Dunlap v. Sevier County, Tennessee

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF TENNESSEE

AT KNOXVILLE

PEARL DUNLAP, as personal

representative of the estate of

JESSE P. DUNLAP, Case Number 18-00278

Honorable David M. Lawson

Plaintiff,

v.

SEVIER COUNTY, RONALD L. SEALS,

LARRY MCMAHAN, IAN MORLEAN,

KYLE MILLER, DAVID BUCHAN,

JOEY LEONARD, MALCOLM

BRANDRIFF, QCHC, INC. a/k/a QUALITY

CORRECTIONAL HEALTHCARE,

RACHEL PARTON, and RICKY NEICE,

Defendants.

/

OPINION AND ORDER GRANTING IN PART AND DENYING IN PART

PLAINTIFF’S MOTION FOR VOLUNTARY DISMISSAL WITHOUT PREJUDICE

AND GRANTING COUNTY DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

The plaintiff’s decedent, Jesse P. Dunlap, initially filed this action alleging that the

defendants violated his constitutional rights when he was an inmate at the Sevier County,

Tennessee jail. The County defendants (Sevier County, Ronald L. Seals, Larry McMahan, Ian

Morlean, Kyle Miller, David Buchan, Joey Leonard, and Malcolm Brandriff) moved for summary

judgment. The plaintiff did not respond to that motion. Instead, she filed a motion for voluntary

dismissal without prejudice. The County defendants oppose that motion. The Healthcare

defendants (QCHC, Inc. a/k/a Quality Correctional Healthcare, Rachel Parton, and Ricky Neice)

did not respond to the plaintiff’s motion. A dismissal of the case without prejudice would cause

undue prejudice to the County defendants. The same cannot be said, however, for the Healthcare

defendants. And the undisputed facts on the present record demonstrate that the County defendants

are entitled to a judgment of dismissal as a matter of law. The County defendants’ motion for

summary judgment will be granted, and the plaintiff’s motion to dismiss without prejudice will be

granted as to the Healthcare defendants but not the County defendants.

I.

Jesse Dunlap passed away while this case has been pending and his estate’s personal

representative was substituted as the plaintiff. The facts of the case, gleaned from the complaint

and the County defendants’ motion papers, are that the decedent was taken into custody at the

Sevier County Jail on July 4, 2017. Upon intake he was subjected to a screening that included

queries about his medical history. The only medical issues reflected in the intake records were (1)

history of hand surgery in 2000, (2) allergy to thorazine, (3) broken teeth and cavities, and (4) a

history of treatment for mental health issues including, depression and suicidal ideation and

prescriptions for various antipsychotic medications.

The records indicate that the decedent was placed on suicide watch in an observation cell,

and watch logs recorded observations at 15-minute intervals, noting that he was intact and well.

The suicide watch continued for three days until, after a reevaluation by a jail nurse, the plaintiff

was discharged from observation and placed in the general population. The next day, on July 8,

2017, the plaintiff fell off the top bunk bed in his cell. He was taken to LeConte Medical Center

for treatment. On July 24, 2017, he was released from jail.

Jesse Dunlap filed his complaint in this Court on July 5, 2018, alleging that the defendant

jailers and medical personnel neglected serious threats to his mental and physical well-being while

he was incarcerated in the Sevier County Jail. On September 17, 2018, the originally assigned

district judge issued a scheduling order that established, among other things, a deadline for

completion of all discovery on November 13, 2019, and a trial date of February 11, 2020. In

August 2019, after a suggestion of death was filed, the personal representative of the decedent’s

estate was substituted as plaintiff.

The County defendants filed a motion for summary judgment on September 16, 2019. On

October 17, 2019, the plaintiff filed a motion asking the Court to defer its ruling on defendants’

summary judgment motion and allow further “limited discovery.” The plaintiff never filed any

brief in opposition to the motion for summary judgment. On January 14, 2020, the matter was

reassigned to the undersigned. The Court then issued an order cancelling the jury trial and pretrial

deadlines pending a ruling on the defendants’ motion, and denying the plaintiff’s motion to defer

ruling and allow further discovery, after finding no good cause for further delay of the proceedings

and no excuse for the apparent neglect of the litigation by plaintiff’s counsel.

The plaintiff argued in her procedural motion that the Court’s rulings on her claims should

be deferred and more time allowed for discovery because (1) she never was informed before the

motion for summary judgment was filed that the defendants would assert defenses of qualified and

other immunities, (2) the development of the case by counsel was complicated by the passing of

the plaintiff’s decedent in the summer of 2019, and was delayed by the need to seek appointment

of a personal representative for the estate to be substituted as a party, (3) defendants’ counsel

unreasonably failed or refused to respond to informal email inquiries about scheduling depositions

that were conveyed by plaintiff’s counsel approximately nine weeks before the close of discovery,

and (4) discovery depositions of the individual defendants would lend crucial support to the

plaintiff’s rebuttal of their defenses. Plaintiff’s counsel also asserted, based on his experience in

this type of practice, that municipal defendants typically resist all discovery before receiving

rulings by the Court on any immunity defenses. But the Court found no good grounds to extend

the discovery period because the plaintiff never filed any motion to compel discovery, and it was

undisputed that she never served any requests for written discovery or notices of depositions under

Federal Rule of Civil Procedure 30. The Court further found that relief under Rule 56(d) was not

warranted because the plaintiff had not advanced any plausible or specific reasons why she could

not have obtained the facts essential to her opposition through the usual means and within the time

previously allowed for discovery in this matter.

II.

The plaintiff has moved to dismiss the entire case voluntarily without prejudice. The

County defendants predictably oppose that motion and seek a ruling on their summary judgment

motion. The Healthcare defendants have not responded.

“Federal Rule of Civil Procedure 41(a)(2), for voluntary dismissal by court order, provides

that ‘an action may be dismissed at the plaintiff’s request only by court order, on terms that the

court considers proper. . . . Unless the order states otherwise, a dismissal under this paragraph (2)

is without prejudice.’” Malibu Media, LLC v. Redacted, 705 F. App’x 402, 407 (6th Cir. 2017).

Dismissal without prejudice is the usual outcome of such a motion, but it may be denied upon a

showing that the defendant “would suffer ‘plain legal prejudice’ as a result of a dismissal without

prejudice, as opposed to facing the mere prospect of a second lawsuit.” Grover by Grover v. Eli

Lilly & Co., 33 F.3d 716, 718 (6th Cir. 1994). “In determining whether a defendant will suffer

plain legal prejudice, a court should consider such factors as the defendant’s effort and expense of

preparation for trial, excessive delay and lack of diligence on the part of the plaintiff in prosecuting

the action, insufficient explanation for the need to take a dismissal, and whether a motion for

summary judgment has been filed by the defendant.” Ibid.

The plaintiff’s motion is in substance merely a rehash of arguments already presented and

a transparent attempt to procure by other means the scheduling relief that the Court previously

denied, by rebooting the entire litigation. The pertinent factors all weigh heavily against that

indulgence, and for several reasons it would work plain legal prejudice if allowed, at least against

the County defendants.

First, the County defendants’ efforts at preparing for trial are at least tangible, although

modest, where counsel has invested time in propounding discovery and filing a dispositive motion

addressing the various claims pleaded. Second, as the Court previously found, there is no excuse

apparent from the record for the complete failure by plaintiff’s counsel to make any detectable

effort to obtain the discovery that the plaintiff now says she needs to rebut the defendants’

challenges. That lack of diligence contrasts with conduct of the County defendants’ counsel, who

worked up the case within the original case management timeline established by the Court. Third,

the plaintiff has offered no credible justification for allowing a dismissal without prejudice at this

stage of the case, other than her obvious desire to restart the litigation and secure by other means

the scheduling relief that the Court previously found no good reason to grant. Finally, dismissal

without prejudice is not appropriate where a dispositive motion is pending before the Court and

was filed well in advance of the request for voluntary dismissal.

These same factors, however, do not weigh as heavily for the Healthcare defendants. They

have not opposed the motion to dismiss, and they appear to have been only barely more zealous in

their pursuit of the litigation than the plaintiff, having engaged in no apparent efforts to obtain

discovery or engage in any timely dispositive motion practice. Without any such investment in

the case, a dismissal without prejudice, which is the norm, Malibu Media, 705 F. App’x at 407,

would not cause the Healthcare defendants any “plain legal prejudice,” and the inconvenience

would not extend beyond “the mere prospect of a second lawsuit,” Grover, 33 F.3d at 718.

The Court will grant the motion and dismiss the case without prejudice as to the Healthcare

defendants and deny it as to the County defendants.

III.

The County defendants — and only the County defendants — have moved for summary

judgment. The Healthcare defendants, separately represented, did not file any dispositive motion.

Instead, they attempted to file a “joinder” in the county defendants’ motion more than six months

after the dispositive motion filing deadline had lapsed, purporting to point out that the arguments

presented by the County defendants offered grounds for the Court to resolve the entire litigation

without a trial. The Court struck that joinder (styled as a “response” by the co-defendants), finding

that it was untimely and procedurally improper.

Summary judgment is appropriate “if the movant shows that there is no genuine dispute as

to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(a). When reviewing the motion record, “[t]he court must view the evidence and draw all

reasonable inferences in favor of the non-moving party, and determine ‘whether the evidence

presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that

one party must prevail as a matter of law.’” Alexander v. CareSource, 576 F.3d 551, 557-58 (6th

Cir. 2009) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986)).

The County defendants raise qualified immunity as a defense to the claims against the

individual defendants and contend that the plaintiff has not supported her claims against the

County with evidence of a custom- or policy-based constitutional violation. To overcome the

qualified immunity defense, the plaintiff must offer evidence that shows that her decedent suffered

a violation of a constitutional right, and also must show that the right was clearly established at the

time. Baynes v. Cleland, 799 F.3d 600, 609 (6th Cir. 2015) (citing Harlow v. Fitzgerald, 457 U.S.

800, 818 (1982); Phillips v. Roane County, Tenn., 534 F.3d 531, 538-39 (6th Cir. 2008)). This

motion can be decided on the first element.

“Section 1983 of Title 42 of the United States Code imposes civil liability on those

individuals who, acting under color of state law, deprive a citizen of, among other things, his

federally guaranteed constitutional rights.” Baynes v. Cleland, 799 F.3d 600, 607 (6th Cir. 2015)

(citing Brosseau v. Haugen, 543 U.S. 194, 197-98 (2004)). “To state a claim under § 1983, a

plaintiff must set forth facts that, when favorably construed, establish: (1) the deprivation of a right

secured by the Constitution or laws of the United States; (2) caused by a person acting under the

color of state law.” Ibid. (citing Sigley v. City of Parma Heights, 437 F.3d 527, 533 (6th Cir.

2006)). The plaintiff must establish the liability of each individual defendant by that person’s own

conduct. Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009) (“Because vicarious liability is inapplicable

to Bivens and § 1983 suits, a plaintiff must plead that each Government-official defendant, through

the official’s own individual actions, has violated the Constitution.”).

“‘[A] prisoner’s Eighth Amendment right is violated when prison doctors or officials are

deliberately indifferent to the prisoner’s serious medical needs.’” Richmond v Huq, 885 F.3d 928,

937 (6th Cir. 2018) (quoting Comstock v. McCrary, 273 F.3d 693, 702 (6th Cir. 2001)). “An

Eighth Amendment claim on these grounds is comprised of an objective and a subjective

component.” Id. at 937-38. “Thus, ‘a prison official’s act or omission must result in the denial of

the minimal civilized measure of life’s necessities.’” Id. at 938 (quoting Farmer v. Brennan, 511

U.S. 825, 834 (1994)). “‘[A] medical need is objectively serious if it is one that has been diagnosed

by a physician as mandating treatment or one that is so obvious that even a lay person would easily

recognize the necessity for a doctor’s attention.’” Ibid. (quoting Blackmore v. Kalamazoo County,

390 F.3d 890, 897 (6th Cir. 2004)). “The subjective component requires a showing that the

‘official kn[ew] of and disregard[ed] an excessive risk to inmate health or safety.’” Id. at 939

(quoting Farmer, 511 U.S. at 837). “‘[T]he official must both be aware of facts from which the

inference could be drawn that a substantial risk of serious harm exists, and he must also draw the

inference.’” Ibid. “Failure by a jail medical staff to adhere to a prescribed course of treatment

may satisfy the subjective component of an Eighth Amendment violation.” Ibid.

Because the plaintiff has failed to advance any record evidence in support of her claims,

the only pertinent evidence before the Court comes from the sparse materials in the decedent’s jail

file that were submitted by the moving defendants. That evidence was discussed earlier.

Without the benefit of any opposition or countervailing record evidence supplied by the

plaintiff, the Court cannot draw any reasonable inferences from the available record suggesting

either that any of the individual County defendants personally were involved in any violation of

the decedent’s rights, or that they perceived and ignored any of his serious medical needs. It is

axiomatic that a party must come forth with specific evidence from the record in order to defeat a

properly supported motion for summary judgment; here the plaintiff offers none. Moreover, the

plaintiff concedes in her motion for voluntary dismissal that she has essentially no proofs to put

forth without the benefit of “further discovery.” But the Court allowed the parties ample time for

discovery, and the plaintiff did nothing in that time to obtain any.

“Rule 56(c) requires a party objecting to a motion for summary judgment to support its

assertions by ‘citing . . . particular parts of materials in the record.’” Dice Corp. v. Bold Techs.,

556 F. App’x 378, 384 (6th Cir. 2014). Consequently, the Sixth Circuit has noted that it does “not

entertain on appeal factual recitations not presented to the district court when reviewing a district

court’s decision.” Ibid. (citing Chi. Title Ins. Corp. v. Magnuson, 487 F.3d 985, 995 (6th Cir.

2007); Guarino v. Brookfield Twp. Trustees, 980 F.2d 399, 404 (6th Cir. 1992)). “This burden to

respond is really an opportunity to assist the court in understanding the facts.” Guarino, 980 F.2d

at 405. “But if the non-moving party fails to discharge that burden — for example, by remaining

silent — its opportunity is waived and its case wagered.” Ibid. Moreover, “there is no duty

imposed upon the trial court to ‘search the entire record to establish that it is bereft of a genuine

issue of material fact,’” and, consequently, “a court’s reliance on the facts advanced by the movant

is proper and sufficient.” Id. at 404 (quoting Street, 886 F.2d at 1480).

Here, nothing in the record suggests that any of the individual defendants perceived and

ignored any objectively serious medical need. The only condition of significant concern noted in

the medical intake was the history of mental health issues; that appropriately was addressed by

placing the decedent on suicide watch, during which time the decedent frequently was observed to

be well and did not harm himself. He was released from suicide watch after a reevaluation by a

nurse indicated that he had no present serious mental health concerns. When he fell off a top bunk

bed the next day, he was taken to a medical facility to be treated for his injuries. So far as the

record suggests, he was released three weeks later without further incident. None of those

circumstances demonstrate plausibly any violation of the plaintiff’s right to receive appropriate

medical care for a serious health condition. The named employees of the Sevier County Jail are

entitled to qualified immunity, because the plaintiff has failed to present any record evidence to

sustain his claims that any of them individually violated his rights under any applicable law, federal

or state.

Sevier County cannot be held liable under section 1983 solely for the acts of its agents; it

is accountable under that statute for its own conduct. Monell v. Dep’t of Soc. Servs., 436 U.S. 658,

691 (1978) (holding that “a municipality cannot be held liable [under section 1983] solely because

it employs a tortfeasor — or, in other words, a municipality cannot be held liable under § 1983 on

a respondeat superior theory”). The plaintiff, therefore, must point to an official policy, custom,

or practice of that contractor as the source of the constitutional violation. Johnson v. Karnes, 398

F.3d 868, 877 (6th Cir. 2005). And she must allege facts that show a causal connection between

the policy and the injury. Bd. of Cty. Commissioners v. Brown, 520 U.S. 397, 404 (1997);

Heyerman v. Cty. of Calhoun, 680 F.3d 642, 648 (6th Cir. 2012). However, the record is silent on

what custom, policy, or practice of the County could have been a motivating force behind any

alleged (so far as the record shows, nonexistent) constitutional violations. And there is no evidence

that any custom, policy or practice of the County played any role in any harm that befell the

plaintiff’s decedent. The County therefore is entitled to judgment as a matter of law on the Monell

claims.

IV.

The plaintiff has come forth with no evidence to sustain her claims, and the record supplied

by the moving defendants does not demonstrate any violation of the decedent’s constitutional

rights while he was in the defendants’ custody. Although the plaintiff has moved to dismiss the

case against all defendants without prejudice, the County defendants would suffer plain legal

prejudice as a result of a dismissal without prejudice. There is no basis to conclude, however, that

the Healthcare defendants would be prejudiced by a dismissal of the case against them without

prejudice.

Accordingly, it is ORDERED that the plaintiff’s motion for voluntary dismissal without

prejudice (ECF No. 54) is GRANTED IN PART AND DENIED IN PART. The complaint is

dismissed without prejudice as to defendants QCHC, Inc. a/k/a Quality Correctional Healthcare,

Rachel Parton, and Ricky Neice, only. The motion is DENIED in all other respects.

It is further ORDERED that the County defendants’ motion fur summary judgment (ECF

No. 31) is GRANTED. The complaint is DISMISSED WITH PREJUDICE against defendants

Sevier County, Ronald L. Seals, Larry McMahan, Ian Morlean, Kyle Miller, David Buchan, Joey

Leonard, and Malcolm Brandiff.

s/David M. Lawson

DAVID M. LAWSON

United States District Judge

Sitting by special designation

Date: September 17, 2020