Robert Lewis v. Southern Health Partners, Roderick C. Virgil, Jail Administrator Collins, Nurse Shelly, Hoke County, and Hartford Insurance Company

Opinion

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

ROBERT LEWIS, ) ) Plaintiff, ) ) v. ) 1:25CV576 ) SOUTHERN HEALTH PARTNERS, ) RODERICK C. VIRGIL, JAIL ) ADMINISTRATOR COLLINS, ) NURSE SHELLY, HOKE COUNTY, ) and HARTFORD INSURANCE ) COMPANY, ) ) Defendants. )

MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

Robert Lewis alleges that while a Defendants Roderick C. Virgil and pretrial detainee in the North Hoke County together move to Carolina prison system, he was dismiss the claims against them. See transported on three occasions to Mot. to Dismiss, Docket Entry 14. Hoke County Detention Center They contend that Lewis has failed to (“HCDC”) for probation violation state a § 1983 claim against them, the proceedings. And, each time he was statute of limitations bars the claims at HCDC, he received inadequate premised on Lewis’s earliest stays at medical care. As a result, he brings HCDC, and public official immunity this action against the defendants bars the individual capacity claims alleging constitutional violations against Virgil. See generally id. pursuant to 42 U.S.C. § 1983 and state law claims of negligence and medical For the reasons stated herein, the malpractice. See generally Compl., Court should grant in part and deny in Docket Entry 2.1 part the motion. The Court should grant in part Virgil’s motion to

1 Specifically, Lewis sues Roderick Virgil and individual capacities, and Nurse in his official and individual capacities, Shelly in her individual capacity. Jail Administrator Collins in her official dismiss the individual capacity claims officers that he could not stay against him and otherwise deny the overnight at HCDC without his motion. medications and insulin, and he asked to see a nurse. Id. ¶ 8. I. FACTS Officers called “Nurse Shelly” of The following facts are accepted as Southern Health Partners (“SHP”) to true and construed in the light most the booking room area to speak with favorable to Lewis. See Nemet Lewis. Id. ¶ 9. She told Lewis that Chevrolet, Ltd. v. SHP policies did not require her to Consumeraffairs.com, Inc., 591 F.3d conduct immediate health screenings 250, 255 (4th Cir. 2009). on inmates at HCDC on writs from prison because he was only at HCDC Lewis alleges that he was a pre-trial temporarily. Id. ¶ 10; see also id. ¶¶ 11- detainee at least during two of his 13. visits to HCDC because his underlying convictions were vacated in March Lewis did not receive any insulin for 2022. Compl. ¶ 2. He remained in the his remaining meals on June 28 and custody of the North Carolina was not permitted to check his blood Department of Adult Corrections sugar. Id. ¶ 14. The next morning, (NCDAC), though, because the Lewis felt “dizzy and fatigued with a NCDAC did not receive the necessary throbbing headache.” Id. ¶ 15. He documents until 2024. Id. ¶ 3. checked his blood sugar which was elevated at 271 mg/dL. Id. ¶¶ 15, 16. A. June 28 to June 29, 2021 SHP’s medical staff and HCDC “had a On June 28, 2021, prison guards at wholesale, sliding scale insulin policy” Nash Correctional Institution (“NCI”) according to which corrections transported Lewis to HCDC for a officers delivered or distributed probation violation hearing. Id. ¶ 5. “prepackaged insulin needs to Although the court continued the diabetics when their blood sugar hearing, Lewis was not transported levels rose above 200 mg/dL.” Id. back to NCI and was, instead, booked ¶ 17. Because Lewis’s blood sugar was overnight into HCDC. Id. ¶ 6. Lewis 271 mg/dL, a corrections officer informed the booking officers “that he obtained and gave Lewis “a syringe was an insulin-dependent diabetic filled with 4-units of Humulin-R, fast prescribed to take 10 units of long acting insulin, without a doctor’s acting Humulin-N insulin twice a day order.” Id. ¶ 18. This insulin plan before eating breakfast and dinner,” “would only be effective or used to as well as three other medications to lower his blood sugar if it was above treat his diabetes. Id. ¶ 7. But Lewis 200 mg/dL before eating a meal, but did not have any of those medications would provide him with no insulin with him. Id. He told the booking coverage to lower his blood sugar (or keep it regulated) after eating a meal.” policy” when his blood sugar levels Id. ¶ 20. rose above 200 mg/dL. Id. ¶ 38. And this insulin did not work in the same Nurse Shelly refused to contact manner as his prescribed long-acting anyone about his medications. Id. insulin. Id. ¶¶ 39-40. As a result, his ¶ 22. But the then-jail administrator blood sugar levels were “dangerously had a deputy transport Lewis back to high” on May 3 and May 4. Id. ¶¶ 43- prison on June 29. Id. ¶¶ 23-24. 44.

B. May 2 to May 5, 2022 The morning of May 3 he experienced “severe migraine headaches, dizziness On May 2, 2022, Lewis returned to and blurred vision to the point where HCDC from NCI to attend the he could not even see the picture on previously continued probation the television clearly – despite violation hearing. Id. ¶ 25. Again, the wearing prescription eyeglasses.” Id. court continued the hearing, and ¶ 45. Lewis was booked overnight at HCDC. Id. ¶ 26. As before, he did not have his An officer escorted Lewis to the insulin or other medications with him medical station to see Nurse Shelly. and received no medical evaluation. Id. ¶¶ 46-47. She refused to check his Id. ¶ 27. And Nurse Shelly refused to blood sugar and told him to leave contact the prison for his “because she did not see him medications. Id. ¶ 28. experiencing any observable signs of distress.” Id. ¶ 48. However, upon his Lewis told the new jail administrator, return to the housing unit, the officer Collins, that he could not stay at allowed him to check his blood sugar HCDC without his insulin and which was 302 mg/dL. Id. ¶ 49. As a medications and that Nurse Shelly result, Lewis received insulin as part refused to contact the prison. Id. ¶ 31. of the “wholesale, sliding scale But there were no transportation policy.” Id. officers to take Lewis to NCI, and Collins confirmed that she could not On May 4, Lewis “experience[ed] pain do anything about getting his all over his body; severe migraine medications. Id. ¶ 32. After Lewis headaches, dizziness, blurred vision threatened Collins with a lawsuit, she and numbness and tingling told him “that since he liked to sensations in his hands and feet.” Id. threaten people he would not leave ¶ 50. He convinced an officer to allow the Jail until she was ready for him to him to check his blood sugar which leave.” Id. ¶¶ 35-36. was 333 mg/dL. Id. ¶¶ 52-53. The officer took him to the medical station While at HCDC, Lewis only received to see Nurse Shelly who “had no insulin as part of the “wholesale, choice but to give Mr. Lewis 6-units of sliding scale insulin distribution insulin.” Id. ¶ 54. While there, Lewis also told Nurse Shelly of his “severe prescribed to be taken – making them case of acid reflux” that required “his ineffective.” Id. ¶ 76. prescribed acid reflux medication.” Id. ¶ 62. He threatened her with a His blood sugar level was (in units of lawsuit, and she told him “she was not mg/dL) 278 on June 27; 298, 202, writing anything down for him to use and 287 throughout the day on June against her.” Id. ¶ 64. 28; 302, 272, and 414 throughout the day on June 29; and 287, 312, and 347 On May 5, a deputy took Lewis to the throughout the day on June 30. Id. Johnston County Detention Center ¶ 77. “Every day that Nurse Shelly for a court appearance. Id. ¶ 65. passed out Mr. Lewis’ diabetic meds he told her that he had vomited on two C. June 27 to July 1, 2022 occasions and was experiencing severe migraine headaches, dizziness, Lewis returned to HCDC from NCI on nausea and blurred vision.” Id. ¶ 78. June 27, 2022 for the previously continued probation violation He also reported to her “severe hearing. Id. ¶ 67. As before, the court choking sensations at night” from his continued the hearing, and Lewis was untreated acid reflux. Id. ¶ 79. going to be booked overnight in Although Nurse Shelly told him the HCDC. Id. ¶¶ 68-69. He told Collins prison never sent that medication, that he did not want to be booked into Lewis had seen it inside a bag the HCDC because the prison had yet prison had given booking officers at again failed to send his insulin with HCDC. Id. ¶ 80. When Lewis him. Id. ¶ 71. complained of the delayed insulin and the lack of acid reflux medication, But Collins told him there were no Collins told him “that he was getting transportation officers who could what he deserved by threatening to return him. Id. ¶ 72. Nurse Shelly sue every time he came to the Jail.” Id. again refused to contact the prison for ¶ 81. his medications and would not have a SHP doctor order any. Id. ¶ 73. Lewis left HCDC on July 1, 2022. Id. §§ IV.B., IV.C. As a result, Lewis’s blood sugar levels were “dangerously high everyday” he D. Claims against Roderick was at HCDC “because the sliding C. Virgil and Hoke scale insulin was not providing County enough coverage” and “Nurse Shelly was delaying delivery of his diabetic As is relevant here, Lewis alleges that meds by at least 5 to 6 hours they were Roderick C. Virgil, as Sheriff of Hoke County, and Hoke County are liable for “denial of adequate medical care,” understood to be a claim pursuant to 42 U.S.C. § 1983 for deliberate generally Mem. of Law in Supp. of the indifference to Lewis’s serious Rule 12(b)(6) Mot. to Dismiss (“Mem. medical needs in violation of the in Supp.”), Docket Entry 15. Fourteenth Amendment. II. STANDARD OF REVIEW Specifically, Virgil, whom Lewis sues in his individual and official To state a claim, “a complaint must capacities, is allegedly liable because contain sufficient factual matter, of “his policy or custom of accepted as true, to ‘state a claim to understaffing in available relief that is plausible on its face.’” transportation officers,” which caused Ashcroft v. Iqbal, 556 U.S. 662, 678 Lewis’s “punitive detainment . . . (2009) (quoting and citing Bell without access to his prescribed Atlantic Corp. v. Twombly, 550 U.S. diabetic meds, insulin, and severe 544, 570 (2007)). That is, a plaintiff acid reflux medications . . . .” Id. ¶ 87. must make factual allegations that are “enough to raise a right to relief above And both Virgil and Hoke County are the speculative level.” See Bell allegedly liable because HCDC Atlantic Corp., 550 U.S. at 555 adopted SHP’s “unconstitutional (citation modified). “Thus, while a policies” which “denied intake plaintiff does not need to demonstrate medical screenings . . . ; denied in a complaint that the right to relief verifications of [Lewis’s] prescribed is ‘probable,’ the complaint must medications . . . ; and permitted a advance the plaintiff’s claim ‘across practice or custom that required the line from conceivable to diabetics to receive insulin under a plausible.’” Walters v. McMahen, 684 sliding scale policy – to be distributed F.3d 435, 439 (4th Cir. 2012) (quoting to [Lewis], without a doctor’s order, at Twombly, 550 U.S. at 570). the direction of nonphysicians and/or nonmedical detention officers . . . .” The Court “accepts all well-pled facts Id. ¶ 88. as true and construes these facts in the light most favorable to the Lewis also claims that Virgil and Hoke plaintiff, but does not consider legal County are liable for negligent failure conclusions, elements of a cause of to provide adequate healthcare, action, and bare assertions devoid of presumably a negligence claim under factual enhancement[,] . . . state law. See id. ¶ 97. unwarranted inferences, unreasonable conclusions, or Virgil and Hoke County argue that arguments.” Nemet Chevrolet, Ltd., Lewis has failed to state a § 1983 591 F.3d at 255. A pro se plaintiff’s claim, the statute of limitations bars complaint must be construed liberally consideration of the first two stays at in his favor. See Jehovah v. Clarke, HCDC, and the claims against Virgil 798 F.3d 169, 176 (4th Cir. 2015). in his individual capacity fail. See III. DISCUSSION (3) the defendant knew or should have known (a) that A. The § 1983 claims the detainee had the condition against Virgil in his and (b) that the defendant’s official capacity and action or inaction posed an Hoke County survive unjustifiably high risk of dismissal. harm; and (4) as a result, the detainee was harmed.” Lewis alleges that Virgil and Hoke County are liable for their failure to Id. Stated differently, a plaintiff must provide him adequate medical care at “show that the defendant’s action or HCDC. Not long ago, the Fourth inaction was, in Kingsley’s words, Circuit Court of Appeals defined the ‘objectively unreasonable,’ 576 U.S. elements of a pre-trial detainee’s [389,] 397 [(2015)]: that is, the deliberate indifference claim. See plaintiff must show that the Short v. Hartman, 87 F.4th 593 (4th defendant should have known of that Cir. 2023). Unlike a convicted condition and that risk, and acted detainee, a pre-trial detainee need not accordingly.” Id. But it is “not enough “show that the defendant had actual for the plaintiff to allege that the knowledge of the detainee’s serious defendant negligently or accidentally medical condition and consciously failed to do right by the detainee.” Id. disregarded the risk that their action at 611-12. or failure to act would result in harm.” Id. at 611.2 As relevant here to claims against the county and Virgil in his official Instead, to state a claim for deliberate capacity as sheriff, “[f]or purposes of indifference to a serious medical § 1983, a municipality is considered a need, a pre-trial detainee must ‘person’ and thus is subject to suit.” sufficiently allege Hunter v. Town of Mocksville, 897 F.3d 538, 553 (4th Cir. 2018) (citing that (1) they had a medical Monell v. Dep’t of Social Servs., 436 condition or injury that posed U.S. 658, 690 (1978)). However, a a substantial risk of serious city cannot be vicariously liable for harm; (2) the defendant the acts of its employees. Id. at 553- intentionally, knowingly, or 54. “Rather, ‘it is when execution of a recklessly acted or failed to act government’s policy or custom, to appropriately address the whether made by its lawmakers or by risk that the condition posed; those whose edicts or acts may fairly

2 At this stage of the litigation, the Court have to meet the Eighth Amendment accepts as true Lewis’s status as a pre- standard for deliberate indifference trial detainee. However, if the evidence which has a subjective prong, in addition shows that Lewis was a convicted to the objective prong described here. detainee at the relevant times, he will be said to represent official policy, plaintiff can assert a viable claim inflicts the injury that the government against a supervisor upon a showing: as an entity is responsible under § 1983.’” Id. at 554 (quoting Monell, (1) that the supervisor had 436 U.S. at 694). actual or constructive knowledge that his subordinate In other words, “municipal liability was engaged in conduct that under Section 1983 attaches only to posed a pervasive and ‘action [taken] pursuant to official unreasonable risk of municipal policy of some nature.’” Id. constitutional injury to citizens (quoting Pembaur v. City of like the plaintiff; (2) that the Cincinnati, 475 U.S. 469, 477 (1986)). supervisor’s response to that A single decision may create an knowledge was so inadequate official policy “so long as that as to show deliberate governmental unit possessed ‘final indifference to or tacit authority to create official policy.’” Id. authorization of the alleged (quoting Semple v. City of offensive practices; and (3) that Moundsville, 195 F.3d 708, 712 (4th there was an affirmative causal Cir. 1999)). link between the supervisor’s inaction and the particular “‘The question of who possesses final constitutional injury suffered policymaking authority is one of state by the plaintiff. law.’” Id. at 555 (quoting Riddick v. Sch. Bd., 238 F.3d 518, 523 (4th Cir. Shaw v. Stroud, 13 F.3d 791, 799 (4th 2000)). Courts “‘must look to the Cir. 1994) (internal quotations and relevant legal materials, including citations omitted). As to the state and local positive law, as well as “pervasive and unreasonable risk” custom or usage having the force of element, the plaintiff must allege that law.’” Id. (quoting Riddick, 238 F.3d it was “widespread, or at least has at 523). A “municipality may delegate been used on several different its final policymaking authority to occasions and that the conduct other officials or governing bodies.” engaged in by the subordinate poses Id. an unreasonable risk of harm of constitutional injury.” See id. As applicable to Virgil in his individual capacity, it is black letter Here, Virgil, (presumably in his law that a theory of respondeat official capacity) and Hoke County superior generally does not apply in contend that Lewis’s allegations do § 1983 claims against defendants in not sufficiently allege a § 1983 claim their individual capacities. See of deliberate indifference to his Monell, 436 U.S. at 694. However, a serious medical needs. See Mem. in Supp. at 13. This is so because, as they argue: (1) as pled, Lewis merely disagreed with his treatment, which is insulin; it did not effectively treat his insufficient to state a § 1983 claim; (2) diabetes like his prescribed insulin even so, HCDC’s detention officials did. For example, even after receiving are not responsible for the decisions this prepackaged insulin, it provided of the medical professionals and are him no insulin coverage to lower his permitted to rely upon their medical blood sugar or regulate it after eating judgment; and (3) any intentional a meal. As a result, his blood sugar delay on the part of the detention levels were repeatedly dangerously officials (which they deny) did not high and caused him various cause Lewis serious or significant symptoms. It was only after his blood injury. Id. at 13-16. sugar was 333 mg/dL that Nurse Shelly even gave him 6 units of Notably, the moving defendants here insulin. do not argue that Monell precludes Lewis’s claim against them. Even with this knowledge, Nurse Shelly would not contact the prison or 1. Lewis states a claim of have an SHP doctor order Lewis’s deliberate indifference. prescriptions when he returned to HCDC without them a third time. As Lewis has alleged more than his expected, Lewis’s blood sugar levels disagreement with his medical were dangerously high every day treatment. True, such a disagreement because the prepackaged insulin still is insufficient for a § 1983 claim. See, did not effectively treat his diabetes e.g., Hixson v. Moran, 1 F.4th 297, and Nurse Shelly further exacerbated 302-03 (4th Cir. 2021) (citing Wright the problem by delaying by five or six v. Collins, 766 F.2d 841, 849 (4th Cir. hours the provision of his other 1985) (citing Gittlemacker v. Prasse, diabetic medications. His blood sugar 428 F.2d 1, 6 (3rd Cir. 1970) (noting levels ranged from 202 to 414 mg/dL that exceptional circumstances are during this third stay. He reported to those in which medical care is “so Nurse Shelly that he had vomited grossly incompetent, inadequate or twice and was suffering severe excessive as to shock the general migraines, dizziness, nausea, and conscience or to be intolerable to dizziness. fundamental fairness”))). In sum, Lewis sufficiently alleged that But, here, Lewis alleges much more he had a medical condition that posed than mere disagreement. He claims a substantial risk of serious harm that he was without his prescribed 10 (diabetes). See Scinto v. Stansberry, units of long acting Humulin-N 841 F.3d 219, 230 (4th Cir. 2016) insulin twice a day before eating, (noting, in ruling that an inmate among other medications. He did not lodging a Section 1983 claim for simply disagree with the provision of denial of insulin need not produce the 4 units of Humulin-R fast acting expert testimony of a diabetic’s need for insulin to survive summary capable hands.” Iko v. Shreve, 535 judgment, that it is a “[w]ell-known F.3d 225, 242 (4th Cir. 2008) fact that diabetes is a common yet (quoting Spruill v. Gillis, 372 F.3d serious illness that can produce 218, 236 (3d Cir. 2004)). Non- harmful consequences if left medical detention officials “are not untreated for even a short period of responsible for determining the time”) (internal quotations and course of treatment or for overruling citation omitted). the opinions of those professionals.” Dale, 2024 WL 4416440, at *10. Nurse Shelly (on whom these excerpted allegations focus, but Lewis argues that the detention possibly other defendants) officers should not have relied on intentionally, knowingly, or recklessly Nurse Shelly because “he was never acted or failed to act to address the once screened or evaluated by Nurse risk that diabetes posed for Lewis. Shelly to determine what his She knew Lewis had diabetes and immediate medical needs and knew or should have known that her prescribed treatment would be.” Pl.’s actions or inactions posed an Resp. to Defs.’ Mot. to Dismiss unjustifiably high risk of harm. And, (“Resp. in Opp’n”) at 2, Docket Entry as a result, Lewis was harmed. 23. But he does not allege that any detention officer failed to provide him 2. Non-medical detention officials or stymied his access to those are entitled to rely on the evaluations or to Nurse Shelly. medical judgment of medical Furthermore, the detention officers professionals. were not required to determine Lewis’s course of treatment in the Indeed, as long as detention officials absence of Nurse Shelly’s having done ensure that medical professionals so or to overrule her opinions about attend to a detainee, they are entitled that treatment. See Dale, 2024 WL to rely on the medical judgment of 4416440, at *10. those medical professionals. See Dale v. FNU Barnes, No. 1:23CV373, 2024 As alleged here, the detention officers WL 4416440, at *10 (M.D.N.C. Oct. 4, were entitled to rely on Nurse Shelly’s 2024) (quoting Pulliam v. Super. of medical judgment in her medical Hoke Corr., No. 1:05CV1000, 2007 treatment of Lewis. However, none WL 4180743, at *6 (M.D.N.C. Nov. are named as defendants in this 20, 2007), report and action, and Virgil does not argue that recommendation adopted, (M.D.N.C. he is protected from liability for such Nov. 18, 2024)). In other words, “[i]f a prisoner is under the care of medical experts . . . , a nonmedical prison official will generally be justified in believing that the prisoner is in reliance, so the argument does not and 3) non-actionable delay (again, warrant dismissal of the claim. inapplicable to Virgil and the county).

3. The detention officials did not But neither attempts to connect the intentionally delay Lewis access three challenges above to either of to care. them to justify dismissing this claim against them. They have not argued There are no allegations that that the detention officers’ detention officials intentionally entitlement to rely on Nurse Shelly’s delayed Lewis access to medical care. medical judgments or the lack of delay Quite the opposite: he alleges that supports dismissal of this claim when he told the booking officers against either of them. during his first trip to HCDC that he could not stay overnight without his Further, Virgil in his official capacity prescription medications and asked to and the county do not advance a see the nurse, they called Nurse Shelly Monell defense and, indeed, “the to the booking room to speak with Court will not develop Defendants’ Lewis. He also alleges that, at other argument for them,” Sterling v. times, various detention officers Ourisman Chevrolet of Bowie Inc., allowed him to check his blood sugar, 943 F. Supp. 2d 577, 602 (D. Md. took him to see Nurse Shelly for 2013). treatment of high blood sugar symptoms, and provided him the Accordingly, these claims against prepackaged insulin. Virgil and the county survive.

In sum, Lewis has sufficiently stated a B. The statute of limitations § 1983 deliberate indifference claim. does not bar Lewis’s But the detention officers at HCDC claims at this stage. were entitled to rely on Nurse Shelly’s medical judgments in treating Lewis. Lewis filed this action on July 1, 2025. Accordingly, Virgil and Hoke County 4. The § 1983 claim against Virgil contend that all but the last visit to in his official capacity and Hoke HCDC are time-barred. County survives. The statute of limitations for a § 1983 As referenced above, Virgil and Hoke claim arising in North Carolina is County challenge the claim on only three years. See Tommy Davis three grounds: 1) Lewis’s mere Constr., Inc. v. Cape Fear Pub. Util. disagreement about his medical care Auth., 807 F.3d 62, 66-67 (4th Cir. (which fails as a matter of law); 2) 2015) (borrowing the statute of detention officers’ entitlement to rely limitations for a § 1983 claim from on medical judgments (which is inapplicable to Virgil and the county); North Carolina’s three-year personal when he left HCDC for the last time. injury limitations period). Resp. in Opp’n at 4. This is because the treatment at HCDC “was identical, But federal law governs the accrual of deliberate and ongoing.” Id. the § 1983 claim. See Nat’l Advert. Co. v. City of Raleigh, 947 F.2d 1158, 1162 To rely on the continuing violation (4th Cir. 1991). “A Section 1983 claim principle, “the plaintiff must establish of deliberate indifference ordinarily that the unconstitutional or illegal act accrues when a plaintiff becomes was a . . . fixed and continuing aware or has reason to know of the practice.” Nat’l Advert. Co., 947 F.2d harm inflicted.” DePaola v. Clarke, at 1166. He “must (1) identify a series 884 F.3d 481, 486 (4th Cir. 2018). of acts or omissions that demonstrate deliberate indifference to his serious “[S]ince a Rule 12(b)(6) motion aims medical need(s); and (2) place one or to test the sufficiency of the more of these acts or omissions within complaint, and the burden of proving the applicable statute of limitations an affirmative defense rests with a for personal injury.” DePaola, 884 defendant, dismissal under Rule F.3d at 487. “The statute of 12(b)(6) on the statute of limitations limitations does not begin to run on occurs in ‘relatively rare such a claim . . . until the date, if any, circumstances.’” Dickinson v. Univ. of on which adequate treatment was N.C., 91 F. Supp. 3d 755, 763 provided.” Id. (M.D.N.C. 2015) (quoting Goodman v. Praxair, Inc., 494 F.3d 458, 464 But a plaintiff may not take advantage (4th Cir. 2007)). “To succeed on a of this doctrine if his claims “are based statute-of-limitations defense at this on discrete acts of unconstitutional stage, all facts necessary to show the conduct, or those that fail to identify time bar must clearly appear ‘on the acts or omissions within the statutory face of the complaint.’” Id. (quoting limitation period . . . .” Id. (citation Goodman, 494 F.3d at 464). omitted).

Virgil and Hoke County argue that This is not the typical case in which a each of Lewis’s three visits to HCDC is detainee claims a continuing its own discrete alleged violation and, violation. Understandably, Virgil and thus, each claim accrued when he left Hoke County argue that there is no HCDC and returned to prison. See continuing violation here because Mem. in Supp. at 18-20. “BEFORE, BETWEEN, and AFTER each such period of time [that Lewis Lewis asserts that his three stays at was at HCDC] [he] was incarcerated HCDC constitute “a continuing wrong in a state prison more than 135 miles violation tolling the limitations period away under the care, custody, and from the finality of the last wrongful control of the [NCDAC] . . . .” Mem. in act,” which would be July 1, 2022 Supp. at 19. This is an attractive argument. Cf. Heard v. Sheahan, 253 arguing that because the statute of F.3d 316, 318 (7th Cir. 2001) (“This limitations begins to run when the refusal continued for as long as the detainee receives adequate treatment, defendants had the power to do the limitations period began running something about his condition, which each time Lewis returned to prison is to say until he left the jail.”). where he was, inferentially, receiving adequate care. See Mem. in Supp. at But it lacks support. Specifically, 19-20 (citing DePaola, 884 F.3d a Virgil and Hoke County rely on a 487). Third Circuit case from 1981 as proof that Lewis merely alleges “isolated, Had Lewis alleged different conduct separate, and discrete acts[.]” See by different individuals during each of Mem. in Supp. at 19 (citing Jewett v. his stays at HCDC, this argument Int’l Tel. and Tel. Corp., 653 F.2d 89, might gain more traction. For 91 (3d Cir. 1981)). Jewett is an example, the court in Anselme v. employment discrimination case Fluvanna Corr. Ctr. for Women, No. where the plaintiff alleged, as a 3:20-cv-5, 2020 WL 7407467, at *3 continuing violation, a handful of (W.D. Va. Dec. 17, 2020), found no discrete actions her employer took, continuing violation under those some of which occurred outside of the circumstances. Two female plaintiffs operative limitations period, tied sued their prison facility, the warden, together by the plaintiff’s ensuing and three other prison officials mental health crises in response pursuant to § 1983. Id. at *1. The first thereto. Id. at 92. While the district incident involved Officer Griffin court found a pattern and practice of sexually assaulting plaintiff 1 on April discrimination, the Third Circuit 8, 2017 and then subjecting her to disagreed, ruling that the plaintiff’s psychological abuse with sexual personality disorder “during the comments about which she filed a operative period cannot, alone, formal grievance on May 24, 2017. Id. support a finding that there is a The second incident with another continuing violation of Title VII.” Id. officer, in October 2018, did not at 93. At best, it would “be evidence involve a constitutional violation. Id. that the effects of a past violation at *2. The third incident involved continue, not that the violation itself Officer Rumsey raping plaintiff 2 on continues.” Id. November 20, 2019. Id. at *2.

Here, the effects of HCDC’s denial of The court determined that the insulin immediately abated once continuing violation doctrine did not Lewis received competent care; apply and the statute of limitations unfortunately, every time he returned barred claims related to Griffin’s there, he was denied competent care assault of plaintiff 1. Id. at *2-3. once more. Jewett is thus inapposite. “[T]he behavior in question occurred Virgil and Hoke County note this fact, over the course of three years, included three different parties, and barred acts taken in furtherance of involved three substantively different that policy.”) (citation omitted and types of misconduct, prompting alteration in Shomo) cited in different responses from [the DePaola, 884 F.3d at 487. prison].” Id. at *3. At this Rule 12(b)(6) stage, Lewis has Here, Lewis alleges the same actors, sufficiently alleged facts supporting a the same acts or omissions, and the continuing violation such that the same injuries, across each of his three statute of limitations does not bar stays at HCDC.3 Specifically, he consideration of any of the alleged alleges that each time he was at HCDC unconstitutional conduct. (including the third visit which extends into the statutory period), the C. The Court should dismiss same unconstitutional policies the individual capacity existed, Nurse Shelly acted pursuant claims against Virgil. to those policies when she refused to obtain Lewis’s medically necessary Virgil also moves for the dismissal of insulin from the prison, the the individual capacity claims prepackaged insulin distributed asserted against him pursuant to pursuant to policy was ineffective at § 1983 and state law. treating his diabetes, and Nurse Shelly was aware of its lack of efficacy As for the § 1983 claim, Virgil argues and the resulting symptoms Lewis that Lewis did not allege that he experienced. personally participated in the constitutional violations. See Mem. in In sum, he has sufficiently alleged a Supp. at 21. Indeed, for an individual fixed and continuing practice. See to be liable under § 1983, he must Nat’l Advert. Co., 947 F.2d at 1166. have “‘acted personally in the He “identif[ied] a series or acts or deprivation of the plaintiff’s rights.’” omissions . . . demonstrat[ing] Williamson v. Stirling, 912 F.3d 154, deliberate indifference . . . .” DePaola, 171 (4th Cir. 2018) (quoting Wright v. 884 F.3d at 487; see also Shomo v. Collins, 766 F.2d 841, 850 (4th Cir. City of New York, 579 F.3d 176, 182 1985)). (2d Cir. 2009) (“To assert a continuing violation for statute of Lewis does not allege that Virgil was limitations purposes, the plaintiff ever present at HCDC when he was must allege both the existence of an there. Lewis attempts to hold Virgil ongoing policy of [deliberate liable simply because he was sheriff of indifference to his or her serious Hoke County and the alleged final medical needs] and some non-time- policy-maker for HCDC. None of

3 And this dovetails with the pattern and capacity or the county would have practice allegations that would defeat any mounted, see supra § III.A.4. Monell defense that Virgil in his official these actions support Virgil’s personal mere negligence, by virtue of their liability for alleged constitutional office, and within the scope of their violations. Lewis did not address this governmental duties.” Bartley v. City challenge in his response in of High Point, 873 S.E.2d 525, 533 opposition to the motion to dismiss, (N.C. 2022). perhaps because he did not intend to allege the § 1983 claim against Virgil Correspondingly, a public official will in his individual capacity. See Compl. not be immune if his “action was (1) ¶¶ 87, 88. outside the scope of official authority, (2) done with malice, or (3) corrupt.” Virgil also moves to dismiss the state Id. (quotations and citation omitted). law claim against him, arguing that he To act with malice is to act wantonly is entitled to public officer/official “contrary to the actor’s duty” with the immunity. See Mem. in Supp. at 22. intention to injure another. Thomas, Lewis contends that Virgil waived 810 F. Supp. 3d at 748 (explaining immunity when he purchased liability that the actor’s intent can be insurance. See Resp. in Opp’n at 5. constructive where it “is so reckless or so manifestly indifferent to the Lewis brings a claim for negligent consequences, where the safety of life failure to provide adequate healthcare or limb is involved”). against all the defendants (which is separate from the medical Here, there is no allegation that Virgil malpractice claim he asserts against acted outside the scope of his official SHP and Nurse Shelly). authority, or acted with malice, or intended to injure Lewis. And Lewis “For over a century, North Carolina does not dispute this in his response; has recognized an immunity for instead, he focuses solely on the public officials charged with purchase of liability insurance. negligence in the performance of their duties.” Thomas v. McFadden, 810 F. Unlike public official immunity which Supp. 3d 732, 747 (W.D.N.C. 2025). A protects public officials from personal sheriff is a public official for purposes liability, governmental immunity of public official immunity. See protects counties and thus county Hensley on behalf of North Carolina actors sued their official capacities v. Price, 876 F.3d 573, 587 (4th Cir. from liability. See Hart v. Brienza, 2017) (applying North Carolina law). 784 S.E.2d 211, at 215-17 (N.C. Ct. App. 2016). And it is governmental “Public official immunity, a judicially- immunity that a county can waive created doctrine, is ‘a derivative form’ under certain circumstances with the of governmental immunity which purchase of liability insurance. See id. shields public officials from personal at 216-17. Lewis’s argument that liability for claims arising from Virgil waived public official immunity discretionary acts or acts constituting with the purchase of liability insurance is, therefore, misplaced. DENY IN PART Roderick C. Virgil Public official immunity protects and Hoke County’s Motion to Dismiss Virgil from individual liability for any in that it is RECOMMENDED that alleged negligence. the Court grant Roderick C. Virgil’s motion to dismiss the individual Accordingly, the Court should grant capacity claims asserted again him Virgil’s motion to dismiss the and otherwise DENY the motion. individual capacity claims asserted against him. IV. CONCLUSION It is hereby RECOMMENDED that the Court GRANT IN PART AND

J □□ Gibson McFadden United States Magistrate Judge

August 6, 2026 Durham, North Carolina