“Under North Carolina law, claims based on ordinary negligence do not overcome statutory immunity pursuant to Section 122C-210.1; a plaintiff must allege gross or intentional negligence.” (internal quotations and alterations omitted)
How later courts described this case
- “Under North Carolina law, claims based on ordinary negligence do not overcome statutory immunity pursuant to Section 122C-210.1; a plaintiff must allege gross or intentional negligence.” (internal quotations and alterations omitted)
- “[W]e further hold that G.S. Sec. 122-24 (1981) affords only a qualified immunity, immunizing physicians only from liability for their ordinary negligent acts but not from liability for their ‘willful, wanton or recklessly’ negligent acts or their intentional acts.”
- “[W]e further hold that G.S. Sec. 122-24 (1981
Written by the judges who cited it.
The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:21-cv-00305-MR-WCM
TAQI EYR HHAMUL HESED EL, )
a/k/a “Bro. T. Hesed-El,” )
)
Plaintiff, )
)
vs. ) O R D E R
)
ROBIN BRYSON, et al., )
)
Defendants. )
)
THIS MATTER is before this Court on the pro se Plaintiff’s Motion to
Declare Statute Unconstitutional as Applied [Doc. 154] and the Plaintiff’s
Motion for Rule 60(b)(1) Relief [Doc. 156], which the Court construes as a
Motion for Reconsideration.
I. BACKGROUND
Taqi Eyr Hhamul Hesed El (“Plaintiff”) has previously filed two civil
actions alleging various claims stemming from what he contends was his
involuntary commitment at Mission Hospital during September and October
of 2016. [See Doc. 138]. Both actions were dismissed. [Id. at 2]. The
Plaintiff commenced the present action—his third based on these facts—by
filing his Complaint on October 18, 2021, which he amended on February
22, 2022. [Docs. 1; 14].
After the Defendants filed Motions to Dismiss [Docs. 33, 60, 63, 74],
the Honorable Magistrate Judge W. Carleton Metcalf issued a Memorandum
and Recommendation on July 12, 2022 [Doc. 80], which this Court accepted
on August 16, 2022, thereby dismissing a number of Plaintiff’s claims. [Doc.
87]. The Plaintiff has since filed two motions seeking to amend his Amended
Complaint to raise an additional claim of ordinary negligence, which the
Magistrate Judge denied on May 4, 2023, and October 26, 2023,
respectively. [See Doc. 138 at 3-4]. In denying the Plaintiff’s second motion
to amend, the Magistrate Judge concluded that the Plaintiff’s prospective
claim for ordinary negligence is barred by N.C. Gen. Stat. § 122C-210.1. [Id.
at 10]. The Plaintiff then filed a pro se Motion for Reconsideration on
November 9, 2023, asking this Court to reverse the Magistrate Judge’s
denial of his second motion to amend. [See Docs. 140-41]. On November
28, 2023, this Court denied that Motion on the grounds that the claim the
Plaintiff wishes to allege is indeed statutorily barred. [Doc. 143].
The Plaintiff now moves for relief under Federal Rule of Civil Procedure
60(b)(1) with the respect to this Court’s November 28 ruling, on the grounds
that the ruling is erroneous. [Doc. 156-1 at 1-2]. The Plaintiff also moves for
this Court to declare that N.C. Gen. Stat. § 122C-210.1, the statute that this
Court has found bars the Plaintiff’s ordinary negligence claim, is
unconstitutional as applied to the Plaintiff.
II. DISCUSSION
Because the Court construes the Plaintiff’s Motion pursuant to Federal
Rule of Procedure 60 as another Motion to Reconsider this Court’s prior
ruling, the Court relies on its previous reasoning. “Under Rule 15 [of the
Federal Rules of Civil Procedure], a ‘motion to amend should be denied only
where it would be prejudicial, there has been bad faith, or the amendment
would be futile.’” Nourison Rug Corp. v. Parvizian, 535 F.3d 295, 298 (4th
Cir. 2008) (emphasis added) (quoting HCMF Corp. v. Allen, 238 F.3d 273,
276-77 (4th Cir. 2001)). The Plaintiff concedes that if N.C. Gen. Stat.
§ 122C-210.1 applies to this matter, that the claim of ordinary negligence he
wishes to allege would be barred by the statute. [See Docs. 113 at 3; 133 at
2]. The statute plainly provides that it “applies to proceedings initiated on or
after” October 1, 2019, and the Plaintiff commenced this action on October
18, 2021. See N.C. Gen. Stat. § 122C-210.1. Therefore, as the Magistrate
Judge ably explained, the statute applies to bar the ordinary negligence claim
the Plaintiff wishes to allege. Accordingly, amendment of the Plaintiff’s
Complaint would be futile, and the Magistrate Judge correctly denied his
motion to amend.
The Court next turns to the Plaintiff’s Motion to declare N.C. Gen. Stat.
§ 122C-210.1 as unconstitutional as applied to him. The Plaintiff specifically
takes issue with the fact that the statute was amended on October 1, 2019,
to expand immunity from liability for hospital workers, barring negligence
claims against them unless they are grossly negligent. N.C. Gen. Stat.
§ 122C-210.1. The Plaintiff argues that because the events giving rise to
this action occurred in 2016, barring his negligence claims under the 2019
version of the statute unconstitutionally applies the statute to him
retroactively, even though he did not file his claim until 2021.
The Plaintiff’s argument, however, misunderstands the history of this
particular statute. As an initial matter, the North Carolina Court of Appeals
has relied on the amended version of N.C. Gen. Stat. § 122C-210.1 in the
years since its adoption, thus indicating its constitutionality under state law.
See Kirkman v. Rowan Reg’l Med. Ctr., Inc., 894 S.E.2d 784, 789 (N.C. Ct.
App. 2023) (“[Prior] decisions [of the court] make plain that a plaintiff in a
malpractice case must allege gross negligence by a covered defendant in
order to overcome the immunity from liability established by the legislature
in N.C. Gen. Stat. § 122C-210.1.”) (emphasis in original). That case, like this
one, involved events that took place before § 122C-210.1 was amended, and
the court found it still applied. Id. at 785.
Even before the 2019 amendment, however, the statute’s
predecessor, N.C. Gen. Stat. § 122-24, was interpreted by the North
Carolina Supreme Court as creating qualified immunity for ordinary negligent
acts. See Pangburn v. Saad, 73 N.C. App. 336, 337-38, 326 S.E.2d 365,
367 (1985) (“[W]e further hold that G.S. Sec. 122-24 (1981) affords only a
qualified immunity, immunizing physicians only from liability for their ordinary
negligent acts but not from liability for their ‘willful, wanton or recklessly’
negligent acts or their intentional acts.”); see also Snyder v. Learning Servs.
Corp., 187 N.C. App. 480, 484, 653 S.E.2d 548, 551 (2007) (“Under North
Carolina law, claims based on ordinary negligence do not overcome
statutory immunity pursuant to Section 122C-210.1; a plaintiff must allege
gross or intentional negligence.” (internal quotations and alterations
omitted)). Therefore, even if this Court were to find that the amended version
of the statute was being unconstitutionally applied to the Plaintiff, it would
make no difference in the viability of the Plaintiff’s claim for ordinary
negligence because the immunity that the Plaintiff contests predates the
2019 amendment to the statute.
For the foregoing reasons, this Court will deny both the Plaintiff's
motion to declare N.C. Gen. Stat. § 122C-210.1 unconstitutional as applied
to him, as well as his motion for reconsideration of this Court’s November 28
Order.
ORDER
IT IS, THEREFORE, ORDERED that Plaintiffs Motion to Declare
Statute Unconstitutional as Applied [Doc. 154] is DENIED.
IT IS FURTHER ORDERED that the Plaintiff's Motion for Rule 60(b)(1)
Relief [Doc. 156], which the Court construes as a Motion for Reconsideration,
is DENIED.
IT IS SO ORDERED.
Signed: April 1, 2024
Se ee
Chief United States District Judge AS