Smith v. Tallant et al

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IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
TEXARKANA DIVISION
CURTIS WAYNE DALE SMITH, JR. 	PLAINTIFF
v. 	Civil No. 4:23-cv-04111-SOH-CDC
JANA TALLANT, Howard County Jail Administrator;
JOEY DAVIS, Howard County Detention Center;
and DR. JOAN MCLEAN 	DEFENDANTS
MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Plaintiff, Curtis Wayne Dale Smith Jr., filed this action pursuant to 42 U.S.C. § 1983.
Plaintiff proceeds pro se and in forma pauperis. 	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 is Defendant McLean’s Motion to Dismiss. 	(ECF No. 27).
Plaintiff responded. 	(ECF No. 47). 	This matter is now ripe for consideration.0F
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I. 	BACKGROUND
Plaintiff filed his original Complaint and Application to proceed in forma pauperis (“IFP”)
on November 27, 2023. 	(ECF Nos. 1, 2). 	The Court granted Plaintiff IFP status on the same
day. 	(ECF No. 3). 	Additionally, the Court directed Plaintiff to file an amended complaint. 	Id.
1 The Court notes the docket in this matter is somewhat confusing as Plaintiff was required to
respond, not only to the instant Motion to Dismiss, but also Defendant McLean’s Motion for
Summary Judgment on the issue of exhaustion, (ECF No. 32), and Defendants Davis and Tallant’s
Motion for Summary Judgment on the issue of exhaustion, (ECF No. 36), all filed in June 2024.
For this reason, Plaintiff’s response to the instant Motion was delayed, but accepted by the Court.
The Court will address Defendants Davis and Tallant’s Motion for Summary Judgment by separate
Report and Recommendation.
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Plaintiff filed his Amended Complaint on January 10, 2024. 	(ECF No. 8). 	The Court
found Plaintiff’s Amended Complaint difficult to decipher, but took care to interpret Plaintiff’s
claims 	and 	organize them 	in 	a logical 	order 	for 	purposes 	of 	its 	screening 	Report 	and
Recommendation issued on February 6, 2024. 	(ECF No. 10).
In that Report and Recommendation, the Court found Plaintiff failed to state claims upon
which relief could be granted related to many Defendants, but that Plaintiff had sufficiently stated
claims upon which relief may be granted related to his allegations of denial of medical care against
Defendant McLean.1F
2 (ECF No. 10). 	This Report and Recommendation was adopted by Judge
Hickey, and Plaintiff’s claims against Defendant McLean proceeded for service. 	(ECF Nos. 17,
26).
Plaintiff was incarcerated in the Howard County Detention Center (“HCDC”) during the
time in issue here. 	Further, Plaintiff indicates he was both a pretrial detainee and convicted inmate
at the times in issue. 	(ECF No. 8). 	In his Amended Complaint, Plaintiff alleges Defendant
McLean denied him medical care when she refused to run diagnostic tests on his back after
Defendant Davis’s use of force. 	(ECF No. 8, p. 7). 	Specifically, Plaintiff alleges:
. . . [W]hen I was arrested Joey Davis used more force than necessary and [i]njured my
back [badly] by dropping to much force with his knee into the center of my back (spine)
which I believe cracked [vertebras] and popped/and or pinched nerves in my back (spine)
and I wrote medical on the tablet on faculty forms seen pafford medical and they did not
give me the proper medical care I asked to get X-Rays to make sure and see how [badly]
my back was injured and to try to get proper medical care . . . and the (doctor or APN) Ms.
McLean told me she could not run di[a]gnostic on or put me in for x-Rays on my back and
that I would have to wait and get to [where] ever I was going before I got the X-Rays and
or proper medical care and I don’t Believe that follows in their [Hippocratic] oath So I was
denied the proper medical care I deserve . . .
2 Additionally claims and Defendants survived the screening process, however, the Court need
only address Plaintiff’s claims against Defendant McLean herein as Defendants Tallant and Davis
have not joined in this Motion to Dismiss.
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(ECF No. 8, p. 7) (errors in original). 	Plaintiff also alleges later in his Amended Complaint that
when Defendant Davis jumped on him he heard “snapping and was stove up (couldn’t move).”
(ECF No. 8, p. 10). 	Further, Plaintiff alleges he requested medical care multiple times from
Pafford Medical to take him for X-Rays on his back but was refused by Defendant McLean. 	Id.
Defendant McLean filed her Answer to Plaintiff’s Amended Complaint on April 8, 2024.
(ECF No. 24).
In her Motion to Dismiss, Defendant McLean argues: (1) Plaintiff has failed to allege facts
to show he suffered an objectively serious medical need; (2) Plaintiff is not entitled to the treatment
of his choice; (3) Plaintiff alleges a delay of medical care not denial and has not met his burden of
showing the delay caused him harm; (4) Plaintiff failed to allege Defendant McLean knew of a
substantial risk of harm to Plaintiff and ignored it. 	(ECF No. 28, pp. 5-6). 	Additionally,
Defendant McLean argues Plaintiff failed to allege any facts from which a jury could conclude
that Defendant McLean had knowledge of his medical need and deliberately disregarded it. 	Id.
at 7. 	Finally, Defendant McLean argues Plaintiff failed to allege any facts showing a policy of
Howard County caused Plaintiff’s constitutional rights to be violated. 	Id. at 8.
In his Response, Plaintiff argues he has alleged facts showing Defendant McLean’s
deliberate indifference to his back injury. 	(ECF No. 47). 	Plaintiff states as he did in his
Amended Complaint that Defendant Davis cracked his vertebras and pinched his nerves during his
arrest. 	Id. at 3. 	Plaintiff then requested medical services through the tablet at the HCDC and saw
Defendant McLean. 	At this time, she refused x-rays and informed Plaintiff he would need to wait
for diagnostic care until he “set were ever [he] was going . . ..” 	Id. at 3.
Plaintiff then goes to argue he needed the x-ray because the prescription he had from
Defendant McLean for an extra mat to help his back pain was not fulfilled by Defendant Tallant,
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and he needs “stronger pain meds . . . other than prelorsic.” Id. at 7. 	Despite knowing these facts
Defendant McLean still refused an x-ray. 	Id. 	Additionally, Plaintiff argues that Defendant Davis
first denied his request for medical attention immediately following the use of force, then
Defendant Tallant denied his request for medical attention, and finally Defendant McLean denied
his request for diagnostic test to prove his injuries from Defendant Davis’s use of excessive force.
Id. at 8.
Next Plaintiff argues he did state an official capacity claim against Defendant McLean.
Id. at 9. 	He specifically argues he has shown Defendant McLean is an employee of Howard
County. 	Id. 	Further that she violated her Hippocratic Oath by providing insufficient medical
care and violating the customs and policies she swore to uphold. 	Id. at 10.
Plaintiff also attached to his Response, as an exhibit, an Arkansas Department of Correction
Health Services Request Form dated September 13, 2023. 	(ECF No. 47, p. 12). 	In this request
form, Plaintiff explains his back was initially injured in a car wreck and then reinjured by
Defendant Davis at his arrest. 	Plaintiff states the prescription for the extra mat from Defendant
McLean is insufficient as Defendant Tallant has not fulfilled it. 	Also, Plaintiff states he needs
stronger pain meds other than his “prelorsic” 	Id.
Plaintiff also attached two of his own affidavits to his Response. 	(ECF No. 47-1). 	While
this affidavit predominantly concerns facts related to Plaintiff’s claims against Defendants Davis
and Tallant, he does also allege facts regarding Defendant McLean. 	Specifically, he states he was
not satisfied with Defendant McLeans observations and opinions. 	He did not want “pills,” but x-
rays and she would not order x-rays because she said she was only allowed to manage his pain but
not to conduct diagnostics. 	Id. at 6. 	Plaintiff goes on to state he did not receive an x-ray of his
back until he was transferred to the North Central Unit, but he does not provide a date for that x-
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ray or the results of that x-ray. 	Id.
Plaintiff’s second affidavit concerns only the grievance procedure and his grievances filed
at the HCDC. 	(ECF No. 47-2).
In her Reply, Defendant McLean argues Plaintiff admits Defendant McLean treated his
back pain, but he simply disagrees with the type of treatment she prescribed. 	(ECF No. 50, p. 2).
Defendant McLean also argues Plaintiff failed to show an official capacity claim in his Response.
Id. at pp. 3-4.
II. 	APPLICABLE STANDARD
As an initial matter, the Court notes a Motion to Dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(6) is a pre-answer motion. 	Fed. R. Civ. P. 12(b)(6); Westcott v. City of Omaha,
901 F.2d 1486, 1488 (8th Cir. 1990). 	Accordingly, Defendant McLean’s filing of a Motion to
Dismiss under this Rule after answering Plaintiff’s Amended Complaint is improper timing.
However, Defendant McLean did not waive her ability to present a failure to state a claim upon
which relief can be granted in failing to assert it prior to her Answer. 	Defendant may still plead
the defense in a motion for judgment on the pleadings pursuant to Rule 12(c). 	Fed. R. Civ. P.
12(c); 12(h)(2); Westcott, 901 F.2d at 1488.
Moreover, as the legal standard for a motion for judgment on the pleadings under Rule
12(c) is the same standard as a motion to dismiss under Rule 12(b)(6), the Court will interpret the
Defendant McLean’s Motion as one for a judgment on the pleadings pursuant to Rule 12(c). 	See
Westcott, 901 F.2d at 1488 (noting the “distinction is purely formal” as courts review a Rule 12(c)
motion for judgment on the pleadings under the same standard courts consider a Rule 12(b)(6)
motion to dismiss). 	A “[j]udgment on the pleadings is appropriate when there are no material
facts to resolve[,] and the moving party is entitled to a judgment as a matter of law.” 	Mills v. City
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of Grand Forks, 614 F.3d 495, 497-98 (8th Cir. 2010).
Rule 8(a) contains the general pleading rules and requires a complaint to present “a short
and plain statement of the claim showing that the pleader is entitled to relief.” 	Fed. R. Civ. P.
8(a)(2). 	“A claim has facial plausibility when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 	The Court will consider well plead factual
allegations in the Complaint as true and construe all reasonable inferences from the pleadings in
favor of the non-moving party. 	Morton v. Becker, 793 F.2d 185, 187 (8th Cir. 1986). 	However,
while the Court will liberally construe a pro se plaintiff’s complaint, the plaintiff must allege
sufficient facts to support his claims. 	See Stone v. Harry, 364 F.3d 912, 914 (8th Cir. 2004).
Additionally, the Court may consider the pleadings themselves, materials embraced by the
pleadings, exhibits attached to the complaint, and matters of public record in ruling upon a Rule
12(c) motion. 	Porous Media Corp. v. Pall Corp., 186 F.3d 1077, 1079 (8th Cir. 1999).
Furthermore, the Eighth Circuit requires the Court to consider allegations made and documents
attached to the nonmoving party’s response. 	See Pratt v. Corrections Corp. of America, 124 Fed.
Appx. 465, 466, 2005 WL 332136, at *1 (8th Cir. 2005) (unpublished) (citing Fed. R. Civ. P. 10(c)
(“A copy of a written instrument that is an exhibit to a pleading is a part of the pleading for all
purposes.”); see also Anthony v. Runyon, 76 F.3d 210, 214 (8th Cir. 1996) (finding the district
court erred in not considering new allegations in response to motion to dismiss simply because
they did not come in the form of an amended complaint).
III. 	DISCUSSION
The Court notes Plaintiff indicated he was both a pretrial detainee and a convicted inmate
in August 2023 when the alleged denial of medical care occurred. 	(ECF No. 8, p. 2). 	However,
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his status is irrelevant here, as courts in the Eighth Circuit analyze denial of medical care claims
under the deliberate indifference standard of the Eighth Amendment for both pretrial detainees and
convicted inmates.. 	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).
To succeed on this type of claim, Plaintiff must demonstrate (1) that he had an objectively
serious medical need, and (2) that the Defendants actually knew of, but deliberately disregarded,
that serious medical need. 	See Ivey v. Audrain Cty., Mo., 968 F.3d 845, 848 (8th Cir. 2020). 	“A
serious medical need is one that has been diagnosed by a physician as requiring treatment, or one
that is so obvious that even a layperson would easily recognize the necessity for a doctor’s
attention.” 	Coleman v. Rahija, 114 F.3d 778, 784 (8th Cir. 1997) (internal quotations omitted).
“To demonstrate that a defendant actually knew of, but deliberately disregarded, a serious medical
need, the plaintiff must establish a mental state akin to criminal recklessness: disregarding a known
risk to the [detainee’s] health.” 	Barton v. Taber, 908 F.3d 1119, 1124 (8th Cir. 2018) (internal
quotations and citations omitted). 	The Eighth Circuit has stated that this “onerous standard
requires a showing more than negligence, more than even gross negligence, but less than
purposefully causing or knowingly bringing about a substantial risk of serious harm to the inmate.”
Thompson v. King, 730 F.3d 742, 747 (8th Cir. 2013) (internal quotations and citations omitted).
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 v. Gamble, 429 U.S. 97, 104–05 (1976). 	However, the “Constitution does not require
jailers to handle every medical complaint as quickly as each inmate might wish.” 	Jenkins v. Cty.
of Hennepin, Minn., 557 F.3d 628, 633 (8th Cir. 2009). 	“A prisoner alleging a delay in treatment
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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) (internal quotations 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 v. VonWald, 638 F.3d 905, 919 (8th Cir. 2011) (citing
Roberson v. Bradshaw, 198 F.3d 645, 648 (8th Cir. 1999)); see also Boyd v. Knox, 47 F.3d 966,
969 (8th Cir. 1995) (holding a three-week delay, “coupled with knowledge of inmate-patient’s
suffering, can support a finding of an Eighth Amendment violation”).
A. Individual Capacity
In his Amended Complaint, Plaintiff alleges he was injured by an officer jumping on his
back causing a popping sound. 	This injury resulted in Plaintiff being unable to move. 	(ECF No.
8, pp. 7, 10). 	The Court finds these allegations, if proven, may sufficiently state an objectively
serious medical need. 	Next, in his Amended Complaint, Plaintiff alleges he filed medical requests
to Defendant McLean requesting medical care, specifically x-rays, of his back after this injury.
Plaintiff goes on to allege even though she knew of his injury, Defendant McLean refused to treat
him. 	Id. 	The Court finds these allegations, if proven, may state deliberate indifference.
Accordingly, as the Court previously held in its Report and Recommendation: Plaintiff’s factual
allegations, as stated in his Amended Complaint, state a claim upon which relief may be granted
for denial of medical care under the Eighth Amendment.2F
3
3 The Court notes the standard considered in screening pro se prisoner complaints pursuant
to the Prison Litigation Reform Act is comparable to the standard used under Federal Rule of Civil
Procedure 12(b)(6). 	28 U.S.C. § 1915A(b) (The Court must dismiss a complaint, or any portion
of it, if it contains claims that: (1) are frivolous, malicious, or fail to state a claim upon which relief
may be granted, or (2) seek monetary relief from a defendant who is immune from such relief.)
A claim fails to state a claim upon which relief may be granted if it does not allege “enough facts
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However, on the instant Rule 12(c) Motion, the Court must now consider all the pleadings
including Plaintiff’s Response and the exhibits and affidavits he attached to his Response.
Anthony, 76 F.3d at 214. 	In that Response, Plaintiff provided additional details regarding his
denial of medical care claim against Defendant McLean. 	Specifically, Plaintiff alleges in his
Response that Defendant McLean was in fact treating his back injury with a prescription of an
extra mat and pain medication. 	(ECF No. 47, pp. 7-8). 	Plaintiff goes on to argue it was her
denial of x-rays of which he specifically complains. 	Furthermore, Plaintiff explains he sought
diagnostic x-rays to prove Defendant Davis injured him in his use of excessive force. 	Id. at 8. 	In
his Affidavit, Plaintiff explains his claim even further by stating he was unsatisfied with Defendant
McLean’s observations and opinions. 	(ECF No. 47-1). 	Plaintiff did not want just pain
medication, but x-rays. 	Plaintiff states he did not receive that x-ray until he transferred to the
Arkansas Division of Corrections. 	Id. 	These factual allegations are sworn made under penalty
of perjury and undisputed by Defendant McLean. 	(ECF Nos. 47, 47-1).
Plaintiff provided revealing explanation of his denial of medical care claim against
Defendant McLean in his Response, and the Court now determines Plaintiff’s claim is not as it
originally understood. 	Plaintiff is not claiming Defendant McLean denied him medical care but
that she denied him the specific treatment he requested – an x-ray. 	Plaintiff admits in his response
Defendant McLean provided him treatment for his back – an extra mat and pain medication. 	He
even states in his Affidavit that she made observations and formed opinions on his medical
condition. 	Therefore, the facts, as alleged by Plaintiff, state only that he disagreed with the
to state a claim to relief that is plausible on its face.” 	Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007).
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treatment provided by Defendant McLean. 	These allegations cannot support a plausible claim for
denial of medical care against Defendant McLean. 	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 quotation marks and citations omitted); Meuir v. Greene Cty. Jail
Employees, 487 F.3d 1115, 1118–19 (8th Cir.2007) (an inmate has no constitutional right to a
particular course of treatment, and his mere disagreement with the medical treatment he receives
is not a basis for section 1983 liability).
Accordingly, considering all facts alleged in the pleadings and supporting documents, in
the light most favorable to Plaintiff, the Court finds Plaintiff has failed to state a plausible claim
for denial of medical care against Defendant McLean.
B. Official Capacity
For his official capacity claim, in considering all facts from the pleadings, in the light most
favorable to Plaintiff, the Court finds Plaintiff has also failed to state a plausible official capacity
claim against Defendant McLean. 	Without a cognizable constitutional violation alleged, there
can be no official capacity claim against the employer. 	See Morris v. Cradduck, 954 F.3d 1055,
1060 (8th Cir. 2020); Sanders v. City of Minneapolis, Minn., 474 F.3d 523, 527 (8th Cir. 2007)
(citing City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986)).
IV. 	CONCLUSION
For these reasons, it is recommended Defendant McLean’s Motion to Dismiss (ECF No.
27), considered as a Motion for Judgment on the Pleadings, should be GRANTED and Plaintiff’s
individual and official capacity claims against Defendant McLean should be DISMISSED
WITHOUT PREJUDICE. 	Furthermore, as it is recommended Defendant McLean be dismissed
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from this matter, her Motion for Summary Judgment on the issue of exhaustion (ECF No. 32)
should be terminated as moot.
REFERRAL STATUS: This case should remain referred.
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 25th day of October 2024.
/s/ 	Christy Comstock
HON. CHRISTY COMSTOCK
UNITED STATES MAGISTRATE JUDGE
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