Avery v. Cashion et al

Filing 128

ORDER 106 adopting in part and modifying in part Partial Report and Recommendations; denying 88 Motion for Summary Judgment; granting in part and denying in part 90 Motion for Summary Judgment. Signed by Judge Kristine G. Baker on 9/30/13. (kpr)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION
ROBERT WILLIAM AVERY,
ADC #652373
v.

PLAINTIFF

5:12-cv-00062-KGB-HDY

MARK CASHION, et al.

DEFENDANTS
ORDER

The Court has received Proposed Findings and Recommendations from United States
Magistrate Judge H. David Young (Dkt. No. 106). Defendants filed timely objections to the
Proposed Findings and Recommendations (Dkt. No. 125). After a review of the Proposed
Findings and Recommendations, and the timely objections received thereto, as well as a de novo
review of the record, the Court adopts in part and modifies in part the Proposed Findings and
Recommendations.
The Court modifies the Proposed Findings and Recommendations to grant summary
judgment in favor of defendants on plaintiff Robert William Avery’s claim for injunctive relief.
Defendants moved for summary judgment on Mr. Avery’s claim for injunctive relief, asserting
that his claims were moot due to his transfer from Delta Regional Unit, the correctional facility
at which defendants were employed and about which Mr. Avery complained. In the Proposed
Findings and Recommendations, the Court determined that Mr. Avery’s request for injunctive
relief should not be dismissed because Mr. Avery’s addressed had changed several times and his
current location was unclear at the time. However, since the Court issued its Proposed Findings
and Recommendations, Mr. Avery filed a notice of change of address indicating that he has been
released from the Arkansas Department of Corrections and is currently residing in Springdale,
Arkansas (Dkt. No. 122). Therefore, the Court finds that Mr. Avery’s claim for injunctive relief

is moot and should be dismissed with prejudice.
The Court adopts the Proposed Findings and Recommendations in all other respects.
Accordingly, it is ordered that the motion for summary judgment filed by Mr. Avery is
denied (Dkt. No. 88). It is further ordered that the motion for summary judgment filed by
defendants Mark Cashion, James Gibson, Lillie Phillips, and Larry Manning is granted in part
and denied in part (Dkt. No. 90). Defendants’ motion for summary judgment as to Mr. Avery’s
claims against them in their official capacities for monetary damages and Mr. Avery’s claim for
injunctive relief is granted. Mr. Avery’s claims for monetary damages against defendants in
their official capacities and Mr. Avery’s claim for injunctive relief are dismissed with prejudice.
Defendants’ motion for summary judgment is denied in all other respects.
IT IS SO ORDERED this 30th day of September, 2013.

______________________________________
KRISTINE G. BAKER
UNITED STATES DISTRICT JUDGE

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