Bennie Joe Poteet, Ii; Evelyn Poteet v. District of Tennessee Polk County, Tennessee

The Honorable Dan Aaron Polster, United States District Judge for the Northern District*
of Ohio, sitting by designation.
While in the county jail, Poteet allegedly suffered unnecessary force and other1
constitutional violations at the hands of his custodians. These allegations are addressed in
federal § 1983 and § 1988 claims that have been fully settled and are not the subject of the
instant appeal.
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 08a0151n.06
Filed: March 17, 2008
NO. 07-5678
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
BENNIE JOE POTEET, II; )
EVELYN POTEET, )
)
Plaintiffs-Appellants, ) APPEAL FROM THE DISTRICT
) COURT FOR THE EASTERN
v. ) DISTRICT OF TENNESSEE
)
POLK COUNTY, TENNESSEE, et al., ))
)
Defendants-Appellees. )
BEFORE: DAUGHTREY and SUTTON, Circuit Judges; and POLSTER, District Judge.*
Dan Aaron Polster, District Judge.
I. INTRODUCTION
This appeal is but one part of a much larger case in which Plaintiff Bennie Poteet
entered the Polk County, Tennessee jail on a charge of driving under the influence of alcohol, but
emerged from the Cleveland Community Hospital several days later having suffered a stroke that
left him permanently paralyzed. The underlying factual background in this case takes second chair1
to the facts surrounding discovery, missed deadlines, and the district court’s rulings on a motion for

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Poteet was under Dr. Fall’s care while he was at CCH.2
CCH did not move for summary judgment on the claim that CCH is vicariously liable for3
the negligence of its employee, Dr. Fall.
2
partial summary judgment, a motion for extension of time to respond to that motion, and a motion
to amend, reconsider, or set aside the grant of partial summary judgment in CCH’s favor.
II. BACKGROUND
A. Factual Background
The underlying facts are, in summation, that Poteet suffered a seizure while still in
the jail, at which point he was transferred to Defendant Cleveland Community Hospital (“CCH”),
also located in Polk County, Tennessee. Poteet, as part of his larger suit alleging federal claims
against other defendants, also alleged that he suffered permanent injuries due to his inadequate
treatment at CCH. Poteet brought claims for medical malpractice against Dr. Adam Fall, and for2
negligence, on a few different theories, against CCH. The instant appeal involves some of these
allegations of medical malpractice and negligence arising under Tennessee law.
B. Procedural Background
On February 12, 2007, pursuant to a deadline established in the scheduling order,
CCH moved for partial summary judgment on some – but not all – of the state law medical3
malpractice and negligence claims. In accordance with Tennessee law governing medical
malpractice claims, CCH supported its motion for partial summary judgment with affidavits from
two expert witnesses, Dawn Haynes, R.N., and John Hyde, Ph.D. CCH’s counsel did not, as he
conceded at oral arguments, comply with Federal Rule of Civil Procedure 56(e) by attaching sworn
copies of the documents Haynes and Hyde reviewed and cited in their respective affidavits.

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Dr. Farber is a Chattanooga, Tennessee-based neurologist who examined Poteet during4
his hospitalization at CCH.
3
On March 5, 2007, the deadline for filing the response brief, Poteet filed the following
three documents: (1) a Rule 56(f) motion for an extension of time to respond, in which Poteet
explained that he needed additional time for discovery to be able to more fully respond to CCH’s
motion for partial summary judgment; (2) his brief in response to CCH’s motion for partial summary
judgment, supported by excerpts of deposition testimony from Dr. Salzman (Poteet’s expert witness),
Dr. Fall, and Dr. Sharon Farber, as well as Dr. Salzman’s affidavit which was previously filed in4
opposition to Dr. Fall’s motion for summary judgment; and (3) a motion to strike the Haynes and
Hyde affidavits as insufficient under Rule 56(e).
On the same day, CCH’s counsel agreed to make a Rule 30(b)(6) corporate
representative available for deposition on March 7, 2007 – two days after Poteet’s responsive
deadline. Poteet deposed CCH’s Rule 30(b)(6) representative, Susan Lewis, on March 7, 2007.
Although the district court denied Poteet’s Rule 56(f) motion on March 8, 2007, additional discovery
was taken by agreement of counsel (and submitted) after the March 5 deadline and the court’s March
8 order.
On March 9, 2007, Poteet filed a motion to alter or amend the court’s denial of the
Rule 56(f) motion. The court denied the motion in an order dated March 14, 2007. Also on March
14, CCH manually filed supplemental affidavits from Haynes and Hyde that were in compliance
with Rule 56(e), by virtue of having attached certified copies of the documents Haynes and Hyde
consulted and referenced in their affidavits. These affidavits purportedly replaced or amended the
affidavits filed on the February 12, 2007 dispositive motions deadline. For his part, Poteet filed what

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From what we can gather, Poteet deposed Nurse Haynes on April 10, 2007. (See J.A. at5
350.) It is unclear exactly when Poteet deposed Dr. Hyde, though logic dictates that the Hyde
deposition took place after March 7, 2007.
4
we will term his “after-acquired evidence” on March 13, 2007, March 22, 2007, and April 5, 2007.
Poteet also deposed CCH’s expert witnesses at some point after March 5.5
On April 11, 2007, the district court denied Poteet’s motion to strike, and granted
CCH’s motion for partial summary judgment. In doing so, the district court purported to rely only
on the evidence contained in the record as of the March 5, 2007 response deadline, although the
court also considered the later-filed (i.e. procedurally sufficient) Haynes and Hyde affidavits. The
district court refused to consider any of Poteet’s after-acquired evidence; in a lengthy footnote at the
start of its order granting partial summary judgment, the court asserted that it would “not consider
any briefs or evidence filed after the applicable deadline, March 5, 2007.” (J.A. at 79.)
Poteet soon thereafter filed a motion under Rule 59(e) or Rule 60(b) to reconsider,
alter, or amend the order granting partial summary judgment, along with a 25-page brief in support.
The district court denied the motion in an order dated April 26, 2007. On the same day, the district
court entered an order declining to exercise discretionary supplemental jurisdiction over the
“remaining state law claims,” and dismissing those claims without prejudice. (See J.A. at 115.)
The court’s order denying Poteet’s Rule 59(e)/Rule 60(b) motion contains the
following footnote: “Plaintiff also notes the parties have recently settled all federal claims, and only
state law claims remain for trial. Plaintiff argues that if the Court chooses not to exercise its
discretionary supplemental jurisdiction over the remaining state law claims, it should vacate its
previous order [granting partial summary judgment]. This argument has no merit as the state court
may reconsider any rulings of this Court.” (J.A. at 111 (emphasis added).)

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5
Poteet timely appealed, arguing that the district court erred by denying his Rule 56(f)
motion, by granting partial summary judgment, and by denying his Rule 59(e)/Rule 60(b) motion.
III. ANALYSIS
Most of the parties’ briefs focus on the district court’s decision not to consider
Poteet’s after-acquired evidence. We learned at oral argument, however, that all of the state law
claims originally alleged in the instant case have been refiled in Tennessee state court. According
to counsel, the case is going forward to trial in approximately two months. We also learned that the
state court judge rejected CCH’s argument that the district court’s partial summary judgment
decision should have collateral estoppel effect, and consequently the trial will include all of Poteet’s
claims against CCH.
It seems likely that the state court judge correctly interpreted the district judge’s April
26, 2007 order. It also seems likely that by stating “the state court may reconsider any rulings of this
Court,” the district court meant to vacate its prior orders and send all of Poteet’s state claims to state
court, not just the claims against Dr. Fall and against CCH for vicarious negligence. Out of
deference to the district court, however, we are remanding the case. If we are correct in our
assumption, then the district court should do explicitly what we believe it did tacitly, and vacate its
previous order granting CCH’s motion for partial summary judgment.
IV. CONCLUSION
For the reasons stated above, we hereby REMAND this case to the district court.

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