Rasheed Olds v. United States , 473 F. App'x 183 ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-6683
RASHEED OLDS,
Plaintiff - Appellant,
v.
UNITED STATES OF AMERICA,
Defendant - Appellee.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Dever III,
District Judge. (5:08-ct-03120-D)
Submitted: September 7, 2011 Decided: April 5, 2012
Before WILKINSON and GREGORY, Circuit Judges, and HAMILTON,
Senior Circuit Judge.
Affirmed in part, reversed in part, and remanded by unpublished
per curiam opinion.
Rasheed Olds, Appellant Pro Se. Thomas G. Walker, United States
Attorney, Joshua B. Royster, Assistant United States Attorney,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Rasheed Olds, a federal inmate, appeals the district
court’s order granting summary judgment to the Government on his
claims of negligence pursuant to the Federal Tort Claims Act
(“FTCA”), 28 U.S.C. § 1346(b) (2006). We affirm in part and
reverse and remand in part.
We review a district court’s order granting summary
judgment de novo, viewing the facts and drawing reasonable
inferences therefrom in the light most favorable to the non-
moving party. Bonds v. Leavitt, 629 F.3d 369, 380 (4th Cir.
2011). Summary judgment may be granted only when “there is no
genuine issue as to any material fact and the movant is entitled
to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). “[T]here is
no issue for trial unless there is sufficient evidence favoring
the nonmoving party for a jury to return a verdict for that
party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249
(1986). For a non-moving party to present a genuine issue of
material fact, “[c]onclusory or speculative allegations do not
suffice, nor does a mere scintilla of evidence in support of
[the non-moving party’s] case.” Thompson v. Potomac Elec. Power
Co., 312 F.3d 645, 649 (4th Cir. 2002) (internal quotation marks
omitted).
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Under the FTCA, the substantive law of the place where
the act or omission occurred is to be applied. Cibula v. United
States, 551 F.3d 316, 319 (4th Cir. 2009) (citing 28 U.S.C.
§ 1346(b)(1)). Here, that is North Carolina. North Carolina law
requires that “in order to prevail in a negligence action, [a
plaintiff] must offer evidence of the essential elements of
negligence: duty, breach of duty, proximate cause, and
damages.” Camalier v. Jeffries, 460 S.E.2d 133, 136 (N.C.
1995).
We conclude that the district court erred by finding
that Olds’s injuries alleged in count one of his complaint could
not have been proximately caused by the prison staff leaving him
handcuffed and unattended in his cell. Proximate cause is:
a cause which in natural and continuous sequence,
unbroken by any new and independent cause, produced
the plaintiff’s injuries, and without which the
injuries would not have occurred, and one from which a
person of ordinary prudence could have reasonably
foreseen that such a result, or consequences of a
generally injurious nature, was probable under all the
facts as they existed.
Adams v. Mills, 322 S.E.2d 164, 172 (N.C. 1984) (internal
quotation marks omitted). While foreseeability is “a requisite
of proximate cause,” foreseeability of the “precise form” of the
resulting injury is not. Hairston v. Alexander Tank & Equip.
Co., 311 S.E.2d 559, 565 (N.C. 1984); see also Adams, 322 S.E.2d
at 172. “All that a plaintiff is required to prove on the
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question of foreseeability, in determining proximate cause, is
that in the exercise of reasonable care, the defendant might
have foreseen that some injury would result from his act or
omission, or that consequences of a generally injurious nature
might have been expected.” Hairston, 311 S.E.2d at 565
(internal quotation marks omitted).
On this record, we conclude that it was premature for
the district court to find proximate cause lacking at the
summary judgment stage. “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 or not.” Adams, 322 S.E.2d at 172;
see also Lamm v. Bissette Realty, Inc., 395 S.E.2d 112, 116
(N.C. 1990) (“The issues of proximate cause and contributory
negligence are usually questions for the jury.”). Here, more
than one inference could be drawn as to the proximate cause of
Olds’s injury. The district court therefore erred in resolving
this issue at the summary judgment stage. We reverse as to this
issue.
Olds failed to assert error in the district court’s
finding that his count two claims are barred for failure to
comply with N.C. R. Civ. P. 9(j) in his opening brief to this
court. In doing so, he waived any argument against the district
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court’s finding. Equal Rights Ctr. v. Niles Bolton Assocs., 602
F.3d 597, 604 n.4 (4th Cir. 2010); United States v. Jones, 308
F.3d 425, 427 n.1 (4th Cir. 2002). We therefore affirm the
district court’s grant of summary judgment on this count.
Accordingly, we affirm in part, reverse in part, and
remand for further proceedings. We dispense with oral argument
because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the
decisional process.
AFFIRMED IN PART,
REVERSED IN PART,
AND REMANDED
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