LEWIS v. HOKE COUNTY et al

Filing 126

MEMORANDUM OPINION AND ORDER signed by JUDGE WILLIAM L. OSTEEN, JR on 02/01/2022, that Plaintiff's Motion for Reconsideration, (Doc. 104 ), is GRANTED in part and DENIED in part. FURTHER that this court' s Judgment adopting the Recommendation entered September 28, 2020, (Doc. 103 ), is hereby STRUCK and RECONSIDERED in light of Plaintiff's objections. FURTHER that Plaintiff's cross-motions for summary judgment, (Docs. 104 -2 104 -5), are DENIED. FURTHER that Plaintiff's objections, (Docs. 104 -1 104 -6), are OVERRULED and the Magistrate Judge's Recommendation, (Doc. 101 ), is ADOPTED by this court. IT IS ORDERED that Defendants Hoke County, Sheriff Hubert Peterki n, Nachia Revels, Southern Health Partners, and Summit Food Services, LLC/ABL Management, Inc.'s, Motions for Summary Judgment, (Docs. 66 , 69 , 74 ), are GRANTED and that this action is DISMISSED against said Defendants. FURTHER that Defe ndant Kevin Edge's Motion for Summary Judgment, (Doc. 76 ), is GRANTED in part with respect to Plaintiff's Fourteenth Amendment claims. FURTHER that, to the extent alleged, Plaintiff's state-law negligence claim against Defendant Edge is DISMISSED WITHOUT PREJUDICE, pursuant to the court's exercise of its discretion under 28 U.S.C. § 1367(c)(3). A judgment consistent with this Memorandum Opinion and Order will be entere d contemporaneously herewith.(Taylor, Abby)

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

ROBERT LEWIS,
Plaintiff,
v.
HOKE COUNTY, et al.,
Defendants.

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1:17CV987

MEMORANDUM OPINION AND ORDER
OSTEEN, JR., District Judge
Presently before this court is a pro se Motion for
Reconsideration filed by Plaintiff Robert Lewis (“Plaintiff”).
(Doc. 104.) Plaintiff moves this court to reconsider its
adoption of the Magistrate Judge’s Recommendation granting
summary judgment in favor of Defendants Hoke County, Sheriff
Hubert Peterkin, Nachia Revels, Southern Health Partners, Kevin
Edge, and Summit Food Services (“Defendants”). (Id.) Plaintiff
argues that this court must consider his filings related to the
Magistrate Judge’s Recommendation and Defendants’ summary
judgment motions, (Docs. 104-1, 104-2, 104-3, 104-4, 104-5, 1046), and correct the Magistrate Judge’s failure to treat
Plaintiff’s verified Complaint, (Doc. 2), as a sworn affidavit,
(Doc. 104 at 1).

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Plaintiff’s motion is ripe for resolution. For the reasons
stated herein, Plaintiff’s motion will be granted in part and
denied in part, and the original Judgment adopting the
Recommendation, (Doc. 103), will be struck. After considering
Plaintiff’s objections, however, this court will readopt the
Recommendation.
I.

PROCEDURAL BACKGROUND
Plaintiff filed his original Complaint on October 30, 2017.

(Doc. 2.)1 All Defendants moved for summary judgment between
January 21, 2020, and January 22, 2020. (Docs. 66, 69, 74, 76.)
On September 1, 2020, the Magistrate Judge filed his
Recommendation that summary judgment be granted as to all
Defendants. (Mem. Op. & Recommendation of United States
Magistrate Judge (“Recommendation”) (Doc. 101) at 28.) Notice
was served on the parties, and Plaintiff, a pro se state
prisoner who received the Notice via postal mail, had until
September 18, 2020, to file any objections to the
Recommendation. (Doc. 102.) The Clerk did not receive any
objections within the time limits prescribed by 28 U.S.C. § 636
and Federal Rule of Civil Procedure 6(d). On September 28, 2020,

1

All citations in this Memorandum Opinion and Order to
documents filed with the court refer to the page numbers located
at the bottom right-hand corner of the documents as they appear
on CM/ECF.
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this court entered Judgment adopting the Recommendation.
(Doc. 103.) Plaintiff filed his Motion for Reconsideration on
October 5, 2020. (Doc. 104.) On the same day, the Clerk’s office
received Plaintiff’s objections to the Recommendation, which are
dated September 16, 2020. (Doc. 104-1.)
Upon review of Plaintiff’s filings, it appears to this
court that, though the Clerk did not receive Plaintiff’s
objections until October 5, 2020, the envelope in which the
objections arrived was postmarked by the Nash Correctional
Institution prison mail system on September 16, 2020, (Doc. 1047 at 1), making them timely under the prison mailbox rule. 2
Plaintiff also filed several other documents that the Clerk
received on October 5, 2020, including: a Cross-Motion for
Summary Judgment against Defendant Summit, (Doc. 104-2), a
Cross-Motion for Summary Judgment against Defendant Southern
Health Partners, (Doc. 104-3), a Cross-Motion for Summary
Judgment against Defendants Hoke County, Sheriff Hubert
Peterkin, and Nachia Revels, (Doc. 104-4), a Cross-Motion for
Summary Judgment against Defendant Kevin Edge, (Doc. 104-5), and
a Declaration in support of these motions, (Doc. 104-6).

2

The prison mailbox rule states that “a petition is deemed
filed upon delivery to prison mailroom officials.” United States
v. McNeill, 523 F. App’x 979, 981 (4th Cir. 2013) (citing
Houston v. Lack, 487 U.S. 266, 270-72 (1988)).
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Although not received by the Clerk until October 5, 2020, those
documents each had a certificate of service dated April 16,
2020. (See Doc. 104-2 at 14; Doc. 104-3 at 24; Doc. 104-4 at 25;
Doc. 104-5 at 11; Doc. 104-6 at 2.) During a review of these
documents, this court discovered a second envelope, (Doc. 1048), which contained some of Plaintiff’s pleadings filed October
5, 2020.

This court ordered the parties to provide briefing on

whether the cross-motions for summary judgment, (Docs. 104-2 104-5), should be deemed timely filed under the prison mailbox
rule. (Doc. 109 at 2.) Defendants responded, (Doc. 110), as did
Plaintiff, (Doc. 111).
On December 2, 2021, this court held an evidentiary hearing
on the timeliness of the cross-motions for summary judgment.
(Minute Entry 12/02/2021.) Plaintiff maintains he placed the
pleadings in the prison mail system on April 16, 2020. (Doc. 104
at 1.) Defendants provided three affidavits with conflicting
information. First, Defendants submitted an affidavit of Warden
Stanley at the Nash Correctional Institution stating that there
were no notations in the prison mail system indicating
any mailing had been received from Plaintiff during April 2020.
(Doc. 110-1 ¶ 5.) That affidavit also included an attachment
from a Correctional Officer Richardson indicating the signature
on the envelope, (Doc. 104-8), was not hers, (Doc. 110-1 at 5).
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Then, Defendants filed a supplemental affidavit of Warden
Stanley representing that there was no legal mail receiv ed from
Plaintiff during April 2020 but stating there was another
correctional officer with the last name “Richardson” who was no
longer at the facility, so the Warden could not find out whether
it was that officer’s signature on the envelope. (Doc. 113 -1.)
Finally, Defendants filed a third affidavit of Warden Stanley
stating Plaintiff had mailed legal mail to the Clerk’s Office on
April 9, 2020. (Doc. 121-1 ¶ 6.)
After the hearing, Defendants had an opportunity to respond
to Plaintiff’s cross-motions for summary judgment, which they
did. (Docs. 122-124.) Plaintiff did not file a reply.
II.

MOTION FOR RECONSIDERATION
A.

Standard of Review

A motion for reconsideration under Federal Rule 59(e) is
granted in three circumstances: “(1) to accommodate an
intervening change in controlling law; (2) to account for new
evidence not available at trial; or (3) to correct a clear error
of law or prevent manifest injustice.” Pac. Ins. Co. v. Am.
Nat’l Fire Ins. Co., 148 F.3d 396, 403 (4th Cir. 1993) (citation
omitted); see also Zinkand v. Brown, 478 F.3d 634, 637 (4th Cir.
2007). Manifest injustice is defined as “an error by the court
that is ‘direct, obvious, and observable.’” Register v. Cameron
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& Barkley Co., 481 F. Supp. 2d 479, 480 n.1 (D.S.C. 2007)
(quoting In re Oak Park Calabasas Condo. Ass’n, 302 B.R. 682,
683 (Bankr. C.D. Cal. 2003)). “Clear error occurs when [a court
is] ‘left with the definite and firm conviction that a mistake
has been committed.’” United States v. Woods, 477 F. App’x 28,
29 (4th Cir. 2012) (quoting United States v. Harvey, 532 F.3d
326, 336 (4th Cir. 2008)).
A motion for reconsideration under Rule 59(e) is improper
“where it only asks the Court to rethink its prior decision, or
presents a ‘better or more compelling argument that the party
could have presented in the original briefs’ on the matter.”
Hinton v. Henderson, No. 3:10cv505, 2011 WL 2142799, at *1
(W.D.N.C. May 31, 2011) (internal citation omitted) (quoting
Madison River Mgmt. Co. v. Bus. Mgmt. Software Corp., 402 F.
Supp. 2d 617, 619 (M.D.N.C. 2005)); see also Pac. Ins., 148 F.3d
at 403 (“Rule 59(e) motions may not be used, however, to raise
arguments which could have been raised prior to the issuance of
the judgment, nor may they be used to argue a case under a novel
legal theory that the party had the ability to address in the
first instance.”); DirecTV, Inc. v. Hart, 366 F. Supp. 2d 315,
317 (E.D.N.C. 2004) (holding that a motion to reconsider is not
proper when it “merely asks the court ‘to rethink what the Court

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had already thought through—rightly or wrongly’” (quoting Harsco
Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir. 1985)).
B.

Analysis

This court finds that Plaintiff has met his burden in
demonstrating that there is good cause for this court to
reconsider its adoption of the Magistrate Judge’s Recommendation
in light of Plaintiff’s objections and cross-motions. Plaintiff
does not present new evidence or assert a change in controlling
law but argues that it would be unjust if this court failed to
consider his objections to the Recommendation. (See Doc. 104.)
Plaintiff argues that he filed his objections to the
Recommendation by placing them in the Nash Correctional
Institution prison mailing system on September 16, 2020. (Id. at
1.) This allegation is verified by an envelope which was signed
and dated on September 16, 2020, by a Nash Correctional
Institution officer. (Doc. 104-7 at 1.) As explained by the
Notice informing Plaintiff that the Magistrate Judge had filed
his Recommendation, (Doc. 102), Plaintiff had until September
18, 2020, to file objections to the Recommendation, (id. at 1.)
Plaintiff’s objections were therefore timely filed under the
prison mailbox rule, and this court must reconsider its adoption

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of the Recommendation in light of Plaintiff’s objections to
prevent a manifest injustice.
Additionally, as discussed at the December 2, 2021
evidentiary hearing, the envelope containing Defendant’s crossmotions and declaration is signed and dated April 16, 2020, by a
Nash Correctional Institution officer. (Doc. 104-8 at 1.) In
light of the conflicting information in Warden Stanley’s
affidavits, this court finds Plaintiff’s certificates of service
control, and further finds Plaintiff timely filed his crossmotions under the prison mailbox rule, requiring this court to
reconsider its adoption of the Recommendation in light of those
cross-motions. This court finds these cross-motions are best
construed as additional objections to the Recommendation, and
this court will treat them as such.
Plaintiff also argues that this court should reconsider its
adoption of the Recommendation because the Magistrate Judge
failed to treat Plaintiff’s verified Complaint as the functional
equivalent of a sworn affidavit. (Doc. 104.) Plaintiff argues
that, “at the very least, the court should consider that
Plaintiff’s Complaint was verified under the penalty of perjury”
and that “the Fourth Circuit has held that a verified Complaint
is the functional equivalent of an opposing affidavit that
precludes summary judgment when the allegations contained
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therein are based on personal knowledge.” (Id. at 1 (citing
Davis v. Zahradnick, 600 F.2d 458, 459-60 (4th Cir. 1979)).)
The court does not find that this allegation serves as a
basis for reconsideration. Plaintiff misconstrues the holding in
Davis, which does not address any circumstances that are present
here. See 600 F.2d 458. The Fourth Circuit did, however, hold in
Davis that summary judgment “may not be invoked where . . . the
affidavits present conflicting versions of the facts . . . .”
Id. at 460. That said, as addressed by the Magistrate Judge’s
Recommendation, Plaintiff’s verified Complaint and Defendants’
motions for summary judgment, together, do not establish that
there are any conflicting versions of the facts, but merely
demonstrate conflicting understandings about whether the facts
amount to violations of constitutionally-protected rights. (See
Recommendation (Doc. 101) at 16-18.)
Further, Plaintiff fails to acknowledge that, while the
Magistrate Judge’s Recommendation does state that Defendants’
motions for summary judgment should be granted by default for
Plaintiff’s failure to respond, (id. at 5), the Magistrate Judge
provided a lengthy analysis addressing Plaintiff’s Complaint and
Defendants’ motions on the merits, (see id. at 5-28). Even if
the Recommendation did not explicitly state that it treated
Plaintiff’s Complaint as a sworn affidavit, the Magistrate Judge
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was very clear that “Defendants’ motions should be granted on
the merits” regardless of Plaintiff’s failure to file a timely
response. (Id. at 5.) Despite the fact that “the party opposing
summary judgment may not rest on mere allegations or denials,”
(id. at 6), Plaintiff’s Complaint was fully addressed on the
merits in the Magistrate Judge’s Recommendation, as adopted by
this court. Plaintiff fails to demonstrate in his Motion to
Reconsider that there was any error regarding the
Recommendation’s treatment of his verified Complaint, and thus,
this court does not find that Plaintiff’s allegation that the
Magistrate Judge erroneously recommended awarding summary
judgment in favor of Defendants by default warrants
reconsideration. Plaintiff’s motion will be denied as to
Plaintiff’s allegations that his verified Complaint was not
treated as a sworn affidavit by the Recommendation.
For these reasons, this court will grant reconsideration as
to Plaintiff’s objections, (Docs. 104-1 – 104-6), and will deny
reconsideration as to Plaintiff’s allegations that summary
judgment was erroneously awarded by default, (Doc. 104 ).
Accordingly, this court will strike its Judgment, (Doc. 103),
adopting the Recommendation, (Recommendation (Doc. 101)), and
reconsider the Recommendation in light of Plaintiff’s
objections.
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III. PLAINTIFF’S OBJECTIONS
A.

Standard of Review

This court is required to “make a de novo determination of
those portions of the [Magistrate Judge’s] report or specified
proposed findings or recommendations to which objection is
made.” 28 U.S.C. § 636(b)(1). This court “may accept, reject, or
modify, in whole or in part, the findings or recommendations
made by the magistrate judge[,] . . . receive further
evidence[,] or recommit the matter to the magistrate judge with
instructions.” Id. “[I]n the absence of a timely filed
objection, a district court need not conduct a de novo review,
but instead must ‘only satisfy itself that there is no clear
error on the face of the record in order to accept the
recommendation.’” Diamond v. Colonial Life & Accident Ins. Co.,
416 F.3d 310, 315 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72
advisory committee’s note); see also Fed. R. Civ. P. 72(b)(3)
(“The district judge must determine de novo any part of the
magistrate judge’s disposition that has been properly objected
to.”). “[A] general objection to a magistrate judge’s f indings
is not sufficient—‘a party must object to the [magistrate’s]
finding or recommendation . . . with sufficient specificity so
as reasonably to alert the district court of the true ground for
the objection.’” United States v. Benton, 523 F.3d 424, 428 (4th
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Cir. 2008) (alterations in original) (quoting United States v.
Midgette, 478 F.3d 616, 622 (4th Cir. 2007)). General objections
include those simply restating arguments previously presented to
the Magistrate Judge. See, e.g., Kiesner v. Starbucks Corp.,
Civil Action No. 1:12-cv-00448-JMC, 2013 WL 3479275, at *1
(D.S.C. July 10, 2013); Crutchfield v. Immunoscience, Inc., No.
1:08CV561, 2009 WL 10664816, at *1-2 (M.D.N.C. Aug. 31, 2009);
Joe Hand Promotions, Inc. v. Fitch, Civil No. 1:08CV551, 2009 WL
728574, at *1 (W.D.N.C. Mar. 17, 2009).
Nonetheless, “as part of its obligation to determine de
novo any issue to which proper objection is made, a district
court is required to consider all arguments directed to that
issue, regardless of whether they were raised before the
magistrate.” United States v. George, 971 F.2d 1113, 1118 (4th
Cir. 1992); see Samples v. Ballard, 860 F.3d 266, 272-73 (4th
Cir. 2017) (applying George to habeas proceedings); Workman v.
Bill M., Civil Action No. 6:17-cv-00972-RBH, 2017 WL 4843968, at
*2 n.6 (D.S.C. Oct. 26, 2017) (applying George and Samples),
aff’d, 717 F. App’x 278 (4th Cir. 2018) (per curiam); Wheeler v.
Berryhill, No. 5:16-CV-00225-FL, 2017 WL 3493616, at *2
(E.D.N.C. Aug. 15, 2017) (same). Arguments include “whatever
position is taken in support of or against each asserted ground
for relief.” Samples, 860 F.3d at 273.
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B.

Analysis

As explained above, this court construes Plaintiff’s
pleadings entitled “Plaintiff’s Objections to the Magistrate
Judge[’]s Memorandum Opinion and Recommendation,” (Doc. 104-1),
“Plaintiff’s Cross-Move for Summary Judgment and Memorandum of
Law in Response to Defendant Summit[’]s Motion for Summary
Judgment,” (Doc. 104-2), “Plaintiff’s Cross-Move for Summary
Judgment in Response to Defendant Southern Health Partners’
Motion for Summary Judgment and Supporting Memorandum of Law,”
(Doc. 104-3), “Plaintiff’s Cross-Move for Summary Judgment and
Memorandum of Law in Response to Defendants Hoke Coun ty, Hubert
Peterkin and Nachia Revels[’] Motion for Summary Judgment,”
(Doc. 104-4), “Plaintiff’s Cross-Move for Summary Judgment and
Memorandum of Law in Response to Defendant Kevin Edge [’]s Motion
for Summary Judgment,” (Doc. 104-5), and “Plaintiff’s
Declaration in Support of His Cross-Move for Summary Judgment as
to All Defendants,” (Doc. 104-6), as objections to the
Magistrate Judge’s Recommendation. Taking all of Plaintiff’s
objections together, this court finds that Plaintiff’s
objections are not sufficiently specific so as to alert this
court of a true ground for objection. Rather, the majority of
Plaintiff’s objections restate or reframe the arguments

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previously presented to the Magistrate Judge through Plaintiff’s
Complaint.
Plaintiff’s “Objections” objection, (Doc. 104-1), focuses
solely on the delay from April 2020 to October 2020 between
Plaintiff allegedly placing his cross-motions and declaration in
the prison mail system and those documents arriving at the
Clerk’s office. (Id. at 1-2.) Plaintiff argues “that it would be
unfair to hold him accountable for any mistakes, oversights or
mishaps that prison officials may have made after placing his
legal mail in their hands to be mailed to the court.” ( Id. at
1.) This court agrees it would be unfair to hold Plaintiff
accountable for the delay given the lack of clear explanation
from prison officials as to what happened with Plaintiff’s
documents, which is why this court granted Plaintiff’s Motion
for Reconsideration and is considering Plaintiff’s arguments
raised in his cross-motions.3
In his “Declaration” objection, (Doc. 104-6), Plaintiff
presents evidence in the form of several exhibits which “derive
from either [Plaintiff’s] prison and jail medical records or
state laws and regulations or interrogatories and expert studies

3

To the extents Plaintiff also objects to the Magistrate
Judge failing to consider that Plaintiff’s Complaint was
verified, (Doc. 104-1 at 2), that objection lacks merit. See
discussion supra Part II.B.
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or well-known medical facts and the Defendants[’] policies and
procedures.” (Doc. 104-6 at 1.) Specifically, these exhibits
include Plaintiff’s medical intake form from his arrival at Hoke
County Detention Center, copies of Plaintiff’s sick requests,
various policies and procedures, a selection of responses to
interrogatories, copies of medical records which were already
included in the record, and various Internet articles about
diabetes and nutrition. (Doc. 104-6 at 3-70.) Despite the volume
of exhibits, Plaintiff does not rectify his previous failure to
establish a standard of care for diabetic prisoners as discussed
in the Recommendation, (Recommendation (Doc. 101) at 9), and his
reliance on Internet publications for this purpose falls far
short of expert testimony or any other kind of admissible
evidence.4 In short, Plaintiff uses the “Declaration” objection
evidence to support the facts alleged in his initial Complaint,
but he does not present any new arguments. (See id.; Docs. 2,
104-6.)
Plaintiff’s “Cross-Move” objections do not present any new
evidence, and only offer different interpretations of the same
facts as presented by both Plaintiff and Defendants in the

4

“An affidavit or declaration used to support or oppose a
motion must be made on personal knowledge, set out facts that
would be admissible in evidence, and show that the affiant or
declarant is competent to testify on the matters stated.” Fed.
R. Civ. P. 56(c)(4) (emphasis added).
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Complaint and summary judgment filings. (Compare Docs. 104-2 104-5, with Docs. 2, 66, 67, 69, 72, 74, 75, 76, 77.) As
explained in the Recommendation, Defendants present affirmative
evidence against Plaintiff’s claim in the form of affidavits and
declarations, including Plaintiff’s own deposition.
(Recommendation (Doc. 101) at 6-7.) In their motions for summary
judgment, Defendants provide evidence that Plaintiff did not
include in his Complaint, including depositions, Plaintiff’s
nutritional assessment form, the Hoke County Detention Center’s
menu planning policy, and Plaintiff’s prison medical records.
(Docs. 67-1 – 67-4, 75-6 – 75-7, 70-1.)
In his “Declaration” and “Cross-Move” objections, Plaintiff
does not allege any new facts or dispute those already alleged.
Rather, he attempts to fill gaps in the evidentiary record with
contentions about what he believes took place in the moments
unaccounted for by the evidence. These same inferences were
largely the basis for Plaintiff’s initial Complaint. As
explained in the Recommendation, “Plaintiff testified that [h is
diabetic] diet was the result of a nurse, not a physician,
filling out a ‘generic medical needs form.’ However, Plaintiff
does not know whether a physician was consulted prior to the
jail nurse changing his diet.” (Recommendation (Doc. 101) at 9
(internal citation omitted).) This assumption exemplifies why
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Plaintiff’s Complaint and subsequent objections fail
substantively—all of Plaintiff’s allegations are situated from
his perspective, and are informed by his lack of knowledge or
understanding of the conversations and processes that he is not
privy to as a function of his position within the prison. For
example, Plaintiff repeatedly insists that prison medical staff
were not under supervision by an authorized physician, ( see,
e.g., Doc. 2 at 23-24), but Plaintiff fails to consider that he
does not have an omniscient perspective within the prison and
that the inferences he may draw from the lack of information he
has do not constitute factual disputes that warrant
reconsideration of a grant of summary judgment. These
allegations are simply not specific enough to inform this court
of any particular findings in the Recommendation to which
Plaintiff objects. Plaintiff failed to utilize the discovery
process to obtain facts necessary to create a genuine issue o f
fact as opposed to Plaintiff’s speculative allegations. “Rule 56
requires that affidavits in support of summary judgment motions
be based on personal knowledge and ‘show that the affiant or
declarant is competent to testify on the matters stated.’”
Sanchez Carrera v. EMD Sales, Inc., 402 F. Supp. 3d 128, 141 (D.
Md. 2019) (quoting Fed. R. Civ. P. 56(c)(4)).

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As discussed above, a crucial issue that weighed against
Plaintiff at summary judgment was his failure to establish a
standard of care to which prison staff were deliberately
indifferent. (Recommendation (Doc. 101) at 9 (“Plaintiff is
unable to point to any standard of care that Defendants
violated.”).) Throughout his objections, Plaintiff continues to
insist that policies were ignored and that prison staff acted
outside of their authority, but he fails to allege any specific
policies or violations. (See Doc. 104-2 at 2, 6, 9; Doc. 104-3
at 13-14; Doc. 104-4 at 11-16.) Plaintiff also appears to
conflate the distribution of authority across the prison’s
administrative, medical, and food service staff. For example,
Plaintiff alleges that food service staff were deliberately
indifferent to Plaintiff’s nutritional requirements as a
diabetic, (Doc. 104-2 at 6), while prison policy clearly states
that the assignment of medically modified diets is the
responsibility of medical staff, (Doc. 104-6 at 20). As the
Recommendation explains, “[i]f inmates had a certain medical
diet assigned by the medical staff, the Food Service Director
was required to serve that inmate in accordance with the
corresponding medical diet menu that had been approved by the
dietitian.” (Recommendation (Doc. 101) at 12.) Plaintiff fails
to provide any evidence to the contrary. Rather, in his
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objections, Plaintiff raises more arguments about the systems
and policies behind the prison that were already raised in many
ways at the outset of this matter. (See, e.g., Doc. 104-2 at 1.)
Plaintiff does not establish any specific objections that would
induce this court to abandon its adoption of the Magistrate
Judge’s Recommendation. Accordingly, this court finds that it
reaches the same conclusion after de novo review of Plaintiff’s
objections and the Recommendation that it reached the first time
it considered this matter.
This court recognizes that when the parties have filed
cross-motions for summary judgment, the court must “review each
motion separately on its own merits ‘to determine whether either
of the parties deserves judgment as a matter of law.’” Rossignol
v. Voorhaar, 316 F.3d 516, 523 (4th Cir. 2003) (quoting Philip
Morris Inc. v. Harschbarger, 122 F.3d 58, 62 n.4 (1st Cir.
1997)). In reviewing each individual motion, a court must
resolve all factual disputes and reasonable inferences in the
light most favorable to the non-moving party. Id. Alternatively
to the analysis contained herein, this court has reviewed
Plaintiff’s cross-motions for summary judgment separately and
finds, for the same reasons previously described, that
Plaintiff’s motions should be denied.

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IV.

CONCLUSION
This court finds the Magistrate Judge’s order is not

clearly erroneous or contrary to law. This court has reviewed
Petitioner’s objections and finds that his objections do not
change the conclusion reached by the Magistrate Judge in his
Recommendation. This court will again adopt the Magistrate
Judge’s Recommendation.
For the foregoing reasons, IT IS THEREFORE ORDERED that
Plaintiff’s Motion for Reconsideration, (Doc. 104), is GRANTED
in part and DENIED in part.
IT IS FURTHER ORDERED that this court’s Judgment adopting
the Recommendation entered September 28, 2020, (Doc. 103), is
hereby STRUCK and RECONSIDERED in light of Plaintiff’s
objections.
IT IS FURTHER ORDERED that Plaintiff’s cross-motions for
summary judgment, (Docs. 104-2 – 104-5), are DENIED.
IT IS FURTHER ORDERED that Plaintiff’s objections,
(Docs. 104-1 – 104-6), are OVERRULED and the Magistrate Judge’s
Recommendation, (Doc. 101), is ADOPTED by this court.
IT IS ORDERED that Defendants Hoke County, Sheriff Hubert
Peterkin, Nachia Revels, Southern Health Partners, and Summit
Food Services, LLC/ABL Management, Inc.’s, Motions for Summary

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Judgment, (Docs. 66, 69, 74), are GRANTED and that this action
is DISMISSED against said Defendants.
IT IS FURTHER ORDERED that Defendant Kevin Edge’s Motion
for Summary Judgment, (Doc. 76), is GRANTED in part with respect
to Plaintiff’s Fourteenth Amendment claims.
IT IS FURTHER ORDERED that, to the extent alleged,
Plaintiff’s state-law negligence claim against Defendant Edge is
DISMISSED WITHOUT PREJUDICE, pursuant to the court’s exercise of
its discretion under 28 U.S.C. § 1367(c)(3).
A judgment consistent with this Memorandum Opinion and
Order will be entered contemporaneously herewith.
This the 1st day of February, 2022.

__________________________________
United States District Judge

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