Jasmaine f/k/a Duane L. Fox v. Kinlisky

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF NORTH CAROLINA

STATESVILLE DIVISION

CIVIL CASE NO. 5:18-cv-00078-MR

JENNIFER ANN JASMAINE )

f/k/a Duane Leroy Fox, )

)

Plaintiff, )

) MEMORANDUM OF

vs. ) DECISION AND ORDER

)

CHRISTINE FOX, et al., )

)

Defendants. )

___________________________ )

THIS MATTER comes before the Court on a Motion for Summary

Judgment by Defendants Fox, Crump, Harris, and O’Brien. [Doc. 45].

I. PROCEDURAL BACKGROUND

On May 7, 2018, Plaintiff Jennifer Ann Jasmaine (“Plaintiff”),

proceeding pro se, filed an unverified Complaint pursuant to 42 U.S.C. §

1983 against 28 named Defendants and eight Doe Defendants. [Doc. 1].

On initial review, the Court dismissed all but Defendants Fox, Harris, Byrd,

Crump, O’Brien,1 Jane Does #1-4, and John Does #1-4, against whom

Plaintiff made allegations related to her physical and mental healthcare while

1 In her Complaint, Plaintiff spelled this Defendant’s last name as “O’Brian,” which is

incorrect. The Court will instruct the Clerk to update the docket with the correct spelling.

she was incarcerated at Alexander Correctional Institution (“Alexander”) in

Taylorsville, North Carolina. [Doc. 13]. The Court found that the claims

against the 23 dismissed Defendants were either wholly unrelated to the

claims of the surviving Defendants and/or did not state claims for relief in the

first place. [Id. at 3-4, 14-15]. Plaintiff sued all Defendants in their individual

and official capacities. [Doc. 1 at 9-26].

Plaintiff alleged that Defendant Christine Fox, identified as a nurse at

Alexander, refused on an unspecified date to issue Plaintiff medical (over the

head) headphones that had been ordered by a doctor at another prison.

Plaintiff further alleged that Defendant Fox lied in response to Plaintiff’s

grievance, claiming that the doctor’s request for the headphones had been

denied. [Id. at 33]. Plaintiff alleged that Defendant Renee Harris, identified

as a nurse at Alexander, refused on August 22, 2017 to issue Plaintiff lace-

up ankle braces even though a Utilization Review (UR) Request2 for the

braces had been approved. [Id. at 38-39].

As to Defendant Terri Byrd, M.D., incorrectly identified as a nurse at

Alexander, and Jane Doe Defendants #1-4, Plaintiff alleged that they

refused, on unspecified dates, to issue Plaintiff medical headphones. [Id. at

2A Utilization Review (UR) Request must be submitted by providers where services

require precertification or prior approval.

49, 53, 58, 62, 66]. Plaintiff alleged that John Doe Defendants #1 and #2,

identified as nurses at Alexander, refused on unspecified dates to address

Plaintiff’s bad back, bad ankles, and poor circulation and ignored Plaintiff’s

complaints about these conditions. [Id. at 70, 74]. In addition to the same

complaints alleged against John Does #1 and #2, Plaintiff alleged that John

Doe #3, identified as a nurse at Alexander, refused to issue Plaintiff medical

headphones. [Id. at 78].

Plaintiff generally alleged that over a period of nine months she

submitted 29 sick call requests and that she never saw a doctor during that

time for any of her sick calls. [See Doc. 1 at 33-34]. Finally, she alleged that

nurses at Alexander, including apparently Defendants Fox, Jane Does #1-4,

and John Does #1-3, told her that the doctor decides whether she will see

you or that Plaintiff “had to be seen for the same complaint 3x before she

could see the doctor again.”3 [See id. at 34].

Plaintiff’s claims against Defendant Rita Crump, identified as the head

of mental health at Alexander; Kevin O’Brien, identified as a male therapist

at Alexander; and John Doe #4, identified as a psychologist at Alexander;

relate to Plaintiff’s mental healthcare. Plaintiff alleged that she is a

3 Plaintiff makes these allegations against Defendant Byrd as well. [Doc. 1 at 49-50]. Byrd,

however, is a doctor and, therefore, could not have advised Plaintiff as alleged.

“transexual [who] believes that she is cruelly trapped within a body

incompatible with her real gender identity.” [Id. at 82]. Plaintiff alleged that

she told Defendants Crump, O’Brien, and John Doe #4 that she was

uncomfortable talking to a male therapist due to past and recent sexual

abuse and asked that she be assigned a female therapist. Plaintiff further

alleged that these Defendants all denied this request and that Plaintiff was

forced to either be treated by a male therapist or forego therapy entirely. [Id.

at 81-82, 94-95, 150-151].

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

deliberate indifference to her serious medical needs under the Eighth

Amendment against Defendants Fox, Harris, Byrd, Crump, O’Brien, Jane

Does #1-4, and John Does #1-4. [Doc. 13]. The Court ordered the Clerk to

initiate the procedure for waiver of service in Local Civil Rule 4.3 for

Defendants. [Id. at 15]. On May 24, 2019, Defendants Crump, Byrd, Fox,

O’Brien, Harris, and “Jane Doe” filed executed Waivers of Service. [Doc.

16]. The “Jane Doe” Defendant who executed a Waiver of Service was

Yutokia T. Lipford. [Id. at 5]. At the same time, the North Carolina

Department of Public Safety (NCDPS) filed a notice under seal identifying

and providing the last known addresses for Jane Does #1, #3, and #4. [Doc.

17]. In this notice, the NCDPS also referenced Jane Doe #2 as the Jane

Doe Defendant who had waived service, namely, Yutokia Lipford. [Id.]. Jane

Doe #1 was identified as Jennifer E. Tilley, Jane Doe #3 was identified as

Hilda Accord, and Jane Doe #4 was identified as Leslie Norman. [Id.]. By

inadvertence, none of these Defendants were substituted for the Jane Doe

Defendants in the docket in this matter and, despite having their last known

addresses, Defendants Tilley, Accord, and Norman were never served with

summons and complaint. The NCDPS never provided information for

service on the John Doe Defendants and Plaintiff never pursued service on

them. Defendant Lipford, still identified as Jane Doe, answered the

Complaint on August 22, 2019 with Defendants, Crump, Fox, Harris, and

O’Brien. [Doc. 33]. Defendant Byrd moved to dismiss the Complaint for

Plaintiff’s failure to state a claim for relief against her. [Doc. 30]. After

entering an Order pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir.

1975), allowing Plaintiff time to respond, [Doc. 35], the Court granted

Defendant Byrd’s unopposed motion to dismiss, [Doc. 36]. The Court found

that Plaintiff failed to allege that her medical needs, including any needs

implicated in her 29 sick calls, were “serious,” as required to state an Eighth

Amendment deliberate indifference claim. The Court also noted that Plaintiff

necessarily failed to allege that Defendant Byrd was deliberately indifferent

to a serious medical need. [Id. at 5].

On January 11, 2021, Defendants Crump, Fox, Harris, and O’Brien

moved for summary judgment. [Doc. 45]. Defendant Jane Doe #2 did not

join in the motion. In support of their summary judgment motion, Defendants

Crump, Fox, Harris, and O’Brien submitted a memorandum; the Affidavits of

Defendants Harris, O’Brien, and Crump; and select medical records of

Plaintiff. [Doc. 46, Doc. 47-1 through 47-4]. Thereafter, the Court entered a

Roseboro Order, 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. 48]. Plaintiff was specifically advised that

she “may not rely upon mere allegations or denials of allegations in [her]

pleadings to defeat a summary judgment motion.” [Id. at 2]. Rather, she

must support her 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.

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:

Defendant Crump is a Psychological Services Coordinator for the

NCDPS and has been employed by the NCDPS since 2000. [Doc. 47-4 at

¶ 2: Crump Aff.]. In her role, Crump supervises other clinicians in providing

behavioral health services to offenders. Crump also provides these services

to offenders herself. [Id. at ¶ 3]. Defendant O’Brien is a Psychologist at

Alexander and has been employed by the NCDPS since 2004. [Doc. 47-3

at ¶ 2: O’Brien Aff.]. Defendant O’Brien provides behavioral health services

to offenders. [Id. at ¶ 3].

On January 25, 2017, Plaintiff arrived at Alexander. [Id. at ¶ 8]. At the

time, she was assigned to Defendant O’Brien for psychological care to

maintain an even caseload distribution among the mental health clinicians at

Alexander. [Id.; Doc. 47-4 at ¶ 6]. At Plaintiff’s first appointment with

Defendant O’Brien on February 2, 2017, she stated that she did not want to

speak with O’Brien because he is male and, due to a history of abuse by

males, she could not work with a male therapist. [Doc. 47-3 at ¶ 9].

Defendant O’Brien discussed the matter with Defendant Crump and the two

considered moving Plaintiff to a female therapist. The matter was also

discussed with the Psychological Program Manager. [Id. at ¶ 10; Doc. 47-4

at ¶ 7]. It was decided, from a therapeutic standpoint, that it would be best

for Plaintiff to address her concerns with males in the safety of a therapeutic

environment with a male therapist. [Id.]. Plaintiff was told about this decision

and she decided to continue working with Defendant O’Brien. [Doc. 47-3 at

¶ 11]. Despite her ongoing complaints about seeing a male therapist, she

frequently requested contact with Defendant O’Brien. Between February 2,

2017 and May 31, 2017, Plaintiff was seen by Defendant O’Brien ten (10)

times. [Id.].

On April 28, 2017, Plaintiff tried to dictate what type of medication she

would be prescribed by her psychiatrist. [Id. at ¶ 9]. When Plaintiff’s request

was denied, because it was not clinically appropriate, Plaintiff stated that she

no longer needed psychiatric services. She was, therefore, discontinued

from tele-psychiatry. [Id.]. On May 31, 2017, Plaintiff voluntarily removed

herself from receiving mental health care at Alexander.4 [Id. at ¶ 11].

On July 6, 2017, Defendant Crump met with Plaintiff at Plaintiff’s

request for a mental health referral. [Doc. 47-4 at ¶ 10]. At this session,

Plaintiff stated that she regretted removing herself from mental health care

at Alexander. [Id.]. Crump and Plaintiff also reviewed Plaintiff’s previous

request to work with a male therapist. [Id.]. Plaintiff admitted that avoiding

male therapists was fostering her mistrust of males in general. Plaintiff

agreed that addressing her past abuse issues with a male therapist could

help her learn to build trust with males, which would help her outside the

therapeutic environment. [Id.]. Plaintiff was then placed with a male

therapist. [Id.]. On May 15, 2018, Plaintiff was transferred to Lanesboro

Correctional Institution and assigned to a male therapist there. She was able

4 Thus, it appears that the care Plaintiff was receiving from a psychiatrist through

telemedicine was discontinued at Plaintiff’s request in April 2017 and then, in May 2017,

the care Plaintiff was receiving from Defendant O’Brien, as Plaintiff’s primary therapist,

was voluntarily discontinued by Plaintiff. [See Doc. 47-3 at ¶¶ 11-12].

to develop a positive therapeutic rapport with the male therapist at Lanesboro

and even stated that she was surprised that the therapy was going so well.

[Id. at ¶ 11].

Defendant Harris is a Registered Nurse who cares for offenders at

Alexander. She has been employed by the NCDPS since 2007. [Doc. 47-1

at ¶¶ 2-3: Harris Aff.]. On August 22, 2017, during a medical visit with

Defendant Harris, Plaintiff asked Harris to investigate the status of Plaintiff’s

lace-up ankle braces. [Doc. 47-1 at ¶ 6; Doc. 47-2 at 14]. Thereafter,

Defendant Harris sought clarification of Plaintiff’s medical duty status for

ankle braces, medical headphones, and other orders. [Id. at ¶ 6; Doc. 47-2

at 11-12, 14]. The records showed that various orders and equipment,

including the ankle braces, had been cancelled at Plaintiff’s previous

institution. [Id. at ¶ 7]. The ankle braces had been discontinued in July 2016

for “offender misuse” after nursing staff witnessed Plaintiff playing basketball

without difficulty while not wearing her braces. [Id. at ¶ 8; Doc. 47-2 at 1; see

Doc. 47-2 at 6 (“Nursing reports: “today at approximately 0750 witnessed

inmate playing a game of one[-on]-one basketball with another inmate

without supportive brace on bilateral extremities as ordered.)]. The records

showed that Plaintiff was not allowed medical headphones because they are

only allowed for hearing impaired inmates who use hearing aids. [Doc. 47-

2 at 11].

Defendant Harris told Plaintiff that the order for ankle braces had been

discontinued after nursing staff at Plaintiff’s previous institution reported

observing her playing basketball without them. [Doc. 47-1 at ¶ 9]. Plaintiff

then repeatedly requested that she be issued ankle braces. As a nurse,

Defendant Harris was not responsible for decisions regarding medical

interventions, including ankle braces. [Id. at ¶ 7]. Defendant Harris referred

Plaintiff’s request to a Provider and a UR Request was made. [Id.]. The UR

Request was deferred. Plaintiff did not qualify for the braces because she

was active, playing basketball without impairment, and able to do all activities

of daily living (ADLs). [Id. at ¶ 10; Doc. 47-2 at 17]. On October 3, 2017, at

an office visit for Plaintiff’s asthma, Defendant Harris told Plaintiff that that

UR Request had not been approved. [Id. at ¶ 11; Doc. 47-2 at 16]. The

same day, Defendant Harris explained to Plaintiff that, while Plaintiff does

have a diagnosis of degenerative disc disease, it is important for Plaintiff to

remain active and that climbing stairs was beneficial to her circulation,

posture, heart, and muscle strength.5 [Id. at ¶ 12].

5 It appears that Plaintiff had unsuccessfully sought a limitation that would have relieved

her from having to climb stairs in prison.

III. DISCUSSION

Defendants Crump, Fox, Harris, and O’Brien argue that they are

entitled to summary judgment because the record shows that they were not

deliberately indifferent to Plaintiff’s serious medical needs and because they

have sovereign immunity and qualified immunity against Plaintiff’s claims.

A. 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. “Courts treat an inmate’s

mental health claims just as seriously as any physical health claims.”

DePaola v. Clarke, 884 F.3d 481, 486 (4th Cir. 2018). 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.

1. Defendants Crump and O’Brien

The forecast of evidence does not show that Defendants Crump and

O’Brien disregarded any of Plaintiff’s serious physical or mental health

needs. See Young, 238 F.3d at 575-76. Defendants Crump and O’Brien

considered and reviewed Plaintiff’s mental health needs and made an

intentional decision regarding Plaintiff’s mental health care that they believed

was in her best interest. Plaintiff’s disagreement with their decision to

maintain her treatment with a male therapist is not deliberate indifference to

any serious medical need of Plaintiff. 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. And there is no forecast of evidence supporting any such

exceptional circumstances here. As such, there remains no genuine issue

for trial as to Defendants Crump and O’Brien and the Court will dismiss these

Defendants.

2. Defendants Fox and Harris

The forecast of evidence is similarly insufficient to support claims of

deliberate indifference against Defendants Harris or Fox. Plaintiff alleged

that Defendant Fox denied Plaintiff medical headphones and lied in response

to Plaintiff’s grievance about the headphones, claiming that a UR Request

for the headphones in 2015 was denied. The forecast of evidence, however,

shows that only prisoners who use hearing aids are allowed medical

headphones. There is no forecast of evidence that Plaintiff qualified for

medical headphones or had any other serious medical need related to

medical headphones that was ignored. Moreover, there is no forecast of

evidence that Defendant Fox had any involvement in whether medical

headphones were provided to Plaintiff or that Defendant Fox lied in response

to Plaintiff’s grievance.

Plaintiff has also failed to forecast any evidence of deliberate

indifference by Defendant Harris. Plaintiff alleged that a UR Request for

Plaintiff’s ankle braces had been approved and that Defendant Harris lied,

claiming the braces had not been approved. The forecast of evidence,

including Plaintiff’s own medical record, completely contradicts Plaintiff’s

allegations against Defendant Harris. Defendant Harris did not lie about UR

Request approval. The order for Plaintiff’s ankle braces was discontinued at

a different correctional facility because Plaintiff did not wear them while

playing basketball, as ordered. After Defendant Harris told Plaintiff that the

order had been discontinued, Plaintiff again requested ankle braces and

Defendant Harris referred the matter to a Provider. A UR Request was

made, which was denied because Plaintiff was not eligible for ankle braces.

There is, therefore, no genuine issue for trial on Plaintiff’s claims against

Defendants Fox or Harris. The Court will dismiss these Defendants.

3. Jane Does #1-4

The allegations against Jane Does #1-4, who have been since

identified as Defendants Tilley, Lipford, Accord, and Norman, respectively,

are identical to the allegations against Defendant Byrd. Namely, Plaintiff

alleged that the Jane Doe Defendants were deliberately indifferent for

refusing Plaintiff medical headphones. The Court dismissed Plaintiff’s claim

against Defendant Byrd because Plaintiff failed to state a claim for relief

against her. The Court will, therefore, also dismiss the Jane Doe Defendants

for the same reason. Moreover, the claim against Defendant Fox was based,

in large part, on her alleged denial of medical headphones to Plaintiff. This

claim was dismissed because the forecast of evidence showed no serious

medical need and no deliberate indifference relative to medical headphones.

As such, Plaintiff’s claims against the Jane Doe Defendants would have been

subject to dismissal at summary judgment in any event.

4. John Does #1 through #4

Plaintiff alleged that these Defendants refused to address Plaintiff’s

bad back, bad ankles, and poor circulation. Plaintiff made no effort to identify

these Defendants or to prosecute her claims against them. In any event, the

forecast of evidence shows that these conditions were generally addressed

by Plaintiff’s healthcare providers and that Plaintiff was advised to continue

certain activities to improve her muscle strength and circulation.

The allegations against John Doe #3 include a claim that John Doe #3

refused to issue Plaintiff medical headphones. Accordingly, for the same

reasons that the Plaintiff’s claims against Defendant Fox and Jane Does #1

through #4 fail, Plaintiff’s claim against John Doe #3 also fails.

Finally, the allegations and forecast of evidence against John Doe #4

are identical to those against Defendants Crump and O’Brien. Namely,

Plaintiff alleged that John Doe #4 was a psychologist at Alexander and that

Plaintiff told him that she was uncomfortable working with a male therapist.

Because the forecast of evidence shows that Plaintiff’s concerns on this

issue were addressed in Plaintiff’s best interest by Defendants Crump and

O’Brien, the Court will dismiss Plaintiff’s identical claims against John Doe

#4.6

B. Sovereign Immunity

Plaintiff sues the Defendants for conduct allegedly occurring while the

Defendants were acting in their individual and official capacities. 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” 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

6 Notwithstanding the failure of service, the Court will dismiss the Doe Defendants with

prejudice because the claims against them arose in 2017 and are barred by the statue of

limitations.

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 official capacity

claims and the Court will grant the pending motion for summary judgment on

this ground.

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 forecasted evidence that Defendants

Crump, Fox, Harris, and O’Brien violated a constitutional right, these

Defendants are entitled to qualified immunity on Plaintiff’s individual capacity

claims against them. As such, the Court grants summary judgment on this

ground as well.

IV. CONCLUSION

For the reasons stated herein, the Defendants’ Motion for Summary

Judgment will be granted, and the Doe Defendants will be dismissed.

O R D E R

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

Summary Judgment [Doc. 45] is GRANTED and the Plaintiff’s claims against

Defendants Fox, Crump, Harris, and O’Brien are hereby DISMISSED WITH

PREJUDICE.

IT IS FURTHER ORDERED that the Plaintiff’s claims against Yutokia

T. Lipford (identified in the Complaint as Jane Doe #2), Jane Doe Defendants

#1, 3, and 4, and John Doe Defendants #1-4 are hereby DISMISSED WITH

PREJUDICE.

The Clerk is respectfully instructed to update the docket in this matter

to (1) reflect the correct spelling of Defendant O’Brien’s last name and (2)

substitute Yutokia T. Lipford for Jane Doe #2.

The Clerk is further respectfully directed to close this civil action.

IT IS SO ORDERED.

wail

< Reidinger wey

Chief United States District Judge “AES

23