De Rossitte v. Daniel et al

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IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HOT SPRINGS DIVISION
IKARA CHRISTIANA EARNESTINE EUGE
VAGANTE DE ROSSITTE
(formerly known as Christopher Eugene De Rossitte) 	PLAINTIFF
v. 	Civil No. 6:23-cv-06008-SOH-CDC
WELLPATH LLC;
DR. THOMAS DANIEL;
CHRIS HORAN
(Wellpath Regional Medical Director);
CHARLOTTE GARDNER
(Wellpath Regional Ombudsman);
DOE WELLPATH ADMINISTRATORS;0F
1
WELLPATH LIQUIDATING TRUST1F
2 	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, United States District Judge,
referred this case to the undersigned for the purpose of making a Report and Recommendation.
This matter comes before the Court for review following the status report on the bankruptcy
proceedings of Wellpath Holdings, Inc. filed by Defendants Daniel, Gardner, Horan and Wellpath
LLC. (ECF No. 67). Also before the Court is Defendants’ Motion for Summary Judgment on the
Merits, (ECF No. 52), which was filed prior to this case being stayed and administratively
terminated for the Wellpath LLC bankruptcy proceedings. (ECF No. 66).
1 The deadline for Plaintiff to identify the Doe Defendants is long past.
2 Added as a nominal Defendant on March 6, 2026.
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I. BACKGROUND
Plaintiff filed his Complaint on January 13, 2023. (ECF No. 1). On February 9, 2023, the
Court entered an Order directing him to file an Amended Complaint to address deficiencies in his
Complaint. (ECF No. 6). Plaintiff filed his Amended Complaint on February 27, 2023. (ECF No.
8). Plaintiff indicated she is incarcerated at the Arkansas Division of Correction (ADC) Ouachita
River Unit, Special Needs Unit for her claims. (Id. at 6, 7, 9). For Claim One, Plaintiff alleges
that from January 1, 2020, through May 2021, Wellpath LLC and Doe Wellpath Administrators
denied him medical care for prosthetic right leg. (Id. at 6). She alleges that Mr. Felix of Arkansas
Orthotics and Prosthetics notified Wellpath LLC of the medical need for a replacement because
the current prosthetic did not fit and was becoming increasingly unusable. 	(Id.). 	Wellpath
approved the replacement on January 9, 2020, but refused to act to replace it. (Id.). The prosthetic
broke in July of 2020, rending it ”virtually useless.” (Id.). Plaintiff alleges Wellpath continued to
refuse action until Plaintiff obtained intervention from the ADC Warden Culclager, then continued
to delay until May 2021. (Id. at 7). Plaintiff proceeds against Wellpath in its official and individual
capacity. (Id.). As his official capacity claim, she alleges that Wellpath has demonstrated a pattern
of delaying and denying auxiliary aids to inmates, and points to a prior case where she was denied
hearing aids for 17 months. (Id.).
For Claim Two, Plaintiff alleges denial of prescribed medications for her dry eye condition
from December 2021 though the filing of his Complaint. 	Plaintiff names Defendants Wellpath
LLC, Daniel, Horan, Gardner, and Doe Wellpath Administrators. 	(Id. at 8). 	Specifically, she
alleges that she suffered a “flare up” up her dry eye condition in “late Dec. 2021” because Wellpath
failed “to provide the medications prescribed to treat it.” 	(Id.). 	She alleges this became worse
over 2-plus months as documented by Wellpath nurses in over 10 exams, with the nurses
“eventually pushing for ophthalmological care.” 	(Id.). 	This care was denied by Horan and
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Gardner, who never examined Plaintiff. It was also denied by Daniel who examined Plaintiff’s
eyes “for the 1st time EVER” on March 7, 2022 after her left eye had so deteriorated that immediate
emergency admittance to the ICU (for 7 days) at the University for Arkansas at Medical Sciences
(for a total of 10 day stay) was required just to SAVE her eye…” (Id.). Plaintiff alleges that she
ultimately needed a cornea transplant 6 months later and is legally blind in that eye. (Id.). Plaintiff
alleges the combination of systemic indifference combined with physician-level indifference
“resulted in a horrendous outcome for an otherwise fairly routine, known and long-treated medical
condition; the plaintiff suffering terrible and wholly unnecessary pain and injury.” (Id.). Plaintiff
proceeds against the named Defendants in both their official and individual capacity. (Id. at 9).
As her official capacity claim, he alleges “systemic structural and iterative failures (see claim 3),
regardless of any official policy, did by custom and practice initiate the chain of events of
deliberate indifference that sine qua non, there would very likely not have been any injury without
– and no horrible pain, suffering, and blindness.” (Id.).
For Claim Three, Plaintiff alleges that from January 1, 2020 though the filing of her
Complaint, she was routinely denied refills for “up to weeks” and requests went unanswered for
“up to months.” (Id. at 10). She alleges this happened though “whatever Administrative Doe(s)
revolve through positions involved (unknown) . . . .” (Id.). Plaintiff names Defendants Wellpath
LLC, Gardner and the Doe Wellpath Administrators. (Id.). Plaintiff further alleges that Wellpath
“seeks to undermine recourse through the grievance process by duplicitous means (Gardner)
demonstrating a lack of oversight and a corporate indifference and absolute unwillingness to
correct problems brought to the attention – all resulting in increased suffering for Plaintiff.” (Id.).
Plaintiff proceeds against Defendants in their official and individual capacities. 	(Id.). 	As his
official capacity claim, Plaintiff alleges “IF there is any coherent policy regarding timely
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medication request responses and refills, it is by custom and practice routinely ignored; and
complaints pertaining thereto (if there is any coherent policy regarding answering such) are by
custom and practice routinely ignored.” 	(Id. at 10-11). 	Plaintiff does not identify either the
specific refills or the medical conditions(s) for which the refills were prescribed in this claim,
although she does make a reference to Claim 3 as an “iterative failure” in her official capacity
claim in Claim Two. Plaintiff makes no specific factual allegations concerning Defendant Gardner
for Claim Three.
Plaintiff seeks compensatory and punitive damages. 	She asks that the compensatory
damages be commensurate with her pain and suffering. 	(Id. at 11). 	She asks that the punitive
damages be sufficient to discourage the repetition of Defendants’ malfeasance. (Id.).
Defendants filed their Motion for Summary Judgment on June 18, 2024. (ECF No. 52).
They argue Plaintiff’s claims against them should be dismissed because Plaintiff was properly
assessed and treated for both her prosthesis and her eye condition. (Id. at 4). They further argue
that, to the extent Plaintiff’s Amended Complaint seeks a corrective inaction claim against
Defendant Gardner, the Wellpath Ombudsman, the claim should be dismissed as a matter of law
because Plaintiff failed to allege any facts to support that claim. (Id. at 5). Further, in the absence
of any constitutional violation by the medical providers, there can be no liability on the part of
Wellpath. (Id.).
On June 26, 2024, the Court entered an Order directing Plaintiff to submit her Summary
Judgment Response. Plaintiff filed her Response documents on September 16, 2024. (ECF Nos.
61, 62, 63, 64).
On November 20, 2024, Wellpath 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
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States Bankruptcy Judge for the Southern District of Texas, Houston Division, on November 12,
2024. (ECF No. 65). 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 December 13, 2024. (ECF No. 66).
On May 22, 2025, Defendants Wellpath, Daniels, Gardner and Horan filed a Status Report
on the bankruptcy proceedings. 	(ECF No. 67). 	They explained that the Bankruptcy Court had
confirmed the Plan of Reorganization (“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. 68). The WellPath Defendants filed a response saying that the Plan
permanently enjoins Plaintiff from commencing or continuing any action against WellPath, LLC,
and that Plaintiff had opted-out of the third-party releases in the Plan with respect to his individual
capacity claims against Defendants Daniel, Hora, and Gardner. 	(ECF No. 69). 	Accordingly,
Plaintiff could proceed in this Court for her causes of action against these Wellpath employees.
(Id.).
Plaintiff filed a Reply on July 1, 2025. (ECF No. 70). Plaintiff argues that Wellpath did
not address the Doe Wellpath Administrators in their Response. (Id. at 1). She further argues that
Wellpath never positively identified them during discovery and they should not be absolved from
the case. This argument will not be addressed, as the deadline to identify these Defendants is long
past, as is the time for any discovery disputes. Plaintiff filed an Addendum to her Reply on July
21, 2025. (ECF No. 71). Plaintiff asks that Wellpath LLC remain as a Defendant in this case on
a nominal basis “pursuant to 28 U.S.C. § 157(b)(5), in the person of the Liquidating Trust to seek
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a determination of their liability for seeing pro rata distribution or third party insurance proceeds
in accordance with the Plan accepted by the U.S. Bankruptcy Court.” 	(Id.). 	Plaintiff cites to
paragraph 4 in the Bankruptcy Order lifting the automatic stay. (ECF No. 71-1). On September
30, 2025, the Court entered an Order directing that this Addendum be properly relabeled as a
Motion, and directed Defendants to file a Response no later than October 14, 2025. (ECF No. 71).
Defendants filed their Response on October 14, 2025. (ECF No. 73). Defendants noted
that this Motion was similar to one Plaintiff had already filed in the bankruptcy case. (Id. at 1).
They further noted that the Bankruptcy Judge had held a hearing on September 24, 2025, and had
taken the matter under advisement. (Id. at 1-2). 	Defendants asked that this Court abstain from
making a determination on the issue of whether Plaintiff can proceed against Wellpath as a nominal
Defendant. 	(Id. at 3). 	On October 20, 2025, the Court entered an Order an Order denying
Plaintiff’s Motion to Proceed Against Wellpath LLC as a nominal Defendant. (ECF No. 74). The
case was stayed an administratively terminated pending a ruling by the Bankruptcy case. (Id.).
On January 28, 2026, Defendants filed a Status Report. (ECF No. 82). They note that the
Bankruptcy Court had ruled on the Plaintiff’s Motion and attached a copy of that Order. (Id.). On
February 9, 2026, the Court entered a Show Cause Order in the case. (ECF No. 83). This Order
lifted the case stay and directed Defendants to show cause as to the effect of the Bankruptcy
Court’s Order on Plaintiff’s claims in this case. (Id.). On March 2, 2026, Defendants submitted a
Status Report. (ECF No. 85). They state: “Plaintiff is a holder of an unsecured claim arising from
an alleged pre-petition claim. Pursuant to the Orders of the United States Bankruptcy Court for
the Southern District of Texas, Plaintiff may proceed against the Wellpath Liquidating Trust as a
nominal defendant and claims against Wellpath, LLC should be dismissed.” (Id. at 1). They attach
the Revised and Amended Clarifying Order by the Bankruptcy Court. 	Regarding including the
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Wellpath Liquidating Trust as a nominal Defendant, the Bankruptcy Court states in Paragraph
One:
In accordance with Article IV.J of the TDPs, Holders of General Unsecured Claims
arising from alleged pre-petition personal injury tort or wrongful death may
“proceed in the appropriate civil court and litigate such claim with the [Trust]
included as a nominal defendant.” (emphasis added). As a nominal defendant, the
Trust is not required to file answers, participate in discovery or hearings, or take an
active role in any such litigation; provided, however, that nothing herein or in the
Plan or TDPs shall prevent the Trust from participating in any such case at the
direction of the Trustee or engaging in settlement discussions for purposes of
determining stipulated Allowed Claim Amounts at the discretion of the Trustee.
(ECF No. 85-1 at 2, ¶1). 	In Paragraph Two, the Bankruptcy Court emphasizes that; “The Plan
does not permit any party to proceed against the Post-Restructuring Debtors or any Debtor,
including but not limited to Wellpath LLC, in any capacity, including as a nominal defendant.”
(Id.).
On March 6, 2026, the Court directed the Clerk to add the Wellpath Liquidating Trust as a
nominal Defendant in this case. (ECF No. 86).
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
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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 Against Wellpath
Employees Daniel, Gardner and Horan
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
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 December 2020 through January 13, 2023. 	See (ECF No. 17).
Accordingly, the Bankruptcy Court 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
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1254, 1257 (8th Cir. 2010). Plaintiff’s claims against the individual Wellpath Defendants in their
official capacities should therefore also be dismissed for the same reason.
As Wellpath is the only remaining Defendant for Plaintiff’s claims concerning her
prosthetic limb, Claim One is subject to dismissal pursuant to the Plan. In Claim Three, regarding
unidentified medication refills, the only remaining Defendants are Wellpath and Defendant
Gardner. 	Claim Three is barred against Wellpath by the Plan. 	Her claim against Defendant
Gardner is subject to dismissal because she made no specific factual allegations concerning
Defendant Gardner for this claim. Even a pro se Plaintiff must still allege specific facts sufficient
to support a claim. 	See, Martin v. Sargent, 780 F.2d 1334, 1337 (8th Cir. 1985). 	This leaves
Plaintiff’s Claim Two, concerning her dry eye condition.
B. 	Claim Two: Denial of Medical Care Claim Regarding Plaintiff’s Dry Eye Condition
Against Defendants Daniel, Gardner and Horan
Questions of material fact remain in the Summary Judgment record concerning the
individual capacity claims against Defendants Daniel and Horan. 	Defendants submitted an
affidavit by Dr. Braswell stating that the care given for Plaintiff’s eyes was “appropriate and
adequate.” (ECF No. 54-2 at 2). Plaintiff disputes this, and has submitted an expert opinion from
a prior case in this District, De Rossitte v. Vowell, Case No. 6:17-cv-06043. (ECF No. 64-4). This
case addressed earlier claims concerning her eye conditions, but the review of records included the
March 2022 UAMS emergency hospitalization. 	(Id.). 	Laura Mayfield, DNP, APRN, FNP-BC,
concluded:
In March 2022, Mr. De Rossitte was taken to the Emergency Department at UAMS.
The medical records indicate a possible hypopyon or a collection of white blood
cells coating the cornea of his eye, which is indicative of a serious infection. Mr.
De Rossitte was admitted to UAMS ICU for ten days for inpatient treatment and
IV antibiotics. He was diagnosed with a corneal ulcer, decreased vision, and corneal
defects. Had Mr. De Rossitte [’s] complaints been taken seriously and if he had
previously received adequate care for his eye conditions, this could have been
avoided.
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(Id. at 8). The case settled and was dismissed with prejudice on September 12, 2022. (Case No.
6:17-cv-06043, ECF No. 225).
Defendant Horan does not address Plaintiff’s eye care in his affidavit. 	(ECF No. 54-1).
Plaintiff has provided a sick call record for January 7, 2022, with APN Tracey Franklin. (ECF No.
64-3 at 28-30). 	In it, she noted that Plaintiff had inflammation, swelling, redness and impaired
vision in both eyes, with the left eye being worse. (Id. at 2). She discussed the case with Defendant
Daniel, 	who 	believed 	that 	Plaintiff 	“may 	place 	foreign 	objects 	in 	eyes 	causing 	some
inflammation.” (Id.). She states she wanted Plaintiff to be “evaluated as soon as possible in outside
clinic as optometry may not be at ORCU until March of 2022.” (Id.). She requested an outside
ophthalmology 	evaluation. 	(Id.). 	A 	notation 	in 	the 	record 	indicates 	Defendant 	Horan
recommended alternative treatment, but the record does not specify that treatment. (Id. at 3).2F
3
Plaintiff submitted a copy of ADC Grievance OR-22-00185, and the Health Services grievance
response, which indicates that Defendant Horan denied the outside consult, and instead
recommended that Plaintiff wait to see the onsite optometrist before going to the outside
ophthalmologist. (ECF No. 64-3 at 43).
Defendants indicate that Defendant Daniel repeatedly ordered refills for Plaintiff’s
prescribed medication for Plaintiff’s eyes prior to his March 2022 UAMS hospitalization. (ECF
No. 54 at 3, 5-6). 	Plaintiff disputes this, stating that he began having issues with receiving his
prescribed eye drops, ointment, and eyelid wipes starting in mid-November 2021. (ECF No. 64 at
16). He provides copies of numerous inmate health issue kiosk requests concerning missing refills
concerning his eyes and other health issues leading up to his March 2022 hospitalization. (ECF
3 The Court notes that Defendants’ Exhibit 24 for this encounter stopped at page 2 and did not
include the notation concerning Horan. (ECF No. 54-24).
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No. 64 at 21-28). The requests continue to note issues with refills after he returned from UAMS.
(ECF No. 64 at 1-21). Defendants state that Defendant Daniel ordered that Plaintiff have follow-
ups with the onsite optometry clinic as needed. (ECF No. 54 at 2, 3, 5, 6). Plaintiff disputes this,
stating that “Daniel did not order a follow-up. He (copy-and-pasting as is his wont) simply noted
periodic eye exam as needed. 	For such to occur, Ms. De Rossitte, no different than any other
inmate, would have to submit a Health Services Request.” (ECF No. 63 at 7, 9, 10). Additionally,
some comments by Defendant Daniel indicate that he believed that Plaintiff was deliberately doing
something to himself make his eyes red and inflamed. For example, in his notes for the January
11, 2022, health services encounter, he stated “Concern for suspected self-inflicted eye inoculation
with foreign substance.” He also notes Plaintiff is “obsessing” about antibiotics. (ECF No. 54-25
at 1-2). On a January 14, 2022, visit, Daniel noted that Plaintiff eyes had improved prior to getting
antibiotics today, and Plaintiff reported his eyes improved after 1 dose of antibiotic today. (ECF
No. 54-26). 	Thus, at least two material questions of facts remain concerning the personal
involvement of Defendants Horan and Daniel concerning Plaintiff’s denial of care for his dry eye
condition.
In contrast, Plaintiff’s only allegation concerning Gardner in Claim Two (eye issues) is that
she and Defendant Horan denied her ophthalmological care. In her Plaintiff’s Statement of Facts,
he does not mention Gardner in the section about her denial of eye care. (ECF No. 64 at 14-26).
In the section he dedicated to Defendant Gardner, he states he sent a letter to Wellpath’s corporate
parent H.I.G. Capital concerning Gardner’s “misdeeds,” but does not identify any specific actions
or inactions by Gardner. 	(ECF No. 64 at 33-34). 	In his Brief, Plaintiff appears to state that
Wellpath staff, including Wellpath Ombudsman Gardner, “actively seek to thwart the grievance
process.” (ECF No. 62 at 8). Plaintiff attached Grievance OR-21-00722, which was submitted on
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October 5, 2021, prior to the date which Plaintiff alleges he started having difficulty obtaining
refills for his eyes for this case. In this grievance, he alleges that Defendant Gardner was
intentionally delaying his grievances and/or her responses to his grievances. (ECF No. 64-5 at 34-
36). This grievance was found to be without merit, and a review of the grievances mentioned did
not indicate any delay on the part of Gardner. (Id.). No mention of Plaintiff’s eye condition was
contained in the grievance. 	Thus, Plaintiff has provided no objective evidence in the summary
judgment record that Defendant Gardner denied him ophthalmological care. 	Nor does Plaintiff
have a constitutional right to what she considers a prompt grievance process, or any grievance
process at all. The Eighth Circuit has made it clear prisoners do not have a constitutional right to
a prison grievance procedure. 	Lomholt v. Holder, 287 F.3d 683, 684 (8th Cir. 2002) (no claim
when “various defendants denied his grievances or otherwise refused to help him”); Buckley v.
Barlow, 997 F.2d 494, 495 (8th Cir.1993) (no claim when defendants failed to timely and properly
respond to a grievance). 	Thus, a prison official's failure to properly respond to a grievance,
standing alone, is not actionable under § 1983. 	Id. 	Thus, Defendant Gardner is entitled to
summary judgment as a matter of law.
IV. CONCLUSION
Accordingly, it is RECOMMENDED that Defendants’ Motion for Summary Judgment on
the Merits (ECF No. 52) be GRANTED IN PART AND DENIED IN PART:
1. 	Defendant Wellpath LLC should be TERMINATED as a Defendant in this case;
2. 	Doe Wellpath Administrators should be TERMINATED as a Defendant in this case;
3. 	Plaintiff’s Claims One and Three should be DISMISSED WITH PREJUDICE;
4. 	The Motion should be GRANTED as to Defendant Gardner on Claim Two, and she
should be TERMINATED as a Defendant in this case.
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5. 	The Motion should be DENIED as to Defendants Daniel and Horan on Claim Two
for denial of medical care for Plaintiff’s eye conditions.
Referral Status: This case should remain referred for all matters not recommended for
dismissal in this Report and Recommendation.
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 6th day of March 2026.
/s/ Christy Comstock
HON. CHRISTY COMSTOCK
UNITED STATES MAGISTRATE JUDGE
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