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McMillen v. Windham

United States District Court, W.D. Kentucky, Louisville Division

August 26, 2019

MICHELLE MCMILLEN, Individually and as Administratrix of the ESTATE OF GYNNYA MCMILLEN Plaintiff
v.
REGINALD WINDHAM, ET AL. Defendants

          MEMORANDUM OPINION AND ORDER

          Rebecca Grady Jennings, District Judge United States District Court

         Plaintiff 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 ripe.

         For the 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 129].

         BACKGROUND

         On 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].

         When 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 at 580].

         Defendants 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].

         As part 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].

         Defendants 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].

         At 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 ¶ 49].

         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].

         According 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].

         The 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.].

         McMillen, 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].

         DISCUSSION

         I. Motions to Dismiss

         Commissioner 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.

         McMillen 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.

         Commissioner 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 judgment analysis.

         II. Motions for Summary Judgment

         A. Standard

         Summary 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).

         A 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.

         B. Discussion

         1. Excessive Force (Count I)

         a. Gaudern, Kevin Johnson, and Rivers, and Assistant Superintendent Price

         McMillen 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].[1] The Intake Staff assert that qualified immunity protects them from McMillen's § 1983 claims. [DE 61].[2]

         “Qualified 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)).

         The 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) (citations omitted)).

         The 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)).

         The 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].

         i. Constitutional Violation

         “In 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).

         When authorities arrest an individual without a warrant, the Fourth Amendment's reasonableness standard applies until a probable-cause hearing occurs, after which the Fourteenth Amendment's more-stringent “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 (1991)).

         McMillen 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 standard.

         “The 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.” Id.

         The 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).

         The 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.

         McMillen 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 395).

         Lincoln 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.” [Id.].

         Other 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 at 574.

         When 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.

         The 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 Cir. 1996)).

         While 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).

         McMillen 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].[3] 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.

         The 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.

         For 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.

         ii. Clearly Established Right

         Even if 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 citation omitted).[4]

         In 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 ...


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