Thomas v. University of Tennessee Hospital et al

Filing 70

MEMORANDUM AND ORDER: Plaintiffs motion to amend/revise his complaint and to compel discovery 60 is GRANTED in part only to the extent that Plaintiff shall have fifteen (15) days from the date of entry of this order to file an ame nded complaint. Defendants motion for summary judgment 53 is DENIED without prejudice. Plaintiffs motion to depose through written depositions 49 and for discovery from third parties 50 and 51 are DENIED without prejudice. Defendants motion f or protective order [Doc. 56] is DENIED as moot. The Court will enter an amended scheduling order contemporaneously with this memorandum and order. Signed by District Judge Thomas A Varlan on 6/11/19. (c/m to Matthew A Thomas #559833, TROUSDALE TURNER CORRECTIONAL CENTER, 140 MACON WAY, HARTSVILLE, TN 37074) (ABF)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
MATTHEW A. THOMAS,
Plaintiff,
v.
CHRISTOPHER BUCK,
D. MOORE, and
CHUCK BUSH,
Defendants.

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No.:

3:16-CV-631-TAV-DCP

MEMORANDUM OPINION AND ORDER
This is a pro se prisoner’s civil rights action filed under 42 U.S.C. § 1983. Now
before the Court are Plaintiff’s motion for depositions by written questions [Doc. 49] and
motions for discovery from third parties [Docs. 50 and 51], Defendants’ motion for
summary judgment [Doc. 53] and motion for protective order [Doc. 56], and Plaintiff’s
motion to amend/revise his complaint and to compel discovery [Doc. 60]. The Court will
address these motions in turn.
I.

BACKGROUND
The Court previously summarized the allegations of Plaintiff’s complaint as

follows:
In his Complaint, Plaintiff names as Defendants “Timothy
Hewitt, Public Defender,” “University of Tennessee Hospital”
(hereinafter “UT Hospital”), and several alleged employees of
UT Hospital: “Sonny Booth, dispatch” “Christopher Buck,
security” “f/n/u D. Moore, security” and “Chuck Bush, EDT.”
Plaintiff alleges that, on October 24, 2015, he received
information that his girlfriend, Alice Adams, had been in a car

accident. He went to UT Hospital, where he found Adams in a
hallway; she informed him of her injuries, and he “began to try
to inquire into why Adams was not being treated.” While
talking to Adams, Plaintiff “noticed bruises all over Adams’s
neck and began examining [her] body for other injuries.”
Plaintiff was able to speak with a nurse at 10:30 in the morning,
who stated that Adams was “ready for discharge.” Plaintiff
became “concerned about Adams[’] well-being and
insinuated” that they should leave to go to another hospital; he
also “requested a nurse to speak to her supervisor.”
Buck then approached, stating “you need to calm down,” and
then “grabbed [Plaintiff] by the arm and forcefully escorted
him” to another room “to seclude him from other pedestrians
that were present.”
Plaintiff complied with Buck’s request that he put his hands on
the wall, and Buck then advised Plaintiff that he was “under
arrest for assaulting a female patient by strangulation.”
Plaintiff pleaded with Buck to “speak with Alice and review
the video footage” and stated that there had been “a
misunderstanding.” Buck then “grabbed [Plaintiff’s] right arm
and jammed it up into his body while he ran [Plaintiff’s] head
into the wall.” Plaintiff fell to his knees, realized that his nose
was bleeding, and asked Buck “to please stop hitting him.”
Buck used his knee to hit Plaintiff in the head once more.
Plaintiff “managed to pull himself off of the floor and attempt
to escape.” Before he reached the exit doors, he was tasered
by Moore, then again by Buck, then once again by Moore.
Buck tackled Plaintiff while he was on his knees and held him
to the floor while Moore “continued to energize and deploy his
taser.” Buck handcuffed Plaintiff, and told him: “[you’re]
lucky we didn’t let the K9 loose on you, because this is
personal that wasn’t an option.”
Adams yelled at Buck and Moore that Plaintiff “didn’t do
anything” and asked them not to hurt him. After Adams was
placed into a closet in the hallway, Buck placed Plaintiff on the
hallways floor and “began kicking [him] in the face”; Bush
“came and assisted by holding [Plaintiff to the floor],” while
Adams continued to “frantically plead[]” for Plaintiff’s safety
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from the confines of the closet. Defendants stopped the assault
only when Plaintiff “began choking on his own blood,” at
which point, he was escorted to a holding “cell.”
When questioned by the police, Buck stated that Plaintiff “had
assaulted him and other security officers after he strangled
[Adams] on a stretcher in the hallway”; the other officers
involved gave similar accounts of the incident. Plaintiff
maintains that these accounts were “fabricated,” noting that
Adams “continuously denied” that Plaintiff strangled her and
refused to sign a statement written by Buck regarding the
incident.
Shortly thereafter, Plaintiff was examined by a doctor, who
determined that his injuries—including a wounded lip,
bruising, four broken teeth, and fractures of the jaw, nose, and
various facial bones—were “caused by blunt force trauma.”
After he was treated for his injuries, Plaintiff was taken to
Knox County Jail, where he was “booked on charges ranging
from aggravated assault on public officials [to] strangulation
of Alice Adams.”
Defendant Hewitt was appointed to represent Plaintiff with
respect to these charges. Plaintiff maintains that Hewitt did not
adequately represent him, because he failed to fully investigate
the incident or procure useful discovery materials, and because
he “ratified . . . coercive tactics” used to induce Plaintiff’s
guilty plea, despite the fact that he was aware that the charges
against Plaintiff were based on false statements.
[Doc. 15 p. 3–15 (internal footnotes and citations omitted)]. The Court screened the
complaint and allowed only Plaintiff’s claims for excessive force and state law claims for
aggravated assault against Defendants Buck, Moore, and Bush to proceed in this action,
though it noted that the excessive force claims may be barred by the Supreme Court’s
decision in Heck v. Humphrey, 512 U.S. 477, 486–87 (1994) [Doc. 15 p. 10–12 & n.7, 16–
18, 20].
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II.

MOTION TO AMEND
In his motion to amend his complaint and to compel discovery, Plaintiff requests to

amend his complaint “and state a claim [upon] which relief can be granted” based on his
assertion that he “has stated his claim where [D]efendants do not understand” and also to
compel Defendants to respond to discovery requests [Doc. 60 p. 1]. In their response in
opposition to this motion, Defendants assert that Plaintiff’s motions for discovery were not
timely, that Plaintiff did not include an amended complaint with this motion in violation of
this Court’s local rule, and that any amendment to the complaint would be futile because
Plaintiff’s claims are barred by Heck v. Humphrey, 512 U.S. 477, 486 (1994) for the reasons
set forth fully in their memorandum in support of their motion for summary judgment [Doc.
57].
Under Rule 15 of the Federal Rules of Civil Procedure, a party may amend its
pleading once as a matter of course within 21 days after service, or 21 days after service of
a responsive pleading or service of a motion under Rule 12(b), (e), or (f). Fed. R. Civ. P.
15(a)(1)(A). Outside of this window, a party may only amend its pleading with written
consent of the opposing parties or leave from the Court. Fed. R. Civ. P. 15(a)(1)(B). In
deciding whether to grant leave to amend a pleading, a district court may consider the
following: (1) undue delay in filing; (2) lack of notice to the opposing party; (3) bad faith
by the moving party; (4) failure to cure deficiencies by previous amendments; (5) undue
prejudice to the opposing party; and (6) futility of amendment. Coe v. Bell, 161 F.3d 320,

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341 (6th Cir. 1998) (citing Brooks v. Celeste, 39 F.3d 125, 130 (6th Cir. 1994)). “The court
should freely give leave when justice so requires.” Fed. R. Civ. P. 15(a)(2).
The Court notes that the undisputed facts in the record establish that at least some
of Plaintiff’s allegations of excessive force on the parts of Defendants arise out of the same
events as those underlying Plaintiff’s criminal convictions for the aggravated assault of
Alice Adams and the assaults of Defendants Buck and Bush [Doc. 15 p. 3–15; Doc. 53-1
p. 17–19].1 Regardless, as the Court cannot determine at this time that allowing Plaintiff
to file an amendment would be futile or otherwise improper, Plaintiff’s motion to
amend/revise his complaint and to compel discovery [Doc. 60] will be GRANTED in part
only to the extent that Plaintiff will have fifteen (15) days from the date of entry of this
order to file an amended complaint. Accordingly, Defendants’ motion for summary
judgment [Doc. 53] will be DENIED without prejudice and the Court will enter an
amended scheduling order contemporaneously with this order. Also, the Court will address
all discovery issues below.

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The Court further notes that while Plaintiff asserts in his second (and untimely) response
in opposition to Defendants’ motion for summary judgment that his complaint also alleges that
Defendants used excessive force against him after he had handcuffs on and was under control and
that those claims therefore would not be barred by Heck [Doc. 65 p. 2–4], no verified and/or sworn
evidence in the record suggests that any Defendant used excessive force against Plaintiff after
Plaintiff had stopped resisting arrest such that any Defendant may be liable for excessive force
despite Plaintiff’s underlying criminal convictions for assault. See 28 U.S.C. § 1746; Dole v. Elliot
Travel & Tours, Inc., 942 F.2d 962, 968–69 (6th Cir. 1991) (providing that a court may not
consider unsworn statements when ruling on a motion for summary judgment); Hayward v.
Cleveland Clinic Found., 759 F.3d 601, 611–12 (6th Cir. 2014) (noting that in determining whether
Heck bars an excessive force claim, the issue is whether the defendant’s alleged use of excessive
force occurred “‘after the suspect ceases resisting arrest’”).
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III.

DISCOVERY MOTIONS
As set forth above, Plaintiff has filed a motion to depose Defendants Buck and

Moore and former Defendant Booth by written questions [Doc. 49] and two motions
seeking to obtain security footage and other discovery from third parties [Docs. 50 and 51].
In response, Defendants have filed a motion for protective order [Doc. 56] and a
memorandum in support thereof [Doc. 57] in which they note that Plaintiff filed these
motions too late based upon the scheduling order’s deadline for all discovery methods,
including motions relating to discovery, and that they filed a motion for summary judgment
asserting that Plaintiff’s claims are barred by Heck two days after the Clerk docketed these
discovery motions [Doc. 57 p. 3–6]. Thus, they assert that Plaintiff’s motions are untimely
and/or futile in light of their motion for summary judgment and request that the Court enter
an order forbidding Plaintiff from obtaining discovery and providing that Defendants are
not required to respond to Plaintiff’s discovery requests [Id. at 6].
First, it is apparent from Plaintiff’s motion to depose by written questions that while
the Court screened the complaint and allowed only Plaintiff’s claims for excessive force
and state law claims for aggravated assault against Defendants Buck, Moore, and Bush to
proceed, Plaintiff believes that Sonny Booth is still a Defendant in this action [Doc. 49 p.
1 (referring to “Defendant Sonny Booth”)]. Moreover, as Defendants correctly point out,
while Plaintiff seeks discovery from third parties in his other motions [Docs. 50 and 51],
he has not requested issuance of subpoenas. Further, even if Plaintiff had requested
subpoenas, it is unclear whether Plaintiff has sought to obtain the requested information
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and/or video footage or documents from Defendants by sending them interrogatories and/or
requests to produce in accordance with Rules 33 and 34 of the Federal Rules of Civil
Procedure and has been unable to do so. Thus, any request for subpoenas for this
information from third parties would be premature. Moreover, this Court’s local rule
provides that parties generally should not file interrogatories, requests for production and
inspection, requests for admission, and responses to discovery requests with the Court.
E.D. Tenn. LR 5.3.

Also, while Defendants seek a protective order based on the

untimeliness of Plaintiff’s discovery motions and their pending motion for summary
judgment, those arguments are now moot, as the Court will enter an amended scheduling
order and deny their motion for summary judgment without prejudice for the reasons set
forth above.
Thus, Plaintiff’s motion to depose through written depositions [Doc. 49] and for
discovery from third parties [Docs. 50 and 51] will be DENIED without prejudice,
Defendants’ motion for protective order [Doc. 56] will be DENIED as moot, and the
parties shall pursue discovery in accordance with the amended scheduling order entered
contemporaneously herewith.
IV.

CONCLUSION
For the reasons set forth above:
1.

Plaintiff’s motion to amend/revise his complaint and to compel discovery
[Doc. 60] is GRANTED in part only to the extent that Plaintiff shall have
fifteen (15) days from the date of entry of this order to file an amended
complaint;

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2.

Plaintiff is NOTIFIED that any amended complaint Plaintiff files will
completely replace the previous complaint;

3.

Plaintiff is also NOTIFIED that if he fails to timely comply with this order,
this action will be dismissed for failure to prosecute and to follow the orders
of this Court;

4.

Defendants’ motion for summary judgment [Doc. 53] is DENIED without
prejudice;

5.

Plaintiff’s motion to depose through written depositions [Doc. 49] and for
discovery from third parties [Docs. 50 and 51] are DENIED without
prejudice;

6.

Defendants’ motion for protective order [Doc. 56] is DENIED as moot,

7.

The Court will enter an amended scheduling order contemporaneously with
this memorandum and order; and

8.

Plaintiff is ORDERED to immediately inform the Court and Defendants or
their counsel of record of any address changes in writing. Pursuant to Local
Rule 83.13, it is the duty of a pro se party to promptly notify the Clerk and
the other parties to the proceedings of any change in his or her address, to
monitor the progress of the case, and to prosecute or defend the action
diligently. E.D. Tenn. L.R. 83.13. Failure to provide a correct address to
this Court within fourteen (14) days of any change in address may result in
the dismissal of this action.

ENTER:

s/ Thomas A. Varlan
UNITED STATES DISTRICT JUDGE

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