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Nix v. Vowell

United States District Court, W.D. Arkansas, Hot Springs Division

April 1, 2019

JOHN T. NIX PLAINTIFF
v.
DR. N. VOWELL Correct Care Solutions at Ouachita River Unit, DR. T. DANIEL Correct Care Solutions at Ouachita River Unit, DR. GREGORY MCKINNEY Correct Care Solutions at Ouachita River Unit, DR. JON ALLEN University of Arkansas for Medical Sciences DEFENDANTS

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          HON. MARK E. FORD UNITED STATES MAGISTRATE JUDGE

         Plaintiff proceeds in this matter pro se and in forma pauperis pursuant to 42 U.S.C. § 1983. Pursuant to the provisions of 28 U.S.C. § 636(b)(1) and (3) (2011), the Honorable Susan O. Hickey, Chief United States District Judge, referred this case to the undersigned for the purpose of making a Report and Recommendation.

         The case is before the Court for preservice screening under the provisions of the Prison Litigation Reform Act (PLRA). Pursuant to 28 U.S.C. § 1915A, the Court has the obligation to screen any Complaint in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a).

         I. BACKGROUND

         Plaintiff filed his Complaint on February 5, 2019. (ECF No. 1). On February 6, 2019, the Court entered an Order directing Plaintiff to file an Amended Complaint. (ECF No. 8). Plaintiff did so on February 13, 2019. (ECF No. 10). He then filed a Second Amended Complaint on February 26, 2019. (ECF No. 13).

         Plaintiff alleges his rights were violated by the medical care he received from Correct Care Solutions medical staff starting in July 2015 and ending in November 2019. (ECF No. 13 at 4).

         Specifically, he alleges that he was prescribed the medication Viread for his HIV, which caused him to suffer Stage Three kidney disease. (Id.). Plaintiff alleges that Defendant Allen, a specialist at the University of Arkansas for Medical Sciences, told him Correct Care Solutions would not let him provide Plaintiff with HIV medication that “wouldn't hurt” him “due to cost.” (Id. at 6). This caused him “permanent, painful body damage.” (Id. at 18).

         Plaintiff proceeds against all Defendants in their personal and official capacities. (Id. at 4, 18). He seeks compensatory and punitive damages. (Id. at 20).

         II. LEGAL STANDARD

         Under the PLRA, the Court is obliged to screen the case prior to service of process being issued. The Court must dismiss a complaint, or any portion of it, if it contains claims that: (1) are frivolous, malicious, or fail to state a claim upon which relief may be granted, or (2) seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b).

         A claim is frivolous if “it lacks an arguable basis either in law or fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). A claim fails to state a claim upon which relief may be granted if it does not allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). “In evaluating whether a pro se plaintiff has asserted sufficient facts to state a claim, we hold ‘a pro se complaint, however inartfully pleaded ... to less stringent standards than formal pleadings drafted by lawyers.'” Jackson v. Nixon, 747 F.3d 537, 541 (8th Cir. 2014) (quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007)). Even a pro se Plaintiff must allege specific facts sufficient to support a claim. Martin v. Sargent, 780 F.2d 1334, 1337 (8th Cir. 1985).

         III. ANALYSIS

         A. Statute of Limitations

          Plaintiff alleges his claims begin in July 2015 and end in November 2019[1]. He commenced this action on February 5, 2019. Thus, any of Plaintiff's claims which occurred prior to February 5, 2016 are barred by the statute of limitations. Section 1983 does not contain its own statute of limitation. Instead, causes of action under § 1983 are governed by “the most appropriate or analogous state statute of limitations.” Goodman v. Lukens Steel Co., 482 U.S. 656, 660 (1987) (§ 1981 case). See also Wilson v. Garcia, 471 U.S. 261, 268 (1985) (§ 1983 case); Bell v. Fowler, 99 F.3d 262, 265-266 (8th Cir. 1996) (ยง 1985 case). In Arkansas, this is the three-year personal injury statute of ...


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