Thomas v. University of Tennessee Hospital et al
Filing
89
MEMORANDUM AND OPINION as set forth in following order. Signed by District Judge Thomas A Varlan on 11/22/19. (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,
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Plaintiff,
v.
CHRISTOPHER BUCK,
D. MOORE, and
CHUCK BUSH,
Defendants.
No.
3:16-CV-631-TAV-DCP
MEMORANDUM OPINION
On October 24, 2015, Plaintiff visited his girlfriend, Alice Adams, who had been
injured in a car wreck that afternoon, at the hospital where Defendants worked [Doc. 76 p.
4–6]. During this visit, Plaintiff alleges, he began to inquire as to why Adams was not
being treated and became concerned about her well-being [Id. at 5–6]. He also alleges that
he noticed bruising around her neck [Id. at 5]. Plaintiff alleges that he told Adams that they
could go to another hospital for treatment [Id. at 6]. Then, Plaintiff alleges, Defendants
forcefully escorted Plaintiff to another area of the hospital, where, despite Plaintiff’s
compliance with their orders, Defendants attacked him, asserting that he had assaulted a
female patient by strangulation [Id.].
Plaintiff alleges that he insisted there was a
misunderstanding and attempted to escape Defendants’ “assaults” [Id.]. He alleges that he
was then tased before being handcuffed and attacked again [Id.].
Plaintiff later pled guilty to three counts of assault arising out of his attacks on
Adams and two Defendants during this hospital visit [Docs. 53-1, 53-2]. In doing so,
Plaintiff admitted that he “was under the influence of alcohol” at the time and that the
factual basis for Plaintiff’s guilty plea, to which Plaintiff did not object or add any
information, established that Plaintiff yelled at and began strangling Adams and then
assaulted Defendant Buck “by striking [him] in the left side of his face” and Defendant
Bush “by pushing [him] in the lower back and side of his hip” when they attempted to
intervene [Doc. 53-1 p. 17–19].
Plaintiff, now a prisoner of the Tennessee Department of Correction, filed a
complaint for violation of his civil rights pursuant to 42 U.S.C. § 1983 arising out of these
events that is proceeding as to his excessive force and state law aggravated assault claims
[Doc. 15 p. 20]. Now before the Court is Plaintiff’s motion to compel discovery [Doc. 78].
Defendants filed a response in opposition in which they seek a protective order [Doc. 79],
and Plaintiff replied [Doc. 82]. Plaintiff also sets forth allegations related to this motion in
his motion for default judgment [Doc. 83] and his response in opposition to Defendant’s
motion for summary judgment [Doc. 86].
Also before the Court is Defendants’ motion for summary judgment [Doc. 80]. In
support of their motion, defendants submitted affidavits from Defendants Buck and Bush
[Docs. 80-1, 80-2], a transcript of the hearing where Plaintiff pled guilty to assault on
Adams and Defendants Buck and Bush [Doc. 53-1], copies of the relevant criminal
judgments [Doc. 53-2],1 and a memorandum [Doc. 81]. Plaintiff filed a response in
1.
Defendants specifically incorporate the transcript and criminal judgments, which they
filed as exhibits to their first motion for summary judgment that the Court denied without
prejudice, into the instant motion for summary judgment [Doc. 80 p. 1].
2
opposition with an affidavit from Adams [Doc. 86], and Defendants filed a reply [Doc. 88]
and affidavits of complaint from Plaintiff’s arrest [Doc. 88-1].
For the reasons that follow, Plaintiff’s motion to compel discovery [Doc. 78] will
be DENIED, Defendants’ motion for summary judgment [Doc. 80] will be GRANTED,
all other pending motions [Docs. 79, 83] will be DENIED as moot, and this action will be
DISMISSED without prejudice.
I.
Motion to Compel Discovery
Plaintiff has filed an undated motion to compel discovery [Doc. 78], which the Court
received on September 9, 2019, in which he alleges that the Court served Defendants with
discovery documents on April 8, 2019, but the Defendants have not responded and have
therefore waived any objections thereto. The Court did not, however, enter an order on
April 8, 2019. It appears that this argument is likely referring to the Court’s June 11, 2019
order [Doc. 70] addressing Plaintiff’s discovery motions, which were docketed on April 8,
2019 [Docs. 49, 50, 51]. In that order, the Court denied Plaintiff’s discovery motions
without prejudice based on its entry of an amended scheduling order [Doc. 71 p.1] and
therefore denied Defendants’ motion for protective order regarding these motions as moot
[Doc. 70 p. 8].
In their response in opposition to this motion, Defendants state that Plaintiff did not
notify them that he sought discovery based on his previously-filed discovery requests until
he filed this motion [Doc. 79 p. 1–2]. Defendants therefore assert that Plaintiff’s request
3
for discovery in this motion is untimely, as the applicable discovery deadline was
September 3, 2019 [Doc. 79 p. 4–6].
Plaintiff filed a reply stating that he had filed “second amended motions for
discovery on time” with the Court and Defendants with a “postage stamp of mailing” [Doc.
82 p. 1], but no such filings are in the record. Plaintiff also filed a motion for default
judgment [Doc. 83], asserting that on June 11, 2019, the Court granted his motion to
compel discovery that “set[] a 14 day time scheduling,” [Id. at 1] but that Defendants have
not complied therewith [Id. at 1–2].2 Also, in his response in opposition to Defendants’
motion for summary judgment, Plaintiff asserts that he should be allowed to obtain
discovery prior to a ruling on Defendants’ motion for summary judgment [Doc. 86 p. 3].
Accordingly, the Court must determine whether to (a) grant Plaintiff’s motion to
compel discovery and require Defendants to respond to Plaintiff’s discovery requests prior
to ruling on Defendants’ motion for summary judgment, or (b) deny Plaintiff’s motion to
compel discovery and rule on Defendants’ motion for summary judgment. The Court will
therefore first address Plaintiff’s motion to compel discovery.
“The general rule is that summary judgment is improper if the non-movant is not
afforded a sufficient opportunity for discovery.” Vance By and Through Hammons v.
United States, 90 F.3d 1145, 1148 (6th Cir. 1996). In ruling on a party’s request for
discovery in the face of a motion for summary judgment, the primary consideration is
2.
Plaintiff also states in this motion that Defendants have not complied with assisting
Plaintiff “in obtaining the verification requested” for “over a year” but does not set forth any facts
explaining this allegation [Doc. 83 p. 1].
4
whether the moving party diligently pursued discovery. Dowling v. Cleveland Clinic
Found., 593 F.3d 472, 478 (6th Cir. 2010). The Court considers the following factors: (1)
when the party seeking discovery learned of the discovery issue, (2) how further discovery
would affect the summary judgment ruling, (3) the length of the discovery period, (4)
whether the moving party was dilatory, and (5) whether the adverse party was responsive.
Id.
Also, under Rule 56(d) of the Federal Rules of Civil Procedure, a party served with
a motion for summary judgment that cannot present essential facts to justify its opposition
thereto may set forth the specific reasons it cannot do so through affidavit or declaration,
at which point a court may defer consideration of or deny the summary judgment motion,
allow the parties to engage in discovery, or “issue any other appropriate order.” Fed. R.
Civ. P. 56(d). Such motions “should be granted almost as a matter of course unless the
non-moving party has not diligently pursued discovery of the evidence.” Doe v. City of
Memphis, 928 F.3d 481, 490–91 (6th Cir. 2019).
First, the main discovery that Plaintiff seeks in his motion to compel are video
recordings of the underlying incident and his medical records [Doc. 78].
Plaintiff,
however, has not filed any sworn statement that he could not present essential facts in
response to Defendants’ motion for summary judgment without such discovery pursuant
to Rule 56(d).
Further, the record establishes that while Plaintiff has sought discovery of the
relevant video recordings and medical records repeatedly throughout this case, he has not
5
diligently done so during the discovery period. Specifically, on September 17, 2018, the
Court received Plaintiff’s first motion for discovery that was not premature3 [Doc. 31] after
Defendants had filed a motion to dismiss [Doc. 28]. In response, Defendants sought to
stay discovery pending a ruling on their motion to dismiss [Doc. 34]. On March 4, 2019,
the Court entered an order denying Defendants’ motion to stay discovery and granting
Plaintiff’s motion for discovery to the extent that the Court entered a scheduling order
setting a deadline of April 8, 2019, for the completion of all discovery [Docs. 39, 40].
While this left only slightly more than a month for the parties to engage in discovery,
Plaintiff did not promptly send Defendants discovery requests or seek extension of this
discovery period.
Instead, Plaintiff waited until April 1, 2019, a week before the applicable discovery
deadline, to file several motions for discovery [Docs. 49, 50, 51]. Defendants opposed
these motions by asserting that they were untimely and that Heck v. Humphrey, 512 U.S.
477 (1994) clearly barred Plaintiff’s claims; defendants therefore sought a protective order
[Docs. 56, 57].
On June 11, 2019, the Court denied Plaintiff’s pending discovery motions without
prejudice and denied Defendants’ motion for protective order as moot [Doc. 70 p. 6–8] due
to its entry of an amended scheduling order setting a new discovery deadline of September
3, 2019 [Doc. 71 p. 1], which provided the parties more than eleven (11) weeks for
3.
Plaintiff filed a number of motions for discovery in this case before Defendants filed an
answer. The Court denied those motions as premature [Docs. 15, 26].
6
discovery. Plaintiff did not file anything else with the Court regarding discovery until he
filed his pending motion to compel discovery on August 27, 2019, once again a week
before the discovery deadline [Doc. 78].
As discussed, Plaintiff states in his motion to compel that the Court served
Defendants with discovery on April 8, 2019 [Doc. 78 p. 1]. Plaintiff also states in his
response in opposition to Defendants’ motion for protective order that he sent “second
amended motions for discovery” to the Court and Defendants [Doc. 83]. However, the
record does not support these assertions.
Specifically, as set forth above, it appears that Plaintiff’s statement that the Court
“served Defendants with discovery” on April 8, 2019, is likely a misguided reference to
the order that the Court entered on June 11, 2019. In this order, the Court denied without
prejudice Plaintiff’s pending discovery motions, which the Clerk had docketed on April 8,
2019, based on its entry of an amended scheduling order with a new discovery deadline,
and therefore denied Defendants’ motion for protective order regarding these motions as
moot [Doc. 70; Doc. 71 p. 1]. Plaintiff’s motion to compel and motion for default judgment
suggest that Plaintiff interpreted this order to grant his motions for discovery. But that is
not a reasonable interpretation of this order. To the contrary, the order denied Plaintiff’s
motions for discovery without prejudice and stated that the parties “shall pursue discovery
in accordance with the amended scheduling order entered contemporaneously herewith”
[Doc. 70 p. 6–8 (emphasis added)].
7
Moreover, even if Plaintiff believed that Defendants were supposed to answer his
previously discovery requests based on the Court’s June 11, 2019 order, Plaintiff did not
diligently pursue responses to these discovery requests in accordance with this assumption.
Instead, he waited until approximately eleven (11) weeks after entry of this order and a
week before the applicable deadline for completion of discovery, specifically August 27,
2019, to file his motion to compel [Doc. 78 p. 4]. Thus, although the record establishes
that Plaintiff has repeatedly sought the subject discovery from the beginning of this case,
Plaintiff failed to properly pursue that discovery during the two appropriate periods of time
in which he had sufficient opportunity to do so.
Further, discovery of the video recordings and medical records that Plaintiff seeks
would not affect the Court’s decision as to whether Defendants are entitled to summary
judgment. Specifically, as set forth more fully herein, the sworn filings in this case
establish that the only remaining dispute herein is whether Plaintiff’s claim that Defendant
Buck used excessive force against him by “ramming” his head into a wall arises out of the
same incident underlying Plaintiff’s conviction for assault on Defendant Buck, or whether
Plaintiff had stopped resisting arrest at the time of this use of force in a manner that would
separate Plaintiff’s assault conviction from this use of excessive force such that Heck would
not bar this claim.
Because the evidence establishes that Plaintiff’s act of striking
Defendant Buck, which underlies Plaintiff’s conviction for assault of Defendant Buck, and
Defendant Buck’s alleged “ramming” of Plaintiff’s head into the wall arise out of the same
confrontation, the requested discovery would not change the conclusion in this case. In
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other words, even if the video recordings and medical records that Plaintiff seeks in his
motion to compel discovery establish that Defendant Buck used excessive force against
him in the manner alleged in Plaintiff’s sworn filings, a finding in Plaintiff’s favor for this
excessive force claim would invalidate Plaintiff’s conviction for assault on Defendant Buck
and therefore Heck would still bar this claim. Cummings v. City of Akron, 418 F.3d 676,
682–83 (6th Cir. 2005).
Accordingly, Plaintiff’s motion to compel discovery [Doc. 78] will be DENIED,
and the Court will not defer ruling on Defendants’ motion for summary judgment.
II.
Summary Judgment
A.
Factual Background
1.
Second Amended Complaint4
As the Court has previously noted, on October 24, 2015, Plaintiff visited Adams,
who had been injured in a car accident that afternoon, at the hospital where Defendants
were security guards [Doc. 76 p. 4–6]. While he was speaking to Adams, Defendant Buck
approached him, told him to calm down, grabbed his arm, had him place his hands on the
As the Court only allowed Plaintiff’s claims for excessive force and state law claims for
aggravated assault to proceed in this action [Doc. 15 p. 10–12, 16–18, 20], the Court includes only
the allegations of Plaintiff’s second amended complaint that relate to these claims.
4.
Also, for the reasons set forth more fully below, the only allegations in Plaintiff’s second
amended that are sworn, and therefore may be considered in ruling on Defendants’ motion for
summary judgment, are his allegations that Defendant Buck shoved him against the wall before
handcuffing him, ramming his head into the wall, and later re-handcuffing him [Doc. 72; Doc. 76
p. 1]. 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).
Regardless, the Court provides a full summary of the second amended complaint for context.
9
wall, and told him that he was under arrest for assaulting a female patient by strangulation
[Id. at 1, 6]. Defendant Buck then shoved Plaintiff against the wall and arrested him, at
which point Plaintiff was “detained [and] that’s when [Defendant] Buck rammed
[Plaintiff’s] head into the wall” [Id.]. Defendant Buck next struck Plaintiff in the back of
his head with his knee, at which point Plaintiff “attempt[ed] to escape from the assaults”
[Id. at 6]. Plaintiff almost made it to the exit doors, but Defendants Moore and Buck tased
him, after which Defendant Buck tackled Plaintiff while he was on his knees and held him
down while Defendant Moore “continued to energize and deploy his taser even though
Plaintiff was subdued” [Id.].
Defendant Buck then stated that Plaintiff was lucky that they had not “let the K9
loose on [him], because this is personal that wasn’t an option” and Adams told Defendants
Buck and Moore not to hurt Plaintiff because he did not do anything [Id.]. Defendant Buck
then placed Plaintiff on the floor and began kicking him in the face while Defendant Bush
assisted [Id. at 7]. Also, Plaintiff later tried to pull his hands through his handcuffs, but
“[Defendant] Buck secured [his] hands and re cuffed them together” [Id. at 7, 1].
2.
Sworn Filings
a.
Defendant Buck
In his affidavit in support of Defendants’ motion for summary judgment [Doc. 802], Defendant Buck testifies that after the dispatch officer advised him that he had
witnessed a white male putting his hands around a female patient’s neck, he observed
10
Plaintiff standing over that female patient with his finger in her face and yelling at her [Id.
at 1–2]. Defendant Buck observed red marks on the female patient’s “jaw line and neck”
and was concerned for her safety, so he intervened and attempted to escort Plaintiff away
from her [Id. at 2]. When he did so, he “could smell the odor of alcohol emanating from
the Plaintiff” and was concerned for his safety and the safety of others [Id.]. Accordingly,
Defendant Buck intended to place Plaintiff under arrest and requested that Plaintiff turn
and place his hands on the wall so that he could apply handcuffs [Id.].
While Plaintiff initially complied, he kept turning his head in either direction, and
ultimately turned and assaulted Defendant Buck “by striking [him] in the face with his left
elbow and immediately fled” [Id.]. Defendant Buck “dropped his hand cuffs and grabbed
the Plaintiff’s right shoulder and left arm in an effort to bring the Plaintiff to the ground.
Emergency medical technician [Defendant] Chuck Bush assisted in trying to gain control
of the Plaintiff although [the Plaintiff continued to resist by flailing his arms. In the course
of the struggle, [Defendant Buck] observed Plaintiff strike [Defendant] Bush in his lower
back” [Id.].
Defendant Buck further testifies that Defendant Moore “deployed his Taser in an
effort to apprehend the Plaintiff in the hallway with no apparent effect. The Plaintiff
continued to flee, turning at the end of the hallway and proceeding down another hallway
towards the emergency department registration area” [Id.].
Defendant Buck chased
Plaintiff and ordered him to stop, but Plaintiff did not obey his commands [Id.]. Defendant
11
Buck therefore deployed his taser, which caused Plaintiff to fall and strike his face on a
hand rail and/or the floor [Id. at 2–3].
Defendant Buck approached Plaintiff and ordered him to stay on the floor and place
his hands behind his back [Id. at 3]. Plaintiff ignored these commands, “attempted to stand,
and continued to flail his arms and to resist [their] efforts to subdue him,” which caused
another deployment of the taser, at which point Plaintiff obeyed Defendant Buck’s
commands “to the extent that he allowed [Defendant Buck] to handcuff him” [Id.]. After
Plaintiff was handcuffed, however, he “remained noncompliant and ignored control
commands from [Defendant Buck] and [Defendant Moore]” but “eventually stopped
resisting and was compliant” [Id.].
Defendant Buck testifies that he did not use any force on Plaintiff after Plaintiff was
in handcuffs, never placed Plaintiff on the hallway floor or kicked him in the face, never
rammed Plaintiff’s head against the wall, and only handcuffed Plaintiff a single time [Id.].
He further states that each time an officer deployed a taser on Plaintiff during the incident,
Plaintiff was actively resisting his and Defendant Moore’s efforts to “control and to
apprehend him” [Id. at 4].
b.
Defendant Bush
Defendant Bush observed Plaintiff “screaming at a female patient in a hospital bed
and ordering her to leave with him,” and when she did not comply, Plaintiff strangled her
and “tried to pull her out of her hospital bed” [Doc. 80-1 p. 1]. Defendant Buck attempted
12
to intervene, but a struggle ensued [Id.]. Defendant Bush attempted to check on the female,
but Plaintiff then fled from Defendant Buck and “assaulted [Defendant Bush] by striking
[him] in his lower back and side of [his] hip,” grabbing his upper body, and shoving him
to the side as Plaintiff headed to the end of the hallway with Defendants Moore and Buck
in pursuit [Id. at 1–2]. Plaintiff continued to flee after a first taser deployment had no effect
[Id. at 2]. Defendant Bush further states that he did not assist in holding Plaintiff to the
floor and did not observe Defendant Buck strike Plaintiff, kick Plaintiff in the face, or ram
Plaintiff’s head into the wall [Id.].
c.
Plaintiff’s Sworn Allegations
Plaintiff has twice filed amendments to his complaint [Docs. 37, 72] without filing
an entire amended complaint in violation of the Court’s local rule, E.D.TN LR 15.1, and
the Court’s order [Doc. 70 p. 8]. Thus, the Court has twice directed the Clerk to file an
amended complaint on Plaintiff’s behalf incorporating those filings [Doc. 39 p. 6; Doc. 75
p. 3], with the Clerk ultimately combining three separate filings [Docs. 2, 37, 72] into
Plaintiff’s second amended complaint [Doc. 76], which is now the operative complaint.
As Plaintiff filed these documents separately, however, he signed them separately, and he
did not incorporate his other filings in his amendments [Docs. 37, 72]. Accordingly, the
Court must evaluate these filings separately to determine whether each qualifies as an
affidavit that must be considered for purposes of summary judgment. El Bey v. Roop, 530
F.3d 407, 414 (6th Cir. 2008) (holding that a sworn complaint carries the same weight as
an affidavit for purposes of summary judgment).
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(1)
Original Complaint and First Amendment
First, the bulk of Plaintiff’s second amended complaint is his original complaint
[Doc. 2; Doc. 76 p. 2–17] that includes a “verification” stating:
I the undersigned, after being duly sworn, state that I am the
Plaintiff named above and herein, that I have read the
foregoing COMPLAINT AT LAW FOR VIOLATIONS OF
CIVIL RIGHTS UNDER 42 U.S.C. § 1983 and all of the
information contained therein is true and accurate to the best
of my knowledge, information, and belief; that the Complaint
is not made out of levity or in collusion with the Defendants or
for any improper purpose, but in sincerity and truth for causes
within the complaint.
[Doc. 2 p. 16; Doc. 76 p. 17]. However, this complaint was not notarized, and the
verification therein does not substantially comply with 28 U.S.C. § 1746, as it does not
state that Plaintiff signed his complaint “under penalty of perjury.” Further, Plaintiff’s first
amendment to this complaint [Doc. 37; Doc. 76 p. 18] has no verification and is not
notarized.
As such, the Court will not consider these filings [Docs. 2, 37; Doc. 76 p. 2–19] for
purposes of summary judgment. Fed. R. Civ. P. 56(c)(4) (providing that “[a]n affidavit or
declaration used to . . . oppose a motion for summary judgment 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”); CareToLive v. Food & Drug
Admin., 631 F.3d 336, 345 (6th Cir. 2011) (holding that a statement not sworn to a public
notary or signed under penalty of perjury is not an affidavit); Dole, 942 F.2d at 968–69
(providing that a court may not consider unsworn statements at summary judgment).
14
(2)
Second Motion to Amend
Plaintiff also filed a second motion to amend his complaint to include two
amendments, and this motion was sworn before a notary5 [Doc. 72]. Again, however, this
motion did not incorporate other filings, but rather supplemented them [Id.]. Thus, the
Court considers only these two amendments in the second amended complaint as sworn
for purposes of summary judgment.
In his first sworn amendment to his complaint, Plaintiff states that after Defendant
Buck intervened in his conversation with Adams, Defendant Buck grabbed Plaintiff,
shoved him against the wall, and arrested him, at which point Plaintiff was detained, but
Defendant Buck then rammed Plaintiff’s head into the wall [Doc. 72 p. 1; Doc. 76 p. 1].
In his second sworn amendment to his complaint, Plaintiff states that after he was trying to
get his handcuffs off later, Defendant Buck re-handcuffed his hands more tightly [Id.].6
d.
Alice Adams
Adams testifies that on October 24, 2015, Plaintiff visited her in the hospital and,
that during this visit, Defendant Buck ordered Plaintiff to place his hands on the wall
Notably, however, the verification on this motion to amend states that Plaintiff, “after
being duly sworn according to law, make[s] oath that the facts stated in the foregoing Petition for
Declaratory Order are true and correct to the best of [Plaintiff’s] knowledge, information and
belief” [Doc. 72 p. 2 (emphasis added)]. This is a curious verification, as the filing is not a petition
for a declaratory order, but rather a motion to amend the complaint. Regardless, even if the Court
assumes that this verification is sufficient to establish that the amendments in the motion are sworn,
they are insufficient to create a genuine issue of material fact.
5.
6.
It is apparent that Plaintiff makes this second sworn amendment only to cure his previous
allegation in his complaint that Defendant Buck did not handcuff him until after Plaintiff had fled
from him in the hallway [Doc. 2 p. 5], as this allegation is inconsistent with Plaintiff’s first sworn
amendment statement that Defendant Buck handcuffed him while he was against the wall.
15
because he was being arrested for domestic assault [Doc. 86 p. 4]. Plaintiff was confused
and asked Defendant Buck why he was being arrested, and Defendant Buck stated that
Plaintiff was being arrested for strangling Adams [Id.]. Adams told Defendant Buck that
Plaintiff had not placed his hands on her, at which point Defendant Buck became upset and
again ordered Plaintiff to place his hands on the wall [Id.]. Plaintiff “was compliant,” and
Defendant Buck handcuffed and arrested him to take him to another area [Id.]. Plaintiff,
however, “continued to ask why” he was being arrested at which point Officer Buck
“became more forceful and slammed [Plaintiff] against the wall with orders to stop
resisting” and “rammed [Plaintiff’s] head into the wall” before Plaintiff “fled from Officer
Buck on foot out of the hallway” [Id. at 4]. Defendant Bush then entered and shot Plaintiff
with a taser, at which point Adams “was directed to get into a closet area with a small
window” [Id.]. When she saw Plaintiff “minutes later,” his face was covered in blood [Id.].
Adams then refused to sign a statement stating that Plaintiff had strangled her and
“confirmed to Officer Buck that [Plaintiff] had not placed his hands on [her]” [Id. at 4–5].
B.
Standard of Review
Rule 56(a) of the Federal Rules of Civil Procedure provides that “[t]he court shall
grant summary judgment if the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” In ruling on a
motion for summary judgment, the court must draw all reasonable inferences in favor of
the nonmoving party. McLean v. 988011 Ontario Ltd., 224 F.3d 797, 800 (6th Cir. 2000).
16
As such, the moving party has the burden of conclusively showing the lack of any genuine
issue of material fact. Smith v. Hudson, 600 F.2d 60, 63 (6th Cir. 1979). To successfully
oppose a motion for summary judgment, “the non-moving party . . . must present sufficient
evidence from which a jury could reasonably find for him.” Jones v. Muskegon Cty., 625
F.3d 935, 940 (6th Cir. 2010).
C.
Analysis
1.
Excessive Force Claims
a.
Applicable Law
In their motion for summary judgment, Defendants assert that they are entitled to
summary judgment on Plaintiff’s excessive force claims because Plaintiff pleaded guilty
to charges of assault on Defendants Buck and Bush based on the same incident underlying
those claims. In Heck, the Supreme Court held that if a judgment for plaintiff necessarily
implies the invalidity of an underlying criminal conviction, the action must be dismissed
unless the plaintiff can show the conviction has been reversed on direct appeal, expunged,
declared invalid by a state court, or called into question by a federal court’s issuance of a
writ of habeas corpus. 512 U.S. at 486.
The Sixth Circuit has specifically held that “an officer’s excessive use of force is a
defense to a charge of resisting arrest under Tennessee law” and that Heck therefore bars a
claim for excessive force under § 1983 that “arise[s] out of the same events” as those
underlying a conviction for resisting arrest. Parvin v. Campbell, 641 F. App’x 446, 450
17
(6th Cir. 2016). Similarly, Defendants’ uses of force against Plaintiff would have been an
affirmative defense to Plaintiff’s charges for assault on Defendants Buck and Bush to
which Plaintiff pled guilty under Tennessee law. Tenn. Code Ann. § 39-11-611; State v.
Ivy, 868 S.W.2d 724, 727 (Tenn. Crim. App. 1993) (providing that “self-defense is a
complete defense to crimes of violence”).
Further, where a plaintiff’s allegations of excessive force as to one officer arise out
of the same incident underlying his conviction(s) for assault of another officer, Heck
likewise bars those excessive force claims. Cummings v. City of Akron, 418 F.3d 676, 682–
83 (6th Cir. 2005) (affirming lower court’s finding that the plaintiff’s excessive force
claims against a city and two officers were barred by Heck where the plaintiff had been
convicted of a misdemeanor assault charge as to one of the officers because the same
struggle gave rise to both the assault conviction and plaintiff’s excessive force claims).
However, the Sixth Circuit has noted that Heck may not bar § 1983 claims alleging that
excessive force occurred “‘after the suspect ceases resisting arrest.’”
Hayward v.
Cleveland Clinic Found., 759 F.3d 601, 611–12 (6th Cir. 2014). Thus, Heck bars Plaintiff’s
claims for excessive force against Defendants7 to the extent that they arise out of the same
events underlying his assault convictions, unless the alleged uses of excessive force
7.
While Plaintiff was not charged with any assault of Defendant Moore, his assaults of
Adams and Defendants Buck and Bush are “inextricably intertwined” with the acts of Defendant
Moore alleged in the complaint such that any judgment in Plaintiff’s favor as to any of his
excessive force claims “would necessarily imply the invalidity” of his underlying assault
convictions. Cummings, 418 F.3d at 682–83.
18
occurred after Plaintiff had been arrested and ceased resisting arrest in a manner that would
sufficiently separate the excessive force acts that Plaintiff alleges from the acts underlying
Plaintiff’s assault convictions.
b.
Defendants’ Evidence
As set forth above, Defendants have filed a copy of the three relevant criminal
judgments against Plaintiff for assault arising out of the incident at issue in his complaint,
the transcript of the hearing at which Plaintiff pled guilty to these charges that demonstrates
that Plaintiff pled guilty to assaulting Adams by strangulation or attempted strangulation
on October 24, 2015, and to assaulting Defendants Buck and Bush when they attempted to
intervene, and the affidavits of complaint underlying Plaintiff’s assault convictions [Doc.
53-1 p. 17–19; Doc. 53-2; Doc. 88-1]. Also, Defendants Buck and Bush have set forth
sworn testimony that they did not use excessive force against Plaintiff after he was detained
and/or handcuffed, but rather used force only to subdue Plaintiff as he repeatedly and
violently attempted to resist arrest by attacking them and fleeing [Docs. 80-1, 80-2].
c.
Plaintiff’s Evidence
Taken together, Plaintiff’s sworn amendments to his complaint and Adams’s
affidavit establish evidence that Plaintiff complied with Defendant Buck’s order to get up
against the wall, but after Defendant Buck had handcuffed and detained Plaintiff, he
19
rammed Plaintiff’s head into the wall before Plaintiff fled8 [Doc. 72 p. 1; Doc. 76 p. 1;
Doc. 86 p. 4–5].
d.
Analysis
First, as set forth above, the only excessive force claim in Plaintiff’s second
amended complaint that Plaintiff’s sworn filings address is Defendant Buck’s act of
ramming Plaintiff’s head into the wall after he had intervened in Plaintiff and Adams’s
conversation, placed Plaintiff against the wall, and handcuffed him [Doc. 72; Doc. 76 p. 1,
6; Doc. 86 p. 4]. Thus, Defendants have established that no genuine issue of material fact
remains as to all other excessive force claims in Plaintiff’s second amended complaint
through their sworn evidence as set forth above and they are entitled to summary judgment
on those claims.
Accordingly, the remaining issue before the Court is whether Plaintiff’s two sworn
amendments in his second amended complaint [Doc. 76 p. 1] and Adams’s affidavit [Doc.
86 p. 4–5] are sufficient evidence from which a reasonable juror could find that Heck does
not bar Plaintiff’s excessive force claim alleging that Defendant Buck “ramm[ed]”
In her affidavit filed with Plaintiff’s response in opposition to the motion for summary
judgment, Adams also alleges after he had handcuffed Plaintiff, Defendant Buck “slammed”
Plaintiff into the wall “with orders to stop resisting” before “ramming” Plaintiff’s head into the
wall [Doc. 86 p. 4]. While Plaintiff’s sworn amendment to his complaint does state that Defendant
Buck shoved him against the wall before Plaintiff placed his hands on the wall, it contains no
allegation that Defendant Buck “slammed” Plaintiff into the wall after Plaintiff was handcuffed
[Doc. 76 p. 1, 6], and thus the Court does not consider this allegation from Adams a claim for
relief. Further, to the extent Plaintiff intended his statement in his sworn amendment to his
complaint that Defendant Buck “shoved” him against the wall to state a claim for excessive force,
it does not. Wilkins v. Gaddy, 559 U.S. 34, 37 (2010) (holding that “[a]n inmate who complains
of a push or shove that causes no discernible injury almost certainly fails to state a valid excessive
force claim”).
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8.
Plaintiff’s head into the wall because Plaintiff had ceased resisting his arrest at the time of
this act in a manner that separates the event underlying his conviction for assault of
Defendant Buck from this use of force. The Court finds that they are not.
Specifically, even accepting as true Plaintiff and Adams’s allegations that
Defendant Buck intervened in their conversation, successfully detained and handcuffed
Plaintiff while Plaintiff was against the wall, and then “ramm[ed]” Plaintiff’s head into the
wall, at which point Plaintiff fled, these allegations do not refute Defendant Buck’s sworn
testimony that Plaintiff turned and struck Defendant Buck in the face with his elbow before
he fled [Doc. 80-2 p. 2], nor do they indicate that Plaintiff was not otherwise resisting
Defendant Buck’s detention and arrest of him at that time [Doc. 72, Doc. 86 p. 4–5]. In
other words, Plaintiff’s sworn amendments and Adams’s affidavit conspicuously fail to
state that Plaintiff did not strike Defendant Buck in the face or otherwise resist Defendant
Buck’s attempts to keep Plaintiff detained during the confrontation in which Defendant
Buck “ramm[ed]” Plaintiff’s head into the wall.
Moreover, even if Plaintiff’s sworn filings did state as much, the record establishes
that Defendant Buck’s act of “ramming” Plaintiff’s head into the wall occurred after
Defendant Buck had intervened in Plaintiff and Adams’s conversation, which is the exact
confrontation underlying Plaintiff’s conviction for assault on Defendant Buck in which
Plaintiff admitted to striking Defendant Buck in the face with his elbow [Doc. 53-1 p. 18–
19]. Thus, Heck would still bar this excessive force claim, as this alleged excessive force
from Defendant Buck would have supported an affirmative defense of self-defense to
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Plaintiff’s charge of assault on Defendant Buck under Tennessee law. Tenn. Code Ann. §
39-11-611; Ivy, 868 S.W.2d at 727; Cummings, 418 F.3d at 682–83 (holding that Heck
barred excessive force claim where the plaintiff could have raised such force as a defense
to the assault charge, but instead chose not to contest the charge). To put it another way,
as the record establishes that Defendant Buck’s act of “ramming” Plaintiff’s head into the
wall and Plaintiff’s act of striking Defendant Buck in the face with his elbow that resulted
in Plaintiff’s conviction for assault of Defendant Buck happened in the same confrontation,
they are “inexplicably intertwined,” and Heck therefore bars Plaintiff’s claim for excessive
force against Defendant Buck arising out of this act. Cummings, 418 F.3d at 682–83.
Thus, the undisputed sworn evidence in the record establishes that Plaintiff’s claims
for excessive force arise out of the same incidents underlying Plaintiff’s state law
convictions for assault of Defendants Buck and Bush [Doc. 53-2]. As nothing in the record
suggests that those convictions have been declared invalid in any way, Heck bars these
claims.
2.
State Law Claims
As set forth above, this action is also proceeding as to Plaintiff’s state law claims
for aggravated assault, as the Court has supplemental jurisdiction over these claims through
28 U.S.C. § 1367. However, a district court may decline to exercise supplemental
jurisdiction over such claims if it has dismissed all claims over which it has original
jurisdiction. 28 U.S.C. § 1367(c)(3). Accordingly, as the Court has determined that Heck
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bars Plaintiff’s excessive force claims under § 1983, it will decline to exercise
supplemental jurisdiction over the state law claims.
III.
Conclusion
For the reasons set forth above, Plaintiff’s motion to compel discovery [Doc. 78]
will be DENIED, Defendants’ motion for summary judgment [Doc. 80] will be
GRANTED, all pending other motions [Docs. 79, 83] will be DENIED as moot, and this
action will be DISMISSED without prejudice. Also, the Court CERTIFIES that any
appeal from this order would not be taken in good faith.
AN APPROPRIATE JUDGMENT ORDER WILL ENTER.
ENTER:
s/ Thomas A. Varlan
UNITED STATES DISTRICT JUDGE
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