IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS DELTA DIVISION TOMMY RADFORD ADC #089900 PLAINTIFF

No. 2:23-cv-5-DPM

BARBARA WILLIAMS-JOHNSON, Sergeant, East Arkansas Regional Unit and MORIEON KELLY, Lieutenant, East Arkansas Regional Unit DEFENDANTS

ORDER 1. The Court adopts Magistrate Judge Volpe’s unopposed partial recommendation, Doc. 40. Fed. R. Civ. P. 72(b) (1983 addition to advisory committee notes). The motion to revoke Radford’s in forma pauperis status, Doc. 38, is denied. 2. On de novo review, the Court adopts Magistrate Judge Volpe’s recommendation, Doc. 41, and overrules Radford’s declaration, Doc. 43, which the Court reads as his objections. The Court has also considered his untimely response to the motion for summary judgment, Doc. 42. Radford says he exhausted grievance EAM-22-2368 before he filed his amended complaint. But, as Judge Volpe noted, exhaustion is a prerequisite to filing suit. A court must therefore look at the circumstances when the case was filed. Johnson v. Jones,

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627 (8th Cir. 2003). Radford also argues that grievance EAM-22-2411 was exhausted because he named Williams-Johnson. But he didn’t name her until his appeal of that grievance’s denial, and the grievance was denied as untimely filed. The supplemental motion for summary judgment, Doc. 37, is granted. Radford’s failure to protect and inadequate medical care claims against Williams-Johnson and Kelly are dismissed without prejudice for lack of exhaustion. The motion for partial summary judgment, Doc. 33, is denied as moot. An in forma pauperis appeal from this Order and accompanying Judgment will not be taken in good faith.

(a)(3). So Ordered.

D.P. Marshall Jr. United States District Judge AS Ochhn H0A3