GUNTER v. SOUTHERN HEALTH PARTNERS, INC. et al
Filing
74
MEMORANDUM OPINION AND ORDER signed by CHIEF JUDGE WILLIAM L. OSTEEN, JR on 03/30/2017, that the Motion to Dismiss filed by Defendants North Carolina Department of Health and Human Services and Rick Brajer (Doc. 35 ) is GRANTED and that all claims asserted against DHHS and the Secretary in her official capacity are DISMISSED WITHOUT PREJUDICE. FURTHER that all claims against Rick Brajer in his individual capacity are DISMISSED WITHOUT PREJUDICE.(Taylor, Abby)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
DAVID RAY GUNTER,
)
)
Plaintiff,
)
)
v.
)
)
SOUTHERN HEALTH PARTNERS, INC., )
et al.,
)
)
Defendants.
)
1:16CV262
MEMORANDUM OPINION AND ORDER
OSTEEN, JR., District Judge
This matter is before the court on a Motion to Dismiss
filed by Defendants North Carolina Department of Health and
Human Services and Rick Brajer1 (collectively “Moving
Defendants”). (Doc. 35.) Plaintiff filed a response in
opposition (Docs. 47, 48), and Moving Defendants filed a reply
(Doc. 49). This matter is now ripe for resolution, and for the
reasons stated below, Moving Defendants’ motion to dismiss will
be granted.
Effective January 13, 2017, Mandy K. Cohen, MD, MPH was
appointed as the Secretary of the North Carolina Department of
Health and Human Services. Secretary Cohen is the successor to
former Secretary Rick Brajer. Pursuant to Fed. R. Civ. P. 25(d),
Secretary Cohen is automatically substituted as a party
defendant for all claims asserted against Rick Brajer in his
official capacity as former Secretary of the North Carolina
Department of Health and Human Services. (See Doc. 69.)
1
I.
PROCEDURAL HISTORY
Plaintiff commenced the present action in the Randolph
County Superior Court Division of the State of North Carolina by
filing a Complaint on November 25, 2015. (Doc. 23.) Plaintiff
filed an Amended Complaint in this matter on March 3, 2016.
(Doc. 26.) A Petition for Removal to this court was filed on
April 1, 2016. (Doc. 1.) Defendants North Carolina Department of
Health and Human Services (“DHHS”) and the Secretary of DHHS
(“the Secretary”), filed the present motion to dismiss on
April 29, 2016. (Doc. 35.) Thereafter, Plaintiff filed a motion
for leave to amend and to add a party defendant (Doc. 51), which
this court granted (Doc. 56). However, in light of the limited
nature of the amended complaint, this court ordered that the
motion to dismiss filed by DHHS and the Secretary would be
considered in response to the Second Amended Complaint (Doc.
57), but permitted the parties to request additional briefing.
(Id.) DHHS and the Secretary filed a supplemental reply stating
that the issues had been fully briefed and no additional
briefing was needed. (Doc. 60.) On March 20, 2017, a hearing was
held before this court on the motion to dismiss filed by DHHS
and the Secretary. This matter is now ripe for adjudication.
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II.
BACKGROUND
Plaintiff was diagnosed with a heart defect as an infant.
(Second Amended Complaint (“Second Am. Compl.”) (Doc. 57) ¶ 79.)
Plaintiff had surgeries and required substantial medical
attention throughout his life for his heart condition. (Id.
¶¶ 79-82.) Plaintiff’s physicians prescribed medication to
maintain his heart health and circulatory system, including
Coumadin, an anticoagulant. (Id. ¶ 83.) The prescribed
medications are essential in maintaining Plaintiff’s health.
(Id. ¶ 84.) Plaintiff must take regular doses of his
medications, including Coumadin, to maintain levels of the
medicine at a therapeutic level. (Id. ¶¶ 85-87.) Plaintiff took
his Coumadin dose at a set hour every day and did not suffer
serious complications from his heart condition provided he
faithfully observed his physicians’ instructions. (Id. ¶ 88.)
On November 6, 2012, Plaintiff was arrested in Forsyth
County, North Carolina, on a charge for failure to appear in
Davie County, North Carolina, for a Driving While License
Revoked. (Id. ¶ 89.) Plaintiff remained in Forsyth County that
night. (Id.) When Plaintiff arrived at the Forsyth County local
confinement facility, he completed a medical intake form
disclosing that he had a heart condition and took Coumadin
daily, along with other medications. (Id. ¶ 90.)
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On November 7, 2012, Plaintiff was transferred to the Davie
County local confinement facility. (Id. ¶ 92.) At the Davie
County local confinement facility, Plaintiff completed another
intake form disclosing that he had a replacement aortic valve
and a history of heart stents. (Id. ¶ 93.) Plaintiff met with
Defendant Fran Jackson (“Jackson”), to whom he disclosed his
heart condition. (Id. ¶ 94.) Jackson listened to Plaintiff’s
heart with a stethoscope, commenting “That’s what you say,” or
words to that effect. (Id.)
On November 8, 2012, Plaintiff’s daughter delivered a small
supply of Plaintiff’s medications, including Coumadin, to the
Davie County local confinement facility. (Id. ¶ 95.) Plaintiff
believes that Jackson refused to administer the medication
delivered by his daughter, with Jackson stating “I don’t know if
your wife or daughter is a meth cook.” (Id. ¶ 97.) Plaintiff
believes a document was delivered to Davie County local
confinement facility stating Plaintiff takes 7 mg of Coumadin by
mouth daily. (Id. ¶ 98.)
On November 13, 2012, Plaintiff’s blood was drawn and
tested for INR levels, which showed Plaintiff’s coagulant level
at 1.07, considered to be a baseline level and below the
therapeutic level specified for Plaintiff, indicating that
Plaintiff did not receive proper Coumadin doses for several days
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prior to the test. (Id. ¶ 99.) Plaintiff did not receive proper
doses of Coumadin in a timely manner while confined at the Davie
County local confinement facility despite making efforts to
advise and alert all appropriate officials to his medical
condition and need for medical care. (Id. ¶¶ 100-01.) Plaintiff
asserts that “Defendants” had actual knowledge of Plaintiff’s
medical condition and need for medical care, but withheld
necessary medical care from Plaintiff. (Id. ¶ 102.) Plaintiff
asserts “Defendants” had policies and procedures in place at the
Davie County local confinement facility that were designed to,
or operated to, deprive Plaintiff of medical care. (Id. ¶ 103.)
Plaintiff was transferred from the Davie County local
confinement facility to the Stokes County local confinement
facility on November 16, 2012. (Id. ¶ 104.) Plaintiff believes
that Jackson created a transfer form dated November 15, 2012,
which noted that Plaintiff was to receive medications, including
Coumadin, and that Plaintiff was scheduled to have an INR blood
test on November 23, 2012. (Id. ¶ 105.) On November 16, 2012, an
intake form was completed for Plaintiff at Stokes County local
confinement facility, which specified Coumadin doses and timing
that differed from the transfer form completed by Jackson. (Id.
¶ 106.)
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The records provided to Plaintiff in response to his
requests to Sheriff Stokes and to Sheriff Marshall reflect that
no Coumadin was administered to Plaintiff on November 16, 17, or
18 of 2012. (Id. ¶ 107.) “Emergency” doses of Coumadin were
administered to Plaintiff beginning November 19, 2012. (Id.
¶ 108.) Nothing in “the records” reflects that any licensed M.D.
was ever consulted by anyone at the Stokes County local
confinement facility or that Plaintiff was ever permitted to
have an examination or consultation with a licensed M.D. during
this medical emergency. (Id. ¶ 109.) Nothing in “the records”
reflects that the “emergency” doses of Coumadin administered to
Plaintiff at the Stokes County local confinement facility were
prescribed by any licensed M.D. (Id. ¶ 110.) Nothing in “the
records” reflects how the determination to administer Coumadin
was made or under whose supervision such determinations were
made. (Id. ¶ 111.)
Plaintiff alleges that at all times, “defendants” had a
duty to Plaintiff to maintain and preserve accurate records
relating to Plaintiff’s medical care, but failed to discharge
this duty. (Id. ¶ 112.) Plaintiff alleges that during and in
response to Plaintiff’s medical emergency, “defendants” had a
duty to provide access to a licensed M.D., but deliberately
withheld access to necessary and appropriate care by a licensed
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M.D., “exhibiting deliberate indifference to plaintiff’s medical
needs, and in violation of the statutory duties and obligations
set out hereinabove.” (Id. ¶ 113.)
Plaintiff was released from Stokes County local confinement
facility on November 21, 2012. (Id. ¶ 114.) During the
Thanksgiving holiday, Plaintiff developed severe abdominal pain
and began perspiring profusely. (Id. ¶ 115.) Plaintiff went to
Wake Forest Baptist Medical Center for evaluation, where
physicians determined that the interruptions in Coumadin that
occurred while Plaintiff was confined at the Davie County and
Stokes County local confinement facilities caused Plaintiff to
develop blood clots which migrated to his gastrointestinal
tract, creating intestinal blockages. (Id. ¶ 116.)
Removal of the blood clots and blockages required emergency
surgery on November 29, 2012. (Id. ¶ 117.) Additional blood
clotting was removed through surgery on January 19, 2013. (Id.
¶ 118.) Fissures formed at the sites of incision in Plaintiff’s
intestines and colon where the blood clots were removed. (Id.
¶ 119.) On July 3, 2013, the fissures in Plaintiff’s intestines
and colon erupted, causing severe medical complications and
injuries. (Id. ¶ 120.) A portion of Plaintiff’s bowel was
removed as a result of these events. (Id. ¶ 121.) Plaintiff has
suffered one or more strokes as a result of the interruption in
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Coumadin that occurred while he was confined at the Davie County
and Stokes County local confinement facilities. (Id. ¶ 122.)
Plaintiff suffered pain, loss of quality of life, reduced life
expectancy, medical expense, and anticipated future medical
expense as a result. (Id. ¶ 123.) Plaintiff alleges that
“defendants” acted with deliberate indifference to Plaintiff’s
medical needs, and knowingly, deliberately and intentionally
violated statutory duties and Plaintiff’s constitutional rights
to medical care while Plaintiff was a prisoner or detainee. (Id.
¶ 124.)
Plaintiff alleges that DHHS and the Secretary have duties
and responsibilities to prisoners to prescribe minimum statewide
standards to guide and assist local governments in developing
programs that provide for the humane treatment of prisoners and
detainees. (Id. at 7.) Plaintiff further alleges that DHHS and
the Secretary are required to inspect local confinement
facilities, including in Davie County and Stokes County,
semiannually to investigate the conditions of confinement and
determine whether the facilities meet published minimum
standards. (Id. at 8.)
Plaintiff alleges that DHHS and the Secretary failed to
perform their statutory duties under N.C. Gen. Stat. § 153A and
other statutory, administrative and regulatory laws and that
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such conduct was a proximate cause of the injuries and damages
suffered by Plaintiff. (Id. at 30.) Plaintiff also alleges that
DHHS and the Secretary knew, or had reason to know, that the
system for providing medical care to prisoners in local
confinement facilities was ineptly provided by local officials,
yet they failed to take timely action to eliminate the risks to
prisoners and detainees. (Id. at 34-35.) Plaintiff alleges the
following claims for relief against DHHS and the Secretary:
first claim for injunction; second claim for negligence under
N.C. Gen. Stat. § 153A; eighth claim for negligent supervision;
eleventh claim for false imprisonment; twelfth claim for
intentional infliction of emotional distress; thirteenth claim
pursuant to 43 U.S.C § 1983; and sixteenth claim for medical
malpractice. (Id. at 28-30, 34-35, 37-41.)
III. LEGAL STANDARDS
The existence of subject matter jurisdiction is a threshold
issue the court must address before considering the merits of
the case. Jones v. Am. Postal Workers Union, 192 F.3d 417, 422
(4th Cir. 1999). The burden of proving subject matter
jurisdiction is on the party asserting jurisdiction. Richmond,
Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d
765, 768 (4th Cir. 1991) (citing Adams v. Bain, 697 F.2d 1213,
1219 (4th Cir. 1982)). Courts “should dismiss a complaint for
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lack of subject matter jurisdiction pursuant to Rule 12(b)(1) if
the complaint fails to allege facts upon which subject matter
jurisdiction can be based or if jurisdictional allegations in
the complaint are not true.” McLaughlin v. Safway Servs., LLC,
429 F. App’x. 347, 348 (4th Cir. 2011); Adams, 697 F.2d at
1219 (outlining two ways lack of subject matter jurisdiction
arises: failure “to allege facts upon which subject matter
jurisdiction can be based” or when “the jurisdictional
allegations of the complaint were not true”).
It is undisputed that Plaintiff asserted federal claims and
that this case was removed based upon federal claim
jurisdiction. See 28 U.S.C. § 1331; (Removal Notice (Doc. 1) at
5.) As a result, removal and this court’s subject matter
jurisdiction pursuant to 28 U.S.C. § 1331 are not in dispute.
However, DHHS and the Secretary charge additional jurisdictional
issues for which the burden to establish jurisdiction is on
Plaintiff. See Richmond, 945 F.2d at 768 (“When a Rule 12(b)(1)
motion challenge is raised to the factual basis for subject
matter jurisdiction, the burden of proving subject matter
jurisdiction is on the plaintiff.”). The district court should
grant the Rule 12(b)(1) motion to dismiss “only if the material
jurisdictional facts are not in dispute and the moving party is
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entitled to prevail as a matter of law.” Richmond, 945 F.2d at
768.
In analyzing a motion to dismiss under Rule 12(b)(6) of the
Federal Rules of Civil Procedure for “failure to state a claim
upon which relief can be granted,” a court must determine
whether the complaint is legally and factually sufficient.
See Ashcroft v. Iqbal, 556 U.S. 662 (2009); Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). To survive a Rule 12(b)(6)
motion, a plaintiff must allege “sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible
on its face.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S.
at 570). For a claim to be facially plausible, a plaintiff must
“plead[] factual content that allows the court to draw the
reasonable inference that the defendant is liable.” Id. (citing
Twombly, 550 U.S. at 556). The mere possibility that a defendant
acted unlawfully is not sufficient for a claim to survive a
motion to dismiss. Iqbal, 556 U.S. at 678. When ruling on a Rule
12(b)(6) motion, a court must accept the complaint’s factual
allegations as true. Id.
However, a court does not have to
accept as true mere legal conclusions, and “[t]hreadbare
recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Id. (citing Twombly, 550
U.S. at 555).
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IV.
ANALYSIS
As an initial matter, this court notes that during the
motions hearing held on March 20, 2017, Moving Defendants and
Plaintiff stipulated to the dismissal of any and all claims
asserted against Rick Brajer in his individual capacity. As
such, any claims asserted by Plaintiff against Rick Brajer in
his individual capacity will be dismissed without prejudice.
A.
Eleventh Amendment Immunity and the Doctrine of
Sovereign Immunity
DHHS and the Secretary argue that the Eleventh Amendment
and the doctrine of sovereign immunity bar Plaintiff’s claims
against them. (Doc. 36 at 4-5.) Plaintiff argues that DHHS and
the Secretary waived their immunity by consenting to removal to
this court in the Petition for Removal. (Doc. 48 at 7-8.) DHHS
and the Secretary respond that the State of North Carolina
waived immunity from suit in tort claims to the extent provided
for by N.C. Gen. Stat. § 143-291 et seq. (“Tort Claims Act”).
(Doc. 49 at 2-3.) They argue, however, that their consent to
removal did not waive “sovereign immunity with respect to the
various non-tort claims asserted against them,” further arguing
that this court has jurisdiction to determine whether such
immunity bars Plaintiff’s state claims against them and whether
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such immunity bars Plaintiff’s claims pursuant to 42 U.S.C.
§ 1983. (Id.)
The doctrine of sovereign immunity is “based on the logical
and practical ground that there can be no legal right as against
the authority that makes the law on which the right depends.”
Nevada v. Hall, 440 U.S. 410, 416 (1979) (internal quotation
marks omitted). The States’ immunity from suit is sometimes
referred to as Eleventh Amendment Immunity. The Eleventh
Amendment provides that “[t]he Judicial power of the United
States shall not be construed to extend to any suit in law or
equity, commenced or prosecuted against one of the United States
by Citizens of another State, or by Citizens or Subjects of any
Foreign State.” U.S. Const. amend. XI. However, “the sovereign
immunity of the States neither derives from, nor is limited by,
the terms of the Eleventh Amendment.” Alden v. Maine, 527 U.S.
706, 713 (1999). Rather, “States' immunity from suit is a
fundamental aspect of the sovereignty which the States enjoyed
before the ratification of the Constitution.” Id. The Eleventh
Amendment “confirmed . . . sovereign immunity as a
constitutional principle,” id. at 728-29, and is “but an example
of state sovereign immunity.” Stewart v. North Carolina, 393
F.3d 484, 488 (4th Cir. 2005). Therefore, the State “may not be
sued in its own courts or elsewhere unless it has consented by
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statute to be sued or has otherwise waived its immunity from
suit.” Welch Contracting, Inc. v. N.C. Dep't of Transp., 175
N.C. App. 45, 51, 622 S.E.2d 691, 695 (2005) (quoting Battle
Ridge Cos. v. N.C. Dep’t of Transp., 161 N.C. App. 156, 157, 587
S.E.2d 426, 427 (2003)).
Here, it is not disputed that DHHS is an agency of the
State of North Carolina. Because DHHS is an agent of the State,
it follows that the Secretary is also an agent of the State, and
they each have immunity unless waived. See Carter v. Stanly
Cty., 123 N.C. App. 235, 237-38, 472 S.E.2d 378, 380-81 (1996);
Green v. Kearney, 203 N.C. App. 260, 268, 690 S.E.2d 755, 762
(2010). DHHS and the Secretary admit that the State of North
Carolina has waived immunity from suit in tort claims to the
extent provided for by the Tort Claims Act. (Doc. 49 at 3.) This
statutory waiver of sovereign immunity means the State may “be
sued only in the manner and upon the terms and conditions
prescribed” in the statute. Kawai Am. Corp. v. Univ. of N.C. at
Chapel Hill, 152 N.C. App. 163, 165, 567 S.E.2d 215, 217 (2002).
The Tort Claims Act provides a limited waiver of State
sovereign immunity for negligence actions against public
officers when acting in their official capacity. Id. at 165-66,
567 S.E.2d at 217; Green, 203 N.C. App. at 268-69, 690 S.E.2d at
762. The Tort Claims Act also establishes that the appropriate
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forum for such suits against “departments, institutions and
agencies of the State” is the North Carolina Industrial
Commission. Carter, 123 N.C. App. at 238-39, 472 S.E.2d at
380-81. Consequently, Plaintiff’s claims based on negligence can
be pursued, but they must be pursued before the Industrial
Commission, and will therefore be dismissed from this matter.
See Guthrie v. N.C. State Ports Auth., 307 N.C. 522, 540-41, 299
S.E.2d 618, 628 (1983).
Although the Tort Claims Act authorizes recovery for
negligent torts, see N.C. Gen. Stat. § 143-291, intentional
torts committed by agents and officers of the State are not
compensable under the Tort Claims Act. Kawai Am. Corp., 152 N.C.
App. at 166, 567 S.E.2d at 217-18 (citation omitted).
Plaintiff’s eleventh claim for false imprisonment and twelfth
claim for intentional infliction of emotional distress are
intentional torts. See Restatement (Second) of Torts §§ 35, 46
(1965). Because the State has not waived sovereign immunity for
intentional torts by action of the Tort Claims Act or other
statute, and because DHHS and the Secretary did not waive
immunity by removal to this court as discussed below,
Plaintiff’s claims for false imprisonment and intentional
infliction of emotional distress are barred by the doctrine of
sovereign immunity. See Frazier v. Murray, 135 N.C. App. 43, 48,
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519 S.E.2d 525, 528-29 (1999) (holding that dismissal of claims
for false imprisonment and intentional infliction of emotional
distress were proper because “[i]njuries intentionally inflicted
by employees of a state agency are not compensable under the
Tort Claims Act”); Kawai Am. Corp., 152 N.C. App. at 165–67, 567
S.E.2d at 217–18.
Although the State waived immunity to the extent provided
for by the Tort Claims Act, the question remains whether DHHS
and the Secretary waived immunity for Plaintiff’s other claims
by joining in the Petition for Removal. “The Supreme Court
repeatedly has admonished that ‘[t]he test for determining
whether a State has waived its immunity from federal-court
jurisdiction is a stringent one.’” In re Sec'y of Dep't of Crime
Control & Pub. Safety, 7 F.3d 1140, 1145 (4th Cir. 1993)
(quoting Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 241
(1985)). In accordance with the decision in Stewart, this court
finds that DHHS and the Secretary did not waive immunity by
consenting to the removal of the action to federal court for
resolution of the immunity question. See Stewart, 393 F.3d at
490 (holding that the State “did not waive sovereign immunity by
voluntarily removing the action to federal court for resolution
of the immunity question”).
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In addition to the state claims discussed above, Plaintiff
also seeks recovery pursuant to 42 U.S.C. § 1983 in his
thirteenth claim for relief, wherein he alleges that he “has
suffered damages in an amount exceeding twenty-five thousand
dollars.” (Second Am. Compl. (Doc. 57) at 38.) In Will v. Mich.
Dep’t of State Police, the Supreme Court held that the Eleventh
Amendment bars § 1983 suits against a state unless the state has
waived its immunity. 491 U.S. 58, 66-67 (1989); see also
Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100
(1984) (“It is clear, of course, that in the absence of consent
a suit in which the State or one of its agencies or departments
is named as the defendant is proscribed by the Eleventh
Amendment.”). This immunity extends to governmental entities
that are considered “arms of the State” for Eleventh Amendment
purposes. Will, 491 U.S. at 70. Again, it is not disputed that
DHHS is an agency of the State of North Carolina, and this court
has found that DHHS did not waive its sovereign immunity by
consenting to removal in this case.
With respect to state officials sued in their official
capacity, such as the Secretary, the Supreme Court concluded
that “a suit against a state official in his or her official
capacity is not a suit against the official but rather is a suit
against the official's office. As such, it is no different from
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a suit against the State itself.” Id. at 71 (citing Brandon v.
Holt, 469 U.S. 464, 471 (1985), Kentucky v. Graham, 473 U.S.
159, 165-66 (1985), and Monell v. Dep't of Soc. Servs., 436 U.S.
658, 690 n.55 (1978)). Here, a suit against the Secretary in his
official capacity is no different than a suit against DHHS.
Furthermore, it is well settled that “a suit by private
parties seeking to impose a liability which must be paid from
public funds in the state treasury is barred by the Eleventh
Amendment.” Edelman v. Jordan, 415 U.S. 651, 663 (1974). “It is
[also] well settled that the Eleventh Amendment bars a suit by
private parties to recover money damages from the state or its
alter egos acting in their official capacities . . . [and] bars
. . . § 1983 damage claims.” Huang v. Bd. of Governors of Univ.
of N.C., 902 F.2d 1134, 1138 (4th Cir. 1990). Moreover, “neither
a State nor its officials acting in their official capacities
are ‘persons’ under § 1983” and thus do not fall within the
purview of § 1983 for recovery of money damages. Will, 491 U.S.
at 71.
However, in distinguishing Plaintiff’s claim for monetary
damages under § 1983 from his claim for injunctive relief, the
Supreme Court has said that, “a state official in his or her
official capacity, when sued for injunctive relief, would be a
person under § 1983 because ‘official-capacity actions for
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prospective relief are not treated as actions against the
State.’” Id. n.10 (quoting Kentucky, 473 U.S. at 167, n.14).
Based on the reasoning above, this court finds that DHHS
and the Secretary in his official capacity did not waive their
sovereign immunity and may not be held liable for monetary
damages pursuant to § 1983. To the extent Plaintiff's claim for
injunctive relief against the Secretary in his official capacity
survives this basis for dismissal, this court will address that
claim below. See Ex parte Young, 209 U.S. 123, 159-60 (1908)
(limited exception to Eleventh Amendment immunity is applicable
only when plaintiffs allege an ongoing violation of federal
law).
Finally, this court notes that DHHS has a duty under North
Carolina law to develop minimum standards for the operation of
local confinement facilities and to visit and inspect each
facility at least semi-annually. N.C. Gen. Stat. §§ 153A-221,
222. The methods for enforcing the minimum standards are set out
in § 153A-223, and provide that “if the Secretary determines
that conditions in the facility jeopardize the safe custody,
safety, health, or welfare of persons confined in the facility,
the Secretary may order corrective action or close the
facility.” N.C. Gen. Stat. § 153A-223. The Fourth Circuit has
concluded that § 153A-223 does not vest officials with a
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mandatory duty to remedy substandard jail conditions, thus
“their inaction cannot be seen as a cause of those conditions
and a § 1983 suit cannot be maintained against them.” Reid v.
Kayye, 885 F.2d 129, 131 (4th Cir. 1989).2
It is well settled that 42 U.S.C. § 1983 provides
a remedy for conduct of state officials only if that
conduct causes the deprivation of a federally
protected right. Monell v. Department of Social
Services of the City of New York, 436 U.S. 658, 98
S. Ct. 2018, 56 L.Ed.2d 611 (1978). Because, in the
case at bar, appellees had no duty to remedy the
challenged jail conditions, their inaction cannot be
seen as a cause of those conditions and a § 1983 suit
cannot be maintained against them.
Id. The Fourth Circuit further held in Reid that supervisory
liability cannot extend to state officials when the state duty
“is not accompanied by an obligation to extirpate
constitutionally substandard conditions or activities that may
Plaintiff relies in his brief on Multiple Claimants v.
N.C. Dep’t of Health and Human Servs., 361 N.C. 372, 646 S.E.2d
356 (2007) in arguing that N.C. Gen. Stat. § 153A-220 creates a
special relationship of DHHS to prisoners and detainees. (Doc.
48 at 17-18.) While Multiple Claimants is binding upon this
court as the North Carolina Supreme Court’s interpretation of
state law, Multiple Claimants was limited in its analysis to the
public duty defense under state law. See id. (“The question
before us concerns the application of the public duty doctrine
to the statutorily-imposed duty of the Department of Health and
Human Services . . . to inspect local confinement
facilities. . . . [W]e hold that plaintiffs may pursue their
negligence claims against DHHS.”). Multiple Claimants does not
address the statutory responsibilities as a matter of
Constitutional law, nor does it mention N.C. Gen. Stat. § 153A223. This court therefore finds Reid controlling and not
inconsistent with Multiple Claimants.
2
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be encountered.” Id. at 132. For these reasons, Plaintiff’s
§ 1983 claim will be dismissed.
B.
Claim for Injunctive Relief
DHHS and the Secretary argue, inter alia, that the claim
for injunction is moot because Plaintiff was released from the
Davie County and Stokes County local confinement facilities in
2012, and there is no allegation that he has reentered either
facility. (Doc. 36 at 16-17.) “[A]s a general rule, a prisoner's
transfer or release from a particular prison moots his claims
for injunctive and declaratory relief with respect to his
incarceration there.” Rendelman v. Rouse, 569 F.3d 182, 186 (4th
Cir. 2009). The reasoning is that:
Once an inmate is removed from the environment in
which he is subjected to the challenged policy or
practice, absent a claim for damages, he no longer has
a legally cognizable interest in a judicial decision
on the merits of his claim. Any declaratory or
injunctive relief ordered in the inmate's favor in
such situations would have no practical impact on the
inmate's rights and would not redress in any way the
injury he originally asserted. . . . [There is] no
further need for such declaratory or injunctive
relief, for he is free of the policy or practice that
provoked his lawsuit in the first place.
Incumaa v. Ozmint, 507 F.3d 281, 287 (4th Cir. 2007). Because
Plaintiff was released from the Davie County and Stokes County
local confinement facilities in 2012, and appears to have
remained out of confinement since that time, entering an
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injunction in the manner sought by Plaintiff would not
personally benefit Plaintiff or redress in any way the injury he
originally asserted.
Plaintiff does not dispute that he is no longer in custody,
but argues that his injunctive relief claim is not moot because
it “is capable of repetition but likely to escape review.” (Doc.
48 at 19.) “In the absence of a class action, jurisdiction on
the basis that a dispute is capable of repetition, yet evading
review is limited to the exceptional situation.” Incumaa, 507
F.3d at 289 (internal quotation marks omitted) (citing Los
Angeles v. Lyons, 461 U.S. 95, 109 (1983)). This narrow
exception is one in which “(1) the challenged action is in its
duration too short to be fully litigated prior to cessation or
expiration; and (2) there is a reasonable expectation that the
same complaining party will be subject to the same action
again.” Williams v. Ozmint, 716 F.3d 801, 809–10 (4th Cir. 2013)
(quoting Lux v. Judd, 651 F.3d 396, 401 (4th Cir. 2011) and Fed.
Election Comm'n v. Wisc. Right to Life, Inc., 551 U.S. 449, 462
(2007)). Because Plaintiff is seeking to invoke this exception,
he bears the burden of demonstrating that it applies. Incumaa,
507 F.3d at 289 (citing Brooks v. Vassar, 462 F.3d 341, 348 (4th
Cir. 2006)).
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Here, Plaintiff does not offer any authority to support his
argument that this exception applies but relies on the assertion
that “a detainee might be denied medication . . . should they
become entangled with a local confinement facility that has
contracted with SHP [Southern Health Partners, Inc.].” (Doc. 48
at 19-20.) This is not enough for Plaintiff to meet his burden.
Plaintiff’s argument that his claim is capable of repetition
rests on mere speculation of a hypothetical detainee at an
unspecified confinement facility. “[A] federal court has neither
the power to render advisory opinions nor ‘to decide questions
that cannot affect the rights of litigants in the case before
them.’” Preiser v. Newkirk, 422 U.S. 395, 401 (1975)
(quoting North Carolina v. Rice, 404 U.S. 244, 246 (1971)).
Additionally, there is nothing in the record to indicate
that Plaintiff would be subject to the confinement facility
policies again absent some culpable conduct on his part
requiring confinement. See Williams, 716 F.3d at 810; Incumaa,
507 F.3d at 289. Assuming that Plaintiff will partake in
behavior causing him to again be detained in the Davie County or
Stokes County local confinement facilities is not appropriate
for this analysis. “Such conjecture as to the likelihood of
repetition has no place in the application of this exceptional
and narrow grant of judicial power . . . . There must be a
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‘demonstrated probability’ that the challenged action will recur
again, and to the same complainant.” Incumaa, 507 F.3d at 289
(internal citations and quotation marks omitted). While it is
conceivable that Plaintiff could again be detained at the Davie
County or Stokes County local confinement facilities, there is
nothing to prevent him from seeking injunctive or declaratory
relief then. Plaintiff has demonstrated nothing more than
speculation – not a reasonable expectation. Therefore, this
court finds that the narrow exception of “capable of repetition,
yet evading review” does not apply in this case, and Plaintiff’s
claim for injunctive relief is moot.
V.
CONCLUSION
For the reasons set forth herein, IT IS HEREBY ORDERED that
the Motion to Dismiss filed by Defendants North Carolina
Department of Health and Human Services and Rick Brajer (Doc. 35)
is GRANTED and that all claims asserted against DHHS and the
Secretary in her official capacity are DISMISSED WITHOUT
PREJUDICE. IT IS FURTHER ORDERED that all claims against Rick
Brajer in his individual capacity are DISMISSED WITHOUT PREJUDICE.
This the 30th day of March, 2017.
_______________________________________
United States District Judge
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