McCall v. Tucker et al

Filing 36

ORDER granting, as specified in this Order 31 Plaintiff's Motion to Compel; granting in part, as specified in this Order 32 Plaintiff's Second Motion to Compel. Signed by Magistrate Judge J. Thomas Ray on 12/02/2014. (kcs)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION
JAMIE SHAWN MCCALL,
ADC #610019
V.

PLAINTIFF
4:14CV00212 SWW/JTR

MATTHEW TUCKER, Patrol Officer,
Conway Police Department, et al.

DEFENDANTS

ORDER
Plaintiff is a prisoner proceeding pro se in this § 1983 action. He has recently
filed two Motions to Compel, which the Court will address separately.
I. Plaintiff's First Motion to Compel
Plaintiff alleges that, on August 9, 2013, Defendants used excessive force
during his arrest and denied him adequate medical care for his injuries. On August
18, 2014, the Court ordered Defendants to preserve, and file under seal, any video
recordings of that incident and any photographs that may have been taken of Plaintiff's
injuries. Doc. 22. The Court also explained that:
If any such video recordings or photographs have been lost, destroyed,
or are no longer available (for any reason), Defendants must notify the
Court within thirty days and provide a detailed explanation of why that
evidence is no longer available and the names of all city employees who
had any involvement in the destruction or loss of that evidence. The
Court will then promptly schedule a hearing to take testimony from the
named city employees concerning how and why the video recordings and
photographs were lost or destroyed.
Id. at 1.

On October 2, 2014, Defendants filed a sealed exhibit containing two
photographs of Plaintiff's injuries, and they provided copies of those photographs to
Plaintiff. Docs. 28 & 33. However, Defendants did not explain whether any video
recordings of the August 9, 2013 incident were made, and if so, what became of those
recordings.
Since that time, Plaintiff has filed a Motion to Compel requesting copies of any
video recordings made of August 9, 2013 incident. Doc. 31. Defendants have filed
a Response explaining that they have provided Plaintiff with the photographs taken
of his injuries. Doc. 33. However, Defendants still have not explained whether any
video recordings of the August 9, 2013 incident were made, and if so, what became
of those records.
Thus, the Motion to Compel is granted. Defendants must, within fourteen
days of the entry of this Order, file a Supplemental Response explaining whether
any video recordings of Plaintiff's August 9, 2013 arrest and use of force were made.
If so, Defendants must file a sealed copy of any such video recordings or explain, as
specified in the August 18, 2014 Order, why those video recordings were not
preserved for trial.

II. Plaintiff's Second Motion to Compel
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On October 20, 2014, Plaintiff filed a Second Motion to Compel asking
Defendants to produce: (1) any audio recordings or transcripts of his parole revocation
hearing that was conducted at the Conway parole office; (2) information about
excessive force and inadequate medical care cases that may have been previously filed
by other individual against the Conway Police Department or the Defendants; and (3)
any supplements written to the original August 9, 2013 incident report. Doc. 32

The items listed in 1 and 2 are irrelevant to the issue in this case i.e., whether
Defendants used excessive force against Plaintiff and/or failed to provide Plaintiff
with adequate medical care for his injuries. In contrast, any supplements that may
have been written to the original August 9, 2013 incident report are highly relevant.
Although they have had the opportunity to do so, Defendants have not filed a
Response explaining why they should not be required to provide copies of any such
supplements to Plaintiff.

See Local Rule 7.2 (f) (providing 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”).
Thus, Plaintiff's Second Motion to Compel is granted, in part. Defendants must,
within fourteen days of the entry of this Order, provide Plaintiff with copies of any
supplements that have been written to the August 9, 2013 incident report.

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III. Conclusion
IT IS THEREFORE ORDERED THAT:
1.

Plaintiff's First Motion to Compel (Doc. 31) is GRANTED, as specified

in this Order.
2.

Plaintiff's Second Motion to Compel (Doc. 32) is GRANTED IN PART,

as specified in this Order.
Dated this 2nd day of December, 2014.

UNITED STATES MAGISTRATE JUDGE

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