Simmons v. Davis et al

Filing 44

ORDER granting 43 Motion. The Clerk is directed to file the attachment 43 - 1 as Defendant Davis's supplemental motion for summary judgment. Mr. Simmons may file a response opposing the motion if he wishes within 14 days of this Order. Signed by Magistrate Judge Beth Deere on 10/14/2020. (jak)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
NORTHERN DIVISION
CHARLES H. SIMMONS,
ADC #135731
V.

PLAINTIFF

CASE NO. 3:20-CV-138-DPM-BD

RICKY DAVIS, et al.

DEFENDANTS
ORDER

On September 17, 2020, Defendants moved for summary judgment on all pending

claims, contending that Mr. Simmons failed to fully exhaust his administrative remedies
before filing suit. (Doc. No 32) On October 8, 2020, the Court recommended that
Defendants’ motion be GRANTED, in part. The Court recommended dismissal of all
claims except the deliberate-indifference claim against Defendant Davis. (Doc. No. 42)
Defendants have now moved for leave to file an amended motion for summary
judgment to address Mr. Simmons’s failure to file a grievance regarding Defendant
Davis’s alleged deliberate indifference to his medical needs. (Doc. No. 43) The motion is
GRANTED. The Clerk is directed to file the attachment to the motion (Doc. No. 43-1) as
Defendant Davis’s supplemental motion for summary judgment.
Mr. Simmons may file a response opposing Defendant Davis’s motion for
summary judgment if he wishes. To be considered, the response must be filed within 14
days of this Order. In opposing the motion for summary judgment, Mr. Simmons may
attach affidavits that he or others have signed. Because affidavits are sworn statements,
they must be either notarized or declared under penalty of perjury. See 28 U.S.C. § 1746.

Unsworn statements will not be considered in deciding the motion for summary
judgment. And to be considered, an affidavit must be based on the personal knowledge of
the person who signs it.
The motion for summary judgment concerns only whether Mr. Simmons fully
exhausted the grievance process with regard to his deliberate-indifference claim against
Defendant Davis. His response to the motion, therefore, should address only that issue—
that is, whether he exhausted his administrative remedies regarding this claim before May
20, 2020 (the date the complaint was filed) and, if not, whether there was a valid reason
why he did not.
IT IS SO ORDERED, this 14th day of October, 2020.

____________________________________
UNITED STATES MAGISTRATE JUDGE

2