Proposed amendments would not fix mootness in ivermectin lawsuit, defendants say

FAYETTEVILLE — Proposed amendments won’t “cure” shortcomings in a federal lawsuit over the use of ivermectin to treat detainees at the Washington County jail, according to a defense response filed Monday.

The American Civil Liberties Union of Arkansas filed the federal lawsuit in January.

Four former detainees contend in the lawsuit they were unknowingly given ivermectin at the jail to treat covid-19 without being told the nature, contents or potential side effects of the drug. The lawsuit says they were told the treatment consisted of vitamins, antibiotics and/or steroids. The lawsuit contends detainees were given ivermectin as early as November 2020 and didn’t become aware of what the treatment was until July 2021.

Defendants include Tim Helder, in his official capacity as sheriff; Karas Correctional Health; Dr. Robert Karas; and the Washington County Detention Center. They argue in a motion filed earlier this month the claims are moot because the plaintiffs are no longer detainees in the jail, so the court doesn’t have jurisdiction to hear the case.

The plaintiffs are now at the Arkansas Department of Correction, according to the defendants, and courts have held an action seeking an injunction to alter prison conditions becomes moot once the plaintiff transfers to another facility.

Lawyers for the former detainees, in a motion filed Friday, asked the judge to allow them to consolidate another lawsuit making similar claims to address any mootness raised by the defendants.

Thomas Fritch filed a federal lawsuit, without a lawyer’s aid, making the same allegations, and Fritch is still a detainee at the jail, according to the motion. A motion was filed Wednesday on behalf of Fritch to consolidate the cases.

The motion Friday also seeks to add as defendants Cpl. Tom Mulvaney, of the sheriff’s office, in his individual and official capacities and Kelley Hinely, a nurse, in her official and individual capacities.

According to the defense response filed Monday, adding Mulvaney as a defendant fails to state a claim because there is no allegation that Mulvaney had any responsibility for inmate medical care beyond receiving and reviewing detainee complaints about ivermectin.

A battery claim against Karas Correctional Health employees for allegedly providing ivermectin to the detainees also fails, according to the response, because there is no allegation that any medicine was forced on the plaintiffs.

Plaintiffs in the case include Edrick Floreal-Wooten, Jeremiah Little, Julio Gonzales and Dayman Blackburn, who were housed in a quarantine block at the jail. The lawsuit says the men were given inappropriately high doses of ivermectin.

The U.S. Food and Drug Administration hasn’t approved ivermectin for use in treating or preventing covid-19 in humans, according to the lawsuit. It’s approved to treat some parasitic worms, head lice and skin conditions but isn’t an antiviral drug.