Harmon v. Kittrell et al

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IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HOT SPRINGS DIVISION
JAMES ANTHONY HARMON 	PLAINTIFF
v. 	Civil No. 6:24-cv-06119-SOH-MEF
DR. ALBERT KITTRELL (Psychiatrist);
SYRNA BOWERS, Director, Arkansas
Community Correction);
WARDEN WALTER WHITE
(Omega Technical Violator Program);
NURSE KELLY AUNSPAGH
(Omega Unit);
DANA HAYNES
(Medical Services Manager, Omega Unit);
WELLPATH LLC 	DEFENDANTS
MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
This is a civil rights action filed under 42 U.S.C. § 1983. Pursuant to the provisions of 28
U.S.C. §§ 636(b)(1) and (3), the Honorable Susan O. Hickey, United States District Judge, referred
this case to the undersigned for the purpose of making a Report and Recommendation. Currently
before the Court is a Motion for Summary Judgment on the Issue of Exhaustion by Defendants
Aunspagh, Haynes, Kittrell, and Wellpath, LLC. (ECF No. 28)
I. 	BACKGROUND
Plaintiff filed his Complaint on September 6, 2024. 	(ECF No. 1). 	Plaintiff is currently
incarcerated in the Arkansas Division of Correction (“ADC”) Pine Bluff Unit, but his claims center
on his time incarcerated in the Arkansas Community Correction (“ACC”) Omega Unit. 	(Id.).
Plaintiff alleges that between January 4, 2024, and July 17, 2024, he was denied medical care by
all named Defendants. 	(Id. at 4). 	Specifically, Plaintiff alleges that upon arrival at the Omega
Unit on January 4, 2024, he was taking 200mg of thorazine and 3mg of lorazepam, which had been
prescribed by his free-world psychiatrist for his long-time mental illness. (Id.). Plaintiff alleges
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he told the infirmary personnel that he was taking these medications and why he was taking these
medications. 	(Id.). 	Based on orders from Defendant Kittrell, the infirmary “cut him off” these
drugs “suddenly and completely.” 	(Id. at 4-5). 	Plaintiff alleges that both thorazine and
benzodiazepines such as lorazepam can cause death if suddenly stopped the way Plaintiff was
forced to stop. 	(Id. at 5). 	Plaintiff alleges he went through “agonizing withdrawal” due to the
sudden stop in his medications. (Id.). He alleges his sleep pattern has been severely disrupted and
his thought patterns were disrupted for months. (Id.). He alleges that, as of the time of filing this
Complaint, he was still having trouble with his memory. 	He alleges he has had bouts of
tachycardia, heart palpitations, and skipped heartbeats. (Id.). He alleges severe mood swings. (Id.
at 7). 	He has also been suffering from numbness and “pins and needles” in his hands and feet
since January 4, 2024. (Id.).
Plaintiff alleges he was told that Defendant Dr. Kittrell was the one who gave the order to
cut off his medications. Defendant Aunspaugh is the administrator of the infirmary and oversees
the medical personnel involved. Defendant Haynes is identified as the medical services manager
in charge of medical services. Plaintiff alleges that Haynes told him his grievance on this matter
was without merit. (Id.). Defendant Bowers is identified as the ACC Director, responsible for all
inmates in ACC facilities and all employees and contractors employed by ACC. (Id.).
Plaintiff proceeds against all Defendants in their individual and official capacities. (Id. at
6). To support his official capacity claim, Plaintiff alleges that he was told by medical personnel
in Omega Unit that “it was the medical policy of ACC to cut me off these medications the way
they did.” (Id. at 6).
Plaintiff seeks compensatory and punitive damages. (Id. at 11). He seeks $1,000,000.00.
(Id.). He seeks 25% of total money awarded in attorney fees. (Id.). He asks for complete medical
evaluations by free-world specialists not employed or retained by the State of Arkansas. (Id.).
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These include a cardiologist and neurologist. 	(Id.). 	He asks that the ACC staff involved be
removed from their positions of authority over inmates and be prevented from working in any
detention facility in the state of Arkansas. 	He asks that all medical personnel involved also be
removed from their positions and prevented from providing medical care to inmates in the State
of Arkansas. (Id.).
On November 20, 2024, Defendant Wellpath LLC filed a Notice of Bankruptcy and a copy
of the Amended Interim Order Enforcing the Automatic Stay entered by the Honorable Alfredo R.
Perez, United States Bankruptcy Judge for the Southern District of Texas, Houston Division, on
November 12, 2024. 	(ECF No. 18). The bankruptcy case number is 24-90533 (ARP). 	In the
Interim Order, the Stay was extended to Non-Debtor Defendants. 	Pursuant to the Bankruptcy
Court’s Order, this case was stayed and administratively terminated on January 7, 2025. (ECF No.
23).
On May 22, 2025, Defendants filed a Status Report on the bankruptcy proceedings. (ECF
No. 24). They explained that the Bankruptcy Court had confirmed the Plan of Reorganization (the
“Plan”) as of May 9, 2025, and that the previously ordered litigation stay had been lifted. (Id.).
See also In re Wellpath Holdings, Inc., No. 24-90533 (Bankr. S.D. Tx. May 1, 2025) (ECF No.
2,596). This Court subsequently ordered that the litigation stay in this case be lifted, and that the
Wellpath Defendants show cause as to the effect of the Plan on Plaintiff’s claims. (ECF No. 26).
The WellPath Defendants filed a response on June 19, 2025, saying that the Plan permanently
enjoins Plaintiff from commencing or continuing any action against WellPath, LLC, and that
Plaintiff had not yet opted out of the third-party releases in the Plan with respect to his individual
capacity claims against Defendants Aunspaugh, Kitrell and Haynes. (ECF No. 31). Plaintiff filed
a Motion to Opt-Out with this Court on July 21, 2025. (ECF No. 36). This Motion was denied,
and the Clerk was directed to immediately forward the Motion to the United States Bankruptcy
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Court for the Southern District of Texas, Houston Division. (Id.). All pro se filings in the Wellpath
Bankruptcy are now being docketed in Wellpath SF Holdco, LLC, Case No. 24-90566 (ARP).
Review of this docket indicates that Plaintiff opted out of the third-party releases contained in the
Wellpath Bankruptcy Plan on July 30, 2025. (Case No. 24-90566, ECF No. 141). Accordingly,
Plaintiff can proceed in this Court for his individual capacity claims against the named Defendant
Wellpath Employees Aunspaugh, Kitrell and Haynes.
Prior to filing their Response to the Show Cause Order, Defendants Aunspaugh, Kitrell,
Haynes and Wellpath LLC filed their Motion for Summary Judgment on the Issue of Exhaustion.
(ECF No. 28). 	They argue that Plaintiff filed only four medical grievances during the relevant
period, and only one of them related to Plaintiff’s mental health medication: Grievance #OM-24-
00299. (ECF No. 29 at 3). Grievance #OM-24-00299 was not, however, appealed to the Deputy
Director of Residential Services as required by grievance policy and was, therefore, not exhausted.
(Id.; ECF No. 30 at 2). Defendants further note that one of his grievances, OM-24-000220, on the
topic of Tylenol administration at one pill call, was found to be with merit but resolved. (Id.).
Plaintiff filed his Response documents on July 21, 2025.0F
1 (ECF Nos. 37, 38, 39). Plaintiff
argues he was “not provided with all necessary forms and instructions” and “did not receive
responses or acknowledgments in a timely manner.” 	(ECF No. 37 at 1). 	Plaintiff argues ACC
staff did not act in accordance with ACC grievance procedure and “in fact did try to stall for time
in hopes I would be transferred to ADC before the process could be completed.” (Id. at 2). He
argues that Defendants’ documents and documents in his possession indicate that Defendants
“toyed with dates, lost grievances, and deliberately tried to manipulate the grievance process, and
violate ACC policy.” (Id. at 2-3). Plaintiff cites to no documents in this statement.
1 Plaintiff filed a Response document on July 7, 2025. In it, he states only that he objects to the
Summary Judgment Motion and will file his answer to this motion as soon as possible. (ECF No.
33).
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In his second Response document, Plaintiff argues that he did file the four grievances
identified by Defendants, he also filed “numerous other medical grievances and grievances of a
non-medical nature.” (ECF No. 38 at 2). He argues that many of these were filed during the time
that Abigail Hudson went on maternity leave, in approximately May 2024. (Id. at 2-3). Plaintiff
argues that the forms provided to him were single page forms that did not have carbon copies to
them. 	(Id. at 4-5). 	Plaintiff argues that these were placed in a grievance box and subsequently
misplaced by staff members filling in for Hudson during her leave. (Id. at 5). Plaintiff does not
cite to any documents for this statement. 	Plaintiff generally disputes the statements concerning
Grievance #OM-24-00299. (Id. at 6). Plaintiff argues that his handwritten date for submitting the
grievance is 5/31/2024, but the document was shown to be received by C. Laginja on 6/13/2024.
He argues this is a clear violation of ACC policy. 	(Id.). 	Plaintiff does not provide cites to the
Exhibits in question. The Court has reviewed Grievance #OM-24-00299 provided by Defendants.
Plaintiff’s statements concerning the dates are correct, but there is no indication that these dates
are in any way relevant to his failure to exhaust this grievance. Nothing on the grievance response
indicates anything other than it was reviewed on the merits. He does not dispute that he failed to
appeal this grievance to the Deputy Director. Plaintiff attached no exhibits to this document.
Plaintiff labels his third Response document “Response to Declaration of Abigail Hudson.”
(ECF No. 39). Plaintiff agrees that she is the Admin Review Officer, but he argues that she was
on maternity leave during the process of Grievance #OM-24-00299 and “only knows what records
were kept by C. Laginja and Lt. Rebecca Strothers in her absence.” (Id. at 1). He disputes her
statement that he only filed four medical grievances. Instead, he repeats his argument that he filed
many other complaints and grievances during her absence, and she has no knowledge of their
“disappearances.” 	(Id. at 1-2). 	Plaintiff argues that video footage will show that he submitted
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several complaints. Plaintiff identifies no dates for said video footage. (Id.). Plaintiff cites to no
documents and no exhibits were attached to this document.
II. 	LEGAL STANDARD
Summary judgment is appropriate if, after viewing the facts and all reasonable inferences
in the light most favorable to the non-moving party, Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986), the record “shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
“Once a party moving for summary judgment has made a sufficient showing, the burden rests with
the non-moving party to set forth specific facts, by affidavit or other evidence, showing that a
genuine issue of material fact exists.” 	National Bank of Commerce v. Dow Chemical Co., 165
F.3d 602, 607 (8th Cir. 1999).
The non-moving party “must do more than simply show that there is some metaphysical
doubt as to the material facts.” Matsushita, 475 U.S. at 586. “They must show there is sufficient
evidence to support a jury verdict in their favor.” National Bank, 165 F.3d at 607 (citing Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)). “A case founded on speculation or suspicion is
insufficient to survive a motion for summary judgment.” Id. (citing Metge v. Baehler, 762 F.2d
621, 625 (8th Cir. 1985)). 	“When opposing parties tell two different stories, one of which is
blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not
adopt that version of the facts for purposes of ruling on a motion for summary judgment.” Scott
v. Harris, 550 U.S. 372, 380 (2007).
III. 	ANALYSIS
A. All Claims Against Wellpath LLC and Official Capacity Claims
Pursuant to Article IX of the Plan of Reorganization, Wellpath, LLC was discharged from
liability by the United States Bankruptcy Court for the Southern District of Texas, Houston
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Division, for all claims that arose prior to November 11, 2024. See In re Wellpath (Bankr. Doc.
Nos. 2596, 2680); see also 11 U.S.C. § Section 524(a)(2) (“[a] discharge in a [Chapter 11
bankruptcy] case ... operates as an injunction against the commencement or continuation of an
action, the employment of process, or an act, to collect, recover or offset any such debt as a
personal liability of the debtor, whether or not discharge of such debt is waived”). 	Plaintiff’s
claims against Wellpath and its employees stem from the quality of medical treatment he
purportedly received from February 2022 through September 5, 2023. 	Accordingly, the
Bankruptcy Court’s Order confirming the Plan of Reorganization forecloses Plaintiff’s claims
against Wellpath. 	These claims should, therefore, be dismissed on that basis. 	Further, a claim
against a Wellpath employee in his or her official capacity is the functional equivalent to a claim
against Wellpath itself. 	See Veatch v. Bartels Lutheran Home, 627 F.3d 1254, 1257 (8th Cir.
2010). 	Plaintiff’s claims against the individual Wellpath Defendants in their official capacities
should also, therefore, be dismissed for the same reason.
B. Individual Capacity Claims Against Aunspaugh, Kitrell, Haynes
The 	Prison 	Litigation 	Reform 	Act 	(“PLRA”) 	mandates 	exhaustion 	of 	available
administrative remedies before an inmate files suit. Section 1997e(a) of the PLRA provides: “[n]o
action shall be brought with respect to prison conditions under section 1983 of this title, or any
other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such
administrative remedies as are available are exhausted.” 42 U.S. C. § 1997e(a).
In Jones v. Bock, 549 U.S. 199 (2007), the Supreme Court concluded that “exhaustion [as
required by the PLRA] is not per se inadequate simply because an individual later sued was not
named in the grievances.” Id. at 219. “[T]o properly exhaust administrative remedies prisoners
must complete the administrative review process in accordance with the applicable procedural
rules.” Id. at 218 (internal quotation marks and citation omitted). The Court stated that the “level
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of detail necessary in a grievance to comply with the grievance procedures will vary from system
to system and claim to claim, but it is the prison’s requirements, and not the PLRA, that define the
boundaries of proper exhaustion.” Id.
The Eighth Circuit Court of Appeals has recognized only two exceptions to the PLRA
exhaustion requirement: (1) when officials have prevented prisoners from utilizing the grievance
procedures, or (2) when the officials themselves fail to comply with the grievance procedures. See
Gibson v. Weber, 431 F.3d 339, 341 (8th Cir. 2005) (explaining a prisoner is only required to
exhaust those administrative remedies that are “available” and any remedies that prison officials
prevent a prisoner from utilizing are not considered available).
There is no evidence in the summary judgment record that the ACC Omega Unit grievance
process was unavailable to Plaintiff. 	He was able to successfully file four medical grievances.
One of them was found to be with merit but resolved; the other three were not appealed to the
Deputy Director. Thus, he had access to the grievance forms and the process. He states that he
filed other grievances that “disappeared” but provides no documentation that he did so. Nor does
he provide any detail as to dates or what was alleged in the missing grievances. Instead, Plaintiff
points only to the fact that Administrative Review Officer was on maternity leave for an
unidentified amount of time starting in approximately May 2024, and two other individuals
covered her work during the leave. Even assuming arguendo that this argument has any relevance
to the lack of exhausted grievances, the Court notes that Plaintiff alleges he was denied his mental
health medications starting in early January 2024. Plaintiff identifies no reason why he could not
have filed medical grievances in the five months prior to the Administrative Review Officer’s
maternity leave in May 2024. Finally, Plaintiff alleges that the ACC violated its policies, but states
only that there was a delay between when he signed the grievance on May 31, 2024, and when the
office indicated they received the grievance on June 13, 2024. 	Further, the grievance was
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addressed on the merits, so any delay clearly did not cause any procedural issues with the
processing of the grievance. Thus, Plaintiff has provided no objective evidence that he exhausted
his administrative remedies concerning his mental health medication. 	He has only provided
speculative subjective beliefs as to what happened to “disappeared” grievances. The Court cannot
consider an inmate’s speculative subjective beliefs concerning exhaustion. 	See Lyon v. Vande
Krole, 305 F.3d 806, 809 (8th Cir. 2002) (a court is not permitted “to consider an inmate’s merely
subjective beliefs, logical or otherwise, in determining whether administrative procedures are
‘available.’”).
IV. 	CONCLUSION
Accordingly, it is RECOMMENDED that the Motion for Summary Judgment on the Issue
of Exhaustion by Defendants Aunspagh, Haynes, Kittrell, and Wellpath, LLC (ECF No. 28) be
GRANTED, Plaintiff’s claims against them be DISMISSED WITH PREJUDICE, and these
Defendants TERMINATED as Defendants in this case. 	The claims against ACC Defendants
White and Bowers remain for further review.
Referral Status: This case should remain referred for all matters not recommended for
dismissal in this Report and Recommendation.
The parties have fourteen (14) days from receipt of the Report and Recommendation
in which to file written objections pursuant to 28 U.S.C. § 636(b)(1). The failure to file timely
objections may result in waiver of the right to appeal questions of fact. 	The parties are
reminded that objections must be both timely and specific to trigger de novo review by the
district court.
DATED this 9th day of January 2026.
/s/
Mark E. Ford
HON. MARK E. FORD
UNITED STATES MAGISTRATE JUDGE
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