Bargo v. Kelley et al

Filing 71

ORDER approving and adopting in its entirety 56 Proposed Findings and Partial Recommended Disposition as this Court's findings in all respects with additional comments; and denying 50 Jerome Allen Bargo's motion for injunctive relief. Signed by Judge J. Leon Holmes on 5/17/2018. (ljb)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION
JEROME ALLEN BARGO
ADC #075423
v.

PLAINTIFF

No. 5:17CV00281 JLH-PSH

WENDY KELLEY, et al.

DEFENDANTS
ORDER

The Court has reviewed the Proposed Findings and Partial Recommended Disposition
submitted by United States Magistrate Judge Patricia S. Harris, and the objections filed. After
carefully considering the objections and making a de novo review of the record in this case, the
Court concludes that the Proposed Findings and Partial Recommended Disposition should be, and
hereby is, approved and adopted in its entirety as this Court’s findings in all respects, with the
following additional comments. As Jerome Allen Bargo acknowledges, to succeed on the merits
he must prove that the defendants were deliberately indifferent to his serious medical needs.
Document #55 at 2 (citing Estelle v. Gamble, 429 U.S. 97, 104, 97 S. Ct. 285, 291, 50 L. Ed. 2d
251 (1976)). Bargo acknowledges that the defendants have offered to extract his abscessed tooth,
but he says that they are nevertheless indifferent because the treatment that they offered, extraction,
deviates so far from normal standards as to amount to deliberate indifference. Document #55 at
4. That argument relies upon Smith v. Jenkins, where the Eighth Circuit said that evidence of
deliberate indifference can be established by showing that the course of treatment “so deviated
from professional standards that it amounted to deliberate indifference in violation of [the
defendant’s] eighth amendment right to be free from cruel and unusual punishment.” 919 F.2d 90,
93 (8th Cir. 1990). The Eighth Circuit acknowledged, however, that proof that a course of
treatment deviated from professional standards requires expert testimony. Id. Here, Bargo has no

expert testimony. He has failed to show that the extraction offered by the defendants so far deviates
from professional standards, as they would be applied to his particular case, as to constitute
deliberate indifference. Consequently, he has failed to show a likelihood of success on the merits,
which is an issue on which he has the burden of proof.
Jerome Allen Bargo’s motion for injunctive relief is DENIED. Document #50.
IT IS SO ORDERED this 17th day of May, 2018.

__________________________________
J. LEON HOLMES
UNITED STATES DISTRICT JUDGE

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