Anderson v. Hobbs et al
ORDER denying 28 and 55 Motions to Dismiss and adopting re 72 Report and Recommendations. Signed by Honorable Susan O. Hickey on March 31, 2014. (sh)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HOT SPRINGS DIVISION
JAMES KEN ANDERSON
CIVIL NO. 6:12-cv-6117
RAY HOBBS, et al.
Before the Court is the Report and Recommendation filed October 31, 2013, by the
Honorable Barry A. Bryant, United States Magistrate Judge for the Western District of Arkansas.
(ECF No. 72). Judge Bryant recommends that Defendants’ Motions to Dismiss (ECF Nos. 28 &
55) 1 be denied. On November 14, 2013, Defendants 2 filed objections to Judge Bryant’s Report
and Recommendation. (ECF No. 76). After reviewing the record de novo, the Court adopts
Judge Bryant’s Report and Recommendation as its own.
On October 12, 2012, Plaintiff James Ken Anderson (“Anderson”), an inmate housed at
the Tucker Unit of the Arkansas Department of Correction (ADC), initiated this action pro se
pursuant to 42 U.S.C. § 1983, as well as the Rehabilitation Act and the Americans with
Disabilities Act. On October 12, 2012, the Court granted Anderson’s application to proceed in
forma pauperis (IFP).
The Defendants in this case are divided into two groups: the Arkansas Department of Correction Defendants and
the Corizon Medical Defendants. The Arkansas Department of Correction Defendants first filed a Motion to
Dismiss. (ECF No. 28). The Corizon Medical Defendants then adopted and incorporated by reference the Arkansas
Department of Correction Defendants’ Motion to Dismiss. (ECF No. 55). Thus, both motions set forth the same
The Arkansas Department of Correction Defendants filed objections. The Corizon Medical Defendants did not file
In his Complaint and Amended Complaint, Anderson alleges he is in imminent danger of
serious physical injury because his knee implant is defective and his Hepatitis C, metastatic
cancer, and methicillin resistant staphylococcus aureus (MRSA) are not being treated effectively.
Anderson additionally claims he is being subjected to potentially hazardous chemicals including
polyurethane, lacquer, lacquer thinners, and solvents. In response to Anderson’s allegations,
Defendants filed Motions to Dismiss. In their Motions to Dismiss, Defendants argue that the
Court should prohibit Anderson from proceeding IFP pursuant to 28 U.S.C. § 1915(g) because
Anderson has accumulated three strikes. Section 1915(g) provides:
In no event shall a prisoner bring a civil action . . . under this
section if the prisoner has, on three or more prior occasions, while
incarcerated or detained in any facility, brought an action . . . in a
court of the United States that was dismissed on the grounds that it
is frivolous, malicious, or fails to state a claim upon which relief
may be granted, unless the prisoner is under imminent danger of
serious physical injury.
28 U.S.C. § 1915(g). Upon consideration of Defendants’ Motions to Dismiss, Judge Bryant
recommends that this Court deny them. Judge Bryant reasons that even though Anderson has
accumulated three strikes, his Complaint and Amended Complaint sufficiently allege facts that
indicate he is under imminent danger of serious physical injury.
Defendants now object to the Report and Recommendation because they assert Judge
Bryant did not consider documentary evidence that negates Anderson’s assertion about his
health. The documentary evidence that Defendants’ reference in their objections are medical
records attached to Anderson’s Complaint (ECF No. 1) and medical records attached to
Defendants’ Response in Opposition to Anderson’s Motion for a Preliminary Injunction and
Temporary Restraining Order. (ECF No. 74-1). Defendants assert that if Judge Bryant would
have considered all of the records, he would have discovered that Anderson’s claims are
The Court finds Defendants’ argument is without merit. While the medical records
attached to Anderson’s Complaint may contradict some of his claims, Defendants expect Judge
Bryant to have read the records in Anderson’s Complaint in conjunction with the records in their
Response. However, Defendants filed their Response on November 8, 2013, more than a week
after Judge Bryant filed his Report and Recommendation. Thus, Judge Bryant could not have
considered the documentary evidence when considering Defendants’ Motions to Dismiss
because the Response had not yet been filed. Therefore, Defendants’ objection that Judge Bryant
should have considered these documents is without merit. 3
For the reasons set forth above, the Court overrules Defendants’ objections and adopts
Judge Bryant’s Report and Recommendation. (ECF No. 72). Accordingly, Defendants’ Motions
to Dismiss (ECF Nos. 28 & 55) are DENIED.
IT IS SO ORDERED, this 31st day of March, 2014.
/s/ Susan O. Hickey
Susan O. Hickey
United States District Judge
The Court also notes that the medical records attached to the Response are likely matters outside the pleadings, and
“[w]hen ruling on a motion dismiss under Rule 12(b)(6), a district court generally may not consider materials
outside the pleadings.” Noble Sys. Corp. v. Alorica Cent., LLC, 543 F.3d 978, 982 (8th Cir. 2008).
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