Bushong v. Monroe County, Tennessee et al

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
MARK ANTHONY BUSHONG,
Plaintiff,
v.
MONROE COUNTY, TENNESSEE,
JAKE KEENER, and JOHN/JANE
DOES 1-20,
Defendants.
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No. 	3:26-CV-443-TAV-JEM
MEMORANDUM OPINION AND ORDER
Proceeding pro se, Plaintiff has filed (1) a motion for leave to proceed in forma
pauperis [Doc. 1]; (2) a complaint under 42 U.S.C. § 1983 [Doc. 2]; (3) an emergency
motion for “an expedited records preservation injunction and litigation hold” [Doc. 3]; and
(4) a “First Amended Complaint and Supplemental Factual Allegations” [Doc. 6]. For the
reasons set forth below, the Court will GRANT Plaintiff’s motion for leave to proceed in
forma pauperis [Docs. 1], DENY Plaintiff’s motion for preservation of records [Doc. 3],
and ORDER Plaintiff to file a single, comprehensive amended complaint.
I. 	MOTION TO PROCEED IN FORMA PAUPERIS
Under 28 U.S.C. § 1915, the Court may generally “authorize the commencement,
prosecution or defense of any suit, action or proceeding, civil or criminal, or appeal therein,
without prepayment of fees or security therefor, by a person who submits an affidavit that
includes a statement of all assets such prisoner possesses that the person is unable to pay
such fees or give security therefor.” 28 U.S.C. § 1915(a)(1). Although the relevant statute
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specifically references the “assets such prisoner possesses,” the Sixth Circuit has construed
the statute to extend to non-prisoners who apply to proceed in forma pauperis. See Floyd
v. U.S. Postal Serv., 105 F.3d 274, 275–76 (6th Cir. 1997), superseded by rule on other
grounds as stated in Callihan v. Schneider, 178 F.3d 800 (6th Cir. 1999). When assessing
whether to permit an individual to proceed without paying the filing fee, the Court is not
concerned with whether the applicant is destitute, but rather, “whether the court costs can
be paid without undue hardship.” 	Foster v. Cuyahoga Dep’t of Health & Human Servs.,
21 F. App’x 239, 240 (6th Cir. 2001). 	The Court considers all the resources potentially
available to the applicant, including those of a spouse or other family members. 	See
Ciavarella v. Comm’r of Soc. Sec., No. 5:13-CV-2031, 2013 WL 5354091, at *1 (N.D.
Ohio Sept. 24, 2013) (citation omitted).
It appears from the documentation provided that Plaintiff cannot bear the filing fee
without undue hardship. Accordingly, the Court will GRANT Plaintiff’s motion [Doc. 1]
for leave to proceed in forma pauperis.
II. 	PLAINTIFF’S EMERGENCY MOTION FOR INJUNCTIVE RELIEF
Plaintiff seeks an “[e]mergency [i]njunction and mandatory [l]itigation [h]old
ordering Defendant Monroe County, Tennessee, its operational agents, and contracted
third-party technology and medical vendors to permanently preserve all electronic records,
audit 	logs, 	metadata, 	and 	audio 	recordings 	associated 	with 	Plaintiff’s 	6.5-month
confinement from November to May” [Doc. 3, p. 1]. In support of this motion, Plaintiff
states he “personally drop-served Evidence Preservation notices directly” on Monroe
County’s counsel and the Monroe County Department of Finance, “securing wet-ink
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signatures and stamps on the record” [Id. at 2], and that judicial intervention is required to
halt automated recycling schedules on the County’s internal server that will otherwise
delete or overwrite the “core electronic metadata required to identify individual staff
members and prove the scope of the cover-up as the case heads toward the formal statutory
tracking deadline on or around November 10th” [Id.].
Plaintiff seeks an unnecessary order. Every litigant has a duty to preserve evidence
when that party knows or should have known that the evidence may be relevant to pending
or future litigation. John B. v. Goetz, 531 F.3d 448, 459 (6th Cir. 2008). A party’s failure
to preserve relevant evidence can lead to sanctions for spoliation. See Beaven v. U.S. Dep’t
of Just., 622 F.3d 540, 553 (6th Cir. 2010). And because the law imposes on Defendants
a duty to preserve the evidence relevant to this case, there is no need for a court order
requiring them to do so. 	Accordingly, Plaintiff’s motion [Doc. 3] will be DENIED as
unnecessary.
III. 	REVIEW OF COMPLAINTS
Because Plaintiff is proceeding in forma pauperis, this Court must screen his
complaints and sua sponte dismiss any claims that are frivolous or malicious, fail to state
a claim for relief, or are against a defendant who is immune. 	See, e.g., 28 U.S.C. §§
1915(e)(2)(B); Hill v. Lappin, 630 F.3d 468, 470 (6th Cir. 2010) (“Because Hill’s lawsuit
seeks redress from governmental officers, and because Hill proceeded in forma pauperis,
the district court screened Hill’s complaint as required by 28 U.S.C. §§ 1915A and
1915(e)(2)(B)).”).
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The Court is unable to conduct the statutorily mandated screening at this time,
however, because approximately two weeks after Plaintiff submitted his initial complaint
[Doc. 2], he filed an amended complaint [Doc. 6]. 	Ordinarily, an amended complaint
supersedes the original complaint. See In re Refrigerant Compressors Antitrust Litig., 731
F.3d 586, 589 (6th Cir. 2013) (“An amended complaint supersedes an earlier complaint for
all purposes.”) (citation omitted). But in this case, the amended complaint does not contain
all the allegations contained in Plaintiff’s initial complaint, and the amended complaint
only contains specific factual allegations against one Defendant, Jake Keener [Compare
Doc. 2 with Doc. 6].
This Court’s Local Rules require a party seeking to amend a pleading to file a
complete proposed amended pleading. 	See E.D. Tenn. L.R. 15.1 (providing in relevant
part that “[a]ny amendment to a pleading, whether filed as a matter of course or upon a
motion to amend, shall, except by leave of Court, reproduce the entire pleading as amended
and may not incorporate any prior pleading by reference. 	A failure to comply with this
rule may be grounds for denial of the motion”). And, unless Plaintiff intends to abandon
any claims and/or Defendants not specified in his amended complaint, it does not comply
with the Court’s Local Rules. To Plaintiff’s benefit, the Court presumes Plaintiff does not
intend to abandon any claims he asserted in his initial complaint. 	Therefore, he is
ORDERED to file an amended complaint within 14 days of entry of this Order that
contains a plain, short statement of all his claims supported by specific factual detail, the
parties responsible, the injuries suffered, and his requested relief. 	Plaintiff must avoid
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conclusory legal statements or arguments in this amended complaint. 	The Court will
DIRECT the Clerk to mail Plaintiff a § 1983 form for this purpose.
The Court NOTIFIES Plaintiff that it will only address the merits of Plaintiff’s
claims that relate to his original pleadings. Accordingly, Plaintiff SHALL NOT attempt
to set forth in this amended complaint any additional claims, and he is advised that the
Court will DISMISS any such claims. 	Further, the Court NOTIFIES Plaintiff that this
amended complaint will be the sole operative complaint that the Court considers, and
therefore, it must be complete in and of itself and must not refer to any previously filed
allegations or pleadings.
Plaintiff is CAUTIONED that if he does not file an amended complaint by the
deadline, the Court will DISMISS this action for failure to prosecute and comply with an
order of the Court.
The Court NOTIFIES Plaintiff that it WILL NOT consider any other kind of
motion for relief until after the Court has screened the newly amended complaint pursuant
to the PLRA, which the Court will do as soon as practicable. Accordingly, the Court will
automatically deny any motions filed before the Court has completed this screening.
IV. 	CONCLUSION
For the reasons set forth above:
1. 	Plaintiff’s motion for leave to proceed in forma pauperis [Doc. 1] is
GRANTED;
2. 	Plaintiff’s emergency motion [Doc. 3] is DENIED;
3. 	The Clerk is DIRECTED to forward Plaintiff a § 1983 form;
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4. 	Plaintiff is ORDERED to complete the § 1983 form within fourteen (14)
days in accordance with the directives stated above;
5. 	Plaintiff is NOTIFIED that failure to comply with this Order will result in
the dismissal of this action; and
6. 	Plaintiff is ORDERED to immediately inform the Court of any address
changes in writing. Pursuant to Local Rule 83.13, it is the duty of a pro se
party to promptly notify the Clerk and the other parties to the proceedings of
any change in his address, to monitor the progress of the case, and to
prosecute or defend the action diligently. E.D. Tenn. L.R. 83.13. Failure to
provide a correct address to this Court within fourteen (14) days of any
change in address may result in the dismissal of this action.
IT IS SO ORDERED.
s/ Thomas A. Varlan
UNITED STATES DISTRICT JUDGE
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