PARKER v. BURRIS et al

Filing 20

MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 10/11/2013, that Defendants' Motion to Dismiss for Failure to State a Claim (Docket Entry 12 ) should be granted in part in that Plaintiff's claims against Defendant SHP and Plaintiff's negligence claims against Defendant Mills should be dismissed. (Garland, Leah)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

BILLY RAY PARKER,
Plaintiff,
v.
RICK BURRIS, et al.,
Defendants.

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1:13CV488

MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
This matter comes before the undersigned Magistrate Judge for
a recommended ruling on Defendants Sarah Mills, LPN (“Nurse Mills”)
and Southern Health Partners, Inc.’s (“SHP”) Motion to Dismiss for
Failure to State a Claim (Docket Entry 12).

For the reasons below,

the Court should grant the instant Motion in part in that the Court
should dismiss all claims against SHP and the negligence claim
against Nurse Mills.
BACKGROUND
This case began when Plaintiff filed a Complaint alleging
deprivations of his constitutional rights under 42 U.S.C. § 1983
and

negligence

in

connection

with

injuries

sustained

during

Plaintiff’s incarceration at the Stanly County Detention Center.
(Docket

Entry

1

at

8-11.)

Plaintiff’s

Complaint

names

six

Defendants: four law enforcement and corrections officers, as well
as Nurse Mills and her employer SHP, which provides health services

to inmates under a contract with Stanly County.

(Id. at 2-3.)

The

Complaint asserts that on November 10, 2011,
[u]pon [P]laintiff’s admission to the [Stanly County]
Detention Center, [Nurse] Mills noted [P]laintiff’s
[Reflexive Sympathetic Dystrophy (“RSD”)], but she failed
to note and recognize [P]laintiff’s condition as chronic
and painful so as to require control through reasonable
pain medication . . . . [and] thereafter caused
[P]laintiff’s physician-prescribed narcotic pain and
other medication to be discontinued, and to be replaced
by non-narcotic medication.
(Id. at 4.)

According to the Complaint, “[a]s a result . . .

[P]laintiff was rendered physically weak and unstable, and suffered
from withdrawal from his previous medication . . . .”

(Id.)

The

Complaint further alleges that, on November 19, 2011, because
[D]efendants failed to . . . escort [] [P]laintiff to the
non-handicapped shower, and they failed to allow him to
use the handicapped shower facility . . . . [when he]
attempt[ed] to take a shower in his unsteady and weakened
condition, . . . [P]laintiff collapsed and fell on the
wet surface area, and suffered severe injuries to his
neck and back . . . .
(Id. at 5-6.)

Plaintiff allegedly then received medical treatment

at a different location including “surgery to relieve pressure on
his spinal cord.”

(Id. at 6.)

Upon Plaintiff’s return to the Stanly County Detention Center
on February 13, 2012, he allegedly signed one form consenting to
medical treatment, but “refused to sign a different form which
contained

illegible

language,

and

which

appeared

to

possibly

release [] [D]efendants from liability for their previous actions
with regard to their custody of [] Plaintiff.”

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(Id. at 6-7.)

Plaintiff allegedly suffered another injury at the Stanly County
Detention Center on February 14, 2012, “when he collapsed and
fell,” for which he again received outside medical treatment. (Id.
at 7.) The Complaint alleges that Nurse Mills reviewed Plaintiff’s
medical

records

Subsequently,

resulting

according

to

from
the

this

treatment.

Complaint,

(Id.)

“[d]espite

having

reviewed his medical records provided, [] [D]efendants insisted
that [] [P]laintiff sign an illegible form which they represented
would grant permission to the Stanly County Detention Center staff
to view his outside medical records . . . .”
Complaint

further

states

that,

when

he

(Id.)

refused

Plaintiff’s
to

sign

the

illegible form, Defendants continued to deny him his medication for
the remainder of his confinement.

(Id.)

On February 16, 2012,

Plaintiff, “in his weakened condition and wracked with untreated
pain from his prior surgeries, injuries and medical condition,”
allegedly suffered a third fall and sustained further injuries.
(Id. at 8.)
DISCUSSION
Nurse Mills and SHP filed the instant Motion pursuant to
Federal

Rule

of

Civil

Procedure

12(b)(6),

contending

that

“Plaintiff’s cause of action for negligence against both Defendants
is

in

fact

a

‘medical

malpractice’

action”

requiring

expert

certification under North Carolina Rule of Civil Procedure 9(j).
(Docket Entry 12 at 1.) Defendants assert that both the negligence

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and § 1983 claims should be dismissed because Plaintiff did not
include such certification.

(Docket Entry 13 at 7.)1

Further,

Defendants contend that Plaintiff’s § 1983 claim against SHP fails
as a matter of law because it “improperly attempts to state a claim
against [SHP] through vicarious liability under the doctrine of
respondeat superior.”

(Id.)

Plaintiff responded in opposition,

disputing that he alleges a medical malpractice claim (Docket Entry
17 at 2-7) and asserting the validity of the § 1983 claim against
SHP because “it appears that there was a policy of SHP and the
staff of the [Stanly County] Detention Center to require inmates to
sign [an]

illegible

and

authorized” (id. at 8).

vague

form

before

Defendants replied.

any

treatment was

(Docket Entry 18.)

Plaintiff’s Negligence Claims
North Carolina Rule of Civil Procedure 9(j) “serves as a
gatekeeper,

enacted

by

the

legislature,

to

prevent

frivolous

malpractice claims by requiring expert review before filing of the
action.”

Moore v. Proper, 366 N.C. 25, 31, 726 S.E.2d 812, 817

1

Defendant’s instant Motion asserts that, based on the text
of North Carolina Rule of Civil Procedure 9(j), the Court should
dismiss “Plaintiff’s entire Complaint, not merely the causes of
action premised upon the alleged medical malpractice.” (Docket
Entry 13 at 7.) However, Defendant provides no cases to support
this assertion (see id.) and the federal district courts in North
Carolina have not recognized an obligation to dismiss related
federal claims pursuant to North Carolina Rule of Civil Procedure
9(j).
See, e.g. Estate of Williams-Moore v. Alliance One
Receivables Mgmt., Inc., 335 F. Supp. 2d 636, 641, 649-51 (M.D.N.C.
2004) (permitting federal civil rights claim to survive dismissal
of medical malpractice claim under North Carolina Rule of Civil
Procedure 9(j)).
-4-

(2012).

Medical

malpractice

“complaints

‘receive

strict

consideration by the trial judge,’ and ‘[f]ailure to include the
certification necessarily leads to dismissal.’”

Id. (quoting

Thigpen v. Ngo, 355 N.C. 198, 202, 558 S.E.2d 162, 165 (2002)).
The Fourth Circuit recently recognized that Rule 9(j) certification
constitutes

a

substantive

requirement

of

North

Carolina

law

applicable in federal court. See Littlepaige v. United States, No.
12-1367,

2013

WL

2501744,

at

*3

(4th

Cir.

June

12,

2013)

(unpublished); see also Graves v. Andrews, No. 1:12CV154, 2013 WL
1010473, at *8 (M.D.N.C. Mar. 14, 2013) (unpublished) (Beaty, J.)
(“‘Failure to comply with Rule 9(j) is ground for dismissal of a
state law medical malpractice claim filed in federal court.’”
(quoting Davis v. Jones, No. 5:12CV143RJC, 2012 WL 4959497, at *4
(W.D.N.C. Oct. 16, 2012) (unpublished))); Boula v. United States,
No. 1:11CV366, 2013 WL 1343547, at *2 (M.D.N.C. Apr. 2, 2013)
(unpublished)

(Webster,

M.J.)

(citing

numerous

decisions

from

federal district courts in North Carolina treating North Carolina
Rule of Civil Procedure 9(j) as a substantive requirement of North
Carolina law).
“In determining whether or not Rule 9(j) certification is
required, the North Carolina Supreme Court has held that ‘pleadings
have a binding effect as to the underlying theory of plaintiff’s
negligence claim.’”

Sturgill v. Ashe Mem’l Hosp., Inc., 186 N.C.

App. 624, 628, 652 S.E.2d 302, 305 (2007) (quoting Anderson v.

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Assimos, 356 N.C. 415, 417, 572 S.E.2d 101, 102 (2002)).

North

Carolina law defines a medical malpractice action as “[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).

Professional

services “means an act or service . . . involving specialized
knowledge, labor, or skill.”
Inc.,

N.C. App.

,

Horsley v. Halifax Reg’l Med. Ctr.,

, 725 S.E.2d 420, 421 (2012) (quoting

Lewis v. Setty, 130 N.C. App. 606, 608, 503 S.E.2d 673, 674
(1998)).
In the instant case, Plaintiff’s allegations concern Nurse
Mills’s - and vicariously, Defendant SHP’s - specialized knowledge
as a medical professional.

The Complaint asserts that Nurse Mills

noted Plaintiff’s RSD but nonetheless discontinued his narcotic
pain medication and replaced it with non-narcotic medication.
(Docket Entry 1 at 4.)
medication

-

specialized

in

The decision to discontinue a prescription

connection

knowledge,

as

with
an

a

rare

syndrome

individual

lacking

certification cannot prescribe medicine.

-

requires

the

proper

See, e.g., Stevenson v.

North Carolina Dept. of Corr., 210 N.C. App. 473, 476-77, 714 S.E.
2d

435,

437

(2011)

(holding

that

claim

against

physician’s

assistant who allegedly failed to correctly diagnose prisoner’s

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skin condition and treat with prescription cream required expert
certification).
Further, according to the Complaint, “[a]s a result of the
discontinuance

of

[P]laintiff’s

physician-prescribed

narcotic

medication . . . [P]laintiff was rendered physically weak and
unstable, and suffered from withdrawal . . . .”
4.)

(Docket Entry 1 at

Plaintiff’s Complaint also alleges that this “unsteady and

weakened condition” resulted in him falling and injuring himself on
three separate occasions.

(Id. at 6-8.)

Thus, the Complaint

alleges a direct causal link between Nurse Mills’s medical decision
to stop the narcotic pain medication and Plaintiff’s injuries,
supporting the conclusion that Plaintiff’s negligence claim, in
fact, seeks recovery for medical malpractice.
Plaintiff contends that his claim constitutes one for ordinary
negligence, because Nurse Mills “had knowledge of [P]laintiff’s
vulnerability, and she had a common law duty to . . . see that
precautions
[P]laintiff.”

were

taken

to

prevent

further

(Docket Entry 17 at 3.)

injury

to

the

However, the allegation

that Nurse Mills had knowledge of Plaintiff’s vulnerability depends
on an analysis of her utilization of specialized knowledge in the
provision of medical care to him.

(See Docket Entry 1 at 4-5, 7.)

For example, in a recent case considered by the Fourth Circuit,
while a hospital monitored a patient on a “falls precaution,” the
patient suffered two falls in two days.

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Littlepaige, 2013 WL

2501744, at *1.

The Fourth Circuit ruled that the complaint

sounded in medical malpractice rather than ordinary negligence and thus North Carolina Rule of Civil Procedure 9(j) applied because “[t]he complaint describe[d] the falls precaution as a
‘special

duty’

that

can

only

arise

as

a

consequence

of

the

provision of professional medical services . . . . [and] allege[d]
harm as a consequence of the ‘failure to diagnose’ and ‘failure to
treat’ [the patient].”

Id. at *4.

Such circumstances mirror the

allegations in the instant case and render distinguishable the
cases cited in Plaintiff’s Brief (Docket Entry 17 at 4-6) which do
not

involve

health

care

providers’

specialized

knowledge

or

allegations concerning diagnosis and treatment. See, e.g., Barrett
v. SSC Charlotte Operating Co., LLC, No. COA12-1271, 2013 WL
3422023, *1 (N.C. Ct. App. July 2, 2013) (unpublished) (alleging
rehabilitation facility employees dropped patient while moving him
from bed to shower chair); Allen v. County of Granville, 203 N.C.
App. 365, 365-66, 691 S.E.2d 124, 125 (2010) (alleging medical
center allowed patient to leave unsupervised despite mother’s
request to contrary); Taylor v. Vencor, Inc., 136 N.C. App. 528,
530, 525 S.E.2d 201, 203 (2000) (alleging nursing home failed to
supervise patient while smoking cigarettes).
In sum, Plaintiff’s negligence claims against Nurse Mills and
SHP constitute medical malpractice claims, which the Court should
dismiss for failure to obtain expert certification pursuant to

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North Carolina Rule of Civil Procedure 9(j). As a final matter, in
the event the Court grants Defendants’ instant Motion, Plaintiff
has requested a dismissal without prejudice.
7.)

(Docket Entry 17 at

“When acting pursuant to Rule 9(j), trial judges, with their

unique

perspective,

have

prejudice if they see fit.”
at 165.

the

discretion

to

dismiss

without

Thigpen, 355 N.C. at 202, 558 S.E.2d

For instance, the North Carolina Supreme Court upheld a

trial court’s dismissal with prejudice because that court had
granted the plaintiff her requested 120-day extension to comply
with North Carolina Rule of Civil Procedure 9(j) and she still
failed to include expert certification in her complaint.
200-01, 204, 558 S.E.2d at 164, 166.
such

aggravating

prejudice.

circumstance,

Id. at

In other cases, without any

courts

have

dismissed

without

See, e.g., Wilkes v. Lee Cnty. Nursing & Rehab. Ctr.,

LLC, No. 1:09CV505, 2010 WL 703111, at *5 (M.D.N.C. Feb. 24, 2010)
(unpublished)
Carolina Rule
refile).

(dismissing
of

without

Civil Procedure

prejudice
9(j) to

pursuant
allow

to North

plaintiff

to

In the instant case, Defendants have not articulated any

reason to effect the required dismissal with prejudice and thus the
Court should decline to do so.
Plaintiff’s Section 1983 Claims
The Fourth Circuit has conditioned liability for private
corporations under 42 U.S.C. § 1983 on the same requirements
established for municipal corporations.

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Rodriguez v. Smithfield

Packing Co, Inc., 338 F.3d 348, 355 (4th Cir. 2003).

Consistent

with that view, a respondeat superior theory cannot support such
liability as a matter of law.

Austin v. Paramount Parks, Inc., 195

F.3d 715, 728 (4th Cir. 1999).

Instead, to establish § 1983

liability for a private corporation, a plaintiff must show that “an
official policy or custom of the corporation cause[d] the alleged
deprivation of federal rights.”

Id.

At the pleadings stage, a plaintiff must allege facts to
plausibly support “a direct causal link between a [corporate]
policy or custom and the alleged constitutional deprivation.” City
of Canton, Ohio v. Harris, 489 U.S. 378, 385 (1989); see also
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“To survive a motion
to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on
its face.’

A claim has facial plausibility when the plaintiff

pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.”
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)
(internal

citations

omitted)).

Moreover,

a

plaintiff

must

plausibly allege that the policy represents “the ‘moving force’
behind a deprivation of federal rights.”

Carter v. Morris, 164

F.3d 215, 218 (4th Cir. 1999) (quoting Monell v. Dep’t of Soc.
Servs., 436 U.S. 658, 694 (1978)).

-10-

In

the

standard.
an

instant

case,

Plaintiff’s

Complaint

fails

this

Plaintiff contends that Defendants required him to sign

illegible

form

to

receive

treatment

and,

“[b]y

necessary

inference, it appears that there was a policy of SHP and the staff
of the [Stanly County] Detention Center to require inmates to sign
such

illegible

authorized.”

and

vague

form[s]

(Docket Entry 17 at 8.)

before

any

treatment

was

Plaintiff’s Complaint does

not specify which Defendant asked him to sign the form, although it
states that Nurse Mills, the Sheriff, and two corrections officers
later denied him medication and treatment “upon the pretextual
grounds that [] Plaintiff had not signed the illegible form as
presented.”
As

an

(Docket Entry 1 at 7-8.)
initial

matter,

Plaintiff’s

Complaint

provides

no

factual matter to specifically attribute the illegible form to SHP.
(See id. at 3-8.)

Moreover, the fact that someone allegedly

attempted to get Plaintiff to sign an illegible form does not
reasonably, much less necessarily, lead to an inference that SHP
had a policy requiring the signing of illegible forms.
fact

that

something

occurred

necessarily

If the mere

established

that

it

occurred pursuant to a policy, the additional requirements imposed
by Monell and its progeny would serve no purpose.
Further, even assuming SHP maintained such a policy, the
Complaint does not allege that, upon arrival, anyone at the Stanly
County Detention Center asked Plaintiff to sign such a form before

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Nurse

Mills

discontinued

his

narcotic

pain

medication,

the

purported cause of Plaintiff’s “weak and unstable” condition and
subsequent injuries.
alleges

that

(See Docket Entry 1 at 4.)

someone

at

the

Stanly

County

The Complaint

Detention

Center

presented Plaintiff with illegible forms on two separate occasions.
In the first instance,
[u]pon readmission to the [Stanly County] Detention
Center [on February 13, 2012, following Plaintiff’s first
fall], [P]laintiff signed a form on which he consented
that he be treated by the medical staff and others at the
[Stanly County] Detention Center. Plaintiff refused to
sign a different form which contained illegible language,
and which appeared to possibly release [] [D]efendants
from liability for their previous actions with regard to
their custody of [] [P]laintiff.
(Id. at 6-7.)

However, neither Plaintiff’s Complaint nor his

Response to the instant Motion contain any allegations that connect
this particular illegible form to Plaintiff’s injuries.

(See id.

at 3-8; Docket Entry 17 at 7-9.)
In the second instance, after Plaintiff had allegedly fallen
and

received

medical

treatment

a

second

time,

“[D]efendants

insisted that [] [P]laintiff sign an illegible form which they
represented would grant permission to the [Stanly County] Detention
Center staff to view his outside medical records . . . . [and]
[u]pon [] [P]laintiff’s refusal to sign the illegible form, []
[D]efendants

refused

to

give

[]

[P]laintiff

his

physician-prescribed medication, and allowed his painful condition
to continue . . . .”

(Id. at 7.)

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Here, the Complaint suggests

some connection between Plaintiff’s refusal to sign the form and
Defendants’ alleged continued resistance to providing him with
narcotic pain medication.

However, according to the Complaint,

such refusal to sign did not represent a “moving force,” Monell,
436 U.S. at 694, behind the denial to Plaintiff of narcotic pain
medication, because Defendants had been denying Plaintiff such
medication for three months before Plaintiff refused to sign either
of the illegible forms.

(See Docket Entry 1 at 3, 7.)

Plaintiff

allegedly arrived at the Stanly County Detention Center on November
10, 2011, and Defendants replaced his narcotic pain medication
shortly thereafter, but Plaintiff did not refuse to sign any
illegible form until at least February 13, 2012.

(Id.)

Ultimately, the Complaint fails to allege factual matter
establishing that a policy or custom of SHP deprived Plaintiff of
his rights. See Iqbal, 556 U.S. at 678 (“The plausibility standard
. . . asks for more than a sheer possibility that the a defendant
has acted unlawfully.”).

Therefore, the Court should dismiss

Plaintiff’s § 1983 claim against SHP.
CONCLUSION
Plaintiff has failed to state any claim against Defendant SHP
and has failed to state a claim for negligence against Defendant
Mills.

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IT IS THEREFORE RECOMMENDED that Defendants’ Motion to Dismiss
for Failure to State a Claim (Docket Entry 12) should be granted in
part

in

that

Plaintiff’s

claims

against

Defendant

SHP

and

Plaintiff’s negligence claims against Defendant Mills should be
dismissed.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
October 11, 2013

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