United States District Court, W.D. Arkansas, Texarkana Division
CODY S. HOWARD, SR. PLAINTIFF
STEPHEN KING, CAPTAIN GOLDEN, WARDEN JEFFFIE WALKER, SHERIFF JACKIE RUNION and DR. TIMOTHY REYNOLDS DEFENDANTS
MAGISTRATE JUDGE'S REPORT AND
JAMES R. MARSCHEWSKI, UNITED STATES MAGISTRATE JUDGE
a civil rights action provisionally filed 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
before the Court is Plaintiff's Motion to Appeal in
forma pauperis. (ECF No. 36).
filed his Complaint on August 31, 2018. (ECF No. 1).
Plaintiff alleges he was denied medical care in MCCF between
May 12, 2018, and August 8, 2018. He states he informed the
facility of his sickle cell disease when he entered the
facility, the information is in his records, and he was still
refused treatment and medication for the disease.
(Id. at 4-5). Plaintiff also alleges he suffered
“medical neglect” and racial discrimination in
relation to his bunk assignment. He alleges that on August 1,
2018, he asked for a lower bunk assignment or
“scrip” because he had rods and screws in his
leg. Nurse King reviewed his medical records and informed him
he did not qualify for the lower bunk assignment. Plaintiff
alleges that in addition to the rods and pins, his sickle
cell disease negatively affected the strength in his legs. He
alleges the denial also constituted racial discrimination
because a white inmate with “just rods and pins in his
ankle” received a lower bunk assignment. (Id.
names all Defendants for all claims. (Id. at 4, 5).
He proceeds against all Defendants in their official and
personal capacity. (Id.). Plaintiff seeks
compensatory and punitive damages. (Id. at 7).
Plaintiff further states he “would love for them to
just abide by all state and federal guidelines of a
correctional facility and treat all inmates the same.”
September 25, 2018, Defendants King and Reynolds filed a
Motion to Dismiss. (ECF No. 8). They argue Plaintiff failed
to allege any facts to support any official capacity claims
against their employer, Southern Health Partners, Inc. (ECF
No. 8 at 1). They further argue Plaintiff has failed to
allege any facts indicating that they were deliberately
indifferent to Plaintiff's medical needs. (Id.
at 2). Defendant Reynolds argues Plaintiff failed to allege
any facts which would support an Equal Protection claim
against him. (Id. at 1).
March 15, 2019, the undersigned entered a Report and
Recommendation which recommended that the Motion to Dismiss
by Defendants King and Reynolds (ECF No. 8) be granted, and
Plaintiff's official capacity and denial of medical care
claims against Defendants King and Reynolds, as well as his
Equal Protection claim against Defendant Reynolds be
dismissed without prejudice. (ECF No. 25). Plaintiff filed a
Supplement and an Objection to the Report and Recommendation.
(ECF Nos. 29, 31). Defendants King and Reynolds filed a
Response to both documents. (ECF No. 30). Defendant Golden,
Runion, and Walker filed a Response as well. (ECF No. 32).
April 3, 2019, the Report and Recommendation was adopted
in toto. (ECF No. 36). Plaintiff's personal
capacity Equal Protection claim against Defendant King, and
his claims against Defendants Golden, Runion and Walker
remain at this time. Summary Judgment motions in this case
are due by June 7, 2019. (ECF No. 18).
filed his Notice of Appeal on April 9, 2019, and his Motion
to Appeal IFP on April 17, 2019. (ECF Nos. 35, 36).
U.S.C. § 1915 governs applications for leave to appeal
in forma pauperis. 28 U.S.C. § 1915(a)(1)
“. . . any court of the United States may authorize the
commencement, prosecution or defense of any suit, action or
proceeding, civil or criminal, or appeal therein, without
prepayment of fees or security therefore, by a person who
submits an affidavit that includes a statement of all assets
such prisoner possesses that the person is unable to pay such
fees or give security therefor. Such affidavit shall state
the nature of the action, defense or appeal and affiant's
belief that the person is entitled to redress.”
U.S.C. § 1915(a)(3) provides that “[a]n appeal may
not be taken in forma pauperis if the trial court
certifies in writing that it is not taken in good
faith.” “Good faith, ” within the meaning
of the statute, must be judged by an objective and not
subjective standard, and a litigant's good faith is
demonstrated when he seeks appellate review of any issue ...