Townsend v. Singleton et al

Filing 72

ORDER denying as moot 53 Motion for Sanctions; denying 56 Motion for Sanctions; granting 58 Motion to Supplement Complaint. Signed by Honorable Barry A. Bryant on March 19, 2015. (mll)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
TEXARKANA DIVISION

JACOB JAMES TOWNSEND
v.

PLAINTIFF
Civil No. 4:12-cv-04072

OFFICER PIERRE SUMMERVILLE;
OFFICER SIMEON AIMES;
and LT. KEVIN MELLSON

DEFENDANTS

ORDER
Plaintiff Jacob Townsend proceeds pro se and in forma pauperis in this 42 U.S.C. § 1983
action. Currently before the Court are Plaintiff’s (1) Motion to Supplement Amended Complaint
(ECF No. 58); (2) Motion For Sanctions (ECF No. 53); and (3) Amended Motion for Sanctions
(ECF No. 56).
1.

Motion to Supplement Amended Complaint (ECF No. 58)
Rule 15 of the Federal Rules of Civil Procedure governs amended pleadings. Rule 15(a)

provides in pertinent part:
(1) Amending as a Matter of Course. A party may amend its pleading once as a
matter of course within: (A) 21 days after serving it, or (B) if the pleading is one
to which a responsive pleading is required, 21 days after service of a responsive
pleading or 21 days after service of a motion under Rule 12(b), (e), or (f),
whichever is earlier.
(2) Other Amendments. In all other cases, a party may amend its pleading only
with the opposing party's written consent or the court's leave. The court should
freely give leave when justice so requires.
Fed. R. Civ. P. 15(a).
Although leave to amend is to be freely granted under Rule 15(a), the Court has discretion
whether or not to grant leave to amend. Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S.
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321, 330–32 (1971). Factors to consider in determining whether leave to amend should be granted
include but are not limited to: (1) whether the motion was filed in bad faith or with dilatory
motive; (2) whether the motion was filed with undue delay; (3) whether leave to amend would be
unduly prejudicial to the opposing parties; and (4) whether the proposed amendment would be
futile. See Bell v. Allstate Life Ins. Co., 160 F.3d 452, 454 (8th Cir. 1998) (citing Foman v. Davis,
371 U.S. 178, 182 (1962)); Williams v. Little Rock Mun. Water Works, 21 F.3d 218, 224 (8th Cir.
1994).
In his Motion to Amend his Amended Complaint (ECF No. 58), Plaintiff again seeks to
amend his requested relief. In this Motion, Plaintiff specifically lists the amount of compensatory
and punitive damages he seeks from each Defendant. Defendants did not respond to this Motion
to Amend.
The Court finds Plaintiff’s Motion to Amend was not filed in bad faith, with dilatory
motive, or with undue delay. Further, there is no indication that Defendants will be prejudice by
allowing Plaintiff to clarify the relief he seeks. Lastly, the amendment is not futile.
Accordingly, Plaintiff’s Motion to Supplement Amended Complaint (ECF No. 58) is
GRANTED. The Clerk is DIRECTED to file Plaintiff’s Motion to Supplement (ECF No. 58)
as a supplement to Plaintiff’s Amended Complaint.
2.

Motions for Sanctions (ECF No. 53, 56)
First, I find Plaintiff's Amended Motion for Sanctions (ECF No. 56) moots Plaintiff's initial

Motion for Sanctions (ECF No. 53). Therefore, Plaintiff's initial Motion for Sanctions (ECF No.
53) is DENIED as moot.
In Plaintiff's Amended Motion for Sanctions (ECF No. 56), he claims there was video

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footage of the alleged excessive force used against him by Defendants. Plaintiff further claims this
video footage was intentionally destroyed. Plaintiff seeks relief in the form of an "adverse
inference" and preclusion of testimony or other evidence regarding the subject matter of the video
footage at issue.
Defendants responded arguing that the video footage, if it ever existed, was not destroyed
intentionally, but instead, recorded over seven days after the incident as is the normal course at the
Hempstead County Detention Center ("HCDC"). Further, Defendants argue that Plaintiff's Motion
is moot because there will be no jury at the upcoming trial, thus, Plaintiff cannot receive an
adverse inference jury instruction. ECF No. 57.
I agree that Plaintiff's requested relief is moot. This case is set for bench trial on April 7,
2015. In a bench trial I am the fact finder and will hear all of the evidence presented and then
issue a ruling.1 There will be no jury present as no party here properly demanded a jury trial.
Therefore, it is impossible and unnecessary to issue an adverse inference instruction as there will
be no jury present to receive it. Further, I will hear testimony relating to the subject matter of the
video footage if any is offered. I am well versed in the Federal Rules of Civil Procedure and
Evidence and will consider or disregard all testimony and evidence presented at the trial in
accordance with such Rules. See Williams v. Illinois, __ U.S. __, 132 S.Ct. 2221, 2235 (2012)
("[i]n bench trials, judges routinely hear inadmissible evidence that they are presumed to ignore
when making decisions . . . [and] there is a well-established presumption that the judge [has]
adhered to basic rules of procedure when the judge is acting as a factfinder.") (internal quotations

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My ruling may be issued from the bench at the close of testimony or in a written opinion
at a later date.
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omitted).
However, as the finder of fact during the upcoming bench trial, I am also tasked with
making any witness credibility determinations that are necessary. See Wright v. St. Vincent health
System, 730 F.3d 732, 739 (8th Cir. 2013) ("a district court's credibility determinations in a bench
trial, like a jury's credibility determinations in a jury trial, are virtually unassailable on appeal.")
(internal quotations omitted). Given Plaintiff's allegations regarding the spoilation of the video
footage, I find testimony from a HCDC official or employee familiar with the particular video
footage at issue and with the video system and recording policies of the HCDC as relevant and
necessary.
Accordingly, Plaintiff's Amended Motion for Sanctions (ECF No. 56) is DENIED.
Further, Defendants are DIRECTED to produce for testimony, at the bench trial on April
7, 2015, such a person or persons familiar with any video footage recorded on September 8,
2011 involving Plaintiff, and such person or persons familiar with the recording and
maintaining of video footage at the HCDC in 2011.
IT IS SO ORDERED this 19th day of March 2015.

/s/ Barry A. Bryant
HON. BARRY A. BRYANT
UNITED STATES MAGISTRATE JUDGE

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