Davis et al v. Patel et al

Filing 12

INITIAL CASE MANAGEMENT ORDER. Signed by Magistrate Judge Joe Brown on 5/28/14. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(dt)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
MICHAEL JOSEPH SMITH, IV,
HEATHER SMITH n/o/k for
MICHAEL SMITH, deceased,
Plaintiffs
v.
CHAD BARTH, Officer;
METROPOLITAN GOVERNMENT
OF NASHVILLE & DAVIDSON
COUNTY, TENNESSEE,
Defendants

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No. 3:11-CV-0368
Judge Nixon/Brown
Jury Demand

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

Jurisdiction and Venue:

The District Court for the Middle District of

Tennessee has jurisdiction pursuant to 28 U.S.C. § 1331, as this is a civil action arising
under the Constitution and/or laws of the United States. Jurisdiction is also proper
pursuant to 28 U.S.C. § 1332, as (1) living plaintiffs are citizens of a State other than
Tennessee, whereas (2) defendant Barth is a citizen of Tennessee, residing in Davidson
County, and defendant Metropolitan Government is a government entity in Davidson
County, Tennessee, and (3) the amount in controversy exceeds $75,000. Additionally,

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the primary events upon which this lawsuit is based occurred in Davidson County,
Tennessee, so that venue is proper.
II.

Parties’ Theories of the case:
a.

Plaintiff’s theory

In April 2010 the plaintiff was a law office runner for Document Technologies
Inc. Smith was assigned to the office of Wyatt, Tarant & Combs, Gilbert & Milom
(hereinafter referred to as “the firm”) in Nashville. The plaintiff was a good and reliable
employee, and was well-regarded by his supervisor and other employees at the firm.
The plaintiff was given a credit card in the law firm’s name and which was
provided to the plaintiff so that the plaintiff could purchase supplies for the firm. There
were no written or verbal restrictions on the use of the credit card given to the plaintiff.
He was routinely asked to purchase personal items for staff, and he was permitted to
purchase a cell phone on the firm card which was used for firm business.
On or about April 25, 2010, the plaintiff was undergoing some personal
problems, and took a few days off, utilizing the firm’s credit card to purchase a ticket to
Miami, Florida. On Tuesday, April 27, 2010, the plaintiff was contacted by employees of
the firm, and told he needed to return to Nashville with the credit card.
On Wednesday, April 28, 2010, the plaintiff returned to Nashville and was
driving to the law firm’s office with the intention of returning the firm’s credit card and
paying personally for the charges made on the firm credit card. When the plaintiff
arrived at the firm’s parking garage, he was confronted by Officer Barth. Officer Barth

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apparently was responding to a report of a credit card theft. Officer Barth immediately
approached the plaintiff and told him to get out of the car, that he needed to speak with
the plaintiff. The plaintiff exited his vehicle in compliance, and Officer Barth said the
plaintiff was under arrest. . The plaintiff said “for what?” Officer Barth replied “I don’t
have to tell you.” The plaintiff was not advised what he was under arrest for. The
plaintiff had committed no crime, and had threatened no one. There were no exigent
circumstances warranting the plaintiff’s arrest or detention.
The plaintiff re-entered his car, started the car, and began to pull out of the
parking space to leave. Officer Barth pulled out his weapon and pointed it at the
plaintiff, causing him to fear for his life. As the plaintiff pulled his car out to leave, Barth
fired several times at the plaintiff’s car. A bullet struck him in the mid back area,
rendering him a quadraplaegic and he ultimately died. The plaintiff was arrested and
charged with aggravated assault and was held in the special needs facility with the
Tennessee Department of Correction. He requires constant medical care. He was
subsequently indicted for attempted first degree murder and credit card fraud. The
plaintiff eventually died. He has incurred medical expenses and lost his life as a result
of the shooting
Defendant Chad Barth’s careless and wanton use of his weapon to fire on the
plaintiff – who was suspected of no serious crime – violated the plaintiff’s civil rights
protected under 42 U.S.C. 1983, and the Civil Rights Act of 1962, and constituted
deliberate indifference to the rights and privileges afforded citizens of this country.

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The defendant Chad Barth was either trained improperly, or ignored his training
when exercised deadly force to attempt to arrest the plaintiff. The actions of defendant
Chad Barth violated official policies regarding the use of deadly force. The actions of
the defendant Barth in using deadly force, in ignoring his own training and in violating
the Police Department’s own policies, constitutes deliberate indifference, and was the
direct and proximate cause of the injuries suffered by the plaintiff.
Defendant Metropolitan Nashville Davidson County Government, as an
additional claim, is liable for the violation of the civil rights of the plaintiff by failing to
properly train the defendant Barth in the use of deadly force, or in initiating a deadly
force policy which is ignored by police officers or in violation of persons’ civil rights.
b.

Defendant Metropolitan Government’s Theory of the Case

No conduct alleged in the Complaint rises to the level of a constitutional
violation. Further, no custom, policy, or practice of the Metropolitan Government was
the moving force behind any alleged injury in this case. The Metropolitan Government
has not been deliberately indifferent in failing to properly train its employees, and
Plaintiff sets forth no well-pleaded factual allegations to the contrary. Likewise, the
Metropolitan Government’s use of force police is constitutionally sound.
c.

Defendant Chad Barth’s Theory of the Case

Chad Barth’s decisive action protected innocent civilians, and himself, from the
significant risk of serious bodily injury and death.

Michael Smith’s criminal and

dangerous actions required that Chad Barth utilize deadly force.

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Chad Barth is entitled to qualified immunity for his split second yet objectively
reasonable decision to fire upon Michael Smith. He did not violate any constitutional
right of Michael Smith. Michael Smith did not possess the constitutional rights to refuse
arrest, to drag a police officer by his car door, and to attempt to flee at a high rate of
speed in a public parking lot where multiple innocent civilians were present and placed
in danger.

No clearly established constitutional right of Michael Smith was violated.

Chad Barth acted in an objectively reasonable manner under the totality of the
circumstances.
III.

Major Issues in Dispute

1.

Is Chad Barth entitled to qualified immunity from suit? This involves two

sub-issues:
a.

Did Michael Smith have a the constitutional right not to be shot,

when he refused to be arrested and instead fled from arrest in a motor vehicle in
a public parking garage, and in so doing knocked Chad Barth to the ground with
his car door?
b.

If Michael Smith had such a constitutional right not to be shot, was

such right clearly established?
2.

If Chad Barth does not have qualified immunity, did he nonetheless act in

an objectively reasonable manner in light of the totality of the circumstances when he
shot Michael Smith?

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3.

IF Chad Barth’s conduct in fact violated a constitutional right of Michael

Smith, was his unconstitutional conduct the product of a custom, practice or policy of
defendant Metropolitan Government, such that the government entity can be held liable
pursuant to the Monnell doctrine?
IV.

Stipulations

The parties anticipate that relevant business records will be stipulated to.
V.

Schedule of Pretrial Proceedings:
a.

Bifurcation of Discovery Process

So as to limit potentially unnecessary expenses, discovery will be bifurcated so
that liability discovery can be promptly completed.

Damages discovery will only

commence should this case survive summary judgment and proceed towards trial.
1.

Rule 26(a) disclosures regarding liability

In the recently dismissed State case, Rule 26(a) disclosures were completed. Any
supplemental disclosures, including disclosure of additional experts, regarding liability,
shall be made no later than June 27, 2014.
2.

Deposition of Fact and Expert Witnesses

Many of the fact witnesses were deposed as part of the related State case,
however a few fact witnesses need to be deposed. Expert witnesses were not deposed
as part of the related State case. Depositions of the experts and any other witnesses
regarding liability shall be completed no later than September 26, 2014.

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3.

Dispositive Motions

Dispositive motions shall be filed no later than November 17, 2014. Responses to 
dispositive motions shall be filed within 28 days after service. Briefs shall not exceed 25 
pages  without  leave  of  Court.  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.
b.

Scheduling following dispositive motions

Should a portion of the case survive dispositive motions, the Magistrate Judge
will promptly set a scheduling conference to set a date for completion of liability
discovery and set a trial date.
c.

Requests for admission

The parties may serve appropriate requests for admission throughout the
discovery process.
VI.

Disputes regarding discovery and subsequent case management

conferences
Prior to the filing of any motions related to discovery disputes, the aggrieved
party shall take the initiative to schedule a telephone conference with the Magistrate
Judge. It is the responsibility of the aggrieved party to check with counsel for the other
parties and determine their availability.

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Any party may move, if the conditions warrant, for a new case management
conference. In such case, the moving party shall consult with counsel for the other
parties to determine their availability.
VII.

Alternative Dispute Resolution

Alternative dispute resolution does not seem appropriate at this time.
parties may revisit this issue following resolution of dispositive motions.
It is so ORDERED.
/s/ Joe B. Brown
Joe Brown
United States Magistrate Judge

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