Pollock v. Kelly et al

Filing 29

ORDER ADOPTING 28 REPORT AND RECOMMENDATIONS; further GRANTING 20 Motion for Summary Judgment. This case is DISMISSED WITHOUT PREJUDICE. Signed by Honorable Susan O. Hickey on February 13, 2017. (hnc)

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IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS HOT SPRINGS DIVISION DON RICHARD POLLOCK v. PLAINTIFF Civil No. 6:15-cv-06066 WENDY KELLY; and MICHAEL LITTLETON DEFENDANTS ORDER Before the Court is the Report and Recommendation filed January 19, 2017, by the Honorable Barry A. Bryant, United States Magistrate Judge for the Western District of Arkansas. (ECF No. 28). Plaintiff filed a pro se action pursuant to 42 U.S.C. § 1983 on July 2, 2016, alleging that his constitutional rights were violated because Defendants failed to protect him from attack by a fellow inmate. (ECF No. 1). Defendants filed a summary judgment motion on July 28, 2016. (ECF No. 20). Defendants argue they are entitled to summary judgment because (1) Plaintiff failed to exhaust his administrative remedies prior to filing suit; (2) Plaintiff failed to state a constitutional claim against them; (3) Defendants are entitled to qualified immunity on the individual capacity claims; and (4) Defendants are entitled to sovereign immunity on the official capacity claims. Judge Bryant recommends that Defendants’ summary judgment motion should be granted because Plaintiff failed to exhaust his administrative remedies pursuant to the Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997(e)(a). In light of the foregoing, Judge Bryant did not address Defendants’ other arguments in favor of summary judgment. No party has filed objections to the Report and Recommendation, and the time to object has passed. See 28 U.S.C. § 636(b)(1). Upon review, the Court adopts the Report and Recommendation in toto. Accordingly, the Court finds that Defendants’ summary judgment motion (ECF No. 20) should be and hereby is GRANTED. Plaintiff’s action is DISMISSED WITHOUT PREJUDICE. IT IS SO ORDERED, this 13th day of February, 2017. /s/ Susan O. Hickey Susan O. Hickey United States District Judge 2

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