Stockton v. Wake County (173 F. Supp. 3d 292, 2016)

ORDER

TERRENCE W.'BOYLE,'United States District Judge ■

This case is brought by Tanya Stockton (hereinafter “plaintiff’) under 42 U.S.C. §§ 1983 and 1988; the Fourteenth Amendment; North Carolina’s wrongful death statute, N.C.G.S. § 90-211.11 'et seq,-, and other statutory and common law for the alleged unlawful'and unconstitutional, wilful and wanton conduct pf defendants resulting in the death of her son Ralph Madison Stockton, IV (hereinafter “Stockton”) at the Wake County Detention Center (“WCDC”) on November 6, 20Í1. Compl. [D.E. 1-2] ¶¶ 61-117. Presently, there are four pending motions for summary judgment filed by. different sub-groups of defendants. Mots. Summ. J. [D.E. 102,104, 107; 109]. Plaintiff files responses in opposition to the motions [D.E. 116-119] and defendants filed replies [D.E. 132-136]. Additionally, on' March 11, 2016, attorney Andrew Buckner filed an unopposed motion to withdraw as counsel for Dr. Umesi [D.E. 137]. As explained below, the court grants Wake County’s motion for summary judgment solely as to count five of the complaint and Buckner’s motion to withdraw, and denies the remaining motions.

Factual Allegations

On November 5, 2011, at 1:00 p.m., Stockton and a friend entered Bagwell’s C-stop convenience store in Raleigh. Compl. [D.E. 1-2] ¶ 21. The store clerk (a volunteer firefighter) observed that the two were impaired arid , called the Wake County Sheriffs Office to report a possible drunk driver. Id. Deputy Bruner (not a defendant)’ responded, pulled over Stockton’s car after he left the store, and observed him to be nervous and shaking. Id. at ¶ 22. Stockton reported that he had a prescription pill problem that required methadone treatment. Id.

While Bruner returned to his patrol car, ’it is alleged that Stockton ingested a “myriad of medications contained in a thermos bottle.” Id. at ¶ 23. The deputy discovered that Stockton had an outstanding arrest warrant for underage drinking, asked to search the vehicle, and found a small quantity of marijuana. Id. Stockton took responsibility for the marijuana. Id. . '

Because of the store clerk’s observations and his own, Deputy Bruner administered an , alcosenser test which registered .00. Id. at ¶24. A citation for possession of marijuana was issued, and due to the outstanding warrant, Stockton was arrested by Deputy Walker, who had now arrived at the scene. Id. at ¶25. Deputy Walker transported Stockton to the WCDC. Id. While in transport to WCDC (about ten minutes away), Stockton fell asleep several times. Id.

At approximately 3:00 p.m., Stockton arrived at WCDC and was checked in by ... Officer Coley and Nurse Fitz, both of whom, it is alleged, should have recognized his impairment. Id. at ¶ 26-27. No further medical attention was rendered at this time, and Stockton was placed into a holding cell. Id. at ¶27-28. During the period of time in the holding cell and throughout the evening, Stockton displayed abnormal and erratic behavior.' Id. at ¶28. Due to Stockton’s behavior, Officer Coley moved Stockton into a private cell. Id. at ¶ 29. There, Stockton continued to display erratic behavior such as continuously summoning Coley and ... Officer Santelli and asking for instruction to operate the ’phone and asking to call his deceased father. Id.

Officer Santelli informed his supervisor, ... Sergeant Williams, that something was wrong with Stockton; Williams specifically instructed Santelli to do nothing; and, Santelli did nothing. Id. at ¶ 30. Officer Santelli did not personally report the observations to medical staff nor did he seek medical care for Stockton after such instruction. Id.

At 10:00 p.m., after being asked to check on Stockton due to his continued erratic behavior, defendant Nurses Anumudu and Hester observed Stockton through the glass, but neither nurse allegedly did anything more. Id. at ¶ 31.

In the holding cell, Stockton’s behavior is alleged to have become increasingly erratic and confused. Id. at, ¶ 32. Stockton attempted to place a call 16 times, 15. of which were to his mother; however, when his mother would attempt to accept the calls she was immediately disconnected. Id. At the same time, Stockton’s mother made multiple calls' to the WCDC. Id. at ¶ 33. She spoke to at least one nurse and one officer, defendant 'Officer Brown, explaining her son’s history of drug use, that he was on a multitude of drugs, and that he required careful monitoring. Id. At 10:15 p.m., Stockton was taken for a strip search and “dress out procedures,” wherein' :.. Officers Lowery and Mimms found him “spaced out” and “panicked.” Id. at ¶ 34. At approximately the same time, ... Sergeant Ransome observed Stockton and' incorrectly identified Stockton as being intoxicated by alcohol. Id. Officer Lowery informed' a nurse, alleged to be Nurse Anumudu, of Stockton’s heroin use, and Officer Lowery requested that Stockton be medically screened. Id. The nurse told Officer Lowery that Stockton would be placed on the first floor for observation. Id. This was not done. No drug screen was performed and Stockton was not placed into an observation cell. Id. Stockton was placed into an overcrowded general population pod. Id.

At 11:30 p.m., Stockton was staggering and speaking incoherently. Id. at ¶ 35. Nine minutes later, at approximately 11:39 p.m., it is alleged that Nurse Anu-mudu medically screened Stockton. Id. She conducted the screening in less then three minutes. Id. Nurse Anumudu,did nqt .attempt to identify the intoxicating agents. Id. Stockton reported to Nurse Anumudu that he had been taking methadone. Id. On the Medical Screening Form, Nurse Anumudu noted .“Heroin Protocol.” Id. On the Mental Health Screen form, Nurse Anumudu checked “yes” to the question “have you ever been in a hospital for emotional or mental health problems.” Id. Nurse Anu-mudu also referred Stockton to “psychologist/medical,”- but this was not done. Id.

At 11:42 p.m., Stockton was placed in cell 1B05. Id. ¶ 36. At 12:17 a.m., defendant Officer McClain escorted Stockton to “the Green Pod.” Id. Stockton could not control his movements appropriately, “was not moving very well,” and Officer McClain had to help Stockton into the pod. Id. Stockton could hardly talk and did not know his name. Id. He appeared intoxicated and pale. Id. He was sweating, and he had difficulty breathing. Id.

Stockton was placed into a general population cell where several inmates observed Stockton’s behavior and characterized .him as “messed'up,” “high,” and not breathing well when placed into the cell. Id. ¶37. Inmates were heard to state they thought Stockton was dying, and he sounded like he was choking. Id. Inmates informed detention staff that they believed'Stockton needed medical attention. Id.

Stockton is alleged to have informed inmate Michael Wiles that he had ingested over forty prescription pills during the traffic stop. Id. ¶ 38. In turn, Wiles informed Officer McClain on at least three occasions that Stockton ingested a large quantity of pills, needed his stomach pumped, and required medical attention. Id. Officer McClain is alleged to have responded that Stockton was a junkie and was sleeping off his high. .Id.

At 6:31 a.m., over fifteen hours after Stockton’s arrival at WCDC, Officer McClain checked on Stockton as he lay on the floor of the overcrowded pod.' Id. ¶ 39. No pulse was found, but he was warm to the touch. Id. At 6:40 a.m., 911 was called and at 6:47 a.m. EMC .arrived. Id. At 7:14 a.m., on November 6, 2011, Stockton was pronounced dead. Id.

On November 7, 2011, Clay Nichols, M.D. (“Dr. Nichols”) with the Office of the Chief Medical Examiner performed Stockton’s autopsy. /$.¶47, No.significant anatomic finding was identified to account for Stockton’s death. Id. An analysis of Stockton’s blood showed that multiple drug levels were present including amphetamine, methadone, and ben-zodiazepines,. Id. Dr. Nichols’ concluded that Stockton died as the result of the combined toxic effects of multiple medications. Id.

The supervisory requirements for jails in North- Carolina are set forth in 10A N.C.A.C. 14J.0601, and require,, at a minimum, the direct observation of each inmate in person at least twice an hour, and a heightened requirement of four times an hour for an inmate who is intoxicated, or displaying erratic behavior, or who has a previous record of mental illness. 10A N.C.A.C. 14J.0601. Plaintiff contends that WCDC employees violated this policy in three ways, Firs[t], she asserts that from 12:43 a.m. to 6:31 a.m., the inmates in Green Pod were directly observed eleven times for a total of fifteen minutes in direct' contravention of the minimum policy. Compl. ¶42. The longest 'supervisory round of observation was only three minutes. Id. These rounds were performed by defendants Officer Sabas and Officer Bayes. Id. Second, plaintiff contends that given Stockton’s behavior and his known prior mental health record, he should have'beeri'placed into an observátion cell and directly observed at least four times per hour as required by the policy, for one who is intoxicated, or displaying erratic- behavior, or who has a previous record of mental illness. Id. ¶43. Third, plaintiff contends -that Stockton’s death could have been avoided by the provision of basic medical attention, and administration . of well known and effective medication designed to promptly reverse the depressant effects of narcotic drugs. , Id. ¶ 52. All defendants were aware of the potential deadly complications of overdose from opioids and barbiturates and knew that an antidote medication was readily available to counter the effects of these drugs. ’ Id. ¶¶ 25, 30-31, 34-35.

Plaintiff further alleges that Stockton’s death is not the first time an inmate or detainee in the care, custody, and safekeeping of Sheriff Harrison, and' his agents, employees, nurses, and/or officers assigned to the WCDC, has been injured or died at the WCDC as a result of failure to properly monitor and supervise inmates and detainees; failure by Sheriff Harrison arid-others to properly supervise and train the agents, employees, nurses, and/or officers assigned to the WCDC; the failure to comply with North Carolina statutes and/or administrative codes; and/or the failure to secure adequate and emergency medical care to inmates. Id: ¶ 54. Plaintiff describes five such deaths occurring at the WCDC in the 18 months' preceding Stockton’s death. Id. ¶¶ 55-60.

8/19/14 Order, pp. 2-7. Other evidence is also now in the record and before the court including depositions, interrogatories, reports, records, expert testimony, and audio and video recordings. This evidence will be discussed and expounded where relevant below.

Discussion

Plaintiffs complaint asserts seven remaining claims: (1) violations of 42 U.S.C. §§ 1983 and 1988 by detention officers Williams, Coley, Brown, McClain, Bayes, Sabas, and- Nurse Anumudu, Compl. ¶¶ 61-67 (count one); (2) violations of 42 U.S.C. §§ 1983 and 1988 by Sheriff Harrison, Director Butler, and Dr. Umesi in their individual and official capacities, id. ¶¶ 68-78 (count two); (3) violations of 42 U.S.C. §§ 1983 and 1988 by Wake County, id. ¶¶ 79-83 (count three); (4) state-law wrongful death against detention officers Brown, McClain, Sabas, and Bayes and nursing defendants Anumudu and Hester in their individual capacities, dd. ¶¶ 84-93 (count four); (5) state-law wrongful death. against Wake County, Sheriff Harrison, WCDC Directo? Butler, and Dr. Umesi in their individual and official capacities, id. ¶¶ 94-99 (count five); (6) state-law claim of injury to a prisoner pursuant to N.C. GemStat. § 162-66 against Sheriff Harrison, Director Butler, and the detention defendants Brown, Bayes, and Sabas, id. ¶¶ 100-107 (count six); and (7) action on bonds and N.C. GemStat. § 58-76-1, et seq. as to Sheriff Harrison and Surety, id. ¶¶ 108-110 (count seven).

Summary judgment is appropriate when, after reviewing the record taken as a whole, no genuine issue of material fact exists, and the moving party is entitled to judgment as a matter' of law. Fed. R.Civ.P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The party seeking summary judgment bears the initial burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the moving party has met its burden, the nonmoving party may not rest on the allegations or denials in its pleading, Anderson, 477 U.S. at 248-49, 106 S.Ct. 2505, but “must come forward with specific facts showing that there is a genuine issue for trial,” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (emphasis and quotation omitted). A trial court reviewing a motion for summary judgment should determine whether a genuine issue of material fact exists for trial. Anderson, 477 U.S. at 249, 106 S.Ct. 2505. In making this determination, the court must view the evidence and the inferences drawn therefrom in the light most favorable to the nonmoving party. Scott v. Harris, 550 U.S. 372, 378, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007); “If the' evidence is merely colorable, or is not significantly probative, summary judgment may be granted.” Anderson, 477 at 249-50, 106 S.Ct. 2505 (internal citations omitted).

I. Motion for Summary Judgment by Wake County: Count Three.(12 U.S.C. §§ 198S and 1988) .

Wake County seeks summary judgment on count three based on plaintiffs allegation that Wake County 'is responsible for any alleged action or omission of the Sheriff, his deputies or his jailors and that Wake County was responsible for an “inadequate” medical plan. Wake County contends that the “law in North Carolina recognizes no such claim of vicarious responsibility between a County and a Sheriff and more importantly, plaintiffs fore-cast of evidence reveals no genuine issue of material fact with respect to the adequacy of the medical plan and proximate cause such that Wake County is entitled to judgment as a matter of law on plaintiffs claims under 42 U.S.C. § 1983.” Mem. Supp. Wake Cty; Mot. Summ. J., p. 12.

The doctrine of respondeat superior generally does not apply to a section 1983 action. See, e.g., Ashcroft v. Iqbal, 556 U.S. 662, 676-77, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009); Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694, 98. S.Ct. 2018, 56 L.Ed.2d 611 (1978); Carter v. Morris, 164 F.3d 215, 218, 220-21 (4th Cir.1999); Shaw v. Stroud, 13 F.3d 791, 798-99 (4th Cir.1994). Alleging that a county or municipal employee committed a constitutional violation is necessary, but not sufficient, to state a claim against a county or municipality. A county or municipality may be found liable under 42 U.S.C. § 1983 only “when execution of a government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury.” Monell, 436 U.S. at 694, 98 S.Ct. 2018; see Lytle v. Doyle, 326 F.3d 463, 471 (4th Cir.2003). Therefore, a county or municipality may not be found hable under section 1983 based on a theory of respondeat superior or simply for employing a tortfeasor. See, e.g., Connick v. Thompson, 563 U.S. 51, 60-64, 131 S.Ct. 1350, 179 L.Ed.2d 417 (2011); Bd. of Cty. Comm’rs v. Brown, 520 U.S. 397, 403-04, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997). Furthermore, for section 1983 liability to extend to a-local government, the government’s policy or custom must be the “moving force” that resulted in the constitutional violation. Monell, 436 U.S. at 694, 98 S.Ct. 2018; see also Brown, 520 U.S. at 404, 117 S.Ct. 1382 (“As our § 1983 municipal liability jurisprudence illustrates ... it is not enough for a § 1983 plaintiff merely to identify conduct properly attributable to [a] municipality. The plaintiff must also demonstrate that, through its deliberate conduct, the municipality was the ‘moving force’ behind the injury alleged.”).

A policy or custom for which a municipality may be held liable can arise in four ways: (1) through an express policy, such as a written ordinance or regulation; (2) through the décisions óf a person with final policymaking authority; (3) through an omission, such as a failure to properly train officers, that “manifest[s] deliberate indifference to the rights of citizens”; or (4) through a practice that is so “persistent and widespread” as to constitute a “custom or usage with the force of law.”

Lytle, 326 F.3d at 471 (internal citations omitted).

Plaintiff contends that Wake County was, at all relevant times, responsible for the formulation and execution of policies regarding the provision of medical care to inmates and detainees in the WCDC. Wake County, plaintiff alleges, has de fac-to policies, practices and customs which caused harm to Stockton including: a) the failure to implement proper plans, policies and/or procedures necessary to sée that inmates and detainees are provided appropriate, necessary and adequate medical care and protection from emergency and perilous medical conditions; b) the failure to draft and/or institute proper plans, policies and/or procedures designed to protect the health and welfare of inmates and detainees of the WCDC; c) the failure to draft and/or institute proper plans, policies and/or procedures regarding, medical supervision of inmates and detainees of the WCDC; d) the failure to draft and/or institute proper plans, policies and/or procedures regarding emergency medical care for inmates and detainees at the WCDC to the extent necessary for their health and welfare; e) if such policies/procedures exist, in failing to see that such policies and procedures were followed; f) the failure to implement proper and reasonable policies and procedures regarding the evaluation, monitoring, supervision, observation, and housing of inmates and detainees in the WCDC in need of medical care including, and especially inmates and detainees who are intoxicated, are displaying erratic behavior, have a previous history of mental illness, and/or have serious medical conditions; and g) other policies, customs and practices to be identified during the course of discovery and/or trial. Compl. [D.E. 1-2] ¶ 81; PI. Resp. Opp’n Wake Cty. Mot. Summ. J., pp. 3-4.

As the court held previously in denying Wake County’s motion to dismiss, “[a] county may only be held liable for acts for which the county has final policymaking authority.” Parker v. Bladen Cnty, 583 F.Supp.2d 736, 739 (E.D.N.C.2008); see Little v. Smith, 114 F.Supp.2d 437, 446 (W.D.N.C.2000). State law governs whether a county has final policymaking authority on a specific topic. See, e.g., City of St. Louis v. Praprotnik, 485 U.S. 112, 123, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988); Parker, 583 F.Supp.2d at 739.

“Under North Carolina law, sheriffs have ■ substantial independence from county government.” Parker, 583 F.Supp.2d at 739. Under the North Carolina Constitution, voters directly elect the sheriff.- See N.C. Const, art. VII, § 2. County governments do not hire sheriffs. See, e.g., Parker, 583 F.Supp.2d at 739; Little, 114 F.Supp.2d at 446. By-statute, “the sheriff, not the county encompassing his jurisdiction, has final policymaking authority over hiring, supervising, -and discharging personnel in the sheriffs office.” Parker, 583 F.Supp.2d at 739; see N.C. Gen.Stat. § 153A-103(1); Clark v. Burke Cty., 117 N.C.App. 85, 89, 450 S.E.2d 747, 749 (1994). However, North Carolina law vests the sheriff with the “statutory responsibility for the care and custody of the inmates at the county jail.” Jones v. Harrison, 4:12-CV-90-D, 2013 WL 1452861, at *2 (E.D.N.C. Apr. 9, 2013); Vaught v. Ingram, No. 5:10-CT-3009-FL, 2011 WL 761482, at *4 (E.D.N.C. Feb. 24, 2011) (unpublished); see N.C. Gen.Stat. § 162-22; Landry v. North Carolina, No. 3:10-cv-585-RJC-DCK, 2011 WL 3682788, at *2 (W.D.N.C. Aug. 23, 2011) (unpublished).

By statute, each county that operates a jail “shall develop a plan for providing medical care for prisoners in the facility.” N.C. GemStat. § 153A-225(a). The plan is to be designed to protect the health and welfare of the prisoners and provide for medical supervision of prisoners and emergency medical care for prisoners to the extent necessary for their health and welfare. Id. The county develops the medical care plan in conjunction with local authorities, including the sheriff, the county physician, and the local district health director. Id.

Wake County argues that “[p]laintiff attempts to conflate the separate statutory responsibilities of the Office of Sheriff and the County.” Mem. in ■ Supp. i Súmm. J., D.E. 103, at 18. Wake County contends that under North Carolina law, “the sheriff has exclusive custody and control of .the jail in his county,” and thus Wake County can have no vicarious liability for the Sheriff or his employees. Id. Further, Wake County argues that “[cjounties do not provide ‘medical services’ to inmates in North Carolina. However, counties do build jails and put them in to operation, including putting into place a medical plan for treatment of inmates.” Id. The North Carolina Court of Appeals, however, has construed the statute more expansively to “ ‘require that a county provide emergency medical services to prisoners incarcerated in the county’s jail and to pay for such services,’ ” Cty. of Guilford v. Nat’l Union Fire Ins. Co., 108 N.C.App. 1, 4, 422 S.E.2d 360, 362-63 (1992) (quoting Univ. of N.C. v. Hill, 96 N.C.App. 673, 675, 386 S.E.2d 755, 757, aff'd, 327 N.C. 465, 396 S.E.2d 323 (1990)) (emphasis omitted).

Furthermore, as aptly stated by plaintiff, Wake County’s argument itself creates a genuine issue of material fact for trial. Wake County argues that 1) plaintiffs evidence is insufficient on the question of whether the Jail Medical Plan was deficient, and 2) plaintiffs expert, Amy Crit-tenden, RN, is not qualified to offer her opinions regarding the Jail Medical Plan. Crittenden testified in her deposition that “the focus of the Receiving and Screening Policy is on alcohol withdrawal, which in only one facet of ‘substance abuse” and that “the policy is not sufficiently specific on how often inmates should be monitored as opposed to inmates who are suicidal.” The plan instructs that detainees at risk of suicide are to be observed every 15 minutes and inmates at risk of delirium tremors due to alcohol withdrawal shall be monitored closely by. medical staff. However, there is no directive undei the plan relating to supervision qf mentally ill inmates or those detainees significantly impaired by drugs other .than alcohol.

Stockton had a documented history of mental illness evidenced by Nurse Anumudu’s 'entry on the medical screening form and by his treatment for opioid addiction. There is also substantial evidence before the court that Stockton was experiencing a serious and escalating medical condition due to his impairment by drugs. 8/19/14 Order, pp. 12-13. It is a question of material fact as to whether jail staff failed to provide Stockton with close or heightened observation as the result of a deficient plan. Whether Wake County breached its duty to provide emergency medical services and to develop an adequate medical care plan to provide medical services and whether such breach is the proximate cause of Stockton’s death are indeed questions of material fact. Cf. Olds v. United States, 473 Fed.Appx. 183, 185 (4th Cir.2012)" (per curiam) (unpublished) (“Proximate cause is an inference of fact to be drawn from other facts and circumstances. Only when the facts are all admitted and only one inference may be drawn from them will the court declare whether an act was the proximate cause of an injury of not.”). Thus, the court denies Wake County’s motion for summary judgment as to count three of the complaint. See Vaught, 2011 WL 761482, at *3-4; Ellis v. Bunn, No. 7:08-CV-71-BR, 2008 WL 3876165, at *2-3 (E.D.N.C. Aug. 18, 2008) (unpublished).

II. Motion for Summary Judgment by Dr. Umesi

1. Count Two (42 U.S.C. §§ 1983 and 1988)

Plaintiffs claim against Dr; Umesi is premised on supervisory liability. Section 1983 claims against supervisors are cognizable when liability is not premised upon respondeat superior but upon “a recognition that supervisory indifference or tacit authorization of subordinates’ misconduct may be a causative factor in the constitutional injuries they inflict on those committed to their care.” Slakan v. Porter, 737 F.2d 368, 372 (4th Cir.1984). To establish supervisory liability under section 1983, a plaintiff must establish three things:

(1) that the supervisor had actual or constructive knowledge that his subordinate was engaged in conduct that posed “a pervasive and unreasonable risk” of constitutional injury to citizens like the plaintiff; (2) that the supervisor’s response to that knowledge was so inadequate as to show “deliberate indifference to or tacit authorization of the alleged offensive practices ... ”; and (3) that there was an “affirmative causal link” between the supervisor’s inaction and the particular constitutional injury suffered by the plaintiff.

Shaw, 13 F.3d at 799; see Iqbal, 556 U.S. at 677, 129 S.Ct. 1937; Rizzo v. Goode, 423 U.S. 362, 371, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976); Baynard v. Malone, 268 F.3d 228, 235 (4th Cir.2001). The subordinate’s conduct must be “pervasive,” meaning that “the conduct is widespread, or at least has been used on several different occasions and that the conduct engaged in by the subordinate poses an unreasonable risk of harm of constitutional injury,” Shaw, 13 F.3d at 799 (quotation omitted). Although

a supervisor cannot be expected ... to guard against the deliberate criminal acts of his properly trained employees when he has no basis upon which to anticipate the misconduct!,] [a] supervisor’s continued inaction in the face of documented widespread abuses ... provides an independent basis for finding [that the supervisor] either was deliberately indifferent or • acquiesced in the constitutionally offensive conduct of his subordinates.

Slakan, 737 F.2d at 373; see Randall v. Prince George’s Cty., Md., 302 F.3d 188, 206 (4th Cir.2002).

Dr. Umesi is a physician duly licensed under the láws of the'State of North Carolina, the Medical Director (also referred to as the designated Health Authority) of the WCDC, and an agent and employee of Wake County and/or Sheriff Harrison at the time of the alleged events. Compl. [D.E.1-2] ¶5. As the director, he is charged with supervision of the nurses at WCDC including, but not limited to, defendant Ánumudu. Id. One of his roles as the director is to assist in developing the Plan required by North Carolina statute which is approved and adopted annually by the Sheriff and Waké County. Umesi Dep. pp. 15, 21-23 & Ex; 18. Dr. Umesi also provided clinical treatment to inmates at the jail, but he was not present (and that is not contested) for the events at issue. Id. at 81. .

There are genuine issues of mate-rial fact concerning the sufficiency of Dr. Umesi’s established medical protocols, policies, and procedures; the manner in which he trained, or failed to train, the nurses, including Nurses AnumudU and Hester; and whether any such failure(s) were a proximate causé of Stockton’s death. Compare, Umesi Dep. pp. 42, 53-54, 56, 62, 76-77, 84-85, 107, 109, 152-53, 220-21, 256, Ex. 18 (protocol) with Anumudu Dep. pp. 60, 93, 101, 103, 142; Hester Dep. pp. 52-53; Fitz Dep. p. 38; 10 N.C.A.C. 14J.0601. Thus, the court denies Dr. Umesi’s motion for summary judgment.

Alternatively, Dr. Umesi asserts the defense of qualified- immunity. The doctrine of qualified immunity provides that “government officials performing discretionary functions generally are shielded from liability,-for-civil damages insofar as their conduct does not violate clearly established ‘statutory or eonstitu-tional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982); see Mullenix v. Luna, — U.S. -, 136 S.Ct. 305, 308, 193 L.Ed.2d 255 (2015); Taylor v. Barkes, — U.S. -, 135 S.Ct. 2042, 2044, 192 L.Ed.2d 78 (2015) (per curiam); City & Cty. of San Francisco v. Sheehan, — U.S. -, 135 S.Ct. 1765, 1774, 191 L.Ed.2d 856 (2015); Carroll v. Carman, — U.S.-, 135 S.Ct. 348, 350, 190 L.Ed.2d 311 (2014) (per curiam); Reichle v. Howards, — U.S. -, 132 S.Ct. 2088, 2093, 182 L.Ed.2d 985 (2012). Qualified immunity protects “all but the plainly incompetent or those who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986); see Mullenix, 136 S.Ct. at 308; Taylor, 135 S.Ct. at 2044; Sheehan, 135 S.Ct. at 1774; Carroll, 135 S.Ct. at 350.

The court asks two questions to determine whether qualified immunity applies. See, e.g., Reichle, 132 S.Ct. at 2093; Pearson v. Callahan, 555 U.S. 223, 232, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009); Brockington v. Boykins, 637 F.3d 503, 506 (4th Cir.2011); Doe ex rel. Johnson v. S.C. Dep’t of Soc. Servs., 597 F.3d 163, 169 (4th Cir.2010). Courts have discretion about which question to address first. Pearson, 555 U.S. at 236, 129 S.Ct. 808. The court must determine “whether the facts that a plaintiff has alleged ... make out a viola tion of a constitutional right.” Id. at 232, 129 S.Ct. 808. The court also must determine “whether the -right at issue was ‘clearly established’ at the time of defendant’s alleged misconduct.” Id. “A Government official’s conduct violates clearly established law when, at the time of the challenged conduct, the contours of a right are sufficiently clear that every reasonable official would have understood that what he is doing violates that right.” Ashcroft v. al-Kidd, 563 U.S. 731, 131 S. Ct. 2074, 2083, 179 L.Ed.2d 1149 (2011) (alterations and quotations omitted). The United States Supreme Court does “not require a case directly on point, but existing precedent must have placed the statutory or constitutional question beyond debate.” Id.; see Reichle, 132 S.Ct. at 2093. Thus, Dr. Umesi is entitled to summary judgment on qualified immunity grounds if the answer to either question is “no.” See, e.g., Reichle, 132 S.Ct. at 2093; al-Kidd, 131 S.Ct. at 2080; Miller v. Prince George’s Cty., 475 F.3d 621, 627 (4th Cir.2007); Bostic v. Rodriguez, 667 F.Supp.2d 591, 606 (E.D.N.C.2009).

Having concluded that' plaintiff has successfully alleged violations of clearly established constitutional rights through supervisory liability, the court likewise concludes that Dr. Umesi is not entitled to qualified immunity on the current record. ■

2. Count Five (wrongful death)

Dr. Umesi next asserts that he is entitled to summary judgment on the wrongful death claim for three reasons: 1) plaintiff failed to produce any evidence establishing that Stockton died as a result of any act or omission by Dr. Umesi; 2) plaintiff failed to comply with the requirements of Rule 9(j); and 3) governmental or sovereign immunity bars this claim in both Dr. Ume-si’s official and individual capacity,

i. Failure to produce evidence

Dr. Umesi asserts in this summary judgment motion that there is an insufficient forecast of evidence to support a claim that he breached the standard of care in violation of N.C.G.S. §■ 90-21.11, et seq. As set out above, there is a genuine issue of material fact as to whether Dr. Umesi breached the standard of care for his responsibilities as the medical director of the Jail to the detainees, including Stockton. This is evidenced by the manner in which he established jail medical protocols and the manner in which he trained, or failed to train, Nurses Anumudu and Hester in following the protocols. Compare, Umesi Dep. pp. 42, 53-54, 56, 62, 76-77, 84-85, 107, 109, 152-153, 220-21, 256, Ex. 18 (protocol) with Anumudu Dep. pp. 60, 93, 101, 103, 142; Hester Dep. pp. 52-53; Fitz Dep. p. 38; 10 N.C.A.C. 14J.0601. Moreover, there is a genuine issue of material fact as to whether any failure by Dr. Ume-si to properly train the nurses in the Jail and to establish written policy, procedures, and specific protocols was a proximate cause of Stockton’s death. Id.

ii. Rule -9(j)

In North Carolina, there are substantive legal requirements that a person must follow to pursue a medical malpractice claim. In North Carolina, a plaintiff asserting negligence must prove the existence of a legal duty or standard of care owed to the plaintiff by the defendant, breach of that duty, a causal relationship between the breach of duty and the plaintiffs alleged injuries, and certain- actual injury or loss sustained by the plaintiff. Camalier v. Jeffries, 340 N.C. 699, 706, 460 S.E.2d 133, 136 (1995); Blackwell v. Hatley, 202 N.C.App. 208, 212, 688 S.E.2d 742, 746 (N.C.Ct.App.2010).

North Carolina Rule of Civil Procedure 9(j) states in relevant part:

Any complaint alleging medical malpractice by a health care provider as defined in [N.C.‘ GemStat. § ] 90-21.11 in failing to comply with the applicable standard of care under [N.C. Gen.Stat. § ] 90-21.12 shall be dismissed unless:

(1) The pleading specifically asserts that the medical care has • been reviewed by a person who is reasonably expected to qualify as an expert witness under Rule 702 of the Rules of Evidence and who is willing to testify that the medical care did not comply with the applicable standard of care;

(2) The pleading specifically asserts that the medical care has been reviewed by a person that the complainant will seek to have qualified as an expert witness by motion under Rule 702(e) of the Rules of Evidence and who is willing to testify that the medical care did not comply with the applicable standard of care, and the motion is filed with the complaint; or

(3)The pleading alleges -facts establishing negligence under the existing common-law doctrine of res ipsa loqui-tur.

N.C. R. Civ. P. 9(j).

Failure to comply with Rule 9(j) is ground for dismissal of a state medical-malpractice claim filed in federal court. See, e.g., Estate of Williams-Moore v. Alliance One Receivables Mgmt. Inc., 335 F.Supp.2d 636, 649 (M.D.N.C.2004); Frazier v. Angel Med. Ctr., 308 F.Supp.2d 671, 676-77 (W.D.N.C.2004); Moore v. Pitt County Mem’l Hosp., 139 F.Supp.2d 712, 713-14 (E.D.N.C.2001); see also Thigpen v. Ngo 355 N.C. 198, 202, 558 S.E.2d 162, 165 (2002). Section 90-21.11 of the North Carolina General Statutes defines a “[mjedical malpractice action” as “[a] civil action for damages for personal injury or death arising out of the furnishing or failure to, furnish professional services in the performance of medical, dental, or other health care provider.” N.C. GemStat. 90-21.11(2)(a).

However, there are claims against health care providers which .do not fit within the statutory definition of medical malpractice. These claims have been found not to involve the “furnishing or failure to furnish professional services” which the North Carolina Court of Appeals has defined as “arising out of a vocation, calling, occupation, or employment involving specialized knowledge, labor, or skill, and the labor [or] skill involved is predominantly mental or intellectual, rather than physical or manual.” See, e.g., Lewis v. Setty, 130 N.C.App. 606, 608, 503 S.E.2d 673, 674 (1998) (removing a patient from a table is not a “professional medical service”); Taylor v. Vencor, Inc., 136 N.C.App, 528, 525 S.E.2d 201 (2000) (failure to supervise a mentally and physically infirm patient while she .-smoked was ordinary negligence). Similarly, many claims against health care providers do not fit within the statutory definition of medical malpractice because they do not arise out of the “performance of medical, dental, or other health care.” These types of claims arise out of policy, management, or administrative decisions and instead are derived from ordinary negligence principles. See, e.g., Estate of Waters v. Jarman, 144 N.C.App. 98, 101-03, 547 S.E.2d 142, 144-45 (2001) (finding claims that a hospital failed to follow policies and to appropriately monitor and oversee employees sounded in ordinary negligence); Allen v. Cty. of Granville, 203 N.C.App. 365, 366-68, 691 S.E.2d 124, 126-27 (2010) (finding that a hospital’s failure to supervise a patient recently treated with seizures was ordinary and not medical negligence).

The court finds that plaintiffs claims against Dr. Umesi sound in ordinary negligence because the claims allege administrative and ministerial failings and do not arise from his personal furnishing or failure to furnish professional services. See, e.g., Waters, 144 N.C.App. at 101-03, 547 S.E.2d at 144-45; Allen, 203 N.C.App. at 366-38, 691 S.E.2d at 126-27.

, iii. Immunity

Dr. Umesi contends that his insurance policy (Medical Protective Company) does not provide coverage for ordinary negligence claims against-him and thus he is shielded by governmental or sovereign immunity. However, where there' is any ambiguity in the terms of an insurance policy the court should adopt the construction most favorable to the insured. Leland v. Federal Ins. Adm’r, 934 F.2d 524, 529 (4th Cir.1991). Moreover, plaintiff points to a second insurance policy with the Evanston Insurance Company. Pl. Resp. Opp’n Umesi Mot. Summ. J., p. 22 & Ex. 2.

The Evanston Insurance Company Policy produced in discovery by counsel for the nursing defendants appears to - cover Dr. Umesi in listing the “Wake County Sheriffs Infirmary” as the named insured and including “[a]ny medical director solely while acting on behalf of the Named Insured and - solely within the scope of his/her Administrative Duties” among-the individuals listed as an insured party. PI. Resp. Opp’n Umesi Mot. Summ. J., Ex. 2 [D.E. 127-2] 9, 14. It is undisputed that Dr. Umesi was the Medical Director of the WCDC. Further, plaintiffs claims have been found to pertain to Dr. Umesi’s administrative duties defined in the Evanston policy , as “establishing medical protocol.” This language illustrates that plaintiff’s claims against Dr. Umesi for ordinary negligence arising out of his administrative duties as Medical Director are proper. Thus, the court declines to award summary judgment on plaintiffs wrongful death claim against Dr. Umesi in his official capacity.

Dr. Umesi further asserts that he is entitled to public officer immunity. Under state law, public officers sued in their individual capacity are entitled to immunity for their conduct unless such conduct was malicious, corrupt, or. outside the scope of their duties. Meyer v. Walls, 347 N.C. 97, 489 S.E.2d 880, 888-89 (1997); see Petersen v. Midgett, No. 2:12-CV-60-D, 140 F.Supp.3d 490, 2015 WL 5684722, at *10 (E.D.N.C. Sept. 25, 2015). The court finds that material issues of fact preclude a determination on summary judgment as to whether Dr. Umesi’s actions and omissions were willful and wanton. See, e.g., Cooper v. Sheehan, 735 F.3d 153, 160 (4th Cir.2013). Thus, the court declines to find that Dr. Umesi is entitled to public officer immunity on the current record.

Lastly as stated above, punitive damages are available where negligence is accompanied by an aggravating factor such as fraud, malice, or willful and wanton conduct. See N.C. Gen.Stat. § 1D-I5(a). For the same reasons set forth above, the court finds that plaintiff has set forth sufficient allegations coupled with supporting evidence to sustain a punitive damages claim as to Dr. Umesi.

III. Motion for Summary Judgment by Nurse Anumudu and Nurse Hester

A. .Count One (42 U.S.C. §§ 1983 and 1988) .

Count one of plaintiffs complaint, which remains only as to Nurse Anumudu, asserts that Anumudu provided constitutionally deficient medical care to Stockton. “To state a claim under [section] 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988); Philips v. Pitt Cty. Mem’l Hosp., 572 F.3d 176, 180 (4th Cir.2009). Additionally, a section 1983 plaintiff must allege the personal involvement of a defendant. See, e.g., Iqbal, 556 U.S. at 676, 129 S.Ct. 1937; Monell, 436 U.S. at 691-92, 98 S.Ct. 2018 (1978); Wright v. Collins, 766 F.2d 841, 850 (4th Cir.1985).

Courts evaluate confinement conditions of pretrial detainees under the due process clause of the Fourteenth Amendment, rather than under the Eighth Amendment. See, e.g., Bell v. Wolfish, 441 U.S. 520, 535 n. 16, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). As a practical matter, the analysis under the due process clause and the analysis under the Eighth Amendment is materially indistinguishable. See, e.g., Riley v. Dorton, 115 F.3d 1159, 1166-67 (4th Cir.1997) (en banc), abrogated on other grounds by Wilkins v. Gaddy, 559 U.S. 34, 130 S.Ct. 1175, 175 L.Ed.2d 995 (2010) (per curiam); Hill v. Nicodemus, 979 F.2d 987, 991-92 (4th Cir.1992).

“Pretrial detainees, like’ inmates under active sentence, are entitled to medical attention, and prison officials violate detainee[s’] rights to due process when they are deliberately indifferent to serious medical needs.” Nicodemus, 979 F.2d at 991 (quotation omitted). To prove such a claim, a plaintiff must demonstrate that the defendant “acted with ‘deliberate indifference’ (subjective) to [his] ‘serious medical needs’ (objective).” Iko v. Shreve, 535 F.3d 225, 241 (4th Cir.2008) (quoting Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976)). Deliberate indifference requires that an official actually know of and disregard an objectively serious condition, medical need, or risk of harm. See id. at 837; Iko, 535 F.3d at 241. Plaintiff must demonstrate that the care provided to Stockton was “so grossly incompetent, inadequate, or excessive as to shock the conscience or to be intolerable to fundamental fairness.” Miltier v. Beorn, 896 F.2d 848, 851 (4th Cir.1990); Hicks v. James, 255 Fed.Appx. 744, 749 (4th Cir.2007) (per curiam) (unpublished). Only when an action meets both the objective and subjective elements will it offend the “evolving standards of decency” in such a way as to violate the constitutional prohibition against “unnecessary and wanton infliction of pain.” Estelle, 429 U.S. at 104-06, 97 S.Ct. 285; Farmer v. Brennan, 511 U.S. 825, 835-836, 511 U.S. 825, 128 L.Ed.2d 811 (1994). Mere negligence or malpractice in diagnosis or treatment does not state a constitutional claim. See Estelle, 429 U.S. at 105-06, 97 S.Ct. 285; Grayson v. Peed, 195 F.3d 692, 695 (4th Cir.1999).

Nurse Anumudu seeks summary judgment for the same reasons she initially moved to dismiss plaintiffs claims against her: first, she contends that plaintiff cannot meet the objective serious medical condition prong; and, second, that plaintiff has not alleged that Nurse Anumudu subjectively acted with deliberate indifference. Turning to the objective prong inquiry, Nurse Anumudu argues that plaintiff has failed to allege the existence of a sufficiently serious medical need when, “[ajcross" the country, it has been determined that a ‘detainee’s generalized state of intoxication, without more, is insufficient to establish a serious medical need[.]’ ” Mem. Supp. Nurses’ Mot. Summ. J., p. 12 (quoting Border v. Trumbull Cty. Bd. of Comm’rs, 414 Fed.Appx. 831 (6th Cir.2011) (unpublished)); see Mem. Supp. Nurses’ Mot. Dism. [D.E. 46] 9. Specifically, defendant Anumudu again relies on the Fourth Circuit’s holding in Grayson, where an intoxicated, belligerent, irrational, and slurring detainee did not establish a sufficiently objective serious medical need. Grayson, 195 F.3d at 694.

The court dénies Nurse Anumudu’s motion for summary judgment on count one for substantially the same reasons that it denied her motion to dismiss. Moreover, although the court previously distinguished the Fourth Circuit’s holding in Grayson based on the procedural posture of that case (a motion for summary judgment), the court concludes that this case remains fully distinguishable from Gray-son.

The facts of Grayson were that upon the officers’ arrival at the scene, the detainee was found to be “acting crazy.” Id. After searching the detainee, the officers discovered a canister containing marijuana and a canister containing a substance believed to be PCP. Id. One of the officers placed the detainee under arrest and transported him to a detention facility. Id. The following morning, after a series of altercations interspersed with periods of calmness, the detainee became unconscious and eventually died. Id. at 694-95.

■ In a subsequent § 1983 action against the arresting officer, the mother of the decedent claimed that the officer’s decision to transport the detainee to the detention facility instead of a hospital constituted deliberate indifference. Id. at 695. The Fourth Circuit held there to be no objective evidence which informed the officer of the detainee’s serious medical need.. Id. As the court explained, “at the time of their encounter, [the detainee] exhibited to [the arresting officer] no visible external injuries. , He did not have trouble breathing. He was not bleeding, was not vomiting or choking, and was not having a seizure. Furthermore, [the detainee] was conscious, at least somewhat responsive, and able to answer questions.” Id. The Court further held that “[the detainee] did not inform [the defendant officer] or any other officer involved of [his] prior medical history. The law cannot demand that officers be mind readers. The medical circumstances that led to [the detainee’s] death did not even -manifest themselves until the following morning, more than ten hours after [the defendant officer] decided to take [the detainee] to the [detention facility] rather than to a hospital.” Id.

Clearly, there are noticeable distinctions between the detainee in Grayson and the decedent in this case. The evidence here is that before the arrest, Stockton appeared, at a minimum intoxicated, which led to his being pulled over. The arresting officer conducted a field alcohol test indicating .00; however, it was clear that Stockton appeared intoxicated on an unknown substance. Stockton explained to the arresting officer as well as numerous others that he had a prescription pill problem that required methadone treatment. Throughout the period of detention lasting at least' 15 hours, Stockton’s behavior became increasingly critical. The complaint states that he was slurring, at some point he forgot his name, he was confused, he was staggering and required help moving from one area to another, he was having difficulty breathing, he sounded like he was choking, he lay in the fetal position, and he sought help, at a minimum, from the-inmates who relayed the request to officers, which included Stockton’s statement that he consumed over 40 pills at the traffic stop.

The inmates -Within the pod also expressed their 'own concerns about the emergency state of his health to the officers on numerous occásions.' Correctional officers likewise sought, but failed to provide, help for Stockton. Lastly, Stockton’s mother informed both medical and detention staff of her son’s serious drug history and need for monitoring- ,

In Grayson, the court found that the decedent’s “symptoms hardly distinguish[ed] him from the multitude of drug and alcohol abusers the police deal with everyday.” Grayson, 195 F.3d at 696. Here, the facts are markedly distinguishable. Stockton was not sleeping off the effects of the intoxicant; rather, his condition was becoming more- critical, pronounced, and dire.' Importantly, this series of events did not happen over a short, compact period of time, it happened over 15 hours while inmates watched and- reported Stockton’s struggle. Furthermore, several officers themselves identified' and sought to render aid; however, when instructed not to intercede, they did not. In stark contravention of the facts in Grayson, no one was required to be a “mind reader” with régard’to Stockton and his situation.

t'fi * * #

Nurse Anumudu next argues that regardless of court’s decision on the objective prong, defendants have failed to meet the subjective prong. Specifically, ...that plaintiff has failed to establish that Nurse Anumudu knew of and disregarded the excessive risk to Stockton. This defendant nurse, however, was told of Stockton’s erratic and confused behavior on several occasions. At 10:00 p.m., she was notified to check on Stockton because of his alarming behavior, .but she did so only through a glass window. At 10:15 p.m., Officer Lowery again informed a nurse, alleged, to be Nurse Anumudu, of Stockton’s heroin use, and requested that Stockton be medically screened. . At this juncture, she told Officer Lowery that Stockton would be placed on the first floor for observation, but he was not moved for observation or further observed. Furthermore, at 11:39 p.m., in her three-minute medical evaluation of Stockton — wherein Stockton had to be escorted to and from the evaluation stumbling and incoherent— Nurse Anumudu was again made aware of his drug addiction, Stockton told her he had been taking methadone, and she noted “Heroin Protocol.” She Was aware of the period of time he had been at the facility. Given his current state of intoxication, by all. accounts, Nurse Anumudu still did not attempt to identify the . source of Stockton’s intoxication. She checked “yes” to the question “have you ever been in a hospital for emotional or mental health problems” and referred Stockton to “psychologist/medical,” but this was not done. Lastly, at 11:42 p.m., having cleared him, Stockton was placed in an overcrowded general cell pod without providing medical or mental health assistance, and without direction for monitoring. Clearly, as outlined in the complaint, all those who came in contact with him, could assume he was intoxicated, that the intoxication was from something other than alcohol, and that the behavior was escalating and becoming more alarming, more exacerbated, and more toxic.

While case law does not' permit the presumption of actual knowledge based upon minor symptoms of intoxication, Thompson v. King, 730 F.3d 742 (8th Cir.2013) (citations omitted), the facts as proffered in the complaint do not outline minor symptoms of intoxication, but high risk' and alarming symptoms of which she should have been aware. The complaint does not fail as to the second prong,

8/19/14 Order, pp. 11-15. The court’s pri- or conclusion is further , supported by the additional evidence now before the court, including deposition testimony, medical records, and other materials.

Anumudu argues, however, that the video compels summary judgment in her favor. The Fourth Circuit has held that “when a video ‘quite clearly contradicts the version of the story told by [the plaintiff] ... so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.’” Witt v. W. Va. State Police, Troop 2, 633 F.3d 272, 276 (4th Cir.2011) (quoting and citing Scott, 550 U.S. at 378, 380, 127 S.Ct. 1769). In so holding, the Fourth Circuit relied on the Supreme Court’s decision in Scott v. Harris, 550 U.S. 372, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007), and concluded that Scott

does not hold that courts should reject a plaintiffs account on summary judgment whenever documentary evidence, such as a . video, offers some support -for a governmental officer’s version of events. Rather, Scott merely holds that when documentary, evidence ‘blatantly contradict^]’ a plaintiffs account ‘so that no reasonable jury could believe it,’ a court should not credit the plaintiffs version on summary judgment.. As such, Scott simply reinforces the unremarkable principle that “[a]t the summary judgment stage, facts,must be viewed in the light most favorable to the nonmoving party” when “there is a ‘genuine’ dispute as to those facts.” Scott, 550 at 380, 127 S.Ct. 1769 (quoting Fed.R.Civ.P. 56(c)) (emphasis added).

Witt, 633 F.3d at 276-77.

The video produced by defendants has no sound, does not provide footage of coverage: of the medical screening,, and does not “clearly contradict[] the version of the story told by [the plaintiff] ... so that no reasonable jury could believe it, [.] [and this] court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.’” Witt, 633 F.3d at 276. There are genuine disputes of material fact precluding summary judgment which include questions, not limited to, the multiple significant discrepancies in key medical records. Among other things, a number of individuals have indicated that Stockton’s state of impairment was readily apparent at the time defendant Anumudu reached a contrary conclusion that while Stockton exhibited no such symptoms of impairment, his condition warranted implementation of the heroin protocol, including administering small doses of Phenergan and Bentyl. Moreover, there appear to be conflicts between Anumudu’s'deposition testimony eonce,m-ing her perception of Stockton’s degree of impairment; her November 5, 2011, medical screening note; and her November. 16, 2011,. statement to Investigating Officer Bell, that when she screened Stockton, she knew that he was, in fact, “under the influence of alcohol, barbiturates, heroin, or any other drug” and that “she could tell by the way he was behaving that he was on something.” Anumudu also told Investigator Bell that Stockton’s “eye were wide open and she could tell that he was on something.” Compare, e.g,, Bell Report, pp. 35-36, 40, 48, 61, 74, 82, 104, 107, 124-27, 131; and Williams Dep., pp. 20-21, 24; with Anumudu Dep., pp. 20, 52-53, 56-57, 66 & Ex. 4. Thus, the court denies Anu-mudu’s motion for summary judgment as count one of the complaint. The court further finds that plaintiff has demonstrated sufficient evidence to show reckless or callous indifference to her federally protected rights in order to sustain a punitive damages claim and declines to dismiss plaintiffs request for punitive damages. See Smith v. Wade, 461 U.S. 30, 56, 103 S.Ct. 1625, 75 L.Ed.2d 632 (1983).

'B. 'Count Four (state-law wrongful death, N.C. Gen.Stat. § 90-211.11 et seq,)

1. ' Public Officer Immunity

Defendants Anumudu and Hester have been sued in their individüal capacity for their alleged negligence resulting in Stockton’s death on November 6, 2011. On this claim, these defendants assert the defense of public officer immunity. Plaintiff contends these two defendants were public employees rather than public officers.

Under state law, public officers sued in their individual capacity are entitled to immunity for their conduct unless such conduct was malicious, corrupt, or outside the scope of their duties. Meyer, 347 N.C. at 112-13, 489 S.E.2d at 888-89: see Petersen, 140 F.Supp.3d at 504, 2015 WL 5684722, at *10. Public employees, on the other hand, áre not entitled to" such immunity and may be held liable in their individual capacities for ordinary negligence. Meyer, 347 N.C. at 113, 489 S.E.2d at 889.

In determining whether" a defendant is a public officer of public employee, North Carolina courts have held that: T) a public office is a position created by the North- Carolina Constitution or by North Carolina Statutes; 2) a public officer exercises a portion of the sovereign power; and 3) a public officer exercises discretion while a public employee performs ministerial duties. See Murray v. Cty. of Person, 191 N.C.App. 575, 579, 664 S.E.2d 58, 61 (2008). “Additionally, an officer is generally required to take an oath of office while a public employee is not required to do so.” Pigott v. City of Wilmington, 50 N.C.App. 401, 273 S.E.2d 752 (1981). In applying these factors, the court finds that defendants Hester and Anumudu were public employees and not public officers.

First, in order for a position to be considered statutorily created, the position itself must be clearly established by statute or the statute must provide for the delegation of duties from a statutorily created position to the position in question. See Fraley v. Griffin, 217 N.C.App. 624, 627, 720 S.E.2d 694, 696 (2011); see also Green v. Kearney, 203 N.C.App. 260, 267-68, 690 S.E.2d 755, 761-62 (2010) (holding that a county medical examiner is a public officer because his position is established by statute with delegated duties set forth by statute in N.C. GemStat. § 130A-382). In North Carolina, the sheriff has a statutory duty to maintain “the care and custody of the jail” and “shall be, or appoint, the keeper” of the jail. N.C. Gen.Stat. § 162-22. Additionally, the sheriff may appoint “a deputy or employ others to assist him in performing his official duties.” Id. However, there is no statute that creates the position of jail nurse, nor is there a statute which defines the role of a jail nurse. Cf. Simmons v. Corizon Health, Inc., 122 F.Supp.3d 255, 263 (2015), on reconsideration in part on other grounds, 2015 WL 5837541 (M.D.N.C. Oct. 6, 2015). In fact, this court previously dismissed plaintiffs claim, pursuant to N.C. GemStat. § 162-22, that Nurse Anumudu was a keeper of the jail and statutorily charged with and were exercising the sovereign'power of the Sheriff to provide for the care, custody, and maintenance of prisoners. 8/19/14 Order, pp. 15-16. Thus, the court concludes that the first factor indicates that Anumu-du and Hester are public employees.

The second factor to be considered in determining whether an individual is á public officer or a public employee is whether such individual exercises a portion of the sovereign power. Again, as discussed above, there is no statute or provision which indicates the nursing defendants were exercising a portion of the sovereign power. Cf. Baker v. Smith, 224 N.C.App. 423, 428-29, 737 S.E.2d 144, 14849 (2012) (position of assistant jailer is created by N.C. Gen.Stat. §§ 162-22 and - 24); 8/19/14 Order, pp. 15-16 (dismissing plaintiffs claim that a nurse is statutory keeper of the jail and exercises the sovereign power of the Sheriff to provide for the care, custody, and maintenance of prisoners).

The third factor in this analysis is that a public officer generally exercises discretion, while a public employee performs ministerial duties. The North Carolina Supreme Court has defined discretionary acts as “those requiring personal deliberation, decision and judgment” and has defined ministerial duties as “absolute” and involving “merely [the] execution of a specific duty arising from fixed and designated facts.” Isenhour v. Hutto, 350 N.C. 601, 610, 517 S.E.2d 121, 127 (1999). The North Carolina Court of Appeals has held that “the mere use of judgment, by itself, is not enough to elevate an employee’s ministerial duties to discretionary acts. There is some inherent use of judgment involved in virtually every position of employment.” See Fraley, 217 N.C.App. at 627, 720 S.E.2d at 697 (holding that emergency medical technician was a public employee, not a public officer); see also Mullis v. Sechrest, 126 N.C.App. 91, 484 S.E.2d 423 (1997), rev’d on other grounds, 347 N.C. 548, 495 S.E.2d 721 (1998) (holding that a public school teacher, while performing the significant and important job of teaching and educating the youth of North Carolina, does not usually exercise the sovereign power and is, therefore,'a public employee); Schmidt v. Breeden, 134 N.C.App. 248, 517 S.E.2d 171 (1999) (holding that staff members at an elementary after-school enrichment program were public employees not entitled to public officer immunity).

The nursing defendants argue that the Plan only provides guidelines and protocols that are not required to be followed. However, section .4704, entitled Policies and Procedures, describes its objective as “[t]o provide written guidelines for nursing practice, for communication, and implementation of the policie