# Whitener v. The Rutherford County Detention Center

> District Court, W.D. North Carolina · September 21, 2021

URL: https://www.frixlaw.com/law-library/cases/10257512

## Case

- **Court:** District Court, W.D. North Carolina
- **Decided:** September 21, 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/10257512

## 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
- finding that, if prison officials had contradicted medical professionals’ instructions, “they might have incurred liability for interfering with [the inmate’s] treatment.”

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:21-cv-00048-MR

RONNIE DALE WHITENER, )
)
Plaintiff, )
)
vs. )
)
RUTHERFORD COUNTY DETENTION )
CENTER, et al., ) ORDER
)
Defendants. )
_______________________________ )

THIS MATTER is before the Court on initial review of the pro se
Complaint. [Doc. 1]. Several Motions are also pending. [Docs. 4, 7, 8, 14,
15]. The Plaintiff is proceeding in forma pauperis. [Doc. 13].
The pro se Plaintiff filed this action pursuant to 42 U.S.C. § 1983, the
Federal Tort Claims Act (“FTCA”), and North Carolina law,1 addressing
incidents that allegedly occurred while he was a pretrial detainee at the
Rutherford County Detention Center.2 [Doc. 1]. The Plaintiff names as
Defendants: the Rutherford County Detention Center (“RCDC”); Chris

1 The Court also liberally construes the Complaint as raising a claim pursuant to the Health
Insurance Portability and Accountability Act of 1996 (“HIPAA”), Pub. L. No. 104-171, 110
Stat. 1936 (1996).

2 The Plaintiff is presently incarcerated in the Tennessee Department of Corrections.
Francis, the Rutherford County Sheriff (“Sheriff Francis”); John Doe 1, an
RCDC administrator; John Doe 2, an RCDC captain; John Doe 3, an RCDC

sergeant; John Does 4 and 5, RCDC correctional officers; RCDC’s Health
Care Provider; Jane Doe 1, the RCDC medical administrator; Jane Doe 2,
the RCDC medical director; Jane Doe 3, an RCDC physician; and Jane Doe

4, an RCDC nurse practitioner. [Id.]. In his Complaint, the Plaintiff seeks a
declaratory judgment, compensatory and punitive damages, a jury trial, the
costs of this action, and any other relief the court deems just, proper, and
equitable. [Id. at 20-21].

II. STANDARD OF REVIEW
Because Plaintiff is proceeding in forma pauperis, the Court must
review the Complaint to determine whether it is subject to dismissal on the

grounds that it is “(i) frivolous or malicious; (ii) fails to state 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 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
A. Federal Tort Claims Act
The Plaintiff appears to assert claims under the Federal Tort Claims

Act (“FTCA”). [See Doc. 1 at 2]. The FTCA affords a limited, conditional
waiver of sovereign immunity by the United States government for the torts
of Federal government employees committed within the scope of their

employment. See 28 U.S.C. §§ 2671 et seq.; see also Muth v. United States,
1 F.3d 246, 249 (4th Cir. 1993).
The incidents in this lawsuit allegedly occurred at RCDC and all of the
Defendants appear to be county employees. No federal actors are involved

whatsoever, and accordingly, the FTCA does not apply. The Plaintiff’s
claims pursuant to the FTCA are therefore dismissed with prejudice as
frivolous and for failure to state a claim upon which relief can be granted.
B. HIPAA
The Plaintiff alludes to his right to have medical information kept

private, and alleges that “Defendants in this action shared Plaintiff’s medical
records” in violation of his constitutional rights. [Doc. 1 at 17].
To the extent that the Plaintiff attempts to assert a claim under HIPAA,

it is dismissed because HIPAA does not create a private right of action.
Payne v. Taslimi, 998 F.3d 648 (4th Cir. 2020). Accordingly, to the extent
that the Plaintiff attempts to assert a HIPAA claim, such claim is dismissed
with prejudice.

C. Section 1983
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).
1. RCDC
The Plaintiff names as a Defendant the RCDC, the jail facility at which

he was held in pretrial detention. [Doc. 1 at 2].
In order to successfully allege a violation of 42 U.S.C. § 1983, the
plaintiff must allege that a “person” acting under the color of state law violated

the plaintiff's constitutional rights. Rule 17(b) of the Federal Rules of Civil
Procedure states that a party’s capacity to be sued is determined by the law
of the state in which the District Court is held. Under North Carolina law,

unless a statute provides to the contrary, only persons in being may be sued.
McPherson v. First & Citizens Nat. Bank of Elizabeth City, 240 N.C. 1, 18,
81 S.E.2d 386 (1954). Jails and detention centers, therefore, may not be

sued. Brooks v. Pembroke City Jail, 722 F.Supp. 1294, 1301 (E.D.N.C.1989)
(“Claims under § 1983 are directed at “persons” and the jail is not a person
amenable to suit.”). The RCDC is not a person under § 1983, and
accordingly, the § 1983 claims against it are dismissed with prejudice.

2. RCDC’s “Healthcare Provider”
The Plaintiff names as a Defendant the Healthcare Provider which
allegedly employed Jane Does 1 through 4. [See Doc. 1 at 4].

In Monell v. New York City Department of Social Services, 436 U.S.
658 (1978), the Supreme Court held that a municipal corporation cannot be
saddled with section 1983 liability via respondeat superior alone. This
holding as equally applicable to the liability of private corporations. Powell

v. Shopco Laurel Co., 678 F.2d 504, 506 (4th Cir. 1982).
The Plaintiff alleges that Jane Does 1 through 4 acted improperly in
their care of Plaintiff. [Doc. 1 at 5-7, 9]. However, the Plaintiff alleges no

specific conduct by the “Healthcare Provider” or any custom or policy of the
“Healthcare Provider” that resulted in a deprivation of his constitutional
rights. The Plaintiff essentially seeks to hold the “Healthcare Provider” liable

because it alleged employed the individuals who made decisions with which
he disagrees. Such an allegation is insufficient to state a claim against a
private company under § 1983. See Powell, 678 F.2d at 505–06 (dismissing

a claim against the private employer of a security guard under § 1983). The
claims against RCDC’s “Healthcare Provider” are therefore dismissed
without prejudice.
3. Official Capacity Claims

The Plaintiff asserts claims against Sheriff Francis and the other RCDC
employees in their official capacities. [Doc. 1 at 2-5].
The claims against the deputy Defendants in their official capacities

are duplicative of the claims against Sheriff Francis. See Love-Lane v.
Martin, 355 F.3d 766, 783 (4th Cir. 2004); Carpenter v. Trammel, No. 1:18-
CV-00016-MR-WCM, 2019 WL 2088424, at *5 (W.D.N.C. May 13, 2019).
Accordingly, the official capacity claims against the deputy Defendants are

dismissed.
As for the official capacity claim against Sheriff Francis, 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). To succeed on such a claim, a 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).
Here, the Plaintiff has not adequately alleged that a sheriff’s office
policy or custom played a part in the alleged violations of federal law.
Therefore, the Plaintiff’s claim against Sheriff Francis in his official capacity

will be dismissed without prejudice.
4. Individual Capacity Claims
i. Deliberate Indifference to a Serious Medical Need

The Plaintiff appears to allege that Jane Doe nurse practitioner and
Jane Doe physician were deliberately indifferent to a serious medical need
by misdiagnosing the Plaintiff and prescribing treatment that was
inconsistent with his medical records, and that Sergeant John Doe and the

two John Doe correctional officers were deliberately indifferent to a serious
medical need by refusing to take Plaintiff to the Emergency Room for a
second opinion when the Plaintiff expressed disagreement with medical

staff’s alleged misdiagnosis. [Doc. 1 at 6-7].
The Eighth Amendment3 encompasses a right to medical care for
serious medical needs. 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
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).
To constitute deliberate indifference to a serious medical need, “the
treatment [a prisoner receives] 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). However, mere
negligence or malpractice does not violate the Eighth Amendment. Miltier,

3 Because the Plaintiff was a pre-trial detainee at the relevant times, 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).
896 F.2d at 852. Further, “mere ‘[d]isagreements between an inmate and a
physician over the inmate’s proper medical care’ are not actionable absent

exceptional circumstances.” Scinto v. Stansberry, 841 F.3d 219, 225 (4th Cir.
2016) (quoting Wright v. Collins, 766 F.2d 841, 840 (4th Cir. 1985)).
To establish a deliberate indifference claim against non-medical

personnel, a prisoner must show that the non-medical personnel failed to
promptly provide needed medical treatment, deliberately interfered with
prison doctors’ treatment, or tacitly authorized or were indifferent to prison
physicians’ misconduct. Miltier, 896 F.2d at 854. Because most prison

officials are not trained medical personnel, they are entitled to rely on the
opinions, judgment, and expertise of medical personnel concerning the
course of treatment that the medical personnel deem necessary and
appropriate for the prisoner. Id.; see Shakka v. Smith, 71 F.3d 162, 167 (4th

Cir. 1995) (finding that, if prison officials had contradicted medical
professionals’ instructions, “they might have incurred liability for interfering
with [the inmate’s] treatment.”); Pickens v. Lewis, 2018 WL 2187051

(W.D.N.C. May 11, 2018) (holding that prison officials without medical
training are “not responsible for determining the course of treatment or for
overruling the opinions of those professionals”) (quotations and citations

omitted).
Here, the Plaintiff has failed to state a deliberate indifference claim
against the Jane Doe nurse practitioner and Jane Doe physician because

the Plaintiff has alleged only his disagreement with their diagnosis and
prescribed treatment. Such allegations do not rise to the level of a
constitutional violation. Further, the Plaintiff has failed to state a deliberate

indifference claim against the John Doe sergeant and John Doe correctional
officers because these Defendants are non-medical correctional personnel
who were entitled to rely on the medical staff’s expertise, diagnosis, and
treatment plan. Therefore, the Plaintiff’s claims of deliberate indifference to

a serious medical need will be dismissed without prejudice.
ii. Unwanted Medical Treatment
The Plaintiff alleges that he told Sergeant John Doe and the two John

Doe correctional officers that he was refusing the medical care prescribed
by the Jane Doe nurse practitioner, i.e. Tylenol, a liquid diet, and 10 days of
segregation for observation, but that Sergeant John Doe and the John Doe
correctional officers would not accept the refusal and forced him to comply.4

[Doc. 1 at 6].

4 The Plaintiff does not appear to allege that he expressed his refusal to the Jane Doe
nurse practitioner or Jane Doe physician.
“[A] competent person has a constitutionally protected liberty interest
in refusing unwanted medical treatment.” Cruzan v. Dir., Mo. Dep’t of Health,

497 U.S. 261, 278 (1990). This liberty interest survives conviction and
incarceration. King v. Rubenstein, 825 F.3d 206, 222 (4th Cir. 2016); see
Washington v. Harper, 494 U.S. 210, 221–22 (1990) (recognizing an

individual’s “significant liberty interest in avoiding the unwanted
administration” of a specific form of medical treatment); Hogan v. Carter, 85
F.3d 1113, 1116 (4th Cir. 1996) (en banc) (citing Harper, 494 U.S. 221–22).
In this context, prison officials may override this right when treatment is

“reasonably related to legitimate penological interests.” Harper, 494 U.S. at
223 (citing Turner, 482 U.S. at 89). “This is true even when the constitutional
right claimed to have been infringed is fundamental, and the State under

other circumstances would have been required to satisfy a more rigorous
standard of review.” Id. (citation omitted).
Taking the allegations as true for the purposes of initial review, and
construing all inferences in Plaintiff’s favor, the Court concludes that the

Plaintiff has stated a due process claim sufficient to pass initial review
against Sergeant John Doe and the two John Doe correctional officers for
forcing him to undergo unwanted medical treatment. Accordingly, this claim

will be allowed to proceed at this time.
iii. Excessive Force
The Plaintiff appears to allege that Sergeant John Doe used excessive

force while escorting the Plaintiff to segregation, and that the two John Doe
correctional officers failed to intervene in these uses of excessive force.
[Doc. 1 at 7-9].

The Fourteenth Amendment “protects a pretrial detainee from the use
of excessive force that amounts to punishment.” Graham v. Connor, 490
U.S. 386, 395 n.10 (1989). To state an excessive force claim, a pretrial
detainee must show only that the force “purposely or knowingly used against

him was objectively unreasonable.” Kingsley v. Hendrickson, 576 U.S. 389
(2015). The standard for assessing a pretrial detainee’s excessive force
claim is “solely and objective one.” Id. In determining whether the force was

objectively unreasonable, a court considers the evidence “from the
perspective of a reasonable officer on the scene, including what the officer
knew at the time, not with the 20/20 vision of hindsight.” Id. (citing Graham,
490 U.S. at 396). Considerations that bear on the reasonableness or

unreasonableness of the force include: the relationship between the need for
the use of force and the amount of force used; the extent of the plaintiff’s
injury; any effort made by the officer to temper or limit the amount of force;
the severity of the security problem at issue; the threat reasonably perceived
by the officer; and whether the plaintiff was actively resisting. Id.

Taking the allegations as true for the purposes of initial review, and
construing all inferences in the Plaintiff’s favor, the Court concludes that the
Plaintiff has stated an excessive force claim against Sergeant John Doe, and

a failure to intervene claim against the two John Doe correctional officers.
These claims therefore survive initial review.
iv. Retaliation
The Plaintiff appears to allege that Sergeant John Doe and the John

Doe correctional officers used excessive force against him in retaliation for
Plaintiff expressing his disagreement with medical staff’s diagnosis and
treatment plan. [Doc. 1 at 7-9].

The First Amendment right to free speech “includes not only the
affirmative right to speak, but also the right to be free from retaliation by a
public official for the exercise of that right.” Suarez Corp. v. McGraw, 202
F.3d 676, 685 (4th Cir. 2000). Prison officials may not retaliate against an

inmate for exercising a constitutional right. See Hudspeth v. Figgins, 584
F.2d 1345, 1347 (4th Cir.1978). In order to state a colorable retaliation claim
under § 1983, a plaintiff must allege: “(1) []he engaged in protected First

Amendment activity, (2) the defendant[] took some action that adversely
affected [his] First Amendment rights, and (3) there was a causal relationship
between [his] protected activity and the defendant[’s] conduct.” Martin v.

Duffy, 858 F.3d 239, 249 (4th Cir. 2017) (quoting Constantine v. Rectors &
Visitors of George Mason Univ., 411 F.3d 474, 499 (4th Cir. 2005)). In the
prison context, retaliation claims are treated with skepticism because “[e]very

act of discipline by prison officials is by definition ‘retaliatory’ in the sense
that it responds directly to prisoner misconduct.” Adams v. Rice, 40 F.3d 72,
74 (4th Cir. 1994).
Taking the allegations as true for the purposes of initial review, and

construing all inferences in Plaintiff’s favor, the Court concludes that the
Plaintiff has stated a retaliation claim against Sergeant John Doe and the two
John Doe correctional officers that is sufficient to survive initial review.

v. Conditions of Confinement
The Plaintiff alleges that: he was placed in segregation for nearly two
weeks without due process for medical observation and for refusing medical
and correctional orders, and that he was deprived of “decent conditions.”

[Doc. 1 at 14].
“[A] pretrial detainee has a right under the Due Process Clause to be
free from punishment before his guilt is adjudicated.” Tate v. Parks, 791 F.

App’x 387, 390 (4th Cir. 2019) (citing Bell v. Wolfish, 441 U.S. 520, 535
(1979)). An individual pretrial detainee may raise a substantive due process
challenge to his conditions of confinement “where they are so

disproportionate or arbitrary that they are not related to legitimate
penological objectives and amount to punishment.” Id. (citing Williamson v.
Stirling, 912 F.3d 154, 174-76 (4th Cir. 2018)). “To prevail on such a claim,

a detainee must show that the challenged treatment or conditions were either
(1) imposed with an express intent to punish, or (2) not reasonably related to
a legitimate nonpunitive objective, in which case an intent to punish may be
inferred.” Id. (citing Williamson, 912 F.3d at 178).

The Plaintiff alleges that he was placed in segregation for two weeks
for medical observation by the Jane Doe nurse and Jane Doe physician, and
that the segregation was also punishment for disagreeing with the medical

treatment plan and refusing correctional personnel’s orders. [Doc. 1 at 17-
18]. These allegations are insufficient to state a plausible due process claim,
as a medical segregation order is a legitimate nonpunitive objective that
preceded his disagreement and attempted refusal for which he alleges he

was punished without due process. Further, the Plaintiff’s allegation that his
right to “decent conditions” was violated is too vague and conclusory to state
a § 1983 claim. The Plaintiff’s allegations that the conditions of his

confinement violated due process are therefore dismissed.
5. Supplemental Jurisdiction
The Plaintiff raises a number of claims under North Carolina law.

Federal district courts may entertain claims not otherwise within their
adjudicatory authority when those claims “are so related to claims ... within
[federal-court competence] that they form part of the same case or

controversy.” 28 U.S.C. § 1367(a). To exercise supplemental jurisdiction, a
court must find that “[t]he state and federal claims ... derive from a common
nucleus of operative fact” where a plaintiff “would ordinarily be expected to
try them all in one judicial proceeding.” United Mine Workers of Am. v. Gibbs,

383 U.S. 715, 725 (1966). When a district court dismisses all claims
independently qualifying for the exercise of federal jurisdiction, it “ordinarily
dismiss[es] all related state claims.” Artis v. Dist. of Columbia, 138 S.Ct. 594,

595 (2018); see § 1367(c)(3). A district court may also dismiss the related
state claims if there is a good reason to decline jurisdiction. See §
1367(c)(1), (2), and (4).
i. Assault and Battery

The Plaintiff appears to assert that Sergeant John Doe and the two
John Doe correctional officers committed an assault and battery by making
him fear that they were about to harm him, and then by using excessive force

against him. [Doc. 1 at 12].
North Carolina assault is an offer to show violence to another without
striking him, and battery is the carrying of the threat into effect by the infliction

of a blow. See generally Dickens v. Puryear, 302 N.C. 437, 445, 276 S.E.2d
325, 330 (1981). While a civil action for assault is available under North
Carolina law against one who uses force for the accomplishment of a

legitimate purpose such as justifiable arrest, the use of such force under the
given circumstances must be excessive for the claimant to prevail. Myrick v.
Cooley, 91 N.C.App. 209, 215, 371 S.E.2d 492, 496 (1988). “The question
of ‘[w]hether an officer has used excessive force is judged by a standard of

objective reasonableness.’” Jordan v. Civil Service Bd., 153 N.C.App. 691,
698, 570 S.E.2d 912, 918 (2002) (quoting Clem v. Corbeau, 284 F.3d 543,
550 (4th Cir. 2002)).

The Plaintiff has plausibly stated assault and battery claims under
North Carolina law, and these claims involve the same incidents as the
excessive force and failure to intervene claims that have passed initial
review. The Court will, accordingly, exercise supplemental jurisdiction over

Plaintiff’s assault and battery claims at this time.
ii. Medical Negligence
The Plaintiff appears to assert a medical malpractice claim against the

Jane Doe nurse practitioner and Jane Doe physician. [Doc. 1 at 12].
Under North Carolina law, the elements of medical negligence are: “(1)
the standard of care, (2) breach of the standard of care, (3) proximate

causation, and (4) damages.” Turner v. Duke Univ., 325 N.C. 152, 162, 381
S.E.2d 706 (1989).
Assuming arguendo that the Plaintiff has plausibly alleged a medical

negligence claim under North Carolina law, the Court declines to exercise
supplemental jurisdiction over it at this time. The medical negligence claim
against the Jane Doe nurse practitioner and Jane Doe physician is not
adequately related to the § 1983 claims that have passed initial review

against the John Doe sergeant and two John Doe correctional officers.
Further, such claim would require extensive expert testimony of an entirely
different nature than that needed to adjudicate constitutional issues. It is

likely, in this case, that the medical malpractice claim would substantially
predominate over the claims over which the Court has original jurisdiction.
See, e.g., De La Garza-Montemayor v. Hassoun, No. CIV-18-1120-HE, 2019
WL 923744, at *4 (W.D. Okla. Jan. 7, 2019), report and recommendation

adopted, No. CIV-18-1120-HE, 2019 WL 921459 (W.D. Okla. Feb. 25, 2019)
(declining supplemental jurisdiction over prisoner’s state-law medical
malpractice claims that involved a different set of defendants, circumstances,

and facts from the § 1983 excessive force claim and would substantially
predominate the case). Accordingly, the Plaintiff’s medical negligence
claims are dismissed without prejudice to refiling such claims in a proper

state forum.
iii. Negligence
The Plaintiff alleges that Defendants Sergeant John Doe and the two

John Doe correctional officers failed to use reasonable care to protect him
from physical assault and from the Jane Doe nurse practitioner and Jane
Doe physician’s medical malpractice. [Doc. 1 at 11-12].
North Carolina law requires that “in order to prevail in a negligence

action, [a plaintiff] must offer evidence of the essential elements of
negligence: duty, breach of duty, proximate cause, and damages.” Blackwell
v. Hatley, 202 N.C.App. 208, 212, 688 S.E.2d 742, 746 (2010); Camalier v.

Jeffries, 340 N.C. 699, 460 S.E.2d 133, 136 (1995). “Actionable negligence
is the failure to exercise the degree of care which a reasonable and prudent
person would exercise under similar conditions. A defendant is liable for his
negligence if the negligence is the proximate cause of injury to a person to

whom the defendant is under a duty to use reasonable care.” Hart v. Ivey,
332 N.C. 299, 420 S.E.2d 174 (1992) (internal citations omitted).
The Plaintiff has minimally stated a negligence claim against Sergeant

John Doe and the two John Doe correctional officers with regard to the
excessive force incidents. However, the negligence claim based on Jane
Doe nurse practitioner and Jane Doe physician’s medical care will be

dismissed because no claim of deliberate indifference to a serious medical
need has passed initial review. The Court will, accordingly, exercise
supplemental jurisdiction over the Plaintiff’s negligence claim based on the

alleged use of excessive force at this time.
iv. Intentional Infliction of Emotional Distress
The Plaintiff appears to allege that Sergeant John Doe and the two
John Doe correctional officers made him “upset” and caused him pain and

emotional distress by engaging in the purposefully outrageous acts, and that
he is “currently on a medication … for emotional stress.” [Doc. 1 at 12].
The elements of intentional infliction of emotional distress are: “(1)

extreme and outrageous conduct, (2) which is intended to cause and does
cause (3) severe emotional distress.” Dickens v. Puryear, 302 N.C. 437,
452, 276 S.E.2d 325, 335 (1981) (citations and quotation marks omitted).
The severe emotional distress required for intentional infliction of emotional

distress is “any emotional or mental disorder, such as for example, neurosis,
psychosis, chronic depression, phobia, or any other type of severe or
disabling emotional or mental condition which may be generally recognized

and diagnosed by professionals trained to do so.” Piro v. McKeever, 245
N.C. App. 412, 416, 782 S.E.2d 367, 371 (2016), aff’d 369 N.C. 291, 794
S.E.2d 501 (citations omitted). Conduct is “extreme and outrageous” when

it “exceeds all bounds usually tolerated by a decent society.” Shreve v. Duke
Power Co., 85 N.C. App. 253, 257, 354 S.E.2d 357, 359 (1987) (citation and
quotations omitted).

The Plaintiff’s allegations that he was upset and currently takes
medication for emotional stress are too vague and conclusory to state a
plausible claim for the intentional infliction of emotional distress. Assuming
arguendo that the Defendants’ actions were extreme and outrageous, the

Plaintiff has failed to sufficiently allege that their actions were intended to
cause, and did cause, a recognized severe and disabling emotional disorder.
This claim is therefore dismissed without prejudice.

6. Pending Motions
The Plaintiff has filed several pro se motions that will be addressed in
turn.
First, the Plaintiff has filed a Motion to Appoint Counsel [Doc. 4]. There

is no absolute right to the appointment of counsel in civil actions such as this
one. Therefore, a plaintiff must present “exceptional circumstances” in order
to require the Court to seek the assistance of a private attorney for a plaintiff

who is unable to afford counsel. Miller v. Simmons, 814 F.2d 962, 966 (4th
Cir. 1987). The Plaintiff has failed to demonstrate the existence of
exceptional circumstances that would warrant the appointment of counsel

and Plaintiff’s request is therefore denied.
Second, Plaintiff has filed Requests for Admissions [Doc. 7] and
Request for Production of Documents [Doc. 8] that have been docketed as

Motions. These filings appear to be routine discovery requests that are
premature and have been misdirected to the Court. See LCvR 26.1 (“Official
Court-ordered and enforceable discovery does not commence until issuance
of the scheduling order.”); LCvR 26.2 (“The parties shall not file any initial

disclosures, designations of expert witnesses and their reports, discovery
requests or responses thereto, deposition transcripts, or other discovery
material unless: (1) directed to do so by the Court; (2) such materials are

necessary for use in an in-court proceeding; or (3) such materials are filed in
support of, or in opposition to, a motion or petition.”). The Motions seeking
discovery will therefore be denied. Discovery will commence upon the
Court’s entry of a pretrial scheduling order.

Third, the Plaintiff has filed a “Motion to Add Certificate in Support of In
Forma Pauperis” [Doc. 14]. This Motion is moot because Plaintiff has
already been granted leave to proceed in forma pauperis. [See Doc. 13].
Fourth, the Plaintiff has filed a Motion [Doc. 15] in which he asks the
Court to allow the Clerk to update him on the case’s status. He also appears

to request a copy of the “applicable rules and procedures” referred to in the
Court’s Order of Instructions. [Doc. 10]. The Plaintiff’s request for a case
status report from the Clerk is moot, as this Order has addressed the issue.

As to the Plaintiff’s request for “applicable rules and procedures,” this request
is denied insofar as the Plaintiff appears to seek legal advice from the Court.
Moreover, the Court is not responsible for providing pro se litigants with legal
materials. However, the Court will direct the Clerk to provide Plaintiff with a

copy of this case’s docket sheet and the Court’s Local Rules as a courtesy.
IV. CONCLUSION
In sum, the Plaintiff’s claims for the imposition of unwanted medical

treatment in violation of due process, the use of excessive force and failure
to intervene, and retaliation have passed initial review against Sergeant John
Doe and the two John Doe correctional officers. The Court will exercise
supplemental jurisdiction over the Plaintiff’s claims of assault and battery

negligence against these Defendants pursuant to North Carolina law. The
Plaintiff’s claims pursuant to FTCA and HIPAA, and the claims against
RCDC, are dismissed with prejudice; the remaining claims are dismissed

without prejudice.
The Court will allow the Plaintiff thirty (30) days to amend his
Complaint, if he so chooses, to correct the deficiencies identified in this Order

and to otherwise properly state a claim upon which relief can be granted.
Any Amended Complaint will be subject to all timeliness and procedural
requirements and will supersede the Complaint. Piecemeal amendment will

not be permitted. Should Plaintiff fail to timely amend his Complaint in
accordance with this Order, the matter will proceed only against Defendants
Sergeant John Doe and the two John Doe correctional officers as set forth
above. The Plaintiff’s pending Motions are denied.

ORDER
IT IS, THEREFORE, ORDERED that:
1. The claims against Sergeant John Doe and the two John Doe

correctional officers have passed initial review for the imposition of
unwanted medical care in violation of due process, the use of
excessive force and failure to intervene, and retaliation. The Court
will exercise supplemental jurisdiction over the Plaintiff’s claims

against these Defendants for assault and battery and negligence
under North Carolina law.
2. The Plaintiff’s claims pursuant to FTCA and HIPAA, and against

RCDC are DISMISSED WITH PREJUDICE.
3. The remaining claims are DISMISSED WITHOUT PREJUDICE.
4. The Plaintiff shall have thirty (80) days in which to amend the
Complaint in accordance with the terms of this Order. If the Plaintiff
fails to so amend his Complaint, the matter will proceed against
Sergeant John Doe and the John Doe correctional officers as
provided in this Order.
5. Plaintiff's Motion to Appoint Counsel [Doc. 4] is DENIED.
6. Plaintiffs Requests for Admissions [Doc. 7] and Request for
Production of Documents [Doc. 8] are DENIED as premature.
7. Plaintiffs “Motion to Add Certificate in Support of /n Forma
Pauperis” [Doc. 14] is DENIED as moot.
8. Plaintiff's Motion [Doc. 15] is DENIED.
9. The Clerk of Court is respectfully instructed to mail a blank § 1983
prisoner complaint form, this case’s docket sheet, and this Court's
Local Rules to the Plaintiff along with a copy of this Order.
ITIS SO ORDERED... September 21, 2021
Ct ey
Chief United States District Judge AS

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10257512. Public record. Not legal advice.