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Dewberry v. Ford

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

March 2, 2016

COREY DEWBERRY, ADC #103900 PLAINTIFF
v.
RODNEY FORD, Captain, East Arkansas Regional Unit, . DEFENDANTS

ORDER

KRISTINE G. BAKER, UNITED STATES DISTRICT JUDGE

This Court has reviewed the Recommended Partial Disposition submitted by United States Magistrate Judge J. Thomas Ray (Dkt. No. 37). Plaintiff Corey Dewberry filed a motion for extension of time to file objections to Judge Ray’s Recommended Partial Disposition (Dkt. No. 40). The Court grants the motion for extension of time and considers as timely filed Mr. Dewberry’s objections (Dkt. Nos. 40, 42). After carefully considering these documents and making a de novo review of the record in this case, the Court approves of and adopts in its entirety the Recommended Partial Disposition.

I. Background

Mr. Dewberry is a prisoner in the East Arkansas Regional Unit (“EARU”) of the Arkansas Department of Corrections (“ADC”). He filed a pro se action under 42 U.S.C. § 1983 alleging that: (1) on December 18, 2013, defendants Captain Rodney Ford, Lieutenant John Munn, Sergeant Frank Scott, Sergeant Yolaunda Williams, Sergeant Carshun Westbrook, and Warden Danny Burl failed to protect him from being attacked by two prisoners, and (2) defendant Officer Ricky Thorne issued a false disciplinary to retaliate against him for filing grievances concerning the December 18, 2013, attack (Dkt. Nos. 2, 5).

The defendants filed a motion for partial summary judgment, and Mr. Dewberry filed a response (Dkt. Nos. 27, 34). The undisputed facts show that in December 2013, Mr. Dewberry was living in barrack 8 at the EARU, along with Frank Askew, Mr. Askew’s nephew, and numerous other prisoners. On December 9, 2013, Mr. Dewberry and Mr. Askew had a verbal argument. As a result, Mr. Dewberry was moved to barrack 3. On December 17, 2013, Mr. Dewberry was moved back into barrack 8, where Mr. Askew and his nephew were still living. On December 18, 2013, Mr. Askew and his nephew attacked Mr. Dewberry, beat him with a cane, and stabbed him with a shank.

After the attack, Mr. Dewberry submitted three different grievance forms-EAM 14-39, EAM 14-98, and EAM 14-113. In grievance 14-39, Mr. Dewberry named defendants Lt. Munn, Capt. Ford, Sgt. Williams, and Sgt. Scott. Mr. Dewberry stated that Sgt. Williams and Sgt. Scott escorted him from barrack 3 to barrack 8. He alleged that one of his attackers made a reference to “Daddy Burl, ” but Mr. Dewberry did not otherwise mention Warden Burl in grievance 14-39 (Dkt. No. 27, Ex. 3, Grievances, at 1). In that same grievance, Mr. Dewberry alleged that one of the attackers told him “this looks like some of Westbrook’s mess, ” referring to Sgt. Westbrook (Id.). Mr. Dewberry did not discuss Sgt. Westbrook any further in grievance 14-39.

After Warden Burl denied grievance 14-39, Mr. Dewberry filed an appeal stating that “Warden Burl is holding me responsible for Lt. Munn and Capt. Ford’s non-execution of duties” (Id.). Warden Burl did not discuss Sgt. Williams or Sgt. Scott when he declined to take action on Mr. Dewberry’s grievance. Mr. Dewberry appealed Warden Burl’s decision. In his appeal statement, Mr. Dewberry stated, “Lt. Munn and Capt. Ford allowed events to transpire that resulted in the stabbing” (Id., at 2). He did not mention any other defendants in his appeal statement. The Arkansas Department of Correction (“ADC”) Deputy who reviewed Mr. Dewberry’s appeal determined:

Your complaint is on 12/17/2014, Staff knowingly moved you back into a barrack with an inmate whom you had been moved away from due to a previous verbal altercation. You claim staff failed to protect you.
After reviewing your appeal and all supporting documentation, I find documentation indicate you were moved from 8 barracks to 3 barracks on 12/9/2013, due to a verbal altercation with inmates in 8 barracks; records also indicate you were moved back to 8 barracks on 12/17/2013 with the same inmates and on 12/18/2013 you were involved in a physical altercation with some of the same inmates you were involved in the verbal altercation with. Captain Ford states you were assigned to barrack 8 per Classification. Due to the evidence submitted in your appeal, I find your appeal with merit.
Appeal upheld.
By way of this response, I will instruct the unit Warden to take Corrective Action against staff and forward a copy to my office.

(Id., at 3). After the appeal of grievance 14-39, Mr. Dewberry filed grievances 14-98 and 14-113 (Id.). Warden Burl denied those grievances as duplicates of 14-39. Mr. Dewberry appealed Warden Burl’s decision, which was affirmed by the ADC Deputy.

II. Analysis

A. Official ...


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