# CONNELL v. RUSSELL, PA-C

> District Court, M.D. North Carolina · May 28, 2024

URL: https://www.frixlaw.com/law-library/cases/10254509

## Case

- **Court:** District Court, M.D. North Carolina
- **Decided:** May 28, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10254509. Public record. Not legal advice.