Bumgardner v. Norris et al

Filing 50

ORDER ADOPTING REPORT AND RECOMMENDATIONS 47 granting 44 Motion for Summary Judgment filed by Emswellen, John Whaley, Washington, Gardner, and dismissing plaintiff's complaint and amended complaint without prejudice for failure to exhaust administrative remedies. Signed by Judge Brian S. Miller on 4/20/11. (kpr)

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION
JIMMY DOYLE BUMGARDNER,
ADC # 103669
v.

PLAINTIFF

CASE NO. 5:09cv00345 BSM/JJV

JOHN WHALEY, Assistant Warden, ADC;
GARDNER, Lt., Varner Super Max, ADC;
WASHINGTON, Sgt., Varner Super Max,
ADC; EMSWELLEN, Sgt., Varner Super
Max, ADC; DOES, Unknown Officer and
Employees, Varner Super Max, ADC;

DEFENDANTS

ORDER
The proposed findings and recommended disposition submitted by United States
Magistrate Judge Joe J. Volpe have been reviewed. No objections have been filed. After
careful consideration, it is concluded that the proposed findings and recommended
disposition should be, and hereby are, approved and adopted in their entirety in all respects.
It is important to note, however, that plaintiff’s response to defendants’ motion for
summary judgment was not filed until the day the proposed findings and recommended
disposition were filed. Therefore his response was not addressed in the proposed findings and
recommended disposition. In his response plaintiff states that in the July 1, 2009, grievance,
VSM-09-1621, he complains of illegal strip searches on May 19, 21 and 22, 2009. While this
is true, he still fails to give the names of the personnel involved or witnesses, as required by
the ADC grievance procedure. He did not exhaust his administrative remedies.
Additionally, the proposed findings and recommended disposition place great

emphasis on the requirement under the ADC grievance procedure that the personnel involved
be named in the grievance. It appears, however, that an inmate may name the personnel
involved or witnesses. Plaintiff’s grievances are devoid of both.
IT IS THEREFORE ORDERED that:
1.

Defendants’ motion for summary judgment [Doc. No. 44] is GRANTED;

2.

Plaintiff’s complaint and amended complaints [Doc. Nos. 2, 18, 19] are

dismissed without prejudice for failure to exhaust administrative remedies.
DATED this 20th day of April, 2011.

________________________________
UNITED STATES DISTRICT JUDGE

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