RECOMMENDED DISPOSITION
J. THOMAS RAY, Magistrate Judge.
The following Recommended Disposition ("Recommendation") has been sent to United States Chief District Judge Brian S. Miller. Any party may file written objections to this Recommendation. Objections must be specific and include the factual or legal basis for disagreeing with the Recommendation. An objection to a factual finding must specifically identify the finding of fact believed to be wrong and describe the evidence that supports that belief.
An original and one copy of the objections must be received by the Clerk of this Court within fourteen (14) days of this Recommendation. If no objections are filed, Judge Miller can adopt this Recommendation without independently reviewing all of the evidence in the record. By not objecting, you may also waive any right to appeal questions of fact.
I. Discussion
Plaintiff Kenneth Bush ("Bush") is a prisoner in the Arkansas Department of Correction. On November 28, 2016, Bush filed this pro se § 1983 action alleging that, in September of 2016, Defendants Wendy Kelley ("Kelley"), Roderick Davis ("Davis"), Rory Griffin ("Griffin"), Samantha Treadway ("Treadway"), and Tony Tucker ("Tucker") violated his constitutional right to receive adequate medical care by failing to give him steroids for shoulder pain. Doc. 2.
During screening mandated by 28 U.S.C. § 1915A, the Court dismissed all claims against Kelley, without prejudice, because Bush failed to plead a viable claim for relief against her. Docs. 4 & 7.
On April 27, 2017, the Court granted Davis's Motion to Dismiss all claims Bush had asserted against him, without prejudice, because Bush admitted in the Complaint that he did not properly exhaust the only grievance he filed about the alleged failure to receive steroids in September of 2016. Docs. 18, 29, & 32.
Griffin has filed a Motion for Summary Judgment that renews the identical exhaustion argument raised by Davis in his Motion to Dismiss. Doc. 26. Bush has not responded to that Motion, and the time for doing so has now expired. Doc. 30.
Because Bush admits that he failed to properly exhaust the only grievance he filed in connection with the claim he is seeking to assert against Griffin in this action, the Court recommends that Griffin's Motion for Summary Judgment be granted and that Bush's claim against him be dismissed, without prejudice.
Treadway and Tucker have not yet been served. Docs. 14, 15, 21, & 34. Nevertheless, the Court's determination that Bush did not properly exhaust the only grievance he filed about his September of 2016 inadequate medical care claim applies equally to Treadway and Tucker. Thus, the Court also recommends Bush's claims against Treadway and Tucker be dismissed, without prejudice, and that his Motion for Service on Treadway (Doc. 35) be denied, as moot. See Angelo Iafrate Constr. LLC v. Potashnick Constr., Inc. 370 F.3d 715, 722 (8th Cir. 2004) (explaining that "if an answering party asserts a defense on the merits that equally applies to the other defendant, the success of the defense operates as a discharge to all the defendants"); Owens/Mitchell v. Burl, Case No. 4:14CV00126 DPM (E.D. Ark. May 7, 2014) (unpublished opinion) (holding, in a prisoner § 1983 action, that the "non-moving Defendants" were entitled dismissal based on a statute of limitations defense that was raised by other Defendants), aff'd without comment, 2014 WL 1820639 (8th Cir. Sept. 29, 2014) (unpublished decision).
II. Conclusion
IT IS THEREFORE RECOMMENDED THAT:
1. Defendant Griffin's Motion for Summary Judgment (Doc. 26) be GRANTED, and that Bush's claims against all remaining Defendants be DISMISSED, WITHOUT PREJUDICE.
2. Bush's Motion for Service (Doc. 35) be DENIED, AS MOOT.
