United States District Court, W.D. Kentucky, Louisville Division
MICHELLE MCMILLEN, Individually and as Administratrix of the ESTATE OF GYNNYA MCMILLEN Plaintiff
REGINALD WINDHAM, ET AL. Defendants
MEMORANDUM OPINION AND ORDER
Rebecca Grady Jennings, District Judge United States District
Michelle McMillen, individually and as administratrix of
Gynnya McMillen's estate, sues Defendants Youth Worker
Supervisor, Reginald Windham (“Supervisor
Windham”); Youth Worker Supervisor, Victor Holt
(“Supervisor Holt”); Commissioner, Bob Hayter
(“Commissioner Hayter”); Deputy Commissioner
Program Director, Mark Cook (“Deputy Commissioner
Cook”); Facility Superintendent, Michelle Grady
(“Superintendent Grady”); Assistant
Superintendent, Michael Price (“Assistant
Superintendent Price”); Youth Services Program
Supervisor, Brent Kimbler (“Program Supervisor
Kimbler”); Counselor, Vicki Mullins (“Counselor
Mullins”); Youth Worker, Lashae Newby
(“Newby”); Youth Worker, Chris Johnson
(“Chris Johnson”); Youth Worker, Kevin Johnson
(“Kevin Johnson”); Youth Worker, Lisa Rivers
(“Rivers”); and Youth Worker, Loretta Gaudern
(“Gaudern”) for alleged violations of the United
States Constitution and Kentucky law. [DE 1, Compl.]. All
Defendants except Supervisor Windham, Supervisor Holt, and
Chris Johnson now move to dismiss under Fed. R. of Civ. Proc.
12(b)(6) or for summary judgment under Rule 56. [DE 59; DE
61; DE 63; DE 65; DE 114; DE 123; DE 128]. Defendants also
move to exclude or limit expert testimony by David Roush [DE
115; DE 125; DE 131] and for leave to file videos under seal
[DE 126; DE 129]. Briefing is complete, and the motions are
reasons below, the Court GRANTS IN PART and
DENIES IN PART AS MOOT the Motion to Dismiss
on Behalf of Commissioner Hayter, Deputy Commissioner Cook,
and Superintendent Grady [DE 59], the Motion to Dismiss
and/or for Summary Judgment on Behalf of Program Supervisor
Kimbler [DE 65], the Motion for Summary Judgment on Behalf of
Newby, Counselor Mullins, and Program Supervisor Kimbler [DE
123], and the Motion for Summary Judgment by Defendants
Commissioner Hayter, Deputy Commissioner Cook, and
Superintendent Grady [DE 128]; DENIES AS
MOOT the Motion to Dismiss on Behalf of Defendants
Newby and Counselor Mullins [DE 63] and the Motion for
Partial Summary Judgment or to Hold Action in Abeyance [DE
114]; GRANTS IN PART AND DENIES IN PART the
Motion for Summary Judgment by Gaudern, Kevin Johnson,
Assistant Superintendent Price, and Rivers [DE 61] and the
Motions to Exclude or Limit Expert Testimony by David Roush,
Ph.D. [DE 115; DE 125; DE 131]; and GRANTS
the Motions for Leave to File Videos Under Seal [DE 126; DE
Sunday, January 10, 2016, the Shelbyville Police Department
responded to a domestic dispute between sixteen-year-old
Gynnya McMillen (“Gynnya”) and her mother,
Michelle McMillen (“McMillen”), at their home in
Shelbyville, Kentucky. [DE 1 at ¶ 27]. After the police
arrested Gynnya without a warrant, a Shelby County District
Court Judge ordered Gynnya's detention at the Lincoln
Village Regional Juvenile Detention Center (“Lincoln
Village”), a Kentucky Department of Juvenile Justice
(“KYDJJ”) facility, until her scheduled court
date on Monday morning. [Id. at ¶ 28].
Gynnya arrived at Lincoln Village, she went through an intake
process that included a search for contraband. [Id.
at ¶¶ 88-89]. Gynnya refused to remove her hoodie
jacket, telling Chris Johnson, Kevin Johnson, Gaudern, and
Rivers to “get out of [her] face.” [DE 61-5 at
596]. Supervisor Holt received telephone authorization from
Assistant Superintendent Price to restrain Gynnya. [DE 79 at
800-01]. After hanging up the phone, Supervisor Holt
“yell[ed] and point[ed] at Gynnya and then repeatedly
slap[ped] the intake desk.” [Id.]. Chris
Johnson restrained Gynnya's arms, after which Gaudern
frisked Gynnya. [Id.; DE 61-1 at 580]. Gynnya
“became combative and began kicking her legs, ”
striking Chris Johnson in the midsection. [Id.].
Chris Johnson and Kevin Johnson applied more pressure and
forced Gynnya to the ground. [DE 79-1 at 811]. Gynnya told
them she was in pain [DE 79-2 at 812], and an internal
investigation of the incident later revealed that Gynnya
suffered injuries to her thigh and leg area [DE 79-4 at 817].
When Gynnya said she was in pain, Kevin Johnson replied that
“none of this would have happened if [you] had complied
with the search.” [DE 79-2 at 812]. Defendants
completed the search when Gynnya stopped resisting. [DE 61-1
then placed Gynnya in a cell (“Room 423”). [DE 1
at ¶ 31]. Gaudern removed the mattress pad from
Gynnya's bed, leaving Gynnya alone with a metal bed frame
and without a mattress pad or blanket. [DE 1 at ¶ 31; DE
1-11, Ex. J; DE 79 at 801].
of Lincoln Village's rules and regulations, Lincoln
Village employees needed to conduct bed checks at set
intervals, including at least every fifteen minutes during
sleep hours. [DE 1 at ¶ 22; DE 1-4 at 53]. During the
bed checks, employees were to verify that the resident was
safe and secure in the room, and then document the check on
the Unit Room Observation Sheet. [Id.]. In 2013,
Assistant Superintendent Price held a meeting on the
importance of bed checks, including the need to make sure the
youth was breathing. [Id. at ¶ 82; DE 1-27].
Assistant Superintendent Price stated “that he would
not stand behind anyone who failed to do their jobs”
and that staff conducting the bed checks “should stop
at the door of each resident and make sure the youth is
breathing.” [DE 1-27].
placed Gynnya in Room 423 at 6:22 a.m. on January 10, 2016
and removed her later that day at 3:44 p.m. [DE 1 at ¶
28]. During that time, the Lincoln Village staff failed to
perform and falsified records for twenty-three required bed
checks of Room 423. [Id. at ¶ 37]. From the
time Gynnya returned to Room 423 at 5:19 p.m. until 11:39
p.m., the Lincoln Village staff failed to perform and
falsified records for another twelve required bed checks of
Room 423. [Id. at ¶ 38]. And from 10:35 p.m. to
11:39 p.m., Supervisor Windham personally failed to perform
four required bed checks. [Id. at ¶ 39].
11:39 p.m., Supervisor Windham heard coughing coming from
Room 423. [Id. at ¶ 40]. He went “to
check on [Gynnya] to make sure she had not thrown up and was
choking or something like that.” [Id.] In
conducting the check, Supervisor Windham looked through the
narrow slit in the door for about 18 seconds, during which he
saw Gynnya turn onto her right side and her left leg hanging
off the bed at the knee. [Id. at ¶ 42-43].
Supervisor Windham then returned to his desk. [Id.
at ¶ 43]. He falsified twenty-four more bed checks
between the time he checked on Gynnya at 11:39 p.m. and the
time Supervisor Holt and Youth Worker Chris Johnson
discovered Gynnya the next morning. [Id. at ¶
about 9:55 a.m. the next morning, Supervisor Holt and Youth
Worker Chris Johnson entered Room 423 and tried
unsuccessfully for several minutes to awaken Gynnya for
transport to Shelby County District Court. [Id. at
¶¶ 70-71]. Nurse Jennifer Swiney then arrived to
assess Gynnya, who was still unresponsive. [Id. at
¶ 72]. Swiney and Nurse, Paula Maupin, checked
Gynnya's pulse. Swiney called 911 dispatch and said
Gynnya was cold, stiff, and without respirations or vital
signs. [Id. at ¶¶ 72-73]. Maupin, with
Swiney's assistance, performed CPR on Gynnya.
[Id. at ¶ 74]. Emergency personnel arrived
about ten minutes later and assessed her condition.
[Id. at ¶ 75]. She was dead. Hardin County
Coroner William H. Lee, Jr. arrived and, with emergency
personnel, placed Gynnya in a body bag and removed her from
the cell. [Id. at ¶ 76].
to McMillen's medical expert, Dr. Schwartz, Gynnya died
between 11:39 p.m. and 11:44 p.m. from long QT syndrome type
2 (“LQT2”) based on a disease-causing mutation.
[DE 1 at ¶ 43; DE 1-18 at 114]. Dr. Schwartz testified
that before Gynnya's death, there would have been nothing
to indicate that cardiac arrest or death was likely to occur.
[DE 146-1 at 2464]. LQT2 patients tend to die at rest or
nighttime due to a cardiac rhythm called ventricular
fibrillation, which produces a significant drop in blood
pressure. [DE 1-18 at 114]. As blood pressure decreases and
the oxygen perfusion of the brain decreases progressively,
gasping occurs, which is often interpreted as coughing when
heard from a distance. [Id.]. Dr. Schwartz suggested
that Gynnya may have survived had she received “prompt
resuscitative intervention” between the time she began
exhibiting symptoms around 11:39 p.m. and when she died
within the next five minutes. [Id. at 114-15].
Justice Cabinet's Internal Investigations Branch
investigated the circumstances surrounding Gynnya's
death. In a Memorandum of Concern, investigator Ed Jewell
concluded that the “office not only substantiated that
six employees at [Lincoln Village] did not provide
appropriate supervision, this office also identified other
issues that in this investigator's opinion contributed to
what can only be described as a breakdown in staff
supervision of” Gynnya. [DE 1-8 at 77]. Among other
things, Jewell concluded that there was a systematic
falsification of room observation forms, including that the
“staff missed and falsified sixty-five bed
checks” around the time of Gynnya's death.
[Id. at 79; DE 1 at ¶¶ 36-39]. Jewell also
concluded that “[t]his systematic breakdown led to
staff possibly not noticing [Gynnya] in a medically stressed
state” and, at the very least, the “staff would
have noticed [Gynnya] was unresponsive earlier than when she
was discovered.” [Id.].
individually and as administratrix of Gynnya's estate,
sued Supervisor Windham, Supervisor Holt, Commissioner
Hayter, Deputy Commissioner Cook, Superintendent Grady,
Assistant Superintendent Price, Program Supervisor Kimbler,
Counselor Mullins, Newby, Chris Johnson, Kevin Johnson,
Rivers, Gaudern, and the Commonwealth of Kentucky for alleged
violations of the Fourth and Fourteenth Amendments under 42
U.S.C. § 1983 and various Kentucky laws. [DE 1]. By
Agreed Order the Court dismissed the claims against the
Commonwealth of Kentucky and Defendants in their official
capacities. [DE 22].
Motions to Dismiss
Hayter, Deputy Commissioner Cook, Superintendent Grady,
Counselor Mullins, Newby, and Program Supervisor Kimbler have
moved to dismiss under Rule 12(b)(6). [DE 59; DE 63; DE 65].
McMillen agrees to dismiss voluntarily several claims,
including her excessive force and medical-needs claims
(Counts I and II) against Commissioner Hayter, Deputy
Commissioner Cook, and Superintendent Grady. [DE 78 at 725].
She also agrees to dismiss voluntarily her negligence (Count
IV) and negligence-per se (Count V) claims against
Commissioner Hayter and Deputy Commissioner Cook.
[Id. at 728]. Commissioner Hayter, Deputy
Commissioner Cook, and Superintendent Grady had moved to
dismiss those claims. [DE 59 at 558-63]. Defendants'
motion to dismiss is therefore granted as to Counts I and II,
and Counts IV and V are dismissed for Commissioner Hayter and
Deputy Commissioner Cook.
also agrees to dismiss voluntarily her excessive force claim
against Program Supervisor Kimbler. [DE 80 at 833]. Program
Supervisor Kimbler had moved to dismiss that claim as well.
[DE 65 at 627-628]. Program Supervisor Kimbler's motion
to dismiss Count I is therefore granted.
Hayter, Deputy Commissioner Cook, Superintendent Grady,
Counselor Mullins, Newby, and Program Supervisor Kimbler also
argue in their motions to dismiss that they are entitled to
qualified immunity. [DE 59 at 557-62; DE 63 at 612-18; DE 65
at 624-35]. But “it is generally inappropriate for a
district court to grant a 12(b)(6) motion to dismiss on the
basis of qualified immunity. Although an officer's
‘entitle[ment] to qualified immunity is a threshold
question to be resolved at the earliest possible point,'
. . . that point is usually summary judgment and not
dismissal under Rule 12.” Wesley v. Campbell,
779 F.3d 421, 433-34 (6th Cir. 2015) (internal quotation
marks and citations omitted) (alteration in original).
Because Defendants assert the same qualified immunity
defenses in their motions for summary judgment, the Court
will consider qualified immunity as part of its summary
Motions for Summary Judgment
judgment is required when “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
moving party bears the burden of specifying the basis for its
motion and showing the lack of a genuine issue of material
fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986). Once the moving party satisfies this burden, the
nonmoving party must produce specific facts showing a
material issue of fact for trial. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 247-48 (1986). “Factual
differences are not considered material unless the
differences are such that a reasonable jury could find for
the party contesting the summary judgment motion.”
Bell v. City of E. Cleveland, 125 F.3d 855 (6th Cir.
1997) (citing Liberty Lobby, 477 U.S. at 252).
district court considering a motion for summary judgment may
not weigh evidence or make credibility determinations.
Daugherty v. Sajar Plastics, Inc., 544 F.3d 696, 702
(6th Cir. 2008). The Court must view the evidence and draw
all reasonable inferences in a light most favorable to the
nonmoving party. Williams v. Int'l Paper Co.,
227 F.3d 706, 710 (6th Cir. 2000). But the nonmoving party
must do more than show some “metaphysical doubt as to
the material facts.” Matsushita Elec. Indus. Co.,
Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
Instead, the nonmoving party must present specific facts
showing that a genuine factual issue exists by “citing
to particular parts of materials in the record” or by
“showing that the materials cited do not establish the
absence . . . of a genuine dispute[.]” Shreve v.
Franklin Cty., Ohio, 743 F.3d 126, 136 (6th Cir. 2014).
“The mere existence of a scintilla of evidence in
support of the [nonmoving party's] position will be
insufficient; there must be evidence on which the jury could
reasonably find for the [nonmoving party].” Liberty
Lobby, 477 U.S. at 252.
Excessive Force (Count I)
Gaudern, Kevin Johnson, and Rivers, and Assistant
asserts that Gaudern, Kevin Johnson, Assistant Superintendent
Price, and Rivers (collectively, the “Intake
Staff”) violated the Fourth Amendment by depriving
Gynnya of her right to be free from unreasonable search,
seizure, and punishment as a pretrial detainee. [DE 1 at
¶¶ 84-95]. The Intake Staff assert that qualified
immunity protects them from McMillen's § 1983
claims. [DE 61].
immunity protects government officials performing
discretionary functions unless their conduct violates a
clearly established statutory or constitutional right of
which a reasonable person in the official's position
would have known.” Silberstein v. City of
Dayton, 440 F.3d 306, 311 (6th Cir. 2006). It
“provides ample protection to all but the plainly
incompetent or those who knowingly violate the law.”
Malley v. Briggs, 475 U.S. 335, 341 (1986). When
advanced by a defendant, qualified immunity is a threshold
question of law appropriately determined on a motion for
summary judgment. Harlow v. Fitzgerald, 457 U.S. 800
(1983). “Because qualified immunity is ‘an
immunity from suit rather than a mere defense to liability .
. . it is effectively lost if a case is erroneously permitted
to go to trial.'” Pearson v. Callahan, 555
U.S. 223, 231 (2009) (quoting Mitchell v. Forsyth,
472 U.S. 511, 526 (1985)).
plaintiff bears the ultimate burden of proof in establishing
that a defendant has no right 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)). That said, in moving for summary
judgment based on qualified immunity, a defendant must first
show “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.” Estate of Hill v. Miracle, 853 F.3d
306, 312 (6th Cir. 2017). If “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)
Supreme Court requires a two-pronged approach when resolving
questions of qualified immunity, although courts may decide
the order in which to address these prongs “in light of
the circumstances in the particular case at hand.”
Pearson, 555 U.S. at 236. First, the Court must
decide whether a plaintiff has presented facts sufficient to
find a violation of a constitutional right. Id. at
232. Second, the Court must decide whether the right at issue
was “clearly established” at the time of the
alleged misconduct. Id. Thus, qualified immunity
applies unless the official's conduct violates a clearly
established constitutional right. Id. (citing
Anderson v. Creighton, 483 U.S. 635, 640 (1987)).
parties dispute both prongs. The Intake Staff argue that no
violation occurred because they had a right to conduct an
intake search and the force used in effectuating that search
was objectively reasonable. [DE 61-1 at 581-84]. They also
argue that there is no law clearly establishing that they
acted improperly. [Id.]. McMillen asserts that the
Intake Staff behaved unreasonably in Gynnya's intake and
that clearly established law put the Intake Staff on notice
that they were violating Gynnya's Fourth Amendment
rights. [DE 79 at 805-08].
addressing an excessive force claim brought under §
1983, analysis begins by identifying the specific
constitutional right allegedly infringed by the challenged
application of force.” Graham v. Connor, 490
U.S. 386, 394 (1989). Generally, “[t]he Fourth
Amendment's prohibition against unreasonable seizures
bars excessive force against free citizens . . . while the
Eighth Amendment's ban on cruel and unusual punishment
bars excessive force against convicted persons, ” and
the Fourteenth Amendment bars excessive force when neither
category applies. Burgess v. Fischer, 735 F.3d 462,
472 (6th Cir. 2013) (citations omitted).
authorities arrest an individual without a warrant, the
Fourth Amendment's reasonableness standard applies until
a probable-cause hearing occurs, after which the Fourteenth
“shocks-the-conscience” standard applies.
Aldini v. Johnson, 609 F.3d 858, 866 (6th Cir. 2010)
(citing Bell v. Wolfish, 441 U.S. 520, 536 (1979)).
This is because “the probable-cause hearing is a
judicial proceeding that affects the ‘legal status'
of the arrestee, constitutionally authorizing his detention
throughout the proceedings against him, just as a guilty
verdict affects his ‘legal status' by authorizing
his detention for the duration of his sentence.”
Id. “Additionally, establishing the line
between Fourth and Fourteenth Amendment protection at the
probable-cause hearing creates an incentive to hold the
hearing as soon as possible, which is certainly beneficial to
the judicial process.” Id. at 866-67 (citing
Cty. of Riverside v. McLaughlin, 500 U.S. 44, 58
identifies the Fourth Amendment's prohibition against
unreasonable search and seizure as the allegedly infringed
right. [DE 1 at ¶ 86]. Law enforcement arrested Gynnya
without a warrant and ordered her detained until her court
date. [Id. at ¶¶ 27-28]. Because no
probable-cause hearing occurred, the Court analyzes these
facts under the Fourth Amendment's reasonableness
test of reasonableness under the Fourth Amendment is not
capable of precise definition or mechanical
application.” Bell, 441 U.S. at 559 (citations
omitted). In the context of a detainee search, courts must
“examine the scope, manner, and location of the
search-as well as the justification for initiating it-in
order to assess the degree to which it invaded the
[detainee's] right to privacy.” Stoudemire v.
Michigan Dep't of Corr., 705 F.3d 560, 574 (6th Cir.
2013) (citing Florence v. Bd. of Chosen Freeholders of
Cty. of Burlington, 566 U.S. 318, 322 (2012)). It must
“next evaluate the need for the search, giving due
deference to the correctional officer's exercise of her
discretionary functions. Finally, [it] determine[s] whether
the search was reasonably related to legitimate penological
interests by weighing the need against the invasion.”
Supreme Court has conveyed that “[p]rison
administrators . . . should be accorded wide-ranging
deference in the adoption and execution of policies and
practices that in their judgment are needed to preserve
internal order and discipline and to maintain institutional
security.” Bell, 441 U.S. at 547.
“Correctional officials have a legitimate interest,
indeed a responsibility, to ensure that jails are not made
less secure by reason of what new detainees may carry in on
their bodies.” Florence, 566 U.S. at 322. This
is particularly true during the initial intake of a detainee.
Indeed, the Supreme Court has consistently found invasive
searches intended to keep contraband from entering detention
facilities objectively reasonable. See, e.g.,
id. at 334- 35 (rectal searches permissible for all
detainees, even those detained for minor offenses);
Bell, 441 U.S. at 520 (cavity searches).
search here, which included only a frisk, was limited in
scope and justified by the legitimate interest of keeping
contraband out of the detention center. Thus, the Intake
Staff did not violate Gynnya's constitutional rights by
performing an intake search.
also disputes how the Intake Staff carried out the search,
including the force used. [DE 61-1 at 581-82; DE 79 at 808].
“Determining whether the force used to effect a
particular seizure is ‘reasonable' under the Fourth
Amendment requires a careful balancing of the nature and
quality of the intrusion on the individual's Fourth
Amendment interest against the countervailing governmental
interests at stake.” Graham, 490 U.S. at 396.
“This standard contains a built-in measure of deference
to the officer's on-the-spot judgment about the level of
force necessary in light of the circumstances of the
particular case.” Phelps v. Coy, 286 F.3d 295,
299 (6th Cir. 2002) (citing Graham, 490 U.S. at
Village Standard Operating Procedure 702 (“SOP
702”) establishes the appropriate procedures for the
intake process. [See DE 61-4 at 590]. It states that
“[t]he resident will be required to remove any outer
coat or cap and place it on the floor next to him/her,
” and that “[a]ny juvenile cleared to be admitted
and is combative, aggressive[, ] or non-compliant will be
secured in an Intake Holding Room until control is regained
and the intake process can be safely completed.”
than as noted above, McMillen does not question the
constitutionality of the intake procedures, which the Intake
Staff violated by not securing Gynnya in a holding room until
she complied. Rather, McMillen questions the
constitutionality of the Intake Staff's actions in
violating those procedures. See Stoudemire, 705 F.3d
considering the acts of officials sued in their individual
capacities, an official's violation of internal operating
procedures does not, without more, amount to a constitutional
violation. Id. And while contrary to SOP 702, the
Intake Staff's response to Gynnya's refusal to remove
her hoodie jacket was an objectively reasonable method to
maintain order and effectuate the intake search. The Intake
Staff's decision to restrain Gynnya served the interests
of maintaining institutional safety, particularly in light of
Gynnya's belligerent behavior. See Griffin v.
Hardrick, 604 F.3d 949, 954-55 (6th Cir. 2010) (no
excessive force when officials performed a “leg-sweep
maneuver” to subdue a non-compliant inmate); Erby
v. Ray, 47 Fed.Appx. 744, 745 (6th Cir. 2002) (upholding
a cell extraction and the use of gas after an inmate refused
to remove his hand from the food slot in his cell door);
Boyd v. Halley, No. 3:16-CV-00697, 2017 WL 3453292,
at *4 (M.D. Tenn. Aug. 11, 2017), report and
recommendation adopted, No. 3:16-CV-00697, 2017 WL
4150460 (M.D. Tenn. Sept. 19, 2017). As a result, a
reasonable jury could not find that the Intake Staff's
use of force was excessive, and the use of force therefore
did not violate Gynnya's Fourth Amendment rights.
Intake Staff's decision to remove the mattress pad from
Gynnya's cell is another matter, however. “The
Sixth Circuit has long adhered to the view that the Fourth
Amendment prohibits excessive force under certain pre-trial
circumstances.” Hanson v. Madison Cty. Det.
Ctr., 736 Fed.Appx. 521, 528 (6th Cir. 2018) (citing
McDowell, 863 F.2d at 1306). The Fourth
Amendment's prohibition on excessive force controls not
only “the permissible duration of
‘warrantless, post-arrest, pre-arraignment custody,
'” but also “the condition of such
custody.” Aldini, 609 F.3d at 866 (quoting
Pierce v. Multnomah Cty., 76 F.3d 1032, 1043 (9th
the Fourth Amendment's reasonableness standard guides
this case because there had been no probable-cause hearing,
the Supreme Court's Fourteenth Amendment jurisprudence on
pretrial detention is instructive. See Roberts v. City of
Troy, 773 F.2d 720, 723 (6th Cir. 1985) (analogizing
“the eighth amendment rights of prisoners . . . to
those of detainees under the fourteenth amendment, to avoid
the anomaly of extending greater constitutional protection to
a convict than to one awaiting trial” (citations
omitted)). The Constitution protects those in state custody
from punishment because a “person lawfully committed to
pretrial detention has not been adjudged guilty of any crime.
He has had only a judicial determination of probable cause as
a prerequisite to the extended restraint of his liberty
following arrest.” Bell, 441 U.S. 520, 536
(internal quotation marks, citation, and alterations
omitted). Thus, the Court has said that “the Due
Process Clause protects a pretrial detainee from the use of
excessive force that amounts to punishment.”
Graham, 490 U.S. at 395 n.10 (citing Bell,
441 U.S. at 535-539). To determine whether an action is a
permissible restraint or an impermissible punitive measure,
courts consider whether there is “objective evidence
that the challenged governmental action is not rationally
related to a legitimate governmental objective or that it is
excessive in relation to that purpose.” Kingsley v.
Hendrickson, 135 S.Ct. 2466, 2473-74 (2015).
asserts that the Intake Staff removed the mattress pad from
Gynnya's cell to punish Gynnya for her failure to
cooperate during the intake search. [See DE 1 at
¶¶ 31, 87; DE 1-11, Ex. J; DE 79 at
801]. Gaudern removed the mattress pad after a
difficult intake process. [DE 79 at 800-01; DE 79-2 at 812].
In their responses and other filings, the Intake Staff have
offered no justification for the removal of the mattress pad
moments before the Intake Staff placed Gynnya in the cell.
Indeed, they have declined to address the issue.
undisputed facts, considered with the Intake Staff's
failure to explain its decision to remove the mattress pad
after the search, present “objective evidence that the
challenged governmental action is not rationally related to a
legitimate governmental objective.” Kingsley,
135 S.Ct. at 2473-74. And because of their silence on the
matter, the Intake Staff offers no “countervailing
governmental interest at stake” to counterbalance the
intrusion into Gynnya's Fourth Amendment right to be free
from unreasonable custodial conditions. Graham, 490
U.S. at 396; Aldini, 609 F.3d at 866. While, for the
reasons discussed, the intake process was itself proper, the
difficult intake process and Intake Staff's later
behavior are objective evidence that the Intake Staff removed
the mattress pad to punish Gynnya. The Supreme Court's
Fourteenth Amendment jurisprudence forbidding officials from
punishing pretrial detainees not yet adjudged guilty of a
crime is particularly compelling in cases like this, where
the detainee had not even had a probable-cause hearing.
See Roberts, 773 F.2d at 723.
these reasons, the Intake Staff did not violate the
Constitution during the intake search, but a jury could find
that the Intake Staff behaved unreasonably when they removed
the mattress pad from Gynnya's cell.
Clearly Established Right
an official's behavior violates the Constitution,
however, qualified immunity applies unless the official's
conduct violates a clearly established right.
Pearson, 555 U.S. at 232. The official's conduct
violates clearly established right “when, at the time
of the challenged conduct, ‘[t]he contours of [a] right
[are] sufficiently clear'” that every
“reasonable official would have understood that what he
is doing violates that right.” Ashcroft v.
al-Kidd, 563 U.S. 731, 741 (2011) (citing
Creighton, 483 U.S. at 640). A case directly on
point is not required. Id. Instead, existing
precedent must place the constitutional question beyond
debate. Id. “In other words, existing
precedent must have placed the statutory or constitutional
question beyond debate.” Reichle v. Howards,
566 U.S. 658, 664 (2012) (internal quotation marks and
examining “existing precedent, ” the Court looks
“first to decisions of the Supreme Court, ” then
to Sixth Circuit cases and “decisions of other courts
within the circuit, and then to decisions of other Courts of
Appeal.” Andrews v. Hickman Cty., 700 F.3d
845, 853 (6th Cir. 2012). Although the conduct at issue in
those cases need not be identical, the legal precedent
“must dictate, that is, truly compel (not just suggest
or allow ...