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WILLIAM FULTZ, PLAINTIFF v. RICHARD WHITTAKER, et al.,
DEFENDANTS
CIVIL ACTION NO. 3:98CV-374-H
UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF
KENTUCKY, LOUISVILLE DIVISION
MEMORANDUM OPINION
Defendants now move for summary judgment for failure to state a
claim upon which relief can be granted for qualified immunity. Plaintiff, William Fultz, is
paralyzed from the neck down due to a broken neck sustained during an arrest by
Oldham County police officers Richard Whittaker and Kevin Nuss ("Defendant
Officers"). Plaintiff's complaint under 42 U.S.C. § 1983 alleged
that Defendant Officers violated the Fourth, Fourteenth, and Eighth Amendments
to the United States Constitution and that the defendant government [*699]
agencies and supervising officials violated his constitutional rights
through certain municipal customs or policies. Plaintiff also alleges certain
state law causes of action.
Due to the
terrible injury, the uncertainty about
what caused it, and the sharp differences among witnesses about significant
aspects of the officers' conduct, the pending motions present particularly
difficult questions. The parties have agreed that some of the pending
claims should not be considered at this time.
I.
Because the legal issues on summary judgment turn on subtle and
hotly contested facts a detailed discussion of the record is appropriate.
Officers Nuss and Whittaker responded to a report of a domestic
disturbance at 1805 Button Lane in Oldham County, Kentucky. They arrived in two
separate police cruisers and entered the Fultz's property. Whittaker questioned
Woodford and Granville Fultz (Plaintiff's uncle and father respectively) about
the domestic violence report while Nuss remained by his car. During the
questioning, Plaintiff, evidently both intoxicated and agitated, approached the
officers in a manner they perceived as belligerent and verbally abusive. Nuss
Dep. at 69. Plaintiff came very close to Nuss, within inches of his face,
telling him to leave their property. Id. Nuss told Plaintiff to back up. n1
Plaintiff backed away a bit, but not far enough to satisfy Nuss. Id. at
71; Whittaker Dep. at 125.
Plaintiff's hands were in his back pockets. Nuss asked Plaintiff to show his
hands. After stalling for a few moments, Plaintiff removed his hands from his
pockets. As Plaintiff moved his hands, Whittaker claims he saw Plaintiff move
his hand "in a striking motion toward Officer Nuss." Whittaker Dep.
at 126. Woodford Fultz did not perceive this as an attempt by Plaintiff to harm
the officers. Woodford Fultz Dep. at 3. Whittaker did perceive imminent harm to
Nuss. He grabbed Plaintiff's arm, told Plaintiff he was under arrest, and
attempted to handcuff him. n2 Whittaker Dep. at 125-26; Nuss Dep. at 72. Nuss
also grabbed Plaintiff's arm. The two officers placed him on the hood of one of
the police cruisers to handcuff him.
Plaintiff responded by locking his hands together in front of
his chest. The two officers were unable to place his hands behind his back.
Whittaker sprayed Plaintiff's face with O.C. spray (a type of pepper spray) but
the spray seemed to have no effect. Whittaker Dep. at 126. The officers
continued struggling with Plaintiff, eventually rolling around on the grass.
After "scuffling" with the officers on the grass for several minutes
Plaintiff finally gave up. The officers handcuffed his hands behind his
back.
Five eyewitnesses observed some of the events from the time
Plaintiff was handcuffed to the time of the injury: two neighbors Cheryl
Willbanks-Gore ("Gore") and Daryl Jenkins; Woodford Fultz, and the
two officers. On a few key issues, the officers' version of the facts differs
from that of the other eyewitnesses. Specifically the witnesses disagree about
the type of hold Whittaker used on Plaintiff and about whether Whittaker acted
deliberately to break Plaintiff's neck.
[*700]
According to the officers, after handcuffing Plaintiff, they
pulled him up and walked him to a police cruiser. Nuss walked in front of
Plaintiff and Whittaker walked behind. Just as Nuss opened the rear door of the
cruiser door, Plaintiff kicked him in the inner upper thigh. Nuss Dep. at 103.
Immediately, Whittaker grabbed Plaintiff in what he described as a "bear
hug" and pulled him back away from Nuss. Whittaker Dep. at 129-30. As he
pulled Plaintiff, their legs became tangled; they both fell to the ground, and
Plaintiff's neck was broken in the fall. Id. at 129. Whittaker adamantly
insists that he did not have his hands' around Plaintiff's neck at any time,
id. at 186; that he never used a "choke hold," id. at 180, 186; but
instead had him in a "bear hug", id. at 129, 174, 186; or
"around the biceps." id at 173. Nuss confirms that Whittaker grabbed
Plaintiff around the "chest area" after Plaintiff kicked his inner
thigh. Nuss Dep. at 105. Photographs of Nuss' uniform confirm a footprint on
this part of his pants. Id. at 104. Nuss does not recall exactly how the fall
occurred because he was bent over checking himself. Id. at 105-06.
Gore, Jenkins, and Woodford Fultz present a different picture.
Gore was sitting at a picnic table across the street. The police cruiser
obstructed her view of Plaintiff's legs. Gore Dep. at 66. Initially, she
claimed not to have seen anything but
later came forward because she wanted to tell the truth, id. at 13, and she
felt that the police officers had wronged Plaintiff. Id. at 18. Prior to this incident
she had been introduced to Plaintiff just once. Id. at 44-45. She arrived at
the scene as the officers and Plaintiff were "scuffling." Id. at 51.
She states several times that as the car door was being opened, id at 75,
Whittaker was holding Plaintiff by the neck, id. at 52, 65, 66, 75, 78, his
right forearm up under Plaintiff's chin, id. at 67. She saw Plaintiff
"kick at the [car] door", id. at 66, 74, 75, and saw Officer Nuss
lean forward id. at 72. Then Whittaker "snapped," id. at 52, 71, 79,
or pulled back on Plaintiff's neck, Gore exclaimed, "they just snapped his
neck", id., and both men fell to the ground.
Gore insists that she saw Whittaker "snap" Plaintiff's
neck out of anger, indicating that she saw a deliberate act: "And then I seen
one of the officers just get frustrated--just angry, you know, "I'm tired
of this, " and just snapped his--snapped his neck, and then they went to
the ground." Id. at 52; "And
it was like the bigger officer had just gotten mad and snapped his neck, they
fell to the ground and that was it."; id. at 67; Question (By Defendants'
Attorney), "Now why do you--I mean, what did you see that you made you
think that the officer had gotten mad? Answer, "Well they had--like I
said, they had scuffled to begin with--they were on the ground and you can
just--I mean, you could--I could see it in his face that he was just, you
know--you know, he was tired of William, I guess, apparently struggling with
him. He was tired of having to. . .the look on his face was like he was tired
of William's attitude." Id. at 74.
Gore bases her belief that she saw Whittaker deliberately break
Plaintiff's neck on comparisons with television shows, particularly shows
portraying martial arts, in which one character breaks another's neck. Id. at
72-74. She said in these shows one can recognize an act purposefully aimed at
breaking someone's neck: ". . .you just grab them around their neck and
you twist like that [indicates a physical action] and they can snap it-or it
pops or. . ." Id. at 74. Her belief that Whittaker was acting in anger is
based on Whittaker's facial expressions. She said, "I could see it in
his face", id. at 74, and "I
could see the anger in his face", id. at 78. [*701]
Gore's husband, Daryl Lee Jenkins had just returned from the
grocery store when the officers arrived at the scene. He was sitting across the
one lane gravel road from the police cars with nothing obstructing his view of
the scuffle. Id. at 43. Jenkins had little interaction with Plaintiff. Jenkins
Dep. at 16.
Jenkins said several times that as Plaintiff was being placed in
the police car one of the officers had his arm around Plaintiff's neck with his
other hand behind his back, id at 46, 48, 49, 60, 72. He said explicitly that
the officer did not have Plaintiff in a bear hug, but around the neck. Id. at
48. He saw Plaintiff kick at what he believed was the car door, id. at 46,
although he also acknowledged that from his viewpoint he couldn't really tell
where he was kicking. Id. at 47. When Plaintiff's attorney asked him, "Did
you see the officer who had him restrained in the choke hold deliberately
wrench his neck?" he responded, "Yes, sir." Id. at 62. He said
the jerk and the fall looked like separate acts, id. at 62, and that Whittaker's
facial expression led him to believe
Whittaker was acting in anger, id. at 67, 68, 73. However, he also said
Whittaker may have jerked Plaintiff's neck in an attempt to protect Nuss from
being kicked, id. at 73 and acknowledged that he couldn't tell whether the jerk
of the neck and the fall were two separate acts or one continuous act. Id. at
71. He also confirmed that at the moment Whittaker jerked back on Plaintiff's
neck Gore exclaimed, "they just broke his neck." id. at 62.
Plaintiff's uncle, Woodford Fultz, was on the scene from the
moment the police arrived. He watched the scuffle looking at the backs of
Plaintiff and Whittaker after the officers handcuffed Plaintiff and were
approaching the car. Woodford Fultz Dep. at 49. He saw them approach the car
with Whittaker's arm around Plaintiff pulling his neck back. Id. at 5. He saw
Plaintiff kick at something, "I don't know if he kicked at the officer or
the door." Id. at 5. And then he saw them go down to the ground. Id. at 5.
Woodford Fultz states specifically that Whittaker's hold was not a "bear
hug", id. at 6, 14, 15, and that, "he just had that one arm right
around his neck." Id. at 6,40. Woodford Fultz does not say that the
officers intentionally harmed Plaintiff. Id. at 40, 42. However, later he says
he cannot really say what happened, if his neck broke in the fall or just when
it broke, id. at 42, "It could have
been an accident and it might not have been, I don't know." id. at
49.
Plaintiff himself does not remember anything from the point when
he was sprayed with O.C. spray to when he was lying on the grass and realized
his neck was broken.
There are expert opinions in the record. However, the parties
have agreed that expert testimony would not be considered at this stage. Later
on, that testimony could help resolve certain issues in the case.
II.
In order to prevail on a claim pursuant to 42 U.S.C. § 1983, a
plaintiff must establish that the defendant deprived him of a right secured by
the Constitution or laws of the United States, and that the defendant acted
under color of law. Flagg Bros. v. Brooks, 436 U.S. 149, 155, 56 L. Ed. 2d 185,
98 S. Ct. 1729 (1978). Under the doctrine of qualified immunity as defined by
Harlow v. Fitzgerald, "government officials performing discretionary
functions, generally are shielded from liability for civil damages [under §
1983] insofar as their conduct does not violate clearly established statutory
or constitutional rights of which a reasonable person would have known."
457 U.S. 800, 818, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982) (citations omitted). [*702]
The central purpose underlying qualified immunity is to protect public
officials from "undue interference with their duties and from potentially
disabling threats of liability." Elder v. Holloway, 510 U.S. 510, 514, 127
L. Ed. 2d 344, 114 S. Ct. 1019 (1994) (quoting Harlow, 457 U.S. at 806).
Because qualified immunity is "an immunity from suit rather than a mere
defense to liability," it is important to resolve it at the earliest
possible stage in litigation. Black v.
Parke, 4 F.3d 442, 445 (6th Cir. 1993) (citing Hunter v. Bryant, 502 U.S. 224,
227, 116 L. Ed. 2d 589, 112 S. Ct. 534 (1991)).
Whether to grant qualified immunity is normally a question of
law for the court but when this question turns upon which version of contested
facts one accepts, "the jury, not the judge, must determine
liability." Fisher v. Memphis, 234 F.3d 312, 317 (6th Cir. 2000) (citing
Sova v. Mt. Pleasant, 142 F.3d 898, 903 (6th Cir. 1998)); Black, 4 F.3d at 445.
When the issue of qualified immunity arises on summary judgment, the Court must
draw all reasonable inferences of the factual evidence in favor of the
non-moving party. Williams v. Mehra,
186 F.3d 685, 689 (6th Cir. 1999). However, in order to prevail, "the
non-movant must show sufficient evidence to create a genuine issue of material
fact." Id. A "mere scintilla of evidence is insufficient; there must
be evidence on which the jury could reasonably find for the [non-movant]."
Id. (citations omitted).
The Sixth Circuit has adopted a three part test to determine
whether qualified immunity should be granted: first, a constitutional violation
must have occurred; second, the right that was violated must be clearly
established such that a reasonable person would be aware of it; finally, the
plaintiff must allege sufficient facts, supported by sufficient evidence, to
indicate that what the official did was objectively unreasonable in light of
the clearly established constitutional rights. Id. at 691 (citing Dickerson v. McClellan, 101 F.3d 1151, 1157-58
(6th Cir. 1996)).
Here,
Plaintiff claims he was deprived of a constitutional right by: (1) arrest
without probable cause; (2) Whittaker's use of pepper spray; (3) being held by Whittaker in a choke-hold or a head-lock in a manner
that constitutes an unreasonable use of force; (4) Whittaker deliberately
wrenching, twisting, or jerking his neck in a manner purposefully calculated to
cause serious bodily harm; and (5) being denied adequate medical care by being
left on the ground for forty-five minutes before an ambulance arrived. The
Court must consider qualified immunity as to each.
III.
Plaintiffs' first claim is that Defendants Whittaker and Nuss
arrested him without probable cause. Arrest without probable cause does violate
the Fourth Amendment. Donovan v.
Thames, 105 F.3d 291, 297-98 (6th Cir. 1997) (citing Beck v. Ohio, 379 U.S. 89,
90-91, 13 L. Ed. 2d 142, 85 S. Ct. 223 (1964)). Whether probable cause to
arrest exists depends on the knowledge of the arresting officers. Smith v. Thornburg, 136 F.3d 1070, 1077 (6th
Cir. 1998). Here, Whittaker and Nuss claim they had probable cause to arrest
Plaintiff for the crime of menacing. The officers' claim of qualified immunity
will fail only if a reasonable and prudent officer would not believe he or she
had probable cause to arrest Plaintiff for Menacing. See Donovan, 105 F.3d at
298.
KRS 508.050
provides that "A person is guilty of menacing when he intentionally places
another person in reasonable apprehension of imminent physical injury."
Both officers and Woodford Fultz state that Plaintiff Fultz came very close to
the officers. The officers say Plaintiff had an aggressive posture and was yelling.
No other testimony disputes
[*703] this. Whittaker says he
saw Plaintiff try to swing at Nuss. Another interpretation could view Plaintiff
as responding to the Defendant officers' request to bring his hands into full
view. Based upon the circumstances and Plaintiff's physical movements,
Whittaker's belief that Plaintiff was threatening Nuss was reasonable, even if
it might have been mistaken. This threatening posture could have led either
officer to believe Plaintiff would soon try to injure them.
Drawing all
reasonable inferences in favor of the Plaintiff, this Court finds that a
reasonable and prudent officer would have probable cause to arrest Plaintiff
for menacing. Therefore, the officers are entitled to qualified immunity as to
that claim.
IV.
Plaintiff next claims a violation of his Fourth Amendment right
to be free of excessive force. He alleges that Whittaker used excessive force
in three ways: spraying him with O.C. spray; using an unreasonably dangerous
choke-hold or neck hold; and deliberately wrenching or twisting his neck. As to
each claim, the Court must decide whether: (1) Plaintiff has alleged violation
of a constitutional right; (2) the right is clearly established; and (3)
Plaintiff supported this claim with sufficient evidence to indicate the
officer's action was objectively unreasonable.
A.
No one disputes that in trying to handcuff Plaintiff one of
Whittaker's first moves was to spray Plaintiff with O.C. spray. As recently as
1997 the Sixth Circuit found that the use of pepper spray by a police officer
attempting to take someone into custody is reasonable. Monday v. Oullette, 118 F.3d 1099, 1104-05
(6th Cir. 1997) ("The decision by [the officer to use pepper spray] rather than risk injury and further delay
through a physical confrontation with a large and intoxicated person did not
constitute excessive force.").
Our case is somewhat similar. No one disputes that Plaintiff was
belligerent, ignored reasonable requests and, at the least, passively resisted
arrest prior to the use of the O.C. spray. Plaintiff presents no actual evidence that the O.C. spray caused anything
other than its intended temporary discomfort and disorientation. Some might say
that the use of O.C. spray this early in the confrontation was unnecessary.
However, in these circumstances, a reasonable police officer could believe that
Officer Whittaker's decision to use O.C. spray was proper and certainly was not
excessive force. Therefore, Whittaker is entitled to qualified immunity on this
claim as well.
B.
The Court considers next whether Plaintiff states a
constitutional claim as a result of Whittaker holding Plaintiff by the neck. To
be sure, both officers claim that at the moment Plaintiff, in handcuffs, kicked
Officer Nuss, Whittaker grabbed Plaintiff around the chest in a "Bear
Hug." However, three eyewitnesses said unequivocally that Whittaker was
holding Plaintiff around the neck. n3 For purposes of summary [*704]
judgment and qualified immunity, the Court must assume that the officers
had some kind of hold around Plaintiff's neck. See Fisher, 234 F.3d at 317.
Whether Whittaker deprived Plaintiff of a constitutional right
in holding him by the neck depends on the degree to which this hold creates a danger
of serious injury. On this issue both the law and the facts are uncertain.
Under the Fourth Amendment, a "seizure" is constitutional only to the
extent that it is reasonable. Tennessee
v. Garner, 471 U.S. 1, 6, 85 L. Ed. 2d 1, 105 S. Ct. 1694 (1985). Determining
whether a particular use of force is reasonable requires careful analysis of
the facts and circumstances of each particular case. Graham v. Connor, 490 U.S. 386, 396, 104 L. Ed. 2d 443, 109 S.
Ct. 1865 (1989). In the context of the Fourteenth Amendment n4, the Supreme
Court recognizes that the culpability of a police officer trying to effect an
arrest falls along a spectrum.
Sacramento v. Lewis, 523 U.S. 833, 849, 140 L. Ed. 2d 1043, 118 S. Ct.
1708 (1998). "Negligently inflicted harm is categorically beneath the
threshold of Constitutional due process." Id. (citations omitted). At the
other end of the spectrum is conduct intended to injure someone in a manner
not justified by any government interest.
Id. Prior to Lewis, the Sixth Circuit drew
the line at deliberate indifference. Stemler v. City of Florence, 126 F.3d 856,
870 (6th Cir. 1997) (". . .where the plaintiff suffered injury as a result
of being placed in the state's custody, it has consistently and
uncontroversially been the rule that a constitutional claim arises where the
injury occurred as a result of the state's deliberate indifference to the risk
of such an injury."). Lewis modified this rule distinguishing emergency
situations in which an officer must make a decisive and quick decision. In such
situations, an officer has no time for deliberation and is therefore held to
the higher "shocks the conscience" standard. Lewis, 523 U.S. at 851.
The Court discussed these issues at some length with the
parties. The parties focused their discussion on two possible causes of the
injuries. Plaintiff's emphasized that Whittaker intentionally used force to
cause serious injury. Defendants said that the injuries were an accidental
result of the fall. Neither gave adequate consideration to the middle ground:
that Plaintiff's injury resulted from a combination of the dangerous
choke-hold, the handcuffs, and the dynamics of the fall. Whether Whittaker's
hold, in these circumstances, subjected Plaintiff to such a great risk of
serious bodily harm that no reasonable officer would believe such a hold was
lawful is a close question.
That it may not have been good police procedure to hold a
handcuffed prisoner around the neck is not a constitutional violation.
Plaintiff did demonstrated a threat to Defendant officers and had resisted
arrest. Further Plaintiff has no evidence that Whittaker used force which
caused harm, pain or other physical injury during the brief walk after the
scuffle to [*705] the police car. The significant evidentiary
fact is that prior to Plaintiff's kick Whittaker never applied the choke-hold
in a manner which caused injury. Using
an unauthorized hold or procedure, where the force itself is not excessive,
does not create a constitutional violation. n5
However, a hold that subjects someone to serious risk of great
bodily harm could be a constitutional violation. The danger to which Whittaker
may have subjected Plaintiff in holding Plaintiff around the neck is a material
fact which is, as yet, undeveloped but is ripe for expert opinion. n6 Should
the expert testimony reveal evidence that Whittaker's hold created the risk of
serious bodily injury, a jury could conclude no reasonable officer would use
such a hold and that the injuries sustained here were a reasonably foreseeable
consequence of the hold. Because the parties have not finished expert
disclosures, the Court believes that it has insufficient information to rule on
the question of qualified immunity as to this second possibility. Summary
judgment at this stage is inappropriate. The Court will consider subsequent
motions on this issue upon the close of discovery.
C.
Plaintiff's third allegation of excessive force is that
Whittaker wrenched or twisted Plaintiff's neck in a move either purposefully
designed to cause serious injury or which he knew was likely to cause serious
injury. No reasonable police officer could believe the law permits a police
officer to purposefully wrench someone's neck in this manner, even under these
circumstances. It is clearly established that force intended to cause
serious injury or death is
unconstitutional unless necessary to apprehend a fleeing felon or the suspect
poses a threat to the safety of the officers or a danger to the community. See
Garner, 471 U.S. at 6. Even if Plaintiff is deemed to have kicked Nuss in the
groin, the handcuffs prevented him from posing any credible threat to the
officers or others. Nuss had many options other than deadly force.
The more difficult issue is whether Plaintiff has supported this
allegation with sufficient evidence to allow a reasonable jury to believe
Whittaker acted to purposefully break Plaintiff's neck. The testimony of two
possibly disinterested witnesses gives some support to Plaintiff's allegation
that Whittaker intended to cause serious injury. The testimony and the
interpretation of it, is hotly disputed. Without a more precise description of
Whittaker's actions, Gore's statements to the effect that she saw Whittaker
deliberately break Plaintiff's neck are at best interpretations of what she
perceived. These perceptions could be an honest but mistaken interpretation but
they could also be correct. As a matter of perception, there is only a subtle
difference between Plaintiff's neck
inadvertently breaking as a consequence of falling while in Whittaker's
grasp, and Whittaker intentionally breaking Plaintiff's neck just prior to
falling or in the course of the fall. Gore could not perceive Whittaker's
intentions. However, witnesses commonly infer the motive and character
underlying certain physical acts by watching an actor perform the act. [*706]
This is the sort of act that is so subtle that the true character of the
act could only be inferred by one watching it and rendering an immediate
judgement based on the totality of what was perceived.
Gore's exclamation, "they just broke his neck"
pronounced before the men fell to the ground and before Plaintiff himself said
"my neck's broke" adds credibility to her assessment. The fact that
she may have this pronouncement before the men fell suggests that Whittaker's
breaking of the neck could have been a distinct act that was separate from the
fall. This also suggests that her interpretation was not manufactured after the
fact out of sympathy for Plaintiff's suffering but was an immediate assessment
of what she had seen. Jenkin's confirmation of her excited utterance adds
further weight to Gore's credibility.
Some of Jenkins'
testimony also generally supports the theory that Whittaker deliberately
broke Plaintiff's neck. Responding to a question by Plaintiff's attorney he
affirmed this theory. Based on Whittaker's facial expressions he concluded
Whittaker was acting in anger. However, Jenkins's description of the event is
less precise than Gore's and he is less resolute in his belief that the
twisting of the neck is a separate and deliberate act acknowledging, upon
questioning by the Defendants' attorney, that it was possible that Plaintiff's
neck was broken during the fall as a single act.
The other testimony is inconclusive. Woodford Fultz's testimony
on this issue offers little help. He believes that it was an accident but also
says he's not sure what happened. At this stage, the experts' testimony on this
issue is also inconclusive.
Taking all this
evidence together and drawing all reasonable inferences in favor of the
non-moving party, some evidence does seem to support the proposition that
Whittaker deliberately used force which he knew could cause serious injury or
break Plaintiff's neck. To be sure, this is an extraordinary claim. No
apparent motive, except sudden anger and frustration, suggests that Whittaker would take such action.
However, it is not the Court's role in deciding a motion for summary judgment
to evaluate the credibility of witness testimony. It is possible that, in a
moment of anger or frustration, a police officer, pumped with adrenaline from
wrestling with a suspect and seeing his partner kicked near the groin, would
deliberately use excessive force, which broke a suspect's neck. More important,
some eyewitness testimony supports this conclusion. While the witnesses could
be mistaken and their perceptions discounted, their claim does not appear to be
so lacking in support, so motivated by prejudice, or so incompetent that a
reasonable jury could not believe them. One could not say that a jury would be
unreasonable in believing Ms. Willbanks-Gore and Mr. Jenkins and disbelieving
the officers. n7 Therefore, this Court concludes that Plaintiff has supported
this allegation with sufficient evidence. Consequently, the Court must deny
qualified immunity on this claim.
V.
Plaintiff's
final § 1983 claim against the Defendant Officers is that they deprived him of
a constitutional right by deliberate indifference to his need for emergency
medical treatment. Plaintiff argues that it took forty-five minutes for the
ambulance to arrive and that this constitutes deliberate indifference to
Plaintiff's [*707] medical needs. In Estelle v. Gamble, 429
U.S. 97, 104, 50 L. Ed. 2d 251, 97 S. Ct. 285 (1976), the Supreme Court
held that the Eighth Amendment is violated when prison officials are
deliberately indifferent to the serious medical needs of prisoners. See also
Hicks v. Frey, 992 F.2d 1450, 1454-55 (6th Cir.1993). An official acts with
deliberate indifference to a suspect's medical needs when the official knows of
and disregards an excessive risk to a suspect's safety or health. Sanderfer v.
Nichols, 62 F.3d 151, 155 (6th Cir.1995).
Here, the officer's do not appear to have done anything
unreasonable in calling for emergency medical assistance. Plaintiff's sole
evidence in support of his theory that there was undue delay in summoning
medical assistance is the testimony of two witnesses, Woodford Fultz who said
it took the officers "fifteen or twenty minutes" to radio for help,
Woodford Fultz Dep. at 50, and Daryl Lee Jenkins who said Plaintiff was on the
ground about forty-five minutes before leaving in an ambulance. Jenkins Dep. at
50. Both of these are subjective recollections, neither witness checked their
watches to mark the time. Their observations are entirely inconsistent with
some existing objective facts. Oldham County Emergency Dispatch records show
that the officers arrived at the Fultz residence at 3:41 p.m. and that they
called for emergency medical services six minutes later at 3:47. It is
difficult to measure time accurately by subjective recollection, especially
when recalling a time of crisis. The run sheets are kept by people with a duty
to keep accurate records and these records reflect a prompt response to
Plaintiff's needs. n8 On these facts no reasonable jury could believe these
officers acted with deliberate indifference to Plaintiff's medical needs.
Qualified immunity on this claim is appropriate.
VI.
Plaintiff's § 1983 claims against several county-level
government agencies and officials allege that these defendants violated
Plaintiffs' Constitutional rights by failing to adequately train Defendants
Whittaker and Nuss on the use of force in effecting an arrest. These defendants
are the Oldham County Police Merit Board n9 ("Merit Board"); Oldham
County, Kentucky ("County"); the Oldham County Fiscal Court n10
("OCFC"); Oldham County Judge Executive John Black; the Oldham County
Police Department ("OCPD"); and Oldham County Police Chief Gene
Hicks. The parties agreed not to submit argument as to Plaintiff's federal constitutional claim of inadequate training
on the part of Oldham Count Fiscal Court. Therefore, the Court has not
considered qualified immunity as to that issue. However, the Court can decide
some threshold issues.
[*708]
Maintaining an action against both OCFC and all the other
county-level government agencies and officials is redundant. Since OCFC is the real
party in interest the claims against the Merit Board, the County, John Black
(in his official capacity), the Police Department, and Gene Hicks (in his
official capacity) can be dismissed. n11 A section 1983 claimant suing a
municipality must name as a defendant a municipal entity that is capable of
being sued. Under the Federal Rules of Civil Procedure whether an entity may
sue or be sued is determined by the law of the state in which the district
court is held. Fed. R. Civ. P. 17(b); Darby v. Pasadena Police Dept., 939 F.2d
311, 313 (5th Cir. 1991).
Under Kentucky law the Merit Board and the OCPD are creations of
the OCFC and have no legal existence separate and apart from the OCFC.
Likewise, Oldham County itself can only be sued through the OCFC. In Kentucky
"fiscal courts" are local legislative bodies that govern counties.
Ky. Rev. Stat. Ann.("KRS") § 65.410(1) (2000); KRS § 67B.020 (2)
(2000); C&H Entertainment, Inc. v. Jefferson County Fiscal Court, 169 F.3d
1023, 1024 (6th Cir. 1999). Fiscal courts are vested with the ability to
provide local governmental services, KRS 67.080, among which is the duty to provide for police protection. KRS
67.083(3)(u).
Similarly, a suit against an individual "in his official
capacity" is essentially a suit brought directly against the local
government unit. Leach v. Shelby County
Sheriff 891 F.2d 1241, 1245 (6th Cir. 1991). In contrast to personal capacity
suits, official capacity suits, "represent only another way of pleading an
action against an entity of which an officer is an agent. . .it is not a suit
against the official personally, for the real party in interest is the
entity" Kentucky v. Graham, 473 U.S. 159, 165-66, 87 L. Ed. 2d 114, 105 S.
Ct. 3099 (1985). Since the Fiscal Court is liable for the official actions of
its senior policy-making officials, n12 dismissing the suit against John Black
and Gene Hicks in their official capacities makes no practical difference. Jungels v. Pierce, 825 F.2d 1127, 1129 (7th
Cir. 1987) (Posner, J.,). However, Plaintiffs' actions against the individual
defendants in their official capacities do duplicate the action against the
Fiscal Court and for the sake of accuracy Defendants John Black and Gene Hicks
should be dismissed to the extent they are sued only in their official
capacity.
A county cannot be held liable for its own unconstitutional or
illegal policies alone. Monell v. Dept.
of Social Services, 436 U.S. 658, 691, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978);
Brown v. Shaner, 172 F.3d 927, 930 (6th Cir. 1999). "The inadequacy of
police training may serve as the basis
for § 1983 liability only where the failure to train amounts to deliberate
indifference to the rights of persons which whom the police come into contact."
City of Canton v. Harris, 489 U.S. 378, 388, 103 L. Ed. 2d 412, 109 S. Ct. 1197
(1989); Brown, 172 F.3d at 930. As an example of when a failure to train could
amount to deliberate indifference the Court noted that since city officials
know to a moral certainty that police officers will arrest fleeing felons, and
since the city has armed [*709] its officers with firearms to use in making
such arrests, a failure to train officers on the constitutional limits of the
use of deadly force could be characterized as deliberate indifference to constitutional
rights. City of Canton, 489 U.S. at
390n.10. In that case the Supreme Court inferred deliberate indifference
because the need for such training is obvious in light of the constitutional
violations likely to occur in its absence.
Id. at 390.
Any
deficiency in training must be closely related to the ultimate injury and must
have actually caused the injury. Id. at
391. The "deliberate indifference" standard allows for the fact that
adequately trained officers occasionally make mistakes. Id. Such random
mistakes by otherwise well trained officers say little about a training program
and do not provide a legal basis for holding the city liable. Id. An unconstitutional
policy can also be shown by improper supervision. To succeed a plaintiff must
show not only that the supervisor was negligent in tolerating an
unconstitutional practice but also that the supervisor encouraged the specific
incident of misconduct or directly participated in it. Sova v. City of Mt. Pleasant, 142 F.3d 898,
904 (6th Cir. 1998) (quoting Lillard v. Shelby County Bd. of Educ., 76 F.3d
716, 727 (6th Cir.1996)). However, neither a county nor its policy making
officials can be held liable where
there is no underlying constitutional deprivation. Claybrook v. Birchwell, 199 F.3d 350, 361 (6th Cir. 2000)
(quoting City of Los Angeles v. Heller, 475 U.S. 796, 799, 89 L. Ed. 2d 806,
106 S. Ct. 1571 (1986) (per curiam).
Here, Plaintiffs claims against OCFC based on arrest without
probable cause and excessive force by Whittaker in spraying him with O.C. spray should be dismissed
since the underlying claims do not allege a constitutional violation.
Similarly, Plaintiff's claim against OCFC based on Whittaker and Nuss' failure
to promptly summon an ambulance can be dismissed since the Plaintiff has not
alleged facts from which a reasonable jury could believe a constitutional
violation occurred. Nor has Plaintiff alleged sufficient facts to show that
Oldham county's supervisory personnel encouraged or participated in the incident
that resulted in Plaintiff's injury. Therefore, Plaintiff's claims of improper
supervision have no basis as applied to these underlying claims that have been
dismissed.
The remainder of Plaintiff's inadequate training claim under §
1983 is not ready for this Court's review. n13
VII.
In addition to the § 1983 cause of action, Plaintiff also brings several state law claims, for
assault and battery, outrage, and false arrest. Common law claims asserted against
a police officer for actions taken in the course of an arrest naturally raise
the issue of Kentucky's law of sovereign immunity. This issue has not yet been
briefed by the parties. In Franklin County v. Malone, 957 S.W.2d 195, 202 (Ky.
1997), the Supreme Court of Kentucky held that police officers acting within
the scope of their authority are entitled to claim sovereign immunity and the
only recourse available is through Kentucky's Board of Claims. Franklin County
considered a claim for negligence. Whether Kentucky's law of sovereign immunity
also covers intentional torts is uncertain. The parties should have had an
opportunity to brief this issue before the Court decides [*710]
whether these state law claims should be dismissed.
The Court will enter an order consistent with this Memorandum
Opinion.
JOHN G. HEYBURN II
JUDGE, U.S. DISTRICT COURT
5/8/01
ORDER
Defendants have moved for summary judgment on a variety of
grounds, including qualified immunity. In summary, Plaintiff's claims against Defendant Officers Whittaker and Nuss based on arrest without probable cause, excessive
force by the use of pepper spray, and deliberate indifference to Plaintiff's
medical needs are dismissed. Plaintiff's claims against the Defendant
government agencies and supervising officials are dismissed, except as to
Defendant Oldham County Fiscal Court ("OCFC"). Only those claims that
survive against the individual officers may serve as a basis for liability by
the OCFC. Being otherwise sufficiently advised,
IT IS HEREBY ORDERED that Defendants' motion for qualified
immunity is SUSTAINED IN PART. All Plaintiff's federal claims are DISMISSED
WITH PREJUDICE, except Plaintiff's claim that the use of the choke-hold or the
use of other excessive force caused his broken neck.
IT IS FURTHER ORDERED that the complaint as to Defendants John
Black, Gene Hicks, Tim Scott, Mary Glenn McMurray, Jerome Hartley, Edmond
Weatherby, Donald Adams, Norman Brown, Bob Deibel, Paula Gish, Rich Rash, Bill
Tucker, Gilbert Winters, James Shaw and the Oldham County Police Department is
DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that Plaintiff's complaint as to Oldham
County Fiscal Court is DISMISSED WITH PREJUDICE, except as to the federal
constitutional claims of inadequate training regarding the use of neck holds or
inadequate training in the use of force in making an arrest.
This 8th day of May, 2001.
JOHN G. HEYBURN II
JUDGE, U.S. DISTRICT COURT
FOOTNOTES:
n1 Woodford Fultz,
Plaintiff's uncle, was standing nearby. He confirms that Plaintiff was close to
the officers, "up in their face", and that the officers said,
"back up." Woodford Fultz Dep. at 3. Though it is not important for
this analysis, he did not believe Plaintiff intended to hurt the officers. Id.
n2 Although Plaintiff was
told he was under arrest, no specific charges were identified at this time.
n3 Although these witnesses are clear in describing Whittaker's hold on Plaintiff as some sort of hold with Whittaker's arm around Plaintiff's neck, they do not describe the precise nature of this hold. During oral argument, Defendants' counsel pointed out that "choke hold" is a term of art among police describing a particular type of hold designed to render someone unconscious by blocking the flow of blood to the head. These lay witnesses do not have the expertise to recognize such a hold or the vocabulary to describe it. However, for the purposes of the present motion it is not necessary to determine the precise nature of Whittaker's hold. Any hold that creates an unreasonable risk of injury to the spinal chord could lead to excessive force, whether it is a technical choke hold or a simple head lock.
n4 Both the Supreme Court and the Sixth Circuit
have indicated that the different standards of care imposed by the Fourth,
Eighth, and Fourteenth Amendments are not categorically distinct. Lewis, a
Fourteenth Amendment case drew upon Graham v. Conner, a Fourth Amendment
Seizure, and Rochin v. California, 342 U.S. 165, 96 L. Ed. 183, 72 S. Ct. 205
(1952), a Fourth Amendment Search. The Sixth Circuit based its "deliberate
indifference" rule in Stemler v. City of Florence, 126 F.3d 856, 870 (6th
Cir. 1997), on a series of cases involving the Eighth Amendment finding them
applicable under the general category of duties owed to "persons in the
custody of the state." See id.
n5 Similarly, § 1983 does not reach claims
based on negligence--even when such negligence is gross. See Lewellen v. Metropolitan
Government, 34 F.3d 345, 351 (6th Cir. 1994); Collins v. Harker Heights, 503
U.S. 115, 128, 117 L. Ed. 2d 261, 112 S. Ct. 1061 (1992).
n6 Officer Nuss's statements
that a choke hold presents "very, very serious deadly force issues"
and that a choke hold should never be used on a person in handcuffs, Nuss Dep.
At 115-16, do provide evidence supporting Plaintiff's position but they are
not, by themselves, conclusive.
n7 It is axiomatic that a
jury cannot regard a police officer's testimony as more or less credibly solely
by virtue of their status as police officers.
n8 Plaintiff claims he is
being denied access to audio tapes that could prove his allegation that there
was an undue delay in summoning medical assistance. The proper recourse for
this claim is to file a motion to compel Defendants to produce these tapes. If,
after reviewing these tapes, Plaintiff discovers relevant evidence supporting
his claim, and if this evidence was wrongfully withheld at the time Plaintiff
filed his response, Plaintiff may file a Motion to Reconsider which this Court
will carefully review.
n9 The Merit Board members
named in the complaint are:
Tim Scott
Mary Glenn McMurray
Jerome Hartley
Edmond Weatherby
n10 OCFC members named in the
complaint are:
Donald Adams
Norman Brown
Bob Deibel
Paula Gish
Rick Rash
Bill Tucker
Gilbert Winters
James Shaw
n11 Plaintiff's complaint
does not actually specify whether John Black and Gene Hicks are sued in their official
or personal capacities. However, Plaintiff has not alleged any fact or made any
argument that suggests these he is bringing any claim against Black or Hicks in
their personal capacities. Therefore it is assumed that they are sued only in
their official capacities.
n12 This Memorandum Opinion
expresses no opinion as to whether any of the named individual defendants are
senior policy-making officials.
n13 The Court does note that
to the extent Plaintiff argues that Defendant Officers intentionally used
excess force, this would diminish the potential for an inadequate training
claim.
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