Billy Adams v. Ray Hobbs, et al

Filing 920101129

Opinion

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United States Court of Appeals FOR THE EIGHTH CIRCUIT ___________ No. 10-2138 ___________ Billy Tirrell Adams, * * Appellant, * * Appeal from the United States v. * District Court for the Eastern * District of Arkansas. Ray Hobbs, Chief Deputy Director, * Arkansas Department of Corrections; * [UNPUBLISHED] John Byus, Medical Administrator, * Arkansas Department of Corrections; * Wendy Kelley, Deputy Director of * Treatment, Arkansas Department of * Corrections; Richard Clark, Dr., East * Arkansas Regional Unit, ADC; * Charlotte Green, Infirmary Manager, * East Arkansas Regional Unit, ADC; * Greg Harmon, Warden, East Arkansas * Regional Unit, ADC, * * Appellees. * ___________ Submitted: November 19, 2010 Filed: November 29, 2010 ___________ Before BYE, BOWMAN, and COLLOTON, Circuit Judges. ___________ PER CURIAM. Inmate Billy Tirrell Adams appeals the district court's1 adverse grant of summary judgment in his 42 U.S.C. 1983 action. We conclude that the claims against the Arkansas Department of Correction defendants were properly dismissed for failure to exhaust administrative remedies, see King v. Iowa Dep't of Corr., 598 F.3d 1051, 1052 (8th Cir.) (de novo standard of review), cert. denied, 79 U.S.L.W. 3226 (U.S. Oct. 12, 2010), but we modify the dismissal of those claims to be without prejudice, see Calico Trailer Mfg. Co. v. Ins. Co. of N. Am., 155 F.3d 976, 978 (8th Cir. 1998). As to the remaining claims against Charlotte Green and Dr. Richard Clark, we agree with the district court that Adams failed to create trialworthy issues. See Davis v. Oregon County, Mo., 607 F.3d 543, 548 (8th Cir. 2010) (summary judgment standard of review); see also Williams v. Jackson, 600 F.3d 1007, 1014 (8th Cir. 2010) (deliberate indifference claim requires showing more than even gross negligence); Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993) (per curiam) (failure to process grievances, without more, is not actionable under 1983). To the extent Adams is arguing that summary judgment was premature and that the record established deliberate indifference by Dr. Joseph Hughes, Adams did not seek a continuance under Federal Rule of Civil Procedure 56(f) by filing an affidavit showing what facts further discovery might uncover, see Ballard v. Heineman, 548 F.3d 1132, 1136-37 (8th Cir. 2008), and he also did not seek leave to add Dr. Hughes as a defendant. Accordingly, we affirm. We also deny Adams's pending motion for appointment of counsel. ______________________________ The Honorable Jerome T. Kearney, United States Magistrate Judge for the Eastern District of Arkansas, to whom the case was referred for final disposition by consent of the parties pursuant to 28 U.S.C. 636(c). -2- 1

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