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)

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