Miles v. Futrell et al
ORDER approving and adopting 47 Proposed Findings and Recommendations in their entirety as this Court's findings in all respects; granting defendants' 33 motion to dismiss, or in the alternative, partial motion for summary judgment; and dismissing without prejudice Mr. Miles's claims against defendants Cunningham, Futrell, Loveday, Maples, and Weyant for failure to exhaust administrative remedies. Signed by Judge Kristine G. Baker on 02/27/2017. (rhm)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
Case No. 2:16-cv-00036-KGB-JTK
SANDRA FUTRELL, et al.
The Court has reviewed the Proposed Findings and Recommendations submitted by
United States Magistrate Judge Jerome T. Kearney (Dkt. No. 47). Plaintiff Donald Miles filed
objections to the Proposed Findings and Recommendations (Dkt. No. 49). After careful
consideration of the Proposed Findings and Recommendations and Mr. Miles’s objections, and a
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 (Dkt. No. 47).
The Court writes separately to address Mr. Miles’s objections (Dkt. No. 49). Mr. Miles
contends, among other things, that Judge Kearney’s assessment regarding Mr. Miles’s
administrative grievance filings is incorrect. Mr. Miles agrees with Judge Kearney’s assessment
that the administrative grievance procedure begins with a BP form, but he argues that he
requested such a form on April 17, 2014. Mr. Miles states that his amended complaint shows
this written request (Dkt. No. 8, at 36–37). Mr. Miles further contends that he filled out the BP-9
form on or about April 21, 2014, and subsequently gave the form to his designated authority,
Counselor Lloyd (Dkt. No. 49, at 2). Mr. Miles claims that he was placed in SHU lockup, or
solitary confinement, on or about April 3, 2014, and that this hindered his ability to follow up on
his grievance. Mr. Miles also contends that he attempted numerous times, both verbally and in
writing, to make sure his BP-9 form was received. The Court notes that Mr. Miles made this
same argument in his response to the motion for summary judgment, and Judge Kearney
addressed the argument in his Proposed Findings and Recommendations, citing Chelette v.
Harris, 229 F.2d 684, 688 (8th Cir. 2000) (Dkt. No. 47, at 9).
The Court grants defendants’ motion to dismiss, or in the alternative, partial motion for
summary judgment (Dkt. No. 33). The Court dismisses without prejudice Mr. Miles’s claims
filed pursuant to Bivens v. Six Unknown Agents, 403 U.S. 388 (1971), against defendants
Cunningham, Futrell, Loveday, Maples, and Weyant for failure to exhaust administrative
So ordered this 27th day of February, 2017.
Kristine G. Baker
United States District Judge
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