Wheeler v. Andrews

          PROPOSED FINDINGS AND RECOMMENDATIONS

          JEROME T. KEARNEY, UNITED STATES MAGISTRATE JUDGE.

         INSTRUCTIONS

         The following recommended disposition has been sent to United States District Judge D. P. Marshall Jr. 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 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 before the District Judge (if such a hearing is granted) was not offered at the hearing before the Magistrate Judge.

3. The detail of any testimony desired to be introduced at the hearing before the District Judge 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 hearing before the District Judge.

         From this submission, the District Judge will determine the necessity for an additional evidentiary hearing, either before the Magistrate Judge or before the District Judge.

         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 Billy Wheeler is a state inmate incarcerated at the East Arkansas Regional Unit of the Arkansas Department of Correction (ADC). He filed this action pursuant to 42 U.S.C. § 1983, alleging Defendants improperly classified him into a job which conflicted with his medical restrictions. (Doc. No. 5) Defendants Andrews, Minor, Deen and Harper were dismissed on October 19, 2018 (Doc. No. 14).

         Pending before the Court are the Motion for Summary Judgment, Brief in Support, and Statement of Facts, filed by remaining Defendants Valerie Westbrook and Douglas Swiney (Doc. Nos. 18-20). When Plaintiff failed to respond, this Court issued an Order on January 3, 2019, directing him to respond within fifteen days of the date of the Order (Doc. No. 21). The Court further advised Plaintiff that failure to comply with the Order would result in all of the facts set forth in Defendants' summary judgment papers being deemed ...