DURAND v. CHARLES

Filing 22

MEMORANDUM OPINION, ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE L. PATRICK AULD signed on 12/30/2016. The Motion to Strike 18 is DENIED. It is RECOMMENDED that the Motion to Dismiss 12 be DENIED. (Coyne, Michelle)

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

RAYBORN J. DURAND,

)
)
)
)
)
)
)
)
)

Plaintiff,
v.
ANTHONY G. CHARLES, M.D.,
Defendant.

1:16cv86

MEMORANDUM OPINION, ORDER, AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
This

case

comes

before

the

undersigned

United

States

Magistrate Judge for a recommendation on “Defendant’s Motion to
Dismiss” (Docket Entry 12) (the “Motion to Dismiss”), as well as
for an order on “Defendant’s Motion to Strike” (Docket Entry 18)
(the “Motion to Strike”).

For the reasons that follow, the Court

will deny the Motion to Strike and should deny the Motion to
Dismiss.
BACKGROUND
Pursuant to 42 U.S.C. § 1983, Rayborn J. Durand (“Plaintiff”)
commenced this action against Anthony G. Charles, MD (“Defendant”)
for acts and/or omissions amounting to deliberate indifference to
Plaintiff’s

serious

medical

needs

during

Plaintiff’s

pretrial

detention by the North Carolina Department of Public Safety (the
“DPS”).

(Docket Entry 2 (the “Complaint”) at 4-7.)

the Complaint:

According to

Plaintiff “was diagnosed with a right inguinal hernia” during
his pretrial detention at the DPS’s Craven Correctional Institution
(the “Craven C.I.”).

(Id. at 5.)1

Defendant performed “a right

inguinal hernia repair with mesh” on Plaintiff “at the U.N.C.
Medical Center at Chapel Hill” (the “U.N.C.M.C.”) on February 1,
2013. (Id.) “In the next days[, Plaintiff’s] right scrotum became
swollen and painful,” causing his return to the U.N.C.M.C. on
February 7, 2013, at which point Defendant “excised a retained
distal sac sized 6.8 cm x 3.7 x 2.5 cm.”

(Id.)

Following this

surgery, Plaintiff “was taken to Central Prison” (the “C.P.”) and
“admitted to the C.P. Hospital acute care ward.”

(Id.)

Plaintiff

“developed a painful swollen hardened mass surrounding his right
testicle” and, at an appointment at U.N.C.M.C. on February 19,
2013, Defendant “instructed [Plaintiff] to take ibuprofen for pain
and to elevate and ice his scrotum for swelling” and discharged
Plaintiff from Defendant’s care.

(Id.)

On February 21, 2013, an ultrasound technician conducted an
ultrasound of Plaintiff’s scrotum at the C.P. Hospital. (Id.) The

1 The term “inguinal hernia” denotes “a hernia in which part
of the intestine protrudes into the inguinal canal.”
Inguinal
Hernia,
Merriam-Webster
Unabridged
Dictionary,
http://unabridged.merriam-webster.com/unabridged/inguinal%20hernia
(last visited Dec. 30, 2016).
As relevant to this action, the
inguinal canal constitutes “a passage in the male through which the
testis descends into the scrotum and in which lies the spermatic
cord.”
Inguinal Canal, Merriam-Webster Unabridged Dictionary,
http://unabridged.merriam-webster.com/unabridged/id%3Ainguinal%20
canal (last visited Dec. 30, 2016).
2

ultrasound technician informed Physician Assistant Kurian (“P.A.
Kurian”), Plaintiff’s C.P. Hospital “care provider,” that the
ultrasound “revealed decreased to no blood flow to [Plaintiff’s]
right

testicle.”

(Id.)

“P.A.

Kurian

emergently

contacted

[Defendant] who when told of the [ultrasound] finding stated that
he

was

already

aware

that

the

blood

supply

to

[Plaintiff’s]

testicle was diminished and there was a good chance [Plaintiff]
would lose his testicle. [Defendant] counseled P.A. Kurian against
tak[i]ng

any

further

action.”

(Id.

at

6.)

Following

his

discussion with Defendant, P.A. Kurian informed Plaintiff “of the
[ultrasound] result and of the impending possible loss of his
testicle,” and “told [him] that no further action would be taken at
[Defendant’s] recommendation.”

(Id.)

“That evening,” “Dr. Tharrington, a radiologist who had just
read [Plaintiff’s ultrasound] results,” called “Dr. Bowen of the
C.P. Hospital emergency dep[artment].” (Id.) Dr. Tharrington told
Dr. Bowen “that immediate emergency surgical consultation and
followup was urged concerning the lack of testicular blood flow.”
(Id.)

On the morning of February 22, 2013, Plaintiff underwent

exploratory surgery by Dr. Gorden Fifer at the U.N.C.M.C., which
“revealed a necrotic right testicle which was removed.”

(Id.)2

On

2
“Necrotic” serves as an adjective of “necrosis,” see
Necrotic, Oxford Dictionaries, https://en.oxforddictionaries.com/
definition/necrotic (last visited Dec. 30, 2016), which, in turn,
means “[t]he death of most or all of the cells in an organ or
tissue due to disease, injury, or failure of the blood supply,”
3

March 25, 2013, Plaintiff “was released from Dr. Fifer’s care and
was also released from the C.P. Hospital and returned to Craven
C.I.”

(Id.)

“[T]he lack of or decreased blood flow to [Plaintiff’s]
testicle,

which

was

foreknown

by

[Defendant]

before

the

[ultrasound,] was a serious medical need requir[i]ng treatment.”
(Id. at 7.)

Defendant “was deliberately indifferent to this

serious medical need by failing to initiate action when he first
knew of the lack of or decreased blood flow and possible impending
loss of [Plaintiff’s] testicle and by counseling against tak[i]ng
any preventative action to prevent its loss.”
deliberate

indifference

resulted

in

a

(Id.)

significant

“This

injury

to

[Plaintiff], the loss of his testicle, the importance of which is
compounded by the fact that [Plaintiff] is incarcerated.”

(Id.)

This conduct violated Plaintiff’s “right to due process as . . . a
pretrial

detainee,”

for

which

violation,

Plaintiff

“seek[s]

compensatory and punitive damages, costs of this action[,] and any
other relief the [C]ourt deems just and proper.”

(Id.)

DISCUSSION
I.

Motion to Strike

As an initial matter, Defendant moves to strike as untimely
Plaintiff’s response to the Motion to Dismiss (Docket Entry 16 (the

Necrosis, Oxford Dictionaries, https://en.oxforddictionaries.com/
definition/necrosis (last visited Dec. 30, 2016).
4

“Response”)).

(Docket Entry 18 at 1.)

Specifically, Defendant

argues that striking Plaintiff’s Response as untimely constitutes
“an appropriate sanction” for Plaintiff’s conduct in filing his
Response on Monday, August 8, 2016 (see Docket Entry 16 at 17),
rather than by his deadline of Friday, August 5, 2016 (see Text
Order dated July 12, 2016).

(Docket Entry 19 at 3.)

Defendant

articulates no prejudice from this one-business-day delay.
generally Docket Entry 19.)

(See

Rather, Defendant seeks to strike the

Response in the hope that the Court will “grant Defendant’s Motion
to Dismiss as an uncontested motion pursuant to Local Rule 7.3(k).”
(Id. at 4.)
By Local Rule, the Court may treat any motion lacking a timely
response as an uncontested motion, which the Court may grant
without further notice.

M.D.N.C. LR 7.3(k).3

Pursuant to the

precedent of the United States Court of Appeals for the Fourth
Circuit, however, the Court must evaluate the propriety of granting
the Motion to Dismiss regardless of whether Plaintiff opposed such
dismissal.

See Stevenson v. City of Seat Pleasant, Md., 743 F.3d

411, 416 n.3 (4th Cir. 2014) (explaining that, “[e]ven though [the
plaintiffs] did not challenge the motions to dismiss, . . . the
district court nevertheless has an obligation to review the motions

3 More specifically, Local Rule 7.3(k) provides that, “[i]f
a respondent fails to file a response within the time required by
this rule, the motion will be considered and decided as an
uncontested motion, and ordinarily will be granted without further
notice.” Id.
5

to ensure that dismissal is proper”); accord Gardendance, Inc. v.
Woodstock Copperworks, Ltd., 230 F.R.D. 438, 449 (M.D.N.C. 2005)
(“As with summary judgment motions, a court does not grant a motion
for dismissal merely because it is uncontested. Rather, a district
court should review a motion to dismiss on its merits to determine
whether the pleadings are sufficient.”).
Under these circumstances, the Court denies the Motion to
Strike.
II.
A.
A

Motion to Dismiss
Federal Rule of Civil Procedure 12(b)(6) Challenge

motion

to

dismiss

pursuant

to

Federal

Rule

of

Civil

Procedure 12(b)(6) (“Rule 12(b)(6)”) “tests the sufficiency of a
complaint,” but “does not resolve contests surrounding the facts,
the

merits

of

a

claim,

or

the

applicability

of

defenses.”

Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir.
1992). Accordingly, in reviewing a Rule 12(b)(6) motion, the Court
must “accept the facts alleged in the complaint as true and
construe them in the light most favorable to the plaintiff.”
Coleman v. Maryland Court of Appeals, 626 F.3d 187, 189 (4th Cir.
2010), aff’d sub nom., Coleman v. Court of Appeals of Md., __ U.S.
__, 132 S. Ct. 1327 (2012).

The Court must also “draw all

reasonable inferences in favor of the plaintiff.”

E.I. du Pont de

Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 440 (4th Cir.
2011) (internal quotation marks omitted).

6

Moreover, a pro se

complaint must “be liberally construed” and “held to less stringent
standards than formal pleadings drafted by lawyers.”

Erickson v.

Pardus, 551 U.S. 89, 94 (2007) (internal quotation marks omitted);
but see Giarratano v. Johnson, 521 F.3d 298, 304 n.5 (4th Cir.
2008) (explaining that the Fourth Circuit has “not read Erickson to
undermine [the] requirement that a pleading contain more than
labels and conclusions” (internal quotation marks omitted)).
To survive a Rule 12(b)(6) motion, a complaint must contain
enough factual allegations “to ‘state a claim to relief that is
plausible on its face.’”

Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). To qualify as plausible, a claim needs sufficient factual
content to support a reasonable inference of the defendant’s
liability for the alleged misconduct.
U.S. at 556).

Id. (citing Twombly, 550

The complaint need not contain detailed factual

recitations, but must provide “fair notice of what the . . . claim
is and the grounds upon which it rests.”

Twombly, 550 U.S. at 555

(ellipsis in original; internal quotation marks omitted).
i.

Deliberate Indifference Standards

Courts evaluate pretrial detainees’ conditions of confinement
in state custody under the Due Process Clause of the Fourteenth
Amendment.

See Bell v. Wolfish, 441 U.S. 520, 535 (1979).

“The

due process rights of a pretrial detainee are at least as great as
the [E]ighth [A]mendment protections available to the convicted

7

prisoner.”

Martin v. Gentile, 849 F.2d 863, 870 (4th Cir. 1988).

In that regard, “when the State by the affirmative exercise of its
power so restrains an individual’s liberty that it renders him
unable to care for himself, and at the same time fails to provide
for his basic human needs — e.g., food, clothing, shelter, medical
care, and reasonable safety — it transgresses the substantive
limits on state action set by the Eighth Amendment and the Due
Process Clause.

DeShaney v. Winnebago Cty. Dep’t of Soc. Servs.,

489 U.S. 189, 200 (1989) (emphasis added).
“Thus, deliberate indifference to the serious medical needs of
a pretrial detainee violates the [D]ue [P]rocess [C]lause.”

Young

v. City of Mount Ranier, 238 F.3d 567, 575 (4th Cir. 2001).
Moreover, it appears that the same analysis applies to Section 1983
deliberate indifference claims under the Fourteenth Amendment as
under the Eighth Amendment.

See Duff v. Potter, No. 1:15-cv-26,

2016 WL 1615684, at *5 & n.4 (W.D.N.C. Apr. 22, 2016) (noting that
“[t]he Supreme Court in Kingsley[ v. Hendrickson, __ U.S. __, 135
S. Ct. 2466 (2015),] did not explicitly extend the objective
reasonableness standard for excessive force claims to other claims
brought by pretrial detainees, including deliberate indifference
claims”), aff’d in part, vacated in part, remanded, No. 16-6783,
2016 WL 6518876 (4th Cir. Nov. 3, 2016); but see Kinder v. Merced
Cty., No. 1:16-cv-1311, 2016 WL 5341254, at *3-4 (E.D. Cal. Sept.

8

22, 2016) (applying Kingsley objective reasonableness standard to
pretrial detainee’s deliberate indifference claim).
Under that standard, Plaintiff must show that Defendant “acted
with

‘deliberate

indifference’

(subjective)

to

the

inmate’s

‘serious medical needs’ (objective).” Iko v. Shreve, 535 F.3d 225,
241 (4th Cir. 2008) (citing Estelle v. Gamble, 429 U.S. 97, 104
(1976)).

A medical need qualifies as serious if it “has been

diagnosed by a physician as mandating treatment or . . . is so
obvious that even a lay person would easily recognize the necessity
for a doctor’s attention.” Id. (internal quotation marks omitted).
A defendant displays deliberate indifference where he possesses
knowledge of the risk of harm to an inmate and knows that “his
actions were insufficient to mitigate the risk of harm to the
inmate arising from his medical needs.” Id. (emphasis and internal
quotation marks omitted); see also Scinto v. Stansberry, 841 F.3d
219, 225 (4th Cir. 2016) (“To prove deliberate indifference,
plaintiffs must show that ‘the official kn[ew] of and disregard[ed]
an excessive risk to inmate health or safety.’” (brackets in
original) (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994))).
“[D]eliberate indifference entails something more than mere
negligence, . . . [but] is satisfied by something less than acts or
omissions for the very purpose of causing harm or with knowledge
that harm will result.”

Farmer, 511 U.S. at 835.

“It requires

that a [defendant] actually know of and disregard an objectively

9

serious condition, medical need, or risk of harm.”

De’lonta v.

Johnson, 708 F.3d 520, 525 (4th Cir. 2013) (internal quotation
marks omitted).

A plaintiff can satisfy this standard by showing

“‘that a [defendant] knew of a substantial risk from the very fact
that the risk was obvious.’”

Scinto, 841 F.3d at 226 (quoting

Makdessi v. Fields, 789 F.3d 126, 133 (4th Cir. 2015)).
A

plaintiff

can

also

establish

“a

prima

face

case

of

deliberate indifference” where “‘a substantial risk of [serious
harm] was longstanding, pervasive, well-documented, or expressly
noted by prison officials in the past, and the circumstances
suggest that the defendant-official . . . had been exposed to
information concerning the risk and thus must have known about
it.’”

Id. (brackets and ellipsis in original) (quoting Parrish ex

rel. Lee v. Cleveland, 372 F.3d 294, 303 (4th Cir. 2004)).

In

addition, “‘[f]ailure to respond to an inmate’s known medical needs
raises an inference [of] deliberate indifference to those needs.’”
Id. (brackets in original) (quoting Miltier v. Beorn, 896 F.2d 848,
853 (4th Cir. 1990), overruled in part on other grounds by Farmer,
511 U.S. at 837).
ii.

Defendant’s Contentions

Defendant argues that “[P]laintiff has failed to allege any
conduct that would rise to the level of a Fourteenth Amendment
violation for deliberate indifference to a serious medical need.”

10

(Docket Entry 13 at 9.)4

In particular, Defendant emphasizes “the

extensive medical care that was provided to [Plaintiff] by the
Defendant and several other health care professionals.”
also id. at 9-11 (detailing medical treatment).)

(Id.; see

In Defendant’s

view,
Plaintiff’s allegations do not involve conduct that
is “so grossly incompetent, inadequate or excessive as to
shock the conscience or to be intolerable to fundamental
fairness.”
Miltier[,] 896 F.2d at 851.
Rather, the
facts alleged in the Plaintiff’s Complaint evidence a
herculean effort to address Plaintiff’s condition. At
best, Plaintiff’s claims give rise to nothing more than
a mere disagreement about his treatment.
Indeed, the
plaintiff’s cause of action, at its core, is one for
negligence.
(Docket Entry 13 at 11.)

Defendant’s arguments lack merit.

To begin with, “‘[a] total deprivation of care is not a
necessary
Grossly

condition

incompetent

for
or

finding

a

inadequate

deliberate indifference.’”

constitutional

care

can

violation:

[also]

constitute

De’lonta, 708 F.3d at 526 (second set

of brackets in original) (quoting Langford v. Norris, 614 F.3d 445,
460 (8th Cir. 2010)). Moreover, “just because” Defendant and other
medical personnel “provided [Plaintiff] with some treatment” does
not

mean

that

they

“necessarily

constitutionally adequate treatment.”
(rejecting

contention

that,

by

provided

h[im]

with

Id. (emphasis in original)

alleging

that

the

defendants

4
Defendant does not dispute that Plaintiff’s medical
situation qualifies as a “serious medical need.” (See generally
Docket Entry 13.)
11

“actively participated in providing treatment directed to” the
plaintiff’s medical issue, the plaintiff “necessarily failed to
state a plausible claim that [the defendants] were deliberately
indifferent
omitted)).

to

th[e

medical]

risk”

(internal

quotation

marks

Instead — regardless of the treatment provided — the

determinative question remains whether Plaintiff’s allegations
regarding Defendant plausibly support an inference that Defendant
acted with deliberate indifference towards Plaintiff’s serious
medical needs.

See, e.g., Goodman v. Johnson, 524 F. App’x 887,

888-90 (4th Cir. 2013) (reversing dismissal of claims against three
doctors

who

“each

.

.

.

refused

to

adequately

address

[the

plaintiff’s] complaints that his eyeglasses cause him headaches,”
but affirming dismissal of claims against other defendants where
the “complaint failed to allege facts from which one might infer
that [any of those defendants] improperly interfered with [the
plaintiff’s] receipt of contact lenses or was aware that [his]
doctors were not providing him with adequate treatment”).
On that front, Defendant contends that Plaintiff’s allegations
amount to “a mere disagreement about his treatment” that cannot
support a Section 1983 claim.

(Docket Entry 13 at 7-9, 11-12.)5

5
Medical negligence cannot support a Section 1983 claim
because,
in the medical context, an inadvertent failure to provide
adequate medical care cannot be said to constitute “an
unnecessary and wanton infliction of pain” or to be
“repugnant to the conscience of mankind.” . . . In order
12

The Fourth Circuit has made it clear that “mere disagreements
between an inmate and a physician over the inmate’s proper medical
care are not actionable [under Section 1983] absent exceptional
circumstances.”

Scinto, 841 F.3d at 225 (brackets and internal

quotation marks omitted).
stated

that,

“although

However, the Fourth Circuit also has
.

.

.

a

prisoner

does

not

enjoy

a

constitutional right to the treatment of his or her choice, the
treatment a prison facility does provide must nevertheless be
adequate

to

address

the

prisoner’s

serious

medical

need.”

De’lonta, 708 F.3d at 526 (footnote omitted).6
Consistent with the foregoing statement from De’lonta, the
Fourth Circuit recently reversed the dismissal of a deliberate
indifference claim where the plaintiff “alleged that his doctors
acknowledged some symptoms but ignored most, disregarded abnormal
test results, and failed to treat any of his symptoms effectively,”
observing that these “facts . . ., if true, would establish that
his doctors actually knew of and disregarded an objectively serious

to state a cognizable claim, a prisoner must allege acts
or omissions sufficiently harmful to evidence deliberate
indifference to serious medical needs. It is only such
indifference that can offend “evolving standards of
decency” in violation of the Eighth Amendment.
Estelle, 429 U.S. at 105-06.
6 “[I]n this context[,] the ‘essential test is one of medical
necessity and not simply that which may be considered desirable.’”
Id. at 526 n.4 (quoting Bowring v. Godwin, 551 F.2d 44, 48 (4th
Cir. 1977)).
13

condition, medical need, or risk of harm.”

Jehovah v. Clarke, 798

F.3d 169, 181-82 (4th Cir. 2015) (brackets and internal quotation
marks omitted)), cert. denied, __ U.S. __, 136 S. Ct. 1829 (2016).
Similarly, a neighboring district court has observed that, “‘[w]hen
the need for treatment is obvious, medical care which is so cursory
as to amount to no treatment at all may amount to deliberate
indifference.’”

Newbrough v. Piedmont Reg’l Jail Auth., 822 F.

Supp. 2d 558, 579-80 (E.D. Va. 2011) (quoting Mandel v. Doe, 888
F.2d 783, 789 (11th Cir. 1989)); see also Estelle, 429 U.S. at 104
n.10 (citing as example of deliberate indifference “Williams v.
Vincent, 508 F.2d 541 ([2d Cir.] 1974) (doctor’s choosing the
‘easier and less efficacious treatment’ of throwing away the
prisoner’s ear and stitching the stump may be attributable to
‘deliberate

indifference

.

.

.

rather

than

an

exercise

of

professional judgment’)” (ellipsis in original)).
Here, Plaintiff alleges that:
In the days after Defendant performed “right inguinal hernia
repair” surgery on him, Plaintiff’s “right scrotum became swollen
and painful.”

(Docket Entry 2 at 5.)

Defendant then conducted

another surgery on Plaintiff, during which he removed “a retained
distal sac.”

(Id.)

Following this surgery, Plaintiff “developed

a painful swollen hardened mass surrounding his right testicle.”
(Id.)

At

a

subsequent

evaluation,

14

Defendant

“instructed

[Plaintiff] to take ibuprofen for pain and to elevate and ice his
scrotum for swelling” and discharged Plaintiff.

(Id.)

An ultrasound conducted two days later “revealed decreased to
no blood flow to [Plaintiff’s] right testicle” (id.), prompting
prison medical personnel to “emergently contact[ Defendant]” (id.
at 6). In response to this urgent communication, Defendant “stated
that he was already aware that the blood supply to [Plaintiff’s]
testicle was diminished and there was a good chance [Plaintiff]
would lose his testicle,” and advised prison medical personnel not
to take further action.

(Id.)

Prison medical personnel followed

Defendant’s advice, informing Plaintiff “that no further action
would be taken at [Defendant’s] recommendation.”

(Id.)

That

evening, other medical personnel intervened, securing an “immediate
emergency surgical consultation and followup . . . concerning the
lack of testicular blood flow.”

(Id.)

That surgery “revealed a

necrotic right testicle which was removed.”
These

allegations

establish

a

(Id.)

claim

for

deliberate

indifference sufficient to withstand Rule 12(b)(6) dismissal.

As

an initial matter, given his alleged “aware[ness] that the blood
supply to [Plaintiff’s] testicle was diminished and there was a
good chance [Plaintiff] would lose his testicle” (id.), Defendant’s
actions in discharging Plaintiff with instructions to ice and
elevate

his

scrotum

arguably

represent

the

type

of

cursory

treatment that “may amount to deliberate indifference,” Newbrough,

15

822 F. Supp. 2d at 580 (internal quotation marks omitted).

In any

event, Defendant’s refusal to provide medical care to Plaintiff
when informed of the ultrasound results, coupled with his “counsel[
to] P.A. Kurian against tak[i]ng any further action” to rectify the
decreased testicular bloodflow (Docket Entry 2 at 6), plausibly
supports an inference of deliberate indifference because such
allegations, if true, would establish that Defendant “ignored most
[of Plaintiff’s symptoms], disregarded abnormal test results, and
failed

to

treat

any

of

[Plaintiff’s]

symptoms

effectively,”

Jehovah, 798 F.3d at 181; see also Cooper v. Dyke, 814 F.2d 941,
945 (4th Cir. 1987) (explaining that “[c]ontinued complaints by
[the inmate], or the manifest symptoms described by [a doctor],
would have put defendants on notice that additional care was
required,” and citing with approval “Miranda v. Munoz, 770 F.2d
255, 259 (1st Cir. 1985) (upholding denial of judgment n.o.v. where
‘it could be found that [the] defendants ignored a clear warning
that the medical treatment they provided for [the] plaintiff, a
pretrial detainee[,] was inadequate, allowing him to deteriorate
beyond recovery’),” and “Duncan v. Duckworth, 644 F.2d 653, 654
(7[th] Cir. 1981) (‘While the initial failure to properly diagnose
[the] plaintiff prisoner’s injury may be attributable to no more
than an error in judgment, . . . the failure to promptly schedule
surgery, once the need for it was recognized, and in the face of
[his] repeated complaints of severe pain, . . . gives rise to at

16

least an inference of deliberate indifference’)” (ellipses in
original; brackets omitted)).
In sum, construed in the light most favorable to Plaintiff and
taking all reasonable inferences in his favor, the Complaint
alleges that Defendant knowingly failed to treat his obvious,
serious medical need, which required prompt surgical intervention.7
In other words, Plaintiff “has pled facts that, if true, would
establish that [Defendant,] his doctor[,] actually kn[e]w of and
disregard[ed] an objectively serious condition, medical need, or
risk of harm.”

Jehovah, 798 F.3d at 182 (final two sets of

brackets in original; internal quotation marks omitted).

The

Complaint therefore sufficiently alleges a Section 1983 claim for
Defendant’s deliberate indifference to Plaintiff’s serious medical
needs, defeating Defendant’s 12(b)(6) contentions.
B. North Carolina Rule of Civil Procedure 9(j) Challenge
As a final matter, based on Plaintiff’s failure to comply with
North

Carolina

Rule

of

Civil

Procedure

9(j)

(“Rule

9(j)”),

Defendant seeks dismissal of any medical malpractice claim that
“Plaintiff has attempted to state.”

(Docket Entry 12 at 1.)8

7
This conclusion affords Plaintiff the benefit of the
inference
—
based
on
the
apparent
consensus
between
Dr. Tharrington, Dr. Bowen, and Dr. Fifer — that surgical
intervention could remedy the decreased testicular bloodflow.
8 Pursuant to Rule 9(j), any complaint alleging a medical
malpractice claim must either (i) contain a certification that a
person who qualifies as an expert witness under North Carolina Rule
of Evidence 702 has reviewed all reasonably available “medical
17

Plaintiff’s

Complaint

states

only

a

Section

1983

claim

for

deliberate indifference to Plaintiff’s serious medical needs. (See
Docket Entry 2 at 7 (contending that Defendant “was deliberately
indifferent

to

[Plaintiff’s]

serious

medical

violating Plaintiff’s “right to due process”).)

need,”

thereby

Because Rule 9(j)

applies solely to medical malpractice claims, see N.C. R. Civ. P.
9(j), it lacks relevance to Plaintiff’s Section 1983 claim.

See,

e.g., Deal v. Central Prison Hosp., Civ. Action No. 5:09-CT-3182,
2011 WL 322403, at *4 (E.D.N.C. Jan. 27, 2011) (dismissing medical
malpractice claim for failure to comply with Rule 9(j), but denying
Rule 12(b)(6) motion to dismiss Section 1983 claim).
In responding to Defendant’s Rule 9(j) argument, however,
Plaintiff asserts that res ipsa loquitur saves his “State Claim of
Negligence” (Docket Entry 16 at 11), thereby negating the need for
Rule 9(j) certification.

(See id. at 11-16.)

To the extent

Plaintiff’s Response attempts to amend his Complaint to add a
medical malpractice claim, that attempt fails for futility.

See

Katyle v. Penn Nat’l Gaming, Inc., 637 F.3d 462, 471 (4th Cir.
2011) (recognizing that “[f]utility is apparent if the proposed
amended complaint fails to state a claim under the applicable rules
and accompanying standards”).

records pertaining to the alleged negligence” and “is willing to
testify that the medical care did not comply with the applicable
standard of care” or (ii) “allege[] facts establishing negligence
under the existing common-law doctrine of res ipsa loquitur.” N.C.
R. Civ. P. 9(j)(1)-(3).
18

“[T]he doctrine of res ipsa loquitur . . . permits a fact
finder ‘to

infer

negligence from

the mere

occurrence

of

accident itself’ based on common knowledge or experience.”

the

Wright

v. United States, 280 F. Supp. 2d 472, 481 (M.D.N.C. 2003) (quoting
Diehl v. Koffer, 140 N.C. App. 375, 378, 536 S.E.2d 359, 362
(2000)).

This doctrine “is ‘addressed to those situations where

the facts or circumstances accompanying an injury by their very
nature raise a presumption of negligence on the part of [the]
defendant.’” Wood v. United States, No. 1:14cv1004, __ F. Supp. 3d
__, __, 2016 WL 3962618, at *7 (M.D.N.C. July 21, 2016) (brackets
in original) (quoting Robinson v. Duke Univ. Health Sys., 229 N.C.
App. 215, 224, 747 S.E.2d 321, 329 (2013)).

Given in part the

complexity and inherent risks of most medical treatments, see
Wright, 280 F. Supp. 2d at 481, res ipsa loquitur “rarely applies
in medical malpractice actions,” Wood, __ F. Supp. 3d at __, 2016
WL 3962618, at *7.

Instead, it remains reserved for “medical

malpractice actions in which the ‘common knowledge, experience and
sense of laymen qualifies them to conclude that [the relevant]
medical injuries are not likely to occur if proper care and skill
is used.’”

Wright, 280 F. Supp. 2d at 482 (quoting Grigg v.

Lester, 102 N.C. App. 332, 335, 401 S.E.2d 657, 659 (1991)).

These

situations include “injuries involving gross negligence, such as
surgical instruments left in the patient’s body, and injuries

19

obviously

remote

from

the

site

of

a

surgery.”

Id.

at

481

(citations omitted).
Here, Plaintiff alleges the loss of his right testicle from
decreased bloodflow following surgery that Defendant conducted to
repair Plaintiff’s right inguinal hernia.
15; see generally Docket Entry 2 at 5-7.)
knowledge

does

not

encompass

whether

(See Docket Entry 16 at
A layperson’s common
constrained

bloodflow

represents an inherent risk of inguinal hernia surgery (or, for
that matter, whether any particular post-surgery treatment would
remedy any bloodflow issue).

Compare Diehl, 140 N.C.App. at 380,

536 S.E.2d at 363 (“This Court does not believe[] that the proper
standard of care or surgical procedure for gallbladder removal nor
its attendant risks are within the common knowledge or experience
of a jury.”), and Grigg, 102 N.C. App. at 335, 401 S.E.2d at 659
(“[T]he cause of tears that occur in the uterus during the process
of delivering a child by c[a]esarean section is not generally known
to laymen.”), with Robinson, 229 N.C. App. at 229, 747 S.E.2d at
332 (“[A]n understanding of the requisite techniques employed
during the [colectomy] procedure is not required for a layman to
determine that [the plaintiff’s] small intestine should not have
been connected to her vagina during the procedure and that such an
anatomical result following surgery does not normally occur in the
absence of negligence.”).

Thus, because “an understanding of the

procedures involved and the proper techniques to be employed during

20

th[e hernia repair] procedures [i]s necessary for a determination
by the jury as to whether the injury at issue in [this] case could
have occurred in the absence of some negligence by the defendant
health care provider,” Robinson, 229 N.C. App. at 229, 747 S.E.2d
at 332, res ipsa loquitur does not apply to Plaintiff’s proposed
medical malpractice claim.
Accordingly, Plaintiff’s proposed medical malpractice claim
requires Rule 9(j) certification. See N.C. R. Civ. P. 9(j)(1)-(2).
Plaintiff has neither provided nor suggested he could provide such
certification (see Docket Entry 16 at 11-17), rendering futile
Plaintiff’s
1:12cv154,

proposed
2013

WL

amendment.
1010473,

at

See
*8

Graves

(M.D.N.C.

v.

Andrews,

Mar.

14,

No.

2013)

(granting motion to dismiss medical malpractice claim for failure
to comply with Rule 9(j) certification requirements), aff’d, 539 F.
App’x 157 (4th Cir. 2013); see also Smith v. Bank of the Carolinas,
No. 1:11cv1139, 2012 WL 4848993, at *3 (M.D.N.C. Oct. 11, 2012)
(observing that a proposed amendment fails for futility if it could
not survive a Rule 12(b)(6) motion to dismiss (citing United States
ex rel. Wilson v. Kellogg Brown & Root, Inc., 525 F.3d 370, 376
(4th Cir. 2008))).
CONCLUSION
The striking of Plaintiff’s Response would serve no purpose.
To the extent, however, that Plaintiff seeks to add a medical
malpractice claim via the Response, his proposed claim remains

21

subject to Rule 9(j)’s certification requirement and thus fails for
futility.

Finally, the Complaint sufficiently alleges a Section

1983 deliberate indifference claim against Defendant.
IT IS THEREFORE ORDERED that the Motion to Strike (Docket
Entry 18) is DENIED.
IT IS RECOMMENDED that the Motion to Dismiss (Docket Entry 12)
be denied.
This 30th day of December, 2016.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge

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