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Coleman v. McNary

United States District Court, E.D. Arkansas, Eastern Division

October 2, 2014

DELWRICK D. COLEMAN, ADC #656538, Plaintiff,
v.
W. McNARY, Captain, East Arkansas Regional Unit, ADC; et al., Defendants.

PROPOSED FINDINGS AND RECOMMENDATIONS

JOE J. VOLPE, Magistrate Judge.

INSTRUCTIONS

The following recommended disposition has been sent to United States District Judge D. P. Marshall Jr. Any party may serve and file written objections to this recommendation. Objections should be specific and should include the factual or legal basis for the objection. If the objection is to a factual finding, specifically identify that finding and the evidence that supports your objection. An original and one copy of your objections must be received in the office of the United States District Court Clerk no later than fourteen (14) days from the date of the findings and recommendations. The copy will be furnished to the opposing party. Failure to file timely objections may result in waiver of the right to appeal questions of fact.

If you are objecting to the recommendation and also desire to submit new, different, or additional evidence, and to have a hearing for this purpose before the District Judge, you must, at the same time that you file your written objections, include the following:

1. Why the record made before the Magistrate Judge is inadequate.

2. Why the evidence proffered at the hearing before the District Judge (if such a hearing is granted) was not offered at the hearing before the Magistrate Judge.

3. The detail of any testimony desired to be introduced at the hearing before the District Judge in the form of an offer of proof, and a copy, or the original, of any documentary or other non-testimonial evidence desired to be introduced at the hearing before the District Judge.

From this submission, the District Judge will determine the necessity for an additional evidentiary hearing, either before the Magistrate Judge or before the District Judge.

Mail your objections and "Statement of Necessity" to:

I. INTRODUCTION

Plaintiff, Delwrick Coleman, a state inmate incarcerated at the East Arkansas Regional Unit of the Arkansas Department of Correction (ADC), filed this action pro se pursuant to 42 U.S.C. ยง 1983. (Docs. No. 7.) He alleges Defendants subjected him to unconstitutional living conditions for seven to eight days in February 2013, in violation of the Eighth Amendment, and asks for monetary relief.[1]

Before the Court is Defendants' Motion for Summary Judgment (Doc. No. 29), to which Plaintiff has responded (Doc. No. 33.) The matter is, therefore, ready for a decision.

According to his Complaint, Defendants Allen and Williams placed him in a cell contaminated with feces on February 22, 2013, without making any attempts to clean the cell. (Doc. No. 7 at 4-5.) A day later, Captain Lane attempted to clean the cell, but missed many spots; and on February 28, 2013, former Defendant McNary ordered the cell to be cleaned, but again, missed many spots. ( Id. ) After seven and a half days, officers moved Plaintiff to another cell. ( Id. at 5.)

During his deposition, Plaintiff testified that when Allen and Williams placed him in the cell, he told Allen about the feces in the cell and Allen responded that he would return to clean the cell. (Doc. No. 29-1 at 4.) Defendant Williams was present at this time, but did not speak to Plaintiff. ( Id. at 5.) The next day, Captain Lane came and cleaned the cell, while Williams videotaped his actions. ( Id. at 6.) Plaintiff continued to complain about feces in the cell until McNary moved him several days later. ( Id. at 5.) Plaintiff claims the smell ...


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