Julio Zelaya Sorto v. Cheerag Dipakkumar Upadhyaya

Opinion

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

JULIO ZELAYA SORTO, ) ) Plaintiff, ) ) v. ) 1:24CV1089 ) CHEERAG DIPAKKUMAR ) UPADHYAYA, ) ) Defendant. )

MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

Julio Zelaya Sorto, an inmate in the North Carolina prison system, has I. BACKGROUND sued Dr. Cheerag Dipakkumar Sorto alleges that he suffers from Upadhyaya for failing to provide multiple medical conditions, medical care. See Docket Entry 1 including a “herniated disc,” muscle (“Compl.”) at 5–8. Sorto’s case is now spasms, “degeneration of disc joints,” before the Court on his motion to “cervical spine multilevel amend his Complaint, Docket Entry osteophytes,” and signs of 13, and Upadhyaya’s motion to “degeneration disc disease.” Compl. at dismiss, Docket Entry 15. It is 7. As a result, he experiences pain recommended that the Court deny throughout his lower body. See id. Sorto’s motion to amend his

Complaint. It is further recommended Sorto alleges that in April of 2024, that the Court grant in part and deny “Dr. Upadhyaya . . . personally in part Upadhyaya’s motion to examined [him] and he determined dismiss. Specifically, while Sorto has that [it] was . . . medical [sic] advanced a plausible Eighth necessary to administer [an] epidural Amendment claim, his First spinal injection.” Id. at 5. Dr. Amendment claim and state medical Upadhyaya told Sorto that he would malpractice claims both fail, as set “orde[r] and recommend an epidural forth below. steroid injection for him to help relie[ve] the low[er] back pain.” Id. Later, however, “Dr. Upadhyaya II. MOTION TO AMEND refused to treat” Sorto, including by COMPLAINT “refus[ing] to arrange follow up care The Court should deny Sorto’s motion [for] neurosurgery to administer [a] to amend his Complaint to add the spine injection.” Id. at 6. Prison staff University of North Carolina at called Upadhyaya in July of 2024, to Chapel Hill as an additional report Sorto’s worsening lower back defendant. See Docket Entry 13. pain, but Upadhyaya would not refer “Leave to amend a pleading should be Sorto for pain management. Id. denied in only certain circumstances, Further, prison staff began to have such as if the amendment would be difficulty scheduling appointments futile.” Brainchild Surgical Devices, with Upadhyaya, and Upadhyaya LLC v. CPA Glob. Ltd., 144 F.4th 238, failed to give Sorto access to the 257 n.14 (4th Cir. 2025) (citation medication Upadhyaya had modified). An amendment is futile if it recommended. Id. Sorto alleges that would add defendants who are Upadhyaya denied him treatment immune under the Eleventh because Sorto had previously “filed a Amendment. E.g., Curry v. South lawsuit against the University of Carolina, 518 F. Supp. 2d 661, 668– North Carolina hospitals at Chapel 69 (D.S.C. 2007). The Eleventh Hill (UNCH) [against Upadhyaya’s] Amendment deprives this Court of colleague doctor, Kevin Anthony jurisdiction to hear a suit brought Carniero, MD, [in] February 2023.” against a state by a citizen. See U.S. Id. at 7. Const., amend. XI; Albert v. Lierman,

152 F.4th 554, 560 (4th Cir. 2025). Sorto alleges that Upadhyaya’s

conduct violated the First Here, Sorto seeks to “add a new Amendment, Eighth Amendment, Defendant[,] University of North “Fourteenth Amendment Title II,” Carolina Hospitals at Chapel Hill” to “state law, and the “spine policy” of his Complaint. Docket Entry 13 at 2. the North Carolina prison system and This amendment would be futile the University of North Carolina because the University of North healthcare system. Id. at 5. He seeks Carolina healthcare system is an arm damages compensating him for of the state of North Carolina, and is “medical and other expenses,” “for the therefore immune from Sorto’s suit value of any part of his body or under the Eleventh Amendment. See physical functioning which cannot be Singh v. Univ. of N. Carolina at replaced or restored,” for “pain and Chapel Hill, 659 F. Supp. 3d 659, 672 suffering,” and for the costs of (M.D.N.C. 2023) appeal dismissed litigation. See id. at 8. sub nom. Singh v. Univ. of N. Carolina Health Care Sys., No. 23- 1350, 2023 WL 6374188 (4th Cir. June 20, 2023); Solomon v. UNC Healthcare, No. 5:16-CV-24-FL, 2016 WL 6768920, at *4 (E.D.N.C. Oct. 19, The Court “accepts all well-pled facts 2016), report and recommendation as true and construes these facts in adopted, No. 5:16-CV-24-FL, 2016 the light most favorable to the WL 6683470 (E.D.N.C. Nov. 14, plaintiff, but does not consider legal 2016); Thomas v. North Carolina, conclusions, elements of a cause of No. 3:12-CV-00038-FDW, 2013 WL action, and bare assertions devoid of 566481, at *7 (W.D.N.C. Feb. 13, factual enhancement[,] . . . 2013), aff’d sub nom. Thomas v. NC, unwarranted inferences, 539 F. App’x 124 (4th Cir. 2013). The unreasonable conclusions, or Court should therefore deny Sorto’s arguments.” Nemet Chevrolet, Ltd. v. motion as futile. Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir. 2009) (citation III. MOTION TO DISMISS modified). A pro se plaintiff’s complaint must be construed liberally Because Sorto has failed to state a in their favor. See Jehovah v. Clarke, claim for First Amendment retaliation 798 F.3d 169, 176 (4th Cir. 2015). and medical malpractice, the Court should dismiss both claims. But Sorto A. Sorto Has Not Stated a First has stated a claim that Upadhyaya Amendment Retaliation Claim. was deliberately indifferent to Sorto’s serious medical needs in violation of “To state a colorable First the Eighth Amendment. Amendment retaliation claim, a plaintiff must allege that (1) he To state a claim, “a complaint must engaged in protected First contain sufficient factual matter, Amendment activity, (2) the accepted as true, to ‘state a claim to defendant took some action that relief that is plausible on its face.’” adversely affected his First Ashcroft v. Iqbal, 556 U.S. 662, 678 Amendment rights, and (3) there was (2009) (quoting and citing Bell a causal relationship between his Atlantic Corp. v. Twombly, 550 U.S. protected activity and the defendant’s 544, 570 (2007)). That is, a plaintiff conduct.” Martin v. Duffy, 977 F.3d must make factual allegations that are 294, 299 (4th Cir. 2020). Regarding “enough to raise a right to relief above the causation element, the plaintiff the speculative level.” See Bell must plausibly allege “that the Atlantic Corp., 550 U.S. at 555 defendants were aware of the (citation modified). “Thus, while a plaintiff’s engaging in a protected plaintiff does not need to demonstrate activity and show some degree of in a complaint that the right to relief temporal proximity to suggest a is ‘probable,’ the complaint must causal connection.” Gowen v. advance the plaintiff’s claim ‘across Winfield, 130 F.4th 162, 173–74 (4th the line from conceivable to Cir. 2025) (citation modified) (finding plausible.’” Walters v. McMahen, the causation element satisfied at the 684 F.3d 435, 439 (4th Cir. 2012) pleading stage by a temporal (quoting Twombly, 550 U.S. at 570). proximity of “just hours”); see also Porter v. Bd. of Trs. of N. Carolina that Sorto seeks to bring a “state law” State Univ., 72 F.4th 573, 584 (4th claim against him.1 See Compl. at 5. Cir. 2023) (finding the causation element unsatisfied at the pleading The Court may exercise supplemental stage by a temporal proximity of eight jurisdiction, pursuant to 28 U.S.C. to ten months). § 1367(a), over “all other claims that are so related to [the federal] claims in Here, Sorto has not plausibly alleged the action . . . that they form part of the causation element. Sorto claims the same case or controversy[.]” In that Upadhyaya retaliated against deciding whether the claims form part him because Sorto had previously of the same case or controversy, the “filed a lawsuit against the University courts look to whether “[t]he state and of North Carolina hospitals at Chapel federal claims . . . derive from a Hill (UNCH) over his colleague common nucleus of operative fact.” doctor, Kevin Anthony Carniero, MD, United Mine Workers of Am. v. Gibbs, [in] February 2023.” Compl. at 7. But 383 U.S. 715, 725 (1966); see also Sorto alleges no facts plausibly White v. Cnty. of Newberry, 985 F.2d suggesting that Upadhyaya was aware 168, 171 (4th Cir. 1993) (stating a of Sorto’s previous lawsuit. And Sorto district court may properly exercise alleges a significant amount of time— supplemental jurisdiction over state over a year—between the filing of his claims if they arise out of a common previous lawsuit (in February 2023) nucleus of operative facts such that and Upadhyaya’s allegedly injurious plaintiff would ordinarily be expected conduct (between April and July to try claims in one judicial 2024). Id. at 5–7. Sorto has therefore proceeding). Here, supplemental failed to state a First Amendment jurisdiction would exist if the retaliation claim against Upadhyaya. Complaint alleged a viable medical malpractice claim under North B. Sorto Has Not Stated a Medical Carolina law. Malpractice Claim. However, North Carolina Rule of Civil Liberally construed, Sorto’s Procedure 9(j) requires dismissal of complaint attempts to allege a state any medical malpractice claim where medical malpractice claim against the complaint does not allege that Upadhyaya because it states that either (1) a medical expert has Upadhyaya “breached his duty,” and reviewed the medical records at issue

1 “North Carolina courts distinguish and “[a]llegations of negligence . . . arise between claims of medical malpractice out of policy, management, or . . . and assertions of “ordinary administrative decisions.” Sutton v. negligence,” where “[m]edical Rockingham Cnty., No. 1:21CV95, 2022 malpractice actions allege negligence WL 960460, at *6 (M.D.N.C. Mar. 30, relating to medical decisions requiring 2022) (citation modified). Sorto’s instant clinical judgment and intellectual skill” suit falls into the former bucket. and is willing to testify that Kletzing, No. 7:23-CV-00530, 2025 malpractice occurred, or (2) liability WL 974111, at *4 (W.D. Va. Mar. 31, could be established via res ipsa 2025). There is both a “subjective and loquitur. Federal courts have an objective component” to a consistently held that a “claim for deliberate indifference claim. Iko v. medical malpractice under North Shreve, 535 F.3d 225, 241 (4th Cir. Carolina law that does not facially 2008); accord Hixson v. Moran, 1 comply with [Rule 9(j)], must be F.4th 297, 302 (4th Cir. 2021). “The dismissed.” E.g., Lewis v. Peterkin, plaintiff must demonstrate that the No. 23-7020, 2025 WL 3002826, at officers acted with ‘deliberate *1 (4th Cir. Oct. 27, 2025); Estate of indifference’ (subjective) to the Williams–Moore v. Alliance One inmate’s ‘serious medical needs’ Receivables Mgmt. Inc., 335 (objective).” Iko, 535 F.3d at 241. F.Supp.2d 636, 649 (M.D.N.C. 2004). Here, Sorto has sufficiently alleged Further, “res ipsa loquitur is both elements. inappropriate in the usual medical malpractice case, where the question 1. Sorto Has Sufficiently Alleged a of injury and the facts in evidence are Serious Medical Need. peculiarly in the province of expert “A serious medical need is one that opinion.” Robinson v. Duke Univ. has been diagnosed by a physician as Health Sys., Inc., 747 S.E.2d 321, 329 mandating treatment or one that is so (N.C. App. 2013). obvious that even a lay person would

easily recognize the necessity for a Here, Sorto’s Complaint contains no doctor’s attention.” Iko, 535 F.3d at allegations regarding expert 241 (citation modified); accord Short witnesses. It is also not an exceptional v. Hartman, 87 F.4th 593, 612 (4th case where res ipsa loquitor might Cir. 2023). Here, Sorto has alleged apply, because whether a doctor that Upadhyaya originally told him should order a spinal injection is not that a spinal injection was “medically common knowledge. Thus, Sorto’s necessary.” Compl. at 7. Sorto has medical malpractice claim must be therefore sufficiently alleged a serious dismissed under Rule 9(j). medical need for the purposes of the pleading stage. C. Sorto Has Stated a Claim for Deliberate Indifference Under 2. Sorto Has Sufficiently Alleged the Eighth Amendment. Deliberate Indifference. A physician who treats a state Deliberate indifference involves two prisoner acts under color of state law, elements: (1) “actual knowledge of the such that they may be liable for risk of harm to the inmate,” and (2) deliberate indifference to serious the defendant’s “recogni[tion] that his medical needs under Section 1983. actions were insufficient to mitigate See Conner v. Donnelly, 42 F.3d 220, the risk of harm to the inmate.” Iko, 225 (4th Cir. 1994); accord Tolbert v. 535 F.3d at 241; accord Short, 87 F.4th at 612. Given that these and a physician over the inmate’s requirements speak to a defendant’s proper medical care” “fall[s] short of mental state, allegations of mere showing deliberate indifference.” negligence or medical malpractice are Jackson v. Lightsey, 775 F.3d 170, 178 insufficient to state a claim for (4th Cir. 2014) (brackets omitted). deliberate indifference. See Estelle v. Gamble, 429 U.S. 97, 107 (1976); But Estelle is not the end of the story. Moskos v. Hardee, 24 F.4th 289, 297 In Pfaller v. Amonette, 55 F.4th 436, (4th Cir. 2022). 448–52 (2022), the Fourth Circuit found that a genuine issue of material In Estelle—a case often cited on fact existed over whether a physician deliberate indifference, e.g., Moreno had been deliberately indifferent. v. Bosholm, 151 F.4th 543, 573 (4th There, a physician had not ordered Cir. 2025)—the Supreme Court found additional testing despite the that a plaintiff failed to state a claim plaintiff’s medical results meeting a for deliberate indifference. See 429 threshold that called for additional U.S. at 107. The plaintiff alleged that testing. See id. The Fourth Circuit they received extensive medical care, held that a “reasonable jury could but that their care did not include infer that [the physician] opted to tests for a back injury. See 429 U.S. at ignore” the threshold being met, 107. The Court held that these which would constitute deliberate allegations suggested “an inadvertent indifference. Id. at 449. The court failure to provide adequate medical further framed the facts as not posing care,” not “unnecessary and wanton “a question of disagreement over [the infliction of pain” or indifference plaintiff’s] preferred care,” but “repugnant to the conscience of instead “a question of whether [the mankind,” as would be necessary to plaintiff] failed to receive adequate violate the Eighth Amendment. See treatment at all.” Id. at 452. id. at 105–06. The Court additionally stated that “the question [of] whether Here, read in the light most favorable [additional testing is necessary] is a to him, Sorto’s Complaint alleges that classic example of a matter for Upadhyaya told Sorto a certain medical judgment,” not legal treatment was medically necessary, adjudication. See id. at 107. As a then refused to provide that result, the Fourth Circuit has treatment, even in the face of phone “consistently found” that calls from prison staff reporting that “disagreement between an inmate Sorto’s symptoms were worsening.2

2 Upadhyaya alleges that he did, in fact, pled allegations in the complaint as true refer Sorto to pain management, and that and all contrary allegations of the Sorto received spinal injections on June opposing party are to be disregarded.” 19, 2024. See Docket Entry 16 at 2–3. But Gerber v. Nw. Hosp. Ctr., Inc., 943 F. “[i]n considering a motion to dismiss, the Supp. 571, 574 (D. Md. 1996) (citing court must consider all facts and well- See Compl. at 5-6. These allegations IV. CONCLUSION go beyond the mere disagreement about the best course of treatment IT 1S HEREBY RECOMMENDED that the Court DENY Sorto’s motion alleged in Estelle. See 429 U.S. at 107. . . . to amend his Complaint, Docket As in Pfaller, the facts as pled suggest Ent IT IS FURTHER that Upadhyaya had actual knowledge RECOMMENDED that the Court of a risk of harm to Sorto and GRANT IN PART AND DENY. IN recognized that not treating Sorto’s PART Upadh ; i t pain would fail to mitigate that risk.3 dis} 5 a ket. t 4 See 55 F.4th at 448-52. Because Sorto ISTHUISS, oc et miry 15, an needs only to plausibly allege DISMISS Sorto's claims for First deliberate indifference at this stage, Amendment retaliation and medical his Eighth Amendment claim should Malpraciice. survive Upadhyaya’s motion to dismiss.

J ff Gibson {—_ United States Magistrate Judge

Hospital Bldg. Co. v. Rex Hosp. Trustees, admitted to making a mistake. See 55 425 U.S. 738, 740 (1976)). F.4th at 448-52. But that is not surprising: Pfaller was at summary 3 Admittedly, Sorto’s facts are not as judgment, whereas discovery has not yet strong as those in Pfaller, where the started in this case. medical threshold for additional testing was part of the record and the physician