Martin v. Flud et al

Filing 9

ORDER adopting in part and rejecting in part #5 Recommendation; dismissing without prejudice Mr. Martin's claims regarding the distribution of medicine without a medical license; dismissing without prejudice Mr. Martin's negligence claims; directing the Clerk of the Court to prepare Summons for Defendants Flud, Staley, and Gibson; directing the United States Marshal to serve a copy of #2 Complaint, Summons, and this Order on each Defendant without prepayment of fees and costs or security therefore; and certifying that an in forma pauperis appeal from this Order would not be taken in good faith. Signed by Judge Lee P. Rudofsky on 01/08/2021. (ajt)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
CENTRAL DIVISION
ROBERT MARTIN
ADC #164621

PLAINTIFF

v.

Case No. 4:20-cv-01361-LPR-JJV

FLUD, Administrator,
Lonoke County Detention Center; et al.

DEFENDANTS

ORDER
The Court has received and reviewed the Proposed Findings and Recommendations (“the
Recommendation”) submitted by United States Magistrate Judge Joe J. Volpe. (Doc. 5). Plaintiff
Robert Martin has not filed any objections. After careful consideration, the Recommendation is
adopted in part and rejected in part.
First, the Court adopts the portion of the Recommendation that recommends dismissal
without prejudice of Mr. Martin’s claims regarding the distribution of medicine without a medical
license.
Second, the Court adopts the portion of the Recommendation that recommends dismissal
without prejudice of Mr. Martin’s negligence claim against Defendant Manes regarding the alleged
afternoon distribution of Mr. Martin’s morning medicine on one occasion. In addition to what
Judge Volpe said on this point, the Court also notes that Mr. Martin did not allege that the incorrect
timing of the medicine distribution was intentional.1
Third, the Court adopts the portion of the Recommendation that recommends dismissal
without prejudice of all the official capacity claims.

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The Recommendation correctly permitted Mr. Martin’s claim to proceed against Defendant Manes for deliberate
indifference to medical needs for marking off another inmate’s name from a medication and giving that
medication to Mr. Martin. 

Fourth, the Court rejects the portion of the Recommendation to dismiss Defendants Staley,
Flud, and Gibson. The Recommendation characterizes Mr. Martin’s claim as being based on the
Defendants telling Mr. Martin that he would have to pay for the hospital visit rather than directly
refusing to take him. (Id. at 5). The Recommendation also states that Mr. Martin “does not explain
why he needed to go to the hospital on October 29, 2020.” (Id.). However, in the context of the
Complaint as a whole and reading it liberally, the Court understands the Complaint to say that Mr.
Martin was again complaining of chest pains on October 29, 2020 and the Defendants refused to
take him to the hospital.
Mr. Martin described that Defendants Staley, Flud, and Gibson told him “they wasn’t going
to send [him] to the hospital,” but if they did, then Mr. Martin would have to pay for it. (Doc. 2 at
5-6). Mr. Martin responded that he had insurance. (Id.). This indicates that Mr. Martin was
expressing his willingness to absorb the cost if the Defendants would agree to take him to the
hospital. The Court understands Mr. Martin to allege that he complained of chest pain and
Defendants Staley, Flud, and Gibson refused to take him to the hospital despite his willingness to
pay for medical care with his insurance. In my view, this claim of deliberate indifference survives
screening.
IT IS THEREFORE ORDERED that:
1.

Mr. Martin’s claims regarding the distribution of medicine without a medical
license are dismissed without prejudice.

2.

Mr. Martin’s negligence claims are dismissed without prejudice.

3.

Mr. Martin’s official capacity claims are dismissed without prejudice.

4.

Defendants Flud, Staley, and Gibson are not dismissed from this lawsuit. The

deliberate indifference claim against them (in their personal capacities) survives screening and

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should be served. The Court orders the Clerk of the Court to prepare Summons for Defendants
Flud, Staley, and Gibson. The United States Marshal shall serve a copy of the Complaint (Doc.
2), Summons, and this Order on each Defendant (Flud, Staley, and Gibson) without prepayment
of fees and costs or security therefore. Service for Defendants should be attempted through the
Lonoke County Detention Center, 440 Dee Dee Lane, Lonoke, Arkansas 72086.
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.
DATED this 8th day of January 2021.

________________________________
LEE P. RUDOFSKY
UNITED STATES DISTRICT JUDGE

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