Shadell v. Starks

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS PINE BLUFF DIVISION ETHAN SHADELL PLAINTIFF ADC #164173 V. No. 5:19CV00344-KGB-JTR KENNETH STARKS, Captain, et al. DEFENDANTS ORDER In this § 1983 prisoner case, Plaintiff Ethan Shadell alleges that Defendants Quintin Mixon (“Mixon”) and Captain Kenneth Starks (“Starks”) used excessive force against him and that Defendants Lakendra Smith (“Smith”) and Markilo Bray (“Bray”) failed to intervene to protect him. Defendants Mixon, Starks and Smith timely answered.1 Doc. 9. Bray did not.

On September 29, 2020, Defendant Markilo Bray (“Bray”) filed a Response to an Order from the Court directing him to show cause why default should not be entered against him. Doc. 28. In his response, Bray denies having any verbal or physical contact with Plaintiff Shadell on the date in question.

The Court in its discretion declines to find Bray in default. “There is a strong public policy, supported by concepts of fundamental fairness, in favor of trial on the In their Answer Mixon, Starks, and Smith deny violating Shadell’s constitutional rights and also deny that Shadell exhausted his administrative remedies. merits ... particularly when the monetary damages sought are substantial.” Swink v. City of Pagedale, 810 F.2d 791, 793 n.2 (8th Cir. 1987). Further, “[w]hen co- defendants are similarly situated, inconsistent judgments will result if one defendant defends and prevails on the merits and the other suffers a default judgment.” Angelo lafrate Constr., LLC v. Potashnick Constr., Inc., 370 F.3d 715, 722 (8th Cir. 2004).

Finally, Arkansas law provides, under the common-defense doctrine, that a timely filed answer by a co-defendant inures to the benefit of a defaulting co-defendant.

Richardson v. Rodgers, 334 Ark. 606, 612, 976 S.W.2d 941, 944-45 (1998).

The Court will treat Bray’s Response, Doc. 28, as an “Answer.” The Clerk of the Court is directed to redesignate the Response as an “Answer.”

IT IS SO ORDERED this Ist day of February, 2021.

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