Nature of the Case
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Facts
A State Trooper found P in the hospital emergency room, appearing to be drunk. P was prohibited from consuming alcohol in connection with a previous infraction, so the Trooper arrested him. P's blood alcohol content was at least .3 percent. P was belligerent, verbally threatened the officer and even spat on the officer. The Trooper delivered P to jail where P was taken to the nurse’s station. P was determined to be a suicide risk, and Ds put him into an anti-suicide smock. P was moved to a holding cell. Ds began monitoring at successive fifteen-minute intervals. P then lay down and went to sleep. A little after 10 p.m., an officer saw P 'banging around' his cell naked; she also noticed blood on the bridge of his nose. While the officers were deciding on a course of action, they both heard a loud 'thump' or 'thud' from inside P's cell. Officers in the control room, saw P fall to the floor in a leftward motion. P struck his head as he fell against the left hand concrete wall of his cell. P was lying on the floor in his own urine and had two seizures, each lasting a matter of seconds. P was taken to the hospital. P remembers next to nothing about his jail stay. P relies on deposition testimony and affidavits from two other witnesses to contradict Ds' version of events. According to the Trooper, he spent roughly an hour in the booking room and when he exited P appeared to be unaccompanied and was wearing civilian clothes. Foster Kane, a detainee in a cell near the booking room, 'heard yelling and screaming and loud thuds of someone hitting a wall.' This went on for approximately 45 minutes before he saw the correctional officers dragging P into Kane's cell block.' P had two black eyes, a cut on his nose, and a cut on his forehead over his right eye. Jenny Sheriff, the emergency medical technician, noticed dried blood on P's nose, and was 'certain that I did not receive the call to respond to the Jail immediately after the injuries occurred.' She also stated that P was naked and that there was 'no robe or suicide smock in his cell.' P brought a civil rights action against Ds on a number of grounds. P's initial disclosure identified fourteen individuals likely to have discoverable information, but it did not identify either Kane or Sheriff. Discovery proceeded for several months. Ds moved for summary judgment. Two days after response was due and over two months after discovery had closed, P's attorney sent Ds a 'supplemental' initial disclosure that identified Kane and Sheriff as two additional individuals likely to have discoverable information. Ds requested that the magistrate judge strike these affidavits as a sanction pursuant under rule 37(c)(1). P's attorney had not retained the investigator until January 5, 2009, ten days before Ds' summary judgment and more than a month after the close of discovery. The judge precluded the affidavits and gave Ds summary judgment. P appealed.
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