Bunch v. Craig et al

Filing 35

ORDER granting in part and denying in part 23 Motion for Summary Judgment; denying 31 Motion to Strike ; ORDER ADOPTING REPORT AND RECOMMENDATIONS; ORDER REFERRING CASE to Honorable James R. Marschewski; Nathaniel R. Coy and Thomas E. Reed terminated. Signed by Honorable Jimm Larry Hendren on September 18, 2008. Motions referred to James R. Marschewski.(tg)

IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS FAYETTEVILLE DIVISION HENRY J. BUNCH v. Civil No. 06-5220 DEFENDANTS ORDER Now on this 18th day of September, 2008, comes on for PLAINTIFF

ROBERT ALLEN RILEY, et al.

consideration the Magistrate Judge's Report and Recommendation (Doc. 30), the Defendants' Motion to Strike Plaintiff's Response to Defendants' Defendants' Motion for Summary to the Judgment Magistrate (Doc. 31), and the and

Objections

Judge's

Report

Recommendation (Doc. 33). The Court has reviewed this case de novo and, being well and sufficiently advised, finds and orders as follows: 1. Plaintiff, an inmate in the Arkansas Department of

Correction, instituted this action alleging that he was subjected to excessive force during the course of his arrest on November 14, 2004. On August 25, 2008, Magistrate Judge James R. Marschewski

issued a Report and Recommendation, recommending that defendants' Motion for Summary Judgment (Doc. 23) be granted in part and denied in part. Specifically, Magistrate Judge Marschewski recommended

that the motion be granted with regard to plaintiff's claims against defendants Nathaniel Coy and Thomas Reed, as they were not involved in the alleged use of force. Magistrate Judge Marschewski

recommended that defendants' summary judgment motion be denied with regard to plaintiff's claims against the remaining five defendants. 2. In ruling on defendants' summary judgment motion,

Magistrate Judge Marschewski considered plaintiff's response to the motion, even though it was not filed with the Clerk of the Court until August 22, 2008, four days after the August 18, 2008

deadline.

Defendants now move to strike plaintiff's response to

the summary judgment motion on the grounds that it was untimely. Plaintiff responds that he put his response "in the mailing system by the said deadline, in accordance to the mailbox rule ...." (Doc. 34.) Plaintiff is correct that, under the mailbox rule, his

response was timely if he deposited it in the prison's internal mail system on or before the last day for filing. Taney County, 316 F.3d 813, 814-15 (8th Cir. 2003). See Sulik v. The postmark

on the envelope in which plaintiff mailed his response is August 18, 2008. Thus, plaintiff's response was timely filed and

defendants' Motion to Strike Plaintiff's Response (Doc. 31) is DENIED. 3. Defendants have also filed objections to the Report and

Recommendation, asserting that Magistrate Judge Marschewski erred in finding that the circumstances the officers were faced with in effectuating plaintiff's arrest were not "volatile or deadly." Defendants assert that Magistrate Judge Marschewski also erred in

finding that plaintiff was already handcuffed when tasered by a stun gun. The Court sees no merit to defendants' objections. As pointed out in the Report and Recommendation, plaintiff's version of events, which have to be accepted as true at the summary judgment stage, was drastically different than the defendants'. Plaintiff

contended that he was already restrained by handcuffs when the defendants allegedly tasered him with the stun gun and beat him and that he never resisted the defendants. The Court agrees with

Magistrate Judge Marschewski that this was sufficient to create a genuine issue of material fact concerning whether the amount of force used after plaintiff was restrained was excessive.

Accordingly, defendants' objections are OVERRULED. 6. Based on the foregoing, the Court hereby ADOPTS the

Report and Recommendation in its entirety and orders as follows: * Defendants' Motion to Strike Plaintiff's Response to Defendants' Motion for Summary Judgment (Doc. 31) is DENIED. * Defendants' Objections to the Magistrate Judge's Report and Recommendation (Doc. 33) are OVERRULED. * Defendants' Motion for Summary Judgment (Doc. 23) is GRANTED with regard to Coy plaintiff's and Thomas claims Reed against these

defendants

Nathaniel

and

defendants are DISMISSED from this action.

*

Defendants' Motion for Summary Judgment (Doc. 23) is DENIED with regard to plaintiff's claims against the remaining five defendants.

*

This

matter

is

referred

back

to

Magistrate Judge

Marschewski for further disposition. IT IS SO ORDERED. /s/Jimm Larry Hendren HON. JIMM LARRY HENDREN UNITED STATES DISTRICT JUDGE