Lewis v. Brazell et al

Filing 29

ORDER ADOPTING REPORT AND RECOMMENDATIONS re 27 Report and Recommendations, denying 13 Motion for Summary Judgment; denying 18 Motion for Summary Judgment. Signed by Honorable Susan O. Hickey on September 18, 2013. (mll)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
TEXARKANA DIVISION
DON EARL LEWIS
VS.

PLAINTIFF
CASE NO. 4:12-4100

MARTY BRAZELL and
ERICA CALLWOOD

DEFENDANTS

ORDER
Before the Court is the Report and Recommendation filed on September 5, 2013 by the
Honorable Barry A. Bryant, United States Magistrate Judge for the Western District of Arkansas.
(ECF No. 27). Judge Bryant recommends that the Defendants’ Motions for Summary Judgment
(ECF Nos. 13 & 18) be denied. Separate Defendant Marty Brazell has filed objections to the Report
and Recommendation. (ECF No. 28). After reviewing the record de novo, the Court adopts Judge
Bryant’s Report and Recommendation as its own.
Plaintiff’s Complaint alleges that Defendants violated his constitutional rights by illegally
seizing his deoxyribonucleic (“DNA”) and by failing to return to Plaintiff his original grievance
forms. In light of a very recent Supreme Court opinion1 addressing the Fourth Amendment
implications of seizing an arrestee’s DNA under circumstances similar to this case, Judge Bryant
recommends denial of the motions for summary judgment so that the parties may submit updated
motions that directly address these recent legal developments. Judge Bryant also found that further
briefing was needed to address whether this Court should certify a question to the Arkansas Supreme
Court regarding the construction of Ark. Code Ann. § 12-12-1006–specifically, whether the statute
authorizes the taking of an arrestee’s DNA sixteen days after he has been arrested and booked into
1

Maryland v. King, __ U.S. __, 133 S.Ct. 1958 (2013).

a detention facility.
Separate Defendant Brazell admits that the Supreme Court’s recent opinion in Maryland v.
King is instructive on the issue of whether the taking of Plaintiff’s DNA was constitutional.
Nonetheless, he maintains that Judge Bryant could have–and should have–addressed his arguments
regarding Plaintiff’s grievance form claims and his arguments regarding his lack of involvement in
collecting Plaintiff’s DNA. The Court disagrees. Judge Bryant correctly concluded that the motions
for summary judgment will be more efficiently considered if the parties are required to file new
motions that fully address each of Plaintiff’s claims and the applicable law. While Defendant Brazell
might have alternative arguments that do not rely on the application of Maryland v. King, the Court
cannot overlook its existence. A more in-depth analysis of its application, alongside Defendant’s
alternative arguments, is necessary.
The Court overrules Separate Defendant Brazell’s objections and adopts Judge Bryant’s
Report and Recommendation. (ECF No. 27). For the reasons stated herein and above, as well as
those contained in the Report and Recommendation, Separate Defendants’ Motions for Summary
Judgment (ECF No. 13 & 18) are DENIED. A new deadline for filing further motions for summary
judgment shall be set by separate order.
IT IS SO ORDERED, this 18th day of September, 2013.
/s/ Susan O. Hickey
Susan O. Hickey
United States District Judge