Opinion
NO. 2016-CA-001805-MR
02-01-2019
BOYLE FISCAL COURT; BOYLE COUNTY DETENTION CENTER; BARRY HARMON (BOYLE COUNTY JAILER); AND JOHN/JANE DOE (INDIVIDUALLY, AND IN HIS/HER CAPACITY AS DEPUTY JAILER, BOYLE COUNTY JAIL) APPELLANTS v. JACK C. HILL, II APPELLEE
BRIEFS FOR APPELLANT: Bruce E. Smith Henry E. Smith Nicholasville, Kentucky BRIEF FOR APPELLEES: Winfield M. Frankel Danville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM BOYLE CIRCUIT COURT
HONORABLE DARREN W. PECKLER, JUDGE
ACTION NO. 15-CI-00406 OPINION
AFFIRMING IN PART AND REVERSING IN PART
** ** ** ** **
BEFORE: ACREE, D. LAMBERT AND K. THOMPSON, JUDGES. ACREE, JUDGE: Boyle County Fiscal Court, Boyle County Detention Center, Barry Harmon (Boyle County Jailer), and John Doe/Jane Doe, individually and in his/her capacity as Deputy Jailer bring this interlocutory appeal of the Boyle Circuit Court's order denying their claims of immunity and denying summary judgment on limitations grounds. We have jurisdiction to review that order only as it relates to claims of immunity. Baker v. Fields, 543 S.W.3d 575, 578 (Ky. 2018). Thus focused, we reverse, in part, and affirm, in part.
Judge Debra Hembree Lambert concurred in this opinion prior to her accepting election to the Kentucky Supreme Court effective January 7, 2019.
The John Doe/Jane Doe defendant/appellant is identified in the complaint as one person. For ease of reading, that party shall be referred to in this opinion as the Deputy Jailer, using male pronouns where applicable.
FACTUAL AND PROCEDURAL BACKGROUND
On January 25, 2014, Jack Hill became an inmate at the Boyle County Detention Center. On or about June 28, 2014, while incarcerated, he was in a fight with another prisoner and broke the tip of his pinky finger. He did not fill out a Request for Medical Services, nor did he need to do so. Detention Center Nurse Mona Wayne, LPN, said the:
Between February 17, 2014, and October 6, 2014, Hill submitted 14 Requests for Medical Services for a variety of complaints, including: sore shoulder from surgery three years earlier; nightmares and sleeplessness; dry facial skin; sneezing, scratchy throat and stuffy head; broken tooth; headache; and upset stomach. (R. 52-65).
Jail physician was notified . . . when Mr. Hill broke his finger. There is nothing to do but treat with Ibuprophin [sic] and splint the finger. His break is at the very tip. We have splinted his finger as Dr. ordered. I ordered a special splint for his finger because he works as a trustee so he wouldn't reinjury [sic] his finger. The finger is going to take time to heal because of the location. . . .(R. 49).
About five weeks after this initial treatment, on August 3, 2014, Hill signed and submitted to the Jailer an Inmate Grievance Form in which he stated:
Between February 3, 2014, and September 15, 2014, Hill submitted five additional Inmate Grievance Forms identifying the following complaints: funds not deposited into his account; lack of heat; inadequate bedding; a deputy holding a cigarette on his way outside to smoke in violation of rules; disrespect from deputies; not being provided a fingernail clipper; and not being allowed to finish a phone call. (R. 46-51).
have had broken finger for approx. 5 weeks. Have yet to see a Doctor, and finger is not any better. Turning black + blue more every day!(Id.) In addition to describing the initial treatment, Nurse Wayne also stated:
I notified the Dr. again today [August 4, 2014] with an update. She stated again that there was not much medical staff could do for the fingertip. She did order an x-ray.(Id.) That same day, Hill read Nurse Wayne's response and signed the Form stating, "I am satisfied with this informal resolution to my grievance." (Id.)
According to Hill's complaint, he continued to ask for medical treatment but received none. Hill further alleged that after his release from the Detention Center, he underwent surgery on his injured finger. He then filed suit against the Boyle County Fiscal Court, Bill Harmon as the Boyle County Jailer, and the Deputy Jailer alleging they all failed to provide adequate medical treatment for his broken finger, exacerbating the injury and requiring the surgery.
Contrary to this allegation in the complaint, Hill's brief to this Court says before he was "released from custody on October 31, 2014[,] . . . Hill was taken, by Boyle County Detention Center employees, to a surgeon on October 15, 2014." (Appellee's brief, p. 5).
Appellants moved for summary judgment based on the limitations period applicable to negligence claims and on immunity grounds. However, "an appellate court reviewing an interlocutory appeal of a trial court's determination of a defendant's immunity from suit is limited to the specific issue of whether immunity was properly denied, nothing more." Baker, 543 S.W.3d at 578. We cannot and will not review the challenge to the circuit court's ruling regarding the limitations period. We will dispense with further discussion of claims or arguments regarding issues other than immunity.
Regarding immunity, Appellants argued before the circuit court that the claims against Boyle County Fiscal Court, the Boyle County Detention Center, the Boyle County Jailer, and the Deputy Jailer in his official capacity are claims against Boyle County and, therefore, barred by sovereign, governmental, or official immunity. They further argued that claims against the Deputy Jailer in his individual capacity were also barred. They asserted responding to an Inmate Grievance Form is a discretionary function undertaken within the scope of the Deputy Jailer's duties and that his response to Hill's grievance lacked all indicia of bad faith. Therefore, they claimed, qualified official immunity applies.
"[S]overeign immunity, for the state itself, has long been the rule in Kentucky. . . . [I]t is really a common law concept that recognizes a quality (immunity from suit) of the sovereign state: 'Absolute immunity from suit is a high attribute and prerogative of sovereignty. . . . This immunity has come down to us as a part of the fundamental common law . . . .' [Kentucky State Park Comm'n v.] Wilder, [206 Ky. 190,] 84 S.W.2d [38,] 39 [(1935)]. . . . Counties, which predate the existence of the state and are considered direct political subdivisions of it, enjoy the same immunity as the state itself." Comair, Inc. v. Lexington-Fayette Urban County Airport Corp., 295 S.W.3d 91, 94 (Ky. 2009).
"'"[G]overnmental immunity" is the public policy, derived from the traditional doctrine of sovereign immunity, that limits imposition of tort liability on a government agency.' Yanero v. Davis, 65 S.W.3d 510, 519 (Ky. 2001) (citing 57 Am.Jur.2d, Municipal, County, School and State Tort Liability, § 10 (2001)). '[A] state agency is entitled to immunity from tort liability to the extent that it is performing a governmental, as opposed to a proprietary, function.' Yanero, 65 S.W.3d at 519 (citing 72 Am.Jur.2d, States, Territories and Dependencies, § 104 (1974))." University of Louisville v. Rothstein, 532 S.W.3d 644, 647 n.1 (Ky. 2017).
"'Official immunity' is immunity from tort liability afforded to public officers and employees for acts performed in the exercise of their discretionary functions. It rests not on the status or title of the officer or employee, but on the function performed. Salyer v. Patrick, 874 F.2d 374 (6th Cir.1989). Official immunity can be absolute, as when an officer or employee of the state is sued in his/her representative capacity, in which event his/her actions are included under the umbrella of sovereign immunity . . . ." Yanero v. Davis, 65 S.W.3d 510, 521 (Ky. 2001).
In response, Hill did not challenge the claim of sovereign or governmental immunity of the Fiscal Court or Detention Center, or the official immunity of the Jailer or Deputy Jailer. He focused only on the claim of qualified official immunity claimed by the Deputy Jailer, asserting the duty to provide medical care to inmates is ministerial in nature rather than discretionary.
A hearing was held on the motion and the Boyle Circuit Court entered an order denying the summary judgment motion in toto. This appeal followed.
STANDARD OF REVIEW
The sole issue in this appeal is whether the circuit court erred in concluding that none of the Appellants are entitled to immunity. While denials of summary judgment are typically not appealable, an order denying a claim of immunity is subject to immediate appeal. Breathitt Cty. Bd. of Educ. v. Prater, 292 S.W.3d 883, 886-87 (Ky. 2009). Whether a defendant is entitled to qualified immunity is a question of law. Rowan Cty. v. Sloas, 201 S.W.3d 469, 475 (Ky. 2006) (citing Jefferson Cty. Fiscal Court v. Peerce, 132 S.W.3d 824, 825 (Ky. 2004)). Accordingly, our review is de novo. Id. (citing Estate of Clark ex rel. Mitchell v. Daviess Cty., 105 S.W.3d 841, 844 (Ky. App. 2003)).
ANALYSIS
As noted, the trial court's decision to deny Appellants' summary judgment motion on grounds other than immunity is not reviewable at this stage. Baker, 543 S.W.3d at 578. Accordingly, our analysis, like our recitation of the facts and procedures, is limited to the question of immunity.
"Kentucky counties are cloaked with sovereign immunity." Lexington-Fayette Urban County Government v. Smolcic, 142 S.W.3d 128, 132 (Ky. 2004). Counties are viewed as political subdivisions of the State, and thus, are entitled to sovereign immunity. Comair v. Lexington-Fayette Urban County Airport Corp., 295 S.W.3d 91, 94-5 (Ky. 2009). "Any action against fiscal court members in their official capacities is essentially an action against the county which is barred by sovereign immunity. The absolute immunity from suit afforded to the state also extends to public officials sued in their representative (official) capacities, when the state is the real party against which relief in such cases is sought." Estate of Clark ex rel. Mitchell, 105 S.W.3d at 844 (citations omitted); see also Commonwealth of Kentucky Board of Claims v. Harris, 59 S.W.3d 896 (Ky. 2001) (claims against a jailer in his official capacity are equivalent to claims against the county). Similarly, the Detention Center is entitled to the shield of sovereign immunity as the "alter ego" of the county. Bryant v. Pulaski County Detention Center, 330 S.W.3d 461, 465 (Ky. 2011). Accordingly, the Boyle County Fiscal Court, the Boyle County Detention Center, Barry Harmon as the Boyle County Jailer, and the Deputy Jailer in his official capacities are entitled to the protection of sovereign, governmental, and official immunity, respectively, and the circuit court erred in failing to dismiss those parties from the lawsuit.
Hill raises another issue related to the immunity claim. He alleges Jailer Barry Harmon is vicariously liable for the conduct of the Deputy Jailer pursuant to KRS 71.060 which says a "jailer shall be liable on his official bond for the conduct of his deputies." KRS 71.060(1). However, "[t]he official bond of the jailer relates only to his financial responsibility in connection with disbursing public money handled by the jailer and his deputies. The plain meaning of this statute cannot impute vicarious liability to the jailer for personal injuries caused by deputy jailers." Franklin County, Ky. v. Malone, 957 S.W.2d 195, 200 (Ky. 1997), overruled on other grounds by Harris, 59 S.W.3d 896. Furthermore, persons entitled to immunity (as we have already found regarding the Jailer) cannot be vicariously liable for negligence of persons employed by them. Sloas, 201 S.W.3d at 476. As the Supreme Court said:
Kentucky Revised Statutes.
The "no vicarious liability" principle recognizes that an otherwise immune entity does not lose that status merely because its agents or servants can be held liable for the negligent performance of their ministerial duties. Otherwise, there could be no governmental immunity because state agencies perform their governmental functions by and through their agents, servants and employees.Williams v. Kentucky Dep't of Educ., 113 S.W.3d 145, 154 (Ky. 2003).
The remaining claims are against the Deputy Jailer in his individual capacity. A public official sued in his individual capacity may be entitled to a claim of qualified official immunity. The doctrine of qualified official immunity shields public officers and employees from liability for the negligent performance of discretionary acts if done in good faith and within the scope of their authority. Nelson Cty. Bd. of Educ. v. Forte, 337 S.W.3d 617, 621 (Ky. 2011); Yanero v. Davis, 65 S.W.3d 510, 521 (Ky. 2001). "Application of the defense, therefore, rests not on the status or title of the officer or employee, but on the [act or] function performed." Haney v. Monsky, 311 S.W.3d 235, 240 (Ky. 2010) (internal quotation marks and citations omitted).
Discretionary acts involve "the exercise of discretion and judgment, or personal deliberation, decision, and judgment[.]" Yanero, 65 S.W.3d at 522. Such acts "require the exercise of reason in the adaptation of means to an end, and discretion in determining how or whether the act shall be done or the course pursued." Haney, 311 S.W.3d at 240. Conversely, "ministerial acts or functions—for which there are no immunity—are those that require 'only obedience to the orders of others, or when the officer's duty is absolute, certain, and imperative, involving merely execution of a specific act arising from fixed and designated facts.'" Id. (citing Yanero, 65 S.W.3d at 522). Because "few acts are ever purely discretionary or purely ministerial[,]" our analysis should focus on "the dominant nature of the act" or function at issue. Id. (emphasis in original). Ultimately, "the decision as to whether a public official's acts are discretionary or ministerial must be determined by the facts of each particular case[.]" Jerauld ex rel. Robinson v. Kroger, 353 S.W.3d 636, 640-41 (Ky. App. 2011) (quoting Caneyville Volunteer Fire Dep't v. Green's Motorcycle Salvage, Inc., 286 S.W.3d 790, 809 n.9 (Ky. 2009)).
Hill cites no statute or regulation establishing any duty. However, reading his complaint liberally with an eye to sustaining the circuit court's ruling, his claim is that Appellants violated their duty to "treat [him] humanely and provide for proper medical attention and treatment when so required." (R. 4). Hill asserts the Deputy Jailer failed to carry out this duty and, therefore, his injury worsened. Hill claims the duty to provide medical care to inmates is a ministerial function. The Deputy Jailer disagrees, contending that the manner in which he must respond to an Inmate Grievance Form is a discretionary act within the scope of his duties. Regarding the distinction between the two kinds of duties, our Supreme Court recently said this:
Hill relies on Gould v. O'Bannon, 770 S.W.2d 220 (Ky. 1989) and Blue v. Pursell, 793 S.W.2d 823 (Ky. App. 1989) for his contention that providing medical care to inmates is a ministerial function. However, those cases address the actions of defendant healthcare professionals at state-owned hospitals. We do no find those cases applicable here.
In recent years, very little has been added to improve upon the explanation given more than 50 years ago by our predecessor court in Upchurch v. Clinton Cnty., 330 S.W.2d 428, 430 (Ky. 1959), and we find it worth repeating here:
The essentials of a ministerial as contrasted with a discretionary act are thus set forth in 43 Am.Jur., Public Officers, sec. 258, p. 75: 'An official duty is ministerial when it is absolute, certain, and imperative, involving merely execution of a specific act arising from fixed and designated facts; that a necessity may exist for the ascertainment of those facts does not operate to convert the act into one discretionary in its nature. Discretionary . . . duties are such as necessarily require the exercise of reason in the adaptation of means to an end, and discretion in determining how or whether the act shall be done or the course pursued. Discretion in the manner of the performance of an act arises when the act may be performed in one or two or more ways, either of which would be lawful, and where it is left to the will or judgment of the
Gaither v. Justice & Pub. Safety Cabinet, 447 S.W.3d 628, 633-34 (Ky. 2014).performer to determine in which way it shall be performed. However, an act is not necessarily taken out of the class styled 'ministerial' because the officer performing it is vested with a discretion respecting the means or method to be employed.
Applying these principles, we revisit Hill's claim. Again, reading the complaint liberally, Hill is not alleging an inadequate response to his August 3, 2014 Inmate Grievance Form. He is claiming a failure to provide medical care. That leads us to consider legislation creating that duty.
As stated in 501 KAR 3:140 § 8, "Each prisoner shall be afforded access to necessary medical care." Although discretion may be involved regarding the manner in which this duty is satisfied, the Deputy Jailer does not have any discretion whether to satisfy it. Gaither, 447 S.W.3d at 634. Assuring that inmates have access to necessary medical care is a ministerial duty.
Kentucky Administrative Regulations. --------
Hill has not alleged in his complaint or argued before either the circuit court or this Court that the Deputy Jailer failed to provide "emergency medical . . . care" as that duty is set out in 501 KAR 3:090 § 1(13). The record shows his first complaint about medical care came five weeks after the finger was broken. The only ministerial duty at issue is the duty to "afford[ Hill] access to necessary medical care . . . ." 501 KAR 3:140 § 8. He identified in his August 3, 2014 Inmate Grievance Form the necessary medical care he alleged the Deputy Jailer failed to provide - an x-ray and consultation with a doctor. Whether such medical care was "necessary medical care[,]" whether it was or was not provided and, if it was deprived, whether depriving it was a breach of the aforesaid ministerial duty are questions for the factfinder. The Deputy Jailer is not entitled to qualified official immunity.
CONCLUSION
The Boyle Circuit Court's order denying summary judgment is reversed as to Hill's claims against Boyle Fiscal Court, Boyle County Detention Center, Barry Harmon as the Boyle County Jailer, and the Deputy Jailer in his official capacity. With respect to the Deputy Jailer in his individual capacity, the Boyle Circuit Court's summary judgment order is affirmed.
LAMBERT, D., JUDGE, CONCURS.
THOMPSON, K., JUDGE, CONCURS IN RESULT ONLY. BRIEFS FOR APPELLANT: Bruce E. Smith
Henry E. Smith
Nicholasville, Kentucky BRIEF FOR APPELLEES: Winfield M. Frankel
Danville, Kentucky