Smith v. Etter

Filing 66

ORDER granting in part and denying in part 62 Plaintiff's Motion for Issuance of Subpoenas. The Arkansas Department of Correction is directed to ensure the appearances of Willis Hendrix, ADC #143598, & Kitaka Lauderdale, ADC #143067, currentl y housed at the Pine Bluff Unit, for trial of this action on 9/15/09, in Jonesboro, Arkansas. A copy of this Order has been forwarded to Ms. Lyn Bennett at the ADC. Plaintiff's proposed witnesses Catherine Rena Smith & Johnny James are disallo wed as their testimony will be either unnecessary or redundant to expected testimony of other witnesses. Counsel for Defendant is directed to ensure the appearance of Jeremy Sparks as Plaintiff's named witness for trial. The Craighead County S heriff is directed to ensure Plaintiff's appearance at the trial on 9/15/09, at 9:30 a.m., in Jonesboro. Plaintiff's request for production of a video tape is DENIED as the Court cannot order the Defendant to produce something that no longer exists. Signed by Magistrate Judge Beth Deere on 9/9/09. (jct)

IN THE UNITED STATES DISTRICT COURT E A S T E R N DISTRICT OF ARKANSAS J O N E S B O R O DIVISION

C O R N E L I U S MARQUEL SMITH V. M I K E ETTER ORDER No. 3:08CV00153 - BD

P L A IN T IF F

DEFENDANT

T h is matter is scheduled for a Bench Trial on Tuesday, September 15, 2009, at 9 :3 0 a.m. in Courtroom 324, United States Courthouse, 615 South Main Street, J o n e s b o ro , Arkansas. Plaintiff Cornelius Marquel Smith is currently incarcerated at the C ra igh e a d County Detention Facility in the custody of the Sheriff. Defendant Mike Etter is a correctional officer at the Craighead County Detention Facility. Defendant is re p re se n te d by JaNan Arnold Davis and Jason E. Owens, Rainwater, Holt & Sexton. The Craighead County Sheriff is directed to ensure Mr. Smith's appearance at trial o n September 15, 2009. In that regard, counsel for Defendant shall provide timely notice o f this Order to the Sheriff. Plaintiff has moved for the issuance of subpoenas for witnesses Johnny James, K ita ka Lauderdale, and Willis Hendrix. (Docket entry #62) He also seeks an order re q u irin g the Defendant to produce a video tape from the date of the incident giving rise to this lawsuit. (#62) Plaintiff's motion (#62) is GRANTED IN PART, and DENIED IN PAR T. In his motion, Plaintiff states that Johnny James, Kitaka Lauderdale, and Willis

Hendrix witnessed the incident at issue in the lawsuit and requests that they be s u b p o e n a e d to attend the trial. These individuals are listed on Plaintiff's witness list that h e filed with the Court (#61). Plaintiff's request for witness appearances is GRANTED IN PART. The Arkansas Department of Correction is hereby directed to ensure the a p p e a ra n c e s of Willis Hendrix, ADC # 143598, and Kitaka Lauderdale, ADC # 143067, c u rre n tly housed at the Pine Bluff Unit of the ADC, as witnesses for trial on Se p te m b e r 15, 2009, in Jonesboro, Arkansas. A copy of this Order has been forwarded to Ms. Lyn Bennett at the ADC. Plaintiff also proposes to call as witnesses at trial

C a th e rin e Rena Smith and Johnny James. These proposed witnesses are disallowed as it a p p e a rs their testimony will be either unnecessary or redundant to expected testimony of o th e r witnesses. Plaintiff also lists Jeremy Sparks, an employee of the Craighead County Detention C e n te r, as a proposed witness. Counsel for Defendant is directed to ensure the a p p e a ra n c e of Mr. Sparks as a witness for trial. With regard to Plaintiff's requests for production of a video tape, Defendant Etter re s p o n d e d to Plaintiff's motion and advised that any such video was lost during a systemw id e crash and cannot be retrieved (#65). Accordingly, Defendant Etter will be unable to p ro vid e the requested material. The Court cannot order the Defendant to produce s o m e th in g that no longer exists. Accordingly, this request is DENIED.

2

IT IS SO ORDERED this 9th day of September, 2009.

______________________________________ U N IT E D STATES MAGISTRATE JUDGE

3