Dansby v. Norris

Filing 105

ORDER denying as premature 69 Motion for Summary Judgment. Signed by Honorable Harry F. Barnes on August 31, 2009. (cap)

IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS TEXARKANA DIVISION JOE LOUIS DANSBY V. Civil No. 02-4141 RESPONDENT PETITIONER

LARRY NORRIS, Director of Arkansas Department of Corrections ORDER

Currently before the Court is Respondent's Motion for Summary Judgment. (Doc. 69). Respondent filed this Motion on October 21,

2008 requesting Summary Judgement be granted, denying Petitioner's claim he was mentally retarded and ineligible for capital punishment pursuant to Atkins v. Virginia, 536 U.S. 304 (2002). The basis for

Respondent's Motion was that the record was undeveloped on the point of Petitioner's mental retardation claim, and the record did not support such a claim. (Doc. 70). Since the time of Respondent's

Motion for Summary Judgment, this Court has permitted a cell-side or in-cell evaluation of Petitioner by his psychiatrist, for the purpose of assessing Petitioner's current mental competency. 100). (Docs. 97,

Currently, the Petitioner has a motion pending to allow

additional cell-side evaluation, as Petitioner appears not to be communicating with his counsel or psychiatrist and has not been since January of 2007. (See Doc. 85, p. 8).

Previously, Petitioner moved to Hold Proceedings in Abeyance until Petitioner is Determined Competent to Assist Counsel. (Doc. 85). The Court denied holding the proceedings in abeyance and has

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moved forward with cell-side evaluations of Petitioner, as noted above. Although holding the case in abeyance was not proper, the

Respondent's Motion for Summary Judgment is premature at this time. Respondent complains of the lack of development of Petitioner's mental retardation developed through claim, the however the claim of is the currently Mental being Health

cell-side

visit

Professional chosen by Petitioner's counsel. Respondent also has the opportunity Petitioner. to request a cell-side mental health evaluation of

Regardless of the outcome of these visits, Respondent

will almost certainly have to, at the least, amend his Motion for Summary Judgment as the results of these evaluations become clear. Accordingly, Respondent's Motion for Summary Judgment (Doc. 69) is DENIED as premature. This Order shall in no way restrict

Respondent to the refiling of such a Motion as appropriate.

IT IS SO ORDERED this 31st day of August, 2009.

/s/ Harry F. Barnes Harry F. Barnes United States District Judge

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