Whitney v. Kelly et al

Filing 102

ORDER adopting the 62 Proposed Findings and Recommendations in their entirety; granting in part and denying in part 37 Separate defendants Laquista Swopes, Lisa Childress, and Faron Clemmons' motion for summary judgment; dismissing without prejudice Mr. Whitney's retaliation and excessive force claims against Officer Swopes, Sergeant Childress, and Lieutenant Clemmons for failure to exhaust administrative remedies; to the extent that Mr. Whitney attempts to bring a claim based on Sergeant Childress or any other defendants' alleged interference with his grievances, his claim is dismissed with prejudice; and to the extent that Mr. Whitney moves to disqualify Judge Kearney ( 70 , at 4) the Court denies his request. Signed by Judge Kristine G. Baker on 6/27/2017. (mef)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION
JAMES E. WHITNEY
ADC #163817
v.

PLAINTIFF

Case No. 5:16-cv-00353 KGB/JTK

WENDY KELLEY, et al.

DEFENDANTS
ORDER

The Court has received Proposed Findings and Recommendations submitted by United
States Magistrate Judge Jerome T. Kearney (Dkt. No. 62). Plaintiff James E. Whitney filed
objections to the Proposed Findings and Recommendations, but his objections were untimely filed
(Dkt. No. 70). However, even if the Court treated Mr. Whitney’s objections as timely filed, after
a review of the Proposed Findings and Recommendations and Mr. Whitney’s objections, as well
as a de novo review of the record, the Court adopts the Proposed Findings and Recommendations
in their entirety (Dkt. No. 62). To the extent that Mr. Whitney moves to disqualify Judge Kearney
(Dkt. No. 70, at 4), the Court denies his request. See United States v. Martin, 757 F.3d 776, 778
(8th Cir. 2014) (quoting Liteky v. United States, 510 U.S. 540, 555 (1994) (“‘[O]pinions formed
by the judge on the basis of facts introduced or events occurring in the course of . . . prior
proceedings, do not constitute a basis for a bias or partiality motion unless they reveal a deepseated favoritism or antagonism that would make fair judgment impossible.’”)); United States v.
Melton, 738 F.3d 903, 906 (8th Cir. 2013) (“Judicial rulings rarely establish a valid basis for
recusal.”).
It is therefore ordered that:
1.

Separate defendants Laquista Swopes, Lisa Childress, and Faron Clemmons’

motion for summary judgment is granted in part and denied in part (Dkt. No. 37).

2.

Mr. Whitney’s retaliation and excessive force claims against Officer Swopes,

Sergeant Childress, and Lieutenant Clemmons are dismissed without prejudice, for failure to
exhaust administrative remedies.
3.

To the extent that Mr. Whitney attempts to bring a claim based on Sergeant

Childress or any other defendants’ alleged interference with his grievances, his claim is dismissed
with prejudice. Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993) (alteration in original)
(quoting Azeez v. DeRobertis, 568 F. Supp. 10 (N.D. Ill. 1982)) (“‘[A prison] grievance procedure
is a procedural right only, it does not confer any substantive right upon the inmates. Hence, it does
not give rise to a protected liberty interest requiring the procedural protections envisioned by the
fourteenth amendment.’”)).
It is so ordered this 27th day of June, 2017.

__________________________________
Kristine G. Baker
United States District Judge

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