United States District Court, E.D. North Carolina, Western Division
W. FLANAGAN UNITED STATES DISTRICT JUDGE
matter is before the court on defendants’ motions for
summary judgment (DE 69, 75, 79) pursuant to Federal Rule of
Civil Procedure 56. The motions by defendants Victoria
Nussbaumer (“Nussbaumer”), Linda Biggs
(“Biggs”), Sgt. Wesson (“Wesson”),
Corporal Gilliam (“Gilliam”), Dennis Pillmon
(“Pillmon”), Officer Jones (“Jones”)
and Craig Friedman (“Friedman”) were fully
briefed. Plaintiff did not respond to defendants Sheriff of
Bertie County and Sheriff of Martin County’s motion. In
this posture, the issues raised are ripe for decision.
OF THE CASE
a former state pretrial detainee proceeding pro se, commenced
this action by filing complaint on January 19, 2017,
asserting claims for violations of his civil rights pursuant
to 42 U.S.C. § 1983. Plaintiff alleges defendants
violated his right to privacy under the Fourteenth Amendment
to the United States Constitution by disclosing private
health information from his medical records. As relief,
plaintiff seeks monetary relief and an injunction directing
the Bertie-Martin Regional Jail to change its policies
permitting correction officer involvement in detainee medical
October 25, 2017, the court entered order consolidating this
action with Davenport v. Sheriff of Bertie County et
al., No. 5:17-CT-3016-FL (E.D. N.C. ), a similar action
plaintiff filed in this court against defendants Sheriff of
Bertie County, Sheriff of Martin County, and Friedman.
January 17, 2018, the court conducted its frivolity review of
the complaint and allowed the action to proceed. On January
31, 2018, plaintiff filed motion to appoint counsel, which
the court denied that same day. On March 7 and 26, 2018,
plaintiff filed motions to amend complaint. The court denied
the motions to amend by order entered May 17, 2018.
September 21, 2018, the court entered case management order
governing discovery and pretrial motions practice. The
parties completed discovery on or about January 21, 2019.
February 21, 2019, defendants filed the instant motions for
summary judgment. In their motion, defendants Biggs and
Nussbaumer rely upon a statement of material facts, and the
following: 1) affidavit of Biggs; 2) affidavit of Nussbaumer;
and 3) plaintiff’s medical records. In their motion,
defendants Friedman, Gilliam, Jones, Pillmon, and Wesson
(together, “officer defendants”) rely upon a
statement of material facts, and the following: 1)
declaration of Terrence Whitehurst
(“Whitehurst”), jail administrator of the
Bertie-Martin Regional Jail; and 2) declarations of
defendants Wesson, Gilliam, Pillmon, Jones, and Friedman. In
their motion, defendants Sheriff of Bertie County and Sheriff
of Martin County’s (together, “Sheriff
defendants”) rely upon a statement of material facts,
and the following: 1) declaration of John Holley
(“Holley”), the Sheriff of Bertie County; 2)
declaration of Tim Manning (“Manning”), the
Sheriff of Martin County; and 3) copies of North Carolina
responded in opposition to defendants Nussbaumer and
Biggs’s motion on April 3, 2019, relying upon an
opposing statement of material facts, plaintiff’s
affidavit, and a document concerning legal resources
available in North Carolina prisons. Plaintiff also submitted
pages marked exhibits two through six, but did not file
corresponding exhibits. Also on April 3, 2019, plaintiff
responded in opposition to the officer defendants’
motion, relying upon an opposing statement of material facts,
plaintiff’s declaration, and the same legal resources
document filed in opposition to defendants Nussbaumer and
Biggs’s motion. Plaintiff also submitted a page marked
exhibit two but did not provide a corresponding exhibit. As
noted, plaintiff did not respond to the Sheriff
defendants’ motion for summary judgment.
April 17, 2019, defendants Biggs and Nussbaumer filed reply
in further support of their motion for summary judgment. On
May 1, 2019, the officer defendants filed reply in further
support of their motion for summary judgment.
OF THE FACTS
defendants move for summary judgment, the court recounts the
facts in the light most favorable to plaintiff. On January
25, 2016, plaintiff was arrested on state criminal charges
and placed in the Bertie-Martin Regional Jail in Windsor,
North Carolina, for pretrial detention. (Pl.’s Aff. (DE
88-1) ¶ 2; Nussbaumer Aff. (DE 72-2) ¶ 4).
Defendants Nussbaumer and Biggs were licensed nurses employed
by Southern Health Partners during the relevant time period,
and they provided contract healthcare services to detainees
at the Bertie-Martin Regional Jail. (Nussbaumer Aff. (DE
72-2) ¶ 2; Biggs Aff. (DE 72-1) ¶ 2). Defendants
Gilliam, Jones, Pillmon, and Wesson were detention officers
employed at the Bertie-Martin Regional Jail during the
relevant time period. (Gilliam Decl. (DE 77-3) ¶ 2;
Jones Decl. (DE 77-5) ¶ 2; Pillmon (DE 77-4) ¶ 2;
Wesson Decl. (DE 77-2) ¶ 2). Defendant Friedman was the
Bertie-Martin Regional Jail administrator. (Friedman Decl.
(DE 77-6) ¶ 2).
Nussbaumer performed a physical on plaintiff shortly after he
arrived at the jail. (Pl.’s Aff. (DE 88-1) ¶ 3).
During that physical, plaintiff informed defendant Nussbaumer
that he was HIV positive and that he was then experiencing
intestinal distress and diarrhea. (Id.). Defendant
Nussbaumer did not initially provide plaintiff with
medication for the diarrhea, despite his numerous complaints.
(Id. ¶¶ 3-8).
March 18, 2016, plaintiff complained to detention officers
and others about his diarrhea. (See id. ¶ 10).
The officers informed defendant Nussbaumer that they would
contact the on-call nurse if plaintiff continued complaining
about loose stools over the weekend. (Nussbaumer Aff. (DE
72-2) ¶ 9). In response, defendant Nussbaumer instructed
the officers not to contact the on-call nurse if the only
issue plaintiff reported was loose stools. (Id.).
Instead, in an effort to document the complaints, defendant
Nussbaumer placed a sign-off sheet on plaintiff’s cell
door, which stated in bright red handwriting, “please
document any reports of loose bowel movements.”
(Id.; Pl.’s Aff. (DE 88-1) ¶ 10).
Nussbaumer did not inform plaintiff she had placed the
sign-off sheet on his cell door. (Pl.’s Aff. (DE 88-1)
¶ 11). The sign-off sheet was publicly accessible, and
plaintiff noticed other inmates pointing in his cell door and
laughing at him. (Id.). Plaintiff further reports
that “as a result of the posting of my personal medical
information on my cell door I was mocked, taunted, teased,
and humiliated for my sickness by random inmates.”
(Id. ¶ 15). On March 20, 2018, another inmate
agreed to remove the sign-off sheet from the door.
(Id. ¶ 14).
two months later, on May 28, 2016, plaintiff became
“distraught with anxiety and depression from inmates
randomly coming by my cell still taunting and teasing me well
after I had the medical sheet removed” and in response
to one inmate taunting him, he “jump[ed] up to verbally
confront the inmate and slip[ped] and fell hitting my head on
the floor and hurting my right shoulder.” (Id.
¶ 16). Plaintiff was sent to the emergency room as a
result of this incident, where he received treatment for his
injuries. (Pl’s Decl. (DE 91-1) ¶¶ 23-24).
The injury to plaintiff’s shoulder caused mild
arthritis between his clavicle and shoulder joint.
(Id. ¶ 27).
24, 2016, plaintiff returned to the jail after he had been
sent to a different facility for his medical issues.
(Pl.’s Aff. (DE 88-1) ¶ 18). When he arrived,
defendant Jones informed plaintiff that he must complete a
medical screening questionnaire. (Pl.’s Decl. (DE 91-1)
¶ 5; Jones Decl. (DE 77-5) ¶¶ 4-5). The
screening form requested information about plaintiff’s
HIV status. (Pl.’s Decl. (DE 91-1) ¶ 5). Plaintiff
initially refused to answer the questions on the form, but
defendant Jones informed plaintiff that he would not be seen
by medical staff if he refused to complete the questionnaire.
(Id. ¶ 6). Defendant Wesson was also present
during the encounter, a n d he agreed with defendant Jones
that plaintiff must answer the questions on the form in order
to be seen by medical staff. (Id. ¶ 7).
Defendant Wesson contacted defendant Biggs, who also
confirmed that plaintiff must complete the form.
(Id. ¶¶ 7-8). Because plaintiff needed
medical attention, he agreed to complete the form, and
thereby disclosed his HIV-positive status to defendants Jones
and Wesson. (Id. ¶ 9).
learning that plaintiff was HIV-positive, defendants Wesson
and Jones began treating plaintiff differently. (Id.
¶ 10). For example, defendant Jones stated plaintiff was
“contagious” during the June 24, 2016, incident.
(Id.). Plaintiff subsequently asked defendant Wesson
to assist him with a telephone call to his family, and
defendant Wesson responded “ain’t nobody coming
to see you” in a malicious tone. (Id.).
Plaintiff also generally alleges defendants Jones and Wesson
“mocked, bullied, defamed, and humiliated” him.
29, 2016, plaintiff did not receive his double portion meal
tray, which was required by his medical orders. (Id.
¶ 11). Plaintiff asked defendant Wesson for his double
portion. (Id.). Defendant Wesson approached
defendants Gilliam, Pillmon, and Jones and said “in the
most sarcastic way” that plaintiff wanted another meal
tray. (Id. ¶¶ 12-13). Plaintiff admits he
was given his additional food tray approximately 10 or 15