Setzke v. Ferguson et al

Filing 66

ORDER adopting in part Report and Recommendations re 57 Report and Recommendations.; granting 59 Motion to Supplement; denying 60 Motion for Permanent Injunction; denying 61 Motion for Order; ORDER REFERRING CASE to Honorable James R. Marschewski. Signed by Honorable Jimm Larry Hendren on February 2, 2009. Motions referred to James R. Marschewski.(tg)

IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS FAYETTEVILLE DIVISION RAYMOND SETZKE v. Civil No. 07-5185 PLAINTIFF

SHERIFF KEITH FERGUSON; CAPTAIN HUNTER PETRAY; OFFICER REYES; OFFICER FRY; LT. CARTER; DR. HUSKINS; and JOHN DOE OFFICERS ORDER Now on this 2nd day of February, 2009,

DEFENDANTS

comes

on

for

consideration the following: * Report And Recommendation Of The Magistrate Judge

("R&R")(document #57); * plaintiff's Objections To Magistrates Report And

Recommendation (document #58); * plaintiff's Motion To Supplement Motion For Summary

Judgment (document #59); * #60); and * plaintiff's Motion For US Marshalls [sic] To Transport plaintiff's Motion For Emergency Injunction (document

(document #61). 1. access to Plaintiff asserts seven claims in this case: the courts, denial of medical denial of use of

attention,

excessive force, failure to intervene in the use of excessive force, failure to train or supervise, interference with his legal

mail, and improper classification.

The R&R recommends dismissal

of all claims except the excessive force claim. 2. Plaintiff objects to the R&R only insofar as it relates He

to his failure to intervene and failure to train claims. contends that three Benton County Detention Center

("BCDC")

officers (Simmons, Becker, and Thompson) were present during the incident with defendant Reyes that led to his excessive force claim, and that they failed to intervene to prevent the use of force. With regard to the failure to train claim, plaintiff

contends that BCDC had no policy relating to intervention in staff/inmate assault situations, so there could not have been any training on the matter. 3. The Court finds plaintiff's objections sufficiently well

taken to remand the matter to the Magistrate Judge for the purpose of determining whether Simmons, Becker, and Thompson were present at the time of the incident, and if so, whether they should be identified as the John Doe defendants in this case. The Court

further remands for the purpose of inquiry as to whether BCDC had, in the relevant time frame, any official policy relating to intervention in staff/inmate assaults. 4. Plaintiff's Motion To Supplement Motion For Summary

Judgment will be granted. 5. Plaintiff's Motion For Emergency Injunction states that

plaintiff "fears for his life in the State of Arkansas due to the

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above actions," but he does not spell out what the "above actions" are. He appears to refer to actions that might be referenced

somewhere in the file of this case, but that file comprises over sixty documents, many of which have multiple attachments, and some of which are quite lengthy, and the Court declines the implied invitation to comb this mass of material to determine if there is some basis for plaintiff's motion. 6. It will be denied.

The basis of plaintiff's Motion For US Marshalls [sic]

To Transport is his claim that he has "received word from family that this Court has sent notice for the plaintiff to appear in court in one of his federal cases in the United States District Court Western District of Arkansas." No such notice was issued in this particular case, however, and the Court will not search the files of plaintiff's other cases to determine whether such notice was issued in one of them. Nor will it act on the basis of what

may be occurring in some other case. IT IS THEREFORE ORDERED that the Report And Recommendation Of The Magistrate Judge is adopted in part. The Report And Recommendation is adopted insofar as it recommends dismissal of plaintiff's claims for denial of access to the courts, denial of medical attention, interference with his legal mail, and improper classification, and those claims are dismissed with prejudice. The Report And Recommendation is also adopted insofar as it -3-

recommends denial of summary judgment as to plaintiff's claim of excessive force. The Report And Recommendation is not adopted insofar as it recommends dismissal of plaintiff's claims for failure to

intervene in the use of excessive force and failure to train, and those claims are remanded to the Magistrate Judge for the purpose of (a) determining whether BCDC employees identified as Simmons, Becker, and Thompson were present at the time of the incident which led to plaintiff's claim; (b) if so, whether they should be made defendants; and (c) determining whether BCDC had, in the relevant time frame, any official policy relating to intervention in staff/inmate assaults. IT IS FURTHER ORDERED that plaintiff's Motion To Supplement Motion For Summary Judgment (document #59) is granted. IT IS FURTHER ORDERED that plaintiff's Motion For Emergency Injunction (document #60) is denied. IT IS FURTHER ORDERED that plaintiff's Motion For US

Marshalls [sic] To Transport (document #61) is denied. IT IS SO ORDERED. /s/ Jimm Larry Hendren JIMM LARRY HENDREN UNITED STATES DISTRICT JUDGE

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