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Burke v. Kelley

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

February 6, 2017

STANLEY K. BURKE, ADC # 151700 PLAINTIFF
v.
WENDY KELLEY, Director, Arkansas Department of Correction; et al. DEFENDANTS

          PROPOSED FINDINGS AND RECOMMENDATIONS

          JOE J. VOLPE UNITED STATES MAGISTRATE JUDGE

         INSTRUCTIONS

         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:

Clerk, United States District Court Eastern District of Arkansas 600 West Capitol Avenue, Suite A149 Little Rock, AR 72201-3325

         DISPOSITION

         I. INTRODUCTION

         Plaintiff, Stanley K. Burke, is an inmate of the Arkansas Department of Correction (“ADC”). He filed this pro se action pursuant to 42 U.S.C. § 1983, claiming Defendants were deliberately indifferent to his serious medical needs. (Doc. No. 2.) I previously recommended granting Defendants' Motion to Dismiss (Doc. No. 33); however, Plaintiff filed an intervening Amended Complaint raising additional facts. (Doc. No. 39.) Therefore, the matter was referred back to me for all pretrial matters, including a Motion to Dismiss Mr. Burke's Amended Complaint. (Doc. Nos. 41, 43.)

         The Amended Complaint alleges that, on or about May 31, 2016, Mr. Burke suffered a series of documented seizures. (Doc. No. 39 at 1.) Defendants Shipman and Duran placed Plaintiff on a stretcher and transported him to the infirmary. (Id.) While transporting Plaintiff, a security door slammed against his head causing him to experience a detached retina. (Id. at 1-2.) Plaintiff identifies a whole host of individuals that are also culpable because of the “‘tacit authorization' and the known awareness of these violative practices . . .” (Id. at 3.) He also alleges Defendants Hearyman and Rohder were deliberately indifferent to his serious medical needs when they would not order an MRI to diagnose his cervical disc damage because he did not have enough time left in prison to justify it. (Id. at 3-4.)

         Now pending is Defendants Hearyman, Rohder, Hall-Reed, Murray, Shipman, and Duran's Motion to Dismiss. (Doc. No. 41.) Plaintiff has not responded but the matter is ripe for disposition. After careful consideration of the pleadings in this matter, for the following reasons I find Defendants' Motion should be granted. Additionally, after carefully ...


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