Powell v. Fugate et al
Filing
100
MEMORANDUM OPINION & ORDER : For all the reasons discussed, and on the terms outlined in this Opinion, the Court GRANTS in part and DENIES in part Defendants Motion for Summary Judgment (DE # 63 ). Signed by Judge Robert E. Wier on 3/8/19.(SYD)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION
LONDON
JEFFERY POWELL,
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
DAVID FUGATE, et al.,
Defendants.
No. 6:17-CV-122-REW-HAI
OPINION AND ORDER
*** *** *** ***
Defendants—former jail staff and the jail itself—move for summary judgment on a former
inmate’s constitutional and state law claims. DE #63. After full initial briefing, a reopened
discovery window, and supplemental briefing, the motion stands ripe for decision. For the reasons
that follow, the Court grants in part and denies in part. There are several material factual disputes.
Some of Powell’s claims patently fail as a matter of law, but others must go forward so that a jury
may sift through the evidence and determine precisely what Powell experienced at the Kentucky
River Regional Jail.
I.
Facts and Procedural Background
In the early hours of October 13, 2016, Hazard City Police arrested Plaintiff Jeffery Powell
on suspicion of driving under the influence (DUI) and transported him to the Kentucky Regional
River Jail (KRRJ). Several discordant voices offer accounts of the events that followed—two
officers involved in the incidents, the KRRJ’s administrator, a fellow inmate, and Powell
himself. There is also a short clip of blurry jail footage. The record is disjointed and inconclusive.
Powell’s memory is only in “bits and pieces”; but, he maintains, “what I do remember, I
1
remember for sure.” DE #60 (Powell Depo.) at 15.1 Although at times incomplete, Powell’s
account is not inconsistent with the video.
At approximately 7:30 a.m. on October 13, police transported Powell (age 19) to the jail
after a single-vehicle car accident, and KRRJ staff began the booking and intake process. DE #62
(Smith Depo.) at 9; see DE #63-2 at 4 (DUI Uniform Citation). Tony Smith was the deputy
supervisor on duty when Powell arrived. Smith watched as Deputy Carlow Young took inventory
of Powell’s property. DE #62 at 11. As Young counted Powell’s cash, Powell declared that some
of his money was missing. DE #60 at 16. Powell testified that he asked about the money in a nonaccusatory fashion, but Smith and Young told him to “sit down [and] shut up.” Id. at 15–16. Fellow
inmate and trustee Robert Fannin, who was out of his cell on laundry duty and observed this
conversation from an adjoining hallway, testified that Powell was nonviolent toward the guards,
unresisting, and “pissed off but [not] out of control pissed off. He was just asking.” DE #69 (Fannin
Depo.) at 7. Fannin added that Young and Smith were taunting Powell and immediately
threatening violence toward him. Id. at 9 (“Carlow made the comment to him that if he wouldn’t
spend his money on whores, he’d probably have it.”; “Carlow told him that if he didn’t shut his
[expletive] mouth that he’d knock his brains out.”; “Tony told him if he didn't shut his mouth, he
wouldn't have to worry about Carlow whooping him, that he would.”). Powell also accuses Young
and Smith of mocking him for having an African-American girlfriend and of using racial slurs. DE
#60 at 47.
Powell testified that Smith began to hit him and Young proceeded to gratuitously mace and
tase him2 when he would not be quiet, after which Powell “kind of blacked out a little bit and
1
The deposition citations in this Opinion refer to the CM/ECF pagination.
Whether Smith hit Powell first or Young maced Powell first is somewhat unclear; Powell
believed he was maced and then hit, but Fannin observed the opposite. Compare DE #60 (Powell
2
2
[doesn’t] really recall[]” what happened next. Id. at 16; id. at 17 (“After I was maced, I didn’t
know what was going on. I couldn’t see, I couldn’t breathe, I was freaking out.”); id. at 51
(“Carlo[w] was the one that was macing and tazing me, because Tony was the one mostly hitting
me in my face. It was like they [were] just both on me.”); id. at 52 (Powell testifying that he “didn’t
do anything to be punched” and “didn’t do anything to be maced”). Although Powell does not
remember the precise circumstances or sequence surrounding this incident,3 it appears that, in the
struggle, Young and a fellow deputy—Jordan Noble, who is not a party to this case—got mace in
their eyes as well. DE #62 (Smith Depo.) at 16 (“I didn’t really hear nothing until two of my
deputies [came] out of there with pepper spray in their eyes.”); DE #61 (Young Depo.) at 32–33
(“[H]e swings around, ‘bout the time I spray it. He hits my hand and he comes literally two inches
from my face and I spray myself.”). Fellow inmate Fannin corroborates parts of Powell’s version
of these events, with a couple of slight variations. He recalls seeing Smith punch Powell (seated at
booking) “so hard that [Powell] came off the chair and his head bounced off the floor.” DE #69
(Fannin Depo.) at 23. Fannin further testified that Powell “was hit a couple more times after that,
too,” before the deputies “drug” Powell away and administered mace out of Fannin’s sight. Id.
Powell stridently denies being “combative” or behaving violently toward jail staff and insists that
he was handcuffed during this encounter.4 See DE #60 (Powell Depo.) at 17, 52–53.
Depo.) at 48 with DE #69 (Fannin Depo.) at 23. Regardless, Powell testified that he felt like this
was all happening almost simultaneously. See DE #60 at 51.
3
Powell indicates that Defendants perhaps maced him more than once. See DE #60 (Powell Depo.)
at 17 (“I know I was in handcuffs the first time I got maced.”). However, Powell does not describe
a second use of mace, and there is no other evidence that one occurred.
4
The lack of video proof of the booking encounter is at least surprising, given the ubiquity of
cameras and the course of the day.
3
The next thing Powell remembers is waking up “a little bit later” in a restraint chair and
using baby wipes to clean the mace out of his eyes.5 Id. at 16. Young testified that, in the
intervening time, KRRJ staff had placed Powell in a detox cell, but Young became concerned
because he “couldn’t keep Inmate Powell awake.” DE #61 (Young Depo.) at 35. Young stated that
Powell told jail staff that he had taken multiple doses of Xanax, id. at 36–37, and a triage report
completed by KRRJ nurse Katherine Ritchie just after the intake incident provides that Powell
reported taking three or four sleeping pills.6 DE #70-6; see also DE #70-7 (October 13, 2016, 9:00
a.m. Narrative Progress Note). As to the presence of physical injuries, the triage report notes only
a small bruise and “small red nodule” near Powell’s right eye. DE #70-6. To observe Powell and
to keep him awake, Young (with Smith’s permission) removed Powell from the detox cell and
placed him in a restraint chair near the booking area, leaving him unrestrained. DE #61 at 35–36.
Per the KRRJ “Detox Observation Log” that Young and Noble completed, staff watched Powell
in the chair and intermittently awakened him from about 10:30 a.m. until 1:30 p.m. DE #63-3 at
6.7
Young, Smith, and David Fugate—the KRRJ administrator—testified that Powell then
began making suicidal remarks. DE #61 (Young Depo.) at 43; DE #62 (Smith Depo.) at 23–24;
5
There is no evidence of Powell being given a change of clothes after being coated in mace, and,
in the later KRRJ footage, he remains in street clothes (presumably his own and the same as when
he was maced).
6
Powell only remembers having taken 1.5 unidentified pills on October 13, which his brother had
offered and said would help him sleep; Powell acknowledges that this could have been Xanax. DE
#60 (Powell Depo.) at 19–21.
7
Whether Powell was restrained or not restrained in the chair, during the October 13 morning and
early afternoon, is not entirely clear. Compare DE #63-3 at 2 (Young Aff. stating that Powell was
unrestrained until he made suicidal threats at 1:30 p.m.) with DE #63-3 at 6 (Detox Observation
Log suggesting that Powell had to be released from the restraint chair multiple times to stand and
use the restroom before 1:30 p.m.). The answer, however, does not affect the analysis in this
Opinion.
4
DE #68 (Fugate Depo.) at 19. This may have been but one stray remark. See, e.g., DE #61 at 43
(“Inmate Powell said he was gonna kill himself.”). Powell does not deny that he made such
statements but testified that he does not remember making any. DE #60 (Powell Depo.) at 17. Per
“protocol,” the jailers decided to restrain Powell pending a suicide assessment. See DE #63-2
(Fugate Aff.) at 2. The brief exchange that followed is memorialized in grainy footage from a
nearby KRRJ camera.8 See DE #70-13.9 The video opens with a front-facing view of Powell sitting
still, unrestrained, in a chair located in a hallway facing the booking area.10 First Smith and then
Young enter the scene. Id. at 0:00:23–0:00:27. Smith attempts to strap Powell’s left arm to the
chair, while Young attempts to restrain Powell’s right arm. Id. at 0:00:37–0:00:50. Powell appears
initially cooperative in this process, but he soon begins to struggle and attempt to free himself from
the restraints. Id. at 0:00:52–0:00:55. He eventually wrestles his right arm out of the strap
(described as faulty) on the chair. Id. at 0:00:56. As Young and Smith again try to secure Powell’s
left arm, the guards obstruct the view of Powell. Id. at 0:01:000:01:02. At this point, Smith and
Young are in front of Powell, so it is impossible to see precisely what happens next. Id. at 0:01:02–
0:01:03. The jailers claimed that Powell punched Smith. DE #62 (Smith Depo.) at 27; DE #61
8
The video begins at 1:49 p.m. on October 13, 2016, per the time and date stamps. No audio
accompanies the footage.
9
Plaintiff’s exhibits are marked inconsistently. The physical thumb-drive containing the full video
of the restraint chair incident (described and referenced here) is marked as “Exhibit 13.”
Presumably, this corresponds with DE #70-13, left as a placeholder for the video conventional
filing maintained in the Clerk’s Office. However, Powell also submits a shorter version of the same
incident that is physically marked as “Exhibit 12;” the attachment DE #70-12, however, is not a
video placeholder (it is, rather, the “Second Narrative Progress Note”). And, there is a video
placeholder at DE #70-15 that fails to correspond with any physical exhibit. The Court has done
its best to be clear.
10
See DE #62 (Smith Depo.) at 21 (discussing camera positioning).
5
(Young Depo.) at 45. Fugate confirmed that he saw Powell punch Smith. 11 DE #68 (Fugate Depo.)
at 27.
Next, Smith punches the surrounded and still-seated Powell twice in the face and places
him in a 4-5 second chokehold.12 DE #70-13 at 0:01:03–0:01:09. Young and a third deputy then
appear to pull Smith away. Id. at 0:01:09–0:01:10. Smith retreats from Powell, and Fugate enters
and emphatically points towards Smith and then Powell before exiting the camera’s view. Id. at
0:01:10–0:01:23. Finally, Young and the third deputy secure Powell’s restraints before leaving
Powell, restrained in the chair, alone in the hallway. Id. at 0:01:25–0:02:59. The remaining four
minutes of footage show Powell sitting alone, restrained and subdued. The footage is largely
consistent with Powell’s testimony: “I recall, you know, [Smith] hitting me in my face, you know,
repeatedly while I was restrained.” DE #60 (Powell Depo.) at 39; id. at 51 (“Tony was the one
mostly hitting me in my face.”). Fannin observed the fallout from the incident, testifying: “Later
on [Powell] was sitting strapped down in the chair ‘beat to death.’ Now whether these guys did it
or whether he beat himself to death, you know, I can't tell you. But I can tell you he was beat to
death strapped to a chair later on.” DE #69 (Fannin Depo.) at 47. Fannin continued: “He had a
bruise around his eye . . . [H]e had a busted lip. He had what looked to be a few scrapes on his
11
Fugate testified that, at the time of the incident, he saw Powell strike Smith, yet he did not see
Smith strike Powell. However, Fugate admitted that he was in the same room during the
altercation—the video indicates that he was positioned near the camera, with a similar vantage
point—and, per the footage, the events unfolded in very quick succession. See DE #68 (Fugate
Depo.) at 26–27. In his deposition, Fugate agreed that the video showed Smith strike Powell.
12
Several witnesses noted Powell’s diminutive size and contrasted it with the dimensions of Young
and Smith. See, e.g., DE #61 (Young Depo.) at 63–64 (testifying that he weighed a hundred pounds
more than Powell); DE #62 (Smith Depo.) at 25–26 (noting that Powell weighed “[o]nly 130, 40
pounds[]” and that nearly all KRRJ jailers involved in these incidents likely outweighed him); DE
#69 (Fannin Depo.) at 23 (emphasizing that Powell “wasn’t 150 pound[s]”). Relative size and
strength surely impact the reasonableness of force in the context of instances such as these.
6
face, a cut and he complained about his ribs. That's what I saw and heard.” Id. Powell did not see
Young or Smith again after these events, as October 13 was their last day at the KRRJ.13
The KRRJ charged Powell with third-degree felony assault on a corrections officer based
on Powell’s alleged punch. See DE #63-2 at 19 (Assault 3rd Uniform Citation). The citation notes
(seemingly written by Smith) state: “[T]his inmate informed myself that he was going to kill
himself. Myself and Deputy Young were placing inmate Powell’s hands in restraint straps in
restraint chair. Inmate Powell jerked his right hand out of strap and punched this deputy in the
face.” Id. At a Perry District Court preliminary hearing on the charge, the presiding judge found
probable cause to send the matter to the grand jury based on the testimony of Smith and Fugate
and the video footage of the incident.14 See DE #70-14 (video of preliminary hearing).15 The case,
however, never reached the grand jury. See DE #62 (Smith Depo.) at 27 (“And you’ve not
presented the assault third to the grand jury yet[?] . . . No, I haven’t . . . Is there a reason? . . . I
really didn’t want to send a 19-year-old boy to prison.”). Powell denies ever hitting Smith or
assaulting anyone at the KRRJ. DE #60 (Powell Depo.) at 52, 55. With a new felony charge, the
KRRJ held Powell on a heightened bond, and Powell ultimately remained in KRRJ custody for
approximately two weeks. Id. at 54–55.
13
Although Plaintiff speculates otherwise (without support), these incidents did not precipitate
Smith’s or Young’s resignation, as the two were scheduled for voluntary layoffs. See DE #68
(Fugate Depo.) at 12–13; DE #69 (Fannin Depo.) at 17. Powell admits he does not know the
circumstances surrounding the deputies’ departure. See DE #60 (Powell Depo.) at 55, 63–64.
14
At the preliminary hearing, Smith did not mention hitting Powell. See DE #70-14 at 0:02:45–
0:02:50 (Smith simply testifying that he “kind of walked off from [the situation] after [Powell]
punched [him]”). Nor did Smith mention the dispute over Powell’s allegedly missing money as
leading to an initial altercation during booking.
15
For clarity, the Court notes that the physical thumb-drive containing this portion of the
preliminary hearing (Smith’s testimony) is marked as “Exhibit 14,” presumably corresponding
with the noted placeholder at DE #70-14.
7
Powell does not recall much of what happened after the filmed incident, only that he “woke
up a couple of days later in the restraint chair[.]” DE #60 (Powell Depo.) at 16–17; id. at 18
(“[A]fter I was getting beaten in the restraint chair, I was getting hit so many times that I couldn’t
recall nothing honestly.”). Powell conceded, however, that it may have simply “felt like two []
days.” Id. at 50. The Kentucky Jail Mental Health Crisis network performed a risk assessment on
Powell on the evening of October 13, noting that he was “sitting in the restraint chair and ha[d]
calmed down,” but was still under the influence of Xanax and marijuana. DE #70-8 at 1. Records
from Kentucky River Community Care (KRCC) indicate that the facility treated Powell between
8:00 p.m. and 9:30 p.m. on October 13, 2016. DE #63-5 at 2. The KRCC provider reported that
Powell had “been withdrawing from Xanax” and “ha[d] been expressing suicidal ideations.” Id.
As a result, the provider recommended that Powell “stay in the restraint chair with a release every
two hours.” Id. at 3. Medical records show Powell faring better the following day. A second
Episode Report from the Kentucky Jail Mental Health Crisis Network on October 14 found Powell
“sober and in control,” and no longer expressing suicidal ideations, although it noted that Powell
might not yet be aware of the new felony assault charge against him. DE #70-9 at 2. When the
KRCC saw Powell later on October 14, the provider noted that Powell appeared significantly better
but included a recommendation that the KRRJ continue to “observe him for any side-effects or
withdrawal symptoms from drug use.” Id. at 5–6.
Other records show that Powell visited the emergency room at Hazard ARH Regional
Medical Center (ARH) on October 15.16 DE #63-6 at 21. There, Powell tested positive for a
Powell contrarily testified that jail staff “didn’t take [him] to a hospital until about a week and a
half after [he] was beaten,” but confirmed ARH as the treating facility. DE #60 (Powell Depo.) at
30–31. Powell’s later testimony indicates that his perception of the general timeline is undoubtedly
foggy. See id. at 50. Furthermore, Powell effectively concedes in his response to the summary
judgment motion that jail staff took him to the hospital on October 15, 2016. See DE #70 at 8.
16
8
benzodiazepine (a drug category encompassing Xanax). DE #63-3 at 15. ARH records further
indicate that Powell had fainted at the jail at some point, at least in part prompting this visit. DE
#63-6 at 7 (stating “syncope and collapse” as reason for visit). A second KRRJ Narrative Progress
Note from later in the afternoon on October 15, written by KRRJ nurse Kelly Cockrell, also states
that Powell fainted: “[Inmate] blacked out [in a cell], hit his head on the door and bit his tongue.”
DE #70-12. Cockrell adds that Powell believed he had a concussion from the October 13 car
accident and reported experiencing withdrawal symptoms; Cockrell’s notes ostensibly reflect
Powell’s self-reported description of his condition at that time. Contrary to Powell’s and Fannin’s
descriptions of Powell’s injuries, ARH records report only some slight swelling of Powell’s head.17
See DE #63-6 at 25. For his part, Powell has little memory of his medical treatment. He merely
recalls seeing a jail nurse “once or twice at least[,]” unsuccessfully attempting to discuss the
alleged beatings with an individual from the KRCC, and later visiting the emergency room at ARH.
DE #60 (Powell Depo.) at 25–26, 28–29.
Powell describes only one other incident during his stay at the KRRJ. Sometime after the
altercation with Smith (although, Powell admits his memory of the timeline is hazy), a large guard
(who ironically went by “Tiny”) brought inmates into Powell’s cell and urine tested them near
where Powell was trying to sleep. Id. at 47 (“[L]ater on . . . in jail, a guard they call Tiny, he's
like—he's big . . . [was] bringing inmates into my cell and drug testing them right beside me,
having them pee right there where I laid my head beside my bed.”). When Powell protested, Tiny
As previously discussed, Powell and Fannin asserted, among other things, that “both of
[Powell’s] eyes were swollen shut[,]” DE #60 (Powell Depo.) at 29, and “he had a busted lip[,]”
DE #69 (Fannin Depo.) at 47. Powell attacks the medical records’ accuracy and credibility, arguing
that the existence of discrepancies demonstrates that the records are fabricated and the KRRJ was
engaging the medical professionals in a scheme to cover-up the alleged assaults on Plaintiff. DE
#95 at 3. Even in the summary judgment context, this suggestion is a stretch.
17
9
“pulled [him] out of [his] cell and was like, ‘You don't want no problems with me, Boy. I will give
you a real reason to go to the hospital[.]’” Id. at 48. Powell notes that he was “on psychiatric watch”
at the time of this incident. Id. at 47.
Based on his view of these events, Powell initiated suit against Smith, Young, Fugate, and
the KRRJ in the Perry Circuit Court. Powell alleged that Fugate and the KRRJ violated his
constitutional rights under 42 U.S.C. § 1983, lodged state law claims of negligent hiring,
supervision, and retention against Fugate and the Authority as a result of their employment of
Smith and Young, asserted an abuse of process claim against Fugate and the Authority based on
the felony assault charge, and brought claims of intentional infliction of emotional distress (IIED)
against all Defendants. Defendants removed the case to this Court due to Powell’s constitutional
claims. DE #1. After Defendants moved for summary judgment (DE #63), Powell responded (DE
#70), and, on that same day, also moved to amend the Complaint to assert several additional claims.
Defendants subsequently replied in support of their summary judgment motion. DE #82. After full
briefing on the amendment issue, the Court permitted inclusion of Smith and Young in the § 1983
excessive force claims and Smith in the abuse of process claim; the Complaint already factually
implicated them on those counts, and justice favored this limited amendment under the
circumstances. DE #92. The Court permitted an additional window for discovery on the
amendments and supplemental briefing on Defendants’ pending summary judgment motion. See
id. Defendants supplemented DE #63 (DE #94), Powell responded (DE #95), and Defendants
replied (DE #96).
II.
Summary Judgment Standard
Summary judgment is proper where “the movant shows that there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
10
56(a). The Court must construe the evidence and draw all reasonable inferences from the
underlying facts in favor of the nonmovant. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 106 S. Ct. 1348, 1356 (1986); Lindsay v. Yates, 578 F.3d 407, 414 (6th Cir. 2009). Courts
may not “weigh the evidence and determine the truth of the matter” at the summary judgment
stage. Anderson v. Liberty Lobby, Inc., 106 S. Ct. 2505, 2511 (1986). “The relevant inquiry is
‘whether the evidence presents a sufficient disagreement to require submission to a jury or whether
it is so one-sided that one party must prevail as a matter of law.’” Little Caesar Enters., Inc. v.
OPPCO, LLC, 219 F.3d 547, 551 (6th Cir. 2000) (quoting Anderson, 106 S. Ct. at 2512).
The burden of establishing the absence of a genuine dispute of material fact initially rests
with the moving party. Celotex Corp. v. Catrett, 106 S. Ct. 2548, 2553 (1986) (requiring the
moving party to set forth “the basis for its motion, and identify[] those portions of ‘the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,’
which it believes demonstrate an absence of a genuine issue of material fact”); Lindsay, 578 F.3d
at 414 (“The party moving for summary judgment bears the initial burden of showing that there is
no material issue in dispute.”). If the moving party meets its burden, the burden then shifts to the
nonmoving party to produce “specific facts” showing a “genuine issue” for trial. Celotex Corp.,
106. S. Ct. at 2253; Bass v. Robinson, 167 F.3d 1041, 1044 (6th Cir. 1999). However, “Rule 56(c)
mandates the entry of summary judgment . . . against a party who fails to make a showing sufficient
to establish the existence of an element essential to that party’s case, and on which that party will
bear the burden of proof at trial.” Celotex Corp., 106 S. Ct. at 2552; see also id. at 2557 (Brennan,
J., dissenting) (“If the burden of persuasion at trial would be on the non-moving party, the party
moving for summary judgment may satisfy Rule 56’s burden of production in either of two ways.
First, the moving party may submit affirmative evidence that negates an essential element of the
11
nonmoving party’s claim. Second, the moving party may demonstrate to the Court that the
nonmoving party’s evidence is insufficient to establish an essential element of the nonmoving
party’s claim.” (emphasis in original)).
A fact is “material” if the underlying substantive law identifies the fact as critical.
Anderson, 106 S. Ct. at 2510. Thus, “[o]nly disputes over facts that might affect the outcome of
the suit under the governing law will properly preclude the entry of summary judgment. Factual
disputes that are irrelevant or unnecessary will not be counted.” Id. A “genuine” issue exists if
“there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that
party.” Id. at 2511; Matsushita Elec. Indus. Co., 106 S. Ct. at 1356 (“Where the record taken as a
whole could not lead a rational trier of fact to find for the non-moving party, there is no ‘genuine
issue for trial.’”) (citation omitted). Such evidence must be suitable for admission into evidence at
trial. Salt Lick Bancorp v. FDIC, 187 F. App’x 428, 444–45 (6th Cir. 2006).
III.
§ 1983 Claims
A. Qualified Immunity
Qualified immunity shields public 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, 129 S. Ct. 808, 815 (2009) (quoting Harlow v.
Fitzgerald, 102 S. Ct. 2727, 2738 (1982)). This doctrine “balances two important interests—the
need to hold public officials accountable when they exercise power irresponsibly and the need to
shield officials from harassment, distraction, and liability when they perform their duties
reasonably.” Id. “Qualified immunity provides police officers ‘breathing room to make reasonable
but mistaken judgments and protects all but the plainly incompetent or those who knowingly
violate the law.’” Mullins v. Cyranek, 805 F.3d 760, 765 (6th Cir. 2015) (quoting Stanton v. Sims,
12
134 S. Ct. 3, 5 (2013) (per curiam) (citations and quotation marks omitted)). Importantly, qualified
immunity is “an immunity from suit rather than a mere defense to liability[,]” and reviewing courts
should resolve the issue as early in a case as practicable. Mitchell v. Forysth, 105 S. Ct. 2806, 2815
(1985). The qualified immunity inquiry is twofold, requiring assessment of “(1) whether the facts
alleged by the plaintiff make out the violation of a constitutional right and (2) whether the right at
issue was ‘clearly established’ at the time of the alleged violation.” Gavitt v. Born, 835 F.3d at
640. The Court may address either prong first, and, ultimately, “if the plaintiff cannot make both
showings, the officer is entitled to qualified immunity.” Id. (quoting Brown v. Lewis, 779 F.3d
401, 412 (6th Cir. 2015)).
The plaintiff bears the ultimate burden of proof in establishing that a defendant is not
entitled to qualified immunity. See Gardenhire v. Schubert, 205 F.3d 303, 311 (6th Cir. 2000)
(citing Wegener v. Covington, 933 F.2d 390, 392 (6th Cir. 1991)). A defendant asserting immunity
must initially demonstrate “facts to suggest that he acted within the scope of his discretionary
authority during the incident in question.” Id. The burden then shifts to the plaintiff to show “that
the defendant’s conduct violated a right so clearly established that a reasonable official in his
position would have clearly understood that he or she was under an affirmative duty to refrain
from such conduct.”18 Estate of Hill v. Miracle, 853 F.3d 306, 312 (6th Cir. 2017). Where
“undisputed facts show that the defendant’s conduct did indeed violate clearly established
rights[,]” or “if there is a factual dispute . . . involving an issue on which the question of immunity
turns, such that it cannot be determined before trial whether the defendant did acts that violate
“This not to say that an official action is protected by qualified immunity unless the very action
in question has previously been held unlawful; but it is to say that in the light of pre-existing law
the unlawfulness must be apparent.” Anderson v. Creighton, 107 S. Ct. 3034, 3039 (1987). “[T]he
contours of the right must be sufficiently clear that a reasonable official would understand that
what he is doing violates that right.” Id. at 3037.
18
13
clearly established rights[,]” a court must deny summary judgment. Gardenhire, 205 F.3d at 311
(quoting Poe v. Haydon, 853 F.2d 418, 425–26 (6th Cir. 1988) (citations omitted)).
B. Excessive Force Claims Against Smith and Young
Powell’s excessive force claims against Smith and Young address two alleged incidents:
(1) when Smith hit Powell, and Young tased and maced him, during booking; and (2) when Smith
later punched Powell while Powell sat in the restraint chair. The Fourth Amendment provides the
proper analytical lens for this context because the incidents occurred after Powell’s initial booking
at the KRRJ, but prior to any probable-cause hearing. See Hanson v. Madison Cty. Det. Ctr., 736
F. App'x 521, 528 (6th Cir. 2018) (citing McDowell v. Rogers, 863 F.2d 1302, 1306 (6th Cir.
1988); Aldini v. Johnson, 609 F.3d 858, 865 (6th Cir. 2010)) (“The Sixth Circuit has long adhered
to the view that the Fourth Amendment prohibits excessive force under certain pre-trial
circumstances . . . Fourth Amendment protections, including those against excessive force,
continue during booking and at all times prior to a probable-cause hearing.” (internal quotation
marks and citations omitted)). The Fourth Amendment inquiry evaluates the “objective
reasonableness” of the force used under the circumstances. See Hanson, 736 F. App’x at 528.
This analysis is heavily fact-dependent, and courts should approach it “from the perspective
of a reasonable officer on the scene, including what the officer knew at the time, not with the 20/20
vision of hindsight.” Kingsley v. Hendrickson, 135 S. Ct. 2466, 2473 (2015). “The officer’s
subjective intentions are irrelevant” to this calculus. Phelps v. Coy, 286 F.3d 295, 299 (6th Cir.
2002). The Court must “weigh the government's interest justifying the use of force against the
individual's interest in avoiding that force,” in light of “the measure of deference due an officer's
on-the-spot decisions[.]” Id. at 301. The Court must further heed the “legitimate interests that stem
from [the government’s] need to manage the facility in which the individual is detained” and the
14
“policies and practices . . . needed to preserve internal order and discipline and to maintain
institutional security.” Kingsley, 135 S. Ct. at 2473 (quoting Bell v. Wolfish, 99 S. Ct. 1861, 1878
(1979)) (alteration in original). The Supreme Court has articulated a non-exhaustive list of factors
to consider in evaluating the reasonableness of force used on a pretrial detainee: (1) “the
relationship between the need for the use of force and the amount of force used”; (2) “the extent
of the plaintiff’s injury”; (3) “any effort made by the officer to temper or to limit the amount of
force”; (4) “the severity of the security problem at issue”; (5) “the threat reasonably perceived by
the officer”; and (6) “whether the plaintiff was actively resisting.” See Hanson, 736 F. App’x at
528–29 (quoting Kingsley, 135 S. Ct. at 2473).
Per Powell’s and Fannin’s testimony, Smith hit Powell multiple times during intake, while
Powell was nonviolent and nonthreatening. DE #60 (Powell Depo.) at 51–52; DE #69 (Fannin
Depo.) at 23–24. Smith admits contacting Powell and causing him to fall from the stool onto the
floor, but he argues that this force was necessary because Powell had “acted like he was going to
get up” from the stool on which Smith had ordered him to sit. DE #62 (Smith Depo.) at 14. Powell
claims that Young then proceeded to mace and tase him; he describes the overall sequence of
events as occurring nearly simultaneously. DE #60 at 51 (“Carlo[w] was the one that was macing
and tazing me, because Tony was the one mostly hitting me in my face. It was like they [were] just
both on me.”). Powell maintains that he was not combative, insists that he was handcuffed
throughout the incident, and testified that he “didn’t do anything to be maced[,]” and “didn’t do
anything to be punched[.]” DE #60 at 52; see id. at 16–17 (“I know I was in handcuffs the first
time I got maced. I know I was, because I couldn't do nothing to block the mace. I just turned my
15
body . . . And when I was in the handcuffs still, they proceeded to taze19 me.”). There is no footage
of this incident to contradict Powell’s account, and Fannin’s testimony partly corroborates
Powell’s claim that Smith used excessive force, although Fannin did not witness administration of
the pepper spray or taser. DE #69 at 23–24. Although Defendants cast Powell as combative,
warranting the force used here, the Court may not evaluate the two competing stories to determine
which version is more likely true.20 And, Young himself conceded that Powell voiced no physical
threats. See DE #61 (Young Depo.) at 26.
Needless to say, gratuitously punching, macing, and/or tasing a restrained inmate, as
described by Powell, would violate the inmate’s clearly established constitutional rights. See Coley
v. Lucas Cty., 799 F.3d 530, 540 (6th Cir. 2015) (concluding that “pretrial detainees had a clearly
established right not to be gratuitously assaulted while fully restrained and subdued”). See also
Bultema v. Benzie County, 146 F. App’x 28, 35 (6th Cir. 2005) (reiterating “that use of a chemical
spray on a suspect who is already handcuffed and no longer poses a threat to the safety of the
officers or others constitutes excessive force”); Champion v. Outlook Nashville, Inc., 380 F.3d
893, 901 (6th Cir. 2004) (holding that pepper-spraying a fully restrained and non-threatening
arrestee constitutes excessive force); Adams v. Metiva, 31 F.3d 375, 386 (6th Cir. 1994) (holding
that pepper-spraying a compliant arrestee constitutes excessive force). At the time of this incident,
“the law clearly established that the ‘amount of force that was used’ must be roughly proportionate
to the ‘need for the application of force.’” Estate of Kulpa v. Cantea, 708 F. App’x 846, 853 (6th
19
The word tase is a colloquialized derivative of the proper noun Taser, and this misspelled
alternative appears in context in the deposition transcript. See Merriam-Webster, “Tase,”
https://www.merriam-webster.com/dictionary/tase.
20
See EEOC v. Ford Motor Co., 752 F.3d 634, 642 n. 3 (6th Cir. 2014) (“It is not our role at the
summary judgment stage to assess whether testimony is believable; such credibility contests are
for the trier of fact to resolve.”).
16
Cir. 2017) (quoting Cordell v. McKinney, 759 F.3d 573, 581 (6th Cir. 2014) (internal quotation
marks and citation omitted)). Accepting as true Powell’s and Fannin’s testimony that Powell was
not violent or resistant, both Smith’s and Young’s uses of force could be deemed unnecessary and
objectively unreasonable. Ultimately, the conflicting accounts of this incident raise “a question of
fact whether [Powell] posed an immediate threat to the safety of the officers or others.” Howard
v. Wayne Cty. Sheriff's Office, 417 F. App'x 465, 471 (6th Cir. 2011) (quoting Vaughn v. City of
Lebanon, 18 F. App’x 252, 266–70 (6th Cir. 2001). The Court must allow a jury to decide precisely
how much force Smith and Young used and whether the circumstances justified it.
Similarly, there is a fair question as to whether Smith used excessive force during the
restraint chair incident. The jail footage shows Smith punching Powell twice in the face before
putting him in a chokehold for 4-5 seconds, at which point Young and the third deputy on film
step in to quell the situation. See DE #70-13 at 0:01:03–0:01:10. During this altercation, Powell
was in the restraint chair with one arm restrained. Id. Smith admitted punching Powell twice and
speculated that Young likely stepped in because Young “didn’t want [Smith] to do nothing that
[he’d] get in trouble for because it was [their] last day[.]” DE #62 at 31. Although Young, Smith,
and Fugate testified that Powell punched Smith first (see DE #62 (Smith Depo.) at 27; DE #61
(Young Depo.) at 45; DE #68 (Fugate Depo.) at 27), this is not evident from the video. Perhaps
Powell used his unrestrained arm to strike Smith, but Young was literally standing over Powell
and had his hands on Powell at that moment. See DE #70-13 at 0:01:00–0:01:03. Due to the
vantage point, the video does not show the interaction with any clarity. Powell denies having
punched Smith. DE #60 (Powell Depo.) at 52, 55.21 Accepting Powell’s statement as true, and
21
Indeed, even if Powell did punch Smith, it is debatable whether two responsive punches and a
subsequent chokehold constituted the necessary amount of force to regain control over the seated
Powell.
17
based on the controvertible video evidence, a jury could rationally conclude that it was objectively
unreasonable for Smith to punch Powell twice in the face. Moreover, a jury could conclude that it
was further unnecessary for Smith to place Powell in a chokehold after administering the blows to
his face. As previously discussed, it was clearly established that the force used must be
proportional to the need for its application, and that Powell had the right not to be punched or
choked gratuitously once he no longer posed any threat. See Coley, 799 F.3d at 541 (“Chokeholds
are objectively unreasonable where an individual is already restrained or there is no danger to
others.”); see also Estate of Kulpa, 708 F. App’x at 853.
Given the disputed need for and degree of Smith’s and Young’s application of force in both
incidents, it is appropriate to let a jury review the proof and determine whose characterization of
the events to credit. The parties recount markedly different versions, and material factual
discrepancies preclude summary judgment, even on a qualified immunity basis. See Poe, 853 F.2d
at 426 (“Summary judgment would not be appropriate if there is a factual dispute (i.e. a genuine
issue of material fact) involving an issue on which the question of immunity turns, such that it
cannot be determined before trial whether the defendant did acts that violate clearly established
rights.”). The Court cannot determine whether Smith or Young used objectively reasonable force
without engaging in improper factfinding, and, thus, it must deny them qualified immunity on the
excessive force claims.
C. Excessive Force Claim Against Fugate
Despite Plaintiff’s statements to the contrary, “[i]t is well-settled that ‘[g]overnment
officials may not be held liable for the unconstitutional conduct of their subordinates under the
theory of respondeat superior.’” Peatross v. City of Memphis, 818 F.3d 233, 241 (6th Cir. 2016)
(quoting Ashcroft v. Iqbal, 129 S. Ct. 1937, 1948 (2009)); accord Bellamy v. Bradley, 729 F.2d
18
416, 421 (6th Cir. 1984). To be liable, a supervisor must have “encouraged the specific incident
of misconduct or in some other way directly participated in it. 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.” Id. at 421 (citing Hays
v. Jefferson County, 668 F.2d 869, 872–74 (6th Cir. 1982)); see also Doe v. City of Roseville, 296
F.3d 431, 440 (6th Cir. 2002) (quoting Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999))
(requiring evidence “that the supervisors had ‘participated, encouraged, authorized or acquiesced
in’ the offending conduct”). A “mere failure to act” will not suffice. Peatross, 818 F.3d at 241.
“There must be some conduct on the supervisor's part to which the plaintiff can point that is directly
correlated with the plaintiff's injury.” Id. (quoting Essex v. Cty. of Livingston, 518 F. App’x 351,
355 (6th Cir. 2013). The supervisor must have “d[one] more than play a passive role in the alleged
violations or show mere tacit approval of the goings on[.]” Gregory v. City of Louisville, 444 F.3d
725, 751 (6th Cir. 2006). And, critically, there must be a causal connection between the
supervisor’s improper execution of his job function and the plaintiff’s injuries. Peatross, 818 F.3d
at 242.
Powell alleges that Fugate lied about witnessing Smith’s use of unconstitutional force on
him and turned a blind eye to what was occurring in his presence. The video of the restraint chair
altercation establishes that Fugate was on the scene at the time, and Fugate admits his presence.
See DE #68 (Fugate Depo.) at 19–20. Indeed, Powell’s citation for the resulting assault charge lists
Fugate as a witness. See DE #70-4. However, Fugate testified—both at the preliminary hearing on
the assault charge and in this case—that, at the time, he did not observe Smith hit Powell but saw
19
Powell hit Smith. Id.; see also DE #70-5 (physically marked “Exhibit 4”)22 at 0:02:40–0:02:55
(Fugate confirming on direct examination at the preliminary hearing that he did not observe Smith
strike Powell). Because the events unfolded so quickly, and Fugate was nearby and admittedly
witnessed a portion of them, Powell contends that Fugate could not have observed Powell punch
Smith but miss Smith’s responsive blows. Fugate does not offer a concrete explanation for how he
missed the latter, merely stating that he “just couldn’t see.” Id. at 20.23 Powell suggests that Fugate
was lying to protect Smith from consequences for his use of excessive force. The video evidence
reasonably supports an inference that Fugate necessarily witnessed Smith use force on Powell in
the restraint chair and, thus, may have lied about Smith’s force in an attempt to cover it up.
Courts have found supervisory liability where, among other things, supervisors covered up
subordinates’ unconstitutional conduct to protect them. See Coley, 799 F.3d 542 (denying qualified
immunity to a supervisor who had “full knowledge” of the assault at issue and “intentionally and
deliberately made false statements to federal officials about [his] knowledge of [it]”); accord
Peatross, 818 F.3d at 243 (denying qualified immunity where a supervisor “attempted to cover-up
the unconstitutional conduct of his subordinates by exonerating the officers in an effort to escape
liability”). A jury could find that Fugate fabricated his knowledge in a way that would protect the
jail. Thus, Fugate, not yet in view on the video but a direct participant, claims he saw the first
event, the Powell punch. Despite the same (or a closer) vantage point, he claims not to have seen
the second event, the Smith punches. This could be innocent, or it could be malevolent. Jurors
Again inconsistently marked, Plaintiff submitted a physical thumb-drive containing Fugate’s
preliminary hearing testimony that is labeled with a sticker reading “Exhibit 4.” However, DE #704 is the “Assault Citation.” DE #70-5, rather, is the video placeholder.
23
When asked to confirm that he did not see Smith strike Powell in “actual time[,]” Fugate also
responded: “Where I was standing, by the time I got over there…” DE #68 at 19–20. Given that
Powell is alleged to have hit Smith first, this response sharply conflicts with Fugate’s theory.
22
20
could rationally perceive Fugate, the jail administrator responsible for actually ordering Powell’s
restraint, as fomenting, facilitating, or endorsing Smith’s violent act by assisting in hiding or
fabricating the true events of the day. And, indeed, such supervisory conduct—ordering an
inmate’s restraint, observing a guard’s repeated striking of the restrained inmate absent
intervention, and then lying about the incident to hide the guard’s use of force and shield the jail
from consequences—could reasonably give rise to precisely the sort of unchecked inmate abuse
that Powell alleges he suffered. See Peatross, 818 F.3d at 244–245 (quoting Campbell v. City of
Springboro, 700 F.3d 779, 790 (6th Cir. 2012) (finding a causal connection between a police
supervisor’s execution of his job function and an arrestee’s harm where the supervisor’s “rubber
stamping” of officer misconduct “could be reasonably expected to give rise to just the sort of
injuries that occurred”).
The facts, viewed in the light most favorable to Powell, could reasonably demonstrate Fugate’s
implicit authorization and approval of Smith’s use of excessive force. Credibility determinations
and evidence-weighing are required to determine what exactly Fugate saw—or did not see—
which, in turn, supplies the necessary context for evaluating his later actions. Fugate, who directed
Powell’s restraint in the chair and was indisputably present at the scene of Smith’s alleged
constitutional violations, is not entitled to qualified immunity on the excessive force claim. Cf.
Hanson, 736 F. App’x at 539 (quoting Peatross, 818 F.3d at 242) (implicitly endorsing the value
of evidence that a supervisor was present at the scene of the incident and noting that it is the “very
rare case” where “a supervisor does not have to be ‘physically . . . present at the time of the
constitutional violation”). The Court rejects the propriety of summary judgment on the issue of
Fugate’s direct liability.
21
D. Deprivation of Medical Care Claim Against Fugate
Powell argues that Fugate violated his constitutional rights by depriving him of necessary
medical care. Powell asserts that Fugate failed to order Powell’s examination at a hospital until
two days after his arrival, despite it being the usual practice of the KRRJ to have detainees who
had been in car accidents examined at a hospital prior to admission at the jail. See DE #70-1 at 8;
DE #62 (Smith Depo.) at 13 (“. . . I believe [the arresting officer] was trying to get out of there as
soon as possible, because we usually require a hospital to check them out if they’ve been in a motor
vehicle accident before accepting them. But a lot of officers try to give [jail staff] a citation and
run out the door so they don’t have to.”). Powell also suggests that Fugate later observed the
injuries his deputies caused but purposely declined to get Powell medical attention until it was
necessary “to prevent his condition from potentially worsening to death” because Fugate wanted
to “cover[] up the vicious beating that Mr. Powell was the victim of.” DE #70-1 at 8.
“The Eighth Amendment's prohibition on cruel and unusual punishment generally provides
the basis to assert a § 1983 claim of deliberate indifference to serious medical needs, but where
that claim is asserted on behalf of a pre-trial detainee, the Due Process Clause of the Fourteenth
Amendment is the proper starting point.” Winkler v. Madison Cty., 893 F.3d 877, 890 (6th Cir.
2018) (quoting Phillips v. Roane County, 534 F.3d 531, 539 (6th Cir. 2008)). Such a claim has
both an objective and a subjective component. Id. (citing Spears v. Ruth, 589 F.3d 249, 254 (6th
Cir. 2009)). “For the objective component, the detainee must demonstrate the existence of a
sufficiently serious medical need.” Spears, 589 F.3d at 254. “For the subjective component, the
detainee must demonstrate that the defendant possessed a sufficiently culpable state of mind in
denying medical care.” Id.
22
First, the Court questions whether Powell’s injuries—swollen black eyes and a “busted”
lip (see DE #60 at 29 and DE #69 at 47), per Powell’s story—constituted sufficiently serious
medical needs. See, e.g., Gonzalez v. Lusardi, 930 F. Supp. 3d 840, 854–55 (E.D. Ky. 2013)
(finding a black eye insufficiently serious for a deliberate indifference claim). Also, Powell has
not shown that Fugate recklessly disregarded any medical need of Powell, much less a serious one.
“[T]he failure to follow internal policies, without more, [does not] constitute deliberate
indifference.” Winkler, 893 F.3d at 892; see also Meier v. County of Presque Isle, 376 F. App'x
524, 529 (6th Cir. 2010) (noting that corrections officers’ failure to comply with departmental
policy requiring medical attention for detainees with specified blood-alcohol content levels was
not a per se constitutional violation). A supervisor will not be liable in these circumstances absent
evidence that he “abandoned the specific duties of his position . . . in the face of actual knowledge
of a breakdown in the proper workings of the department[]” and “execution of the supervisor[’s]
job function” caused the plaintiff’s injury. Winkler, 893 F.3d at 898 (quoting Taylor v. Mich. Dep't
of Corr., 69 F.3d 76, 81 (6th Cir. 1995)). Powell received screening not long after his arrival at the
KRRJ—from the KRCC and Kentucky Jail Mental Health Crisis on October 13, the date of
Powell’s arrival, as well as at ARH on October 15—and there is no argument, much less evidence,
that this care was inadequate.24 There is no evidence that Fugate abandoned his duties as a
supervisor in ensuring Powell received care. Nor is there evidence that Fugate did so in the face of
any “actual knowledge of a breakdown” at the KRRJ in that regard. See Winkler, 893 F.3d at 898.
Given the utter absence of proof related to this claim, the Court rejects it. Although the guard
24
Plaintiff simply states that, because the KRRJ allegedly failed to follow its policy of seeking
medical care for an inmate involved in a car accident prior to admission, “any medical care that
was alleged to have been provided prior to be taken [sic] to the hospital was inherently inadequate.”
DE #70-1 at 9. Having rejected the idea that a failure to follow policy equates with deliberate
indifference, the Court similarly dismisses this contention.
23
conduct in this case is concerning, Powell has not established, on the medical side, harm or medical
results grave enough, or indifference culpable enough, to support the care-denial claim. Powell
had access to medical care, and the record does not show significant medical issues to be addressed.
Rank speculation will not avoid summary judgment.
E. Monell25 Claim Against the KRRJ
“To succeed on a municipal liability claim, a plaintiff must establish that his or her
constitutional rights were violated and that a policy or custom of the municipality was the ‘moving
force’ behind the deprivation of the plaintiff's constitutional rights.” Brown v. Battle Creek Police
Dep't, 844 F.3d 556, 573 (6th Cir. 2016) (citing Powers v. Hamilton Cty. Pub. Def. Comm'n, 501
F.3d 592, 606–07 (6th Cir. 2007)); Monell, 98 S. Ct. at 2038. The plaintiff must first “identify a
municipal ‘policy’ or ‘custom’ that caused the plaintiff’s injury”; where the plaintiff cites an
unofficial policy on behalf of the municipality, he must show that, while the policy was never
“formally approved by an appropriate decisionmaker,” it was nevertheless “so widespread as to
have the force of law.” Bd. of County Comm'rs of Bryan County v. Brown, 117 S. Ct. 1382, 1388
(1997). Plaintiff argues that there is an official policy of concealing the inner KRRJ workings and
an unofficial policy of overlooking guards’ use of excessive force.
As evidence that there is an official secrecy policy at the KRRJ, Plaintiff merely supplies
an employment document from 2004 that Smith signed when he began work at the facility (thencalled the Perry County Detention Center, before it became the Kentucky River Regional Jail).
The document lists various job expectations and states: “What goes on at the jail stays at the jail.”
DE #70-16. However, this ambiguous phrase in an aged onboarding document is insufficient
25
Monell v. Dep’t of Social Servs. of City of N.Y., 98 S. Ct. 2018 (1978).
24
evidence from which a rational juror could conclude that there is a current official policy of secrecy
(even assuming a constitutional dimension to such a policy).
To support his claim that there is an unofficial policy of overlooking force used at the
KRRJ, Powell cites Fugate’s enabling and concealing conduct with respect to Smith’s use of force
in this case. However, while the evidence supports a reasonable inference of misconduct on
Fugate’s part in this instance (as discussed previously), it does not demonstrate any “widespread”
practice of evidence concealment or secrecy regarding excessive force allegations. Plaintiff does
not cite to evidence that any alleged “look-the-other-way” policy extended beyond Fugate. Nor
does Powell provide arguments regarding or evidence of force training inadequacies.26
That Plaintiff points to several former KRRJ guards that have been prosecuted for
altercations with inmates does not change this conclusion. Smith admits that “there[] [are] about
five [former KRRJ guards] facing federal time right now[]” based on their use of force against
inmates. DE #62 at 32. Plaintiff offers no details (time, personnel, date, supervision, specifics) as
to these events, and he casts them all as allegations rather than concluded matters. Even if this
rings like pattern proof, Powell has not tied it to any institutional policy, whether official or
unofficial, that could be the “moving force” behind such incidents, including those at issue here.
Critically, Powell does not develop any theory that would render the KRRJ responsible for its
offending guards’ behavior, such as a systemic failure to train or a broader pattern of lack of
responsive discipline on the part of the KRRJ. Rather, Plaintiff relies solely on the existence of
undetailed previous incidents. This generic effort does not suffice to create a triable Monell issue.
26
Notably, Plaintiff does not develop any failure-to-train theory in the context of his Monell claim.
25
IV.
State Law Claims27
A. Qualified Official Immunity
Kentucky “[p]ublwic officers are responsible only for their own misfeasance and
negligence and are not responsible for the negligence of those employed by them if they have
employed persons of suitable skill.” Yanero v. Davis, 65 S.W.3d 510, 528 (Ky. 2001) (citations
omitted). “[W]hen an officer or employee of the state or county (or one of its agencies) is sued in
his or her individual capacity, that officer or employee enjoys qualified official immunity, ‘which
affords protection from damages liability for good faith judgment calls made in a legally uncertain
environment.’” Haney v. Monsky, 311 S.W.3d 235, 240 (Ky. 2010) (quoting Yanero, 65 S.W.3d
at 522). Determining whether an action occurred “in a legally uncertain environment” ultimately
requires “classifying the particular acts or functions in question in one of two ways: discretionary
or ministerial.” Turner v. Nelson, 342 S.W.3d 866, 874 (Ky. 2011) (quoting Haney, 311 S.W.3d
at 240). Qualified immunity protects individuals performing discretionary acts, but not ministerial
acts. See id.
B. Negligence Claims Against Fugate and Intentional Infliction of Emotional Distress
Claim Against All Defendants28
Overall, Powell presents absolutely no evidence, developed arguments, or reasoned
analysis for these claims. A successful Kentucky negligence claim requires “proof that (1) the
defendant owed the plaintiff a duty of care, (2) the defendant breached the standard by which his
“A federal court exercising supplemental jurisdiction is bound to apply the law of the forum
state, including its choice of law rules.” Menuskin v. Williams, 145 F.3d 755, 761 (6th Cir. 1998)
(citing Haynes v. Marshall, 887 F.2d 700, 705 (6th Cir. 1989)). Substantive Kentucky law applies
to the state tort claims in this case.
28
Although the Complaint includes the KRRJ in the state tort claims, “Plaintiff concedes that under
Kentucky law state entities . . . are immune from state tort claims” and pursues claims against the
KRRJ instead only under § 1983 via Monell. DE #70-1 at 13.
27
26
or her duty is measured, and (3) consequent injury.” Pathways, Inc. v. Hammons, 113 S.W.3d 85,
88 (Ky. 2003). “[P]ublic officers and employees are entitled to ‘qualified official immunity’ for
negligent conduct when the negligent act or omissions were (1) discretionary acts or functions,
that (2) were made in good faith (i.e. were not made in ‘bad faith’), and (3) were within the scope
of the employee's authority.” Rowan Cty. v. Sloas, 201 S.W.3d 469, 475 (Ky. 2006), as corrected,
(Sept. 26, 2006). Powell’s treatment of the negligence elements is wholly deficient. Nor does
Plaintiff even attempt to overcome qualified official immunity in this context. Rather, in his lessthan-half-page argument, Powell confusingly invokes res ipsa loquitur as the basis for his
negligence claims, arguing that there is no possible explanation for Powell’s mistreatment besides
Fugate’s negligence. There is no support for application of this theory (and Smith was an 18-year
veteran), and Plaintiff does not flesh it out in any substantive way.
Similarly, Powell devotes one line to his IIED argument, merely stating that “the facts
previously cited” as the basis for other arguments “indicate that the Defendants’ actions were
calculated to intimidate the Plaintiff and cause severe emotional distress.” DE #70-1 at 16. With
utterly no proof on the intensity of any emotional harm, the IIED claim is not triable. See Sheliga
v. Todd, No. 2011–CA–002132–MR, 2013 WL 869608, at *5 (Ky. Ct. App. Mar. 8, 2013) (stating
that “the party opposing [a] motion for summary judgment[] was required to present some
affirmative evidence of severe emotional distress to support his claim); see also White v. Bourbon
Cmty. Hosp., LLC, No. 5:14-CV-79-REW, 2016 WL 208303, at *9 (E.D. Ky. Jan. 15, 2016) (citing
MacGlashan v. ABS Lincs KY, Inc., 84 F. Supp. 3d 595, 605 (W.D. Ky. 2015)) (considering a lack
of “expert proof on the degree of any emotional harm[]” to be “another likely fatal flaw to any
IIED theory”).
27
“[I]ssues adverted to in a perfunctory manner, unaccompanied by some effort at developed
argumentation, are deemed waived. It is not sufficient for a party to mention a possible argument
in the most skeletal way, leaving the court to . . . put flesh on its bones.” McPherson v. Kelsey, 125
F.3d 989, 995–96 (6th Cir. 1997) (citing Citizens Awareness Network, Inc. v. United States
Nuclear Regulatory Comm'n, 59 F.3d 284, 293–94 (1st Cir. 1995) (citation omitted)). That is
precisely the circumstance here. Plaintiff’s half-hearted attempts at addressing these claims,
lacking both argumentation and evidentiary support, patently fail.
C. Abuse of Process Claim Against Fugate and Smith
An abuse of process is “the irregular or wrongful employment of a judicial proceeding.”
Simpson v. Laytart, 962 S.W.2d 392, 394 (Ky. 1998) (quoting Stoll Oil Refining Company v.
Pierce, Ky., 337 S.W.2d 263 (1960)). The essential elements of the claim are: (1) an ulterior
purpose and (2) a willful act in the use of the judicial process not proper in the regular conduct of
the proceeding. See id. Powell argues that he did not hit Smith while in the restraint chair and that
Smith concocted the story for the purpose of bringing legal action against Powell, thus deterring
Powell from taking action against the KRRJ. Perhaps this creates a question on motive, but Powell
nowhere shows misuse of process relative to the criminal case itself. In other words, Plaintiff
critiques the charge, but he does not claim that the criminal process played out in an improper,
irregular, or untoward way. Without proof tying the use of process to a collateral effect—and
Powell offers nothing but speculation here—the claim falters. See Cherry v. Howie, 191 F. Supp.
3d 707, 716 (W.D. Ky. 2016) (quoting Simpson v. Laytart, 962 S.W.2d 392, 395 (Ky. 1998) (“Both
elements must be present, as ‘there is no liability where the defendant has done nothing more than
carry out the process to its authorized conclusion even though with bad intentions.’”). Thus, Powell
28
fails in a necessary proof component, and the Court grants judgment for the defense on this state
law theory.
V.
Conclusion
For all the reasons discussed, and on the terms outlined in this Opinion, the Court
GRANTS in part and DENIES in part Defendants’ Motion for Summary Judgment (DE #63).
This the 8th day of March, 2019.
29
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