United States District Court, W.D. Arkansas, Fayetteville Division
OPINION AND ORDER
HOLMES, III CHIEF U.S. DISTRICT JUDGE
a civil rights action filed by the Plaintiff pursuant to 42
U.S.C. § 1983. Plaintiff proceeds pro se and
in forma pauperis.
claims asserted in this case arose when Plaintiff was
incarcerated in the Benton County Detention Center
(“BCDC”). Specifically, Plaintiff contends his
constitutional rights were violated when: (1) he was given
the wrong medication by Nurse Hall; and (2) he was denied
medical attention when the medication made him physically
ill. Plaintiff has sued Nurse Hall in both her individual and
September 13, 2018, Nurse Hall filed a Motion for Summary
Judgment (ECF No. 17). The following day, an Order (ECF No.
20) was entered directing Plaintiff to file a response to the
Motion for Summary Judgment by October 5, 2018. Plaintiff was
advised that failure to comply with the Court's Orders
(ECF No. 20) would result in: (a) all of the facts set forth
by the Defendant in the summary judgment papers being deemed
admitted by Plaintiff, pursuant to Rule 56.1(c) of the Local
Rules for the Eastern and Western Districts of Arkansas;
and/or (b) shall subject this case to dismissal, without
prejudice, pursuant to Local Rule 5.5(c)(2).
the local rules allow the Court to deem these facts as
admitted when a plaintiff does not file a response
specifically disputing those facts, the Eighth Circuit has
[a] plaintiff's verified complaint is the equivalent of
an affidavit for purposes of summary judgment, and a
complaint signed and dated as true under penalty of perjury
satisfies the requirement of a verified complaint, 28 U.S.C.
§ 1746. Although a party may not generally rest on his
pleadings to create a fact issue sufficient to survive
summary judgment, the facts alleged in a verified complaint
need not be repeated in a responsive affidavit in order to
survive summary judgment motion.
Roberson v. Hayti Police Dep't., 241 F.3d 992,
994-995 (8th Cir. 2001). Therefore, the Court will
“piece together [Plaintiff' s] version of the
facts from the verified complaint. . . .”
McClanahan v. Young, No. 4:13-cv-04140, 2016 WL
520983, *1 (D.S.D. Feb. 5, 2016). Those portions of the
Defendant's statement of material facts that do not
conflict with [Plaintiff's verified complaint] are deemed
was booked into the BCDC on January 8, 2018. (ECF No. 19-1 at
1). Southern Health Partners, Inc., (“SHP”) was
under contract with Benton County to provide healthcare
services to inmates housed at the BCDC. (Id.). At
all times relevant to this case, Nurse Hall was an employee
of SHP. (Id.).
January 14, 2018, Plaintiff submitted a kiosk request to see
the dentist and the doctor to get his medications. (ECF No.
19-2 at 2). On January 15, 2018, he was placed on the dentist
list. (Id. at 4).
January 18, 2018, Plaintiff underwent a medical screening
where he indicated he had broken teeth that were causing him
pain. (ECF No. 19-3 at 5). On January 24, 2018, Plaintiff was
seen by the dentist, diagnosed with chronic abscesses, and
multiple teeth were extracted. (ECF No. 19-2 at 7). Plaintiff
was initially prescribed Clindamycin 800 mg, twice a day, and
Motrin 800 mg, twice a day. (ECF No. 19-2 at 9). The order
was revised that same day to Clindamycin 150 mg, twice a day,
and Ibuprofen 800 mg, twice a day. (Id.). According
to the affidavit of Nurse Hall, on the evening of January 24,
2018, she gave Plaintiff Clindamycin 150 mg. and Ibuprofen
800 mg as prescribed. (ECF No. 19-1 at 2). The medication
administration record also indicates these were the
medications given Plaintiff on January 24, 2018. (ECF No.
19-2 at 10).
to the allegations of the Complaint (ECF No. 1), during the
evening medication pass on January 24, 2018, Nurse
mistakenly gave the Plaintiff Jeffrey E. Fenwick's
medications instead of his own. Plaintiff asserts that he
became physically ill but was denied medical attention and
was not told what medication he had been given. However,
Plaintiff indicates he was given a benzodiazepine “and
lost [his] sobriety date” as a result.
January 25, 2018, Plaintiff submitted a kiosk entry stating:
“last night at med pass I was given a bunch of pills to
take by the nurse that were not ordered for me to take which
I was not aware of until this morning I want to know what I
took thank you.” (ECF No. 19-1 at 2); (ECF No. 19-2 at
2). Nurse Heather Trimmer responded that the medications were
from the dentist. (Id.). Nurse Trimmer asked if
Plaintiff would like to stop the medications. (Id.).
Plaintiff indicated he would like to continue them.
note submitted later that day, Plaintiff stated: “I
just want to know what I was given last night at med pass
because that was my original question. I feel like y'all
gave me the wrong meds and now you are trying to cover your
tracks. I will take legal action if I must.” (ECF No.
19-2 at 2). On February 4, 2018, Plaintiff submitted a kiosk
entry that said: “I'm filing out a 1983 form due ...