Mason v. Kelly et al

Filing 70

ORDER ADOPTING 68 Report and Recommendations; therefore, 63 Motion for Summary Judgment filed by the remaining defts Wade and Warren is GRANTED, and pltf's complaint 2 against them is DISMISSED WITHOUT PREJUDICE; judgment will be entered accordingly. Signed by Judge Susan Webber Wright on 7/11/13. (vjt)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION
FREDRICK MASON,
ADC #109138

PLAINTIFF
5:12CV00160-SWW-JTK

WENDY KELLY, et al.

DEFENDANTS
ORDER

The Court has received proposed findings and recommendations from United States
Magistrate Judge Jerome T. Kearney, recommending that plaintiff’s claims of deliberate indifference
to his serious medical needs be dismissed for failure to exhaust. Plaintiff filed objections, asserting
that he was unable to properly exhaust his medical grievances because the medical staff and warden
did not give him the original grievance forms that he needed to file his appeals. He claims he sought
copies of the documents and “expressed this issue” with the Deputy Director Kelly, who rejected
his appeals for failure to follow grievance policy.
After reviewing the proposed findings and recommendations, and the timely objections
received thereto, as well as a making a de novo review of the record, the Court adopts them in their
entirety. In his complaint, plaintiff complains Kelly denied him “proper Appeal” of his grievances.
Those claims were dismissed.

In his response to defendants’ motion for summary judgment,

plaintiff asserted he did not have meaningful access to documents and/or exhibits required to fully
present evidence to support his claims. He did not address the exhaustion issue and only now, in
his objections, does he claim he sought and never received the forms required to conform with the
grievance appeal process.
The evidence remains undisputed that plaintiff failed to properly exhaust as he did not follow
the procedural rules for appealing his grievance.
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See Woodford v. Ngo, 548 U.S. 81, 91

(2006)(“[p]roper exhaustion demands complain with an agency's deadlines and other critical
procedural rules because no adjudicative system can function effectively without imposing some
orderly structure on the course of its proceedings).
Accordingly,
IT IS, THEREFORE, ORDERED that the Motion for Summary Judgment filed by
Defendants Wade and Warren (Doc. No. 63) is GRANTED, and Plaintiff’s Complaint against them
is DISMISSED without prejudice.
An appropriate Judgment shall accompany this Order.
IT IS SO ORDERED this 11th day of July, 2013.

/s/Susan Webber Wright
UNITED STATES DISTRICT JUDGE

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