PARKER v. BURRIS et al

Filing 42

MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 03/31/2015. All Defendants have established grounds for relief pursuant to Federal Rule of Civil Procedure 56 (a). RECOMMENDED< /b> that Defendant Mills' Motion for Summary Judgment (Docket Entry 32 ) be granted. FURTHER RECOMMENDED that Defendants R. Burris, L. Burris, Poplin, and Hudson's Motion for Summary Judgment (Docket Entry 35 ) be granted. (Taylor, Abby)

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

Defendant

Mills’

Motion

for

Summary

Judgment (Docket Entry 32) and Defendants R. Burris, L. Burris,
Poplin, and Hudson’s Motion for Summary Judgment (Docket Entry 35).
For the reasons that follow, the Court should grant the instant
Motions.
I.

Factual Background

This case began when Plaintiff filed a Complaint alleging
deprivations of his constitutional rights under 42 U.S.C. § 1983
and state-law negligence in connection with injuries sustained
during Plaintiff’s incarceration at the Stanly County Detention
Center.

(Docket

Entry

1

at

8-11.)

The

Court

subsequently

dismissed all claims against Defendant Southern Health Partners and
the negligence claims against Defendant Sarah Mills. (Docket Entry
23.)

As a result, the surviving claims in Plaintiff’s Complaint

concern

four

Defendants

who

served

as

law

enforcement

or

corrections officers - Sherriff Rick Burris, Captain Lane Burris,
Deputy Darrin Poplin, and Lieutenant Tommy Hudson -

as well as

Nurse Mills, employed by former Defendant Southern Health Partners
to

provide

medical

care

to

inmates

at

the

Detention

Center.

(Docket Entry 1 at 2-3.) The Complaint alleges that all Defendants
acted with deliberate indifference to Plaintiff’s serious medical
conditions (namely Reflexive Sympathetic Dystrophy, or “RSD”), by
failing to provide him at all relevant times with appropriate pain
medication or to afford him access to a handicapped shower, all in
violation of the Eighth and Fourteenth Amendments of the United
States Constitution.

(Id. at 8-9.)

It further alleges, under

North Carolina law, that the negligence of the officer Defendants
in failing to provide access to a handicapped shower or assist him
in showering caused Plaintiff to suffer severe and disabling
injuries when he fell in the shower.

(Id. at 9-11; see also Docket

Entry 23.)
To support her instant Motion for Summary Judgment, Defendant
Mills filed her own affidavit (Docket Entry 34), as well as
Plaintiff’s complete medical file from his incarcerations (Docket
Entry 34-1). Similarly, the officer Defendants filed excerpts from
the deposition transcripts of various individuals involved in the
incidents,

including

those

of

all

five

surviving

Defendants.

(Docket Entries 36-4, 36-5, 36-6, 36-7, 36-8, 36-9, 36-10.)

-2-

In

response, Plaintiff submitted his own affidavit (Docket Entry 37),
related supporting documents (Docket Entries 37-1, 37-2, 37-3, 374),

and

deposition

excerpts

from

various

detention

officials

(Docket Entries 39-1, 39-2, 39-3).
The

uncontested

record

evidence

indicates

that

Plaintiff

reported to the Stanley County Detention Center on November 10,
2011, in connection with a civil contempt order.

(Docket Entry 34

at 2; Docket Entry 37 at 2.) Prior to his incarceration, Plaintiff
had been suffering from RSD in his right hand and arm, a chronic
condition which causes significant pain, particularly during flareups.

(Docket Entry 36 at 3; Docket Entry 37 at 2.)

Plaintiff

additionally suffered from hypertension, a thyroid condition, and
occasional lower-back pain from a previous surgery.
34

at

2-3;

Docket

Entry

37

at

2.)

For

(Docket Entry

these

conditions,

Plaintiff’s primary care physician had prescribed him Diazepam
(Valium), Oxycodone (for pain), Lisinopril (for hypertension), and
Liothyronine (for thyroid condition).
Docket Entry 37 at 2.)

(Docket Entry 34 at 2, 4;

Upon Plaintiff’s admission, he reported

those conditions and medications to the intake officer.
Entry 34 at 2, Docket Entry 37 at 2.)

(Docket

That evening, Detention

Center personnel apparently transferred Plaintiff from a cell
located in the general population area to one located in a separate
area, referred to as the Bubble.

(Docket Entry 37 at 4.)

-3-

The following day, Defendant Mills examined Plaintiff, and he
again reported his conditions and prescribed medications.
Entry 34 at 2; Docket Entry 37 at 2-3.)

(Docket

Defendant Mills, a

licensed practical nurse, did not have the authority to prescribe
medications; however, she administered medications to prisoners
pursuant to orders by Manuel Maldonado, a physician’s assistant, or
Dr. Laurie Bumgarner.
11-12.)

(Docket Entry 34 at 2-3; Docket Entry 38 at

Defendant Mills asked Plaintiff to sign two forms: a

Consent for Treatment Form and an Authorization for Release of
Medical Information to a Correctional Facility Form. (Docket Entry
34 at 3; Docket Entry 37 at 3.)

Plaintiff signed the first form

but declined to sign the second form, citing the illegibility of a
portion of that form.

(Docket Entry 34 at 3; Docket Entry 37 at

3.)
Defendant Mills informed Defendant that the Detention Center
maintains a policy against narcotic medications and that, as a
result, she could not administer Diazepam or Oxycodone to him,
although she would continue his other medications.
34 at 4; Docket Entry 37 at 3.)

(Docket Entry

That same day (November 11, 2011),

Mr. Maldonado placed Plaintiff on a narcotics withdrawal protocol,
under

which

he

prescribed

Plaintiff

Oxazepam (Serax), and Tramadol (Ultram).

Hydroxyzine

(Vistaril),

(Docket Entry 34 at 4;

Docket Entry 34-1 at 9-10, 15; Docket Entry 37 at 3.)

As part of

that withdrawal protocol, the nursing staff examined Plaintiff

-4-

daily from November 11 to 19, 2011.

(Docket Entry 34 at 4; Docket

Entry 34-1 at 9-10; Docket Entry 37 at 4.)

Defendant Mills

conducted daily examinations of Plaintiff from November 11 to 14,
2011; however, other nurses saw Plaintiff on the following days.
(Docket Entry 34 at 4-5; Docket Entry 34-1 9-10; see also Docket
Entry 37 at 4.)

On November 17, 2011, Mr. Maldonado apparently

reduced Plaintiff’s dosages of Hydroxyzine, Oxazepam, and Tramadol.
(Docket Entry 34 at 6; Docket Entry 34-1 at 15.)
On November 19, 2011, Plaintiff suffered a fall as he exited
the shower in the Bubble area.

(Docket Entry 34 at 7; Docket Entry

36-7 at 5-6; Docket Entry 37 at 5-6.)

Plaintiff was transported

first to nearby Stanley Regional Medical Center, then to Carolina
Medical Center in Charlotte, North Carolina, where he underwent
back surgery.

(Docket Entry 34 at 7; Docket Entry 36 at 3; Docket

Entry 37 at 6-7.)
Plaintiff

did

February 13, 2012.

not

return

to

the

Detention

Center

until

(Docket Entry 37 at 7; Docket Entry 34 at 7.)

That same day, both an intake officer and Defendant Mills performed
medical screenings during which Plaintiff reported taking Diazepam,
Oxycodone/Acetaminophen

(Endocet),

Lisinopril,

Liothyronine,

(Cytomel), Tamsulosin (Flomax, for bladder issues), and Gabapentin
(for nerve pain).

(Docket Entry 34 at 7-8; Docket Entry 34-1 at

25-30; Docket Entry 37 at 7-8.)

Defendant Mills again presented

Plaintiff with a Consent for Treatment Form and an Authorization

-5-

for Release of Medical Information to a Correctional Facility Form.
(Docket Entry 34 at 8; Docket Entry 37 at 8.)

After contacting his

attorney, Plaintiff agreed to sign the first form but elected not
to sign the second, again citing the illegibility of a portion of
that form.

(Docket Entry 34 at 8; Docket Entry 37 at 8.)

Defendant Mills reports that she consulted with Mr. Maldonado,
who prescribed only Liothyronine, Lisinopril, and Tamsulosin for
Plaintiff and, further, declined to place Plaintiff on a withdrawal
protocol.

(Docket Entry 34 at 8-9.)

Plaintiff confirms that he

received no pain medication from Detention Center officials on
either February 13 or February 14, 2012.

(Docket Entry 37 at 8.)

Plaintiff reported falling in his cell on February 14, 2012, and he
was transported to Stanley Regional Medical Center.

(Docket Entry

34 at 9; Docket Entry 37 at 8.)
Plaintiff returned to the Detention Center that same day, at
which point Defendant Mills again requested that Plaintiff sign the
records release form and Plaintiff again refused. (Docket Entry 34
at 9; Docket Entry 37 at 9.)

On February 15, 2012, after Plaintiff

reported back pain, Defendant Mills consulted with Mr. Maldonado
who ordered Acetaminophen (Tylenol) for Plaintiff.
34 at 9-10; Docket Entry 37 at 10.)

(Docket Entry

The following day, Plaintiff

reported suffering a third fall, in his cell, after which Defendant
Mills examined Plaintiff and placed him safely in bed with an extra
mattress.

(Docket Entry 34 at 10; Docket Entry 34-1 at 36, 61.)

-6-

On February 17, 2012, Defendant Mills again raised the issue of
Defendant’s pain with Mr. Maldonado, who ordered an approximately
two-week course of Acetaminophen, as well as Gabapentin.

(Docket

Entry 34 at 11; Docket Entry 37 at 10-11.)
Plaintiff repeatedly alleges that Defendant Mills and other
Detention Center personnel informed him that he would not receive
pain

medication

unless

he

signed

the

records

release

(See Docket Entry 37 at 8-10; Docket Entry 38 at 5-7.)

form.

That said,

the Parties agree - and the medical records support - that from
February 17 through at least March 2, 2012, Plaintiff received
Acetaminophen for pain, as ordered by Mr. Maldonado. (Docket Entry
34 at 11-13; Docket Entry 34-1 at 55-57; Docket Entry 37 at 10.)
The record similarly reflects that Plaintiff received Gabapentin
for nerve pain from February 17 through the remainder of his
incarceration. (Docket Entry 34 at 11-13; Docket Entry 34-1 at 5557; Docket Entry 37 at 10.)

Moreover, Defendant Mills and other

nurses continued to respond to various sick call slips submitted by
Plaintiff until his release on March 23, 2012.

(Docket Entry 34 at

11-14; Docket Entry 37 at 10-12.)
II.

Summary Judgment Standard

“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.”
P. 56(a).

Fed. R. Civ.

Such a genuine dispute exists if the evidence presented

-7-

could lead a reasonable factfinder to return a verdict in favor of
the non-moving party.

Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 255 (1986). In making this determination, the Court must view
the evidence and any reasonable inferences therefrom in a light
most favorable to the non-moving party.

Matsushita Elec. Indus.

Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
The party moving for summary judgment may discharge its burden
by identifying an absence of evidence to support the non-moving
party’s case.
(1986).

See Celotex Corp. v. Catrett, 477 U.S. 317, 325

The non-moving party then must “set forth specific facts

showing that there is a genuine issue for trial.” Matsushita Elec.
Indus.,

475

original).

U.S.

at

586-87

(citation

omitted)

(emphasis

in

In this regard, the non-moving party must convince the

Court that evidence exists upon which a finder of fact could
properly return

a

verdict

Anderson, 477 U.S. at 252.
sufficient to defeat a

in

favor

of

the

non-moving

party.

“Mere unsupported speculation is not

summary judgment motion if the undisputed

evidence indicates that the other party should win as a matter of
law.”

Francis v. Booz, Allen & Hamilton, Inc., 452 F.3d 299, 308

(4th Cir. 2006).
III.

Discussion

In support of her instant Motion, Defendant Mills contends:
(1) that Plantiff has failed to set forth evidence establishing
that

Defendant

Mills

acted

with

-8-

deliberate

indifference

to

Plaintiff’s serious medical needs to support a § 1983 claim, (2)
that Plaintiff has failed to present evidence of causation between
the alleged wrongful conduct of Defendant Mills and an actual
injury suffered by Plaintiff to support a § 1983 claim, and (3)
that qualified immunity shields Defendant Mills from liability
under § 1983.

(Docket Entry 33 at 10-15.)

Similarly, the officer

Defendants’ instant Motion argues: (1) that Plaintiff has not
forecast sufficient evidence of deliberate indifference to support
a § 1983 claim, (2) that Plaintiff has failed to show evidence of
a

policy

or

custom to

support

municipal

liability,

(3) that

qualified immunity shields the officer Defendants from liability
under § 1983, and (4) that both sovereign and public official
immunities bar Plaintiff’s negligence claim.

(Docket Entry 36 at

5-20.)
A.

Legal Background: 42 U.S.C. § 1983
i.

The “Deliberate Indifference” Standard

“[W]hen the State takes a person into its custody and holds
him there against his will, the Constitution imposes upon it a
corresponding duty to assume some responsibility for his safety and
general well-being.”

DeShaney v. Winnebago Cnty. Dep’t of Soc.

Servs., 489 U.S. 189, 199-200 (1989).

In other words, “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

-9-

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.”

Id. at 200

(emphasis added).
However, not every injury suffered by a prisoner “translates
into constitutional liability for prison officials responsible for
the victim’s safety.” Farmer v. Brennan, 511 U.S. 825, 834 (1994).
Plaintiff thus cannot maintain a constitutional claim against
Defendants merely based on allegations that they negligently failed
to

protect

him

from

an

unsafe

condition

because

“deliberate

indifference describes a state of mind more blameworthy than
negligence,” Farmer, 511 U.S. at 835.

Instead, this standard

applies:
First, a constitutional violation occurs only where the
deprivation
alleged
is
“objectively,
sufficiently
serious.”
For a claim based on a failure to prevent
harm, a [plaintiff] must show that he [was] detained or
incarcerated “under conditions posing a substantial risk
of serious harm.” . . . Second, an official must have
“a
sufficiently
culpable
state
of
mind.”
In
prison[/jail]-conditions cases, the requisite state of
mind is “deliberate indifference.”
Brown v. Harris, 240 F.3d 383, 388-89 (4th Cir. 2001) (quoting
Farmer, 511 U.S. at 834) (internal citations and secondary internal
quotation marks omitted) (emphasis added).
Similarly, as to claims based on denial of medical care,
Plaintiff

“must

demonstrate

that

the

[officials]

acted

with

‘deliberate indifference’ (subjective) to the inmate’s ‘serious

-10-

medical needs’ (objective).” Iko v. Shreve, 535 F.3d 225, 241 (4th
Cir.

2008).

“Beginning

with

the

objective

component,

a

serious . . . medical need is one that has been diagnosed by a
physician as mandating treatment or one that is so obvious that
even a lay person would easily recognize the necessity for a
doctor’s attention.”

Id.

As to the second prong, “[d]eliberate

indifference is a very high standard [and] a showing of mere
negligence will not meet it.”
(4th Cir. 1999).

Grayson v. Peed, 195 F.3d 692, 695

Instead, the “deliberate indifference” prong

requires Plaintiff to make “two showings”:
First, the evidence must show that the official in
question subjectively recognized a substantial risk of
harm. It is not enough that the [official] should have
recognized it; [he] actually must have perceived the
risk. Second, the evidence must show that the official
in question subjectively recognized that his actions were
inappropriate in light of that risk.
As with the
subjective awareness element, it is not enough that the
official should have recognized that his actions were
inappropriate; the official actually must have recognized
that his actions were insufficient.
Parrish ex rel. Lee v. Cleveland, 372 F.3d 294, 303 (4th Cir. 2004)
(internal citations and quotation marks omitted) (emphasis in
original). “The subjective component therefore sets a particularly
high bar to recovery.”

Iko, 535 F.3d at 241.

“[A]s a consequence,

many acts or omissions that would constitute medical malpractice
will not rise to the level of deliberate indifference.” Jackson v.
Lightsey,

775

“disagreement[s]

F.3d

170,

between

178
an

(4th

inmate

-11-

Cir.
and

a

2014).

Moreover,

physician

over

the

inmate’s proper medical care . . . fall short of showing deliberate
indifference. Id. (internal quotation marks and brackets omitted).
ii.

Qualified Immunity from § 1983 Claims

“Qualified immunity from § 1983 claims ‘protects government
officials from liability for civil damages insofar as their conduct
does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known.’”

Doe ex

rel. Johnson v. South Carolina Dep’t of Soc. Servs., 597 F.3d 163,
169 (4th Cir. 2010) (quoting Pearson v. Callahan, 555 U.S. 223, 231
(2009)) (some internal quotation marks omitted).

Put simply,

qualified immunity “ensures that officials are not unfairly strung
up for money damages as a result of bad guesses in gray areas [and]
[i]t encourages capable citizens to join the ranks of public
servants by removing the threat of constant litigation.”

Braun v.

Maynard, 652 F.3d 557, 560 (4th Cir. 2011) (internal citation and
quotation marks omitted).

Accordingly, “[q]ualified immunity is

‘an immunity from suit rather than a mere defense to liability.’”
Pearson, 555 U.S. at 236 (quoting Mitchell v. Forsyth, 472 U.S.
511, 526 (1985)).
involves a

“Determining whether qualified immunity applies

two-prong

inquiry:

‘whether

the

facts

make

out a

violation of a constitutional right’ and ‘whether the right at
issue was ‘clearly established’ at the time of defendant’s alleged
misconduct.’”

West v. Murphy, 771 F.3d 209, 213 (4th Cir. 2014)

(quoting Pearson, 555 U.S. at 232 (internal ellipsis omitted)).

-12-

Defendants’ instant Motions, however, only address the first
prong of the qualified immunity analysis: that is, the qualified
immunity arguments refer to the lack of evidence supporting a
constitutional violation; said Motions do not meaningfully analyze
whether the right in question qualifies as clearly established
(without regard to whether a violation actually occurred).
Docket Entry 33 at 15; Docket Entry 36 at 18-20.)

(See

For that reason,

the assessment of whether Defendants enjoy qualified immunity
merges with the analysis of the viability of Plaintiff’s § 1983
claim.
iii.

Policy or Custom Requirement to Support Local
Government Liability under § 1983

“[N]ot every deprivation of a constitutional right will lead
to municipal liability.

Only in cases where the municipality

causes the deprivation through an official policy or custom will
liability attach.”
2003)

(internal

Lytle v. Doyle, 326 F.3d 463, 471 (4th Cir.

quotation

marks

omitted).

Furthermore,

for

purposes of § 1983, a suit against a sheriff in his official
capacity constitutes a suit against a local governmental entity,
i.e., a sheriff’s office.

See Gantt v. Whitaker, 203 F. Supp. 2d

503, 508 (M.D.N.C. 2002).
Here, because Plaintiff’s Complaint contains no allegations
concerning

Defendant

R.

Burris’s

personal

involvement

in

any

deprivation of Plaintiff’s constitutional rights (see Docket Entry
1 at 3-8), Plaintiff must set forth evidence that his alleged
-13-

constitutional deprivations occurred pursuant to an official policy
or custom to recover against Defendant R. Burris in his official
capacity as the Stanly County Sheriff, see Carter v. Morris, 164
F.3d 216, 218 (4th Cir. 1999).

Such liability may arise:

(1) through an express policy, such as a written
ordinance or regulation; (2) through the decisions of a
person with final policymaking authority; (3) through an
omission, such as a failure to properly train officers,
that manifests deliberate indifference to the rights of
citizens; or (4) through a practice that is so persistent
and widespread as to constitute a custom or usage with
the force of law.
Lytle, 326 F.3d at 471.

“Thus, a plaintiff cannot rely upon

scattershot accusations of unrelated constitutional violations
. . . . Instead, a ‘plaintiff must demonstrate that a municipal
decision reflects deliberate indifference to the risk that a
violation of a particular constitutional . . . right will follow
the decision.’”

Carter, 164 F.3d at 218 (quoting Board of Cnty.

Comm’rs v. Brown, 520 U.S. 397, 405 (1997)).
B.

Defendant Mills
In moving for summary judgment, Defendant Mills principally

contends that Plaintiff has failed to forecast evidence supporting
a finding that she acted with a sufficiently culpable state of
mind, that is, with deliberate indifference to Plaintiff’s medical
needs.

(Docket Entry 33 at 10-11.)

Defendant Mills does not

dispute that Plaintiff’s RSD and post-surgery back pain constituted
objectively serious medical conditions.

(Id. at 10-14.)

Instead,

the instant Motion asserts that the undisputed evidence forecloses
-14-

a finding of deliberate indifference because it “establishes that
Plaintiff

received

extensive

medical

treatment

and

was

appropriately treated for his medical conditions and complaints.”
(Id. at 11.)
In

opposing

summary

judgment,

Plaintiff

contends

that

“[Defendant] Mills improperly conditioned treatment of [Plaintiff]
on whether he would sign the Records Release . . . [because] [a]
jury could find that conditioning his pain medication in such a
manner is deliberate indifference.”

(Docket Entry 38 at 10-11.)1

As an initial matter, the fact that, as a nurse, Defendant Mills
cannot prescribe medication, undercuts Plaintiff’s assertion that
her alleged inaction in regards to pain medicine amounted to
deliberate indifference.
Partners,

Inc.,

No.

See, e.g., Manley v. Southern Health

5:14–cv–111–FDW,

2014

WL

5509183,

at

*2

(W.D.N.C. Oct. 31, 2014) (unpublished) (“[T]he Court finds that
Plaintiff has failed to state a claim of deliberate indifference
against the defendant nurses because by his own admission, the

1

Plaintiff appears to concede a lack of deliberate
indifference on the part of Nurse Mills as to his first period of
incarceration by only asserting violations of his rights stemming
from the period of incarceration which began on February 14, 2012.
(See Docket Entry 38 at 8-14.) Moreover, the undisputed evidence
- particularly Defendant Mills’ absence from the Detention Center
on the day Plaintiff fell in the shower (see Docket Entry 34 at 6;
Docket Entry 37 at 4) - does not support a finding of causation
between any act or omission of Defendant Mills and injuries
sustained by Plaintiff during that first period of incarceration.
-15-

nurses believed that they could not provide him with the medication
until they were authorized to do so by an unnamed doctor.”)
In recognition of that limitation, Plaintiff argues that,
after Plaintiff refused to sign the records release, Defendant
Mills failed to communicate critical information to Mr. Maldonado,
who in turn failed to properly follow the hospital discharge
instructions providing for appropriate pain medication.

(See

Docket Entry 38 at 10-12.) In that regard, Plaintiff contends that
“[n]one of the evidence shows that [Defendant] Mills communicated
to her supervising nurse or physician assistant any information
regarding [Plaintiff’s] severe pain, or that she suggested that any
pain meddication [sic] be allowed.”

(Id. at 12.)

However, Plaintiff’s medical records show that Defendant Mills
consulted

with

Mr.

Maldonado

concerning

pain

medication

for

Plaintiff on both February 15 and 17, 2012, and that Mr. Maldonado
ordered

Acetaminophen

and

Gabapentin

as

a

result

of

those

consultations. (See Docket Entry 34-1 at 15, 59.) Consistent with
the foregoing, Plaintiff’s affidavit acknowledges his receipt of
those same pain medications on the same dates. (Docket Entry 37 at
10.)

Thus, the undisputed evidence suggests that Defendant Mills

communicated relevant medical information to Mr. Maldonado in an
effort to alleviate Plaintiff’s pain.

Simply put, without regard

to any insistence by Defendant Mills that Plaintiff sign a records
release, to the purported illegibility of such form, or to access

-16-

Defendant Mills possessed to Plaintiff’s records notwithstanding
his refusal to sign, the undisputed evidence shows that Defendant
Mills continued to provide medical treatment to Plaintiff despite
his ongoing refusal to sign the release.
Furthermore, even assuming that Defendant Mills failed to
communicate critical information to Mr. Maldonado, numerous federal
courts have determined that, absent evidence of malicious purpose,
the failure of prison medical personnel to provide pain medication
of sufficient strength does not constitute deliberate indifference.
See, e.g., Weigher v. Prison Health Servs., 403 F. App’x 668, 670
(3d Cir. 2010) (“[Absent] evidence that [doctor] purposefully
prescribed ineffective [pain] medication . . . the claim more
closely resembles one of negligence as opposed to deliberate
indifference.”); Jacobs v. McVea, Civ. A. No. 14–552, 2014 WL
2894286, at *7 (E.D. La. June 25, 2014) (unpublished) (“While it is
evident that plaintiff was unhappy with the over-the-counter pain
medication, a prisoner has no right to be prescribed a particular
medication for pain, and the fact that he disagrees with the prison
medical staff concerning which pain medication is appropriate is
not actionable under § 1983.”); Feder v. Sposato, No. 11–CV–193,
2014 WL 1801137, at *9 (E.D.N.Y. May 7, 2014) (unpublished) (“[T]he
failure to provide stronger pain medication does not constitute
deliberate indifference.”); Starling v. United States, 664 F. Supp.
2d 558, 570-71 (D.S.C. 2009) (concluding that allegations of

-17-

“ignoring specialist’s recommendations, dispensing inferior pain
medication, and refusing prescribed treatment” on part of doctor
did not establish deliberate indifference); cf., Gil v. Reed, 381
F.3d 649, 662-64 (7th Cir. 2004) (concluding that prison doctor’s
decision

to

substitute

Codeine/Acetaminophen

for

specialist’s

recommendation of Hydrocodone/Acetaminophen, despite specialist’s
warning of particular health risks to inmate presented by Codeine,
could support finding of deliberate indifference).
Although Plaintiff alleges that Defendant Mills acted in bad
faith by conditioning his receipt of medication on signing the
records release (see Docket Entry 38 at 10-1), Plaintiff offers no
evidence to support the view that, had Plaintiff signed the form,
Mr. Maldonado would have ordered different medications (see id. at
8-12).
well

as

The prison’s policy against narcotic pain medication, as
Defendant

Mills’

inability

to

prescribe

medications,

further undermine the argument that the decision to prescribe a
less effective pain medication evinces malice on the part of
Defendant Mills.

Given that Plaintiff acknowledges his daily

receipt of some form of pain medication (whether Acetaminophen,
Gabapentin, or both) from February 15, 2012, through the remainder
of his incarceration (with the exception of February 16, 2012), his
claim against Defendant Mills amounts to a disagreement over the
proper course of medical care that does not rise to the level of
deliberate indifference.

-18-

Furthermore, as to Defendant Mills’ argument concerning the
absence of causation or actual injury, because Plaintiff has failed
to

set

forth

evidence

to

support

a

finding

of

deliberate

indifference on the part of Defendant Mills, Plaintiff has also
failed to establish causation or injury.

Finally, as discussed

above in Section III.A.ii, the absence of evidence supporting a
finding that a constitutional violation occurred satisfies the
first prong of the qualified immunity analysis and, thus, Defendant
Mills also enjoys qualified immunity.

In sum, the Court should

grant summary judgment for Defendant Mills.
C.

Officer Defendants
i.

Section 1983 Claim

Defendants R. Burris, L. Burris, Poplin, and Hudson move for
summary judgment as to Plaintiff’s § 1983 claim on the basis that
the forecast of evidence does not support a finding of deliberate
indifference.

(Docket Entry 36 at 9-13.)

The officer Defendants

further contend that, because no constitutional violation occurred,
they enjoy qualified immunity. (Id. at 18-20.) Finally, Defendant
R. Burris, the Stanly County Sheriff, asserts the absence of an
identified policy or custom, necessary to support his liability
under § 1983.

(Id. at 14-18.)

Plaintiff opposes summary judgment because “there is evidence
from which a reasonable jury could conclude that the Defendants
acted

with

deliberate

indifference

-19-

by

failing

to

provide

appropriate shower facilities or an escort to the shower facilities
and

by

However,

withholding

medical

Plaintiff’s

care.”

argument

(Docket

almost

Entry

39

exclusively

at

1.)

addresses

Defendant R. Burris’s contention that Plaintiff has not named a
policy or custom to support liability against him.
13.)2

In

that

regard,

Plaintiff

has

(See id. at 9-

identified

“[t]he

custom/practice of inmates with health needs using non-handicapped
shower facilities and Jail staff not escorting or adequately
observing shower areas” (id. at 10) and “[t]he custom/practice of
withholding health care when prisoners refuse to sign non-HIPAA
compliant forms” (id. at 11).
Plaintiff, however, has not forecast evidence to reasonably
support a finding that any officer Defendant acted with deliberate
indifference toward Plaintiff’s serious medical needs.

In that

regard, although Plaintiff’s brief, in its discussion of policy or
custom, appears to assert that the officer Defendants had knowledge
of Plaintiff’s medical needs and nonetheless failed to provide him
with a safe shower facility, or in the alternative, escort him to
the shower (id. at 10-11), Plaintiff’s brief fails to identify any
evidence in the record sufficient to establish that Defendants L.
Burris, Poplin, or Hudson possessed the requisite state of mind to

2

It also briefly addresses the issue of qualified immunity,
but does not set forth evidence to support the position that the
officer Defendants acted with deliberate indifference. (See Docket
Entry 39 at 9-13.)
-20-

support a finding of deliberate indifference (see id. at 4, 10-11).
In fact, beyond general assertions that Defendants should have
known of his medical needs based on his daily trips to the medical
office (see id. at 3-4), Plaintiff has not pointed to any evidence
that Defendants L. Burris, Poplin, or Hudson actually knew of
Plaintiff’s medical conditions or of his wish to use a handicapped
shower prior to his fall on November 19, 2011 (see id. at 1-14).
As a matter of law, the officer Defendants cannot have recognized
the insufficiency of their actions without perceiving a risk of
harm to Plaintiff, as required to support a finding of deliberate
indifference.

See Parrish, 372 F.3d at 303.

Plaintiff’s brief further appears to assert that the officer
Defendants

acted

with

deliberate

medical care from Plaintiff.

indifference

by

withholding

(Docket Entry 39 at 11-12.)

“‘If a

prisoner is under the care of medical experts, a nonmedical prison
official will generally be justified in believing that the prisoner
is in capable hands.’”

Iko, 535 F.3d at 242 (quoting Spruill v.

Gillis,

(3d

372

F.3d

constitutional

218

Cir.

claim against

2004)).

non-medical

“To

bring

prison

[such]

a

personnel, an

inmate must show that such officials were personally involved with
a denial of treatment, deliberately interfered with a prison
doctor’s treatment, or tacitly authorized or were indifferent to
the

prison

physician’s

misconduct.”

Krug

v.

Loranth,

No.

1:13CV1409–DCN, 2014 WL 4955365, at *7 (D.S.C. Sept. 29, 2014)

-21-

(unpublished) (citing Miltier v. Beorn, 896 F.2d 848, 854 (4th Cir.
1990), overruled on other grounds, Farmer, 511 U.S. 825).

Simply

put, Plaintiff has not set forth evidence of any circumstances of
that nature to support the position that the officer Defendants
acted with deliberate indifference with regard to Plaintiff’s
receipt of medication.3
Moreover, Plaintiff’s theory of recovery against Defendant R.
Burris fails because, without regard to Plaintiff’s identification
of a policy or custom, Plaintiff cannot recover under § 1983
without

setting

forth

evidence

to

support

a

constitutional

violation resulting from that policy or custom. See, e.g., Jackson
v. Pena, 28 F. Supp. 3d, 423 432-34 (D. Md. 2014) (dismissing
§ 1983 claim against police department where plaintiff “failed to
satisfy the prerequisite to a sufficient allegation of [municipal]
liability - that his constitutional rights were violated by the
[police department’s] employees.”).

However, even assuming that

Plaintiff had established an underlying constitutional violation,
the practices described by Plaintiff do not qualify as a policy or
custom for purposes of § 1983.

3

Plaintiff suggests that the officer Defendants acted with
deliberate indifference by conditioning medical treatment for
Plaintiff on his signing of the records release. (See Docket Entry
39 at 11-12.) That contention lacks merit. As discussed above
with respect to Defendant Mills in Section III.B, no record
evidence supports the view that any prison officials actually
denied Plaintiff necessary treatment as a result of Plaintiff’s
refusal to sign the records release.
-22-

First, Plaintiff asserts that the Detention Center maintained
a

“custom

and

practice

of

providing

non-handicapped

facilities to inmates who had heightened medical issues.”
Entry 39 at 11.)
widespread

nature

shower
(Docket

Plaintiff thus contends that the consistent and
of

such

practice

qualifies

sufficient to support municipal liability.

it

as

a custom

(Id. at 11.)

In that

regard, Plaintiff states that the Detention Center sometimes housed
inmates with health issues in the Bubble, that the Bubble had an
non-handicapped shower only, that guards never allowed Plaintiff to
use a different shower, and that guards could not recall ever
escorting an inmate to the shower.

(See id. at 10-11.)

Of course,

Plaintiff’s statements do not establish that the Detention Center
has ever denied another inmate access to a handicapped shower and
Plaintiff’s own citations to the record support the contrary
position that officials had not previously confronted the issue
(see Docket Entry 39-1 at 3-5; Docket Entry 39-3 at 2-4).

Given

that Plaintiff has not identified any instance outside his own
experience regarding any routine denial of handicapped shower
facilities to inmates in need of such facilities, his statements
fall short of establishing a persistent and widespread practice.
See Lytle, 326 F.3d at 473 (“It is well settled that isolated
incidents of unconstitutional conduct by subordinate employees are
not sufficient to establish a custom or practice for § 1983
purposes.” (internal quotation marks omitted)).

-23-

Second, Plaintiff contends that the Detention Center follows
a “custom/practice of withholding health care when prisoners refuse
to sign non-HIPAA compliant forms.”

(Docket Entry 39 at 11.)

That

contention fails, however, because Plaintiff provides no evidence
that such conduct occurred more than once.

See Lytle, 326 F.3d at

473. Further, Plaintiff undermines his argument by admitting that,
“[w]hen [Plaintiff] was first incarcerated at the Jail, his access
to medical care was not contingent on whether or not he had signed
a[] [release].”

(Docket Entry 39 at 11.)

That Plaintiff himself

did not experience a consistent application of the purported custom
confirms the absence of proof of a persistent and widespread
practice equivalent to a policy.
As a final matter, as with Defendant Mills, because Plaintiff
has failed to set forth evidence that a constitutional violation
actually occurred, the officer Defendants also enjoy qualified
immunity from suit under § 1983.

For these reasons, the Court

should grant summary judgment for the officer Defendants as to
Plaintiff’s § 1983 claim(s).
ii.

Negligence Claim

To make out a negligence claim under North Carolina law, a
plaintiff must show: “(1) a legal duty; (2) a breach thereof; and
(3) injury proximately caused by the breach.”

Stein v. Asheville

City Bd. of Educ., 360 N.C. 321, 328, 626 S.E. 2d 263, 267 (2006).
However, under North Carolina law, “[i]t is a fundamental rule that

-24-

sovereign immunity renders this state, including counties and
municipal corporations therein, immune from suit absent express
consent to be sued or waiver of the right of sovereign immunity.”
Data Gen. Corp. v. County of Durham, 143 N.C. App. 97, 100, 545
S.E.2d 243, 246 (2001).

Sovereign immunity “also bars actions

against public officials sued in their official capacity.” Beck v.
City of Durham, 154 N.C. App. 221, 229, 573 S.E.2d 183, 190 (2002).
Similarly, “it is settled [under North Carolina law] that a public
official,

engaged

in

the

performance

of

governmental

duties

involving the exercise of judgment and discretion, may not be held
personally

liable

for

mere

negligence

in

respect

thereto.”

Isenhour v. Hutto, 350 N.C. 601, 609, 517 S.E.2d 121, 127 (1999)
(internal quotation marks omitted).
Although “a municipality may waive its [sovereign] immunity
for civil liability in tort for negligent or intentional damage by
purchasing liability insurance, [it does so] only to the extent of
the insurance coverage.”

Estate of Earley ex rel. Earley v.

Haywood Cnty. Dep’t of Soc. Servs., 204 N.C. App. 338, 341, 694
S.E.2d 405, 408 (2010).

Therefore, where a municipality maintains

insurance coverage that excludes liability for claims barred by
sovereign immunity, that municipality has not waived its sovereign
immunity.
The

Id. at 342-43, 408-09.
officer

Defendants

move

for

summary

judgment

as

to

Plaintiff’s state-law negligence claim by asserting that sovereign

-25-

immunity bars any such official-capacity claim and that public
officials

immunity

bars

any

(Docket Entry 36 at 5-9.)

such

individual-capacity

claim.

In opposing summary judgment, Plaintiff

does not contest that the officer Defendants enjoy sovereign and
public officials immunities from suit for state-law negligence.
(See Docket Entry 39 at 1-14.) In fact, Plaintiff’s brief makes no
mention of his negligence claim.

(See id.)

Moreover, the record before the Court supports the position
that those protections apply and render the officer Defendants
immune from suit for state-law negligence in either their official
or individual capacities.

In particular, the officer Defendants

have provided a copy of Stanly County’s liability insurance policy
which includes a Sovereign Immunity Non-Waiver Endorsement.
Docket Entry 36-2 at 12.)

(See

Under these circumstances, the Court

should grant summary judgment for the officer Defendants as to
Plaintiff’s negligence claim.
IV.

Conclusion

All Defendants have established grounds for relief pursuant to
Federal Rule of Civil Procedure 56(a).
IT IS THEREFORE RECOMMENDED that Defendant Mills’ Motion for
Summary Judgment (Docket Entry 32) be granted.

-26-

IT IS FURTHER RECOMMENDED that Defendants R. Burris, L.
Burris, Poplin, and Hudson’s Motion for Summary Judgment (Docket
Entry 35) be granted.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
March 31, 2015

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