MARZIALE v. BROWN

Cite as 2025 Ark. App. 468

ARKANSAS COURT OF APPEALS

DIVISION I

No. CV-22-679

CHRISTINA MARZIALE, Opinion Delivered October 8, 2025

INDIVIDUALLY AND AS MOTHER OF

APPEAL FROM THE JEFFERSON

BABY BOY MARZIALE; AND DANA

COUNTY CIRCUIT COURT

MCLAIN, ADMINISTRATOR OF THE

[NO. 35CV-18-660]

ESTATE OF ELAINE MARZIALE

APPELLANTS

HONORABLE ALEX GUYNN, JUDGE

V.

KIMBERLY BROWN, SPECIAL

ADMINISTRATOR FOR THE ESTATE

OF TENISHA BROWN, INDIVIDUALLY

AND IN HER OFFICIAL CAPACITY;

TYRAN TURNER, INDIVIDUALLY

AND IN HIS OFFICIAL CAPACITY;

JENNIFER FRIERSON, INDIVIDUALLY

AND IN HER OFFICIAL CAPACITY;

PHYLLIS SILAS; WELLPATH, LLC,

F/K/A CORRECT CARE SOLUTIONS,

LLC; STEPHEN COOK; MAKITA

LAGRANT; AND JOHN DOES 5–10 IN

THEIR INDIVIDUAL CAPACITIES

APPELLEES AFFIRMED

RAYMOND R. ABRAMSON, Judge

This is an Arkansas Civil Rights Act case involving a jail transport from the Arkansas

Department of Community Correction facility in Pine Bluff, Arkansas (DCC), to the

Jefferson County Regional Medical Center (JRMC) on October 4, 2015. The issues on

appeal involve sovereign and statutory immunity.

For the reasons explained below, we affirm the circuit court’s summary-judgment

order.

I. Background

Christina Marziale entered the custody of the DCC when she was approximately

thirty weeks pregnant with twins. On October 4, 2015, she was examined by Stephen Cook,

a licensed practical nurse employed by Correct Care Solutions, LLC (CCS). CCS had a

contract with the DCC to provide medical care to inmates. Cook determined that Marziale

needed to go to the hospital, but he or someone else at CCS chose not to call an ambulance.

Instead, Tenisha Brown,1 a correctional officer at the DCC, was asked to drive Marziale to

the hospital for observation.

Marziale stated in an affidavit that Cook told her “in the presence of the guard that I

was just going to the hospital for a check up.” Further, Marziale stated in her affidavit that

“Cook did not even talk to the driver of the agency car, [Tenisha] Brown, to give her a report,

though if she were receiving responsibility for the resident, surely she, as an untrained guard,

needed information even more than a nurse.” Additionally, she said that “Mr. Cook did not

say it was an emergency, nor did Mr. Cook act with any urgency.” Brown’s testimony in her

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Brown passed away while the lawsuit was ongoing in the circuit court. Kimberly

Brown was appointed the special administrator of her estate for the purpose of defending

this lawsuit.

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deposition is consistent with Marziale’s affidavit—that no one told her anything about

Marziale’s condition.

Brown testified that she asked Marziale if she was okay, and Marziale responded that

she was. Marziale did not say anything further to Brown during the drive to the hospital.

Instead of taking Marziale straight to JRMC, Brown stopped at Sonic to get a hamburger.

She testified that she did this because she needed food to take with her medication and

because she was afraid she would be at the hospital with Marziale for up to twelve hours

without access to food once she got there. According to Brown’s testimony—the only

evidence in the record about this point—the stop took approximately two minutes. The entire

ride from the DCC facility to the hospital took fifteen to seventeen minutes.

Once Marziale arrived at JRMC, Brown escorted her to the second floor, which was

the labor and delivery unit. At that point, Marziale began vomiting blood. The medical staff

at the hospital performed an emergency cesarean to deliver the twins: a girl named Elaine

and a boy. The boy had very low Apgar scores and was transferred to the NICU at Arkansas

Children’s Hospital where he stayed for some time. Elaine unfortunately died shortly before

or after delivery.

The litigation surrounding this incident began a few days later. Although only one

order from one of those lawsuits is before us, Brown’s deposition referenced above was taken

in a federal proceeding, and there are arguments in this appeal involving an order in that

same federal proceeding.

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Marziale initiated this case on October 7, 2015, when she sued Phyliss Silas, the DCC

warden. At some point, an estate was opened for Elaine, and Dana McLain was appointed

administrator. Marziale and McLain are the appellants here. The appellants eventually

dismissed Silas but proceeded to file several amended complaints against various correctional

officers, medical personnel, and John Does as well as CCS. By December 14, 2020, the

remaining defendants were CCS, three correctional officers in their official and individual

capacities—Tyran Turner, Jennifer Frierson, and the estate of Tenisha Brown—and two

LPNs—Makita LaGrant and Stephen Cook. The appellants brought claims against Turner,

Frierson, and Brown for violations of the Arkansas Civil Rights Act, wrongful death, outrage,

and violations of the United States Constitution and because they were victims of a felony

(felony manslaughter) under Arkansas Code Annotated section 16-118-107 (Repl. 2016).

Marziale brought these same claims against LaGrant, Cook, and CCS on behalf of herself

and her son.

The appellants moved to dismiss LaGrant, Cook, and CCS with prejudice, and that

motion was granted on October 4, 2021. The circuit court granted Turner’s and Frierson’s

motions to dismiss based on sovereign and statutory immunity on January 24, 2022. After

this January 24 order, the remaining claims were against Brown in her individual and official

capacity.

The appellants filed a partial motion for summary judgment against Brown on

January 24, 2022. In that motion, the appellants requested that the circuit court find that

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Brown had behaved recklessly and that she had been deliberately indifferent to Marziale’s

serious medical condition.

Brown filed her own motion for summary judgment on February 21. In her motion,

Brown contends that the claims against her in her official capacity had been dismissed and

that she was entitled to judgment as a matter of law on the individual claims because she had

statutory immunity. On May 5, the appellants filed their fourth amended and supplemental

complaint restating their claims for wrongful death and intentional infliction of emotional

distress as well as their claims under the ACRA but also adding a claim for negligence. In

the fourth amended complaint, the appellants state they are bringing only individual-capacity

claims. Brown then amended her summary-judgment motion to include arguments about

why she was entitled to judgment as a matter of law on the appellants’ new negligence claim.

The circuit court held two hearings on the motions and then entered an order on

July 13 granting Brown’s motion for summary judgment. The circuit court also entered a

judgment dismissing all claims against Brown with prejudice. The appellants timely filed

their notice of appeal identifying “the grant of summary judgment to Kimberly Brown” as

the order they were appealing.

At some point during these events, there was a federal proceeding filed by Marziale

and McLain against CCS, Makita LaGrant, Stephen Cook, and Wellpath, LLC (the 2018

Federal Case). During the 2018 Federal Case, Magistrate Judge Deere entered a partial

recommended disposition in which she found that Marziale “had serious medical needs

during her pregnancy and the babies’ delivery.” Judge Deere made no findings regarding

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Brown’s behavior or knowledge or the effect of the stop at Sonic on Marziale’s or her

children’s conditions. Judge Marshall adopted Judge Deere’s findings and recommended

disposition, denying LaGrant’s and Cook’s motions for summary judgment and partially

granting and partially denying Marziale’s motion for partial summary judgment. The

appellants argue that the partial recommended disposition in the 2018 Federal Case has a

preclusive effect in this state proceeding.

II. Standard of Review

A circuit court should grant summary judgment only when there are no genuine

issues of material fact to be litigated, and the moving party is entitled to judgment as a matter

of law. Boyle Ventures, LLC v. City of Fayetteville, 2025 Ark. 71, at 4, 711 S.W.3d 280, 283.

Once the moving party has established a prima facie entitlement to summary judgment, the

opposing party must meet proof with proof and demonstrate the existence of a material issue

of fact. Id. On appellate review, this court determines if summary judgment was appropriate

by deciding whether the evidentiary items presented by the moving party in support of the

motion leave a material fact unanswered. Id. The court views the evidence in the light most

favorable to the party against whom the motion was filed, resolving all doubts and inferences

against the moving party. Id. This review focuses not only on the pleadings but also on the

affidavits and documents filed by the parties.

Whether a party is immune from suit is an issue of law, which is reviewed de novo.

City of Highfill v. Scantlin, 2025 Ark. App. 242, at 4–5, 713 S.W.3d 501, 506.

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III. Analysis

Because Brown was a correctional officer performing her duties during the facts giving

rise to this lawsuit, all the appellants’ claims are affected by sovereign and statutory immunity.

We discuss those issues in turn below.

A. Sovereign Immunity

1. Turner and Frierson

The first point on appeal is whether the circuit court erred in granting Turner’s and

Frierson’s Arkansas Rule of Civil Procedure 12(b)(6) motions to dismiss.

The appellants appealed “the grant of summary judgment to Kimberly Brown[.]”

“[A]n order not mentioned in the notice of appeal is not properly before an appellate court.”

Johnson v. De Kros, 2014 Ark. App. 254, at 11, 435 S.W.3d 19, 26. The January 24 order

granting the motion to dismiss is not properly before this court because the appellants did

not identify that order in their notice of appeal. Instead, they specifically identified only the

order related to Brown’s motion for summary judgment.

The appellants cannot argue that the January 24 dismissal order was an intermediate

order involving the merits and necessarily affecting the “summary judgment to Kimberly

Brown.” They chose to designate a partial record, and Turner’s and Frierson’s Rule 12(b)(6)

motions are not included in it. It is clear that the appellants did not intend to appeal that

order, and it is not before us.

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2. Kimberly Brown

In the January 24 order, the circuit court dismissed all claims against Turner and

Frierson. In that same order, the circuit court stated, “Tenisha Brown’s Motion [to dismiss]

is hereby denied.” Brown’s motion to dismiss, like Turner’s and Frierson’s, was based on

sovereign immunity. Therefore, the official-capacity claims against Brown were still pending

after the January 24 order.

The order granting Brown’s motion for summary judgment did not mention any

other motions, nor did it address any specific claims. Brown’s motion for summary judgment

specified that she was seeking relief only on the claims against her in her individual capacity.

Therefore, the official-capacity claims were still pending when the circuit court entered its

order granting summary judgment. However, the appellants proceeded to abandon their

official-capacity claims against Brown when they stated in their notice of appeal that “[e]ach

Plaintiff abandons any pending but unresolved claim.” As Rule 3(e)(vi) states, “This

abandonment shall operate as a dismissal with prejudice effective on the date that the

otherwise final order or judgment appealed from was entered.” Ark. R. App. P.–Civ. 3(e)(vi).

For this reason, we hold that the appellants abandoned their official-capacity claims

against Brown. Therefore, we do not address the merits of the appellants’ sovereign-

immunity arguments.

B. Statutory Immunity

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We turn now to the individual-capacity claims against Brown. Under Arkansas Code

Annotated section 19-10-305(a) (Repl. 2016),2 “Officers and employees of the State of

Arkansas are immune from liability and from suit, except to the extent that they may be

covered by liability insurance, for damages for acts or omissions, other than malicious acts

or omissions, occurring within the course and scope of their employment.”

This is known as statutory immunity. To determine whether a state actor is entitled

to statutory immunity, “the court has traditionally been guided by the federal standard for

qualified immunity.” Koontz v. Payne, 2025 Ark. App. 200, at 8, 713 S.W.3d 34, 42.

1. Insurance coverage

Under the statute, a state official is not entitled to statutory immunity to the extent

he or she is covered by liability insurance. There is no evidence in the record that Brown,

personally, held any type of insurance that would pay a judgment against her. Instead, the

appellants argue that the indemnity provision in the contract between CCS and the DCC

would cover such a judgment.

Brown is not a party to the contract between CCS and the DCC. Further, the

appellants are not parties to the contract between CCS and the DCC, nor are they third-

party beneficiaries of the contract. See Cherry v. Tanda, Inc., 327 Ark. 600, 610, 940 S.W.2d

2

This was the immunity statute in effect when the order was entered and the appeal

was briefed. The legislature has since reorganized the Code, and the statutory-immunity

provision is now at section 25-44-305(a), effective August 5, 2025. The new provision is

identical to the one cited above.

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457, 461 (1997).3 For that reason, the appellants could not sue CCS to enforce the indemnity

provision. Id.

Instead, the indemnity provision would be invoked only if Brown were found liable

in her individual capacity and the DCC paid that judgment. In that case, the State of

Arkansas would have to pursue a contract claim against CCS to determine whether the

indemnity provision applied to this case. This would “indirectly coerce the State to bear a

financial obligation” and would violate the principles of sovereign immunity. Traveler’s Cas.

& Ins. Co. of Am. v. Ark. State Highway Comm’n, 353 Ark. 721, 729, 120 S.W.3d 50, 54 (2003).

Further, if the State was not successful in a lawsuit against CCS to determine whether CCS

was required to indemnify, then the State would be liable for damages, also violating the

principles of sovereign immunity.

For these reasons, the principles of statutory immunity do apply to all of appellants’

claims against Brown in her individual capacity.

2. Deliberate indifference

The appellants do not argue that Brown acted maliciously. Therefore, Brown “is

entitled to qualified immunity unless (1) [appellants have] alleged facts that demonstrate the

deprivation of an actual constitutional right, and (2) the right was clearly established at the

time of the alleged violation such that a reasonable official would have known that his actions

were unlawful.” Koontz, 2025 Ark. App. 200, at 9, 713 S.W.3d at 42.

3

We make no finding regarding the interpretation, construction, or applicability of

the indemnity clause between the DCC and CCS.

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The appellants allege that Brown was deliberately indifferent to Marziale’s serious

medical need, which is a type of cruel and unusual punishment that both the United States

Supreme Court and Arkansas appellate courts have recognized. See, e.g., Estelle v. Gamble,

429 U.S. 97 (1976); Grayson v. Ross, 369 Ark. 241, 253 S.W.3d 428 (2007). Deliberate

indifference “is something more than gross negligence, yet less than acting with the purpose

to induce harm.” Grayson, 369 Ark. at 245, 253 S.W.3d at 431. Further, deliberate

indifference “requires a showing that the official knew the risk existed, but disregarded it.”

Early v. Crockett, 2014 Ark. 278, at 13, 436 S.W.3d 141, 149. In other words, to overcome

summary judgment, the facts as viewed in the light most favorable to the appellants would

have to show that Brown knew that Marziale had a serious medical need and disregarded it.

The appellants cannot clear that hurdle.

None of the parties argue that Marziale was not suffering from a serious medical need,

so for the purpose of this appeal, the court can proceed as if Marziale has proved that

element. In the 2018 Federal Case, Judge Deere found that there was a serious medical need.

The appellants ask this court to hold that offensive collateral estoppel requires a finding that

Brown was deliberately indifferent. However, Judge Deere did not make any findings as to

Brown’s actions or state of mind, and none of the parties are fighting about whether a serious

medical need existed. Further, Judge Deere’s findings do not show anything about whether

Brown had subjective knowledge of the serious medical need. The doctrine of offensive

collateral estoppel is not, therefore, relevant to this appeal.

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It is important to note that pregnancy alone is not a serious medical need. Coleman v.

Rahija, 114 F.3d 778, 785 (8th Cir. 1997) (noting that “a woman’s pregnancy is generally

not, alone, a serious medical need” and identifying factors that can show a complicated

pregnancy constitutes a serious medical need). Brown did not have any interactions with

Marziale before the transport, and there are no facts in the record indicating that Brown had

any reason to know the pregnancy was high risk.

As for the day of the transport, Brown testified in her deposition that Marziale walked

to the car without assistance and that “she was walking fine.” Brown also testified that she

did not remember Marziale being doubled over in pain. When Brown arrived at the DCC

medical unit, Marziale was sitting calmly and quietly.

Although appellants state in their briefing that there were bloodstains on Marziale’s

shirt and shorts when Brown took custody of her, there is absolutely no support for that in

the record. In fact, Marziale’s treating physician testified specifically that Marziale did not

have any vaginal bleeding at all. From the record, the only blood that was observed on her

clothing was after she arrived at the hospital and vomited in the labor and delivery unit. The

appellants claim that her treating physician said that “it was obvious she had been throwing

up for some time.” In their reply brief, the appellants argue that because the blood on

Marziale’s shirt was clotted, a reasonable juror could conclude it was there for a long time.

However, this conjecture is not supported by the record because the treating physician

testified only that he had been told that her vomiting had started the day before. He also

testified that the blood on Marziale’s clothing had clotted before it came out of her GI tract,

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not that it had taken a long time to clot after she vomited. This court can only consider facts

that are in the record and not “gratuitous assertions based on matters not in the record.”

Turner v. State, 349 Ark. 715, 720, 80 S.W.3d 382, 386 (2002).

Brown was not aware that Marziale had been vomiting blood while in the DCC until

long after the emergency cesarean section. Further, she asked Marziale if she was okay, and

Marziale responded that she was. Marziale did not say anything further during the drive.

Neither Cook nor Brown’s supervisor told her that this was a medical emergency, and

Brown testified that if it had been an emergency, she thought an ambulance would have

been called. Cook never told Brown anything he had observed about Marziale’s condition.

Marziale herself stated, “Mr. Cook told me in the presence of the guard that I was just going

to the hospital for a check up.” And further, “Mr. Cook did not say it was an emergency, nor

did Mr. Cook act with any urgency.” We also note that Marziale was not in labor during her

transport to the hospital.

It was routine for pregnant inmates to go for treatments that were not emergencies.

Brown’s supervisor told her that she was taking Marziale to the hospital for observation.

Brown testified that she would not have stopped at Sonic if she had known it was an

emergency.

The appellants did not include any affidavits, depositions, or other evidence in their

summary-judgment filings that would contradict any of Brown’s testimony. Marziale’s

affidavit presented at the summary-judgment hearing even states there was no indication to

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Brown that this was an emergency. This situation resulted in tragedy, but there is simply no

evidence that Brown knew she was transporting someone with a serious medical need.

Without a showing that “the official knew the risk existed, but disregarded it[,]” Early,

2014 Ark. 278, at 13, 436 S.W.3d at 149, the appellants cannot prove their claims for

deliberate indifference, and Brown is entitled to statutory immunity. Because they cannot

meet a standard for deliberate indifference, the appellants certainly cannot meet the standard

for negligence.

For these reasons, the circuit court’s summary-judgment order is affirmed.

Affirmed.

THYER and HIXSON, JJ., agree.

Luther Oneal Sutter and Lucien R. Gillham, for appellants.

McDaniel Wolff, PLLC, by: Scott P. Richardson, for separate appellee Kimberly Brown.

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