Shell v. Otwell et al

Filing 37

ORDER reconsidering 23 MOTION for Leave to Amend Complaint. Plaintiff's Motion to Amend 23 is DENIED. The Initial Scheduling Order deadlines are reinstated, discovery is no longer stayed, and Defendants Motion for Summary Judgment is due January 8, 2024. Signed by Honorable Barry A Bryant on November 14, 2023.(mll)

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IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS TEXARKANA DIVISION ROBERT D. SHELL v. PLAINTIFF Civil No. 4:23-cv-04053 JAIL ADMINISTRATOR STEVEN OTWELL; LIEUTENANT GHORMLEY; NURSE PRACTIONER DARRELL WAYNE ELKIN; GUARD KATIE SHEETS; GUARD JACKSON; GUARD WILL; and FRED PHILLIPS DEFENDANTS ORDER Plaintiff, Robert D. Shell originally filed this 42 U.S.C. § 1983 action pro se on May 10, 2023. (ECF No. 1). Plaintiff proceeds pro se and in forma pauperis in this matter. Currently before the Court is the reconsideration of Plaintiff’s Motion to Amend and join Fred Phillips as a defendant in this matter. (ECF No. 23). In his original Complaint, Plaintiff asserted allegations against defendants from both Nevada County Detention Center (“NCDC”) and the Hot Springs County Jail (“HSCJ”). The Court severed Plaintiff’s claims into two separate cases by Order dated May 10, 2023. (ECF No. 2). This Order caused the instant case with only Nevada County defendants to be opened and a separate case, at Case Number 6:23-cv-0658, with only Hot Springs County defendants to be opened in the Hot Springs division of this Court. On August 10, 2023, Plaintiff filed a Motion to appoint counsel and amend his Amended Complaint. (ECF No. 23). On October 31, 2023, the Court denied Plaintiff’s Motion to appoint counsel but granted his motion to amend his Amended Complaint to add Fred Phillips as a defendant in this matter. (ECF No. 30). The Court has not yet ordered service on Fred Phillips. In researching Mr. Phillip’s address for service, the Court determined that Fred Phillips is the jail administrator at the HSCJ. While this fact was not made clear in Plaintiff’s Motion, upon a second reading, the Court acknowledges its misunderstanding of the facts presented by Plaintiff related to Mr. Phillips’s employment. Accordingly, the Court finds reconsideration of Plaintiff’s Motion to Amend is necessary to correct a manifest error of fact. See Hagerman v. Yukon Energy Corp., 839 F.2d 407, 414 (8th Cir. 1988). As previously explained to Plaintiff in the severance Order, this case contains his claims against Neveda County defendants and Case Number 6:23-cv-06058 contains his claims against Hot Springs County defendants. (ECF No. 2). Accordingly, Fred Phillips is not an appropriate defendant in this case. Plaintiff may move to join Mr. Phillips in Case Number 6:23-cv-6058, through his appointed counsel, if he so chooses. Accordingly, upon reconsideration, Plaintiff’s Motion to Amend (ECF No. 23) is DENIED. Further, the CLERK is directed to: (1) STRIKE Plaintiff’s Supplement (ECF No. 32) from the docket in this matter; and (2) terminate Fred Phillips as a Defendant in the case heading. Lastly, the Initial Scheduling Order deadlines are reinstated, discovery is no longer stayed, and Defendants Motion for Summary Judgment is due January 8, 2024. Plaintiff is further cautioned he still proceeds pro se in this case and his counsel appointed in 6:23-cv-06058 has no obligation to aid in the prosecution of this matter against Nevada County. Accordingly, Plaintiff must participate in discovery with Defendants’ counsel in this case. IT IS SO ORDERED, this 14th day of November 2022. s/ Barry A. Bryant HON. BARRY A. BRYANT UNITED STATES MAGISTRATE JUDGE 2

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