Dunahue v. Watson et al
ORDER denying as moot 31 Dunahue's Motion for an Extension of Time; allowing Dunahue until and including, 30 days from the entry of this Order, to file a Response to 32 Defendants' Motion for Partial Summary Judgment and a separate Statement of Disputed Facts; and granting, as modified in this Order 35 Defendants' Motion for a Protective Order. Signed by Magistrate Judge J. Thomas Ray on 11/16/2017. (kdr)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION
REGINALD L. DUNAHUE,
RANDY WATSON, Warden,
Varner Super Max Unit, ADC, et al.
Plaintiff Reginald Dunahue ("Dunahue") has filed this pro se ' 1983 action
alleging that, on or about July 19, 2015, Defendants used excessive force against
him, failed to provide him with adequate medical care for his injuries, denied him
adequate nutrition, and exposed him to toxic vapors. Doc. 7.
There are four non-dispositive Motions pending, which the Court will address
I. Dunahue's Motion For an Extension of Time
On October 23, 2017, Dunahue filed a Motion for an Extension of Time to
provide a service address for Defendant Sergeant Sedrick Foote ("Foote") and
Lieutenant John Herrington ("Herrington"), both of whom no longer work for the
Arkansas Department of Correction. Doc. 31. The Motion is denied, as moot,
because: (1) the Court has not imposed a deadline for Dunahue to provide service
information for either Defendant; (2) on October 26, 2017, the Court ordered the
U.S. Marshal to attempt service on Herrington at his sealed private address; and (3)
on November 8, 2017, Foote filed an Answer. Docs. 37 & 42.
II. Defendants' Motion for Partial Summary Judgment
Defendants have filed a Motion for Partial Summary Judgment, a Brief in
Support, and a Statement of Facts arguing that some of Dunahue's claims should be
dismissed, without prejudice, because he failed to properly exhaust his
administrative remedies as to those claims. Docs. 32, 33, & 34.
At the summary judgment stage, a plaintiff cannot rest upon mere allegations
and, instead, must meet proof with proof. See Fed. R. Civ. P. 56(e). This means
that Dunahue's Response should include his legal arguments, as well as affidavits, 1
prison records, or other evidence establishing that there is a genuine issue of material
fact that must be resolved at a hearing or trial. Furthermore, pursuant to Local Rule
56.1, Dunahue's Response must be accompanied by a separate document captioned
“Statement of Disputed Facts”, which specifically identifies: (a) any disagreement
he has with the numbered factual assertions in Defendants= Statement of Undisputed
The affidavit must be based upon the personal knowledge of the person executing the
affidavit and must be either: (1) sworn and subscribed to by a notary public; or (2) executed under
penalty of perjury, as provided for by 28 U.S.C. ' 1746.
Facts2 (Doc. 33); and (b) any other disputed facts that he believes must be resolved
at a hearing or trial.
Finally, if Dunahue intends to rely on documents that have been previously
filed in the record, he must specifically refer to those documents by docket number,
page, date, and heading. The Court will not sift through the file to find support for
Plaintiff=s factual contentions. See Crossley v. Georgia-Pacific, Corp., 355 F.3d
1112, 1113-14 (8th Cir. 2004) (affirming the grant of summary judgment because a
plaintiff failed to properly refer to specific pages of the record that supported his
III. Defendants' Motion for a Protective Order
Defendants have filed a Motion seeking a Protective Order that stays all
discovery until there is final ruling on their pending Motion for Partial Summary
Judgment. Doc. 35. The Court finds good cause for granting that Motion as to the
merits of Dunahue's claims, but not as to any documents or information Dunahue
may need to properly respond to the pending Motion for Partial Summary Judgment.
Accordingly, the Motion for a Protective Oder is granted, as modified.
If Plaintiff disputes any of the facts in Defendants= Statement of Undisputed Facts, he
must identify each numbered paragraph that contains the facts he disputes and, for each paragraph,
explain why he disputes those facts.
Discovery in this case is stayed, with the exception of any documents or information
related to Dunahue's attempts to exhaust his administrative remedies regarding the
claims raised in this lawsuit. The stay will be lifted, in a separate Order, after a final
ruling on Defendants' Motion for Partial Summary Judgment is entered.
IT IS THEREFORE ORDERED THAT:
Dunahue's Motion for an Extension of Time (Doc. 31) is DENIED, AS
Dunahue has until and including, thirty days from the entry of this
Order, to file a Response to Defendants= Motion for Partial Summary Judgment and
a separate Statement of Disputed Facts that comply with Fed. R. Civ. P. 56, Local
Rule 56.1, and the instructions in this Order. Dunahue is advised that the failure to
timely and properly do so will result in: (a) all of the facts in Defendants= Statement
of Undisputed Facts being deemed admitted by Dunahue, pursuant to Local Rule
56.1(c); and (b) the possible dismissal of this action, without prejudice, pursuant to
Local Rule 5.5(c)(2).
Defendants' Motion for a Protective Order (Doc. 35) is GRANTED, AS
MODIFIED IN THIS ORDER.
Dated this 16th day of November, 2017.
UNITED STATES MAGISTRATE JUDGE
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