Covington v. White et al

Filing 70

ORDER granting in part and denying in part 50 Motion for Partial Summary Judgment. The Court dismisses the claims against Acosta without prejudice. Covington's motion for summary judgment is denied without prejudice as to Wallace and Hall and granted as to Byrd. Signed by Judge D. P. Marshall Jr. on 3/20/2014. (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, individually and in his
official capacity; NEAL BYRD, in his official
capacity; DALE A COSTA, individually and
in his official capacity; and HERMAN HALL,
individually and in his official capacity

DEFENDANTS

ORDER
Covington was arrested on 20 October 2011 and was held in the Phillips
County Jail about five weeks before he was brought before a judge. NQ 52-1

at 4, NQ 66, & NQ 66-2. These facts are undisputed. Covington contends that
he was denied his constitutional right to a prompt first appearance, and
moves for partial summary judgment on the issue of liability. Neal Byrd, the
new Phillips County Sheriff, does not oppose the motion. NQ 57. Wallace and
Hall, Helena police chief and one of the city's officers, don't dispute that
Covington was denied a prompt first appearance. They argue instead that
they are entitled to qualified immunity because Phillips County, not the City
of Helena, denied Covington his constitutional rights.

At the outset, the Court notes that Dale Acosta, another Helena police
officer, hasn't been properly served. The 120-day window to do so has closed.
The Court therefore dismisses the claims against Acosta without prejudice.
FED. R. CIV. P. 4(m).

Covington's constitutional rights were violated when he was held in the
Phillips County Jail for thirty-nine days without an initial appearance before
a judicial officer. Hayes v. Faulkner County, Arkansas, 388 F.3d 669, 673-75 (8th
Cir. 2004); Clay v. State, 318 Ark. 122,134,883 S.W.2d 822,828 (1994); see also
ARK. R. CRIM. P. 8.1 (requiring an initial appearance without unnecessary
delay). But genuine issues of material fact exist about who was responsible
for Covington's lengthy detention. Were county officials or city officials, or
both, responsible for bringing Covington before a judge for his first
appearance? And was Chief Wallace or Officer Hall aware of Covington's
prolonged detention? Viewing the evidence in the light most favorable to
Wallace and Hall, Covington hasn't shown that either of them were directly
involved in holding him in jail for so long. Tilson v. Forrest City Police

Department, 28 F.3d 802, 808 (8th Cir. 1994).
Wallace and Hall are right that the party who held the keys is
responsible for violating Covington's constitutional rights. Hayes, 388 F .3d at
-2-

675. But the current record is unclear as to who held those keys. Wallace and
Hall's knowledge about Covington's circumstances is also unclear at this
point. And the cases seem to leave open the possibility that an official's lack
of knowledge about the violation is a factor to be considered in determining
liability. Hayes v. Faulkner County, Arkansas, 285 F. Supp. 2d 1132,1141 (E.D.
Ark. 2003), affd, 388 F.3d at 676. Covington's motion for summary judgment
is therefore denied without prejudice as to Wallace and Hall. The qualifiedimmunity issue also needs to hang fire until the record is more complete.
Whether Wallace or Hall is entitled to this defense may turn, in part, on what
each one knew and when he knew it.
Sheriff Byrd acknowledges that Covington didn't receive a timely first
appearance and says that "as the operators of the facility in which
[Covington] was housed, [Phillips County] would have partial responsibility
for this event." NQ 57 at 3 n.l. He's right. The Court therefore grants
Covington's motion as to Byrd. How this partial liability finding will affect
the proposed-class issue is for a later day.

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***
Covington's motion for partial summary judgment, NQ 50, is granted in
part and denied in part without prejudice.
So Ordered.

D.P. Marshall Jr.
United States District Judge

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