Flemons v. Devane et al
Filing
99
OPINION AND ORDER denying 98 Motion to Reopen Case and appoint counsel. Signed by Honorable P. K. Holmes III on February 21, 2023. (mjm)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
AARON FLEMONS
v.
PLAINTIFF
No. 2:16-cv-2037
JOHN DEVANE et al.
DEFENDANTS
OPINION AND ORDER
Before the Court is plaintiff Aaron Flemons’s second motion to reopen case and appoint
counsel (Doc. 98). For the reasons given below, this motion will be denied.
The parties reached a settlement of all remaining claims during a settlement conference
before Chief United States Magistrate Judge Mark E. Ford on April 12, 2022. Mr. Flemons, who
is an incarcerated civil rights claimant, was present at that settlement conference and was
represented there by court-appointed counsel. After a two-and-a-half-month delay, the parties
filed a joint stipulation of dismissal pursuant to their settlement agreement. See Doc. 94. Five
months later, on December 8, 2022, Mr. Flemons filed a motion (Doc. 96) pro se, requesting that
this case be reopened and that new counsel be appointed for him. He alleged that he never signed
the written settlement agreement, and that his attorney nevertheless stipulated to dismissal of his
claims without his permission. The Court denied that motion because it provided “no basis for
concluding that the joint stipulation of dismissal filed in this case was anything other than the
consequence of Mr. Flemons’s deliberate choice to settle which he made with advice from counsel
during the April 12 settlement conference.” See Doc. 97, p. 3 (internal quotation marks omitted).
In particular, the Court noted that Mr. Flemons’s motion did not allege that payment under the
settlement agreement had not been completed or that the terms of the written agreement he had
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been presented with after the settlement conference differed in any material way from the
settlement that had previously been reached during that conference.
Now Mr. Flemons has filed a second motion to reopen the case and appoint new counsel,
elaborating upon the allegations and arguments made in his prior motion. Most importantly, Mr.
Flemons now alleges that “[t]o date I’ve still not received any payment.” See Doc. 98, ¶ 4.
However, Mr. Flemons also attached correspondence from his attorneys that clearly shows the
settling defendants provided Mr. Flemons’s court-appointed counsel with the payment due to him
under the terms of the settlement agreement. That correspondence also shows that the only reason
Mr. Flemons had not yet received this payment was because he was failing to communicate with
his attorneys, refusing to provide his attorneys with written instructions on where to send the check,
and refusing to return a signed copy of the written agreement to his attorneys. See generally Docs.
98-1, 98-2. The post-settlement breakdown in communication between Mr. Flemons and his
attorneys does not implicate the validity of the settlement agreement that the parties reached during
the April 12 settlement conference, nor does it call into question the defendants’ compliance with
the terms of that agreement.
IT IS THEREFORE ORDERED that plaintiff Aaron Flemons’s second motion to reopen
case and appoint counsel (Doc. 98) is DENIED.
IT IS SO ORDERED this 21st day of February, 2023.
/s/P. K. Holmes, III
P.K. HOLMES, III
U.S. DISTRICT JUDGE
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