McCormick v. Nurse Kendra et al
Filing
268
MEMORANDUM OPINION AND ORDER Signed by Senior Judge Joseph H. McKinley, Jr on 7/9/2019 denying 246 Motion for Reconsideration. cc: Counsel(JM)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
OWENSBORO DIVISION
CIVIL ACTION NO: 4:16-CV-00017-JHM
DAMON McCORMICK
PLAINTIFF
V.
HENDERSON COUNTY DETENTION CENTER, et al.
DEFENDANTS
MEMORANDUM OPINION AND ORDER
This matter is before the Court on Defendants’ Motion for Reconsideration [DN 246].
Fully briefed, this matter is ripe for review. For the following reasons, the Defendants’ Motion
for Reconsideration is DENIED.
I. BACKGROUND
Plaintiff Damon McCormick brought this lawsuit for alleged wrongs he suffered while
detained at the Henderson County Detention Center (“HCDC”). The Defendants filed motions
[DNs 229 & 233] asking the court to grant summary judgment in their favor on all McCormick’s
claims, which this Court granted in part and denied in part in a Memorandum Opinion and Order
dated January 29, 2019 [DN 244]. Specifically, the Court refused to grant summary judgment to
Lieutenant Cody Buckman, Major William Payne, Sergeant Jonathan Parrish, and Unknown
HCDC Defendants (collectively, the “HCDC Defendants”) on McCormick’s claim for assault and
battery, finding there was a dispute of material facts between the evidence presented by the HCDC
Defendants and the story told by McCormick in his Verified Response.
Now, the HCDC Defendants ask the Court to reconsider its decision. They argue that the
facts presented in McCormick’s Verified Response should not have been considered by the Court
at the summary judgment stage because the Verified Response does not meet the requirements to
be included in the evidentiary record.
After the HCDC Defendants filed the present Motion for Reconsideration regarding the
assault and battery claim, they filed a second Motion for Reconsideration [DN 250] related to the
Court’s decision to appoint counsel to McCormick. After a teleconference, Magistrate Judge
Brennenstuhl directed, “In the event Mr. Wilkey remains as Plaintiff’s counsel, Plaintiff will file
a response to [the motion to reconsider summary judgment] within 7 days on the ruling of [the
motion to reconsider appointment of counsel].” (Order [DN 258] at 2). On May 7, 2019, the Court
denied the HCDC Defendants’ request to reconsider the appointment of Plaintiff’s counsel. At
that point, McCormick’s counsel should have filed a response to the present motion within seven
days but failed to do so. Instead, McCormick himself submitted a handwritten document stating
his objections to the present Motion for Reconsideration. However, because McCormick is
represented by counsel, it is not appropriate for the Court to consider submission from McCormick
directly. Therefore, the Court will rule on the Motion for Reconsideration solely based on the
original filing and without the benefit of a response from McCormick.
II. STANDARD OF REVIEW
Motions to alter or amend a judgment may be “made for one of three reasons: (1) An
intervening change of controlling law; (2) Evidence not previously available has become available;
or (3) It is necessary to correct a clear error of law or prevent manifest injustice.” United States v.
Jarnigan, No. 3:08-CR-7, 2008 WL 5248172, at *2 (E.D. Tenn. Dec. 17, 2008) (citing Fed. R.
Civ. P. 59(e); Helton v. ACS Grp., 964 F. Supp. 1175, 1182 (E.D. Tenn. 1997)); see GenCrop, Inc.
v. Am. Int’l Underwriters, 178 F.3d 804, 834 (6th Cir. 1999). Rule 59(e) is not intended to be used
to “‘relitigate issues previously considered’ or to ‘submit evidence which in the exercise of
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reasonable diligence, could have been submitted before.’” United States v. Abernathy, No. 0820103, 2009 WL 55011, at *1 (E.D. Mich. Jan. 7, 2009) (citation omitted); see also Elec. Ins. Co.
v. Freudenberg-Nok, Gen P’ship, 487 F. Supp. 2d 894, 902 (W.D. Ky. 2007) (“Such motions are
not an opportunity for the losing party to offer additional arguments in support of its position.”).
Motions to alter or amend judgments under Rule 59(e) “are extraordinary and sparingly granted.”
Marshall v. Johnson, No. 3:07-CV-171, 2007 WL 1175046, at *2 (W.D. Ky. Apr. 19. 2007).
III. DISCUSSION
The HCDC Defendants contend that it was clear error of law for the Court to consider
information put forth in McCormick’s Verified Response when ruling on their Motion for
Summary Judgment. Although the HCDC Defendants admit that “a verified pleading may in some
circumstances serve as an affidavit for summary judgment purposes,” they argue that
McCormick’s Verified Response cannot serve as an affidavit because it does not “strictly adhere
to the requirements of a traditional affidavit.” (HCDC Defs.’ Mot. for Reconsideration [DN 246]
at 2). The Court disagrees.
Fed. R. Civ. P. 56(c)(4) states, “An affidavit or declaration used to support or oppose a
motion must be made on personal knowledge, set out facts that would be admissible in evidence,
and show that the affiant or declarant is competent to testify on the matters stated.” Allegations
within a verified pleading may be treated the same as an affidavit if they comply with these
requirements; otherwise, the Court should not treat the contents of verified pleadings the same as
evidence when ruling on summary judgment.
As guidance on this principle, the HCDC
Defendants direct the Court’s attention to the case of Totman v. Louisville Jefferson Co. Metro
Gov’t, 391 Fed. App’x 454 (6th Cir. 2010). There, the Sixth Circuit considered whether facts
presented in a Verified Complaint could be evidence. At the summary judgment stage, the district
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court considered the plaintiff’s excessive force allegations from his Verified Complaint. On
appeal, the Sixth Circuit found that it was error for the district court to treat the allegations as
evidence because the Verified Complaint did not meet the standard set forth in Rule 56.
Specifically, the court took issue with incorporating allegations that were merely based on the
plaintiff’s beliefs. With regards to one defendant, Officer Hornback, the plaintiff admitted in a
deposition that while he knew Officer Hornback was present at the time of the excessive force, he
did not know if Officer Hornback participated in the attack. For this reason, the Court found that
the plaintiff’s “allegation in his complaint that Officer Hornback beat him is therefore nothing
more than speculation, and speculation is not admissible evidence.” Id. at 464. Because this did
not meet the Rule 56 evidentiary standard, the Sixth Circuit ruled that it was error for the Court to
consider the plaintiff’s speculation and belief as evidence.
Bearing in mind the standards of Rule 56, the Court finds that in this case, McCormick’s
Verified Response should be given the same weight as an affidavit. Within his Verified Response
to the HCDC Defendants’ Motion for Summary Judgment, McCormick presents his version of the
events that led to him being pepper sprayed on three occasions during his stay at HCDC. In
describing the three instances of alleged excessive force, McCormick revealed what he personally
experienced. For example, on the day of the first pepper spraying, McCormick claims, “Four (4)
employees entered his cell and doused him with pepper spray.” (Resp. at 7). McCormick’s
testimony about events that took place in his prison cell are certainly based on personal knowledge,
admissible in evidence, and matters on which he is competent to testify. Unlike the prisoner in
Totman, McCormick’s claims are not based on speculation or beliefs but rather, McCormick
recounts the dispositive facts1 as he experienced them. For this reason, although they are not
There is one allegation within McCormick’s Verified Response that is possibly based on speculation. In describing
the events leading to the second incident of pepper spray, McCormick claims, “Gibson retaliated by instructing
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presented in a formal affidavit, McCormick’s Verified Response complies with the requirements
of Rule 56. The Court concludes it did not commit clear error in accepting the evidence presented
and finding a genuine dispute of material facts to deny summary judgment to the HCDC
Defendants.
IV. CONCLUSION
IT IS HEREBY ORDERED that the HCDC Defendants’ Motion for Reconsideration
[DN 246] is DENIED.
July 9, 2019
cc: counsel of record
Defendant Payne to pepper spray Plaintiff.” (Resp. at 7). McCormick does not claim that he personally witnessed
Gibson’s instructions to retaliate but nonetheless, this detail is immaterial to finding a genuine dispute of material
facts on which to deny summary judgment.
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