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)

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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 -3­

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