SIMMONS et al v. CORIZON HEALTH, LLC et al
Filing
35
MEMORANDUM OPINION and ORDER signed by JUDGE THOMAS D. SCHROEDER on 8/4/2015. ORDERED that Corizon's motion to dismiss (Doc. 25 ) is GRANTED as to Plaintiffs' negligence per se claim (Count IV); and 33 DENIED as to Plaintiffs' 167; 1983 claim (Count II) and request for punitive damages (Count VI). FURTHER ORDERED that Guilford Defendants' motion to dismiss (Doc. 28 ) is GRANTED as to Plaintiffs' Fourteenth Amendment claim under § 1983 against Guilford C ounty and Sheriff Barnes (Count I), Plaintiffs' State law claims against Guilford County (Counts III and V); and Plaintiffs State law claims against Sheriff Barnes (Counts III and V) to the extent those claims will be limited to recovery up to and including $25,000; and DENIED as to Plaintiffs' Eighth Amendment claims under § 1983 against Guilford County and Sheriff Barnes in his official capacity (Count I). (Butler, Carol)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
GLENDA S. SIMMONS, as Guardian
and Conservator of Bryan
O’Neil Simmons, CALVIN C.
SIMMONS, as Guardian and
Conservator of Bryan O’Neil
Simmons, BRYAN O’NEIL SIMMONS,
and TIFFANY SIMMONS,
Plaintiffs,
v.
CORIZON HEALTH, INC., CORIZON,
LLC, B.J. BARNES, in his
official capacity as Sheriff
of Guilford County, North
Carolina, GUILFORD COUNTY, and
THE LOCAL GOVERNMENT EXCESS
LIABILITY FUND, INC.,
Defendants.
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1:14cv730
MEMORANDUM OPINION AND ORDER
THOMAS D. SCHROEDER, District Judge.
Plaintiffs Glenda, Calvin, Bryan, and Tiffany Simmons bring
suit
against
Defendants
Corizon
Health,
Inc.,
Corizon,
LLC
(collectively “Corizon”); B.J. Barnes, Sheriff of Guilford County,
Guilford County (the “County”), and the Local Government Excess
Liability
Fund,
Defendants”),
for
Inc.
(“LGELF”)
alleged
(collectively
violations
of
Bryan
“Guilford
Simmons’
constitutional rights pursuant to 42 U.S.C. § 1983, as well as for
violations of North Carolina law.
Before the court are two
motions: (1) all Defendants move to dismiss several of Plaintiffs’
claims pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure; and (2) the Guilford Defendants also move to dismiss
several
claims
12(b)(2).
pursuant
to
Federal
Rule
of
Civil
Procedure
For the reasons set forth below, the motions will be
granted in part and denied in part.
I.
BACKGROUND
The allegations of the amended complaint, viewed in the light
most favorable to Plaintiffs, as nonmoving parties, are as follows:
The County contracted with Corizon to provide medical care to
inmates housed in the County jail.
(Doc. 20 ¶ 100.)
Under the
contract, Corizon was to provide “24 hour emergency medical care,
7 days a week to all inmates,” “meet or exceed the written
directives of the Guilford County Health Services Director,” and
“meet or exceed” the standards of the National Commission on
Correctional Health Care (“NCCHC”).
(Id. ¶¶ 101–03.)
Plaintiffs
allege that Corizon violated multiple provisions of the contract
and the NCCHC standards.
(Id. ¶¶ 104–10.)
They further allege
that, under the contract, Corizon was obligated to pay for the
cost of any hospital care inmates received.
(Id. ¶ 68.)
On September 4, 2012, Bryan Simmons (hereafter “Bryan”) was
incarcerated in the County jail on a probation violation with a
release date of December 3, 2012. (Id. ¶ 2.) In November, however,
he began complaining about severe stomach pain, constipation, a
distended stomach, and vomiting blood.
2
(Id. ¶ 4.)
Bryan made
both the jailers and Corizon’s medical staff aware of his medical
complaints, and his bloody vomit was readily apparent to “the
Defendants.”
(Id. ¶ 43.)
On November 22, 2012, Corizon nurses
took a sample of Bryan’s blood, sent it to a laboratory for
testing, and administrated certain laxatives.
(Id. ¶ 48.)
The
results were received on or before November 24, 2012, and showed
indications of intestinal bleeding and renal failure, but they
were not reviewed by Corizon’s jail physician until December 4,
2012.
(Id. ¶¶ 49–51, 105.)
Bryan’s condition worsened after November 22.
On November
24, he was found unconscious on the floor of his cell with blood
on his clothing and the floor.
(Id. ¶ 54.)
Sometime around this
occurrence, he requested to be seen at a hospital, but Corizon
staff denied his request.
(Id. ¶ 55.)
On November 30, his medical
records document that he complained of sharp abdominal pain and
shortness of breath.
(Id. ¶ 57.)
At some point, the medical
records also documented “the vomiting of blood, decreased urine
output and no bowel movements for two weeks.”
received
some
medication
following
provided it is not disclosed.
his
(Id. ¶ 56.)
complaints,
Bryan
but
who
(Id. ¶ 57.)
On December 1, an inmate called Bryan’s parents on his behalf
because he was too sick to come to the phone.
(Id. ¶ 58.)
The
inmate told his parents that he had collapsed on the floor the
night before and urinated on himself.
3
(Id.)
Later that day, Bryan
was transferred to a “suicide watch” cell after a Corizon nurse
and a jailer reported his having a bloody rag in his mouth and
trying to “kill himself due to the pain he was experiencing.”
¶ 63.)
(Id.
That night (December 1), Corizon nurses observed Bryan
with bloody vomit on his face but told him that no hospitalization
was required.
(Id. ¶ 64.)
At some point around that time, he was
placed in a wheelchair by an unspecified person because he “was
unable to stand or walk without assistance.”
(Id. ¶ 67.)
Throughout the night of December 1 and the early morning of
December
2,
Bryan
told
County
experiencing great stomach pain.
detention
officers
(Id. ¶¶ 75–77.)
he
was
At one point in
the early morning hours, he told a County detention officer of the
pain in his stomach and groin and said he believed he was “bleeding
on the inside.” (Id. ¶ 69.) At approximately 1:59 a.m. on December
2, a Corizon nurse checked on him.
(Id. ¶ 78.)
Bryan told the
nurse, “I’m bleeding on the inside . . . I can feel it churning.”
(Id.)
The Corizon nurse informed him that the doctor had been
told about him but that only a doctor could send him to the
hospital.
(Id. ¶ 80.)
Bryan continued to tell the nurse he was
“bleeding on the inside” and said that he had been throwing up
blood for days.
(Id. ¶¶ 81–82.)
When asked by the Corizon nurse
how many days he had been vomiting blood, Bryan responded, “About
four.”
(Id. ¶ 82.)
The Corizon nurse told Bryan either “Survive
that thing now” or “Survive the day now,” followed by, “You’ll be
4
alright.”
(Id.)
During the same visit, and with blood covering
the floor of Bryan’s cell, the Corizon nurse purportedly observed,
“[T]his is not fresh blood,” and went on to add, “Old blood . . .
probably from the gastric.”
(Id. ¶ 85; see also id. ¶ 78 (alleging
that deputies cleaned the cell floor of vomited blood while the
Corizon nurse was in Bryan’s cell).)
The Corizon nurse concluded,
“[U]lcer probably.” (Id. ¶ 85.) Bryan received no further medical
care and was not provided a physician consultation.
(Id. ¶ 86.)
On the afternoon of December 2, Bryan again collapsed while
being escorted to a cell in the medical ward.
thereafter,
he
went
into
cardiac
arrest
internal bleeding from a perforated ulcer.
(Id. ¶ 89.)
caused
Shortly
by
excessive
(Id. ¶ 91.)
According
to Plaintiffs, no one at the prison administered oxygen, as was
required
“under
Director,”
and
the
arrangement
thirty-four
with
minutes
the
elapsed
County’s
Health
between
Bryan’s
collapse and the time “medical personnel” administered oxygen.
(Id. ¶ 94.) Unspecified persons, however, did “eventually” perform
CPR on him.
(Id. ¶ 97.)
But “[d]ue to the lack of oxygen to his
brain, [Bryan] suffered a catastrophic hypoxic brain injury.”
(Id.)
Sadly, he remains “in a permanent vegetative state.”
(Id.
¶ 99.)
Plaintiffs allege that Corizon had a policy or custom “to
outright deny medical treatment or be deliberately indifferent to
the serious medical needs of” inmates at the County jail.
5
(Id.
¶ 135.)
They allege that this policy caused Bryan’s current
medical conditions.
(Id. ¶¶ 106, 136.)
On August 26, 2014, Plaintiffs filed a complaint in this
court, naming the current Defendants plus the Guilford County
Sheriff’s Office.
(Doc. 2.)
On November 4, 2014, Plaintiffs
voluntarily dismissed the Sheriff’s Office.
(Doc. 19.)
The next
day, Plaintiffs filed an amended complaint, which raises six causes
of action: (1) a claim under 42 U.S.C. § 1983 against the County
and Sheriff B.J. Barnes in his official capacity; (2) a § 1983
claim against Corizon; (3) a State law negligence claim against
all Defendants; (4) a State law negligence per se claim against
Corizon; (5) a State law loss of consortium claim against all
Defendants; and (6) a “claim” for punitive damages against Corizon.
(Doc. 20.)
Corizon now moves to dismiss the amended complaint for failure
to state a claim (Doc. 25), and the Guilford Defendants also move
to dismiss for lack of personal jurisdiction and for failure to
state a claim (Doc. 28).
Both motions have been fully briefed and
are ready for consideration.
II.
ANALYSIS
A.
Standard of Review Under Rule 12(b)(6)
Federal Rule of Civil Procedure 8(a)(2) provides that a
complaint must contain a short and plain statement of the claim
showing that the pleader is entitled to relief.
6
Under Federal
Rule
of
Civil
Procedure
12(b)(6),
“a
complaint
must
contain
sufficient factual matter . . . 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)).
A claim is plausible “when the plaintiff pleads factual
content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.”
Id.
(citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)).
Conclusory pleadings are “not entitled to the assumption of truth,”
id. at 679, and mere “‘labels and conclusions’ or ‘a formulaic
recitation of the elements of a cause of action will not do,’” id.
at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007)).
A Rule 12(b)(6) motion to dismiss “challenges the legal
sufficiency of a complaint considered with the assumption that the
facts alleged are true.”
Francis v. Giacomelli, 588 F.3d 186, 192
(4th Cir. 2009) (internal citations omitted).
B.
Corizon’s Motion to Dismiss
1.
Negligence Per Se Claim Against Corizon
Corizon first contends that Plaintiffs’ negligence per se
claim fails because it is not predicated on the violation of a
statute or ordinance.
premised
on
violations,
Plaintiffs counter that their claim is
allegations
specifically
of
both
Corizon’s
contractual
contractual
and
duty
statutory
to
follow
certain healthcare standards and two statutory provisions — N.C.
7
Gen. Stat. §§ 153A-224(b) and 153A-225.
(Doc. 27 at 9–11.)
Plaintiffs’ allegations, however, are insufficient to state a
claim for negligence per se against Corizon.
Plaintiffs allege that Corizon’s contract with the County
obligated Corizon to comply with the standards set by the NCCHC.
(Doc. 20 ¶¶ 44, 145.)
According to Plaintiffs, NCCHC’s standards
were created “for the safety and welfare of inmates such as Bryan
Simmons” and “for purposes of ensuring that inmates received
adequate medical care during their incarceration.”
(Id. ¶ 146.)
The amended complaint lists several ways in which Corizon violated
the NCCHC standards.
Plaintiffs,
(Id. ¶ 151.)
however,
fail
to
provide
support
for
the
proposition that an alleged violation of a contractual obligation
can support a claim of negligence per se.
See Richardson v. United
States, No. 5:08-CV-620-D, 2011 WL 2133652, at *4 (E.D.N.C. May
26, 2011) (“To prove negligence per se under North Carolina law,
a plaintiff must show that the defendant violated a public-safety
statute or regulation.”).
Thus, Corizon’s alleged violation of
its contract with the County fails to state a claim of negligence
per se under North Carolina law.
Cf. Correll v. Bank of Am., N.A.,
No. 2:11CV477, 2012 WL 348594, at *5 (E.D. Va. Feb. 2, 2012)
(holding, under Virginia law, that contractual obligation was
“non-actionable” to support a negligence per se claim).
8
The North Carolina laws cited by Plaintiffs — N.C. Gen. Stat.
§§ 153A-224(b) and 153A-225 — also fail to serve as a basis for
negligence per se. 1
First, § 153A-224(b) states in relevant part:
“In a medical emergency, the custodial personnel shall secure
emergency medical care from a licensed physician according to the
unit’s plan for medical care.
If a physician designated in the
plan is not available, the personnel shall secure medical services
from any licensed physician who is available.”
Plaintiffs offer
no explanation why this provision, which applies to counties,
applies to Corizon.
Cf. Univ. of N.C. v. Hill, 386 S.E.2d 755,
757 (N.C. Ct. App.) (observing that the statute “require[s] that
a
county
provide
emergency
medical
services
to
prisoner’s
incarcerated in the county’s jail” (emphasis added)), aff’d, 396
S.E.2d 323 (N.C. 1990); see also Knight v. Vernon, 214 F.3d 544,
550 (4th Cir. 2000) (citing § 153A-224 for a jailer’s general
duties “to supervise and care for inmates”).
More specifically,
Plaintiffs make no allegation that Corizon employees served in a
custodial
capacity.
Their
amended
complaint
actually
makes
allegations to the contrary: “[T]he nursing staff of Corizon . . .
provided health services to the jail.”
1
(Doc. 20 ¶ 10; see also
The parties have not addressed whether these two statutes qualify as
public safety statutes upon which a negligence per se claim can be
predicated. Under North Carolina law, a public safety statute “is one
that imposes upon a defendant a specific duty for the protection of
others.” Richardson, 2011 WL 2133652, at *4 (citing Stein v. Asheville
City Bd. Of Educ., 626 S.E.2d 263, 266 (N.C. 2006)).
9
id. ¶ 13 (“Corizon . . . had contracted with Guilford County to
provide medical treatment to the jail inmates.”).)
Section 153A-
224(b) therefore cannot be read to impose a statutory duty on
Corizon.
The second cited statutory provision, § 153A-225, states:
“Each unit that operates a local confinement facility shall develop
a plan for providing medical care for prisoners in the facility.”
Under the statute’s definitional section, the term “unit” refers
only to “a county or city.”
N.C. Gen. Stat. § 153A-217.
Thus,
§ 153A-225 imposes no duty on Corizon to “develop a plan for
providing medical care for prisoners.”
Corizon’s motion to dismiss Plaintiffs’ negligence per se
claim will therefore be granted.
2.
Section 1983 Claim Against Corizon
Plaintiffs bring a claim against Corizon under § 1983 and the
Eighth Amendment.
“[A] private corporation is liable under § 1983
only when an official policy or custom of the corporation causes
the alleged deprivation of federal rights.”
Austin v. Paramount
Parks, Inc., 195 F.3d 715, 728 (4th Cir. 1999).
Corizon only
argues that Plaintiffs’ amended complaint fails to state a § 1983
claim for relief because it fails to sufficiently allege Corizon’s
deliberate
indifference
—
not
because
it
fails
to
allege
official policy or custom causing any alleged deprivation.
26 at 5–9.)
10
an
(Doc.
The Eighth Amendment imposes a duty on municipal actors to
“provide humane conditions of confinement.”
789 F.3d 126, 132 (4th Cir. 2015).
Makdessi v. Fields,
In order to state a § 1983
claim under the Eighth Amendment for inadequate medical care when
in confinement, a plaintiff must allege that municipal actors were
deliberately indifferent to his serious medical needs. See Estelle
v. Gamble, 429 U.S. 97, 104 (1976).
“[T]here is a subjective and
an objective component to showing a violation of the right.
plaintiff
must
demonstrate
that
the
officers
acted
The
with
‘deliberate indifference’ (subjective) to the inmate’s ‘serious
medical needs’ (objective).”
Iko v. Shreve, 535 F.3d 225, 241
(4th Cir. 2008) (quoting Estelle, 429 U.S. at 104).
According to the Supreme Court, the deliberate indifference
standard lies “somewhere between the poles of negligence at one
end
and
purpose
recklessness.
or
knowledge
at
the
other”
and
equates
to
Farmer v. Brennan, 511 U.S. 825, 835–36 (1994).
Allegations that a municipal actor knew of and disregarded a
substantial risk of harm are sufficient to state a claim for
relief.
See id. (“It is, indeed, fair to say that acting or
failing to act with deliberate indifference to a substantial risk
of serious harm to a prisoner is the equivalent of recklessly
disregarding that risk.”); Parrish ex rel. Lee v. Cleveland, 372
F.3d 294, 302 (4th Cir. 2004).
11
Plaintiffs’ allegations state sufficient facts of deliberate
indifference
to
avoid
12(b)(6)
dismissal.
According
to
Plaintiffs, Bryan made Corizon’s medical staff aware of his serious
medical complaints concerning “severe stomach pain” and “prolonged
constipation” in late November 2012.
(Doc. 20 ¶¶ 42–43.)
Corizon
nurses allegedly took Bryan’s blood, sent it to a laboratory, and
provided laxatives.
been
vomiting
(Id. ¶ 48.)
blood
and
found
At some point after Bryan had
unconscious
on
November
24,
Plaintiffs allege that Corizon staff declined his request to be
sent to the hospital.
(Id. ¶¶ 54–55.)
Plaintiffs further allege
that “[m]edical records document the vomiting of blood, decreased
urine output and no bowel movements for two weeks.”
(Id. ¶ 56.)
On November 30, Bryan’s medical records allegedly show that he
continued to complain of sharp abdominal pain and shortness of
breath.
(Id. ¶ 57.)
The next day, a Corizon nurse is claimed to have reported
that Simmons “had a bloody rag in his mouth and wanted to kill
himself due to the pain he was experiencing.”
(Id. ¶ 63.)
Later
that same day, Corizon nurses allegedly observed him with bloody
vomit on his face but told him that hospitalization was not
required.
(Id. ¶ 64.)
During the night, Bryan vomited blood
again. (Id. ¶ 77.) When a Corizon nurse responded to the incident,
Bryan allegedly reported, “I’m bleeding on the inside . . . I can
feel it churning.”
(Id. ¶ 78.)
According to Plaintiffs, the nurse
12
told him they had “told the doctor about it” and that only a doctor
could send him to the hospital.
(Id. ¶ 80.)
Bryan continued to
tell the nurse he was “bleeding on the inside” and said that he’d
been throwing up for days.
(Id. ¶¶ 81–82.)
When the Corizon nurse
asked how many days, he responded, “About four.”
(Id. ¶ 82.)
The
Corizon nurse allegedly responded he should simply either “Survive
that thing now” or “Survive the day now” followed by, “You’ll be
alright.”
Simmons’
(Id.)
cell,
Finally, with blood covering the floor of
the
same
Corizon
nurse
purportedly
observed,
“[T]his is not fresh blood,” going on to say, “Old blood . . .
probably from the gastric.”
Despite
Bryan’s
(Id. ¶ 85.)
complaints
and
the
nurse’s
observations,
Bryan allegedly received no further medical care and was not
provided
a
physician
thereafter,
internal
he
went
bleeding
vegetative state.
consultation.
into
from
a
cardiac
(Id.
arrest
perforated
¶
86.)
caused
ulcer
and
Shortly
by
excessive
remains
in
a
(Id. ¶¶ 91, 99.)
Suffice it to say that these allegations, taken as true at
this
stage
of
the
proceedings,
state
plausible
deliberate
indifference as to Bryan’s serious medical needs.
3.
Punitive Damages Claims Against Corizon
Corizon finally contends that Plaintiffs have failed to state
a claim for punitive damages under State or federal law.
at 9–10.)
(Doc. 27
Corizon’s only argument is that Plaintiffs cannot seek
13
punitive damages because they have failed to allege sufficient
facts showing deliberate indifference.
First, Plaintiffs’ amended complaint fails to specify the
ground upon which its punitive damages request is based.
¶¶ 159–62.)
(Doc. 20
Corizon argues that Plaintiffs’ request fails under
State and federal law.
(Doc. 26 at 9–10.)
In response, Plaintiffs
argue that they have stated a claim for punitive damages because
they have alleged facts showing that Corizon (1) refused to provide
medical care when it knew or should have known it was required and
(2) refused to provide necessary treatment after diagnosing Bryan
with a perforated ulcer.
(Doc. 27 at 18–20.)
Punitive damages are available under § 1983.
Wade, 461 U.S. 30, 35 (1983).
See Smith v.
Such damages are only available,
however, for conduct involving “reckless or callous indifference
to the federally protected rights of others, as well as for conduct
motivated by evil intent.”
Cooper v. Dyke, 814 F.2d 941, 948 (4th
Cir. 1987) (quoting Smith, 461 U.S. at 56) (internal quotation
marks omitted).
“The callous indifference required for punitive
damages is essentially the same as the deliberate indifference
required for a finding of liability on [a] § 1983 claim.”
Id.
Similarly,
are
under
North
Carolina
law,
punitive
damages
available where negligence is accompanied by “willful and wanton
conduct.” Benton v. Hillcrest Foods, Inc., 524 S.E.2d 53, 60 (N.C.
Ct. App. 1999); see also Robinson v. Duszynski, 243 S.E.2d 148,
14
150 (N.C. Ct. App. 1978).
performed
with
a
“wicked
“Wanton” conduct is that which is
purpose
or
.
.
.
done
needlessly,
manifesting a reckless indifference to the rights of others,” while
an act is “willful” where there is a “deliberate purpose not to
discharge a duty, assumed by contract or imposed by law, necessary
for the safety of the person or property of another.”
Benton, 524
S.E.2d at 60 (citations omitted.)
Insofar
as
the
court
has
found
Plaintiffs’
allegations
sufficient to allege deliberate indifference by Corizon, the court
finds them sufficient to support a claim for punitive damages under
§ 1983.
They also plainly allege conduct sufficient to state a
claim under North Carolina law.
Corizon’s motion to dismiss
predicated
for
on
Plaintiffs’
claim
punitive
damages
will
therefore be denied.
C.
Guilford Defendants’ Motions to Dismiss
1.
Fourteenth Amendment Claims Under 42 U.S.C. § 1983
Guilford Defendants argue that the facts alleged do not state
a Fourteenth Amendment claim against them under § 1983. Plaintiffs
respond that their amended complaint dismissed their Fourteenth
Amendment claims and that any remaining references to it are
“scrivener errors.”
(Doc. 33 at 8.)
Therefore, to the extent
Plaintiffs’ amended complaint could be construed as asserting
Fourteenth Amendment claims, they will be dismissed.
15
2.
Section 1983 Claim Against Guilford County
In order to state a § 1983 claim under the Eighth Amendment
for
inadequate
municipal
medical
actor
medical needs.
was
care,
a
plaintiff
deliberately
must
indifferent
See Estelle, 429 U.S. at 104.
allege
to
his
that
a
serious
A municipality,
however, may not be found liable under § 1983 “based on a theory
of respondeat superior or simply for employing a tortfeasor.” Hill
v. Robeson Cnty., N.C., 733 F. Supp. 2d 676, 683 (E.D.N.C. 2010);
see also Riddick v. Sch. Bd. of Portsmouth, 238 F.3d 518, 522 (4th
Cir. 2000).
Rather, to state a § 1983 cause of action against a
municipality, a 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) (citing Jordan by Jordan v. Jackson, 15 F.3d 333, 338 (4th
Cir. 1994)); see also Carter v. Morris, 164 F.3d 215, 218 (4th
Cir.
1999)
(holding
that
a
plaintiff
must
allege
that
a
constitutional violation was caused by a municipality’s “official
policy or custom”).
Guilford
against
the
Defendants
County
argue
should
be
that
Plaintiffs’
dismissed
because
§
1983
the
claim
amended
complaint fails to allege “any independent acts by the County upon
16
which to hold it liable under § 1983.” 2
omitted).)
(Doc. 29 at 9–13 (emphasis
They specifically dispute whether North Carolina law
imposes a non-delegable duty on the County to provide adequate
healthcare to inmates. 3
2–5.)
(Doc. 29 at 12; Doc. 33 at 9; Doc. 34 at
The court need not resolve that issue, however, because the
County has a non-delegable duty under the Eighth Amendment to
provide adequate health care to inmates.
In Estelle, the Supreme Court held that government has an
“obligation to provide medical care for those whom it is punishing
by incarceration.”
429 U.S. at 103.
Later, in West v. Atkins,
487 U.S. 42 (1988), the Court made clear that “[c]ontracting out
prison
medical
care
does
not
relieve
the
State
of
its
constitutional duty to provide adequate medical treatment to those
in its custody, and it does not deprive the State’s prisoners of
the means to vindicate their Eighth Amendment rights.”
Id. at 56.
Courts of appeals both before and after West have held that the
Eighth Amendment imposes a continuing obligation on government,
including those at the county level, to provide adequate medical
2
Guilford Defendants also argue that the County could not be liable for
acts of the Sheriff or his officers. (Doc. 29 at 9–11; Doc. 34 at 2.)
Plaintiffs deny making such a claim but say theirs is “based upon [the
County’s] own obligation to provide medical care to inmates.” (Doc. 33
at 8.)
3
The North Carolina Supreme Court has held that the North Carolina
Constitution imposes a duty on the State to provide adequate medical
care to inmates and “that the state cannot absolve itself of
responsibility by delegating it to another.” Medley v. N.C. Dep’t of
Correction, 412 S.E.2d 654, 659 (N.C. 1992).
17
care to inmates.
Before West, in circumstances identical to those here, the
Eleventh Circuit held that, although a county had contracted out
the performance of its Eighth Amendment obligation to provide
medical care to inmates, the “county itself remains liable for any
constitutional deprivations caused by the policies or customs of
the [private medical services provider].”
Ancata v. Prison Health
Servs., Inc., 769 F.2d 700, 705 (11th Cir. 1985).
After West, at
least two other courts of appeals have held that the Eighth
Amendment creates a continuing obligation on counties to provide
adequate medical care despite contracting out inmate medical care
to third parties.
See Leach v. Shelby Cnty. Sheriff, 891 F.2d
1241, 1250 (6th Cir. 1989) (interpreting West to hold that a county
“retains responsibility [for inmates’ medical care] despite having
contracted out the medical care of its prisoners”); King v. Kramer,
680 F.3d 1013, 1020 (7th Cir. 2012) (relying on Estelle to hold
that “[t]he County cannot shield itself from § 1983 liability by
contracting out its duty to provide medical services,” noting that
“[t]he underlying rationale is not based on respondent [sic]
superior, but rather on the fact that the private company’s policy
becomes that of the County if the County delegates final decisionmaking authority to it”); see also Nieto v. Kapoor, 268 F.3d 1208,
1216 (10th Cir. 2001) (holding that “hiring a private doctor . . .
to
perform
supervisory
duties”
18
did
not
relieve
county-owned
hospital from Fourteenth Amendment duty to provide employees equal
protection).
Several district courts, including those in this circuit,
have similarly concluded that, when contracting out medical care
of inmates to third parties, local governments have a continuing
obligation to ensure the provision of adequate inmate medical care
under the Eighth Amendment.
See Scott v. Clarke, 64 F. Supp. 3d
813, 819 (W.D. Va. 2014) (“[T]he lower courts of the United States
have repeatedly concluded that State and local governments may not
insulate themselves from Eighth Amendment claims premised upon
allegations of deficient medical care by delegating responsibility
for the provision of medical care to third parties.”); McGill v.
Corr. Healthcare Cos., Inc., No. 13-CV-01080-RBJ-BNB, 2014 WL
5423271, at *6–7 (D. Colo. Oct. 24, 2014) (concluding that a county
could be liable “through the non-delegable duty doctrine” for
inadequate training provided by a private medical care entity
contracting
with
the
county);
Wilson
v.
Douglas
Cnty.,
No.
8:03CV70, 2005 WL 3019486, at *1 n.1 (D. Neb. Nov. 10, 2005)
(noting that a county may be liable for unconstitutional medical
care “notwithstanding that the County contracted with Wexford, a
private company, to provide medical services to inmates”); Irby v.
Erickson, No. 03-C-1801, 2004 WL 783103, at *2 (N.D. Ill. Jan. 16,
2004) (“Contracting out prison medical care, if that is what
occurred here, does not relieve the county of its constitutional
19
duty
to
provide
custody.”).
adequate
medical
treatment
to
those
in
its
But see Millmine v. Cnty. of Lexington, No. C/A 3:09-
1644-CMC, 2011 WL 182875, at *5 (D.S.C. Jan. 20, 2011) (concluding
that a county is not liable for an official policy or custom of
third party with whom it contracted inmate medical care because
such liability is “a respondeat superior theory not viable under
§ 1983”).
Here, the County allegedly contracted out to Corizon its
obligation to provide inmates with medical care.
32.)
(Doc. 20 ¶¶ 29,
The amended complaint further alleges that Corizon was
delegated some final policymaking authority and that the County
failed
to
Therefore,
review
when
Corizon’s
the
County
policies.
(Id.
purportedly
¶¶
44,
contracted
140(b).)
out
the
performance of inmate medical care, at least some of Corizon’s
policies became “that of the County,” and thus potential § 1983
liability is not based on respondeat superior.
1020; see also Ancata, 769 F.2d at 706.
King, 680 F.3d at
Therefore, the County may
still be liable for alleged constitutionally inadequate medical
care despite having contracted it out to Corizon. 4
4
As with Corizon’s motion to dismiss, Guilford Defendants make no
argument that the amended complaint fails to state plausible allegations
of Corizon’s official policy or custom causing any alleged constitutional
deprivation. Also like Corizon’s motion, Guilford Defendants argue that
Plaintiffs made insufficient allegations of deliberate indifference as
to the County. However, because Corizon’s policies become the County’s,
see King, 680 F.3d at 1020, and this court has already found sufficient
allegations of Corizon’s deliberate indifference, supra, the Guilford
Defendants’ argument similarly fails.
20
Guilford Defendants’ motion to dismiss Plaintiffs’ § 1983
claim against the County will consequently be denied.
3.
Section 1983 Claim Against Sheriff Barnes in His
Official Capacity
Guilford Defendants next contend that the § 1983 claim against
Sheriff Barnes in his official capacity fails to state a claim for
relief.
Plaintiffs respond that their amended complaint pleads
sufficient facts to avoid Rule 12(b)(6) dismissal.
Plaintiffs have sued Sheriff Barnes only in his official
capacity.
(Doc. 20 at 30.)
“[A] suit against a sheriff in his
official capacity constitutes a suit against a local governmental
entity,
i.e.,
a
sheriff’s
office.”
Parker
v.
Burris,
No.
1:13CV488, 2015 WL 1474909, at *6 (M.D.N.C. Mar. 31, 2015), report
and
recommendation
adopted,
No.
1:13CV488,
2015
WL
2169148
(M.D.N.C. May 8, 2015); see also Gantt v. Whitaker, 203 F. Supp.
2d 503, 508 (M.D.N.C. 2002).
Here, both parties devote almost
their entire briefing to argue about Sheriff Barnes’ personal
involvement
in,
and
his
Plaintiffs’ allegations.
15; Doc. 34 at 5–7.)
supervisory
liability
arising
from,
(See Doc. 29 at 14–16; Doc. 33 at 13–
However, “when supervisory liability is
imposed, it is imposed against the supervisory official in his
individual capacity for his own culpable action or inaction in the
training, supervision, or control of his subordinates.”
Clay v.
Conlee, 815 F.2d 1164, 1170 (8th Cir. 1987) (emphasis added); see
21
also Shelley v. Cnty. of Kershaw, No. CA 3:11-3477-CMC, 2013 WL
3816708, at *4 n.6 (D.S.C. July 22, 2013) (holding that, because
the sheriff was not sued in his individual capacity, “no claim
under § 1983 for supervisory liability has been properly asserted
against [the sheriff] in this court”).
Insofar as Sheriff Barnes
is sued only in his official capacity, supervisory liability may
not be imposed upon him.
In order to state a claim against Sheriff Barnes in his
official
capacity,
Plaintiffs
“must
allege
that
the
alleged
constitutional violations resulted from an official policy or
custom of the Sheriff’s office.”
Evans v. Guilford Cnty. Det.
Ctr., No. 1:13CV499, 2014 WL 4641150, at *3 (M.D.N.C. Sept. 16,
2014); Lytle v. Doyle, 326 F.3d 463, 471 (4th Cir. 2003) (“[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.”
(quoting Carter, 164 F.3d at 218)).
Guilford Defendants’ only argument related to Plaintiffs’
official capacity claim against Sheriff Barnes is that “it must be
dismissed as Monell precludes liability predicated on vicarious
liability or respondeat superior.” (Doc. 29 at 14.) This argument
overlooks that § 1983 imposes liability based on an official
capacity claim, such as here, if an “action pursuant to official
municipal policy of some nature caused a constitutional tort.”
22
Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691–95 (1978).
Guilford Defendants make no argument that Plaintiffs’ amended
complaint fails to allege facts of an official policy causing the
claimed Eighth Amendment violation. In the absence of their having
raised this argument, the court will not do so.
Guilford Defendants’ motion to dismiss Plaintiffs’ § 1983
claim against Sheriff Barnes, in his official capacity, will
therefore be denied.
4.
State Law Claims Against Guilford Defendants
Finally, Guilford Defendants argue that Plaintiffs’ State law
claims
should
be
dismissed
governmental immunity.
as
barred
by
State
sovereign
or
Under State sovereign immunity, sheriffs
are immune from suit absent a waiver of immunity.
See Phillips v.
Gray, 592 S.E.2d 229, 232 (N.C. Ct. App. 2004) (“The doctrine of
sovereign immunity bars actions against public officials sued in
their official capacities.
Sheriffs and deputy sheriffs are
considered public officials for purposes of sovereign immunity.”
(citation omitted)).
“Substantially the same immunity is given to
a county and its agencies, absent a waiver, under the rubric of
‘governmental immunity.’”
Russ v. Causey, 732 F. Supp. 2d 589,
610 (E.D.N.C. 2010) (quoting Craig ex rel. Craig v. New Hanover
Cnty. Bd. of Educ., 678 S.E.2d 351, 353 n.3 (N.C. 2009)), aff’d in
part, 468 F. App’x 267 (4th Cir. 2012).
Plaintiffs contend that
immunity has been waived as to both Sheriff Barnes and the County.
23
Unlike the analysis above, “[a] motion to dismiss based on
sovereign immunity is a jurisdictional issue.”
M Series Rebuild,
LLC v. Town of Mount Pleasant, Inc., 730 S.E.2d 254, 257 (N.C. Ct.
App. 2012). Guilford Defendants’ motion raises an immunity defense
based on a lack of personal jurisdiction under Federal Rule of
Civil Procedure 12(b)(2), citing Green v. Kearney, 690 S.E.2d 755
(N.C. Ct. App. 2010).
In Green, the North Carolina Court of
Appeals concluded, “[T]he general rule is that sovereign immunity
presents a question of personal jurisdiction, not subject matter
jurisdiction.”
Id. at 760; see also Meherrin Indian Tribe v.
Lewis, 677 S.E.2d 203, 207 (N.C. Ct. App. 2009) (“[A]n appeal of
a motion to dismiss based on sovereign immunity presents a question
of personal jurisdiction rather than subject matter jurisdiction.”
(quoting Data Gen. Corp. v. Cty. of Durham, 545 S.E.2d 243, 245–
46 (N.C. Ct. App. 2001)) (internal quotation marks omitted)).
Thus, the court will consider Guilford Defendants’ motion to
dismiss under Rule 12(b)(2). 5
5
The North Carolina Supreme Court has yet to decide whether dismissal
based on State sovereign or governmental immunity is a matter of personal
or subject-matter jurisdiction. North Carolina courts continue to hold
that “whether sovereign immunity is grounded in a lack of subject matter
jurisdiction or personal jurisdiction is unsettled in North Carolina.”
M Series Rebuild, 730 S.E.2d at 257; see also Atl. Coast Conference v.
Univ. of Md., 751 S.E.2d 612, 617 (N.C. Ct. App. 2013).
Whether to
assess the State sovereign immunity defense under Rule 12(b)(1) or
12(b)(2), however, appears to be immaterial here. See AGI Assocs., LLC
v. Profile Aviation Ctr., Inc., No. 5:13CV61-RLV, 2013 WL 4482933, at
*3 (W.D.N.C. Aug. 21, 2013) (noting that the court could conduct
jurisdictional analysis of State sovereign immunity under Rule 12(b)(1)
24
Plaintiffs
bear
the
burden
of
establishing
jurisdiction by a preponderance of the evidence.
personal
See Universal
Leather, LLC v. Koro AR, S.A., 773 F.3d 553, 558 (4th Cir. 2014);
Carefirst of Md., Inc. v. Carefirst Pregnancy Ctrs., Inc., 334
F.3d 390, 396 (4th Cir. 2003); Combs v. Bakker, 886 F.2d 673, 676
(4th Cir. 1989). “When, however, as here, a district court decides
a pretrial personal jurisdiction motion without conducting an
evidentiary hearing, the plaintiff need only make a prima facie
showing of personal jurisdiction.”
Carefirst, 334 F.3d at 396.
The court may consider supporting affidavits when determining
whether a plaintiff has made a prima facie showing of personal
jurisdiction.
See Universal Leather, 773 F.3d at 558.
“In
deciding whether the plaintiff has proved a prima facie case of
personal jurisdiction, the district court must draw all reasonable
inferences
arising
from
the
proof,
disputes, in the plaintiff’s favor.”
and
resolve
all
factual
Mylan Labs., Inc. v. Akzo,
N.V., 2 F.3d 56, 60 (4th Cir. 1993); see also Carefirst, 334 F.3d
at 396. If the existence of jurisdiction turns on disputed factual
questions, the court may resolve the challenge on the basis of an
or Rule 12(b)(2)), aff’d sub nom. AGI Assocs., LLC v. City of Hickory,
N.C., 773 F.3d 576 (4th Cir. 2014); Collum v. Charlotte-Mecklenburg Bd.
of Educ., No. 3:07CV534-RJC-DSC, 2010 WL 702462, at *6 (W.D.N.C. Feb.
23, 2010) (assessing State sovereign and governmental immunity under
both Rule 12(b)(1) and Rule 12(b)(2)); Pettiford, 556 F. Supp. 2d at 524
n.8 (“[T]he distinction appears to have no impact on the method of
review.”).
Notably, Plaintiffs do not object to assessing Guilford
Defendants’ motion under Rule 12(b)(2).
25
evidentiary
hearing
or,
when
a
prima
facie
demonstration
of
personal jurisdiction has been made, it can proceed “as if it has
personal
jurisdiction
over
th[e]
matter,
although
determinations to the contrary may be made at trial.”
factual
Pinpoint IT
Servs., L.L.C. v. Atlas IT Exp. Corp., 812 F. Supp. 2d 710, 717
(E.D. Va. 2011) (citing 2 James Wm. Moore et al., Moore’s Federal
Practice ¶ 12.31 (3d ed. 2011)).
Nevertheless, either at trial or
at a pretrial evidentiary hearing, the plaintiff must eventually
prove the existence of personal jurisdiction by a preponderance of
the evidence.
New Wellington Fin. Corp. v. Flagship Resort Dev.
Corp., 416 F.3d 290, 294 n.5 (4th Cir. 2005).
As to Sheriff Barnes, North Carolina law permits suits against
“a sheriff and the surety on his official bond for acts of
negligence in the performance of official duties.” 6
Myers v.
Bryant, 655 S.E.2d 882, 885 (N.C. Ct. App. 2008) (citing N.C. Gen.
6
North Carolina law also waives immunity of a sheriff by the purchase
of liability insurance under N.C. Gen. Stat. § 153A-435. See Russ, 732
F. Supp. 2d at 610; Myers, 655 S.E.2d at 885 (holding that county’s
purchase of liability insurance can waive sheriff’s immunity beyond
$25,000 bond). Plaintiffs, however, make no allegation or contention
that the County’s participation in the LGELF further waives Sheriff
Barnes’ immunity.
See Russ, 732 F. Supp. 2d at 611 (“Any effective
waiver of immunity through the insurance policy would have to be in
addition to and separate from the waiver of the bond.”).
Guilford
Defendants have also submitted the affidavit of Randall R. Zimmerman,
President of the LGELF, who states that Guilford County’s “Fund B” is
“separate and distinct” from Sheriff Barnes’ bond.
(Doc. 30 ¶ 10.)
Zimmerman further states, “In his capacity as Sheriff of Guilford County,
Sheriff B.J. Barnes is not a principal under any other surety bonds nor
is he a member of any Local Government Risk Pool nor is he insured under
any General Liability Insurance Policy or Law Enforcement Liability
Insurance Policy.” (Id. ¶ 11.)
26
Stat. § 58-76-5).
North Carolina law requires that all sheriffs
purchase a bond not exceeding $25,000.
N.C. Gen. Stat. § 162-8.
Under North Carolina law, a sheriff waives State sovereign immunity
by purchasing that bond.
N.C. Gen. Stat. § 58–76–5.
Here, Sheriff Barnes allegedly purchased a $25,000 bond, as
required by N.C. Gen. Stat. § 162-8.
7.)
(Doc. 20 ¶¶ 33; Doc. 30 at
Plaintiffs sued both Sheriff Barnes and the surety on his
official
bond,
LGELF,
for
negligence
stemming from that negligence.
30 at 7.)
complaint
and
loss
of
consortium
(Doc. 20 ¶¶ 33, 141, 153–58; Doc.
Under North Carolina law, therefore, the amended
states
sufficient
allegations
that
State
immunity is waived as to Sheriff Barnes to this extent.
sovereign
See Myers,
655 S.E.2d at 885; Smith v. Phillips, 451 S.E.2d 309, 313 (N.C.
Ct. App. 1994); see also Russ, 732 F. Supp. 2d at 610.
Recognizing this potential conclusion, Guilford Defendants
ask the court to limit Plaintiffs’ claims to the amount of Sheriff
Barnes’ bond — $25,000.
(Doc. 29 at 20; Doc. 30.)
They argue
that such a limitation is consistent with N.C. Gen. Stat. § 153A435(a).
See N.C. Gen. Stat. § 58–76–5.
Plaintiffs offer no
response to Guilford Defendants’ proposed limitation.
North Carolina courts have held that purchase of a bond by a
sheriff, as required under N.C. Gen. Stat. § 162-8, waives State
sovereign immunity but “only to the extent of the amount of the
bond.”
White v. Cochran, 748 S.E.2d 334, 339 (N.C. Ct. App. 2013);
27
see also Hill v. Medford, 588 S.E.2d 467 (N.C. 2003) (per curiam)
(adopting dissent in 582 S.E.2d 325 (N.C. Ct. App. 2003), which
stated, “As a public official, if sued in his or her official
capacity,
a
sheriff
is
protected
against
tort
actions
by
governmental immunity unless the sheriff purchases a bond pursuant
to G.S. § 58–76–5, and then, can only be liable on tort claims to
the extent of the amount of that bond”); Summey v. Barker, 544
S.E.2d 262, 264 (N.C. Ct. App. 2001) (holding that, “to the extent
of the bond required” by a different North Carolina law, a public
officer’s immunity did not bar plaintiff’s claim).
Federal courts
interpreting North Carolina law have reached the same conclusion.
See Oliver v. Harper, No. 5:09-CT-3027-H, 2011 WL 1104134, at *10
(E.D.N.C.
Mar.
22,
2011)
(“[T]he
defendants’
purchase
of
a
$25,000.00 bond does waive immunity for damages but only up to the
amount of the bond.”); Russ, 732 F. Supp. 2d at 610.
Because Sheriff Barnes allegedly purchased a $25,000 bond as
required by N.C. Gen. Stat. § 162-8 (Doc. 20 ¶ 33; Doc. 30) and
Plaintiffs have not presented (nor has this court found) any reason
to reach a contrary conclusion, the court will limit Plaintiffs’
State law claims against the Sheriff (Counts III and V) to the
$25,000 amount of the bond.
As for the County, Plaintiffs first argue that N.C. Gen. Stat.
§ 153A-225 waives the County’s governmental immunity.
In support
of this argument, Plaintiffs cite Beckles-Palomares v. Logan, 688
28
S.E.2d 758 (N.C. Ct. App. 2010), for the proposition that “if a
governmental unit is under a statutory obligation to perform an
act, then it may not claim governmental immunity when it fails in
that duty.”
decision.
(Doc. 33 at 18.)
This is a misreading of that
In Beckles-Palomares, the North Carolina Court of
Appeals applied established law that N.C. Gen. Stat. § 160A-296
waives the governmental immunity doctrine.
688 S.E.2d at 242–43.
In doing so, the court applied “the safe streets exception,” which
states that maintenance of municipality streets and sidewalks is
a
proprietary,
not
governmental immunity.
governmental,
function
unprotected
by
See Sisk v. City of Greensboro, 645 S.E.2d
176, 179 (N.C. Ct. App. 2007).
Plaintiffs fail to explain how
that case demonstrates that a different statute — N.C. Gen. Stat.
§ 153A-225 — establishes a waiver of governmental immunity.
See
Meyer v. Walls, 489 S.E.2d 880, 884 (N.C. 1997) (stating, in
reference
to
waiver
of
governmental
immunity,
“[w]aiver
of
sovereign immunity may not be lightly inferred” (quoting Guthrie
v. N.C. State Ports Auth., 299 S.E.2d 618, 627 (N.C. 1983))).
Plaintiffs’ waiver argument as to § 153A-225 is thus unpersuasive.
Plaintiffs also argue that the County waived its immunity by
purchasing liability insurance pursuant to N.C. Gen. Stat. § 153A435(a).
Under § 153A-435(a), a county may “purchase liability
insurance, which includes participating in a local government risk
pool, for negligence caused by an act or omission of the county or
29
any
of
its
officers,
government functions.”
insurance
pursuant
governmental
or
employees
when
Myers, 655 S.E.2d at 885.
to
immunity,
§ 153A-435(a).
agents,
§
to
153A-435(a)
the
extent
“waives
of
performing
Purchase of
the
insurance
county’s
coverage.”
In their amended complaint, Plaintiffs allege that
the County “may be insureds under a liability insurance policy or
participation [sic] in a Risk Pool.”
Guilford
Defendants
(Doc. 20 ¶ 34.)
acknowledge
that
the
County
has
participated in the LGELF since 2001, but they claim that this
participation does not constitute a waiver of immunity under
§ 153A-435(a).
(Doc. 29 at 19; Doc. 30 ¶ 5.)
In support of their
defense, Guilford Defendants filed the affidavit of Randall R.
Zimmerman, President of the LGELF.
(Doc. 30.)
According to
Zimmerman, the County is self-insured up to $100,000. (Id. ¶ 4.)
The LGELF pays claims against the County between $100,000 and
$5,000,000, but the County is obligated to repay the LGELF in the
entirety. (Id.)
Based on the County’s evidence, which is uncontested, the
LGELF does not waive the County’s immunity.
The LGELF fails to
meet the statutory requirements of a local government risk pool
because (1)
two
LGELF
members,
the
Guilford
County
Board
of
Education and Guilford Technical Community College, are not local
governments, see N.C. Gen. Stat. §§ 58-23-1, 58-23-5(a); (Doc. 30
¶ 7(a)); (2) no notice was given to the Commissioner of Insurance
30
that
the
participating
entities
“intend[ed]
to
organize
and
operate [a] risk pool[]” under North Carolina law, as required by
N.C. Gen. Stat. § 58-23-5(e), (Doc. 30 ¶ 7(b)); and (3) the LGELF
does not contain a provision for a system or program of loss
control, see N.C. Gen. Stat. § 58-23-15(1); (Doc. 30 ¶ 7(c)).
See
Pettiford, 556 F. Supp. 2d at 525 (finding similar failures to
meet the statutory requirements of a local government risk pool);
Lyles v. City of Charlotte, 477 S.E.2d 150, 153 (N.C. 1996) (same);
Dobrowolska ex rel. Dobrowolska v. Wall, 530 S.E.2d 590, 595–96
(N.C. Ct. App. 2000) (same).
The LGELF also does not constitute
a local government risk pool because the County must repay the
entire amount for claims between $100,000 and $5 million. 7
N.C.
Gen. Stat. § 153A-435(a); see also Pettiford, 556 F. Supp. 2d at
525 (applying similar statutory provision applicable to North
Carolina cities); White, 748 S.E.2d at 340 (holding that immunity
is waived under § 153A-435(a) only to the extent that a county is
indemnified).
Finally, the County’s Board of Commissioners did
not adopt a resolution deeming “the creation of [the LGELF] to be
the same as the purchase of insurance,” which would have also
waived its governmental immunity.
7
N.C. Gen. Stat. § 153A-435(a);
The LGELF fails to meet several other statutory requirements.
In
particular, it (1) does not make any accounting reports available to the
Commissioner of Insurance, N.C. Gen. Stat. § 58-23-26, (Doc. 30 ¶ 7(d));
and (2) has no authority or mechanism to assess members of the pool to
satisfy any financial deficiencies, N.C. Gen. Stat. § 58-23-30(b); (Doc.
30 ¶ 7(e)).
31
(Doc. 30 ¶ 8).
Plaintiffs argue finally that they should be able to conduct
“at
least
minimal
discovery”
involvement in the risk pool.
to
investigate
(Doc. 33 at 20.)
the
County’s
But to do so, in
light of the County’s affidavit, would deprive the County of the
very immunity to which it is entitled.
In the absence of some
reason to question the County’s affidavit, Plaintiffs’ request for
jurisdictional discovery is denied.
See Carefirst of Md., Inc. v.
Carefirst Pregnancy Ctrs., Inc., 334 F.3d 390, 402 (4th Cir. 2003)
(“When
a
plaintiff
offers
only
speculation
or
conclusory
assertions . . ., a court is within its discretion in denying
jurisdictional discovery.”); Base Metal Trading, Ltd. v. OJSC
"Novokuznetsky Aluminum Factory", 283 F.3d 208, 216 n.3 (4th Cir.
2002)
(upholding
district
court’s
denial
of
jurisdictional
discovery where “the plaintiff simply wants to conduct a fishing
expedition
in
the
hopes
of
discovering
some
basis
of
jurisdiction”).
Guilford
Defendants’
motion
to
dismiss
the
amended
complaint’s State law claims against the County (Counts III and V)
will therefore be granted.
III. CONCLUSION
For the reasons stated, therefore,
IT IS ORDERED that Corizon’s motion to dismiss (Doc. 25) is
GRANTED as to Plaintiffs’ negligence per se claim (Count IV); and
32
DENIED as to Plaintiffs’ § 1983 claim (Count II) and request for
punitive damages (Count VI).
IT IS FURTHER ORDERED that Guilford Defendants’ motion to
dismiss (Doc. 28) is GRANTED as to Plaintiffs’ Fourteenth Amendment
claim under § 1983 against Guilford County and Sheriff Barnes
(Count I), Plaintiffs’ State law claims against Guilford County
(Counts III and V); and Plaintiffs’ State law claims against
Sheriff Barnes (Counts III and V) to the extent those claims will
be limited to recovery up to and including $25,000; and DENIED as
to
Plaintiffs’
Eighth
Amendment
claims
under
§
1983
against
Guilford County and Sheriff Barnes in his official capacity (Count
I).
/s/
Thomas D. Schroeder
United States District Judge
August 4, 2015
33
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