Gardner v. Kenton County Detention Center et al

Filing 91

MEMORANDUM OPINION AND ORDER FOR ORAL ARGUMENT held on 12/13/2012 before Judge William O. Bertlesman; 1)Defs' 70 Motion for Summary Judgment and 71 Motion for Summary Judgment are GRANTED; 2)Counts one, two, three, four and five as alleged against Defs Kenton County Detention Center, Kenton County Fiscal Court, Kenton County Commissioners, Terry Carl, G. Scott Colvin, Kim Roberts and Terri Portwood are DISMISSED WITH PREJUDICE; 2)The remaining state law claims against Def Marion Lawson Parker, III is DISMISSED WITHOUT PREJUDICE; 3)A separate judgment to enter concurrently (Court Reporter JOAN AVERDICK.). Signed by Judge William O. Bertelsman on 12/19/2012. Signed by William O. Bertelsman. (LST)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION
COVINGTON

CIVIL ACTION NO. 09-70 (WOB-JGW)
FRANCES GARDNER, ETC.
VS.

PLAINTIFF
MEMORANDUM OPINION AND ORDER

KENTON COUNTY, ET AL.

DEFENDANTS

This is an action by the administrator of the estate of a
former pretrial detainee at the Kenton County Detention Center
(“KCDC”) against Kenton County Fiscal Court (“Kenton County”), a
number of administrators at the jail in their official and
individual capacities, and the individual convicted of the
murder of the decedent.

Pursuant to 42 U.S.C. § 1983, Plaintiff

has alleged violations of the Eighth and Fourteenth Amendments.
Additionally, Plaintiff has brought state law claims under
theories of respondeat superior, negligent supervision, and
wrongful death.
This matter is before the Court on the joint motion for
summary judgment of Defendants, Terry Carl, G. Scott Colvin, Kim
Roberts, and Terri Portwood (“Individual Defendants”), (Doc. 70)
and the motion for summary judgment of Defendant Kenton County
(Doc. 71).
The Court heard oral argument on these motions on Thursday,
December 13, 2012.

Randy Byrd represented the Plaintiff; Mary

Ann Stewart represented the Individual Defendants; and

Christopher Scott Nordloh represented Kenton County.

Official

court reporter Joan Averdick recorded the proceedings.
Having heard the parties, the Court now issues the
following Memorandum Opinion and Order.
Factual and Procedural History
On Friday, March 27, 2009, Isaac Jackson (“Jackson”) was
arrested and charged with giving a police officer a false name
or address.

See Deposition of Lt. Hilton Humphrey, Ex. D.

The charge is a Class B Misdemeanor under Kentucky law.

Jackson

was transported to the Kenton County Detention Center (“KCDC”)
at approximately 5:30 pm.

Id.

The following day, Staff

Sergeant Ryan Sims classified Jackson as “Restricted Custody”
and assigned him to cell 921.1

Id.

Tragically, in the early

morning of March 29, 2009, Jackson was murdered by Marion
Parker, III, one of Jackson’s cellmates in cell 921.
Inmates at the KCDC can be classified into one of five
different custody levels.

See Doc. 71, Ex. 10.

An inmate’s

custody level is generally based on the inmate’s current charge,
criminal history, and previous institutional behavior.

Id.

Each inmate is given a different-colored armband to signify his
custody level.

Id.

The level termed “Restricted Custody” is

reserved for “inmates [that] have either a history of violent

1

Since Jackson was incarcerated on the weekend, Staff Sgt. Sims, the weekend
shift commander, classified Jackson instead of Lt. Hilton Humphrey, the
normal classification officer. See Deposition of Ryan Sims at 13.

2

offenses or a violent institutional behavior.”2

Id.

Kenton

County’s classification system, known as JailTracker, is
designed to use objective criteria to determine the appropriate
custody level for each inmate.

See Deposition of Terence Carl

at 16-17.
Using the JailTracker system, deputies answer a series of
yes-or-no questions pertaining to the inmate. See Sims Depo. at
13-14.

One of the classification questions asks whether the

inmate has committed a violent felony within the past twenty
(20) years.

See Doc. 71-12.

An answer of “yes” to this

question will result in a “Restricted Custody” classification
for that inmate.

See Humphrey Depo. at 18-19; see also Doc. 71,

Ex. 12.
In this case, Sgt. Sims answered “yes” to this question
based on Jackson’s 1991 conviction for aggravated robbery, and

2

The remaining custody levels are defined as follows:
 Maximum Prisoner – This is the highest security risk category
into which an inmate can be classified. This typically includes
capital offenses, high escape risk, or violent offenders. A
facility lockdown is warranted to move these inmates.
 Protective Custody – Any inmate charged with a sexually-related
crime, inmates that need protection from others due to court
testimonials, or gang-related needs. A floor lockdown is
required to move these inmates.
 Medical – These inmates have special medical needs that require
separate housing and observation. Medical inmates may need
certain medical items, wheelchairs, crutches, etc.
 General Population – This is the majority of the jail’s
population. These inmates can be used as inmate workers
(trustees) and have no restriction on movement or activity.
See Doc. 71, Ex. 10. 

3

the JailTracker software classified Jackson as “Restricted
Custody.”

See Sims Depo. at 27; see also Doc. 71-12.

Subsequently, Jackson was placed in cell 921, with five (5)
other inmates who were also classified as “Restricted Custody.”
See Humphrey Depo., Ex. D.

Three of Jackson’s cellmates, Marion

Parker, Brian Golsby, and Toshawn Sims, were detained on murder
charges.

Id.

At some point in the late evening of March 28, 2009, or the
early morning hours of March 29, 2009, Jackson and Parker had an
altercation outside of the bathroom.
Confession (Doc. 71-4) at p. 68-69.

See Marion Parker
Parker punched Jackson a

few times, but voluntarily backed off.

Id.

There is nothing in

the record which indicates, nor does the Plaintiff allege, that
this altercation was seen by a deputy at the KCDC.
Shortly after this altercation, Jackson tapped on the cell
door to get the attention of Deputy Shawn Grueser, who had only
been on the job for two weeks.

See Deputy Shawn Grueser

Deposition at 8, 17; see also Parker Confession at p. 81.

From

inside his cell, Jackson asked Deputy Grueser if he could speak
with the Staff Sergeant.3

Deputy Grueser testified he told

Jackson he would notify his Staff Sergeant, but Jackson
responded that, instead, he would write down his statement.

See

3

The position of Staff Sergeant is also referred to in various depositions as
Watch Commander (see Wernher Stilt Deposition at 12-13) and Shift Commander
(see Grueser Depo. at 17).

4

Grueser Depo. at 17.

Deputy Grueser testified that he notified

his Field Training Officer, Deputy Albert Hopple, and the Staff
Sergeant on duty, Sgt. Jeremy Miller, that Jackson wanted to
speak with the Staff Sergeant. Id. at 20-21.
However, Deputy Hopple and Sgt. Miller both deny that
Deputy Grueser attempted to contact them about Jackson’s
request.

See Deposition of Deputy Albert Hopple at 21; see also

Deposition of Sergeant Jeremy Miller at 28.
At approximately 4:00 a.m. and while on his rounds, Deputy
Grueser approached Jackson to see if he was finished with his
note for the Staff Sergeant.

Id. at 21-22.

While speaking with

Jackson, Deputy Grueser heard a loud noise coming from another
cell and he went to investigate the noise.

Id. at 22.

At

approximately 5:15 a.m., Deputy Grueser again approached
Jackson’s cell.

Id. at 23-24.

From outside the cell, Deputy

Grueser asked Jackson if he was finished with his note, but
fellow cellmate, Toshawn Sims, responded, “No, he’s fine.”
at 24, Ex. V.

Id.

Deputy Grueser testified that he did not inquire

any further since the lights were out and he “had no reason to
feel that anything had happened.”

Id.

According to Parker, it was between 4:30 a.m. – 5:00 a.m.
that he murdered Jackson by strangulation.
Confession at p. 74-75.

See Parker

Parker testified that Jackson did not

scream or yell, but he hit Jackson’s head against the ground
5

during an initial struggle.

Id. at 76, 78.

Parker stated that

this altercation lasted only about two minutes.

Id.

After Jackson was dead, Parker cleaned up blood with the
towel, put Jackson back in his bed, and attempted to flush the
towel down the toilet.

Id. at 77-79.

Jackson’s body was not

discovered until after lunch the following day, March 29, 2009,
when the toilet backed up into the cell.

See Parker Depo. at

20-22.
In fact, deputies did a head count and served both
breakfast and lunch to the cell without discovering Jackson’s
body.

The KCDC officials admit that protocol was not followed

in regard to these instances.

See Wernher Stilt Deposition at

14, 17.
Following Jackson’s death, his mother, Frances Gardner, was
appointed the administrator of his estate.
5.

See Complaint at ¶

In her capacity as such, Gardner has brought suit against

Kenton County Fiscal Court and against Terence Carl, G. Scott
Colvin, Kim Roberts, and Terri Portwood,4 seeking to hold each
liable in his or her official and individual capacities for

4

Carl is the duly-elected Kenton County Jailer. Colvin is employed by Kenton
County as the Detention Center’s Chief Deputy Jailer, holding the rank of
Colonel. Roberts is employed by Kenton County as the Detention Center’s
Administrative Commander. Portwood is employed by Kenton County as a Booking
Supervisor in the Detention Center.

6

Jackson’s death.5

Plaintiff also filed a claim against Marion

Lawson Parker, III for wrongful death.

See Complaint at ¶ 48.

Analysis
“To successfully state a claim under 42 U.S.C. § 1983, a
plaintiff must identify a right secured by the United States
Constitution and the deprivation of that right by a person
acting under color of state law.” Russo v. City of Cincinnati,
953 F.2d 1036, 1042 (6th Cir. 1992).

A pretrial detainee’s

Fourteenth Amendment due process claim for failure to protect is
analyzed using the same standard as the Eighth Amendment.6

See

Peart v. Seneca County, 808 F. Supp. 2d 1028, 1031 (N.D. Ohio
2011).

The Eighth Amendment imposes a duty upon custodians of

inmates to protect them from violence at the hands of other
prisoners.

See Farmer v. Brennan, 511 U.S. 825, 833 (1994).

5

Plaintiff also has asserted claims against the “Kenton County Detention
Center.” However, Defendant asserted, and Plaintiff does not dispute, that
the “Kenton County Detention Center” is not a legal entity capable of being
sued. See Doc.71 at p. 4. As such, Kenton County Fiscal Court is the only
proper government defendant in this action. Moreover, Plaintiff named
“Unknown County Employees John and Jane Does One through Five” in her
Complaint, but she has not requested to amend her Complaint to include any of
the other deputies involved in this incident. The naming of a “John Doe”
does not toll the statute of limitations until such time as a real defendant
may be substituted. See Cox v. Treadway, 75 F.3d 230, 240 (6th Cir. 1996).
Since this action arose in Kentucky, the applicable statute of limitations
for a 42 U.S.C. § 1983 action is one year from the date the action accrues.
See Brown v. Wigginton, Ky., 981 F.2d 913, 914 (6th Cir. 1992); K.R.S. §
413.140(1). Since this claim is clearly beyond one year from the date the
action accrued, any claims against the other deputies involved in this
incident would be barred by the statute of limitations.

6

Since Jackson was a pretrial detainee rather than a convicted inmate,
Plaintiff cannot base a claim on a violation of Jackson’s Eighth Amendment
rights. See Ford v. County of Grand Traverse, 535 F.3d 483, 495 (6th Cir.
2008) (“The Eighth Amendment, by its terms, applies only to post-conviction
inmates.”) (citation omitted).

7

To establish liability under the Eighth Amendment for a
claim based on a failure to prevent harm to a prisoner, a
plaintiff must prove that the defendants acted with “deliberate
indifference” to a substantial risk of serious harm.

Id. at

834.
Defendants are liable for deliberate indifference if there
was a substantial risk of serious harm to the plaintiff,
defendants knew of the risk, and defendants disregarded the
risk.

See Woods v. Lecureux, 110 F.3d 1215, 1222 (6th Cir.

1997).

Deliberate indifference is “a stringent standard of

fault.”

Bd. of the Cnty. Comm'rs of Bryan Cnty. v. Brown, 520

U.S. 397, 410 (1997).

“[A] plaintiff ordinarily cannot show

that a municipality acted with deliberate indifference without
showing that the municipality was aware of prior
unconstitutional actions of its employees and failed to
respond.” Stemler v. City of Florence, 126 F.3d 856, 865 (6th
Cir. 1997).
1. Constitutional Deprivation
Plaintiff asserts that Jackson’s classification as
“Restricted Custody” violated his rights under the Eighth and
Fourteenth Amendments.

See Doc. 80 at p. 4.

Additionally,

Plaintiff asserts that these same rights were violated by
deliberate indifference to Jackson’s safety and security on the
ninth floor of the KCDC.

Id.

Since Plaintiff must assert a
8

constitutional deprivation to succeed on her § 1983 claims, see
Russo, 953 F.2d at 1042, this issue will be examined in regards
to all Defendants.
A. Classification Procedure
Plaintiff asserts that the implementation and use of the
JailTracker system, which classified Jackson as “Restricted
Custody” based upon a 1991 aggravated robbery conviction, led to
Jackson’s placement in a cell with Parker and, ultimately,
Jackson’s death.

See Doc. 80 at pp. 4-6; Doc. 82 at pp. 6-7.

Plaintiff avers that use of this classification system
constituted deliberate indifference to a substantial risk that
Jackson would be murdered by Parker.

Id.

However, Plaintiff

has failed to establish that the classification policy subjected
Jackson to a substantial risk of serious harm or that any
Defendant knew of a substantial risk of harm associated with the
classification policy and chose to disregard it.

Therefore,

Plaintiff cannot establish a constitutional deprivation in
regards to the classification policy.
Classification at the KCDC involves the collection of
objective criteria such as an inmate’s previous institutional
and criminal histories, as well as the inmate’s current charge,
which is then used in conjunction with a computer program known
as JailTracker.

See Sims Depo. at 13-14.

9

Kenton County’s

Jailer, Terence Carl, implemented the JailTracker software.

See

Terence Carl Deposition at 14.
In part, the JailTracker program assesses an inmate’s
criminal history based on whether the inmate has a violent
felony conviction within the past twenty (20) years.
Miller Depo. at 13.

See Sgt.

It is undisputed that Jackson was

classified as “Restricted Custody” based upon a violent felony
conviction from 1991.

See Sims Depo. at 27; see also Doc. 71-

12.
As a result of this classification, Jackson, who was
incarcerated on a misdemeanor falsification charge, was placed
in a cell with five other “Restricted Custody” detainees, three
of which were detained on murder charges.

See Humphrey Depo,

Ex. D.
Plaintiff does not argue that Kenton County’s
classification procedure was unclear or that it was not followed
on this particular occasion.

Rather, Plaintiff asserts that the

use of an objective classification system which allows for a
look-back period of twenty (20) years in regard to violent
felonies creates a substantial risk of serious harm to inmates.
See Doc. 80 at p. 5.
Additionally, Plaintiff asserts that the inability of
Kenton County’s classification procedure to allow for deputies
to use their professional judgment to override the
10

classification similarly creates a substantial risk of serious
harm to inmates.

Id. at p. 6.

To support these contentions, Plaintiff cites to the
American Correctional Association (ACA) Standards and Objective
Jail Classification Systems: A Guide for Jail Administrators.7
See Doc. 80 p. 5-6.

Plaintiff asserts that the ACA Standards

recommend that classification systems should use either a five
(5) or ten (10) year look-back period in regards to prior
violent felony convictions.

Id.

Additionally, Plaintiff

asserts that the text Objective Jail Classification Systems: A
Guide for Jail Administrators recommends that a classification
system should allow for jail staff to use their professional
judgment to override a classification determination.

Id.

Although other courts have recognized that a failure to
classify inmates appropriately is to disregard a substantial
risk of serious harm, those instances generally involved a
defendant’s failure to use objective criteria to classify
inmates.

See Peart, 808 F. Supp. 2d at 1031 (holding that the

defendant’s failure to use objective classification information
when deciding where to house newly arrived inmates created an
issue of material fact as to whether the defendants were
disregarding a substantial risk of serious harm); see also

7

Plaintiff does not provide a proper citation to either of these sources.
Additionally, Plaintiff did not attach any relevant portions of these sources
to her responsive memorandum. Plaintiff’s failure to properly identify these
sources prevents this Court from giving these authorities any weight.

11

Jensen v. Clarke, 94 F.3d 1191 (8th Cir. 1996) (finding that
defendants’ use of subjective assessments rather than use of
objective criteria was to disregard a substantial risk of
serious harm).
In this case, the KCDC uses only objective criteria such as
an inmate’s previous institutional and criminal histories, as
well as the inmate’s current charge, to make a determination of
the inmate’s classification.
Essentially, Plaintiff is asserting that classifying an
inmate based on a twenty-year look-back period for violent
felonies creates a substantial risk of serious harm to an
inmate, but a ten-year look-back period would not.

Moreover,

Plaintiff argues that the inability of the KCDC classification
policy to allow a deputy to override the JailTracker software
and reduce Jackson’s classification similarly created a
substantial risk of serious harm to Jackson.
In addition to the different classification standards
identified by Plaintiff, she also employed the services of
penologist E. Eugene Miller.

See Doc. 71-15.

Similar to the

arguments proffered by Plaintiff, Mr. Miller argues that the
KCDC’s failure to follow the above standards resulted in
Jackson’s murder.

Id.

However, Mr. Miller’s report fails to

address how these differences created a substantial risk of
serious harm to Jackson.
12

The Sixth Circuit has held that “in order to defeat a
motion for summary judgment an expert opinion must be more than
a conclusory assertion about ultimate legal issues.”

Doe v.

Magoffin Cnty. Fiscal Court, 174 F. App'x 962, 974 (6th Cir.
2006) (citing Williams v. Ford Motor Co., 187 F.3d 533, 543 (6th
Cir. 1999) (citation omitted)).

“Simply having experts restate

general facts and announce legal conclusions without any
analysis does not create a genuine issue of material fact.”

Id.

Although Plaintiff has asserted how she believes the
KCDC’s classification policy to be substandard, she has failed
to provide any evidence as to how these alleged shortcomings
created a substantial risk of serious harm.

Just because

Plaintiff’s proposed changes in the KCDC classification policy
would have kept Jackson from encountering Parker does not
necessitate a finding that a failure to implement these changes
created a substantial risk of serious harm.

Without other

empirical evidence, Plaintiff’s conclusory assertions cannot
support a finding that Kenton County’s current classification
system creates a substantial risk of serious harm to inmates.
However, even if Plaintiff was able to show that the use of
this classification system created a substantial risk of serious
harm, there is no indication that Kenton County knew of any risk
associated with its classification procedure or that it
disregarded such risk.
13

Plaintiff has presented no evidence of any prior assaults
or incidents which could be construed as resulting from Kenton
County’s classification procedure.

In fact, Plaintiff has

presented no evidence from which a reasonable juror could
conclude that Kenton County was on notice that its
classification procedure was potentially substandard.

See Hall

v. Hawkins County, TN, No. 2:05-CV-252, 2008 WL 474168, at *5
(E.D. Tenn. Feb. 20, 2008) (granting summary judgment in favor
of the county where no evidence offered by plaintiff raised any
question as to whether defendants were on notice of any prior
assault resulting from the allegedly deficient classification
process).
Further, it should be noted that there is nothing in the
record to indicate that Jackson was exceptionally vulnerable to
attacks by other inmates or that Parker had a history of
institutional violence.

See Hopple Depo. at 14; Sgt. Miller

Depo. at 35; Sims Depo. at 37; Humphrey Depo, Ex. D.

Thus,

Defendants would not have been on notice that placing Jackson in
a cell with Parker subjected Jackson to a substantial risk of
serious harm.

C.f. Greene v. Bowles, 361 F.3d 290, 294 (6th

Cir. 2004) (finding that the plaintiff’s known vulnerability
made her placement with high-security inmates a substantial risk
of serious harm; also finding that placing an inmate with a

14

known proclivity for institutional violence with other inmates
created a substantial risk of serious harm).
Lastly, Plaintiff’s claim fails as she has not shown a
causal relationship between the classification policy and
Jackson’s death.

See Thompson v. Cnty. of Medina, OH, 29 F.3d

238, 242 (6th Cir. 1994) (holding that plaintiffs could not
establish a violation of their Eighth Amendment right to safety
where they provided no evidence of a causal relationship between
the jail’s classification system and their injuries).
Although it is true that Jackson’s classification resulted
in his placement in a cell with Parker, Plaintiff has produced
no other evidence to show that this classification actually
resulted in Jackson’s murder.

Absent additional evidence,

Plaintiff’s conclusory statement that the jail classification
system led to Jackson’s murder is insufficient to establish a
causal relationship.

See Jordan v. City of Detroit, No. 11-CV-

10153, 2012 WL 2526927 *10 (E.D. Mich. June 29, 2012),
reconsideration denied in part, 2012 WL 3583535 (E.D. Mich. Aug.
20, 2012) (holding that summary judgment in favor of the
defendant was proper because plaintiff had done no more than
summarily state that his being housed in the adult population
and subjected to physical violence was a result of the
defendant’s classification system).

15

Therefore, Plaintiff has failed to establish that the
KCDC’s classification policy constituted deliberate indifference
to a substantial risk that Jackson would be murdered by Parker.
Thus, in finding no constitutional deprivation in regards to the
classification policy, Plaintiff’s § 1983 claim against all
Defendants cannot be sustained on that basis.
B. Failure to Act
Next, Plaintiff argues that Deputy Grueser’s inaction after
Jackson approached him about speaking with the Staff Sergeant
constitutes deliberate indifference.

See Doc. 80 at pp. 6-9.

Specifically, Plaintiff asserts that Deputy Grueser’s failure to
remove Jackson from his cell to inquire further about Jackson’s
request to speak with the Staff Sergeant and Deputy Grueser’s
failure to follow up with Jackson personally about his request
later in the evening constitutes deliberate indifference.

Id.

Moreover, Plaintiff argues that the Individual Defendants’
failure to properly supervise Deputy Grueser amounts to
deliberate indifference.

See Doc. 82 at p. 9.

As stated

previously, a defendant acts deliberately indifferent if there
was a substantial risk of serious harm to the plaintiff, the
defendant knew of the risk, and the defendant disregarded the
risk.

See Woods, 110 F.3d at 1222.
There is no indication in the record that Deputy Grueser,

who is not a party, was aware of any substantial risk of serious
16

harm to Jackson.8

Although Parker testified that there was a

physical altercation between him and Jackson earlier in the
evening (see Parker Confession at p. 68-69), there is no
evidence, nor does Plaintiff allege, that any deputy at the KCDC
was aware of this altercation.
Additionally, Parker confirmed Deputy Grueser’s statement
that Jackson only asked to speak with the Staff Sergeant and did
not elaborate on his request.

See Parker Depo. at 12.

When

Deputy Grueser asked Jackson about why he wanted to speak with
the Staff Sergeant, Jackson advised Deputy Grueser that he would
write the Sergeant a note.

Id.; see also Grueser Depo. at 20.

Construing all inferences in a light most favorable to the
nonmoving party, the Court must find that Deputy Grueser failed
to contact Deputy Hopple or Staff Sgt. Miller about Jackson’s
request.
28.

See Hopple Depo. at 21; see also Sgt. Miller Depo. at

However, it is undisputed that Deputy Grueser returned to

cell 921 twice to inquire if Jackson was finished writing the
note.

See Grueser Depo. at 22-25.

8

Penologist E. Eugene Miller concluded that Deputy Grueser failed to
appropriately respond to Jackson’s safety concerns. Doc. 71-15 p. 2.
Miller’s primary basis for this conclusion is an alleged, unsworn statement
given by Jackson’s cellmate Toshawn Sims, wherein Sims allegedly stated that
Jackson originally asked Deputy Grueser to remove him from the cell because
he feared for his individual well-being. Doc. 71-15 p. 2. Defendant Kenton
County argues, and this Court agrees, that the purported statement by Toshawn
Sims is hearsay, and cannot be considered by the Court. Fed. R. Evid.
801(c). It must also be noted that not only does Plaintiff not respond to
Defendant’s hearsay argument, she does not reference Toshawn Sims’ alleged
statement at all in either of her responsive memoranda. See Doc. 80, 82.

17

At approximately 4:00 a.m., Deputy Grueser spoke with
Jackson briefly, but left when he heard loud noises from another
cell.

Id. at 22-23.

At approximately 5:15 a.m., Deputy Grueser

again approached cell 921 to inquire about Jackson’s note, but
Jackson’s cellmate, Toshawn Sims, advised Deputy Grueser that
Jackson no longer needed his assistance.

Id. at 24-25.

Since

the lights were out and he had no suspicion of foul play, Deputy
Grueser accepted Sims’ statement.

Id. at 25.

According to

Parker’s time frame, Jackson’s death had already occurred prior
to Deputy Grueser’s last visit to the cell.

See Parker

Confession at 74-75.
While a reasonable juror may be able to find Deputy
Grueser’s inactions to constitute negligence, a reasonable juror
could not find these inactions to constitute deliberate
indifference.

See Farmer, 511 U.S. at 838 (“[A]n official’s

failure to alleviate a significant risk that he should have
perceived but did not, while no cause for commendation, cannot
under our cases be condemned as the infliction of punishment.”)
Although Deputy Grueser failed to report Jackson’s request to
his Field Training Officer or the Staff Sergeant on duty,
Grueser did not completely disregard Jackson’s request.
Deputy Grueser spoke with Jackson at least twice regarding
his request and reported back to cell 921 about the note a third
time.

Again, there is no evidence during these exchanges that
18

Jackson expressed a concern for his safety.

Since there is no

evidence that Deputy Grueser was subjectively aware of a
substantial risk of harm to Jackson, Grueser’s inactions cannot
be considered deliberate indifference.
However, it is true that warnings from a prisoner himself
are not required when other evidence discloses a substantial
risk of serious harm.

Woods, 110 F.3d at 1224; see also Farmer,

511 U.S. at 848, (“[T]he [prisoner's] failure to give advance
notice [to prison officials] is not dispositive.

Petitioner may

establish respondents' awareness by reliance on any relevant
evidence.”).

Yet, Plaintiff has provided no other evidence

beyond the interaction between Deputy Grueser and Jackson to
support a finding of deliberate indifference.

As stated

previously, there is nothing in the record to indicate that
Jackson was exceptionally vulnerable to attacks by other inmates
or that Parker had a history of institutional violence.

See

Hopple Depo. at 14; Sgt. Miller Depo. at 35; Sims Depo. at 37;
Humphrey Depo, Ex. D.

Additionally, Deputy Grueser testified

that when speaking with Jackson his demeanor seemed “fine.”
Grueser Depo. at 18.

See

Plaintiff has offered no evidence to

dispute this contention.

Thus, there is no other evidence in

the record upon which Plaintiff could establish Deputy Grueser’s
knowledge of a substantial risk of serious harm.

19

Lastly, Plaintiff also argues that the fact that Jackson’s
body was not discovered until after lunch the following day
should be considered as evidence of deliberate indifference
towards Jackson.

See Doc. 80 at p. 9.

As stated previously,

there is no doubt that the deputies who were tasked with
conducting a head count on cell 921 and serving meals to this
cell failed to follow proper KCDC procedure.
14, 17.

See Stilt Depo. at

However, there is also no doubt that there is no causal

relationship between these deficiencies and Jackson’s death.
See Farmer, 511 U.S. at 834 (stating that for liability to
attach a prison official’s act or omission must result in the
denial of constitutional rights) (citation omitted).
Therefore, Plaintiff has failed to establish that Deputy
Grueser’s actions constituted deliberate indifference to a
substantial risk that Jackson would be murdered by his cellmate,
Parker.

Thus, in finding no constitutional deprivation in

regards to Deputy Grueser’s actions, Plaintiff’s § 1983 claim
against all Defendants cannot be sustained on that basis.
The Court notes again that Deputy Grueser was not even a
party to this litigation, since he was not substituted within
the limitations period, or at any other time, for one of the
“John Does.”

See Cox, 75 F.3d at 240.

However, the Court

further notes that since Deputy Grueser was not guilty of

20

deliberate indifference, a fortiori, the supervisors who were
sued cannot be held liable.
2. Respondeat Superior
Liability under a § 1983 claim cannot be based on
respondeat superior.

Monell v. Dep't of Soc. Services of City

of New York, 436 U.S. 658, 691 (1978).

Instead, to impose

supervisory liability, there must be a showing that defendants
“either encouraged the specific incident or in some other way
directly participated in it.” Bremiller v. Cleveland Psychiatric
Inst., 879 F. Supp. 782, 793 (N.D. Ohio 1995) (citing Hays v.
Jefferson Cnty., 668 F.2d 869 (6th Cir. 1982)).

“At a minimum,

a § 1983 plaintiff must show that a supervisory official at
least implicitly authorized, approved or knowingly acquiesced in
the unconstitutional conduct of the offending subordinate.”
Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir. 1984).
Since Plaintiff cannot establish a constitutional
deprivation as required for a claim under § 1983, liability
against the Individual Defendants based upon their supervisory
status similarly cannot lie.
3. Plaintiff’s State Law Claims
Plaintiff concedes that both Kenton County and the
Individual Defendants are immune from liability for any state
law claims under the doctrine of qualified immunity.
80 at p. 11; Doc. 82 at p. 10.

Therefore, Plaintiff’s state law
21

See Doc.

claims against Kenton County and the Individual Defendants for
negligent supervision and wrongful death are dismissed.
4. Wrongful Death Claim against Marion Lawson Parker, III
Pursuant to 28 U.S.C § 1367(c)(3), the Court declines to
exercise jurisdiction over Plaintiff’s remaining state law claim
against Marion Lawson Parker, III, and, thus, those claims will
be dismissed without prejudice.
Therefore, having heard the parties, and the Court being
sufficiently advised,
IT IS ORDERED that Defendants’ motions for summary judgment
(Docs. 70 & 71) be, and are hereby, GRANTED.

Counts one, two,

three, four, and five as alleged against Defendants Kenton
County Detention Center, Kenton County Fiscal Court, Kenton
County Commissioners, Terry Carl, G. Scott Colvin, Kim Roberts,
and Terri Portwood are hereby DISMISSED WITH PREJUDICE.

The

remaining state law claim against Defendant Marion Lawson
Parker, III, is hereby DISMISSED WITHOUT PREJUDICE.
judgment shall enter concurrently herewith.
This 19th day of December, 2012.

TIC: 11 min.
22

A separate