Opinion

VAUGHN v. NORWOOD

Court
District Court, M.D. North Carolina
Filed
Jun 18, 2024
Cited by
0 cases
Authority
More cited than 24.7%

“I hold all of these opinions to a reasonable degree of medical certainty to a more likely than not probability.”

How later courts described this case

  • “I hold all of these opinions to a reasonable degree of medical certainty to a more likely than not probability.”
  • “Plaintiff’s September 3, 2019 hospital discharge instructions did not include instructions for wound care twice daily.” (emphasis added
  • reiterating that, when a plaintiff complains about provision of medical care during state confinement as “a pretrial detainee and not a convicted prisoner, the Fourteenth Amendment, and not the Eighth Amendment, governs his claim” (internal quotation marks omitted)
  • “Only disputes over facts that might affect the outcome of 5 the suit under the governing law will properly preclude the entry of summary judgment.”

Written by the judges who cited it.

The opinion

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

TARA JEAN VAUGHN, )

)

Plaintiff, )

)

v. ) 1:21CV960

)

TRACY NORWOOD, NP, and WASI HAQ, )

)

Defendants. )

MEMORANDUM OPINION AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

This case comes before the undersigned Magistrate Judge for a

recommendation on the Motion for Summary Judgment filed by

Defendants Tracy Norwood, NP, and Wasi Haq (collectively,

“Defendants”) (Docket Entry 43). (See Docket Entry dated Feb. 2,

2024.) Because the record establishes Defendants’ entitlement to

judgment as a matter of law, the Court should grant the instant

Motion.

INTRODUCTION

Via the Second Amended Complaint,1 Plaintiff has asserted a

claim under 42 U.S.C. § 1983 for “8th Amendment Cruel and [U]nusual

Punishment” (Docket Entry 20-1 at 3),2 against Defendant Norwood

(without specification of either individual or official capacity)

1 The Court (per the undersigned Magistrate Judge) previously

“deem[ed the] Second Amended Complaint as the operative pleading in

this case . . . .” (Text Order dated Jan. 19, 2023.)

2 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).

and against Defendant Haq (in his individual capacity) (see id. at

2; see also id. (identifying Defendants Norwood and Haq as “Health

Provider at County Jail” and “Health Care Provider at County Jail,”

respectively)), based on ‘“‘event[s which] happened in [the]

Greensboro County Jail .. . [in] Oct[ober 20]19” (id. at 4; accord

id. at 5). Specifically, the Second Amended Complaint alleges:

[Defendants] knew that [Plaintiff] was a [d]iabetic and

that the orders the hand [d]loctor from the [h]ospital

sent should not be[] changed. [Plaintiff’s] hand was

suppose[d] to be washed & changed 2X daily and the order

was changed to every 48 hours which wasn’t being

change[d] then. And they would put refused everytime

[sic] they didn’t change it and nobody ever ask[ed] why.

(Id. at 4 (emphasis added) .)

The Second Amended Complaint elaborates:

[Plaintiff] came to [the] Greensboro Jail with 4 stitches

in [her] finger due to a fight. The [h]and [d]octor from

[the] hospital sent strick [sic] orders [to] wash and

change [Plaintiff’s] badges [sic] twice daily because

[she is] a [d]iabetic, and to continue to take [thle rest

of [her] antibiotics[,] which in [the r]lecords states

[her] infection was clearing up when [she] left [the]

hospital. [On]ce [she r]leturn[ed] to [j]ail all orders

wlere] changed as well as medications, [at] which [point

her] hand [sta]rted tak[ing] a turn for the worse. They

wlere]n’t changing [her] banges [sic], and [were] saying

[she] refuse[d]. Infection started setting in and [she]

had to go back to [the] hospital in surgery. [The s]ame

thing [ha]ppen[ed] when [she] got back to [the] jail.

[The n]ext time [her] finger couldn’t be saved.

kKkKKK

[Plaintiff] lost [her] finger due to neglect[. She] was

suppose[d] to [have] been checked on daily. Bandages &

hand [were to be c]hanged twice a day [d]ue to the fact

[she] was a [d]iabetic, [but] they didn’t d[o] what [the]

[d]joctor said [to] d[o and her] medication was changed.

The doctor at [the h]Jospital stated in [r]lecords that

before leaving [the] hospital [the] infection was

clearing up & that once back to [the] jail he don’t [sic]

know what happened why [the] infection continue[d] to

accure [sic]. [Plaintiff] stayed in pain daily[ and she]

even decided to kill [her]self because [she] couldn’t

take it no [sic] more.

*****

[Plaintiff] ask[s] the Court[] to grant [her] 3 million

dollars for all [her] pain and suffering, [as well as]

th[e] fact that [she] can no longer use but 2 fingers

[on] her hand due to damages of infection. . . . [She

is] no longer able to work because [she is] right handed

and [she] cant [sic] use [her] hand anymore due to nerve

damages.

(Id. at 5 (emphasis omitted and added)); see also id. at 8 (“When

the nurse would come to pass medication[, Plaintiff] would [ask]

w[as] there anybody coming to clean and change [her] badges [sic],

[and she] was told answers like, ‘if we have time’ or ‘I’ll pass it

to next chief[,’] which [Plaintiff] wouldn’t get it done, [and she]

was being put down as Refuse on medical [r]ecords which [she] never

Refused!!” (parentheses omitted)).)

Defendants (A) answered, denying therein the material

allegations within the Second Amended Complaint (see Docket Entries

26, 27), and (B) moved for dismissal under Federal Rule of Civil

Procedure 12(b)(6) (see Docket Entries 28, 30). Following the

denial of those dismissal motions (see Docket Entry 36 (adopting

Docket Entry 34)), the Court (per the undersigned Magistrate Judge)

promptly “adopt[ed a] Scheduling Order” (Text Order dated May 23,

2023), authorizing six months of discovery (see id. (setting

discovery deadline of November 27, 2023)). After discovery closed,

3

Defendants timely filed the instant Motion (Docket Entry 43) and

supporting brief (Docket Entry 44), along with affidavits from

Defendants (Docket Entries 44-2, 44-3) and medical records

regarding Plaintiff (Docket Entries 44-4, 44-5, 44-6).3

The Clerk then sent Plaintiff a letter (dated December 28,

2023) advising her of her “right to file a 20-page response in

opposition to the [instant M]otion[]” (Docket Entry 45 at 1

(parentheses omitted)), as well as “affidavits setting out [her]

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 warned Plaintiff that

her “failure to respond or, if appropriate, to file affidavits or

evidence in rebuttal within the allowed time may cause the [C]ourt

to conclude that [ D]efendants’ contentions are undisputed and/or

that [she] no longer wish[es] to pursue the matter.” (Id.

(parentheses omitted).) Despite that warning, Plaintiff did not

respond. (See Docket Entries dated Dec. 27, 2023, to present.)

3 The first two of the above-referenced sub-sets of medical

records duplicate each other (with each sub-set bearing Bates

stamps of WP 00141 through WP280). (Compare Docket Entry 44-4,

with Docket Entry 44-5.) Defendants later corrected that oversight

by filing the medical records bearing Bates stamps of WP 00001

though 00140. (See Docket Entries 46, 46-1, 46-2, 46-3.) Because

the record does not establish that Defendants ever served that

late-filed material on Plaintiff (such that she could have raised

any objection to its consideration), the undersigned Magistrate

Judge has not considered it for present purposes.

4

DISCUSSION

“The [C]ourt shall grant summary judgment if [Defendants]

show[] that there is no genuine dispute as to any material fact and

[they are] 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

[Plaintiff].” 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 [Plaintiff].” Henry v. Purnell, 652 F.3d 524,

531 (4th Cir. 2011) (en banc). Put another way, Plaintiff “is

entitled to have the credibility of h[er] evidence as forecast

assumed, h[er] version of all that is in dispute accepted, and all

internal conflicts in it resolved favorably to h[er].” 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 could return a verdict

for [Plaintiff], 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

5

the suit under the governing law will properly preclude the entry

of summary judgment.”).4

As detailed in the Introduction, Plaintiff has asserted a

claim for violation of her “8th Amendment [right against c]ruel and

unusual [p]unishment” (Docket Entry 20-1 at 3), arising from

alleged inadequate medical care she received while confined at a

county jail (see id. at 4-5). That claim – commonly called

“deliberate indifference to serious medical needs,” Farmer v.

Brennan, 511 U.S. 825, 835 (1994) (internal quotation marks

omitted) – derives from this constitutional principle: “[W]hen the

State takes a person into its custody and holds h[er] there against

h[er] will, the Constitution imposes upon it a corresponding duty

to assume some responsibility for h[er] 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 h[er] unable to care for h[er]self, and at

the same time fails to provide for h[er] . . . medical care

. . .[,] it transgresses the substantive limits on state action set

by the Eighth Amendment [for convicted prisoners] and the Due

Process Clause [of the Fifth and Fourteenth Amendments for pretrial

4 “[T]he [ C]ourt must review the [instant M]otion, even if

unopposed, and determine from what [the Court] has before it

whether [Defendants are] entitled to summary judgment as a matter

of law.” Robinson v. Wix Filtration Corp., 599 F.3d 403, 409 n.8

(4th Cir. 2010) (emphasis and internal quotation marks omitted).

6

detainees].” Id. at 200; see also Mays v. Sprinkle, 992 F.3d 295,

300 (4th Cir. 2021) (reiterating that, when a plaintiff complains

about provision of medical care during state confinement as “a

pretrial detainee and not a convicted prisoner, the Fourteenth

Amendment, and not the Eighth Amendment, governs his claim”

(internal quotation marks omitted)); Loe v. Armistead, 582 F.2d

1291, 1293-94 (4th Cir. 1978) (“[The plaintiff] was not a prisoner

detained under a judgment of conviction; rather, he was a pretrial

detainee. Under such circumstances, the protections that apply to

him are found in the due process clause of the fifth amendment,

Since he was a federal prisoner, rather than in the eighth

amendment’s prohibition against cruel and unusual punishment.”).

The Second Amended Complaint, which Plaintiff dated as signed

on December 18, 2022 (see Docket Entry 20-1 at 11), identifies her

as a “[c]lonvicted and sentenced federal prisoner” (id. at 4; see

also id. at 2 (listing federal prison for Plaintiff’s address)),

just as does her original Complaint (see Docket Entry 2 at 4; see

also id. at 2 (listing federal prison for Plaintiff’s address)),

which she dated as signed on December 8, 2021 (see id. at 11).

Consistent with those representations about Plaintiff’s status at

the time she filed this action and the operative pleading, the

records of this Court and of a neighboring federal court reflect:

1) on October 15, 2014, this Court (per Senior United States

District Judge N. Carlton Tilley, Jr.) entered a judgment against

Plaintiff, memorializing the sentence of 66 months in prison

followed by three years of supervised release imposed upon her as

a result of her conviction for bank robbery, see Judgment, United

States v. Vaughn, No. 1:14CR88, Docket Entry 16, at 1-3 (M.D.N.C.

Oct. 15, 2014);

2) after completing that prison term, Plaintiff “was arrested

on” September 27, 2019, on a warrant issued for “[v]iolations of

[c]onditions of [s]upervised [r]elease,” Executed Arrest Warrant,

United States v. Vaughn, No. 1:14CR88, Docket Entry 32, at 1

(M.D.N.C. Oct. 1, 2019); see also United States v. Vaughn, No.

1:14CR88, Docket Entry 31, at 1 (M.D.N.C. Sept. 27, 2019) (slip

op.) (“Pending [a detention] hearing, [Plaintiff] is to be detained

in the custody of the United States marshal . . . .”);

3) a week later, the Court (per United States Magistrate Judge

Joe L. Webster) ordered Plaintiff “held in custody until the final

revocation hearing,” United States v. Vaughn, No. 1:14CR88, Docket

Entry 36, at 4 (M.D.N.C. Oct. 4, 2019) (slip op.);

4) on October 17, 2019, Plaintiff “was found to have violated

the terms and conditions of h[er] supervised release,” Judgment,

United States v. Vaughn, No. 1:14CR88, Docket Entry 40, at 1

(M.D.N.C. Nov. 27, 2019), resulting in her “commit[ment] to the

custody of the Bureau of Prisons [(‘BOP’)] for imprisonment for a

period of 18 months,” id. at 2;

8

5) “fo]n October 7, 2020, the BOP transferred [Plaintiff] to

the South Raleigh Re-Entry Center in Raleigh, North Carolina,”

Criminal Compl., United States v. Vaughn, No. 5:21CR211, Docket

Entry 1, at 3 (E.D.N.C. Mar. 5, 2021), with a “projected release

date from custody of February 15, 2021,” id.;

6) on December 24, 2020, Plaintiff “le[ft] th[at] facility and

[did] not return[],” id., leading the BOP to report “that [she] had

escaped,” id.;

7) on March 5, 2021, the United States District Court for the

Fastern District of North Carolina issued a warrant for Plaintiff’s

arrest for escape, pursuant to which she “was arrested on” March

23, 2021, Executed Arrest Warrant, United States v. Vaughn, No.

5:21CR211, Docket Entry 11, at 1 (E.D.N.C. Mar. 5, 2021), and

thereafter detained, see United States v. Vaughn, No. 5:21CR211,

Docket Entry 6 (E.D.N.C. Mar. 29, 2021) (slip op.); United States

v. Vaughn, No. 5:21CR211 (E.D.N.C. Mar. 31, 2021) (Text Order);

United States v. Vaughn, No. 5:21CR211, Docket Entry 13 (E.D.N.C.

Apr. 9, 2021) (slip op.);

8) on August 4, 2021, that court entered a judgment against

Plaintiff, memorializing the sentence of 21 months in prison

followed by three years of supervised release imposed upon her as

a result of her conviction for escape, see Judgment, United States

v. Vaughn, No. 5:21CR211, Docket Entry 32, at 1-3 (E.D.N.C. Aug. 4,

2021); and

9) “[o]n January 27, 2023, [Plaintiff] was released from the

[BOP],” United States v. Vaughn, No. 5:21CR211, Docket Entry 38, at

1 (E.D.N.C. Nov. 27, 2023) (slip op.).

A question nonetheless remains about the nature of Plaintiff’s

custodial status at the time of the events at issue in the Second

Amended Complaint, which allegedly “happened in [the] Greensboro [

j]ail [in] . . . Oct[ober 20]19” (Docket Entry 20-1 at 4 (emphasis

added)). In that regard (as detailed above), (A) Plaintiff spent

the period between September 27 and October 17, 2019, in federal

custody pending adjudication of a supervised release violation

petition, (B) from October 17, 2019, to December 24, 2020, she

served a federal revocation sentence, and (C) she returned to

federal custody on March 23, 2021 (then with still more than a

month to serve on her revocation sentence and subject to pretrial

detention on a new charge), where she remained until January 27,

2023 (under a new prison sentence as of August 4, 2021).

As concerns the first of those three blocks of time, a judge

of this Court (sitting by designation in a neighboring court) has

described a person “awaiting a final supervised revocation

hearing,” Dekattu v. Burnette, No. 3:22CV265, 2022 WL 17085950, at

*1 (W.D.N.C. Nov. 18, 2022) (unpublished) (Schroeder, J.), as “a

pretrial detainee,” id. That description makes sense “as a

practical matter[ because a person] detained while awaiting a

resolution of a petition to revoke supervised release . . . [i]s

10

not automatically guilty of the supervised release violation and is

thus properly treated as a pretrial detainee.” Sullivan v.

Multnomah Cnty., No. 3:19CV995, 2021 WL 4248082, at *2 (D. Or.

Sept. 17, 2021) (unpublished); but see Hinkson v. Rahbany, No.

4:18CV749, 2022 WL 741757, at *5 n.7 (E.D. Ark. Jan. 25, 2022)

(unpublished) (“[The plaintiff] was not a pretrial detainee, but

was a convicted prisoner since he was arrested for violating the

conditions of his supervised release, which had been imposed with

a [prior] conviction . . . .”). Accordingly, for part of the time-

frame highlighted in the Second Amended Complaint, i.e., October 1-

17, 2019, Plaintiff qualified as a federal pretrial detainee, but

for the rest of that time-frame, i.e., October 17-31, 2019, she

qualified as an adjudicated and sentenced federal prisoner. The

standards set by the Fifth Amendment’s Due Process Clause protected

Plaintiff during the former segment and the standards set by the

Eighth Amendment’s Cruel and Unusual Punishment Clause protected

her during the latter segment. See, e.g., United States v.

Wedington, No. 19-597, 2020 WL 4569524, at *5 n.2 (D. Md. Aug. 7,

2020) (unpublished) (“Eighth Amendment protections apply to

individuals who have been convicted and sentenced. For federal

pretrial detainees . . ., the due process protections of the Fifth

Amendment apply.” (internal citation omitted)).

Until recently, that distinction would have lacked functional

significance, because, after “the Supreme Court finally adopted a

11

[subjective] test for Eighth Amendment deliberate indifference

claims in Farmer,” Short v. Hartman, 87 F.4th 593, 606-07 (4th Cir.

2023); see also id. at 607 (“That test is subjective[.]”}, the

United States Court of Appeals for the Fourth Circuit determined

“that the same ‘deliberate indifference’ standard applies to both

[sentenced] inmates and pretrial detainees,” Brown v. Harris, 240

F.3d 383, 388 n.6 (4th Cir. 2001). But the Fourth Circuit now has

rejected that approach, see Short, 87 F.4th at 609-11, and has

formulated this four-element test for a pretrial detainee’s “claim

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

(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

5 Short involved a pretrial detainee in state (rather than

federal) custody, see Short, 87 F.4th at 6, but “[s]Jurely the

Fourteenth Amendment imposes no more stringent reguirements upon

state officials than does the Fifth [Amendment] upon their federal

counterparts,” Paul v. Davis, 424 U.S. 693, 702 n.3 (1976). ™“([The

Court] thus [should] consider [judicial] decisions interpreting

either [Due Process] Clause as relevant to [the] examination of

[Plaintiff’s] claim.” Id.

12

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 (internal citations and quotation marks omitted)

Hence, two different legal tests would apply to Defendants’

alleged conduct depending on when, within October 2019, that

conduct occurred. However, a further analytical complication

arises in this case because Plaintiff’s medical records (the

admissibility of which she has not contested’) conclusively refute

the allegations in the Second Amended Complaint that these material

“event[s ] happened in. . . Oct[ober 20]19” (Docket Entry 20-1 at

6 The line Short envisions between its new standard for

deliberate indifference to a pretrial detainee’s serious medical

needs and negligence may prove difficult to draw in many cases.

See Patterson v. Stanly Cnty. Det. Ctr., No. 1:22CV515, 2024 WL

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

recommendation adopted, slip op. (M.D.N.C. June 12, 2024).

7 “[Blecause [Plaintiff] ha[s] not objected that the materials

submitted cannot be presented in a form that would be admissible in

evidence, and because the [undersigned Magistrate Judge] perceives

no reason why such medical records could not be authenticated if

[Defendants] wlere] called upon to do so, the Court could consider

their conten[t]s undisputed for purposes of the [instant M]Jotion.”

Jones v. Western Tidewater Reg’l Jail, 187 F. Supp. 3d 648, 654

(E.D. Va. 2016) (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).

13

4 (emphasis added); see also id. at 5 (“I was in [j]ail in Oct[ober

20]19 and this is when it all happen[ed].”)): (A) “[Plaintiff]

came to [the] Greensboro [j]ail with 4 stitches in [her] finger due

to a fight” (id. at 5), (B) her “hand [sta]rted tak[ing] a turn for

the worse” (id.), and (C) “[i]nfection started setting in” (id.);

in particular, Plaintiff’s medical records show that:

1) Plaintiff actually entered the Greensboro jail on August

23, 2019, after her discharge from an overnight hospital stay for

treatment of a pre-existing infection in a fight-injured finger

(see, e.g., Docket Entry 44-5 at 27 (stating, in summary of

Plaintiff’s treatment from August 22-23, 2019, for “[a]bscess of

finger of right hand,” that “[she] will be discharged to jail”),

139 (documenting, in note from physician assistant at hospital,

that Plaintiff’s physical examination on August 22, 2019, revealed

“obvious swelling around the right ring finger,” which extend[ed]

into the hand,” as well as “a break in the skin . . . with purulent

drainage”); Docket Entry 44-6 at 3 (provider note from physician

assistant at hospital made on August 22, 2023: “[Plaintiff]

presents today for evaluation of a right finger infection. . . .

Reports that this was from a bite wound after punching someone in

the face . . . . [Plaintiff] is in police custody while here.”);

see also Docket Entry 44-5 at 71 (referring to “fight bite [as]

occurr[ing] on 8/18/2019”));

14

2) during that hospital stay, Plaintiff underwent “irrigation

and debridement [(‘1I&D’) of her] right ring finger[ by a s]urgeon”

(Docket Entry 44-5 at 35 (all-caps font omitted); accord id. at 72,

86, 95, 112, 116), and received “[t]reat[ment] with clindamycin”

(id. at 86; accord id. at 103);

3) on August 23, 2019, Plaintiff “[was] discharged . . . with

oral clindamycin” (id. at 86; accord id. at 95, 103, 122)° and

instructions for “[w]ound care” (id. at 27), providing for “daily

dressing changes” after “[w]lash[ing] finger with soap and water,

dry[ing it] well[, and] apply[ing] bacitracin” (id.);

4) upon Plaintiff’s return to the Greensboro jail, she

received (A) clindamycin three times a day from August 24-29, 2019

8 The “Medication Overview” in the “Hospital Summary” from

Plaintiff’s hospital stay on August 22-23, 2019, directs that she

should “start taking” only “acetaminophen” and “clindamycin”

(Docket Entry 44-5 at 27 (all-caps font omitted)), without any

mention of another antibiotic commonly called Bactrim (see id.);

however, the “Medication Overview” in the “Hospital Summary” from

Plaintiff’s hospital stay on August 30-September 3, 2019, directs

her to “stop taking[] sulfamenthoxazole-trimethoprim 800-160 MG

tablet (Bactrim DS, Septra DS)” (id. at 18 (all-caps font

omitted)), as do notations within the discharge summary from

September 3, 2019 (see id. at 90, 99; see also id. at 71

(indicating, in progress note made by physician assistant at

hospital on September 18, 2019, that, after Plaintiff’s hospital

stay on August 22-23, 2019, “[s]he was discharged with antibiotics

including clindamycin and Bactrim”), 116 (same, in progress note

made by doctor on August 30, 2019).) Jail medical records

similarly reflect some confusion on this front, as they document

orders by Defendant Norwood for clindamycin and acetaminophen for

Plaintiff on August 23, 2019 (see Docket Entry 44-6 at 51; accord

Docket Entry 44-5 at 7), with his order for Bactrim for her not

entered until August 30, 2019 (see Docket Entry 44-6 at 49; accord

Docket Entry 44-5 at 8), at which point he already had returned her

to the hospital (see, e.g., Docket Entry 44-6 at 10).

15

(see id. at 7; see also id. at 10 (indicating that Plaintiff

“[r]lefused” attempted “[a]dministration” of “clindamycin” once on

“08/23/2019"); Docket Entry 44-6 at 51 (documenting Defendant

Norwood’s order on August 23, 2019, for Plaintiff to receive

clindamycin three times a day)), as well as (B) daily “Wound Care,”

consisting of “[w]lash[ing] finger with soap and water, dryl[ing]

well[, and a]Jpplyling] bacitracin [before] apply[ing] dry dressing”

(Docket Entry 44-5 at 7), on at least August 23, 25, 26, 28, and

29, 2019 (see id.; see also id. at 10 (listing “Status” of “Hold

One Medpa [sic]” for “Wound Care” on “08/24/2019” and “08/27/2019”

in “Notes” corresponding to asterisks in entries for those dates in

chart of “Wound Care” (id. at 7)); Docket Entry 44-6 at 50

(documenting Defendant Norwood’s order on August 23, 2019, for

Plaintiff to receive daily wound care));

5) during Plaintiff’s wound care on August 30, 2019, Defendant

Norwood observed that (A) Plaintiff “did not tolerate [the dressing

change] well due to pain” (Docket Entry 44-6 at 24; accord id. at

121), as “she report[ed] 10/10 right 4th finger pain that [wa]s

continual, characterized as being achy and throbbing” (id. at 121;

see also id. (“Associated symptoms include: drainage and decreased

range of motion.”)), and (B) her finger appeared “moderately

swollen” with the “[l]lateral incision site [] producing purulent

drainage” (id.; see also id. (“[The] sutures are not intact. The

finger has poor range of motion and [is] tender to the touch.”));

16

6) that same day, (A) Defendant Norwood “[r]ecommend[ed a]

hospital evaluation due to length of time from original injury,

treatment, and current status” (id.; accord id. at 24), and

(B) “[Plaintiff] arrived [at the hospital] handcuffed in police

custody with 2 Sheriffs” (Docket Entry 44-5 at 121);

7) the emergency department doctor who evaluated Plaintiff at

that time noted that, since her discharge from the hospital on

August 23, 2019, “[she] ha[d] been in prison [sic] recovering, but

her pain ha[d] been getting worse[ and was] now severe, spreading

to the hand and forearm, [with] continued purulent drainage from

the wound” (id. at 116), despite the fact that she “[e]ndors[ed]

full compliance with her antibiotics” (id.);

8) after “discuss[ion] with [the surgeon who performed the I&D

on Plaintiff’s finger on August 22, 2019], [she] was given IV

vancomycin and clindamycin. . . [and] admitted to hospital service

for further care and evaluation” (id. at 120; accord id. at 104),

with a diagnosis of “[w]lound infection” (id. at 120);

9) on August 31, 2019, the hand surgeon who performed the

prior I&D on Plaintiff’s finger, (A) “assess[ed her with an

i]Jnfection [of the] RRF - recurrent” (id. at 115; accord id. at

122), and (B) performed another “[i]ncision and drainage of [her]

right ring finger” (id. at 122; accord id. at 72, 86; see also id.

at 122 (“[Plaintiff] returned back to the [hospital] with worsening

signs of infection, so she is here for repeat I and D. .. . The

17

old incision was opened. The old sutures were removed. There was

some purulence to the finger. This was thoroughly irrigated again.

The extensor tendon sheath was opened and irrigated as well as the

PIP joint. All tissues appeared clean and viable at the conclusion

of the procedure. . . . The wound was then loosely approximated

with one stitch . . . anda sterile dressing was applied.”));

10) Plaintiff remained in the hospital, based on her surgeon’s

“recommendation . . . for at least 2 to 3 days of IV antibiotics,

given this [wa]s a second episode of infection” (id. at 87), until

her “discharge[ on September 3, 2019,] on clindamycin” (id.; see

also id. at 85 (listing Plaintiff’s “Discharge Date[ as] 9/3/2019”

(bold font omitted)), 99 (including, in discharge summary prepared

on September 3, 2019, directive for Plaintiff to take “clindamycin

300 MG capsule . . . by mouth 3 (three) times daily for 10 days”

(bold font omitted))), along with “[d]lischarge wound care”

instructions “to wash [finger] with soap and water and cover [with]

dry gauze daily” and “gently squeeze wound to promote any drainage”

(id. at 90; accord id. at 24, 91, 100);°

9 Notwithstanding Plaintiff’s earlier “[e]ndors[ement to

hospital staff of] full compliance with her antibiotics” (Docket

Entry 44-5 at 116), the above-quoted “Discharge Summary” states

that “apparently [she] did not receive any antibiotic when she was

in prison [sic]” (id. at 87), without identifying the basis for

that statement (see id.; see also id. at 38 (observing, in

surgeon’s “Operative Report” for amputation of Plaintiff’s finger

on October 1, 2019, that, during week between her two

procedures, “[she] was incarcerated . . . and questionable taking

her antibiotics or receiving correction or performing her dressing

changes as instructed” (all-caps font omitted))).

18

11) upon Plaintiff’s return to the Greensboro jail on

September 3, 2019, Defendant Haq promptly reinstated the order for

Plaintiff to receive daily wound care and three doses of

clindamycin each day (see Docket Entry 44-6 at 46-47), but she

declined to cooperate with wound care and/or to take her prescribed

antibiotic on multiple occasions during the period of September 3-

17, 2019 (see id. at 90, 95, 101, 106, 146-48), even after

counseling by medical staff about “the importance of having wound

care completed, . . . [due to the risk] of [her] finger becoming

further infected” (id. at 95);'°

12) on September 13, 2019, Defendant Norwood “viewed and

dressed [Plaintiff’s] wound” (id. at 89} and noted that it

“appear[ed] to have reduced well, but continue[d] to be extremely

sensitive to touch” (id. at 116), with “[Plaintiff] continu[ing] to

report[] pain that is constant, throbbing and radiating into the

arm” (id.; see also id. (“[Plaintiff] states it hurts so bad she

10 Plaintiff’s medical records include a progress note entered

by Defendant Norwood on September 6, 2019, which references a

“follow-up per protocol after being sent to the emergency

department on 9/4/19 due to a severe right 4th finger infection.”

(Docket Entry 44-6 at 119 (emphasis added).) The underscored

language actually appears to refer to Plaintiff’s trip to the

emergency department on August 30, 2019. (See Docket Entry 44-3 at

4 (setting out Defendant Norwood’s sworn account of (A) Plaintiff’s

transport, “[o]n August 30, 2019, . . . to the hospital, per [his]

instruction,” (B) her subsequent “admi[ssion] to the hospital for

evaluation and treatment .. . [until her] discharge[] on September

3, 2019 to return to [the Greensboro jail],” and (C) his encounter

with her “[o]n September 6, 2019, . . . for one week follow-up per

protocol after [her] return from the hospital,” with no mention of

any additional hospital visit on September 4, 2019).)

19

wants to have it cut off. She says she has told multiple people

that she was going to kill herself due to the pain... .”));

13) as a result, Defendant Norwood referred Plaintiff for

“follow-up with [her] hand specialist/surgeon as soon as possible”

(id.; see also id. (placing Plaintiff on “[s]uicide watch due to

multiple mentions of killing herself because of the pain she feels”

(underscoring omitted))), leading to the scheduling of an

appointment for September 23, 2019 (see id. at 114);

14) in the interim, however, on September 17, 2019, Plaintiff

reported to jail medical staff that she was “[e]xperiencing severe

pain to [her right] hand from [the] 4th digit [which] radiate[d] up

to [her] elbow” (id. at 89; see also id. (highlighting “red viscera

pushing out through opening next to two sutures” and describing

difficulty of dressing change due to Plaintiff’s pain));

15) Defendant Norwood saw Plaintiff the next morning, “noted

that wound dehensience [sic] ha[d] occurred” (id. at 114; see also

id. (“The digit is moderately swollen with beefy red tissue

measuring 0.5-1 cm in diameter protruding from the lateral

aspect.”))}), assessed her as experiencing “[w]orsening wound status”

(id.), and “decided to send her to the emergency department for

further treatment” (id.);

16) upon arrival at the hospital on the morning of September

18, 2019, Plaintiff “state[d] she finished her antibiotics though

pain ha[d] progressively worsened and been persistent since [her]

20

discharge [on September 3, 2019]” (Docket Entry 44-5 at 71; see

also id. (“[Plaintiff s]tates she has additional swelling of tissue

out of the wound that began a few days ago.”));

17) during that hospital visit, the surgeon who previously

performed the two I&Ds on Plaintiff’s finger “reviewed images of

[her] finger in [her] chart” (id. at 78; see also id. at 79 (noting

that surgeon “suggest[ed]” images revealed “signs of possible

osteomyelitis” rather than “osteopenia”)), “state[d that her]

finger look[ed] improved” (id. at 79), “recommend[ed that] she

d[id] not need admission at th[at] time” (id.), and “[r]ecommend[ed

that she] start doxycycline twice daily x30 days, [maintain] good

wound care, and follow-up with him [the] next week” (id.);

18) Plaintiff was then “discharged back to prison [sic] with

instructions for follow-up and prescriptions” (id.; see also id. at

13 (summarizing, from Plaintiff’s hospital visit on September 18,

2019, her medication changes, wound care instructions, and

direction to “[s]chedule an appointment with [surgeon]”), 70

(documenting Plaintiff’s discharge on September 18, 2019, and

“transfer[ t]o [cJourt/law [e]nforcement”));

19) upon Plaintiff’s return to the Greensboro jail on

September 18, 2019, Defendant Norwood updated her antibiotic

prescription consistent with her discharge instructions (see Docket

Entry 44-6 at 37; accord Docket Entry 44-5 at 1; see also Docket

Entry 44-6 at 20 (reiterating continued need for “[wlound [clare

21

[d]aily until healed or otherwise instructed by surgical group” on

September 20, 2019 (bold font and underscoring omitted)));

20) on September 20, 2019, Defendant Norwood saw Plaintiff “on

follow-up per protocol after [she was] seen at [the hospital]

emergency department on 9/18/19 for worsening symptoms in [her]

right ring finger” (Docket Entry 44-6 at 111);

21) during that encounter, “[Plaintiff] report[ed] being

diagnosed with ‘myelitis[, i.e., a]n infection of the bone’” (id.),

but stated “that since starting her new antibiotic she feels much

better and is experiencing much less pain” (id.; but see Docket

Entry 44-5 at 4 (documenting Plaintiff’s refusal of new antibiotic

once on September 19, 2019));

22) upon examination, Defendant Norwood “noted [Plaintiff’s

finger] to display decreased swelling,” albeit still with “a

portion of tissue protruding that is beefy red measuring 1cm long”

(Docket Entry 44-6 at 111; see also id. (“Scant amount of

serosanguineous drainage noted on bandaging.”));

23) over the next week, Plaintiff refused to take her new

antibiotic and/or to cooperate with wound care multiple times (see

Docket Entry 44-5 at 4; Docket Entry 44-6 at 79, 81, 144-45);

24) on September 25, 2019, Plaintiff communicated to jail

medical staff that Plaintiff intended to have her surgeon “‘cut

[Plaintiff’s] finger off when [she went] back to [her]

appointment’” (Docket Entry 44-6 at 81); and

22

25) the amputation of Plaintiff’s finger took place on October

1, 2019 (see Docket Entry 44-5 at 38-39; Docket Entry 44-6 at 77;

see also Docket Entry 44-5 at 37 (stating, in surgeon’s note dated

October 1, 2019, that “[Plaintiff] desires amputation of finger –

I agree with this plan”); Docket Entry 44-6 at 33 (“Medication

Order,” entered by Defendant Haq on October 1, 2019, discontinuing

“[w]ound [c]are” order from September 3, 2019, and antibiotic order

from September 18, 2019 (bold font omitted)), 134 (request form

submitted by Plaintiff at Greensboro jail on October 1, 2019: “I’m

[r]equesting to go on Regular Population [n]ow that my hand is

better. I’m doing really great.”)).

In sum, the material events that culminated with the

amputation of Plaintiff’s finger on October 1, 2019, all transpired

between August 18, 2019 (i.e., the date of the injury to

Plaintiff’s finger), and September 25, 2019 (i.e., the date by

which Plaintiff had decided to have her finger amputated). And,

according to records from her federal criminal case in this Court,

Plaintiff’s custody at the Greensboro jail within that time-span

(i.e., beginning August 23, 2019, and continuing through September

25, 2019), stemmed from her then-pending, state charges. See

Amend. to Pet., United States v. Vaughn, No. 1:14CR88, Docket Entry

33, at 2 (M.D.N.C. Oct. 3, 2019) (“On September 26, 2019,

[Plaintiff] pled guilty to Misdemeanor (M) Resisting Public Officer

(Guilford County 19CR82204) and was sentenced to 35 days in jail.

23

The offense date was August 22, 2019. An accompanying charge of

(M) Possess Drug Paraphernalia . . . was voluntarily dismissed.”);

see also id. at 1 (“On August 22, 2019, when [Plaintiff] was

arrested for the [Resisting Public Officer and Possess Drug

Paraphernalia] violations . . ., an outstanding Order for Arrest

(OFA) related to [her] missing a scheduled state court appearance

regarding [a prior citation for Possession of Drug Paraphernalia]

was served.”), 2 (“Due to an injury to her right ring finger, the

jail refused to accept [Plaintiff on August 22, 2019,] and she was

transported to [the] hospital for follow-up treatment. She was

then transferred back to the jail on or about August 23, 2019.”).11

Because the medical care about which Plaintiff has complained

occurred during her confinement on state charges as “a pretrial

detainee and not a convicted prisoner, the Fourteenth Amendment,

and not the Eighth Amendment, governs h[er] claim.” Mays, 992 F.3d

at 300 (internal quotation marks omitted).12 And (as detailed

11 Plaintiff’s medical records reflect roughly the same end-

date for her time in state custody. (See Docket Entry 44-6 at 135

(request form submitted on October 1, 2019, in which Plaintiff

sought removal of medical-related charge from her jail account

because she was “on a [f]ederal [p]robation violation” and thus “a

federal [i]nmate,” to which, the next day, medical staff responded:

“As of 9/24/19 you became a federal inmate[, but] your charges are

before then.”), 137 (request form submitted on September 25, 2019,

in which Plaintiff sought removal of medical-related charge from

her jail account because she was “a federal [i]nmate,” to which,

the next day, medical staff responded: “You have federal charges

although you are not a federal inmate at this time.”).)

12 A determination that the alleged deprivation of medical

care happened during Plaintiff’s federal pretrial detention would

(continued...)

24

earlier) such Fourteenth Amendment claims now require Plaintiff to

prove these four elements:

(1) [Plaintiff] had a medical condition or injury that

posed a substantial risk of serious harm;

(2) [ D]efendant[s] intentionally, knowingly, or

recklessly acted or failed to act to appropriately

12(...continued)

have raised issues about the viability of Section 1983 as a vehicle

for her constitutional claim and/or of a direct constitutional

claim under the rationale in Bivens v. Six Unknown Named Agents of

the Fed. Bur. of Narcotics, 403 U.S. 388 (1971), particularly given

Defendants’ apparent status as private contractors (see Docket

Entry 44-2 at 1 (indicating that Defendant Haq’s work at Greensboro

jail represented only “part of [his] active clinical practice”), 5

(describing Defendants as “Wellpath[] healthcare providers”), 6

(same); Docket Entry 44-3 at 1 (“[Defendant Norwood] worked as a

Nurse Practitioner for an entity which was contracted to provide

medical care to inmates at [the Greensboro jail].”), 7 (describing

Defendants as “Wellpath[] healthcare providers”). Compare, e.g.,

Scott v. Keith, No. CV20-14, 2021 WL 4876211, at *3 (D. Mont. Sept.

13, 2021) (unpublished) (“[A]s [the plaintiff] was a federal

detainee, the jail was functioning in a federal capacity as to him,

and he cannot state a § 1983 claim against a private entity in this

context. Because [the plaintiff] was in federal custody at all

times giving rise to his allegations, his medical claims would

potentially arise under Bivens, the federal analogue to § 1983.

However, . . . the Supreme Court [has] declined to create an

implied damages remedy in an Eighth Amendment suit against a

private prison. Therefore, it is unclear at this point whether a

suit regarding medical care would be viable against [a private

healthcare provider] in [the plaintiff’s] circumstances . . . .”

(internal citations, quotation marks, and full case-name omitted)

(referring to Correctional Servs. Corp. v. Malesko, 534 U.S. 61

(2001))), recommendation adopted, 2021 WL 4860947 (D. Mont. Oct.

19, 2021) (unpublished), with, e.g., Jones v. Green, Civ. No. 03-

3335, 2006 WL 3677934, at *2 (D.N.J. Dec. 11, 2006) (unpublished)

(“The constitutional violations at issue in this case allegedly

occurred while [the p]laintiff was housed at a state correctional

facility . . . . Although [the p]laintiff is a federal prisoner,

his claims arise out of alleged conduct by [a state] official

. . . and [state] employee . . . . Because these individuals would

be acting under color of state law, [Section] 1983 provides [the

p]laintiff with sources of his cause of action to redress alleged

violation of his rights under . . . the Constitution.”).

25

address the risk that the condition posed; (3) [they]

knew or should have known (a) that [she] had that

condition and (b) that [their] action or inaction posed

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

[she] was harmed.

Short, 87 F.4th at 611.

In seeking summary judgment, Defendants did not raise any

dispute as to Short’s element (1) and sub-element (3) (a), i.e.,

that Plaintiff suffered from a finger infection “that posed a

substantial risk of serious harm,” id., and that they “knew or

should have known [] that [she] had that condition,” id. (See

Docket Entry 44 at 9 (“[I]t is undisputed that Defendants provided

medical care in response to Plaintiff’s serious medical needs on

over forty occasions during the relevant timeframe . .. .”); see

also id. at 9-10 (admitting that Defendants reviewed hospital

records setting forth treatment Plaintiff needed) .) Defendants,

however, have contested the sufficiency of the evidence as to

Short’s element (2), sub-element (3) (b), and element (4), i.e.,

that they “intentionally, knowingly, or recklessly acted or failed

to act to appropriately address the risk that [Plaintiff’s]

condition posed,” Short, 87 F.4th at 611, that they “knew or should

have known . . . that [their] action or inaction posed an

unjustifiably high risk of harm,” id., and that, “as a result,

[she] was harmed,” id. (See Docket Entry 44 at 10-12 (“Plaintiff’s

own medical records[] and . . . the affidavits of [Defendant]

Norwood and [Defendant] Hagq[] unquestionably establish[] that

26

[they] were compliant with the orders of [her] hand surgeon and

hospital discharge instructions, did not make any changes to those

orders unless specifically ordered by [her] hand surgeon or

hospital discharge instructions to do so, and . . . did not ignore

[her] medical needs. . . . Plaintiff failed to prove that

[Defendants’] alleged actions and/or inactions caused her finger to

be amputated. . . . [She] has put forth no evidence, including any

expert witness, to causally link [their] actions or inactions to

the amputation of her right ring finger.”).)

To support their position on those points, Defendants (as

noted in the foregoing quotation from their summary judgment brief)

relied not only on Plaintiff’s previously cataloged medical records

but also their affidavits (sworn before a notary (see Docket Entry

44-2 at 7; Docket Entry 44-3 at 9)), which contain, inter alia,

these pertinent averments:

1) Defendant Haq, who “ha[s] been a duly licensed medical

doctor” and “a board-certified family doctor since 1997” (Docket

Entry 44-2 at 1), and, “from March of 2018 through June of 2023, []

provided active, hands-on, clinical medical treatment to Guilford

County jail inmates” (id.), “ha[s] knowledge of the applicable

standards of care provided by [him]self and the other healthcare

providers to inmates in the [Greensboro jail]” (id.);

27

2) Defendant Norwood “ha[s] been a licensed Registered Nurse

since 2004 and a licensed Nurse Practitioner since 2013” (Docket

Entry 44-3 at 1);

3) “[Defendant Haq] treated Plaintiff . . . while she was

incarcerated at the [Greensboro jail] and ha[s] personally reviewed

her medical record attached [as Docket Entries 44-5 and 44-6]”

(Docket Entry 44-2 at 1);

4) “[Defendant Norwood also] treated Plaintiff . . . while she

was incarcerated at the [Greensboro jail] and ha[s also] personally

reviewed her medical record . . . attached [as Docket Entries 44-5

and 44-6]” (Docket Entry 44-3 at 1-2);

5) “[o]n August 22, 2019, prior to her incarceration,

Plaintiff was treated at [the hospital] for right ring finger pain

and swelling” (Docket Entry 44-2 at 1; accord Docket Entry 44-3 at

2), with examination revealing “a sign of active infection” (Docket

Entry 44-2 at 2; accord Docket Entry 44-3 at 2);

6) “Plaintiff was discharged from the hospital on August 23,

2019 and transported to [the Greensboro jail] with orders for

Tylenol as needed for mild pain, and Clindamycin for 10 days”

(Docket Entry 44-2 at 2; accord Docket Entry 44-3 at 2), as well as

“daily dressing changes” (Docket Entry 44-2 at 2 (emphasis added)

(internal quotation marks omitted); accord Docket Entry 44-3 at 2

(citing, inter alia, Docket Entry 44-5 at 27); see also Docket

Entry 44-2 at 2 (“Plaintiff’s August 23, 2019 hospital discharge

28

instructions did not include wound care twice daily.” (emphasis

added)); Docket Entry 44-3 at 3 (“[Defendant Norwood] reviewed

Plaintiff’s August 23, 2019 hospital discharge instructions and

hospital records which do not include instructions for wound care

twice daily.” (emphasis added) (citing, inter alia, Docket Entry

44-5 at 27)));

7) “[b]ased upon Plaintiff’s [medical] chart, the jail nursing

staff followed the aforementioned instructions” (Docket Entry 44-2

at 2; accord Docket Entry 44-3 at 3 (citing, inter alia, Docket

Entry 44-5 at 7 and Docket Entry 44-6 at 148); see also Docket

Entry 44-3 at 3 (“On August 23, 2019 upon Plaintiff’s arrival at

the jail, [Defendant Norwood] ordered Plaintiff the regimen of

Tylenol and Clindamycin as ordered by the hospital discharge

instructions . . . . On August 23, 2019, [he] also ordered [her]

wound care daily for 14 days per the hospital’s discharge

instructions . . . .” (emphasis added)));

8) “[o]n August 30, 2019, [Defendant Norwood] evaluated and

treated Plaintiff’s right ring finger” (Docket Entry 44-3 at 3),

“noted that [her] right ring finger was still infected and . . .

recommended hospital emergency department evaluation” (id. (citing

Docket Entry 44-5 at 24, 120-21));

9) “[o]n August 30, 2019, Plaintiff was taken to the hospital,

per [Defendant Norwood’s] instruction” (id. at 4), “was admitted to

the hospital for evaluation and treatment, including incision and

29

debridement, of her right ring finger and was discharged on

September 3, 2019 to return to [the Greensboro jail]” (id.);

10) “Plaintiff’s September 3, 2019 hospital discharge

instructions included . . . ‘wash[ing her finger] with soap and

water and cover[ing it with] dry gauze daily’” (id. (emphasis

added) (quoting Docket Entry 44-5 at 24)), as well as “another

regimen of Clindamycin three times daily for ten days” (id.

(citing, inter alia, Docket Entry 44-5 at 19); see also id.

(“Plaintiff’s September 3, 2019 hospital discharge instructions did

not include instructions for wound care twice daily.” (emphasis

added) (citing Docket Entry 44-5 at 18-24)));

11) “[Lo]n September 3, 2019, [Defendant Haq] ordered

Plaintiff’s Clindamycin regimen . . . and wound care daily for 30

days per the hospital discharge instructions” (id. (emphasis added)

(citing, inter alia, Docket Entry 44-6 at 46-47); accord Docket

Entry 44-2 at 3);

12) “[o]n September 6, 2019, [Defendant Norwood] saw Plaintiff

for one week follow-up per protocol” (Docket Entry 44-3 at 4),

“evaluated and treated [her] right ring finger[, ] noted that the

swelling and draining had reduced” (id.), and “ordered continuation

of daily dressing changes” (id. (emphasis added));

13) “on September 13, 2019, [Defendant Norwood] saw Plaintiff

again for follow-up evaluation” (id. at 4-5), “noted [her finger

wound] as reduced, but still extremely sensitive” (id. at 5; see

30

also id. (reciting that “Plaintiff made several suicidal comments

to others due to the pain and [Defendant Norwood] therefore placed

her on suicide watch for her safety”)), and “made a referral for

[her] to be seen by her hand surgeon .. . as soon as possible”

(id. (citing, inter alia, Docket Entry 44-6 at 116));

14) “[a]n appointment with the hand surgeon was scheduled for

September 23, 2019, but following additional examination by

[Defendant Norwood] on September 18, 2019, Plaintiff’s right ring

finger wound had separated so [he] sent [her] immediately to the

hospital emergency department” (id. (citing Docket Entry 44-6 at

113-14); accord Docket Entry 44-2 at 4);

15) “Plaintiff was taken promptly to the hospital emergency

department on September 18, 2019, per [Defendant Norwood’s]

referral” (Docket Entry 44-3 at 5), where her hand surgeon

“reviewed the images of Plaintiff’s finger and indicated that the

finger looked improved and that she did not need to be admitted”

(id.; accord Docket Entry 44-2 at 4);

16) Plaintiff’s hand surgeon “prescribed a 30-day course of

Doxycycline twice a day[ and] wound care daily” (Docket Entry 44-3

at 5 (emphasis added); accord Docket Entry 44-2 at 4; see also

Docket Entry 44-3 at 5 (‘“Plaintiff’s September 18, 2019 hospital

records or discharge instructions did not include wound care twice

daily.” (emphasis added)); Docket Entry 44-2 at 4 (same));

31

17) “[o]n September 18, 2019, upon Plaintiff’s return to the

jail from the hospital, [Defendant Norwood] ordered Plaintiff’s

regimen of Doxycycline for 30 days and daily wound care per the

hospital discharge instructions” (Docket Entry 44-3 at 5 (citing

Docket Entry 44-5 at 1 and Docket Entry 44-6 at 37); accord Docket

Entry 44-2 at 4);

18) “[o]n September 20, 2019, [Defendant Norwood] saw

Plaintiff per continuation of care protocol” (Docket Entry 44-3 at

5), “[she] reported that she was feeling much better after starting

her [new] antibiotic regimen” (id. at 6), and “exam reflected that

[her] right ring finger had decreased swelling and there was a

scant amount of drainage on the bandaging” (id.);

19) “[Defendant Norwood] continued the orders of ‘wound care

daily until healed or otherwise instructed by [Plaintiff’s]

surgical group’” (id. (emphasis added) (quoting Docket Entry 44-6

at 111 (without emphasis and capitalization from original)); see

also id. (“[Defendant Norwood] also ordered Plaintiff to continue

taking her antibiotic . . . .” (citing, inter alia, Docket Entry

44-6 at 112)));

20) “[a]part from the aforementioned dates when Plaintiff was

in the hospital . . ., the [jail] nursing staff provided Plaintiff

with daily wound care and medication administration per the

respective hospital discharge instructions . . . with the exception

of the instances . . . reflected in her medical records, when

32

Plaintiff refused to allow nursing staff to do so and/or refused to

take her prescribed antibiotics” (Docket Entry 44-2 at 5 (emphasis

added); accord Docket Entry 44-3 at 6 (citing, inter alia, Docket

Entry 44-5 at 1, 4, 5, 7, 10 and Docket Entry 44-6 at 79, 81, 91,

95, 101, 106, 144-48)); and

21) “[o]n October 1, 2019, Plaintiff presented to the hospital

per [her hand surgeon’s] instructions for evaluation and amputation

of her right ring finger due to continued infection” (Docket Entry

44-2 at 5; accord Docket Entry 44-3 at 7).

Additionally, Defendant Haq’s affidavit offers, inter alia,

these “opinions [] based on [his] education, experience, actual

care and treatment of Plaintiff, and [his] review of medical

records” (Docket Entry 44-2 at 7; see also id. (“I hold all of

these opinions to a reasonable degree of medical certainty to a

more likely than not probability.”)):

1) “all of [Defendant Haq’s] care and the care of all other

[jail] healthcare providers, including [Defendant] Norwood,

provided to Plaintiff met all applicable standards of healthcare”

(id. at 6);

2) “[a]ll of the nurses and medical staff that received any

report from Plaintiff during her incarceration promptly addressed

those concerns within the applicable standard of care timeframe”

(id.);

33

3) “all of the nurses and medical staff that received

recommendations from outside providers during the [relevant] time

period . . . promptly addressed [those recommendations] within the

applicable standard of care timeframe” (id.);

4) “[t]he [jail] medical staff carried out [Defendant Haq’s]

instructions and orders as well as those of the hospital and

[Plaintiff’s hand surgeon] to the satisfaction of all applicable

healthcare standards of care” (id.); and

5) “[n]one of [Defendant Haq’s] care or the care of any other

healthcare provider [at the Greensboro jail], including [Defendant]

Norwood, caused or contributed to, in any way, Plaintiff’s pain and

suffering, infection, or removal of her right ring finger” (id. at

6-7).

The foregoing evidence – from Defendants’ affidavits, as well

as Plaintiff’s medical records – refutes the Second Amended

Complaint’s material allegations, including:

1) “[Plaintiff’s] hand was suppose [sic] to be washed [and the

bandage] changed 2X daily and the order was changed to every 48

hours” (Docket Entry 20-1 at 4 (emphasis added); see also id. at 5

(“The [h]and [d]octor from [the] hospital sent strick [sic] orders

[to] wash and change [Plaintiff’s] badges [sic] twice daily

. . . . [Plaintiff] was suppose[d] to . . . [have her b]andages &

hand changed twice a day . . . .” (emphasis added)));

34

2) when Plaintiff “[r]eturn[ed] to [the Greensboro j]ail all

orders was [sic] changed as well as medications” (id. at 5

(emphasis omitted); see also id. (“[T]hey didn’t due [sic] what

[the hand d]octor said due [sic], [Plaintiff’s] medication was

changed.”));

3) jail medical staff “wasnt [sic] changing [Plaintiff’s]

banges [sic]” (id.; see also id. at 4 (alleging that Plaintiff did

not receive wound care even every 48 hours)); and

4) “[Plaintiff] lost [her] finger due to neglect” (id. at 5;

see also id. (insinuating that “[Plaintiff’s] hand started tak[ing]

a turn for the worse” because of alteration of her hand surgeon’s

orders and that “infection started setting in” because of jail

medical staff’s failure to “chang[e her] banges [sic]”)).

Moreover, as documented in the Introduction, despite proper

notice that her “failure to respond [to the instant Motion] or, if

appropriate, to file affidavits or evidence in rebuttal within the

allowed time may cause the [C]ourt to conclude that [ D]efendants’

contentions [we]re undisputed” (Docket Entry 45 at 1 (parentheses

omitted)), Plaintiff neither responded to the instant Motion nor

filed any affidavits or other evidence to dispute the above-

detailed evidence presented by Defendants (see Docket Entries dated

Dec. 27, 2023, to present). That fact leaves the evidence

submitted by Defendants uncontested, as Plaintiff did not sign the

Second Amended Complaint under oath or subject to perjury penalties

35

(see Docket Entry 20-1 at 11) and, as “the opponent of a summary

judgment motion . . .[, she] cannot simply rest upon hl[er]

unverified complaint,” Higgins v. Scherr, 837 F.2d 155, 156-57 (4th

Cir. 1988).*° Simply put, Plaintiff’s claims against Defendants for

deliberate indifference to her serious medical needs in violation

of the Fourteenth Amendment fail as a matter of law because the

record evidence, viewed in the light most favorable to Plaintiff,

would not permit a reasonable fact-finder to determine (A) that

Defendants “intentionally, knowingly, or recklessly acted or failed

to act to appropriately address the risk that [Plaintiff’s]

condition posed,” Short, 87 F.4th at 611, (B) that they “knew or

should have known . . . that [their] action or inaction posed an

unjustifiably high risk of harm,” id., and/or (C) that, “as a

result, [she] was harmed,” id."

13 Plaintiff thus cannot rely on the Second Amended

Complaint’s unverified allegation that jail medical staff “would

put Refused everytime [sic] they didn’t change [Plaintiff’s

bandage]” (Docket Entry 20-1 at 4), despite the fact that she

“never [rlefused” (id. at 8). See Legg v. Southern Health

Partners, Civ. No. 1:12-481, 2013 WL 474804, at *3 (D.S.C. Feb. 7,

2013) (unpublished) (“reject[ing] as unreasonable the unsupported

allegations that medical personnel . . . fabricated Plaintiff's

medical records”), aff’d, 552 F. App’x 205 (4th Cir. 2013). In any

event, Plaintiff has come forward with no evidence that Defendants

knew or should have known of any such activity.

14 As noted in the Introduction, the Second Amended Complaint

does not specify the capacity in which Plaintiff seeks to impose

liability on Defendant Norwood. (See Docket Entry 20-1 at 2.)

Because (for reasons discussed above) Plaintiff cannot establish

any constitutional violation in this case, any official-capacity

claim against Defendant Norwood cannot succeed. See Waybright v.

Frederick Cnty., 528 F.3d 199, 203 (4th Cir. 2008) (concluding that

(continued...)

36

CONCLUSION

Even when viewed in Plaintiff’s favor, the record establishes

that the claims against Defendants in the Second Amended Complaint

fail as a matter of law.

IT IS THEREFORE RECOMMENDED that the instant Motion (Docket

Entry 43) be granted and that summary judgment be entered in favor

of Defendants on Plaintiff’s claims against them.

/s/ L. Patrick Auld

L. Patrick Auld

United States Magistrate Judge

June 18, 2024

14(...continued)

official-capacity liability cannot attach “under [Section] 1983

without some predicate constitutional injury at the hands of the

individual [acting on behalf of the governmental entity], at least

in suits for damages” (internal quotation marks omitted)).

37

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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