United States District Court, E.D. Kentucky, Central Division, Lexington
ROBERT M. McKINNEY, et al., Plaintiffs.
LEXINGTON-FAYETTE URBA COUNTY GOVERNMENT, et al., Defendants.
MEMORANDUM OPINION AND ORDER
KAREN K. CALDWELL, Chief District Judge.
On May 22, 2012, Jeffrey M. McKinney died while incarcerated in the Fayette County Detention Center ("FCDC"). Plaintiffs brought an action against Defendants for alleged deliberate indifference, excessive force, ratification of illegal and unconstitutional conduct, illegal policies and practices, inadequate training and supervision, and a custom of tolerance for failing to provide necessary medical care all in violation of 42 U.S.C. § 1983, the Eighth Amendment's prohibition against cruel and unusual punishment, and various Kentucky torts. The Defendants moved for complete or partial summary judgment with respect to these claims. (DE 176; DE 177; DE 182). For the following reasons, the Court will grant in part and deny in part the Defendants' motions.
On May 17, 2012, Jeffrey McKinney pleaded guilty to a second offense of operating a motor vehicle while impaired and received a fourteen-day sentence. (DE 178-3 Guilty Plea at 2-3.) He reported to FCDC later that day and, during his intake, he stated that he suffered from various medical conditions that required him to take medications. (DE 178-4 Intake Questionnaire at 2.) McKinney told the intake nurse that he suffered from seizures; a traumatic brain injury and a skull fracture from an ATV accident; and hypertension. (DE 182-2 Dep. of Christina Brown, hereinafter "Brown Dep., " at 39-40.) He brought his medication to FCDC. The intake nurse noted that McKinney regularly took the following medications: (1) Ativan, a benzodiazepine that acts as an antianxiety, anticonvulsant, muscle relaxant, sedative, and amnestic; (2) Keppra, antiseizure medication; (3) Depakote, antiseizure medication; (4) Lisinopril, an angiotensin-converting enzyme ("ACE") inhibitor used to treat hypertension, congestive heart failure, and heart attacks; (5) Flexeril, a muscle relaxant; (6) Zanaflex, a muscle relaxant; (7) Hydromorphone, an opioid pain medication; (8) Trazodone, an antidepressant; (9) Cymbalta, used to treat depression, anxiety, and fibromyalgia; (10) Prevacid, an inhibitor of the stomach's production of gastric acids; and (11) Guaifenesin, an expectorant that helps loosen congestion in the chest and throat easing the ability to cough out through the mouth. (Brown Dep. at 46-48, 50-51.) FCDC, however, does not permit inmates to use narcotic medications unless the medical staff "can verify that there's a reason, legitimate reason, for [the inmate] to take them and continue them." (DE 180-5 Dep. of Donna Schwartz, hereinafter "Schwartz Dep., " at 58.) Therefore, the nurse practitioner ordered that McKinney receive a "benzodiazepine withdrawal protocol, " slowly reducing the dosage of Ativan, and the intake nurse ordered McKinney to Unit A-the Medical Unit-for observation while receiving the withdrawal protocol. (Brown Dep. at 56-58; Schwartz Dep. at 68-71.)
McKinney remained in Unit A until May 21, 2012, when he completed the benzodiazepine withdrawal protocol from Ativan. (Schwartz Dep. at 71.) The nurse practitioner ordered that he join the general prison population. (Schwartz Dep. at 71.) At 12:49 p.m. on May 22, 2012, McKinney suffered a seizure while taking a shower in the general prison population. (DE 178-11 Lowe Incident Report, hereinafter "Lowe Report, " at 2.) He collapsed to the floor, was visibly shaking, flailed his arms and head, and experienced difficulty breathing. (Lowe Report at 2.) The correctional officers requested a "Code 100." (Lowe Report at 2.) A Code 100 is signaled whenever an inmate is in an emergency physical condition requiring medical care. (DE 179-2 at 2.) Five medical professionals and three officers responded; McKinney was turned on his side, supported throughout the incident, and relocated to Unit A in a wheelchair. (Lowe Report at 2.)
Within hours, McKinney suffered a second seizure. (DE 178-14 Wingate Incident Report, hereinafter "Wingate Report, " at 3.) He was in room A9-a "sub day" room that houses eight or nine beds and adjoins the main open area "program space" of Unit A. (DE 182-4 Dep. of Laura Northrip, hereinafter "Northrip Dep., " at 59.) Officer Joquetta Wingate signaled a Code 100, directed the other inmates to exit A9 to the program space, pushed the bunks away from McKinney, and turned him on his side. (Wingate Report at 3.) Officer Wingate and Officer Eric Legear stabilized McKinney during his second seizure. (Wingate Report at 3.) During his second seizure, he severely bit his tongue and had a lot of bloody, frothy saliva secretions coming out of his mouth. (Northrip Dep. at 68-69; see also Wingate Report at 3; DE 178-15 Legear Incident Report, hereinafter "Legear Report, " at 3.) McKinney spat some blood out of his mouth. Nurse Trevor Newton did not believe that McKinney spat intentionally, but the correctional officers interpreted McKinney's spitting as an intentional act and "attempted to control the subject." ( Compare DE 182-7 Dep. of Trevor Newton, hereinafter "Newton Dep., " at 28-29, with Legear Report at 3.)
The correctional officers issued verbal commands for McKinney to stop spitting, but he continued to spit, became highly erratic, and exhibited defensive resistance. (DE 178-33 Moss Incident Report, hereinafter "Moss Report, " at 3.) More officers entered A9 and attempted to "gain control" of McKinney. (Legear Report at 3.) Officer Randy Jones, the shift commander, arrived and assisted Officer Legear in turning McKinney on his stomach. (DE 178-32 Jones Incident Report, hereinafter "Jones Report, " at 3.) McKinney vomited. (Jones Report at 3.) By this time, Officers Randy Jones, Nicholas Elko, Adam Moss, Eric Legear, Regina Powell, Joquetta Wingate, and Clarissa Arnold "assisted with restraining" McKinney. (DE 178-36 Arnold Incident Report, hereinafter "Arnold Report, " at 2.) Then, Officer Arnold requested a "Signal 7." (Arnold Report at 2.) Toning a Signal 7 means that a correctional officer needs assistance and the on-scene commander must respond to provide assistance and other officers may respond if available and not on break. (DE 194-1 at 20-21.)
Officer Wingate attempted to place a spit hood on McKinney but could not because he was too combative and resistant. (Wingate Report at 3.) Officer Moss then gave verbal commands for McKinney to cooperate. (Wingate Report at 3.) McKinney did not react to Officer Moss's verbal commands; therefore, he performed a mandibular angle pressure point control technique to force McKinney to comply with the correctional officers' directives. (Moss Report at 3.) McKinney did not respond to Officer Moss's actions. (Wingate Report at 3.) Officer Wingate then commenced verbal commands and attempted to perform a mandibular angle pressure point control technique on McKinney. (Wingate Report at 3.) Officer Elko warned McKinney that he would use pepper spray if McKinney's actions did not cease, but McKinney continued his defensive resistance to the correctional officers' actions and commands; therefore, Officer Elko administered a single, two-second burst of pepper spray to McKinney's face. (Jones Report at 3.)
The effects of the pepper spray enabled Officer Wingate to properly perform a mandibular angle pressure point control technique so that other correctional officers could apply handcuffs and shackles. (Jones Report at 3; Wingate Report at 3.) Once McKinney's arms and legs were restrained, Officer Wingate administered a spit hood. (Wingate Report at 3-4.) The correctional officers lifted McKinney off the floor and sat him on a bunk in A9 so that medical staff could decontaminate the pepper spray residue. (Moss Report at 3.) Officer Jones determined that McKinney "continued to be unstable" and decided that McKinney should be removed to the Unit A program area and placed in a restraint chair "where the medical assessment and decontamination could be completed." (Jones Report at 3; see also DE 178-28 Lewis Incident Report at 3.)
The correctional officers decided that McKinney should remain handcuffed and shackled while in the restraint chair. (Wingate Report at 4.) Nine different officers- including as many as six officers simultaneously-lifted McKinney and forced him into the restraint chair. (Videotape: Overhead Video of Unit A (Fayette County Detention Center May 22, 2012) (on file with the Court), hereinafter "Overhead Video, " Time Counter 10:30 to 12:30.) McKinney struggled with the correctional officers for two minutes as they secured him in the restraint chair. (Overhead Video, Time Counter 10:30 to 12:30.)
While other correctional officers secured McKinney in the restraint chair, Officer Powell retrieved a handheld video camera. (DE 178-35 Powell Incident Report, hereinafter "Powell Report, " at 2.) The handheld video recording commenced shortly after McKinney was secured. (Videotape: Handheld Video of Unit A (Fayette County Detention Center May 22, 2012) (on file with the Court), hereinafter "Handheld Video, " Time Counter 0:00.) While secured, he was repeatedly bobbing his head, grunting, and saying "okay." (Handheld Video, Time Counter 0:00 to 1:00.) An officer then clearly explained what happened in cell A9: "Legear was in there trying to help [McKinney], he was down because he had a seizure, and he starts spitting on the nurse." (Handheld Video, Time Counter 1:05 to 1:10.)
Although secured in the restraint chair, McKinney was obviously agitated. He repeatedly yelled out in pain and stated "oh fuck." (Handheld Video, Time Counter 1:45 to 3:30.) He actively convulsed his entire body, repeatedly rocked his head back and forth, and constantly spat into the spit hood. (Handheld Video, Time Counter 1:45 to 4:50.) The spit hood contained multi-colored liquids. Officer Jones and Officer Legear stabilized McKinney's head and reassured McKinney, stating "we know it hurts; calm down." (Handheld Video, Time Counter 3:00.)
While McKinney was secured in the restraint chair, no correctional officer or nurse performed a medical assessment of McKinney's condition or provided medical treatment. ( See Overhead Video, Time Counter 10:30 to 23:15; Handheld Video, Time Counter 0:00 to 8:30.) He received a shot of Ativan to calm his agitation, but this shot was ordered by a nurse practitioner who was not on site and not observing McKinney. (Schwartz Dep. at 80-85, 111.) Despite moving McKinney to a restraint chair in the program space to perform a medical assessment and decontaminate the residue from the two-second burst of pepper spray, neither an assessment nor decontamination occurred. ( See Jones Report at 3.)
After receiving the Ativan shot, McKinney pleaded for assistance. (Handheld Video, Time Counter 3:50 to 4:00.) He stated "please, please, please" and repeated "help." (Handheld Video, Time Counter 3:50 to 4:00, 4:50 to 5:05.) He received no assessment or treatment. A minute after receiving the Ativan shot, McKinney ceased convulsing his entire body and yelling out; however, he continued rocking his head back and forth, spitting into the spit hood, and repeating "okay." (Handheld Video, Time Counter 4:50 to 7:00.) He then became completely lethargic. Approximately a minute later, the correctional officers wheeled McKinney from the program space to A1-an isolated cell in the Medical Unit. (Handheld Video, Time Counter 8:30 to 9:10.) Overall, McKinney remained in the restraint chair for nearly thirteen minutes without receiving a medical assessment or treatment. (Overhead Video, Time Counter 10:30 to 23:15.)
Cell A1 is significantly smaller than cell A9 and only McKinney and Officers Elko, Jones, Legear, Moss, and Womack entered; every other correctional officer stood outside the cell. (Jones Report at 3-4; Legear Report at 4.) Officer Jones explained what the officers intended to do. (Handheld Video, Time Counter 9:10 to 9:50.) McKinney responded, repeating "okay." (Handheld Video, Time Counter 9:50 to 10:50.) Officers Elko, Jones, Legear, Moss, and Womack began the minute-long process of unlocking and removing the various straps from the restraint chair. (Handheld Video, Time Counter 10:00 to 11:00; see also Jones Report at 4.) Officer Legear exited cell A1 because his gloves broke. (Handheld Video, Time Counter 11:15.)
Then, Officers Elko, Jones, Moss and Womack lifted McKinney out of the restraint chair. (Handheld Video, Time Counter 11:35; see also Jones Report at 4.) McKinney was standing in cell A1, but his arms remained handcuffed behind his back and his legs were still shackled. He stood in front of a "boat." A boat is a slang term commonly used by FCDC staff to refer to an upside-down bunk on the floor that often includes additional padding. (DE 185 LFUCG Defs.' Mem. of Supp. of Mot. for Summ. J. at 10 n.11.)
Officers Elko, Jones, Moss, and Womack directed McKinney to kneel in the boat. (Handheld Video, Time Counter 11:50 to 12:00; see also Jones Report at 4.) He did not voluntarily kneel in the boat; therefore, multiple officers began striking McKinney to force him to his knees. (Handheld Video, Time Counter 11:50 to 12:05.) Once he was kneeling, the correctional officers forced McKinney into a prone position. (Handheld Video, Time Counter 12:05.) Two officers held McKinney in a prone position by keeping a hand or knee on his back. (Handheld Video, Time Counter 12:05 to 13:45.)
In the prone position, correctional officers removed McKinney's spit hood and a nurse administered saline solution to McKinney's face to decontaminate the pepper spray residue. (Handheld Video, Time Counter 13:15.) McKinney became listless and unresponsive. The officers told McKinney to turn his head; he did not respond. (Handheld Video, Time Counter 14:05.) Officers asked: "Hey Jeff, hey buddy, you still with me?" and "Jeff, can you hear us?" (Handheld Video, Time Counter 14:50 to 15:00.) McKinney did not respond; he remained face-down and motionless in the boat for an additional minute before Officer Jones yelled, "Jeff! Jeff! Jeff! Let's get him rolled over. Let's get him rolled over. Let's get him rolled over! Jeff! Oh shit!" and another correctional officer yelled out, "We need nurses! We need nurses!" (Handheld Video, Time Counter 16:15 to 16:30.)
An officer requested a "Code 101." (Handheld Video, Time Counter 16:40.) Code 101 is signaled when an inmate has no apparent pulse or respiration. (DE 194-1 at 20.) After the Code 101, Officer Legear reentered the cell; Officers Elko and Womack exited. ( See Jones Report at 4; Legear Report at 4; Moss Report at 3.) The correctional officers turned McKinney on his side and removed his handcuffs. (Handheld Video, Time Counter 16:40 to 17:20.) After removing McKinney's handcuffs, Officers Jones, Legear, and Moss rotated between administering chest compressions, providing rescue breaths with a bag valve mask, and resting to avoid fatigue. (Jones Report at 4; Legear Report at 4; Moss Report at 3.) The correctional officers continued administering CPR until Emergency Medical Services arrived and took over McKinney's care. (Arnold Report at 2; Jones Report at 4.)
McKinney was declared dead at 7:35 p.m., less than an hour and a half after suffering his second seizure in the Medical Unit. ( Compare Legear Report at 3, with DE 178-39 Death Certificate at 2.) The deputy coroner declared that McKinney's cause of death was asphyxia due to aspiration of gastric contents as a consequence of a seizure disorder. (DE 178-39 Death Certificate at 2.)
Summary judgment is appropriate only 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. 56(a). In reviewing a motion for summary judgment, a Court must view the evidence and draw all reasonable inferences in favor of the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
Here, the Defendants assert the following motions for summary judgment: (A) the Defendant-Officers claim that they are entitled to complete summary judgment on the basis of qualified immunity (DE 176 Defs.' Renewed Mot. for Summ. J. at 9; DE 185 LFUCG Defs.' Mem. of Supp. of Mot. for Summ. J. at 18); (B) the Defendant-Officers contend that they are entitled to rely on qualified immunity to preclude liability for Plaintiffs' state tort claims or, alternatively, that Plaintiffs' claim for intentional infliction of emotional distress should be dismissed (DE 76-1 Defs.' Mem. of Supp. of Mot. for Summ. J. at 26-30; DE 185 LFUCG Defs.' Mem. of Supp. of Mot. for Summ. J. at 37-40); (C) the municipal Defendants assert that Plaintiffs conceded their arguments against sovereign immunity and improperly raised an inadequate training claim (DE 201-1 LFUCG Defs.' Reply in Supp. at 23-25); and (D) the Corizon medical Defendants move for partial summary judgment because they claim that Minneci v. Pollard precludes liability against private employees providing medical care or, alternatively, that the medical employees were not deliberately indifferent to McKinney's medical needs. (DE 182-24 Defs.' Br. in Supp. of Mot. for Partial Summ. J. at 5-7.)
A. Qualified Immunity
Qualified immunity shields government officials from civil liability unless their conduct violates clearly established rights. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). To determine whether an official may invoke qualified immunity, a court must decide whether-viewed in the light most favorable to the plaintiff-the alleged facts demonstrate that the official's conduct violated a constitutional right and whether the particular right allegedly ...