Brown v. Macon County Sheriff's Department

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF TENNESSEE

NORTHEASTERN DIVISION

JONATHON SCOTT BROWN, )

LEVI MULLINS, KEVIN HARRISON, )

LUCAS TRACY, TIMOTHY MANN, )

ROY GARDNER, WILLIAM ROWE, )

SHAWN FEINSTEIN, and JOHN )

DOE, )

)

Plaintiffs, )

)

v. ) Docket No.: 2:21-cv-00009

)

THE MACON COUNTY SHERIFF’S, )

DEPARTMENT d/b/a MACON )

COUNTY JAIL, SHERIFF MARK )

GAMMONS, SCOTTY SUTTON, )

JEFF WILSON, MACON COUNTY, )

KIM SUMMERS, and JOHN DOE, )

)

Defendants. )

************************************

BRANDON D. TAYLOR, CHESTER L. )

LOUDY, SCOTTIE GRIFFIN, CHAD )

REYNOLDS, JEFFREY T. FISHER, )

RANDALL D. GUFFEY, TYLER R. )

BERG and CALVIN O. TANKESLY )

)

Plaintiffs, )

)

v. ) Docket No.: 2:21-cv-00040

)

THE MACON COUNTY SHERIFF’S, )

DEPARTMENT d/b/a MACON )

COUNTY JAIL, SHERIFF MARK )

GAMMONS, SCOTTY SUTTON, )

JEFF WILSON, MACON COUNTY, )

and JOHN DOE, )

)

Defendants. )

MEMORANDUM OPINION

In this consolidated civil right actions brought by former inmates of the Macon County Jail

in Lafayette, Tennessee, Defendant Kim Summers has filed a Motion for Summary Judgment (Doc.

No. 117) and accompanying memorandum (Doc. No. 118), to which Plaintiffs have responded in

opposition (Doc. No. 128) and Summers has replied (Doc. No. 129). The remaining Defendants

have filed a separate Motion for Summary Judgment (Doc. No. 136) with accompanying

memorandum (Doc. No. 137) to which Plaintiffs have also responded in opposition (Doc. No. 146)

and Defendants have replied (Doc. No. 150). Also before the Court is Plaintiffs’ Motion to Amend

Case Management Order and Reconsider Motion to Amend (Doc. No. 167), to which Defendants

have responded in opposition (Doc. No. 168).

For the reasons that follow, Summers’ Motion for Summary Judgment will be granted while

the other Motion for Summary Judgment will be granted in part and denied in part.1 The Motion to

Amend and Reconsider will be denied.

I. Factual Background, Procedural Posture, And Standard Of Review

In support of the Motion for Summary Judgment, and in accordance with this Court’s Local

Rule 56.01, Defendants’ filed a statement of undisputed facts (Doc. No. 138) , to which Plaintiff’s

responded in opposition (Doc. No. 147) (“SOF”).2 So far as material, those facts show the

1 Because the Court can resolve the motions for summary judgment on the papers, Plaintiffs’ Motion

for Oral Argument (Doc. No. 155) will be denied.

2 With respect to many of the introductory facts, Plaintiffs claim to be without specific knowledge

of the fact asserted and so admits the same. Because those facts are supported by evidentiary material, the

Court accepts them as true for summary judgment purposes.

Further, with respect to several facts, Plaintiffs simply cite deposition testimony, without page

references. This does not comply with this Local Rule 56.01(c)(3) that requires: “Each disputed fact must

be supported by specific citation to the record.”

2

following.3

Sheriff Mark Gammons began noticing in 2012 that the jail was become fuller and nearing

its capacity. To alleviate the problem, he and the County requested that the State of Tennessee

accept inmates into the state prison system, and/or place Macon County inmates in other county jails.

Gammons also requested a larger budget so that he could purchase more mats, clothing, and food

for inmates, and increase the number of staff on each shift. Discussions were also had with the local

judges and district attorney about the overcrowding issue. (SOF ¶¶ 1-4).

The efforts to reduce the number of inmates at the jail proved to be insufficient, and Macon

Count was found by the State to be overcrowded and understaffed. This led to a Plan of Action

instituted by the State. (Id. 5-6). As a part of the Plan, the County looked into expanding the present

jail or constructing a larger facility. (Id. ¶ 6-7). In the interim, the County looked at stopgap

measures to reduce overcrowding by: (1) refraining from executing probation violation warrants; (2)

asking probation officers to stop violating a probationer unless it was absolutely necessary; and (3)

looking into alternative rehabilitation programs for inmates. (Id. ¶¶ 9, 10, 12).

In April 2019, the County began reviewing sketches for expanding the jail. However, also

during 2019, the jail inmate populations continued to increase monthly, prompting officials to hold

“one or two inmates” in the multi-purpose room (“MPR”) or isolation room on a temporary basis.

(Id. ¶ 17). Towards the end of 2019, some inmates asked to stay in the MPR room, a practice

approved by Gammons, so long as the inmates were given restroom breaks and provided shower

time. (Id. ¶ 19).

3 Summers, too, filed a statement of facts in support of her own motion, but there are only two such

facts: she was employed as a corrections officer at the Macon County Jail and left the employ of Macon

County on April 16, 2020. (Doc. No. 119 at 2). Plaintiffs do not dispute those facts.

3

Against this backdrop, Plaintiff Jonathan S. Brown, proceeding pro se, filed suit on February

26, 2021 against the Macon County Sheriff’s Department alleging cruel and unusual punishment in

violation of the Eighth and Fourteenth Amendments. (Docket No. 2:21-cv-00009, Doc. No. 1).

After initial screening by the Court, the Sheriff’s Department was dismissed, but Plaintiff was

allowed to amend his Complaint. (Id. Doc. No. 5). On May 7, 2021, an Amended Complaint was

filed by counsel that added Levi Mullins, Kevin Harrison, Lucas Tracy, Timothy Mann, Roy

Gardner, William Rowe and Shawn Feinstein as Plaintiffs. The Macon County Sheriff’s Department

d/b/a the Macon County Jail, Sheriff Mark Gammons, Scotty Sutton (Jail Administrator), Jeff

Wilson (Assistant Jail Administrator), Kim Summers (Jailer), John Doe, and Macon County were

named as Defendants. (Id. Doc. No. 12).4

The Amended Complaint sets forth three causes of action under 42 U.S.C. § 1983. Count

I alleges “Deliberate Indifference to Serious Medical Needs Against the Correctional Officers of the

Jail”; Count II alleges “Deliberate Indifference to Required Aspects of Inmate Dwelling”; and Count

III alleges “Unconstitutional Conditions of Confinement.” Count IV is as state law negligence claim

brought against all Defendants.

That Amended Complaint (in what the Court will hereafter refer to as the “Brown case”) is

large on hyperbole but short on specific factual allegations, with broad brushes used to paint each

individual’s specific claims and the Defendants to whom the allegation is directed. One thing is

clear, however. Plaintiffs in the Brown case complain about actions (or inactions) that occurred

“specifically in and around January 2020 until late February 2020.” Indeed, that exact phrase is used

4 Other Defendants, such as the Commissioner of the Tennessee Department of Corrections and the

Executive Director of the Tennessee Corrections Institute have since been dismissed by agreement of the

parties. (Doc. No. 63).

4

when identifying each of the eight named Plaintiffs. (Am. Cmp. ¶¶ 1-8). The Amended Complaint

also contains no other date in relation to Plaintiffs and their complaints about their incarceration in

the Macon County Jail.

The Brown case was followed by what the Court will refer to as the “Taylor case” filed on

October 6, 2021. (Doc. No. 2:21-cv-00040). There, Brandon D. Taylor, Chester L. Loudy, Scottie

W. Griffin, Chad Reynolds, Jeffrey T. Fisher, Randall D. Guffey, Tyler R. Berg and Calvin O.

Tankesly sued the same Defendants as in Brown. The Complaints in the two cases are substantially

the same, including the hyperbole and lack of a link between a specific Defendant and the activities

complained of. Likewise, the Taylor case advances the same four causes of action as in the Brown

case. Conspicuously absent, however, is the repeated reference to “in and around January 2020 until

February 2020.” Instead, the dates in the Taylor case are linked to a specific Plaintiff and his period

of incarceration. Thus, for example, the Complaint alleges that “Plaintiff Taylor was incarcerated

at all times complained of herein, but more specifically in and around March 22, 2021 through May

6, 2021”; “Plaintiff Loudy was incarcerated at all times complained of herein, but more specifically

in and around July 9, 2021 through July 13, 2021”; “Plaintiff Griffin was incarcerated at all times

complained of herein, but more specifically in and around September 1, 2019 until late February

2020,” and so on. (Doc. No. 2:21-cv-00040 at ¶¶ 2-4). Given these various dates, the phrase “all

times complained of herein” is a bit nebulous.

Because of the substantial overlap in the cases, the Court consolidated Brown and Taylor for

discovery, (Doc. No. 88) and trial (Doc. No. 116), with Brown designated as the lead case.

Accordingly, references to “Plaintiffs” from here on will be a reference to the Plaintiffs in both cases,

unless otherwise noted. Similarly, any reference to “Complaint” will be to the Amended Complaint

5

filed in Brown. Finally, as a housekeeping matter, the Court notes that in response to Defendants’

Motion for Summary Judgment, Plaintiffs concede that Defendants are entitled to summary

judgment on Count I and IV. Accordingly, the focus now is on Plaintiffs’ claims that Defendants

were deliberately indifferent to the housing conditions at the Macon County Jail as alleged in Count

II, and that Plaintiffs were subject to unconstitutional conditions of confinement as alleged in Count

III.

The factual allegations underlying Plaintiffs’ constitutional claims under Counts II and III

are set forth in the Complaint as follows:

51. Plaintiffs were forced to urinate in a milk jug that was provided to Plaintiffs by

Defendant Doe and Defendant Summers;

52. Plaintiffs, having no access to the proper human waste receptacle and with no

access to any sort of plumbing in which to rid their waste in (defecate), did so in trash

bags, which were the only container they could utilize. The mental trauma associated

with some of the post-traumatic stress disorder like symptoms was a direct and

proximate cause from the humiliation suffered while being forced to use the

bathroom in such conditions;

53. Plaintiffs had no hand washing abilities and had to ask to wash their hands

sometimes being denied access for upwards of two to three (2-3) days at a time and

resorted to beating on the door or covering the camera that monitored the Plaintiffs

to get the attention of the guards that were watching in the tower;

54. Plaintiffs had no bed that lifted them off the floor;

55. Plaintiffs were given a pillow and a wool blanket along with a thin mat in which

to sleep on the floor with;

56. Plaintiffs were housed with ten to fifteen (10-15) other men at any given time in

the MPR room;

57. There was a room called the “ISO” room or isolation room that inmates were

housed in similar to the “MPR” room;

58. The ISO room had no running water;

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59. The ISO room had no human waste toilet;

60. Plaintiffs would defecate in a drain located in the middle of the room;

61. Plaintiffs would eat in this room while their waste was in the middle of the floor

as [no one] would clean the area after Plaintiffs were forced to defecate in the drain[.]

(Am. Cmp. ¶¶ 51-61). As a result of having to endure these conditions, Plaintiffs claim that they

suffered pain and mental distress.

At this point, of course, Plaintiffs’ allegations are largely irrelevant because Defendants have

filed a motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure and the

standards governing that rule guide this Court’s analysis. These are the applicable principles: (1)

summary judgment is only appropriate where there is no genuine issue as to any material fact and

the movant is entitled to judgment as a matter of law, Fed. R. Civ. P. 56(a); (2) the facts and

inferences must be construed in favor of the nonmoving party, Van Gorder v. Grand Trunk W. R.R.,

Inc., 509 F.3d 265, 268 (6th Cir. 2007); (3) the Court does not weigh the evidence, or judge the

credibility of witnesses when ruling on the motion, Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

249 (1986); and (4) the mere existence of a scintilla of evidence in support of the nonmoving party’s

position is insufficient to survive summary judgment, Rodgers v. Banks, 344 F.3d 587, 595 (6th Cir.

2003).

For obvious reasons, Defendants’ focus in their Statement of Facts relate to the defenses they

have raised, more specifically that many of Plaintiffs’ claims are untimely; Plaintiffs’ failed to

exhaust their administrative remedies; and Defendants are entitled to qualified immunity.

In this vein, and ignoring facts relating to Plaintiffs’ allegation surrounding medical care as

alleged in Count I (which Plaintiffs concede should be dismissed) Defendants Statement of Facts and

7

Plaintiffs’ responses thereto show the following:

• Defendants assert that the jail has a “kiosk system” from which inmates can

purchase commissary items. The kiosk also contains the inmate handbook which

contains a grievance policy. However, this fact is disputed based upon the deposition

testimony of at least two Plaintiffs. Brown testified that there was no kiosk in the

isolation room or MPS, nor were there any complaint or request forms in those areas

of the jail. Reynolds testified that he only became aware of the kiosk when he was

last arrested and placed in a pod with other inmates He also claims that the kiosk

system was not introduced until September 2021. (SOF ¶¶ 18, 19).

• Defendants state that, “[a]t no time was Gammons made aware of any complaints,

nor did he receive any complaints about any of the issues now raised by the plaintiffs

in their complaint.” (Declaration of Mark Gammons, ¶ 15). However, this, too, is

disputed. Mann claims that, when inmates were complaining about the conditions

in the MPR room, Gammons told them to “shut up.” Similarly, Taylor testified that

he complained to Gammons when Gammons was in the MPR room, but Gammons

ignored him. (SOF ¶ 31).

•Defendants claim that Wilson was never made aware of, nor did he have reason to

know, that inmates were not receiving regular bathroom breaks or allowed to take

showers. However, at least one Plaintiff disputes this. Specifically, Mann claims

that he pounded on and kicked the door requesting to use the bathroom but Wilson

responded, “you keep kicking that door, but it ain’t [sic] going to make me open it

up no quicker. There’s a hole in there you can sh[**] in. There’s a milk jug you can

piss in” while audibly laughing. (SOF ¶ 38 citing Mann Depo. at 147).

With respect to individual Defendants and their dates of incarceration, the Statement of Facts

and response thereto show the following:

Brown Case

Brown was incarcerated in the Macon County Jail from December 11, 2019 until

March 13, 2020. (SOF ¶ 39).

Mullins was incarcerated from November 2, 2019 to June 29, 2020, and housed in

the MPR from January 22, 2020 until February 21, 2020. While Defendants claim

that Mullins did not have to urinate in a jug for the first few days he was incarcerated

in the old visitation room, Mullins claims he had to do so from day one. Mullins

concedes that he was told he would shower every few days and would be provided

a bathroom break every few hours. The reality was otherwise according to Mullins,

and it was worse on the night shift. According to him, inmates would knock on the

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door requesting a bathroom break, but jailers would “get to it when they could.” (Id.

40-43).

Harrison was incarcerated from December 19, 2019 to February 14, 2020. (Id. 7 44).

Tracy was incarcerated from November 21, 2018 to June 3, 2021. He was housed

in the MPR on January 13 — 20, 2020; May 27, 2020 to June 1, 2020; and June 20

— 21,2020. Defendants claim that Tracy filed a couple of grievances, one pertaining

to an officer calling him names on May 26, 2020, and another one on December 28,

2020, about having to beg to use the restroom and wanting to move to a bigger cell.

Tracy does not recall having discussion with Sutton about those matters. (Id. {| 45-

48).

Mann was incarcerated from December 24, 2019 to February 14, 2020; June 11, 2020

to August 30, 2020; and September 5, 2020 to July 15, 2021. He was housed in the

MPR for much of the period between the end of December 2019 and February 14,

2020. On January 21, 2020, Mann filled out an Inmate Request/Grievance form

requesting to use a phone card because he could not use one while in the MPR room.

A few days later, while in the shower line, Mann spoke with Sutton about his request

and also stated that he needed more bathroom breaks and more frequent showers. In

response, Sutton claims he prepared a shower schedule on January 23, 2020, hung

it in the sergeant’s room, and informed the staff of the need to rotate showers. (Id.

qD 52-55).°

Gardner was incarcerated from December 4, 2019 to April 10, 2020. (d. 4] 55).

Rowe was incarcerated from August 3 — 6, 2020 and March 31, 2021 to February 18,

2022. At the time the Taylor case was filed, Rowe was still incarcerated and had not

filed any grievance with regard to any of the issue alleged in the complaint. (Id. 9]

58-60). He claims to have complained to a guard about use of bags for defecation in

the MPR room, but the guard never registered it as a formal complaint. (Id. §] 60).

Feinstein was incarcerated from May 8, 2020 to May 1, 2021. He was housed in the

MPR on May 13, 2020 and again on August 5 — 6, 2020. (Id. § 63).

Taylor Case

Taylor was incarcerated from March 22, 2021 to July 29, 2021. He was placed in the

isolation room from April 30, 2021 to May 1, 2021 and again from May 7-11, 2021.

> Tn their Statement of Facts, Defendants erroneously list this as happening in January 2023.

However, Sutton’s response to Mann’s grievance wherein he stated that he was preparing a shower schedule

is dated “1-23-20.” (Doc. No 139-2 at 39, Sutton Dec. Ex. R).

He also claims to have spent a few hours in the MPR upon first arriving at the jail.

While Defendants deny it, Taylor contends he wrote out complaints to Sutton and

Wilson and attempted to speak with Gammons about the jail conditions. (Id. | 65-

67).

Loudy was incarcerated from February 26, 2021 to April 1, 2022. Like Taylor, he

claims to have spent a few hours in the MPR, but Defendants deny it. (Id. 4] 68-69).

Griffin was incarcerated from November 22, 2019 to April 1, 2020. (id. § 70).

Reynolds was incarcerated from February 17, 2021 to at least October 6, 2021, but

was never housed in the MPR. He filed several grievances, none of which,

apparently, were related to the living conditions in the jail. (Id. J] 71, 72).

Fisher was incarcerated from September 8, 2020 to December 7, 2020. He was

housed in the MPR on several occasions: November 6 — November 7; November 9

— 19, 2020; and November 27, 2020 to December 1, 2020. Defendants claim Fisher

made no complaints about his conditions of confinement, but Fisher claims he made

plenty of complaints. He acknowledges receiving the opportunity to shower every

other day. (Id. §§] 75-78).

Guffey was incarcerated from January 22 — 27, 2021 and held in the MPR room for

almost this entire period. (Id. {[] 80, 81).

Berg was incarcerated from January 14, 2020 to February 28, 2020. (Id. 4 82).

Tankesly was incarcerated from October 12, 2020 to November 10, 2020 and from

January 28, 2021 to July 6, 2022. He was housed in the MPR from March 4, 2021

to March 6, 2021; April 2 — 4, 2021; and on July 14, 2021. He may also have been

housed there for a period in October 2020. While Defendants contend Tankesly

never complained, he claims to have complained repeatedly. (Id. §[ 83-85).

Based on these facts,° the Court turns to the pending motions.

II. Motions for Summary Judgment

As noted, Plaintiffs remaining claims are brought pursuant to 42 U.S.C. § 1983. That statute

® It appears that while some inmates may not have been housed in the MPR, they may have been

housed elsewhere (such as in the ISO) that had the same issues with lack of running water and bathroom

facilities.

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“provides a civil enforcement mechanism for all inmates who suffer constitutional injuries at the

hands of ‘[a]ny person acting under color of state law.’” Ford v. Cnty. of Grand Traverse, 535 F.3d

483, 494 (6th Cir. 2008) (quoting 42 U.S.C. § 1983). Accordingly, to survive summary judgment,

a plaintiff must demonstrate a genuine issue of material fact “that a person acting under color of state

law deprived him of a right secured by the Constitution or laws of the United States.” Green v.

Throckmorton, 681 F.3d 853, 859–60 (6th Cir. 2012). And, as will be demonstrated below, a

plaintiff must also show that he filed suit in a timely fashion, that he exhausted his available

administrative remedies, and that there is sufficient evidence to hold a particular defendant liable.

A. Statute of Limitations

“The statute of limitations applicable to a § 1983 action is the state statute of limitations

applicable to personal injury actions under the law of the state in which the § 1983 claim arises.”

Eidson v. State of Tennessee Dep't of Children's Servs., 510 F.3d 631, 634 (6th Cir. 2007) (citing

Kuhnle Bros., Inc. v. County of Geauga, 103 F.3d 516, 519 (6th Cir.1997)). In Tennessee, this

limitation period is one year based on Tennessee Code Annotated § 28–3–104(a). Howell v. Farris,

655 F. App’x 349, 351 (6th Cir. 2016) (citing Hughes v. Vanderbilt Univ., 215 F.3d 543, 547 (6th

Cir. 2000)).

Defendants argue they are entitled to summary judgment with respect to all of the Brown

Plaintiffs because they complain of events that occurred between January and late February 2020,

but the Amended Complaint was not filed until more than a year later on May 7, 2021. To get

around this bar, Plaintiffs assert that the Amended Complaint relates back to the time of the original

filing of the pro se complaint by Brown on February 26, 2021, which was within the one-year

limitations period. Alternatively, Plaintiffs argue that their claims are subject to the continuing

11

violations doctrine and the discovery rule. The Court is unpersuaded by any of Plaintiffs’ arguments.

In their brief, Plaintiffs cite and rely on state law and Tennessee Civil Procedure Rule 15 in

arguing that the Amended Complaint relates back to the original pro se filing. However, “the

question of whether an amendment relates back to the date of the original complaint is a question

of federal procedure not controlled by state law even in a diversity case.” Simmons v. S. Cent.

Skyworker’s, Inc., 936 F.2d 268, 270 (6th Cir. 1991); accord Am. Annuity Grp. v. Guar.

Reassurance Corp. Liquidating Tr., 55 F. App’x 255, 256 (6th Cir. 2003).

Rule 15(c) of the Federal Rules of Civil Procedure governs relation back in federal cases by

providing in pertinent part:

(1) When an Amendment Relates Back. An amendment to a pleading relates back to

the date of the original pleading when:

(A) the law that provides the applicable statute of limitations allows

relation back;

(B) the amendment asserts a claim or defense that arose out of the

conduct, transaction, or occurrence set out—or attempted to be set

out—in the original pleading; or

(C) the amendment changes the party or the naming of the party

against whom a claim is asserted, if Rule 15(c)(1)(B) is satisfied and

if, within the period provided by Rule 4(m) for serving the summons

and complaint, the party to be brought in by amendment:

(i) received such notice of the action that it will not be

prejudiced in defending on the merits; and

(ii) knew or should have known that the action would

have been brought against it, but for a mistake

concerning the proper party’s identity.

Fed. R. Civ. P. 15(c). At issue here is subsection (C), and the analysis is controlled by the Sixth

Circuit decision in Asher v. Unarco Material Handling, Inc., 596 F.3d 313, 318 (6th Cir.2010).

12

Asher was a case of “first impression in [the Sixth] Circuit,” and, like here, presented “the

question of whether Rule 15(c) permits relation back of an amendment adding otherwise untimely

plaintiffs and their claims to a timely-filed complaint.” Id. at 317. After noting that “the precedent

of this circuit clearly holds that ‘an amendment which adds a new party creates a new cause of action

and there is no relation back to the original filing for purposes of limitations,’” id., (quoting In re

Kent Holland Die Casting & Plating, Inc., 928 F.2d 1448, 1449 (6th Cir.1991)), the Sixth Circuit

went on to hold:

Although the new plaintiffs are correct that our prior decisions applying this rule

involved plaintiffs’ attempts to add defendants after the statute of limitations expired,

they offer no authority or persuasive justification for treating plaintiffs differently

from defendants and allowing untimely plaintiffs to ride piggyback on the claims of

timely plaintiffs. Indeed, the plain language of Rule 15(c) does not authorize the

exception advanced by the new plaintiffs.

Rule 15(c)(1)(B) allows relation back of an amendment asserting a “claim or

defense,” but it does not authorize the relation back of an amendment adding a new

party. Similarly, Rule 15(c)(1)(C) permitting relation back of an amendment

changing a party or its name applies, by its plain language, to changes to defendants.

. . . Although various courts have extended the relation-back provisions of Rule

15(c)(1)(C) to amendments changing identities of plaintiffs, the type of “changes”

permitted are limited to corrections of misnomers or misdescriptions.

Id. at 318 (internal citations omitted).

As in Asher, Plaintiffs do “not seek to correct a misnomer or misdescription of a proper party

plaintiff already in court, nor d[o] they attempt ‘to change the capacity in which [they] sue[d]; or to

substitute or add as plaintiff[s] the real party interest; or to add additional plaintiffs where the action,

as originally brought, was a class action.’” Id. (citation omitted). Instead, and also as in Asher, “they

attempted to circumvent the statute of limitations, adding new parties and new claims.” Id. at 319.

This they cannot do under controlling Sixth Circuit precedent.

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Nor does Sixth Circuit authority support their continuing violation theory. “This Circuit

employs the continuing violations doctrine most commonly in Title VII cases, and rarely extends it

to § 1983 actions.” Sharpe v. Cureton, 319 F.3d 259, 267 (6th Cir. 2003) (citing LRL Properties v.

Portage Metro Hous. Auth., 55 F.3d 1097, 1106 n. 3 (6th Cir.1995)). “For a continuing violation to

exist: (1) ‘the defendant’s wrongful conduct must continue after the precipitating event that began

the pattern,’ (2) ‘injury to the plaintiff must continue to accrue after that event,’ and (3) ‘further

injury to the plaintiffs must have been avoidable if the defendants had at any time ceased their

wrongful conduct.’” Norman v. Granson, No. 18-4232, 2020 WL 3240900, at *2 (6th Cir. Mar. 25,

2020) (quoting Tolbert v. Ohio Dep’t of Trans., 172 F.3d 934, 940 (6th Cir. 1999). Thus, “[a]

continuing violation occurs over several incidents that are not themselves actionable; conversely,

discrete events that are easily identifiable and separately actionable do not constitute a continuing

violation. Id. (citing Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114-15 (2002)). Further,

a continuing violation cannot be based upon “the continual ill effects from an original violation.”

Eidson v. Tenn. Dep’t of Children’s Servs., 510 F.3d 631, 635 (6th Cir. 2007).

Here, Plaintiffs’ complaints involve discrete acts. Take for instance, their most viable claim

– having to utilize a jug or a plastic bag to relieve themselves. Each time they had to do so was a

separate act. See, Wallace v. Coffee Cnty., No. 4:18-CV-25, 2020 WL 2946064, at *5 (E.D. Tenn.

June 3, 2020) (stating that “each denial of Plaintiff's requests for cleaning supplies, clean bed sheets,

or showers were discrete, allegedly unconstitutional, actions on the part of the corrections officers”).

Plaintiffs cites no Sixth Circuit authority applying the continuing violations to a Section 1983 claim

and the Court has found none based upon facts even remotely similar to those presented here.

Plaintiffs next attempt to avoid the statute of limitations bar based upon the discovery rule.

14

Again, Plaintiff points to Tennessee law in making this argument. However, even though state law

governs the limitations period in Section 1983 cases, when that claim accrues “is a question of

federal law, . . . conforming in general to common-law tort principles.” Wallace v. Kato, 549 U.S.

384, 388 (2007).

“The discovery rule recognizes that, without certain information, a plaintiff has no viable

claim.” Snyder-Hill v. Ohio State Univ., 48 F.4th 686, 699 (6th Cir. 2022). “‘That he has been

injured in fact may be unknown or unknowable until the injury manifests itself; and the facts about

causation may be in the control of the putative defendant, unavailable to the plaintiff or at least very

difficult to obtain.’” Id. (quoting United States v. Kubrick, 444 U.S. 111, 122 (1979)). Even though

the Sixth Circuit has occasionally applied the discovery rule to § 1983 claims in the past, it has

recently questioned whether “our cases imbibing this ‘bad wine’ warrant reconsideration in light of

the Supreme Court’s recent teachings.” Dibrell v. City of Knoxville, 984 F.3d 1156, 1162 (6th Cir.

2021). Regardless, Plaintiffs cannot avail themselves of the discovery rule.

It is true, as Plaintiffs argue, that a complaint by an inmate about not being allowed a shower

or not being provided a bed on one or a two occasions “is not enough to give rise to a showing of

a constitutional right of deliberate indifference.” (Doc. No. 146 at 11). However, “[t]he general

federal rule is that ‘the statute of limitations begins to run when the reasonable person knows, or in

the exercise of due diligence should have known, both his injury and the cause of that injury.’”

Bishop v. Child.’s Ctr. for Developmental Enrichment, 618 F.3d 533, 536 (6th Cir. 2010) (quoting

Campbell v. Grand Trunk W. R.R. Co., 238 F.3d 772, 775 (6th Cir. 2001)). “[T]he discovery rule

does not delay the accrual of a cause of action and the commencement of the statute of limitations

until the plaintiff knows the full extent of the damages,” or “until the plaintiff knows the specific

15

type of legal claim it has,” because the “rule is not intended to permit a plaintiff to delay filing suit

until the discovery of all the facts that affect the merits of his or her claim.” Smith v. Hilliard, 578

F. App’x 556, 563 (6th Cir. 2014) (internal citations omitted). Indeed, “[w]ere it otherwise, the

statute would begin to run only after a plaintiff became satisfied that he had been harmed enough,

placing the supposed statute of repose in the sole hands of the party seeking relief.” Wallace v. Kato,

549 U.S. 384, 391 (2007). That is exactly what Plaintiffs attempt to do by way of this argument.

Based on all of the foregoing, this Court agrees with Defendants that the statute of limitations

bars the Section 1983 claims brought by each Plaintiff in the Brown case, albeit with one exception.

Brown filed suit on February 26, 2021, within one year of the period alleged in the Amended

Complaint and within a year of his release from the Macon County Jail. True, he did not sue the

present Defendants, but he did sue the Sheriff’s Department.

Brown’s situation is substantially similar to that presented to the Sixth Circuit in

Black-Hosang v. Ohio Dep’t of Pub. Safety, 96 F. App’x 372 (6th Cir. 2004). There, plaintiff sued

the Ohio Department of Public Safety (of which the Ohio State Highway Patrol was a part) for false

arrest, but did not name or sue the arresting state trooper until she filed an amended complaint.

Because an amended complaint naming the trooper was not filed until after the statute of limitations

had run, the district court found that relation back under Rule 15(c) did not apply to the new

defendant. Rejecting that argument, the Sixth Circuit conceded that the language in Rule 15(c) about

a “mistake concerning the identity of the proper party” could be deemed “ambiguous” but “the

Advisory Committee Notes to Rule 15(c) make it clear that Black-Hosang’s naming of an immune

governmental entity as the defendant is exactly the sort of mistake contemplated by the drafters of

this provision in 1966.” Id. at 376. Likewise here, the Court finds that Brown’s naming of a non-

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suable governmental agency constitutes a mistake within the meaning of Rule 15(c)(3).

In addition to Mullins, Harrison, Tracy, Mann, Gardner, Rowe, and Feinstein from the Brown

case, the Court will also dismiss Griffin and Berg from the Taylor case based upon the statute of

limitations. This is because Griffin was released from the Macon County Jail on May 1, 2020, and

Berg was released on February 28, 2020. However, the Taylor case was not filed until October 6,

2021 and so their claims are beyond the one-year statute of limitations in Tennessee for personal

injuries.7

Finally, the Court will dismiss the claims against Summers on statute of limitations grounds

and grant her motion for summary judgment on that basis, just as it did in the Taylor case before the

cases were consolidated. (Case No. 3:21-cv-00040. Doc. No. 94). This is because Taylor left her

employment at the Macon County Jail on April 16, 2020, but suit naming her was not filed until May

7, 2021. In reaching this conclusion, the Court is not ignoring its previous ruling regarding Brown

and the remaining Defendants based upon Black-Hosang. However, as that case also teaches, while

Rule 15(c)(3) permits some mistakes as to the naming of a defendant, it also requires “that, within

120 days from the filing of the original complaint, the new party must have known, or should have

7 The Court rejects efforts to dismiss other Defendants from the Taylor case because they would

have been aware of the conditions about which they now complain as soon as they arrived at the jail but did

not file suit until more than a year later. This argument ignores that each constitutional violation is a separate

act starting the statute of limitations period anew. See Epcon Homestead, LLC v. Town of Chapel Hill, 62

F.4th 882, 890 (4th Cir. 2023) (citation omitted) (“[I]f the alleged constitutional violation occurs ‘in a series

of separate acts and if the same alleged violation was committed at the time of each act, then the limitations

period begins anew with each violation.”; Hutt v. Liberty Healthcare Corp., No. 15-CV-3094-JES, 2017 WL

11501507, at *5 (C.D. Ill. Dec. 13, 2017) (“[E]very week that Defendant allegedly caused Plaintiff to receive

inadequate treatment marked a fresh infliction of a constitutional violation that caused the statute of

limitations to start running anew.”).

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known, that he or she would have been sued but for the mistaken pleading.” 96 F. App’x at 377

(emphasis in original). That was hardly the case here. Unlike the Sheriff, the Jail Administrator, and

the Assistant Jailer Administrator, Summers left her job before the original complaint was filed and

thus, the Court cannot say she “should have known” of its existence.

B. Exhaustion of Administrative Remedies

Next, Defendants argue that a number of individuals, including Rowe, Loudy and Reynolds,

should be dismissed pursuant to the Prison Litigation Reform Act (“PLRA”) because they failed to

exhaust administrative remedies. That Act provides, in pertinent part: “No action shall be brought

with respect to prison conditions under section 1983 of this title, or any other Federal law, by a

prisoner confined in any jail, prison, or other correctional facility until such administrative remedies

as are available are exhausted.” 42 U.S.C.A. § 1997e.

Exhaustion of administrative remedies is mandatory, Porter v. Nussle, 534 U.S. 516, 524

(2002), and the failure to exhaust those remedies is an affirmative defense that must be established

by a defendant, Jones v. Bock, 549 U.S. 199, 216 (2007). “[I]t is the prison’s requirements, and not

the PLRA, that define the boundaries of proper exhaustion.” Id., 549 U.S. at 218. “[E]xhaustion is

required even if the prisoner subjectively believes the remedy is not available; even when the state

cannot grant the particular relief requested; and ‘even where [the prisoners] believe the procedure

to be ineffectual or futile[.]’” Napier v. Laurel Cty., 636 F.3d 218, 222 (6th Cir. 2011) (internal

citations omitted). Thus, “an inmate cannot simply fail to file a grievance or abandon the process

before completion and claim that he has exhausted his remedies or that it is futile for him to do so

because his grievance is now time-barred under the regulations.” Hartsfield v. Vidor, 199 F.3d 305,

309 (6th Cir. 1999).

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On the other hand, “exhaustion is not required ‘when prison administrators thwart inmates

from taking advantage of a grievance process through machination, misrepresentation, or

intimidation.’” Does 8-10 v. Snyder, 945 F.3d 951, 963 (6th Cir. 2019) (quoting Ross v. Blake, 578

U.S. 632, 644 n.3 (2016)). ). “In particular, this exception applies when prison officials prevent

the[] use of otherwise proper procedures,’ or design a process that can ‘trip[ ] up all but the most

skillful prisoners.’” Id. (quoting Woodford v. Ngo, 548 U.S. 81, 102 (2006)). “If a remedy is

administered or designed in this way, then inmates need not exhaust.” Id. This is hardly surprising

because the PLRA requires only the exhaustion of available administrative remedies.

Whether a remedy is actually available or not can be a question of fact precluding summary

judgment. See, Lamb v. Kendrick, 52 F.4th 286, 294 (6th Cir. 2022); Holbrook v. Boyd Cnty., 434

F. App’x 472, 474 (6th Cir. 2011). Such is the case here.

In the argument section of their brief, Defendants discuss the law surrounding exhaustion and

then conclusorily assert that several Plaintiffs failed to exhaust Macon County’s administrative

remedies without identifying those remedies or the procedure for invoking those remedies.

Elsewhere, the brief speaks about inmates being “advised of the procedures to file an inmate request

and inmate grievance” and then notes that inmates are to use a kiosk to read the inmate handbook

and grievance policy and, from the kiosk, request grievance forms. (Doc. No. 137 at 6). This

argument, however, ignores the assertion by many Plaintiffs that kiosks were not in the MPR or ISO

and therefore there was no access to them. It also ignores the argument that the placing of kiosks

in the jail is of relatively recent vintage. And it ignores other Plaintiffs’ entreaties to guards to file

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grievances on their behalf, but those request, were ignored.8 Of course, Defendants may be able to

“present evidence showing that the plaintiff’s ability to exhaust was not hindered,” Surles v.

Andison, 678 F.3d 452, 458 (6th Cir. 2012), but the time for doing so will be at trial.

C. Qualified Immunity

Next, the individual Defendants insist they are entitled to qualified immunity. The qualified

immunity doctrine shields government officials from civil liability unless they violate a person’s

clearly established rights. Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018). The doctrine is intended

to “‘balance[ ] two important interests—the need to hold public officials accountable when they

exercise power irresponsibly and the need to shield officials from harassment, distraction, and

liability when they perform their duties reasonably.’” Richko v. Wayne Cnty., 819 F.3d 907, 914 (6th

Cir. 2016) (quoting Pearson v. Callahan, 555 U.S. 223, 231 (2009)).

“[A] defendant is entitled to qualified immunity on summary judgment unless the facts, when

viewed in the light most favorable to the plaintiff, would permit a reasonable juror to find that: (1)

the defendant violated a constitutional right; and (2) the right was clearly established.” Bishop v.

Hackel, 636 F.3d 757, 765 (6th Cir. 2011) A legal principle is clearly established if there is

then-existing precedent “clear enough that every reasonable official would interpret it to establish

the particular rule the plaintiff seeks to apply.” District of Columbia v. Wesby, 138 S. Ct. 577,

589–90 (2018). When a defendant invokes qualified immunity and carries his or her initial summary

judgment burden, “the plaintiff bears the burden to show that qualified immunity is inappropriate.”

Quigley, 707 F.3d at 681. In the absence of a clear constitutional violation, the decision as to

8 The Court recognizes that asking guards to file a grievance likely does not comply with the

handbook. Then again, if inmates did not have ready access to a handbook, they cannot be charged with

knowing what it says.

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whether existing legal authority has placed the statutory or constitutional question beyond debate is

determined by looking first to Supreme Court precedent, then to Sixth Circuit precedent, and then

to decisions of other courts of appeal. Barber v. Miller, 809 F.3d 840, 845 (6th Cir. 2015); Flint v.

Kentucky Dep’t of Corr., 270 F.3d 340, 347 (6th Cir. 2001).

With respect to Counts II and III, Defendants argue that “Plaintiffs fail to specifically allege

that these Defendants [Gammons, Sutton and Wilson] were aware of a substantial risk of harm and

ignored the risk and they cannot establish that any of the individual defendants in this case had the

requisite state of mind to be deliberately indifferent to a serious omission.” (Doc. No. 28 at 28).

Defendants also argue that “[t]here is no evidence that these individuals participated in the denial

of restroom breaks or showers to Plaintiffs” and, “as such there is no clearly establish law creating

liability as to these Defendants.” (Id. at 30-31). The Court agrees, but only to a point.

Being deprived of a mattress for a short period, not allowing an inmate to shower for a few

days, and only providing bathroom breaks at regularly scheduled times, may not rise to the level of

a constitutional deprivation. See, Dellis v. Corr. Corp. of Am., 257 F.3d 508, 511 (6th Cir.2001)

(holding that temporarily being deprived of a working toilet “did not demonstrate that the conditions

fell beneath the minimal civilized measure of life’s necessities as measured by a contemporary

standard of decency”); Hartsfield v. Vidor, 199 F.3d 305, 309–10 (6th Cir.1999) (noting “that

deprivations of fresh water and access to the toilet for a [twenty]-hour period, while harsh, were not

cruel and unusual”); Bodman v. Dennis, No. 14-1316, 2015 WL 13927074, at *2 (6th Cir. Mar. 31,

2015) (holding that being “required to sleep on a pallet on the floor and not allowed a shower for

eight days” is not cruel and unusual punishment); Richmond v. Settles, 450 F. App’x 448, 455 (6th

Cir. 2011) (collecting authority for the proposition that being deprived of a shower and other

21

personal hygiene items for a “brief span of time . . ., i.e., only six days” and being deprived of a

mattress and bedding for up to 30 days was not a constitutional violation).

On the other hand, the Supreme Court has made “clear that officials can still be on notice that

their conduct violates established law even in novel factual circumstances.” Hope v. Pelzer, 536

U.S. 730, 741 (2002). “The relevant, dispositive inquiry in determining whether a right is clearly

established is whether it would be clear to a reasonable officer that his conduct was unlawful in the

situation he confronted.” Saucier v. Katz, 533 U.S. 194, 202 (2001).

Hopefully, requiring inmates to urinate in a jug and defecate in a bag for days on end is novel.

Indeed, the Court has found no cases addressing the situation. However, it cannot be seriously

disputed that requiring inmates to relieve themselves in that fashion is cruel and unusual punishment

because it is contrary to “the evolving standards of decency that mark the progress of a maturing

society.” Graham v. Florida, 560 U.S. 48, 58 (2010). It is for this reason, perhaps, that Defendants

do not address this particular issue in their brief.

As for Defendants’ assertion that they did not act with the requisite state of mind and were

not deliberately indifferent, that presents a factual issue on this record. Morgan by next friend

Morgan v. Wayne Cnty., 33 F.4th 320, 327 (6th Cir. 2022) (citation omitted) (“Whether a prison

official had the requisite knowledge of a substantial risk is a question of fact[.]”). “For example, the

factfinder ‘may conclude that a prison official knew of a substantial risk from the very fact that the

risk was obvious.’” Atkins v. Crowell, 945 F.3d 476, 480 (6th Cir. 2019) (citation omitted). Such

may be the case here.

In reaching the foregoing conclusion, the Court recognizes that “Section 1983 will not

support a claim based on a respondeat superior theory of liability.” Polk Cnty. v. Dodson, 454 U.S.

22

312, 325 (1981). Rather, “[t]o state a claim of supervisory liability under § 1983, plaintiffs must

plausibly allege that a defendant ‘authorized, approved, or knowingly acquiesced in the

unconstitutional conduct . . . of his subordinates through the execution of his job functions.’” Does

v. Whitmer, 69 F.4th 300, 306 (6th Cir. 2023) (quoting Crawford v. Tilley, 15 F.4th 752, 761 (6th

Cir. 2021)). While “[s]loppiness, recklessness, or negligence is insufficient to establish liability, .

. . deliberate indifference, knowing acquiescence, tacit or implicit authorization, or failure to take

precautions against likely violations may suffice.” Id. (citing, Garza v. Lansing Sch. Dist., 972 F.3d

853, 866 (6th Cir. 2020); Gardner v. Evans, 920 F.3d 1038, 1051 (6th Cir. 2019)).

Here, when the facts are construed in Plaintiffs’ favor as they must be for present purposes,

each of Defendants did not act with a reckless or negligent state of mind. Rather, each was well

aware of the conditions in the MPR and ISO, but chose to go along with the practice of requiring

inmates to urinate in jugs and defecate in plastic bags. Indeed, the Jail Administrator allegedly found

it funny, and the Sheriff told the complaining inmates to “shut up.” (SOF ¶¶ 31, 38). Factual issues

preclude granting qualified immunity at this time.

D. Macon County Liability

Under Section 1983, a governmental entity such as a city or county is a “person” and can only

be held liable for its own wrongdoing and not under a theory of respondeat superior.” Monell v.

Dep’t of Soc. Servs. of City of New York, 436 U.S. 658, 690 (1978). To hold a governmental entity

like Macon County liable, Plaintiffs must show that their constitutional rights were violated because

of a “policy or custom” of the county. Id. at 694.

“A municipality may be held liable under one of four recognized theories: ‘(1) the existence

of an illegal official policy or legislative enactment; (2) that an official with final decision making

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authority ratified illegal actions; (3) the existence of a policy of inadequate training or supervision;

or (4) the existence of a custom of tolerance or acquiescence of federal rights violations.’” Morgan

by next friend Morgan v. Wayne Cnty., 33 F.4th 320, 328 (6th Cir. 2022) (quoting Burgess v.

Fischer, 735 F.3d 462, 478 (6th Cir. 2013)). Here, Plaintiffs have presented a triable claim against

Macon County on at least a couple of those theories.

““IT]n Tennessee, the Sheriff has the ‘custody and charge’ of the County Jail and all prisoners

committed thereto[.]’” Shorts v. Bartholomew, 255 F. App’x 46, 57 (6th Cir. 2007) (quoting

Marchese v. Lucas, 758 F.2d 181, 188 (6th Cir.1985)); see also Miller v. Calhoun Cnty., 408 F.3d

803, 814 (6th Cir. 2005) (noting that there was no dispute that the Sheriff, under Tennessee law, final

policymaking authority over the county jail).’ It follows, therefore, that a policy attributable to the

county can be found where there are “numerous similar incidents” and the Sheriff fails to supervise

and correct the situation and punish those responsible. Id.

Ifa jury believes Plaintiffs, there is more than enough evidence to suggest a policy for which

Macon County is liable. According to Plaintiffs, up to a dozen or more men were locked in the MPR

or ISO for days on end and not allowed to use the bathroom. Not only was the Sheriff aware of this

practice, when Plaintiffs complained to the Sheriff and his top jail administrators their complaints

were ignored.

To be sure, Defendants paint a different picture and claim that the actual policy was to allow

bathroom breaks and regular showers. However, because a jury could find that this “policy” was

honored more in its breach than its observance, Macon County will not be dismissed as a Defendant

° By statute, a Tennessee county Sheriff is obligated to “[t]ake charge and custody of the jail of the

sheriff's county, and of the prisoners therein[.]” Tenn. Code Ann. § 8-8-201.

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in this action.

III. Motion to Amend Case Management Order and Reconsider Motion to Amend

On October 4, 2023, this Court entered an Order that provided:

Without any explanation or justification, Plaintiffs’ have filed a Motion for Leave to

Amend the First Amended Complaint (Doc. No. 159). The motion is DENIED. The

deadline to amend was February 11, 2022 (Doc. No. 65). Additionally, there [a]re

two fully briefed motions for summary judgment pending. (Doc. No. 117 and 165).

Plaintiffs’ motion to amend offers no basis for why their motion to amend would be

proper.

(Doc. No. 163 at 1). Undeterred by this Order and the existence of fully briefed Motions for

Summary Judgment, Plaintiffs, on October 20, 2023, filed a Motion to Amend Case Management

Order and Reconsider Motion to Amend. (Doc. No. 167). Plaintiffs’ present motion is more

substantial than before, covering as it does more than 10-pages. It is no more persuasive, however.

Plaintiffs begin their substantive discussion by stating that “all parties and this Honorable

Court have been playmaking like the December 12, 2023, trial date is not only reasonable but

inevitable. It is time for all involved to acknowledge that this is a legal fiction.” (Id. at 4). Plaintiffs

also argue that the trial date is not going to happen because, “[r]ight now, two months from the

supposed trial date, there is still an[]outstanding motion for summary judgment”– (actually two) –

and the possibility that Defendants will take an interlocutory appeal which would, “in and of itself,

. . . render the current December date irrelevant.” (Id.). Plaintiffs continue:

Finally, there is the issue of the Court having to marshal the Plaintiffs who are

currently incarcerated across multiple prisons in multiple states. This Court will ...

need to designate what facility the incarcerated Plaintiffs will be housed in. . . . [T]he

trial as currently scheduled for the middle of the holiday season [will] cause stress

from a staffing perspective, especially considering the amount of coordination

necessary. While obviously some trials need to be scheduled for these time, there are

special considerations in the context of the logistical issues a case such as this brings

up. A delay will significantly reduce the burden and support the concept of judicial

25

economy.

(Id. at 5). Because of all of this, Plaintiffs propose extending the dispositive motion “deadline to

December 15, 2023, the amendment deadline to November 15, 2023, and the trial date to a time in

late February or March” 2024. (Id. at 6).

Frankly, the Court is amazed at the presumptuousness of Plaintiffs’ counsel. While the Court

may enjoy reading fiction now and again, it does not dabble in that genre when setting trial dates.

The notion that the Court cannot empanel a 6-8 member civil jury in mid-December for a trial that

Plaintiffs submit will likely last “multi-weeks” does not (1) account for the reality that the number

of Plaintiffs has now been more than halved; or (2) take into consideration this Court was able to seat

a 20 person criminal jury (12 regular and 8 alternate jurors) last Fall for a case involving seven

defendants that was expected to last four months and conclude sometime shortly before Christmas.

Plaintiffs’ apparent belief that they will be in attendance throughout the trial ignores the well-

settled precedent that “[n]either the Fifth Amendment’s due process clause nor the Seventh

Amendment’s guarantee of a jury trial grants to a civil litigant the absolute right to be present

personally during the trial of his case.” Helminski v. Ayerst Lab'ys, a Div. of Am. Home Prod.

Corp., 766 F.2d 208, 213 (6th Cir. 1985). Instead, and “[c]onsistent with due process[,] the right to

be present may be sufficiently protected in the party’s absence so long as the litigant is represented

by counsel.” Id. at 214.

This is not to say that a “court may . . . exclude arbitrarily a party who desires to be present

merely because he is represented by counsel[.]” Id. It is to say, however, that “[i]n order to

determine whether the prisoner should appear at trial, the district court must consider factors such

as ‘whether the prisoner’s presence will substantially further the resolution of the case, the security

26

risks presented by the prisoner’s presence, the expense of the prisoner’s transportation and

safekeeping, and whether the suit can be stayed until the prisoner is released without prejudice to the

cause asserted.’” Latiolais v. Whitley, 93 F.3d 205, 208 (5th Cir. 1996) (citation omitted); see also

Jones v. Hamelman, 869 F.2d 1023, 1030 (7th Cir. 1989) (“[I]t is within the discretion of the court

to determine whether a prison inmate shall attend court proceedings held in connection with an

action initiated by the inmate. The discretion is not unfettered or unbridled, however.”) In short,

“[a]lthough there is a constitutional right of ‘access to the courts,’ that right is satisfied by an

‘opportunity to consult with counsel and to present his case to the court,’ which typically can be

accomplished even when the litigant is not physically present at the courthouse,” and, thus, the “right

to access does not necessarily mean the right to be physically present at the trial of a civil suit.”

Davidson v. Desai, 964 F.3d 122, 129 (2d Cir. 2020).

Additionally, and unlike counsel, the Court does not presume that Defendants will take an

interlocutory appeal. Any such appeal would be based upon the denial of qualified immunity.

However, as the Sixth Circuit has made painstakingly clear, such interlocutory appeals are “limited

to legal questions because ‘circuit courts can review a denial of qualified immunity only ‘to the

extent that it turns on an issue of law.’” Raimey v. City of Niles, 77 F.4th 441, 447 (6th Cir. 2023)

(quoting Brown v. Chapman, 814 F.3d 436, 444 (6th Cir. 2016)). The Court does not believe that

allegedly having to communally live in a cell day-in-day-out without bathroom facilities qualifies.

Elsewhere in their brief, Plaintiffs’ submit that, “[a]s to prejudice, in a practical sense, there

simply is none.” (Doc. No. 167 at 11). They argue that “all changes made to the [proposed Second

Amended Complaint] are based off deposition testimony they [defendants] conducted” and,

therefore, “[t]hey had just as much, if not more, time than Plaintiffs to review the transcripts for

27

potential changes to the Complaint.” (Id.) (italics in original). “Finally, as to good faith,” Plaintiffs

assert that they “worked diligently and in good faith,” and bemoan that (1) discovery was not

completed “until nearly a year after the amendment deadline passed”; and (2) they “had to digest

the significant volume of discovery” while dealing with other matters (such as formal mediation)

before they were in a position to amend the complaint. (Id. at 12).

Rule 15 of the Federal Rules of Civil Procedure provides that “[t]he court should freely give

leave” to amend a pleading “when justice so requires.” Fed. R. Civ. P. 15(a)(2). However, in this

case, that rule must be read in conjunction with Rule 16 which provides that, when a scheduling

order has been entered that includes a deadline for amendment of pleadings, that order can be

modified “only for good cause.” Fed. R. Civ. P. 16(b)(4). “Consequently, notwithstanding Rule

15’s directive freely to give leave to amend, a party seeking leave to amend after the scheduling

order’s deadline must meet Rule 16’s good-cause standard in order for the district court to amend

the scheduling order.” Carrizo LLC v. City of Girard, 661 F. App'x 364, 367 (6th Cir. 2016) (citing

Leary v. Daeschner, 349 F.3d 888, 904 (6th Cir. 2003)).

“Parties can demonstrate ‘good cause’ for their failure to comply with the original schedule,

by showing that despite their diligence they could not meet the original deadline.” Id. Plaintiffs

have not done so. “Another relevant consideration is possible prejudice to the party opposing the

modification.” Inge v. Rock Fin. Corp., 281 F.3d 613, 625 (6th Cir. 2002). There is plenty of

possible prejudice to Defendants.

The proposed Second Amended Complaint contains 76-numbered paragraphs, of which 34

are new or revised. Most strikingly, the amendment eliminates the references to “in and around

January 2020 until February 2020” for each of the Brown Plaintiffs and substitutes incarceration

28

dates for them.

Certainly Plaintiffs knew, or should have known, the general time frame during which they

were housed in the Macon County Jail within the past couple of years. For whatever reason,

however, Plaintiffs, “who are the masters of their complaints,” Standard Fire Ins. Co. v. Knowles,

568 U.S. 588, 595 (2013), chose to limit their claim to the January-February 2020 time frame in their

Complaint and Defendants defended on that basis. It would defy reality to say that Defendants

would not be prejudiced by this change, particularly because the change only came about after

Defendants fully-briefed their two motions for summary judgment. Litigants can sometimes change

horses midstream, but they cannot — without good cause after a scheduling order — change to a horse

that is more than a furlong ahead and about to cross the finish line.

IV. Conclusion

On the basis of the foregoing, Kim Summers’ Motion for Summary Judgment (Doc. No. 117)

will be granted. The Motion for Summary Judgment filed by the remaining Defendants (Doc. No.

136) will be granted solely with respect to the claims brought by Mullins, Harrison, Tracy, Mann,

Gardner, Roe, Feinstein, Griffin, and Berg. Plaintiffs’ Motion for Oral Argument (Doc. No. 155)

and Motion to Amend Case Management Order and Reconsider Motion to Amend (Doc. No. 167)

will be denied.

An appropriate Order will be entered.

Wor. 2, she

are eA Gionslinity

CHIEF UNITED STATES DISTRICT JUDGE

29