Orlando Matthews Estate et al v. Marianna Arkansas, City of et al

Filing 62

ORDER denying 53 Motion to Lift Stay; denying 53 Motion for Reconsideration. The trial scheduled for October 15, 2013, is cancelled, and the case is administratively terminated. Any party may lift the stay and reopen once the Arkansas courts have made their decision regarding the personal representative of the estate. Signed by Judge D. P. Marshall Jr. on 5/3/13. (kpr)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
EASTERN DIVISION

ESTATE OF ORLANDO MATTHEWS;
FLORENCE MATTHEWS,
individually and in her official capacity
as Administratrix of the estate; and BARRY LARRY

v.

PLAINTIFFS

No. 2:09-cv-71-DPM

CITY OF MARIANNA, ARKANSAS,
a municipal corporation; ROBERT
TAYLOR, Mayor of Marianna; JAMES
TUCKER, Marianna Chief of Police;
WILLIAM COLVIN, Corporal, Marianna
Police Department; SCOTT
MCCALL, Officer, Marianna Police
Department; and JOHN DOES 1-10,
in their individual and official capacities

DEFENDANTS

ORDER
The parties have been going back and forth in the probate division of
Lee County Circuit Court since November 2011. The Marianna Defendants
began the maneuvers by moving for summary judgment in this Court on the
grounds that Matthews was never appointed personal representative of her
son Orlando's estate, so had lacked standing under Arkansas law to bring this
2009 civil-rights lawsuit about the circumstances of her son's death. NQ 28.
A long line of Arkansas cases holds that such a defect in standing cannot be

cured by later appointment. E.g., Dachs v. Hendrix, 2009 Ark. 542, at 9-11, 354
S.W.3d 95, 101 (2009). But Matthews responded by getting an order from the
circuit court's probate division appointing Matthews nunc pro tunc to July

This Court stayed the case while the Marianna Defendants litigated the
validity of that appointment in the probate division, which has jurisdiction
over its orders. Smith v. Rebsamen Medical Center, Inc., 2012 Ark. 441, 2012 WL
5963222. Ultimately the probate division vacated the appointment order. N2

53-1. Matthews did not appeal. N2 53 at 2 & N2 55 at 1. Matthews filed a

motion to reconsider, N2 57, which the probate division denied. N2 59-1.
Matthews has appealed the denial- probably; the copy of the notice of appeal
filed in this Court's record bears no file mark. N2 60-1.
Pending before this Court is the Marianna Defendants' motion to lift the
stay and revisit its denied motion for summary judgment. N2 53. Because the
probate division's order denying reconsideration is probably on appeal,
Defendants suggest keeping the stay in place 100 more days to allow the
Arkansas appellate courts to do their work. Matthews suggests this is too
little time to get a final decision on the validity of Matthews's nunc pro tunc

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appointment. NQ 61.
Matthews's standing to pursue § 1983 claims against the Marianna
Defendants arising from her son's injuries and death is determined by
Arkansas law. 42 U.S.C. § 1988(a); Williams v. Bradshaw, 459 F.3d 846 (8th Cir.
2006). Two claims exist in this kind of case: a survival claim (covering torts,
common law and constitutional, that could have been asserted by Orlando
had he not died) and a wrongful-death claim (covering the losses suffered by
Orlando's statutory beneficiaries because of his death). ARK. CODE ANN.§§
16-62-101 & 16-62-102(£).* See generally Professor Brill's clear discussion of
the two claims, their history, their differences, and the precedent on point.
HOWARD W. BRILL, 1 ARKANSAS PRACTICE SERIES, LAW OF DAMAGES§ 34:1 (5th
ed. & 2011-12 pocket part).
The survival claim must be brought by the personal representative of
Orlando's estate. ARK. CODE ANN.§ 16-62-101(a)(1); Smith v. St. Paul Fire &
Marine Insurance Co., 76 Ark. App. 264,269-70,64 S.W.3d 764,768 (2001). The

·A pendant state-law claim for wrongful death certainly exists.
Whether a federal-law claim exists too is a vexed question that need not be
addressed. Compare 42 U.S.C. § 1983 with ARK. CODE ANN.§ 16-62-102 and
Andrews v. Neer, 253 F.3d 1052, 1063-64 (8th Cir. 2001).
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wrongful-death claim must be brought by the personal representative too, or
by all Orlando's heirs at law if no personal representative has been appointed.
ARK. CODE ANN. § 16-62-102(b); Ramirez v. White County Circuit Court, 343
Ark. 372, 381, 38 S.W.3d 298, 303 (2001).
During a 2006 arrest, Marianna police officers shot Orlando. The young
man died a few days later. The relevant statutes of limitation have run.**
This case was brought by Orlando's mother as personal representative of his
estate, and by her individually and "Barry Larry," the two of whom the
complaint describes as "all [Orlando's] known lawful heirs." NQ 1 at 1. The
record reveals, though, that Orlando had other heirs at law who did not join
the suit as Plaintiffs. Ng 30-1 at 3.
This case stands or falls, then, on whether Mrs. Matthews was the
personal representative when she filed it. If so, all claims need a trial on the
merits. If not, any survival claim lapsed. If not, any wrongful death claim
also lapsed because not all Orlando's heirs joined as plaintiffs. And a later

··Battery has a one-year statute. ARK. CODE ANN.§ 16-56-104. All§
1983 claims accruing in Arkansas have a three-year statute. Ketchum v. City
ofWest Memphis, Ark., 974 F.2d 81, 82 (8th Cir. 1992). Wrongful-death
claims must also be brought within three years. ARK. CODE ANN.§ 16-62102(c).

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complaint naming all the heirs does not relate back to cure the standing
problem. Brewer v. Poole, 362 Ark. 1, 14-15, 207 S.W.3d 458, 466 (2005).
Special Circuit Judge Lineberger's opinion on the nunc pro tunc issue is
careful and cogent. But Matthews's appeal puts the issue back in doubt.
There is a further complication: Matthews may or may not have perfected her
appeal. Compare Helena Regional Medical Center v. Wilson, 362 Ark. 117, 207
S.W.3d 541 (2005), with In re Stinnett, 2011 Ark. 278, 383 S.W.3d 357.
Matthews is correct on the time involved in the appeal; a final decision is
unlikely for many months- sometime during the winter of 2013-2014 seems
probable.
Considering all the circumstances, the Court denies the Marianna
Defendants' motion, NQ 53, to lift the stay. The trial tentatively scheduled for
15 October 2013 is cancelled. The Court directs the Clerk to administratively
terminate this case. Any party may move to lift the stay and reopen once
there is a final decision from the Arkansas courts on whether Matthews was
the personal representative of her son's estate when she filed this lawsuit.
The Court will then lift the stay and either set a very prompt trial date or enter
judgment for the Defendants.

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So Ordered.
i

..

D.P. MarsHall Jr. '
United States District Judge

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