Covington v. White et al

Filing 127

ORDER denying 121 and 122 Motions. The 20 January 2015 trial date for Covington's individual jail-conditions claim remains in place. Any dispositive motion from Wallace, Hall, or Byrd is due by 10 November 2014. Pretrial disclosure sheets, motions in limine, and any other pretrial filings are due by 19 December 2014. The parties should confer and collaborate to file a joint report proposing the form and methods of notice by 7 November 2014. Signed by Judge D. P. Marshall Jr. on 10/28/2014. (jak)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
EASTERN DIVISION
GARY COVINGTON, on behalf of
himself and all others similarly situated

v.

PLAINTIFF

No. 2:12-cv-123-DPM

ULESS WALLACE, HERMAN HALL, and
NEAL BYRD, all in their official capacities

DEFENDANTS

ORDER
1. The 20 January 2015 trial date for Covington's individual jailconditions claim remains in place. Any dispositive motion from Wallace, Hall,
or Byrd is due by 10 November 2014. Pretrial disclosure sheets, motions in
limine, and any other pretrial filings are due by 19 December 2014.
2. Chief Wallace and Officer Hall, standing in for the City of HelenaWest Helena, seek reconsideration of the Court's denial of summary
judgment on the first-appearance claim. The Court has reconsidered- based
on the parties' new briefs and the hearing arguments. And the Court has reread Tilson v. Forrest City Police Department, 28 F.3d 802 (8th Cir. 1994) and

Hayes v. Faulkner County, Arkansas, 388 F.3d 669 (8th Cir. 2004). For the reasons
stated before in NQ 118 and 119, the Court stands by its conclusion that Tilson
is distinguishable because of the factual record Covington has made here.

Like Faulkner County in Hayes, the City Defendants attempt to shift all
responsibility for any delayed first appearances to another. But a reasonable
juror could conclude that the City held the keys too, and that the City's
laxness was so routine that it amounted to a custom or practice of allowing
pre-trial detainees to sit in jail rather than get a prompt first appearance.
Covington has come forward with proof that approximately fifty people in a
three-month period were not brought before a judge within seventy-two
hours of being arrested. Jury questions are presented about the City's
authority and its standard practices.
3. In the alternative, Wallace and Hall asked at the hearing for a stay of
any class proceedings against the City so they can pursue an interlocutory
appeal of class certification. Balancing all material considerations, the Court
denies this oral motion. Hilton v. New Jersey State Prison, 481 U.S. 770, 776
(1987).
The City is not likely to succeed on appeal. If fifty delayed first
appearances in three months don't create a fact question on an
unconstitutional custom or practice, it's difficult to image what circumstances
could. If the district judges' testimony about the City's authority and duty

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through them and all the other involved City employees doesn't create a fact
question on the City holding the keys too, then notwithstanding Hayes the
constitutional obligation can be delegated without recourse. The public
interest favors resolving this case sooner rather than later. The appearance
claim is going forward against the County- whom the Court has already held
liable- in any event. NQ 70. Every potential class member with a claim against
the City has a claim against the County. It will be fairer and more efficient to
proceed with notice, and a short trial to resolve the fact questions about the
City's liability, rather than postponing any further action as to the City
pending an appeal. While participating in notice and the trial will impose
some costs on the City, namely legal fees and expenses, these costs are the
usual consequences of litigation, not irreparable harm. Finally, potential class
members are likely to be harmed by more delay, as memories fade and
making contact with claimants gets more difficult. The balance of equities
favors the plaintiffs.
4. The parties should confer and collaborate and file a joint report
proposing the form and methods of notice. To the extent disagreement exists,
please explain it. Joint report due by 7 November 2014.

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***
Motions, N2 121 & 122, denied.
So Ordered.

D.P. Marshall Jr. {I
United States District Judge

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