Afton v. Butler et al

Filing 15

ORDER approving and adopting the 9 Amended and Substituted Proposed Findings and Recommendations; dismissing without prejudice Mr. Afton's claims against Drs. Butler and Jones, Mr. Burl, Correct Care Services, the Nursing Staff at Correct Care Services, Arkansas Department of Correction, Captain McNary, Mrs. McCoy and Corporal Sykes; and certifying that an in forma pauperis appeal from this Order would not be taken in good faith. Signed by Judge Kristine G. Baker on 8/22/2017. (ljb)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION
DAVID MICHAEL AFTON,
ADC # 131152
v.

PLAINTIFF

Case No. 4:16-cv-00228-KGB-JJV

BUTLER, Doctor; et al.

DEFENDANTS
ORDER

The Court has reviewed the Proposed Findings and Recommendations submitted by
United States Magistrate Judge Joe J. Volpe and plaintiff David Michael Afton’s objections
thereto (Dkt. Nos. 6, 7). The Court has also reviewed the Amended and Substituted Proposed
Findings and Recommendations submitted by Magistrate Judge Volpe (Dkt. No. 9). Mr. Afton
did not file any objections to the Amended and Substituted Proposed Findings and
Recommendations, and the time for filing objections to the Amended and Substituted Proposed
Findings and Recommendations has passed.
After carefully considering the objections and making a de novo review of the record, the
Court adopts the Amended and Substituted Proposed Findings and Recommendations (Dkt. No.
9). As a result, the Court dismisses without prejudice Mr. Afton’s claims against defendants Drs.
Butler and Jones, Danny Burl, Correct Care Services, the Nursing Staff of Correct Care Services,
Arkansas Department of Correction, Captain McNary, Mrs. McCoy, and Corporal Sykes. 1
The Court will address Mr. Afton’s objection to the Proposed Findings and
Recommendations (Dkt. Nos. 6, 7) and the allegations in his amended complaint. Mr. Afton
filed an amended complaint, which was timely filed in response to Judge Volpe’s Order granting
permission to do so (Dkt. Nos. 3, 8). In his objections, Mr. Afton contends that the Proposed

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For other reasons, explained in a separate order, the Court dismisses without prejudice

Findings and Recommendations incorrectly conclude that he is suing Drs. Butler and Jones, Mrs.
McCoy, and Captain McNary for deliberate indifference to his medical care (Dkt. No. 7, at 1).
Mr. Afton contends that he is suing Dr. Butler for not doing a scope to see what is wrong with
his stomach or esophagus. He contends that he is suing Captain McNary for negligence and
denying his right to file a grievance. He contends that he is suing Corporal Sykes for denying
him proper emergency care after swallowing bleach. He further contends that he is suing for
negligence the officer who gave him the bleach. Mr. Afton states in his objections that Mrs.
McCoy, Dr. Jones, and Danny Burl will not be in his amended complaint.
As an initial matter, this Court adopts the conclusion of the Amended and Substituted
Proposed Findings and Recommendations that Mr. Afton’s allegations in his complaint and
amended complaint are not sufficient to state a claim for deliberate indifference. Mr. Afton’s
first objection appears to be that he is not pursuing a deliberate indifference claim against Dr.
Butler but, instead, is pursuing a medical malpractice claim based on Dr. Butler’s failure to
perform a scope exam of Mr. Afton’s stomach and esophagus. To the extent that Mr. Afton is
pursuing a medical malpractice claim, the Court declines to exercise jurisdiction over such a
claim because, even if he is alleging negligence on the part of Dr. Butler, Mr. Afton is not
alleging the denial of a constitutional right. See, e.g., Smith v. Baker, 326 F. Supp. 787 (W.D.
Mo. 1970), aff’d, 442 F.2d 928 (8th Cir. 1971) (holding that plaintiff’s claims of improper
treatment that did not amount to deliberate indifference failed to allege the violation of a federal
civil right and, therefore, did not invoke the provisions of the Federal Civil Rights Act). Medical
malpractice alone is not actionable under the Eighth Amendment. Smith v. Clarke, 458 F.3d 720,
724 (8th Cir. 2006). Therefore, to the extent that Mr. Afton seeks to pursue a claim of medical

Mr. Afton’s claims against John Doe, the only remaining defendant.
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malpractice against Dr. Butler, rather than a claim of deliberate indifference, the Court declines
to exercise jurisdiction over that claim and dismisses without prejudice that claim. Mr. Afton
does not name Dr. Jones in his amended complaint. For all of these reasons, the Court dismisses
without prejudice Mr. Afton’s claims against Drs. Butler and Jones.
In his objections, Mr. Afton reiterates that his complaint includes allegations that Captain
McNary failed to permit him to file a grievance. After conducting the screening function, the
Proposed Findings and Recommendations concluded that Mr. Afton’s claims against Captain
McNary be permitted to proceed, as those claims were not referenced in the Proposed Findings
and Recommendations (Dkt. No. 6). The Amended and Substituted Proposed Findings and
Recommendations conclude that Mr. Afton’s claims against Captain McNary should not be
permitted to proceed because the grievance procedure does not confer substantive rights on an
inmate and because Captain McNary cannot be held liable on a theory of respondeat superior
under 42 U.S.C. § 1983 (Dkt. No. 9). The Court adopts the Amended and Substituted Proposed
Findings and Recommendations to dismiss without prejudice Mr. Afton’s claims against Captain
McNary. The Court dismisses without prejudice Mr. Afton’s claims against Captain McNary.
The Proposed Findings and Recommendations also concluded that Mr. Afton should be
permitted to proceed with his claims against Mrs. McCoy, as those claims were not referenced in
the Proposed Findings and Recommendations (Dkt. No. 6). In his objections, however, Mr.
Afton appears to abandon those claims (Dkt. No. 7, at 2). Indeed, Mr. Afton has not named Mrs.
McCoy in his amended complaint (Dkt. No. 8). As a result, the Court directs that Mrs. McCoy
be terminated as a defendant from this lawsuit because Mr. Afton has abandoned his claims
against her, not named her in his amended complaint, and does not seek relief from her.
The Proposed Findings and Recommendations conclude that Mr. Afton’s claims against
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Mr. Burl should be dismissed without prejudice. Mr. Afton did not object to that conclusion.
Upon review, the Court agrees with the conclusion that Mr. Afton’s claims against Mr. Burl are
not related to the same occurrence as his claims against the other defendants. Therefore, the
Court adopts the Proposed Findings and Recommendations to dismiss without prejudice Mr.
Afton’s claims against Mr. Burl.
Finally, Mr. Afton contends that he is suing Corporal Sykes for denying him proper
emergency care. His initial complaint did not address his claim against Corporal Sykes (Dkt.
No. 2). In his amended complaint, Mr. Afton contends that he began choking on bleach while in
his cell, and when Corporal Sykes responded, Corporal Sykes escorted Mr. Afton to the
infirmary (Dkt. No. 8, at 5). Mr. Afton contends that he “repeatedly asked for water to dilute the
chemical I swallow but was Refused (sic) by officer Sykes and also infirmary Staff (sic).” (Dkt.
No. 8, at 5). Mr. Afton generally alleges that he “was harmed by this incident because [he]
developed Post Traumatic Stress Disorder and Panic Disorder” and alleges that “something is
going on with [his] stomach and esophagus causing [him] to loss (sic) 30 pounds and have
trouble breathing” after he eats (Dkt. No. 8, at 4).
A prison guard may be liable under the Eighth Amendment if the guard intentionally
denies or delays access to medical care or intentionally interferes with treatment once prescribed.
See Estelle v. Gamble, 429 U.S. 97, at 105 (1976). “Intentional delay in providing medical
treatment shows deliberate disregard if a reasonable person would know that the inmate requires
medical attention or the actions of the officers are so dangerous that a knowledge of the risk may
be presumed.” Gordon ex rel. Gordon v. Frank, 454 F.3d 858, 862 (8th Cir.2006). However, a
prison official may rely on a medical professional’s opinion if such reliance is reasonable. Meloy
v. Bachmeier 302 F.3d 845, 849 (8th Cir.2002) (“The law does not clearly require an
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administrator with less medical training to second-guess or disregard a treating physician’s
treatment decision.”); see also Johnson v. Doughty, 433 F.3d 1001, 1010 (7th Cir.2006) (“Except
in the unusual case where it would be evident to a layperson that a prisoner is receiving
inadequate or inappropriate treatment, prison officials may reasonably rely on the judgment of
medical professionals.”) (citation omitted). Further, an inmate claiming deliberate indifference
based on delay in treatment must allege that the delay itself caused harm. Moots v. Lombardi,
453 F.3d 1020 (8th Cir. 2006). Mr. Afton’s allegations against Corporal Sykes do not suffice to
state an actionable claim for delay in treatment. Thus, the Court dismisses without prejudice Mr.
Afton’s claim against Corporal Sykes.
It is therefore ordered that Mr. Afton’s claims against Drs. Butler and Jones, Mr. Burl,
Correct Care Services, the Nursing Staff at Correct Care Services, Arkansas Department of
Correction, Captain McNary, Mrs. McCoy, and Corporal Sykes are dismissed without prejudice.
The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that an in forma pauperis appeal from
this Order would not be taken in good faith.
It is so ordered this the 22nd day of August, 2017.

________________________
Kristine G. Baker
United States District Judge

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