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Powell v. Fugate

United States District Court, E.D. Kentucky, Southern Division, London

March 8, 2019

JEFFERY POWELL, Plaintiff,
v.
DAVID FUGATE, et al., Defendants.

          OPINION AND ORDER

          Robert E. Wier, United States District Judge

         Defendants-former jail staff and the jail itself-move for summary judgment on a former inmate's constitutional and state law claims. DE #63. After full initial briefing, a reopened discovery window, and supplemental briefing, the motion stands ripe for decision. For the reasons that follow, the Court grants in part and denies in part. There are several material factual disputes. Some of Powell's claims patently fail as a matter of law, but others must go forward so that a jury may sift through the evidence and determine precisely what Powell experienced at the Kentucky River Regional Jail.

         I. Facts and Procedural Background

         In the early hours of October 13, 2016, Hazard City Police arrested Plaintiff Jeffery Powell on suspicion of driving under the influence (DUI) and transported him to the Kentucky Regional River Jail (KRRJ). Several discordant voices offer accounts of the events that followed-two officers involved in the incidents, the KRRJ's administrator, a fellow inmate, and Powell himself. There is also a short clip of blurry jail footage. The record is disjointed and inconclusive. Powell's memory is only in “bits and pieces”; but, he maintains, “what I do remember, I remember for sure.” DE #60 (Powell Depo.) at 15.[1] Although at times incomplete, Powell's account is not inconsistent with the video.

         At approximately 7:30 a.m. on October 13, police transported Powell (age 19) to the jail after a single-vehicle car accident, and KRRJ staff began the booking and intake process. DE #62 (Smith Depo.) at 9; see DE #63-2 at 4 (DUI Uniform Citation). Tony Smith was the deputy supervisor on duty when Powell arrived. Smith watched as Deputy Carlow Young took inventory of Powell's property. DE #62 at 11. As Young counted Powell's cash, Powell declared that some of his money was missing. DE #60 at 16. Powell testified that he asked about the money in a non-accusatory fashion, but Smith and Young told him to “sit down [and] shut up.” Id. at 15-16. Fellow inmate and trustee Robert Fannin, who was out of his cell on laundry duty and observed this conversation from an adjoining hallway, testified that Powell was nonviolent toward the guards, unresisting, and “pissed off but [not] out of control pissed off. He was just asking.” DE #69 (Fannin Depo.) at 7. Fannin added that Young and Smith were taunting Powell and immediately threatening violence toward him. Id. at 9 (“Carlow made the comment to him that if he wouldn't spend his money on whores, he'd probably have it.”; “Carlow told him that if he didn't shut his [expletive] mouth that he'd knock his brains out.”; “Tony told him if he didn't shut his mouth, he wouldn't have to worry about Carlow whooping him, that he would.”). Powell also accuses Young and Smith of mocking him for having an African-American girlfriend and of using racial slurs. DE #60 at 47.

         Powell testified that Smith began to hit him and Young proceeded to gratuitously mace and tase him[2] when he would not be quiet, after which Powell “kind of blacked out a little bit and [doesn't] really recall[]” what happened next. Id. at 16; id. at 17 (“After I was maced, I didn't know what was going on. I couldn't see, I couldn't breathe, I was freaking out.”); id. at 51 (“Carlo[w] was the one that was macing and tazing me, because Tony was the one mostly hitting me in my face. It was like they [were] just both on me.”); id. at 52 (Powell testifying that he “didn't do anything to be punched” and “didn't do anything to be maced”). Although Powell does not remember the precise circumstances or sequence surrounding this incident, [3] it appears that, in the struggle, Young and a fellow deputy-Jordan Noble, who is not a party to this case-got mace in their eyes as well. DE #62 (Smith Depo.) at 16 (“I didn't really hear nothing until two of my deputies [came] out of there with pepper spray in their eyes.”); DE #61 (Young Depo.) at 32-33 (“[H]e swings around, ‘bout the time I spray it. He hits my hand and he comes literally two inches from my face and I spray myself.”). Fellow inmate Fannin corroborates parts of Powell's version of these events, with a couple of slight variations. He recalls seeing Smith punch Powell (seated at booking) “so hard that [Powell] came off the chair and his head bounced off the floor.” DE #69 (Fannin Depo.) at 23. Fannin further testified that Powell “was hit a couple more times after that, too, ” before the deputies “drug” Powell away and administered mace out of Fannin's sight. Id. Powell stridently denies being “combative” or behaving violently toward jail staff and insists that he was handcuffed during this encounter.[4] See DE #60 (Powell Depo.) at 17, 52-53.

         The next thing Powell remembers is waking up “a little bit later” in a restraint chair and using baby wipes to clean the mace out of his eyes.[5] Id. at 16. Young testified that, in the intervening time, KRRJ staff had placed Powell in a detox cell, but Young became concerned because he “couldn't keep Inmate Powell awake.” DE #61 (Young Depo.) at 35. Young stated that Powell told jail staff that he had taken multiple doses of Xanax, id. at 36-37, and a triage report completed by KRRJ nurse Katherine Ritchie just after the intake incident provides that Powell reported taking three or four sleeping pills.[6] DE #70-6; see also DE #70-7 (October 13, 2016, 9:00 a.m. Narrative Progress Note). As to the presence of physical injuries, the triage report notes only a small bruise and “small red nodule” near Powell's right eye. DE #70-6. To observe Powell and to keep him awake, Young (with Smith's permission) removed Powell from the detox cell and placed him in a restraint chair near the booking area, leaving him unrestrained. DE #61 at 35-36. Per the KRRJ “Detox Observation Log” that Young and Noble completed, staff watched Powell in the chair and intermittently awakened him from about 10:30 a.m. until 1:30 p.m. DE #63-3 at 6.[7]

         Young, Smith, and David Fugate-the KRRJ administrator-testified that Powell then began making suicidal remarks. DE #61 (Young Depo.) at 43; DE #62 (Smith Depo.) at 23-24; DE #68 (Fugate Depo.) at 19. This may have been but one stray remark. See, e.g., DE #61 at 43 (“Inmate Powell said he was gonna kill himself.”). Powell does not deny that he made such statements but testified that he does not remember making any. DE #60 (Powell Depo.) at 17. Per “protocol, ” the jailers decided to restrain Powell pending a suicide assessment. See DE #63-2 (Fugate Aff.) at 2. The brief exchange that followed is memorialized in grainy footage from a nearby KRRJ camera.[8] See DE #70-13.[9] The video opens with a front-facing view of Powell sitting still, unrestrained, in a chair located in a hallway facing the booking area.[10] First Smith and then Young enter the scene. Id. at 0:00:23-0:00:27. Smith attempts to strap Powell's left arm to the chair, while Young attempts to restrain Powell's right arm. Id. at 0:00:37-0:00:50. Powell appears initially cooperative in this process, but he soon begins to struggle and attempt to free himself from the restraints. Id. at 0:00:52-0:00:55. He eventually wrestles his right arm out of the strap (described as faulty) on the chair. Id. at 0:00:56. As Young and Smith again try to secure Powell's left arm, the guards obstruct the view of Powell. Id. at 0:01:000:01:02. At this point, Smith and Young are in front of Powell, so it is impossible to see precisely what happens next. Id. at 0:01:02- 0:01:03. The jailers claimed that Powell punched Smith. DE #62 (Smith Depo.) at 27; DE #61 (Young Depo.) at 45. Fugate confirmed that he saw Powell punch Smith.[11] DE #68 (Fugate Depo.) at 27.

         Next, Smith punches the surrounded and still-seated Powell twice in the face and places him in a 4-5 second chokehold.[12] DE #70-13 at 0:01:03-0:01:09. Young and a third deputy then appear to pull Smith away. Id. at 0:01:09-0:01:10. Smith retreats from Powell, and Fugate enters and emphatically points towards Smith and then Powell before exiting the camera's view. Id. at 0:01:10-0:01:23. Finally, Young and the third deputy secure Powell's restraints before leaving Powell, restrained in the chair, alone in the hallway. Id. at 0:01:25-0:02:59. The remaining four minutes of footage show Powell sitting alone, restrained and subdued. The footage is largely consistent with Powell's testimony: “I recall, you know, [Smith] hitting me in my face, you know, repeatedly while I was restrained.” DE #60 (Powell Depo.) at 39; id. at 51 (“Tony was the one mostly hitting me in my face.”). Fannin observed the fallout from the incident, testifying: “Later on [Powell] was sitting strapped down in the chair ‘beat to death.' Now whether these guys did it or whether he beat himself to death, you know, I can't tell you. But I can tell you he was beat to death strapped to a chair later on.” DE #69 (Fannin Depo.) at 47. Fannin continued: “He had a bruise around his eye . . . [H]e had a busted lip. He had what looked to be a few scrapes on his face, a cut and he complained about his ribs. That's what I saw and heard.” Id. Powell did not see Young or Smith again after these events, as October 13 was their last day at the KRRJ.[13]

         The KRRJ charged Powell with third-degree felony assault on a corrections officer based on Powell's alleged punch. See DE #63-2 at 19 (Assault 3rd Uniform Citation). The citation notes (seemingly written by Smith) state: “[T]his inmate informed myself that he was going to kill himself. Myself and Deputy Young were placing inmate Powell's hands in restraint straps in restraint chair. Inmate Powell jerked his right hand out of strap and punched this deputy in the face.” Id. At a Perry District Court preliminary hearing on the charge, the presiding judge found probable cause to send the matter to the grand jury based on the testimony of Smith and Fugate and the video footage of the incident.[14] See DE #70-14 (video of preliminary hearing).[15] The case, however, never reached the grand jury. See DE #62 (Smith Depo.) at 27 (“And you've not presented the assault third to the grand jury yet[?] . . . No, I haven't . . . Is there a reason? . . . I really didn't want to send a 19-year-old boy to prison.”). Powell denies ever hitting Smith or assaulting anyone at the KRRJ. DE #60 (Powell Depo.) at 52, 55. With a new felony charge, the KRRJ held Powell on a heightened bond, and Powell ultimately remained in KRRJ custody for approximately two weeks. Id. at 54-55.

         Powell does not recall much of what happened after the filmed incident, only that he “woke up a couple of days later in the restraint chair[.]” DE #60 (Powell Depo.) at 16-17; id. at 18 (“[A]fter I was getting beaten in the restraint chair, I was getting hit so many times that I couldn't recall nothing honestly.”). Powell conceded, however, that it may have simply “felt like two [] days.” Id. at 50. The Kentucky Jail Mental Health Crisis network performed a risk assessment on Powell on the evening of October 13, noting that he was “sitting in the restraint chair and ha[d] calmed down, ” but was still under the influence of Xanax and marijuana. DE #70-8 at 1. Records from Kentucky River Community Care (KRCC) indicate that the facility treated Powell between 8:00 p.m. and 9:30 p.m. on October 13, 2016. DE #63-5 at 2. The KRCC provider reported that Powell had “been withdrawing from Xanax” and “ha[d] been expressing suicidal ideations.” Id. As a result, the provider recommended that Powell “stay in the restraint chair with a release every two hours.” Id. at 3. Medical records show Powell faring better the following day. A second Episode Report from the Kentucky Jail Mental Health Crisis Network on October 14 found Powell “sober and in control, ” and no longer expressing suicidal ideations, although it noted that Powell might not yet be aware of the new felony assault charge against him. DE #70-9 at 2. When the KRCC saw Powell later on October 14, the provider noted that Powell appeared significantly better but included a recommendation that the KRRJ continue to “observe him for any side-effects or withdrawal symptoms from drug use.” Id. at 5-6.

         Other records show that Powell visited the emergency room at Hazard ARH Regional Medical Center (ARH) on October 15.[16] DE #63-6 at 21. There, Powell tested positive for a benzodiazepine (a drug category encompassing Xanax). DE #63-3 at 15. ARH records further indicate that Powell had fainted at the jail at some point, at least in part prompting this visit. DE #63-6 at 7 (stating “syncope and collapse” as reason for visit). A second KRRJ Narrative Progress Note from later in the afternoon on October 15, written by KRRJ nurse Kelly Cockrell, also states that Powell fainted: “[Inmate] blacked out [in a cell], hit his head on the door and bit his tongue.” DE #70-12. Cockrell adds that Powell believed he had a concussion from the October 13 car accident and reported experiencing withdrawal symptoms; Cockrell's notes ostensibly reflect Powell's self-reported description of his condition at that time. Contrary to Powell's and Fannin's descriptions of Powell's injuries, ARH records report only some slight swelling of Powell's head.[17]See DE #63-6 at 25. For his part, Powell has little memory of his medical treatment. He merely recalls seeing a jail nurse “once or twice at least[, ]” unsuccessfully attempting to discuss the alleged beatings with an individual from the KRCC, and later visiting the emergency room at ARH. DE #60 (Powell Depo.) at 25-26, 28-29.

         Powell describes only one other incident during his stay at the KRRJ. Sometime after the altercation with Smith (although, Powell admits his memory of the timeline is hazy), a large guard (who ironically went by “Tiny”) brought inmates into Powell's cell and urine tested them near where Powell was trying to sleep. Id. at 47 (“[L]ater on . . . in jail, a guard they call Tiny, he's like-he's big . . . [was] bringing inmates into my cell and drug testing them right beside me, having them pee right there where I laid my head beside my bed.”). When Powell protested, Tiny “pulled [him] out of [his] cell and was like, ‘You don't want no problems with me, Boy. I will give you a real reason to go to the hospital[.]'” Id. at 48. Powell notes that he was “on psychiatric watch” at the time of this incident. Id. at 47.

         Based on his view of these events, Powell initiated suit against Smith, Young, Fugate, and the KRRJ in the Perry Circuit Court. Powell alleged that Fugate and the KRRJ violated his constitutional rights under 42 U.S.C. § 1983, lodged state law claims of negligent hiring, supervision, and retention against Fugate and the Authority as a result of their employment of Smith and Young, asserted an abuse of process claim against Fugate and the Authority based on the felony assault charge, and brought claims of intentional infliction of emotional distress (IIED) against all Defendants. Defendants removed the case to this Court due to Powell's constitutional claims. DE #1. After Defendants moved for summary judgment (DE #63), Powell responded (DE #70), and, on that same day, also moved to amend the Complaint to assert several additional claims. Defendants subsequently replied in support of their summary judgment motion. DE #82. After full briefing on the amendment issue, the Court permitted inclusion of Smith and Young in the § 1983 excessive force claims and Smith in the abuse of process claim; the Complaint already factually implicated them on those counts, and justice favored this limited amendment under the circumstances. DE #92. The Court permitted an additional window for discovery on the amendments and supplemental briefing on Defendants' pending summary judgment motion. See Id. Defendants supplemented DE #63 (DE #94), Powell responded (DE #95), and Defendants replied (DE #96).

         II. Summary Judgment Standard

         Summary judgment is proper where “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The Court must construe the evidence and draw all reasonable inferences from the underlying facts in favor of the nonmovant. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 106 S.Ct. 1348, 1356 (1986); Lindsay v. Yates, 578 F.3d 407, 414 (6th Cir. 2009). Courts may not “weigh the evidence and determine the truth of the matter” at the summary judgment stage. Anderson v. Liberty Lobby, Inc., 106 S.Ct. 2505, 2511 (1986). “The relevant inquiry is ‘whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.'” Little Caesar Enters., Inc. v. OPPCO, LLC, 219 F.3d 547, 551 (6th Cir. 2000) (quoting Anderson, 106 S.Ct. at 2512).

         The burden of establishing the absence of a genuine dispute of material fact initially rests with the moving party. Celotex Corp. v. Catrett, 106 S.Ct. 2548, 2553 (1986) (requiring the moving party to set forth “the basis for its motion, and identify[] those portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate an absence of a genuine issue of material fact”); Lindsay, 578 F.3d at 414 (“The party moving for summary judgment bears the initial burden of showing that there is no material issue in dispute.”). If the moving party meets its burden, the burden then shifts to the nonmoving party to produce “specific facts” showing a “genuine issue” for trial. Celotex Corp., 106. S.Ct. at 2253; Bass v. Robinson, 167 F.3d 1041, 1044 (6th Cir. 1999). However, “Rule 56(c) mandates the entry of summary judgment . . . against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp., 106 S.Ct. at 2552; see also Id. at 2557 (Brennan, J., dissenting) (“If the burden of persuasion at trial would be on the non-moving party, the party moving for summary judgment may satisfy Rule 56's burden of production in either of two ways. First, the moving party may submit affirmative evidence that negates an essential element of the nonmoving party's claim. Second, the moving party may demonstrate to the Court that the nonmoving party's evidence is insufficient to establish an essential element of the nonmoving party's claim.” (emphasis in original)).

         A fact is “material” if the underlying substantive law identifies the fact as critical. Anderson, 106 S.Ct. at 2510. Thus, “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Id. A “genuine” issue exists if “there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.” Id. at 2511; Matsushita Elec. Indus. Co., 106 S.Ct. at 1356 (“Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no ‘genuine issue for trial.'”) (citation omitted). Such evidence must be suitable for admission into evidence at trial. Salt Lick Bancorp v. FDIC, 187 Fed.Appx. 428, 444-45 (6th Cir. 2006).

         III. § 1983 Claims

         A. Qualified Immunity

         Qualified immunity shields public officials “from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Pearson v. Callahan, 129 S.Ct. 808, 815 (2009) (quoting Harlow v. Fitzgerald, 102 S.Ct. 2727, 2738 (1982)). This doctrine “balances two important interests-the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.” Id. “Qualified immunity provides police officers ‘breathing room to make reasonable but mistaken judgments and protects all but the plainly incompetent or those who knowingly violate the law.'” Mullins v. Cyranek, 805 F.3d 760, 765 (6th Cir. 2015) (quoting Stanton v. Sims, 134 S.Ct. 3, 5 (2013) (per curiam) (citations and quotation marks omitted)). Importantly, qualified immunity is “an immunity from suit rather than a mere defense to liability[, ]” and reviewing courts should resolve the issue as early in a case as practicable. Mitchell v. Forysth, 105 S.Ct. 2806, 2815 (1985). The qualified immunity inquiry is twofold, requiring assessment of “(1) whether the facts alleged by the plaintiff make out the violation of a constitutional right and (2) whether the right at issue was ‘clearly established' at the time of the alleged violation.” Gavitt v. Born, 835 F.3d at 640. The Court may address either prong first, and, ultimately, “if the plaintiff cannot make both showings, the officer is entitled to qualified immunity.” Id. (quoting Brown v. Lewis, 779 F.3d 401, 412 (6th Cir. 2015)).

         The plaintiff bears the ultimate burden of proof in establishing that a defendant is not entitled to qualified immunity. See Gardenhire v. Schubert, 205 F.3d 303, 311 (6th Cir. 2000) (citing Wegener v. Covington, 933 F.2d 390, 392 (6th Cir. 1991)). A defendant asserting immunity must initially demonstrate “facts to suggest that he acted within the scope of his discretionary authority during the incident in question.” Id. The burden then shifts to the plaintiff to show “that the defendant's conduct violated a right so clearly established that a reasonable official in his position would have clearly understood that he or she was under an affirmative duty to refrain from such conduct.”[18] Estate of Hill v. Miracle, 853 F.3d 306, 312 (6th Cir. 2017). Where “undisputed facts show that the defendant's conduct did indeed violate clearly established rights[, ]” or “if there is a factual dispute . . . involving an issue on which the question of immunity turns, such that it cannot be determined before trial whether the defendant did acts that violate clearly established rights[, ]” a court must deny summary judgment. Gardenhire, 205 F.3d at 311 (quoting Poe v. Haydon, 853 F.2d 418, 425-26 (6th Cir. 1988) (citations omitted)).

         B. Excessive Force Claims Against Smith and Young

         Powell's excessive force claims against Smith and Young address two alleged incidents: (1) when Smith hit Powell, and Young tased and maced him, during booking; and (2) when Smith later punched Powell while Powell sat in the restraint chair. The Fourth Amendment provides the proper analytical lens for this context because the incidents occurred after Powell's initial booking at the KRRJ, but prior to any probable-cause hearing. See Hanson v. Madison Cty. Det. Ctr., 736 Fed.Appx. 521, 528 (6th Cir. 2018) (citing McDowell v. Rogers, 863 F.2d 1302, 1306 (6th Cir. 1988); Aldini v. Johnson, 609 F.3d 858, 865 (6th Cir. 2010)) (“The Sixth Circuit has long adhered to the view that the Fourth Amendment prohibits excessive force under certain pre-trial circumstances . . . Fourth Amendment protections, including those against excessive force, continue during booking and at all times prior to a probable-cause hearing.” (internal quotation marks and citations omitted)). The Fourth Amendment inquiry evaluates the “objective reasonableness” of the force used under the circumstances. See Hanson, 736 Fed.Appx. at 528.

         This analysis is heavily fact-dependent, and courts should approach it “from the perspective of a reasonable officer on the scene, including what the officer knew at the time, not with the 20/20 vision of hindsight.” Kingsley v. Hendrickson, 135 S.Ct. 2466, 2473 (2015). “The officer's subjective intentions are irrelevant” to this calculus. Phelps v. Coy, 286 F.3d 295, 299 (6th Cir. 2002). The Court must “weigh the government's interest justifying the use of force against the individual's interest in avoiding that force, ” in light of “the measure of deference due an officer's on-the-spot decisions[.]” Id. at 301. The Court must further heed the “legitimate interests that stem from [the government's] need to manage the facility in which the individual is detained” and the “policies and practices . . . needed to preserve internal order and discipline and to maintain institutional security.” Kingsley, 135 S.Ct. at 2473 (quoting Bell v. Wolfish, 99 S.Ct. 1861, 1878 (1979)) (alteration in original). The Supreme Court has articulated a non-exhaustive list of factors to consider in evaluating the reasonableness of force used on a pretrial detainee: (1) “the relationship between the need for the use of force and the amount of force used”; (2) “the extent of the plaintiff's ...


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