UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 19-7171

JOSHUA T. GRIFFIN,

Plaintiff - Appellant,

v.

SHANNON MORTIER, In her official and individual capacities; VAN DUNCAN, In his official and individual capacities; GLEN MATAYABAS, In his official and individual capacities; SCOTT ALLEN, In his official and individual capacities; BUNCOMBE COUNTY SHERIFF’S DEPARTMENT; BUNCOMBE COUNTY; JOHN DOE, In his official and individual capacities; OTHER UNKNOWN DEFENDANTS,

Defendants - Appellees.

Appeal from the United States District Court for the Western District of North Carolina, at Asheville. Martin K. Reidinger, Chief District Judge. (1:18-cv-00098-MR-WCM)

Submitted: October 23, 2020 Decided: November 30, 2020

Before WYNN and HARRIS, Circuit Judges, and TRAXLER, Senior Circuit Judge.

Affirmed in part, vacated in part, and remanded by unpublished per curiam opinion.

Walter E. Daniels, III, DANIELS LAW FIRM, PC, Asheville, North Carolina, for Appellant. Natalia K. Isenberg, Raleigh, North Carolina, William A. Bulfer, TEAGUE CAMPBELL DENNIS & GORHAM, LLP, Asheville, North Carolina; Adam F. Peoples, HALL BOOTH SMITH PC, Asheville, North Carolina; J. Brandon Freeman, BUNCOMBE COUNTY ATTORNEY’S OFFICE, Asheville, North Carolina, for Appellees.

Unpublished opinions are not binding precedent in this circuit.

2 PER CURIAM:

Joshua T. Griffin appeals from the district court’s orders accepting the

recommendations of the magistrate judge, granting the defendants’ motions to dismiss, and

dismissing his complaint, in which Griffin alleged claims pursuant to

and

North Carolina law. Griffin’s claims are predicated on his April 2015 incarceration at the

Buncombe County Detention Center (“BCDC”) in North Carolina, during which he

experienced significant health issues. The complaint named as defendants in their

individual and official capacities: Shannon Mortier, a registered nurse and a medical

supervisor at BCDC; Glen Matayabas, a supervisor at BCDC; Scott Allen, the Chief

Deputy of BCDC; and Buncombe County Sheriff Van Duncan. 1

The district court dismissed Griffin’s complaint pursuant to Fed. R. Civ. P. 12(b)(6)

for failure to state a claim upon which relief can be granted. For the reasons that follow,

we affirm the district court’s dismissal orders in substantial part. We vacate, however, the

dismissal of Griffin’s claims against Nurse Mortier for deliberate indifference to his serious

1 Griffin’s complaint also alleged claims against the Buncombe County Sheriff’s Department and Buncombe County. Griffin waived appellate review of the district court’s dismissal of the claims against those entities, however, by failing to object to the magistrate judge’s recommendation to dismiss those claims. See Martin v. Duffy,

(4th Cir. 2017). Additionally, the complaint named as defendants an unidentified BCDC guard and other unknown persons. The district court dismissed without prejudice those unidentified defendants because Griffin failed to timely effect service of process on them. See Fed. R. Civ. P. 4(m). Griffin’s opening brief does not contest that ruling. See Grayson O Co. v. Agadir Int’l LLC,

(4th Cir. 2017) (“A party waives an argument by failing to present it in its opening brief or by failing to develop its argument—even if its brief takes a passing shot at the issue.” (alterations and internal quotation marks omitted)). Our references to “the defendants” include only Nurse Mortier, BCDC Supervisor Matayabas, BCDC Chief Deputy Allen, and Sheriff Van Duncan.

3 medical needs and intentional infliction of emotional distress (“IIED”). We remand for

further proceedings on those claims.

I.

Because the district court dismissed Griffin’s complaint pursuant to Rule 12(b)(6),

“we accept and recite the alleged facts in the light most favorable to [Griffin].” Feminist

Majority Found. v. Hurley,

(4th Cir. 2018). The complaint alleges that,

on April 13, 2015, Griffin was arrested for driving while impaired and sentenced to 30 days

in jail. According to the complaint, Griffin was booked into BCDC on April 14, 2015,

with a plan to place him on detoxification watch.

On April 16, Griffin suffered a seizure when sitting down for lunch. During the

seizure, Griffin fell and hit his head on the floor; blood began flowing from Griffin’s right

ear. A guard witnessed Griffin’s seizure and called for medical help. Nurse Mortier

responded and observed that Griffin’s nose was bleeding and that he was acting in an

unusual and confused manner. Griffin told Mortier that his right ear hurt. Without

evaluating, examining, or treating Griffin, Mortier placed him in a holding cell for

observation. While in the holding cell, Griffin became increasingly confused. Griffin then

suffered two additional seizures, causing him to again hit his head on the floor. After these

seizures, Griffin’s respirations were shallow; a deep sternal rub was initiated, and Griffin’s

respirations resumed. An unidentified person visited Griffin’s cell and observed that

Griffin was still seizing on the floor, was unable to communicate, and was breathing in an

abnormal way.

4 The complaint alleges that someone at BCDC called for an ambulance at 12:25 p.m.,

and Griffin was transported to the hospital where a CT scan of his head was performed,

revealing a skull fracture and bruising and bleeding around the brain. Griffin subsequently

underwent a craniotomy. Griffin alleges that his head injuries have caused him permanent

health problems, including seizures, loss of brain function, memory loss, loss of hearing,

extreme migraines, irritability, fatigue, anxiety, depression, and post-traumatic stress

disorder.

Based on those allegations, the complaint alleged six claims against the

defendants—in both their individual and official capacities—pursuant to § 1983 and North

Carolina law. Specifically, the complaint alleged claims for (1) deliberate indifference to

Griffin’s serious medical needs in violation of the Eighth Amendment; (2) respondeat

superior and supervisory liability; 2 (3) failure to train and to implement proper policies

under § 1983 and Monell v. Department of Social Services,

(1978); (4) civil

conspiracy under § 1983; (5) deliberate indifference to Griffin’s serious medical needs

under § 27 of Article I of the North Carolina Constitution; and (6) IIED.

The defendants moved to dismiss the complaint pursuant to Rule 12(b)(6). The

district court, in separate orders, adopted the magistrate judge’s recommendations that the

2 Griffin’s claim for respondeat superior and supervisory liability was alleged against BCDC Chief Deputy Allen and Sheriff Van Duncan. The complaint also alleged, however, that BCDC Supervisor Matayabas was responsible for Griffin’s injuries predicated on Matayabas’s supervisory role.

5 defendants’ motions to dismiss be granted and dismissed the complaint. Griffin appealed

the district court’s orders granting the defendants’ motion to dismiss.

II.

We review an order granting a Rule 12(b)(6) motion de novo. Feminist Majority

Found.,

. “In conducting such a review, we are obliged to accept the

complaint’s factual allegations as true and draw all reasonable inferences in favor of the

plaintiff[].”

“However, legal conclusions pleaded as factual allegations, unwarranted

inferences, unreasonable conclusions, and naked assertions devoid of further factual

enhancement are not entitled to the presumption of truth.” Wikimedia Found. v. Nat’l Sec.

Agency,

(4th Cir. 2017) (internal quotation marks omitted).

“To survive a motion to dismiss, a complaint must contain sufficient factual matter,

accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal,

(2009) (quoting Bell Atl. Corp. v. Twombly,

(2007)).

“A claim has facial plausibility when the plaintiff pleads factual content that allows the

court to draw the reasonable inference that the defendant is liable for the misconduct

alleged.”

III.

A.

Our analysis begins with the district court’s dismissal of Griffin’s deliberate

indifference claims under the Eighth Amendment and § 27 of Article I of the North

Carolina Constitution. We have explained that “a prison official’s deliberate indifference

to an inmate’s serious medical needs constitutes cruel and unusual punishment under the

6 Eighth Amendment.” Gordon v. Schilling,

(4th Cir. 2019). In order to

state a plausible Eighth Amendment deliberate indifference claim, the plaintiff is required

to allege both “an objective component and a subjective component.”

“That is, the

plaintiff must [allege] that the defendant prison official acted with ‘deliberate indifference’

(the subjective component) to the plaintiff’s ‘serious medical needs’ (the objective

component).”

(quoting Estelle v. Gamble,

(1976)).

We have recognized that “[t]he objective component of a deliberate indifference

claim is satisfied by a serious medical condition.”

“And a medical condition is serious

when it has been diagnosed by a physician as mandating treatment or is so obvious that

even a lay person would easily recognize the necessity for a doctor’s attention.”

(internal quotation marks omitted).

The subjective component is met by demonstrating a defendant’s deliberate

indifference. Id. at 357. “The Supreme Court has explained that ‘deliberate indifference

entails something more than mere negligence,’ but the standard ‘is satisfied by something

less than acts or omissions for the very purpose of causing harm or with knowledge that

harm will result.’” Id. (quoting Farmer v. Brennan,

(1994)). In the

context of a claim related to the denial of medical treatment or a delay in providing such

treatment, “a defendant acts with deliberate indifference if he had actual knowledge of the

plaintiff’s serious medical needs and the related risks, but nevertheless disregarded them.”

(alteration and internal quotation marks omitted). Mere disagreements between an

inmate and prison medical staff over the inmate’s medical care, however, generally do not

establish deliberate indifference. Scinto v. Stansberry,

(4th Cir. 2016).

7 Like the Eighth Amendment to the United States Constitution, the North Carolina

Constitution prohibits “cruel or unusual punishments.” N.C. Const. art. I, § 27. The

Supreme Court of North Carolina has interpreted that constitutional provision to require

the state to provide adequate medical care to inmates. Medley v. N.C. Dep’t of Corr.,

(N.C. 1992). The parties agree on appeal that the analysis of a deliberate

indifference claim related to medical care under the North Carolina Constitution is identical

to the analysis of such a claim under the Eighth Amendment.

Consistent with Griffin’s opening brief, we focus on Griffin’s deliberate

indifference claims against Nurse Mortier. 3 Starting with the objective components of

those claims, we are satisfied that the complaint sufficiently alleges that Griffin suffered

from at least two serious medical conditions: a seizure and a head injury resulting from

that seizure.

As for the subjective components of Griffin’s claims, we conclude that Griffin has

plausibly alleged that Nurse Mortier was deliberately indifferent to those serious medical

conditions. The complaint alleges that Mortier knew that Griffin suffered a seizure, fell,

and hit his head. The complaint further alleges that Mortier knew that Griffin had ear pain

after the fall and that Mortier observed Griffin bleeding from the nose and acting in an

3 Griffin’s opening brief does not specifically address any deliberate indifference claims under the Eighth Amendment or the North Carolina Constitution against BCDC Supervisor Matayabas, BCDC Chief Deputy Allen, or Sheriff Van Duncan. Nor does Griffin’s opening brief particularly address his claims for civil conspiracy and IIED against those defendants. Accordingly, Griffin has waived any challenge to the dismissal of those claims against those defendants. See Grayson O Co.,

.

8 unusual and confused manner. According to the complaint, rather than evaluate, examine,

or treat Griffin, Mortier simply placed him in a holding cell. While in the holding cell,

Griffin became even more confused, but no medical action was taken. Only after Griffin

experienced a second seizure and hit his head on the floor of the holding cell did he receive

any medical care. We are satisfied that these allegations, at the Rule 12(b)(6) stage, are

sufficient to state the subjective components of Griffin’s deliberate indifference claims

against Mortier. See Estelle, 429 U.S. at 104–05 (ruling that deliberate indifference can be

shown by intentional denial of medical care or delay in providing such care).

Insofar as Nurse Mortier argues against Griffin’s deliberate indifference claims by

characterizing those claims as presenting mere disagreements over the proper course of

treatment for his serious medical conditions, those characterizations are inaccurate because

the complaint alleges that Griffin received no treatment at all until he suffered two

additional seizures. See Gordon,

n.14 (rejecting argument that plaintiff’s

deliberate indifference claim should fail because he merely disagreed with course of

treatment and explaining that plaintiff’s claim was predicated on “receiv[ing] no treatment

at all”). And while Mortier correctly observes that, in the Eighth Amendment context,

questions of medical judgment are generally “not subject to judicial review,” Russell v.

Sheffer,

(4th Cir. 1975), Griffin’s complaint read in his favor does not

indicate that Mortier exercised her medical judgment at all in these circumstances. For

those reasons, we conclude that the district court erred by dismissing Griffin’s deliberate

indifference claims against Mortier and vacate the dismissal of those claims.

9 B.

Next, Griffin argues that that the district court erred by dismissing his supervisory

liability claim. A supervisor can be held liable under § 1983 where: “(1) he knew that his

subordinate was engaged in conduct that posed a pervasive and unreasonable risk of

constitutional injury; (2) his response showed deliberate indifference to or tacit

authorization of the alleged offensive practices; and (3) . . . there was an affirmative causal

link between his inaction and the constitutional injury.” King v. Rubenstein,

(4th Cir. 2016) (internal quotation marks omitted).

Our review of the complaint leads us to conclude that Griffin failed to state a

plausible supervisory liability claim against any of the purported supervisory defendants—

that is, BCDC Supervisor Matayabas, BCDC Chief Deputy Allen, and Sheriff Van Duncan.

Indeed, the complaint fails to sufficiently allege that the supervisory defendants knew that

Nurse Mortier or any subordinate “was engaged in conduct that posed a pervasive and

unreasonable risk of constitutional injury.”

(internal quotation marks omitted).

Accordingly, we affirm the dismissal of Griffin’s supervisory liability claim.

C.

Griffin also contends that the district court erred by dismissing his Monell claim.

The complaint’s allegations in support of that claim, however, consist of naked assertions

that the Sheriff of Buncombe County failed to train and implement proper policies. Such

allegations “are not entitled to the presumption of truth.” Wikimedia Found.,

(internal quotation marks omitted). We thus affirm the dismissal of Griffin’s Monell

claim.

10 D.

Griffin next contests the district court’s dismissal of his § 1983 civil conspiracy

claim against Nurse Mortier. To state a civil conspiracy claim, a plaintiff must plausibly

allege that two persons “acted jointly in concert and that some overt act was done in

furtherance of the conspiracy which resulted in the deprivation of a constitutional right.”

Penley v. McDowell Cnty. Bd. of Educ.,

(4th Cir. 2017) (alterations and

internal quotation marks omitted). We conclude that Griffin’s civil conspiracy claim fails

because the complaint does not “plausibly suggest” that Mortier agreed with anyone to

“violate [Griffin’s] civil rights.” Barrett v. Pae Gov’t Servs., Inc.,

, ___, No.

19-1394,

, at *14 (4th Cir. Sept. 15, 2020). We therefore affirm the

dismissal of Griffin’s civil conspiracy claim.

E.

Finally, Griffin challenges the district court’s dismissal of his IIED claim. Under

North Carolina law, the elements of an IIED claim are “(1) extreme and outrageous conduct

by the defendant, (2) which is intended to cause and does cause (3) severe emotional

distress to another.” Turner v. Thomas,

(N.C. 2016) (alterations and

internal quotation marks omitted). As to the first element, “extreme and outrageous

conduct is that which exceeds all bounds of decency tolerated by society[,] and is regarded

as atrocious, and utterly intolerable in a civilized community.”

(citations and internal

quotation marks omitted). The second element requires a showing that the defendant

intended to cause severe emotional distress or that the defendant acted with “reckless

indifference to the likelihood” that her actions would “cause severe emotional distress.”

11 Dickens v. Puryear,

(N.C. 1981). Regarding the third element, “the

term severe emotional distress means any . . . type of severe and disabling emotional or

mental condition which may be generally recognized and diagnosed by professionals

trained to do so.” Waddle v. Sparks,

(N.C. 1992) (internal quotation

marks omitted).

As Griffin’s challenge to the dismissal of his IIED claim focuses specifically on

Nurse Mortier’s conduct, our assessment of the claim does so as well. Having reviewed

the description of Mortier’s conduct alleged in the complaint, we are satisfied that Griffin

states a plausible IIED claim against her. As to the first element, the complaint sufficiently

alleges that Mortier acted in an “extreme and outrageous” manner when she failed to

examine or treat Griffin after learning that he had suffered a seizure and struck his head.

Turner,

. And, providing further support on the first element, the

complaint alleges that Mortier placed Griffin in a holding cell—where he could apparently

further injure himself—and that no medical action was taken when Griffin became

increasingly disoriented while in the holding cell.

Regarding the second element, the complaint adequately alleges that Nurse Mortier

exhibited “reckless indifference to the likelihood” that her conduct would cause Griffin

severe emotional distress. Dickens,

. Indeed, a medical professional’s

placement of a person who had a seizure and suffered a head injury in a holding cell without

examination or treatment can support a claim that the medical professional acted with

reckless indifference to the possibility that the person may suffer further severe physical

and emotional injury.

12 As to the third element, the complaint alleges that Griffin suffers from permanent

health problems, including seizures, loss of brain function, memory loss, extreme

migraines, anxiety, depression, and posttraumatic stress disorder. We conclude that those

injuries sufficiently allege a “severe and disabling emotional or mental condition” that rises

to the level of “severe emotional distress.” Waddle,

(internal quotation

marks omitted). Because the complaint states a plausible IIED claim against Nurse

Mortier, we vacate the district court’s dismissal of that claim.

IV.

Pursuant to the foregoing, we grant the motion for leave to proceed in forma

pauperis, vacate the district court’s dismissal of Griffin’s claims against Nurse Mortier for

deliberate indifference and IIED, and remand for further proceedings on those claims. We

affirm the district court’s dismissal of all other claims. We dispense with oral argument

because the facts and legal contentions are adequately presented in the materials before this

court and argument would not aid the decisional process.

AFFIRMED IN PART, VACATED IN PART, AND REMANDED

13