filed a motion to seal the

above-referenced records. (Docket Entry 42.) The undersigned

Magistrate Judge will address that motion by separate order.

4

Court[] all [his] evidence supporting [his] case . . . unsealed due

to the fact [that his place of imprisonment] does not help inmates

with copies of legal documents”); Docket Entry 49 at 1 (same)).3

Defendants Russell and Shaw thereafter timely replied. (See Docket

Entries 51, 52.)

DISCUSSION

“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 material factual dispute 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). When considering summary judgment, 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). Put another way, 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.” Miller v. Leathers, 913 F.2d 1085, 1087 (4th Cir. 1990) (en

banc) (internal brackets and quotation marks omitted). If,

applying that standard, the Court “find[s] that a reasonable jury

3 The Clerk nonetheless placed under seal the records filed by

Plaintiff and the undersigned Magistrate Judge will address that

matter by separate order.

5

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); see also Anderson, 477 U.S. at 248 (“Only disputes over

facts that might affect the outcome of the suit under the governing

law will properly preclude the entry of summary judgment.”).

As detailed in the Introduction, Plaintiff has asserted a

claim for violation of his “Eigth [sic] and Fourteenth Ammendment

[sic] rights to adequate medical care for a serious medical need.”

(Docket Entry 24 at 3.). That claim rests on the following

foundation: “[W]hen the State takes a person into its custody and

holds him there against his will, the Constitution imposes upon it

a corresponding duty to assume some responsibility for his safety

and general well-being.” DeShaney v. Winnebago Cnty. Dep’t of Soc.

Servs., 489 U.S. 189, 199-200 (1989). In other words, “when the

State by the affirmative exercise of its power so restrains an

individual’s liberty that it renders him unable to care for

himself, and at the same time fails to provide for

his . . . medical care . . .[,] it transgresses the substantive

limits on state action set by the Eighth Amendment [in the case of

convicted prisoners] and the Due Process Clause [of the Fourteenth

Amendment in the case of pretrial detainees].” Id. at 200; see

also Mays v. Sprinkle, 992 F.3d 295, 300 (4th Cir. 2021) (“[S]ince

[the plaintiff] was a pretrial detainee and not a convicted

6

prisoner, the Fourteenth Amendment, and not the Eighth Amendment,

governs his claim.” (internal quotation marks omitted)); Parrish ex

rel. Lee v. Cleveland, 372 F.3d 294, 302 (4th Cir. 2004) (“In cases

where the government is accused of failing to attend to a

detainee’s serious medical needs, . . . conduct that amounts to

deliberate indifference . . . can support a Fourteenth Amendment

claim.” (internal quotation marks omitted)).

Defendant Russell

In moving for summary judgment, Defendant Russell has

contended “that the undisputed evidence demonstrates the lack of

genuine issue and [sic] material fact, and entitles [her] to

judgment as a matter of law.” (Docket Entry 36 at 1.) To develop

that contention, the argument portion of Defendant Russell’s

supporting brief mistakenly frames Plaintiff’s claim for deliberate

indifference to his serious medical needs during his pretrial

detention – “starting October of 2021 through January of 2023”

(Docket Entry 24 at 4)4 – as arising under the Eighth Amendment,

rather than the Fourteenth Amendment. (See, e.g., Docket Entry 37

at 12, 13, 15.) Until very recently, that mistake would have

lacked any practical significance, because: (A) after “the Supreme

Court finally adopted a test for Eighth Amendment deliberate

4 Public records confirm that Plaintiff completed a state

prison sentence on September 11, 2021, and incurred additional

convictions in Cabarrus County on January 25, 2023. See

https://webapps.doc.state.nc.us/opi/offendersearch.do?method=view

(results for “Roger D. Connell, Jr.”) (last visited May 20, 2024).

7

indifference claims in Farmer v. Brennan[,] 511 U.S. 825 (1994),”

Short v. Hartman, 87 F.4th 593, 606-07 (4th Cir. 2023) (parallel

citations omitted); see also id. at 607 (“That test is

subjective[.]”%), “a consensus emerged among the courts of appeall[s]

that Farmer’s subjective Eighth Amendment standard applied to

Fourteenth Amendment claims,” id. at 607; and (B) “[the United

States Court of Appeals for the Fourth Circuit], too, extended

Farmer to Fourteenth Amendment claims,” id.; see also Brown v.

Harris, 240 F.3d 383, 388 n.6 (4th Cir. 2001) (reaffirming “that

the same ‘deliberate indifference’ standard applies to both inmates

and pretrial detainees”). However, the Fourth Circuit now has held

that “the heightened, subjective Eighth Amendment deliberate

indifference standard does not extend to Fourteenth Amendment

cases,” Short, 87 F.4th at 609. See id. at 609-11.

To replace the previous standard, the Short Court formulated

this four-element test for a Fourteenth Amendment “claim for

deliberate indifference to a medical need,” id. at 611:

(1) the[ plaintiff] had a medical condition or injury

that posed a substantial risk of serious harm; (2) the

defendant intentionally, knowingly, or recklessly acted

or failed to act to appropriately address the risk that

the condition posed; (3) the defendant knew or should

have known (a) that the [plaintiff] had that condition

and (b) that the defendant’s action or inaction posed an

unjustifiably high risk of harm; and (4) as a result, the

[plaintiff] was harmed.

Id. The Short Court thereafter explained:

The objective test we adopt today differs from our prior

subjective test in one respect only. The plaintiff no

longer has to show that the defendant had actual

knowledge of the [plaintiff’s] serious medical condition

and consciously disregarded the risk that [the

defendant’s] action or failure to act would result in

harm. ... Now, it is sufficient that the plaintiff

show that the defendant’s action or inaction was...

objectively unreasonable: that is, the plaintiff must

show that the defendant should have known of that

condition and that risk, and acted accordingly. .. .

To be clear, it is still not enough for the plaintiff to

allege that the defendant negligently or accidentally

failed to do right by the detainee. Negligence was not

enough before and it is not enough now.

Id. at 611-12 (emphasis added) (internal citations and quotation

marks omitted) .°

In advancing the argument that “[Defendant] Russell was not

deliberately indifferent to any serious medical condition suffered

by Plaintiff” (Docket Entry 37 at 11 (underscoring omitted)),

Defendant Russell’s supporting memorandum, filed on January 12,

2024 (see id. at 21), does not attempt to apply the facts of this

case against the above-quoted elements of claims for deliberate

indifference under the Fourteenth Amendment, announced by the

Fourth Circuit on December 8, 2023, see Short, 87 F.4th at 594.

(See Docket Entry 37 at 11-15.) Instead, after highlighting pre-

Short, case law focused on the Eighth Amendment (see id. at 12-13),

Defendant Russell made these factual assertions:

5 The distinction Short draws between its new standard for

deliberate indifference under the Fourteenth Amendment and

negligence may tax those tasked with practical application of that

distinction. See Patterson v. Stanly Cnty. Det. Ctr., No. 22CV515,

2024 WL 1936499, at *4 n.2 (M.D.N.C. May 2, 2024) (unpublished).

1) “upon first notice of [Plaintiff’s] hepatitis C diagnosis,

the [Jail’s] medical staff took action to determine the status of

Plaintiff’s hepatitis C” (id. at 14 (citing Docket Entry 41 at 4-5

and Docket Entry 43 at 8-9, 42-57));

2) “[u]pon determining Plaintiff’s hepatitis C status,

[Defendant] Russell determined that the local outside infectious

disease providers would not see and treat Plaintiff for his

hepatitis C diagnosis while he was an inmate at the Jail” (id.

(citing Docket Entry 41 at 4, 5-6 and Docket Entry 43 at 9, 44));

3) “[t]his was a policy of the local outside infectious

disease specialist providers, and was not a policy of the Jail nor

of the medical providers at the Jail, including [Defendant]

Russell” (id. (citing Docket Entry 40 at 3 and Docket Entry 41 at

4, 5-6));

4) “[Defendant] Russell, and several other medical personnel

at the Jail, explained the policy of the local outside infectious

disease providers to Plaintiff, and informed Plaintiff that[,]

while he was at the Jail, they would monitor him and would treat

any symptoms he reported” (id. (citing Docket Entry 41 at 4, 5-6,

7 and Docket Entry 43 at 9-10));

5) “Plaintiff’s blood work was monitored while he was at the

Jail, and he did receive treatment for any symptoms related to his

hepatitis C which he reported to medical staff” (id. (citing Docket

Entry 43 at 10, 65-66, 68-69, 72-73); see also id. (“Plaintiff was

10

seen and treated, when appropriate, for any and all symptoms he

reported to medical staff while he was at the Jail.” (citing

generally Docket Entries 41 and 43))); and

6) “[t]he monitoring and symptomatic treatment given to

Plaintiff by [Defendant] Russell and the medical providers at the

Jail was in fact in line with a prior recommendation from Central

Prison” (id. (citing Docket Entry 43 at 56-57); see also id. at 14-

15 (“[T]he course of treatment recommended by the Central [Prison]

providers was for Plaintiff’s hepatitis C to be monitored until he

could be referred by a case manager to local treatment facilities

upon his ultimate release from incarceration.” (citing Docket Entry

43 at 56-57))).

Following those factual assertions, Defendant Russell argued:

The monitoring and treatment of Plaintiff by [Defendant]

Russell and the medical staff at the Jail, in light of

the policy of local outside infectious disease experts

not to treat hepatitis C in incarcerated inmates, was the

opposite of deliberate indifference; rather, [Defendant]

Russell and the medical staff at the Jail provided

monitoring and treatment available to Plaintiff for his

hepatitis C in light of the inability to obtain outside

infectious disease treatment for Plaintiff’s hepatitis C.

Therefore, [Defendant] Russell was not deliberately

indifference [sic] to Plaintiff’s medical needs and she

is entitled to qualified immunity regarding Plaintiff’s

claims, and such claims should be dismissed.

(Id. at 15 (emphasis added); see also id. at 15-16 (arguing, under

separate subheading entitled “Plaintiff did not suffer any

substantial harm as a result of any alleged acts or inaction by

[Defendant] Russell,” that “Plaintiff cannot establish a genuine

11

dispute of material fact, and summary judgment should be granted in

[Defendant] Russell’s favor,” because “monitoring and symptomatic

treatment given to Plaintiff by [Defendant] Russell and the medical

providers at the Jail was in line with th[e] recommendation from

Central Prison” and “did not itself create a substantial risk of

harm to Plaintiff, and was rather initiated to prevent a

substantial risk of harm to Plaintiff while he was incarcerated”

(underscoring omitted)).)

Defendant Russell’s supporting memorandum subsequently expands

upon her argument for summary judgment based upon her qualified-

immunity defense as follows:

[Defendant] Russell is entitled to qualified immunity, as

no reasonable person in her position would have known

that her actions in monitoring Plaintiff’s hepatitis C

and treating his [sic] any of his chronic or acute

symptoms would have constituted a violation of some

clearly established right of Plaintiff. . . . [T]he

undisputed evidence establishes that Plaintiff received

appropriate, timely treatment from [Defendant] Russell

and all of the medical providers at the Jail. (See

generally [Docket Entries 41 and 43]). [Defendant]

Russell treated Plaintiff in accordance with her best

medical judgment and in accordance with the applicable

standard of care, as would a reasonable person in her

position as a medical provider treating Plaintiff’s

diagnosis under his incarceration circumstances. (See

[Docket Entry 41 at 10]).

The medical records indicate that [Defendant] Russell

consistently entered orders for Plaintiff’s monitoring

and treatment, when needed; acted reasonably in treating

Plaintiff; and used her best medical judgment when

treating Plaintiff. ([Docket Entry 41 at 9-10]; see

generally [Docket Entry 43]). In fact, [Defendant]

Russell’s actions in monitoring and treating Plaintiff’s

hepatitis C symptoms while he was incarcerated were in

line with prior recommendations by Central Prison.

12

([Docket Entry 43] at 56-57). As such, other physicians

treating Plaintiff during his incarceration prior to his

time at the Jail had made the same determination and

recommendation regarding monitoring of his hepatitis C

until his ultimate release from incarceration, indicating

the reasonableness of the conduct.

Thus, no reasonable person acting in [Defendant]

Russell’s position would have known or thought that her

treatment efforts constituted some deliberate

indifference to Plaintiff’s medical needs or constituted

some violation of Plaintiff’s constitutional rights.

Therefore, [Defendant] Russell is entitled to qualified

immunity regarding Plaintiff’s claims, and such claims

should be dismissed.

(Docket Entry 37 at 17-18.)

Because Defendant Russell failed to develop any argument that

her conduct did not amount to deliberate indifference under the

Short elements, the Court should decline to enter summary judgment

for her on the merits of Plaintiff’s claim under the Fourteenth

Amendment. See Shaughnessy v. Duke Univ., No. 18CV461, 2020 WL

4227545, at *6 (M.D.N.C. July 23, 2020) (unpublished) (Eagles, J.)

(ruling that “[the defendant] ha[d] not met its initial burden to

show that it [wa]s entitled to summary judgment,” where it “d[id]

not explain why the evidence [wa]s insufficient to support a jury

verdict on any particular element or elements [of the claims at

issue]”); see also Hill v. Carvana, LLC, No. 1:22CV37, 2022 WL

1625020, at *5 (M.D.N.C. May 23, 2022) (unpublished) (Eagles, J.)

(“It is not the Court’s job to undertake the analysis and legal

research needed to support a perfunctory argument, nor should a

party expect [the C]ourt to do the work that [the party] elected

13

not to do.” (internal citation and quotation marks omitted)). The

Court nonetheless “must address [the] argument that [Defendant

Russell is] entitled to qualified immunity.” Scinto v. Stansberry,

841 F.3d 219, 235 (4th Cir. 2016).

“[Q]ualified immunity shields government officials from

liability for civil damages for the deprivation of federal rights

so long as their conduct does not violate clearly established

statutory or constitutional rights of which a reasonable person

would have known.” Tarashuk v. Givens, 53 F.4th 154, 162 (4th Cir.

2022) (internal quotation marks omitted). Simply stated, Defendant

Russell possesses “entitle[ment] to qualified immunity unless [she]

(1) violated a federal statutory or constitutional right, and

(2) the unlawfulness of [her] conduct was clearly established at

the time.” Hulbert v. Pope, 70 F.4th 726, 732 (4th Cir. 2023)

(internal quotation marks omitted). “If [Plaintiff] fails at

either prong, [Defendant Russell is] entitled to summary judgment.”

Amisi v. Brooks, 93 F.4th 659, 666 (4th Cir. 2024).

The second prong of the qualified immunity test “requires

looking to the law at the time of the conduct in question.” Mays,

992 F.3d at 301 (emphasis in original). Well before October 2021,

“it was clearly established that ‘a pretrial detainee had a right

to be free from any form of punishment under the Due Process Clause

of the Fourteenth Amendment.’ And that right required ‘that

government officials not be deliberately indifferent to any serious

14

medical needs of the detainee.’” Id. (internal brackets and

citation omitted) (quoting Belcher v. Oliver, 898 F.2d 32, 34 (4th

Cir. 1990)).

However, as of and for more than two years after October 2021,

the Fourth Circuit’s “caselaw considered a deliberate-indifference

claim [under the Fourteenth Amendment] to reguire both an

objectively serious medical condition and subjective knowledge by

a_[government] official of both the serious medical condition and

the excessive risk posed by the official’s action or inaction.”

Id. (emphasis added) (internal quotation marks omitted); see also

Short, 87 F.4th at 610-11 (abrogating, on December 8, 2023, prior

precedent applying subjective element of claims for deliberate

indifference under Eighth Amendment to claims for deliberate

indifference under Fourteenth Amendment); Nelson v. Guilford Cnty.,

No. 1:23CV233, 2024 WL 691372, at *6 (M.D.N.C. Feb. 20, 2024)

(unpublished) (Peake, M.J.) (“Until recently, a claim for

deliberate indifference by a pretrial detainee also included a

subjective component . .. . [Tlhe Fourth Circuit in Short

concluded that the subjective element does not apply to Fourteenth

Amendment deliberate indifference claims by pretrial detainees.”),

recommedation adopted, slip op. (M.D.N.C. Mar. 25, 2024) (Biggs,

J.). As a result, “if the [record] show[s] that [Defendant

Russell] lacked the required subjective knowledge, then [she] would

not have violated clearly established law. Only if the [record]

15

plausibly show[s] .. . subjective knowledge by [Defendant Russell]

will [Plaintiff’s] claim clear the qualified-immunity hurdle.”

Mays, 992 F.3d at 302 (emphasis in original); see also Ray v.

Roane, 93 F.4th 651, 658 (4th Cir. 2024) (mandating “analy[sis of

a defendant’s] entitlement to qualified immunity using the same

evidentiary record that informed [the] analysis of the

constitutional merits”); Thorpe v. Clarke, 37 F.4th 926, 937-39

(4th Cir. 2022) (ruling that, for claims of deliberate indifference

with both objective and subjective elements, qualified immunity

analysis focuses solely on subjective element).

To recap, at the time of these events, under Fourth Circuit

precedent, a Section 1983 claim for unconstitutional deprivation of

medical care (whether brought by a pretrial detainee or a convicted

prisoner) required proof that the defendant “acted with ‘deliberate

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

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

2008).° “The subjective component . . . sets a particularly high

bar to recovery.” Id. “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).

6 As to the objective element, Defendant Russell’s supporting

brief does not contest the Court’s prior “determin[ation] that

Plaintiff’s diagnosis of hepatitis C qualifies as a ‘serious

medical condition’” (Docket Entry 37 at 15 (quoting Docket Entry 19

at 22); see also Docket Entry 27 at 1 (“adopt[ing Docket Entry 19]

in full”)). (See Docket Entry 37 at 15.)

16

“Liability under this standard thus requires two showings,”

Parrish, 372 F.3d at 303:

First, the evidence must show that the official in

question subjectively recognized a substantial risk of

harm. It is not enough that the [defendant] should have

recognized it; the[ defendant] actually must have

perceived the risk. Second, the evidence must show that

the official in question subjectively recognized that

h[er] actions were inappropriate in light of that risk.

As with the subjective awareness element, it is not

enough that the [defendant] should have recognized that

h[er] actions were inappropriate; the [defendant]

actually must have recognized that h[er] actions were

insufficient.

Id. (internal citations and quotation marks omitted) (emphasis in

original); see also Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011)

(“When properly applied, [qualified immunity] protects all but the

plainly incompetent or those who knowingly violate the law.”

(internal quotation marks omitted)).

As reflected in prior quotations and related citations from

Defendant Russell’s supporting memorandum, her arguments bearing on

qualified immunity rely on both the “Affidavit of [Defendant]

Russell” (Docket Entry 41 at 1 (bold and all-caps font omitted))

and contemporaneously filed medical records (Docket Entry 43);

however, despite its title, that former document “do[es] not

qualify as [an] affidavit[] and [should] not [be] considered by the

Court when ruling on [Defendant Russell’s] summary judgment

[motion],” Williams v. Gilbert, No. 7:22CV668, 2024 WL 1261211, at

*4 (W.D. Va. Mar. 25, 2024) (unpublished) (internal quotation marks

omitted). In that regard, “an affidavit, by definition, is a

17

statement reduced to writing and the truth of which is sworn to

before someone who is authorized to administer an oath.”

Elder-Keep v. Aksamit, 460 F.3d 979, 984 (8th Cir. 2006) (emphasis

in original) (internal quotation marks omitted); accord, e.g.,

United States v. Watkins, No. 4:08CR123, 2010 WL 11606742, at *2

(E.D. Va. Dec. 7, 2010) (unpublished). “Alternatively, federal law

provides that[,] if [a] declaration is not sworn before an official

authorized to administer an oath, it may nevertheless be admissible

to support a summary judgment motion if made under penalty of

perjury.” LeMay v. United States, Nos. 1:02CR105-6, 1:06CV336,

2010 WL 3522333, at *1 (W.D.N.C. Sept. 7, 2010) (unpublished)

(citing 28 U.S.C. $ 1746€(2)); accord, e.g., Nissho-Iwai Am. Corp.

v. Kline, 845 F.2d 1300, 1306 (5th Cir. 1988).

The document at issue (1) describes the statements therein as

made after “being first duly sworn” (but with no mention of the

nature of any oath or the identity/authority of any oath-giver)

(Docket Entry 41 at 1), (2) bears the signature of Defendant

Russell (see id. at 11), and (3) concludes with a notary’s signed

and sealed “certif[ication] that [Defendant Russell] personally

appeared before [the notary] th[at] day, acknowledging to [the

notary] that [Defendant Russell] signed the foregoing document”

(id.). As the plain language just quoted from that document

manifests, such a “notary’s certificate simply means that the

[document’s] signature is authentic.” Network Computing Servs.

18

Corp. v. Cisco Sys., Inc., 152 F. App’x 317, 321 (4th Cir. 2005).

Hence, “[i]lt is not a substitute for language indicating that

[Defendant Russell] understood [s]he risked prosecution for perjury

if [s]he gave false testimony.” Id. Under these circumstances:

Even though a notary public’s stamp appears on [this

document], none of thel statements therein] are

admissible for purposes of summary judgment because

[Defendant Russell] did not swear to the[ document’s]

contents under penalty of perjury and there is no

indication that the notary administered an oath to

[Defendant Russell]. Accordingly, the Court [should] not

consider any of the[ statements in this document] for

purposes of summary Judgment.

Latney v. Parker, No. 2:17CV24, 2017 WL 7794573, at *3 (E.D. Va.

July 20, 2017) (unpublished) )internal citation omitted), aff'd,

707 F. App’x 202 (4th Cir. 2017).

Plaintiff, in turn, did not sign the Amended Complaint under

oath or subject to perjury penalties (see Docket Entry 24 at 11)

and “the opponent of a summary judgment motion. . . cannot simply

rest upon his unverified complaint,” Higgins v. Scherr, 837 F.2d

155, 156-57 (4th Cir. 1988).’ Under these circumstances, the Court

(in evaluating, for summary judgment purposes, the subjective

element under the law governing Plaintiff’s claim at the time of

7 Plaintiff likewise did not verify the Response (see Docket

Entry 46 at 2) or the Response Memorandum (see Docket Entry 47 at

5) and thus his “[s]tatements in [those filings] . . . are not

evidence,” Hill, 2022 WL 1625020, at *3. Plaintiff did file two

versions of the same “Affidavit” (Docket Entry 47-1 at 1

(underscoring omitted); Docket Entry 49 at 1 £(underscoring

omitted)), but that document does not address the substance of

Plaintiff’s claim; instead, it explains his submission of medical

records (see Docket Entry 47-1 at 1; Docket Entry 49 at 1).

19

the events in question) may look only to the medical records

tendered by Defendant Russell (Docket Entry 43) and by Plaintiff

(Docket Entry 48), the admissibility of which neither has contested

(see Docket Entry 46 at 1-2; Docket Entry 47 at 1-5; Docket Entry

52 at 1-6). See, e.g., Jones v. Western Tidewater Reg’l Jail, 187

F. Supp. 3d 648, 654 (E.D. Va. 2016) (“[B]ecause [the d]efendants

have not objected that the materials submitted cannot be presented

in a form that would be admissible in evidence, and because the

[c]ourt perceives no reason why such medical records could not be

authenticated if [the p]laintiff was called upon to do so, the

[c]ourt could consider their contends [sic] undisputed for purposes

of the summary judgment motion.” (internal brackets and quotation

marks omitted)), reconsideration denied and judgment ordered, No.

2:15CV316, 2016 WL 3647591 (E.D. Va. June 30, 2016) (unpublished),

aff’d sub nom., Jones v. Butler, 671 F. App’x 60 (4th Cir. 2016).

In terms of specific citations to medical records, Defendant

Russell has pointed the Court to pages 8-10, 42-57, 65-66, 68-69,

and 72-73 of Docket Entry 43. (See Docket Entry 37 at 14-18.)

Those pages establish these pertinent facts:

1) on October 30, 2021, Plaintiff inquired of the Jail’s

medical staff “if he was going to be started on Hep[atitis] C

medication” (Docket Entry 43 at 8; see also id. at 42

(memorializing Plaintiff’s “Medical Sick Call” on October 29, 2021,

relating his statement that, “[b]efore [he] left prison in

20

September[, he] was told [he] ha[d] Hep[atitis] C and that [his]

liver enzymes were elevated to the extent [he] needed treatment,”

as well his request “to be seen to evaluate this”));

2) on November 2, 2021, Plaintiff submitted a “Medical

Request” (A) stating (i) that, “[o]n 10/30/2021[, he] was seen for

a sick call [he had] filled out about [his] treatment for

hep[atitis C, which he] was diagnosed [with] before [he] left

prison,” and (ii) that “the nurse that s[aw Plaintiff] told [him]

she was gonna [sic] make a note so [he] could start treatment,” and

(B) asking “when [it] was gonna [sic] start” (id. at 43);

3) on November 4, 2021, the Jail’s medical staff “informed

[Plaintiff] of providers [sic] response on [Plaintiff’s] sick call

[regarding] Hep[atitis] C/treatment for Hep[atitis] C,” which

“upset” Plaintiff and led him to demand “document[ation] in [his]

chart that ‘you won’t tx me’ [before he] walked away” (id. at 9);

4) on November 15, 2021, the Jail’s medical staff “[f]axed NC

Central Prison for records [on Plaintiff’s] Hep[atitis] C” (id.;

see also id. at 45 (request signed by Plaintiff and nurse at the

Jail on November 14, 2021, seeking “all records relating to

Hep[atitis] C” from “NC Central Prison/Medical Records”));

5) that same day, state prison officials faxed medical records

for Plaintiff to the Jail (see id. at 46 (cover sheet); see also

id. at 47 (state prison record dated July 8, 2021, documenting

Plaintiff’s “positive” test for “Hep[atitis] C Ab 06/10/21 with ALT

21

elevation”), 48 (state prison record dated July 29, 2021,

documenting Plaintiff’s “lab results” showing “elevated ALT 131 (0-

56), and AST 59 (4-44)”), 49 (state prison record dated July 30,

2021, documenting Plaintiff’s “previously negative HCV RNA now HCV

RNA 15,300,000,” need for “additional lab tests,” and “refer[al] to

hepatitis C committee”), 56 (state prison record documenting these

“Recommendations” from “Treatment of Hepatitis C” committee on

August 26, 2021: “Continue to monitor [Plaintiff] until his[]

release date. Case management should provide local treatment

options[.] . . . If [his] release date is extended, the Provider

should continue to monitor at the facility per HEP-C Policy and

refer back to the committee if any changes[.]” (all-caps font and

underscoring omitted)), 57 (state prison record dated August 31,

2021, documenting “Hep[atitis] C committee recommendation . . .

[to] continue to monitor [Plaintiff] until his[] release date” and

for “[c]ase management [to] provide local treatment options”));

6) on November 23, 2021, a person with an illegible signature

met with Plaintiff at the Jail’s medical office, with “Sgt. Gainey

present[,] to discuss Hep[atitis] C treatment” (id. at 9);8

7) that person (apparently Defendant Russell) “explained to

[Plaintiff] that at the county level Hep[atitis] C is not treated

8 That same signature appears elsewhere in these records in

contexts suggesting that it belongs to Defendant Russell. (See,

e.g., Docket Entry 43 at 13-17; see also Docket Entry 41 at 5

(reciting Defendant Russell’s unsworn statement that, “[o]n

November 23, 2021, [she] met with [Plaintiff] to discuss [his]

hepatitis C treatment issues” (citing Docket Entry 43 at 9)).)

22

due to the possibility of [a detainee] bonding out so that

treatment is not completed or that this is considered a forced

recovery so the ID doctor’s [sic] will not treat this until

[Plaintiff] ha[s] been out of [the J]ail for at least 6 months”

(id.; see also id. (“I advised him to let medical know if any thing

changes and we will see/treat any symptoms that may arise.”));9

8) from March 11 through 17, 2022, the Jail’s medical staff

twice drew Plaintiff’s blood for testing, but the laboratory failed

to provide results (see id. at 10);

9) on March 24, 2022, Plaintiff submitted a “Medical Sick

Call” complaining that, “when [he] woke up th[at] morning[, he] had

a yellow tint to [his] eyes and [his] right side hurt” (id. at 65;

see also id. (“[I] have been at a loss for energy and have had

little appetite. [T]he tint to my eyes left around noon but [I]

9 Consistent with the above-quoted records, two notes (the

first dated November 10, 2021, and the second dated November 17,

2021), each accompanied by the illegible signature evidently

belonging to Defendant Russell, handwritten on a “Medical Sick

Call” form Plaintiff submitted on November 2, 2021, read:

We do not have any record of you having Hep[atitis] C.

Hep[atitis] C is not treated in the county facilities[,]

due to it being considered a forced recovery. You will

have to be treated once released or in prison.

. . . .

Records showed Hep[atitis] C pos[itive,] but again this

treatment is not initiated in the county facilities due

to it being considered a force [sic] recovery per

Infectious Disease.

(Docket Entry 43 at 44.)

23

still feel sluggish and at loss for appetite[. I] was diagnosed

with hep[atitis C in SJeptember 2021[.]%));

10) that same day, a nurse assessed Plaintiff and

“[c]lomment[ed:] No yellowish tint to eyes or skin noted @ this

time” (id. at 66; see also id. at 67 (documenting results of urine

test performed on March 24, 2022));

11) on March 29, 2022, a nurse “[s]poke with [Plaintiff] about

his grievance,” i.e., his “concern[] about his hep[atitis] C

treatment,” and he “was told that if he was having symptoms he can

put in a sick call and [the Jail’s medical staff] would treat his

symptoms” (id. at 10; see also id. (“[Plaintiff] is also concerned

about his blood work and request[ed] that it get completed.”));

12) on March 30, 2022, “[Plaintiff’s] blood [was] redrawn with

no problem and [was] sent to the lab” with results returned on

April 4, 2022 (id.; see also id. at 68-69 (laboratory request and

results report indicating that, on or about March 30, 2022,

Defendant Russell ordered “comprehensive metabolic panel” and

“lipid panel” for Plaintiff (all-caps font omitted))}; and

13) on April 22, 2022, Defendant Russell ordered a “hepatic

function panel” for Plaintiff with results returned on April 23,

2022 (id. at 72-73; see also id. at 10 (noting blood draw and

receipt of results on April 22 and 24, 2022, respectively)).*°

10 “[{A] Hepatic Function Panel .. . evaluat[es] the status of

[the patient’s] Hepatitis C.” Thompson v. Taylor, No. 3:11CV28,

2011 WL 3842024, at *1 (M.D. Ala. Aug. 29, 2011) (unpublished); see

(continued...)

24

Plaintiff, for his part, did not explicitly address qualified

immunity in the Response (see Docket Entry 46 at 1-2) or the

Response Memorandum (see Docket Entry 47 at 1-5); however, he did

maintain that Defendant Russell “knew Plaintiff had Hepatitis C

while housed at [the Jail], knew Plaintiff saught [sic] treatment

multiple times and refused Plaintiff treatment multiple times” (id.

at 1-2; see also id. at 2 (asking “for an order denying Defendants

summary judgment”)).** But that line of argument ignores the key

10(...continued)

also Moshier v. United States, Civ. No. 05-180, 2008 WL 2275448, at

*3 (W.D. Pa. May 30, 2008) (unpublished) (describing “Hepatic

Function Panel” as “liver function test”).

11 In opposition to summary judgment, Plaintiff relied on

several of the same documents cited by Defendant Russell in support

of summary judgment. (See, e.g., Docket Entry 47 at 2-3 (citing,

inter alia, Docket Entry 48 at 1, 4, 7, 9, 11); see also Docket

Entry 37 at 14, 16 (citing, inter alia, Docket Entry 43 at 42-44);

compare Docket Entry 43 at 42-44, with Docket Entry 48 at 1, 4, 7,

9, 11.) Moreover, other records singled out in the Response

Memorandum (see, e.g., Docket Entry 47 at 3-4 (citing Docket Entry

48 at 13, 15, 21-23, 31)) do not contradict the facts established

by the records (quoted above) which Defendant Russell highlighted

in connection with her qualified-immunity defense (see Docket Entry

48 at 13 (“General Grievance” submitted by Plaintiff on November 5,

2021, repeating information also contained in Medical Sick Call

submitted by Plaintiff on October 29, 2021, and Medical Request

submitted by Plaintiff on November 2, 2021, and complaining that

“medical is refuseing [sic] to treat [Plaintiff] for Hep[atitis

]C,” with follow-up comments from “nurse” that “[Plaintiff’s]

inquiry ha[d] been forwarded to the provider for review,” that

“Heplatitis] C is not treated in the county facilities due to it

being considered what is referred to as ‘forced recovery,’” and

that “[Plaintiff] will have to be treated once [he is] released or

in prison”), 15 (“Medical Request” submitted by Plaintiff on

November 20, 2021, requesting treatment for Hepatitis C after

receipt by Jail of prison records showing diagnosis, with follow-up

note from “nurse” stating: “I was told by the provider that we do

not treat Hep[atitis C] on the county level. Hep[atitis] C would

(continued...)

25

issue raised by Defendant Russell’s qualified-immunity defense,

i.e., assuming “[she] subjectively recognized [the] substantial

risk of harm [posed by Plaintiff’s Hepatitis C condition],”

Parrish, 372 F.3d at 303, does the record “show that [she]

subjectively recognized that h[er] actions were inappropriate in

light of that risk,” id. (internal quotation marks omitted).

Importantly, “it is not enough that [Defendant Russell] should

have recognized that h[er] actions were inappropriate; [she]

actually must have recognized that h[er] actions were

insufficient.” Id. (emphasis in original). And, although

circumstantial proof can suffice on that second prong of the

subjective element of a deliberate indifference claim (as dictated

11(...continued)

only be treated if [you] went to prison. I have put you down for

a visit when [the provider] comes this week so that you can discuss

it with her.”), 21-23 (“General Grievance” and “Medical Request”

submitted by Plaintiff on March 24, 2022, and “General Grievance”

submitted by Plaintiff on March 25, 2022, complaining about lack of

treatment for Hepatitis C and asking for identity of responsible

persons, with follow-up notes from “nurse” referring Plaintiff back

to his discussion with Defendant Russell on November 23, 2021), 31

(“Medical Request” submitted by Plaintiff on October 5, 2022,

asking “when [his] labs are due to be done to check [his]

H[epatitis] C levels,” with response from “nurse” that “[w]e do not

do Hep[atitis] C levels since we do not do treatment in this

facility” (stray period omitted)); see also Docket Entry 47 at 4-5

(citing Docket Entry 48-1 (Medication Administration Records) and

Docket Entry 48-2 (Physician’s Order logs) for uncontested

proposition that “at no time was there a medicine used to treat

Hepatitis C ordered for or administered to Plaintiff,” describing

Docket Entry 48-3 at 5-17 as “lab results that show Plaintiff had

Hepatitis C and that the levels were very high,” and characterizing

Docket Entry 48-4 as “show[ing] Medicals [sic] hand written notes

(Progress Notes) that show Defendant was aware of Plaintiffs [sic]

serious medical need and still refused to treat Defendant [sic]”)).

26

by controlling precedent at the time of these events), e.g., if the

record permitted “a factfinder [to] conclude that [Defendant

Russell’s] response to [the] perceived risk was so patently

inadequate as to justify an inference that [she] actually

recognized that [her] response to th[at] risk was inappropriate,”

id., “[her] response to [the] perceived risk must be more than

merely negligent or simply unreasonable,” id. at 306-07; see also

Wynn v. Mundo, 367 F. Supp. 2d 832, 837 (M.D.N.C.) (Bullock, J.)

(“Significantly, an error of judgment on the part of prison medical

staff . . ., while perhaps sufficient to support an action for

malpractice, will not constitute a constitutional deprivation

redressable under § 1983.” (internal quotation marks omitted)),

aff’d, 142 F. App’x 193 (4th Cir. 2005).

Plaintiff’s proof falls short on that front. Specifically,

the record (as recounted above) reflects Defendant Russell’s belief

(summarized in her reply) “that[,] due to the policy of the local

outside infectious disease physician specialists not to provide

hepatitis C treatment to inmates at the Jail, Plaintiff could not

be provided the direct hepatitis C treatment he desired while he

was at the Jail.” (Docket Entry 52 at 2.) Previously detailed

record material additionally establishes “that [Plaintiff] received

routine annual bloodwork monitoring and as-needed symptom

management regarding his diagnosis of hepatitis C while at the

Jail.” (Id. at 3.) Nor does anything in the record support the

27

view that this “response to [the] perceived risk [posed by

Plaintiff’s condition] was so patently inadequate as to justify an

inference that [Defendant Russell] actually recognized that [her]

response to th[at] risk was inappropriate,” Parrish, 372 F.3d at

303;12 rather, “the evidence shows, at most, that [her] response to

[the] perceived substantial risk was unreasonable under the

circumstances,” id. at 307, and such a showing cannot overcome her

defense of qualified immunity under the then-clearly established

law, see id. at 306-07 (“[A defendant’s] response to a perceived

risk must be more than . . . simply unreasonable.”).

In sum, the Court should enter summary judgment in Defendant

Russell’s favor based on her qualified-immunity defense because

“the record before [the Court] here contains no evidence suggesting

that [she] recognized that [her] actions were inappropriate under

the circumstances.” Id. at 308.13

12 Of particular significance on that point (and as emphasized

by Defendant Russell’s supporting memorandum without rebuttal by

Plaintiff in his reply), “[Defendant] Russell’s actions in

monitoring and treating Plaintiff’s hepatitis C symptoms while he

was incarcerated were in line with prior recommendations by Central

Prison.” (Docket Entry 37 at 18 (citing Docket Entry 43 at 56-

57).) “As such, other physicians treating Plaintiff during his

incarceration prior to his time at the Jail had made the same

determination and recommendation regarding monitoring of his

hepatitis C until his ultimate release from incarceration,

indicating the reasonableness of the conduct.” (Id.)

13 Defendant Russell’s supporting memorandum contains a

separate argument section entitled “Plaintiff’s claims against

[Defendant] Russell for punitive damages must fail.” (Docket Entry

37 at 18 (bold and all-caps font omitted).) “With summary judgment

on [Plaintiff’s individual-capacity] claim [under Section 1983 due

(continued...)

28

Defendant Shaw

The Amended Complaint lodges solely an official-capacity claim

against Defendant Shaw. (See Docket Entry 24 at 2.) Under Section

1983, establishment of official-capacity liability requires proof

that “execution of a government’s policy or custom, whether made by

its lawmakers or by those whose edicts or acts may fairly be said

13(...continued)

to be] granted in favor of Defendant[ Russell], the question of

whether punitive damages are available [against her] becomes moot.”

Whyte v. PP & G, Inc., Civ. Nos. 13-2806, 13-3706, 2015 WL 3441955,

at *7 (D. Md. May 26, 2015) (unpublished). Lastly (regarding

Defendant Russell), the Amended Complaint asserts a claim against

her not just in her individual capacity, but also in her official

capacity. (See Docket Entry 24 at 2.) “[O]fficial-capacity suits

generally represent only another way of pleading an action against

an entity of which [the defendant] is an agent,” Monell v.

Department of Soc. Servs. of City of N.Y., 436 U.S. 658, 690 n.55

(1978); see also Kentucky v. Graham, 473 U.S. 159, 166 (1985)

(“[A]n official-capacity suit is, in all respects other than name,

to be treated as a suit against the entity [employing the

defendant].”), i.e., in this instance, Defendant Russell’s alleged

“Te]mployer” (Docket Entry 24 at 2), “Southern Health Partners”

(id.), see Rodriguez v. Smithfield Packing Co., Inc., 338 F.3d 348,

355 (4th Cir. 2003) (recognizing that “private corporations can []

be held liable under § 1983 if an official policy or custom of the

corporation cause[d] the alleged deprivation of federal rights”

(internal quotation marks omitted)). ™“[Q]ualified immunity does

not apply to such claims.” Atkinson v. Godfrey, F.4th □

2024 WL 1916760, at *7 (4th Cir. May 2, 2024) (internal

citation omitted). Accordingly, Plaintiff’s official-capacity

claim against Defendant Russell “[is] measured against current law,

without regard to whether [her employer’s] obligations were clearly

established at the time of the alleged violations.” Id. (internal

quotation marks omitted). As previously noted, Defendant Russell

did not develop any argument for summary judgment based on current

law and she likewise did not develop any argument for summary

judgment on the official-capacity claim against her (see Docket

Entry 37 at 11-19; see also id. at 11-12 (baldly declaring that

“Plaintiff appears to allege a § 1983 claim against [Defendant]

Russell . . . improperly in her official capacity”)). Under these

circumstances, the Court should only dismiss the individual-

capacity claim against Defendant Russell.

29

to represent official policy, inflict[ed] the injury.” Collins v.

City of Harker Heights, 503 U.S. 115, 121 (1992) (internal

quotation marks omitted). The records tendered by Defendants

Russell and Shaw, as well as the records tendered by Plaintiff,

discussed at length in the preceding subsection, do not show the

existence of a policy or custom of Defendant Shaw or the Office of

Sheriff of Cabarrus County (on whose behalf he, by definition, acts

as a final policy-maker), which deprived Plaintiff of treatment for

Hepatitis C. (See Docket Entries 43, 48, 48-1, 48-2, 48-3, 48-4.)

To the contrary (again as previously detailed), those records

reveal that Defendant Russell, a medical professional, concluded

that infectious disease specialists in the area would not treat

Plaintiff’s Hepatitis C as he desired, while he remained in

pretrial detention at the Jail, due to the possibility of

interruption of that treatment upon his release on bond.14

14 The “Affidavit of [Defendant] Shaw” (Docket Entry 40 at 1

(bold and all-caps font omitted)) contains statements from

Defendant Shaw confirming that (A) he “has contracted with Southern

Health Partners, Inc. (‘SHP’) for the provision of medical care to

inmates at [the Jail]” (id. at 2), (B) he has adopted a policy

calling for “[n]on-medical staff at [the Jail to] . . . rely on the

medical judgments and decisions of qualified medical staff” (id.),

(C) he “was not made aware of any issues with [Plaintiff’s] medical

treatment during his time at [the Jail] from September 11, 2021

through February 1, 2023, until [Defendant Shaw] was served with

. . . the Complaint in this action on January 3, 2023” (id. at 3),

(D) he “underst[ood] that infectious disease specialist medical

providers with whom SHP medical staff and SHP’s independent

contractors consulted would not treat inmates with hepatitis C,

such as [Plaintiff], who were housed in county facilities such as

[the Jail] due to the treatment being considered ‘forced recovery’”

(id.), (E) “[a]s of September 11, 2021 through February 1, 2023,

(continued...)

30

Furthermore, Defendant Shaw (acting as the final policy-maker

for the Office of the Sheriff of Cabarrus County) “wl[as] entitled

to rely on the medical judgments made by medical personnel

regarding Plaintiff’s [medical] treatment.” Lewis v. Hoke Cnty.,

No. 1:17CV987, 2020 WL 5213929, at *8 (M.D.N.C. Sept. 1, 2020)

(unpublished) (Webster, M.J.), recommendation adopted, 2022 WL

292928 (M.D.N.C. Feb. 1, 2022) (unpublished) (Osteen, J.), aff'd,

No. 22-6171, 2022 WL 1641282 (4th Cir. May 24, 2022) (unpublished),

cert. denied, U.S. , 143 S. Ct. 740 (2023); accord, e.g.,

Long v. Policarpio, No. 2:14CV10, 2015 WL 65061, at *3 (N.D.W. Va.

Jan. 5, 2015) (unpublished). Finally, “there is no evidence to

suggest that either [Defendant Shaw] or [any other policy-maker for

the Office of Sheriff of Cabarrus County] intentionally denied or

14(...continued)

there was no policy of [the Jail] which existed concerning the

treatment of hepatitis C” (id.), and (F) “any treatment decisions

concerning the treatment of hepatitis C would be ordered or

determined by outside medical professionals with whom medical staff

consulted” (id.). That document, however, does not contain either

a notarization (or other indicia) that Defendant Shaw made those

statements under an oath to tell the truth administered by a person

authorized to administer such oaths or a certification that

Defendant Shaw made those statements subject to perjury penalties.

(See id. at 1 (describing statements to follow as made after “being

first duly sworn,” but without recounting nature of oath or

identity/authority of person who administered it), 5 (setting forth

only notary’s “certif[ication] that [Defendant Shaw] personally

appeared before [notary and] .. . acknowledg[ed] to [notary] that

[Defendant Shaw] signed th[at ] document”).) For reasons and based

on authority discussed in the prior subsection (in relation to a

matching document filed by Defendant Russell), Defendant Shaw’s

foregoing statements - and any similar statements in the “Affidavit

of [Defendant] Russell” (Docket Entry 41 at 1 (bold and all-caps

font omitted)) - do not constitute evidence at summary judgment.

31

delayed Plaintiff from receiving access to medical care or . . .

intentionally interfered with any prescribed treatment.” Lewis,

2020 WL 5213929, at *8.15

Given these considerations, the record (construed in

Plaintiff’s favor) would not permit a reasonable fact-finder to

impose liability on Defendant Shaw in his official capacity for

deliberate indifference to Plaintiff’s serious medical needs and

the Court thus should enter summary judgment for Defendant Shaw on

the merits of this (lone) claim against him.16

CONCLUSION

Defendant Russell has not developed any argument that

Plaintiff’s individual-capacity and official-capacity claims

against her for deliberate indifference to his serious medical

needs in violation of the Fourteenth Amendment fail on the merits

under the elements recently adopted by the Fourth Circuit for such

claims; however, even viewing the record in Plaintiff’s favor, the

15 Notably, after Defendant Shaw raised summary judgment

contentions consistent with the analysis above (see Docket Entry 39

at 12-15), Plaintiff neither countered those contentions nor

otherwise constructed any meaningful rationale for Defendant Shaw’s

liability (see Docket Entry 46 at 1-2; Docket Entry 47 at 1-5).

16 That disposition would moot Defendant Shaw’s alternative

position that “punitive damages are not available or recoverable by

Plaintiff against [Defendant] Shaw in relation to any § 1983 claim

against [Defendant] Shaw in his official capacity” (Docket Entry 39

at 17). See, e.g., Singleton v. Champagne, Civ. No. 17-17423, 2019

WL 917728, at *5 (E.D. La. Feb. 25, 2019) (unpublished) (deeming

issue of “punitive damages in regard to [the d]efendants in their

official capacities [as] moot in view of [the] dismissals of

[those] official capacity claims”).

32

defense of qualified immunity – which incorporates the more

demanding, legal standard that governed these claims at the time

they arose – entitles Defendant Russell to summary judgment on the

individual-capacity claim (but not the official-capacity claim)

against her. In addition, the record (again, viewed in the light

most favorable to Plaintiff) establishes, as a matter of law, that

his official-capacity claim against Defendant Shaw lacks merit.

IT IS THEREFORE RECOMMENDED that the Summary Judgment Motions

(Docket Entries 36, 38) each be granted in part, in that the Court

(A) should enter summary judgment in favor of Defendant Russell on

Plaintiff’s claim against Defendant Russell in her individual

capacity (but not in her official capacity) based on her qualified-

immunity defense, and (B) should enter summary judgment (on the

merits) in favor of Defendant Shaw on Plaintiff’s claim against

Defendant Shaw in his official capacity (the only capacity

denominated against him in the Amended Complaint).

/s/ L. Patrick Auld

L. Patrick Auld

United States Magistrate Judge

May 28, 2024

33