Doering v. Kelley et al
ORDER partly adopting and partly declining the 50 Recommendation; partly sustaining the 51 Objection; and partly granting and partly denying the 43 Motion for partial summary judgment. Doering's chronic-care claim is dismissed without prejudice for failure to exhaust. Signed by Judge D. P. Marshall Jr. on 11/9/2017. (ljb)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION
WENDY KELLEY, Director, Arkansas
Department of Correction; RORY GRIFFIN,
Deputy Director, ADC; CORRECT CARE
SOLUTIONS, Health Care Provider; JASON
KELLEY, Health Services Administrator, Varner
Unit, ADC; STUCKEY, Doctor; POWELL,
Infirmary Manager; and HEATHER ALLEN,
Varner Unit, ADC
1. On de nova review, the Court partly adopts and partly declines
the recommendation, NQ 50, and partly sustains Director Kelley' s
objection, NQ 51. FED. R. CIV. P. 72(b)(3).
2. The Court adopts the unopposed part of the recommendation
dealing with Doering' s claim about being denied chronic care. N g 50 at 5 .
Doering' s chronic-care claim is dismissed without prejudice for failure
3. Doering' s claims against Kelley for missed medication present
a closer call. First, a clarification: It doesn't appear that Kelley's motion
challenges exhaustion on Doering's January 2017 grievance.
N g 44
at ~ 15. So the Court won't address that grievance or any claims arising
As to Doering's October 2016 and November 2016 grievances, the
Court sustains Kelley's objection.
NQ 43-3 at 8 & 18.
November grievance makes complaints against the infirmary manager,
medical company, doctor and whatever nurse is responsible for the
ordering of my medication and the Deputy Director of Health[.]" NQ433 at 18. And his October grievance complains about "whoever is in
charge of reordering and making sure I receive my medication without
delay[.]" NQ 43-3 at 8. In these two grievances, Doering identified several
people - by position -who he was grieving against. But he didn't name
the Director or complain that she was responsible for his problems in
receiving his medications.
The Court concludes that these two grievances present a situation
akin to Burns v. Eaton, 752F.3d1136, 1141-42 (8th Cir. 2014). Because his
grievances identified- at least by position - several folks he was
complaining about, any complaint against Kelley arising from these
grievances amounts to "'a new grievance
. . . completely
unexhausted[.]"' Burns, 752 F.3d at 1142. Kelley's motion for partial
summary judgment is granted as to Doering' s claims arising from his
October 2016 and November 2016 grievances.
Doering' s August 2016 grievance, however, presents a different
situation. Doering stated that he turned in a refill for his blood pressure
medication but hadn't received his medicine. NQ 43-3 at 12. The ADC
could have denied this grievance on procedural grounds: Doering didn't
list the names or positions of anyone he was complaining about. But the
ADC addressed the merits of this much broader complaint. Here, it's
clearer that "'prison officials decline[ d] to enforce their own procedural
requirements and opt[ed] to consider otherwise-defaulted claims on the
merits."' Burns, 752F.3d at 1141. These circumstances are closer to those
in Hammett v. Cofield, 681 F .3d 945, 947-48 (8th Cir. 2012). The Director's
motion for partial summary judgment is therefore denied as to Doering' s
claims arising from the August 2016 grievance.
Recommendation, NQ 50, partly adopted and partly declined.
Objection, NQ 51, partly sustained.
Motion for partial summary
judgment, NQ 43, partly granted and partly denied.
D.P. Marshall Jr.
United States District Judge
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