# BUTLER v. KIMBROUGH

> District Court, M.D. North Carolina · August 11, 2023

URL: https://www.frixlaw.com/law-library/cases/10653686

## Case

- **Court:** District Court, M.D. North Carolina
- **Decided:** August 11, 2023
- **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/10653686

## How later opinions describe it (automated extraction)

- recognizing that party’s failure “to respond to a summary judgment motion may leave uncontroverted those facts established by the motion”
- emphasizing that deliberate indifference’s “subjective component . . . sets a particularly high bar to recovery”

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
WAYNE H. BUTLER, )
)
Plaintiff, )
)
v. ) 1:21cv782
)
FORSYTH COUNTY SHERRIFF’S OFFICE, )
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 Bobby
Kimbrough’s Motion for Summary Judgment (Docket Entry 19; see also
Docket Entry 24 (Memorandum in Support)). Defendant Kimbrough also
filed related sealing materials. (See Docket Entry 22; Docket
Entry 23.) For the reasons that follow, the Court should grant the
Motion for Summary Judgment and deny as moot the request for
sealing.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Pursuant to 42 U.S.C. § 1983 (“Section 1983”), Wayne Butler
(the “Plaintiff”), a pretrial detainee acting pro se, commenced
this action against several Defendants, including Defendant
Kimbrough, 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
(“FCLEDC”). (See Docket Entry 2 (the “Complaint”) at 1-30.) As
relevant here, Defendant Kimbrough, the Forsyth County Sheriff (id.
at 3), allegedly failed to follow statewide mandates for face
coverings as a result of the COVID-19 pandemic, in that he “made
wearing a mask a mere option left up to the staff” (id. at 15) and,
by designating masks as “contraband [for inmates]” (id at 16),
Defendant Kimbrough “prevented [Plaintiff] from being able to have
a mask in [his] possession” (id.). In addition, Defendant
Kimbrough’s policies allegedly fell short in meeting social
distancing mandates, in that “[Plaintiff] had over 6 cell mates and
was housed in over 7 dorms” (id. at 15), and Plaintiff tested
positive for COVID-19 on January 26, 2021, after “[he] was moved
into a cell with another detainee who had COVID” (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,”
28 U.S.C. § 1915A(b)(1). (See Docket Entry 3 (the
“Recommendation”) at 1.) In connection with that review, the
undersigned concluded that the allegations from the Complaint

referenced above (i.e., those pertaining to alleged (1) mask
directives and (2) social distancing practices) adequately stated
a claim only against Defendant Kimbrough “based on deliberate
indifference to Plaintiff’s health during the pandemic.” (Id. at
4.)
2
Accordingly, the undersigned recommended that the Court
dismiss all claims except those against Defendant Kimbrough. (See
id. at 8.) The Court (per now-Chief United States District Judge
Catherine C. Eagles) ultimately adopted the Recommendation,
ordering “that [ P]laintiff’s claims against [D]efendant Kimbrough
may proceed but that the remainder of the claims in the Complaint
are dismissed pursuant to 28 U.S.C. § 1915A for failing to state a
claim upon which relief may be granted.” (Docket Entry 10 at 2
(certain all-caps and bold typeset omitted).)
Thereafter, the Parties commenced discovery. (See Text Order
dated Aug. 1, 2022 (adopting Scheduling Order).) After discovery
closed, Defendant Kimbrough moved for summary judgment. (See
Docket Entry 19; see also Docket Entry 20 (First Affidavit); Docket
Entry 21 (Second Affidavit); Docket Entry 24 (Memorandum in
Support).) On May 1, 2023, the Clerk sent Plaintiff a letter
advising him of his “right to file a 20-page response in opposition
. . . within 30 days from the date of service of [Defendant
Kimbrough’s Motion for Summary Judgment] upon [him].” (Docket
Entry 25 at 1.) The letter specifically cautioned Plaintiff that

a “failure to respond or . . . file affidavits or evidence in
rebuttal within the allowed time may cause the [C]ourt to conclude
that [Defendant Kimbrough’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
3
[Summary Judgment Motion], it is likely . . . summary judgment
[will be] granted in favor of [Kimbrough].” (Id.)
Plaintiff thereafter filed a Notice with the Court wherein he
indicated that “[he] only received [Defendant Kimbrough’s] notice
of intent [to file dispositive motions (Docket Entry 18)] . . .
[but] ha[d] not received the actual Motion for Summary Judgement
[in order] to file [his] Response in opposition.” (Docket Entry 26
at 1.) As a result, the Court (per the undersigned) ordered that
Defendant Kimbrough “re-serve Plaintiff with [the] Motion for
Summary Judgment (and attachments), [the First] Affidavit (and
attachments), [the Second] Affidavit (and attachments), [the
sealing materials], and [the] Memorandum [in Support].” (Text
Order dated May 30, 2023.) Two days later, counsel for Defendant
Kimbrough certified that “he did re-serve Plaintiff . . . by
depositing [the filings referenced in the May 30 Text Order] in the
United States Postal Service mail in an envelope labeled ‘legal
mail’ and addressed to [Plaintiff].” (Docket Entry 27 at 1.)
Then, on June 13, 2023, the Clerk sent Plaintiff a second letter
advising him of his right to respond, which included the same

cautions as the May 1 letter. (See Docket Entry 28 at 1 (including
same language as Docket Entry 25).)
Despite these warnings, Plaintiff did not respond. (See
Docket Entries dated June 13, 2023, to present.) Given that lack
of response and the fact that Plaintiff did not verify the factual
4
allegations in the Complaint (see Docket Entry 2 at 38
(certification that “the factual allegations have evidentiary
support” for purposes of Federal Rule of Civil Procedure 11)),
Plaintiff’s bare allegations cannot controvert facts which the
Summary Judgment Motion or record establish. See Custer v. Pan Am.
Life Ins. Co., 12 F.3d 410, 416 (4th Cir. 1993) (recognizing that
party’s failure “to respond to a summary judgment motion may leave
uncontroverted those facts established by the motion”).1 For the
reasons that follow, no genuine issue of material fact remains and
the Court should grant the Motion for Summary Judgment.
II. DISCUSSION
A. Summary Judgment Standards
“The [C]ourt shall grant summary judgment if the movant shows
that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a). A genuine dispute of material fact exists “if the
evidence is such that a reasonable jury could return a verdict for

the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S.

1 By local rule, “[i]f 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). However, the Fourth
Circuit requires substantive review of even unopposed motions for
summary judgment. See Custer, 12 F.3d at 416 (“[T]he court, in
considering a motion for summary judgment, must review the motion,
even if unopposed, and determine from what it has before it whether
the moving party is entitled to summary judgment as a matter of
law.”).
5
242, 248 (1986). The movant bears the burden of establishing the
absence of such dispute. Celotex Corp. v. Catrett, 477 U.S. 317,
323 (1986). In analyzing a summary judgment motion, the Court
“draw[s] all reasonable inferences in favor of the non-moving
party. Emmons v. City of Chesapeake, 982 F.3d 245, 250 (4th Cir.
2020). However, “[u]nsupported speculation is not sufficient to
defeat a summary judgment motion.” Felty v. Graves-Humphreys Co.,
818 F.2d 1126, 1128 (4th Cir. 1987)). Rather, the Court must “find
that a reasonable jury could return a verdict for [the nonmoving
party in order for] a genuine factual dispute [to] exist[] . . . .”
Evans v. Technologies Applications & Serv. Co., 80 F.3d 954, 959
(4th Cir. 1996).
B. Deliberate Indifference
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]ighth [A]mendment protections
6
available to the convicted prisoner.” Martin v. Gentile, 849 F.2d
863, 870 (4th Cir. 1988).
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 . . . .” Mays v. Sprinkle, 992 F.3d 295,
300 (4th Cir. 2021). The Eighth Amendment requires that prison
officials “provide humane conditions of confinement,” Farmer v.
Brennan, 511 U.S. 825, 832 (1994), which includes, among other
things, “reasonable measures to guarantee the safety of the
inmates,” id. For constitutional claims in this context, 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 the risk of harm to the
inmate arising from his medical needs.” Iko v. Shreve, 535 F.3d
225, 241 (4th Cir. 2008) (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)).
Of particular importance, “deliberate indifference entails
something more than mere negligence, . . . [but] something less
7
than acts or omissions for the very purpose of causing harm or with
knowledge that harm will result.” Farmer, 511 U.S. at 835. “Tt
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); see also Iko, 535 F.3d at 241
(emphasizing that deliberate indifference’s “subjective component
. . . sets a particularly high bar to recovery”).
C. Liability Under Section 1983
“A state official can be liable in a § 1983 suit in three
ways: in his personal capacity, his official capacity, or in amore
limited way, his supervisory capacity.” King v. Rubenstein, 825
F.3d 206, 223 (4th Cir. 2016). As to personal liability, the
plaintiff must “show that the official, acting under color of state
law, caused the deprivation of a federal right.” Kentucky v.
Graham, 473 U.S. 159, 166 (1985). “As a general matter, a [state
actor] may incur [Section] 1983 liability only through affirmative
misconduct.” Randall v. Prince George’s Cnty., 302 F.3d 188, 202
(Ath 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).
“Official-capacity suits, in contrast, generally represent
only another way of pleading an action against an entity of which
an officer is an agent.” Graham, 473 U.S. at 165 (internal
quotation marks omitted). “To state a[n official-capacity] cause
of action . . . a [S]ection 1983 plaintiff must plead (1) the
existence of an official policy or custom; (2) that the policy or
custom is fairly attributable to the municipality; and (3) that the
policy or custom proximately caused the deprivation of a
constitutional right.” Pettiford v. City of Greensboro, 556 F.
Supp. 2d 512, 530 (M.D.N.C. 2008).
As for supervisory liability, under Fourth Circuit authority,
a supervisor can be liable [under Section 1983] where (1) he
knew that his subordinate was engaged in conduct that posed a
pervasive and unreasonable risk of constitutional injury; (2)
his response showed deliberate indifference to or tacit
authorization of the alleged offensive practices; and (3) []
there was an affirmative causal link between his inaction and
the constitutional injury.
King, 825 F.3d at 224 (internal quotation marks omitted). For the
first element, “[e]stablishing a pervasive and unreasonable risk of
harm requires evidence that the conduct is widespread, or at least
has been used on several different occasions and that the conduct
engaged in by the subordinate poses an unreasonable risk of harm of
constitutional injury.” Shaw v. Stroud, 13 F.3d 791, 799 (4th Cir.
9
1994) (internal quotation marks omitted). Relatedly, a plaintiff
ordinarily cannot satisfy the second element “by pointing to a
single incident or isolated incidents, for a supervisor cannot be
expected to promulgate rules and procedures covering every
conceivable occurrence within the area of his responsibilities.”
Slakan v. Porter, 737 F.2d 368, 373 (4th Cir. 1984) (internal
citation omitted). However, “[a] supervisor’s continued inaction
in the face of documented widespread abuses . . . provides an
independent basis for finding he either was deliberately
indifferent or acquiesced in the constitutionally offensive conduct
of his subordinates.” Id. And as for the third element, proof of
causation “may be direct . . . where the policy commands the injury
of which the plaintiff complains[,] [o]r the causal link may be
supplied by tort principle that holds a person liable for the
natural consequences of his actions.” Wellington v. Daniels, 717
F.2d 932, 936 (4th Cir. 1983).
D. Defendant Kimbrough’s Summary Judgment Motion
Defendant Kimbrough has sought summary judgment on the grounds
that he responded reasonably (and thus necessarily without

deliberate indifference) to the risks posed by the COVID-19
pandemic. (See generally Docket Entry 24 at 11-20 (highlighting
how the FCLEDC implemented CDC Guidance with respect to sanitation
and education, operations, screening procedures, quarantining and
social distancing, personal protective equipment, and testing).)
10
Alternatively, Defendant Kimbrough has contended that, if
constitutional violations occurred, qualified immunity shields him
from liability. (See id. at 20-22 (citing Ross v. Russell, No.
7:20cv000774, 2022 WL 767093 (W.D. Va. Mar. 14, 2022)
(unpublished).) As already noted, Plaintiff did not respond to
Defendant Kimbrough’s arguments. (See Docket Entries dated June
13, 2023, to present.)
E. Analysis
Masking Directives
Defendant Kimbrough moves for summary judgment as to
Plaintiff’s allegations concerning masking directives at the
FCLEDC. (See Docket Entry 24 at 18.) As noted, the Complaint
contends that Defendant Kimbrough “made wearing a mask a mere
option left up to the staff” (Docket Entry 2 at 15) and, by
designating masks as “contraband [for inmates]” (id at 16),
“prevented [Plaintiff] from being able to have a mask in [his]
possession” (id.). The record refutes both these allegations.
In that regard, the record reflects that Plaintiff entered the

FCLEDC on May 4, 2020. (Docket Entry 20 at 2.) Prior to
Plaintiff’s arrival, the record indicates that the FCLEDC
instituted several measures to respond to COVID-19, including
“designat[ing] areas within the facility to house inmates suspected
of having COVID-19” (id. at 3), “screening jail staff, [] medical
staff [], custodians, or any other contractors who entered the
11
facility [for elevated temperatures or symptoms of respiratory
illness]” (id.; see also Docket Entry 20-7 at 1), suspending
“public visitation . . . with the exception of attorney visits”
(Docket Entry 20-7 at 1), and screening new intakes for elevated
temperatures or “signs of respiratory illness” (Docket Entry 20 at
3; see also Docket Entry 20-8 at 2).
Most relevant to the masking allegations, by April 28, 2020,
the FCLEDC “required jail staff, inmate workers, medical staff and
any contract workers to wear N95 masks if they were assigned to a
new intake housing unit . . . [and] required all jail staff,
medical staff, inmate workers, and contractors to wear surgical
masks throughout the entire facility when interacting with
inmates.” (Docket Entry 20 at 5; see also Docket Entry 20-15;
Docket Entry 20-16.) FCLEDC officials repeatedly communicated
these directives to jail staff. (See Docket Entry 20-27 at 1
(“officers need[] to wear masks”); Docket Entry 20-28 at 1 (“[a]ll
staff[] are required to wear a mask . . . [i]t is mandatory that
masks are worn at all times”); Docket Entry 20-29 at 1 (“[p]lease
make sure everyone is wearing your masks . . . we [are] required to

wear them”).) Moreover, starting in December 2020, the FCLEDC
required staff to wear masks at all times “while inside the
facility, and not just [when the staff interacted with] others.”
(Docket Entry 20 at 8; see also Docket Entry 20-30 (memorandum
dated December 3, 2020 setting forth aforementioned policy).)
12
Accordingly, the record undermines the Complaint’s contention that
Defendant Kimbrough “made wearing a mask a mere option.” (Docket
Entry 2 at 15.) On the contrary, by the time Plaintiff arrived at
the FCLEDC, staff had received a directive to wear masks whenever
interacting with inmates (see Docket Entry 20 at 5), and, by
December 2020, had to wear masks at all times, even when not
interacting with inmates (see id. at 8). Plaintiff’s
“[u]nsupported speculation” to the contrary does not suffice at the
summary judgment stage. Felty, 818 F.2d at 1128.
As for the Complaint’s other mask-related allegation, the
record similarly discredits the notion that Defendant Kimbrough
either designated masks as “contraband [for inmates]” (Docket Entry
2 at 16), or took any measure to “prevent[ Plaintiff] from being
able to have a mask in [his] possession” (id.). On that front, the
record reflects (as an initial matter) that at least some inmates
(inmate workers) received masks prior to Plaintiff’s arrival at the
FCLEDC, and had to wear them whenever at work. (See Docket Entry
20 at 5; Docket Entry 20-15 at 1.) The record further shows that,
after certain staff (but no inmates) tested positive for COVID-19

on June 12, 2020 (approximately one month after Plaintiff’s
arrival), the FCLEDC provided surgical masks to all inmates, and
instructed them to wear masks for the following fourteen days.
(See Docket Entry 20 at 6; Docket Entry 20-20 at 1.) Then, the
FCLEDC, beginning in October 2020, instituted a policy of providing
13
masks to all new inmates. (See Docket Entry 20-31.) Following
that, beginning on December 8, 2020, the FCLEDC required inmates to
wear masks any time they left their cells. (See Docket Entry 20 at
7; see also Docket Entry 20-39.) The FCLEDC reiterated this policy
on January 8, 2021, and further provided that inmates could
exchange used surgical masks for new ones at a rate of two per day.
(See Docket Entry 20-40.)
In sum, the available record evidence disproves the
Complaint’s contention that Defendant Kimbrough ever designated
masks as contraband or sought to prevent Plaintiff from possessing
and/or wearing one. (See Docket Entry 2 at 16.) Rather, the
record establishes that the FCLEDC provided masks to inmate workers
beginning in April 2020 (see Docket Entry 20 at 5; Docket Entry 20-
15), all inmates in June 2020 (perhaps only temporarily as a
responsive measure to a rise in COVID-19 cases among staff) (see
Docket Entry 20 at 6; Docket Entry 20-20 at 1), all new inmates

starting in October 2020 (see Docket Entry 20-31), and all inmates
in December 2020 (along with the requirement that the inmates wear
those masks) (see Docket Entry 20-39). Although the FCLEDC stepped
up its masking policy from April until December 2020, no record
evidence suggests that Defendant Kimbrough ever prevented Plaintiff
from procuring a mask; in fact, the record indicates that Plaintiff
never submitted an inmate request for a mask. (See Docket Entry 20
at 11.) Plaintiff’s unverified allegations to the contrary do not
14
suffice for purposes of summary judgment. See Custer, 12 F.3d at
416. Thus, under the circumstances, the Court should conclude that
no reasonable fact-finder could attribute deliberate indifference
to Defendant Kimbrough in his personal, official, or supervisory
capacities as to the mask-aspect of any deliberate indifference
claim.
Social Distancing
The Memorandum in Support also targets the Complaint’s
allegations concerning social distancing. (See Docket Entry 24 at
13-16.) As noted, the Complaint’s allegations on that topic
include that “[Plaintiff] had over 6 cell mates and was housed in
over 7 dorms” (Docket Entry 2 at 15), and that Plaintiff tested
positive for COVID-19 on January 26, 2021, after “[he] was moved
into a cell with another detainee who had COVID” (id.). The record
again refutes the latter allegation, and, the former allegation
(standing alone) cannot as a matter of law support a claim for
deliberate indifference.
First, the record reflects that Plaintiff did test positive

for COVID-19 on January 26, 2021. (See Docket Entry 20 at 10.)
However, this positive test did not follow his placement “into a
cell with another detainee who had COVID” (Docket Entry 2 at 15).
Rather, the record shows that, from September 15, 2020 to January
11, 2021, the FCLEDC housed Plaintiff in the same cell, and he did
not share that cell with another inmate. (See Docket Entry 20-55
15
at 1.) Then, on January 11, 2021, Plaintiff moved into a different
cell, but he again had the cell to himself. (See id. at 2.) The
next day, January 12, Plaintiff moved into another cell and,
although another inmate moved into that cell on the same day, the
record shows that Plaintiff only stayed in this cell for
approximately three hours, and moved out before the other inmate
moved in. (See id. at 3.) Next, Plaintiff moved into a different
cell on the evening of January 12. (See id. at 4.) Another inmate
had previously resided in this cell, but the record again shows
that the inmate moved out prior to the time at which Plaintiff
moved in. (See id.) Plaintiff thereafter stayed in that cell by
himself for the two weeks preceding his positive test for COVID-19.
(See id. at 5.)
Accordingly, the record establishes that Plaintiff never moved
“into a cell with another detainee who had COVID [prior to
Plaintiff testing positive].” (Docket Entry 2 at 15.) In fact,
Plaintiff did not share a cell with anyone for (at least) four
months prior to January 26, 2021. (See generally Docket Entry 20-
55.) Although, on January 12, he moved out of and into a cell on
the same day that other inmates also resided in that cell, the
record shows that his time never overlapped with another inmate in
either cell. (See id. at 3-4.) Moreover, Plaintiff subsequently
remained in the second cell, without a cell mate, for two weeks
prior to his positive COVID-19 test. (See id. at 4.) Thus, the

16

Court should determine that no reasonable factfinder could conclude
that a policy of Defendant Kimbrough’s caused Plaintiff to move
into a cell with another detainee who had COVID.” (Docket Entry 2
at 15.)2
The foregoing record evidence undermines three of the four
allegations from the Complaint, leaving only Plaintiff’s assertion
that “[he] had over 6 cell mates and was housed in over 7 dorms
which clearly deprived [him] of the reasonable chance to exercise
social distancing.” (Id.) That allegation, by itself, does not
suffice to support a claim for deliberate indifference as a matter
of law.
First, to put that statement in context: Plaintiff resided at
the FCLEDC for approximately 17 months prior to filing the
Complaint. (Compare Docket Entry 20 at 2 (documenting Plaintiff’s

2 Given this recommended disposition, the Court need not
examine certain inmate medical records which Defendant Kimbrough
submitted under seal along with the Motion to Seal. (See Docket
Entry 22; Docket Entry 23.) To that point, the cell transfer logs
(Docket Entry 20-55) adequately demonstrate that Plaintiff did not
move into a cell with another inmate prior to his positive COVID-19
test. Thus, because the Court does not have to review the medical
records in order to resolve this aspect of the Motion for Summary
Judgment, “‘they play [no] role in the adjudicative process,”
Stafford v. Stout, No. 1:20-CV-731, 2023 WL 3006102, at *10
(M.D.N.C. Apr. 19, 2023) (citing In re Application of U.S. for an
Ord. Pursuant to 18 U.S.C. Section 2703(d), 707 F.3d 283, 290 (4th
Cir. 2013)), recommendation adopted, No. 1:20-CV-731, 2023 WL
4707182 (M.D.N.C. July 24, 2023). Consequently, “[r]ather than
wade into thorny issues of patient privacy, the Court should
instead conclude that the public right of access does not attach to
these non-adjudicative documents, deny the Motion to Seal as moot,
and direct the Clerk to remove Plaintiff's medical records (in
unredacted format at Docket Entry [23]) from the Docket.” Id.
17
arrival on May 4, 2020), with Docket Entry 2 at 1 (bearing filing
date of October 8, 2021).) In addition, Plaintiff does not allege
that he ever resided with more than one cell mate at the same time
(see id. at 15), and the record does not reflect any periods with
multiple cell mates (see Docket Entry 20-55 (documenting four-month
period where Plaintiff had no cell mate)). As such, Plaintiff
effectively maintains that the impossibility of social distancing
in a jail setting evinces deliberate indifference on the part of
Defendant Kimbrough.
“However, the inability of detainees to practice social
distancing at all times does not, without more, demonstrate that
[jail officials] have deliberately disregarded the[] risks [of
COVID-19].” Duvall v. Hogan, No. 94-CV-2541, 2020 WL 3402301, at
*14 (D. Md. June 19, 2020). To repeat, the subjective element of
a deliberate indifference claim “sets a particularly high bar to
recovery.” Iko, 535 F.3d at 241. In light of that high bar,
“[f]ailing to do the impossible doesn't evince indifference, let
alone deliberate indifference.” Swain v. Junior, 961 F.3d 1276,
1287 (11th Cir. 2020) (vacating district court injunction that

rested in part on conclusion that jail’s “inability to ensure
adequate social distancing constituted deliberate indifference”
(internal quotation marks omitted)).
Because “[s]pace constraints [in jail settings] do not allow
for the more preferable degree of social distancing that exists in
18
the community at large,” Mays v. Dart, 453 F. Supp. 3d 1074, 1095
(N.D. Ill. 2020), “there is no basis in the record to conclude that
planning for anything less than six-foot distancing between all
prisoners (and staff) at all times constitutes deliberate
indifference,” Plata v. Newsom, 445 F. Supp. 3d 557, 565 (N.D. Cal.
2020). At bottom, “[i]n this case, the undisputed summary judgment
record establishes that [Defendant Kimbrough reasonably] responded
to the COVID-19 pandemic by putting in place measures designed to
control the spread of COVID-19 in the [FCLEDC].” Horton □□□
Holloway, No. 5:20-CV-05138, 2021 WL 7185222, at *13 (W.D. Ark.
Dec. 1, 2021) (unpublished), recommendation adopted, No.
5:20-CV-5138, 2022 WL 118418 (W.D. Ark. Jan. 12, 2022)
(unpublished). Plaintiff, in failing to respond, has adduced no
material evidence to the contrary. See Custer, 12 F.3d at 416. As
a result, the Court should conclude that no reasonable fact-finder
could attribute deliberate indifference to Defendant Kimbrough in
his personal, official, or supervisory capacities as to the social
distancing-aspect of any deliberate indifference claim.’

3 Given that proposed resolution, the Court need not reach
qualified immunity as an alternative basis for granting judgment
for Defendant Kimbrough. See Brooks v. Johnson, 924 F.3d 104, 119
n.6 (4th Cir. 2019) (“recogniz[ing] the ‘special problem’ raised
when the objective qualified immunity standard is applied to an
Eighth Amendment violation that requires wrongful intent in the
form of ‘deliberate indifference’” (quoting Rish v. Johnson, 131
F.3d 1092, 1098 n.6 (4th Cir. 1997))).
19

CONCLUSION
Because the record lacks evidence from which a reasonable
fact-finder could conclude that Defendant Kimbrough exhibited
deliberate indifference to Plaintiff’s serious medical needs or
risk of harm, Defendant Kimbrough has established entitlement to
judgment as a matter of law.
IT IS THEREFORE RECOMMENDED that the Summary Judgment Motion
(Docket Entry 19) be granted, the Motion to Seal (Docket Entry
22) be denied as moot, and that the medical records (Docket Entry
23) be stricken.
This 11th day of August, 2023.

/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge

20

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10653686. Public record. Not legal advice.