Butcher v. Martin et al

1
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
EL DORADO DIVISION
JOHN R. BUTCHER 	PLAINTIFF
v. 	Civil No. 1:23-cv-01077-SOH-BAB
SHERIFF LEROY MARTIN;
DR. DARRELL ELKINS (Facility Doctor);
JAIL ADMINISTRATOR GENE SIEGER;
ALIYAH ROSE;
CAPTAIN JERRY MANESS;
OFFICER ROGERS;
OFFICER GUICE;
OFFICER WILSON;
SGT. STEPHANIE SINGLETON
(All of Columbia County Detention Center) 	DEFENDANTS
MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
This is a civil rights action filed pursuant to 42 U.S.C. § 1983. Pursuant to the provisions
of 28 U.S.C. § 636(b)(1) and (3), the Honorable Susan O. Hickey, Chief United States District
Judge, 	referred 	this 	case 	to 	the 	undersigned 	for 	the 	purpose 	of 	making 	a 	Report 	and
Recommendation. Currently before the Court are Motions for Summary Judgment by Defendants
Martin, Sieger, Rose, Maness, Rogers, Guice, Wilson and Singleton (“County Defendants”) (ECF
No. 66), and Defendant Elkins (ECF No. 73).
I. BACKGROUND
Plaintiff is currently incarcerated in the Arkansas Division of Correction (“ADC”) North
Central Unit. His Complaint, however, centers on the 35 days he was incarcerated in the Columbia
County Detention Center (“CCDC”) awaiting transfer to the ADC. 	(ECF No. 1). 	Plaintiff was
Case 1:23-cv-01077-SOH-BAB Document 91 Filed 01/23/25 Page 1 of 23 PageID #:
<pageID>

2
convicted on June 22, 2023. (Id. at 2). Plaintiff was booked into the CCDC on June 22, 2023, and
transferred to the ADC on July 27, 2023. (ECF No. 66-1).
Plaintiff filed his initial Complaint on July 28, 2023. 	(ECF No. 1). 	That same day, the
Court entered an Order directing Plaintiff to submit an Amended Complaint to correct deficiencies
in his initial Complaint. (ECF No. 3). Plaintiff submitted his Amended Complaint on August 31,
2023. (ECF No. 14). Plaintiff raises three claims in his Amended Complaint.
For his first claim, Plaintiff alleges that he was denied medical care by Defendants Martin,
Sieger, Maness and Elkins from his intake into CCDC through his transfer to the ADC. (Id. at 6.).
He alleges he brought all of his prescribed medication with him for intake, but the medications
were taken away per CCDC policy. (Id.). Plaintiff does not provide a comprehensive list of his
prescribed medications. 	He alleges, however, that he was denied his “Levemir, Victoza, and
Metformin 1000mg.”0F
1 (Id.). He further alleges he was denied pain medication for his orthopedic
issues, which he states include a torn meniscus in his knee, osteoarthritis, bursitis, tendonitis and
gout. 	(Id. at 6-7). 	He alleges he was also denied unidentified blood pressure and thyroid
medications. (Id. at 7). Plaintiff alleges the facility doctor “did not show up for nine (9) days.”
(Id. at 6). Plaintiff alleges he called the control booth and told them his sugar was high. (Id.). He
was taken to the med room and his sugar was “400 stroke range.” (Id.). He alleges he was given
a shot and he took his metformin, but was denied all other medication. (Id.).
He alleges he suffered two seizures in a week and was taken to the emergency room on
July 6, 2023, where the Dr. Phillip Pace, M.D., told him he should “take all my meds or I would
1 Levemir is a brand of human insulin. 	Victoza is a GLP-1 Receptor agonist used for obesity.
Metformin is indicated for treatment of Type 2 diabetes. 	www.pdr.net (last accessed Jan. 15,
2025).
Case 1:23-cv-01077-SOH-BAB Document 91 Filed 01/23/25 Page 2 of 23 PageID #:
<pageID>

3
be back to see him with another seizure.” (Id. at 7). Plaintiff proceeds against Defendants in their
official and individual capacities for this claim. 	(Id.). 	As his official capacity claim, Plaintiff
alleges that CCDC policy requires that Defendant Elkins, the facility medical doctor, must approve
any medication before an inmate can receive that medication. (Id.). Plaintiff alleges that Elkins
denied him the medications prescribed by “licensed reputable doctors” out of anger, including
those prescribed by the emergency room doctor, and the CCDC Defendants named for this claim
failed to take corrective action. (Id.).
For his second claim, Plaintiff alleges that the CCDC is “infested with black mold in the
ceilings, showers.” 	(Id. at 8). 	He alleges this is unsafe and unsanitary. 	(Id.). 	Plaintiff names
Defendants Martin, Sieger, and Maness and Elkins for this claim. 	Plaintiff alleges Defendant
Martin asked the Quorum Court asking for a new jail to be built. (Id.). 	He further alleges that
exposure to the mold either exacerbated or caused him to suffer from severe sinusitis and seizure-
like activity. (Id.). Plaintiff alleges Dr. Pace, the emergency room doctor, diagnosed him with “
‘a severe sinus infection’ being ‘suspected bacterial acute frontal sinusitis seizure like activities’”
on July 6, 2023. 	(Id.). 	(Id.). 	Plaintiff proceeds against all Defendants in their official and
individual capacities. 	(Id. at 9). 	As his official capacity claim, Plaintiff alleges all the named
Defendants were aware of the hazardous conditions, but continued to subject him to them. (Id. at
9).
For his third claim, Plaintiff alleges that the food provided by CCDC was unsanitary and
provided no nutrition. (Id. at 9). Plaintiff names Defendants Martin, Sieger, Maness and Elkins
for this claim. (Id.). Plaintiff alleges that food was left sitting on a cart in the hallway in an open
sack, which exposed the food to mold, flies, and bugs. Plaintiff does not allege that he found any
insects or other foreign objects in his food. 	(Id. at 10. 	He further alleges the food was served
Case 1:23-cv-01077-SOH-BAB Document 91 Filed 01/23/25 Page 3 of 23 PageID #:
<pageID>

4
“stale and hardened from sitting on the cart.” 	(Id.). 	Finally, Plaintiff alleges the food was not
nutritional. (Id.). He alleges the food consisted of “two wieners, two pieces of bread, and three
vanilla wafers.” 	(Id.). 	He describes the diabetic tray served each evening as “beans, rice, corn
bread, and carrots.” 	(Id.). 	Plaintiff does not allege that he lost weight or suffered any adverse
physical issues from the alleged lack of dietary nutrition. Plaintiff proceeds against all Defendants
in their official and individual capacities. (Id.). As his official capacity claim, he alleges “it is a
widespread practice a CCDC a custom in which the CCDC has allowed to continue even when
inmates complain about it and even though they knew it was wrong.” 	(Id.). 	Plaintiff seeks
compensatory, punitive, and other damages. 	(Id. at 11). 	Plaintiff does not identify any non-
monetary damages.
The County Defendants filed their Motion for Summary Judgment on July 9, 2024. (ECF
Nos. 66, 67, 68). They argue summary judgment in their favor because there is no evidence of
deliberate indifference as to Plaintiff’s medical care. 	(ECF No. 67 at 4-10). 	They argue the
conditions of confinement claims must fail because there is no evidence of an objectively serious
condition of confinement as to the black mold claim. (Id. at 10-19). Finally, they argue the food
claim should be dismissed. 	(Id. at 19).1F
2 	They argue the food provided in CCDC meets the
nutritional requirements of the Arkansas Jail Standards. (Id. at 20). Further, even if a bug or other
foreign object did find its way into Plaintiff’s food, this does not amount to a constitutional
violation. (Id. at 20-22).
Defendant Elkins filed his Motion for Summary Judgment on July 17, 2024. (ECF Nos.
73, 74, 75). 	He states he visits each jail once or twice a week. 	(ECF No. 74 at 3). 	He argues
2 Defendants also address a commissary claim that is not present in the Amended Complaint. (ECF
67 at 23).
Case 1:23-cv-01077-SOH-BAB Document 91 Filed 01/23/25 Page 4 of 23 PageID #:
<pageID>

5
Plaintiff filed only one Medical Call in CCDC, and this was for a boil or spider bite on his arm.
(Id.). Defendant Elkins saw him for this on July 1, 2023, and prescribed meloxicam. (Id.). This
was the only time he saw Plaintiff. (Id.). He denies that he told CCDC staff to “lock up” Plaintiff’s
medication. 	(Id.). 	Instead, it is the policy of CCDC that the facility must be able to verify the
prescription through a pharmacy or medical professional. (Id. at 3-4). He states he ordered and
renewed prescriptions for Plaintiff between July 1, 2023 and July 27, 2023. (Id. at 4). He states
he was not given any grievances concerning Plaintiff’s medical care, and was “not aware of any
medical issues he was having or whether or not he was receiving all of his prescribed medications.”
(ECF No. 74-1 at 2). 	Finally, he argues Plaintiff has provided no evidence of any harm to his
health from any alleged denial of care. (ECF No. 74 at 4). Elkins provides a copy of the medical
call concerning the spider bite or boil. (ECF No. 74-1 at 4). The date of the call is not available
on the copy provided to the Court. (Id.). In the medical call, Plaintiff states:
I have written numerous medical request to see medical and yet they say the Doctor
has not been here. Policy states: inmates/detainee’s will be seen once a week, and
yet non medical personnel are refusing me meds and telling me I can not have
certain medications. 	I have a spider bite or bowl [sic] under my arm and I need
help from medical personnel.”
(Id.).
Elkins also provided a patient profile report for Plaintiff which is labelled ***Chronic***
and indicates he was prescribed Amoxicillin/K Clav, ibuprofen, melatonin, levothyroxine,
lisinopril, metformin, and meloxicam. 	(ECF No. 74-1 at 5-6). 	The dates for the dispensing of
these drugs, at least on this document, occurred in July. (Id.). Finally, Defendant Elkins correctly
argues that, as a third-party medical contractor, he has no liability as to Plaintiff’s conditions of
confinement claims. (ECF No. 74 at 4).
Case 1:23-cv-01077-SOH-BAB Document 91 Filed 01/23/25 Page 5 of 23 PageID #:
<pageID>

6
On July 19, 2024, the County Defendants submitted a Motion to Adopt and Incorporate
Defendant Elkins’ Brief In Support of Motion for Summary Judgment. (ECF No. 77). This Motion
was granted on July 22, 2024. (ECF No. 78).
On July 11, 2024, and July 18, 2024, the Court entered Orders directing Plaintiff to file his
Responses to the Motions for Summary Judgment. (ECF No. 72, 76). Both of these Order advised
Plaintiff that he must:
file a separate Statement of Facts in Dispute which lists: (a) any disagreement you
have 	with 	the 	numbered 	factual 	statements 	contained 	in 	the 	Statement 	of
Undisputed Facts filed by the Defendants;and (b) any other disputed facts that must
be resolved at a hearing or trial. If you dispute any facts contained in the Defendants
numbered Statement of Undisputed Facts, you must identify the number of the
paragraph you dispute and you must explain why you dispute the statement.
(Id.). 	Plaintiff was further advised that “[i]f you intend to rely on any documents that were
previously filed with the Court, you must specifically refer to the documents by the ECF No. and
page number, for example ECF No. 8 at p. 2. The Court will not look through the entire case file
to locate a document supporting your factual statements.” (Id.).
Plaintiff then filed eight documents comprising a total of 653 pages as his Responses,
including an 85-page affidavit. (ECF Nos. 81-88). After the eighth document was filed, the Court
entered an Order advising Plaintiff that he was not permitted to file any further submissions
concerning the Motions for Summary Judgment unless directed to do so by the Court. (ECF No.
90). Although three of the documents are labelled as a Statement of Disputed Facts or a Response
to a Statement of Facts, (ECF Nos. 82, 83, 86), none of them address the numbered factual
statements in any Defendants Statement of Undisputed Facts as ordered by the Court and required
by the Local Rules of Civil Procedure. Also largely missing from all of the eight documents are
identifiable citations to attached exhibits or other documents in the summary judgment record.
Case 1:23-cv-01077-SOH-BAB Document 91 Filed 01/23/25 Page 6 of 23 PageID #:
<pageID>

7
Additionally, several of the documents contain no exhibits whatsoever. In his eight documents,
Plaintiff repeats — at length — his Complaint claims in these eight documents. He also places
considerable emphasis on the fact that Defendant Elkins is an APN (Advanced Practice Nurse)
and is required by law to be practicing only under the supervision of a licensed medical doctor.
The Court will now address each of Plaintiff’s eight documents. Document 81 is labelled
“Plaintiff’s Response to Separate Defendants Darrell Elkin Motion for Summary Judgment.” No
factual exhibits are attached. (Id.). Plaintiff cites to ECF No. 49-1, Interrogatory No. 1 and 2. (Id.
at 3-4). ECF No. 49 was filed in Response to one of Plaintiff’s Motions to Compel. Plaintiff notes
the interrogatories show that Elkins is a contractor with the jail and admits that he only saw
Plaintiff once during his incarceration there. 	(ECF No. 81 at 3). 	He further notes the
interrogatories show that Plaintiff admits he is not a doctor, and was not working under a medical
doctor at CCDC.2F
3 (Id. at 4). Plaintiff makes reference to other documents as exhibits, but again,
there are no exhibits attached to Document 81.
Document 82 is labelled “Statement of Disputed Facts.” No factual exhibits are attached
and no ECF cites are used.
Document 83 is labelled “Plaintiff’s Response to Separate Defendants Darell Elkin
Statement of Undisputed Material Facts.” Plaintiff attaches 72 pages of exhibits to ECF No. 83,
but provides absolutely no exhibit cites in his Response. 	As Plaintiff was advised in the Order
3 Defendant Elkin’s response to the interrogatory states his is an “advanced healthcare practitioner
with a Doctorate in Nursing Practice (DNP); I have a Masters in Physician Assistant Studies with
National Certification; a Registered Nurse Practitioner (RM), a Bachelor of Science in Nursing
(BSN), a Bachelor of Science Education with emphasis in Speech Therapy (BSE), and an
Associate Degree in Abnormal Psychology (AD). (ECF No. 49-1 at 2).
Case 1:23-cv-01077-SOH-BAB Document 91 Filed 01/23/25 Page 7 of 23 PageID #:
<pageID>

8
directing his Response, the Court will not sift through documents to find support for his factual
allegations.
Document 84 is labelled “Plaintiff’s Response to CCDC Defendants and Separate
Defendants Motion for Summary Judgment.” 	The Response is 21-pages long with an 85-page
affidavit attached. 	(ECF No. 84-1). 	Exhibits are embedded in this Affidavit. (Id.). 	In the
Response, Plaintiff makes reference to the following exhibit cites:
• 	“(See) Exhibits and /List of medications ordered by UAMS South” (ECF No. 84-1
at 6).;
• 	“(See) Exhibit and /meds medications ordered June 6th, 2023 by UAMS South
(PCP’s); (Id. at 7);
• 	(See) 	Exhibits 	Medical 	medication 	logs 	and 	insulin 	logs 	from 	previous
incarcerations; (See Exhibit) /Past incarceration medication logs. (Id. at 8).
• 	(See again) Exhibit / (RAF) Environmental Testing and Consulting Services (Id. at
16);
• 	(See) Exhibit/ Banner News in February Article Based on the Quorum Court
meeting concerning the condition of the jail (Id. at 18.
A document labelled Exhibit One at ECF No. 84-1 at pages 15-16 is a printout dated June
8, 2023. It describes the list as “Changes to your medication list.” (Id.). The source of this list is
not indicated on the document. The items included on this list include diabetic testing and injection
supplies, 	insulin, 	atorvastatin 	(Lipitor), 	benzonatate,3F
4 	doxycycline, 	gabapentin, 	ibuprofen,
meloxicam, metformin, penicillin, and a ProAir HFA inhaler containing albuterol, to be used as
4 Cough suppressant. https://www.webmd.com/drugs/2/drug-14257/benzonatate-oral/details (last
accessed Jan. 14, 2025).
Case 1:23-cv-01077-SOH-BAB Document 91 Filed 01/23/25 Page 8 of 23 PageID #:
<pageID>

9
needed for wheezing or shortness of breath. 	(Id.). 	No other medical information, such as any
diagnosis, are included. Another medication list is attached at ECF No. 84-1 at pages 18-19. It
indicates the list is current as of January 25, 2023. (Id.). This list includes atorvastatin (Lipitor),
benzonatate, blood sugar diagnostic strip, doxycycline, gabapentin, Levemir insulin, metformin,
and Pro Air HFA. (Id.). 	Finally, a list dated May 24, 2022, includes atorvastatin, blood sugar
diagnostic strips, doxycycline, gabapentin, levothyroxine,4F
5 liraglutide, lisinopril,5F
6 meloxicam, and
tramadol. (ECF No. 84-1 at 17-18).
Although not cited by Plaintiff in his Response, records from the Magnolia Regional
Medical Center emergency room and dated July 6, 2023, are attached directly after the medication
lists cited above. (ECF No. 84-1 at 22-27). They indicate he was seen for “suspected bacterial
acute frontal sinusitis” and “seizure like activity.” (Id. at 21). 	Plaintiff received bloodwork and
CT scans and was diagnosed with sinusitis. (Id. at 21-22). He was prescribed Augmentin. (Id.).
Augmentin is a combination of amoxicillin and clavulanate potassium used for the treatment of
sinusitis and other infections. See https://accessdata.fda.gov (last accessed Jan. 14, 2025).
The Court could not locate any prior incarceration medical records attached to this
document. There, are, however, medication logs for Plaintiff’s incarceration in CCDC at issue in
this case, although there seem to be duplicate pages as well as missing pages, and the pages are
submitted out of date order at times. (ECF No. 84-1 at 28-84). It appears that Plaintiff received
ibuprofen and metformin in the morning. (Id.). He received ibuprofen, metformin, and melatonin
at night. (Id.). Meloxicam was added to the morning medication on July 5, 2023. (Id. at 67). A
peanut butter sandwich was added to the evening prescription on July 5, 2023. 	(Id. at 68).
5 Indicated for treatment of hypothyroidism. www.pdr.net (last accessed Jan. 15, 2025).
6 Indicated for treatment of hypertension. www.pdr.net (last accessed Jan. 15, 2025).
Case 1:23-cv-01077-SOH-BAB Document 91 Filed 01/23/25 Page 9 of 23 PageID #:
<pageID>

10
Augmentin appears July 17, 2023. 	(Id. at 42). 	Amox/K Clav (in place of the brand name
Augmentin) appears in July as well. (Id. at 30, 32, 36, 37, 40, 41). Lisinopril and levothyroxine
are first mentioned on July 27, 2023, and are noted to be out of stock. (Id. at 28).
The Court could find no exhibits concerning environmental testing or any news articles
attached to ECF No. 84.
Document 85 is labelled as “Plaintiff’s Response to CCDC Defendants and Separate
Defendants Motion for Summary Judgment.” 	Plaintiff cites to a medication list and past
incarceration insulin medication list which are not attached to this document. (Id. at 6, 7, 8). He
cites to a news article concerning the Quorum court which is attached, but illegible. (Id. at 42).
He cites to an environmental testing and consulting services document which appears to be the
same exhibit as labelled 3 Major Type of Mold. (Id. at 16). Plaintiff cites to an exhibit entitled “3
Major types of Mold in Homes and Businesses.” (Id. at 12). Review of this document indicates
it is a printout of a website article discussing types of mold. (Id. at 48-95). Plaintiff cites to an
affidavit of Ken Mullen. 	(Id. at 14). 	This affidavit states that he is the owner and estimator of
Arkansas Mold and Water. (Id. at 43-45). He states that his company inspected CCDC in March
2023. 	His affidavit states that the building was found to be in good repair, with a few
improvements and repairs needed, but “it was safe for people to live.” (Id. at 44). He states that
no toxic mold was found, only common surface growth in the showers, which could be addressed
with a mild detergent. (Id. at 44-45). He further stated the air quality of the facility was good.
(Id. at 44).
Document 86 is labelled “Plaintiff’s Response to Separate Defendant Darrell Elkin
Statement of Undisputed Material Facts.” This document contains no attached exhibits or ECF
cites.
Case 1:23-cv-01077-SOH-BAB Document 91 Filed 01/23/25 Page 10 of 23 PageID
#: <pageID>

11
Document 87 is labelled as “Plaintiff’s Response to CCDC Defendants and Separate
Defendants Motion for Summary Judgment.” This document cites to a medication list ordered by
UAMS doctors on June 6, 2023, and a report from emergency room doctor Phillip Pace on July 6,
20223. (Id. at 6, 7). He cites to past incarceration insulin logs. (Id. at 8). There are no medical
exhibits attached to this document. Plaintiff cites to the document entitled “3 Major Classifications
of the Type of Mold in Homes and Businesses.” 	(Id. at 12). He cites to the environmental and
testing and consulting services document. (Id. at 16). He cites to the illegible quorum court news
article. (Id. at 18). All three of these exhibits were previously discussed with Document 85.
Document 88 is labelled Plaintiff’s Response to CCDC Defendants and Separate
Defendants Motion for Summary Judgment.” Plaintiff cites to one exhibit described as being from
Dr. Phillip Pace, M.D.. (Id. at 10). 	This exhibit is attached and indicates that Plaintiff was
prescribed Augmentin on July 6, 2023, at the Magnolia Regional Medical Center emergency room.
(ECF No. 88-1).
The Court notes that Plaintiff sought and received a subpoena for his medical records for
the ADC well in advance of the submission of both Motions for Summary Judgment. (ECF Nos.
55, 58). Over one thousand pages of medical records were filed with the Court and provided to
Plaintiff. (ECF No. 61, 61-1). Despite this, the Court found no ECF cites to ADC medical records
in any of his eight Response documents.
The County Defendants filed their Reply on August 28, 2024. (ECF No. 89). They argue
Plaintiff has failed to meet proof with proof in his many Responses. 	(Id. at 3-4). 	Instead, they
argue Plaintiff relies upon “his own affidavit with lots of allegations, the vast majority
unsupported, speculative, or general conclusory statements. These are improper and self-serving,
and it is not an admissible form of evidence.” 	(Id. at 5). 	Specifically, they argue the list of
Case 1:23-cv-01077-SOH-BAB Document 91 Filed 01/23/25 Page 11 of 23 PageID
#: <pageID>

12
grievances provided in Plaintiff’s affidavit are largely inadmissible and too conclusory and general
to survive summary judgment. (Id. at 7). They argue Plaintiff failed to provide any proof that any
Defendant was aware of a risk to Plaintiff’s health and safety or that any Defendant disregarded
said risk. (Id.).
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).
Case 1:23-cv-01077-SOH-BAB Document 91 Filed 01/23/25 Page 12 of 23 PageID
#: <pageID>

13
III. ANALYSIS
A. 	Failure to Comply with Local Rules
Although Plaintiff submitted three separate documents labelled as Statements of Disputed
Facts, none of them were in compliance with either the Court’s Order or the Local Rules. Local
Rule 56.1(a) requires any party moving for summary judgment to submit a separate statement of
undisputed material facts. 	Local Rule 56.1(b) requires the non-moving party opposing the
summary judgment motion to file a separate statement of disputed facts. 	Pro se inmates are
advised of this requirement in the Order directing them to file a summary judgment response. Pro
se inmates are also advised of this requirement in the District’s Prisoner Litigation Guide, which
contains an example to help them understand the concept of using the same paragraph numbering
as that used by the moving party in their own statement of disputed facts.
Due to Plaintiff’s failure, both Defendants’ Statement of Facts are deemed admitted
pursuant to Local Rule 56.1(c). In determining whether there are genuine disputes of material fact,
however, the Court has also considered the allegations set forth in Plaintiff’s verified Amended
Complaint. A verified complaint is the equivalent of an affidavit for summary judgment purposes.
See, e.g., Roberson v. Hayti Police Dep’t., 241 F.3d 992, 994-95 (8th Cir. 2001). “[A] complaint
signed and dated as true under penalty of perjury satisfies the requirements of a verified complaint
. . ..” Id. As the Court in Roberson pointed out, “[a]lthough a party may not generally rest on his
pleadings to create a fact issue sufficient to survive summary judgment, the facts alleged in a
verified complaint need not be repeated in a responsive affidavit to survive the summary judgment
motion. Id. The Court will, therefore, “piece[] together [Plaintiff’s] version of the facts from the
verified complaint . . ..” McClanahan v. Young, No. 4:13-cv-04140, 2016 WL 520983, *1 (D.S.D.
Feb. 5, 2016).
Case 1:23-cv-01077-SOH-BAB Document 91 Filed 01/23/25 Page 13 of 23 PageID
#: <pageID>

14
B. 	Denial or Delay of Medical Care
In prisoner litigation, courts in the Eighth Circuit analyze denial of medical care claims for
all inmates under the deliberate indifference standard of the Eighth Amendment. See e.g., Morris
v. Cradduck, 954 F.3d 1055, 1058 (8th Cir. 2020) (pretrial detainee has the same rights to medical
care under the Due Process Clause as an inmate has under the Eighth Amendment).
The deliberate indifference standard includes “both an objective and a subjective
component: ‘The [Plaintiff] must demonstrate (1) that [he] suffered [from] objectively serious
medical needs and (2) that the prison officials actually knew of but deliberately disregarded those
needs.’” Jolly v. Knudsen, 205 F.3d 1094, 1096 (8th Cir. 2000) (quoting Dulany v. Carnahan, 132
F.3d 1234, 1239 (8th Cir. 1997)).
To show that he suffered from an objectively serious medical need Plaintiff must show he
“has been diagnosed by a physician as requiring treatment” or has an injury “that is so obvious
that even a layperson would easily recognize the necessity for a doctor’s attention.” 	Schaub v.
VonWald, 638 F.3d 905, 914 (8th Cir. 2011) (citation omitted).
For the subjective prong of deliberate indifference, “the prisoner must show more than
negligence, more even than gross negligence, and mere disagreement with treatment decisions
does not give rise to the level of a constitutional violation.” Popoalii v. Correctional Med. Servs,
512 F.3d 488, 499 (8th Cir. 2008) (citation omitted). “Deliberate indifference is akin to criminal
recklessness, which demands more than negligent misconduct.” Id.
It is well settled that “[a] prisoner’s mere difference of opinion over matters of expert
medical judgment or a course of medical treatment fail[s] to rise to the level of a constitutional
violation.” Nelson v. Shuffman, 603 F.3d 439, 449 (8th Cir. 2010) (internal citation omitted). An
“inmate must clear a substantial evidentiary threshold to show the prison’s medical staff
Case 1:23-cv-01077-SOH-BAB Document 91 Filed 01/23/25 Page 14 of 23 PageID
#: <pageID>

15
deliberately disregarded the inmate’s needs by administering inadequate treatment.” Id. (internal
citations omitted). 	Despite this, issues of fact exist when there is a question of whether or not
medical staff exercised independent medical judgment, and whether the decisions made by medical
staff fell so far below the reasonable standard of care as to constitute deliberate indifference. See
Smith v. Jenkins, 919 F.2d 90, 93 (8th Cir. 1990).
Deliberate indifference may also be manifested by “prison guards in intentionally denying
or delaying access to medical care or intentionally interfering with the treatment once prescribed.”
Estelle, 429 U.S. at 104–05. However, the “Constitution does not require jailers to handle every
medical complaint as quickly as each inmate might wish.” Jenkins v. County of Hennepin, Minn.,
557 F.3d 628, 633 (8th Cir. 2009). “A prisoner alleging a delay in treatment must present verifying
medical evidence that the prison officials ‘ignored an acute or escalating situation or that [these]
delays adversely affected his prognosis[,]’” Holden v. Hirner, 663 F.3d 336, 342 (8th Cir. 2011)
(citations omitted), unless the need for medical attention is obvious to a layperson, in which case
the plaintiff need not submit verifying medical evidence to show the detrimental effects of delay.
See Schaub, 638 F.3d at 919 (citing Roberson v. Bradshaw, 198 F.3d 645, 648 (8th Cir. 1999));
Aswegan v. Henry, 49 F.3d 461, 464 (8th Cir. 1995); cf. Boyd v. Knox, 47 F.3d 966, 969 (8th Cir.
1995) (“noting that a delay in treatment, coupled with knowledge that an inmate is suffering, can
support a finding of an Eighth Amendment violation”).
The objective medical information from all parties is curiously sparse concerning this
claim. Despite months of discovery, hundreds of pages of submissions, and his ADC subpoena
results, Plaintiff has yet to provide the Court with any documents providing formal diagnoses of
his medical conditions by medical professionals, with the exception of sinusitis. His allegations
in his verified complaint, as well as his submitted medication lists and the Magnolia emergency
Case 1:23-cv-01077-SOH-BAB Document 91 Filed 01/23/25 Page 15 of 23 PageID
#: <pageID>

16
room visit on July 6, 2023, however, permit inferences to be made concerning his medical
conditions. 	Specifically, that Plaintiff has been diagnosed with Type 2 diabetes, hypertension,
hypothyroidism, and various orthopedic issues which can be painful. He also repeatedly alleges
he had seizures while in CCDC due at least in part to the denial of his medications. These seizures,
along with suspected sinusitis, were the stated reason for the emergency room visit.
The County Defendants provide no information as to what medications Plaintiff brought
to intake with him to CCDC. The County Defendants attached a copy of their policy indicating
that detainee health screening on intake should include asking what medication is currently being
taken. (ECF No. 66-2). This screening information is not provided in their Statement of Facts or
elsewhere in their Motion for Summary Judgment exhibits. 	In their Statement of Facts, they
indicate there can be a delay in providing medication if the facility is unable to verify a prescription
through a pharmacy or medical professional. (ECF No. 69 at 2). They do not, however, identify
any particular difficulty in verifying Plaintiff’s prescriptions.
The County Defendants indicate that by June 24, 2023, two days after he was booked into
the facility, Plaintiff started receiving melatonin, ibuprofen, and metformin. (Id.). He was given
these ibuprofen and metformin twice daily, and melatonin at night. (Id. at 2-5). On July 4, 2023,
a peanut butter sandwich was added to his bedtime medication routine. (Id. at 5). On July 5, 2023,
meloxicam was added to the morning medications, 4 days after it was prescribed by Elkins. (Id.
at 5). On July 8, 2023, he received Tylenol in addition to the other pain medications. (Id. at 6).
Metformin was occasionally declined. 	(See, e.g. Id. at 7, 8, 9). 	On July 14, 2023, Augmentin-
antibiotic was added 9 days after it was prescribed for Plaintiff at the emergency room for sinusitis.
(Id. at 8). Augmentin is not noted again until July 17, 2023. (Id. at 8). Amox/K Clav antibiotic
was given daily from July 18, 2023, through July 24, 2023. (Id. at 9-12). Thus, it is not clear if
Case 1:23-cv-01077-SOH-BAB Document 91 Filed 01/23/25 Page 16 of 23 PageID
#: <pageID>

17
Plaintiff actually received the 10-day course of antibiotic prescribed at the emergency room while
in CCDC custody. Lisinopril and levothyroxine are not referenced until July 27, 2023, the day of
his transfer to the ADC. (Id. at 13). He did not receive the drugs that day because they were noted
to be out of stock. (Id.). There is no reference to insulin or checking of blood sugar in the County
Defendants’ Statement of Facts. 	No objective documentation is provided to explain why some
medications were never given, others were delayed, and others may have not been administered as
prescribed.
Defendant Elkins’ exhibits are both short and troubling. 	In his Motion for Summary
Judgment, he argues that he was not aware that Plaintiff was having any issues in receiving his
medication. He describes Plaintiff’s single medical call as being solely for a spider bite or boil.
Yet, in that medical call Plaintiff clearly states:
I have written numerous medical request to see medical and yet they say the Doctor
has not been here. Policy states: inmates/detainee’s will be seen once a week, and
yet non medical personnel are refusing me meds and telling me I can not have
certain medications. 	I have a spider bite or bowl [sic] under my arm and I need
help from medical personnel.
(ECF No. 74-1 at 4). The patient profile submitted by Elkins lists Amox/Clav K with a dispensing
date of July 12, ibuprofen and melatonin with a dispensing date of July 15, levothyroxine and
lisinopril with a dispensing date of July 24, metformin with a dispensing date of July 27, and
Meloxicam with a dispensing date of July 2. (ECF No. 74-1 at 5-6). These records do not match
the administration dates in the County Defendants Statement of Facts. The Court notes there are
also other dates listed as Origin dates for these medications. None of these dates are explained by
Elkins, and they do not appear to match up with the dates in the County Defendants Statement of
Facts either. 	Although Defendant Elkins states he reviewed Plaintiff’s records and prescribed
medication, he does not state when or why he did so. Nor does anything in Elkins’ submissions
Case 1:23-cv-01077-SOH-BAB Document 91 Filed 01/23/25 Page 17 of 23 PageID
#: <pageID>

18
for this case support the inference that Defendant Elkins exercised his independent medical
judgment as to any of Plaintiff’s alleged conditions.
The Eighth Circuit has made it clear that the denial or delay of prescription medications to
an inmate can constitute deliberate indifference to serious medical needs. 	Presson v. Reed, 65
F.4th 357 (8th Cir. 2023); Dadd v. Anoka County, 827 F. 3d 749 (8th Cir. 2016); Johnson–El v.
Schoemehl, 878 F.2d 1043, 1055 (8th Cir. 1989) (“Delay in the provision of treatment or in
providing examinations can violate inmates' rights when the inmates' ailments are medically
serious or painful in nature.”). 	Here, Plaintiff has alleged serious medical needs in his verified
Amended Complaint, and has provided objective evidence of prescribed medications for those
serious medical needs. Defendants, on the other hand, have provided evidence which conflicts not
only with Plaintiff’s evidence, but with that of the other Defendants. Further, some of the evidence
provided, particularly that of Defendant Elkins, supports Plaintiff’s allegations that his access to
his prescription medications was denied or delayed. Finally, Plaintiff alleged that he suffered from
seizures or seizure-like activity due at least in part to the denial of medications.
Thus, despite both sets of Defendants’ Statement of Facts being deemed admitted, neither
the County Defendants or Elkins have met their burden to show that there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a matter of law. 	Making all
reasonable inferences in the light most favorable to the non-moving party, as the Court must,
genuine issues of material fact remain as to the administration of Plaintiff’s prescription
medications. Summary judgment as a matter of law is not appropriate at this time for his delay
and denial of medical care claim.
Case 1:23-cv-01077-SOH-BAB Document 91 Filed 01/23/25 Page 18 of 23 PageID
#: <pageID>

19
C. 	Conditions of Confinement
The County Defendants have met their burden of proof, however, concerning Plaintiff’s
conditions of confinement claims as to “toxic mold” and the food service at CCDC. “[W]hen the
State takes a person into its custody and holds him there against his will, the Constitution imposes
upon it a corresponding duty to assume some responsibility for his safety and general well-being.”
County of Sacramento v. Lewis, 523 U.S. 833, 851 (1998) (citation omitted). 	The Constitution
does not mandate comfortable prisons, but neither does it permit inhumane ones. See Farmer v.
Brennan, 511 U.S. 825, 832 (1994). “The Eighth Amendment prohibits punishments that deprive
inmates of the minimal civilized measure of life's necessities.” Smith v. Copeland, 87 F.3d 265,
268 (8th Cir.1996). 	Jail or prison officials must provide reasonably adequate ventilation,
sanitation, bedding, hygienic materials, food, and utilities. Prison conditions claims include threats
to an inmate's health and safety. Irving v. Dormire, 519 F.3d 441, 446 (8th Cir. 2008) (citation
omitted).
To state an Eighth Amendment claim the plaintiff must allege that prison officials acted
with “deliberate indifference” towards conditions at the prison that created a substantial risk of
serious harm. Farmer v. Brennan, 511 U.S. 825 (1994). “Conditions of confinement, however,
constitute cruel and unusual punishment ‘only when they have a mutually enforcing effect that
produces deprivation of a single, identifiable human need such as food, warmth, or exercise.’ .”
Whitnack v. Douglas County, 16 F.3d 954, 957 (8th Cir. 1994) (quoting, Wilson v. Seiter 501 U.S.
29, (1991)).
This standard involves both an objective and subjective component. 	The objective
component requires an inmate to show that “he is incarcerated under conditions posing a
substantial risk of serious harm.” Farmer, 511 U.S. at 834, (1970) (citations omitted); see also
Case 1:23-cv-01077-SOH-BAB Document 91 Filed 01/23/25 Page 19 of 23 PageID
#: <pageID>

20
Hudson v. McMillian, 503 U.S. 1 (1992) (The objective component is “contextual and responsive
to contemporary standards of decency.”) (quotation omitted). To satisfy the subjective component,
an inmate must show that prison officials had “a sufficiently culpable state of mind.” Farmer, 511
U.S. at 834 (citations omitted); see also Brown v. Nix, 33 F.3d 951, 954–55 (8th Cir. 1994).
The objective evidence in the summary judgment record indicates that Plaintiff was not
incarcerated under conditions posing a substantial risk of serious harm. 	As to Plaintiff’s
allegations of toxic black mold, the County Defendants have provided objective evidence that the
county hired Arkansas Mold and Water to test CCDC for air quality and microbial contamination
on March 28, 2023. 	(ECF No. 68 at 14). 	The air quality was found to be good, and no toxic
species of mold were discovered. (Id.). Instead, a “popular but non-toxic mold” was found in the
shower area and where inmates had blocked ventilation covers. (Id. at 14-15). This mold was “all
surface growth” that could be “cleaned and remedied with a mild detergent.” 	(Id. at 15). 	The
owner of the company stressed that these species of mold are “common and found everywhere.”
(Id.). He further concluded that the facility was “safe for people to live.” (ECF No. 66-7 at 3).
Further, Plaintiff was given access to cleaning supplies. (ECF No. 68 at 15).
The County Defendant also provided objective evidence that meals at CCDC are in
accordance with Arkansas Jail Standards, including the nutritional standards. (ECF No. 66-1 at
14). 	Food is prepared and served daily. 	(ECF No. 68 at 15). 	It is served on trays that can be
stacked with or without lids. (Id.). They are passed out by officers who also do a cell check and
pick up trash. (Id.). The facility orders prepackaged food in limited amounts, and checks the dates
as it comes in to make sure they do not have expired food. (Id. at 16). The Court also notes that
Plaintiff does not allege or provide evidence that he lost weight or suffered any other adverse health
issues due to the food provided at CCDC. See Wishon v. Gammon, 978 F.2d 446, 449 (8th Cir.
Case 1:23-cv-01077-SOH-BAB Document 91 Filed 01/23/25 Page 20 of 23 PageID
#: <pageID>

21
1992) (“prisoners have a right to nutritionally adequate food,” but a constitutional violation based
on inadequate nutrition requires evidence that an inmate’s health suffered as a result of the food).
Thus, Plaintiff’s allegations concerning toxic mold and nutritionally inadequate and
unsanitary food are contradicted by the summary judgment record such that no jury could
reasonably believe them. Accordingly, the County Defendants are entitled to summary judgment
as a matter of law as to Plaintiff’s conditions of confinement claims.
D. 	Defendants Rose, Rogers, Guice, Wilson, and Singleton
Plaintiff lists these Defendants at the beginning of his Amended Complaint, but fails to
name them as involved in any of the three claims in the body of his Complaint. (ECF No. 14 at 4-
5). Thus, his personal capacity claims against them should be dismissed. "Liability under Section
1983 requires a causal link to, and direct responsibility for, the deprivation of rights." Madewell v.
Roberts, 909 F.2d 1203, 1208 (8th Cir. 1990) (citing Rizzo v. Goode, 423 U.S. 362, 370 (1976)).
Thus, to state a cognizable Section 1983 claim, a complaint must set forth specific factual
allegations showing what each named defendant allegedly did, or failed to do, that allegedly
violated the plaintiff's federal constitutional rights. Plaintiff has not alleged a causal link between
Defendants Rose, Rogers, Guice, Wilson, and Singleton and the three claims in his Amended
Complaint. 	See Martin, 780 F.2d 1337. 	(Even a pro se Plaintiff must allege specific facts
sufficient to state a claim).
Nor is it necessary for these Defendants to remain named for any official capacity claims
concerning medical care, as Defendants Martin, Sieger, and Maness have been named for the
CCDC and remain in the case. Plaintiff's official capacity claim against any CCDC Defendant is
the equivalent of a claim against their employer. A suit against a government officer in his or her
official capacity is functionally equivalent to a suit against the employing governmental entity. See
Case 1:23-cv-01077-SOH-BAB Document 91 Filed 01/23/25 Page 21 of 23 PageID
#: <pageID>

22
Baker v. Chisom, 501 F.3d 920, 925 (8th Cir. 2007). 	Plaintiff has named Defendants Martin,
Sieger, and Maness as CCDC Defendants, and may bring his official capacity claims against them.
This claim should be dismissed as redundant against Rose, Rogers, Guice, Wilson, and Singleton.
See Veatch v. Bartels Lutheran Home, 627 F.3d 1254, 1257 (8th Cir. 2010) (A suit against a
government officer in his official capacity is functionally equivalent to a suit against the employing
governmental entity, thus it is proper to dismiss redundant defendants.)
Accordingly, Defendants Rose, Rogers, Guice, Wilson, and Singleton should be terminated
as Defendants in this case.
IV. CONCLUSION
Accordingly, it is recommended that the Motions for Summary Judgment by Defendants
Martin, Sieger, Rose, Maness, Rogers, Guice, Wilson and Singleton (“County Defendants”) (ECF
No. 66), and Defendant Elkins (ECF No. 73) be GRANTED IN PART AND DENIED IN PART.
1. 	The Motions (ECF Nos. 66, 73) should be GRANTED as to Plaintiff’s conditions
of confinement claims concerning toxic mold and inadequate and unsanitary food.
These claims should be DISMISSED WITH PREJUDICE;
2. 	The Motions (ECF Nos. 66, 73) should be DENIED as to Plaintiff’s denial and
delay of prescription medication claims 	These claims should remain for further
review. Defendants Martin, Sieger, Maness and Elkins should remain as parties in
the case.
3. 	Defendants Rose, Rogers, Guice, Wilson, and Singleton should be terminated as
Defendants in this case.
Referral Status: This case should remain referred for all matters not recommended for
dismissal in this Report and Recommendation.
Case 1:23-cv-01077-SOH-BAB Document 91 Filed 01/23/25 Page 22 of 23 PageID
#: <pageID>

23
The parties have fourteen 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 23rd day of January 2025.
/s/ 	Barry A. Bryant
HON. BARRY A. BRYANT
UNITED STATES MAGISTRATE JUDGE
Case 1:23-cv-01077-SOH-BAB Document 91 Filed 01/23/25 Page 23 of 23 PageID
#: <pageID>