Atchley v. Horn et al

Filing 25

ORDER ADOPTING 21 Report and Recommendations of Magistrate Judge, granting Defendants' 11 Motion for Summary Judgment, and dismissing Mr. Atchley's complaint without prejudice. All other pending motions are denied as moot. The Court certifies that an in forma pauperis appeal taken from the order and judgment dismissing this action is considered frivilous and not in good faith. Signed by Judge Kristine G. Baker on 5/30/2013. (mcz)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
BATESVILLE DIVISION
BRANDON ATCHLEY
ADC #140054
v.

PLAINTIFF
Case No. 1:12-cv-00070 KGB

JENNIFER HORN et al.

DEFENDANTS
ORDER

The Court has reviewed the Proposed Findings and Recommendations submitted by
United States Magistrate Judge H. David Young. Brandon Atchley filed an objection (Dkt. No.
24). After a careful, de novo review of the record, the Court concludes that the Proposed
Findings and Recommendations should be, and hereby are, approved and adopted in their
entirety as this Court’s findings in all respects.
The Court acknowledges Mr. Atchley’s point that, given the grievance policy of the
Arkansas Department of Correction (“ADC”), this dismissal without prejudice may in effect
operate as a dismissal with prejudice because Mr. Atchley may be unable to exhaust the
grievance process now due to lateness and the ADC’s policy. Controlling precedent requires that
Mr. Atchley exhaust the grievance process of the ADC before filing suit in federal court, even
under these circumstances. See Woodford v. Ngo, 548 U.S. 81, 90-91 (2006).
IT IS THEREFORE ORDERED THAT:
1. Defendants’ motion for summary judgment (Dkt. No. 11) is granted, and Mr. Atchley’s
complaint is dismissed without prejudice.
2. All other pending motions are denied as moot.
3. The Court certifies that an in forma pauperis appeal taken from the order and judgment
dismissing this action is considered frivolous and not in good faith.

IT IS SO ORDERED THIS the 30th day of May, 2013.

________________________________
KRISTINE G. BAKER
UNITED STATES DISTRICT JUDGE

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