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McEwing v. Shores

United States District Court, E.D. Arkansas, Pine Bluff Division

January 6, 2015

ANDRE McEWING, ADC # 116327, Plaintiff,
v.
RANDY SHORES; et al., Defendants.

PROPOSED FINDINGS AND RECOMMENDATIONS INSTRUCTIONS

JOE J. VOLPE, Magistrate Judge.

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 a 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 new hearing for this purpose before either the District Judge or Magistrate Judge, you must, at the time you file your written objections, include the following:

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

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

3. The details of any testimony desired to be introduced at the new hearing 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 new hearing.

From this submission, the District Judge will determine the necessity for an additional evidentiary hearing. Mail your objections and "Statement of Necessity" to:

Clerk, United States District Court Eastern District of Arkansas 600 West Capitol Avenue, Suite A149 Little Rock, AR XXXXX-XXXX

DISPOSITION

I. INTRODUCTION

Plaintiff, Andre McEwing, alleges violations of his constitutional rights (Doc. No. 60). The undersigned previously recommended dismissal of all Mr. McEwing's claims. (Doc. No. 195.) Mr. McEwing filed a late response to the Motion for Summary Judgment (Doc. No. 201), so some of his claims were referred back for further consideration. (Doc. No. 203 at 3.)

Remaining are Mr. McEwing's excessive force claims against Defendants Hutcheson, Shores, Cockrell, Hayes, Banks, Allen, and Jared Byers and a deliberate indifference claim against Defendant Plummer. (Doc. Nos. 203 at 4, and 211.) Mr. McEwing's claims arise from a February 26, 2011, prison disturbance. Mr. McEwing admits he got into a physical altercation with prison officials and a riot erupted in the 10 Barracks. The inmates eventually surrendered to the correctional officers, but as retribution for injuring officers, Defendants sprayed Mr. McEwing with mace and beat him to semi-consciousness. (Doc. No. 60.)

In fully considering the remaining claims, the Court held a pre-jury evidentiary hearing on December 30, 2014. See Johnson v. Bi-State Justice Center, 12 F.3d 133, 135 (8th Cir. 1993). In considering the merits of this matter, the Court has carefully considered the testimony from the hearing, the video evidence presented at the hearing, and the pleadings and evidence in support of the pleadings. As required by the pre-jury process, the Court makes no credibility findings in rendering its decision. Based on a ...


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