Anderson v. Hubbard et al

Filing 75

ORDER ADOPTING 67 Partial Report and Recommendations in their entirety; therefore, defts' 59 Motion for Summary Judgment is GRANTED IN PART AND DENIED IN PART; defts Snyder, Barnes and Gordon are DISMISSED WITHOUT PREJUDICE; pltf may proceed with his inadequate medical care claim against deft Hubbard. Signed by Judge Susan Webber Wright on 2/22/12. (vjt)

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IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS PINE BLUFF DIVISION THEODORE A. ANDERSON, ADC #138956 V. PLAINTIFF 5:11CV00100 SWW/JTR CONNIE HUBBARD, LPN, Correctional Medical Services, Inc., et al. DEFENDANTS ORDER The Court has reviewed the Proposed Findings and Recommended Partial Disposition submitted by United States Magistrate Judge J. Thomas Ray and the filed objections. After carefully considering these documents and making a de novo review of the record in this case, the Court concludes that the Proposed Findings and Recommended Partial Disposition should be, and hereby are, approved and adopted in their entirety as this Court's findings in all respects. IT IS THEREFORE ORDERED that: 1. Defendants’ Motion for Summary Judgment (docket entry #59) is GRANTED IN PART and DENIED IN PART. 2. Defendants Gordon, Snyder, and Barnes are DISMISSED, WITHOUT PREJUDICE, because Plaintiff has failed to exhaust his administrative remedies against them. 3. Plaintiff may PROCEED with his inadequate medical care claim against Defendant Hubbard.1 4. The Court CERTIFIES, pursuant to 28 U.S.C. § 1915(a)(3), that an in forma pauperis appeal from any Order adopting this Recommended Partial Disposition would not be taken in good faith. IT IS SO ORDERED THIS 22ND DAY OF FEBRUARY, 2012. /s/Susan Webber Wright UNITED STATES DISTRICT JUDGE 1 Defendant Hubbard objects that Plaintiff failed to exhaust his administrative remedies because he filed his grievance beyond the period specified by written prison regulations. As noted by the Magistrate Judge, prison officials did not deny Plaintiff’s grievance as being untimely filed. Instead, officials considered the merits of his grievance and concluded that Defendant Hubbard had delayed referring him to a medical specialist. Under these circumstances, the Court agrees that Plaintiff properly exhausted his claim against Defendant Hubbard in accordance with prison requirements. See Ross v. County of Bernalillo, 365 F.3d 1181, 1186 (10th Cir.2004) (“If a prison accepts a belated filing, and considers it on the merits, that step makes the filing proper for purposes of state law and avoids exhaustion, default, and timeliness hurdles in federal court.”), abrogated on other grounds by Jones v. Bock, 549 U.S. 199, 127 S.Ct. 910(2007); see also Grear v. Gelabert, No. 1:07-CV-203, 2008 WL 474098, at *2 (W. D. Mich. Feb.15, 2008)(“If a plaintiff takes advantage of the grievance process and a state accepts the plaintiff's grievance and considers it on the merits, then the state will not be heard to complain that the grievance was not properly exhausted.”). 2

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