NOT RECOMMENDED FOR PUBLICATION File Name: 21a0363n.06
No. 20-6216
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED PEARL DUNLAP, ) Jul 23, 2021 ) DEBORAH S. HUNT, Clerk Plaintiff-Appellant, ) ) v. ) ON APPEAL FROM THE ) UNITED STATES DISTRICT SEVIER COUNTY, TENNESSEE, et al., ) COURT FOR THE EASTERN Defendants-Appellees. ) DISTRICT OF TENNESSEE ) )
BEFORE: ROGERS, BUSH, and LARSEN, Circuit Judges.
ROGERS, Circuit Judge. Jesse Dunlap initially filed this action against Sevier County,
Tennessee, and its employees and corrections officers, alleging violations of his constitutional
rights while he was an inmate in the county jail. Seven months into the discovery period, Mr.
Dunlap died. Mr. Dunlap’s attorney commenced proceedings to appoint an administrator for his
estate. While the probate process was pending, Mr. Dunlap’s attorney spent several months
attempting to negotiate a settlement and making informal discovery requests, but did not seek to
stay discovery or modify the scheduling order. Four months after Mr. Dunlap’s death, the county
jail defendants moved for summary judgment on the basis of immunity. The Dunlaps’ attorney
failed to timely respond, and instead filed three motions requesting scheduling relief and additional
time to conduct discovery. The district court denied all three of plaintiff’s motions for procedural
relief and granted summary judgment in favor of the county defendants. On appeal, Pearl Dunlap,
Jesse’s mother and now the substituted plaintiff in this case, contends that the district court abused No. 20-6216, Dunlap v. Sevier County, Tenn., et al.
its discretion by denying the three motions for procedural relief. However, the record reveals that
Mr. Dunlap and his attorney had ample time to conduct the necessary discovery while Mr. Dunlap
was alive, and counsel’s conduct after Mr. Dunlap’s death reflects a belief that he could prosecute
the action consistent with the original schedule. The district court reasonably determined that
procedural relief was not warranted after considering all relevant factors, and the grant of summary
judgment was proper.
Mr. Dunlap pleaded guilty to several minor criminal charges and was sentenced to serve
thirty days in the Sevier County Jail (“Jail”). He suffered from chronic mental illness, including
severe depression and paranoid delusions accompanied by suicidal ideations, for which he was
prescribed psychotropic medication. Mr. Dunlap alleged that, under his plea agreement, he was
to serve his time in the Jail’s medical ward and that the Jail would provide all medication to Mr.
Dunlap prescribed by a treating physician. When he reported to the Jail, however, a nurse
conducted an evaluation and determined that he was suicidal, and subsequently placed him on
suicide watch. He was stripped and placed in an observation cell where his behavior was
periodically recorded in a watch log. In one watch log entry, an unknown officer noted that Mr.
Dunlap was banging his head against the wall and demanding that he be given his medication. He
was reevaluated by a nurse after four days, then was released from observation and placed in the
general population. Within hours of his release, Mr. Dunlap fell off the top bunk bed in his cell
and was sent to a local hospital for treatment. After twenty-one days of incarceration, he was
released from jail without any other incidents or complaints.
On July 5, 2018, Mr. Dunlap brought this suit alleging, among other claims, that Jail staff
had neglected serious threats to his mental and physical health during his imprisonment in violation
of the Eighth Amendment prohibition on cruel and unusual punishment. U.S. Const. amend. VIII.
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Defendants were made up of two separate groups, the “county defendants” and the “Healthcare
defendants.” The county defendants, who are the appellees here, include Sevier County,
Tennessee, and the following individuals named both personally and in their official capacities:
Sheriff Ronald Seals, Chief Deputy Larry McMahan, Lieutenant Ian Morlean, Sergeant Kyle
Miller, Corporal David Buchanan, Officer Joey Leonard, and Officer Malcolm Brandriff. The
Healthcare defendants included QCHC, Inc., the Jail’s contractual healthcare provider, two of its
nurses, and a number of unidentified QCHC employees.
The district court issued a scheduling order setting the deadline for completion of all
discovery by November 13, 2019. The parties completed their initial disclosures pursuant to Rule
26(f) in October 2018. Fed. R. Civ. P. 26(f). Between October 2018 and May 2019, Mr. Dunlap
issued eleven summonses and responded to written discovery from the Healthcare defendants, but
did not serve any formal discovery requests to any of the defendants during the seven-month
period.
On May 24, 2019, Mr. Dunlap died. After “waiting an appropriate period,” Mr. Dunlap’s
attorney, Lance Baker, began working with Mr. Dunlap’s relatives to designate an administrator
for his estate. Shortly after Mr. Dunlap’s death, on May 30, 2019, Baker emailed counsel for the
county defendants to pursue settlement negotiations. The process was plagued with scheduling
conflicts and communication difficulties, and Baker observed that by August 2, 2019, it “became
clear” that the parties could not settle the case. In an email sent on August 2, 2019, Baker informed
opposing counsel that if the case were not resolved, he would need to take several depositions.
The county defendants’ counsel allegedly ignored some of Baker’s requests and refused to offer
Sheriff Seals or Chief Deputy McMahan up for depositions. In an affidavit, Baker testified that
he anticipated the defendants would move for summary judgment on qualified immunity grounds,
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and that, based on his experience, parties were generally reluctant to engage in discovery before
the court decided the qualified immunity issue. He believed that this was the reason that neither
party responded to his informal deposition requests.
On August 20, 2019, Baker filed a suggestion of death pursuant to Rule 25(a) alerting the
court to Mr. Dunlap’s death. Fed. R. Civ. P. 25(a). The notice stated that once the probate court
designated a legal representative for Mr. Dunlap’s estate, a motion would be filed to substitute the
administrator of the estate as the named plaintiff.
Before an administrator was appointed, however, the county defendants moved for
summary judgment on September 16, 2019, on the basis of qualified immunity for the individual
defendants and on the basis that the county was not liable under Monell v. Department of Social
Services, 436 U.S. 658 (1978). On the day of the deadline to respond, Baker moved to defer ruling
on the summary judgment motion pending limited discovery pursuant to Rule 56(d), but did not
respond to the merits of the summary judgment motion. Fed. R. Civ. P. 56(d). Baker submitted
an affidavit stating that he had been working to appoint Mr. Dunlap’s mother, Pearl Dunlap, as the
administrator of his estate. Baker noted that the parties had conducted little discovery because of
“settlement discussions” and various communications and scheduling issues in addition to Mr.
Dunlap’s death. Baker thus requested additional time so that, once she was substituted as the
plaintiff, Pearl Dunlap could depose a number of the named defendants. In the alternative, Baker
requested an additional 21 days to respond to the summary judgment motion, pointing to his efforts
in probate court and another case where he had a pressing statute of limitations deadline. This
request fell under Rule 6(b)(1). Fed. R. Civ. P. 6(b)(1).
On October 24, 2019, Baker moved to substitute Pearl Dunlap as the plaintiff, which the
magistrate judge granted the following month.
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On February 27, 2020, the district court denied the Rule 56(d) motion. The court ruled that
plaintiff had not “established good grounds to defer a ruling on the motion” because she had “not
presented any plausible specific reasons why she could not have obtained the facts essential to her
opposition through the usual means and within the time previously allowed for discovery in this
matter.” The court observed that Mr. Dunlap and plaintiff did not serve a single discovery request
during the lengthy pendency of the litigation and did not seek to compel discovery under the court’s
guidelines or the procedures described in Rule 37(a). Fed R. Civ. P. 37(a). The court further
declined to give plaintiff additional time to file a response to the summary judgment motion.
On March 1, 2020, plaintiff moved to dismiss the case without prejudice pursuant to Rule
41(a)(2). Fed. R. Civ. P. 41(a)(2). The court denied the motion with respect to the county
defendants, ruling that dismissal without prejudice would cause them to suffer legal prejudice as
they had already undertaken modest efforts to prepare for trial and had filed a dispositive motion
in advance of the request for dismissal, and because plaintiffs had been dilatory in their efforts to
obtain discovery in the first place. The court did, however, grant the motion to dismiss plaintiff’s
claims against the Healthcare defendants, observing that the same factors did not weigh as heavily
in the Healthcare defendants’ favor. The court thereafter granted summary judgment in favor of
the county defendants on all claims. Plaintiff timely appealed.
Plaintiff raises five issues on appeal. In the first three, she argues that the district court
abused its discretion by denying her Rule 56(d), Rule 6(b)(1), and Rule 41(a)(2) motions. “With
good reason, district courts ordinarily enjoy broad discretion in matters of pretrial management,
scheduling, and docket control.” Kimble v. Hoso, 439 F.3d 331, 336 (6th Cir. 2006). Analyzing
the relevant factors for each motion, the court reasonably concluded that the requested procedural
relief was not warranted, and the denials were a proper exercise of the court’s discretion. Next,
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plaintiff contends that the court abused its discretion by not staying the litigation as a matter of
course once it learned that Mr. Dunlap had died. However, this argument was not raised before
the district court and is forfeited on appeal. Lastly, plaintiff challenges the grant of summary
judgment in favor of the county defendants, but a review of the record confirms the lack of any
genuine dispute of material fact.
A. Rule 56(d) Motion
First, the district court did not abuse its discretion when it denied plaintiff’s motion to defer
ruling on the summary judgment motion under Rule 56(d). Rule 56(d) permits the district court
to defer consideration of a summary judgment motion, “[i]f a nonmovant shows by affidavit or
declaration that, for specified reasons, it cannot present facts essential to justify its opposition.”
The Dunlaps had sufficient time and opportunity to collect the information necessary to contest
summary judgment, as the case remained pending for fourteen months before the county
defendants filed their motion. Mr. Dunlap had at least seven months to engage in formal discovery,
and Baker made no serious effort to collect discovery in the four months after Mr. Dunlap’s death.
Baker similarly made no attempt to stay discovery and preserve plaintiff’s ability to conduct
discovery in the future. “An abuse of discretion occurs when the reviewing court is left with the
definite and firm conviction that the trial court committed a clear error of judgment,” which
requires that the trial court’s ruling “was arbitrary, unjustifiable, or clearly unreasonable.” FTC v.
E.M.A. Nationwide, Inc., 767 F.3d 611, 623 (6th Cir. 2014) (quoting United States v. Hunt, 521
F.3d 636, 648 (6th Cir. 2008)). There was no such abuse in this case.
Consideration of the factors our court applies when determining whether relief under Rule
56(d) is warranted shows that the district court made no clear error of judgment. These factors
are: “(1) when the appellant learned of the issue that is the subject of the desired discovery; (2)
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whether the desired discovery would have changed the ruling below; (3) how long the discovery
period had lasted; (4) whether the appellant was dilatory in its discovery efforts; and (5) whether
the appellee was responsive to discovery requests.” Plott v. Gen. Motors Corp., Packard Elec.
Div., 71 F.3d 1190, 1196-97 (6th Cir. 1995) (internal citations omitted).
The first Plott factor—when plaintiff first learned of the issue—supports the district court’s
decision. The Dunlaps and Baker knew of the relevant issues as early as September 2018, because
the county defendants plainly pleaded qualified immunity and other immunity defenses in their
answer to the complaint. Baker even testified that based on his “experience prosecuting civil rights
cases, [he] anticipated that one or more of the Defendants would be filing a motion to dismiss or
even a motion for summary judgment based, at least in part, on the qualified immunity defense.”
Mr. Dunlap’s sudden death does not affect the analysis of this factor. Plaintiff concedes that Baker
had all of the exhibits underlying the summary judgment motion in-hand by January 2019, well
before Mr. Dunlap’s death. If Mr. Dunlap’s testimony was truly necessary to dispute these
arguments, then Baker had at least five months to depose him. The Dunlaps and Baker therefore
had sufficient notice of the relevant issues.
The weight of the second Plott factor—whether the desired discovery would have changed
the outcome—is unclear. The district court did not expressly consider this factor. Plaintiff
contends that defendants’ deposition testimony would reveal facts sufficient to establish liability
on the part of the Jail and the corrections officers who interacted with Mr. Dunlap. For the sake
of argument, we assume without deciding that this factor weighs in favor of granting plaintiff’s
motion.
The third Plott factor supports the district court’s decision, because the length of the
discovery period was more than sufficient to obtain the information that plaintiff desired. Even
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accepting as true plaintiff’s assertion that the discovery period was seven months long, beginning
after initial disclosures were completed in October 2018 and ending when Mr. Dunlap died in May
2019, this was more than enough time to engage in formal discovery efforts. In Jordan v. City of
Detroit, 557 F. App’x 450, 456 (6th Cir. 2014), we held that seven months was a “reasonable time
frame” for discovery in a § 1983 action against a municipality. In Prewitt v. Hamline University,
764 F. App’x 524, 532-33 (6th Cir. 2019), we deemed a discovery period lasting approximately
six months reasonable in a race discrimination suit. Plaintiff’s asserted discovery period of seven
months falls squarely within the range of timeframes that we have considered reasonable.
Moreover, Baker’s actions indicate that he believed the discovery period extended beyond Mr.
Dunlap’s death. Baker sought to obtain discovery from the defendants in August 2019, months
after his client’s death, sending opposing counsel email requests to schedule depositions. This
would suggest that the discovery period lasted at least eleven months, up until the summary
judgment motion was filed. In any event, we need not decide the actual timeframe for discovery;
plaintiff’s proffered period of seven months was itself sufficient for completing discovery in this
case, particularly given Baker’s contention below that the “limited discovery” he desired would
only require a little over two months’ time to complete.
The fourth Plott factor—whether plaintiffs were dilatory in their discovery efforts—also
supports the district court’s decision. Baker admitted below that after exchanging initial
disclosures, Mr. Dunlap only responded to written discovery from the Healthcare defendants in
April 2019. This was the “extent of discovery.” Plaintiff offers no good reason why Mr. Dunlap
and Baker could not have issued a single discovery request upon the various defendants during the
seven- to eleven-month discovery period. Plaintiff argues that the original litigation strategy was
to rely solely on Mr. Dunlap’s testimony to prove a constitutional violation, and that his death
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forced her into seeking depositions from the defendants at such a late stage. This argument is
unavailing. Mr. Dunlap’s testimony alone likely would not have been enough to demonstrate a
constitutional violation. Such a violation requires showing that the defendant perceived and
ignored the inmate’s objectively serious medical need. Richmond v. Huq, 885 F.3d 928, 938 (6th
Cir. 2018). In all likelihood, the officers’ testimony would be necessary to determine the extent
of their knowledge and whether they relied on a medical professional’s assessment of Mr. Dunlap’s
condition. McGaw v. Sevier Cty., 715 F. App’x 495, 497-98 (6th Cir. 2017). Similarly, if plaintiff
intended to prove that Sevier County was liable under § 1983 under the theory that the
constitutional violation here occurred because of “a custom of tolerance or acquiescence of federal
rights violations,” see Thomas v. City of Chattanooga, 398 F.3d 426, 429 (6th Cir. 2005), it likely
would have needed more than Mr. Dunlap’s testimony.
Baker admits that he began his efforts to schedule depositions in August 2019, eleven
months after he learned of the immunity defenses in the Amended Answer and ten months after
the initial Rule 26(f) disclosures were completed. This was an inexplicably lengthy delay. In
Dowling v. Cleveland Clinic Foundation, 593 F.3d 472, 480 (6th Cir. 2010), we held that plaintiffs
were dilatory in seeking discovery where they “did not conduct discovery for substantial periods
of time and then only through very informal and vague emails.” The Dowling plaintiffs waited
until eight months into the discovery period to serve their first informal discovery request. Id. at
479-80. Here, the Dunlaps and Baker took essentially no advantage of the discovery period, and
the court reasonably concluded that additional time for discovery was not warranted. This factor
has substantial weight in our analysis, as the “main inquiry is ‘whether the moving party was
diligent in pursuing discovery.’” E.M.A. Nationwide, 767 F.3d at 623 (quoting Dowling, 593 F.3d
at 478). The resolution of this factor in favor of the county defendants therefore outweighs the
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second factor assumed to favor plaintiff and underscores why the court’s decision did not
constitute an abuse of discretion.
Finally, the fifth Plott factor—defendants’ responsiveness to discovery requests—also
supports the district court’s decision. We analyze this factor in the context of whether the appellee
missed any discovery deadlines, failed to turn over critical documents in response to a request for
production, or failed to respond to the appellant’s initial discovery requests. See, e.g., Cline v.
Dart Transit Co., 804 F. App’x 307, 316 (6th Cir. 2020); Doe v. City of Memphis, 928 F.3d 481,
495 (6th Cir. 2019). Here, there is nothing in the record to suggest that the county defendants
missed any discovery deadlines or were unresponsive to a formal discovery request. The county
defendants dispute that they resisted taking any depositions and contend on appeal that Baker’s
attempts to take depositions were “half-hearted and fleeting.” Because Baker’s email exchanges
with opposing counsel are not in the record, it is impossible to determine the scope or specificity
of the discovery requests.
Thus, even if we assume the second Plott factor falls in plaintiff’s favor, the Plott factors
support the district court’s decision, and the denial of the Rule 56(d) motion was not an abuse of
its discretion.
B. Rule 6(b)(1) Motion
Additionally, it was not an abuse of discretion for the district court to deny Baker’s request
for additional time to respond to the summary judgment motion. Rule 6(b)(1) provides that a court
“may” extend the time for a party to act if the party shows “good cause,” but it is not required to
grant such a request. Fed. R. Civ. P. 6(b)(1). Baker’s request, which was tucked into a single
paragraph at the end of the Rule 56(d) motion and did not cite Rule 6(b)(1), was based on his
“efforts to get a family member appointed as administrator of Mr. Dunlap’s estate and a pressing
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statute of limitations deadline.” Plaintiff argues that the district court erred by not even considering
the motion, pointing to the court’s statement that “the plaintiff never sought leave to file a response
out of time.” Although inaccurate, the court’s statement did not constitute an abuse of discretion
because the court’s order set forth its reasoning for why there was no good cause to delay the
proceedings. The court observed that the Dunlaps and Baker had known of the issues underlying
the summary judgment motion well in advance of the motion’s filing, casting doubt on any claims
that they did not have enough time to adequately prepare a response. The court concluded that
there was no “good reason” to delay ruling on the issues presented because the “pertinent issues
of fact and law” were identifiable from the briefing. This conclusion was not clearly unreasonable,
particularly in light of the court’s earlier determination that the Dunlaps had failed to engage in
any meaningful effort at discovery, leaving only sparse record for the court to review. District
courts have “inherent authority to control [their] docket in promoting economies of time and effort
for the court, the parties, and the parties’ counsel.” Jordan, 557 F. App’x at 456-57. (internal
quotation marks and citation omitted). The court enjoyed broad discretion to modify the case
management schedule, and it reasonably exercised that discretion in deciding that there was no
good reason to grant plaintiff additional time.
C. Rule 41(a)(2) Motion
The district court also did not abuse its discretion in denying plaintiff’s Rule 41(a)(2)
motion to voluntarily dismiss the action without prejudice with respect to the county defendants.
Fed. R. Civ. P. 41(a)(2). The court reasonably concluded that dismissal would prejudice the county
defendants in light of their modest efforts at trial preparation, the Dunlaps’ lack of diligence in
pursuing discovery, and the filing of the summary judgment motion. Rule 41(a)(2) provides, in
relevant part: “an action may be dismissed at the plaintiff’s request only by court order, on terms
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that the court considers proper.” Fed. R. Civ. P. 41(a)(2). Whether dismissal should be granted
“is within the sound discretion of the district court.” Grover by Grover v. Eli Lilly & Co., 33 F.3d
716, 718 (6th Cir. 1994) (citing Banque de Depots v. Nat’l Bank of Detroit, 491 F.2d 753, 757 (6th
Cir.1974)). These motions should generally be granted unless “defendant would suffer ‘plain legal
prejudice’ as a result of a dismissal without prejudice, as opposed to facing the mere prospect of a
second lawsuit.” Id. (citation omitted). The factors we consider in this context, as set out in
Grover, show that the district court did not abuse its discretion. These factors are: “defendant’s
effort and expense of preparation for trial, excessive delay and lack of diligence on the part of the
plaintiff in prosecuting the action, insufficient explanation for the need to take a dismissal, and
whether a motion for summary judgment has been filed by the defendant.” Id.
First, in addition to timely serving initial disclosures upon Baker and submitting a final
witness list, the county defendants also undertook the effort and expense of moving for summary
judgment and responding to plaintiff’s various procedural motions. The district court reasonably
characterized these efforts at preparing for trial as modest but still tangible. The case was pending
for over a year, and the defendants’ activities were directed at matters that either advanced
discovery or the litigation as a whole. More significantly, the court’s decision was grounded in its
analysis of the second Grover factor, finding that the Dunlaps lacked diligence in prosecuting this
action. The court observed that “there is no excuse apparent from the record for the complete
failure by plaintiff’s counsel to make any detectable effort to obtain the discovery that the plaintiff
now says she needs to rebut the defendants’ challenges. That lack of diligence contrasts with
conduct of the county defendants’ counsel, who worked up the case within the original case
management timeline established by the Court.” The analysis of the Rule 56(d) factors confirms
this view. Third, the court reasonably explained that dismissal was not warranted where plaintiff’s
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only justification was an “obvious desire to restart the litigation and secure by other means the
scheduling relief” that was previously denied, which plaintiff does not dispute here. Fourth, the
court reasonably concluded that voluntary dismissal would cause the county defendants to suffer
plain legal prejudice where they had filed a summary judgment motion months before plaintiff
filed her Rule 41(a)(2) motion. Prejudice is especially likely where plaintiff failed to file a timely
response to the county defendants’ summary judgment motion and it was virtually certain that she
would receive an adverse judgment. “At the point when the law clearly dictates a result for the
defendant, it is unfair to subject him to continued exposure to potential liability by dismissing the
case without prejudice.” Grover, 33 F.3d at 719.
Thus, the court’s evaluation of the Grover factors was reasonable, and its decision to deny
plaintiff’s motion was not an abuse of its discretion.
D. Automatic Stay
Plaintiff argues for the first time on appeal that Mr. Dunlap’s death terminated Baker’s
authority to act, including any authority to compel or stay discovery or modify the scheduling
order, and therefore it was an abuse of discretion for the court to not automatically stay the
litigation upon learning of Mr. Dunlap’s death. Because the argument was not raised below, it is
forfeited.
In his two affidavits, Baker never claimed that Mr. Dunlap’s death terminated his authority
to act or made it impossible to obtain discovery. Rather, Baker stated that a variety of factors got
in the way of deposition discovery, including: “settlement discussions, various communications
issues among counsel, the unavailability of counsel, Mr. Dunlap’s death, and the delay by defense
counsel in responding to [Baker’s] request to schedule depositions.” Baker did not, at any point
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in the litigation, claim that Mr. Dunlap’s death divested him of authority to act. Plaintiff and Baker
also never requested a stay below.
Consequently, because this argument was not properly raised before the district court, it
was forfeited. “[A]ppellate courts ordinarily abstain from entertaining issues that have not been
raised and preserved in the court of first instance.” Wood v. Milyard, 566 U.S. 463, 473 (2012).
Despite this general rule, we may exercise our discretion to review issues raised for the first time
on appeal in exceptional circumstances. Plaintiff argues that this is one of those times. Four
factors guide the exercise our of discretion in such matters, though none applies with enough force
to merit review of plaintiff’s new arguments. They are:
1) whether the issue newly raised on appeal is a question of law, or whether it requires or necessitates a determination of facts; 2) whether the proper resolution of the new issue is clear beyond doubt; 3) whether failure to take up the issue for the first time on appeal will result in a miscarriage of justice or a denial of substantial justice; and 4) the parties’ right under our judicial system to have the issues in their suit considered by both a district judge and an appellate court.
Fifth Third Bank v. Lincoln Fin. Sec. Corp., 453 F. App’x 589, 596 (6th Cir. 2011) (quoting
Scottsdale Ins. Co. v. Flowers, 513 F.3d 546, 552 (6th Cir. 2008)).
These factors do not support consideration of plaintiff’s new argument. Although the
question of whether Mr. Dunlap’s death terminated Baker’s authority to act is a question of law,
the proper resolution of the issue in this case is not clear beyond doubt. Plaintiff cites Tennessee
law and the Restatement of the Law Governing Lawyers for the proposition that a client’s death
terminates the attorney’s authority to act. Darling Stores v. Fid.-Bankers Tr. Co., 156 S.W.2d 419,
422 (Tenn. 1941). However, the Restatement provides that “[i]n extraordinary circumstances, the
lawyer may exercise initiative, for example taking an appeal when the time for doing so would
expire before a personal representative could be appointed.” Restatement (Third) of the Law
Governing Lawyers § 31 (2000), comment e. Here, the need to conduct discovery and preserve
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Mr. Dunlap’s claims could potentially qualify as an extraordinary circumstance, thereby permitting
Baker to move to compel discovery or stay the case even before Pearl Dunlap was substituted as
the plaintiff. If Baker believed that he had the authority to take the “extraordinary step” of filing
the Rule 56(d) motion, it is inexplicable why he would not have the authority to request a stay. In
any event, plaintiff’s entire argument is belied by the fact that Baker did act as though he had the
authority to prosecute this action after Mr. Dunlap’s death, given his attempts to negotiate a
settlement with the county defendants and schedule depositions. It strains credulity to believe that
Baker would have authority to ultimately dispose of Mr. Dunlap’s claims, but not to request that
the court stay the litigation or modify the scheduling order to accommodate the appointment of a
substitute plaintiff. Lastly, our decision not to take up this issue would not lead to a miscarriage
of justice, as the Dunlaps had more than enough time to engage in formal discovery and to request
a stay after Mr. Dunlap’s death. As we stated in Nelson v. Tennessee Gas Pipeline Co., 243 F.3d
244, 250 (6th Cir. 2001), “fairness does not require that a plaintiff . . . be afforded a second chance
to . . . shore up his case before the court may consider a defendant’s motion for summary
judgment.” Thus we exercise our discretion to decline review of this issue in the first instance.
E. Summary Judgment
Finally, plaintiff challenges the district court’s grant of summary judgment, claiming it was
“based upon a misapprehension of record facts and a misapplication of applicable law.” This
argument is without merit. Although the county defendants’ summary judgment motion was
unopposed, the court was required to “review carefully the portions of the record submitted by the
moving party to determine whether a genuine dispute of material fact exists.” E.M.A. Nationwide,
767 F.3d at 630. The district court did so here.
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To show that the county defendants had violated Mr. Dunlap’s constitutional rights under
the Eighth Amendment, the evidence had to demonstrate that the defendants perceived and ignored
his objectively serious medical needs. See Richmond, 885 F.3d at 938. Examining the sparse facts
in the record, the district court observed that there was no evidence that the county defendants
were aware of and ignored any objectively serious medical need. The medical intake form noted
that Mr. Dunlap had mental health issues, and after being evaluated by a medical professional, he
was placed on suicide watch to address that serious risk to his health and safety. When he fell off
of his bunk, he was taken to the hospital for treatment. In this respect, every serious medical need
reflected in the record was appropriately handled by the prison officials.
Plaintiff contends that Mr. Dunlap had another objectively serious medical need—the need
to receive his psychotropic medication—and the prison officials were deliberately indifferent by
denying him that medication. For proof, plaintiff points to a single watch-log entry, written by an
unknown officer, stating: “[inmate] is having serious problems, banging head on concrete,
screaming he needs his meds, will follow up [with] intake nurse who verified meds to find out if
[doctor] approved any.” However, this entry does not establish that prison officials perceived and
ignored any serious medical needs. In fact, the latter portion of the entry indicates that the prison
official who observed Mr. Dunlap’s behavior intended to consult the jail nurse to see if Mr. Dunlap
had been prescribed any medication. This entry therefore shows that the prison official intended
to address Mr. Dunlap’s medical needs, not ignore them. Moreover, this entry shows that the
prison official was attempting to follow the guidance of a medical professional. It is not
“unconstitutional for municipalities and their employees to rely on medical judgments made by
medical professionals responsible for prisoner care.” Graham, 358 F.3d at 384 (internal quotation
marks and citation omitted). Furthermore, as the district noted, the vast majority of the watch long
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entries stated that Mr. Dunlap was having no issues, and the entry plaintiff cites is the only one
where there is any suggestion that he had any issues while under observation. Therefore this
incident does not raise a genuine dispute of material fact as to whether any of the prison officials
were deliberately indifferent toward Mr. Dunlap’s medical needs.
Lastly, the district court properly noted that Sevier County could not be held liable because
there were no facts in the record showing that any unconstitutional custom, policy, or practice of
the county had a role in causing Mr. Dunlap the alleged harm. Consequently, the county was
entitled to judgment as a matter of law. Monell, 436 U.S. at 691. Thus, there was no genuine
dispute of material fact with respect to the county defendants’ Monell defenses.
For the foregoing reasons, the district court’s denial of plaintiff’s motions for procedural
relief did not constitute an abuse of discretion, and we affirm the grant of summary judgment in
favor of the county defendants.
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