SEELIG v. PERRY

Filing 103

MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE JOE L. WEBSTER on 8/10/2020, that Defendants' Motion for Summary Judgment (Docket Entry 98 ) be GRANTED and that Judgement be entered dismissing this action. (Garland, Leah)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
PAUL EVAN SEELIG,
Plaintiff,
v.
FRANK L. PERRY, et al.,
Defendants.

)
)
)
)
)
)
)
)
)

1:16CV1166

MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
This matter comes before the Court on Defendants Frank Perry, George Solomon,
Paula Smith, Anita Wilson, Wanda Kendrick, Carolyn Adams, Lisa Barnard, Larry Callicut, and
Chandra Ransom’s (collectively, “Moving Defendants”) Motion for Summary Judgment.
(Docket Entry 98.)
I.

BACKGROUND
Plaintiff, a pro se litigant and former prisoner of the State of North Carolina, initiated

this action on September 22, 2016 by filing a complaint against numerous defendants.1

Moving Defendants constitute about half of the named defendants in this action. (See
Complaint ¶¶ 4-25, Docket Entry 2.) The complaint alleges that Moving Defendants held a variety
of positions at relevant times. Defendant Perry was the Secretary of the North Carolina Department
of Public Safety (“NCDPS”). (Id. ¶ 4, Docket Entry 2.) Defendant Solomon was the Director of
NCDPS. (Id. ¶ 5.) Defendant Smith was the chief medical director of NCDPS. (Id. ¶ 6.) Defendant
Wilson was a physician at Central Prisoner Regional Medical Center. (Id. ¶ 9.) Defendant Kendrick
was a nursing supervisor at Randolph Correctional Center. (Id. ¶ 16; Answer of Adams, Bernard,
Kendrick, and Ransome ¶ 16, Docket Entry 42.) Defendant Adams was a nurse at Randolph
Correctional Center. (Compl. ¶ 17.) Defendant Barnard is also a nurse at Randolph Correctional
Center. (Id. ¶ 18.) Defendant Callicut was an Assistant Superintendent at Randolph Correctional
Center. (Id. ¶ 21.) Defendant Ransom was the Superintendent at Randolph Correctional Center. (Id.
¶ 22.)
1

Case 1:16-cv-01166-LCB-JLW Document 103 Filed 08/10/20 Page 1 of 14

(Docket Entry 2.) Plaintiff alleges 2 that he was diagnosed with “cardiac heart disease” in 2013.
(See id. 26.) He further alleges that he experienced pain in his chest, left arm, and shoulder
blade on March 30, 2015 while incarcerated at Alexander Correctional Institution. (Id. ¶ 26.)
He was evaluated by a physician’s assistant the next day but was not evaluated again by medical
staff for over two weeks. (Id. ¶ 34, 36.)
Plaintiff transferred to Randolph Correctional Center on April 17, 2015. (Id. ¶ 37.)
Upon medical intake, one Nurse Powell informed Plaintiff that he did not need his heart
medication and “took them away from” him. (Id. ¶ 38.) On April 22, 2015, Plaintiff began to
experience nausea and pain in his chest and both arms and shoulder blades. (Id. ¶¶ 39-40.)
He was seen by various medical staff which did not include any of the Moving Defendants.
(Id. ¶¶ 39-56.) At some point, a member of this staff made the decision to send Plaintiff to a
hospital for testing. (Id. ¶ 57.) After Randolph County EMS arrived, Plaintiff went into cardiac
arrest and was taken to the hospital. (Id. ¶¶ 59-63.) A non-party correctional officer then
administered CPR while Defendant Callicut was present. (Id. ¶ 63.) Plaintiff was released
from the hospital and returned to Randolph Correctional Center on April 24, 2015. (Id. ¶ 67.)
At the time, Plaintiff was still experiencing chest pain, which he attributed to the CPR and
shocks from an external defibrillator. (Id. ¶ 63.)
Plaintiff reported additional pain in his chest and left arm on April 26, 2015. (Id. ¶¶ 69,
72.) Early the next morning, Plaintiff felt “extremely sick” and informed a correctional officer
that he was feeling pain in his chest, left arm, and shoulder blade. (Id. ¶ 78.) Plaintiff was

Plaintiff’s Complaint is lengthy. (See Compl.) For the sake of brevity, the Court’s summary
of his allegations primarily relates to the allegations against Moving Defendants.
2

2

Case 1:16-cv-01166-LCB-JLW Document 103 Filed 08/10/20 Page 2 of 14

moved to the medical clinic, but Nurse Powell accused him of “faking it” and told him that
he was just hungry and needed to eat. (Id. ¶¶ 80-81.) About an hour-and-a-half later, another
nurse called Randolph County EMS. (Id. ¶ 83.) When EMS arrived, Plaintiff informed them
that the nurses at the clinic thought he was “faking it” and a member of the EMS team told
medical clinic staff that Plaintiff needed to immediately go to the hospital as his heart was in
distress. (Id.) Defendant Callicut was present in the medical clinic during this conversation.
(Id.)
Plaintiff was hospitalized for several days. (See id. ¶¶ 84-85.) On April 30, 2015, he
was discharged and taken to Central Prison Regional Medical Center. (Id. ¶ 85.) Defendant
Wilson served as his doctor there. (Id.) Defendant Wilson spoke with a previous doctor who
treated Plaintiff and scheduled a follow-up appointment with one Doctor Cheek at High Point
Regional Hospital. (Id. ¶¶ 84, 87.) Plaintiff was not discharged from Central Prison Regional
Medical Center until September 4, 2015. (Id. ¶ 86.)
Upon Plaintiff’s return to Randolph Correctional Center, two nurses, Coats and Frike,
ordered the cessation of Plaintiff’s chronic medications and cancelled his follow-up
appointment with Dr. Cheek and another exam. (Id. ¶¶ 89, 95.) Due to this, Plaintiff
experienced a gastrointestinal bleed on December 8, 2015. (Id. ¶ 96.) When Plaintiff first
informed medical staff of blood in his stool at approximately 7:00 a.m., they told him “not to
worry about it.” (Id.) When he informed one Nurse Frike at 11:00 a.m. that the bleeding had
intensified, she inspected the bathroom and saw the blood. (Id.) Plaintiff went to the medical
clinic at around 3:00 p.m. to retrieve prescription Warfarin. (Id. ¶ 97.) The dispensing nurse
noticed that Plaintiff’s lips were blue and he informed her of the gastrointestinal bleed. (Id.)
3

Case 1:16-cv-01166-LCB-JLW Document 103 Filed 08/10/20 Page 3 of 14

When the nurse called Nurse Frike to speak with her about the bleed, Nurse Frike told her
that it was safe for Plaintiff to take the Warfarin. (Id.) Around 10:00 p.m. that evening,
Plaintiff experienced further bleeding and passed out. (Id. ¶ 98.) When he was found, he was
taken to Randolph Hospital and received a blood transfusion. (Id. ¶ 99.) While at the hospital,
Plaintiff was informed that he was terminally ill and needed a left ventricular assistance device
and ultimately a heart transplant and surgery for his Chron’s disease. (Id. ¶ 100.)
Plaintiff was discharged on December 16, 2015. (Id. ¶ 101.) Though he was instructed
to follow up with the heart failure and gastrointestinal clinics at UNC Chapel Hill, two nurses
at Randolph Correctional Center, Nurse Frike and Nurse Coats, ignored these instructions.
(Id. ¶¶ 101, 102.) On December 21, 2015, Plaintiff was found unresponsive in his bunk and
taken back to Randolph Hospital. (Id. ¶ 105.) There was some concern that Plaintiff might
die, so Defendant Callicutt called his family to come see him. (Id.) Plaintiff, however, survived
and was discharged on December 28, 2015. (Id. ¶ 107.)
Upon his return to Randolph Correctional Center, Nurse Coats refused to provide
Plaintiff his medication. (Id. ¶ 108.) Plaintiff was sent to Randolph Hospital on January 12,
2016 after he spit up blood, which he attributed to a nose bleed. (Id. ¶ 109.) The next day,
while at Randolph Correctional Center, Plaintiff was told that he was to be admitted at UNC
Hospital. (Id. ¶¶ 115-116.) However, when he arrived, he was told that he instead was there
for a colonoscopy. (Id. ¶ 117.) Plaintiff refused the colonoscopy. (See id. ¶ 118.)
Plaintiff was again transferred to Central Prison Regional Medical Center on January
29, 2016. (Id. 137.) Upon arrival, a doctor accused him of “faking” his condition and said that
he would be “locked up 24 hours a day” for asking for medical assistance (Id.) On January
4

Case 1:16-cv-01166-LCB-JLW Document 103 Filed 08/10/20 Page 4 of 14

30, 2016, Defendant Wilson spoke with Plaintiff and expressed surprise that he had not seen
a cardiologist in November 2015. (Id. ¶ 138.) Plaintiff informed her that Defendant Barnard,
with authorization from Defendant Kendrick and Nurse Coats, cancelled that appointment in
an attempt to save money. (Id.)
Plaintiff further alleges that, between January 29, 2016 and February 25, 2016, he did
not receive any medical treatment. (Id. ¶ 142.) He was then brought to an appointment with
Dr. Cheek at High Point Regional Medical Center. (Id. ¶ 143.) Dr. Cheek spoke with Dr.
Wilson about the possibility of Plaintiff’s release from Central Prison Regional Medical Center.
(Id.)
Plaintiff returned to Randolph Correctional Center on March 4, 2016. (Id. ¶ 144.)
Plaintiff wrote Defendants Smith and Solomon, as well as one McLeod Duncan, about the
delay in treatment. (Id. ¶ 146.) Plaintiff wrote two additional letters to the same recipients.
(Id. ¶¶ 147-49.) Plaintiff never received a response. (Id. ¶ 149.) Plaintiff continued his
unsuccessful attempts to be seen by the UNC Heart Failure Clinic. (Id. ¶¶ 150-55.) In one of
these attempts, he spoke to Defendant Ransom, who told him she would “look into it.” (Id.
¶ 153.)
Plaintiff was again hospitalized on July 30, 2016 at Randolph Community Hospital due
to an unspecified condition. (Id. ¶ 156.) On August 3, 2016, a nurse completed a form for
early medical release at the request of Defendant Ransom. (Id. ¶ 158.) Plaintiff spoke with
Defendant Ransom the next day. (Id. ¶ 157.) Defendant Ransom informed Plaintiff that she
had spoken with Defendant Smith about early release for Plaintiff and that she was trying to

5

Case 1:16-cv-01166-LCB-JLW Document 103 Filed 08/10/20 Page 5 of 14

send Plaintiff to Central Prison as she did not want him to die at Randolph Correctional
Center. (Id.)
On August 5, 2016, Plaintiff was once again transferred to Central Prison Regional
Medical Center. (Id. ¶ 160.) Plaintiff was told on August 9, 2016 by one Dr. Meteko that
Plaintiff would by “locked-up 24 hours a day, 7 days a week” until his release because he was
“costing Randolph Correctional Center to [sic] much money.” (Id. ¶ 163.) Plaintiff alleges
that Dr. Meteko received these instructions from Defendants Perry, Solomon, and Smith. (Id.)
Plaintiff raises a number of claims against all Moving Defendants, including Eighth
Amendment violations and medical malpractice. (Id. ¶¶ 175-89.) He also seeks to impose
supervisory liability on Defendants Perry, Solomon, Smith, Callicut, and Ransom for his
constitutional claims. (Id. ¶ 185.) Moving Defendants filed the instant motion for summary
judgment on February 28, 2020. (Docket Entry 98.) Though Plaintiff was sent a Roseboro
letter (Docket Entry 101) and was granted an extension of time to respond (Text Order
3/27/2020), he has not filed a response.
II.

DISCUSSION
At the outset, the Court notes that, because Plaintiff has failed to file a timely response,

Moving Defendants’ motion for summary judgment could be granted as a matter of course
pursuant to Local Rule 7.3(k). Where a party fails to file a timely response, the motion will be
“considered and decided as an uncontested motion, and ordinarily will be granted without
further notice.” Local Rule 7.3(k); see also Kinetic Concepts, Inc. v. ConvaTec Inc., No. 1:08CV918,
2010 WL 1667285, at *6-8 (M.D.N.C. Apr. 23, 2010) (Auld, M.J.) (analyzing this Court’s Local
Rules 7.3(f), 7.2(a), and 7.3(k) and discussing authority supporting proposition that failure to
6

Case 1:16-cv-01166-LCB-JLW Document 103 Filed 08/10/20 Page 6 of 14

respond to argument amounts to concession). Alternatively, the Court recommends that the
motion for summary judgment be granted because there is no genuine dispute as to any
material fact and Moving Defendants are entitled to judgment as a matter of law.
The Moving Defendants raise several arguments in favor of their motion: 1) Plaintiff
failed to exhaust his administrative remedies prior to filing suit; 2) Plaintiff cannot produce
evidence to establish his claims of deliberate indifference; 3) Plaintiff’s claims of medical
negligence fails as a matter of law; 4) Moving Defendants are entitled to sovereign immunity
with regard to Plaintiff’s claims against them in their official capacity; 5) Moving Defendants
are entitled to qualified immunity with regard to Plaintiff’s claims against them in their
individual capacity. (Docket Entries 99 at 9, 10, 18, 19.) The Court recommends that the
Moving Defendants’ motion for summary judgment be granted.
A. Standard of Review
Summary judgment is appropriate when there exists no genuine issue of material fact
and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Bynum
v. Poole, 1:15CV960, 2017 WL 3578698, at *1 (M.D.N.C. Aug. 17, 2017); see also Zahodnick v.
Int’l Bus. Machs. Corp., 135 F.3d 911, 913 (4th Cir. 1997). The party seeking summary judgment
bears the initial burden of coming forward and demonstrating the absence of a genuine issue
of material fact. Temkin v. Frederick County Comm’rs, 945 F.2d 716, 718 (4th Cir. 1991) (citing
Celotex v. Catrett, 477 U.S. 317, 322 (1986)). Once the moving party has met its burden, the
non-moving party must then affirmatively demonstrate that there is a genuine issue of material
fact which requires trial. Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986). There is no issue for trial unless there is sufficient evidence favoring the non-moving
7

Case 1:16-cv-01166-LCB-JLW Document 103 Filed 08/10/20 Page 7 of 14

party for a fact finder to return a verdict for that party. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 250 (1986); Sylvia Dev. Corp. v. Calvert County, Md., 48 F.3d 810, 817 (4th Cir. 1995). Thus,
the moving party can bear his burden either by presenting affirmative evidence or by
demonstrating that the non-moving party’s evidence is insufficient to establish his claim.
Celotex, 477 U.S. at 331 (Brennan, dissenting).

When making the summary judgment

determination, the Court must view the evidence, and all justifiable inferences from the
evidence, in the light most favorable to the non-moving party. Zahodnick, 135 F.3d at 913;
Halperin v. Abacus Tech. Corp., 128 F.3d 191, 196 (4th Cir. 1997). However, the party opposing
summary judgment may not rest on mere allegations or denials, and the court need not
consider

“unsupported

assertions”

or

“self-serving

opinions

without

objective

corroboration.” Evans v. Techs. Applications & Serv. Co., 80 F.3d 954, 962 (4th Cir. 1996);
Anderson, 477 U.S. at 248–49.
B. Exhaustion of Administrative Remedies
The vast majority of Plaintiff’s claims against Moving Defendants fail because Plaintiff
has not exhausted his administrative remedies. The Prison Litigation Reform Act (“PLRA”),
42 U.S.C. § 1997e(a), requires inmates to properly exhaust administrative remedies before
filing civil actions challenging the conditions of their confinement. See Woodford v. Ngo, 548
U.S. 81, 84 (2006); Moore v. Bennette, 517 F.3d 717, 725 (4th Cir. 2008). The exhaustion
requirement applies “to all inmate suits about prison life, whether they involve general
circumstances or particular episodes, and whether they allege excessive force or some other
wrong.” Porter v. Nussle, 534 U.S. 516, 532 (2002). It is well-settled that Section 1997e’s
exhaustion requirement is mandatory. See Jones v. Bock, 549 U.S. 199, 211 (2007); see also
8

Case 1:16-cv-01166-LCB-JLW Document 103 Filed 08/10/20 Page 8 of 14

Woodford, 548 U.S. at 90–91 (stating that the PLRA requires “proper exhaustion,” which
“demands compliance with an agency’s deadlines and other critical procedural rules”);
Anderson v. XYZ Correctional Health Servs., Inc., 407 F.3d 674, 676–77 (4th Cir. 2005) (citing
Porter, 534 U.S. at 524).
Further, the North Carolina Department of Corrections has a three-step
Administrative Remedy Procedure (“ARP”) which governs the filing of grievances in each of
its correctional facilities. 3 Murray, 2013 WL 3326661, at *2; see also e.g., Moore v. Bennette, 517
F.3d 717, 721 (4th Cir. 2008). The ARP first encourages inmates to attempt informal
communication with responsible officials at the facility where the problem arose. ARP
§ .0301(a). If informal resolution is unsuccessful, the ARP provides that “any aggrieved inmate
may submit a written grievance . . . .” Id. § .0310(a)(1). Additionally, the grievance must
“contain language sufficient to put defendants on notice” of the constitutional violation.
Hamilton v. Daniels, 5:13–CT–3048–FL, 2013 WL 6795008, at *3 (E.D.N.C. Dec. 20, 2013)
(finding that the plaintiff’s grievance failed to put prison officials on notice because it lacked
information pertaining to his need for a safety helmet, wheelchair, or assistance from an
orderly); see also Holley v. Shirley, 1:11CV508 GBL/JFA, 2012 WL 9702529, at *2 (E.D. Va.
Nov. 19, 2012), aff’d, 521 Fed. Appx. 176 (4th Cir. 2013). If the inmate is not satisfied with
the decision reached at the above-described step one of the grievance process, he or she may
request relief from the facility head. ARP § .0310(b)(1). If the inmate is not satisfied with the
decision reached at the above-described step two of the grievance process, he or she may

The Court takes judicial notice of this established procedure of the Department of
Corrections as a matter of public record. Fed. R. Evid. 201(1).
3

9

Case 1:16-cv-01166-LCB-JLW Document 103 Filed 08/10/20 Page 9 of 14

appeal to the secretary of correction through the inmate grievance examiner (IGE). Id.
§ .0310(c)(1). The decision by the IGE or a modification by the secretary of correction shall
constitute the final step of the Administrative Remedy Procedure. Id. § .0310(c)(6).
The record indicates that between January 1, 2015, and September 2016, the Inmate
Grievance Resolution Board received thirteen step three appeals from Plaintiff. 4 (Affidavit of
Finesse G. Couch ¶ 4, Docket Entry 47.) Only one relates to this matter. 5 In a grievance,
filed on January 17, 2016, Plaintiff notes many of the medical issues he mentions in his
complaint. (Ex. H, Grievance No. 4445–2016–EDM–00005, Docket Entry 47-8.) He
particularly discusses the incident on January 13, 2016, when he was told he was being admitted
to UNC Hospital, but upon arrival was informed that he was only there for a colonoscopy.
(Id. at 3.) In the portion of the form titled “What remedy would resolve your grievance?,”
In his Complaint, Plaintiff contends that has “used the prisoner grievance procedure” and
has “appealed the denial of the grievance” multiple times (Complaint ¶¶ 171-174) but it is not apparent
that Plaintiff completed the three-step process for these documents or if they are different than the
ones in the record (see Docket Entries 47-1–47-13).
4

Specifically, four of the irrelevant other step three appeals concern incidents arising out of
Alexander Correctional Institution regarding Plaintiff’s complaints about unrelated issues, including
not receiving prescribed medication for his Crohn’s disease, lack of ability to practice Jewish religious
traditions, and lack of accessibility for disabled inmates. (Ex. A, Grievance No. 4870–B–14–582,
Docket Entry 47-1; Ex. B, Grievance No. 4870–B–15–023, Docket Entry 47-2; Ex. C, Grievance No.
4870–M–15–074, Docket Entry 47-3; Ex. D, Grievance No. 4870–H–15–114, Docket Entry 47-4.)
Another two concern an unrelated appeal to a disciplinary appeals board (Ex. E, Grievance No. 3100–
15–0730, Docket Entry 47-5) and the inability to practice Jewish religious traditions (Ex. F., Grievance
No. 3100–15–0987) while housed at the Central Prison Regional Medical Center. Two of the other
step three appeals involve matters at predominantly about the conduct of one Officer Moffitt, a nonparty, at Randolph Correctional Center. (Ex. I, Grievance No. 4445–2016–CDM–01275, Docket
Entry 47-9; Ex. J, Grievance No. 4445–2016–CDM–01282, Docket Entry 47-10.) Three others from
Randolph Correctional Center involve unrelated disputes including the quantity of medication
Plaintiff was allowed to receive, a change in Plaintiff’s dietary plan, a prescription for a walker, and
missing or confiscated personal items (Ex. G, Grievance No. 4445–2015–EDM–00130. Docket Entry
47-7; Ex. K, Grievance No. 4445–2016–CDM–01285, Docket Entry 47-11; Ex. L, Grievance No.
4445-2016-FDM-01309, Docket Entry 47-12; Ex. M, Grievance No. 4445–2016–FDM–001329,
Docket Entry 47-13.)
5

10

Case 1:16-cv-01166-LCB-JLW Document 103 Filed 08/10/20 Page 10 of 14

Plaintiff writes “That I’m told what the treatment plan is going to be with my heart, and get
me to UNC to see the cardiologist/heart failure clinic and the UNC G.I. surgeon for Chron’s
disease per the hospital recommendations. (To do nothing will only lead to death).” (Id. at
2.)
With regard to claims in which Plaintiff seeks to hold Moving Defendants directly
liable, the filing and appeal of this grievance fails to constitute exhaustion of Plaintiff’s
administrative remedies. While the grievance briefly mentions Plaintiff’s medical history, it
only details conduct by prison personnel between November 2015 and January 16, 2016. (Id.
at 3.) It fails to put prison administrators on notice of any problem that may have existed
prior or after that time period. As such, of the claims against any Defendant in this action,
only those that arise from this time period have been exhausted. Furthermore, Plaintiff does
not mention Moving Defendants in this grievance (id. at 2-4) and, with two nonmaterial
exceptions 6, his complaint does not name them during this time period as well. 7 (See Compl.
¶¶ 95-128.) Plaintiff thus has not exhausted any claims that seeks to hold Moving Defendants
directly liable, and summary judgment should be granted in favor of Moving Defendants with
regards to any such claim.

Plaintiff makes a solitary reference to Defendant Callicutt calling Plaintiff’s family when he
was taken to the hospital on December 21, 2015. (Compl. ¶ 105.) He also alleges that a physician at
UNC called Defendant Adams to inquire why Plaintiff was sent there; Defendant Adams said she did
not know and tried to speak to Nurse Coats and Nurse Frike to find an answer. (Id. ¶ 121.) Otherwise,
no other Moving Defendants are named in the relevant portion of the complaint. (Id. ¶ 95-128.)
6

Of course, Plaintiff need not identify specific Defendants in his grievance. See Moore v.
Bennette, 517 F.3d 717, 726 (4th Cir. 2008) (holding that the ARP does not require identification of
specific individuals in a prisoner’s grievance).
7

11

Case 1:16-cv-01166-LCB-JLW Document 103 Filed 08/10/20 Page 11 of 14

Regarding Plaintiff’s claims that seek to impose supervisory liability on Defendants
Perry, Solomon, Smith, Callicut, and Ransom (collectively “Supervisory Defendants”) for
events between November 2015 and January 16, 2016, Plaintiff likely has exhausted his
administrative remedies. However, as detailed below, Supervisory Defendants are entitled to
summary judgment on those claims as well.
C. Supervisory Liability Claims
Supervisory Defendants may not be held liable based upon a theory of respondeat superior,
because respondeat superior generally is inapplicable to § 1983 suits. Monell v. Dep’t of Social Servs.,
436 U.S. 658, 694 (1978). However, a supervisor may be liable for the actions of a subordinate
if:
(1) the supervisor had actual or constructive knowledge that his
subordinate was engaged in conduct that posed “a pervasive and
unreasonable risk” of constitutional injury to citizens like the
plaintiff;
(2) the supervisor’s response to that knowledge was so
inadequate as to show “deliberate indifference to or tacit
authorization of the alleged offensive practices;” and
(3) there was an “affirmative causal link” between the
supervisor’s inaction and the particular constitutional injury
suffered by the plaintiff.
Shaw v. Stroud, 13 F.3d 791, 799 (4th Cir.1994).
As stated above, Plaintiff’s only surviving claims are those that relate to his January 16,
2016 grievance. However, Defendants Perry, Solomon, Smith, and Ransom are not even
mentioned in the complaint until events after January 16, 2016; no knowledge or conduct is
attributed to them from before that date. (See Compl. ¶¶ 146, 148-49, 153, 157, 163.) Thus,
Plaintiff fails to allege the knowledge, deliberate indifference, or causation elements necessary
for a constitutional supervisory liability claim to survive. While evidence in the record
12

Case 1:16-cv-01166-LCB-JLW Document 103 Filed 08/10/20 Page 12 of 14

indicates that Defendant Callicutt had actual or constructive knowledge of Plaintiff’s plight, 8
Plaintiff does not allege that Defendant Callicut was the supervisor of any of the individuals
accused of misconduct or that his response was inadequate such that it was deliberately
indifferent or constituted tacit authorization of offensive practices. Indeed, on the latter point,
the record indicates that Defendant Callicut believed that Plaintiff was receiving medical care
and would continue to do so upon his late January 2016 transfer out of Randolph Correctional
Center to Central Prison. (See Ex. H at 7, Grievance No. 4445–2016–EDM–00005, Docket
Entry 47-8.) The Court thus recommends granting summary judgment in favor of Moving
Defendants.
III.

CONCLUSION

The vast majority of Plaintiff’s claims are unexhausted and the exhausted supervisory
liability claims cannot survive. Summary judgment should be granted in favor of the Moving
Defendants. 9 As all other Defendants have been terminated from this action or have not
received service of process, this action should be dismissed.

For example, Defendant Callicut reviewed Plaintiff’s January 16, 2016 grievance at the second
step of the appeals process. (See Ex. H at 7, Grievance No. 4445–2016–EDM–00005, Docket Entry
47-8.)
8

Because the Court recommends summary judgment be granted in favor of Moving
Defendants for the reasons discussed above, it need not consider their other arguments. However,
the Court does note that Defendants are entitled to sovereign immunity with regards to claims brought
against them in their official capacity. See Cromer v. Brown, 88 F.3d 1315, 1332 (4th Cir. 1996) (noting
that the Eleventh Amendment bars suits in federal courts for money damages against nonconsenting
states and that this immunity extends to state officers acting in their official capacity.)
9

13

Case 1:16-cv-01166-LCB-JLW Document 103 Filed 08/10/20 Page 13 of 14

For the reasons stated herein, IT IS HEREBY RECOMMENDED that Defendants’
Motion for Summary Judgment (Docket Entry 98) be GRANTED and that Judgement be
entered dismissing this action.
___________________________
Joe L. Webster
United States Magistrate Judge

August 10, 2020
Durham, North Carolina

14

Case 1:16-cv-01166-LCB-JLW Document 103 Filed 08/10/20 Page 14 of 14