United States District Court, E.D. Arkansas, Western Division
Procedure for Filing Objections:
Recommended Disposition (“Recommendation”) has
been sent to Judge James M. Moody Jr. Any party may file
written objections to this Recommendation. Objections must be
specific and must include the factual or legal basis for the
considered, all objections must be received in the office of
the Court Clerk within 14 days of this Recommendation. If no
objections are filed, Judge Moody can adopt this
Recommendation without independently reviewing the record. By
not objecting, parties may waive the right to appeal
questions of fact.
Carlos Ray Browning, who is incarcerated at the Pine Bluff
Unit of the Arkansas Department of Correction
(“ADC”), filed this case without the help of a
lawyer under 42 U.S.C. § 1983. (Docket entry #1) Mr.
Browning is proceeding on deliberate-indifference claims
against Defendants Cook and Burton based on their failure to
provide him prescription Acyclovir; against Defendant McCraw
for failure to ensure the pill cart had Acyclovir; against
Turn Key Health for an unconstitutional policy; for
corrective-inaction against Defendant Pratt; and for state
negligence and medical malpractice claims against the
have now filed a motion for summary judgment on the merits.
(#36) Mr. Browning has filed a response. (#41)
judgment means that the court rules in favor of a party
without the need for a trial. A moving party is entitled to
summary judgment if the evidence, viewed in the light most
favorable to the party on the other side of the lawsuit,
shows that there is no genuine dispute as to any fact that is
important to the outcome of the case. Fed. R.Civ. P. 56;
Celotex Corp. v. Catrett, 477 U.S. 317, 322B23, 106
S.Ct. 2548 (1986); Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 246, 106 S.Ct. 2505 (1986).
Defendants have moved for summary judgment, so they have the
burden of producing evidence showing that there is no real
dispute as to material facts and that those facts demonstrate
that they were not deliberately indifferent, or even
negligent, in addressing Mr. Browning's medical needs. If
they make this showing, Mr. Browning is obligated to produce
evidence of disputed facts that must be decided at a trial.
Torgerson v. City of Rochester, 643 F.3d 1031, 1042
(8th Cir. 2011) (en banc).
March 13, 2017, Mr. Browning was examined by the medical
staff at an intake, and it was noted he had herpes. (#36-1,
p. 1 & 7) On March 15, 2017, medical prescribed Mr.
Browning 400 milligrams of Acyclovir to be taken twice daily.
(#36-1, p. 67) From March 22, 2017 to March 24, 2017, Mr.
Browning missed doses of Acyclovir for three days, which
resulted in a painful out-break on his penis. (#5, p.6)
lawsuit, Mr. Browning claims that he was “denied”
the Acyclovir. (#5, p.6) His medical records show that on
March 22, 2017, his Acyclovir prescription was discontinued
after he refused to take the generic form of the drug.
(#36-1, p. 54, 55, 57) Mr. Browning does not dispute this
fact, but explains that taking Acyclovir twice daily caused
him to suffer headaches. (#41) On March 25, 2017, Mr.
Browning began taking 800 milligrams of Acyclovir once daily.
(#36-1, p. 67) According to Mr. Browning, taking Acyclovir
once daily did not cause headaches. (#41)
Browning alleges that, on March 30, 2017, Defendant Cook did
not give him Acyclovir because it was not in the pill
cart. (#5, p.6) Mr. Browning states that
Defendant McCraw was responsible for ensuring the pill cart
contained appropriate medications, including his Acyclovir.
(#5, p.6) According to Mr. Browning, Defendant Cook stated
that he would return with Acyclovir if he had time, but never
returned with the medication. Later that night, Defendant
Burton told Mr. Browning that she had no Acyclovir on the
pill cart but would return with his medications, but that she
did not return with his Acyclovir that night.
March 31, 2017, Mr. Browning was examined by Pamela Johnson,
APRN, (not a Defendant) to have stiches removed. (#36-1,
p.13) During this visit, Mr. Browning complained of a lesion
on his penis. (#36-1, p.17) Ms. ...