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Pinder v. McDowell

United States District Court, E.D. Arkansas, Pine Bluff Division

January 27, 2017

STEVEN PINDER ADC #123397 PLAINTIFF
v.
ALVA GREEN McDOWELL, et al. DEFENDANTS

          RECOMMENDED DISPOSITION

         I. Procedures for Filing Objections

         This Recommended Disposition (“Recommendation”) has been sent to Judge James M. Moody Jr. You may file written objections to this Recommendation. If you file objections, they must be specific and must include the factual or legal basis for your objection. Your objections must be received in the office of the United States District Court Clerk within fourteen (14) days of this Recommendation.

         If no objections are filed, Judge Moody can adopt this Recommendation without independently reviewing the record. By not objecting, you may also waive any right to appeal questions of fact

         II. Background

         Steven Pinder, an Arkansas Department of Correction (“ADC”) inmate, filed this lawsuit pro se under 42 U.S.C. § 1983, alleging that Defendants acted with deliberate indifference to his serious medical needs and violated his first amendment rights. (Docket entries #2, #13) The Court initially allowed Mr. Pinder to proceed in forma pauperis (IFP), but later revoked his IFP status after determining that he had failed to sufficiently allege that he was in imminent danger of serious physical harm so as to be exempt from the “three strikes” rule. (#49) After Mr. Pinder failed to timely submit the statutory filing fee, the Court dismissed Mr. Pinder's claims, without prejudice. (#64) Mr. Pinder appealed the Court's decision.[1]

         On appeal, the Court of Appeals for the Eighth Circuit granted Mr. Pinder leave to proceed IFP, vacated this Court's orders, and remanded the case for further proceedings. Specifically, the Court stated, “we vacate the district court's orders and remand for the review of the merits of the entire amended complaint.” (#81 at p.3) (emphasis added)

         The ADC Defendants, the Medical Defendants[2], and Maxor Pharmacy moved for summary judgment on Mr. Pinder's claims against them, arguing that he had failed to exhaust his administrative remedies. (#114, #117, #120) The Court, however, denied the motions based on the explicit instructions of the Court of Appeals. (#137)

         Separate Defendant Maxor Correctional Pharmacy Services (“Maxor”) and the ADC Defendants have now moved for summary judgment on the merits of Mr. Pinder's claims. (#160, #174) Mr. Pinder has responded to the motions. (#169, #170, #171, #180, #181, #182, #184, #185, #186) In addition, the Medical Defendants have moved to dismiss Mr. Pinder's claims based on his failure to complete a Health Insurance Portability and Accountability Act (HIIPAA) medical authorization. (#158) Mr. Pinder also has filed a motion for partial summary judgment, two motions to compel, and two motions for preliminary injunctive relief. (#187, #146, #177, #152, #201)

         Based on the evidence in the record, the Court recommends that the Defendants' pending motions for summary judgment (#160, #174) be GRANTED. Mr. Pinder's claims against Maxor, as well as those against the ADC Defendants, should be DISMISSED, with prejudice.[3] In addition, the Medical Defendants' motion for sanctions (#158) should be GRANTED. Mr. Pinder's claims against the Medical Defendants should be DISMISSED, without prejudice. Finally, Mr. Pinder's pending motions (#187, #146, #177, #152, #201) should be DENIED, as moot.

         III. Discussion

         A. Defendants' Motions for Summary Judgment

         1. Standard

         Summary judgment is appropriate only when the evidence, viewed in the light most favorable to the nonmoving party, shows that there is no real dispute about the facts that are important to the outcome of the case. Fed.R.Civ.P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 246, 106 S.Ct. 2505 (1986).

         2. Maxor Correctional Pharmacy Services

         Maxor is a mail-order pharmacy and distributer of pharmaceutical services and supplies to Correct Care Services. On April 7, 2014, Maxor began providing pharmaceutical services and supplies to the Tucker Unit of the ADC. (#195-1 at p.1)

         Between April 7, 2014, and the date that Mr. Pinder filed this lawsuit, September 26, 2014, Mr. Pinder filed two medical grievances related to his prescription medications. (#195-2) Mr. Pinder has conceded that his only claim against Maxor relates to Maxor's administration of his glaucoma medication. (#195-4 at p.11)

         In their motion for summary judgment, Maxor first argues that, although Correct Care Services is a state actor for purposes of liability under 42 U.S.C. § 1983, it is not. At this time, the Eighth Circuit has not so ruled. Accordingly, for purposes of this motion, the Court will assume that Maxor is a state actor.

         Maxor, however, is s a private corporation. “A corporation acting under color of state law will only be held liable under § 1983 for its own unconstitutional policies.” Crumpley-Patterson v. Trinity Lutheran Hosp., 388 F.3d 588, 590 (8th Cir. 2004) (citing Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690, 98 S.Ct. 2018 (1978)). To prove a policy, custom or action, Mr. Pinder must prove “a continuing, widespread, persistent pattern of unconstitutional misconduct” by Maxor's employees; “[d]eliberate indifference to or tacit authorization of such conduct by [Maxor's] policymaking officials after notice to the officials of that misconduct;” and that he “was injured by acts pursuant to [Maxor's] custom, ...


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