United States District Court, E.D. Arkansas, Northern Division
PROPOSED FINDINGS AND RECOMMENDATIONS
JOE J. VOLPE, Magistrate Judge.
The following recommended disposition has been sent to United States District Judge J. Leon Holmes. 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 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:
On May 6, 2015, I recommended granting Defendants' Motion for Summary Judgment (Doc. No. 20) due to Plaintiff's failure to exhaust administrative remedies. (Doc. No. 29.) Plaintiff then filed objections and new evidence which, he asserts, is sufficient to overcome the Motion for Summary Judgment. (Doc. Nos. 40, 43, 44.) Given Plaintiff's new information, this matter has been referred to me to determine: (1) whether the new evidence is sufficient to overcome Defendants' Motion for Summary Judgment (Doc. No. 20); and (2) whether Plaintiff's subsequently filed Amended Complaint (Doc. No. 32) states any viable claims against Defendants Eddie Selvey and Patrick McCowan, both of whom were previously dismissed. (Doc. No. 46.) After review of the evidence, for the following reasons, I now conclude that it would be improper to dismiss this action on the basis of failure to exhaust administrative remedies. I also find that Defendant Gillespie is entitled to qualified immunity and Plaintiff's Amended Complaint (Doc. No. 32) does not state any claims against Defendants Selvey and McCowan upon which relief may be granted.
II. STANDARD FOR SUMMARY JUDGMENT
Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is proper "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex v. Catrett, 477 U.S. 317, 321 (1986). When ruling on a motion for summary judgment, the court must view the evidence in a light most favorable to the nonmoving party. Naucke v. City of Park Hills, 284 F.3d 923, 927 (8th Cir. 2002). The nonmoving party may not rely on allegations or denials, but must demonstrate the existence of specific facts that create a genuine issue for trial. Mann v. Yarnell, 497 F.3d 822, 825 (8th Cir. 2007). The nonmoving party's allegations must be supported by sufficient probative evidence that would permit a finding in his favor on more than mere speculation, conjecture, or fantasy. Id. (citations omitted). A dispute is genuine if the evidence is such that it could cause a reasonable jury to return a verdict for either party; a fact is material if its resolution ...