# Lane v. Straughn

> District Court, E.D. Arkansas · October 13, 2021

URL: https://www.frixlaw.com/law-library/cases/10006062

## Case

- **Court:** District Court, E.D. Arkansas
- **Decided:** October 13, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10006062

## How later opinions describe it (automated extraction)

- noting plaintiffs duty to meet proof with proof in affirming summary judgment in defendant’s favor

## Opinion text

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
CENTRAL DIVISION

ADAM LANE, PLAINTIFF
ADC #155843

v. 4:20CV01067-BRW-JTK

WILLIAM STRAUGHN, et al. DEFENDANTS
PROPOSED FINDINGS AND RECOMMENDATIONS
INSTRUCTIONS
The following recommended disposition has been sent to United States District Billy Roy
Wilson. Any party may serve and file written objections to this recommendation. Objections
should be specific and should include the factual or legal basis for the objection. If the objection
is to a factual finding, specifically identify that finding and the evidence that supports your
objection. An original and one copy of your objections must be received in the office of the
United States District Court Clerk no later than fourteen (14) days from the date of the findings
and recommendations. The copy will be furnished to the opposing party. Failure to file timely
objections may result in waiver of the right to appeal questions of fact.
If you are objecting to the recommendation and desire to submit new, different, or
additional evidence, and to have a hearing for this purpose before the District Judge, you must, at
the same time that you file your written objections, include the following:
1. Why the record made before the Magistrate Judge is inadequate.
2. Why the evidence proffered at the hearing before the District Judge (if such a

hearing is granted) was not offered at the hearing before the Magistrate Judge.

3. The detail of any testimony desired to be introduced at the hearing before the

District Judge in the form of an offer of proof, and a copy, or the original, of any documentary or
other non-testimonial evidence desired to be introduced at the hearing before the District Judge.

From this submission, the District Judge will determine the necessity for an additional
evidentiary hearing, either before the Magistrate Judge or before the District Judge.
Mail your objections and AStatement of Necessity@ to:
Clerk, United States District Court
Eastern District of Arkansas
600 West Capitol Avenue, Suite A149
Little Rock, AR 72201-3325

DISPOSITION
I. Introduction
Plaintiff Adam Lane (“Plaintiff’) is incarcerated at the East Arkansas Regional Unit of the
Arkansas Division of Correction (“ADC”). Plaintiff sued Arkansas Division of Correction Dexter
Payne, William Straughn, Wardens Jackson, Gaylon Lay, and Emmer Branch, Captains Barden
and Randle, Health Service Administrator Gregory Rechcigl, and Doctors Tracy Bennett and Gary
Kerstein, in their personal and official capacities. (Doc. No. 2 at 1-4). Plaintiff’s claims against
Defendants Payne, Jackson, Lane, Barden, Randle, and Rechcigl have been dismissed, as have
Plaintiff’s Covid-19-related and syphilis-related medical claims. (Doc. Nos. 8, 16, 44, 45).
Plaintiff’s corrective inaction claims against Defendants Straughn, Lay, and Branch (collectively,
the “ADC Defendants”) remain pending, as do Plaintiff’s deliberate indifference to medical needs
claims against Defendants Bennett and Kerstein (collectively, the “Medical Defendants”).
The ADC Defendants have filed a Motion for Summary Judgment, Brief in Support, and
Statement of Facts on the merits of Plaintiff’s claims. (Doc. Nos. 54-56, 61). The Medical
Defendants also have filed a Motion for Summary Judgment, Brief in Support, and Statement of
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Facts on the merits. (Doc. Nos. 57-60). Plaintiff has filed one response, which the Court construes
as a Response to both Motions. (Doc. No. 60).
II. Plaintiff’s Complaint
In his Complaint, Plaintiff explains that on March 26, 2020 he filed a sick call for “swollen

lymph glands, constant migraines, loss of vision, dizzy spells, and tremendous pain and suffering.”
(Doc. No. 2 at 6). That same day, Plaintiff spoke to Defendant Bennett, who noted
“lymphadenopathy along left posterior cervical chain but nothing was done.” (Id.). Plaintiff
said he suspected he was suffering from syphilis or Covid-19, but “was denied medical treatment
and [was] escorted back to [his] cell.” (Id. at 6-7). Plaintiff was seen by Defendant Bennett
again on April 6, 202. (Id. at 7). Defendant Bennett prescribed Plaintiff Tylenol for Plaintiff’s
pain, but only told Plaintiff to “go to sleep” when he again told her he thought he was suffering
from syphilis or Covid-19. (Id.). When Plaintiff filed another sick call, he was referred to
Defendant Kerstein (Id.). Plaintiff again complained that he believed he was suffering from
syphilis or Covid-19. (Doc. No. 2 at 7). Defendant Kerstein explained to Plaintiff that his

symptoms likely were related to a problem with Plaintiff’s tooth; Plaintiff disagreed. (Id.)
Defendant Kerstein then purportedly became angry and terminated Plaintiff’s visit. (Id.)
Plaintiff filed grievances regarding his medical treatment and corrective inaction as to Covid-19
protocol, and attached grievances to his Complaint. (Id. at 7-9, 11-38). Plaintiff tested Covid-
19 positive on June 11, 2020. (Id. at 8). Plaintiff seeks compensatory damages and injunctive
relief. (Id. at 10).

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III. Summary Judgment Standard
Pursuant to FED. R. CIV. P. 56(a), summary judgment is appropriate if the record shows
that there is no genuine issue of material fact and the moving party is entitled to judgment as a
matter of law. See Dulany v. Carnahan, 132 F.3d 1234, 1237 (8th Cir. 1997). “The moving party

bears the initial burden of identifying ‘those portions of the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, which it believes
demonstrate the absence of a genuine issue of material fact.’” Webb v. Lawrence County, 144
F.3d 1131, 1134 (8th Cir. 1998) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (other
citations omitted)). “Once the moving party has met this burden, the non-moving party cannot
simply rest on mere denials or allegations in the pleadings; rather, the non-movant ‘must set forth
specific facts showing that there is a genuine issue for trial.’” Id. at 1135. Although the facts are
viewed in a light most favorable to the non-moving party, Ain order to defeat a motion for summary
judgment, the non-movant cannot simply create a factual dispute; rather, there must be a genuine
dispute over those facts that could actually affect the outcome of the lawsuit.@ Id.

In addition, “[a]ll material facts set forth in the statement (of undisputed material facts)
filed by the moving party...shall be deemed admitted unless controverted by the statement filed by
the non-moving party . . . .” Local Rule 56.1, Rules of the United States District Court for the
Eastern and Western Districts of Arkansas. Failure to properly support or address the moving
party=s assertion of fact can result in the fact considered as undisputed for purposes of the motion.
FED. R. CIV. P. 56(e).

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IV. Analysis
Plaintiff filed a Response to the ADC Defendants’ Motion and Medical Defendants’
Motion. (Doc. No. 60). But in his Response Plaintiff did not controvert any material fact set
forth by Defendants’ in their statements of undisputed material facts. (Doc. Nos. 56, 59, 60).

Plaintiff only generally objects to Defendants’ Motions, stating “the record reflects multiple
constitutional violations, deliberate indifference, lack of professionalism and a disregard for the
health and welfare of inmates (Plaintiff) in the [ADC],” and similar general argument. (Doc. No.
60). Because Plaintiff did not controvert any material fact submitted, all material facts submitted
by Defendants (Doc. Nos. 56, 59) are deemed admitted. Local Rule 56.1(c); FED. R. CIV. P. 56(e).
A. The Medical Defendants Motion
Defendant Kerstein is a physician at the East Arkansas Regional Unit. (Doc. No. 59 at ¶
2). Defendant Bennett is an Advanced Practice Registered Nurse employed as a Mid-Level
Practioner/Provider at the same Unit. (Id. at ¶ 3.) In support of their Motion, the Medical
Defendants submitted certain of Plaintiff’s medical records. Plaintiff has not contested the

records.
The records reflect that on March 26, 2020, Defendant Bennet saw Plaintiff in the Health
Services office for a chronic care visit in connection with Plaintiff’s asthma. (Doc. No. 59-1 at
2-3, 23-24). The encounter notes reflect Plaintiff complained of “recent head cold with clear
runny nose, frontal headaches, scratchy throat, and neck pain . . . possibly some fever and malaise.”
(Id. at 23.) Plaintiff denied coughing and reported a long history of asthma. (Id.) Defendant
Bennett noted
hearing grossly intact; ear canals patent w/o edema or erythema; left TM with clear
effusion and bulging; right TM with good cone of lint; TMS with no erythema or
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edema bilaterally. Nares-patent but with edematous and erythematous bilaterally.
Throat: normal mucosa, palate, and posterior pharynx without exudates, erythema,
or edema. Lymphadenopathy noted along left posterior cervical chain.

(Id. at 23-24). Defendant Bennett scheduled a follow-up visit in two weeks to evaluate
lymphadenopathy. (Id. at 24). Plaintiff did not complain of dental problems during his March
26, 2020 visit with Defendant Bennett. (See Id. at 23-24; Doc. No. 59-2 at 1-2).
On March 31, 2020, Plaintiff submitted a health service request form in which he described
his problem as an “infection in [his] tooth, causing pain – n – swollen in [his] jaw – n – neck with
migraines.” (Doc. No. 59-1 at 4). On April 2, 2020, Plaintiff saw a non-party provider about an
“infection in [his] tooth.” (Id. at 22).
On April 6, Plaintiff saw a different non-party provider complaining that he needed “a
physical having frequent mygrane, fever, upset stomach, loss of appetite, vomiting, [which] has
been going on for 2 week also swollen [lymph nodes], ear infection.” (Doc. No. 59-1 at 21).
The records further reflect that Plaintiff refused his April 9, 2020 follow up visit with
Defendant Bennett in the health services office. (Id. at 6, 20-21). Defendant Bennett did see
Plaintiff again on the afternoon of April 9, 2020, but she visited his cell. During that visit Plaintiff
“reported flu like symptoms; he refused follow up visit today; guard staff escorted this provider to
cell. Pt report[s] headache for the past several days and swollen lymph nodes for 1 month.” (Id.
at 20). Defendant Bennett observed Plaintiff’s hearing was grossly intact, he had no nasal
drainage, his throat presented with “normal mucosa, palate, and posterior pharynx without
exudates.” (Id.). Defendant Bennett also noted lymphadenopathy. (Id.). She was not aware
at the time of Plaintiff’s dental issues. (Doc. No. 59-2 at 2-3). She ordered x-rays, lab work, and
a follow up in one week, among other observations. (Doc. No. 59-1 at 7, 20-21). A basic

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metabolic panel and CBC with differential/platelet were run; there was no clinical need for follow
up. (Id. at 11-12). Plaintiff also had a nonvascular ultrasound of the left neck which revealed
“[p]ossible pathology enlarged lymph node in the left neck. Further correlation with postcontrast
CT scan of the neck advised for further characterization.” (Id. 14). Based on this finding,

Defendant Bennett scheduled a follow up appointment for Plaintiff within five working days. (Id.
at 7).
Plaintiff then saw Defendant Kerstein in a telemedicine appointment on April 20, 2021.
(Id. at 15-16, 19). Plaintiff noted “migraines on and off last 2 years. Bad tooth left lower jaw
which he things may be causing current head aches and swollen lymph nodes.” (Id. at 19).
Defendant Kerstein also noted that Plaintiff “believes he needs a tooth pulled on lower left side.”
(Doc. No. 59-1 at 19). Defendant Kerstein prescribed antibiotics and ibuprofen, and a follow up
appointment and a dental evaluation. (Id.).
On April 22, 2020, Plaintiff saw another non-party provider, a dentist. (Doc. No. 59-1 at
18-19). The exam revealed Plaintiff had an abscessed tooth and extraction was recommended.

(Doc. No. 59-1 at 18).
On April 27, 2020—roughly a week after Plaintiff began taking antibiotics—Plaintiff saw
a non-party provider for a sick call. (Id. at 17-18). Plaintiff complained that his “lymph nodes
[have] been hurting for 2 months or more and they [are] swollen . . . [have] been having migraines
for 2 months or more.” (Id. at 17). Plaintiff insisted he had an STD that was not treated properly
in the past. (Id.). The provider noted “negative lymphadenopathy, no thyroidmegaly, lymph
nodes not palpable, no rigidity, no swelling, good ROM.” (Id. at 18).

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Also in support of the Medical Defendants’ Motion, they submitted the declaration of
Joseph Hughes, M.D., who was asked to provide his opinion as to whether Defendants Bennett
and Kerstein failed to provide Plaintiff proper medical treatment in connection with his lymph
nodes. (Doc. No. 59 at ¶ 4; Doc. No. 59-3). Dr. Hughes explained that the care Plaintiff received

was appropriate, and why. (Doc. No. 59-3). Of particular note, Plaintiff’s abscessed tooth was
located in the area of his swollen lymph nodes, and after a week of antibiotics, Plaintiff’s
lymphadenopathy had resolved. (Id.) Dr. Hughes opined that Plaintiff “received excellent care
all around.” (Doc. No. 59-3 at 3).
Plaintiff maintains the record reflects that he did not receive appropriate care. Based on
the evidence, the Court cannot agree. Plaintiff’s medical complaints were promptly addressed.
He underwent testing, saw various providers, and received dental care. Plaintiff may have
preferred a different course of medical action. But as the Court of Appeals for the Eighth Circuit
has explained, “mere disagreement with treatment decisions . . . does not rise to the level of a
constitutional violation.” Cejvanovic v. Ludwick, 923 F.3d 503, 507-08 (8th Cir. 2019). As

such, summary judgment in the Medical Defendants’ favor is appropriate.
B. The ADC Defendants Motion
Plaintiff alleged the ADC Defendants failed to take corrective action in connection with
Covid-19 at the Unit and Plaintiff’s medical care. Because the Court found no underlying
violation as to the medical care Plaintiff received (and Plaintiff’s Covid-related medical claims
already have been dismissed), Plaintiff’s corrective inaction claim on this issue fails. Choate v.
Lockhart, 7 F.3d 1370, 1376 (8th Cir. 1993) (defendant “cannot be liable for ‘corrective inaction’
where there were no constitutional violations to correct”).

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As to Plaintiff’s remaining claims, Defendants argue they are entitled to qualified
immunity. (Doc. No. 55 at 4). Qualified immunity may shield a government official from
liability when his or her conduct does not violate “clearly established statutory or constitutional
rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800,

818 (1982). Qualified immunity is a question of law, not a question of fact. McClendon v.
Story County Sheriff's Office, 403 F.3d 510, 515 (8th Cir. 2005). Thus, issues concerning
qualified immunity are appropriately resolved on summary judgment. See Mitchell v. Forsyth,
472 U.S. 511, 526 (1985) (the privilege is “an immunity from suit rather than a mere defense to
liability; and like an absolute immunity, it is effectively lost if a case is erroneously permitted to
go to trial.”).
To determine whether defendants are entitled to qualified immunity, the courts generally
consider two questions: (1) whether the facts alleged or shown, construed in the light most
favorable to the plaintiff, establish a violation of a constitutional or statutory right; and (2) whether
that right was so clearly established that a reasonable official would have known that his or her
actions were unlawful. Pearson v. Callahan, 555 U.S. 223, 232 (2009).1 Defendants are entitled

to qualified immunity only if no reasonable fact finder could answer both questions in the
affirmative. Nelson v. Correctional Medical Services, 583 F.3d 522, 528 (8th Cir. 2009).
Plaintiff alleged corrective inaction in connection with Covid-19 protocol. The record
reflects that Defendant Straughn implemented multiple Covid-19 policies for the safety of staff

1 Courts are “permitted to exercise their sound discretion in deciding which of the two
prongs of the qualified immunity analysis should be addressed first in light of the circumstances
in the particular case at hand.” Nelson, 583 F.3d at 528 (quoting Pearson v. Callahan, 555 U.S. at
236).
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and inmates, and has personally seen the implemented policies in action—including at the East
Arkansas Regional Unit where Plaintiff was housed. (Doc. No. 56 at ¶¶ 10-19; Doc. No. 54-1 at
¶¶ 4-15, 18). Defendant Straughn has “not received any correspondence from [Plaintiff]
regarding Covid-19 . . . other than [Plaintiff’s] grievance.” (Doc. No. 54-1 at ¶ 16). Defendant

Straughn denied Plaintiff’s appeal of Grievance EA-20-00544 on June 17, 2020. (Doc. No. 61-
2). The Grievance complains of the medical care Plaintiff received, but does not mention Covid,
Covid protocol, or violation of Covid protocol. (Id.)
Defendant Straughn also denied the appeal of Plaintiff’s Grievance EA-20-00631. (Doc.
No. 61-3). In Grievance EA-20-00631, Plaintiff complained about Covid-19 and the Covid-19
protocol, but Plaintiff does not allege any particular individual was violating protocol or violating
Plaintiff’s rights.
Defendant Straughn denied Plaintiff’s appeal of Grievance EA-20-01318, too. (Doc. No.
61-4). Plaintiff alleges in this Grievance that there is insufficient ventilation in ISO-2, that it is
extremely hot and hard to breath, which puts inmates at risk for Covid-19 exposure. (Id.)

Plaintiff says he informed “Warden Jackson, Major Randle . . . Warden Lay, Dycus, n Branch to
Dexter Payne and William Straughn to this day nobody has done anything to correct this situation.”
(Id.) Even if the conditions were found to violate Plaintiff’s rights, the Defendants are not liable
without a finding that reasonable correction officers would have recognized the ventilation
constituted an unlawful condition. See Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (internal
quotation omitted). The law, as it existed at the time of the events giving rise to this lawsuit,
“must have placed the statutory or constitutional question beyond debate.” Dillard v. O’Kelly, 961
F.3d 1048, 1052 (8th Cir. 2020) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)).

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Plaintiff’s Grievance EA-20-01318 was received on June 8, 2020. (Doc. No. 61-4 at 1).
By that time Warden Straughn already implemented policies to address Covid-19 at the EARU.
(Doc. No. 54-1 at ¶ 7). These policies included: visitor and staff screening for Covid-19
symptoms; recommending hand washing; use of face masks; avoidance of non-essential physical

contact and sharing of personal items; and maintaining distance from others, among others. (Id.
at ¶¶ 8-12). The Court notes that the hand-washing poster placed in the Unit was from the Centers
for Disease Control and Prevention. (Id. at pp. 7-8).
Plaintiff did not allege in Grievance EA-20-01318 that he was housed with inmates known
to be Covid-19 positive. He did not allege in Grievance EA-20-01318 that EARU staff were
disregarding the policies Defendant Straughn implemented. Further, the June 7, 2020 response
to Grievance EA-20-01318 reflects that “the vents [have] been removed from isolation. This
should address your concern.” (Doc. No. 61-4 at 4, 9). Some action was taken in response to
Plaintiff’s complaints. Plaintiff did test Covid-19 positive while in isolation. (Id. at 4). But at
the time Plaintiff raised his concerns, there was no clearly-established right as to prison ventilation

and Covid-19 protocol. Accordingly, Defendant Straughn is entitled to qualified immunity.
This same analysis holds true for Defendants Lay and Branch. (Doc. Nos. 54-2, 54-3). Even if
there was a violation, there was no clearly established right. As such, the Court finds Defendants
Lay and Branch also are entitled to qualified immunity and recommend the ADC Defendants’
Motion for Summary Judgment be granted.
As a closing note, Court again acknowledges Plaintiff’s general objection to both pending
Motions for Summary Judgment (Doc. Nos. 54, 57, 60). But at this stage, Plaintiff was required
to meet proof with proof. To survive summary judgment, Plaintiff’s allegations had to be

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supported by evidence creating a genuine issue of material fact. Wilson v. Miller, 821 F.3d 963,
970 (8th Cir. 2016) (allegations must be substantiated with sufficient probative evidence);
Bolderson v. City of Wentzville, Missouri, 840 F.3d 982, 986-87 (8th Cir. 2016) (noting plaintiffs
duty to meet proof with proof in affirming summary judgment in defendant’s favor). Plaintiff,
however, failed to contest Defendants’ undisputed material facts (Doc. Nos. 56, 59) and otherwise
has not come forward with evidence supporting his claims.
V. Conclusion
IT IS, THEREFORE, RECOMMENDED that
1. The Motion for Summary Judgment filed by Defendants Bennett and Kerstein
(Doc. No. 57) be GRANTED;
2. The Motion for Summary Judgment filed by Defendants Branch, Lay, and Straughn
(Doc. No. 54) be GRANTED; and
3. Plaintiff's Complaint (Doc. No. 2) be DISMISSED with prejudice.
IT IS SORECOMMENDED this 13 day of October, 2021.

JEROMET.KEARNEY
UNITED STATES MAGISTRATE JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10006062. Public record. Not legal advice.