Cretacci v. Call

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF TENNESSEE

AT WINCHESTER

BLAKE CRETACCI, )

)

Plaintiff, )

v. ) Case No. 4:16-cv-97-CHS

)

JOE CALL, BRIAN KEITH, JARED )

NELSON, JESSE HARDEN, CODY )

FAUST, and COFFEE COUNTY, )

)

D efendants. )

MEMORANDUM OPINION

I. Introduction.

Defendants, Coffee County Deputies Joe Call, Brian Keith, Jared Nelson, Cody Faust and

Coffee County, move for summary judgment [Doc. 67] in this action brought by Plaintiff Blake

Cretacci pursuant to 42 U.S.C. § 1983 for alleged constitutional violations while Plaintiff was a

pretrial detainee in the Coffee County jail. For the reasons stated herein, Defendants' Motion for

Summary Judgment shall be GRANTED.

II. Background

A. Facts

When reviewing a motion for summary judgment, the Court must consider the facts in the

light most favorable to the nonmoving party who is, in this case, Plaintiff Cretacci. See Morris v.

Crete Carrier Corp., 105 F.3d 279, 280-81 (6th Cir. 1997). This case arises from incidents occurring

on three separate days—September 29, 2015, October 11, 2015, and January 14, 2017—while

Plaintiff was incarcerated at the Coffee County Jail as a pretrial detainee.

1. September 29, 2015, Incident

On September 29, 2015, while Plaintiff was incarcerated in BC pod at the Coffee County

jail, some inmates decided to hold a "peaceful riot" to protest conditions at the jail. Defendants

have submitted two videos of this incident which provide a view of the pod. Based on that video,

the Court makes the following observations about the pod:

• The pod is one large room, referred to as the dayroom, with a two-story

ceiling.

• Round tables with fixed seats are situated in the dayroom. The rear area of

the pod consists of two stories of individual cells running the length of the

room (the cell wall).

• The cells have solid doors except for a long, very narrow rectangular

window in each cell door.

• On the first floor, the cell doors open into the dayroom where the tables are

located.

• On the upper level, the cell doors open onto a concrete balcony with a metal

railing running the length of the second story cell wall. An inmate standing

on the second story balcony can look down into the dayroom.

[See DVD videos of riot—Notice of Manual Filing, Doc. 47]

The "riot" involved the inmates' refusal to return to their cells for lockdown when

instructed. [Doc. 68-7, Cretacci Dep. at 41]. There were three ring leaders of this "riot": Jeremy

Mathis, BJ Murray, and Josh Byford. [Id. at 47]. They told the other inmates that, if they refused

to participate in the riot, they would get beaten-up later. [Id. at 54-56]. Because Plaintiff took this

threat seriously, he did not return to his cell when the guards instructed them it was time for lock

up. [Id.]. Some of the inmates (not Plaintiff) put soap, clothes and other items on the floor in front

of the main entrance door to the pod to impede the officers when they attempted to enter the pod.

[See DVD videos]. Some inmates hung sheets on the railing of the second-floor balcony to stop

pepperballs that the guards might fire at the inmates [Id.]. For the approximate two hour duration

of the "riot," Plaintiff sat at a table or walked slowly around the dayroom. [Id.]. Because he had

closed his cell door earlier, he needed a guard's assistance to reopen it. [Doc. 68-7, Cretacci Dep.

at 52]. At some point, he attempted unsuccessfully to signal surreptitiously to the guards to unlock

his cell so that he could return to it. [Id.at 52, 55-56]. After about two hours, guards burst into the

dayroom from doors on either side of the dayroom. [See DVD videos]. Some were carrying

pepperball launchers. [Id.]. The guards ordered the inmates to lie on the floor, and the inmates

complied within a minute or two. [Id.]. Plaintiff asserts that he did not resist, but that he was struck

point-blank multiple times with pepperballs containing mace. [Doc. 68-7, Cretacci dep. at 42]. He

further alleges that the guards beat other non-resisting inmates. [Id. at 42, 44-45, 73].

According to Plaintiff, after the inmates returned to their cells following the incident, the

water in the sinks and toilets was turned off for two days and the toilets backed up. [Doc. 68-7,

Cretacci dep. at 68-71]. The inmates were made to eat in their cells while being exposed to the

fumes from human waste. [Id.]. They were also denied toilet paper. [Id. at 45-6]. They were not

allowed to shower, and mace burned Cretacci's skin for at least a day. [Id. at 69-70].

2. October 11, 2015, Incident

In his deposition testimony, Plaintiff stated that, following the riot on September 29, 2015,

he notified the guards multiple times that he needed to be moved from BC pod; however, he made

no written request and he could not remember names of specific guards whom he notified. [Id. at

48]. He also testified that he told guards that the rioting inmates were going to do bad things to

people who did not participate in the riot, but he could not remember whom he told. [Id. at 117].

In response to a question about whether he had specifically told a Coffee County employee that he

was concerned for his safety due to threats by Mathis, Murray, or Byford, Plaintiff answered,

I wouldn't say that I'm afraid of these three people not knowing that they was [sic]

out to get me, not knowing that they was—a fight was going to happen in the future.

But I would have told these officers that this pod is crazy is what I kept saying.

These people are nuts. I need to get out of this pod. You guys need to move me into

another pod. These people are nuts. You've got to understand.

[Id. at 165].

Very early on the morning of October 11, 2015—before breakfast—the three ringleaders

of the riot on September 29, 2015, Mathis, Murray, and Byford, were in the dayroom. Plaintiff left

his cell to ask them to be quiet and then returned to his cell. [Id. at 79]. Plaintiff testified that the

following event then occurred:

Jeremy Mathis came into my cell and assaulted me, tried to swing, and I hit him

out the door. And when I did that, the other two, Josh Byford and BJ Murray, were

on the—helped him try to hit me. They—all three of them tried to push me back

into the room, and I had fought my way out into the dayroom.

And once we got out into the open area, I started to have more words with them,

and the door opened up and officers came in. I immediately turned around and

walked back to my cell. The officers came into the cell, secured me, locked the

door, then left out in the dayroom, and they left the pod.

[Id. at 78-9].

When asked if he had spoken to the guards before going into his cell, Plaintiff testified that

the guards asked him what was going on and he replied, "'I don't know what the **** is going on.'

I remember saying that. I don't really know what—you know, it was pretty obvious what was

happening, but I don't know why things were happening. I was confused about being hit." [Id. at

92]. Jesse Harden and Jared Nelson were two of the guards who came into the pod. [Id. at 91].

Plaintiff testified that the fighting had stopped before the guards came into the pod. [Id. at 92]. The

guards then talked to Mathis, Murray, and Byford in the dayroom, but Plaintiff could not hear what

they were saying. [Id. at 92-3]. Then the guards left the dayroom, and Mathis, Murray, and Byford

threatened to kill Plaintiff. [Id. at 93]. Plaintiff did not call the guards on the intercom to tell the

guards about the threats. [Id. at 94].

About a half hour later, breakfast was served. [Id. at 79]. Plaintiff testified:

I walked from my cell and got in line. I grabbed my tray and walked to a table and

set my tray down. I walked back to the cell to grab my spoon to eat breakfast.

When I walked into the cell, Jeremy Mathis was walking behind me. And when I

walked into my cell and grabbed my spoon and my cup that was on the table, I

turned around and he hit me, and I fell to the ground. He kept hitting me. And then

he had his hands on my face and just started punching me more. He punched me

for probably four or five times maybe, I would guess. After the first hit, I was out

of it, because he hit me hard and I'm seeing black, that's why I fell.

When he left the room, I had gotten back up, but I was disoriented. And when I got

out of the cell and went back to the table, I walked back to the table and I went to

sit down, and I guess the officer had come up behind me, grabbed me, and put me

up against the wall, 'cause I'm guessing that somebody was about to hit me again,

which I didn't see. Then they took me out of the pod . . . .

[Id. at 79-80]. Officers Nelson, Keith, and Call were in the pod at that time. [Id. at 96; Call's

Incident Report, Doc. 68-3, Page ID # 1089]. Officer Keith grabbed him and put him against the

wall to keep him from being assaulted. [Cretacci dep. at 104-05]. Keith and Call then escorted

Plaintiff "to medical" for evaluation. [Call's Incident Report, Doc. 68-3, Page ID # 1089]. In his

incident report, Call described the commencement of the incident in the dayroom at breakfast as

follows:

At approximately 0715, I, Deputy Joseph Call, was in BC pod serving breakfast

with CO Nelson. As we completed and were leaving, CO Keith entered the pod. At

this point, a verbal altercation began with inmates Mathis, Byford, Murray and

Cretacci, regarding a conflict that started this morning around 0600.

[Call's Incident Report, Doc. 68-3, Page ID # 1089]. After Plaintiff was taken to medical for

evaluation, he was permanently transferred to another pod for his protection and was not returned

to BC pod. [Doc. 68-1,Gentry Aff. ¶ 16]. In his deposition, Officer Call explained that he learned

Plaintiff, Mathis, Murray, and Byford had had a conflict at 6:00 a.m. by questioning Cretacci after

they removed him from BC pod. [Doc. 68-10, Call dep. at 19].

3. January 14, 2017, Incident

Plaintiff asserts that, on January 14, 2017, he was sitting in the dayroom when Officer Cody

Faust and several other officers rushed into the room. Then, without provocation, Faust shot him

two or three times with a pepperball launcher before he could comply with Faust's orders to get on

the ground. According to Defendants, officers had heard over the intercom a discussion among the

inmates about a plan to stab an unidentified inmate in the dayroom. [See Doc. 68-3, Incident

Reports]. Faust initiated a search of the pod to prevent serious bodily injury or death. [Id.]. He

ordered Officer Dubicki in the tower to make an announcement over the speakers in the dayroom

instructing the inmates to lie on the ground on their stomachs. [Doc. 68-3, Incident Report, Page

ID # 1085]. Faust heard Dubicki give the order. Then Dubicki notified Faust that some of the

inmates were refusing the order. [Id.] At that point Faust and two other officers entered the pod

with pepperball launchers.

In his deposition, Plaintiff described his view of the incident

I'm sitting at the table. I had my chess board out. I had my legs crossed. I'm waiting

for the other player to come down to play. The pod door opens up and officers enter

the pod, and the officers have pepperball guns and they stop at the front table, and

everybody is looking around. The officers are looking around. The inmates are

looking around, and everybody is questioning like, what the **** is going on, and

why do you guys have guns? And there is [sic] two guys on the front table, sitting

there, talking. And I'm just sitting there, and I'm looking, and they're talking to the

guys at the front table. And Officer Faust breaks off and screams, "get on the

ground." And he aimed his launcher right at me. (descriptive sound) shoots me,

(descriptive sound) while I'm sitting there. And he's yelling, "get on the ground, "

and I don't know, but I believe he shoots another inmate.

And as I get up, I get up off the stool that I'm sitting on, I get up, I turn around and

I go to get down on the ground. I put my hands in front of me and I start to bend

over, and he shoots me again, (descriptive sound). And I turn around and I said,

quote don't ******* shoot me. Quit that ******* ****. There is nothing—I'm not

even doing nothing."

And then I jump down on the ground. They go around and they search everybody.

And everybody is, like, what the **** is going on? And then they go upstairs. They

unlocked a room upstairs and grab them in and out, and they searched them. And

then I believe they leave the pod . . . .

And then I asked for—I believe it was the other guy that got shot. I think he asked

for the medical attention, to have somebody come down and look at us. And I don't

believe we were actually looked at till the next day or the day after. It could have

been one or two days. But we did go to medical after a day or two, and they looked

at our injuries, and put a graph on them to find out how big they were.

And then I don't know if they gave me Ibuprofen or not. And then that was the end

of that.

[Cretacci dep. at 121-123].

Plaintiff clarified that Faust shot him once or twice in the arm with a pepperball when he

was seated at a table while Faust was saying, "get on the ground" [Id. at 124-25]. After he was

shot, he stood up and said, "dude, what are you doing, man? Why are you shooting me?" [Id. at

125]. Then he took off the poncho he was wearing because it made it difficult to get on the ground

and turned around to get down when Faust shot him again in the back. [Id. at 125]. Plaintiff stood

up again and said, "don't ******* shoot me again." [Id. at 126-27]. Then he hit the ground. [Id. at

127].

He did not hear the guard tower order the inmates to get on the ground before Faust entered

the dayroom. [Id. at 128]. Nobody got on the ground until the guards entered the dayroom and

started ordering them to get on the ground. [Id. at 128]. Plaintiff stated in his declaration that the

"dayroom does not have a loudspeaker." [Doc. 70-2, Cretacci Decl. ¶ 5]. However, that statement

was made in relation to the dayroom in BC pod where the October 11, 2015, incident occurred.

[See Doc. 70-2, Cretacci Decl. ¶ 4 referencing the dayroom on October 11, 2015]. Plaintiff was

moved out of that pod after the October 11, 2015, incident. [Doc. 68-1, Gentry Aff. ¶ 16]. The

January 14, 2017, incident occurred in a different pod from the one referenced in Plaintiff's

declaration.

B. Procedural History

1. Plaintiff Mailed the Complaint to Be Filed

The original complaint in this case was mailed from the Coffee County jail and received

by the United States District Court for the Eastern District of Tennessee on October 3, 2016. [Doc.

1]. At that time, Plaintiff's counsel, Drew Justice, was admitted to practice in the United States

District Court for the Middle District of Tennessee; however, he was not admitted to practice in

the Eastern District of Tennessee. [Doc. 70-1, Justice Aff. ¶ 3]. He mistakenly thought that Coffee

County was in the Middle District and learned late on September 28, 2016, that it is in the Eastern

District of Tennessee, Winchester Division. [Id. ¶ 4]. On September 29, he reviewed the rules to

be admitted either permanently or pro hac vice but determined it would take more than one day to

do either. [Id. ¶ 5]. Because he was not admitted to practice in the Eastern District, he could not

file the complaint electronically. [Id. ¶ 8]. He then took the complaint to Plaintiff at the Coffee

County Jail to sign. [Id. ¶ 6]. After getting the complaint signed, Mr. Justice took the signed

complaint to the courthouse in Winchester, Tennessee, to file it manually, but there was no Clerk's

Office located in the building. [Id. ¶ 10]. At that point, it was too late to take the complaint to

Chattanooga to be filed because the Clerk's Office in Chattanooga would be closed by the time he

arrived there. [Id. ¶ 10]. Mr. Justice then returned to the Coffee County Jail; gave Plaintiff an

addressed envelope and postage; explained the prison mailbox rule; and told Plaintiff to mail the

complaint. [Id. ¶ 11]. Mr. Justice assured him that "I would sign on to the case soon, once I got

admitted to practice in East Tennessee." [Id. ¶ 6]. The Clerk's Office in Chattanooga received the

complaint by mail on October 3, 2016. [Doc. 1]. Mr. Justice moved to be admitted to practice in

this Court pro hac vice on November 22, 2016 [Doc. 3], and was admitted the following day [Doc.

4]. On March 11, 2017, Plaintiff amended his complaint to add Count IV which arises from the

January 14, 2017, incident.

2. The District Court Dismissed QCHC, the Medical Provider at the Coffee

County Jail

Plaintiff also sued QCHC, Inc., ("QCHC") a private medical provider with which Coffee

County had contracted to provide medical services to the inmates at the Coffee County jail. In the

Amended Complaint, Plaintiff alleged that Coffee County delegated responsibility for all medical

decisions to QCHC. [Doc. 18, Am. Compl. ¶ 4]. In Count I, Plaintiff brought a claim under 42

U.S.C. § 1983 against QCHC alleging that QCHC had acted with deliberate indifference to his

serious medical needs in violation of the Fourteenth Amendment by the following conduct:

• During the September 29, 2015 riot, Plaintiff was shot twice in the face with

two pepperballs filled with mace, and he was denied treatment.

• On October 11, 2015, Plaintiff was hit in the mouth by an inmate known to

have HIV and some of the inmate's blood got into Plaintiff's mouth. He also

sustained injuries to his face causing it to become swollen. QCHC refused

to x-ray his face for three months to determine if it had been fractured and

only gave him Ibuprofen.

• QCHC refused to provide him with any prophylactic treatment to prevent

him from becoming infected with HIV despite knowledge of the attacker's

HIV status. Further, QCHC did not perform an HIV test on Plaintiff until a

week after the attack. Although the test was negative, the nurse who

performed the test told Plaintiff the test was inconclusive because it had

been performed so early. Plaintiff was finally given a second test after

multiple requests ten months later and was told it was negative, but he was

not given the test results.

Upon review of QCHC's Motion to Dismiss, the District Court found that QCHC's alleged

conduct, assuming it to be true for purposes of the motion to dismiss, did not rise to the level of a

constitutional violation, and the Court dismissed all claims against QCHC.1 [Doc. 33, June 19,

2017, Memorandum and Order].

3. Plaintiff's Amended Complaint

Plaintiff asserts four counts in his Amended Complaint. All counts are brought under 42

U.S.C. § 1983 alleging various constitutional deprivations.

1 Plaintiff did not bring a negligence claim against QCHC.

a. Count I "Violation of the Right to be Free of Punishment Without Due

Process of Law."

In Count I, Plaintiff brings claims arising from the October 11, 2015 assaults against

Defendants Call, Keith, Nelson, Harden and Coffee County asserting:

• Defendants failed to protect Plaintiff from violent assaults by other inmates

on October 11, 2015, and were therefore "deliberately indifferent to the

Plaintiff's health and safety" thereby violating his "Fourteenth Amendment

right to be free of punishment without due process of law." [Am. Compl.

50].

• Coffee County is responsible for the acts of the individual defendants

because they were acting according to "common jail custom." [Am. Compl.

¶ 51].

• Coffee County, as well as QCHC, acted with deliberate indifference to

Plaintiff's serious medical needs in violation of the Fourteenth Amendment.

The factual basis for this claim against Coffee County is the same as the

factual basis for this claim against QCHC which the District Court

dismissed.

b. Count II "Excessive Force."

In Count II, Plaintiffs brings claims arising from the September 29, 2015 riot against

Coffee County only, alleging that Coffee County violated his Fourteenth Amendment rights to be

free of excessive force and "to be free of punishment without due process of law" for the

following reasons:

• Coffee County engaged in "collective punishment against inmates." [Am.

Compl. ¶ 62]. Collective punishment would include denying water and

toilet paper for two days after the September 29, 2015, riot. [Id. ¶ 11].

• Coffee County officers assaulted Plaintiff with pepperballs and mace even

though he was not resisting the officers when they entered the pod during

the September 29, 2015 riot. [Am. Compl. ¶ 62].

• Coffee County is liable for its officer's conduct because Coffee County

failed to properly train or supervise the officers, or the officers acted

according to "improper policies." [Am. Compl. ¶ 62].

c. Count III—"Violation of the Right to be Free of Punishment without Due

Process of Law."

In Count III, Plaintiff brings claims arising from the September 29, 2015, riot against only

Coffee County asserting that:

• [b]y failing to distribute essential supplies . . such as toilet paper and by

disabling their water supply as a form of collective punishment, [after the

September 29, 2015 riot] . . . Coffee County violated Plaintiff Cretacci's

Eighth Amendment right to be free of cruel and unusual punishment." [Am.

Compl. ¶ 64].

• Coffee County is a liable for its officers' conduct because the officers were

acting according to a custom and "improper policies" and/or Coffee County

failed to properly train or supervise the officers. [Id.].

d. Count IV—"First Amendment Retaliation and Excessive Force"

In Count IV, Plaintiff brings claims arising from the January 14, 2017, incident Officer

Cody Faust and Coffee County alleging that:

• Faust used excessive force in violation of the Fourteenth Amendment by

shooting Plaintiff with a riot gun containing pepperballs without cause on

January 14, 2017. [Am. Compl. ¶ 66].

• Coffee County is liable for Faust's conduct because he was acting

according to Coffee County's custom or policy and Coffee County failed

to properly train and/or supervise Faust.

• Faust shot Plaintiff with the pepperball launcher in retaliation for this

pending lawsuit thereby violating Plaintiff's First Amendment rights.

In his response to Defendant's Motion for Summary Judgment, Plaintiff conceded he had

no proof supporting his First Amendment retaliation claim and withdrew it. [Doc. 69, Pl.'s br. at

18].

III. Discussion

A. Standard of Review

Fed. R. Civ. P. 56(c) provides that summary judgment will be rendered if there is no genuine

issue as to any material fact and the moving party is entitled to judgment as a matter of law. The

burden is on the moving party to show that no genuine issue of material fact exists, and the Court

must view the facts and all inferences to be drawn therefrom in the light most favorable to the

nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986);

Morris v. Crete Carrier Corp., 105 F.3d 279, 280-81 (6th Cir. 1997); 60 Ivy Street Corp. v. Alexander,

822 F.2d 1432, 1435 (6th Cir. 1987). The moving party may satisfy its burden by presenting

affirmative evidence that negates an element of the nonmoving party's claim or by demonstrating an

absence of evidence to support the nonmoving party's case. Celotex Corp. v. Catrett, 477 U.S. 317,

323-35 (1985); Rodgers v. Banks, 344 F.3d 587, 595 (6th Cir. 2003). There are "no express or implied

requirements in Rule 56 that the moving party support its motion with affidavits or other similar

materials negating the opponent's claim;" it is enough for the movant to "point[ ] out" an absence

of evidence on an essential element of the non-movant's claim. Celotex, 477 U.S. at 323-25; see

also Harvey v. Campbell Cnty, Tenn., 453 Fed. Appx. 557, 560 (May 10, 2011).

Once the moving party has fulfilled his initial burden under Rule 56, the nonmoving party is

not entitled to a trial merely on the basis of allegations. The nonmoving party is required to "go beyond

the pleadings and by his own affidavits, or by the depositions, answers to interrogatories, and

admissions on file, designate specific facts showing that there is a genuine issue for trial." Celotex,

477 U.S. at 324-25; see also 60 Ivy Street, 822 F.2d at 1435. The moving party is entitled to summary

judgment if the nonmoving party fails to make a sufficient showing on an essential element of its case

with respect to which it has the burden of proof. Celotex, 477 U.S. at 323; Collyer v. Darling, 98 F.3d

211, 220 (6th Cir. 1996).

The judge's function at the point of summary judgment is limited to determining whether

sufficient evidence has been presented to make the issue of fact a proper jury question, and not to

weigh the evidence, judge the credibility of witnesses, or determine the truth of the matter. Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986); 60 Ivy Street, 822 F.2d at 1435-36.

B. Analysis

Section 1983 is a remedial statute which does not itself create independent, substantive legal

rights. To make out a claim under 42 U.S.C. § 1983, the plaintiff is required to show that he has been

deprived of a right, privilege, or immunity secured to him by the United States Constitution or other

federal law and that the defendants caused the deprivation while they were acting under color of state

law. Gregory v. Shelby County, Tenn.,220 F.3d 433, 441 (6th Cir. 2000); Baker v. Hadley,167 F.3d

1014, 1017 (6th Cir. 1999); Valot v. Southeast Local School Dist. Bd. of Educ., 107 F.3d 1220, 1225

(6th Cir. 1997). In each of the Counts in his Amended Complaint, Plaintiff has alleged constitutional

deprivations caused by state actors. There is no dispute that the defendants are state actors. The

question before the Court is whether a constitutional deprivation occurred and, as to those claims

arising from the riot on September 29, 2015, whether Plaintiff's claims are barred by the applicable

statute of limitations. The Court will proceed in chronological order with respect to the events giving

rise to the claims in this action rather than in numerical order of the Counts in the Amended

Complaint.

1. Counts II & III: Claims Arising from the September 29, 2015 Riot

Count II ("Excessive Force") and Count III ("Violation of the Right to be Free of

Punishment without Due Process of Law") both arise out of the riot on September 29, 2015, and

include conduct allegedly occurring for two days after September 29, 2015—possibly until

October 1, 2015—i.e., shutting off water in the cells and denying inmates toilet paper.

Defendant seeks summary judgment as to Counts II and III on substantive and statute of

limitations grounds. The Court will not reach the merits of Plaintiff's claims asserted in these

Counts because they are barred by the applicable statute of limitations.

In an action under 42 U.S.C. § 1983, the Court applies the statute of limitations for a

personal injury action under the law of the state in which the claim arises. Eidson v. Tenn. Dep't

of Children's Servs., 510 F.3d 631, 634 (6th Cir. 2007). In Tennessee, the limitations period is one

year. Tenn. Code Ann § 28-3-104(a); Eidson, 510 F.3d at 634-35. Though the statute of limitations

is borrowed from state law, "[t]he date on which the statute of limitations begins to run in a § 1983

action is a question of federal law." Id. at 635. "Ordinarily, the limitation period starts to run when

the plaintiff knows or has reason to know of the injury which is the basis of his action." Id.

Plaintiff signed and delivered his complaint to prison officials for mailing on September

29, 2016, and it was filed by the Clerk of Court on October 3, 2016. [Doc. 2]. The Clerk's Office

received the complaint on October 3, 2016. [Doc. 1].

The parties dispute what steps Plaintiff was required to take for the complaint to be deemed

"filed" by September 29, 2016. Plaintiff contends he was an unrepresented prisoner and thus

entitled to avail himself of the prison mailbox rule announced in Houston v. Lack, 487 U.S. 266,

108 S. Ct. 2379 (1988), making his Complaint timely because it was delivered to prison officials

on September 29, 2016. Defendant argues Plaintiff was represented by his present counsel and

thus required to file his complaint with the Clerk by September 29, 2016.

Initially, Defendant devotes significant attention to the "egregious fraud" allegedly

perpetrated on the Court by Plaintiff's filing the Complaint "pro se" when he was in fact

represented by counsel. Defendant insists this conduct was a misrepresentation to the Court,

arguing that ghostwriting is "universally condemned" and worthy of sanctions. [Doc. 68 at 13].

Defendant suggests Justice delayed filing a notice of appearance to distance himself from

Plaintiff's filing, noting the more lenient standard of review afforded to pro se litigants. [Doc. 68

at 14]. In the course of this ad hominem attack on Justice, Defendant mischaracterizes case law,

cites inaccurately to an ethics opinion of the Tennessee Board of Professional Responsibility, and

construes other authority quite liberally in its favor.2 But Defendant's strenuous opposition misses

the point. The question before the Court is simply whether Plaintiff was represented when he filed

the Complaint and, if so, whether he was nonetheless permitted to file his Complaint by delivering

it to a prison official for mailing.

Plaintiff argues he was unrepresented at the time of filing because his attorney was unable

to represent him in the appropriate federal court. [Doc. 69 at 10]. Justice avers that he believed the

appropriate district for filing was the United States District Court for the Middle District of

Tennessee, in which he was admitted to practice. [Doc. 70-1 at ¶ 3]. He learned of his mistake the

night before the statute of limitations expired but did not believe he could fulfill the requirements

for pro hac vice or permanent admission on time. [Id. at ¶ 5]. Knowing he could not file

electronically, he drove to the courthouse for the Winchester Division of the United States District

Court for the Eastern District of Tennessee to attempt to file the Complaint in person. [Id. at 10].

When he arrived in Winchester, he discovered there is not a staffed Clerk's office at the courthouse.

2 Defendant cites the fact section of Formal Ethics Opinion 2005-F-151 as though it were the guidance of the opinion

itself. [Doc. 71 at 5]. The brief cites Cook v. Stegall, 295 F.3d 517 (6th Cir. 2002) and Duhon v. Kemper, 19 F. App’x

353 (6th Cir. 2001) for the proposition that “[a]pplication of the prison mailbox rule is narrow, and it does not serve

to protect an incarcerated inmate from the negligence of his counsel.” Duhon makes no such holding, finding only

that the defendant waived his mailbox rule argument by failing to raise it at the trial level. Similarly, Cook v. Stegall,

has nothing to do with negligence of counsel, relating instead to whether a complaint mailed to a third party can be

deemed filed as of the date of mailing. Defendant cites Redmond v. United States, Case No. 4:13-cv-16, 2016 WL

9330497 (E.D. Tenn. Mar. 7, 2016) as holding that the prisoner could not use the mailbox rule because his declaration

“failed to establish in any meaningful way how he had timely and properly used the prison mailing system.” [Doc. 71

at 2]. In Redmond, the Court was applying Rule 3(d) of the Section 2255 Rules, which requires timely filing to be

shown by a declaration or notarized statement that sets forth the date of deposit and states that first-class postage has

been prepaid. Redmond, 2016 WL 9330497 at *4. In a § 1983 action, the Sixth Circuit has held that the “absent

contrary evidence,” courts assume the prisoner handed the complaint to prison officials for mailing on the date he or

she signed the complaint. Brand v. Motley, 526 F.3d 921, 925 (6th Cir. 2008).

[Id. at ¶ 10]. He did not believe he could make it to the Chattanooga Clerk's office before it closed,

so he returned to the jail and instructed Plaintiff on how to file the Complaint. [Id. at ¶ 10, 11].

Justice's admission status and electronic filing capabilities in this District do not determine

whether Plaintiff was represented at the time of filing. His legal representation of Plaintiff is clear

from the fact that he drafted the Complaint, attempted to file it himself, and instructed Plaintiff on

how to file it. [Doc. 70-1 at ¶¶ 4, 11]. When Plaintiff delivered the Complaint for mailing, he did

so on the advice of his counsel. Plaintiff thus had the same benefit of counsel as any other

represented litigant.

The Court finds that Plaintiff was represented by counsel. And, because Plaintiff was

represented at the time of filing, the prisoner mailbox rule does not apply. Consequently, the Court

finds that the Complaint was filed on October 3, 2015. In Houston v. Lack, the Supreme Court of

the United States ruled that a pro se petitioner's notice of appeal on habeas corpus review would

be deemed filed as of the date it was delivered to prison officials for mailing to the court. 487 U.S.

266 (1988). The Court observed that "[t]he situation of prisoners seeking to appeal without the aid

of counsel is unique." Id. at 270. They are unable to monitor their notices of appeal to ensure they

are timely filed and are instead forced "to entrust their appeals to the vagaries of the mail." Id. at

271. Incarcerated litigants can never really be sure that their filings will be filed on time, relying

on prison officials "who may have every incentive to delay." Id. Accordingly, the Court held the

appeal was timely "because the notice of appeal was filed at the time petitioner delivered it to the

prison authorities for forwarding to the court clerk." Id. at 276.

The United States Court of Appeals for the Sixth Circuit has extended this holding to, inter

alia, "civil complaints filed by pro se petitioners incarcerated at the time of filing." Richard v. Ray,

290 F.3d 810, 813 (6th Cir. 2002); see also Aldridge v. Gill, 24 F. App'x 428 (6th Cir. 2001)

(mailbox rule of Houston v. Lack applies to § 1983 suits under applicable state statute of

limitations). In Richard v. Ray, the Sixth Circuit reasoned that all of the circumstances cited by the

Supreme Court in Houston v. Lack are also present when a pro se prisoner files a civil complaint.

Id. The court has declined, however, to extend the rule to instances where the prisoner mails a

pleading to a third party for filing. Cook v. Stegall, 295 F.3d 517, 521 (6th Cir. 2002). "The

rationale for the rule is that the date the prisoner gives the petition to the prison can be readily

ascertained, and any delays in receipt by the court can be attributed to the prison, and pro se

litigants should not be penalized for a prison's failure to act promptly on their behalf." Id. at 521.

In contrast, when a prisoner mails a complaint to a third party, the certainty facilitated by the rule

is undermined. Id.

There is a circuit split as to whether the prison mailbox rule can be utilized by represented

prisoners. The United States Court of Appeals for both the Fourth and Seventh Circuits have

extended the rule to represented prisoners. United States v. Craig, 368 F.3d 738 (7th Cir. 2004)

(represented prisoners may use the mailbox rule to file a notice of appeal that otherwise complies

with Federal Rule of Appellate Procedure 4(c)); United States v. Moore, 24 F.3d 624, 625 (4th Cir.

1994) ("[T]here is little justification for limiting Houston's applicability to situations where the

prisoner is not represented by counsel."). The United States Court of Appeals for the Eight Circuit

and the Ninth Circuit have each held that a represented prisoner may not take advantage of the

rule. Burgs v. Johnson County, 79 F.3d 701 (8th Cir. 1996) (incarcerated plaintiff not entitled to

benefit of Houston because he was represented by counsel); Stillman v. LaMarque, 319 F.3d 1199

(9th Cir. 2003) ("[T]o benefit from the mailbox rule, a prisoner must . . . be proceeding without

assistance of counsel.").

The Sixth Circuit has not directly addressed this issue, but the court's prior holdings suggest

it would restrict the rule's applicability to unrepresented prisoners. As announced in Houston v.

Lack, the mailbox rule was not expressly restricted to prisoners proceeding pro se. Yet when the

Sixth Circuit broadened the reach of the rule to include civil complaints, it limited that extension

to prisoners without counsel. The court held: "Houston v. Lack applies to civil complaints filed by

pro se petitioners incarcerated at the time of filing." Richard v. Ray, 290 F.3d at 813. To the extent

Richard v. Ray reflects an extension of Houston, that extension was a narrow one and should be

so construed.

The Sixth Circuit has also consistently focused on an inmate's lack of representation when

discussing whether the prison mailbox rule applies in different contexts. See Richard v. Ray, 290

F.3d at 812-13 (Houston Court considered "several concerns particular to the incarcerated prisoner

without counsel"); Cook v. Stegall, 295 F.3d 517, 521 (6th Cir. 2002) (mailbox rule exists because

"pro se litigants should not be penalized for a prison's failure to act promptly on their behalf");

Brand v. Motley, 526 F.3d 921, 925 (2008) (mailbox rule creates a relaxed filing standard for "pro

se prisoner's complaint"). The Sixth Circuit recently observed that the "mailbox rule exception is

supported by important public policy considerations that are unique to unrepresented, incarcerated

individuals . . . ." United States v. Smotherman, 838 F.3d 736, 737 (6th Cir. 2016). In Smotherman,

the court wrote: "The prison mailbox rule has been long established, and we have recognized the

typical rule that a pro se prisoner's notice of appeal is 'filed at the time [the pro se prisoner]

delivered it to the prison authorities for forwarding to the clerk." Id. (quoting Houston, 487 U.S.

at 276) (alteration in original).The Sixth Circuit's limited extension of Houston v. Lack to civil

complaints filed by pro se prisoners, combined with its consistent articulation of the rule as

available to unrepresented inmates, suggests the court would decline to further extend the rule to

a represented prisoner plaintiff.

It appears to the Court that Justice tried to find a practical solution to his mistake of venue,

but that a confluence of obstacles prevented the timely filing of the Complaint. He could not file

electronically in the Eastern District because he was not admitted to practice in this District and so

could not register as an electronic filer. See United States District Court for the Eastern District of

Tennessee Electronic Case Filing Rules and Procedures, Rule 5, available at

https://www.tned.uscourts.gov/sites/tned/files/ecf_rules_procedures.pdf (last accessed March 20,

2020). He could have filed the Complaint in person at the Clerk's office for the Chattanooga

Division of Eastern District, contemporaneously with an application for pro hac vice admission.

Unfortunately, he instead tried to file in the Winchester Division, which does not have a staffed

clerk's office and does not accept in-person, paper filings.3

Such a routine attorney error does not permit the Court to extend the statute of limitations.

See Graham-Humphreys v. Memphis Brooks Museum of Art, Inc., 209 F.3d 552, 561 (6th Cir.

2000) ("Absent compelling equitable considerations, a court should not extend limitations by even

a single day."). As ever, an attorney is not required to wait until the final day of a limitations period

to file pleadings. Because Plaintiff's Count II excessive force claim arose on September 29, 2015,

and his Count III due process claims arose, at the latest, on October 1, 2015, his October 3, 2016,

filing was untimely as to these claims. Consequently, Plaintiff's claims brought under Counts II

and III are barred by the applicable statute of limitations.

3 The Court’s public website provides the following information regarding the Winchester Division under a link

entitled, “Location and Information”, “NOTICE: Any court filings in the Winchester Division should be mailed to

the Chattanooga Divisional Office” See https://www.tned.uscourts.gov/winchester.

2. Count I: Claims Arising from the October 11, 2015 Assaults (Failure to

Protect) and Deliberate Indifference to Serious Medical Needs

a. Failure to Protect

Plaintiff alleges in Count I of his Amended Complaint that Defendants Call, Keith, Nelson,

and Harden failed to protect him from assaults by other inmates on October 11, 2015, and that this

failure violated his "Fourteenth Amendment right to be free of punishment without due process of

law." [Am. Compl. ¶ 50]. Plaintiff contends that Coffee County is liable for the individual defendants'

failure because they were acting according to "common jail custom." [Id. ¶ 51].

"'[P]rison officials have a duty to protect prisoners from violence at the hands of other

prisoners because corrections officers have 'stripped them of virtually every means of self-protection

and foreclosed their access to outside aid.'" Richko v. Wayne County, Michigan, 819 F.3d 907, 915

(6th Cir. 2016) (quoting Farmer v. Brennan, 511 U.S. 825, 833 (1994)). A pretrial detainee's claim

for failure to protect is recognized under the Fourteenth Amendment and is analyzed using the same

standard as the Eighth Amendment. Richko, 819 F.3d at 915; see also Dickerson v. Ky Corr.

Psychiatric Ctr., No. 17-5412, 2017 WL 8792665, at * 2 (Oct. 12, 2017). The plaintiff bears the

burden "to present[] evidence from which a reasonable juror could conclude that the individual

defendants were deliberately indifferent to a substantial risk of serious harm to [the plaintiff] and that

they disregarded that risk by failing to take reasonable measures to protect him." Richko, 819 F.3d at

916; (citing Farmer, 511 U.S. at 842). This rubric has both an objective and subjective component.

Richko, 819 F.3d at 915, (citing Farmer, 511 U.S. at 835-38).

[A plaintiff] can satisfy the objective component by showing that, absent reasonable

precautions, an inmate is exposed to a substantial risk of serious harm. The subjective

component requires [the plaintiff] to show that (1) "the official being sued subjectively

perceived facts from which to infer a substantial risk to the prisoner," (2) the official

"did in fact draw the inference," and (3) the official then disregarded that risk. Because

government officials do not readily admit the subjective component of this test, it may

be demonstrated in the usual ways, including inference from circumstantial evidence.

Richko, 819 F.3d at 915-16 (citations omitted).

Defendants assert Plaintiff cannot prove the elements of a failure to protect claim because he

can prove neither the objective nor the subjective components of the failure-to-protect analysis. [Doc.

68, Defs' br. at 22]. Since Plaintiff must present evidence to satisfy both components to defeat

Defendants' motion for summary judgment, the Court will focus on Defendants' stronger argument,

i.e., that Plaintiff has no evidence to support the subjective component. Plaintiff contends he does

have evidence to show that the individual Defendants knew Mathis, Murray and Byford presented a

substantial risk of serious harm to him:

• "Plaintiff asserts that records show Mathis, who committed the assaults on

October 11, 2015, has shown a pattern of predatory behavior against other

inmates, and has been brought up on disciplinary charges six times." [Doc.

69, Pl.'s br. at 15]. In support of this last contention regarding disciplinary

charges, Plaintiff refers to Defendants' Response to Request for Production

No. 5.

Defendants' Response to Request for Production No. 5 states, "[a]ttached is a DVD containing

all responsive documents to this Request up to the date of June 7, 2017." [Doc. 70-6]. Insofar as it can

tell, the Court does not have these documents. There is an exhibit attached to Plaintiff's brief entitled,

"Case of Geremy Mathis: Disciplinary hearings" with a list of six "cases." [Doc. 70-5]. But this list

provides no information regarding the type of disciplinary charges against Geremy Mathis. The list

indicates one case was dismissed because Mathis was released from jail prior to the hearing. The

remaining cases were dismissed because, "[f]ailed to follow policy—Did not have hearing in policy

time frame." [Doc. 70-5]. Only two of the "cases" occurred before the October 15, 2015 assaults. [Id.]

This information is not evidence that the Defendants would have known Mathis presented a

substantial risk of serious harm to other inmates.

• Plaintiff stated in his deposition that he told guards that Mathis had

threatened to beat up others who did not participate in the riot.

Plaintiff could not identify the guards, so it is unknown whether the guards he told were the

individual Defendants in this case. Also, Plaintiff was a participant in the riot so he would not have

been targeted by Mathis. Moreover, Plaintiff explicitly denied telling any guard prior to either of the

assaults on October 11, 2015, that he was afraid of Mathis, Murray, and Byford. Rather, he told

unidentified guards that the pod "was crazy" and he wanted to be moved. This information does not

convey concern about one's safety.

• Plaintiff asserts Defendants knew Plaintiff and Mathis had been in an

altercation on the morning of October 11, 2015.

The first assault on October 11, 2015, took place inside the cell. As previously mentioned, the

cell has a solid door except for a very narrow window. There is no evidence that the officers could

see inside the cell when the first assault happened. Plaintiff was able to push the attackers out of his

cell where they continued to "have words." Call's incident report, which states he saw a verbal

altercation, supports Plaintiff's own deposition testimony that once outside the cell, the altercation

was verbal—not physical. The guards took reasonable action by asking Plaintiff what was going on,

but Plaintiff did not tell them he had been assaulted or that he was afraid. He said he did not know

what was going on. This interaction was not enough to apprise Defendants that Plaintiff was at

substantial risk of serious harm. After the guards left the dayroom, Plaintiff did not use the intercom

inside his cell to report his assault, not even after he heard Mathis, Murray, and Byford say they were

going to kill him.

• Plaintiff was assaulted a second time on October 11, 2015.

As with the first assault, the second assault took place inside Plaintiff's cell and would not

have been witnessed by guards outside the pod. Further, Plaintiff did not say he yelled for help while

it was occurring, and he did not report the assault when he exited the cell and sat down at the table.

Moments later, before he could be hit again, Officer Keith grabbed him and placed him against the

wall to protect him. At that point he was taken for a medical evaluation and removed to another pod.

Based on the evidence presented by Plaintiff, the Court concludes that Plaintiff cannot meet

the subjective component of the applicable rubric. Plaintiff has presented no evidence that, prior to

each assault on October 11, 2015: (1) the individual Defendants knew facts from which to infer

Mathis, Murray, and Byford presented a substantial risk of serious harm to the Plaintiff; (2) the

individuals Defendants did in fact draw the inference; and (3) the individual Defendants then

disregarded that risk. Rather, the evidence presented by Plaintiff demonstrates that, when the officers

finally understood that Mathis presented a physical threat to Plaintiff, they intervened, took Plaintiff

for medical care, and removed him permanently from that pod.

Because there was no underlying constitutional violation, Plaintiff has no constitutional claim

against Coffee County. Thomas v. City of Columbus, Ohio, 854 F.3d 361, 367 (6th Cir. 2017)

("Because no constitutional violations occurred, the district court properly granted summary judgment

on Mr. Thomas's failure-to-train claim against the city and Chief Jacobs. For a municipality to be

liable under 42 U.S.C. § 1983, a plaintiff must show harm 'caused by a constitutional violation.'"); see

also Murray v. Harriman City, No. No. 3:07–CV–482, 2010 WL 546590, at *7 (E.D. Tenn., Feb. 10,

2010) ("the court has found that the arresting officers did not violate the plaintiff's civil rights;

therefore, plaintiffs have not stated a viable claim for a § 1983 violation against the City of

Harriman.") Therefore, Defendants are entitled to judgment as to Plaintiff's failure to protect claim

asserted in Count I.

b. Deliberate Indifference to Serious Medical Needs

Plaintiff also alleged in Count I of the Amended Complaint that Coffee County, as well as

QCHC, had acted with deliberate indifference to his serious medical needs in violation of the

Fourteenth Amendment. The factual basis for this claim against Coffee County is the same as the

factual basis for this claim against QCHC which was dismissed by the District Court. It is not clear

to the Court that Plaintiff concedes he no longer has such a claim against Coffee County. Since the

same factual conducts underpins both claims and the standard of constitutional analysis is the same

for Coffee County as it was for QCHC, the District Court's decision dismissing Plaintiff's claim

against QCHC applies equally to the medical needs claim against Coffee County. See e.g., Whiteside

v. Duke, 2019 WL 2578260, at *4 (W.D. Tenn. 2019) (the court applied the same constitutional

standard for a medical care claim to a private entity providing health care in a prison as it would to a

municipality.) See also Johnson v. Corr. Corp. of Am., 26 F. App'x 386, 388 (6th Cir. 2001); Eads v.

State of Tenn., No. 1:18-cv-00042, 2018 WL 4283030, at *9 (M.D. Tenn. Sept. 7, 2018).

Consequently, to the extent Plaintiff continues to assert it, the Court concludes the Fourteenth

Amendment claim against Coffee County for deliberate indifference to serious medical needs lacks

merit and shall be dismissed.

3. Count IV—Claim Arising from the Event on January 14, 2017

Plaintiff alleges Cody Faust used excessive force when shooting him with a pepperball

launcher on January 14, 2017. The Due Process Clause of the Fourteenth Amendment protects a

pretrial detainee from the use of excessive force that amounts to punishment. Kingsley v. Hendrickson,

135 S.Ct. 2466, 2473 (2015). To prevail on a Fourteenth Amendment excessive force claim, "a pretrial

detainee must show only that the force purposefully or knowingly used against him was objectively

unreasonable. Id. The "objective reasonableness turns on the facts and circumstances of each

particular case." Id. (citation omitted). The Kingsley Court articulated the factors a court must consider

when evaluating such a claim:

A court must make this determination from the perspective of a reasonable officer on

the scene, including what the officer knew at the time, not with the 20/20 vision of

hindsight. A court must also account for the "legitimate interests that stem from [the

government's] need to manage the facility in which the individual is detained,"

appropriately deferring to "policies and practices that in th[e] judgment" of jail

officials "are needed to preserve internal order and discipline and to maintain

institutional security

Considerations such as the following may bear on the reasonableness or

unreasonableness of the force used: the relationship between the need for the use of

force and the amount of force used; the extent of the plaintiff's injury; any effort made

by the officer to temper or to limit the amount of force; the severity of the security

problem at issue; the threat reasonably perceived by the officer; and whether the

plaintiff was actively resisting. We do not consider this list to be exclusive. We

mention these factors only to illustrate the types of objective circumstances potentially

relevant to a determination of excessive force.

Id. (internal citations omitted) (brackets original).

On January 14, 2017, guards heard—over the intercom in the pod where Plaintiff was

located— some inmates saying they were going to stab someone. Concerned that someone was about

to be seriously injured or killed, the guards assembled to make entry into the pod. The Tower ordered

everyone in the pod to get down on the floor. Faust was advised that some inmates were refusing to

follow the order.4 From the perspective of a reasonable officer, use of the pepperball launcher was

reasonable because:

• When Faust entered the pod, Plaintiff was still sitting at the table. A

reasonable officer on the scene would have concluded that Plaintiff was

refusing the prior order to get on the floor.

• Faust had a legitimate institutional interest to maintain order and protect

other inmates. Someone in the pod had a shiv and intended to stab another

inmate. Immediate compliance with the order to get down could prevent

violence.

• Officers needed the inmates on the floor to safely search for the shiv.

• A pepperball launcher is nonlethal force. Plaintiffs injuries were relatively

minor—bruises that lasted a few days.

4 Plaintiff stated in his declaration that the pod did not have loudspeakers, but this statement was made in relation to the

pod in which he was incarcerated at the time of the October 11, 2015 assaults. [See Doc. Doc. 70-2, Cretacci Decl. ¶ 5].

He was moved to another pod permanently after the October 11, 2015 assaults.

• Use of a pepperball launcher allowed Faust to avoid dangerous direct

contact with a noncompliant inmate who might have a shiv.

• Plaintiff continued to delay his compliance, standing up, talking back to

Faust, turning around, trying to remove his poncho. Use of the pepperball

launcher again was reasonable for the same reasons listed above.

• Once Plaintiff got on the ground, Faust did not shoot him again.

In other words, under the circumstances—given the information that Faust had at the time

and the legitimate need to protect inmates from assault by another inmate with a deadly weapon—the

force used by Faust against Plaintiff was not constitutionally excessive. Once again, because there

was no underlying constitutional violation, Plaintiff has no constitutional claim against Coffee

County. Thomas v. City of Columbus, Ohio, 854 F.3d 361, 367 (6th Cir. 2017). Faust and Coffee

County are entitled to judgment as to Count IV.

IV. Conclusion

For the reasons stated herein, Defendants' Motion for Summary Judgment is GRANTED.

Plaintiff's action shall be dismissed in its entirety and a judgment entered in favor of Defendants.

ENTER.

/s/ Christopher H. Steger

UNITED STATES MAGISTRATE JUDGE