Dillard v. Smith
MEMORANDUM OPINION. Signed by Judge Thomas T. Cullen on 9/7/2021. (Opinion mailed to Pro Se Party via US Mail)(tvt)
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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
CLEON ELROY DILLARD,
Civil Action No. 7:20-cv-00151
Hon. Thomas T. Cullen
United States District Judge
In this action under 42 U.S.C. § 1983, Plaintiff Cleon Elroy Dillard claims that, on
September 7, 2019, Defendant Rodney Smith used excessive force against him while he was
being booked into the Martinsville City Jail. On July 16, 2021, the court denied the parties’
motions for summary judgment. The court concluded that “there are genuine issues of
material fact regarding the level of force used by Smith on September 7, 2019, and whether it
was objectively unreasonable under the circumstances.” (Mem. Op. 10 [ECF No. 53].)
The matter is now before the court on Smith’s motion to reconsider summary
judgment. Dillard filed a response in opposition to the motion on August 30, 2021, and the
court heard oral argument on August 31, 2021. For the following reasons, the court will deny
Standard of Review
Smith does not articulate the legal standard under which his motion to reconsider
should be adjudicated or “otherwise mention (much less analyze) the procedural propriety of
[the] motion.” Wootten v. Virginia, 168 F. Supp. 3d 890, 893 (W.D. Va. 2016). The court will
assume that the motion is filed under Federal Rule of Civil Procedure 54(b). See id. Under this
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rule, “a district court retains the power to reconsider and modify its interlocutory judgments .
. . at any time prior to final judgment when such is warranted.” Am. Canoe Ass’n v. Murphy
Farms, Inc., 326 F.3d 505, 514–15 (4th Cir. 2003). The exercise of such authority is “committed
to the discretion of the district court.” Id. at 515. Given this discretion, “[m]otions for
reconsideration of interlocutory orders are not subject to the strict standards applicable to
motions for reconsideration of a final judgment.” Id. at 514. “Nevertheless, the discretion
afforded by Rule 54(b) is ‘not limitless,’” and the United States Court of Appeals for the Fourth
Circuit has “cabined revision pursuant to Rule 54(b) by treating interlocutory rulings as law of
the case.” U.S. Tobacco Coop. Inc. v. Big South Wholesale of Va., LLC, 899 F.3d 236, 256–57 (4th
Cir. 2018) (quoting Carlson v. Boston Sci. Corp., 856 F.3d 320, 325 (4th Cir. 2017)). “Accordingly,
a court may revise an interlocutory order under the same circumstances in which it may depart
from the law of the case: (1) a subsequent trial producing substantially different evidence; (2)
a change in applicable law; or (3) clear error causing manifest injustice.”) (internal quotation
marks and citation omitted).
In his motion to reconsider summary judgment, Smith does not contend that the
court’s previous decision was clearly erroneous or that there has been an intervening change
in the law. Instead, Smith contends that the evidence at trial will be substantially different than
the evidence on summary judgment, and that Dillard will not be able to prove his claim of
excessive force by a preponderance of the evidence. For the following reasons, the court is
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First, Smith improperly seeks to have the court weigh the evidence and make credibility
determinations. Smith argues that his own affidavit and those from other officers establish
that “the use of force was objectively reasonable” under the circumstances and that Dillard
“had no obvious injury.” (Mot. to Reconsider 1–2 [ECF No. 74].) Smith emphasizes that the
jury would have to disregard testimony from “several eyewitnesses” and “Smith himself” to
find in Dillard’s favor. (Id. at 2.) As the court noted in its previous decision, however, it “‘is
not [the court’s] job to weigh the evidence, to count how many affidavits favor the plaintiff
and how many oppose him, or to disregard stories that seem hard to believe. Those tasks are
for the jury.’” (Mem. Op. 9 (quoting Gray v. Spillman, 925 F.2d 90, 95 (4th Cir. 1991))); see also
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) (“Credibility determinations, the
weighing of the evidence, and the drawing of legitimate inferences from the facts are jury
functions, not those of a judge, whether he is ruling on a motion for summary judgment or
for a directed verdict.”).
Second, Dillard’s own sworn statements are sufficient to create a triable issue of fact
as to whether he suffered any injuries. Dillard claims that Smith slammed his head into a wall,
causing him to suffer dental trauma and severe head pain. It is well-settled that a plaintiff may
testify as to any pain and suffering that he experienced as a result of the alleged use of excessive
force and that “[n]o expert testimony is required to assist jurors in determining the cause of
injuries that are within their common experiences or observations.” Hendrickson v. Cooper, 589
F.3d 887, 892 (7th Cir. 2009); see also Ziesmer v. Hagen, 785 F.3d 1233, 1239 (8th Cir. 2015)
(“Given that Zeismer claims he began experiencing neck pain shortly after the alleged
altercation with Trooper Hagen, and given that there is no evidence suggesting he experienced
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any such pain before [the altercation], a layperson could conclude that Ziesmer’s symptoms
were caused by the trauma to his neck and back.”). Thus, Dillard does not need expert
testimony to establish that his head hurt after it was allegedly slammed against the wall, or that
he immediately lost or chipped a tooth. Dillard is a competent witness to testify about what
he experienced, and, if believed, his testimony is sufficient proof of his claim.
Third, Dillard is not required to offer “physical or documentary evidence” to prove
that he is entitled to compensatory damages. (Mot. to Reconsider 3.) The Seventh Circuit’s
decision in Hendrickson v. Cooper is instructive in this regard. In that case, the Court held that
the plaintiff’s own testimony that the defendant “beat him up and that it hurt really bad” was
sufficient to support the jury’s finding of excessive force and that the jury’s award of
compensatory damages “was rationally connected to [the plaintiff’s] evidence of pain and
suffering.” 589 F.3d at 892. Other circuits, including the Fourth Circuit, have likewise held
that a plaintiff’s own testimony can provide a sufficient foundation for an award of
compensatory damages. See, e.g., Mys v. Mich. Dep’t of State Police, 886 F.3d 591, 603 (6th Cir.
2018) (“[Plaintiff’s] testimony provides a sufficient foundation for the jury’s pain-and-suffering
award.”); Bryant v. Aiken Reg’l Med. Ctrs. Inc., 333 F.3d 536, 546 (4th Cir. 2003) (“We have held
that a plaintiff’s own testimony, standing alone, can support an award of compensatory
damages for emotional distress.”) (citation omitted).
Fourth and finally, the fact that the court will not allow to present evidence regarding
the medical issues for which he was hospitalized more than six weeks after the alleged use of
force does not alter the court’s conclusion that summary judgment is inappropriate. * If the
By separate order, the court will grant Smith’s motion to exclude evidence regarding the symptoms and
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jury believes Dillard’s version of the events—that Smith slammed his head against a wall after
Dillard made a comment to another officer—the jury could find “that the force purposely or
knowingly used against him was objectively unreasonable” and therefore violated the Due
Process Clause of the Fourteenth Amendment. Kingsley v. Hendrickson, 576 U.S. 389, 397 (2015).
Although “the extent of the plaintiff’s injury” is one of several considerations that “may bear
on the reasonableness or unreasonableness of the force used,” this factor is not dispositive.
Id. at 397; see also cf. Wilkins v. Gaddy, 559 U.S. 34, 34 (2010) (instructing lower courts “to decide
[Eighth Amendment] excessive force claims based on the nature of the force rather than the
extent of the injury”).
For these reasons, Smith’s motion to reconsider will be denied.
The clerk is directed to forward a copy of this Memorandum Opinion and
accompanying Order to the parties.
ENTERED this 7th day of September, 2021.
/s/ Thomas T. Cullen____________________
HON. THOMAS T. CULLEN
UNITED STATES DISTRICT JUDGE
conditions for which Dillard was hospitalized in late October 2019. Because Dillard has failed to notice or
adduce any expert medical testimony to establish that these later conditions were caused by the alleged excessive
force, the court will preclude him from raising these injuries as part of his case-in-chief.
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