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Morrow v. Hughey

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

June 11, 2015

BERRY MORROW ADC #143825, Plaintiff,
v.
MARVIN HUGHEY, et al., Defendants.

RECOMMENDED DISPOSITION

BETH DEERE, Magistrate Judge.

I. Procedures for Filing Objections:

This Recommended Disposition ("Recommendation") has been sent to Chief United States District Judge Brian Miller. Any party to this suit may file written objections with the Clerk of Court within fourteen (14) days of filing of the Recommendation. Objections must be specific and must include the factual or legal basis for the objection. An objection to a factual finding must identify the finding of fact believed to be wrong and describe the evidence that supports that belief.

By not objecting, parties may jeopardize any right to appeal questions of fact. And, if no objections are filed, Judge Miller can adopt this Recommendation without independently reviewing the record.

II. Background:

Plaintiff Barry Morrow, an Arkansas Department of Correction ("ADC") inmate, filed this lawsuit pro se under 42 U.S.C. ยง 1983, alleging that Defendants violated his first amendment rights by forcing him to submit to a tuberculosis ("TB") test that involved an injection. (Docket entry #2, #21)

Defendants employed by the ADC filed a joint motion for summary judgment, a brief in support, and a statement of undisputed facts. (#89, #90, #91) Marvin Hughey, the only remaining medical defendant, has also filed a motion for summary judgment, a brief in support, and a statement of undisputed facts. (#92, #93, #94)

For reasons set forth below, the Court recommends that both motions for summary judgment (#89, #92) be GRANTED.

III. Discussion:

A. Standard

Summary judgment is appropriate when the record, viewed in a light most favorable to the nonmoving party, demonstrates that there is no genuine dispute as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Anderson v. Liberty Lobby Inc., 477 U.S. 242, 249-50 (1986). The moving party bears the initial burden of demonstrating the absence of a genuine dispute of material fact. Celotex, 477 U.S. at 323. Thereafter, the nonmoving party must present specific facts showing that there is a genuine dispute that must be decided at a trial. See Fed R. Civ. P. 56(c); Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011).

B. First Amendment Claim[1]

According to Mr. Morrow, his religious beliefs dictate that he must not ingest or be injected with any pork (or pork byproducts) or any pharmaceutical, as long as there is an alternative. (#21) Mr. Morrow explains: "I am a Nazarite. Other than that I do not put a Name' on my religion.... I am a cross between Christians, Yahinuhist, Judaism, and Buddism." (#103 at p. 1-2)

Mr. Morrow believes that the TB injection used for inmates at the ADC contains artificial substances as well as pork or pork byproducts. (#21) He requests a less restrictive means of testing. Mr. Morrow alleges that, while he was housed at another ADC unit, an alternative test that did not involve an ...


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