# RICHARDSON v. WELLPATH HEALTH CARE

> District Court, M.D. North Carolina · November 10, 2021

URL: https://www.frixlaw.com/law-library/cases/10653617

## Case

- **Court:** District Court, M.D. North Carolina
- **Decided:** November 10, 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/10653617

## How later opinions describe it (automated extraction)

- 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”)

## Opinion text

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
5
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
7
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 . . . .”

8
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).
10

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
11
“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,”
12
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

13

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

14
[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

15

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

16
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,
18
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).
19
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
20
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

21

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.
22

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)

23
(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.”).
24
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.
25
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”

26
(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.

27
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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10653617. Public record. Not legal advice.