Oxendine v. Wilson County Sheriff's Employees et al

Filing 17

REPORT AND RECOMMENDATION re 14 MOTION for Summary Judgment filed by f/n/u Lanus. The Magistrate Judge RECOMMENDS that the motion for summary judgment ( 14 ) be GRANTED and that this case be DISMISSED with prejudice. The Magistrate Judge further RE COMMENDS that any appeal from a dismissal of this case not be certified as taken in good faith. Signed by Magistrate Judge Joe Brown on 1/9/19. (xc:Pro se party by regular mail.) (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(gb)

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
DEBORAH F. OXENDINE,

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Plaintiff,
v.
WILSON COUNTY SHERIFF’S
EMPLOYEES, et al.,
Defendants.
TO:

NO. 3:17-cv-1459
Chief Judge Crenshaw/Brown
JURY DEMAND

The Honorable Waverly D. Crenshaw, Jr.,
Chief United States District Judge
REPORT AND RECOMMENDATION
For the reasons stated below, the Magistrate Judge RECOMMENDS

that the pending motion for summary judgment (Docket Entry 14) be
GRANTED,

and

that

this

case

be

DISMISSED

with

prejudice.

The

Magistrate Judge further RECOMMENDS that any appeal from such a
dismissal not be certified as taken in good faith.
BACKGROUND
The plaintiff in this matter filed a complaint against Sgt.
Lianus (Docket Entry 1) on November 15, 2017. In her complaint,
plaintiff alleges that on November 18, 2016, she was booked into the
Wilson County Jail. She alleges that shortly thereafter, she passed
out due to blood pressure and blood sugar problems and hit her head
on the concrete floor. She was examined by medical staff and
determined to be alright. The plaintiff was then placed in a holding
cell because the jail officials and medical staff decided she was on
drugs. The plaintiff alleges that the holding cell she was placed in
had no running water and that she was periodically moved to another

cell with no running water, causing difficulty drinking and using the
bathroom. The plaintiff alleges that she was not on any type of drugs
and was not taking any medication other than that prescribed by her
doctors. She alleges that various jail officials would come by her
cell calling her names and would not let her get any rest. The
plaintiff alleges that her blood pressure was at stroke stage, well
over 200, but that the jail officials continued to harass her. She
alleges that sometime later she was in her cell trying to rest when
the defendant, Sgt. Lianus, came to her door with medical and made
statements to Medical Officer Shehan that he would show her how to
handle inmates like the plaintiff. The plaintiff alleges that she had
her hands at her side and that Sgt. Lianus came at her prompting her
to raise her hands to shoulder height. She claims that Sgt. Lianus
then grabbed her and pushed her toward the bed. The plaintiff alleges
that at that time she thought she was going to fall and grabbed hold
of defendant Lianus’ shirt. The plaintiff alleges that Sgt. Lianus
then trapped her hand and wrist behind the bed and maced her while
Officer Neal placed handcuffs on her left hand. She alleges that
defendant Lianus placed extreme pressure on her hand and wrist and
she subsequently sustained injury that resulted in her having an
operation on her hand and wrist. The plaintiff alleges that, as of
the date of the complaint, she still has extreme pain with very
little use of her hand.
The

plaintiff

submitted

with

her

complaint

a

bill

for

approximately $56,000.00 for surgery she had on the hand and wrist.
She finally alleges that medical records would show that she had to

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wait some 12 hours before she was taken to an outside doctor where,
she contends, the officers told the doctors that 40 inmates stomped
on her hand. Attached to the plaintiff’s complaint is a bill for
outpatient services from November 27 - November 28, 2016, for
$56,167.68 (Docket Entry 1, Page ID 10).
After review by the District Judge, the case was allowed to
proceed and was referred to the undersigned Magistrate Judge for case
management and a Report and Recommendation (Docket Entry 7). Service
of process was obtained on Sgt. Lianus and he filed an answer on
March 28, 2018 (Docket Entry 13). In his answer, he denied all
claims.
Unfortunately, a scheduling order was not entered following the
filing of an answer. However, the plaintiff was cautioned in the
original order concerning her case (Docket Entry 7) that she would
need to identify any additional defendants and would need to take
action within 90 days of filing her complaint because of the statute
of limitations. The next event in the case was the filing of a motion
for summary judgment by Sgt. Lianus on November 19, 2018 (Docket
Entry 14). This motion was accompanied by an attached statement of
material facts, a memorandum of law, a declaration of Sgt. Lianus
under oath, and a declaration by Officer Clarence Neal setting forth
his version of the incident with the plaintiff.
On November 21, 2018, a scheduling order was entered with
specific directions to the plaintiff on responding to the pending
motion for summary judgment (Docket Entry 16). In that order, the
plaintiff was forewarned that a dispositive motions must be responded

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to within 28 days unless an extension was granted by the Court
(Docket Entry 16, Page ID 70). She was further warned that failure
to respond to the motion and statements of fact may result in the
Court taking the facts alleged in the matter as true and granting the
relief requested. The plaintiff was told that she could not simply
rely on her complaint, but that she must show there was a material
dispute of fact with citation to the record, affidavits, or other
matters of evidence, and she was referred to Federal Rules of Civil
Procedure 56 and Local Rules 56.01. The plaintiff was specifically
told that if a dispositive motion was filed before the dispositive
motion

deadline,

the

response

and

reply

dates

were

moved

up

accordingly. That order was sent to the plaintiff by regular mail and
has

not

been

returned

as

of

the

date

of

this

Report

and

Recommendation.
LEGAL DISCUSSION
Even

though

the

plaintiff

has

not

responded

to

the

statement of material facts nor to the motion itself, the Court must
nevertheless carefully review the motion for summary judgment to
ensure that the defendants have established that there is no disputed
material facts that would prevent the granting of the motion. Since
the plaintiff did not respond to the statement of material facts
(Docket Entry 14-1), they are taken as undisputed to the extent they
are supported by evidence in the record. In this case, the statement
of material facts are supported by the affidavits of Sgt. Lianus and
Officer Neal. The plaintiff’s complaint was not verified and the
plaintiff

has

unfortunately

failed

4

to

submit

an

affidavit

in

opposition or any response to the motion. Although Rule 56 would
allow the plaintiff to request additional time for discovery, and the
time for discovery in the case is not closed, the plaintiff has taken
no responsive action whatsoever in this matter.
STANDARD OF REVIEW
Summary judgment is appropriate when the record viewed in the
light most favorable to the nonmoving party reveals that there is no
genuine issue as to any material fact and the moving party is
entitled to judgment as a matter or law. Fed.R.Civ.P. 56(c). Where
the moving party has carried its burden under Rule 56(c), the
plaintiff in this case must do something more than simply show there
is some possible doubt as to the material facts. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 247-48 (1986). In order to establish
liability, the plaintiff must show that Sgt. Lianus used excessive
force against the plaintiff. In this case, the evidence, which
consists

of

the

affidavits

of

Sgt.

Lianus

and

Officer

Neal,

constitutes the admissible evidence in the matter. Unfortunately, the
plaintiff has simply failed to respond to the motion with an
affidavit of her own or to any other evidence which would contradict
the two affidavits submitted.1
Unfortunately, given the plaintiff’s total lack of response to

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It would have been helpful if, in support of statement 18
(Docket Entry 14-1, Page ID 50), the medical records concerning
the nurses checking and clearing the plaintiff of all injuries
were attached. It does appear that the plaintiff was billed over
$56.000.00 for hospital outpatient services for treatments
received one and two days after the incident complained of in the
jail.

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the motion for summary judgment, the Magistrate Judge must conclude
that the motion is well taken and should be granted.
RECOMMENDATION
For the reasons stated above, the Magistrate Judge RECOMMENDS
that the motion for summary judgment (Docket Entry 14) be GRANTED and
that this case be DISMISSED with prejudice. The Magistrate Judge
further RECOMMENDS that any appeal from a dismissal of this case not
be certified as taken in good faith.
Under Rule 72(b) of the Federal Rules of Civil Procedure, any
party has

fourteen (14) days

from receipt of this Report and

Recommendation within which to file with the District Court any
written objections to the proposed findings and recommendations made
herein. Any party opposing shall have fourteen (14) days from receipt
of any objections filed regarding this Report within which to file
a response to said objections. Failure to file specific objections
within

fourteen

(14)

days

of

receipt

of

this

Report

and

Recommendation may constitute a waiver of further appeal of this
Recommendation. Thomas v. Arn, 474 U.S. reh’g denied, 474 U.S. 1111
(1986).
ENTERED this 9th day of January, 2019.

/s/ Joe B. Brown
JOE B. BROWN
United States Magistrate Judge

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