Baccam v. Hollenbeck
ORDER denying 37 Motion for Hearing; denying as moot 38 Motion to Take Deposition ; denying 41 Motion for Judicial Disposition; denying 43 Motion to Unseal Document ; denying 44 Motion to Appoint Counsel ; denying 31 Motion to Amend Complaint; and granting 34 Motion for Extension of Time to File Response, as set forth. Signed by Honorable James R. Marschewski on January 9, 2013. (lw)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
PHASUNG LU BACCAM
Civil No. 11-2065
SHERIFF BILL HOLLENBECK;
and DEPUTY MILLER
Currently pending before me for decision are the following motions filed by the Plaintiff:
(1) a motion to amend the complaint (Doc. 31); (2) a motion for an extension of time (Doc. 34);
(3) a motion for an evidentiary hearing (Doc. 37); (4) a motion for judicial disposition (Doc. 41);
(5) a motion to unseal a document (Doc. 43); and (6) a motion for appointment of counsel (Doc.
44). Also pending before the Court is a motion to take the Plaintiff’s deposition filed by the
Defendants (Doc. 38). Each motion will be addressed in turn.
Motion to Amend the Complaint (Doc. 31)
Plaintiff seeks to amend the complaint to add Former Sheriff Frank Atkinson and Former
Jail Administrator Mike Conger as Defendants. The motion (Doc. 31) is denied. This case was
filed on April 6, 2011. Plaintiff has been allowed to amend his complaint to add Deputy Miller
as a Defendant (Doc. 22). The amended complaint was filed on April 19, 2012 (Doc. 26).
Plaintiff has failed to show any good cause to allow this amendment.
Motion for an Extension of Time (Doc. 34)
Plaintiff sought additional time to respond to a motion for judgment on the pleadings
filed by Defendants. The motion for an extension of time (Doc. 34) is granted. The response
(Doc. 35) filed on September 18, 2012, will be considered to have been timely filed.
Motion for an Evidentiary Hearing (Doc. 37)
This motion is entitled a motion for an evidentiary hearing. However, the body of the
motion asks for the production of various documents, photographs, or video footage. The
motion (Doc. 37) is denied. However, Defendants are directed to consider this document as
Plaintiff’s motion for the production of documents. If they have not already done so,
Defendants should produce any responsive documents within thirty days of the date of this order.
Motion for Judicial Disposition (Doc. 41)
In this motion, Plaintiff states the Defendants have failed to provide him with a copy of
video footage that in anyway relates to his claims. The motion (Doc. 41) is denied. Defendants
have stated that there are no known photographs or video of the Plaintiff during his incarceration
at the Sebastian County Detention Center (Doc. 45). The Court cannot make Defendants
produce material that does not exist.
Motion to Unseal a Document (Doc. 43)
Plaintiff asks that a document relating to the determination that probable cause existed
for his arrest in his criminal case to be unsealed pursuant to the Freedom of Information Act. In
response, Defendants indicate they have no knowledge regarding any sealed documents. Further,
if any sealed documents exist, Defendants state they have no authority to unseal them. The
motion (Doc. 43) is denied. The issue of whether there was probable cause to arrest and charge
the Plaintiff has no bearing on the issues in this case.
Motion to Appoint Counsel (Doc. 44)
Plaintiff asks for the appointment of counsel. This is Plaintiff’s second motion
requesting appointment of counsel. In the current motion, Plaintiff has not advanced any new
factors for the Court’s consideration that would cause this Court to grant such a motion. Plaintiff
has filed a variety of motions on his own behalf, has cited to applicable Federal Rules of Civil
Procedure and/or statutes, and has demonstrated a knowledge of the claims he has asserted.
Additionally, the Court notes Plaintiff is no longer incarcerated and therefore is not subject to
any limitations on his ability to pursue his case. The motion for appointment of counsel (Doc.
44) is denied.
Motion to Take Plaintiff’s Deposition (Doc. 38)
Defendants seek leave to depose Plaintiff pursuant to Rule 30(a)(2)(B) of the Federal
Rules of Civil Procedure as Plaintiff is an incarcerated person. The motion (Doc. 38) is denied
as moot. Plaintiff is no longer incarcerated (Doc. 46).
IT IS SO ORDERED this 9th day of January 2013.
/s/ J. Marschewski
HON. JAMES R. MARSCHEWSKI
CHIEF UNITED STATES MAGISTRATE JUDGE
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