Teas v. Faulkenberry et al

Filing 64

ORDER ADOPTING REPORT AND RECOMMENDATIONS 62 and granting in part and denying in part 42 Motion for Summary Judgment ; Keith Ferguson and Hunter Petray are dismissed. Plaintiff's request for a jury demand is granted. The Clerk is directed to provide the parties with Magistrate Notice/Consent forms and parties are directed to return those by 4/14/09 if they wish to consent to the Magistrate Judge conducting the jury trial. Signed by Honorable Jimm Larry Hendren on March 19, 2009. (jn)

IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS FAYETTEVILLE DIVISION MARK ANTHONY TEAS v. Civil No. 07-5146 DEFENDANTS PLAINTIFF

SHERIFF KEITH FERGUSON, et al.

ORDER Now on this 19th day of March, 2009, comes on for consideration the Magistrate Judge's Report and Recommendation (Doc. 62) herein and the Plaintiffs' Objections to the Magistrate Judge's Report and Recommendation (Doc. 63). The Court has reviewed this case de novo and, being well and sufficiently advised, finds and orders as follows with respect thereto: 1. In his Report and Recommendation, the Magistrate Judge

recommended denying in part, and granting in part, the defendants' Motion for Summary Judgment (Doc. 42). Specifically, the

Magistrate Judge recommended that the motion be denied with regard to plaintiff's excessive-force claims, but that it be granted with regard to the following: * plaintiff's claim that he was denied access to the courts; * plaintiff's claim that the grievance procedure at the Benton County Detention Center was inadequate; * plaintiff's retaliation claim; and

*

plaintiff's claims against Captain Hunter Petray and Sheriff Keith Ferguson.

2.

In his objections to the Report and Recommendation,

plaintiff objects to the dismissal of his claim that he was denied access to the courts. In support of this objection he asserts

that, due to being denied access to a law library, he did not learn of the time limits for making a jury demand. The docket reflects that plaintiff filed a Motion for Trial by Jury (Doc. 48) on September 9, 2008. The Magistrate Judge denied

the motion as untimely (Doc. 60), as it was filed more than five months after the filing of defendants' answer to plaintiff's second amended complaint. See Fed. R. Civ. P. 38(b) (a party may demand

a jury trial no later than 10 days after the last pleading directed to the issue is served). In his objections to the Report and Recommendation, plaintiff requests that the "jury tr[ia]l issue again be considered." 3. Under Federal Rule of Civil Procedure 39(b), the Court

has the discretion, on motion of a party, to order a jury trial even though a timely demand for one was not made. Here, the Court finds it appropriate to exercise such

discretion. Plaintiff has offered an explanation for his failure to timely demand a jury trial ­- he did not learn of the time limits because he was denied access to a law library. Further, the claims which remain to be tried in this case -- after disposition of defendants' summary judgment motion -- are excessive-force claims.

Whether plaintiff will succeed on these claims will depend largely upon whether the fact-finder believes his version of the events in question -- or whether they believe defendants' versions of those events. Such credibility determinations are particularly

appropriate for a jury to decide.

Finally, since no scheduling

order has yet been issued in this case, defendants will not be unfairly prejudiced if the case is set for a jury trial -- rather than a bench trial. Based on the foregoing, plaintiff's request for a jury trial will be granted. The granting of plaintiff's request for a jury

trial alleviates any injury resulting from plaintiff's alleged denial of access to a law library. Plaintiff's access to the See Hartsfield

courts claim is, therefore, subject to dismissal. v. Nichols, 511 F.3d 826, 831-32 (8th Cir. 2008). 4. follows: *

Based on the foregoing, the Court hereby orders as

The Magistrate Judge's Report and Recommendation (Doc.

Doc. 62) is hereby ADOPTED in its entirety. * Accordingly, defendants' Motion for Summary Judgment

(Doc. 42) is GRANTED with regard to plaintiff's claim that he was denied access to the courts; plaintiff's claim that the grievance procedure at the Benton County Detention Center was inadequate; plaintiff's retaliation claim; and plaintiff's claims against

Captain Hunter Petray and Sheriff Keith Ferguson.

Plaintiff's claims against Petray and Ferguson are DISMISSED WITH PREJUDICE and these defendants are DISMISSED from this action. * Defendants' Motion for Summary Judgment (Doc. 42) is

DENIED with regard to plaintiff's excessive-force claims. * Plaintiff's request ­ contained in his objections to the

Report and Recommendation ­ that the Court reconsider his jury demand is hereby GRANTED. be tried to a jury. Plaintiff's excessive-force claims will

The District Court Clerk is directed to If the

provide the parties with Magistrate Notice/Consent forms.

parties wish to consent to the Magistrate Judge conducting the jury trial, they are directed to sign and return the consent forms by April 14, 2009. If the Court has not received the signed consent

forms by April 14th , it will issue an initial scheduling order setting the case for a jury trial before the undersigned. IT IS SO ORDERED. /s/Jimm Larry Hendren HON. JIMM LARRY HENDREN UNITED STATES DISTRICT JUDGE