Failure to locate former deputy in suit stalls case
Inmate says he was attacked
A state inmate who filed a lawsuit against a former Saline County deputy he said beat him during an altercation in August 2021 was told by a federal magistrate judge on Tuesday that if his attorney cannot locate the former deputy, the case will be dismissed. He will have an additional two months beyond that to refile.
Marty Dean Moore, 48, of Bismark, who is currently housed at the Arkansas Department of Corrections Grimes Unit in Newport, was sentenced in January 2023 to 25 years as a habitual offender on a child pornography possession conviction in Saline County Circuit Court. Moore alleged in a complaint that on Aug. 7, 2021, he was threatened and subsequently attacked by then-Deputy Zachary Gray, who he said was fired the day after the incident.
On Nov. 10, 2021, Moore filed a lawsuit in federal court seeking unspecified damages over allegations that Gray exercised malicious use of excessive force in attacking him.
Escorted into court Tuesday by two ADC guards, Moore was joined by his attorney, Brooks Wiggins of Benton.
As she opened the hearing, U.S. Magistrate Judge Benecia Moore noted that since the suit was filed, all attempts to serve Gray had been unsuccessful.
“After the lawsuit was filed,” Wiggins told the judge, “there was attempted service at the residence we believe that he had. That was not good service.”
According to court records, two attempts to serve Gray were made — one in December 2021 and one in May 2022. Last January, Moore’s original attorney, Degan Clow of Bryant, was relieved due to an unwaivable conflict of interest, and Wiggins was appointed to represent Moore. Wiggins said in court Tuesday that all of her attempts to locate Gray had been unsuccessful. She said she had been unable to obtain sufficient identifying information for Gray.
“I don’t have a date of birth,” she said. “I don’t have any identifying information that would allow a skip trace to bring back any result.”
Wiggins said Moore had told her prior to the hearing that he believed Gray had gone to active duty in the U.S. Marine Corps following his termination from Saline County.
“If that’s accurate there should be some way to trace him through his military service if he is actually still in the military,” she said. “I’m kind of out of options at this point. I don’t know how to go about getting him served or finding a place for him without either more identifying information or being able to access his military records.”
Wiggins said a Freedom of Information Act request to Saline County would only show his dates of employment with the county but would not provide his birth date or home address or other identifying information she said she could possibly use to locate Gray.
“We’re kind of hitting a brick wall at this point,” she said. “We’re not even sure at this point that he’s still actively a Marine, we have no idea … We’re both frustrated with not being able to find Mr. Gray.”
Wiggins said, however, that the information indicating Gray could be in the Marines provides a potential avenue toward locating him.
Judge Moore gave Wiggins and Moore a 90-day extension — until May 13 — to locate Gray and to serve him with the complaint.
“If you’re unable to serve him by that time,” Judge Moore said, “let the court know and at that point we’ll probably enter an order dismissing the case without prejudice and you’ll have a couple of months to refile the case if you can find Mr. Gray or something changes.”