LAURIE RANGE, et al., Plaintiffs-Appellees (12-3857), Plaintiffs-Appellants/Cross-Appellees (12-4190 & 12-4192),
KENNETH DOUGLAS, Defendant, ESTATE OF BERNARD KERSKER, Individually and in his official capacity as an employee of Hamilton County, Ohio; ESTATE OF DR. FRANK CLEVELAND, on behalf of Dr. Cleveland in all his capacities; HAMILTON COUNTY, BOARD OF COUNTY COMMISSIONERS, Defendants-Appellants (12-3857), Defendants-Appellees/Cross-Appellants (12-4190 & 12-4192)
Argued, October 1, 2013
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Appeal from the United States District Court for the Southern District of Ohio at Cincinnati. No. 1:10-cv-00473--Michael R. Barrett, District Judge.
Pamela J. Sears, HAMILTON COUNTY PROSECUTOR'S OFFICE, Cincinnati, Ohio, for Appellants in 12-3857 and for Appellees/Cross-Appellants in 12-4190 and 12-4192.
Alphonse A. Gerhardstein, GERHARDSTEIN & BRANCH CO. LPA, Cincinnati, Ohio, for Appellees in 12-3857 and for Appellants/Cross-Appellees in 12-4190 and 12-4192.
Pamela J. Sears, Mark C. Vollman, Jerome A. Kunkel, HAMILTON COUNTY PROSECUTOR'S OFFICE, Cincinnati, Ohio, for Appellants in 12-3857 and for Appellees/Cross-Appellants in 12-4190 and 12-4192.
Alphonse A. Gerhardstein, Jennifer L. Branch, GERHARDSTEIN & BRANCH CO. LPA, Cincinnati, Ohio, Arthur W. Harmon, Jr., ARTHUR W. HARMON, JR. LLC, Cincinnati, Ohio, Joseph M. Hutson, COHEN, TODD, KITE & STANFORD, LLC, Cincinnati, Ohio for Appellees in 12-3857 and for Appellants/Cross-Appellees in 12-4190 and 12-4192.
Before: ROGERS, STRANCH, and DONALD, Circuit Judges.
JANE B. STRANCH,
These cases arose when the family members of
murdered young women discovered that the bodies of their loved ones had been
sexually abused. Kenneth Douglas, a former morgue attendant for the Hamilton
County Morgue, sexually abused an untold number of bodies while he was drunk or
high and on duty at the morgue. Three of the bodies Douglas sexually abused
belonged to family members of Plaintiffs. Plaintiffs sued Douglas himself, who
was convicted of the crime of gross abuse of a corpse, but the civil claims
against him are not part of these appeals. Plaintiffs also sued several Hamilton
County Defendants alleging state law claims and a claim under 42 U.S.C. § 1983.
After the district court granted partial summary judgment to the County
Defendants, the parties brought these separately docketed appeals.
In Case No. 12-3857, the County Defendants bring an interlocutory challenge to the denial of Ohio immunity regarding the state claims. Because a jury could find that the County Defendants recklessly and wantonly failed to supervise Douglas despite the known risks he posed to the bodies, we AFFIRM the denial of Ohio statutory immunity and remand those claims for further proceedings.
In Case Nos. 12-4190 and 12-4192, Plaintiffs bring a Rule 54(b) challenge to the grant of summary judgment based on qualified immunity to the County Defendants on the § 1983 claim, and the County Defendants cross-appeal. While we have no doubt as to the special nature of the relationship between Plaintiffs and their deceased relatives, we conclude that they cannot establish a constitutional violation as to the County Defendants. Therefore, we must AFFIRM the grant of summary judgment to the County Defendants on the § 1983 claim.
Over a number of years, Kenneth Douglas sexually abused the dead bodies of murder victims held at the Hamilton County Morgue. He sexually abused the body of Karen Range in 1982, an action that led to a false rape conviction of the man who was convicted of her murder. He sexually abused the bodies of Charlene Appling and Angel Hicks in 1991. Douglas's actions were discovered in 2007 after advances in forensic science allowed testing that matched his DNA to semen found in the bodies.
Douglas was regularly alone at the morgue, usually during the late afternoon or
evening hours, and had sex with each of the bodies while on duty and alone. Douglas said that the body of Range was the first one he abused, but admitted to abusing many other bodies as well. Douglas was regularly under the influence of alcohol, marijuana, and cocaine while at work and was under the influence every time he abused the bodies. An expert for Plaintiffs described Douglas as an " opportunistic necrophile" and opined that Douglas's substance abuse was a " major contributing factor to his sexual abuse of corpses."
During his time at the morgue, Douglas was directly supervised by Bernard Kersker, the morgue director, who was in turn supervised by Carol Maratea, the morgue administrator. Maratea was supervised by Dr. Frank Cleveland, the Coroner. Much in this case depends on what Kersker and Dr. Cleveland knew or had reason to know. For purposes of all issues on appeal, we must view the facts in the light most favorable to Plaintiffs.
Kersker admitted having concerns about Douglas's tardiness and dependability as far back as 1980. Douglas was often tardy and he used a significant number of sick days, especially in 1990 and 1991. Kersker said that he disciplined Douglas by docking his pay, making him stay late, and by having him talk to Dr. Cleveland, but that " I was going to keep him because I needed him." There is also evidence on the record suggesting that Kersker knew or should have known about Douglas's alcohol use and perhaps his drug use. A co-worker testified that he often smelled alcohol on Douglas before, during, or after his shift; that Douglas looked like " he had been partying every night" both at the beginning and end of his shift; and that he sometimes came to work drunk. Douglas testified that his cocaine addiction was so bad by 1992 that he could not perform his job duties because of heavy shaking. Douglas's former wife, Patricia Chavis, testified that she called Kersker to complain that
Douglas was drinking at work. Twice around 1987, she told Kersker that Douglas was coming home intoxicated and that she knew he was drinking at work because she called Douglas at the morgue fifteen minutes before he arrived at home. Kersker told her to stop calling the morgue and hung up on her. Kersker denied having these conversations, but another employee testified that he heard Kersker discussing them with Douglas.
The record also suggests that Kersker may have known that Douglas was having sex with live women at the morgue, something he apparently did with some frequency. Kersker himself took messages from the women who constantly called the morgue for Douglas, and Douglas's wife stated during one of her calls to Kersker that Douglas came home " smelling like sex." Chavis also told Maratea that she believed Douglas was having sex at the morgue, warned her about Douglas's drinking, and told her that other morgue employees were using cocaine.
Finally, Douglas himself testified that Kersker knew about his numerous run-ins with the law, including a domestic violence charge and two DUI's, because Douglas had to request vacation time for the period of incarceration. Douglas also testified that he told Kersker about his suicide attempt via overdose and his ensuing psychiatric hospital stay as well as his alcoholism.
During all this time, Kersker's supervision of Douglas never changed. There is testimony suggesting that the environment at the morgue was very " laid back" and that other employees were also drug users. At least one employee made lewd comments about the bodies of women that
came into the morgue. While Kersker denied allowing such behavior, he did say in a deposition that one of the risks of morgue attendants drinking at work is that they might disrespect or harm the bodies.
The claims in these appeals are against the " County Defendants" : Hamilton County through the Hamilton County Board of Commissioners, Kersker, and Dr. Cleveland. Plaintiffs brought three claims under Ohio tort law, alleging negligent infliction of emotional distress, intentional infliction of emotional distress, and negligent retention and supervision, and one claim under 42 U.S.C. § 1983, alleging due process violations.
After much discovery, the district court issued an order granting partial summary judgment to the County Defendants. As to the state claims, the court denied summary judgment on the basis of Ohio statutory immunity to the County Defendants because it found that there were genuine issues as to whether they supervised Douglas in a wanton and reckless manner, but granted Ohio common law immunity to Kersker and Dr. Cleveland regarding claims brought by the family of Karen Range. As to the § 1983 claim alleging a substantive due process violation, the district court granted summary judgment to the County Defendants. The court granted qualified immunity to Kersker and Dr. Cleveland because nothing in the ...