McEwing v. Shores et al

Filing 203

ORDER denying 198 Motion for Continuance, denying 202 Motion to Strike. Docket number 193 , and all attachments, sealed. Recommendation 195 adopted in part and declined in part. Motion for Summary Judgment 187 granted in part and denied in part. Motion for Summary Judgment 191 granted. McEwing's claims against Spencer, Moore, Jones, Poe, Johnson, Cooley, Stevens, Washington, Drayer, Ables, Shelly Byers, and Newton are dismissed without prejudice for failure to exhaust. McEwing& #039; s property claims against Price are dismissed without prejudice. Two claims remain in this case: the property claim against Plummer; and the excessive-force claims against Hutcheson, Shores, Cockrell, Hayes, Banks, Allen, and Jared Byers. Signed by Judge D. P. Marshall Jr. on 12/10/2014. (jak)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION
ANDRE D. MCEWING
ADC #116327
v.

PLAINTIFF
No. 5:12-cv-298-DPM-JJV

SHORES, Lieutenant, Varner Unit, ADC;
ROBERT HUTCHESON, Sargeant, Varner Unit, ADC;
COCKRELL, Sergeant, Varner Unit, ADC;
HAYES, Sergeant, Varner Unit, ADC;
J. BYERS, Major, Varner Unit, ADC;
JAMES PLUMMER, Sergeant, Varner Unit, ADC;
J. PRICE, Property Officer, Varner Unit, ADC;
NEWTON, Nurse, Varner Unit, ADC;
FLORIA WASHINGTON, Sergeant, Varner Unit, ADC;
TONDA SPENCER, Sergeant, Varner Unit, ADC;
MINNIE DRAYER, Administrative Disciplinary Judge, ADC;
J. BANKS, Unit Warden, Varner Unit, ADC;
BENNY MOORE, CO II, Varner Unit, ADC; MARK ALLEN,
CO II, Varner Unit, ADC; DERRICK JONES, CO II,
Varner Unit, ADC; STEPHEN POE, Sergeant;
PATRICIA COOLEY, Sergeant, Varner Unit, ADC;
STEVENS, Captain, Varner Unit, ADC; JOHNSON,
Lieutenant, Varner Unit, ADC; S. BYERS, Nurse,
Varner Unit, ADC; and GENE CAROL ABLES, Nurse,
Varner Unit, ADC
DEFENDANTS

ORDER
This case is in a procedural tangle. The remaining defendants have filed
motions for summary judgment. NQ 187 & 191. McEwing missed the deadline
for responding to those motions, and Magistrate Judge Volpe issued his

proposed findings and recommendations. NQ 195. Then McEwing responded
to the motions, mistakenly believing he had thirty days to do so. NQ 201.
McEwing also filed a motion to continue, Ng 198, saying that he has asked a
prison guard to submit an affidavit that will corroborate McEwing' s claims.
McEwing timely objected to the recommendations. NQ 201. And he's filed a
motion to strike. Ng 202.
The Court rejects McEwing' s request for a continuance. This case needs
resolution. McEwing has vigorously litigated his claims for more than two
years. And although McEwing has requested an affidavit from a prison
guard, it's unclear whether the guard has agreed to give one or what he will
say. This Court will consider all of McEwing' s post-recommendation filings
but will not halt this case for more discovery.
The Court rejects the motion to strike the Hospital Defendants' Local
Rule 56.1 statement of material facts. First, McEwing put his medical
condition in issue by filing this case. Second, striking the statement would be
too harsh a sanction for filing some medical records. The Court instead will
seal the materials.
On de novo review, the Court adopts the sovereign-immunity

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recommendation and the failure-to-exhaust recommendation, but declines the
excessive-force recommendation and the Plummer recommendation. NQ 195;
FED. R. CIV. P. 72(b)(3). McEwing's objections, NQ 201, are sustained for now
in part. The Court would appreciate further consideration and another
recommendation- based on the new completed record and, at Judge Volpe' s
discretion, a pre-jury hearing- about excessive force and whether Plummer
was working in the early morning hours of 26 February 2011. Because this is
an older case, the Court would appreciate the new recommendation as soon
as practicable.

* * *
Motion for continuance, NQ 198, denied. Motion to strike, NQ 202, denied.
DocketNQ 193, and all attachments, sealed. Recommendation, NQ 195, adopted
in part and declined in part. Motion for summary judgment, NQ 187, granted
in part and denied in part. Motion for summary judgment, NQ 191, granted.
McEwing's claims against Spencer, Moore, Jones, Poe, Johnson, Cooley,
Stevens, Washington, Drayer, Ables, Shelly Byers, and Newton are dismissed
without prejudice for failure to exhaust. McEwing' s property claims against
Price are dismissed without prejudice. Two claims remain in this case: the

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property claim against Plummer; and the excessive-force claims against
Hutcheson, Shores, Cockrell, Hayes, Banks, Allen, and Jared Byers.
So Ordered.

D.P. Marshall Jr. (/
United States District Judge

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