Cretacci v. Call et al
Filing
74
MEMORANDUM OPINION.Signed by Magistrate Judge Christopher H Steger on May 20, 2020. (SAC)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT WINCHESTER
BLAKE CRETACCI,
)
)
Plaintiff,
)
v.
)
)
JOE CALL, BRIAN KEITH, JARED )
NELSON, JESSE HARDEN, CODY )
FAUST, and COFFEE COUNTY,
)
)
Defendants.
)
Case No. 4:16-cv-97-CHS
MEMORANDUM OPINION
I.
Introduction.
Defendants, Coffee County Deputies Joe Call, Brian Keith, Jared Nelson, Cody Faust and
Coffee County, move for summary judgment [Doc. 67] in this action brought by Plaintiff Blake
Cretacci pursuant to 42 U.S.C. § 1983 for alleged constitutional violations while Plaintiff was a
pretrial detainee in the Coffee County jail. For the reasons stated herein, Defendants' Motion for
Summary Judgment shall be GRANTED.
II.
Background
A.
Facts
When reviewing a motion for summary judgment, the Court must consider the facts in the
light most favorable to the nonmoving party who is, in this case, Plaintiff Cretacci. See Morris v.
Crete Carrier Corp., 105 F.3d 279, 280-81 (6th Cir. 1997). This case arises from incidents occurring
on three separate days—September 29, 2015, October 11, 2015, and January 14, 2017—while
Plaintiff was incarcerated at the Coffee County Jail as a pretrial detainee.
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1.
September 29, 2015, Incident
On September 29, 2015, while Plaintiff was incarcerated in BC pod at the Coffee County
jail, some inmates decided to hold a "peaceful riot" to protest conditions at the jail. Defendants
have submitted two videos of this incident which provide a view of the pod. Based on that video,
the Court makes the following observations about the pod:
•
The pod is one large room, referred to as the dayroom, with a two-story
ceiling.
•
Round tables with fixed seats are situated in the dayroom. The rear area of
the pod consists of two stories of individual cells running the length of the
room (the cell wall).
•
The cells have solid doors except for a long, very narrow rectangular
window in each cell door.
•
On the first floor, the cell doors open into the dayroom where the tables are
located.
•
On the upper level, the cell doors open onto a concrete balcony with a metal
railing running the length of the second story cell wall. An inmate standing
on the second story balcony can look down into the dayroom.
[See DVD videos of riot—Notice of Manual Filing, Doc. 47]
The "riot" involved the inmates' refusal to return to their cells for lockdown when
instructed. [Doc. 68-7, Cretacci Dep. at 41]. There were three ring leaders of this "riot": Jeremy
Mathis, BJ Murray, and Josh Byford. [Id. at 47]. They told the other inmates that, if they refused
to participate in the riot, they would get beaten-up later. [Id. at 54-56]. Because Plaintiff took this
threat seriously, he did not return to his cell when the guards instructed them it was time for lock
up. [Id.]. Some of the inmates (not Plaintiff) put soap, clothes and other items on the floor in front
of the main entrance door to the pod to impede the officers when they attempted to enter the pod.
[See DVD videos]. Some inmates hung sheets on the railing of the second-floor balcony to stop
pepperballs that the guards might fire at the inmates [Id.]. For the approximate two hour duration
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of the "riot," Plaintiff sat at a table or walked slowly around the dayroom. [Id.]. Because he had
closed his cell door earlier, he needed a guard's assistance to reopen it. [Doc. 68-7, Cretacci Dep.
at 52]. At some point, he attempted unsuccessfully to signal surreptitiously to the guards to unlock
his cell so that he could return to it. [Id.at 52, 55-56]. After about two hours, guards burst into the
dayroom from doors on either side of the dayroom. [See DVD videos]. Some were carrying
pepperball launchers. [Id.]. The guards ordered the inmates to lie on the floor, and the inmates
complied within a minute or two. [Id.]. Plaintiff asserts that he did not resist, but that he was struck
point-blank multiple times with pepperballs containing mace. [Doc. 68-7, Cretacci dep. at 42]. He
further alleges that the guards beat other non-resisting inmates. [Id. at 42, 44-45, 73].
According to Plaintiff, after the inmates returned to their cells following the incident, the
water in the sinks and toilets was turned off for two days and the toilets backed up. [Doc. 68-7,
Cretacci dep. at 68-71]. The inmates were made to eat in their cells while being exposed to the
fumes from human waste. [Id.]. They were also denied toilet paper. [Id. at 45-6]. They were not
allowed to shower, and mace burned Cretacci's skin for at least a day. [Id. at 69-70].
2.
October 11, 2015, Incident
In his deposition testimony, Plaintiff stated that, following the riot on September 29, 2015,
he notified the guards multiple times that he needed to be moved from BC pod; however, he made
no written request and he could not remember names of specific guards whom he notified. [Id. at
48]. He also testified that he told guards that the rioting inmates were going to do bad things to
people who did not participate in the riot, but he could not remember whom he told. [Id. at 117].
In response to a question about whether he had specifically told a Coffee County employee that he
was concerned for his safety due to threats by Mathis, Murray, or Byford, Plaintiff answered,
I wouldn't say that I'm afraid of these three people not knowing that they was [sic]
out to get me, not knowing that they was—a fight was going to happen in the future.
But I would have told these officers that this pod is crazy is what I kept saying.
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These people are nuts. I need to get out of this pod. You guys need to move me into
another pod. These people are nuts. You've got to understand.
[Id. at 165].
Very early on the morning of October 11, 2015—before breakfast—the three ringleaders
of the riot on September 29, 2015, Mathis, Murray, and Byford, were in the dayroom. Plaintiff left
his cell to ask them to be quiet and then returned to his cell. [Id. at 79]. Plaintiff testified that the
following event then occurred:
Jeremy Mathis came into my cell and assaulted me, tried to swing, and I hit him
out the door. And when I did that, the other two, Josh Byford and BJ Murray, were
on the—helped him try to hit me. They—all three of them tried to push me back
into the room, and I had fought my way out into the dayroom.
And once we got out into the open area, I started to have more words with them,
and the door opened up and officers came in. I immediately turned around and
walked back to my cell. The officers came into the cell, secured me, locked the
door, then left out in the dayroom, and they left the pod.
[Id. at 78-9].
When asked if he had spoken to the guards before going into his cell, Plaintiff testified that
the guards asked him what was going on and he replied, "'I don't know what the **** is going on.'
I remember saying that. I don't really know what—you know, it was pretty obvious what was
happening, but I don't know why things were happening. I was confused about being hit." [Id. at
92]. Jesse Harden and Jared Nelson were two of the guards who came into the pod. [Id. at 91].
Plaintiff testified that the fighting had stopped before the guards came into the pod. [Id. at 92]. The
guards then talked to Mathis, Murray, and Byford in the dayroom, but Plaintiff could not hear what
they were saying. [Id. at 92-3]. Then the guards left the dayroom, and Mathis, Murray, and Byford
threatened to kill Plaintiff. [Id. at 93]. Plaintiff did not call the guards on the intercom to tell the
guards about the threats. [Id. at 94].
About a half hour later, breakfast was served. [Id. at 79]. Plaintiff testified:
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I walked from my cell and got in line. I grabbed my tray and walked to a table and
set my tray down. I walked back to the cell to grab my spoon to eat breakfast.
When I walked into the cell, Jeremy Mathis was walking behind me. And when I
walked into my cell and grabbed my spoon and my cup that was on the table, I
turned around and he hit me, and I fell to the ground. He kept hitting me. And then
he had his hands on my face and just started punching me more. He punched me
for probably four or five times maybe, I would guess. After the first hit, I was out
of it, because he hit me hard and I'm seeing black, that's why I fell.
When he left the room, I had gotten back up, but I was disoriented. And when I got
out of the cell and went back to the table, I walked back to the table and I went to
sit down, and I guess the officer had come up behind me, grabbed me, and put me
up against the wall, 'cause I'm guessing that somebody was about to hit me again,
which I didn't see. Then they took me out of the pod . . . .
[Id. at 79-80]. Officers Nelson, Keith, and Call were in the pod at that time. [Id. at 96; Call's
Incident Report, Doc. 68-3, Page ID # 1089]. Officer Keith grabbed him and put him against the
wall to keep him from being assaulted. [Cretacci dep. at 104-05]. Keith and Call then escorted
Plaintiff "to medical" for evaluation. [Call's Incident Report, Doc. 68-3, Page ID # 1089]. In his
incident report, Call described the commencement of the incident in the dayroom at breakfast as
follows:
At approximately 0715, I, Deputy Joseph Call, was in BC pod serving breakfast
with CO Nelson. As we completed and were leaving, CO Keith entered the pod. At
this point, a verbal altercation began with inmates Mathis, Byford, Murray and
Cretacci, regarding a conflict that started this morning around 0600.
[Call's Incident Report, Doc. 68-3, Page ID # 1089]. After Plaintiff was taken to medical for
evaluation, he was permanently transferred to another pod for his protection and was not returned
to BC pod. [Doc. 68-1,Gentry Aff. ¶ 16]. In his deposition, Officer Call explained that he learned
Plaintiff, Mathis, Murray, and Byford had had a conflict at 6:00 a.m. by questioning Cretacci after
they removed him from BC pod. [Doc. 68-10, Call dep. at 19].
3.
January 14, 2017, Incident
Plaintiff asserts that, on January 14, 2017, he was sitting in the dayroom when Officer Cody
Faust and several other officers rushed into the room. Then, without provocation, Faust shot him
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two or three times with a pepperball launcher before he could comply with Faust's orders to get on
the ground. According to Defendants, officers had heard over the intercom a discussion among the
inmates about a plan to stab an unidentified inmate in the dayroom. [See Doc. 68-3, Incident
Reports]. Faust initiated a search of the pod to prevent serious bodily injury or death. [Id.]. He
ordered Officer Dubicki in the tower to make an announcement over the speakers in the dayroom
instructing the inmates to lie on the ground on their stomachs. [Doc. 68-3, Incident Report, Page
ID # 1085]. Faust heard Dubicki give the order. Then Dubicki notified Faust that some of the
inmates were refusing the order. [Id.] At that point Faust and two other officers entered the pod
with pepperball launchers.
In his deposition, Plaintiff described his view of the incident
I'm sitting at the table. I had my chess board out. I had my legs crossed. I'm waiting
for the other player to come down to play. The pod door opens up and officers enter
the pod, and the officers have pepperball guns and they stop at the front table, and
everybody is looking around. The officers are looking around. The inmates are
looking around, and everybody is questioning like, what the **** is going on, and
why do you guys have guns? And there is [sic] two guys on the front table, sitting
there, talking. And I'm just sitting there, and I'm looking, and they're talking to the
guys at the front table. And Officer Faust breaks off and screams, "get on the
ground." And he aimed his launcher right at me. (descriptive sound) shoots me,
(descriptive sound) while I'm sitting there. And he's yelling, "get on the ground, "
and I don't know, but I believe he shoots another inmate.
And as I get up, I get up off the stool that I'm sitting on, I get up, I turn around and
I go to get down on the ground. I put my hands in front of me and I start to bend
over, and he shoots me again, (descriptive sound). And I turn around and I said,
quote don't ******* shoot me. Quit that ******* ****. There is nothing—I'm not
even doing nothing."
And then I jump down on the ground. They go around and they search everybody.
And everybody is, like, what the **** is going on? And then they go upstairs. They
unlocked a room upstairs and grab them in and out, and they searched them. And
then I believe they leave the pod . . . .
And then I asked for—I believe it was the other guy that got shot. I think he asked
for the medical attention, to have somebody come down and look at us. And I don't
believe we were actually looked at till the next day or the day after. It could have
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been one or two days. But we did go to medical after a day or two, and they looked
at our injuries, and put a graph on them to find out how big they were.
And then I don't know if they gave me Ibuprofen or not. And then that was the end
of that.
[Cretacci dep. at 121-123].
Plaintiff clarified that Faust shot him once or twice in the arm with a pepperball when he
was seated at a table while Faust was saying, "get on the ground" [Id. at 124-25]. After he was
shot, he stood up and said, "dude, what are you doing, man? Why are you shooting me?" [Id. at
125]. Then he took off the poncho he was wearing because it made it difficult to get on the ground
and turned around to get down when Faust shot him again in the back. [Id. at 125]. Plaintiff stood
up again and said, "don't ******* shoot me again." [Id. at 126-27]. Then he hit the ground. [Id. at
127].
He did not hear the guard tower order the inmates to get on the ground before Faust entered
the dayroom. [Id. at 128]. Nobody got on the ground until the guards entered the dayroom and
started ordering them to get on the ground. [Id. at 128]. Plaintiff stated in his declaration that the
"dayroom does not have a loudspeaker." [Doc. 70-2, Cretacci Decl. ¶ 5]. However, that statement
was made in relation to the dayroom in BC pod where the October 11, 2015, incident occurred.
[See Doc. 70-2, Cretacci Decl. ¶ 4 referencing the dayroom on October 11, 2015]. Plaintiff was
moved out of that pod after the October 11, 2015, incident. [Doc. 68-1, Gentry Aff. ¶ 16]. The
January 14, 2017, incident occurred in a different pod from the one referenced in Plaintiff's
declaration.
B.
Procedural History
1. Plaintiff Mailed the Complaint to Be Filed
The original complaint in this case was mailed from the Coffee County jail and received
by the United States District Court for the Eastern District of Tennessee on October 3, 2016. [Doc.
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1]. At that time, Plaintiff's counsel, Drew Justice, was admitted to practice in the United States
District Court for the Middle District of Tennessee; however, he was not admitted to practice in
the Eastern District of Tennessee. [Doc. 70-1, Justice Aff. ¶ 3]. He mistakenly thought that Coffee
County was in the Middle District and learned late on September 28, 2016, that it is in the Eastern
District of Tennessee, Winchester Division. [Id. ¶ 4]. On September 29, he reviewed the rules to
be admitted either permanently or pro hac vice but determined it would take more than one day to
do either. [Id. ¶ 5]. Because he was not admitted to practice in the Eastern District, he could not
file the complaint electronically. [Id. ¶ 8]. He then took the complaint to Plaintiff at the Coffee
County Jail to sign. [Id. ¶ 6]. After getting the complaint signed, Mr. Justice took the signed
complaint to the courthouse in Winchester, Tennessee, to file it manually, but there was no Clerk's
Office located in the building. [Id. ¶ 10]. At that point, it was too late to take the complaint to
Chattanooga to be filed because the Clerk's Office in Chattanooga would be closed by the time he
arrived there. [Id. ¶ 10]. Mr. Justice then returned to the Coffee County Jail; gave Plaintiff an
addressed envelope and postage; explained the prison mailbox rule; and told Plaintiff to mail the
complaint. [Id. ¶ 11]. Mr. Justice assured him that "I would sign on to the case soon, once I got
admitted to practice in East Tennessee." [Id. ¶ 6]. The Clerk's Office in Chattanooga received the
complaint by mail on October 3, 2016. [Doc. 1]. Mr. Justice moved to be admitted to practice in
this Court pro hac vice on November 22, 2016 [Doc. 3], and was admitted the following day [Doc.
4]. On March 11, 2017, Plaintiff amended his complaint to add Count IV which arises from the
January 14, 2017, incident.
2. The District Court Dismissed QCHC, the Medical Provider at the Coffee
County Jail
Plaintiff also sued QCHC, Inc., ("QCHC") a private medical provider with which Coffee
County had contracted to provide medical services to the inmates at the Coffee County jail. In the
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Amended Complaint, Plaintiff alleged that Coffee County delegated responsibility for all medical
decisions to QCHC. [Doc. 18, Am. Compl. ¶ 4]. In Count I, Plaintiff brought a claim under 42
U.S.C. § 1983 against QCHC alleging that QCHC had acted with deliberate indifference to his
serious medical needs in violation of the Fourteenth Amendment by the following conduct:
•
During the September 29, 2015 riot, Plaintiff was shot twice in the face with
two pepperballs filled with mace, and he was denied treatment.
•
On October 11, 2015, Plaintiff was hit in the mouth by an inmate known to
have HIV and some of the inmate's blood got into Plaintiff's mouth. He also
sustained injuries to his face causing it to become swollen. QCHC refused
to x-ray his face for three months to determine if it had been fractured and
only gave him Ibuprofen.
•
QCHC refused to provide him with any prophylactic treatment to prevent
him from becoming infected with HIV despite knowledge of the attacker's
HIV status. Further, QCHC did not perform an HIV test on Plaintiff until a
week after the attack. Although the test was negative, the nurse who
performed the test told Plaintiff the test was inconclusive because it had
been performed so early. Plaintiff was finally given a second test after
multiple requests ten months later and was told it was negative, but he was
not given the test results.
Upon review of QCHC's Motion to Dismiss, the District Court found that QCHC's alleged
conduct, assuming it to be true for purposes of the motion to dismiss, did not rise to the level of a
constitutional violation, and the Court dismissed all claims against QCHC. 1 [Doc. 33, June 19,
2017, Memorandum and Order].
3. Plaintiff's Amended Complaint
Plaintiff asserts four counts in his Amended Complaint. All counts are brought under 42
U.S.C. § 1983 alleging various constitutional deprivations.
1
Plaintiff did not bring a negligence claim against QCHC.
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a. Count I "Violation of the Right to be Free of Punishment Without Due
Process of Law."
In Count I, Plaintiff brings claims arising from the October 11, 2015 assaults against
Defendants Call, Keith, Nelson, Harden and Coffee County asserting:
•
Defendants failed to protect Plaintiff from violent assaults by other inmates
on October 11, 2015, and were therefore "deliberately indifferent to the
Plaintiff's health and safety" thereby violating his "Fourteenth Amendment
right to be free of punishment without due process of law." [Am. Compl.
50].
•
Coffee County is responsible for the acts of the individual defendants
because they were acting according to "common jail custom." [Am. Compl.
¶ 51].
•
Coffee County, as well as QCHC, acted with deliberate indifference to
Plaintiff's serious medical needs in violation of the Fourteenth Amendment.
The factual basis for this claim against Coffee County is the same as the
factual basis for this claim against QCHC which the District Court
dismissed.
b. Count II "Excessive Force."
In Count II, Plaintiffs brings claims arising from the September 29, 2015 riot against
Coffee County only, alleging that Coffee County violated his Fourteenth Amendment rights to be
free of excessive force and "to be free of punishment without due process of law" for the
following reasons:
•
Coffee County engaged in "collective punishment against inmates." [Am.
Compl. ¶ 62]. Collective punishment would include denying water and
toilet paper for two days after the September 29, 2015, riot. [Id. ¶ 11].
•
Coffee County officers assaulted Plaintiff with pepperballs and mace even
though he was not resisting the officers when they entered the pod during
the September 29, 2015 riot. [Am. Compl. ¶ 62].
•
Coffee County is liable for its officer's conduct because Coffee County
failed to properly train or supervise the officers, or the officers acted
according to "improper policies." [Am. Compl. ¶ 62].
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c. Count III—"Violation of the Right to be Free of Punishment without Due
Process of Law."
In Count III, Plaintiff brings claims arising from the September 29, 2015, riot against only
Coffee County asserting that:
•
[b]y failing to distribute essential supplies . . such as toilet paper and by
disabling their water supply as a form of collective punishment, [after the
September 29, 2015 riot] . . . Coffee County violated Plaintiff Cretacci's
Eighth Amendment right to be free of cruel and unusual punishment." [Am.
Compl. ¶ 64].
•
Coffee County is a liable for its officers' conduct because the officers were
acting according to a custom and "improper policies" and/or Coffee County
failed to properly train or supervise the officers. [Id.].
d. Count IV—"First Amendment Retaliation and Excessive Force"
In Count IV, Plaintiff brings claims arising from the January 14, 2017, incident Officer
Cody Faust and Coffee County alleging that:
•
Faust used excessive force in violation of the Fourteenth Amendment by
shooting Plaintiff with a riot gun containing pepperballs without cause on
January 14, 2017. [Am. Compl. ¶ 66].
•
Coffee County is liable for Faust's conduct because he was acting
according to Coffee County's custom or policy and Coffee County failed
to properly train and/or supervise Faust.
•
Faust shot Plaintiff with the pepperball launcher in retaliation for this
pending lawsuit thereby violating Plaintiff's First Amendment rights.
In his response to Defendant's Motion for Summary Judgment, Plaintiff conceded he had
no proof supporting his First Amendment retaliation claim and withdrew it. [Doc. 69, Pl.'s br. at
18].
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III.
Discussion
A.
Standard of Review
Fed. R. Civ. P. 56(c) provides that summary judgment will be rendered if there is no genuine
issue as to any material fact and the moving party is entitled to judgment as a matter of law. The
burden is on the moving party to show that no genuine issue of material fact exists, and the Court
must view the facts and all inferences to be drawn therefrom in the light most favorable to the
nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986);
Morris v. Crete Carrier Corp., 105 F.3d 279, 280-81 (6th Cir. 1997); 60 Ivy Street Corp. v. Alexander,
822 F.2d 1432, 1435 (6th Cir. 1987). The moving party may satisfy its burden by presenting
affirmative evidence that negates an element of the nonmoving party's claim or by demonstrating an
absence of evidence to support the nonmoving party's case. Celotex Corp. v. Catrett, 477 U.S. 317,
323-35 (1985); Rodgers v. Banks, 344 F.3d 587, 595 (6th Cir. 2003). There are "no express or implied
requirements in Rule 56 that the moving party support its motion with affidavits or other similar
materials negating the opponent's claim;" it is enough for the movant to "point[ ] out" an absence
of evidence on an essential element of the non-movant's claim. Celotex, 477 U.S. at 323-25; see
also Harvey v. Campbell Cnty, Tenn., 453 Fed. Appx. 557, 560 (May 10, 2011).
Once the moving party has fulfilled his initial burden under Rule 56, the nonmoving party is
not entitled to a trial merely on the basis of allegations. The nonmoving party is required to "go beyond
the pleadings and by his own affidavits, or by the depositions, answers to interrogatories, and
admissions on file, designate specific facts showing that there is a genuine issue for trial." Celotex,
477 U.S. at 324-25; see also 60 Ivy Street, 822 F.2d at 1435. The moving party is entitled to summary
judgment if the nonmoving party fails to make a sufficient showing on an essential element of its case
with respect to which it has the burden of proof. Celotex, 477 U.S. at 323; Collyer v. Darling, 98 F.3d
211, 220 (6th Cir. 1996).
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The judge's function at the point of summary judgment is limited to determining whether
sufficient evidence has been presented to make the issue of fact a proper jury question, and not to
weigh the evidence, judge the credibility of witnesses, or determine the truth of the matter. Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986); 60 Ivy Street, 822 F.2d at 1435-36.
B.
Analysis
Section 1983 is a remedial statute which does not itself create independent, substantive legal
rights. To make out a claim under 42 U.S.C. § 1983, the plaintiff is required to show that he has been
deprived of a right, privilege, or immunity secured to him by the United States Constitution or other
federal law and that the defendants caused the deprivation while they were acting under color of state
law. Gregory v. Shelby County, Tenn.,220 F.3d 433, 441 (6th Cir. 2000); Baker v. Hadley,167 F.3d
1014, 1017 (6th Cir. 1999); Valot v. Southeast Local School Dist. Bd. of Educ., 107 F.3d 1220, 1225
(6th Cir. 1997). In each of the Counts in his Amended Complaint, Plaintiff has alleged constitutional
deprivations caused by state actors. There is no dispute that the defendants are state actors. The
question before the Court is whether a constitutional deprivation occurred and, as to those claims
arising from the riot on September 29, 2015, whether Plaintiff's claims are barred by the applicable
statute of limitations. The Court will proceed in chronological order with respect to the events giving
rise to the claims in this action rather than in numerical order of the Counts in the Amended
Complaint.
1. Counts II & III: Claims Arising from the September 29, 2015 Riot
Count II ("Excessive Force") and Count III ("Violation of the Right to be Free of
Punishment without Due Process of Law") both arise out of the riot on September 29, 2015, and
include conduct allegedly occurring for two days after September 29, 2015—possibly until
October 1, 2015—i.e., shutting off water in the cells and denying inmates toilet paper.
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Defendant seeks summary judgment as to Counts II and III on substantive and statute of
limitations grounds. The Court will not reach the merits of Plaintiff's claims asserted in these
Counts because they are barred by the applicable statute of limitations.
In an action under 42 U.S.C. § 1983, the Court applies the statute of limitations for a
personal injury action under the law of the state in which the claim arises. Eidson v. Tenn. Dep't
of Children's Servs., 510 F.3d 631, 634 (6th Cir. 2007). In Tennessee, the limitations period is one
year. Tenn. Code Ann § 28-3-104(a); Eidson, 510 F.3d at 634-35. Though the statute of limitations
is borrowed from state law, "[t]he date on which the statute of limitations begins to run in a § 1983
action is a question of federal law." Id. at 635. "Ordinarily, the limitation period starts to run when
the plaintiff knows or has reason to know of the injury which is the basis of his action." Id.
Plaintiff signed and delivered his complaint to prison officials for mailing on September
29, 2016, and it was filed by the Clerk of Court on October 3, 2016. [Doc. 2]. The Clerk's Office
received the complaint on October 3, 2016. [Doc. 1].
The parties dispute what steps Plaintiff was required to take for the complaint to be deemed
"filed" by September 29, 2016. Plaintiff contends he was an unrepresented prisoner and thus
entitled to avail himself of the prison mailbox rule announced in Houston v. Lack, 487 U.S. 266,
108 S. Ct. 2379 (1988), making his Complaint timely because it was delivered to prison officials
on September 29, 2016. Defendant argues Plaintiff was represented by his present counsel and
thus required to file his complaint with the Clerk by September 29, 2016.
Initially, Defendant devotes significant attention to the "egregious fraud" allegedly
perpetrated on the Court by Plaintiff's filing the Complaint "pro se" when he was in fact
represented by counsel. Defendant insists this conduct was a misrepresentation to the Court,
arguing that ghostwriting is "universally condemned" and worthy of sanctions. [Doc. 68 at 13].
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Defendant suggests Justice delayed filing a notice of appearance to distance himself from
Plaintiff's filing, noting the more lenient standard of review afforded to pro se litigants. [Doc. 68
at 14]. In the course of this ad hominem attack on Justice, Defendant mischaracterizes case law,
cites inaccurately to an ethics opinion of the Tennessee Board of Professional Responsibility, and
construes other authority quite liberally in its favor. 2 But Defendant's strenuous opposition misses
the point. The question before the Court is simply whether Plaintiff was represented when he filed
the Complaint and, if so, whether he was nonetheless permitted to file his Complaint by delivering
it to a prison official for mailing.
Plaintiff argues he was unrepresented at the time of filing because his attorney was unable
to represent him in the appropriate federal court. [Doc. 69 at 10]. Justice avers that he believed the
appropriate district for filing was the United States District Court for the Middle District of
Tennessee, in which he was admitted to practice. [Doc. 70-1 at ¶ 3]. He learned of his mistake the
night before the statute of limitations expired but did not believe he could fulfill the requirements
for pro hac vice or permanent admission on time. [Id. at ¶ 5]. Knowing he could not file
electronically, he drove to the courthouse for the Winchester Division of the United States District
Court for the Eastern District of Tennessee to attempt to file the Complaint in person. [Id. at 10].
When he arrived in Winchester, he discovered there is not a staffed Clerk's office at the courthouse.
2
Defendant cites the fact section of Formal Ethics Opinion 2005-F-151 as though it were the guidance of the opinion
itself. [Doc. 71 at 5]. The brief cites Cook v. Stegall, 295 F.3d 517 (6th Cir. 2002) and Duhon v. Kemper, 19 F. App’x
353 (6th Cir. 2001) for the proposition that “[a]pplication of the prison mailbox rule is narrow, and it does not serve
to protect an incarcerated inmate from the negligence of his counsel.” Duhon makes no such holding, finding only
that the defendant waived his mailbox rule argument by failing to raise it at the trial level. Similarly, Cook v. Stegall,
has nothing to do with negligence of counsel, relating instead to whether a complaint mailed to a third party can be
deemed filed as of the date of mailing. Defendant cites Redmond v. United States, Case No. 4:13-cv-16, 2016 WL
9330497 (E.D. Tenn. Mar. 7, 2016) as holding that the prisoner could not use the mailbox rule because his declaration
“failed to establish in any meaningful way how he had timely and properly used the prison mailing system.” [Doc. 71
at 2]. In Redmond, the Court was applying Rule 3(d) of the Section 2255 Rules, which requires timely filing to be
shown by a declaration or notarized statement that sets forth the date of deposit and states that first-class postage has
been prepaid. Redmond, 2016 WL 9330497 at *4. In a § 1983 action, the Sixth Circuit has held that the “absent
contrary evidence,” courts assume the prisoner handed the complaint to prison officials for mailing on the date he or
she signed the complaint. Brand v. Motley, 526 F.3d 921, 925 (6th Cir. 2008).
Case 4:16-cv-00097-CHS Document 74 Filed 05/20/20 Page 15 of 26 PageID #: 1314
[Id. at ¶ 10]. He did not believe he could make it to the Chattanooga Clerk's office before it closed,
so he returned to the jail and instructed Plaintiff on how to file the Complaint. [Id. at ¶ 10, 11].
Justice's admission status and electronic filing capabilities in this District do not determine
whether Plaintiff was represented at the time of filing. His legal representation of Plaintiff is clear
from the fact that he drafted the Complaint, attempted to file it himself, and instructed Plaintiff on
how to file it. [Doc. 70-1 at ¶¶ 4, 11]. When Plaintiff delivered the Complaint for mailing, he did
so on the advice of his counsel. Plaintiff thus had the same benefit of counsel as any other
represented litigant.
The Court finds that Plaintiff was represented by counsel. And, because Plaintiff was
represented at the time of filing, the prisoner mailbox rule does not apply. Consequently, the Court
finds that the Complaint was filed on October 3, 2015. In Houston v. Lack, the Supreme Court of
the United States ruled that a pro se petitioner's notice of appeal on habeas corpus review would
be deemed filed as of the date it was delivered to prison officials for mailing to the court. 487 U.S.
266 (1988). The Court observed that "[t]he situation of prisoners seeking to appeal without the aid
of counsel is unique." Id. at 270. They are unable to monitor their notices of appeal to ensure they
are timely filed and are instead forced "to entrust their appeals to the vagaries of the mail." Id. at
271. Incarcerated litigants can never really be sure that their filings will be filed on time, relying
on prison officials "who may have every incentive to delay." Id. Accordingly, the Court held the
appeal was timely "because the notice of appeal was filed at the time petitioner delivered it to the
prison authorities for forwarding to the court clerk." Id. at 276.
The United States Court of Appeals for the Sixth Circuit has extended this holding to, inter
alia, "civil complaints filed by pro se petitioners incarcerated at the time of filing." Richard v. Ray,
290 F.3d 810, 813 (6th Cir. 2002); see also Aldridge v. Gill, 24 F. App'x 428 (6th Cir. 2001)
Case 4:16-cv-00097-CHS Document 74 Filed 05/20/20 Page 16 of 26 PageID #: 1315
(mailbox rule of Houston v. Lack applies to § 1983 suits under applicable state statute of
limitations). In Richard v. Ray, the Sixth Circuit reasoned that all of the circumstances cited by the
Supreme Court in Houston v. Lack are also present when a pro se prisoner files a civil complaint.
Id. The court has declined, however, to extend the rule to instances where the prisoner mails a
pleading to a third party for filing. Cook v. Stegall, 295 F.3d 517, 521 (6th Cir. 2002). "The
rationale for the rule is that the date the prisoner gives the petition to the prison can be readily
ascertained, and any delays in receipt by the court can be attributed to the prison, and pro se
litigants should not be penalized for a prison's failure to act promptly on their behalf." Id. at 521.
In contrast, when a prisoner mails a complaint to a third party, the certainty facilitated by the rule
is undermined. Id.
There is a circuit split as to whether the prison mailbox rule can be utilized by represented
prisoners. The United States Court of Appeals for both the Fourth and Seventh Circuits have
extended the rule to represented prisoners. United States v. Craig, 368 F.3d 738 (7th Cir. 2004)
(represented prisoners may use the mailbox rule to file a notice of appeal that otherwise complies
with Federal Rule of Appellate Procedure 4(c)); United States v. Moore, 24 F.3d 624, 625 (4th Cir.
1994) ("[T]here is little justification for limiting Houston's applicability to situations where the
prisoner is not represented by counsel."). The United States Court of Appeals for the Eight Circuit
and the Ninth Circuit have each held that a represented prisoner may not take advantage of the
rule. Burgs v. Johnson County, 79 F.3d 701 (8th Cir. 1996) (incarcerated plaintiff not entitled to
benefit of Houston because he was represented by counsel); Stillman v. LaMarque, 319 F.3d 1199
(9th Cir. 2003) ("[T]o benefit from the mailbox rule, a prisoner must . . . be proceeding without
assistance of counsel.").
Case 4:16-cv-00097-CHS Document 74 Filed 05/20/20 Page 17 of 26 PageID #: 1316
The Sixth Circuit has not directly addressed this issue, but the court's prior holdings suggest
it would restrict the rule's applicability to unrepresented prisoners. As announced in Houston v.
Lack, the mailbox rule was not expressly restricted to prisoners proceeding pro se. Yet when the
Sixth Circuit broadened the reach of the rule to include civil complaints, it limited that extension
to prisoners without counsel. The court held: "Houston v. Lack applies to civil complaints filed by
pro se petitioners incarcerated at the time of filing." Richard v. Ray, 290 F.3d at 813. To the extent
Richard v. Ray reflects an extension of Houston, that extension was a narrow one and should be
so construed.
The Sixth Circuit has also consistently focused on an inmate's lack of representation when
discussing whether the prison mailbox rule applies in different contexts. See Richard v. Ray, 290
F.3d at 812-13 (Houston Court considered "several concerns particular to the incarcerated prisoner
without counsel"); Cook v. Stegall, 295 F.3d 517, 521 (6th Cir. 2002) (mailbox rule exists because
"pro se litigants should not be penalized for a prison's failure to act promptly on their behalf");
Brand v. Motley, 526 F.3d 921, 925 (2008) (mailbox rule creates a relaxed filing standard for "pro
se prisoner's complaint"). The Sixth Circuit recently observed that the "mailbox rule exception is
supported by important public policy considerations that are unique to unrepresented, incarcerated
individuals . . . ." United States v. Smotherman, 838 F.3d 736, 737 (6th Cir. 2016). In Smotherman,
the court wrote: "The prison mailbox rule has been long established, and we have recognized the
typical rule that a pro se prisoner's notice of appeal is 'filed at the time [the pro se prisoner]
delivered it to the prison authorities for forwarding to the clerk." Id. (quoting Houston, 487 U.S.
at 276) (alteration in original).The Sixth Circuit's limited extension of Houston v. Lack to civil
complaints filed by pro se prisoners, combined with its consistent articulation of the rule as
Case 4:16-cv-00097-CHS Document 74 Filed 05/20/20 Page 18 of 26 PageID #: 1317
available to unrepresented inmates, suggests the court would decline to further extend the rule to
a represented prisoner plaintiff.
It appears to the Court that Justice tried to find a practical solution to his mistake of venue,
but that a confluence of obstacles prevented the timely filing of the Complaint. He could not file
electronically in the Eastern District because he was not admitted to practice in this District and so
could not register as an electronic filer. See United States District Court for the Eastern District of
Tennessee
Electronic
Case
Filing
Rules
and
Procedures,
Rule
5,
available
at
https://www.tned.uscourts.gov/sites/tned/files/ecf_rules_procedures.pdf (last accessed March 20,
2020). He could have filed the Complaint in person at the Clerk's office for the Chattanooga
Division of Eastern District, contemporaneously with an application for pro hac vice admission.
Unfortunately, he instead tried to file in the Winchester Division, which does not have a staffed
clerk's office and does not accept in-person, paper filings. 3
Such a routine attorney error does not permit the Court to extend the statute of limitations.
See Graham-Humphreys v. Memphis Brooks Museum of Art, Inc., 209 F.3d 552, 561 (6th Cir.
2000) ("Absent compelling equitable considerations, a court should not extend limitations by even
a single day."). As ever, an attorney is not required to wait until the final day of a limitations period
to file pleadings. Because Plaintiff's Count II excessive force claim arose on September 29, 2015,
and his Count III due process claims arose, at the latest, on October 1, 2015, his October 3, 2016,
filing was untimely as to these claims. Consequently, Plaintiff's claims brought under Counts II
and III are barred by the applicable statute of limitations.
3
The Court’s public website provides the following information regarding the Winchester Division under a link
entitled, “Location and Information”, “NOTICE: Any court filings in the Winchester Division should be mailed to
the Chattanooga Divisional Office” See https://www.tned.uscourts.gov/winchester.
Case 4:16-cv-00097-CHS Document 74 Filed 05/20/20 Page 19 of 26 PageID #: 1318
2. Count I: Claims Arising from the October 11, 2015 Assaults (Failure to
Protect) and Deliberate Indifference to Serious Medical Needs
a. Failure to Protect
Plaintiff alleges in Count I of his Amended Complaint that Defendants Call, Keith, Nelson,
and Harden failed to protect him from assaults by other inmates on October 11, 2015, and that this
failure violated his "Fourteenth Amendment right to be free of punishment without due process of
law." [Am. Compl. ¶ 50]. Plaintiff contends that Coffee County is liable for the individual defendants'
failure because they were acting according to "common jail custom." [Id. ¶ 51].
"'[P]rison officials have a duty to protect prisoners from violence at the hands of other
prisoners because corrections officers have 'stripped them of virtually every means of self-protection
and foreclosed their access to outside aid.'" Richko v. Wayne County, Michigan, 819 F.3d 907, 915
(6th Cir. 2016) (quoting Farmer v. Brennan, 511 U.S. 825, 833 (1994)). A pretrial detainee's claim
for failure to protect is recognized under the Fourteenth Amendment and is analyzed using the same
standard as the Eighth Amendment. Richko, 819 F.3d at 915; see also Dickerson v. Ky Corr.
Psychiatric Ctr., No. 17-5412, 2017 WL 8792665, at * 2 (Oct. 12, 2017). The plaintiff bears the
burden "to present[] evidence from which a reasonable juror could conclude that the individual
defendants were deliberately indifferent to a substantial risk of serious harm to [the plaintiff] and that
they disregarded that risk by failing to take reasonable measures to protect him." Richko, 819 F.3d at
916; (citing Farmer, 511 U.S. at 842). This rubric has both an objective and subjective component.
Richko, 819 F.3d at 915, (citing Farmer, 511 U.S. at 835-38).
[A plaintiff] can satisfy the objective component by showing that, absent reasonable
precautions, an inmate is exposed to a substantial risk of serious harm. The subjective
component requires [the plaintiff] to show that (1) "the official being sued subjectively
perceived facts from which to infer a substantial risk to the prisoner," (2) the official
"did in fact draw the inference," and (3) the official then disregarded that risk. Because
government officials do not readily admit the subjective component of this test, it may
be demonstrated in the usual ways, including inference from circumstantial evidence.
Case 4:16-cv-00097-CHS Document 74 Filed 05/20/20 Page 20 of 26 PageID #: 1319
Richko, 819 F.3d at 915-16 (citations omitted).
Defendants assert Plaintiff cannot prove the elements of a failure to protect claim because he
can prove neither the objective nor the subjective components of the failure-to-protect analysis. [Doc.
68, Defs' br. at 22]. Since Plaintiff must present evidence to satisfy both components to defeat
Defendants' motion for summary judgment, the Court will focus on Defendants' stronger argument,
i.e., that Plaintiff has no evidence to support the subjective component. Plaintiff contends he does
have evidence to show that the individual Defendants knew Mathis, Murray and Byford presented a
substantial risk of serious harm to him:
•
"Plaintiff asserts that records show Mathis, who committed the assaults on
October 11, 2015, has shown a pattern of predatory behavior against other
inmates, and has been brought up on disciplinary charges six times." [Doc.
69, Pl.'s br. at 15]. In support of this last contention regarding disciplinary
charges, Plaintiff refers to Defendants' Response to Request for Production
No. 5.
Defendants' Response to Request for Production No. 5 states, "[a]ttached is a DVD containing
all responsive documents to this Request up to the date of June 7, 2017." [Doc. 70-6]. Insofar as it can
tell, the Court does not have these documents. There is an exhibit attached to Plaintiff's brief entitled,
"Case of Geremy Mathis: Disciplinary hearings" with a list of six "cases." [Doc. 70-5]. But this list
provides no information regarding the type of disciplinary charges against Geremy Mathis. The list
indicates one case was dismissed because Mathis was released from jail prior to the hearing. The
remaining cases were dismissed because, "[f]ailed to follow policy—Did not have hearing in policy
time frame." [Doc. 70-5]. Only two of the "cases" occurred before the October 15, 2015 assaults. [Id.]
This information is not evidence that the Defendants would have known Mathis presented a
substantial risk of serious harm to other inmates.
•
Plaintiff stated in his deposition that he told guards that Mathis had
threatened to beat up others who did not participate in the riot.
Case 4:16-cv-00097-CHS Document 74 Filed 05/20/20 Page 21 of 26 PageID #: 1320
Plaintiff could not identify the guards, so it is unknown whether the guards he told were the
individual Defendants in this case. Also, Plaintiff was a participant in the riot so he would not have
been targeted by Mathis. Moreover, Plaintiff explicitly denied telling any guard prior to either of the
assaults on October 11, 2015, that he was afraid of Mathis, Murray, and Byford. Rather, he told
unidentified guards that the pod "was crazy" and he wanted to be moved. This information does not
convey concern about one's safety.
•
Plaintiff asserts Defendants knew Plaintiff and Mathis had been in an
altercation on the morning of October 11, 2015.
The first assault on October 11, 2015, took place inside the cell. As previously mentioned, the
cell has a solid door except for a very narrow window. There is no evidence that the officers could
see inside the cell when the first assault happened. Plaintiff was able to push the attackers out of his
cell where they continued to "have words." Call's incident report, which states he saw a verbal
altercation, supports Plaintiff's own deposition testimony that once outside the cell, the altercation
was verbal—not physical. The guards took reasonable action by asking Plaintiff what was going on,
but Plaintiff did not tell them he had been assaulted or that he was afraid. He said he did not know
what was going on. This interaction was not enough to apprise Defendants that Plaintiff was at
substantial risk of serious harm. After the guards left the dayroom, Plaintiff did not use the intercom
inside his cell to report his assault, not even after he heard Mathis, Murray, and Byford say they were
going to kill him.
•
Plaintiff was assaulted a second time on October 11, 2015.
As with the first assault, the second assault took place inside Plaintiff's cell and would not
have been witnessed by guards outside the pod. Further, Plaintiff did not say he yelled for help while
it was occurring, and he did not report the assault when he exited the cell and sat down at the table.
Case 4:16-cv-00097-CHS Document 74 Filed 05/20/20 Page 22 of 26 PageID #: 1321
Moments later, before he could be hit again, Officer Keith grabbed him and placed him against the
wall to protect him. At that point he was taken for a medical evaluation and removed to another pod.
Based on the evidence presented by Plaintiff, the Court concludes that Plaintiff cannot meet
the subjective component of the applicable rubric. Plaintiff has presented no evidence that, prior to
each assault on October 11, 2015: (1) the individual Defendants knew facts from which to infer
Mathis, Murray, and Byford presented a substantial risk of serious harm to the Plaintiff; (2) the
individuals Defendants did in fact draw the inference; and (3) the individual Defendants then
disregarded that risk. Rather, the evidence presented by Plaintiff demonstrates that, when the officers
finally understood that Mathis presented a physical threat to Plaintiff, they intervened, took Plaintiff
for medical care, and removed him permanently from that pod.
Because there was no underlying constitutional violation, Plaintiff has no constitutional claim
against Coffee County. Thomas v. City of Columbus, Ohio, 854 F.3d 361, 367 (6th Cir. 2017)
("Because no constitutional violations occurred, the district court properly granted summary judgment
on Mr. Thomas's failure-to-train claim against the city and Chief Jacobs. For a municipality to be
liable under 42 U.S.C. § 1983, a plaintiff must show harm 'caused by a constitutional violation.'"); see
also Murray v. Harriman City, No. No. 3:07–CV–482, 2010 WL 546590, at *7 (E.D. Tenn., Feb. 10,
2010) ("the court has found that the arresting officers did not violate the plaintiff's civil rights;
therefore, plaintiffs have not stated a viable claim for a § 1983 violation against the City of
Harriman.") Therefore, Defendants are entitled to judgment as to Plaintiff's failure to protect claim
asserted in Count I.
b.
Deliberate Indifference to Serious Medical Needs
Plaintiff also alleged in Count I of the Amended Complaint that Coffee County, as well as
QCHC, had acted with deliberate indifference to his serious medical needs in violation of the
Case 4:16-cv-00097-CHS Document 74 Filed 05/20/20 Page 23 of 26 PageID #: 1322
Fourteenth Amendment. The factual basis for this claim against Coffee County is the same as the
factual basis for this claim against QCHC which was dismissed by the District Court. It is not clear
to the Court that Plaintiff concedes he no longer has such a claim against Coffee County. Since the
same factual conducts underpins both claims and the standard of constitutional analysis is the same
for Coffee County as it was for QCHC, the District Court's decision dismissing Plaintiff's claim
against QCHC applies equally to the medical needs claim against Coffee County. See e.g., Whiteside
v. Duke, 2019 WL 2578260, at *4 (W.D. Tenn. 2019) (the court applied the same constitutional
standard for a medical care claim to a private entity providing health care in a prison as it would to a
municipality.) See also Johnson v. Corr. Corp. of Am., 26 F. App'x 386, 388 (6th Cir. 2001); Eads v.
State of Tenn., No. 1:18-cv-00042, 2018 WL 4283030, at *9 (M.D. Tenn. Sept. 7, 2018).
Consequently, to the extent Plaintiff continues to assert it, the Court concludes the Fourteenth
Amendment claim against Coffee County for deliberate indifference to serious medical needs lacks
merit and shall be dismissed.
3. Count IV—Claim Arising from the Event on January 14, 2017
Plaintiff alleges Cody Faust used excessive force when shooting him with a pepperball
launcher on January 14, 2017. The Due Process Clause of the Fourteenth Amendment protects a
pretrial detainee from the use of excessive force that amounts to punishment. Kingsley v. Hendrickson,
135 S.Ct. 2466, 2473 (2015). To prevail on a Fourteenth Amendment excessive force claim, "a pretrial
detainee must show only that the force purposefully or knowingly used against him was objectively
unreasonable. Id. The "objective reasonableness turns on the facts and circumstances of each
particular case." Id. (citation omitted). The Kingsley Court articulated the factors a court must consider
when evaluating such a claim:
A court must make this determination from the perspective of a reasonable officer on
the scene, including what the officer knew at the time, not with the 20/20 vision of
Case 4:16-cv-00097-CHS Document 74 Filed 05/20/20 Page 24 of 26 PageID #: 1323
hindsight. A court must also account for the "legitimate interests that stem from [the
government's] need to manage the facility in which the individual is detained,"
appropriately deferring to "policies and practices that in th[e] judgment" of jail
officials "are needed to preserve internal order and discipline and to maintain
institutional security
Considerations such as the following may bear on the reasonableness or
unreasonableness of the force used: the relationship between the need for the use of
force and the amount of force used; the extent of the plaintiff's injury; any effort made
by the officer to temper or to limit the amount of force; the severity of the security
problem at issue; the threat reasonably perceived by the officer; and whether the
plaintiff was actively resisting. We do not consider this list to be exclusive. We
mention these factors only to illustrate the types of objective circumstances potentially
relevant to a determination of excessive force.
Id. (internal citations omitted) (brackets original).
On January 14, 2017, guards heard—over the intercom in the pod where Plaintiff was
located— some inmates saying they were going to stab someone. Concerned that someone was about
to be seriously injured or killed, the guards assembled to make entry into the pod. The Tower ordered
everyone in the pod to get down on the floor. Faust was advised that some inmates were refusing to
follow the order.4 From the perspective of a reasonable officer, use of the pepperball launcher was
reasonable because:
•
When Faust entered the pod, Plaintiff was still sitting at the table. A
reasonable officer on the scene would have concluded that Plaintiff was
refusing the prior order to get on the floor.
•
Faust had a legitimate institutional interest to maintain order and protect
other inmates. Someone in the pod had a shiv and intended to stab another
inmate. Immediate compliance with the order to get down could prevent
violence.
•
Officers needed the inmates on the floor to safely search for the shiv.
•
A pepperball launcher is nonlethal force. Plaintiffs injuries were relatively
minor—bruises that lasted a few days.
4
Plaintiff stated in his declaration that the pod did not have loudspeakers, but this statement was made in relation to the
pod in which he was incarcerated at the time of the October 11, 2015 assaults. [See Doc. Doc. 70-2, Cretacci Decl. ¶ 5].
He was moved to another pod permanently after the October 11, 2015 assaults.
Case 4:16-cv-00097-CHS Document 74 Filed 05/20/20 Page 25 of 26 PageID #: 1324
•
Use of a pepperball launcher allowed Faust to avoid dangerous direct
contact with a noncompliant inmate who might have a shiv.
•
Plaintiff continued to delay his compliance, standing up, talking back to
Faust, turning around, trying to remove his poncho. Use of the pepperball
launcher again was reasonable for the same reasons listed above.
•
Once Plaintiff got on the ground, Faust did not shoot him again.
In other words, under the circumstances—given the information that Faust had at the time
and the legitimate need to protect inmates from assault by another inmate with a deadly weapon—the
force used by Faust against Plaintiff was not constitutionally excessive. Once again, because there
was no underlying constitutional violation, Plaintiff has no constitutional claim against Coffee
County. Thomas v. City of Columbus, Ohio, 854 F.3d 361, 367 (6th Cir. 2017). Faust and Coffee
County are entitled to judgment as to Count IV.
IV.
Conclusion
For the reasons stated herein, Defendants' Motion for Summary Judgment is GRANTED.
Plaintiff's action shall be dismissed in its entirety and a judgment entered in favor of Defendants.
ENTER.
/s/ Christopher H. Steger
UNITED STATES MAGISTRATE JUDGE
Case 4:16-cv-00097-CHS Document 74 Filed 05/20/20 Page 26 of 26 PageID #: 1325
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