Tatum v. Mitchell et al

Filing 175

ORDER: The Court withdraws the reference. Before the Court can rule on qualified immunity, a jury must decide whether Phillips knew that Mitchell posed a substantial risk to Tatum and if so whether Phillips deliberately disregarded that risk when he opened Tatum's cell for Mitchell. The second motion for summary judgment, 170 is denied. This case is first out for trial on 10/11/2016. The Court eliminates responding trial briefs and adds a request for stipulations on background facts. Please submit any stipulation with proposed jury instructions. The Court will hold a one-hour pretrial on 9/20/2016 at 9:00 a.m. Signed by Judge D. P. Marshall Jr. on 8/30/2016. (jak)

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

ANTWAN TATUM

v.

No. 2:13-cv-151-DPM-BD

BRYANT PHILLIPS, Officer, EARU, ADC

DEFENDANT

ORDER
1. The Court withdraws the reference.
2. Before the Court can rule on qualified immunity, a jury must decide

(1) whether Phillips knew that Mitchell posed a substantial risk to Tatum, and
if so, (2) whether Phillips deliberately disregarded that risk when he opened

Tatum's cell for Mitchell. Nelson v. Shuffrnan, 603 F.3d 439, 446 (8th Cir. 2010).
The record still doesn't answer these questions as a matter of law. Compare

NQ 170-6, with NQ 173-2. The Court continues to agree with Magistrate Judge
Ray's analysis earlier in the case: one reasonable inference from the internal
investigation circumstances is that Phillips knew that there was a real risk
Mitchell would end up harming Tatum. NQ 156. A jury must evaluate
Phillips's and Tatum's credibility and draw inferences to discern the truth.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Phillips's second
motion for summary judgment, NQ 170, is therefore denied.

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3. This case is first out for trial on 11 October 2016.

The Court

eliminates responding trial briefs and adds a request for stipulations on
background facts.

Please submit any stipulation with proposed jury

instructions. The Court will hold a one-hour pretrial on 20 September 2016
at9:00 a.m.
So Ordered.

D.P. Marshall J .
United State District Judge

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