United States District Court, W.D. Kentucky, Owensboro Division
MEMORANDUM OPINION AND ORDER
H. MCKINLEY JR., SENIOR JUDGE.
matter is before the Court on Defendants' Motion for
Reconsideration [DN 246]. Fully briefed, this matter is ripe
for review. For the following reasons, the Defendants'
Motion for Reconsideration is DENIED.
Damon McCormick brought this lawsuit for alleged wrongs he
suffered while detained at the Henderson County Detention
Center (“HCDC”). The Defendants filed motions
[DNs 229 & 233] asking the court to grant summary
judgment in their favor on all McCormick's claims, which
this Court granted in part and denied in part in a Memorandum
Opinion and Order dated January 29, 2019 [DN 244].
Specifically, the Court refused to grant summary judgment to
Lieutenant Cody Buckman, Major William Payne, Sergeant
Jonathan Parrish, and Unknown HCDC Defendants (collectively,
the “HCDC Defendants”) on McCormick's claim
for assault and battery, finding there was a dispute of
material facts between the evidence presented by the HCDC
Defendants and the story told by McCormick in his Verified
the HCDC Defendants ask the Court to reconsider its decision.
They argue that the facts presented in McCormick's
Verified Response should not have been considered by the
Court at the summary judgment stage because the Verified
Response does not meet the requirements to be included in the
the HCDC Defendants filed the present Motion for
Reconsideration regarding the assault and battery claim, they
filed a second Motion for Reconsideration [DN 250] related to
the Court's decision to appoint counsel to McCormick.
After a teleconference, Magistrate Judge Brennenstuhl
directed, “In the event Mr. Wilkey remains as
Plaintiff's counsel, Plaintiff will file a response to
[the motion to reconsider summary judgment] within 7 days on
the ruling of [the motion to reconsider appointment of
counsel].” (Order [DN 258] at 2). On May 7, 2019, the
Court denied the HCDC Defendants' request to reconsider
the appointment of Plaintiff's counsel. At that point,
McCormick's counsel should have filed a response to the
present motion within seven days but failed to do so.
Instead, McCormick himself submitted a handwritten document
stating his objections to the present Motion for
Reconsideration. However, because McCormick is represented by
counsel, it is not appropriate for the Court to consider
submission from McCormick directly. Therefore, the Court will
rule on the Motion for Reconsideration solely based on the
original filing and without the benefit of a response from
Standard of Review
to alter or amend a judgment may be “made for one of
three reasons: (1) An intervening change of controlling law;
(2) Evidence not previously available has become available;
or (3) It is necessary to correct a clear error of law or
prevent manifest injustice.” United States v.
Jarnigan, No. 3:08-CR-7, 2008 WL 5248172, at *2 (E.D.
Tenn. Dec. 17, 2008) (citing Fed.R.Civ.P. 59(e); Helton
v. ACS Grp., 964 F.Supp. 1175, 1182 (E.D. Tenn. 1997));
see GenCrop, Inc. v. Am. Int'l Underwriters, 178
F.3d 804, 834 (6th Cir. 1999). Rule 59(e) is not intended to
be used to “‘relitigate issues previously
considered' or to ‘submit evidence which in the
exercise of reasonable diligence, could have been submitted
before.'” United States v. Abernathy, No.
08-20103, 2009 WL 55011, at *1 (E.D. Mich. Jan. 7, 2009)
(citation omitted); see also Elec. Ins. Co. v.
Freudenberg-Nok, Gen P'ship, 487 F.Supp.2d 894, 902
(W.D. Ky. 2007) (“Such motions are not an opportunity
for the losing party to offer additional arguments in support
of its position.”). Motions to alter or amend judgments
under Rule 59(e) “are extraordinary and sparingly
granted.” Marshall v. Johnson, No.
3:07-CV-171, 2007 WL 1175046, at *2 (W.D. Ky. Apr. 19. 2007).
HCDC Defendants contend that it was clear error of law for
the Court to consider information put forth in
McCormick's Verified Response when ruling on their Motion
for Summary Judgment. Although the HCDC Defendants admit that
“a verified pleading may in some circumstances serve as
an affidavit for summary judgment purposes, ” they
argue that McCormick's Verified Response cannot serve as
an affidavit because it does not “strictly adhere to
the requirements of a traditional affidavit.” (HCDC
Defs.' Mot. for Reconsideration [DN 246] at 2). The Court
Civ. P. 56(c)(4) states, “An affidavit or declaration
used to support or oppose a motion must be made on personal
knowledge, set out facts that would be admissible in
evidence, and show that the affiant or declarant is competent
to testify on the matters stated.” Allegations within a
verified pleading may be treated the same as an affidavit if
they comply with these requirements; otherwise, the Court
should not treat the contents of verified pleadings the same
as evidence when ruling on summary judgment. As guidance on
this principle, the HCDC Defendants direct the Court's
attention to the case of Totman v. Louisville Jefferson
Co. Metro Gov't, 391 Fed. App'x 454 (6th Cir.
2010). There, the Sixth Circuit considered whether facts
presented in a Verified Complaint could be evidence. At the
summary judgment stage, the district court considered the
plaintiff's excessive force allegations from his Verified
Complaint. On appeal, the Sixth Circuit found that it was
error for the district court to treat the allegations as
evidence because the Verified Complaint did not meet the
standard set forth in Rule 56. Specifically, the court took
issue with incorporating allegations that were merely based
on the plaintiff's beliefs. With regards to one
defendant, Officer Hornback, the plaintiff admitted in a
deposition that while he knew Officer Hornback was present at
the time of the excessive force, he did not know if Officer
Hornback participated in the attack. For this reason, the
Court found that the plaintiff's “allegation in his
complaint that Officer Hornback beat him is therefore nothing
more than speculation, and speculation is not admissible
evidence.” Id. at 464. Because this did not
meet the Rule 56 evidentiary standard, the Sixth Circuit
ruled that it was error for the Court to consider the
plaintiff's speculation and belief as evidence.
in mind the standards of Rule 56, the Court finds that in
this case, McCormick's Verified Response should be given
the same weight as an affidavit. Within his Verified Response
to the HCDC Defendants' Motion for Summary Judgment,
McCormick presents his version of the events that led to him
being pepper sprayed on three occasions during his stay at
HCDC. In describing the three instances of alleged excessive
force, McCormick revealed what he personally experienced. For
example, on the day of the first pepper spraying, McCormick
claims, “Four (4) employees entered his cell and doused
him with pepper spray.” (Resp. at 7). McCormick's
testimony about events that took place in his prison cell are
certainly based on personal knowledge, admissible in
evidence, and matters on which he is competent to testify.
Unlike the prisoner in Totman, McCormick's claims are not
based on speculation or beliefs but rather, McCormick
recounts the dispositive facts as he experienced them. For this
reason, although they are not presented in a formal
affidavit, McCormick's Verified Response complies with
the requirements of Rule 56. The Court concludes it did not
commit clear error in accepting the evidence presented and
finding a genuine dispute of material facts to deny summary
judgment to the HCDC Defendants.
HEREBY ORDERED that the HCDC Defendants' Motion for