                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 17a0219n.06

                                           No. 16-5407

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

JOE PEPPERS, as surviving natural parents         )
and next of kin of Stewart Peppers, Deceased;     )                               FILED
NATASHA PEPPERS, as surviving natural             )                          Apr 13, 2017
parents and next of kin of Stewart Peppers,       )                     DEBORAH S. HUNT, Clerk
Deceased,                                         )
                                                  )
       Plaintiffs-Appellants,                     )
                                                  )          ON APPEAL FROM THE
v.                                                )          UNITED STATES DISTRICT
                                                  )          COURT FOR THE EASTERN
WASHINGTON COUNTY, TENNESSEE;                     )          DISTRICT OF TENNESSEE
CORRECTIONS OFFICER CORNETT, official )
capacity; CORRECTIONS OFFICER DRAPER, )                      OPINION
individual capacity; GARWIN, individual capacity, )
ED GRAYBEAL, individual capacity; JASON           )
LOWE, individual capacity; CORRECTIONS            )
OFFICER MARTIN, individual capacity;              )
RICHARDS, individual capacity,                    )
                                                  )
       Defendants-Appellees.                      )
                                                  )

BEFORE: NORRIS, GIBBONS, and ROGERS, Circuit Judges.

       ALAN E. NORRIS, Circuit Judge. Stewart Peppers died while in custody at the

Washington County, Tennessee, jail awaiting trial. His parents sued the county, as well as the

sheriff and several corrections officers in both their individual and official capacities under

42 U.S.C. § 1983. After three years of pre-trial litigation, the district court granted summary

judgment as to all defendants. The plaintiffs argue that the district court abused its discretion

when it excluded the testimony of plaintiffs’ key witness and granted summary judgment in

favor of defendants. For the reasons that follow, we affirm the judgment of the district court.
                                                                Peppers v. Washington County, TN
                                                                                     No. 16-5407


                                                 I.

A. Factual Background

       Stewart Peppers was arrested shortly after 2:00 a.m. on April 26, 2013, in possession of a

handgun, more than forty grams of marijuana, and three hundred grams of Nandrolone

Decanoate, a steroid. He was suspected of carjacking a woman at gunpoint and aggravated

assault in which a man as severely beaten. Peppers was booked into Washington County

Detention Center (“WCDC”) shortly thereafter. Peppers was a large, muscular young man, and

arresting officers warned the detention officers that Peppers may have martial arts training and

that he may have been using synthetic drugs. Peppers behaved erratically from the start, acting

“in an arrogant and aggressive manner towards the correctional officers,” flexing his muscles,

and blowing kisses at the booking officers. He also refused to give his real name, calling himself

“Hercules,” “chosen one,” the “son of god,” or the “son of Zeus.”

       Peppers was placed in a cell by himself in the booking center. His erratic behavior

continued over the next two days, including tearing up his sleeping mat and uniform and yelling

obscenities. A social worker saw Peppers for a mental health consultation, reporting that,

“Peppers denied suicidal or homicidal thoughts or intentions at that time and did not exhibit

aggressive or threatening behavior at that time.” The conclusion was that Peppers did not meet

the criteria to be committed.

       A series of events ultimately leading to Peppers’s death began late in the afternoon on

April 29, 2013. Peppers started shouting obscenities at the detention staff. The plaintiffs claim

that in response to the shouting six corrections officers entered the cell, used chemical spray and

a Taser on Peppers, and beat him until he was unresponsive. While Peppers was unresponsive, he

purportedly was loaded into a restraint chair and beaten further, for a total of twenty minutes.

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                                                                                   No. 16-5407


       The defendants assert that their initial response to Peppers becoming agitated and

shouting obscenities was to try to calm him down from outside the cell. Only when Peppers

began slamming his head into the door of his cell did the officers feel they needed to intervene.

At that time, the officers entered the cell, but Peppers refused instructions and aggressively

approached the officers. The officers deployed chemical spray and a Taser in an effort to subdue

Peppers, but to little effect. Finally, after much struggle, the officers gained some control of

Peppers, placing him in restraints and into a restraint chair and using a “spit hood” to prevent

Peppers from spitting on the officers.

       The officers contend that Peppers continued to buck and fight officers as they attempted

to get him fully secured. But suddenly Peppers stopped resisting, made unusual respiratory

noises, and became unresponsive. The officers first tried to revive him with an ammonia stick

and a sternal rub technique. When that failed, he was taken out of the chair and treated with a

manual resuscitator and CPR until emergency personnel arrived and took over his care. Peppers,

however, died.

       The medical examiner conducted an autopsy and determined that his death was

accidental, caused by a condition called Excited Delirium, brought on by the misuse of

Nandrolone Decanoate (a steroid), exogenous testosterone, and acute cannabinoid. R. 34-1,

Cline-Parhamovich Aff., Ex. A, PageID 366. The plaintiffs’ expert witness reviewed the autopsy

result and averred that the actual cause of death was asphyxiation from the combination of

restraint chair and spit hood. R. 66-1, Dragovic Aff., PageID 619.

B. Procedural Background

       During the litigation, defendants filed a Motion for Summary Judgment as to all

individual defendants based on the doctrine of qualified immunity, asserting that they did not

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                                                                                     No. 16-5407


violate Peppers’s constitutional rights. The district court denied this motion, citing genuine issues

of material fact as to whether the individual corrections officers violated Peppers’s clearly

established rights. The district court noted that the affidavit of Shawn Dorsey, who was detained

in a nearby cell at WCDC at the time of Peppers’s death, was the plaintiffs’ only evidence. But

viewing the facts in the light most favorable to the plaintiffs for summary judgment purposes, the

affidavit contents had to be treated as true and therefore qualified immunity was not appropriate.

       The district court did grant summary judgment in favor of the county on the plaintiffs’

failure-to-train claim, noting that the county presented some evidence that use-of-force training

was provided, including use of the restraint chair, while the plaintiffs failed to offer any evidence

to suggest that the training was inadequate, let alone so inadequate as to rise to the level of

deliberate indifference.

       The admissibility of deposition testimony by the plaintiffs’ key witness, Shawn Dorsey,

is the focus of plaintiffs’ appeal. Plaintiffs hoped to have Dorsey, who was by then incarcerated

in a federal prison in West Virginia, testify at trial via live video conference. However, that

proved to be impracticable because the prison would not allow cameras into the facility. The

district court granted plaintiffs’ request to take Dorsey’s trial testimony by a recorded video

deposition instead. But at the last moment Dorsey refused to testify altogether.

       The plaintiffs moved the district court to designate Dorsey’s prior deposition testimony,

taken by defendants during discovery, for use as proof at trial. The defendants opposed the

motion, asserting that the deadline for designating depositions had passed and that the prior

deposition testimony was inadmissible under the federal rules against hearsay.

       The district court denied plaintiffs’ motion to designate Dorsey’s deposition testimony,

holding that while plaintiffs could show good cause for their late designation, the testimony

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                                                                                     No. 16-5407


constituted inadmissible hearsay under the federal rules of evidence. The district court reasoned

that the testimony was inadmissible, in large part, because the defendants did not get a full and

fair opportunity to cross-examine Dorsey about a recorded interview with plaintiffs’ counsel

played at his deposition where Dorsey admitted his desire to get revenge on the corrections

officers.

        The defendants moved the court to reconsider its denial of qualified immunity. Without

the Dorsey testimony, the district court reversed itself and granted the defendants’ motion for

summary judgment based on qualified immunity.

                                                II.

A. Deposition Testimony of Shawn Dorsey

        “Generally, a district court’s evidentiary rulings are reviewed for abuse of discretion.”

United States v. Churn, 800 F.3d 768, 774 (6th Cir. 2015) (quoting United States v. Chalmers,

554 F. App’x 440, 449 (6th Cir. 2014)). We review a grant of summary judgment de novo.

Griffin v. Finkbeiner, 689 F.3d 584, 592 (6th Cir. 2012).

        Deposition testimony from an unavailable witness may be used against a party, provided

that “the party was present or represented at the taking of the deposition” and “it is used to the

extent it would be admissible under the Federal Rules of Evidence if the deponent were present

and testifying.” Fed. R. Civ. P. 32(a)(1). Based on his refusal to testify, Dorsey qualifies as an

“unavailable” witness. See Fed. R. Civ. P. 32(a)(4)(B) & (C).

        The question whether Dorsey’s deposition testimony is admissible then turns on its

admissibility under the Federal Rules of Evidence. Hearsay means a statement that “(1) the

declarant does not make while testifying at the current trial or hearing; and (2) a party offers in

evidence to prove the truth of the matter asserted in the statement.” Fed. R. Evid. 801(c). Usually

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                                                                                    No. 16-5407


hearsay evidence is not admissible. Fed. R. Evid. 802. However, the rules of evidence provide

several hearsay exceptions for unavailable witnesses. See Fed. R. Evid. 804. The exception at

issue here is for “Former Testimony,” which provides that hearsay testimony may be admitted if

it “was given as a witness at a trial, hearing, or lawful deposition” and “is now offered against a

party who had . . . an opportunity and similar motive to develop it by direct, cross-, or redirect

examination.” Fed. R. Evid. 804(b)(1).

       The district court initially rejected defendants’ general contention that they did not have a

similar motive or opportunity to cross-examine Dorsey at the deposition because it was taken

during discovery. That did not end the district court’s analysis, however.

       At the beginning of defendants’ deposition of Dorsey, counsel for the plaintiffs played

part of a recording of Dorsey’s prior statements to refresh his recollection of events. A full copy

of the recording was given to defense counsel and admitted as an exhibit. On the full recording,

Dorsey can be heard saying, “I ain’t going to lie to you okay. I need to get my revenge heard.

They been doing me all wrong these years. It’s time for me to get one.”

       The district court noted that the defendants, through no fault of their own, did not hear the

statement until the deposition was over, and therefore never had a full and fair opportunity to

cross-examine Dorsey regarding the issue. The district court concluded that the defendants

would “suffer great prejudice by the use of deposition testimony, the reliability of which has

been directly called into question by the deponent’s own statements learned after the fact with no

other opportunity to develop this testimony or cross examine it due to the deponent’s refusal to

give subsequent testimony.” “It is the plaintiffs’ burden to offer admissible testimony to carry

their burden of proof, and this deposition testimony is inadmissible hearsay.”




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        The plaintiffs’ appellate brief does not directly address the recording discovered by

defendants after the deposition, despite it being relied upon by the district court as a key factor in

its decision to exclude the evidence. Further, plaintiffs elected not to file a reply brief even after

the defendants highlighted this argument in their response brief. The defendants contend that by

failing to offer any argument as to how the district court’s reasoning was an abuse of discretion,

the plaintiffs have forfeited this issue on appeal. Defendants’ argument is well-taken, but we will

nevertheless review the merits of the district court’s evidentiary ruling.

        The district court did not cite Federal Rule of Evidence 403 in its opinion and order, but

the court weighed the prejudice that would be suffered by defendants if the testimony were to be

admitted, much like the balancing district courts must undertake when applying Rule 403. See

Fed. R. Evid. 403 (“The court may exclude relevant evidence if its probative value is

substantially outweighed by a danger of . . . unfair prejudice . . . .”). On the other hand, it would

be an abuse of discretion for a district court to weigh witness credibility and exclude proffered

testimony on that basis. See, e.g., United States v. Schultz, 855 F.2d 1217, 1221 (6th Cir. 1988)

(“Witness credibility is solely within the province of the jury.”); Doe v. Clark Equip. Co.,

187 F.3d 635 (6th Cir. 1999) (table case) (holding the district court abused its discretion in

striking testimony based on witness credibility). In this case, if the district court was concerned

about Dorsey’s credibility, it had the option to admit his deposition testimony, and rely on

defendants’ ability to attack its credibility at trial. See Fed. R. Evid. 806 (“[T]he declarant’s

credibility may be attacked, and then supported, by any evidence that would be admissible for

those purposes if the declarant had testified as a witness . . . .”)

        However, as noted above, due to “a district court’s familiarity with the details of the case

and its greater experience in evidentiary matters, courts of appeals afford broad discretion to a

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                                                                                    No. 16-5407


district court’s evidentiary rulings.” Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 384

(2008). “Assessing the probative value of the proffered evidence, and weighing any factors

counseling against admissibility is a matter first for the district court’s sound judgment under

Rules 401 and 403.” Id. (quotation omitted). “This is particularly true with respect to Rule

403 . . . .” Id. For example, we have upheld a district court’s exclusion of otherwise relevant

testimony based on the prejudice to defendants because the witness was unavailable for full

cross-examination. See United States v. Meade, No. 15-5723, 2017 WL 384307, at *11 (6th Cir.

Jan. 26, 2017) (affirming district court exclusion of probative “statement without any cross-

examination to help the jury determine the strength of the statement and the credibility of the

witness [because it] has a great risk of misleading the jury and unfairly prejudicing” the other

party). “‘Broad discretion is given to district courts in determinations of admissibility based on

considerations of relevance and prejudice, and those decisions will not be lightly overruled.’” Id.

(quoting United States v. Dixon, 413 F.3d 540, 544 (6th Cir. 2005)).

       Here, the district court was confronted with a difficult choice, given Dorsey’s admission

that his statement was motivated, at least in part, by a desire to get revenge on the defendants,

and that defendants would have no ability to cross-examine Dorsey on this point. The district

court’s choice to exclude Dorsey’s prior testimony was within the court’s discretion. Finally,

without the deposition testimony, the district court’s grant of summary judgment was

appropriate.

B. Grant of Summary Judgment to Washington County

       In addition to appealing the district court’s evidentiary ruling, the plaintiffs contend that

the district court erred when it granted summary judgment in favor of Washington County. The

plaintiffs’ arguments below included general allegations that Peppers’s death was based, at least

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                                                                                   No. 16-5407


in part, on the failure of Washington County to properly train the involved corrections officers

involved. However, the record does contain evidence that the officers received some use-of-force

training, and the plaintiffs do not make any argument that the training received was deficient, or

that inadequate training caused Peppers’s death. For that reason, the district court’s grant of

summary judgment in favor of Washington County was proper.

                                               III.

       The judgment of the district court is affirmed.




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