Peppers et al v. Washington County, Tennessee et al

Filing 242

MEMORANDUM OPINION AND ORDER: Denying 227 MOTION for Reconsideration for use of deposition testimony and wrongful death claim filed by Joe Peppers, Natasha Peppers and Granting 226 MOTION for Reconsideration re 47 Order on Motion for Summary Judgment, filed by Jason Lowe, Corrections Officer Draper, Corrections Officer Martin, Corrections Officer Cornett, Corrections Officer Richards, Corrections Officer Garwin. The plaintiff's motion is DENI ED and the defendant's motion is GRANTED. Accordingly, the only claim that remains is the common law claim against the individual defendants. However, this claim was not included in the Final Pretrial Order, which supplants the pleadings. Therefore, no claims remain and a separate judgment shall enter. See Order for details. Signed by District Judge J Ronnie Greer on 3/7/2016. (LMC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT GREENEVILLE

JOE PEPPERS and NATASHA PEPPERS,
As surviving natural parents and next of kin of
STEWART PEPPERS, deceased,

)
)
)
)
Plaintiff,
)
)
v.
)
)
WASHINGTON COUNTY, TENNESSEE, et al., )
)
Defendants.
)

No. 2:13-CV-180

MEMORANDUM OPINION AND ORDER
The plaintiffs filed this section 1983 action and allege the defendants violated the
Fourteenth Amendment rights of their son, who was a pretrial detainee, by using excessive force,
resulting in his death. The individual capacity defendants moved for summary judgment, [Doc.
15], based upon qualified immunity. The Court denied the motion, for there existed genuine
issues of material facts taking the facts in the light most favorable to the plaintiff. [Doc. 47].
Then, the parties filed several motions regarding Defendant Washington County, Tennessee.
First, Defendant Washington County filed a Motion for Summary Judgment, [Doc. 71]. The
plaintiffs responded, [Doc. 76]. Based on assertions made in the Response, all defendants filed a
Second Motion for Summary Judgment, [Doc. 85], once they received leave from this Court.
Without seeking leave from this Court, the plaintiffs filed their own Motion for Summary
Judgment as part of their Response to defendants’ Second Motion for Summary Judgment, [Doc.
92].

The Court granted both of defendants’ motions, [Docs. 71 and 85], and denied the

plaintiffs’ motion, [Doc. 92]. Due to these rulings, the only remaining claims are excessive force
that did not result in death and assault asserted against the officers.
In preparation for the trial, the plaintiffs filed a “Motion to Designate Deposition
Testimony,” [Doc. 200]. The defendants opposed the motion, [Doc. 203], on two main grounds:
1. The deadline for designating depositions had passed, and 2. The testimony was inadmissible
hearsay. The Court denied the motion because the testimony is hearsay pursuant to Federal Rule
of Evidence 804(b)(1), [Doc. 225].1
Both parties have now filed Motions to Reconsider, [Docs. 226 and 227]. The defendants
move the Court to reconsider its decision regarding qualified immunity, and the plaintiffs move
the Court to reconsider the denial of the wrongful death claim and the decision regarding the use
of the deposition testimony.
The Federal Rules of Civil Procedure do not explicitly address motions for
reconsideration of interlocutory orders. The Court’s power to reconsider exists under federal
common law, see, e.g., City of Los Angeles v. Santa Monica Baykeeper, 254 F.3d 882, 886 (9th
Cir. 2001), and there is additional support in Federal Rule of Civil Procedure 54(b). See
Fayetteville v. Commercial Builders, Inc., 936 F.2d 1462, 1469-70 (4th Cir. 1991) (approving of
Rule 54(b) as a proper procedural vehicle for bringing motions to reconsider interlocutory
orders). Under Rule 54(b), an order that determines fewer than all the claims or rights of the
parties does not terminate the action, and the order is “subject to revision at any time before the
entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.”
Again, this Court has authority both under common law and Rule 54(b) to reconsider
interlocutory orders and to reopen any part of a case before entry of final judgment. See Mallory
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The facts underlying all of these motions are set forth in more detail in the Court’s Memorandum Opinions, [Docs.
47, 185 and 225] and are incorporated herewith.

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v. Eyrich, 922 F.2d 1273, 1282 (6th Cir. 1991). This authority allows district courts “to afford
such relief from [interlocutory orders] as justice requires.” Citibank N.A. v. Fed. Deposit Ins.
Corp., 857 F.Supp. 976, 981 (D. D.C. 1994); see also Melancon v. Texaco, Inc., 659 F.2d 551,
553 (5th Cir. 1981). Traditionally, courts will find justification for reconsidering interlocutory
orders when there is (1) an intervening change of controlling law; (2) new evidence available; or
(3) a need to correct a clear error or prevent manifest injustice. Reich v. Hall Holding Co., 990
F. Supp. 955, 965 (N.D. Ohio 1998). Neither party addresses the issues raised in their motions
via this standard. The Court will discuss each motion in turn, starting with the plaintiffs’ motion.
I. WRONGFUL DEATH CLAIM
The defendants moved for summary judgment and argued that judicial estoppel bars the
plaintiffs from asserting inconsistent theories, i.e. that the defendant officers “intentionally
killed” Peppers, suing them for “wrongful death,” [Doc. 1, ¶ 27], and that the “one and only
cause of the decedent’s demise” was asphyxiation from the use of the restraint chair and spit
hood, [Doc. 79, PageID #: 988]. The Court agreed with the defendants.
To review, the plaintiffs Complaint alleged the following:
15. At the point that Peppers was shouting obscenities at
the jail personnel, Defendant Lowe, accompanied by Defendants
Martin, Draper, Cornett, Garmin, and Richards entered the cell
occupied by the Peppers and began to beat Peppers.
16. After the initial beating, Peppers was placed in and
strapped to a restraint chair that prevented Peppers from being able
to move, at which point, Defendant Lowe continued to beat
Peppers, by striking him repeatedly in the face with his fists.
17. Over the course of the beating, chemical spray and
electrical tasers were implemented and used. The duration of this
incident continued for approximately twenty minutes.
18. At the conclusion of the beating, the Defendants laid
Peppers on the floor and began to perform CPR that appeared to be
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unsuccessful. At which point, the Defendants called the Nurse,
who in turned called for Emergency Medical Technicians (EMTs).
....
27. Plaintiffs aver that their son was intentionally killed
by Defendants Lowe, Martin, Draper, Cornett, Garmin, and
Richards either individually or in concert.
[Doc. 1, PageID #: 9 at ¶ 27]. On October 23, 2015, the plaintiffs asked Defendant Washington
County to admit to the following additional material fact:
9. That the Defendant corrections officers’ use of the
restraint chair and spit hood caused the decedent to asphyxiate and
was the one and only cause of the decedent’s demise.
(Affidavit of L. J. Dragovic, Doc. 66-1) [Doc. 79, PageID #: 988]. The plaintiffs referred the
Court to their expert’s affidavit, which they attached in support of a motion in limine and not
summary judgment, to support this statement of “undisputed material fact.” That affidavit states
in part,
8. Cause of Death represents demonstrable abnormal anatomic
findings in the body and/or on the body, indicative of a
pathophysiologic mechanism of death and in this particular case
that mechanism is asphyxiation due the restraining the decedent in
the restraint chair and use spit hood by the corrections officers
involved.
9. These physical circumstances of the applied physical restraint
brought about a combination of perilous factors of blocking the
openings of the airways and simultaneously applying pressure on
the body as a result of passive and active restraint that exceeds the
threshold of allowing adequate expansion of the lungs and
adequate oxygenation blood to necessary to maintaining vital
functions of the human body.
10. The gross and microscopic appearance of the decedent's lungs
leave no doubt that asphyxia resulting from the physical force of
the restraint combined with the spit hood applied to the face was
the one and only causative mechanism of Mr. Pepper's demise.

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On October 23, 2015, the plaintiffs filed a Memorandum Brief in Response to
Washington County’s Motion for Summary Judgment that states in pertinent part:
The Plaintiffs, in the instant case, have shown that through
the testimony of Dr. L. J. Dragovic, that the cause of death for
the decedent was asphyxiation caused by and through the use of
the Restraint Chair. . . . In the area of training as it relates to the
Restraint Chair, the Defendant Washington County, Tennessee has
left the Defendant corrections officers without clear direction with
regard to the implementation of the device that is specifically the
cause of the Plaintiffs’ decedent’s death.
[Doc. 78, PageID #: 984-85].
The plaintiffs further stated:
1. The Plaintiffs admit that paragraph nine of the compliant is
accurately stated by the Defendant, however Plaintiffs’ would state
further that the actual cause of death at the time of filing said
complaint was actually unknown to all parties. Plaintiffs therefore
do not abandon the allegation contained in paragraph nine, and
continue to maintain their cause of action for the constitutional
violations that have been previously submitted.
2. The Plaintiffs admit that Dr. Dragovic opines that the cause of
death is indeed asphyxiation from being restrained in the restraint
chair while wearing the spit hood, however the Plaintiffs do not
abandon the fact that the decedent was beaten while strapped in the
restraint chair, which is a clear violation to the decedent’s clearly
established constitutional rights.
3. The Plaintiffs admit that in their brief filed on October 23, 2015,
that they have submitted through their expert that the decedents
asphyxiation was caused by the restraint chair, and that the officer
lacked clear direction with regard to the use of the restraint chair,
however this fact does not eliminate the constitutional violations
perpetrated upon the decedent by beating him while restrained in
the restraint chair or otherwise (Deposition of Shawn Dorsey, page
216, line 5-25, page 217 – 241).
[Doc. 93, pgs. 1-2].
The plaintiffs further argued vaguely in their Response, “Wherefore the Plaintiffs contend
that the decedent’s death and that the Plaintiffs beating are distinguishable and are separate and
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distinct violations of the decedent’s constitutional rights and have been plead as such through
notice pleadings regarding facts known at the time of filing of the original complaint. Plaintiff
still contends that the discovery of the actual cause death comports to the original pleadings and
as such Defendants’ Second Motion for Summary Judgment should be denied.”
The Court concluded from these statements that it appeared that the plaintiffs no longer
assert a wrongful death action against the officers. Furthermore, the Court stated that the
plaintiffs cannot assert that Peppers was intentionally beaten to death by the officers and that he
died of asphyxiation from a failure to train in the use of the restraint chair, for these are
inconsistent causes of death. Based on the plaintiffs’ responses and on the expert testimony upon
which they have relied, the Court concluded that their theory of the case is that the officers used
excessive force on Peppers (which did not cause his death) in violation of his constitutional
rights and that he died from asphyxiation from the improper use of the restraint chair and spit
hood which was a result of a failure to train by the County.
To be frank, this Court has had difficulty from the onset determining plaintiffs’ precise
allegations and arguments in this case. The Complaint used vague and conclusory language. It
uses passive voice to allege “their son was intentionally killed by [the officers].” It states no
factual assertions as to how this intentional killing was accomplished. From the facts asserted
elsewhere in the Complaint, the only conclusion is that the allegation is that he was beaten to
death. The use of the spit hood was not even mentioned. There are no facts as to how Peppers
was restrained, only that he was placed in and strapped into a restraint chair that prevented
movement. There is no allegation that this restraint caused the death. Only after their expert
issued his opinion as to the cause of death did the plaintiffs start arguing that the death was not

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due to blunt force trauma but instead, according to the expert’s opinion, the “cause of death is
indeed asphyxiation from being restrained in the restraint chair while wearing the spit hood.”
The plaintiffs’ responsive arguments to the defendants’ motion for summary judgment on
this issue are not clear. The gist of the argument is that the notice pleading requirements have
been satisfied, and all theories are viable. This is not a situation where the plaintiffs have pled
alternatively. This is a situation where they plead vague and conclusory allegations and have
asserted different theories depending upon how the proof developed and what the opposing side
argued. The allegations must be supported by facts, and the arguments must point the Court to
these facts. Here, the facts alleged as to wrongful death were that the plaintiff was beaten to
death. The plaintiffs did not move to amend their Complaint to clearly assert that the wrongful
death was caused by anything other than beating.
Similarly, only after the defendants filed their second and third motions for summary
judgment did the plaintiffs assert more specific theories as to failure to train.
Complaint was vague and conclusory.

Again, the

It stated in paragraph 25, “Defendant Washington

County, Tennessee was deliberately indifferent to the training of jail staff relative to the use of
force and treatment of inmates.” There are no factual allegations to support this claim other than
the general facts listed elsewhere in the Complaint. Those facts never mention any training or
lack thereof. Again, only after their expert opined as to the cause of death did they assert the
County failed to train the officers regarding the use of the restraint chair and spit hood. It was
only after the defendants asserted their cause of death, excited delirium, that the plaintiffs once
again changed their theory to assert an additional theory that the County failed to train the
officers on the condition of excited delirium.

As to all of these theories as well, the plaintiffs

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never moved to amend their Complaint to supplement with facts or to bring their allegations
beyond mere vague and conclusory claims.
Now, the plaintiffs fail to clarify this wrongful death issue in their motion to reconsider.
The plaintiffs seem to argue that the Court should reconsider its prior ruling based on newly
discovered evidence. They appear to argue that Dorsey’s affidavit and deposition testimony in
combination with Eric Bradford’s deposition testimony consistently establish the facts necessary
to support a wrongful death allegation based upon the use of the restraint chair and spit hood.
First, this Court notes that Dorsey’s deposition testimony has been excluded. Although the
plaintiffs move the Court to reconsider the exclusion, for the reasons set forth below, this Court
affirms its prior ruling. Second, Eric Bradford’s affidavit was available on April 15, 2015, well
before the filing of defendants’ second and third motions for summary judgment and before
plaintiffs’ motion for summary judgment. The plaintiffs chose not to rely upon it and did not
submit it to support their positions on the motions. It is true that Bradford’s deposition was not
taken until February 5, 2016. However, the information contained in the affidavit cannot be
considered newly discovered. This Court has thoroughly read both and so concludes.
If the plaintiffs’ argument is that the Court should reconsider its prior ruling because of a
need to correct a clear error or prevent manifest injustice, then this argument, too, fails. The
plaintiffs have not stated how the prior ruling was error. They have not asserted how these
factual assertions do not directly contradict earlier assertions made. They cannot claim both that
Stewart Peppers was beaten to death and claim that the use of the restraint chair and spit hood by
the defendants caused his death. The allegations of wrongful death in the Complaint were based
upon the factual assertions that he was beaten to death. That is the only conclusion that can be
drawn from the allegations in the Complaint. The plaintiffs have no expert proof of this claim.
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Peppers did not die of blunt force trauma. Peppers changed their factual allegations as to cause
of death because of their expert’s opinion. These two are inconsistent and judicial estoppel bars
the wrongful death claim.
In addition, the Court notes that the record is devoid of admissible evidence to support a
wrongful death claim due to the use of the restraint chair and spit hood even if that cause of
action were consistent with wrongful death due to beating.
testimony is inadmissible.

Again, Dorsey’s deposition

Bradford’s testimony never mentions the use of a spit hood.

Moreover, Bradford testifies that he never saw Peppers placed in or restrained in the restraint
chair. He can only testify that at one point the restraint chair was taken into Pepper’s cell and
sometime thereafter it was removed from the cell.
II. DORSEY TESTIMONY
The plaintiffs also ask the Court to reconsider its ruling that Dorsey’s deposition
testimony is inadmissible hearsay.

The plaintiffs fail to argue that the ruling should be

reconsidered because of an intervening change of controlling law, new evidence available, or a
need to correct a clear error or prevent manifest injustice. The Court assumes the plaintiffs’
argument is that the Bradford deposition is new evidence, but this is not the case. In addition,
even if Bradford’s testimony were consistent with portions of Dorsey’s testimony, 2 it does not
change the fact that the defendants lacked a full opportunity to cross-examine Dorsey on a
statement that directly calls into question the reliability of his prior statement. Moreover, the
Court has reviewed all of the plaintiffs’ arguments in this regard and the defendants’ responses.
The plaintiffs’ arguments are not well taken.

2

The critical issue in the case is whether the defendants used excessive force while Peppers was resisting (or not
resisting). Dorsey’s testimony is the only evidence the plaintiffs have to support the allegation that Peppers was not
resisting. Bradford’s testimony clearly states he cannot testify as to this critical fact because he could not see the
altercation. Thus, his testimony cannot be consistent or bolster Dorsey’s testimony on this critical fact.

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III. QUALIFIED IMMUNITY
The defendants have moved the Court to reconsider its prior ruling that there was an issue
of fact as to whether the defendants were entitled to qualified immunity. The defendants fail to
argue that the Court should reconsider due to an intervening change of controlling law, new
evidence available, or a need to correct a clear error or prevent manifest injustice. The Court
assumes it is to prevent manifest injustice.
In sum, the plaintiffs responded to the defendants’ motion for summary judgment based
on qualified immunity with the Affidavit of Shawn Dorsey. Because this Court had to take the
facts in the light most favorable to the plaintiffs, this Court concluded that Dorsey’s affidavit
created a genuine issue of fact as to whether the defendants violated Peppers’s constitutional
rights by using force even though he was not resisting. This affidavit was the only testimony that
Peppers did not resist officers and that they used force anyway.
Dorsey testified at a discovery deposition, but by no fault of the plaintiffs, he refused to
testify at a deposition for proof. This Court has since held that this deposition testimony is
inadmissible hearsay. Thus, the only proof in the record is the prior affidavit and a newly
submitted deposition and affidavit attached thereto from Bradford.
As this Court previously stated, the Bradford testimony fails to address the critical issue
in the case for qualified immunity purposes, i.e. whether Peppers was resisting at the time force
was used. Therefore, Dorsey’s affidavit is the only proof in the record to counter defendants’
claims that Peppers was resisting.
The Sixth Circuit has stated:
The submissions by a party opposing a motion for summary
judgment need not themselves be in a form that is admissible at
trial. Otherwise, affidavits themselves, albeit made on personal
knowledge of the affiant, may not suffice, since they are out-of10

court statements and might not be admissible at trial. However, the
party opposing summary judgment must show that she can make
good on the promise of the pleadings by laying out enough
evidence that will be admissible at trial to demonstrate that a
genuine issue on a material fact exists, and that a trial is necessary.
Such “‘evidence submitted in opposition to a motion for summary
judgment must be admissible.’”
Alexander v. CareSource, 576 F.3d 551, 558-59 (6th Cir. 2009) (citations omitted).
In Bortell v. Eli Lilly & Co., 406 F. Supp. 2d 1, 8-9 (D.D.C. 2005), the court ruled that
affidavits from two people who were unavailable to testify at trial did not meet Rule 56(e)’s
requirements. Since they were unavailable, the plaintiff in that case had not “shown that the
affiants are ‘competent to testify to the matters contained’” in their affidavits. Id. (citing Fed. R.
Evid. 56(e)). As such, without their availability at trial to “undergo cross-examination either at
trial or in a pre-trial deposition,” then the affidavits were hearsay. Id. In addition, that court held
that the residual exception to Evidence Rule 807 did not apply.
The Court agrees with the Bortell court’s reasoning. In addition, here, this Court has
ruled that the defendants’ did not have a full opportunity to cross-examine Dorsey at the previous
deposition and statements made thereafter directly call into question the reliability of the
previous testimony. It certainly follows that they did not have to opportunity to cross-examine
him based on the information contained in the affidavit. The affidavit may not be considered on
this motion to reconsider the Court’s ruling on qualified immunity. See Davis v. Kendrick, No.
14-12664, 2015 WL 6470877, at *6 (E.D. Mich. Oct. 27, 2015) (excluding proffered testimony
from consideration at the summary judgment stage because it could not be placed into any form
that would be admissible at trial); Bouriez v. Carnegie Mellon Univ., No. CIV.A. 02-2104, 2005
WL 2106582, at *8 (W.D. Pa. Aug. 26, 2005) (“Hearsay evidence produced in an affidavit
opposing summary judgment may be considered if the out-of-court declarant could later present
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that evidence through direct testimony. . . . [T]he mere possibility that hearsay statement will be
presented in form of admissible evidence at trial does not warrant consideration of hearsay
evidence at summary judgment stage.”).
Because the affidavit may not be considered, the plaintiffs have failed to present any
evidence to create a genuine issue of fact for trial as to the excessive force claim.3 As such, the
motion to reconsider is GRANTED, and the defendants’ summary judgment motion on qualified
immunity is GRANTED.
IV. CONCLUSION
For the reasons set forth above, the plaintiffs’ motion is DENIED, [Doc. 227], and the
defendants’ motion is GRANTED, [Doc. 226]. Accordingly, the only claim that remains is the
common law assault claim against the individual defendants. However, this claim was not
included in the Final Pretrial Order, which supplants the pleadings. Therefore, no claims remain
and a separate judgment shall enter.4
ENTER:
s/J. RONNIE GREER
UNITED STATES DISTRICT JUDGE

3

The plaintiffs’ proposed circumstantial evidence is not sufficient to create a genuine issue of fact. The present case
is similar to Burdine v. Sandusky County, Ohio, 524 Fed. App’x 164, 169 (6th Cir. 2013). In Burdine, an arrestee’s
parents filed a section 1983 suit against the county, city and officers for excessive force. Id. at 164. The plaintiffs’
expert opined that the cause of death was asphyxia due to the police compressing the neck and back of the deceased
while he was being restrained by police and not caused by excited delirium. Id. at 167. The Court held that this
opinion testimony does not raise a genuine issue of material fact when it relied on the expert’s interpretation of other
evidence to reach the conclusion, namely that the deceased was unconscious when EMTs arrived at the jail. Id. at
169. No other evidence in the record supported the belief that the deceased was unconscious at that point. Id.
Likewise, the plaintiffs’ expert’s testimony in this case is not sufficient to create a genuine issue of material
fact when there is no other evidence in the record that the officers were compressing Stuart Peppers in a way to
cause asphyxiation while Stuart Peppers was not resisting.
4
Due to this ruling, the defendants’ motion in limine, [Doc. 224], is DENIED AS MOOT.

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