United States District Court, W.D. Arkansas, Texarkana Division
CODY S. HOWARD, SR. PLAINTIFF
STEPHEN KING; CAPTAIN GOLDEN; WARDEN JEFFIE WALKER; SHERIFF JACKIE RUNION; and DR. TIMOTHY REYNOLDS DEFENDANTS
O. HICKEY CHIEF UNITED STATES DISTRICT JUDGE.
the Court is the Report and Recommendation filed April 25,
2019, by the Honorable James R. Marschewski, United States
Magistrate Judge for the Western District of Arkansas. (ECF
No. 37). Judge Marschewski recommends that Plaintiff's
Motion for Leave to Appeal In Forma Pauperis
(“IFP”) be denied. (ECF No. 36). Plaintiff has
filed Objections to the Report and Recommendation. (ECF No.
39). The Court finds this matter ripe for consideration.
case is a civil rights action brought pursuant to 42 U.S.C.
§ 1983. Plaintiff is an inmate currently incarcerated in
the Miller County Correctional Facility. Plaintiff filed his
Complaint on August 31, 2018. (ECF No. 1). Plaintiff alleges
that he was denied medical care in the Miller County
Correctional Facility between May 12, 2018, and August 8,
2018. He states that he informed the facility of his sickle
cell disease when he entered the facility, that the
information is in his records, and that he was still refused
treatment and medication for the disease. (Id. at
4-5). Plaintiff also alleges that he suffered “medical
neglect” and racial discrimination in relation to his
September 25, 2018, Defendants King and Reynolds filed a
Motion to Dismiss. (ECF No. 8). The Court referred the matter
to Judge Marschewski. On March 15, 2019, Judge Marschewski
entered a Report and Recommendation which recommended
granting the Motion to Dismiss. The Court adopted Judge
Marschewski's Report and Recommendation in toto.
Consequently, 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
were dismissed without prejudice. (ECF No. 25).
filed his Notice of Appeal on April 9, 2019, and his Motion
to for Leave to Appeal IFP on April 17, 2019. (ECF Nos. 35;
36). The Court referred Plaintiff's Motion for Leave to
Appeal IFP to Judge Marschewski. On April 25, 2019, Judge
Marschewski issued his Report and Recommendation,
recommending that Plaintiff's motion be denied. (ECF No.
37). On May 3, 2019, Plaintiff filed his Objections to Judge
Marschewski's Report and Recommendation. (ECF No. 39).
Marschewski recommends denying Plaintiff's Motion for
Leave to Appeal IFP because after the Court determined that
Plaintiff failed to allege facts sufficient to state a claim,
any attempt to appeal would be frivolous and not taken in
good faith. See 8 U.S.C. § 1915(a)(3) (stating
that an appeal may not be taken IFP if it is not taken in
good faith). Plaintiff objects to the recommendation, arguing
that he has a viable official capacity claim because
Defendants King and Reynolds violated the standard operating
procedures of the Miller County Correctional Facility.
Plaintiff also makes several other miscellaneous objections
as to why an appeal would be taken in good faith.
Evidence of Policy or Custom
Marschewski recommended dismissing Plaintiff's official
capacity claims because Plaintiff failed to identify any
custom or policy of Southern Health Partners,
which violated his constitutional rights. Plaintiff argues
that Miller County Correctional Facility has a policy of
medically screening and treating all inmates and that
Defendants King and Reynolds ignored this policy when they
failed to treat his sickle cell disease and give him a bottom
instant case, Plaintiff did not allege the existence of any
custom or policy in his Complaint. Moreover, a section 1983
claimant cannot recover unless the claimant also proves that
the custom or policy caused a resulting injury. Ricketts
v. City of Columbia, Mo., 36 F.3d 775, 779 (8th Cir.
1994). Plaintiff has failed to allege that that he was
injured as the result of any custom or policy by either the
Miller County Correctional Facility or Southern Health
Partners, Inc. Consequently, any attempt at appeal would be
frivolous. Therefore, this objection does not warrant a
departure from Judge Marschewski's Report and
Plaintiff's Remaining Objections
has also made several other objections to Judge
Marschewski's Report and Recommendation. Specifically,
Plaintiff contends that an appeal would be made in good faith
because (1) Defendant King had a duty to render medical
services in a professional manner, (2) he filed a Supplement
(ECF No. 29) to his Complaint alleging facts upon which
relief could be granted, and (3) he has stated a claim for
denial of medical care and cruel and unusual
consideration, the Court finds that none of these objections
warrant a departure from Judge Marschewski's
recommendation. Plaintiff's objections about Defendant
King's alleged duty and that he has stated claims for
denial of medical care and cruel and unusual punishment are
too vague and conclusory to trigger de novo review
by this Court. However, upon inspection, the objections
do not contain any facts or argument that would cure the
deficiencies in Plaintiff's Complaint. Moreover,
Plaintiff's Supplement (ECF No. 29) does not state any
facts about an alleged ...