Flaherty v. Cox et al

Filing 46

ORDER directing the Clerk to prepare a trial subpoena for Mr. Witherspoon to testify at the August 20, 2013 Evidentiary Hearing/Trial. Mr. Witherspoon's sealed private address must be REDACTED from the return of service or any other public portion of the record. Signed by Magistrate Judge J. Thomas Ray on 07/18/2013. (Attachments: # 1 Exhibit)(kcs)

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

THOMAS STEVEN FLAHERTY,
ADC #115819
V.

PLAINTIFF

2:12CV00103 BSM/JTR

AVERY G. COX, Corporal,
East Arkansas Regional Unit, ADC

DEFENDANT

ORDER
Plaintiff, Thomas Steven Flaherty, has filed this pro se § 1983 action alleging
that Defendant Cox used excessive force against him on February 21, 2012. An
Evidentiary Hearing/Trial on the merits of that claim is scheduled for August 20,
2013.
Plaintiff has filed a Witness List stating that he would like to call Corporal
Auther B. Witherspoon, who allegedly witnessed the February 21, 2012 incident.
See Docs. #40 and #43. Defendants have informed the Court that Mr Witherspoon has
retired from the ADC, and they have provided his last known mailing address. See
Sealed Exhibit to this Order. The Court will direct the Clerk to issue a trial subpoena
for Mr. Witherspoon at that sealed address.
Plaintiff also has listed Nurse Jacqueline Rhodes Carswell as a potential
witness. See Doc. #40. According to Plaintiff, Ms. Carswell "prescribed foot wear

cause of my feet damage from the assault." Id.
In his Complaint and Amended Complaint, Plaintiff alleges that Defendant Cox
injured his left hand when he hit it several times with a bar key. See Docs. #2 and #6.
Plaintiff does not allege that Defendant Cox caused any injuries to his feet.
Instead, Plaintiff alleged that former Defendant Washington subjected him to
cruel and unusual punishment when he seized Plaintiff's prescriptive footwear while
he was on behavior control for three days following Plaintiff's altercation with
Defendant Cox. Id. The Court has already dismissed that claim and Defendant
Washington from this case. See Docs. #9 and #13. Because it does not appear that
Plaintiff is alleging that Defendant Cox (who is the only remaining Defendant) caused
any injuries to his feet, there is no need to call Nurse Carswell as a witness. Thus, the
Court will not issue a trial subpoena for her at this time.
However, if Plaintiff believes that Nurse Carswell, or any other individuals,
have relevant testimony about Defendant Cox's February 21, 2012 use of force or the
injuries Defendant Cox allegedly caused during that incident, Plaintiff should file,
before the July 31, 2013 deadline (see Scheduling Order, Doc. 39 at ¶ 4), a revised
Witness List that: (1) provides the names and addresses of any additional witnesses
he would like to call at the August 20, 2013 hearing; and (2) explains the testimony
each additional witness is likely to provide.
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In his Exhibit List, Plaintiff states that he would like to introduce into evidence
a video recording of the February 21, 2012 incident. See Doc. #41. Defense counsel
has informed the Court that: (1) it has a copy of that recording; (2) Plaintiff has
previously reviewed that recording; and (3) they will bring the recording to the August
20, 2013 Evidentiary Hearing/Trial. Defendants must provide a copy of that recording
to the Court on or before August 13, 2013 deadline. See Scheduling Order, Doc. 39
at ¶ 4.
IT IS THEREFORE ORDERED THAT the Clerk is directed to prepare a trial
subpoena for Mr. Witherspoon to testify at the August 20, 2013 Evidentiary
Hearing/Trial. Mr. Witherspoon's sealed private address must be REDACTED from
the return of service or any other public portion of the record.
Dated this 18th day of July, 2012.

UNITED STATES MAGISTRATE JUDGE

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