Markland v. Carter Co. Sheriff Dept. Swat Team Members
Markland v. Carter Co. Sheriff Dept. Swat Team Members
2023 WL 11897685 (E.D. Tenn. 2023)
July 19, 2023

Wyrick, Cynthia R.,  United States Magistrate Judge

Video
Failure to Produce
Proportionality
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Summary
The court granted the plaintiff's request for body camera footage from the officers involved in the case, but only for a specific time period. The court denied the plaintiff's motion for a speedy trial and for the appointment of counsel. The motion to use evidence of past experiences with officers was also denied without prejudice. The court also noted that it does not have the authority to order the plaintiff's transfer to another facility.
Lanny Allen MARKLAND, Plaintiff,
v.
CARTER CO. SHERIFF DEPT. SWAT TEAM MEMBERS, et al., Defendants
2:22-CV-147
United States District Court, E.D. Tennessee, Greeneville Division
Filed July 19, 2023

Counsel

Lanny Allen Markland, Elizabethton, TN, Pro Se.
Jeffrey M. Ward, Milligan & Coleman, Greeneville, TN, for Defendant Mitzia Waddill.
Jonathan Swann Taylor, Kramer Rayson LLP, Knoxville, TN, for Defendants Justin Convention, Jonathan Blevins, Jeremiah Bartlett, Gabriel Felty, Tyler Holselaw.
Benjamin K. Lauderback, Watson Roach Batson & Lauderback PLC, Knoxville, TN, Hunter Storm Shepard, Herrin, McPeak & Associates, Johnson City, TN, K. Erickson Herrin, Herrin, Booze & McPeak, Johnson City, TN, for Defendants Lincoin Orellana, David Johnson, James Deese, Dustin Smith.
Benjamin K. Lauderback, Watson Roach Batson & Lauderback PLC, Knoxville, TN, Hunter Storm Shepard, Herrin, McPeak & Associates, Johnson City, TN, for Defendants Cody Mullins, Franklin Peters.
Wyrick, Cynthia R., United States Magistrate Judge

ORDER

*1 Plaintiff has filed a letter with the Court containing six requests for relief related to his lawsuit against Defendants. [Doc. 37]. Below, the Court will address each of the six requests as a motion.
I. Motion for Body Camera Footage
Plaintiff has filed a complaint against various police officers alleging they subjected him to excessive force during an arrest on the morning of August 18, 2022. [Doc. 8]. In his letter, Plaintiff first requests that Defendants be ordered to provide copies of body camera footage for all cameras worn by officers involved in this case from 12:00 p.m. on August 17, 2022, to 12:00 p.m. on August 18, 2022.[1] Defendants have not filed an objection to Plaintiff's motion. Under the Federal Rules of Civil Procedure, any material that is relevant, nonprivileged, and proportional to the needs of the case may be discovered. Fed. R. Civ. P. 26(b)(1). In determining whether material is discoverable, the Court considers “the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” Id. “Information within this scope of discovery need not be admissible in evidence to be discoverable.” Id.
Here, Plaintiff's request for body camera footage is narrow and relevant to his claim because it would potentially show the alleged events taking place, including a short period of time before and after the incident. See [Doc. 8, p. 3] (alleging the events giving rise to Plaintiff's claim occurred between 12:00 a.m. and 8:00 a.m. on August 18, 2022). Additionally, the factors provided under Rule 26 weigh in favor of granting Plaintiff's request. At issue in this case is a claim of excessive force wherein Plaintiff alleges serious injuries to his face. Further, considering the parties' access to information and resources, Defendants should have access to the requested footage if it is available and they have greater resources to access the footage than Plaintiff, who is incarcerated and has been found indigent. Finally, if the requested footage does in fact show the events in question, that footage would be helpful in resolving the issues in this case. Accordingly, the Court finds Plaintiff's motion for body camera footage well-taken, and it is GRANTED, except that the footage shall only be provided for the period from 11:00 p.m. on August 17, 2022 through 10:00 a.m. on August 18, 2022, unless there is interaction between Plaintiff and Defendants during the more broad time period requested by Plaintiff, in which case footage from that interaction shall be provided as well.[2] If body camera footage for the officers involved with Plaintiff on the date in question is available, it shall be made available to Plaintiff under the parameters established.
II. Motion for Fast and Speedy Trial
*2 Plaintiff next requests a “fast and speeded trial”. While he includes no details in support of this request, he appears to be invoking either the Sixth Amendment right to a speedy trial or the Speedy Trial Act. However, neither of those laws apply in civil cases and there is no right to a speedy trial in civil cases. See U.S. Const. Amend. VI (stating that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial ...”); 18 U.S.C. §§ 3161(a), 3172(b) (wherein it states that the Speedy Trial Act applies to “any case involving a defendant charged with an offense,” with “offense” meaning a federal criminal offense). If Plaintiff is not attempting to invoke either the Sixth Amendment or the Speedy Trial Act, the Court would note that the District Court has entered a Scheduling Order [Doc. 36] in this case setting it for a jury trial to be held on December 17, 2024, to which Plaintiff has not specifically objected. Even if Plaintiff had objected, given the nature of the case at issue and this Court's knowledge of the District Court's trial calendar, it is highly unlikely that any request for an earlier trial date could be granted. Accordingly, the Court finds that Plaintiff has not demonstrated that the relief requested in this motion is justified, and the motion is DENIED.
III. Motion to use Evidence of Past Experiences with Carter County Officers
Plaintiff next requests that the Court allow him to use evidence of “past experiences with Carter Co. Officers” to help prove his claims against them in this case and to demonstrate that they have repeatedly used excessive force in the past. Plaintiff alleges that “this”[3] has happened to him previously, but he did not know what he knows now about filing a claim against the officers. In support, Plaintiff asserts that he has “medical records to show [his] face,” and the incident was recorded on camera.
Federal Rule of Evidence 104(a) directs courts to decide preliminary questions as to the admissibility of evidence. Typically, pretrial evidentiary questions are determined based on motions to exclude evidence, whereas Plaintiff appears to be asking the Court in this case to admit evidence. See Indiana Ins. Co. v. Gen. Elec. Co., 326 F. Supp. 2d 844, 846 (N.D. Ohio 2004) (noting that “[m]otions in limine are generally used to ensure evenhanded and expeditious management of trials by eliminating evidence that is clearly inadmissible for any purpose”) (internal citations omitted). Such determinations often require fact-specific analysis so that the Court can determine whether evidence is admissible based on the relevant context. See Sperberg v. Goodyear Tire & Rubber Co., 519 F.2d 708, 712 (6th Cir. 1975) (holding that “Orders in limine which exclude broad categories of evidence should rarely be employed. A better practice is to deal with questions of admissibility of evidence as they arise.”). This is especially true when determining whether evidence of prior bad acts is admissible. United States v. Clay, 667 F.3d 689, 693 (6th Cir. 2012) (outlining the three-part analysis district courts must use to determine admissibility of evidence under Rule 404(b)).
Based on the contents of Plaintiff's motion, the Court cannot determine whether evidence of Plaintiff's past experiences with Carter County officers would be admissible at trial because Plaintiff has not provided sufficient factual development to support his request. Although Plaintiff appears to assert that Carter County officers previously subjected him to excessive force, and those encounters may have had similar facts to the present case, he does not describe the past events with particularity. He does not describe the manner in which the officers allegedly subjected him to excessive force, where the events took place, or which officers were involved. Without more, the Court cannot determine whether these events would be admissible at trial. Accordingly, Plaintiff's motion to use evidence of past experiences with Carter County officers is DENIED without prejudice.
IV. Motion for the Appointment of Counsel
Plaintiff next asserts that he needs counsel appointed if possible. Appointment of counsel in a civil proceeding is not a constitutional right, but a privilege justified only in exceptional circumstances. Lavado v. Keohane, 992 F. 2d 601, 605–06 (6th Cir. 1993). In exercising its discretion to determine whether to appoint counsel for an indigent plaintiff, the court should consider the nature of the case; whether the issues are legally or factually complex; Plaintiff's ability to present his/her claims; whether Plaintiff's claims are frivolous or have an extremely slim chance of success; and whether Plaintiff has shown that he/she has no financial means to afford an attorney. Id.see also Brubaker v. Barrett, 801 F. Supp. 2d 743, 763 (E.D. Tenn. 2011).
*3 Here, Plaintiff does not provide any details in support of his request for appointed counsel. The Court notes that Plaintiff filed a Motion to Proceed in Forma Pauperis [Doc. 4], which the Court granted [Doc. 7], so the Court finds that Plaintiff does not have the financial means to hire counsel. However, Plaintiff has provided no information to support a finding that this matter involves exceptionally complex legal or factual issues. The Court notes that Plaintiff's claims stem from an allegation that he was subjected to excessive force by police officers during his arrest and did not receive proper medical attention while in custody. [Doc. 8]. These issues appear to be straightforward from both a legal and factual standpoint.
While the Court acknowledges the difficulty pro se litigants face generally, Plaintiff has not explained why he is particularly unable to present his claims in this case without the assistance of counsel, and to-date, he appears to have been able to adequately place them before the Court. Given the above, this Court cannot find that Plaintiff has presented the exceptional circumstances required for appointment of counsel in a civil case. Accordingly, Plaintiff's motion to appoint counsel is DENIED.
V. Motion to Move Plaintiff to Another Facility
Plaintiff next requests that he be moved to another jail based on treatment he alleges he is receiving at the Carter County Detention Center, a local jail in Elizabethton, Tennessee. Plaintiff asserts that officers have threatened him and made comments about what is in his food, leading Plaintiff to believe that officers have spit in his food. He contends that officers at the jail are “good buddies of the officers in this claim,” and because of their statements he explains that he is in fear for his wellbeing. As an initial matter, the Court cannot find that it has the authority to order Plaintiff to be moved from one state detention center to another facility as he has requested.
Plaintiff is an inmate being held by the State of Tennessee. Under Tennessee law, a pretrial detainee may be moved to the nearest sufficient facility if a jail is “insufficient for the safekeeping” of the prisoner. Tenn. Code Ann. § 41-4-121(a). To transfer a pretrial detainee to a different facility, the transfer must be conveyed by the sheriff, ordered by the committing court, or ordered by another state court upon application by the sheriff. Id. Additionally, if a county jail housing a post-conviction detainee is insufficient, the prisoner may be moved to a state penitentiary or the nearest branch prison upon order of “the court”. Id. § 40-23-107(a); see also Dover v. Rose, 709 F.2d 436, 437 n.1, 439 n.3 (6th Cir. 1983) (discussing the authority of state trial judges to order prisoner transfers).[4] These provisions apply to sheriffs and state courts, not federal courts. As such, this Court finds that it does not have the authority to order Plaintiff transferred out of the Carter County Detention Center.
Even if the Court did have the legal authority to order Plaintiff transferred, Plaintiff has not provided sufficient factual detail to show that Carter County Detention Center is an inadequate facility. Although Tennessee state courts have found inmate transfers to be appropriate due to safety concerns, there must be evidence to support a finding that there are in fact significant safety concerns at issue. Noel v. State, No. W201000088CCAR3PC, 2011 WL 744759, *8 (Tenn. Crim. App. Mar. 3, 2011) (an inmate transfer was appropriate when “the [inmate's] conduct had ‘created disruption and danger in the Lauderdale County Jail,” such that the jail was unable to control the [inmate]”). State v. Chapman, 977 S.W.2d 122, 127 (Tenn. Crim. App. 1997) (“the inability of the county to supply immediate medical needs might” constitute insufficient conditions). Here, Plaintiff explains that he is in fear for his wellbeing because officers have “threatened” him and made “comments” about his food. At the same time, he does not describe the nature of these threats beyond stating that he fears officers may have spit in his food based upon their statements to him.
*4 The Court first notes that it takes threats of violence against an inmate and allegations of unsanitary conditions seriously and understands why Plaintiff could reasonably have more cause for concern about his safety than a typical inmate given that he is suing certain officers for allegedly using excessive force against him. At the same time, Plaintiff has not provided any facts which would lead the Court to conclude that he is in danger of harm at this juncture. For the Court to so find, Plaintiff would need to detail the specific statements he claims were made, advise the Court as to who made those statements and what position that person holds, set forth when such statements were made, and describe any harm that he suffered. Accordingly, Plaintiff's motion for a facility transfer is DENIED.
VI. Motion to Move Sentencing from State to Federal Court
Finally, Plaintiff moves for his sentencing in a state court criminal case to be transferred to federal court. In support, he asserts that Defendant David Johnson's wife is the Assistant District Attorney prosecuting his case which is a conflict of interest and prevents him from receiving fair treatment. It appears that Plaintiff is seeking to remove his criminal case from state to federal court, which is permitted in limited circumstances under 28 U.S.C. § 1455. To remove a criminal case from state to federal court, a notice of removal must be filed within thirty days of arraignment in state court or before trial, whichever is earlier, or at a later time for good cause shown. Id. § 1455(b)(1). The notice must include “a short and plain statement of the grounds for removal, together with a copy of all process, pleadings, and orders served upon such defendant.” Id. § 1455(a). Plaintiff has not filed a notice of removal, nor has he included any documentation supporting his request to move his sentencing. Because Plaintiff is proceeding pro se, the Court will construe his request liberally. Erickson v. Pardus, 551 U.S. 89, 94, 127 S. Ct. 2197, 2200, 167 L. Ed. 2d 1081 (2007).
With this said, federal law allows removal of criminal cases only if they are pending against federal officers, members of the armed forces, or defendants who were denied federal rights involving racial equality in state courts. Michigan v. Mixon, No. CV 21-10825, 2021 WL 1439706, at *1 (E.D. Mich. Apr. 16, 2021) (citing 28 U.S.C. §§ 1442, 1442a, 1443; Georgia v. Rachel, 384 U.S. 780, 786-94 (1966)). In this case, Plaintiff has not claimed to be a federal officer nor a member of the armed forces. Additionally, he has not described any incidents in his state court case where he was denied his federal rights due to racial equality. Instead, he claims that the district attorney prosecuting his case has a conflict of interest which prevents him from receiving fair treatment because she is married to a defendant in this case. For these reasons, the Court finds that Plaintiff has failed to demonstrate that there are grounds for his criminal case to be removed from state court to federal court. Accordingly, Plaintiff's motion to transfer sentencing from state to federal court is DENIED.
VII. CONCLUSION
For the reasons stated above, Plaintiff's multi-part Motion [Doc. 37] is GRANTED in part and DENIED in part. The Court finds Plaintiff's motion for body camera footage well-taken, and it is GRANTED with the timeframe narrowed as specifically addressed above. Defendants are DIRECTED to supply Plaintiff with a copy of any available footage from body cameras worn by Captain Lincoln Ornella, Sergeant David Johnson, and officers Justin Convention, Sarah Ellison, Jonathan Blevins, Jeremiah Bartlett, Gabriel Felty, Tyler Holselaw, James Deese, and Dustin Smith for the specified time period to the extent that it is available.
Further, the Court finds that there is no legal basis to support Plaintiff's request for a speedy trial and to be transferred to a different jail. As such, they are DENIED. Finally, the Court finds that Plaintiff has failed to provide a sufficient factual basis for his motions to admit evidence of past experiences with Carter County officers, to appoint counsel, and to remove his case from state to federal court. These motions are DENIED but as to the motion to admit evidence of past experiences with Carter County officers, it is DENIED without prejudice.
*5 Additionally, Plaintiff is reminded of the District Court's Order [Doc. 36] entered on June 13, 2023, which required Plaintiff to provide to defense counsel “a copy of every pleading, motion, memorandum or other paper submitted for consideration by the Court” and to include a certificate of service along with every document filed with the Clerk of Court. The Order further stated that all filings “must include a certificate of service, or they will be disregarded by the Court.” Because Plaintiff receives court orders through the mail, and his motion was entered three days after the District Court's June 13 order, the Court finds that there is a possibility Plaintiff did not receive the order prior to filing his motion and for that reason, it is appropriate to address the merits of his motion. However, Plaintiff is NOTIFIED that any future filings which do not include a certificate of service indicating that the document has been sent to counsel for all Defendants will be disregarded by the Court. This includes a letter such as the one at issue here which the Court has treated as multiple motions. Further, as explained above, Plaintiff is NOTIFIED that the Court will entertain no further discovery motions which do not indicate that he attempted to work with counsel for all defendants to resolve the issue before the motion was filed.
SO ORDERED.

Footnotes

The Court notes that in filing his motion requesting discovery of the body camera footage, Plaintiff failed to follow the rules that apply to discovery. Parties must attempt to confer with opposing counsel prior to moving for an order compelling discovery, which means that Plaintiff should first have asked for the body camera footage from Defendants directly before filing his motion. Fed. R. Civ. P. 37(a)(1). Additionally, if Plaintiff did make the request and it was denied, he should have included that in his motion so the Court would know that he followed the rules. However, the Court finds it appropriate to waive that requirement as to this one instance, given the narrow scope and clear relevance of Plaintiff's request, as explained more fully below. Additionally, Defendants have not filed any objections to Plaintiff's motion; thus, any objections to Plaintiff's discovery request are waived. See Drutis v. Rand McNally & Co., 236 F.R.D. 325, 337 (E.D. Ky. 2006) (citing In re United States, 864 F.2d 1153, 1156 (5th Cir. 1989) (observing that “as a general rule, when a party fails to object timely to interrogatories, production requests, or other discovery efforts, objections thereto are waived”)). Plaintiff is notified that the Court will entertain no further discovery motions which do not indicate that Plaintiff has communicated with counsel for Defendants and attempted to obtain the requested discovery before the motion was filed.
The Court recognizes that where qualified immunity is at issue, discovery is generally paused while a summary judgment motion is pending. See Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). More specifically, if qualified immunity or an issue that “would be dispositive of the qualified immunity issue” is in question, “excessive discovery against the government” should be precluded. Criss v. City of Kent, 867 F.2d 259, 261 (6th Cir. 1988) (citing Anderson v. Creighton, 483 U.S. 635, 107 S.Ct. 3034, 3042 n. 6, 97 L.Ed.2d 523 (1987)). Defendants have raised qualified immunity as a defense in the answers they have filed but have not yet filed motions to dismiss or for summary judgment. As such, the Court does not find that Defendants have yet triggered a pause in discovery. Because Plaintiff's request is so limited, the Court finds that even if the rule generally precluding or significantly limiting discovery was at play, Plaintiff's request should be granted.
The Court assumes Plaintiff is referring to a prior instance where he claims Defendants used excessive force.
It is unclear whether Plaintiff is a pretrial or post-conviction detainee at this time. Though he requests for his sentencing to be transferred to a different court, indicating that he has already been convicted, he does not explain the status of his criminal case and he appears to be housed in a county jail rather than a state penitentiary.