The opinion
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
CENTRAL DIVISION
DONALD S. ANDREWS, JR. PLAINTIFF
V. Case No. 4:24-CV-00455-JM-BBM
WELL PATH, et al. DEFENDANTS
RECOMMENDED DISPOSITION
The following Recommended Disposition (“Recommendation”) has been sent to
United States District Judge James M. Moody Jr. You may file written objections to all or
part of this Recommendation. If you do so, those objections must (1) specifically explain
the factual and/or legal basis for your objection; and (2) be received by the Clerk of this
Court within fourteen (14) days of the date of this Recommendation. If you do not file
objections, Judge Moody may adopt this Recommendation without independently
reviewing all of the evidence in the record. By not objecting, you may waive the right to
appeal questions of fact.
I. INTRODUCTION
On May 23, 2024, Plaintiff Donald S. Andrews, Jr. (“Andrews”), filed a pro se
Complaint pursuant to 42 U.S.C. § 1983 while he was an inmate incarcerated in the
Tucker Unit of the Arkansas Division of Correction (“ADC”).1 (Doc 2). Andrews alleges
that he received inadequate medical care while in prison, which resulted in permanent
neurological damage. Id. at 5–18. Before Andrews may proceed with this action, the
1 On June 4, 2024, Andrews filed a Notice of Change of Address and provided the Court with a
residential address. (Doc. 3).
Court must screen his claims in accordance with the Prison Litigation Reform Act
(“PLRA”).2 28 U.S.C. § 1915A(a).
II. ALLEGATIONS
Andrews sues the following Defendants in both their personal and official
capacities: Rory Griffith (“Griffith), Warden Faust (“Faust), Warden DeAngelo Earl
(“Earl”), Ramsey, Dr. Daniels, Dr. Vol, Dr. Foster, Dr. Beck, Dr. Smith, Dr. Lemon,
Cowell, Jason M. Kelley (“Jason Kelley”), Sheila Armstrong (“Armstrong”), Pierce,
McCoy, Smarjessee, and Delaney. (Doc. 2 at 19–21). Andrews sues the remaining
Defendants in their official capacities only: Well Path, Corrective Care Solutions, Wendy
Kelley, Dexter Payne (“Payne”), Warden Musselwhite (“Musselwhite”), Warden Moses
Jackson (“Jackson”), Warden Page (“Page”), and Warden Hurst (“Hurst”). Id. at 19–20.
According to Andrews, he was sentenced to incarceration in the ADC on April 13,
2017. (Doc. 2 at 5). On April 20, 2017, Andrews was seen by non-Defendant Dr. Roberto
Saez, who performed a physical examination and reviewed Andrews’s medical records.
Id. Dr. Saez then sent an urgent request to the ADC from the Benton County Detention
Center where Andrews was being held. Id. Dr. Saez requested that Andrews either be
transferred to state custody for medical treatment or that Dr. Saez be allowed “to get
2 The PLRA requires federal courts to screen prisoner complaints seeking relief against a
governmental entity, officer, or employee. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or
a portion thereof if the prisoner has raised claims that: (a) are legally frivolous or malicious; (b) fail to
state a claim upon which relief may be granted; or (c) seek monetary relief from a defendant who is
immune from such relief. Id. § 1915A(b). When making this determination, the Court must accept the
truth of the factual allegations contained in the complaint, and it may consider the documents attached to
the complaint. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Reynolds v. Dormire, 636 F.3d 976, 979 (8th
Cir. 2011).
surgery performed…due to the serious nature and risk of permanent injury to
[Andrews’s] neurological condition.” Id. The ADC deferred a decision. Id.
On May 20, 2017, Dr. Saez made a second request to the ADC due to Andrews’s
worsening condition. (Doc. 2 at 5). Dr. Saez’s requests were based on additional
examinations, which showed acute atrophy from reports created by non-Defendant Dr.
George Dimmel, an orthopedic surgeon. Id. Dr. Saez requested that Andrews have
surgery immediately, but ADC once again deferred a decision. Id.
On June 10, 2017, Andrews wrote to Wendy Kelley, Director of the ADC. (Doc. 2
at 6). Andrews begged to be transferred due to his medical needs, which included
“excruciating pain, no medical help, and hostile conditions.” Id. On August 24, 2017,
Andrews arrived for diagnostics at the ADC’s Ouachita River Unit, the main unit/hospital
for the ADC. Id. He received medical and psychological evaluations, which would
determine his unit assignment. Id.
On August 28, 2017, the medical, dental, and psychological process began,
although the medical staff had no record of Andrews’s medical needs. (Doc. 2 at 6). The
only note made by a staff nurse indicated that Andrews “had foot drop” and was on high
doses of Gabapentin. Id. Andrews was told to inform his parent unit about his medical
conditions and was given a bottom bunk only script. Id.
On August 30, 2017, Andrews was transferred to ADC’s Grimes Unit. (Doc. 2 at
6). All of his medications were stopped, and he was in excruciating pain. Id. On
September 5, 2017, he submitted a medical request and an emergency grievance for
medical attention. Id.
On September 6, 2017, Andrews was interviewed by a nurse, and he told the nurse
about his numerous medical problems. (Doc. 2 at 6). The nurse referred him to the
provider, non-Defendant nurse Simmons. Id. at 6–7. On September 10, 2017, Simmons
examined Andrews and found that he suffered from severe atrophy in his right calf
muscle, foot drop of the right foot, numerous scars, broken bones, and surgeries. Id. at 7.
Andrews had severe neuropathy in his right leg and foot. Id. He was issued a cane and
scripts that limited his work and activity, including no stairs and bottom floor only, and
he was given mild drugs. Id. Andrews signed medical releases, which would later show a
spiral fracture. Id.
On October 1, 2017, the Grimes Unit received medical records from non-
Defendants Dr. Dimmel and Dr. Norman Tubb. (Doc. 2 at 7). Simmons then decided to
order footwear and have Andrews seen by a neurologist orthopedic doctor. Id. On
October 15, 2017, Andrews was examined by non-Defendant Dr. Stephen Shafizadah at
St. Vincent’s Orthopedic Clinic. Id. Dr. Shafizadah’s examination revealed that Andrews
had at least three compression fractures, severe spinal stenosis, and various other major
neurological and spinal disorders that required immediate surgery before they became
irreversible, “if it wasn’t already too late.” Id.
In late January or early February of 2018, Andrews was scheduled for surgery and
transported to St. Vincent’s Hospital “after a lengthy wait for approval by ADC.” (Doc. 2
at 8). Andrews claims that, due to “the complexity of the surgery and the general
deterioration of [his] condition since so much time had been allowed to pass and let the
condition worsen…[Andrews] died twice during the extensive surgery[.]” Id.
In February 2018, Andrews was transferred to the Ouachita River Unit, where he
would be housed during his period of recovery based on the long-term special needs that
he would require, such as physical therapy and hospitalization. (Doc. 2 at 8). In late
February or early March 2018, Andrews was taken back to the clinic at St. Vincent’s to
have the staples from the incision removed and for a checkup of his spine. Id. Dr.
Shafizadah ordered Andrews to undergo daily treatment on a spine stimulator, which had
to be approved. Id. When it was approved, Andrews was back at Ouachita River Unit
with a new spine stimulator that was kept locked in the day clinic where he would use it.
Id.
On March 18 or 19, 2018, Andrews was using the bathroom. (Doc. 2 at 8). The
lights were dim; the bathroom was flooded; and Andrews slipped and fell on the
bathroom floor. (Doc. 2 at 8). He was in agonizing pain. Id. Andrews had x-rays taken
and was told that it was just a little arthritis and nothing to worry about. Id. at 8–9.
Andrews was given a shot of pain medication and returned to the barracks in a
wheelchair. Id. at 9.
The next day, Andrews awoke in excruciating pain. (Doc. 2 at 9). He told the pill
call nurse that something was wrong with his back, and it was more than arthritis. Id.
Andrews put in sick calls and grievances, but nothing was done. Id. Over the next two
months, Andrews filed grievances about medication and pain. Id. His medication was
decreased, and he was charged for medical services. Id.
On June 20, 2018, Andrews was taken back to Dr. Shafizadah, who told Andrews
that he had broken his back when he fell. (Doc. 2 at 9). That day, Andrews wrote a letter
to Wendy Kelly, Rory Griffith, the ADC Medical Director, and Warden Faust. Id. He
included copies of requests and grievances where he had asked staff to correct the
medical problems that he was having at the Ouachita River Unit, such as not receiving
help or treatment. Id. Andrews informed the staff of his fall, the flooded floor, filthy
conditions, and medical neglect and maltreatment. Id.
On June 29, 2018, Andrews received a letter from non-Defendant Jada Lawrence,
Executive Assistant to the ADC Director, acknowledging receipt of Andrews’s
correspondence and stating that they forwarded a copy to Griffith. (Doc. 2 at 10).
However, nothing was done about the issues that Andrews brought to their attention. Id.
Andrews filed numerous grievances about his extreme back pain and asked for
time with the spinal stimulator. (Doc. 2 at 10). When Andrews was told that it was his
responsibility to show up for treatment, he told staff that he could not let himself out of
housing or unlock the day clinic’s door on the weekends. Id. Andrews claims that the
staff showed animosity towards him and retaliated against him. Id.
On July 11, 2018, Andrews filed a grievance concerning his use of the spinal
stimulator. (Doc. 2 at 10). He argued that the day clinic was not open on weekends;
therefore, he did not have access to the spinal stimulator on weekends, and “treatment
call is not called out regularly” due to fights, suicides, drug overdoses, and staff
shortages. Id. He claims that administration and Pierce blamed Andrews. Id.
On July 23, 2018, Andrews was losing control of his bowel movements, losing
feeling in his lower extremities, and losing the ability to walk. (Doc. 2 at 10–11). Delaney
told Andrews that he could not file an emergency grievance. Id. at 10. Delaney changed
the grievance from an emergency grievance to an informal resolution after Andrews
repeatedly tried to request help through medical requests, sick calls, and the officer in
charge of his barracks. Id. at 11.
On August 1, 2018, non-Defendant Dr. Vowel reviewed Andrews’s medication
list and determined that twice daily hydrocodone was sufficient. (Doc. 2 at 11). Andrews
asked if there was anything other than hydrocodone because it contained Tylenol, which
is not good for his liver because he has Hepatitis C. Id. Out of retaliation, Dr. Vowel
stopped all hydrocodone and did not replace it with any substituted pain reliever. Id. Dr.
Vowel deliberately left Andrews in pain. Id.
On August 18, 2018, Andrews saw Smarjessee, Physician Assistant, and was told
that his pain medication would be restored. (Doc. 2 at 11). However, because Andrews
had been writing grievances, nothing was done to help him with pain or to treat any
issues with his back or with the stimulator. Id.
On September 5, 2018, Andrews wrote a grievance about Pierce and Smarjessee,
and non-Defendant Dr. Vowel, for failing to provide medical help. (Doc. 2 at 11). He
requested to see the neurosurgeon or orthopedic doctor. Id.
On October 1, 2018, Andrews was again examined by Dr. Shafizadah, who
concluded that Andrews’s foot drop and the paralysis in his right foot and calf were
permanent. (Doc. 2 at 12). For over a year, medical staff had been given multiple doctors’
opinions, records, and pleas to help Andrews, but the delays in treatment resulted in
permanent neurological damage. Id.
On October 5, 2018, Andrews and Dr. Daniels discussed treatment and medication
options. (Doc. 2 at 12). Andrews was placed on twice daily hydrocodone for pain and a
series of muscle relaxers. Id. He was told that they would look into “options of cement in
spine,” and, until then, the spinal stimulation would continue. Id. Andrews was not given
any pain medication. Id.
On November 1, 2018, Andrews went to the day clinic for a spinal treatment with
the stimulator. (Doc. 2 at 12). When he received the stimulator from Pierce, it was
inoperable because the belt was broken. Id. From November 2, 2018, through November
26, 2018, Andrews made numerous requests to have the belt fixed because the stimulator
was all that was being done to try to heal his back. Id. Andrews was told to go back to the
barracks without treatment for three weeks. Id. On November 27, 2018, Andrews filed a
grievance about the broken stimulator and claimed that his back was broken and medical
staff was not doing anything about his back or to fix the stimulator. Id. at 13.
On January 31, 2019, Jason Kelly and Dr. Daniel called Andrews to the day clinic.
(Doc. 2 at 13). They explained the company that manufactured the stimulator suggested
Andrews no longer use the belt. Id. Jason Kelly told Andrews he was unsure how to write
this up and asked Andrews what would work. Id. Andrews said he just wanted his back
fixed and to be pain free. Id. Jason Kelly and Dr. Daniel told Andrews that they would
sign the waiver and get him fixed. Id. Within five minutes of signing the waiver,
Andrews was prescribed hydrocodone, Gabapentin, and other drugs. Id. A few days later,
appointments were made at the Pain and Spine Clinic at the University of Arkansas for
Medical Sciences (“UAMS”). Id. “[R]ecords requests to include appointments were made
within minutes” of Andrews signing the waiver. Id.
On April 1, 2019, Andrews was sent to UAMS and saw non-Defendant Dr.
Howard. (Doc. 2 at 14). Dr. Howard told Andrews that a vertebra was crushing into the
vertebra below it, and there were bone fractures. Id. Dr. Howard planned to have an MRI
done and to do a procedure that could possibly prevent further crushing of Andrews’s
vertebra, help with the pain, and fix many of Andrews’s major back problems. Id.
Andrews was also told that he had osteoarthritis and osteoporosis. Id. Dr. Howard
recommended medications, requested an MRI, and asked that Andrews return to the Pain
and Spine Clinic in a timely manner. Id.
On October 10, 2019, Andrews was taken back to the Pain and Spine Clinic after
having an MRI at the hospital in early June 2019. (Doc. 2 at 14). The transportation
officers arrived at the clinic with another inmate’s medical records inside Andrews’s
medical file. Id. The doctor stated that, even though all the medical information did not
belong to Andrews, it did not matter because too much time had passed since Andrews’s
last visit. Id. The doctor said that “Medical” was supposed to have Andrews back
quickly, not six months later. Id. He stated that the procedure could no longer be
performed, and the only available option was medication and spinal injections. Id.
Andrews’s hydrocodone dosage was increased to three times a day, and he would be
scheduled for spinal injections. Id. at 15.
That day, Andrews wrote a grievance about the six-month delay in bringing him
back to the Pain and Spine Clinic, which hindered the possibility of the medical
procedure. (Doc. 2 at 15). He also complained that the transportation officers brought the
wrong medical records to his appointment. Id. The next day, Earl, Warden at Ouachita
River Unit, retaliated against Andrews and had him transferred immediately to ADC’s
Grimes Unit. Id.
On October 11, 2019, Andrews arrived at the Grimes Unit with medications that
were packed by a nurse at the Ouachita River Unit in front of Andrews, given to transport
officers, and delivered to Grimes Unit staff. (Doc. 2 at 15). At the first pill call at the
Grimes Unit, the computer showed all the medications had arrived, except the nurses
could not find Andrews’ pain medication, the hydrocodone. Id. Nurses said that the
hydrocodone must not have been received. Id.
The next day, Andrews asked about his pain medication. (Doc. 2 at 15). For a
week, the nurses told Andrews, “you will not get that here[.]”. Id. On October 19, 2019, a
female doctor was called into the prison and wrote a prescription for hydrocodone after
reviewing Andrews’s medical records. Id.
On November 18, 2019, Andrews’s hydrocodone ran out and was supposed to
have been re-ordered two or three days earlier, but the medication had not been sent.
(Doc. 2 at 16). Andrews filed a grievance. Id. He was called to the infirmary and told he
would not get any more hydrocodone. Id. Andrews claims that numerous professionals
prescribed hydrocodone, it had been approved along with the spinal injections, and then
an unidentified nurse stopped it against the specialists’ orders. Id.
On November 20, 2019, Andrews was taken to UAMS for more spinal injections.
(Doc. 2 at 16). The clinic wanted to know why he had been taken off hydrocodone. Id.
Andrews had no answer, and the spinal injections were beneficial. Id. On December 6,
2019, Andrews was again taken to UAMS for spinal injections. Id. They proceeded with
successful spinal injections. Id.
On an unspecified date, Andrews submitted a sick call due to some swelling and
pain from injections and chronic back pain. (Doc. 2 at 16). He was charged for the
medical visit in retaliation for filing a grievance. Id. Andrews has been repeatedly
charged for medical visits for chronic conditions since filing a grievance. Id.
On an unspecified date, Ramsey, a Grimes Unit classification officer, retaliated
against Andrews by consistently placing him in a class 4 barracks.3 (Doc. 2 at 17).
Andrews asserts that placing him in a class 4 barracks with inmates who cause more
trouble than inmates in a class 1, 2, or 3 barracks put him at a substantial risk of harm
from problematic inmates. Id. Andrews requested to be placed in a smaller barracks with
older inmates or inmates with disabilities. Id. He was concerned that being placed in a
larger barracks with more inmates placed him at a greater risk of contracting COVID-19
and an increased risk to his safety. Id.
On April 5, 2020, Dr. Foster evaluated Andrews’s back and decided to change the
course of treatment. (Doc. 2 at 17). Dr. Foster “discounted” an orthopedic pain
management specialist with spinal injections and nerve fusions, and he said that pain was
good. Id. Dr. Lemon, a physical therapist, stated that physical therapy was complete, and
now it was up to a pain management and specialists at UAMS. Id. Dr. Foster prescribed
3 Andrews attached to his Complaint an inmate request form, dated March 16, 2020, wherein he
requests to be housed in a class 1 barracks. (Doc. 2 at 62). Although he does not provide the date that
Ramsey allegedly placed him in a class 4 barracks, it appears to have occurred prior to March 16, 2020.
high doses of calcium and vitamin D3 to help with Andrews’s osteoarthritis and
osteoporosis. Id.
“Two years later,” on an unspecified date, Andrews had an infected tooth. (Doc. 2
at 17). A dentist at the Grimes Unit reviewed his medical history and asked what type of
cancer Andrews was being treated for. Id. Andrews told the dentist that he was not aware
of any cancer, and the dentist said that “alendronate sodium calcium scrum” is used to
treat cancer. Id. at 17–18. The dentist prescribed an antibiotic and other medications for
six weeks, then extracted the tooth, and prescribed antibiotics and other medications for
another four weeks to prevent osteonecrosis of the jawbone. Id. at 18.
On an unspecified date, Andrews’s orthopedic shoes, leg brace, back belts, and
walker with wheels were all taken away as a form of retaliation. (Doc. 2 at 18). On an
unspecified date, Billy Cowell, Director of Medical Services at the Grimes Unit,
administered the COVID-19 vaccine to Andrews, but Andrews did not receive any
booster vaccines or masks. (Doc. 2 at 18). His pleas for booster vaccines and masks were
ignored. Id.
On an unspecified date, Andrews saw Dr. Beck, who told Andrews that he was
very limited in what he could prescribe. (Doc. 2 at 18). Dr. Beck read Andrews’s medical
records and said his osteoporosis was so bad that a neurologist could not help. Id.
Andrews asserts that, after two years of waiting to see a neurologist, his appointment was
canceled. Id. However, Dr. Beck said that he would prescribe Gabapentin and Baclofen
and try to get Andrews back on some type of pain management. Id. at 18–19.
On an unspecified date, Dr. Smith took over for Dr. Beck. (Doc. 2 at 19). Dr.
Smith told Andrews that Gabapentin and Baclofen were “now banned” and simply said
that some people are broken and cannot be fixed. Id. Dr. Smith put Andrews on Keppra
and left him in pain with no help. Id.
Andrews asserts that he does not have a spleen or an appendix, and his “factor 5
blood clotting disorder” is problematic with vaccinations due to the serious blood clot
risk. (Doc. 2 at 18). He suffers from chronic obstructive pulmonary disease, asthma,
Hepatitis C, and he has had pneumonia with sepsis multiple times. Id. Andrews also
suffers from an immuno-compromised system. Id.
Andrews seeks declaratory relief, injunctive relief, and monetary damages. (Doc. 2
at 23).
III. DISCUSSION
To survive pre-service screening under the PLRA, a “complaint must contain
sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its
face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “[L]abels and conclusions,” a
“formulaic recitation of the elements of a cause of action,” and “naked assertions devoid
of further factual enhancement” are insufficient to plead a plausible claim. Id. And,
“[f]actual allegations must be enough to raise a right to relief above the speculative
level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citation omitted).
However, “[a] pro se complaint must be liberally construed,” and courts “should
construe the complaint in a way that permits the layperson’s claim to be considered
within the proper legal framework.” Topchian v. JPMorgan Chase Bank, N.A., 760 F.3d
843, 849 (8th Cir. 2014) (cleaned up; citations omitted); Solomon v. Petray, 795 F.3d
777, 787 (8th Cir. 2015) (citation omitted). Liberally construing Andrews’s Complaint,
he fails to allege any plausible claim against any of the named Defendants. Accordingly,
for the reasons stated herein, the Court recommends that Andrews’s claims be dismissed
without prejudice.
A. Wellpath/Corrective Care Solutions
Andrews names Wellpath and Corrective Care Solutions as Defendants to this
action. (Doc. 2 at 19). It is well settled that a corporation, such as WellPath or Corrective
Care Solutions, cannot be held liable for the wrongful conduct of its employees in a §
1983 action. Burke v. N. Dakota Dep’t of Corr. & Rehab., 294 F.3d 1043, 1044 (8th Cir.
2002). To support a claim against Wellpath or Corrective Care Solutions, Andrews must
show that there was a policy, custom, or official action that inflicted an actionable injury.
Johnson v. Hamilton, 452 F.3d 967, 973 (8th Cir. 2006); Sanders v. Sears Roebuck &
Co., 984 F.2d 972, 975–976 (8th Cir. 1993). Andrews has failed to allege that Wellpath
or Corrective Care Solutions had any unconstitutional policy, custom, or practice that
violated his right to constitutionally adequate medical care and caused him harm.
Accordingly, Andrews has failed to state a constitutional claim for relief against
WellPath or Corrective Care Solutions.
B. No Personal Action
Andrews sues Defendants Dr. Vol and Armstrong in their individual and official
capacities, and he sues Defendants Payne, Musselwhite, Jackson, Page, and Hurst in their
official capacities. (Doc. 2 at 19–20). In § 1983 actions, government officials are only
liable for their “own individual actions.” Iqbal, 556 U.S. at 676 (emphasis added).
Andrews does not mention Dr. Vol, Armstrong, Payne, Musselwhite, Jackson, Page, or
Hurst in his factual allegations. Without any facts regarding actions taken directly by
these seven Defendants, the Court is unable to determine if any of these Defendants
violated Andrews’s constitutional rights. As presented, Andrews has failed to state a
plausible claim against Defendants Dr. Vol, Armstrong, Payne, Musselwhite, Jackson,
Page, or Hurst.
C. Statute of Limitations
The majority of Andrews’s allegations occurred between April 20, 2017, and April
5, 2020. (Doc. 2 at 5–17). Andrews initiated this § 1983 action on May 23, 2024. (Doc.
2). When it is clear from the face of the Complaint that a claim falls outside of the
applicable limitations period, the Court may properly dismiss that claim at the screening
stage. Jones v. Bock, 549 U.S. 199, 215 (2007) (explaining that a complaint can be
dismissed for failure to state a claim when it is apparent, from the face of the complaint,
that the statute of limitations has run); Winston v. Burl, 596 Fed. App’x. 525, 525 (8th
Cir. 2015) (affirming § 1915A dismissal of claims that were barred by the statute of
limitations). The statute-of-limitations period for § 1983 actions filed in Arkansas is three
years. Spradling v. Hastings, 912 F.3d 1114, 1119 (8th Cir. 2019); Miller v. Norris, 247
F.3d 736, 739 (8th Cir. 2001).
Because Andrews filed his Complaint on May 23, 2024, any allegations of
unlawful conduct that occurred before May 23, 2021, are barred by the statute of
limitations and should be dismissed for failure to state a claim. Accordingly, it is
recommended that the following Defendants be terminated as parties to this action, as the
only allegations against them occurred prior to May 23, 2024: Wendy Kelley, Griffith,
Faust, Earl, Dr. Daniels, Dr. Foster, Dr. Lemon, Jason Kelley, Pierce, Smarjessee,
Delaney, and Ramsey.
D. Dateless Inadequate-Medical-Care Claims
Andrews does not provide exact dates for the only alleged constitutional violations
that are not clearly barred by the statute of limitations. (Doc. 2 at 17–19). He states that
he was evaluated by Dr. Foster on April 5, 2020, and, on an unspecified date “[t]wo years
later,” he had an infected tooth. Id. at 17. He claims that his orthopedic shoes, leg brace,
back belts, and walker with wheels were all taken away as a form of retaliation on an
unspecified date. Id. at 18. Andrews fails to provide dates or to name any individuals
associated with these allegations. Id.
Andrews’s dateless claims against Cowell, Dr. Beck, and Dr. Smith can be
construed as allegations of inadequate medical care. (Doc. 2 at 18–19). To plead a
plausible inadequate-medical-care claim under the Eighth Amendment, there must be
facts suggesting: (1) Andrews had an objectively serious need for medical care; and (2)
Defendants subjectively knew of, but deliberately disregarded, that serious medical need.
See Shipp v. Murphy, 9 F.4th 694, 703 (8th Cir. 2021); Barr v. Pearson, 909 F.3d 919,
921 (8th Cir. 2018). As to the second element, deliberate indifference is a high threshold
that goes well beyond negligence or gross negligence. Hall v. Higgins, 77 F.4th 1171,
1179 (8th Cir. 2023); Langford v. Norris, 614 F.3d 445, 460 (8th Cir. 2010). To establish
deliberate indifference, there must be facts suggesting Defendants “recognized that a
substantial risk of harm existed and knew that their conduct was inappropriate in light of
that risk.” Shipp, 9 F.4th at 703 (emphasis in the original); Smith v. Lisenbe, 73 F.4th 596,
600 (8th Cir. 2023). A mere disagreement with the course of medical care does not rise to
the level of a constitutional violation. Langford, 614 F.3d at 460; Barr, 909 F.3d at 921–
22.
Andrews provides no factual allegations against Cowell beyond stating that
Cowell administered the COVID-19 vaccine to Andrews.4 (Doc. 2 at 18). This bare
assertion is insufficient to state a claim against Cowell. Iqbal, 556 U.S. at 678. While
Andrews claims that his pleas for booster vaccines and masks were ignored, he fails to
provide any facts about when his requests were made and to whom. (Doc. 2 at 18).
Andrews claims that, on an unspecified date, Dr. Beck told Andrews that he was
very limited in what he could prescribe. (Doc. 2 at 18). After reviewing Andrews’s
medical records, Dr. Beck said his osteoporosis was so bad that a neurologist could not
help, and the appointment he had anticipated for two years was canceled. Id. However,
Andrews does not plead that Dr. Beck personally denied him medical care. Rather,
Andrews acknowledges that Dr. Beck said he would prescribe Gabapentin and Baclofen
and try to get Andrews back on some type of pain management. Id. at 18–19. Thus,
Andrews has failed to show that Dr. Beck was deliberately indifferent to his serious
medical needs.
4 Andrews attached to his Complaint an inmate grievance form, dated September 10, 2021,
wherein he asserted that he did not receive the incentive fee for getting the COVID-19 vaccine that was
administered by Cowell. (Doc. 2 at 191). He does not provide the date that he received the vaccine.
Finally, Andrews asserts that, on an unspecified date, Dr. Smith took over for Dr.
Beck and said that Gabapentin and Baclofen were now banned. (Doc. 2 at 19). He
prescribed Keppra for Andrews and left him “in pain with no help.” Id. Despite Dr.
Smith’s comment that some people are broken and cannot be fixed, Andrews does not
plead that Dr. Smith personally denied him medical care. Id. Rather, Dr. Smith prescribed
Keppra for Andrews because his prior medications were “banned.” Id. Based on a
reading of Andrews’s exhibits, it appears that his claim against Dr. Smith is not barred by
the statute of limitations. (Doc. 2 at 68, 186). However, even liberally construed, these
allegations do not show that Dr. Smith was deliberately indifferent to Andrews’s serious
medical needs.
Even if Andrews’s undated allegations occurred after May 23, 2021, and are not
barred by the statute of limitations, he has failed to establish that Cowell, Dr. Beck, or Dr.
Smith were deliberately indifferent to his serious medical needs. Accordingly, Andrews
has failed to state a deliberate-indifference claim against any Defendants.
E. Official-Capacity Claims
Andrews also sues Cowell, Dr. Beck, and Dr. Smith in their official capacities.
(Doc. 2 at 20). To plead a claim against these Defendants in their official capacities, if
they are ADC employees, Andrews must allege facts showing that the purported
constitutional violations were the result of an official ADC policy, an unofficial custom,
or a failure to train. Atkinson v. City of Mountain View, Mo., 709 F.3d 1201, 1214 (8th
Cir. 2013). However, if these Defendants are Wellpath employees, Andrews’s official-
capacity claims against them are the equivalent of claims against their employer,
Wellpath. See Sanders, 984 F.2d at 975-76. To succeed on a claim against Wellpath,
Andrews would have had to plead that a Wellpath policy or custom was the driving force
behind the violation of his rights. /d. Even liberally construing his Complaint, Andrews
makes no such allegations; therefore, he has failed to state an official-capacity claim
against any of the named Defendants.
IV. CONCLUSION
After careful consideration of Andrews’s Complaint, (Doc. 2), the Court finds that
Andrews fails to state a claim upon which relief may be granted.
IT IS THEREFORE RECOMMENDED THAT:
1. Andrews’s Complaint, (Doc. 2), be DISMISSED without prejudice.
2. The Court RECOMMEND that the dismissal count as a “strike” for the
purposes of the Prison Litigation Reform Act. 28 U.S.C. § 1915(g).
3. The Court CERTIFY, pursuant to 28 U.S.C. § 1915(a)(3), that an in forma
pauperis appeal from any Order adopting this Recommendation and the accompanying
judgment would not be taken in good faith.
DATED this 10th day of December, 2024.
yuna NWadve-
ITED STATES MAGISTRATE JUDGE
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