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ALLEN K. GAILOR, Administrator of the Estate of Adrian
Spencer Reynolds, et al., PLAINTIFFS v. DAVID ARMSTRONG, et
al., DEFENDANTS
CIVIL ACTION NO. 3:99CV-2-H
UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF
KENTUCKY, LOUISVILLE DIVISION
July 18, 2001, Decided
MEMORANDUM OPINION
Plaintiff has asserted state law and constitutional claims
against a variety of defendants. In a June 7, 2001 order, the Court dismissed some
of these claims. The Court now addresses the remainder. The Court will first
consider the § 1983 claims, which relate to municipal policy, made by Gailor
against the Jefferson County Fiscal Court ("JCFC") and defendants
Bishop, Armstrong, and Karsner (the "Municipal Defendants"). The
Court will then turn to the state law and constitutional claims against
individual defendants Green, Rose, Durham, McClellan, Dobbs, and Lowe. The
Court will discuss the evidence as appropriate to the analysis.
I.
The law lays significant burdens at the feet of plaintiffs
bringing § 1983 claims against municipalities and policymakers. Plaintiff must
overcome three hurdles. First, Plaintiff must show that each individual defendant
is properly characterized as a "policymaker." Jett v. Dallas Indep.
Sch. Dist., 491 U.S. 701, 737, 105 L. Ed. 2d 598, 109 S. Ct. 2702 (1989);
Depiero v. City of Macedonia, 180 F.3d 770, 786 (6th Cir. 1999). Second,
Plaintiff must show that the Municipal Defendants' failure to establish policies,
to enforce existing policies, and to adequately train and supervise employees,
itself amounted to a "policy or custom" that reflected a
"deliberate choice to follow a course of action." City of Canton v.
Harris, 489 U.S. 378, 388-89, 103 L. Ed. 2d 412, 109 S. Ct. 1197 (1989); Monell
v. Department of Social Services, 436 U.S. 658, 690, 56 L. Ed. 2d 611, 98 S.
Ct. 2018 (1978). Finally, Plaintiff must demonstrate that "there is a
direct causal link between a municipal policy or custom and the alleged constitutional
deprivation." Harris, 489 U.S. at 385. The Court will consider these
questions in turn.
A.
To be a policymaker for § 1983 purposes, an official, under
state law, must have "final policymaking
authority." Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737,
105 L. Ed. 2d 598, 109 S. Ct. 2702 (1989); St. Louis v. Praprotnik, 485 U.S.
112, 123, 99 L. Ed. 2d 107, 108 S. Ct. 915 (1988). Defendant Bishop was
Director of the Jefferson County Department of Corrections, Defendant Armstrong
was the Jefferson County Judge/Executive, and Defendant Karsner was a
supervisory official employed by the Jefferson County Department of
Corrections. Plaintiff has failed to identify any state law that vests any of
the individual Defendants with "final policymaking authority" in any
of the policies at issue in this case. While someone must have that authority,
it is not clear whether such authority resides in all three defendants.
Nevertheless, for the purposes of this analysis, this Court will assume, without
deciding, that these persons each
possessed some "final policymaking authority" and will turn to the
second question of whether Plaintiff has shown that their behavior rises to the
level of municipal policies or customs.
[*733]
B.
Count I of
the complaint alleges that the Municipal Defendants failed to establish
adequate policies for inmate medical and psychiatric care as well as physical
confrontations with inmates. Count II says that the Municipal Defendants failed to enforce existing
policies governing medical and psychiatric care and physical confrontations.
Count III asserts that the Municipal Defendants failed to provide adequate
training regarding the use of force. Though the Supreme Court has only
addressed municipal inaction under § 1983 in the failure to train context, see
City of Canton v. Harris, 489 U.S. 378, 103 L. Ed. 2d 412, 109 S. Ct. 1197
(1989), courts apply the same analysis to failure to establish and enforce
policy claims as well. See, e.g, Burge v. Parish of St. Tammany, 187 F.3d 452
(5th Cir. 1999); Weaver v. Tipton County, 41 F. Supp. 2d 779 (W.D. Tenn. 1999).
Under Harris, inaction only becomes a policy or custom when the failure to
enact policy "amounts to deliberate indifference to the rights of persons
with whom [the corrections guards] come into contact." 489 U.S. at 388.
Because Counts I through III all relate to the failure of the Municipal
Defendants to act--establish, enforce, or train--the Court will analyze all
three counts under Harris
This analysis requires the Court to answer two questions. First,
did Defendants actually fail to act as alleged? If so, did that failure amount
to a deliberate indifference to the rights of Reynolds? Plaintiff produces
little proof to demonstrate the failure to enact or enforce policies. While
Plaintiff makes a persuasive argument that in the incident involving Reynolds
the guards and supervisors did not follow the existing procedures, they only
summarily address the crucial factual questions of whether Defendants failed to
enact adequate policies or condoned a pattern of failure to enforce existing
policies.
In their
response to the Municipal Defendants' motion for summary judgment, Plaintiff
identifies the following policies that Defendants failed to enact: 1) a policy
that would ensure the availability of a complete Corrections Emergency Response
Team ("CERT") at all times; 2) a policy that would provide sufficient
videotapes for so that the video recording equipment could record inmate abuse;
and 3) an adequate use of force policy.
The most significant charge is that Defendants failed to enact a
use of force policy. n1 However, this charge suffers from both procedural and
substantive defects. Plaintiff relies primarily on two items of evidence, the
affidavit of James Wilder and articles from the Louisville Courier Journal.
While Defendants correctly note that the use of Mr. Wilder as a witness who
will testify at trial would violate this Court's scheduling order, this Court
is not now presented with such a dilemma. In the interests of giving every
possible benefit of the doubt to Plaintiff, the Court will consider Mr.
Wilder's affidavit in this review. n2
Wilder's affidavit, while perhaps of historical interest, does
not address the use of force policy in effect at the time of Reynolds' death.
The September 19, 1997 [*734] use of force policy, by its own terms,
replaced the policy that was in effect while Wilder was employed. Standing
alone, Wilder's affidavit does not support any inference regarding whether or
not the use of force policy was actually followed in 1998. Had Plaintiff
produced other affidavits regarding a continued pattern of disregarding the
written policies during the time frame of Reynolds' death, Wilder's affidavit
could support Plaintiff's claim. As a single data point, however, its
obsolescence renders it largely irrelevant.
Plaintiff also carefully details all of the violations of policy
during the Reynolds incident in an effort to show the failure to enforce existing
policies. However, Monell requires that the pattern or custom of failing to
enforce existing policies "constitute a 'custom or usage' with the force
of law." It is only common sense that one incident of policy deviation,
however flagrant, cannot establish custom. Monell v. Department of Social
Services, 436 U.S. 658, 691, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978) (quoting Adickes v. S. H. Kress & Co.,
398 U.S. 144, 167-68, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970)); see also City
of Oklahoma City v. Tuttle, 471 U.S. 808, 820, 85 L. Ed. 2d 791, 105 S. Ct.
2427 (1985) (plurality). The Court has carefully reviewed the incident as it
unfolded. For purposes of argument the Court accepts that various policies were
not followed. However, until the events immediately proceeding Reynolds' injury
and death, the Court sees no actions which amount to unconstitutional or excess
force.
Plaintiff
also relies on articles from the Louisville Courier Journal to support the lack
of an adequate use of force policy. Such articles are inadmissable hearsay.
The Court sees no basis for considering them in summary judgment proceedings.
FED. R. CIV. P. 56(c); Tinsley v. General Motors Corp., 227 F.3d 700, 703 (6th
Cir. 2000). In any event, their importance is unclear. That thirty or forty instances of allegedly
excessive force took place over the past ten years does not support the
argument that the written force policies are not followed. The articles, in
fact, provide strong support for the opposite conclusion. In thirty-one of the
forty-one instances, officers were punished for violating the policy. To
support his claim, Plaintiff would need to show the existence of a significant
number of credible complaints of force in violation of the policy where no
discipline or review occurred. Only then would Plaintiff have a basis to claim
that the force policy is really no policy at all.
In other
cases where courts found municipal policy differed from the written policy,
Plaintiffs presented evidence that showed a pattern of failure to follow the
policy. See, e.g, Berry v. City of Detroit, 25 F.3d 1342, 1355 (1994)
(collecting cases). Such proof could include testimony about brutality complaints filed that resulted in no
corrective action, officer testimony about training in inappropriate methods of
prisoner extraction, or internal records showing frequent excessive force
complaints that were routinely disregarded. See, e.g., Spell v. McDaniel, 824 F.2d 1380 (4th Cir. 1987);
Fiacco v. City of Rensselaer, 783 F.2d 319 (2d Cir. 1986). Plaintiff, in
essence, seeks to make a res ipsa loquitur argument--thirty one instances of
excessive force occurred over the past ten years and, therefore, the use of
force policy is not followed. What the law requires, however, is a more precise
showing that in spite of these written polices that the corrections department
actually followed a different policy.
The other
evidence supporting Plaintiff's claims falls far short of that necessary to
show that the deviation from the written policy is "so permanent and well
settled as to constitute a 'custom or
[*735] usage' with the force of
law." Monell v. Department of Social Services, 436 U.S. 658, 691,
56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978) (quoting Adickes v. S. H. Kress &
Co., 398 U.S. 144, 167-68, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970)). That
Wilder observed a couple of instances where the policies were not followed over
his decade-long tenure does not give those deviations the force of law.
Similarly, the falsification of reports by officers after Reynolds was killed
does not demonstrate a "permanent and well settled" policy of the
department, especially where Plaintiff offers no evidence linking the
falsification of reports by low-level officers to department policy or custom.
See, e.g., Oklahoma City v. Tuttle, 471 U.S. 808, 831, 85 L. Ed. 2d 791, 105 S.
Ct. 2427 (1985) (Brennan, J.
concurring) (stating "to infer the existence of a city policy from the
isolated misconduct of a single, low-level officer, and then to hold the city
liable on the basis of that policy, would amount to permitting precisely the
theory of strict respondeat superior liability rejected in Monell").
Likewise, that some officers only received limited training on the use of force
does not support the claim that the policy on excessive force was not
followed.
Because
Plaintiff has demonstrated that the policies or customs of the Department of
Corrections perhaps differed from their written policies for only a couple of
the claimed policies, the majority of their § 1983 claims fail at this point.
Plaintiff has not shown sufficient evidence for municipal or policymaking
liability for any part of Counts II and III.
C.
The only remaining claims on Count I concern the policy of not
staffing the CERT and not providing videotapes. The Court will now consider
these claims in light of the final step of the municipal liability
inquiry.
Plaintiff
must connect the custom or policy with the constitutional deprivation.
City of Canton v. Harris, 489 U.S. 378, 385, 103 L. Ed. 2d 412, 109 S. Ct. 1197
(1989). Plaintiff's remaining constitutional claims cannot
overcome this final hurdle. The policy regarding CERT availability simply does
not connect with the excessive force allegedly used against Reynolds. If, indeed,
an atmosphere, of lawlessness pervaded the Department of Corrections, as
Plaintiff claims, then the availability of the CERT would be irrelevant, since
the alleged policy was for all guards to violate the law. Likewise, the
videotape policy has no bearing on the constitutional violation especially
when, as here, part of the incident was recorded on county videotape equipment.
Neither the alleged policy of not fully staffing CERT or failing to provide
videotapes can be identified as the "moving force" behind the constitutional violations that led
to Reynolds death. See Harris, 489 U.S. at 389. Therefore, the Municipal
Defendants are entitled to summary judgment on all § 1983 claims. Because
Plaintiff also sues Rose for failure to establish procedures, this same
analysis precludes Plaintiff's claim against Rose as well.
II.
Defendants Rose, Durham, McClellan, Dobbs and Lowe move for
summary judgment on Plaintiff's § 1983 and state law claims. They claim that
qualified immunity shields them from liability and that Plaintiff has not made
the showing required to prevail. The Court will consider the substantive merits
of Plaintiff's claims and then analyze Defendants' qualified immunity
arguments.
A.
Because Reynolds was in pretrial detention, the Eighth Amendment
determines [*736] his relevant
constitutional protections. See Danese v. Asman, 875 F.2d 1239, 1243 (6th Cir.
1989). To prevail on an excessive force claim, Plaintiff must show that force
was not "applied in a good-faith effort to maintain or restore
discipline," but rather "maliciously and sadistically to cause
harm." Hudson v. McMillian, 503 U.S. 1, 7, 117 L. Ed. 2d 156, 112 S. Ct.
995 (1992); Whitley v. Albers, 475 U.S. 312, 320-21, 89 L. Ed. 2d 251, 106 S.
Ct. 1078 (1986). In the excessive force claims, the two pronged
subjective/objective inquiry that the Eighth Amendment usually requires
collapses to the simple subjective question of the state of mind of those using
force. Hudson, 503 U.S. at 9 (stating
"when prison officials maliciously and sadistically use force to cause
harm, contemporary standards of decencyalways are violated"). Thus to
survive summary judgment, Plaintiff must proffer evidence that these Defendants
each maliciously and sadistically used force to cause harm.
Plaintiff puts forth many witness statements by inmates from the
internal investigation that followed Reynolds' death. In a prior order, this
Court ruled them sufficiently reliable for summary judgment purposes. Defendants
Durham, McClellan, Dobbs, and Lowe all participated, to varying degrees, in the
extraction and restraint of Reynolds while Defendant Rose supervised the
incident. Because Plaintiff does not allege that Rose actually touched
Reynolds, the Court will consider the claim against her separately. The inmate
statements, in marked contrast to the deposition testimony by the officers,
describe a disturbing scene where the officers repeatedly struck Reynolds after
he was shackled, baited him on and beat him when he responded to their provocations,
ignored pleas by Reynolds to stop, disregarded requests by a nurse to stop
applying force in order to treat Reynolds' injuries, and helped roll Reynolds
over so that Barnes could stand on Reynolds neck. Taking the evidence in the
light most favorable to Plaintiff, as this Court must, the inmate statements
describe a scene where the officers acted together to apply force maliciously
and sadistically for the very purpose of causing harm. Even though not all of
the defendants who participated in the incident, under Plaintiff's version of
the facts, struck Reynolds, they all acted in concert to restrain Reynolds. A
reasonable inference from the inmate accounts is that the guards all turned
Reynolds over to give Barnes better access to his head and neck region. A jury
could reasonably infer that such repositioning in order to allow a fellow guard
to apply deadly force is force applied maliciously and sadistically for the
very purpose of causing harm. As such, summary
judgment on this claim is inappropriate for these Defendants.
Defendant
Rose did not actually apply any force. To find Eighth Amendment supervisory
liability, Plaintiff must show that Rose acted with "deliberate
indifference" to a substantial risk that her employees would cause Reynolds
serious harm. See Curry v. Scott, 249 F.3d 493, 506 n.5 (6th Cir. 2001)
(holding that "prison officials are held liable for exposing prisoners to
excessive force at the hands of prison employees under the same 'deliberate
indifference' standard that Farmer v. Brennan [511 U.S. 825, 128 L. Ed. 2d 811,
114 S. Ct. 1970 (1994)] employs for prison officials who fail to protect
inmates from violence by others"); Blyden v. Mancusi, 186 F.3d 252, 265
(2d Cir. 1999). For excessive force claims under Farmer v. Brennan, Plaintiff
must show that Rose knew and disregarded "an excessive risk to inmate
health or safety." Curry, 249 F.3d at 506. Rose observed much of the
incident, especially the final minutes when the force applied killed Reynolds.
She failed to intervene in [*737]
circumstances where she knew that excessive force was being used. The
evidence, taken in the light most favorable to Plaintiff, could support a
finding of deliberate indifference and, therefore, § 1983 liability.
B.
Defendants say that qualified immunity insulates them from
liability. The doctrine of qualified immunity protects government officials
performing discretionary functions from liability for civil damages when their
conduct does not violate clearly established legal rights of which a reasonable
person would have known. Harlow v.
Fitzgerald, 457 U.S. 800, 818, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982). This Court uses a three-part test to
determine immunity: did a violation of a constitutional or statutory right
occur; was that right one that was clearly established and would be known by a
reasonable person; and has the plaintiff alleged sufficient facts to indicate
that the allegations, if proven, would be objectively unreasonable in light of
the established rights. Williams v.
Mehra, 186 F.3d 685, 691 (6th Cir. 1999) (citing Dickerson v. McClellan, 101
F.3d 1151, 1157-58 (6th Cir. 1996)). This analysis was recently reaffirmed by
the Supreme Court in Saucier v. Katz, 150 L. Ed. 2d 272, 121 S. Ct. 2151 (2001).
Here,
Plaintiff's factual allegations describe a clear deprivation of Reynold's
Eighth Amendment rights. The Supreme Court has clearly established the right to
be free from force applied maliciously and sadistically. Hudson v. McMillian,
503 U.S. 1, 117 L. Ed. 2d 156, 112 S. Ct. 995 (1992). Defendant Rose's
supervisory liability was likewise clearly established by the Supreme Court
before this incident took place. See Farmer v. Brennan, 511 U.S. 825, 128 L.
Ed. 2d 811, 114 S. Ct. 1970 (1994). Though Farmer dealt with supervisor
liability for failure to protect inmates from other inmates, the holding, as
recognized by the Sixth Circuit in Curry v. Scott, 249 F.3d 493, 506 n.5 (6th
Cir. 2001), necessarily covers harm from other sources. As such, the law
governing Rose's inaction was clearly established for qualified immunity
purposes: "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."
Saucier v. Katz, 150 L. Ed. 2d 272, 121 S. Ct. 2151, 2156 (2001). Here, under
Plaintiff's allegations, a reasonable supervisor in Rose's position would have
known that her failure to intervene was unlawful under Farmer. Finally,
Plaintiff's allegations, if proven, would be demonstrate objectively
unreasonable behavior on behalf of Defendants, including Rose. As such,
qualified immunity is not appropriate
for these Defendants because, under the facts Plaintiff alleged, their behavior
was objectively unreasonable in violation of clearly established law.
III.
Finally, Defendants Rose, Durham, Dobbs, and Lowe move for summary judgment on
Plaintiff's state law claims. Defendants first assert that state law provides
immunity for their actions. True, under Kentucky law, officials acting within
their authority and the law cannot be held liable. See Minger v. Green, 239
F.3d 793, 797 (6th Cir. 2001); Franklin County v. Malone, 957 S.W.2d 195, 202
(Ky. 1997). However, under Plaintiff's version of the facts, these individuals
exceeded their authority and the law, and, as such, can seek no shelter in
state immunity law. See Minger, 239 F.3d at 797 (holding that "a state
officer or employee is not immune from suit under Kentucky law when the
individual knowingly commits an intentional tort, wrongful act, or other form
of deliberate wrongdoing").
[*738]
Plaintiff seeks to recover under state law for battery and
wrongful death. Kentucky adopts the Restatement (Second) of Torts' definition
of battery. See Vitale v. Henchey, 24 S.W.3d 651, 657 (Ky. 2000). Under the
Restatement, "an actor is subject to liability to another for battery if
(a) he acts intending to cause a harmful or offensive contact with the person of
the other ... and (b) a harmful contact with the person of the other directly
or indirectly results." RESTATEMENT (SECOND) OF TORTS § 13 (1965). Since
the elements of battery are necessary, but not sufficient, elements of an
Eighth Amendment claim against non-supervisory defendants, the viability of
Plaintiff's Eighth Amendment action requires this Court to deny summary
judgment on the battery claim for all but Defendant Rose. Since Defendant Rose
did not touch Reynolds, her conduct, even under Plaintiff's version of the
facts, is not actionable under battery.
To prevail on a wrongful death claim, Plaintiff merely needs to
show that Reynolds' death resulted "from an injury inflicted by the
negligence or wrongful act of another." KENT. REV. STAT. ANN. § 411.130
(Lexis 2000). Again, if the Defendants were merely negligent, state immunity
law shields them from liability. See Minger v. Green, 239 F.3d 793, 797 (6th
Cir. 2001). Because Plaintiff's version of the facts meet the wrongful death
standard, summary judgment is inappropriate on this count for any of the
individual Defendants, including Defendant Rose, because § 411.130 imposes
liability without a touching requirement. Since the survival and parental
consortium claims require similar proof of negligence, these claims will endure
summary judgment as well. See, e.g., KENT. REV. STAT. ANN. § 411.145.
The Court will enter an order consistent with this Memorandum
Opinion.
JOHN G. HEYBURN II
JUDGE, U.S. DISTRICT COURT
ORDER
Being otherwise sufficiently advised,
IT IS HEREBY ORDERED that the motion for summary judgment by
Jefferson County Fiscal Court, Bishop, Armstrong, and Karsner is SUSTAINED and
those claims are DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that the motion for summary judgment by
Rose, Durham, McClellan, Dobbs, and Lowe is GRANTED IN PART and DENIED IN PART.
It is GRANTED with respect to Defendant Rose in Count III and the battery claim
of Count IV. It is DENIED with respect to Count IV for Durham, McClellan,
Dobbs, and Lowe and with respect to the wrongful death claim in Count IV for
Rose. It is DENIED for Rose, Durham, McClellan, Dobbs, and Lowe with respect to
Counts VI and VII.
IT IS FURTHER ORDERED that Plaintiff's claim against Rose in Count
III and the battery claim in Count IV is DISMISSED WITH PREJUDICE.
This 6th day of June, 2001.
JOHN G. HEYBURN II
JUDGE, U.S. DISTRICT COURT
FOOTNOTES:
n1 In order to simplify the analysis, this Court
will again assume, without deciding, that the failure to enact the CERT and
videotape policy rise to the level cognizable by Monell. In Section I.C of this
memorandum opinion, the Court concludes
that these alleged policies did not sufficiently relate to Mr. Reynold's
constitutional deprivation to be actionable under § 1983. The Court cannot
indulge in such an assumption, however, regarding the use of force policy.
n2 If Plaintiff seeks to call Wilder at
trial, this Court will weigh Defendants' arguments regarding timing of
disclosure at that time.
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