Gregory v. Shelby County

Decision Date16 December 1999
Docket Number98-5976,98-6174,98-6175,Nos. 98-5913,s. 98-5913
Citation220 F.3d 433
Parties(6th Cir. 2000) Mickey Gregory, as Administrator of the Estate of Gerald Gregory, Plaintiff-Appellant(98-5913/5976/6174)/Cross-Appellee, v. Shelby County, Tennessee; A.C. Gilless, individually and in his capacity as Sheriff of Shelby County, Tennessee; Jerry Ellis, Defendants-Appellees, Rhett Shearin, Defendant-Appellee/Cross-Appellant (98-6175). Argued:
CourtU.S. Court of Appeals — Sixth Circuit

Appeal from the United States District Court for the Western District of Tennessee at Memphis; No. 95-03040--J. Daniel Breen, Magistrate Judge. [Copyrighted Material Omitted]

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Stephen R. Leffler, Memphis, Tennessee, for Plaintiff-Appellant/Cross-Appellee.

Brian L. Kuhn, FORD & HARRISON, Memphis, Tennessee, for Defendant-Appellee Shelby County.

Fred E. Jones, Jr., STEWART, WILKINSON & WILSON, Memphis, Tennessee, for Defendant-Appellee/Cross-Appellant Shearin.

Michael M. Richards, BAKER, DONELSON, BEARMAN & CALDWELL, Memphis, Tennessee, for Appellees.

Before: RYAN and NORRIS, Circuit Judges; NUGENT, District Judge.*


NUGENT, District Judge.

The plaintiff, Mickey Gregory, as Administrator of the Estate of Gerald Gregory, appeals four decisions of the trial court: (1) the grant of a directed verdict to defendant Shelby County; (2) the grant of remittitur to defendants Rhett Shearin and Jerry Ellis; (3) the dismissal of the official capacity claims against defendant Rhett Shearin; and, (4) the denial of the plaintiff's motion for attorney fees against defendant Shelby County.

The defendant Rhett Shearin cross-appeals arguing the trial court committed reversible error by not compelling a witness to testify and instead allowing the videotaped deposition of the witness to be introduced at trial. The plaintiff argues the trial court need not threaten a witness serving a life sentence with contempt in order to find a witness unavailable and even if the trial court erred in its decision, the error was harmless.

We affirm the trial court's directed verdict, dismissal of official capacity claims against Rhett Shearin, and the denial of the motion for attorney fees. We reverse the grant of remittitur to defendants Rhett Shearin and Jerry Ellis. And, we find no reversible error with respect to the use of the witness's videotaped deposition.


The allegations which follow were made in the Second Amended Complaint. Gerald Gregory, the decedent, was confined in the Shelby County jail on March 21, 1995. Jerry Ellis, a fellow inmate, was housed in the cell next to Gerald Gregory. That night, Mr. Ellis attacked Mr. Gregory inflicting severe injuries resulting in Mr. Gregory's death on March 24.

Mickey Gregory, the administrator of his brother's estate, filed this action against the county, numerous county officials and the inmate who killed his brother. The Second Amended Complaint alleged that the county officials "inflicted cruel and unusual punishment upon the violation of the Eighth Amendment....and deprived him of life and liberty without due process in violation of the Due Process Clause of the Fifth and Fourteenth Amendments...." As for Mr. Gregory's killer, Jerry Ellis, the Second Amended Complaint sought recovery under Tennessee law.

With respect to the allegations against the county defendants, the Second Amended Complaint alleged:

At the time of the injuries, a policy or custom implemented by County Defendants was in effect that allowed inmates out of their cells for showers, exercise, and other purposes without adequate supervision or other measures to ensure the safety of the inmates and to protect them from harmful contact from other inmates.

...At the time of the injuries and death of Gerald Gregory, County Defendants knew or should have known that the inmates on J-Pod posed a severe risk of harm to one another and required a high level of supervision. County Defendants were acting under color of law pursuant to authority granted by Shelby County. Their acts and omissions were undertaken with deliberate indifference to the safety of the Plaintiff.

...County Defendants directly and proximately caused the Deceased's grievous injuries and eventual death by acting with deliberate indifference in maintaining a jail unfit for the care and custody of the prisoners and extremely dangerous to its inhabitants. Defendants had ample notice of the unconstitutional conditions by virtue of the notorious overcrowding, inadequate staffing and supervision, the absence of classification of prisoners on the basis of their known dangerousness, and the violent and hostile climate at the jail. Gerald Gregory, as a known homosexual, was in a greater position of danger within the jail population than a heterosexual inmate would have been. County Defendants were on notice of these defects by virtue of these conditions....

The case was referred to the magistrate judge who tried the case by agreement of all the parties.

At trial, deputy jailer Robert Hardy testified that on March 22, the day after the attack took place, he found Mr. Gregory bleeding in his cell. Describing Mr. Gregory, Officer Hardy testified, "[h]is eyes were all swollen. His lips were busted. Dried blood was on his face, looked like he had been beaten." Although badly injured, Mr. Gregory said that "he was jumped upon while he was coming back from the showers on the evening shift."

Mr. Gregory was transported to the Regional Medical Center, and he died approximately one and a half days after he was discovered in his cell. The county medical examiner, Dr. O.C. Smith testified that he ruled the death a homicide. The medical examiner further testified that the autopsy revealed that there was significant brain damage, and it was possible for a person to be pushed or propelled into something with such force to produce the injury and death of the decedent.

The jury also heard testimony from Dryan Campbell another inmate in the unit where the attack occurred. When Mr. Campbell was called to testify, he refused to answer questions because of alleged harassment by officers and other inmates. Based upon Mr. Campbell's refusal to testify, the trial court ruled that the witness was unavailable, and allowed his previously taken deposition to be read into the record. This testimony included the following:

Q. Do you remember a fight in March of 1995 between Jackie Stewart1 and an inmate by the name of Jerry Ellis?

A. What I remember is that one night Ellis and Stewart got to arguing, and then the next night, the next day, they argued a little more the next morning and then when Officer Shearin came on, Officer Shearin opened up Stewart's door and let Ellis--let Jerry Ellis go into Stewart's cell and I heard a lot of beating and banging around. And Ellis was whooping and hollering, talking about he was beating him and, you know, making him do sexual things with him and stuff like that.

Q. Now could you--in your cell could you see what happened?

A. No, sir, I could not see what happened.

Q. What could you see?

A. The only thing I saw, I saw Officer Shearin when he walked past my cell he was unzipping his pants, and he said, 'I'm going back here and get me a blow job from Stewart'. And he told Ellis to hurry up doing what he was doing because he was going to make Stewart suck his penis, and that was all I could see.

Inmate Campbell further testified as follows:

Q. Did you hear Officer Shearin say anything before he opened those two cell doors?

A. Officer Shearin came down into the pod, he was talking to Ellis. He told Ellis, okay, I'm going to let you in. Jerry Ellis asked Officer Shearin would he let him into Stewart's cell and Officer Shearin walked past my cell, I was standing up in front of my door, he walked past my cell and he told Ellis, okay, I'm going to let you in. And walked back up to the front where the control box was at to the cells, he opened up the box and opened up Stewart's door and he opened up Ellis' door.

Q. At that time describe for us what you heard?

A. Okay, I heard Officer Shearin tell Ellis he was going to let him into his cell. And then after Officer Shearin opened up both cells, he didn't say it real loud, you know what I'm saying, he didn't say it loud. He said, Uh-huh, Stewart, you know we got you. I let Ellis into your cell. We got you now....

Official jail policy did not permit two doors of a unit to be open at the same time. Novella Smith-Arnold, who worked in the jail as a counselor, testified that J-Pod, where the incidents giving rise to this litigation occurred, was a dirty area and other pods in the prison were like the Taj Mahal compared to J-Pod. Ms. Smith-Arnold also testified as follows:

Q. Prior to March of 1995, and including March of 1995, did you have opportunity to go into J Pod?

A. I always went in there. That was a role of mine.

Q. About what time of day was your normal trip to J Pod?

A. It depended. Sometimes I would get a call at my office from a deputy or chief jailer saying come see a prisoner for us. If I went in earlier, I go to J Pod sometimes three times a day, sometimes twice, and sometimes I would go once, and I would also go on Saturdays.

Q. When you would go into J Pod did you ever notice anything unusual about the cell doors?

A. Not unusual. The cell doors would be open periodically.

Q. More than one at a time?

A. Yes, of course.

Q. How often did you see that occur?

A. Often.

Sergeant William Cash of the Internal Affairs Division of the Sheriff's Office conducted an investigation of the incident and determined that no violation of jail policies and procedures had occurred. However, Sergeant Cash testified that Officer Shearin failed to document the beating and that he had a pattern of insufficiently documenting events.

Prior to trial, Defendants Claude Baker, Charles...

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