Hanson v. Baxter County Arkansas et al
ORDER DENYING 160 Motion for Summary Judgment; DENYING 167 Motion for Order; DENYING 172 Motion to Convert to Bench Trial; and DENYING 173 Motion to Continue. Signed by Honorable P. K. Holmes, III on February 7, 2014. Copy of order mailed to non-CM/ECF participant. (jas)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
TAMMY CHRISTINE HANSON
Case No. 3:10-CV-03022
BAXTER COUNTY, ARKANSAS; SHERIFF JOHN
MONTGOMERY, Individually and as Sheriff of Baxter
County, Arkansas; LIEUTENANT RANDALL WEAVER,
Individually and as Lieutenant and Jail Administrator of
Baxter County Detention Center; JOSEPH TULLIS, M.D.,
Individually and as medical provider of Baxter County
Detention Center and as Deputy Sheriff of Baxter County,
Arkansas; DEPUTY WILTON “CHIP” NORRIS,
Individually and as medical provider of Baxter County
Detention Center and as Deputy Sheriff of Baxter County,
Arkansas; HELEN FENWICK, Individually and as Baxter
County Detention Center Jailer; JAILER TONY BECK
a/k/a TONY BURCH; WILLIAM ALTRAZAN,
Individually and as Baxter County Detention Center Jailer;
GARNETT MCMAHON, Individually and as Baxter County
Detention Center Jailer
Currently before the Court for consideration are the following motions and supporting
A motion (Doc. 160) for reconsideration of the Court’s October 10, 2013 order, or
in the alternative, supplemental motion for summary judgment filed by Defendant
Joe Mitchell Tullis, M.D. (“Dr. Tullis”) and supporting documents (Docs. 161-162),
Plaintiff Tammy Hanson’s response1 (Doc. 165) and supporting documents (Docs.
In his reply, Dr. Tullis moves to strike Ms. Hanson’s response as untimely. Ms. Hanson’s
response was due on January 6, 2014, but was not filed until January 7, 2014. The Court does not
believe that the one-day delay prejudiced Dr. Tullis, and declines to strike Ms. Hanson’s filing.
While represented parties have the ease and convenience of electronic, same-day filing, pro se parties
164, 166), Dr. Tullis’s reply (Doc. 168) and brief in support (Doc. 169), and Ms.
Hanson’s sur-reply (Doc. 171);
Ms. Hanson’s motion (Doc. 167) for an order directing the Arkansas Department of
Corrections (“ADC”) to permit Ms. Hanson access to potential witnesses who are
Ms. Hanson’s motion (Doc. 172) for a bench trial and Dr. Tullis’s response in
opposition (Doc. 174); and
Ms. Hanson’s motion (Doc. 173) to continue the scheduled trial and Dr. Tullis’s
response in opposition (Doc. 175).
The Court will address each motion in turn.
Motion for Reconsideration/Summary Judgment
Plaintiff Tammy Hanson originally filed this case on March 8, 2010. As Ms. Hanson was
incarcerated at the time she filed her complaint and the action was brought pursuant to 42 U.S.C. §
1983, the matter was referred to Chief United States Magistrate Judge James R. Marschewski for
the preliminary stages of the litigation pursuant to 28 U.S.C. § 636(b) and Local Rule 72.1(VIII)(B).
Over the next couple of years, the Magistrate ruled on various nondispositve motions and issued a
report and recommendation (Doc. 59) on motions for summary judgment filed by Defendants. An
order (Doc. 61) adopting that report and recommendation was entered by the then-assigned district
court judge, the Honorable Jimm Larry Hendren. An evidentiary hearing was scheduled and held
by the Magistrate to determine issues triable to a jury over two days in February of 2012 and one day
do not have access to file documents through the electronic filing system. Some leeway should be
given to pro se parties when legitimate logistical issues arise due to the necessity of conventional
filing. A one-day delay is not unreasonable in this instance.
in August of 2012. A report and recommendation (Doc. 148) (“R&R”) was issued after the
evidentiary hearing, in which the Magistrate recommended that certain claims be dismissed and that
others proceed to trial. Ms. Hanson filed a motion for extension of time to file objections to the
R&R and a motion for a transcript to be prepared of the evidentiary hearing. (Doc. 149). The
Magistrate granted the motion for extension of time, but denied the motion for preparation of a
transcript, as he did “not believe a transcript [was] necessary in order for Plaintiff to file her
objections.” (Doc. 150).
Ms. Hanson timely filed her objections to the R&R. No Defendant filed any objections to
the R&R or responded to Ms. Hanson’s objections. On October 10, 2013, the Court entered an order
declining to adopt the R&R and instead finding that all of Ms. Hanson’s claims that had earlier
survived summary judgment should proceed to adjudication via jury trial, which was set on the same
day for March 17, 2014. Nearly two months later, on December 4, 2013, Dr. Tullis filed the instant
motion for reconsideration and alternative supplemental motion for summary judgment. That motion
has now been fully briefed and is ripe for the Court’s consideration.
Dr. Tullis first argues that the Court committed procedural error by not conducting an
appropriate de novo review of the record in ruling on Ms. Hanson’s objections to the Magistrate’s
R&R. Because the Magistrate denied Ms. Hanson’s motion for a transcript, and Defendants did not
otherwise order a transcript, no transcript was available on the record for the Court’s review at the
time the Court filed its order adopting the R&R. The Court made note of this fact in its order, stating
“[t]he Court was . . . somewhat hampered in its review based on the fact that there are no transcripts
readily available for the evidentiary hearings conducted by the Magistrate.” (Doc. 153). The Court
went on to say that the lack of a transcript “did not preclude an adequate review, as any deficiencies
in the record were immaterial given the Court’s findings.” Id.
Dr. Tullis cites to several cases to support his argument that failure to review a transcript of
an evidentiary hearing when conducting a de novo review constitutes error. All of the cases cited
to by Dr. Tullis are, however, readily distinguishable in that—in those cases—the court ultimately
dismissed (or was considering dismissal of) the plaintiffs’ or petitioners’ claims without review of
the complete record before the magistrate. Hill v. Duriron Co., 656 F.2d 1208 (6th Cir. 1981)
(addressing district court’s adoption of R&R granting judgment in favor of defendants over
plaintiffs’ objections); Thompson v. Scurr, 668 F.2d 999 (8th Cir. 1982) (addressing district court’s
rejection of R&R and denial of petitioner’s writ of habeas corpus); Spaulding v. University of
Washington, 676 F.2d 1232 (9th Cir. 1982) (interlocutory review of district court’s denial of
plaintiffs’ motion for district court to prepare a transcript of evidentiary hearing before plaintiffs filed
their objections to an R&R); Wimmer v. Cook, 774 F.2d 68 (4th Cir. 1985) (addressing district
court’s adoption of R&R dismissing plaintiff’s case over plaintiff’s objections). In contrast, in this
case, the Court ruled in favor of Ms. Hanson in declining to adopt the R&R and preserving her
claims for trial.
Courts that have mandated that a de novo review include review of the transcript of any
hearings held by the magistrate have uniformly reasoned that the use of a magistrate cannot diminish
any existing right of the parties to have their case determined by an Article III judge. That right has
undoubtedly been upheld in this case. The Court’s order declining to adopt the R&R was based on
the fact that, after a review of the record available to the Court, it was clear that “some weighing of
the evidence and credibility determinations necessarily occurred in arriving at the conclusion that
certain of Ms. Hanson’s claims should be subject to dismissal at this stage of the litigation.” (Doc.
153, p. 3). The Court found that this was especially true given that Ms. Hanson’s claims had already
survived a summary judgment motion. The Court also kept in mind the respect due Ms. Hanson’s
jury demand, the Eighth Circuit’s mandate to use caution when testing claims via an evidentiary
hearing, and the high standard for dismissal at that stage of litigation.
The Court’s ultimate findings ensured that no party’s right to determination by an Article III
judge was violated. The Court cannot find that there is an obligation on a district court to review
every part of a lengthy record in order to conduct an adequate de novo review in every instance.
Because the parties’ rights were otherwise upheld, and because the Court could base its findings on
the portions of the record readily available, preparation of the transcript at that juncture was
unnecessary and would have resulted in further delay of this matter, which had already been pending
for almost three years. It would also have been an exercise in tedium for the Court to review a
lengthy transcript despite that fact that a decision could be made without such review.
Furthermore, the Court’s order should be viewed through the lens of the Magistrates Act,
pursuant to which this matter was referred to the Magistrate in the first instance. Under the
provisions of the Magistrates Act, 28 U.S.C. § 636, certain issues in civil matters may be referred
to a magistrate judge without consent of the parties pursuant to subsection (b), and “any and all
proceedings” may be referred to a magistrate judge upon consent of the parties pursuant to
subsection (c). While good cause must be shown for a district judge to vacate a referral to which the
parties consented under subsection (c), “[s]ection 636(b) contains no limitation on a district court’s
power to resume control over a case that has previously been referred to a magistrate judge.” Smith
v. Rebstock, 477 Fed. Appx. 884, 885 (3rd Cir. 2012) (unpublished). Since referrals made pursuant
to subsection (b) are made without the consent of the parties, a safeguard is inserted in references
made pursuant to subsection (b), “namely that the district judge alone acts as the ultimate
decisionmaker.” In re Wickline, 796 F.2d 1055, 1058 (8th Cir. 1986). While a district court may
not rely solely on a magistrate’s report and recommendation in making a final determination of any
issue in a case, it is certainly within the district court’s purview to retain control of any issue that is
not finally decided. Therefore, a thorough de novo review is required when adopting or denying a
report and recommendation and dismissing claims or entering judgment. Such requirement,
however, cannot impinge on an Article III judge’s authority and obligation to retain final control over
any dispositive matters as to which the parties have not consented to the magistrate’s exercise of
control. In declining to adopt the R&R in this case, the Court was exercising its authority to retain
final control over dispositive matters.
Finally, while Dr. Tullis seeks to invoke de novo review of the Court at this juncture, the fact
remains that he neither objected to the R&R nor responded to Ms. Hanson’s objections. Therefore,
while Ms. Hanson was entitled to de novo review before the Court dismissed any of her claims, Dr.
Tullis was not. Dr. Tullis did not respond to Ms. Hanson’s objections to point to the parts of the
record that he now cites as relevant to the Court’s consideration. Even had the Court ordered
preparation of the transcript and gone through the exercise of reviewing it, such review would have
been a largely unguided exploratory effort in which the Court would have had to essentially advocate
for the Defendants in trying to find something to contradict Ms. Hanson’s objections. In filing the
instant motion, Dr. Tullis is now doing what he should have done four months ago. The instant
motion for reconsideration is a belated attempt at responding to Ms. Hanson’s objections, which has
resulted in prolonged and unnecessary motion practice. Presumably, in asking for reconsideration,
Dr. Tullis is asking the Court to grant him relief from the order adopting the R&R pursuant to Rule
60 of the Federal Rules of Civil Procedure. The Court finds no grounds for granting Dr. Tullis relief
from its previous order under that rule.
As to Dr. Tullis’s alternative supplemental motion for summary judgment, the Court notes
that notes that Dr. Tullis has already had not one, but two, failed attempts (the original summary
judgment motion and the evidentiary hearing/R&R) to get the claims against him dismissed, and the
Court does not wish to condone coming back to the Court for a third attempt. However, because
both Dr. Tullis and Ms. Hanson have expended a great deal of time and effort in addressing the
issues raised by the motion, and because the filings have helped to clarify certain of Ms. Hanson’s
claims, the Court finds that the interests of justice and efficiency weigh in favor of addressing Dr.
Tullis’s alternative motion on the merits.
Having reviewed the parties’ arguments, and the portions of the now-prepared transcript cited
to by the parties, the Court finds that, while Dr. Tullis cannot be dismissed completely as a
Defendant to this case, Ms. Hanson’s claims against him should be narrowed. Ms. Hanson appears
to want to litigate claims against Dr. Tullis for everything from her alleged denial of fresh air and
sunlight to her alleged denial of adequate toilet paper. It is clear from the record, however, that Dr.
Tullis was not responsible for ensuring that Ms. Hanson received adequate fresh air, sunlight, toilet
paper, or feminine hygiene products. Those are issues covered by Ms. Hanson’s claims against the
other Defendants. Likewise, the Court finds that Dr. Tullis was not responsible for regulation and
provision of either food or medication at the jail. Therefore, Ms. Hanson has no claims against Dr.
Tullis regarding her diet or adequate provision of medication. Dr. Tullis could not be physically
present at the jail to look over the jailers’ shoulders every time food or medicine was (or should have
been) doled out. It is clear that, by both practice and policy, jail officials were ultimately responsible
for provision of both food and medication. Because Ms. Hanson’s claims regarding inadequate
treatment of her thyroid conditions stem from her view that Dr. Tullis did not adequately monitor
whether she was receiving her prescribed medication, and because the Court can discern no other
meritorious basis for a claim based on treatment of her thyroid conditions, the Court finds that Ms.
Hanson has no cognizable claims against Dr. Tullis based on his treatment of her thyroid conditions.
The Court narrows Ms. Hanson’s claims against Dr. Tullis and finds that only the following
issues may be presented as to Dr. Tullis at the trial of this matter: (1) Ms. Hanson’s claim that Dr.
Tullis was deliberately indifferent to her medical needs in allegedly allowing her to unnecessarily
suffer pain stemming from her ovarian cysts and their rupture; and (2) Ms. Hanson’s claim that Dr.
Tullis was deliberately indifferent to her medical needs in allegedly not adequately treating her
urological complaints. The Court finds that there remain sufficient genuine issues of material fact
regarding these allegations to preclude summary judgment in favor of Dr. Tullis at this time. These
issues include, but are not limited to, the following: what authority (apparent or actual) Dr. Tullis
had to prevent Ms. Hanson from being taken to the emergency room when Ms. Hanson otherwise
thought it was necessary; to what extent the jail actually relied on Dr. Tullis, regardless of the
policies in place, to provide either emergency or non-emergency care and to what extent Dr. Tullis
was aware of any such reliance; what actual recourse Ms. Hanson had to secure her own care without
going through Dr. Tullis or securing his approval; and whether the care provided by Dr. Tullis was
reasonable under the circumstances (and what the relevant circumstances were).
Because these issues remain, the Court finds that Dr. Tullis’s supplemental motion for
summary judgment should be denied. Ms. Hanson is cautioned, however, that she will be limited
in the presentation of her case against Dr. Tullis to the two discrete issues enumerated above.
Motion for Order Regarding Incarcerated Witnesses
Ms. Hanson moves the Court to issue an order directing the ADC to permit her access to
requested incarcerated prospective witnesses in order to allow her to interview such witnesses in
preparation for trial. No response was filed. Ms. Hanson states that many of her fact witnesses are
currently incarcerated in the ADC and that she has been denied access to interview those witnesses
either in person or via telephone. In at least one instance, access was denied by the warden based
on the fact that Ms. Hanson has previous misdemeanor convictions.
While the Court acknowledges that lack of access to these potential witnesses may cause
difficulties to Ms. Hanson in attempting to prepare her case for trial, the Court declines to enter an
order directing the ADC to allow her access. The ADC must retain some discretion over the running
of its own facilities. While Ms. Hanson avers that she is not a security threat, the ADC has the
discretion to refuse visitation based on criminal history or any number of other reasons. Ms. Hanson
can continue to seek recourse through the ADC system.
In the event Ms. Hanson remains unable to interview witnesses before trial, she should make
a note as to which witnesses she was unable to speak with when listing her witnesses in her pre-trial
disclosure sheet. Defendants will be expected to disclose, within three days of Ms. Hanson filing
her pre-trial disclosure sheet, whether they have spoken to any such witnesses in preparation for trial.
As needed, and giving due consideration to the interests of efficiency and justice, Ms. Hanson will
be given some opportunity to speak with her witnesses prior to their testimony at trial.
Ms. Hanson’s motion for order (Doc. 167) is DENIED.
Motion for Bench Trial
While Ms. Hanson originally made a jury trial demand, she now moves the Court to convert
the scheduled jury trial to a bench trial. (Doc. 172). Defendants, however, also made a jury demand
(Doc. 18, ¶ 9), and at least one Defendant—Dr. Tullis—has responded in opposition to Ms. Hanson’s
request for a bench trial. (Doc. 174). Pursuant to Federal Rule of Civil Procedure 38(d), a proper
jury demand may be withdrawn only with the parties’ consent. Because Dr. Tullis does not consent
to withdraw his jury demand, Ms. Hanson’s motion for a bench trial (Doc. 172) must be DENIED.
This case remains set for trial by jury.
Motion to Continue
Ms. Hanson moves to continue the jury trial of this matter currently set for March 17, 2014.
(Doc. 173). Dr. Tullis has filed a response (Doc. 175) opposing any continuance. Ms. Hanson states
that she has retained an expert in the field of jail operations who has a conflict with the current trial
date and, in fact, the entire month of March. This matter has been pending for almost four years, and
this trial date was set in October of last year. Absent some indication that the testimony is relevant,
admissible, and vital to Ms. Hanson’s case, the Court declines to continue this litigation further on
the basis that a recently retained expert will not be available.
Ms. Hanson’s motion to continue (Doc. 173) is DENIED, and the case remains set for jury
trial to begin March 17, 2014.
For all the reasons set forth above, IT IS ORDERED that Dr. Tullis’s motion for
reconsideration and, in the alternative, for summary judgment (Doc. 160) is DENIED.
IT IS FURTHER ORDERED that Ms. Hanson’s motion for order (Doc. 167) is DENIED.
IT IS FURTHER ORDERED that Ms. Hanson’s motion to convert the scheduled jury trial
to a bench trial (Doc. 172) is DENIED.
IT IS FURTHER ORDERED that Ms. Hanson’s motion to continue (Doc. 173) is DENIED.
IT IS SO ORDERED this 7th day of February, 2014.
/s/P. K. Holmes, III
P.K. HOLMES, III
CHIEF U.S. DISTRICT JUDGE
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