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Henderson v. Gibson

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

May 9, 2018

MARK HENDERSON ADC #78763 PLAINTIFF
v.
JAMES GIBSON, Warden, Varner Unit; 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 Kristine G. Baker. 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 the District Judge, you must, at the same time that you file your written objections, include the following:

1. Why the record made before the Magistrate Judge is inadequate.
2. Why the evidence proffered at the 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

         Mark Henderson (“Plaintiff”), an inmate at the Varner Unit of the Arkansas Department of Correction (“ADC”), filed this action pro se pursuant to 42 U.S.C. § 1983. (Doc. Nos. 2, 12.) He alleges Defendants James Shipman and Jared Byers, Wardens at the Varner Unit, subjected him to excessive force and denied him adequate medical care.[1] (Doc. No. 12 at 3-10.) Defendants Shipman and Byers have now filed a Motion for Summary Judgment, contending Plaintiff failed to exhaust his administrative remedies before filing this action. (Doc. Nos. 41-43.) Plaintiff has responded (Doc. Nos. 48-49), and this matter is now ripe for a decision. After careful review, and for the following reasons, I find the Motion for Summary Judgment should be GRANTED and Plaintiff's cause of action DISMISSED.

         II. SUMMARY JUDGMENT STANDARD

         Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment is proper “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A party asserting that a fact cannot be or is genuinely disputed must support the assertion by citing to particular parts of materials in the record, “including depositions, documents, electronically stored information, affidavits or declarations, stipulations ...


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