De Rossitte v. Daniel et al

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HOT SPRINGS DIVISION
IKARA CHRISTIANA EARNESTINE
EUGE VAGANTE DE ROSSITTE 	PLAINTIFF
v. 	Case No. 6:23-cv-06008
WELLPATH, LLC; DR. THOMAS
DANIEL; CHRIS HORAN; CHARLOTTE
GARDNER; DOE WELLPATH ADMINISTRATORS;
and WELLPATH LIQUIDATING TRUST 	DEFENDANTS
ORDER
Before the Court is a Motion to Reconsider (ECF No. 95) and Motion to Stay (ECF No.
96) filed by Plaintiff Ikara Christiana Earnestine Euge Vagante De Rossitte. Defendants have not
responded, and the time to do so has passed. See Local Rule 7.2(b). The Court finds the matters
ripe for consideration.
I. 	BACKGROUND
Plaintiff filed this action on January 13, 2023, and filed an Amended Complaint on
February 27, 2023, at the direction of the Court. ECF Nos. 1, 6, 8. In her Amended Complaint,
Plaintiff alleges three claims arising from events that occurred while she was incarcerated at the
Arkansas Division of Correction (ADC) Ouachita River Unit, Special Needs Unit. 	ECF No. 8.
For 	Claim 	One, 	Plaintiff 	alleges 	that 	Wellpath, 	LLC 	(“Wellpath”) 	and 	Doe 	Wellpath
Administrators denied her medical care by refusing to replace her ill-fitting and unusable prosthetic
leg. Id. at 6-7. For Claim Two, Plaintiff alleges that Defendants Wellpath, Daniel, Horan, Gardner,
and Doe Wellpath Administrators denied her medical care by failing to provide the prescribed
medication and ophthalmological care to treat her dry eye condition. Id. at 7-9. Plaintiff alleges
that she ultimately needed a cornea transplant due to the denial of care and is now legally blind in
her left eye. Id. at 8. For Claim Three, Plaintiff alleges that she was routinely denied refills of her
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medications. 	Id. at 10. 	Plaintiff names Defendants Wellpath, Gardner, and Doe Wellpath
Administrators. Id. Within Claim Three, Plaintiff also alleges that Wellpath sought to undermine
her recourse through the grievance process. 	Id. 	Plaintiff proceeds against Defendants in their
official and individual capacities for all claims.
On June 18, 2024, Defendants filed their Motion for Summary Judgement. ECF No. 52.
On November 20, 2024, while the Motion for Summary Judgment was pending, Defendant
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 States Bankruptcy Judge for
the Southern District of Texas, Houston Division. 	ECF No. 64. 	The bankruptcy case is In re
Wellpath Holdings, Inc., No. 24-90533 (Bankr. S.D. Tex.).1 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 filed a Status Report on the bankruptcy proceedings. ECF
No. 67. This Court lifted the litigation stay on this case and ordered the Wellpath Defendants to
show cause as to the effect of Wellpath’s Bankruptcy Plan or Reorganization (“the Plan”) on
Plaintiff’s claims. ECF No. 68. The Wellpath Defendants filed a response stating that the Plan
permanently enjoins Plaintiff from commencing or continuing any action against Wellpath, and
that Plaintiff had opted-out of the third-party releases in the Plan with respect to her individual
capacity claims against Defendants Daniel, Horan, and Gardner. 	ECF No. 69. 	Wellpath
Defendants stated that Plaintiff’s causes of actions against these Wellpath employees may proceed.
Id.
Plaintiff filed a reply and addendum to the Status Report, asking that Wellpath 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
1 Case No. 24-90533 is the main case docket. All parties filing pro se were directed to file in Case No. 24-90566.
Judge Perez issued the clarifying orders mentioned herein in Case No. 24-90566 (ECF Nos. 1279, 1291).
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Liquidating Trust to seek a determination of their liability for seeking pro rata distribution or third
party insurance proceeds in accordance with the Plan accepted by the U.S. Bankruptcy Court.”
ECF No. 70, 71. In response to Plaintiff’s reply and addendum, Defendants noted that Plaintiff
filed a similar motion in the bankruptcy case and that the Bankruptcy Judge had taken the matter
under advisement. ECF No. 37. Accordingly, the Court denied Plaintiff’s request to add Wellpath
as a nominal Defendant and stayed and administratively terminated the case pending a ruling by
the Bankruptcy Judge. ECF No. 74.
On January 28, 2026, Defendants filed a Status Report stating that the Bankruptcy Judge
had ruled on Plaintiff’s motion. ECF No. 82. This Court subsequently lifted the stay and directed
Defendants to show cause as the effect of the Bankruptcy Court’s Order on Plaintiff’s claims in
this case. ECF No. 83. 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. 	Defendants attached the Revised and
Amended Clarifying Order by the Bankruptcy Court. ECF No. 85-1. 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.
On March 6, 2026, Judge Comstock issued a Report and Recommendation on Defendant’s
Motion for Summary Judgment. ECF No. 87. Judge Comstock first recommends dismissal of all
claims against Wellpath and official capacity claims against Wellpath Employees Daniel, Gardner,
and Horan, pursuant to Article IX of the Plan and the Bankruptcy Court Order confirming that the
Plan forecloses Plaintiff’s claims against Wellpath. 	Id. at 8. 	Judge Comstock reasons that the
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official capacity claims against Wellpath employees should be dismissed because they are
functionally equivalent to a claim against Wellpath itself. Id. Judge Comstock then recommends
that Plaintiff’s Claim One (about the prosthetic limb) be dismissed pursuant to the Plan because
Plaintiff named only Wellpath and Doe Wellpath Administrators. Id. Judge Comstock recommends
that Plaintiff’s Claim Three (about medication refills) be dismissed because Wellpath is barred as
a Defendant pursuant to the Plan and Plaintiff made no specific factual allegations concerning
Defendant Gardner. Id. at 9.
Finally, Judge Comstock considers Plaintiff’s Claim Two (denial of medical care for dry
eye condition). Id. at 9. Judge Comstock found a dispute of material facts as to the involvement
of Defendants Horan and Daniel in denying medical care to Plaintiff and recommends that the
Motion for Summary Judgment be denied as to those two Defendants. Id. at 11. Judge Comstock
found that Plaintiff provided no evidence that Defendant Gardner denied her ophthalmological
care and that Plaintiff has no constitutional right to a grievance procedure. 	Id. at 12. 	Judge
Comstock recommends that summary judgment be granted as to Defendant Gardner. Id.
On March 20, 2026, Plaintiff motioned for a thirty-day extension of time to file her
objections to the Report and Recommendation, which were originally due on March 23, 2026.
ECF No. 89. 	Plaintiff requested a new deadline of April 20, 2026. 	Id. at 2. 	Judge Comstock
granted Plaintiff’s motion and extended the deadline to March 30, 2026. ECF No. 90.
On April 10, 2026, over ten days past Plaintiff’s extended deadline to object, the Court
adopted the Report and Recommendation in toto. 	ECF No. 92. 	The Court reviewed Judge
Comstock’s recommendations for clear error because Plaintiff had not objected. Id. Accordingly,
the Court ruled that only Plaintiff’s Claim Two against Defendants Daniel and Horan may proceed.
Id. at 2.
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On April 13, 2026, after the Court adopted the Report and Recommendation, Plaintiff filed
her objections. 	ECF No. 94. 	Plaintiff subsequently filed an “Immediate Motion to Reconsider
Plaintiff’s Objection to the Magistrate’s Judge’s Report and Recommendation.” ECF No. 95. On
May 5, 2026, Plaintiff filed a Motion to Stay. ECF No. 96.
II. 	DISCUSSION
The Court will first consider Plaintiff’s Motion to Reconsider.
A. 	Motion to Reconsider
Plaintiff moves the Court to reconsider her objections to the Report and Recommendations.
ECF No. 95. The Court assumes Plaintiff is moving to reconsider its order adopting the Report
and Recommendations in toto and to conduct a de novo review of the Report and Recommendation
based on her untimely objections. In support of her Motion to Reconsider, Plaintiff states that she
misread the extended deadline for her objections due to her “left ‘bad’ eye.” 	Id. at 3. 	Plaintiff
states that she believed the deadline had been extended to April 20, 2026, which is the deadline
Plaintiff originally requested. 	Id. 	Defendants have not responded to Plaintiff’s Motion to
Reconsider.
The Federal Rules of Civil Procedure do not account for motions to reconsider. However,
“motions to reconsider are ‘nothing more than Rule 60(b) motions when directed at non-final
orders.’” Nelson v. Am. Home Assur. Co., 702 F.3d 1038, 1043 (8th Cir. 2012) (quoting Elder–
Keep v. Aksamit, 460 F.3d 979, 984 (8th Cir. 2006)). The instant motion is directed at a non-final
order. 	Thus, the Court will consider Plaintiff’s motion to reconsider as it would a Rule 60(b)
motion.
Under Rule 60(b)(1), a district court may grant relief from an order on the grounds of
“mistake, inadvertence, surprise, or excusable neglect.” 	Noah v. Bond Cold Storage, 408 F.3d
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1043, 1045 (8th Cir. 2005). 	Excusable neglect generally encompasses “situations in which the
failure to comply with a filing deadline is attributable to negligence.” Id. (quoting Union Pac. R.R.
v. Progress Rail Servs. Corp., 256 F.3d 781, 782 (8th Cir. 2001)). “To be excusable, the neglect
must be accompanied by a showing of good faith and some reasonable basis for not complying
with the rules.” 	Id. (citation omitted). 	Excusable neglect does not include ignorance or
carelessness on the part of an attorney, mistake of law, or failure to follow the clear dictates of a
court rule. Id. (citations omitted). “Whether a party’s neglect of a deadline may be excused is an
equitable decision turning on ‘all relevant circumstances surrounding the party’s omission.’”
Ceridian Corp. v. SCSC Corp., 212 F.3d 398, 403 (8th Cir. 2000) (quoting Pioneer Inv. Servs. Co.
v. Brunswick Assoc. Ltd. P’ship, 507 U.S. 380, 395 (1993)).
“In assessing whether conduct is excusable, several factors must be taken into account,
including: (1) the danger of prejudice to the non-moving party; (2) the length of the delay and its
potential impact on judicial proceedings; (3) whether the movant acted in good faith; and (4) the
reason for the delay, including whether it was within the reasonable control of the movant.” In re
Guidant Corp. Implantable Defibrillators Prods. Liab. Litig., 496 F.3d 863, 867 (8th Cir. 2007)
(citing Pioneer Inv. Serv. Co., 507 U.S. at 395). 	The reason for delay is the key factor in the
analysis. Id. at 867.
Though there may be some danger of prejudice to the non-moving party, the length of delay
and its potential impact on the judicial proceedings is minimal. Plaintiff filed her objections only
14 days after the deadline. Thus, the Court concludes that the first two factors weigh only slightly
against Plaintiff. As for the third factor, courts have “consistently sought to distinguish between
contumacious or intentional delay or disregard for deadlines and procedural rules, and a ‘marginal
failure’ to meet pleading or other deadlines.” Id. (quoting Johnson v. Dayton Elec. Mfg. Co., 140
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F.3d 781, 784 (8th Cir. 1998). Courts rarely excuse the former. Id. It does not appear to the Court
that Plaintiff has previously intentionally delayed or disregarded deadlines in this case. 	See id.
(finding a party did not act in good faith when they had three opportunities spread over several
months to comply with the court’s orders). Lastly, the Court finds that the reason for delay weighs
in Plaintiff’s favor. 	Plaintiff explains that she mistakenly believed that the order granting her
motion to extend moved her deadline to object to April 20, 2026, because she is unable to see
clearly with her “left ‘bad’ eye.” ECF No. 95, at 3. In part, the Court considers the fact that one of
Plaintiff’s claims in this case is that she has been left legally blind in her left eye due to the denial
of medical care by Defendants. For these reasons, the Court finds that the factors, taken together,
weigh in favor of Plaintiff.
Accordingly, the Court finds reconsideration proper and will consider Plaintiff’s objections
to the Report and Recommendation.
B. 	Plaintiff’s Objections
Plaintiff asserts two objections. ECF No. 94. First, Plaintiff objects to Judge Comstock’s
recommendation that Plaintiff’s claims against Wellpath be dismissed based on the bankruptcy
discharge. 	Id. at 4-6. 	Second, Plaintiff objects to Judge Comstock’s recommendation that
Plaintiff’s Claims Two and Three against Defendant Gardner be dismissed. Id. at 7. The Court
finds that Plaintiff’s objection are specific and will conduct a de novo review of the Report and
Recommendation. See Thompson v. Nix, 897 F.3d 356, 358-59 (8th Cir. 1990) (“objections must
be timely and specific” to trigger de novo review); see also Branch v. Martin, 886 F.2d 1043, 1045
(8th Cir. 1989) (citations omitted) (“When conducting a de novo review, the district court makes
its own determinations of disputed issues and does not decide whether the magistrate’s proposed
findings are clearly erroneous.”).
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The Court will consider each objection separately, beginning with Plaintiff’s claims against
Wellpath.
1. 	Claims against Wellpath, LLC
Plaintiff first objects to Judge Comstock’s recommendation that all claims against Wellpath
and official capacity claims against Wellpath employees be dismissed. Plaintiff argues that Judge
Comstock misconstrued the Bankruptcy Court’s Clarifying Order. Specifically, Plaintiff points to
paragraphs one and three of the Clarifying Order and contends that her claims against Wellpath
should continue to be litigated against the substituting Liquidating Trust, as the nominal defendant,
“to determine culpability, liability, and apportionment for application of the claims to the
Liquidating Trust for pro rata distribution.” ECF No. 98, at 4-6. Plaintiff states that both Judge
Perez and Wellpath’s counsel confirmed that Plaintiff’s understanding was correct during a
bankruptcy hearing. Id. at 5-6. Plaintiff also argues there “is nothing in the Bankruptcy Order or
any other reason to believe” that the official capacity claims against Wellpath employees should
be dismissed rather than continue against the Liquidating Trust. Id. at 6.
The bankruptcy court discharged Wellpath from liability for all claims that arose prior to
November 11, 2024, pursuant to Article IX of the Plan. See In re Wellpath Holdings, Inc., Case
No. 24-90533 (Bankr. S.D. Tex.) (May 1, 2025) (ECF No. 2596, Exhibit A, Article IX.F); see also
11 U.S.C. § 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 allegations against Wellpath and its employees stem from
events that occurred between December 2020 through January 13, 2023. ECF No. 8. Therefore,
Plaintiff cannot proceed against Wellpath following the bankruptcy discharge. The issue here is
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whether Plaintiff may pursue her claims against the Trust as a nominal defendant instead of against
Wellpath.
Paragraph One of the Bankruptcy Clarifying Order states that “Holders of General
Unsecured Claims arising from alleged pre-petition personal injury tort or wrongful death [(the
“Holder”)] may ‘proceed in the appropriate civil court and litigate such claim with the [Trust]
included as a nominal defendant.” ECF No. 85-1, at 2 (emphasis in original). The Court added
Wellpath Liquidating Trust as a nominal defendant accordingly. ECF No. 86.
Plaintiff now contends that the Trust should stand in for Wellpath’s liability as well.
Paragraph Three of the Clarifying Order states that the Holder “must substitute the Liquidating
Trust as a nominal defendant in place of the Post-Restructuring Debtor [Wellpath] in [the]
litigation” where (a) no insurance coverage exists for the claims or (b) (i) there is an applicable
self-insured retention (“SIR”) and (ii) such claim will not exceed the applicable SIR.2 ECF No.
85-1, at 3 (emphasis added). 	The Court notes that after Judge Comstock issued and before the
Court adopted the instant Report and Recommendation, Judge Comstock denied Plaintiff’s motion
to substitute the Trust for Wellpath. ECF No. 91. Judge Comstock considered Plaintiff’s argument
that Paragraph Three of the Clarifying Order applies and denied Plaintiff’s motion because Plaintiff
did not provide any documentation demonstrating that the triggering conditions were met. Id. at
3. Though Plaintiff does not object to Judge Comstock’s ruling in her late objections to the Report
and Recommendation, she argues in her Motion to Stay that it is “impossible” for Plaintiff to prove
that no insurance coverage exists. ECF No. 96, at 3.
2 Paragraph Three of the Clarifying Order goes on to instruct that if substitution of the Trust as a nominal defendant
is required, then that substitution is “procedural only and shall not alter the relevance of [Wellpath’s] conduct, policies,
or actions, nor the scope of discovery reasonably necessary to liquidate a claim or determine liability or
apportionment.” Id. at 3. Further, if Paragraph Three applies, “[t]he Trust may be substituted as a nominal defendant
in any dispositive motion currently pending in any such litigation against [Wellpath].” Id.
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The Court finds Plaintiff’s objections unpersuasive. 	Plaintiff has not demonstrated that
either (a) no insurance coverage exists for her claims or (b) there is an applicable SIR and that
Plaintiff’s claim will not exceed that SIR. See ECF No. 85-1, at 3. However, the Court departs
from the Report and Recommendation in that it recommends dismissal of Plaintiff’s claims
originally alleged against Wellpath with prejudice. Instead, the Court dismisses Plaintiff’s claims
against Wellpath with prejudice in general, and without prejudice only to Plaintiff’s right to seek
substitution of the Trust for purposes of liquidating her claim against the Trust. The Court will
reconsider substituting the Trust for Wellpath pursuant to Paragraph Three of the Bankruptcy
Clarifying Order if Plaintiff provides documentation demonstrating that the required conditions of
Paragraph Three are triggered. See e.g., Callahan v. Clark, No. 1:20-CV-00305-SPB, 2026 WL
994010, at *3 (W.D. Pa. Feb. 11, 2026), report and recommendation adopted, 2026 WL 621922
(W.D. Pa. Mar. 5, 2026) (dismissing a plaintiff’s claims against Wellpath with prejudice based on
the discharge in bankruptcy while noting that such dismissal is “without prejudice to [the
plaintiff’s] right to seek substitution of the Trust in place of Wellpath in this action for purposes of
liquidating his claim against the Trust.”).
Finally, a claim against a Wellpath employee in their official capacity is the functional
equivalent to a claim against Wellpath itself. See Veatch v. Bartels Lutheran Home, 627 F.3d 1254,
1257 (8th Cir. 2010) (“A suit against a government official in his official capacity is functionally
equivalent to a suit against the employing governmental entity.”). The Court finds that Plaintiff’s
official capacity claims against the individual Wellpath Defendants must be dismissed, with the
same condition as Plaintiff’s claims against Wellpath. 	Thus, Plaintiff’s official capacity claims
against Defendants Daniel, Gardner, and Horan are dismissed with prejudice, with the exception
that the Court will reconsider substituting the Trust for those claims if Plaintiff provides
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documentation demonstrating that the required conditions in the Bankruptcy Clarifying Order are
triggered.
2. 	Claims against Defendant Gardner
Plaintiff next objects to Judge Comstock’s recommendation that Plaintiff’s Claims Two
and Three against Defendant Gardner should be dismissed on summary judgment. ECF No. 94,
at 7. For Claim Two, Plaintiff alleges that Defendant Gardner denied her ophthalmological care.
ECF No. 8, at 8. Judge Comstock observed that Plaintiff did not mention Defendant Gardner in
the section about her denial of eye care in her Statement of Facts, that Plaintiff did not identify
specific actions or inactions by Defendant Gardner in the section dedicated to Defendant Gardner
in her Statement of Facts, and that Plaintiff states only that Defendant Gardner “actively seek[s]
to thwart the grievance process” in her Brief. ECF No. 87, at 11-12. Judge Comstock considered
the grievance attached by Plaintiff, in which she alleges that Defendant Gardner intentionally
delayed her grievances, and noted that the grievance was found to be without merit and did not
mention Plaintiff’s eye condition. Id. at 12. For those reasons, Judge Comstock found that Plaintiff
did not provide evidence in the summary judgment record that Defendant Gardner denied her
ophthalmological care. Id. Judge Comstock also found that Plaintiff does not have a constitutional
right to a grievance process in the Eighth Circuit. Id.
For Claim Three, Plaintiff alleges that Wellpath “seeks to undermine recourse through the
grievance process by duplicitous means (Gardner) demonstrating a lack of oversight and a
corporate indifference . . . .” 	ECF No. 8, at 10. 	In the Report and Recommendation, Judge
Comstock found that Plaintiff made no specific factual allegations concerning Defendant Gardner
in Claim Three in her Amended Complaint. 	ECF No. 87, at 9. 	Accordingly, Judge Comstock
recommends that Plaintiffs Claims Two and Three against Defendant Gardner be dismissed.
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In her objections, Plaintiff states that she “specifically addresses [Defendant Gardner’s]
(and Wellpath’s) corrective inaction as the basis of the claims against her[,]” including by
supplying supporting documents as exhibits showing Defendant Gardner was repeatedly made
aware of the failure to provide medications, including for her eyes, and acted to cover up the
problems. 	ECF No. 94, at 7. 	In support, Plaintiff refers the Court to Section III(D) of her
Memorandum Brief (ECF No. 62) and cites her Statement of Facts (ECF No. 64), though she does
not specify the supporting documents to which she refers. Id.
In her Memorandum Brief, Plaintiff argues supervisor liability attaches to Defendant
Gardner because she received notice of a pattern of unconstitutional acts and failed to take
sufficient remedial action.3 ECF No. 62, at 7-8. Plaintiff argues that she sent letters to Wellpath
and Defendant Gardner concerning her claims and that “Defendants have not shown . . .
[Defendant] Gardner undertook any action in response to remediate the issues whatsoever.” Id. at
8. Plaintiff points to the Court to her Exhibits 54-62. Id. Exhibit 54 is Plaintiff’s Grievance No.
OR-21-00722. ECF No. 64-5, at 34-37. In that grievance, Plaintiff grieved that Defendant Gardner
was deliberately attempting to deny her access to the grievance process by delaying her grievances.
Id. The grievance was found to be without merit. Id. It does not concern either Plaintiff’s eye
care or medication refills. Id. Exhibit 55 is Plaintiff’s Grievance No. OR-16-00140, in which she
grieves that she has been suffering from a myriad of eye problems and that medical personnel
refuse to satisfactorily address the infection in her eyes. Id. at 38. It does not mention Defendant
Gardner and is not addressed to her. Id. The grievance response states that Plaintiff’s eyes were
examined by medical professionals at several sick calls due to complaints of eye infections. Id.
3 Defendants argued in their Motion for Summary Judgment that Plaintiff’s claim against Defendant Gardner should
be dismissed to the extent that it is a corrective inaction, or supervisor liability, claim. ECF No. 54, at 5-6. Defendants
argued that a supervisor liability claim against Defendant Gardner should be dismissed because the medical care and
treatment of Plaintiff by Defendants was appropriate and no pattern of unconstitutional behavior exists. Id.
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The rest of the exhibits Plaintiff references are grievances that deal with medical requests (Exhibits
56, 58, 59, 60, 62), retaliation by parties not named in this case (Exhibit 57), and/or assert
intentional delay (Exhibits 56, 57, 61). 	Id. at 39-45. 	Plaintiff does not mention or address
Defendant Gardner in these grievances.
Upon review of Plaintiff’s Statement of Facts, the Court finds that Plaintiff does not state
any facts relating Defendant Gardner to Claim Two (denial of eye care) and that this claim must
be dismissed. 	ECF No. 64, at 14-26. 	For Claim Three, Plaintiff states that Defendant Gardner
was “repeatedly made aware of [Wellpath’s] systemic failure” to timely provide medications. Id.
at 27-28. In a section dedicated to Defendant Gardner, Plaintiff states that she specifically names
Defendant Gardner in her Grievance No. OR-21-00722, discussed above, in which she complains
about Wellpath’s practice of intentionally delaying and preventing the grievance process. Id. at
32. Plaintiff also states that she wrote to Wellpath’s corporate parent H.I.G. Capital in May 2021
“specifically addressing [Defendant] Gardner’s misdeeds in the grievance process.” 	Id. at 33.
Plaintiff sent a copy of that letter to Defendant Gardner. Id. Plaintiff does not otherwise mention
Defendant Gardner in her Statement of Facts.
Plaintiff attempts to assert a claim of supervisor liability against Defendant Gardner at
summary judgment; however, Plaintiff does not allege facts supporting that claim in her Amended
Complaint. 	See ECF No. 8. 	The liberal pleading standard under the Federal Rule of Civil
Procedure 8(a) does not afford a plaintiff with an opportunity to raise new claims at the summary
judgment stage. Frye v. Watson, 804 F. Supp. 3d 866, 872 (W.D. Ark. 2025) (explaining that the
correct procedure for plaintiffs to assert a new claim at the summary judgment stage is to amend
the complaint in accordance with Federal Rule of Civil Procedure 15(a)). 	A plaintiff cannot
“manufacture claims, which were not pled, late into the litigation for the purpose of avoiding
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summary judgment.” N. States Power Co. v. Fed. Transit Admin., 358 F.3d 1050, 1057 (8th Cir.
2004). This applies to plaintiffs proceeding pro se. Though their complaints are to be construed
liberally, pro se plaintiffs must still allege sufficient facts to support the claims advanced. Stone
v. Harry, 364 F.3d 912, 914 (8th Cir. 2004).
Here, Plaintiff alleges only that Defendant Gardner denied her ophthalmological care for
Claim Two. ECF No. 8, at 8. For Claim Three, Plaintiff fails to allege any specific facts against
Defendant Gardner. 	Id. at 10. 	The only mention of Defendant Gardner in Claim Three is
Plaintiff’s allegation that “Wellpath seeks to undermine recourse through the grievance process by
duplicitous means (Gardner) demonstrating a lack of oversight and corporate indifference . . . .”
Id. The Court finds that this off-hand mention of Defendant Gardner does not support a claim of
supervisor liability. See Luckert v. Dodge Cnty., 684 F.3d 808, 817 (8th Cir. 2012) (explaining
that prison supervisors can incur liability in a § 1983 action “for their personal involvement in a
constitutional violation, or when their corrective inaction amounts to deliberate indifference to or
tacit authorization of the violative practices”).
Finally, though the failure to process a prisoner’s grievances, without more, is not
actionable under § 1983, see Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993), the Eighth
Circuit has held that prison staff who design or oversee the grievance procedure “may be held
liable if it result[s] in the denial of constitutionally adequate treatment.” Langford v. Norris, 614
F.3d 445, 464 (8th Cir. 2010) (finding a violation of a prisoner’s rights under the Eighth
Amendment when prisoners were required to funnel medical grievances through an “unwieldy
procedure,” which impeded their ability to receive treatment and exacerbated their injuries).
In the instant case, the Court finds that Plaintiff has not produced evidence showing that
Defendant Gardner designed or oversaw the grievance procedure in a way that impeded her ability
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to receive treatment. 	It appears from Plaintiff’s Statement of Facts that Plaintiff complains of
intentional delays in returning the “[second] step grievances” in order “to prevent inmates from
reaching ‘exhaustion’ (as required under the PLRA) of administrative remedies.” ECF No. 64, at
31. The Court has reviewed Grievance No. OR-21-00722, in which Plaintiff grieves of Defendant
Gardner’s alleged intentional delays returning grievance responses. 	ECF No. 64-5, at 34. 	The
response to that grievance states that ADC policy allows inmates to “move to the next level of the
process” if they have not received a response to their grievance. Id. Since Plaintiff is not prevented
from proceeding with the grievance process, even when the response is delayed, the Court finds
that the grievance procedure does not result in the denial of constitutionally adequate medical care.
Accordingly, the Court finds that Plaintiff’s Claims Two and Three must be dismissed
against Defendant Gardner.
C. 	Motion to Stay
The Court now turns to Plaintiff’s Motion to Stay. Plaintiff moves to stay this matter on
two grounds. 	ECF No. 96. 	First, Plaintiff explains that she scheduled a hearing with the
Bankruptcy Court overseeing the Wellpath bankruptcy to address her “Motion to Affirmatively
Define Claimant’s Claim Under Subsection 3(a) of the Court’s Clarifying Order and her Right to
Proceed Thus in Dispositive Matters” filed with the Bankruptcy Court. 	See In re Wellpath
Holdings, Inc., No. 24-90533 (Bankr. S.D. Tex.) (May 1, 2026) (ECF No. 1610). Plaintiff asks
the Court to stay this matter until the Bankruptcy Court addresses her motion. Upon review of the
Bankruptcy Court docket, it appears that Judge Perez has denied Plaintiff’s motion. Id. (ECF No.
1758). Accordingly, the Court finds that Plaintiff’s first reason for a stay is moot.
Second, Plaintiff requests an emergency stay because East Arkansas Regional Unit
property officers confiscated two-thirds of her legal materials. Plaintiff states that she plans to file
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a motion for a temporary restraining order and preliminary injunction to address the alleged
confiscation. 	ECF No. 96, at 12-14. 	After filing the instant Motion to Stay, Plaintiff filed her
Motion for a Temporary Restraining Order and Superseding Preliminary Injunction. ECF No. 99.
The Court denied Plaintiff’s Motion for a Temporary Restraining Order because the parties
complained of in that motion are not defendants in this case. ECF No. 101. The Court finds that
Plaintiff’s second reason for a stay is also moot.
Accordingly, the Court denies Plaintiff’s Motion to Stay.
III. 	CONCLUSION
Accordingly, the Court GRANTS Plaintiff’s Motion to Reconsider (ECF No. 95). Upon
reconsideration, the Court WITHDRAWS its Order adopting the Report and Recommendation in
toto (ECF No. 92).
The Court further finds that the Report and Recommendation (ECF No. 87) should be and
hereby is ADOPTED IN PART AND DECLINED IN PART. The Court finds the following:
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. 	All of Plaintiff’s claims against Defendant Wellpath, LLC are DISMISSED WITH
PREJUDICE; however, such dismissal is without prejudice to Plaintiff’s right to seek
substitution of the Wellpath Bankruptcy Liquidating Trust in place of Wellpath in this
action for purposes of liquidating her claims against the Trust pursuant to the
Bankruptcy Clarifying Order.
4. 	Plaintiff’s official capacity claims against Defendants Daniel, Horan, and Gardner are
DISMISSED WITH PREJUDICE; however, such dismissal is without prejudice to
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Plaintiff’s right to seek substitution of the Wellpath Bankruptcy Liquidating Trust in
place of Wellpath for the same reasons as stated above.
5. 	Plaintiff’s Claims One and Three in her Amended Complaint (ECF No. 8) are
DISMISSED WITH PREJUDICE.
6. 	The Motion (ECF No. 52) is GRANTED as to Defendant Gardner on Claim Two, and
she is TERMINATED as a Defendant in this case.
7. 	The Motion is DENIED (ECF No. 52) as to Defendants Daniel and Horan on Claim
Two for denial of medical care for Plaintiff’s eye conditions. 	Plaintiff’s individual
capacity Claim Two for denial of medical care may PROCEED against Defendants
Daniel and Horan.
Finally, the Court finds that Plaintiff’s Motion to Stay (ECF No. 96) should be and hereby
is DENIED AS MOOT.
IT IS SO ORDERD, this 29th day of July, 2026.
/s/ Susan O. Hickey
Susan O. Hickey
Senior United States District Judge
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