United States District Court, W.D. Arkansas, Hot Springs Division
O. Hickey United States District Judge.
a civil rights action filed pro se by Plaintiff,
Lamar Kemp, under 42 U.S.C. § 1983. Before the Court is
a Motion for Summary Judgment filed by Defendants Correct
Care Solutions, LLC, Dr. Nannette Vowell, and Andrea
Beasley. (ECF No. 36). Plaintiff has filed a
Response and Supplement to Response. (ECF Nos. 43, 63).
Defendants have filed a Reply. (ECF No. 49). Plaintiff filed
a sur-reply. (ECF No. 57). The Court finds this matter ripe
claims in this action arise from alleged incidents that
occurred between September 20, 2013, and August 2017 while he
was incarcerated in the Arkansas Department of
Correction's (“ADC”) Ouachita River
Correctional Unit (“ORCU”). Viewed in the
light most favorable to Plaintiff, the relevant facts are as
suffered a spinal cord injury in 1969. (ECF No. 37, ¶
42). Over time, his physical condition has deteriorated and
he suffers from weakness on his left side and foot drop. One
of Plaintiff's legs is shorter than the other, he suffers
from extreme pain, and has difficulty standing or walking.
(ECF No. 37-4, p. 14). Plaintiff has been using a wheelchair
since sometime in 2011. (ECF No. 37-2, pp. 20-22). In 2012,
he was fitted for and received an ankle/foot brace and shoes.
Plaintiff describes these shoes as high-top sneakers that
enable him to use his brace and help him move about in his
wheelchair. (ECF No. 37-5, p. 25). In 2013, Plaintiff began
experiencing symptoms of kidney failure. (ECF No. 37-5, pp.
52-53). Plaintiff was transferred to the ORCU from the Tucker
Unit of the ADC on September 20, 2013, in part so that the
medical team could monitor his kidneys to see if he needed
dialysis. Prior to being transferred to the ORCU,
Plaintiff used his wheelchair, brace, and wore his shoes
regularly to assist him with mobility. When Plaintiff was
transferred to the ORCU, his high-top shoes were not sent
in November or December of 2013, Dr. Nanette Vowell called
Plaintiff to the day clinic and ordered Plaintiff to get out
of his wheelchair and walk. Plaintiff stood up but refused to
try and walk on the cement floor without his high-top shoes.
As a result, the wheelchair was taken from him. (ECF No. 1,
p. 6). Dr. Vowell informed Plaintiff that he did not need
tennis shoes if he was going to primarily use the wheelchair.
Id. Plaintiff was then sent to lockup without his
wheelchair. In December of 2013, Plaintiff wrote to the
Spinal Cord Commission explaining that his wheelchair had
been taken from him by Dr. Vowell. In February of 2014,
Plaintiff was issued a wheelchair by the Spinal Cord
medical records indicate he was prescribed 50 milligrams of
Tramadol and 300 milligrams of Gabapentin for pain beginning
in 2014. (ECF No. 37-4, p. 14). Plaintiff took each of these
medications three times a day until sometime in 2017. (ECF
No. 37-5, pp. 46-47). At some point, Dr. Vowell discontinued
Plaintiff's Tramadol and reduced his dosage of
Gabapentin. The medical records are not clear as to exactly
when or why Dr. Vowell made a change to Plaintiff's pain
medication. Plaintiff is no longer taking any medication for
pain even though he has a prescription for Gabapentin because
he claims the decreased dosage does not work. (ECF No. 37-5,
in April 2017, Plaintiff met with Andrea Beasley about
starting physical therapy, so he could work on his leg
strength and reevaluate his need for shoes. Beasley measured
Plaintiff for shoes and told him he would begin physical
therapy classes on April 9, 2017. Despite Beasley's
statements, Plaintiff was never permitted to participate in
physical therapy and was not issued high-top shoes. (ECF No.
37-5, pp. 98-99). Beasley is not a doctor and never provided
medical care to Plaintiff. Id. at 98. Plaintiff
states that Beasley “gripes at me at everything.”
Id. at 95.
September 20, 2013, and August 25, 2017, Plaintiff filed the
following fourteen formal medical grievances:
(1) OR-14-01023 requesting his “size 8 ½ high
top Reebok tennis shoes prescribed by doctors” be
ordered. Plaintiff states he has braces made for him by Felix
Limb and Brace and he can't use his leg brace with the
shoes he was issued at the ORCU. (ECF No. 37-2, pp. 1-3).
(2) OR-15-00110 claiming his “14th Amendment
Rights were being violated” and stating he needed help
controlling his high blood pressure. (ECF No. 37-2, pp. 4-6).
(3) OR-15-00659 concerning a request for a restriction to
keep Plaintiff from serving punitive time in isolation due to
the heat. Plaintiff states his nerves are bad from his spinal
injury and the heat aggravated his sinuses. (ECF No. 37-2,
(4) OR-15-00660 regarding a nurse “angrily”
placing a bandage on a wound and rushing him out of the
infirmary. (ECF No. 37-2, pp. 10-12).
(5) OR-15-00708 regarding health complications from exposure
to heat. (ECF No. 37-2, pp. 13-16).
(6) OR-15-00878 requesting a “heat script.” (ECF
No. 37-2, pp. 17-19).
(7) OR-16-01099 submitted June 25, 2016, stating “with
footwear I'll no longer ambulate by wheelchair, look I
use my foots everywhere I go. No. leg rest.” Plaintiff
again requests medical footwear (tennis shoes) previously
prescribed. On August 23, 2016, a response to the grievance
was submitted which states “[t]he provider determines
your medical needs. You have been in a wheelchair since 2011
due to left sided weakness and back issues. The provider does
not provide medical footwear to patients in wheelchairs that
are long term.” (ECF No. 37-2, pp. 20-22).
(8) OR-16-01125 claiming Dr. Vowell denied Plaintiff medical
shoes and the opportunity to see Dr. Felix, a specialist.
Plaintiff stated he has spinal cord damage, can partially
walk and is working to be able to walk. He stated he has had
tennis shoes since 1992 prescribed by an ADC doctor and
“Dr. N. Vowell states I don't walk, I don't
need shoes, yet [I'm] not restricted to this wheelchair
for it has no leg handles so [I'm] forced to use my
[feet] everyday. I [was] issued shoes on every Unit
(Diagnostic, Work Complex, JCJ-CF, Cummins, Varner, Brickeys,
Dermott, Tucker Maximum Security, all in Medical Jacket or
Computer. Please view Medical Jacket and instruct medical
[personnel] to issue me either self sole or tennis
shoes[.]” (ECF No. 37-2, pp. 22-25).
(9) OR-16-01588 grievance relating to change/termination of
pain medications. (ECF No. 37-2, pp. 26- 28).
(10) OR-17-00190 complaining that Dr. Vowell acted with
deliberate indifference to Plaintiff's medical needs by
failing to treat and diagnose his pain and refusing to allow
him to see a foot specialist. (ECF No. 37-2, pp. 29-31).
(11) OR-17-00510 stating that Nurse Robinson intercepted and
returned 95% of Plaintiff's requests, no matter to whom
they are addressed. (ECF No. 37-2, pp. 32-34).
(12) OR-17-00511 regarding denial of footwear and the
weakness of his feet. (ECF No. 37-2, pp. 35-37).
(13) OR-17-00512 regarding pain and suffering Plaintiff was
experiencing while waiting to receive proper medical care at
ORCU and complaining he had been denied medical footwear.
(ECF No. 37-2, pp. 38-40).
(14) OR-17-00727 claiming Dr. Vowell took his wheelchair from
him, denied his numerous medical requests, took him off his
pain medication, and refused to provide blood pressure
medicine. (ECF No. 37-2, pp. 41-44).
filed his Complaint on August 25, 2017, against Correct Care
Solutions, LLC (“CCS”), Dr. Nannette Vowell,
Andrea Beasley, Gwendolyn Hart, Rory Griffin and Wendy Kelly.
(ECF No. 1). Plaintiff alleges Defendants denied him medical
care, violated his rights under the Americans With
Disabilities Act, and retaliated against him for filing
medical grievances. Plaintiff also asserts a claim for
medical malpractice under state law. Id. at p. 15.
Specifically, Plaintiff alleges that Defendant Vowell denied
him medical care when she took his wheelchair from him in
late 2013, refused to issue him previously prescribed medical
shoes,  reduced his pain medications in 2017, and
retaliated against him for contacting the Spinal Cord
Commission and filing medical grievances against her.
Plaintiff alleges Defendant Beasley told him he would be
starting physical therapy which never happened and she
“gripes” at him. Plaintiff sues Defendants in
their official and individual capacities and seeks
compensatory and punitive damages. Id. at p. 14.
14, 2018, Defendants CCS, Vowell, and Beasley filed the
instant motion. Defendants argue they are entitled to summary
judgment because: (1) Plaintiff's claims arising prior to
August 25, 2014, are barred by the statute of limitations;
(2) Plaintiff failed to exhaust his administrative remedies;
(3) Defendants were not deliberately indifferent to
Plaintiff's medical needs; and (4) there is no basis for
official capacity liability. (ECF No. 36). Plaintiff filed
his Response to the motion for summary judgment arguing there
are genuine issues of material fact regarding Plaintiff's
claims for denial of medical care and that Defendants failed
to address Plaintiff's claims for retaliation and medical
malpractice. (ECF No. 43). Defendants filed a Reply arguing
that Plaintiff's claim for retaliation should be
dismissed as a matter of law and Plaintiff's claim for
malpractice should be dismissed because Plaintiff has failed
to provide any expert testimony regarding the applicable
standard of care and the causal link to damages. (ECF No.
judgment is appropriate if, after viewing the facts and all
reasonable inferences in the light most favorable to the
nonmoving party, the record “shows that there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed.R.Civ.P.
56(a); Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986). “Once a party
moving for summary judgment has made a sufficient showing,
the burden rests with the non-moving party to set forth
specific facts, by affidavit or other evidence, showing that
a genuine issue of material fact exists.” Nat'l
Bank of Comm. v. Dow Chem. Co., 165 F.3d 602, 607 (8th
non-moving party “must do more than simply show that
there is some metaphysical doubt as to the material
facts.” Matsushita, 475 U.S. at 586.
“They must show there is sufficient evidence to support
a jury verdict in their favor.” Nat'l
Bank, 165 F.3d at 607 (citing Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 249 (1986)). “A case
founded on speculation or suspicion is insufficient to
survive a motion for summary judgment.” Id.
(citing Metge v. Baehler, 762 F.2d 621, 625 (8th
Cir. 1985)). “When opposing parties tell two different
stories, one of which is blatantly contradicted by the
record, so that no reasonable jury could believe it, a court
should not adopt that version of the facts for purposes of
ruling on a motion for summary judgment.” Scott v.
Harris, 550 U.S. 372, 380 (2007).