Smith v. Johnson et al

Filing 75

ORDER adopting 71 Recommendation and overruling 74 Smith's objections. 61 Motion for Summary Judgment granted. Smith's claims against Johnson will be dismissed with prejudice. The Court asks Smith to review the Arkansas law on persona l service in these circumstances and supplement his motion by 9/15/2017. If Smith's claims against Dobbs proceed to jury trial on the merits or on damages, then that trial will be on Monday, 2/26/2018. The Court will enter a Final Scheduling Order soon. The Court returns this case to Magistrate Judge Harris for further proceedings. Signed by Judge D. P. Marshall Jr. on 8/25/2017. (jak)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION

JAMES EDWARD SMITH
ADC #103093

v.

PLAINTIFF

No. 5:12-cv-409-DPM-PSH

SAMMY D. JOHNSON, CO-I,
Pine Bluff Unit, ADC; and
T. DOBBS, Varner Unit, ADC

DEFENDANTS

ORDER
1. On de nova review, the Court adopts Magistrate Judge Harris's

careful recommendation, NQ 71, and overrules Smith's objections, NQ 74. FED.
R. Crv. P. 72(b)(3). This case is more akin to the Eighth Circuit's surpriseattack precedent than to its targeted-threat precedent. Compare, e.g., Curry v.
Crist, 226 F.3d 974, 978-79 (8th Cir. 2000), with Young v . Selk, 508 F.3d 868,

872-74 (8th Cir. 2007). Johnson is entitled to qualified immunity. His motion
for summary judgment, NQ 61, is granted. Smith's claims against Johnson
will be dismissed with prejudice.
2. Smith moves for default judgment against Dobbs. NQ72. But on the

current record, it's not clear whether Dobbs was properly served. NQ 56-1at2;
FED.

R. Crv. P. 4(e)(l);

ARK.

R. Crv. P. 4(d)(l). The Court asks Smith to review

the Arkansas law on personal service in these circumstances and supplement
his motion. Compare Valley v. Bogard, 342 Ark. 336, 341-42, 28 S.W.3d 269,
271-72 (2000) (abrogated on other grounds-standard of review in bench
trial), and Riggin v. Dierdorff, 302 Ark. 517, 520-21, 790 S.W.2d 897, 899 (1990),

with Connally v. Connally, 95 Ark. App. 42, 47, 233 S.W.3d 168, 171-72 (2006).
Do the facts here amount to refusing service? The Court will need to know
more about the circumstances and substance of the call mentioned in N2 56-1

at 2. Among other things: How did the process server identify the caller?
Did the server make clear the nature of the documents? Was it Dobbs's
house? See generally, NEWBERN &

wATKINS, ARKANSAS CIVIL PRACTICE &

PROCEDURE § 12:6 at 327 (5th ed. 2010).

Supplement and supporting

materials on these points due by 15 September 2017.
3. If Smith's claims against Dobbs proceed to jury trial on the merits or
on damages, then that trial will be on Monday, 26 February 2018. Given the
age of this case, no continuances will be granted absent extraordinary
circumstances. The Court will enter a Final Scheduling Order soon.
4. The Court returns this case to Magistrate Judge Harris for further
proceedings.

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So Ordered.

v

D.P. Marshall Jr.
United States District Judge

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