LEWIS v. PETERKIN, et al

Filing 39

ORDER signed by JUDGE WILLIAM L. OSTEEN, JR on 09/24/2020, that the Magistrate Judge's Recommendation, (Doc. 32 ), is ADOPTED IN PART AND REJECTED IN PART. FURTHER that the Motion for Judgment on the Pleadin gs, (Doc. 27 ), filed by Defendants Hubert Peterkin, Nachia Revels and Hoke County is GRANTED IN PART AND DENIED IN PART to the extent Plaintiff's state law negligence claim against Sheriff Peterkin and Major Revels in their official capacity are DISMISSED and Plaintiff's state medical malpractice claim is DISMISSED. In all other aspects, Defendants' motion is DENIED.(Taylor, Abby)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
ROBERT LEWIS,
Plaintiff,
v.
HUBERT PETERKIN, et al.,
Defendants.

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1:19CV418

ORDER
This matter is before this court for review of the
Memorandum Opinion and Recommendation (“Recommendation”) filed
on August 14, 2020, by the Magistrate Judge in accordance with
28 U.S.C. § 636(b). (Doc. 32.) In the Recommendation, the
Magistrate Judge recommends that Defendants Hubert Peterkin,
Nachia Revels, and Hoke County’s Motion for Judgment on the
Pleadings, (Doc. 27), be granted in part to the extent
Plaintiff’s claims against Hoke County be dismissed, Plaintiff’s
state law negligence claim against Sheriff Peterkin and Major
Revels in their official capacity be dismissed, and Plaintiff’s
state medical malpractice claim be dismissed. In all other
aspects, Defendants’ motion should be denied. The Recommendation
was served on the parties to this action on August 14, 2020.
(Doc. 33.) Plaintiff filed objections, (Doc. 6), to the
Recommendation. Objections were also filed by Defendants Hubert

Peterkin, Nachia Revels, and Nachia Revels, (Doc. 35); Southern
Health Partners, (Doc. 36); and Kathryn McKenzie, (Doc. 37).
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 [M]agistrate [J]udge. . . . [O]r recommit the matter
to the [M]agistrate [J]udge with instructions.” Id.
The court will briefly address two specific issues raised
by Plaintiff.
First, Plaintiff asserts that the Magistrate Judge erred in
concluding that Hoke County is not a proper defendant in this
action. (Doc. 34 at 1-4.)1 Plaintiff’s Complaint asserts that
“Hoke County is responsible for the policies and duty of care of
the inmate population of the Hoke County Detention Center[.]”
(Doc. 1 at 18.) The Magistrate Judge found that Plaintiff’s
“attempt to attach liability to Hoke County through the actions
of the Sheriff’s Office employees is improper.” (Doc. 32 at 8
(citing Landry v. North Carolina, Civil Action No. 3:10-CV-0585-

All citations in this 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.
1

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RJC-DCK, 2011 WL 3683231, at *4 (W.D.N.C. Mar. 11, 2011)
(unpublished), report and recommendation adopted, No. 3:10-cv585-RJC-DCK, 2011 WL 3682788 (W.D.N.C. Aug. 23, 2011)
(unpublished)). This court agrees with that finding as a general
proposition. However, Plaintiff, in his objections, argues that
N.C. Gen. Stat. § 153A-225 applies to his claims against Hoke
County, and dismissal is therefore improper. Defendants argue
that Plaintiff “offers no authority to demonstrate that it
does,” (Doc. 35 at 10), and that Plaintiff’s allegations suggest
the medical supervision was sufficient.2 For the following
reasons, this court finds dismissal of Hoke County would not be
proper at this preliminary stage of the proceedings.
A county may only be held liable under 42 U.S.C. § 1983 for
acts for which it has final “policymaking” authority. See City
of St. Louis v. Praprotnik, 485 U.S. 112, 123, (1988); cf.
McMillian v. Monroe Cnty., 520 U.S. 781, 784 (1997) (“[A] local
government is liable under § 1983 for its policies that cause
constitutional torts.”). Whether a county has final policymaking

Defendant Hoke County argues the court may take judicial
notice that Physician’s Assistants are required to be supervised
by a licensed physician. (Doc. 35 at 10 n.3.) At this stage of
the proceedings, the court declines to do so. The fact that
certain statutes may require that supervision does not establish
that such supervision was either contracted for or in fact
provided.
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authority on a particular issue is an inquiry governed by state
law. Praprotnik, 485 U.S. at 123; Stockton v. Wake County, 173
F. Supp. 3d 292, 303 (E.D.N.C. March 24, 2016).
Here, North Carolina state law appears to vest Hoke County
with policymaking authority regarding the provisions of medical
supervision, detection and treatment of certain infections and
emergency medical care to county detainees. See N.C. Gen. Stat.
§ 153A-225(a) (requiring “[e]ach unit that operates a local
confinement facility” to develop a medical plan “in consultation
with appropriate local officials and organizations, including
the sheriff, the county physician . . . .”); Cnty. of Guilford
v. Nat’l Union Fire Ins. Co. of Pittsburgh, 108 N.C. App. 1, 4,
422 S.E.2d 360, 363 (1992), aff’d, 333 N.C. 568, 429 S.E.2d 347
(1993) (North Carolina Court of Appeals interpreting that state
law “require[s] that a county provide emergency medical services
to prisoners incarcerated in the county’s jail and to pay for
such services” (internal quotations and citation omitted)).
Plaintiff’s Complaint alleges that Hoke County is
“responsible for the policies” of the Hoke County Detention
Center, (Doc. 1 at 18), and Hoke County subjected Plaintiff “to
an inadequate medical facility.” (Id. at 38.) Plaintiff’s
Complaint also alleges that Hubert Peterkin, Sheriff of Hoke
County, has a “policy or customary practice of allowing medical
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services to be rendered by non-medical personnel.” (Id. at 39.)
Additionally, the Complaint alleges that Southern Health
Partners, the detention center’s primary healthcare provider,
“maintained an unconstitutional policy or customary practice”
regarding prescription purchases. (Id. at 37.) Considering said
allegations, at this juncture, the court concludes that Hoke
County should not be dismissed from this action. See Vaught v.
Ingram, No. 5:10-CT-3009-FL, 2011 WL 761482, at *3-4 (E.D.N.C.
Feb. 24, 2011); Ellis v. Bunn, No. 7:08-CV-71-BR, 2008 WL
3876165, at *3 (E.D.N.C. Aug. 18, 2008) (unpublished). While
this court recognizes that it may be unlikely, as Plaintiff
argues, (Doc. 35 at 10), medical practices did not violate N.C.
Gen. Stat. § 153A-225, there is authority to support Plaintiff’s
claims against Hoke County, see e.g. Vaught, and the facts,
while sparse, when viewed in totality are sufficient.
Second, Plaintiff faults the Magistrate Judge for failing
to consider whether the common knowledge exception applies to
the expert testimony requirement to his medical malpractice
claim. (Doc. 34 at 4-8.) North Carolina courts have recognized
such an exception “[w]hen the jury, based on its common
knowledge and experience, can understand, evaluate, and judge
the legal reasonableness of a health care provider's actions.”
Shumaker v. United States, 714 F. Supp. 154, 159 (M.D.N.C. 1988)
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(citation omitted). The application of this exception “has been
reserved for those situations in which a physician's conduct is
so grossly negligent or the treatment is of such a nature that
the common knowledge of laypersons is sufficient to find the
standard of care required, a departure therefrom, or proximate
causation.” Bailey v. Jones, 112 N.C. App. 380, 387, 435 S.E.2d
787, 792 (1993). Further, “[t]he limited number of North
Carolina courts to apply this exception have discussed it as
applying the doctrine of res ipsa loquitur.” Warden v. United
States, 861 F. Supp. 400, 403 (E.D.N.C. 1993) (collecting
cases), aff’d, 25 F.3d 1042 (4th Cir. 1994). The “determination
of the applicable standard of care usually involves ‘highly
specialized knowledge with respect to which a layman can have no
reliable information.’” Sprecher v. Kerr, No. 2:98-CV-32-BO(2),
1999 WL 1940024, at *2 (E.D.N.C. Jan. 13, 1999) (unpublished)
(citation omitted). Here, the facts alleged in Plaintiff’s
Complaint do not fall within the narrow common knowledge
exception, nor does the Complaint give rise to any circumstances
in which res ipsa loquitur has been applied. Thus, this
objection is unpersuasive.
In sum, this court has appropriately reviewed the portions
of the Recommendation to which the objections were made and has

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made a de novo determination. For the reasons stated herein, the
Recommendation is adopted in part and rejected in part.
IT IS THEREFORE ORDERED that the Magistrate Judge’s
Recommendation, (Doc. 32), is ADOPTED IN PART AND REJECTED IN
PART. IT IS FURTHER ORDERED that the Motion for Judgment on the
Pleadings, (Doc. 27), filed by Defendants Hubert Peterkin,
Nachia Revels and Hoke County is GRANTED IN PART AND DENIED IN
PART to the extent Plaintiff’s state law negligence claim
against Sheriff Peterkin and Major Revels in their official
capacity are DISMISSED and Plaintiff’s state medical malpractice
claim is DISMISSED. In all other aspects, Defendants’ motion is
DENIED.
This the 24th day of September, 2020.

__________________________________
United States District Judge

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