Barbee v. Smarjessi et al

Filing 45

PARTIAL RECOMMENDED DISPOSITION recommending that Mr. Barbee's 37 Motion for Summary Judgment be DENIED. Signed by Magistrate Judge Beth Deere on 01/14/2014. (rhm)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION
SYLVESTER O. BARBEE
ADC #131311
V.

PLAINTIFF

NO. 5:13CV00225-JLH-BD

ANGELIKA SMARJESSE, et al.

DEFENDANTS

PARTIAL RECOMMENDED DISPOSITION
I.

Procedures for Filing Objections:
This Partial Recommended Disposition (“Recommendation”) has been sent to

United States District Judge J. Leon Holmes. Any party may file written objections to
this Recommendation.
Objections must be specific and must include the factual or legal basis for the
objection. An objection to a factual finding must identify the finding of fact believed to
be wrong and describe the evidence that supports that belief.
An original and one copy of your objections must be received in the office of the
United States District Court Clerk within fourteen (14) days of this Recommendation. A
copy will be furnished to the opposing party.
If no objections are filed, Judge Holmes can adopt this Recommendation without
independently reviewing all of the evidence in the record. By not objecting, you may also
waive any right to appeal questions of fact.

Mail your objections to:
Clerk, United States District Court
Eastern District of Arkansas
600 West Capitol Avenue, Suite A149
Little Rock, AR 72201-3325
II.

Discussion:
Plaintiff Sylvester O. Barbee, an Arkansas Department of Correction (“ADC”)

inmate, filed this lawsuit pro se under 42. U.S.C. § 1983. (Docket entry #2) Mr. Barbee
alleges that Defendants Smarjesse and Weekly acted with deliberate indifference to his
safety by failing to ensure sanitary food preparation, and that Defendant Austin acted with
deliberate indifference to his medical needs after he contracted salmonella. Mr. Barbee
has now moved for summary judgment on these claims. (#37) Defendants have
responded to Mr. Barbee’s motion, and Mr. Barbee has replied to the response. (#41,
#43, #44) The Court recommends that Mr. Barbee’s motion for summary judgment (#37)
be DENIED.
Summary judgment is appropriate when the evidence, viewed in the light most
favorable to the nonmoving party, presents no genuine dispute as to any material fact.
Fed.R.Civ.P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322–23, 106 S.Ct. 2548 (1986);
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 246, 106 S.Ct. 2505 (1986). The moving
party bears the initial responsibility of demonstrating the absence of a genuine dispute of
material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553 (1986).
If the moving party meets this burden, the nonmoving party must respond by coming
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forward with specific facts establishing a genuine dispute for trial. Torgerson v. City of
Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc). Only when the nonmoving
party cannot come forward with enough evidence to establish a necessary element of the
case is the moving party is entitled to judgment as a matter of law. Celotex Corp., 447 U
.S. at 322–23, 106 S.Ct. at 2552.
Here, Mr. Barbee has not provided any evidence to support judgment as a matter of

law in his favor. Although he provides a few excerpts from discovery responses that he
has received from Defendants Smarjesse and Weekly, he has failed to establish that the
material facts are undisputed. Mr. Barbee’s self-serving conclusory statements cannot
support a finding in his favor at this time. Moreover, because the parties have not had an
opportunity to complete discovery, Mr. Barbee’s motion is premature.
III.

Conclusion:
The Court recommends that Mr. Barbee’s motion for summary judgment (#37) be

DENIED, dated this 14th day of January, 2014.

___________________________________
UNITED STATES MAGISTRATE JUDGE

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