RICHARDSON v. WELLPATH HEALTH CARE

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

RAMONT LOWELL RICHARDSON, JR., )

)

Plaintiff, )

)

v. ) 1:20cv777

)

WELLPATH HEALTH CARE, et al., )

)

Defendants. )

MEMORANDUM OPINION AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

This case comes before the undersigned United States

Magistrate Judge for a recommendation on “Defendant Dr. Rhoades’

Motion to Dismiss Plaintiff’s Complaint” (Docket Entry 19 (the

“Motion”)). For the reasons that follow, the Court should deny the

Motion.

BACKGROUND

Pursuant to 42 U.S.C. § 1983 (“Section 1983”), Ramont Lowell

Richardson, Jr. (the “Plaintiff”), a pretrial detainee acting pro

se, commenced this action against Wellpath Health Care

(“Wellpath”), HIG Capital Equity Firm (“HIG”), Bobby Kimbrough

(“Kimbrough”), Dr. Alan Rhoades (“Rhoades”), Mrs. Williams

(“Williams”), Forsyth County Sheriff’s Department, Gloria

Whisenhunt (“Whisenhunt”), and Dawn Quashie (“Quashie”)

(collectively, the “Defendants”), for acts and/or omissions

amounting to deliberate indifference to Plaintiff’s serious medical

needs during his detention at Forsyth County Law Enforcement

Detention Center (the “Detention Center”). (See Docket Entry 2

(the “Complaint”) at 1-38.)+ Plaintiff attached to the Complaint

copies of (i) several grievances expressing Plaintiff’s medical

concerns (Docket Entry 2-1) and (ii) forms acknowledging sick calls

that Plaintiff submitted (Docket Entry 2-2). By subsequent

correspondence, Plaintiff sought to add another deliberate-

indifference claim based on events that occurred after he filed the

Complaint (see Docket Entry 3 (the “Letter Motion”)), which request

the Court (per the undersigned) granted (see Docket Entry 4 at 6).

According to the Complaint (as amended):

Plaintiff arrived at the Detention Center in April 2020. (See

Docket Entry 2 at 16.) Prior to his detention, he sustained a

gunshot wound to his head, and bullet fragments remained lodged in

his body. (See id.) While at the Detention Center, that injury

caused Plaintiff pain in his head, neck, and back, and he worried

that the fragments could cause him further harm (to include “sudden

death”). (See id.) Plaintiff also experienced lightheadedness,

dizziness, and nervousness, the last of which he attributed to

post-traumatic stress disorder. (See id. at 17.)

During Plaintiff’s pretrial detention, Defendants allegedly

rendered inadequate medical care and “unlawful professional

judgments” (id. at 15). (See id. at 6-32.) As concerns each

1 Citations herein to Docket Entry pages utilize the CM/ECF

footer’s pagination.

Defendant’s alleged involvement in that conduct, Wellpath provides

medical services on behalf of the Detention Center (see id. at 3,

6), and HIG, the parent company of Wellpath, “supervis[es] the

contracts” (id. at 7) for the provision of such services.

Kimbrough, as Forsyth County Sheriff (id. at 5), allegedly knew

about the inadequate medical care Plaintiff received (see id. at

8), failed to follow statewide mandates for face coverings as a

result of the COVID-19 pandemic (see id.), and refused to provide

a face mask or COVID-19 test to Plaintiff (see id. at 21). He also

allowed an inmate to move into Plaintiff’s cell after testing

positive for COVID-19. (See id. at 20-21.) Plaintiff has lodged

similar claims against the Forsyth County Sheriff’s Department,

asserting that it failed to establish and enforce adequate policies

for mitigating the risks of COVID-19 and for providing medical care

to inmates. (See id. at 11, 26-28.) The Letter Motion supplements

Plaintiff’s allegations in that regard, relating Plaintiff’s

exposure to COVID-19 and subsequent quarantine during December

2020. (See Docket Entry 3 at 1.)

The Complaint further alleges that Rhoades, as a “[r]egional

[d]octor” for Wellpath (Docket Entry 2 at 5), (i) delayed rendering

care to Plaintiff (see id. at 9), (11) denied Plaintiff access to

prescriptions ordered by an outside provider (see id.),

(iii) rejected Plaintiff’s requests for treatment by a neurologist,

physical therapy, and neck brace (see id. at 9, 22-23), and

(iv) caused Plaintiff to miss an appointment with an outside

specialist (see id. at 23). Plaintiff’s treatment by Williams and

Quashie allegedly reflects many of the same general deficiencies

(see id. at 10, 13), as well as denial of effective pain medication

(see id.) and failure to order CT scans of Plaintiff’s skull (see

id. at 24, 31). Finally, according to Plaintiff, Whisenhunt did

not use designated COVID-19 funds to advance the health and safety

of inmates, despite possessing the authority to do so. (See id. at

12, 29-30.)

With respect to administrative remedies, Plaintiff has

asserted that (i) his claims arose during confinement at the

Detention Center (id. at 33), (ii) the Detention Center utilizes a

grievance procedure that covers his claims (for “[i]nadequate

medical care” and “COVID-19 exposure”) (id.), (iii) he filed

grievances at the Detention Center regarding those claims (id. at

34), and (iv) “[he] exhausted most of the grievance processes while

others were violently disregarded and rejected” (id.).°

Pursuant to 28 U.S.C. § 1915A(a), the Court (per the

undersigned) screened the Complaint to determine whether, inter

alia, it “fails to state a claim upon which relief may be granted,”

2 Although the use of passive voice muddies the final

allegation, Plaintiff appears to refer to disregard and rejection

by prison staff, rather than his own response to the grievance

procedure. (See id. at 5 (listing, without further development,

first-amendment claim for “[r]light to grievance”); see also Docket

Entry 2-1 at 3-6 (copies of grievances from May 2020 marked as

“non-grievable”).)

28 U.S.C. § 1915A(b)(1). (See Docket Entry 4 (the

“Recommendation”) at 1.) In connection with that review, the

undersigned noted that the allegations against Wellpath and HIG

qualified as “conclusory and general” (id. at 3) and that their

alleged liability depended on theories of respondeat superior

liability, which do not exist under Section 1983 (see id. (citing

Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009))). Many allegations

against Kimbrough suffered from similar deficiencies, and the

Complaint lodged duplicative claims against Kimbrough in his

official capacity and the Forsyth County Sheriff’s Department, such

that the latter need not remain in this case. (See id. at 3–4.)

Finally, the undersigned deemed conclusory the allegations

pertaining to Whisenhunt, Williams, and Quashie, explaining that

Plaintiff had not plausibly alleged Whisenhunt’s “control [over]

the allocation of money” (id. at 4 (noting Whisenhunt’s status as

“single member of the Board of Commissioners”)) and had attempted

to inculpate Williams and Quashie “for the actions or decisions of

others” (id. at 5).

However, the undersigned concluded that the Complaint

adequately stated a claim against (i) Kimbrough for “den[ying]

Plaintiff masks and testing for C[OVID]-19 for more than two and

one[-]half months while eleven officers and an unknown number of

inmates at the Detention Center tested positive for the virus” (id.

at 3) and (ii) Rhoades for “fail[ing] to allow Plaintiff to see a

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specialist for [fragments in Plaintiff’s body following a gunshot

wound to his head and partial immobility on his right side

or] . . . to receive physical therapy to regain the use of his

right side” (id. at 5). Accordingly, the undersigned recommended

that the Court dismiss the claims against Wellpath, HIG, the

Forsyth County Sheriff’s Department, Whisenhunt, Williams, and

Quashie but allow the claims against Kimbrough and Rhoades to

proceed. (See id. at 6.) The undersigned also conditionally

granted Plaintiff’s request to proceed in forma pauperis. (See

id.)

Shortly thereafter, Plaintiff supplemented the Complaint’s

allegations as to Quashie, explaining that she knowingly gave

Plaintiff “mental health medicine” instead of effective pain

medication. (See Docket Entry 6 (the “Supplement”) at 1-2.)

Plaintiff further groused about his lack of placement on a medical

unit. (See id. at 1.) Upon review of the Supplement and

Recommendation, the Court (per Chief United States District Judge

Thomas D. Schroeder) first deemed conclusory many of the

Supplement’s allegations against Quashie (Docket Entry 10 at 1

n.1), observing that Plaintiff merely “disagree[d] with [her]

judgment about proper pain management” (id.) and that Plaintiff

failed to adequately allege Quashie’s knowledge of Plaintiff’s need

for particular treatment and her inaction despite such knowledge

(see id.). The Court then adopted the Recommendation (id. at 1),

allowing “Plaintiff’s deliberate-indifference claims against

Defendants Kimbrough and Rho[a]des . . . to proceed but” dismissing

“the remainder of the claims in the [C]omplaint . . . pursuant to

28 U.S.C. § 1915A for failing to state a claim upon which relief

may be granted.” (Id. at 2.)

The undersigned directed the Clerk to “send Plaintiff a

summons for each [D]efendant named in the [C]omplaint” (Docket

Entry 7 at 1) and ordered Plaintiff to provide, on each summons,

“an address suitable for service” (id.). Following the Clerk’s and

Plaintiff’s compliance with those directives, the Clerk delivered

summonses for Kimbrough and Rhoades, along with the Complaint and

Supplement, to the United States Marshals Service (“USMS”) for

service. (See Docket Entry 8.) On April 14, 2021, USMS sent the

documents to Rhoades by certified mail to an address in Nashville,

Tennessee. (See Docket Entry 11 at 1.) The return receipt

reflects delivery on April 19, 2021, to an address associated with

Wellpath, and an indecipherable signature by a recipient identified

as neither “agent” nor “addressee” (see id. at 2).

Rhoades simultaneously answered the Complaint (Docket Entry

18) and moved to dismiss on several grounds (Docket Entry 19). In

support of dismissal, Rhoades has argued that Plaintiff’s non-

compliance with North Carolina Rule of Civil Procedure 9(j) (“Rule

9(j)”) barred any medical-malpractice claim that he attempted to

assert. (See Docket Entry 20 at 5–6.) Moreover, Rhoades has

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contended that Plaintiff failed to (i) exhaust administrative

remedies (see id. at 6–8), (ii) effect proper service of process on

Rhoades (see id. at 8–10), and (iii) state a viable deliberate-

indifference claim (see id. at 11–16). Together with the Motion

and supporting memorandum, Rhoades filed an affidavit (the “Popp

Affidavit”) of Stephanie Popp, a Wellpath representative who

averred as to the duration of Rhoades’s association with Wellpath.

(See id. at 20 (stating that Rhoades provided medical services at

the Detention Center between 2010 and April 2018).)

The Clerk sent Plaintiff a letter advising him of his “right

to file a 20-page response in opposition . . . within 21 days from

the date of service of the [ M]otion[] upon [him]” (Docket Entry 21

at 1). The letter specifically cautioned Plaintiff that a “failure

to respond . . . within the allowed time may cause the [C]ourt to

conclude that [Rhoades]’s contentions are undisputed and/or that

[Plaintiff] no longer wish[es] to pursue the matter,” as well as

that, “unless [Plaintiff] file[s] a response in opposition to the

[ M]otion, it is likely [his] case will be dismissed . . . .”

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Despite these warnings, Plaintiff did not respond. (See

Docket Entries dated May 26, 2021, to present.)?*

DISCUSSION

I. Relevant Legal Standards

A. Exhaustion

The Prison Litigation Reform Act of 1995, as amended (the

“PLRA”), provides that “[n]o action shall be brought with respect

to prison conditions under [S]lection 1983 . . . , or any other

Federal law, by a prisoner confined in any jail, prison, or other

correctional facility until such administrative remedies as are

available are exhausted.” 42 U.S.C. § 1997e(a). This “exhaustion

requirement applies to all inmate suits about prison life, whether

they involve general circumstances or particular episodes, and

whether they allege excessive force or some other wrong.” Porter

3 By local rule, “[i]lf a respondent fails to file a response

within the time required .. ., the motion will be considered and

decided as an uncontested motion, and ordinarily will be granted

without further notice.” M.D.N.C. LR 7.3(k). “When a defendant’s

motion to dismiss a complaint states specific deficiencies that

warrant dismissal, and presents supporting legal arguments, it is

the plaintiff’s obligation to respond substantively to address

them. Failure to respond to the defendant’s arguments constitutes

abandonment of those claims. Any abandoned claims are subject to

dismissal with prejudice.” Kitchings v. Shelton, Case No. 17-882,

2018 WL 398285, at *6 (D. Md. Jan. 12, 2018) (unpublished)

(internal citations omitted). However, the United States Court of

Appeals for the Fourth Circuit requires substantive review of even

unopposed motions to dismiss. See Stevenson v. City of Seat

Pleasant, 743 F.3d 411, 416 n.3 (4th Cir. 2014) (“Even though [the

plaintiffs] did not challenge the motions to dismiss, we note that

the district court nevertheless has an obligation to review the

motions to ensure that dismissal is proper.”).

v. Nussle, 534 U.S. 516, 532 (2002). The defendant bears the

burden of establishing that a prisoner failed to exhaust

administrative remedies. See Jones v. Bock, 549 U.S. 199, 216

(2007) (“We conclude that failure to exhaust is an affirmative

defense under the PLRA, and that inmates are not required to

specially plead or demonstrate exhaustion in their complaints.”).

“[A]n affirmative defense (such as failure to exhaust

administrative remedies) may be decided on a motion to dismiss

where the facts necessary to reach that decision appear on the

complaint and the documents attached thereto.” Murray v. Dobyns,

No. 1:12CV214, 2013 WL 3326661, at *2 (M.D.N.C. July 1, 2013)

(unpublished), recommendation adopted, slip op. (M.D.N.C. Jan. 14,

2014) The “exhaustion of administrative remedies under the PLRA

is a question of law to be determined by the judge ... .” Drippe

v. Tobelinski, 604 F.3d 778, 782 (3d Cir. 2010); see also Lee v.

Willey, 789 F.3d 673, 677 (6th Cir. 2015) (“[A]Jll . . . of the

circuits that have considered the issue agree that judges may

resolve factual disputes relevant to the exhaustion issue without

the participation of a jury.” (internal quotation marks omitted)).

A prisoner satisfies the PLRA exhaustion requirement when he “ha[s]

4 As explained in more detail below, the Court at this stage

may “take judicial notice of matters of public record,” Philips v.

Pitt Cnty. Mem’l Hosp., 572 F.3d 176, 180 (4th Cir. 2009), and

“consider documents . . . attached to the motion to dismiss, so

long as they are integral to the complaint and authentic,” id.

(internal citation omitted).

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utilized all available remedies ‘in accordance with the applicable

procedural rules,’ so that prison officials have been given an

opportunity to address the claims administratively.” Moore v.

Bennette, 517 F.3d 717, 725 (4th Cir. 2008) (quoting Woodford v.

Ngo, 548 U.S. 81, 88 (2006)). The relevant facility’s grievance

procedures determine the steps that a prisoner must take to achieve

exhaustion. See id. at 726.

B. Service of Process

“Under Rule 12(b)(5) of the Federal Rules of Civil Procedure

[‘Rule 12(b)(5)’], a defendant can move to dismiss a complaint

where service of process failed to comply with the requirements of

Rule 4 of the Federal Rules of Civil Procedure [‘Rule 4’].” Smith

v. St. Francis Hosp., Civ. Action No. 6:12-2533, 2013 WL 3973170,

at *2 (D.S.C. July 31, 2013) (unpublished). Rule 4 provides for

service on an individual by

(1) following state law for serving a summons in an

action brought in courts of general jurisdiction in the

state where the district court is located or where

service is made; or

(2) doing any of the following:

(A) delivering a copy of the summons and of the

complaint to the individual personally;

(B) leaving a copy of each at the individual’s

dwelling or usual place of abode with someone of

suitable age and discretion who resides there; or

(C) delivering a copy of each to an agent

authorized by appointment or by law to receive

service of process.

Fed. R. Civ. P. 4(e). As relevant here, North Carolina law allows

for service of process by various methods, to include by

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“registered or certified mail, return receipt requested,” N.C. Gen.

Stat. § 1A-1, Rule 4(j)(1)(c).

Regarding compliance with such rules:

When the process gives the defendant actual notice of the

pendency of the action, the rules, in general, are

entitled to a liberal construction. When there is actual

notice, every technical violation of the rule or failure

of strict compliance may not invalidate the service of

process. But the rules are there to be followed, and

plain requirements for the means of effecting service of

process may not be ignored.

Armco, Inc. v. Penrod-Stauffer Bldg. Sys., Inc., 733 F.2d 1087,

1089 (4th Cir. 1984). “Even so, courts generally allow pro se

plaintiffs a chance to remedy technical insufficiencies in service

of process.” Thomas v. Nelms, No. 1:09CV491, 2013 WL 593419, at *1

(M.D.N.C. Feb. 14, 2013) (unpublished) (Eagles, J.); accord Miller

v. Northwest Region Libr. Bd., 348 F. Supp. 2d 563, 567 (M.D.N.C.

2004) (Beaty, J.) (“[P]ro se litigants are allowed even greater

latitude to correct defects in service of process and pleadings.”

(emphasis omitted)). “Dismissal of an action . . . under Rule

12(b)(5) for insufficiency of service is within the discretion of

the court.” Argot v. Harden, C/A No. 4:11-2755, 2012 WL 6839310,

at *5 (D.S.C. Sept. 27, 2012) (unpublished), recommendation

adopted, 2013 WL 132455 (D.S.C. Jan. 10, 2013) (unpublished).

C. Failure to State a Claim

1. Rule 12(b)(6)

“A motion to dismiss under [Federal] Rule [of Civil Procedure]

12(b)(6) [‘Rule 12(b)(6)’] tests the sufficiency of a complaint,”

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but “does not resolve contests surrounding the facts, the merits of

a claim, or the applicability of defenses.” Republican Party of

N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992). Accordingly, in

reviewing a motion to dismiss, the Court must “accept the facts

alleged in the complaint as true and construe them in the light

most favorable to the plaintiff.” Coleman v. Maryland Ct. of App.,

626 F.3d 187, 189 (4th Cir. 2010), aff’d sub nom. Coleman v. Court

of App. of Md., 566 U.S. 30 (2012). The Court must also “draw all

reasonable inferences in favor of the plaintiff.” E.I. du Pont de

Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 440 (Ath Cir.

2011) (internal quotation marks omitted).

To avoid Rule 12(b) (6) dismissal, a complaint must contain

sufficient factual allegations “to ‘state a claim to relief that is

plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

(2007)). To qualify as plausible, a claim needs sufficient factual

content to support a reasonable inference of the defendant’s

liability for the alleged misconduct. See id. (citing Twombly, 550

U.S. at 556). “Where a complaint pleads facts that are ‘merely

consistent with’ a defendant’s liability, it ‘stops short of the

line between possibility and plausibility of “entitlement to

relief.”’” Id. (quoting Twombly, 550 U.S. at 557). “At bottom,

determining whether a complaint states . ..a plausible claim for

relief . . . will ‘be a context-specific task that requires the

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reviewing court to draw on its judicial experience and common

sense.’” Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009)

(quoting Iqbal, 556 U.S. at 679).

In ruling on a Rule 12(b)(6) motion, “a court evaluates the

complaint in its entirety, as well as documents attached or

incorporated into the complaint.” E.I. du Pont, 637 F.3d at 448.

The Court may also “[c]onsider[] . . . a document attached to a

motion to dismiss . . . only when the document is ‘integral to and

explicitly relied on in the complaint,’ and when ‘the plaintiffs do

not challenge the document’s authenticity.’” Zak v. Chelsea

Therapeutics Int’l, Ltd., 780 F.3d 597, 606–07 (4th Cir. 2015)

(internal brackets omitted) (quoting American Chiropractic Ass’n v.

Trigon Healthcare, Inc., 367 F.3d 212, 234 (4th Cir. 2004)).

Generally, a “court cannot go beyond these documents” without

“convert[ing] the motion [to dismiss] into one for summary

judgment.” E.I. du Pont, 637 F.3d at 448. Nevertheless, “[i]n

reviewing a Rule 12(b)(6) [motion, the Court] may properly take

judicial notice of matters of public record.” Philips v. Pitt

Cnty. Mem’l Hosp., 572 F.3d 176, 180 (4th Cir. 2009).

2. Deliberate Indifference

“Under [Section] 1983, a state actor may be liable if he

‘subjects, or causes to be subjected’ an individual ‘to the

deprivation of any rights, privileges, or immunities secured by the

Constitution.’ As a general matter, a [state actor] may incur

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[Section] 1983 liability only through affirmative misconduct.”

Randall v. Prince George’s Cnty., 302 F.3d 188, 202 (4th Cir. 2002)

(quoting Parratt v. Taylor, 451 U.S. 527, 535-36 (1981)).

“[Section] 1983 must be ‘read against the background of tort

liability that makes a man responsible for the natural consequences

of his actions.’” Vinnedge v. Gibbs, 550 F.2d 926, 928 (Ath Cir.

1977) (quoting Monroe v. Pape, 365 U.S. 167, 187 (1961)).

Accordingly, “it must be ‘affirmatively shown that the official

charged acted personally in the deprivation of the plaintiff’s

rights.’” Wright v. Collins, 766 F.2d 841, 850 (4th Cir. 1985)

(quoting Vinnedge, 550 F.2d at 928).

Turning to the constitutional deprivation alleged here,

when the State by the affirmative exercise of its power

so restrains an individual’s liberty that it renders him

unable to care for himself, and at the same time fails to

provide for his basic human needs — e.g., food, clothing,

shelter, medical care, and reasonable safety —- it

transgresses the substantive limits on state action set

by the Eighth Amendment and the Due Process Clause.

DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs., 489 U.S. 189, 200

(1989) (emphasis added). Courts evaluate pretrial detainees’

conditions of confinement in state custody under the Due Process

Clause of the Fourteenth Amendment. See Bell v. Wolfish, 441 U.S.

520, 535 (1979). “The due process rights of a pretrial detainee

are at least as great as the [E]lighth [A]mendment protections

available to the convicted prisoner.” Martin v. Gentile, 849 F.2d

863, 870 (4th Cir. 1988). “Thus, deliberate indifference to the

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serious medical needs of a pretrial detainee violates the [D]ue

[P]rocess [C]lause.” Young v. City of Mount Ranier, 238 F.3d 567,

575 (4th Cir. 2001).

In other words, “even though [a pretrial detainee’s

deliberate-indifference] claim arises under the Fourteenth

Amendment, [courts] have traditionally looked to Eighth Amendment

precedents in considering a Fourteenth Amendment claim of

deliberate indifference to serious medical needs.” Mays v.

Sprinkle, 992 F.3d 295, 300 (4th Cir. 2021). The Eighth Amendment

requires that prison officials “provide humane conditions of

confinement,” which includes, among other things, “ensur[ing] that

inmates receive adequate . . . medical care,” Farmer v. Brennan,

511 U.S. 825, 832–33 (1994).

To make out a constitutional claim for deprivation of medical

care, a plaintiff must show that a defendant “acted with

‘deliberate indifference’ (subjective) to [the plaintiff’s]

‘serious medical needs’ (objective).” Iko v. Shreve, 535 F.3d 225,

241 (4th Cir. 2008). A medical need qualifies as serious if it

“has been diagnosed by a physician as mandating treatment

or . . . is so obvious that even a lay person would easily

recognize the necessity for a doctor’s attention.” Id. (internal

quotation marks omitted). A defendant displays deliberate

indifference when he possesses knowledge of the risk of harm to an

inmate and knows that “his actions were insufficient to mitigate

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the risk of harm to the inmate arising from his medical needs.”

Id. (emphasis and internal quotation marks omitted); see also

Scinto v. Stansberry, 841 F.3d 219, 225 (4th Cir. 2016) (“To prove

deliberate indifference, plaintiffs must show that ‘the official

kn[{ew] of and disregard[ed] an excessive risk to inmate health or

safety.’” (brackets in original) (quoting Farmer, 511 U.S. at

837)).

“The subjective component .. . sets a particularly high bar

to recovery.” Iko, 535 F.3d at 241. In particular, “deliberate

indifference entails something more than mere

negligence, . . . [but] something less than acts or omissions for

the very purpose of causing harm or with knowledge that harm will

result.” Farmer, 511 U.S. at 835. “It requires that a [defendant]

actually know of and disregard an objectively serious condition,

medical need, or risk of harm.” De’lonta v. Johnson, 708 F.3d 520,

525 (4th Cir. 2013) (internal quotation marks omitted). “Failure

to respond to an inmate’s known medical needs raises an inference

[of] deliberate indifference to those needs.” Scinto, 841 F.3d at

232 (brackets in original) (quoting Miltier v. Beorn, 896 F.2d 848,

853 (4th Cir. 1990), overruled in part on other grounds by Farmer,

511 U.S. at 837). However, neither “[n]legligence [n]or malpractice

in the provision of medical services . . . constitute[s] a claim

under [Section] 1983.” Wright, 766 F.2d at 849; see also Harris v.

Poole, No. 1:18CV378, 2020 WL 531954, at *14 (M.D.N.C. Feb. 3,

17

2020) (unpublished) (“[D]isagreements between an inmate and medical

provider regarding the inmate’s medical care, without more, do not

create a constitutional claim, and inmates possess no

constitutional right to treatment by a particular type of medical

provider.”), recommendation adopted, slip op. (M.D.N.C. Mar. 30,

2020).

Finally, “a significant delay in the treatment of a serious

medical condition may, in the proper circumstances,” constitute

deliberate indifference. Webb v. Hamidullah, 281 F. App’x 159, 166

(4th Cir. 2008). “A[ constitutional] violation only occurs,

however, if the delay results in some substantial harm to the

patient.” Id. at 166-67 (internal footnote omitted); accord Sharpe

v. South Carolina Dep’t of Corr., 621 F. App’x 732, 734 (4th Cir.

2015) (“A delay in treatment may constitute deliberate indifference

if the delay exacerbated the injury or unnecessarily prolonged an

inmate’s pain.”).

3. Negligence

North Carolina law recognizes a claim for medical malpractice,

or “[a] civil action for damages for personal injury or death

arising out of the furnishing or failure to furnish professional

services in the performance of medical, dental, or other health

care by a health care provider.” N.C. Gen. Stat.

§ 90-21.11(2)(a).5 Furthermore,

5 A “health care provider” means “[a] person who pursuant to

the provisions of Chapter 90 of the General Statutes is licensed,

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North Carolina imposes substantive legal requirements

that a person must follow to pursue a medical[-

]malpractice claim. Under [Rule] 9(j), a plaintiff’s

medical[-]malpractice complaint must assert that the

medical care has been reviewed by a person who is

reasonably expected to qualify (or whom the plaintiff

will move to qualify) as an expert witness and who is

willing to testify that the medical care received by the

plaintiff did not comply with the applicable standard of

care.

Deal v. Central Prison Hosp., No. 5:09CT3182, 2011 WL 322403, at *4

(E.D.N.C. Jan. 27, 2011) (unpublished) (internal citation omitted).

Although federal courts previously enforced Rule 9(j) and

dismissed noncompliant medical-malpractice claims, see id., the

United States Court of Appeals for the Fourth Circuit recently

concluded that an analogous state-law requirement did not apply in

federal court, see Pledger v. Lynch, 5 F.4th 511, 517–24 (4th Cir.

2021) (concluding that Federal Rules of Civil Procedure displace

West Virginia’s certification requirement and deeming the latter

inapplicable to claim under Federal Tort Claims Act (“FTCA”)).

Following that reasoning, a neighboring court recently rejected

Rule 9(j) noncompliance as a basis for dismissing an FTCA claim.

Saylon v. United States, No. 5:20CV176, 2021 WL 3160425, at *3–4

(E.D.N.C. July 26, 2021) (unpublished).

or is otherwise registered or certified to engage in the practice

of or otherwise performs duties associated with any of the

following: medicine, surgery, dentistry, pharmacy, optometry,

midwifery, osteopathy, podiatry, chiropractic, radiology, nursing,

physiotherapy, pathology, anesthesiology, anesthesia, laboratory

analysis, rendering assistance to a physician, dental hygiene,

psychiatry, or psychology.” N.C. Gen. Stat. § 90-21.11(1)(a).

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II. Analysis

A. Exhaustion

Rhoades has asserted that Plaintiff failed to exhaust

administrative remedies, warranting dismissal. (See Docket Entry

20 at 6–8.) In that regard, after describing the three-step

administrative remedy procedure (“ARP”) employed by the Division of

Adult Correction within the North Carolina Department of Public

Safety, Rhoades has emphasized the allegation in the Complaint

suggesting that Plaintiff did not complete all parts of the

grievance process. (See id. at 7–8 (quoting Docket Entry 2 at

34).)6 Additionally, Rhoades has contended that “Plaintiff did not

attach evidence of an exhausted appeal process.” (Id. at 8.)

However, as a pretrial detainee, Plaintiff’s claims arose at

the Detention Center (a local jail), not at a state prison facility

operated by the North Carolina Department of Public Safety, such

that the ARP utilized by the latter bears no obvious significance

here. See generally N.C. Gen. Stat. §§ 148-118.1 - 148-118.8

(providing for creation of ARP applicable to “all prisoners in the

physical custody of the Division of Adult Correction” (emphasis

added)). Rhoades has offered no information about the Detention

Center’s grievance process, and independent research (for purposes

6 An electronic version of the ARP upon which Rhoades

evidently has relied appears at this address:

https://files.nc.gov/ncdps/div/Prisons/Policy_Procedure_Manual/G.

0300_08_01_13.pdf

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of taking judicial notice) yielded no results. Identification of

the Detention Center’s grievance process must precede a

determination of whether Plaintiff complied with the same. See

Moore, 517 F.3d at 726.

In any event, as Rhoades correctly has noted elsewhere, “[a]n

inmate does not need to demonstrate exhaustion of administrative

remedies in his complaint.” (Docket Entry 20 at 6 (citing Custis

v. Davis, 851 F.3d 358, 361 (4th Cir. 2017)).) Exhaustion provides

an appropriate basis for dismissal only when “all facts necessary

to the affirmative defense ‘clearly appear[] on the face of the

complaint.’” Goodman v. PraxAir, Inc., 494 F.3d 458, 464 (4th Cir.

2007) (italics omitted) (quoting Richmond, Fredericksburg & Potomac

R.R. v. Forst, 4 F.3d 244, 250 (4th Cir. 1993)). Here, the

Complaint and exhibits attached thereto establish neither

exhaustion of administrative remedies nor Plaintiff’s failure to

accomplish the same. (See Docket Entry 2 at 34 (alleging

completion of “most .. . grievance processes” (emphasis added)).)

In other words, the Complaint remains equivocal, insofar as it

could suggest either that Plaintiff fully exhausted only some

grievances or that he failed to fully exhaust any grievance.

Importantly, because Defendants bear the burden of proving this

affirmative defense, Plaintiff need not have “specially plead[ed]

or demonstrate[d] exhaustion,” Jones, 549 U.S. at 216. For the

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foregoing reasons, the Court should decline to dismiss on

exhaustion grounds.

B. Service of Process

Rhoades also contests the sufficiency of service of process

and seeks dismissal under Rule 12(b) (2) and Rule 12(b) (5). (See

Docket Entry 20 at 8-10 (arguing that improper service of process

deprives Court of personal jurisdiction) .) More specifically,

Rhoades has asserted that Plaintiff mailed the summons and

Complaint to “Wellpath’s principal place of business[,] not []

Rhoades[’s] home address” (id. at 10) and that “no person at

Wellpath was authorized to accept service on behalf of [] Rhoades

because he was no longer employed at th[at] location” (id.). (See

also id. at 9-10 (citing Stewart v. GM Fin., No. 3:19CV411, 2019 WL

5850425, at *2 (W.D.N.C. Nov. 7, 2019) (unpublished), and Stanley

v. Gaston Cnty. Dep’t of Health & Human Servs., No 3:15CV551, 2016

WL 5867431, at *1-2 (W.D.N.C. Oct. 6, 2016) (unpublished) ) .)

Insofar as Rhoades has suggested that a certified mailing to

an individual’s place of employment fails to constitute proper

service of process, “[a] plaintiff is not required to mail the

summons and complaint to a defendant’s residence; sending the suit

papers to a defendant’s place of employment is within the rule,”

Moore _v. Cox, 341 F. Supp. 2d 570, 573 (M.D.N.C. 2004).’ In

7 Neither Stewart nor Stanley explicitly discussed whether

the plaintiffs had served the defendants by certified mail. See

Stewart, 2019 WL 5850425, at *7; Stanley, 2016 WL 5867431, at *2.

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connection with that method, North Carolina law contemplates

“deliver[y] to the addressee,” N.C. Gen. Stat. § 1A-1, Rule

4(j)(1)(c), and provides a procedure by which a defendant can

challenge service of process when someone other than the addressee

signs the delivery receipt, see N.C. Gen. Stat. § 1A-1, Rule

4(j2)(2). Under normal circumstances, a plaintiff may file an

affidavit regarding the details of such certified mailing and

thereby “raise[] a presumption that the person who received the

mail or delivery and signed the receipt was an agent of the

addressee authorized by appointment or by law to be served or to

accept service of process,” id.

Here, Plaintiff has filed no such affidavit. (See Docket

Entries dated Apr. 26, 2021, to present.) That failure does not

entitle Rhoades to dismissal, however, particularly given

Plaintiff’s status as a pauper and the Court’s corresponding

responsibility to effect service of process, see 28 U.S.C.

§ 1915(d), as well as Rhoades’s actual notice of this action, see

Karlsson v. Rabinowitz, 318 F.2d 666, 668 (4th Cir. 1963) (“[W]here

actual notice of the commencement of the action and the duty to

defend has been received by the one served, the provisions of Rule

4 . . . should be liberally construed to effectuate service and

uphold the jurisdiction of the court, thus insuring the opportunity

for a trial on the merits.”). See also Reinhold v. Tisdale, Civ.

Action No. 8:06-3311, 2007 WL 2156661, at *3 (D.S.C. Apr. 30, 2007)

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(unpublished) (“Ordinarily, dismissal is proper when there is

prejudice to the defendant or where proper service is unlikely to

be accomplished.”), recommendation adopted, 2007 WL 2173368 (D.S.C.

July 26, 2007) (unpublished). For those reasons, the Court should

decline to dismiss based on Rule 12(b)(5), opting instead to “quash

[any] insufficient service and allow [P]laintiff to perfect service

through the [USMS].” Argot, 2012 WL 6839310, at *5.8

8 To the extent Rhoades has invoked Rule 12(b)(2) and argued

for dismissal based on lack of personal jurisdiction,

a respected treatise instructs that:

Although the questions of personal jurisdiction and

service of process are closely interrelated, service of

process is merely the means by which a federal court

gives notice to the defendant and asserts jurisdiction

over him; the actual existence of personal jurisdiction

should be challenged by a Rule 12(b)(2) motion. A few

courts have noted this distinction between the motions,

but the cases indicate that it generally is quite

acceptable to question the court’s jurisdiction by a

motion objecting to service of process. The occasional

judicial failure to distinguish sharply between the two

has not caused any difficulty, however, because the

courts have been able to determine the merits of the real

issue before them regardless of how the motion is

designated and nothing appears to turn on the

misdesignation.

Garcia v. McClaskey, No. 1:12CV93, 2015 WL 5007885, at *2 n.3

(M.D.N.C. Aug. 20, 2015) (unpublished) (quoting Wright & Miller, et

al., 5B Federal Practice & Procedure § 1353 (3d ed. 1998)), aff’d,

693 F. App’x 236 (4th Cir. 2017). Because Rhoades’s sole challenge

to personal jurisdiction targets service of process (see Docket

Entry 20 at 8-10), Rule 12(b)(5) best applies, see Plant Genetic

Sys., N.V. v. Ciba Seeds, 933 F. Supp. 519, 526 (M.D.N.C. 1996)

(Osteen, Sr., J.) (“A motion to dismiss under Rule 12(b)(5) is the

appropriate means for challenging the manner or sufficiency of

service of process.”).

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C. Failure to State a Claim

1. Deliberate Indifference

Pursuant to Rule 12(b)(6), Rhoades has lodged two challenges

to the Complaint. First, he has asserted that “[he] was not an

employee or contractor of Wellpath at the time of Plaintiff’s

complaints against him.” (Docket Entry 20 at 11 (citing Popp

Affidavit, ¶¶ 4–5).) Second, Rhoades has contended that the

Complaint fails to adequately allege either element of a

deliberate-indifference claim. (See id. at 12–16.)

Regarding the first argument, Plaintiff has relied on

materials outside the Complaint (and attached exhibits) in urging

dismissal based on his supposed lack of involvement in Plaintiff’s

medical care during 2020. (See id. at 11 (citing Popp Affidavit,

¶¶ 4–5).) Although the Court may consider “documents attached to

the [M]otion . . . , so long as they are integral to the

[C]omplaint and authentic,” Philips, 572 F.3d at 180, Plaintiff has

not relied on the Popp Affidavit in any way, and Rhoades has not

explained how that document qualifies as “integral to the

[C]omplaint,” id. (See Docket Entry 20 at 11.) Therefore, the

Court should decline to dismiss this action based on the Popp

Affidavit.

Turning to Rhoades’s remaining argument, the Court should

conclude that the Complaint adequately alleges both the subjective

and objective elements of a deliberate-indifference claim.

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Regarding the former, numerous courts have deemed a gunshot

wound — even an older or partially healed one — a sufficiently

serious medical need for purposes of an eighth-amendment claim.

See, e.g., Miles v. Booth, 238 F.3d 422 (table), 2000 WL 1800565,

at *3 (6th Cir. Nov. 30, 2000) (unpublished); Sago v. Lashbrook,

No. 18CV160, 2018 WL 1640483, at *4 (S.D. Ill. Apr. 5, 2018)

(unpublished) (collecting cases). Plaintiff also has alleged that

such injury caused a partial inability to use the right side of his

body, which could constitute an objectively serious medical need.

See Drouin v. Contra Costa Cnty., No. 15CV3694, 2017 WL 1208371, at

*5 (N.D. Cal. Apr. 3, 2017) (unpublished) (deeming allegations of

“readily apparent” partial paralysis after broken leg sufficient to

state eighth-amendment claim).

As concerns the subjective prong, in light of the Court’s

obligation to “accept the facts alleged in the [C]omplaint as true

and construe them in the light most favorable to [P]laintiff,”

Coleman, 626 F.3d at 189, the Court should determine that the

Complaint passes muster. In particular, Plaintiff has alleged that

Rhoades knew about (i) the gunshot wound to Plaintiff’s head,

(ii) the fragments that remained in Plaintiff’s body, and (iii) the

resulting “severe chronic pain” that Plaintiff experienced. (See

Docket Entry 2 at 22.) Despite that knowledge, Rhoades refused to

refer Plaintiff to a specialist (see id. at 9, 22), “delay[ed]

seeing [him]” (id. at 9), and “avoided seeing [him] face to face”

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(id. at 22). Additionally, Rhoades denied Plaintiff’s request for

physical therapy, despite the fact that Plaintiff, after the

gunshot wound, lacked “full usage of [his] right side” (id.). At

this stage, those allegations demonstrate a risk to Plaintiff’s

health “sufficiently obvious that [Rhoades] ‘must have known’ of

it,” Jackson v. Lightsey, 775 F.3d 170, 179 (4th Cir. 2014)

(quoting Farmer, 511 U.S. at 842), and a failure to respond

reasonably to such risk, see generally Mitchell v. McDonell, Case

No. 3:06-180, 2008 WL 5429704, at *1 (W.D. Pa. Dec. 8, 2008)

(unpublished) (“[I]t is sufficient for a plaintiff to allege

circumstantial evidence that allows the conclusion that the

necessary course of action was so obvious and the actual course of

action taken by the defendant was so unresponsive that the

defendant must have been aware of and disregarded it.”),

recommendation adopted in part, 2008 WL 5429701 (W.D. Pa. Dec. 30,

2008) (unpublished).

2. Negligence

To the extent the Complaint contains a negligence claim,

Rhoades has sought dismissal based on Plaintiff’s non-compliance

with Rule 9(j). (See Docket Entry 20 at 5–6.) In support of that

position, Rhoades has suggested that “district courts in this

circuit are . . . unanimous that a Rule 9(j) certification is

required to sustain a medical[-]malpractice action . . . in North

Carolina.” (Id. at 6 (quoting Littlepaige v. United States, 528 F.

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App’x 289, 292 (4th Cir. 2013) (unpublished)).) However, recent

Fourth Circuit authority has rendered Rule 9(j) a nullity in

federal court. See Pledger, 5 F.4th at 517–24. Accordingly, the

Court should decline to conclude that Rule 9(j) bars any portion of

the Complaint.

CONCLUSION

Any failure by Plaintiff to exhaust administrative remedies

does not appear on the face of the Complaint, so Rhoades lacks

entitlement to dismissal on exhaustion grounds. Additionally,

Plaintiff may cure the supposedly improper service of process as an

alternative to dismissal. To the extent Rhoades has denied

involvement in Plaintiff’s care, the Court should decline to decide

factual questions as this stage. Finally, the Court should

conclude that the Complaint adequately states a deliberate-

indifference claim against Rhoades.

IT IS THEREFORE RECOMMENDED that the Motion (Docket Entry 19)

be DENIED.

/s/ L. Patrick Auld

L. Patrick Auld

United States Magistrate Judge

November 10, 2021

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