Love v. Franklin County, Kentucky et al

Filing 16

OPINION & ORDER: 1) 10 Motion to Dismiss the Amended Complaint is DENIED. 2) 8 Motion to Dismiss the Complaint is DENIED AS MOOT. Signed by Judge Gregory F. VanTatenhove on 3/27/2019. (SCD)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION
FRANKFORT

KELSEY LOVE,
Plaintiff,
V.
FRANKLIN COUNTY, KENTUCKY,
et al.,
Defendants.

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Civil. No. 3:18-cv-00023-GFVT

OPINION
&
ORDER

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This is one of two recent cases involving pre-trial detention at the Franklin County
Regional Jail.1 The Plaintiff in this matter, Kelsey Love, gave birth alone and unassisted while in
custody at the jail. The Defendants seek to resolve this case by way of a Motion to Dismiss. [R.
10.]2 This requires the Court to consider, for a first time, the teachings of the Supreme Court in
Kingsley v. Hendrickson, a Fourth Amendment case, in the context of the Eighth and Fourteenth
Amendments. 135 S. Ct. 2466 (2015). Ultimately, for the reasons set out below, the motion will
be DENIED.
I
On May 15, 2017, Plaintiff Kelsey Love was incarcerated in Franklin County Regional
Jail (FCRJ). [R. 9 at 5.] Love, a pretrial detainee, was eight months pregnant at the time. Id.

1

See Griffith v. Franklin County, Kentucky, et al., 3:16-cv-00077.
Before Love filed her amended complaint, Defendants sought to dismiss her initial complaint. [R. 8.] That motion
was mooted by the filing of the amended complaint; therefore, the Court will only address the arguments as stated in
Defendants’ later Motion to Dismiss. [R. 10.]
2

Because of her pregnancy, Defendants were under orders to observe Love every ten minutes.
The Inmate Observation Record Love filed with Love’s complaint, if believed, indicates the
Defendants checked on her semi-regularly throughout May 15, 2017 and into the morning of
May 16, 2017, though not every ten minutes, as instructed. [R. 1-1.] Love went into labor
sometime during May 15, 2017. Somehow, despite frequent looking-ins, Love was allowed to
give birth, unassisted and without medical care, in her jail cell. [R. 9 at 6.] When Defendant
Phillips entered Love’s cell at approximately 8:04 a.m. on May 16, 2017, Love’s blood covered
the floor. Love had completed labor and delivered a child. Only then was Love transported to
Franklin Regional Medical Center. [R. 1-1.]
Love filed this action on May 7, 2018 and amended her complaint on June 9, 2018. Love
named Franklin County, Rick Rogers, Michael Phillips, Anthony Pullen, Sergeant Harrod and
four John Doe deputy jailers (collectively “individual Defendants”) [R. 1; R. 9.] As amended,
Love’s complaint alleges various causes of action under both 42 U.S.C. § 1983 and Kentucky
common law. [R. 9.] Namely, deliberate indifference, supervisory liability, Monell liability, and
common law negligence. In addition, Love puts forth a new theory of liability under the
Fourteenth Amendment, which she calls “intentional decision.” [R. 9 at 8.] With this Count, she
urges this Court to adopt a new standard for pretrial detainee medical care claims based on
Kingsley. The Defendants have moved for dismissal under Rule 12(b)(6). [R. 10.] Defendants
argue that Love has not pleaded the elements of her claims specifically enough to survive
dismissal, and that even if she had, they are protected by qualified immunity. Id. For the
following reasons, Defendants’ Motion to Dismiss is DENIED.

2

II
A
A motion to dismiss pursuant to Rule 12(b)(6) tests the sufficiency of a plaintiff’s
complaint. In reviewing a Rule 12(b)(6) motion, the Court “construe[s] the complaint in the
light most favorable to the plaintiff, accept[s] its allegations as true, and draw[s] all inferences in
favor of the plaintiff.” DirecTV, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007) (citation
omitted). The Court, however, “need not accept as true legal conclusions or unwarranted factual
inferences.” Id. (quoting Gregory v. Shelby County, 220 F.3d 433, 446 (6th Cir. 2000)). The
Supreme Court explained that in order “[t]o survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its
face.’” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 570 (2007)). See also Courier v. Alcoa Wheel & Forged Products, 577 F.3d 625,
629 (6th Cir. 2009).
Moreover, the facts that are pled must rise to the level of plausibility, not just possibility;
“facts that are merely consistent with a defendant’s liability . . . stop[ ] short of the line between
possibility and plausibility.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 557 (2007)). According to the Sixth Circuit, “[a] claim has
facial plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing
Twombly, 550 U.S. at 556).
B
Love alleges that the individual Defendants at FCRJ violated her constitutional rights by
denying her medical care when she was in labor. [R. 1.] Such allegations are properly brought

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under 42 U.S.C. § 1983. Section 1983 does not create substantive rights but, rather, “provides a
remedy for deprivations of rights secured by the Constitution and laws of the United States....”
Lugar v. Edmondson Oil Co., 457 U.S. 922, 924 (1982); Mertik v. Blalock, 983 F.2d 1353, 1359
(6th Cir.1993). “To state a claim under § 1983, a plaintiff must allege the violation of a right
secured by the Constitution and laws of the United States and must show that the alleged
deprivation was committed by a person acting under color of state law.” West v. Atkins, 487 U.S.
42, 48 (1988). “The first step in any such claim is to identify the specific constitutional right
allegedly infringed.” Albright v. Oliver, 510 U.S. 266, 271 (1994) (citing Graham v. Connor,
490 U.S. 386, 394 (1989) (additional citations omitted)).
The Constitution guarantees “a right to adequate medical treatment” for both convicted
prisoners and pretrial detainees. Estelle v. Gamble, 424 U.S. 97 (1976). Until recently, the
extent of this right has been the same for pretrial detainees and convicted prisoners. To succeed
on an action for deliberate indifference to medical needs, plaintiffs have been required to show:
(i) an objectively substantial risk of serious harm, and (ii) that the jail or county officials were
“subjectively aware of the risk.” Harbin v. City of Detroit, 147 F. App'x 566, 570 (6th
Cir.2005). The Supreme Court, however, signaled in Kingsley that this universal test for both
pretrial detainees and convicted prisoners’ claims was misguided. Kingsley v. Hendrickson, 135
S.Ct. 2466 (2015). The Court’s holding suggests that pretrial detainees no longer need to prove
that the defendant had actual knowledge to succeed on the second prong of the deliberate
indifference test. Instead, a pretrial detainee need only show that the defendants “recklessly
failed to act with reasonable care to mitigate the risk that the condition posed to the pretrial
detainee even though the defendant-official knew, or should have known, that the condition
posed an excessive risk to health or safety.” Bruno v. City of Schenectady, 727 Fed.Appx. 717,

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720 (2018). That is, a pretrial detainee-plaintiff can succeed by pointing only to objective facts
and without proving the defendant’s mindset.
While Kingsley concerned only a pretrial detainee’s Fourth Amendment excessive force
claim, its holding has implications on all pretrial detainee’s claims. In Kingsley, the Court only
required the pretrial detainee show that “the force purposely or knowingly used against him was
objectively unreasonable.” Kingsley, 135 S.Ct. at 2473. To support a less stringent test, the
Court cited: (i) precedent; (ii) workability; and (iii) the greater protections afforded by the
Fourteenth Amendment. Id. These rationales extend to pretrial detainee claims for deliberate
indifference. The court explains each in turn.
First, precedent supports using an objective test for pretrial detainee’s claim of deliberate
indifference. Kingsley itself was not focused exclusively to excessive force precedent. Id. To
the contrary, the Court looked at challenges by pretrial detainees generally—identifying a
challenge to double-bunking. Id. Only one conclusion can be drawn from the wide-net cast by
the Court: its reasoning was not meant to be constrained to excessive force claims. Indeed, a
challenge to double-bunking provides a closer analogue to a deliberate indifference claim than it
does to an excessive force claim. Id. Unlike an excessive force claim, which focuses on the
direct infliction of punishment, a conditions of confinement claim highlights the failure to
provide a necessity. Id. Likewise, deliberate indifference claims seek damages for a failure to
provide something necessary: health care. Richmond v. Huq, 885 F.3d 929 (6th Cir. 2018).
Therefore, the Court’s use of a pretrial double-bunking case supports an objective test for
deliberate indifference to medical need claims.
Yet, this Court need not rely on simply reading the tea leaves of precedent. The Court in
Kingsley used broad language to convey its holding. Focusing on pretrial detainees generally,

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the Court reported that, to succeed, a pretrial detainee only needs to show that the government’s
actions were not “rationally related to a legitimate nonpunitive government purpose” or that the
actions “appear excessive in relation to that purpose.” Such language cannot be mistaken;
Kingsley is meant to apply to all pretrial detainees. Miranda v. County of Lake, 900 F.3d 335,
351 (7th Cir. 2018); Castro v. County of Los Angeles, 833 F.3d 1060, 1070 (9th Cir. 2016).
Second, applying an objective standard to claims of deliberate indifference is
workable. Experience belies any concerns that an objective standard will permit illegitimate
claims to succeed. Darnell v. Pineiro, 849 F.3d 17, 36 (2nd Cir. 2017). Prior to Farmer, some
courts in the Second Circuit used an objective test. Id. During this time the number of claims a
court saw was not dependent on the test used. Id. And, in any event, the Prison Litigation
Reform Act stands as a backstop against vexatious or illegitimate claims made by prisoner
litigants. Kingsley, 135 S.Ct. at 2466.
Likewise, concerns that prison officials will lose their ability to maintain order and
institutional security are simply unfounded. The objective standard still requires recklessness,
not simple negligence. As a result, officers will not be handicapped in their ability to make
quick judgments under unfavorable conditions. And, to the extent that illegitimate claims
survive, Kingsley recognized that this factor is not enough to apply a subjective test. Darnell,
849 F.3d at 36. Constitutional rights do not cede to such rare occurrences or practical
considerations.
Third, the Fourteenth Amendment affords pretrial detainees greater protections than those
afforded to convicted prisoners by the Eighth Amendment. Miranda, 900 F.3d at 352. Unlike
convicted prisoners, a pretrial detainee cannot be punished at all. Id. The Eighth Amendment,
with its focus on impermissible punishment, merely sets the baseline of treatment. Id. A pretrial

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detainee is guaranteed more. Id. Because they are held prior to a determination of guilt, they are
presumed innocent. Punishment is not appropriate. Id. at 350. Since punishment is not the focus
for evaluating liability, the testing of a claim must focus on objective conditions—not the
mindset of the defendant. Id. at 353.
Defendants point out that this Court is bound by Sixth Circuit precedent. Of course they
are correct, but the Sixth Circuit has not yet had occasion to consider whether the current
deliberate indifference standard as applied to pretrial detainees ought to be amended in light of
Kingsley. See Winkler v. Madison Cnty., 893 F.3d 877, 890 (6th Cir. 2018); Hopper v. Phil
Plummer, 887 F.3d 744, 756 (6th Cir. 2018) (forfeited objective test at magistrate stage); Bays v.
Montmorency Cnty., 874 F.3d 264, 268 (6th Cir. 2017) (same); Brown v. Chapman, 814 F.3d
436, 444 (6th Cir. 2016) (same); Baynes v. Cleland, 799 F.3d 600, 618 (6th Cir. 2015)
(same). In none of these cases was Kingsley directly addressed by the litigants. Nor was the
same directly considered by the court itself. The only Sixth Circuit case to contemplate
Kingsley’s foundational shift for pretrial detainees recognized that there is now “serious doubt
whether” a plaintiff needs to “show that the individual defendant-officials were subjectively
aware of [his] serious medical conditions and nonetheless wantonly disregarded
them.” Richmond v. Huq, 885 F.3d 929, n. 3 (6th Cir. 2018).
Continued use of the subjective test in other circuits is similarly unpersuasive. Each of
these cases contains a dearth of reasoning, whether it is the Eighth Circuit’s assertion without
reason that Kingsley is limited to excessive force claims, or the Fifth and Eleventh Circuits’ rote
application of a circuit rule. See Whitney v. City of St. Louis, Missouri, 887 F.3d 857 (8th Cir.
2018); see also Nam Dang by & through Vina Dang v. Sheriff, Seminole Cty. Fla., 871 F.3d
1272 (11th Cir. 2017); Alderson v. Concordia Par. Corr. Facility, 848 F.3d 415 (5th Cir.

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2017). None avails this Court. We must faithfully apply the Supreme Court’s precedent
regardless of rules peculiar to other circuits. To do that, this Court must apply the objective test
to claims of deliberate indifference.
C
Federal qualified immunity “protects government officials from liability for civil
damages insofar as their conduct does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known.” Pearson v. Callahan, 555 U.S. 223,
231 (2009) (citation and internal quotation marks omitted). When evaluating such claims, courts
generally apply a two-step analysis. First, the court must consider whether “[t]aken in a light
most favorable to the party asserting the injury, [ ] the facts alleged show the officer’s conduct
violated a constitutional right.” Saucier v. Katz, 533 U.S. 194, 201 (2001). Second, the court
asks whether the right at issue was “clearly established.” Id. “The relevant dispositive inquiry in
determining whether a right is clearly established is whether it would be clear to a reasonable
officer that his conduct was unlawful in the situation he confronted.” Brosseau v. Haugen, 543
U.S. 194, 199 (2004). “The burden of convincing a court that the law was clearly established
rests squarely with the plaintiff.” Key v. Grayson, 179 F.3d 996, 1000 (6th Cir.1999) (citation
and internal quotation marks omitted). Although at one time courts were required to follow these
steps sequentially, the Supreme Court has abandoned that position and now permits courts to
“exercise their sound discretion in deciding which of the two prongs of the qualified immunity
analysis should be addressed first in light of the circumstances in the particular case at
hand.” Pearson, 555 U.S. at 236. Here, Love’s right to medical treatment for a serious medical
need has been established since at least 1987. Phillips v. Roane Cty., Tenn., 534 F.3d 531, 545
(6th Cir. 2008).

8

1
In the first two Counts of her first amended complaint, Love alleges violation of her
Fourteenth Amendment rights based on the “deliberate indifference” and what she calls
“intentional decision[s]” of all individual Defendants in response to her medical needs. [R. 10 ¶¶
33–44.] What Love is really advocating for with her “intentional decision” claim is for this
Circuit to extend the rationale of Kingsley regarding pretrial detainee’s excessive force claims to
all § 1983 claims brought by pretrial detainees. As explained in part II.B. of this Order, the
Court chooses to adopt the new, objective test for deliberate indifference as envisioned in Bruno,
and will proceed with its analysis using that standard. Therefore, Love’s amended complaint
will survive defendants’ motion to dismiss since, as explained, she pleads sufficient factual
matter, accepted as true, that establishes (1) Love suffered a serious medical condition; and (2)
the individual defendants “recklessly failed to act with reasonable care to mitigate the risk that
the condition posed to the pretrial detainee even though the defendant-official knew, or should
have known, that the condition posed an excessive risk to health or safety.” Bruno v. City of
Schenectady, 727 Fed.Appx. 717, 720 (2nd Cir. 2018); see also Castro v. County of Los Angeles,
833 F.3d 1060, 1070 (9th Cir. 2016); Miranda v. County of Lake, 900 F.3d 335, 351 (7th Cir.
2018).
a
A serious medical condition is apparent when the symptoms evidence a need for medical
attention that is “so obvious that even a layperson would recognize” the need for help.
Blackmore v. Kalamazoo Cty., 390 F.3d at 899–900 (6th Cir. 2004) (quoting Gaudreault v.
Municipality of Salem, 923 F.2d 203, 208 (1st Cir.1990)). Love was approximately eight months
pregnant on the night of May 15, 2017. [R. 9.] Of course, “simply being pregnant—without

9

more—does not constitute a serious medical condition.” Webb v. Jessamine County Fiscal
Court, 802 F. Supp.2d 870, 878 (E.D. Ky. Aug. 5, 2011). However, “developments that require
immediate attention can arise,” and “certain circumstances may exist in any particular case
which would provide the basis for determining that a woman’s pregnancy was a serious medical
need.” Id. (internal quotations omitted); Coleman v. Rahija, 1996 U.S. Dist. LEXIS 21702, *17–
18 (S.D. Iowa Jan. 2, 1996). Labor is one such development. See Webb, 802 F. Supp. 2d at 878.
Defendants argue that although Love alleges in her complaint that “it was obvious she
was in labor,” she has not plead specifically why her labor was obvious. [R. 14 at 5.] Because of
this, Defendants argue her complaint is facially deficient. Id. The Court does not agree. In
addition to stating that “it was obvious she was in labor,” Love alleges that she was eight months
pregnant, the Defendants knew she was eight months pregnant, and the Defendants were under
instruction to monitor her condition every ten minutes. [R. 9.] Love alleges that, at various
times throughout the night, several different defendants looked into her cell and were captured
doing so by surveillance video. [R. 9, ¶¶ 7–10.] Additionally, the Inmate Observation Record,
created and maintained by FCRJ, purports to establish that on numerous occasions throughout
the night, Defendants checked on Ms. Love and documented her activity. [R. 1-1.] Lastly, Love
alleges that Defendant Phillips entered her cell the morning of May 16, 2017 to find “a large
amount of blood smeared on the floor across the entire cell,” and an infant present in the cell
with Love. [R. 9, ¶¶ 24–25.] This is enough. The Court does not need every graphic detail of
what Love endured alone in her cell that night. Construing the complaint in light most favorable
to Love, and accepting her allegations as true, the Court finds that Love has plead facts that
allow the Court to infer she suffered a serious medical condition.

10

b
Love must also show that defendants “recklessly failed to act with reasonable care to
mitigate the risk that the condition posed to the pretrial detainee even though the defendantofficial knew, or should have known, that the condition posed an excessive risk to health or
safety.” Bruno v. City of Schenectady, 727 Fed.Appx. 717, 720 (2nd Cir. 2018); see also Castro
v. County of Los Angeles, 833 F.3d 1060, 1070 (9th Cir. 2016); Miranda v. County of Lake, 900
F.3d 335, 351 (7th Cir. 2018). Under this new standard, Love does not need to prove the
subjective mindset of the defendants.
At no point do the Defendants argue they actually rendered some sort of medical care to
Love. [See R. 9; R. 10; R. 13.] The question, then, is whether Love has pleaded facts that allow
the Court to infer that “the defendant-official[s] knew, or should have known, that the condition
posed an excessive risk to health or safety.” The Court finds that she has. As stated above,
Love’s complaint contains allegations that the Defendants were aware she was pregnant, were
instructed to check in on her every ten minutes, and although they did not adhere to the ten
minute time frame, did in fact check in on her several times throughout the night of May 15,
2017. [R. 9, ¶¶ 14–22.] She has also plead that her labor was obvious when they checked on
her, and that her blood covered the jail cell floor. Id. Based on these facts, the Defendants knew
or should have known that Love was in labor and required medical assistance. Love has
adequately pleaded this element of her claim. Defendants’ motion to dismiss is denied as to
Count 1 an 2 of the complaint.
2
Love asserts a Fourteenth Amendment claim against Defendant Rogers, specifically,
under a theory of supervisory liability. [R. 9 ¶¶ 45–49.] The doctrine of respondeat superior is

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not available in § 1983 actions, and a supervisory defendant is only legally responsible for his or
her own behavior. See Ashcroft v. Iqbal, 556 U.S. 662 (2009). Therefore, “a supervisory
official’s failure to supervise, control or train the offending individual is not actionable.” Shehee
v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999). At the very least, a Plaintiff must show that the
supervisory-defendant “at least implicitly authorized, approved, or knowingly acquiesced in the
unconstitutional conduct of the offending officers.” Id.
It is already established that Love has successfully pleaded a violation of her
constitutional rights. In addition, her complaint alleges “[a]fter the defendants looked in [her]
cell when it was obvious she was in labor, they notified Rogers of their observations,” and
“Defendant Rogers . . . [was] aware of how the other individual defendants responded to and
trained FCRJ staff to respond to FCRJ inmates with medical emergencies and intentionally chose
not to intervene.” [R. 9 ¶¶ 22, 28.] A failure to train is not actionable. However, the allegation
that the other individual defendants notified Rogers that Love was in labor, and that Rogers did
nothing to intervene, when construed in a light most favorable to Love and taken as true,
establishes that Rogers “at least implicitly authorized, approved, or knowingly acquiesced in the
unconstitutional conduct of the offending officers.” Shehee, 199 F.3d at 300. Love has
adequately pleaded this claim, and Defendants’ motion is denied as to count three of the
complaint.
3
Love also alleges violations of her Fourteenth Amendment rights by Franklin County and
Defendant Rogers3 under a theory of Monell liability. Generally, a local government may not be

Love’s amended complaint only names Defendant Rogers in his individual capacity. Because she is asserting a
claim pursuant to Monell, the Court believes Love likely intended to sue Defendant Rogers in both his individual
and official capacity. But “individuals sued in their official capacities stand in the shoes of the entity they
represent.” Alkire v. Irving, 330 F.3d 802, 810 (6th Cir. 2003) (citing Kentucky v. Graham, 473 U.S. 159, 165
3

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sued under § 1983 based on the actions of its employees or agents. See Monell v. Dept. of Soc.
Servs., 436 U.S. 658, 694 (1978). The exception to that general rule, known as Monell liability,
provides that a local government may be held liable where “execution of a government’s policy
or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to
represent official policy, inflicts the injury that the government as an entity is responsible under §
1983.” Id. “To survive a motion to dismiss under Rule 12(b)(6), a plaintiff must adequately
plead (1) that a violation of a federal right took place, (2) that the defendants acted under color of
state law, and (3) that a municipality’s policy or custom caused that violation to happen.” Bright
v. Gallia County, 753 F.3d 639, 660 (6th Cir. 2014).
Again, Love has established that her constitutional rights were violated, and the
Defendants do not dispute that they operated under the color of state law. Therefore, this claim
will survive a motion to dismiss if Love pleads “that a municipality’s policy or custom caused
that violation to happen.” Bright, 753 F.3d 660. The amended complaint alleges that Franklin
County and Defendant Rogers failed to adequately train, supervise, or discipline their employees.
Specifically, Love alleges the Defendants were not trained on how to respond to medical
emergencies among inmates. [R. 9, ¶ 51–54.] Further, it alleges that Franklin County and
Defendant Rogers’s failure to train was so pronounced that it “amounted to deliberate
indifference that inaction would obviously result in the violation of the right to medical care or
attention to medical needs.” [R. 9, ¶ 53.]
This is a close call, but the Court finds that Love has adequately pleaded that there
existed a custom within FCRJ such that “inaction would obviously result” when medical
emergencies occurred. In Leach v. Shelby County, the Sixth Circuit found that a “sheriff’s

(1985)). Therefore, Franklin County is the true defendant. The county is also named in this action, and therefore
the official versus individual distinction is immaterial.

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failure to supervise and correct the situation in view of the numerous similar incidents and his
failure subsequently to punish the responsible individuals is more than sufficient evidence of a
policy or custom to render the County liable for Leach’s damages.” 891 F.2d 1241, 1248 (6th
Cir. 1989). Love has alleged both a complete lack of training and a failure to discipline FCRJ
employees. Whether it’s true training at FCRJ was really so inadequate that “inaction would
obviously result” will certainly come to light in discovery or at trial. At this stage, Love is not
required to prove her claim, only plead it. The Court finds that she has done so sufficiently
enough to survive a motion to dismiss.
4
In the fifth and final count of the amended complaint, Love brings a claim of Kentucky
common law negligence against all individual Defendants. [R. 9, ¶ 56.] In Kentucky, to
establish negligence, a plaintiff must demonstrate the existence of a duty, breach thereof, and
consequent injury, which includes “actual injury or harm to the plaintiff and legal causation
between the defendant’s breach and the plaintiff’s injury.” Pathways, Inc. v. Hammons, 113
S.W.3d 85, 89 (Ky. 2003); Mullins v. Commonwealth Life Insurance Company, 839 S.W.2d 245,
247 (Ky. 1992). Kentucky law “imposes the duty on a jailer to exercise reasonable and ordinary
care and diligence to prevent unlawful injury to a prisoner placed in his custody, but he cannot be
charged with negligence in failing to prevent what he could not reasonably anticipate.”
Despite the fact that Love was incarcerated pending trial, completely dependent on
employees of FCRJ for care, the Defendants actually argue that Love “does not plead any facts
that would allow this Court to determine if the Individual Defendants owed the Plaintiff a duty of
care.” [R. 10 at 13.] Their position is untenable. Kentucky law imposes a duty of care on the
Individual Defendants by the nature of their relationship to Love. Love has pleaded, and the

14

Defendants have not disputed, that she was a pretrial detainee and the Defendants were her
jailers. [R. 9, ¶¶ 2–13.] These facts, taken as true, establish that Defendants owed a duty of care
to Love.
In addition to duty, Love must also plead that there was breach of that duty, and a
resulting injury. To do so successfully, Love must plead more than a “formulaic recitation of the
elements of a cause of action.” Iqbal, 556 U.S. at 678. The Court finds that she has done so.
Love’s amended complaint alleges that Defendants violated her Fourteenth Amendment rights
because they knew she was pregnant, witnessed her undergoing labor and delivery, and failed to
respond or obtain medical assistance. [R. 9, ¶¶ 14–32.] A factfinder could find that, based on
these facts, the duty of care owed to Love was breached. The violation of her Fourteenth
Amendment rights is the injury. Love satisfactorily pleads both of these elements in her
amended complaint.
5
Fifth and finally, the individual Defendants assert that they are entitled to qualified
immunity as to all claims raised in Love’s amended complaint. The Court has already
established that Love has pleaded a violation of her Fourteenth Amendment rights. See II.C.1–3,
supra. A right to medical treatment for a serious medical need has been established since at least
1987, and labor is a serious medical need. See Phillips v. Roane Cty. Tennessee, 534 F.3d 531,
545 (6th Cir. 2008). Further, “that labor is inherently risky is well known.” Nelson v. Corr.
Med. Servs., 583 F.3d 522, n. 5 (8th Cir. 2009) (en banc). A pretrial detainee’s right to medical
treatment is clearly established, both generally and specifically as it relates to Love’s condition:
childbirth. Every reasonable officer knows he is under an obligation to obtain medical help for

15

prisoners and pretrial detainees experiencing serious medical conditions. Accordingly the
individual Defendants are not entitled to qualified immunity.
III
Therefore, and the Court being otherwise sufficiently advised, it is hereby ORDERED as
follows:
1. Defendant’s Motion to Dismiss the Amended Complaint [R. 10] is DENIED;
2. Defendants’ Motion to Dismiss the Complaint [R. 8] is DENIED AS MOOT.
This the 27th day of March, 2019.

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