Winnett v. Burls et al

Filing 175

ORDER accepting in part and declining in part 160 Magistrate Judge Young's Proposed Findings and Recommended Disposition; granting 136 Wendy Kelley's Motion for Summary Judgment; remanding 139 the remaining Defendants' Motion for Summary Judgment; denying 154 , 167 and 172 Motions to Appoint Counsel; and, denying 170 Motion to Amend. Signed by Judge D. P. Marshall Jr. on 10/12/2011. (dmn)

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF ARKANSAS

EASTERN DIVISION

DONALD WINNETT

ADC# 139544
v.

PLAINTIFF
No.2:10-cv-106-DPM-HDY

GERALDINE CAMPBELL,
CRYSTAL SIMS, CHIQUITA DAVIS,
WENDY KELLEY, WALTER HOLLOWAY, and
MARYBETH FLOYD

DEFENDANTS

ORDER
On de novo review of Magistrate Judge H. David Young's Proposed
Findings and Recommended Disposition and Winnett's timely filings in
objection, Document Nos. 160, 162, 163, 164 & 165, the Court adopts the
recommendation for the most part, remands on one issue, and addresses some
other pending motions.
1. The Court adopts Judge Young's suggested no-exhaustion decision

as to Defendant Kelley. She is entitled to summary judgment.
2. The Court adopts Judge Young's suggested no-exhaustion analysis
as to all other Defendants on grievances EA-10-1022, EA-10-1118, and EA-10­
1213. Winnett, for example, agreed at the hearing that he did not exhaust the
administrative process on EA-10-1118 and EA-10-1213, Document Nos. 136-4

& 136-5, before filing suit because the administrative process takes too long.

3. The Court remands, however, for reconsideration of Winnett's 27
May 2010 grievance, EA-10-975, which is attached to Document No.8, and
which Winnett highlights in one of his objections. Document No. 164, at 2.
This grievance covers the rash and ingrown-toenail issues; it was not
discussed at the hearing; and it may have been exhausted before Winnett
sued. The remaining Defendants have not carried their burden of proving
otherwise. Nerness v. Johnson, 401 F.3d 874, 876 (8th Cir. 2005) (per curiam).
The Court requests Magistrate Judge Young to consider exhaustion of
grievance EA-10-975 on a supplemented record.
4. There are some loose ends. Document Nos. 162 & 163 are not proper

objections because they cover matters beyond the toenail and rash issues.
Winnett's motion to amend, Document No. 170, is denied: asserting new claims
against Defendant Kelley is futile in the face of no exhaustion; and the
proposed claims against Defendant Burl are too far afield from Winnett's
deliberate-indifference claim about the toenail and rash. Winnett's many
motions for appointed counsel, Document Nos. 154, 167 & 172, are denied
because the issues of fact and law are not complex.

* * *

Magistrate Judge Young's Proposed Findings and Recommended
Disposition, Document No. 160, is accepted in part and declined in part.
Wendy Kelley's motion for summary judgment, Document No. 136, granted.
Remaining Defendants' motion for summary judgment, Document No. 139, is
remanded for supplementing the record and a recommendation about
exhaustion of the 27 May 2010 grievance, No. EA-10-975, or the merits.
Winnett's motions to appoint counsel, Document Nos. 154, 167 & 172, are
denied. His motion to amend, Document No. 170, is denied.
So Ordered.

D.P. Marshall Jr.
United States District Judge

12 October 2011

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