IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS HOT SPRINGS DIVISION

VANDY STOVALL PLAINTIFF

v. Civil No. 6:23-CV-06133-SOH-BAB

NURSE ABLES and WELLPATH, LLC DEFENDANTS

MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION This is a civil rights action filed pursuant to

. Pursuant to the provisions of

(b)(1) and (3), 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 pursuant to 28 U.S.C. § 1915A.1 0F Under § 1915A, the Court is required 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 December 13, 2023. (ECF No. 1). Plaintiff is currently incarcerated in the Arkansas Division of Correction (“ADC”) Ouachita River Unit. (Id. at 1-2). He alleges that on October 19, 2023, Defendant Nurse Ables (hereinafter Defendant Ables) told him “I don’t know why you are trying to get your blood sugar checked your not a diabetic.” (Id. at 3). Plaintiff alleges he is going blind in his right eye and has been getting “bad headaches.” (Id. at 4). In his request for relief, Plaintiff states he has been taking metformin for almost two years and “who knows what metformin has done to my body.” (Id. at 5).

1 Enacted as part of the Prison Litigation Reform Act (“PLRA”). Plaintiff proceeds against Defendants in their official capacities alone. (Id. at 4). As his official capacity claim, he states “they are by policy and ADC rules to give you adequate medical care.” (Id.). Plaintiff seeks compensatory damages. He seeks to be granted parole or class 1-c status, $800,000, and “let her know you cannot tell people anything.” (Id.). He further states “I

need her to know this is denial of medical care, wrong diagnosis, and treatment, and inadequate medical care.” (Id.). II. LEGAL STANDARD Under § 1915A, 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,

(1989). An action is malicious when the allegations are known to be false, or it is undertaken for the purpose of harassing or disparaging the named defendants rather than to vindicate a cognizable right. Spencer v. Rhodes,

(E.D.N.C. 1987); In re

Tyler,

(8th Cir. 1988). 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 Atl. Corp. v. Twombly,

(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,

(8th Cir. 2014) (quoting Erickson v. Pardus,

(2007)). This means “that if the essence of an allegation is discernable, even though it is not pleaded with legal nicety, then the district court should construe the complaint in a way that permits the layperson’s claim to be considered within the proper legal framework.” Jackson,

(cleaned up). However, the complaint must still allege specific facts sufficient to support a claim. Martin v. Sargent,

(8th Cir. 1985). III. ANALYSIS Plaintiff’s official capacity claim is subject to dismissal. Under Section 1983, a defendant may be sued in either his individual capacity, or in his official capacity, or in both. In Gorman v.

Bartch,

(8th Cir. 1998), the Eighth Circuit Court of Appeals discussed the distinction between individual and official capacity suits. As explained by the Court in Gorman: “Claims against government actors in their individual capacities differ from those in their official capacities as to the type of conduct that is actionable and as to the type of defense that is available. See Hafer v. Melo,

,

,

(1991). Claims against individuals in their official capacities are equivalent to claims against the entity for which they work; they require proof that a policy or custom of the entity violated the plaintiff’s rights, and the only type of immunity available is one belonging to the entity itself.

,

(1991). Personal capacity claims, on the other hand, are those which allege personal liability for individual actions by officials in the course of their duties; these claims do not require proof of any policy and qualified immunity may be raised as a defense.

,

.”

Gorman, 152 F.3d at 914. Here, Plaintiff has failed to identify any custom or policy of either Defendant Ables or her employer, Defendant WellPath LLC, which violated his rights. To the contrary, he alleges ADC policy and rules were violated. Thus, Plaintiff failed to state a plausible official capacity claim. IV. CONCLUSION For these reasons, it is recommended that: (1) the case be dismissed pursuant to 28 U.S.C. § 1915A(b)(1) for failure to state a claim upon which relief may be granted; (2) Plaintiff/Petitioner is warned that, in the future, this dismissal may be counted as a strike for purposes of

(g) and thus, the Clerk is directed to place a § 1915(g) strike flag on the case for future judicial consideration; and (3) the Court certify pursuant to

(a)(3) that any appeal from this dismissal would not be taken in good faith. The parties have fourteen days from receipt of the Report and Recommendation in which to file written objections pursuant to

(b)(1). The failure to file timely objections may result in waiver of the right to appeal questions of fact. The parties are reminded that objections must be both timely and specific to trigger de novo review by the

district court. DATED this 15th day of February 2024. /s/ Barry A. Bryant HON. BARRY A. BRYANT UNITED STATES MAGISTRATE JUDGE