McClary v. Dixie

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF NORTH CAROLINA

CHARLOTTE DIVISION

CIVIL CASE NO. 3:18-cv-00395-MR

RONALD MCCLARY, )

)

Plaintiff, )

) MEMORANDUM OF

vs. ) DECISION AND ORDER

)

ELLA DIXIE, et al., )

)

Defendants. )

___________________________ )

THIS MATTER comes before the Court on Defendant’s Motion for

Summary Judgment. [Doc. 66].

I. PROCEDURAL BACKGROUND

On July 19, 2018, the Plaintiff Ronald McClary (“Plaintiff”), proceeding

pro se, filed this action pursuant to 42 U.S.C. § 1983 against Defendants Ella

Dixie, identified as a nurse at Lanesboro Correctional Institution

(“Lanesboro”), and John Herman McKie, identified as a dietician at

Lanesboro, for the violation of his civil rights while incarcerated at Lanesboro

in Polkton, North Carolina.1 [Doc. 1]. Plaintiff claims that Defendants, “while

acting in their official capacity[ies] did willfully engage in deliberate

1 Plaintiff is now housed at Tabor Correctional Facility in Tabor City, North Carolina.

indifference [in] violation of [the] 8th Amendment.” [Id. at 2]. In his

Complaint, which Plaintiff submitted under penalty of perjury, Plaintiff alleges

that he sent “many request[s]” to Nurse Dixie “concerning many medical

issues” and that Nurse Dixie is responsible for inmates being seen for

medical care. [Id.]. Plaintiff alleges that due to his not being seen in

response to his sick calls for “2 or 3 or 4 or 5 months” his medications were

delayed, and he suffered from urinary outlet obstruction, discomfort, pain,

and a urinary tract infection. [Id. at 3, 4]. As to Dietician McKie, Plaintiff

claims that McKie denied and delayed in approving Plaintiff’s special diet,

which he has been on for ten years and which helps treat Plaintiff’s high

blood pressure. [Id. at 2-3]. Plaintiff alleges that due to McKie’s actions,

Plaintiff was forced to eat a regular diet “for a time,” which caused stomach

problems, “higher blood,” and pre-diabetes. [Id. at 3]. For relief, Plaintiff

seeks compensatory and punitive damages. [Id. at 6].

Plaintiff does not allege when the conduct underlying his claims

occurred. [See Doc. 1]. With his Complaint, however, Plaintiff filed copies

of prison grievances he submitted in relation to the claims here. [Doc. 4].

Plaintiff submitted a grievance on August 4, 2015 related to the alleged lack

of timely medical care. In this grievance, Plaintiff stated that he had written

Nurse Dixie and “Lead Nurse Hopkins many times many request[s] to no

avail.” [Id. at 4]. Plaintiff appealed this grievance through Step Three. [Id.

at 5-6]. On September 14, 2015, Plaintiff filed another grievance. [Id. at 1].

In this grievance, Plaintiff complained that he needs to be on the “MNT-4

special diet” because he has lost 20 pounds due to inadequate nutrition from

his current diet. [Id.]. Plaintiff complained that he had requested the

nutritional assessment form and name of the dietician from Nurse Dixie and

Nurse Hopkins, but that this request had gone unanswered. [Id.]. Plaintiff

also appealed this grievance through Step Three. [Id. at 3].

Plaintiff’s Complaint survived initial review based on his claims of

deliberate indifference to his serious medical needs under the Eighth

Amendment. [Doc. 9]. On September 25, 2020, Defendants moved for

summary judgment. [Doc. 66]. Defendants argue that they are entitled to

summary judgment because Plaintiff’s claims against Nurse Dixie are barred

by res judicata and collateral estoppel,2 because they have sovereign

2 Plaintiff has filed at least two previous actions regarding allegedly inadequate medical

care at Lanesboro around or during the relevant times. On February 18, 2015, Plaintiff

filed an action against Dr. Anthony Searles, which he later amended to include Nurses

Dixie and Hopkins, among others, as Defendants. [Civil Case No. 3:15-cv-00077-FDW,

Docs. 1, 12]. This action was dismissed without prejudice for Plaintiff’s failure to exhaust

administrative remedies. [Id., Doc. 88]. On February 22, 2016, Plaintiff filed an action

against Nurse Hopkins, which he later amended to include Dr. Searles and others as

Defendants. [Civil Case No. 3:16-cv-00088-FDW, Docs. 1, 39]. This second case

involved allegations that Nurse Hopkins and Dr. Searles failed to treat Plaintiff’s medical

conditions from January 2015 through April 2016. [See id.; Doc. 39]. Eventually this

second case was dismissed on the merits. [Id., Doc. 112].

immunity and qualified immunity against Plaintiff’s claims, and because the

record shows that Defendants were not deliberately indifferent to Plaintiff’s

serious medical needs. [See Doc. 67].

In support of their summary judgment motion, Defendants submitted a

memorandum; their own Declarations; an Affidavit of Anthony Searles, M.D.;

and Plaintiff’s movement log and medical records. [Docs. 68-1 through 68-

10]. Thereafter, the Court entered an order in accordance with Roseboro v.

Garrison, 528 F.2d 309 (4th Cir. 1975), advising Plaintiff of the requirements

for filing a response to the summary judgment motion and of the manner in

which evidence could be submitted to the Court. [Doc. 69]. Plaintiff was

specifically advised that he “may not rely upon mere allegations or denials of

allegations in his pleadings to defeat a summary judgment motion.” [Id. at

2]. Rather, he must support his assertion that a fact is genuinely disputed

by “citing to particular parts of materials in the record, including depositions,

documents, electronically stored information, affidavits or declarations,

stipulations (including those made for purposes of the motion only),

admissions, interrogatory answers, or other materials.” [Id. (citing Fed. R.

Civ. P. 56(c)(1)(a))]. The Court further advised that:

An affidavit is a written statement under oath; that is,

a statement prepared in writing and sworn before a

notary public. An unsworn statement, made and

signed under the penalty of perjury, may also be

submitted. Affidavits or statements must be

presented by Plaintiff to this Court no later than

fourteen (14) days from the date of this Order and

must be filed in duplicate.

[Id. at 3-4 (citing Fed. R. Civ. P. 56(c)(4))]. Plaintiff has submitted nothing in

response to Defendants’ summary judgment motion, despite having been

granted an extension of time to do so. [See Doc. 70; 10/13/2020 Docket

Entry]. Because Plaintiff’s Complaint was submitted under penalty of

perjury, however, it is considered an affidavit for summary judgment

purposes. See Goodman v. Diggs, 986 F.3d 493, 498 (4th Cir. 2021)

(holding the district court erred in failing to consider a prisoner plaintiff’s

verified, though superseded, complaints as affidavits on summary

judgment). The Court will, therefore, consider its evidentiary value here. Id.

This matter is now ripe for adjudication.

II. STANDARD OF REVIEW

Summary judgment shall be granted “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 factual dispute is

genuine “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). A fact is material only if it might affect the outcome of the suit under

governing law. Id.

The movant has the “initial responsibility of informing the district court

of the basis for its motion, and identifying those portions of the pleadings,

depositions, answers to interrogatories, and admissions on file, together with

the affidavits, if any, which it believes demonstrate the absence of a genuine

issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)

(internal citations omitted).

Once this initial burden is met, the burden shifts to the nonmoving

party. The nonmoving party “must set forth specific facts showing that there

is a genuine issue for trial.” Id. at 322 n.3. The nonmoving party may not

rely upon mere allegations or denials of allegations in his pleadings to defeat

a motion for summary judgment. Id. at 324. Rather, the nonmoving party

must oppose a proper summary judgment motion with citation to

“depositions, documents, electronically stored information, affidavits or

declarations, stipulations …, admissions, interrogatory answers, or other

materials” in the record. See id.; Fed. R. Civ. P. 56(c)(1)(a). Courts “need

not accept as true unwarranted inferences, unreasonable conclusions, or

arguments.” Eastern Shore Mkt. Inc. v. J.D. Assoc.’s, LLP, 213 F.3d 174,

180 (4th Cir. 2000). The nonmoving party must present sufficient evidence

from which “a reasonable jury could return a verdict for the nonmoving party.”

Anderson, 477 U.S. at 248; accord Sylvia Dev. Corp. v. Calvert County, Md.,

48 F.3d 810, 818 (4th Cir. 1995).

When ruling on a summary judgment motion, a court must view the

evidence and any inferences from the evidence in the light most favorable to

the nonmoving party. Anderson, 477 U.S. at 255. “‘Where the record taken

as a whole could not lead a rational trier of fact to find for the nonmoving

party, there is no genuine issue for trial.’” Ricci v. DeStefano, 129 S. Ct.

2658, 2677 (2009) (quoting Matsushita v. Zenith Radio Corp., 475 U.S. 574,

587 (1986)). As the Supreme Court has emphasized,

“[w]hen the moving party has carried its burden under

Rule 56(c), the opponent must do more than simply

show there is some metaphysical doubt as to the

material facts …. Where the record taken as a whole

could not lead a rational trier of fact to find for the

nonmoving party, there is no ‘genuine issue for trial.’”

Matsushita Elec. Industrial Co. v. Zenith Radio Corp.,

475 U.S. 574, 586-87, 106 S. Ct. 1348 (1986)

(footnote omitted). “[T]he mere existence of some

alleged factual dispute between the parties will not

defeat an otherwise properly supported motion for

summary judgment; the requirement is that there be

no genuine issue of material fact.” Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 247-28, 106 S. Ct.

2505 (1986). When opposing parties tell two

different stories, one of which is blatantly

contradicted by the record, so that no reasonable jury

could believe it, a court should not adopt that version

of the facts for purposes of ruling on a motion for

summary judgment.

Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 1776 (2007).

III. FACTUAL BACKGROUND

The uncontroverted forecast of evidence in the light most favorable to

the nonmovant is as follows:

Nurse Dixie, a board-certified registered nurse since 1982, began

working for the North Carolina Department of Public Safety (NCDPS) in

2001. [Doc. 68-1 at ¶¶ 2-3: Dixie Dec.]. On December 12, 2014, Nurse Dixie

was promoted to Regional Nurse Supervisor for the Western Region of North

Carolina. Nurse Dixie was in that position until she retired in April 2016. In

March 2015 and in the fall of 2015, Nurse Dixie underwent surgery. Both

procedures required physical therapy. As a result, Nurse Dixie was based

in Scotland Correctional Institution during that time to be closer to home and

her physical therapist. [Id. at ¶ 4]. One of Nurse Dixie’s duties as Regional

Nurse Supervisor was to staff the facilities in the Western Region with

nurses. [Id. at ¶ 5]. If a Nurse Supervisor position at a particular facility

needed to be filled, Nurse Dixie would sometimes fill in. When Nurse Dixie

was acting as Nurse Supervisor at a particular facility, it was not her

responsibility to schedule the nurses there. Rather, the scheduling was

performed by the Lead Nurse. [Id. at ¶ 6]. Furthermore, when Nurse Dixie

filled in as Nurse Supervisor, she was not responsible for administering

medication or providing direct healthcare to inmates, except when a “code”

was called, and emergency care was required. [Id. at ¶ 7]. Nurse Dixie did

not see inmates on sick call. [Id.].

Pursuant to NCDPS policy and procedures, all inmates can access

routine healthcare, including medical, dental, and mental health care,

through the sick call process. Sick call forms are readily available in all

inmate-housing areas and upon request. Sick call requests are then routed

to the appropriate healthcare provider and individual appointments are

scheduled. [Id. at ¶ 10].

Nurse Dixie reviewed Plaintiff’s medical records, which are maintained

by the NCDPS, covering the period of December 12, 2014 to April 27, 2016.

[Id. at ¶ 9]. This review confirmed Nurse Dixie’s memory that she did not see

Plaintiff in a clinical setting during that time. Nurse Dixie was never his

primary, triage, or treating nurse. [Id. at ¶ 13]. Moreover, Nurse Dixie did

nothing to impede Plaintiff’s access to medical care or to employ the sick call

procedure. [Id. at ¶ 14]. Plaintiff’s records reflect that at no time was he

denied the level of care deemed medically necessary to address his

complaints. Rather, they show that that Plaintiff was referred to physicians

and physician extenders on a regular basis. [Id. at ¶ 16]. There is also no

indication that Plaintiff’s medical needs, including his medications, were

denied, or even delayed.3 [Id. at ¶ 17; see id. at ¶ 24]. Nurse Dixie does not

recall ever receiving a request directed to her from Plaintiff relating to a delay

in his receiving medications. [Id. at ¶ 18]. Moreover, the medical records do

not support Plaintiff’s contention that his medical conditions worsened

appreciably while he was incarcerated at Lanesboro, as he alleged.4 [Id. at

¶ 20].

Dietician McKie, a Registered Dietician licensed in the State of North

Carolina, earned a master’s degree in clinical nutrition in 2004. [Doc. 68-2

at ¶¶ 2-3: McKie Dec.]. In 2013, McKie became a regional dietician for the

NCDPS. [Id. at ¶ 5]. Since 2015, McKie has assisted the Western Regional

Dietician, handling recruitment for food services and special projects. [Id. at

¶ 6].

3 Plaintiff filed a substantial number of sick call requests during the relevant time, which

based on the dates of Plaintiff’s relevant grievances and the date of the filing of Plaintiff’s

Complaint for limitations period purposes, was between July 19, 2015 and September 14,

2015. [See Doc. 68-10]. (Giving Plaintiff the benefit of every reasonable inference and

based on his claims of delay in receiving medical care for a period up to five months, the

Court considers Plaintiff’s medical records from February 2015 to September 14, 2015.).

Plaintiff’s complaints in these numerous sick call requests were addressed within a

reasonable time, particularly given the volume of Plaintiff’s requests for medical care and

the nature of Plaintiff’s complaints. [See id.].

4 While Plaintiff alleges that he sent “many requests” for medical care to Nurse Dixie, who

he alleges was responsible for ensuring that he be provided medical care, and that his

care and medications were delayed for months, the medical record and other forecast of

evidence plainly refutes Plaintiff’s claims and wholly fails to support Plaintiff’s direct

allegations against Nurse Dixie. The Court, therefore, cannot consider Plaintiff’s

allegations on summary judgment. See Scott, 550 U.S. at 380, 127 S.Ct. at 1776.

The Health Services Policy & Procedure Manual Care and Treatment

of Patient – Restrictive Procedures Section (the “Meal Policy”) sets forth the

policy for special management meals. [Id. at ¶ 9]. The Meal Policy states

that the “responsible facility provider must determine whether or not the

special management meal is appropriate.” [Id. at ¶ 10 (citing Meal Policy

I.B.2)]. The “provider” is a medical doctor, a physician assistant, or a nurse

practitioner, not a registered nurse or a clinical dietician. [Id. at ¶ 11]. In

determining whether a special management meal is appropriate, the general

procedure is as follows. Based on a visit or non-patient contact, a provider

requests a nutritional consultation via the Healthcare Electronic Record for

Offenders (“HERO”) database. A dietician then completes the nutritional

assessment in the Food Management System and loads the assessment to

the provider’s queue in HERO for review and approval. The provider orders

the recommended diet or enters a diet of their choosing in HERO. Then,

medical staff assigned to administer the special management diet reviews

the provider’s order with the offender, provides nutrition education, and

provides the offender a letter detailing the diet with start and expiration dates.

The dietician does not control the scheduling of offenders to receive a new

diet order or changes to a current diet order. [Id. at ¶ 12].

During the times relevant to Plaintiff’s action, Lanesboro did not have

an assigned dietician. [Id. at ¶ 2]. As such, from time to time, McKie was

asked to assist with dietary consultations for inmates there. [Id. at ¶ 14].

McKie completed a nutritional consultation request for Plaintiff from Nurse

Bradford on June 2, 2015. [Id.]. McKie loaded the completed consult in

HERO the same day for approval by Dr. Haynes. [Id.]. Based on the

diagnosis of gastroesophageal reflux disease (GERD), McKie recommended

the low fat, bland diet for six months. Plaintiff refused this diet. [Id.]. On

December 2, 2015, McKie completed another nutritional consultation request

for Plaintiff from Nurse Practitioner Veronica Southerland. McKie loaded the

completed consult in HERO on December 4, 2015. Based on diagnoses of

hypertension and GERD, McKie recommended the low fat, low sodium MNT

3 no snack diet for twelve months. McKie recommended this diet because it

is therapeutic for hypertension and GERD and it exceeded Plaintiff’s

estimated caloric requirements. When McKie made this recommendation,

Plaintiff’s weight was listed as 173 pounds, a healthy weight for Plaintiff’s

height. [Id.]. Again, the provider, not McKie, made the final decision

regarding Plaintiff’s nutritional plan. [Id. at ¶ 15]. McKie has not been

involved in Plaintiff’s care since December 2015.5 [Id. at ¶ 16].

III. DISCUSSION

Defendants argue that they are entitled to summary judgment because

Plaintiff’s claims against Nurse Dixie are barred by res judicata and collateral

estoppel, because they have sovereign immunity and qualified immunity

against Plaintiff’s claims, and because the record shows that Defendants

were not deliberately indifferent to Plaintiff’s serious medical needs.

A. Sovereign Immunity

Plaintiff sues Defendants for conduct occurring while Defendants were

acting in their official capacities only.6 [Doc. 1 at 2]. A suit against a state

official in his official capacity is construed as against the state itself. Will v.

Michigan Dep’t of State Police, 491 U.S. 58, 71 (1989). It is well settled that

neither a state nor its officials acting in their official capacities are “persons”

5 Plaintiff alleges that McKie denied and delayed in approving Plaintiff’s special diet, which

Plaintiff claims resulted in stomach issues, higher blood pressure, and pre-diabetes.

Again, however, the forecast of evidence, including Plaintiff’s medical record, does not

reflect any delay or denial of a special diet by Dietician McKie but rather that McKie acted

promptly in completing two dietary consultations for Plaintiff and that Plaintiff’s medical

provider was ultimately responsible for ordering and implementing any special diet. The

Court, therefore, cannot consider Plaintiff’s allegations for evidentiary purposes here.

See Scott, 550 U.S. at 380, 127 S.Ct. at 1776.

6 Defendants do not argue that Plaintiff’s claims were limited to Defendants’ official

capacity only. As such, for the sake of a complete record, the Court will address Plaintiff’s

claims as though they were also asserted against Defendants in their individual

capacities.

subject to suit under 42 U.S.C. § 1983. Id.; see Monell v. Dep’t of Soc.

Servs., 436 U.S. 658, 690 n.55 (1978). Moreover, the Eleventh Amendment

generally bars lawsuits by citizens against non-consenting states brought

either in state or federal courts. See Alden v. Maine, 527 U.S. 706, 712-13

(1999); Seminole Tribe of Florida v. Florida, 517 U.S. 44, 54 (1996).

Although Congress may abrogate the states’ sovereign immunity, it

has not chosen to do so for claims under 42 U.S.C. § 1983. See Quern v.

Jordan, 440 U.S. 332, 343 (1979). Likewise, North Carolina has not waived

its sovereign immunity by consenting to be sued in federal court for claims

brought under 42 U.S.C. § 1983. See generally, Mary’s House, Inc. v. North

Carolina, 976 F.Supp.2d 691, 697 (M.D.N.C. 2013) (claim under 42 U.S.C.

§ 1983 barred by sovereign immunity of North Carolina). As such,

Defendants are entitled to summary judgment on Plaintiff’s claims, which

were asserted against Defendants in their official capacities only. The Court

will, therefore, grant Defendant’s Motion for Summary Judgment on this

ground.

B. Eighth Amendment

Claims under 42 U.S.C. § 1983 based on an alleged lack of or

inappropriate medical treatment fall within the Eighth Amendment’s

prohibition against cruel and unusual punishment. Estelle v. Gamble, 429

U.S. 97, 104 (1976). To state a claim under the Eighth Amendment, a

plaintiff must show a “deliberate indifference to serious medical needs” of the

inmate. Id. “Deliberate indifference requires a showing that the defendants

actually knew of and disregarded a substantial risk of serious injury to the

detainee or that they actually knew of and ignored a detainee’s serious need

for medical care.” Young v. City of Mt. Ranier, 238 F.3d 567, 575-76 (4th

Cir. 2001) (citations omitted). “To establish that a health care provider’s

actions constitute deliberate indifference to a serious medical need, the

treatment must be so grossly incompetent, inadequate, or excessive as to

shock the conscience or to be intolerable to fundamental fairness.” Miltier v.

Beorn, 896 F.2d 848, 851 (4th Cir. 1990).

Allegations that might be sufficient to support negligence and medical

malpractice claims do not, without more, rise to the level of a cognizable

Section 1983 claim. Estelle, 429 U.S. at 106; Grayson v. Peed, 195 F.3d

692, 695 (4th Cir. 1999) (“Deliberate indifference is a very high standard—a

showing of mere negligence will not meet it.”). “[E]ven if a prison doctor is

mistaken or negligent in his diagnosis or treatment, no constitutional issue is

raised absent evidence of abuse, intentional mistreatment, or denial of

medical attention.” Stokes v. Hurdle, 393 F. Supp. 757, 762 (D. Md. 1975),

aff’d, 535 F.2d 1250 (4th Cir. 1976). Further, the constitutional right is to

medical care. No right exists to the type or scope of care desired by the

individual prisoner. Id. at 763. Therefore, a disagreement “between an

inmate and a physician over the inmate’s proper medical care [does] not

state a § 1983 claim unless exceptional circumstances are alleged.” Wright

v. Collins, 766 F.2d 841, 849 (4th Cir. 1985) (dismissing the plaintiff’s § 1983

claim against a defendant physician for allegedly discharging the plaintiff too

early from a medical clinic, as such claim did not rise to the level of deliberate

indifference but would, “at most, constitute a claim of medical malpractice”).

To succeed on a claim against Defendants under the Eighth

Amendment, Plaintiff must show a deliberate indifference to Plaintiff’s

serious medical needs. Estelle, 429 U.S. at 104. To establish such

indifference, the “treatment must be so grossly incompetent, inadequate, or

excessive as to shock the conscious or to be intolerable to fundamental

fairness.” Miltier, 896 F.2d at 851. Absent exceptional circumstances, a

disagreement between a prisoner and a healthcare provider over the

prisoner’s proper medical care is not grounds for a § 1983 claim. Wright, 766

F.2d at 849.

Here, as to Nurse Dixie, the forecast of evidence does not show that

she knew of or disregarded any of Plaintiff’s serious medical needs. See

Young, 238 F.3d at 575-76. Nurse Dixie did not treat Plaintiff and was not

responsible for his medications. Nor was Nurse Dixie responsible for

ensuring that Plaintiff’s sick call requests were answered. Even if Nurse

Dixie were somehow responsible for Plaintiff’s timely medical care, the

forecast of evidence reflects that Plaintiff’s many complaints were addressed

and treated within a reasonable time. There is simply no forecast of evidence

to support Plaintiff’s Eighth Amendment claim against Nurse Dixie. The

Court will, therefore, grant summary judgment for Nurse Dixie.7

As to Dietician McKie, the relevant forecast of evidence shows, at best,

a disagreement between Plaintiff and the provider who ultimately ordered

Plaintiff’s diet plan based on McKie’s June 2015 diet recommendation. At

that time, McKie recommended a low fat, bland diet for six months. Plaintiff

refused this diet, apparently because he believed that he needed the MNT-

4 special diet instead. A disagreement between an inmate and a physician

over the inmate’s proper medical care does not support a § 1983 claim

absent the showing of exceptional circumstances. Wright, 766 F.2d at 849.

There is no forecast of evidence supporting any such exceptional

7 Defendant Dixie also argues that Plaintiff’s claim against her is barred by res judicata

and collateral estoppel because Plaintiff’s previous lawsuit against Nurse Hopkins and

Dr. Searles, Case No. 3:16-cv-88, also involved the alleged lack of adequate medical

care at Lanesboro at the relevant times. [See Doc. 67 at 11-13]. Because Plaintiff’s claim

against Nurse Dixie fails on the merits in any event, the Court declines to address this

argument.

circumstances here. As such, there is no genuine issue for trial on Plaintiff’s

claim against McKie and the Court will grant summary judgment accordingly.

C. Qualified Immunity

“Qualified immunity protects officers who commit constitutional

violations but who, in light of clearly established law, could reasonably

believe that their actions were lawful.” Henry v. Purnell, 652 F.3d 524, 531

(4th Cir. 2011) (en banc). “To determine whether an officer is entitled to

qualified immunity, the court must examine (1) whether the plaintiff has

demonstrated that the officer violated a constitutional right and (2) whether

that right was clearly established at the time of the alleged violation.” E.W.

ex rel. T.W. v. Dolgos, 884 F.3d 172, 178 (4th Cir. 2018) (internal quotation

marks omitted). The doctrine of qualified immunity “gives government

officials breathing room to make reasonable but mistaken judgments and

protects all but the plainly incompetent or those who knowingly violate the

law.” Smith v. Ray, 781 F.3d 95, 100 (4th Cir. 2015) (internal quotation

marks omitted).

Here, because Plaintiff has not presented a forecast of evidence that

Defendants violated a constitutional right, Defendants would be entitled

qualified immunity on individual capacity claims, had Plaintiff asserted such

against them. Therefore, the Court would have granted summary judgment

on this ground as well.

IV. CONCLUSION

For the reasons stated herein, the Defendant's Motion for Summary

Judgment will be granted.

ORDER

IT IS, THEREFORE, ORDERED that the Defendants’ Motion for

Summary Judgment [Doc. 66] is GRANTED and this action is hereby

DISMISSED with prejudice.

IT IS SO ORDERED.

Signed: April 2, 2021

Martifi Reidinger ee

Chief United States District Judge AS

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