Edwards v. Byrd et al

Filing 22

ORDER granting 14 Motion to Intervene, which the Court construes as Plaintiff's Motion for Leave to File a Third Substituted Complaint. The Third Amended Complaint must be filed by pltfs within 14 days of the entry of this Order. The Clerk is directed to send pltf's counsel an application to proceed ifp, along with a prisoner calculation sheet. Plaintiffs Burton, Manning, Smith, Merrick, and Perry must, within 30 days of the entry of this Order, either pay the $350 statutory filing fee in full, or file separate applications to proceed ifp, along with separate prisoner calculation sheets, if applicable.. Signed by Magistrate Judge J. Thomas Ray on 6/21/11. (kpr)

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

CECIL EDWARDS, JR.,
ADC #601363
V.

PLAINTIFF
4:10CV02042 BSM/JTR

KARL BYRD,
Sheriff, Faulkner County, et al.

DEFENDANTS

ORDER
I. Introduction
Plaintiff, Cecil Edwards, Jr., has filed a Motion to Intervene seeking the Court’s
permission to add five plaintiffs to this action.1 See docket entry #14. The Court
concludes that the Motion is more properly characterized as a Motion for Leave to
File a Third Substituted Complaint. For the following reasons, the Motion will be
granted.
II. Discussion
On April 8, 2011, Edwards filed a Second Amended/Substituted Complaint
alleging that, while he was a pretrial detainee at the Faulkner County Detention Center
(“FCDC”), Defendants used excessive force, racially discriminated against him, and

1

Edwards was pro se when he commenced this action. He subsequently
retained counsel, who filed a Second Amended/Substituted Complaint on his behalf.

denied him adequate medical care in connection with a riot that occurred on October
24, 2010. See docket entry #13. According to Edwards, Defendants’ actions
constituted a violation of the United States Constitution, the Arkansas Constitution,
and the Arkansas Civil Rights Act. Id.
On April 29, 2011, Allen Merrick, Cleveland Smith, Kelcey Perry, Akemela
Burton, and Darrell Manning filed a Motion seeking the Court’s permission to
intervene in Edwards’ lawsuit.2 See docket entry #14. These five individuals allege
that they were pretrial detainees in the same pod as Edwards, and that they were also
beaten, denied adequate medical care, and racially discriminated against when
Defendants responded to the October 24, 2010 riot. Id.
On May 26, 2011, the Court entered an Initial Scheduling Order directing
Defendants to file a Response to the Motion to Intervene on or before June 8, 2011.
See docket entry #21. Defendants did not do so.
Local Rule 7.2(f) provides that: “The failure to timely respond to any
nondispositive motion . . . shall be an adequate basis, without more, for granting the
relief sought in said motion.” Additionally, the Court concludes that there is good
cause for granting the Motion as the claims are legally related and arise out of the
same nucleus of facts. See Fed. R. Civ. P. 15(a)(2) (providing that permission to

2

These five individuals are also represented by Edwards’attorney.
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amend "shall be freely given when justice so requires").
Finally, the Court must address payment of the $350 filing fee. On January 4,
2011, the Court granted Edwards permission to proceed in forma pauperis and
accessed an initial partial filing fee of $1.17. See docket entry #3; see also 28 U.S.C.
§ 1915(b) (allowing a prisoner, who has been granted permission to proceed in forma
pauperis, to pay the filing fee in monthly installments). However, the Court’s records
demonstrate that none of the $350 filing fee has been paid at this time.
Plaintiffs, collectively, must pay the $350 filing fee. Accordingly, the Court
will give Burton, Manning, Smith, Merrick, and Perry thirty days to either pay the
$350 filing fee in full or file separate Applications to Proceed In Forma Pauperis.
III. Conclusion
IT IS THEREFORE ORDERED THAT:
1.

The Motion to Intervene, which has been construed as Plaintiff’s Motion

for Leave to File a Third Substituted Complaint (docket entry #14), is GRANTED.
2.

Pursuant to Local Rule 5.5(e), Plaintiffs shall file their “Third Substituted

Complaint” within fourteen days of the entry of this Order.3
3.

The Clerk is directed to send Plaintiff’s counsel an Application to

3

The Third Substituted Complaint must state, if applicable, each Plaintiff’s
place of incarceration and institutional number.
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Proceed In Forma Pauperis, along with a prisoner calculation sheet.
4.

Plaintiff’s Burton, Manning, Smith, Merrick, and Perry must, within

thirty days of the entry of this Order, either: (1) pay the $350 filing fee in full; or
(2) file separate Applications to Proceed In Forma Pauperis, along with separate
prisoner calculation sheets, if applicable.
Dated this 21st June, 2011.

UNITED STATES MAGISTRATE JUDGE

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