Robert McKinney, et al v. Lexington-Fayette Urban Cnty, et al

Filing

OPINION filed : The judgment of the district court denying summary judgment to Jones, Elko, Legear, Moss, and Womack is AFFIRMED. The judgment of the district court denying summary judgment to Arnold and Powell is REVERSED, decision not for publication. Danny J. Boggs, Circuit Judge; John M. Rogers, (Authoring) Circuit Judge and Terrence George Berg, U.S. District Judge for the Eastern District of Michigan, sitting by designation.

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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 16a0310n.06
No. 15-5744

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
ROBERT M. MCKINNEY, in his capacity as
Personal Representative of the Estate of Jeffrey M.
McKinney; SHERRI MCKINNEY, in her capacity as
Next Friend Z.M.; RACHEL MCKINNEY, in her
capacity as Next Friend J.M. and Next Friend C.M.,
Plaintiffs-Appellees,
v.
LEXINGTON-FAYETTE URBAN COUNTY
GOVERNMENT,
Defendant,
LIEUTENANT RANDY JONES, in his individual
capacity; SERGEANT NICHOLAS ELKO, in his
individual capacity; SERGEANT ADAM MOSS, in
his individual capacity; CORPORAL ERIC
LEGEAR, in his individual capacity; CORPORAL
CLARRISA ARNOLD, in her individual capacity;
OFFICER REGINA POWELL; in her individual
capacity; OFFICER DONALD WOMACK, in his
individual capacity,
Defendants-Appellants.

BEFORE:

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FILED
Jun 09, 2016
DEBORAH S. HUNT, Clerk

ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE EASTERN
DISTRICT OF KENTUCKY

BOGGS and ROGERS, Circuit Judges; BERG, District Judge.

ROGERS, Circuit Judge. On May 21, 2012, Jeffrey McKinney was incarcerated at the
Fayette County Detention Center in Lexington, Kentucky.


While McKinney was in the

The Honorable Terrence G. Berg, United States District Judge for the Eastern District of Michigan, sitting by
designation.

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detention center, he suffered a seizure and Fayette County Detention Center Lieutenant Randy
Jones, Sergeants Nicholas Elko and Adam Moss, Corporals Clarissa Arnold and Eric Legear, and
Officers Regina Powell and Donald Womack1 responded, using force to restrain and subdue
McKinney. McKinney was ultimately taken to a medical center, where he was pronounced dead.
The McKinney Estate2 brought a 42 U.S.C. § 1983 action against the correctional officers,
alleging that they had violated McKinney’s rights under the Eighth Amendment by acting with
deliberate indifference to his medical needs and by using excessive force against him. The
McKinney Estate also alleged related state-law tort claims. The district court denied the officers’
motion for summary judgment on the federal claims on the basis of qualified immunity and on
the state-law claims on the basis of qualified official immunity.
On interlocutory appeal, the officers contend that there is insufficient evidence in the
record for a reasonable juror to conclude that each officer met the subjective components of
deliberate indifference and excessive force.

Because this argument is premised upon the

officers’ challenge to the district court’s conclusion that genuine issues of material fact precluded
summary judgment on the basis of qualified immunity, we lack jurisdiction at this stage of the
litigation to consider this aspect of the officers’ appeal.
The officers also raise an abstract legal issue, which is that the district court refused to
conduct an individualized assessment of each officer’s qualified-immunity defense until further
evidence had been presented at trial. The district court conducted a sufficiently individualized

1

For simplicity, we will refer to all correctional officers, despite their rank, as “correctional officers” or “officers.”

2

The plaintiffs in this case are Robert M. McKinney, in his capacity as Personal Representative of the Estate of
Jeffery M. McKinney; Sherri McKinney, in her capacity as Next Friend of Z.M., a minor child of Jeffrey McKinney;
and Rachel McKinney, in her capacity as Next Friend of C.M. and J.M., minor children of Jeffrey McKinney. R.
144 at PageID #2016. We will refer to the plaintiffs collectively as the “McKinney Estate.”

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assessment of each officer’s qualified-immunity defense. This argument therefore does not
provide a basis for relief.
The resolution of the officers’ state-law qualified-official-immunity claims depends on
the same issues of fact as their federal qualified-immunity claims. Accordingly, we also lack
jurisdiction to review the district court’s denial of summary judgment on the McKinney Estate’s
state-law claims.
I.
On May 17, 2012, Jeffrey McKinney pled guilty to a second offense of operating a motor
vehicle while impaired and received a fourteen-day sentence of imprisonment. R. 178-3 at
PageID #2473–2474. McKinney reported to the Fayette County Detention Center (FCDC) that
same day. R. 178-4 at PageID #2476. During his intake, McKinney told a nurse that he suffered
from seizures, hypertension, and a traumatic brain injury and skull fracture from an ATV
accident. Id.; R. 191-3 at PageID #5172–5175. On May 22, 2012, McKinney had a seizure at
12:49 pm while he was taking a shower. R. 178-11 at PageID #2502; R. 178-12 at PageID
#2504. Medical staff and officers gave McKinney medical assistance and relocated him to
FCDC’s Medical Unit, Unit A. R. 178-11 at PageID #2502; R. 191-3 at PageID #5186.
Later that day, McKinney had a seizure while he was in Room A-9. R. 178-14 at PageID
#2520–2521. Room A-9 is a room in FCDC’s Medical Unit that contains eight or nine beds and
is adjacent to the main open-area “program space” of the Medical Unit. R. 182-4 at PageID
#3695; Overhead Video at 0:20–0:30. Upon the direction of a nurse, Officer Joquetta Wingate3
toned a Code 100 on FCDC’s radio at approximately 6:19 pm.

R. 178-14 at PageID

#2520−2521. A Code 100 is toned when an inmate is in an emergency physical condition

3

Joquetta Wingate is formally Joquetta Leach-McCord. R. 76-12 at PageID #757.

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requiring possible medical care. R. 179-2 at PageID #2766; R. 191-6 at PageID #5242–5244.
Corporal Legear and Wingate went into Room A-9 in response to the Code 100 and saw
McKinney lying partially on a bunk and partially on the floor. R. 178-14 at PageID #2521, R.
178-15 at PageID #2526. Legear observed that McKinney was “displaying seizure activity,” had
blood dripping out of his mouth, and that there was blood on the floor. R. 178-15 at PageID
#2526; R. 191-8 at PageID #5266. After Legear and Wingate put McKinney on his side on the
floor, R. 191-7 at PageID #5251; R. 178-14 at PageID #2521, a nurse entered Room A-9 and
started wiping bloody secretions from McKinney’s mouth. R. 214-1 at PageID #6561–6563.
McKinney then spat some blood out of his mouth. Id. at PageID #6563; R. 212-1 at
PageID #6347. By this time, Jones, Elko, and Moss had entered Room A-9 in response to the
Code 100. R. 178-32 at PageID #2664; R. 178-33 at PageID #2668; R. 178-34 at PageID #2671.
After McKinney spat, Legear decided that McKinney needed to be restrained. R. 191-8 at
PageID #5271. Officers tried to roll McKinney onto his stomach. R. 212-1 at PageID #6347.
McKinney was highly erratic and defensively resistant. Id. As officers rolled McKinney onto
his stomach, he vomited onto the floor. R. 178-32 at PageID #2664.
Jones testified that at this time, all of the officers in Room A-9 were going “hands on”
trying to subdue McKinney, who was kicking, thrashing, and spitting blood. R. 76-20 at PageID
#875. The officers who assisted in restraining McKinney included Jones, Elko, Moss, Arnold,
Legear, and Powell. R. 178-36 at PageID #2675. Jones, Moss, and Wingate each unsuccessfully
tried to perform pressure-point control techniques on McKinney to make him stop resisting. R.
178-22 at PageID #2602–2603; R. 76-20 at PageID #876; R. 178-33 at PageID #2668. A
pressure-point control technique is a type of force that is used to make an inmate feel pain so that
he will comply with officers’ orders. R. 212-1 at PageID #6348. Elko told McKinney to stop

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resisting and to put his hands behind his back or Elko would use pepper spray on McKinney. R.
98-12 at PageID #1234–1235.

After McKinney failed to comply with these orders, Elko

administered a one- to two-second burst of pepper spray to McKinney’s facial area. Id. at
PageID #1235.
Wingate then successfully used a pressure-point control technique to subdue McKinney,
and officers put handcuffs and shackles on him. R. 178-14 at PageID #2521–2522; R. 76-20 at
PageID #877. Once McKinney was secured in mechanical restraints, Wingate was able to put a
spit hood on McKinney. R. 178-22 at PageID #2604–2605. A spit hood is a hood that is made
of mesh and filtration fabric. R. 194-1 at PageID #5860. The filtration fabric is intended to
cover the lower half of the inmate’s face to contain contaminants and to deter biting and spitting.
Id.
At 6:23 p.m., while the officers were trying to restrain McKinney, a Signal 7 was toned.
R. 178-36 at PageID #2675. A Signal 7 means that an officer needs assistance with an inmate
disturbance. R. 194-1 at PageID #5822–5823. Officer Womack went to Room A-9 in response
to the Signal 7. R. 178-26 at PageID #2632. Womack testified that he went into the doorway of
Room A-9, where he felt the effect of the pepper spray and saw officers trying to restrain
McKinney. Id. at PageID #2632–2633.
A stationary overhead video that depicts the events that occurred in Room A-9 and the
adjacent program space (the “Overhead Video”) shows that the physical struggle that occurred
when McKinney was in Room A-9 lasted for several minutes and included numerous officers.
Overhead Video at 2:25–7:08; R. 98-10; R. 105. Nurses were present in Room A-9 during some
portions of the physical struggle. Overhead Video at 2:25–7:08. Medical staff in the program
space also observed McKinney through windows that provided a view into Room A-9. Id.

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After McKinney was put in handcuffs and shackled, officers put him on a bunk in Room
A-9 so that the medical staff could decontaminate the pepper-spray residue. R. 178-33 at PageID
#2668; R. 178-32 at PageID #2664.

Jones determined that McKinney “continu[ed] to be

unstable” and should be taken to the program space “where [a] medical assessment and
decontamination could be completed.” Id. Several officers escorted McKinney out of Room A9 and into the program space. Overhead Video at 8:32–9:12. Once McKinney was in the
program space, officers tried to seat him on a plastic chair. Id. at 9:12–10:30. McKinney
resisted the officers’ efforts to put him in the plastic chair by “thrusting his body around out of
the chair.” Id.; R. 98-12 at PageID #1243.
Jones determined that McKinney should be secured in a restraint chair. R. 178-32 at
PageID #2664. A restraint chair is a chair that is used to restrain a violent, out-of-control inmate.
R. 194-1 at PageID #5861. The chair holds the inmate’s torso upright and includes many straps
and belts to secure the inmate in the chair. Id.; R. 76-20 at PageID #881. Womack obtained the
restraint chair and assisted Jones, Elko, Moss, Legear, and other officers in securing McKinney
in the chair. R. 178-32 at PageID #2664; R. 178-38 at PageID #2681. McKinney struggled with
the officers as they attempted to put him in the restraint chair. Overhead Video at 10:30–11:00.
During this struggle, Jones and Legear gave McKinney verbal commands to stop resisting, and
Legear used a pressure-point control technique in an attempt to gain McKinney’s compliance. R.
178-38 at PageID #2681.
While the officers were securing McKinney in the restraint chair, Powell obtained a
handheld video camera so that she could record the incident. R. 178-35 at PageID #2673.
Powell started recording soon after McKinney was secured in the restraint chair. Overhead
Video at 14:11–14:15. Powell’s video recording (the “Handheld Video”) shows that when

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McKinney was in the restraint chair, he repeatedly bobbed his head, grunted, and said “okay.”
Handheld Video at 0:00–1:00. An officer then described the incident that had occurred in Room
A-9: “Legear was in there trying to help [McKinney]. He was down because he had a seizure
and he starts spitting on the nurse.” Id. at 1:05–1:12.
Although McKinney was secured in the restraint chair, he continued to show signs of
agitation, repeatedly yelling in pain, convulsing his entire body, rocking his head back and forth,
spitting into his spit hood, and saying “oh fuck.” Id. at 1:15–3:40. The spit hood contained
multi-colored liquids, and McKinney’s face and neck were flushed. Id. Jones and Legear held
McKinney’s head and shoulders as he sat secured in the restraint chair. Id.; R. 76-20 at PageID
#881; R. 178-15 at PageID #2526. Jones and Legear tried to reassure McKinney, telling him
“We know it hurts” and asking him to calm down. Handheld Video at 1:15–3:40.
While McKinney was confined in the restraint chair, officers and medical staff stood and
walked around within a few feet of McKinney. Overhead Video at 10:30–23:15. The medical
staff did not tell the officers that McKinney was in danger or that their actions were medically
contraindicated. Handheld Video at 0:00–8:30. However, no officer or nurse conducted a
hands-on medical assessment of McKinney while he was in the restraint chair. Id.; Overhead
Video at 10:30–23:15; R. 214-1 at PageID #6572, #6574.
The only medical treatment that McKinney received when he was in the program space
was an injection of Ativan. R. 214-1 at PageID #6572–6574. Ativan is a drug that nurses at the
FCDC give to inmates who have suffered from seizures in order to calm the inmates down and to
help prevent the inmates from having additional seizures. Id. at PageID #6574. A nurse
administered the injection of Ativan to McKinney and told Jones that it should take effect within
10 to 15 minutes. Id. at PageID #6574; R. 76-20 at PageID #882; Handheld Video at 3:36–4:00.

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After receiving the shot, McKinney repeatedly stated “please” and “help.” Id. at 3:50–5:05.
About a minute after getting the shot, McKinney stopped convulsing his entire body and yelling,
but continued rocking his head back and forth and from side to side and repeating “okay.” Id. at
5:05–7:08. He then became more lethargic, ceasing to say “okay” but continuing to rock his
head. Id. at 7:08–8:30. At approximately 6:40 pm, Jones directed Elko to clear the Code 100
and Signal 7. R. 178-32 at PageID #2664.
Officers then wheeled McKinney in the restraint chair from the program space to Room
A-1, a small room in the Medical Unit. Handheld Video at 8:30–9:10; R. 178-38 at PageID
#2681. Jones, Elko, Moss, Legear, and Womack entered Room A-1. R. 178-32 at PageID
#2664–2665; R. 178-15 at PageID #2526. Jones told McKinney that the officers were going to
remove him from the restraint chair and put him into a boat. Handheld Video at 9:10–9:50; R.
76-20 at PageID #883, #906. A “boat” is a term that the FCDC staff use to describe a bunk-bed
that is located on the floor. R. 178-22 at PageID #2606. McKinney repeated “okay.” Handheld
Video at 9:50–10:20. The officers began the process of removing the straps from the restraint
chair and the shackles from McKinney’s feet. Id. at 10:00–11:30; R. 178-15 at PageID #2526;
R. 178-32 at PageID #2665. Although the McKinney Estate contends that Legear remained in
Room A-1 during the entire time that McKinney lay in the boat, Appellees’ Br. at 10–11, the
Handheld and Overhead Videos show that Legear left Room A-1 at this time because his gloves
broke. Handheld Video at 11:10–11:16; Overhead Video at 25:28–25:35; R. 178-15 at PageID
#2526.
Jones, Elko, Moss, and Womack lifted McKinney out of the restraint chair. Handheld
Video at 11:30–11:50; R. 178-32 at PageID #2665. As these officers held McKinney over the
boat, several officers told McKinney to get on his knees. Handheld Video at 11:50–12:00.

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Although the officers contend that they did not strike McKinney with their knees at this point,
Appellants’ Br. at 19, the Handheld Video shows that at least one officer may have used his knee
to force McKinney into the boat. Handheld Video at 11:50–12:05.
The officers contend that they placed McKinney in the boat on his side in a recovery
position, but for the purpose of this appeal we accept the McKinney Estate’s allegation that they
placed McKinney in a face-down, prone position on his stomach. Handheld Video at 12:05–
13:40; Appellants’ Br. at 19–20. It is clear that for much of this period he was face-down. As
McKinney lay in the boat with his hands handcuffed behind his back, two officers held
McKinney in the boat by keeping their hands and knees on his back. Handheld Video at 12:05–
13:40.
Jones directed a nurse to administer a saline solution to McKinney so that Jones could
decontaminate the pepper-spray residue on McKinney’s facial area. Handheld Video at 12:42–
12:52; R. 76-20 at PageID #885, #900. Jones took off McKinney’s spit hood and observed that
he had vomit residue on his face. R. 76-20 at PageID #900. With the assistance of a nurse,
Jones decontaminated the pepper-spray residue from McKinney’s face. Id. at PageID #885;
Handheld Video at 12:52–13:38.

Jones also removed some of the residue of vomit from

McKinney’s face and did a preliminary finger sweep of his mouth. R. 76-20 at PageID #900.
After observing that McKinney was non-responsive, officers realized that he appeared to
have stopped breathing. Handheld Video at 13:50–16:30. Officers yelled for McKinney to be
rolled over and called for nurses. Id. at 16:20–16:30. An officer then requested a Code 101 at
approximately 6:50 pm. Id. at 16:40; R. 178-14 at PageID #2522. A Code 101 is toned when an
inmate has no apparent pulse or respiration. R. 194-1 at PageID #5822. Officers then removed
McKinney’s handcuffs and began performing CPR on him. Handheld Video at 16:40–17:30.

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The officers vigorously performed CPR on McKinney for over five minutes until the Lexington
Fire Department Emergency Care Unit arrived and assumed care of him. R. 178-33 at PageID
#2668. The Code 101 was cleared at 7:07 pm. R. 178-32 at PageID #2665.
McKinney was transported to the University of Kentucky Medical Center, where he was
declared dead at approximately 7:35 pm. R. 178-33 at PageID #2668; R. 178-39 at PageID
#2684. The coroner stated that McKinney’s cause of death was asphyxia, aspiration of gastric
contents, and seizure disorder, with significant contributing factors of hypertensive
cardiovascular disease and morbid obesity. Id.
The McKinney Estate filed suit in Kentucky state court against Jones, Elko, Moss,
Arnold, Legear, Powell, and Womack. R. 1-4 at PageID #254–266.4 After the defendants
removed the case to federal district court, the McKinney Estate filed an amended complaint in
which it alleged that the officers had violated McKinney’s civil rights under 42 U.S.C. § 1983 by
acting with deliberate indifference to his medical needs and by using excessive force against him
in violation of the Eighth Amendment. R. 1; R. 144 at PageID #2022–2030, #2033–2050. The
McKinney Estate also alleged state-law negligence, intentional assault, intentional infliction of
emotional distress, wrongful death, and loss of consortium claims against the officers. R. 144 at
PageID #2091–2093.5 The officers moved for summary judgment on the federal claims on the
basis of qualified immunity and on the state-law claims on the basis of qualified official
immunity. R. 76-1 at PageID #726–737, R. 176 at PageID #2380–2382; R. 185 at PageID
#4977–4999.
4

The McKinney Estate also alleged claims against the Lexington-Fayette Urban County Government; the LexingtonFayette Urban County Government, Division of Community Corrections; Officer Wingate; Corizon, Inc.; and
numerous nurses. R. 144 at PageID #2014–2094. Corizon, Inc. is a company that provided medical care for the
inmates at FCDC. R. 179-1. The McKinney Estate’s claims against these defendants are not at issue in this appeal.
5

The district court dismissed the McKinney Estate’s intentional infliction of emotional distress claim. McKinney v.
Lexington-Fayette Urban Cty. Gov’t, No. 5:12–CV–360–KKC, 2015 WL 4042157, at *12 (E.D. Ky. Jul. 1, 2015).
That claim is not at issue in this appeal.

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The district court denied the officers’ motions for summary judgment. With respect to
the deliberate indifference claim, the district court determined that there was a genuine issue of
material fact regarding the following facts:
Officer Wingate toned a Code 100 at 6:19 p.m. for assistance in A9, a cell
in the Medical Unit. Therefore, medical staff and officers responding to the code
were aware that an inmate was suffering a medical emergency while housed in the
Medical Unit. Officers Clarissa Arnold, Nicholas Elko, Randy Jones, Eric
Legear, Adam Moss, and Regina Powell responded to Officer Wingate’s Code
100. Then, during the struggle that ensued in cell A9, Officer Arnold requested a
Signal 7 for assistance in Unit A. Correctional officers who responded to the
signal were aware that fellow officers needed assistance with an inmate who was
struggling in the Medical Unit. Officer Donald Womack responded to the Signal
7. . . .
After issuing the Code 100 and Signal 7, the correctional officers removed
McKinney from cell A9 and secured him in a restraint chair. Once he was
secured in the restraint chair, the correctional officers discussed what had
happened to cause both the Code 100 and Signal 7. An officer in the program
space clearly explained that “Legear was in [A9] trying to help [McKinney], he
was down because he had a seizure, and he starts spitting on the nurse.”
Therefore, once McKinney was secured in the restraint chair, . . . the
correctional officers knew the following facts: (1) McKinney was located in the
Medical Unit; (2) He suffered a medical emergency, specifically a seizure; (3) He
was bleeding from the mouth after suffering his second seizure; (4) He had
vomited at least once; (5) He received a two-second burst of pepper spray; (6) He
struggled with the officers for over seven minutes after having experienced his
second seizure that day; and (7) His spit hood contained multi-colored fluids.
While McKinney was secured in the restraint chair, . . . it was obvious that
he was at a substantial risk of serious harm and that many of the correctional
officers that were present had “sufficient exposure” to McKinney’s medical
concerns.
Objectively, McKinney’s distress was so obvious that even a lay person
would easily recognize his need for medical treatment. He was clearly in a
vulnerable state. The failure to provide medical treatment detrimentally
exacerbated McKinney’s medical issues; he died.
. . . [S]ome of the Defendant–Officers concede knowledge of the numerous
factors that created McKinney’s vulnerable state and admit they knew that
McKinney needed medical attention following his seizure and prolonged struggle

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before being confined to the restraint chair. [with citation references to the
depositions and incident reports of Jones, Elko, Legear, and Moss].
McKinney, 2015 WL 4042157 at *7–8 (emphasis in original) (internal citations omitted).
The district court then made the legal conclusion that a fact-finder could determine that
the officers met the objective and subjective standards for deliberate indifference under Farmer
v. Brennan, 511 U.S. 825, 834 (1994), Santiago v. Ringle, 734 F.3d 585, 591 (6th Cir. 2013), and
Burgess v. Fischer, 735 F.3d 426, 476 (6th Cir. 2013). McKinney, 2015 WL 4042157, at *8.
However, the district court added that it would “defer ruling on whether a particular [officer]
may invoke qualified immunity until the evidence at trial establishes the officer’s knowledge at
each critical point in time between McKinney’s second seizure and his death.” Id.
With respect to the excessive-force claim, the district court determined that there was a
genuine issue of material fact regarding the following facts:
Officers Wingate and Legear first responded to McKinney. Both officers
saw McKinney spit and perceived his actions as overt defiance; however, the
officers assisted McKinney during his second seizure of the day, observed that he
had severely bitten his tongue, and noted that he had a lot of bloody, frothy saliva
secretions coming out of his mouth.
Officers Arnold, Elko, Jones, Moss, and Powell arrived after McKinney
ceased actively seizing, but all officers responded to a Code 100—a medical
emergency—in the Medical Unit. Nonetheless, the officers quickly escalated the
amount of force used against McKinney; all seven officers “g[o]t physical” and
“assisted with restraining” McKinney within minutes of his second seizure. And
rather than attempting to pacify a medically delicate situation, multiple officers
performed mandibular angle pressure point control techniques and Officer[] Elko
administered a two-second burst of pepper spray to McKinney’s face.
After McKinney had suffered his second seizure, endured seven
correctional officers “going hands on” for approximately five minutes, received
multiple mandibular angle pressure point control techniques, and experienced a
two-second burse of pepper spray to his face, Officer Jones determined that
McKinney “continued to be unstable.” Officer Wingate put a spit hood over
McKinney’s head. Nine different officers then assisted in picking McKinney up,
dragging him to the program space, forcing him into the restraint chair, and
securing him into the chair.
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Later, the correctional officers decided to move McKinney to an isolated
cell in the Medical Unit. Inside cell A1, the correctional officers removed many
of McKinney’s restraints, but he remained handcuffed and shackled. Some
officers then lifted McKinney out of the restraint chair. The officers told him to
kneel down in the boat. McKinney—having experienced two seizures in one day,
actively struggled with correctional officers for over seven minutes, received no
medical care, and remained handcuffed and shackled with a spit hood on his
head—did not immediately kneel. The correctional officers then commenced
striking McKinney with their knees and forced McKinney into a prone position in
the boat. At least one officer kept a hand or knee on top of McKinney’s back at
all times to keep him in the prone position. Within minutes of being forced into
the prone position, McKinney ceased breathing.
[With respect to the subjective element of excessive force:] First,
McKinney died. Second, it is not clear that the officers needed to apply force at
all—officers saw blood and froth in McKinney’s mouth after his second seizure;
it is understandable that he would clear the blood and froth from his mouth—to
apply considerable force over an extended period, or to apply any additional force
once he was secured in the restraint chair. Third, officers used more force than
was needed. The officers were responding to a medical emergency, McKinney
only exhibited defensive resistance after officers escalated the use of force, and
McKinney did not actively threaten anyone. Fourth, the officers did not perceive
a threat. The correctional officers did not need to make any split-second
decisions. Finally, there is no evidence that the officers sought to deescalate the
situation.
[With respect to the objective element of excessive force:] The officers
“got physical” with McKinney, applied mandibular angle pressure point control
techniques, administered a two-second burst of pepper spray, secured him in a
restraint chair for over thirteen minutes, struck him with their knees, pinned him
down in the boat, and physically struggled with him for over seven minutes.
Further, this altercation ultimately ended in McKinney’s death. McKinney
experienced significant injury because of “prison officials[’] malicious[ ] and
sadistic [ ] use [of] force. . . .”
Id. at *9–10 (emphases in original) (internal citations omitted).
As a legal matter, the district court held that, accepting these facts, the subjective and
objective components for excessive force could be found. Id. at *11. However, the district court
again stated that it would “defer ruling on whether a particular [officer] may invoke qualified

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immunity until the evidence at trial establishes the amount of force used by each [officer] at each
particular time and the [officer’s] rationale for applying force at that time.” Id.
The district court also held that since the officers may have violated McKinney’s clearly
established constitutional rights, the doctrine of qualified official immunity did not shield the
officers from liability against the McKinney Estate’s state-law tort claims. Id.
II.
A.
We lack jurisdiction to consider Jones, Elko, Moss, Legear, and Womack’s argument that
the McKinney Estate has not shown sufficient evidence to get to a jury on the deliberateindifference and excessive-force claims. This is because this argument is premised upon factual
disputes, not abstract questions of law. A district court’s denial of a claim of qualified immunity
is an “appealable, ‘final decision’” under 28 U.S.C. § 1291 only to “the extent that [the denial]
turns on an issue of law.” DiLuzio v. Village of Yorkville, 796 F.3d 604, 609 (6th Cir. 2015)
(quoting Mitchell v. Forsyth, 472 U.S. 511, 530 (1985)). The central argument that the officers
raise on appeal—as described in the officers’ summary of their argument—is:
The [d]istrict [c]ourt erred in denying qualified immunity on the individual
capacity § 1983 claims against [the officers]. . . . [I]t is clear that [the McKinney
Estate has] failed to raise a material issue of fact sufficient to withstand summary
judgment to support [its] Eighth Amendment claims. Even conceding facts as
alleged by [the McKinney Estate], there is clearly insufficient evidence upon
which a reasonable fact finder could conclude that each of the [officers],
individually, had sufficient knowledge from which an inference could be drawn
that there was a substantial risk of serious harm to McKinney, much less that they
each actually drew that inference and chose to disregard it. In the same vein,
there is inadequate proof that could support a finding that each of the [officers],
individually, applied force maliciously or sadistically for the purpose of causing
harm, or applied force with a knowing willingness that harm would occur to
McKinney.

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Appellants’ Br. at 21–22. As this summary indicates, the officers’ arguments are grounded
entirely upon their refusal to accept the district court’s conclusion that there was sufficient
evidence to create a genuine issue of material fact. Jones, Elko, Moss, Legear, and Womack’s
individualized arguments are also premised upon factual disputes. For instance, Jones, Elko,
Moss, Legear, and Womack contend that there is no evidence in the record upon which to base a
finding that each of these officers could have inferred that there was a substantial risk of serious
harm to McKinney. Id. at 31, 33, 37, 38, 40. The officers also argue that they did not use
excessive force against McKinney in part because “[t]he evidence is uncontroverted that none of
the officers believed that McKinney was having a seizure at the point they intervened to restrain
him.” Id. at 43.
This court lacks jurisdiction to resolve these factual disputes. The Supreme Court held in
Johnson v. Jones that a defendant may not appeal a district court’s denial of summary judgment
on the basis of qualified immunity “insofar as that order determines whether or not the pretrial
record sets forth a ‘genuine’ issue of fact for trial.” 515 U.S. 304, 319−20 (1995). This court has
repeatedly held that Johnson precludes this court from deciding an interlocutory appeal that
challenges “the district court’s determination of ‘“evidence sufficiency,” i.e., which facts a party
may, or may not, be able to prove at trial.’” DiLuzio, 796 F.3d at 609 (quoting Johnson,
515 U.S. at 313); Kindl v. City of Berkley, 798 F.3d 391, 399 (6th Cir. 2015). This court has also
repeatedly held that “a defendant may not challenge the inferences the district court draws from
those facts, as that too is a prohibited fact-based appeal.” DiLuzio, 796 F.3d at 609 (citing Romo
v. Largen, 723 F.3d 670, 673–74 (6th Cir. 2013)). This is because the “[f]actual ‘inferences’
capable of being drawn from the evidence are still inherently factual determinations about what

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parties ‘may, or may not, be able to prove at trial.’” Kindl, 798 F.3d at 400 (quoting Johnson,
515 U.S. at 313).
In Kindl v. City of Berkley, this court held that these jurisdictional limitations precluded
this court from considering the defendants’ arguments that there was insufficient evidence to
establish that they were aware of an inmate’s serious medical need. 798 F.3d at 398–99. In so
holding, this court explained that the defendants’ principal arguments “reduce[d] merely to a
factual contention that [the p]laintiff cannot prove that they should have known of, much less
that they were in fact aware of, [the inmate’s] serious medical need.” Id. at 398. This court also
rejected the defendants’ argument that this court had jurisdiction to review the inferences that the
district court drew from the record about their awareness of the inmate’s serious medical need.
Id. at 400–01. In declining to embrace interlocutory jurisdiction over these factual inferences,
this court explained an appellate court was “in no better a position than the district court—or
more to the point, a jury—to determine whether based on [the inmate’s] statements, convulsions,
alleged moans, requests for attention, and appearance, [the d]efendants subjectively understood
the gravity of her situation.” Id.
We lack jurisdiction to consider Jones, Elko, Moss, Legear, and Womack’s arguments
that there was insufficient evidence to establish that they violated McKinney’s constitutional
rights for the same reason that we lacked jurisdiction to consider the defendants’ arguments in
Kindl: These arguments are, at bottom, impermissible attempts to challenge the factual
inferences that the district court determined could be drawn by the jury from the evidence. The
district court determined that there was sufficient evidence in the record to create a genuine issue
of material fact about whether each officer drew the inference that there was a substantial risk of
serious harm to McKinney and chose to disregard that inference. McKinney, 2015 WL 4042157,

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at *8.

The district court also concluded that there was adequate evidence to support a

determination that each officer used force maliciously or sadistically to cause harm to
McKinney. Id. at *11. We are bound by these determinations at this interlocutory point in the
litigation.
To be sure, we may review the district court’s determination that there was a genuine
issue of material fact if “the district court’s determination that a dispute of fact exists is blatantly
and demonstrably false.” Clay v. Emmi, 797 F.3d 364, 368 (6th Cir. 2015) (internal citation and
quotation marks omitted). An appellate court may exercise jurisdiction to hear and reverse such
holding where “the plaintiff’s version of the facts, which the district court accepted, was ‘so
utterly discredited by the record . . . that no reasonable jury could have believed him.’” Romo,
723 F.3d at 674 n.3 (quoting Scott v. Harris, 550 U.S. 372, 380 (2007)). The classic example of
this is a clearly dispositive videotape of the relevant action. See Scott, 550 U.S. at 378–81.
There are videotapes in this case as described above, but they simply do not blatantly contradict
any of the district court’s factual determinations. Accordingly, we lack jurisdiction to review the
district court’s conclusion that there were genuine issues of material fact about whether each of
the officers violated McKinney’s constitutional rights.
A careful look at the officers’ deliberate-indifference arguments confirms that these
arguments are premised entirely upon impermissible attempts to challenge the district court’s
factual determinations. The officers contend that their testimony about their lack of awareness of
McKinney’s medical condition and their observations of McKinney’s non-compliant and
resistant behavior establish that they lacked sufficient knowledge to draw an inference that
McKinney was at a substantial risk of serious harm. Appellants’ Br. at 30–40. The district court
disagreed. The district court concluded that each of the officers may have been aware of the

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contextual facts that made it “obvious” to a layperson that McKinney needed medical treatment.
McKinney, 2015 WL 4042157, at *7–8.

The officers refuse to accept this conclusion.

Accordingly, this aspect of the officers’ argument is premised upon the officers’ impermissible
attempts to challenge the factual inferences that the district court drew from the evidence in the
record.6
The same is true with respect to the officers’ excessive-force arguments. The officers
contend that they used force against McKinney in a good-faith effort to maintain safety and
discipline because they observed McKinney acting physically aggressive and refusing to comply
with orders. The officers also argue that they had a reasonable basis to use force against
McKinney because they were not aware that he had suffered a seizure when they intervened to
restrain him.

Appellants’ Br. at 43–52.

The district court disagreed.

The district court

concluded that the officers may have used unnecessary force in part because McKinney
exhibited only defensive resistance after the officers escalated the use of force and did not
actively threaten anyone.

McKinney, 2015 WL 4042157, at *10.

The district court also

concluded that the officers did not perceive McKinney to be a threat and were aware that he was
having a medical emergency. Id. This court lacks jurisdiction to review the district court’s
factual findings about the amount of resistance and aggression that McKinney exhibited, the
officers’ perceptions of the threat that he posed, and the officers’ awareness of his medical
distress.
6

Jones, Elko, Moss, Legear, and Womack also rely on the fact that the “medical staff were present and observing,”
during the incident but “never once attempted to deter any of [the officers] or instruct them that their actions were
medically contraindicated.” Appellants’ Br. at 29. The officers do not cite any cases that establish that the district
court made a legal error when it concluded that the officers may have been deliberately indifferent to McKinney’s
serious medical needs even though the medical staff were present during the incident. The officers’ arguments
about the medical staff therefore pose questions of fact capable of resolution by competent evidence, including
evidence about the officers’ observations of facts that indicated that McKinney was in medical distress, the training
that the officers received about how to care for an inmate who was in medical distress, and the officers’ perceptions
about the adequacy of the treatment that the medical staff provided to McKinney.

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Moreover, the Overhead Video does not compel a conclusion that McKinney engaged in
aggressive, non-complaint behavior that justified the use of force against him. The Overhead
Video does not clearly show the movements of McKinney or the officers during the physical
struggle that occurred in Room A-9. Overhead Video at 2:25–7:08. The Overhead Video
therefore does not objectively eliminate the possibility that McKinney exhibited only defensive
resistance after the officers escalated the use of force against him and did not actively threaten
anyone.
Jones, Elko, Moss, and Womack also claim that they did not use excessive force when
they took McKinney out of the restraint chair and placed him in the boat in Room A-1.
Appellants’ Reply Br. at 19–20.

To support this argument, the officers contend that the

Handheld Video “speaks for itself” about their actions in Room A-1. Id. at 24–25. Jones, Elko,
Moss, and Womack also argue that their testimony establishes that they took McKinney out of
the restraint chair and placed him in the boat not to “punish, discipline, or otherwise mistreat”
him, but so that he “could rest while medical staff assessed him and while the officers changed
him out of his jumpsuit and into a new one.” Id. at 19–20, 25.
These arguments are premised upon factual disputes about the officers’ motives for
moving McKinney into the boat. The district court determined that there may have been no need
for the officers to use “any additional force once [McKinney] was secured in the restraint chair,”
and we must accept that fact at this point in the litigation. McKinney, 2015 WL 4042157, at *10.
A defendant makes an impermissible fact-based appeal when he “challenge[s] directly the
plaintiff’s allegations (and the district court’s acceptance)” of “why an action was taken or
omitted.” DiLuzio, 796 F.3d at 609 (citation omitted).

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Moreover, the Handheld Video does not utterly discredit the district court’s conclusion
that the officers may have used excessive force when they placed McKinney in the boat. The
Handheld Video appears to show one officer using his knee to force McKinney into the boat.
Handheld Video at 11:50–12:05. The other officers’ knees are not visible on the Handheld
Video at this time. Id. The district court therefore identifies as a genuine issue whether,
consistent with the Handheld Video, multiple officers struck McKinney with their knees in order
to force him face-down into the boat. McKinney, 2015 WL 4042157, at *10. The Handheld
Video also supports the district court’s determination that “[a]t least one officer kept a hand or
knee on top of McKinney’s back at all times to keep him in the prone position.” Id. This is
because the Handheld Video shows that several officers placed their hands and knees on
McKinney’s back while he was positioned face-down in the boat. Handheld Video at 12:05–
13:40. The Handheld Video also shows that while the officers were placing McKinney on the
boat, McKinney was only defensively resistant, did not actively threaten anyone, and had his
hands handcuffed behind his back. Id. at 11:35–13:40. The Handheld Video therefore does not
blatantly contradict the district court’s conclusion that since McKinney was not actively resistant
and did not pose a threat, the officers may not have needed to strike McKinney with their knees
or pin him down in the boat.
The officers also attempt to circumvent the jurisdictional limitations of this court by
citing cases in which this court upheld the use of force to subdue non-compliant or physically
resistant individuals. These arguments are unavailing because these cases are analogous only if
we accept the officers’ version of the facts and ignore the factual inferences that the district court
drew from the evidence in the record.

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For instance, Elko relies on cases in which this court has approved the application of stun
guns or chemical agents on inmates who refused to follow reasonable commands to support his
contention that he did not use excessive force against McKinney.

Appellants’ Br. at 51;

Jennings v. Mitchell, 93 F. App’x 723, 725 (6th Cir. 2004); Caldwell v. Moore, 968 F.2d 595,
600 (6th Cir. 1992). Elko claims that these cases show that his use of pepper spray against
McKinney was reasonable because Elko “reasonably believed that McKinney was able to
understand what the correctional staff [were] saying to him and intentionally disobeyed their
verbal commands.”

Appellants’ Br. at 51.

However, as stated above, the district court

determined that Elko may have observed facts that made it obvious that McKinney was having a
medical emergency.

There was thus an issue of fact about whether Elko believed that

McKinney’s medical distress rendered him unable to understand or comply with the officers’
orders. Accordingly, Elko’s reliance on these cases is premised upon his refusal to accept the
district court’s version of the facts.
B.
Jones, Elko, Moss, Legear, and Womack do raise a legal issue that we have jurisdiction
to consider, which is their contention that the district court failed to individually evaluate their
qualified-immunity claims. However, the district court’s assessment of the officers’ qualifiedimmunity claims was sufficiently individualized. This argument therefore does not provide a
basis for relief.
We have jurisdiction to consider the officers’ argument that the district court failed to
individually evaluate their qualified-immunity claims because this argument is premised upon a
question of law, not a factual dispute. Because the doctrine of qualified immunity provides
“immunity from suit rather than a mere defense to liability,” a district court makes a “legal error”

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when it fails to rule on the merits of a defendant’s qualified-immunity defense before trial.
Skousen v. Brighton High Sch., 305 F.3d 520, 526–27 (6th Cir. 2002). Accordingly, this court
has interlocutory jurisdiction to review a district court’s denial of a defendant’s qualified
immunity claim when that denial is premised upon the court’s refusal to determine whether there
is a genuine issue of fact remaining for trial. Id.
Jones, Elko, Moss, Legear, and Womack contend that the district court refused to
determine whether there was a genuine issue of fact about whether they each met the subjective
components of deliberate indifference and excessive force until further evidence had been
presented at trial. Appellants’ Br. at 28–29, 42–43. To support this contention, the officers cite
the district court’s statements that the court would “defer ruling on whether a particular [officer]
may invoke qualified immunity until the evidence at trial” provided more information about the
officer’s state of mind and actions during the incident that led to McKinney’s death. Appellants’
Br. at 28, 42–43 (citing McKinney, 2015 WL 4042157, at *8, 11). The officers’ contention can
be construed as raising the legal question of whether the district court refused to determine
before trial if a genuine issue of fact precluded summary judgment on each officer’s qualifiedimmunity claim. Accordingly, this court has jurisdiction to consider this aspect of the officers’
appeal.
Our exercise of appellate jurisdiction is consistent with our holding in McGraw v.
Madison Twp., 231 F. App’x. 419, 422 (6th Cir. 2007), that we lacked jurisdiction to consider
the defendant police officers’ argument that the district court “failed to consider each officer’s
liability individually.” In McGraw, the argument was merely an “attempt[] to recast evidence
sufficiency claims as legal arguments,” 231 F. App’x at 422, because the argument was at
bottom based on evidence sufficiency. In contrast, defendants’ argument in this case, generously

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construed, is based not so much on evidence sufficiency as on the district court’s purported
declining to rule individually with respect to the individual officers’ claims of qualified
immunity.
However, considered as a legal contention, the claim fails. Although the district court
sometimes referred to Jones, Elko, Moss, Legear, and Womack collectively as the “officers” or
the “correctional officers,” the district court made individualized factual findings about each
officer’s actions and state of mind during the incident that led to McKinney’s death. Based on
these findings, the district court determined that there were genuine issues of fact about whether
these officers each met the subjective components of deliberate indifference and excessive force.
The district court therefore conducted a sufficiently individualized assessment of each officer’s
qualified-immunity claim.
With respect to deliberate indifference, the district court conducted a sufficiently
individualized assessment of the subjective component of deliberate indifference as to Jones,
Elko, Moss, Legear, and Womack.

When multiple defendants assert qualified-immunity

defenses, the district court must conduct an individualized assessment of the subjective
component of deliberate indifference as to each defendant. Phillips v. Roane Cty., 534 F.3d 531,
542 (6th Cir. 2008) (citing Garretson v. City of Madison Heights, 407 F.3d 789, 797 (6th Cir.
2005)). “[T]he subjective component requires a plaintiff to ‘allege facts which, if true, would
show that the official being sued subjectively perceived facts from which to infer substantial risk
to the prisoner, that he did in fact draw the inference, and that he then disregarded that risk.’”
Phillips, 534 F.3d at 540 (quoting Comstock v. McCrary, 273 F.3d 693, 703 (6th Cir. 2001)).
Since prison officers “do not readily admit the subjective component, a factfinder may infer from
circumstantial evidence, including the very fact that the risk was obvious, that a prison official

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knew of a substantial risk.” Santiago, 734 F.3d at 591 (internal quotation marks and citation
omitted). The district court found genuine issues of material fact regarding Jones, Elko, Moss,
Legear, and Womack that (1) each of these officers was aware of facts that indicated that
McKinney was in medical distress; (2) each officer drew the inference that there was a
substantial risk of serious harm to McKinney; and (3) each officer disregarded that risk by failing
to obtain proper medical treatment for McKinney.
First, the district court concluded that Jones, Elko, Moss, Legear, and Womack each may
have been aware of facts that indicated that McKinney was in medical distress. The district court
explained:
[O]nce McKinney was secured in the restraint chair, context illustrates that the
correctional officers knew the following facts: (1) McKinney was located in the
Medical Unit; (2) He suffered a medical emergency, specifically a seizure; (3) He
was bleeding from the mouth after suffering his second seizure; (4) He had
vomited at least once; (5) He received a two-second burst of pepper spray; (6) He
struggled with the officers for over seven minutes after having experienced his
second seizure that day; and (7) His spit hood contained multi-colored fluids.
McKinney, 2015 WL 4042157, at *7 (emphasis in original) (internal citations omitted). The
district court’s factual findings about Jones, Elko, Moss, Legear, and Womack establish that each
of these officers may have been aware of all of these facts. The district court explained that
Jones, Elko, Moss, and Legear all participated in the struggle that occurred in Room A-9. Id. at
*2. The district court also concluded that Womack went to the Medical Unit in response to the
Signal 7 and that the Signal 7 was toned during the physical struggle that occurred in Room A-9.
Id. at *7. There was therefore a genuine issue of fact as to whether each of these officers
observed the facts that indicated that McKinney was in medical distress while he was in Room
A-9. Further, such a question existed as to whether each of these officers was present when an

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officer “clearly explained that ‘Legear was in [Room A-9] trying to help [McKinney], he was
down because he had a seizure and he starts spitting on the nurse.’” Id.
Second, the district court concluded that the officers’ awareness of these facts provided
them with a sufficient basis to infer that there was a substantial risk of serious harm to
McKinney. The district court stated that “[w]hile McKinney was secured in the restraint chair,
the context indicates that it was obvious that he was at a substantial risk of serious harm.” Id. at
*8. To support this conclusion, the district court cited FCDC training materials explaining that
“a seizure exhausts every muscle in the body” and explaining that “an inmate is at an elevated
risk of sudden death” due to Sudden Custody Death Syndrome “after struggling with correctional
officers for at least three minutes.” Id. (citing R. 194-1 at PageID #5809, #5832, #5834–5835,
#5848, #5853) (emphasis in original). Since this information was included in lesson plans and
training materials for “pre-service recruits,” R. 194-1 at PageID #5803, #5827, and since Jones,
Elko, Moss, Legear, and Womack testified that they completed the detention center’s training
program for pre-service recruits, R. 193-2 at PageID #5599; R. 193-3 at PageID #5654, #5659–
5660; R. 193-4 at PageID #5712–5714; R. 193-5 at PageID #5729–5732; R. 195-1 at PageID
#5909–5911, each of these officers may have been taught about the risks of seizures and Sudden
Custody Death Syndrome. This evidence raised a question of fact as to whether each of these
officers was in a position to infer that there was a substantial risk of serious harm to McKinney
based on their training and observations of facts that indicated that he was in medical distress.
Third, the district court concluded Jones, Elko, Moss, Legear, and Womack may have
disregarded the substantial risk to McKinney. The district court explained that the officers “were
not free to ignore the obvious dangers to McKinney.” McKinney, 2015 WL 4042157, at *8. The
district court also explained that when McKinney was in the restraint chair, he did not receive a

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medical assessment or any medical treatment except for an injection to calm him down. Id. at
*3. The district court therefore must have determined that each of the officers may have ignored
the obvious dangers to McKinney by failing to obtain proper medical treatment for him.
Accordingly, the district court conducted a sufficiently individualized assessment of the
subjective component of deliberate indifference.
The district court also conducted a sufficiently individualized assessment of the
subjective component of excessive force. Because “it is well-settled that qualified immunity
must be assessed in the context of each individual’s specific conduct,” Reilly v. Vadlamudi, 680
F.3d 617, 624 (6th Cir. 2012), a court must determine whether each prison official individually
met the subjective component of excessive force. “[T]he subjective component focuses on the
state of mind of the prison officials. We ask whether force was applied in a good-faith effort to
maintain or restore discipline, or maliciously and sadistically to cause harm.”

Cordell v.

McKinney, 759 F.3d 573, 580 (6th Cir. 2014) (internal quotation marks and citations omitted).
In Hudson v. McMillian, 503 U.S. 1, 7 (1992), the Supreme Court held that this analysis is
guided by a number of factors, including (1) the extent of the inmate’s injury; (2) the need for the
application of force; (3) the relationship between that need and the amount of force used; (4) the
threat that the officials reasonably perceived; and (5) any efforts to temper the severity of a
forceful response.
The district court’s analysis of the Hudson factors, in addition to the court’s factual
findings about each officer’s actions and state of mind during the incident, establish that the
court conducted a sufficiently individualized assessment of the subjective component of
excessive force. The district court noted that since McKinney died, the first Hudson factor
indicated that the officers met the subjective component of excessive force.

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2015 WL 4042157, at *10. This factor applies to Jones, Elko, Moss, Legear, and Womack
individually because the district court concluded that each of these officers used force against
McKinney at some point during the incident that led to his death. Id. at *2–4, 9–10. Second, the
district court explained the officers may not have “needed to apply force at all[,] . . . to apply
considerable force over an extended period, or to apply any additional force once [McKinney]
was secured in the restraint chair.” Id. at *10. The district court concluded that Jones, Elko,
Moss, and Legear all “g[o]t physical” and “assisted with restraining” McKinney after he had his
seizure in Room A-9, “going hands on” against McKinney for approximately five minutes. Id. at
*9 (internal citations omitted). The district court also determined that Jones, Elko, Moss, and
Womack actively participated in the process of taking McKinney out of the restraint chair and
forcing him into a prone position in the boat. Id. at *4. Accordingly, there was a genuine issue
as to whether Jones, Elko, Moss, Legear, and Womack used unnecessary force against
McKinney either during the struggle that occurred in Room A-9 or during the process of taking
him out of the restraint chair and forcing him into the boat. This factor therefore also applies to
each of the officers.
Third, the district court determined that the “officers used more force than was needed”
because “[t]he officers were responding to a medical emergency, McKinney only exhibited
defensive resistance after the officers escalated the use of force, and McKinney did not actively
threaten anyone.” Id. at *10 (emphasis in original). This factor applies to Jones, Elko, Moss,
Legear, and Womack individually because the district court, as stated above, determined that
there was an issue of fact as to whether each of these officers knew that McKinney was having a
medical emergency. Further, the district court concluded that each of these officers actively

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participated in either escalating the use of force against McKinney in Room A-9 or in using force
against him after he was confined to the restraint chair.
Fourth, the district court concluded that “the officers did not perceive a threat.” Id. To
support this conclusion, the district court cited an incident report in which Moss stated that
McKinney “seemed dazed and incoherent” and was “highly erratic and being defensively
resistant to staff” while he was in Room A-9. Id. (citing R. 178-33 at PageID #2668). Because
the record establishes that Jones, Elko, Moss, Legear, and Womack all either actively
participated in or observed the physical struggle that occurred Room A-9, R. 178-36 at PageID
#2675; R. 178-23 at PageID #2632–2633, a material issue of fact existed regarding whether each
of these officers saw that McKinney was dazed, incoherent, and defensively resistant, and
therefore perceived that he was not a threat. Fifth, the district court concluded that “there is no
evidence that the officers sought to deescalate the situation.” McKinney, 2015 WL 4042157, at
*10. Because the district court did not conclude that any officer tried to deescalate the situation,
this factor applies to all of the officers. The district court’s analysis of the Hudson factors
therefore establishes that the district court conducted a sufficiently individualized assessment of
the subjective component of excessive force.
The officers contend that the district court’s statements that the court would “defer ruling
on whether a particular [officer] may invoke qualified immunity” until further evidence had been
presented at trial establish that the court failed to conduct an individualized assessment of each
officer’s qualified-immunity claim. Appellants’ Br. at 28–29, 42–43; McKinney, 2015 WL
4042157, at *8, 11. This argument lacks merit. As stated above, although the district court
sometimes referred to Jones, Elko, Moss, Legear, and Womack collectively as “the officers” or
“the correctional officers,” the district court conducted a sufficiently individualized assessment

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of the subjective components of deliberate indifference and excessive force as to each of these
officers. Accordingly, read in the overall context of the district court’s opinion, these statements
reflect the court’s acknowledgement that its denial of the officers’ motions for summary
judgment did not preclude the court from reconsidering its decision as the record develops.
These statements do not show that the district court refused to assess individually each officer’s
qualified-immunity defense until further evidence was presented at trial.

The officers’

contention that the district court refused to individually assess their qualified-immunity claims
therefore does not provide a basis for relief.
C.
We lack jurisdiction to consider the officers’ argument that they are protected by the
doctrine of state-law qualified official immunity. This is because the officers’ argument is
premised on factual disputes that we lack jurisdiction to consider on interlocutory appeal.
Like the district court’s denial of the officers’ federal qualified-immunity defenses, the
district court’s denial of the officers’ state-law qualified-official-immunity defenses is
reviewable only to the extent that it turns on an issue of law. This court has interlocutory
appellate jurisdiction to review a district court’s denial of qualified official immunity for
Kentucky state-law claims. Williams v. Sandel, 433 F. App’x 353, 359 (6th Cir. 2011) (citing
Livermore ex rel. Rohm v. Lubelan, 476 F.3d 397, 407 (6th Cir. 2007); Haney v. Monsky,
311 S.W.3d 235, 239–40 (Ky. 2010)). However, as stated above, the Supreme Court has held
that a district court’s denial of a federal qualified immunity claim is appealable only to the extent
that the denial turns on an issue of law. Mitchell, 472 U.S. at 530; Johnson, 515 U.S. at 319–20.
Relying on Mitchell and Johnson, the Court of Appeals of Kentucky has reasoned that a trial
court’s denial of a state-law qualified-official-immunity claim is also immediately appealable
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only to the extent that the denial turns on an issue of law. Carl v. Dixon, No. 2010–CA–000676–
MR, 2011 WL 919896, at *1 (Ky. Ct. App. Mar. 18, 2011); Broughton v. Russell, No. 2009–
CA–001753–MR, 2010 WL 4320436, at *1 (Ky. Ct. App. Oct. 29, 2010); Medley v. Rogers,
Nos. 2007–CA–000936–MR, 2007–CA–001734–MR, 2009 WL 50168, at *3 (Ky. Ct. App. Jan.
9, 2009).

Similarly, this court has held that a defendant who is denied qualified official

immunity under Kentucky law “may file an interlocutory appeal only if the appeal involves an
abstract or pure legal issue.” Hedgepath v. Pelphrey, 520 F. App’x 385, 388, 391 n.3 (6th Cir.
2013) (internal quotation marks and citation omitted). Because the standard for qualified official
immunity under Kentucky law “is materially similar to the one a plaintiff must meet to overcome
a federal defense of qualified immunity,” King v. Taylor, 694 F.3d 650, 665 (6th Cir. 2012),
these cases determined that Mitchell and Johnson govern the analysis of the officers’ qualifiedofficial-immunity claims. Accordingly, the district court’s denial of the officers’ qualifiedofficial-immunity claims is reviewable only to the extent it turns on an issue of law.
This court lacks jurisdiction to review the district court’s denial of the officers’ qualifiedofficial-immunity claims. This is because the denial is premised on factual disputes. The
doctrine of qualified official immunity protects public officials from liability for negligent
conduct when “the negligent act or omissions”—in addition to meeting other elements of the
defense—“were made in good faith (i.e. were not made in ‘bad faith’).” Rowan Cty. v. Sloas,
201 S.W.3d 469, 475 (Ky. 2006) (citing Yanero v. Davis, 65 S.W.3d 510, 522 (Ky. 2001)).
“‘[B]ad faith’ can be predicated on a violation of a constitutional, statutory, or other clearly
established right which a person in the public employee’s position presumptively would have
known was afforded to a person in the plaintiff’s position . . . .” Yanero, 65 S.W. at 523. The
officers contend that they are protected by the doctrine of qualified official immunity in part

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because the McKinney Estate “failed to establish deliberate indifference and excessive force, and
thus have also failed to prove bad faith.” Appellants’ Reply Br. at 26. However, as stated above,
the district court concluded that there was a genuine issue of fact about whether the McKinney
Estate established deliberate indifference and excessive force, and this court lacks jurisdiction to
review that determination. Accordingly, since the resolution of officers’ state-law qualifiedofficial-immunity defenses is dependent on the same disputes of fact as the officers’ federal
qualified-immunity defenses, we dismiss this aspect of the officers’ appeal for lack of
jurisdiction.
D.
The officers raise another legal issue, which is that the district court denied Arnold and
Powell’s motions for summary judgment even though the McKinney Estate waived its claims
against these officers. The McKinney Estate stated in its response to the officers’ motions for
summary judgment that it no longer desired to pursue its claims against Arnold and Powell and
had no objection to summarily dismissing the claims against these officers. R. 193-1 at PageID
#5526. Despite this acknowledgment, the district court denied summary judgment to Arnold and
Powell. McKinney, 2015 WL 4042157, at *15. It is accordingly proper to reverse the district
court’s judgment denying Arnold and Powell’s motions for summary judgment.
The judgment of the district court denying summary judgment to Jones, Elko, Legear,
Moss, and Womack is affirmed. The judgment of the district court denying summary judgment
to Arnold and Powell is reversed.

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