United States District Court, E.D. Arkansas, Pine Bluff Division
RAY UNITED STATES MAGISTRATE STATES.
following Recommended Disposition
(“Recommendation”) has been sent to United States
District Judge D.P. Marshall Jr. You may file written
objections to all or part of this Recommendation. If you do
so, those objections must: (1) specifically explain the
factual and/or legal basis for your objection; and (2) be
received by the Clerk of this Court within fourteen (14) days
of the date of this Recommendation. If you do not file
objections, Judge Marshall can adopt this Recommendation
without independently reviewing all of the evidence in the
record. By not objecting, you may waive the right to appeal
questions of fact.
Nicholas Carpenter (“Carpenter”) is a prisoner at
the Delta Regional Unit of the Arkansas Department of
Correction (“ADC”). He has filed a pro
se § 1983 Complaint and Amended Complaint alleging
that Defendants violated his constitutional rights. Docs. 2
& 5. Before Carpenter may proceed with this
case, the Court must screen his allegations.
Complaint and Amended Complaint, Carpenter alleges that,
while incarcerated in the ADC in February 2012, he fell and
fractured his jaw and was taken to Little Rock for surgery.
He alleges that Defendant Dr. Hugh Burnett (“Dr.
Burnett”), an oral surgeon, “misplaced” a
wire in his upper gums when performing the surgery. According
to Carpenter, when he returned for follow-up, Dr. Burnett
“accidently” left the wire in his upper gums and
it “still protrudes out of [his] gums.” Carpenter
alleges that, after the surgery, he was not aware of the
existing wire “for a long period of time, ” and
that, in December 2016 (i.e., eighteen months before
filing his Amended Complaint), he started experiencing pain
and bleeding in his upper teeth and gums, with the wire
“constantly scratching and rubbing [his] cheek.”
He has trouble eating, chewing, brushing his teeth, talking,
smiling and laughing. Carpenter seeks damages from Dr.
Burnett, in his individual capacity. Doc. 2 at 4; Doc. 5 at 4
Arkansas Department of Correction
Complaint, Carpenter named the ADC as a Defendant. Doc. 2 at
1. In his Amended Complaint, he names only Dr. Burnett as a
Defendant. Doc. 5 at 2 & 7. Because state
agencies, such as the ADC, are not “persons” that
can be sued under § 1983 for damages or injunctive
relief, Carpenter cannot, as a matter of law, name the ADC as
a Defendant. See Howlett v. Rose, 496 U.S. 356, 365
(1990); Brown v. Missouri Dep't of Corrections,
353 F.3d 1038, 1041 (8th Cir. 2004). This may explain why, in
his Amended Complaint, Carpenter has not named or asserted
any claims against the ADC.
interest of clarifying the pleadings, the Court should
dismiss the ADC as a party to this action, based on it having
been named only in the Complaint.
establish an inadequate medical care claim that rises to the
level of an Eighth Amendment violation, Carpenter must show
that Dr. Burnett acted with “deliberate
indifference.” Barr v. Pearson, 909 F.3d 919,
921 (8th Cir. 2018). This requires Carpenter to show that: (1)
he had “an objectively serious medical
need”;and (2) Dr. Burnett subjectively knew of,
but deliberately disregarded, that serious medical need.
Id. Deliberate indifference requires a “mental
state ‘equivalent to criminal-law
recklessness.'” Id. Thus, Carpenter must
show “more than negligence, more even than gross
negligence, ” on the part of Dr. Burnett. Jackson
v. Buckman, 756 F.3d 1060, 1065-66 (8th Cir. 2014);
see Estelle v. Gamble, 429 U.S. 97, 106 (1976)
(“Medical malpractice does not become a constitutional
violation merely because the victim is a prisoner.”).
Instead, to show deliberate indifference, Carpenter must
demonstrate that Dr. Burnett's actions were “so
inappropriate as to evidence intentional maltreatment or a
refusal to provide essential care.” Jackson,
756 F.3d at 1066.
30, 2018, the Court entered an Order (Doc. 4) that required
Carpenter to file an Amended Complaint that explained his
factual basis for claiming that Dr. Burnett provided him with
inadequate medical care. In his Amended Complaint, Carpenter
stated the following: (1) Dr. Burnett “misplaced”
a wire in Carpenter's upper gums when performing oral
surgery in 2012; (2) when later removing all the wires from
Carpenter's mouth, Dr. Burnett “forgot” about
the wire in Carpenter's upper gums and “failed to
follow proper procedure”; (3) several years later, the
wire began protruding from Carpenter's gums; and (4) this
was due to the “mistake” by Dr. Burnett, who
should be held responsible for the “improper
procedure” and “inadequate medical care.”
Doc. 5 at 6-7.
allegations, viewed in a light most favorable to him, suggest
that Dr. Burnett, at most, was guilty of negligence or,
possibly, gross negligence. However, nothing in those
allegations suggests that Dr. Burnett's alleged conduct
rose to the level of “deliberate indifference, ”
as required to plead a viable Eighth Amendment claim.
Carpenter has not pled a viable inadequate medical care claim
against Dr. Burnett, the Court recommends that this case be
dismissed, without prejudice, for failing ...