Billy Adams v. Ray Hobbs , 402 F. App'x 157 ( 2010 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 10-2138
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Billy Tirrell Adams, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the Eastern
* District of Arkansas.
Ray Hobbs, Chief Deputy Director, *
Arkansas Department of Corrections; * [UNPUBLISHED]
John Byus, Medical Administrator, *
Arkansas Department of Corrections; *
Wendy Kelley, Deputy Director of *
Treatment, Arkansas Department of *
Corrections; Richard Clark, Dr., East *
Arkansas Regional Unit, ADC; *
Charlotte Green, Infirmary Manager, *
East Arkansas Regional Unit, ADC; *
Greg Harmon, Warden, East Arkansas *
Regional Unit, ADC, *
*
Appellees. *
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Submitted: November 19, 2010
Filed: November 29, 2010
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Before BYE, BOWMAN, and COLLOTON, Circuit Judges.
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PER CURIAM.
Inmate Billy Tirrell Adams appeals the district court’s1 adverse grant of
summary judgment in his 42 U.S.C. § 1983 action. We conclude that the claims
against the Arkansas Department of Correction defendants were properly dismissed
for failure to exhaust administrative remedies, see King v. Iowa Dep’t of Corr., 598
F.3d 1051, 1052 (8th Cir.) (de novo standard of review), cert. denied, 79 U.S.L.W.
3226 (U.S. Oct. 12, 2010), but we modify the dismissal of those claims to be without
prejudice, see Calico Trailer Mfg. Co. v. Ins. Co. of N. Am., 155 F.3d 976, 978 (8th
Cir. 1998). As to the remaining claims against Charlotte Green and Dr. Richard Clark,
we agree with the district court that Adams failed to create trialworthy issues. See
Davis v. Oregon County, Mo., 607 F.3d 543, 548 (8th Cir. 2010) (summary judgment
standard of review); see also Williams v. Jackson, 600 F.3d 1007, 1014 (8th Cir.
2010) (deliberate indifference claim requires showing more than even gross
negligence); Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993) (per curiam)
(failure to process grievances, without more, is not actionable under § 1983). To the
extent Adams is arguing that summary judgment was premature and that the record
established deliberate indifference by Dr. Joseph Hughes, Adams did not seek a
continuance under Federal Rule of Civil Procedure 56(f) by filing an affidavit
showing what facts further discovery might uncover, see Ballard v. Heineman, 548
F.3d 1132, 1136-37 (8th Cir. 2008), and he also did not seek leave to add Dr. Hughes
as a defendant. Accordingly, we affirm. We also deny Adams’s pending motion for
appointment of counsel.
______________________________
1
The Honorable Jerome T. Kearney, United States Magistrate Judge for the
Eastern District of Arkansas, to whom the case was referred for final disposition by
consent of the parties pursuant to 28 U.S.C. § 636(c).
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