Hanson v. Madison County Detention Center et al
OPINION & ORDER: The Court GRANTS the Madison County Defendants' Motion for Leave to File Sur-reply 174 , DENIES Hanson's Motion for Leave to Supplement the Record 172 , and DENIES Hanson's Motion to Amend the Judgment 164 . Signed by Magistrate Judge Robert E. Wier on 7/17/2017.(KM)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
MADISON COUNTY DETENTION
CENTER, et al.,
OPINION & ORDER
*** *** *** ***
Plaintiff John Hanson, by counsel, moved pursuant to Fed. R. Civ. P. 59(e) and
60(b)(6) to amend the Judgment. DE #164. The Madison County Defendants responded
in opposition, DE #169, as did the Richmond City Defendants. DE #170. Hanson replied.
DE #171. Following the briefing close, Hanson moved for leave to supplement the record
with additional evidence not previously filed. DE ##172, 176. The Madison County
Defendants and the Richmond City Defendants separately responded in opposition. DE
##175, 177. Despite having the opportunity, Plaintiff did not reply. Finally, the Madison
County Defendants separately moved for leave to file a surreply to Hanson’s reply in
support of his motion to amend the Judgment. DE #174. Hanson did not respond. All
three motions are now ripe for consideration.
For the following reasons, the Court GRANTS the Madison County Defendants
permission to file the substantive surreply (DE #174), DENIES Hanson leave to
supplement the record (DE #172), and DENIES Hanson’s motion to amend the Judgment
(DE #164). For the reasons stated, the briefing warrants the surreply. Hanson does not
offer any justification supporting record supplementation. On the merits of the
substantive motion, Hanson, who essentially seeks a de novo run at the dispositive
motion process, falls woefully short of warranting relief.
On January 23, 2017, the Court fully granted the Madison County Defendants’
motion for summary judgment (DE #127) and denied Plaintiff’s motion for summary
judgment (DE #130). DE #160 (Memorandum Opinion & Order). The Court
simultaneously entered judgment. DE #161. To briefly summarize the factual background
(to the extent necessary here), Hanson alleged mistreatment during a brief detention at the
Madison County Detention Center (MCDC) following his arrest for disorderly conduct in
Richmond, Kentucky. He raised constitutional claims under Fourth (pleaded as Eighth)
Amendment excessive force and failure-to-train theories as well as several related state
law claims. The Court assumes familiarity with the entire scope of the case, a more
detailed recitation of which occurs in DE #160. In the summary judgment Opinion, the
Court held that “[v]arious immunity doctrines and legal principles shield each Madison
County Defendant from every claim.” DE #160, at 2.
In the present substantive motion, Hanson seeks relief from judgment.
Specifically, Hanson asks the Court to alter or amend and set the matter for trial “to avoid
a grave injustice to Plaintiff and/or provide relief from judgment against him.” DE #1641, at 27. The motion partly rehashes prior arguments and partly endeavors to make novel
arguments on a remodeled record. The Court rejects these efforts and stands on its prior
rulings. Hanson fails to trigger relief under the taxing rubrics of Rule 59(e) and 60(b)(6).
MOTION FOR LEAVE TO FILE A SURREPLY
The Court first addresses the Madison County Defendants’ motion for leave to
file a surreply to Hanson’s reply in support of the motion to amend. See DE #174
(Motion). Hanson did not respond. The motion is ripe for consideration.
“Although the Federal Rules of Civil Procedure do not expressly permit the filing
of sur-replies, such filings may be allowed in the appropriate circumstances, especially
‘when new submissions and/or arguments are included in a reply brief, and a
nonmovant’s ability to respond to the new evidence has been vitiated.’” Key v. Shelby
Cnty., 551 F. App’x 262, 265 (6th Cir. 2014) (quoting Seay v. Tenn. Valley Auth., 339
F.3d 454, 481 (6th Cir. 2003)). “[M]any courts have noted” that surreplies “are highly
disfavored.” Liberty Legal Found. v. Nat’l Democratic Party of the USA, Inc., 875 F.
Supp. 2d 791, 797 (W.D. Tenn. 2012). Still, the Sixth Circuit reviews a district court’s
decision whether to grant leave to file a surreply “under the deferential abuse-ofdiscretion standard.” Mirando v. U.S. Dep’t of Treasury, 766 F.3d 540, 549 (6th Cir.
2014). A district court abuses its discretion, for example, when it denies permission to
file a surreply after a party presents “new arguments and new evidence in [its] reply
brief.” Eng’g & Mfg. Servs., LLC v. Ashton, 387 F. App’x 575, 583 (6th Cir. 2010).
Overall, though, “[w]hether to permit a party to file a surreply is a matter left to the trial
court’s discretion.” Rose v. Liberty Life Ins. Co. of Boston, No. 3:15-CV-28-DJH-CHL,
2015 WL 10002923, at *1 (W.D. Ky. Oct. 19, 2015).
The Court has fully analyzed the underlying briefing—DE ##164, 169, 170, and
171—as well as the motion for leave to file a surreply—DE #174. The Court, in an
exercise of its discretion, finds the Madison County Defendants’ proposed surreply
appropriate in the circumstances. The Sixth Circuit’s focus is whether “new submissions
and/or arguments are included in a reply brief.” Key, 551 F. App’x at 265; Ashton, 387 F.
App’x at 583. Here, as the Madison County Defendants persuasively claim, Hanson did
indeed include new arguments and evidence in DE #171; this justifies a surreply. To
briefly summarize, Hanson newly argued that the Court erred in its application of Scott v.
Harris, 127 S. Ct. 1769 (2007), and its progeny, specifically as to the summary judgment
analysis of Hanson’s excessive force claims arising from the pepper spray and taser
allegations. Compare DE #164-1, with DE #171. Hanson also newly argued that
Defendant Napier provided inconsistent statements as to Napier and Whitaker’s
involvement in the tasing incident, and he attached new evidentiary submissions
allegedly in support. See DE ##171-1, 173. Defendants limit the surreply to Hanson’s
new argument and documents, see DE #174-1, at 1 n.1, and appropriately refrain from
returning to ground already covered in the underlying motion briefing.
Further, the Madison County Defendants timely filed the motion for leave, greatly
diminishing any timing or gamesmanship concerns that may negatively tinge surreply
motions. See Key, 551 F. App’x at 265 (“[c]onsidering the amount of time that passed
between Shelby County’s filing of its reply brief and Key’s filing of her motion for leave
to file a sur-reply” and concluding the district court did not abuse its discretion in
denying Key permission to file a surreply given an “unexplained delay of six months in
moving for leave to file” it).
For these reasons, the Court GRANTS DE #174 and DIRECTS the Clerk to file
DE #174-1 in the record as a surreply particular to DE #171.
MOTION FOR LEAVE TO SUPPLEMENT THE RECORD
The Court next addresses Plaintiff’s motion, “pursuant to Civ. R. 60(b)(1),” to
supplement the record. Hanson seeks to add Defendant Whitaker’s recorded interview
with the Kentucky State Police and the FBI. DE ##172 (Motion), 176 (Conventional
Filing). Plaintiff contends that Whitaker’s statements given to the KSP and FBI
“completely contradict” his deposition testimony as to tasering of Hanson. Id. Per
Plaintiff’s authoring counsel, Hanson’s fourth group of lawyers during the pendency of
this suit, this recording was previously available to Plaintiff but not filed during summary
judgment briefing. Id. (“Plaintff’s current attorneys cannot speak as to why Plaintiff’s
previous attorneys failed to make this recording a part of the record.”). Hanson contends
the he “should not be penalized for his previous attorneys failing to include the recording
in the record.” Id. Both the Madison County Defendants and Richmond City Third-Party
Defendants oppose the motion to supplement. See DE ##175, 177.
Under Rule 59(e) and Rule 60(b), it is improper to introduce new evidence that a
party simply failed to introduce previously in the case. See, e.g., Whitehead v. Bowen,
301 F. App’x 484, 489 (6th Cir. 2008) (affirming denial of Rule 59(e) motion when a
new affidavit “was, at best, newly submitted evidence, not newly discovered evidence”
(emphases in original)); Howard v. Magoffin Cnty. Bd. of Educ., 830 F. Supp. 2d 308,
319 (E.D. Ky. 2011) (refusing to consider newly submitted, but not newly discovered,
evidence); Jinks v. Allied Signal, Inc. 250 F.3d 381, 385 (6th Cir. 2001) (“Rule 60(b),
however, does not provide relief simply because litigants belatedly present new facts or
arguments after the district court has made its final ruling.”); Berger v. Medina Cnty.
Ohio Bd. of Cnty. Comm’rs, No. 1:07CV0367, 2008 WL 926372, at *2–3 (N.D. Ohio
Apr. 3, 2008) (denying Rule 60(b) relief when no evidence presented that new materials
“were unavailable or unknown”). Here, in seeking to supplement the record, Hanson
tenders evidence that he admits was in his possession prior to the entry of judgment. He
offers no explanation for the failure to previously place Whitaker’s KSP/FBI interview in
the record, openly admitting no good cause for counsel’s earlier inaction. This is
particularly curious because Hanson’s lawyers at summary judgment remain counsel of
record. See DE #130, at 2; DE #172, at 5. Given that the tendered supplementation is
clearly not newly discovered under the meaning of Rule 59(e) or 60(b) and, therefore, not
properly considered under a motion to alter or amend, the Court DENIES DE #172.1
MOTION TO AMEND JUDGMENT
The Court now addresses Hanson’s motion to amend under Rules 59(e) and
60(b)(6). DE #164. The Madison County Defendants and Richmond City Defendants,
separately, responded in opposition. DE #169, 170. Hanson replied. DE #170. The
Madison County Defendants surreplied. DE #174-1. The matter is ripe for consideration.
Rule 59(e) permits motions, within a certain time limit, “to alter or amend a
judgment[.]” “A court may grant a Rule 59(e) motion to alter or amend if there is: (1) a
clear error of law; (2) newly discovered evidence; (3) an intervening change in
controlling law; or (4) a need to prevent manifest injustice.” Intera Corp. v. Henderson,
The Court carefully scrutinized n.4 in DE #172. Again, the context is Hanson, without
any justification for not timely presenting the evidence, trying to inject new material into
the record. Hanson claims in the footnote, evidently to justify supplementation, that the
Court, at multiple points, “wrongly cited” Whitaker’s and Napier’s testimony. That is a
serious claim. Thus, the Court reexamined—and verified—each and every citation.
Perhaps counsel simply misunderstands CM/ECF pagination, or is following deposition,
as opposed to exhibit, numeration. In any event, the Court stands by each and every
citation Hanson inaccurately criticized. Finally, the Court notes that Hanson, under oath,
like Whitaker in deposition, attributed tasing only to Napier. DE #127-2, Hanson Depo.,
428 F.3d 605, 620 (6th Cir. 2005); see also Bishawi v. Ne. Ohio Corr. Ctr., 628 F. App’x
339, 346 (6th Cir. 2014). Plaintiff invokes prong (4) here. DE #164-1, at 11 (“This Court
should reconsider its Order granting Summary Judgment to defendants to prevent
manifest injustice based on the numerous issues of material fact presented below.”).
Although prong (4) “appears to be a catch-all provision, it is not meant to allow a
disappointed litigant to attempt to persuade the Court to change its mind,” instead calling
for “fact-specific analysis that falls squarely within the discretionary authority of the
Court.” Lonardo v. Travelers Indem. Co., 706 F. Supp. 2d 766, 810 (N.D. Ohio 2010). As
an important limitation, “manifest injustice does not occur when a losing party attempts
to correct what has—in hindsight—turned out to be [a] poor strategic decision.”
Michigan Flyer LLC v. Wayne Cty. Airport Auth., 860 F.3d 425 (6th Cir. 2017) (quoting
GenCorp, Inc. v. Am. Int'l Underwriters, 178 F.3d 804, 834 (6th Cir. 1999)) (internal
quotation marks omitted). An injustice is manifest only if it is clear and direct in the
record; the requisite clarity must show injustice “apparent to the point of being almost
indisputable.” Pac. Gas & Elec. Co. v. United States, 74 Fed.Cl. 779, 785 (2006).
Additionally, a Rule 59(e) motion “may not be used to relitigate old matters, or to
raise arguments . . . that could have been raised prior to the entry of judgment.” Exxon
Shipping Co. v. Baker, 128 S. Ct. 2605, 2617 n.5 (2008); Roger Miller Music, Inc. v.
Sony/ATV Publishing, LLC, 477 F.3d 383, 395 (6th Cir. 2007) (“[U]nder Rule 59(e),
parties cannot use a motion for reconsideration to raise new legal arguments that could
have been raised before a judgment was issued.”). “A motion under Rule 59(e) is not an
opportunity to re-argue a case.” Sault Ste. Marie Tribe of Chippewa Indians v. Engler,
146 F.3d 367, 374 (6th Cir. 1998); see also Whitehead, 301 F. App’x at 489.
Similarly, Rule 60(b) permits a court to “relieve a party . . . from a final
judgment” upon proper motion under six enumerated grounds. Fed. R. Civ. P. 60(b).
Following five particularized grounds, Rule 60(b)(6), under which Plaintiff proceeds,
provides relief for “any other reason that justifies relief.” Fed. R. Civ. P. 60(b)(6). A
movant “seeking relief under Rule 60(b)(6) [must] show ‘extraordinary circumstances’
justifying the reopening of a final judgment.” Gonzalez v. Crosby, 125 S. Ct. 2641, 2649
(2005) (citing Ackerman v. United States, 71 S. Ct. 209, 212 (1950)). The Sixth Circuit
further requires that a movant show “something more” than one of the five particularized
grounds. East Brooks Books, Inc. v. City of Memphis, 633 F.3d 459, 465 (6th Cir. 2011);
Hopper v. Euclid Manor Nursing Home, Inc., 867 F.2d 291, 294 (6th Cir. 1989); West v.
Carpenter, No. 3:01-cv-91, 2013 WL 5350627, at *2 (E.D. Tenn. Sep. 23, 2013).
Hanson, though the movant, spends little time on these standards.
As with Rule 59(e), “Rule 60(b) does not allow a defeated litigant a second
chance to convince the court to rule in his or her favor by presenting new explanations,
legal theories, or proof.” Tyler v. Anderson, 749 F.3d 499, 509 (6th Cir. 2014); see Jinks
v. Allied Signal, Inc. 250 F.3d 381, 385 (6th Cir. 2001); see also Wright & Miller, 11
Federal Practice and Procedure § 2858 (3d ed.) (“A defeated litigant cannot set aside a
judgment . . . because the litigant failed to present on a motion for summary judgment all
of the facts known to him that might have been useful to the court.”). Further, the “grant
of relief under Rule 60(b) is circumscribed by public policy favoring finality of
judgments and termination of litigation.” Id.
Plaintiff’s motion takes one of two tacks: (1) repeating failed summary judgment
arguments or (2) presenting new or alternative arguments that he could have raised prior
to entry of judgment. Because neither Rule 59(e) nor 60(b) allows a party to relitigate
matters or raise earlier available arguments, this is an independent reason to deny the
motion in toto. See, e.g., J.B.F. through Stivers v. Kentucky Dep't of Educ., No. 16-6316,
2017 WL 2829101, at *1 (6th Cir. June 30, 2017) (motion “exclusively rehashed
misguided and failed summary judgment arguments and regurgitated rejected case
theories, thus constituting sufficient reason to deny the motion outright[ ]”) (internal
quotation marks omitted); Penley v. NPC Int’l, Inc., 2014 WL 12634410, at *3 (W.D.
Tenn. Dec. 3, 2014) (“NPC’s current argument is therefore a fallback position,
intermediate stance, or alternative line of reasoning that it could have previously raised
but failed to do so. Advancing it now will not satisfy either Rule 59(e) or Rule 60(b).”).
After full and plenary briefing, and granular consideration, the Court found
against Hanson at the summary judgment stage. He now seeks to re-tool prior arguments,
add substantive evidence to the record (evidence available at the prior briefing), and posit
new theories altogether. The Court has again looked at the original briefing and has
studied the original record (including the videos). The Court affirmatively rejects
Hanson’s reliance on materials he had in hand but, without explanation, did not use
before; that is not the territory of Rule 59(e) or 60(b). Further, the Court will not allow
Hanson to make new arguments in the post-judgment phase. Litigation has a sequence,
and a party cannot exorcise simple dissatisfaction with results through an unjustified doover.
Alternatively, however, the Court generally analyzes Hanson’s assertions on their
First—Plaintiff argues that, having now filed the various MCDC, state, and
national standards on which expert Eugene Miller relied, the Court should find Miller’s
opinion, and the accompanying standards, sufficient to create “an issue of material fact as
to whether the officers’ actions were reasonable due to their violation of policy standards
set by their own facility . . . to adhere to multiple rules of engagement[.]” DE #164-1, at
Hanson bases this argument on newly filed standards and policies of MCDC, the
Commonwealth of Kentucky, and the American Correctional Association. DE ##164-3
(Policies); 164-8 (Notice of Filing of Exhibits); 165 (Conventional Filing). As an initial
matter, of course, it is improper to use a Rule 59(e) or Rule 60(b) motion to introduce
new evidence that the party simply failed to introduce earlier. See, e.g., Whitehead, 301
F. App’x at 489 (affirming denial of Rule 59(e) motion when a new affidavit “was, at
best, newly submitted evidence, not newly discovered evidence” (emphases in original));
Howard v. Magoffin Cnty. Bd. of Educ., 830 F. Supp. 2d 308, 319 (E.D. Ky. 2011)
(refusing to consider newly submitted, but not newly discovered, evidence); Jinks, 250
F.3d at 387 (“Rule 60(b), however, does not provide relief simply because litigants
belatedly present new facts or arguments after the district court has made its final
ruling.”); Berger v. Medina Cnty. Ohio Bd. of Cnty. Comm’rs, No. 1:07-CV-0367, 2008
WL 926372, at *2–3 (N.D. Ohio Apr. 3, 2008) (denying Rule 60(b) relief when no
evidence presented that new materials “were unavailable or unknown”). Plaintiff’s expert
relied on these newly filed standards, absent from the summary judgment record, in
preparing his June 3, 2015, report; the documents were clearly available well in advance
of summary judgment briefing. As such, nothing qualifies them as newly discovered
evidence properly considered in a Rule 59(e) or Rule 60(b) motion.
The newly filed standards would change none of the Court’s previous
conclusions. The tendered standards perhaps remedy the difficulties noted in fully
evaluating Mr. Miller’s opinion testimony. See DE #160, at 22 (“Hanson relies primarily
on the expert opinion testimony of Eugene Miller. . . . However, Hanson did not attach or
file in the record any of the referenced standards. . . . Without the requisite factual basis,
Plaintiff’s arguments are difficult to process.”). However, the Court did not stop there,
finding that Plaintiff did not “reference any proper cases or legal standards to support the
predicate conclusion that Staggs’s failure to adhere to generalized rules of engagement
would govern the reasonableness of his actions under the Fourth Amendment and §
1983.” Id. at 22–23; see also, e.g., Brown v. Boone County, Ark., No. , 2014 WL
4404973, at *5 (W.D. Ark. July 25, 2014) (“Plaintiff seems to suggest that a violation of
the Arkansas Jail Standards amounts to a constitutional violation. It does not. Violations
of state law or state standards do[ ] not necessarily equate to a constitutional violation.”).
Attaching the missing standards does not address the error in attempting to judge
Defendants’ “conduct against broad standards divorced from context [, which] is
precisely the type of hindsight review courts must avoid.” DE #160, at 23 (citing Graham
v. Connor, 109 S. Ct. 1865, 1872 (1989)). The Graham analysis is case and fact specific;
Hanson again asking the Court to judge the reasonableness of Defendants’ actions
divorced from case particulars is unavailing and garners no post-judgment relief.
Additionally, using the newly filed standards, Hanson again claims that issues of
material fact persist regarding his failure-to-train/supervise claim against Madison
County and MCDC. DE #164-1, at 14–17. These arguments are not new and the Court
thoroughly rejected them on summary judgment. See DE #160, at 32–35. Plaintiff
perpetuates earlier arguments that Staggs, Whitaker, and Napier lacked formal training to
support the institutional failure-to-train theory of liability. These argument again fail for
First, the record does not support the position. Hanson claims that: (1) MCDC
never trained Staggs on appropriate use of force, DE #164-1, at 15 (citing DE #164-5
(Staggs Dep.) in which Staggs testified he did not recall if he had completed yearly inservice training prior to Hanson’s detention); (2) MCDC never trained Whitaker, id. at 16
(citing DE #164-4 (Miller Dep.)); and (3) MCDC never trained Napier on the use of a
taser, per Napier’s personnel file. Id. at 17. However, as the Court noted in the summary
judgment order, see DE #160, at 23, Staggs submitted an affidavit, with exhibits,
verifying that he did receive his in-service training, which included instruction on the
proper use of force, prior to the Hanson incident. See DE #138-13. Hanson ignores this
properly filed affidavit. As to Whitaker, Hanson misrepresents the training record,
alleging Whitaker received no training whatsoever. DE #164-1, at 16 (“No training at all
is the most severe inadequate training one can received.”). However, per Plaintiff’s
expert’s testimony, Whitaker received the state-mandated in-service training as required.
See DE #164-4, at 158. As to Napier, Plaintiff points to Napier’s personnel file to support
an assertion that he had no taser use training. However, Hanson does not cite to record
evidence, the file itself, in this contention. Again, the Court can only consider the record
Second, and as importantly, Plaintiff has not demonstrated that the Court erred in
applying the failure-to-train standard set out in Ellis v. Cleveland Mun. Sch. Dist., 455
F.3d 690, 700 (6th Cir. 2006). See DE #160, at 33–35 (Court’s discussion of Ellis
factors). Again, the context is record documentation that MCDC deputy jailers attended
state-mandated annual in-service training, which includes use of force instruction. See
DE #127-7 (Whitaker Dep.), at 12–13; DE #138-13 (Staggs Affidavit). The Court
previously held that Hanson failed to demonstrate that this required training, and
MCDC’s compliance with the requirement, amounted to or suggested constitutionally
inadequate training. DE #160, at 35. Nothing Plaintiff now points to in the motion to
amend changes this assessment. Further, Hanson again fails to show deliberate
indifference to inadequate training or supervision. See id. (citing Ellis, 455 F.3d at 700–
01). Again, in the absence of any showing of training inadequacy or MCDC’s failure to
respond to numerous and repeated complaints of constitutional violations by jailers 2,
Hanson failed to show any issue of material fact. Defendants, institutionally and
otherwise, were entitled to summary judgment, and Hanson’s motion to amend that
judgment is unavailing.
Second—Plaintiff argues that the Court erred in finding each individual defendant
entitled to qualified immunity on the various state law claims. DE #164-1, at 17–18.
Plaintiff baldly states that Defendants’ “clearly acted in bad faith” because “they had
never been trained to act in such a way.” Id. “When anyone blatantly ignores multiple
policies, and training they have, at the very least, acted in bad faith if not maliciously and
Of course, again, the Court perceives no predicate constitutional violation, another
with the intent to harm.” Id. At the prior dispositive motion iteration, Plaintiff essentially
ignored state law immunity as an issue.
Plaintiff’s contention here fails. He does not cite any law showing that a failure to
follow standards or policies automatically constitutes bad faith. Nothing presented here
by Plaintiff changes the Court’s prior conclusion that the record contains “utterly no
indication that the individual defendants willfully or maliciously intended to harm
Plaintiff.” DE #160, at 40–41 (citing Rowan Cnty. v. Sloas, 201 S.W.3d 469, 481 (Ky.
2006)). Plaintiff’s argument provides no basis for relief.
Third—Plaintiff argues that the Court misapplied Rudlaff v. Gillispie, 791 F.3d
638 (6th Cir. 2015), in finding no dispute of material fact as to the reasonableness of the
force used by Staggs during the initial booking confrontation. DE #164-1, at 18–19
Essentially, Hanson tries to distinguish Rudlaff. Plaintiff claims that his version of
the incident justifies submission of the excessive force claim to the jury. Id. The video
tells the story without varnish. Hanson, intoxicated and fresh off his fight at Jerzees, was
upset from the moment of entry. Despite being surrounded by authorities, he was profane,
belligerent, disputatious, and demanding. He repeatedly interrupted the officers, cursed
their performance, and refused instruction. To say he did not slam items on the counter is
to ignore the digital proof. He then directly, with the saltiest of talk, contradicted a plain
order concerning his verbal posture and physically turned to confront the officer behind
him. Staggs acting to quell the matter at that point inarguably squares with Rudlaff’s
permitted force. It is worth noting that even after the contact, while facing physical
interdiction and being told to stop resisting, Hanson continued to volubly and ardently
pledge his commitment to resistance. Plaintiff does not convince the Court he is entitled
to relief from judgment.3
Fourth—Plaintiff argues that the Court failed to identify eleven separate issues of
material fact, or otherwise erred in its findings, including Plaintiff’s stance when he
turned toward Staggs at booking, describing Staggs use of force as “minimal,”
compliance with MCDC policy, whether Hanson resisted throughout the entire
application of force during the booking confrontation, whether the video surveillance
refutes Plaintiff’s testimony of the pepper spray and tasing incidents, and others. The
theories are renewed (but earlier rejected) arguments or new contentions—neither is
proper or here availing.
Plaintiff’s critiques are broad and wide-ranging, essentially relitigating the
summary judgment motion. The Court will not revisit the entire record on a motion to
amend. See Sault Ste. Marie, 146 F.3d at 374; Jinks, 250 F.3d at 385. The Court took
considerable care in previously digesting the entire record, particularly the video
surveillance, applied the applicable legal standards, and found, on the record then before
it, judgment for the County Defendants proper.
The Court does feel compelled to address Hanson’s liberties with the record. In a
motion where Plaintiff criticizes the Court for “grave mistakes when evaluating the
record,” DE # 171, at 1, the Reply argument merits mention. Plaintiff sharply changes
tack in the Reply, mentioning Scott v. Harris for the first time and positing a wholly new
One after-the-fact comment made by a fellow jailer upon reviewing the video does not
change the reasonableness analysis under Rudlaff, in light of the clearly depicted events
captured by the surveillance video. See Rudlaff, 791 F.3d at 641 (active resistance
justifying use of force includes “disobeying officers”). The video clearly show Hanson
resisting the commands and direction of the deputy jailers. The Court stands on its prior
version of events relative to claimed tasing. To be clear, the claim that jail personnel
tased Hanson in the first cell is new and directly contradictory to Plaintiff’s testimony and
prior positions in the case. In the Reply, the lawyers chide the Court as having “wrongly
assumed [Hanson] testified that [the tasing] occurred in a shower cell.” DE #171, at 3 n.8.
Plaintiff tries to inject a new tasing instance into the cell one period—the period when the
jailers first took Hanson out of the restraint chair. Id. at 3–4 (citing to 2:18:49 to 2:222:36:09).
The Court assumed nothing; it followed the proof. In the Second Amended
Complaint, Hanson specifically alleged that the tasing happened when he, after the
pepper spray, “was then dragged into another room.” DE #25, at ¶ 17 (emphasis added).
There were only two locations depicted on the video. He testified it happened in the room
“where they were going to decontaminate me[.]” DE #127-2, at 50–51. In Hanson’s
initial Rule 59(e) brief, the lawyers explicitly said: “[Hanson] recalls Officer Rawlins and
Officer Whitaker pinning Hanson’s arms against the wall and Officer Napier repeatedly
tasing him in the chest and legs while in the shower cell.” DE #164-1, at 9 (emphasis
added). Creative lawyering is one thing. Taking an established record, with set positions,
and conjuring new claims for assessment is quite another. The Court rejects Hanson’s
efforts to create a fact question related to speculative tasing in cell one. The laundry list
of other criticisms fails generally to convince the Court that it erred and fails specifically
to show any manifest injustice from the subject Opinion. The Court stands on its prior,
This includes the prior treatment as to Napier, Rawlins, Whitaker, and Staggs, which the
Court does not repeat. Plaintiff did not establish a triable fact question as to a
Fifth—finally, and only in reply, Plaintiff argues that the Court misapplied Scott
v. Harris, 127 S. Ct. 1769 (2007), and Witham v. Intown Suites Louisville Ne., LLC, 815
F.3d 260 (6th Cir. 2016), in evaluating the surveillance video. As to the Scott v. Harris
argument, the Court stresses that it did not treat the video as depicting the tasing incident.
The video as to the booking confrontation is complete, and the pepper spray incident, in
the context of other proof, sufficiently also appears on that objective record. As to the
tasing, the Court’s point was (and remains) that the video, the “added wrinkle” Scott
references, “blatantly contradicted” Hanson’s version. The Court will not restate its full
prior analysis, but if Hanson claims the tasing occurred at a time and with participants
that the video inarguably refutes, then Scott counsels the Court against adopting “that
version of the facts for purposes of ruling on a motion for summary judgment.” Scott,
127 S. Ct. at 1776. The Court persists in its view that Hanson’s tale so conflicts with the
video and the other proof that a reasonable jury could not credit it; thus, the depiction
loses its place as the governing version for purposes of qualified immunity analysis.
Plaintiff seems self-aware on this point: “Hanson’s recollection, or lack thereof,
of events makes it difficult to rely strictly on the timeline of when he believed certain
events in fact occurred or trust that he is not confusing or meshing certain events from
different time periods[.]” DE #164-1, at 9. A description wholly distinct in time and
participants, contrary to the plain video, warrants no deference at the qualified immunity
stage. How could a jury accept Plaintiff’s version of the tasing details (to wit, that two
officers pinned him to the wall in the shower room while a third repeatedly tased him),
when the video shows that the event did not happen anywhere near the time he claimed
constitutional violation or clearly established right in the record before the Court, and the
new briefing does not alter the prior conclusions.
(seconds after the pepper spraying, which actually occurred at least 7 minutes prior) and
could not have happened with the roster of jail officers accused (since Hanson was never
in the shower cell with three officers)? Again, the Court sees no basis for relief postjudgment and persists in its analysis.
This is not a partial contradiction, as discussed, e.g., in Coble v. White House, 634
F.3d 865 (6th Cir. 2011). Coble dealt specifically with a distinct, audio-only situation
where the Court of Appeals found a mere “lack of corroborating sound” insufficient to
render summary judgment appropriate. 634 F.3d at 869–70 (emphasis added); see also
Toner v. Village of Elkton, 547 F. App’x 720, 724 (6th Cir. 2013) (characterizing Coble
as addressing situations with an “absence of corroborating evidence on a recording”).
That is wholly different from the situation here, where the Court has viewed video proof
that affirmatively negates the core of Plaintiff’s story. This too is not a case, also unlike
Coble, where the video merely contradicted a certain specified “part of [Plaintiff]’s
testimony[.]” Coble, 634 F.3d at 870. Rather, the video as to Hanson fundamentally
“discredit[s] his entire version of the events.” Id.; cf. Dixon v. Cnty. of Roscommon, 479
F. App’x 680, 682 (6th Cir. 2012) (per curiam) (affirming denial of summary judgment
when the video “neither prove[d] nor disprove[d]” plaintiff’s story). While the precise
action in the shower room is, indeed, not visible, the fundamentals of Hanson’s tale—the
“when” and the “who”—simply cannot coexist with the video record. Cf. Dixon, 479 F.
App’x at 682 (crediting, at the case’s procedural point, plaintiff’s allegation of off-camera
choking, which was possibly consistent with the rest of the record). The Court would
gladly accept non-contradicted allegations by Hanson for purposes of summary
judgment, as the Sixth Circuit did for Dixon’s allegations of choking, but this video
shows beyond peradventure that the tasing Hanson claimed could not have happened as
he described. Simply put, here, the “videotape quite clearly contradicts the version of the
story told by” Hanson, Scott, 127 S. Ct. at 1775—i.e., it “objectively disprove[s]” the
basics of his story. Rowlery v. Genesee Cnty., 641 F. App’x 471, 478 (6th Cir. 2016). The
Court stands by its prior rejection of “such visible fiction.” Scott, 127 S. Ct. at 1776.
For the reasons stated above, the Court GRANTS the Madison County
Defendants permission to file a surreply (DE #174), DENIES Hanson leave to
supplement the record (DE #172), and DENIES Hanson’s motion to amend the Judgment
This the 17th day of July, 2017.
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