United States District Court, W.D. Arkansas, Hot Springs Division
Parham, Plaintiff, Pro Se.
MAGISTRATE JUDGE'S REPORT AND
E. FORD, Magistrate Judge.
Jerry Parham, filed this case pro se pursuant to 42
U.S.C. Â§ 1983 on December 30, 2105, in the Eastern District
of Arkansas. (Doc. 2) The case was properly transferred to
this District on January 4, 2016. (Doc. 4) Pursuant to the
provisions of 28 U.S.C. Â§ 636(b)(1) and (3)(2011), the
Honorable Susan O. Hickey, United States District Judge,
referred this case to the undersigned for the purpose of
making a report and recommendation.
case is before me for preservice screening under the
provisions of the Prison Litigation Reform Act. Pursuant to
28 U.S.C. Â§ 1915A, the Court shall review complaints in civil
actions in which a prisoner seeks redress from a governmental
entity or officer or employee of a governmental entity. 28
U.S.C. Â§ 1915A(a).
is currently incarcerated in the Arkansas Department of
Correction ("ADC"), Ouachita River Unit. (Doc. 2,
p. 3) Plaintiff alleges Defendant Vestal, an LPN for Correct
Care Solutions, denied him his prescribed pain medication on
June 23, 2015. Specifically, at 10:30 a.m. she allegedly told
Officer Hill to call pill call complete "so they
(inmates) will stop coming to the window." Plaintiff was
the next inmate in line. As a result, Plaintiff did not
receive his post-surgery pain medication until late that
night. Plaintiff alleges he suffered excruciating neck pain
as a result. (Doc. 2, pp. 6-7) In support of his claim,
Plaintiff attached grievance OR-15-00705 concerning the
incident. The grievance was found to be with merit at the
initial level. An appeal alleging a second denial of pain
medication on July 29, 2015, was found to be without merit.
proceeds against Defendant Vestal in both her official and
individual capacity. (Doc. 2, p. 5) Plaintiff seeks monetary
damages. (Doc. 2, p. 7)
to the screening provisions of the PLRA, the Court must
determine whether the causes of action stated in
Plaintiff's Complaint (1) are frivolous or malicious, (2)
fail to state claims upon which relief may be granted, or (3)
seek monetary relief against a defendant who is immune from
such relief. See 28 U.S.C. Â§Â§ 1915(e)(2)(B) &
1915(A). A complaint is frivolous if it "lacks an
arguable basis either in law or in fact." Neitzke v.
Williams, 490 U.S. 319, 325 (1989). To state a claim
under 42 U.S.C. Â§ 1983, a plaintiff must allege that a
defendant, acting under color of state law, deprived him of a
right, privilege, or immunity secured by the United States
Constitution or by federal law. West v. Atkins, 487
U.S. 42, 48 (1988).
alleged an official capacity claim against the Defendant.
Defendant Vestal is identified in the complaint as an
employee of Correct Care Solutions ("CCS"). CCS is
a private entity which contracts with correctional facilities
to provide medical care. Here, CCS, by contract, assumed the
ADC's constitutional duty to provide adequate medical
care. When a private entity like CCS contracts with a prison
to provide medical services to inmates, it performs a
function traditionally within the exclusive prerogative of
the states. It thus becomes the functional equivalent of the
municipality and an essential element of its liability is the
existence of a custom or policy. Buckner v. Toro,
116 F.3d 450, 452 (11th Cir. 1997); see also
Burke v. N.D. Dep't of Corr. & Rehab., 294 F.3d
1043, 1044 (8th Cir. 2002) (When a corporation acts under
color of state law, the proper test for determining official
capacity liability is whether a policy, custom, or action by
those whose actions may be said to represent official policy
inflicted the constitutional injury).
has not provided any allegations that his delay in receiving
pain medication was the result of a custom, policy, or action
on the part of CCS. He therefore failed to state a cognizable
official capacity claim against Defendant Vestal.
foregoing reasons, I recommend that Plaintiff's official
capacity claim against Defendant Vestal be DISMISSED without
prejudice pursuant to 28 U.S.C. Â§Â§ 1915(e)(2)(B)(i-iii) and
1915A(a). Plaintiff's individual capacity claim against