King v. Anderson, et al (INMATE 1)
OPINION AND ORDER directing that Plaintiff's motion to alter, amend, or vacate the judgment, or in the alternative, for reconsideration, (Doc. # 110 ), is DENIED; further ORDERED that the Clerk of the Court is DIRECTED to label and preserve the flash drive submitted to chambers as Exhibits E and N to Plaintiff's Documents 101 and 102 . Signed by Chief Judge William Keith Watkins on 7/2/14. (scn, )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
ANDERSON, et al.,
CASE NO. 2:12-CV-190-WKW
OPINION AND ORDER
Before the court is Plaintiff’s motion to alter, amend, or vacate the judgment,
or, in the alternative for reconsideration. (Doc. # 110.) Plaintiff has also filed a
Notice to the Court correcting the court’s mistaken belief that Plaintiff failed to
submit electronic evidence cited in his opposition to Defendants’ motion for
summary judgment. (Doc. # 109.) After locating and examining the electronic
evidence and reviewing Plaintiff’s arguments in support of his motion, the court
concludes the motion is due to be denied.
In Plaintiff’s Notice (Doc. # 109), counsel represents that when she handdelivered her courtesy copies of her opposition briefs to chambers in April 2014,
she pointed out to the receiving law clerk that a flash drive for storing electronic
media was attached to one of the rings of one of the binders. The flash drive
contained exhibits in support of Plaintiff’s briefs. Unfortunately, the clerk was not
assigned to Plaintiff’s case, and counsel’s oral message was not conveyed. The
flash drive, which is small, went unnoticed in the courtesy-copy binder.
When Defendants’ motions for summary judgment were submitted before
the court, the court believed that Plaintiff’s counsel neglected to furnish the
electronic exhibits, cited in the opposition briefs as Exhibits E and N. Plaintiff
filed no flash drive, disc, or any other media storage device with the Clerk’s
In order to avoid ex parte communication with counsel, chambers
requested that an employee of the Clerk’s Office contact Plaintiff’s counsel by
phone to request Plaintiff’s electronic evidence. An employee of the Clerk’s
Office telephoned Plaintiff’s counsel’s office during normal business hours at least
once on May 21, 2014, and left a message for Plaintiff’s counsel with Anthony
Bush, another attorney whom Plaintiff’s counsel shares a landline. There was no
response from Plaintiff’s counsel to the Clerk’s Office. Thus, the court noted in its
Memorandum Opinion and Order, entered June 2, 2014, that “Mr. King ha[d] not
provided the video to the Clerk of the Court, even after being reminded by
telephone.” (Doc. # 106, at 5 n.5.)1
In Plaintiff’s recent Notice to the Court, counsel asserts that “[a]s far as [she] is aware,”
the video furnished to chambers is “sufficient.” (Doc. # 109, at 2.) Plaintiff’s counsel is advised
that the Clerk of the Court – not the undersigned or any other judge – is the official record keeper
On June 30, 2014, twenty eight days after entry of the Memorandum
Opinion and Order, counsel informed the court of its oversight, and the small silver
flash drive was sought and found in a white binder, attached to one of the binder’s
rings, just as Plaintiff’s counsel assured the court. The court regrets the oversight
of the electronic evidence submitted with the courtesy copies of Plaintiff’s
However, the record should reflect that, until today, the
electronic evidence was not part of the record maintained by the Clerk of the
In Plaintiff’s pending motion, he contends that the court’s judgment must be
altered, amended, or vacated because it contains a clear error or will result in
manifest injustice. (Doc. # 110, at 1.) Plaintiff asserts that the court must consider
(1) the video of the events of September 17, 2011 in Cellblock 4-B, and (2) the xrays of his fractured hand. The court has reviewed the video and the x-rays, and
neither supports the relief Plaintiff requests.2
of the court’s civil docket. See Fed. R. Civ. P. 79(a)(1). Anything considered by the court must
be made part of the official record, and counsel should have furnished the electronic exhibits to
the Clerk’s Office.
To preserve the record, the court will direct the Clerk of the Court to include the flash
drive as Exhibits E and N to Documents 101 and 102.
The video footage from September 17, 2011, is accessible by clicking the
“EZViewLog500” icon within each of the video exhibit folders on the flash drive.
The video evidence shows camera footage from two angles of the Cellblock
where Plaintiff was assaulted by a fellow inmate with a broom handle, as well as
footage of Officer Anderson in the control booth observing and reacting to the
assault. The video footage aligns with Defendants’ representation of events – i.e.,
the time that the fight broke out, the immediate reaction of Officer Anderson on his
radio to request support from other officers, and the total wait time of between two
and three minutes before enough officers arrived and were able to jointly enter the
Cellblock to stop the assault and restore order. (See Doc. # 106, at 5.) The court’s
summary judgment findings that the Defendant Officers were not deliberately
indifferent in their failure to intervene or in their failure to appreciate a substantial
risk of harm to Plaintiff are not clearly erroneous in light of the video evidence.3
Hence, consideration of the video does not impact the court’s conclusions.
Similarly, the x-ray images furnished on the flash drive do not affect the
court’s ruling on Defendants’ motions for summary judgment. The x-ray images
are from October 5, 2011, and October 26, 2011 – the two dates that Montgomery
County transported Plaintiff to see Dr. Mattox about his fractured hand.
Defendants never disputed that Plaintiff’s hand was fractured during the altercation
on September 17, 2011 or that x-rays taken in October 2011 supported the
Plaintiff also suggests that the court failed to consider the video evidence to support his
allegation that inmates were permitted to use the broom to change the TV channel in their dorm,
but the court accepted Plaintiff’s allegation as true, even without seeing the video footage,
because the Defendant Officers admitted that fact.
diagnosis of a fractured hand.
It is therefore unclear how the court’s non-
consideration of the x-ray images was erroneous when the x-ray images confirm
The only mention of inadequate medical evidence in the
Memorandum Opinion and Order is in Part IV.C.2.c., with respect to Defendant
Dr. Gurley, where the court concluded that Plaintiff lacked evidence showing a
permanent physical injury to his hand. (See Doc. # 106, at 30–31.) Plaintiff
asserts in his motion that the court’s consideration of the October 2011 x-rays will
impact the court’s conclusion that Dr. Gurley is entitled to summary judgment on
the deliberate indifference to medical needs claim. (See Doc. # 110, at 2 n.1.)
Plaintiff fails to appreciate that x-rays from 2011 do not prove a permanent injury.
Finally, Plaintiff uses his motion to reassert arguments offered at summary
Curiously, Plaintiff contends that “[t]he [c]ourt failed to address
Plaintiff’s claims [and] arguments against the [D]efendant [O]fficers Anderson,
Postell, Scarver, and Ford on summary judgment.” (Doc. # 110, at 2.) Plaintiff
requests that the court “consider [these claims] for the first time” because the court
resolved Defendants’ motions for summary judgment “without ever analyzing or
discussing them.” (Doc. # 110, at 2–3.) The court declines Plaintiff’s invitation to
analyze his claims in the first instance because each of Plaintiff’s three
constitutional claims was considered thoroughly in the Memorandum Opinion and
Order granting Defendants’ motions for summary judgment, including the two
constitutional claims of deliberate indifference against the Officer Defendants.
(See Doc. # 106, at 12–13 (resolving claims against Officer Ford); at 17–25
(analyzing claims against Officers Anderson, Postell, and Scarver); 17–21
(addressing specifically Plaintiff’s claim that these Defendant Officers “created”
and “allowed” the risk of harm to Plaintiff).)
For the foregoing reasons, Plaintiff’s motion to alter, amend, or vacate the
judgment, or in the alternative, for reconsideration, (Doc. # 110), is DENIED.
It is further ORDERED that the Clerk of the Court is DIRECTED to label
and preserve the flash drive submitted to chambers as Exhibits E and N to
Plaintiff’s Documents 101 and 102.
DONE this 2nd day of July, 2014.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?