Otero v. Smith et al

Filing 18

RULING AND ORDER Adopting Report and Recommendation of the U.S. Magistrate Judge 17 as the Court's opinion herein. Defendant's Motion for Summary Judgment (doc. 16) is GRANTED. Plaintiff's claims against Anthony Whitiker, Nathani el Murray, and Calvin Walker are DISMISSED WITHOUT PREJUDICE for Plaintiff's failure to timely effect service upon them. Plaintiff's Eighth Amendment claims against Jimmy Smith, Sam Adams, Joseph Barr, Marcus Callahan, and Edward Honeycutt are DISMISSED WITH PREJUDICE for failure to exhaust administrative remedies. Plaintiff's remaining claims against Jimmy Smith, Sam Adams, Joseph Barr, Marcus Callahan, and Edward Honeycutt regarding disciplinary proceedings and the handling of his grievance are DISMISSED WITH PREJUDICE as frivolous and for failure to state a claim upon which relief may be granted. The Court declines to exercise supplemental jurisdiction in connection with any potential remaining state law claims asserted against Jimmy Smith, Sam Adams, Joseph Barr, Marcus Callahan, and Edward Honeycutt. Signed by Chief Judge Brian A. Jackson on 1/31/2017. (PJH)

additional defendants named in this action, for Plaintiffs failure to ensure proper
service of process pursuant to Federal Rule of Civil Procedure ("Rule") 4(m). (Doc. 17
at pp. 2 n. 1, 10; see also Docs. 11, 12).1
The Report and Recommendation specifically notified Plaintiff that, pursuant
to 28 U.S.C. § 636(b)(1), he had fourteen (14) days from the date he received the
Report and Recommendation to file written objections to the proposed findings of fact,
conclusions of law, and recommendations therein. (Doc. 17 at p. 1). Plaintiff did not
file objections to the Magistrate Judge's Report and Recommendation.
Having carefully considered the underlying Complaint, the instant motion,
and related filings, the Court APPROVES the Magistrate Judge's Report and
Recommendation, and hereby ADOPTS same as its own findings of fact, conclusions
oflaw, and recommendations contained therein.
Accordingly,

IT

IS

ORDERED

that

the

Magistrate

Judge's

Report

and

Recommendation (Doc. 17) is ADOPTED as the Court's opinion herein.
IT IS FURTHER ORDERED that Defendants' Motion for Summary
Judgment (Doc. 16) is GRANTED.

1 Although Plaintiffs Complaint (Doc. 1) names Anthony Whitiker, Nathaniel Murray, and Calvin
Walker as defendants, the record demonstrates that these defendants have not yet been served. (Doc.
11). Plaintiff was informed of the lack of service by the Clerk of Court but failed to eorreet this
procedural defect. Therefore, the Magistrate Judge recommends that Anthony Whitiker, Nathaniel
Murray and Calvin Walker be dismissed without prejudice "for failure of the plaintiff to effect timely
service upon them." (Doc. 17 at p. 2, n. 1).

2

IT IS FURTHER ORDERED that Plaintiffs claims against Anthony
Whitiker, Natha niel Murray, and Calvin Walker are DISMISSED WITHOUT

PREJUDICE for Plaintiffs failure to timely effect service upon them.
IT IS FURTHER ORDERED that Plaintiffs Eighth Amendment claims
against Jimmy Smith, Sam Adams, Joseph Barr, Marcus Callahan, and Edward
Honeycutt are

DISMISSED WITH PREJUDICE for failure to exha ust

administrative r emedies.

IT IS FURTHER ORDERED that Plaintiffs remammg claims against
Jimmy Smith, Sam Adams, Joseph Barr, Marcus Callahan, and Edward Honeycutt
regarding disciplinary proceedings a nd the handling of his grievance are

DISMISSED WITH PREJUDICE as frivolous and for failure to state a claim upon
which relief may be granted.

IT IS FURTHER ORDERED that the Court declines to exerc1se
supplemental jurisdiction in connection with any potential remaining state law
claims asserted against Jimmy Smith, Sam Adams, Joseph Barr, Marcus Callahan,
and Edward Honeycutt.

s-

Ba ton Rouge, Louisiana, this 3l..J.day of January, 2017.

BRIAN A. JAC
, CHIEF JUDGE
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

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