Dunfee v. Finchum

132 F.Supp.3d 968

Zachary Allen DUNFEE, Plaintiff,

v.Officer David FINCHUM, individually and in his official capacity; Officer Rebecca Cowan, individually and in her official capacity; John and Jane Doe Officers 1–4, individually and in their official capacities; and City of Sevierville, Tennessee, Defendants.

No. 3:13–CV–378–TAV–HBG.

United States District Court, E.D. Tennessee.

Filed Sept. 21, 2015.

Mabern E. Wall, Wesley D. Stone, Hodges, Doughty & Carson PLLC, Knoxville, TN, for Plaintiff.

Dan R. Pilkington, Reid A. Spaulding, Brian Robert Bibb, Watson, Roach, Batson, Rowell & Lauderback PLC, Knoxville, TN, for Defendants.

MEMORANDUM OPINION

THOMAS A. VARLAN, Chief Judge.

This civil action is before the Court on defendants David Finchum, Rebecca Cowan, and the City of Sevierville's Motion for Summary Judgment [Doc. 41], and on plaintiff Zachary Allen Dunfee's Motion to Alter or Amend Scheduling Order and for Leave to Amend Complaint [Doc. 56]. The parties have responded and replied to each of these motions [Docs. 52, 55, 58, 59, 60, 64]. Having reviewed the parties' arguments, the record in this case, and relevant law, the Court will deny plaintiff's Motion to Alter or Amend Scheduling Order and for Leave to Amend Complaint, and will grant the Motion for Summary Judgment of defendants David Finchum, Rebecca Cowan, and the City of Sevierville.

I. BACKGROUND

On June 29, 2012, plaintiff, Zachary Allen Dunfee, was a passenger in a vehicle driven by Cindy Goforth [Doc. 54–1 pp. 2–3; Doc. 54–2 pp. 2–3]. Also riding in the vehicle were Jennifer Brower and her two children [Doc. 54–1 pp. 2–3; Doc. 54–2 pp. 2–3]. While Ms. Goforth was driving, Ms. Brower observed Mr. Dunfee in the back seat turning purple, foaming at the mouth, and seizing [Doc. 54–1 pp. 3–4; Doc. 54–2 pp. 5]. Ms. Goforth pulled the car over into a Food City parking lot where her husband, Gary Goforth, was working at the time [Doc. 54–1 pp. 4; Doc. 54–2 pp. 5]. Both Ms. Goforth and Ms. Brower then called 9–1–1 reporting that Mr. Dunfee was experiencing medical seizures [Doc. 54–1 pp. 4–6; Doc. 54–2 pp. 5–6]. Mr. Goforth left the Food City and also came to the scene in the parking lot [Doc. 54–1].

Officer Finchum was the first responder on scene [Doc. 41–4 p. 2]. He instructed that all the passengers, aside from Mr. Dunfee, should leave the vehicle [Id. at 8–11]. Although Mr. Dunfee had stopped seizing when Officer Finchum arrived, he was acting "delirious" [Doc. 54–1 pp. 7–8]. When Officer Finchum approached the backseat of the car, Mr. Dunfee was awake and talking [Doc. 54–8 pp. 4]. However, Mr. Dunfee quickly became combative and began yelling [Doc. 41–4 pp. 3–4]. Officer Finchum believed Mr. Dunfee was suffering from excited delirium [Doc. 55–2 pp. 5]. Officer Finchum attempted to keep Mr. Dunfee in the vehicle by putting his hand on Mr. Dunfee's shoulder [Doc. 54–9 pp. 6]. Mr. Dunfee then twisted Officer Finchum's arm, as well as head butted and kicked Officer Finchum several times [Id.; Doc. 55–1; Doc. 55–3 pp. 3]. Officer Finchum got on top of Mr. Dunfee in a further attempt to keep him in the car [Doc. 54–9 pp. 7]. Mr. Dunfee responded by kicking Officer Finchum in the crotch [Doc. 54–9 pp. 8]. Officer Finchum then used a taser on Mr. Dunfee [Id. at 11; Doc. 54–8 pp. 10–11]. According to a device report detailing taser use, Officer Finchum employed his taser one time on June 29, 2012, for a total of two seconds [Doc. 41–1 pp. 5–9]. Officer Finchum contends that his taser attempt was ineffective; however, it is unclear based on the record whether the taser attempt was effective or not [Doc. 54–9 pp. 11].

As this struggle between Officer Finchum and Mr. Dunfee was ongoing, several other police officers arrived at the scene including Officers Roberts and Nichols. When Officer Roberts approached Mr. Dunfee in the car, Mr. Dunfee bit Officer Roberts's hand [Doc. 41–3 pp. 3]. Officers Nichol and Roberts then pulled Mr. Dunfee from the vehicle and put him on the pavement [Doc. 41–1; Doc. 54–4 pp. 14–15; Doc. 54–8 pp. 11]. While outside the vehicle, Officer Roberts deployed his taser in stun mode on two occasions targeting Mr. Dunfee [Doc. 54–2 pp. 11; Doc. 54–3 pp. 7; Doc. 54–5 pp. 8–9; Doc. 54–8 pp. 13–15]. Officer Roberts also contends that neither of these taser attempts were successful [Doc. 54–8 p. 15]. He states that the first time he attempted to use it, he "failed to disengage the safety," and the second time, he is "unsure if contact was made" [Id. ].

Meanwhile, Officer Finchum was laying on top of Mr. Dunfee while several other officers assisted in holding down Mr. Dunfee's arms and legs [Doc. 41–1; Doc. 55–2 pp. 16]. Throughout this time, Mr. Dunfee continued to scream, flail his arms, and kick his legs [Doc. 41–1; Doc. 54–4 pp. 16; Doc. 54–5 pp. 12]. Officer Cowan arrived on scene and assisted the other officers in holding down Mr. Dunfee's legs and hips in order to prevent him from kicking [Doc. 41–1]. Mr. Dunfee was then secured onto a medical cot, and EMS took him to the hospital [Id. ]. Mr. Dunfee was not charged with a criminal offense for the events that occurred on June 29, 2012 [Doc. 54–8 pp. 19]. He suffered numerous injuries as a result of this incident, including an injury that is consistent with being tased [Doc. 54–4 pp. 21–22; Doc. 54–10 pp. 51].

Mr. Dunfee filed this action, asserting claims for excessive use of force, unreasonable seizure, and failure to implement appropriate policies, customs, and practices, as well as state-law claims [Doc. 15]. Defendants the City of Sevierville, Tennessee, as well as David Finchum and Rebecca Cowan, in their individual and official capacities, move the Court for summary judgment [Doc. 41]. Plaintiff moves the Court to alter or amend scheduling order and for leave to amend complaint [Doc. 56].

II. MOTION TO AMEND¹

"[A] party may amend its pleading only with the opposing party's written consent or the court's leave." Fed.R.Civ.P. 15(a)(2). "The court should freely give leave," however, "when justice so requires." Id. Leave is appropriate "[i]n the absence of ... undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, [or] futility of the amendment." Leary v. Daeschner, 349 F.3d 888, 905 (6th Cir.2003) (quoting Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962) ); see also Courie v. Alcoa Wheel & Forged Prods., 577 F.3d 625, 633 (6th Cir.2009). "Amendment of a complaint is futile when the proposed amendment would not permit the complaint to survive a motion to dismiss." Miller v. Calhoun Cnty., 408 F.3d 803, 807 (6th Cir.2005) (citing Neighborhood Dev. Corp. v. Advisory Council on Historic Pres., 632 F.2d 21, 23 (6th Cir.1980) ).

A. Proposed Claims Against John and Jane Doe Officers

In the first amended complaint, plaintiff includes John and Jane Doe officers 1–4 as defendants and states that plaintiff does not know the true identity of these officers [Doc. 15 ¶ 5]. Plaintiff alleges that each of the John and Jane Doe defendants are liable for injuries [Id. ]. Plaintiff now seeks to further amend the complaint to identify John and Jane Doe officers as Matt Nicol, Jamie Roberts, and Steve Ford [Doc. 56–1]. The proposed amended complaint asserts the following claims against Officers Roberts, Nicol, and Ford: use of excessive force and unreasonable seizure, in their official and individual capacities, under 42 U.S.C. § 1983, and negligence, false imprisonment, and assault under Tennessee law [Id. ].

"Where an amendment to a complaint would add a new party, the amendment must come within the statute of limitations period or relate back to the original filing date of the complaint." Lovelace v. City of Memphis Police Dep't, No. 08–2776, 2010 WL 711190, at *3 (W.D.Tenn. Feb. 24, 2010). "Naming a John Doe defendant cannot save a pleading from this requirement." Id.; Cox v. Treadway, 75 F.3d 230, 240 (6th Cir.1996).

The statute of limitations period for § 1983 actions is one year. Sharpe v. Cureton,

319 F.3d 259, 265 (6th Cir.2003). A party must bring claims for negligence, false imprisonment, and assault under Tennessee law within one year as well. Campbell v. McMinn Cnty., No. 1:10–CV–278, 2011 WL 5921431, at *3 (E.D.Tenn. Nov. 28, 2011) ; Johnson v. Dollar Gen. Corp., 2007 WL 2746952, at *3 (E.D.Tenn. Sept. 20, 2007) ; see also Tenn.Code Ann. § 28–3–104. The proposed amended complaint asserts that the actions underlying these claims took place on June 29, 2012 [Doc. 56–1]. Plaintiffs filed the motion to amend more than one year after the date of the alleged injury; thus, unless plaintiffs' claims against Officers Roberts, Nicol, and Ford relate back to the date of the original complaint—June 28, 2013—the Court must deny plaintiff's motion to amend because of futility.

"Rule 15(c) of the Federal Rules of Civil Procedure governs when an amended pleading ‘relates back’ to the date of a timely filed original pleading and is thus itself timely even though it was filed outside an applicable statute of limitations." Krupski v. Costa Crociere S.p.A., 560 U.S. 538, 541, 130 S.Ct. 2485, 177 L.Ed.2d 48 (2010). Where an amended pleading changes a party or a party's name, an amendment relates back to the original pleading if 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[,]"

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)(1)(C).

Defendants assert plaintiff fails to satisfy Rule 15(c)(1)(C)(ii)...