Nissen v. County of Sumner, Tennessee et al

Filing 26

INITIAL CASE MANAGEMENT ORDER: Motion to Amend Pleadings due by 12/6/2013. Discovery due by 2/28/2014. Dispositive Motions due by 7/21/2014. The Plaintiff advised that he was receiving mail from the court and did not need certified mail, as this was causing him extra work. The Clerk will send materials from the court to the Plaintiff by regular mail only. Signed by Magistrate Judge Joe Brown on 10/30/13.(xc:Pro se party by regular mail only.)(DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(dt)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
JUSTIN DANIEL NISSEN,

)
)
Plaintiff
)
)
v.
)
)
COUNTY OF SUMNER, TENNESSEE;
)
SONYA TROUTT; SONNY WEATHERFORD; )
LT. DAVID FITCH; OFFICER DERICK )
CASE; OFFICER RONALD HOPKINS,
)
)
Defendants
)

No. 3:13-0842
Judge Trauger/Brown
Jury Demand

INITIAL CASE MANAGEMENT ORDER
Pursuant to Local Rule 16.01(d)(2), the following Initial
Case Management Plan is adopted.
A.

Jurisdiction: The Court has jurisdiction pursuant to

28 U.S.C. §§ 1331 and 1343.
B.

Brief Theory of the Plaintiff.

To state a claim under § 1983, a plaintiff must allege
that he was deprived of a right secured by the
Constitution or laws of the United States and that the
deprivation was caused by a person acting under color of
state law. West v. Atkins, 487 U.S. 42, 48 (1988); Street
v. Corr. Corp. of Am., 102 F.3d 810, 814 (6th Cir. 1996).
Plaintiff Justin D. Nissen was arrested and taken to the
Sumner County, Tennessee, jail (Jail) with a hand that had recently
been broken. He completed the Sumner County Receiving Screening
Form noting he had a “bad back” and “broke[n] hand.” While bonding
out the same day, August 26, 2012, he was taken from a holding cell
to a cell in classification. Three officers, Case, Hopkins, and

Fitch, were functioning as a shift supervisor, a releasing officer
and an officer on a 15-minute break.
A verbal altercation ensued, and Officers Case, Hopkins,
and Lieutenant Fitch escalated to excessive force in violation of
Plaintiff’s Fourth Amendment Constitutional rights. Henceforth,
when Inmate Nissen bonded out, he left not only with a reinjured
broken hand, but two painfully newly sprained wrists and emotion
distress of the traumatic incident.
According to the officers’ own incident reports, which
conflict in several key areas, they used painful methods to subdue
Plaintiff, constituting illegal excessive use of force:
(1) a pile of officers ‘wrestled’ on the floor with
Plaintiff;; (20 putting a right arm in a ‘key lock’ and
then applying more pressure to achieve pain compliance;
(3) locked his right arm behind his back; (4) put his
right arm in a ‘chicken wing’ hold; (5) grabbed his left
arm; (6) placed his left wrist in a ‘wrist lock’; (7) put
him in a ‘guillotine choke hold’ securing left arm; (8)
escorted him to the ground; (9) put left arm and hand in
a ‘pressure hold’; (10) took him to the ground with hands
behind his back with nothing to break his fall; (11)
pushed him against a wall; and (12) pointed a can of
chemical weapon in his face.
Sumner County Jail Officer Incident Reports.
Officers were unaware or sadistically disregarded the
vital medical information on the screening form, ignored his
repeated

screams

deliberately,

that

wantonly

they
in

were

reckless

hurting
disregard

him.
of

They

were

Plaintiff’s

physical safety and rights, not merely negligent. Only the force
necessary to bring the situation under control should have been
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used. Plaintiff responded to an officer pointing a can of deep
freeze. Officers should have handcuffed the Plaintiff and locked
him in a cell, or resorted to the chemical weapon earlier. The
tactics

used

did

not

bring

the

situation

under

control,

it

escalated the conflict and caused physical and emotional harm to
the Plaintiff.
Plaintiff has exhausted all administrative remedies. The
Jail’s

internal

investigation

was

superficial,

yielding

no

satisfaction. Jail staff denied requested discovery information
pretrial, i.e., security camera tapes, which would have documented
the brutality. Allegedly, just a few of the numerous security
cameras in the area were operation al at the time of attacks, or
without sound. Plaintiff demands judgment for compensatory and
punitive damages for the unskillful, sadistic excessive use of
force doled out by Officers Case, Hopkins, and Lieutenant Fitch,
which shocks the conscience.
C.

Defendants’ Theory of the Case. The Defendants admit

that on August 25, 2012, Plaintiff was brought into the Sumner
county Jail. The Defendants further admit that on his Receiving
Form, Plaintiff stated he had a “broke hand” and also a “bad back.”
On August 26, 2012, Plaintiff was housed behind the
releasing officer. At this time, Plaintiff was verbally abusive to
the officers and was acting out in his cell. Defendant Fitch
informed Plaintiff to be quiet, but Plaintiff refused. Defendant

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Fitch also informed Plaintiff that if he continued to be verbally
abusive, he would be moved to the classification area. Plaintiff
continued to be verbally abusive despite being told to cease such
behavior.
Because of Plaintiff’s abusive behavior, the Defendants
tried to move him to the classification area. During the move,
Plaintiff continued his verbal abuse and also began to behave
aggressively.

Plaintiff tried to kick one of the officers. In

doing so, Plaintiff’s shorts fell to his ankles, which caused him
to trip and fall to the ground.
While on the ground Plaintiff continued his aggressive
behavior. Plaintiff was brought back to his feet, but he continued
to scream and try and kick the officers and Defendants. Because of
Plaintiff’s aggressive behavior, he was taken to the floor. Despite
this, Plaintiff continued to resist until he was shown a can of the
chemical spray the correctional officers use to obtain compliance.
Plaintiff was never sprayed with the chemical agent.
The Defendants did not violate Plaintiff’s constitutional
rights. Plaintiff’s aggressive behavior caused the Defendants to
use the least amount of force necessary to protect themselves from
Plaintiff’s attempts at violence. Further, the Defendants state
that Plaintiff did not suffer any injuries as alleged in his
complaint.

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Defendants Troutt and Weatherford have filed a Motion for
Failure to State a Claim. As Plaintiff’s complaint makes no
allegations against them, the Defendants believe such a motion is
proper.
D.

Issues Resolved. Jurisdiction and venue.

E.

Issues Still in Dispute. Liability and damages.

F.

Initial Disclosures. Will not apply.

G.

Discovery. The parties shall The parties shall

complete all written discovery and depose all fact witnesses on or
before

February

28,

2014.

Discovery

is

not

stayed

during

dispositive motions, unless ordered by the Court. Local Rule
9(a)(2)

is

expanded

to

allow

40

interrogatories,

including

subparts. No motions concerning discovery are to be filed until
after the parties have conferred in good faith and, unable to
resolve their differences, have scheduled and participated in a
conference telephone call with Magistrate Judge Brown.
H.

Motions to Amend. The parties shall file all motions

to amend on or before December 6, 2013.
I.

Disclosure of Experts. The Plaintiff shall identify

and disclose all expert witnesses and expert reports on or before
April 1, 2014. The Defendants shall identify and disclose all
expert witnesses and reports on or before May 1, 2014.

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J.

Depositions of Expert Witnesses. The parties shall

depose all expert witnesses on or before June 20, 2014.
K.

Joint Mediation Report. The parties shall submit a

joint mediation report on or before June 2, 2014.
L.

Dispositive Motions. Dispositive motions will be

filed on or before July 21, 2014. Responses to dispositive motions
shall be filed within 28 days after service.
exceed 25 pages without leave of Court.

Briefs shall not

Optional replies, limited

to five pages, shall be filed within 14 days after service of the
response. If dispositive motions are filed early, the response and
reply dates are moved up accordingly.
Plaintiff is forewarned that dispositive motions must be
responded to by the dates stated, unless an extension is granted by
the Court, and that failure to respond timely may result in the
Court taking the facts alleged in the matter as true and granting
the relief requested.
on his complaint.

In responding, Plaintiff may not just rely

Plaintiff must show there is a material dispute

of fact with citation to the record, affidavits or other matter of
evidence.

Plaintiff should read and comply with Federal Rule of

Civil Procedure 56 and Local Rule 56.01.
M.

Electronic

Discovery.

The

parties

have

reached

agreements on how to conduct electronic discovery. Thus, the
default standard contained in Administrative Order 174 need not

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apply to this case. The Defendants have agreed to provide the video
surveillance tapes of the incident subject to a protective as
necessary to protect jail security.
N.

Miscellaneous Items. The Plaintiff advised that he

was receiving mail from the court and did not need certified mail,
as this was causing him extra work. The Clerk will send materials
from the court to the Plaintiff by regular mail only. The Plaintiff
is cautioned that he must keep a current address on file with the
Clerk at all times. Failure to maintain contact with the Clerk’s
office could result in a recommendation that his case be dismissed
for failure to prosecute and obey court orders.
O.

Trial. This jury trial is estimated to take two days

and a trial date on or after December 8, 2014, is recommended.
Judge Trauger will issue a separate order setting the date for
trial and her requirements. The Magistrate Judge will set a date
for the final pretrial conference and his requirements once the
trial date is set.
It is so ORDERED.
/s/ Joe B. Brown
JOE B. BROWN
United States Magistrate Judge

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