Evans v. Hardy et al

Filing 140

ORDER: Attached are the Court's 20 March 2014 working drafts of the preliminary instructions, final instructions, and verdict forms. Any proposed changes or objections should be filed by 31 March 2014. Trial is set for 7 April 2014 and is first out. The Clerk is directed to correct the spelling of the names of defendants Brian Bearden and Shirley McDaniels. Evans's 135 Motion for Default Judgment is denied. Gray's 137 Motion for leave to file answer out of time is granted. [1 39] Motion to dismiss court-appointed counsel is denied for lack of cause. Signed by Judge D. P. Marshall Jr. on 3/20/2014. (Attachments: # 1 Attachment 1 Preliminary Instructions, # 2 Attachment 2 Final Jury Instructions, # 3 Attachment 3 Verdict Forms)(jak)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
EASTERN DIVISION
MARCUS D. EVANS
ADC #109369

PLAINTIFF
No. 2:11-cv-235-DPM

v.

SHANTA HARDY, Officer, East Arkansas
Regional Unit, ADC; AVERY COX; BRIAN
BEARDEN; DAVID RICHARDSON;
KENNETH CARLOCK; DERRICK MULLINS;
SHIRLEY MCDANIELS; FARON CLEMMONS;
MOSES JACKSON, III; and JOANN GRAY

DEFENDANTS

ORDER
1. The Court is attaching its 20 March 2014 working drafts of the
preliminary instructions, the final instructions, and the verdict forms. Please
file any proposed changes or objections by 31 March 2014. Trial is set for 7
April2014 and is first out.
2. The Court directs the Clerk to correct the spelling of two defendants'
names. They should be Brian Bearden (not Barden) and Shirley McDaniels
(not Shirely).
3. Evans's motion for a default judgment against Joann Gray, NQ 135, is
denied, and Gray's motion for leave to file an answer out of time, NQ 137, is
granted. Applying the Pioneer factors and the precedent, and considering all

the material circumstances, the Court excuses Gray's neglect in not filing a
timely answer. FED. R. CIV. P. 55(a); Union Pacific Railroad Co. v. Progress Rail

Services Corp., 256 F.3d 781, 782-83 (8th Cir. 2001).
First, default judgments are not favorites of the law. United States ex rel.

Time Equipment Rental & Sales, Inc. v. Harre, 983 F.2d 128,130 (8th Cir. 1993).
Second, Gray's neglect was understandable. She alone was served late
in the case after she had left ADC's employment. Ng 116. She got the suit
papers, and the summons should have been clear to her about her obligation
to respond; but she set the suit papers aside and forgot about them. NQ 138 at
1. There is no evidence of record that Gray had ever been sued before or had

any experience in dealing with lawsuits. She should, of course, have sought
counsel or answered pro se. But the Court understands how a person could
put the suit papers-about an issue from years in the past-aside and not
think anything more about it.
Third, Gray's delay in answering is substantial- approximately eleven
months. So this is not a case of marginal delay. Compare In re Jones Truck

Lines, Inc., 63 F.3d 685, 687 (8th Cir. 1995). On the other hand, there is an
identical delay on Evans's part in seeking the default. The Court was the one
who pointed out to both parties at the pretrial that no answer for Gray was of
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record. In sum, both sides proceeded in the case as if Gray had answered.
Fourth, there is little prejudice to Evans by requiring him to make his
case on the merits against Gray, just as he was expecting to have to do until the
Court noticed the lack of an answer nine days ago. On the other hand, the
prejudice to Gray of not being able to defend on the merits is substantial.
Fifth, a default would introduce needless confusion into an already
tangled case involving five claims against ten defendants. The Court would
be in the difficult position of telling the jury that Gray, as a matter of law,
failed to protect Evans against constitutional violations that are much disputed
and must be decided by the jury. In addition to confusion, the fruit of all this
might well be an inconsistent verdict.
The best course is for Evans's case against Gray to proceed on the
merits- just as everyone was expecting and planning before the recent
pretrial. Gray's answer due by 26 March 2014.
4. Motion to dismiss court-appointed counsel, NQ 139, denied for lack of
cause. The Court directs counsel to provide, as soon as practicable, copies of
whatever requested documents and materials, NQ 139 at 1-2, it is acceptable
under ADC rules for Evans to have in his possession. No transcript of the
March 11th pretrial has been certified. The Court notes that Evans prepared
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and filed his motion on the fourth business day after the pretrial. More
patience would be appreciated. Once trial begins Evans will be in constant
contact with counsel and have access to all papers and evidence. Evans must
depend on his lawyer to do his job between now and then.
So Ordered.
D.P. Marshall (r:
United States District Judge

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