Waller v. Kelley et al

Filing 17

ORDER ADOPTING 13 Partial Report and Recommendations in their entirety; the U.S. Marshal is directed to serve summons, complaints 2 11 , and this Order on defts without prepayment of fees and costs. Signed by Chief Judge J. Leon Holmes on 2/7/12. (vjt)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
NORTHERN DIVISION
KENNETH L. WALLER, JR.
ADC #103829
v.

PLAINTIFF

No. 1:11CV00095 JLH/JTR

WENDY KELLEY, Deputy Director,
Arkansas Department of Correction, et al.

DEFENDANTS
ORDER

The Court has reviewed the Proposed Findings and Recommended Partial Disposition
submitted by United States Magistrate Judge J. Thomas Ray and the filed objections. After carefully
considering these documents and making a de novo review of the record in this case, the Court
concludes that the Proposed Findings and Recommended Partial Disposition should be, and hereby
are, approved and adopted in their entirety as this Court’s findings in all respects.
IT IS THEREFORE ORDERED that:
1.

Plaintiff’s FTCA claims against all of the Defendants are DISMISSED, WITH

PREJUDICE, for failing to state a claim upon which relief may be granted.
2.

Plaintiff’s pendent state law negligence and outrage claims against Defendant Kelley

are DISMISSED, WITH PREJUDICE, because she is entitled to statutory immunity under Ark.
Code. Ann. § 19–10–305.
3.

Plaintiff’s pendent state law outrage claims against Defendants CMS, Cowell,

Bragswell, Horn, Nance, Hutchinson, Armstrong, Waldrupe, Gilbert, and Bridgeman are
DISMISSED, WITHOUT PREJUDICE, for failing to state a claim upon which relief may be
granted.

4.

Plaintiff may PROCEED with his pendent state law negligence claims against

Defendants CMS, Cowell, Bragswell, Horn, Nance, Hutchinson, Armstrong, Waldrupe, Gilbert, and
Bridgeman.
5.

Plaintiff may PROCEED with his Eighth Amendment inadequate medical care claims

against all Defendants.
6.

The Clerk is directed to prepare a summons for Defendants Cowell, Bragswell, Horn,

Nance, Hutchinson, Bridgeman, Armstrong, Waldrupe, Gilbert, and Corizon, Inc. The United States
Marshal is directed to serve the summons, Complaint, Amended Complaint, and this Order on them
through the Humphries and Lewis law firm without prepayment of fees and costs or security
therefor.1
7.

The Clerk is directed to prepare a summons for Defendant Wendy Kelley. The

United States Marshal is directed to serve the summons, Complaint, Amended Complaint, and this
Order on her through the ADC Compliance Division without prepayment of fees and costs or
security therefor.
8.

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 7th day of February, 2012.

UNITED STATES DISTRICT JUDGE

1

If any of the Defendants are no longer Corizon employees, the Humphries and Lewis law
firm shall file, with the return of unexecuted service, a SEALED Statement providing the last known
private mailing address for the unserved Defendant.
2