Floreal-Wooten v. Helder

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

FAYETTEVILLE DIVISION

EDRICK FLOREAL-WOOTEN;

JEREMIAH LITTLE;

JULIO GONZALES;

DAYMAN BLACKBURN;

and THOMAS FRITCH PLAINTIFFS

V. CASE NO. 5:22-CV-5011

TIM HELDER, former Sheriff

of Washington County, Arkansas,

in his individual capacity;

KARAS CORRECTIONAL HEALTH, P.L.L.C.;

and DR. ROBERT KARAS, M.D.,

in his individual capacity DEFENDANTS

MEMORANDUM OPINION AND ORDER

Now before the Court are Defendants’ Motion for Judgment on the Pleadings (Doc.

40) and Brief in Support (Doc. 41), Plaintiffs’ Response in Opposition (Doc. 42), and

Defendants’ Reply (Doc. 43). For the reasons stated below, the Motion is DENIED.

I. BACKGROUND

The events described in the Amended Complaint began in late 2020, during the

COVID-19 pandemic. At that time, the Washington County Detention Center (“WCDC”)

was headed by Sheriff Tim Helder, and the inmates of the WCDC received all their health

care services exclusively from Karas Correctional Health, P.L.L.C. (“KCH”), which is

solely owned and managed by Dr. Robert Karas.

The Amended Complaint claims that Dr. Karas became interested in developing

possible treatments for the novel COVID-19 virus. He began conducting his own research

and hypothesized that the drug ivermectin could be an effective treatment for COVID-19.

Ivermectin is FDA-approved to address parasitic infestations, such as intestinal worms

and headlice, and some skin conditions, such as rosacea. It is not—and was not at the

time—approved to treat COVID-19. Dr. Karas, however, prescribed ivermectin to two

sets of test subjects. The first set was composed of people who sought out Dr. Karas’s

services at his private medical clinic and agreed to take ivermectin as part of an

experimental treatment for COVID-19. The second set was composed of inmates,

including Plaintiffs, who were incarcerated at the WCDC. The inmates received Dr.

Karas’s treatment protocol for COVID-19 but did not know it included ivermectin. Dr.

Karas and his staff falsely told the inmates the treatment “consisted of mere ‘vitamins,’

‘antibiotics,’ and/or ‘steroids.’”1 (Doc. 34, ¶ 32). Critically, the inmates had no idea they

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were part of Dr. Karas’s experiment.

Ivermectin is known to cause a number of side-effects, including nausea, vomiting,

diarrhea, hypotension (low blood pressure), allergic reactions (itching and hives),

dizziness, ataxia (problems with balance), seizures, coma, and even death. Id. at ¶ 31 &

n.7. Since Plaintiffs were not advised that their COVID “treatments” contained ivermectin,

they were never warned about the drug’s side effects. In addition, Dr. Karas hypothesized

that large doses of ivermectin would be most effective in combatting COVID-19. The

problem, however, was that the FDA had only approved a dosage of 0.2 mg/kg to treat

worms. Dr. Karas ultimately prescribed lower doses of ivermectin to his clinic patients

and higher doses to his imprisoned patients.

At first reading, it would seem highly unlikely—even implausible—that a doctor

would have dosed his incarcerated patients with an experimental drug more aggressively

than his private patients—but Plaintiffs point to proof in their jail medical records. Thomas

1 No party contends that ivermectin falls into one of these categories.

Fritch, for example, was dosed without his knowledge with 2.75 times the amount of

ivermectin required to treat a parasitic infestation, id. at ¶ 27; Edrick Floreal-Wooten was

secretly dosed with 3.4 times the approved dosage of ivermectin, id. at ¶ 25; and Dayman

Blackburn was dosed with 6.3 times the approved dosage, id. at ¶ 26. Again, these

Plaintiffs were suffering from COVID-19, not parasites.

Plaintiffs explain that after they ingested the COVID-19 “treatments” prescribed by

Dr. Karas, they suffered side-effects consistent with ivermectin overuse. Since they did

not know they had ingested ivermectin, their symptoms were a mystery to them. Plaintiff

Fritch, whose medical condition was particularly vulnerable due to the fact that he is HIV

positive, claims he “experienced dizziness, nausea, vomiting, pain, and weakness” after

taking Dr. Karas’s COVID-19 treatment “cocktail.” Id. at ¶¶ 22 & 34. He complained

about these symptoms but was assured they were “normal.” Id. at ¶ 35. The other

Plaintiffs claim they “experienced vision issues, diarrhea, bloody stools, and/or stomach

cramps” after ingesting ivermectin without their knowledge. Id. at ¶ 34.

Dr. Karas documented his ivermectin experiments on social media. Id. at ¶ 20. He

admitted on his clinic’s Facebook page that the voluntary participants in his “clinic

regimen” received lower doses of ivermectin as compared to his unwitting “jail patients.”

Id. at ¶ 28 n.6. Eventually, the experiments gained notoriety and became the subject of

both local and national news. Id. at ¶ 38. According to Plaintiffs, it was only then that

“Defendants attempted to obtain ‘retroactive’ consents to medical treatment from

detainees, including for the use of Ivermectin.” Id. Once Plaintiffs discovered they had

been the subjects of a medical experiment, they “experienced mental distress, anger, and

a lingering mistrust of Defendants and medical professional[s] generally.” Id. at ¶ 36.

Plaintiffs accuse Dr. Karas and KCH of violating their substantive due process

rights under the Fourteenth Amendment by denying them voluntary and informed consent

to medical treatment.2 In addition, they charge Dr. Karas and KCH with the tort of battery.

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As for separate Defendant Sheriff Helder, Plaintiffs claim he violated their due process

rights because he “knew or should have known as early as July 2021 about the ongoing

practice and policy at WCDC of administering an unproven and unapproved alleged

treatment for COVID-19 on detainees in his care.” Id. at ¶ 57. To support the due process

claim against Sheriff Helder, Plaintiffs cite to the multiple public postings Dr. Karas made

about his prisoner experiments on social media and argue it is reasonable to assume at

this early stage in the litigation that Sheriff Helder knew or should have known that Dr.

Karas was administering high dosages of an unproven, experimental drug to incarcerated

inmates, without their knowledge, as a “treatment” for COVID-19. Plaintiffs further

contend that “[u]pon being informed of the dangers of administering Ivermectin to

detainees at WCDC, Sherrif [sic] Helder still refused to put a stop to the practice.” Id. at

¶ 58.

Defendants filed an Answer to the Amended Complaint in which they admit that

Dr. Karas and KCH contracted with Washington County to provide medical care to the

inmates of the WCDC and that Dr. Karas used ivermectin to treat inmates who contracted

COVID-19. (Doc. 37, ¶¶ 1–3). However, Defendants deny liability and maintain that Dr.

2 In particular, the Court construes the Amended Complaint to assert an individual-

capacity claim against Dr. Karas, the alleged architect of the treatment protocol for

combatting COVID-19 in the WCDC and Plaintiffs’ treating physician. Separate Defendant

KCH is Dr. Karas’s business that contracted with the WCDC to provide Dr. Karas’s

medical services to the jail’s inmates. According to the Eighth Circuit in Sanders v. Sears,

Roebuck & Co., 984 F.2d 972, 975–76 (8th Cir. 1993), “[A] corporation acting under color

of state law will only be held liable under § 1983 for its own unconstitutional policies.”

Karas’s experimental treatment protocol, including the means and methods by which he

carried out that protocol, was “lawful and appropriate” and did not “violate[] any person’s

rights.” Id. at ¶ 4.

Two months after filing their Answer, Defendants collectively filed a Motion for

Judgment on the Pleadings (Doc. 40) and Brief in Support (Doc. 41). As to Plaintiffs’

substantive due process claims, Defendants’ first argument is that the right to informed

consent and bodily autonomy is only impacted when the state engages in “forced medical

procedures.” (Doc. 41, p. 7). Defendants note that, here, “[t]here is no allegation . . . that

Plaintiffs were forced to take Ivermectin or any other medicine for COVID-19,” so it should

follow that they have failed to state a due process claim. Id. at pp. 7–8 (emphasis added).

Second, Defendants contend that Plaintiffs’ lawsuit amounts to nothing more than a

“disagreement” with Dr. Karas’s treatment decision, and that such disagreement, at most,

constitutes a claim for medical negligence, which is not actionable under 42 U.S.C.

§ 1983.3 Third, Defendants maintain that Dr. Karas’s experimental methods neither

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3 Defendants maintain that Dr. Karas sincerely believed ivermectin was a promising and

possibly effective treatment for COVID-19 and that he never intended to harm Plaintiffs.

He remains convinced, even today, that there is “a difference of opinion between

physicians regarding the efficacy of Ivermectin’s use as an anti-viral or anti-inflammatory

(or an agent to save the lives of persons infected with COVID-19).” (Doc. 41, p. 5).

Plaintiffs, on the other hand, contend that Dr. Karas’s hypothesis about ivermectin as a

treatment for COVID-19 has been overwhelmingly disproven. The FDA, the Centers for

Disease Control and Prevention (“CDC”), and other members of the scientific community

have all concluded that ivermectin is not an effective treatment for COVID-19 and have

advised the public against using it. (Doc. 34, p. 2, n.2; ¶ 42).

There is no need for the Court to consider here whether there is, in fact, a legitimate

difference of opinion in the medical community about the efficacy of ivermectin. For

purposes of analyzing the Motion for Judgment on the Pleadings, the Court need only

consider whether Plaintiffs have stated a plausible claim for the violation of their

constitutional rights. Their claim is not that Dr. Karas committed malpractice by deviating

from the accepted standard of medical care. Their claim instead is that Defendants

“shock the conscience” nor violate “any fundamental right which is deeply rooted in this

Nation’s history and tradition.” Id. at p. 3. Fourth, Defendants point out that Sheriff Helder

cannot be individually liable for violating Plaintiffs’ constitutional rights because he did not

personally give any Plaintiff medication and because “non-medical governmental actors,

such as Sheriff Helder, are entitled to rely on medical staff as to the treatment an inmate

has received.” Id. at p. 13. Similarly, Defendants argue that the Amended Complaint

never explicitly alleges that Dr. Karas handed pills of ivermectin to any Plaintiff, which

should mean they have all failed to state an individual-capacity claim against him.4

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Finally, Defendants assert that even if the Court finds a constitutional claim has been

adequately stated, the doctrine of qualified immunity protects Dr. Karas and Sheriff Helder

from suit.

As for the state-law battery claim, Dr. Karas and KCH argue that the Amended

Complaint “do[es] not allege anyone in particularly [sic] and certainly no Defendant here

harmfully or offensively touched them.” (Doc. 41, p. 3). They assert that without facts

showing forcible touching, the tort must be dismissed. Next, KCH maintains that only

human beings may be sued for battery (and not hospitals, doctor’s offices, or other

medical businesses). Finally, both Dr. Karas and KCH urge the Court to find them

statutorily immune from suit. They accuse the state’s highest court of “misreading . . . the

violated their due process rights by concealing from them both the fact that they were part

of an experimental drug treatment protocol and the identity of the drug being tested in

that protocol, including information about the drug’s possible negative side effects.

4 This is a surprising argument in view of Defendants’ admission that “Dr. Karas and his

clinic, Karas Correctional Health, PLLC, provide certain medical care for inmates in the

WCDC” and that “Karas Correctional Health has utilized Ivermectin to treat inmates who

have contracted COVID-19.” (Doc. 37, ¶¶ 1 & 4).

plain language of the immunity statute” and suggest that immunity should apply to

intentional torts such as battery—despite Arkansas Supreme Court authority to the

contrary. Id. at p. 15.

II. LEGAL STANDARD

Motions for judgment on the pleadings under Rule 12(c) are governed by the same

legal standard that applies to motions to dismiss under Rule 12(b)(6). See Westcott v.

City of Omaha, 901 F.2d 1486, 1488 (8th Cir. 1990). To survive a motion to dismiss, a

complaint must provide “a short and plain statement of the claim that [the plaintiff] is

entitled to relief.” Fed. R. Civ. P. 8(a)(2). The purpose of this requirement is to “give the

defendant fair notice of what the . . . claim is and the grounds upon which it rests.”

Erickson v. Pardus, 551 U.S. 89, 93 (2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.

544, 555 (2007)). The Court must accept all factual allegations in a complaint as true and

construe them in the light most favorable to the plaintiff, drawing all reasonable inferences

in the plaintiffs’ favor. See Ashley Cnty. v. Pfizer, Inc., 552 F.3d 659, 665 (8th Cir. 2009).

III. DISCUSSION

A. Substantive Due Process Claims

A substantive due process claim may be stated in two ways. First, a plaintiff may

allege that the government has infringed his fundamental liberty interests. This claim is

generally limited to protecting recognized liberty interests in “matters relating to marriage,

family, procreation, and the right of bodily integrity.” Albright v. Oliver, 510 U.S. 266, 272

(1994). Second, the Supreme Court has recognized substantive due process claims when

government actions “shock the conscience.” See Cnty. of Sacramento v. Lewis, 523 U.S.

833, 846–53 (1998); Mendoza v. U.S. ICE, 849 F.3d 408, 420–21 (8th Cir. 2017); Moran

v. Clarke, 296 F.3d 638, 645, 647 (8th Cir. 2002). For the reasons explained below, the

Court finds that Plaintiffs state a claim under either theory.

The Supreme Court has clearly established that “a competent person has a

constitutionally protected liberty interest in refusing unwanted medical treatment.” Cruzan

v. Dir., Mo. Dep’t of Health, 497 U.S. 261, 278 (1990). With respect to prisoners in an

institutional setting, the Supreme Court’s view is there is “no doubt” that they “possess[]

a significant liberty interest in avoiding the unwanted administration of . . . drugs under

the Due Process Clause of the Fourteenth Amendment.” Washington v. Harper, 494 U.S.

210, 221–22 (1990).

Defendants’ lead argument is that this liberty interest is only compromised “when

forced medical procedures are visited upon persons,” (Doc. 41, p. 7) (emphasis in

original). They contend that because Plaintiffs voluntarily swallowed the pills they were

given in the WCDC to treat COVID-19, they were not “forced” to take ivermectin. This

argument is absurd. Plaintiffs did not know they were taking ivermectin, so they did not

have the option to refuse it or have it “forced” upon them.5 Though the plaintiff in

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Washington v. Harper suffered from a mental illness, he was at least aware that he was

taking antipsychotic drugs, and when at some point he refused to take them, his doctor

recommended medicating him without his consent. 494 U.S. at 221–22. Plaintiffs in this

5 In fact, Plaintiffs allege that Dr. Karas and his staff intentionally failed to disclose that

they were dispensing ivermectin by falsely telling the inmates that the pills “consisted of

mere ‘vitamins,’ ‘antibiotics,’ and/or ‘steroids.’” (Doc. 34, ¶¶ 29-33).

case allege they knew less about their medication than the mentally ill inmate did in

Washington.6

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Defendants urge the Court to follow the reasoning in Wright v. Fred Hutchinson

Cancer Research Center, 269 F. Supp. 2d 1286, 1295 (W.D. Wash. 2002), a case they

describe as “similar” to this one, see Doc. 41, p. 8. However, the facts in Wright are

inapposite to those in the case at bar. The Wright plaintiffs voluntarily participated in an

experimental, therapeutic treatment regimen but were not informed of all the risks,

benefits, and alternatives to that treatment. See 269 F. Supp. 2d at 1295. After the

plaintiffs passed away, their decedents brought suit, arguing that the defendants had

“failed to disclose certain important facts regarding the protocol and their own pecuniary

interests in the outcome of the experiments.” Id. The court found no constitutional

violation had occurred, in large part because the plaintiffs and their decedents “knew they

were participating in an experiment.” Id. In contrast to Wright, Plaintiffs contend they did

not know they were taking ivermectin and did not know they were participating in an

experiment to test the drug’s efficacy on COVID-19. Dr. Karas has admitted he was giving

Plaintiffs and other inmates at the WCDC ivermectin to “treat” COVID-19 as part of a

protocol of his own devise. He maintains there was nothing wrong with that. See Doc.

37, ¶ 4.

6 The Court also notes that in Washington, the Court held that the Due Process Clause

may permit the forced medication of an inmate if the treatment was “reasonably related

to legitimate penological interests,” 494 U.S. at 223, for example, if the inmate was

“dangerous to himself and others and the treatment was in the inmate’s medical interest,”

id. at 227. Though COVID-19 was a novel, deadly virus in early 2020, the Court does not

construe Defendants’ Motion as arguing that a legitimate penological interest justified

administering ivermectin to COVID-19-positive inmates without their knowledge and

consent.

Perhaps Defendants missed the following passage from Wright, which is

applicable to the facts alleged here:

The judiciary has not hesitated to find that, where the human research

subjects were not told that they were participating in an experiment and/or

the government conducted the experiments knowing they had no

therapeutic value, the subject’s constitutionally protected right to life and/or

liberty had been violated.

Id. at 1294.

This Court agrees with the above statement in Wright and finds that Plaintiffs have

plausibly asserted that Defendants infringed their recognized liberty interest in bodily

integrity. Separately, the Court finds that the facts in the Amended Complaint, if true,

shock the conscience. Plaintiffs have stated a plausible due process claim against Dr.

Karas, who allegedly ordered that they take ivermectin to “treat” COVID-19 and

prescribed them high dosages of the drug without their knowledge as part of an

experimental protocol. Plaintiffs have also stated a plausible due process claim against

KCH, a corporation acting under color of state law that adopted an unconstitutional policy

of medicating COVID-19-positive inmates with high dosages of ivermectin without their

knowledge.

Turning to Sheriff Helder, the Court finds it plausible, based on the facts in the

Amended Complaint, that he knew or should have known that Dr. Karas was performing

ivermectin experiments on Plaintiffs without their knowledge and that he approved,

condoned, or turned a blind eye to this violation of Plaintiffs’ due process rights. The

Amended Complaint describes how Dr. Karas disclosed the details of his COVID protocol

on his clinic’s social media pages. This fact tends to elevate Plaintiffs’ claim about Sheriff

Helder’s knowledge from the realm of speculation to the realm of plausibility. Although

Sheriff Helder leans on the fact that he is not a medical professional and should not be

required to substitute his medical judgment for Dr. Karas’s or be liable for Dr. Karas’s

malpractice, this defense misses the mark. Plaintiffs are not accusing Dr. Karas of

garden-variety medical malpractice; they are accusing him of administering them a drug

without their knowledge as part of a jail-wide experimental treatment protocol for COVID-

19. If discovery shows that Sheriff Helder was completely ignorant about what Dr. Karas

was doing, the claim against Sheriff Helder will likely merit dismissal on summary

judgment. However, at this stage of the proceedings, dismissal is inappropriate, as there

are facts alleged to show Sheriff Helder knew something about Dr. Karas’s experiments.

Clearly, the extent of that knowledge will be key to determining Sheriff Helder’s individual-

capacity liability in this case.

Finally, the Court must consider whether Dr. Karas or Sheriff Helder is entitled to

qualified immunity.7 In their Motion, Defendants “acknowledge the Eighth Circuit recently

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found that third-party medical providers in some circumstances were not allowed to raise

qualified immunity as a defense, despite finding that such actors are engaged in state

action or acting under color of law for purposes of Section 1983.” (Doc. 41, p. 13)

(emphasis in original). The case Defendants are referring to is Davis v. Buchanan

County, Missouri, 11 F.4th 604, 617–23 (8th Cir. 2021), where the Eighth Circuit

acknowledged that qualified immunity could be available to an individual physician who

was “performing a limited and discrete task for the state,” but was not available to

“employees of systematically organized private firms” that were “tasked with assuming

[the] major lengthy administrative task” of providing all medical care to inmates of a

7 KCH does not assert its own right to qualified immunity.

correctional facility. Id. at 619. According to the Amended Complaint, Dr. Karas, by and

through KCH, has provided all health care services to several hundred inmates at a time

at the WCDC “for many years” at a cost to Washington County of $1,374,000 per year.

See Doc. 34, ¶ 10. KCH won its contract with Washington County after beating out other

medical care providers in a formal bidding contest. Id. Therefore, the Court finds that Dr.

Karas’s role as “employee of a large firm systematically organized to perform a major

administrative task for profit” weighs against allowing him to assert qualified immunity.

See Davis, 11 F.4th at 622.8

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In the alternative, if Dr. Karas were deemed eligible to assert this defense, he

would not be entitled to its protections under these facts and pursuant to clearly

established law. A public official is entitled to qualified immunity unless his conduct

violated a constitutional right and that right was clearly established. Williams v. Mannis,

889 F.3d 926, 931 (8th Cir. 2018) (citations omitted). A right is “clearly established” when

“[t]he contours of the right [are] sufficiently clear that a reasonable official would

understand that what he is doing violates that right.” Id. (alterations in original) (citations

omitted).

Earlier in this Opinion, the Court found that Plaintiffs asserted plausible claims

against Dr. Karas and Sheriff Helder for violating their substantive due process rights.

The Court also finds that a reasonable doctor or sheriff would have understood, given the

Supreme Court precedent in Cruzan v. Director, Missouri Department of Health, 497 U.S.

8 In making this finding, the Court rejects Dr. Karas’s argument that the emergent nature

of the COVID-19 pandemic should alter the qualified-immunity eligibility analysis. There

is no authority for that proposition. Further, the Court rejects Defendants’ self-serving

claim that KCH is only “a doctor of a small clinic and his staff.” (Doc. 43, p. 13). This

characterization is directly contrary to the facts in the pleadings.

261, 278 (1990), and Washington v. Harper, 494 U.S. 210, 221–22 (1990), that it was

clearly established in fall 2020 that administering an experimental drug to prisoners

without their knowledge would violate their due process rights. Qualified immunity is

therefore denied. This is not a close call.

B. Battery Claim Against Dr. Karas and KCH

Plaintiffs separately bring a battery claim against Dr. Karas and KCH under

Arkansas law. In response, Dr. Karas and KCH contend there must be direct physical

contact between a defendant and a plaintiff in order for a claim of medical battery to be

stated. Defendants cite no law for this proposition, and the Court is not persuaded that

Defendants are correct. See 1 Howard Brill, Arkansas Law of Damages § 33:6, Assault

and battery (Nov. 2021) (“Liability for a battery does not hinge on any part of an actor’s

body contacting the other person’s body. Therefore an action can be subject to liability

for battery by causing an indirect offensive or harmful contact.”).

Arkansas law generally views a physician’s duty to disclose medical information to

a patient in terms of medical negligence or malpractice. See Ark. Code Ann. § 16-114-

206(a) (“In any action for medical injury, when the asserted negligence . . . .”) (emphasis

added); (b)(1) (“when the plaintiff claims that a medical care provider failed to supply

adequate information to obtain the informed consent of the injured person . . . .”)

(emphasis added). It is not often that a patient plausibly accuses a physician of

intentionally concealing the details of a treatment protocol in order to induce the patient

to take a particular drug for the physician’s own professional and private aims. Such facts

are unusual and would likely involve some form of deception or coercion on the

physician’s part. Plaintiffs suggest that a scheme like this would only work if, as here, the

patients were a captive audience and relied on other people to hand them their

medication.

After due consideration, the Court finds that the facts here state a plausible claim

for medical battery based on affirmative concealment and intentional—rather than

negligent—failure to obtain informed consent. The Court is persuaded the Arkansas

Supreme Court would acknowledge such a claim. See Arthur v. Zearley, 320 Ark. 273,

283 & 285 (1995) (acknowledging plaintiffs’ intentional tort claims in a medical malpractice

action arising from a lack of informed consent); Parkerson v. Arthur, 83 Ark. App. 240,

250 (2003) (same).

As for Dr. Karas and KCH’s final argument that, as state actors, they are statutorily

immune from suit under Arkansas Code § 21-9-301, the Court disagrees. This statute

only affords immunity to counties, their agents, and their employees for negligence. The

tort at issue here, battery, does not fall into a gray area where, depending on the facts, it

could sometimes be an intentional tort and sometimes a negligence tort. Battery is only

an intentional tort—a fact that Defendants do not even attempt to dispute.

In the case of Trammell v. Wright, the Arkansas Supreme Court observed that it

“has consistently held that section 21-9-301 provides city [and county] employees with

immunity from civil liability for negligent acts, but not for intentional acts.” 489 S.W.3d 636,

639 (2016) (citing Deitsch v. Tillery, 833 S.W.2d 760 (1992)). Trammel’s interpretation of

§ 21-9-301 is binding on this Court. Nevertheless, Defendants boldly ask that this settled

question of statutory interpretation be certified to the Arkansas Supreme Court—perhaps

in the hope that the high court will jump on the opportunity to reverse itself. The request

for certification is improper. Arkansas Supreme Court Rule 6-8 permits federal courts to

certify questions of law when there is no controlling precedent or when “substantive law

is unclear on an issue.” Longview Prod. Co. v. Dubberly, 352 Ark. 207, 209 (2003). There

is no straight-faced argument that there are any grounds for certification on the subject of

intentional tort immunity. Defendants’ briefing on the matter is tiresome and frivolous.

See Doc. 41, pp. 14-19.

IV. CONCLUSION

IT IS THEREFORE ORDERED that Defendants’ Motion for Judgment on the

Pleadings (Doc. 40) is DENIED.

IT IS SO ORDERED on this 16" day of March, 2023.

UNITED STATES DISTRICT JUDGE

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