Chestang v. Griffin et al

Filing 69

ORDER adopting in part and rejecting in part 11 Recommendation; rejecting 55 Recommendation; allowing Chestang 30 days to attempt service on defendant Wright based on new information discovered about Wright's first initial; adopting 65 R ecommendation; dismissing, without prejudice, Defendants Teri Kennedy and Lesa Jones; adopting 68 Recommendation; dismissing, without prejudice, Defendant Nurse Jackson; allowing Chestang to seek leave to amend his complaint with additional identifying information if it will identify the proper defendant to allow service. Signed by Chief Judge Brian S. Miller on 9/28/2018. (kdr)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION
KEONDRA M. CHESTANG,
ADC #134005
v.

PLAINTIFF

CASE NO. 5:18-CV-00051 BSM

RORY GRIFFIN, et al.

DEFENDANTS
ORDER

Four partial recommended dispositions (“recommendations,” hereafter referenced by
their docket numbers) [Doc. Nos. 11, 55, 65, and 68] filed by United States Magistrate Judge
Joe J. Volpe have been received.

Plaintiff KeOndra Chestang has objected to

recommendations 11 and 55. After de novo review of the record, recommendation 11 is
adopted in part and rejected in part, and recommendation 55 is rejected. No objections were
filed to recommendations 65 and 68.

After careful review of

the record, these

recommendations are adopted. Pursuant to 28 U.S.C. § 1915(a)(3), an in forma pauperis
appeal from this order would not be taken in good faith.
I. RECOMMENDATION 11
A.

Counts One and Two

Recommendation 11 [Doc. No. 11] is rejected so far as it recommends dismissal of
counts one and two. The statute of limitations was tolled while Chestang exhausted
administrative remedies within the prison system.
Counts one and two allege violations of Chestang’s constitutional rights on November
27, 2014. Amended Compl., Doc. No. 9. Chestang brings his claims under 42 U.S.C.

section 1983, which has a three-year statute of limitations that “is tolled during the period of
time the application for . . . administrative remedies is pending.” Ark. Code Ann. § 16-106301; Winston v. Kelly, 2013 WL 593558 at *1 (Feb. 15, 2013); see Bell v. Fowler, 99 F.3d
262, 266 (8th Cir. 1996) (state law determines statute of limitations for section 1983 claims).
Chestang formally filed a grievance on November 27, 2014, the same day as the alleged
violations, and his appeal was denied on March 15, 2015. Compl., Doc. No. 2. Chestang
filed suit on February 16, 2018, see Compl., Doc. No. 2, within three years of the denial of
his appeal. Counts one and two may therefore go forward.
B.

Counts Nine, Ten, and Eleven

Recommendation 11 [Doc. No. 11] is adopted as to counts nine, ten, and eleven.
Counts nine, ten, and eleven are dismissed without prejudice. The incidents occurring in the
Varner supermaximum security unit may proceed together, but joinder is improper for
incidents occurring at a different facility. See Fed. R. Civ. P. 20(a)(2); Phillips v. Hurley,
2013 WL 5406620 at *2 (E.D. Mo. Sept. 25, 2013).
C.

Remainder of Recommendation 11

No objections were filed to the portion of recommendation 11 permitting counts three
through eight to proceed. No objections were filed to the portion of recommendation 11
recommending dismissal of defendants Bailey, Sorrels, Webb, Warren, Flatt, Chism, Stevie,
Madden, and Thurman. These recommendations are therefore adopted.

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II. RECOMMENDATION 55
Recommendation 55 is rejected. Chestang has thirty days to attempt service on
defendant Wright based on new information Chestang discovered about Wright’s first initial.
See Doc. No. 62.
III. RECOMMENDATION 65
Recommendation 65 is adopted. Defendants Teri Kennedy and Lesa Jones are
dismissed without prejudice.
IV. RECOMMENDATION 68
Recommendation 68 is adopted. Defendant Nurse Jackson is dismissed without
prejudice. Chestang may seek leave to amend his complaint with additional identifying
information if it will identify the proper defendant to allow service.
IT IS SO ORDERED this 28th day of September 2018.

_________________________________
UNITED STATES DISTRICT JUDGE

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