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Kilpatrick v. O'Rourke

United States District Court, M.D. Tennessee, Nashville Division

November 27, 2017





         By Order entered August 3, 2016 (Docket Entry No. 9), this pro se and in forma pauperis action was referred to the Magistrate Judge for pretrial proceedings under 28 U.S.C. § § 636(b)(1)(A) and (B), Rule 72(b) of the Federal Rules of Civil Procedure, and the Local Rules of Court.

         Presently pending before the Court are motions for summary judgment filed by Defendants Robert Arnold (Docket Entry No. 47), Rudd Medical Services, P.L.C., John Daniel Rudd, and Kenneth Tucker (Docket Entry No. 51), Melissa Foster (Docket Entry No. 58), and James O'Rourke (Docket Entry No. 61). Plaintiff has not responded to the motions. For the reasons set out below, the undersigned Magistrate Judge respectfully recommends that the motions be granted and that this action be dismissed as to all claims and Defendants.[1]


         Michael Kilpatrick (“Plaintiff”) is a pre-trial detainee within the custody of the Rutherford County, Tennessee Sheriff's Office (“RCSO”). He is currently confined at the Rutherford County Detention Center (“Detention Center”) in Murfreesboro, Tennessee. He filed this action pro se and in forma pauperis on July 14, 2016, seeking monetary and other relief under 42 U.S.C. § 1983 for alleged violations of his constitutional rights. See Complaint (Docket Entry No. 1). Although not filed as an amended complaint, Plaintiff supplemented the allegations of the Complaint with a subsequent filing styled as “Prisoner Civil Rights Violation.” See Docket Entry No. 4.

         Plaintiff alleges that, on March 6, 2016, he was driving his car with his three children in the backseat when police officer James O'Rourke (“O'Rourke”) shot him in the left shoulder after Plaintiff failed to stop his car when O'Rourke tried to halt the car. Plaintiff alleges that he suffered serious injuries and was also subjected to excessive force by unnamed officers after the shooting.[2]Plaintiff contends that O'Rourke used unnecessary force against him and acted without regard for the safety of the children who were in the car. Plaintiff also contends that O'Rourke's actions occurred because Robert Arnold, the Rutherford County Sheriff at the time, failed to properly train the employees of the RCSO.

         Plaintiff asserts that he was airlifted to Vanderbilt University Medical Center after the shooting, where doctors concluded that he needed surgery on his shoulder because a bullet had broken his collar bone. Plaintiff was thereafter detained at the Detention Center. He alleges that he has not been provided with proper medical care for his injuries and has been given only an extra mattress and Ibuprofen. He alleges that he has been denied a needed surgery because of the cost of the surgery and that, as a result of being denied the surgery, his “abilities” are now limited. Plaintiff attributes the lack of medical care to the actions of Rudd Medical Services, P.L.C. (“Rudd Medical”), a company that provides medical care to inmates at the Detention Center, and to Dr. John Daniel Rudd (“Rudd”), nurse practitioner Melissa Foster (“Foster”), and nurse Kenneth Tucker (“Tucker”), who are medical care providers at the Detention Center.

         Upon initial review of the lawsuit under 28 U.S.C. §§ 1915(e)(2)(B) and 1915A, the Court found that Plaintiff asserted arguable claims that his constitutional rights had been violated and ordered that process issue to: 1) Officer O'Rourke in his individual capacity on a claim of the use of unconstitutional force; 2) Rutherford County, Tennessee, as sued via the claims against Sheriff Arnold in his official capacity, [3] on a claim of inadequate training and/or supervision; and, 3) Rudd, Foster, and Tucker on a claim of inadequate medical care. See Order and Memorandum entered August 3, 2016 (Docket Entry Nos. 8 & 9).

         Plaintiff's motion for the appointment of counsel was denied by Order entered November 2, 2016 (Docket Entry No. 13), and, upon Defendants' filing of answers, a scheduling order was entered that provided deadlines for discovery and pretrial activity in the case. See Docket Entry No. 39. In addition to their pending motions for summary judgment, Defendants Foster, Rudd, Tucker, and Rutherford County have filed motions to compel Plaintiff to respond to their discovery requests. See Docket Entry Nos. 65, 66, and 67. Plaintiff has not responded to these motions.[4]


         Defendant O'Rourke does not dispute firing three shots at Plaintiff on the night in question, but he contends that the undisputed facts show that his use of force was objectively reasonable under the circumstances and was, thus, constitutionally permissible. O'Rourke asserts that the undisputed facts show that: 1) he and other officers responded to a radio dispatch report about a possible domestic assault in progress at a Murfreesboro hotel and a male subject driving recklessly in the hotel parking lot with children in the vehicle, children whom he had threatened to kill; 2) Plaintiff fled in his car from the responding officers and an ensuing car chase occurred; 3) Plaintiff rammed a police car with his vehicle during the chase and rammed O'Rourke's car with his vehicle when O'Rourke attempted to block the path of Plaintiff's car; 4) Plaintiff eventually briefly stopped his car, which was surrounding by O'Rourke and other officers; and, 5) Plaintiff put his car in reverse, slamming into another police vehicle, then began to accelerate his car toward an area of bystanders and a police officer. O'Rourke, who was positioned near the driver's side door of Plaintiff's car, asserts that these events caused him to reasonably believe that using potentially deadly force against Plaintiff was necessary to protect the lives and well-being of other persons and that he discharged his weapon toward Plaintiff, striking Plaintiff and leading to his apprehension by the officers. O'Rourke supports his motion with his own declaration. See Docket Entry No. 61-1.

         Defendant Rutherford County contends that Plaintiff's inadequate training claim warrants dismissal because the undisputed facts show that O'Rourke was an officer employed by the City of Murfreesboro Police Department and was not an employee of Rutherford County at the time of the events at issue. As such, Rutherford County argues that there is no factual support for a claim of municipal liability against it based on a theory that it failed to adequately train Officer O'Rourke in a manner that caused the alleged excessive use of force by O'Rourke. In support of its motion, Rutherford County relies upon the affidavit of RCSO Major Steve Spence. See Docket Entry No. 48-1.

         In separately filed motions for summary judgment, Defendants Rudd Medical, Rudd, and Tucker, and Defendant Foster (hereinafter referred to collectively as “the Health Care Defendants”) contend that the undisputed evidence shows that Plaintiff was provided with appropriate and constitutionally adequate medical care at the Detention Center for his shoulder injury, including: 1) two post-operative visits with Vanderbilt University medical staff; 2) several off-site physical therapy sessions; 3) having numerous physical therapy exercise sessions at the Detention Center; and 4) regular exams and treatment by the medical staff at the Detention Center. The Health Care Defendants further contend that Plaintiff has offered no evidence supporting his claim that he was denied a surgery for his shoulder and no evidence showing that any of them acted in a manner that was deliberately indifferent to Plaintiff's serious medical needs. They also argue that the undisputed evidence shows that Plaintiff unilaterally ceased attending physical therapy sessions at the Detention Center in late ...

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