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Green v. Woolfolk, 5:19-cv-111-DPM-BD. (2019)

Court: District Court, E.D. Arkansas Number: infdco20191216622 Visitors: 7
Filed: Dec. 10, 2019
Latest Update: Dec. 10, 2019
Summary: ORDER D.P. MARSHALL, JR. , District Judge . On de novo review, the Court adopts Magistrate Judge Deere's partial recommendation, No. 69, and overrules Green's objections, No. 70. FED. R. CIV. P. 72(b)(3). The motion to dismiss, No. 56, is granted; and Green's claims against Ball, Culclager, Kelley, Lawrence, Minor, Naylor, Reed, and Smith are dismissed without prejudice. The Court notes but overrules Green's objection as to Defendant Smith. No. 70 at 1. If Green wants to add facts
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ORDER

On de novo review, the Court adopts Magistrate Judge Deere's partial recommendation, No. 69, and overrules Green's objections, No. 70. FED. R. CIV. P. 72(b)(3). The motion to dismiss, No. 56, is granted; and Green's claims against Ball, Culclager, Kelley, Lawrence, Minor, Naylor, Reed, and Smith are dismissed without prejudice. The Court notes but overrules Green's objection as to Defendant Smith. No. 70 at 1. If Green wants to add facts supporting a failure-to-protect claim against Smith, then he must do so in a motion to amend his complaint, not in his objections to the recommendation.

On exhaustion, grievance MX-18-00857 presents a close issue that's similar to one the Court faced a similar one in Hamner v. Griffin. No. 143 in E.D. Ark. No. 5:18-cv-60-DPM. In that case, though, the Step Two responses were murkier; it wasn't clear that the prison was paring down Hamner's claims. In Green's case, the Step Two response is a bit clearer: The response directly quotes Green's grievance — but only the first sentence. It doesn't quote the rest or address any of the other issues raised. No. 58-6 at 3-4. This was in keeping with ADC policy. No. 58-1 at 5. In these circumstances, the partial quote and narrow response made it sufficiently clear that the remaining issues weren't being addressed and thus would not be exhausted by that grievance MX-18-00857. The rest of the grievance process focused on the medical care Green received from Nurse Cook, not the alleged indifference by Blunt, Graydon, Ratliff, and Daniels. The motion for summary judgment on the issue of exhaustion, No. 58, is therefore granted as well. Green's claims against Defendants Kelly, Blunt, Daniels, Graydon, and Ratliff are dismissed without prejudice.

So Ordered.

Source:  Leagle

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