                            UNPUBLISHED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Affirmed in part, reversed in part, and remanded by unpublished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Unpublished opinions are not binding precedent in this circuit.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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