Smith v. Cumberland County, Tennessee et al

Filing 17

INITIAL CASE MANAGEMENT ORDER: The Jury Trial is set for 12/15/2015 at 9:00 AM and the Pretrial Conference is set for 12/7/2015 at 1:30 PM, both to take place in Cookeville before District Judge Kevin H. Sharp. Motions to Amend due by 1/15/2015. Discovery due by 4/1/2015. Dispositive Motions due by 7/15/2015. Counsel should read the order in its entirety for all other deadlines and information. Signed by District Judge Kevin H. Sharp on 8/4/2014. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(ds)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
TONY LEE SMITH, as next friend and father
of ASHLEY LAUREN SMITH, a minor, and
MICHAEL ANTHONY SMITH, children of
Decedent, ANGELA DARLENE SMITH,
Plaintiff
VERSUS
CUMBERLAND COUNTY, TENNESSEE,
operating the Cumberland County Sheriff’s
Department, BUTCH BURGESS, individually
and in his capacity as Sheriff of Cumberland
County, DEPUTY SHERIFF DUSTIN
HENSLEY, individually and in his capacity as
a Deputy with the Cumberland County
Sheriff’s Department and DEPUTY DOES
ONE through TEN, individually and in their
capacities as Deputies with the Cumberland
County Sheriff’s Department;
CITY OF CROSSVILLE, TENNESSEE,
operating the Crossville Police Department;
DAVID BEATY, individually and in his
Capacity as Chief of Police for the
Crossville Police Department; and OFFICER
DOES ONE through TEN, individually and in
their capacities as Officers with the Crossville
Police Department,
Defendants.

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IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
TONY LEE SMITH, as next friend and father
of ASHLEY LAUREN SMITH, a minor, and
MICHAEL ANTHONY SMITH, children of
Decedent, ANGELA DARLENE SMITH,
Plaintiff
VERSUS
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CUMBERLAND COUNTY, TENNESSEE,
operating the Cumberland County Sheriff’s
Department, BUTCH BURGESS, individually
and in his capacity as Sheriff of Cumberland
County, DEPUTY SHERIFF DUSTIN
HENSLEY, individually and in his capacity as
a Deputy with the Cumberland County
Sheriff’s Department and DEPUTY DOES
ONE through TEN, individually and in their
capacities as Deputies with the Cumberland
County Sheriff’s Department;
CITY OF CROSSVILLE, TENNESSEE,
operating the Crossville Police Department;
DAVID BEATY, individually and in his
Capacity as Chief of Police for the
Crossville Police Department; and OFFICER
DOES ONE through TEN, individually and in
their capacities as Officers with the Crossville
Police Department,
Defendants.

) CASE NO. 2:14-00061
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INITIAL CASE MANAGEMENT ORDER

Pursuant to Federal Rule of Civil Procedure 26 and Local Rule 16.01, the
following Initial Case Management plan is adopted.

A. JURISDICTION.
The Plaintiff’s Complaint alleges causes of action and violations of the
Plaintiff’s civil rights pursuant to 42 U.S.C. § 1983. The claim arises as a result of an
episode that occurred in Cumberland County, Tennessee when Plaintiff’s decedent was
pursued by law enforcement personnel from the City of Crossville and Cumberland
County, Tennessee and was ultimately shot and killed. The Plaintiff has also instituted
suit in the Circuit Court of Cumberland County, Tennessee, which has been removed to
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this Court (Case No. 2:14-00061) and which all parties agree should be consolidated with
this action. All claims, both state and federal, arise out of the same incident and involve
the same parties.
The District Court has jurisdiction to hear all claims.

B. BRIEF THEORIES OF THE PARTIES.
1. Plaintiff’s theory of the case:
Plaintiffs are the next of kin of decedent Angela Darlene Smith. Plaintiffs would show that
decedent was a loving mother and grandmother and a contributing member of her family and
community. On May 29, 2013, decedent’s life was cut short when she was struck by two Taser
probes and then shot at least ten (10) times in the back by an unidentified member of Defendant
law enforcement agencies. Plaintiffs were not at the scene of this deadly shooting and have been
unable to obtain discovery of many facts at this point, but Plaintiffs assert that firing over ten
shots into the back of a woman who had previously been struck by two Taser probes is an
excessive and unreasonable use of force which violated decedent’s constitutional rights and
indicates a failure to properly hire, instruct, train, supervise and control the law enforcement
personnel involved. Decedent died wrongfully due to assault, battery, and use of excessive and
deadly force by officers whose duty is to protect and serve.

2. Defendants’ theory of the case:
Cumberland County; Butch Burgess; Deputy Sheriff Dustin Hensley; and
Cumberland County Sheriff’s Department Deputies Does 1 through 10 theory:
Defendants, Cumberland County, Tennessee, Sheriff Butch Burgess, individually and in
his capacity as Sheriff of Cumberland County, and Deputy Sheriff Dustin Hensley, individually
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and in his capacity as a Deputy with the Cumberland County Sheriff’s Department , deny that
they are liable to the Plaintiff under any theory.
Defendants did not violate any constitutional right of decedent, Angela Smith. Any
injuries alleged in Plaintiff’s Complaint are the result of the decedent’s own actions, therefore
barring Plaintiff from any recovery from the Defendants.
Defendants aver that the decedent, Angela Smith, fired shots at Crossville Police
Department officers investigating reports of a prowler, and then fled the scene in a stolen
vehicle.

Deputies with the Cumberland County Sheriff’s Department, including Deputy

Hensley, responded to the Crossville Police Department’s request for backup in the pursuit of
Angela Smith. While attempting to evade the officers, Angela Smith drove off the road and into
a ditch. Officers surrounded Smith’s vehicle, and a Tennessee Highway Patrol officer broke out
the window of the vehicle. Deputy Hensley deployed his Taser in an attempt to gain control of
Smith, but it had no apparent effect. Smith had a gun in her hand and ignored the lawful
commands of the officers to drop her weapon. Angela Smith then pointed a gun at the officers,
and Deputy Hensley shot her.
Defendants aver that Deputy Hensley reasonably believed that Angela Smith’s actions
posed an immediate threat of death or serious bodily injuries to Deputy Hensley and all officers
on the scene. Deputy Hensley’s use of force was justified under the circumstances. Deputy
Hensley used necessary and reasonable force against Angela Smith, and his actions were
reasonable and necessary in order to protect himself and the other officers from Smith.
Defendant Deputy Hensley acted in good faith in discharging his duties and acted
reasonably under the circumstances that existed at the time of the complained of incident.
Defendants Deputy Hensley and Sheriff Burgess did not violate any civil rights of Angela Smith,
and they are therefore entitled to qualified immunity from liability in this action. Defendants aver
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that no act or omission on the part of the employees of Cumberland County violated a clearly
established or particularized constitutional right of Angela Smith.

Defendants deny any

allegation of inadequate or negligent training, hiring or supervision.
Defendant Sheriff Burgess was not present during any of the events giving rise to this
suit, and he had no involvement in the same. Thus, any claims against Sheriff Burgess in his
individual capacity should be dismissed. The claims against Defendants Deputy Hensley and
Sheriff Burgess in their official capacities are essentially claims against Defendant Cumberland
County, which is already a named party to this action, and such claims should be dismissed.
The Defendants assert that there is no vicarious liability or respondeat superior theory of
recovery against Cumberland County, Tennessee pursuant to 42 U.S.C. § 1983, and assert that
liability under § 1983 may not be imposed on a municipal governmental entity merely because it
employed an individual who is alleged to have engaged in some form of unconstitutional
conduct. Defendants deny that any alleged violation of the constitutional rights of Angela Smith
was the cause or a result of, an official policy or custom of Cumberland County and aver that the
Plaintiff has failed to plead facts to support the claim that a policy or procedure of Cumberland
County, Tennessee, caused the alleged injuries.
Should the Court exercise supplemental jurisdiction over the Plaintiff’s state law claims,
the same must be in accordance with the Tennessee Governmental Tort Liability Act
(“TGTLA”). Defendants are entitled to all defenses and immunities available under the TGLTA.
Defendants deny that any employee of Cumberland County committed any tort or acted
negligently or recklessly at any time related to the complained of incident.

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3. Defendant’s theory of the case:
City of Crossville, Tennessee; City of Crossville Police Chief David Beaty;
and City of Crossville Police Officers Does 1 through 10’s theory:
It is denied that the City of Crossville had an unconstitutional custom, practice, or
policy, or is in any way legally liable to the Plaintiff on any theory whatever. It is denied
that the City of Crossville was guilty of any negligence that resulted in any cause of
action in favor of the Plaintiff.
David Beaty, the Police Chief of the City of Crossville, was not personally present
at the scene of the pursuit and the arrest of Plaintiff’s decedent and had no personal
involvement in same. There is no respondeat superior liability pursuant to claims made
under 42 U.S.C. § 1983, and David Beaty, an employee of the City of Crossville, is
entitled to total personal immunity pursuant to the provisions of the Tennessee
Governmental Tort Liability Act. David Beaty was not deliberately indifferent toward
the training of any of his police officers.
In the alternative, David Beaty, individually, pleads the doctrine of qualified
immunity.
All of the Officers with the City of Crossville Police Department that were
involved in the incident which gives rise to this suit acted appropriately and were not
guilty of any act that violated nay of Plaintiff’s decedent’s constitutional rights or any
other rights whatever. They were not guilty of any state torts.
No employee or officer with the City of Crossville Police Department discharged
their firearm, nor deployed their taser. No individual with the City of Crossville Police
Department physically touched or harmed the Plaintiff’s decedent in any way until after
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the incident was concluded and her body was removed by the vehicle she was driving in
the pursuit.
In the alternative, all individual officers with the City of Crossville Police
Department plead the doctrine of qualified immunity.
Plaintiff’s decedent, Angela Darlene Smith, broke into several homes in the
Camelot Subdivision located in Crossville, Cumberland County, Tennessee. She stole a
pistol; stole keys to a car; and led the City of Crossville Police Officers on a pursuit down
Highway 70. During the pursuit of Angela Darlene Smith on foot in the Camelot
Subdivision, Angela Darlene Smith fired two shots from the pistol which she had stolen
at two City of Crossville Police Officers.
Officers with the City of Crossville Police Department pursued the Plaintiff’s
decedent through yards in the Camelot Subdivision and onto city streets in the City of
Crossville and ultimately onto Highway 70 West toward Sparta. During this pursuit
Officers from the Cumberland County Sheriff’s Department joined in the pursuit and two
vehicles passed the City of Crossville Police units and the Plaintiff’s decedent’s vehicle.
Shortly thereafter the Plaintiff’s decedent attempted to turn right onto a road to
further evade the officers. At that time her car left the roadway. Officers with the City of
Crossville Police Department surrounded the vehicle but, as stated, did not fire their
firearms, nor deploy their tasers. At that time a Tennessee Highway Patrol Officer broke
the window of the Plaintiff’s decedent’s vehicle. Deputy Sheriff Hensley attempted to
deploy his taser. Upon information and belief, it was ineffective. Upon information and
belief, Angela Darlene Smith then picked up the pistol and pointed it at Tennessee
Highway Patrol Officer Seitner. When she did so, upon information and belief, Deputy
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Sheriff Hensley shot her to defend himself and Highway Patrol Officer Seitner from
Plaintiff’s decedent’s anticipated use of her pistol.
After Angela Darlene Smith was shot and apparently deceased, an Officer with the
City of Crossville Police Department removed her from the vehicle, and she was
pronounced dead.
It is denied that any employee of the City of Crossville or any Officer with the
City of Crossville Police Department committed any state tort or violated Plaintiff’s
decedent’s constitutional rights in any way.

No force whatever was used against

Plaintiff’s decedent by any employee or officer with the City of Crossville Police
Department.
C.

ISSUES RESOLVED:

Jurisdiction and venue.

D.

ISSUES STILL IN DISPUTE:

All issues arising out of this cause of

action remain disputed.
E.

INITIAL DISCLOSURES. The parties shall exchange initial disclosures

pursuant to Fed. R. Civ. P. 26(a)(1) on or before
F.

.

DISCOVERY. All written discovery and depositions of all fact witnesses

shall be completed on or before April 1, 2015. Discovery is not stayed during dispositive
motions, unless ordered by the court. Discovery motions are to be filed in accordance
with the practice of the magistrate judge who will resolve any dispute(s).
G.

MOTIONS TO AMEND. The parties shall file all motions to amend on or

before January 15, 2015.
H.

DISCLOSURE OF EXPERTS. The Plaintiff shall identify and disclose all

expert witnesses and expert reports on or before January 15, 2015. The Defendant shall
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identify and disclose all expert witnesses and expert reports on or before March 15,
2015.
I.

DEPOSITIONS OF EXPERT WITNESSES:

The parties shall depose all

expert witnesses on or before May 15, 2015.
J.

JOINT MEDIATION REPORT: The parties shall file a joint mediation

report on or before June 1, 2015.
K.

DISPOSITIVE MOTIONS: The parties shall file all dispositive motions on

or before July 15, 2015. Responses to dispositive motions shall be filed within twenty
(20) days after the filing of the motion. Optional replies may be filed within ten (10)
days after the filing of the response. Briefs shall not exceed twenty-five (25) pages. No
motion for partial summary judgment shall be filed, except upon leave of the Court. Any
party wishing to file such a motion shall first file a separate motion that gives justification
for filing a partial summary judgment motion, in terms of overall economy of time and
expenses for the parties, counsel and the court.
L.

ELECTRONIC DISCOVERY: The parties have reached an agreement on

how to conduct electronic discovery. Therefore, the default standard contained in the
Administrative Order No. 174 need not apply to this case.
M.

ESTIMATE TRIAL TIME:

The parties expect the trial to last

approximately 4 days.
This case is set for trial
It is so ORDERED.
__________________________
JUDGE KEVIN SHARP

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APPROVED FOR ENTRY BY:

s/MICHAEL D. GALLIGAN, BPR #003181
Michael D. Galligan
Howard Upchurch
GALLIGAN & NEWMAN
Attorneys for Plaintiffs
309 West Main Street
McMinnville, TN 37110
[phone]

S/DANIEL H. RADER, III, BPR #002835
Daniel H. Rader, III
MOORE, RADER AND FITZPATRICK, P.C.
Attorneys for Defendants,
City of Crossville; David E. Beaty; and
City of Crossville Police Officers
John Does 1 through 10
P. O. Box 3347
Cookeville, TN 38502
[phone]

S/MARK NOLAN, BPR #015859
Mark Nolan
Kathryn W. Olita
BATSON NOLAN PLC
Attorneys for Defendants,
Cumberland County;
121 South Third Street
Clarksville, TN 37040
[phone]

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