United States District Court, W.D. Arkansas, Texarkana Division
O. Hickey United States District Judge.
the Court is Defendants Kevin Murphy and Steve Arnold's
Motion to Dismiss. (ECF No. 18). Plaintiff Craig Shipp filed
a response. (ECF No. 20). The Court finds the matter ripe for
March 26, 2018, Plaintiff, represented by counsel, filed an
amended complaint, asserting Eighth Amendment
cruel-and-unusual-punishment claims and Eighth and Fourteenth
Amendment deliberate-indifference claims pursuant to 42
U.S.C. § 1983, as well as state-law negligence claims
against various Defendants.
times relevant to this suit, Plaintiff was serving a sentence
in the Arkansas Community Correction, Southwest Arkansas
Community Correction Center in Texarkana, Arkansas
(“SWACCC”). Plaintiff is diabetic and alleges
that he requires the use of orthotic shoes to prevent sores
and/or ulcers from forming on his feet as a result of his
alleges that before being transferred to the SWACCC, his
orthotic shoes were taken from him at the Miller County
Detention Center. Plaintiff alleges further that when he was
transferred to the SWACCC on February 1, 2016, he informed
the intake personnel that he was diabetic and required
orthotic shoes for his medical condition. Plaintiff states
that he was told he needed approval for orthotic shoes.
Plaintiff alleges that on the same day, he wrote a formal
complaint to Defendant Arnold, the warden of the SWACCC,
stating that it was medically necessary for him to receive
orthotic shoes. Plaintiff did not receive orthotic shoes at
alleges that he was forced to climb multiple flights of
stairs because he was housed on an upper level of the
facility, and that climbing the stairs without orthotic shoes
caused additional stress on his feet. He alleges that he
applied for elevator use, but the request was denied. On
February 12, 2016, Plaintiff alleges to have advised
Defendant Arnold that he had begun to suffer medical
complications to his feet. Plaintiff alleges to have again
advised Defendant Arnold that he needed orthotic shoes.
Plaintiff also alleges that this request was forwarded to
Separate Defendant Lenora Turner, the medical director at the
SWACCC. (ECF No. 15, p. 6).
alleges that he saw medical staff on February 12, February
16, and February 23, 2016, and did not receive orthotic shoes
during those visits. On February 23, 2016, medical staff
informed Plaintiff that he had a limb-threatening wound and
needed expert debridement,  but Plaintiff alleges that due to
the “policies and procedures and custom or
practice” implemented by certain Defendants, including
Defendants Murphy and Arnold, nearly a week passed before he
received the requested debridement.
unspecified time, Plaintiff alleges to have requested a
transfer to a corrections center in Malvern, Arkansas, which
he states had a better medical department and facility to
manage his diabetic condition. Plaintiff alleges that this
request was denied due to Defendants' policies,
procedures, and protocol.
ultimately received his orthotic shoes more than three weeks
after arriving at the SWACCC. Plaintiff alleges that his foot
was amputated because of the wounds and ulcers that formed
during the time he did not have orthotic shoes. Plaintiff
claims that Defendants' acts, omissions, policies, and
procedures violated his constitutional rights.
March 28, 2018, Defendants Murphy and Arnold filed the
instant motion, arguing that Plaintiff's claims against
them should be dismissed pursuant to Federal Rule of Civil
Procedure 12(b)(6) for failure to state a claim upon which
relief may be granted. Plaintiff opposes the motion.
survive a motion to dismiss under Rule 12(b)(6), a pleading
must provide “a short and plain statement of the claim
that the pleader is entitled to relief.” Fed.R.Civ.P.
8(a)(2). The purpose of this requirement is to “give
the defendant fair notice of what the . . . claim is and the
grounds upon which it rests.” Erickson v.
Pardus, 551 U.S. 89, 93 (2007) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007)). The Court
must accept as true all factual allegations set forth in
Plaintiff's amended complaint and must draw all
reasonable inferences in Plaintiff's favor. See
Ashley Cnty., Ark. v. Pfizer, Inc., 552 F.3d 659, 665
(8th Cir. 2009).
the complaint “must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is
plausible on its face.'” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting
Twombly, 550 U.S. at 570). “A claim has facial
plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
Id. “A pleading that offers ‘labels and
conclusions' or ‘a formulaic recitation of the
elements of a cause of action will not do.' Nor does a
complaint suffice if it tenders ‘naked assertions'
devoid of ‘further factual enhancement.'”
Id. (internal citations and alterations omitted)
(quoting Twombly, 550 U.S. at 555, 557). In other
words, “the pleading standard Rule 8 announces does not
require ‘detailed factual allegations, ' but it
demands more than an unadorned,
Id. (quoting Twombly, 550 U.S. at 555).
considering a motion to dismiss under Rule 12(b)(6),
“the complaint should be read as a whole, not parsed
piece by piece to determine whether each allegation, in
isolation, is plausible.” Braden v. Wal-Mart
Stores, Inc., 588 F.3d 585, 594 (8th Cir. 2009). The
issue in considering such a motion is not whether Plaintiff
will ultimately prevail, but whether Plaintiff is entitled to
present evidence in support of the claim. See Nusku v.
Williams, 490 U.S. 319, 327 (1989). In reviewing a
motion to dismiss under Rule 12(b)(6), the Court is
“not precluded in [its] review of the complaint from
taking notice of items in the public record” or
considering documents that do not contradict the complaint.
Papasan v. Allain, 478 U.S. 265, 269 n.1 (1986);
Stahl v. U.S. Dep't of Agric., 327 F.3d 697, 700
(8th Cir. 2003); Nixon v. Coeur D'Alene Tribe,
164 F.3d 1102, 1107 (8th Cir. 1999).
Murphy and Arnold argue that Plaintiff has failed to allege
facts sufficient to state a claim upon which relief may be
granted against either of them. Accordingly, Defendants
Murphy and Arnold move for dismissal of all claims against
them pursuant to Rule 12(b)(6).
U.S.C. § 1983 provides a federal cause of action for the
deprivation, under color of law, of a citizen's
“rights, privileges, or immunities secured by the
Constitution and laws” of the United States. In order
to state a claim under section 1983, Plaintiff must allege
that Defendants Murphy and Arnold acted under color of state
law and that they violated a right secured by the
Constitution. West v. Atkins, 487 U.S. 42, 48
(1988). The deprivation must be intentional; mere negligence
will not suffice to state a claim for deprivation of a
constitutional right under section 1983. Daniels v.
Williams, 474 U.S. 327, 328 (1986).
appears to assert three types of claims against Defendants
Murphy and Arnold: (1) deliberate indifference under the
Fourteenth Amendment; (2) deliberate indifference under the
Eighth Amendment; and (3) cruel and unusual punishment ...