Scott v. Karas et al

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IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FAYETTEVILLE DIVISION
BRANDON SCOTT 	PLAINTIFF
v. 	Civil No. 5:23-cv-05188-TLB-CDC
DR. ROBERT KARAS, Karas
Correctional Health; and EARL HINELY,
Registered Nurse, Karas Correctional Health 	DEFENDANTS
REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE
Plaintiff, Brandon Scott (“Scott”), filed this civil rights action under 42 U.S.C. § 1983.
Plaintiff is proceeding pro se and in forma pauperis. 	At the time of filing, Scott was being
detained at the Washington County Detention Center (WCDC). 	While housed at the WCDC,
Scott alleges Defendants, without Scott’s knowledge or consent, gave him Ivermectin.
Pursuant to the provisions of 28 U.S.C. §§ 636(b)(1) and (3), the Honorable Timothy L.
Brooks, United States District Judge, referred this case to the undersigned for the purpose of
making a Report and Recommendation. 	Defendants have filed a Motion for Summary Judgment
on the issue of exhaustion. (ECF Nos. 20-22). After some delay, Scott filed his Response (ECF
No. 29), to which Defendants replied. 	(ECF No. 30). 	After consideration and for the reasons
herein, the undersigned recommends the Motion be denied.
I. 	BACKGROUND
According to his Amended Complaint, Scott was given Ivermectin on May 6, 2020. 	(ECF
No. 9 at 5). 	He started having a high temperature, bad headaches, body aches, cotton mouth, cold
sweats and his eyes were hurting and watering. 	Id. at 5-6. 	Scott further alleges that since 2020
he has noticed his “stomach was feeling funny” and he frequently sought medical attention. 	Id.
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at. 	At one point, prison medical staff thought he had stomach cancer. 	Id. 	Scott has taken all
types of medication for his stomach issues and is still taking medication. 	Id. at 7.
In October of 2023, while reading the Arkansas Democrat Gazette, Scott learned Defendant
Karas “was giving us Ivermectin, saying he was experimenting on inmates.” 	(ECF No. 9 at 5 &
7). 	Scott contends he was told he was just being given vitamins. 	Id. 	Scott alleges he learned
Dr. Karas had been distributing Ivermectin “claiming that it was a cure for COVID-19.” 	Id. at 6.
The nurses working morning shift were giving out the pills claiming they were vitamins. 	Id.
Scott maintains that Defendant Hinely was involved in giving out the “vitamins” in the unit. 	Id.
at 7.
II. 	LEGAL STANDARD
Summary judgment is appropriate if, after viewing the facts and all reasonable inferences
in the light most favorable to the nonmoving 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.” 	Nat’l 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." 	Nat’l 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
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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. 	DISCUSSION
In their Motion, Defendants say they are entitled to summary judgment on the grounds
Scott failed to exhaust his administrative remedies. 	(ECF No. 20 at 1). 	Defendants also raise the
following arguments: (1) federal detainees may not file an action under § 1983 even when being
held in a county facility; (2) Ivermectin was not being used at the WCDC in May of 2020; (3) Scott
was aware of the alleged use of Ivermectin in April of 2020; and (4) Scott has not alleged the
existence of a custom or policy as required for an official capacity claim.
A. 	Exhaustion of Administration Remedies
1. 	The PLRA’s Exhaustion Requirement
The Prison Litigation Reform Act (“PLRA”) in 42 U.S.C. § 1997e(a) 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.” 	Exhaustion is mandatory. 	Porter v.
Nussle, 534 U.S. 516, 524-25 (2002). 	In Jones v. Bock, 549 U.S. 199 (2007), the Supreme Court
concluded 	“to 	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 of detail necessary
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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. 	A prisoner’s remedies are exhausted “when [the] inmate pursues the prison
grievance process to its final stage and receives an adverse decision on the merits.” 	Hammett v.
Cofield, 681 F.3d 945, 947 (8th Cir. 2012).
In Ross v. Blake, 578 U.S. 632, 643-44 (2016), the Supreme Court noted three instances
where the administrative remedy is unavailable and failure to exhaust in these situations does not
end the claim: (1) “[W]hen (despite what regulations or guidance materials may promise) it
operates as a simple dead end—with officers unable or consistently unwilling to provide any relief
to aggrieved inmates[;]” (2) “[When] an administrative scheme [is] so opaque that it becomes,
practically speaking, incapable of use. 	In this situation, some mechanism exists to provide relief,
but no ordinary prisoner can discern or navigate it[;]” and (3) “[W]hen prison administrators thwart
inmates from taking advantage of the grievance process through machination, misrepresentation,
or intimidation.” 	Id.
2. 	The WCDC’s Grievance Procedure
The WCDC grievance procedure is outlined in the Detainee Handbook. 	It provides as
follows:
You are allowed to file a grievance if you feel you have been subjected to
abuse or an abridgement of your civil rights while being detained. 	All grievances
will be done on the Kiosk in your cell block.
A grievance must be submitted within ten days from the time the event
complained of occurred. 	The grievance shall include:
A. The date and approximate time of the event
B. The name(s) of the person(s) involved
C. The name(s) of any witness(es)
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D. Pertinent details of the event
All grievances are reviewed by the Jail Administrator or their designee. 	If
you feel your grievance was improperly handled, you may appeal to the Sergeant
or Lieutenant.
(ECF No. 22-2 at 4-5).
3. 	Application
According to Corporal Mulvaney, Scott “never grieved any allegation against any person
or person, alleging he was given Ivermectin for an alleged COVID-19 infection.” 	(ECF No. 22-
2 at 1). 	Corporal Mulvaney attaches copies of Scott’s grievances submitted during the relevant
time. 	Id. at 6-90.
Having reviewed the grievances, the Court agrees Scott did not submit a grievance about
being given Ivermectin during his incarceration in 2020. 	This is not, however, unexpected
because Scott states he was unaware he was given Ivermectin until October 2023. 	Scott argues
he did attempt to exhaust his grievances during a later incarceration at the WCDC. 	Further, he
maintains his failure to exhaust in 2020 should be excused since he was unaware, he was given
Ivermectin at that time.
In this regard, Defendants suggest Scott’s claim that he learned of the use of Ivermectin
in an October 2023 news article about other inmates suing is false as “[t]hat lawsuit was filed in
January of 2022, based on alleged events that occurred in August of 2021—in fact that lawsuit
and the allegations therein made international news. 	Floreal-Wooten v. Washington Cty.
Detention Center, 5:22-cv-05011-TLB-CDC.” 	(ECF No. 22 at 2). 	Defendants state the news
was reported in August of 2021. 	Id. 	Further, they argue Scott claimed on April 30, 2020, to
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have watched the news regarding Karas Correctional Health (KCH) but never complained about
Ivermectin or any alleged ill effects from it. 	Id. at 3.
First, simply because there was a news article in August of 2021 does not establish Scott
read about or knew the article. Second, there was a news article published on October 6, 2023,
regarding the settlement of the Floreal-Wooten case.1 	The article described how Washington
County inmates were unknowingly given Ivermectin. 	Id. 	Third, Scott mentioned having seen
something on the news on April 30, 2020, he says: “[I] seen yawl on news and yawl said yaw
are taking cautions and full care for inmates in yawl care.” 	(ECF 22-2 at 7). While he goes on
to complain about the nurse not wearing gloves when passing medication, Scott never says the
news even mentioned KCH or its employees. 	Id. 	In Scott’s next mention of the news, he
reports Washington County stated they gave all staff and inmates masks. 	Id. at 48. 	Both
grievances mentioning the news address the wearing or provision of personal protective
equipment and are unrelated to the use of Ivermectin in the facility. 	Id.
Scott maintains he was unaware of having been given Ivermectin until October of 2023.
He contends he was given Ivermectin but was told he was receiving vitamins. 	In other words,
he was given the medication without his knowledge or consent. 	Clearly, he could not have
exhausted the grievance procedure in May of 2020 because Defendants withheld facts from
him. 2 	See Ross, 578 	U.S. at 644 	(Grievance procedure not 	available “when prison
1 https://www.nwaonline.com/news/2023/oct/06/washington-county-inmates-unknowingly-
treated/ (visited November 14, 2024).
2 In their reply brief, Defendants argue their statement of undisputed material facts (“SOF”) should
be deemed admitted. 	(ECF No. 30 at 4). 	Defendants argue Scott failed to comply with Rule 56
of the Federal Rules of Civil Procedure and Rule 56.1 of the Local Rules for the Eastern and
Western Districts of Arkansas because he “failed to respond properly” to the SOF despite having
been given instructions on how to respond. 	The Court agrees that Scott’s response to Defendants’
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administrators thwart inmates from taking 	advantage of 	the grievance process through
machination, misrepresentation, or intimidation”). 	In such cases, “§ 1997e(a) poses no bar.”
Id. 	Once he learned of the use of Ivermectin, the WCDC grievance procedure was unavailable
to Scott because he could not have grieved this issue. 	He was a former inmate, and the grievance
would not have been submitted within ten days of the occurrence.
B. 	Section 1983’s Availability
Defendants contend Scott is precluded from using § 1983 because he was a federal detainee
and in support, cite Glennie v. Garland, Civil No. 21-231, 2023 WL 2265247 (D.R.I. Feb. 28,
2023) (Report and Recommendation of Patricia A. Sullivan, United States Magistrate Judge,
adopted without objection).
After a careful reading of this case, the undersigned finds it does not support Defendants’
argument here. 	David Glennie (“Glennie”) was a federal pre-trial detainee being held at the
Donald W. Wyatt Detention Facility who alleged the denial of adequate medical/dental care.
Glennie alleged in his complaint that all defendants were acting under color of federal law. 	Id. at
*1. 	In response to a motion to dismiss, Glennie argued his complaint should be interpreted “as
claiming that Defendants were persons acting under color of state law, implicating 42 U.S.C. §
1983.” 	Id.
SOF was not in the “proper” format. 	However, in Scott’s brief, Section I is entitled: “Introduction
and undisputed materials facts reply from plaintiff.” 	(ECF No. 29 at 1). 	Scott then goes on to
maintain he was in fact given Ivermectin by the Defendants. 	He further states he could not have
submitted a grievance as he did not learn of the use of Ivermectin until October 2023. 	Under the
liberal pleadings standards applied to pro se filings, the Court declines to deem Defendants’ SOF
as admitted.
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Addressing these claims, Magistrate Judge Sullivan first concluded that Bivens – the
“federal analog to § 1983” – does not permit Glennie’s denial of medical and dental claims because
Bivens allow only for action against federal actors in their individual capacities and does not permit
injunctive relief and should not, under circumstances subjected to lengthy analysis, be extended to
include any of Glennie’s viable claims for money damages. Id. at *12-15. 	Judge Sullivan then
turned to analyze whether Glennie could assert any potentially surviving claims under § 1983,
noting that defendant “must be either a state actor or a federal actor – he cannot be both” and that
Glennie “alleges all defendants were acting under color of federal law.” Id. at *15. 	While Judge
Sullivan ultimately held that Glennie could not assert § 1983 claims under these circumstances,
her ruling was based, in part, on the nature of the facility Glennie was being held in – a federal
detention facility operated by a third party, the Central Falls Detention Facility Corporation. 	Id.
The facility was built to house federal detainees; although the facility was “authorized by state law
and created by a municipality,” its purpose was to “provide a facility in which USMS could house
federal pretrial detainees.” 	Id. at *15-16. 	Assessing the totality of the circumstances and relying
on Sarro v. Cornell Corrections, Inc., 248 F.Supp.2d 52 (D. R.I. 2003), Judge Sullivan concluded
that Plaintiff was a federal detainee who had been remanded into the custody of the U.S. Marshal’s
Service on alleged violations of federal law, that the Warden was holding Glennie pursuant to a
federal detention order and implementing federal policies of the U.S. Marshal’s Service regarding
dental care and for those reasons, the defendants were federal actors who were not subject to §
1983. 	Id.
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Here, in contrast, the WCDC is a county jail which primarily houses state detainees and
some federal detainees under contract with the USMS, and Defendants cite no Eighth Circuit law
requiring or suggesting that the reasoning of Sarro or Glennie is persuasive here. 	As noted in a
recent prior decision of this District, Section 1983 remains an available remedy to Scott. 	See e.g.,
Wesley v. Kinley, No. 1:22-cv-01026, 2024 WL 1207130, *12 (W.D. Ark. Feb. 28, 2024)
(“Regardless of their agreement with the USMS, Plaintiff was in the [Ouachita County Detention
Center’s] custody, and Defendants had a constitutional duty to provide him with adequate medical
care”) (citing Belbachir v. Cty. of McHenry, 726 F.3d 975, 978 (7th Cir. 2013) (explaining that a
contract with the federal government to house federal detainees does not federalize the county jail,
thus § 1983 is the appropriate avenue to allege claims against county employees for constitutional
violations against the federal detainees)).
C. 	Use of Ivermectin in the WCDC
Defendants next argue that Ivermectin was not being used in the WCDC in May of 2020.
In support, Defendants offer the affidavit of APRN Kelley Hinely who indicates she is an employee
of KCH and works at the WCDC. 	(ECF No. 22-1 at 1). 	According to APRN Hinely, during the
time Scott was at the WCDC, the only medicines “he was ever offered where vitamins including
Vitamin C, Vitamin D, and Keflex (due to pain in [Scott’s] ear). 	He was also prescribed
Cephalexin one time on May 1, 2020.” 	Id. at 1-2.
According to APRN Hinely, “Ivermectin was not utilized as part of any COVID-19
protocol at the time [Scott] was incarcerated at the WCDC as it relates to this lawsuit (April or
May of 2020). 	(ECF No. 22-1 at 3). 	She thus contends it was never used on Scott. 	Id. 	“Rather,
while some high-risk patients were offered Ivermectin in December of 2020, the first time Dr.
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Karas incorporated Ivermectin in the COVID-19 treatment protocol was during the Delta wave of
the virus, sometime in the Summer of 2021.” 	Id. 	Next, APRN states Defendant Karas never
personally “treated” Scott and Defendant Hinely is not involved in medication pass. 	Id. at 4.
The pending Motion for Summary Judgment is not supported by the affidavits from either
of the named Defendants. 	Because discovery has been stayed while the issue of exhaustion was
resolved, the undersigned believes it premature to rule on the merits of the claim when Scott has
not been afforded the opportunity to engage in discovery. 	Based on the allegations of the
Amended Complaint, Scott has plausibly alleged that he was given Ivermectin without his
knowledge and that Defendants Karas and Hinely were personally involved in the decision and/or
distribution of the medication. 	Additionally, Scott has asserted under penalty of perjury that he
was given Ivermectin by the Defendants. 	(ECF No. 29).
E. 	Official Capacity Claim
Defendants’ final argument is that the Amended Complaint falls short of alleging the
existence of any custom or policy of KCH’s that was the moving force behind the alleged
constitutional violations. 	In his 1983 form complaint, Scott was directed to “describe the custom,
policy, or widespread practice that you believe caused the violation of your constitutional rights,”
to which Scott: “Dr. Robert Karas was experimenting Ivermectin and claimed to be horse pills as
vitamins to treat COVID-19[] throughout the jail. 	He used me as a lab rat without my [consent].”
(ECF No. 9 at 6). 	With respect to claim two, Scott wrote: “They are suppose[d] to take care of
the inmates medical, mental, and protect inmates from harm. 	In your official capacity.” 	Id. at 8.
With respect to claim three, he made no allegations but cited three cases. 	Id. at 10.
An official capacity claim is considered a claim against the employing governmental entity
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or in this case the third-party contractor, KCH. 	Crawford v. Van Buren Cty., 678 F.3d 666, 669
(8th Cir. 2012). 	“Section 1983 liability for a constitutional violation may attach to a municipality
if the violation resulted from (1) an ‘official municipal policy,’ (2) an unofficial ‘custom,’ or (3) a
deliberately indifferent failure to train or supervise.” 	Corwin v. City of Indep., Mo., 829 F.3d 695,
699 (8th Cir. 2016) (citations omitted). 	In this context, policy means an “official policy, a
deliberate choice of a guiding principle or procedure made by the municipal official who has final
authority regarding such matters.” 	Id. at 700. 	The undersigned believes Scott has plausibly
alleged that Dr. Karas adopted a policy of giving Ivermectin to unknowing inmates in the WCDC
facility.
IV. 	CONCLUSION
For these reasons, it is recommended that Defendants’ Motion for Summary Judgment
(ECF Nos. 20-22) be DENIED.
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.
Status of the Referral: This case should remain referred for all matters not
recommended for dismissal in this Report and Recommendation.
RECOMMENDED this 18 th day of November 2024.
CHRISTY COMSTOCK
UNITED STATES MAGISTRATE JUDGE
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