Flemons v. Westbrook

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF ARKANSAS

CENTRAL DIVISION

AARON ANTHONY FLEMONS PLAINTIFF

ADC #119749

v. No: 4:22-cv-00606 LPR-PSH

VALERIE WESTBROOK DEFENDANT

PROPOSED FINDINGS AND RECOMMENDATION

INSTRUCTIONS

The following Recommendation has been sent to United States District Judge

Lee P. Rudofsky. 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 this Recommendation. By not objecting, you

may waive the right to appeal questions of fact.

DISPOSITION

I. Introduction

Plaintiff Aaron Anthony Flemons filed a pro se complaint on June 30, 2022,

while incarcerated at the Arkansas Division of Correction’s East Arkansas Regional

Unit (Doc. No. 2). At the Court’s direction, Flemons filed a supplement to his

complaint. See Doc. Nos. 3 & 7. After screening, Flemons was allowed to proceed

with a First Amendment retaliation claim against Classification Officer Valerie

Westbrook and Captain Nunn and an Eighth Amendment deliberate indifference

claim against Westbrook. See Doc. Nos. 8 & 19. Flemons voluntarily dismissed his

claim against Nunn. See Doc. Nos. 11-12. His retaliation claim against Westbrook

was subsequently dismissed without prejudice for failure to exhaust available

administrative remedies. Doc. No. 45. Flemons’ deliberate indifference claim

against Westbrook remains. Id.

Before the Court is a motion for summary judgment, brief-in-support, and

statement of undisputed material facts filed by Westbrook (Doc. Nos. 88-90); and

Flemons’ response, brief-in-support, statement of disputed material facts, and

declarations in opposition to Westbrook’s motion (Doc. Nos. 98-102). Also before

the Court are two motions for injunctive relief filed by Flemons (Doc. Nos. 86-87)

seeking to enjoin Westbrook as well as certain medical providers who are not

defendants in this case. For the reasons described herein, the undersigned

recommends that Westbrook’s motion for summary judgment be granted and

Flemons’ motions for injunctive relief be denied.

II. Legal Standard

Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment is

proper if “the movant shows that there is no genuine dispute as to any material fact

and that the moving party is entitled to a judgment as a matter of law.” FED. R. CIV.

P. 56(a); Celotex v. Catrett, 477 U.S. 317, 321 (1986). When ruling on a motion for

summary judgment, the court must view the evidence in a light most favorable to

the nonmoving party. Naucke v. City of Park Hills, 284 F.3d 923, 927 (8th Cir.

2002). The nonmoving party may not rely on allegations or denials, but instead must

demonstrate the existence of specific facts that create a genuine issue for trial. Mann

v. Yarnell, 497 F.3d 822, 825 (8th Cir. 2007). The nonmoving party’s allegations

must be supported by sufficient probative evidence that would permit a finding in

his favor on more than mere speculation, conjecture, or fantasy. Id. (citations

omitted). An assertion that a fact cannot be disputed or is genuinely disputed must

be supported by materials in the record such as “depositions, documents,

electronically stored information, affidavits or declarations, stipulations (including

those made for purposes of the motion only), admissions, interrogatory answers, or

other materials . . .”. FED. R. CIV. P. 56(c)(1)(A). A party may also show that a fact

is disputed or undisputed by “showing that the materials cited do not establish the

absence or presence of a genuine dispute, or that an adverse party cannot produce

admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1)(B). A dispute is

genuine if the evidence is such that it could cause a reasonable jury to return a verdict

for either party; a fact is material if its resolution affects the outcome of the case.

Othman v. City of Country Club Hills, 671 F.3d 672, 675 (8th Cir. 2012). Disputes

that are not genuine or that are about facts that are not material will not preclude

summary judgment. Sitzes v. City of West Memphis, Ark., 606 F.3d 461, 465 (8th

Cir. 2010).

III. Facts1

Lawsuit Allegations & Flemons’ Incarcerations

Flemons claims that classification officer Westbrook violated his Eighth

Amendment rights when she assigned him to work on a hoe squad on December 30,

2021, despite knowing he was blind in one eye and unable to physically perform that

job. Doc. No. 2, Complaint, at 1. Flemons is an inmate at the East Arkansas

Regional Unit (EARU) of the Arkansas Division of Correction (ADC). Id. at 1. He

has been incarcerated in the ADC several times, beginning in 2001 at the age of 19.

Doc. No. 88-1, Inmate Record Summary, at 1-4. It appears that he was incarcerated

until December 6, 2006, and then re-incarcerated in 2009 for about a year. Id. at 2,

4-5 (showing discharge and new commitment dates). His current incarceration

began in February 2012. Id.

Flemons’ Medical Diagnosis & Health Restrictions

Flemons claims that he has been blind in his right eye since birth. Doc. No.

2 at 2. He asserts he received social security benefits because of his blindness and

1 Unless otherwise noted, these material facts are taken from the parties’ statements

of facts (Doc. Nos. 90 & 100) and the exhibits provided by the parties. Disputed facts are

noted. Opinions, legal conclusions, and immaterial facts are omitted.

also because of mental/emotional problems.2 Id.

In her review of prison records concerning Flemons, Shelley Byers, the

ADC’s Assistant Medical Services Administrator, identified one health and

classification restriction related to vision issues. Doc. No. 88-4, Declaration of

Shelly Byers (“Byers Declaration”), at ¶ 8. On June 4, 2009, during the initial intake

in an incarceration prior to the current one, Nurse Practitioner Estella Murray noted

that Flemons reported he was blind in his right eye on his initial report of physical

examination. Id. at ¶ 8; Doc. No. 88-8, June 4, 2009, Physical Examination; Doc.

No. 88-9, June 4, 2009, Health Services Encounter. She entered a restriction for

“jobs needing visual acc.” Id. There is no documentation of an eye examination

confirming the reported vision loss at that time.

The “jobs needing visual acc.” restriction was removed on November 4, 2018,

2 Flemons attached a copy of the Social Security Administration’s (SSA) decision

to his complaint. Doc. No. 2 at 12-17. That decision makes no findings about Flemons’

vision and specifically does not find he is disabled because of any vision issues. Id. Rather,

it states that Flemons stated he was blind in his left eye. Id. at 16. The SSA determined

that Flemons became disabled for purposes of his application for supplemental security

income on September 1, 2009, based on a personality disorder diagnosis. Id. at 16-17. The

findings specifically state that Flemons “has inflexible and maladaptive personality traits

which cause significant impairment in social or occupational functioning or subjective

distress, as evidenced by pathologically inappropriate suspiciousness or hostility,

pathological dependence, passivity, or aggressivity, and intense and unstable interpersonal

relationship and impulsive and damaging behavior.” Doc. No. 2 at 16. The findings further

state that Flemons’ “impairment has caused marked restriction in activities of daily living,

marked difficulties in maintaining social functioning, marked difficulties in maintaining

concentration, persistence or pace, and three episodes of decompensation, each of extended

duration.” Id.

by Advanced Practice Nurse Patrick Drummond who noted that Flemons’ eyes were

normal on his initial report of physical examination.3 Byers Declaration at ¶ 8; Doc.

No. 88-10, November 4, 2018, Physical Examination; Doc. No. 88-11, November 4,

2018, Health Services Encounter; Doc. No. 88-6, Other

Actions/Procedurals/Referrals, at 3 (showing the “jobs needing visual acc.”

restriction entered on June 4, 2009, was terminated on November 4, 2018).

Flemons submitted a copy of a medical record dated October 21, 2022, that

includes some of his medical history. Doc. No. 101, Declaration of Aaron Flemons

(“Flemons Declaration”), at 4-5. This record states that Flemons was seen onsite

by optometry in 2019 and documents the following findings:4

STRABISMUS OD X BIRTH-MONITER; AMBLYOPIA OS-

STABLE-MONITOR5

BLURRINESS IN OS COMING FROM CONVERGANCERIAD-

ACCOMODATION, MIOSIS, AND CONVERGANCE PT ED

3 It is not clear what triggered the examination in 2018. Doc. No. 88-10,

November 4, 2018, Physical Examination; Doc. No. 88-11, November 4, 2018, Health

Services Encounter. At this point, Flemons had been incarcerated continually since 2012.

Doc. No. 88-1, Inmate Record Summary, at 5-7.

4 The record before the Court does not contain a copy of the report of that

examination. The medical record submitted by Flemons refers to the findings of the

optometrist.

5 The Court takes judicial notice of the dictionary definitions of strabismus OD and

amblyopia OS. Fed. R. Evid. P. 201. “OD” refers to the right eye; “OS” refers to the left

eye; “strabismus” means the eye turns inward towards the nose (commonly referred to as

a “cross-eye”); “amblyopia” means the eye has reduced vision due to unequal vision signals

from each eye (also called a “lazy eye”). See https://www.merriam-

webster.com/dictionary.

Id.

Flemons speculates that Westbrook or another staff member may have

removed the restriction put in place in 2009 after he was assigned to hoe squad in

2021.6 Flemons Declaration at ¶ 9. He claims his work history proves he had an

applicable restriction because he was not previously assigned to the hoe squad. Id.

at 1-2, 6-11. Flemons also states that although he has never worked the hoe squad,

he has seen the hoe squad work. Id. at 2. He says the workers are given a hoe and

required to walk through ditches, fields, etc. chopping grass up and down.7 Id.

Flemons states that he received six major disciplinaries because he refused his

assignment to hoe squad with a loss of certain privileges, reduction in class, and the

loss of 125 days good time. Id. at 3.

6 Flemons complains that Westbrook refused to provide during discovery his

classification restrictions prior to the date he was assigned to the hoe squad and that he

needs more time to complete discovery. Doc. No. 99, Flemons’ Brief-in-Support, at fn. 1.

Flemons was afforded ample time to litigate his discovery requests, and the Court

previously determined that Westbrook made a good faith effort to respond to his discovery

requests and provided the documents she could obtain. See Doc. No. 85. Additionally,

Westbrook submitted a copy of a report called Other Actions/Procedures/ Referrals that

lists waivers and restrictions among other medical actions. See Doc. No. 88-6. This report

does not list any additional restrictions after the June 4, 2009 restriction was terminated on

November 4, 2018.

7 In his complaint, Flemons describes the danger presented by his assignment to

the hoe squad, stating “On hoe squad inmates are required to work through fields, in and

out of ditches, line up closely side by side and are given a hoe and told to chop grass. I

could chop off someone elses foot or worse cut myself because I can’t see to do the

work.” Doc. No. 2-1 at 2.

The ADC’s Classification Committee & Work Assignments

Administrative Directive 13-55 (“AD 13-55”) is the ADC’s policy governing

assignment to hoe squads, garden squads, and field utility squads. Doc. No. 88-12,

AD 13-55. AD 13-55(II)(B) provides the medical classification guidelines for

assigning an inmate to hoe squad. Doc. No. 88-12 at 2. Inmates that are medical

classification M-1 or M-2 may be assigned to hoe squad unless they have health and

classification restrictions that restrict assignments that require: 1) prolonged

crawling, stooping, running, jumping, walking, or standing, 2) strenuous physical

activity for periods in excess of eight hours, 3) handling or lifting of heavy materials

in excess of fifty pounds, or 4) exposure to high environmental temperature for a

period in excess of eight hours. Id. at 2, 5-6. Other assignment limitations may be

determined on an individual basis by the unit classification officer. Id. at 5-6.

The policy does not require the classification committee to hold a hearing or

meet with the inmate before assigning an inmate to work on the hoe, garden, or field

utility squads. Doc. No. 88-12. It does provide that an inmate may be “reassigned

at the recommendation of the field supervisor and/or the Unit Classification Officer

on a temporary basis until seen by the Unit Classification Committee,” if the inmate

is unable to perform the job despite his best efforts or if the inmate has an enemy

alert that needs to be evaluated. Id. at 3.

The classification committee at each unit assigns inmates at that unit to

housing assignments and jobs. Doc. No. 88-3, Declaration of Valerie Westbrook

“Westbrook Declaration”), at ¶ 3; Byers Declaration at ¶ 3. The classification

committee consists of several members, including a representative from Wellpath,

the prison’s medical provider. Westbrook Declaration at ¶ 5. When making

assignments, the classification committee considers inmates’ health and

classification restrictions. The committee does not assign inmates to a housing

assignment or job if they have a prescription indicating that an assignment would be

inappropriate. Westbrook Declaration at ¶ 4; Byers Declaration at ¶ 4.

The Wellpath representative is not a voting member of the committee.

However, he or she sits on the classification committee to ensure that inmates are

not inappropriately assigned. Id. When an inmate has a medical condition or is

undergoing a treatment that would make a particular assignment inappropriate, the

Wellpath representative recommends that the inmate be given a different

assignment. Id. When the Wellpath representative recommends that an assignment

would be medically inappropriate, the classification committee does not place the

inmate in that assignment even if they do not have a relevant health and classification

restriction. Id.

Wellpath nurses and providers can issue health and classification restrictions.

Byers Declaration at ¶ 6. Nurses can write temporary prescriptions for inmates

which remain in place until they are able to see their doctor. The doctor can then

write a permanent prescription if found necessary. Id. at ¶ 6. Health and

classification restrictions can be added at any time. Id. To add a classification

restriction, a Wellpath nurse or provider must fill out an electronic form which will

instantly add it to the inmate’s list of health and classification restrictions. Id. at ¶

7.

Flemons’ Assignment to the Hoe Squad

On November 4, 2018, Flemons’ medical restriction to “jobs needing visual

acc.” was removed by a Wellpath care provider.8 Flemons was assigned to the hoe

squad on December 30, 2021. Doc. No. 88-1, Inmate Record Summary, at 34; Doc.

No. 88-2, Classification Committee Action, at 1-6. The assignment was requested

by Westbrook on November 2, 2021, and approved by committee members

Westbrook, Deputy Warden Michael H. Richardson, Major Tyrone D. Allison,

School Principal Angela D. Beard, and Nurse Assistant Tryphena Jackson.9 Doc.

No. 88-2 at 1-5. See also Doc. No. 88-3, Declaration of Valerie Westbrook

“Westbrook Declaration”), ¶ 1.

At the time Flemons was assigned to the hoe squad, his medical classification

8 Flemons had a health and classification restriction for “jobs needing visual acc.”

from June 4, 2009, through November 4, 2018. Byers Declaration at ¶ 8; Doc. No. 88-6

at 3. Flemons has not had any health and classification restrictions about his vision since

November 4, 2018. Byers Declaration at ¶ 9; Doc. No. 88-6; Doc. No. 88-7, Health and

Classification Restrictions.

9 It is not clear whether the committee members met in person or in some other

manner.

was M2. See Doc. No. 88-7, November 4, 2018 Health Services Encounter, at 4, 6

(showing M2 classification on November 4, 2018, and on June 16, 2022).

Additionally, Flemons had no health or classification restrictions in place that would

have prevented him from being assigned to hoe squad. Westbrook Declaration at ¶

7; Byers Declaration at ¶ 8-9. See also Doc. No. 88-5, Grievance EA-24-00242

Worksheet (in response to a grievance field by Flemons, Westbrook stated she does

not make entries in the health classification restrictions, but only uses them to assign

jobs); Doc. No. 88-6, Other Actions/Procedures/Referrals (showing no medical

restrictions listed since 2018 for Flemons). And finally, at the time Flemons was

assigned to the hoe squad, the classification committee representative from Wellpath

did not notify the committee of any reason why he could not be assigned to that job.

Westbrook Declaration at ¶ 6.

It is undisputed that Westbrook has no medical training beyond CPR and first

aid and does not have access to any inmate medical records beyond what is listed in

their health and classification restrictions and any related attachments. Westbrook

Declaration at ¶¶ 8-9.

IV. Analysis

Flemons’ remaining Eighth Amendment deliberate indifference claim is

based on his allegation that Westbrook assigned him to work the hoe squad despite

her knowledge that he is blind in one eye, has mental and emotional problems, and

is unable to physically perform that job.10 Doc. No. 2 at 2. He sues Westbrook in

both her individual and official capacities. Id. at 5.

A. Individual Capacity Claims

Westbrook asserts that she is entitled to qualified immunity with respect to

Flemons’ individual capacity claims. Qualified immunity protects government

officials from liability for damages “insofar as their conduct does not violate clearly

established statutory or constitutional rights of which a reasonable person [in their

positions] would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

Qualified immunity is a question of law and is appropriately resolved on summary

judgment. McClendon v. Story County Sheriff’s Office, 403 F.3d 510, 515 (8th Cir.

2005); Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). To determine whether a

defendant is entitled to qualified immunity, the Court must consider two questions:

(1) do the facts alleged by plaintiff establish a violation of a constitutional or

statutory right; and (2) if so, was that right clearly established at the time of the

defendant’s alleged misconduct. Wright v. United States, 813 F.3d 689, 695 (8th

Cir. 2015). Courts may exercise “their sound discretion in deciding which of the

two prongs of the qualified immunity analysis should be addressed first in light of

10 Flemons also alleges that Westbrook placed him on the hoe squad without a

classification hearing. Doc. 2 at 2. His due process claims based on the lack of a hearing

have been dismissed in this case. See Doc. No. 19.

the circumstances of the particular case at hand.” Pearson v. Callahan, 555 U.S.

223, 236 (2009). In this case, the Court finds that Flemons fails to establish a

constitutional violation, as explained below.

The Eighth Court of Appeals has set forth the standard for Eighth Amendment

violations relating to work assignments as follows:

The Eighth Amendment’s prohibition against “cruel and unusual

punishment” applies to conditions of confinement, see Rhodes v.

Chapman, 452 U.S. 337, 345–47, 101 S.Ct. 2392, 69 L.Ed.2d 59

(1981), and prison work assignments fall under the ambit of conditions

of confinement, Choate v. Lockhart, 7 F.3d 1370, 1373 (8th Cir. 1993).

The Eighth Amendment “forbids knowingly compelling an inmate to

perform labor that is beyond the inmate’s strength, dangerous to his or

her life or health, or unduly painful,” Sanchez v. Taggart, 144 F.3d

1154, 1156 (8th Cir. 1998), and requires supervisors to supervise and

train subordinates to prevent the deprivation of a constitutional right,

see Tlamka v. Serrell, 244 F.3d 628, 635 (8th Cir. 2001).

To prevail on his Eighth Amendment claim, Ambrose “must prove both

an objective element, which asks whether the [risk of harm] was

sufficiently serious, and a subjective element, which asks whether the

defendant officials acted with a sufficiently culpable state of mind.”

Choate, 7 F.3d at 1373.

Ambrose v. Young, 474 F.3d 1070, 1075 (8th Cir. 2007).

There are no disputed issues of material fact in this case. Flemons has come

forward with no evidence showing that he faced a sufficiently serious risk of harm

by being assigned to the hoe squad, or that Westbrook was deliberately indifferent

to any such risk.

First, Flemons has not established that he is medically unable to work the hoe

squad. While there is evidence showing that Flemons suffers vision issues (a lazy

eye and a crossed eye), as well as evidence that he previously had a medical

restriction based on his own report of being blind in one eye, there is no evidence in

this record that his vision problems actually render it unsafe for him to work on the

hoe squad. And there is no genuine dispute that a medical care provider in 2018

removed the restriction Flemons previously held and determined that Flemons’

issues would not render work on the hoe squad unsafe.11

Second, Westbrook was in no position to determine whether Flemons’ vision

issues precluded him from working the hoe squad. The record shows that Flemons

had no health or classification restrictions in place that would have prevented his

assignment to the hoe squad in 2021; that Westbrook has no significant medical

training or access to inmate medical records; and that the medical member of the

classification committee did not inform the committee of any medical concerns with

11 Flemons attempts to argue that he actually had a medical restriction related to his

vision in place at the time of his assignment to the hoe squad, and that restriction would

have prevented that assignment. His claim is speculative at best and is not supported by

the record. See Flemons’ Declaration at 2; Doc. No. 99, Flemons’ Brief-in-Support, at n.

2. Flemons’ unsupported statements are insufficient to defeat a properly supported motion

for summary judgment. See Conseco Life Ins. Co. v. Williams, 620 F.3d 902, 909 (8th Cir.

2010) (quoting Flentje v. First Nat’l Bank of Wynne, 340 Ark. 563, 11 S.W.3d 531 (2000)

(“When the movant makes a prima facie showing of entitlement to a summary judgment,

the respondent must discard the shielding cloak of formal allegations and meet proof with

proof by showing a genuine issue as to a material fact.”).

his being assigned to the hoe squad. Additionally, the record indicates that the entire

committee voted to place Flemons on the hoe squad, not just Westbrook.

Flemons maintains he sent Westbrook requests for interviews, stopped her in

the hallway and told her of his vision problems, and asked her to review his social

security paperwork. Doc. No. 99, Flemons’ Brief-in-Support, at 4. But for the

reasons explained above, Westbrook must rely on the restrictions in place and input

from the Wellpath committee member when making assignments.12 Westbrook

Declaration at ¶¶ 4, 9. And that Wellpath representative raised no concerns

according to the documentation of the committee meeting. See Doc. No. 88-2 at 1-

6.

Finally, despite Flemons’ arguments to the contrary, Westbrook’s failure to

hold a hearing before assigning him to the hoe squad does not evidence any

deliberate indifference on her part. The ADC’s policy regarding work assignments

does not require a hearing be held before such assignments are made. Rather, it

12 See e.g., Moore v. Moore, 111 F. App’x 436, 438 (8th Cir. 2004) (per curiam)

(explaining that “in the absence of a medical lay-in or any other medical confirmation to

support [the inmate’s] assertions that he was too injured to work, there is no evidence to

show that [prison] officials were aware that working [in a particular job] posed a risk to

[the inmate’s] health or safety”) (unpublished). See also Holden v. Hirner, 663 F.3d 336,

343 (8th Cir. 2011) (“Prison officials lacking medical expertise are entitled to rely on the

opinions of medical staff regarding inmate diagnosis…”); Camberos v. Branstad, 73 F.3d

174, 176 (8th Cir. 1995) (“[B]ecause [prison officials] lacked medical expertise, they

cannot be liable for the medical staff's diagnostic decision…”).

states that the committee will meet with the inmate under certain circumstances, such

as when the inmate is not performing well enough despite his or her best efforts or

when there are security concerns. See Doc. No. 88-12 at 3.

Flemons has failed to establish that his vision issues preclude him from

assignment to the hoe squad. He also has failed to establish that Westbrook acted

with deliberate indifference by assigning him to such work. Therefore, Westbrook

is entitled to qualified immunity on Flemons’ claims against her in her individual

capacity.

B. Official Capacity Claims

Flemons’ monetary claims against Westbrook in her official capacity are

barred by sovereign immunity. A suit against a defendant in his or her official

capacity is in essence a suit against the State of Arkansas, and any official capacity

claim for monetary damages against that defendant is barred by the doctrine of

sovereign immunity. Will v. Michigan Department of State Police, et al., 491 U.S.

58, 71 (1989); Nix v. Norman, 879 F.2d 429, 431-432 (8th Cir. 1989).

The doctrine of sovereign immunity does not apply to Flemons’ request for

injunctive relief. See Larson v. Kempker, 414 F.3d 936, 939-40 (8th Cir. 2005);

Murphy v. State of Ark., 127 F.3d 750, 754 (8th Cir. 1997). However, the only

injunctive relief sought by Flemons in his complaint is the restoration of his class,

lost good time, and lost privileges resulting from the disciplinaries he has received

for refusing to work the hoe squad.13 Doc. No. 2 at 3. Because Flemons’ due process

claims relating to those disciplinaries have been dismissed, this request for injunctive

relief is not related to his pending claims in this case and cannot be awarded. See

Doc. No. 19.

Flemons also filed two motions for injunctive relief against both Westbrook

and multiple non-defendants (Doc. Nos. 86-87). He requests that the Court order

non-defendants “the Medical Department/Emma Hatchett/Jason Palmer Health

Service Administrator/Assistant Health Services Admin.; Tracy Bennett/Gary

Kerstein mid-level provider/Doctor and/or any other medical staff responsible” to

give him the appropriate medical restrictions so that he will not be given an

inappropriate work assignment. Doc. No. 86 at 2. Flemons also asks the Court to

direct Westbrook to remove him from the hoe squad or any other inappropriate work

assignment. Id. at 3. First, the Court cannot award injunctive relief against non-

defendants in this case. And second, as the Court has already found that Westbrook

did not violate Flemons’ rights by assigning him to the hoe squad, his request for an

13 The Court cannot restore lost good time in a § 1983 suit in any case. A prisoner

may only pursue the restoration of those good time credits in a federal habeas action,

after he has exhausted his available remedies in state court. 28 U.S.C. § 2254; Edwards

v. Balisok, 520 U.S. 641, 643–44; Heck v. Humphrey, 512 U.S. 477 (1994); Portley–El,

288 F.3d, 1063, 1066–67 (8th Cir. 2002).

order directing Westbrook to do so should be denied. He must obtain the appropriate

health classifications and restrictions through medical personnel.'*

Vv. Conclusion

For the reasons stated herein, the undersigned recommends that Westbrook’s

motion for summary judgment (Doc. No. 88) be granted and Flemons’ claims be

dismissed with prejudice. Flemons’ motions for injunctive relief (Doc. Nos. 86-87)

should be DENIED.

DATED this 16" day of January, 2025.

UNITED STATES MAGIS RATE JUDGE

'4 Flemons claims that he has filed multiple grievances against Westbrook and the

medical department regarding his health classifications, but that those grievances “either

disappear or are not investigated/answered and/or given evasive responses.” Doc. No. 87

at 1. He also claims he has a pending lawsuit against Tracy Bennett, Gary Kerstein, and

Hatchett that is related to this case. Doc. No. 86 at n. 1. A review of pending cases filed

by Flemons in this district shows that he has a case pending against these defendants

relating to treatment of an alleged scabies infection. See Flemons v. Hatchett, et al., Case

No. 2:23-cv-123-BSM-ERE.