Barberick v. Florence Fire Department EMT, Paul Hilmer et al

Filing 30

MEMORANDUM OPINION & ORDER: 1) The Motions to Dismiss on the basis of qualified immunity as to Defendants Ellison, Hilmer, Dover, and Steward ( 20 , 23 , 24 ) are hereby DENIED without prejudice to renewal at the summary judgment stage; 2 ) Defendant Allens Motion to Dismiss ( 20 ) is hereby GRANTED; 3) A discovery deadline is hereby set for 12/31/2017; 4) A dispositive motions deadline is hereby set for 1/31 2018. Signed by Judge William O. Bertelsman on 6/27/2017.(ECO)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION
AT COVINGTON
CIVIL ACTION NO. 2:2016-CV-199 (WOB-CJS)
JESSICA BARBERICK, AS ADMINISTRATRIX OF
ESTATE OF FRANK BARBERICK
JESSICA BARBERICK, AS MOTHER AND NEXT
FRIEND OF L.B., A MINOR

VS.

PLAINTIFFS

MEMORANDUM OPINION AND ORDER

ROGER ALLEN
BRETT DOVER
JOSHUA ELLISON
PAUL HILMER
MIKE STEWARD

DEFENDANTS

This is a civil rights action, in which Plaintiffs bring claims pursuant to 42 U.S.C. § 1983
for claims under the Eighth Amendment through the Fourteenth Amendment’s Due Process
Clause. The case also includes pendant state law claims. The matter now comes before the Court
on Defendants’ Motions to Dismiss. (Docs. 20, 23, 24). Having reviewed the matter, and being
sufficiently advised, the Court now issues this Memorandum Opinion and Order.
I. Facts 1
In the fall of 2015, Frank Barberick was 45 years old, divorced, and had at least two
daughters. (Doc. 16). On approximately November 4, 2015, Florence Police and Florence Fire
Department paramedics 2 went to an apartment Barberick shared with his mother and assisted
Barberick after he attempted to intentionally overdose on prescription pills. (Id. at 126).

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2

All facts in this case are drawn from Doc. 16, the Plaintiffs’ Amended Complaint.
It is not clear from the record who the first-responders were on November 4, 2015, and whether they were
the same as the individuals who responded on November 16, 2015.

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Twelve days later, on November 16, 2015, dispatch received a 911 hang-up call from the
same apartment. (Id.). The dispatcher informed those on the radio about the suicide attempt at that
residence 12 days earlier. (Id.).
Boone County Sheriff’s Deputy Defendant Brett Dover was the first to arrive at the
apartment. (Id.). Barberick’s mother immediately informed Dover that her son had swallowed two
handfuls of pills. (Id.). Dover then asked Barberick what he had taken. Barberick said he had
taken Elavil, 3 as his doctor prescribed. (Id.).
Barberick’s mother then brought out two pills she had found on the floor, which Barberick
identified as a muscle relaxer and the generic name for Elavil. (Id. at 127). Dover noticed
Barberick slurring his speech, appearing “extremely intoxicated,” and unable to make sense. (Id.
at 128-31). He spoke with Barberick’s mother again, and she reiterated that her son “had taken a
handful of the pills about half an hour to forty-five minutes” before Dover arrived. (Id. at 127).
This prompted Dover to radio dispatch for the first time, informing dispatch of Barberick’s name
and identification information. (Id.).
After radioing dispatch, Dover went back to speaking with Barberick. While Dover and
Barberick spoke, Barberick’s mother was nearby calling Barberick’s ex-wife. (Id.). Barberick had
spoken with his ex-wife earlier that day, and Barberick’s mother wanted to know whether
Barberick said goodbye. (Id.). As he heard his mother speaking to his ex-wife, Barberick requested
the opportunity to call his daughter. (Id.).
The conversation turned back to the pills Barberick allegedly consumed. After initially
refusing to say how many pills he had taken, Barberick admitted he had taken “maybe two or
three” Elavil. (Id. at 128).

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Elavil is a central nervous system depressant. (Doc. 16, Page ID# 129).

2

After this admission, Barberick called his daughter. (Id.). As Barberick spoke to his
daughter nearby, his mother told Dover about her son’s November 4 suicide attempt and said she
believed “the same thing” was happening at the moment. (Id.).
This prompted Dover to radio dispatch for the second time. (Id.). He told dispatch that
Barberick had attempted suicide on November 4, and that Barberick’s mother believed her son
was doing the same thing now and appeared “extremely intoxicated.” (Id.).
Dover ended the dispatch call and went back to speaking with Barberick. This time they
discussed alcohol consumption. Barberick said he had consumed two or three beers. (Id.).
Barberick’s mother supplemented this admission by saying Barberick drank vodka. (Id.).
Once again, the conversation returned to pill consumption. Barberick now admitted that
he had taken some Xanax, which he had not previously mentioned. (Id. at 129). Dover asked how
long it had been since Barberick took these pills. Barberick said it was approximately two hours,
but his mother said it was at most an hour. (Id.).
The ambulance containing Florence Fire Department EMTs Defendants Paul Hilmer and
Joshua Ellison (EMTs) had arrived by this point, and Dover asked Barberick to come downstairs
to have the EMTs examine him. (Id.). Barberick refused. (Id.). So Dover arrested Barberick on
an unrelated outstanding warrant and placed him in handcuffs. (Id.). Even after he was in
handcuffs, Barberick still refused to go downstairs, and attempted to remain on a couch. (Id. at
129-30). The EMTs thus came upstairs to examine Barberick. (Id. at 130). Florence Police
Department Officer Defendant Mike Steward accompanied them. (Id.).
Steward and the EMTs found Barberick lying face-down on a couch in handcuffs. (Id.).
One of the EMTs 4 borrowed a flashlight from Dover and shone it directly into Barberick’s eyes

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The Complaint does not identify whether it was Hilmer or Ellison.

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for a total of seven seconds. (Id.). The EMT then stood up and reported to the room that now
contained the other EMT, Dover, a layperson who was accompanying Dover, Steward, and
Barberick’s mother that, “His pupils, I mean he’s nothing, no narcotics.” (Id.) This meant the
EMTs thought Barberick was merely drunk. (Id.). They decided not to provide any further
treatment. (Id.).
Barberick could not walk under his own power at this point, so one of the EMTs, Steward,
and Dover helped Barberick down the stairs and into Dover’s cruiser. (Id.). Once Barberick was
in the back of the cruiser, Dover and Steward briefly discussed whether the Boone County
Detention Center would accept Barberick in his current condition. (Id.). They determined that it
would be best if Steward took Barberick to the jail, since the arrest was within Florence city limits,
and Steward was a Florence Police Officer. (Id. at 130-31). Steward, Dover, and Florence Police
Department Lieutenant Defendant Roger Allen then moved Barberick from Dover’s cruiser to
Steward’s cruiser. (Id. at 131). Since Barberick had lost most of his motor function by this point,
the officers had to place him across the back seat of Steward’s cruiser, with his feet draped into
the front passenger seat. (Id.). As Steward drove, he claims he heard Barberick “snoring or
snoozing.” (Id.).
Steward arrived at the jail and requested assistance moving Barberick because he was
“intoxicated.” (Id.). When Steward and jail personnel opened the cruiser door, they immediately
realized that Barberick was unresponsive. (Id.). Jail personnel attempted CPR and requested
paramedics. (Id.). Some paramedics did arrive, and noted that there was an earlier dispatch call
because Barberick “was drunk and had taken a handful of pills.” (Id.). Ultimately, though, the
paramedics were unable to resuscitate Barberick and he died. (Id. at 132). The autopsy listed the
cause of death as “combined drug intoxication.” (Id.).

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II. Analysis
A.
Barberick’s estate sued the two EMTs and three law enforcement officers involved under
42 U.S.C. § 1983. All five Defendants raise a qualified immunity defense.

“In § 1983

constitutional torts like this one, qualified immunity prevents government officials from being held
liable if (1) the officers did not violate any constitutional guarantees or (2) the guarantee, even if
violated, was not ‘clearly established’ at the time of the alleged misconduct.” Arrington-Bey v.
City of Bedford Heights, Ohio, ___ F.3d ___, 2017 WL 2432389, at *3 (6th Cir. Feb. 24,
2017)(citing Pearson v. Callahan, 555 U.S. 223, 232 (2009)). Thus, this Court must find for
Barberick on both prongs of the qualified immunity test for him to make out a § 1983 claim against
each Defendant.
B.
Before addressing each Defendant’s qualified immunity claim, the Court must initially
decide whether Barberick was in custody at all relevant times of this case. The custody question
is important because officials generally do not have a duty to render competent medical care to
those they rescue. Peete v. Metro. Gov’t. of Nashville and Davidson Cty., 486 F.3d 217, 223 (6th
Cir. 2007). Yet, “[t]here are two exceptions to this rule, instances where the state is obligated to
aid or protect an individual from further danger: 1) the custody exception and 2) the state created
danger exception.” Id. (internal citations and quotations omitted).
Thus, if a Plaintiff like Barberick was in custody, the state must come to his aid. The Sixth
Circuit has noted that a seizure for custody purposes is an “intentional interference with a person’s
liberty by physical force or a show of authority that would cause a reasonable person consciously

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to submit.” Id. at 220. If police officers are simply trying to assist a person undergoing a medical
emergency, that would not be placing the person in custody. Id. at 222 (holding a man was not in
custody when police attempted to assist him during an epileptic seizure). But the Sixth Circuit
differentiates that situation from when police arrest a person and place him in handcuffs. Id. (citing
Champion v. Outlook Nashville, Inc., 380 F.3d 893, 901-02 (6th Cir. 2004)).
Here, Dover placed Barberick in handcuffs and arrested him for an outstanding warrant.
(Doc. 16, PageID# 129). That occurred before the two EMTs arrived to treat Barberick. (Id.).
Thus, Barberick was in custody at all relevant times, and this Court will consider him a pretrial
detainee. 5 See Peete, 486 F.3d at 221.
C.
Since Barberick was a pretrial detainee, and since he suffered a medical injury while in
police custody, this Court must analyze the case under the Eighth Amendment’s deliberate
indifference standard. 6 Farmer v. Brennan, 511 U.S. 825, 838 (1994). In Farmer, the Supreme
Court found that prison officials were deliberately indifferent 7 to a known risk to a transgender
prisoner by placing the prisoner in a male federal prison after multiple prior incidents. Id. at 828.

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6

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The parties either expressly or implicitly agree to this analysis. (Doc. 20, PageID# 252; Doc. 23-1,
PageID# 300 n. 2; Doc. 29, PageID# 392).
The Supreme Court has never applied the deliberate indifference test to a pretrial detainee under the
Fourteenth Amendment. See Catherine T. Struve, The Conditions of Pretrial Detention, 161 U. Pa. L.
Rev. 1009, 1012 (2013). But the Sixth Circuit has adopted Farmer’s deliberate indifference standard for
pretrial medical detainee claims, see Spears v. Ruth, 589 F.3d 249, 254 (6th Cir. 2009), and for claims
resulting from pretrial detainee suicide. See Gray v. City of Detroit, 399 F.3d 612, 616 (6th Cir. 2005);
see also Kyla Magun, Note, A Changing Landscape for Pretrial Detainees? The Potential Impact of
Kingsley v. Hendrickson on Jail-Suicide Litigation, 116 Colum. L. Rev. 2059, 2072-73 n. 96 (2016).
Therefore, the Eighth Amendment deliberate indifference jurisprudence applies to pretrial detainees
through the Fourteenth Amendment. See Blackmore v. Kalamazoo Cty., 390 F.3d 890, 895 (6th Cir.
2004); Weaver v. Shadoan, 340 F.3d 398, 410 (6th Cir. 2003).
The deliberate indifference standard means the officers must prevent an “unnecessary and wanton
infliction of pain.” Terrance v. Northville Regl. Psychiatric Hosp., 286 F.3d 834, 843 (6th Cir.
2002)(quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)); see also Brooks v. Celeste, 39 F.3d 125, 129
(6th Cir. 1994).

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In defining the deliberate indifference standard, the Court held that an “official cannot be found
liable . . . unless the official knows of and disregards an excessive risk to [the Plaintiff’s] health or
safety; the official must both be aware of facts from which the inference could be drawn that a
substantial risk of serious harm exists, and he must also draw the inference.” Id. at 837.
This holding clarified that the deliberate indifference standard has both an objective and
subjective 8 component. Id. at 838. Therefore, to prove that the Defendants in this case were
deliberately indifferent to Barberick’s medical needs, Plaintiffs must show the officials were both
objectively and subjectively aware of the risk of serious harm, and that they failed to act
appropriately in response.
D.
With the Farmer test in mind, it is clear that Plaintiffs’ claims against Ellison, Hilmer,
Dover, and Steward require discovery to provide context for this fact-intensive analysis. As the
Sixth Circuit has held, “it is generally inappropriate for a district court to grant a 12(b)(6) motion
to dismiss on the basis of qualified immunity.” Wesley v. Campbell, 779 F.3d 421, 433 (6th Cir.
2015). The reasoning for this rule is that “it is often perilous to resolve a Rule 12(b)(6) motion on
qualified immunity grounds given the fact development often needed to decide whether the state
official violated clearly established federal law.” Singleton v. Cmmw. of Kentucky, 843 F.3d 238,
242 (6th Cir. 2016)(deciding a case at the motion to dismiss stage because it merely involved the

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In the decades since Farmer, the Sixth Circuit has clarified the test for the subjective knowledge, laying
out a three-prong test:
First, the plaintiff must show that the official subjectively perceived the
facts that gave rise to the inference of the risk. Then, the plaintiff must
show that the official actually drew the inference, and, importantly, not
just that he or she should have done so. Finally, the plaintiff must show
that the official consciously disregarded the perceived risk.
Cooper v. Cty. of Washtenaw, 222 F. App’x. 459, 465–66 (6th Cir. 2007)(internal quotations and citations
omitted); see also Weaver v. Shadoan, 340 F.3d 398, 410 (6th Cir. 2003).

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Supremacy Clause, and factual development was unlikely to alter that legal analysis); see also
Evans–Marshall v. Bd. of Educ. of Tipp City Exempted Village Sch. Dist., 428 F.3d 223, 235 (6th
Cir. 2005) (Sutton, J., concurring)(noting the fact-intensive nature of some Constitutional tests
make it “difficult for a defendant to claim qualified immunity on the pleadings before discovery”).
This Court has recently applied that principle, as well. Libertarian Natl. Comm., Inc. v. Holiday,
3:14-cv-63, 2016 WL 482325, at *4–6 (E.D. Ky. Feb. 5, 2016); S.R. v. Kenton County Sheriff’s
Off., 2:15-cv-143, 2015 WL 9462973, at *6 (E.D. Ky. Dec. 28, 2015).
A Farmer analysis for an Eighth Amendment violation is extremely fact-dependent. See,
e.g., Perez v. Oakland Cty., 466 F.3d 416 (6th Cir. 2006). Because the Plaintiffs’ complaint makes
out at least a plausible claim for relief on the § 1983 claims against Ellison, Hilmer, Dover, and
Steward, 9 this is the type of case in which qualified immunity is best addressed at summary
judgment, rather than a motion to dismiss. See Gavitt v. Born, 14-12164, 2015 WL 5013844, at
*9 (E.D. Mich. Aug. 24, 2015). The Court will thus deny Defendants’ Motions to Dismiss without
prejudice so the parties can conduct discovery on the multitude of outstanding factual questions. 10
See S.R., 2015 WL 9462973, at *6.
E.

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Based on the facts in the complaint, discovery could ultimately show that the EMTs violated a pretrial
detainee’s right to receive medical care. See, e.g., Perez, 466 F.3d at 428. Discovery could also reveal
that Dover and Steward violated their duty to assure a pretrial detainee receives adequate medical
assistance for a known condition. See Smith v. Cty. of Lenawee, 505 F. App’x. 526, 532 (6th Cir. 2012);
Border v. Trumbull Cty. Bd. Of Comm’rs, 414 F. App’x. 831, 838-39 (6th Cir. 2011); Harrison v. Ash,
539 F.3d 510, 520 (6th Cir. 2008).
10
To name just a few of those questions, it would be helpful to know: (a) what each Defendant knew, and
when he knew it; (b) whether the EMTs followed normal medical procedures for determining whether a
person is under the influence of narcotics; (c) whether Dover and Steward actually observed the EMTs
treatment of Barberick on the couch in the apartment; (d) the qualifications of the EMTs; (e) the
familiarity and history between the EMTs and the law enforcement officers; (f) the drugs Barberick took,
their effect on the human body, and how quickly those drugs take effect; and (g) whether, given the drugs
in his system and the timing of the events, Barberick’s life could have been saved.

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Though discovery is required to adequately address the claims against Ellison, Hilmer,
Dover, and Steward, the factual allegations in the Complaint are sufficient for the Court to decide
that there is not a plausible claim against Allen. As Allen points out, the general rule is that if an
official is aware that trained medical professionals have treated a detainee, the official is justified
in relying on the judgment of those medical professionals. See Spears v. Ruth, 589 F.3d 249, 255
(6th Cir. 2009); see also Mitchell v. Hininger, 553 F. App’x. 602, 607 (6th Cir. 2014). The Sixth
Circuit thus holds that “absent a reason to believe (or actual knowledge) that [medical
professionals] are mistreating (or not treating) a [detainee], a non-medical [] official . . . will not
be chargeable with the Eighth Amendment scienter requirement of deliberate indifference.” Smith
v. Cty. of Lenawee, 505 F. App’x. 526, 532 (6th Cir. 2012)(internal quotations omitted). When
that medical care is not obviously cursory or deficient, the official can rely on it without accruing
liability. Id. at 534.
Here, Allen did not witness any of the EMTs’ treatment of Barberick. He only arrived on
the scene after an EMT, Steward, and Dover had carried Barberick out of the apartment, and his
only role was assisting with the transfer of Barberick from one vehicle to another. (Doc. 16,
PageID# 131). Therefore, Allen did not witness any potentially “inadequate” treatment by the
EMTs, Harrison, 539 F.3d at 520, and he could reasonably rely on their assessment that Barberick
was merely drunk. Smith, 505 F. App’x at 532. He is therefore entitled to qualified immunity.
The Court will grant his Motion to Dismiss (Doc. 20) and the claims against him shall be dismissed
with prejudice.
F.
Barberick’s daughter, through her guardian, also brings a loss of consortium claim under §
1983. (Count VI, Doc. 16, PageID# 145). The Sixth Circuit has stated that:

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In the Sixth Circuit, a section 1983 cause of action is entirely
personal to the direct victim of the alleged constitutional tort.
Accordingly, only the purported victim, or his estate’s
representative(s), may prosecute a section 1983 claim; conversely,
no cause of action may lie under section 1983 for emotional distress,
loss of a loved one, or any other consequent collateral injuries
allegedly suffered personally by the victim’s family members.
Claybrook v. Birchwell, 199 F.3d 350, 357 (6th Cir. 2000)(internal citations omitted)(allowing a
suit because the decedent’s children brought the suit in their capacity as co-administrators of the
decedent’s estate).
Therefore, Barberick’s daughter is barred from bringing a loss of consortium claim for
damages on the § 1983 claims. This Court will grant Defendants’ Motions to Dismiss the loss of
consortium claims as to any § 1983 claim. 11
G.
Plaintiffs also bring a claim against Hilmer and Ellison for medical malpractice under
Kentucky law. (Count V, Doc. 16, PageID# 144). In Kentucky, a public official is entitled to
qualified official immunity if he performs (1) a discretionary act, (2) in good faith, and (3) within
the scope of his authority. Yanero v. Davis, 65 S.W.3d 510, 522 (Ky. 2001). But a public official
does not get qualified official immunity if he negligently performing a ministerial function, which
is a duty that is “absolute, certain, and imperative, involving mere execution of a specific act based
on fixed and designated facts.” Autry v. W. Ky. Univ., 219 S.W.3d 713, 717 (Ky. 2007). Notably,
even a ministerial act requires some discretion to perform. Marson v. Thomason, 438 S.W.3d 292,
297 (Ky. 2014)(citing 63C Am.Jur.2d Public Officers and Employees § 319); see also Yanero, 65

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This conclusion does not affect any loss of consortium claim that Barberick’s daughter may have deriving
from her Kentucky state law claims for wrongful death (Count V, Doc. 16, PageID# 144-45), which she
asserts only against the EMTs. See KY. REV. STAT. ANN. § 411.145; Giuliani v. Guiler, 951 S.W.2d 318,
323 (Ky. 1997), as modified on denial of reh’g (Oct. 2, 1997).

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S.W.3d at 522.
Like the § 1983 claims against Hilmer and Ellison, this medical malpractice claim is factintensive, and similarly requires discovery before an informed decision can be made on qualified
official immunity. As it stands, it is not clear whether Hilmer and Ellison were carrying out a
ministerial act by simply conducting an accepted medical procedure for assessing whether a person
was under the influence of narcotics. See Gould v. O'Bannon, 770 S.W.2d 220, 222 (Ky.
1989)(holding that “[t]he administration of medical care is a ministerial function” if it is a matter
of conducting a defined procedure); see also Pauly v. Chang, 498 S.W.3d 394, 406 (Ky. App.
2015), as modified (Dec. 23, 2015), review denied (Sept. 15, 2016)(noting that medical
professionals who are treating a patient are performing a ministerial function); Blue v. Pursell, 793
S.W.2d 823, 825 (Ky. App. 1989)(remanding for trial court to apply Gould’s rule to a medical
professional).
While Plaintiffs have alleged a plausible claim for medical malpractice, the Court cannot
adjudicate the EMTs’ qualified official immunity defense without further factual development.
The Court will therefore deny the Motion to Dismiss these claims without prejudice.
III. Conclusion
Therefore, having reviewed the matter, and being otherwise advised, IT IS ORDERED
that:
1. The Motions to Dismiss on the basis of qualified immunity as to Defendants Ellison,
Hilmer, Dover, and Steward (Docs. 20, 23, 24) are hereby DENIED without prejudice to
renewal at the summary judgment stage;
2. Defendant Allen’s Motion to Dismiss (Doc. 20) is hereby GRANTED.
3. A discovery deadline is hereby set for December 31, 2017;

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4. A dispositive motions deadline is hereby set for January 31, 2018.
This 27th day of June, 2017.

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