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Roberts v. McKinney

United States District Court, W.D. Arkansas, Hot Springs Division

February 23, 2015

DERRICK ROBERTS, Plaintiff,
v.
DR. GREGORY McKINNEY; TIM VALOON, Health Services Administrator, Ouachita River Unit, Arkansas Department of Correction; and DEPUTY DIRECTOR WENDY KELLY, Defendants.

REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE

BARRY A. BRYANT, Magistrate Judge.

Plaintiff filed this civil action pursuant to the provisions of 42 U.S.C. § 1983 and the Americans with Disabilities Act (ADA). Plaintiff proceeds pro se and in forma pauperis. Pursuant to the provisions of 28 U.S.C. § 636(b)(1) and (3)(2014), the Honorable Robert T. Dawson, United States District Judge, referred this case to the undersigned for the purpose of making a report and recommendation.

Plaintiff is incarcerated in the Ouachita River Unit (ORU) of the Arkansas Department of Correction (ADC). He maintains his rights are being violated by the refusal to allow him to have a power wheelchair and the provision of inadequate assistance to perform basic functions such as showering.

Separate Defendant Wendy Kelly[1] has filed a Motion to Dismiss (ECF No. 15). Plaintiff has not responded to the Motion. The Motion is now ready for decision.

1. Background

According to the allegations of the Complaint, the Plaintiff has muscular dystrophy and scoliosis of the spine. Prior to his incarceration, Plaintiff used a power wheelchair for mobility. Since he has been incarcerated at the ORU, he has only had the use of a manual wheelchair. He alleges the five other inmates with muscular dystrophy have been allowed the use of power wheelchairs.

Plaintiff indicates he cannot move his legs and has very little movement of his hands. He alleges that his condition has been deteriorating and it has become harder to get around.

To use the manual wheelchair, Plaintiff states he must rock back and forth to get it to move. Plaintiff alleges the rocking back and forth causes him pain and is not good for his spine. He asserts that he has been trying to get the use of a power wheelchair approved by Dr. McKinney and Mr. Pratt for two years.[2] Without the frequent assistance of other inmates, Plaintiff states he would not be able to get around.

Plaintiff states he needs assistance to get into and out of bed, to go to the bathroom, wipe his own buttocks, or shower. For a period of time, Plaintiff was given access to a whirlpool tub three times a week with the assistance of a certified nursing assistant (CNA). He no longer has access to the whirlpool and only gets about one shower a week and on one occasion went for two weeks without a shower.

He alleges each Defendant has exhibited deliberate indifference to his serious medical needs, has denied him the Equal Protection of the laws, and has violated the ADA. As relief, Plaintiff seeks declaratory and injunctive relief. He also seeks nominal and punitive damages, court costs, and attorney's fees.

2. Applicable Standard

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). "In order to meet this standard, and survive a motion to dismiss under Rule 12(b)(6), a complaint must contain sufficient factual matter, accepted as true, to state a claim for relief that is plausible on its face.'" Braden v. Wal-Mart Stores, Inc., 588 F.3d 585, 594 (8th Cir. 2009)( quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).

"The plausibility standard requires a plaintiff to show at the pleading stage that success on the merits is more than a sheer possibility.'" Braden, 588 F.3d at 594 ( quoting Iqbal, 556 U.S. at 678). The standard does "not impose a probability requirement at the pleading stage; it simply calls for enough fact to raise a reasonable expectation, " or reasonable inference, that the "defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678; see also Stone v. Harry, 364 F.3d 912, ...


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