# Michelson v. Wellpath

> District Court, W.D. North Carolina · August 2, 2021

URL: https://www.frixlaw.com/law-library/cases/10257318

## Case

- **Court:** District Court, W.D. North Carolina
- **Decided:** August 2, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10257318

## How later opinions describe it (automated extraction)

- holding that in an official capacity suit, the entity’s “policy or custom” must have played a part in the violation of federal law

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:20-cv-00155-MR

CHRISTOPHER LEE MICHELSON, )
)
Plaintiff, )
)
vs. )
)
WELLPATH, et al., ) ORDER
)
Defendants. )
_______________________________ )

THIS MATTER is before the Court on the Plaintiff’s Motion to Amend
[Doc. 16] and on initial review of the Second Amended Complaint [Doc. 17].
Also pending is the Plaintiff’s Motion for Preliminary Injunction [Doc. 12]. The
Plaintiff is proceeding in forma pauperis. [Doc. 8].
I. BACKGROUND
The pro se Plaintiff filed this civil rights action pursuant to 42 U.S.C. §
1983 while he was a pretrial detainee at the Buncombe County Detention
Facility (“BCDF”), complaining about his medical care.1 The Complaint was
dismissed on initial review for failure to state a claim and the Plaintiff was
granted the opportunity to amend. [Doc. 9]. The Plaintiff filed an Amended

1 The Plaintiff is no longer incarcerated.
Complaint [Doc. 10], then a Corrected Amended Complaint [Doc. 11]. He
has now filed a Motion to Amend [Doc. 16] and a proposed Second Amended

Complaint [Doc. 17]. The Motion to Amend is granted,2 and the Second
Amended Complaint will be reviewed for frivolity pursuant to 28 U.S.C. §
1915.

The Plaintiff names as Defendants: Quentin Miller, the Sheriff of
Buncombe County; Wellpath, BCDF’s medical services provider; Tracy
Goen, the medical director at BCDF; and Roy Colby Dodd,3 a former
physician assistant at BCDF. The Plaintiff asserts official capacity claims

against Defendants Miller and Wellpath and individual capacity claims
against Defendants Goen and Dodd for deliberate indifference to a serious
medical need in violation of the Eighth and Fourteenth Amendments. [Doc.

17 at 2-3].
II. STANDARD OF REVIEW
Because the Plaintiff is proceeding in forma pauperis, the Court must
review the Second Amended Complaint to determine whether it is subject to

dismissal on the grounds that it is “(i) frivolous or malicious; (ii) fails to state

2 After a first amendment as a matter of right, a plaintiff may amend with permission from
the court which “shall be freely granted when justice so requires.” Fed. R. Civ. P. 15(a)(2).

3 The Plaintiff also refers to this Defendant as “Roy Dodds.” [Doc. 17 at 5].
a claim on which relief may be granted; or (iii) seeks monetary relief against
a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B); see

28 U.S.C. § 1915A (requiring frivolity review for prisoners’ civil actions
seeking redress from governmental entities, officers, or employees).
In its frivolity review, a court must determine whether the Second

Amended Complaint raises an indisputably meritless legal theory or is
founded upon clearly baseless factual contentions, such as fantastic or
delusional scenarios. Neitzke v. Williams, 490 U.S. 319, 327-28 (1989).
Furthermore, a pro se complaint must be construed liberally. Haines v.

Kerner, 404 U.S. 519, 520 (1972). However, the liberal construction
requirement will not permit a district court to ignore a clear failure to allege
facts in his complaint which set forth a claim that is cognizable under federal
law. Weller v. Dep’t of Soc. Servs., 901 F.2d 387 (4th Cir. 1990).

III. DISCUSSION
To state a claim under § 1983, a plaintiff must allege that he was
“deprived of a right secured by the Constitution or laws of the United States,

and that the alleged deprivation was committed under color of state law.”
Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999).
A. Parties
The Plaintiff names an individual in the body of the Second Amended

Complaint who is not named as a Defendant in the caption as required by
Rule 10(a). Any claims against that individual are nullities and they are
dismissed without prejudice. See, e.g., Londeree v. Crutchfield Corp., 68

F.Supp.2d 718 (W.D. Va. Sept. 29, 1999) (granting motion to dismiss for
individuals who were not named as defendants in the complaint but who
were served). Therefore, to the extent that the Plaintiff intended to state
claims against any individual not named as a Defendant, such claims are

dismissed without prejudice.
B. Deliberate Indifference to a Serious Medical Need
The Eighth Amendment encompasses a right to medical care for
serious medical needs.4 See Estelle v. Gamble, 429 U.S. 97, 103-04 (1976).

To state a claim for deliberate indifference to a serious medical need, a
plaintiff must show that he had serious medical needs and that the defendant
acted with deliberate indifference to those needs. Heyer v. United States

4 Because Plaintiff was a pre-trial detainee at the relevant time, his deliberate indifference
claims are properly brought under the Fourteenth Amendment rather than the Eighth
Amendment. See City of Revere v. Mass. Gen. Hosp., 463 U.S. 239 (1983). However,
the Fourth Circuit has long applied the Eighth Amendment deliberate indifference
standard to pretrial detainees’ deliberate indifference claims. See, e.g., Mays v. Sprinkle,
992 F.3d 295 (4th Cir. 2021); Young v. City of Mount Ranier, 238 F.3d 567 (4th Cir. 2001);
Grayson v. Peed, 195 F.3d 692 (4th Cir. 1999); Belcher v. Oliver, 898 F.2d 32 (4th Cir.
1990).
Bureau of Prisons, 849 F.3d 202, 210 (4th Cir. 2017) (citing Iko v. Shreve,
535 F.3d 225, 241 (4th Cir. 2008)). A “serious medical need” is “one that has

been diagnosed by a physician as mandating treatment or one that is so
obvious that even a lay person would easily recognize the necessity for a
doctor’s attention.” Iko, 535 F.3d at 241 (internal quotation marks omitted).

“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 Mount Ranier, 238 F.3d 567, 575–76 (4th Cir.

2001). “To establish that a health care provider’s actions constitute
deliberate indifferent to a serious medical need, the treatment must be so
grossly incompetent, inadequate, or excessive to shock the conscience or to

be intolerable to fundamental fairness.” Miltier v. Beorn, 896 F.2d 848, 851
(4th Cir. 1990), overruled on other grounds by Farmer v. Brennan, 511 U.S.
825 (1994).
Allegations that might be sufficient to support negligence and medical

malpractice claims do not, without more, rise to the level of a cognizable §
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.”). To be found liable under the Eighth
Amendment, a prison official must know of and consciously or intentionally
disregard “an excessive risk to inmate health or safety.” Farmer, 511 U.S.

at 837; Johnson v. Quinones, 145 F.3d 164, 167 (4th Cir. 1998). “[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).
1. Defendant Miller
Plaintiff sues Defendant Miller, the Sheriff of Buncombe County, in his

official capacity only. Suits against sheriffs in their official capacity are in
substance claims against the office of the sheriff itself. Gannt v. Whitaker,
203 F.Supp.2d 503, 508 (M.D.N.C. Feb. 26, 2002), aff’d 57 F. App’x 141 (4th

Cir. 2003). To succeed on such a claim, Plaintiff must allege that a Sheriff’s
Office policy or custom resulted in the violation of federal law. See Monell v.
New York City Dep’t of Social Servs., 436 U.S. 658, 694 (1978) (holding that
in an official capacity suit, the entity’s “policy or custom” must have played a

part in the violation of federal law); Oklahoma City v. Tuttle, 471 U.S. 808,
818-20 (1985) (discussing same). The Plaintiff makes no such claim here.
As such, the Plaintiff has failed to state a claim against Defendant Miller in
his official capacity, and he will be dismissed as a Defendant in this matter.5

2. Wellpath
The Plaintiff also sues BCDF’s medical provider, Wellpath. The Monell
standard applies to private entities that employ individuals acting under color

of state law, such as a private corporation serving as a prison health care
provider. See, e.g., Conner v. Donnely, 42 F.3d 220, 224 (4th Cir. 1994) (“a
private party acts under the color of state law where ‘the private entity has
exercised powers that are ‘traditionally the exclusive prerogative of the

state.’”) (quoting Blum v. Yaresky, 457 U.S. 991, 1004 (1982)). A private
company is liable under § 1983 “only when “an official policy or custom of
the corporation causes the alleged deprivation of federal rights.” Austin v.
Paramount Parks, Inc., 195 F.3d 715, 728 (4th Cir. 1999) (citations omitted).

The Plaintiff has provided no factual allegations suggesting that a
policy or custom of Wellpath caused his purported injuries, and his apparent
reliance on respondeat superior fails to support a § 1983 claim. See, e.g.,

Hill v. Palmer, No. 1:18-CV-293-FDW, 2019 WL 956816, at *6 (W.D.N.C.

5 The Plaintiff’s claim would also fail if he had named Defendant Miller in his individual
capacity. The doctrine of respondeat superior does not apply in actions brought under §
1983. See Monell, 436 U.S. at 694. Rather, to establish liability under § 1983, a plaintiff
must show that the defendant “acted personally” to cause the alleged violation. See
Vinnedge v. Gibbs, 550 F.2d 926, 928 (4th Cir. 1977) (citation omitted). Here, Plaintiff has
not alleged that Defendant Miller acted personally in any way.
Feb. 27, 2019) (dismissing on initial review claims against Southern Health
Partners, on a theory of respondeat superior where plaintiff failed to identify

any policy or custom of the corporation and therefore failed to state any
cognizable § 1983 claim). Wellpath will therefore be dismissed as a
Defendant in this matter on initial review.

3. Defendant Dodd
The Plaintiff alleges that Defendant Dodd was assigned to treat the
Plaintiff’s mental health, but that Dodd failed to check the Plaintiff’s lithium
level for two years. [Doc. 17 at 5]. The Plaintiff alleges that on May 18, 2020,

he presented to the BCDF medical department with a number of symptoms
that indicated a potential lithium toxicity, but that Dodd refused to check his
lithium levels. [Id.]. The Plaintiff alleges that Defendant Dodd instead “had

medical director Tracy Goen write orders for two (2) blood pressure
medicines, despite knowing or having reason “to know that blood pressure
medicines could create a deadly drug reaction with lithium.” [Id.]. The
Plaintiff alleged that he “nearly died” two days later. [Id.].

Assuming the truth of the Plaintiff’s allegations and giving him the
benefit of a very broad and favorable inference, the Court finds that the
Plaintiff’s claim that Defendant Dodd provided him with deliberately
indifferent medical care at BCDF is not clearly frivolous and survives initial
review.

4. Defendant Goen
The Plaintiff alleges that Defendant Goen wrote orders for blood
pressure medications at Defendant Dodd’s request and that Goen paused

the Plaintiff’s lithium rather than sending him to the hospital when a blood
test revealed lithium toxicity. [Doc. 17 at 5].
Taking the Plaintiff’s allegations as true and giving the Plaintiff the
benefit of every reasonable inference, the Plaintiff has failed to state a claim

against Defendant Goen for deliberate indifference to a serious medical
need. Defendant Goen’s writing of blood pressure orders at Defendant
Dodd’s request, while perhaps negligent, does not support that Defendant

Goen knew of and consciously disregarded “an excessive risk to inmate
health or safety.” Farmer, 511 U.S. at 837. The Plaintiff’s mere
disagreement with Defendant Goen’s decision not to send him to the hospital
on May 22 also fails to support a deliberate indifference claim. See Jackson

v. Lightsey, 775 F.3d 170, 178 (4th Cir. 2014) (“‘[d]isagreements between an
inmate and a physician over the inmate’s proper medical care’ … fall short
of showing deliberate indifference.”) (quoting Wright v. Collins, 766 F.2d 841,

849 (4th Cir. 1985)). The Plaintiff has therefore failed to state a claim upon
which relief can be granted against Goen and he will be dismissed as a
Defendant in this matter on initial review.

C. Motion for Preliminary Injunction
In his Motion for Preliminary Injunction [Doc. 12], the Plaintiff asks the
Court to require BCDF to provide him with adequate medical care.

A prisoner’s transfer moots a § 1983 request for declaratory and
injunctive relief when the conditions of which the prisoner claims are unlikely
to recur. See Williams v. Griffin, 952 F.2d 820 (4th Cir. 1991); Taylor v.
Rogers, 781 F.2d 1047, 1048 n.1 (4th Cir. 1986). The Plaintiff is no longer

incarcerated at BCDF and he no longer takes lithium. Therefore, the
conditions of which he complains are unlikely to recur and his Motion for
Preliminary Injunction will be denied as moot.

ORDER
IT IS, THEREFORE, ORDERED that:
1. The Plaintiff’s Motion to Amend [Doc. 16] is GRANTED.
2. The Plaintiff’s claim for deliberate indifference to a serious medical

need against Defendant Dodd has passed initial review.
3. The Plaintiff’s claims against Defendants Miller, Wellpath, and Goen
fail initial review and these Defendants shall be DISMISSED WITH

PREJUDICE as Defendants in this matter.
4. The Plaintiffs Motion for Preliminary Injunction [Doc. 12] is DENIED
AS MOOT.
5. The Clerk of Court is directed to mail a summons forms to the
Plaintiff for the Plaintiff to fill out and return for service of process on
Defendant Dodd. Once the Court receives the completed
summons forms, the Clerk shall then direct the U.S. Marshal to
effectuate service on the Defendant. The Clerk is respectfully
instructed to note on the docket when the form has been mailed to
the Plaintiff.
IT IS SO ORDERED.
Signed: August 2, 2021

Martifi Reidinger ee
Chief United States District Judge AS

11

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10257318. Public record. Not legal advice.